Indus water treaty

CHAPTER V

From time immemorial man has been emotionally attached to water. Water disputes have existed throughout the history of mankind and various mechanisms to deal with problems have been tried. So far no clear cut directions or conventions have emerged to deal with water disputes. Many organizations, including legal associations, have tried to lay down some principles. The best of these are the Helsinki Rules evolved by the International Law Association in 1966 at its 52 conference at Helsinki[1]. However at best the Helsinki Rules can serve as guidelines and in the case of the sub-continent the conditions are different because they deal with distribution of water for the purpose of irrigation which is not the case of Europe. The recent stresses and strains in the observance of the Indus Water Treaty (IWT)[2]have been alarming. India has signed several agreements with its neighbours for sharing of waters of the major rivers of the subcontinent. Currently four major treaties govern the distribution of the waters of Ganges, Indus and Brahmaputra. These are the Indus Water Treaty (1960) between IndiaandPakistan, Sankosh Multipurpose Project treaty (1993) between IndiaandBhutan, theGanges Water Sharing Agreement (1996) betweenIndiaandBangladesh, and the Mahakali Treaty (1996) between IndiaandNepal. The reluctance in the observance of the Indus Water Treaty (IWT)[3]have had many analysts believe the relation between India and Pakistan will be governed to a large extend by issues of water sharing in the years to come.

The Indus River System

The northern and western part of the Indian subcontinent is irrigated by theIndusRiverand its system of upper tributaries. The Indus then travels a length of approximately 3000 kms through Tibet, Jammu and Kashmir, POK, and Pakistan before entering the Arabian Sea. There are several distributaries that join the Indus River in its journey to the seas and the most important ones which are discussed in this chapter areBeas,Sutlej,Ravi, ChenabandJhelumrivers.

The Indus Tributaries

Sutlej.Sutlej is the longest of the many tributaries that join the Indus. TheRiver Sutlejoriginates in Tibetand runs a course of approximately 1500 kms through the mountain ranges of Himachal Pradesh and entersPakistan through the plains of Punjab. The Husseiniwala Headworks has been constructed downstream at the junction between ofBeasandSutlej, the closure of which onMay 1, 1948 started the water crisis that encouraged the IWT. These Husseiniwals headworks supplied water to the State ofBikanerthrough BikanerCanaland the state ofBahawalpurfrom the DepalpurCanal. The Bhakra Dam, which Nehru called “the new temple of resurgentIndia,”[4]is also situated on this river. Another important headwork on thisSutlejis Harike that water the Sirhind canal and Rajasthan canal.

Chenab:This approximately 1000 km long river originates in Himachal Pradesh and is further augmented by Chandra and Bagha as it enters Jammu and Kashmir. After crossing the Pir Panjal range, it enters theSialkotdistrict inPakistan near the town of Akhnoor. The Marala barrage has been built by Pakistan across the river in 1968 as part of its design to harness the water of the river under the provisions of the IWT.

Jhelum & Kishenganga (Neelum):The Kishenganga river originates in the mountains west of Dras and is further met by a number of tributaries and merges withthe Jhelum River near Muzaffarabad in PoK. TheJhelumRiver originates in the foothills of the Pir Panjal Ranges near Verinag and then flows through the cities of Anantnag,Srinagar, Sopore and Baramulla. Some of its important tributaries are Lidar,Sindand Vishav.

Ravi:This approximately 800 km long river rises in HimachalPradesh and runs before joiningChenabinPakistanafter flowing pastLahore. The Thien Dam (Ranjit Sagar Dam) has been constructed on this river at the junction ofPunjab, Himachal Pradesh andJammu and KashmirStatesand feeds the Upper Bari Doab Canal.

Beas:This approximately 500 km long river originates nearRohtangPassin Himachal Pradesh and flows throughKuluValleyand theSiwalikRange. The Pandoh Dam is located on this and diverts water toSutlej through the Beas-Sutlej link.

