Baglihar Hydroelectric Plant - Issue between Pakistan and India
|Geolocation:||33° 9' 14.4954", 75° 21' 1.165"|
|Total Population||300300,000,000 millionmillion|
|Climate Descriptors||Humid mid-latitude (Köppen C-type), Dry-winter|
|Predominent Land Use Descriptors||agricultural- cropland and pasture, forest land, rangeland, urban|
|Important Uses of Water||Agriculture or Irrigation, Hydropower Generation, Livestock|
|Water Features:||Indus River|
|Water Projects:||Permanent Indus Commission|
|Agreements:||Indus Waters Treaty|
- 1 Summary
- 2 Natural, Historic, Economic, Regional, and Political Framework
- 2.1 Economic Dependence on Water
- 2.2 Political Environments
- 2.3 Historical Background of Indus Waters Treaty (IWT)
- 2.4 Salient Features of the Indus Waters Treaty Relevant to the Case Study
- 2.5 The Issue of Baglihar Hydroelectric Project (BHP)
- 2.6 Proceedings before the Neutral Expert
- 2.7 Role of Media and Public Perception
- 3 Issues and Stakeholders
- 4 Analysis, Synthesis, and Insight
- 5 Key Questions
- 6 References
The Indus Waters Treaty (IWT), between Pakistan and India, was signed in 1960, following stoppage of water by India (upper riparian) to Pakistan (lower riparian) in 1948. Each country was allocated three rivers for almost exclusive use with some exceptions. Amongst the exceptions, India was allowed construction of Run-of-River (ROR) Power Plants on rivers allocated to Pakistan.
In 1992, India proposed to construct a run of river Baglihar Hydroelectric Power Plant , on the River Chenab, which is one of the rivers allocated to Pakistan. Within three months, Pakistan objected that the design of the free board (empty space over the full reservoir level) and the pondage (operational storage) enabled India to store more water than permissible under the designed criteria given in the IWT. Pakistan also objected to the location of power tunnels and the sluice spillway, which allowed India capability to exercise control over waters of River Chenab. The Permanent Indus Commission, created under the IWT, could not resolve the issues. In the mean time, in the year 2000, India unilaterally started implementation of the project. Thus on Pakistan’s request a Neutral Expert (N.E) was appointed in 2005 through the good offices of the World Bank.The Neutral Expert determined, on 12 February 2007, that modifications were needed in the design of free board, power tunnels and pondage but allowed India to retain the sluice spillway (Laffite 2007). Pakistan was aggrieved that the N.E misinterpreted the IWT in respect of the sluice spillway, therefore, it approached the Court of Arbitration (CoA) in the subsequent case of Kishenganga Hydro Electric Project. The CoA ruled in favor of Pakistan (CoA 2013a, CoA 2013b). Now it is to be seen whether India complies to this decision in future plants!
Natural, Historic, Economic, Regional, and Political Framework
The Baglihar Hydro Electric Plant (BHP) with 900 MW capacity is located on River Chenab in the territory disputed by India and Pakistan, namely Jammu and Kashmir, about 147 km from line of control between Pakistan and Jammu and Kashmir (figure 1). The River Chenab is one of the tributaries of the Indus. The headwaters of the Indus rise in the glaciers of the Himalaya Hindu Kush (HKH) often called the “water towers”. River Indus flows from the Tibetan Plateau in western China and after crossing into the Kashmir region and traversing Pakistan’s territory, flows out into the Arabian Sea. The Indus River has six tributaries, (figure 2) , Chenab, Ravi, Sutlej, Jhelum, Beas in the East flowing through Indian and/or Indian held Kashmir and the Kabul River in the West flowing through Afghanistan (Indus Basin Working Group, 2013).
Economic Dependence on Water
Pakistan has world’s largest contiguous canal irrigation system dependent solely on waters of Indus Basin shared with India and Afghanistan. About 64% of it’s population depends upon agriculture. Water is a critical input for agriculture to meet food and fiber requirements, drinking water, sanitation, industry, environment, etc of Pakistan. Agriculture contribute about 21-23% of GDP. 80% of rural work force engaged in agriculture. It is responsible for 60 to 70% exports of the country. The country has over 60,000 MW hydroelectric power generation capacity which can produce electricity at a fraction of the cost of generation of power from fossil fuels. Water is truly the life line of Pakistan.
