Bharat Rakshak

Jaipur, Sep 18 (PTI) Demanding equitable distribution of river water, a forum here today asked for a review of Indus Waters Treaty between India and Pakistan so that water scarcity in India's North-West region could be addressed. "Our government should initiate a move to review the 50-year-old treaty for equitable distribution and proper management of river waters," Raghu Yadav of "Forum for Power to the People" said at a press conference here. "The treaty should be rectified. India gets less quantity of water whereas Pakistan gets more than it needs. States like Rajasthan, Haryana and Punjab on the other hand are fighting among themselves on the issue of water sharing," Yadav, who hails from Haryana, said. The surplus water in Pakistan should be diverted to India so that "we can ease the water scarcity and water distribution issues in Punjab, Haryana and Rajasthan", Yadav said.

Forum demands review of Indus Waters Treaty
PTI | 06:09 PM,Sep 18,2011


Who are they , never heard of them? anyone?

JAIPUR: Former Haryana MLA Raghu Yadav said on Sunday frequent fight between Punjab and Rajasthan over water could be resolved permanently if the Indus water treaty between India and Pakistan is revised. Sunday was the 50th anniversary of the signing of the treaty.

Addressing the media here, Yadav said that Pakistan and India signed a " fraudulent treaty" over distribution of water between the two countries. Now Pakistan has more than enough water but most parts of India face water crises and states in the country fight over water.

The treaty was signed between the then Pakistani dictator Field Marshal Mohammad Ayub Khan and the then Prime Minister Jawaharlal Nehru in 1960 which stated that both nations are equally desirous of attaining the most complete and satisfactory utilisation of the waters of the Indus system of rivers.

"popularly known as the Jal Neta of Haryana"

Fiery Ahirwal leader and former Janata Dal MLA from Rewari, Raghu Yadav, who is a pioneer of Jal Yudha movement in Haryana

One of the moves this time was set in motion by Ahirwal’s young leader and former Janata Dal MLA, Raghu Yadav. Having floated various outfits, Mr Yadav has finally joined the Congress at the behest of former chief minister and Haryana PCC president Bhajan Lal.

Dont know if this is accurate, but OOska news has a different take
http://www.ooskanews.com/southern-eastern-asia/ica-denies-pakistan%E2%80%99s-requestion-stay-kishanganga-dam-project

Int’l court of arbitration restrains India from any permanent construction on Kishangaga dam

ISLAMABAD, Sept 24 (APP): The International Court of Arbitration has restrained India from any permanent construction or works on or above the Kishanganga/Neelum River bed at the Gurez site.The Court of Arbitration passed a unanimous Order on Pakistan’s Application for Interim Measures on the construction of the Kishanganga Dam being built by India in Occupied Kashmir.

The Court of Arbitration unanimously ruled that:

1) India shall not proceed with the construction of any permanent works on or above the Kishanganga/Neelum River bed at the Gurez site that may inhibit the restoration of the flow of the river to its natural channel;

2) Pakistan and India shall arrange for periodic joint inspections of the Dam site at Gurez in order to monitor the implementation of the Court’s Order;

Pakistan had submitted an application for interim measures to the Court of Arbitration.

In its application, Pakistan had sought:

a) A stop work Order;

b) An Order that any steps India has taken or may take in respect of the KHEP (Kishanganga Hydro Electric Project) are taken at its own risk without prejudice to the possibility that the Court may order that the works may not be continued, be modified or dismantled;

c) That India be Ordered to inform the Court and Pakistan of any imminent and actual developments on the Kishanganga Dam that may adversely affect the restoring of the status quo ante or that may jeopardize Pakistan’s rights and interests under the Treaty;

d) Any further relief the Court considered necessary.

According to official sources, the Office of the Special Assistant to the Prime Minister on Water Resources and Agriculture, the team of legal experts from Pakistan and abroad who prepared a tremendous case, NESPAK and PCIW of the Ministry of Water and Power attended the hearing at the Permanent Court of Arbitration at The Hague.

