About Chellaney

Professor, strategic thinker, author and commentator

Rivers of conflict between India and Pakistan

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Brahma Chellaney, Nikkei Asian Review

20160825Kashmir_article_main_image

Just as the Philippines hauled China before an international arbitral tribunal in The Hague over Beijing’s expansive claims in the South China Sea, Pakistan recently announced its intent to drag India before a similar, specially constituted tribunal in the Dutch city. Pakistan is citing a dispute over the sharing of the waters of the six-river Indus system with India. This is not the first time Pakistan is seeking to initiate such proceedings against its neighbor; nor is it likely to be the last. But it is among the more contentious moves in a long and fraught relationship over water resources. Indeed, seeking international intercession is part of Pakistan’s “water war” strategy against India.

When Pakistan was carved out of India in 1947 as the first Islamic republic of the postcolonial era, the partition left the Indus headwaters on the Indian side of the border but the river basin’s larger segment in the newly-created country. This division armed India with formidable water leverage over Pakistan. Yet, after protracted negotiations, India agreed to what still ranks as the world’s most generous water-sharing pact: The 1960 Indus Waters Treaty reserved for Pakistan the largest three rivers that make up more than four-fifths of the total Indus-system waters.

The treaty, which kept for India just 19.48% of the total waters, is the only inter-country water agreement embodying the doctrine of restricted sovereignty, which compels the upstream nation to forego major uses of a river system for the benefit of the downstream state. By contrast, China, which enjoys unparalleled dominance over cross-border river flows because of its control over the water-rich Tibetan Plateau, has publicly asserted absolute territorial sovereignty over upstream river waters, regardless of the downstream impacts. It thus has not signed a water-sharing treaty with any of its 13 downstream neighbors.

A 2011 report prepared for the U.S. Senate Foreign Relations Committee called the Indus pact “the world’s most successful water treaty” for having withstood wars between India and Pakistan in the decades since it was signed. A more important reason why the pact stands out as the titan among existing international treaties is the unmatched scale of the waters it reserves for the downstream state — over 167 billion cu. meters per year. In comparison, the water allocations in the 1994 Israeli-Jordanian peace treaty are a mere 85 million cu. meters yearly, while Mexico’s share under a 1944 water pact with the U.S. is 1.85 billion cu. meters — 90 times less than Pakistan’s Indus share.

Lack of trust

This background raises two key questions: Why did India leave the bulk of the Indus waters for Pakistan? And why is Pakistan still feuding with India over water? The answers to these questions reveal that when there is a lack of mutual political trust, even a comprehensive water treaty is likely to prove inadequate.

In 1960, at a time of escalating border tensions with China, India sought to trade water for peace with Pakistan by signing the treaty. But the treaty, paradoxically, ended up whetting Pakistan’s desire to gain control of the land — the Indian-administered region of Jammu and Kashmir — through which flowed the three rivers reserved for Pakistani use. With water security becoming synonymous with territorial control in its calculus, Pakistan initiated a surprise war in 1965 to capture Indian Jammu and Kashmir but failed in its mission. (Earlier, in 1948, Pakistan occupied one-third of Jammu and Kashmir and, subsequently, China grabbed one-fifth of the area.)

Over the decades, the disputed Jammu and Kashmir has remained the hub of Pakistan-India tensions. Moreover, the gifting of the river waters of the Indian part of the region to Pakistan by treaty has hampered development there and fostered popular grievance — a situation compounded by a Pakistan-abetted Islamist insurrection. There have been repeated calls in the elected legislature of Indian Jammu and Kashmir for revision or abrogation of the Indus treaty.

India’s belated moves to address the problem of electricity shortages and underdevelopment in its restive part of Jammu and Kashmir by building modestly sized, run-of-river hydropower plants (which use a river’s natural flow energy and elevation drop to produce electricity, without the need for a dam reservoir) have whipped up water nationalism in Pakistan. The treaty, while forbidding India from materially altering transboundary flows, actually permits such projects in India on the Pakistan-earmarked rivers.

In keeping with a principle of customary international water law, the treaty requires India to provide Pakistan with prior notification, including design information, of any new project. Although prior notification does not imply that a project needs the other party’s prior consent, Pakistan has construed the condition as arming it with a veto power over Indian works. It has objected to virtually every Indian project. Its obstruction has delayed Indian projects for years, driving up their costs substantially. Critics see this as part of Pakistan’s strategy to keep unrest in Indian Jammu and Kashmir simmering.

Significantly, the total installed hydropower-generating capacity in operation or under construction in Indian Jammu and Kashmir does not equal the size of a single mega-dam that Pakistan is currently pursuing, such as the 7,000-megawatt Bunji Dam or the 4,500-megawatt Bhasha Dam. Indeed, while railing against India’s run-of-river projects, Pakistan has invited China to build mega-dams in the Pakistani part of Jammu and Kashmir, itself troubled by discontent, including against the growing Chinese footprint there.

