LET THE JHELUM FLOW AS IT IS - RESPECT DAVID LILIENTHAL AND EUGENE BLACK

Current Indo-Pak relations

After the Pathankot and Uri attacks and Pakistan’s continued logistical support to Kashmiri separatism, people are talking about counter measures to make things difficult for Pakistan.  DGMO India announced that they have conducted surgical strikes in Pakistani occupied Kashmir where a group of terrorists were housed by their Pakistani handlers. DGMO India further announced that Indian forces inflicted significant casualties.

The Pakistan government denied the surgical strike but protested about cross border shelling. In addition to the surgical strike; the Union of India, by its relentless diplomatic efforts, managed to educate the world about the Pakistan being the worst victim of terrorism that is of its own making. In fact, now all the SAARC nations have expressed their displeasure by ensuring the cancellation of the SAARC summit in Pakistan. Another group of people led by , Rajiv Chandrasekhar MP ,( Rajyasabha) an accomplished businessman have demanded the immediate cancellation of unilateral grant of MFN status to Pakistan. After all Pakistan has availed GATT ‘security exception’ not to reciprocally grant India Most Favoured Nation Treatment’. The correctness of such a move will be the next topic of my blog, but I will now focus on the reported move to renounced the Indus water treaty and make Pakistan suffer for water.

Indus- Sindhu-Abasin: Whose river is it?

Every elementary student around the world know that INDUS valley nurtured the oldest known human civilization in the world . In terms of size and water discharge the Indus is the 21^st largest river in the world. It runs for 3180 km after originating in Mount Kailash and lake Manasarovar. About 90% of the Indus basin is located in Pakistan. India and China have just 6% and 3 % respectively. Actually it flows through Tibet, Gilgit-Baltistan, Jammu and Kashmir, Khyber Pakhtunkhwa, Punjab, Sindh. After the partition of India and formation of Pakistan, India’s connection with Indus is more historical and emotional than real. We must now recognise that Indus river is a  Pakistan river as it is the longest river of Pakistan. There is historical evidence to show that irrigation canals were first built by the people of the Indus Valley civilisation, and later by engineers of the Kushan and Mughal Emperor. British East India Company introduced modern irrigation methods and supervised the most complex irrigation network comprising of the Guddu barrage and the Sukkur Barrage. The river is crucial for Pakistan because the lower reaches of the river Indus do not receive adequate and regular rainfall. After partition, India had 2 territorial dispute with west Pakistan. One related to the unlawful Pakistani occupation of Kashmir against the wishes of then rulers of Kashmir and another relating to Rann of Kutch.

The next dispute related to the territorial claims in Rann of Kutch.

Ran of Kutch has a connection with the Indus Basin as well. Part of the Indus water discharges itself in the Arabian sea at Rann of Kutch. Both the countries have resolve their Rann of Kutch, territorial dispute by agreeing to share the desert in a 9:1 Ratio (India : Pakistan)  But the Kashmir dispute continues to simmer in such a way that it is threatening to revive the Indus water dispute which was amicably and sensibly resolved way back in 1960.

David Lilienthal and Indus Water Dispute

David Lilienthal, a Harvard educated lawyer and a Former Chairman of Tennessee Valley Authority and International Atomic Energy Commission played the role of a honest mediator between India and Pakistan. David Lilienthal wrote an article in the now extinct magazine Collier. Dispute arose between India and when Jawaharlal Nehru announced his plan to construct modern temples of Industrial India. David Lilienthal noted that half the flow of Indus equals the total flow of Nile and 4 times that of Colorado are wasted in summer months other through evaporation or flow into Arabian sea. He said that the problem was economic and not political. There is water for everybody in the Indus basin. He said that economic problem can have technical and Engineering solutions because engineers around the world speak the same language and agree on things even if it is politically inconvenient for them. On the other hand, the same cannot be said about lawyers and politicians. With the blessings of US state department, David Lilienthal visited India and Pakistan many times and facilitated discussions with the Indian and Pakistani water engineers. He observed that there are eastern rivers and western rivers. Geographically and geologically, India can only use the eastern rivers. He further suggested that India can be given the exclusive right to use the waters of eastern rivers namely Ravi, Beas and Sutlej and Pakistan can be given the exclusive rights to use the waters of western rivers. He also noted that some parts of the Punjab and Sindh which were in the past irrigated by  eastern rivers can easily be irrigated if sufficient link and supply canals are built from western rivers to the lands. It was estimated that it would take about 10 years and 62,060,00 pounds  to complete the work. India agreed to reimburse a part of it remaining came as a soft loan from world Bank, which was then headed by Mr  Eugene Black. Accordingly  Jawaharlal Nehru and General Ayub Khan signed the Indus water treaty in  1960 . In between India and Pakistan fought 2 declared wars besides engaging in 2 serious armed conflicts not amounting to war. Yet neither India nor Pakistan has found serious fault with the implementation and administration of the treaty. True, there were minor hiccups like the Tulbal navigation projects and generation of Hydroelectric power from river Jhelum,Pakistan filed the cases and the arbitrator held in  favour of India. Yet for the first time, the usefulness of Indus water treaty is being questioned by a section of Indian Public. PM Modi famously remarked “water and blood cannot flow together”. This has made   Pakistan bashers in India to incorrectly believe that  India can do something to  stop the   Indus flow thereby throwing substantial part of Pakistan agriculture can be thrown out of gear.

