Water Security Management

The IWT Through the Legal Lens

The soul of our planet has to be preserved for the survival of the present and future generations. Every civilization got nurtured under its feet. Regardless of any ideology, religion or race, with every passing day, clean water forces us to “re-imagine” [not to rethink] how to deal with it appropriately. So far the relationship by and between man and water is somewhat strange – one pollutes and the other one purifies him.

It is not unusual that Pakistan has a transboundary water treaty with its neighbor like other countries in the world. The Indus Waters Treaty (IWT) has some contradistinctions which are alien to other international water treaties and International Law. This subject has many legal, social, financial, environmental and political dimensions. In this article just a few legal angles are touched upon so that readers can also reflect on the subject. The IWT was signed on September 19, 1960 and was ratified in January 1961. Since 1948 both sides were floating together on an interim arrangement and were busy in negotiating at intervals, as per their own perspectives. Compared to Pakistan, at the time of partition, India was much ahead in terms of its infrastructure. The leadership of that time accepted two mega infrastructure projects and were unable to sustain the pressure of international forces and in that scenario, the IWT was executed. Water is a strategic asset, a fundamental ingredient of national security and prosperity. At the time when the IWT materialized, the ecological and technological canvas was different.

Both countries so far have not declassified all the papers and information, even World Bank is mute on most of the details of the historic page of IWT negotiations. So, in the absence of such vital information, each and every role is difficult to be described fully.

Let’s see two-three aspects of the IWT through the legal lens. Under International Law and principles in vogue for the sharing of international rivers, based on historic uses and otherwise, wherever the international river flows, every riparian nation is entitled to use the water that traverses through its jurisdiction without causing such an impairment which is detrimental to the rights of other riparian nations. For instance, the accomplished German Jurist, Lassa Francis Lawrence Oppenheim (1858-1919) is of the considered view:

“But the flow of not-national, boundary, and international rivers is not within the arbitrary powers of one of the riparian States, for it is a rule of International Law that no State is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighboring State. For this reason, a State is not only forbidden to stop or to divert the flow of a river which runs from its own to neighboring State….”

For instance, the oldest treaty on water-related issues is pertaining to River Danube (Central & Eastern Europe) which started through the Treaty of Paris 1856 and have transformed into 1994 Danube River Protection Convention – the Danube, which once was a long-standing frontier of the Roman Empire now flows from ten countries smoothly and is the second-largest river in Europe. The IWT would have transformed into a much better deal had there been mutual trust and good relationships in both the countries. What can be said while one side is not even willing to share any playground, how can they then be expected to talk about IWT related issues? Taking an inflexible position is detrimental to the peace of the region.

Other acclaimed jurists on the subject have similar views and the same was given to the broker of the IWT, meaning thereby World Bank (WB), but Pakistan was forced to accept the proposal drafted by its counsel Davidson Sommers.

Resultantly, IWT is the only water-related treaty which is not based on the universal principle of “sharing” of water resources. It is the sole evidence that six rivers were “divided” without any cogent reason, fairness or logic. Through this treaty, three Eastern Rivers (Sutlej, Beas and Ravi) were given to India with no condition and/or string attached and water of the rest of three Western Rivers (Indus, Jhelum and Chenab) were allocated to both the parties in such a way that it cannot be called a fair distribution (I respect the contrary views taken on this point). Western Rivers are distributed between India and Pakistan with certain stringent conditions for Pakistan despite it being a lower riparian state. There are international norms of sharing of natural resources and based on fairplay the neighboring states are enjoying the resources in harmony. For instance, the oldest treaty on water-related issues is pertaining to River Danube (Central & Eastern Europe) which started through the Treaty of Paris 1856 and have transformed into 1994 Danube River Protection Convention – the Danube, which once was a long-standing frontier of the Roman Empire now flows from ten countries smoothly and is the second-largest river in Europe. The IWT would have transformed into a much better deal had there been mutual trust and good relationships in both the countries. What can be said while one side is not even willing to share any playground, how can they then be expected to talk about IWT related issues? Taking an inflexible position is detrimental to the peace of the region. The only way forward for both sides is to sit and talk, to live and let live. In addition, the role of World Bank with regards to the Pakistani interests is not that accommodating as it should have been.

India has other sources of water unlike Pakistan which is squarely dependent on three Western rivers of Indus Basin. Pakistan should act more diligently. With no control over over-population, Pakistan will be more adversely affected if required measures are not taken within time, the ruthless environmental degradation is not stopped and glaciers are not preserved.

It is a known fact that the Kishanganga project has reached completion despite the still unaddressed concerns of Pakistan. Very recently, a new letter was sent to the World Bank stating that the Pakistani delegation of the Indus Water Commission was not allowed to visit various controversial projects. The last round of World Bank facilitated secretary-level talks between India and Pakistan in September 2017 were held in Washington and that too ended in disappointment for the latter. The World Bank so far has arranged two rounds of talks in the recent past but failed to bring New Delhi to the negotiating table for a meaningful dialogue.