The Indian Sub-Continent was partitioned in two independent countries, Pakistan and India in August 1947 ending the British colonial rule. The partition took place in an atmosphere of animosity, as Indian Congress Party was not in favor of partition, and resulted in ethnic/communal riots killing millions of people in one of the largest migration of people in the history of the world.
Since Partition, Pakistan and India have a checkered relationship history. The countries have fought three major wars besides many border skirmishes. Reports of border clashes appear quite frequently. The major bone of contention between the two countries is the issue of the disputed territory of Jammu and Kashmir, part of which is occupied by India and the rest is the Independent Azad Kashmir-- an autonomous administrative territory of Pakistan. The UN had 1948 passed a resolution that a plebiscite be held in the area to decide accession of Jammu & Kashmir to India or Pakistan. However, this could not be done for 66 years because of India’s unwillingness to comply with the UN Resolution. At some times it appeared that the two governments were making political efforts to come closer, but it was found impossible for them to make any compromises on their stances on the Kashmir issue. Added to that had been fanatic terrorist activities on both sides and fanning of negative sentiments by some political parties, organizations and some factions of media. Tension, blame throwing and mistrust continues through with amplitudes varying with time.
Historical Background of Indus Waters Treaty (IWT)
The new geographic boundaries after the partition in 1947 cut across the Indus Basin boundaries. As Indus river and its tributaries, Jhelum, Chenab, Ravi, Sutlej and Beas were flowing through Indian territory or Indian held Kashmir, India became the upper riparian and Pakistan became the lower riparian. All the upstream control structures on the rivers fell on the Indian side of the divide. The Boundary Commission for partition had proceeded in good faith that the pre-partition arrangement for of sharing of water will be continued by the two new governments. However, just one day after the Arbitral Tribunal for settling issues arising out of partition between Pakistan and India ceased to exist, on 1 April 1948, India cut off the supplies of water to Pakistan in every canal flowing from the Indian Territory. This affected 1.7 million acres of land, cattle and other livestock and endangered millions of human beings dependent on the waters of these canal systems. Mutual Trust (whatever was left of it after the bloody partition in 1947) was a major casualty!
Following this episode, efforts were made by the governments of the two countries to come to some mutual agreement for sustainable water sharing arrangements but to no avail. Eventually, a third party, the World Bank, became involved and 12 years later Indus Waters Treaty was signed in 1960 under the aegis of the World Bank.
The process of evolution of the Treaty entailed initial attempts to harness the potential of Indus Basin through mutual cooperation for managing the shared water resources, but the only feasible settlement was found to be division of waters . Pakistan was unwilling to allow means of control of flow of waters to India in the wake of the incidence of stoppage of water flowing to Pakistan in 1948, while India wanted sovereignty over waters flowing through its territory. Fortunately, it was possible to exclusively allocate three rivers, each, to divide the water between the two countries to overcome the impasse. India was allocated Sutlej, Ravi and Beas Rivers (called the Eastern Rivers) and Pakistan was allocated Indus, Chenab and Jhelum Rivers (called the Western Rivers). Consequently, Pakistan had to divert waters of the Western Rivers to the command areas of the three Eastern Rivers which were feeding vast tracts of agriculture land in Pakistan (figure 3).
Salient Features of the Indus Waters Treaty Relevant to the Case Study
India was allowed some use of waters of the Western Rivers for domestic, non-consumptive, agricultural uses and generation of power based on Run-of-River (ROR) Power Plants as well as storages quantified in the Treaty. Likewise Pakistan was also allowed some limited use of water of Eastern Rivers for domestic and Agriculture uses (but not for power generation). Design and operational criteria was laid down in respect of ROR, storage based power plants and other hydraulic infrastructure allowed under the Treaty so as to ensure that India would “let flow” waters of Western Rivers without any “interference” beyond the exceptions allowed under the Treaty.
