UN General Assembly in July 2010 recognized access to water and sanitation as a fundamental right but did not specify that the right entailed legally binding obligations. Governments of Germany and Spain, with support from many others tabled a resolution to close the legal gap by clarifying the foundation for recognition of the rights and the legal standards which apply. The UN Human Rights Council has affirmed that the right to water and sanitation is derived from the right to an adequate standard of living.
Interpretation of the right to water and sanitation takes a new turn when these waters are embedded in a disputed habitat. The natural habitat of Jammu and Kashmir, in particular, part of Kashmir currently suffering under Indian control, is rich in water resources. The Indian failure to abide by the seven restraints, four agreed at the time of allowing a temporary and sub-ordinate admittance to Indian soldier into Kashmir in October 1947 and the three imposed under the UN Resolution of 21 April 1948, make it into an occupying force exploiting the natural resources of Kashmir, which otherwise, are a trust property in the package prepared by the UN to resolve the question of the right of self-determination of the people under its supervision through a free and fair vote.
Delhi owned (against the will of the people) National Hydroelectric Power Corporation has earned more than Rupees 19000 crore from its Kashmir based power projects during the past 14 years. The disclosure about earnings was made in response to an RTI application filed by Common Wealth Human Rights Initiative (CHRI). NHPC has earned Rupees 19,442 crore from the sale of power generated in J&K to different state power utilities in India between 2001 to 2015.
Indian Government has forced Jammu and Kashmir to buy electricity worth Rupees 4000 Crore from power stations built on its own soil and run by Kashmiri waters. J&K has become a goldmine for NHPC. It is worse than the dreaded East India Company, which used its trade narrative and enslaved India.
At the same time we find that a large proportion of Kashmiri population has fallen below the poverty line. A survey report of National Sample Survey Office (NSSO) of the Union Ministry of Statistics and Programme Implementation of India has revealed that the number of households living below poverty line in Jammu and Kashmir has risen to 4.17 lakhs. The poverty rate in the state rose from 9.4 per cent in 2009-10 to 10.35 per cent in 2011-12, mainly due to an increase in the number living below the poverty line (BPL) in rural areas from 8.1 per cent to 11.5 per cent. Kupwara and Baramulla districts lead in poverty.
It needs to be highlighted that Government of India and the J & K Government have signed a
Memorandum of Understanding regarding the transfer of power projects in 2000 and it provides that “a mutually acceptable methodology will be worked out to handover these projects to J&K Government separately.” The MoU covers Kishanganga, Uri-II, Bursar, Sewa-II, PakalDul, Nimmo Bazgo and Chutak projects.
According to the MoU, the purpose of transfer of these projects was to enable NHPC to “execute these projects over a period of 10 years”, in phases so that their implementation would help the State in its overall development apart from “meeting its winter peak requirements of electricity.” The capacity of these projects is around d 2000 MW.
Like many other promises made to the people of Jammu and Kashmir either in the temporary agreement of October 1947, promises made at the United Nations or in bilateral discussions with various Governments of Pakistan, Indian Government has kept course of its deceit and has decided not to keep its promise of handing back these power projects to the people of Jammu and Kashmir.
Indian Government and the broad spread of its hydra headed visible and invisible machinery in Kashmir has a policy to keep the people disturbed, humbled, chained, caged and hounded so that they have no time to assert their claim on their natural resources currently being trashed by greedy corporate of India. A continuous turmoil in the Valley helps India to fool the world that the place is inhabited and infested with terrorists. It is a helpful ruse to continue to kill the Kashmiri youth and keep a lid on the wrong doings of Indian administration and its conduits in the Valley.
The people of Jammu and Kashmir have an opposition, known for its philosophy of tricks and deceits. India by and large is a racist and a communal nation. An Indian Hindu does not hesitate to revert to his primitive taste of revenge and beliefs and lynches a Muslim for allegedly eating cow meat. Indians Hindus outnumber the Muslims of Kashmir, therefore, are a mismatch in their just struggle and desire to have a quality of life. The Indians who needed an entry permit (a visa) to enter Jammu and Kashmir until 31 March 1959, have turned like Arab camel seeking to hide the head in the tent. They seem to have thrown the Kashmiri out of his home.
