AMER RIZWAN: November 2009

World Bank Mediation on Baglihar Dam:
Implications for India Pakistan Relations

Amer Rizwan

Natural resources, if effectively tapped, can guarantee the prosperity of a country. However, in the developing countries mismanagement, slower economic growth and a strong desire in these states to exercise stringent control on their already scant natural resources, prevail for certain interrelated reasons. The trend has led them to tax the environment and the nature beyond their natural capacity. This desire, on the part of these countries, has all the potential of breeding violent conflicts over the so-called issues of “blue gold” i.e. water. South Asia is one such region which owing to all the aforesaid factors, coupled with the recent upsurge in the growth and production, has led to create more appetite for energy. Countries of South Asia are naturally endowed with hydro-potential, which if effectively tapped, can at least partially meet their higher demands for energy. India, the biggest country of the region, has to allay the concerns of its neighbours i.e. Pakistan and Bangladesh as the lower riparian states and Nepal and Bhutan as the upper riparian states, while utilising the hydro potential of its waters.[1] While discussing the paraphernalia of this complex situation would be beyond the scope of this study, suffice to say that Indian actions, time and again, corroborate that the concerns and apprehensions of these relatively smaller Indian neighbours are not totally out of place.[2]
Background
In the spring of 1948, after the winding up of the arbitral tribunal (standstill agreement), India stopped waters of the rivers, flowing into Pakistani portions of the lower Doab canals and Dipalpur canal from the Ferozpur headworks, spelling almost a disaster for the fledgling state. The water flow cut off by India affected 1.6 million acres of Pakistan’s irrigated land i.e. 5.5 per cent of its total irrigated area.[3] At the time of independence, the boundary line between the two newly created independent countries i.e. Pakistan and India, was drawn right across the Indus Basin, leaving Pakistan as the lower riparian. Moreover, two important irrigation headworks, one Madhopur on Ravi River and the other at Ferozpur on the Sutlej River, on which the irrigation canal supplies in Pakistani Punjab had been completely dependent, were in the Indian territory.[4] A dispute thus arose between the two countries regarding the utilisation of irrigation water from the existing facilities. This abrupt act of stopping the flow of rivers water into Pakistani canals stressed the urgent need for Pakistan to formulate an agreement between the two countries regarding the future use and distribution of the combined waters. India demanded that Pakistan should recognise Indian proprietary rights over these rivers, so that it could not get any water from them as a right. Pakistan on the other hand, insisted on resolving the issue on the basis of the time-honoured principle of upper and lower riparian states.[5] The ensuing negotiations between the two countries did not resolve the problem. The inter-dominion agreement was signed between the two countries as an ad hoc arrangement.

Indus Waters Treaty 1960
After protracted negotiations, the Indus Waters Treaty was signed in Karachi on September 19, 1960 by the then Prime Minister of India Jawaharlal Nehru, the then President of Pakistan Field Marshal Mohammad Ayub Khan and Mr. W.A.B. Illif, of the World Bank in a five-day summit under the good offices of the International Bank for Reconstruction and Development (IBRD) or World Bank. However, it was deemed effective from April 1, 1960.
The Treaty inter alia gave three eastern rivers, namely Ravi, Sutlej and Beas to India, the three Western rivers, Indus, Jhelum and Chenab to Pakistan and constituted a permanent Indus Waters Commission comprising a Commissioner each from both the countries, to resolve the disputes between the parties. The Treaty sets out the procedure for settlement of the differences and disputes. It also provides for settlement of disputes through the International Court of Arbitration. Safeguards are incorporated in the Treaty to ensure unrestricted flow of waters in the Western rivers. Pakistan was to meet the requirements of its Eastern river canals from the Western rivers by constructing replacement works. However, as an upper riparian state, India was allowed certain specific consumptive and non-consumptive uses in the western rivers as well. The Treaty also circumscribed India’s right to build water storage facilities in the rivers allocated to Pakistan. The generation of hydroelectric power is one of the uses allowed to India with certain restrictions imposed on the operation of such plants. It is under this provision that India is constructing many what it calls the run-of-river projects on the rivers and their tributaries that are specifically to be used by Pakistan under the terms of the Indus Waters Treaty. Baglihar Hydro-electric plant is one such project that India is constructing on the river Chenab in Chanderkote in Doda district of the Indian Held Kashmir about 110 Kilometers eastward of the Line of Control and 147 Kilometers above the Marala Headworks in Pakistan.

Baglihar Hydroelectric Project: Background and Technical Parameters
Earlier, on April 14, 1978, the Salal Agreement had been signed between Pakistan and India on the controversial Salal Hydroelectric plant on the Chenab River. The agreement is the only success story i.e. a “question” was amicably and bilaterally resolved under the ambit of the Indus Waters Treaty. Again, in 1985, India started work on Wuller barrage or Tulbul project on Jehlum River. Pakistan lodged a strong protest with the Indian government, saying the construction was in violation of the Indus Basin Treaty and asking India to stop work on the project for three months. Since then, work on the project is suspended.[6] However the issue is one of the agenda items of the India-Pakistan Composite Dialogue Process and is yet to be resolved. Yet another controversial project, being carried out by India, is Kishanganga storage-cum-hydroelectric power project on the River Neelum, a tributary of River Jehlum.
However, the issue that received much media glare is the Baglihar Hydroelectric Project. This project was conceived in 1992, approved in 1996, and its construction began in 1999. After completion, this would be the largest power station in the Indian Held Kashmir. The 900 MW hydro-power station is being built in two stages: 450 MW was commissioned at the end of 2005 in the first phase, while the second phase was to be completed by the first quarter of 2008. The project envisages the construction of a 144.5 meter high and 317 meter long concrete gravity dam across the River Chenab with a gross storage capacity of 321,048 Acre Feet.[7] According to technical experts, the project could deprive Pakistan of 8,000 cusecs of water per day.[8] All this would mean that Pakistan would witness a descendent curve in its crops production ratio as the farms are irrigated by river waters in much of its Punjab province. Pakistan contends that certain design parameters of the project, such as excessive freeboard of the dam, location of intake for the power plant, excessive pondage and location of the spillways, are in contravention to the Indus Waters Treaty. In simple words, the height of the dam would stop the flow of water into Pakistan; the very structure violates the 1960 Indus Waters Treaty, that run of the river projects apart, under the provisions of the Treaty the water of River Chenab is to be exclusively used by Pakistan, and that the gated structure of the dam would also provide India the capability to manipulate the flow of water to Pakistan’s disadvantage. However, India holds that it is a run-of-the river project and is fully compatible with the provisions of the Indus Waters Treaty.[9]
Owing to this conflicting view, the “question” has been discussed at the level of the Permanent Indus Commission since 1992. Several rounds of meetings between the officials of the Indus Water Commission from both countries in New Delhi, Islamabad and on the site of the dam, failed to resolve the issue. After that and keeping in view Indian aversion to any third party role, bilateralism was given a chance. However, two rounds of intense negotiations failed to reconcile the conflicting positions of the parties. Pakistan considered Indian negotiating strategy as:
(i) one of delay, of foot dragging, of “tiring you out”;
(ii) of “creating facts” – proceeding with construction plans, even when aware that the plans may well violate the treaty, so that Pakistan, confronted eventually with fait accompli, would have no choice but to cut its losses and accept an unfavourable compromised settlement; and
(iii) insisting on a bilateral framework of talks, without intending ever to settle it on any but India’s terms.[10]