Specific river-wise ceilings were given in the IWT for the categories of General, Power and Flood Storages and that which is incidental to a barrage on Jhelum Main and Chenab Main Rivers. The Treaty also envisaged that if either Party plans to construct any engineering work which would cause interference with the waters of any of the Rivers then it will inform the other party giving it due chance to evaluate impacts. In respect of new RoR projects by India on Western Rivers, it envisaged that India shall provide prescribed information six months in advance of the beginning of construction of river works connected with the Plant and Pakistan was allowed three months, from the receipt of information, to communicate objections, if any.
A Permanent Indus Commission was formed under the Treaty with two Commissioners, one from each country to “serve as the regular channel of communication on all matters relating to the implementation of the Treaty”. It’s functions inter-alia included, “to make every effort to settle promptly, in accordance with the provisions of Article IX (1) [of the Treaty], any question arising thereunder”. The Treaty also provided a mechanism for Settlement of Differences and Disputes. Briefly, in simple words, it envisaged that the Permanent Commission shall first try to resolve “question” arising of interpretation of Treaty or breach of Treaty. If the Permanent Commission fails to resolve the matter, it can be referred to a Neutral Expert for engineering issues (called Points of Difference”) or a Court of Arbitration (CoA) for legal matters (called Dispute”) appointed in accordance with the provisions of the Treaty.
Except for the issue on Wullar Barrage (a barrage over river Jhelum), no other issue has arisen so far with regards to storages. The Wullar Barrage called Tulbul Navigation Project in India, was justified by India as a navigation project. This envisaged a barrage on the outflow point of Wullar Lake on river Jhelum, a Western River. The storage incidental to the barrage was 320,000 MAF of water as against specific restriction of 10,000 MAF in the Treaty. The work on the project has been suspended since 1987.
Most of the post Treaty issues relate to Run of River Plants (RoR) constructed (or proposed) by India. The Treaty did not envisage any ceiling for the number or capacities of the projects as long as those met the design criteria/ restrictions laid down in the Treaty. Issues/ objections raised by Pakistan on RoR projects had mainly been that India was not strictly adhering to the design and operational criteria/restrictions laid down in the IWT. On the other hand, India had rejected Pakistan’s stance and started projects unilaterally, without settling the issues.
The Issue of Baglihar Hydroelectric Project (BHP)
Information about the Baglihar Dam, on the River Chenab, was communicated by India to Pakistan in 1992. Pakistan had objected to the design of the Baglihar Hydroelectric Plant within the period of three months prescribed in the IWT.
The essence of the objections was that the project, as designed, would enable India to acquire potential to store excessive water and capability of greater control on waters of Chenab River than permissible according to the design criteria given in the Treaty. Regarding the potential to store, Pakistan objected that the free board (empty space over the full reservoir level) and the pondage (operational storage of water to meet the fluctuations in the discharge of the turbines arising from variations in the daily and weekly loads of the plant) were excessive. Regarding control on waters, Pakistan’s objection was that following the design criteria in the Treaty , the location of power outlets (power intake tunnels) and the orifice spillway (five submerged gates with cill level 32 meters below the full pondage level) provided capability to India to exercise control over waters of Chenab River. A typical schematic diagram of a dam with low level outlets is shown in figure 4 while the front elevation of the Baglihar Dam is shown in figure 5
Pakistan’s view was that, as per the design criteria in the Treaty, the power outlets can be moved up by a few meters and the orifice spillways could be converted to surface spillway by locating the gates at upper elevation such that their top level was at the surface of water. This would truncate India’s capability to control flow of waters. Pakistan’s objections were based on the specific design criteria given in the Treaty (IWT, Annexure D) meant to minimize India’s storage and control on waters of Western Rivers.
The two Commissioners continued exchanging letters and debating the procedure for settlement of Pakistan’s objections up to year 2000 (for 8 years) without any success. Many correspondences and meetings ended up in arguing about whether the stage for invoking the clause on settlement of differences and disputes had arrived, items of agenda of the meetings, contents of the minutes of the meetings, completeness of data/project details and other modalities. Practically, barring exceptions, no substantive discussion of engineering issues took place.
