Evaluating the Indus Water Treaty with respect to international law and Pakistan's interests

Abstract

In World politics, the Indus Water Treaty is considered an example of successful cooperation over water-related disputes that survived through wars and tensions. Pakistanis considered it a life savior for their water security. That’s one side of reality, in order to fully understand this treaty but for holistic understanding, I compared it with the norms of international law and the state interests of Pakistan. Historically in the light of international law, Pakistan had a very strong legal case (in the light of the Geneva Convention, Prior-appropriation, and prior-usage clause) and may approach ICJ or ICC, against Indian aggression in 1948.

Zakwan Jamil

The treaty gave India 100% eastern rivers and 7% western rivers, and it was their starting line, since 1953. It is a so-called treaty without any give-take between Pakistan and India. The Indus Water Treaty (IWT) is a water-distribution treaty between India and Pakistan, arranged and negotiated by the World Bank. As per the agreement, India cannot stop 100% of eastern rivers, and it couldn’t divert its recognized 7% share of water from western rivers (due to geographical complexities). So, Pakistan would be getting more water, had it not signed the treaty.

International water law is there to protect lower riparians from the aggression of upper riparians. This treaty neither protects Pakistan from damming, nor from diversion or pollution, but authorizes India to do as much as it can. History dictates that civilizations have developed near water resources and it is the water that has brought people together and united communities. But at the same time, water resources have become a source of conflict between the people and nations. However, Pakistan should focus on developing cooperation on this issue. With the flowing rivers( without damming, barrages, and enough water in the rivers), Pakistan may give way to the Indian Punjab and Afghanistan to the Arabian Sea (river navigation). In the age of climate change, we may use these rivers to reduce our carbon footprint and generate revenue through it. Further research can be done to find new avenues of water cooperation and water-sharing issues between India, Pakistan, and Afghanistan.

Introduction

Water has always been the fundamental factor for the survival and development of any nation. Indus and its tributaries act as the lifeline for both India and Pakistan and support their agriculture, industry, livelihood, and energy needs. After partition, Pakistan being a lower riparian state has suffered enormously as a result of India’s water aggression (water terrorism; by stopping the water to Pakistan from eastern rivers), which continues to pose a serious threat to the existence of Pakistan.

Tensions and negotiations with the mediation of the World Bank ultimately led to the Indus water treaty which divided the basin of Indus and allocated eastern rivers (Ravi, Beas, Sutlej) to India and western rivers (Indus, Jhelum, Chenab) to Pakistan. Extensive research has been done on how it promoted cooperation and prevented conflicts. Within scholars’ circles, it is considered one of the most successful water-sharing treaties that survived through wars and tensions. But that is just one side of the reality, what is there on the other side should also be highlighted for a holistic and comprehensive understanding of the issue.

Some studies highlight this treaty with respect to climate change, environmental degradation, population growth, and increasing water demands. Over the period of time, debates have emerged concerning its actual impact on the socio-economic and environmental dimensions of Pakistan. In simple words, we can say what the Indus Water Treaty gave to Pakistan over the last 60 years. This research is focused on the consequences of the Indus Water Treaty on Pakistan's development, economy, and environment, aiming to analyze whether this treaty benefited or harmed Pakistan.

 In this regard our research will be guided by the hypothesis: -

                                         “Indus water treaty brings more harm than good for Pakistan”.

For it our main questions will be the Genesis of the Indus water treaty, what benefits Pakistan reaped out of it till today, how the treaty violates international law and what is the Way forward.

Research Methodology and Objectives

This research will be of an analytical nature. For this article, I am not going to use any specific theory of IR. But will compare IWT with norms and customs of international law and its implications on Pakistani interests. In this regard, our data will be secondary (journals, talks of experts). it will be of both qualitative and quantitative nature.

Through a comprehensive analysis of historical and hydrological data, and socio-economic indicators, its comparative analysis with international law, and the interest of Pakistan, this research aims to contribute valuable insights and new perspectives into the ongoing discourse on the Indus Water Treaty's effectiveness and implications for Pakistan. By addressing the potential detrimental impacts of this treaty, this study also aims to contribute to informed decision-making, foster balanced discussions on the management of water resources, and promote the sustainable development of Pakistan's water-dependent sectors.

The Genesis and the Rationale behind Indus Water Treaty

Before going deep into the discussion, it is important to understand what circumstances led to the treaty and what was the rationale behind this treaty.

