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Substantive Introduction IN THE MATTER OF THE INDUS WATERS KISHENGANGA ARBITRATION -before- THE COURT OF ARBITRATION CONSTITUTED IN ACCORDANCE WITH THE INDUS WATERS TREATY 1960 BETWEEN THE GOVERNMENT OF INDIA AND THE GOVERNMENT OF PAKISTAN SIGNED ON 19 SEPTEMBER 1960 -between- THE ISLAMIC REPUBLIC OF PAKISTAN -and- THE REPUBLIC OF INDIA __________________________________________________________ PARTIAL AWARD __________________________________________________________ COURT OF ARBITRATION: Judge Stephen M. Schwebel (Chairman) Sir Franklin Berman KCMG QC Professor Howard S. Wheater FREng Professor Lucius Caflisch Professor Jan Paulsson Judge Bruno Simma H.E. Judge Peter Tomka SECRETARIAT: The Permanent Court of Arbitration 18 February 2013 PK-IN 82842 AGENTS, COUNSEL AND OTHER REPRESENTATIVES OF THE PARTIES AGENT FOR PAKISTAN: AGENT FOR INDIA: Mr Kamal Majidulla Mr Dhruv Vijai Singh Special Assistant to the Prime Minister for Secretary to the Government of India Water Resources and Agriculture Ministry of Water Resources CO-AGENTS FOR PAKISTAN: CO-AGENTS FOR INDIA: Mr Khalil Ahmad Mr Y.K. Sinha Ambassador at Large Additional Secretary (PAI) Ministry of External Affairs Mr Mohammad Karim Khan Agha Prosecutor General Dr Neeru Chadha National Accountability Bureau Joint Secretary & The Legal Adviser Ministry of External Affairs Mr Mirza Asif Baig Mirza Pakistan Commissioner for Indus Waters Mr G. Aranganathan Indian Commissioner for Indus Waters COUNSEL FOR PAKISTAN: COUNSEL FOR INDIA: Professor James Crawford SC Mr Fali S. Nariman University of Cambridge Senior Advocate Matrix Chambers Supreme Court of India Professor Vaughan Lowe QC Mr R.K.P. Shankardass University of Oxford Senior Advocate Essex Court Chambers Supreme Court of India Mr Samuel Wordsworth Mr Rodman Bundy Essex Court Chambers Eversheds LLP, Paris Ms Shamila Mahmood Professor Stephen C. McCaffrey Senior Legal Consultant McGeorge School of Law Government of Pakistan University of the Pacific Professor Daniel Barstow Magraw Johns Hopkins University Mr S.C. Sharma Advocate, Supreme Court of India REPRESENTATIVES FOR PAKISTAN: REPRESENTATIVES FOR INDIA: Mr Aamir Shoukat HE Bhaswati Mukherjee Chargé d’affaires Ambassador of India to the Netherlands Embassy of Pakistan Mr Darpan Talwar Senior Joint Commissioner (Indus) Mr Faris Qazi Ministry of Water Resources, Technical Adviser Deputy Commissioner for Indus Waters PK-IN 82842 i REPRESENTATIVE FOR THE Mr P.K. Saxena GOVERNMENT OF AZAD JAMMU AND Director KASHMIR: Central Water Commission, Technical Adviser Mr Balraj Joshi Mr Sardar Raheem General Manager Secretary of Irrigation and Agriculture NHPC Ltd., Project representative EXPERT WITNESSES FOR PAKISTAN: EXPERT WITNESSES FOR INDIA: Mr Vaqar Zakaria Dr K.G. Rangaraju Managing Director Hydraulic Engineering Consultant & Former Hagler Bailly Pakistan Head of Civil Engineering, IIT, Roorkee Dr S. Sathyakumar Mr Syed Muhammad Mehr Ali Shah Scientist Principal Engineer Wildlife Institute of India, Dehra Dun NESPAK Mr Jesper Goodley Dannisøe Dr Gregory L. Morris Senior Project Manager GLM Engineering COOP DHI (Water & Environment), Denmark Dr Niels Th. Jepsen Dr Jackie King Senior Scientist River Ecology and Environmental Flow Section for Freshwater Fisheries Ecology, Specialist Technical University of Denmark Southern Waters TECHNICAL EXPERTS FOR PAKISTAN: Mr Manzar Naeem Qureshi Power Economics Expert Hagler Bailly Pakistan Mr Saleem Warsi Flow Measurement Expert Water Resources and Power Development Authority Dr Jens Christian Refsgaard Geological Survey of Denmark and Greenland (GEUS) Mr Hans Beuster Hydrologist Beuster, Clarke and Associates Dr Cate Brown River Ecology and Environmental Flow Specialist Southern Waters PK-IN 82842 ii TABLE OF CONTENTS I. PROCEDURAL HISTORY ........................................................................................................ 1 A. THE INDUS WATERS TREATY AND THE INITIATION OF THIS ARBITRATION ................. 1 B. THE CONSTITUTION OF THE COURT OF ARBITRATION ................................................... 3 C. THE FIRST MEETING OF THE COURT AND THE ADOPTION OF PROCEDURAL RULES.................................................................................................................................. 4 D. CONFIDENTIALITY ............................................................................................................. 9 E. THE COURT’S FIRST SITE VISIT ...................................................................................... 10 F. PAKISTAN’S APPLICATION FOR INTERIM MEASURES ................................................... 14 G. THE IMPLEMENTATION OF THE ORDER ON INTERIM MEASURES ................................ 20 H. THE COURT’S SECOND SITE VISIT .................................................................................. 