May 2005 News

New Twist To Baglihar Dispute

16 May 2005
The Daily Excelsior
Subhashis Mittra

Jammu: Giving a new dimension to the India-Pakistan diplomacy, the World Bank has said it would appoint a 'neutral expert' to examine differences between the two countries over the vexed issue of Baglihar hydro-power project on the Chenab river in Jammu and Kashmir. The World Bank's decision is being viewed as a setback to negotiations on the issue as New Delhi has assured Islamabad that India would look into Pakistan's concerns about Baglihar. Under the terms of Indus Water Treaty, the neutral expert was to be appointed by the two countries after mutual consultation or by a third party agreed upon by the two countries. In the absence of such an agrement, the appointment of a neutral expert would be made by the World Bank, in consultation with the two countries. If the neutral expert rules that the 'differences' should be treated as a 'dispute', then a court of arbitration would be established. While India has said that it would have no hesitation in making available to the expert all technical details of the project within the parameters 'clearly laid down' in the 1960 Indus Water Treaty and cooperate fully with the World Bank in the selection of the neutral expert, Pakistan Prime Minister Shaukat Aziz said, 'This is the best way (to settle the issue) instead of engaging in a discussion'. India maintains that it is clear on the treaty with regard to the construction of the dam. Pakistan wants India to change the design of the gates and the height of the reservoir among other things. India also believes that Pakistan's objections are politically based rather than technical in nature. During his conversation with Prime Minister Manmohan Singh, President Pervez Musharraf had said he would direct the technical teams to talk to their counterparts. The Indian offer was premised on the fact that the World Bank was taking inordinately long to make a decision. The Pakistan case had been referred to their legal division and as it is the wont with large bureaucracies, this was slowly winding its way through the mammoth Bank system. Experts are of the view that even if Pakistan received no satisfaction from the Bank, politically it would have been very difficult for Musharraf to walk back to the bilateral track without it being a significant concession. Particularly, as India was not about to stop construction of the dam, a critical demand by Pakistan. They believe that New Delhi's strategy to navigate its way through the maze of diplomatic negotiations on the contentious Baglihar issue with Pakistan may have received a setback with the intervention of the World Bank. The expectation is that New Delhi will persist with this position when the neutral expert begins the task of arbitration and insist that there has not been any violation on its part. India has maintained that it had not committed any violations of the Treaty and was willing to make full efforts to convince Islamabad on this aspect. However, if India is asked to stop work on the project until the neutral expert reaches a definite verdict, South Block mandarins believe it will be a diplomatic blunder to have disregarded Pakistan's threats to knock at the World Bank door earlier. In January this year Pakistan had requested the World Bank to appoint a neutral expert to help resolve the difference. India has already termed the move as 'premature' and 'not justified' saying that the differences could have been sorted out 'bilaterally' through further technical level discussions by the two sides. The fact that the dispute was moving into the realm of a third-party arbitration became clear when the Pakistan Government approached the World Bank for appointing a 'neutral expert' to resolve the latest India-Pakistan dispute. A day after Islamabad moved the World Bank, President Musharraf said that Baglihar was now one of the disputes between India and Pakistan that required resolution for improvement in relations. 'The development on the Baglihar project is not good and it should have been resolved between the two countries.' Musharraf said as he suggested a 'pragmatic approach' to improve relations between the two countries. Under the Indus Water Treaty, 1960, three rivers- Sutlej, Ravi and Beas- were allocated to India; while three other rivers- Chenab, Jhelum and Indus- were allocated to Pakistan. The Treaty allows India to have 'non-consumptive' projects that do not consume any water, like hydro-electric projects, on the rivers allocated to Pakistan. Now, with Islamabad sending the request, the World Bank will appoint a neutral expert to go into the dispute. This will be approved by the two countries. And, if they don't agree on the exprt or his findings, the World Bank may appoint a court of arbitration. According to a World Bank expert and authority on the Treaty, Pakistan's reference for arbitration could end up opening a 'Pandora's Box' with the dispute prolonging for years. Describing the Baglihar hydel-power project as 'Kashmir's jugular vein and flagship of its future prosperity', Jammu and Kashmir Chief Minister Mufti Sayeed said his Government would pursue the project. However, the World Bank has said that it was not a 'guarantor' of the Treaty concluded by India and Pakistan on September 19, 1960. The Bank said in a statement posted on its website that it is a signatory to the Treaty for certain specified purposes. Many of the purposes for which the World bank signed the Treaty have been completed. There are now three remaining responsibilities for the World Bank under the Treaty relating to settlement of differences and disputes. As per the World Bank, the disagreements on the interpretation of the Treaty fall under three categories; questions are examined by the Permanent Indus Commission; differences by a Neutral Expert; and disputes by a Court of Arbitration. According to the Treaty, the remaining responsibilities of the World Bank are a role for it in the appointment of a neutral expert and the first step under the Treaty is to resolve any 'question' through the Permanent Indus Commission itself. If the 'question' is not resolved there, it becomes a 'difference' and is referred to a neutral expert, to be appointed by the two countries, or by a third party agreed upon by the two countries. In the absence of an agreement on the name of a neutral expert, the World Bank, in consultation with the two countries, would make the appointment. 