Owing to the continuing differences between the two parties on the design of the project, it was agreed during Prime Minister Shaukat Aziz’ visit to India on November 23-24, 2004 that a final effort would be made for the resolution of the issue by convening a meeting of the Water Secretaries and Water Commissioners of the two countries. Even the said meeting did not produce any results, as India refused to comply with Pakistani demand that construction work on the project be postponed as a precondition for continuing the talks. India argued that it will not repeat the folly of stopping the work as it had done in the case of Wuller Barrage. In Pakistan, the public perception was that India was deliberately dragging the process of negotiations and in the meanwhile was expeditiously carrying on the project.

Failure of Diplomacy: A Request Made to The World Bank
In the wake of exhaustion of all these channels, Pakistan sent a written request to the World Bank on January 15, 2005 to appoint a Neutral Expert, stating that a “difference” had arisen between India and Pakistan under Article IX(2) of the Indus Waters Treaty, relating to the Baglihar Project. Disagreements by the parties on the interpretation of the provisions of the Treaty are classified into three categories: questions are examined by the Permanent Indus Commission; differences by a Neutral Expert; and disputes by a Court of Arbitration. The Bank after consultation with the parties, appointed Raymond Lafitte, Professor at the Federal Institute of Technology of Lausanne, Switzerland as the Neutral Expert on May 10, 2005 to determine the claims. Pakistan’s request raised a number of Points of Difference for Expert Determination in respect of the design of the project on the basis that certain features of the design did not conform to the criteria specified in the Treaty. To put it simply, Pakistan’s contentions were based on the following points:

o India’s calculations of the design, flood and the height of the dam (freeboard) i.e. 4.5 meters are excessive, and provides India with the handle to artificially raise the water level in the operating pool above the full pondage level.
o India’s calculations of the required Pondage of 37.5 Mm are too high as the correct pondage should be 6.22 Mm.
o The level of intakes for the Power Plant i.e. 818 metres are not at the highest level as required by the Treaty.
o Conditions at the Baglihar site do not require a gated spillway, and the gates of the spillways were not at the highest level. The location of the spillway gate that is 27 metres below the dead storage level (the level beyond which water cannot be drawn down or depleted except in cases of emergencies) is unnecessary.[11]

There are apprehensions that the project can wreak havoc in Pakistan if water supplies are suspended for 28 consecutive days during December, January and February, as it would affect agriculture and other requirements at Marala Headworks. Pakistan also apprehends that the project may lead to inundation of the area above Marala Headworks due to the sudden synchronised releases from Dal-Hasti, Salal and Baglihar reservoirs.
Even before the final determination, the Neutral Expert had expressed in the initial determination that Pakistan’s contention was valid, when seen strictly in the context of the Treaty, but the modern day technology provided ways of addressing Pakistani concerns regarding the project.[12] The Expert gave his determination on February 12, 2007. As per text of the determination, the Neutral Expert while interpreting the Treaty has relied on the rules of the Vienna Convention on the Law of Treaties, which reflect customary international law with regard to ordinary methods of treaty interpretation.

The Treaty contains clear language and wording on how and to which extent India and Pakistan may be allowed to utilize the Indus system of rivers. The Treaty also gives a clear indication of the rights and obligations of both Pakistan and India. These rights and obligations should be read in the light of new technical norms and new standards as provided for by the Treaty--------the Neutral Expert is of the opinion that interpretation of the Treaty must be guided by the principle of integration and the principle of effectiveness. These two principles provide for the Treaty to find effect in its whole and to ensure that each of the object(s) and purpose(s) of the Treaty is given fullest weight and effect when interpreting rights and obligations under the Treaty.[13]

The Neutral Expert’s Determination and the Parties’ Reaction
The neutral expert, Mr. Raymond Lafitte partially upheld some of the objections raised by Pakistan. His principal findings are:
o Freeboard of the dam is not at the lowest elevation. So height of dam structure (Freeboard) should be reduced by 1.5 m (from 4.5 m to 3.0 m) above the full pondage level leading to a dam crest elevation at 843.0 m as.
o The pondage capacity of the dam should be reduced by 13.5 per cent.
o The elevation of the power intake tunnels, stipulated by India is not at the highest level, as required by the criteria laid down in the Treaty. So the intake level should be raised by 3 metres and fixed at 821.0 m asl.

All these findings limit some flow control capabilities of the earlier design.
o The height and gated control of the spillways are conforming to the engineering norms of the day. The NE considers, in conformity with the state of the art, that the conditions at the site of the Baglihar plant require a gated spillway. An analysis done by the NE on 13,000, existing spillways in the world shows that 89% of these structures … are gated. He also finds that with the ultimate objective of the sustainability of the scheme, it is essential that the present position of the spillways (below the dead level) be retained. This arrangement is a sine qua non for the maintenance purposes of the project i.e. sediment control and evacuation of the large part of design flood.[14]

The day the determination was received, Pakistan called it a “great victory” claiming that by accepting three out of four objections to the dam built by India, the World Bank Neutral Expert has held India responsible for violating the Indus Waters Treaty, because Baglihar’s design was incorrect.[15] In the same way, India claimed victory by saying that the changes recommended by the Neutral Expert are minor and that the power-generation capacity of the project would not be affected.[16] The way the findings are implemented and the Determination interpreted will have far reaching implications for Indo-Pakistan relations. However, Pakistan is ostensibly not satisfied by the Neutral Expert’s determination on the gated spillway count. Both the then Federal Minister for Water and Power Minister Liaqat Ali Jatoi and the Indus Waters Commissioner Jamaat Ali Shah’s dissatisfaction is well-known.[17] Pakistan Indus Water Commissioner Jamaat Ali Shah revealed that Raymond Lafitte accepted Pakistan's stance on the spillway gates — that under the Indus basin treaty they could be installed at the highest possible level.

