Ramaswamy R. Iyer

On the whole, India has reason to be somewhat more satisfied than Pakistan with the neutral expert's findings, as the project per se stands vindicated, and the changes suggested are relatively minor.

THERE HAD been persistent differences between Pakistan and India over the Baglihar Hydroelectric Project on the Chenab. Pakistan had felt that the project did not conform to the fairly stringent technical conditions and restrictions laid down for Indian hydroelectric projects on the western rivers that stood allocated to Pakistan under the Indus Waters Treaty 1960, and was therefore in violation of the Treaty. The points of difference formulated by it were referred in 2005 to a neutral expert under the Arbitration Clause of the Treaty. After 20 months of proceedings, Professor Raymond Lafitte, the neutral expert, has given his findings on those points of difference.

The relevant Treaty provisions are the following:

(i) The waters of the western rivers must flow to Pakistan. Daily variations in flows within a range (50 per cent to 130 per cent) are permitted, but only within a seven-day period; the necessary adjustments must be made within that period.

(ii) India cannot create any storage on the western rivers (except to a limited extent as specified in the Annexures to the Treaty).

(iii) While `storage' is not allowed, `pondage' is permitted. This refers to the limited quantum of water that can be held behind the dam for operational purposes. The `pondage' must not exceed twice the pondage required for `firm power' as defined in the Treaty.

(iv) The design of the project must not be such as to enable India to raise artificially the water level in the Operating Pool above the Full Pondage Level.

(v) If gated spillways are considered necessary in the conditions obtaining at the site, the bottom of the gates shall be located at the highest level consistent with sound and economical design and satisfactory construction and operation.

(vi) Similarly, the water intake for the power plant shall be located at the highest level consistent with satisfactory and economical construction and operation.

(vii) There shall be no outlets below the dead storage level (DSL), unless sediment control or other technical considerations necessitate this.

The features of the Baglihar Project as proposed by India were as follows:

Power plant capacity: 450 MW.

Top of the dam: 844.5 metres (m) above mean sea level.

Maximum Water Level (MWL): 840 m above msl.

Free board (the space between MWL and the top of the dam): 4.5 m.

Dead Storage Level, i.e., the level below which the water would not be used for operational purposes): 835 m.

Operating Pool: the water between MWL and DSL (5 metres).

Pondage (water that would be held in the Operating Pool for operations): 37.7 million cubic metres.

Maximum flood for which project is designed: 16500 cumec (cubic metres per second).

Placement of water intake for the power plant: at 818 m.

Number of gated spillways: 6 (offered to be reduced to 5).

Placement of the bottom of the spillway gates: at 808 m.

Pakistan had several objections to the design of the Baglihar project. It questioned the assumption of 16500 cumec as the probable maximum flood (PMF) in the river; it argued that gated spillways were not necessary; it felt that the `free board' (as defined above) did not have to be 4.5 m, that 1.5 m would be adequate, and that the excessive free board would enable India to raise artificially the water level in the Operating Pool above the Full Pondage Level. India's position was that the PMF was correct; that in the given site conditions gated spillways were necessary; that the free board was a standard safety feature, which could not be used to store more water without endangering the safety of the structure; and that a free board of 4.5 m was the bare minimum.

Secondly, in Pakistan's view, the planned pondage of 37.7 mcm was excessive. It argued for a pondage of no more than 6.22 mcm. India maintained that its calculation of the pondage required was correct. (The difference on this point arises from different understandings of `pondage' and `firm power', which we need not go into here.)

Thirdly, Pakistan felt that the placement of the spillway gates and that of the water intake were not at the highest possible positions as required by the Treaty. It also pointed out that the Treaty prohibition of outlets below the DSL was violated. India drew attention to the provisos in the Treaty regarding sound and economical design and satisfactory construction and operation, and justified the placements in a two-step argument. First, the position of the water intake had to be such that there was an adequate body of water (`water seal') above it to prevent the formation of swirls or vortices which might draw air into the power plant as the water was taken in; and secondly, once the position of the water intake was settled, the bottoms of the spillway gates had to be well below that level to ensure that silt would go through the spillways and not into the water-intake. Pakistan did not accept this argument; it contended that there were other ways of dealing with silt and with vortex-formation. India felt that the alternatives suggested by Pakistan were unsatisfactory second-best arrangements that might not work properly, and maintained that it had gone by standard practice.

The neutral expert's findings on these points are explained below:

(i) He has gone into the Pakistani and Indian figures of PMF and has considered it prudent to accept the Indian figure of 16500 cumec.

(ii) He has not accepted Pakistan's position that gated spillways are not necessary. He points out that for a PMF of 16500 cumec, the standard modern practice would be to provide gated spillways. He has drawn attention to the recognition by the Treaty of the importance of sound and economical design and satisfactory construction and operation, and has argued that the Treaty does not preclude India from using state-of-the-art technology.

(iii) He has not accepted Pakistan's contention that the bottoms of the spillway gates are not at the highest possible level. He points out that the sluice spillways as designed by India in this case serve two purposes, namely, sediment control and the evacuation of the design flood. On these considerations, and in accordance with international practice and the state-of-the-art, he finds the placement of the spillway gates acceptable. (In fact, he feels that they should be 8 m lower.) He has recognised the need for annual drawdown sluicing for proper reservoir maintenance. As for the placement of these outlets below the dead storage level, he has pointed out that while the portion below the DSL cannot be used for operational purposes (i.e., for power-generation), there is no prohibition of its use for maintenance purposes. He has stressed that maintenance is an absolute necessity.

(iv) He has accepted neither the Indian justification of a free board of 4.5 m nor the Pakistani proposal of 1.5 m. He has recommended a free board of 3 m (i.e., a reduction of dam height by 1.5 m; India had, in fact, volunteered a reduction of 1 m.)

(v) He has not accepted the Pakistani calculation of a pondage of 6.22 mcm, but has found the Indian design of 37.7 mcm excessive, and has suggested a reduction to 32.5 mcm. Correspondingly, he has proposed that the DSL be raised by 1 m.

(vi) He has partially accepted the Pakistani objection that the water intake for the power plant is not as high as possible, and has suggested that it be raised by 3 m. He has stated that certain steps can be taken to take care of the vortex problem.

On the whole, India has reason to be somewhat more satisfied than Pakistan with these findings, as the project per se stands vindicated, and the changes suggested are relatively minor.

The `differences' over Baglihar now stand resolved by the neutral expert's findings. What follows? Is it possible for the case to go to a Court of Arbitration now? On the `differences' referred to the neutral expert, his findings are final and binding, and cannot be referred to a Court of Arbitration. In terms of the Treaty, only a `dispute' can be referred to a Court of Arbitration. It follows that if Pakistan wishes to invoke a Court of Arbitration, it will have to formulate a `dispute' afresh. One must hope that this will not happen, but if it does, the technical determinations of the neutral expert will be binding even on the Court of Arbitration.