Lessons From the Baglihar Case

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Contributed by: Ashfaq Mahmood

Contributor Perspective(s): Practitioner
Article last edited 30 Jan 2015 by Amanda
Article originally added by Ashfaqm

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This article is linked to Baglihar Hydroelectric Plant - Issue between Pakistan and India

The case of Baghlihar is a description of a transboundary issue from the emergence of the problem, through attempts to solve it leading to the failure of bilateral efforts, use of diplomatic euphemisms, and ultimately, the referral to third parties for problem resolution. However, it shows that all steps envisaged in the Indus Waters Treaty were followed: advance communication of project information, timely communication of objections by Pakistan, bilateral efforts at Commissions’ level, government level efforts both through diplomatic channels and water Secretary levels, and upon failure of bilateral efforts, a third party assisted in settling the issues. This demonstrates the robustness of the Treaty. However, it also exposes some weaknesses of the Treaty in terms that it does not prohibit unilateral start of a project, and makes it binding to settle issues before start of construction in a given time frame and that the upper riparian can play games by giving incomplete data or delay provision of data. It also shows that the institution of a neutral expert (N.E.) vested in one Engineer with freedom to interpret legal matters without a system for checks and balances is not appropriate.

The following lessons can be drawn from the case of Baglihar Hydro Electric Plant:

1. Disputes can be averted if parties adhere to mutual agreements or treaties in letter and spirit.
2. Upfront resolution of the issues rather than initiating unilateral start of a built project can have many dividends: save time, curb acrimonious public sentiments, inculcate mutual trust and avoid foregoing economic benefits due to delays. The Baglihar project was conceived in 1992 but was commissioned in 2007/2008 , after 16 years!
3. Parties with historical baggage of mistrust tend to take positional stands and find it very difficult to adjust/compromise their positions during official bilateral dialogues even though some of the issues/objections would have a trivial effect on the project design. For example, in this case the adjustments finally decided by the Neutral Expert in respect of pondage, dam height and level of power intakes were only marginal.
4. In the case of deadlock in bilateral negotiations, recourse to a third party be resorted to as soon as possible, as it yields final resolution of the dispute (e.g. Indus Waters Treaty was arrived through the good offices of the World Bank, and the Baglihar design issue was resolved by a N.E and legal matters were resolved by the Court of Arbitration).
5. Trust, once eroded, takes time to be reestablished (e.g. stoppage of water by India in 1948 was a major set back to mutual trust). Pursuit of mutual cooperation and compromise in good faith becomes difficult in the backdrop of mistrust.
6. The media plays an important role in making public perceptions. It is ambitious to expect no media twist in disputes with a backdrop of general mistrust. The best recipe to avoid bad blood and the wrong public perceptions is that the issues be resolved in an expeditious manner. There should be a time frame for the bilateral efforts, following which third party referral must be made. Protraction in the period of addressing objections is harmful.