Continuing Indus Water Disputes

Waters of discontent


India should press Pakistan for a review of the Indus Waters Treaty, says M.S. Menon


PAKISTAN’S recent attempt to hoist the Indus waters issue in the framework of the proposed composite dialogue process is a shrewd approach to divert public attention from the recurring water scarcity in many parts due to mismanagement of its resources.



A Tribune Special

Waters of discontent

India should press Pakistan for a review of the Indus Waters Treaty, says M.S. Menon
PAKISTAN’S recent attempt to hoist the Indus waters issue in the framework of the proposed composite dialogue process is a shrewd approach to divert public attention from the recurring water scarcity in many parts due to mismanagement of its resources. From past experience, Islamabad has learnt that by accusing New Delhi of impeding Indus flows with projects in violation of the Indus Waters Treaty (IWT) provisions, it could escape criticism for giving preferential treatment to north Punjab by depriving water to some states and for its failure to build and maintain adequate storages to meet shortages.
Though Pakistan is aware that IWT has the mechanism of a Permanent Indus Commission to settle disputes between the two countries, it also knows that raising the issue in a different forum is a politically safe move to thwart Indian attempts to construct projects for infrastructure development in Jammu and Kashmir.
The IWT is hyped internationally as a model for sharing waters of trans-boundary rivers among co-basin states. The treaty is said to be a unique example of successful conflict resolution in international water disputes, particularly its inbuilt resilience to survive two wars. With Pakistan urging India recently to include the issue of water sharing in the agenda for talks to ventilate its unhappiness on the allocation, attempts are again being made to vindicate the fairness of the treaty. According to the fresh line of argument by some analysts, as both India and Pakistan are unhappy about the allocation, questions could be raised over the fair division of waters.
Apparently, the real facts in the treaty are concealed. In reaching conclusions, it has not followed any existing principles of law nor any prevailing theories as such — it is unique in ignoring accepted international practices.
The river basin extends over an area of 11,65,500 sq km with seven major tributaries draining areas of China, Afghanistan, India and Pakistan. However, in this treaty aimed at achieving the optimal development and utilisation of the Indus waters, the requirements of China and Afghanistan were ignored. For unexplained reasons, contribution of one tributary, the Kabul river, was combined with the Indus; and to give an impression of apparently equal share distribution, the resultant six tributaries were equally divided between India and Pakistan.
Accordingly, Pakistan got the western rivers (the Indus along with the Kabul, Jhelum and Chenab), and India, the eastern rivers (the Ravi, the Beas and the Sutlej). Consequently, the then assessed irrigable area of 39 million acres in India had to remain satisfied with the available water of 32.8 million acre feet (MAF) while Pakistan’s 26 million acres of irrigable area got a large quantum of 135.6 MAF of water from the Indus under the treaty. The fundamental principles of equitable distribution of the water resources were thus thrown to winds, thereby making a mockery of the model treaty.
Interestingly, while other similar international treaties executed elsewhere had a fixed period of validity, the IWT has no such fixed timeframe and hence is a permanent agreement with no exit option.
India was never happy with the Pakistan-biased conditions in the treaty, but agreed in the interest of peaceful neighbourly relations and early settlement of the dispute since the World Bank had brokered the treaty. The disenchantment is growing since the unprincipled method of allocation resulted in India getting only 20 per cent of the Indus waters against its rightful share of more than 40 per cent, causing water scarcity in Punjab, Haryana and Rajasthan due to constraints imposed by the IWT on water use.
Further, frequent wrangling in the interpretation of the treaty’s clauses affected India’s development plans in Jammu and Kashmir. For example, the construction of the Wular project on the Jhelum to provide cheap water transport had to be stopped due to Pakistan’s objections. The Baglihar hydel project got delayed only due to manipulations by our neighbour. Now it is targeting to delay the Kishan Ganga hydel project by making it a subject of endless debate.
Having raised the bogey of IWT violations, Pakistan has been successful in stalling or delaying about 27 projects planned for the development of Jammu and Kashmir. Consequently, of 8769 MW of estimated hydro potential from these rivers, India has been able to tap only 1500 MW so far.
Despite these limitations, India tried its best to make the treaty a success, accommodating Pakistan’s tantrums. The treaty could survive the tempests of history only because of the conciliatory spirit shown by India. However, this is being considered as a weakness, encouraging Pakistan to take up the issue frequently in various forums to malign India.
Now with China having started its dam project in its part of the basin, the river flow patterns downstream are bound to be affected. India should view this seriously in the light of past experience in the Sutlej basin. In August 2000, flash floods left a trail of destruction in Himachal Pradesh. Prior to that, in the summer months, there were reduced river flows into the Bhakra reservoir, an unusual feature during the snow-melting season. The causes were not known then but were presumed to be due to Chinese construction activities in the river upstream. Again, in 2004 and 2005, heavy flows from China caused panic in India and even necessitated the closure of the Naptha Jhakri project for a couple of days.
Of late, Pakistan is blaming India for shortfalls in Indus flows even though they are aware of Chinese structures upstream which affect the flows. The experience of Thailand and other co-basin states of the Mekong basin due to operations of the Chinese dams upstream should also be a lesson to us. The indiscriminate upstream reservoir operations by China affected their agriculture, fisheries and tourism projects. The flood flows released from its reservoirs inundated many lands in these states. China never bothered about their protests and the Mekong River Commission (MRC) could not do much on the complaints of these states as China is not a member of the MRC.
Likewise, China is not associated with the IWT. Of the four co-basin states, India and Pakistan are only parties to the treaty. As such, there are no river water agreements between China and these countries except for a joint declaration made in 2006 between India and China to share the hydrological data of such rivers.
The existing international laws on trans-boundary rivers being weak, it is highly essential to have proper water-sharing agreements among the co-basin states to avoid future conflicts in the Indus basin. Hence, a comprehensive review of the IWT is a compelling necessity to address the changing geopolitical situation and emerging international norms for sharing these rivers. India has to press Pakistan for such a review.
If Pakistan does not agree for a review, India must draw its attention to relevant articles of the Vienna Convention on the Law of Treaties, 1969, to which it is also a signatory. Article 31 inter alia states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context in the light of its object and purpose. In this case, the stated purpose is to achieve optimum development and utilisation of the Indus waters.
If Pakistan still does not accept our request for the review, India has to draw its attention to Article 62 of the Convention which permits terminating or withdrawing from the treaty due to a fundamental change of circumstances. India can exercise this option since this change has now occurred with China entering the scene to exploit Indus waters in its territory.
The increased demand for water from the Indus system is already triggering disputes among the basin states in India while Pakistan is blaming us for its water woes even when its surplus flows are discharging into the sea unused. It is therefore for India to seize this opportunity to call the bluff and insist for the review of the treaty taking into account the changes that have occurred since 1960.

(The Tribune,dated, 4th April, 2010)