Treaty in trouble

 BY S I K A N D E R A . S H A H A N D UZ A I R J. K AYA N I | 10/3/2016 12:00:00 AM
IN the wake of the Uri incident, India has launched a campaign to `punish` Pakistan. The Indian offensive has proceeded swiftly on the diplomatic, political, economic and, as of this writing, militaristic fronts.

An early salvo is India`s aggressive stance on the Indus Waters Treaty (IWT) of 1960. Last week, India said it would increase its water withdrawals from three rivers that flow through India to Pakistan to the maximum levels permitted under the treaty. India is also considering building dams on the Jhelum which flows through the Kashmir Valley before entering Pakistan. Both measures threaten serious economic and humanitarian harm for Pakistan.

India has further claimed it will cease participating in meetings of the Permanent Indus Commission, set up under the IWT, until `terror comes to an end`.

It has decided to indefinitely suspend the regular meetings of the Indus water commissioners of India and Pakistan. Each of these measures is a potential breach of the treaty,and Pakistan should prepareits case for the Permanent Court of Arbitration, should any of these materialise.

The basic elements of such a case are straightforward. First, the IWT does not permit India to unilaterally abrogate its obligations. Such an abrogation would be a material breach, since the treaty has no termination date. Treaties of this kind exist in perpetuity unless rescinded or modified by both parties through mutual consent. Second, Pakistan has approached the World Bank (a party to the treaty) so there is an ongoing dispute or controversy. In the Nicaragua case, the US was not allowed to retract its consent to the International Court of Justice`s jurisdiction once a dispute arose and was being entertained by the court. This was so even though, unlike the IWT, the treaty at issue there allowed the US to withdraw its consent to ICJ jurisdiction.

There is some suggestion that India might justify a breach of the IWT or other actions in bad faith by claiming it is `retaliating` to some supposed misstep by Pakistan. As a threshold matter, there has been no independent inquiry of any such accusation, andcuriously, no interest on India`s part in allowing one.

However, even assuming, for argument`s sake, that such claims were tenable, they would not justify the type of collateral `retaliation` India seems to contemplate. Put simply, two wrongs would not make a right.

International law has parallel obligations, and treaties such as the IWT are self-contained. The breach of one treaty or obligation does not allow the aggrieved state to respond by breaching a different treaty, or other international law principles.

But if India jettisoned the law, it would still need to consider the political and economic fallout. First, the IWT was based on negotiations and compromise.

India should realise that if the IWT were to go away, Pakistan`s claim to the rivers that were given to India (Beas, Ravi and Sutlej) would be revived.

Absent the treaty, Pakistan, as a lower riparian state, would have strong rights on these waters.

Second, the IWT does not exist in a vacuum. By breaching it, India would also likely breach the Shimla Agreement, by going against its `guiding principles`. At a minimum, it would be working against its spirit. A breach of the Shimla pact will likely be costlier for India than Pakistan. It could lead to a chain reaction, with tit-for-tat withdrawals by both countries from operational arrangements and security agreements. Given these states` nuclear capabilities, such an unravelling would pose a significant threat to international peace and security.

Third, aside from Pakistan`s reaction, India should carefully consider its reputational costs in the international community. India has a number of similar treaties with other countries, like Myanmar and Bangladesh. The international community will rightly be concerned by India`s cavalier treatment of it s international law obligations.

Albatrosses notwithstanding, India continues to escalate. It pulled out of the now cancelled Saarc summit and has convened a meeting to discuss stripping Pakistan of its Most Favoured Nation trade status. Modi and External Affairs Minister, Sushma Swaraj have also given back-to-back inflammatory speeches labelling Pakistan a `terror state` or `statesponsor of terrorism.` It is hard to imagine what sort of endgame such cowboy posturing is meant to achieve.

One possibility is that by `retaliating` through planned IWT violations, India is creating a pretext for undermining CPEC. Critical Chinese investments in Gilgit-Baltistan and AJK depend on the river water India now threatens. A salient example is the Neelum-Jhelum hydropower plant. If such a pretext is at play, then India must consider not only Pakistan`s reaction, but Chinese concerns as well.

Just as India is an upper riparian state to Pakistan, China is an upper riparian to India. Any sabotage of the One Belt, One Road project can trigger a reaction from China.

India has also claimed having undertaken `surgical strikes` inside Pakistan. This is a deeply troubling development, and raises the possibility that India could use restricted water supply as a preparatory step for further hostile action. This context adds another dimension of international law. The waters awarded to Pakistan under the IWT are its natural resource. Stopping them or diverting them is a direct breach of Article 2(4) of the UN Charter by India, because it violates the territorial integrity and political independence of Pakistan. Targeting a state`s natural resources, installations, assets, or citizens extraterritorially is a serious violation of international law. Numerous aggrieved states have responded to such violations with force.

A breach of Article 2(4) would trigger Pakistan`s inherent right to self-defence. Pakistan should make good-faith diplomatic and legal efforts to dissuade India from such a course. However, as a last resort, and complying with the requirements of necessity and proportionality under the law of self-defence, Pakistan would be within its rights to use not only `necessary countermeasures`, but also force, to remove any headworks, dams, or other diversionary installations in India-held Kashmir that illegally restrict the flow of these rivers into its territory. • The writers are professors of law and policy at Lums.

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