A 450MW hydroelectric plant proposed to be constructed at Baglihar, and utilising the waters of the river Chenab in India’s northern state of Jammu & Kashmir (J&K), had been under dispute between India and Pakistan since 1992, when the former notified its western neighbour of its intentions to develop the project. Pakistan objected on the grounds that the project design was violative of certain key provisions of the Indus Waters Treaty, 1960 (IWT) between the two countries which had governed the use by them of the Indus river system.
With the talks between the two countries in the intervening years having failed to arrive at an agreed solution, Pakistan decided to remit the dispute in 2005 to a Neutral Expert, to be appointed under the provisions of IWT, by the World Bank. The expert, Prof Raymond Lafitte, gave his decision on 12 February this year on the four contentious points that had been referred to him. Under the terms of IWT, his decision is ‘final and binding’ on both parties. But would it really mark the end of the 15-year dispute between the two neighbouring countries over the Baglihar project?
To appreciate the complexities of the situation, a quick look at the context is necessary. The Indus river system in the sub-continent comprises the main Indus river and its five major tributaries. All of these originate in the Himalayas and pass through Indian territory. After Indus has received the waters of its five tributaries in Pakistan, it flows through the Pak provinces of Punjab and Sind before falling into the Arabian Sea, south of the Pakistan city of Karachi.
Britain granted independence to India in the year 1947 by partitioning it into two countries of India and Pakistan. That led to an arbitrary split in control and usage of the Indus river system. It was only in September 1960 that the two riparian states, through active mediation by the World Bank, signed the IWT. Key provisions of the Treaty included the following:
•The usage of waters of three of the ‘Eastern’ rivers - Ravi, Beas and Satluj - was given exclusively to India.
•The usage of waters of three ‘Western’ rivers – Indus itself and its two other tributaries, Jhelum and Chenab – was given exclusively to Pakistan. However, India, as the upper riparian state, was allowed a restrictive use of those waters for domestic, agriculture, non-consumptive and hydro generation purposes.
•To oversee implementation of IWT, a Permanent Indus Commission was set up, comprising a representative from each of the two countries.
Apart from India and Pakistan, the World Bank was also a signatory to IWT.
During the 47 years that the Treaty has been in existence, it has served both the countries well. They were able to develop projects to utilise the waters of the respective rivers assigned to them for the various purposes. Even on the Western rivers, where India was given a restrictive usage, it developed major hydro projects at Dulhasti and Salal after sorting out points of difference with Pakistan through talks under the ambit of IWT. This was of crucial importance to India as these rivers and their tributaries have nearly all of the estimated 20-GW hydro potential of J&K State. However, until now, only about 8% of the potential has been utilised and India has already identified a number of small and medium-sized projects to be developed in the coming years.
On the Baglihar project, however, both countries found that their differences were irreconcilable. Baglihar is a run-of-river scheme, based on a concrete-gravity dam with an original design-height of 144.5m, affording enough live storage to run a 450MW power plant in its first stage, and with gated spillways for flood-control and to reduce sedimentation – both banes of all Himalayan rivers.
Pakistan protested however that certain design features of the Baglihar project were violative of the provisions of IWT :
•The planned pondage of 37.7Mm3 was excessive and, as per Pakistan’s calculations, should only be 6.22Mm3.
•Similarly, the free board of 4.5m was uncalled for and should be reduced to 3m.
•The water intakes for the power plant, which under IWT had to be located at the ‘highest level consistent with satisfactory and economical construction and operation’ of the plant, needed to be raised by 7m (from the designed 818m).
•Pakistan objected to the gated spillways in the dam and asked that either ungated on surface-gated spillways be provided, with the bottom-end of gates at the highest level.
Formal talks between the two countries on the dispute began in May 2000 under the Permanent Indus Commission, after India had signed an agreement in the preceding year to execute the project. The level of these talks was raised to that between the senior officials (and later, to the Heads) of the two governments, but no agreement could be reached. In January 2005, Pakistan moved the World Bank to appoint a ‘neutral expert’ to decide on the ‘differences’ over the project under the relevant provisions of IWT.
