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In Part 2, firstly this article shall analyse the existence of an alternative dispute resolution mechanism in India. Secondly, this article shall study various arbitration cases in space-related disputes and conduct a brief comparative analysis to litigation cases in space-related disputes. Thirdly, this article shall suggest the requisite means and measures to improve the dispute resolution mechanism for space-related disputes.

 

  1. Space Law from the Lens of Indian Standpoint: Does any Alternative Dispute Resolution Mechanism Exist at the Domestic Level?

 

In 2017, the Government of India released the Draft Space Activities Bill, 2017. The Government sought for comments on this draft from the public. This Bill addressed the aspect of private participation in the Indian space sector. It essentially acknowledged the importance and the crucial role that the private sector would play in the near future for the development and enhancement of space-related technology for humanity. However, at the same time, substantial discretion was rested in the hands of the Indian State to essentially control the access to outer space. Regardless of this, the Bill emphasised on the creation of a public-private partnership model to meet the future goals of the space sector, alongside Indian Space Research Organisation (ISRO) inviting the private sector to develop the future satellites.

 

However, the point of conundrum arises is that, when we carefully scrutinise the 2017 Bill, we comprehend that powers have been given to the domestic Indian courts whereas there is no mention of resolution of disputes through arbitration, mediation, and/or negotiation. This lack of mention, accompanied by the Arbitration and Conciliation Act, 1996 and the Indian jurisprudence on arbitration, both being in their nascent stages, proves highly detrimental to the resolution of space-related disputes. This is because, even though the parties in space sector have commercial contracts and agreements that may consist of an arbitration clause, it is pertinent to note that not all disputes may be arbitrable. For example, landlord-tenant disputes were not arbitrable in India until 2020 as they dealt with matters related to public policy and interest. This meant that matters which relate to public policy and interest cannot be arbitrated as such arbitration happens in privacy and confidentiality whereas, these matters are to take place in public forums as that of the civil courts. Due to this, there were multiple conflicting decisions of the High Court and the Supreme Court. However, in December 2020, the Supreme Court finally held that the landlord-tenant disputes are arbitrable as they dealt with subordinate rights in personam that arose from rights in rem.[1] All these conflicts and confusion could have been avoided had there have been an explicit mention about resolution of landlord-tenant disputes through arbitration in the Transfer of Property Act, 1882 with the necessary exemptions of State-specific legislations that provide for specific forums for landlord-tenant disputes redressal.

 

Similarly, in the case of space-related disputes, if there is no mention of arbitration about space-related disputes in the 2017 Bill, it may highly lead to heavy turmoil and confusion despite having arbitration clauses in space-related commercial contracts and agreements, thereby hindering the objective of just, effective, and efficient justice. Although the Supreme Court developed a four-pronged guiding test in Vidya Drolia (2) case[2] –– to ascertain which disputes are non-arbitrable –– that can be applied to decide the arbitrability of space-related disputes, it is pertinent to note that there will be a massive time and resource drainage.

 

This drainage will take place because there will be a substantial time and resources drainage and wastage in deciding whether a space–related dispute is arbitrable. If the Court decides that such outer-space disputes are arbitrable, then there is an unnecessary time and resources lag to commence and conclude arbitration proceedings. This lag can cost both the Parties heavily considering outer-space disputes are enormously expensive. Further, if any Party is unsatisfied with the arbitral award, then they would approach the Court to set it aside. This process of setting aside the arbitral award only adds on to the stress of the previous time and resource lag.

 

Or, if the Court decides that such outer-space disputes are non-arbitrable, then resorting to the traditional, tedious litigation process for adjudication of that space–related dispute and/or getting the previous judgment, that outer–space disputes are non-arbitrable, reviewed by a higher Court/Bench, causes similar time and resources detriment to both the Parties.

 

  1. Study of Arbitration in Space-Related Disputes with a Comparative Analysis of Outer Space Litigation

 

As previously mentioned, the types of space-related disputes may be, but not limited to, late delivery of satellites, problem regarding the launch of a satellite, defective satellites in the orbit, sale and purchase of satellites in the orbit, lease of satellite capacity, right to operate at certain orbital positions, revocation of leased spectrum, and reservation of capacity for governmental use. Thus, taking the aforementioned into consideration, certain arbitration case laws shall be scrutinised for better comprehension.

