The Russian Aggression on Ukraine and International Law
Understanding the Indus Waters Treaty
Navy gets 12th P8I aircraft from Boeing
Manipur Meiteis’ demand for ST status hangs fire
A demand for granting Scheduled Tribe (ST) status to the Meiteis has found no takers among the political parties in poll-bound Manipur.
The Meiteis are the dominant community in 40 of the 60 Assembly seats straddling the Imphal and Jiribam Valleys. A majority follow Hinduism while more than 8% are Muslims, locally known as Pangals.
A pro-ST status movement ahead of the two-phase elections was expected to have been a poll issue. But it found no place in the manifestos of either the national or the regional parties.
This has not deterred the Scheduled Tribe Demand Committee, Manipur from carrying on the fight for the community that it claimed was recorded in official documents as ST till 1935. It said representatives of India had sought the opinion of Meiteis on the ST status when the Constitution was drafted in 1949-50.
The Meitei people, or Manipuri people, are an ethnic group native to the state of Manipur in northeastern India. The Meitei primarily settled in the Imphal Valley region in modern-day Manipur, although a sizable population have settled in Assam, Tripura, Nagaland, Meghalaya, and Mizoram; with notable presence in the neighbouring countries of Myanmar and Bangladesh.
The Meitei ethnic group represents about 53% of Manipurs population.
Origins and history
Little documentation exists in the form of written records about Manipuri history concerning the spans between Iron Age and the first millennium in North East India. The geopolitical history of the region along with the ethno-linguistic background of the inhabitants are largely unknown.
Meiteis are assumed to be non-autochthonous inhabitants — one of the seven yeks (clans) in the valley — who had migrated from Southern China during the late Iron Age, sometime before the Christian era.
The earliest sections of Ch.K., a Meitei chronicle, records the gradual expansion of Meiteis across Manipur and assimilation of other clans into a confederacy.
The Meitei people speak Meiteilon (also known as Manipuri), a Tibeto-Burman language. Meiteilon is one of the officially recognized languages of India, and was included in the Eighth Schedule to the Constitution of India in 1992.
Shaking up Europe’s security architecture
The commencement of Russian military action in Ukraine brings down the curtain on the first act of a bizarre drama that has been playing out over the past eight months. At the heart of it is the instability in the post-Cold War security order.
The first act began with a meeting between U.S. President Biden and Russia’s President Vladmir Putin in June last year, promising to reverse seven years of relentless U.S.-Russia acrimony. Mr. Biden’s decision to reach out to Mr. Putin signalled a U.S. geopolitical rebalancing, seeking a modus vivendi with Russia and disengagement from conflicts in Europe and West Asia, to enable a sharper U.S. focus on domestic challenges and the external challenge from its principal strategic adversary, China.
These were Putin’s terms
Mr. Putin saw this reengagement as an opportunity to revive Russia’s flagging economy and expand its freedom of political action globally.
However, he wanted this engagement on equal terms. Russia would cooperate in this geopolitical rebalancing if its concerns are met, so that it does not constantly have to counter moves to probe its territorial integrity and constrain its external influence — which is how Russia sees the strategic posture of the North Atlantic Treaty Organization (NATO) and U.S. policies.
Russia has repeatedly articulated its grievances: that NATO’s expansion violated promises made prior to the breakup of the Soviet Union; that Ukraine’s accession to NATO would cross Russia’s red lines; and that NATO’s strategic posture poses a continuing security threat to Russia.
NATO’s expansion as a politico-military alliance, even after the dissolution of the Soviet Union and the Warsaw Pact, was at the U.S.’s initiative. It was intended to temper European ambitions for strategic autonomy from the sole superpower and to counter Russia’s resurgence. Recent experience shows it may not be succeeding in either goal.
NATO’s weakened glue
NATO countries today span a geography of uneven economic development and a diversity of political traditions and historical consciousness. Moreover, the original glue that held NATO together — ideological solidarity (free world against communist expansion) and an existential military threat — dissolved with the collapse of communism and the Warsaw Pact.
There is no ideology to oppose and threat perceptions vary, depending on geographical location and historical experience. This heterogeneity means a diversity of interests. American leadership has normally succeeded in papering over differences, but the growing ambitions of countries is making this increasingly difficult.