But in the final verdict the neutral expert supported Indian position using the word 'international practices' and 'state of the art' technology. On this issue of the spillway gates, the World Bank expert has deviated from the Indus basin treaty that gives clear guidelines for building hydroelectric projects on the western rivers of Chenab, Jhelum and the Indus.[18]

Dr Ijaz Hussain, former Dean, Faculty of Social Sciences, Quaid-i-Azam University Islamabad, has also contented that the case was not decided in accordance with International Law and the terms of the Treaty. He further argues that Pakistan can challenge the award.[19]

Whereas the textual interpretation allows India to construct a submerged spillway on the ground that it is consistent with sound and economical design, the object and purpose forbids it to do so because it provides it with the means to interfere with the free flow of waters.[20]

The then Pakistani Federal Minister for Water and Power, also suggested that Pakistan may avail of its right to go into the appeal against the verdict.[21] There is serious consideration in the official circles of Pakistan as to how to challenge the neutral expert’s determination on the Spillways in an arbitral tribunal, and to maintain simultaneously that the other findings remain binding.[22] Pakistan undoubtedly fears that the verdict may amount to a carte blanche for India to build more dams. This could potentially be a source of more tension between the two neighbouring countries. India, on the other hand, takes the award as a precedent to be followed in its all other disputes with Pakistan.[23]

The Impact of the Verdict on the Indus Waters Treaty
For India, the Indus Waters Treaty, for all practical purposes stands amended in its favour. India considers this a high time to re-examine its approach to the Wuller barrage and Kishanganga project. The government of Pakistan is, thereby, mindful of the more creeping violations by India on the rivers allocated to Pakistan under the Treaty, specifically on both Jehlum and Chenab rivers. This attitude of India would further exasperate the Pakistanis who inwardly think Pakistan to be the loser in the verdict. However, knowing full well that India is averse to any third party role, Pakistan may rightfully hope that India would not test its patience too far. However, all this has not deprived Pakistan of its legal right i.e. to go to the World Bank if its rights under the provisions of the Treaty were violated yet again.
Much of the impact of the judgment on the Indus Waters Treaty can be observed once it is clear as to whether or not India and Pakistan are going to implement the findings of the Neutral Expert in good faith. Already Indian experts have been describing the verdict to be a virtual license to build more dams of the sort, thereby trying to take maximum leverage out of the legal lacunas created by the modern day engineering and technology.[24]
Although the text of the Expert’s Determination does not outrightly suggest that the findings are of binding nature, yet the President of the World Bank, Mr. James D Wolfensohn, before appointing the Neutral Expert, said that the verdict of the expert would be “binding” on the parties.[25] Again, the canons of fair-play and practice demand that because they have been the outcome of a long and intricate legal process, these findings may be implemented. There is an interesting dimension to the same. Pakistan is not satisfied at least with parts of the Determination, yet it, time and again, reiterates that it is binding and that it should be implemented. It is so because the Determination has been made in accordance with the Treaty, and probably Pakistan’s own interests rest on the continuing accession to the original Treaty. Ironically, India does not hint at the binding character of the Treaty yet it is fully resolved to exploit the Determination in its favour. As stated earlier, India wants to use the Determination politically by getting more leverage in its other water issues vis-à-vis Pakistan and by demonstrating to the Kashmiris that it is making the Treaty more subservient to their interests.

Implications for Pakistan-India Relations
Pakistan’s economy is agriculture-based and hydro-power is the main source (about 50 per cent) of energy for the domestic as well as for the industrial consumers. According to CIA World Factbook, 22 per cent of Pakistan’s Gross Domestic Product is agricultural and 42 per cent of its labour force is engaged in agriculture.[26] There is also threat perception in Pakistan that the dam can also be used as a weapon by India. So it is but natural that it would eye with scepticism any developments that are detrimental or are potentially harmful to its interests. Any controlling mechanisms by India on the Western rivers may either flood Pakistan’s farms and populated areas or may stop the much-needed water during the dry spell. This nightmare of Pakistan is more than often almost realised by the statements from the Indian elite. A former Indian High Commissioner to Pakistan, Mr. G Parthasarathy reportedly said,

Should we not consider measures to deprive the Pakistanis of the water they need to quench their thirst and grow their crops? Should we not seriously consider whether it is necessary for us to adhere the provisions of the Indus Waters Treaty. … extraordinary circumstances demand extraordinary responses.[27]

Pakistani concerns were confirmed when India probably replied in affirmative to the questions raised by Mr. G Parthasarathy by actually releasing, in July 2005, 564,000 cubic feet per second of water into the Chenab from the Baglihar dam thus flooding portions of Pakistan.[28] It is primarily owing to these factors that there is almost a knee-jerk reaction in Pakistan whenever India intends to construct anything on the western rivers of the Indus River System. However, some official Indian circles also blame Pakistan for taking domestic political leverage out of the purely technical issues.
Pakistan may or may not be making a political leverage out of technical issues yet there is no denying the fact that India is doing so by trying to drive a wedge between the pro-Pakistani Kashmiris and their Pakistani supporters. It is condoning its own commissions or omissions under the Indus Waters Treaty by propagating that Pakistan is responsible for laying obstacles in its efforts to raise the life standard of the Kashmiris living in the Indian Held Kashmir (IHK). The IHK has been reeling inter alia under severe power shortage for the last few decades which has impeded developmental activity in the region. Ironically, it is richly endowed with extensive water resources. This power shortage has often been attributed to India’s inability to harness these resources owing to Pakistan’s objections. The Kishenganga, Salal, Wuller are cited by the Indians as the few of well known stalled projects.[29] Construction of all these projects creates environmental concerns in Pakistan as well. According to international practice, if pollution causes trouble in a downstream country, an upstream neighbour may opt to pay for a treatment plant in lieu of reduced inputs or reduced withdrawals.
Making arguments on the basis of this point, the pro-Indian Kashmiri leaders leave no stone unturned in questioning the Kashmir credentials of Pakistan. However, the key question is whether large dams are the only answer to the power woes of Indian Held Jammu & Kashmir? Several projects such as the Dulhasti, Uri-II have been inordinately delayed by Indian authority while Pakistan’s interventions have nothing to do with these projects. The topography of the region makes transmission and distribution of power extremely difficult. The Indian government has never given due importance to develop small hydropower generating plants in IHK, which could have been developed not at the expense of the Indus Waters Treaty and good neighbourly relations with Pakistan.[30] Political analysts also question this argument by stating that India gets its 50.9 per cent and 34.4 per cent from Coal and Petroleum respectively; hydropower contributes just 6.3 per cent to the total energy consumption in India. If the energy needs of the entire India could be met mostly by non-hydro power sources, then it is anybody’s guess as to where the shoe pinches in IHK.

