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Gomal University Journal of Research, Volume 31 Issue 2 December 2015 KABUL RIVER TREATY: A NECESSITY FOR PEACE-N- SECURITY BETWEEN AFGHANISTAN AND PAKISTAN, AND PEACE IN SOUTH ASIA Shakeel Azam Ph.D Scholar, Department of International Relations, Peshawar University ABSTRACT This study attempts to unearth that recently erupted water-related rift over sharing and use of water from common sub-basin, River Kabul owing to upstream damming by Afghanistan is, for all legal intents and practical purposes, an exclusive issue between Afghanistan and Pakistan. Its linkage with Indo-Pakistan relations is thus not a practical idea. The paper is an effort to explain that this untoward situation can be converted into an opportunity to resolve it once and for all. The study reveals that such damming, if not equitably rationalized bilaterally will affect: i) economy of lower-riparian country; ii) relationship; and iii) prosperity of both the nations; and iv) regional peace. The study notes that the efforts so far made establish the seriousness of this issue. The article, therefore, identifies that a) international law regime; and b) Indus Water Treaty provides criteria, which may be transformed into a logical framework to be used as ‘blue print’ for inking a treaty between them. What could be the possible mode of resolution and how to achieve it are questions which call for in-depth scrutiny. Hence, this paper suggests how to bridge the gap between theory and practice by a practicable arrangement in such fashion that the controversy is prevented from becoming a problem to ensure bilateral amity and regional peace. Keywords: Kabul River Treaty, Peace-&-Security, Afghanistan & Pakistan INTRODUCTION Pakistan, India, Afghanistan and China share Indus River Basin (IRB). Natural resources depletion is a major challenge of this region owing to population explosion, urbanization, industrialization, environmental degradation and inefficient use of water. Its current population of 237 million people is estimated to increase to 319 million in 2025 and 383 million by 2050. Increase in water availability for climatic changes is a temporary phase. It will be subject to continuous decrease in the long run. Its longest part is in Pakistan and substantial upstream parts are in China, India and Afghanistan ((Laghari, Vanham & Rauch, 2012).

Transcript of KABUL RIVER TREATY: A NECESSITY FOR PEACE-N- SECURITY ...

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Gomal University Journal of Research, Volume 31 Issue 2 December 2015

KABUL RIVER TREATY: A NECESSITY FOR PEACE-N-SECURITY BETWEEN AFGHANISTAN AND PAKISTAN, AND

PEACE IN SOUTH ASIA

Shakeel Azam

Ph.D Scholar, Department of International Relations, Peshawar University

ABSTRACT

This study attempts to unearth that recently erupted water-related rift over

sharing and use of water from common sub-basin, River Kabul owing to upstream

damming by Afghanistan is, for all legal intents and practical purposes, an

exclusive issue between Afghanistan and Pakistan. Its linkage with Indo-Pakistan

relations is thus not a practical idea. The paper is an effort to explain that this

untoward situation can be converted into an opportunity to resolve it once and for

all. The study reveals that such damming, if not equitably rationalized bilaterally

will affect: i) economy of lower-riparian country; ii) relationship; and iii)

prosperity of both the nations; and iv) regional peace. The study notes that the

efforts so far made establish the seriousness of this issue. The article, therefore,

identifies that a) international law regime; and b) Indus Water Treaty provides

criteria, which may be transformed into a logical framework to be used as ‘blue

print’ for inking a treaty between them. What could be the possible mode of

resolution and how to achieve it are questions which call for in-depth scrutiny.

Hence, this paper suggests how to bridge the gap between theory and practice by

a practicable arrangement in such fashion that the controversy is prevented from

becoming a problem to ensure bilateral amity and regional peace.

Keywords: Kabul River Treaty, Peace-&-Security, Afghanistan & Pakistan

INTRODUCTION

Pakistan, India, Afghanistan and China share Indus River Basin (IRB). Natural

resources depletion is a major challenge of this region owing to population

explosion, urbanization, industrialization, environmental degradation and

inefficient use of water. Its current population of 237 million people is estimated

to increase to 319 million in 2025 and 383 million by 2050. Increase in water

availability for climatic changes is a temporary phase. It will be subject to

continuous decrease in the long run. Its longest part is in Pakistan and substantial

upstream parts are in China, India and Afghanistan ((Laghari, Vanham & Rauch,

2012).