Issue initiated when Radcliffe Commission gave both critical water points (Firozpur and Madhopur headworks ) to India, by giving Firozpur and Gurdaspur to them despite they were Muslim majority Districts/ tehsils. The irrigation system of Punjab was very integrated, it was clear that it would create problems, by giving full authority to upper riparian (India).  The situation would have been balanced out if one was allocated to each (so that they could counter each other’s aggression).

An arbitrary Tribunal was made under the supervision of the British government to deal with the issues of the division of resources. Pakistan could take this issue into it. But simultaneously, a Standstill Agreement was made between India and Pakistan, and princely states that all the administrative arrangements would continue unaltered (as they were in the British crown) until new arrangements were made. The water system of the headworks was also at a standstill.  Due to this agreement, Pakistan could not take any legal action against this unequal division in an arbitral tribunal.

Both of them expire on the exact same date of 31^st of March 1948. The day following the expiry of them (1^st of April) India stopped water from the canals of Firozpur and Madhopur headworks.  Some scholars call it water terrorism and claim that it was the most aggressive water-related posture ever taken in world history, without telling any reason or warning. Furthermore, India started claiming these waters and said that Pakistan had no right to them.

Geneva Conventions were in effect at that time, according to it civilians’ water could not be stopped, for any political or military reason. According to the international norms of that time, Pakistan could take legal action against who ordered this move. It could have dragged the CM of Indian Punjab and Nehru to the ICC.

Furthermore, lower riparian rights were recognized at that time under international law. There are two important clauses of international water law. First is Prior-Appropriation; if the lower riparian state already has any plan to use water, then the upper riparian cannot disturb it. If anything, such happens, then they would have to negotiate it. Second is prior usage; lower riparian is already using these waters. Pakistan had a very strong legal argument against this oppression, it had a historical claim on these waters for centuries.

We should keep in mind that India stopped only some channels (not the whole rivers). At that time India does not have any infrastructure, to stop these rivers. It impacted only 5-8 % irrigated area of Pakistan. Between them, a dominion accord was signed according to it; if Pakistan wanted these waters, it would have to pay for them, until they do not arrange any alternative (from western rivers). It will be for a limited time until a proper treaty is not signed.

In Sep 1951, the World Bank came into play, keeping in view the business opportunities (in the form of dams). Its CEO (Eugene Black) offers both India and Pakistan, their good offices for mediation. Both states accept it. In October’s letter, WB gave the formula that both states will discuss only the future, past (old rights and usages) will not be discussed. Pakistan had to forego its most important legal point in order to get into the negotiations.

In 1953, both India and Pakistan presented their initial stance to WB. India demanded 100% from the eastern river and 7 % from the western rivers. Pakistan demanded 100% from western rivers and 70 % from eastern rivers. Several rounds of negotiations happen between them. But no conclusion came out.

In 1954 General Wheeler (from WB) gave the formula that on eastern side of the international border should go to India and the western side should go to Pakistan. They do their developments on their respective sides. This means 100% of eastern rivers should go to India and 100% of western rivers should go to Pakistan. India readily accepted it. India was fighting only for eastern rivers only because they could be easily diverted, towards internal Punjab and Rajasthan. Pakistan rejected it, as it needed something more from the eastern rivers. As 50 % of the agriculture of Pakistani Punjab was dependent on eastern rivers.

In the Rome meeting of 1954, while discussing Gen. Wheeler’s formula, a Pakistani delegate gave the argument that if Gen. Wheeler’s formula is implemented it would harm Sindh, while Punjab would be in benefit. In 1955 Pakistan became one unit. After which treaty’s formula amended and started using one unit from Pakistan (West Pakistan) and one unit from India (Indian  Punjab). In this way, Pakistan’s north and south withdrew from the treaty.

In 1958, Gen. Ayyub came into the Government. Prior discussions were about the World Bank will support India in making 2 dams; the Pong dam (on Beas) and the Thien dam (on Ravi), in order to stop these two rivers from implementing Gen. Wheeler’s formula. Simultaneously India started working on the Bharkah dam (on Sutlej) in 1948, without any treaty or consent of Pakistan. Till the treaty, it was almost complete. Other water diversion plans include the Nangal dam (completed in 1954), Harika barrage was also made at the confluence of Chenab and Sutlej (which bypassed Firozpur headworks). Link canals were made which took water from Ravi and fed the Harika barrage. Further projects on Rajasthan channels in Punjab also started.

These were the mega projects without any treaty. WB funding was involved in it, and other American cooperations were working on it. All these structures were against the norms of international law. If Pakistan goes to ICJ, all these projects will become illegal. Pakistan was always prevented from going into the ICJ.

