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


http://www.issi.org.pk/journal/2005_...comment/1c.htm

Reconsidering the Indus Waters Treaty: The Baglihar Dam Dispute

Indian plans to go ahead with the Baglihar Hydropower Project on the Chenab River in the Indian state of Jammu and Kashmir (J&K) has evoked opposition from Pakistan which claims that the project puts the World Bank-brokered Indus Waters Treaty (IWT) of 1960, the only successful treaty between the two arch-rivals, at risk. While Pakistan claims the project to be in contravention of the IWT provisions, the J&K Assembly passed a resolution on 3 March 2003 asking New Delhi to reconsider the IWT to safeguard the interests of the State. The resolution stated that the IWT was discriminatory as the rights over waters of three rivers of the State - Jhelum, Chenab and Indus - were with Pakistan and India had to seek permission for any construction plans on these rivers. The failure of the recent three-day (4-6 January 2005) foreign secretary-level talks on the Baglihar project held in Islamabad led Pakistan to shoot a letter to the World Bank asking it to resolve the dispute with India. However, the World Bank responded on 19 January 2005 saying that though it is a signatory to the Treaty, it is not the guarantor for the IWT. The Bank has also said that it is for India and Pakistan to appoint a neutral expert for resolving the problem.

The Baglihar Project
Negotiations between India and Pakistan during 1951-1960 held under the supervision of the World Bank resulted in the signing of the IWT on 19 September 1960. This is the only treaty between the two arch rivals that has worked effectively for over four decades and is, at times, cited by international funding institutions, as an illustration of cooperation between the two hostile neighbours. The Indus system of rivers comprises three eastern rivers - Sutlej, Beas and Ravi - and three western rivers - Indus, Jhelum and Chenab. The Baglihar Hydropower Project (BHP) is being undertaken on the River Chenab in Doda, 160 km north of Jammu. Apart from objecting to the project design of the BHP, Pakistan has expressed opposition to the Tulbul navigation project, Sawalkote Hydroelectric Project and the Kishanganga Hydroelectric Project, all located in J&K.

Under the IWT, the waters of the eastern rivers are allocated to India and those of the western rivers, to Pakistan. The average annual flow of waters in the eastern rivers is estimated to be around 33 Million Acres Feet (MAF) whereas it is 135 MAF in the western rivers. The Pakistani contention over the BHP relates to the Article V of the IWT which relates to the compensation to be paid by India to Pakistan towards the latter's losses incurred during the construction of water drawing projects on the western rivers in lieu of water supplies for irrigation canals in Pakistan which were dependent on the water flow from the eastern rivers. The IWT allowed Pakistan to construct a system of replacement canals to carry water from the western rivers into those areas in West Pakistan that were earlier dependent for their irrigation supplies on water from the eastern rivers. The Indian contention in this regard is that since India has already paid its contribution of 62,060,000 pounds to the World Bank towards compensation to Pakistan under this clause, therefore, the Article V is no more valid. But Pakistani contention is that the IWT had imposed some restrictions on India over the usage of waters of the Indus, Jhelum and Chenab. Therefore, New Delhi cannot alter the flow on any of these rivers.

In the years after the IWT, Pakistan built the Mangla and Tarbela dams and several other storage facilities on Indus, Jhelum and Chenab. India also embarked on a series on construction projects including dams and barrages on the Ravi, Sutlej and Beas rivers. While these projects did not lead to any serious differences between the two neighbours, the BHP is opposed by Pakistan which claims that India is attempting to divert the water flow into Pakistan through this project.

