Indus Waters Treaty: Looking Back, Looking Ahead

Uttam Kumar Sinha - Senior Fellow, Manohar Parrikar Institute for Defence Studies and Analyses, and author

Introduction

The Indus Waters Treaty (IWT) signed in 1960 between India and Pakistan, despite having functioned for 63 years, is, in the current political context, troubled. Well-wishers of the Treaty—like those who champion an India-Pakistan dialogue—often dub it as “uninterrupted and uninterruptible”. The World Bank, as a third party—pivotal in facilitating the IWT—is feeling the heat and erring in judgement¹ while observing the implementation of the Treaty. The role of India as a responsible upper riparian state abiding by the provisions of the Treaty, has been consistent, but it is under pressure to rethink the extent to which it can commit itself as its overall political relations with Pakistan become intractable. It is also important to underline that the reason the Treaty has remained ‘uninterrupted’, is because India allows it to work. This also means that the Treaty can become quidquid voverat atque promiserat (null and void) if India decides to make it so. However, for this to be achieved, several politico-security and hydrological factors need to be determined as also a political consensus to abrogate the IWT in which India has invested politically and financially.

Every now and then there is a clamour for abrogating the Treaty as a response to Pakistan’s support to cross-border terrorism. Inevitably, the discourse shifts away from the rationality of sharing the waters with Pakistan to using the shared rivers as an instrument of coercion and a tool of punishment. What emerges in the water debates with Pakistan is an interesting interplay between India’s justifiable anger over Pakistan’s support to cross-border terror and correcting the history of Indian generosity. Importantly, it reopens the past and with it, the re-examination of the IWT—both the context in which it was framed and the text that was negotiated.

It is remarkable that the IWT has survived the tumultuous relationship between India and Pakistan. That the Treaty has lived is because India respects being its signatory and values trans boundary rivers as an important connector in the region both in terms of diplomacy and economic prosperity. There have been several occasions—the Indian Parliament attack in 2001, the Mumbai terror attack in 2008, the terrorist attacks in Uri in 2016 and the 2019 Pulwama attack—which could have prompted India, within certain conditions, to contemplate withdrawing from the IWT. However, on each occasion, based on its cost-benefit assessments, India chose not to.

Looking back

Partitioning the Indus River system, comprising the six rivers, was inevitable after the partition of India in 1947. The sharing formula, devised after prolonged negotiations and with the World Bank’s good offices, divided the Indus system into two halves. The three western rivers (Indus, Jhelum and Chenab) went to Pakistan and the three eastern rivers (Sutlej)², Ravi and Beas) were portioned to India. Equitable it may have seemed, but the fact remained that India conceded 80.52 per cent of the aggregate water flows in the Indus system to Pakistan. Probably it is the only Treaty in the world that was not only volumetric (water-sharing) but also partitioning. India also gave £62 million to Pakistan to help build replacement canals from the western rivers. Such generosity is unusual of an upper riparian.

Did India compromise its position? This is a query raised in retrospect. Water was critical for India’s development plans, irrigation facilities and power. It was crucial, therefore, to get the waters of the eastern rivers for the proposed Rajasthan canal and the Bhakra Dam. Without these waters both East Punjab and Rajasthan would be left dry, severely hampering India’s food production. India’s Prime Minister Jawaharlal Nehru, while inaugurating the Bhakra canals described it as “a gigantic achievement and a symbol of the nation’s energy and enterprise”. In Pakistan, however, it was an occasion for the expression of strong resentment. Nehru was always conscious that the Bhakra canals should not be at the cost of reduced water supplies to Pakistan. However, he was also very clear that India’s interest on the eastern rivers should be protected. Nehru at a public meeting in Bangalore stated: “So far as Pakistan and India are concerned, I have been convinced that the only policy we should pursue is one of friendship with Pakistan. So, we have consistently pursued that policy. Naturally, that does not mean that we should abandon our vital interests. That is not the way to seek friendship.”