Four months later, in May 2005, World Bank appointed Prof Raymond Lafitte, a Swiss civil engineer working on the faculty of Federal Institute of Technology at Lausanne. Lafitte had five rounds of talks with the representatives of both the countries and also visited the project site in their presence. On 12 February 2007, he gave his decision on the questions that had been referred to him. His decision was as follows:
•The planned pondage should be reduced from the designed 37.5Mm3 to 32.56Mm3. He did not however agree with Pakistan’s calculations which would have led to a drastic cut to 6.22Mm3.
•The free board be reduced by 1.5m, to 3m.
•The water intakes be raised by 3m (as opposed to the 7m suggested by Pakistan).
•On the gated spillways, Lafitte held them to be in conformity with international practice and state-of-art technology, after studying the database of about 13,000 dams from ICOLD’s World Register of Dams. In the existing conditions at Baglihar, he held that the number, size and location of gates as per its design complied with IWT, thus upholding India’s stand.
In their first reactions, given on the day of Lafitte’s decision itself, both India and Pakistan claimed ‘victory’. Pakistan’s Water and Power Minister L. K. Jatoi justified this by the fact that Lafitte had upheld its objections on three out of four issues, and he asked India to accept the decision as its ‘moral, legal and political obligation’.
Indian reaction as given by its Water Resources Minister, Prof. S. Soz (who incidentally comes from Kashmir) was equally positive. He was happy that the overall design of the project, including the gated spillways, was upheld by Lafitte. On the three issues where Lafitte had asked for variations in design parameters, it was stated that during its negotiations with Pakistan (before Lafitte was appointed), India already ‘had offered possible reduction of freeboard’ to Pakistan ‘in the spirit of good and neighbourly relations’.
The other two variations suggested by Lafitte too were of a minor nature and no difficulty was expected in making the appropriate design changes.
From India’s point of view, it could now go full-steam ahead with both stage-I of Baglihar project now planned for commissioning in the coming winter of 2007-08, and with the pre-project work of its stage-II (also 450MW). It also had plans to progressively utilise most of the 20GW hydro potential of J&K state (of which 16.2GW has been identified, but less than 2GW developed). Most of it lay in the waters of the three western rivers and their tributaries. Two projects, Kishenganga and Tulbul (see Table 2) had already remained suspended due to Pakistan’s objections. Lafitte’s decision was bound to have an effect on settling the differences on these projects too.
Lafitte’s approval to India’s usage of gated spillways would enable it to deal more effectively with the problems of sedimentation and flood-control in future hydro projects in that state, according to J & K Power Minister Rigzin Jora (as quoted in The Hindustan Times). Pakistan’s fears about these spillways being used against its interests, however, remain unallayed. Its Minister Jatoi thus said that the various technical and legal aspects of this particular issue were being studied, and that ‘we have the right to take up the spillway issue anytime at an appropriate forum’.
What happens next?
Would Lafitte’s decision which, as per the provisions of IWT is ‘final and binding’ on both the parties, see the end of the dispute over Baglihar project?
India has already accepted the decision and is going ahead with consequential action. For that reason, the award has quickly become a non-issue in India both among the stakeholders and the media. In fact, the media both in India and Pakistan had, by and large, taken a balanced and positive view of the situation, and pointed to the peaceful settlement of this dispute under the aegis of a neutral expert as a way out where mutual talks do not lead to a settlement.
Privately, however, fears are expressed whether Pakistan would ultimately accept the finality of the award. It is an accepted fact that there is mistrust in Pakistan over India’s plans to utilise the waters of Western rivers purely for developmental needs and in a way that does not damage the interests of the lower riparian State. Water resource is a sensitive issue in both the countries, and Pakistan apprehends that India could regulate the flow of these rivers in a way that goes against both agrarian and geo-strategic requirements of Pakistan.
So, what are the options still open to Pakistan? In the very least, it could seek from India an access to the Baglihar project site from time to time, so as to monitor and satisfy itself that India is complying with the decision of Lafitte on various issues. That itself has the potential to create future discord on the project over technical and other aspects, based on the ground realities.
Then again, on the gated spillways, Pakistan could take a view that a question had arisen out of Lafitte’s decision which was beyond his competence to resolve. It could thus invoke the provisions of Article IX (paras 3-5) of IWT and seek reference to a seven-member Court of Arbitration. It could also opt to take that particular issue (or the entire dispute) to the International Court of Justice at the Hague. However, either of that recourse would be a calculated risk, given that Lafitte was a neutral expert.