Reasons against repudiation of  Indus Water treaty

a)    Under the Vienna convention of law of treaties, A treaty can be terminated only in accordance with the manner stipulated in the treaty. If the treaty does not provide any method of termination of a treaty, it can only be done by the mutual consent of the state parties to the dispute. Actually, the  Indus water treaty does not stipulate the period for which it will remain in operation. It also does not provide any method for either of the parties to terminate the treaty. India had compensated Pakistan the cost of constructing irrigation canals from western rivers to lands that earlier received waters from Eastern rivers. The World bank provided financial assistance to Pakistan to meet the appraisal costs of these works. Hence unless Pakistan and World Bank agrees , India has no legal right to disrupt the existing legal situation. India can only terminate the Indus water treaty  when the river system itself becomes extinct. India cannot also use the established principle of clausula rebus sic stantibus (fundamental change of circumstances) . It is often said that as per the Indus water treaty Pakistan has got 90% of waters of the River Indus system and India has got just 10 % percent. Actually, it is a very good deal for India considering that not even 3% of the Indus river basin is located in India. The Indus river treaty gives India  exclusive rights over the waters often eastern river Ravi, Beas and Sutlej and certain nonconsumptive rights of use over the waters of Jhelum and Chenab. This is the best situation for India. After construction of the Bhakara Nanagle Dam and the completion of the Indira Gandhi canal, the state of Rajasthan , Punjab and Haryana have received  great economic benefit besides providing  drinking water security to the state of Rajasthan. According to the latest figures, the  Indira Gandhi canal irrigates 6,770 km² (1,670,000 acres) in Jaisalmer district and 37 km² (9,100 acres) in Barmer district. If India is going to repudiate India water treaty will Pakistan have the same rights it had earlier over the eastern rivers? After all, the most elementary principle of contract law demands that if a an entity wants to repudiate a void or voidable agreement, it must restore/ return all the benefits and advantages that it  has received in such contacts. Will India be in a position to give up its benefits the receives in pursuant of the agreement? 

b)   Developments in Science and technology constantly   expands the abilities of humans to aspire to  and achieve things that were in the past considered  impossible. Jhelum and Chenab are the only Pakistani- Indus river that flow through India. These rivers flow mostly in the Himalayan mountain region. Even today, India is unable to fully use the waters of the Jhelum for irrigating the lands in Jammu and Kashmir. The construction of Dams near the point of origin of any river is environmentally unsound as the rate of siltation is more in the mountain terrain.   It is not possible to divert the huge quantities of water that the  Indus river system carries during summer. Hence the cost of diversion of water and putting it to productive use will be many times more than the apparent benefits that the diversion will gain  for India . Hence it is economically suicidal for India to divert the waters of the Jhelum and Chenab. (In other words Indian should not blind their eyes for making Pakistan half blind).

c)   Reaction of the third parties,

As soon as the Indian hawks raised the possible diversion of Indus waters, China quietly put in place a mechanism to divert the waters of the Brahmaputra. At least with Pakistan we are in a better position for sharing our common rivers. With China we do not have such luxury. If India asserts the theory of absolute territorial sovereignty to deal with the waters that flows through it territory in its absolute discretion, then India cannot say that China does not have such a right. In the absence of a treaty China can divert the waters of Brahmaputra. Such changes will not only affect the rights of India but those of Bangladesh and Bhutan. China with its humongous population and ever increasing demand for water and power will also have a compelling need to harness  all the available fresh water sources at its command. Infact, not much of information is available about the Chinese plans and their  impact on the Bay of Bengal and  Himalayan rivers.  Hence, the  Union of India will lose all the moral high ground  that we all believe India currently enjoys in international community if it resorts to abrogation of the Indus Treaty.

d)  Abrogation of Indus treaty and Domestic consequence.

As a law student I believed that India is a unitary state having quasi federal features. Now, the coalition politics compulsions have ensured that India has become a federal state having strong unitary features. If India is a federation, in the matter of sharing Interstate river waters, the principles of international law will apply. On the other hand, if India is a unitary state the central government can have overwhelming powers to divert river waters.  After the passing of the Inter States River Water Disputes Acts and River Board Acts the powers of the union government are  more symbolic than real. Already, the state of Punjab had abrogated many water sharing agreements entered with its neighbours in pursuant of earlier Tribunal Awards. If the union of India can abrogate a treaty unilaterally , then will not such a corresponding rights be  available to the members of a federation under local law. In other words, this will open a Pandora’s  box squabbles over water.

To conclude, in framing Foreign Policy, nations are not guided by ethical, moral and legal considerations; they have interests to protect in these interests foreign relations and policy will be geared to protect these interest. The United Nations has predicted that 90% of the wars in Third millennium will be for water. For Pakistan, the Indus water is very important. Already, Pakistani diplomats have declared that if India abrogates  the Indus treaty that would be tantamount to an act of declaration of war. They are in touch with the World Bank to internationalise the issue. Abrogation of Indus Treaty is not  going to get any great advantage for India. The cost for India will be immense and in fact immeasurable. Hence let’s give up evil temptation. Let’s respect the efforts of  David Lilienthal and Eugene Black.