Pakistan media must launch a sustained offensive because construction of Indian dams on Western Rivers is posing direct threat to Pakistan’s National interest. Following suggestions are forwarded for domestic and international audience:-

• Water issue between India and Pakistan needs to be highlighted as a potential conflict area due to its strategic implications for Pakistan.
• International community must be requested and insisted to stop assisting and supporting Indian projects on Western Rivers unless the issue between India and Pakistan is resolved.
• Media must motivate the people of Azad Jammu and Kashmir to raise voices against Indian Waters aggression.

Background

The Indus Basin comprises the River Indus and five main rivers, namely Jhelum, Chenab, Ravi, Beas and Sutlej. The total area of the Indus Basin is roughly 450,000 square miles, most of which lies in Pakistan. In Pakistan there exists one of the most highly developed canal irrigation system and approximately 37 Million Acres of land is dependent on the flow of waters of the Indus System of Rivers.

At the time of independence, though major portion of the Indus Basin (31 Million Acres) formed part of Pakistan, however the control of most of existing structures on the rivers of Indus Basin fell into the Indian hands, being upper riparian. The consequences of such an unfair demarcation surfaced soon after when India started interfering with the waters flowing downstream by stopping waters on rivers Ravi and Sutlej (irrigating 1.6 Million Acres in Pakistan) from 1 April 1948.

The stress, which subsequently mounted in the region, was felt around, was felt around the globe and in 1951 World Bank offered its good offices for resolution of the issue. The efforts ultimately culminated into an agreement between Pakistan and India in the shape of Indus Waters Treaty signed in 1960. As per Indus Waters Treaty, India got the complete rights on the Eastern Rivers (Ravi, Chenab, and Beas) whereas Pakistan was given the rights on Western Rivers (Indus, Jhelum, Chenab) with some specific provisions for use of water by India from these rivers.

The Indus Waters Treaty 1960 is being implemented through and institutional arrangement, that is, Permanent Indus Commission comprising of two Commissioners, one from each country. Currently, the Commission is involved in resolution of three major water disputes, which include Baglihar Hydroelectric Plant, Kishenganga Hydroelectric Plant and Wuller Barrage.

Baglihar Hydroelectric Plant

The information about Baglihar Hydroelectric Plant, located on River Chenab, was communicated by India in 1992. Failing to resolve the issue bilaterally at the Commission and government levels, the issue of Baglihar Hydroelectric Plant was referred to the World Bank upon which the determination by a Neutral Expert was rendered on 12 February 2007. The Neutral Expert upheld Pakistan’s objections on freeboard, pondage and level of power intake. However, the Neutral Expert’s determination regarding location of spillway gates and concession to India to draw-down 17 meters below the Dead Storage Level surpassed not only his given mandate, but also was neither an issue nor a question presented to the Neutral Expert. Pakistan thus reserves the right to refer the determination regarding “draw down”.

The Baglihar Hydroelectric Plant was commissioned in 2008. During its initial filling, India again violated the clauses of the Treaty by not filling the dam in stipulated timeframe and by not ensuring requisite inflow at Marla Headworks of Pakistan. The drastic reduction of inflow at Marla had following adverse impact on Pakistan:-

• Closure of Marla – Ravi Link (MRL) Canal, which resulted in non-availability  of irrigation water for paddy crops in Marala Command Canals area covering over 10,000,000 acres of land.
• Reduced filling of Mangla Dam due to excessive drawing of water from it to cover the deficiency of waters at Marala Headworks.
• Reduced filling of Mangla Dam resulted into acute shortage of water for Rabi (Autumn / Winter) Crops.

Kishenganga Hydroelectric Project

The Kishenganga Hydroelectric Project on the River Neelum (called Kishenganga River by India) is located near the Line of Control in Indian Occupied Kashmir (IOK). The project also envisages diversion of River Neelum. The water of River Neelum (Kishenganga) is reserved for Pakistan’s Neelum-Jhelum Hydroelectric Project, work on which started in 1989.

The diversion of water in Kishenganga project will have following adverse effects:-

• Water flow at Neelum-Jhelum project will decrease and generation capacity of Neelum-Jhelum Project will reduce by 20%.
• Will have adverse effects on ecology of the area especially fauna and flora due to diversion of water from its original course.
• Will adversely affect agriculture in Neelum Valley and Muzaffarabad District of Pakistan.

The water of River Neelum diverted towards Wullar Lake would be consumed within Wullar Lake and will not go in River Jhelum as India is also planning to construct a barrage on Wullar Lake.

