A river is more than an amenity; it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower states could not be tolerated. … The effort always is to secure an equitable appointment without quibbling over formulas. —Justice Oliver Wendell Holmes in New Jersey vs. New York 283 U.S. 336 (1931).
ON September 18, four terrorists crossed the Line of Control (LoC) to attack the Indian Army’s Administrative Unit I in the Uri Sector, killing 19 soldiers and injuring 20. Three days later, the Government of India made it known to the press that it would consider “reviewing” the Indus Waters Treaty of 1960. News of these cerebral storms in South Block was plastered on the pages of all the newspapers. The adroit spokesman of the Ministry of External Affairs (MEA), Vikas Swarup, hinted darkly: “Eventually any cooperative arrangement [sic] requires goodwill and mutual trust” and “for any such treaty to work, it is important that there must be mutual cooperation and trust between both the sides. It cannot be a one-sided affair.” Why, the preamble of the treaty itself said that it was based on goodwill. So, indeed, are preambles of very many treaties. He refused to go further, teaching the press corps a lesson: “In diplomacy, everything is not spelt out.” No wonder foreign diplomats have, for years, ridiculed our diplomats’ penchant for legalese and splitting hairs.
A correspondent noted that it was a “veiled” threat, but he tore apart the diplomatic hijab . “This would mean that water could be the new weapon used by India in teaching a lesson to Pakistan.” Indeed, on September 27, the press carried Prime Minister Narendra Modi’s remark: “Blood and water cannot flow together.” As ever, he used metaphor as substitute for a statement. The biannual meetings of the Commissioners of the Permanent Indus Commission, which the treaty provides for, will not be held. The treaty will not be abrogated, it will be rendered toothless. Shades of the fate of Article 370—no abrogation, just emptying of the contents. An inter-ministerial task force has been set up to devise plans as to how India can “maximise the benefits” from the three western rivers which the treaty has assigned to Pakistan, namely, the Indus, the Chenab and the Jhelum. The treaty gives India exclusive use of the Sutlej, the Beas and the Ravi. However, it gives India some defined restricted rights in respect of the western rivers. On September 28, we were told officially that India was “reviewing” its decision to stay on in the Indus Commission set up by the treaty, as if it is an option it can freely exercise without breaking the treaty.
We have been through this more than once in the past. During Operation Parakram, Brajesh Mishra, the National Security Adviser (NSA), leaked to the editor of a daily the various options that were being considered. Snapping the treaty was one of them. As if on the crack of a whip, there was an orchestrated chorus of voices in support. It included two former High Commissioners to Pakistan and a couple of “experts” on strategic affairs. “When Pakistan cannot honour the Simla Agreement and the Lahore Declaration, then why should we honour the Indus Waters Treaty?” a Union Minister asked.
G. Parthasarathy, a former High Commissioner to Pakistan, went one better: “Should we not consider measures to deprive the Pakistanis of the water they need to quench their thirst and grow their crops? Should we not seriously consider whether it is necessary for us to adhere to the provisions of the Indus Waters Treaty? … extraordinary circumstances demand extraordinary responses.” A writer on strategic affairs, Jasjit Singh was as ill-informed and as bigoted as Parthasarathy was. “The option of abrogating or withdrawing from the Indus Waters Treaty brokered by the United Nations in late 1950s exists and Pakistan’s reneging from its treaty agreements with India provide enough reasons to do so. Its follow-on steps could have a serious negative impact on Pakistan’s economy and food security.”
The treaty was not “brokered” by the U.N., but by a more potent body, the World Bank. The diplomat directly targeted the people (“Pakistanis”) and wished to deprive them of water “to quench their thirst” and to “grow their crops”. The “expert” was indirect (economy and food security). But the objective was made plain—to starve the “Pakistanis” into submission.
War crime
It revealed at once in a flash, as it were, barbaric inhumanity, emotional immaturity, intellectual incompetence, great-power arrogance and political ineptness. Water was used as a weapon of war in ages bygone. Article 54 of Protocol I (1977) to the Geneva Conventions of 1949 says: “Starvation of civilians as a method of warfare is prohibited.” It specifically mentions drinking water installations and supplies and irrigation works. Article 8(b) (xxv) of the Rome Statute of the International Criminal Court lists as a war crime “intentionally using starvation of civilians as a method of warfare by depriving them (people) of objects indispensable to their survival, including wilfully impeding relief supplies”. Forbidden even during armed conflict, use of water as a weapon in diplomacy is a far graver offence. This is a war crime.Prof. Marcos D. King has aptly characterised it as “weaponisation of water”. He recalls that the Dutch opened their dikes in order to stop advancing French forces in the Third Franco-Dutch War while our newly acquired ally the United States’ strategy in the Korean War involved attacking dams in North Korea.
