Troubled waters

Print edition : June 08, 2002
NAUNIDHI KAUR

THE hardening of stands on the part of India and Pakistan has had an adverse impact on the annual Permanent Indus Commission (PIC) meet. The three days of talks, which started on May 29, were marred by disagreement. Matters reached breaking point when the six-member Pakistani side threatened to seek the intervention of a neutral expert if the dispute over the Baglihar hydroelectric project in Jammu and Kashmir was not resolved. The meeting ended with Pakistan setting a three-month deadline for the Indian side to meet its demand of a field visit to the project site. For over three years now Pakistan has been demanding field visits to the site. The Indian side remained non-committal. A crisis looms with the inspection remaining suspended.

The PIC, set-up under the Indus Waters Treaty (IWT) signed in 1960, meets alternately in India and Pakistan, in a cordial atmosphere. Both countries exchange documents and data to facilitate and continue their water-sharing arrangements.

Pakistan's argument is that the Baglihar project violates the terms of the IWT by providing for submerged spillways with gates. These spillways allow India to increase the storage capacity of the proposed project to 1,64,000 acre feet, far more than that allowed for India under the Treaty. Pakistan says that if these spillways are allowed to be set up, it would lead to an acute water shortage in that country. Inherent in this argument is the fear that once the spillways are built they could be mal-operated by India, leading to serious fluctuations in water supply in the summer months of December-February.

India insists that it is well within its rights to set up the project, which meets all the criteria stipulated under the IWT. India says that it informed Pakistan about the 450 megawatt project on the Chenab in Doda as early as 1992.

The Pakistan side, led by Commissioner Shiraz Jamail Memon, raised the Baglihar issue on the second day of the meeting. A member of the Indian side said: "The delegation emphasised that it would settle for nothing less than a field visit. The Indian Commissioner, A.C. Gupta, held the view that Pakistan should first get back to India on the details which had been sent to it about changes in design made by India. India has also supplied Pakistan data on other technical aspects of the project. The Pakistani side refused to climb down from its demand of a field visit, and threatened to take the issue to the second level of approaching a neutral expert."

Pakistan says that avoidance of meetings and tours by India violates Article VIII (4) (c) (d) and Article VIII (5) of the IWT. Article VIII (4) (c) (d) stand for cooperative arrangements, including a general tour of inspection once in five years to ascertain facts connected with various developments and works on the rivers. Clause (d) stipulates a tour of inspection of such works or sites in the rivers as may be considered necessary to ascertain the facts connected with those works and sites. Such a tour would have to be undertaken on the request of either Commissioner. Article VIII (5) provides for an annual meeting besides any urgent meeting if either of the two commissioners requests one.

The Indian side put forward the view that the tense situation and the military build-up along the Line of Control would make it impossible to conduct field visits.

Pakistan's stand vis-a-vis Baglihar had in fact hardened even before the meeting. At a press conference held on May 6 in Islamabad, its Foreign Office held that if India did not allow an inspection of the site, Pakistan would approach an arbitrator as per the procedure laid down in the Treaty. Earlier on February 16, Pakistan alleged a virtual suspension of the Treaty by India. This was after India suspended inspection by Pakistani engineers of the project site on December 24, 2001.

Now Pakistan is threatening the use of Article IX, which lays down the procedure to be followed in case of a disagreement. The Article states that if the matter cannot be decided by the Commissioners it can be taken to a neutral expert. It gives a line of procedure to be followed before the matter is taken to a neutral expert. This includes the first Commissioner notifying the second Commissioner of his decision to take the matter to a neutral expert. Such a notification would state clearly the paragraphs of the Treaty that pertain to the differences and contain a statement of the differences on a point-to-point basis.

In case of a dispute, the Treaty also provides the option of the formation of a seven-member court of arbitration. Such a court would consist of two members each of either party and three, including the chairman, from a list of six persons given in the Treaty. For the selection of the chairman the list includes the Secretary-General of the United Nations or the President of the International Bank for Reconstruction and Development. For the selection of the engineer-member, the list includes the president of the Massachusetts Institute of Technology, Cambridge, United States, or the rector of the Imperial College of Science and Technology, London.

ANOTHER point of contention related to Pakistan's attempts to bring the 390 MW Kishenganga hydro-electric project within the ambit of the discussions. India dismissed it saying that it was "never on the agenda, hence cannot be discussed". Kishenganga has been on Pakistan's agenda since 1992. According to Pakistan, the project, on the Neelam river, affects its own Neelam-Jhelum power project. At the May 30 meeting, the Pakistan side repeated its allegation that India was not prepared to discuss the issues it had raised. Therefore it, "sought to take up the issue under relevant articles of the treaty for settlement of differences and disputes," said an official statement from Pakistan.

Ahead of the talks, there was some hullabaloo over the prospects of the Treaty being abrogated. Minister of State for Water Resources Bijoya Chakravarty denied on the first day of the meet of any such move. He said that India was committed to its international treaties and that the meeting of the Joint Commission was being held to honour that commitment.

After all, the IWT was brokered by the World Bank. There is no provision in it under which any party could take a unilateral decision on it. Even if India were to do so it has no storage capacity on the rivers designated to or flowing to Pakistan. For India to set up storage capacity on the three west-flowing rivers of the Indus, the Jhelum and the Chenab, it will take years.

The IWT has often been taken up in international circles as a case study of an agreement between two adversaries that has withstood three wars. It constitutes one of the few successful settlements of a major river basin dispute. Its model of negotiations can be applicable for any similar situation in the subcontinent.

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