The Indus Waters Treaty-
Changed Ground Realities Necessitate
A Review
M.S.Menon.
Former Chief Engineer, Central Water Commission
(Journal of the United Service Institution of India, Vol.CXLIV,No.597, July- September,
2014)
Introduction.
The history of the
Indus Waters Treaty (IWT)entered into by India and Pakistan is the
tragic story of a water sharing
agreement that began with hope , but continued in precipitating the disputes,
as demonstrated by the events that followed. IWT was signed in 1960 by the two
countries at the instance of the World
Bank with the aim of achieving the
optimum development and utilisation of the Indus waters. However, it failed miserably not only
in accomplishing the objectives, but also in settling the disputes between the
two for more than 5 decades since its inception . With China also claiming its
rights in the basin, it is high time the Treaty is reviewed to include the
aspects of modern technologies ,environmental
issues and equitable water allocation, lack of which is causing the continued
bickerings. Instead of waiting for the simmering hostile situation erupting to
volcanic proportions, we should prevail on our neighbour to agree and review
the Treaty provisions to ensure peaceful neighbourly relations.
Back ground of the dispute.
The Indus basin drains an area of about 1.2 million square
kms. of which 13% lies in Tibet and Afghanistan, 28% in India and 59% in
Pakistan. It has an average annual yield
of 207 billion cubic metres (BCM). Partition resulted in the division of the
Indus basin between India and Pakistan in 1947, creating disputes on the
sharing of the Indus waters. Continued negotiations between the two held under
the auspices of the World Bank ultimately culminated in the signing of the IWT
(1). While the Bank brokered the Treaty, it was not a guarantor, but had
certain responsibilities for its smooth
functioning. The USA also played an important supporting role in closing the
deal.(2)
The Treaty allocated , with some restrictions, all the
waters of the Western rivers (tributaries) -
the Indus main, Jhelum and Chenab to Pakistan and the waters of the three
Eastern rivers (tributaries)- the Sutlej, Beas and Ravi- to India. While Pakistan
got 80% of the Indus waters, India got only 20% under this allocation. Though the
Treaty had exhaustive provisions for its working including for a dispute resolution mechanism, it did
not provide for future advancement in technologies and environment related requirements,
neither any general principle of
law for the future . The lack of such provisions and
misinterpretations of the clauses provided in the IWT became the root cause for
many disputes that arose soon after the Treaty came into operation. Interestingly,
while other similar international treaties executed elsewhere had a fixed
period of validity, the IWT had no such fixed time frame and exit option.
Further, provision for getting the optimal benefits from the Indus waters was ignored in
the agreement , since the storages permitted in the Indian projects were much
less than the capacity available at the sites. Also the aspect of inland
navigation had also not been considered in the Treaty, even though these waterways were used for the purpose in
the past. Hence the Treaty failed to
make the requisite provisions to ensure the optimum development and utilisation
of the Indus waters, as declared in the Preamble of the IWT.
The Treaty brokered by the World Bank was hailed by
interested groups as a model for international water sharing agreements since,
as per their version, it employed the principle of reasonable and equitable usage of water between the
upstream (India) and downstream (Pakistan) states with each getting 3 of the 6 tributaries
of the river. Also, they claimed that it survived 2 wars and many war-like
situations between the two countries because of its built in resilience.
Biased Provisions in the Treaty
A perusal of the basis of water allocation in IWT would indicate
that only six tributaries of the Indus system were accounted for allocation of
the waters, while an important tributary, the Kabul river was excluded from consideration, thus permitting Pakistan unbridled use of its
waters also. Further, a false impression
has been created of apparently equal share distribution by equally dividing the
six tributaries. In fact the allotment
should have been made on equitable basis according to the quantum of water
carried by the rivers rather than equally dividing the tributaries. Parameters creating
legal and equity rights in water sharing as per the then existing international
practices should have been considered
for water sharing such as - the existing
cultivable area, population dependent on the river system, drainage area,
length of the river beds etc. in each of the co -basin states. If this basis
was adopted while allocating the waters, India would have got more than 40% of
the Indus waters(3) . Thus India was deprived of its legitimate share of the
waters needed to meet the increasing demands of its farmers in Punjab, Haryana and
Rajasthan situated within the Indus basin.