History of disputes

Pakistan’s latest decision to seek international arbitration over two Indian projects has followed two other cases in the past decade where it triggered international intervention by invoking the treaty’s conflict-resolution provisions and yet failed to block the Indian works. Treaty provisions permit the establishment of a seven-member arbitral tribunal to resolve a dispute, or the appointment of a neutral expert to settle a disagreement over a hydro-engineering issue. When Pakistan’s minister for defense, water and power, Khawaja Asif, announced on Twitter recently that his country has decided to seek a “full court of arbitration,” most of whose members would be appointed by the World Bank, India contended the move was premature as the treaty-sanctioned bilateral mechanisms had not been utilized first.

Make no mistake: Pakistan, by repeatedly invoking the conflict-resolution provisions to mount political pressure on India, risks undermining a unique treaty. Waging water war by such means carries the danger of a boomerang effect.

Any water treaty’s comparative benefits and burdens should be such that the advantages for each party outweigh the duties and responsibilities, or else the state that sees itself as the loser may fail to comply with its obligations or withdraw from the pact. If India begins to see itself as the loser, viewing the treaty as an albatross around its neck, nothing can save the pact. No international arbitration can address this risk.

When China trashed the recent tribunal ruling that knocked the bottom out of its expansive claims in the South China Sea, it highlighted a much-ignored fact: Major powers rarely accept international arbitration or comply with tribunal rulings. Indeed, arbitration awards often go in favor of smaller states, as India’s own experience shows. For example, an arbitral tribunal in 2014 awarded Bangladesh more than three-quarters of the 25,602 sq. km disputed territory in the Bay of Bengal, even as it left a sizable “gray zone” while delimiting its maritime boundaries with India. Still, India readily accepted the ruling. However, nothing can stop India in the future from emulating the example of, say, China.

To be sure, Pakistan and India face difficult choices on water that demand greater bilateral water cooperation. The Indus treaty was signed in an era when water scarcity was relatively unknown in much of the Indian subcontinent. But today water stress is increasingly haunting the region. In the years ahead, climate change could exacerbate the regional water situation, although currently the glaciers in the western Himalayas — the source of the Indus rivers — are stable and could indeed be growing, in contrast to the accelerated glacial thaw in the eastern Himalayas.

A balance between rights and obligations is at the heart of how to achieve harmonious, rules-based cooperation between co-riparian states. In the Indus basin, however, there is little harmony or collaboration: Pakistan wages a constant propaganda campaign against India’s water hegemony and seeks to “internationalize” every dispute. Yet, in New Delhi’s view, Pakistan wants rights without responsibilities by expecting eternal Indian water munificence, even as its military generals export terrorists to India.

This rancor holds a broader lesson: Festering territorial and other political disputes make meaningful inter-country cooperation on a shared river system difficult, even when a robust treaty is in place.

Brahma Chellaney is the author of “Water, Peace, and War: Confronting the Global Water Crisis” and “Water: Asia’s New Battleground,” which won the Bernard Schwartz Award.

© Nikkei Asian Review, 2016.

Japan’s constitutional reform to propel Asian stability

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Japanese Constitution signing page

Imperial signature and seal on Japan’s U.S.-imposed Constitution

Brahma Chellaney

Peace in Asia demands a proactive Japan. The issue Japan faces today is not whether it should remain pacifist but whether it can afford to stay passive in regional and international affairs. A Japan that is better able to defend itself and to partner with friendly Indo-Pacific countries to forestall a destabilizing power imbalance in Asia would truly become a “proactive contributor to peace.”

Challenge from China
US security interests would be better served by a more confident and secure Japan that assumes greater responsibility for its own defense and for regional security. Further national security reform in Japan, from a legal standpoint, is tied to constitutional reform. These twin reforms will help underpin the central goal of America’s Asia-Pacific strategy — a stable balance of power.
Today, the US faces major new challenges in Asia, given the rise of an increasingly assertive China — best symbolized by Beijing’s rebuff of the international-tribunal ruling that knocked the bottom out of its expansive sovereignty claims in the South China Sea. Indeed, China’s creeping aggression in Asia reflects a “might makes right” strategy designed to extend Chinese control to strategic areas and resources — from the East China Sea to the Himalayas.
The “proactive contribution to peace” is a concept popularized by Prime Minister Shinzo Abe. Despite a big win at the recent upper house election that enables his ruling coalition to propose constitutional revision in the Diet, Prime Minister Abe is treading cautiously due to the strong criticism he faces from the powerful pacifist constituency at home and from China. By drafting and imposing a pacifist Constitution after World War II, the US created the problem that Japan now confronts — a problem that even constrains the overseas activities of the Self-Defense Forces (SDF). America must now seek to be part of the solution so that Japan, in keeping with US interests, plays a proactive role in Asian affairs and does more for its own defense.

Long-Awaited US Expression of Support
The Japanese Constitution suffers from inherent flaws. For example, it defines no head of state, having stripped the Emperor of all but symbolic power. There are also other voices that call for a new Constitution that is anchored in Japan’s own cultural values, political tradition, and national character. The present Constitution, far from reflecting such values, includes phrases and ideas from the 1776 US Independence Declaration and Abraham Lincoln’s 1863 Gettysburg speech, such as life, liberty and human rights.
Take India, another old civilization and deeply rooted democracy like Japan: India’s Constitution is almost as old as Japan’s. But while India has incorporated 100 amendments in its Constitution, Japan has not changed one word in its charter, thanks to its constitutional fundamentalists.
There are strong concerns in Japan over national defense and external security. But only open American support for constitutional reform can make a meaningful difference and help to allay such concerns in Japan. If Japan fails to carry out further reforms of its postwar institutions and policies to meet the new challenges in Asia, it could not only erode its own security but also weaken the role of the US-Japan strategic alliance.

