|GLOSSARY OF DEFINED TERMS|
|Court||The Court of Arbitration in these proceedings as constituted pursuant to Article IX(5) and Annexure G of the Treaty|
|KHEP||Kishenganga Hydro-Electric Project|
|India's Comments, CEAReport, August 2013||India's Comments on the Information Supplied by Pakistan on 21 June 2013, Vol. 2, Tab B, Central Electricity Authority, "Further Submissions on Impact of Minimum Releases from KHEP on Power Generation at KHEP," August 2013|
|India's Comments, CWCReport, August 2013||India's Comments on the Information Supplied by Pakistan on 21 June 2013, Vol. 2, Tab A, Central Water Commission (CWC), Government of India, "Hydrology Report," August 2013|
|India's Comments, KondolfReport, August 2013||India's Comments on the Information Supplied by Pakistan on 21 June 2013, Tab C, G Mathias Kondolf, "Environmental Flows for the Kishenganga River Below KHEP," 13 August 2013|
|India's Data Submission, CEA Report, June 2013||India's Submission on the Information Requested by the Court in its Partial Award dated 18 February 2013, Vol. 2, Tab B, Central Electricity Authority, "Impact of Minimum Releases from KHEP on Power Generation at KHEP," June 2013|
|India's Data Submission,CWC Report, June 2013||India's Submission on the Information Requested by the Court in its Partial Award dated 18 February 2013, Vol. 2, Tab A, Central Water Commission (CWC), Government of India, "Hydrology Report," June 2013|
|India's Data Submission,DHI Report, 2013||India's Submission on the Information Requested by the Court in its Partial Award dated 18 February 2013, Tab F, DHI (India) Water & Environment, "Environmental Studies for Assessment of Impacts of Minimum Flow Releases," June 2013|
|NJHEP||Neelum-Jhelum Hydro-Electric Project|
|Order on Interim Measures||Order on the Interim Measures Application of Pakistan issued by the Court on 6 June 2011|
|Pakistan's Comments,NESPAK HydrologyReport, August 2013||Pakistan's Comments on India's Response dated 21 June 2013 to the Court's Request for Further Information (Made Pursuant to Paragraph 463 of the Partial Award), Annex A, National Engineering Services Pakistan (Pvt.) Limited, "Kishenganga Dam Partial Award: NESPAK's Comments on India's CWC Hydrology Report of June 2013," August 2013|
|Pakistan's Comments, NESPAK Power Generation Report, August 2013||Pakistan's Comments on India's Response dated 21 June 2013 to the Court's Request for Further Information (Made Pursuant to Paragraph 463 of the Partial Award), Annex C, National Engineering Services Pakistan (Pvt.) Limited, "Kishenganga Dam Partial Award: NESPAK Comments on India's 'CEA' Report on Impact of Minimum Release from KHEP on Power Generation by KHEP," August 2013|
|Pakistan's DataSubmission, EnvironmentalReport, June 2013||Pakistan's Data and Information Submitted in Accordance with the Partial Award (Paragraphs 458-462), Tab A, Water Matters, Southern Waters, Hagler Bailly Pakistan, Beuster, Clarke & Associates: "Kishenganga Dam Partial Award, Data Sought: Environmental Flows," 6 June 2013|
|Pakistan's Data Submission, NESPAK Hydrology Report, June 2013||Pakistan's Data and Information Submitted in Accordance with the Partial Award (Paragraphs 458-462), Tab C, National Engineering Services Pakistan (Pvt.) Limited, "Kishenganga Dam Partial Award: Detailed Information on Hydrological Estimates," June 2013 (including peer review by Professor Jens Christian Refsgaard in Appendix V)|
|Pakistan's Data Submission, NESPAK Power Generation Report, June 2013||Pakistan's Data and Information Submitted in Accordance with the Partial Award (Paragraphs 458-462), Tab B, National Engineering Services Pakistan (Pvt.) Limited, "Kishenganga Dam Partial Award: Power Generation at Neelum-Jhelum Hydroelectric Project," June 2013|
|Pakistan's Memorial,Environmental Report,April 2011||Pakistan's Memorial, Vol. 3, Tab D, Hagler Bailly Pakistan, Water Matters, Southern Waters & Beuster, Clarke and Associates, "Kishenganga/Neelum River Water Diversion: Environmental Assessment," May 2011|
|Pakistan's Memorial,NESPAK Report, April2011||Pakistan's Memorial, Vol. 3, Tab B, National Engineering Services Pakistan (Pvt.) Limited, "Kishenganga/Neelum River, Hydrology and Impact of Kishenganga Hydroelectric Plant on Energy Generation in Pakistan," April 2011|
|Pakistan's Reply, NESPAKReport, February 2012||Pakistan's Reply, Vol. II, Tab B, National Engineering Services Pakistan (Pvt.) Limited, "NESPAK Consideration of India's Hydrology Report," February 2012|
|Partial Award||Partial Award issued by the Court on 18 February 2013|
|Parties||The Islamic Republic of Pakistan and the Republic of India|
|Treaty||Indus Waters Treaty 1960 Between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development signed at Karachi on 19 September 1960, 419 U.N.T.S. 126|
|World Bank||International Bank for Reconstruction and Development|
a. Whether India's proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar-Madmati Nallah, being one central element of the Kishenganga Project, breaches India's legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India's obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels)?
b. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency?2
152. Having found that it is necessary to lay down certain interim measures in order to "avoid prejudice to the final solution... of the dispute" as provided under Paragraph 28 of Annexure G to the Indus Waters Treaty, the Court unanimously rules that:
(1) For the duration of these proceedings up until the rendering of the Award,
(a) It is open to India to continue with all works relating to the Kishenganga Hydro-Electric Project, except for the works specified in (c) below;
(b) India may utilize the temporary diversion tunnel it is said to have completed at the Gurez site, and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel, such tunnel being provisionally determined to constitute a "temporary by-pass" within the meaning of Article I(15)(b) as it relates to Article III(2) of the Treaty;
(c) Except for the sub-surface foundations of the dam stated in paragraph 151(iv) above, India shall not proceed with the construction of any permanent works on or above the Kishenganga/Neelum River riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel; and
(2) Pakistan and India shall arrange for periodic joint inspections of the dam site at Gurez in order to monitor the implementation of sub-paragraph 1(c) above. The Parties shall also submit, by no later than December 19, 2011, a joint report setting forth the areas of agreement and any points of disagreement that may arise between the Parties concerning the implementation of this Order.
153. The Court shall remain actively seized of this matter, and may revise this Order or issue further orders at any time in light of the circumstances then obtaining.
Having considered the Parties' written and oral submissions, the Court of Arbitration unanimously decides:
A. In relation to the First Dispute,
(1) The Kishenganga Hydro-Electric Project, as described to the Court by India, constitutes a Run-of-River Plant for the purpose of Paragraph 15 of Annexure D to the Indus Waters Treaty, and in particular sub-paragraph (iii) thereof.
(2) India may accordingly divert water from the Kishenganga/Neelum River for power generation by the Kishenganga Hydro-Electric Plant and may deliver the water released below the power station into the Bonar Nallah.
(3) India is however under an obligation to construct and operate the Kishenganga Hydro-Electric Plant in such a way as to maintain a minimum flow of water in the Kishenganga/Neelum River, at a rate to be determined by the Court in a Final Award.
B. In relation to the Second Dispute,
(1) Except in the case of an unforeseen emergency, the Treaty does not permit reduction below Dead Storage Level of the water level in the reservoirs of Run-of-River Plants on the Western Rivers.
(2) The accumulation of sediment in the reservoir of a Run-of-River Plant on the Western Rivers does not constitute an unforeseen emergency that would permit the depletion of the reservoir below Dead Storage Level for drawdown flushing purposes.
(3) Accordingly, India may not employ drawdown flushing at the reservoir of the Kishenganga Hydro-Electric Plant to an extent that would entail depletion of the reservoir below Dead Storage Level.
(4) Paragraphs B(1) and B(2) above do not apply to Run-of-River Plants that are in operation on the date of issuance of this Partial Award. Likewise, Paragraphs B(1) and B(2) do not apply to Run-of-River Plants already under construction on the date of issuance of this Partial Award, the design of which, having been duly communicated by India under the provisions of Annexure D, had not been objected to by Pakistan as provided for in Annexure D.
C. This Partial Award imposes no further restrictions on the construction and operation of the Kishenganga Hydro-Electric Plant, which remain subject to the provisions of the Treaty as interpreted in this Partial Award.
D. To enable the Court to determine the minimum flow of water in the Kishenganga/Neelum River referred to in paragraph A(3) above, the Parties are required to submit to the Court the information specified in paragraphs 458 to 462 within the time periods set out in paragraph 463 of this Partial Award.
E. The interim measures indicated by the Court in its 23 September 2011 Order on the Interim Measures Application of Pakistan dated 6 June 2011 are hereby lifted.
F. The costs of the proceedings to be awarded by the Court pursuant to Paragraph 26 of Annexure G to the Treaty shall be determined in the Court's Final Award.
