Baglihar: the points at issue

The specific points of difference relate to the design of the Project, the extent of pondage, and the placement of the spillway gates and the water intake.

Ramaswamy R. Iyer

RAYMOND LAFITTE, the Neutral Expert to whom the differences between India and Pakistan over the Baglihar Project stand referred, recently made a site-visit. This has once again brought the issue into prominence.

Baglihar is a "run of the river" hydro-electric project on the Chenab, one of the three western rivers allocated to Pakistan under the Indus Waters Treaty 1960. The Treaty lays down certain parameters and conditions to which such projects must conform: (i) no Indian storage on the western rivers (except to a limited extent); (ii) design of project not to be such as to enable the water level to be raised above the Full Pondage Level; (iii) the "pondage" not to exceed twice the pondage required for "firm power"; (iv) if gated spillways are considered necessary, the gates to be located at the highest level consistent with sound and economical design and satisfactory construction and operation; (v) the water intake for the power plant to be similarly located at a high level; and (vi) no outlets below the dead storage level, unless certain technical considerations necessitate this.

Leaving aside the various points that came up during the course of the discussions at the meetings of the Indus Commission, the specific points of difference over Baglihar relate to (a) the design of the Project; (b) the extent of pondage; and (c) the placement of the spillway gates and the water intake. Pakistan feels that the "free board," that is, the space between the maximum water level and the top of the dam, is excessive and will enable India to store more water than the full pondage level. India says that the free board is a standard safety feature, and that using it to store more water would compromise the safety of the structure and cannot be done. Pakistan argues that the planned pondage of 37.7 mcm is more than what the Treaty permits. India says that its calculation of the pondage required is correct. (The difference here arises from different understandings of "firm power.") Pakistan says that the placements of the spillway gates and of the water intake do not conform to the Treaty provisions. India justifies the placements on certain technical grounds that need not be gone into here.

On all these points, Prof. Lafitte will give findings in due course, and these will be final and binding. Why do such differences arise?

The answer lies in a fundamental divergence of perceptions and motivations. India is inclined to interpret the Treaty provisions broadly, with greater attention to the spirit than to the letter; and in formulating projects India attaches a great deal of importance to technical soundness, economic viability, and satisfactory operation. Pakistan, on the other hand, is primarily concerned with safeguarding its own interests, and tends to insist on a stringent and literal interpretation of the Treaty. The Indian concern with techno-economic or operational considerations does not carry much weight with Pakistan.

Was India wrong in starting construction in this case without waiting for Pakistan's agreement? That is the Pakistani view. The Indian reply is that the Treaty does not specifically say that construction should not start without Pakistan's clearance; that if Pakistan's concurrence is held to be necessary for the start of work, it can use the power of raising objections and rejecting the answers given to stall a project indefinitely; and that this was what happened in the case of the Tulbul Project.

Are there deeper concerns underlying the technical differences? Indeed there are. Pakistan is worried about the control that India acquires through structures on the rivers allocated to Pakistan and the possibility of that control being used to harm Pakistan (withholding of water, flooding). India says that such fears are unwarranted as India cannot inflict damage on Pakistan without first inflicting damage on itself.

Some commentators say that given the history of bad relations between the two countries, Pakistan distrusts India and has deep security concerns; and others argue that any lower riparian is bound to have visceral anxieties vis-�-vis the upper riparian. The answers to those concerns and anxieties cannot be found in the Treaty: they have to be looked for in the political sphere. The Neutral Expert is concerned only with questions of conformity to the Treaty.

There is in fact a strong political element in the difficulties that have arisen in the Baglihar and other cases under the Indus Treaty.

All the Indian projects on the Jhelum and Chenab are in Jammu and Kashmir. In other words, behind Baglihar and other differences under the Indus Treaty lurks the Kashmir issue.

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