Brahma Chellaney is a professor of strategic studies at Center for Policy Research, New Delhi.

@JINF, 2016.

Securing the Indus treaty

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Brahma Chellaney, The Hindu, August 5, 2016

edit1Water sharing, transparency and collaboration are the pillars on which the unique Indus Waters Treaty was erected in 1960. Islamabad’s recently unveiled intent to haul India again before an international arbitral tribunal is a testament to how water remains a source of discord for Pakistan despite a treaty that is a colossus among existing water-sharing pacts in the world.

In Asia, the vast majority of the 57 transnational river basins have no water-sharing arrangement or any other cooperative mechanism. India, however, has water-sharing treaties with both the countries located downstream to it, Pakistan and Bangladesh. These treaties govern the subcontinent’s two largest rivers, Indus and Ganges. By contrast, China, despite its unrivalled international status as the source of river flows to more than a dozen countries, stands out for not having a single water-sharing arrangement with any co-riparian state.

Significantly, India’s treaties with Pakistan and Bangladesh are the only pacts in Asia with specific water-sharing formulas on cross-border flows. They also set a new principle in international water law. The 1996 Ganges treaty set a new standard by guaranteeing delivery of specific water quantities in the critical dry season.

India’s Indus largesse

The Indus treaty stands out as the world’s most generous water-sharing arrangement by far, in terms of both the sharing ratio (80.52 per cent of the aggregate water flows in the Indus system reserved for Pakistan) and the total volume of basin waters for the downstream state (Pakistan gets 90 times greater volume of water than Mexico’s share under a 1944 pact with the U.S.). It is the first and only treaty that goes beyond water sharing to partitioning rivers. It drew a virtual line on the map of India to split the Indus Basin into upper and lower parts, limiting India’s full sovereignty rights to the lower section and reserving for Pakistan the upper rivers of Jammu and Kashmir — the so-called “western rivers.”

Today, it remains the only inter-country water agreement in the world embodying the doctrine of restricted sovereignty, which seeks to compel an upriver state to defer to the interests of a downstream state. Treaty curbs, for example, obviate any Indian control over the timing or quantum of the Pakistan-earmarked rivers’ trans-boundary flows.

Given that water is J&K’s main natural resource and essential for economic development, the gifting of its river waters to Pakistan by treaty has fostered popular grievance there. The J&K government in 2011 hired an international consultant to assess the State’s cumulative economic losses, estimated to be hundreds of millions of dollars annually, from the treaty-imposed fetters on water utilisation. Demands in the J&K legislature for revision or abrogation of the Indus treaty are growing since a resolution seeking a treaty review was passed in 2003. The backlash from underdevelopment, made worse by a Pakistan-abetted insurrection, has prompted New Delhi to embark on several modestly sized, run-of-the-river hydropower projects in J&K to address chronic electricity shortages.

Pakistan’s obstructionist tactics

Run-of-the-river projects are permitted by the Indus treaty within defined limits. But Pakistan wants no Indian works on the three “western rivers” and seeks international intercession by invoking the treaty’s dispute-settlement provisions, which permit a neutral-expert assessment or the constitution of a seven-member arbitral tribunal. By aiming to deny J&K the limited benefits permissible under the treaty, Pakistan wishes to further its strategy to foment discontent and violence there.

This Pakistani strategy was exemplified in 2010 when it instituted international arbitration proceedings over India’s 330-megawatt hydropower project on a small Indus tributary, the Kishenganga (known as Neelum in Pakistan). It persuaded the arbitral tribunal in 2011 to order India to suspend work on the project. With Indian work suspended, Pakistan ramped up construction of its own three-times-larger, Chinese-aided hydropower plant on the same river so as to stake a priority right on river-water use.

The tribunal’s final ruling in late 2013 represented a setback for India. It allowed India to resume work on the Kishenganga project but with a stiff condition that India ensure a minimum flow of 9 cumecs of water for Pakistan. Prescribing such a minimum flow went beyond the treaty’s terms and the laws of nature.

More importantly, the arbitrators separately delivered a general prohibition against drawdown flushing in all new Indian hydropower projects. In a 2007 decision on the earlier Baglihar case instituted by Pakistan, an international neutral expert held that gated spillways to help flush out silt were consistent with the treaty’s provisions. Yet the arbitrators, disregarding the Baglihar decision and the common international practice of constructing spillway outlets to control silt build-up, issued a prohibition that potentially affects the commercial viability of all future run-of-the-river projects in J&K.

Pakistan’s move to institute new arbitration proceedings over the Kishenganga and Ratle projects is a fresh reminder as to how India’s unparalleled water generosity has engendered unending trouble for it. In 1960, India thought it was trading water for peace by signing the treaty. Within five years of the treaty’s entry into force, Pakistan launched a war to grab the Indian part of J&K in 1965.

