## Facts

- Pakistan and India arbitrated disputes under the Indus Waters Treaty 1960 concerning India’s 330 MW Kishenganga Hydro-Electric Project (KHEP) on the Kishenganga/Neelum River, a tributary of the Jhelum (a Western River allocated to Pakistan subject to limited Indian uses).
- KHEP diverts water through a tunnel to a powerhouse and discharges into another tributary of the Jhelum, reducing downstream flow in the river’s natural channel.
- Pakistan asserted the diversion would harm downstream uses and its 969 MW Neelum-Jhelum Hydro-Electric Project (NJHEP) and would cause environmental injury.
- Pakistan also challenged India’s intended reservoir operations, arguing that drawing the reservoir below dead storage level (DSL) for sediment flushing would impermissibly affect downstream flows.
- The tribunal issued interim measures limiting certain construction at the dam site to preserve the ability to grant effective relief.
- A Partial Award (Feb. 18, 2013) decided the legality of the diversion and the permissibility of drawdown below DSL, and recognized an obligation to maintain a minimum downstream flow while reserving the specific quantity.
- In December 2013, the tribunal issued a decision clarifying parts of the Partial Award and a Final Award setting a specific minimum flow requirement and providing a mechanism for later reconsideration.

## Issues

1. Whether the Indus Waters Treaty permits India to construct and operate KHEP as a run-of-river plant involving inter-tributary diversion from the Kishenganga/Neelum River for hydropower generation.
2. Whether Pakistan’s downstream hydroelectric development qualified as a “then existing” use limiting India’s diversion under the Treaty’s inter-tributary diversion provisions.
3. Whether the Treaty allows India to lower the KHEP reservoir below DSL for sediment control, absent an unforeseen emergency.
4. Whether India must maintain a minimum flow downstream for environmental protection and downstream uses, and if so, what minimum flow is required.

## Decision

- The tribunal held KHEP is a run-of-river plant under the Treaty and India may divert water from the Kishenganga/Neelum River for power generation, subject to Treaty conditions and constraints protecting downstream interests.
- The tribunal determined Pakistan’s NJHEP did not constitute a “then existing” use at the relevant time, so it did not bar or subordinate India’s KHEP diversion under the Treaty’s priority framework.
- The tribunal held that, except in an unforeseen emergency, the Treaty does not permit lowering reservoir levels below DSL in run-of-river projects on Western Rivers for sediment control (including drawdown flushing).
- The tribunal required India to maintain a minimum flow downstream of KHEP and, in the Final Award, ordered India to release 9 cubic meters per second (9 cumecs) into the Kishenganga/Neelum River below the project at all times.
- The tribunal allowed either party to seek reconsideration of the minimum flow through Treaty mechanisms after seven years from the first diversion of water.

## Legal Principles

- Treaty interpretation focused on allocation and regulation of uses of the Indus system’s waters, not territorial sovereignty; the award was without effect on territorial claims.
- The Indus Waters Treaty permits specified Indian uses on Western Rivers, including run-of-river hydropower, but only within the Treaty’s technical and operational limits.
- “Then existing” use constraints are applied by identifying the relevant period when rights crystallize; later-planned or later-developed downstream projects may not qualify as “then existing” uses limiting an earlier project.
- For run-of-river plants on Western Rivers, reservoir operation may not include routine depletion below dead storage level for sediment control; only an unforeseen emergency can justify such depletion.
- Environmental protection can inform implementation of Treaty rights through minimum flow requirements that mitigate downstream harm while preserving the Treaty-permitted project.

## Conclusion

The tribunal permitted India’s Kishenganga diversion as a Treaty-compliant run-of-river hydropower use, but limited operational control by prohibiting drawdown below dead storage except in unforeseen emergency and by mandating a continuous 9 cumecs minimum downstream flow, subject to later reconsideration through Treaty procedures.


In re Indus Waters Kishenganga Arbitration (Pak. v. India), PCA Case No. 2011-01 (Perm. Ct. Arb. 2013)