THE matter relates to the Indus Water Treaty, 1960 which was signed at Murree on 19 September, 1960 by FM Ayub Khan and Prime Minister Nehru as a sequel to a document of intention which was signed on 4 May, 1948 by Nehru and Ghulam Muhammad, the Governor General, Pakistan. Succinctly speaking Article 2 of the 1960 Treaty provides the unrestricted availability of the waters of the eastern rivers to India. The restrictive use is enumerated in the later sub paragraphs of the Article likewise Article 3 provides unrestricted availability of waters of western rivers to Pakistan while creating an obligation for India to let flow of the waters of these rivers without interference by India as mentioned in para 5 of the Annexure C to the Treaty. The present cause of action has arisen because the parties failed to resolve the dispute concerning the Kishenganga Hydro Project (KHEP) pursuant to the terms of Article IX (4) of the said Treaty. The matter was taken for Arbitration. Pakistan has postulated two issues for determination, these are: Whether India's proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah breaches India's legal obligations under the Treaty including India's obligations to let flow all the waters of the Western rivers and not permit any interference with those waters and maintenance of natural channels; Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-river plant below dead storage level in any circumstances except in the case of an unforeseen emergency." It is Pakistan's case that the Kishenganga project is a run of river plant which will divert water from the Kishenganga/ Neelam river through a tunnel having a capacity of 58.4 cumecs, which capacity is more than the entire flow of the river at the Gureg site for six months in average in a year (October to March). India has already made it public to use the entire capacity, which means that this will result in interfering with the entire flow of the river for about six months in a year. Besides, it will adversely affect the flow of the river to Pakistan at Nausery for operation of the Neelam-Jhellum plant. While it is also said that there will be adverse environmental consequences and damage to the river animal species. Another dispute is regarding the use of an orifice spill way in the design of the project allowing India the ability to manipulate the flows of water detrimental to the down stream state of Pakistan. Pakistan sought interim relief from the International Court of Arbitration (ICA) at the Hague while the matter remains pending for a final decision. After hearing the parties and appreciating the factual position brought to its notice the ICA in paragraph 150 and 151 of its interim order dated 23.9.2011 enjoined: "150. In the circumstances, the Court concludes that the construction of this portion of the KHEP is 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. The Court considers that while this arbitration is pending, and subject to any agreement between the parties as to the implementation of the present order, India may: (i) erect temporary cofferdams and operate the by-pass tunnel it has said to have completed; (ii) temporarily dry out the riverbed of the Kishenganga/ Neelum at the Gurez valley; (iii) excavate the riverbed; and (iv) proceed with the construction of the sub-surface foundations of the dam. However, as specified above, until the Court renders its Award, India may not construct any other permanent works on or above the riverbed that may inhibit the restoration of the full flow of that river to its natural channel." The treaty itself permits India hydro electric generation on the Western Rivers subject to stringent conditions and besides the scope of objections in view of the treaty of 1960 was of course limited. Given this background the court observed in para 142 and 143 as follows: "142. In the Court's view, the suspension of many of the key components of construction activity of the KHEP, such as the boring of tunnels and the construction of the power house, does not appear to be "necessary" to safeguard its ability to render an effective award. As seen during the court's site visit, the construction and completion of these elements of the KHEP occur at some distance from the Kishenganga/ Neelum riverbed, and would thus not in and of themselves affect the flow of the river. Thus, even under the hypothesis that the Court finds at the merits stage that Pakistan's claims, or elements of those claims, are meritorious and the KHEP cannot be completed and put into operation as planned, no violations of Pakistan's rights would have been caused by the tunnelling and power house construction aspects of the KHEP, and no particular remedies seem to be available from the court in this regard (at least as far as the court can see at this early phase in the proceedings). In the Court's view, the continuation of such activity is appropriately governed by the "proceed at own risk" principle of international law, as specifically recognised by India during the hearing. The situation would merely be one in which India would have invested considerable sums of money without reaping the benefit of the operation of the KHEP as currently envisaged. This, however, is precisely the risk that India has declared it is willing to assume and there seems to be no further risk of "prejudice to the final solution," in terms of the Court's Award, in allowing these aspects of the KHEP's construction works to proceed." Obviously this observation does not give a carte blanche to India but allows it to proceed on: "proceed at own risk" basis which will of course be without prejudice to the ultimate decision and the principle of "pendente lite". In this connection the Court followed the precedents set in cases: (i) Pulp Mills on the River Uruguay (Argentina V. Uruguay), ICJ Reports 2006, p. 113, and (ii) Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1976, p. 3, at p. 16. The good news is that the permanent works which will always interfere in the full flow of the river to its natural channel is covered by the interim relief Pakistan got through para 151 ibid. The restriction on permanent construction and the ICA observation in para 140 of the order said: "140. That said, the Court is satisfied that Pakistan has presented a plausible, provisionally tenable argument under the Treaty in support of its case. Having reviewed Pakistan's arguments as they are 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, which makes it clear that Pakistan has a case and the interpretation of the relevant provision of the Treaty was a need for resolving the dispute through arbitration. The final results will of course depend on how Pakistan later handles its case based on facts, the intentions of the makers of the 1960 Treaty, the International Law of Treaties and the Customary International Law. Pakistan has also to keep a keen vigil over acts of India in this connection and has to report breeches of the interim order to the ICA. (The author has been formerly an International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court, presently: Co-Chairman of UNESCO Appeal (Judicial) Board - Paris, France and Professor of International Law) Email:chowhan2@hotmail.com