A treaty to keep

India should not, and cannot, go back on the Indus Waters Treaty that it concluded with Pakistan in 1960. Any talk of abrogating or withdrawing from it amounts to chauvinism of the ill-informed kind.

"We know no spectacle so ridiculous as the British public in one of its periodical fits of morality."

ANYONE who scans the newspapers from mid-December 2001 to mid-January 2002 will be prompted to conclude that Macaulay's remark is very true of "the periodical fits" of Indian chauvinism. In the last week of 2001, the government leaked a list of options under its consideration. One of them was abrogation of the Indus Waters Treaty which India had concluded with Pakistan in 1960. "When Pakistan cannot honour the Simla agreement and the Lahore Declaration, then why should we honour the Indus Waters Treaty?" a Union Minister said (The Telegraph, December 23, 2001).

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" (The Hindustan Times, December 23). A writer on strategic affairs was as ill-informed, and as bigoted. He urged that "the option of abrogating or withdrawal 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 Indian Express, December 25).

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 writer was indirect ("economy and food security"). But the objective was made plain - to starve the "Pakistanis" into submission.

It reveals 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 (vide the writer's "Water in time of war: The need for a U.N. declaration'', Frontline, January 13, 1995). 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.

Nor does international law permit the abrogation of one treaty because another has been broken. Even the unilateralist U.S. gave notice, under Article 15 (2) of the Anti-Ballistic Missile Treaty (1972), before withdrawing from it. The Indus Waters Treaty has no such provision. Apart from the World Bank, it involved Australia, Canada, Germany, New Zealand, Britain and the U.S. in a collateral Indus Basin Development Fund Agreement signed on September 19, 1960, with Pakistan; the day Jawaharlal Nehru and Ayub Khan signed the Treaty at Karachi along with W.A.B. Iliff, President of the World Bank. Pakistan also signed a Loan Agreement that day with the World Bank. No words need be wasted on the international repercussions of India's denunciation of the Treaty. It would activate the U.N. Security Council. What message will this send, moreover, to Nepal with which India concluded the Mahakali Treaty on February 12, 1996, or to Bangladesh with which it concluded the agreement on the waters of the Ganga on December 12, 1996? It would fortify a plank in Pakistan's case on Kashmir - the rivers on which its existence depends flow from Kashmir.

But can India stop the flow of the waters now even if it tried? A Pakistani official familiar with the Treaty said on December 23 that India had no storages on the rivers flowing into Pakistan and was, thus, in no position to withhold their waters. It would have, first, to set up storages on the rivers, which would take years to complete. Dr. Mubashir Hasan, a staunch advocate of conciliation with India, said that if the waters from the Indus system to Pakistan are reduced by one per cent it would amount to starvation threat for a population of 14 lakh people. "No government of Pakistan can take such a measure lying down."

It is necessary to discuss the issue in detail for two reasons. First, because if a step that was not even contemplated during the wars of 1965 and 1971 is advocated now, it reflects growing delusions of great power grandeur which bode ill for the country. Secondly, the implications need to be understood better. Mooted once, the plea might well be revived again.

What is least known is that even if the Treaty did not exist, India would have no legal right whatever to stop the flow of the rivers. "The Harmon Doctrine" was swiftly discredited in the land of its origin, the U.S., and lies buried beyond recall. Judson Harmon, the Attorney-General, was asked by the 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 increasingly to 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 the "case presented is a novel one".

Professor Stephen C. McCaffrey tears his opinion to shreds in a detailed analysis. (The Law of International Watercourses: Non-Navigational Uses; Oxford University Press; pages 514; 65). When Bangladesh took the Farakka Barrage dispute to the U.N. General Assembly in 1976, India told the Special Political Committee (at the 21st meeting): "India's views regarding the utilisation of waters of an international river were similar to those held by the majority of states. When a river crossed more than one country, each country was entitled to an equitable share of the waters of that river... Those views did not conform to the Harmon Doctrine of absolute sovereignty of a riparian state over the waters within its territory... India, for its part, had always subscribed to the view that each riparian state was entitled to a reasonable and equitable share of the waters of an international river".