The Indus Water Treaty

Even prior to 1947, as the irrigation from the Indus river systems covered a number of administrative units and water available was not always sufficient to meet the combined demands, disputes used to arise from time to time between these units for their share of water at different times of the year, and for the different projects contemplated by them[5]. The partition of India in 1947 was a complex problem and one which the then rulers of India did not solve satisfactorily. The problem was further complicated by the presence of several border princely states especially that of Jammu & Kashmir as well as the river systems of Indus, Ganges, and Brahmaputra. The Indus river system presented a very complex problem because all the rivers originated either in Jammu and Kashmir or India but the irrigated the areas of Punjab that had been allocated to Pakistan also headworks that regulated the flow of waters of these rivers were allotted to India.Apart from the Punjab Boundary Commission proposition that the canal-headworks system be considered as a joint venture, a suggestion discarded by both countries, no deliberations were carried out on water sharing during the process of partition. Problems arising out of water sharing issues of Indus System would later take more than 10 years to resolve.Further complicating this issue,Pakistancovertly and later overtly tried to take control of Jammu & Kashmir for many reasons including that of its perceived need to have the rivers of Jammu and Kashmir under its control which creating a feeling of animosity in the minds of the Indian politicians.

Both India and Pakistan agreed to a “Standstill Agreement” onDec 30, 1947thereby freezing the existing water systems at the two headworks of Madhopur (on theRavi) and Ferozepur (on theSutlej) untilMarch, 31, 1948[6]. Arbitral Tribunal (AT) was set up under Section Nine of the Indian Independence Act which was meant to resolve any dispute which the Punjab Partition Committee was unable to resolve. The East Punjab government decided to stop the flow of water to West Punjab on 01 April 1948 when the East Punjab government did not respond favorably to the idea of talks and therefore technically there was no agreement between these two government. Incidentally the term of the AT also finished on the same day.

At the invitation ofEast Punjab, the representatives of the two divided-Punjab States met in Simla on15 Apr 1948and signed two Standstill Agreements[7]regarding the DepalpurCanalandCentralBariDoabCanalto be in effect until15 Oct 1948. However, the West Punjab Government refused to approve the Agreement and the PM of Pakistan, called for a meeting. The Finance Minister ofPakistanalong with ministers from West Pakistan visitedDelhito work out an agreement[8]in the Inter-Dominion Conference held on May 1948.Indiaagreed to release of water from the headwork’s, but made it obvious thatPakistancould not lay claim to these waters.

Mr Eugene R. Black, the President of the World Bank visited India and Pakistan in 1951 and suggested that a team of Indian, Pakistani and World Bank engineers to solve the functional aspect of water sharing without getting involved in the political issues. The two countries accepted this mediation[9]. The World Bank also asked both the sides to give out their plan for the division of the water resources which both the countries did by Oct 53. While the plans of both the country were remarkably similar on the issue of availability of water it varied considerably on the critical issues of requirement[10].

In order to resolve the dispute, the World Bank finally proposed its own plan in Feb 1954 as India and Pakistan had failed to reach a consences. The plan offered the Indus, Chenab and Jhelum rivers to Pakistan whereas the three remaining rivers were offered to India.Indiaaccepted the proposalwhereasPakistangave only a “qualified acceptance” to the proposal. The plan suggested by the World Bank was far closer to the Indian proposal than that of the Pakistan one and in a way consolidated India’s position. Pakistan was not satisfied with this plan and even made a threat of withdrawing from the negotiations. Eventually the plan was not fully transformed into a settlement but provided provision for future negotiations which continued for the next six years.[11] [12]In the absence of a full agreement India and Pakistan signed an Interim Agreement in June 1955. As no definite agreement could be reached, the World Bank announced inApr 1956 that the negotiation deadline has been indefinitely extended.[13]

Under the World Bank plan,Pakistanwas to construct barrages and canals to divert the Western river waters so as to compensate the loss of Eastern rivers. The final treaty was signed by the head of states of the two country in the presence of the World Bank President on 19 Sep 1960. The treaty allocated the three Eastern Rivers toIndiaand the three Western rivers largely toPakistan. The IWT enunciated a mechanism to exchange regularly flow-data of rivers, canals and streams. A Permanent Indus Commission (PIC) was constituted, headed by two Commissioners, one from each country. The PIC is expected to meet at least once a year alternately inIndiaandPakistanand submit an annual report to their respective Governments before June, 30thevery year.

