Rare victory: Pakistan wins stay order against Indian dam

Published: September 25, 2011
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Construction site of the Kishanganga Hydroelectric Project. PHOTO COURTESY: HALCROW

Construction site of the Kishanganga Hydroelectric Project. PHOTO COURTESY: HALCROW

KARACHI: After several months of defeats in the international diplomatic arena, Pakistan scored a rare victory on Saturday: the Netherlands-based Court of Arbitration has accepted Islamabad’s application for a stay-order on the Kishanganga Dam and ruled that, until a final settlement between India and Pakistan is reached, New Delhi will not be allowed to resume construction.

The seven-member court unanimously ruled in favour of Pakistan’s application seeking a stay order on construction of the Kishanganga Hydroelectric Project (KHEP).

Under the order, India will not be allowed to make “any permanent works on or above the Kishanganga/Neelum riverbed at the Gurez site that may inhibit the restoration of the flow of the river to its natural channel.”

Pakistan has contended that the Kishanganga Dam – named after the tributary of the Jhelum River – violates the 1960 Indus Waters Treaty signed by India and Pakistan to allocate the use of the Indus river system.

The ruling is a surprising reversal of an August 25 decision by the panel that had decided against issuing a stay order. On that occasion, infighting within Pakistan’s legal and diplomatic team had caused them to present what the court had then described as an unconvincing argument.

While not an endorsement of Pakistan’s stance on the dam building controversy, the stay order grants one of Islamabad’s most important requests: that India’s construction activities be halted. Crucially, from the Pakistani perspective, no such order has been issued to Pakistan, which is building a dam three times bigger, known as the Neelum-Jhelum Hydroelectric Project (NHJEP).

This order is absolutely critical for one reason: the court is likely to determine which of the two projects – KHEP or NHJEP – should be allowed to proceed based on one criteria above most others: which dam is closer to completion.

The Indian dam was scheduled for completion in 2014, whereas the Pakistani dam is not scheduled to be finished until 2016. The stay order, however, completely changes those timelines, particularly since it affects only the Indian dam and not the Pakistani one.

This methodology is known as the ‘priority rights method’ and is derived from the Indus Water Treaty itself. It is considered unusual in international law and had been deemed by many Pakistani experts as almost fatally weakening Pakistan’s case, since India has completed about 40% of the construction on the Kinshanganga Dam.

It is unclear, however, whether the stay order improves Pakistan’s chances of winning the overall case against the Indian dam.

On May 17, 2010, Pakistan had initiated proceedings against India at the Court of Arbitration under Article IX and Annexure G of the Indus Waters Treaty.

India had expected Pakistan to seek a stay order in January 2011 and was surprised when Pakistani officials failed to do so. Indian newspapers described Pakistan’s delay as an ‘unexpected reprieve’ for New Delhi.

The new stay order comes with an enforcement mechanism: Pakistan and India will arrange for joint inspections of the dam site in India to ensure that the Court’s orders are followed.

India had planned to generate about 300 megawatts of electricity from the dam, a project that is now likely to be put into jeopardy.

The seven-member Court of Arbitration is based in The Hague, in the Netherlands. It is chaired by Judge Stephen M. Schwebel (United States), former President of the International Court of Justice. The other members of the Court are Sir Franklin Berman (United Kingdom), Professor Howard S. Wheater (United Kingdom), Professor Lucius Caflisch (Switzerland), Professor Jan Paulsson (Sweden), Judge Bruno Simma (Germany), and Judge Peter Tomka (Slovakia).

Published in The Express Tribune, September 25th, 2011.

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Reader Comments (49)

  • OmmyPak
    Sep 24, 2011 - 11:59PM

    Good :)

    Recommend

  • Nadeem Ahmed
    Sep 25, 2011 - 12:06AM

    Talks or arbitration are the only two options to get your rights.

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  • Raj
    Sep 25, 2011 - 12:15AM

    Does India care? Both Inida and Pakistan are lawless countries.India has more resources to appeal. It would take another other 50 plus years to implement the orders, by that time the game will be different.