In January and again in March, Pakistan had required India to provide an undertaking that in so far as it was proceeding with the construction of the Kishanganga Hydro Electric Project it would be doing so at its own risk, in accordance with established principles of international law.

India had refused to provide any such undertaking and thus adherence to this principle was a relief sought by Pakistan in its interim measures application.

During the recent hearing on interim measures India agreed to the ‘proceed at own risk’ principle which has been noted by the Court in its Order.

India, on the construction of the tunnel and power house, may proceed at its own risk without prejudice to the possibility that the Court may in its final decision order that the works may not be continued, be modified or dismantled.

In addition the Court stated that it shall remain actively seized of the matter.

The team of legal experts from Pakistan and abroad that have successfully presented Pakistan’s case continue to work hard on this highly important matter and are optimistic that the Court of Arbitration will deliver a favourable decision on the merits of the case.

APP

India can “continue with all works” related to the Kishenganga hydro-electric project in Jammu and Kashmir except any permanent work on the riverbed that may inhibit restoration of the river’s full flow, the International Court of Arbitration has said.

India “could proceed with the construction of the sub-surface foundations” of the dam, “erect temporary cofferdams and operate the by-pass tunnel it has said to have completed”, “temporarily dry out the riverbed of the Kishenganga-Neelum at the Gurez valley” and “excavate the riverbed.” The court said that, under the current timetable, it intended to give its final verdict “late in 2012 or early in 2013.”

A statement issued by Pakistan’s presidency late last night highlighted the court’s direction that India should not go ahead with any permanent work that could affect the river flow after the final verdict but did not mention the fact that the court had ruled that India could continue all other works.

India can "continue with all works" related to the Kishenganga hydro-electric project in Jammu and Kashmir except any permanent work on the riverbed that may inhibit restoration of the river's full flow, the International Court of Arbitration has said.


In an interim ruling issued on Friday, the court in The Hague, which was approached by Pakistan, said it was necessary to lay down certain interim measures in order to "avoid prejudice to the final solution" of the dispute as provided under the Indus Waters Treaty of 1960.

While proceedings continued at the Court, the ruling said, it "is open to India to continue with all works relating to the Kishenganga Hydro-Electric Project" except "any permanent works on or above the Kishenganga-Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel" after the final verdict.

The ruling, a copy of which has been accessed by PTI, stated that India "could proceed with the construction of the sub-surface foundations" of the dam, "erect temporary cofferdams and operate the by-pass tunnel it has said to have completed", "temporarily dry out the riverbed of the Kishenganga-Neelum at the Gurez valley" and "excavate the riverbed."

The court said that, under the current timetable, it intended to give its final verdict "late in 2012 or early in 2013."

It said: "It follows that it cannot be 'necessary' to order a halt of any construction activity on the (Kishenganga project) that will take place after the issuance of the Court's final Award."


The interim ruling further said India "may utilise the temporary diversion tunnel it is said to have completed at the Gurez site, and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel."

The court gave its interim ruling in response to an appeal filed by Pakistan, which alleged India was diverting the flow of the river and violating the Indus Waters Treaty by going ahead with the project.

A statement issued by Pakistan's presidency late last night highlighted the court's direction that India should not go ahead with any permanent work that could affect the river flow after the final verdict but did not mention the fact that the court had ruled that India could continue all other works.

The interim ruling further said India and Pakistan should "arrange for periodic joint inspections of the dam site at Gurez in order to monitor" that the court's directive regarding permanent works was being implemented.

except any permanent work on the riverbed that may inhibit restoration of the river's full flow, the International Court of Arbitration has said.

A statement issued by Pakistan’s presidency late last night highlighted the court’s direction that India should not go ahead with any permanent work that could affect the river flow after the final verdict but did not mention the fact that the court had ruled that India could continue all other works.

It took nine years of negotiations before the two nations signed the Indus Water Treaty in 1960 with assistance from the World Bank.

