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The Hindu
22-05-2025
- Politics
- The Hindu
Should water be used as a weapon?
The story so far: All is fair in love and war is a phrase that has literary roots and rhetorical appeal, suggesting that in matters of passion and conflict, rules can be discarded, and morality suspended. But in the realpolitik of nation-states, especially when it comes to shared natural resources, such romantic notions may be specious. Water, unlike territory or ideology, is not merely a symbol of sovereignty — it is a lifeline. Now that India has held the Indus Waters Treaty (IWT) with Pakistan in abeyance, in the aftermath of the Pahalgam terrorist attack, the question is not only about what is fair but also about what is legal and sustainable. Can water be wielded as a weapon without collateral damage to international credibility and long-term national interest? What is the history of the treaty? The IWT was born not out of goodwill, but necessity. In 1947, the Partition carved two nations out of British India but left the rivers of the Indus basin awkwardly distributed. The headworks of the system —crucial for irrigation — fell within Indian territory, while Pakistan was downstream and entirely dependent on river flows. When India briefly halted water supply to Pakistan in 1948, alarm bells rang across the region. It was in this context that the World Bank stepped in to mediate what has now become one of the most successful water-sharing agreements in modern history. Signed in 1960, the IWT allocated the eastern rivers — the Ravi, Beas, and Sutlej — to India, and the western rivers — the Indus, Jhelum, and Chenab — to Pakistan, while allowing India certain non-consumptive uses such as generating hydropower, provided they meet stringent design and operational conditions. It was a carefully calibrated compromise that reflected not just geography, but also the broader imperative of regional stability. The treaty has withstood three major wars (1965, 1971, and 1999), repeated border skirmishes, and complete diplomatic breakdowns. Its durability lies in its technical framing and the insulation it provides from political upheavals. Annual meetings between the Permanent Indus Commissions continued even during times of war. The IWT's dispute resolution mechanism — which includes bilateral consultations, neutral expert analysis, and, if needed, mediation through a Court of Arbitration— has enabled the treaty to function despite deep mistrust between the two countries. Yet in recent years, the insulation of the IWT from larger geopolitics has come under increasing strain. What about India's hydro-infrastructure development projects? India's renewed scrutiny of the IWT has come in the wake of terrorist attacks which have been claimed by Pakistan-based groups. The 2016 Uri attack and the 2019 Pulwama bombing catalysed calls from within India to re-examine the treaty. Some voices, particularly in political circles, suggested that water could be used as leverage, arguing that it was morally untenable to continue honouring an agreement with a state that encourages cross-border terrorism. This shift in tone has coincided with India's increasing hydro-infrastructure development in Jammu and Kashmir. Projects like the Kishanganga (on the Jhelum) and Ratle (on the Chenab) hydroelectric plants have been flashpoints of contention between both countries. While India insists these are compliant with treaty provisions, Pakistan argues that the design features give India excessive control over water flows, especially during the lean season — potentially threatening Pakistan's agricultural and ecological security. Pakistan has, therefore, invoked the IWT's adjudicatory mechanisms. In the Kishanganga dispute, Pakistan challenged India's diversion of water to a power plant. The Court of Arbitration, constituted in 2010, ruled in 2013 that India could proceed with the diversion, provided that it maintained a minimum downstream flow. The court also imposed limits on how India could manage its reservoirs. In the Ratle case, a fresh procedural conflict emerged. India sought the appointment of a neutral expert, considering it a technical issue while Pakistan wanted a Court of Arbitration. In 2016, the World Bank, tasked with administering the treaty's dispute process, paused both requests to avoid parallel proceedings. However, in 2022, it allowed both to go forward, prompting India to boycott the arbitration proceedings while participating in the neutral expert process. This precedent is significant. It confirms that the