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Kabul River, a tributary of IRS runs through Afghanistan and Pakistan. It is 700

kilometers long. It emerges in the Sanglakh Range of the Hindukush Mountains in

Afghanistan and after passing through Kabul and Jalalabad in Afghanistan,

empties into the Indus River near Attock in Pakistan. Its sub-tributaries are:

Logar, Panjsher, Kunhar, Alingar, Bara and Swat rivers. Kunhar River is its

largest tributary which, after a long journey, meets Kabul River near Jalalabad.

Several dams impound Kabul River: Naghlu and Surobi dams in Kabul, Darunta

dam in Nangarhar in Afghanistan and Warsak dam in Pakistan (Wikipedia,

2009).

Pakistan and Afghanistan currently share nine rivers with annual flows of about

18.3 million acre feet (MAF), of which Kabul River accounts for 16.5 MAF

(News, 2015). It is shared by upper-riparian Afghanistan and lower-riparian

Pakistan (Frontier Post, 2013). Afghanistan needs modern water infrastructure for

its agriculture. Dam building is an integral part of Afghanistan‟s 2008

Development Agenda (Kugleman, Alam & Bakhshi, 2011).

Afghanistan is building 12 dams within its own territorial limits at various sites

across river Kabul and that too with financial assistance of India. These dams will

have cumulative storage capacity of 4.7 MAF. The concern of Pakistan is that

such dams will enable Afghanistan to interrupt water supply to Indus river

(Kugelman et al, 2014)) by withholding water during sowing seasons and

releasing water during wet-seasons. This tussle, if not adequately and rationally

redressed, will affect agriculture and hydro-power generation of Pakistan thereby

turning amity between them into enmity, disturbing regional peace and perturbing

regional trade and commerce.

Main objective of this study is to diagnose the causes behind this tussle between

the two countries. Sub-objectives are:

To identify politico-legal measures to prevent this rift from becoming a

problem; and

To figure out a mechanism to resolve it.

The study may serve as an eye-opener for decision-making in relation to inking

bilateral arrangement between them on sharing and use of water from Kabul River

for peaceful co-existence.

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RESEARCH DESIGN

Survey as an approach is used to solve specific problems, test the validity of some

theory or supplement some missing information as to any issue (Gupta, 1993: 33-

34) and use of published data is permissible. Better alternatives can be developed

by thematic argumentation (Boyd et al, 1977:34). Hypothetico-deductive

approach may be made use of in the same study (Sekaran, 1999:28 & Walliman,

2006). Evaluation of strengths and weaknesses of evidence to justify an

alternative is a tool to find out better solution (Thompson, 2012).

This research counts upon qualitative data captured through „literature survey’ on

various aspects of this topic. The underlying factors on sharing and use of water

between Afghanistan and Pakistan from River Kabul and effects thereof have

been thematically analyzed through argumentation, keeping in view the

contextual reality.

LITERATURE REVIEW

Falkenmarks Water Stress Index divides the total available water of a country by

its population. If the average amount of water available for per inhabitant falls

short of a certain threshold value (1700 m3 per person per year), such a country is

taken as „Water Stressed Country‟. In case it falls short of 1000 m3 per person per

year, it is “Water Scarce Country”. In case it is less than 500 m3 per person per

year, it is considered as Water Poor Country (Boesen & Ravnborg, 2004).

Around 2,775 cubic meters water per capita per year currently available in

Afghanistan is well-above threshold of 1800 cubic meters per capita (Kugelman,

Alam & Bakhshi, 2011). 50% of country‟s urban population lives near and around

Kabul River Basin (KRB), an unutilized basin (Bakhshi, Kugleman & Alam,

2011). Pakistan‟s per person per year water availability in 1947 was 5000 m3. It

has gone down to 1000 m3 per person per year and will be 700 m3 in 2025

(Pakistan Strategic Country Environmental Assessment Report, 2006 & ADBP

Report, 2007). It is thus „water stressed‟ country (World Bank Report 2005).

IRB comprises the Jhelum, the Chenab, the Ravi, the Beas, the Sutlej and the

Indus. The Kabul and the Kurram rivers are its other two tributaries, which rise in

Afghanistan. India and Pakistan are major co-riparians from IRS. Some portion of

it also lies in China, Afghanistan and Nepal (Central Water Commission, 2010).

For causes of row, see introduction to this study. Table 1 below shows „area-wise

position’ of Indus River Basin.