Today, Pakistan’s water relationship with India is becoming murkier due to China’s construction of dams in Pakistan-held Kashmir. While railing against India’s small-sized projects, Pakistan is pursuing mega-dams, such as the 7,000-megawatt Bunji Dam and the 4,500-megawatt Bhasha Dam. By way of comparison, the biggest dam India has built since Independence is the 2,000-megawatt Tehri project in Uttarakhand.

Onus on Islamabad

What China did recently — publicly trash an arbitral tribunal ruling that found it has no legal or historical basis to claim most of the South China Sea — was not an isolated case: major powers rarely go for international arbitration or accept arbitral tribunal awards.

Pakistan, by waging a constant propaganda battle against India on the waters issue, risks undermining the Indus treaty. And by repeatedly invoking the treaty’s conflict-resolution provisions to bring on international intercession, it risks sending the wrong message to India — that compliance with treaty obligations and arbitration decisions is counterproductive. In the absence of an enforcement mechanism in international law, nothing can stop India from emulating the example of the major powers.

Pakistan insists on rights without responsibilities. In fact, its use of state-reared terrorist groups can be invoked by India, under Article 62 of the Vienna Convention on the Law of Treaties, as constituting reasonable grounds for withdrawal from the Indus treaty. The International Court of Justice has upheld the principle that a treaty may be dissolved by reason of a fundamental change of circumstances.

If Pakistan wishes to preserve the Indus treaty, despite its diminishing returns for India, it will have to strike a balance between its right to keep utilising the bulk of the river system’s waters and a corresponding obligation (enshrined in international law) not to cause “palpable harm” to its co-riparian state by exporting terror.

Brahma Chellaney, the author of Water, Peace, and War: Confronting the Global Water Crisis and Water: Asia’s New Battleground, is with the Centre for Policy Research.

The Arab World’s Water Insecurity

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By , a column internationally syndicated by Project Syndicate

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(Palestinian children in Gaza fetch water from a container. Photo credit: Reuters)

Nowhere is freshwater scarcer than in the Arab world. The region is home to most of the world’s poorest states or territories in terms of water resources, including Bahrain, Djibouti, Gaza, Jordan, Kuwait, Libya, Qatar, Saudi Arabia, and the United Arab Emirates. This shortage – exacerbated by exploding populations, depletion and degradation of natural ecosystems, and popular discontent – is casting a shadow over these countries’ future.

There is no shortage of challenges facing the Arab world. Given that many Arab states are modern constructs invented by departing colonial powers, and therefore lack cohesive historical identities, their state structures often lack strong foundations. Add to that external and internal pressures – including from surging Islamism, civil wars, and mass migration from conflict zones – and the future of several Arab countries appears uncertain.

What few seem to recognize is how water scarcity contributes to this cycle of violence. One key trigger of the Arab Spring uprisings – rising food prices – was directly connected to the region’s worsening water crisis. Water also fuels tensions between countries. Saudi Arabia and Jordan, for example, are engaged in a silent race to pump the al-Disi aquifer, which they share.

Water can even be wielded as a weapon. In Syria, the Islamic State has seized control of the upstream basins of the two main rivers, the Tigris and the Euphrates. The fact that nearly half of all Arabs depend on freshwater inflows from non-Arab countries, including Turkey and the upstream states on the Nile River, may serve to exacerbate water insecurity further.

Sky-high fertility rates are another source of stress. According to a United Nationsreport, average annual water availability in the Arab world could fall to 460 cubic metersper capita – less than half the water-poverty threshold of 1,000 cubic meters. In this scenario, water extraction will become even more unsustainable than it already is, with already-limited stores depleted faster than ever – a situation that could fuel further turmoil.

Finally, many countries offer subsidies on water, not to mention gasoline and food, in an effort to “buy” social peace. But such subsidies encourage profligate practices, accelerating water-resource depletion and environmental degradation.

In short, the Arab world is increasingly trapped in a vicious cycle. Environmental, demographic, and economic pressures aggravate water scarcity, and the resulting unemployment and insecurity fuels social unrest, political turmoil, and extremism. Governments respond with increased subsidies on water and other resources, deepening the environmental challenges that exacerbate scarcity and lead to unrest.

Urgent action is needed to break the cycle. For starters, countries should phase out the production of water-intensive crops. Grains, oilseeds, and beef should be imported from water-rich countries, where they can be produced more efficiently and sustainably.

For the crops that Arab countries continue to produce, the introduction of more advanced technologies and best practices from around the world could help to reduce water use. Membrane and distillation technologies can be used to purify degraded or contaminated water, reclaim wastewater, and desalinate brackish or ocean water. Highly efficient drip irrigation can boost the region’s fruit and vegetable production, without excessive water use.

Another important step would be to expand and strengthen water infrastructure to address seasonal imbalances in water availability, make distribution more efficient, and harvest rainwater, thereby opening up an additional source of supply. Jordan, with Israeli collaboration and European Union aid, is creating a Red Sea-Dead Sea pipeline, a conduit that would desalinate Red Sea water, in order to provide potable water to Jordan, Israel, and the Palestinian territories, and then funnel the brine to the dying Dead Sea.

