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A 2002 article about cancelling the Indus Waters Treaty reads like it was written today

The late Ramaswamy Iyer had argued that abrogating the Treaty defies moral, legal and practical sense

 

 

 

In 2002, after disputes regarding the Tulbul Navigation Project and familiar media hype about whether the Indus water treaty should be cancelled, the late Ramaswamy R Iyer decided that it might “be useful to put the [his] position down in writing”.

 

 

 

 

 

 

 

Even in 2002, Iyer writes in the past tense, assuming that the idea of cancelling the treaty for punishing Pakistan is past the scope of real discussion and would not benefit India on moral, legal or more importantly, practical grounds. 

 

 

Since, similar arguments that Iyer dismissed 14 years ago have been now invoked to call for immediate action and revenge against Pakistan,

 

 

 

 

it is useful to look at Iyer’s argumentation about what a treaty means, whether it is right to abrogate a water treaty as a measure of punishment,

 

 

 

and his assertion that even if we cancel the treaty in the zeal of pronouncing a punishment to Pakistan, the hardship inflicted on Pakistan will be limited and temporary, while the retention of the waters will create trouble for India.

 

 

 

 

 

 

 

 

 

Read Iyer's entire article here: 

 

 

In recent weeks, in the context of the grave deterioration in the relationship between India and Pakistan, with the two countries seemingly on the brink of open war, there were several reports and interviews in the media about whether the Indus Treaty 1960 was likely to be, or should be, abrogated. The present writer had repeatedly to explain the position as he saw it to the media, Indian and foreign (TV and radio channels, newspapers, journals). The crisis seems to have passed, but it might nevertheless be useful to put the position down in writing. But first, a brief explanation about the Treaty would be in order.

In 1947 the line of Partition of the Indian subcontinent cut across the Indus system. There had been considerable irrigation development in the undivided Punjab based on the waters of the Indus system. This was disrupted by Partition and the large-scale movement of people. An understanding on water-sharing between the two new countries formed by Partition became necessary. It was also necessary to facilitate the development of irrigation systems in the western part of Punjab that went to Pakistan. After prolonged talks between the two governments, mediated by the good offices of the World Bank, the Indus Waters Treaty was signed in 1960.

The water-sharing under the Treaty was quite simple: the three western rivers (the Jhelum, the Chenab and the Indus itself) were allocated to Pakistan, and the three eastern rivers (the Ravi, the Beas and the Sutlej) were allocated to India. Certain restrictions were placed on India as the upper riparian. On the rivers allocated to Pakistan, India was not allowed to build storages. Restrictions were also imposed on the extension of irrigation development in India. (On Pakistan, the lower riparian, there were some relatively less significant restrictions). There were also provisions regarding the exchange of data on project operation, extent of irrigated agriculture, and so on. The Treaty further mandated certain institutional arrangements: there was to be a permanent Indus Commission consisting of a Commissioner each for India and for Pakistan, and there were to be periodical meetings and exchanges of visits. Provisions were included for conflict-resolution: differences, if any arose, were to be resolved within the Commission; if agreement could not be reached at the Commission level, the dispute was to be referred to the two governments; if they too failed to reach agreement, the Treaty provided an arbitration mechanism. The settlement also included the provision of international financial assistance to Pakistan for the development of irrigation works for utilising the waters allocated to it, and India too paid a sum of approximately Pounds Sterling 62.06 million in accordance with Article V of the Treaty.

It could be argued that the division of the river system into two segments, one for Pakistan and one for India, was not the best solution, and that there should have been a sharing on all the rivers, or a joint integrated planning and management of the totality of the system by the two countries. However, such possibilities were probably ruled out by the state of relations between the two countries, and the Treaty doubtless represented the best arrangement that was negotiable at the time.

The Treaty has acquired a reputation internationally as a successful instance of conflict-resolution, and is often hailed as such in the literature on the subject. It has been widely noted that it has been working reasonably well despite a difficult political relationship between India and Pakistan, and that it was not abrogated even during periods of war between the two countries. The Indus Commission has been meeting regularly in either country, and the working relationship between the engineers at the commission level is very cordial. Differences do arise from time to time, but these usually get resolved within the framework of the Treaty. Minor differences are settled within the commission, and major disputes go to the two governments. So far, it has not been found necessary to invoke the provisions for arbitration by a third party. An important dispute that arose during the 1970s was regarding the Salal Hydro-Electric Project in Jammu and Kashmir. This was referred by the commissioners to the two governments, and after lengthy and difficult negotiations it was eventually resolved. At present there is an unresolved dispute regarding what is known as the Tulbul Navigation Project (or the Wular Barrage Project). Pakistan objects to this project on the ground that it involves the creation of a storage on a river allocated to Pakistan and is therefore a violation of the Treaty. India argues that no creation of storage is involved; that the proposed barrage will merely head up the waters temporarily, retarding the rapid depletion of flood waters, with a view to extending the period during which navigation is possible; and that the regulation involved will also benefit Pakistan. The inter-governmental talks on the subject have not so far been successful. There is also another old long-pending dispute regarding a run-of-the-river project (Baglihar). Here again there is a divergence of perceptions between the two countries as to the conformity of the project with the Treaty. These disputes too, like the Salal dispute, may have been resolved between the two governments in due course if the circumstances had been normal. Unfortunately, the relationship between the two countries has been very difficult in recent years, and so these disputes have remained unresolved.

