In my previous column, I discussed why it is geographically inaccurate to describe India as the upper riparian state for every river. In the case of several major rivers, India itself is a middle riparian state when viewed in relation to China. But even if, for the sake of argument, we assume that India is the upper riparian state on a particular river, does that fact alone give it the right to stop the flow of water to the downstream state? In other words, does India’s position as an upper riparian state make it the owner of the water that flows through its territory into Pakistan? Does an upper riparian state own the water that passes through its borders?

Until the end of the nineteenth century, there was no universally accepted answer to the question of who had the primary right over the waters of a river flowing through several countries. Some states argued that the country through which the river first passed was its rightful owner. This line of thinking gave rise in 1895 to what later became known as the Harmon Doctrine.

The doctrine emerged during the dispute between the United States and Mexico over the Rio Grande. At the time, U.S. Attorney General Judson Harmon argued that because the river first flowed through American territory, the United States enjoyed absolute sovereignty over the waters within its borders, and Mexico had no legal claim over them.

The doctrine reflected the prevailing American outlook of the time. A country that had rarely shown much restraint in exploiting the resources of others was hardly inclined to concede limits over its own. International law, however, never accepted this proposition. The reason was straightforward. If every upper riparian state were allowed to withhold water from downstream countries at will, no international river in the world would remain free from conflict.

The doctrine was so deeply flawed that, over time, even the United States quietly abandoned it in practice. Today, America’s water-sharing agreements with its neighbours are based on the very principles the Harmon Doctrine rejected. The United States now accepts that an upper riparian state is not the owner of the water flowing through its territory.

So when India argues that, as an upper riparian state, it has absolute authority to stop the flow of water, it is effectively relying on a doctrine that international law has never recognised and that has long since been discarded.

In 1966, the International Law Association adopted the Helsinki Rules. Although they were not legally binding in the same way as an international treaty, they marked the first comprehensive effort by leading jurists to establish that international rivers are not the property of any one state. Instead, every riparian state has the right to make equitable and reasonable use of their waters.

An important distinction must be understood here.

The Helsinki Rules did not call for equal distribution. They called for equitable distribution. The difference between the two is fundamental.

If three countries lie along the same river, international law does not require each to receive one-third of its waters. Instead, it considers a range of factors, including population, agricultural needs, historical use,........

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