Renegotiation of the Indus Waters Treaty looks inevitable; an opportunity to address environmental issues: Daniel Haines

The Hindu

a day ago

Sharing river waters across political geographies, be it within a sovereign country or between two or more nations, is always contentious. Matters become more complicated when rivers run across countries weighed down by discord. The Indus, which nested a historic civilisation; from which the world's largest democracy; a subcontinent; and, indeed, the third largest ocean; get their names, is among the world's longest rivers and runs across India and Pakistan, both birthed out of British India in 1947.
The Indus basin, with a drainage area of about 1,165,000 sq km, according to the Encyclopaedia Brittanica, was developed into a vast network of irrigated canals during British India, when the river system was within one political unit. The partition of India also meant that its waters were to be shared. After initial difficulties, the Indus Waters Treaty (IWT) – a tripartite agreement between the International Bank for Reconstruction and Development (IBRD, World Bank), India and Pakistan – insulated the Indus from political bickering and, more specifically, episodes of warfare. However, on April 23, a day after the Pahalgam attack, India put the IWT in abeyance.
In an interview to The Hindu, Daniel Haines, Associate Professor in the History of Risk and Disaster, Department of Risk and Disaster Reduction, University College London (UCL), discusses the making of the Treaty, the concerns flagged by both countries even before April 23, and the implications of the ongoing impasse. Professor Haines authored Rivers Divided: Water in the Making of India and Pakistan, (2017), which brings out the making of the Indus Waters Treaty in the context of a shared colonial history of the two countries and the Cold War era when the pact was signed, and Building the Empire, Building the Nation: Development, Legitimacy, and Hydro-Politics (2013) in Sind, 1919-1969, (2013).
Although 'there are some parts of Pakistan that are really quite vulnerable', Prof. Haines says in this 20-minute interview given at UCL, 'it isn't the case that India has a kind of hand on the tap of the whole water supply to Pakistan.' Excerpts:
Professor Haines, For the first time since the Indus Waters Treaty was signed, one of the signatories, India, has put it in abeyance. This was not the case in the past even during military escalations between the India and Pakistan. What are your initial reactions?
This is a new development in the history of the Indus Waters Treaty. As you said, the Treaty, which was signed in 1960 to resolve issues to do with water sharing in the Indus basin allocating different streams to Pakistan and to India, has held remarkably steady throughout all of the previous military conflicts between India and Pakistan. In 1965, 1971, and in 1999. However, this year after the terror attack in Pahalgam, the Government of India put the treaty into abeyance, which means that it is not currently observing the strictures of the Treaty.
Before we get into the details, could you take The Hindu's readers through 'sovereign rights' and 'territorial integrity' in the context of the Indus waters?
Certainly. The basic issue between India and Pakistan is very similar to the basic issue between most countries where there are shared rivers and disputes over the allocation of water. One country is upstream and so has the first access to the water. The other country is downstream and is potentially vulnerable if the upstream country takes more water out of the system.
In the case of India and Pakistan, this is really complicated by the history of partition and colonial canal development. Punjab, which is agriculturally the most important province of Pakistan, and the States of Punjab and Haryana, which are also agriculturally very important parts of India, were all developed as one single province under British colonial occupation in the 19th and early 20th centuries.
In 1947, the partition boundary cut across this irrigation system, sliced it in two, and very quickly, the two governments of Punjab in India and Pakistan began disputing the operation of some canal headworks. The dispute started quite small. It was to do with the water flow in a couple of particular canals. It quickly scaled up, escalated to encompass the whole of the Indus Basin, or at least as much of it as in India and Pakistani controlled territory.
Broadly speaking, the Indian argument was and remains that India has the right of sovereignty over the water which flows through Indian territory. In other words, any water that's going through Indian held territory is India's by right, and whatever India allows to flow to Pakistan is, if you like, a benefit, not a right, to Pakistan.
As you might imagine, Pakistan has the exact opposite argument, which is that as the downstream party, it has complete rights to continue receiving water and India doesn't have the right to take anything out of the system beforehand. There are some layers of complication here because Pakistan's original arguments were based mainly on history in that most of the canal colonies constructed during the colonial period were in the parts of Punjab that again then became Pakistan and also in Sindh, which obviously was part of Pakistan after 1947. There is a principle known in international water law as prior appropriation, under which the person who first starts using the water has the right to continue using it. India's position is known in international law as the doctrine of absolute sovereignty.