As the Commission has not been able to resolve the issue bilaterally, the India is being informed about Pakistan’s intention of referring the case to the Court of Arbitration for its resolution as envisaged in the Treaty. Names of the arbitrators have been finalized in the inter ministerial meeting held on 7 May 2010 at the Ministry of Waters and Power and will be processed shortly.

Wullar Barrage / Tulbul Navigational Project

The Wullar Barrage Project is located on Jhelum and involves artificial raising of water in complete contradiction to the Indus Waters Treaty. The basic idea behind the Wullar Barrage is that India wants to create additional storage in the Wullar Lake, which would be utilized to augment the water flow to their winter season, when the inflow decreases. The construction of Wullar Barrage would provide India the control over River Jhelum which they may use to deprive Pakistan of water of River Jhelum during winter seasons.

Other Issues Related to Treaty Violation by India

• India is obliged to provide information of their projects to Pakistan six months before the start of construction. In all instances, India has started work without providing requisite information. Also, the information, whenever provided, is normally incomplete.
• India stalls resolution process on the plea of more discussions at the level of the Commission while the construction continues. This leads towards a fait accompli situation when Pakistan approaches for resolution of issues to the institutions (World Bank / Court of Arbitration).
• India terms the flow of water recorded by Pakistan as under reported. Without any prejudice to the stand taken, Pakistan has suggested the installation of Telemetric System for measurement of flow of Indus System of Rivers, particularly on the Western Rivers to ensure the transparency in recording the flow of water. India has resisted its installation in the Indus Water Commissioner level meeting held from 27-30 March 2010 at Lahore.
• Indian are cutting tress in IOK, thus creating the problem of water shed which is directly affecting Pakistan. India has not responded positively on any issue so far, including water shed in IOK.

In addition to the above India has disregarded Environmental Impact Assessment (EIA) with regards to the construction of their Hydroelectric Projects which is directly affecting the IOK, Pakistan and India itself.

Future Projects

Besides above mentioned disputes, a number of hydroelectric projects of various capacities are being planned by India on the rivers reserved for Pakistan to further choke the water flow. These include 24 projects on River Chenab, 52 on River Jhelum and 18 on River Indus. Thus Pakistan’s agriculture and hydropower generation is under further threat. Due to the sensitivity of the issue and its impact on Pakistan, the issue if not resolved could lead to confrontation.

