India & CPEC

A PERUSAL of the record of the negotiations on the Indus Waters Treaty (IWT) in Ijaz Hussain’s book suffices to expose the utter falsity of India’s avowed reason for its refusal to adhere to China’s Belt and Road Initiative, namely because one link, China-Pakistan Economic Corridor (CPEC), passes through Azad Kashmir. As Liu Jinsong, Minister and DCM of the Chinese Embassy, recalled in a speech on April 21, 2017, “The China-Pakistan Karakoram–Kunlun Road was built in the 1960s and put into use in the 1980s. Therefore, it is no fresh news for India that China and Pakistan’s transportation connections and related cooperation surpass the Kashmir region” ( News from China , Embassy of the People’s Republic of China, May 2017, page 53).

Ijaz Hussain records how the Kashmir dispute was bypassed in the negotiations leading to the signing of the IWT. “The parties tried to bypass the dispute over Jammu and Kashmir through this article in the settlement of the water dispute. With this perspective, the provision became handy and was inserted in the draft Treaty. William B. Iliff, the chief negotiator on behalf of the World Bank, acknowledged this fact in a letter that he addressed to N.D. Gulhati [the leader of India’s delegation] in these words: ‘My recollection of the understanding reached in the course of our conversation with the Indian authorities in Delhi is that … India was concerned that the actual construction of a reservoir at Mangla [in Azad Kashmir] should not carry an implication that India’s sovereign rights in Jammu and Kashmir were in any way or to any degree eroded. I therefore wished to find a formula that would therefore protect her in this respect…. The general principle underlying the Bank approach was that neither party should, on the one hand, seek to gain, in or from the Water Treaty, any support for its own general position on the Kashmir issue, or, on the other hand, should seek to erode the general position of the other party.’”

He explains how this was done. “They decided not to mention any work that Pakistan was constructing in the disputed territory nor provide any indication that India had agreed to it. Despite this understanding, the issue of constructing dams and reservoirs in Azad Kashmir [by Pakistan] presented considerable drafting difficulties. [Jawaharlal] Nehru feared that if he gave formal consent to the construction, for example, of the Mangla Dam, Pakistan might construe it as a waiver, by India, of its claim of sovereignty over Azad Kashmir or what India termed as Pakistan-occupied Kashmir (PoK). In this vein, he referred to the protest that India had already lodged with the United Nations against the construction that Pakistan had already undertaken. Iliff tried to show a way out of the impasse by suggesting a clause in the proposed treaty along the following lines: ‘Nothing in this Treaty should be construed as prejudicing the rights or claims of either India or Pakistan in any territorial dispute.’ Nehru disagreed with the proposed text on the grounds that India did not consider Kashmir a territorial dispute. It was, in his view, an Indian territory which Pakistan had illegally occupied. He felt, however, that it was possible to devise a formula to take care of this problem. Subsequently, Pakistan and India successfully negotiated the following text during the London talks.” This was on December 9, 1959.

Article XI of the Treaty says: “(I) It is expressly understood that (a) this Treaty governs the rights and obligations of each Party in relation to the other with respect only to the use of the waters of the Rivers and matters incidental thereto; and (b) nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a 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.”

The parties were determined to settle and agreed to put a non-issue out of the way. India has other reasons for not joining China’s Belt and Road Initiative. The CPEC through Azad Kashmir is a false excuse for a wrong decision.

Gulhati confirmed Ijaz Hussain’s account in his memoir Indus Water Treaty . He wrote: “The broad basis of the discussions, initiated with the participation of the Bank, had set forth: ‘The water resources of the Indus basin should be cooperatively developed and used in such manner as most effectively to promote the economic development of the Indus basin viewed as a unit. The problem of development and use of these waters should be solved on a functional and not a political plane, … independently of political issues.’ The objection to planning of works in Pakistan-occupied Kashmir territory was thus not consistent with either undertakings and, although my colleagues and I had not made any commitment, on behalf of India, the Mangla dam had featured prominently in several informal discussions between the Bank group and us; government having been kept fully informed. The studies made by us of the potential of the Mangla dam had convinced us, since early 1957, that this would provide the most economical arrangement for rabi replacements.” Economics prevailed over politics.

Thus, “a realistic view was taken about the Mangla Dam, the construction of which was being undertaken by Pakistan in spite of Indian protests. I was authorised to furnish to the Bank our detailed comments on Pakistan’s London plan along the lines indicated by me in my note to the Cabinet Committee. I was also permitted to put forward a plan of our own which would adequately provide for replacement but taking care to see that no work included in this plan should lie in Pakistan-held Kashmir territory, in order that there should not be any implied recognition by us of Pakistan’s rights to undertake construction in this territory. Thus the danger from within was warded off, and my colleagues and I once again took up, in right earnest, our fight for the use in India of the waters of the Eastern Rivers earlier assigned to lands that were now in Pakistan and of all the surplus in those rivers. A few days later, on 11th October, 1958, Eugene Black and Iliff met the Prime Minister Nehru.” An understanding was reached.

In fact the matter was almost resolved at an earlier stage. “At an early stage of the discussions relating to the draft of the treaty, some guiding principles were accepted to enable discussions to proceed smoothly: In the light of the disagreement between India and Pakistan on the status of Jammu and Kashmir, it was agreed that effort be made to write the treaty in such manner as to bypass the problem of Jammu and Kashmir. There was no other way to reach agreement that would be accepted by the two parties. It was thus agreed, at Iliff’s request, that neither party should, on the one hand, seek to gain, in or from the water treaty, any support for its own general position on the Kashmir issue, or, on the other hand, seek to erode the general position of the other party.

“As Mangla dam was part of the Pakistan plan, in the light of Indian objections to its construction in Pakistan-held Kashmir territory, it was decided that there should be no mention in the treaty of any work to be constructed by Pakistan and no indication that India had agreed to, or had any responsibility in regard to, any such work. On 9th August, 1959, when discussions were in progress in London, India lodged her third protest to the Security Council about the construction of the Mangla dam. Iliff told me that Black was much perturbed by this action, but he was assured by the Government of India that this renewal of protest did not, in any way, alter the understanding reached between Black and the Prime Minister in New Delhi.

“In conformity with the principle of good neighbourliness, it was agreed that, in making use of the waters allocated to it, each party would seek to avoid any action which might cause ‘material damage’ to the other party; the term ‘material damage’ was not defined as what might be material under one set of circumstances might not be in so different set of conditions.”

A.G. Noorani