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“Proceeding at Your Own Risk”: Evaluating a New Principle of International Law for Provisional Measures

Written by  Shouvik Bhattacharya

In Passage Through the Great Belt, Finland requested the International Court of Justice to issue provisional measures preventing Denmark from constructing a bridge that could lead to an abridgment of Finnish ships’ rights of free passage through the Great Belt. The ICJ denied Finland’s request for interim orders, and in so doing made a pointed note that “in principle . . . if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled.” Twenty years later, this statement would be institutionalized as “a principle of international law” in an arbitration proceeding between India and Pakistan.

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Through a request dated May 17, 2010, the Islamic Republic of Pakistan initiated arbitration proceedings against the Republic of India under the Indus Waters Treaty of 1960. The dispute centered on India’s construction of the Kishenganga Hydroelectric Project (KHEP) that Pakistan claimed violated its rights under the Treaty. Pakistan subsequently requested provisional measures under Paragraph 28 of Annexure G of the Treaty on June 6, 2011, asking the Arbitration Panel to enjoin any further construction on the KHEP until the Panel’s award at the merits stage. Pakistan also asked the Panel to declare that “[a]ny steps India has taken or may take in respect of the KHEP are taken at its own risk and without prejudice to the possibility that the Panel may in its decision on the merits order that the works must not be continued or must be modified or dismantled.” The latter is Pakistan’s restatement of what it repeatedly referred to over the course of the arbitration proceedings as the “proceed at your own risk” principle of international law, which it claimed to derive from the Great Belt case. By an order dated September 23, 2011, the Kishenganga Order, the Panel granted Pakistan partial relief and enjoined India from constructing the dam portion of the planned project. As to the remaining parts of the project, while the Panel did not formally declare further provisional measures, it stated that “the continuation of such activity is appropriately governed by the ‘proceed at your own risk’ principle of international law” and thereby implicitly—functionally—granted Pakistan’s latter demand as well.