The Baghlihar Verdict

The POST, Sun, February,18, 2007.

Pervaiz Iqbal Cheema

On Feb.12, the World Bank appointee Prof. Raymond Lafitte announced his verdict on the Baghlihar dispute. Both India and Pakistan seem to have interpreted the verdict as their victory. In many ways it is encouraging to realize that the verdict has generated a win-win situation for the two countries. The Baghlihar dispute started when the Indians supplied information about their intended hydroelectric project on River Chenab in May 1992. The plant envisaged construction of 317 meter long and 144.5 meter high concrete gravity dam with gross storage of 0.32  Million Acre Feet (MAF) and Live Storage of 0.03 Million Acre Feet. In stage-1 of the project, three units of 150 Megawatt each would be utilizing 15475 cusecs of water. In the middle of the dam the Orifice type gated spillway is provided with crest level at elevation of 808 meter.

Having thoroughly studied the supplied information Pakistan raised objections regarding the design of the Orifice type gated spillway, excessive pondage/operating pool behind the dam, high water seal at the intake of the power tunnel and the excessive freeboard provided in the design of the dam. Since May 1992 series of meeting took place between the Indians and the Pakistanis but they were unable to resolve the issues involved. Unable to convince the Indians, the Pakistanis eventually invoked the dispute resolution provision of the Indus Water Treaty and requested the World Bank to appoint a Neutral Expert. The World Bank appointed Prof. Lafitte (A Swiss Professor) as the Neutral Expert on 10^th May 2005. On the basis of available information, the Pakistanis submitted their interpretation on 14^th August 2005. India filed its interpretation on 23^rd September 2005. After having gone through the differing interpretations of the two sides the Neutral Expert decided to inspect the site himself which he did on 7^th October 2005. The Neutral Expert raised some questions and sought explanations from both parties. Many meetings took place subsequently. 

Having heard the arguments and counter arguments from both sides the Neutral Expert gave his verdict on Feb.12, 2007. The Neutral Expert seemed to have agreed to three of the Pakistani objections but the fourth one has been decided on the basis of international practice. Prof. Lafitte upheld the Indian view about the spillway gates referring them in conformity with the international practices.  The verdict also recommended that the free board be reduced from 4.5 meters to 3 meters, the power plant intakes located at 821 meters rather than the Indian design of 818 meters, and the pondage be reduced from 37.772 MCM to 32.56 MCM. 

What is perhaps most interesting and significant about the verdict are its two aspects. First the verdict seems to have provided for a win-win situation for both parties. Both India and Pakistan are claiming victory. While claiming victory the Pakistani Minister for Water and Power said that Islamabad reserved its right of appeal against the part of verdict that was decided on the basis of international practice. He also stated that the expert should have gone strictly by the provisions of the Indus Water Treaty of 1960  and not by international practices. While claiming victory the Indian Minister of  Water Resources Prof. Saifuddin Soz also stated that there would be no loss of power generation from the reduction in dam’s height. 

Given the incumbent nature of the slowing moving peace process, any decision on the disputed issues that are slowing down the process is likely to generate positive vibes. It really does not matter how the two parties interpret the verdict, one thing is certain that Prof. Lafitte seems to have thoroughly studied the nature of Indo-Pak relations and focused how to resolve the dispute in such a way that both are satisfied. The victory claims by both parties certainly reflect the advent of a win-win situation. Undoubtedly Prof. Lafitte has done a reasonably good job. 

Second significant aspect of the verdict is the effective application of dispute resolution mechanism that has been provided by the Indus Water Treaty. Given the hostile relationships experienced by India and Pakistan over so many decades, the smooth working of the Indus Water Treaty was appreciated by many. Periodically emerging minor irritants have been effectively dealt by the Indus Commission but a major dispute was hitherto not tested. While there are other water disputes like Wullar Lake Tulbul Navigation Project and the issue of Kishanganga Dam, the dispute over the Baghlihar Dam was the first one to be submitted to a World Bank appointed neutral expert. 

Since both parties accepted the appointment of a neutral expert in accordance with the provisions of the Indus Water Treaty, the acceptance of verdict is likely to further strengthen the dispute resolution mechanism of the treaty. It is not too far fetched to assume that such a verdict facilitates and would encourage the two parties to submit other similar types of disputes to some kind of arbitration or neutral evaluation. Over the years India had demonstrated some kind of aversions for submission of disputes to a third party’s evaluation. For example, so many times it has been suggested in various quarters that a third party should be brought in even for a complex dispute like the ongoing Kashmir dispute. 

It has become abundantly clear that the services of a third party could constructively help India and Pakistan to resolve their outstanding disputes. Admittedly not only the Indus Water Treaty was brokered with the help of a third party and the treaty had also an inbuilt conflict resolution mechanism which facilitated the process while other issues are still waiting for an agreed framework. However one cannot deny the usefulness of third party’s involvement. The verdict also highlights that strict adherence to the treaty could effectively block the periodically surfacing of undesired impediments. Being a lower riparian Pakistan’s sensitivities about any obstruction that could temper with flow of water in the rivers allocated to Pakistan is indeed comprehensible. 

The verdict also sets guideline for all future somewhat similar disputes. If permissible technicalities are given due consideration prior to the initiation of a project and extensive consultation is undertaken at early stages, the chances for the emergence of dispute are effectively checked. If this verdict is to be taken as a guideline for similar disputes, India would be well advised to not only to opt for intensive consultations with Pakistan for other similar projects but also comply with technicalities stipulated in the treaty. 

The win-win situation that has emerged as a result of the current verdict on the Bghlihar dispute should encourage both parties to focus on other disputes and issue with all the sincerity they can muster. One need not to stress again that concerted but sincere efforts need to be employed with regard to other ongoing disputes and issues if the incumbent peace process is to be strengthened. The desired irreversibility of the process is heavily dependent upon more and more efforts by both the insiders and the outsiders. All agreements, however small and insignificant they may be, tend to take a toll of existing distrust and strengthen the peace process.

The writer works for Islamabad Policy research Institute.