Coping With Downside of the Indus Waters Treaty

Nazir says what is seen as a major (perhaps the only) success in the bilateral relationship between India and Pakistan falls short on its promise. But water is getting scarce everywhere, not just in the Indian subcontinent

(Dr. Syed Nazir Gilani, 60, is a jurist. He was born in Naranthal (Jalshree) village near Baramulla and was a student at the Government Degree College in Baramulla. Subsequently, he studied English Literature and Politics at the University of Kashmir, Law at the Sindh Muslim Law College in the Karachi-Pakistan, Islamic Law at the University of London School of Oriental and African Studies (SOAS), International Law at the Queen Mary University London, Victimology at Inter-University Centre Dubrovnik - former Yugoslavia, Peace Keeping/Humanitarian Operations & Election Monitoring from Scuola Superiore di Studi Universitari e di Perfezionamento S. Anna - Pisa Italy, and has a Ph.D. in the Jurisprudence of UN Resolutions and Kashmir Case. He successfully argued a constitutional writ petition in the High Court of Azad Kashmir from December 1992 to April 1999 on the question of self determination and duties of AJK Government. As a lead human rights advocate he has faced a sentence of 5 years imprisonment and 15 lashes and a death sentence during the Martial Law of General Zia in Pakistan. Dr. Gilani has introduced awareness around the title of the people of Jammu and Kashmir to a Rights Movement since 1877 and the respective sovereign claims of India and Pakistan since 1948.)


Stewardship of Water Resources?

India and Pakistan are locked in a serious clash of claims over water embedded in the habitat of Jammu and Kashmir. Water resources are not unlimited and always available. The embedded natural resource of 'liquid gold' in the State of Jammu and Kashmir is being exploited at Mangla, Baghlihar and Diamir in all the three administrations on either side of LoC. A non-interest in the depletion of water resources amounts to gradually preparing a human habitat to face a sudden death.

The actual 'stewardship of water resources' in any part of Kashmir rests with the people of Kashmir. It is unfortunate that the three governments of Kashmir at Srinagar, Muzaffarabad and Gilgit or leaders have no clue as how to defend the manner and extent to which the people of Kashmir are entitled to exercise the stewardship over water resources at Mangla, Baghlihar and Diamir.

It is a violation of trust duties that India and Pakistan have been taking unilateral decisions in regard to water embedded as a natural resource in the disputed habitat of Kashmir. Both countries have failed to incorporate the right of the people of Kashmir in the management of water uses and water-related activities under the Indus Water treaty.

In 1995 Ismail Serageldin, vice president of the World Bank, made a prediction that 'if the wars of this century were fought over oil, the wars of the next century will be fought over water'. Signs are that these wars would be fought locally, nationally, regionally and would ultimately transform into a global war.

Water in eastern culture is seen as sacred and this culture treats its provision as a duty for the preservation of life. In contrast the West and its associates conform to a culture where water is seen as a commodity and its ownership and trade as a fundamental corporate right. Obviously a culture of commodification has to be at war with diverse cultures of sharing, of receiving and giving water as a free gift. Therefore water wars are cultural wars and global wars. An economic fascism is out to destroy people's right to their water resources. It is much more important when disputed and trust territories among other resources have this 'liquid gold', brutally ravaged by two trustee governments.

It is interesting to point out that on August 21, 1957 the Government of India complained to the United Nations that Pakistan was about to build a 'Mangla Dam Project' in the disputed territory under its (Pakistan's) control. The Indian complaint further added that the 'execution of Mangla Dam Project by the Government of Pakistan was a further instance of Pakistan's consolidating its authority over the Indian territory of Jammu and Kashmir and of the exploitation of the territory to the disadvantage of the people of the State and for the benefit of the people of Pakistan. The complaint added that Pakistan's action was in violation of the Council's Resolution of January 17, 1948 and of the assurances given to India by the Chairman of UNCIP.

In less than three years later in April 1960 India reversed its earlier position and entered into a water treaty, on the waters of Kashmir, with Pakistan. 1960 Indus Water Treaty was brokered by the World Bank. By concluding the Indus Water Treaty with India, the Government of Pakistan has in practice accepted the sovereignty of India over the Water Resource and the Habitat.

The use of water in Indus Water Treaty has not been aligned on a principled, fair and just basis. It does not recognise the interests of the affected people (Kashmir) and has failed to develop a mechanism to include those interests in water allocation decision.

Under the Indus Water Treaty, the Government of India, on her part, has breached the trust embedded in the instrument of accession (a disputed bilateral agreement). Government of India reversed her stated position on Kashmir. India cannot trade a natural resource of Kashmir with Pakistan or vice versa Pakistan's trust obligations, too restrain it from violating any resource in its trust jurisdiction.

We are not averse to the welfare of the people of Pakistan or the people of India. Our argument for the subscription of our interest in Mangla, Baghlihar and Diamir disputes is based on the Jurisprudence of the Habitat and the Water Resources embedded in it. We shall have to argue a corresponding and reciprocal benefit of compensation due to the people of Kashmir. India and Pakistan shall have to fully embrace and honour the welfare of Kashmiri people which embeds in the use or preservation of water as a natural resource. The sharing of water resource of Kashmir by India and Pakistan has not been adequately compensated by improving the quality of life in Kashmir, through setting up industry, job creation and taking other measures to help to build a confident economy.

The principle interest of the people of Jammu and Kashmir in the Indus Water Treaty, Mangla, and Diamir has been ignored. Kashmiri interest is guaranteed in the bilateral agreement with the Government of India and in the Pakistan's "assumed responsibilities in Azad Kashmir" and in its responsibilities under "Karachi Agreement on Gilgit and Baltistan".

World Bank has made an error at core in not taking any regard of the Jurisprudence of the Kashmir dispute and of a use of its resources without assuring a corresponding benefit for the Kashmiri people. One has to accept that water resources are not unlimited and always available. It is a genuine argument that the Indus Water Treaty does not maximise in equity and in fairness the benefits accrued from the use of water and at the same time it has failed to preserve and protect water resources and the environment.

Water resources embedded in the natural habitat of Kashmir need to be defended as an integral part of self determination.