THE tension relating to water resources held by India has heated up again and Pakistan has complained that India is holding back the waters of rivers flowing from Indian-administered Kashmir.

Some analysts have termed this as a clear violation of the Indus Water Treaty.

In a sense, the availability of less water from the rivers is a security issue for Pakistan as it could put the country's very survival at stake. The media in Pakistan and the general public, too, appear convinced that India is withholding the waters in violation of the Indus Water Treaty. On the other hand, the Indian perception is that Pakistan is assuming that India had restricted the flow, and that this assumption was incorrect as the water level was low the previous year as well.

From a legal point of view, this argument is interesting as it actually raises the issue of jurisdiction and the scope of the Indus Water Treaty itself. The Indus Water Treaty does not deal directly with the issue of water scarcity. In fact, when the treaty (signed in 1960) was being negotiated, a future possibility of water scarcity was not a priority or a leading concern for the negotiators.

Hence, we find that there is no provision per se that provides a mechanism to both the countries if climate-based water scarcity occurs. The critical provisions of the Indus Water Treaty simply say that India and Pakistan were obliged to “let flow” the river waters without interfering.

Hence any obstruction by India would be seen as an outright breach of the treaty by Pakistan.

Despite speculations by the Pakistani side there is no specific evidence brought forth so far that India is actually obstructing the flow or is diverting the waters. The Indian argument remains that reservoirs such as the Wullar Barrage and others are built within the regulatory framework of the treaty itself. Pakistan, naturally, has a different view and in one case Pakistan was seeking third-party resolution through a neutral expert who did not support fully the Pakistani version.

If the Indian version is correct then the issue cannot be addressed within the framework of the Indus Water Treaty and, in that case, Pakistan is pursuing a remedy in the wrong direction.The question remains as to who determines whether the reduced amount of water flowing into the rivers of Pakistan from the Indian side is because of obstructions or on account of climatic water scarcity. For that both countries would need to agree on an independent and a separate framework or neutral experts' assessment. The determination by such a panel would make matters clearer for Pakistani and Indian policymakers who could then follow a bilateral remedial course of action.

The argument is also advanced that even if the water flowing into Pakistani rivers is less due to genuine climatic water scarcity, India cannot escape responsibility as a state to maintain and manage the water resources that it exercises control over. India's responsibility comes under the general framework of international law that calls on the upper riparian state to take the necessary measures to minimise water scarcity.

In Europe and elsewhere, water scarcity has promoted trans-boundary water cooperation instead of inciting war over this issue. The UN Convention on Uses of International Water Courses 1997 obliges states to conserve, manage and protect international water courses. Pakistan and India are not party to the said convention but the latter nevertheless offers a comprehensive framework for trans-boundary water cooperation.

Likewise, the 1992 Convention on Trans-Boundary Water Courses primarily meant for European countries offers another legislative model for India and Pakistan for bilateral cooperation on the issue of handling water scarcity. The 1997 convention is widely viewed as a codification of customary international law with regard to obligations for equitable and legal utilisation, the prevention of significant harm and prior notification of planned measures.

At the moment, India and Pakistan lack a legal medium or forum through which the Indian version of 'genuine water scarcity' could be scrutinised and if found to be correct handled and responded to properly through bilateral action.

If this issue is not handled technically without a legal mechanism, then it has the potential to further aggravate tensions between India and Pakistan as it will be clubbed with the Kashmir dispute. Further, a reduced water flow could be perceived as India's ploy to put additional pressure on Pakistan and, in that event, the response would be equally unmeasured and misdirected.

Finally, whether India is actually blocking the water or the decrease in water flow is due to scarcity and climatic change, needs objective and transparent determination by experts. This determination of the real reason should be agreed to beforehand through a bilateral agreement confined to fact-finding. If the finding is that the reduced flow of water is due to obstructions, then Pakistan could take action under the provisions of the Indus Water Treaty immediately.

On the other hand, if it is determined that there is genuine water scarcity then the issue is outside the jurisdiction of the Indus Water Treaty and needs to be sorted out by both states on a bilateral basis. India, in that case, should undertake its obligations under international law for proper water conservation and management and share the details with Pakistan through a mutually agreed mechanism.

This point may be considered in the India-Pakistan talks as an urgent item.

The writer is an advocate of the Supreme Court of Pakistan and is president of the Research Society of International Law.

ahmersoofi@hotmail.com