While the territorial disputes between China and India remain unresolved, clashes over the water resources that traverse through these disputed territories is on the cards
As the western economies scramble, China is rising fast with an ambition to become the world power. It is an acknowledged fact that with China’s rise, scholars are beginning to think about international law from the Eastphalian paradigms demonstrating the impact and importance of Chinese rise.
As far as China-India relations are concerned, at the moment, they focus on strengthening their economic ties.
Unfortunately, similar creative leadership has not yet permeated in the negative side of their simmering disputes such as the McMahon Line (Tibet/Arunachal Pradesh) and Aksai Chin (Part of Kashmir under China’s control since 1962). Apparently India, over the years and in order to maintain some influence, has provided asylum to Dalai Lama and his Tibetan government-in-exile. China in return has rejected Indian sovereignty in Arunachal Pradesh as well as in Indian Administered Kashmir. This is apparent since China has issued the stapled visa in the past to residents of Arunachal Pradesh, and Indian Administered Kashmir. Over the years, there had been several minor boundary incursions between China and India, and a major war was as well fought in 1962 when India lost the territory of Aksai Chin to China.
While the territorial disputes between China and India remain unresolved, a new chapter of water clashes over the water resources that traverses through these disputed territories is on the cards. The water clashes are eminent since experts predict India to be a water deficit country by 2020. The water tables are fast declining in numerous countries, including, north China and India. Hence worldwide securing access to water for rising population and economic growth becomes a national priority. At the moment, China is quenching its northern thirst by investment in South–North Water Transfer to channel water from the Yangtze River in southern China (Tibet) to the industrialised regions. India, on the other hand, heavily relies on the trans-boundary Rivers such as Brahmaputra, Ganges and Indus. These three significant rivers of Asia along with Salween, Yangzi, Yellow and Mekong, originate from Tibet and remain under an effective Chinese control.
On some of these trans-boundary rivers that China shares with India, it has built dams without informing downstream riparian and this is rather concerning since all the Indian rivers come from China. An assumption is that China can as well build dams on other rivers that is shares with India without notifying her. For example, China built Senge-Ali dam in Tibet very near to the contestable territory of Aksai-Chin, which is neighboring to Demchok Area of Ladakh and is built on the Indus Water Basin (IWB) catchment area. This dam was built without informing the users of Indus River – India and Pakistan. The construction of Senge-Ali dam was identified after a book on Indus was published in 2008 by Alice Albinia, called ‘Empires of the Indus the Story of a River’. Likewise, China has also constructed Zangmu dam, on the upper reaches of the Yarlung Tsangpo River (called Brahmaputra in India), which is now in operation. This dam is on the middle reaches of the Brahmaputra River and traverses through the disputed region of Arunachal Pradesh. Building of dams on the trans-boundary Rivers that China shares with India is rather concerning as China has no bilateral water treaty with India for equitable water use/sharing or its management. It must be noted though that China does have watercourse treaties with some of its neighbours.
In relation to Yarlung Tsangpo (Brahmaputra) River, China does have significant control over it. Whereas in relation to Indus River, China controls about 3 per cent of IWB catchment area and some experts such as Professor Shakil Ahmad Romshoo (Head of the Department of Earth Sciences, Kashmir University), believe that Senge-Ali dam may not severely affect the Indus water levels. However, Senge H Sering (President of Institute of Gilgit Baltistan Studies, Washington DC and was a Visiting Fellow at the Institute for Defence Studies and Analyses, New Delhi, 2010) has asserted based on expert claims that Senge-Ali dam will threaten the human ecology by affecting inhabitants and their livelihood along the Indus. It can also increase salinity, land erosion and sea-flooding that can severely damage the Indus delta.
From the international law perspective, the construction of these dams by China is a means of asserting it sovereign property rights over Indus. This clearly resonates China’s position on watercourses, which is that the upstream state has sovereignty rights in relation to the water that originates within its territory. Since the construction of the dam by China in the Indus catchment area may damage Indus Delta, it also triggers uncertainties over effectiveness of the Indus Water Treaty (IWT) signed between India and Pakistan in 1960.