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Table 1 Area-wise position of Indus River Basin

Basi

n

Nam

e

Total area

of basin

(sq.km)

Country name Area of

country in

basin (sq.km)

Area of

country in

basin (%)

Indu

s

1,138,800 Pakistan 597,700 52.48

India 381,600 33.52

China 76,200 6.69

Afghanistan 72,100 6.33

Chinese control claimed by

India

9,600 0.84

Indian control claimed by

Chinese

1,600 0.14

Nepal 0 0.00

For further details on effects of damming, see introductory part of this paper.

Details of 12 Afghan dams (News, 2015) river Kabul are reflected in table 2

below.

Table 2 Details of 12 Afghanistan Hydel Power Projects on River Kabul # Project River Capacity

in MW

# Project River Capacity in

MW

1. Totumdara Panjsher Sub-basin 200 MW 7. Tangi

Wadag

Logur Upper Kabul Sub-

basin on the Kabul River

56 MW

2. Barak -do- 100 MW 8. Gat -do- 86 MW

3. Panjsher -do- 100 MW 9. Sarobi Lower Kabul Sub-basin 210 MW

4. Baghdara -do- 210 MW 10. Laghman -do- 1251 MW

5. Haijana Logur Upper Kabul

Sub-basin on the

Kabul River

72 MW 11. Konar -do- 94.8 MW

6. Kajab -do- 15 MW 12. Kama -do- 11.5 MW

Damming by Afghanistan on river Kabul is chosen as a lens through which the

frame of this study is being viewed to figure out a model for „conflict prevention’

and „dispute resolution‟ on blue gold. Figure 1 contains schematic diagram of

conceptual framework.

Figure 1 Schematic Diagram of the Conceptual Framework

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Theory of the topic has been generated by taking note of relevant factors. It has

been used as the primary guideline for further literature survey and analysis. Let

us look up certain dimensions of this issue.

DISCUSSION

Pakistan’s factor in Afghanistan

Pakistan and Afghanistan relationship has witnessed highs and lows since 1947.

Afghanistan is now included in South Asia. India and Pakistan are nuclear arch-

enemies in this region. Pakistan sees Afghanistan‟s close ties with India as

security threat (Usman 2012:45-58). Kashmir problem between Indo-Pakistan has

a nexus with hydro-politics (Siddiqui, 2010:212). Chain of Indian hydel-power

projects on three Western Rivers (Chenab, Jhelum and Indus allocated to Pakistan

under Indus Water Treaty 1960) is a doctrine aimed at drying up economy of

Pakistan (Briscoe, 2010:4). Its eastern borders are still unsafe due to Indo-

Pakistan rivalry. India‟s „silent aggression‟ by financing Afghanistan to build

array of dams on River Kabul to the detriment of Pakistan‟s economy will have

corresponding effect on agrarian (Malik, 2010:6, Malik, 2010:8 & Bakhshi et al,

2011) economy of Pakistan. 22% of its GDP is agricultural and 42% of its labour

force is engaged in agriculture (CIA World Facebook, 2006). It would jeopardize

hydro-power generation from the existing units like Warsak dam. The same also

may prove fatal to new units, if Pakistan ever plans to construct small dams at

downstream level. This rift in their working relationship is likely to make western

boundary of Pakistan unsafe as well.

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Indian factor in Afghanistan

India has competing interests vis-à-vis Pakistan in Afghanistan since 1947

(Usman, 2012: 45-58). Indian foreign policy towards Afghanistan has three-fold

objectives, i) containment of Taliban to neutralize Pakistan‟s help to Jihad in

Kashmir (Zaman, 2003); ii) support of democratic process to install pro-India

government in Afghanistan to plug extremist and religious movements, which

provide an impetus to the minorities in India to rise for separatism (Baluch &

Niazi, 2008:18); and iii) achieving a leading position to counter Pakistan‟s

influence in Afghanistan and Central Asia (Baluch & Niazi, 2008:18). India has

not yet confirmed its financial support for all 12 dams on Kabul River in

Afghanistan (Bakhshi et al, 2011) except two dams (Daily Mail, 2010). India is

currently one of the Afghanistan‟s largest donors. It has invested $ 1.3 billion on

infrastructure projects in Afghanistan (Kugelman et al, 2011), which will equip

India with hydro-influence in Afghanistan (Bakhshi et al, 2011).