On the Indus waters, Nehru in the same speech goes on to say, “The Indus water dispute is one of the differences still to be settled between India and Pakistan. On all these issues India pursues a policy of candour and regard for human needs on both sides of the border and is always willing to negotiate in a friendly spirit to the end that she and Pakistan should someday come to live on their sub-continent as amicably and cordially as the United States and Canada live in North America.”¹

It is interesting to note that India’s negotiating approach was in clear contrast to the position on the Farakka barrage on the Ganga in East Pakistan (which later became independent Bangladesh). Pakistan in 1951, had objected to India’s plans, fearing that such a barrage would reduce the availability of water for projects in East Pakistan. Several notes were exchanged and in 1957 Pakistan even suggested taking the matter to the UN. But India did not budge an inch.

Soon after the signing of the IWT, Nehru and Pakistan’s President Ayub Khan discussed the Farakka barrage in London in 1961, but nothing concrete was decided. A number of expert-level meetings were held between 1960 and 1969 but the issue remained unresolved until 1996, when India and Bangladesh signed the Ganges Water Treaty.

Clearly, due to its strategic location and importance, the Indus basin attracted far more serious attention than the Farakka issue. The Indus tributaries passed through Jammu and Kashmir (J&K) which had received, by then, considerable international attention.

In fact, David Lilienthal, the US public administrator who headed the Tennessee Valley Authority and later the Atomic Energy Commission, wrote in August 1951 in the US magazine Collier’s after visiting India and Pakistan, that the two countries were on the edge of a war over Kashmir and the US might be drawn into it. Lilienthal had feared that “another Korea is in the making.”²

While in India the IWT is perceived to be highly generous towards Pakistan, the view in Pakistan has been radically different. The main impression in Pakistan has been that the loss of the eastern rivers was irreparable. Commentators such as Bashir Malik have challenged the Treaty’s provisions, saying that it was Nehru who manipulated the Radcliffe Award to ensure that the headworks of Ferozepur remained in India.³ Malik grieves that the signing of the Standstill Agreement and the Delhi Agreement was a colossal error, which in the end cost Pakistan its rights over the eastern rivers, and goes on to say that India’s negotiation tactics were superior to those of Pakistan.⁴ He also questions the World Bank’s motive behind the 1954 plan, as it was well aware that the loss of the eastern rivers would be “a rude shock to bear with [for] Pakistan.”⁵ Malik writes: “It would seem as a tactical strategy to assure her, though falsely, of availability of enough flow of waters of Western Rivers.”⁶ He adds that the Bank’s proposal “incorporated the core elements of the Indian plan. In fact, she gained much more than she could ever imagine ... She got away with the total flow of 33 million acre-feet (MAF) virtually for a song.”⁷

Current Situation

What is disputable today has nothing to do with water-sharing, which is settled under the Treaty, but whether the Indian projects on the western rivers, in particular Jhelum and Chenab, as Pakistan claims, conform to the technical stipulations.

Storages on rivers indeed create anxiety for lower riparian states and the IWT’s provisions factor in the water supply concerns of Pakistan. It must be noted that there is not a single storage dam that India has built on the western rivers even though the IWT allows storage entitlement of up to 3.6 MAF (million acre feet). However, this is being corrected by the Modi government since 2016. Each project, in accordance with the IWT, requires India to provide specified information to Pakistan at least six months before the commencement of the works.

Clearly the question of India acquiring capacity to manipulate or withhold the flow of water is, under the IWT’s provisions, not only untenable but can also be monitored. Pakistan’s objections to the projects over several decades have been tactical and less technical. Its objective principally has been to stall any water development projects in Kashmir. A prosperous and developed Kashmir increasingly locked to mainstream India is an anathema to Pakistan’s leadership.

Pakistan has cleverly used its lower riparian position to garner international sympathy and domestic incapability. The country receives 67 per cent of international waters, making it a boxed-in lower riparian not only with India but also with Afghanistan vis-à-vis the Kabul River. The leadership articulates its vulnerability and victimhood by raising water as a “lifeline” issue, suggesting clearly that the sharing of the waters with India still remains unfinished business.

A section of Pakistan’s political-military leadership, given its feudal and industrial background, believes that the water issues not only help divert attention from Pakistan’s inefficient water management policies and inter-provincial water disputes between Punjab and Sindh but would also provide a “back door” for international involvement, once again, in the Jammu and Kashmir dispute.