 

Firstly, the case of Spacecom v. Israel Aerospace Industries was a dispute regarding late delivery of satellites.[3] In this case, Israel Aerospace Industries was supposed to build a satellite for Spacecom and deliver the same by August 2015. However, there were certain delays due to which the satellite was delivered to Spacecom by September 2016. Further, during a prelaunch test, this newly delivered satellite disintegrated. Spacecom initiated arbitration proceedings against Israel Aerospace Industries wherein Spacecom secured an award of USD 10 million in its favour.

 

Secondly, the case of Avanti Communications Group v. Space Exploration Technologies was a dispute regarding launch of satellites.[4] In this case, Avanti contracted with Space Exploration Technologies (hereinafter “SpaceX”) wherein Avanti’s satellite was to be launched aboard a SpaceX Falcon 9 launch vehicle. In pursuance to this contract, SpaceX was mandated to show a certain number of successfully completed launches for their launch vehicle, which they failed to show. Due to this failure, Avanti terminated the contract with SpaceX and requested for a refund as Avanti had already paid the launch cost deposit of USD 7.6 million to SpaceX. SpaceX denied refunding the same amount and Avanti initiated arbitration proceedings against Space X wherein Avanti secured an arbitral award of USD 7.6 million in its favour.

 

Thirdly, the case of Thuraya Satellite Telecommunications v. Boeing Satellite Systems International was a dispute regarding defective satellites in the orbit.[5] Generally, satellite manufacturer’s liability stops from the launch of the satellite. However, in this particular case, a group of insurers brought a claim against Boeing as Boeing’s manufactured satellite lost power in the orbit due to the alleged defective solar panels. Boeing acknowledged that its earlier satellite models contained defects; however, it said that it was not aware about these problems before such satellites were launched and denied concealing such defects from the purchasers of its satellites. The Arbitral Tribunal rejected the insurers’ claim and ordered them to pay Boeing’s full “costs”.

 

Fourthly, the case of ABS v. KT Corpn.[6] was a dispute regarding sale and purchase of satellites in orbit. In this case, ABS contracted with KT Corporation and KTSAT (hereinafter “KT”) for the purchase of a satellite from KT. This satellite was purchased with the requisite US regulatory approvals, but not any Korean regulatory approvals. In 2011, KT delivered the satellite to ABS wherein ABS paid the requisite purchase price of USD 500 million. However, in 2013, Korea’s Ministry of Science, ICT and Future Planning (hereinafter “MSIP”) declared the contract –– between KT and ABS –– as null and void as KT did not comply with Korean regulatory approval. Further, KT was ordered for returning the satellite to its original operating condition. Due to this, KT sent a letter to ABS wherein KT asserted its ownership of the satellite. However, ABS denied the same on two counts: (i) MSIP did not have the authority to nullify the contract between KT and ABS; and (ii) Korean export approval was not necessary because the satellite was not a Korean export but a US export. ABS initiated arbitration proceedings against KT and secured an arbitral award in its favour wherein the title was declared to have been transferred to ABS even before the MSIP nullified the contract. This was because:

 

… ABS and KT fulfilled every prerequisite defined in Article 10.1 of the purchase contract as a condition precedent to the passage of title to the satellite: obtaining export approval by KT and Lockheed Martin for a US export under the regime of the US International Traffic in Arms Regulations (ITAR), delivery of the satellite, payment of the purchase price and issuing of bills of sale.[7]

 

Further, the Arbitral Tribunal also held that the Korean Government did not have any authority to nullify the contract as it held that MSIP was not the competent agency to issue an order of nullification, but the Korean Ministry of Trade, Industry and Energy was competent that remained silent throughout the matter.

 

Fifthly, the case of Avanti Communications v. Govt. of Indonesia was a dispute regarding leasing of satellite capacity.[8] In this case, Indonesia’s satellite malfunctioned in 2015 due to which Indonesia could have lost its orbital slot. The filling of this orbital slot with a new satellite would have taken more than three years but this was problematic to Indonesia because, according to the “use it or lose it” policy, a State may lose its orbital slot if the State leaves the orbital slot vacant for more than three years.[9] To avoid the same conundrum, Indonesia leased capacity on another satellite that could be brought and maintained in Indonesia’s orbital slot until a new Indonesian satellite could be placed. This replacement satellite was owned by Avanti. The lease capacity agreement was worth USD 30 million. Indonesia paid only USD 12 million, leaving a remaining balance of USD 16.8 million as it claimed that the satellite was not fulfilling the requisite purpose. Failure to pay even after a year, due to this, Avanti initiated arbitration proceedings against Indonesia in 2017 and secured an arbitral award in its favour in 2018 wherein Indonesia was ordered to pay Avanti a total sum of USD 20.075 million.

