Pak yet to win,India positive but reluctant to assert

With the final verdict likely to be announced by the end of 2012 or early 2013,the stay does not derail Indian plans.

“Principles of international law are applied while adjudicating the federal water disputes in India or the US. But,so far,no Inter-state Water Disputes Tribunal in India or Supreme Court in the US has restrained any state from constructing a dam by an interim order,” says Supreme Court Advocate Mohan Katarki. expressing his reservations against interim stay. “In fact,the Cauvery Water Disputes Tribunal in 1991 declined to restrain Karnataka from constructing its Hemavathy and Harangi dams,” added Katarki,who has represented Karnataka in Krishna Water Dispute case.

Experts suggest that dam construction work need not be restrained as the water can always be released and,in worst case,dismantled to allow the flow. They point out that the contesting party can proceed to continue its dam construction work at its own risk with the understanding that it will have to be undone in case of adverse judgment.

However,the copy of judgment made public by the Court of Arbitration indicate that India’s reluctance to assert that it was proceeding at its own risk early on went against it despite New Delhi acknowledging this principle during the hearing on Pakistan’s petition seeking stay in August. The judgment says Pakistan’s counsel had inquired from India in March whether New Delhi was undertaking construction activities on Kishanganga under the principle of “proceed at your own risk”. In response,India did not expressly commit itself and instead sought to assure Pakistan by pointing out that it did not plan any diversion of water before 2015.

Pakistan,which had submitted its version of the dispute through a memorial,proceeded to seek interim stay in June even as India was to yet provide its version of dispute through a counter-memorial.

“Having reviewed Pakistan’s arguments as 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,” paragraph 140 of the proceedings dealing with Court’s analysis says.

What added to India’s woes was the visit of the Court to the project site in June where it learnt that “activities to prepare the construction of the dam in the riverbed at the Gurez site are set to commence in November 2011”.

“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,” the Court noted.

India’s counsel Fali Nariman sought to do damage control on the the last day of the hearing asserting “in unequivocal terms” that “in this case,India is committed to proceed on the ‘own risk principle’ of international law”.

While the court allowed many other related construction activities,it concluded that allowing permanent construction over the riverbed was “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”.