Should We Revise the Indus Water Treaty?
Lt. Gen.Eric A.Vas [Retd]
It has been two months since the latest Indo-Pak détente got under way. So far everything seems to be working. Infiltration is down, the cease fire along the LOC is holding, the first talks between officials have been completed in a business-like manner. The harsh rhetoric that characterised statements on both sides is absent and is replaced by a perceptible desire to normalise ties. An effort is being made to make the impending cricket series a success. But storm clouds loom on the horizon over the nagging question of sharing the Indus waters.
Pakistani experts have calculated that if the flow of water from J&K to Pakistan is reduced by a level of one percent, the economic loss to its farmers will be catastrophic. Experts consider the question of Indus water more important than the J&K issue. Despite this perception, in the light of the thaw in relations with India, Pakistan has not included their fears on this crucial question of the sharing of the Indus waters as an agenda point in the forthcoming discussion.. A brief review of the background will help us understand why this is so.
In 1947, the northern parts of India's economy were predominantly based on agriculture, dependent on river and canal waters of the Indus valley that had been developed as a single irrigation system. At the time of partition, the sharing of those waters was considered an even more intractable and urgent issue than Jammu and Kashmir [J&K]. The annexure of Kashmir would provide Pakistan direct control over the three Western rivers A standstill agreement was signed with Pakistan on 18 December 1947, which provided that the pre-partition allocation of water in the irrigation system should be maintained. The agreement was valid till 31 March 1948 when Pakistan refused to renew the agreement. India responded by shutting off water supply from the Ferozepore headwork to Pakistani canals. The prosperity of a large number of farmers was involved and Pakistan soon came to the negotiating table.
However, the state of relations between the two countries did not permit the setting up of a joint authority for the Indus valley. India's initial response to this issue was based on the Harmon Doctrine, which had been announced when the USA and Mexico were involved in a dispute over the sharing of the waters of the Rio Grande River. In 1895, US Attorney General Harmon had given his classical ruling: "The fundamental principle of international law is the absolute sovereignty of every nation against all others, within its own territory." As the two countries could not come to an agreement, the Industrial Bank for Reconstruction and Development stepped in as a mediator in 1952. It took another seven years of negotiations before an agreement could be hammered out. The basis of a final agreement was a huge amount of external capital assistance from mutual friends of both countries. The Indus Water Treaty was ultimately signed in September 1960 when Prime Minister Nehru visited Pakistan.
The Treaty grouped the five rivers of Punjab into two categories. The Eastern rivers: the Ravi, Sutlej and Beas; and the Western rivers: the Indus, Jhelum and Chenab. The waters of the Eastern rivers can be stored by India. As we know, these are being extensively used for irrigation and power supply to Himachal Pradesh, Punjab, Harayana and Delhi. The Western rivers are available to Pakistan. India can only use their running waters but is not permitted to store those waters. However, it can use the Jhelum and Chenab for generating power, and store water on tributaries of the Jhelum and Chenab for irrigation or power supply. The Treaty was welcomed both in Pakistan and India. The Treaty had an unstated quid pro quo: the resolution of the Kashmir dispute. It was then felt that the resolution of this issue would pave the way for resolving the J&K dispute.
India has operated within the framework of this Treaty for over four decades. During this time a host of problem areas have been encountered which were not visualised earlier. Although India is permitted to exploit the hydro-electric power potential of the Jhelum and Chenab, all Indian projects have to be vetted by the Pakistan Indus Commission which can exercise a virtual veto; this enables it to put conditions that are patently disadvantageous to India. For example in the Salal Hydro Electric Project, Pakistan objected to the use of under sluices. This necessitated a change of design, which has resulted in very heavy siltation of the reservoir. Over the years, the silt level in this 113 m high dam has reached 90 m, and the 30 km long reservoir has shrunk to just 14 km. This would not have happened had the use of sluices been permitted. India was determined that this should not happen again
In 1960,the Treaty did not consider the exponential growth of population and the consequent rise in demand for water for drinking and irrigation. Today, over 2,00,000 hectares of fertile land in drought-prone J&K remain un-irrigated resulting in a great loss of agricultural and horticultural potential. This is particularly acute in Kashmir Valley. This can only be alleviated by greater access to waters of the Jhelum and Chenab. Article XII  of the Indus Water Treaty states that the Treaty can be terminated only by another Treaty. India therefore has the full legal right to ask for a renegotiation of the Treaty if four decades of experience has proved detrimental to its economic and security interests. The riparian rights of states that lie downstream are well understood as a principle in international law. What is critical is the length for which a river flows in a given country. This has a bearing on the rights over usage and consumption of those waters, and the exploitation of its power potential. The water dispute between Syria and Turkey are a live example o this emerging genre of conflict.
The question of revising unfavourable treaties has many global precedents. Hungary and Czechoslovakia had gone to the International Court of Justice [ICJ] over Hungary's going back on a 1977 Treaty pertaining to the construction of a project on the Danube River. Interestingly, the ICJ gave its ruling not on the basis of the 1977 Treaty, but on a customary international law of sharing water resources in terms of "equitable utilization". Apart from equality, there is the question of national interests. The USA has recently abrogated the Anti Ballistic Missile Treaty that it had signed in the 70s as it felt that it no longer conformed to the security compulsions and realities of the 21st Century. However, there are many who do not agree with the suggestion that the Treaty ought to be abrogated or even revised. The chief counter argument is that India has negotiated similar agreements with Nepal and Bangladesh and a revision of the Indus Water Treaty could raise alarm bells in these friendly states.
Nevertheless, there can be little doubt that in order to offset population growth, improve agriculture and horticulture, and enhance the generation of power, every state has the right to revise old treaties and redefine what constitutes an equitable share. That in fact was the crux of our argument when Bangladesh took the issue of the Farrakha Barrage to the UN General Assembly in 1976. During discussions in the J&K Assembly, one Member lamented, "we export water to Pakistan. In return it exports terrorism." Yet, India has never pressed home this water leverage or even threatened this course of action despite persistent Pakistani military provocations, and its administrative and diplomatic intransigence. Thus, quite apart
In May 2003, Pakistan complained that the on-going Baglihar hydro-power project on the Chenab river will divert the flow of the river from its territory. India maintains that Pakistan's fears are unfounded. The project is nearing completion and is expected to be ready for commissioning later this year. A Pakistani team toured the area and returned convinced that India is violating the treaty. It has threatened to refer the matter to a neutral expert. However, when a composite dialogue begins between India and Pakistan next month to discuss Kashmir and other issues, the Baglihar project does not figure in agenda. Is this because Pakistan fears that if it renegotiates the Treaty it might lose for economic reasons and on the ground of equitable utilization? Is it because Pakistan is aware of the linkage between the Treaty and the settlement of the Kashmir issue? Is it because Pakistan does not wish to be held responsible for undermining the process of normalization that is proceeding so well? Time will tell how these events unfold.