458. The Parties are requested to provide further data concerning the impacts of a range of minimum flows to be discharged at the KHEP dam on the following:
a) power generation at the KHEP;
b) environmental concerns from the dam site at Gurez to the Line of Control;
a) power generation at the NJHEP [Neelum-Jhelum Hydro-Electric Project];
b) agricultural uses of water downstream of the Line of Control to Nauseri; and
c) environmental concerns at and downstream of the Line of Control to Nauseri.
459. In compiling these further data, the Parties are required to incorporate a sufficient range of minimum flows so as to give the Court a full picture of the sensitivity of the river system.
460. These data should be accompanied by full information on the assumptions underlying these analyses, including those for power generation and environmental concerns, and the associated uncertainty in the Parties' estimates.
461. In addition, the Court would welcome receiving more detailed information on the estimates already put before it by each Party of historical flows at the KHEP dam site, at the Line of Control and at the NJHEP dam site.668
462. Finally, the Court would also welcome provision by the Parties of any relevant legislation, regulatory pronouncements or decisions that the Governments of Pakistan and India may have respectively issued concerning environmental flow requirements for hydro-electric or similar projects and, in particular, the Government of India for the KHEP.669
463. The Parties are requested to provide the foregoing information to the Court by no later than 120 days from the issuance of this Partial Award (i.e., by 19 June 2013). Each Party is invited to then comment on the information submitted by the other Party no later than 60 days thereafter (i.e., by 19 August 2013). After considering these submissions, the Court will issue its Final Award setting forth its decision on this matter, and will exert its best effort to do so by no later than the end of 2013.
At the request of either Party, made within three months of the date of the Award, the Court shall reassemble to clarify or interpret its Award. Pending such clarification or interpretation the Court may, at the request of either Party and if in the opinion of the Court circumstances so require, grant a stay of execution of its Award. After furnishing this clarification or interpretation, or if no request for such clarification or interpretation is made within three months of the date of the Award, the Court shall be deemed to have been dissolved.
Having considered the Parties' written submissions, the Court of Arbitration unanimously decides that:
A. India's Request for Clarification or Interpretation of the Court's Partial Award of 18 February 2013 is timely and admissible.
B. Subject to Paragraph B(4) of the Decision in the Partial Award of 18 February 2013, the prohibition on the reduction below Dead Storage Level of the water in the reservoirs of Run-of-River Plants on the Western Rivers, except in the case of unforeseen emergency, is of general application.
[i]n the case of Pakistan, these are the daily flow data corresponding to Annexes 3, 4 and 9 of Pakistan's Memorial, vol. 3, Tab B, National Engineering Services Pakistan Limited, "Kishenganga/Neelum River: Hydrology and Impact of Kishenganga Hydroeletric Plant on Energy Generation in Pakistan," April 2011 (covering the period from 1971 to 2004). In the case of India these are daily flow estimates from the KHEP and the Line of Control for the same period.
• For every cumec of minimum release below KHEP dam, there is a definite loss in power generation at KHEP.
• The winter months from the October to March are associated with low flows and the power generation will be adversely affected during these months on account of minimum releases from KHEP dam. This reduction would be almost Linear in nature.
• The average annual loss in energy generation at KHEP is the maximum in 90% Dependable Year (Dry Year) viz. about 16% [with a 10-cumec minimum release] which works out as around 32 MU per cumec.
• On monthly basis, the loss in energy on account of minimum release below KHEP dam would be significant in Dry Year (90% dependable year) with the loss being as high as 80.2% in percentage terms in the month of December corresponding to minimum release of 10 cumec.66
even this 7.2 cumec scenario would result in the KHEP being able to operate at its design discharge for only four months of the year - a result that would run counter to the Court's admonition that the KHEP must not be made to operate at only a small fraction of its design capacity. Moreover, a minimum release of 7.2 cumec would also not reflect the Court's finding that the KHEP has priority in right to the waters, a factor which strongly militates in favour of a lower minimum release, and the fact that Pakistan's losses have been overstated as a result of its new claim and the use of non-Treaty flow data.73
The UK, the USA and Australia vary slightly in the numbers they give, but generally they recommend that for the maintenance of good ecological condition in high-gradient rivers, daily flows should never fall below about 70% of natural. This number should increase to 80-90% in the dry season, with the percentage of flow remaining in the river being higher the lower the flow is. African studies suggest that 60-70% or more of natural dry season daily flow is needed to maintain a Category B river while more than 40% is needed for a Category C river.... African studies tend to recommend lower percentages than those of the UK, Australia and the USA.