J&K's Initiatives
The J&K government had sought counter-guarantees from the Centre for implementing major hydel power projects in the State. However, due to a delay in the sanctioning of such guarantees, the former Farooq Abdullah government signed a memorandum of understanding (MoU) with Jai Prakash Industries Ltd, Siemens and Hydro Vevey Ltd for completing the 450 (Megawatt) MW Baglihar hydel power project. The MoU was signed on 11 April 1999. The total cost of the project is estimated at about Rupees 3,800 crore and the project is expected to be completed by December 2004. The J&K government has already provided Rupees 150 crores for the project and work on the BHP began in May 1999. On 29 August 2003, the then Indian Prime Minister Atal Behari Vajpayee promised his government's assistance for raising Rs. 2,200 crore for the completion of the BHP. Around Rs. 1,600 crore has already been allocated for the project by the J&K government and the remaining amount would be generated with the help of the Centre and financial institutions. Vajpayee also announced the sanctioning of the Rs. 665 crore Sea-II power project of 120 MW capacity to be undertaken in Kashmir by the National Hydel Power Corporation (NHPC).

The BHP will tap around 7,000 cusecs of water of Chenab for irrigation purposes in the short-term and once the project is completed, electricity would also be generated for meeting the shortfalls in the State's power demands. The BHP would meet around one-third of the total power requirements of J&K. The BHP project would also provide employment to thousands of people living in the Ramban, Banihal, Doda and Gulabgarh areas. Already, the BHP has generated employment to 5000 skilled and unskilled workers. The project will have an initial installed capacity of 450 MWs which could be increased to 900 MW by an expansion programme. The Baglihar Dam will be 144 metres high and the head race tunnel two km long and 10 metres in diameter.

J&K is reported to have about 15,000 MW of power potential. In the past two decades, investments of over Rs. 4000.00 crores have already been made in the power sector. During 1997-98 to 2001-2002, investments of Rs. 1,400 crores were made which were markedly higher compared to previous years. Several debates over the BHP in the Jammu and Kashmir Assembly raised the issue that there is growing resentment amongst the people of the State over the government's failure to harness the enormous hydroelectric power potential. This is mainly because of the provisions of the IWT which deny India the right to exploit common water resources. The Mufti Sayeed government in J&K is keen on the Baglihar project as it would help meet the power shortages in the State and contribute to generating employment as well. With the growth in the population of the State which has led to an increase in the demand for water for irrigation and other purposes, officials of the J&K government are of the view that the practical decision would be to either amend, if not abrogate, the IWT.

Pakistani Opposition
Pakistan contends that the BHP would lead to a reduction in the downstream flow of water in the Indus as River Chenab is one of the important water source for Indus. Moreover, Pakistan is also opposed to the construction of the Wullar barrage which India is building on the River Jhelum. Both India and Pakistan are also planning to build a hydropower dam on the Neelum River (a tributary of River Jhelum). Pakistan says that the BHP would increase India's storage capacity (in J&K) to 1,64,000 acre feet which is much higher than that allowed under the IWT. The BHP will also allow India to control the flow of water to Pakistan's disadvantage. Pakistan further says that the construction of the controversial gate structure at Baglihar could deprive Pakistan of more than 7, 000 cusecs (cubic feet per second) of water a day from the Chenab. Clearly, the BHP has become the bone of contention between the two countries. Apart from the BHP, Pakistan is opposing India's other water projects on the Indus saying that these are in contravention of the IWT.

A three-member Pakistani team of water and power experts headed by Jamaat Ali Shah, Commissioner of the Permanent Commission on Indus Water (PCIW), had inspected the BHP in October 2003. Such annual inspections have been provided under the IWT. Following the inspection, the team presented a report to the Pakistani government saying that India was building the dam in contravention of the IWT clauses. Moreover, they also claimed that India had not redesigned the BHP in accordance with Pakistani conditions. In its report, the team stated that the BHP would deprive Pakistan of 26 to 28 per cent water in winter season thereby affecting Pakistan's irrigation water requirements especially during the Rabi crop season [The Nation, 25 November 2003].

