Res-gestae of interim order of ICA in Kishenganga case.


Res-gestae of interim order of ICA in Kishenganga case

Cpurtesy By: Ali Nawaz Chowhan | Published: October 10, 2011
THE matter relates to the Indus Water Treaty, 1960 which was signed at Murree on 19 September, 1960 by FM Ayub Khan and Prime Minister Nehru as a sequel to a document of intention which was signed on 4 May, 1948 by Nehru and Ghulam Muhammad, the Governor General, Pakistan.

Succinctly speaking Article 2 of the 1960 Treaty provides the unrestricted availability of the waters of the eastern rivers to India. The restrictive use is enumerated in the later sub paragraphs of the Article likewise Article 3 provides unrestricted availability of waters of western rivers to Pakistan while creating an obligation for India to let flow of the waters of these rivers without interference by India as mentioned in para 5 of the Annexure C to the Treaty. 


The present cause of action has arisen because the parties failed to resolve the dispute concerning the Kishenganga Hydro Project (KHEP) pursuant to the terms of Article IX (4) of the said Treaty. The matter was taken for Arbitration. 
(

(Dried Indus Bed)
Pakistan has postulated two issues for determination, these are: Whether India's proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah breaches India's legal obligations under the Treaty including India's obligations to let flow all the waters of the Western rivers and not permit any interference with those waters and maintenance of natural channels;
Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river plant below dead storage level in any circumstances except in the case of an unforeseen emergency."
It is Pakistan's case that the Kishenganga project is a run of river plant which will divert water from the Kishenganga/ Neelam river through a tunnel having a capacity of 58.4 cumecs, which capacity is more than the entire flow of the river at the Gureg site for six months in average in a year (October to March). India has already made it public to use the entire capacity, which means that this will result in interfering with the entire flow of the river for about six months in a year. Besides, it will adversely affect the flow of the river to Pakistan at Nausery for operation of the Neelam-Jhellum plant. While it is also said that there will be adverse environmental consequences and damage to the river animal species. 
Another dispute is regarding the use of an orifice spill way in the design of the project allowing India the ability to manipulate the flows of water detrimental to the down stream state of Pakistan. 
Pakistan sought interim relief from the International Court of Arbitration (ICA) at the Hague while the matter remains pending for a final decision. After hearing the parties and appreciating the factual position brought to its notice the ICA in paragraph 150 and 151 of its interim order dated 23.9.2011 enjoined: "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.
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."

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