S Qamar Afzal Rizvi
THE international treaties signed under the ambit of international law intrinsically focus on defining the legal responsibilities of states regarding their conduct with other states. The recent baffled move —of India to go for abreakup of the Indus Water Treaty(IWT) — depicts the polarized, insane, lunatic and short sighted approach of the top echelons of the Modi’s government. Such a move, had it gone farther, would have blemished India’s global image of a so called democratic state. No parameter of International law can allow any country to move in such an unwarranted way as India intends to do. Truly, India’s orchestrated threat of a unilateral revocation of the IWT has no legal and moral locus standi.
Prime Minister Narendra Modi recently met with officials to review provisions of the Indus Water Treaty. In that meeting it was decided that India will “exploit to the maximum” the water of Pakistan-controlled rivers, including Jhelum, as per the water-sharing pact. India has also decided to suspend the Indus Water Commission talks to further build pressure on Pakistan. The ongoing apprehensions, allegations and suspicions— that are reflections on an impending conflict between the two states—also advocate that in every case of grave differences over the past 56 years, the Treaty has served solutions acceptable— albeit not wholly satisfactory—to both the concerned parties. “Water scarcity in the Indus [Basin] is institutional, cultural, and political,” said an expert, reader in politics and environment at King’s College London. “If it was just the physical problem, it is solvable. There are solutions. It’s not as bad as it is made out to be…”
The Preamble of the Treaty, clearly indoctrinates that the objects and the purposes of this Treaty are to attain the most complete and satisfactory utilization of the waters of the Indus systems rivers, thereby fixing and delimiting the rights and obligations of each party in relation to the other concerning the use of these waters, and also advocating for the settlement of questions arising from the application or the interpretation of the Treaty. The objectives set out in the Preamble cannot be read in isolation from each other.
The IWT consists of twelve article scovering 79 paragraphs. It has eight detailed annexes that cover 102 pages. Under Article VI, specific provisions are made for regular mutual exchange of river and canal data between the two countries, and Article VII is referred to future cooperation. Under Article VIII, both countries undertook to establish a permanent post of Commissioner of Indus Waters. Article IX of the Treaty deals with the settlement of differences and disputes. If the Commissioners are unable to resolve a specific problem, provisions have been made for reference to a Neutral Expert (NE) under Article IX and Annexure E If the NE fails to solve the problem, a Court of Arbitration can be convened under Article IX and Annexure G.In Interpreting the Treaty, the NE has rightly and justifiably relied on the rules of the Vienna Convention on the Law of Treaties upholding customary international law with regard to ordinary methods of treaty interpretation.
State laws, in terms of water rights, vary as to the extent of the rights, but controversy exists— as to the extent of riparian rights for diversion of water— to sell to others, for industrial purposes, to mine the land under the water for gravel or minerals, or for docks and marinas. And of course, consistent in these questions is that an upper riparian owner may not act to deny—riparian rights to the owner of downstream proper ties along the water way—meaning the water may not be dammed and channelled away from its natural course.
The Treaty was vigilantly drafted— during a period of tension between India and Pakistan— aimed for predictability and legal certainty in its drafting. Therefore, the Treaty contains clear language and wording— on how and to which extent —India and Pakistan may be allowed to utilize the waters of the Indus system of rivers. The Treaty is also a clear reflection on the rights and obligations of both Pakistan and India. These rights and obligations should be read in the light of new technical norms and new standards as provided for by the Treaty.
Furthermore, and taking account of the ordinary methods of interpretation, the NE has been of the opinion that interpretation of the Treaty must be guided by the principle of integration and the principle of effectiveness, as advocated by the twin reference of the rights and obligations rightly incorporated under article 2/3 of the Treaty.
Consequent upon failing the talks for 2.5 years with India on resolution of Pakistan’s objections regarding Kishanganga & Ratle HEPs failed, Islamabad has now rightly approached to The Hague based court of international arbitration. In the days since Pakistan announced it will appeal to The Hague, the Indian side seems to cast its prejudice and polarization against the IWT— particularly reflected by an evil Indian design that by divorcing the Treaty, India may foil the Pakistani claims on the IHK. This hawkish Indian line of thinking is borrowed from the Harmon Doctrine-which has been universally repudiated by the experts in international law, in U.S. law, and in any ethical or moral set of rules.
The focus has to be shifted to Article VII that is entitled ‘’Future Cooperation” that emphasises setting up of new hydrological and meteorological observation stations and implementing engineering works including drainage ones. The preamble of the Treaty also endorses the truth: India can’t unilaterally abrogate this Treaty. The fact of the matter is that being an upper riparian state, India has to strictly adhere to its ascribed responsibilities, and most significantly, India being an upper riparian, can’t set a negative precedent, particularly keeping in view the sensitivities that China is also an upper riparian state.
Therefore, a simple workable and pragmatic solution is to form a joint study group of experts who should function as a part of the mechanism available within the purview of the Treaty on bilateral basis rather than letting these differences be taken over by political and emotional narratives. Concluded—after prolonged indoctrinations/ negotiations facilitated under the skilled aegis of the World Bank— the IWT is the world’s most viable water-sharing pact, an estimate rightly endorsed by the US State Department.
— The writer is an independent ‘IR’ researcher based in Karachi.