legal architecture of the IWT is not only active but likely to be triggered again if India were to withdraw from the treaty. Far from giving India decisive leverage, such a move could backfire by inviting a flurry of legal, diplomatic, and reputational consequences. Can a third party mediate? India has long maintained, especially since the Simla Agreement in 1972, that all disputes with Pakistan must be resolved bilaterally. This has been New Delhi's consistent position, particularly with regard to third-party mediation on Kashmir. However, the IWT predates the Simla agreement and contains its own provisions for third-party adjudication. Neutral experts and arbitrators are not external interlopers but treaty-sanctioned mediators agreed upon by both parties. India's participation in the Kishanganga arbitration and the neutral expert process for Ratle — however begrudgingly —acknowledges this reality. The invocation of the Simla agreement cannot nullify what the IWT permits. What about other such disputes? Inter-country water disputes are not unique to South Asia. Europe, too, has witnessed water tensions, particularly in the aftermath of war. After World War I, disputes arose between Hungary and Czechoslovakia over the use of the Danube river. These were largely managed through negotiated settlements under the League of Nations framework. More recently, the Gabčíkovo–Nagymaros case between Hungary and Slovakia, related to a dam project on the Danube, was taken to the International Court of Justice (ICJ). The ICJ ruled in 1997 that both parties had breached aspects of their treaty obligations and urged cooperative implementation. Though slow, the resolution process underscored the importance of legal frameworks over unilateral action. Another example is the Mekong river dispute in Southeast Asia. Countries like Laos, Cambodia, Vietnam, and Thailand share this crucial river, and tensions have flared over hydropower projects. Yet the Mekong River Commission, a multilateral framework for dialogue, has helped avert conflict through transparency and data-sharing. In both cases, the central lesson was this: when nations retreat into unilateralism, the result is stalemate or escalation. But when legal and diplomatic channels are preserved, even deeply rooted disputes can be managed — if not fully resolved. What are the risks of withdrawing from the IWT? Unilaterally withdrawing from the treaty would likely invite sharp international censure. India's image as a responsible regional power would be undermined, especially at a time when it seeks a greater role in global governance. The World Bank, which served as guarantor to the treaty, would be compelled to intervene diplomatically, if not legally. Such a move could also alarm neighbours in the Himalayan basin, such as Nepal and Bangladesh, who might become vary about any future water cooperation. Legally, the IWT is a binding international treaty. There is no provision for withdrawal. Under the Vienna Convention on the Law of Treaties, unilateral exit is only possible under extreme and narrowly defined circumstances. Moreover, water is not just a strategic asset — it is a basic human right. Using it as an instrument of retaliation raises ethical questions that go beyond borders. Cutting off or even reducing water flow could devastate downstream communities, especially during lean periods. Even in the theatre of national security, collective punishment violates moral norms. India's true strength lies not in weaponising water, but in showcasing its commitment to a rules-based order. What should be done? India has every right to maximise its permitted usage under the IWT, including building hydropower projects within the framework of the treaty. It has already done so in Kishanganga, and is doing so in Ratle —albeit amid legal contestation. But abandoning the treaty would erode legal high ground and may place India on the defensive internationally. The IWT stands as a rare monument to cooperation in an otherwise fractious relationship. It demonstrates that even in adversarial contexts, nations can agree to share what is vital and sacred — water. To undo that would not only undermine decades of diplomacy but also set a dangerous precedent for how natural resources are used — or misused— in conflict zones. In war, not all may be fair, and in love for peace, some things must remain sacred. K. Kannan is Senior Counsel/mediator and a former judge of the Punjab and Haryana High Court.
Business Times
07-05-2025
- Politics
- Business Times
India and Pakistan once again at war but will it go nuclear?
