Kishanganga: Some thoughts for arbitrators
Dr Raja Muhammad Khan


The Indus Water Treaty (IWT)-1960, brokered by World Bank had devised a best use of the water of Indus River System by India and Pakistan. The treaty is unique in a way that, rivers were divided, rather the share of water from each river between the parties (India and Pakistan). According to this treaty, there is an exclusive right of Pakistan over the water of three western rivers (Indus, Jhelum and Chenab). Similarly, India has exclusive right over eastern rivers. Being a lower riparian, Pakistani right over the down stream flow of water has always been manipulated by India. India has never allowed the down stream flow of the desired quantity of water from the eastern rivers, otherwise guaranteed in the IWT. This discriminatory Indian act has created many environmental problems in Pakistan. The worst discrimination has been that during rainy seasons, India allowed flow of huge water in these rivers, causing flood in low laying areas of Pakistan.

Apart from this, over the last 2-3 decades, India is constantly manipulating with the water of western rivers, whose exclusive rights are with Pakistan. India constructed Baghaliar Dam over Chenab River without consulting Pakistan. Construction of this dam caused huge sum of water losses to Pakistan. Unfortunately, the international arbitration did not give a verdict that fulfils the criteria of the justice. Over the Jhelum River, it is in the process of constructing Wullar Barrage (Tulbul Project). Besides, India is in the process of making over seventy small and large dams and water storages over the western rivers having exclusive rights of Pakistan. Upon completion of these projects, Pakistan will be facing acute shortages of water and its agricultural land will convert into desert. US lawmakers and Council on Foreign Relations have already warned about such issues, ultimately leading to water wars in South Asia.
IWT-1960 clearly spelt out the rights of India and Pakistan over their allotted and agreed share of water. Had India been following the treaty in true spirit and neighbourly relations, there would have been no problem. Article III of the Indus Waters Treaty, clearly says that, “Pakistan shall receive for unrestricted use all those waters of the Western Rivers which India is under obligation to let flow under the provisions of Paragraph (2)” of the treaty. Paragraph (2) elaborates, “India shall be under an obligation to let flow all the waters of the Western Rivers, and shall not permit any interference with these waters.” Restricted uses of the water from western rivers is allowed for; domestic purposes and non-consumptive agricultural uses by local inhabitants. Besides, the locals are also allowed to generate the hydroelectric power without interfering in the down-stream flow of the water.
All these provisions are adequately covered in the IWT-1960. The treaty clearly states that, “Pakistan shall have the unrestricted use of all waters originating from sources other than the Eastern Rivers that are delivered by Pakistan into The Ravi or the Sutlej, and India shall not make use of these waters.” Furthermore, Article IV(6) of the IWT states that, Each Party will use its best endeavours to maintain the natural channels of the Rivers, as on the Effective Date, in such condition as will avoid, as far as practicable, any obstruction to the flow in these channels likely to cause material damage to the other Party.
Unfortunately, India is bent upon to divert the water of Neelum River, a tributary of the Jhelum River through a canal system under the Kishinganga Project. The project is even backed by Indian Supreme Court, which has ordered to complete it by 2016. It is to be mentioned that worldwide courts are working for the provision of justice, across the board. Despite Pakistani concerns over the project, Indian Government seems to be in a hurry to implement the project, which envisages 30 links across Himalayan and peninsular rivers.
For the India, this an advantageous project for the water distribution to fulfil the needs of its electricity and agriculture, but what about those in Azad Kashmir, who will be deprived of this blessing, through non-natural means. Did not Indian Supreme Court bother to ponder on this aspect of human rights? The international seven members Court Arbitration under the chair of Judge Stephen M. Schwebel (US national), former President of the International Court of Justice has to pay attention on the issues of human rights. The Court of Arbitration that has to give its verdict in about next 5-6 months must consider some important aspects, affecting the lives of the people of Azad Kashmir, residing along this tributary of the Jhelum since centuries. If India is allowed this inter-river linkage; Kishanganga Hydro Electric Project (KHEP), there would be severe water shortages of water for the vast Kashmiri population residing all along the Neelum River.
Furthermore, water of this river being used by the local dwellers for the agricultural purposes. Indian diversion will deprive the locals from this most essential source of earning of their food. It will force the people to migrate from their ancestral locations, which would not be less then an agony for these dwellers. Is there a plan in hand by international community (UNO) to rehabilitate the masses of AJK, residing and banking on the water of Neelum River? Then there is an under construction Neelum-Jhelum Hydro Electric power project, for the people of this area.
Pakistan and people of AJK expect that, the Arbitration under Judge Stephen M. Schwebel will take into consideration the ground realities. Kashmiris have already suffered and they are still suffering under the repressive Indian acts. The world has been inhospitable and unjust towards Kashmiris, in giving them their right of self-determination. Let there be an end to the discrimination. Let there be an era of peace and prosperity for poor Kashmiris too. After all, for how long, India is allowed to make use of its military might to suppress the right of Kashmiri masses on either side of the LoC.