Indus Water Treaty of 1960

INDUS WATER TREATY OF 1960

by

William H. Thompson

[February 2013]

The Indus Water Treaty (IWT) of 1960 is an example of a mutually beneficial conflict or, as Kriesberg and Dayton would define it, a constructive conflict. Born of the dissolution of the British Crown Colony of India in 1947, the treaty recognized the mutual needs of India and Pakistan, and the necessity of ensuring continuing access to the waters of the Indus River System for both nations. Although the treaty has survived “two and a half wars and frequent military mobilizations” as well as a nuclear arms race, current moves by both Pakistan and India regarding dispute mediation threaten to dissolve the treaty. Differences in interpretation, Pakistani mismanagement of its own water resources and the ongoing question of the status of Kashmir each threaten the continued observance of the treaty. Neither nation can afford the loss of this treaty. For each nation this treaty has been a source of ongoing diplomatic relations, requiring annual meetings and open verification of water projects within the covered regions. It has been used to address non-water issues and to placate each other in times of crisis. It has also ensured that water continues to flow between the two, in spite of the strategic advantage that India could gain by stopping that flow. This paper will outline some of the dangers affecting the future of the IWT. It will address the interpretation of treaty clauses by neutral parties and how that has resulted in diplomatic escalation by Pakistan. It will address the very real concern for Pakistan that India has the superior strategic position with regard to control of the Indus System. It will also highlight the inadequate water infrastructure within Pakistan and the affect that this has on the ability of India to complete its own water projects. The paper will describe certain indicators of the health of the treaty. Finally, it will outline two scenarios for the future of the IWT and the likely outcome of each. The goal of addressing these issues is to stress the importance of this treaty over national concerns for control of water and how the mutual control of the Indus system is the best solution for both nations. Before exploring the continued existence of the Water Treaty of 1960, and the potentially far reaching effects of its nullification, it is necessary to provide a brief history of the Indo-Pakistani conflict, especially as it relates to the Kashmiri region and control of the Indus River System. When the British Parliament passed the Indian Independence Act of 1947, its primary concern was achieving a speedy settlement of the partition rather than the stability of the resulting entities. Sir Cyril Radcliffe, the English barrister charged with partitioning the Indian colony into two separate entities, arrived in New Delhi on 8 July 1947 to learn that the date of independence for both newly formed nations of India and Pakistan had already been set for 15 August of that same year. The rules for the partition of India and Pakistan, established in negotiations between the British representative Lord Mountbatten, the Indian National Congress representative Jawaharlal Nehru and the Muslim League representative Muhammed Ali Jennah, focused the division along religious lines. In certain provinces with no clear religious majority, most notably those bordering Punjab and Bengal, the citizens of the province were to be given the opportunity to vote over which country to join. Independent princedoms, such as Kashmir, were given the option of joining with either state, but were encouraged to hold a plebiscite if the desires of the people were in doubt. The resulting boundaries would have three far-reaching results. First, the sudden change in citizenship (from nominally British to Pakistani or Indian respectively) resulted in bloodshed and mass-exodus as Muslims moved from India to Pakistan and Hindus moved to India from Pakistan, as well as an almost instantaneous nationalism within both nations. Second, when establishing borders between the states it did so with little regard to natural boundaries, such as rivers, and little thought to allocation of the infrastructure and resources now shared by the two states. What had been created by one central government, such as irrigation systems, canals, and dams, was now controlled by two with no standing agreement over how they should be shared. Finally, in giving the rulers of independent princedoms the right to choose which country to join, the prince was expected to abide by the wishes of his subjects; in the case of Kashmir, the prince made his own choice. Common sense should have dictated that the province becomes the northernmost province of Pakistan: Its people were predominantly Muslim and it controlled the flow of the Indus River into Pakistan. Kashmir as a province of Pakistan was likely the vision of the British, Muslim and Hindu negotiators of the partition. Unfortunately, the status of the various princedoms, including Kashmir, was left to each ruling prince. Although not alone in originating the Indo-Pakistani conflicts, the decision of Hari Singh, the Maharaja of Kashmir, to join India rather than Pakistan has played a vital role in exacerbating them. One oddity of the partition of the former British colony is the Standstill Agreement. This agreement stated that the flow of the Indus between East and West Punjab (India and Pakistan) would