In the ultimate reckoning, the settlement of Baglihar and other such hydro disputes requires a spirit of goodwill and mutual accommodation between the two countries. The entire Indus Water Treaty 1960 covering such disputes is predicated on that basic premise.
Salient features of the Baglihar hydro project (after Prof Lafitte's decision)
317m length at the top
Dam pondage : storage capacity of 32.56Mm3
Intake for power plant : at 821m elevation
Gross head : 130m
Main spillway : six submerged radial gates, 10m wide and 10.5m high
Chute spillway : two crest radial gates, 12m. wide and 19m high
Two tunnels, total length 939m, horse-shoe shape
10.15m diameter, circular tunnel, 2070m. long
160m long, 10m wide, 19-27.5m. high, D-shape
Underground cavern, 121m x 24m x 50m.
Three Francis Vertical-axis turbines, each 150MW
Rated discharge per stage: 430m3/sec
Installed capacity : 450MW in Stage-I
Generation : 2.804B units in a 90% dependable year
Underground Transformer Hall having 10 transformers of 11kV/400kV single-phase
Outdoor 400-kV switchyard
Jaiprakash Associates of India, for all Civil and H-M works on EPC basis.
Siemens / VA Tech Hydro Vevey for E-M works .
Lahmeyer International for design and contracts review, construction supervision and contract supervision.
J&K Power Development Corporation Ltd., owned by State Government of Jammu & Kashmir, India.
Over river Chenab in the Doda District in the Indian state of Jammu & Kashmir
Likely total cost
In excess of US$1B
This comprises a 330MW hydroelectric scheme, utilising the waters of the river Kishenganga, at a total estimated cost of US$500M. Kishenganga is a tributary of river Jhelum (one of the three 'Western' rivers under IWT), of which India is permitted only a restrictive use as the upper riparian State.
The original project to be executed by India's NHPC, involved construction of a 103m high dam on Kishenganga in the famed Kashmir Valley, which would divert a part of its water to Wular Lake in the south through a diversion tunnel, and an underground power house with three 110MW Pelton turbincs.
However, Pakistan put in objections both to concept and the design of the project as being violative of IWT. Environmentalists were also concerned that the Indian project could submergence vast tracts of land in the Gurez area and displace local residents. Pakistan also felt that the project would adversely affect its own Neelum-Jhelum hydro project, proposed to be set up downstream of Kishenganga after it had enters Pakistan-occupied Kashmir.
During Indo-Pak talks on the issue, India agreed to take a second look at the design of its project to meet some of the objections raised by Pakistan. This included ensuring that the project remained run-of-river and also envisaged non-diversion of water to Wular Lake. However, no settlement has been reached between the two countries at the time of writing.
Tulbul Navigaton project
This project involves the construction by India of a barrier on the river Jhelum, downstream of Wular Lake, to make the river navigable during the lean winter months. The structure is to be 134m long and 12.2m wide with a navigation lock, at a place 40km north of the state capital of Srinagar. It is aimed to improve the lean flow of 2000m3/sec (with a depth of 0.8m) to above the minimum of 4000m3/sec (depth of 1.2m) required for navigation in a 20km portion of the river between Sopore and Baramulla.
Work on the project had started in the year 1984, but was stopped in 1987 after Pakistan raised objections of it on being an alleged violation of IWT. It said that the project (which Pakistan has termed as Wular Barrage) is prohibited by the Treaty which bars India from constructing any storage (except a limited one for flood control) over Western rivers, or any 'man-made obstruction' which would cause 'change in the volume … of the daily flow of waters'. Pakistan also felt that the barrage would have the potential to disrupt its own three-canal system downstream.
India's rebuttal is that the Tulbul project is not for storage, that Wular was an existing lake and that the project amounted to only 'regulating the flow'. It pointed out that augmentation of flow during the lean season would benefit both the countries as the river Jhelum, downstream of the project, entered the Pakistan-occupied portion of the Kashmir State.
The project has so far remained unexecuted.
I M Sahai is an independent consultant in hydro power and is based in New Delhi, India