 

Sixthly, the case of Eutelsat SA v. United Mexican States[10] is a dispute regarding reservation of capacity for governmental use. In this case, Eutelsat, a satellite operator, acquired a satellite in 2014. However, according to the regulatory rules of United Mexican States i.e. Mexico, satellite operators are mandated to reserve ninety per cent of their satellite’s overall capacity for governmental use, which the operators could otherwise commercialise. The problem arose at the point wherein Eutelsat claims that it was required to reserve a larger capacity for Mexican Government than its competitors which, in turn, violated the principle of fair and equitable standard under the Mexico-France Bilateral Investment Treaty (BIT). The case is still pending.

 

Seventhly and in finality, there are two noteworthy arbitral disputes that are the Devas arbitrations[11] and the Eutelsat arbitrations[12] that relate to revocation of lease spectrum and the right to operate at orbital positions respectively.

 

Thus, considering the aforementioned cases, it is lucidly evident that a plethora of international arbitration cases have taken place that are related to a conventional manufacturing, purchase, title, or contract-related dispute.

 

However, the query is that whether litigation takes places for space-related disputes. The answer is affirmative as already evident from the 1991 case of Martin Marietta Corpn. v. Intelsat.[13] In this case, Martin Corporation (hereinafter “Martin”) and Intelsat entered into an agreement to launch two satellites. Martin agreed to launch the satellites in return for a consideration worth USD 112 million from Intelsat. Soon after the lift off of the first launch, the payload’s separation system failed to eject the satellite and the satellite’s booster. Although Intelsat’s engineers eventually separated the payload from the rocket, this delay caused in the separation of the payload from the rocket left the satellite in a useless orbit. It was estimated that the cost to rescue and place the satellite in a proper orbit was USD 90 million due to which Martin filed a case in Maryland District Court. In response to this, Intelsat filed a counter case claiming a breach of contract. Further, Intelsat also brought the claims of negligent misrepresentation, negligence and gross negligence to recover the damages for loss of profits, loss of use of satellite, and rescue costs. The District Court’s case lasted for a significant period of time, but it did not end there as the case went to appeal to the Fourth Circuit that disagreed on the District Court’s decision on multiple counts.

 

Thus, the point of consideration, rather than a conundrum, arises is that this significant time and resource lapse, alongside changing decisions of the courts, in Martin case[14], could have been avoided had the matter been referred to arbitration proceedings as arbitration would have not only offered a higher chance at time and resource savings, but also mutual development and agreement for the claim amounts, thereby enabling the development of sustainable and long-lasting relationship between the parties. Similar problems have arisen in the space-related litigation disputes of Appalachian Insurance Co. v. McDonnell Douglas Corpn.[15] and Lexington Insurance v. McDonnell Douglas.[16]

 

Thus, it is lucidly evident that litigation proceedings in already complex and highly technical space-related disputes add on to the existing layers of complexity. Further, it also leads to massive cost and resource drainage and wastage which, in turn, further detriments the space sector from gaining traction in terms of growth, development, and innovation. Therefore, arbitration, mediation and/or negotiation offer the best chance at saving time and resources alongside building long-lasting and sustainable commercial relationships which, in turn, enable the space sector to bloom while protecting its manufacturers, sellers, and service providers.

 

In the following, the author shall conclude with certain recommendations to improve the scenario of dispute resolution in space-–related disputes.

 

  1. Conclusion: What is Actually Written in the Stars for the Future of Dispute Resolution Mechanism in Space-Related Disputes

 

We comprehend that the disputes in the space sector are highly technical and complex in nature due to which the need for arbitration substantially rises and for litigation reduces. However, it is pertinent to note that, in the space sector, the disputes are usually resolved through the process of mediation.[17] The parties resort to arbitration only if the matter escalates.[18] Taking this into account, it can be inferred that mediation is quintessential to resolve space-related disputes. However, considering the fact that the conventions and accords regarding space law are obsolete and ineffective, an imperative need to update and upgrade the same becomes the need of the hour because failure to do so will obstruct in the delivery of justice to the parties. The reason behind the same is that there is a burning need to develop a dispute resolution mechanism that is akin to space-related disputes only, rather than resorting to a general and standard dispute resolution mechanism as previously argued.

