Water and National Security
0 comments | by Ahmer Bilal Soofi
Water issue between India and Pakistan is a time bomb that needs to be addressed immediately, seriously and earnestly. Water, it seems, is on top of the agenda on the Pakistani side of the border, relegating even Kashmir to a second position. Water shall become the real bone of contention and all the rest shall become secondary. Pakistan government and the political leadership have remained negligent in respect of serious research on the water issue but the time has come to redress and to make up for this default. (Editor) Let's give credit where it is due: the Indus Waters Treaty is a unique legal instrument and well-negotiated in the context of circumstances as they existed in 1960. It has survived at least two wars and, in fact, its continuation is viewed as a legal basis to make determination that the so-called war of 1965 was not a 'war' instead an armed conflict -- because the Indus Waters Treaty was not cancelled by the parties and hence it was concluded, by a commercial arbitrator, that the 1965 war was actually an 'armed conflict'. We are now in 2010. The debate India is violating the Indus Waters Treaty has heated up again. The military strategists view blocking of water by the Indians as one of the justifications to seriously contemplate the use of nuclear weapons. Therefore, intelligent handling is crucial for the peace and mutual benefit of the two nuclear armed states. After all it is a sensitive relationship of an upper riparian and lower riparian -- of water distribution, water scarcity and preservation of water resource. I fear this debate may not be handled intelligently by the two sides; particularly Pakistani -- because firstly, it has already been made a political issue by the political forces against India and secondly, the scholarship on Indus Waters Treaty is almost non-existent here. This is shocking. Pakistan's survival is based on water -- and yet since 1960 there is no organised or institutional initiative to carry out proper research on the implementation of the 1960 Indus Waters Treaty. The occasional reports by the government entities like the Ministry of Water and Power, projects study for reservoirs, occasional reports by consultants co-opted by the Ministry are not enough. Unfortunately, in Pakistan collection of facts and data are considered to be "research" when this is only a small part in developing a complete picture: Year-wise data of water flowing into Pakistan, its collection and tabulation either through the ministry or through the Indus Water Commissioner is deemed to be sufficient work done to handle the water resource issue of Pakistan.
The fact of the matter is that Pakistan needs to thoroughly research issues associated with upper/lower riparian states, such as to examine the legal modules developed in Europe, North America, Africa and Far East on upper/lower riparian states and assess their application to the Indo-Pak model; collect decisions and awards of arbitration amongst various countries to identify the directions in which international jurisprudence on water disputes is moving; collect all bilateral treaties of upper/lower riparian states to ascertain if the Indus Waters Treaty has fallen behind time or how can one innovatively use the existing provisions of the treaty. It is interesting that Pakistan has never convincingly argued that notwithstanding the bilateral commitment under Indus Waters Treaty, India has an obligation towards Pakistan to preserve water in its catchment areas for the benefit of lower riparian use -- that is, Pakistan. Importantly, this obligation is under the principles of customary international law. It can be argued that even if there is no Indus Waters Treaty, India is still under an obligation to let considerable water flow into Pakistan. The 1992 Convention on protection of trans-boundary water courses and 1997 Convention on the law of non-navigational uses of international water courses can serve as useful modules and codification of international laws as declared by the International Court of Justice in 1997. Particularly since the conventions support Pakistan's version. It is believed that water sharing compels the upper/lower riparian states to coordinate water distributions -- and so "water unites". Regrettable, instead of taking the course of getting closer on account of water sharing issues, India and Pakistan are drifting in opposite direction of the "water divides".
Pakistan needs to focus on research on water laws. A group of legal experts need to examine the legal aspects of the water sharing treaties, the development of water laws with emphasis on obligations of an upper riparian state and assess cases of national and international courts. Such a group may be formed outside the government system -- to carry out in depth research on the issue and then make recommendations to the Federal government/Mofa. This research work may also help Pakistan highlight the legally justifiable points before the US government, EU and other international players. Given water is a national security issue; there should be multiple initiatives of research essentially conducted by water or legal experts. Possibly, a few persons can be send abroad to specialise on rights and obligations of upper/lower riparian states. What Pakistan needs to focus on is that India continues to build hydro projects and dams, as they are technically permitted under the Treaty, but in the process the 'spirit' of the Treaty of 'satisfactory utilisation of the waters' is getting defeated. The rivers in Pakistan are visibly getting dry. Water flow has become scarce. Thus, the 'spirit' of the Treaty needs to be revived and pressed as an issue having preference over technical compliance of the Treaty. During negotiations with India on the issue, Pakistan has so far only put the Indus Waters Treaty on the table -- as a basis to claim its share and to assert its right -- whereas it needs to put along on the same table a stack of material, legal references, conventions that place additional obligations on India to ensure that Pakistan as a lower riparian state is entitled to proper share of water. The time has come to redress and to make up for the default otherwise we as a nation will continue to suffer.