Under the IWT, Pakistan was allotted roughly 80 per cent of the river water of the Indus through the western tributaries (Jhelum, Chenab and Indus) while India was allotted the rest of the water via the eastern rivers (Ravi, Beas and Sutlej).
India was also given customary usage of water on the western rivers for agricultural purposes and for run-of-the-river electricity-generation projects.

Most of the disagreements between India and Pakistan concerning water arise over the western rivers of the Indus.

The points of difference over the Kishanganga project are elaborated in much greater detail in the report but yes around 70-odd per cent of Pakistan's population and territory depends on the Indus River (the only other two rivers -- Makran and Karan provide an infinitesimal amount of water in Balochistan) and close to 95 per cent of the total water usage is dedicated to agriculture.

Several other countries do not enjoy water agreements with one another let alone such a specific and 'water tight' treaty.

Technological design in the 1960s might not have foreseen the modern designs of run-of-the-river projects today but there are clauses in the treaty that account for this lack of technological foresight and point towards 'sound and economical' design.

Once expanded and updated, the IWT can provide an even greater degree of depth and relevance to transboundary water agreements as a whole and can even be used to inform future water agreements amongst other nations.

Development in Jammu and Kashmir has definitely been curtailed because of the restrictions placed on water development of the western rivers under the IWT and both Pakistan and India can do their part to alleviate these effects.

State business groups repeatedly tell the government of India that they could collect approximately $13 billion (about Rs 68,500 crore) from electricity exports if they were allowed to harness the full hydroelectric potential of the state (20,000 MW).

It is estimated that Jammu and Kashmir could have increased its area of irrigation by 2.47 lakh hectares more than its current irrigable land (2.3 lakh hectares) if it was allowed to utilise its water resources optimally.

Low water supply in Pakistan is mainly a result of water conveyance losses.

According to Former Pakistani Foreign Minister S M Qureshi, in a very candid interview he gave to a Pakistani news channel in 2010, the "total average canal supplies in Pakistan are 104 million acre feet. However the water available at the farm gate is about 70 MAF. Where does the water go? It's not stolen in India, it's being wasted in Pakistan".

In a brilliant exposition of the India-Pakistan crisis titled The final Settlement -- Restructuring India Pakistan Relations -- the Strategic Foresight Group, a Mumbai [ Images ] based think tank, asserts that the main reason behind Pakistan's demand for Kashmir has very little to do with sympathy for a political cause, and a lot more to do with water.

'In order to prevent a conflict between Punjab [ Images ] and Sindh, and to prevent a possible secession of Sindh and Balochistan, Pakistan needs physical control over the Chenab catchment region in Jammu and Kashmir [ Images ]. It needs sites to build dams, to store, divert and regulate water flows. It also needs additional fertile land. Thus, Jammu and Kashmir is a source of Pakistan's water and food security. It is a real estate dispute for strategic reasons,' it says.

Besides, unlike in April 1948, when India stopped the supply of water to Pakistan from every canal flowing into Pakistan for a month, the Geneva Conventions and the Indus Water Treaty make such an action illegal today. And the water treaty does not allow either country to opt out unilaterally. In fact, it also explicitly prohibits linkage between the water issue and the general position of both parties on the Kashmir issue.

Now they cannot blame evil yindoos for conspiring to dry their rivers through the Kishenganga project at least.

Nation misled on Kishanganga ‘victory’
The ruling, a copy of which is available with The News, stated that India “could proceed with the construction of the sub-surface foundations” of the dam, “erect temporary cofferdams and operate the by-pass tunnel it has said to have completed”, “temporarily dry out the riverbed of the Kishanganga-Neelum at the Gurez valley” and “excavate the riverbed.”

The interim ruling further said India “may utilise the temporary diversion tunnel it is said to have completed at the Gurez site, and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel.”

In a setback to India in its dispute with Pakistan over the Kishenganga project in Jammu and Kashmir, the Court of Arbitration has restrained New Delhi from undertaking any permanent dam works on or above the river bed that might inhibit the flow of the river.

