Scrap the Indus Water Treaty

Dr Bharat Jhunjhunwala
India has imposed 200 percent import duty on goods imported from Pakistan in retaliation to the Pulwama attack. This is not likely to go very far though. Pakistan’s exports to India are barely 1.4 percent of her total exports. Cutting off these imports are not likely to make a major dent on the Pakistan economy.
India’s efforts to push Pakistan into a financial corner is also not working. Pakistan has been able to raise funds from China and Saudi Arabia to tide over her economic problems. The Saudi Crown Prince gave lip service to the need to counter terrorism during his recent visit to India. He did not mention Pakistan’s role in the same which shows his leanings. Even the International Monetary Fund has agreed to consider lending money to help Pakistan tie over her economic difficulties. Our efforts to isolate Pakistan on the economic front will, therefore, come to a naught. Our military options are also limited given that Pakistan too is a nuclear power. This is amply demonstrated by the escalation of cross-border firing from Pakistan after Pulwama. Pakistan knows that India cannot launch a conventional war hence has no hesitation in provoking us.
In this situation we should consider using water as an instrument of war. The total river water available in Pakistan is 145 million acre feet (MAF). Of this the Indus river system provides 113 MAF.India allocated the water of three of these rivers-namely, Indus, Chenab and Jhelum-totaling 80 MAFto Pakistan under the Indus Water Treaty. The balance 33 MAF from Beas, Ravi and Satluj was allocated to India. India, however, was not able to use all of this water allocated to it and was allowing some of it to flow to Pakistan. Water Resources Minister Nitin Gadkari has announced that India is taking steps to stop the flow of her share of waters to Pakistan.
Eighty MAF water flows from India to Pakistan. This is more than one-half of the 145 MAF river water available to Pakistan. This water sustains the agriculture, industries and cities during the eight lean months from November to June.Cutting off this supply of water will create unsurmountable difficulties for Pakistan.
We will have to circumvent the Indus Water Treaty to implement this strategy. The Treaty provides that any change will be made only by mutual agreement; and in the event of a dispute, it will be referred to the World Bank for mediation. Thus we cannot withdraw from the Treaty unilaterally.
There is a way out. We can scrap the Treaty altogether. The Preamble of the Treaty says that India and Pakistan have entered into the Treaty “in a spirit of goodwill and friendship…” This friendshiphas been shattered by Pulwama. Thus the very basis of the Treaty has been eroded.
As said above, the Treaty provides that any modification will be done only by mutual agreement. However, since the very basis of the Treaty has been removed, India would be justified in abrogating the Treaty unilaterally.It is a well-established principle that a law must be interpreted in the light of the Preamble. The Treaty falls if Pakistan works contrary to the principles of goodwill and friendship.
There is no International law that binds India to honour the Treaty. The United Nations has passed a non-binding resolution that an upstream country will take into account the interests of the downstream country in managing its international rivers. But “taking into account” does not mean giving away all the waters of certain rivers to the downstream country. The role of the World Bank is only of mediation. The Bank can make the two parties sit across the table and discuss. The Bank cannot impose its decision on the two countries. The Treaty is silent on the course of action that a country may take if the mediation fails. We can abrogate the mediation clause along with the Treaty as a whole.
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