Indus Waters Kishenganga Arbitration (Clar. Req.)

JurisdictionDerecho Internacional
CourtArbitration Tribunal (International)
JudgeBerman,Caflisch,Tomka,Wheater,Schwebel,Simma,Paulsson
Date20 December 2013

Court of Arbitration.1

(Schwebel, Chairman; Berman, Wheater, Caflisch, Paulsson, Simma and Tomka, Members2)

Indus Waters Kishenganga Arbitration

((Islamic Republic of Pakistan
and
Republic of India)

Arbitration Jurisdiction Admissibility Costs Assessment of evidence Scientific evidence

Environment Principles of customary international environmental law Relevance to interpretation and application of treaty on use of river waters Effect of hydro-electric plant on downstream use of river waters

Rivers Legal regulation Indus Waters Treaty, 1960 Hydro-electric plant Whether State constructing plant entitled to divert waters from one tributary of river to another Whether such diversion necessary Limits on right of diversion Duty to preserve minimum flow for benefit of downstream use by other State

Treaties Interpretation Principles of interpretation Object and purpose of treaty Need to interpret provisions of the treaty in mutually reinforcing fashion Relevance of contemporary customary international law to interpretation of 1960 treaty Environmental law Application Duty to apply treaty in good faith

Summary: The facts:The facts are set out at p. 363 above. On 18 February 2013 the Court gave a Partial Award (154 ILR 1), which was the subject of a request by India for clarification or interpretation. With regard to Paragraph B of the Court's Decision in the Partial Award (154 ILR 202), India requested the Court to determine

India maintained that clarification or interpretation was required, because Paragraph B(1) of the Decision in the Partial Award could be erroneously interpreted as prohibiting India from reducing the water level below DSL during drawdown flushing for sediment control. Pakistan argued that India's request had been submitted out of time, because the three month period stipulated in the Indus Waters Treaty had expired since the request was filed on 20 May 2013 and the Partial Award had been delivered on 18 February 2013. Pakistan also argued that the request was inadmissible as it was seeking a new decision, rather than interpretation of the Partial Award. In Pakistan's view, Paragraph B(1) was unambiguous and required neither clarification nor interpretation.

Held (unanimously)3:(1) India's request was timely and admissible.

(a) In accordance with Article 2(2) of the Supplementary Rules of the Court, which interpreted the three month requirement in the Treaty, a request had to be filed within ninety days, or on the next working day after the final day of that period, if the final day fell on a non-workday. Since the final day of the ninety day period fell on Sunday 19 May 2013, the deadline was 20 May 2013 and India had filed its request on that day (para. 20).

(b) The request was admissible. The jurisprudence of the International Court of Justice on requests for the interpretation of a judgment was based upon provisions of the Statute and Rules of the International Court of Justice which laid down substantive preconditions for the exercise of the interpretative power which were not present in the Treaty or the Supplementary Rules. Nevertheless, the mandate of the Court was limited and the Court was not empowered to revise its earlier decision (paras. 213).

(2) Subject to Paragraph B(4) of the Decision in the Partial Award, the prohibition on reduction below DSL of the water in reservoirs of Run-ofRiver plants on the Western Rivers, except in the case of unforeseen emergency, was of general application. As the Court made clear in its Partial Award, it was for India to secure appropriate locations and to draw appropriate designs for its Run-of-River Plants, bearing in mind that the Indus Waters Treaty foreclosed the depletion of Dead Storage for drawdown flushing. That prohibition was based on constraints that were part of the Treaty's essential bargain, as was evident from the Partial Award's analysis of the text and

context of the Treaty. It followed that the prohibition in question was not dependent on the particulars of a given site or project (paras. 2434)

The following is the text of the Decision of the Court of Arbitration: I. INTRODUCTION

1. On 17 May 2010, the Government of Pakistan initiated the present proceedings against the Government of India under the Indus Waters Treaty of 1960 (the Treaty). On 18 February 2013, the Court of Arbitration (the Court) issued its Partial Award. A detailed history of the proceedings through that date is set out in that award. The present decision answers a request for clarification or interpretation of the Partial Award made by India.

II. BACKGROUND TO THE REQUEST

2. Paragraph 27 of Annexure G to the Indus Waters Treaty sets out the scope of the Court of Arbitration's duty to clarify or interpret its Award. Paragraph 27 states that:

3. Invoking Paragraph 27, India, on 20 May 2013, filed a Request for Clarification or Interpretation (the Request) in which it sought clarification or interpretation with respect to paragraph B.1 of the Court's Partial Award. Paragraph B of the Decision section (Part V) in the Court's Partial Award (the Decision) relates to the Second Dispute, in which Pakistan requested the Court to determine

4. Paragraph B of the Decision provides as follows:

5. At the invitation of the Court, Pakistan filed a Submission in Response to India's Request for Interpretation or Clarification on 19 July 2013. India in turn presented a Reply on the Request for Clarification or Interpretation on 2 September 2013. Finally, Pakistan submitted its Rejoinder to India's Reply dated 2 September 2013 in the matter of India's Request for Clarification or Interpretation on 30 September 2013.

6. The Court has considered the submissions of each Party carefully. In accordance with Paragraph 27 of Annexure G and Article 19 of the Court's Supplemental Rules of Procedure (the Supplemental Rules), the Court hereby issues its Decision on India's Request for Clarification or Interpretation.

III. THE PARTIES' ARGUMENTS

7. In its Request, India takes issue with the Court's decision in its Partial Award that [e]xcept 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

8. India asks the Court to clarify that the permissibility of depletion or reduction below Dead Storage Level of the water level in the reservoirs of future Indian Run-of-River plants on the Western Rivers depends on a site-specific analysis of the feasibility of methods of sediment control other than drawdown flushing.3 In response, Pakistan submits that there is no shadow of ambiguity in paragraph B.1 of the Court's Decision and that India's Request is an attempt to have the Court's unambiguous reasoning and determinations in respect of the Second Dispute replaced by quite different reasoning and determinations in favour of India.4

9. Before turning to its analysis, the Court will summarize the Parties' arguments in respect of the admissibility of India's Request as well as of the necessity of clarification or interpretation.

A. The Timeliness and Admissibility of India's Request
Pakistan's Argument

10. As an initial matter, Pakistan argues that India's Request is untimely. In Pakistan's view, 20 May 2013 is not within three months of 18 February 2013, the date of the Partial Award.5

11. Pakistan further submits that the Request is inadmissible because in fact it is not seeking interpretation, but rather a new decision.6 Following the practice of the International Court of Justice (the ICJ), Pakistan argues that the object of a request for interpretation must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.7 Against this standard, Pakistan contends that the Request should be dismissed: the language of the Partial Award being unambiguous, India has no basis for seeking clarification.8

India's Argument

12. India maintains that its Request was filed in a timely manner, as India acted in accordance with the Supplemental Rules, which specify

that any request for interpretation made pursuant to Paragraph 27 of Annexure G must be filed within 90 days of the Award.9 The method for calculating periods of time is also contained in the Supplemental Rules. As the 90-day limit fell...

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