Following the terror attack on tourists in Pahalgam resulting in more than two dozen deaths, India has, among other things, decided to hold the Indus Waters Treaty (IWT) in ‘abeyance’ till such time it is satisfied that Pakistan has stopped sponsoring terrorism. Pakistan has responded in kind by taking a number of retaliatory steps. Regarding the IWT, it has declared that any disruption of water flowing into Pakistan from the three rivers allocated to it under the treaty would be deemed ‘an act of war’ and that in such an eventuality it will respond ‘with full force across the complete spectrum of national power’. This sudden turn of events raises a number of questions which we propose to address in this piece. First, why did India hold the treaty in ‘abeyance’ rather than simply terminate it? Second, given that the IWT has nothing to do with the Indian charge against Pakistan of being a sponsor of terrorism nor has the latter been found to be in breach of any provision of the treaty, why did not India decide to target the IWT? Third, given the possibility of war between the two nuclear-armed nations which if it takes place could be apocalyptic that the world cannot afford, what is the way out of this imbroglio?
We begin with the term ‘abeyance’ which India has employed. The Oxford dictionary defines it as ‘a state of temporary disuse or suspension’. The Vienna Convention on the Law of Treaties 1969 does not employ it. Instead its article 57 uses the term ‘suspension’ which has more or less the same meaning as abeyance. As to the reason why India decided to hold the treaty in abeyance rather than simply terminate it, in our opinion, perhaps it did so to soften the impact of the brutality and horror that its action would have conveyed to the international community. It is to be noted that the effect of both the expressions in practical terms is more or less the same because in case of abeyance or suspension, it is up to the withholding party to decide whether or not it has cleared the sanctioned party of the charge. In other words, the removal of the suspension would depend on the sweet will of the party imposing it and the suspension could be indefinite. This can in practical terms lead to a simple repudiation of the treaty.
Some Pakistani commentators and government ministers have suggested a recourse to the World Bank which they contend is a guarantor of the treaty, while others have proposed taking the issue to the World Court.
The Pahalgam incident could be India’s ‘false flag operation’ meant to render the treaty dysfunctional. Despite the fact that the treaty has successfully completed about sixty five years of its existence, India has been most unhappy with it because it considers it as an obstacle in quenching its growing thirst for more water. It has adopted varying tactics to make the treaty dysfunctional. Originally it went for a pure and simple dismantlement of the treaty. For example, following the terror attack in Chatisinghpora 2000 (a false flag operation confirmed by Lt-Gen. Inderjit Singh Gill of the Indian army), Prime Minster Vajpayee threatened to do away with it as a punitive measure against Pakistan. Subsequently, the Indian government decided to achieve its objective through the gimmick of revision and modification of the treaty. According to the Hindu India has, since January 2022, sent four letters to Pakistan to initiate talks towards this end. Pakistan on its part is adamant on keeping the treaty untouched because it knows that opening it means opening of the Pandora’s box leading to complete unraveling of the treaty. To put pressure on Pakistan, India has suspended all meetings of the Permanent Indus Commission which is under legal obligation to meet at least once a year to discuss and resolve differences on sharing of water, construction of hydro power projects and data sharing on ecological aspects of the rivers.
Can the present situation lead to a water war between the two countries? Reflecting Mark Twain’s famous quip that ‘whiskey is for drinking but water is for fighting over’, during the last decade of the 20th century it was believed that water scarcity could lead to wars between states. However since the dawn of the 21st century a shift has taken place in the thinking as it is contended that the relationship between war and water scarcity is nothing but a myth and that states, as opposed to communities, have never waged a war over water in history. Thus, according to a study by professor Wolf et al of the Oregon state university, no two states have ever gone to war over the water issue in the past with the exception of one which took place between two Sumerian city-states, namely Lagash and Umma in 2,500 BCE, and that there is no likelihood of one happening in the future. On the basis of a database involving 6,400 cases the study claims that cooperation overrides confrontation between states because ‘it is neither strategically rational, hydrologically effective, nor economically viable’. However, this viewpoint has been challenged. For example, the Swedish writer, Terje Tvedt, has tried to prove that water wars are no myth and that they have been fought in the past with far-reaching consequences. It is noteworthy that three successive UN Secretaries-General, Boutros Boutros Ghali, Kofi Annan and Ban Ki Moon have sounded alarm bells of wars on the water issue in the future.
We are of the view that India and Pakistan are serious candidates for the first water war in the 21st century. This viewpoint is backed by many credible sources. For example, according to a number of secret cables sent to the State Department by American diplomats posted in the region, as revealed in the Wikileaks, the latter were not very hopeful of the two countries amicably resolving their differences over water. David Mulford, the US ambassador to India, in a secret cable dated 5 February 2005 expressed the fear that India’s dam building spree in Kashmir which, in his opinion, was questionable under the IWT, had the potential to destroy the peace process and even lead to war. Similarly, a group of more than twenty UN bodies in March 2009 warned that in view of rising tension over the water issue between the two countries, ‘the world would be perilously close to its water war’. Again, Henry Kissinger, the former Secretary of State, in an opinion piece published in 2013 predicted a nuclear war between India and Pakistan over the next couple of decades.
Given India’s belligerent attitude towards Pakistan on the water issue we are back to square one, I.e. a situation that prevailed after the partition. In 1948, India had withheld Pakistan’s share of water flowing into Pakistan from the Eastern Rivers, resulting in a highly tense and conflictual situation on the subcontinent. It was in this backdrop that David E. Lilienthal, the former head of the TVA, in 1951 visited the region. This was the period of the cold war and a hot war was raging in Korea. On his return to the US, he wrote two pieces in the Collier’s magazine in which he drew attention to the fact that a perilous situation existed in South Asia due to the water issue. He was of the opinion that if war broke out ‘it would undoubtedly put the US into another and bigger Korea’. Referring to the water issue, he warned that ‘it (water) is pure dynamite. A Punjab powder keg. Peace in the subcontinent is not in sight with these inflammables lying around. Unless a better answer on water is soon forthcoming even if the Kashmir plebiscite could be held, peace would not come.’ Eugene Black, head of the World Bank who happened to be Lilienthal’s friend read the two pieces and decided to get involved in the matter and lend his good offices which, after ten years of intense and highly difficult negotiations, resulted in the the IWT.
In view of India’s attempts to get rid of the treaty as discussed above, Lilienthal’s description of the state of the subcontinent in 1950 mutatis mutandis applies to the present-day situation. In fact, one can say that with the addition of the nuclear factor, the situation is even more scary. In this backdrop what is the way out? Some Pakistani commentators and government ministers have suggested a recourse to the World Bank which they contend is a guarantor of the treaty, while others have proposed taking the issue to the World Court. It must be emphasized that these suggestions are absolutely non-starters. As to the first proposal, they should know that the Bank is NOT a guarantor but only a facilitator; as to the second, we cannot have recourse to the ICJ because the latter cannot take cognizance of issues arising between members of the British commonwealth which is the case with the two countries. In our opinion, the real way out is for the American Administration to heed Lilienthal’s warning regarding the situation on the subcontinent which reflects the current situation in South Asia and intervene to save the IWT for the sake of peace in the world.
The writer is a former dean, QAU, and author of the book “Indus Waters Treaty: Political and Legal Dimensions.” He can be contacted at hussain_ijaz @hotmail.com