Published On: Mon, Feb 25th, 2013

Kashmiri Waters & India – Pakistan Claims

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By Dr. Syed Nazir Gilani –

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.

Common man and woman in Kashmir have as usual remained uninterested in the Waters embedded in the natural habitat of Kashmir. It adds to the long list of their other negligences. Main Stream, Hurriyat and other political parties have been making noises on the issue. Hurriyat made a noise in the recent past. However, when these political parties were required to list their presence and flag the interest of the people of Kashmir, these interest groups were nowhere near the scene.

The Court of Arbitration has allowed India to go ahead with the construction of Kishenganga hydro-electric project in North Kashmir, rejecting Pakistan’s plea that this was a violation of the 1960 Indus Waters Treaty. India can go ahead with the diversion of the waters of Kishanganga, a tributary of Jhelum, for hydro-electric power generation.

However, the court restrained India from adopting the drawdown flushing technique for clearing sedimentation in the run-of-the river project designed for generation of 330 MW power. India may have to adopt a different technique for flushing. The court also sought statistics on the environmental flows into the river downstream of the project. Pakistan had objected to the drawdown flushing apprehending that it will affect flows at its downstream Neelam project.

Water politics between India and Pakistan is very interesting. It exposes the manner in which the two countries have been shifting the goal posts of their interests and highlights the dangers involved for the interests of the people of Kashmir.

On 21 August 1957 Indian Government reported to UN Security Council that Pakistan was likely to execute Mangla Dam Project in Mir Pur and exploit the “resources of the territory to the disadvantage of the people of Jammu and Kashmir and for the benefit of the people of Pakistan”. The Indian letter S/3869 dated 22 August 1957 flagged that the action of the Government of Pakistan was a violation of the Security Council Resolution of 17 January 1948. The complaint further reiterated that the Government of the State of Jammu and Kashmir is the only lawful Government of the State under the Resolutions of 13 August 1948 and 5 January 1949. India also filed a three page report titled “The Mangla Dam Project” marked at the UN Security Council as S/3869.

One finds India defending the territory, the resources and the lawful Government of Jammu and Kashmir in August 1957 communication to UN Security Council. It is only a few years down the road that in 1960 India and Pakistan enter into Indus Water Treaty to share the Waters of Kashmir. How Pakistan adjusts its sovereign interests at the cost of the interests of the people of Kashmir is revealed by the broadcast of Ayub Khan to the nation made on 4 September 1960. He said that the terms of the Treaty were “the best we could get under the circumstances, many of which, irrespective of merits and legality of the case, are against us”. There is a sense of apology and it implies that something had been sacrificed by Ayub Khan in the process.

Indus Water Treaty is the beginning when India and Pakistan started sacrificing the interests of the people of Kashmir to adjust each other’s interests. Keeping out the full regime of politics of Kashmir dispute, waters are the natural resource embedded in the disputed habitat of Kashmir. India and Pakistan could not have these waters with ‘no holds barred’. Waters and other natural resources have to be recognised as trust properties by India and Pakistan.

UN General Assembly in July 2010 recognized that 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.

India and Pakistan are locked in a continuous clash of claims over water in Jammu and Kashmir. 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.

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.

Governments must fully implement their obligations to create an enabling environment and to regulate and monitor the right to water and sanitation in the three administrations of Kashmir situated at Jammu and Kashmir, Azad Kashmir and Gilgit and Baltistan.

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 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 too restrain it from violating any resource in its trust jurisdiction.
The water dispute at Mangla, Baglihar and Diamir has made Kashmiri people’s conscious of their interest in their natural resource. They feel being driven to economic insecurity, cultural subordination and ecological dispossession. Kashmiris are not averse to the welfare of the people of Pakistan or the people of India. Their stand on the Mangla, Baglihar and Diamir disputes is based on the jurisprudence of the habitat and the water resources embedded in it. They will have to argue for a corresponding and reciprocal benefit of compensation.  India and Pakistan should embrace and honour the welfare of the Kashmiri people, which includes the use or preservation of water as a natural resource.

Kashmiri interest is guaranteed by their bilateral agreement with the government of India and Pakistan’s “assumed responsibilities in Azad Kashmir” and its responsibilities under the 1949 Karachi Agreement on Gilgit and Baltistan. The World Bank has made an error in not taking into consideration the jurisprudence of the Kashmir dispute and of the use of its resources without assuring a corresponding benefit for the Kashmiri people. Water resources are not unlimited. It is a genuine argument that the Indus Water Treaty promotes inequity. At the same time, it has failed to preserve and protect water resources and the environment.

India and Pakistan have Charter Obligations and Trust Obligation during their respective controls in Jammu and Kashmir. In addition to this the two countries have to accept their human rights responsibilities towards the natural resources, in particular, water embedded in the habitat of Kashmir. They must exercise due diligence to become aware of and address potential or actual negative impacts on human rights caused by their activities. Besides complying with national laws and regulations, non-State service providers must take proactive steps to ensure that they do not violate international human rights standards.

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

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He could be reached on email dr-nazirgilani@jkchr.com


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