Water pact with Afghanistan crucial, jurist tells SC

Makhdoom Ali Khan submits reply in court as amicus curiae

Hasnaat Malik September 30, 2018

ISLAMABAD : One of the country’s leading jurists on international law strongly suggests working on a bilateral water agreement with Afghanistan, safeguarding the national interest.

“Afghanistan is now planning to build 12 dams, in cooperation with the World Bank and India, the flow of water from [River] Kabul is expected to be affected to Pakistan’s detriment. In this regard, the government must consider working on a bilateral water-sharing agreement with Afghanistan that safeguards its interest as a lower riparian state,” Makhdoom Ali Khan stated in a written reply submitted to the apex court.

The Supreme Court moved to appoint Makhdoom Ali Khan as an ‘amicus curiae’ to assist the court on water-related issues, especially the Indus Water Treaty between India and Pakistan.

Chief Justice Mian Saqib Nisar said that after getting input from senior lawyers, the apex court would share a comprehensive proposal with the government for dealing with water-related issues.

Makhdoom Ali Khan, possessing vast expertise of international law, submitted a report on various water issues confronting Pakistan and their possible solutions.

The senior lawyer urged the government to address the issue of building of dams on River Kabul. He also shared an overview of Australia’s water policy.

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Regarding issues arising out of the Indus Water Treaty, the lawyer told the SC that the technical design and storage capacity restrictions on building of hydropower plants by India provided in the treaty ensured a sufficient flow into western rivers, but from a political point of view, it enhanced India’s capacity to use water as a weapon.

“Even though India may not be violating the [treaty], its reservoir building activity pose a serious national security threat for Pakistan,” the report stated.

Terming India an upper riparian state, it stated that India’s geographical advantage placed Pakistan in a weaker position.

Furthermore, India was aggressively pursuing dam building on Western rivers that accounted for Pakistan’s water needs.

“Hydrologists have referred to this kind of dominance as ‘hydro-hegemony’ that mainly rests on four resource control tactics: getting consolidated control, resource capturing, containment and integration, which are to be exercised in an international context where there are weak international laws and global political trends,” the report stated.

India’s hydro hegemonic practices had numerous adverse implications for Pakistan, such as: water security, ground water pollution of trans-boundary aquifers, increased flood risk in eastern rivers during heavy monsoon, disproportionate climate change and higher cost of operating the water network while climate change also resulted in decreased snow cover, glacier melting and more rainfall.

The report suggested that Pakistan could also explore the option of taking up these issues as bilateral agenda items outside the Indus Water Treaty framework and bring India’s recent threats, statements and actions to the attention of the UN Secretary General (under Article 99 of the UN Charter) and the UNSC.

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Pakistan, it stated, also needed to take steps for the capacity-building of the office of the Permanent Indus Commission and ensure effective and timely representation before relevant forums over differences arising under the treaty.

Recommending a multi-pronged strategy, he stated that the strategy needed to be driven by water rationale and hydro-diplomacy to protect its water rights within broader parameters of the treaty.

To resolve differences among provinces on water issues, the report recommended that annual water audit should be introduced to ensure compliance with the Water Apportionment Accord of 1991 to detect water thefts by provinces.

“Urban and industrial water requirements must be addressed more comprehensively. Focus must shift from irrigation requirements only to a more efficient and judicious use of water,” it added.

Stressing the need to enhance IRSA’s capacity, the report stated that provinces unable to utilise their water share should be able to sell and trade their surplus to other provinces at mutually agreed prices. This will allow provinces to extract maximum value for the resource.

The report also called for the construction of small dams.

“In every province, Small Dams Organisation continues to function, with supporting technical staff as an arm of the irrigation department,” it stated.

Pointing out that 80 per cent of rainfall occurred during the monsoon season, the report stated that rainwater needed to be stored within two to three months to address national water and food security.

Potohar region, for example, lost most of its annual 3.5 million acre-foot of water because of the shortage of infrastructure, resulting in large-scale soil erosion. “This region alone has the potential (for building at least) 6,000 mini-dams.”

Pakistan, the report stated, had so far built 58 small dams.

“According to reliable estimates, it has the potential to build 750 more small dams to meet water requirements of (its) growing population,” stated the report.

“Even though small dams are not alternative to large dams, their economic viability makes them a suitable short-term strategy for dealing with water shortages. For example, 12 small dams in the Potohar region were completed in 1996 at a cost of $35.4 million, whereas Diamer-Basha dam is estimated to cost $14 billion,” it added.

Another special feature of small dams is the generation of cheap hydroelectric power with low operation and maintenance costs.


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