It, however, did not place any restriction on India going ahead with construction of other components of the dam, namely the water conductor system, coffer dams, the temporary by-pass tunnel and excavation below the river-bed level. As per international law, India will do so at its own risk in case the final order provides for changes in the project design.

Pakistan, which had taken the matter to the court, had sought full moratorium on the entire 330 MW Kishenganga project under construction in Baramulla district.

India is yet to file its reply to Pakistan's petition stating why it has objections to the project. New Delhi has to file a counter-petition by November on why it is right and Islamabad's objections do not hold.

“Except for the sub-surface foundations of the dam…India shall not proceed with the construction of any permanent works on or above the Kishenganga/Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel,” the court's interim order said.

It said that for the duration of the proceedings up until the rendering of the Award, it was open to India to continue with all works relating to the project except for the restriction placed by it. “India may utilise the temporary diversion tunnel it is said to have completed at the Gurez site and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel, such tunnel being provisionally determined to constitute a ‘temporary by-pass' with the meaning of Article I (15) (b) as it relates to Article III (2) of the [Indus Waters] Treaty.”

The “interim order” received here on Saturday urged both India and Pakistan to undertake joint inspection of the site to monitor the implementation of the court's direction. Both parties may also submit their agreement or disagreement on the implementation of the order.

The Court observed that it will remain actively seized of the matter and may revise the interim order or issue further orders in the light of the circumstances then obtaining.

In the dispute over the project, Pakistan maintains that it has the rights over the western rivers including Jhelum (of which Kishenganga is a tributary) and diversion of waters by India for its project on Kishenganga will adversely affect its project on Neelum river (as Jhelum is called in Pakistan).

India, however, holds that it is well within its rights under the Indus Waters Treaty to deliver waters into a tributary to the extent that the then existing agriculture and hydroelectric uses by Pakistan are not affected. New Delhi says that so far Pakistan has not given details of any agriculture use and its hydroelectric use is also non-existent.

Before this, Pakistan had taken the matter of India's 450 MW Baglihar hydroelectric dam to a neutral expert. At Islamabad's behest the works on the Tulbul Navigation project have also been stayed at the bilateral level.

Special assistant to prime minister on water and agriculture, Kamal Majidulllah, has misled the nation by speaking half truth that the court of arbitration (CoA) at The Hague has stopped India from constructing any permanent works on or above the Kishanganga/Neelum River bed at the Gurez site that may inhibit the restoration of the flow of the river to its natural channel.
;;;;;;;;;;

When contacted Arshad H Abbasi, an eminent water expert said: “We all ought to wait for official press release of CoA. In case of Baglihar dam former secretary water & power had claimed victory, but two years later when I got access to all the papers it occurred that Pakistan had actually lost the case to India”.

it is not the question of who completes the project first, it is simply who conveyed first to the other side of the proposed project.

I thought it is "when India communicates about proposed project is there an existing Pakistan use".

CONCLUSIONS
1. Pakistan’s Claims Satisfy the Test of Plausibility
140. Pakistan’s claims of Treaty violation challenge the permissibility of the construction and operation of the KHEP on the river Kishenganga/Neelum. At this stage in the proceedings, the Court has not and cannot form any views as to the merits of Pakistan’s claims.212 That said, the Court is satisfied that Pakistan has presented a plausible, provisionally tenable argument under the Treaty in support of its case. Having reviewed Pakistan’s arguments as they are stated in its Memorial, the Court cannot exclude the possibility that India’s planned installations, or elements of those installations, on the kishenganga/Neelum would not be in conformity with the Treaty.213

Footnotes:-

211 The OXFORD ENGLISH DICTIONARY (Concise 11th ed. 2008) defines “necessary” as a synonym of “required to be done, achieved, or present; needed.” (at p. 956). Similarly, the NEW OXFORD AMERICAN DICTIONARY (3d ed., 2010) provides the following synonyms for “necessary”: “required to be done, achieved, or present; needed; essential.”