All of the scenarios would meet these recommended standards for wet season flows. K40 to K100, and KH1E9 and KH2E8 would meet the UK, USA and Australian recommendations for dry season flows... and K20, KH3E7 and KVT1 would be somewhat below them.... These latter three would also meet or come close to meeting the African recommendations for Category B rivers, while K10, KH5E5. KH7E3 and KVT2.... would meet the recommendation for a Category C river. The remaining three scenarios... would be well below any of the internationally recognised standards reviewed here for high-altitude, high-gradient, scenic rivers.94
Scenarios K40-100, while offering the best prospects for river condition (high C), provide the lowest amounts of water for diversion to KHEP....
Scenarios KVT1, KVT2. KH3E7 and K20 offer slightly higher levels of diversion and a lower Category C river condition. This condition is lower than would generally be considered appropriate for such a river.
The other scenarios would not generally be seen among river scientists as offering an acceptable condition for such a river.95
argument that a release of 4.25 m3/s will be adequate to avoid serious adverse impacts on the river is based upon selective references to a couple of parameters that give results favourable to India, completely ignoring the recognized methodologies for addressing these questions, and ignoring the obviously dramatic impact on the flows along the river at the LOC [Line of Control].104
The only questions that remain, therefore, are whether the KHEP will cause significant adverse effects on fish and macro-invertebrates below the LOC, and possibly: whether the KHEP will have any significant adverse effects on the Musk Deer National Park if the effects of Pakistan’s proposed dams are not considered; and whether the KHEP will cause significant degradation of the aquatic environment in certain stretches of the river (which Pakistan argued and India refuted in earlier pleadings) other than with respect to the alleged impact on fish and macro-invertebrates.109
The reach between the dam and the first tributary is the most vulnerable to reductions in flow and the site at 6km downstream show the 90th and 99.9th percentile flows as dropping below the minimum 0.5 m depth specified for brown and snow trout. However, Triplophysa [Tibetan stone loach] would have sufficient depths even with a minimum flow of 2.0 m3/s. Thus, the analysis indicates depths would drop below minimum depth requirements for trout species about 10 percent of the time in the upper 5.7-km reach below the dam. Downstream of this point, contribution of runoff from the tributaries will dilute the effects of the dam on flow regime.113
an order from the Court that the flow regime be supported by India providing to Pakistan, on a real time basis, (i) daily flow data from gauges recording the inflow into the KHEP reservoir and the outflow below the KHEP dam, as well as (ii) the reservoir level, and (iii) with regular inspections permitted to Pakistan of the gauging stations.135
where a Plant is located on a Tributary of The Jhelum on which Pakistan has any Agricultural use or hydro-electric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent that the then existing Agricultural Use or hydro-electric use by Pakistan on the former Tributary would not be adversely affected.
The Parties differed as to the meaning of this provision and, in particular, as to what would constitute a "then existing Agricultural Use or hydro-electric use by Pakistan." After considering each Party's interpretation of the phrase, the Court considered that the proper interpretation required elements of each Party's approach to be given effect:
433. The Court considers that neither of the two approaches to interpretation discussed above—the ambulatory and critical period approaches—is fully satisfactory. Rather, the proper interpretation of Paragraph 15(iii) of Annexure D combines certain elements of both approaches. The Court is guided by the need to reflect the equipoise which the Treaty sets out between Pakistan's right to the use of the waters of the Western Rivers (including the Jhelum and its tributary, the Kishenganga/Neelum) and India's right to use the waters of those rivers for hydroelectric generation once a Plant complies with the provisions of Annexure D.
434. Pakistan's relevant uses in this context are, in the Court's view, essentially its hydro-electric uses. As for agricultural uses, the Court notes the observation of India—not contradicted by Pakistan—that there are no significant existing agricultural uses of the Kishenganga/Neelum's main river. It appears to the Court that agricultural uses in the Neelum Valley are largely met by the tributary streams that feed the river.
435. Accordingly, the Court considers that its interpretative task consists of two principal elements. The Court must first establish the critical period at which the KHEP crystallized. Consistent with Part 3 of Annexure D (particularly the notice provisions of Paragraph 9), and using the same critical period criteria, the Court must then determine whether the NJHEP was an "existing use" that India needed to take into account at the time the KHEP crystallized. As shown below, the Court's determination of the critical period leads to the conclusion that the KHEP preceded the NJHEP, such that India's right to divert the waters of the Kishenganga/Neelum for power generation by the KHEP is protected under the Treaty.
