Modi stops short of abrogating Indus Water Treaty

ISLAMABAD: Indian Prime Minister Narendra Modi was once again brought crashing down to earth on Monday when experts on water management counseled him that India could not afford to unilaterally walk out of and abrogate the 56-year-old Indus Waters Treaty, to send a signal to Pakistan that “blood and water cannot flow together”, in reference to the Uri militant attack.

Experts cautioned Modi that abrogation of the treaty could be interpreted as a declaration of war.Modi’s own analysts cautioned that “The itch to ‘punish Pakistan’ could have a collateral impact on the development of India’s East and Northeast”.

Earlier it were senior members of his security council that cautioned him against beating the war drums and any attack across the border which was tantamount to declaring a war. Chairing a meeting to review the Indus Water Treaty in the company of Foreign Secretary Jaishankar, NSA Ajit Doval, Principal Secretary Nripendra Misra, the Water Resources secretary and senior PMO officials, Modi came up with a face saving decision and leaked to the media without any official statement, “India has decided to suspend Indus water commission talks until Pakistan-sponsored terror in India ends”. 

In all, 112 meetings have been held by the two commissioners.  Since Pakistan’s Foreign Office rarely comments on media reports, New Delhi will have to wait for an official response from Pakistan, if any.

The News spoke to Ahmer Bilal Soofi, former law minister and lawyer of international repute, who responded, “Unofficial reports from India that Modi has  suspended talks between the Commissioners then that is, in itself, a non-coercive act of hostility. However, more so, India is itself going down the route of threatening a water war with Pakistan by better utilizing water as an upper riparian. This will compound Pakistan’s fears that India can stop water for security reasons anytime and IWT is never an iron-clad guarantee for the continuous flow of waters. Thus, in this episode, India has verified that Pakistan’s fears were not ill-founded and that they are, in fact, real”.

In India itself, patience appears to be in short supply as desperate measures are being taken to take attention away from the ongoing brutalities inside Indian Occupied Kashmir, which must be the only region in the world where an undeclared war has been imposed, daily seeing coffins wrapped in Pakistani flags heading towards the graveyards, which are running out of space for the dead.

Noted Indian journalist Maya Mirchandani of NDTV commented, “Talk of abrogating the Indus Waters Treaty will invite criticism/ concern over India’s reliability in keeping its commitments, internationally, not to mention (the) very real possibility that China - where the Indus, Sutlej and the Brahmaputra originate - could well return the favor.”

With the UNGA in session, Soofi advised Prime Minister Nawaz Sharif that since senior officials are still present in New York, Pakistan should consider bringing the threat of India to walk away from the Treaty to the notice of the United Nations (UN) Secretary General under Article 99 of the UN Charter, for such interruption of water will constitute a threat to international peace and security as mentioned in the UN Charter itself.

“Further, Pakistan can also bring this to the notice of all the permanent members of the UN Security Council, which was meant precisely to intervene whenever there is, in any region, a threat likely to endanger international peace and security. 

Considering that interruption in the water flow, following revocation of the Treaty, will be an existentialist threat to the State, the situation already warrants interference by the UN as one already endangering international peace and security”, he added.

Experts add that India does not have the structure nor the capacity to deal with the water in case it wants to divert it from Pakistan.  Indian media quoted Shakil Ahmad Romshoo, head of the Earth Sciences Department at Kashmir University, as saying that an argument is being made that India, being upstream, can stop the flow of waters to Pakistan and bring it to its knees. 

He counseled that river waters cannot be stopped or released at the turn of a switch.  “Waters cannot be immediately stopped from flowing to Pakistan unless we are ready to inundate our own cities. Srinagar, Jammu and every other city in the state and in Punjab would get flooded if we somehow were able to prevent the waters from flowing into Pakistan,” he said.

Soofi, a firm believer in legal diplomacy, advocated that Indian threats to revoke the Indus Waters Treaty (IWT/Treaty) are clearly against international law because international law does not allow the unilateral suspension of a treaty. 

“In fact, the provisions are to the contrary, as states have an obligation to honour the treaties in good faith. Further, there are no provisions for India to unilaterally walk away from the Treaty. If it tries to do so, it will be viewed as a breach of said treaty”, he added.

Soofi appeared worried that the developments over the last day or two on the Indian side have now given Pakistan the ability to take the position that the IWT is inadequate to allay Pakistan’s fear of the lack of guarantee of water flow and that the IWT is deficient in providing a mechanism to address this issue. “Therefore, this matter can rightly be taken up as an independent agenda of bilateral talks outside the IWT framework. Thus, this incident has, thankfully, freed Pakistan’s elbows to raise this issue in the UN and any other international forum, including bilaterally”, he said.

If India ever thinks that it can walk away from the IWT it would be in reality contemplating stopping or interrupting the water flow of the rivers into Pakistan.  “This can be viewed as a hostile act because preventing the flow of waters will result in threatening the right to life of the people of Pakistan, destroying the agriculture and crushing their reliance on hydro-electricity. This will, in turn, equip Pakistan with the right to retaliate under the international law principles of the Law of Reprisal which permit a state to carry out a retaliatory measure against an unlawful act”, he pointed out.

It is also a principle of law that when an international treaty or a contract has been substantially performed, it cannot be revoked; particularly when Pakistan has already incurred the sufferings under the provisions of the Treaty by having denied itself the waters of Ravi, Sutlej and Beas (which have been dried up), in consideration of the continuation of the uninterrupted flow of water in the three Western Rivers. 

Ashok Malik, a senior Indian analyst cautioned, “There are suggestions in some quarters — including in cloud cuckoo land and news television studios, which are now interchangeable domains — that India should unilaterally tear up this treaty. 

India is a candidate for the Nuclear Suppliers’ Group (NSG), one of the international system’s foremost rule-setting bodies. If India abrogates a long-standing treaty at this point, it will only give India skeptics at the NSG a handle to ask if New Delhi is ready for a global governance role”.

Meanwhile according to PTI, the Indian Supreme Court in Delhi Monday refused to grant an urgent hearing on a PIL seeking declaration of the India-Pakistan Indus Water Treaty as unconstitutional.

“There is no urgency in the matter. It will come up for hearing in due course,” a bench comprising Chief Justice T S Thakur and Justice A M Khanwilkar said. Advocate M L Sharma, who filed the PIL in his personal capacity on the issue, sought urgent hearing of the matter saying the treaty was unconstitutional as it was not signed as per the constitutional scheme and hence should be declared “void ab initio.” “Keep politics aside. The matter will come in due course,” the bench said when the lawyer insisted on an urgent hearing.  

Meanwhile according to PTI, the Indian Supreme Court in Delhi Monday refused to grant an urgent hearing on a PIL seeking declaration of the India-Pakistan Indus Water Treaty as unconstitutional.

“There is no urgency in the matter. It will come up for hearing in due course,” a bench comprising Chief Justice T S Thakur and Justice A M Khanwilkar said. Advocate M L Sharma, who filed the PIL in his personal capacity on the issue, sought urgent hearing of the matter saying the treaty was unconstitutional as it was not signed as per the constitutional scheme and hence should be declared “void ab initio.” “Keep politics aside. The matter will come in due course,” the bench said when the lawyer insisted on an urgent hearing.