Securing the Indus treaty

Brahma Chellaney, The Hindu, August 5, 2016

edit1Water sharing, transparency and collaboration are the pillars on which the unique Indus Waters Treaty was erected in 1960. Islamabad’s recently unveiled intent to haul India again before an international arbitral tribunal is a testament to how water remains a source of discord for Pakistan despite a treaty that is a colossus among existing water-sharing pacts in the world.

In Asia, the vast majority of the 57 transnational river basins have no water-sharing arrangement or any other cooperative mechanism. India, however, has water-sharing treaties with both the countries located downstream to it, Pakistan and Bangladesh. These treaties govern the subcontinent’s two largest rivers, Indus and Ganges. By contrast, China, despite its unrivalled international status as the source of river flows to more than a dozen countries, stands out for not having a single water-sharing arrangement with any co-riparian state.

Significantly, India’s treaties with Pakistan and Bangladesh are the only pacts in Asia with specific water-sharing formulas on cross-border flows. They also set a new principle in international water law. The 1996 Ganges treaty set a new standard by guaranteeing delivery of specific water quantities in the critical dry season.

India’s Indus largesse

The Indus treaty stands out as the world’s most generous water-sharing arrangement by far, in terms of both the sharing ratio (80.52 per cent of the aggregate water flows in the Indus system reserved for Pakistan) and the total volume of basin waters for the downstream state (Pakistan gets 90 times greater volume of water than Mexico’s share under a 1944 pact with the U.S.). It is the first and only treaty that goes beyond water sharing to partitioning rivers. It drew a virtual line on the map of India to split the Indus Basin into upper and lower parts, limiting India’s full sovereignty rights to the lower section and reserving for Pakistan the upper rivers of Jammu and Kashmir — the so-called “western rivers.”

Today, it remains the only inter-country water agreement in the world embodying the doctrine of restricted sovereignty, which seeks to compel an upriver state to defer to the interests of a downstream state. Treaty curbs, for example, obviate any Indian control over the timing or quantum of the Pakistan-earmarked rivers’ trans-boundary flows.

Given that water is J&K’s main natural resource and essential for economic development, the gifting of its river waters to Pakistan by treaty has fostered popular grievance there. The J&K government in 2011 hired an international consultant to assess the State’s cumulative economic losses, estimated to be hundreds of millions of dollars annually, from the treaty-imposed fetters on water utilisation. Demands in the J&K legislature for revision or abrogation of the Indus treaty are growing since a resolution seeking a treaty review was passed in 2003. The backlash from underdevelopment, made worse by a Pakistan-abetted insurrection, has prompted New Delhi to embark on several modestly sized, run-of-the-river hydropower projects in J&K to address chronic electricity shortages.

Pakistan’s obstructionist tactics

Run-of-the-river projects are permitted by the Indus treaty within defined limits. But Pakistan wants no Indian works on the three “western rivers” and seeks international intercession by invoking the treaty’s dispute-settlement provisions, which permit a neutral-expert assessment or the constitution of a seven-member arbitral tribunal. By aiming to deny J&K the limited benefits permissible under the treaty, Pakistan wishes to further its strategy to foment discontent and violence there.

This Pakistani strategy was exemplified in 2010 when it instituted international arbitration proceedings over India’s 330-megawatt hydropower project on a small Indus tributary, the Kishenganga (known as Neelum in Pakistan). It persuaded the arbitral tribunal in 2011 to order India to suspend work on the project. With Indian work suspended, Pakistan ramped up construction of its own three-times-larger, Chinese-aided hydropower plant on the same river so as to stake a priority right on river-water use.

The tribunal’s final ruling in late 2013 represented a setback for India. It allowed India to resume work on the Kishenganga project but with a stiff condition that India ensure a minimum flow of 9 cumecs of water for Pakistan. Prescribing such a minimum flow went beyond the treaty’s terms and the laws of nature.

More importantly, the arbitrators separately delivered a general prohibition against drawdown flushing in all new Indian hydropower projects. In a 2007 decision on the earlier Baglihar case instituted by Pakistan, an international neutral expert held that gated spillways to help flush out silt were consistent with the treaty’s provisions. Yet the arbitrators, disregarding the Baglihar decision and the common international practice of constructing spillway outlets to control silt build-up, issued a prohibition that potentially affects the commercial viability of all future run-of-the-river projects in J&K.

Pakistan’s move to institute new arbitration proceedings over the Kishenganga and Ratle projects is a fresh reminder as to how India’s unparalleled water generosity has engendered unending trouble for it. In 1960, India thought it was trading water for peace by signing the treaty. Within five years of the treaty’s entry into force, Pakistan launched a war to grab the Indian part of J&K in 1965.

Today, Pakistan’s water relationship with India is becoming murkier due to China’s construction of dams in Pakistan-held Kashmir. While railing against India’s small-sized projects, Pakistan is pursuing mega-dams, such as the 7,000-megawatt Bunji Dam and the 4,500-megawatt Bhasha Dam. By way of comparison, the biggest dam India has built since Independence is the 2,000-megawatt Tehri project in Uttarakhand.

Onus on Islamabad

What China did recently — publicly trash an arbitral tribunal ruling that found it has no legal or historical basis to claim most of the South China Sea — was not an isolated case: major powers rarely go for international arbitration or accept arbitral tribunal awards.

Pakistan, by waging a constant propaganda battle against India on the waters issue, risks undermining the Indus treaty. And by repeatedly invoking the treaty’s conflict-resolution provisions to bring on international intercession, it risks sending the wrong message to India — that compliance with treaty obligations and arbitration decisions is counterproductive. In the absence of an enforcement mechanism in international law, nothing can stop India from emulating the example of the major powers.

Pakistan insists on rights without responsibilities. In fact, its use of state-reared terrorist groups can be invoked by India, under Article 62 of the Vienna Convention on the Law of Treaties, as constituting reasonable grounds for withdrawal from the Indus treaty. The International Court of Justice has upheld the principle that a treaty may be dissolved by reason of a fundamental change of circumstances.

If Pakistan wishes to preserve the Indus treaty, despite its diminishing returns for India, it will have to strike a balance between its right to keep utilising the bulk of the river system’s waters and a corresponding obligation (enshrined in international law) not to cause “palpable harm” to its co-riparian state by exporting terror.

Brahma Chellaney, the author of Water, Peace, and War: Confronting the Global Water Crisis and Water: Asia’s New Battleground, is with the Centre for Policy Research.

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