The claim that the Treaty could survive 2 wars and many war
scares due to the inbuilt resilience in the agreement, is also far from facts. India had willingly accommodated many of the
unreasonable demands of its neighbour, even at the risk of slowing down the
infrastructure plans for J&K. But this spirit of accommodation has been
taken as our weakness by Pakistan and encouraged it to make the Indian
proposals a subject of endless debate, thereby impeding their implementation.
Hence even after 5 decades, due to Pakistan’s interference, India has been able
to develop hardly 20% of the hydropower potential of 8769MW from its share in
the Western rivers.
If we delve deep into the principles of water allocation and other provisions in the Treaty, it would be clear
that the real facts on the much hyped Treaty are concealed and buried under a
mountain of rhetoric and the Treaty provisions are biased in favour of Pakistan. Our neighbour has been
always objecting to the Indian projects in a language couched in
non-constructive application of the provisions. The costly alternatives
suggested by them ignored sound engineering economics and practices, and India
had been pointing out all such
anomalies. Hence, to claim that the Treaty
has outlived the tempests of history is a blasphemy; and to extol it as a model
for principles of water sharing and
utilisation is a sacrilege.
Using the loopholes in the Treaty, Pakistan has succeeded in
stalling and delaying Indian projects planned on the Western rivers. Initially,
India did agree to many of the demands of her neighbour just to maintain good
relations. For example, it agreed to close the sluices of the Salal project as
demanded by Pakistan, knowing fully well that such an action would shorten the
project life due to heavy silting of the reservoir. The construction activities
for Wular (Tulbul) project, a scheme to facilitate cheap inland water transport
to the apple growers of interior J&K were also stopped as our
neighbour wanted more discussions on the
subject. The project has come to a dead stop as Pakistan continues to make it a subject of endless debate and is still to accept the proposals made by
India.
Baglihar Project and the Dispute Resolution by World Bank
The Baglihar project ,upstream of the Salal project across
the Chenab was the next to come under the attack from Pakistan. Though India
gave all the details sought by Pakistan, that country continued with its
allegations of India flouting the Treaty provisions. Many meetings and
discussions at the level of Permanent Indus Commissioners and even at Secretary
level later, Pakistan unilaterally took up the matter with the World Bank
charging India with the flouting of IWT and seeking an appointment of a Neutral
Expert(NE) to examine the issues. The construction of the project got delayed
and costs got escalated due to this.On the basis of written and oral
presentations made by the two countries, the Neutral Expert permitted India to go ahead with the project after
carrying out some minor modifications.
Pakistan was unhappy with the decisions of the NE for allowing India to complete the Baglihar
project. In the meanwhile, due to mismanagement of its water resources, many
parts were experiencing water scarcity in that country. The government was
being criticised for giving preferential treatment to north Punjab areas by
depriving water to other states and for its failure to build and maintain
adequate storages to meet the shortages. To divert public attention, Islamabad attempted to hoist the Indus waters issue in
the framework of the Composite Dialogue Process in the international forum.
From past experience, Pakistan had learnt
that by accusing India of impeding the Indus flows with projects in
violation of the IWT provisions, it could get the sympathy not only from its
people but also from the International community. Though there was the
provision in IWT for a mechanism, the Permanent Indus Commission, to settle
recurring disputes between the two countries , our neighbour knew that raising
the issue in a different forum would be a politically safe move to get public
support and thwart Indian attempts in taking up projects on the Western rivers.