212 In this context, the Court stresses the provision of Paragraph 28(b) of Annexure G, pursuant to which “the specification of such interim measures shall not be construed as an indication of any view of the Court on the merits of the dispute.”

213 Article III of the Treaty, “Provisions regarding Western Rivers,” provides:
(1) Pakistan shall receive for unrestricted use all those waters of the Western Rivers which India is under obligation to let flow under the provisions of Paragraph (2).

2. Temporarily enjoining India’s construction of many components of the KHEP (including the headrace tunnel and powerhouse facility) is not necessary to avoid prejudice to the Award.

141. In considering which aspects of the KHEP present a real risk of “prejudice to the final solution” of the dispute, the construction schedule of the KHEP as compared to the procedural timetable of the present arbitration is of critical importance.214 Under the current timetable, the Court intends to communicate its final Award to the Parties late in 2012 or early in 2013.215 It follows that it cannot be “necessary” to order a halt of any construction activity on the KHEP that will take place after the issuance of the Court’s final Award.216 On the other hand, specific works put at issue in the dispute that are scheduled to commence soon, and are likely to have reached a certain degree of permanence by the time the Award will be rendered, create by that token a risk of “prejudice to the final solution . . . of the dispute,” thereby rendering an interim measures order “necessary.”

142. In the Court’s view, the suspension of many of the key components of construction activity of the KHEP, such as the boring of tunnels and the construction of the power house, does not appear to be “necessary” to safeguard its ability to render an effective Award. As seen during the Court’s site visit, the construction and completion of these elements of the KHEP occur at some distance from the Kishenganga/Neelum riverbed, and would thus not in and of themselves affect the flow of the river. Thus, even under the hypothesis that the Court finds at the merits stage that Pakistan’s claims, or elements of those claims, are meritorious and the KHEP cannot be completed and put into operation as planned, no violations of Pakistan’s rights would have been caused by the tunneling and power house construction aspects of the KHEP, and no particular remedies seem to be available from the Court in this regard (at least as far as the Court can see at this early phase in the proceedings).

Its interesting observation. India could do any type of activities near the river except disturbing the flow of water. Also if fait accompli is presented by construction at the river bed, COA would have found it difficult to issue even interim measures. This presents unique possibilities in so far as such activities are concerned. Like India can do all other works even without notifying Pakistan if such works are "presently not connected with river". Also India could work in parallel and start construction on the River itself so as to present fait accompli. This would be some what difficult.


143. In the Court’s view, the continuation of such activity is appropriately governed by the “proceed at own risk” principle of international law, as specifically recognized by India during the hearing. The situation would merely be one in which India would have invested considerable sums of money without reaping the benefit of the operation of the KHEP as currently
envisaged. This, however, is precisely the risk that India has declared it is willing to assume, and there seems to be no further risk of “prejudice to the final solution,” in terms of the Court’s Award, in allowing these aspects of the KHEP’s construction works to proceed.

Footnotes:-

(2) India shall be under an obligation to let flow all the waters of the Western Rivers, and shall not permit any interference with these waters, except for the following uses, restricted . . . in the case of each of the rivers, The Indus, The Jhelum and The Chenab, to the drainage basin thereof:
[. . .]
(d) Generation of hydro-electric power, as set out in Annexure D.
Whether or not construction and operation of the KHEP on the Kishenganga River is or would be an “interference” with the flow of the waters of the Indus River system into and through Pakistan or is or would be an authorized exception to such interference is a question – indeed, the question – for the merits of the dispute before the Court. It cannot and will not be addressed in this Order.

214 An updated construction schedule was handed by the Government of India to the Court of Arbitration and the Government of Pakistan on the last day of the hearing on interim measures. It forms part of the case file as Exhibit IN-21.

215 The Court notes, in this regard, that the hearing on the merits in this case is currently scheduled for August 20 to 31, 2012 (Procedural Order No. 1, para. 5.2.2(a)), and that the Court “shall endeavour to render its Award within 6 months of the close of the hearings.” (Supplemental Rules of Procedure, Art. 16).