In 2000, to Pakistan’s surprise, it was learnt that India had started implementation of the. Efforts were made at Commissioner’s and diplomatic levels to prevail on India from going forward on the project without settling the issues but to no avail. It seemed that India interpreted the Treaty that it only envisaged provision of information by India six months in advance of start of construction and receipt of objections by Pakistan in three months, if any. There was no specific provision to settle the issues before start. Commonsense and interpretation in a spirit of good faith would have revealed that the whole purpose of the provision was to settle disputes before start of projects. It was the letter, not the spirit of the Treaty, which was being given over riding importance.
Diplomatic efforts resulted in raising the level of the dialogue at the level of Secretaries of the two Governments dealing with water. This followed by two Secretary Level Talks but couldn’t resolve the matter. Meanwhile construction of the project continued.
Worried by 65% completion of construction works of the dam Pakistan finally invoked the clause on Settlement of Differences and Disputes and approached the World Bank for the appointment of a Neutral Expert in 2005. India strongly contested this move and opposed appointment of N.E. contending that the matters be resolved bilaterally. The record, however, was a testimony that bilateral efforts between the upper and lower riparian had been futile, therefore the World Bank appointed a Neutral Expert in 2005.
Proceedings before the Neutral Expert
Both sides pleaded their cases with the support of engineering studies before the Neutral Expert. Location of the gates of the orifice spillway was the most critical and contentious issue. India had justified the location of the orifice spillway, submerged by 32 meters from the full pondage level, on the grounds that it will be used to pass flood waters and also sluice/flush sediments. Pakistan argued that flood waters can be passed through properly designed surface spillways. Sedimentation sluicing/flushing would require lowering of water level by 32 meters but as the Treaty did not allow lowering of water below dead storage level (DSL) for Run of River project except for emergencies, therefore India’s justification based on sediment sluicing/flushing was not valid (see figure 4). India in it’s submissions to N.E admitted the Treaty restriction regarding DSL and it’s intention to fully comply with it. Yet it contended that sediment sluicing/flushing can take place without lowering the level of water below DSL. Pakistan contended that it was contrary tp engineering facts and that location of orifice spillway will unnecessarily allowed India control over 164000 acre feet of water of the Western River (Chenab). This could be avoided if the criteria laid down in the treaty was followed. Both sides submitted mathematical and physical model studies prepared with the help of world renowned experts/institutions. In the final analysis, India failed to establish that sediment sluicing/flushing can be done without lowering the water level below DSL. The N.E , in it’s draft Determination, observed that "The calculations done by India in the near field of the dam and the model tests (but with less evidence) are not representative of the reality, ---” and, "In particular to expect a cone just upstream of the sluice spillway, with a length 300 or 400 m is illusory –”. The N.E further noted, “a difficulty results from the definition of the Dead Storage contained in the Treaty which states that it cannot be used for operational purposes”. He then went on to make the suggestion that India may draw down water below Dead Storage Level for operational (maintenance) purposes, which would result in justification of orifice spillway. He observed, “This is a suggestion of the NE, conscious that he is beyond the scope of his mandate”.
The Neutral Expert, accepted the essence of all the objections by Pakistan (see table) but in his final Decision he allowed India to retain the orifice spillway on the grounds that lowering of water below DSL was permissible, wrongly interpreting the Treaty.The design in respect of all the other features of the dam on which Pakistan had objected was ,however, modified. Pakistan felt that since both Pakistan and India as well as the expert lawyers had concurred in their interpretation of the Treaty that water level cannot be lowered below DSL except for emergencies, the Neutral Expert had overstepped his jurisdiction by indulging in legal interpretation in allowing draw down of water below DSL for foreseeable phenomenon and also deviated from the procedure set for the resolution of the matter. Therefore, Pakistan recorded it’s dissent to the Decision of the N.E in respect of the location of the orifice spillway.
