The Indus Water Treaty – Explained, pointwise

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Introduction

The 118th meeting of the India-Pakistan Permanent Indus Commission (PIC) took place recently. The Commission has been created under the Indus Water Treaty (IWT). The treaty is an agreement that was signed by former Prime Minister Jawaharlal Nehru and the then President of Pakistan, Ayub Khan in 1960. It marked out control over the 6 rivers running across the Indus basin following the partition of India. The role of India, as a responsible upper riparian abiding by the provisions of the treaty, has been remarkable. However the country, of late, is under pressure to rethink the extent to which it can remain committed to the provisions, as its overall political relations with Pakistan becomes intractable.

What was the background of the Indus Water Treaty?

The six rivers of the Indus basin originate in the Himalayas/Tibet (Indus, Sutlej, Beas, Ravi, Jhelum and Chenab) and flow across the Himalayan ranges to end in the Arabian sea. Preceding partition, it was one common network for both India and Pakistan. However, the partition of India raised question about the distribution of water between the two nations. Since the rivers flowed from India, Pakistan felt threatened by the prospect of control of river waters by India. Initially, the issue of water sharing was sorted out by the Inter-Dominion accord of May 4, 1948 that laid out that India would release enough water to Pakistan in return for annual payments (by Pakistan). The problems of this arrangement were soon realized and it was considered necessary to find an alternative solution.

Eventually, in 1960, the two countries reached a decisive step with the intervention of the World Bank wherein precise details were laid out regarding the way in which the waters would be distributed.

What are the main provisions of the Indus Water Treaty?

The Treaty gives India control of 3 Eastern Rivers (Beas, Ravi and Sutlej) with a mean annual flow of 33 million acre-feet (MAF). Pakistan gets control of 3 Western Rivers (Chenab, Indus and Jhelum) with a mean annual flow of 80 MAF. The treaty gives India 20% of the water from the Indus River System and the rest 80% to Pakistan.

The treaty allows India to utilize the waters of Western Rivers for for limited irrigation use and non-consumptive use for such applications as power generation, navigation etc. Thus, India can generate hydroelectricity through a run-of-the-river projects (without the storage of waters) on the western rivers, subject to specific criteria for design and operation. Further, Pakistan also has the right to raise concerns on the design of Indian hydroelectric projects on western rivers.

The treaty allowed India to have a minimum storage level on the western rivers – meaning it can store up to 3.75 MAF of water for conservation and flood storage purposes.

A Permanent Indus Commission was set up by the United Nations for resolving any disputes that may arise in water sharing.

The functions of the commission include serving as a forum for exchange of information on the rivers, for continued cooperation and as a first stop for resolution of conflicts.

The Indus River Basin and the Indus Water Treaty IWT UPSC

Source: Indian Express

How do conflicts get resolved under the Indus Water Treaty?

The IWT provides a three step dispute resolution mechanism, under which “questions” on both sides can be resolved at the Permanent Commission, or can also be taken up at the inter-government level. 

In case of unresolved questions or ‘differences’ between the countries on water-sharing, such as technical differences, either side can approach the World Bank to appoint a Neutral Expert (NE) to come to a decision. 

And eventually, if either party is not satisfied with the NE’s decision or in case of ‘disputes’ in the interpretation and extent of the treaty, matters can be referred to a Court of Arbitration.

Pakistan has raised disputes on almost all of India’s projects on Western Rivers. These include Baglihar Dam on Chenab,  Kishenganga Dam on Kishenganga River (tributary of Jhelum River), Tulbul Project on Jhelum River. The Baglihar Dam ‘Difference’ was resolved in 2007 through the World Bank-appointed expert, and Kishenganga Dispute was resolved through Court of Arbitration in 2013.

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What are the reasons behind success of the Indus Water Treaty?

The treaty has remained ‘uninterrupted’ because India respects its signatory and values trans-boundary rivers as an important connector in the region in terms of both diplomacy and economic prosperity. There have been several instances of terror attacks – Indian Parliament in 2001, Mumbai in 2008, and the incidents in Uri in 2016 and Pulwama in 2019. This could have prompted India, within the Vienna Convention on the Law of Treaties, to withdraw from the IWT. However, on each occasion, India chose not to do so.

