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Core Hypothesis:

The core
hypothesis assumed by great philosophers is that when enduring rivals reach a
mutually hurting stalemate or deadlock, they prefer accommodation on vital
concerns and postpone political issues and seek for agreements.

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Sets of Variables:

The study
utilizes two sets of variables. The first set consists of those independent variables
which cause war over water resources or generate environmental conflict and
includes geographical necessities,  such
as the nature of physical boundaries, surface features (e.g. the control
infrastructure, both natural and man-made); economic constraints, such as the
relative dependency of the lower riparian on resources, climate change,
relative location, land use and water development patterns; and political
factors, such as domestic constraints and external pressures.

The second
set of independent variables produce accommodation between enduring rivals over
water resources. These consist of: the incidence of a mutually hurting deadlock
(be it military, economic or socio-political), the need to minimize losses, the
level of commitment to domestic reforms and the involvement of a negotiator (an
external factor influenced by the international power context). The third set consists
of some interceding variables which influence the accommodation process
include: successful pre-negotiation considerations, the culture of negotiation,
the involvement of an influential third party, silent or secret diplomacy, the
postponement of political issue(s), and the wording of an agreement.

Let’s
discuss these variables below in detail, with a view to forming a model
connecting concepts of water-war and water as catalyst for peace capable of
explaining the role of Indus River waters in Pakistan-India relationship.

WATER-WAR LINKAGES: Independent
Variables.

Numerous
factors can be determined which may play their role for the generation of
conflict over international rivers, however, the density and location of
resources and the nature of state boundaries seem to be the major reason for
conflict.

The
geographical attributes that contribute to conflict generation over
cross-boundary river water resources can be identified as the nature of
physical boundaries, relative location, surface features (such as control
infrastructures, both natural and man-made), the relative dominion of the lower
riparian, population and settlement, land use and water development patterns,
climate and water supply, domestic values, and external pressures or relations.

Among these
factors, relative location seems to be of prime importance, since location is
obviously an elemental geographical reality, and also an important
geo-political attribute. Once the location is determined, it can be easily coordinated
with some other geographic settings and geopolitical realities. Moreover, the
location factor is both basic and linked to all other factors, especially to
the nature of boundaries. Therefore, keeping the nature of the case in mind,
the focus is on the geographical attributes of boundaries and the location of
water sources as central causative factors. Nevertheless, for better solutions
all the factors are accurately conceptualized below in the light of existing
literature on the subject.

The Relative Geographic Location:

In
accordance with Relative Geographic Location, the riparian states can occupy
one of three possible locations: Upper, Lower, and Middle.

A state with
a middle location is, in a sense, simultaneously both an upper and a lower
riparian, depending on its specific context.

There should
be a dispute regarding the use of the river, each riparian is likely to proclaim
those principles of conventional international behavior which are most advantageous
for its particular location.

Likely to be
maintained by the riparian states, four such positions, are listed below. Each
position has been explained in the light of examples from the existing
literature regarding the appropriation and use of surface waters in
international law and various water codes prevailing to international rivers
and the treaties or agreements signed between the riparian(s).

The Upper Riparian and Absolute
Territorial Sovereignty:

The Upper Riparian(s)
have a very common adherence to the principle of absolute territorial
sovereignty.

The Upper
Riparian principle means: “A state is totally free, completely autonomous and
entirely independent in its authority over its own territory. Hence, it can
take any desired course of action within its territorial borders and its
authority is thus absolute over any and all water courses which flow within its
territory, even though they may terminate in another country.”

As a fact, United
States of America has been a wholehearted supporter of this principle. For
example, in 1895, in connection with a dispute between the US and Mexico over
the Rio Grande River, when the agreement was signed on 21 May 1903, the US
agreed to deliver a fixed amount of water flow to Mexico. But the treaty demanded
that such a delivery did not constitute recognition of a Mexican claim to the
water, and that the US did not understand it to establish a general principle
or legal pattern.

Same has
been proliferated in other parts of the world as a number of experts of
International Law like Mackay, Hyde, Berber, Fenwick, Briggs, Oppenheim, and
Scott are patrons and supporters of this principle.

 

The Lower Riparian and Absolute
Territorial Integrity:

The Lower Riparian
principle states clearly that a state may not step in or participate in a
practice injurious to another state.

The
international law expert, Oppenheim states that: Every state must allow rivers,
over which it does not exercise unrestricted territorial sovereignty, whether
in respect of their length or their breadth, to follow their natural course; it
may not divert the water to the impairment of one or more of any other states
with rights to the river, interrupt, artificially increase or decrease its
flow.

