FEBRUARY 2017 ISSUE NO. 172 The Case Against Weaponising Water PREETY BHOGAL AND KATARZYNA KASZUBSKA ABSTRACT With growing water scarcity across many parts of the world, competition over access to this vital resource has been known to spark conflict. Following the September 2016 Uri attack in India, the government made plans to retaliate against its neighbour by exercising its right to use water of the western riversallocated to Pakistan under the Indus Waters Treatyby building dams, canals and reservoirs. This paper aims to address the legal, economic and social implications of this policy decision. It concludes with an observation that any project India decides to conduct on the transboundary rivers must not only be economically and environmentally feasible, but also comply with India's obligations under customary international law. INTRODUCTION 'Whisky is for drinking; water is for fighting military actions. Water reservoirs have been over'. This maxim, popularly attributed to Mark made targets of terrorist attacks, and have Twain, can be rightly put into context of the become the subject of disputes in the context of current discussions around water resources. economic and social development projects. The The scarcity of water around the world has Institute's Water Conflict Chronology List resulted in competition among its users, and includes nearly 400 known water conflicts1 the history of conflicts over freshwaters is long from the 3rd century BC till 2015.2 Table 1 and distressing. The US-based Pacific Institute shows the growth in reported water conflicts has documented various incidents of tensions between 1980 and 2015. emerging over water from across the globe. According to UN-Water (the UN inter- These cases include those where water had been agency mechanism for water-related issues), used for political goals or as a weapon during various factors contribute to tensions over Observer Research Foundation (ORF) is a public policy think-tank that aims to influence formulation of policies for building a strong and prosperous India. ORF pursues these goals by providing informed and productive inputs, in-depth research and stimulating discussions. The Foundation is supported in its mission by a cross-section of India’s leading public figures, academics and business leaders. To know more about ORF scan this code © 2017 Observer Research Foundation. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from ORF. The Case Against Weaponising Water transboundary watersamong them, water stakeholders, rather than only dividing them. scarcity, dam construction, water abstraction (or The complex relationship between water and the removal of water from its natural conf lict has raised concerns among environment, like rivers, lakes, groundwater policymakers around the globe, particularly in reservoirs), pollution by industry, and violations Asia and Africa. Out of over 80 cases of water of existing legal obligations. There is no end yet conflicts reported in Asia by the Pacific in sight for these tensions, as growing Institute, 58 involved some degree of violence.6 populations, urbanisation, economic One of these was the 2012 militants' attack on development, and climate change all exert the Tulbul Navigation Lock/Wullar Dam tremendous pressure on the world's water construction site in Jammu and Kashmir (J&K) resources.3 Yet at the same time, the vital nature in India. The project is being opposed by of water and the need to safeguard this common Pakistan, which argues that it is not in line with resource has also served as an important the provisions of the Indus Waters Treaty. In incentive for co-riparian countries to cooperate. fact, the treaty itself originated from the severe This is best indicated by the impressive number water conflict between India and Pakistan at the of approximately 300 international water- time of partition, including an incident of sharing treaties negotiated and signed since the cutting off water supplies from India to parts of end of the second World War.4 Also, according to Pakistan in 1948.7 Moreover, a recent survey by the BAR Intensity Scale for positive and negative the US National Aeronautics and Space water-related events from 1948 to 2008 as Administration (NASA), analysing data provided by the International Water Events collected by satellites between 2003 and 2013, Database, the number of documented incidents indicates that Indus Basin is the second most of cooperation over water (77 percent of all overstressed water basin in the world, with its cases), including the signing of water-sharing water levels falling by four to six mm every year.8 treaties, is far greater than that of water To understand the conflict around the Indus conflicts (19 percent).5 The database is compiled Basin between India and Pakistan, it is by the Oregon State University. This indicates important to study the 1960 Indus Waters that water also unites diverging interests of Treaty in detail. Table 1: Number of water conicts reported by the Pacic Institute, 1980 2015 40 35 30 25 20 15 