It is unfortunate that Srinagar, Muzaffarabad and Gilgit governments have failed to defend the manner and extent to which the people of Kashmir are entitled to have a role in the use of their water resources. It is a violation of trust that India and Pakistan have been taking unilateral decisions in regard to water in 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. It can’t be denied that Pakistan has accommodated Kashmiri view by inducting a representative of Azad Kashmir Government in the water dispute hearing in 2013.
On February 18, 2013 in the Case Number PK-IN 82842 seven judges of Permanent Court of Arbitration gave a 241 pages partial award in Indus Waters Kishenganga Arbitration (Pakistan-India). There was an army of agents, co-agents, counsels, representatives, expert witnesses and technical witnesses representing the respective interests of India and Pakistan. There was no representation from any one of the three governments of Jammu and Kashmir and no effort was made by any Kashmiri political party or a civil society group to list the interests of the people of Jammu and Kashmir. The judgement however, lists the representation of the Government of Azad Jammu and Kashmir, through Sardar Raheem, secretary of irrigation and agriculture. The merits and quality of his input in accordance with the jurisprudence of natural resources embedded in the disputed territory are not clear.
People of Jammu and Kashmir currently inhabiting the part occupied by India (it is occupation now) need assistance from Government of Pakistan, United Nations and civil societies around the world in defending the water resources and other natural resources embedded as trust properties in the disputed habitat. Indian exploitation is offensive, unlawful and colonial. Water resources are not unlimited and available forever. The actual stewardship of water resources in any part of Kashmir rests with the people of Kashmir.
The use of water in the 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 Treaty the government of India on its part has breached the trust embedded in the instrument of accession (a disputed temporary bilateral agreement). Under this agreement with the Government of Kashmir, Government of India is obliged to defend the waters of Kashmir (as a property). India cannot trade a natural resource of Kashmir with Pakistan, or vice versa.
Pakistan’s trust obligations also restrain it from violating any resource in its trust jurisdiction. Pakistan has a Stand Still Agreement with the Government of Jammu and Kashmir since August 1947. Therefore, it should revisit its previous arrangements with India in the use of Kashmiri waters and consider a direct deal with the Government at Srinagar. It is helpful to note that any Government at Srinagar established as provided in the UN Resolution can’t refuse to deal directly with Government of Pakistan. The Government at Srinagar is elected from only a part of Jammu and Kashmir and under the UN Resolution of 30 March 1951 it is non-representative and has no authority to conduct any deal with India which could prejudice the interests of Kashmiris living under the two administrations on the Pakistani side of Jammu and Kashmir.
Pakistan has higher burden of responsibilities in helping the people of Jammu and Kashmir at the United Nations in articulating the case of self-determination and within the borders of Kashmir in defending their natural resources. Pakistan has “assumed responsibilities in Azad Kashmir” under UNCIP Resolutions toward providing a better Government and a better administration and has a strong constituency in the Valley and other parts of Jammu and Kashmir.
We have to preserve and protect water resources and the environment in Kashmir. Pakistan should move forward and assist the people of Kashmir in their efforts to wrest back the Kishanganga, Uri-II, Bursar, Sewa-II, PakalDul, Nimmo Bazgo and Chutak projects from unlawful Indian control. Pakistan should intervene on the strengths of Stand Still Agreement of August 1947 and its obligations under UN Resolutions on Kashmir. Indian Government should not be allowed to renege on the MoU of 2000, which provides that “a mutually acceptable methodology will be worked out to handover these projects to J&K Government separately.” We have to stop India from draining water resources of Kashmir.
Author is Secretary General of London based NGO – Jammu and Kashmir Council for Human Rights(JKCHR), in special consultative status with the UN. He is on UN Register as an Expert in Peace Keeping/Humanitarian Operations and Election Monitoring Missions.