Definitely,
a Lower Riparian would happily supplicate this principle. Nijim argues that
“this principle, by implication, infringes upon the sovereignty of the upper
riparian and, in a sense, penalizes them for having an advantageous position,
since the lowermost riparian is not equally restricted in its pursuit of
unilateral development.”

The Middle Riparian and Resource
Community:

It is a
dilemma for a middle riparian country that it does not know which principle it
should support? If it stands in favor of absolute territorial sovereignty
vis-à-vis the lower riparian, then, by its own argument, it may find itself
raveled in unlikely difficulties and problems of the same principle, should the
principle be supplicated by the Upper riparian.

On the other
hand, if the Middle riparian champions the principle of absolute territorial
integrity, it may find that it has obtruded limitations upon its own freedom of
action vis-à-vis the Lower riparian, limitations which may compromise some of
the development schemes planned by the Middle riparian.

Nijim
believes that a Middle riparian state will profess for a third principle of
riparian regulation, namely that of a community in water resources. This
principle anticipates a maximum of cooperation amongst the riparian states in
treating the whole river basin as a unit.

Its apostles
speak sometimes of ‘natural law’ and sometimes, perhaps more practically, of
the benefits accumulating to all the users, whether they can be the benefits of
economy or of political fraternization. The principle has also been supported
by non-riparians, especially in the case of traversable waterways. The
principle is supported by the following famous International law experts on
water affairs: Smith, Brierly, Moor, and Griffin.

 

 

 

Restricted Sovereignty and Restricted
Integrity:

The
alternative to provide resources to communities and occupying place between the
principles of absolute territorial sovereignty and integrity is the principle
of restricted sovereignty and restricted integrity, which is derived from the
three and is manifested in an agreement, can appropriately be termed as
“accommodation”. Accommodation refers to an intermediary approach.

One neither
accepting the absolute sovereignty right of the Upper riparian nor absolute
integrity in favor of the Lower riparian. Moreover, when there is deficiency of
a sense of community in an approach in the development or use of international
river resources, it refers to the total deviation of a river (or rivers) by an
Upper riparian to form its delegated share of a system of rivers.

Restrictions
are, mostly, imposed on the Upper riparian, not to interfere with the
downstream flow of those rivers allocated to the Lower riparian as its share,
except where designated uses have been agreed upon. No joint management of
water resources is predicted under this principle. Instead, the independent
development of water resources by both the Upper and the Lower riparian, with minimum
marginalization between them, is agreed upon. Somehow, if the riparians do not
reach an agreement and yet neither wishes to press for the respective absolute
principles, the status quo tends to be maintained and no development takes
place until one riparian insists on a one-party or lineal development.

Logically,
the conflict potential intrinsic in such a restriction occupies an intermediary
position between the community principle on one hand and the two absolute
principles of restricted sovereignty and restricted integrity on the other.

Geographic Location and Conflict
Potential:

There is no
doubt that the principles of absolute territorial sovereignty and integrity implicitly
greater potential for conflict than the general principle. The sovereignty
principle indicates an predominant preoccupation with presumed rights on the
part of one party and a denial of the similar interests for others, when these
interests appear to be mutually diverging.

It carries
an intrinsic, undeniable sense of power with the Upper riparian to discourage
the Lower riparian. This ability may, in turn, lead to the dissatisfaction on
the part of the Lower riparian, which can hardly reciprocate in kind.

In this
case, the conflict potential is both a function of the ability of the Lower
riparian to enforce its claim, as well as the tendency of the Upper riparian to
respect that claim. However, mere exhortation on one or the other of these two
absolute principles is itself indicative of a reluctance to reach a settlement,
and thus a sign of absence of harmony in international relations.

 The principle of absolute territorial
sovereignty ranks higher to the principle of absolute territorial integrity in
terms of conflict potential. If a requirement on absolute sovereignty of Upper
riparian leads to the impoverishment of Lower riparian from what it regards as
essential to its national survival and welfare, then it is likely to consider
the possibility of resorting to force.

While an
insistence on absolute integrity will lead to the use of force only if the Lower
riparian feels deprived of minimum essentials. In essence, the conflict is,
associated with a bonding to absolute sovereignty. Moreover, where extreme
positions are held, an insistence on absolute sovereignty will give rise to an initiative
in which a river project is executed, whereas an insistence on absolute
integrity will translate into the use of force.