Indian media likewise creates an impression that as the Indus Waters Treaty fails to incorporate the interests of the Kashmiri people, so it should either be altogether scrapped or substantially amended so that Kashmiri people are able to harness the power of the rivers that originate from Jammu and Kashmir.[31] Writing in the Chennai-based Frontline, A G Noorani argues, “the fact that the state (the Jammu and Kashmir) was not consulted while the treaty was signed does not affect its validity…”.[32] The pro-Indian Kashmiri leaders may be joining the chorus with their Indian mentors, yet the All Parties Hurriyat Conference (APHC) questions the wisdom of violating the Indus Waters Treaty by urging the parties to abide by the Treaty in its letter and spirit. Besides, it is also argued that any would-be power supply and “prospective” development and prosperity are nullified by the fact that the dam construction would submerge almost the entire Doda.[33] It seems that one reason why the APHC and Pakistan sanctify the Indus Waters Treaty is its origination as a result of multilateral arrangements.
Again, there are certain elements in India and Pakistan who have great faith in the Chenab Formula of conflict resolution that would not only end the water woes of Pakistan but would also offer the best possible solution to the Jammu and Kashmir dispute. The Formula is based on the “Dixon Plan”, proposed in 1950 by Sir Owen Dixon, who came as a United Nations representative to Pakistan and India. According to the Formula, IHK would be partitioned, with Pakistan being granted the Kashmir Valley and a substantial (and Muslim majority) of Jammu, enough to give it command of the Chenab River. Pakistan may hypothetically consider “Doaba”, a narrow strip of land between Chenab and Ravi in the suburbs of Shakargarh, stretching up to Chamb, Doda and Rajwari districts as international border. India would be supposedly bound to agree to give territory from Kargil upward to Pakistan. Most of the towns in Jammu and on the left bank of the Chenab are Hindu majority while in most of the districts on the western side of the Chenab, the Muslims are preponderant. As per Formula, Pakistan may forego its claim on the Buddist Majority Ladakh region, but it would never compromise on the Valley.[34] The proponents of the Formula argue that in such an eventuality, even the Indus Waters Treaty could be terminated, because then Pakistan would be able to develop Chenab’s potential to the maximum, not only in terms of storage dams for irrigation but also for hydroelectric power and flood control.[35] Nevertheless, this is only a hypothetical situation and both India and Pakistan have to make hard and bold decisions before arriving at this situation. Until then, abiding by the Treaty is the best course to follow.
India might abjure any third party role in India-Pakistan disputes, yet, Indus Waters Treaty, Run of Kuch, Kargil crisis, 2001-02 standoff between India and Pakistan are but some of the cases which prove the utility of outside facilitation if not outright mediation. The failure of the two parties to resolve the issue of Baglihar as a “question” under the ambit of the Indus Waters Treaty bilaterally and its referral to the World Bank Neutral Expert has inter alia a diluting impact upon the so-called Indian “Monroe Doctrine”.[36] Renowned Indian journalist Kuldip Nayar, is of the opinion that as a gesture of good will and in order to sustain the peace process, India should renounce and abandon the Baglihar project.[37] The Indian leadership, subject to taking the piece of advice from him seriously, would have saved its traditional insistence on resolving the issues with Pakistan bilaterally from being damaged. Moreover, any bilateral concession on Baglihar would have a de-electrification impact on the public opinion in Pakistan which, in normal circumstances, is highly sceptical of Indian motives and actions. Moreover, the pacifists such as Kuldip Nayar and Praful Bidwai do not subscribe to the propaganda by a section of the Indian elite that the findings of the Neutral Expert would set a judicial precedent and India would be legally entitled to tap the waters of the western rivers.

