The subcontinent’s partition of 1947 led to numerous land and water conflicts between India and Pakistan. While the Kashmir conflict has not had a solution yet, the division of shared rivers was set out in The Indus Waters Treaty (IWT). The water distribution treaty was brokered by the World Bank and signed in 1960 in Karachi, Pakistan, signed by the then Indian Prime Minister Jawaharlal Nehru and Pakistan’s President Ayub Khan.
It took nine years of negotiations between both the countries and the treaty is considered one of the most successful international treaties, having stood the test of time, and surviving through three wars that the two adversaries have fought. Different challenges and disagreements that have arisen over the years are handled by the Permanent Indus Commission, which has a commissioner from each country.
The Indus system of rivers comprises of three western rivers (Indus, Chenab and Jhelum) and three eastern rivers (Sutlej, Beas and Ravi). Partition of India created conflict over how the waters of the Indus would be distributed. The geography of partition meant the source rivers of the Indus basin were in India, which led to fear in Pakistan. The idea that India controlled the tributaries that fed water into Pakistan’s rivers created fear in the country.
Initially, the Inter-Dominion Accord was signed in May 1948. This meant that India released sufficient waters to Pakistan’s parts of the basin and Pakistan would make annual payments to India. This was, however, not a permanent solution and only met immediate requirements. Pakistan suggested taking the matter to the International Court of Justice, but India refused, saying there needed to be a bilateral solution to the conflict.
By 1951, there was a deadlock. The two governments were not meeting but both were anxious to find a solution, knowing full well a conflict could arise. In the book ‘Indus Waters Treaty: An Exercise in International Mediation’ by Niranjan Das Gulhati an anonymous Indian official is quoted as saying: “India and Pakistan can go on shouting on Kashmir for all time to come, but an early settlement on the Indus waters is essential for maintenance of peace in the sub-continent.”
The idea of World Bank brokering an agreement was proposed by former chairman of the US Atomic Energy Commission David Lilienthal, who was visiting the subcontinent in 1951. Then president of the World Bank Eugene Black wrote to the governments of both the countries saying the Bank was interested in the economic progress of both countries and the water dispute could hinder development. India, who initially argued against third party involvement, agreed to the Bank’s proposal that it would merely act as a conduit for agreement and would not adjudicate.
However, the agreement would take almost nine years, as initially, both countries were unwilling to compromise their positions. Pakistan argued on the basis of ‘historical right to waters of all Indus tributaries’, and that Pakistan’s Punjab was under threat of desertification.
In 1960, the IWT was signed, a treaty that was agreeable to both countries.
According to the treaty, all the water of eastern rivers, with the mean flow of 33 million acre-feet (MAF) will be available for unrestricted use in India. The control over the water flowing in the three western rivers, with the mean flow of 80 MAF, was given to Pakistan. Since Pakistan’s rivers received more flow, India was allowed to use the western rivers for ‘non-consumptive’ needs. Non-consumptive means India can use it for irrigation, storage, and electricity production.
While the treaty has survived the test of time, there have been certain times the treaty has come into focus as India and Pakistan fight over other issues. After the Uri cross-border attack in 2016, for example, Indian Prime Minister Narendra Modi had said, “blood and water cannot flow simultaneously”.
Disagreements and disputes regarding water issues have, however, been settled via legal procedures. According to the World Bank, the IWT sets forward procedures to handle any issues which may arise between the two adversaries.
“‘Questions’ are handled by the Commission; ‘differences’ are to be resolved by a Neutral Expert; and “‘disputes’ are to be referred to a seven-member arbitral tribunal called the ‘Court of Arbitration’”, says the Bank.
The biggest dispute that has come regarding the use Indus Waters is India’s plan to construct Kishenganga and Ratle hydroelectric power plants on a tributary of Jhelum and Chenab respectively. According to the IWT, these two rivers have been allocated to Pakistan. While India is permitted their use for non-consumptive needs, the two countries disagree on whether the design features of the plants contravene the treaty.
The Kishenganga project in Indian Jammu and Kashmir was inaugurated by Indian Prime Minister Modi on May 19, 2018. Islamabad became aware of New Delhi’s plans for construction in 1988, when it asked its neighbour to pause work. Construction started in 2007 but in 2010 Pakistan appealed to the Permanent Court of Arbitration, the first and only under the IWT. The court gave its verdict in 2013 allowing India to continue work on the projects as long as minimum flows were maintained.
The dispute does not stop there – in 2016, Pakistan again reached out to World Bank asking for a court of arbitration to review the technical designs of both projects, saying they believed India was violating the treaty and the court’s 2013 verdict.
India asked for a neutral expert to decide the matter (Pakistan disagreed because a neutral expert’s decision would be non-binding).
There has been no resolution to this recent disagreement despite dozens of high-level meetings. Pakistan, however, has responded to India by inaugurating its own hydro-electric power project – the Neelum-Jhelum Hydroelectric Project – in 2018.
Following the recent Pulwama attacks, India’s Union Minister Nitin Gadkari said that India has decided to stop the flow of its share of water to Pakistan. Pakistan said they were not concerned at the moment, because that move would entail India breaking the IWT.
The upholding of IWT rests entirely on the willingness of both countries to cooperate. For now, despite three wars, and recent war rhetoric, the treaty continues to be upheld.
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