Now we come to the question of the impact of the warlike situation between the two countries on the operation of the Treaty. The first question was whether under the prevailing circumstances the Indus Commission would meet at New Delhi on May 29, 2002 as scheduled. If the meeting had failed to take place, there would have been a deviation from the Treaty. The media speculated about the possibility of a cancellation of the meeting, but the meeting took place as scheduled. It is difficult to say whether the suspense and uncertainty were wholly the creation of the media or had any basis in governmental thinking. At any rate, the meeting did take place, and the tradition of the Treaty continuing to operate despite a difficult relationship between the two countries was reinforced.

The second and more serious question was that of the possible abrogation of the Treaty. Here again, it is difficult to say whether the media speculation had any basis in fact. The argument put forward by some was that Pakistan had been inflicting severe harm on India; that something needed to be done in response; that all options had to be explored; and that the abrogation of the Indus Treaty was one such option. One does not know whether any such thinking took place at all in the ministries of external affairs, defence or water resources. Another strand that got intertwined with the question of inflicting punishment on Pakistan was the longstanding dissatisfaction with the Treaty in Jammu and Kashmir. That state has had a grievance that the restrictions on storages on the three rivers allocated to Pakistan have meant that J and K has not been able to utilise the waters of those rivers for its developmental purposes, and that India had failed to keep the interests of J and K adequately in mind while negotiating the Treaty.

Let us take the second point (dissatisfaction with the Treaty) first. The argument was that India should take advantage of the current difficulties with Pakistan to get out of the Treaty. That is a wholly irresponsible and indefensible argument. If a treaty can be resiled from because one party is dissatisfied with it, then no treaty will have any force or sanctity. There is no reason to believe that the interests of J and K were not kept in view while negotiating the Treaty. The negotiations were long and hard, and the Indian team did its best under whatever briefing it had from the government. The Treaty was approved and signed at the highest level. Thereafter, it is simply not open to us to say that it is disadvantageous to India. It is possible to argue that we have not fully used even the leeway allowed by the Treaty, but leaving that aside, and assuming that J and K does have a grievance, that does not warrant the abrogation of the Treaty. Treaties solemnly signed have to be equally solemnly honoured. Difficulties may indeed arise in the course of operation, and some of them might or might not have been foreseen, but the answer is to take them up with the other party within the framework of the Treaty. That is what India did in the case of the Salal project. That approach has doubtless run into difficulties with other projects, but we must keep trying and waiting for the atmosphere to change. Treaties cannot be broken because we are dissatisfied. In the case of the Ganga Treaty with Bangladesh, there is a measure of dissatisfaction in Bihar: should that Treaty too be abrogated?

As for the ‘punishment’ argument, two questions arise: would it be right to abrogate the Treaty as a measure of punishment, and what punishment can be inflicted by the abrogation? The punishment argument might have been difficult to counter if any other kind of treaty had been involved, but a treaty on water is different. Even if there were no treaty, an upper riparian simply cannot cut off river waters flowing to a lower riparian. Under various international conventions an upper riparian has obligations in this regard to a lower riparian. Secondly, the Indus Treaty was mediated by the World Bank and that body is also a signatory. The reactions of the World Bank to the abrogation of the Treaty would have been very adverse, as would have been the reactions of the international community in general. From the position of being praised for the steadfast maintenance of the Treaty, India would have fallen into that of incurring international displeasure for violating a solemn covenant. Other countries with which India has similar treaties (Nepal, Bangladesh) might have found their faith in India shaken and become apprehensive about their own treaties with us.

India would therefore have paid a fairly heavy price for the abrogation, if it had chosen that path: and to what end? As mentioned earlier, even in the absence of the Treaty, there are international conventions on what an upper riparian can or cannot do in relation to waters flowing to a lower riparian: the abrogation of the Treaty would not have made India a completely free agent. However, let us ignore that point and ask ourselves what the abrogation would have enabled us to do. It would have meant the disappearance of the restrictions imposed by the Treaty on India. We could have proceeded with the building of storages on the western rivers. But such projects take years (10 or even 15) to build. The waters of these mighty rivers cannot be stopped or diverted instantly. No immediate punishment of Pakistan would have been possible. We could of course have used old existing structures to retain or divert waters, but only a limited and temporary hardship could have been inflicted on Pakistan through these means. Beyond a point we would have created problems for ourselves by the retention of the waters. We cannot erect instant barriers across the three western rivers; they will continue to flow into Pakistan. Even the eastern rivers (allocated to India) flow into Pakistan and then into the Arabian Sea as parts of the Indus system. It follows that the abrogation of the Treaty by India, while securing for India a great deal of international opprobrium, would not have been a potent weapon in our hands. The only immediate ‘punishment’ on Pakistan would have been the disappearance of a legal, Treaty-enshrined entitlement to the waters of the system and the creation of a measure of uncertainty in the minds of the Pakistanis. Assuming that some punitive measures against Pakistan were called for, the suggested abrogation of the Indus Treaty did not seem a particularly powerful measure. Both on moral/legal  grounds and on practical ones, it did not seem a very good idea.

As mentioned earlier, it is not clear whether such a course was seriously contemplated. The Indus Commission did meet as scheduled. If there was in fact a crisis it seems to have blown over. For the time being at any rate, the Treaty seems to have managed to survive the strain this time also. However, outstanding disputes are of course unlikely to get resolved in the near future.

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