Context:

Water Resources Minister Nitin Gadkari recently tweeted that the government had decided to stop India’s share of waters in the Indus river system from flowing into Pakistan.

Coming amidst noisy calls for a strong retaliation against the Pulwama terror attack, Water Resources Minister statement seemed to indicate a new policy direction from the government.

The policy direction had, in fact, changed more than two years earlier in the wake of another terrorist attack, on an Army camp in Uri in September 2016.

Indian Rights to be utilised fully without violating Indus Water Treaty, 1960:

Indus Water Treaty is considered to be one of the most successful water-sharing endeavours in the world today. For 56 years, both India and Pakistan are peacefully sharing the water of Indus and its tributaries, thanks to The Indus Water Treaty (IWT).

When India decided to exert much greater control over the waters of the Indus basin, while continuing to adhere to the provisions of the 1960 Indus Waters Treaty that governs the sharing of these waters with Pakistan.

A high-level task force was set up under the stewardship of the Principal Secretary to the Prime Minister to ensure that India makes full use of the waters it is entitled to under the Treaty.

Indus Water Treaty, 1960:

• The Indus Water Treaty (IWT) is a water-distribution treaty between India and Pakistan signed on September 19, 1960.

• The treaty was signed by the then Prime Minister Jawaharlal Nehru and Pakistan’s President Ayub Khan. It was brokered by the World Bank (International Bank for Reconstruction and Development).

• The Indus Waters Treaty (IWT) deals with river Indus and its five tributaries, which are classified in 2 categories:
• Eastern rivers: Sutlej, Beas and Ravi.
• Western rivers: Jhelum, Chenab, Indus

• According to treaty, all the water of eastern rivers shall be available for unrestricted use in India. India should let unrestricted flow of water from western rivers to Pakistan.
• It doesn’t mean that India can’t use western river’s water. The treaty says that India can use the water in western rivers in “non-consumptive” needs. Here non-consumptive means we can use it for irrigation, storage and even for electricity production. (But India has not fully utilized this provision so far).

• The treaty allocates 80% of water from the six-river Indus water system to Pakistan.
• A Permanent Indus Commission was set up as a bilateral commission to implement and manage the Treaty. Though Indus originates from Tibet, China has been kept out of the Treaty.

Status of the Indus river system presently:

Historically, India has never made full use of its rights, neither on the Eastern nor on the Western rivers.

On the Western rivers specifically, there has been no pressing demand for creation of new infrastructure on the Indus rivers, either for hydroelectricity or irrigation.

With a large proportion of farmers in Jammu and Kashmir having moved to horticulture from traditional crops, the demand for irrigation has gone down over the years.

After the devastating floods of 2014, it was argued that storage infrastructure could have been built on these rivers as a flood-control measure.

As a result of India’s under-utilisation of its share of waters, Pakistan has over the years benefited more than it is entitled to under the Treaty.

More than 95% of Pakistan’s irrigation infrastructure is in the Indus basin — about 15 million hectares of land. It has now become the world’s largest contiguous irrigation system, comprising over 60,000 km of canals.

Three of Pakistan’s biggest dams, including Mangla, which is one of the largest in the world, is built on the Jhelum river. These dams produce a substantial proportion of Pakistan’s electricity.

However, claims from Pakistan:

• Even before India’s shift in policy, Pakistan had often complained that it was being denied its due share of waters, and that India had violated the provisions of the Indus Waters Treaty in the manner it had designed and implemented many of its projects on the Indus rivers.

• The result has been an increasing number of objections being raised by Pakistan on the projects that are coming up in India.

• The two countries have permanent Indus Water Commissions that meet regularly not just to share information and data, but also to resolve disputes.

• Until a few years ago, most of these disputes would be resolved through this bilateral mechanism. The dispute over the Baglihar dam was the first one that Pakistan referred to the World Bank, which had brokered the Indus Waters Treaty.

• In the case of the Kishanganga project, where the matter was referred to a Court of Arbitration, a higher level of conflict resolution under the Treaty, Pakistan managed to get a partially favourable decision.
• Some disputes over the Kishanganga have remained unresolved and are currently being addressed.

• In recent years, Pakistan has raised objections on many other projects, including the Ratle project, the Pakal Dul dam, and Sawalkot. Officials say the main objective of Pakistan seems to be to delay these projects, thereby forcing a cost escalation and making them economically unviable.

Can India walk out of the pact unilaterally?

The treaty has no provision for either country unilaterally walking out of the pact.

Article XII of the treaty says “The provisions of this Treaty, or, the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments.”

Still if India wants to go about abrogating it, the country should abide by the 1969 Vienna convention on the law of treaties.

Conclusion:

India currently has no treaty with upstream China on their shared rivers. How that relationship develops will determine India’s future water availability and in turn how India behaves towards downstream Pakistan.

Similarly, Pakistan and Afghanistan have no water sharing agreement for the Kabul River, an important tributary of the Indus which supplies up to 17% of Pakistan’s total water.

As Afghanistan strives to develop its hydropower, with the help of Indian finance, this could instigate a whole new conflict on the Indus itself.

India has never used our rights on the western rivers. Under the Indus Water Treaty, we can make use of the waters of the western rivers for storage to an extent, and even for producing electricity, in the manner specified.

But it is clear that these new challenges require all countries in the basin to acknowledge their dependence on each other and discuss joint solutions.

Expanding the water sharing agreement to include Afghanistan and China would be a start. Including these two countries, especially China, would also help to address the power asymmetry between India and Pakistan and pave the way for a more holistic sharing agreement over the Indus waters.

If we just do what we are entitled to under the Treaty, it would be enough to send jitters through Pakistan. It would be a strong signal without doing anything drastic.