THE Indian Prime Minister, Manmohan Singh, has as a gesture of goodwill, offered to settle the differences between India and Pakistan in respect of the Baglihar Hydro Electric Project on bilateral basis. He further stated that if the design of the project was found in violation of the Indus Waters Treaty 1960, it would be changed.
Now, given the fact that the Permanent Indus Commission set up under the Indus Waters Treaty in 1960 has failed in resolving the differences between the two countries since many years, it is hardly possible that any brief or summery put up to the Indian Prime Minister by bureaucrats or technocrats concerned would concede that the project design is in violation of the Treaty.
The Pakistani Commissioner and his Advisers are asserting that the design violates the provisions of the Treaty but India denies it.
A couple of years back the Commissioner from Pakistan reached the conclusion that the Commission could not resolve the questions concerning interpretation of the Treaty relating to alleged breaches in terms of Para (1) of Article IX. The Pakistani Commissioner, therefore, notified his Indian counterpart of his intention to ask for an appointment of a neutral expert indicating the Paragraphs of Part 1 of Annexure F of the Indus Waters Treaty 1960 under which the differences fell and a statement of the points of difference between the Commissioners was forwarded by him.
As the two could not prepare a joint statement of the points of difference in terms of Part 2 of Annexure F of the Treaty, the Pakistani Commissioner approached the World Bank for appointment of a neutral expert. The process was delayed for a long time in order to give chance to the Indian offer to resolve the differences bilaterally without an expert. Inspite of a number of meetings outside the mechanism of Article IX of the Treaty, the differences could not be resolved.
Under the circumstances, it would be futile to expect that another effort by the Pakistani Commissioner to convince the Indian side would bear any fruit.
Since the Baglihar Project is being constructed for hydro electric power in terms of the Annexure D of the Treaty, therefore, India cannot have any active water storage. It is entitled to specified amount water on three western rivers in terms of the Annexure E. The Project has, therefore, to conform to design criteria mentioned in Part 3 of the Annexure D.
Before considering the existing design of the project, its main scheme may briefly be noted. Under the Treaty, Pakistan had to forgo its rights as lower riparian to about 23 million acre-feet of water flowing previously to it from three eastern rivers i.e., Sutlej, Beas and Ravi so that it “shall receive for unrestricted use all those waters of the western rivers which India is under obligation to let flow—”. Article III Paragraph (2) of the Treaty reads as follows: -
“India shall be under obligation to let flow all the waters of western rivers, and shall not permit any interference with these waters” except for the uses enumerated which includes, generation of hydro electric power as set out in Annexure D.
It is thus patent that the uses of waters of the Western Rivers by India have to be strictly in conformity with the provisions of the Treaty. The provisions have to be interpreted in a strict manner to prevent the infringement of the fundamental right of Pakistan to receive unrestricted use all the waters of western rivers in exchange of which it had to forgo its rights to waters of three eastern rivers as lower riparian.
The main criteria laid down in Annexure D of the Treaty, which the project design violates are related to the gated structure of the spillway, the level of the gates and the level of intakes for turbines.
The main rule laid down in Annexure D relating to the design of such projects is that “there shall be no outlets below the Dead Storage Level”. Exception to the rule is possible only if it is “necessary for sediment control or any other technical purposes”. The word “necessary” cannot be read as “desirable” or “preferable”.
The second rule is that such outlets, if necessary, “shall be of the minimum size, and located at the highest level, consistent with sound and economical design and with satisfactory operation of the works”. It is further clarified in the Annexure D that the word “necessary” has to be interpreted in terms of the conditions at the site of the plant”. It is also provided that where the “conditions at the site of a plant make a gated spillway necessary, the bottom level of the gates in normal closed position shall be located at the highest level consistent with sound and economical design and satisfactory construction and operation of the works”.
The Indian Commissioner and his advisers have been interpreting the terms “necessary” and “consistent with sound and economical design and with satisfactory operation of the works” so liberally as to completely defeat the objective of the prescribed rules.
The large submerged gates, without their necessity having been established, in the existing design which can stop the flow of waters in the river for 29 days if closed after opening, would definitely threaten infringement of Pakistan’s right to receive for unrestricted use of the waters of the river in terms of the Indus Waters Treaty 1960.
The location of the intakes for the turbines not having been designed at the highest level in terms of the criteria laid down in Annexure D of the Treaty can too produce active storage of water, which is not permissible in the case of projects constructed under Annexure D of the Treaty. This would amount to interfering with the flow of waters in the River in violation of the letter and spirit of the Treaty.
In case the submerged gates of the spillway are eliminated or reduced in size and located at a higher level acceptable to both sides, a possible settlement of differences between the two sides can still be reached on bilateral basis.
Similarly, the location of intakes of the turbines would have to be raised to a higher level acceptable to both the parties. With the years of procrastination, the only hope is that the Indian side would propose a significant modification of the design on these lines to restart the bilateral mechanism for resolution of the differences.
Any other initiative from the Indian side would probably be understood as another effort to delay the appointment of a neutral expert by the World Bank and ensure a fait accompli.
