- Posted August 28, 2014 by
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Pakistan's Water Woes & Indian Intransigence
As Kashmiris struggle to assert their territorial and water rights against India and Pakistan, the right to use and abuse the water flowing in Indus and its tributaries could get mired in petty politics. Instead, it should be dealt with the aim to conserve and manage water, the scarcest resource in the subcontinent.
The Kashmiri leadership in India is concerned about the control exerted by the Indian National Hydroelectric Power Corporation (NHPC) on developing new hydel projects in the State. In a letter to the Indian Prime Minister, the presidents of the three chambers of commerce in the Indian-held Kashmir recently criticized the decision to award large sums to NHPC to develop new hydro-electric projects. In addition, Kashmiri leaders want the Indian government to revert control of functioning hydel projects to the State and to have the provision for all future projects be reverted to the State after being in operation for a specified time.
The Kashmiri leaders also want a greater share of the electricity generated in Jammu and Kashmir. They also seek compensation from the Indian government for the missed opportunities to develop water and hydro-electric projects because of the restrictions imposed by the IWT.
Pakistani is reportedly objecting to additional hydro-electric projects being built upstream on the three eastern rivers: Jhelum, Chenab, and Indus, whose waters were primarily allotted to Pakistan under the Treaty. Specifically, Pakistan has objected to the construction of the 850MW Ratle, 1,000MW Pakal Dul, 120MW Miyar and the 48MW Lower Kalnai hydropower projects on river Chenab. Pakistan has also expressed reservation on Kishanganga Dam being developed upstream on Neelam River. “Pakistan had asked for changes in the design, especially with reference to the spillways and poundage, which affects the intake location. The intake of water should go up, spillways are low in elevation and these needed to be taken up," reported BBC.
Signed in September 1960, the IWT is almost 54-years old. Despite the routine disagreements over the IWT, the Treaty has served the people of India and Pakistan well. Its greatest achievement is the fact that while India and Pakistan have fought traditional and untraditional wars since 1960 over other disputes, they have avoided an armed conflict over water.
The Treaty created the necessary institutions for sustained conflict resolution, negotiations, monitoring, and exchange of data and information. Even when the Commissioners fail to agree, the Treaty provided mechanisms to escalate the matter to higher levels of the establishment. When all possible avenues for a bilateral resolution of the conflict are exhausted, the Treaty provides for the appointment of a neutral expert and even for a court of arbitration.
The piles of polarising discourse over the IWT does disservice to the Treaty that was signed in good faith by Prime Minister Nehru and President Ayub Khan in Karachi. It becomes obvious now that the interest and welfare of Kashmiris was overlooked in the process. That explains the recent rise in Kashmiri misgivings for the IWT.
THE recently issued Kishanganga arbitration award has again proved what I have been saying all along: that by invoking the dispute resolution mechanism of the Indus Waters Treaty (IWT), Pakistan cannot halt India from undertaking various upstream hydroelectric projects and it needs to bilaterally take up this matter. In this regard, certain observations in the award are actually quite helpful and Pakistan must make use of them.
But let’s be clear. Pakistan can blame India’s conduct as an upper riparian state only up to a point for the water issues. What of its own conduct and responsibilities as a lower riparian state? Lamentably, it has been wasting its water resources with almost criminal negligence and abandon. In fact Pakistan must share responsibility for the wastage of water on its territory as its people and successive governments have failed to undertake effective measures for the storage of water or its more constructive utilization.
Under international law, a positive obligation to not inflict unreasonable harm on the lower riparian state restricts the sovereignty of the upper riparian state. However, while the upper riparian is almost like a trustee for the lower riparian and must therefore adopt suitable measures to preserve the catchment areas, its failure to do so does not absolve the lower riparian from its independent obligation to manage water flowing through its territories so as to ensure both equitable and reasonable utilization of shared water resources.
Crucially thus, the optimal management of water through means such as storage facilities and dams remains the equal responsibility of a lower riparian state like Pakistan.
Moreover, international law binds Pakistan to better manage its territorial water resources in order to secure the right to water of its citizens under Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, which Pakistan ratified in 2008. Failure to give effect to its obligations under the ICESCR may now have consequences of its own in the context of recently granted GSP Plus status by the European Union.
Given this legal framework, the provinces ought to appropriately approach the matter of management of rain and floodwater as well as of construction of dams in the light of Pakistan’s legal compulsion under international water law. Importantly, a possible failure to reach consensus on the Kalabagh dam should not prevent the federal government and the provinces from planning and undertaking an extensive program of construction of several other dams in order to fulfill Pakistan’s international legal obligations.
Presently, under the water accord of 1991, the provinces remain focused on the agreed upon water flows while completely ignoring Article 6 of the accord which states that “the need for storages, wherever feasible on the Indus and other rivers was admitted and recognized by the participants for planned future agricultural development”. Thus far, the provinces have planned no water storage pursuant to Article 6. Significantly, this noncompliance by provinces also hinders the federation from fully performing its international law obligations.