216 In this connection, the Court refers to India’s assurances that the delivery of the waters from the Kishenganga into the Bonar-Madmati Nallah will not occur before 2015 (E-mail Communication of March 17, 2011 from counsel for India, Application for Provisional Measures dated June 6, 2011, Appendix , and that India will inform the Court and Pakistan of any significant developments concerning the construction schedule of the KHEP (Interim Measures Hearing Transcript, 270:2-6).

3. Temporarily enjoining the operation of the bypass tunnel is not necessary to avoid prejudice to the Award

144. In its pleadings217 and during the hearing on interim measures,218 India maintains that the construction and operation of the KHEP’s by-pass tunnel219 at the Gurez site does not violate the Treaty, as that tunnel is a permitted “temporary by-pass” under Article I(15)(b) of the Treaty, and is therefore not an “interference with the waters” of the Kishenganga/Neelum. Pakistan disagrees with this interpretation.220

145. At this stage in the proceedings, the Court finds that this issue has not been fully briefed. Nonetheless, consistent with the nature of interim measures, the Court, on a provisional basis, cannot exclude that the by-pass tunnel of the KHEP at the Gurez site is a “temporary by-pass” within the meaning of Article I(15)(b), as that provision relates to Article III(2) of the Treaty. The Court also notes that, as described by India, the KHEP by-pass tunnel is, by its very nature,intended to be essentially of temporary use and would thus not by itself be capable of rendering more or less likely the implementation of any remedies that the Court may decide upon in its Award. The same can be said for the temporary cofferdams.

4. Temporarily enjoining India’s construction of certain elements of the dam at the Kishenganga/Neelum riverbed is necessary to avoid prejudice to the Award

146. Conversely, the Court considers that the construction of the permanent dam which India proposes to emplace in and on the Kishenganga/Neelum riverbed falls squarely within the category of works that create a significant risk of “prejudice to the final solution.” Although the dam component of the KHEP presumably accounts for only a fraction of the overall construction costs, Pakistan’s legal arguments are, in essence, conditional upon its completion. It is the dam that would eventually enable India to exercise a certain degree of control over the volume of water that will reach Pakistan; the temporary obstruction of the river and its channeling through a by-pass tunnel does not have any such effect. Moreover, it is the dam that would eventually place India in a position to divert parts or all of the waters of the Kishenganga/Neelum river into the Bonar-Madmati Nallah, thus potentially affecting water supplies in downstream areas of the Neelum valley.

147. Accordingly, while the dam is of course intended to function as only one (albeit integral) part of a complex hydro-electric installation, it is clear that it is a key component of Pakistan’s complaints of breaches of the Treaty. A temporary halt to the construction of the dam would, in the Court’s view, go a long way toward avoiding any situation of potential inconsistency with the Treaty while these proceedings are ongoing. It is the Court’s conclusion that so holding is in accordance with the purport of the Indus Waters Treaty system, which the arbitration mechanism in Article IX and Annexure G is intended to serve.

148. Moreover, even if the Court were ultimately to reject Pakistan’s arguments regarding the alleged illegality of the KHEP in all its elements, as it fully retains the option of doing, the Court at this stage cannot rule out that adjustments to the design of the KHEP dam or related works at the Gurez site may be required. The entirely unconstrained construction of the KHEP pendente lite thus presents a risk of constricting the legal principles to which the Court may have recourse in its Award. Continued construction may also have the effect of foreclosing, delaying the implementation of, or rendering disproportionately large the cost of particular remedies that the Court may choose to order.221 It is not difficult to envisage a situation where the construction of permanent works leading to the erection of a dam on the riverbed runs the risk of a prejudicial fait accompli , as the existence of such works would inevitably need to be taken into account in any consideration of remedies should a breach of the Treaty be determined to have occurred.