remain at the same level from the date of partition until 31 March, 1948 and that Pakistan would pay a set fee for the water that flowed. As Pakistani forces crossed the border of Jammu and Kashmir to protect Muslims and Indian forces were airlifted into Kashmir to defend India’s territorial boundaries, the dams, canals and barrages along Indus tributaries continued to operate and adjust flows to ensure that water reached the fields of Pakistan. And, as these things occurred, Pakistan continued to pay its water fee to India. However, on 01 April, 1948, with the agreement ending and no new agreement in place, the flow of water stopped. Although India and Pakistan would agree to a resumption of water deliveries, two precedents had been set: Pakistan recognized that it was in an untenable position and India had demonstrated that it would abide by existing agreements but, in the absence of agreement would act in its own best interests. In 1952, the World Bank offered to mediate the dispute over Indus Waters. The resulting treaty, based on the water usage needs of each, water availability in the Indus System and mutual development of the watershed granted India the use of several rivers flowing through Kashmir for power generation, but stipulated that the usage must allow free flow of the waters into Pakistan. Each nation must announce water development plans and allow for the inspection of these projects by engineers from the other nation. It established a Permanent Indus Commission, made up of engineers from each nation, which would meet annually to discuss development issues and treaty implementation and established steps for dispute arbitration. Modern interpretation of the provisions of a treaty established in 1960 have strained the agreement and resulted in an escalation of Pakistan’s arbitration demands. Until 2005 all disputes over water projects had been resolved through the annual meetings of the Permanent Indus Commission. This changed with Indian plans to build the Baglihar Dam, a hydroelectric project, across the Chenab River. Although planning began in 1992, Pakistani engineers first objected to the project in 1999 on the grounds that it blocked the free flow of water within the Indus System in violation of the IWT. India contended that, in spite of the fact that it did not comply with the original treaty, the design of the dam was sound and that it would not only allow for the flow of water but would ensure that water supplies were available throughout the year. Pakistan referred the dispute to the World Bank for neutral arbitration under terms of the IWT. Although the neutral arbiter agreed in principal that the Indian project violated some aspects of the treaty, the violations were determined to be based on “sound and economic design and satisfactory construction and operation” and the project was allowed to continue. While Pakistan agreed to the decision of the World Bank, its next dispute, over the Kishanganga Hydroelectric Dam, was taken directly to the International Court of Arbitration. Although this level of arbitration is specified in the IWT, it is the first time that any dispute under the treaty has been taken to this level. The fact that Pakistan skipped neutral arbitration in favor of the International Court may be a signal that it mistrusts the neutrality of the World Bank. Although the Court has not yet ruled on the project, a ruling in favor of India may convince Pakistan that the treaty is no longer in its best interests. The escalating arbitration demands of Pakistan reflect some concern over individual water projects, which was reflected in its arbitration request concerning the Baglihar Dam project, and more concern for the strategic implications of the Indian system as a whole. As most agree, no single Indian project could shut down water supplies to Pakistan. However, there is general agreement that India holds the superior position regarding control and usage of the Indus River. And there is agreement that the sheer number of dams along the northern Indus System could indeed have adverse effects on the water available to Pakistan. While Indian water needs are fulfilled by three rivers, the Ganges, the Brahmaputra as well as the Indus, Pakistan is served almost exclusively by the Indus, over which India maintains control. Although India contends that it has never diverted water from Pakistan, the water stoppage of 1948, when East Punjab halted water flow into West Punjab, is ever present in Pakistani strategic thought. India has the greater GDP, and therefore a greater ability to withstand delays to its water projects, and a larger military, so it cannot be easily intimidated into acceding to Pakistani demands. As Pakistani negotiators have stated, the Indian negotiating strategy is “one of delay, of foot dragging, of ‘tiring you out’;…of “creating facts”, proceeding with construction plans, even when aware that the plans might well violate the treaty, so that Pakistan, confronted eventually with fait accompli, would have no choice but to cut its losses and accept an unfavorable compromise settlement; and … insisting on a bilateral framework of talks, without intending ever to settle on any but India’s terms.” Although Pakistani negotiators may believe that India can drag negotiations on, the reality is that each referral to arbitration has put a great burden on India in time to completion. In the case of the Baglihar Dam, India announced its plans in 1992, began construction