BRIEF – MAJOR WATER ISSUES WITH INDIA

Baglihar Hydroelectric Plant

1. In May 1992, India supplied information about Baglihar Hydroelectric Plant located about 147 kilometers upstream of Marala Headworks on River Chenab in District Doda, IOK. The project envisaged the construction of a concrete gravity dam with a gross storage capacity of about 0.32 MAF. The project was to be constructed in two stages. In Stage-I, it would produce 450 MW power. The water delivered into power tunnel will return to the Chenab River after producing power in an underground power house. A similar power tunnel would be constructed during Stage-II to produce another 450 MW power.
2. Pakistan raised objections on the design of the Plant. The Points of Difference on the design of the plant pertained to four features of the dam. Pakistan’s view was that:-
   1. The free board for the dam is excessive and provided capability to India for raising artificially the water level in the operating pool above the full pondage level (so its free board should be reduced).
   2. The location of intake for the power plant is not at the highest level as required in accordance with the provisions of the Indus Waters Treaty 1960 (so it should be raised).
   3. The pondage in the operating pool; determined by India was excessive (so it should be reduced).
   4. The spillway gates below the Dead Storage Level is not located at the highest level. Pakistan’s view was that spillway was not necessary. Either an un-gated spillway or a surface gated spillway could be provided with the bottom of the gates at the highest level. Moreover, low level gates would provide India a manipulatable capacity of about 0.164 MAF of water storage behind the dam, which when exercised would reduce/stop water of River Chenab reaching Marala Headworks for about 26 – 28 days.
3. As bilateral negotiations between the two countries were not making any headway and the construction work of the project continued uninterrupted, Pakistan was compelled to seek World Bank’s intervention, as stipulated in the Treaty, to appoint a Neutral Expert. Initially, India resisted the appointment of a Neutral Expert, however, the World Bank, upholding Pakistan’s stance, appointed a Neutral Expert in May 2005.
4. On 12 February 2007, the Neutral Expert gave his Final Determination on the Point of Differences raised by Pakistan. The decision made by the Neutral Expert upheld Pakistan’s contention that India’s design was not in conformity with the design criteria on all the four design features of the dam. The Neutral Expert made following specific recommendations for the changes:-
   1. Free Board – The Neutral Expert found India’s calculation on Free Board as inaccurate. He accordingly directed India to reduce the free board from 4.5 meters to 3 Meters (33% reduction).
   2. Level of Power Intakes – The Neutral Expert determined that elevation of intake stipulated by India was not at highest level as required by the Treaty. He decided that the power intake should be raised by 3 meters.
   3. Pondage – He determined that the calculation methodology used by India was not in conformity with the Treaty. He accordingly directed that India should reduce the Pondage from 0.030 MAF to 0.026 MAF.
   4. Spillway – In response to location of spillway gates, he agreed that, in accordance with the provisions of the Treaty, India’s design and analysis is incorrect. In his decision he concluded that India is neither correct in its analysis nor in its calculations. The results of the model tests are also not “representative of reality” and are “illusory”. However, he suggested no change in locations of gates of the spillway relying on international practice and state-of-the-art.
   5. Draw-Down – The Neutral Expert also suggested draw-down of reservoir level (17 meter) below the Dead Storage Level.
5. On Neutral Expert’s decision, Pakistan’s view is that he should have gone strictly by the Indus Waters Treaty as any other practices are not relevant. The drawing down of reservoir was neither an issue raised by India nor it was a question presented to the Neutral Expert.
6. As regards Neutral Expert’s decision on the gated spillway, it is felt that the Neutral Expert has not limited himself to the confines of the Treaty. Furthermore, the Neutral Expert allowed lowering of water level in the pond below Dead Storage Level (DSL), which is prohibited in the Treaty. The matter was discussed with legal experts (Prof. James Crawford, Samuel Wordsworth and Barrister Feisal Naqvi). They proposed to take action on Neutral Expert’s decision for “draw down” of water “for maintenance” purpose, however, expressed to take up this issue with India through the Commission as an “abstract case”.
7. Various discussions were held to decide about filing the appeal against the decision of the Neutral Expert in Court of Arbitration. To firm up views on way forward, following questions were examined:-
   1. What is the substantive effect of location of gates on Pakistan?  Location of gates below DSL will enable India to control the flow of Western Rivers. Thus India will be able to deny water for agriculture or cause floods. According to available information, India can construct at least eight additional run of river plants over Chenab and potentially 8 – 10 on Indus and about the same number on Jhelum rivers. Indians are most likely to replicate the spillway design features on these projects. Thus, they will ultimately have significant control capacity, through low level gates.
   2. What are the merits/demerits of not challenging interpretation that allows draw down below DSL?     If Pakistan does not challenge, it would mean acceptance of the design feature and interference in the flow of Western Rivers by India in contravention to the Treaty. In posterity it will be seen as surrender of Pakistan’s rights. If we challenge we may win or lose. If we win it is a gain; if we lose we are saddled with the same design features as supported by Neutral Expert but with protest. It will not be ever called “surrender”.
   3. Where should we challenge; before another Neutral Expert or Court of Arbitration?   If we decide to challenge, then the best forum would be Court of Arbitration as another Neutral Expert may be driven by engineering considerations rather than treaty considerations.
