Barrister Haaris Ramzan The Kishanganga Dam and the construction of the Kishanganga hydroelectric Power Project (KHEP) by India add to the greater divide between the neighbouring states. The concept of KHEP in itself is a blatant violation of the Indus Waters Treaty (IWT) 1960, which has forced Pakistan to approach the International Court of Arbitration (ICA). To add to Pakistans anguish, according to the latest media reports, it has been refused a stay order by the ICA on the KHEP. Before going into further detail, it is important to actually understand the dispute and its legal implications. This would require a comparative analysis of the international norms and the IWT. The Kishanganga River, upon entering the Pakistani territory is recognised as the Neelum River that originates from the Indian held Kashmir (IHK), and flows through the Gurez Valley to join Jhelum River near Muzaffarabad, at Domail, in Azad Jammu Kashmir (AJK). The KHEP involves the building of a dam in Gurez Valley and a 22km long tunnel, which will alter the course of the Kishanganga River. This diversion will change the path of the Neelam River before it joins the Jhelum River near Muzaffarabad, the site where Pakistans indigenously built Neelum-Jhelum Hydel Project (NJHP) is situated. In addition, the construction of the Kishanganga Dam is also in violation of Article III(4) of the IWT, which places an obligation or restriction on India not to construct any similar projects on the western rivers, that is, on Indus, Chenab and Jhelum. Also, the construction of KHEP will adversely affect the NJHP, as its power generation capacity will reduce radically. In accordance with Article III(2) of the IWT, India is also prohibited from developing any human made obstructions that shall have or may cause a change in the volume of the natural flow of western rivers. Pakistan, for the second time, is seeking a resolution of the issue through arbitration. Annexure G of the IWT confers upon the parties a right to take a dispute to the ICA, as a last resort. Previously, the World Bank, on Pakistans persistence, appointed a neutral expert under Annexure F of the treaty to resolve the issue of the Baglihar Dam; a project that was constructed on River Chenab by India. Unfortunately, the outcome of the case was not in Pakistans favour. In addition of the above discussion, there are certain other international norms that need fair consideration. The Helsinki Rules on the Uses of the Waters of International Rivers 1966, formulated by the International Law Association (ILA), and the second report on the Uses of International Watercourse 1986, drafted by the International Law Commission (ILC), prohibit co-riparian states (states through which or along a portion of a river flows) from altering the flow of an international watercourse in a way that can cause harm to another state. Furthermore, the International Convention on the Law of Non-navigational Uses of International Watercourses 1997 (ICLNUIW), also states that the riparian countries (states bordering the same transboundary waters) have the right to use their water resources in a way so as not to damage the other riparian states. This law has been approved by the United Nations General Assembly. Article V of the ICLNUIW talks about the equitable and reasonable utilisation of water keeping in mind the interests of other states, while Article VII places an obligation on states not to cause significant harm to other watercourse states. Another area that needs consideration is the impact on environment. The Gurez Valley is rich in natural beauty. Its forests and meadows are home to a wide range of flora and wildlife. The project threatens to eradicate large known habitat areas and to destroy an entire valley with its forests and meadows. This deforestation can eventually and drastically affect the climate of the region causing a change in the weather patterns that can result in severe droughts, floods and widespread disruption of natural ecosystem. As part of the proceedings in the ICA, the court has also instructed the Indian delegation to submit a report on the environmental hazards to the ecosystem due to this project. Further, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinkis Convention 1992) is another area that needs to be considered. It requires states to strengthen their national measures for the protection and ecologically sound management of transboundary surface waters and ground waters. Article II(2)(d) of the convention, in particular, obliges states to take all appropriate measures to ensure the conservation, protection and restoration of the ecosystem. Although, Pakistan and India have not ratified the treaty, there is a responsibility on these states (as these norms are also part of customary international law that have a persuasive authority) to formulate effective measures to protect their respective ecosystems. It is, however, evident from the above discussion that India's actions have become a serious cause of concern for the Government of Pakistan. Simply approaching the ICA to find a solution to the dispute will not suffice, rather what needs to be done is to form a team of experts, who have the requisite qualification for the job. I would suggest that a team of experts on international law, not international relations, is the need of the hour, which is led by a person, who would comprehend all the legal lacunas and would sensitise his peers with the possible outcomes and an expert on water laws. Unfortunately, what we do not realise is that the recent debacle at the ICA is purely due to the absence of an international law expert, which had a fatal brunt on the Pakistani water laws expert. The writer is a practicing barrister and an alumni of the International Visitor Leadership Programme (IVLP) organised by the US Department of State. Email: