RIPARIAN RIGHTS: A CASE STUDY OF INDIA AND PAKISTAN By Muhammad Nawaz Roll No. PKS-08-03 Supervised By Prof. Dr. Muhammad Farooq A thesis submitted in fulfilment of the requirement for the Degree of Doctor of Philosophy in Pakistan Studies Department of Pakistan Studies, Bahauddin Zakariya University, Multan, Pakistan Dedicated to My Parents ii Abstract Fresh water is vital to the economies and societies of countries, especially to those which lie in the arid climatic regions. The issue of water scarcity in certain regions of the world has led to an expectation of international conflict based upon the increasing competition for fresh water. One example is the confrontation between India and Pakistan over shared waters of the Indus River System. This study aims to enhance our understanding regarding the Indus Water dispute. Immediately, after the partition of Indian sub-continent into two independent and sovereign states of India and Pakistan in 1947, water became a focal point between the two nations. Being an upper riparian and having the control of headworks, India stopped water into all canals flowing into Pakistan. This action made Pakistan more conscious about its water rights because the Indus River System is source of life for Pakistan. In this context, this study traces the origin of water dispute between Pakistan and India from the partition of the Punjab. It further explores how water dispute was settled under the auspices of the World Bank and Indus Water Treaty was signed in 1960. It also provides a detailed picture of consequent developments of water infrastructure in the region and emerging challenges to Indus Water Treaty. The study also discusses various theories and principles which played an important role in the development of international law on the non-navigational uses of the international rivers and provides its present status. It also highlights the role of various organisations in the codification of international water law for non-navigational purposes and explores relevance between international water law and Indus Water Treaty. iii Acknowledgements My foremost praise goes to Allah Almighty, my Lord and Creator Who empowered and enabled me to complete this research. All my respect goes to the Prophet of mercy, Hazrat Mohammad (Peace be upon Him), who emphasised the significance of knowledge and research. I am greatly obliged to my supervisor Professor Dr. Muhammad Farooq for his support, guidance and feedbacks throughout my PhD research work. Undoubtedly, this work would not have been completed without his cooperation. I have been exceptionally fortunate to work under his supervision. I am equally grateful to the teachers and staff of the Department of Pakistan Studies, Bahauddin Zakariya University Multan for their support. Particularly, Dr. Muhammad Shafiq Bhatti and Dr. M. Javed Akhtar Salyana from whom I benefitted a lot during my course work. I am thankful to Syed Jamat Ali Shah (Former Indus Water Commissioner of Pakistan), Hafiz Zahoor-ul-Hassan Dahr (Chairman Indus Water Treaty Council), Dr. Shaheen Akhtar (NDU, Islamabad) and Dr. Rashid Ahmad Khan for their valuable cooperation and support. I would like to thank the countless people who in some way or the other contributed to my work especially, from India. Their contribution, no matter how small, carries weight. My deepest gratitude goes to my parents and my family members; I could not have completed my work without their love and encouragement. Finally, I would like to thank my wife and kids who shared all the sufferings that I bear while completing this thesis. iv TABLE OF CONTENTS Abstract iii Acknowledgements iv Table of Contents v List of Figures and Tables ix List of Abbreviations x Chapter: 1 Introduction 01 1.1 Prologue 01 1.2 Relevance of the Study 10 1.3 Research Methodology 11 1.4 Literature Review 12 1.5 Structure of the Thesis 21 Chapter: 2 International Water law 24 2.1 Introduction 24 2.2 International Water Law: Theories and Doctrines 25 2.2.1 Absolute Territorial Sovereignty 25 2.2.2 Absolute Territorial Integrity 26 2.2.3 Limited Territorial Sovereignty and Integrity 27 2.2.4 Community of Interests 29 2.3 Principles of International Water Law 30 2.3.1 The Principle of Reasonable and Equitable Utilisation 30 2.3.2 Obligation of Riparian States Not to Cause Significant Harm 31 2.3.3 Principles of Prior Notification, Negotiation and Consultation 31 2.3.4 The Principles of Information Exchange and Cooperation in International River Basins 32 2.3.5 Principle of Peaceful Settlement of Disputes 33 2.4 Development and Codification of the Law on Non- Navigational Uses of the Waters of International Watercourses 33 2.4.1 The Institute of International Law (IIL) 35 v 2.4.2 International Law Association (ILA) 36 2.4.3 The International Law Commission (ILC) 42 2.5 Conclusion 46 Chapter: 3 Water Resources of the Indus Rivers Basin 51 3.1 Introduction 51 3.2 Physiography of the Indus River Basin 55 3.3 Hydro-Sources of Indus River Basin 58 3.3.1 The Indus River 63 3.3.2 The Jhelum River 65 3.3.3 The River Chenab 66 3.3.4 The River Ravi 67 3.3.5 The River Beas 68 3.3.6 The River Sutlej 69 3.3.7 The River Kabul 70 3.3.8 The Kurram and Gomal Rivers 71 3.4 Characteristics of Rivers Flows 71 3.5 Politics of the Water-Resources Development in Pre-Partition India 74 3.5.1 Introduction 74 3.5.2 A Historical Overview of Water Resources Development in the Indus Basin 77 3.5.2.1 Irrigation Development during the Muslim period 77 3.5.2.2 Irrigation Development in British India 79 3.5.3 Water Conflicts and Efforts of Resolution 88 3.5.3.1 Sutlej Valley Tripartite Agreement (1920) 92 3.5.3.2 Indus Discharge Committee (1921) 92 3.5.3.3 SVP Inquiry Committee (1932) 93 3.5.3.4 The Anderson Committee (1935) 93 3.5.3.5 Rau Commission (Indus Commission) 94 3.5.3.6 Draft Sindh-Punjab Agreement (1945) 96 3.5.4 The Issues related to the Water Conflicts 97 3.5.5 Conclusion 98 vi Chapter: 4 Partition of Punjab and Its Impact on Water Management 102 4.1 Introduction 102 4.2 The Punjab Partition 106 4.2.1 The Punjab Award (Radcliffe Award) 113 4.2.2 Punjab Partition Committee 116 4.2.3 The Tribunal Awards 117 4.3 Joint Statement of May 4, 1948 (Delhi Agreement) 122 4.4 Intervention of World Bank for Water Dispute Management 126 4.4.1 Road to the Dispute Settlement 128 4.4.2 Indus Basin Working Party 129 4.5 Conclusion 137 Chapter: 5 Indus Waters Treaty and Its Implementation 142 5.1 Introduction 142 5.2 Major Principles of the Treaty 143 5.2.1 Principle of Water Sharing 144 5.2.1.1 Provisions regarding Eastern Rivers 144 5.2.1.2 Provisions regarding Western Rivers 144 5.2.1.3 Provisions regarding Eastern Rivers and Western Rivers 145 5.2.2 Principles of Cooperation between the Parties 146 5.2.3 Mechanism of Dispute Settlement and Permanent Indus Commission 147 5.2.4 Principles of Financial Provision and Indus Basin Development Fund 149 5.3 Implications of the Treaty 151 5.4 Implementation of the IWT and Emerging Conflicts 159 5.4.1. Wullar Barrage Dispute 161 5.4.2 Baglihar Hydropower Project 163 5.4.3 Controversy over the Kishanganga Hydropower Project 167 5.5 Causes of Conflicts 172 5.6 Water Conflict and Indo-Pak Relations 174 vii 5.7 Challenges to the Indus Water Treaty 176 5.8 Relevance of Indus Water Treaty to International Water Law 180 5.9 Conclusion 190 Chapter: 6 Conclusion and Recommendations 195 Bibliography 208 Appendix A Text of the Joint Statement of April 4, 1948 220 Appendix B Letter from the World Bank President to the Prime Minister of Pakistan; 6 September 1951. 222 Appendix C Letter from the World Bank President to the Prime Minister of Pakistan; 8 November 1951. 224 Appendix D Letter from the World Bank President to the Prime Minister of Pakistan; March 13, 1952. 227 Appendix E Proposal by the International Bank Representative for a Plan for the Development and use of the Indus Basin Waters, 5 February 1954 228 Appendix F Aide Memoire, 21 May 1956 239 Appendix G Text of the Indus Waters Treaty 1960 243 Appendix H Chronology of Water Conflicts in the Indus Basin 263 viii LIST OF FIGURES AND TABLES List of Figures Fig. 3.1 Location of the Indus River Basin Fig. 3.2 Physiographic Regions of the Indus River Basin Fig. 3.3 Rainfall Regime Fig. 3.4 Indus River System Fig. 3.5 A Hydrograph of the Punjab Rivers Fig. 3.6 Canals of the Indus Basin up to 1960 Fig. 4.1 The Punjab after Partition (August 15, 1947) Fig. 5.1 Indus Basin Irrigation System with IBDF Works Fig. 5.2 Nature of Water Disputes in Post-Treaty Period Fig 5.3 Process of Arbitration Provided in the Indus Waters Treaty (1960) List of Tables Table 2.1 The states which signed approved, accepted, acceded to or ratified the UN Convention until 17th of August 2015. Table 3.1 Catchment Area of the IRB (in Sq. Miles) Table: 3.2 Absolute Maximum and Minimum Temperature for the Hottest Month, June/July, in Degree Cº. Table 3.3 Annual Average Rainfall in various parts of Pakistan (Millimetres) Table 3.4 Important Glaciers of the IRB Table 3.5 Average Annual Runoff of the Indus River System (1922-60) Table 3.6 Tributaries of the River Indus Table 3.7 Tributaries of the River Jhelum Table 3.8 Major Tributaries of the River Chenab Table 4.1 Muslim Majority Areas according to the Census of 1941 Table 5.1 Details of the Indians Projects on Western Rivers Table 5.2 Relevance of IWT with internationally accepted Principles of Water Management.