Indus Waters Treaty Revisited

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Amb Satish Chandra, Dean, Centre for National Security and Strategic Studies, VIF

Recognising the need to impose costs on Pakistan for its relentless export of terrorism to India the Modi government is having a relook at the Indus Waters Treaty. This move, the first of its kind by any Indian government, is also eminently desirable as the Treaty, concluded in 1960, is heavily weighted in Pakistan's favour, has been systematically used by the latter to stymie Indian projects, and, has not contributed to improved India-Pakistan ties as originally expected.

That the Treaty is unfairly weighted in Pakistan's favour is obvious as it allocates 80% of the flows of the Indus Waters to Pakistan and only 20% to India which has 40% of the catchment area. Moreover, India's use of the three western rivers, notably the Indus, Chenab, and Jhelum, is severely circumscribed by many onerous limitations including the conditionality that power generation thereon shall only be through run of river plants which are far less cost effective than conventional hydro power plants. Finally, India as per the Treaty had to pay Pakistan 62 million pounds sterling for construction of replacement canal works in West Punjab. So biased a Treaty in Pakistan's favour was concluded by Nehru in the hope that it would put to rest India-Pakistan water related differences and also promote better bilateral ties. The Treaty has clearly failed miserably on both counts and, therefore, merits a revisit.

While it is common knowledge that the Treaty has not had any positive impact on India-Pakistan relations, it is not so well known that Pakistan has deliberately used its provisions in order to stall even the limited utilisation of the western rivers permitted to India under it. It has thus been raising all manner of objections to Indian projects on these rivers, and since 2005 has taken them to a neutral expert and a court of arbitration which has further accentuated project delays and added to costs.

For instance, the first stage of the Salal hydroelectric project, on the Chenab, could only be commissioned in 1987 though designs for it had been submitted in 1968. Pakistan raised objections in 1974 and these could only be overcome in 1978 after Indian concessions on the project's design parameters which have resulted in severely depleting its power generation capabilities and causing heavy siltation. Similarly, the Tulbal navigation project on the Jhelum mooted by India in 1984 has to date not come to fruition due to Pakistan's objections and remains a matter of discussion between the two countries. Both the Baglihar and Kishenganga projects have also seen years of delay due to Pakistan's objections. The former was, at Pakistan's insistence, taken to a neutral expert in 2005 and the latter to a court of arbitration in 2010. In both cases the projects were cleared albeit at considerable cost and much loss of time.

Indeed, on the Kishenganga project Pakistan is insisting on its being referred again to a court of arbitration on technical design issues which are more appropriately addressed by a neutral expert as stipulated in the Treaty. India had, accordingly, on October 4, 2016 requested the World Bank to appoint a neutral expert for this purpose. The latter, initiated both the processes--- appointment of a neutral expert and constituting a court of arbitration--- simultaneously on November 10, 2016. Following our demarches in the matter the World Bank on December 12, 2016 announced a pause in both the processes initiated by it and called on India and Pakistan to explore "alternative ways to resolve their disagreements."

The World Bank's lack of objectivity in this matter is another cause of concern. Firstly, its decision to refer the Kishenganga project to a court of arbitration as requested by Pakistan was improper as design issues are ab initio more appropriately referred to a neutral expert. Indeed, as per clause 6 of Article IX of the Treaty while any difference is being addressed by a neutral expert a court of arbitration cannot be set up. Secondly, the setting in motion two parallel processes, as recognised by the World Bank itself in its press release of November 10, 2016, could make the Treaty "unworkable over time." In view of the foregoing it makes sense for India to revisit the Indus Waters Treaty. This is all the more so as in its quest for taking matters to third parties Pakistan has rendered the Permanent Indus Commission ineffective. Finally, Pakistan has not only been unappreciative of India's scrupulous observance of so unequal a Treaty and its many gestures of goodwill, like the gratis provision of flood data over and above Treaty requirements, but also irrationally blames it for water shortages despite the fact that its own Senate Standing Committee on Water and Power had no hesitation in July 2015 in completely absolving India of any responsibility in this regard.

For starters, the Modi government seems intent on maximising the usage in India of the Indus Waters as permitted within the framework of the Treaty. This will entail full utilisation of the eastern rivers notably the Sutlej, Beas and Ravi and the utilisation of all the storages and irrigation possibilities permitted to us on the three western rivers. Currently, 1.3 MAF of the waters of the eastern rivers are flowing to Pakistan which could be utilised by India. Similarly, out of its storage entitlement of 3.6 MAF on the western rivers India has built virtually nothing and is currently irrigating only 0.792 million acres of the permitted 1.34 million acres. These shortfalls must be rapidly made up so that we can maximise our utilisation of the Indus waters at the earliest as permitted under the Treaty.

But ideally, India should not stop at merely exercising its rights as permitted under the Treaty but should proceed towards abandoning it as it has not redounded in any way to India's benefit. There is, above all, no logic for India to continue to honour so unequal a Treaty at a time when Pakistan blatantly violates the Shimla Agreement and its solemn commitment not to engage in the export of terror to the former.

Regrettably, the Treaty has no time limit and modification or termination is only possible through mutual agreement. Since Pakistan will not agree to anything proposed by India this route for abandoning the Treaty is not open.

International law does, however, envisage the possibility of a state unilaterally withdrawing from a treaty in case of a fundamental change of circumstances. Pakistan's use of terrorism against us in default mode leading to a virtual state of war of between the two countries is arguably such a fundamental change of circumstances which could justify India's walking out of the Indus Waters Treaty.

So drastic a move could, of course, have many negative international repercussions which at this stage may be prudent to avoid. Accordingly, as an alternative, we should explore the possibility of serving a notice on Pakistan stating that we propose to suspend our observance of the Treaty because of its use of terror against us and that this suspension will remain in place until such time as it persists in the export of terror to India.

(The author is a former Deputy National Security Advisor)