*Mohan Katarki

(Source: Chat GPT)

With the advent of high dam technology in the 19th century, international law has been called upon to define when weaponisation is permissible or impermissible. The paper briefly examines the historical evolution and analyzes the existing law, lex lata, and the need for legal development, lex ferenda, to propose the restrictive propositions on the weaponization of water.

Water as a Weapon: Is International Law keeping pace?

The historical right of sovereign states to wage war to redress their just grievances and as a last resort (jus ad bellum) is regulated by the United Nations Charter and international humanitarian law (jus in bello); for the purpose of safeguarding humanity and maintaining international peace and security. The third principle, jus post bellum, advocated by juristic opinion, talks of justice after the war for restoration, environmental remediation, etc. 

Significantly, international law has been evolving to deal with “weapons of mass destruction”.  Even though water as a tool of warfare has been practised from ancient times, this tool that emerged as a potential weapon of causing mass destruction with the advent of high dam technology in the mid-19th century, has now fallen into the attention of the international community.

This article will begin with first, a brief discussion providing relevant context for this topic. Second, the technical aspects of the weaponisation of water will be explained. Third, this article will analyse the emergence of international law regulating this concern. Fourth, there will be a specific focus on weaponisation of water in the Indian context. Finally, the article will conclude with thoughts on future developments and challenges.

Contextualisation of the Weaponisation of Water   

For addressing the law of weaponisation of water, a peep into the historic development is necessary.  The threat of weaponisation of water began with the advent of high dam technology in the mid-19th century. It became apparent in modern history when the Dambuster operation was carried out by the British in 1943 during the Second World War in Germany. It resulted in the death of about 1600 people, opening the eyes of the international community to the dangers of the weaponisation of water. The recent blasting of the Kharkiv dam in Ukraine during Russia and Ukraine war, forcing the evacuation of 40,000 people and destroying the environment; Israel’s act of stopping water in Gaza starving Palestinians; and China’s plans to build a mega-dam to store a whopping 120 BCM of water to generate 60,000 MW on the Brahmaputra River near the international border and India’s unilateral decision to “keep in abeyance” the Indus Water Treaty of 1960 inviting protest from Pakistan have prompted discussion on the issue. The threat of climate change has further added to the threat perception.   The rise in temperature by 2.8°C by the end of the century due emission of carbon is predicted by the international community. Even if the Paris Agreement of 2015 succeeds and the rise is restricted to 2°C,[i] it will hurt the water resources. The Inter-Governmental Panel on Climate Change in 2022 has observed that climate change may intensify the hydrologic cycle with more extreme events: intense floods, severe droughts, etc. which threaten water availability, quality, and infrastructure.  Even settled disputes may need a fresh look in the changed circumstances.

Engineering of Water into a Weapon    

Defining water, a student of geography would say that water available on the surface of the Earth comes from precipitation as rainfall and snowfall.  The gigantic hydrological cycle is evaporation of sea water, transpiration, condensation, precipitation as rainfall or snow, infiltration to recharge ground water, run off in rivers, and finally running into the sea.  From the hydrologic cycle, it follows that the Earth is divided into basins known as drainage units.  Each basin consists of a river rising in a mountain and flowing down by gravity until it merges into the sea. The river, on its journey from mountain to sea, is joined by several tributaries.

The basins are both national basins and international basins.  The hydrology has no man-made political boundary. The water flowing in the river and tributaries by gravity defies political boundaries and cuts through in its state of nature. However, for the purpose of regulating the weaponization of water, both national and international basins are relevant. There are about 310 international basins in the world. The important international basins are: the Indus and Brahmaputra in South Asia, the Mekong in East Asia, the Euphrates–Tigris in the Middle East, the Nile and Cango in Africa, the Danube in Europe, the Amazon in South America, the Colorado and Columbia in North America.  The international basins over about 45% of the surface area of the planet.

Given this, the threat perception in the international basin is much higher. Both in international and national basins, the downstream States and upstream States are equally vulnerable to the threat of weaponization of water, even though the actual threat depends on the facts of each basin. The condition of each river basin is sui generis, andit isheavily influenced by the climate and topography.    

Hydrologically, the weaponization of water may occur in several ways. Among them, some scenarios are identified here:

• Constructing a Dam near the International Border: When a State constructs a large dam or a series of smaller dams near the international border, it may act as a gatekeeper and cause harm to the downstream by flooding or cutting off flows during the summer months.