AS IF life were not difficult enough for people of the Indian subcontinent that its two nuclear powers should be again at war with each other. After terrorists killed 26 Indian tourists in a picturesque little resort town in Kashmir last month, Indian Prime Minister Narendra Modi threatened to hunt the 'terrorists and their backers … to the ends of the earth'. He then moved to 'suspend' the Indus Water Treaty, that has stood since 1960 and sets out how water from the Indus River system can be used by both India and Pakistan. It was brokered by the World Bank and has survived three Indo-Pakistan wars. The suspension sparked a fierce reaction from Islamabad. Pakistan is downstream in the river system but the water accounts for no less than 80 per cent of the country's farm irrigation water and for its hydroelectric dams. Pakistan has often accused India of diverting water upstream by building weirs and dams. India has always denied doing any such thing. This time Islamabad duly proclaimed that any move to stop the flow of water would constitute an 'act of war'. A Pakistani minister then warned: If they (India) stop water, they should be ready for war. Ghori, Shaheen and Ghaznavi (Pakistan's missile systems) are not for display. We have kept them for India. We have not kept 130 atomic weapons for a showpiece.' The water treaty has provisions for dispute resolution and sets forth distinct procedures to handle issues which may arise: 'Questions' are handled by the commission in which both sides are represented. 'Differences' are to be resolved by a neutral expert; and 'Disputes' are to be referred to an ad hoc arbitral tribunal called the 'Court of Arbitration'. Modi seems to have put this framework in abeyance. On Wednesday (May 7), Delhi ordered air and missile strikes and Pakistan responded with artillery fire. Indian state authorities have been told to prepare for war. The last time India conducted such a nationwide exercise was during the 1971 India-Pakistan war, which led to the birth of Bangladesh. But that was before both sides acquired nuclear weapons. So, will this particular round of chest thumping and military action lead to a nuclear war? Nuclear weapons theorists opined at the time when the two sides tested their weapons in 1998 that nuclear weapons could, counter-intuitively, prove to be a check on full-scale wars. Kashmir will always be an intractable problem. Delhi and Islamabad both claim Kashmir in its entirety. Neither side can give up its claim to the whole state even if the reality is that each controls only a portion – places recognised internationally as either 'Indian-administered Kashmir' or 'Pakistan-administered Kashmir'. Both Pakistan and India fear that any concession will trigger a cascade of other regions wanting to go their own way. This idea of having no good options while being compelled to act is something that has haunted decision-makers since independence. At the same time, both sides are pandering to their domestic constituencies and cannot be seen to be backing down in the face of threats and attacks from the other side. Escalation, both in rhetoric and in military skirmishes, can take on a momentum of its own. Ask any historian of World War I. One-upmanship on both sides has locked them into their current trajectory. The world can only hope that those nuclear weapons theorists are right.
Indian Express
06-05-2025
- Politics
- Indian Express
Opinion Indus Water Treaty has been unfair to India. Delhi should abrogate it
Pakistan defends the Indus Waters Treaty (IWT) ferociously, and for good reason. It had exploited its alliance with the US to the hilt to get India to sign it. In international circles, the treaty is cited as an outstanding example of river water sharing because of its scale and the hostility between the signatories. But the IWT was not about sharing river waters — it was about partitioning the rivers of northwestern India, giving Pakistan near-full rights to the waters of the three rivers in Jammu and Kashmir. The IWT claimed 'to attain the most… satisfactory utilisation of the waters of the Indus system' and provided for data exchange, cooperation and a bilateral Permanent Indus Commission for resolution of issues. But Pakistan was not interested in cooperation. What mattered to it was preventing India from exercising its limited rights to the J&K rivers. Broadly, the treaty gave India full access to the waters on the 'eastern' rivers — Ravi, Beas and Sutlej. The waters of the 'western' rivers — Indus, Jhelum and Chenab — were given to Pakistan, but India was allowed some use for agriculture, and run-of-river dams for hydroelectricity with limited storage. On the face of it, this seemed an equitable distribution. But the three western rivers had 80 per cent of the water — despite the fact that 39 per cent of the Indus Basin is in India. Pakistan has 47 per cent. The remainder is with China (Tibet) and Afghanistan, which are not parties to the IWT. The