Ambassador (R) Shafqat Kakakhel*
* The author is a former Ambassador and Deputy Secretary General of UNEP.
Pakistan depends for more than seventy per cent (70%) of its surface freshwater on the Indus River Basin’s major tributaries which originate in or transit through India and Kashmir and Afghanistan. Most of the rivers rising within Pakistan eventually drain into the Indus Basin. Critical dependence on transboundary rivers makes efforts to ensure, not only continued access to the rivers flowing from across our borders, but also broader cooperation with India and Afghanistan on water resource development and utilization – a key imperative of our water security.
The Indus Waters Treaty
The Indus Waters Treaty, negotiated with the invaluable assistance of the World Bank, signed by India and Pakistan in 1960, defines the rights and obligations of the two principal riparians of the Indian Basin. However, it must be kept in view that the Treaty was neither a water sharing agreement nor a blueprint for cooperatively managing the assets of the Indus Basin. Instead, it partitioned the six major rivers of the Indus Basin between India and Pakistan. The three eastern rivers – Ravi, Sutlej, and Beas – that had hitherto irrigated most of Pakistan’s lands were allocated to India. The three western rivers – the Indus, Chenab, and Jhelum – were to continue to flow into Pakistan but India was allowed to use their waters for hydropower production, human consumption, and irrigation.
Pakistan had evidently agreed to the Indus Waters Treaty – which was shaped by India’s insistence on having exclusive control over the eastern rivers – because it not only ensured its access to the flows of the three western rivers carrying nearly eighty percent(80%) of the assets of the Indus Basin but was accompanied by grants and loans to Pakistan for building the two large dams in Mangla and Tarbela and eight link canals to carry water to areas previously irrigated by the eastern rivers. The civil works funded by the World Bank brokered Indus Development Fund, led to unprecedented economic activity generating thousands of jobs. A unique feature of the Treaty is its elaborate dispute settlement mechanism providing for international arbitration to resolve differences concerning its implementation which cannot be settled at the bilateral level by the Permanent Indus Commission.
The Implementation of the Indus Waters Treaty
During the first decade and half since it’s signing, the implementation of the Indus Waters Treaty was smooth and hassle free. However, the Treaty came under strain as soon as India embarked on a massive program of building dozens of hydropower plants on the western rivers which it is allowed to do but under stringent conditions aimed at protecting Pakistan’s interests and with its prior consent.
Although the Indian hydropower projects are run by the river plants, using minimum quantities of water and do not entail large, permanent storage, they lend India a capacity to manipulate the flows of the rivers should it decide to use water as an instrument of war or coercion, especially during critical seasons of sowing of crops. The so-called ‘ cascades’ of dams have been a constant source of anxiety for Pakistan given the conflictual nature of Indo-Pak relations. All the major disputes over the Indian projects – which were resolved through high level bilateral negotiations ( e.g. the Salal Dam), a Neutral Expert ( e.g. the Baglihar Dam) and a Court of Arbitration ( the Kishenganga Hydropower project) – as well as the unresolved issue of the Willar Barrage/ Tulbul Navigation Project mirror this anxiety.
Pakistani officials also claim that India routinely violates the Indus Waters Treaty’s Rule Book by not providing timely information on its hydropower projects and when it does so the technical data is often incomplete. Moreover, India some times starts civil works for the projects prior to receiving Pakistan’s ‘no objection’. In September 2016, India threatened to hold in abeyance the meetings of the Permanent Indus Commission mandated by the Treaty although it had to rescind its unlawful threat after a few months.
India’s compliance with Article 6 of the Indus Waters Treaty concerning supply of data on river flows has also been uneven.
Regrettably, during the past two years the universally acclaimed dispute settlement mechanism prescribed by the Indus Waters Treaty has been seriously threatened by the inability of India and Pakistan to agree on either of the two arbitration options – a Neutral Expert favored by India or a Court of Arbitration demanded by Pakistan – to settle their differences over several Indian hydropower projects, including the Kishenganga plant which has in fact already been completed and inaugurated.
Gaps in the Indus Waters Treaty
Whilst Pakistan’s grievances mentioned above relate to the implementation of the Indus Waters Treaty, the Treaty also suffers from omissions of certain important elements – either because it was negotiated during the 1950s when international transboundary rivers law was in a formative stage or because some aspects of management of international rivers or likely drivers of water scarcity were not understood adequately or at all during the 1950s – which have adversely affected the efficacy of the Treaty. The Treaty does not provide for measures for the sustainable management of the watershed of the western rivers, which has suffered considerably due to deforestation. It does not deal adequately with the need to ensure the quality of the river water, which has deteriorated due to the dumping of municipal, industrial, and agricultural effluents. The Treaty is silent about the prudent, sustainable management of the groundwaters although they are an integral part of a river basin’s hydrology. The Treaty does not recognize the imperative of maintaining environmental flows in the eastern rivers allotted to India. The complete diversion of the waters of the Ravi by India has led to serious ecological damage. Above all, for understandable reasons, the Treaty does not take cognizance of the impacts of climate change, especially the recession of the Himalaya glaciers and disruption of the monsoon winds, which concern freshwater resources. Perhaps the most serious lacuna in the Treaty is that it does not provide for any mechanism to deal with a significant diminution in flows caused by climate change impacts.
