Pakistan has once again pricked India by publishing a map showing not only J& K and Ladakh, but even Junagarh and the area of Sir Creek as parts of the failed country that it is. This follows a similar act earlier by Nepal of publishing a map showing Indian territories as part of this small country. Besides this, during this period, we had a border spat with China resulting in casualties on both sides and in spite of protracted negotiations, status quo ante bellum has not yet been restored. Nepal is at present ruled by communists who have strong links to the Chinese Communist Party. For a long time,economically beleaguered and internationally shunned as the factory of terrorism, Pakistan has been hanging by the coattails of China. It is easy to see the link between all these events.
India has a big stick that this nation has refrained from using because of fear of retaliation by China on behalf of its protégé Pakistan. The bulk of water available to Pakistan flows from India and enjoys the protection of the Indus Water Treaty of 1960. The Treaty is highly inequitable and injurious to the water-deficit food bowl of India comprising Punjab, Haryana, Western U.P and Rajasthan as well as to the national capital of Delhi. Yet, we have stuck with it given the apprehension that China, the upper riparian state for two of the six rivers covered by the Treaty namely the Indus and the Satluj, may disturb flows to India in retaliation for India cutting off supplies to Pakistan. The supporters of this view forget that China has been using the water of rivers flowing to India according to its needs and technical feasibility,as there is no water treaty between India and China. It has dammed and diverted the flow of the Brahmaputra and may do so in future for the Satluj too. Twice, it has created the artificial Parechu Lake that then burst its banks causing havoc in Spiti and in Kinnaur valley to confirm that in case of war this tactic can be used to cut off our access to borders in this area.
The Indus Water Treaty was signed in 1960 between India and Pakistan with the intervention of the World Bank. It was the magnanimity of Nehru that resulted in our much larger country getting only 16 percent of the water of the six rivers shared under the Treaty and Pakistan getting the remaining 84 percent. Kabul River, which formed part of the Indus basin, was not counted and Pakistan retained the right to its water too. As if that was not bad enough, India agreed to give 62 million Pound Sterling or 125 metric tons of gold to Pakistan under the specious argument that Pakistan did not have the infrastructure to use the water allocated to it. Pakistan did not use the money for that purpose and a large portion of water given to Pakistan continues to flow unutilized to the sea. This goes against the express objective of the Treaty, which is to attain “the most complete and satisfactory utilization of the waters of the Indus system”
The preamble of the Treaty says that it is being executed “in a spirit of goodwill and friendship”. The conduct of Pakistan during the 60 years since the Treaty was signed has been nowhere near these noble expectations. We fought wars in 1965 and 1971 and then had to repel the intrusion in Kargil at huge cost. Pakistan kept sending armed terrorists to India and caused death and destruction in places as widely separated as Mumbai and Pulwama. The low-cost proxy war by Pakistan has bled the Indian economy, our soldiers and civilians. The Treaty says that it is “making provisions for the settlement, in a co-operative spirit, of all questions” which may arise on this issue. Pakistan has tried to frustrate our hydro-power projects for non-consumptive use on the Western rivers, though these are fully permitted by the Treaty. Every time, after protracted proceedings before the International Court of Arbitration, Pakistan lost face while blatantly exhibiting its disregard for the exhortation in the treaty to show “co-operative spirit”.These two factors, the wasting of scarce water by Pakistan and its total failure to act in a spirit of goodwill, friendship and co-operation, should by themselves be enough to establish that the Treaty has not worked as intended and that the purpose of the Treaty has been frustrated.
There is, however, a legal flaw in the Treaty that makes it non-existent in the eyes of law. It relates to Pakistan-occupied Kashmir (POK), a part of which is claimed by Pakistan to be Azad Kashmir and the rest is claimed to be part of Pakistan as Gilgit-Baltistan. There is an established principle of law that when there are more than two necessary parties to an agreement and one or more of them do not join such an agreement, then the agreement is not valid even among the parties who sign it and cannot be enforced against any one of them.
The Treaty was signed by Nehru on behalf of India and by Ayub Khan on behalf of Pakistan. POK is a necessary party to the Treaty as the three Western rivers, Indus, Chenab and Jhelum, given to Pakistan under the Treaty, flow through this territory. The question arises – who signed on behalf of POK? There are two options for Pakistan in this regard. Pakistan can accept that Nehru signed on behalf of POK too as India claims the entire territory of J&K as an integral part of India. Or Pakistan can claim that Ayub Khan signed on behalf of Azad Kashmir and the remaining part of POK has been merged in Pakistan. The former stand amounts to accepting India’s claim while the latter delegalizes the fiction of “Azad Kashmir” and Pakistan can accept neither of these. Thus, it can be concluded that POK, a necessary party to the Treaty,is not a part of it and hence it is not binding on India and on Pakistanalso. It is true that the Treaty expressly says that its provisions shall have no bearing on the territorial claims of the parties. Yet, the question is about the legal validity of the Treaty.It is clear that there can be no valid Treaty without the participation of POK. It is also clear that there is no consensus on who signed it on behalf of POK and even on whether anyone at all signed it on behalf of that territory. This is sufficient to render the Treaty null and void.
Questions have been raised about there being no provisions in the Treaty about its abrogation and suspension and also about the feasibility of India using the excess water if the Treaty is renounced. We shall deal with these questions in the second part of this article next week. (To be concluded)