by A G Noorani
“The upstream users of an international river are no longer entitled to the unrestricted use of (the waters) of such a river, and are bound, when taking decisions concerning its use, to take reasonable account of the interests of other users in downstream areas.” On Sept 25, 1997, the ICJ gave its imprimatur on the rule in a case between Hungary and Slovakia (concerning the Gabcíkovo-Nagymaros Project), putting it beyond dispute.
Thus, even if the Indus Waters Treaty did not exist, India would not be able to take any of the diversionary measures that official leaks in the media threaten. It reflects legal incompetence, contempt for international morality, and a barbaric outlook.
The court followed an earlier ruling of its predecessor, the Permanent Court of International Justice, in 1929 with regard to the River Oder, which said “the community of interest in a navigable river becomes the basis of common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian state in relation to the others”.
The water treaty is not a weapon to be used for political ends.
Therefore, in its judgement, the ICJ pointedly stated: “Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly. The court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube […] failed to respect the proportionality which is required by international law.”
The law mandates equitable and reasonable shares for all the countries through which an international river runs. In 1895, US attorney general Judson Harmon was asked for an opinion on the rights of the US and Mexico over their shared river, the Rio Grande. US farmers had increasingly begun to divert its waters, significantly reducing its flow to Mexico.
He responded: “The fundamental principle of international law is the absolute sovereignty of every nation as against all others, within its own territory.” He conceded that he had found in support of his view “no precedent or authority which has a direct bearing” and the “case presented is a novel one”. The Harmon Doctrine of absolute territorial sovereignty, which privileged the upper riparian state, died swiftly and was buried by the US supreme court.
East Punjab was therefore ill advised to cut off the water supplies in every canal crossing into Pakistan in April 1948, which ran contrary to the agreement reached by Committee B (one of the committees set up to deal with issues arising from Punjab’s partition) when it stated: “There is no question of varying the authorised shares of water to which the two zones and the various canals are entitled.” Cyril Radcliffe expected that “any agreements […] as to the sharing of waters from these canals will be respected”.
It is unnecessary to trace the tortuous course of events that followed this standstill agreement of May 1948 until the signing of the Indus Waters Treaty in Karachi, on September 1960, by Jawaharlal Nehru, Ayub Khan and W.A.B. Iliff (representing the World Bank) — albeit for specified purposes. As judge Richard Baxter, an expert on international waterways law, noted, the World Bank was not a disinterested presence but one of the parties to what were actually tripartite negotiations. It was, therefore, not a bilateral treaty but a multilateral one — for yet another reason.
On the same day and place, two other agreements were also signed: the Indus Basin Development Fund Agreement by representatives of Pakistan, the US, the UK, Australia, Canada, Germany, New Zealand and the World Bank, and a loan agreement between Pakistan and the World Bank. Enormous sums of money were spent and expensive irrigation works construction was undertaken.
The treaty says that it can be terminated only by another treaty. Article 63 of the Vienna Convention on the Law of Treaties (1980) says: “The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.” Even severance of diplomatic relations does not affect the treaty.
To obstruct the Permanent Indus Commission is to trigger the formation of a court of arbitration (Article IX). The treaty is not a weapon to be used for political ends; it has a long history and is entrenched in international law.
(A Kashmir expert, the author is is a Mumbai based lawyer. This article appeared originally in the Dawn on October 15, 2016)