By: Jinsar Ali Jamro
International conflicts often occur due to irredentist claims, security dilemma, competing political ideologies, and economic interests. However, in case of India and Pakistan, the sources of conflict go beyond these. These include allegations of proxy warfare, growing chauvinism of Modi, and putting Indus Water Treaty (IWT) in abeyance by New Delhi is the standout irritant between two nuclear armed states of the region right now. India, since its inception, has exploited this vulnerability of Pakistan by using water as a coercive tool to serve its geo-strategic ambitions. Mark Zeitoun and Jeroen Warner, scholars at the London WATER Research Group (LWRG) aptly explain this phenomenon under the Hydro-hegemony theory in 2005. According to this theory, dominant states use water to exert their influence over less powerful states by threatening the water security of weaker states. In this context, India is a powerful state that consistently weaponizes water against Pakistan. Nonetheless, the issue was resolved when both archrivals signed the landmark IWT with the facilitation of the World Bank (WB). Under this treaty, India secured its control over three eastern rivers; the Sutlej, Ravi, and Beas. Whereas, Pakistan secured got three western rivers, namely the Indus, Chenab, and Jehlum.
Unfortunately, Indian hydro-aggression did not end by this treaty, but even increased since Bharitya Janta Party’s (BJP) ascended to power. India in last two decades started a series of hydropower projects on western rivers. Though, IWT does allow India to use western rivers for hydropower generation, but these should not require the need to built dams or reservoirs; rather, it can generate electricity from natural flow and elevation of the river. Contrary to that, India initiated the construction of mega projects to generate hydroelectricity on western rivers. For instance, it has started 330 Kishangana MW project and Wullar barrage on Jehlum. Besides, it has also initiated the construction of 850 MW Rattle hydropower plant and Baghlihar dam on Chenab. As per reports, water flow in river Chenab declined to 6,000 cusecs from 10,000 on average in last decade. Not only this, but these projects have potential to increase regulation capacity of India also. Such as, India can stop Chenab’s water to Pakistan for 30 to 40 days. However, prior to these projects it had capability to stop Chenab’s water for only 8 to 10 days. Similarly, the proposed Wullar barrage will help India to stop the water of river Jehlum for 30 days.
This increased Islamabad’s apprehensions that forced it to invoke Article IX of the IWT. This article delineates the procedure, a three stage process, for addressing grievances of any party. It includes Permanent Commission, neutral expert appointed by the WB, and the Court of Arbitration (COA) established by the WB. Thus, in January 2023, Pakistan took Indian violations to the COA and it was set to announce its verdict. However, India not only boycotted the proceedings of the COA but also issued a notice to Pakistan on January 25, 2023, calling for the revival of the treaty by invoking Article 12(3). Since that date, India has sent several notices to revive the treaty; else wise, it has threatened to withdraw from the treaty unilaterally. What is more concerning is the more aggressive and uncanny attitude of New Delhi over IWT in post-Pahlgham incident as it has placed the treaty in abeyance. Verily, it is a chagrined move of New Delhi where all else tried by it has been failed. If it continues to act this way, it may lead to unthinkable consequences.
One might wonder that what went wrong with the treaty which had survived several wars, but seems to struggle this time. Answer to this includes many, and the one is growing Modi’s malice where international law has become fragile in the face of aggressors across the world. Besides, the elevated status of India in the eyes of western powers in Indo-Pacific region may have bolstered it to act with impunity. Internally, pressure to revive the treaty by Indian think tanks is one of the significant causes. For instance, the Institute for Defense Studies and Analysis (IDSA) published a report titled “Water Security for India: The External Dynamics” which called for the revival of the treaty. As per this report, IWT contains stringent provisions which deprive India from building hydropower projects on western rivers, so, it should be revised immediately.
Furthermore, this report proposed that Pakistan should be penalized under the “International Law Commission – Responsibility of States for Internationally Wrongful Acts 2001” a principle adopted by the UN in the wake of the War on Terror, since India alleges Pakistan of sponsoring terrorism. In addition, Indian policy makers believe that this treaty does not meet the current environmental constraints, particularly the adverse effects of climate change. Therefore, this should be revised. They also argue that this treaty is the outcome of bloc politics, where Pakistan enjoyed many benefits including this treaty by the west. So, this was the growing opinion that the treaty is favorable to Islamabad and the only option for India is to exploit it and then cry for more, because only crying child gets mother’s milk. Lastly, had Islamabad showed timely diplomatic deftness to Indian first notice, the situation would not have festered to such level. What India has done is a blatant violation of both the treaty and international law. India has
invoked Article XII (3) of the treaty which states that “the provision of this treaty may from time to time be modified”. The subsequent clause of same article explicitly states that, “provisions in treaty shall continue in force until terminated by a new duly ratified treaty concluded for that purpose between the two states”. This is how New Delhi is skewing the terms of treaty.
Furthermore, putting treaty in abeyance constitutes as an act of aggression under United Nations General Assembly’s resolution 3314 of 1974. Moreover, unilateral termination of the treaty by India would be a clear violation of Vienna Convention on Law of Treaties (VCLT) 1969. Article 54 of VCLT deals with the termination of treaties, it stipulates that, “the termination or withdrawal of treaty may take place either in accordance with the provisions of particular treaty, or by the consent of all parties included in treaty”. But India neither acted as per the law of the treaty, nor it is ready to sit with Pakistan. However, obligation to consult other party has origin in London Declaration of 1871 which states that “no power can liberate itself from the engagement of treaty, nor can modify the stipulation, unless with the consent of other party. Lastly, termination of IWT would be the violation of well established customary principle “pacta sunt servanda” of international law which means agreements must be kept.
Now, it is high time for Islamabad that it should let Indian aggression unanswered. Islamabad must internationalize Indian notorious record of illegally diverting water in all over South Asia. For example, India has illegally diverted Ganges river water from Bangladesh which is the violation of 1996 Ganges Water Treaty. India has also water dispute with China on Pongong Lake. And it has also water dispute issue with Nepal at the region of Kalapani. This all should be made known to the world. Including this, New Delhi must be realized that it too lives in glasshouse, so better to not throw stones. Because, whatever actions India take will set a precedent for china to respond similarly. In a way, it is cutting the branch by itself on which it sits. Also, it is dire need to highlight hypocrisy of India as it wants negotiations with one nation on basis of water rights while with other on water needs. It is mind boggling that how they claim that Tibetan water is for humanity, but Indus Basin is solely for Indians. So, the world should demand a mature statesmanship from India. Lastly, the world must make Modi Government mindful that IWT is a state-specific treaty, rather than regime-specific. For Islamabad, it should send clear message to P-5, Arab world, and in neighborhood, including to New Delhi that it does not seek escalation, but it will not shy away either from defending its water rights if India does not restore the treaty.
The writer is a freelance columnist
