The Indus Waters Treaty - Amid The Nosedive in Islamabad-New Delhi Relations

  0 comments   |     by Hussain H Zaidi on October 19 , 2016

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Amid the nosedive in Islamabad-New Delhi relations in the wake of the Uri attack, apprehensions are rife that India may terminate the Indus Waters Treaty (IWT) to penalise Pakistan. The Indian prime minister has also consulted his aides on having the treaty revised. For Islamabad, denunciation of the agreement by New Delhi will amount to a declaration of war.

Why is the IWT in the limelight? Can India unilaterally walk out of the treaty? The answer to such questions entails looking at the text of the treaty, which has been effective since April 1, 1960.

As stated in the preamble of the treaty, the IWT aims at fixing and de-limiting the rights and obligations of each party about the use of the waters of the Indus system of rivers comprising three western rivers – Indus,  Jhelum and Chenab – and the three eastern rivers – Ravi, Sutlej and  Beas. The last mentioned river does not enter Pakistan but joins the Sutlej before the country’s territory starts.

Article II provides that the waters of the eastern rivers shall be available for unrestricted use by India. However, domestic and non-consumptive use by Pakistan is allowed. Domestic use, under Article I, includes drinking, washing, sanitary and use of water for industrial purposes.

The same article specifically mentions that domestic consumption does not include agricultural use or generation of hydro-electric power. Non-consumptive use is for purposes such as navigation, fishing and flood control. Again, non-consumptive use precludes use for agriculture or hydro-electric power generation.

Article II also provides for a transition period beginning on April 1, 1960 and terminating on March 31, 1970 during which Pakistan was to have unrestricted use of the waters of the eastern rivers. Pakistan’s claim on the eastern rivers ended after expiry of the transition period.

Article III entitles Pakistan to unrestricted use of the three western rivers, albeit with some exceptions. In addition to domestic and non-consumptive uses, as in the case of the eastern rivers, the exceptions also included agricultural use and use for hydro-electric power generation. However, the treaty restricts the resort to these exceptions. India is also prohibited from storing water or building any storage on the western rivers.

Under Article IV, Pakistan undertook to replace the canals fed by the eastern rivers with western rivers. The same article also provides that non-consumptive use by any party shall not materially change water flow in any channel.

Article V requires both Pakistan and India to exchange data, on a monthly basis, about the flow in and utilisation of the waters of the six rivers. Article VII stipulates that in case either Pakistan or India plans to construct any engineering work which would interfere with the waters of any of the rivers in such a manner as would affect the other country materially, it shall notify its plans as well as provide the relevant data to the latter.

Article VIII sets up a Permanent Indus Commission comprising one commissioner for the Indus waters from each country. The commission serves as the regular channel of communication on all matters pertaining to the implementation of the treaty. The commission is required to meet annually.

Article IX puts in place an elaborate mechanism with regard to the interpretation or application of any provision of the IWT or settlement of any dispute that may arise about the rights and obligations of either country. The dispute settlement consists of three levels. The first level is the Permanent Indus Commission. In case the commission fails to sort the issue out, the next level is bilateral consultations between the two governments. In case the consultations also fail, the matter shall be referred to a neutral expert or a court of arbitration. The latter is to comprise three members or umpires

It was under Article IX of the IWT that Pakistan took India to arbitration on the Kishenganga (on the Neelum River, which meets River Jhelum at Muzaffarabad) and Ratle (on River Chenab) hydroelectric projects.

Under Article XII, the IWT may be amended with mutual consent. Unless amended, the treaty shall remain in force in the current form. The IWT does not have a sunset clause – that is to say, neither country can opt out of the treaty on its own.

The waters-sharing treaty has been a watershed in the history of the otherwise estranged Pak-India ties. The agreement has remained intact notwithstanding high tensions, even wars, between the two South Asian neighbours.

The major reason for that is that neither country can unilaterally amend, suspend or terminate the treaty. Therefore, in case India decides to opt out of the IWT or insists on having it modified without Pakistan’s consent, it will violate its international obligations. Not only that, pacta sunt servanda, one of the fundamental principles of international law, stipulates that every treaty is binding upon the parties signatory to it and that treaty obligations must be honoured in good faith.

Pakistan is a low riparian country and the rivers of the Indus system enter Pakistan through Indian territory. Like Kashmir, the issue of the distribution of the waters of the Indus system of rivers between Pakistan and India had its origins in the partition of India scheme. Under the scheme, the Punjab was bifurcated into West (Pakistan) and East (Indian) Punjab. The important headworks of Ferozepur and Madhpur were given to Indian Punjab. Those headworks irrigated about 1.7 million acres in the West Punjab.

The idea was to give the two new states joint control of the water channels. A standstill agreement was made to preserve the status quo till March 31, 1948. However, within 24 hours of the expiry of the agreement, India blocked the vital supplies to Pakistan from the Ferozepur and Madhpur headworks. 

River Indus and its tributaries are the life-blood of Pakistan. Therefore, any attempt by India to denounce the IWT will cause tremendous economic loss to Pakistan. It seems New Delhi wants to use the waters-sharing pact to pressurise Pakistan into toning down its Kashmir stance.

The writer is a graduate from a western European university.

E-mail: hussainhzaidi@gmail.com

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