Does India's position as a successor state change any of these, or is it a [fresh] treaty between two independent countries?
You mean a successor state of the British Empire? It has a really interesting angle on the Indus dispute. The short answer to your question is 'no'. When the two countries signed the Indus Waters Treaty in 1960, it didn't matter from a legal point of view that they had previously been part of one country. However, as the Indian government was formulating its position in the early days of the waters dispute, that turned out to be really important because both states didn't become fully separate from Britain, or rather, from the legacies of the empire. In those early days, they both remained part of the Commonwealth, the British Commonwealth.
There was a provision which the Government of India had accepted in 1940 under British colonial control that Member States of the Commonwealth would not refer their international disputes to the International Court for Justice. That was really an attempt by Britain to keep the Commonwealth as a bit more like an empire but a bit less like a collection of completely independent countries. But the Government of India was able to use that provision to refuse Pakistan's requests to take the Indus dispute to international arbitration in the late 1940s and early 1950s.
It required a lot of exchanges of letters and legal opinions within the Indian government to actually agree that Pakistan was technically a foreign state. That wasn't entirely clear to Jawaharlal Nehru or his senior advisors in the late 1940s, early 1950s. It's a little-known part of the end of Indus story, which I hope your readers might be interested in.
The other point which you flag into your book is how India shut down the waters flowing into Pakistan in 1948. That, perhaps, catalysed the Treaty.
Absolutely. In 1947, at the moment of partition, the governments of East and West Punjab signed something called a standstill agreement by which the engineers in East Punjab agreed to allow water to continue flowing into Pakistani Punjab.
That standstill agreement, though, expired at the end of March 1948, and at the beginning of April 1948, East Punjab engineers shut down the water supplies into two quite important Pakistani canals. This had the effect of depriving, some estimates say, maybe eight per cent of Pakistan's cultivable land – of all the land in Western Pakistan, what is now Pakistan - would not be able to grow crops in that period. As you might imagine, this gave a real fright to the Pakistani government and to agriculturalists. So, the two governments, the Governments of India and Pakistan, got involved and in May 1948 signed an agreement by which Pakistan agreed to pay large charges to India for the continued flow of the Indus waters. Pakistan never made the payments and quickly repudiated that agreement. The whole arrangement ground to a stalemate until the early 1950s, when the World Bank began facilitating negotiations between the governments of India and Pakistan again.
But why the World Bank?
The World Bank got involved, I wouldn't say exactly by accident, but it's a funny story of how they got involved. There was an American technocrat [past Chairman of the Tennessee Valley Authority], David Lilienthal, who visited India and Pakistan in 1951 and then published an article arguing that the US needed to solve the Kashmir problem in order to let India and Pakistan resolve their regional differences, as he saw it, and join the western camp in the Cold War. But he thought that was unlikely to happen while the Kashmir conflict was ongoing.
Lilienthal thought the Kashmir conflict would be too difficult for the Americans to solve. He was quite right about that. He thought the Indus waters dispute would be a good starting point as a kind of confidence building measure, so he proposed that the World Bank [International Bank for Reconstruction and Development, IBRD] could get involved rather than the US government as a third party.
We know the Word Bank very well today. It's one of the most famous international institutions in the world, has a huge amount of power, well established ways of working. That was not the case in the early 1950s. It was a new institution. It had raised capital that it didn't really know what to do with, and it was looking for its role on the world stage.
I don't know if the Bank would agree to an exercise like this now because it's outside its remit as it has been developed but in the 1950s it sounded okay to the Bank. So, the Bank, India and Pakistan all came together for three party negotiations, not bilateral.
Quite unique, I would say. The other thing about the dispute right now is that although there is a sharing of waters, there were also constraints on the upstream state building reservoirs that seems to have been a bone of contention between the two states. Would you like to elaborate?