 

Thus, firstly, a new, effective, and efficient dispute resolution mechanism of arbitration, mediation, and negotiation (hereinafter “AMN”) can be developed through a top-to-down approach (hereinafter “TDA”). This means that that the law and its related provisions shall flow from the lawmakers to the parties wherein the updation and upgradation of the related conventions, treaties, and accords, alongside the development of specific rules and procedures shall be the responsibility of the lawmakers. It shall involve inclusion of specific and comprehensive provisions related to the dispute resolution mechanism of AMN in the newly updated and upgraded conventions, treaties, accords, and so on. Further, the relevant and requisite suggestions/amendments may be sought from various actors of the space sector for a comprehensive and inclusive development of the dispute resolution mechanism. This approach takes precedence over a down-to-top approach (hereinafter “DTA”) wherein the law and its related provisions flow between the parties while ensuring adherence to the general norms of international law. In other words, in DTA, the parties shall set their own rights, duties, and obligations, while ensuring that such setting does not violate any basic provisions of international law such as justice, fairness, equality, and good faith. DTA is not a preferrable mode because in this approach, there is a lack of uniformity and standardisation in the rights, duties, and obligations of the parties. This lack of uniformity and standardisation may inherently lead to the creation of stark differential treatment for each AMN proceedings which, in turn, may be perceived as discriminatory. Thus, to avoid the same, TDA is preferrable for the creation of an AMN dispute resolution mechanism.

 

Adding on to the aforementioned updation and upgradation of the treaties and so on, it is of quintessence importance for us to comprehend that the PCA Outer Space Arbitration Rules already exist for the purpose of arbitration in space-related disputes. Considering the dynamic and rapid changes in the space sector, wherein the probability of space-related disputes exponentially rise in times of Covid-19 — owing to halt and delay in various businesses and their ancillary industries — the need for utilising and applying these Rules becomes inevitable. This is to ensure faster, effective, and efficient redressal of space-related disputes owing to these Rules expertise and specific draft for space-related disputes. However, to achieve the same, there is a need for creating an awareness regarding these Rules within the space sector. Further, these Rules scope can also be expanded by including provisions and measures for mediation and/or negotiation. The benefit of the same would essentially be of standardisation and uniformity in the Rules for dispute resolution mechanisms as earlier argued.

 

Secondly, it is also imperative for us to comprehend that if the parties choose to go for litigation, then they may choose to go for the International Court of Justice (hereinafter “ICJ”) ad hoc litigation rather than a traditional ICJ litigation. The reason behind the same is that, in the ICJ Statute, there is a provision that enables the creation of ad hoc litigation chambers of the ICJ.[19] According to Article 26 of the ICJ Statute, we comprehend that it enables the creation of two types of chambers: a chamber that deals with a particular case;[20] or one or more chambers that deal with a particular “category” of cases.[21] Thus, we need to comprehend that this type of ad hoc ICJ litigation is far more beneficial than a traditional ICJ litigation because: (i) the ad hoc chambers will be specially equipped with experience and expertise to deal with space-sector related disputes as Article 26(1) enables the creation of chambers for a particular category of cases. This benefit of experience and expertise shall enable ICJ to deliver judgments of higher effectiveness and efficiency which, in turn, will enable the parties to receive appropriate and speedy justice. (ii) Ad hoc chambers act in a manner similar to that of Arbitral Tribunals because these chambers are created especially for specific disputes which is the same case in Arbitral Tribunals. This essentially offers similar benefits of Arbitral Tribunal but in the form of a decision rendered by an ICJ chamber. Further, it is also quintessential to note that these ad hoc chambers decisions are considered as a judgment rendered by the ICJ[22] which, in turn, makes it binding on the parties as per Article 59[23] and thereby increases the authenticity of these decisions.

 

However, the advantages of an ad hoc ICJ chamber over an Arbitral Tribunal must be discussed. These advantages are as follows: (i) From a political standpoint, it has already been observed that ICJ judgments have a higher visibility than an Arbitral Tribunal which, in turn, creates an increased probability of compliance with these judgments.[24] Further, these ICJ judgments are termed as “more prestigious” when compared to arbitral awards.[25] This, in turn, enables a party to bring the other party under the accountability and responsibility factor which may be due to the other party’s inability to fully or partially comply with the judgment. (ii) An ad hoc ICJ litigation chamber is comparatively lesser expensive than an Arbitral Tribunal because, according to Article 33, the “expenses” of the ICJ proceedings shall be borne by ICJ. The parties would be required to only bear their “own costs” for the ICJ proceedings. This encourages small actors of space-related disputes to undertake the same proceedings. Thus, it is lucidly evident that the parties can also resort to ad hoc ICJ litigation, provided the mutual settlement talks and/or mediation and/or arbitration has failed between them.

