India, Pakistan, and a History of Water Sharing: Revisiting the Indus Water Treaty

Legal and political considerations make flouting the Indus Water Treaty easier said than done.

 

Besides using the abrogation of Article 370 during campaigns for the recently-concluded assembly elections, Prime Minister Narendra Modi furthered his nationalist rhetoric, promising the Haryana electorate that he would stop the flow of the Indus River into Pakistan, and instead redirect its waters into the state. 

The Pakistani government responded to Modi’s claims, stating that any attempt to divert the flow of the Indus would be considered an act of aggression. Tensions between the two neighbours have become increasingly strained since the decision to split Jammu and Kashmir into two union territories—diplomatic ties have been downgraded, foreign envoys have been sent back, and bilateral trade has also reduced. However, this is not the first instance that the Indus Water Treaty (IWT) has been threatened during times of increased tension. Scrapping of the IWT was discussed by the Indian government after the attack on Parliament in 2002, and also after the Uri skirmish in 2016, when Modi famously said that “blood and water cannot flow together.”

Through this reading list, we provide a historical background to the IWT, examine if it has successfully mediated conflicts arising due to water security, and also investigate the legal implications of India attempting to exit the treaty.

1) Why Was the IWT Necessary?

When undivided India was partitioned in 1947, the Indus river system was effectively cut into two. Ramaswamy R Iyer writes that at the time, it was necessary to develop irrigation networks in western Punjab, now a part of Pakistan. Thus, the two governments decided that Pakistan would have access to the Jhelum, Chenab and the Indus itself, while India would use water from the Ravi, Beas and Sutlej rivers. 

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.

2) Has the Treaty Been Previously Flouted?

While the Pakistani delegation that inspected the Baglihar Hydroelectric Power Project (BHPP) in 2019 called their visit a “success,” the project has previously been a source of contention between the two countries. Muhammed Siyad A C writes that in 2003, Pakistan opposed the construction of a “gated structure” that could alter the flow of water into the country. However, India’s purpose of the BHPP, to generate electricity for the Jammu and Kashmir region, would be negated if it could not have some control over the flow of water. 

The gates to which Pakistan is objecting are part of any hydroelectric project. The removal of gates would mean the end of the BHPP. Obviously, India’s assurance has been to no avail … Pakistani concerns are only partly about water sharing; they are more over security aspects. The Indian position is that the security fears are misconceived, as India cannot flood Pakistan without flooding itself first. Presumably, one can relate the Pakistani objections to BHPP to the then prevailing political climate between India and Pakistan on Kashmir issue rather than on technical and legal aspects under IWT.

Even though negotiations with Pakistan were ongoing, and a neutral expert from the World Bank was called to mediate, India went ahead with the construction of the dam. Pavan Nair says that this was a violation of the spirit, if not the letter of the IWT.

While accepting some of the points in favour of India, the neutral expert raised the intake point for the turbines by three metres and reduced the freeboard by one metre. Though these may be considered minor changes, the implication was that the Indian design was aiming to impound more water than what was permitted by the IWT. In any case, Pakistan had learned a lesson for the future since its basic objection was to the construction of the dam itself and not to run-of-the river projects like Uri 1 on the Jhelum where the river had been diverted through tunnels to drive the turbines. The mechanism of the IWT was, thus, ineffective in resolving the issues raised by Pakistan, one of the signatories, to its satisfaction.   

3) Is the IWT an Example of ‘Successful’ Conflict Resolution?

The notion that the method of division of the water is beyond dispute for both countries is false, argues Majed Akhter. While the IWT is unique for deciding upon water-sharing on the basis of location rather than quantity of water, this could prove to be problematic in the future.

Location does not constitute a total geography of a river—the relationship between river and society is contingent upon much more. Population growth, advances in technology and climate change are just three dynamic factors shaping this geography. Just because the rivers do not shift relative position does not mean the socio-legal reality the treaty represents cannot change … The IWT drafted and implemented by engineers, could be seen as especially “neutral” and objective, and therefore, any discussion outside its framework is “politicised.” This is a view of law as a formal, abstract logic which contains principles that can be generalised to all situations. Put another way, the law operates autonomously from the social situation that produces and interprets it. 

Further, Akhter writes that the idea that technology can solve sociopolitical conflicts is flawed. Within the context of Kashmir, Akhter argues that resolutions arrived at via the IWT can only defer the possibility of future conflict, not eliminate it.

The important questions about the Indus waters are not about how the Pakistani state is crafty or the Indian state is a bully—although these are important (if here crudely stated) geopolitical considerations. What about the people of greater Kashmir? While Pakistan and India rush to build dams in the region, people who live there continue to see their land cynically territorialised by Pakistan and India. Are we to believe that one of the most heavily militarised regions in the world will benefit in a democratic and equitable way from dam construction?  

4) Can India Withdraw from the IWT?

Asma Yaqoob argues that exiting the IWT is easier said than done. Legally, the treaty is a “non-exit” partnership, and any concerted attempt to deny Pakistan access to the Indus’ water would also damage India’s global reputation. A unilateral withdrawal would not sit well with China and Nepal, with whom India is a recipient of water sharing treaties.

There have been discussions in the regional and international mass media over the issue, but a more candid analysis rely on the proof of history that the Indian government is only involved in using threats and pressures to bow down Pakistan on the issue of Kashmir. Real abrogation is not an easy step, and India is well aware of the political implications of such a move. It would attract a lot of criticism from world powers, besides weakening Indian position in relation to other riparian states in the region.

Further, Yaqoob contends that any attempt to block water or divert water from Pakistan would run foul of international law. 

Rejecting the unilateral right of withdrawal at will, the International Law Commission (ILC) further clarified invoking certain grounds to terminate or depart from a treaty in an official commentary: “The formula ‘invoke as a ground’ is intended to underline that the right arising under the article is not a right arbitrarily to pronounce the treaty terminated” (Brilmayer 2010–11) ...  An analysis of some of the relevant articles sums up an interesting deduction. Invoking Article 46 means that India would have to provide adequate justification, if any, of the IWT provisions that violate its internal law of fundamental importance. Question could be raised over any Indian attempt to use this ground that why India has been planning and utilising water works under the same provisions for more than five decades if a violation was manifest in application of her significant internal laws.   

5) Then, Is Talk of Scrapping the Treaty Mere Optics?

Ramaswamy R Iyer writes that even if India pulls out of the IWT, its effect would be largely symbolic. Iyer argues that in the absence of a treaty, international law would dictate what an upper riparian state could or could not do vis-á-vis water flow. Further, Iyer writes that it is unrealistic to assume that India could have the institutional capacity to store water from the Indus.

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.  

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