The growing strains of the Trade War and international upheavals of the United States and other nations with China extend to its competitor in Asia itself. Countries that are dissatisfied with China’s supremacy are closely watching for developments on the Ladakh border conflict between India and China. The intriguing facet of the Sino-Indian tussle that is often overseen in public discourse, is the aggressive usage of natural resources. Rivers have been used by China as a weapon for years. This assault is also observed in many Southern Asian regions as Chinese Dams regulate and curb the flow, resulting in agricultural obstacles contributing to calamities such as drought in riparian countries downstream, and subsequent floods when water is suddenly released.
Political Analysis
The report of the Lower Mekong Initiative in April 2020 revealed that Chinese dams had hindered the Mekong River, leading to economic losses for the agricultural sector in Laos, Vietnam, Thailand, and Cambodia. The Mekong River Commission (hereinafter ‘MRC’) is the sole intergovernmental entity, to collectively control the common water rights of the Mekong River. Yet China, which manages the headwaters, is not included. China is just a dialogue partner and is thus not constrained by the rules, making it easier to construct a dam on the river without the approval of MRC. This strategy of targeting and weaponising rivers and dams has allowed China to actively monitor the nations of South East Asia, triggering more instability.
China has also breached its international obligations by refusing to cooperate with India on trans-boundary water management. In 2013, India posed objections to the building of Chinese dams on the ‘Yarlung Tsangpo’ River (the Chinese name for the Brahmaputra River) that obstructed its flow to Northeast India. Again in 2016, China announced that it was blocking one of the tributaries of Brahmaputra River in Tibet for a Hydroelectricity Project. The Chinese also declined to exchange hydrological data from their dams after the Doklam Crisis, 2017 which resulted in floods in Assam, and Uttar Pradesh.
Several studies in 2017 by Col. Vinayak Bhat, a military intelligence veteran of the Indian Army, indicated the threat of infrastructure being constructed by China in the form of tunnels in the Brahmaputra River, diverting its water. The diversion can hurt Indian Agrarian livelihood and on the other hand, a sudden release of water can cause flooding on the Indian side. More so, the 2009 news accounts provided proof of a massive Chinese dam on the Indus River tributary near Shiquanhe, in Tibet.
Recently, in the middle of the Sino-Indian conflict at the Line of Actual Control (hereinafter ‘LAC’), numerous satellite photos confirmed the Chinese Army’s intention to alter the status quo of the Galwan River, in the Galwan Valley. Hawkeye 360’s photographs of June 11, examined by experts, show the existence of water channelizing machinery with massive mobilization of the People’s Liberation Army (hereinafter ‘PLA’).
Until May 2020, on the pretense of routine patrolling exercise, the PLA has acquired a dominant position in the Galwan Valley. After realizing the scarcity of space and the need to access more surface area for heavy deployment of troops and machinery, the PLA used bulldozers with water channelizing machinery to divert the flow of the Galwan River. Reports suggested that alteration of the river could also be an attempt to thwart the 19-year-long Indian plan on the very important route from ‘Durbuk to Daulat Beg Oldi’ providing efficient access for the Indian Army to Karakoram Pass eyeing Aksai Chin for security reasons. Moreover, analysts claim that the latest incursions are aimed at securing the strategic path of the China Pakistan Economic Corridor, moving Indian influence further south. Studies also suggest that China is eyeing high-altitude glacial lakes including the Pangong and other water sources in the Himalayas to channel water to the semi-arid Aksai Chin. If this pattern persists, it may indicate that Indian influence is forced to the west of the Shyok River and to the south of the Indus River, pushing India to recognize both rivers as natural borders, undermining Indian sovereignty. China has recently again threatened Indian autonomy by helping Pakistan in the illegal Diamer-Bhasha Dam in the Pakistan-occupied Kashmir.
Pundits like Chellaney have also claimed that China is eager to use its riparian supremacy and design water as a strategic tool against India. It has its origins in history and the manner in which the Chinese government has shaped its actions on the basis of the spatial features of the natural resources has embarked on a modern concept of neo-imperialism.
Dr. Ram Manohar Lohiya, an Indian political theorist and freedom fighter, in his book, ‘India, China and Northern Frontiers,’wrote that after 1931 China lost influence over several regions in North China and Machuria that, “through denationalization of strategic cities known as foreign concessions and international settlements, control over rivers and railways, business investments and government loans, different imperialist powers maintained their grip on China.” But things changed during Lohiya’s lifetime, with China seeking to enforce a neo-imperial rule, with water and natural resources politics becoming one of its factors, among others. It started with controlling resource-intensive Tibet with greater exposure to the Himalayas and extending further in India later on, leveraging precious Himalayan resources. Lohiya indicated that if India wants to challenge China’s neo-imperial order, it will have to concentrate on the Himalayan area with Lohiya’s ‘United Himalaya-HimalayaBachao’ (strategic partnership with Tibet, Nepal, and Bhutan) strategy, whilst repeatedly cautioning Nehru of Chinese deceit and attempts.
