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IBRU: Centre for Borders Research

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Tribunal orders interim measures in transboundary water arbitration between India and Pakistan

(29 September 2011)

On 23 September 2011, the arbitral tribunal in the dispute between India and Pakistan over the construction of India’s Kishenganga Hydroelectric Project (KHEP) ordered interim measures pending its final decision on the merits of the case. In 2010, Pakistan instituted proceedings against India through provisions outlined in their 1960 Indus Water Treaty and a five-member tribunal was established. Pakistan believes that the KHEP violates India’s obligations within the 1960 Indus Treaty as the upstream state. The main dam of the KHEP project would be located on the Kishenganga or Neelum river upstream of the point where the river flows across the Line of Control and into Pakistani controlled territory. The project aims to divert water from the Kishenganga river (a tributary of the Indus river) through a diversion tunnel and into another tributary of the Indus north of Lake Wular within Indian controlled territory.

In the course of the proceedings, Pakistan also requested the tribunal to issue interim measures that would halt construction of the KHEP pending the final decision. The five judges of the arbitral tribunal visited the KHEP site in June 2011. In its decision of 23 September, the tribunal indicated that India would be allowed to continue construction on the diversion tunnel and hydro-electric facilities, as well as any temporary coffer dams within the Kishenganga river, at its own risk pending a final decision. However, the tribunal ordered India to halt any construction of permanent obstructions within the river bed that would cause irreparable reduction in water flow until the final decision was reached on the merits of the case. It is believed this will include the main dam facility within the Kishenganga river.

Source: Court of Arbitration in the Indus Waters Kishenganga Arbitration 'Order on the Interim Measures Application of Pakistan dated June 6, 2011' 23 September 2011 (published by the Permanent Court of Arbitration, 26 September 2011).