When the World Bank was building dams in India, Pakistani authorities also demanded in turn. WB officials mentioned that Pakistan does not need dams, Pakistan’s irrigation system is run off the river. The natural rhythm of rivers matches with natural agronomy cycle of Pakistan. More water-consuming crops are cropped in summer while less water-consuming waters are cropped in winter. Similarly, water supply naturally increases or decreases according to the demand.  Furthermore, till that date irrigation system of the Subcontinent was working well without dams. Pakistan does not really need dams. Still Pakistani Government insists on dams keeping in view the big flow of funding. WB claims that Pakistani engineers convinced them for dams. (It seems to be a double game. They were doing their business). WB agreed that they would fund Pakistan for dams but not without a treaty.

In India, everything was going on without a treaty, but when Pakistan called for mega projects, they imposed the condition of the treaty. They were interested in signing the treaty because if Pakistan did not sign the treaty. All the work that has been done on the Indian side may have to face legal action and Pakistan may claim their legal rights in ICJ, as lower riparian. WB’s funding was involved in it. That’s why the condition of the treaty was imposed.

At that time, two voices emerged in Pakistan. One advice to Gen. Ayyub Khan was that it would be very dangerous to sign the treaty. Even if we don’t build dams today, we can make them later. Signing the treaty will legalize all the Indian aggression that we face today. But Gen. Ayyub was more interested in getting funding (in the form of dams). Another reason may be that he was interested in getting legitimacy after a coup, by initiating visible mega projects.

In this situation, India Changed its stance and started demanding 7% from western rivers. Ultimately, when the treaty was signed India got 100 % eastern and 7% western rivers, and that was their starting line (from 1953). Then where is the treaty? This treaty is supposed to be a Funding Agreement between Pakistan and WB. Today all the water issues between India and Pakistan (like Kishanganga, and Baglihar) are on western rivers.

Treaty’s violation of international law

Not the main articles but the annexure of the treaty contains a lot of details. The treaty discusses the structure and capacity of dams India was allowed to make on western rivers. India was allowed to irrigate 700 k acre (2-3 MAF) from western rivers.  They were also allowed to make storage with some conditions like they could do about 4 MAF live storage on run off the river. But when structures are made beside live, dead storage and crest (freeboard above live storage for emergency) also happen. It will increase by 4 to almost 8 MAF. In this way overall, Pakistan gave almost 10-12 MAF water to India from western rivers.

India moves one step forward from their initial line of 7 % from western rivers. They know that Pakistan will definitely sign the treaty, for the sake of funding. Indian Drainage will continue to flow to Pakistan (from the corridors between Ravi and Sutlej). It means India will stop fresh water but not drainage. Furthermore, Pakistan will have to maintain these drains and keep in shape. It would have to clear them if any obstruction came in them, and it would be done as public service. Pakistan will have to maintain the capacity of flow as on the effective date of treaty. That was not limit. If they want to release more drainage, they can do so. For this India will pay to Pakistan to increase the capacity. Pakistan is obliged to do it.

India will also dump their drainage in the beds of Ravi and Sutlej (which emptied as a result of treaty). These drains are coming from the middle of major cities of eastern Punjab i.e., Ludhiana Hoshiarpur, Amritsar, Jalandhar containing toxic industrial, domestic waste, heavy metals and ultimately, they end up in Pakistan.

Another condition was that no one will modify the Natural bed of Ravi from Madhopur to Lahore (runs along the boundary of India and Pakistan). This reach was for Indian flood waters, in case of emergency. All the floods that they would release from Madhopur, would be received in Pakistan. No safety in this case. Similarly bed of Sutlej will not be disturbed from Harika to Sulemanki headworks.

 Language used in the section about general conditions of eastern and western rivers revolves around both parties will do this (or not).  As it is mentioned that both parties can release flood waters, other party will not claim any damages[9]. In reality, both parties can’t do this. Being an upper riparian only India can release flood water. Pakistan can’t do this.

All the transboundary water resources laws are there to protect lower riparian. Upper riparian does not have any danger from lower riparian to harm it. In this regard lower riparian needs three fundamental protections from upper riparian.

First is that as a lower riparian Pakistan need safety against damming. Being an upper riparian by damming the river, India takes the control to release the waters when they want, and it disturbs the rhythm of river. Such activities disturb the agronomy of Pakistan which is dependent on the rhythm of river. On western rivers there is although some cap on storage, but not on the number of structures. This treaty pushes towards as much as possible dams. It can be seen from the recent reports of WB on water scarcity, in which they push states for dams.