As this approach did not succeed, Pakistan resorted to
initiate a media war blaming India for causing hardship to its farmers. It
hoped that such an accusation on the upper riparian, India, would get them the
support of India- baiters who would jump
into the fray to tarnish India’s image using, information, disinformation and
even information derived from questionable sources. Always being ready to
oblige our neighbour, these critics vilified India for harassing Pakistan for using the monsoon
river flow to fill the then approved Baglihar project reservoir, thereby
causing water scarcity downstream. India clarified that the reservoir filling
was done within the period
stipulated as permitted in the Treaty to
enable the commissioning of the already delayed project. Otherwise, it would have
to wait for one more year for the scheduled
period of filling, thereby causing
further delay of one more year in getting the project benefits. Also
water downstream was not in short supply as per flow records and even one of
their ministers had lamented then about the water being wasted by the farmers.
Pakistan continued to make a hue and cry alleging that India
had blocked water through various dams on the Western rivers for its
hydroelectric power generation, thereby causing reduction in flows downstream.
However, India continued to clarify in all meetings that IWT had permitted unrestricted power
generation on these rivers as per the
criteria specified in the Treaty and information on all projects were supplied to Pakistan. Still
India was not able to even take up many
of these projects due to the objections raised by Pakistan.
Kishanganga Project and Intervention by International Court
of Arbitration.
After failing in its
attempt to stall the Baglihar project, Pakistan now turned to accuse India of
violating the Treaty provisions in taking up the construction of the
Kishanganga hydro –project (KHP) in the Jhelum basin. The project envisages
construction of a run –of –the- river project across the Kishanganga river, a
tributary of the Jhelum. The ponded
waters would be diverted through a
tunnel and powerhouse again to the main Jhelum river and in the process would
generate 330 MW of power using a drop of 297 metres. As the
diverted water from the Jhelum would return back to the main river, India
ensured that Pak’s share of Jhelum would remain unaffected.
The project details were furnished to Islamabad during the
ninetees as per treaty provisions. As expected, our neighbour protested
insisting that the Indian project
affected their existing interests downstream and also their proposed Neelum
Jhelum project downstream of the KHP. Instead of giving details of their uses.
Pakistan continued to harp on Treaty violations by India to attract World Bank
intervention. In 2010, it instituted arbitral proceedings against India
requesting the World Bank that a Court of Arbitration (CoA) be set up to determine the permissibility of India constructing
the KHP by diverting Jhelum waters. Since our neighbour had failed to get the
support of a technical neutral expert on Baglihar project, it presumed that legal experts of the Arbitration Court would
decide favourably on technical matters of KHP.
Pakistan had raised two techno-legal issues; first regarding
the violation of the Treaty by India proposing the inter tributary diversion of
the flows thereby causing a reduction in the Jhelum flows; second, questioning whether India could draw down the water level to flush out
sediments. India asserted that it had every right to transfer waters between
the tributaries of the Jhelum so long it did not reduce the flows in the
Jhelum. It also pointed out that desilting by flushing is an essential part of
any project built across rivers carrying heavy silt load during monsoons.
After hearing the arguments from both the parties, the
Arbitration Court , gave its interim award(4) in February, 2013, permitting India
to proceed with KHP on 2 conditions- when operating the project, India has to
maintain a minimum flow in the river and,
India should not operate the reservoir below the dead storage level even for
flushing out the deposited silt. The quantum of the minimum flow would be given
in the final verdict after the parties furnished additional information on
issues sought by the CoA. The final verdict
of the Court given on 21st December, 2013 further confirmed
the verdict .