25 I. THE PARTIES’ WRITTEN SUBMISSIONS ON THE MERITS; REQUESTS FOR DOCUMENTS AND FURTHER INFORMATION ................................................................... 28 J. EXPERT WITNESSES AND TESTIMONY BY VIDEO LINK ................................................. 32 K. THE HEARING ON THE MERITS ....................................................................................... 37 II. BACKGROUND ........................................................................................................................ 41 A. THE GEOGRAPHY ............................................................................................................. 41 B. THE INDUS WATERS TREATY .......................................................................................... 43 C. THE HISTORY OF THE DISPUTES ..................................................................................... 46 D. THE KHEP AND THE NJHEP – TECHNICAL CHARACTERISTICS ................................. 50 E. THE IMPACT OF THE KHEP ON THE NJHEP ................................................................. 54 III. ARGUMENTS OF THE PARTIES ......................................................................................... 55 A. THE DIVERSION OF THE KISHENGANGA/NEELUM RIVER UNDER THE TERMS OF THE TREATY ..................................................................................................................... 55 1. The Parties’ arguments on the governing principles of the Treaty for use of the waters of the Western Rivers .............................................................................. 55 (a) The meaning of the Treaty text ............................................................................ 57 Pakistan’s arguments .............................................................................................. 57 India’s arguments ................................................................................................... 58 (b) The Treaty’s drafting history ............................................................................... 59 Pakistan’s arguments .............................................................................................. 59 India’s arguments ................................................................................................... 62 2. The Parties’ arguments on the Treaty provisions governing hydro-electric projects ........................................................................................................................ 65 (a) “Restricted . to the drainage basin thereof” ................................................... 66 Pakistan’s arguments .............................................................................................. 66 PK-IN 82842 iii India’s arguments ................................................................................................... 68 (b) Run-of-River Plants .............................................................................................. 68 Pakistan’s arguments .............................................................................................. 69 India’s arguments ................................................................................................... 71 (c) “Where a Plant is located on a Tributary of the Jhelum . water released below the Plant may be delivered . into another Tributary” ......... 73 Pakistan’s arguments .............................................................................................. 73 India’s arguments ................................................................................................... 74 (d) “If necessary” ........................................................................................................ 75 Pakistan’s arguments .............................................................................................. 76 India’s arguments ................................................................................................... 78 (e) Interpretation of the phrase “then existing Agricultural Use or hydro- electric use” ............................................................................................................ 80 Pakistan’s arguments .............................................................................................. 80 India’s arguments ................................................................................................... 81 (f) Whether Pakistan has established an “existing . use” ................................... 83 Pakistan’s arguments .............................................................................................. 83 India’s arguments ..................................................................................................
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