INDIANS lament – “we give water, but Pakistan exports blood”. Capitalising on this, the government held out a threat of termination of the Indus treaty after the terrorist attack in Uri in 2016 and now, after the Pulwama suicide bomb that killed 40 Central Reserve Police Force personnel on their way to patrolling duty.
Water distribution is not simple arithmetic. It is not even equal distribution, but equitable distribution. Basin planning and attendant treaties are complex constructs. Flowing water in its natural state belongs to none for one to have possessory rights.
The unilateral termination of a treaty is not an unknown coercive method in international diplomacy. States do not consider the legal risk arising from the termination as significant, since there is no international judicial forum with compulsory jurisdiction to adjudicate on the legality of the termination and enforce its decision. Therefore, if the government has adopted this diplomatic strategy, there is nothing inappropriate in it generally. However, this article confines its examination to the questions of the legality of the termination of the treaty in international law and its injurious impact on the ground.
A Treaty of indefinite duration
What is Indus treaty ? After the partition and independence in 1947, India and Pakistan negotiated and finally entered into a treaty in 1960, under the aegis of the World Bank, defining their respective dominion over the vast Indus basin water flowing into six rivers – Indus, Jhelum and Chenab – the Western Rivers and Ravi, Beas and Satluj – the Eastern Rivers. The broad contours of the treaty are: (i) India was allowed to use the waters of Eastern Rivers exclusively (Art II); and (ii) Pakistan was granted the right to receive most of the natural flow of the Western Rivers. In addition, India was also conferred some limited rights in the Western Rivers to construct reservoirs for 3.6 MAF to (a) produce power by run of the river technology; and (b) to supply water for irrigation in Jammu and Kashmir (Art III). The Indus treaty does not provide for unilateral termination, withdrawal or denunciation. It is a treaty of indefinite duration.
India has an arguable case for the revision of the treaty (as distinguished from a unilateral termination or withdrawal) by bilateral discussion. The Indus treaty, after six decades, has increasingly come under challenges.
The Indus treaty was hailed around the world as a great diplomatic success. India got water to meet its needs, including trans-basin lands in the desert in Rajasthan. However, the critics called it a bad bargain and pointed out that the Western Rivers with abundant water estimated as 136 MAF annually had gone to Pakistan, while the Eastern Rivers, which have only 33 MAF of water annually were with India, despite India being an upper riparian State. The problem with the criticism is that water distribution is not simple arithmetic. It is not even equal distribution, but equitable distribution. Basin planning and attendant treaties are complex constructs which have troubled even great minds who think alike. Flowing water in its natural state belongs to none for one to have possessory rights.
The optimum or fuller development of a river implies prevention of wastage to the sea. Nobody has a right to waste the water, which is a precious gift of nature. Basin States are duty bound to prevent waste both individually and jointly.
The important point is that the physical impact arising from the unilateral termination by the upper State is not even skin deep, because, by knocking out a water treaty, the natural flow of water by gravity cannot be stopped automatically. A water treaty is not like a water tap where the water will stop when you turn it off. The termination of treaty, therefore, has no meaning at all on the ground because the river water will continue to be drawn to Pakistan by gravity, regardless of a treaty or otherwise. Because of this, instances of unilateral termination of water treaties are rare. Hungary attempted to terminate the Budapest Treaty of 1975 on the Danube river in 1993 on the ground of damage to the environment in the changed circumstances, but it was rebuked by the International Court of Justice in 1997 (Gabcikovo Nagymaro case: Hungary vs Slovakia: 116 ILR 1).
Revision vs termination
However, India has an arguable case for the revision of the treaty (as distinguished from a unilateral termination or withdrawal) by bilateral discussion. The doctrine of Ribus sic stantibus has been crystallised as “Fundamental Change of Circumstances” in Article 62 of the Vienna Convention on Law of Treaties (VCLT). However, the VCLT which came into force in 1980 has no application to the Indus treaty entered which into in 1960. It can, however, be relied on as an emerging customary rule of international law. The Indus treaty, after six decades, has increasingly come under challenges. The treaty merely defines the rights of parties, without incorporating the underlying fact, even though they have been discussed. The revisitation of the treaty, therefore must not be ignored if one has regard for the shortages in India in meeting its legitimate needs, the declining basin yield or quantum of water in the basin, threat of climate change, occurrence of sedimentation in Pakistan, wastage of water to the sea, etc.
A third option
There is a third option. Article VII of the Indus treaty imposes certain soft obligation with regard to “Future Co-operation” on optimum development of the rivers. The optimum or fuller development of a river implies prevention of wastage to the sea. Nobody has a right to waste the water, which is a precious gift of nature. Basin States are duty bound to prevent waste both individually and jointly.
The Chandra and Bhaga rivers can be linked across the mountain by tunnels to the Eastern Rivers, namely Ravi, Beas and Satluj. The link is likely to transfer about 3 to 4 MAF of water. If this quantity becomes available to India, it will be a boon because the inter-state problems between Punjab, Haryana and Rajasthan can be partly solved.
Is there wastage to sea in the Indus basin ? The Western Rivers generate about 136 MAF of water, out of which, 132 MAF belongs to Pakistan, after reserving about 4 MAF of water for India for its use in J & K. But, has Pakistan made full beneficial use of 132 MAF of water? The answer is undoubtedly no. Available data shows that Pakistan has been using around 105 MAF and may use another 10 MAF of water ultimately. Therefore, about 21 MAF of water (not strictly quantified) is obviously running into the sea as waste. The topography in Pakistan is a practical constraint for non-utilisation of this water. But, this waste can be captured in the higher reaches of the river in India. There are no investigations which are in the public domain. But, a look into any basic map would suggest that the streams, Chandra and Bhaga, which are the tributaries of Chenab (part of the Western Rivers) can be connected to the Eastern Rivers, which have fallen to the share of India. The Chandra river transverses about 115 km before the confluence and similarly, the Bhaga river transverses through narrow gorges a distance of 60 km before the confluence. These tributaries can be linked across the mountain by tunnels to the Eastern Rivers, namely Ravi, Beas and Satluj. The link is likely to transfer about 3 to 4 MAF of water. If this quantity becomes available, India can use 2 to 3 MAF and part with 1 MAF to Pakistan to wet its part of the Ravi as a succour to Lahore. This will be a boon to India, because the inter-state problems between Punjab, Haryana and Rajasthan can be partly solved by using 2 to 3 MAF in Punjab in the border areas.
It is now time for India and Pakistan to give up their jingoism to discuss how to stem the wastage of water that is currently flowing into the sea in Pakistan and work out a plan for the optimum development of the rivers.
The time is ripe
It is now time for India and Pakistan to give up their jingoism to discuss how to stem the wastage of water that is currently flowing into the sea in Pakistan and work out a plan for the optimum development of the rivers to the common benefit of both countries under Art VII of the Indus treaty. Once normalcy is restored, it is hoped that the Union Ministry of Water Resources, Ministry of External affairs and Ministry of law would take up the issue in larger interest.