The current crisis in Ukraine has illustrated the divisions, and exposed the limitations of the U.S.’s ability to bridge them. The irony is that the divisions are of the U.S.’s making. Its pressure on NATO in 2008 to recognise Ukraine’s membership aspirations and its encouragement for a change of government in Kyiv in 2014, provoked the Russian annexation of Crimea. The subsequent armed separatist movement in eastern Ukraine (Donbas) led to the Minsk accords of 2014-15, which provided for a special status for this region within Ukraine.
Ukraine considers this an unfair outcome, and the U.S. has supported its efforts to reinterpret the accords to its advantage. While some European countries supported this line, France and Germany — which brokered these agreements — have periodically tried to progress implementation, in the effort to break the impasse and resume normal engagement with Russia, which serves their economic interests.
In recent months, the U.S. signalled that it would support the full implementation of the Minsk accords, but apparently found it difficult to shake the entrenched interests sufficiently to make it happen. This may have finally convinced Mr. Putin that his concerns would not be met through negotiations.
U.S. interests have also divided NATO on energy security. For Germany, the Nord Stream 2 (NS2) Russia-Germany gas pipeline is the cheapest source of gas for its industry. Others deem it a geopolitical project, increasing European dependence on Russian energy. This argument masks self-serving interests.
Ukraine fears the diminution of gas transit revenues, and also that if its importance for gas transit declines, so will Europe’s support in its disputes with Russia. The U.S.’s “geopolitical” argument against NS2 dovetails neatly with its commercial interest in exporting LNG to Europe, reinforced by U.S. legislation for sanctions against companies building gas pipelines from Russia. Increasing LNG exports to Europe is explicitly stated as a motivation for the sanctions. European countries that oppose NS2 are ramping up their LNG import infrastructure to increase imports from the U.S.
The manner in which NATO countries implement the promised harsh sanctions against Russia will demonstrate whether, how much and for how long, this crisis will keep them united.
It is too early to say what Mr. Putin’s endgame is, and how costly this adventure will be, in terms of lives and destruction, as well as in its political and economic impact. Without justifying the manner in which Russia has chosen to “right” the perceived “wrongs”, it has to be said that this crisis results from a broken security architecture in Europe. A sustainable security order has to reflect current realities: it cannot be simply an outgrowth of the Cold War order, and it has to be driven from within. Also, a European order that does not accommodate Russia’s concerns through genuine negotiation cannot be stable in the long term. France’s President Emmanuel Macron has been making this point forcefully, arguing for Europe to regain its strategic autonomy. He has called NATO “brain-dead” and said that Europe, as a “geopolitical power” should control its own destiny, regaining “military sovereignty” and re-opening a dialogue with Russia, managing the misgivings of post-Soviet countries.
Outlook for India
India has to brace itself for some immediate challenges flowing from the Russian actions. It will have to balance the pressure from one strategic partner to condemn the violation of international law, with that from another to understand its legitimate concerns. We were there in 2014, and managed the pressures. As Russia-West confrontation sharpens further, the U.S. Administration’s intensified engagement in Europe will inevitably dilute its focus on the Indo-Pacific, causing India to make some tactical calibration of actions in its neighbourhood. Geopolitics, however, is a long game, and the larger context of the U.S.-China rivalry could, at some point in the not too distant future, reopen the question of how Russia fits into the European security order.
SC says Tribunals Act goes against its order
The Supreme Court on Thursday said the governments move to introduce a statute last year on key tribunals, that too, merely days after the court struck down an identical law, may amount to dishonouring its judgment.
The oral remark came during a mentioning made by senior advocate Arvind Datar before a Bench led by Chief Justice N.V. Ramana for early hearing of petitions filed by the likes of Madras Bar Association and Rajya Sabha MP Jairam Ramesh, who have challenged the Tribunal Reforms Act of 2021. This Act, it is argued, revives an ordinance struck down by the Supreme Court.
Mr. Ramesh, in his petition, has submitted that the 2021 Act which abolishes nine key tribunals, raises a serious threat to judicial independence by giving the government wide powers regarding appointments, service conditions, salaries etc., of members of key tribunals. He said it was passed without parliamentary debate amidst ruckus in the House.
The petitioners have argued that the Act was introduced in the Lok Sabha just days after the Supreme Court struck down the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance of 2021. The Act brought back the very same provisions in the ordinance which were struck down by the Supreme Court. All this was done without even removing the basis of the top court’s judgment.
Meanwhile, the court referred to a communication from the Attorney-General which informed that vacancies in various key tribunals have been filled. Appointments are yet to be made to the National Green Tribunal, Armed Forces Tribunal and the Central Administrative Tribunal as the files are pending with selection committees headed by Supreme Court judges.
