The Modi government has once again started threatening Pakistan, and is simultaneously building up domestic political support by announcing that it will divert the water from the Eastern Rivers from following into Pakistan. This announcement is a façade. Under the Indus Water Treaty (IWT), these three rivers, Sutlej, Beas and Ravi already belong to India and they can be used exclusively by India. Now since India can’t use its share, it flows over to Pakistan. Pakistan clearly enunciated in a statement, that it has no objections to such diversion, and the true objective of Modi’s government is to play the domestic audience. This will not work as a pressure tactic on Pakistan, since it is only residual water (grossly about 7 percent) that benefits Pakistan. In any event it would take years for India to build projects to divert even that residual share of the water. It cannot happen overnight.
Six rivers flow into Pakistan from India, and under the IWT three rivers have been assigned to each country for exclusive use. If India tries to stop water to Pakistan it would not be the first time it would violate provisions of the IWT. In the 1990s, India constructed a hydro-electric plant in Doda district along Chenab River. This river is one of the tributaries of the Indus River and was designated by the Indus Treaty for use by Pakistan and resulted in affecting mainly agrarian economy of Pakistan. Similarly the Indian move of the construction of a hydro-electric plant along the Kishanganga River is a violation of international law, and specifically the IWT.
International law provides a binding set of legal rights and obligations on both upper and lower riparian states in the context of water sharing. The position of customary international law for cross border freshwater resources such as rivers and lakes directs towards equitable distribution and the codification of the customary international law in the form of the Madrid Declaration of 1911. It clearly provides that one state cannot unilaterally alter fresh water resources to the detriment of another state where that fresh water resource may follow without its consent. In the same vein the UN Convention on the Law of the Non-navigational Uses of International Watercourses reinforces the principle of international law that if a state shares an international watercourse with other states, it may only utilize it in a manner that is based on equitable and reasonable utilization and participation.
International law provides a binding set of legal rights and obligations on both upper and lower riparian states in the context of water sharing. The position of customary international law for cross border freshwater resources such as rivers and lakes directs towards equitable distribution and the codification of the customary international law in the form of the Madrid Declaration of 1911. It clearly provides that one state cannot unilaterally alter fresh water resources to the detriment of another state where that fresh water resource may follow without its consent
Therefore, when international law is applied to the Indus rivers water, India is prohibited as an upper riparian state to stop in any way whatsoever, delay or divert waters of the rivers to the detriment of the state of Pakistan without its consent.
But, international law has been violated by states before. The record of India especially in relation to Pakistan is one of an outlaw of international and bilateral agreements. So can India block Pakistan’s water, past precedent suggests it can. However would India block Pakistan’s water? It would not.
First, blocking Pakistan’s water would result in a blow to the image that India is trying to maintain as the saner state at the global level, one that has already been dented by the Kulbhushan Yadav case and unfounded allegations on Pakistan post the Pulwama attack. In case, India does block Pakistan’s water, it would only be to Pakistan’s benefit, where it would be seen as the more legitimate state suffering from the hands of a self-assumed regional hegemon. It would have diplomatic consequences, and with India continuing to try to isolate Pakistan diplomatically, asking for a permanent position at the UN Security Council and the Nuclear Suppliers Group, India’s aim would be inordinately compromised.
Yet there’s more reason India would bleed itself should it decide to block Pakistan’s water. After the Uri attack in 2016, the Modi government threatened to scrap the IWT and stop the flow of water to Pakistan. In the midst of these tensions between India and Pakistan, China blocked a tributary of the Brahmaputra River in Tibet which resulted in severely impacting water flows in India. This was done as part of the construction of China’s most expensive hydro Lalho project. If India does in fact attempt to block Pakistan’s water, it would have no face to protest the violations of its water rights by China.
Pakistan and India are both mainly agrarian economies, and water disputes will hurt the economic development of both. India would never block Pakistan’s water, not only because it would be a violation of international law but also because of diplomatic consequences and it is time that it realizes why it is so important to act in accordance with the IWT.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law
Published in Daily Times, February 26th 2019.