Improved water management is also crucial. One way to achieve this is to price water more appropriately, which would create an incentive to prevent wastage and conserve supplies. While subsidies need not be eliminated completely, they should be targeted at smaller-scale farmers or other high-need workers and redesigned so that they, too, provide incentives for water conservation and efficiency.

Of course, wealthier, more stable countries like Saudi Arabia, Qatar, Kuwait, and the UAE are better placed than conflict-torn countries like Yemen, Libya, and Iraq to address the rapidly intensifying water crisis they face. But, in order to break the cycle of violence and insecurity, all countries will ultimately have to step up to improve water management and protect ecosystems. Otherwise, their water woes – along with internal unrest – will only worsen.

© Project Syndicate, 2016.

Mirage of a rules-based order

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BY BRAHMA CHELLANEY, The Japan Times, July 26, 2016

downloadIs the world governed by international law? The attitudes of the world’s two demographic titans, China and India, on international law are a study in contrast, underscoring that compliance with or defiance of rules is often driven by power dynamics and state character.

Consider China’s brazen refusal to respect the recent, legally binding ruling of an international arbitral tribunal that knocked the bottom out of its expansive claims in the South China Sea. Beijing has poured scorn on the ruling, calling it “a farce” and “naturally null and void,” and saying it deserved to be “dumped in garbage.” The choice insults belie China’s loss of face internationally.

Yet, to bring Beijing to heel, there is little that the international community can do — other than punitively restrict imports from China, which no country is willing to do.

China’s open disdain for the verdict stands in sharp contrast with India’s ready acceptance of adverse rulings by international arbitral tribunals between 2013 and 2016 in three separate cases.

One case, initiated by Bangladesh, involved a maritime boundary dispute in the Bay of Bengal. A second case, instituted by Pakistan, related to the Indus Waters Treaty and centered on its challenge to India’s small, 330-megawatt Kishenganga hydropower plant. The third case was filed by Italy over India’s initiation of criminal proceedings against two Italian marines, who were arrested in 2012 for allegedly killing two unarmed Indian fishermen by opening fire from their oil tanker, less than 21 nautical miles off the Indian coast.

In all the three cases against India, the tribunals — just like the tribunal in the South China Sea case against China that was filed by the Philippines — were established under the Permanent Court of Arbitration at The Hague.

India, despite apparent flaws in the rulings, deferentially agreed to comply with the verdicts, thereby underscoring that it lacks China’s power and political will to stage any act of defiance.

Take the Bay of Bengal case, which went largely in Bangladesh’s favor. The arbitral tribunal, in its July 2014 decision, delimited the two countries’ territorial sea, exclusive economic zone and continental shelf, including the area beyond the EEZ of 200 nm. This case ranked as one of the first two in which the extended continental shelf beyond 200 nm was delimited by an arbitral tribunal without waiting for the essential recommendations from the Commission on the Limits of the Continental Shelf (CLCS), which was established under the United Nations Convention on the Law of the Sea (UNCLOS) to define the outer limits of nations’ seabed territory.

In delimiting the boundary between Bangladesh and India, the five-member tribunal left a sizable “gray zone,” which lies beyond Bangladesh’s limit of 200 nautical miles. The gray zone was one of the reasons the delimitation decision was not unanimous. The dissenting arbitrator found the majority’s reasoning unsatisfactory and its delimitation decision arbitrary.

Indeed, two distinct gray areas have emerged in the Bay of Bengal — one where Indian and Bangladeshi territorial control overlaps, and the other with overlapping claims of India, Bangladesh and Myanmar. This is because the gray zone that resulted from the final delimitation line between India and Bangladesh partially overlaps a gray area that emerged from another tribunal’s earlier delimitation of the Myanmar-Bangladesh line in 2012.

Such gray areas are zones of potential conflict. Yet India — which voluntarily went for arbitration, something major powers rarely do — promptly welcomed the ruling, which awarded Bangladesh more than three-quarters of the 25,602-sq.-km disputed territory. The tribunal actually went beyond established jurisprudence to uphold Bangladesh’s contention that the concavity of its coastline necessitated “special circumstances” in the application of UNCLOS to the determination of its maritime boundaries.

Now consider the Indus ruling, delivered in late 2013: The verdict went beyond Pakistan’s challenge to the Kishenganga project (which was allowed to proceed with conditions); the tribunal delivered a general prohibition against drawdown flushing in all new Indian hydropower projects. This potentially affects the economic viability of all future Indian projects on the Indus River and its tributaries in Indian-administered Kashmir: Without the use of drawdown flushing, silt would build up in a project, undermining its sustainability.

The paradox is that the 1960 Indus Waters Treaty remains by far the world’s most generous water-sharing pact, under which India has reserved over 80 percent of the basin waters for its regional adversary. Yet Pakistan has waged a constant battle to keep India on the defensive on the waters issue, including through propaganda and by invoking the treaty’s conflict-resolution procedures, which allow international arbitration or neutral-expert assessment.

Had China been in India’s place, would it have put up with this? It would likely have dumped the treaty itself.

In fact, India’s unparalleled water generosity to Pakistan has invited unending trouble. Within five years of the Indus treaty’s entry into force, Pakistan launched a major war against India to grab the remaining part of the divided Kashmir in 1965, at a time when India had still not recovered from its humiliating rout in the 1962 war with China. Today, Pakistan expects eternal Indian munificence on water even as its military generals export terror across the border to India and Afghanistan.