The raison d’etre of the IWT was precisely to de-link the water issue from territorial disputes and settle any differences within the mechanism of the Permanent Indus Commission (PIC), with one commissioner from each country to implement the treaty as well as settle differences and disputes by agreement, neutral expert, court of arbitration or any other manner as agreed. The commissioners have met at least once a year except in 2020, when the meeting was cancelled due to Covid-19. India’s leadership and water development planners in the 1970s lost much ground to Pakistan on the interpretation of IWT when it came to various projects on the western rivers (Indus, Jhelum and Chenab). India conceded to Pakistan’s objections, for example on the Salal Hydroelectricity Project and then later the Tulbul navigation. The adjustment on the height of the Salal resulted in huge siltation of the dam and the Tulbul waterway even till today remains shelved.

The fact, however, remains that the provisions of the treaty entitled for India on the western rivers remain woefully unutilised both in terms of storage capacity and hydropower generation. After the effective abrogation of Article 370 of the Indian Constitution, the current NDA government, which realises water as a means to socioeconomic ends, has fast-tracked a number of multi-purpose river projects in Kashmir including a ₹5842 crore investment for the 850 MW Ratle project. The NHPC expects to install 3800 MW of projects with an investment worth ₹2,300 crore for J&K. It is estimated that hydropower on the Chenab will triple in the coming years. India has done well in recent times to communicate, in no uncertain terms, to the international community and even to the World Bank, as the third party to the treaty, that riparian sympathy towards Pakistan is misplaced.

In January 2023, India issued notice to Pakistan for its continued “intransigence” on implementing the Indus Waters Treaty (IWT), signed in 1960. India’s argument is that there cannot be “two separate processes” to resolve differences over the Kashmir-based Kishanganga and Ratle Hydroelectric Projects on the Jhelum and the Chenab and considers such actions as a ‘material breach’ of the Treaty. India’s notice to Pakistan, probably for the first time, called for negotiations on modification of IWT. India would like to relook certain annexures relating to dam designs as well as the dispute resolution mechanism, given its legitimate water development projects on the western rivers (Indus, Jhelum and Chenab). Article X of the IWT mentions “modification of the provisions”. Pakistan would not like to enter any renegotiations given that it extracted a more than favourable Treaty. Any mutually acceptable modifications would require both to abide by the letter and the spirit of the IWT.

One principal reason why the IWT has been robust is the in-built “difference and dispute resolution”. Article IX has a three-step graded mechanism. If the two sides cannot resolve a ‘question’ or ‘difference’ bilaterally, then it becomes a ‘dispute’ and is referred to either a Neutral Expert (NE) or the International Court of Arbitration (ICA)³. Technical differences are referred to an NE with a provision of court of arbitration. Clearly, Pakistan’s rather well-styled infringement is political and not technical and solely intended to stymie much-needed hydroelectric projects in Kashmir by taking the matter from the bilateral and technical ambit to the ICA. Such positioning might seem foolhardy, but rationality does not come easy to the Pakistani establishment with issues concerning India being deeply politicised and securitised.

Interestingly, the framework for arbitration would not have come about had it not been for the intervention of Zulfikar Bhutto, the Oxford-educated lawyer who had joined Pakistan president Ayub Khan’s cabinet as the minister of water, power, communication and industry. Bhutto played an active role in the final phase of the Indus treaty negotiations but more significantly, his statement in the United Nations (UN) as a member of the Pakistan delegation, drew a crucial link to arbitration. A Soviet draft resolution on the question of defining aggression was put forward in the UN General Assembly in October 1957, and Bhutto said that “economic aggression or indirect aggression is perpetrated if lower riparian is deprived of natural rights in use of rivers which flow through two or more countries.”

What should India do?

There have been debates in India about: (a) the need to replace the Treaty with another improved one (Indus Water Treaty-II), (b) to abrogate it and (c) to utilise the provisions of the Treaty to inflict pain on Pakistan as a countermeasure.

