The conventional wisdom in Pakistan is to treat the issues related to water resources as essentially technical, economic, engineering and irrigation related.
The notion is based on past governing practices in which any discussion and negotiation on water issues has been sole domain of engineers. With due reverence to all fields of knowledge applicable in water issues, it warrants emphasis that these water issues are primarily legal and of international character.
Context and Background
For convenience, it may be stated that the genesis of today’s water resources issues can be traced back to the time of partition, where like all assets, the water assets had to be divided amongst the two dominions of the erstwhile Subcontinent. The envisioned mechanism to ensure peaceful distribution of assets was twofold: first was a committee that had to decide on division of assets, the second was a tribunal headed by the chief justice of pre-partition judiciary, Sir Patrick Spens, which could address any issue permeating the committee tier. The tribunal was temporal and was to work till 31st March, 1948. The said date was legally important and was of international character as division of assets included dealing of two states.
On 1st April, 1948, India opted to cut off the water supplies in every canal crossing into Pakistan. The pinch of the action was translatable to affecting drought in Pakistan’s agricultural hub i.e. Pakistan’s side of the Punjab. Instantly, a delegation led by Ghulam Muhammad, the then Finance Minister and two ministers from the West Punjab — Shaukat Hayat Khan and Mumtaz Daultana — was sent to India. Indian government was hesitant to oblige Pakistan, and after deposit of seigniorage charges in escrow account, the water supply was restored.
The above stated background is a reminder of the fact that today’s issues of water resources of Pakistan have their seeds in intense foreign and legal perspectives, which even today, find little attention. Emanating from this background, water resources issues, in Pakistan, have two chief sides: one is the international water law aspect in the form of Indus Waters Treaty (IWT) that is related to distribution and managing of rivers of Indus Basin and its irrigation system; and the other is the inter-provincial water distribution, which has at its base, inter alia, the difference of availability of water to be distributed and which interlinks to the IWT ultimately.
The reverberation of IWT in both aspects necessitates its detailed understanding. Anyone interested to understand the IWT and its allied issues in the language of foreign policy that is best expressed through vehicle of international law must read two short but conceptual articles: first is Hamid Sarfraz’s ‘Revisiting the 1960 Indus Waters Treaty’, and second is “The Indus Basin: Challenges and Responses by Erum Sattar, Madison Condon, et al. Besides, the 1997 “United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC)”, and “The Helsinki Rules on the Uses of the Waters of International Rivers,” 1966 may serve as a legal guide on the point as though UNWC is not yet in force, it does offer wisdom extracted from international water jurisprudence and may, at times, highlight principles of law that may be regarded as of customary international law value. The IWT, determination by neutral expert in Bagliar Hydroelectric Plant in 2007 and partial award by the Permanent Court of Arbitration in 2013 are, of course, must read stuff on the point. Fortunately all the material is just a google away.
Résumé of Significant Points
There are certain issues which may supply food for thought for framing and analyzing foreign policy considerations vis-à-vis international water law as applicable between India and Pakistan in form of IWT. These points are as under:
1. Harmon Doctrine vs. Equitable Utilization
Lt. Gen (Retd) Eric A Vas in his article ‘Troubled Waters: Should We Revisit Indus Waters Treaty’ has acknowledged the impact of Harmon Doctrine on Indian thinking at the time of negotiations of IWT. This begs for understanding the Harmon Doctrine. Water has been essential for human existence since time immemorial. However, with the sophistication and evolution of human society, water got recognized as a resource. Its watercourses got more attention and the uses of those were divided into navigational and non-navigational by the end of late nineteenth century with former category regarded more valuable than the latter. It is with the industrial revolution and advancement in technology that irrigation, hydropower and flood control became sources of progress, and the non-navigational value of water came at par with its navigational significance. This gave rise to riparian, utility and storage disputes of non-navigational waters. The non-navigational uses of Rio Grande River located in the US and Mexico became a legal moot point between the two states as the water was diverted in the US, hence rendering Mexico deprived of its share. On 21st October, 1895, US Attorney General, Judson Harmon, on solicitation from the Secretary of State Richard Olney, submitted his legal view on the matter and opined that a country is sovereign over the portion of international watercourse within its borders. He expressed his thinking as:
“The fundamental principle of international law is the absolute sovereignty of every nation against all others, within its own territory.”