A far more recent despot, Saddam Hussein, used water as a strategic weapon against the Shia population known as the Marsh Arabs, who reside in the swampy area near the confluence of the Tigris and the Euphrates rivers. The Marsh Arabs rebelled against the regime in the wake of the 1991 U.S. invasion, and Saddam responded by systematically diverting the water feeding the marshes—driving more than 100,000 people from their homes, destroying a unique way of life, and causing an environmental disaster of “epic proportions” according to the U.S. intelligence community. Our professional hawks have an illustrious pedigree. In October 2014, the “Islamic State”, a disgrace to Islam, diverted the Khalis tributary of the Tigris river to flood parts of the town of Mansouriya in Iraq.
Prof. King documents his charge. “At least two conventions classify water weaponisation as a war crime. First, use of water as a weapon violates Additional Protocol II of the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts, Article 49. According to the protocol, “starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.” The state parties to the Geneva Conventions have an obligation to bring to trial or extradite persons who have allegedly committed the violations referred to in the Additional Protocol.
Using water as a weapon also violates the Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques of December, 10, 1976 (ENMOD). In its Article I, the Convention prohibits the contracting parties from engaging in “military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party”. Violations are reported to the U.N. Security Council and “parties to the Convention agree to provide support or assistance in accordance with the Charter of the United Nations” (“The Weaponisation of Water in Syria and Iraq”, The Washington Quarterly , Winter 2016).
Tara Smith, Lecturer in Law at Bangor University, notes that the International Criminal Court (ICC) has begun to arraign at the Hague those who commit crimes against the environment, including use of water as a weapon . “But this is not the first time the world has witnessed genocide through environmental means. In the early 1990s, for example, Saddam Hussein diverted the giant Tigris and Euphrates rivers in order to drain the Mesopotamian marshes in southern Iraq, a place widely regarded as the location of the Garden of Eden. Hussein wanted to destroy the community of Marsh Arabs that lived there, in reprisal for attempting an uprising against him. While the ICC cannot prosecute cases that took place before it was established in 2002, this type of environment-based genocide may well be the focus of future prosecutions.” This was written as recently as September 23.
We do not enjoy a particularly good reputation in this matter. In the highly respected medical journal The Lancet (December 2002), Franklin White wrote an article entitled “Water: Life Force or Instrument of War?” in which he recalled a statement by a Minister in the A.B. Vajpayee government. “On 13 May 2002, the Minister of Indian Water Resources Bijoya Chakraborty stated: ‘If we decide to scrap the Indus Waters Treaty, then there will be drought in Pakistan and the people of that country would have to beg for every drop of water.’ ”
Prof. White noted: “According to a comprehensive review by the U.K. Department for International Development, most of all, water security affects the powerless.… Given the life-sustaining nature of water, and the effect of its contamination on health, especially among children, destruction of water resources could be viewed as a type of biological warfare, notwithstanding that all allegedly civilised nations have renounced this form of killing people.” Have they indeed?
Treaty’s purposes
Legally and politically, abrogation of the treaty is as impossible as abrogation of Article 370. The Indus Waters Treaty was signed in Karachi on September 19, 1960, by Jawaharlal Nehru, Mohammad Ayub Khan and W.A.B. Iliff, vice-president of the World Bank, for purposes specified in the treaty which are highly relevant now. World Bank president Eugene Black was ill.
On the same day and at the same place, two other agreements were also signed. One was the Indus Basin Development Fund Agreement. It was signed by representatives of Pakistan, the U.S., the U.K., Australia, Canada, Germany, New Zealand and the World Bank. The other was a loan agreement between Pakistan and the World Bank. They are inseparably linked to constitute an integral whole.
The first agreement created an Indus basin development fund of almost $900 million to finance the construction of irrigation and other works in Pakistan. Participating governments were to provide $640 million; $174 million were payable by India under the Indus Waters Treaty and a loan of $80 million was to be provided by the World Bank to Pakistan. The programme for construction work in Pakistan included eight link canals, nearly 400 miles long for transferring water from the western rivers to areas formerly irrigated by the eastern rivers; two storage dams, one on the Jhelum and the other on the Indus; power stations; 2,500 tube wells; and other works to integrate the whole river and canal system. The treaty envisaged the construction of a storage dam on the Beas river in India which, together with the Bhakra Dam on the Sutlej and the Rajasthan canal, would irrigate large new areas in India. The treaty provides for the services of a neutral expert to make a final decision on technical questions and for a court of arbitration to decide disputes.
