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Thursday, Jun 09, 2005

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Opinion - Leader Page Articles

Baglihar, Neutral Expert and `differences'

Ramaswamy R. Iyer

Pakistan's concerns in the Baglihar project are only partly over water-sharing; they are more over security aspects.

PROFESSOR RAYMOND Lafitte, Neutral Expert (NE) appointed under the arbitration provisions of the Indus Treaty to deal with certain differences that have arisen over the Baglihar power project on the Chenab River, has asked India and Pakistan to meet him in Paris on June 9 and 10. This will be his first meeting or hearing. The arbitration clause is operating for the first time in the 45-year history of the Treaty. The procedures adopted and the outcome may be of great importance for future cases. There is, in fact, another case — the differences over the Kishenganga project on the Jhelum — that seems headed for reference to a Neutral Expert. It is therefore necessary to know exactly what is going on in the Baglihar case.

First, the Baglihar issue is not a water-sharing dispute. There is no water-sharing dispute between the two countries at present. The Indus Waters Treaty settled that dispute in 1960. (How good and fair the settlement was is a question that we need not go into here.) The Baglihar issue is one of technical disagreements between the two countries over certain features of the project, under the provisions of the Treaty. The Treaty foresees the possibility of such disagreements and provides a mechanism for resolving them.

In broad terms, the Treaty divided the Indus system into two segments, the eastern rivers (Ravi, Beas and Sutlej) and the western rivers (Indus, Jhelum and Chenab), and allocated the former to India and the latter to Pakistan. While allocating the western rivers to Pakistan, it did allow India some limited use of them, including `run of the river' hydro-electric schemes, subject to certain conditions and parameters. (The term `run of the river' means the project does not involve any `storage.' India is not allowed to build storages on the western rivers except to a very limited extent.)

Levels of resolution

If India wants to build a project on the western rivers, it will have to give Pakistan the plan and designs in advance to enable that country to satisfy itself that these are in conformity with the Treaty conditions. Pakistan is given an opportunity to raise questions. That is how differences arise. In one such case, the Salal Hydro-Electric Project, the issues got resolved between the governments of the two countries. In other cases (Tulbul or Wular, Baglihar, Kishenganga) the points at issue have remained unresolved.

Such `questions' can be resolved within the Indus Commission (a joint body set up by the Treaty). Failing an agreement at that level, the matter can get resolved at the governmental level (as in the Salal case). If the `question' does not get resolved at the inter-governmental level, it becomes a `difference' to be referred to a Neutral Expert (as has been done in the Baglihar case). The NE's findings will be final and binding on both the parties. If the NE feels that the points referred to him are beyond his purview or that there is a `dispute,' the matter will have to go to a Court of Arbitration. In the Baglihar case, we are at the `difference' stage, and one hopes we will not reach the `dispute' stage.

Secondly, while it is true that this is the first time the arbitration clause of the Treaty is being invoked, there is no need to despair. What is taking place is action under the Treaty. The Treaty continues to work; it has not broken down. If the two sides are in a logjam over certain differences, it is perhaps better to resolve them by going to an NE. (The Tulbul Project has remained stalled for 15 years.)

The third point is the nature of the `difference.' The question is not about the need for the project, its precise location, the height of the dam (144.5 metres), the planned capacity of the project (450 MW), and so on; the Treaty has nothing to say about such things. Pakistan may have reservations about some of these matters, but the question it can raise is only about conformity to the Treaty provisions. The main Treaty and several annexures and appendices lay down the conditions and parameters to which Indian projects on the western rivers must conform. These include matters such as the calculation of `firm power,' the extent of `pondage,' prohibition of raising artificially the water level in the Operating Pool above the full pondage level, permitted range for daily variations in water flows below the structure (within the weekly flow), placement of the crest of the spillway gates (if a gated spillway is considered necessary), and water-intake for the plant. Differences can arise, and have arisen, over the conformity of the Indian design to these specific stipulations in the Treaty. The differences have now been referred to the NE in a statement of three points.

Role of the Neutral Expert

What is the role of the NE? He has to answer the specific questions posed to him. These three questions take the form of statements to the effect that in Pakistan's view feature x or y or z does not conform to the conditions laid down in a particular clause of the Treaty or one of its annexures or appendices, and that India does not agree with that view. The NE has to answer these questions `yes' or `no', in terms of the provisions of the Treaty. The procedures are for him to determine, but he must give equal hearing to both sides. The NE is not expected to make sweeping judgments about the project or propose alternatives. But at the request of the parties, he can suggest measures `to compose a difference or to implement his decision'. The NE can also take the view that the matters referred to him are not within his purview or that the differences amount to a `dispute', in which case recourse to a Court of Arbitration may follow.

Underlying the technical disagreements, there may be deeper issues and concerns on the part of Pakistan. It is worried about the powers of control that any structure on the western rivers may give the upper riparian. It is apprehensive of the possibilities of a reduction of flows or alternatively of flooding. It is anxious about the possible use of the waters as a weapon of war. Pakistan's concerns are thus only partly over water-sharing; they are more over security aspects. It would be happier if no Indian control structures existed on the western rivers. However, it can raise questions only in terms of the Treaty provisions (though it can use that power to stall Indian projects). Further, the fact that the Jhelum and the Chenab flow through Jammu and Kashmir and that the benefits of Indian projects on those rivers will flow to the people of the State under Indian auspices adds political dimensions to the differences and makes them even more complex and difficult.

Needless to say, the NE is not concerned with these aspects. He is concerned only with the question of conformity to the Treaty and is bound by its provisions.

What are the possible outcomes of this process? One can only speculate. The NE's findings could conceivably be in favour of Pakistan on all points; or in favour of the Indian position on all of them; or in favour of the Pakistani view on some and the Indian view on others; or he could say there is a `dispute'.

There is also presumably the possibility of the two sides agreeing on a compromise and submitting it to the NE. We have to wait and see. The process promises to be interesting.

Governments are often blamed for incomplete `homework,' and inadequate preparations for important negotiations. It gives one great pleasure to say (on the basis of direct personal knowledge) that in this case the Union Ministry of Water Resources has done an excellent job of preparing itself for the Paris meeting.

(The writer is former Secretary, Water Resources, Government of India.)

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