• Hoarding of Water by Upstream State: When an upstreamStateholds water in its dam to deny water to the dependent downstream State.

• Destruction of Water Infrastructures by the Upstream State: When an upstream State destroys the dams, canals, etc, of the downstream State to wreak vengeance.

• Destruction of Water Infrastructures by the Downstream State: When the downstream State destroys the dams, canals, etc, of the upstream State to avert the threat of weaponisation by flooding or cutting off supplies;

• Flooding by Upstream State: This occurs when the upstream State deliberately releases the water from the dam without any adequate information to flood downstream to disable the movement of forces, and or to drown the people and submerge the properties.

• Seizing of the Dam, etc: A State may seize control of the dam, etc, located in the other State and deprive supplies to its dependents or flood the downstream areas to cause harm or to disable movement of forces; and

• Poisoning: A State may poison the water of a stream or water stored in a dam to cause harm or kill people.   

Evolution of International Law on the Weaponisation of Water

The legal principles of the law of war of jus ad bellum and jus in bello, and the emerging jus post bellum, the international law on weapons of mass destruction, have evolved since the Second World War. Biological weapons and chemical weapons are outlawed as weapons of mass destruction. The equally or more dangerous nuclear weapon, however, has not been banned, but possession and use have been severely restricted although discriminatively.

The ban or regulation of weapons of mass destruction may address manufacturing, possession, and use, depending on the nature of the weapon. A significant challenge is distinguishing and identifying the resource at the manufacturing level, whether it’s intended for peaceful or non-peaceful purposes, such as a weapon. The distinction is sometimes thin when transition and/or abuse (especially in the case of dual-use goods) is not difficult. The threshold bar faces this difficulty.  

Historically,customary norms frowned upon poisoning water since it is a vital need for everyone, especially so in the case of civilians. The Regulations of Hague Convention (1899, 1907) prohibited poisoning and destruction of the enemy’s property, which included water under Article 23. The Additional Protocol I (1977) to the historic Geneva Conventions on Law of War (1949) prohibits under Article 54 attacks on objects indispensable to civilian survival, water infrastructure, drinking water supplies, etc. Similarly, under the Rome Statute (1998), abuse of water during hostility is a crime against humanity under Article 7 and war crimes under Article 8(2)(b)(ii) and (iv). The Environmental Modification Convention of 1977 (ENMOD) bans under Articles I and II environmental modification for hostile purposes.

United Nations Convention on the Law of the Non-Navigational Uses of Watercourses, 1997 has codified the international water law.[ii] The purpose of the Convention is to reflect the customary rules of international water law. However, the Convention does not strictly codify the rights and obligations of States in times of hostility except mandating that international law would govern the States. The relevant Article is:

Article 29 International watercourses and installations in time of armed conflict

International watercourses and related installations, facilities and other works shall enjoy the protection accorded by the principles and rules of international law applicable in international and non – international armed conflict and shall not be used in violation of those principles and rules.

The Berlin Rules of 2004, which were formulated by the “International Law Association”, revising its earlier rules (Helsinki Rules of 1966), codify the law on the subject more comprehensively. Particularly relevant are Articles 50 to 55.

The Berlin Rules seek to establish a legal regime between the competing rights of sovereign States to act during military operations, the rights of civilians to life and property, and the obligation to protect ecology. 

Article 50 is a reiteration of Article 23 of the Regulation of the Hague Convention, barring the combatant States from poisoning the water. While prohibiting attacks on the water infrastructure, the exception is carved out in case of “military necessity” in Clause (3) of Article 51. The combatant States are prohibited from targeting ecology and impairing “the ecological integrity of waters”. Article 53 (1) lays an absolute bar prohibiting an attack on dams and dikes, “if such an attack may cause the release of dangerous forces and consequent severe losses among the civilian population”. The article deals with the role of States in occupied territory. The Clause (1) and Article 55 prohibit the termination of treaties by war, but Clause (2) permits suspension on the grounds of military necessity.    

The Geneva Water Hub – a platform of the University of Geneva in 2019, has formulated some principles on weaponisation of water known as “The Geneva List of Principles on the Protection of Water Infrastructure”. The principles of the Geneva Water Hub have advanced international law on the weaponisation of water.Principle 4, while implicitly recognising the right to weaponise water, firmly mandates the States to refrain from exceeding and, in this regard, mentions the principles of “proportionality and precautions”. Principle 4 prohibits the States from poisoning the water, and Principle 5 deems water infrastructure to be presumed as intended for civilian purposes, which (as per Principle 6) “must not be attacked”.