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  • Haris
    Sep 25, 2011 - 12:36AM

    This ban is ineffective. India has already completed this project and make available water for Pak at her own will. Late decision costing us River jhelum water…. Sigh

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  • Mirza
    Sep 25, 2011 - 1:01AM

    This only proves that the Mush govt did not care about this issue. If it were left to Mush, this project would be complete and Pakistan would not even react. Going to International organizations also proves that the world boy is not Pakistani enemy. In fact they are fair and impartial. In a similar way, if Pakistan is right then let us invite the UN observers to prove that Pakistani army has nothing to do with Haqqani group and Pakistan has nothing to hide.

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  • Tahir
    Sep 25, 2011 - 1:18AM

    Can’t wait to hear the response of the Indians on ET that are obsessed with Pakistan.

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  • Umair Waheed Sheikh, Khayban e Hafiz,IBA Karachi
    Sep 25, 2011 - 2:01AM

    electricity crisis will be resolved now haha!

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  • Mujeeb Athangal
    Sep 25, 2011 - 2:16AM

    I dont think India will respect the judgement. However, good decision.

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  • Someone
    Sep 25, 2011 - 3:04AM

    Waiting for the Indians’ responses…

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  • John B
    Sep 25, 2011 - 3:49AM

    Unlikely to happen in the end. It is a standard practice and the issue has been exhaustively researched in international legal circles. PAK should separate domestic political issues from international affairs. If only she has done that she would have been elsewhere globally,

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  • honestindian
    Sep 25, 2011 - 5:49AM

    well i think the court did the right thing,if Pakistanis are so skeptical of India’s intentions,then India should first convince the Pakistanis that its not stealing any water.i mean after all we share the water and rivers don’t belong to any one country,they don’t know any borders.

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  • Pakistani
    Sep 25, 2011 - 5:56AM

    India will never learn. Very bad.

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  • Khan
    Sep 25, 2011 - 6:21AM

    Right is might , Alhamdulillah.

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  • Nahid Siddiqui
    Sep 25, 2011 - 6:48AM

    This is indeed good news. But will India comply with the ruling of the International Court. I think not. We have so antagonized India in the past that I do not think they will comply. We supported terrorist activity in India for the past twenty years. We have been responsible for the 1965, 1971 and Kargil wars. I will not be surprised if the ISI might have connections with the attacks on Mumbai or the Indian Parliament. Do you really think we can expect India to comply with the court. What powers does the court have. What country will support us in forcing India to comply.

    I expect many of you will hate me and I appologise if I offend you. We Pakistanis are overflowing with righteous indignation. But if you really love your country and want to help it, we need to free ourselves from our false pride and fragile egos. We are be paying heavily for our past foolishness.

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  • Jim
    Sep 25, 2011 - 7:25AM

    Bogus story it appears. A week back it was reported that ICJ decision was a setback to Pakistan. http://www.dawn.com/2011/09/19/comment-and-analysis-setback-in-the-water-dispute.html

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  • Pragmatist
    Sep 25, 2011 - 8:04AM

    How come there is no mention of this in the Indian newspapers?! If I were a Pakistani, I wouldn’t hold my breath. These so-called ‘tribunals’ are just sleepy heads who do an “eenie meenie miney mo” to make up their minds.

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  • Ameer
    Sep 25, 2011 - 8:45AM

    Where are the Indians now?

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  • M.A.S
    Sep 25, 2011 - 8:58AM

    Excellent!

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  • pakshia
    Sep 25, 2011 - 9:02AM

    so now what water levels will go up for Pakistan.

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  • Arjun
    Sep 25, 2011 - 9:04AM

    Haha, another example of how the Pak media either willfully or ignorantly manipulates the news to a gullible Pakistani public.

    In this case, the case hasn’t been decided yet folks. India is confident of a ruling in its favour. The ICA has just said that any work that India undertakes pending its decision would be at its own risk, and so it’d be better to stop the work temporarily while they arrive at their decision. The way it’s being presented to the Pak public, it’s as if India has been permanently denied the right to construct this dam. This is far from the truth.

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  • John B
    Sep 25, 2011 - 9:52AM

    ET is sensationalizing the title and news abstract without the facts

    First it is permanent court of arbitration .

    Second, there is no directive to stop construction on Indian side.