HOWEVER, right from Partition till the Indus Waters Treaty and, in some respects, even thereafter, India swore by the Harmon Doctrine "while even the U.S. government recognised Harmon's opinion for what it was: a piece of advocacy that might be useful as a negotiating device but hardly one that provided a basis for resolving concrete controversies." Prof. McCaffrey's book is truly a definitive work alike in the wealth of documentation and in its rigorous analysis. He shows, for instance, how selective Harmon was in citing precedents.

As the wise Justice Oliver Wendell Holmes said: "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 apportionment without quibbling over formulas" (New Jersey vs. New York 283 U.S. 336 1931). In 2002 it is not only untenable but barbaric to assert a right "to cut off all the waters within its (state's) jurisdiction" and deprive the lower riparian of "a necessity of life".

This is now a recognised rule of international law, irrespective of any treaty. It is also followed by tribunals in inter-state disputes within federations. A water-course system is a natural phenomenon. It becomes "international" when international political boundaries are superimposed on it as and when new states are created by partition. This is true not only of surface water but also of groundwater. Modern international water-course law covers both. "The constant movement of the earth's water through the hydrologic cycle means that it would be futile for any one state to attempt to subject freshwater within its borders to absolute control. It also means however that the international community has a strong interest in this resource, including its protection and equitable apportionment." It is not a domestic affair.

Born of the U.S. Supreme Court's decisions in inter-state apportionment cases beginning in the early 20th century, and supported by decision in other federal states, the doctrine of equitable utilisation was applied to international watercourses as the basic, governing principle of law.

Only a year after Harmon's opinion American members of the Joint Commission accepted that "Mexico has been wrongfully deprived for many years of a portion of her equitable rights in the flow of one-half of the waters of the Rio Grande..."

Prof. McCaffrey 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". He writes: "Absolutist approaches to the law of the non-navigational uses of international water courses have also been roundly rejected by every expert body that has examined the question. From the pioneering Madrid Resolution of International Regulations regarding the Use of International Watercourses, adopted by the Institute of International Law at its Madrid session in 1911 to the International Law Association's famous Helsinki Rules of 1966, and the International Law Commission's 1994 draft articles, these organisations have strongly endorsed approaches emphasising the avoidance of unreasonable harm to other riparian states and equitable accommodation of competing interests of states sharing international watercourses. They do not stop there, however. Beginning with the 1911 Madrid Resolution, they generally recommend the establishment of 'permanent joint commissions' for the avoidance and settlement of differences, as well as for the management of shared freshwater resources."

In the River Oder case in 1929 the Permanent Court of International Justice at The Hague ruled that a solution of the problem lay not in the idea of right of passage in favour of upstream states, but in that of a community of interest of riparian states. "This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian state in relation to the others. The Court's ruling applied also to non-navigational use since it was based on 'a community of interest in riparian states'."

More to the point is the decision of its successor, the International Court of Justice 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.

"2. Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention."

The 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 applied the River Oder precedent and 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'." which binds all States, treaty or no treaty, though the Convention has still not entered into force. The Court specifically cited Article 5.

The author's commentary on the provisions of the Convention is instructive. Three fundamental obligations emerge: the obligation to utilise an international watercourse in an equitable and reasonable manner; the duty to prevent significant harm to other riparian states; and the obligation to provide prior notification of planned measures that might affect other states sharing a watercourse. To these three may be added two others. The first is the emerging substantive obligation to protect international watercourses and their ecosystems against unreasonable degradation. The second is the overarching duty of riparian states to cooperate with each other in their relations concerning shared freshwater resources.

THE International Law Association, a non-official body founded in 1873, adopted at its meeting in 1966 a set of articles known as the Helsinki Rules on the Uses of the Waters of International Rivers embodying "the general rules of international law" on the subject. Article IV says: "Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin." That is not a matter of arbitrary assessment. Article V lists 11 "relevant factors" for an objective determination of what constitutes "a reasonable and equitable share".

