India and Pakistan signed a major treaty (Indus Waters Treaty) towards sharing the Indus river waters in 1960, and the four provinces of Pakistan signed an agreement (Inter-Provincial Water Apportionment Accord) in 1991 to share the waters within themselves. Both the agreements inter-state and intra-state have been extremely painful and were reached after arduous negotiations. Undoubtedly, the negotiating parties deeply felt, that there is a need to work together, which enabled them to reach an understanding. Both agreements are clear and unambiguous. In short, there was a clear spirit that guided them to reach an agreement in writing. Why then are the parties fighting today? That too, ironically over what constitutes the letter and spirit?

Consider the following issues. The Indus Waters Treaty was negotiated between India and Pakistan in the 1950s; the book authored by ND Gulati sketches the painful to and fro of points, counter points, positions and counter positions. Finally the treaty was signed in 1960. The World Bank did a great service by brokering this treaty; had it not been for its pressure, it is doubtful, India and Pakistan would have agreed to such a treaty. However, this should not take the credit from India and Pakistan; both countries ensured that the treaty was adhered to, even during the wars and proxy wars.

Today, one of the major accusations from Pakistan has been centered on India not adhering to the letter of Treaty, in terms of water flow, prior intimation of projects, and construction beyond what is provided by the IWT. India’s counter accusation is centered on Pakistan not following the spirit of the IWT, and acting as a spoilsport in delaying India’s projects, either by not responding or taking them to the neutral expert.

According to Pakistan, the provision for a neutral expert is provided by the IWT, hence there is nothing wrong in making use of that provision in case of a difference. India on the other hand considers, that the provision should be the last option and not recourse for each and every project that India proposes. The reference does cost time, money and efforts, in terms of delaying the project, thereby increasing the cost of not only construction, but also related expenditure, in not making use of the hydro potential.

Within Pakistan, Sindh prefers to strictly adhere to the 1991 Agreement, which is a consensus document amongst the four provinces. Sindh fears that the construction of a major dam (like Kalabagh) or canals (like Greater Thal and Chashma-Jhelum) will benefit only the Punjab, at its own cost. Punjab, on the other hand wants to see the 1991 Agreement as politically beneficial, that would provide space for better management of water resources. Punjab’s conviction is centered on the fact any such construction will greatly help its own agricultural and industrial sectors, without affecting smaller provinces of Balochistan, NWFP and Sindh.

What should be the primary focus of water governance between the parties? Should it be the letter or spirit?

It is unfortunate, that between India and Pakistan, and between the four provinces of Pakistan, the issue has become letter vs spirit instead of letter and spirit. This is not a unique situation between the above mentioned actors. Unfortunately, this is also the case between numerous inter-state and intra-state actors in South Asia. As of today, within India there are similar conflicts between Punjab and Haryana, Karnataka Tamil Nadu and Kerala over the sharing of water resources.

An earlier article in this series focused on the failure of Institutions, which deal with the water management and governance. See “Indus Waters Governance-I: Crisis of Institutions”. Not only the institutions that are dealing with water management are weak, even other institutions – especially legal and political, are equally fragile. In certain cases, States create a separate tribunal, to deal with water disputes between the provinces and keep away from the purview of regular legal institutions. Given the pace and inordinate delays associated with the courts in South Asia, one could easily conclude, even if they are referred to the regular institutions, they are unlikely to be fast and effective.

Unfortunately, the tribunals at national level, and arbitration at international level, not only take time, but also cannot effectively ensure the implementation of its verdict, in accordance with the letter, and more importantly, the spirit behind the verdict, and the original spirit behind the earlier water agreement itself.

Clearly, legal recourse will not enforce the letter and spirit, either at the national or the international levels. Worse, both parties (as in the case of the verdict given by Baglihar neutral expert) will interpret the verdict as a vindication of their point of view. The issue is political, hence would be resolved politically.

There is a need to invoke the ‘spirit’ argument; this needs to be done at multiple levels – governmental and societal. Pursuing an independent ‘letter’ approach will get a ‘judgment’ but not necessarily ‘justice’.  It should be letter and spirit, with an extra emphasis on the latter. The State alone will be unable to address this basic issue, which is essential in building trust for the other.

(This is a part of a series on Indus Waters Governance; forthcoming articles will focus on issues relating to Chashma-Jhelum canal, Greater Thal controversy and Kalabagh dam)