The Baglihar Dam and the Indus Water Treaty

The failure of the recent Pakistan-India talks on the Baglihar Dam, being constructed by India on the Chenab river, have brought home to the Pakistanis not only the shortcomings of the 1960 Indus Waters Treaty but also the consequences to the whole agricultural sector of the country once the Dam becomes operational.

The public surfacing of the Baglihar Dam issue has also cleared some popular misunderstandings regarding the Indus Waters Treaty, especially the assumption prevailing in Pakistan that the IBRD or World Bank was a guarantor of this Treaty. In fact, this is not the case at all. The fact of the matter is that the Indus Water Treaty is primarily a bilateral treaty with the World Bank only being a signatory ‘for the purposes specified in Articles V and X and Annexures F, G and H.’1 Article V basically relates to the financial provisions of the Treaty while Article X, which relates to Emergency Provision – relating to the completion of the water systems provided for in the Treaty under Article IV (1) – is effectively now redundant. It related to Pakistan making a representation to the Bank before March 31, 1965 that the works stipulated in Article IV (1) would not be able to be completed before March 31, 1971 ‘because of the outbreak of large-scale international hostilities arising out of causes beyond the control of Pakistan,’ which would prevent it from obtaining the necessary materials and equipment from abroad. Interestingly enough, it is just as well that no war commenced between Pakistan and India before March 1965, because this Article would then not have been applicable since it includes the phrase, ‘international hostilities arising out of causes beyond the control of Pakistan.

While the World Bank, under the Treaty, does have an obligation to appoint a neutral expert, under Annexure F, there is no legal mechanism whereby the findings of this expert can be implemented forcefully by the World Bank against the wishes of one of the Parties. Of course, the terms of the Treaty are binding on the signatories and, therefore, the decision of the neutral expert also falls in this category; but then India has violated the terms of the Treaty itself – so, who will ensure that it accepts the findings of the neutral expert?

Annexure G relates to the setting up of an Arbitration Court, with lists of members and Chairmen already identified within the Annexure. Annexure H basically focuses on transitional arrangements and has now lapsed. It seems that once the neutral expert decides that the issue in question is not merely a technical issue but a dispute, then the arbitration procedure can be activated.

Obviously India had done its homework on the Indus Water Treaty far better than us. By going for a neutral expert through the World Bank when the Baglihar Dam project is almost complete, we are not going to get much. Even if the expert rules in our favour, who will make India undo the Dam physically? Certainly not the World Bank, which has quite correctly stated that it is not a guarantor of the Indus Water Treaty of 1960.2 So it is strange to find the sovereign state of Pakistan having surrendered the rights to the use of its three Eastern rivers (Beas, Sutlej, Ravi) in return for the rights over the waters of the three Western rivers (Indus, Jhelum, Chenab), with no international guarantees to stop India from eventually seeking to deny Pakistan access to all its river waters.

Under these circumstances, if Pakistan had opted for the neutral expert much earlier, as soon as the construction had started on the Baglihar Dam and before it was almost complete, it could have sought international political leverage to pressurise India into abiding by the Treaty provisions. After all, there is nothing that prevents states from pursuing two parallel tracks on any one issue, so dialogue on the overall issue would not have been foreclosed simply because a neutral expert was looking into the technical aspects of the Dam issue.

In fact, Pakistan had initially sought to use the neutral expert provision of the Treaty as early as 2003, but the Indians sought to delay this by asking Pakistan to hold technical level talks. When that failed the Indians sought to continue to delay Pakistan seeking the intervention of the neutral expert by suggesting bilateral meetings between the two countries’ water and power secretaries. And throughout this period, the work on Baglihar continued. Clearly the Indian intent was to keep Pakistan engaged in a meaningless dialogue on the issue while the project neared completion so that Pakistan would eventually be presented with a fait accompli.

It seems highly unlikely that anyone would be able to compel India to undo the transgression of the Treaty by its construction of the Baglihar Dam. At best, we may arrive at a moral victory and be forced to conclude a new accommodation based on the new realities of the Dam. So much for the Indus Water Treaty. In some ways the present situation relating to the Baglihar Dam reminds one of the Atlantique case3 when we should have realised the limitations of ICJ jurisdiction, and therefore should have used the political fora of the UN to morally and politically condemn India for its act of wanton aggression.