The Indus Basin Treaty marked a statesman-like retreat from the Harmon postures India had adopted after Partition, ignoring the background. The framers of India's Constitution unwisely ignored Sections 130-132 of their model, the Government of India Act, 1935. These empowered the Governor-General to appoint a Commission to inquire into complaints in respect of "the use, distribution or control" of inter-provincial rivers. The Federal Court was given jurisdiction to give its opinion on the issue. In September 1941, the Governor-General appointed a Commission "to investigate the Complaint of the Government of Sind about their interests in the waters of the river Indus". It comprised Sir B.N. Rau, then a Judge of the Calcutta High Court, and two Chief Engineers from Uttar Pradesh and Madras.

The Commission said: "The Act... recognises the principle that no Province can be given an entirely free hand in respect of a common source of water such as an inter-provincial river. This is in accordance with the trend of international law as well as of the law administered in all Federations with respect to the rights of different states in an inter-state river... A Province cannot claim to do whatever it likes with the water of a river regardless of the injury which it might inflict on other Provinces or states lower down".

In 1947, Sir Cyril Radcliffe's Report on the boundary between East and West Punjab reckoned with the problems that would arise. He was asked to apply both the communal composition of the area and "other factors". The Upper Bari Doab (UBD) Canal system watered more lands in Lahore district than in Gurdaspur and Amritsar districts. (Aloys Arthur Michel; The Indus Rivers: A Study of the Effects of Partition; Yale University Press, 1967; pages 188-9. Vide also N.D. Gulhati; Indus Waters Treaty: An Exercise in International Mediation; Allied; 1973). The headworks of the UBD Canal were in Gurdaspur district which was assigned to India, as were also the Ferozepur headworks.

The boundary line was certain to cut across the Indus basin and canal systems. On December 30, 1947, Sarup Singh and Mohammed Abdul Hamid, the Chief Engineers of both sides in Punjab, hurriedly agreed to a "stand-still agreement" on the UBD Canal and the Ferozepur headworks till March 31, 1948. It was approved by the Punjab Partition Committee. On April 1, 1948, East Punjab discontinued delivery of waters from the UBD to the lower part of the canal. Gulhati fairly writes: "There is no question but that, under the conditions then prevailing, the action then taken by East Punjab could not but be regarded by West Punjab and Pakistan as provocative" (page 64). The Indo-Pakistan Indus Waters dispute had begun in a stark form. As it happened, the Indo-Pakistan Arbitral Tribunal also died on March 31, 1948. East Punjab had sought to assert a right. It refused to restore the flow of water in the canals "unless West Punjab recognised that it had no right to the water."

An Agreement was signed on May 4, 1948. Supplies of water were resumed. Differences on the law were reserved. West Punjab "agreed to deposit immediately in the Reserve Bank such ad hoc sum as may be specified by the Prime Minister of India."

The course of the dispute until its resolution by means of the Treaty of 1960, which McCaffrey traces, is instructive. After a visit to the sub-continent, David Lilienthal, head of the seven-state Tennessee Valley Authority (TVA), wrote an article in Collier's of August 4, 1951 ("Another Korea in the Making") in which he suggested that "the whole Indus system must be developed as a unit - designed, built and operated as a unit", like the TVA, "jointly financed (perhaps with World Bank help)..." The World bank President Eugene R. Black wrote to the Prime Ministers of India and Pakistan on September 6, 1951, to enquire whether they "are disposed to look with favour upon Mr. Lilienthal's proposal". If so, he added, "I should be most happy to recommend that the Bank lend its good offices". Both Prime Ministers accepted the proposal, as Black confirmed in letters to them on March 13, 1952. After prolonged discussions, the Bank put forth, on February 5, 1954, a 12-page "Proposal for a Plan for the Development and Use of the Indus Basin Waters".

IT was after sustained and hard bargaining that the Indus Waters Treaty was signed in 1960. It allocated the waters of the "eastern rivers of the Indus basin" - the Sutlej, the Beas, and the Ravi - to India and those of its "western rivers" - the Indus, the Jhelum and the Chenab - to Pakistan. Pakistan would construct link canals on the western rivers to replace its sources of water from the eastern rivers, and India would supply water from the eastern rivers to Pakistan during a 10-year transition period while the construction went on. The Treaty obligates each country to refrain from any interference with the rivers allocated to the other, with specified exceptions for certain domestic, non-consumptive, agricultural, and hydroelectric uses.

