Indus Water Treaty and a recalcitrant Pakistan

In the first part of this article we spoke about the inherent inequity of the Indus Water Treaty, its shaky legal foundations and the perpetual perfidy of Pakistan belying all the expectations in the Treaty of the spirit of goodwill, friendship and cooperation and the optimal use of water. As India dragged its feet in calling out this intransigence, Pakistan’s anti-India rhetoric became louder. Kashmir is being called Pakistan’s jugular vein, carrying the rivers that form its lifeline. An editorial in Nawa-i-Waqt of April the 4th, 2011 thundered: “India has captured the jugular veins of Pakistan for the last 63 years in order to inflict destruction upon Pakistan but Pakistani leaders are not concerned about the seriousness of this issue. Pakistan should convey to India that a war is possible on the issue and this time war will be a nuclear one.”  Sartaj Aziz, Advisor to then Prime Minister, Nawaz Sharif, said on July 12, 2018that the revocation of the Treaty by India would be taken as an act of war.

Art. 60(1) of the 1969 UN Convention on the Law of Treaties, reads, “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” Further, Article 60(3)(b) says that a material breach of a treaty consists in “the violation of a provision essential to the accomplishment of the object or purpose of the treaty”. The UN International Law Commission adopted in 2011 the document titled “Draft Articles on the Effects of Armed conflicts on Treaties”. Even this draft document contains a provision in Article 17 that a treaty may be terminated, or suspended or a party may withdraw from the treaty for “material breach” of the provisions of the treaty. Since Pakistan has continuously breached its obligations under the treaty, India would be within its rights to suspend or even revoke the Treaty.

Many commentators point out that there is no provision in the Treaty for its suspension or revocation. Historically, armed conflict between contracting states has been considered a sufficient ground for suspension or abrogation of treaties between them. It has been argued that there should be a formal declaration of war before a treaty can be suspended or revoked. There are, however, precedents for suspension of a Treaty even when there was no formal declaration of war. In the early years of the Second World War, when the US was still neutral, Roosevelt was advised by the Attorney General that since “…the implicit assumption of peacetime international trade … no longer exists … the fundamental character of the change in conditions underlying the treaty … leaves the Government of the United States entirely free to declare the treaty inoperative or to suspend it for the duration of the emergency.”

Doubts have been raised on whether terrorism directed at India and emanating from Pakistan can be designated as “armed conflict” between these two countries for the purpose of suspending the Treaty. The consensus on the issue is that hostilities by such armed groups have a more detrimental effect on the target country than declared war because of the element of surprise and the targeting of civilian population and of places that are not usually attacked in war such as schools, hospitals and religious places. A research paper published in 1972 in the American Journal of International Law concluded:

“Hostilities may be covert or overt. Covert hostilities include instances where one State shelters or assists groups in its own territory that then attack targets in another State. Such conflicts can seriously threaten the victim, and the same policies should apply to claims made against this background as apply to other, more conventional conflict situations.”

Pakistan has used terrorism as a state policy against India, openly harbouring even those terrorists that India had to release at Kandahar to save the passengers of a hijacked plane. Former Pakistan president Pervez Musharraf admitted in November, 2019:

“… Kashmiris who came to Pakistan received heroes’ reception here. We used to train them and support them. We considered them as Mujahideen who will fight with the Indian Army … they were our heroes.”

Thus, the continuing proxy war against India by Pakistan through terrorists and the material breach of many explicit stipulations of the Treaty constitute sufficient grounds for suspension or termination of the Treaty.

The next doubt raised by naysayers is that India cannot handle all that water. The premise is wrong; the rivers will continue to flow with India getting the freedom to use water for its needs. More hydropower projects can be put up in Himachal, Ladakh and J&K unhindered by the legal shenaniganswith which Pakistan delayed Baglihar and Kishenganga projects. Even the Kashmir valley needs more water and the legislative assembly of J&K had passed a resolution in 2003 demanding abrogation of the Treaty and another in 2016 for its revision.Food-surplus generating Punjab, Haryana and some adjoining districts of Rajasthan are short of water and states have been at loggerheads over sharing the meager water of theRavi, Beas and Satluj rivers allotted to India under the Treaty. Diversion of some waters from the Western Rivers would alleviate this water stress and strengthen our food security. Such diversion is entirely feasible.

River Chandra, a major tributary of the Chenab flows immediately to the north of Rohtang Pass while the river Beas flows to the south of it. Recently, a road tunnel has been constructed connecting the two sides of this Pass. The north end of the tunnel is at the same level as the Chandra River. A small barrage on this river with another similar tunnel for water will transfer the much-needed water to Beas. Since Chandra is at a much higher altitude, the transferred water will have considerable fall and will generate power that will offset the cost of the project. Once the water comes to Beas, it will come to Bhakra Dam too through the Beas-Satluj Link and will generate more power at multiple points on the way. This water will serve the needs of Punjab, Haryana, Rajasthan and even the drinking water needs of Delhi. Pakistan’s supplies will not materially suffer, as a few MAFs transferred in this manner will only reduce the water that is wastefully flowing through Pakistan to the Arabian Sea.

All this will remain wishful thinking until the mandarins in the South Block can be persuaded to cast aside their fear of China coming to the aid of Pakistan.

Source : Daily World

The writer RN Prasher is a retired IAS officer of Haryana cadre | Personal Opinions

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