Need The Treaty Be Revised?
Undoubtedly, both India and Pakistan, need to manage the increasingly important water-related issues with great circumspection and imagination; that is a sine qua non, not only for a peaceful South Asia, but also for the internal stability and development of the countries of the region. The Indus Waters Treaty was deliberately designed in order to settle the issues relating to water resources between the two countries once and for all, and it accomplished this aim by getting India and Pakistan to consent to the permanent partitioning of the Indus River System. It is the only agreement between India and Pakistan that is not only the product of peaceful negotiations with an active mediation by a third party, but which has also stood the test of time. However, there are observers, mostly on the Indian side, who question the rationality and the basis of the continued existence of the Treaty. By deviating from the time-honoured principle embodying the rights and obligations of the upper and lower riparian states, the Treaty has foreclosed any option of joint management of the Indus River System for ecological and environmental reasons, they argue.
An Indian commentator on water resources, Mr. B. G. Verghese is of the opinion that Indus-II should be constructed on the basis of Indus-I that would stipulate “a joint investment, construction, management and control” of the three western rivers allocated to Pakistan “but under the Indian control”. This, he argues, would lead to a lasting solution of the Jammu and Kashmir problem and would help transforming the Line of Control into a bridge of peace and tranquility.[38] He probably tries to invoke Article XII of the Treaty that provides the modifications of the Treaty on mutually agreed terms, though the latter has no exit clause. It is probably inter alia against this backdrop that India reportedly offered to share Baglihar and Kishanganga electricity with Pakistan.[39] Mr. Ramaswamy Iyer, a researcher in the New Delhi Institute of Policy Research goes a step further by saying that Indus Waters Treaty is a negative Treaty and it leads the signatories nowhere. He is of the opinion that if the cooperation of India and Pakistan on the Indus Waters is to be sought, there ought to be negotiated a totally new treaty; it simply cannot grow out of the existing treaty.[40]
No doubt, there are dissenting voices on Pakistani side as well, complaining that Pakistan has got merely 75 per cent of the share of waters when it has 90 per cent of the irrigated land, and the new patterns of irrigation under the Treaty provisions has led to ecological and environmental problems in Pakistan.[41] Again, the latter has to consistently and painstakingly vigil the motives and actions of India, because it apprehends that India may breach the Treaty parameters any time. The Treaty in itself offers very frail defences against its breach by India. Such a process is more than often frustrating for Pakistan because India tests Pakistan’s patience on this count off and on. Again, the Treaty has allowed India to utilise the waters of the eastern rivers to its benefit. It helped in diverting waters to arid areas like Rajasthan and developing irrigation facilities. As for the scrapping and overhauling of the Indus Waters Treaty, the simple logic is that how can Pakistan and India do away with an agreement that has been the outcome of almost a decade of rigorous negotiations with the active participation of the IBRD as a mediator and broker? Would Pakistan and India ever be in a position to conclude a bilateral agreement to the mutual satisfaction of the two parties, that is accorded sanctity and that can withstand the test of time? The answer lies in the inability of the two countries during the last six decades to bilaterally resolve even the relatively minor issues such as Sir Creek, Wuller, MFN etc. Four rounds of Composite Dialogue Process have not made any headway in issue-resolution. In the first place, therefore, any bilateral agreement between Pakistan and India on the Indus Waters is a remote possibility. Moreover, such an agreement would not be durable and mutually satisfactory.

There are some reservations regarding the Treaty in both countries. The general view in Pakistan is that India has got more water than its due share of Indus waters under the Treaty. Many in India think that the Treaty is very unfair to India and needs to be renegotiated. In the event of a review of the Treaty, both India and Pakistan will want to improve their respective shares. Obviously, that is not possible. The best course is perhaps to leave things as they are.[42]

Likewise, hydrologists in Pakistan believe that a breakdown of the Treaty may lead to widespread famine and further inflame the ongoing conflict over Kashmir. Moreover, the scrapping of the Treaty may have a debilitating effect on the hydropower capacity, which can adversely affect the domestic and industrial consumers alike.[43]
It is also worth mentioning on the issue of joint management of the Indus Rivers that both Pakistan and India had received and rejected the proposal, put by Mr. David Lilienthal, former chairman of the Tennessee Valley Authority, as early as in the 1950s that there should be a single integrated authority to operate, maintain, and distribute the Indus Waters between India and Pakistan.[44] Again, if we subscribe to Mr. B. G. Verghese’s and Mr. Ramaswamy’s hypotheses, then it presupposes that the Ganges Water Treaty between India and Bangladesh, and the Indo-Nepal Mahakali River Treaty are ideally catering to the needs of the parties which is factually incorrect. It is no denying the fact that the diversion of the Ganges Water and the construction of the Farakka Barrage on the river Ganges are the real concerns for Bangladesh, and that the Mahakali Treaty was ratified on September 20, 1996 by the Nepali Parliament, only under foreign pressure. In both the cases the element of duress and unilateralism is manifest.[45] India has constructed a number of barrages quite close its border with Nepal that obstruct the flow of water and inundates land in Nepal. It is quite ironical because usually the upper riparian is responsible for inundating the land in the lower riparian, although in most of the cases the problem is natural, not man-made. In this case, the upper riparian is the affected party thanks mainly to the man-made problems.[46] So when the Bihar Government complains to Nepal each year on the havoc created by the river Bagmati from Nepal in Bihari villages each year, then it can easily be treated as a dual policy by India.[47] The dichotomy is attributable to India’s own poor track-record as an upper riparian state. Similarly, India has a long-standing policy of adhering to bilateral negotiations, presumably because it can best address its own needs vis-à-vis each of its neighbours separately.[48] Robert A Wirsing and Christopher Jasparro aptly argue, “The integrated development approach is Utopian. It is only possible with a paradigm shift in mindset and complete end to hostilities, both physical and psychological.”[49]

Therefore, the only option for India and Pakistan is the continuous accession to the Indus Waters Treaty in letter and spirit. Any deviations and modifications would unleash complications in a tense and hostile environment.
Baglihar is not the only water dispute between Pakistan and India; the two countries have locked their horns on the Wuller Barrage and Kishanganga projects as well. Besides, India envisages constructing many more hydroelectric projects on the western rivers and their tributaries in the Indian Held Kashmir. Salal agreement is the only incident, where an agreement has been reached under the Permanent Indus Water Commission. Again, until very recently, water-related issues were considered to be just peripheral problems. The two countries are yet to settle disputes over Kashmir, Siachin, Sir Creek as well. The rejoice in New Delhi and Islamabad over the Baglihar verdict has made the so-called pacifists to think more ambitiously beyond the water issues about the possibility of a third party mediation. Many in India and Pakistan hope that this unprecedented agreement between India and Pakistan to agree on a third party verdict is an indication that there is a mutual will for conflict resolution. For instance, there is a possibility that given this mutual will to setting a maritime boundary in Sir Creek by the international cut-off date, both India and Pakistan may agree to a UN monitored peace zone in Siachin. India has been sceptical of an outside mediation but, here in case of Baglihar, it has shown amenability. It is also suggested that although Pakistan has suffered relative loss in the Neutral Expert’s Determination on Baglihar, but given sagacity and proper manipulation and astuteness, Pakistan may use Baglihar to make way for third party intervention on Kashmir. It was primarily owing to Indian aversion to third party intervention and the threat of Soviet Veto to stop any move in the UNSC that has already frustrated any attempt in this regard. It is by no means to suggest that India would concede any room on this count even now very easily. However, once the utility of third party is established in amicably resolving the Indo-Pakistan disputes and Indian policy makers start keeping in mind a “Shining India” that is stable inside and is also not bleeding from the outside, that is to emulate the economic power of the more gigantic neighbour China, and an India that envisages and endeavours to break the regional capsule and establish itself as a global power to be reckoned with, then there is no reason to be pessimistic on this count.