Bilateral Talks
The recent foreign secretary-level parleys held in January 2005 failed to resolve the dispute as both India and Pakistan remained stuck to their respective positions. The talks were held between a 12-member Indian team led by Secretary (Water Resources) V. K. Duggal and a Pakistani delegation headed by Secretary (Water and Power) Ashfaq Mehmood. The discussions focussed on six technical areas identified including the pondage level, the gated spillway and the level of intake tunnels. While India stated its readiness to re-examine Pakistani objections to the design of the dam, Islamabad wants the project to be stopped as it fears that India may eventually manipulate the flow of water, which could affect agriculture in Pakistan. Moreover, a change in the water flow table from India to Pakistan could add to the ongoing water-related tensions between Pakistani provinces. With India showing no concessions on the issue, Pakistan stepped up its campaign against the project by briefing envoys from different countries, including US and China, on 12 January 2005. However, Islamabad also assured the foreign envoys that a failure in Baglihar talks would not affect the ongoing composite dialogue process with India. The IWT provides that disagreements by the parties on the interpretation of the provisions of the Treaty are classified into three categories: questions are examined by the PCIW; differences by a Neutral Expert; and disputes by a Court of Arbitration. The fact that India and Pakistan have failed to resolve the disagreements means that it would now be referred to a 'Neutral Expert', either appointed by the two countries, or by a third party agreed upon by the two sides. In the absence of such an agreement, the appointment of the 'Neutral Expert' would be made by the World Bank, in consultation with the two countries. The decision of the Neutral Expert on all matters within his competence shall be final and binding. If the 'Neutral Expert' is of the view that the 'differences' between the two parties are to be treated as a 'dispute', then a Court of Arbitration would be established to resolve the matter.

The Way Out
The PCIW, established under the IWT, includes experts on water and power from both countries who meet annually in India and Pakistan alternately for exchanging documents relating to the sharing of common water resources of the Indus. Article IX of the IWT provides that if the two sides are unable to resolve any dispute bilaterally at the level of the PCIW, then a team of neutral experts or arbitration should be used to resolve the problem. For India, there are two options. First, India can go ahead with the project after settling the dispute with Pakistan either bilaterally or by involving the role of neutral experts for the first time in 42 years to resolve the problem. The second option for India is to go ahead with the BHP in accordance with its own designs and if met with opposition, New Delhi should walk out of the IWT. The J&K Assembly debates over the issue have reflected support for the second option. Though it is clear that the IWT's greatest achievement is that it is the only treaty that has withstood India-Pakistan hostility and also depoliticised the water issue to a large extent, the treaty needs to be amended taking into consideration the present requirements of the Indian state of J&K. The Baglihar project will significantly benefit the Kashmiri people by generating employment opportunities as well as meet the power shortages in the state. Also, the Indian leadership has reaffirmed that the project is not intended to either dam the rivers or affect the flow of waters to Pakistan. Observers therefore say that Pakistan's opposition to the project is unwarranted and indicates that Islamabad is playing with the aspirations of the Kashmiri people.



http://www.jammu-kashmir.com/insight...20050101a.html

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Aarwaa

Pakistan is ruled by three As - Army, America and Allah.

Pakistan seeks visit to Baglihar Dam site

Sunday, June 01, 2008

By our correspondent

LAHORE: Pakistan still has reservations about the Baglihar Dam and has asked India to allow inspection of the site to confirm that Delhi has made the changes suggested by a World Bank expert appointed on Pakistan's complaint.

Pakistan Indus Commission head Jamaat Ali Shah stated this after the 100th meeting of the permanent Indus Commission held at the National Engineering Services of Pakistan (NESPAK), Lahore. The meeting discussed the outstanding water-related issues and modalities for cooperation between Pakistan and India.

Two rounds of talks were held on Saturday between the Indian Indus Commission, headed by Arojun Nath, and Pakistan Indus Commission, led by Jamaat Ali Shah. Flood information sharing between the two countries and the dispute over the construction of Kishan Ganga project by India were the main points of discussion in the six-point agenda that also included the Baglihar Dam.

