Weaponizing Water in Kashmir

• 03.04.2022
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• HARJOT KAUR
• SEPTEMBER 10, 2019

Weaponizing Water in Kashmir

India’s legal moves on water put Pakistan on edge

A month after India’s move to exert more direct control over Jammu & Kashmir, the Indian state that occupies part of the larger Kashmir region, the country is also now in a position to exert control – in both illegal and legal ways – over important river waters that Pakistan relies upon to sustain people in cities and its agricultural sector. And India is no stranger to wielding water as a weapon against its nuclear rival.

The legal landscape of a river system

The Indus river system is central to India and Pakistan’s ongoing conflict. Its six freshwater rivers start in the Himalayan mountains and are a major water source for drinking water and agricultural irrigation for the subcontinent. The Indus river system is the only major source of drinking water for Pakistan’s civil population, as well as its only irrigation source for its agricultural sector.

The two nuclear powers jointly appropriate the Indus waters using the Indus Waters Treaty of 1960 (IWT). Under the IWT, India and Pakistan each control three of the six rivers in the tributary. Pakistan utilizes exclusive water use (after limited permitted uses by the other country) of the Indus, Jhelum, and Chenab rivers, while India controls the Sutlej, Beas, and Ravi. Two of Pakistan’s rivers, the Jhelum and Chenab, flow directly through Jammu and Kashmir, the (now former) Indian state that spans a part of the larger Kashmir region split between India, Pakistan, and China. Two of India’s rivers, the Sutlej and Ravi, flow into Pakistan.

The layout of these rivers is critical to understanding the physical advantages that India has on Pakistan’s water. The IWT gives Pakistan physical and legal access to 60 percent of the water in the Indus river system. While India legally controls exclusive water use for three of the six rivers, it physically lies upstream to all six rivers. Crucially, Jammu & Kashmir physically lie upstream of two out of three of Pakistan-controlled rivers. If India were to divert all the upstream river waters within its borders, in violation of the IWT, India could cripple Pakistan’s water and food resources.

Water stress meets religious strife

Two major stressors have pushed India along towards its current position in Jammu & Kashmir. First, India is facing significant water issues throughout the country. Monsoons have become increasingly unpredictable, and are stressing India’s already weak infrastructure. Northern Indian states have suffered from extreme monsoons that are flooding the rivers and weakening the infrastructure. The extreme rainfall also caused dams to exceed their limits – causing authorities to release the dammed water and add millions of liters of water to the deluge, while losing precious irrigation water in the process. In southern India, Chennai faces an ongoing water shortage as a result of poor water management and late monsoons. Meanwhile, extreme monsoons in Kerala have arrived two years in a row, a crisis caused by a mix of weak infrastructure, and poor land use.

The second significant stressor is the subcontinent’s long and bloody history of inter-religious conflict. The re-election of the Hindu nationalist Bharatiya Janata Party has renewed the majority party’s interest in taking control over Jammu & Kashmir, the only Indian state that had a population with a Muslim majority. Notably, these actions have been popular among the electorate; many Indian citizens have supported the idea of creating a Hindu-majority India both through their votes and increased anti-Muslim violence.

India targets Kashmir

With increased water stress, combined with renewed confidence in Hindu nationalism, Indian Prime Minister Narendra Modi set his sights on Kashmir. On August 5, India’s parliament repealed Article 370 and 35A of its Constitution, which effectively revoked Jammu & Kashmir’s special status that provided the state special autonomy over all of its internal affairs. In the week prior, the central government sent 10,000 troops into Jammu & Kashmir, suspended all communications in the state, and forced elected state officials into house arrest. Parliament also passed the Jammu and Kashmir Reorganization Act, which bifurcated Jammu & Kashmir, and gives the central Indian government primary legislative control over these new “union territories”.

This direct occupation likely also provided the Indian central government direct legal authority over the rivers that flow through it. As noted earlier, two of three rivers given to Pakistan for exclusive water use by the IWT flow through the former state of Jammu & Kashmir. Prior to the passage of the Jammu and Kashmir Reorganization Act, the state had the most direct control over the waters that flowed through it, as per its constitutional rights as a state and through its special status. The increased direct authority of the region by the central Indian government – both legal and physical – likely extends to the region’s rivers, including those that flow into Pakistan.