The Indus Basin has six rivers and being the largest contiguous irrigation arrangement it encompasses four riparians – China, Afghanistan, India, and Pakistan. This fact invites keen attention to another dimension of IWT. The IWT is between two countries. From the distribution point of view, both China and Afghanistan cover 13% of the Indus Basin but they are not a party to IWT. Every part of the world is facing water crises. What if China and Afghanistan decide to have some water oriented projects on Indus Basin in their own territories, in that scenario how will the rights and obligations agreed upon by India-Pakistan be governed under IWT? Clearly, brand new dimensions are in front of us and can be adopted for their resolution.

Before we worry about the future, it is important to learn from our past experiences. After the IWT came into effect Pakistan was deprived of the Eastern Rivers thus impressing upon finding new ways to maintain its needs reliant upon fresh waters. On the other side of the border, a planned work was in progress to extract the maximum from the Western Rivers making Pakistan’s worries more acute. When India decided to construct Salal Dam on the Chenab River in 1970, Pakistan raised objections.  It was 1974 when under IWT the first planned major activity was shared by Pakistan’s neighbor. It was concerning Salal Dam, in the district of Udhampur of occupied Kashmir territory, with a proposed capacity of 690 MW hydroelectric power generation. Pakistan’s objections were with regard to the design and storage capacity of the dam. These objections raised by Pakistan as well as its concern about the inadequate shared information were not taken into consideration. Both sides entered into negotiation in 1976 to resolve the issues. Keeping in mind the time and space of this controversy, still, it is a good example that in the light of Annexure-D of the Treaty; both sides agreed after eight years on a workable solution when the agreement on the design of Salal Dam was signed in April 1978.

There is a lesson for Pakistan in this project of 450MW on River Chenab that never let India delay the matter. Because with every passing day, options to look into the matter for neutral experts and/or of arbitrator would be decreasing. The project may have been completed by the time the neutral expert or an arbitrator makes a final ruling.

On the other hand, Wullar Barrage is one of the outstanding issues between the two countries; wherein Indian man-made storage capacity of 300,000 acre feet of water is a classic example of the violation of Annexure-E of the Treaty. The violated annexure restricts India from making any man-made efforts to construct storage capacity on River Jhelum in excess of 10,000 acre feet of water storage capacity.

The second water project that became a point of contention between the two signatories of the IWT was the Wullar Barrage. The issue arose in 1985 when the Wullar Lake project’s construction on the Jhelum River became known to Pakistan. The construction of a barrage of 439 feet in length at the site of Wullar Lake to improve navigation through water storage was the cause of objection raised by Pakistan. The Indian conduct, intention and advancement on the so-called Tulbul Navigational Project/Wullar Barrage may lead to a big dispute and its desire to use this as geostrategic tool cannot be materialized if it has respect for International Law.

Our region is not that fortunate, there are not many instances where the disputes were resolved through bilateral negotiations and without bringing in a third party.  Particularly so with India’s desire to always have the ball in its court. After exhaustive five-year deliberations, when Pakistan became finally successful in bringing the matter to the World Bank in 2005, most of the construction had already been done and Pakistan’s repeated requests to India fell on deaf ears. Both the countries agreed upon the appointment of Swiss Professor Raymond Lafitte of Swiss Federal Institute of Technology, Lausanne – having vast experience in the field of dam construction – as the neutral expert. In 2007, the ruling more favorable to India was based on the fact that the project technically and economically was not viable – in other words, the checks and balances on India under Article III – 2 (d) along with Annexure-D and other applicable provisions were subordinate to modern technical points instead of agreed terms and conditions or International Law. Pakistan had an airtight case but its vital points were not given weight due to various circumstances such as conduct of Pakistani team on the ground as well as the reactive mode of the neutral expert and his natural tilt towards construction of dams. There is a lesson for Pakistan in this project of 450MW on River Chenab that never let India delay the matter. Because with every passing day, options to look into the matter for neutral experts and/or of arbitrator would be decreasing. The project may have been completed by the time the neutral expert or an arbitrator makes a final ruling.

While negotiating a deal, sometimes, the exit strategy is there but herein IWT, an exit clause was not possible because it relates to the lifeline for both sides. Therefore, unilaterally either side is barred from deviating from the IWT.

In 2007, the construction started on the Kishanganga Dam. This hydroelectric power project had a planned capacity of 330 MW on the major tributary of River Jhelum. Almost in the middle of 2010, it was agreed upon by both sides that the matter will be referred for international arbitration. On two main points, arbitration proceedings were dwelled on thoroughly. On the basis of Treaty provision i.e., Annexure-D, Paragraph 15 (iii), India in the instant case is entitled to divert the water from one tributary to another one for the generation of hydropower provided and it will maintain 9 cumec minimum flow. On the second point, the ruling came in Pakistan’s favor in a way that India, except in an unforeseen emergency situation, will bring the reservoir of its run-of-the-river plant below the dead level in all circumstances. Had Neelum-Jhelum Project been completed, our position before the International Arbitration Court would have been better. Nevertheless, this ruling has rectified the potential threats caused by the decision of Baglihar Dam which was not within the parameters of IWT.