The former
case, involving less extreme action, is more likely than the latter; yet the
breaking point will be approached at addendum, and the Lower riparian will at
some point decide that use of force is the only resort left. On the other hand,
pursuit of community principle results in a minimum of conflict potential as
apparently there is a treaty not to disagree on riparian matters. In fact, of
the three principles, this one is extremely favored by writers on international
riparian regulations.

Due to great
conflict potential the principle of absolute sovereignty is increasingly being
regarded as a historical fact, with one writer condemning it as being:
“…based upon an individualistic, anarchical conception of international law,
in which selfish interests are exclusively taken as the rule of conduct and no
solution is offered regarding the opposite interests of upper and lower
riparian.”

On the other
hand the community principle finds overwhelming support in the actual practice
of states, in settling their riparian disputes and in the decisions of peacemaking
courts, both of which comprise two important components of international law.

There are
over one hundred treaties in which co-riparian(s) have voluntarily restricted
their absolute freedom of action. Moreover, not a single international judicial
decision supports the principle of absolute sovereignty or absolute integrity.

The above
description signifies that the geographical location of a resource must be commonly
considered in the assessment of the potential of conflict. An Upper riparian
position, coupled with an exercise of absolute sovereignty, possesses a high conflict
potential. A Lower riparian position may also lead to conflict, but the
potential does not seem to be as great.

In case
neither party insists on the absolute stance, then in the absence of an
agreement a non-formal restriction on one-party development may be practiced,
then the potential for conflict will be lower. A Middle-riparian position is
likely to be coupled with a preference for the principle of community in
resources and consequently the conflict potential will be lowest.

 

The Nature of Political Boundaries:

The origin
of water distribution conflict between two states is most often rooted back to differentiation
of borders between the states by colonial masters. Boggs have assessed the
borders on the basis of their geometric or morphologic composition, as well as
on their genetic nature.

An
observation from Nijim defines that in case of geometric portrayal of borders,
the potential of conflict remains high because of colonial intent or neglect to
value any ethnic, religious and cultural divides. On the other hand, the chances
of conflict vary in morphologic division. For instance, chances of conflict
would be high in boundaries lying in fertile lands in comparison to a desert
landscape.

Boundaries
in the context of rivers also present a varying possibility of conflict. For
example, river boundaries entail a relatively high conflict potential primarily
due to a river’s facet of uniting over dividing, and its tendency to alter the
course of ravine. Similarly, if rivers are expansive with surrounding land
overwhelmed with mires, swamps and futile land, the chances of conflict would
remain low.

Conflicts
are as natural to human nature as needs and interests are. The more practical
approach to the question of boundary classification is the one based upon
genetic nature. It denotes the relation of the boundary to the cultural pattern
existing at the time of boundary delimitation. Here, three types of generic
boundaries may be noted, in order of rising conflict potential: antecedent, subsequent,
and superimposed.

The first
predates settlement, so that the evolution of cultural patterns, if any, is
related to the established boundary. The subsequent is aforementioned by the
settlement, and tends to take that settlement into account. The third is
independent of the existing cultural patterns, and in fact may be forced upon
them later, as in the case of truce and ceasefire lines, or super-imposed
boundaries in the event of the political division of a territory between two
independent states.

In such a
case, if any existing control structures (such as head-works, dams and barrages)
acquired or awarded to the Upper riparian makes it capable of depriving the Lower
riparian of its legitimate share of water resources, the conflict potential is
not only high but inescapable too.

Surface Features:

The
contributory factors of a region are the surface features of conflict because
utilization of the valley depends upon them. For instance a valley in a remote
and rugged mountainous region will possess a minimum of conflict potential due
to its relative inaccessibility and the inappropriateness of the terrain for
resource development.

Moreover the
factor of surface features is related to existing human wants, abilities, and
needs. Similarly, the extensive marshy flood plain of a river is persuadable to
flooding and is less useful for human development, hence constitutes low
conflict potential.

On the other
hand, a fertile valley with appreciable potential for storage dams and hydroelectric
power may possess a higher degree of conflict potential. The potential would be
even greater in the case of a ‘mature river valley with good prospects for
human settlement’ and development. In short, if the part of a river basin is
judged by the residents or adjacent population as a good resource, actual or
potential, that part will acquire greater potential for conflict.

Climate and Water Supply:

The increasing
amount of aridity constitutes higher conflict potential. Rising aridity creates
an accelerated demand unpredicted upon decrease in the supply. Under humid
conditions, on the other hand, non-fluvial water sources are available for
consumptive purposes, and therefore demand for the water supply will be less.