149. The Court understands that activities to prepare the construction of the dam in the riverbed at the Gurez site are set to commence in November 2011, some two-odd months away; such activity is thus imminent. Even under the assumption that any construction activity will slow down significantly over the winter months, the work on the dam could progress at least during the late spring, summer, and early fall of 2012. Based upon the Parties’ submissions and the construction schedule, and bearing in mind the Court’s inspection of the dam site during the site visit, the Court is persuaded that, while the present proceedings are underway, works on the dam are likely to advance to a point where the possible restoration of the flow of the Kishenganga/Neelum to its natural channel will be rendered significantly more difficult and costly to the potential prejudice of any prescriptions that may be made by the Court in its Award.

150. In the circumstances, the Court concludes that the construction of this portion of the KHEP is capable of leading to “prejudice to the final solution . . . of the dispute,” and that it is necessary to enjoin India from proceeding with the construction of permanent works on or above the Kishenganga/Neelum riverbed that may inhibit the full flow of that river to its natural channel until the Court renders its Award.

151. The Court considers that while this arbitration is pending, and subject to any agreement between the Parties as to the implementation of the present Order, India may:

(i) erect temporary cofferdams and operate the by-pass tunnel it has said to have completed;

(ii)temporarily dry out the riverbed of the Kishenganga/Neelum at the Gurez valley;

(iii) excavate the riverbed; and

(iv) proceed with the construction of the sub-surface foundations of the dam. However, as specified above, until the Court renders its Award, India may not construct any other permanent works on or above the riverbed that may inhibit the restoration of the full flow of that river to its natural channel.

V . ORDER

152. Having found that it is necessary to lay down certain interim measures in order to “avoid prejudice to the final solution . . . of the dispute” as provided under Paragraph 28 of Annexure G to the Indus Waters Treaty, the Court unanimously rules that:

(1) For the duration of these proceedings up until the rendering of the Award,

(a) It is open to India to continue with all works relating to the Kishenganga Hydro-Electric Project, except for the works specified in (c) below;

(b) India may utilize the temporary diversion tunnel it is said to have completed at the Gurez site, and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel, such tunnel being provisionally determined to constitute a “temporary by-pass” within the meaning of Article I(15)(b) as it relates to Article III(2) of the Treaty;

(c) Except for the sub-surface foundations of the dam stated in paragraph 151(iv) above, India shall not proceed with the construction of any permanent works on or above the Kishenganga/Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel; and

(2) Pakistan and India shall arrange for periodic joint inspections of the dam site at Gurez in order to monitor the implementation of sub-paragraph 1(c) above. The Parties shall also submit, by no later than December 19, 2011, a joint report setting forth the areas of agreement and any points of disagreement that may arise between the Parties concerning the implementation of this Order.

153. The Court shall remain actively seized of this matter, and may revise this Order or issue further orders at any time in light of the circumstances then obtaining.

Pakistan identified “two questions that are at the centre” of the dispute in the following way:

a. Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the
Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance
of natural channels)?

b. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency?2

Pakistan sought, inter alia, the following relief in its Request for Arbitration:


An interim order restraining India from proceeding further with the planned diversion of the river Kishenganga/Neelum until such time as the legality of the diversion is finally determined by a Court of Arbitration.4

148. Moreover, even if the Court were ultimately to reject Pakistan’s arguments regarding the
alleged illegality of the KHEP in all its elements, as it fully retains the option of doing, the
Court at this stage cannot rule out that adjustments to the design of the KHEP dam or related
works at the Gurez site may be required.

Undr the interim measures , India is permitted to use temporary by-pass and dry out river bed and construct sub surfce works for the dam.. Works above the river bed is not permitted which might require modifications by Award of COA. In the whole proceedings it appears that India has tried to play good boy . Merits of the case is due for arguments during Aug 20-41, 2012.

C,

Thanx for the full wording and text. My interpretation still is that the court has exceeded its brief and the GOI should have challenged it.