 

Therefore, considering the fact that there are ample amounts of opportunity for the dispute resolution mechanism for space-related disputes to grow, develop, and evolve, an inevitable need for constant updation and upgradation of the laws and rules arises alongside the creation of an awareness regarding the same.


† Iram Majid, Director of Indian Institute of Arbitration and Mediation (ILAM) and Executive Director of Asia Pacific Centre for Arbitration and Mediation.

[1] Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 : 2020 SCC OnLine SC 1018.

[2] Ibid.

[3] Jan Frohloff, Arbitration in Space Disputes, 35 Arbitration Int’l 309, 311 (2019).

[4] Id. at 311-312.

[5] Id. at 313.

[6] ICC Case 19958/ AGF/RD/MK (ABS).

[7] Frohloff, supra note 2, at 315.

[8] Id. at 316.

[9] Id. at 317.

[10] ICSID Case No. ARB(AF)/17/2.

[11] See also CC/Devas (Mauritius) Ltd. v. Republic of India, PCA Case No 2013-09 and Devas Multimedia (P) Ltd. v. Antrix Corpn. Ltd., ICC Case 18051/CYK.

[12] See also Eutelsat v. Media Broadcast, Deutsche Telekom; Eutelsat v. SES (Eutelsat) <https://www.international-arbitration-attorney.com/icc-space-arbitration-eutelsat-communications-v-ses/>.

[13] 763 F Supp 1327 (D Md 1991).

[14] Ibid.

[15] 262 Cal Rptr 716, 718 (Cal Ct App 1989).

[16] 49 USC app § 2615 (1988).

[17] Frohloff, supra note 2, at 328.

[18] Ibid.

[19] 1945 3 Bevans 1179, Art. 26 (hereinafter “ICJ Statute”).

[20] Id. at Art. 26(2).

[21] Id. at Art. 26(1).

[22] Id. at Art. 27.

[23] Id. at Art. 59.

[24] Andreas Zimmermann, Ad Hoc Chambers of the International Court of Justice, 8(1) Dickinson Journal of International Law 9, 1-32 (1989).

[25] Ibid.

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India has seen and engaged in a plethora of domestic and international water disputes since and even before its independence. This is evident from India and Pakistan’s long-standing history of water disputes. In view of this the nations have commenced with their annual meeting of the Permanent Indus Commission, formed under the Indus Waters Treaty, 1960, as of 23-3-2021.[1] Although this meeting acts as a facilitator for resolution of water disputes and gives rise to an agency for mediation in India, it is far from being adequate since the domestic legislative framework and mechanism to deal with inter-State water disputes remain undeveloped and outdated to accommodate inter-State mediation.

In view of the above, this article shall firstly, describe water disputes and the reasons behind the same. Secondly, the article shall scrutinise the reasons behind the undeveloped and outdated state of the domestic legislative framework that fails to adequately accommodate inter-State mediation to resolve inter-State water disputes. Lastly, the article shall suggest how inter-State mediation can be incorporated to resolve the long-pending water disputes in India.

Introduction: Bird’s eye view of water disputes

Water resources are becoming one of the major moot points among several areas, communities, and countries with each passing day. The reasons behind this are physical and economic water scarcity, unsustainable management and development practices related to water use, “global food trade,” and the damage caused to the ecology from human behaviour –– mining activities, industrial activities, and so on.[2] Thus, we can infer that water disputes may take place in a situation where water scarcity may or may not exist. It is the ineffectiveness and inefficiency of dispute resolution mechanisms that lead to water disputes. In other words, water disputes depend upon the ability of the dispute resolution mechanisms to resolve the water conflicts in a particular area or community. If the dispute resolution mechanism is weak, then it is most likely that water disputes are bound to occur and perpetuate. These “disputes” essentially translate to a brawl over the need to access, control, manage and/or use these water resources.[3] Further, they also often involve conflicts due to the inherent right to use these resources; the depletion of these resources; and the underlying threat to livelihood caused as an ancillary consequence of these disputes (e.g.: loss of livelihood of indigenous people near a river due to the construction of a dam).[4]

Analysis: How the Central Government failed to create an adequate legislative framework to accommodate inter-State mediation for inter-State water disputes

