The Essential Kishanganga Guest Post.

We have earlier covered the arbitration between India and Pakistan on the Kishanganga Project which can be accessed here, here, here and here.

Below is a Guest Post on further development of the dispute from Shashank P. Kumar. Shashank recently completed his LL.M. from Yale Law School, with a special focus on international arbitration and dispute settlement. The post first appeared on Shashank's blog "International Law Curry" here.

Readers may be aware of an international dispute between India and Pakistan over the Kishanganga (var. Kishenganga) project under the Indus Waters Treaty (1960, available here) currently pending at the Permanent Court of Arbitration (PCA). (India is also involved in another arbitration with Bangladesh pending at the PCA [see here].) This is the first time a dispute under the Indus Waters Treaty (persistently surviving many wars for over 50 years now) has been referred to arbitration. From an international legal perspective (which is certainly not the only one, see below), the use of arbitration as a means for dispute settlement between India and Pakistan certainly seems quite promising. Earlier, in a dispute over the Baglihar project between the two countries, the matter was referred to a neutral expert under the Treaty, who, under the aegis of the World Bank and ICSID, issued his expert determination in 2007 (summary of expert report here).

Without getting into the merits of the dispute at this stage, this post notes some recent developments and resources on the Kishanganga arbitration:

1. The Tribunal (headed by Stephen Schwebel, composition here) conducted a week-long site visit in June, 2011. Arriving in Islamabad, they traveled to inspect the Neelum-Jhelum hydroelectric project, crossed the Line of Control and traveled to Srinagar, inspecting the Kishanganga project, before finally reaching Delhi. According to the PCA Press Release, the Tribunal observed “expert briefings and features” during the visit. The PCA Press Release is available here, and is accompanied by this photograph of the members inspecting the Kishanganga project (I quite like the transparency of the PCA on this thus far)

2. A wonderful summary of the dispute and the main arguments by both the countries is provided by Athar Parvaiz (available here). Parvaiz notes:

Pakistan has raised objections to a number of controversial projects undertaken by India in Kashmir in the past, including the Baglihar project on the Chenab River and the Wullar Barrage on the Jhelum River. But the Kishanganga dispute assumes a greater significance because Pakistan is also vying to construct its own project – the Neelum-Jhelum hydro scheme – on the Pakistani side of the Neelum River. The IWT states that the country that completes its project first will secure priority rights to the river.

…

The dispute over the Kishanganga project itself centres on the diversion of water from one tributary of the Indus River to another. Pakistan said this violates the IWT, while India argues the diversion is well within treaty provisions. India maintains that it will only divert the Neelum to join the Jhelum River, which also flows through Pakistan – and that therefore the water will ultimately reach Pakistan anyway.

3. A different, and essentially non-legal, perspective is offered by Maaz Gardezi of the LUMS Water Programme here. Gardezi argues that there is a “trust deficit” between the two riparians and that:

The difference between Kashmir and the water issue is that the latter is an existential issue. Therefore, the consequence of bringing water to a pedestal on India-Pakistan relations can have devastating effects on regional security and prosperity. We need to work closely with our neighbours in order to share this resource, rather than divide it.

4. There have been several reports about a domestic controversy in Pakistan over its legal representation in the dispute. Details on this can be found here (posted Jan. 18, 2011), here (posted Jul. 2010), and here (posted Jul. 7 2011).

5. Ramaswamy Iyer, a noted Indian expert on water, recently published an insightful opinion on the issue (available here). According to Iyer, water has the potential of becoming a new ‘core issue’ of even greater importance than Kashmir. He goes on to identify and analyze the common arguments raised by Pakistan against Indian actions. He concludes noting that:

Right or wrong, certain misperceptions on water persist and are widespread in Pakistan. This has serious implications for India-Pakistan relations and for peace on the subcontinent. Persistent efforts are needed at both official and non-official levels to remove misperceptions and to reassure the people of Pakistan that their anxieties are uncalled for.

(Interestingly, even after the matter was referred to arbitration, Iyer published an article in June 2010 (available here) arguing that despite the initiation of arbitration, India and Pakistan should settle the dispute by an agreement, as opposed to arbitration which is an expensive, time consuming and adversarial process.)

6. Meanwhile, in addition to the Kishanganga dispute, other reports indicate that a recent meeting between officials of India and Pakistan in May 2011 over the Wullar Barrage dispute also failed to resolve the deadlock. (report here.)

The Indo-Pak arbitration over the Kishan Ganga project - an interesting link

We had, in a previous post, highlighted some developments in relation to the dispute between India and Pakistan over the Kishan Ganga project and how the dispute is moving towards arbitration under the Indus Treaty. The post had dealt with the appointment of arbitrators by the parties.

The Hindu carries a an opinion by Ramaswamy R. Iyer on the dispute. The authors summarises the important provisions of the Indus Treaty, provides a gist of the present dispute and discusses, at length, the different points of contention likely to be raised before the tribunal.

India appoints Vice President of ICJ, Swiss Expert as arbitrators in Indus water dispute

We had drawn your attention to a post on Practical Academic regarding India and Pakistan resorting to arbitration regarding the Indus river water dispute. The post mentioned that Pakistan had appointed Prof. Jan Paulsson and Judge Bruno Simma as its arbitrators.

The Hindu reports that India has appointed Judge Peter Tomaka and Prof. Lucius Caflisch as its arbitrators. Judge Tomka, who was born in Slovakia, became a Member of the International Court of Justice on February 6, 2003 and was elected the Vice President in 2009. Prof. Caflisch is a former legal advisor of the Federal Department of Foreign Affairs of Switzerland. He is presently a member of International Law Commission and the Special Rapporteur to the Commission on the topic "Effects of Armed Conflicts on Treaties".

The four party appointed arbitrators are to choose the presiding arbitrator. With the Vice President of ICJ and Judge Simma on the panel, I am eagerly waiting to see who will be picked to preside over the panel.

IBA Rules on Taking of Evidence

The International Bar Association one of the leading organisations of international legal practitioners, bar associations and law societies in the world, recently approved a new version of its Rules on the Taking of Evidence in International Arbitration. These superseded the earlier rules published in 1999. The IBA Rules are often adopted by parties to international commercial arbitrations to govern procedures regarding expert statements, witnesses and other forms of evidence.

The Working Party consisted, among others, of distinguished scholars such Emmanuel Gaillard and Jan Paulsson to name a few.

The new Rules have a wider scope than the 1999 Rules on Taking of Evidence in International Commercial Arbitration, by deletion of the word "commercial"; these rules may now be applied in investment arbitrations as well.

The principle of good faith is firmly entrenched in these rules by an express reference to the same in the Preamble and Article 9, regarding admissibility of evidence.

An obligation is cast upon the tribunal, by virtue of Article 2, to consult parties on taking evidence with a view to agreeing on an efficient, economical and fair process for the same.

Updating itself with technological advancement, the Rules also give details regarding electronic forms of documents in Article 3. Similarly, Article 8 of the new rules provide for video-conference and similar technology.

Greater confidentiality is provided to documents produced, whether by parties, or on request. This can be seen by reference to confidentiality in various provisions of the rules.

Articles 5 and 6 contain important new provisions regarding party-appointed and tribunal-appointed experts, whose independence from the parties and the tribunal is stressed.

An Interesting Link on Arbitration of Indus River Water Dispute

Practical Academic Blog has come up with a comprehensive analysis of the India Pakistan dispute over Indus river water. As the matter is on the path to arbitration, the readers may find the post interesting.