Today, as China levies loans on African nations, Sri Lanka, Pakistan, and several other (South) Asian nations, while invoking the National Security Act in Hong Kong and dominating Tibet, Nepal and Aksai Chin to maintain supremacy in the Himalayan region, it elaborately shows the ‘modern’ neo-imperialism that it has set in motion. The latest face-off at LAC calls for a rethink of the jurisprudence underlying international law on territorial conflicts. The article, after intercepting history to clarify China’s new approach, will also suggest that the “unilateral” alternations with the Galwan River are unlawful under international law.
Legal Analysis
Alongside the LAC debate, which remains unsettled, the river alteration by the PLA is in gross violation of not only the Panchsheel Treaty, but also the1993, 1996, and 2013 Agreements on cooperation and confidence-building along the LAC between India and China. Article 26 of the Vienna Convention on the Law of the Treaties specifies that any treaty in effect is binding on the parties involved and must be followed in good faith. In fact, China is also in severe breach of international water law.
Considering status quo before May 2020, the LAC would make China an upstream riparian state and India a downstream one. The river in consideration is the Galwan River which originates from Aksai Chin, crosses the LAC and, travels to Ladakh, ultimately flowing into the Shyok River. It is considered as one of the most significant tributaries of the Indus River.
The United Nations Convention on the Non-Navigational Use of International Watercourses 1997 (hereinafter ‘Convention’), which entered into force in 2014, concerns the use and conservation of all waters which cross international borders, including surface and groundwater.
Notwithstanding its unrivaled status as a conduit of river flows to more than a dozen nations, till date China, hasn’t entered into a single water-sharing agreement with any neighbour, unlike India, claiming that an upstream country has the right to claim absolute territorial control over the rivers and the ability to divert as much water as it wishes to, irrespective of the impact on the downstream states.
Additionally, until the present, the Convention has not been adopted by India, and China has rejected the same claiming that it favors a downstream riparian state. Nevertheless, despite this unwillingness to accede and ratify the Convention, some aspects of the Convention have almost achieved the status of customary rules in international law (general principles in law accepted by civilized nations.) Some examples are the equitable allocation of water and prior notice to the Co-Riparian States for planned measures on shared watercourses, making it mandatory for every nation to oblige with. The tumultuous historical experience of the usage of trans-boundary waters has contributed to the development of a complex legal system governing privileges and responsibilities governing co-Riparian states, borrowing from rulings of court opinions and legal luminaries.
Rejecting the assertion of absolute territorial jurisdiction over trans-boundary water, as strongly claimed by China, the International Water Law system focuses primarily on the values of fair usage of water resources and the commitment to avoid trans-boundary harms. In the successful Lake Lanoux arbitration, between France and Germany, this principle has been recognized as a part of Customary International Law. It was also later stated by the Court in Gabcikovo-Nagymaros case surrounding the equitable usage of the Danube River. A subsequent decision surrounding the unilateral diversion of the Leitha River, a tributary of the Danube River, by the upstream state, Austria, harmed Hungary, the downstream state also asserted the same. This is strengthened by the Court’s holding in the landmark Corfu Channel case that “it is every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.”
In his ‘A Treatise on International Law’, Professor Hall, a renowned English Lawyer, stated that the interruption or restriction of the flow of a river by the upper riparian State to the detriment of the downstream river is forbidden. This is based on the theory that ‘no State may change the natural conditions of its territory to the disadvantage of the natural conditions of the neighboring State. In other words, a State which implements new works in the usage of water that could have an impact on the other State should first contact the other State, in considering the principles of sic uteretuoutalienum non laedas.
Therefore, the changing of boundaries by coercion is inappropriate and would be unsuccessful, as the use of coercion, either personally or by a proxy (Galwan River) to promote the national interest of a government (highlighted above) vis-à-vis another state is forbidden by international water law. This means that the international water law not only contains limits on the usage of water but also takes into consideration the wider picture of “strategic weaponsation” of water to effectively control vast land areas or facilities to fulfil l the vision of sovereignty.
No regard for the Environment
Studies have also proved that China is constructing a dam on the river, which may result in long-term disruption to the river’s ecology and can adversely impact its flow to the Indian Territories. The Kishenganga Arbitration has specifically laid out the duty to protect marine resources by the maintenance of minimal flows. The Arbitration panel held that “there is no doubt states are required under contemporary customary international law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering state.”
ConclusionWang Zhijian in his book on international rivers claimed that China lacks an understanding of international water problems and that this has an impact on National and International policy strategy. Ma Bo, a scholar at Fudan University, China, asserted that the Helsinki principles on cross-border water management might become a basis for China’s water policies and that only equitable access and freedoms could guarantee peace in the region. This has been asserted time and again by India. While India has championed cooperation in water with riparian neighbour countries it has also developed modern international concepts of water law, e.g. India’s water treaties with Pakistan and Bangladesh established new rules of international water law by ensuring the delivery of reasonable amounts of water during the crucial dry season. In the coming years, China, by ramping up the building of dams on the trans-Himalayan Rivers, might turn water into a political tool against India. As future demands for freshwater can increase the likelihood of continuing tensions between India and China, it makes it necessary for Indian leadership to consider the overlooked objectives of China.