Bridging the wedge

The Indus is the westernmost river system in the subcontinent. Jhelum, Chenab, Ravi, Beas and Sutlej are its main tributaries. It is one of the most important drainage systems in Pakistan and India. It has a length of 2,880 km, of which 709 km lies in India. The catchment area of the Indus is about 1,165,000 sq km, out of which about 3,21,248 sq km is in India. The Indus, with its five main tributary rivers, comprises one of the greatest river systems in the world. Its annual flow is twice that of the Nile and three times that of the Tigris and Euphrates combined; which amounts to almost 170 million acre-feet, or enough water to submerge, to a depth of one foot, the whole area of the state of Texas, or the whole area of France.

India and Pakistan have been arguing over hydroelectric projects on the shared Indus River and its tributaries for decades. Pakistan complains that India's planned hydropower dams will cut flows on the river, which feeds 80 per cent of its irrigated agricultural land. India has accused Pakistan of dragging out the complaints process since 2015 and says the construction of its Kishanganga and Ratle Hydro Electric projects is allowed under the Indus Water Treaty (1960). The Indus Waters Treaty (IWT) between India and Pakistan, arranged and negotiated by the World Bank, to use the water available in the Indus River and its tributaries (Indus River System), allocates the western rivers (Indus, Jhelum, Chenab) to Pakistan and the eastern rivers (Ravi, Beas, Sutlej) to India. At the same time, the treaty allows each country certain uses on the rivers allocated to the other.

On January 25, 2023, India’s Indus Water Commissioner issued a notice for the modification of the Indus Waters Treaty of 1960 to his Pakistani counterpart. This notice was issued with the intent to provide an opportunity for Pakistan to enter into government-to-government negotiations to rectify the ongoing material breach of the treaty. To solve the dispute, India has suggested the appointment of a neutral expert while Pakistan sought resolution through proceedings in the Court of Arbitration in The Hague, which began on January 27.

On January 27 and 28, 2023, the Court of Arbitration — constituted under the Indus Waters Treaty — held the first meeting in the proceedings commenced by the Islamic Republic of Pakistan against the Republic of India. India did not appear and declined to participate in the first meeting of the Court of Arbitration. In prior correspondence, India expressed the view that the Court of Arbitration is not competent to consider the questions put to it, which should instead be decided through an alternative process under the Indus Water Treaty, involving a neutral expert (a highly qualified engineer). The Court of Arbitration acknowledged India’s objection and concluded that it must be addressed before the court takes further action.

Then the World Bank decided to appoint a Court of Arbitration and a neutral expert under two separate processes to resolve differences between India and Pakistan over the Kishanganga and Ratle hydroelectric projects in Jammu & Kashmir. Strongly objecting to the World Bank’s decision, the external affairs ministry spokesperson Arindam Bagchi alleged, “I do not think they (World Bank) are in a position to interpret the treaty for us. It is a treaty between our two countries and our assessment of the treaty is that there is a provision of graded approach”. Next day, a World Bank statement said, “the Bank considers that the lack of success in finding an acceptable solution, despite the best of efforts by all Parties involved over the past years, is a risk to the Treaty itself. It has therefore decided to resume the two separate processes requested by India and Pakistan”. It may be mentioned that though the job of the World Bank is limited and procedural at present, as a signatory to the IWT, it still enjoys a certain role. However, its function in relation to “differences” and “disputes” is restricted to the designation of individuals to fulfil certain roles in the context of neutral expert or Court of Arbitration proceedings when requested by either or both of the parties.

Experts believe that as the government’s spokesperson is now questioning the role of the World Bank, the country risks severe embarrassment. India's hardline diplomacy on the Indus Waters Treaty reflects a sign of desperation, reports The Wire.

Indus Waters Treaty

In one of its publications, the World Bank (1960) narrated the background of the IWT and its significance to the economies of both India and Pakistan. The Indus River system supports millions of people in Pakistan and India — approximately one-tenth of the combined population of the two countries. Until the subcontinent was partitioned in 1947 between India and Pakistan, there had been conflicting water claims in dispute between the Sind and Punjab provinces of undivided India. Partition drew the border between India and Pakistan right across the Indus system. Pakistan became the downstream riparian, and the headwork of two of the main irrigation canals in Pakistan were left on the Indian side of the border. The sharing of the use of the waters thereupon became an international issue and has been a principal cause of strained relations between India and Pakistan.

