While the debate over the abrogation of the Indus Waters Treaty (IWT) rages on, with its various nuances, there is so much fogginess over the various facets of the Treaty that a full article is needed to disabuse people about the narratives being propagated – many by Pakistan, but even more by the motivated and/or ignorant Indian commentariat.
This piece is being written with the assumption that the reader has some basic idea of the IWT.
The word abrogation is used for international treaties with a context. There are treaties with an abrogation clause. IWT is not one of them. However, nothing prevents India from withdrawing from the Treaty. Articles 57 to 62 of the Vienna Convention on the Law of Treaties deal with the termination, withdrawal and suspension of treaties.
Article 62 of the Vienna Convention reads thus: FUNDAMENTAL CHANGE OF CIRCUMSTANCES 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) If the treaty establishes a boundary; or (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
However, India has neither signed nor ratified the Vienna Convention, so even the moderately worded provisions do not apply. India can withdraw at will.
International Bank for Reconstruction and Development (IBRD) is included in the definitions section of the IWT, and had a role as a guarantor of the financial arrangements of the IWT. (India had to pay Pound Sterling 62,060,000 to the Indus Development Fund to be maintained by it. Other than that, IBRD had certain powers under Article 10 of IWT (emergency provisions) till 31 March, 1965. So, the World Bank has no role in the Treaty any longer.
China has already built three run-of-the-river dams on Brahmaputra (with work planned on two more) and another one on the Indus near Ngari. The Zangmu dam has an installed capacity of 510 MW at an elevation of 3,100 m - about 200 km upstream of Nyingchi. Incidentally, there is no agriculture possible at that elevation for more than two months in a year.
China has built another small run-of-the-river project on the Indus near Ngari for 14 MW power generation that will be expanded to 28 MW in future. This dam is at a 3,900 m elevation, which cannot support any agriculture at all at any time of the year.
China has done all this over the last 20 years without any talk of IWT being in the air, so it is just an irrelevant bogey. China has done in the past, and will continue to do whatever it thinks to be in its national interest.
The recent news of another dam on a minor tributary of Brahmaputra, Tsiabu Chu (Xiabuxu) must be seen in this light. It carries just 0.15 per cent of the total Brahmaputra flows as said in this article.
As far as the famous bend in the Brahmaputra is concerned, the gorge is 4,000 to 5,000 m deep at places with two 7,000 m plus peaks on each side of the gorge. Even if China wants it, nothing more than a hydel project of 38,000 MW can be built there, which would provide an assured flow of 50,000 to 100,000 cusecs downstream depending upon the hydraulic head. I would prefer this assured downstream flow to anything else China can offer me by way of a treaty. There is no way China can divert this water for agriculture due to the geography.
Thus China has been doing what it wants to do with dams and hydro-power projects on all rivers originating from Tibet – on Upper Mekong and Upper Salwein as well. So IWT issues have no impact on what China is doing and will do. It is totally irrelevant.
India already has a cultivable command of 60,000 hectares in Jammu from Ranbir Canal and Pratap Canal on the left and right banks of Chenab respectively. A parallel canal to Ranbir Canal with a couple of aqueducts and a lift near Kathua to make a Chenab-Ravi link is entirely feasible. Another option is that Baglihar dam to Tawi river requires just a 30-km tunnel. (A 24-km tunnel in the Kishanganga Hydel project and a 38-km tunnel cum channel from the Pandoh dam on the Beas-Sutlej link are a demonstration of capability).
Building a barrage on Tawi and taking the water to Madhopur barrage is child’s play for irrigation technologists today. A 20,000 to 30,000 cusecs channel to augment the Ravi-Beas link is not only feasible, but totally desirable. Another option is to have a 40-km tunnel directly from Ratle dam to RanjitSagar. This option can be exercised if India ever decides to withdraw from the IWT. On Jhelum, dams on Jhelum, Liddar and Sind can considerably increase the present 150,000-hectare agricultural potential of the valley. There is also the possibility of many run of the river hydel projects on Shyok, Zanskar, Suru, Shingo, Drass and the Indus.