   4. Are there sufficient merits in the case? Will we win or lose?    According to lawyers, Pakistan have a good case that water cannot be drawn down below DSL on Run of River projects on .Western Rivers and the arguments to prove it otherwise, based on the plea of maintenance, will not hold ground. However, no guarantee for win or lose can be given.
   5. What if Pakistan loses or wins?    Initially, India may launch a propaganda that Pakistan is trying to circumvent the decision of Neutral Expert. If Pakistan loses, India will celebrate it as their victory on moral and technical grounds. Pakistan may be projected as an unreasonable protester and an obstructer of water development. Back at home, it may be seen as a poorly contested case. If we win, we will be seen (in Pakistan) as a protector of Pakistan’s rights and Indus Waters Treaty. India will not be legally allowed to make any future project based on this specific spillway feature. As India will not be allowed to draw water level below DSL, this will also apply to Baglihar Plant.
8. Lawyers and Experts were of the view that Pakistan should go to Court of Arbitration as it is a matter of International water rights which is the lifeline of Pakistan.
9. The Baglihar Hydroelectric Plant site was inspected by PCIW on 30 July 2008 to ascertain correct implementation of orders of Neutral Expert. The project authority and the Indian Commissioner informed PCIW that they intend to commission the project for its first turbine in September/October 2008. However, basing on earlier media reports about commissioning of the plant, PCIW in May and June 2008 asked Indian Commissioner to provide the schedule for the initial filling of Dead Storage, which was not provided.
10. Reduction of Inflow at Marala
    1. The Paragraph 18 and 18(c) of Annexure E of the treaty specifically provides rules for the initial filling of plant, which says:-“The annual filling of Conservation Storage and the initial filling below the Dead Storage Level, at any site, shall be carried out at such times and in accordance with such rules as may be agreed upon between the two commissioners. In case the Commissioners are unable to reach agreement, India may carry out the filling as follows:-if the site is on River Chenab, between 21st June to 31st August at such rate as not to reduce, on account of this filling, the flow in the Chenab Main above Marala to less than 55,000 cusecs.”
    2. The Indian Commissioner through his letter dated 7 August 2008, without giving schedule of filling, informed that the initial filling of Baglihar Plant would be carried out from 10 – 31 August 2008 and also assured that the flow will not be reduced at Marala below 55,000 cusecs.
    3. However, on 19 August 2008, Punjab Irrigation and Power Department reported about reduced flow at Marala. PCIW immediately took up the matter with Indian counterpart in writing and through telephonic conversation. The Ministry of Foreign Affairs was also appraised about the situation since the reduced flow was continuing. PCIW also lodged a strong protest with the Indian Commissioner during his visit to the Neelum Valley in AJK and had a meeting on 28 August 2008, at the sidelines of the Tour. Indian Commissioner assured to look into the matter on return back to India.
    4. As per record, from 22 August to 8 September 2008, the inflow at Marala remained less than 55,000 cusecs. Even on 22 August and 3 September it considerably reduced to 20,000 and 29,000 cusecs, respectively, which indicates that initial filling continued even after 31 August 2008.
    5. Keeping in view the continuous reduced flow at Marala, PCIW kept on reminding the Indian Commissioner on daily basis about the violation of Treaty provisions and also asked for a special meeting of the Commission and site inspection of Baglihar Plant at the soonest. A Note Verbale followed by Demarche was also issued by the Ministry of Foreign Affairs to Indian High Commission at Islamabad.
11. Violations Committed by India. As per Paragraph 18 and 18(c) of Annexure E of Indus Water Treaty 1960, India has committed following gross violations of the treaty:-
    1. Failed to provide initial filling plan to PCIW.
    2. Did not ensure continuous inflow of 55,000 cusecs at Marala.
    3. Carried out initial filling even after 31 August 2008.
12. Impact of Low Inflow. The reduced inflow at Marala had following adverse impact on Pakistan:-
    1. Closure of Marala – Ravi Link (MRL) Canal.
    2. Non availability of irrigation water for paddy crops in Marala Command Canals area. The total effected area is approximately over one Crore acres of land.
    3. Reduced filling of Mangla Dam.
    4. Acute shortage of water for Rabi Crops.
13. PCIW Meeting on the Sideline of Tour of Inspection of N-JHEP
    1. PCIW strongly protested that India, in breach of the Treaty, unilaterally started initial filling of Baglihar Reservoir starting from 10 August 2008 due to which inflows above Marala reduced to as low as 20,000 cusecs whereas India was obliged to maintain the inflow at the minimum level of 55,000 cusecs. PCIW stated that such a situation was not acceptable and Pakistan has the right to take appropriate action in this regard.
    2. Indian Commissioner responded that there had been some misunderstanding on the part of Baglihar Project authorities which delayed the response a bit. He accepted lack of coordination on his part as well. He added that the matter is being given due consideration and all the inflows received upstream of Baglihar Plant are being passed on downstream since 25 August 2008. He admitted that reduction was due to non-availability of any mechanism to pass on the flows at low level after plugging the temporary outlets provided in the body of the dam. He further explained that this happened because the project authorities were expecting heavy rainfall during these days, which unfortunately did not occur. Indian Commissioner agreed that he will probe into the matter and report back to Pakistan after having complete details.
    3. On return back, Indian Commissioner denied all the allegations made by Pakistan about the reduced inflow at Marala and asked for a visit to Marala to ascertain the correctness of data provided by PCIW. The visit held on 30 November 2008.

