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 30th 2018.
No comments:
Post a Comment