Verdict’s Impact on the Hydro-Electric Cooperation at the Regional Level
Any negative development over the findings of the Neutral Expert may have a fall-out on the regional hydro-power cooperation in South Asia, as has been envisaged by SAARC. It is interesting to note that fifty-seven of the multilateral and bilateral water-related treaties (39 per cent) focus on hydropower. Power-generating facilities bring development, and hydropower provides a cheap source of electricity to spur developing economies. Some analysts, however, suggest that the age of building dams will soon end, because of lack of funding for large dams, a general lack of suitable new dam sites, and environmental concerns.[50]
SAARC has had the ambition of creating a power pool since it was created in 1985. In this respect, there are suggestions for using the existing regional frameworks for water cooperation. Cross-border mistrust, particularly between India and its neighbours, has held back progress, but rising demand for electricity has generated more enthusiasm for the project. It is hoped that if the hydro potential of the north-eastern Pakistan, northern India, Nepal and Bhutan could be properly developed, the power supply situation across the entire region can be improved.[51] Indus Waters Treaty is an effective role-model for bilateral arrangements in this regard. At the 25th meeting of the SAARC Council of Ministers in Islamabad in July 2004, it was agreed that an “Energy Ring” or transmission grid would be created. Later, the First SAARC Energy Ministers meeting was held in October 2005 in Islamabad. The meeting recommended to establish SAARC Energy Centre in Islamabad to promote development of energy resources, including hydropower; energy trade in the region; to develop renewable and alternative energy resources; and promote energy efficiency and conservation in the region. Besides, the Heads of State or Government at the 13th SAARC Summit held at Dhaka underlined the need to constitute a South Asian Energy Dialogue process, involving officials, experts, academics, environmentalists and NGOs, to recommend measures to tap potentials of cooperation in energy sector, and to provide inputs to the Working Group on Energy. All these pious intentions could only be translated into action if the member countries show greater will and far-sightedness in pooling and collective utilisation of their resources. However, the experience of SAARC has not been successful so far, since it, in itself, requires the building of mutual trust among the South Asian states. Political leaders in South Asian countries have to be convinced of the potential benefits accruing from such cooperation. Indian hegemonic attitude towards other South Asian states needs to be radically redirected into a more cooperative one. In fact, the weight of historic evidence tends to favour water as a catalyst for cooperation: organised political bodies have signed 3,600 water-related treaties since AD 805, versus only seven minor international water-related skirmishes (each of which included other non-water issues). The only water-related war between states on record occurred about 4,500 years ago. Therefore, it is high time, India and Pakistan should realise that cooperation on the water related issues is a sine qua non, and a relatively easy issue to be tackled thereby as a trendsetter.[52]

Baglihar Ruling and the Kishanganga Project
Pakistan’s main objection to the 330-megawatt Kishanganga hydro-power project, being carried out by India on the river Jehlum, is that the 21 kilometers long canal that involves the diversion of the waters of a tributary of the river is in contravention of the provision of the Indus Waters Treaty. According to the Indian plan, Kishanganga water is to be diverted to a tunnel to Bandipore, where it will join the Wuller Lake, and then the Jehlum River. According to Pakistan’s Indus Waters Commissioner, Jamaat Ali Shah, Pakistan has reservations about the design of the dam because it would affect Pakistan’s own plan of a power station on the Jehlum river. The Baglihar verdict has something in store for the parties on the Kishanganga count as well. In the first place, the Indian side’s readiness to respond to the Pakistani request of setting a timeframe for dialogue is a marked diversion from its practice of dragging the negotiations to the point of no return during the parleys on Baglihar. Again, there is no reason to be totally pessimistic about the failure of India and Pakistan to reach an agreement on the technical issues involved in the matter. The parties have failed to define the very nature of their mutual differences on the project i.e. whether Pakistani objections should be treated as “questions” that can easily grow into “differences” and be taken up for arbitration, or they are mere “objections” i.e. a step before arbitration.[53] Jamaat Ali Shah, Pakistani Indus Waters Commissioner, said after the recently inconclusive meeting on Kishanganga with his Indian counterpart: “Both sides have agreed that the issue should be resolved at the Commissioners’ level and third party mediation must be avoided. It reflects sincerity of purpose on both sides.”[54] Again the Indian side has already altered the design of the dam on Pakistani objections in this regard and has made it a run of the river project.[55]

Conclusion
If India continued to talk of exercising control over the waters of the western rivers that are vital to Pakistan’s very existence, then, it may prove to be a great irritant in the India-Pakistan peace process and the Composite Dialogue Process. Certainly, the crisis has all the potential to derail the peace process if sanity did not prevail. Even it can take the two countries to the brink of total hostility as well. However, in all likelihood, mutual mistrust on the water-related issues would continue. Pakistan would use all the channels, bilateral as well as multilateral, in order to frustrate Indian designs of exploiting the Neutral Expert’s Determination in its favour. India will, no doubt, refer to and use the Verdict as a lever in its future diplomatic maneuvering vis-à-vis Pakistan, but it would not use it at the expense of the normalisation process with Pakistan and regional peace and harmony which would pay more dividends to India than any country in the region in the longer run.[56] Secondly, India has to court Pakistan in order to meet its ever increasing energy demands. Pakistan, being the potential energy corridor, can provide the most economical route for the supply of gas through pipelines to India and beyond from Central and West Asia.[57] Thirdly, as discussed earlier, the weight of historic evidence tends to favour water as a catalyst for cooperation rather than confrontation. Some compromised formula or boundary line would thereby be evolved whereby Pakistan would consider recourse to third party mediation as a futile and expensive exercise. India would forego the room offered to it by the Neutral Expert’s Determination. Towards that end, the World Bank would have to guarantee the safety of Pakistan’s interests not only on the question of Baglihar but on all of the aforementioned hydropower projects on Western Rivers in letter and spirit of Indus Waters Treaty.
The issue of distribution of water between Pakistan and India is of inescapable nature; so only farsightedness, on the part of the protagonists, can lead to a lasting solution of the problem in the longer run. Pending this, the prospects of future cooperation between the two states on other political issues i.e. Siachin Glacier and Kashmir issue etc. would be dampened. Failure on this count would definitely take a toll on the peace process and the prosperity of the peoples of the region who are languishing in abject poverty, illiteracy, terrorism, human trafficking and other social, political and economic menaces. This vicious cycle of depleting resources, spawning unemployment and fuelling extremism in both the countries is feared to intensify in the near future in the absence of any consensus on the use and distribution of water resources. In a nutshell, progress on Baglihar and other water issues is a test case for future cooperation between India and Pakistan on wide-ranging issues, particularly in the wake of much touted rhetoric at the conclusion of 14th SAARC Summit.

