Stephen McCaffrey is considered “the single-most respected authority on international water law”, and is now the winner of the Stockholm Water Prize 2017. As Distinguished Professor of Law at the University of the Pacific, McGeorge School of Law, in Sacramento, California, McCaffrey is intimately aware of the potential of conflict due to water, but he remains the eternal optimist, seeing trans-boundary water issues as an opportunity for cooperation rather than conflict.
In an exclusive interview with thethirdpole.net in Stockholm — where he received the prize during World Water Week 2017 — he spoke about the India-Pakistan trans-boundary water conflict. He said that, in fact, he sees this as a potential chance for the two countries to foster regional cooperation. “Both India and Pakistan have found that cooperation produces more benefits and stability than conflict does,” he said.
India and Pakistan signed the Indus Waters Treaty (IWT) in 1960. In McCaffrey’s opinion, it is remarkable that the IWT system and the permanent Indus Commission that it set up have continued to function between periods of conflict.
“Since 1960 there have been some 12 instances of armed conflict between India and Pakistan. Yet members of the Commission continue to meet. Why? Because water is vital. It’s the only avenue there is for the two countries to relate to each other with respect to these shared water resources,” said the academic who has also worked as legal counsel to governments in trans-boundary disputes pertaining to the Ganga, Mekong and Nile rivers.
As one who believes in dialogue as the only way out of a conflict, McCaffrey is in favour of commissions like the one formed under the IWT. “We find that cooperation through these commissions produces more benefits than no cooperation… Unfortunately, India and Pakistan are not so close, but if they keep meeting, at least there is some stability in the knowledge that the two countries know where they are with respect to the six streams of water that are divided between the two countries.
“There may have been some problems, but the IWT Commission is still in force and is still observed; in case of a problem they follow the procedures in the Treaty.” McCaffrey quotes what he said in his remarks at the World Water Week that the root of the word “rival” comes from the Latin words for river and someone who shares a river with someone else. “This rivalry is not unique to India and Pakistan. But India and Pakistan have other issues that just exacerbate the issue.”
“It is not because of the water per se, but because of the underlying relationship between the two countries that has historical explanations,” he says, adding that the water relations between countries are dependent largely upon their general political relations.
“If they have good relations, they can work anything out. If they don’t, the tiniest problem becomes huge. Development of water resources being what it is, things tend to become cast in concrete, literally. You build dams, and it’s not easy to reverse a dam.”
For achieving a mutually beneficial result, McCaffrey is convinced that it would take goodwill and trust on both sides. “That is something that may be lacking to some extent in the case of India and Pakistan. It may be, then, that the only option is third-party dispute resolution, where you have to live with the third-party’s decision.”
He cites as examples the two famous cases of dispute between India and Pakistan that have gone to third parties — the Baglihar and Kishanganga dams. The case of the Kishanganga dam has been in the news more recently, as India is constructing two hydropower projects on the Chenab river. Pakistan had objected to the construction of the Ratle and Kishanganga hydropower schemes, saying that building them would adversely impact flow of the Chenab and Neelum rivers.
Both the countries had begun negotiations under the World Bank (WB), which has continued to broker the water treaty between India and Pakistan, two nuclear-armed neighbours with a track record of an easily combustible relationship. While the WB paused its latest arbitration on the Kishanganga dam in late 2016, it recently allowed India to build the two dams, albeit with certain restrictions in light of the IWT.
In both the cases of Baglihar and Kishanganga, India contacted McCaffrey to advise them. “I end up advising one country or the other; that’s just how the system works. It’s unfortunate that these dispute resolution procedures are always, in any treaty, set up this way that there is an adversarial meeting instead of one that takes advantage of knowledge and different techniques of dispute resolution to achieve a result that is mutually beneficial,” he said.
McCaffrey feels strongly that at a time when the world is faced with the most pressing challenge of climate change, both India and Pakistan should show flexibility. “The unpredictability of the water supply is worrisome. The Indus originates in the Himalayas. The glaciers are going to melt which means too much water; you will get rain instead of snow. Does Pakistan have the storage capacity to handle that much water? Do India’s dams that are built under the IWT have the capacity to release that much water?” He mentions the very real threat of dams getting overtopped, in the event of historic, unprecedented flows of water.”What I would hope for… is coordinated action and planning so that the development of the water courses produces the most benefits for both.”