10 5 0 1 1980 1982 1984 1986 1988 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 201 2013 2015 Source: e Pacic Institute 2 ORF ISSUE BRIEF No. 172 • FEBRUARY 2017 The Case Against Weaponising Water THE INDUS WATERS TREATY and options to cause disorder in Pakistan. A range of non-military options, including The Indus Waters Treaty, signed in 1960 abrogating the water treaty with Pakistan, between India's first prime minister, Jawaharlal emerged during the policy discourse. In regard Nehru, and Pakistan's then president, Gen. to the Indus Waters Treaty, the Indian Ayub Khan, provides for the sharing of the six government considered the following two rivers that flow through the Indus basin measures: encompassing certain areas of both Indian and Pakistan territories. According to the 1. Suspend the operations of the Indus arrangement, India has unrestricted access to Waters Commission established under the water of three eastern rivers (Ravi, Beas and treaty to facilitate consultations, Sutlej) whereas the water of western rivers exchange of data and resolve potential (Indus, Jhelum and Chenab) is allocated to disputes.11 Pakistan; India can use the latter only for domestic, non-consumptive, agriculture and 2. Exercise its right to use water of the hydro-power generation purposes. Some western rivers to the maximum by analysts refer to the treaty as one of the most building dams, canals and reservoirs. liberal water-sharing arrangements in the world, given Pakistan's 80.52-percent share in CUSTOMARY LAW OBLIGATIONS ON THE using Indus system waters as against India's USE OF TR AN SNAT IONAL WAT ER share of only 19.48 percent.9 RESOURCES In spite of the treaty, however, tensions between India and Pakistan over these The turbulent global history of the use of waterways have not come to an end. This transboundary waters has led to the emergence includes the 2013 arbitration dispute over of an elaborate legal framework of rights and India's Kishanganga hydro-electricity plant, obligations for co-riparian states. From a legal which confirmed India's right to divert water perspective, no country is allowed to exercise its for the purpose of the project, as well as the rights over transboundary rivers to the recent engagement of the World Bank in the detriment of its neighbours. Even in the outstanding disagreements pertaining to the absence of an international agreement, any construction of the Kishanganga and Rattle project undertaken by India on common rivers hydro-power projects by India. Responding to has to comply with its obligations under the concurrent requests from Pakistan and international customary law (or international India to appoint a new arbitration tribunal or a rules which arise from repeated, uniform and neutral expert, respectively, the World Bank, representative states' practice accepted as law) which plays a procedural role under the Indus on the use of transnational water resources.12 Water Treaty, urged both countries to resolve Further, the Indus Waters Treaty itself specifies their differences through mediation.10 Before that it should be applied and interpreted in line that, in September 2016, the terrorist attacks in with the customary international law.13 In fact, Uri brought the Indus Waters Treaty to the fore. in the 2013 case between India and Pakistan, The attacks killed 18 Indian soldiers and left the arbitration tribunal concluded that while dozens wounded, opening yet again another India was entitled to construct the disputed channel for public debate in India as power-generation project on the Kishanganga/ policymakers and security experts weighed in Neelum River, its right to use the shared waters on the question of how to identify strategies was limited by the constraints specified by the ORF ISSUE BRIEF No. 172 • FEBRUARY 2017 3 The Case Against Weaponising Water Indus Waters Treaty and customar y Resourcesrequire the determination of use of international law.14 common water resources to take into account Although the precise legal content of the factors such as geography of the basin, rules established under the customary law is population dependent on the common rivers difficult to define, the practice of the and its economic and social needs, existing international community and the decisions of utilisation and potential needs in the future. tribunals reinforce the various important These instruments, though not legally binding principles relating to the utilisation of on India, are considered to provide guidance in international rivers. Rejecting the claim of the interpretation of the customary rules. The absolute territorial sovereignty over principle of equitable and reasonable utilisation transboundary water resources, the customary of shared water resources was endorsed by the legal framework revolves predominantly International Court of Justice (ICJ) in the around the principles of equitable utilisation of Gabíkovo-Nagymaros case.16 Adjudicating on the water resources and a duty to prevent the dispute over GabíkovoNagymaros Dam transboundary harm.