Hiatus in Indo-Pak dialogue
The aforementioned deficiencies of the Indus Waters Treaty have been identified by Indian and Pakistani water resource experts during the so-called Track 2 dialogues which have suggested joint studies to provide reliable data and information on subjects that were not addressed by the Treaty. Regrettably, India and Pakistan have never discussed those topics because of their preoccupation with the Indian hydropower plants as well as the prolonged hiatus in their high level dialogue for over a decade.
Pakistan’s National Water Policy
Pakistan’s National Water Policy approved in April 2018 contains a short section (Section 9) on ‘Transboundary Rivers’ which voices Pakistan’s fears concerning the Indian hydropower projects and the gaps in the Treaty without , however, mentioning India! The Policy contains a number of suggestions noted below.
- The Policy calls for the sharing of transboundary aquifers and joint management of the watersheds of the western rivers. It proposed several measures to address its concerns – a “mechanism” for sharing the aquifers and watershed management as well as information relating to hydro-metreological disasters/ disaster like situations(such as flooding or droughts) threatening Pakistan’s infrastructure and economy.
- The Water Policy proposes to look into “regional mechanisms ” for addressing Pakistan’s “growing vulnerabilities” to “hydro- metreological disasters owing to transboundary (read Indian) releases and stoppages”. The authors of the Policy seem unaware that currently there is no “ regional mechanism” in South Asia and India is unlikely to allow any such arrangement.
- The Policy promises to carry out “a study to evaluate the impact of developments in the upper catchment of the western rivers on the environment, agriculture, and hydropower projects, planned and existing in the lower catchment besides the risk of damage and vulnerability to national infrastructure at large…”. The study is also meant to “suggest measures how to minimize these impacts within the framework of the Indus Waters Treaty and international water laws”. Clearly, this is yet another reference to the Indian hydropower projects and their likely adverse impacts on Pakistan. The Policy does not mention whether Pakistan intends to undertake this study on its own or would like to do it in collaboration with India.
- The Policy promises to explore “options…to preserve the environmental integrity of the ( Indus River) system to reduce hazards faced by the populations of areas of eastern rivers on the Pakistan side keeping in view the rights of lower riparian”. However, it does not identify the hazards. Pakistan’s stance on environmental flows in the eastern rivers has been recognized by the verdict of the Court of Arbitration established to settle the disputes over the Kishenganga hydropower project. The Court upheld the Imperative of environmental flows and asserted that “it would have to give due regard to the customary international law requirements of avoiding or mitigating transboundary harm and of reconciling economic development with the protection of the environment”.
In a defiance of the Court of Arbitration’s Award, in a high level meeting convened by Prime Minister Modi in September 2016 in the wake of an attack on the Uri military base, Mr Modi declared that India will ensure the utilization of every drop of the waters of the eastern rivers. Since then, India has approved the construction of several dams for storing and utilizing the small quantities of water (estimated at between 3- 4% of the flows of the eastern rivers) that have until recently been allowed to trickle through into Pakistan.
The need for a comprehensive water dialogue between Pakistan and India
Whilst there is no imminent threat of a deliberate disruption of water supplies by India, the impacts of climate change – in particular the recession of the Himalaya glaciers feeding the Indus Basin and erratic monsoon winds causing rains which replenish river flows and recharge aquifers – are likely to cause a diminution in the flows of the rivers. Both, India and Pakistan face the water-related threats posed by climate change which can be mitigated, at least partially, through cooperation and mutual learning to enhance water use efficiency in irrigation and develop livestock and crop varieties that require less water and are heat resistant. Such cooperation can be forged through a sustained water-centered dialogue at the political level and collaboration between the agricultural research institutions of the two countries.
Given the stridently hostile posture of Prime Minister Narendra Modi during the ongoing Indian election and India’s brutal suppression of the legitimate struggle of the Kashmiri people for freedom, which New Delhi explains in terms of Pakistan’s interference, the prospects of an early resumption of the stalled Indo-Pak dialogue do not seem to be bright. One can, however, hope that if Mr Modi is re-elected he might be willing to resume the bilateral dialogue paving the way for discussions on not only ensuring the effective implementation of the Indus Waters Treaty but also broader consultation and cooperation on transboundary water issues not covered by the Treaty. While hoping for that, Pakistan should carefully review its position on the means of external arbitration with a view to facilitating a breakthrough in the stalemate that poses serious risks for the Indus Waters Treaty. Being a lower riparian, Pakistan needs to make every effort to preserve the Indus WatersTreaty and ensure its implementation in letter and spirit.