treaty gave Pakistan the right to inspect any construction by India on the rivers in J&K and invoke one of the two dispute settlement processes — a Neutral Expert or a Court of Arbitration. The World Bank became the treaty's custodian with the power to appoint adjudicators. India also agreed to pay 62 million pounds to Pakistan for building link canals to switch from the eastern to the western rivers. An amusing provision was that the people authorised to nominate the arbitrators included the president of MIT and the rector of London's Imperial College of Science and Technology. The World Bank, which had started work on the treaty in 1952, succeeded when it got the US, UK, Canada, West Germany, Australia and New Zealand to underwrite a development fund of $1 billion for the construction of dams and irrigation networks in both countries. Pakistan got an additional $315 million. The Bank funded dams in both countries. When the IWT was signed, the process of codifying international law on the issue had not started. The international customary law, such as it was at the time, was disputed — upper riparians claimed sovereign rights over their waters and lower riparians demanded unimpeded flow. The codification of the law on sharing river waters was set in motion by the UN General Assembly in 1970 when it tasked the International Law Commission to draft one on the non-navigational uses of international watercourses. Progress was slow. An initial draft had declared rivers as a 'shared natural resource'. This was opposed by many countries and it eventually settled on a less ambitious formulation calling on countries to develop and share their rivers in 'an equitable and reasonable manner'. The ILC completed its task in 1994 and the UNGA adopted the watercourses convention in 1997, with 103 countries voting in favour. China, Turkey and Burundi voted against it. India abstained, as did Pakistan. The treaty came into force in 2014, but only 43 countries have ratified it so far. India, China and Pakistan are not among them. Sixty-five years on, the IWT remains well ahead of the evolution of international law. Its most unreasonable provision is the absence of an exit clause or expiry date. The Columbia River Treaty between the US and Canada, signed in 1961, is also permanent, but since 2024, it has a provision allowing either country to withdraw after giving a 10-year notice. Even the Vienna Convention of the Law of Treaties provides for the termination of a treaty if there are fundamental changes in circumstances. It's difficult to find any other example of an upper riparian giving the kind of rights India has. Pakistan's friend, Turkey, refuses to enter into an agreement with Syria and Iraq, the lower riparians of the Tigris and Euphrates rivers. China too has no agreements with downstream countries in South and Southeast Asia on sharing the waters of Tibet's rivers. Despite getting a good deal, Pakistan's approach to the IWT has been anything but cooperative. It has raised objections to every project conceived by India in J&K. In the 1970s, it disputed the Salal Hydroelectric Project on the Chenab. India was unwilling to invoke the dispute settlement mechanism and, in 1978, accepted Pakistan's design changes. The dam was completed but its efficiency got impaired due to siltation. India started the Tulbul Navigation Project in 1984 but it remains incomplete due to Pakistan's objections. When work started on the Baglihar project in 1999, India refused to remove the gated spillway, essential for desiltation, and let Pakistan take it to a Neutral Expert in 2005. Raymond Lafitte, the Swiss Neutral Expert, upheld the spillway, but allowed some minor design changes. The response in Pakistan was hostile, and there were calls for abrogating the treaty. When the Kishanganga project started, Pakistan asked for a Court of Arbitration, which upheld the project with some design changes. Pakistan then raised questions about the design of the Kishanganga and Ratle hydel projects and the World Bank appointed a Neutral Expert. Pakistan also asked for a Court of Arbitration. The Bank initially resisted the idea since it could lead to contradictory decisions, but it eventually gave in. India, however, refused to participate in the arbitration proceedings and insisted that the Permanent Indus Commission should meet to modify the treaty to address the anomalies. In the absence of a positive response from Pakistan, the Commission has not met since May 2022. India has now declared that it will keep the treaty in abeyance. This only gives temporary relief. It will have to remove any construction it does in this period when the treaty is reactivated if found to be in violation. The real issue is the unfairly high share of the water to Pakistan, which can only be corrected by a full-scale revision of the treaty. Pakistan's reaction will be equally hostile to both steps. India may as well strengthen its hand by abrogating the treaty.