India’s move for water power

India has given mixed signals on whether it will outright renege on its obligations under the IWT. Last month, India decided not to renew a 1989 agreement (separate from the IWT) with Pakistan to share hydrological data of the shared rivers. This agreement, renewed annually, would have required each country to provide yearly reports of the shared rivers’ water levels. Whereas India initiated the agreement in 1989 as an act of goodwill to Pakistan (given that it benefits the most from hydrological data of India’s upstream water access), it suddenly no longer feels compelled to do so. India has repeatedly reassured the public that it does not plan to pull out of the IWT, and thus will still notify Pakistan about “extraordinary discharges and flood flows” as is required.

Certainly, India’s nonrenewal of the 1989 agreement does not inspire confidence that India will meet its legal obligation under the IWT not to exert control over Pakistan-controlled rivers that flow through Jammu & Kashmir. Because most of the tributaries’ headwaters are now located within territories directly controlled (legally and physically) by the central government, India now holds significantly more power over the rivers. If India chooses not to fulfill its obligations under the IWT, it can divert all the river water that runs through Jammu & Kashmir away from Pakistan.

But India does not necessarily need to violate the IWT to exert destructive power over Pakistan’s water. My colleague Jonathan Zasloff discussed this threat during the border skirmishes earlier this year. India currently underutilizes its control over the Sutlej and Beas rivers, allowing some river water to flow into Pakistan. Under the IWT, India could legally divert more water before it reaches Pakistan. Combined with India’s decision to withhold hydrological data from Pakistan, India could legally divert river water that Pakistan depends on without much prior notice. That spells trouble for the people of Pakistan who depend upon an expected amount of river water to flow into their farmlands, since it gives them little time to prepare for a water shortage.

Pakistan’s response

With little water to spare and India exerting more direct control over Kashmir and its waters, Pakistan is getting agitated. Currently the reactions have been largely diplomatic in nature – Pakistani Prime Minister Imran Khan has appealed to the international stage for intervention multiple times, and will address the issue alongside India’s Prime Minister Narendra Modi at the United Nations General Assembly in September.

Khan does not control Pakistan’s military, a job left to Pakistan’s Chief of Army Staff General Qamar Javed Bajwa. While Khan has made overtures for peace and diplomacy on the world stage, Bajwa considers occupation of Kashmir an “unfulfilled agenda” for the completion of Pakistan. Any concerns about reactionary water shortages that may arise from India-Pakistan violence could fall on Bajwa’s deaf ears.

But Bajwa is no warmonger, and he likely recognizes the civilian consequences of India continuing to limit Pakistan’s access to water in response to any military actions pursued by Pakistan. Indeed, both nuclear powers will hesitate to escalate violence that might cause mutually-assured destruction. But Pakistan has a difficult balance to make here, since it’s also wary of letting India gain a strategic advantage in other disputes by holding hostage Pakistan’s main water supply.

Looking forward

Every time India and Pakistan relations intensify, the world holds its breath. It is difficult to predict how Pakistan will respond to India’s increasingly hostile stances on Kashmir, especially given India’s new physical position on Pakistan’s sole water supply. Outright violence between the two countries has not yet broken out, and Khan, Bajwa, and Modi seem uninterested in escalating tensions. But the communications lockdown within Jammu & Kashmir will only last so long – if Pakistan learns that the situation in the region is threatening enough, Bajwa may feel compelled to respond with military force. And, if any type of conflict breaks out in the region, access to water will become one of India’s weapons of choice. The prognosis does not look good.

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 Climate Change, Imran khan, India, indus river system, indus water treaty, international conflict, international environmental law, international law, Jammu and Kashmir, Kashmir, Kashmir conflict, Narendra Modi, Pakistan, qamar javed bajwa, Water, water crisis, water law

Source:https://legal-planet.org/2019/09/10/weaponizing-water-in-kashmir/

Harjot Kaur

UCLA School of Law

Emmett/Frankel Fellow in Environmental Law and Policy

Contact

• : kaur@law.ucla.edu

Harjot Kaur is an Emmett/Frankel Fellow in Environmental Law and Policy at UCLA School of Law for 2018-2020. She was previously a law fellow at Public Employees for Environmental Responsibility, and a law clerk for the Department of Justice in Washington, D.C. Prior to law school, she worked in constituent services for City Councilman Ron Nirenberg in San Antonio, Texas.

Kaur earned her B.A. in political science and communication from Trinity University, and her J.D. from American University Washington College of Law where she was senior editor and symposium editor of the Sustainable Development Law & Policy Brief.

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