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Flooded Indus 5th September 2010.
(Image Courtesy: earthobservatory.nasa.gov)
 
The Indus Water Treaty (IWT) was an international treaty and India could not revoke it unilaterally,” stated Sherry Rehman of Pakistan Peoples Party (PPP).
 A Pakistan Government release last month also quoted her as saying that “India had adopted a policy of ‘water terrorism’ against Pakistan”. The propaganda release is headlined ‘Stopping of water by India to be considered an act of war: Senators.’ 
Sherry is clever by half. So are many Indian peaceniks and Pak apologists who have flooded the media with warnings and scare-mongering to browbeat Modi Government from tinkering with IWT.
Had they cared to respect blacked-out facts, they would have realized that India has a genuine case to rescind archaic IWT, which was signed in September 1960. This would become crystal-clear later in this column. 
The first fact that Sherry and her ilk have not disclosed is that their contention against unilateral revocation is hypocritical. This same contention was once made by India’s first Prime Minister, Jawaharlal Nehru, when Pakistan backtracked.  
An agreement between two parties could not be abrogated by unilateral action,” he stated on 8th July 1954 while referring to IWT precursor, Inter-Dominion Agreement (IDA) on Punjab Canal Waters dated 4th May 1948. It provided reasonable framework for resolving canal water dispute between West Punjab (Pakistan) and East Punjab (India). 
United Nations Secretariat (UNS) registered IDA in its treaties record on 10th May 1950 in accordance with Article 102 of the UN Charter. Later, Pakistan told UNS that IDA has ceased to be effective and it has already given a formal notice for IDA’s termination. India countered this by telling UNS that Pakistan has been informed of India's inability to accept any unilateral repudiation of IDA. Both these certified statements were registered by UNS.
As put by the then Minister for Irrigation & Power Hafiz Mohammad Ibrahimin in Rajya Sabha in September 1958, “As far as the Government of India are concerned, the Agreement is in operation. It is the only basis under which Pakistan canals are being supplied with water through works in Indian Territory.” 
The 2nd basic fact is that neither IDA nor IWT are international agreements. These are bilateral pacts. The relevant international agreement is: ‘Convention on the Law of the Non-navigational Uses of International Watercourses 1997’. Ironically, both Pakistan and India abstained from voting on this UN convention on watercourses (UNWC). More important is the fact that China, which is uppermost Riparian State (nation) with respect IWT voted against UNWC in UN General Assembly when it came up for adoption on 21st May 1997. UNWC came into force only on 17th August 2014.  
India should embrace UNWC and serve a notice for termination of IWT. One of the grounds for IWT termination should be that it is totally misaligned with UNWC. The latter has listed population as one of the seven factors that should be considered while working out equitable and reasonable utilization of water among the States through which the river flows. India’s burgeoning population was mysteriously overlooked. The word ‘population’ does not find mention in IWT. 
It is here pertinent to quote a Strategic Analysis Paper on IWT published by an Australian institute, Future Directions International (FDI) in October 2015. The Paper says: “A revised treaty would take population, climatic and environmental factors into greater consideration. In order to revise the treaty, however, a spirit of goodwill and common purpose needs to exist between India and Pakistan. Without that, building upon or altering the existing treaty will prove challenging, if not impossible.”
The foremost consideration in reformulating IWT should be allocation of river waters between two countries the basis of their respective population. After computing water share of each country on per capita basis, the operational flexibility about supply of water from six rivers can be worked out. 
Revised/new water treaty or continuation of IWT must be linked to return of Pak-occupied Kashmir (POK) to India. Simultaneously, Pakistan must sign detailed agreement with India guaranteeing no terror, no war and free transit of Indian exports to Afghanistan. Breach of this peace & prosperity pact would result in automatic termination of water treaty.   
India should suspend IWT till Pak-sponsored terror in India is stopped completely. Suspending or abrogating IWT does not mean blocking instantly flow of waters to Pakistan as has been visualized by certain Indian analysts. Suspension means invoking India’s riparian right to use its river waters. 
