India Times (February 16 2005), had reacted to Pakistan's reference to the World Bank as 'premature, as both sides had achieved some degree of convergence on technical details during the last round of talks.' World Bank appointed the Neutral Expert (NE), who has delivered the Final Report that contains seven chapters, including Introduction, Points of Difference and the sixth one contains Determination on the points of difference.
NE'S DETERMINATION IS BRIEFLY SUMMARIZED AS UNDER: On maximum design flood following the principle that design should reduce the risk to a value 'as low as reasonably achievable' the professor has agreed with India.
On the point of spillway the NE has determined that 'in conformity with the state of the art, the conditions at the site require a gated spillway, because 89% of such spillways are gated the world over. Here too the expert has agreed with India.
On sluice spillway NE considers that Indian design, including five outlets have dual functions if sediment as well as flood control and 'in conformity with the international practice and the state of the art, proposed outlets are consistent with sound and economical design and satisfactory construction and operation of the works.
On the dam crest the NE's determination is that freeboard above the full pondage level of 4.50m is not at the lowest elevation (India's proposal) and should be lower by 3m and therefore Indian design of 844.5 should be brought down to 843. NE also recommends a 1.20 metres high parapet wall on the dam crest.
On Pondage NE holds that values for maximum Pondage stipulated by both India and Pakistan are not in conformity with the letter, the object and the purpose of the Treaty. His determination is that the maximum Pondage should be fixed at 32.56M and the corresponding Dead Storage Level at 836.
On the level of power intake the NE considers the level stipulated by India not to be in accord with the Treaty. He recommends that all possible structural measures should be taken to limit the circulation of flow within the intake structure and in its vicinity, especially avoiding sharp bends in inside of the intake structure or in the vicinity.
It has taken the Expert two years including the time required for the process of his appointment and the supply of information by the parties to come to a finding. The decision will make both the countries unhappy because the NE has not accepted any one country's point of view lock, stock and barrel and that is precisely the reason that the decision should be considered fair.
This once again proves that the Indus Water Treaty is alive and well in spite of the doomsayers that it was dead and buried. This also proves once again that without a third party intervention India and Pakistan are incapable of resolving an issue. India has always resisted a third party intervention. That ensures a stalemate. But then they have the good grace of accepting a third party award whether it is Indus Water Treaty, Rann of Kutch or Tashkent. Kashmir is another matter though.
PAKISTAN HAD APPREHENSIONS THAT THE PROJECT WILL CAUSE THE FOLLOWING:
-- The structure will provide India the capability to manipulate the flow of water to Pakistan's disadvantage.
-- Complete stoppage for a continuous period of 27 or 28 days during December, January and February would adversely affect agriculture and other requirements at Marala head works.
-- The project can also lead to inundation of the area above Marala head works due to the sudden synchronised releases from Dul-Hasti, Baghlihar and Salal reservoirs.
AND THE OBJECTIONS OFFICIALLY COMMUNICATED TO INDIA REFLECTING THESE CONCERNS ARE:
(i) "The work themselves appeared to be capable of raising artificially the water level beyond the full pondage level specified in the design and would contravene the provisions of Paragraph 8 (a) of Annex D to the Treaty.
(ii) "The pondage in the operating pool being 37.722 million cubic meter exceeds twice the pondage of water level.
(iii) "The site was suitable for an ungated spillway and, therefore, a gated spillway should not be provided. This contravened Paragraph 8 (e) of Annex D and;
(iv) "The intake for the turbine had not been located at the highest level as required vide Paragraph 8 (f) of Annex D to the Treaty."
Under the Treaty India can make only "Non-consumptive uses", which means any control or use of water for navigation, floating of timber or other property, flood protection or flood control, fishing or fish culture, and other like beneficial purposes so that the water undiminished in volume within the practical range of measurement remains dormant in or is returned to the same river or its tributaries. Such use does not include agricultural use or use in the channels of hydroelectric power.
The project is divided into two phases and each phase is designed to produce 450 MW power. The Project envisages constructions of dam on River Chenab near the place known as Baglihar with storage of 321,000 Acre Feet of which 291,000 Acre Feet is dead storage capacity. Live storage, also termed as Pondage (Operational Pool), is 30,400 Acre Feet. This Pondage is required to supplement the discharge during low flow period. This is what Pakistan is against.
India had insisted on bilateral discussion under Article VIII whereas Pakistan saw no point in series of sterile discussions when the project was continuing apace.
Article IX of the Indus Water Treaty provides for dispute resolution and involves third party involvement, which India religiously avoids in settling any dispute with any of her neighbours.
In case the Neutral Expert determines that in his opinion the difference or a part thereof should be treated as dispute, then the dispute will be deemed to have arisen, which will be settled in accordance with paragraphs 3, 4 and 5 of the same Article IX.
Annexure F to Article IX (2) relates to Neutral Expert. Part I deals with 23 questions that can be referred to the Expert, Part II to his appointment and procedure and Part III to Expenses. Para 11 of Part II is crucial to any of the two countries wishing to carry on the controversy any further. It reads: 'The decision of the Neutral Expert on all matters within his competence shall be final and binding, in respect of the particular matter on which the decision is made, upon the parties and upon the Court of Arbitration established under the provisions of Article IX (5).
And the clauses relating to the arbitration can be invoked only if the Expert has informed the two governments through the Indus Water Commission that 'in his opinion, the difference, or a part thereof, should be treated as a dispute.' In this case the Expert has not declared any part of the difference as a dispute and therefore no country can without violating the treaty seek recource to the provision of arbitration. So there the matter ends. Each country can declare victory and crow at the top of their voices that the Expert has upheld its viewpoint and proved the other side wrong.
Professor Raymond Lafitte has quoted an 18th century philosopher 'An international treaty that gives one party all that it wants cannot be a good treaty.' Same with the determination.
Pakistan's apprehensions as a lower riparian will continue to keep the two commissioners busy in the years to come besides engaging their attention on other ongoing projects like Uri-II on River Jhelum, Pakal Dul and Burser on a tributary of River Chenab and finally Kishanganga on River Neelam.
Pakistan may consider reference to international practice as a breach of the Treaty but the NE has said that is how the treaties are to be usually interpreted. He took into account Articles 31 and 32 of the Vienna Convention on the Law of the Treaties. Law experts of the World Bank and Pakistanis were associated in the proceedings.
Both the governments will try to sell it as their victory. Even if they disagreed the Treaty does not provide an escape. Article IX of Indus Water Treaty 1960 provides for the Settlement of Differences and Disputes for questions arising between the parties concerning the existence of any fact which if established, might constitute a breach of this Treaty.
But this is a victory of common sense. If the two countries changed their mindset they could resolve most of the issues by themselves. But the subcontinental habit of digging in their heels overcomes any sensible approach to resolution. On three points the expert has agreed with Pakistan's view and with India on the remaining one point.