Explained: Indus Waters Treaty and why India is right to ask for a review

Indus Waters’ Treaty and Rising Disputes

The IWT was signed between India, Pakistan and the World Bank in September 1960 to ensure equitable distribution of river water resources between India and Pakistan, especially within the erstwhile province of Punjab that was divided between the two countries.

As the British had heavily invested in the province, building canal colonies and other integrated irrigation infrastructure in the region, its vivisection had necessitated the need for the division of the water resources as well. After a significant dispute over canal waters’ had erupted in the aftermath of the partition, the formalisation of a treaty was deemed essential to ensure the resolution of the dispute.

After years of negotiations, the IWT was signed between India and Pakistan under the aegis of the World Bank. Under the treaty, the east-flowing rivers, within the Indus River system namely Ravi, Beas and Sutlej were allocated to India, and the west-flowing rivers, namely Indus, Chenab and Jhelum were allocated to Pakistan. While the treaty permitted India to develop “run-of-the-river” (RoR) hydroelectric projects on the western rivers, these projects could not alter the rights of the lower riparian state.

Indian Stance

India utilised its right to generate hydroelectricity on the western rivers, through RoR projects. Although these RoR projects have insignificant storage capacities, they have become bones of contention due to the nature of technical designs associated with some of these projects. A great example is the Baglihar RoR hydroelectric project on the river Chenab in the union territory of Jammu and Kashmir. Pakistan objected to the designs of the dam, especially the project’s gated spillways, which were not deemed to be in line with the spirit of the treaty of “letting water flow”.

Eventually, after much deliberation at the level of the neutral expert, Pakistani objections were set aside and the Indian position was upheld. This led to the completion of the Baglihar RoR hydroelectric project. Such objections have now become routine affairs as Pakistan has come to regularly obstruct other Indian projects on the west-flowing rivers such as Ratle on the Chenab river in the Kishtwar district of Jammu and Kashmir and Kishenganga on a tributary of the Jhelum within Bandipora citing concerns associated with the design of the projects. These routine objections have also led to the politicisation of the treaty, with the treaty becoming a soft target of critics in both countries with ‘treaty bashing’ becoming endemic within the public sphere in either country.

Within this given context, Indian attempts at modifying the treaty are in line with the existing treaty provisions. India has called for the review and modification of the treaty to ensure that Indian national security interests are not jeopardised at a time when Pakistan has not stopped cross-border terrorism. India also wants to modify the treaty to take into account emerging concerns associated with climate change and population growth, hitherto, unaddressed issues within the existing framework of the treaty.

More importantly, India wishes to increase its share of the use of the waters of the Indus and its tributaries. Presently, India has access to only 19.48% of the waters of the Indus and its tributaries while Pakistan has access to the majority of the waters. This anomaly does not take into consideration the interests of upper riparian India as we are denied the optimal use of the waters.

Way Forward

Considering the precarious nature of the issue of the hand, Indian calls for modification will require serious negotiations between all stakeholders in the dispute, namely, India, Pakistan and the World Bank. India is cognizant of the fact that neither India nor Pakistan can abrogate the treaty, as the treaty in its present form does not have an ‘exit clause’. Moreover, any unilateral modification will require a consensus.

India is also well aware of the inherent dispute resolution mechanism prevalent within the treaty that enables the sequential escalation of the disputes and its resolution. For instance, all technical questions are first addressed by the Indus Waters Commission, a bilateral body that consists of two commissioners, from India and Pakistan. If the two sides fail to reach a conclusion, then these questions become “differences” and finally “disputes” which are eventually referred to the World Bank-appointed neutral expert or an International Court of Arbitration. The presence of such a robust dispute resolution system within the treaty enables its longevity. India comprehends the legal ramifications of its requests for modification. Hence, in all likelihood, India will continue to respect the sanctity of the treaty in general and the dispute resolution system present within the treaty in particular.

However, India may start negotiations on the treaty to include climate-related provisions, that may potentially, include addressing concerns associated with depleting groundwater supply and resurrection of existing aquifers within the region. In addition, India could also include within the purview of discussions other prominent issues such as receding water flows in the rivers governed by the treaty and their ecological impact. As the treaty was signed in the 1960s, the treaty in its current form does not take significant issues into consideration and Indian attempts to review and modify the treaty may permit further strengthening of the treaty.

In this regard, these existing issues may be first discussed at length at the track 1, 1.5, and 2 levels before a formal assessment is made and the treaty may be reviewed and modified. Finally, India may also call for increasing the ambit of the Indus Waters Commissioners to ensure that these climatic issues become a part of the routine discussions between the two sides. Such an effort will further strengthen the treaty and make it a more enduring and effective Confidence Building Measure (CBM) between India and Pakistan.

Anuttama Banerji is a former Visiting Fellow with Washington DC-based Henry L Stimson Centre. The views expressed are personal