India has other sources of water unlike Pakistan which is squarely dependent on three Western rivers of Indus Basin. Pakistan should act more diligently. With no control on over-population, Pakistan will be more adversely affected if required measures are not taken within time, the ruthless environmental degradation is not stopped and glaciers are not preserved.

Both sides have their own point of views in the form of desired changes in the IWT. The IWT can further be negotiated and it has inherent inbuilt contrivance such as:

• Under Article XII, Sub-article (3), “The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.”

•   And under sub-article (4) of the Article XII, “The provisions of this Treaty, or the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.”

The IWT has survived wars and their aftermaths and still continues to work as a manageable mechanism. In addition, despite so many wrinkles in the relations of both parties to the treaty, from Salal Dam to Wullar Barrage to Kishanganga and Ratle Schemes and all the concerned, they have relied on IWT in one way or the other, for providing solutions. We may have some substantial concerns towards the conduct of World Bank under IWT and feel threatened with concern to the aggressive plans of hydro-based projects in India, and yet this document is holding the field.

Both countries missed the opportunity at COP 21 (December 2015, Paris Climate Conference) when both the heads of the States were there and outstanding issues related to IWT were also on agenda items but other than shaking hands not a single move was made.

While negotiating a deal, sometimes, the exit strategy is there but herein IWT, an exit clause was not possible because it relates to the lifeline for both sides. Therefore, unilaterally either side is barred from deviating from the IWT. Having said that the IWT has some more potential challenges.

The neighboring side is divided into two groups as far as the IWT is concerned. The conservative group looks to this treaty as obsolete and the other one suggests making changes in its existing draft.

Unfortunately, more than water, trust is being diminished from both sides and this is the basic challenge attached to the IWT and otherwise. The issue is so grave that for around 7 billion people only 0.03% fresh water is available out of the total 2.97% of fresh water on the planet. On this globe, 79-80 million people are born to share the same 0.03% of the available fresh water.

Pakistan could have negotiated better terms and conditions for IWT, nevertheless, had its concerns not grown with the infrastructures developed by the neighboring country on Western Rivers which resulted into legal issues, the IWT would still be a manageable and agreeable mechanism.

Both sides are facing water crises and with each passing day this issue is automatically magnifying due to no control over ever increasing population. In India, the extremely conservative approach practiced towards its neighbor and its deliberate muteness in every regard in addition to the rise of fanaticism in the whole region and non-resolution of outstanding issues present great hurdles in moving forward and bringing both sides on the table for peace and prosperity.

Talking about the conservative neighboring side that the IWT is repudiated on the principle of rebus sic stantibus (fundamental change in the circumstances) and it should be terminated because time has changed, new technology and development in the field of science have emerged along with new techniques of water management etc. Well, the Treaty cannot be renounced on the basis of shallow arguments and unmet demands.

Each side is facing the shortage of this precious treasure and advancement of science, technology, and water management should step forward in curtailing the stemming issues from the IWT and should be used for better, efficient and fair water distribution/management for both sides.

Water has no parallel or substitute and if at this hour we will not give it the due priority then both sides will continue to suffer from water issues and the crisis which will ensue from it.

Given the constraints originating from Pakistan having a lower riparian, ruptured basin and loss of leverage (i.e., Eastern Rivers), we have to adopt a multi-pronged strategy based on water rationale to protect our water rights within the parameters of the IWT. This can be done through: effective implementation of Article VI, enhancing transboundary water management under Article VII, construction of small, medium and large-scale water storage resources, adopting latest methods for recharging groundwater aquifer, use of high-efficiency irrigation system, introducing less water consuming trees, plants, and crops, by bringing improvements in watercourse lining, efficient water usage and sustainable water resource management. At individual, society and government level there is a dire need to educate people through every medium about the significance of the soul of the planet, effective conservation of water, its usage and good management.

Keeping in mind the past experiences, delaying tactics of India and its perpetual hegemonic attitude, Pakistan should take appropriate measures. Instead of looking at the IWT only through legal lens, Pakistan should enhance its spectrum of understanding and the gravity attached to the issues in hand, speed up work on data gathering, engage in sophisticated monitoring of the adversarial impacts of the IWT and those caused by India’s dam constructions. Pakistan has already sacrificed its rights and it is imperative that India abides by the terms and conditions of the IWT in letter and spirit. In addition, the government of Pakistan should formulate a comprehensive high-powered mechanism to safeguard its interests under IWT, wherein all the concerned disciplines have an effective representation and role.


The writer is a Berkeley graduate, partner at LAW-REX,  Vice President at the Center for Global and Strategic Studies, Pakistan. He served as the “International Legal Specialist” for ADB and Executive Director for Legal Management Solutions-UK.

E-mail: [email protected]

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