After the September 2014 flood in the Kashmir region, it became apparent that inequitable provisions of IWT such as the limited data with respect to the flow and utilization of the waters, may have partly contributed to the flooding. The IWT contains only 12 articles and has no specific provision on exchanges of data on Jhelum and Indus River. Since 1960 no protocols were added to IWT that could reflect modern water resource management based on the international standards of water sharing. The IWT simply is a water division treaty that followed the partition of the British India. It treats IWB as a water tap between India and Pakistan, allocating Western rivers (Indus, Jhelum and Chenab) to the sole use and benefit of Pakistan. An entire flow of the Eastern Rivers (Ravi, Beas and Sutlej) is made available for the restricted use and benefit of India, and for development by India. State of Jammu & Kashmir does not have any residuary rights under the treaty to use their own water for their benefit. Further the IWT Permanent Indus Commission (PIC) created under the treaty to resolve the disputes remains ineffective in resolving disputes. Pakistan so far has taken two disputes related to IWT to Permanent Court of Arbitration (PCA) on the Indian projects of Kishenganga and Baghlihar dams. Both these dams are located in Indian side of Kashmir.
The international water law contrary to the Chinese approach, calls for implementation of the notion of limited sovereignty, which China rejects. China has also voted against the 1997 UN Convention on the Non-Navigational Uses of International Watercourses because according to China, it does not reasonably tackle concerns of upstream states and guarantee exercise of their sovereignty rights in relation to the water that originates within its territory. For this reason, China remains reluctant to allow the downstream riparian states to access its upstream water projects on international rivers and does not allow comprehensive data sharing on the trans-boundary Rivers with India.
Having reviewed some of the possible precursors of water clashes, it is believed that for sustainable Sino-Indian ties, the simmering issues need to be tackled through novel dialogue. Both wisdom and good neighboring dictate that maintaining a status quo on the territorial/water disputes may prove counter-productive. In order to avoid clashes new visionary leadership of China and India needs to have focused policies on these pressing water claims. Further, future negotiations on the IWT or the IWB, should include all stakeholders, China, India, Pakistan and State of Jammu and Kashmir. China is a contender not only because it has property rights over Indus water but also because China is the ultimate contender for becoming the world power and its participation may boost a sustainable resolution on the Indus water management.
Pending the relevant stakeholders action, a constructive multidisciplinary dialogue on the IWB/IWT should begin that can assist us in exploring whether the IWT, engenders a set of geographical imaginaries, which have proven quite problematic with the passage of time and may have partly contributed to the 2014 Kashmir floods. To make such dialogue a reality on 4 August 2015, I organized a symposium in collaboration with Law Department of Kashmir University on ‘The Indus Water Treaty (IWT) 1960 and its Effect on State of Jammu & Kashmir: A Multidisciplinary Post-Flooding Dialogue. This multidisciplinary symposium mapped the future development of the Indus Water Treaty in (1) the international context while considering its (2) juridical, (3) technocratic, (3) climatological, (4) geographical, (5) economic and (6) socio-political aspects. Some of the eminent local speakers at the symposium included Dr Sheikh Showkat Hussain, Head of the Department of Law, School of Legal Studies, Central University of Kashmir, Professor Shakil Ahmad Romshoo- Head of the Department of Earth Sciences, Kashmir University, Haji Abdul Majid Butt, KAS, Geoscientist and Ex GM JK Minerals/Ircon International, Prof. Gul Muhammad Wani, Director of Institute of Kashmir Studies, Kashmir University, Dr Javid Iqbal, Prominent Columnist/Writer and Mr. A. R Makroo, Ex Managing Director JKSFC/Ex Chief General Manager JKSPDC.
This profound inter-disciplinary discussion at the regional level began exploring a comprehensive inventory of variables that can become a basis of re-negotiation or updating this treaty within, which state of Jammu and Kashmir could exercise its property rights over its own water to its economic and agricultural advantage.
(Dr. Fozia Nazir Lone is Assistant Professor, City University of Hong Kong)