Although the issue came to a head in 2003 with Pakistan demanding that India stop the illegal construction of the Dam, Pakistan has been raising the Baglihar issue with India since May 1992 when India first supplied it with information regarding the Dam. Pakistan raised objections in August 1992 and since then the issue has been raised at the various meetings of the Indus Waters Commission (IWC) and through exchange of letters (see a chronology of events on the issue in the Annexure). But Indian intransigence on this issue has resulted in the present near-conflictual situation. India has also tried to enmesh the issue with the issue of Kashmiris getting access to sufficient electricity, whereas the two are not linked at all.

The Indus Water Treaty does allow India the right to hydroelectric power generation from the Western rivers but only by run-off river installations without affecting the volume and direction of water. What is clearly not allowed is building storage capacities on the Western rivers, which directly impede the flow of the waters (Article III (4). In order to safeguard against interference with the flows of these rivers by the upper riparian (India) plant designs have to conform to criteria laid down in Annexure D of the Treaty.

At the last meeting between Pakistan and India to resolve the issue, Pakistan sought satisfaction on five major points of concern to it:

That the project design should be based on low-level weir since the run of the river projects do not require a ‘high head’ of 475 feet.

That the calculations of ‘pondage’ and ‘firm power’ in the design was inconsistent with the Indus Water Treaty, while the level of ‘intake’ in the project design was low and contravened the Treaty.

According to the Treaty requirements, the design should be based on ‘un-gated’ spillways. The Indian design was contrary to the Treaty requirements. India had to also ensure that gates were at the highest level as provided for in the Treaty.

The Treaty criteria need to be fulfilled for the provision of calculations and justification of ‘free board’.

Arrangements needed to be made to monitor and inspect the site at the time of plugging of the low-level tunnel.

The Indians maintained their posture that the Treaty did not restrict the construction of a high dam and that the ‘pondage’, ‘firm power’ and the level of intake and ‘free board’ being developed by India were premised on sound techno-economic considerations. In fact India evaded the issue of whether all these points of concern raised by Pakistan were contrary to the Treaty, and refused to respond to Pakistani objections on the basic design. Pakistan’s basic argument remains that the Treaty permitted construction only of a ‘run of the river plant’ on the Chenab and not a high dam of 475 feet.

In the light of the total lack of a satisfactory response from India on this crucial Baglihar Dam issue, Pakistan finally approached the World Bank to appoint a neutral expert, although many in Pakistan feel this is too late to do much good since India has announced that it will continue to complete the project.

Additionally, India has also shown intransigence on other related water issues coming under the purview of the Indus Waters Treaty. For instance, the Indians are pursuing the Kishanganga hydroelectric power project, as well as maintaining the stalemate on the Wullar Barrage. The former project is nearing completion with a 22-km tunnel to divert the waters of the Neelum river to Wullar Lake. The Neelum is an integral part of the river Jhelum – again one of the three Western rivers – and, therefore, the Kishanganga project also contravenes the Indus Waters Treaty because it impacts the flow of the waters of the Western rivers to Pakistan. Not only will the flow of the water be affected but also Pakistan’s prior rights for its proposed 969 mw Neelum-Jhelum hydropower project in Azad Kashmir.

Indian lack of concern over observing international Treaty commitments has surfaced once again with an announcement of three more dam projects in Occupied Kashmir.4 The new projects are again on the Western rivers – the Uri-II project is on the Jhelum river in Baramulla district, and Pakal Dul and Burser, both on the Marusundar, a tributary of the Chenab river in Doda district. The Indian Ministry of Power has already approved these projects and it seems apparent that India may well be headed towards reneging on the Indus Water Treaty totally if Pakistan asserts its rights under the Treaty.

All in all, the Indus Waters issues not only highlight the very real security dimension of the Kashmir issue for Pakistan but also Indian efforts to pit the Kashmiris against Pakistan on the false claims that Pakistan wishes to deny the former access to hydroelectricity from the waters that flow through Kashmir. Unless Pakistan exposes Indian designs and the absurdity of its claims to the Kashmiris, Pakistan will find itself not only moving towards desertification of the rich plains of the Punjab but also may find itself facing an increasingly hostile Kashmiri population across the LOC.

References

See the complete text of the Treaty: The Indus Waters Treaty 1960 printed by the Printing Corporation of Pakistan Press, Lahore.

‘WB denies being treaty guarantor’, Dawn, January 20, 2005.

When India shot down a Pakistan Navy trainer craft inside Pakistani territory, on August 10, 1999.

Iftikhar Gilani, ‘India to build three more dams in IHK’, Daily Times, February 20, 2005.

Shireen M. Mazari
Director General


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