Rivers are not man-made waterways but naturally developed water resources. There are 148 rivers in the world out of which 30 traverse through three countries, 9 through four countries and 13 through five or more. These trans-boundary water resources are 60% of the world’s fresh water flows and 153 countries have territory within at least one of the 286 trans-boundary Rivers and lake basins. Many countries sharing these waters have operational arrangements covering 90% or more of their shared rivers and lakes. These arrangements are dictated by unchangeable geographical realities and common heritage in regards to these waters.
A number of International laws also provide wealth of precedents on water use rights and obligations for both upper and lower riparian. The customary international law for trans-boundary fresh water resources stresses their equitable utilization. The Madrid Declaration of 1911 says that the regime of rivers and lakes, contiguous or successive, could not be altered by one state to the detriment of a co-riparian without the consent of the other.
Similarly, the Article 2 of Declaration of Montevideo 1933 points that no state may, without the consent of the other riparian state, introduce into water courses of an international character, for industrial or agricultural exploitation of their waters, any alterations which may prove injurious to other interested states.
Article 4, Chapter 2 of Helsinki Rules 1966 on the Uses of the Waters of International Rivers’, adopted by the International Law Association, insists that, “Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin”.
UN Convention on the Law of the Non-navigational Uses of International Watercourses adopted by General Assembly on May 21, 1997, is the treaty governing shared freshwater resources and is universally applicable to all member states. This Convention contains 37 articles arranged in seven parts. Yet Article 5, contained in Part II, reflects the principle that is widely regarded as the cornerstone of the Convention, and indeed the law in the field for equitable and reasonable utilization and participation. It requires that a State sharing an international watercourse with other States utilize the watercourse, in its territory, in a manner that is equitable and reasonable vis-à-vis the other States sharing it.
India is not in a position to divert the river waters and build a storage capacity for the diverted water.
The foregoing explicitly emphasize two things: that the first right over the rivers is that of the people living in the basin and the second that the shared waters could neither be stopped nor diverted without the consent of the other riparian state.
The Indus Water Treaty between Pakistan and India concluded in 1960 with World Bank being its guarantor in regards to sharing of river waters also provides for consensual arrangement for any change in the treaty and bars its unilateral revocation.
In view of the foregoing facts the Indian action to hold the treaty in abeyance is not only a blatant violation of the international law but also the bilateral treaty between the two countries. It surely is an act of aggression and Pakistan is justified in giving strong reaction to this unilateral and hostile action by India.
It would perhaps be pertinent to mention that Modi has been threatening to divert river waters ever since he has become Prime Minister of India. He is now using the Pahalgam tragedy to implement his long cherished desire besides achieving political motives. It would perhaps be pertinent to mention that India and Pakistan have been locked in a controversy over construction of Kishanganga dam and Ratleelectric Hydroelectric Plant on the river allotted to Pakistan in the treaty which Pakistan considers its violation. India has also for some time been demanding negotiations to modify the treaty. The issue is still in limbo.
In the given circumstances Pakistan must raise the issue at appropriate international forums to fight its case in regards to sharing of river waters under the Indus Water Treaty. The livelihood of millions of people associated with agriculture using these waters would be at stake in case India goes ahead with her threat. This would also add humanitarian dimension to the issue and can create conditions for a war between the two countries. Pakistan may also consider taking legal action in the matter while continuing efforts to save the situation.
I think the Indian leadership also needs to realize that by fomenting war hysteria and implementing hate-based policies are going to harm India itself in the long term. Both the countries need to live at peace with each other for ameliorating the lot of millions of people living below the poverty line. Wars bring death and destruction. They are particularly fraught with unimaginable consequences if they happen between two nuclear states. That would be a recipe for mutual destruction. Therefore sanity must prevail to prevent any catastrophic outcomes.
I think it is now obligatory on the international community and the UN to defuse the situation by playing a mediating role and also ending this saga of blame-game over terrorist incidents by establishing an independent commission to probe the terrorist incidents within IIOJ&K, India as well as within Pakistan allegedly supported by India so that this irritant is removed for ever.
After having dilated on the dispute over sharing of river waters and Indian threat to hold Indus Water Treaty in abeyance as well as its international dimensions, I am of the view that India is not in a position to divert the river waters and build a storage capacity for the diverted water. It is only a hollow threat. No body in the history of the world has ever done it. Only a mad person could envisage such an action. The implementation of this mad plan would require at least 30 years involving astronomical costs. Practically it poses no immediate threat to Pakistan. However it is still justifiable to sensitize the world about Pakistan’s rights under the treaty and the international Conventions and highlighting Indian indiscretions in this regard.
The writer is a former diplomat and freelance columnist.