Indus Water Treaty: Next Victim of Water Wars? Part – II

Continued from part – 1
This article is the final article in a 2 Part series covering the historic Indus Water Treaty (IWT). In the previous part, we have explored the dynamics of India and Pakistan with reference to IWT.  We will continue and appraise the IWT with norms of international laws and conventions on sharing of international river basins. There are a total of 261 river basins in the world which are shared by co-riparians. Due to the lack of a universal agency to enforce the water sharing mechanism between states, international and conventions on water sharing are difficult to implement.
Generally, the upper riparian states claim absolute territorial sovereignty, with the right to use and exploit the waters in their own territory without any consideration of the effect of such use and exploitation on the lower riparians. Lower riparians claim the absolute integrity of the river, claiming that upper riparians have no right to take any action that alters the quality/quantity of water in the basin. The contradiction of these two stands results in inordinate delays in resolution of disputes related to sharing of water between co-riparians.
IWT vs. International Laws and Conventions
The Rule of Equitable Utilization was codified by the UNGA in May 1997 as the first principle of water sharing in Article 5. This rule enjoins the co-riparian states to utilize and international water course in an equitable and reasonable manner. It gives the right to each co-riparian to participate in protections, use and development of all international water basins in an equitable manner.
Besides the Principle of Equitable Distribution, the UN Convention also accepted the second principle of water sharing called the ‘No-Harm Rule’ in Article 7. This rule seeks to protect the existing uses of water. Though it may appear contradictory to the first rule of equitable utilization, the UN Convention has clarified that the Law of Equitable Utilization takes precedence over the No-Harm Rule.
Equitable sharing of waters of an international river basin is not easy to define. However, certain guidelines have been laid down in Article 6 of the UN Convention as under:
  1. Natural character to include geography, hydrography, hydrology, ecology, climate etc.
  2. Economic and social status and needs of the co-riparians.
  3. Implications and effects of use(s) of water basin by one co-riparian on other(s).
  4. Present and future potential uses of the water basin.
  5. Protection, conservation and development of water resources in a cost effective and economic manner.
  6. Whether alternatives to a particular type of water use are available.
All disputes are to be referred to the International Court of Justice (ICJ) and all parties must agree to doing so as also accept the court’s verdict. Since every country treats water as a strategic resource there is always reluctance in referring it to the ICJ. The IWT was the first international water sharing treaty negotiated with the help of a neutral third party and at the time of signing, the UN Convention of 1997 was not in vogue. Thus the application and implementation of international water sharing laws always remains a question mark with the UN.
Comparison of IWT with other Water Sharing Treaties
Treaties on sharing of international river basins vary based on the following parameters-The no. of parties to the agreement (Bilateral/Multilateral), territorial extent (Entire basin or part of it),subject matter of cooperation (data collection, allocation, planning, construction works etc.) and intensity of cooperation, ranging from sharing of information to joint planning and implementation of common developmental projects and programs. Based on the above mentioned parameters, the major water sharing treaties can be classified into following categories:
  1. The Most Committed and More Cooperative Basins- this includes basins like Niger (nine members) and Rio Grande / Colorado (two members). The Niger River Commission is a multipurpose institution with broad authority over the entire basin for areas of data collection, navigation, irrigation, development, hydropower and environmental monitoring. In the case of Rio Grande / Colorado, the International Boundary and Water Commission manage the two basins as well as the border between the USA and Mexico. The commission has developed a unique and equitable approach and deals with all aspects governing water quality and sanitation, flood control and water allocation. Over the years, it has expanded its jurisdiction due to the high level of cooperation between the two states.
  2. River Basins with Medium Levels of Cooperation- in this category, the co-riparian states cooperate only in certain specific areas, e.g. Elbe River Basin. The International Commission for the Protection of River Elbe has the narrow mandate of ensuring water quality for drinking water supply and irrigation.
  3. River Basins with Least Cooperative Regimes- the Indus and Ganges-Brahmaputra river basins have cooperation regimes restricted to very narrowly defined areas. In the case of the 1996 treaty on sharing of Ganges waters between India and Bangladesh at Farakka. The treaty refers to a single use i.e. how much Ganges water will be used by India and Bangladesh in various seasons in order to ensure that India has enough water to flush the port of Kolkata. In case of the IWT, the jurisdiction of the Indus commission is restricted only to inspection and monitoring as India and Pakistan utilize their water resources individually and there is no joint management of the basin.
Thus, it can be seen that an elaborate framework of cooperation without mutual trust and willingness to cooperate doesn’t guarantee the success of water sharing treaties. On the other hand, the Elbe basin is a successful model of cooperation despite a narrower mandate of cooperation due to willingness and trust between the co-riparians. However, the IWT is considered a successful treaty as Indian and Pakistan, with their bitter history of conflict and mistrust, needed to maintain low levels of commitment and cooperation. Though the IWT called for cooperation in joint planning and development of the Indus Basin by India and Pakistan, no matter requiring joint planning has been proposed by either side thus far. The IWT has, therefore, been a ‘conflict resolution’ rather than a ‘basin management’ treaty.
We will now offer a few suggestions to ensure this iconic treaty that has stood the test of time, 3 wars and constant strife remains a model of India-Pakistan cooperation, more so at a time when water scarcity is a harsh reality and given the history of these warring nations, it could turn a historic treaty into the next victim of Water Wars.
In the specific case of Pakistan which depends on the Indus river basin for most of its water requirement, the World Bank’s Strategic Country Environment Assessment Report, 2007 mentioned that the per capita availability of water in Pakistan had declined from about 5000 cubic meters in 1951 to about 1100 in 2007, just above the internationally recognized scarcity rate. It further estimated that this would drop below 700 cubic meters per person by 2025.
