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

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.

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INDUS WATER TREATY

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