The treaty was long in the making. In 1951, David Lilienthal, former head of the Tennessee Valley Authority in the U.S., visited both India and Pakistan and wrote an article in Collier’s magazine in August 1951. He called the canal water dispute “pure dynamite, a Punjab powder keg” and warned that “peace in the Indo-Pakistan subcontinent is not in sight with these inflammables around”. He wrote: “With no water for irrigation (West Pakistan) would be desert. 20,00,000 acres would dry up in a week, tens of millions would starve. No army, with bombs and shellfire, could devastate a land as thoroughly as Pakistan could be devastated by the simple expedient of India’s permanently shutting off the sources of water that keep the fields and the people of Pakistan alive.”
Lilienthal made a constructive proposal: “The starting point should be, then, to set to rest Pakistan’s fears of deprivation and a return to desert. Her present use of water should be confirmed by India, provided she works together with India (as I believe she would) in a joint use of this truly international river basin on an engineering basis that would also (as the facts make clear it can) assure India’s future as well.” He suggested that the new engineering works be jointly financed, “perhaps with World Bank help”.
Eugene Black wrote to the Prime Ministers of India and Pakistan in September, 1951, offering the good offices of the bank, if their governments were disposed to act on Lilienthal’s proposal, and the offer was accepted. On February 5, 1954, the World Bank put forward a concrete proposal, which paved the way for the treaty 16 years later.
Termination is no option
India cannot scrap the treaty without incurring the wrath of those five countries and the World Bank. True, the preamble to the treaty records that it was concluded “in a spirit of goodwill and friendship”, though neither was in abundant supply even then. In any case, evaporation of their remnants does not spell erosion of the text. The wars of 1965 and 1971 left the treaty alone. It has no provision for its unilateral termination, either. That can be done only by another “duly ratified treaty concluded for that purpose between the two governments” (Article XII (f)). This rules out unilateral termination, even if blood and water reject each other’s company.
The Vienna Convention on the Law of Treaties (1980) puts paid to any termination of a treaty because goodwill between its signatories is gone. Article 63 is explicit: “The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty.” Even severance of diplomatic relations does not affect the treaty.
As for South Block dragging its heavy feet on the working of the Permanent Indus Commission (Article VIII of the treaty), the Commission is meant to have a permanent existence. It comprises two Commissioners, one from each side, and is indispensable for the working of the treaty. The members enjoy diplomatic immunity. Obstructing the working of the Commission entitles either side to move the court of arbitration; specifically if the Commission’s report “is being unduly delayed in the Commission”. This happens inevitably if the Commissioners’ meetings are delayed “unduly” and persistently. Must we stoop to that?
Remember, the law has moved on. Even if the treaty did not exist, India would not be able to claim the imagined rights of an upper riparian State to stop the flow of the rivers, as it did in 1948. The Harmon Doctrine is discredited even by the U.S. Supreme Court. Judson Harmon, the Attorney General, was asked by the U.S. State Department for an opinion on the rights of the U.S. and Mexico on the shared river, the Rio Grande. Farmers in the U.S. had begun to increasingly divert its waters, significantly reducing its flow to Mexico. Harmon responded on December 12, 1895: “The fundamental principle of international law is the absolute sovereignty of every nation as against all others, within its own territory…all exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other source.” He conceded that he had found in support of his view “no precedent or authority which has a direct bearing” and that the “case presented is a novel one”.
Prof. Stephen C. McCaffrey tears his opinion to shreds in a detailed analysis. He considers writings of jurists, state practice and rulings of courts—domestic and international—over the years. All rejected the Harmon Doctrine and endorsed the principle of equitable apportionment based on the concept of a “community of interests”.
The International Court of Justice ruled on this point in 1997, in the Gabcikovo-Nagymaros case between Hungary and Slovakia. That very year, the U.N. General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses. Its Article 5 reads: “(1) Watercourse states shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse states with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse.”
That case concerned a project on the Danube provided for by a 1977 treaty between Hungary and Czechoslovakia. Citing environmental reasons, Hungary stopped work on a portion of the project and purported to terminate the treaty unilaterally in May 1992. On January 1, 1993, Slovakia became an independent state. The court said: “Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly. The court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube—with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetkoz—failed to respect the proportionality which is required by international law.”
Prof. McCaffrey makes two important points. The court based its ruling on “the basis of the customary international law of shared water resources—in fine, equitable utilisation—rather than the 1977 treaty”. Next, it treated the 1997 Convention as evidence of the principle and “modern development of international law” that binds all States, treaty or no treaty, though the convention has still not entered into force. The court specifically cited Article 5 ( The Law of International Watercourses: Non-Navigational Uses , Oxford University Press, 2001).
On September 30, China, an upper riparian state, blocked a tributary of the Brahmaputra river ( The Hindu , October 2). On disputes regarding Inter-state rivers, tribunals set up by law follow the law on equitable apportionment, not the Harmon Doctrine.
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