436. Second, India's right to divert the waters of the Kishenganga/Neelum cannot be absolute. The premise underlying Paragraph 15(iii)—that Pakistan's existing uses are to be taken into account in the operation of India's Plants—remains a guiding principle (albeit not to the preclusive extent of the ambulatory approach). Paragraph 15(iii) protects Pakistan's right to a portion of the waters of the Kishenganga/Neelum throughout the year for its existing agricultural and hydroelectric uses.141
445. India's right under the Treaty to divert the waters of the Kishenganga/Neelum to operate the KHEP is subject to the constraints specified by the Treaty, including Paragraph 15(iii) of Annexure D as discussed above and, in addition, by the relevant principles of customary international law to be applied by the Court pursuant to Paragraph 29 of Annexure G when interpreting the Treaty. As discussed in the following paragraphs, both of these limitations require India to operate the KHEP in a manner that ensures a minimum flow of water in the riverbed of the Kishenganga/Neelum downstream of the Plant.
446. Accepting that the KHEP crystallized prior to the NJHEP under the critical period analysis set out above, Pakistan nonetheless retains the right to receive a minimum flow of water from India in the Kishenganga/Neelum riverbed. That right stems in part from Paragraph 15(iii) of Annexure D, which gives rise to India's right to construct and operate hydro-electric projects involving inter-tributary transfers but obliges India to operate those projects in such a way as to avoid adversely affecting Pakistan's "then existing" agricultural and hydro-electric uses.653 The requirement to avoid adverse effects on Pakistan's agricultural and hydro-electric uses of the waters of the Kishenganga/Neelum cannot, however, deprive India of its right to operate the KHEP—a right that vested during the critical period of 2004-2006. Both Parties' entitlements under the Treaty must be made effective so far as possible: India's right to divert water for the operation of the KHEP is tempered by Pakistan's right to hydro-electric and agricultural uses of the waters of the Western Rivers, just as Pakistan's right to these uses is tempered by India's right to divert the waters for the KHEP's operation. Any interpretation that disregards either of these rights would read the principles of Paragraph 15(iii) out of the Treaty, to one or the other Party's injury.143
452. It is established that principles of international environmental law must be taken into account even when (unlike the present case) interpreting treaties concluded before the development of that body of law. The Iron Rhine Tribunal applied concepts of customary international environmental law to treaties dating back to the mid-nineteenth century, when principles of environmental protection were rarely if ever considered in international agreements and did not form any part of customary international law. Similarly, the International Court of Justice in Gab c ikovo-Nagymaros ruled that, whenever necessary for the application of a treaty, "new norms have to be taken into consideration, and... new standards given proper weight."664 It is therefore incumbent upon this Court to interpret and apply this 1960 Treaty in light of the customary international principles for the protection of the environment in force today.145
455. There is thus no disagreement between the Parties that the maintenance of a minimum flow downstream of the KHEP is required in response to considerations of environmental protection. The Parties differ, however, as to the quantity of water that would constitute an appropriate minimum; thus, the precise amount of flow to be preserved remains to be determined by the Court.146
having weighed the totality of the record, the Court concludes that India has a stronger claim to having coupled intent with action at the KHEP earlier than Pakistan achieved the same at the NJHEP, resulting in the former's priority in right over the latter with respect to the use of the waters of the Kishenganga/Neelum for hydro-electric power generation.156
Except as the Parties may otherwise agree, the law to be applied by the Court shall be this Treaty and, whenever necessary for its interpretation or application, but only to the extent necessary for that purpose, the following in the order in which they are listed :
(a) International conventions establishing rules which are expressly recognized by the Parties.
(b) Customary international law.159
A. In the operation of the KHEP:
(1) Subject to paragraph (2) below, India shall release a minimum flow of 9 cumecs into the Kishenganga/Neelum River below the KHEP at all times at which the daily average flow in the Kishenganga/Neelum River immediately upstream of the KHEP meets or exceeds 9 cumecs.
(2) At any time at which the daily average flow in the Kishenganga/Neelum River immediately upstream of the KHEP is less than 9 cumecs, India shall release 100 percent of the daily average flow immediately upstream of the KHEP into the Kishenganga/Neelum River below the KHEP.
B. Beginning 7 years after the diversion of water from the Kishenganga/Neelum River for power generation by the KHEP, either Party may seek reconsideration of the minimum flow in paragraph (A) above through the Permanent Indus Commission and the mechanisms of the Treaty.
C. This Final Award imposes no further restrictions on the operation of the KHEP, which remains subject to the provisions of the Treaty as interpreted in this Final Award and in the Court's Partial Award.
D. Each Party shall bear its own costs. The costs of the Court will be shared equally by the Parties.
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