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. We can blame India’s
conduct as an upper riparian state only up to a point for our water
issues. What of our own conduct and responsibilities as a lower riparian
state? Lamentably, we have been wasting our water resources with almost
criminal negligence and abandon.
In fact, what Indian
scholars highlight in my interaction with them at international
conferences is that 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 utilisation.
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
utilisation 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 our 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 programme of construction of
several other dams in order to fulfil 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 recognised 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 storages 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 our obligations of managing and conserving water resources as
a lower riparian state.
I am afraid that the failure of
the federal and provincial governments to plan for construction of dams
and water reservoirs will legally and politically weaken our stance
against India which is unabatedly constructing several more dams in a
far smaller catchment area than ours.
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 kilometres on its territory. There is no question that we
have 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.
