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Indus Waters Treaty

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As international opinion turns against state-sponsored terrorism from Pakistan, India has to be prepared for renewed pressure to re-engage in a dialogue on all issues, including Kashmir. Broadening the agenda is the time-tested diplomatic approach to such negotiations and the inevitable give-and-take. India’s graded response on allocation of Indus waters should be ratcheted up, beyond use and dispute resolution, as the treaty is not functional in the current setting.

Chairing a meeting to review the Indus Waters Treaty (iwt), following the terrorist attack on an army camp in Uri in September 2016, Prime Minister Narendra Modi decided on greater use of the rivers allotted to India. In Uri, 17 soldiers died and now in Pulwama, 44 jawans of the Central Reserve Police Force (CRPF) were killed by a terrorist. Clearly, the approach to the treaty provisions needs further review, this time on the principles of water allocation as they are not equitable.

On 1 February 2019, a three-member delegation of Pakistani experts concluded an examination of the 1,000 megawatt (MW) Pakal Dul, 48 MW Lower Kalnai, 850 MW Ratle hydropower projects and the 900 MW Baglihar dam at the Chenab basin and found them to be operating according to the design. India also shared data about planned run-of-the-river
hydropower projects at Balti Kalan, Kalaroos and Tamasha in the Jhelum and Indus basins. The last time India had shared such data was in 2013. Then came the terrorist strike on 14 February 2019.

Under theIWT, signed in 1960, India has control over water flowing in the eastern rivers—Beas, Ravi and Sutlej—while Pakistan has control over the western rivers of Indus—Chenab and Jhelum. Of the total 168 million acre-feet of the Indus basin, India’s share of water is 33 million acre-feet or just 20%. India uses nearly 95% of its share. The deal was brokered by the World Bank after nine years of negotiation.

Pakistan sought a guaranteed source of water, independent of Indian control. It interpreted sovereignty on the principles of maintaining status quo, or “prior appropriation.” In other words, since the people of Pakistan were already using this water, they have a claim on it and any curtailment by India would be an
attack on its sovereignty.

International water treaties do not recognise the validity of this principle. This doctrine implies “recognition of an international servitude upon the territory of one nation for the benefit of the other and would be entirely inconsistent with the sovereignty of the upper nation over its national domain.”

The Government of India during the negotiations had adopted the position that the Indus dispute should not be settled using existing legal rights, but by accounting for potentialities of river development. India argued for an engineering, rather than a legal basis. Article XI(1) read, “Nothing in this Treaty shall be construed as affecting existing territorial rights over the waters of any of the Rivers or the beds or banks thereof.” India has not relinquished its sovereign claims over the riverbeds.

India’s first major concession was the agreement itself. Pakistan was allotted 80% of the Indus waters. Instead of any scientific rationale, sharing of water from the six rivers of the Indus river basin is based solely on the division of rivers.

The second concession India made was to allow free-of-cost water flows into Pakistan. The 1948 Inter-Dominion Accord provided for Pakistan making payments for water based on the legal principle of India “owning” this water.

The third concession was to relinquish 13 of the 16 pre-partition Punjab’s canal systems, though much of their river-heads were located in Kashmir, and to pay Pakistan $174 million for new works. The Indus Basin Development Fund Agreement specified the total cost of works in Pakistan to be $893.5 million. A consortium led by the United States (US) and the United Kingdom provided most of it as grants. Cold-war politics played a central role in heavily tilting the treaty in Pakistan’s favour. Pakistan was aligned with theUS while India tilted towards the Soviet Union.

The international context is now fundamentally different. With the United Nations Security Council supporting India’s position on cross-border terrorism, the time is ripe to push for reciprocity. Climate variability is another new factor. Snowmelt and glacier melt comprise a significant portion of the water supply, and warming could increase variability of flows affecting seasonal requirements for agriculture as well as resulting in flooding.

The fundamental flaw in the treaty is that Pakistan has not kept with its side of the grand bargain. The expectation that solving the Indus waters issue was a first step on the way to a Kashmir settlement has not been achieved.

The treaty needs to be brought in line with other such bilateral treaties. It will not be easy as both countries have to agree, but a beginning should be made for shifting from “distribution” to “sharing” of the Indus waters.

Mukul Sanwal

noida

Updated On : 15th Mar, 2019

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