The IWT has seen several issues that have rocked the very foundation of the treaty. No more issue was more publicized than the aftermath of the attacks on the Indian Parliament. There was also a widespread demand withinIndiafor withdrawal from the IWT after the attack on the Indian Parliament onDecember 13, 2001. Apart from this some of the contentious issues have been elaborated in the succeeding paragraphs.

The Tulbul Navigation Lock/Wullar Barrage Issue

In order to improve navigation in the Wullar Lake , India planned to construct a barrage on the entrance of the lake so as to raise the flow of water as also increase the depth to accommodate larger vessels. This would result in the increase of the storage capacity of the lake and therefore Pakistan objected to the supposedly consummative use of water. Pakistan’s objection[14] [15]stems from two issues, one India needs to get consensus of the design from Pakistan andtwo, it cannot store waters as per IWT on the Jhelum Main anything in excess of 0.01 MAF.Pakistanalso feels that any storage of water on the Jhelum is a security risk as it would provide India with the capability to control the flow of water into Pakistan which could be used in an offensive nature.India’s argument[16]is that such a construction will not reduce the amount of water flowing to Pakistan and in fact it would also be beneficial toPakistanby regulating water flow to Mangla Dam. When the agreement was reached in 1991, the only point of contention that remained was the timing of the filling up of the lake.

The Salal Hydroelectric Project

This was the first major dispute successfully resolved bilaterally under IWT. The project provides waters toPakistanin a regulated manner but involves no diversion byIndia. However,Pakistansuccessfully objected to the construction of the six anti-siltation sluice gates which resulted in decreased power generation capacity. Indiaalso agreed to reduce the heights of the spillway gates from 40 feet to 30 feet.

The Ranbir andPratapCanals

The Ranbir Canal, were built by the Dogra rulers of Jammu and Kashmir and were meant to water the areas of Miran Sahib, Vijaypur and Madhopur. Under the treaty,Indiais allowed to take out a fixed quantity of water for these channels. Many restrictions, such as quantum and dates of withdrawal have been imposed onIndiaby the IWT.

The Kishenganga Project[17]

The project involves the construction of a 103 metre dam before the crosses the Line of Control (LoC) and a channel and a 27 Km long tunnel through theNorth Kashmirranges to transport the water to the Wullar lake where a hydroelectric power station will be built as part of an integrated project. Pakistanobjects to the Kishenganga project as it suspected that it would have an adverse impact on its envisaged 969-MW Neelum-Jhelumpower plant.This project was initially planned for 1994-1997 but lies inactive because of lack of funds. The Indian Kishenganga project is expected to lead to a shortfall of 21% loss of water flow in Neelum resulting in a 9% reduction in power for the Pakistani project.[18]

The Baglihar Project

The dispute over the Baglihar is technically complex. Pakistan has raised six objections relating to project configuration : free board, spillway ( ungated or gated), firm power, pondage, level of intake, inspection during plugging of low level intake, and wheather the structure is meant to be a low weir or a dam[19].One set of objections relates to the dam’s storage capacity, a second to the power intake tunnels, and a third to the spillways. As for the dam’s storage capacity, Pakistani officials call attention to the treaty’s allowance of only “run of the river” dams. Such dams are by definition non-storage dams-in other words, power is generated from normal river flow, the tapping of running not dammed water. In practice, Pakistanis concede, some storage is essential (and is explicitly authorized by the treaty): there is, after all, considerable (especially seasonal) variation in the flow of rivers, a fact that necessitates installation of sufficient storage to enable stable, efficient operation of the hydroelectric plant on a regular, year round basis.

Pakistani officials maintain that the Baglihar dam’s design supplies India with the means, on the one hand, to economically squeeze, starve or strangulate Pakistan, or, on the other hand, to flood Pakistan, conceivably for military purposes. They argue, moreover, that the Baglihar dam has huge precedent-setting importance: for Pakistan to compromise on Baglihar, they say, would set a precedent that India could invoke whenever it liked elsewhere on the Chenab or Jhelum rivers.