Moreover, Pakistan argues, India’s understanding appears to contemplate at most a risk that it would be required to open the spillways of the KHEP and allow the Kishenganga to flow unhindered—but not the possibility that it might be required to dismantle the dam.41

Pakistan further reiterated its invitation, expressed during the First Meeting, that India provide an undertaking not to take steps that would have a “significant adverse effect” on its ability to abandon the project and return to the status quo ante.36

Finally, as to the alleged unwillingness of India to acknowledge the possibility that the dam would be ordered to be dismantled, counsel for India expressed skepticism that the physical dismantling of the dam could ever be necessary. Nonetheless, counsel for India made the following statement: “Yes, I agree to a dismantling. I say that there is no occasion in this case. You could modify, you could do it, and the cases do say you can order a dismantling.”58 The Agent for India assured the Court that India has “no hesitation in committing that we will fully and wholly abide by any decision taken by the Court of Arbitration.”59

Finally, with respect to urgency, Pakistan does not agree with the proposition that “all projects involving the building of dams are in a sense physically reversible.”97 First, Pakistan questions India’s acceptance of the possibility that it could in fact be required to dismantle the KHEP.98 Second, Pakistan argues that it “ cannot realistically be denied that it is significantly less likely that the dam would be demolished than that India would refrain from building it in the first
place, and that is what we mean by prejudice to Pakistan’s interests.”99 In Pakistan’s view, India’s insistence that Pakistan’s concerns can be addressed by India regulating the flow rather than dismantling the works ignores a “central purpose” of the Treaty, which is to “limit the extent to which India has a tap in its hands which it can turn on and off as it pleases.”100

According to India, “all projects involving the building of dams are, in a sense, physically reversible, particularly a Run-of-River project like Kishenganga, since mechanisms always exist in every dam which can regulate the flow of water.”112

ISLAMABAD - Deliberately or inadvertently, the man who represented Pakistan at the International Court of Arbitration to explain the Islamic Republic ‘s case on Kishanganga Dam played into India’s hands, and is wrongly projecting Islamabad’s loss as its gain.
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The sources said the ICA in its interim order had not barred India from continuing work on the tunnel, the main demand made by Pakistan, but the Special Assistant was dubbing the court decision as endorsement of Pakistan’s point of view.

"The order is in our favour. It will not materially affect the construction schedule. As it is, work at the site is stopped during October-April period when the area is covered with snow and we are free to carry out permanent activities outside the riverbed."We can build the sub-surface foundations of the dam which Paragraph 1 (c) of the order states," the sources said. In an interim ruling issued on Friday last, The Hague-based Court, which was approached by Pakistan, said it was necessary to lay down certain interim measures in order to "avoid prejudice to the final solution" of the dispute as provided under the Indus Waters Treaty of 1960.

New Delhi, Sep 29: Government today said the interim order of the international court of arbitration on the India-Pakistan dispute over the 330-MW Kishenganga hydro power project in Jammu and Kashmir will not "materially affect" the construction schedule.

"The order clearly states that it is open to India to continue will all works relating to the Kishenganga hydro-electric project except any permanent work on or above the Kishenganga-Neelum riverbed at the Gurez site that may inhibit the restoration of the full flow of that river to its natural channel," highly-placed sources in government told PTI here.

They said India was free to utilise the temporary diversion tunnel "it is said to have completed" at the Gurez site.
"We are also free to construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel," the sources explained quoting the order.

They said the Court has a copy of the construction schedule submitted by India which says the foundation work would only be completed in 2014, much after the final order of the Court which is expected in 2013. "The order is in our favour. It will not materially affect the construction schedule. As it is, work at the site is stopped during October-April period when the area is covered with snow and we are free to carry out permanent activities outside the riverbed.

"We can build the sub-surface foundations of the dam which Paragraph 1 (c) of the order states," the sources said.
In an interim ruling issued on Friday last, The Hague-based Court, which was approached by Pakistan, said it was necessary to lay down certain interim measures in order to "avoid prejudice to the final
solution" of the dispute as provided under the Indus Waters Treaty of 1960