Brahmaputra and Indus

The possibility of weaponisation of water in the Brahmaputra by China and in the Indus by India is much talked about in geopolitics. The possibility is briefly analysed under Scenario 1, as mentioned above under “Engineering of Water into a Weapon”.       

A fear is lurking in India that China may weaponise water after constructing its planned dam in the Medog county in Tibet, across the international river Brahmaputra, known as Yarlong Tsangpo.  No doubt, a dam near the international border at a distance of about 40 km, as a gatekeeper, may act as a Sword of Damocles and pose a threat to the security interests of India in the downstream. The data shows that the dam has a capacity of 100 BCM to 120 BCM (Billion cubic metres), which will cut off the entire dependable flow of about 80 BCM (average), and part of the surplus flows that are available up to the dam site. Further and more importantly, even if China releases 25 BCM of water from the dam during hostility (hope it will not do), the entire Assam valley of 75,000 sq km will be under 1 ft of water, approximately, disrupting the civilian life system and equally affecting the movement of defence forces.

In the Indus basin, there are apprehensions expressed in Pakistan that India might weaponise water by blocking the flow of the three western rivers of the Indus basin, namely Indus, Jhelum, and Chenab.  The fear has heightened, particularly after India decided to “keep in abeyance” the Indus Water Treaty of 1960.[iii] At present, the issue is hypothetical since the total live storage capacity of reservoirs in India on these three rivers (Baglihar, Kishenganga, Salal, Uri, etc) is undisputedly less than 1% of the total available flows in the western rivers of 120 BCM on average. The weaponisation occurs if India can construct three dams just near the international border, as China has planned a mega dam on the Brahmaputra. However, no such possibility has been investigated or suggested by any reliable source.  The chances of weaponisation are less, if not non-existent.

Conclusions

The weaponization of water emerged as a threat after the development of high dam technology in the mid-19th century. There are many scenarios in which water can be engineered into a weapon. Although the threat is recognized in geopolitics and the weapon can sometimes be classified as a weapon of mass destruction, there is no comprehensive treaty or convention that clearly defines the international law regarding the permissibility or prohibition of weaponizing water.

Geneva Water Hub, 2019, has advanced from the United Nations Convention on the Law of the Non-Navigational Uses of Watercourses, 1997, and the Berlin Rules of 2004 in establishing the core principles of international law on weaponization of water, considering the existing law, “lex lata,” and the need for legal development, “lex ferenda.” In conclusion, the following propositions emerge in international law:

•  The upstream State shall refrain from weaponizing the water against the downstream State, and in case it is used as a military necessity in self-defence, it shouldn’t be used indiscriminately, disproportionately, and without adopting precautionary measures; and in any case, it shall not prejudicially affect (a) the civilians’ life or property and (b) the ecology.

• No State shall poison the water in another State, which may endanger the life of civilians who are dependent on the said water or cause harm to the crops and livestock.

• No State shall destroy or cause to be destroyed the water infrastructure in another State that may consequently flood the downstream area and destroy life, property, and ecology, and deprive the people of life-sustaining needs.   

Besides the declaration of substantive rules of international law on weaponization of water, the enforcement remains a huge challenge in view of the complexities of hydrology and climate change. International law has to keep pace with the weaponisation of water. 

[i] Article 2(1)(a): Holding the increase in the global average temperature to well below 2 °C above preindustrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.

[ii] Notably, India and China are not parties to the Convention.

[iii] The Indus Water Treaty of 1960 does not empower suspension or keeping in abeyance of the treaty. However, it also does not prohibit the residuary rights of sovereign states to terminate a treaty unilaterally in changed circumstances after 65 years. The doctrine of Ribus Sic Stantibus applies arguably. Even otherwise, suspension (keeping in abeyance) is not inconsistent with the Vienna Convention on the Law of Treaties of 1969 even though the Convention has no retrospective effect. The Convention permits suspension on the ground of breach under Article 60. And India has taken stand in its letter that Pakistan has committed breach by non cooperation and has acted against the spirit of treaty by promoting terror activities.  

*Mohan Katarki is a Senior Advocate designated by the Supreme Court of India. He has represented several States in India in the inter State water disputes before the Supreme Court and Inter State Water Disputes Tribunals.

.