Dr Raymond Lafitte of the Federal Institute of Technology at Lausanne, Switzerland, was appointed by the World Bank and confirmed by India and Pakistan in May 2005 as the neutral arbitrator. Though Lafitte ruled favorably towards India on three of the four main criteria, both nations claimed victory[20].Each emphasized points of the ruling that favored their respective initial positions.

Reasons for Success

In spite of the various points of conflict in the IWT, the treaty can still be sited as an example of successful mediation by an international organization in dispute resolution. A unique mix of circumstances contributed to the success of the effort[21] :-

1. The World Bank played the “honest broker” honestly and impartially.
2. As both countries lacked financial resources to undertake projects independently the position of the World Bank became highly influential.
3. The discussion was consciously restricted to engineering principles and facts and filtered out all political discourse from the issue.

Despite the treaty’s success over the past decades, India and Pakistan have experienced numerous disputes over modifications to the flow of rivers. The increasing need to maintain a steady flow of water for survival and the recent rise in disagreement over aspects of the treaty raise the question of whether the treaty is still adequate[22]. Disagreements on construction of new reservoirs, declining ground water potential and the growing number of disputes with India[23] after a relatively uneventful period has complicated the situation for Pakistan and therefore arises the need to re-work the treaty.

1. ” India’s Water Wealth”, pp210.
2. No. 6032. TheINDUSWATERS TREATY 1960 between THE GOVERNMENT OFINDIA, THE GOVERNMENT OF PAKISTANAND THE INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT.
3. “A River Story”, Nandita Bhavnani,The Hindu,June 6, 2004
   http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2004060600580800.htm&date=2004/06/06/&prd=mag&
4. Department of Irrigation, Govt. of Rajasthan, http://www.rajirrigation.gov.in/4bhakhra.htm
5. “India’s Water Wealth”, pp211.
6. Ibid, pp211.
7. “Water Rationality: Mediating the Indus Waters Treaty”,Undala Z. Alam, University ofDurham
   http://www.transboundarywaters.orst.edu/publications/related_research/Alam1998.pdf
8. Inter-Dominion Agreement, between the GoI and GoP on the Canal Water Dispute between East and WestPunjab.
9. “Water Rationality: Mediating the Indus Waters Treaty”,Undala Z. Alam, University ofDurham
   http://www.transboundarywaters.orst.edu/publications/related_research/Alam1998.pdf
10. “IndusWater Treaty: Case Study”, Transboundary Fresh Water Dispute Database
    http://www.transboundarywaters.orst.edu/projects/casestudies/
11. “TheIndusWaters Treaty: A History” by TheHenryL.StimsonCenter
12. “Fostering Riparian Cooperation in International River Basins”, Syed Kirmani, Guy Le Moigne
    World Bank Technical Paper # 335, January 1997
13. “World Bank Historical Chronology 1950-1959”
14. “Water Disputes inSouth Asia”, Farzana Noshab, Nadia Mushtaq,Strategic Studies, Summer 2001, No.3, Vol. XXI, the Institute of Strategic Studies,Islamabad
15. “InternationalRiverWaters inSouth Asia: Source of Conflict or Cooperation?”
    http://irs.org.pk/spotlight.htm#VIII
16. “Delhi Round of Indo-Pak Talks-II Tulbul Navigation Project/Wular Barrage”, Mallika Joseph
    http://www.ipcs.org/newKashmirLevel2.jsp?action=showView&kValue=466&subCatID=null&mod=null
17. “330-MW Kishenganga Project gets Technical Clearance”,Iftikhar Gilani,KashmirTimes
    http://kasmirtimes.com/archive/0406/040619/news2.htm
18. Ibid
19. “Two Neighbours and aTreaty: Bagliar Project in Hot Waters” by Rajesh Sinha, “Water Conflicts in India” ,pp394.
20. “Resource Disputes in South Asis: Water Scarcity and the Potential for Interstate Conflicts”, Emma Condon, Office of South Asia Analysis , US CIA, pp 6.
21. “The Role of Independent Third Party Arbitration in Cross Border Water Disputes” by Nishesh Mehat.
22. “The China-India-Pakistan Water Crisis : Prospect for Interstate Conflict”, James F Brennan.
23. “The Indus Water Treaty” , Subrahmanyam Sridhar.