Article 262 of the Indian Constitution confers power on the Parliament to enact laws related to the adjudication of disputes related to the usage, distribution, control of water of or in, any inter-State river or river valley. Thus, Parliament enacted two laws: River Boards Act, 1956 and the Inter-State River Water Disputes Act, 1956. Under the River Boards Act, the Central Government has the power to create “Boards” in consultation with the State Governments for the purpose of advising the State Governments on “development schemes” related to inter-State basins.[5] Further, the purpose of this Board is to reduce the propensity of inter-State water disputes. The anomalous nature of the intent of the Government is evident from the fact that uptil date, no such “Board” has been created by the Central Government.[6] Their creation becomes imperative as these Boards enable to create a discourse for inter-State meditation by promoting mutual dialogue. However, the absence of these Boards highlights inactive and lethargic efforts of the Government at the prima facie level. Due to the lack of adequate efforts, the necessary mechanism/framework for existence of inter-State mediation is hindered.

The second point which highlights the lackadaisical attitude of the Government is that although the River Boards Act makes a provision for arbitration,[7] this provision has been proved counterproductive and futile because the parties can refer to arbitration only in situations wherein the advice or measure was rendered by the “Board”.[8] As no Boards were formed in India, the arbitration mechanism is rendered non-existent which, in turn, further hinders the establishment of an inter-State mediation mechanism.

Under the Inter-State River Water Disputes Act, the State or States can approach the Central Government for resolution of water disputes, who in turn, may refer the dispute to a “Water Disputes Tribunal.”[9] The decision of this tribunal shall be final and binding,[10] and is beyond the purview of being reopened and reviewed.[11] However, if the State Government is of the opinion that anything contained in the Tribunal’s decision requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the State may, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration.[12]

The third point which clearly depicts the conundrum between the power conferred  and the execution is that although inordinate delays in the constitution of the Tribunal and delivery of its decisions was resolved through the Inter-State River Water Disputes (Amendment) Act, 2002, certain issues still continue to exist –– the States can approach the Supreme Court under Article 136 of the Indian Constitution that grants discretionary power to the court to appeal from the decision of “any” tribunal; or private persons may approach the Supreme Court under Article 32 and link the water dispute issues and/or tribunal’s decision with violation of fundamental rights. Further, it is also imperative to note that the composition of the Tribunal is not diverse as only individuals from the judiciary are appointed.[13] This may severely detriment the tribunals’ ability to deliver a truly holistic and final decision.

Further, before the aforementioned reference is made to a tribunal by the Central Government, the Central Government may attempt to facilitate negotiations. However, if it is “of the opinion” that such dispute cannot be settled through negotiation, it may refer the dispute to a tribunal.[14] This leads to the fourth point which highlights this conundrum is that when we analyse the history of water disputes, the Centre has directly referred the disputes to the Tribunal with putting little to no efforts for facilitating negotiations and attempting to amicably settle these disputes. This can be understood from an in-depth scrutiny of the history as follows.

Firstly, in the Cauvery River dispute i.e. State of Karnataka v. State of T.N.,[15] it is imperative to comprehend that Cauvery River is essentially an inter-State basin that has its origins in Karnataka and flows through Tamil Nadu and Puducherry. In this dispute, an agreement was signed in 1924 from which Tamil Nadu and Puducherry would get seventy-five per cent of the surplus water from Cauvery River, while Karnataka would get twenty-three per cent of the surplus water. The remaining would go to Kerala. Further, no restrictions were placed on how much land could be irrigated. Thus, the States concerned are Kerala, Karnataka, Tamil Nadu and Puducherry (Union Territory). However, in 1970, the Cauvery Fact-Finding Committee found that the irrigated lands had grown in Tamil Nadu resulting in an increased need for water supply while Karnataka’s lands showed little to no growth. Tamil Nadu’s proposal for increased need of water supply was rejected by Karnataka due to which Tamil Nadu directly requested for setting up of a tribunal. After a repeated formal request in 1986, the Tribunal was finally formed in 1990, after almost twenty years. In the Tribunal’s final decision in 2007 and the Supreme Court’s multiple advices, Karnataka was ordered to release water from Cauvery River to Tamil Nadu. However, Karnataka did not comply with the same as it contended that they did not have sufficient water to cater to its own needs, let alone supply to Tamil Nadu. This water dispute still remains sub judice in the Supreme Court as it reserved its judgment in 2017. In this dispute, it is pertinent for us to comprehend that little to no efforts are visible regarding Centre’s intervention for facilitating negotiations between the States concerned due to which the matter still remains under judicial consideration.

