Daily Times

In July 2010, the UN General Assembly (UNGA) recognised access to water and sanitation as a fundamental right. However, they did not specify that the right entailed certain legally binding obligations. The governments of Germany and Spain, with support from many others tabled a resolution to close this legal gap by clarifying the foundation for recognition of the rights and the legal standards which apply. The UN Human Rights Council has affirmed that the right to water and sanitation is derived from the right to an adequate standard of living.

India and Pakistan are locked in a continuous clash of claims over water in Jammu and Kashmir. Water resources are finite, hence the actual stewardship of water resources in any part of Kashmir should rest with the people of Kashmir.

Water politics between India and Pakistan are both strange and interesting. They expose the manner in which the two countries have been shifting the goal posts of their interests. They have failed to appreciate that water in Kashmir is a natural resource, and is embedded in the natural habitat of the disputed State. It is a trust property, and remains part of Kashmir’s self-determination package.

It is a violation of trust that India and Pakistan have been taking unilateral decisions in regard to water in Kashmir. Both countries have failed to incorporate the right of the people of Kashmir in the management of water uses and water-related activities under the Indus Water Treaty. Governments must fully implement their obligations to create an enabling environment and to regulate and monitor the right to water and sanitation in the three administrations of Kashmir.

On August 21, 1957, the Indian Government reported to the UN Security Council (UNSC) that Pakistan was likely to execute the Mangla Dam Project in Mirpur and exploit the “resources of the territory to the disadvantage of the people of Jammu and Kashmir and for the benefit of the people of Pakistan”. The Indian letter S/3869 dated August 22, 1957 flagged that Islamabad’s actions were in violation of the Security Council Resolution of January 17, 1948. The complaint further reiterated that the Government of the State of Jammu and Kashmir is the only lawful Government of the State under the Resolutions of August 13, 1948 and January 5, 1949. India also filed a three page report titled “The Mangla Dam Project” marked at the UN Security Council as S/3869.

It is only a few years down the road that in 1960 India and Pakistan entered into the Indus Water Treaty to share the waters of Kashmir. The extent to which Pakistan failed to appreciate its obligations towards water as a trust property, is revealed by the broadcast of Ayub Khan to the nation made on September 4, 1960. He said that the terms of the Treaty were “the best we could get under the circumstances, many of which, irrespective of merits and legality of the case, are against us”. There is a sense of apology and it implies that something had been sacrificed by Ayub Khan in the process.

Keeping out the full regime of the politics of the Kashmir dispute, waters are the natural resource embedded in the disputed habitat of Kashmir. India and Pakistan could not have these waters with ‘no holds barred’. Waters and other natural resources have to be recognised as trust properties by India and Pakistan. Pakistan has to defend these Kashmiri natural resources.

The use of water in the Indus Water Treaty has not been aligned on a principled, fair and just basis. It does not recognise the interests of the affected people (Kashmiri) and has failed to develop a mechanism to include those interests in decisions related to water allocation. Under the Treaty, the government of India on its part has breached the trust embedded in the temporary instrument of accession. India cannot trade a Kashmiri natural resource with Pakistan, or vice versa. Pakistan has corresponding trust obligations to help the people in opposing India in her efforts to exploit Kashmir’s natural resources.

If Pakistan had played by the jurisprudence of the UN Resolutions on Kashmir and had not turned cold on the merits of Kashmir case over the past many years, India would have been on the run from day one. The waters of Kashmir are a natural resource, embedded in the disputed habitat of Jammu and Kashmir. Under UN Resolutions, these are trust properties and India has no legal claim over these waters. It is high time that the people of Kashmir were offered help by the Government of Pakistan in highlighting the manner in which India has exploited these natural resources (waters), against the wishes of Kashmir’s people and how India has failed to hand over all water projects to the Jammu and Kashmir Government.

I have chaired a Working Group meeting in Delhi in 2004. It was attended among others by Abdul Rashid Shaheen MP National Conference, CPI (M) MLA Mohammed Yousuf Tarigami and other distinguished participants. After a rigorous debate it was resolved that waters of Kashmir are a trust property, embedded as a natural resource in the disputed area. Water resources in the natural habitat of Kashmir need to be defended as an integral part of self-determination.

The writer is the President of JKCHR — NGO in the Special Consultative Status with the United Nations. He is on the UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He is a senior advocate of the Supreme Court. Author could be reached at dr-nazirgilani@jkchr.com

Published in Daily Times, May 30^th 2018.