    Kishenganga Hydroelectric Project

14. The Kishenganga Hydroelectric Project on the River Neelum (called Kishenganga River by India) is located near the Line of Control about 5 Kilometers upstream of Kanzalwan in Occupied State of Jammu & Kashmir (OSJK).
15. The initial information about construction of a tunnel near Kanzalwan to divert the waters of Kishenganga River into Wullar Lake was received in November 1988. The Pakistan Commissioner for Indus Waters (PCIW) promptly informed his Indian counterpart that undertaking of the work without providing requisite information is a violation of the Indus Waters Treaty 1960. Indians were asked to stop the work and provide complete details. A Tour of Inspection of the Project was also requested. In response, the Indian Commissioner informed that work of geological investigations had only been taken up which alone might take over two years for completion and the information about the project would be communicated to Pakistan at least six months in advance as per the Treaty’s provisions.
16. In December 1988, during a meeting of the Permanent Indus Commission (PIC) held at New Delhi, the PCIW informed the Indian Commissioner that the waters of this tributary are reserved for Pakistan’s proposed Neelum-Jhelum Hydroelectric Project; the work on which started in 1989.
17. India’s Original Project (Storage-Cum-Hydroelectric Plant)
    1. In June 1994, India officially informed Pakistan about the construction of the proposed Kishenganga Storage-cum-Hydroelectric Project on the River Neelum and provided detailed information. The design of proposed project envisaged construction of concrete gravity dam with gated spillways. The scheme envisaged that the stored water of River Neelum would be diverted through a 21 Kilometers long tunnel to produce 330 MW Power. The power house located near Bunkot would deliver the water through a Tail Race Tunnel into a Nullah called Bonar-Madmati, another Tributary of River Jhelum, which outfalls into the Wullar Lake.
    2. The design data was examined in detail and following objections were communicated to India:-
       1. It contravenes the provisions of Paragraph 10 of Annexure E to the Treaty (Any storage work to be constructed on the tributary of the River Jhelum on which Pakistan has any agriculture use or hydroelectric use shall be so designed and operated as not to adversely effect the then existing agriculture use or hydro-electrical use of that tributary;
       2. It incorporates the diversion of flow of one Tributary (Kishenganga) to another Tributary (Bonar-Madmati Nallah) of River Jhelum not provided for in Annexure E to the Treaty; and
       3. It does not conform to the criteria mentioned in Paragraph 11 of Annexure E (Design criteria of storage work) to the Treaty.
    3. The Kishenganga Hydroelectric Plant’s dam and power house sites were inspected by Permanent Indus Commission on 7 – 10 November 2005. At that time Indians had started the excavation of tunnel for the river diversion, in addition to the geological investigation works for rock formation.
    4. The objections raised by Pakistan were discussed during various meetings of the Commission from May 2003 to November 2005.
18. India’s Revised Project (Run-of-River Plant)
    1. Foreseeing the weaknesses of their case, India revised the design of the project from Annexure E to Annexure D of the Treaty, i.e from Storage Work to Run-of-River Plant. According to which dam height was reduced while retaining the diversion of waters to Wullar Lake. Pakistan’s objections on the new scheme/design were sent to India on 24 August 2006 by PCIW and were discussed during the Annual (99th) Meeting of the Commission held from 30 May to 4 June 2007 at New Delhi.
    2. Pakistan’s main objections on the revised project are as under:-
       1. The proposed design of the plant in respect of freeboard, pondage, spillway and intake is in violation of the provisions of the Treaty.
       2. India is not authorized to divert waters of River Kishenganga in view of Article III, Article IV(6) and Paragraph 15 (iii) of Annexure D of the Treaty.
    3. Pakistan’s objections were discussed through correspondence as well as in various meetings of the commission. However, both the parties remained stuck to their view point about the project.
19. Legal Experts Opinion. To ascertain the legality and merit of Pakistan’s case, legal opinion / advice was also sought from a panel of experts. The major conclusions of the report forwarded by the panel are as under:-
    1. Annexure D 15(iii) expressively permits India to divert water from one tributary of Jhelum to another on certain conditions. For this reason, to argue against the legality of any diversion in this location is difficult. However:
       1. India has to show that diversion is necessary not merely in principle but also in its extent. Annexure D 15(iii) does not authorize a 100% diversion merely because this maximizes power generation and irrespective of its effects on the natural channel of the river or on the downstream state. It is arguable that a 100% diversion in the dry season is disproportionate and is not necessary.
       2. The impact of Kishenganga Hydroelectric Project (KHEP) on Neelum – Jhelum Hydroelectric Project (N-JHEP) is sufficient to qualify as an adverse affect within the meaning of Annexure D 15(iii).
       3. Annexure D 15(iii) is an operational rule which arguably refers to the genuine agricultural or hydroelectri