The case initiated by Italy, for its part, is odd. Long before Italy filed the case, a considerate India had allowed one of the two accused marines to return to Italy in 2014 after he suffered a stroke. India also permitted the other marine to stay in the Italian ambassador’s residence in New Delhi rather than be in jail. In fact, the high court in the state of Kerala allowed the two, after their arrest, to go to Italy for Christmas in 2012.

The issue currently before the five-member tribunal is whether India, under UNCLOS, has penal jurisdiction over the marines for the double murder in its EEZ. The arbitrators, however, have no power to dictate bail conditions for the accused.

However, the tribunal, in an unusual “provisional measures”  order delivered in April this year over India’s objections, stated: “Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sgt. Girone (the second marine) so as to give effect to the concept of considerations of humanity, so that Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present (UNCLOS) Annex VII arbitration.”

This was not a directive to let Girone return to Italy but an instruction to both sides to cooperate over a possible further relaxation of his bail conditions so that he “may” go home. Yet, with Italy blocking India’s entry into the Missile Technology Control Regime (MTCR) to secure the return of the remaining marine, the Indian government promptly asked its Supreme Court to let Girone go to Italy, and he was allowed to return. Had Indian naval officers, instead of Italian marines, been involved in the incident, they would still be rotting in jail.

Italy showed how leverage can be employed in diplomacy even to influence criminal proceedings in another country. It was only after Girone returned home that Italy ended its extended obstruction to India’s MTCR admission.

Contrast Italy’s exercise of leverage with India’s reluctance to link the future of the Indus treaty to the cessation of Pakistan’s war by terror, or to leverage its ballooning imports from China to help improve Chinese behavior.

Pakistan’s use of state-reared terrorist groups against India can possibly be invoked by New Delhi, under Article 62 of the Vienna Convention on the Law of Treaties, as constituting reasonable grounds for its withdrawal from the Indus treaty. Instead, Pakistan has just announced its intention to drag India before an international arbitral tribunal again over a new Indus treaty-related issue that it wishes to litigate.

Unlike India, which has repeatedly been summoned before the international justice system, the South China Sea case marked the first time for China to be hauled up before an international tribunal. China’s dismissal of the ruling in that case shows that it is willing to absorb the cost to its reputation as long as it maintains and expands its hold on territory and resources in the South China Sea.

In a world in which power respects power and money talks louder than words, reputation can be repaired. China, after all, paid no lasting international costs for gobbling up Tibet, or for causing the death of tens of millions of Chinese during the so-called Great Leap Forward and Cultural Revolution, or for carrying out the Tiananmen Square massacre of pro-democracy demonstrators.

Indeed, as if to underscore that nothing succeeds like aggression, no one today is talking about getting China to vacate the seven reefs and rocks that it has turned into nascent military outposts in the South China Sea after massive land reclamation. Rather, the talk is about finding ways to dissuade it from further expansionary activities.

International law is powerful against the powerless, but powerless against the powerful. The five veto-wielding permanent members of the U.N. Security Council serve as prime examples of a unilateralist approach to international relations.

Like China today, the other four permanent members have refused in the past to comply with rulings from international arbitration or adjudication, including on issues relating to UNCLOS, which was at the center of the South China Sea verdict. The United States has not even ratified UNCLOS, and it rejected a 1980 International Court of Justice verdict directing it to pay reparations to Nicaragua for illegally mining its harbors.

Although globalization has fundamentally transformed economics, politics, cultures and communications, the world has remained the same in one basic aspect — the powerful cite international law to other states, demanding compliance, but ignore it when it comes in their own way. The notion of universal compliance with a rules-based order remains an illusion.

Long-time Japan Times contributor Brahma Chellaney, a geostrategist and author of nine books, is a professor of strategic studies at the New Delhi-based Center for Policy Research and a Richard von Weizsacker Fellow of the Robert Bosch Academy in Berlin. His latest book is “Water, Peace, and War: Confronting the Global Water Crisis.”

© The Japan Times, 2016.

Salvaging the war on terror

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Brahma Chellaney, The Hindustan Times

Hayat Boumeddiene 'appears in Islamic State film' - 06 Feb 2015

The recent upsurge of jihadist attacks from Nice and Istanbul to Medina and Dhaka is a reminder that the global war on terror stands derailed. The use of a truck for perpetrating mass murder in the French Riviera city of Nice shows how a determined jihadist does not need access to technology or even a gun to unleash terror. Terrorists are increasingly employing innovative methods of attack, and all the recent strikes were on ‘soft’ targets.

To bring the war on terror back on track, it has become necessary to initiate a sustained information campaign to discredit the ideology of radical Islam that is fostering “jihad factories” and promoting self-radicalization. Blaming ISIS for the recent strikes, just as most attacks after 9/11 were pinned on Al Qaeda, creates a simplistic narrative that obscures the factors behind the surging Islamist terror.

Attention needs to be focused on the cases where the scourge of jihadism is largely self-inflicted. This will help to highlight the dangers of playing with fire.

