The present power crisis entailing unreasonable curtailment in the supply of electricity in the valley is a liability incurred by us due to the collaboration of our two neighbours in dividing our water resources without any consideration to our own needs. On September 19, 1960, in the city of Karachi, Pandit Jawahar Lal Nehru, Field Marshal Ayub Khan, and W.A.B Iliff of the World Bank signed the Indus Water Treaty. It settled the water dispute between the two neighbouring countries but left the people of the disputed territory totally high and dry! Making any legal provision for the rightful use by the people living in a disputed territory whose natural resources were divided between the two claimants is definitely a big legal flaw in the Treaty. The Treaty under general provisions article XI, (1) b, states “nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as recognition or waiver (whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the Parties other than those rights or claims which are expressly recognised or waived in this Treaty”. Thus, the Treaty protects all rights of the parties involved in signing it but fails to consider the rights of the people who inhabit the territory through which these Rivers pass especially the Western Rivers. The Eastern Rivers, whose use was exclusively given to India, pass through well defined legal territory which formed the part of the Indian Union created by the partition of the sub-continent.

Unfortunately, the so called rulers of Kashmir on both sides of the divide did not even bother to question the absence of any mention about the needs of the local people in the Treaty. The need of water had been so vital and urgent to the two countries that they virtually accepted the division of Kashmir on the basis of the existing dividing line. In fact, the proposal of Chenab as the dividing line mooted by many foreign interlocutors has been to guarantee Pakistan’s control over the Western Rivers given to it as part of the Indus Water Treaty. No one has ever pondered what would happen if Kashmir somehow becomes an Independent Country. Where would the Treaty then stand?

The people on the other side of the Line of Control had brought this discrimination to the attention of the United Nations in last September. The Jammu and Kashmir Council for Human Rights (JKCHR), a non-governmental organization in special consultative status with the UN filed a written statement to the Human Rights Council of the UN on September 1, 2011. The statement was received by the UN Secretary General and circulated among the members of the General Assembly. The main basis for filing of the statement was the use of waters of the Rivers flowing through Jammu & Kashmir related to the construction of dams in the Pakistan Administered Kashmir. The excerpts from the statement are reproduced. “The State of Jammu and Kashmir which is distributed under three administrations on both sides of cease fire line (CFL supervised by UNMOGIP personnel) is known for the richness of its water resources. These water resources are in the nature of a ‘trust property’ embedded in the disputed habitat of Kashmir. India and Pakistan have trust responsibilities under UNCIP Resolutions in regard to the use of these water resources. Both India and Pakistan as member nations of the UN and as two parties to the question of self-determination of the people of Kashmir have corresponding human rights responsibilities towards the benefit of the people of Kashmir embedded in these waters, while taking any decision between them to share these waters for the benefit of their respective peoples……It is a violation of trust that India and Pakistan have been taking unilateral decisions in regard to water as a natural resource 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…… The Indus Water Treaty was brokered by the World Bank. By concluding the Indus Water Treaty with India, Pakistan in practice accepted the sovereignty of India over Kashmir's water resource….. India and Pakistan are locked in a continuous clash of claims over water in Jammu and Kashmir. Water resources are not unlimited and available forever. The actual stewardship of water resources in any part of Kashmir rests with the people of Kashmir. It is unfortunate that Srinagar, Muzaffarabad and Gilgit governments have failed to defend the manner and extent to which the people of Kashmir are entitled to have a role in the use of their water resources at Mangla, Baglihar and Diamir…..India and Pakistan have Charter Obligations and Trust Obligation during their respective controls in Jammu and Kashmir. In addition to this the two countries have to accept their human rights responsibilities towards the natural resources, in particular, water embedded in the habitat of Kashmir. They must exercise due diligence to become aware of and address potential or actual negative impacts on human rights caused by their activities. Besides complying with national laws and regulations, non-State service providers must take proactive steps to ensure that they do not violate international human rights standards. Water resources in the natural habitat of Kashmir need to be defended as an integral part of self-determination.”

The situation of the use of water has been worse on this side of the line of control. We have suffered the double jeopardy! On one hand we are prevented from setting up hydroelectric power projects with large storage facility to take care of the low discharge in winter and on the other hand we also have no access to International investments to set up sizeable cascade run of the river projects with reasonable storage for our own use. The only alternative is the setting up of these projects by the Central Government which gives a pittance of power for the use of the state subjects in spite of having bartered these Rivers to the other side without the consent of the local people. Our state has been perennially deficient in power and the people have to suffer in harsh winters due to lack of electricity. Power is the prime mover of all development and without sufficient power neither can there be any appreciable development of the local industry nor can people have decent living conditions! Had Kashmiris the exclusive control of these waters, they could not only be living decently in the harshest winters but would also be prosperous by selling the power to both the neighboring countries.

The fact that the Indus Water Treaty has unreasonably curtailed the use of our own Rivers for power generation has now been acknowledged even by the mainstream parties who have been demanding handing over of some of the Central Power Projects constructed and maintained by the National Hydroelectric Power Corporation of India to the State Government. Unfortunately, the so called rulers have even bartered our limited rights to NHPC. These are totally in variance with similar arrangements in other state having similar projects.

In these circumstances, the people on both the sides of the divide have every right to demand reasonable compensation from the two Parties to the Treaty through the broker, the World Bank. The compensation could be in the form of a direction to two countries to allow International financing of projects for the exclusive use of the state subjects. It could also be in the form of the two governments setting up jointly projects for Kashmiris on both sides to cater for local requirements. In the interim, the least the Government of India can do to alleviate the sufferings of the local people is to supply power from the projects owned by it to the State at the cost of generation only!