NDTV
05-05-2025
- Politics
- NDTV
India's Water Warning To Pak As It Blocks Flow Through Jammu Dam On Chenab
Srinagar: Following its decision to suspend the Indus Water Treaty in retaliation for the Pahalgam terror attack, India briefly stopped water flow through the Baglihar dam on the Chenab river. According to reports, the Centre is planning similar steps on the Kishanganga Dam on the Jhelum. This move is temporary as the Baglihar dam has been built in line with the Indus Waters Treaty and can hold a limited volume of water after which it must release it. But coming amid bilateral tensions in the wake of the terror attack, it is clearly a warning sign for Islamabad. The Chenab and Jhelum, on which the Baglihar and Kishanganga dams are built, are "western rivers" and, according to the waters treaty, Pakistan is entitled to their unrestricted use. India can only use the waters of these rivers for agricultural use, hydroelectric power generation, or any other form of non-consumptive use. The Baglihar project is a run-of-the-river power project in Jammu and Kashmir's Ramban district. A run-of-the-river project has little or no water storage. The project currently generates 900 MW of hydroelectricity. The project's first phase was completed in 2008 and the second in 2015. The Kishanganga project, also a run-of-the-river project, is located in Bandipore and has a 330 MW capacity. Pakistan had objected to both these projects, alleging that the designs and parameters violated the waters treaty. It said that Baglihar dam's parameters would give India a strategic advantage during conflict. After several rounds of talks did not yield an agreement on Baglihar, Pakistan flagged its objections to the World Bank, a signatory to the Indus Waters Treaty. A World Bank-appointed expert upheld some of Pakistan's objections, but rejected its concerns on the dam's height and gated control of the spillway. In the Kishanganga project, too, Pakistan raised objections and said India was not permitted to divert waters from one tributary to another. Islamabad went to the World Bank and a Court of Arbitration ruled in New Delhi's favour. India's move to stop water is temporary because the Baglihar dam can only hold water to a certain height. Once that is met, India must release water. The only way to stop water for longer durations is to increase the dam's height, which would not happen overnight. Pakistan has earlier warned that any move by India to stop water would be considered an act of war and threatened to suspend all bilateral agreements, including the Simla Agreement that validates the Line of Control. Ties between the two neighbours have nosedived in the wake of the heinous terror attack in Pahalgam in which 25 tourists and a Kashmiri were killed in cold blood. Prime Minister Narendra Modi has said there is "grief and rage" over the killings from "Kargil to Kanyakumari". "This attack was not just on innocent tourists; the country's enemies have shown the audacity to attack India's soul," the Prime Minister has said, adding that the terrorists who carried out the attack and those who plotted it would "get a punishment they cannot imagine". Investigation into the shocking terror strike has pointed to the involvement of Pakistan, which has earlier backed several acts of terror on Indian soil.
