Article 26 of the Vienna Convention on the Law of Treaties (1969) explicitly states that no bilateral agreement can be unilaterally suspended. However, regardless of any bilateral agreement, India does not have the legal authority to block water to Pakistan.
Let’s consider, for a moment, the hypothetical scenario where the Indus Water Treaty never existed. Does this imply that India possesses proprietary rights over the waters that flow into Pakistan? The answer is NO. Even in the absence of the IWT, India would not have held exclusive control over water resources, as international law clearly dictates the equitable sharing of trans boundary waters.
The water-sharing between India and Pakistan is not exclusively governed by the Indus Waters Treaty. While the treaty serves as a significant framework intended to facilitate the amicable and bilateral resolution of water disputes, it does not constitute the sole legal instrument regulating water sharing between the two nations.
The water resources cannot be claimed solely based on geographical positioning as an upper riparian state. International law provides a framework for regulating water sharing between upper and lower riparian states, ensuring that the rights and needs of all parties are taken into account. Various international agreements and conventions, such as the UN Watercourse Convention, the Protocol on Water, the UN Charter, the Universal Declaration of Human Rights, the Stockholm Declaration, Agenda 21, the Helsinki Rules, and the UNECE Water Convention, play a crucial role in this context. Some of these principles are considered customary international law, which means they are binding on all nations, regardless of whether they have formally recognized or ratified them.
Resolution A/RES/64/292, adopted on August 3, 2010, clearly recognizes water as a fundamental human right. India cannot deny this right merely because it is an upper riparian state.
As per the UN Watercourses Convention, India, being an upper riparian state does not have outright ownership of the water resources flowing within its territory. Rather, it is regarded as a shared resource, held in trust, where the downstream riparian state retains all reasonable rights to its use.
This United Nations Convention states that “access to water” is a basic human right for all individuals. Article 10 holds that the right to access water for drinking takes precedence over the right to access water for agriculture, electricity generation, or any other purposes, whether within a nation or in neighboring riparian countries.
The Mar del Plata Action Plan, also recognizes water as a fundamental human right. It asserts that every individual deserves access to drinking water-both in ample quantities and of a quality that fulfills their essential need.
Pakistan is an agricultural country that heavily relies on water for its survival. Yet, when Pakistan is deprived of its rightful water share, it is not just an injustice; it is a threat that endangers the lives of millions.
Under the UN Water Convention, India is obligated to ensure that Pakistan has access to adequate water resources for essential needs, including drinking water and agricultural purposes.
Article 55 of the UN Charter compellingly reminds us that ensuring a higher standard of living and promoting economic and social progress are fundamental responsibilities we share. Water is the essence of life itself, and without it, the aspiration for elevated living standards becomes an unattainable dream.
Article 25 of the Universal Declaration of Human Rights states that every person has the right to a standard of living that ensures their health and well-being and that of their family. The question is: Can these rights be realized without access to water?
Resolution A/RES/64/292, adopted on August 3, 2010, clearly recognizes water as a fundamental human right. India cannot deny this right merely because it is an upper riparian state.
Access to clean water is not merely a privilege; it is a basic human right that must be upheld for all.
Denying the people of Pakistan their fundamental right to water constitutes a grave injustice and amounts to a war crime.
The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood.