Image Source: Musaib Manzoor, ‘India’s bid to disentitle Pakistan from the Indus Waters Treaty’, (5 April 2023, LF Kashmir) India’s bid to disentitle Pakistan from the Indus Waters Treaty – Legal Forum for Kashmir India’s bid to disentitle Pakistan from the Indus Waters Treaty (lfkashmir.com) accessed 29.02.2024.
The Indus River originates in Tibet and Afghanistan and flows through India and Pakistan.[1] British colonial rulers constructed an expansive canal system throughout the watershed that split in the 1947 partition, leaving the headworks in India and majority of canals in Pakistan.[2] This led to upwards of 75 years of water disputes that continue today in spite of the Indus Water Treaty.
Part 1: Background
Flowing from glaciers in the mountains of western Tibet and the Hindu Kush, the river’s tributaries run along the Line of Control (“LOC”) in Kashmir with approximately 47% in Pakistan and 39% in India.[3] The 1947 partition resulted in India gaining control of the Indus’s basin and upstream barrages, which regulate water flow into Pakistan, and Pakistan having access to most of the downstream canals.[4] Pakistan is one of the most water-stressed countries in the world[5] and its largest economic sector – agriculture – consumes 90% of the country’s water resources.[6] Moreover, most of Pakistan’s population lives on the Indus floodplain, 90% of Pakistan’s food comes from the floodplain, and 65% of employment opportunities stems from farming sustained by the floodplain.[7] Pakistan’s water-intensive economy relies almost exclusively on the Indus, which flows at India’s discretion.[8]
India began withholding water from canals that flowed to Pakistan in 1947 following British withdrawal from the region.[9] Soon thereafter, India and Pakistan signed the Inter-Dominion Accord of 1948 requiring India to provide water to Pakistan in return for annual payments.[10] In 1951, energy expert David Lilienthal[11] suggested that the two countries enter an agreement to mutually develop the Indus River system with financing from the World Bank.[12] On September 19, 1960, after nine years of negotiations, India and Pakistan signed the Indus Water Treaty (“IWT” or the “Treaty”),[13] which gave the western rivers – Indus, Jhelum, and Chenab – to Pakistan and the eastern rivers – Ravi, Beas, and Sutlej – to India.[14] While the rivers flow from India’s water basin, the majority of the basin’s tributaries run through Pakistan, and the IWT stipulates that neither party can interfere with nor place obligations upon the other’s resources.[15] The IWT also set up a framework for irrigation and hydropower throughout the watershed[16] by providing funding for dams, canals, barrages and tube wells – most famously resulting in the Tarbela Dam on the Indus River and the Mangla Dam on the Jhelum River.[17]
The IWT is foremost a technical treaty designed to address practical issues of water and energy supply.[18] It does not address political disputes associated with the region and its resources.[19] Therefore, the IWT has been strained by both countries pursuing new development projects to address water and energy shortages, arguably in violation of the Treaty.[20] The most recent conflict has emerged from India’s construction of hydroelectric projects in Kashmir and on the Chenab River over Pakistan’s objections.[21]
Part 2: Different Perspectives
India and Pakistan have been in disagreement over the design features of the Kishenganga and Ratle hydroelectric power plants. The two States have different perspectives on whether the technical design features of these plants contravene the IWT. These hydroelectric power plants are located in India on tributaries of the Jhelum and Chenab rivers. India has asked the World Bank to appoint a Neutral Expert to look into its concerns regarding this disagreement and Pakistan has asked the World Bank to set up a Court of Arbitration for the same purpose.[22] It is clear though, that both States are heavily dependent on each other’s cooperation because neither State has ever severely targeted each other’s hydroelectric power plants or canals.[23]
However, India has undertaken major hydropower development across its Himalayan region with over 60 projects of various sizes on the headwaters of the Jhelum and Chenab rivers – Baglihar, Sawalkot, Pakuldul, Bursar, Dal Huste and Gyspa, to name a few. Pakistan fears these projects will interfere with the natural timing of water flows from these rivers and evidently impact their agriculture which is dependent on adequate water flows. Pakistan’s concerns were almost immediately realized when India chose to fill the Baglihar dam at a time when it would impose maximum harm on farmers downstream and did not provide Pakistan with accurate data on the filling of the dam.[24]
However, the two States are still determined to achieve high economic growth from their agriculture. The waters of the Indus Basin are a priority for both States in achieving this, especially for the purpose of irrigation and electricity generation. Both States are also keen on addressing the grievances of the people of Kashmir and Gilgit-Baltistan because they suffer from chronic energy shortages that have negatively affected industrial production, investment, and tourism. However, Pakistan has further concerns with India’s water projects because the Chenab canals network in Pakistan is the first point of defense it has against any armed attacks from India. If these canals dried up, they would provide India with an easier passage for an armed attack and if the dams in India ever collapse or malfunction then it would cause flash floods in Pakistan.[25]
This exposes a shortcoming in the Indus Water Treaty because it is concerned with engineering solutions and water management. It does not consider security threats or provide a mechanism for possible misuse of engineering solutions when an upper riparian is provided with an unfair advantage by that State gradually building projects over time.[26] However, to suggest another legal instrument to solve the issues between India and Pakistan over the Indus water resources may well involve arguments of territorial sovereignty. One legal instrument that could be beneficial to the issues between India and Pakistan is the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Water Convention) since within the convention “emphasis on prevention is important, since it is often difficult to stop or modify an activity once it has begun, and it can be very complicated and expensive, if…possible, to remedy harm once caused.” However, the convention has not progressed in decades since it was first written to target climate change, population growth, increasing water scarcity, geopolitical conflict, and international security concerns.[27]
States are reluctant to sign and ratify treaties that will limit their control over water resources. India and Pakistan have not signed or ratified the UN Water Convention because as Marc Weller writes, “[I]t is a defining feature of the classical international system that obligations cannot be imposed upon States against their will.”[28] Therefore, an entirely different approach is needed for India and Pakistan to solve their issues surrounding the Indus water resources. One approach is through the perspective of ‘collective’ water security, because both States do have a common interest to secure the Indus waters. The notion of ‘collective’ water security ultimately challenges the supremacy of absolute territorial sovereignty. This approach acknowledges that the best possible management of transboundary watercourses can only be achieved with a truly ‘common’ strategy – by bringing together each other’s law and politics. Its role in general is to facilitate both, the coordination of States’ individual actions regarding a common concern, and the institutionalization of ‘normative communities’. India and Pakistan have the same common concerns to secure and maintain access to the Indus water resources and they also have their agricultural sectors to think of, since most of their profits comes from this sector alone. Therefore, the notion of ‘common concern’ is focused on the equitable sharing of benefits from the exploitation of water resources beyond the limits of national jurisdiction.[29] This concept is found within the UN Convention of the Law of the Sea under Article 136 ‘Common Heritage’ which declares “[t]he area and its resources are the common heritage of mankind.” This approach is also limited to a certain geographical area and its resources like the Indus waters.[30]
Part 3: Treaty Resolution
In 1951 the Indus Water Treaty was a suggested dispute resolution mechanism aimed at resolving the rising hostility between India and Pakistan. The treaty was developed in cooperation and financing from the World Bank.[31] Due to various political and technical differences, the treaty was signed 9 years later, in 1960 by both Indian and Pakistani governments and by the World Bank.[32] The Indus Water Treaty was able to mediate one of the biggest points of contention between India and Pakistan, the allocation of resources – the Western Rivers (Indus, Jhelum, Chenab) were given to Pakistan, while the Eastern Rivers (Ravi, Beas, Sutlej) were allocated to India.[33]
With regard to any pending or future disputes between India and Pakistan, the treaty established a ‘Permanent Indus Commission’, with two Commissioners representing each country, tasked to “establish and maintain co-operative arrangements for the, implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers.”[34] Even though the World Bank is also a signatory to the Indus Water Treaty, its role is much more limited, concerning obligations such as the Court of Arbitration and the Neutral Expert.[35] Moreover, the treaty itself also provides solutions with regard to financing and building of dams and other water systems designed to be shared between the two countries.[36]
Although the treaty was not an instant fix for all past or present issues arising between India and Pakistan, it definitely calmed the political waters. The ‘Permanent Indus Commission’ was proven to be a functional channel of communication between the two governments when it was successful in settling the disagreement over the Baglihar dam. It was the first time that a process of conflict resolution was invoked since signing the Indus Water Treaty. However, as the predicted water shortages in the future are becoming a reality, there is a real possibility of continuing diplomatic tensions and conflicts between India and Pakistan, despite the solutions provided for in the Indus Water Treaty.[37]
In conclusion, like India, Pakistan relies almost exclusively on the Indus water resources. The two countries are also determined to achieve economic growth from their agricultural sectors. The Indus water resources are a priority for both countries as result; and this is a demonstration of ‘common concern’. The IWT is a technical treaty designed to address practical issues of water and energy, and does not consider security threats or address political disputes associated with the region and its resources. The notion of ‘common concern’ is more promising than any legal instrument as a result, because instead of targeting one area or resource, it focuses on what renders a concern as being ‘common’. In doing so, it avoids any disputes over common property and territorial sovereignty and is a framework both countries can rely upon to share their common concerns and resolve their issues.
[1] Patricia Bauer, “Indus Waters Treaty,” (Britannica Online Encyclopedia, 12 Sept. 2021) <https://www.britannica.com/event/Indus-Waters-Treaty> accessed 15 July 2022. Britannica Online.
[2] Ibid.
[3] “Water conflict and cooperation between India and Pakistan,” (Climate Diplomacy) <https://climate-diplomacy.org/case-studies/water-conflict-and-cooperation-between-india-and-pakistan#:~:text=Water%20issues%20in%20the%20Indus,Indus%20Waters%20Treaty%2C%201960)> accessed 16 June 2022. Climate Diplomacy.
[4] Britannica Online.
[5] Michael Kugelman, “Why the India-Pakistan War Over Water is So Dangerous,” (Foreign Policy, 30 Sept. 2016) <https://foreignpolicy.com/2016/09/30/why-the-india-pakistan-war-over-water-is-so-dangerous-indus-waters-treaty/> accessed 15 July 2022. Foreign Policy.
[6] Britannica Online.
[7] Ibid.
[8] Foreign Policy; Climate Diplomacy.
[9] Britannica Online.
[10] Ibid.
[11] Former head of the Tennessee Valley Authority and Atomic Energy Commission. Britannica Online.
[12] Britannica Online.
[13] “Fact Sheet: The Indus Waters Treaty 1960 and the Role of the World Bank,” (World Bank, 11 June 2018) <https://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank> accessed 15 July 2022. World Bank Fact Sheet.
[14] Britannica Online.
[15] Climate Diplomacy.
[16] World Bank Fact Sheet.
[17] Britannica Online.
[18] Ahmer Bilal Soofi, Jamal Aziz, and Abeer Mustafa, “Filling the Missing Gaps in the Indus Water Treaty,” (Research Society of International Law, April 2016) <https://rsilpak.org/project/filling-the-missing-gaps-in-the-indus-water-treaty/#:~:text=The%20Indus%20Waters%20Treaty%20> accessed 18 July 2022.
[19] Ibid.
[20] Climate Diplomacy.
[21] Britannica Online.
[22] “Fact Sheet: The Indus Waters Treaty 1960 and the Role of the World Bank,” (World Bank, 11 June 2018) <https://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank> accessed 18 July 2022.
[23] Ahmer Bilal Soofi, Jamal Aziz, and Abeer Mustafa, “Filling the Missing Gaps in the Indus Water Treaty,” (Research Society of International Law, April 2016) <https://rsilpak.org/project/filling-the-missing-gaps-in-the-indus-water-treaty/#:~:text=The%20Indus%20Waters%20Treaty%20> accessed 18 July 2022.
[24] Ibid
[25] Ibid.
[26] Ibid.
[27] Carly A. Krakow, ‘The International Law and Politics of Water Access: Experiences of Displacement, Statelessness and Armed Conflict’ (2020) 12 (340) MDPI < file:///C:/Users/Windows%2010/Downloads/water-12-00340-v2.pdf > accessed 23 August 2022.
[28] Ibid.
[29] Bjorn-Oliver Magsig, ‘Overcoming State-Centrism in International Water Law: ‘Regional Common Concern’ as the Normative Foundation of Water Security’ (2011) 3 (1) Goettingen Journal of International Law < https://www.gojil.eu/issues/31/31_article_magsig.pdf > accessed 23 August 2022.
[30] United Nations Convention on the Law of the Sea, art 136; Bjorn-Oliver Magsig, ‘Overcoming State-Centrism in International Water Law: ‘Regional Common Concern’ as the Normative Foundation of Water Security’ (2011) 3 (1) Goettingen Journal of International Law < https://www.gojil.eu/issues/31/31_article_magsig.pdf > accessed 23 August 2022.
[31] Britannica Online (n 1).
[32] Ibid.
[33] World Bank (n 14).
[34] The Indus Water Treaty (1960) – Article VIII (3).
[35] World Bank (n 14).
[36] Britannica Online (n 1).
[37] Climate Diplomacy (n 3).
Bibliography
Patricia Bauer, “Indus Waters Treaty,” (Britannica Online Encyclopedia, 12 Sept. 2021) <https://www.britannica.com/event/Indus-Waters-Treaty> accessed 15 July 2022.
“Fact Sheet: The Indus Waters Treaty 1960 and the Role of the World Bank,” (World Bank, 11 June 2018) <https://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank> accessed 15 July 2022.
Indus Waters Treaty (1960) <https://mea.gov.in/bilateral-documents.htm?dtl/6439/Indus> accessed 18 July 2022.
Michael Kugelman, “Why the India-Pakistan War Over Water is So Dangerous,” (Foreign Policy, 30 Sept. 2016) <https://foreignpolicy.com/2016/09/30/why-the-india-pakistan-war-over-water-is-so-dangerous-indus-waters-treaty/> accessed 15 July 2022.
Ahmer Bilal Soofi, Jamal Aziz, and Abeer Mustafa, “Filling the Missing Gaps in the Indus Water Treaty,” (Research Society of International Law, April 2016) <https://rsilpak.org/project/filling-the-missing-gaps-in-the-indus-water-treaty/#:~:text=The%20Indus%20Waters%20Treaty%20> accessed 18 July 2022.
“Water conflict and cooperation between India and Pakistan,” (Climate Diplomacy) <https://climate-diplomacy.org/case-studies/water-conflict-and-cooperation-between-india-and-pakistan#:~:text=Water%20issues%20in%20the%20Indus,Indus%20Waters%20Treaty%2C%201960)> accessed 16 June 2022.
Carly A. Krakow, ‘The International Law and Politics of Water Access: Experiences of Displacement, Statelessness and Armed Conflict’ (2020) 12 (340) MDPI < file:///C:/Users/Windows%2010/Downloads/water-12-00340-v2.pdf > accessed 23 August 2022.
Bjorn-Oliver Magsig, ‘Overcoming State-Centrism in International Water Law: ‘Regional Common Concern’ as the Normative Foundation of Water Security’ (2011) 3 (1) Goettingen Journal of International Law < https://www.gojil.eu/issues/31/31_article_magsig.pdf > accessed 23 August 2022.
Carly A. Krakow, ‘The International Law and Politics of Water Access: Experiences of Displacement, Statelessness and Armed Conflict’ (2020) 12 (340) MDPI < file:///C:/Users/Windows%2010/Downloads/water-12-00340-v2.pdf > accessed 23 August 2022.
United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) < https://unece.org/environment-policy/water/un-watercourses-convention > accessed 7 November 2022.
Authors
Kirsten O’Connell, Team Lead & Coordinator (kirstenjeanoconnell@gmail.com)
Laura Tutek, Research Assistant (lauratutek@gmail.com)
Kate Maguire, Research Assistant (kmaguire12@fordham.edu)