Stephen McCaffrey is “the single most respected authority on international water law”. As Distinguished Professor of Law at the University of the Pacific in Sacramento, California, McCaffrey is intimately aware of the potential for conflict due to water, but he remains eternally optimistic, seeing transboundary water issues as an opportunity for cooperation rather than for conflict.
Last night, McCaffrey was named the 2017 Stockholm Water Prize Laureate for his trailblazing work and his contribution to the field of international water law at a ceremony held alongside World Water Week, organised by the Stockholm International Water Institute (SIWI).
In an exclusive interview with thethirdpole.net the day before the ceremony, McCaffrey spoke about the India and Pakistan transboundary water conflict, and how he sees it as a 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.
It is remarkable, says McCaffrey, that the Indus Waters Treaty (IWT) – signed by India and Pakistan almost 60 years ago – and the permanent commission it set up, has continued to function between periods of conflict. “Since 1960, there have been 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 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 transboundary disputes pertaining to the Ganga, Mekong and Nile rivers. McCaffrey is accredited with articulating the human right to water, recognised by the UN General Assembly in 2010.
As one who believes in dialogue as the only way out of conflict, McCaffrey favours commissions such as the one formed under the IWT. “We find that cooperation through these commissions produces more benefits than no cooperation. I am sure India and Pakistan believe the same thing,” he says. “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 divided between them.”
Though he says he is no political scientist, McCaffrey believes that such commissions help countries to communicate on a constant basis, which he sees as a starting point on the path to mutual cooperation. “There may have been some problems, but the IWT commission is still in force and it is still observed; in case of a problem they follow the procedures in the treaty.”
Recognising the water rivalry between the two neighbours, McCaffrey refers to his earlier remarks at 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 exacerbate the issue.”
McCaffrey feels that the water boundaries of the two countries are mapped out in such a way that it leaves the two countries ripe for conflict. “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 water relations between countries are largely dependent on their general politics. “If they have good relations, they can work anything out. If they don’t, the tiniest problem becomes huge. With the 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.”
To achieve a mutually-beneficial result, McCaffrey says it will take a lot of goodwill and trust on both sides. “This may be lacking to some extent in the case of India and Pakistan so it may be that the only option is third party dispute resolution, where you have to live with the third party’s decision,” he says. “But the good thing is that third parties do realise the importance of achieving a balanced solution because if you don’t, the likelihood of acceptance is diminished.” Without a balanced solution, McCaffrey continues, “the party that believes they got the better deal will trumpet that, and the other one will be disgruntled”.
As examples, McCaffrey cites the Baglihar and Kishanganga dams – two famous cases of dispute between India and Pakistan that have gone to third parties. 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 they would adversely impact the flow of the Chenab and Neelum rivers. Under the IWT, both countries had begun negotiations with the World Bank continuing to broker the water treaty between them.
While the World Bank 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 the cases of the Baglihar and Kishanganga dams, India sought advice from McCaffrey. “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 mutually beneficial result,” he said.
In an era when the world is faced with the most pressing challenge of climate change, McCaffrey believes that it is time both India and Pakistan 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 built under the IWT have the capacity to release that much water?”
McCaffrey expresses his tenacious hope for a peaceful and pragmatic solution to Pakistan and India’s water disputes. “What I would hope for is coordinated action and planning, so that the development of the water courses produces the most benefits for both – that’s the ideal. I would hope that the leaders of both countries could support this ideal.”