The Indus Water Treaty was signed in Murree on 19 September, 1960 by President Ayub Khan and Prime Minister Jawaharlal Nehru to settle the water dispute between the two countries.
In concise terms, Article 2 of the 1960 Treaty provides 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 as mentioned in paragraph 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 Kishanganga Hydro Project (KHEP) pursuant to the terms of Article IX (4) of the said Treaty. The matter was taken for Arbitration.
Pakistan’s grievance:
It is Pakistan’s case that the Kishanganga project is a run-of-river plant which will divert water from the Kishanganga or Neelam River through a tunnel having a capacity of 58.4 cumecs, whose capacity is more than the entire flow of the river at the Gureg site for an average of six months in a year (October to March). India has already made it public to use the entire capacity. This will result in interfering with the entire flow of the river for about six months in a year. It will also adversely affect the flow of the river to Pakistan at Nausery for the operation of the Neelam-Jhelum plant. Additionally, severe environmental consequences and damage to the river’s animal species are also expected. Another dispute is regarding the use of an orifice spillway in the design of the project allowing India the ability to manipulate the flow of water which would be detrimental to the downstream state of Pakistan.
Pakistan sought in its Application that the Court issue an order that India “inform the Court and Pakistan of any actual or imminent developments or steps in relation to the Kishanganga project that may have significant adverse effects upon restoring the status quo ante or that may in any other way seriously jeopardize Pakistan’s rights and interests under the Treaty.”
Issue before ICA:
While raising the dispute, two issues were formulated by the court of arbitration:
- Whether India’s proposed diversion of the river Kishanganga (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.
Pakistan requested for interim measures pending the final Award. The court did not grant full relief to Pakistan but did hold in paragraph 140 of the interim order as follows:
“140. …the Court is satisfied that Pakistan has presented a plausible, provisionally tenable argument under the Treaty in support of its case...”
What ICA has granted:
The Court did appreciate the factual position and made the following observations in paragraph 151 of the interim order dated September 23, 2011:
“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 Kishanganga/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.”
India has, in response, accepted in almost verbatim terms Pakistan’s request that it will provide the requested information. India has also assured both, Pakistan and the Court, that the planned date of diversion is not before 2015 and has given an unequivocal assurance that, regardless of the outcome, it will comply with the Court’s Award.
Obviously the Court’s observations do not give a carte blanche to India but allow it to “proceed at own risk,” conditions proposed by Pakistan, which will of course be without prejudice to the ultimate decision. Additionally, none of the parties are precluded from requesting for further provisional measures even at a later stage. The interim order will require interpretations and clarifications for the future.
In my view the construction of the sub-surface foundations of the dam attracts the same principle which was applied in the case of “Permanent Construction” while granting the restraining order. The past conduct of India in the case of Kashmir, which continues to bitterly sour relations between the two countries and has led to numerous wars, makes me believe that once these foundations are built and India continues to operate the by-pass tunnel it may try to confuse and make a jumbled crochet of the issue to wriggle out of its assurances to ultimately defeat the case of Pakistan. Pakistan will have to therefore keep a keen vigil and report breaches of the interim order to the ICA apart from considering whether to re-approach the ICA for expansion of the sweep of the order. 
Ali Nawaz Chowhan is a former International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court and is presently Co-Chairman of the UNESCO Appeal (Judicial) Board in France.
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