Those advocating revision argue that the Treaty is outdated in the sense that it does not take into account new realities and grounds for cooperation (proper survey of the basins for better exploitation of water resources; reconsideration of the interests of Kashmiris whose interests were overlooked; and new technologies being used for dam-making, de-siltation and ecological issues, among others) and hence begs for revision.

On the other hand, the advocates of abrogation argue that the Treaty has unjustly signed away more waters to Pakistan than it rightfully deserved and has not ensured friendly behaviour from Pakistan. Moreover, it has taken undue advantage of the relevant clauses of the Treaty to stall and delay power and navigational projects in the state of Jammu and Kashmir which has hurt the interests of the people of Kashmir. Therefore, India should abrogate the Treaty unilaterally in response to irresponsible and hostile behaviour demonstrated by Pakistan ever since the Treaty was signed.

But there is a third perspective that centres around the optimal use of Treaty provisions. Those advocating this hold that India has been quite generous in not using the provisions of the Treaty to good effect (to store water granted by the Treaty to India) especially at a time when the problem of water scarcity has started haunting Pakistan.

In view of the third perspective, adequate attention must therefore be paid to harness maximum possible water from these rivers through multi-purpose projects. Under the NDA government (2014-2019) projects like the Ujh (storage of 0.82 MAF) and Shahpurkandi Dam (0.012 MAF) and the 2^nd Ravi Vyas Link Project, on the eastern rivers, which can harness water flowing across border to Pakistan (about 0.58 MAF in non-monsoon period), but which were hanging fire, have become a national priority. Shahpurkandi Project on the Ravi River seeks a total production capacity of 206 MW. Jammu and Kashmir will get 20 per cent of power generated from this Project.

On the western rivers, the “permissible storage capacity” as per the Treaty provisions has not been given serious attention in India. One of the projects identified for storage purposes is the Bursar Multipurpose Project on the Marusudar river (the main Tributary of Chenab) in Kishtwar district of Jammu and Kashmir. It will store about 1 MAF, produce 800 MW of electricity and irrigate about 100,000 hectares. The second multi-purpose project being planned is the Gyspa on Bhaga River (Chenab Main) in Lahul & Spiti District of Himachal Pradesh. It is supposed to store water (0.74 MAF), produce 300 MW of electricity and irrigate 50,000 hectares of land. The Tulbul Navigation Project, which remains stalled, must now be completed. Pakistan, as explained earlier, termed this navigation project a violation of the IWT.

It will be worthwhile for New Delhi to engage the local government with a view to building pressure from the Kashmiri people for the execution of projects on the western rivers which will boost the local economy. Due attention must be given to raise popular awareness over the issue and expose Pakistani resistance to such developmental projects in the state.

The World Bank also needs to ponder its role. A much valued ‘third-party’ in the treaty negotiations and functioning, it tends to lend itself to larger geopolitical dynamics. By simultaneously appointing an NE on India’s request and setting up the court of arbitration, goaded by Pakistan, it has committed a gross procedural violation. The World Bank needs reminding that it is a facilitator and not an arbitrator on differences and disputes between India and Pakistan.

Conclusion

Modification may or may not happen. Will India then suspend the treaty? The best option for India is to fulfil the IWT’s provisions, particularly on the western rivers. The Treaty allows storage up to 3.6 MAF and 13.4 lakh acres of irrigation. Many projects now underway will achieve the “permissible capacity”. Any move to abrogate the IWT without first optimising the provisions of the Treaty is hardly pragmatic.

(Some of the views have been expressed earlier. The article has been modified for publication by NatStrat)

References:

1.   Nehru’s speech is quoted in Niranjan D. Gulhati, The Indus Waters Treaty: An Exercise in International Mediation, Allied Publishers, Bombay, 1973, pp. 160-161.

2.   David E Lilienthal, ‘Another Korea in the Making?’, Collier’s Weekly, August 1951, pp. 22-23, athttp://www.unz.com/print/Colliers-1951aug04-00022.

3.   Bashir A. Malik, Indus Water Treaty in Retrospect, Brite Books, Lahore, 2005, p.67.

4.   Ibid.

5.   Ibid, p.161

6.   Ibid.

7.   Ibid., p.169