"The Bank's settlement efforts succeeded in part because it was in fact possible to increase the amount of available water by the construction of works and in part because the Bank was able to secure the participation of various other countries in arrangements to fund those works." Denunciation of the Treaty cannot fail to incite reaction from the World Bank as well as the countries which provided the money. In Article VII "the two parties recognise that they have a common interest in the optimum development of the Rivers, and, to that end, they declare their intention to cooperate, by mutual agreement, to the fullest possible extent."

A Permanent Indus Commission was set up comprising a Commissioner for Indus Waters from each side (Article VIII). "The Commission shall meet regularly at least once a year, alternatively in India and Pakistan". The annual meeting must be held in November. The Commission reports to both governments every year before June 1. Article IX contains detailed provisions for the resolution of disputes by "a neutral expert" or by "a court of arbitration". Article XI reserves the legal rights and contentions of both. "Nothing in this Treaty shall be construed by the Parties as in any way establishing any general principle of law or any precedent." India chanted a hymn of praise to the Harmon Doctrine while burying it. The Treaty can be terminated only by another treaty "concluded for that purpose between the two governments" (Article XII (4)).

Can India denounce the Treaty in exercise of its sovereign rights? Such rights as formerly existed are now restricted under Article 42 (2) of the Vienna Convention on the Law of Treaties (1969): "The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to the suspension of the operation of a treaty." Even after a valid denunciation, obligations under international law continue (Article 43).

Valid grounds for denunciation are - if it "may be implied by the nature of the treaty" (Article 56); "a material breach" of a treaty entitles the aggrieved side to terminate it - and no other treaty as reprisal (Article 60); impossibility of performance is a ground for termination (Article 61) as also "a fundamental change of circumstances...which was not foreseen by the parties", provided that it constituted "an essential basis" of consent and "radically" transformed the extent of the obligations to be performed. Even so, boundary treaties are unaffected. A party that breaks a treaty cannot invoke this right (Article 62). India will, thus, have to withdraw from this Convention in order to withdraw from the Indus Treaty.

Now, some recent developments. On February 16, 2002, Pakistan alleged a "virual suspension" of the Treaty by India on December 24, 2001, when it suspended inspection by Pakistan's engineers of India's 450 MW Baghlihar hydro-electric project on the Chenab. India denied the charge. But a crisis of sorts looms while the inspection remains suspended. It is a vital right under the Treaty.

There is an unsavoury aspect which brooks no evasion. Minister L.K. Advani raised the cult of the Indus with the Sindhu Darshan festival at Leh in 1998 and in 1999 when Prime Minister Atal Behari Vajpayee and Minister George Fernandes also participated (Praveen Swami; The Kargil War; LeftWord; page 97). The Indus Treaty was a Nehru achievement. The Bharatiya Janata Party regime is out to undo Nehru's achievements and the legacies of secularism and pluralism that he bequeathed to the nation.

Compulsions of geography persuaded India to retain the Punjab rivers and consent to Pakistan's "unrestricted use" of the three western rivers which flow from Kashmir. The State is rich in water but deficient in power; 80 per cent of it comes from outside. The State produces only 870 million units; it seeks 6,000 million units. The Indus Waters Treaty grants India limited rights for the construction of power projects on the western rivers. Hence the Wular Lake dispute (Annex. D). Storage rights are even more restricted (Annex. E). The fact that the State was not consulted when the Treaty was signed does not affect its validity; it only makes Chief Minister Farooq Abdullah's periodic, if contrived, tantrums understandable. The greater loss has been to agriculture in a drought-prone State.

Apart from the major rivers, even rivulets like Erin, Madhumati and Vishev have the potential for hydel generation.

Why not retrieve the seeds of progress from the jaws of a deadlock? It may be too much to expect that from the Vajpayee government. But thoughtful Indians and Pakistanis should reflect on possible concessions on the rivers by Pakistan as part of a process of conciliation which leads to a settlement of the Kashmir dispute.