The Kabul River
An unacknowledged but significant feature of Pakistan-Afghanistan relations is the sharing of seven rivers, which originate in the Hindu Kush region of Afghanistan and enter Khyber Pukhtunkhwa and FATA region. The Chitral River rising in the foothills of the Hindu Kush in Chitral enters Afghanistan’s Kunar province and adopts its name. It merges with the Kabul near Jalalabad adding more than half of its waters before the Kabul enters Pakistan near Torkham. The Swat River also drains into the Kabul and the twin eventually merge with the Indus at Attock augmenting its assets by between eighteen(18) and twenty one(21) Million Acre Feet(MAF) of water. The Gomal River, which is an indispensable source of freshwater for Waziristan, also eventually drains into the Indus.
Importance of the Kabul River for Afghanistan and Pakistan
The flows of the Kabul constitute no more than sixteen percent (16%) of Afghanistan’s water assets. But it is critical for meeting the drinking water, electricity, and irrigation needs of the seven million Afghans living in Kabul and several other towns. Afghanistan has already built several small dams for irrigation and power generation and has planned to construct several more for meeting the growing needs of its rapidly growing population. The Kabul River is equally crucial for Pakistan. The Warsak Dam, built in the early 1950s and enlarged subsequently, has a capacity of producing more than 200 MW of electricity and the canals flowing from its reservoir irrigate most of the agricultural land in the fertile Peshawar Valley apart from providing drinking water for the burgeoning population of Peshawar and its adjoining towns. Notably, the flows added by the Kabul to the Indus increase during March/April due to early start of melting of ice and snow in the Hindu Kush glaciers and are indispensable for the sowing of Kharif crops in southern Punjab. Therefore, a major reduction in the flows of the Kabul into Pakistan likely to be caused by large multipurpose dams would undermine Pakistan’s energy and food security.
A water sharing agreement between Afghanistan and Pakistan
In 2003, news reports of Afghanistan’s plans to construct as many as a dozen dams in the Kabul Basin with financial and technical assistance from India led to public statements by the Pakistan Water and Power Minister and high ranking officials calling for an agreement between Afghanistan and Pakistan on the sharing of the waters of the Kabul on the the model of the Indus Waters Treaty. The same year, Pakistan sent a nine-member team to Kabul for preliminary discussions on a water sharing treaty. However, Afghan officials declined to hold substantial discussions claiming that they neither had the relevant hydrological data nor technical competence for the proposed negotiations. An offer by the World Bank in 2006 to facilitate an agreement on the joint management of the Kabul River Basin also failed to elicit a positive response from Kabul.
During the past decade and a half, Afghanistan has made great strides in legal and institutional development for dealing with domestic and international dimensions of water issues, including the enactment of a Water Law, the establishment of River Basin Councils, and the setting up of a Supreme Council of Water Resources. External technical assistance has also helped enhance the capacity of its Ministry of Energy and Water and water resource institutions.
The most significant development relating to Pak-Afghan cooperation in water resource development is the agreement in principle reached by the Finance Ministers of the two countries in August 2013 on mobilizing investment for, and jointly building and operating, a hydropower project for producing 1500 MW of electricity on the Kunar River. The Pak-Afghan Joint Economic Commission discussed follow up measures, including the selection of a site for the project and the establishment of joint working groups on addressing all other relevant issues. However, the agreement has not been pursued because the Joint Economic Commission has not been convened since 2015. In December 2016, the Afghan Ministry of Energy and Water conveyed interest in holding high level discussions on water related collaboration. Pakistan has not evidently responded to the suggestion.
The current ‘no conflict, no dialogue, no cooperation’ status quo in respect of the Kabul River Basin is inherently unsustainable given Afghanistan’s increasing water, energy and food deficits and its long standing plans to harness its water assets, including those of the Kabul Basin, for addressing the shortages. The vital contribution of the Chitral River to the flows of the Kabul which makes both Afghanistan and Pakistan the upper riparians in respect of the Kabul River provides a rationale for their collaboration in developing and utilizing the waters of the Kabul Basin. It is, therefore, suggested that, as soon as conditions in Afghanistan allow, Islamabad and Kabul should commence a comprehensive dialogue on cooperation for the optimum development of the Kabul Basin on the basis of benefit sharing. They should also resume the discussion on the Kunar Project at an early date. Meanwhile, Pakistan should, in collaboration with relevant multilateral agencies, prepare studies based on a number of scenarios of water resource development in the Kabul Basin within Afghanistan as well as identify how it can assist Afghanistan in addressing water resource development and management issues.
The success of dialogues between Pakistan and India and Afghanistan would depend on the political will of their leaders, adequate homework by the relevant institutions, and support by international agencies (such as the World Bank) with a track record in contributing to the success of initiatives for collaboration between co-riparians of International rivers. Civil society organizations and the media in Afghanistan and Pakistan can play an invaluable role in ensuring the success of such initiatives.