What are the reasons behind calls for renegotiating the Indus Water Treaty?

First, the treaty has unequal sharing of the waters. Pakistan has been allocated ~80% of the Indus basin waters. Experts have termed this the most generous water sharing treaty. It is the only water-sharing pact in the world that compels upper riparian State to defer to the interests of the downstream State.

Second, it prevents India from building any storage systems on the western rivers. Even though the treaty lays out that under certain exceptional circumstances storage systems can be built, Pakistan deliberately stops any such effort. The extensively technical nature of the treaty allows Pakistan to stall legitimate Indian Projects.

Third, the basin’s size and volume is getting altered by climate change and this alteration is going to intensify in future. There would be instances of more high-intensity rainfall as well as long stretches of scanty rainfall. There would be a high influx of water due to glacial melt. The contribution of glaciers in the Indus basin is higher than in the Ganges or Brahmaputra basins. A change in the flow conditions may classify as ‘change of circumstances’ which can justify renegotiation or termination in the future.

Fourth, the recent report of the Standing Committee of Water resources noted that canals in Punjab and Rajasthan (Rajasthan Feeder and the Sirhind Feeder) had become old and were not maintained properly. This had resulted in the lowering of their water carrying capacity. Thus, the water from the Harike Barrage on the confluence of the Beas and Sutlej in Punjab was usually released downstream into Pakistan. Pakistan is getting more waters than its entitlement in the Eastern Rivers.

Concerns with the Indus Water Treaty IWT UPSC

Source: The Times of India

Can the Indus Water Treaty be rejected by India on a unilateral basis?

Article XII (4) of the Indus Water Treaty notes that, “…provisions of this Treatyshall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.” Thus the treaty doesn’t allow for unilateral termination.

Article 62 of the Vienna Convention on Law of Treaties (VCLT), 1969 provides that even a ‘fundamental change of circumstances‘ that are ‘not foreseen by the parties‘ at the time of conclusion of treaty is not a valid ground for termination of treaty unless certain conditions are fulfilled. Legal experts argue that terrorist attacks do not fall under this exception. Although, India is not a party to this convention, the Supreme Court of India has recognised the customary status of the Convention. (Pakistan is a signatory, but hasn’t ratified the Convention).

Thus, unilateral termination will impact India’s international standing as a responsible power that always supports a Rules based International Order. This will weaken India’s case for permanent representation at the UNSC.

Moreover, there are certain other downsides of unilateral termination e.g., (a) India has water sharing agreement with Bangladesh. Termination of treaty will raise anxiety in Bangladesh and impact bilateral relations; (b) China, an ‘all-weather ally’ of Pakistan, will certainly use diversion of Brahmaputra waters to threaten India; (c) There is not enough infrastructure to store/divert waters of Western Rivers to starve Pakistan of water.

What should be the approach of India going ahead?

First, India should take steps to completely utilize its entitlement of waters of Western Rivers. The infrastructure to utilize the waters has remained under-developed in J&K. 

Creating More Infra on Western Rivers under Indus Water Treaty UPSC

Source: Times of India

Second, some experts suggest that in case of escalation of hostilities by Pakistan in future, India can suspend the meetings of Permanent Commission. If the first state of dispute redressal is not functional, the subsequent two steps of 3-tier dispute redressal don’t kick in. Thus India can use this as a pressure tactic on Pakistan.

Third, India should explore the possibility of using climate change as a ‘change in circumstances’ to initiate conversation on renegotiation of the IWT. This will also put pressure on Pakistan.

Fourth, experts in India and Pakistan should assess how much of the waters in the Eastern and Western rivers are snow or rain-fed within their respective territories. Such estimates would add to the accuracy of each side’s dependence on the other in sharing the waters of these rivers.

Fifth, as per the standing committee of water resources, the canal systems in Punjab and Rajasthan should be repaired to increase their water carrying capacity.

Source: Indian Express, Indian Express, The Hindu, The Diplomat

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