Take the growing Islamist attacks in Bangladesh: The country’s military intelligence agency, the Directorate General of Forces Intelligence (DGFI) — like Pakistan’s rogue Inter-Services Intelligence (ISI) — reared jihadist groups for domestic and foreign-policy purposes. During the periods when Bangladesh was under direct or de facto military rule, DGFI was the key instrument to establish control over civil and political affairs and partnered with the National Security Intelligence agency in the sponsorship and patronage of jihadist outfits.

A top U.S. counterterrorism official, Cofer Black, expressed concern way back in 2004 while visiting Dhaka over “the potential utilization of Bangladesh as a platform for international terrorism.”

The cozy ties that security agencies developed over years with jihadists promoting Islamic revolution in Bangladesh has made it difficult for Prime Minister Sheikh Hasina’s government — elected in 2008 — to effectively clamp down on Islamists. The Dhaka café attack by five young men, some with elite backgrounds, highlighted the dangers of the accelerating radicalization in Bangladesh.

Now consider Turkey’s Pakistanization under Recep Tayyip Erdoğan’s leadership: The recent Istanbul Airport attack, which was followed by a failed coup attempt against Erdoğan’s government, was a reminder that Turkey has come full circle. Turkey served as a rear base and transit hub for ISIS fighters. But when ISIS became a potent threat to Western interests, Turkey came under pressure and began tightening its borders. By allowing the US to fly sorties over Syria and Iraq from one of its air bases, Turkey has now incurred the wrath of the group whose rise it aided — ISIS.

Indeed, Turkey’s main opposition leader Kemal Kilicdaroglu earlier accused Erdoğan and his Justice and Development Party earlier this year of trapping the country in “a process of Pakistanization” by proactively “aiding and abetting terrorist organizations” and helping to turn Syria into a new Afghanistan.

Turkey’s increasingly difficult security predicament reflects the maxim: “If you light a fire in your neighbourhood, it will engulf you”.

Take another case: For more than four decades, Saudi Arabia has exported a hyper-conservative and intolerant strain of Islam known as Wahhabism, which has spawned suicide killers by instilling the spirit of martyrdom. Wahhabism is actually the root from which the world’s leading terrorist groups, including ISIS, Al Qaeda, the Taliban and Lashkar-e-Taiba, draw their ideological sustenance.

The monsters that Saudi Arabia helped create have undermined the security of a number of countries, including India. Now those very monsters are beginning to haunt Saudi Arabia’s own security, as the July 4 terror attacks there indicate. This underscores the law of karma: What you give is what you get returned.

According to the analyst Fareed Zakaria, Riyadh “most lavishly and successfully exported its ideology” to Pakistan, where “Saudi-funded madrasas and mosques preach” Wahhabism. Such has been the extent of the Saudi success in “Wahhabizing” Pakistan that the blowback has now reached the Saudi kingdom. Twelve of the 19 people arrested for the triple bombings on July 4 are Pakistani. In one attack, a Pakistani suicide bomber struck outside the U.S. Consulate in Jiddah.

The same day there was an unprecedented attack outside the Medina mosque where Prophet Mohammad is buried, thereby challenging the Saudi monarchy’s claim that only it can protect Islam’s holiest sites. The Prophet’s Mosque is considered to be Islam’s second holiest site after the Sacred Mosque, or Masjid-al-Haram, which surrounds the Kaaba in the city of Mecca.

The cloistered Saudi royals are reaping what they sowed: Having aided ISIS’s rise, they now confront an existential threat from that terrorist organization, which believes that its caliphate project cannot succeed without gaining control of Mecca and Medina. ISIS thus is using Wahhabism to topple the Wahhabism-exporting House of Saud, labelling it as decadent.

The fact that what goes around comes around is apparent also from the recent Orlando attack. The Orlando killer’s jihadist indoctrination can actually be traced to his father who was a local guerrilla commander in the US-backed jihad against Soviet forces in Afghanistan in the 1980s. The father, a CIA asset, was rewarded with permanent residency in America, where the son was born.

Against this grim background, the fight against terrorism demands two main things. The first is finding ways to stop the religious-industrial complexes in the Persian Gulf from funding Muslim extremist groups and madrasas in other countries. The other imperative is for the US and some of its allies, including France, Britain and Turkey, to learn lessons from their role in aiding jihadism through interventionist policies designed to achieve narrow geostrategic objectives.

Jihad cannot be geographically confined to a targeted nation, however distant, as the examples of Libya, Syria and Afghanistan indicate. Nor can terrorism be stemmed if distinctions are drawn between good and bad terrorists, and between those who threaten their security and those who threaten ours. As illustrated by the Turkish, Saudi and Pakistani cases in particular, the viper reared against another country is a viper against oneself and against third countries. As an Indian proverb warns, feeding milk to a cobra doesn’t make it your friend.

Liberal, pluralistic states could come under siege unless the global war on terror is salvaged and concerted efforts are made to drain the terrorism-breeding swamps reared or tolerated by some countries. After all, radical Islam shares a fondness for totalitarianism and targets what it sees as ideologically antithetical — secular, pluralistic states. Never before has there been a greater need for close international cooperation on counterterrorism, intelligence and law enforcement.