The mindset of India led to manipulation of its position and natural location. The ultimate result was apportionment of western and eastern rivers in IWT. Conversely, Pakistan’s viewpoint was based on a competing legal principle that transcended above the selfish and parochial Indian approach. The legal principle of equitable and reasonable utilization, which is now the cornerstone of UNWC (Article V), was rejected by India. It may also be stated that the principle of equitable and reasonable utilization of watercourse was not an invention of UNWC, but was based on case law of international legal adjudicatory bodies as well as of Helsinki Rules of 1966. On the basis of equitable utilization principle, Pakistan was entitled to 90% of waters; however, it confined its claim to 75%, but with the domination of Harmon Doctrine, the rationalized equitable claim of Pakistan didn’t materialize. The aforementioned research paper lucidly captures the essence of IWT in the following words:
‘…the two countries agreed to allow principles of engineering and economics to drive the process rather than using legal considerations.’
2. Privies to IWT
The partakers of IWT are two states, India and Pakistan — and one international organization, International Bank for Reconstruction and Development. The privies of IWT, according to Hamid Sarfraz, make it peculiar, and ‘an element of third party mediation to treaty’ is added. This is different from the provisions of UNWC, which only foresees states as privies to UNWC as contained in Article IV of the Convention.
3. Legal Assessment Model
The Centre for Water Law, Policy and Science at the University of Dundee, according to Hamid Sarfraz, has come up with a legal assessment model for international water treaties. For anyone interested in maximizing the knowledge base on the subject, the model may be useful. Applying the model to IWT, the following skeleton scheme of IWT comes fore: Scope (Articles I and XI); Substantive Rules (Articles II, III and IV); Procedural Rules (Articles V, VI, VII, X and XII); Institutional Mechanism (Article VIII); and Dispute Avoidance and Resolution (Article IX). The model provides a handy tool for anyone willing to go through text of IWT in a systemic manner.
4. Compliance and Dispute Resolution
By and large, IWT is considered a successful treaty as its mechanisms for dispute avoidance worked even in most hostile and warlike situations between the two countries. It may, however, be noted that the Neutral Expert in case of Baglihar Hydroelectric Plant Case observed that IWT was agreed at the time of ‘tension’ between the two states. The treaty envisages a cascading dispute resolution mechanism, which approach has been confirmed by UNWC also a general principle for dispute resolution. In case of IWT, the series of dispute mechanisms starts from appointment of commission, Neutral Expert (NE) and then Permanent Court of Arbitration (PCA). For narrating the state of dispute resolution, it is worth stating that in the new state of water resources, the differences between the two countries under IWT have been on construction of dams. The two cases that have gone for dispute resolution merit brief mention:
a) Baglihar Dam Case
In 2002, India started construction of a 450 MW dam at a tributary of river Chenab. As the Chenab is a western river, therefore, Pakistan started observing the activity and in 2005, formally objected to its design. After initial efforts and formalities, Pakistan took the matter to the level of Neutral Expert. Mr Raymond Lafitte, Professor at the Federal Institute of Technology of Lausanne, Switzerland, was appointed the NE. He passed his Determination in 2007 and besides analyzing legal points, addressed the technical aspects also. The Determination appears to be more on the basis of engineering aspects than on legal aspects; however, it is now a fait accompli that has to be acknowledged. The input of foreign office and international law in the case appears to be minimal.
b) Kishanganga Dam Case
The case involved a dam that was being built at a tributary of river Jhelum in the jurisdiction of India. Since, Jhelum is a western river, Pakistan kept monitoring the construction and in 2010, it after fulfilling the formalities, referred it to PCA. Two disputes were raised by Pakistan: (a) the permissibility of diverting water of Jhelum and its tributaries against the provisions of IWT; and (b) the permissibility of depleting reservoirs under IWT. PCA in its partial award allowed India to ‘divert’ water in such way as to follow the minimum flow of water at a rate to be determined in the final award.
Deciding victors in two cases may not be healthy. Suffice is to say that the threshold of dispute avoidance under IWT has been crossed in both the cases as matters were ultimately not decided in the way they were decided since inception of IWT.
The nexus of foreign policy and international water law, if fully explored, takes it to the Kashmir dispute, where the ultimate control of the western rivers lies. Pakistan needs to introduce input of a highly specialized foreign service into its policy formulation as the challenges of the new and emerging realities in highly globalized world are necessitating fresh and erudite approach. As far as IWT is concerned, it is not a perfect document; as is the case with any treaty in the world. The shortcomings of IWT include its failure to address climatic variance, environmental considerations and insistence on water apportionment instead of coordinate management of natural resources as precious as watercourses of the two countries.