In a setback to India in its dispute with Pakistan over the Kishenganga project in Jammu and Kashmir, the Court of Arbitration has restrained New Delhi from undertaking any permanent dam works on or above the river bed that might inhibit the flow of the river.

It, however, did not place any restriction on India going ahead with construction of other components of the dam, namely the water conductor system, coffer dams, the temporary by-pass tunnel and excavation below the river-bed level. As per international law, India will do so at its own risk in case the final order provides for changes in the project design.

Pakistan, which had taken the matter to the court, had sought full moratorium on the entire 330 MW Kishenganga project under construction in Baramulla district.

India is yet to file its reply to Pakistan's petition stating why it has objections to the project. New Delhi has to file a counter-petition by November on why it is right and Islamabad's objections do not hold.

“Except for the sub-surface foundations of the dam…India shall not proceed with the construction of 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,” the court's interim order said.

It said that for the duration of the proceedings up until the rendering of the Award, it was open to India to continue with all works relating to the project except for the restriction placed by it. “India may utilise the temporary diversion tunnel it is said to have completed at the Gurez site and may construct and complete temporary cofferdams to permit the operation of the temporary diversion tunnel, such tunnel being provisionally determined to constitute a ‘temporary by-pass' with the meaning of Article I (15) (b) as it relates to Article III (2) of the [Indus Waters] Treaty.”

The “interim order” received here on Saturday urged both India and Pakistan to undertake joint inspection of the site to monitor the implementation of the court's direction. Both parties may also submit their agreement or disagreement on the implementation of the order.

The Court had inspected the site in June.

The Court observed that it will remain actively seized of the matter and may revise the interim order or issue further orders in the light of the circumstances then obtaining.

In the dispute over the project, Pakistan maintains that it has the rights over the western rivers including Jhelum (of which Kishenganga is a tributary) and diversion of waters by India for its project on Kishenganga will adversely affect its project on Neelum river (as Jhelum is called in Pakistan).

India, however, holds that it is well within its rights under the Indus Waters Treaty to deliver waters into a tributary to the extent that the then existing agriculture and hydroelectric uses by Pakistan are not affected. New Delhi says that so far Pakistan has not given details of any agriculture use and its hydroelectric use is also non-existent.

Before this, Pakistan had taken the matter of India's 450 MW Baglihar hydroelectric dam to a neutral expert. At Islamabad's behest the works on the Tulbul Navigation project have also been stayed at the bilateral level.

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