Brahma Chellaney is a geostrategist and author.

© The Hindustan Times, 2016.

Ensuring defiant unilateralism is not cost-free

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BY The Japan Times
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China has been expanding its frontiers ever since it came under communist rule in 1949. Yet no country dared to haul it before an international tribunal till the Philippines in 2013 invoked the dispute-settlement mechanism of the United Nations Convention on the Law of the Sea (UNCLOS), thereby setting in motion the arbitration proceedings that this week resulted in the stinging rebuke of China’s expansive claims in the South China Sea.

The trigger for Manila approaching the International Tribunal for the Law of the Sea (ITLOS) was China’s capture in 2012 of Scarborough Shoal, located close to the Philippines but hundreds of miles from China’s coast. ITLOS then set up a five-member tribunal under The Hague-based Permanent Court of Arbitration (PCA) to hear the case.

Despite strenuous Chinese efforts to dismiss and discredit the proceedings from the start, Beijing tried unsuccessfully to persuade the tribunal that it had no jurisdiction to hear the case. Last October, the tribunal said that it was “properly constituted” under UNCLOS, that the Philippines was within its rights in filing the case, and that China’s non-participation in the proceedings was immaterial.

Now in its final verdict delivered unanimously, the tribunal has dismissed Beijing’s claim that it has historic rights to much of the South China Sea and ruled that China was in violation of international law on multiple counts, including damaging the marine environment through its island-building spree and interfering with the rights of others.

The panel effectively declared as illegitimate China’s South China Sea boundary (the so-called nine-dash line).

It also held that China’s strategy of creating artificial islands and claiming sovereignty over them and their surrounding waters had no legal basis. In less than three years, China has built seven islands and militarized several of them in an attempt to annex a strategically crucial corridor through which half of the world’s annual merchant fleet tonnage passes.

In the absence of a mechanism to enforce the ruling, Beijing, however, was quick to pour scorn on the verdict and brazenly declare that it would ignore a legally binding ruling.

Contrast China’s contempt for the landmark verdict with neighboring India’s ready acceptance of adverse rulings in recent years by similar PCA tribunals in two separate cases involving South Asian rows — India’s maritime-boundary dispute with Bangladesh and its Indus River-related dispute with Pakistan over a small dam project at Kishenganga. India deferentially accepted the verdicts and complied with them, although the Kishenganga ruling will affect all future Indian projects on the Indus and the other ruling has left a large “grey area” while delimiting the Bangladesh-India sea borders.

China’s disdain for the ruling shows that international law matters to it only when it can serve its own interests. Otherwise, international rules are bendable and expendable.

To be sure, China has never pretended that it believes in a rules-order order. This was apparent from its aggressive steps to enforce its sovereignty claims in the South China Sea — actions that the tribunal has now ruled violate international law.

Indeed, Beijing has sought to rely on a multinational proclamation that it has flagrantly breached — the Declaration on the Conduct of Parties in the South China Sea, which it signed with the 10ASEAN states in 2002. While violating the declaration’s central commitment — to resolve “disputes by peaceful means, without resorting to the threat or use of force” — Beijing has cited the declaration’s reference to the use of “friendly consultations and negotiations by sovereign states directly concerned” to insist that any dispute can only be addressed bilaterally and not through international arbitration or adjudication.

Dispute settlement by peaceful means is essential to building harmonious interstate relations. However, Beijing’s dismissal of the tribunal’s ruling is in keeping with its broader opposition to settling disputes with its neighbors — from Japan and South Korea to India and tiny Bhutan — by means of international mediation, arbitration or adjudication.

Instead, China’s creeping aggression in Asia reflects a “might is right” strategy that aims to extend Chinese control to strategic areas and resources by altering the status quo. The strategy focuses on a steady progression of steps to create new facts on the ground by confounding and outwitting neighbors while avoiding a confrontation with the United States, which sees itself as a geographically non-resident power in Asia.

Through its furious reaction to the tribunal’s ruling, China is saying that it should be the judge in its own cause. More ominously, it is signaling its determination to stay on the course of unilateralism by settling matters militarily in the resource-rich South China Sea, which is larger than the Mediterranean and carries $5 trillion in annual trade.

The example Beijing is setting will not only be damaging to the law of the sea but is also likely to stoke serious tensions and insecurities in Asia, the world’s economic locomotive.

The South China Sea — a global trade and maritime hub — is critical to the contest for influence in the larger Indo-Pacific region extending from the Arabian Sea to Australia and Canada. As Beijing consolidates its power in the South China Sea by completing ports and airstrips and building up its military assets on man-made islands, the impact of its actions will extend beyond reducing ASEAN states to a tributary status and bringing resources under its tight control: Such consolidation will have a significant bearing on the wider geopolitics, balance of power, and maritime order.

Like-minded states thus must work closely together to defend the law of the sea by ensuring that defiant unilateralism is not cost-free. Unless China is made to realize that its future lies in cooperation and not confrontation, a systemic risk to Asian stability and prosperity is bound to arise, with far-reaching implications for the world.

Brahma Chellaney is a geostrategist and the author, most recently, of “Water, Peace, and War” (Rowman & Littlefield, 2014).

 © The Japan Times, 2016.