Resolving Pak-India water dispute

The recent press reports suggest that the Indus Water Commissioners of both India and Pakistan have amicably resolved their dispute over the Baglihar Dam in a three-day meeting held on May 30 and June 01 at New Delhi. The process of filling of the dam in 2008, not being in accordance with the Indus Waters Treaty 1960, had adversely affected the flow of water in Chenab. It is also heartening to know that the two countries have for the first time settled the issues of Uri-II (Jehlum) and Chutak hydel power projects in Jammu and Kashmir, at the level of Permanent Indus Commission. But the differences on the design of Kishenganga and Nimoo Bazgoo hydel power plants remain unresolved and Pakistan has decided to approach the International Court of Arbitration in case of the former project. There is no gainsaying the fact that the Indus Waters Treaty (IWT) has worked satisfactorily for a period of almost five decades, despite wars and prolonged standoffs. The first important issue that arose between India and Pakistan which was successfully resolved under the Treaty was the Indian project of Salal hydroelectric plant on the Chenab River. After protracted negotiations bet-ween the commissioners of the two countries, and also at the level of foreign secretaries, for about four years (December 1974 to April 1978), the matter was amicably resolved. India agreed to make changes in the project design and resul-tantly the Salal Agreement was signed in April 1978. In contrast, the Wuller Barrage is the most controversial water project. According to the Indian government, the purpose of the barrage is to construct a control structure in order to improve the navigation in River Jehlum during winters for transportation of fruit and timber between Srinagar and Baramula. Pakistan argues that this project is a major breach of IWT and India may undertake its construction only after the design has been approved by it (Pakistan), as its storage capacity should not exceed 10,000 acre feet while the present capacity of Wullar Barrage is 300,000 acre feet. Although India has not abandoned the project, however, the work on the barrage is presently suspended. In addition, the 450-megawatt Baglihar hydroelectric project has remained a thorny issue for long partly because of Indias reluctance to provide full information and partly because of Pakistans inordinate delay. In 2007, Professor Raymond Lafitte of Switzerland, the neutral expert appointed by the World Bank to address the issue between the Governments of India and Pakistan concerning the construction of the Baglihar Dam on the Chenab River, gave his final decision that was binding on both countries. In his decision, Lafitte asserted that the height of the dam, which was being constructed by India, was in contravention of IWT, yet he rejected Pakistans concerns about the gated spillways. Later, the procedure of filling of the dam gave rise to new concerns that, however, have been addressed at the recent meeting. The Kishenganga project is located about 160km upstream from Muzzafarabad and involves the construction of a dam in Gurez Valley from which a 22km tunnel dug south through the North Kashmir mountain range will divert the Kishenganga waters to the Wullar Lake at Bandipur. A power house with the capacity of 330MW will be built near Bunkot. After completion, the project is expected to reduce the flow of the Neelum and decrease the power generation capability of Pakistans proposed 969MW Neelum-Jhelum hydropower project by more than 20 percent. The Neelum-Jhelum project is expected to be completed by 2016. Pakistan first received reports about Indias Kishenganga project in 1988. Subsequent to Pakistans objections and also keeping in mind the submergence of the entire Gurez Valley because of the height (77 meters) of the dam coupled with environmental concerns, the Indian authorities reviewed the project and converted it to a run-of-river project with a height of 37 meters only. This change would ensure that the storage capacity would reduce drastically from about 174 million cubic meters to under eight million cubic meters, which is less than maximum pondage of 8.87 million cubic meters permissible under the IWT. However Pakistans concern is that despite changes in the design of this project, it is gross violation of IWT because the water will not be transferred to the same tributary i.e. Neelum, rather the diversion will flush Wullar Lake which is not allowed under the Treaty. Article III of the IWT grants Pakistan the exclusive right over the western rivers and bars India from building any storage or undertaking any man-made obstruction on these rivers to the disadvantage of Pakistan. Annexure-D of the Treaty states: Where a Plant is located on a Tributary of The Jhelum on which Pakistan has any agricultural use or hydroelectric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent existing agricultural use or hydroelectric use by Pakistan on the former Tributary would not be adversely affected. India, on its part, has claimed that the Neelum-Jhelum project came up much after it had first intimated Pakistan about its plans concerning the Kisheng-anga project in 1994. However, Pakistan has remained steadfast on its position claiming that India envisaged the project in late 1980s. Therefore, as per the principle of prior appropriation, Pakistans project should be accorded priority. Pakistan should learn a lesson from the Baglihar issue. It must pursue the judicial remedies available under the IWT to resolve the Kishenganga imbroglio without any demur, so that the peace process could progress on all fronts. Pakistan should also adopt a comprehensive strategy to overcome the impending water crisis which can, to a large extent, be attributed to global warming and mismanagement in the utilisation of water resources The writer teaches Constitutional and International Law at the Punjab University Law College.

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