Coercive water diplomacy

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When the Indus Waters Treaty (IWT) was signed in 1960 amidst much fanfare, US President Eisenhower hailed it as “one bright spot ... in a very depressing world picture that we see so often.” Since then, the treaty has survived wars, border clashes, acts of terrorism, and disputes – until now.

Following the terrorist attack in Pahalgam, the Modi government imposed several unilateral and totally unjustified sanctions against Pakistan. One of them was to suspend the IWT until Pakistan “credibly and irreversibly abjures its support for cross-border terrorism”. Pakistan has rightly called this an act of war because this is an outright attack on Pakistan’s critical infrastructure. This is also an act of patent malfeasance that has become a hallmark of the BJP-led government’s posture towards Pakistan.

By suspending the IWT, India has violated the treaty itself on two grounds. First, there is no provision for suspension in the treaty at all. Second, Article XII states that it “shall remain in force until terminated by a duly ratified treaty concluded for that purpose between the two governments”. That clearly implies that neither side can unilaterally suspend or terminate the treaty. When negotiated, it was conceived as a treaty in continuity, finality and perpetuity.

The Indian announcement also contravenes the 1969 Vienna Convention on the Law of Treaties (VCLT), which is a grund norm for all bilateral treaties. Articles 60 and 61 stipulate three conditions for the suspension or termination of a treaty: (a) a material breach; (b) a serious violation of a collective/multilateral treaty; and (c) impossibility of the performance of the treaty. Another such condition would be the emergence of a new peremptory norm of international law – jus cogens – that conflicts with the treaty. None of these conditions has been cited by India as a justification for the suspension

The Indian government has cited an extraneous reason – until Pakistan abjures its support for “cross-border terrorism”. First, this is a hastily trumped-up accusation that has been repudiated by Pakistan and dismissed largely by the international community. Second, such invocations and linkages are not legally recognised by the Law of Treaties or customary international law.

The suspension of the IWT is a subset of India’s larger strategic coercive policies against Pakistan, which include state-sponsored acts of terror, espionage, sabotage of megaprojects such as the China-Pakistan Economic Corridor (CPEC), and deliberate disruption of Pakistan’s relations with other states. Now, India has added water coercion to its arsenal.

But this is not the first time India has weaponised water. Over the decades, it has violated the treaty in bits and pieces. For instance, on the three rivers allocated to Pakistan – the Indus, the Jhelum and the Chenab - hydropower dams with pondages exceeding the prescribed limits have been constructed, water flows have been diverted, and large reservoirs have been built. Typically, India did not share full hydrological data on time. During periods of tension and crises, India would speed up the completion of dams whose specifications were not approved by the Permanent Indus Commission.

It has contravened the design specifications given in the annexures of the treaty covering the Kishanganga and Ratle hydropower plants, constructed at the Jhelum and Chenab Rivers. There are other plants - Pakal Dul, Kiru, and Sawalkot – being constructed that are not admissible under the treaty.

In late 2022 and early 2023, the Indian government sent communications to Pakistan through the Permanent Indus Commission seeking modification in the treaty on the disingenuous grounds of climate change and population growth, among others. Pakistan did not agree.

Has India turned off the tap, as its Water Resources Minister C R Patel recently claimed? The answer is No.

Following India’s announcement, water experts have parsed Indian threats and actions and drawn the following conclusions.

Billions of cubic meters of water from three western rivers continue to flow into the Indus Basin in Pakistan throughout the year. India does not have the infrastructure to hold such a massive volume of water or divert it to rivers, reservoirs, dams and canals. Such a megaproject, if executed, will take years, even decades. From the run-of-the-river dams, it will have to spill out water through turbines to generate electricity. So far, despite repeated violations, it has not been able to use even the 20 per cent of the three rivers permissible under the treaty.

During suspension, India will, however, not inform Pakistan about new dams and diversions. Such moves could wreak havoc in Pakistan during the dry season. An even more serious concern is that India would hold back hydrological data crucial for planning and preparing for floods. It could hold or release water arbitrarily and drain silt and sediments in its rivers downstream without warning. It has already started doing so in the Chenab Basin and has started desilting operations at Baglihar and Kishan Ganga dams. By so doing, instead of mitigating the effects of climate change, it would be exacerbating them and grievously hurt Pakistan’s agriculture, industry and livelihoods.

Pakistan would counter this act of war. The first destination is the World Bank, which is also the signatory of the treaty and coordinates the Neutral Expert and Court of Arbitration processes. But it is equally important to take the UNSC and it five permanent members on board. The option of referral to the ICJ must be advanced. The court adjudicates transboundary water disputes, though its role in this domain has been criticised. The best course of action would be to leverage multilateral, third-party and bilateral diplomacy to defuse the crisis and restore the IWT.

Indian military attacks on May 7 have compounded the situation. It has taken its aggression to the next level by attacking civilians and mosques in Azad Kashmir in Pakistan. On the other hand, we have, in accordance with Article 51 of the UN Charter authorising self-defence, given a fitting response by destroying India aircraft and assets on the land. It is a long haul; it is a long war.

The writer is the former president of Azad Jammu and Kashmir.