Nijim
pointed out that humid and arid river basins are different enough to have
acquired respective functional associations. Rivers in arid climates have been
associated with consumptive and rivers in humid climates with non-consumptive
usages. He presents examples form Roman and English laws.

 For instance, Roman law awarded water rights
on the basis of chronological priority, so that once a user had established a
pattern of consumption, it needs not to be concerned about interference from a
more recent riparian, even though the latter may be located upstream.

On the other
hand, in north-western Europe, irrigation was of minimal importance while
navigation interests were paramount. English Common Law thus assured to each
riparian the unmitigated continued flow of the river. Agreements, in fact, have
been reached more readily in the latter type of basin than in the former as
“the prosperity of arid regions has been especially sensitive to
political conditions.”

Population Density and Settlement
Patterns:

A river
basin which is inadequately populated usually bears a lower degree of conflict
potential than the densely populated one. Similarly, an agrarian irrigation
economy will be especially possessive of its river flow and water rights, and
thus will possess a high conflict potential, compared to an industrial economy.

This
presupposition is based upon the suitability of power generation potential of a
river, given the non-consumptive nature of the water use. However, such an
economy may also use the river for the transportation of sewage, resulting in
the worsening of pollution prospects, and consequently of conflict potential
too. If the river function is predominantly for navigation or power generation,
the potential will be low. For example the resource itself is not diminished in
quantity or quality, and any compromise may not go beyond the matter of
navigational rules.

Nijim argues
that the higher conflict potential may also be injected into the core
population area, because resistance to change and compromise is likely to be
more effectively segmented by political-administrative, historical-traditional,
religious-iconographic cores of population.

The
potential will be still greater if such cores are located on either side of an
international border. Moreover, a river basin in which the population is
homogeneous is likely to possess a lower level of conflict potential and vice
versa.

Domestic Scenarios and External
Relations:

A vulnerable
state, which needs to be protected from external pressures, harbors makes it a
higher probability of conflict potential. Such pressures may include
irredentist claims or distent intentions. The conflict potential is likely to
extend to parts of the river basin outside the state. A river basin located in
a politically instable state, bears high potential for conflict.

Internal
weakness and divisiveness might reduce conflict potential if the state is
pursuing defensive external posture but sometimes state’s preoccupation with
internal affairs might lead it to an aggressive foreign policy in an attempt to
achieve internal unity in the face of a presumed external danger.

A state may
possibly experience a complementary situation between negative internal and
negative external pressures, with one factor reinforcing the other. Such a situation
may arise if an irredentist claim is coupled with a serious matter of disappointment
by a segment of the internal population. In such a scenario, the conflict
potential will be far high.

Summary:

We can
assume that the conflict potential in an arid river basin would be high if the
following circumstances exist in combination: a Lower riparian confronted by an
Upper riparian claim of absolute territorial sovereignty, in which surface
features provide control infrastructures for the Upper riparian and there are
no serious obstacles for further river development projects for the Upper
riparian; the region is ethnically heterogeneous with conflicting territorial
claims; the location of the disputed territory is the major source of fresh
water supply for the Lower riparian.

The
boundaries are super-imposed between the riparian; there is a high population
density throughout the basin, with several urban cores and much of the
settlement is fairly recent and the demand for water is consumptive in nature.
The factors conceived in this section will be explained and assessed in future,
both individually and in combination in order to ascertain their relative role
in conflict generation in the Indus Basin. The factors facilitating
accommodation are identified in the following section.

ACCOMMODATION: Independent Variables

The
concerned core question in this section of study is:

Under what
conditions a Lower riparian starts accommodation vis-à-vis the Upper riparian?
Under what circumstances accommodation progresses and under what conditions
does it regress (i.e. returns backward to procedural accommodation or an
adversarial relationship? The second question, explored here, deals with the
techniques that facilitate the accommodative process.

The review
of the existing literature reveals that no significant study firmly focuses on
accommodation between developing states, barring an effort of a student in his
masters’ thesis from which some of the variables have been incorporated in this
study. The additional theoretical arguments are derived from the literature on
negotiation; conflict analysis; conflict management and resolution and also
accommodation and cooperation between the former Super Powers; and domestic
politics and foreign policy decision-making in the developing world by the end
of Cold War.

Some
explanatory variables are directly deduced by observing the phenomena of
accommodation in the developing world, for instance, the role of the presence
or absence of a ‘culture of negotiation’ between the disputants. The role of an
influential third party in facilitating the peace initiative and furthering the
process of accommodation, where the disputants lack culture of negotiation, was
found to be significant in many cases relating to the developing world.

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