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
Some interesting exchanges there. One can see that the target for Pakistan is to force India dismantle the DAM and abandon the project altogether. In fact , if DAM comes up there , it would be ultimate defeat of Pakistan as it expects that it has rights to unhindered flow of full waters of Kishanganga. In fact diversion of waters to BM Nallah is the point raised to obstruct India from constructing the dam as it did not succeed on technical aspects before the Neutral Experts in Baglihar Dam. These technicalities are now being relied upon by Pakistan to open the issue before COA where it felt would have better chance of succeeding , COA being a Collegium.
Existence of the KG Dam would be monumental failure of Pakistan. Those who are aware of IWT provisions know that construction of ROR dams are not at all prohibited so dam would in any case come. This exchange led me to remark that India played good boy. In fact India did not provide technical details other than those already provided to Pakistan and COA in its Memorial. India has to file counter memorial and averred that merits of the case would be argued at that point and all data would be provided then.
While I tend to agree with theo , I think India has got interim measures in its favour.
I would have been happy if India stated that construction of dam is not within COA jurisdiction since diversion is only contested. Second point formulated by Pakistan has already been decided by NE in previous case and COA may not be inclined to open this line of thought.
vic, regarding unused storage capacity permitted under IWT , India would like to use it on Indus or Jhelum Main or Chenab rather than on a tributary. That is why they have not raised this issue. Pakistan could be damned only when Indus is properly dammed .My thought.