In 1974, India withdrew from ICJ for all bilateral matters. India accepts ICJ jurisdiction only in multilateral issues. India has also not signed or ratified the Vienna Convention document on the Law of Treaties in spite of being fully involved in its drafting. This gives India a clear exit route from any bilateral treaty. In spite of Pakistan and our commentariat purveying the falsehood that World Bank is a party to IWT, what matters in the IWT is only the two signatories. That makes it strictly bilateral, and India is at full liberty to withdraw from this bilateral arrangement without giving Pakistan any recourse to ICJ, or to any other world institution including the UN.
This is the greatest canard that has ever been spread. One of the saddest part of independent India has been that we completely forgot the lessons of Partition. Partly the information was deliberately suppressed in the interest of harmony, but not quite so in Pakistan. The very ideology, which led to Partition, has been used to inculcate a permanent hate in the heart of the average Pakistani, particularly the Punjabi.
Partition was based on the theory that Hindus and Muslims were two separate and equal nations. This theory itself has its provenance in the exclusivist Islamic worldview.
While Jinnah was able to achieve a separate nation with not a little help from the British, the doctrine of parity came into stark focus after the Partition. In the end, Pakistan got 17 per cent of India’s territory, 18 per cent of its resources and 30 per cent of its military. Public has been bred on the parity concept resulting in deep insecurities. This has been further accentuated by four defeats which Pakistan denies in their history text books. Add to that the concepts of Shari’a which even the educated middle class of Pakistan believes in (unbelievable). So the Pew Research finds that only 16 per cent Pakistanis think rationally, as 84 per cent believe in the irrational Shari’a Law.
The military creates the bogey of India in order to perpetuate its hold on Pakistan’s resources. It feeds into the Islamic concept of ghazwa-e-hind or the eternal war against the infidel Hindus. Even if India were to concede Kashmir, Pakistan would continue to seek parity and dominance, however irrational it may sound to the bystander. Therefore, it is delusional on the part of any Indian to think that Pakistan’s majority public can ever be friendly. It has been hostile and shall remain hostile till the idea of Pakistan lives. That is why the only way to reconcile is to dismember Pakistan and thus end Pakistan military’s and Punjabi mullahs’ hold on the state(s). It is also idle thinking that there is a deep schism between the civilian government and the military in Pakistan. It is only a skin deep difference of approach of the two entities.
Every self respecting Pakistani hates to hear Indians talk about shared history and culture as it reminds them of their actual roots. When combined with the talk of infidels having no rights except as zimmis as spelt out in the Islamic scriptures, it becomes a deadly cocktail which breeds not only irrational thinking but also a permanent sense of hostility. Even the migrants who went from India to the Land of Pure now know it, so much so that Altaf Hussain openly called for rebellion against Pakistan, and the Sindhis, the Baloch, and the Pashtuns are doing it daily.
It stands to reason, therefore, that there is no love lost for India in the minds of ordinary Pakistanis. So who are the peaceniks appeasing?
Pakistan has been in a mental state of war with India ever since Partition. This is in consonance with its idea of Dar-ul-Islam in the subcontinent with Pakistan as its executant. One of the stories the Muslim League told India’s Muslims used to centre around Muslim’s entitlement to the whole of India, and Pakistan being only the temporary transit point. Jinnah used the threat of civil war to push Partition towards Congress, which believed in a modern progressive country. Many other reasons are the same as explained in the foregoing paragraphs. The war has, therefore, always continued as far as Pakistan is concerned.
As the attack on the RR base at Baramulla shows, and as many experts including American and Pakistanis have said, Kashmir is not the central issue for Pakistan, the very existence of India is their central issue, exactly in the same manner as the very existence of Israel is for the Arabs.
IWT was accepted by Jawaharlal Nehru in the fond belief that it would remove an important element of discord and would promote peace. Fundamentally, it was wrong on the part of Nehru to have accepted the IWT in this form as it practically legitimised the Cease Fire Line as it then existed. Mangla Dam was allowed to be constructed in Pakistan occupied Kashmir (PoK) with India’s concurrence to the IWT. After the 1994 parliamentary resolution that the whole of PoK belongs to India, IWT cannot remain on the statute as it falls foul of that resolution.
Withdrawal from IWT is necessary to press India’s claim on the whole of erstwhile princely state of Jammu and Kashmir . This step would additionally starve the Pakistani military of the resources to carry on the low intensity proxy war it has prosecuted since 1979.
In my opinion, therefore, there is no downside to withdrawal from the Indus Waters Treaty.
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