'The decision of the neutral expert on all matters within his competence shall be final and binding,' the Treaty says. The Treaty provides for a role for the World Bank in the establishment of Court of Arbitration. If the 'difference' should be treated as a 'dispute', then a Court of Arbitration would be established. Even as the World Bank is saddled with the task of bridging over Baglihar's troubled waters, Pakistan is of the view that construction of the project violates the treaty and will rob Pakistan of Chenab water Experts in India, however, do not buy the argument and feel Pakistan's objections are political and not technical. On Pakistan's argument that the Chenab water is a reservoir, India does not agree and says it is a run of the river project. New Delhi is also not prepared to stop construction, as desired by Islamabad, which also wants that the issue be sorted out first. New Delhi is also opposed to any change in the design as suggested by its neighbour. Thus, it appears that the controversy shrouding Baglihar hydropower project on the Chenab river in Jammu and Kashmir is far from over. When Indian and Pakistani officials had met in New Delhi last year, a breakthrough appeared to be in sight after hard negotiations on the contentious project, bogged down in dispute for the last five years. Both the sides had discussed 'all issues' with an 'open mind' showing respect to each other's assessments and New Delhi claimed to have taken them very close to resolution. Islamabad too said the talks have concluded in a 'win-win' situation. But, experts were skeptical. They felt that the dispute is all but resolved. The dispute began in 1999, when Pakistan first cried foul over what it thought was a violation of the 1960 Indus Waters Treaty (IWT). But, suddenly after the meeting of the officials from both sides, it looked like being settled. The news made the worried people on both sides of the border happy, a Pakistani daily reported in its editorial. Experts feel the only way to resolve the matter will be to call in neutral foreign experts as laid out in the Treaty. But that may be worse from India's point of view than settling the issue with Pakistan bilaterally. Perhaps, that is the reason why India has reportedly not liked Pakistan's decision to take the Baglihar dam issue to the World Bank. Pakistan had raised objections to the Baglihar hydroelectric project four years ago and since then the issue has been a sticking point in annual meetings of the Indus Commission. In the meeting in Islamabad in 2002, Pakistan had indicated that it would be asking for neutral experts if its demand of the visit to the project site was not met. Then Pakistan served India with a notice for appointment of neutral experts in May last year. The issue again came up during the talks in New Delhi in 2003. At the last year's meeting, India maintained that Pakistan could not seek appointment of neutral observers until the technical aspects of the project were discussed between the sides. The insistence by the Indian side not to appoint neutral experts is seen by observers as yet another attempt to buy time for completing the project. Accusing India of dragging its feet over the Baglihar issue since May 1999, when Islamabad first objected to its design, another Pakistani daily said that New Delhi postponed almost half a dozen times inspection tours of the project site that Pakistan had requested under the Treaty. 'The delaying tactics by India are nothing but time-taking strategy', the daily said. Brushing aside such remarks, India, however, maintains that the technical design of the project was well within the provisions of the Treaty and national and international practices. Pakistan believes that the Baglihar project, which provides for submerged gated-spillways, is in breach of the 1960 Treaty. These spillways would allow India to increase the storage capacity far beyond what is allowed to India under the pact. Islamabad's main concern is that the structure would provide India the capability to manipulate flow of water to Pakistan's disadvantage. Therefore, prevailing acute water shortages in the Indus basin could be one of the serious adverse consequences for Pakistan. The Indus Water Treaty was signed under the good offices of the World Bank at Karachi by Mohammed Ayub Khan, the then President of Pakistan and Jawaharlal Nehru, the then Indian Prime Minister and WAB Illif of the World Bank in 1960. Thus, history turned a full circle when Pakistan's Minister of State for Finance Umer Ayub signed the petition to World Bank. Umer is son of former Pakistan Foreign Minister Gohar Ayub Khan and grandson of Ayub Khan, who had inked the Treaty. Under the Treaty, Pakistan has exclusive use of the Indus, the Chenab and the Jhelum rivers, except that upper riparian India can make hydro-electricity from them and use them as navigational facility. India on its part has similar rights over the Beas, the Sutlej and the Ravi, the eastern tributaries. But for both these 'permitted' uses, water has to be collected in reservoirs. Had relations been cordial between India and Pakistan, the reservoirs could be built through mutual consultations and joint approval of project designs as happens all the time among upper-lower riparian states with treaty obligations. Under the Treaty, India was entited to construct a plant on the three western rivers (allocated to Pakistan for unrestricted use) for generation of hydel power if it did not construct spillways with submerged gates. Pakistan thought Baglihar had spillways with submerged gates over Chenab and objected. The underwater gates would raise the capacity of the dam beyond stipulated levels and thus deprive Pakistan of about 7,000 cusecs of water per day and completely disrupt supplies for an uninterrupted period of 26 days during the critical period of December-February. Pakistan then connected Balighar with several other lesser known projects on the Indian side and projected a doomsday scenario of utter depredation in Pakistan. For some, this was an issue on which Pakistan could declare war on India under international law. On the Indian side, there were hawks who said that Pakistan should be punished for infiltrating 'terrorists' across the Kashmir border even if it meant a violation of the Treaty. If resolution of water-related disputes is important for the process of normalisation, one project that can come on line immediately is the supply of surplus Pakistani electricity to India. Here it may be recalled that in mid-1990s, the offer was made and India went into negotiations but due to lack of political consensus and will the deal was called off. India did not then take the chance of linking Pakistan to itself as an ancillary economy. But, it can do so now since more and more Indians are now inclined to give priority to economics. Pakistan's economic straits too have forced it to think that it can survive next to India's big economy by benefitting from it. Interestingly, the Treaty has survived for over four decades, despite wars and diplomatic stand- offs between the two countries. According to the World Bank expert, the 'fair Treaty' has remained only 'one of its kind in the world' because it involved the most complex negotiations. Most of the differences between India and Pakistan are at the political level and for that reason common people from both sides should not suffer. Both the sides should realise that water is a social issue and not a political one. Perhaps, that is the reason why Pakistan's Prime Minister has contended that failure of talks on Baglihar issue will not stall the composite dialogue process.


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