|-||Main Issue||India's Design||Pakistan's Position||Neutral Expert Determination|
|1||Freeboard||4.5 m freeboard||request reduction of freeboard to 1.1 m||allowed 3 m freeboard|
|2||Power intake not at highest level||located at 818 m||can be raised to 821.74 m||raised to 821 m|
|3||Excessive pondage||37.5 MCM||6.22 MCM||Allowed 32.56 MCM|
|4||Location of Spillway gates. Drawdown below DSL of 835m not permitted by the treaty||5 orifice gates at 808 m. Admitted that drawdown below DSL was not allowed, but contended that silt exclusion will take place despite drawdown restriction||Raise the gates ot spillway crest with bottom level 826/831 meters. Proved that silt exclusion would be insignificant if implementation was fully compliant with IWT.||Accepted Indian design by going outside of the IWT allowing drawdown below DSL on the plea of reservoir maintenance.|
Subsequently, Pakistan took up the matter of misinterpretation of the Treaty with the Court of Arbitration (CoA) in the subsequent case of Kishenganga Hydro Electric Project where India had included a similarly designed orifice spillway in the plant. The Court of Arbitration (CoA) ruled in favor of Pakistan on 18 February 2013. Now it is to be seen whether India complies to this decision in future plants on Western Rivers. Since the BHP had already been completed, the decision applies to all subsequent RoR projects. The matter is of great importance to Pakistan because India has planned a large number of RoR projects on the Western Rivers whose cumulative effect can be substantial , specially in the dry years. India plans 170 plants , 31 on Indus, 63 on Jhelum and 76 on Chenab with total capacity of 17207 MW (CoA 2013a, CoA 2013b).
Role of Media and Public Perception
In the initial years of the interaction between the two Commissioners, the issue was not on the radar screen of the media. However, as the construction started and the matters were taken up at the Secretary Level, it attracted great attention from the media. Misreporting and media twists picked by lobbies on both the sides polluted the environment. In brief, on the Indian side some public perception was that Pakistan is opposed to the construction of this dam and that the IWT was too onerous for India. On the Pakistan side, a section of the public thought that Pakistan had been passive in agitating the issue, India should not be allowed control of waters of Western Rivers in view of it’s past record and that India was trying to get control on waters under the garb of project design necessities (see Barauh 2005, Dawn News 2005, Nizami 2008 for examples). Some Indian lobbies were attributing Pakistan’s objections as move to stop construction of dam allowed to India under the Treaty. Upon the announcement of final decision by N.E. various talk shows and fora debate focussed on who won and who lost. Similar was the tenor of follow up by media after the decision of the CoA who overturned Neutral Experts interpretation of the Treaty (e.g.: Mustafa 2013).
Issues and Stakeholders
ensuring construction projects are within the scope of what is permitted by the Treaty
NSPD: Water Quantity
Stakeholder Types: Sovereign state/national/federal government
Run of River Projects must be constructed by the upper riparian (India) such that India does not acquire capability to control or store water beyond what is genuine in accordance with the criteria and principles envisaged in the Treaty between the parties (Pakistan and India).The Ministry of Water Resources and Water Receiving Area are the primary stakeholders.
Analysis, Synthesis, and Insight
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Apparently intractable transboundary issues can be resolved by referral to a third party. Upfront resolution of issues before the start of construction of projects is a win-win situation for parties involved.(read the full article... )
Contributed by: Ashfaq Mahmood (last edit: 30 January 2015)
Transboundary Water Issues: What kinds of water treaties or agreements between countries can provide sufficient structure and stability to ensure enforceability but also be flexible and adaptable given future uncertainties?
Attributes that support sufficient structure and stability while supporting flexibility and adaptation to future circumstances:
- Clarity about rights and obligations
- Time bound framework for settlement of disputes/ objections bilaterally and through party; if bilateral efforts fail in the given time, up front of construction works.
- A comprehensive clause in the treatise regarding future cooperation on all matters including but not limited to lacunas in the treaty and future challenges in the interest of the most complete and satisfactory utilization of waters. This will provide flexibility and adaptability for future uncertainties.
- Institutional mechanism , such as a joint commission, required to inter alia focus on thinking about and promoting cooperation and regularly preparing a report (say annually) for the governments involved with concrete suggestions to promote cooperations for matters such as elucidated in the question.
- Compulsory collection and sharing of data requested by parties, in real time where possible, except for reasons of military defense.
- A suitable balance between water sharing and benefit sharing.
- Binding nature of Third Party decisions, provided that the Third Party comprises of a panel of 5 to 7 persons instead of a single man.