Afghanistan’s position on this issue

After a long trauma, Afghanistan is emerging as a democratic state in South Asian

politics. It lacks hydro-development. Its existing water reservoirs had been built

during 1920-1940. Despite availability of enough water, it is far behind in

harnessing it for its needs. Geographically, its mountainous region is flood and

drought-prone. National interests of Afghanistan genuinely demand the

development of a sound water infrastructure including (Bakhshi et al, 2011) dams

for its agriculture, energy and urbanization, and security and stability in South

Asia.

International Law Perspective on Water-related Conflict Resolution

In the absence of Pak-Afghan treaty on River Kabul, the matters between co-

riparians are to be regulated under international law regime comprising, i)

customary international law; ii) conventions, declaration, and rules; and iii)

classic works of international publicists. International courtesy demands of upper

riparians to let the flow of water to the lower-riparians unaffected both

qualitatively and quantitatively. This unwritten precept is a part of general

principles of international law (Shaw, 2003:55-60) as well.

The Madrid

Declaration 1911 (Yaqoob, 2004:119-25) had reaffirmed this trite tenet to

discourage basin alterations and harmful modifications of international rivers,

which in this age include: artificial works, hydro-power generation projects and

dams with capacity to store waters, reservoirs and diversions of rivers to create

„river-run canals‟. The teachings of highly qualified publicists of various nations

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constitute a subsidiary source of international law (Statute of ICJ: Art. 38). The

flow of Transboundary Rivers is not (Oppenheim, 1989:474-75) within the

arbitrary powers of any riparian state.

Other existing laws: 1) Helsinki Rules 1966; 2) Berlin Rules 2004; and 3) U N

Convention 1997 highlight these precepts: - i) equitable distribution of shared

watercourses; and ii) commitment to use such waters … without causing

substantial injury to a co-riparian state. This position of International law is a

curser to a very critical aspect of international relations, i.e., how much important

the hydro-politics on the world stage is and what ought to be the rules of the

game.

International Relations View Point on Water

Water conflicts are „New Issues in IR‟ (Jackson & Sorensen, 1998:251-55) and if

peace is to be built in any area where water-related conflicts exist, as Middle East,

it has to be by resolving conflict over water (Jackson & Sorensen, 1998:254;

Gleick, 1993: 79-112 & Lowi, 1993:113-38). Pak-Afghan row over water is a

matter of grave concern in South Asia. Of course, there is no ready-made recipe

for resolving or preventing conflicts as every conflict is unique. Lessons can,

however, be learnt from experience with conflict prevention, as is the case of

Indo-Pakistan. Conflict resolution is a new philosophy which should be defined in

more detail (Mekenkamp, Tongeren & Veen, 2002: 47).

Afghanistan, Pakistan and India will remain the major flashpoints in South Asia

due to regional disputes (Mekenkamp et al, 2002: 262-63 & Khan, 2005:262-63).

Geography of states in their relations inter se occupies significance in

international politics (Rourke, 2005: 234-35). Geo-strategic position of

Afghanistan is of importance to Pakistan. Afghans have not fully accepted

Durand Line as an international border between Afghanistan and Pakistan

(Hagerty, 2006: 116).

Treatment of the entire river basin as a single economic entity (Siddiqui, 2010:

58) is one of recognized modes to resolve water-related conflicts. The parties in

particular and other stake-holders of regional and global peace in general need to

attend to this rift aptly for Pak-Afghan progress and South Asian tranquility.

Regional and Local Factors

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A sound water infrastructure is a need of Afghanistan, where rehabilitation work

has begun, which includes construction of dams (Hagerty, 2006:126-27 & 194-

95). Largest area in Pakhtunkhwa province of Pakistan is around the Kabul and

Swat rivers (Bengali, 2003:27). Distributory channels of River Kabul irrigate

districts of Peshawar, Charsadda and Noshera. Experts had suggested Pak-Afghan

covenant during 2003 (Thomas, 2014). Afghan Government did not cooperate on

the idea floated by World Bank and USAID for a treaty between them during

2006 (Thomas, 2014). After US Congress Report 2011 that „Water Scarcity Could

Fuel Dangerous Tension‟, WB and USAID attempted to hold a Pak-Afghan

dialogue but Government of Afghanistan refused to discuss water rights (Thomas,

2014). Similar efforts made during 2013 also ended in smoke (Thomas, 2014).

