Ladakh is the final destination for the Indus River before it enters Pakistan. The Indus River begins its journey high on the Tibetan Plateau. Agriculture, industry, and basic means of subsistence are all supported by its basin in the northern regions of India and Pakistan. In addition, the Sutlej River originates in Tibet.
It then flows into Himachal Pradesh and Punjab in India, and it eventually joins the Indus system in Pakistan. Due to the fact that both rivers convey meltwater from Himalayan glaciers, they are extremely important for irrigation, hydropower, and drinking water consumption. Agricultural communities, river ecosystems, and area economies can be severely impacted by any considerable shift in their flow, which can have devastating consequences further downstream.
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The Infrastructure Projects Conducted by China in Tibet
China has built a number of dams, reservoirs, and diversion tunnels on rivers that originate in Tibet over the course of the last few decades. Installing hydropower facilities is intended to help with both regional development and the nation’s energy requirements. There have been suggestions made to switch the flow of water from rivers that flow westward to locations in northern China that are characterized by aridity.
Despite the fact that some projects are still in the development stage, others are already operational and are causing natural flow patterns to be altered. Concerns have been raised by India and Pakistan regarding the possibility that large-scale diversions or upstream storage projects could restrict the amount of water that is available downstream, particularly during years of low snowfall or drought rates.
Specifically, the Shared River Principles and the Helsinki Rules
Guidelines for the utilization of international rivers are provided by the Helsinki Rules, which were published by the International Law Association in the year 1966. The fact that each riparian state is entitled to a reasonable and equitable amount of water is established by them. This entitlement is based on a variety of considerations, including geography, climate, historical use, and public requirements.
Moreover, the rules impose the need to refrain from causing considerable harm to the states that are located in the basin. In spite of the fact that they are not legally binding treaties, the Helsinki Rules are considered to be rules of customary international law that are universally accepted by governments. Before beginning projects that have the potential to alter downstream flows, they require prior notification, consultation, and negotiation before to starting the project.
Convention on the Watercourses of the United Nations
The Convention on the Law of the Non-Navigational Uses of International Watercourses was adopted by the United Nations in the year 1997. Numerous concepts of the Helsinki Rule are enshrined in this treaty, which makes them legally enforceable for the parties involved. Not only does it promote equitable and reasonable utilization, but it also highlights the obligation to avoid causing severe harm, as well as the requirement to consult and provide information in good faith.
In addition to this, it offers means for the peaceful resolution of disputes. Nevertheless, China has neither signed or approved the agreement, while India and Pakistan have only entered it provisionally. China has not completed either of these steps. Nevertheless, a great number of rules are based on customary international law, which is binding on all governments regardless of whether or not they are members of a treaty.
Constitutional International Law and the Concept of Limited Territorial Sovereignty
When it comes to transboundary waters, customary international law strikes a compromise between territorial sovereignty and obligation to co-riparian regions. The concept of limited territorial sovereignty allows governments that are located upstream to make use of river waters within their own territory, provided that these uses do not have an unreasonable impact on those that are located downstream.
On the other hand, ultimate sovereignty, which provides upstream governments with unrestricted rights, stands in contrast to this. In practice, restricted sovereignty under customary law necessitates that upstream development initiatives take into account downstream interests, avoid causing major harm, and participate in prior notification and consultation.
obligation to avoid causing harm of a significant nature
The principle that a state shall not inflict major harm in other states is a fundamental principle that is embodied in both the Helsinki Rules and the United Nations Watercourses Convention. A decrease in the quantity of water, a decline in the quality of the water, or damage to the environment are all examples of significant injury.
If it is impossible to prevent harm, the state that caused it is obligated to pay the person who was harmed. In the context of the Indus and Sutlej rivers, China’s dams and diversions, which significantly reduce the amount of water flowing during the dry season, might potentially do major damage to the ecosystems and agricultural practices of India and Pakistan.
