"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, September 25, 2011

Intl. Arbitral Tribunal asks India to Stop the Kishanganga Project

Pakistani media has reported that the Seven member International Arbitral tribunal -constituted by India and Pakistan to decide on whether construction of the Kishanganga Hydro Project by India amounted to violation of the Indus Water Treaty, 1960- has issued an unanimous order asking India not to continue with the construction of the Kishanganga Project. It may be noted that Pakistan had applied to the Tribunal only in July for an interim injunction attracting severe criticism from Pakistani media for the delay in applying. Considering the belated stage at which interim injunction was sought, Pakistani media was pessimistic about Pakistan's chances in obtaining an interim order in its favour. In fact, in our last post, we had cited news reports in the Pakistani media reporting that the application for injunction was refused by the tribunal. Nevertheless, the Tribunal seems to have asked India to take the said interim measure.

Interim Injunction of this sort is generally issued only if there is a prima facie case, according to well settled principles of law. It remains to be seen how the tribunal will decide the dispute. More on this once the Indian news reports come in.

Added After Posting: The Hindu has a news report that seems to describe the the interim order issued by the seven member Arbitral Tribunal at the Hague in further detail. According to the news report, the Tribunal has injuncted India from constructing any permanent structure on the river bed that may inhibit the river's full flow. It appears from the news report that this order was only a sort of a conservatory measure. Building of a permanent structure might permanently inhibit the river flow even if the award is ruled in Pakistan's favour. Therefore, the interim order is probably aimed at preventing such a situation. It is important to note that the interim order does not prohibit India from undertaking works in the project which do not permanently inhibit the river flow. According to the order, India is free "to continue with all works relating to the Kishenganga Hydro-Electric Project” barring “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”such as "construction of the sub-surface foundations”, erecting temporary cofferdams, operating the by-pass tunnel, temporarily drying out the riverbed of the Kishenganga-Neelum at the Gurez valley, excavating the riverbed, etc. The news report states that the Tribunal intended to give its final award by the end of 2012 or by early 2013.

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