    Third. The site visit by the arbitration body was conducted and press release was issued on June 22,2011. The proceedings are still ongoing. There are no directives.

    Please correct the error, and state the error in the story with correction.

    Journalism is the fourth estate and it still has an important role to play in this commercial world. Credibility once lost is hard to recover.

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  • PakCritic
    Sep 25, 2011 - 9:55AM

    This NEWS is only in Pak news papers, please google it and see, I think this is blowout news with little substance, it may ask for suspend the work rather than stop it.

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  • John B
    Sep 25, 2011 - 10:28AM

    Ignore my previous comment for the old story. The new report is now correct.

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  • BruteForce
    Sep 25, 2011 - 10:28AM

    Hmm, then the floods in Pakistan this month and the last were a blatant lie? I dont understand.

    They say the rivers in Sindh are over flowing, but at the same time that there is no water.

    India should no violate the IWT at any cost. But, there are dozens of Hydro-electric projects that India is working on, of which Kishanganga is the biggest one, which must be continued.

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  • Hussain
    Sep 25, 2011 - 10:31AM

    Nice

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  • Cityboy
    Sep 25, 2011 - 10:41AM

    Congo pakistan. Where is the party?

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  • Nasir
    Sep 25, 2011 - 10:53AM

    It is highly unlikely that Pakistan will take this chance into its favor due to incompetency, corruption and inefficient bureaucracy.

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  • hammad
    Sep 25, 2011 - 11:12AM

    Indeed rare congratz…but look at Indians they are busy in making dams for their own people…its a victory as well as lesson to be learnt… Start building DAMS Pakistan

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  • d2412412
    Sep 25, 2011 - 11:27AM

    Thank God for once we managed to stand up for ourselves succesfully !!!

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  • khalis
    Sep 25, 2011 - 11:48AM

    its an stay order and allows India to carry on with the project on its own risk. in case India completes project before formal decision by ICA then any thing coming out of ICA is irrelevant. why? because ICA dont ask for structure to be demolished but only stops further work. and ICA is also known for slow processing.
    moreover ICA has shown bias before also, when the application was rejected at first, without considering it.

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  • MUNIB
    Sep 25, 2011 - 12:00PM

    Hence proved : The international community believes in justice and is neutral in PAK vs OTHER countries cases

    The problem is with people of PAK and its leadership which cant stop throwing their own ills on international community. We cant stop crying crocodile tears. If this same court ruled in favor of INDIA it would be PAK media throwing trash all around and crying like a kid with their typical “conspiracy” mantra and all that anti Israel USA bashing.

    Time for PAK nation to act maturely

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  • MQ
    Sep 25, 2011 - 12:31PM

    Surprising how the same facts can be presented in a myriad different ways by publicising only select facts!

    See
    http://www.thehindu.com/news/national/article2484518.ece?homepage=true

    and read through to the end.

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  • Anuj
    Sep 25, 2011 - 1:06PM

    how funny……the court didnt stay the work and ruled out any such possibility…..so India is going to continue its work and diverting the flow of river, even the excavation of river bed is allowed….so I dont really see relevance of title of the report……..

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  • Sep 25, 2011 - 3:49PM

    Vienna,25-09-2011
    Here I am an Indian monitoring events from far away
    welcoming the court decision. We welcome the decision.
    We may not go for an appeal now at this stage when
    Pakistan is sinking with the Jhelum floods not Kishan
    or Lalkishan Ganga floods carrying roses floated at the
    river´s origin! We are there celebrating with you the
    court decision.
    Taravadu Taranga Trust for Media Monitoring TTTMM India
    –kulamarva Balakrishna

    Recommend

  • Luqman Khan
    Sep 25, 2011 - 4:14PM

    from what I have been reading it is the diversion with some design aspects of the dam that have been challenged and there is a clear stop works order on any permanent structure and works that would allow a permanent diversion (having read both Indian and Pakistani reports). So how is this presenting the facts in a myriad of ways. It’s an excellent decision for Pakistan and an achievement so let’s not trivialise it with such statements just because we’re not dam engineers and don’t know what coffer dams are. And where are all those who claimed that the Court had already announced its decision!! An apology is due from them to the nation for misleading us and the team working on this matter for trying to defame and demoralise it.