Absolutely. The Indus Waters Treaty is really weird because what it's done is that it separated out tributaries of the Indus River system on a geographical basis. This is almost unheard of in international water agreements. Nearly all of them that that exist in the world are about sharing the waters of one stream of waters. If you take the Ganges Water Treaty, which India has with Bangladesh, signed in 1996, that's volumetric. It assigns a certain volume of the flow to India and a certain volume of the flow to Bangladesh at certain times of year. The Indus Treaty, by contrast, assigns the whole flows of the three Western tributaries that are normally called the Western rivers of the Indus basin to Pakistan. The Indus Main [defined by the treaty as 'the main stem of the named river excluding its tributaries but including all channels and creeks of the main stem of that river and such connecting lakes as form part of the main stem itself'], the Jhelum and the Chenab.
India acquired full rights over the three Eastern rivers, which are the Sutlej, the Ravi, and the Beas. There was this caveat though: India was allowed to construct hydropower works on the Western rivers as long as they didn't materially interrupt the water flow, so Pakistan was supposed to receive about the same amount of water at about the same time of year from the same streams as it would if India hadn't constructed anything.
The tension between India and Pakistan that we've seen since the late 1990s has really been over the specific provisions of the plans that India has developed for projects on the Western rivers which Pakistan has claimed breached the terms of the Treaty.
So, would it be possible to say that the Treaty coming to this situation [India putting it in abeyance] was in the making and Pahalgam just hastened it?
It's very difficult to say definitively without having an inside line on the thinking of senior decision makers in the Indian government, which I don't have, but I think it's fair to say that serious reservations and serious tension has been emerging for the Government of India, at least since the mid-2010s. There were a couple of third-party arbitration and decisions in the mid-2000s and the early 2010s.
Broadly speaking, the first decision over Baglihar in 2005, roughly went in India's favour and the Court of Arbitration decision about the Kishan Ganga project in 2013 was more like a draw. So, there were points on both sides. But Pakistan certainly did better out of the 2013 decision than the 2005 one. After that, the mechanisms for addressing problems and tensions began to breakdown.
To cut a long story short, India and Pakistan have both invoked separate resolution mechanisms and neither recognises the one that the other has been pursuing, and the World Bank has allowed both to run simultaneously. It's understandable from the Indian point of view why the Government got increasingly frustrated with the Treaty. At the beginning of 2023, the Indian government sent a note to the Government of Pakistan saying that it wanted to renegotiate aspects of the Treaty. And, if I had to guess, I would imagine that this probably had something to do with the dispute resolution mechanisms, which had, as I said, been increasingly frustrating to New Delhi.
Coming to the now: what is the impact of the present action?
You'll see a wildly different estimates of how much of an impact this could have on Pakistan, and I think a really firm answer would take a degree of hydrological knowledge that's a bit beyond what I can claim to, but I can give a rough idea.
Very roughly speaking, as far as I can make out, just over a third of the water that Pakistan gets in the Indus River System comes through the Indian administered territory. This is way more than some estimates. I've seen some Pakistani environmentalists are asserting that Pakistan generates 90 per cent of its own surface water resources within its own territory, and I've seen alternative claims that India controls 80 per cent of Pakistan's water. I think the truth is in the middle.
I think it's roughly one-third of the water seems to come from Indian territory that's under Indian control. And I'm not saying anything about the sovereignty of Jammu and Kashmir, I'm talking about who controls what territory. Now that is much less bad than some people in Pakistan might imagine, because the fear in Pakistan is India can effectively shut off water entirely. But where Pakistan really has vulnerabilities is on the river Chenab because that in that case India contributes pretty much the entire flow of the stream in as far as the river crosses into Pakistan, which has no storage works on the Chenab, so it doesn't have any capacity to build up a stock of water in case India interrupts the flow, which it could do on the Jhelum where it has the Mangla Dam, which is a big project or on the Indus Main Stem where it has a series of storage works. So, there are some parts of Pakistan that are really quite vulnerable. It isn't the case that India has a kind of hand on the tap of the whole water supply to Pakistan and at present because India has been restrained by the provisions of the Treaty for the storage works. It's been prevented from developing large amounts of storage on the Western rivers by the treaty so far. It would take years, if not decades, for India to really build up the capacity to have a huge impact on water flow.