Saving South Asia From a Water War? By Syed Qamar Afzal Rizvi

THE unilateral inception/operation of Kishanganga Dam by the Indian prime minister in the Indian occupied Kashmir is reflective of Indian refractoriness regarding expanding its water reservoirs without taking Pakistan into confidence. By ignoring the stipulations laid down in the Indus Water Treaty (IWT), the Indian premier seems to have created more confusion while undermining the IWT water mechanism established between the two states for the last 58 years. According to the Foreign Office, “Pakistan believes that the inauguration of the project without the resolution of the dispute is tantamount to violation of the IWT. True, to prevent a water war between the two nuclear South Asian States, seems a real peace audacity test for the Modi government. “This region cannot only become self-sufficient in power but also produce for other regions of the country. Keeping that in mind we have been working on various projects here for the past four years,” Modi said. Pakistan has maintained that the dam violates a World Bank-mediated treaty on the sharing of the Indus River and its tributaries upon which 80 per cent of its irrigated agriculture depends.
The Kishanganga Hydroelectric Plant is an $864 million dam which is part of a run-of-the-river hydroelectric scheme that is designed to divert water from the Kishanganga River to a power plant in the Jhelum River basin. It is located 5 km (3 mi) north of Bandipore in Jammu and Kashmir, India and will have an installed capacity of 330 MW. Construction on the project began in 2007 and was expected to be complete in 2016. Construction on the dam was temporarily halted by The Hague’s Permanent Court of Arbitration (CoA) in October 2011 due to Pakistan’s protest of its effect on the flow of the Kishanganga River (called the Neelum River in Pakistan). In February 2013, the CoA ruled that India could divert all the water leaving a minimum amount of water to the downstream of the dam on Kishanganga River for the purpose of environmental flows. The court also ruled that India was under an obligation to “construct and operate” the Kishanganga dam in such a way that it “maintains a minimum flow of water in the river”. The minimum flow was fixed at 9cumecs, a unit of flow equal to one cubic metre of water per second.
India declared that it was lowering the height of the dam from the planned 98m to 37m and resumed construction at full swing. Pakistan, however, collected evidence to prove that India was violating the treaty as well as the court’s verdict. In August 2016, Pakistan asked the World Bank to appoint a court of arbitration to review the designs of Kishanganga and another project on the Chenab, called Ratle. India rejected the suggestion, saying that Pakistan’s objections were technical in nature and that the matter should be decided by a neutral expert. Pakistan solicited that a decision by a technical expert was non-binding and India would be under no obligation to implement the expert’s recommendation. Subsequently, the World Bank, on the technical grounds, paused the judicial process.
The Kishanganga River, upon entering Pakistani territory is recognized as Neelum River that originates from Indian occupied Kashmir, and flows through the Gurez Valley to join Jhelum River near Muzaffarabad, at Domail, in Azad Jammu Kashmir. The construction of Kishanganga Dam is also in violation of Article III (4) of the Indus Water Treaty, which places an obligation or restriction on India not to construct any similar projects on western rivers, that is, on Indus, Chenab and Jhelum. Also, the construction of Kishanganga project will adversely affect the operational capacity of Neelum-Jhelum project. In accordance with Article III(2) of Indus Water Treaty, India is also prohibited from developing any human made obstructions that shall have or may cause a change in the volume of the natural flow of western rivers.
India is the upstream country and has built a few dams along the sharing rivers. Pakistan feels threatened by some of the dams and disputed this. Fairly speaking, the concept of Kishanganga Dam is itself is a blatant violation of the Indus Waters Treaty 1960, which has forced Pakistan to approach the International Court of Arbitration. The crux of the debate is that legally India is exploiting this technical edge that being an upstream country India can construct a dam. But New Delhi deliberately escapes to its bounden obligation that operation of such a dam or water reservoir should not affect the usage dynamics of the down- stream country, like Pakistan. In this backdrop, India has grossly violated the IWT. Without entering into the IWT framework, India can’t make a water reservoir.
“The Indus Waters Treaty is a profoundly important international agreement that provides an essential cooperative framework for India and Pakistan to address current and future challenges of effective water management to meet human needs and achieve development goals,” the World Bank said last week. The WB has shown its own technical limitations to further intervene into the matter. An insight into the customary water laws , a human right approach to trans-boundary rivers sharing in South Asia is an emerging synergy need. Melting of Himalayan glaciers due to climate change, increased pollution, growing urbanization, extraction, and depletion of groundwater have contributed to the decreased access to water for the people of South Asia. India’s unilateral violations have added fuel to an ill-fated South Asian citizenry. The application of public trust doctrine is an inevitable need in South Asia. For the benefit of their people, Pakistan and India could coordinate unilateral development and resolve issues rather than defer them. Yet viability of this peace option-between the two nuclear- armed South Asian neighbours- requires a trust-building atmosphere that is unfortunately missing in them.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.

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