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Can India Unilaterally Revoke Indus Waters Treaty With Pakistan? News18 Explains

File Photo of Indus river.

File Photo of Indus river.

This is not something India can do as per the wording of the treaty. What it can do is reduce the water flow to Pakistan by utilising provisions of the treaty. Also, the treaty has no provision for either country to unilaterally walk out of the pact.

New Delhi: Union minister Nitin Gadkari on Thursday said the government had decided to stop “our share of water that used to flow to Pakistan”.

However, in a clarification that came on Friday, the Union minister said he had informed his department to prepare a plan to check “where all can India stop water going to Pakistan, if this kind of behaviour continued.”

The water resources minister made the statement in the wake of the Pulwama incident where 40 CRPF soldiers were killed in a terror attack carried out by an Indian Kashmiri recruit of Jaish-e-Muhammad.

But what the Union minister was referring to here was the Indus Water Treaty, which continues even after several armed conflicts.

News18 looks at the treaty and if at all, it can ever be revoked by India or its possible repercussions:

What is the treaty all about?

It was in 1948 that India had cut off water supply to most canals that went to Pakistan. But it was restored later. Pakistan accuses India of blocking water supply to many of its villages. It was then that World Bank intervened and evolved the water-sharing formula.

The Indus Water Treaty (IWT) is about sharing of water of six rivers — Indus, Chenab, Jhelum, Beas, Ravi and Sutlej — between India and Pakistan.

The water-sharing formula is governed by a treaty the two countries signed in 1960 under the leadership of the then Prime Minister of India, Jawaharlal Nehru, and Pakistan President, Ayub Khan.

The deal was brokered by the World Bank after nine years of negotiation.

Under the treaty, India has control over water flowing in the eastern rivers — Beas, Ravi and Sutlej, while Pakistan has control over the western rivers of Indus, Chenab and Jhelum.

Of the total 168 million acre-feet of the three allotted rivers, India’s share of water is 33 million acre-feet or nearly 20 per cent. India uses nearly 93-94 per cent of its share under the Indus Waters Treaty. The rest of the unutilised water goes to Pakistan.

How does the treaty perform and what is the mechanism?

As per the treaty, the water commissioners of Pakistan and India are required to meet twice a year and arrange technical visits to project sites and critical river head works. Both the sides share details of the water flow and the quantum of water being used under the treaty.

The treaty sets out a mechanism for cooperation and information exchange between the two countries regarding their use of the rivers.

Is it the first time that India has hinted towards a possible instance of stopping the water to Pakistan?

No. It was after the Uri attack in 2016 that India had suspended talks of Indus water commission and fast-tracked water projects to arrest the unutilised water. The three projects include the Shahpur-Kandi dam project, a second Sutlej-Beas link in Punjab and the UJH dam project in Jammu and Kashmir. Gadkari on Friday tweeted about the projects.

Can India stop water flow to Pakistan?

This is not something India can do as per the wording of the treaty. What India can do is reduce the water flow to Pakistan by utilising provisions of the treaty.

But it has to be a project which would affect water flow and it will take time for implementation, considering the cost and objections involved. Pakistan has reportedly objected to five Indian hydro power projects and the Wullar Barrage (Tulbul Navigation Project) which must be settled before India can resume work on any other project.

However, Gadkari wrote on Twitter, “The construction of dam has started at Shahpur- Kandi on Ravi river. Moreover, UJH project will store our share of water for use in J&K and the balance water will flow from 2nd Ravi-BEAS Link to provide water to other basin states.”

Can India cancel the pact unilaterally?

The wording of the treaty has no provision for either country to unilaterally walk out of the pact. Article XII of the IWT says, “The provisions of this Treaty, or, the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments.”

This implies that if India wants to go about abrogating it, the country should abide by the 1969 Vienna convention on the law of treaties.

But what about its legal competence to revoke it?

According to Ahmer Bilal Soofi, former Pakistan law minister, India has no legal competence under the treaty to revoke it per se on its own.

“The IWT is not regime-specific, but rather state-specific. It will not expire with regime change. It is binding on both the states equally and offers no exit provision. Walking away from a treaty is in effect its breach,” Soofi had said to Dawn.

There is a possibility of such India-Pakistan tensions to continue. In such a case should India revoke the bilateral treaty?

At present, India does not have enough facilities to use the excess water that is generated and only with future projects can the additional water be made available to other states other than Pakistan. Further, violating the treaty can also enrage terror elements giving them a reason to plan further attacks.

India also has water treaties with Nepal and Bangladesh. They may also have apprehensions with such treaties looking at the unilateral revocation or diversion of water leading to a breach of the treaty.

A possible water war would also be on the cards which could prove detrimental for India as it is seeking to build a seat for itself at the United Nations Security Council as the country would been seen as a one who has violated a bilateral treaty.

In any event of a possible cancellation of treaty by India, what would be the recourse that could follow?

There exists an arbitration clause in the IWT. It is article IX and annexes F and G which contain detailed procedures about the taking of the grievance by either party under the IWT first to the commission, then to a neutral expert and later to the forum of arbitrators. Under the treaty, if India thinks that Pakistan’s conduct constitutes a dispute under article IX, then it must commence the procedure prescribed under annexes F and G. India cannot itself conclude that Pakistan has breached the treaty on any grounds, including mistrust.

Is India also at the receiving end being at the lower riparian with any other nation? Can such an action lead to violation of International law?

There is a concept of upper riparian and lower riparian. Upper riparian is a place where the river originates and lower riparian is where it ends. Under international law, an upper riparian can never stop the flow of water to the lower riparian.

The Bramhaputra river too originates in China and flows to India. Such a revocation of treaty can also lead to China consider such a possible measure in the near future where it might cite India’s example of what it possibly did to Pakistan.
first published:February 22, 2019, 14:33 IST