Hydropolitics of hate

Irrational thinking usually leads to irrational decision. Hate is an irrational and visceral instinct, and those consumed by it are always prone to illogical acts. Regardless of its illegality, the threat of the unilateral withdrawal from the Indus Waters Treaty (IWT) would always be interpreted as a hate crime.

This treaty is guaranteed by the World Bank and has kept India and Pakistan away from much talked-about water wars. The IWT is premised upon a graduated approach wherein the two countries can refer their disputes to the Indus Water Commission, failing which the issue is promoted to the ‘difference’ level to be settled by a neutral expert. And when this does not resolve the issue, it becomes a ‘dispute’ to be referred to a court of arbitration (COA).

The difference worth noting is that in the case of a neutral expert’s referral, the project under dispute is not stopped. But in the case where the project is referred to the COA, it can be stopped. India, as per the provisions of the IWT, is supposed to inform Pakistan six months in advance before starting any new hydroelectric project. India is allowed to use 20 per cent of the western rivers’ water for limited irrigation and non-consumptive uses like power generation, navigation, and fishing, etc.

Pakistan suspects that India is constructing hydroelectric run-of-the-river dams in the garb of power generation to enhance its storage capability and withhold water in times of scarcity and to release it during floods. India’s complaint is that Pakistan needlessly raises objections to its hydroelectric projects that invariably delay the projects, besides increasing the project cost.

Pakistan’s objections are rooted in its historical experience as a lower riparian state which has always remained insecure due to the hostile intent of the upper riparian – which is not playing a fair game. Because of India’s stubbornness, the integrated water basin management and the common tackling of climate-induced trans-boundary issues have forever remained in the pipe line. Pakistan had raised objections to the Kishanganga Hydroelectric Project in 2010 with the court of arbitration at The Hague on the basis that the project altered the course of river, besides reducing its flow. Pakistan lost the case but got some compensation as nine cubic metres of flow was guaranteed for River Neelam in Pakistan. Pakistan’s objections to the design of the 850MW Ratle project on River Chenab were similarly based upon apprehensions that it would reduce the flow of water for Pakistan by 40 per cent.

The fears were rooted in Pakistan’s experience of Baghliar Dam on similar river where the neutral expert, Raymond Lafitte, had rejected Pakistan’s objections on the height of dam and gated spillways. Indian refusal to share the inflow-outflow data at Baghliar also did not help the matters.

India often exploits the water scarcity issue, taking refuge behind drought conditions to justify low flows downstream towards Marala Headworks in Pakistan.

Pakistan ultimately decided to take the Ratle issue to the court of arbitration in 2016 due to the fact that it tackled legal, technical and systemic issues whereas the neutral expert only tackled technical issues. Besides this, Pakistan wanted construction on Ratle Dam stopped till the time its design concerns were not satisfied. That could only be done in a court of arbitration and not through neutral expert.

It is apparent that the court of arbitration option suits Pakistan while the neutral expert one suits India as it could continue dam construction and create facts on ground to later claim immunity to change of design like in the case of Kishanganga Dam. Since in the case of Ratle India was asking for a neutral expert while Pakistan asked for the court of arbitration. The World Bank initially processed both requests but later on December 12, 2016 paused the process to give time to both countries to find a way forward for resolution of the dispute on mutually acceptable terms. The dispute resolution therefore remained paused for more than five years during which India was allowed to complete and inaugurate the Kishanganga project.

In April 2022, the World Bank announced the reopening of the dispute resolution process of arbitration as well the consultation by neutral expert. The proceedings of the court of arbitration that began at The Hague on January 27, 2023 were boycotted by India. It also sent a notice to Pakistan on January 25, 2023 seeking modification of the treaty to bar third party intervention in the disputes besides castigating Pakistan and the World Bank for sabotaging the treaty through initiation of the concurrent proceedings. India also threatened the unilateral revocation of the treaty. Now the question is whether the treaty cn be revoked unilaterally.

According to Article XII that deals with the termination and modification of the IWT, it is clear that the treaty can only be terminated through another treaty between both the countries. The IWT in its present form is of indefinite duration and will remain to be legally binding till the time there is another treaty signed between India and Pakistan that terminates the IWT.

Article 56 of the Vienna Convention on the law of treaties also stipulates that no treaty that already has a provision for termination and withdrawal can be terminated like the IWT.

If India violates the IWT unilaterally, it would violate a well-accepted customary principle of ‘pacta sunt servanda’ (arguments must be kept).

Despite India’s unilateral revocation, if any, the treaty will remain valid and give Pakistan recourse to the court of arbitration as provided in Article IX and Annexure G of the IWT. The revocation of the IWT therefore would make India a pariah nation in the sanctum sanctorum of international law, an ignominy a nation with big power ambitions can ill afford.

The Indian leadership would do well not to cave in to the lure of hydro-politics of hate.

The writer is a security analyst and a PhD scholar. He can be reached at: rwjanj@hotmail.com