Suspension period should be utilized to increase irrigated area in Jammu & Kashmir, start work on new canals and inter-linking of Western and Eastern rivers to facilitate flow of water to arid and semi-arid areas.
Prime Minister Narendra Modi should walk the talk on brining IWT waters to Kutch, a demand he made when he was Gujarat Chief Minister. Mr. Modi should also officially articulate his recent quip that “Blood and water cannot flow together.” 
PM’s statement was attributed by the media without identifying official sources and without any official release on outcome of IWT review chaired by Mr. Modi. He should not let India bleed endlessly due to Himalayan blunders committed by successive Congress regimes. 
India should have in fact scrapped IWT during 1965 war in keeping with the globally acknowledged premise that “war ipso facto abrogates treaties.” The abrogation case was cogently made by late I.K. Gujral in Parliament on 10th November 1965.
Participating in a debate on misuse of Indian aid given to Pakistan for setting up replacement canals, Mr. Gujral pointed out that Pakistan used IWT water as “weapon of offence” against India. The former did so by first stopping flow of water in Ichhogil Canal in Pakistan and then releasing it against advancing Indian columns of Army. 
Mr. Gujral posed: “Irrigation water is part of defence. How far are we justified in trying to stick to the agreement when Pakistan has taken the initiative in collapsing these understandings?
India’s anxiousness to appear too good on diplomatic front has backfired time and again. India’s reluctance to undo Nehruvian blunder IWT has made it an object of legal ridicule. 
See what is written in a study captioned ‘The effect of armed conflict on treaties: an examination of practice and doctrine’ published by International Law Commission (ILC) during mid-2005. It noted that there was no effect on IWT and other bilateral treaties in spite of Pakistan's claim that she was at war with India during 1965.
ILC study quoted International Chamber of Commerce as stating “None of the treaties concluded by India and Pakistan before September 1965 seems to have been considered, on either side, as cancelled; at least no contention and no evidence to that effect has been forthcoming from the Defendant. On the contrary, evidence may be found to show that both countries have viewed their treaties as still in force. On the claimant's side, reference was made to the fact that India continued to effect payments to Pakistan under the Indus River Treaty.”
The arbitrator thus “concluded that the absence of treaty abrogation could only mean that Pakistan and India did not, in fact, go to war,” ILC study adds. 
Proponents of Track I, Track II to Track Nth diplomacy should etch in their minds this satire to practice restrain in endless Pappi Jhappi interactions.  
IWT is completely tilted in favour of Pakistan as it has allotted 80% of water of Indus river basin to it. This has been done by allocating three Western rivers of the Basin, viz., The Indus, The Jhelum and The Chenab to Pakistan, excluding existing usage by India and a few other specified exceptions. IWT provides for exclusive use of Eastern Rivers of the Basin, The Sutlej, The Beas and The Ravi, for India with effect from 1 April 1970, by which time Pakistan was required to complete alternative water infrastructure to supply water to canals currently served by these three rivers.
IWT was crafted by US-dominated World Bank. It was virtually thrust on India due to Nehru’s obsession to build a larger than life persona on the global platform to the detriment of national interest.
The US and the World Bank should make public all internal documents to let the world decide whether IWT was an American ploy to bolster Pakistan as quid pro quo for its military allegiance to Uncle Sam. 
This issue should be judged by asking what stopped World Bank or UN from resolving Kashmir dispute as an integral part of IWT. And why Mr. Nehru did not ask for termination of illegal occupation of part of J&K by Pakistan as pre-condition for signing IWT?  
The then World Bank President Eugene R. Black officially stated: “In 1951 I offered the good offices of the Bank in an attempt to find a solution to the dispute, and suggested that the two countries seek to work out together a comprehensive co-operative plan for the use of the waters which would substantially increase the amount of useful water available to both countries. The offer was accepted by the two Governments early in 1952.”
The World Bank not only ensured lion’s share of waters to Pakistan but also cajoled India to pay £62,060,000 (equivalent to $175 million) towards the costs of the canals replacement project in Pakistan. This was a huge amount in the sixties that could have been used to set up several thousand primary healthcare centres in Indian villages.