in 1999, the project was taken to arbitration in 2005 and the entire project was not completed until 2010. This case is similar to other projects which have taken 10+years from commencement, through negotiation, to completion. Some, especially within Pakistan, have suggested that the treaty is no longer useful, that it is too strategically disadvantageous to Pakistan and that the only solution to the issue is to take control of Kashmir and the northern Indus System. Others have expressed concerns that India’s hydroelectric projects may force Pakistan to abrogate the treaty and spark a war over Kashmir and control of the Indus. Whether concerns over war between the two nuclear nations are meant as a warning or a threat they have come often enough since the dispute over the Baglihar Dam that they must be seen as a real concern. With multiple Indian hydroelectric projects in the planning stage (although the actual number is in dispute), the opportunities for “hawks” within Pakistan to demand war will continue to place pressure on politicians and the military to accept nothing less than a halt to all projects. The disputes over Indian projects have allowed Pakistan to divert attention away from its own weaknesses with regard to water availability. Although Pakistan often contends that Indian projects on the northern Indus have resulted in a loss of useable water within Pakistan, it is “a case of wastage and unequal distribution by internal forces” that has resulted in less water availability within Pakistan. This loss in water availability is due to aging transfer systems (pipes, canals), increasing silt levels within dams, corruption and inefficiency and low expenditure on water sector development. Ninety percent of Pakistan’s irrigable water is supplied by the Indus; an aging system of canals, barrages and hydroelectric dams within Pakistan has resulted in waste within its own water management systems. This is largely a result of heavy sediment composition of the Indus. Water storage systems and canals have filled with sediment over time, resulting in less water availability and susceptibility to flooding, especially during heavy monsoonal rains. The IWT has been used as a means to, if not settle other non-water related disputes, to at least achieve a hearing of them, or to ease the tensions between the nations. Most recently, in 2009, the Pakistan Commissioner of Indus Waters had been asked about developments on the Nimoo-Bazgo Hydro Project and whether his office had inquired about inspecting the development. His response was that “We would like to go there when the tension between India and Pakistan following the Bombay attacks ease.” In the wake of the Mumbai attacks, the Pakistani official chose to delay his inspection to avoid inciting an already tense situation. India had threatened to pull out of the treaty as a response to cross-border terrorism in 2001-2002, and has used its control of the upper Indus to exert pressure on Pakistan to halt attacks. Although this may be viewed as using its hegemonic power over water flows to exert pressure, the alternative is that war was avoided through the use of the existing treaty. Should either India or Pakistan see the treaty as having outlived its usefulness, the nations have two choices: nullification or renegotiation. Renegotiation would be the most desirable choice for the nations and the region. Indeed, renegotiation of the treaty may be a necessity. Guarantees of water deliveries through the Indus system may be unsustainable if climate change models are correct. Pakistan is currently able to store only 30 days of water, leaving it highly vulnerable to even mild fluctuations in water flow. This vulnerability exists in a period when the Indus is at its highest flow in 500 years due to the melting of the Himalayan glaciers that feed the system. The expectation, although the calculations differ, is that the flow will slow as the glaciers recede, leaving both India and Pakistan struggling for water. Signs that offers to renegotiate are real would have to include two things; 1. Renegotiation would have to be open to public scrutiny and third party mediation and 2. They would have to include cooperative agreements on joint water projects. Renegotiation of the treaty under these conditions would indicate that both parties are committed to the IWT in some form. Nullification may be more difficult to predict. As stated above, the treaty itself has survived at least three and a half conflicts and terrorist incursions. Escalation of hostilities may not be a reliable indicator of nullification. The current escalation of arbitration demands under the current treaty may provide some warning, should Pakistan reject the findings of the current International Court arbitration. Although the current case was brought over the Indian Kishanganga dam, it is actually a story of two dams. Pakistan is currently building a dam on the same river, the Neelam-Jhelum Dam. Should arbitration be decided in India’s favor, the Kishanganga dam will divert water away from the Neelam-Jhelum, making the dam useless. Should this occur and the two nations are unable to come to some accommodation, Pakistan may determine that the treaty is no longer in its best interest. Without the treaty its guarantees of water flow into Pakistan, the nation may see war as the only alternative. There are two likely scenarios for future developments with regard to the IWT. The first is and most likely