Secondly, in the Sutlej Yamuna Link (SYL) Canal issue i.e. State of Punjab v. Surjan Singh,[16] it is imperative to comprehend that the SYL Canal is a project proposed to connect the Sutlej River in Punjab with Yamuna Canal in Haryana. In 1966, after the Indus Waters Treaty 1960, India received the unrestricted right to three rivers: Ravi, Beas, and Sutlej. They were shared among Punjab, Delhi and Jammu & Kashmir. In 1966, Haryana was created from Punjab’s territory. When such bifurcation occurred, water rights were also one of the dispute points as Haryana, being a successor State, had the water rights to Punjab’s Sutlej River. In 1976, the then Prime Minister Indira Gandhi divided the water between Punjab, Haryana and Rajasthan. But this division was not complied by the Punjab Government. This non-compliance led to the formation of a tribunal in 1986, which passed an order in 1987 dividing Sutlej River’s water between Punjab and Haryana. However, the Punjab Government challenged this order and contended that Sutlej River’s capacity has been overestimated. In the midst of this, SYL Canal’s foundation stones were laid in 1980s but its construction had to be halted for multiple reasons, such as militancy in Punjab among other reasons. In 2002, the Supreme Court ordered the Punjab Government to complete the construction of the SYL Canal within 12 months. In the midst of this, a subsidiary dispute arose –– Ravi-Beas water dispute –– in which a tribunal was set up in 1985 to specify the quantum of water to be shared between Punjab, Haryana, and Rajasthan. In 2004, Punjab passed the Punjab Termination of Agreement Act, 2004 which scrapped all the water sharing agreements signed with other States and required the Punjab Government to restore the land to the farmers free of cost. However, this was declared as unconstitutional by the Supreme Court. It also directed both the Governments to maintain the status quo i.e. complete the construction of the SYL Canal. It is important to note that only after years of constant tussle and endless struggle, the Centre agreed to mediate between Punjab and Haryana on 18-8-2020.[17] This delayed cognizance and effort has proven to be far more detrimental than beneficial as years of litigation not only led to a resource drainage but also a disenfranchisement of the other involved stakeholders –– such as meeting of farmers’ irrigation needs and creation of hydel projects –– from the probable benefits of SYL Canal.

Thirdly, apart from the aforementioned disputes, other major water disputes exist –– such as Godavari River water dispute (between Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Odisha), Narmada River water dispute (between Rajasthan, Madhya Pradesh, Gujarat and Maharashtra), and the Krishna River water dispute (between Karnataka, Telangana, Andhra Pradesh and Maharashtra) –– wherein the Centre has shown little to no efforts or cognizance for facilitating negotiation. This has hindered the progress and growth of inter-State mediation space in India due to which the legislative framework concerned –– River Boards Act and Inter-State River Water Disputes Act –– remain undeveloped.

 

 

Conclusion: The last ray of hope –– Inter-State mediation

Considering the fact that multiple inter-State water disputes have resulted in heavy loss of resources, benefits, and opportunities, the need to consensually reach a common, harmonious ground becomes inevitable to avoid any future damages or repercussions. Mediation offers the best chance at this reconciliation because it would allow both the States to take charge of the proceedings while the mediator would only facilitate dialogue between the States. However, the fifth and final point of conundrum arises is that there is a lack of adequate inter-State mediation resolution mechanism for inter-State water disputes.

To resolve the same conundrum, firstly, there is a need for an institutional space for inter-State mediation. Germany has the LAWA (Working Group of the Federal States), and Australia has the COAG (Council of Australian Governments) that acts as an institutional space for deliberation and dialogue between different States.[18] Similarly, in India, the Inter-State Council can be established under Article 263 of the Indian Constitution. This Inter-State Council can become a permanent inter-State mediation forum by facilitating establishment of smooth procedures, appointment of mediators, and so on. The utilisation of this existing framework will lead to cost and time saving for the States and the Centre.

Secondly, the Inter-State River Water Disputes (Amendment) Bill, 2019 calls for the set-up of a “Dispute Resolution Committee” that shall first attempt to settle the inter-State disputes amicably. It shall comprise of a chairman and experts with fifteen years of experience from the relevant sector. If the dispute fails to be settled amicably, only then it shall be referred to the Inter-State Disputes Tribunal. Although this is a positive step towards inter-State mediation and amicable settlement of disputes, the 2019 Bill has only been passed by the Lok Sabha and is pending before the Rajya Sabha. Considering the urgent need for such dispute resolution mechanism, a speedy passing of the Bill is quintessential to aid in the recovery of the hard-hit sector concerning the resolution of water disputes.