Second thing from which lower riparian need protection is diversion. If upper riparian diverts, then lower riparian will have less water. This treaty allows upper riparian as much diversions as possible. This treaty completely ended the eastern rivers towards Pakistan. They are still not able to divert their 7% from western rivers (due to geographical constraints) Third is the pollution from which lower riparian needs protection from upper riparian. Pollution has been discussed earlier.

It is a so-called treaty, which neither protects lower riparian from damming, nor diversion, nor pollution. But authorize upper riparian to do as much damming, diversion, and pollution. If treaty ends, it would be beneficial for Pakistan, then we will move to international norms. Furthermore, this treaty not more valued rivers than a commute carrying water, where a river is complete ecological and cultural system. Today we are paying its cost.

India can’t divert the water from western rivers to Indian Punjab due to geographical complexities (mountainous terrain) of Kashmir. It is next to impossible to make commute in these mountains and divert them into the Indian Punjab. Even it is possible with present machinery and technology. It is not economical. Tunnel boring cost in that geography is very high. Neelum Jhelum costs Pakistan almost 6 billion $ to construct 60 km long tunnel system. Furthermore, it is the seismically most active region in the world. Till day they can’t divert their recognized share of 7% from western rivers.  It is humanly not possible to stop these waters.  It is a perceived threat by Pakistani decision maker, that’s not real. It is only the fear mongering in the nation that has been feed in the last 60 years.

Without treaty, India impacted only 5-8 % from eastern rivers, by signing treaty Pakistan gave them 100% (eastern rivers), if treaty does not happen then India will never stop 100 % from eastern rivers. From western till date, they did not get their recognized share of 7%. Ultimately, Pakistan would have been better off, and getting more water.

Way forward

We should keep in mind that Water neither belongs to Pakistan nor India. It belongs to rivers. Historically every civilization developed near a water resource. This means that rivers unite the people. Water is very Angry Elder. If you divide water, water will divide you. Water-divide in the world has led towards conflicts. Europe became European Union when they started Rhine and Danube flowing free without anyone’s control.

River connects the communities. Indus River is on the 5^th number in the golden rivers of world that have potential of generating economy through navigation[10]. If Indus is flowing without dams and barrages and have enough water. Pakistan may offer Indian Punjab (landlock region), to use their rivers for navigation (for trade) with Middle East. It will reduce their cost. In this way these dividing rivers will become bonding agents. In this way there would be no need to revoke it. It would become an artefact of history, and irrelevant

Pakistan had very strong cards to play at international level. Pakistan had strong legal cards, Pakistan can take its case from ICC to ICJ. Today whole world is focused on sustainability, environment, nature, regeneration. In order to reduce carbon footprint, we can use our river for cargo movement e.g. from Sukkur to Arabian sea. Its carbon footprint will be 50 times less than by road. furthermore, Pakistan will use Electric barges, charged on solar power. In this way, Pakistan can sell their carbon credit (under IET program).  Furthermore, such projects can also happen with 100 or 80 % funding under environmental funds. In 1960s (when treaty was signed), water scarcity was not an issue. Even today water is enough for both states. Today’s scarcity is made up, due to damming and mismanagement.

Further Research Gap

With my research, in comparison with international law I explained that IWT was unfair and on un-equal grounds (actually not a treaty), and how it harmed Pakistan. Further research can be done how we can use these water resources further as a source of cooperation, between India and Pakistan. Because it is the only way out.

Bibliograph

The Indus Waters Treaty: an exemplar of cooperation.” 2018. South Asia@LSE. June 25, 2018.

https://blogs.lse.ac.uk/southasia/2018/06/25/the-indus-waters-treaty-an-exemplar-of-cooperation

Michel, Aloys Arthur. 1969. “The Indus Rivers: A Study of the Effects of Partition.” Journal of the Royal Asiatic Society of Great Britain & Ireland 101 (2)

Ahmad, Omair. 2021. “Indus Waters Treaty Rides out Latest Crisis.” The Third Pole, April 29, 2021

Wang, Yichu, Xiabin Chen, Alistair G. L. Borthwick, Tianhong Li, Huaihan Liu, Shaohua Yang, Kewei Chen, Xu, and Jinren Ni. 2020. “Sustainability of Global Golden Inland Waterways”

Annexure-C of the IWT (Agricultural Use

Annexure-D of the IWT (Generation of hydro-electric power)

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