The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 was promulgated in April 2021. The Tribunals Reforms Act, 2021 essentially replaces the ordinance.
The Act absolves certain appellate tribunals/boards and shifts their functions to other existing judicial bodies such as high courts.
It seeks to abolish certain appellate tribunals (for example, the Film Certification Appellate Tribunal, Airports Appellate Tribunal, etc.) and also bring in changes in the terms of service of the tribunal officials.
The Supreme Court questioned the government over the hasty passage of the bill and also asked the government to give reasons for the bill’s introduction.
Tribunal Reforms Act, 2021 Salient Features
The Act, as mentioned before, seeks to dissolve some of the existing tribunals and move their functions to judicial bodies like the high courts.
Search-cum-Selection Committees will be constituted and on the basis of the recommendations of these committees, the Central Government would appoint chairpersons and members of tribunals.
The government should act upon the recommendations preferably within three months.
The Russian Aggression on Ukraine and International Law
On 22 February, Russia recognised the self-declared Donetsk and Luhansk republics in the Donbass region of eastern Ukraine, and sent Russian troops to these territories.
Finally, yesterday Russia launched a full-scale invasion on Ukraine. The Russian actions have been condemned widely and raise several questions concerning violation of international law.
How is Russia violating the UN Charter?
The principle of non-intervention in domestic affairs is the foundational principle on which existing international order is based. The principle is enshrined in article 2(4) of the UN Charter requiring states to refrain from using force or threat of using force against territorial integrity or political independence of any state. It prohibits any kind of forcible trespassing in the territory of another state, even if it is for temporary or limited operations such as an ‘in and out’ operation. The Russian attack on Ukraine is violative of the non-intervention principle, and amounts to aggression under international law.
The UN General Assembly Resolution 3314 (1974) defines aggression as the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state. Additionally, allowing one’s territory to be used by another state for aggression against a third state, also qualifies as an act of aggression. Accordingly, Belarus can also be held responsible for aggression as it has allowed its territory to be used by Russia for attacking Ukraine. Aggression is also considered an international crime under customary international law and the Rome statute establishing the International Criminal Court.
Russia’s desire to keep Ukraine out of NATO is a prime reason for its use of force against Ukraine. This is violative of Ukraine’s political independence under article 2(4) as Ukraine being a sovereign state is free to decide which organisations it wants to join. Also, by resorting to use of force, Russia has violated article 2(3) which requires the states to settle their dispute by peaceful means in order to preserve international peace and security.
What about the principle of self-defence?
In face of the use of force by Russia, Ukraine has the right to self-defence under international law. The UN Charter under article 51 authorises a state to resort to individual or collective self-defence, until the Security Council take steps to ensure international peace and security.
In this case, it seems implausible for the UNSC to arrive at a decision as Russia is a permanent member and has veto power. However, Ukraine has a right under international law to request assistance from other states in form of military assistance, supply of weapons etc.
On the other hand, Russia has also claimed that it is acting in self-defence. This claim is questionable, as there has been no use of force, or such threats against Russia by Ukraine. It has been claimed by Russia that Ukraine may acquire nuclear weapons with the help of western allies. However, the International Court of Justice (ICJ) in the Legality of Threat of Nuclear Weapons case held that mere possession of nuclear weapons does not necessarily constitute a threat.
Thus, even if Ukraine has, or were to acquire nuclear weapons in the future, it does not become a ground for invoking self-defence by Russia. Further, mere membership in a defence alliance such as NATO cannot necessarily be considered as a threat of aggression against Russia. Thus, here too Russia cannot invoke self-defence.
Russia can also not invoke anticipatory self-defence as such invocation according to the Caroline test would require that the necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation. However, this is not the case with Russia.
Understanding the Indus Waters Treaty
A 10-member delegation from India will visit Pakistan on February 28, to attend the 117th meeting of the Permanent Indus Commission, from March 1-3. The Indian Commissioner of Indus Waters, Pradeep Saxena, will lead the delegation visiting Islamabad, while the Pakistan side will be represented by its Commissioner for Indus Waters, Syed Muhammad Mehar Ali Shah.
The two countries hold a yearly meeting to discuss cooperation on the Indus River System, as prescribed under Article VIII of the Indus Waters Treatysigned by both in 1960, with the intervention of the World Bank. The Commissioners are required to meet at least once a year, alternately in India and Pakistan.