Nehru regime’s decision to shower this princely sum on Pakistan marked U-turn from earlier position in which Pakistan paid to India for operation and maintenance of headworks of Punjab canals under IDA. 
Indian payment served as icing on IWT cake for Pakistan. The World Bank also brought on IWT boat half a dozen Western countries. It convince them chip in money for multi-component $ 1 billion Indus Basin project.
The Bank’s peace logic for IWT was a ploy to lure Peace-beseecher Nehru. This is obvious from the Bank’s and the West’s failure to penalize Pakistan for waging war against India during 1965. 
The Bank did not scrap Indus project by invoking peace clause of ‘Indus Basin Development Fund Agreement’ dated 19th September 1960.
The Peace clause reads as: “And whereas Australia, Canada, Germany, New Zealand, the United Kingdom, the United States and the Bank, in view of the importance which they attach to a settlement of the Indus Waters problem from the point of view both of the economic development of the area and of the promotion of peace and stability therein, have agreed, as hereinafter set forth, to make a contribution towards the costs of such system of works and also to make such contribution available through the above-mentioned Indus Basin Development Fund.
When the Opposition took Government to task for signing IWT as the country’s second partition, agitated Nehru gave a weird logic for IWT and for Bank’s prime mover role.
He told Lok Sabha on 30th November 1960: “The fact of the matter is, whenever anything is happening between India and Pakistan - any major thing -there have been as the House knows, extraordinary difficulties in even getting simple things solved. For the moment I am not blaming anybody, though people are to blame; but the fact is, in the circumstances, the complexities arising out of the partition, the passions, prejudices, fears and apprehensions, neither side is prepared to loosen its hold to a position. It has happened often. Therefore, the coming in of an outsider sometimes helps. Anyhow, I think coming in of the World Bank has been helpful, as results have shown.”
Notwithstanding, India’s failure to specify sunset clause or exit clause in the event Pakistan waged war on India, Mr. Nehru claimed that Government had taken care of even smallest detail in IWT.
As he put it, “not a comma, not a full stop, has been accepted without the longest argument and the closest attention to each detail.”
Mr. Nehru at the back of his mind harboured an apprehension that IWT might prove to be a self-inflicted shot in India’s foot. This premise can be inferred from his logic of not seeking Parliament’s nod for IWT.
Mr. Nehru stated: “The Constitution and convention lay down that in such agreements, Government has to stake its own judgment, its future, on it. There is no other way. One takes a risk; may be that Government may go wrong. But there is no other way to deal with it.”
He also disputed J&K Chief Minister’s contention that the Centre had not consulted the State before signing IWT. 
If Pakistan can unilaterally abrogate IDA by alleging that India made it sign it under duress, what stops us from stating the fact that we were tricked by World Bank into signing IWT as harbinger of peace in Indian sub-continent. 
As IWT’s broader objective of ensuring peace and stability in the region has not materialized, IWT stands null and void after countless terror attacks on India including its Parliament, which was direct attack on India’s sovereignty
Another ground for abrogating IWT is urgency for India to prevent domestic conflicts over water shortages turning from violent agitations into water wars. 
As put by Administrative Reforms Commission in its 7th report submitted in February 2008, “Water conflicts continue to divide segments of our society....Unless resolved with imagination and understanding, they pose a significant threat to economic growth, social stability and even national unity.”
ILC study has acknowledged the impact of domestic conflicts on bilateral and multilateral treaties. It says: “The most important point to be established is that domestic hostilities can and do affect international treaties.”
Another ground for abrogating IWT is its abuse by Pakistan as tool of economic terror against India especially J&K. Pakistan repeatedly finds fault with IWT-compliant Indian projects in J&K and tries to derail/delay them through international litigation. This has prevented J&K from enhancing its revenue from river waters and creating employment opportunities. 
Yet another ground for abrogating IWT is that it is not compliant with Paris Climate Change agreement.
All this should spur Modi Government to bite IWT bullet for rational allocation of water between India and Pakistan. The Government must realize that IWT abrogation can force Pakistan to abjure terrorism & to hand over Pak-occupied Kashmir to India.
 
Published by taxindiaonline.com on 19th October 2016
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