Thirdly, either the Inter-State Council or the Dispute Resolution Committee can adopt a method similar to that of arb-med to avoid the hassle of litigation. In arb-med, a trained and neutral third party first hears the parties in an arbitration proceeding and writes a suitable award.[19] However, the third party keeps this award sealed from the parties and only then moves ahead to mediate between them.[20] The reason why arb-med should be preferred over med-arb is that in case of med-arb, the mediator knows the sensitive and personal information of the parties by virtue of the mediation proceedings commencing first.[21] This information may not be disclosed in the arbitration proceedings by the parties because of which the mediator may be indirectly influenced from this information while writing the arbitral award.[22] Therefore, arb-med seems like a lucrative option to resolve inter-State water disputes wherein the third party may hear the States concerned, write the suitable award, move ahead with mediating between them, and in case of failure, deliver the earlier written award.

Lastly, in international law, there are two primary conventions that are imperative to note: Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter “Water Convention”) and the Convention on the Law of the Non-Navigational Uses of International Watercourses (hereinafter “UN Watercourses Convention”). On one hand, the purpose behind the Water Convention is to ensure that the party States make the requisite attempts and measures for the protection and management of transboundary surface water and groundwater. On the other hand, the UN Watercourses Convention is an enabler of the Water Convention because the UN Watercourses Convention essentially covers the uses of international watercourses and of their waters for purposes other than navigation. It also covers the measures of protection, preservation and management related to the uses of these watercourses and their waters. Both the aforementioned conventions cover arbitration and negotiation in a detailed manner as opposed to the national legislative framework of India. The conundrum arises herein is that neither India nor major States are a party to these conventions which makes it more perplexing to enhance the domestic scenario of resolution of water disputes in India. Had India been a signatory and ratifying party to the same conventions, its legislative framework would not have been as outdated and inadequate as it currently is because it would have otherwise complied with the international standards of water dispute resolution mechanisms and/or practices. Thus, India must strive to become a signatory and ratifying party to the same conventions while gathering international support for the same as it will enable India and the international community as a whole to better resolve water disputes by conforming to the international standards. Further, international support will also lead to the growth and development of these international standards for water-related matters which, in turn, would enable efficient and effective resolution of water-related disputes.

The final point to be remembered is that mediation and amicable settlement of disputes –– without feeling the need to resort to inter-State water litigation –– is the need of the hour for a harmonious and progressive development of the ecology and the society.

 

† Iram Majid, Director of Indian Institute of Arbitration and Mediation (ILAM) and Executive Director of Asia Pacific Centre for Arbitration and Mediation.

[1]India, Pakistan Begin Indus Water Meet in New Delhi, ANI (23-3-2021) HERE.

[2] Simon J., A. Mason and Dorothea Blank, Mediating Water Use Conflicts in Peace Processes, UN Peacemaker HERE.

[3]Id. at 7.

[4]Id. at 7.

[5] The River Boards Act, 1956, Chs. II and III.

[6] M. Sridhar Acharyulu, The Great Indian River Question: Three Bills Threatening Federalism, DownToEarth (19-8-2020) <https://www.downtoearth.org.in/news/water/the-great-indian-river-question-three-bills-threatening-federalism-72913>.

[7] The River Boards Act, 1956, S. 22.

[8]Ibid.

[9] The Inter-State River Water Disputes Act, 1956, S. 4.

[10]Id. at S. 6.

[11]Id. at S. 4.

[12]Id. at S. 5(3).

[13]Id. at S. 4(3).

[14]Id. at S. 4.

[15](2018) 4 SCC 1.

[16]1989 SCC OnLine P&H 750 : (1990) 97 PLR 278.

[17] Mallika Goel and Shreyashi Roy, The Sutlej-Yamuna Link: State Skirmish or National Security Issue? The Quint (23-8-2020) HERE.

[18] Srinivas Chokkakula, Interstate River Water Governance: Shifting the Focus from Conflict Resolution to Enabling Cooperation, CPR India, HERE.

[19]Katie Shonk, What is Med-Arb? The Pros and Cons of Med-Arb, A Little-Known Alternative Dispute Resolution Process, Program on Negotiation, Harvard Law School Daily Blog (15-3-2021) HERE.

[20]Ibid.

[21]Ibid.

[22]Ibid.