Pakistan was
desperate. Hence it initiated a media war (5)blaming India for choking
its agriculture by construction of storages on the Western rivers violating the
Treaty provisions. It succeeded again in roping in India detractors who were
ready to ignite the incendiary hydropolitics in the subcontinent. These cynics,
making a special study of the Indian projects on the Chenab river, floated the
concept of ‘manipulable storage’ and indicated that India had planned
1700million cubic metres (mcm)of manipulable storage capacity in its projects
on the Chenab river alone. They warned that with this storage India could
withhold 40 days of river flow during lean season and deprive the lower
riparian its much needed water. However, the assumptions made while computing
the estimate were found to be questionable and the results derived there from
were highly exaggerated. For example, the ‘manipulable storage’ estimated in
the 390 MW Dulhasti project in the Chenab using the same logic is 95 mcm,
whereas the gross storage actually provided in the project is only about 9
mcm.-one tenth of the computed value! Further, the presumption that India would
first deplete all its storage to refill the reservoirs with lean season flows
to spite Pakistan does not stand to reason since it ignored the substantial
revenue loss of millions of dollars India would suffer by shutting down power
generation just for harassing Pakistan!
Though India was happy that the Court upheld its right to
divert the water within the same basin, it
could not accept the restrictions put forth on reservoir operations
which shortened the life of the project
due to heavy silting and the directions on minimum flows which affected the
economics of project operation. It was evident that CoA had gone beyond the IWT
provisions, choosing to apply recent environmental laws to include the aspects of minimum
flows in a river, but ignoring the present day
international practices for
desilting reservoirs by lowering water levels below the dead storage level. Hence
the Court’s final decision was tilted in favour of Pakistan. The Indian
projects planned or under construction
would prove uneconomical because of the ruling now given by the Court which would make the projects uneconomical.
Chinese Projects in the Upper Indus Basin.
In the meanwhile, China
has also staked its rights on the Indus waters by constructing the Zada Gorge
project in Upper Sutlej. It has also reportedly constructed a project at Senge
Ali in the Upper Indus river ( 6). This situation was not anticipated while
signing the IWT in 1960. These projects would drastically reduce the river
flows downstream upsetting the working of the Treaty. However, China is not
concerned with it as it is not a party to the Treaty. If the river flows downstream
get affected, Pakistan and its sympathisers would still blame India and
continue their vituperative attacks.
Needed a Review of the Treaty.
The disenchantment with the Treaty is growing in India due to the biased
allocations of the waters, and with global warming altering weather patterns, fresh water availability is also being
affected in the basin. The recent
decision of the Arbitration Court arming Pakistan with additional powers to
object to our projects has further enhanced the circumstances leading to
trigger conflicts .
The root cause for any conflict is the scarcity of the
resource as per studies carried out by David Zhang (7),based on the data of
more than 8000 wars that took place in the past, and in this case water is the
scarce resource. However, war is certainly not the only option for India to
settle water disputes when other options are available.
The operation of the IWT during the last five decades has
revealed that it has only perpetuated the Indus dispute. It could survive the
flash points all these years only because India acquiesced to the tantrums of
its neighbour. A review of the Treaty is therefore essential considering its
inequity in water allocation and inherent ambiguity in the clauses giving undue
benefit to Pakistan. It is time for us to insist for the review of the Treaty.
If Islamabad does not cooperate, India should revoke article 62 of the Vienna
Convention on the Law of Treaties, 1969, which permits terminating or
withdrawing from the Treaty due to fundamental change of circumstances (8). The
circumstances have changed with China entering the scene. India should not allow Pakistan to sabotage
its projects any further, using the provisions of an outdated Treaty supported
by the verdict of the Court of Arbitration.
End Notes
- Indus Waters Treaty, 1960.
- The United States and the Negotiation of the Indus Waters Treaty- Dr. David R Stone- journal of the United Service Institution of India, Vol.CXL.No. 579, January-March, 2010.
- Water Project Series. –Settlement of International and interstate water disputes in India- B.R.Chouhan,1992 (Indian Law Institute)
- PCA Press Release- Indus Waters Kishanganga Arbitration (India vs. Pakistan), The Hague, February 19,2013.
- India’s water war against Pakistan- Ahmed Quraishi-Hilal (English)- September,2013.
- Empires of the Indus- Alice Albinia- John Murray-Hachette India
- David Zhang- Proceedings of the National Academy of Sciences, USA, December,2007
- UN-Vienna Convention on the Law of Treaties, 1969.
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