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  • Organization of Pure Profit
    Sep 25, 2011 - 6:08PM

    It just takes one F-16 to undo a 100 Indian Projects. That’s not a problem. What are the Pakistani Engineers doing, just get Chinese to work on the Pakistani Project, get it done, ASAP! Supply us cheap energy so our businesses grow.

    Recommend

  • Raj
    Sep 25, 2011 - 7:53PM

    @Organization of Pure Profit: It takes one drone to undo Pakistan’s Nukes.

    Recommend

  • Arjun
    Sep 25, 2011 - 11:38PM

    “It just takes one F-16 to undo a 100 Indian Projects.”

    And there you have the Pakistani mentality – always destruction, never creation.

    Recommend

  • Khalid
    Sep 26, 2011 - 4:44AM

    @Nahid Siddiqui:
    Go live in India and stop bashing all Pakistanis and Pakistan. Shame!Recommend

  • Observer
    Sep 26, 2011 - 5:42AM

    This ET report does not tell the true story on the ICA rulings. All that the court has said is that the flow of water cannot be permanently changed by India. This was mainly in reference to India’s temporary diversion of the flow through diversion tunnels that have been constructed as part of the process of building the dam. The court has approved this temporary tunnel diversion to enable building of coffer dams. But once the dam construction is over, the court wants India to stop the flow through the diversion tunnels even though the water still gets back on the natural path of the river. There is no injunction against India completing the dam and harvesting electricity.

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  • Observer
    Sep 26, 2011 - 5:45AM

    @Luqman Khan:

    “here is a clear stop works order on any permanent structure and works that would allow a permanent diversion “

    Yes, that is the key sentence. India is not planning any permanent for permanent diversion. So, as far as India is concerned, nothing much changes since the current diversion tunnels are temporary in nature.

    Recommend

  • Aamir
    Sep 26, 2011 - 5:51AM

    India wants to starve Pakistan’s agricultural economy.

    Recommend

  • sanjithmenon
    Sep 26, 2011 - 6:05AM

    And today, they retract their own statements? Nation misled on Kishanganga ‘victory’
    http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=9118&Cat=13

    Recommend

  • Luqman Khan
    Sep 26, 2011 - 11:15AM

    “They” have not retracted any statement. The author is contradicting himself and furthermore, two weeks ago he had stated in his then report that the court has already announced its decision and had rejected Pakistan’s application. Where’s the credibility? But this report suits you so you’re happy with it. Recommend

  • Santosh
    Sep 26, 2011 - 12:33PM

    Pakistani capacity to misinterpret and jump to conclusions is amazing. The ICA simply stated that India shouldn’t do anything that cannot be undone later to restore the river to the current flow. It didn’t issue a stay order halting work. As Indian reps and engineers have stated, the order has no impact on the planned work anyway. Yet, no Paki news media has even bothered to understand the order, and jumped to a completely wrong conclusion.Recommend

  • xoxo
    Sep 26, 2011 - 1:57PM

    @Tahir:
    how does it matter. This dam is already built.

    Recommend

  • Cynical
    Sep 26, 2011 - 7:27PM

    Let us respect the judgement.No gloating is required.
    I hope we will show similar faith if and when a court verdict is not in our favour.

    Recommend

  • Era
    Sep 27, 2011 - 11:08AM

    This is an classic example that how people are made fool out of everything. Project construction is not halted only on surface work of dam is being stayed.Water is diverted to Jhelum from Kishanganga and no part of water of Pakistan is compromised. Even Tarbella is hardly affected by this Project. Moreover Pakistan will get more benefit, if any project between LoC and confluence of Kishanganga & Jhelum is built up by Pakistan. I wish why these two countries fight over trivial issue, why they don’t provide their energy for development of their people. Had this been made a storage project by mutual co-operation and energy generation could have shared by India and Pakistan.Recommend

  • Tony Singh
    Sep 27, 2011 - 1:40PM

    @Organization of Pure Profit:
    The way I see it, if Pakistan had military strength to match Indians, it would have done that already.Recommend

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