Daily Times

Indus Water Treaty: Political and Legal Dimensions
Author: Ijaz Hussain
Publishers: Oxford University Press, 2017 Karachi
Price: Pak Rs 2,595
Pgs: 563

The fourth major water dispute between Pakistan and India is about the Kishenganga (called Neelam in Pakistan) Hydroelectric Project. India is building it on a major tributary of the Jhelum River in Jammu and Kashmir. In 2009, Pakistan had asked for international arbitration. In 2013, the arbiters decided that India could build the project since it was ‘a run-of-river’ plant. However, India was not allowed to reduce the water level below dead-storage level.

The remarkable thing about the final verdict was that it was unanimous. This means that the two nominees of India voted against their country. The author does not profess to understand the reasons for this. He says that if they acted honestly then ‘they deserve to be applauded’ but adds with his usual cynicism (as behoves lawyers) that the international community must have pressurised them to do so since it would ‘imperil peace between two nuclear-armed South Asian neighbours’ (p. 310). In the absence of evidence, it is impossible to say with certainty what would have transpired but it does indicate that, despite hostilities, the treaty still makes it possible to redress grievances through civilised means.

Two more disputes are covered by the author: the Nimoo Bazgo and Chutak Dams. Both were launched in 2005 and became operational between 2011 and 2016. These projects had cost Jamaat Ali Shah, the then Pakistani commissioner, his job in 2010. Apparently, he did not inspect the site of the dams initially and, when he did apply to do so to the Indian authorities, he was removed. Apparently, India applied for ‘carbon credits’ — which is a certificate from the United Nations Framework Convention on Climate Change (UNFCCC) — for reducing the emission of greenhouse gases. Such credits could not be issued unless Pakistan had given EIA reports for them. When the credits were given in August 2008, the Pakistani authorities did not know who had given India the EIA reports. Jamaat Ali Shah was blamed for having delayed his inspection allowing India to go ahead with the dam and the media speculated that he had been grossly negligent. However, Shah was eventually exonerated of all charges.

The media, it must be noted, whips up public fury over concocted conspiracy theories. For instance, when there was flood in 2014 the media said that India had released excess water to cause floods. The Pakistan Commissioner — not Jamaat Ali Shah this time — clarified that India had given prior warning and even notified the quantum of water which was headed towards Pakistan observing that if ‘we fail to take effective measures in minimising the estimated loss, India should not be blamed’ (p.317).

The most alarming chapter is entitled ‘Treaty in Trouble’ (No 8). Here, the author describes the dangers to the treaty. Pakistanis, as we have seen, regard it as Ayub Khan’s sellout to India. More alarmingly, Indians too have reservations about it. One of the grounds which Indians cite nowadays is that Pakistan has already broken the treaty of peace between the two countries by sponsoring non-state actors who cross into Indian controlled territory and perform acts of sabotage. This being so, India too can break the treaty. This is a genuine concern and here the author’s whole treatment of the question is, to my mind, that of a nationalistic hawk and not a humanitarian who should be a lover of peace and a friend of humanity.

He begins by quoting a number of legal theories and precedents to prove that actions of non-state actors cannot be blamed on governments and, that, terrorist activities have decreased. As for the first, he toes the official line that the military does not effectively control the militants. His second point has been disproved after the Uri attack in 2017 which created a very alarming situation on the borders. While nobody can bring any proof which is admissible in a court of law that the Pakistani military does, at some level, either controls or at least not punishes the militants who attack India, there is enough circumstantial evidence to make most neutral persons believe that this is so.

In any case, this matter is not under discussion just now. What is germane to the issue of water is Dr Hussain’s argument that India’s ‘usurping of Pakistan’s share of water may result in confrontation’. A few lines later he calmly states that this may be in the form of a nuclear war. With such a terrible future facing South Asia, one would have expected a humanitarian to favour peace. But the author calls it accepting Pax Indica and favours remaining defiant (p.426). He does not advocate war but he does say that the possibility of war cannot be denied since, in his view, Pakistan will stay defiant. For anyone knowing so much about the possibility of such a conflict it would have been better if the author had suggested the means of reducing tensions. In my opinion, war would not solve the problem of water at all. Indeed, a nuclear war would ruin the civilisation of this ancient land for centuries to come. This is, in Hermann Kahn’s immortal phrase, ‘thinking of the unthinkable’ and a book of this level of maturity and erudition should advise against such kind of thinking. In my view, anything should be preferable to a nuclear conflict, but this does not seem to be the author’s view.

What I have stated above is a personal difference of opinion with the author. It does not detract from the academic worth of the book. The author is exceptionally erudite having mastered the huge archive on the IWT. He has spent from his own pocket to access the World Bank documents in Washington D.C though — given the state of tension between the two countries — he could not access the documents in India. Ironically, despite all his efforts he could also not obtain the documents in Pakistan. Still he bravely struggled on and argues from an impressive collection of original sources, interviews, e-mail narratives and so on.

His method is that of a lawyer in that he brings in history and precedents and argues in clear-headed terms about the cases in hand. The book has a large number of maps, facts and figures which make it a treasure trove for the scholar. It is, indeed, a landmark which will be referred to and quoted by future historians and political scientists for a long time to come. I recommend the book to policy makers, historians, political scientists, and the general reader and I congratulate the author and the publishers for having put in so much effort to bring such a useful study to the reader.