Both countries signed the annual report of the commission, which is required to be presented to their respective governments on June 1 every year. Modalities for the next year were also discussed.

Matters concerning the Kishan Ganga and the Orri-2 were also taken up during the deliberations. Pakistan asked India to inspect the site of Neelum-Jehlum hydro-electric project in May 2009.

The two sides avoided giving final comment on the first day of the talks that are expected to continue till June 4.

Sources said both sides defended the position adopted by their governments on the contentious issue of the Kishan Ganga project. However, some progress is expected after five days of deliberations. There would be a joint briefing by the heads of the delegations after the conclusion of talks on June 4.

The Indian side was willing to share flood information with Pakistan, which would allow Pakistan to plan evacuation. The Indian delegation, during its stay in Pakistan, would also visit Nankana Sahib and the Wagah border.


http://thenews.jang.com.pk/top_story...l.asp?Id=15060

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Aarwaa

Pakistan is ruled by three As - Army, America and Allah.

Pakistan permitted to inspect Baglihar dam: official

May 31st, 2008 -


By Muhammad Najeeb
Lahore, May 31 (IANS) India has agreed to Pakistan’s request to inspect the Baglihar dam project in Jammu and Kashmir and the dates for this will be worked out soon, a Pakistani official said Saturday. “The dates for the inspection will be worked out soon,” the official told IANS after the first session of the four-day 100th meeting of the Permanent Indus Commission (PIC) here.

There was, however, no confirmation of this from the Indian side.

Going into the meeting, G. Aranga Nathan, who is heading the 11-member Indian delegation, said the Baglihar project was not included in the agenda.

“We have a set agenda and would be going according to it,” he told reporters.

His Pakistani counterpart Syed Jamaat Ali Shah agreed that it was not on the agenda but maintained that any issue can be brought up for discussion by either side.

“We are looking forward to taking up the Bghaliar issue in this meeting,” Shah said.

The first session of the meeting concluded with both the sides expressing their satisfaction over the progress they had made. The meeting began with officials of the two sides cutting a cake to mark the 100th meeting of the commission.

The Pakistani official said both sides expressed their satisfaction over the exchange of information regarding flood alerts and other water related issues.

The PIC, a permanent commission between Pakistan and India, was established with the help of the World Bank after the 1960 Water Treaty between the two neighbours.

At least one annual review meeting of the commission is mandatory but on many occasions, the two sides have met more than once a year.

The meeting will continue till June 3 and the Indian delegation is expected to leave for home the same evening.

The Baglihar hydropower-cum-water storage project is being built on the Chenab river tht flows from Kashmir into Pakistan.

“The Pakistani team will urge the Indian side to give an exact date for inspection of the Baglihar project to determine whether or not the work is under way in accordance with the decision of the World Bank appointed neutral expert last year,” said the Pakistani official.

Pakistan has raised concerns on the design of the project and sought modification on freeboard, level of power intakes, poundage and spillway.

After India’s refusal to modify the design, Pakistan in 2006 sought mediation by the World Bank, which appointed Raymond Lafitte as a neutral expert to review the project and examine Pakistan’s concerns.

In his Feb 12, 2007 report, Lafitte said that the Indian calculation on freeboard was inaccurate and said India should set the crust level at the lowest. He, however, rejected other objections by Pakistan saying India can go ahead with the construction of the project.

He directed India to reduce the freeboard by 33 percent from 4.5 metres to 3 metres.

While both sides claimed victory after the Lafitte report, Pakistan has been saying that it needs to inspect the project to determine if the expert’s decision is being implemented.

“Now we want to ensure that the design is being modified and will be commissioned under instruction by the expert,” the Pakistani official told IANS.


http://www.thaindian.com/newsportal/..._10055081.html

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Regards

Aarwaa

Pakistan is ruled by three As - Army, America and Allah.