scenario is a renegotiation of the treaty. For renegotiation to occur, it would most likely need to be initiated by India, as such an offer would likely be seen by the Pakistani public as bowing to Indian pressure. In addition, were Pakistan to request a renegotiation, India most likely would have the upper hands in discussions. The catalyst for renegotiation would most likely be the ongoing demands for arbitration from Pakistan and the continuing delays in Indian construction projects. In return for a greater freedom to build on the upper Indus, India would have to offer significant concessions, the most likely being the instigation of joint projects to ensure more efficient irrigation to Pakistani cropland and more effective flood mitigation. Should India successfully convince Pakistan that a new treaty would provide more favorable water availability and would result in less control over the Indus System by India, then the renegotiation could be both a diplomatic and public relations success. The end result would be that both countries would be much better prepared should the flow of the Indus be reduced in the future. The second scenario is less hopeful and also less likely. Should Pakistan determine that the existing treaty is no longer in its best interest and it believes that Indian projects will result in less water availability on the Indus, Pakistan may nullify the treaty. In this case, war would be highly likely to occur as Pakistan attempts to seize control of Kashmir and the upper Indus River. This scenario itself has three likely outcomes. 1. In order to avoid a nuclear war, the international community brokers a cease-fire. India retains control of Kashmir and effectively ends both Pakistan’s claims to the province and any obligations to allow the free flow of water to Pakistan. While Pakistan would still receive some flow, mainly as a result of flood control measures and sediment flushing from Indian dams, it would not be enough water to enable Pakistan to adequately irrigate or to provide fresh water to its people. The aging irrigation infrastructure would continue to deteriorate, compounding an already untenable situation. The threat of nuclear war would hang over the region for the foreseeable future as radical elements within Pakistan are able to seize power and Pakistan becomes a failed, pariah state. 2. As a result of a brokered cease-fire, Kashmir achieves independence. Kashmir brokers its own water treaty with both India and Pakistan: India agrees to maintain the existing hydroelectric dams and water storage in return for continued access to the electricity being generated. Pakistan continues to receive flow from the Indus River, but at lower levels than under the IWT as Kashmir diverts and stores some of the water for its own irrigation. Pakistan’s irrigation and storage systems continue to deteriorate, but at a less noticeable pace than under the first nullification scenario. Radical elements are able to achieve some power within Pakistan, but moderates are able to maintain control and because of the existing water treaty are able to contract assistance from China and the United States to upgrade irrigation and water storage. Although still a nuclear power, Pakistan is unable to maintain parity with India on a military or economic level, effectively diminishing the threat of nuclear war. 3. Pakistan achieves strategic surprise and is able to seize control of Kashmir and the upper Indus River prior to the brokered cease-fire. Rather than increasing the flow of water to irrigate, Pakistan maintains the current hydroelectric systems built by India, selling some of the power to India and diverting the rest for its own use. Pakistan fails to address its own interprovincial water sharing issues: In addition to existing squabbles between Punjab and Sindh, it has added Kashmir to the mix with its own demands for irrigation and fresh water. Although Pakistan is able to maintain water flow to support irrigation, it is below the level of the IWT. India and Pakistan continue their adversarial relationship but without the benefits of diplomatic exchange. Radicals within Pakistan are able to exploit the inequitable division of water between the provinces and, in spite of its Muslim majority, Kashmir never becomes a fully integrated part of Pakistan. Because of its need to maintain both a military balance with India and to secure its facilities against domestic terror attacks, it is unprepared for the dropping water flow due to the recession of the Himalayan glaciers feeding the Indus. The region continues to be an international concern as China and the United States jockey for influence. Although the scenarios regarding a nullification of the IWT may be unduly negative, most academic studies agree that the Indus Water Treaty of 1960 is too important to regional relations for either India or Pakistan to seek an alternative. Whether the treaty continues in its present form, which is increasingly unlikely, is renegotiated as part of a larger brokered deal, or is restructured according to some recognition of Indian responsibility to its neighbor, the treaty has survived an ongoing adversarial relationship for 53 years due to both its effectiveness and its utility. With the worldwide potential for resource scarcity, the potential exists that other nations sharing water resources could model their own disputes on the IWT, but only if Pakistan and India are able to resolve their own ongoing issues.