[1] The very inking of the Indus Waters Treaty 1960 is a manifestation that Pakistan faced a virtual disaster in the face of Indian attempts to stop the waters of the rivers flowing into Pakistan thereby violating one of the basic recommendations made by the Madrid Declaration 1911 regarding the use of international watercourses for purposes other than navigation. These discourage basin alterations and harmful modifications of the international rivers. The tensions between India and Nepal over the Mahakali Treaty and the latter’s discontent over the inequitable water distribution, and Bangladeshi misgivings over the Farakka Barrage in India, just 15 kms upstream from the border with Bangladesh are also embedded in the similar perceptions of the respective countries. See Asma Yaqoob, “International River Waters in South Asia: Source of Conflict or Cooperation?”, Regional Studies, vol. XXII, no. 4, Autumn 2004, 119-125.
[2] G.T Keith Pitman, “The Role of the World Bank in Enhancing Cooperation and Resolving Conflicts on International Watercourses: The Case of the Indus Basin” (World Bank Technical Papers no. 414, Washington D.C. 1998). According to the writer India halted water to some of the Pakistani canals at the start of the summer irrigation season. The point is, had it not for the inter-dominion agreement or the Indus Waters Treaty, India would have done this again as well.
Dipak Gayali and Ajaya Dixit say (in “How Not to Do a South Asian Treaty,” Himalayan Magazine, vol. 14, April 2001) that in December 1991, India compelled Nepal to sign an MOU, which allowed India the 577 m of Nepalese territory required for the Tanakpur Barrage in exchange for 10 million units of electricity and 150 cusecs water for irrigation.
[3] Farzana Noishab and Nadia Mushtaq, “Water Disputes in South Asia”, Strategic Studies, vol. XXI, no. 3, Autumn 2001.
[4] M Munir, Member of the Boundary Commission, quoted in G W Choudhury, Pakistan’s Relations with India 1947-1966, Pall Mall Press, London, 1968. p. 55. According to him, Lord Mountbatten exploited his position to modify the Award of the Radcliffe Boundary Commission in the Punjab to give two Muslim sub-divisions (Tehsils) of Gurdaspur District to India. By virtue of this, not only a corridor was provided to India to have an inland access to the state of Jammu and Kashmir, but also the two vital headworks were given to India.
[5] By that time the rights and obligations of the lower and upper riparian states were governed by the guidelines or recommendations made by the Madrid Declaration 1911, regarding the use of international watercourses for purposes other than navigation. These discourage basin alterations and harmful modifications of the international rivers. However later the International Law Association developed the Helsinki Rules of 1966 on the Uses of the Waters of International Rivers. The Helsinki Rules outlined principles related to the “equitable distribution” of shared watercourses and commitment not to cause “substantial injury” to co-riparian states.
See: Meredith A. Giordono and Aaron T. Wolf, “The World’s International Freshwater Agreements”, http://www.transboundarywater.orst.edu/publications/atlas/atlas_html/foreword/international/agreements.html.
[6] Alok Kumar Gupta, “Baglihar Project: Another Bone of Contention” Article No. 1619, Institute of Peace and Conflict Studies, New Delhi, January 20, 2005, http://www.ipcs.org/whatsNewArticle2.jsp?action=showView&kValue=1619&status=article&mod=b.
[7] Record. Ministry of Foreign Affairs Pakistan. Dy. No. 569 KA (I), April 2, 2007.
[8] “Baglihar Hydroelectric Project: Delhi proposes dates for inspection”. Dawn, (Islamabad), October 6, 2003.
[9] “New Delhi to take appropriate action if Pakistan approaches WB over Baglihar Dam,” January 11 2005, http://in.news.yahoo.com/050111/139/2iyh4.html.
[10] R.G Wirsing and C. Jasparro, “Spotlight on Indus River Diplomacy: India, Pakistan, and the Baglihar Dam Dispute,” Asia-Pacific Center for Security Studies, May 2006, 4.

[11] Record: Ministry of Foreign Affairs Pakistan. Dy. No. 569 KA (I), April 2, 2007.
[12] “Verdict on Baglihar dam controversy on Feb 12”. Dawn, (Islamabad), January 30, 2007.
[13] Executive Summary of the Expert Determination on Baglihar Hydroelectric Project; Lausanne, February 12, 2007.
[14] Ibid.
[15] “Verdict on Baglihar dam”. Dawn (Islamabad), February 12, 2007.
[16] “Breakthrough on Baglihar?” The Hindu, (Delhi), February 14, 2007.
[17] Indus Water Commissioner, Jamaaat Ali Shah speaking in PTV Programme “Black and White” April 28, 2007.
[18] Adnan Adil, “A win-win verdict” The News, Islamabad.March 4, 2007.
[19] Ijaz Hussain, “Not treated according to the treaty”. Daily Times (Lahore), February 28, 2007.
[20] Ijaz Hussain, “Can Pakistan challenge Baglihar Verdict?” Daily Times (Lahore), March 14, 2007.
[21] “Pakistan may Move Court of Arbitration”: The Tribune (Chandigarh), February 15, 2007.
[22] Ministry of Foreign Affairs, Pakistan. Dy No. 569 KA (I), April 2, 2007.
[23] “India to tell Pakistan; Expert’s is way out for stalled river projects” The Indian Express (New Delhi), February 14, 2007.
[24] “J & K Can Plug Into More Power As Neutral Expert Clears Baglihar Dam” The Indian Express (New Delhi), February 12, 2007. Indian Union Minister, Saifudin Soz welcoming the verdict said that the modifications will marginally add to the costs, and that the award by the Neutral Expert would deeply influence all future interpretations of the Treaty between the two countries.
[25] “Baglihar, World Bank and appointment of neutral expert” Daily Times (Lahore), February 10, 2005.
[26] The CIA World Fact book. (2006),
http://www.cia.gov/cia/publications/factbook/geos/pk.html. The page was last updated on 17 April, 2007, and was accessed on 30 April 2007.
[27] Asma Yaqoob, “International River Waters in South Asia: Source of Conflict or Cooperation?”, Regional Studies, vol. XXII, no. 4, Autumn 2004, 138.
[28] “Pakistan Issues Warning after India Releases Water into Chenab”: China Daily http://www.chinadaily.com.cn/english/doc/2005-07/08/content_458432.htm.
Although India had issued information to Pakistan on the release, yet had there been no reservoir, there would have been no need to discharge the huge volume of water; Hence the greater number of such reservoirs in the Indian Held Kashmir, the more would it be potentially disastrous for Pakistan.
[29] Seema Sridhar, “The Baglihar Verdict: Brighter Days Ahead for J&K?”
She holds that Pakistan’s persistent objections to these projects are a combination of the natural concerns of a lower riparian as well as political maneuverings of an interested party in the conflict in J&K. India holds Pakistan as the main culprit for the inadequate power generating infrastructure in the state. While this view does reverberate the reality of Pakistan delaying large projects in the state, alternative ways of addressing the crisis could have been given due importance by India in the meantime. http://www.sspconline.org/article_details.asp?artid=art116.
[30] Seema Sridhar, “The Baglihar Verdict: Brighter Days Ahead for J&K?”, http://www.sspconline.org/article_details.asp?artid=art116.
[31] R. G. Wirsing & C. Jasparro, “Spotlight on Indus River Diplomacy: India, Pakistan, and the Baglihar Dam Dispute,” Asia-Pacific Center for Security Studies, May 2006.
[32] Asma Yaqoob, op. cit., 139.