In the upcoming meeting, Pakistan is likely to bring up its objections to three Indian Hydropower projects in the Chenab basin in Jammu and Kashmir- the 1000 Megawatt (MW) Pakal Dul project, the 48 MW Lower Kalnai project and the 624 MW Kiru project, aside from other smaller Hydropower units India wants to develop in Ladakh. India has already said, however, that all the projects are in full compliance with the Indus Waters treaty.
What is the Indus Waters Treaty?
The Indus river basin has six rivers- Indus, Jhelum, Chenab, Ravi, Beas and Sutlej; originating from Tibet and flowing through the Himalayan ranges to enter Pakistan, ending in the south of Karachi.
In 1947, the line of partition, aside from delineating geographical boundaries for India and Pakistan, also cut the Indus river system into two. Both the sides were dependent on water from the Indus river basin to keep their irrigation infrastructure functional and therefore, equitable distribution was needed.
Initially, the Inter-dominion accord of May, 1948 was adopted, where both countries, after meeting for a conference, decided that India would supply water to Pakistan in exchange for an annual payment made by the latter. This agreement however, soon disintegrated as both the countries could not agree upon its common interpretations.
In 1951, in the backdrop of the water-sharing dispute, both the countries applied to the World Bank for funding of their respective irrigation projects on ??Indus and its tributaries, which is when the World Bank offered to mediate the conflict.
Finally, in 1960, after nearly a decade of fact-finding, negotiation, proposals by the World Bank and amendments to them, an agreement was reached between the two countries, and the Indus Waters Treaty (IWT) was signed by former Prime Minister Jawaharlal Nehru and then President of Pakistan, Ayub Khan. The former Vice President of the World Bank, W.A.B. Iliff, also signed it.
What are some of its key provisions?
The treaty prescribed how water from the six rivers of the Indus River System would be shared between India and Pakistan. It allocated the three western rivers—Indus, Chenab and Jhelum—to Pakistan for unrestricted use, barring certain non-consumptive, agricultural and domestic uses by India and the three Eastern rivers—Ravi, Beas and Sutlej—were allocated to India for unrestricted usage. This means that 80% of the share of water or about 135 Million Acre Feet (MAF) went to Pakistan, while leaving the rest 33 MAF or 20% of water for use by India.
It also required both the countries to establish a Permanent Indus Commission constituted by permanent commissioners on both sides. The functions of the commission include serving as a forum for exchange of information on the rivers, for continued cooperation and as a first stop for resolution of conflicts.
While Pakistan has rights over the waters of Jhelum, Chenab and Indus, Annexure C of the IWT allows India certain agricultural uses, while Annexure D allows it to build ‘run of the river’ hydropower projects, meaning projects not requiring live storage of water. It also provides certain design specifications which India has to follow while developing such projects.
The treaty also allows Pakistan to raise objections over such projects being built by India, if it does not find them to be compliant with the specifications. India has to share information on the project design or alterations made to it with Pakistan, which is required to respond with objections, if any, within three months of receipt.
Besides, India is allowed to have a minimum storage level on the western rivers – meaning it can store up to 3.75 MAF of water for conservation and flood storage purposes.
The IWT also provides a three-step dispute resolution mechanism, under which “questions” on both sides can be resolved at the Permanent Commission, or can also be taken up at the inter-government level. In case of unresolved questions or “differences” between the countries on water-sharing, such as technical differences, either side can approach the World Bank to appoint a Neutral Expert (NE) to come to a decision. And eventually, if either party is not satisfied with the NE’s decision or in case of “disputes” in the interpretation and extent of the treaty, matters can be referred to a Court of Arbitration.
What have been the past objections raised under the treaty?
While the treaty has been regarded internationally as a successful diplomatic effort which managed to withstand three wars and multiple military impasses between the countries, with both countries largely sticking to its provisions, the journey has not been without conflicts.
The treaty, according to observers, became a source of dissatisfaction between the two countries with growing demand for water, the extensively technical nature of the document rooted in its annexures and the fact that the western rivers flow through the conflicted region of Jammu and Kashmir.
Besides, similar to the objections Pakistan is expected to raise during this year’s meeting, in the past decades as well, it has raised multiple objections under the treaty, over India’s hydropower and dam projects on the western rivers.
One of the longest conflicts that arose from Pakistan’s objections to Indian projects on the western water bodies was over the Kishanganga Hydro Electricity Project (KHEP), which was initially a storage-cum-hydropower project.
