WATER issues between Pakistan and India need to be divided into three distinct legal baskets in order to avoid the muddling of approaches. The first basket should contain the recent Kishenganga and Ratle issues within the framework of the Indus Waters Treaty (IWT). The second basket should contain the addressing or resolution of Pakistan’s suspicions that India is using water as a weapon by building 40-plus projects upstream on the Jhelum, Chenab and Indus rivers over the next few years. And the third basket should provide for the strategy of a response to the threat of unilateral revocation of the IWT. Let me discuss these one by one.

In the recent issue pertaining to certain aspects of the design and construction of the Kishenganga and Ratle projects, Pakistan has approached the World Bank to set up a court of arbitration, under the dispute resolution framework provided by the treaty. India approached the World Bank for the appointment of a neutral expert, and the World Bank consequently put both requests on hold, urging the two countries to resolve these issues bilaterally.

I propose this issue be placed in the first basket which, in turn, should be guided by the treaty and the mechanism thereunder. Pakistan should continue to proceed on the matter as it currently has been, and Pakistan’s Indus waters commissioner (IWC), along with the water and power ministry, should continue to press for arbitration, unless India pauses work at the sites.


Contrary to perceptions, there is much that lies outside the scope of the Indus Waters Treaty.


Before I move to the contents of the second basket, I feel it pertinent to highlight the place of the IWT in the construction of a hydroelectric project on the Indian side. This process in itself can be divided into two stages. In the first stage, the political will to build a dam is established, the site determination is made, a financial (or other) feasibility study is carried out and the funds are then allocated for the same purpose. Following these, the location is decided, the investment is arranged and finally the drawings are submitted to Pakistan’s IWC. It is at this point that the process of the construction of a dam enters into the IWT legal corridor.

This also explains that the assumption by some officials in Pakistan that the IWT ‘enables’ India to construct as many pondages/dams as it wishes, is incorrect. The said decision-making process is, and has always been, outside the scope of the IWT.

Therefore, the projects that India is planning to build in the near future should be placed in a second, separate, basket. The scope of this basket will be outside the IWT, for at this point the planning phase of the dams lies far outside the IWT purview. If Pakistan wishes to challenge the 40-plus planned pondages in India-held Kashmir (IHK) as disproportionate to the valley’s requirements or as an attempt to acquire control over the flows of water into Pakistan, then this matter, too, belongs to this very second basket.

One of the options available to both the parties outside the IWT is to enter into another agreement, outlining the number of projects to be undertaken by either side, along with their specific locations, in the next decade or two. The management of the waters of the Kabul River between Pakistan and Afghanistan can also be part of a similar arrangement.

Until such an agreement takes place, however, the second basket, which contains an assessment of a threat of ‘water war’, should fall into the lap of the Ministry of Defence and the Ministry of Foreign Affairs.

The third basket should contain the mechanism Pakistan needs to employ to deal with the recent threat from the Indian side to unilaterally revoke the IWT. Never before was revocation given such consideration at the highest level of decision-making in either state in a formal sense. Now, however, with Prime Minister Narendra Modi’s recent statement in September at a meeting of top officials in New Delhi and the subsequent formation of a task force, comprising inter alia the Indian national security adviser, Ajit Doval and Foreign Secretary S. Jaishankar, to review the IWT and make full use of the water on the Indian side, this has become a real possibility under consideration.

While unilateral revocation is not a valid option available to either party under the IWT, the very threat of the same may be considered a ‘hostile act’. It constitutes a direct violation of Article 2(4) of the UN Charter, which safeguards against the threat or use of force, for the revocation of a treaty signifies a relationship almost akin to war between the parties, allowing this matter, then, to fall within the jurisdiction of the secretary general of the United Nations.

In this regard, the third basket will, again, have to be tackled outside the framework of the IWT, and should be taken up by the ministries of defence and foreign affairs. Viewing these matters by dividing them into these three individual baskets will not only allow for a better understanding of what the IWT covers, or more importantly what it does not cover, but also the ability to direct each basket to the appropriate and relevant forum both internally and externally.

What is left out of these baskets is the broad obligation under international law on Pakistan as a responsible lower riparian to make the required dams and reservoirs to efficiently manage water. This obligation exists independent of any bilateral treaty and, now, more so under the Paris Agreement 2016 in which Pakistan has undertaken to move towards renewable, non-fossil-based sources of energy, including hydroelectric power.

The writer is a former caretaker federal law minister.

ahmersoofi@absco.pk

Published in Dawn January 31st, 2017

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