Even if Indian dams on the Western rivers are destroyed, it would make no fundamental change to the availability of water in Pakistan for three reasons. One, the Indian infrastructure on these rivers is mostly run-of-the-water, with no additional storage after the initial filling is done. Two, India has still not fully utilized the amount of storage authorized to it by the treaty. Lastly, Pakistan is struggling with storage of even the present amount of water resources, with no new major dams since the Tarbela Dam, which is also under stress due to silting. Its storage capacity as decreased from an initial 9.6 million acres foot (MAF) to about 6.6 MAF due to lack of maintenance over the years. To rectify this problem now will need monetary and engineering resources that may exceed the current capability of the Pakistan economy.
Despite its generous hydro diplomacy, India has not been able to exploit its own water resources or earn some goodwill from its co-riparian neighbours. Similarly, Pakistan also faces acute domestic pressure over the inter province rivalry over the distribution of Indus waters. The idea of ‘Water Rationality’ proposes that countries act to safeguard their long term supply of fresh water. Towards this end, cooperation rather than conflict appears to be a more probable and beneficial option between the two co-riparian nations. Pakistan has been following the legalistic approach in dealing with the water sharing issues with India because of which it ends up blocking and delaying most of the Indian projects. As most of the Indian projects on the Western rivers are meant for development of the region of J&K, Pakistan’s approach should be based on ‘human security approach’. This would be mutually beneficial to both sides as India can ensure development of the state of J&K and Pakistan will benefit from the regulation of supplies which fluctuate between floods during monsoon to no supply during the dry months. Water needs to be treated as an apolitical resource. The IWT had to be negotiated for over 12 years due to the politicization of the technical and engineering issues related to the sharing of the waters. The World Bank was forced to modify its proposal of joint management of the Indus Basin to division of rivers between the two states. The current day objections being raised by Pakistan are more political in nature rather than being objective and related to the provisions of the IWT. It is in the interest of both the countries to strengthen the bilateral mechanism of the Permanent Indus Commission and resolve issues on a technical basis rather than getting into time consuming and seemingly never ending international arbitration.
Both Pakistan and India need water, but there is a colossal amount of wastage of ground water due to inefficient irrigation and on other accounts of mismanagement of water. While farming takes only 3 percent of water withdrawals in the UK and 41 percent in the USA, the percentage is as high as 90 percent in India and Pakistan. Water management can be improved by undertaking actions under the three basic categories i.e. increase supply, decrease demand and improve quality. No new water sources are likely to be developed in the near future. On the contrary, existing water supply is likely to be depleted in due course of time due to global warming and silting of rivers and dams. In order to improve the supply of water, focus has to shift on better water management practices, some of which include wastewater reclamation, water harvesting and desalination. This would also include improvement of the irrigation canal network in Pakistan Punjab, which has seriously degraded over the years due to neglect.
Demand can be decreased/ rationalized by improvement in irrigation techniques. Both India and Pakistan use flood irrigation technique which not only leads to large amount of wastage of water, but also causes degradation of the quality of soil due to salivation and silting. Alternative water efficient techniques like drip irrigation need to be developed. Public awareness for water conservation, rationing and management of urban and industrial demand should be inculcated and underground water should be avoided for irrigation purposes as the same will severely reduce the availability of drinking water in the medium to long term.
Lastly, emphasis should be put on improving the quality of water. At present, the entire debate and dispute over sharing of Indus waters is centered around the quantity of water with little concern on the need to maintain the quality of water in the basin. Quality of water can be improved by treatment of drinking water at appropriate levels and ensuring sanitation in and around river bodies. This would further help in controlling water borne diseases.
There is universal acknowledgement of the IWT being a model treaty that has stood even through three wars in the area in question. However, one possible reason for this could be that the upper riparian i.e. India, for a long time, lacked the economic means to exploit the resources allocated to it by the treaty. It was only after the economic liberalization in the 90s that India started to develop works and projects on the Western rivers to exploit the share of water legally allocated to it by the IWT, and it was only since then that major differences on the interpretation of the treaty arose between India and Pakistan. This narrative is yet to play out fully in the future as India moves towards realizing its full share of the waters of the Western rivers over the coming years.
The role of the World Bank as a third party was pivotal in creating the negotiating space required by the two countries. The World Bank also leveraged its financial muscle to remove the deadlocks created during the negotiations. The process of the two adversaries reaching an agreement over the sharing of the waters is also an act of water rationality and reinforces the belief that co-riparians must cooperate to achieve water security as conflicts and wars over water have no scope of improving the water availability and quality.
The IWT is also a unique treaty as it focused on equitable division rather than the sharing of the Indus Rivers. This very feature of the treaty is also a technical restriction in ensuring optimum utilization of the river basin. With a growing requirement of water on both sides and the dwindling supply in the rivers, the IWT, like some other treaties, has come under stress and is likely to remain so in future also. The treaty may be sub-optimal on the utilization and development of the Indus Basin, but it is the best the two countries could agree upon after long lasting negotiations spread over 12 years. India and Pakistan need to ensure that the water sharing issues are discussed and resolved at appropriate levels rather than being made a political and leveraging issue. The level of cooperation on water sharing issues between India and Pakistan is far below the ideal, but he same is not a restriction imposed by the provisions of the IWT, but by the complex political environment of rivalry and mistrust which has mired the Indo-Pak relations ever since Partition.
The IWT has stood the test of extreme provocations and three all out wars in the last 50 years, coupled with a long standing insurgency abetted by Pakistan. This, in itself, is sufficient to call it a successful treaty beyond all doubt.
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