[33] “Baglihar Dam to Submerge Doda: Gillani” The Pakistan Tribune (Online), January 11, 2005, http://www.paktribune.com/news/index.shtml?90057.
[34] “Pakistan toying with Chenab Formula,” The Tribune, www.tribuneindia.com/2001/20010623/world.htm#1.
See also R.G. Wirsing & C. Jasparro, “Spotlight on Indus River Diplomacy: India, Pakistan, and the Baglihar Dam Dispute,” Asia-Pacific Center for Security Studies, May 2006. According to the paper, the Dixon Plan assigned Laddakh to India, the Gilgit-Baltistan and Azad Kashmir to Pakistan, split Jammu between the two and envisaged a plebiscite in the Valley. The proposal though accepted by Pakistan, was rejected by India.
[35] Ibid.
[36] C. Raja Mohan “Beyond India’s Monroe Doctrine,” The Hindu, January 2, 2003. The author says that the concept of Indian Monroe Doctrine is not new. None other than Nehru himself propounded it. Indira Gandhi reincarnated it with “Indira Doctrine”. It implies that Indian Subcontinent is India's exclusive sphere of influence and New Delhi must strive to prevent the intervention of great powers in the affairs of the region. These are ideas that have long animated the nation's foreign policy. However, the writer believes that these ideas are outmoded now.
[37] Kuldip Nayar, “Natwar’s Pride, Neighbour’s Agony,” Deccan Herald (Bangalore), August 31, 2005.
[38] B. G. Verghese, “It’s time for Indus-II,” The Tribune (Chandigarh), May 25, 2005.
[39] “India offers to share Baglihar and Kishanganga's electricity”, Daily Times (Lahore), June 15, 2005.
[40] Ramaswamy R. Iyer “Water in South Asia: A Tour d’ Horizon,” www.cprindia.org/admn/paper/pdf.
[41] Sardar Mohamamd Tariq, “Indus Waters Treaty 1960 and Emerging Water Management issues for Pakistan” in Pervaiz Iqbal Cheema, Rashid Ahmad Khan and Ahmad Rashid Malik (eds.), Problems and Politics of Water Sharing and Management in Pakistan, (Islamabad: Islamabad Policy Research Institute, 2007).

[42] Ramaswamy R. Iyer, op. cit.
[43] Shumaila Zeveqar, “The Baglihar Issue”: The Post (Islamabad), March 10, 2007.
[44] Sardar Mohamamd Tariq, op. cit.
[45] Farzana Noishab and Nadia Mushtaq, op. cit.
See also Asma Yaqoob, “International River Waters in South Asia: Source of Conflict or Cooperation?”, Regional Studies, Volume XXII, No.4, Autumn 2004, p.119 - 125
[46] The author’s conversation with a Nepali Diplomat.
[47] “South Asia flood death toll rises” BBC Report, 7 August 2007, http://news.bbc.co.uk/2/hi/south_asia/6932636.stm.
[48] Jesse H. Hamner and Aaron T. Wolf, Colorado Journal of International Environmental Law and Policy - 1997 Yearbook, 1998.
[49] R.G. Wirsing & C. Jasparro, op. cit.
[50] Jesse H. Hamner and Aaron T. Wolf, op. cit.
[51] Neil Ford, “Baglihar threatens Indus deal”: International Water Power, September 12, 2006. http://www.waterpowermagazine.com/story.asp?storyCode=2042877 (Accessed on 15 May, 2007)
[52] Jesse H. Hamner and Aaron T. Wolf, op. cit.
[53] The distinction is important in that the disagreements between the parties on the interpretation of the provisions of the Indus Waters Treaty are classified into three categories: questions are examined by the Permanent Indus Commission; differences by a Neutral Expert; and disputes by a Court of Arbitration.
[54] Ahmad Fraz Khan, “Pakistan, India fail to bridge differences,” Dawn (Islamabad), June 3, 2008.
[55] Ibid.
[56] Faruk Ashrafeen, “Budge on Baglihar too,” The Post (Islamabad), May 17, 2006. Indian Prime Minister Manmohan Singh, while launching Jagat Mehta’s book, Negotiating for India: Resolving Problems through Diplomacy, reportedly expressed the fear that unresolved disputes with the neighbours could invite foreign intervention and asked his diplomats to pay more attention to negotiated settlements.
[57] Maqbool Ahmad Bhatty, “Energy, Water issues in South Asia” Dawn (Islamabad), February 26, 2007.

AMER RIZWAN

Monday, November 9, 2009

Group Photo in the Foreign Office Lobby

Sunday, November 1, 2009

AMER RIZWAN

Kahuta Convocation Picture

LEST WE FORGET

WORLD BANK MEDIATION ON BAGLIHAR DAM: IMPLICATIONS FOR INDIA PAKISTAN RELATIONS

My Blog List

Blog Archive

About Me

Give your comments about the ongoing war on terror.