Mutual Treaties clearly delineating rights and obligations of the parties involved with a suitable balance between water and benefit sharing with a dispute resolution mechanism as described for IWT above (while addressing it’s weaknesses) with binding nature of Third Part decisions is a good mechanism. Alternatively, the UN Convention on the Law of the Non-navigational Uses of International Watercourses Adopted by the General Assembly of the United Nations on 21 May 1997, which recently became effective, if ratified by the parties concerned can provide protection to the downstream riparians. (Note: Remember that some times the upper riparians need to protect their rights as well; e.g. in Nile Basin).
Transboundary Water Issues: How can mutual trust amongst riparians be nurtured? What actions erode that trust?
Mutual trust can be nurtured through
- seamless sharing of data and information through the most efficient means of communications,
- promotion of mutual exchanges to stake holders to build fraternal bonds (e.g experts, academia, farmers, intelligentia, opinion makers, politicians, civil society organizations etc) through conferences, sharing of knowledge, interactive engagements.
Specific situations to be avoided are:
- misleading emotive and irresponsible statements
- unilateral start of projects without resolution of issues upfront.
- violations of provisions of treaties
- tendencies to gain political mileage or media exposures.
- non water actions (such as political, military, commercial, terrorism etc) which can vitiate the general feeling of mutual trust.
AquaPedia Case Study Database contributors, "Addressing the Transboundary Water Conflict Between the Blue Nile Riparian States," AquaPedia Case Study Database, , http://aquapedia.waterdiplomacy.org/wiki/index.php?title=Addressing_the_Transboundary_Water_Conflict_Between_the_Blue_Nile_Riparian_States&oldid=6248 (accessed January 23, 2015).
Baruah, Amit. 2005. "Pakistan Deciion on Baglihar unjustified." The Hindu (Jan 19) Available online: http://www.thehindu.com/2005/01/19/stories/2005011906461100.htm
Court of Arbitration (CoA) 2013a. Partial Award Indus Waters Kishenganga Arbitration (Pakistan v. India) (18 February). Documents linked for download from: http://www.pca-cpa.org/showpage.asp?pag_id=1392
Court of Arbitration (CoA) 2013b. Final Award Indus Waters Kishenganga Arbitration (Pakistan v. India) (20 December). Documents linked for download from: http://www.pca-cpa.org/showpage.asp?pag_id=1392
Dawn News (2005) "Fall out of Bahilar Dam" Dawn.com (Feb 14) Available online: http://www.dawn.com/news/382399/fall-out-of-baglihar-dam Laffite R. 2007. Baglihar Hydroelectric Plant, Expert Determination, Report (12 February). Overview and relevant documents available online: http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/SOUTHASIAEXT/0,,contentMDK:20320047~pagePK:146736~piPK:583444~theSitePK:223547,00.html
Indus Basin Working Group. 2013. Connecting the Drops. An Indus Basin Roadmap for Cross-Border Water Research, Data Sharing, and Policy Coordination, Indus Basin Working Group, Observer Research Foundation, Stimson, and Sustainable Development Policy Institute,2013 (ISBN: 978-1-939240-02-6)
Okoth-Owiro A. 2004. The Nile Treaty, States Succession and International Treaty Commitment: A case Study of Nile Waters Treaties. Report. Konrad Adenauer Stiftung and Law and Policy Research Foundation 2004, ISSN 1681-5890. Electronic version online: http://www.kas.de/wf/doc/kas_6306-544-1-30.pdf
Mustafa, K. 2013. "India emerges close winner in Kishanganga case: World court to ensure half of water to Pakistan" Internation the News (December 22) Available online: http://www.thenews.com.pk/Todays-News-2-221782-India-emerges-close-winner-in-Kishanganga-case
Nizami, M. 2008. "The water bomb" The Nation (May 27). Available online: http://nation.com.pk/columns/27-May-2008/The-water-bomb
Private Power Infrastructure Board (PPIB) Pakistan. 2014. Water Diplomacy & Water Cooperation. Policy Briefings 1. IUCN Pakistan. Online: http://waterinfo.net.pk/sites/default/files/knowledge/PWP%20Policy%20Brief%20I%20-%20Water%20Diplomacy%20%26%20Water%20Cooperation.pdf