Since provinces are subsets of the federation, they are also bound by international law obligations. Therefore, irrespective of Article 6, the upper riparian province has a responsibility to let flow the water while the lower riparian province has the responsibility to preserve and make storage to avoid wastage of water resources.
In addition to the construction of dams for efficient management of water resources, international customary water law also mandates Pakistan to preserve water during floods and rains. At present, no provincial plan for the management of floodwaters exists. In this regard, Justice Mansoor Ali Shah of the Lahore High Court penned a highly illuminating judicial inquiry tribunal report in 2010 extensively detailing the reasons and causes of floods. The report also highlights the critical role of dams in water management and recommends construction of several dams. The lower riparian provinces ought to seriously implement the report’s recommendations.
The Kishanganga Award must be assessed holistically in the light of the above context. If, as the lower riparian state, Pakistan had taken an early initiative in the planning of Neelum-Jhelum, it would then have been able to persuade the International Court of Arbitration to allow more flow of water into Pakistan.
Although this delay has been costly for Pakistan, it also reinforces the importance of fulfilling its obligations of managing and conserving water resources as a lower riparian state. The abject failure of the federal and provincial governments to plan for construction of dams and water reservoirs legally and politically weakens Pakistan's stance against India which is constructing several more dams in a far smaller catchment area than Pakistan's.
Whereas India has built 63 large dams in its northern areas in the last 30 years, Pakistan has only built two large dams along the Indus passing through a stretch of over 2,000 kilometers on its territory. There is no question that Pakistan has been acting as an irresponsible lower riparian state.
In the wake of greater provincial autonomy after the 18th Amendment to the Constitution, it is imperative that provinces demonstrate greater responsibility and resolve in managing the country’s water resources. Extensive plans for the management of Indus waters as well as flood and rain waters must be developed and initiated without any delay.
Also lacking in the public discourse is an appreciation of the understanding reached on the use of waters. It does not help when India starts new hydel projects in secret upstream on rivers, whose waters are available to India for restricted use only, or when Pakistan cries foul every time before asserting the facts over what is actually transpiring.
The Pakistani media and those involved in negotiations have created the false impression that India has no right over the waters of the three western rivers – Chenab, Jhelum, and Indus – and their tributaries. Such assertion is false.
The treaty explicitly made provisions for India to use these water under specific restrictions. The Pakistani media and experts will be well served to review the Treaty in detail, especially Annexure C, Annexure D, and Annexure E, which stipulate the provisions for India to use the waters from the three western rivers for agriculture use, generation of hydro-electric power, and storage.
Pakistan has challenged the Indian plans with limited success in the past. For instance, Professor Raymond Lafitte, a Swiss engineer, was appointed as the neutral expert to study Pakistan’s objections over the construction of Baglihar Dam. After reviewing the evidence, the Swiss engineer asked for only minor modifications to the Indian construction plans.
Even more interesting is the December 2013 verdict of the Court of Arbitration, headed by Judge Stephen M. Schwebel, which deliberated over the Kishenganga hydel project (KHEP). The Court recognised India’s right to develop the Kishenganga hydel project.
The Court reviewed all evidence brought forth by the two parties and unanimously decided that India would ensure a minimum flow of 9 cubic meter per second (cumecs) downstream of KHEP at all times. The December 2013 verdict was a follow-up to the February 2013 verdict that recognized India’s right to develop the KHEP as a run-of-river plant, provided for in the IWT.
The power and water crisis in Pakistan is a direct result of Pakistan’s failure to manage its water resources over the past five decades. The construction of earlier large hydel projects in Pakistan were a gift of the IWT that made millions available to Pakistan in aid and loans from the World Bank and $170 million in compensation from India.
While India has also lagged in harnessing and conserving water resources, Pakistan’s inability to conserve water resources and generate power is a colossal failure in public policy and governance.
Equally lacking is the human capital in Pakistan to deal with the water and power crisis. Engineering universities in Pakistan have yet to recognize the existential threats faced by the nation. Instead of focusing on water, they are obsessed with computer engineering. Water resource engineering, dam construction, and related topics are only partially covered in the undergraduate engineering curriculum. Hardly any notable doctoral dissertations have been produced in Pakistan on hydel projects.
Review the list of experts brought to testify before the Court of Arbitration for KHEP. Pakistan couldn't find indigenous civil engineering experts to make its case and relied on foreigners and non-engineers. Review page 11 of the final award, where experts representing Pakistan are hairsplitting on the use of regression models, revealing their limited understanding of the subject matter as it relates to the use of seasonal factors in the statistical models to capture seasonality in the water flow. Such ignorance on matters that pose existential threat to Pakistan should have caused some heads to roll as it ought to have been unforgivable.
While India conveniently serves as the bogeyman for Pakistan’s domestic water disputes, it has delayed the much-needed arbitration on water resources within Pakistan. The tragedy of Pakistan is that while provinces continue to protect their turf on water and power, the nation continues to lose its potential and is jeopardizing the welfare of its future generations.