Scroll.in
05-05-2025
- Politics
- Scroll.in
Indus Water Treaty: Pakistan has few legal options against India
After New Delhi announced that it would hold the Indus Waters Treaty with Pakistan in abeyance in response to the terror attack in Pahalgam on April 22 that left 26 people dead, Islamabad issued a strong counter. It said that it would consider 'any attempt to stop or divert the flow of water belonging to Pakistan…as an Act of War …' Pakistan also said it was exploring legal strategies to keep the waters from India flowing. However, it's clear that Pakistan's options are limited. Detailing the legal strategies available to Pakistan, the country's Minister of State for Law and Justice Aqeel Malik told Reuters that Islamabad could raise the issue at the World Bank, which mediated the treaty. It could also move the Permanent Court of Arbitration or the International Court of Justice in The Hague claiming that India has violated the 1969 Vienna Convention on the Law of Treaties. At the diplomatic level, Pakistan could raise the issue with the United Nations Security Council too, he said. The World Bank, after negotiating the treaty on sharing the water of the Indus River System in 1960, also played a role in settling disagreements between India and Pakistan. For instance, in May 2005, after consultation with the two countries, the World Bank appointed Raymond Lafitte as a 'neutral expert' to settle differences between them over the Baglihar Dam on the Chenab river in India. In 2007, he cleared the project. The World Bank stepped in again in 2022 when a dispute arose about India's Kishenganga and Ratle hydroelectric power plants on the Chenab, both part of the Indus riparian system. India asked for a neutral expert to consider the matter while Pakistan requested the establishment of a Court of Arbitration. The World Bank appointed Michel Lino as a neutral expert and Sean Murphy as chairman of a Court of Arbitration. But India declined to participate in the hearings of the Court of Arbitration. It said that the World Bank's decision to constitute the court contravened the provisions of the Indus Water Treaty. India said that it could not 'be compelled to recognise or participate in illegal and parallel proceedings not envisaged by the Treaty '. So far, India has not formally told the World Bank about its decision to hold the Indus Water Treaty in abeyance. A World Bank spokesperson said that the institution was a 'signatory to the treaty for a limited set of defined tasks' and it does 'not opine on treaty-related sovereign decisions taken by its member countries '. The jurisdiction of the International Court of Justice depends on the consent of member-states and is not an obligation. In September 2019, India's External Affairs Minister S Jaishankar signed a declaration recognising the court's jurisdiction as 'compulsory' with 13 exceptions. Of these exceptions, point number two concerns disputes with 'any State which is or has been a Member of the Commonwealth of Nations '. Pakistan is a member of the Commonwealth. Number 3 is about 'disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India'. For India, Jammu and Kashmir is an internal matter. Number 4 relates to disputes arising from hostilities, armed conflicts, self-defence, resistance to aggression, international obligations, or related actions involving India, including national security and defence measures. This would squarely cover the situation arising from the Pahalgam attack, as far India is concerned. Under number 13, India reserves the right to amend or terminate the declaration after notifying the United Nations secretary general of its decision. Another option Pakistani minister Malik mentioned is raising the matter in the United Nations Security Council. In this case, the most relevant section of the United Nations charter would be Article 35, which says that a member state 'may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly'. Article 34, says that the security council may investigate any dispute or situation that could cause friction or threaten international peace and security. In June 2020, Egypt took a dispute about the Grand Ethiopian Renaissance Dam to the security council under Article 35. The dam on the Blue Nile River in Ethiopia's Benishangul-Gumuz region has led to transboundary water disputes between Ethiopia and its lower riparian countries: Egypt and Sudan. In September 2021, the security council asked the three countries to take forward a negotiation process led by the African Union. At that time, India's deputy permanent representative to the United Nations, said New Delhi's position is that, 'as a general rule, transboundary water issues do not belong to the domain of the Security Council '. It is possible that the UN Security Council may take the water dispute between India and Pakistan more seriously because both sides are nuclear powers and the suspension of the Indus Water Treaty could trigger a fullscale war. Preventing such escalation is key for the security council. In 2022, the five permanent members of the security council had made a joint statement underscoring that they 'consider the avoidance of war between Nuclear Weapon States and the reduction of strategic risks as our foremost responsibilities '. Though lower riparian countries such as Pakistan, in this case, have a right over the shared river waters, cooperation largely depends on the water situation in the upper riparian region, the nature of bilateral relations and the power capabilities of the countries involved. It is not unknown for even unfriendly countries to cooperate on matters that are in their larger interests. The United Nations and the World Bank have played a role in sealing deals between riparian neighbours, but their role largely depends on the global political situation at the time. Though Pakistan could use diplomatic mechanisms to try to resolve India's unilateral suspension of the Indus Water Treaty, legally, Islamabad's hand is weak.