India considers it cheaper to engage Pakistan in Afghanistan than in Kashmir

(Report of CSIS, 2009). Pakistan views Afghan damming as an Indian plan to

capture market and resources for encircling Pakistan by establishing civil and

military relations with Afghanistan (Usman, 2012: 45-58). In the post-Taliban

scenario, Afghanistan is important to both India and Pakistan for economic,

security and strategic reasons. India is investment on developing infrastructure

including dams to have a say in Afghanistan affairs (Kerr, 2011). Pakistan is

using its contiguity, transit-trade and financial aid to gain influence in

Afghanistan (Usman, 2012:45-58). Trust-deficit between Afghanistan and

Pakistan is likely to turn into a transboundary water dispute.

Treaty as a Viable Mode to Resolve Water-related Conflict

International treaties as the primary source of international law (Starke, 1984:40)

defining rights and obligations of parties are binding on them under the doctrine

of pacta sunt servanda (Rourke 2005:270). In the absence of treaties, the states

may resort to wars as a means to secure resources necessary to meet their

domestic needs (Beiltz, 1979: 141-42) and victim state may not be able to

vindicate its grievance against a delinquent country before any international

forum including ICJ as mere proof as to existence of „legal dispute‟ ((Shaw, 2003:

751) is not enough. Want of consent from either side takes the matter out of

optional jurisdiction of ICJ under Article 36 (2) of its Statute.

To take any such conflict to International Court of Arbitration (ICA) also depends

upon consent of contending states (Agarwal, 1995:416). Obduracy on the part of

either side normally becomes a stumbling block in referring it to ICA. Diplomacy

is definitely yet another mode for settlement of inter-state controversies. But

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obstinacy of either side to a conflict ends up in failure to resolve a controversy.

How to resolve such controversy and by whom, are questions which beg answer.

Peace through treaty is not impossible as it is easy to enforce a treaty at

international level than rights and obligations created under general principles of

international law. Permanent resolution of outstanding conflict on water is

necessary for peace (Gleick, 1993: 79-112, Jackson & Sorensen, 1998: 253-54 &

Lowi, 1993: 113-38) between states sharing waters from common basin.

CONCLUSION

Indo-Pakistan rivalry has no direct nexus with Pak-Afghan rift over River Kabul.

Contextual reality is that it is a row between them alone. Modern water

infrastructure is a genuine need of Afghanistan for its economic welfare. Chain of

dams within its own territory over Kabul River will be enabling Afghanistan as

upper-riparian to temper with flow of water to lower-riparian (Pakistan) thereby

affecting their relationship. It may occasion arms clash between them. “Struggle

by nations to secure resources of clean water would be potent fuel for war and the

water crisis in South Asia was troubling” (Malik, 2010:8). Diplomacy and

collaboration with World Bank may be used to set this controversy at rest once

and for all. The parties need to redefine their respective foreign policies towards

each other subject to their „national interests‟. Solution to this issue lies in a

bilateral settlement.

Descriptive-cum-prescriptive provisions of IWT and tenets of international law

regime provide certain parameters to prepare model to resolve this water-related

issue. The mutual arrangement may provide for:

1. Treatment of Kabul River as sub-basin by its joint investment,

construction, management and control;

2. Budgeting of water by a formula for domestic, commercial, consumptive,

and non-consumptive uses;

3. Permissibility of run-of-river hydel-projects subject to limit of number of

projects without creating huge live storages at upstream;

4. Installation of „Telemetry Systems‟ at up-n-down streams to ensuring

transparency on use and flow of water ;

5. Mechanism for resolving differences: Categorizing matters of pure

technical nature as differences and matters of complex nature as disputes;

6. Forums for resolution of controversy: i) Kabul River Water Commission

(KRWC) for resolving „difference‟; and ii) International Court of

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Arbitration (ICA) for resolving „disputes‟. KRWC is to consist of two

Water Commissioners, one each to be taken from either country;

7. Mode for exchange of water data (discharges, flows, stoppages and

releases) between them on fortnightly basis; and

8. Annual inspection by Commissioners or state representatives in respect of:

i) development of single sub-basin, ii) existing works, iii) ongoing and iv)

future works, if any, on the River for verification to ensure transparency

on sharing and use of waters.

By fitting these criteria appropriately into a mutual arrangement to be inked

between them, water-related controversy can be prevented from becoming a

problem.

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