Kishanganga also known as Neelum, a tributary of the Jhelum river, originates in J_amp;K and joins the river in Pakistan occupied Kashmir.
The work for KHEP was started in 2007, proposing to build a dam on the Kishenganga, diverting its water for a 330 MW hydropower plant in Kashmir’s Bandipora and sending it back. The work for the project was supposed to be completed by 2016, but before the construction started, Pakistan had raised objections regarding the height of the dam, fearing it would mean increased water storage for India. Consequently, India agreed to alter the design by lowering its height from 97 metres to 37 metres.
In 2010, Pakistan took the matter to the International Court of Arbitration at the Hague, this time, objecting to the diversion of water from Kishanganga. The Court gave its final ruling in December 2013, giving India a green signal for the project, subject to conditions.
The conflict however, did not end here, with Pakistan approaching the World Bank three years later in 2016 and again in 2018, objecting to the design. It also tried to stop the construction of the dam in 2016 by firing shells near the dam site in 2016. The project was then inaugurated in 2018, despite continued protests from Pakistan.
Before that, Pakistan had objected to the Salal dam project in 1970 over design concerns, negotiations for which ended in 1978. This was followed by the neighbouring country’s opposition to the 900 MW Baglihar Hydropower project, which involved the construction of a 150m tall dam on Chenab. The construction for the project started in 1999, but Pakistan raised objections soon after, finally threatening to invoke the arbitration provision in IWT to refer the matter to a Neutral Expert. The NE, Swiss Engineer Raymond Lafitte, gave his decision in 2007, upholding some of Pakistan’s objections while denying others.
What about geopolitical conflicts?
In recent years, the Indus Water Treaty has been brought up a couple of times during geo-political tension between India and Pakistan. In the aftermath of the attack on J_amp;K’s Uri army camp in 2016, Prime Minister Narendra Modi had said, “Blood and water cannot flow simultaneously,” soon after which, the Permanent Indus Commission talks were suspended for that year by the Indian side, which also at one point threatened to walk out of the treaty.
Again in 2019, when the suicide attack was carried out in Pulwama, killing 40 CRPF personnel, India had for the first time threatened to cut off water supply to Pakistan from the Indus River System. Then Water Resources Minister Nitin Gadkari had said that India would stop its share of water flowing to the neighbour, in addition to diverting the water from the Eastern rivers, to supplying it to J_amp;K and Punjab. He had later clarified, however, that restricting Pakistan’s supply would be in violation of the IWT, and required consideration of the Centre’s top brass.
IWT does not have a unilateral exit provision, and is supposed to remain in force unless both the countries ratify another mutually agreed pact.
Navy gets 12th P8I aircraft from Boeing
Aircraft manufacturer Boeing has delivered the 12th P-8I long-range maritime patrol aircraft to the Indian Navy . This completes the follow-on clause for four additional P-8I aircraft contracted in 2016.
“Boeing delivered the 12th P-8I maritime patrol aircraft to India on February 23,” a company statement said.
In May 2021, the U.S. State Department approved the possible sale of six additional P-8I aircraft and related equipment, a deal estimated to cost $2.42 billion. Earlier, in November 2019, the Defence Acquisition Council approved the procurement of the six aircraft. The number was cut down from 10 to six due to budgetary constraints as also the Navy undertaking fleet rationalisation and deciding to go for long-endurance unmanned platforms.
The six aircraft under discussion will come with extensive upgrades, officials had stated. The six P-8Is will come installed with encrypted communication systems since India has now signed the foundational agreement Communications Compatibility and Security Agreement (COMCASA) with the U.S.
The Navy had procured eight P-8Is under a $2.2 billion deal in 2009. The aircraft are part of the 312A Naval Air Squadron based at Arakkonam in Tamil Nadu. In 2016, the Navy exercised the optional clause for four more P-8Is in a deal worth over $1billion. The Indian Navy was the first international customer of the aircraft.
Several complex and mission critical P-8I components such as the radar fingerprinting system, IFF (I/T) and datalink, speech secrecy system, mobile satcom system and wire harnesses were made in India by supplier partners, including Micro, Small _amp; Medium Enterprises (MSMEs) located across the nation, Boeing said.
Boeing is also completing the construction of the Training Support _amp; Data Handling Centre at INS Rajali, Arakkonam, and a secondary center at the Naval Institute of Aeronautical Technology, Kochi, as part of a training-and-support package contract signed in 2019.