THE recently issued Kishanganga arbitration award has again proved what I have been saying all along: that by invoking the dispute resolution mechanism of the Indus Waters Treaty (IWT), Pakistan cannot halt India from undertaking various upstream hydroelectric projects and it needs to bilaterally take up this matter. In this regard, certain observations in the award are actually quite helpful and Pakistan must make use of them.

But let’s be clear. We can blame India’s conduct as an upper riparian state only up to a point for our water issues. What of our own conduct and responsibilities as a lower riparian state? Lamentably, we have been wasting our water resources with almost criminal negligence and abandon.

In fact, what Indian scholars highlight in my interaction with them at international conferences is that Pakistan must share responsibility for the wastage of water on its territory as its people and successive governments have failed to undertake effective measures for the storage of water or its more constructive utilisation.

Under international law, a positive obligation to not inflict unreasonable harm on the lower riparian state restricts the sovereignty of the upper riparian state. However, while the upper riparian is almost like a trustee for the lower riparian and must therefore adopt suitable measures to preserve the catchment areas, its failure to do so does not absolve the lower riparian from its independent obligation to manage water flowing through its territories so as to ensure both equitable and reasonable utilisation of shared water resources.

Crucially thus, the optimal management of water through means such as storage facilities and dams remains the equal responsibility of a lower riparian state like Pakistan.

Moreover, international law binds Pakistan to better manage its territorial water resources in order to secure the right to water of its citizens under Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, which Pakistan ratified in 2008. Failure to give effect to our obligations under the ICESCR may now have consequences of its own in the context of recently granted GSP Plus status by the European Union.

Given this legal framework, the provinces ought to appropriately approach the matter of management of rain and floodwater as well as of construction of dams in the light of Pakistan’s legal compulsion under international water law. Importantly, a possible failure to reach consensus on the Kalabagh dam should not prevent the federal government and the provinces from planning and undertaking an extensive programme of construction of several other dams in order to fulfil Pakistan’s international legal obligations.

Presently, under the water accord of 1991, the provinces remain focused on the agreed upon water flows while completely ignoring Article 6 of the accord which states that “the need for storages, wherever feasible on the Indus and other rivers was admitted and recognised by the participants for planned future agricultural development”. Thus far, the provinces have planned no water storage pursuant to Article 6. Significantly, this noncompliance by provinces also hinders the federation from fully performing its international law obligations.

Since provinces are subsets of the federation, they are also bound by international law obligations. Therefore, irrespective of Article 6, the upper riparian province has a responsibility to let flow the water while the lower riparian province has the responsibility to preserve and make storages to avoid wastage of water resources.

In addition to the construction of dams for efficient management of water resources, international customary water law also mandates Pakistan to preserve water during floods and rains. At present, no provincial plan for the management of floodwaters exists. In this regard, Justice Mansoor Ali Shah of the Lahore High Court penned a highly illuminating judicial inquiry tribunal report in 2010 extensively detailing the reasons and causes of floods. The report also highlights the critical role of dams in water management and recommends construction of several dams. The lower riparian provinces ought to seriously implement the report’s recommendations.

The Kishanganga Award must be assessed holistically in the light of the above context. If, as the lower riparian state, Pakistan had taken an early initiative in the planning of Neelum-Jhelum, it would then have been able to persuade the International Court of Arbitration to allow more flow of water into Pakistan.

Although this delay has been costly for Pakistan, it also reinforces the importance of fulfilling our obligations of managing and conserving water resources as a lower riparian state.

I am afraid that the failure of the federal and provincial governments to plan for construction of dams and water reservoirs will legally and politically weaken our stance against India which is unabatedly constructing several more dams in a far smaller catchment area than ours.

Whereas India has built 63 large dams in its northern areas in the last 30 years, Pakistan has only built two large dams along the Indus passing through a stretch of over 2,000 kilometres on its territory. There is no question that we have been acting as an irresponsible lower riparian state.

In the wake of greater provincial autonomy after the 18th Amendment to the Constitution, it is imperative that provinces demonstrate greater responsibility and resolve in managing the country’s water resources. Extensive plans for the management of Indus waters as well as flood and rain waters must be developed and initiated without any delay.

The writer was a caretaker federal law minister.

ahmersoofi@hotmail.com