Obligations Regarding Notification and Consultation
States are required by international water law to provide early notification of any projects that are scheduled to be carried out on shared rivers. Technical information and specifics about the project must to be exchanged in order to facilitate meaningful conversation and collaborative evaluation. The goal is to avoid disagreements and come up with solutions that are agreeable to both parties.
If China intends to carry out significant initiatives on the headwaters of the Indus or Sutlej rivers, it should notify the governments of the downstream areas well in advance. The failure to notify violates both the Helsinki Rules and customary law, which undermines both trust and cooperation that has been established.
Utilization that is both equitable and reasonable
Taking into consideration a number of factors—including geographic contribution, population reliance, existing usage, economic requirements, and other water sources—is necessary in order to arrive at a conclusion that is equitable and reasonable.
India and Pakistan have long-standing usage rights for the Indus basin, which were established by the Indus flows Treaty of 1960. This treaty divides river flows between the two countries, however China is not included in the allocation. In order to be considered equitable, any upstream development that China undertakes must take into account these preexisting rights as well as the hydrological equilibrium of the basin.
stance taken by China in regard to international water law
The Chinese government asserts that water projects within its borders are governed by their own internal legislation. Specifically, it asserts that it has the right to exercise sovereign authority over projects that occur upstream on rivers before they enter other countries.
China’s refusal to ratify the United Nations Watercourses Convention is a clear indication of its unwillingness to comply with external legal restraints. In spite of this, it has participated in bilateral conversations with India regarding the Brahmaputra, and it might also discuss the Indus and Sutlej rivers in a similar manner, which indicates a readiness to consult even in the absence of legally binding treaty requirements.
Concerning the Indus Waters Treaty and Pakistan’s Role in It
China is not a party to the Indus Waters Treaty, which is a bilateral agreement between India and Pakistan that distributes the waters of the major rivers that make up the Indus system. However, despite the fact that it provides a mechanism for the resolution of disputes, neither side can compel China to join or adhere to it.
In international forums, Pakistan, which is highly dependent on the flows of the Indus, may raise objections to Chinese projects by invoking customary law and general principles of equity. For the time being, however, enforcement against China continues to be difficult because China has not consented to multilateral dispute mechanisms.
The Obstacles Facing Enforcement and the Strategies for Diplomacy
The international water law does not have a global enforcement organization that has the authoritative authority to enforce it. A desire on the part of governments to negotiate and find peaceful solutions to conflicts is essential to compliance. Concerns over China’s reputation and its diplomatic connections with India and Pakistan are bargaining points for the Chinese government.
On the condition that China acknowledges its authority, states further downstream have the ability to engage in negotiations, seek mediation from a third party, or bring disputes before the International Court of Justice. In addition to this, they might involve international financial institutions or environmental organizations in order to exert pressure for transparency and equitable distribution of resources.
Concerns Regarding the Environment and the Alterations in Climate
The control of water in the Indus basin is becoming more urgent as a result of climate change. River flows are impacted by factors such as the retreat of glaciers, changes in precipitation patterns, and an increase in the frequency of extreme weather events. It is becoming increasingly vital to have cooperative management in order to respond to the uncertain availability of water.
The only way for upstream projects to provide benefits such as flood control and regulated flows is if they are planned in collaboration with downstream projects. Even while China’s infrastructure on the Tibetan Plateau might be able to help stabilize flows, downstream governments are unable to take advantage of these gains since they do not have access to shared data and cooperative frameworks.
It is anticipated of China, in accordance with the Helsinki Rules and customary international law, that it will use the waters of the Indus and Sutlej in a fair and reasonable manner, that it will avoid causing considerable harm downstream, and that it will notify India and Pakistan and confer with them before undertaking big projects.
Although China has not yet accepted the United Nations Watercourses Convention, these principles are strengthened by the convention. While China continues to exercise its sovereign rights over water resources located within its boundaries, it is also responsible for the water resources of states that are co-riparian with China.
Without China’s involvement in the treaty, downstream countries have significantly less legal options available to them. Therefore, diplomacy, regional discourse, and international engagement are absolutely necessary in order to guarantee equitable distribution and management of these crucial rivers.