In 1951, an article written by David Lilienthal (former Chairman of the Tennessee Valley Authority), appeared in a popular American magazine. This article suggested that a solution to the dispute might be found if Indian and Pakistani technicians would together work out a comprehensive engineering plan for the development of the waters of the system, on a joint basis, and if the World Bank would undertake assistance in financing the necessary works. Inspired by this idea, Eugene R Black, the President of the World Bank, proposed to the governments of the two countries that, with the good offices of the Bank, they might be able to resolve their differences on the use of the Indus waters. His suggestion was accepted in March 1952.

A treaty governing the use of the waters of the Indus system of rivers, titled ‘The Indus Water Treaty 1960’, was signed on September 19 in Karachi, by Jawaharlal Nehru (Prime Minister of India) on behalf of India and by Field Marshal Mohammad Ayub Khan (President of Pakistan) on behalf of Pakistan. The treaty was signed on behalf of the World Bank by WAB Iliff (Vice President of the Bank). Simultaneously, with the signing of the Indus Waters Treaty, an international financial agreement was also executed in Karachi by representatives of the governments of Australia, Canada, Germany, New Zealand, Pakistan, the United Kingdom and the United States, and of the World Bank. This agreement created an Indus Basin Development Fund of almost USD 900 million to finance the construction of irrigation and other works in Pakistan, consequential to the treaty settlement. India had a contribution of approximately USD 174 million payable under the water treaty. The signing of the treaty marked the end of a critical and long-standing dispute between India and Pakistan, and opened the way to the peaceful use and development of water resources, on which depends the livelihood of some 50 million people in the two countries. Needless to mention, IWT played an important role in ushering in the ‘green revolution’ and ‘white revolution’ in Pakistan and India.

The treaty has set a mechanism for cooperation and information exchange between the two countries regarding their use of the rivers, known as the Permanent Indus Commission, which has a commissioner from each country. The treaty also sets forth distinct procedures to handle issues which may arise. For example, “questions” are to be 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.”

IWT is appreciated as one of the most successful international treaties on trans-border water sharing. It has survived frequent tensions, including conflicts and three wars (1965, 1971 and 1999) between India and Pakistan, and has provided a framework for irrigation and hydropower development for more than half a century.

Disagreements

The dispute began when the Government of India decided to build the Kishanganga dam and a power station (3x110 MW) on river Kishanganga — a tributary of river Jhelum where construction began in 2007. Pakistan objected to the Kishanganga dam because it envisaged a shifting of water from one tributary of the Jhelum to another. While the overall amount of water going to Pakistan remained about the same, the lowered amount in the higher tributary (offset by being diverted to a lower one) meant that the Neelum-Jhelum Project that Pakistan wanted to build on its side of Kashmir would receive a lower flow, possibly lowering its efficiency. Nevertheless, IWT does not prohibit such diversions on the water of the western rivers allocated for Pakistan. The Court of Arbitration in its verdict, delivered in 2013, clearly mentioned that the IWT allowed this, and because India had started work on its project well before Pakistan, Pakistan could not argue “prior usage”. The verdict also asked India to make some design changes, which Pakistan has alleged that India has not done. Then in 2015, Pakistan asked for a neutral expert –– to be appointed to deal with the issue. On August 22, 2016, it upped the ante by asking the World Bank to appoint a Court of Arbitration – which deals with “disputes”, withdrawing its request for a neutral expert. On January 25, 2023, India’s Indus Water Commissioner issued a notice for the modification of the Indus Waters Treaty of 1960 to his Pakistani counterpart.

China factor

The trans-border rivers flowing from China to India fall into two main groups: i) The river Indus and the river Sutlej of the Indus river system on the western side; and ii) the Brahmaputra river system on the Eastern side, which consists of river Siang (main stream of river Brahmaputra) and its tributaries, namely Subansiri and Lohit.

Ashok Swain, a professor of peace and conflict research at Uppsala University, argues that the Indus Waters Treaty of 1960 which excluded Afghanistan and China from its ambit remains a sub-optimal treaty and needs to be expanded to the whole basin. The Kabul River, a tributary of the Indus, is shared between Afghanistan and Pakistan and is not covered by any transboundary agreement but is crucial to the livelihoods of millions of people in both basins. Moreover, India is reportedly getting worried about China’s dam projects upstream of the Indus. It is feared that China might soon go for building dams on the Sutlej upstream. Thus, to achieve basin-based cooperation for promoting food security, enhancing livelihoods and developing infrastructure in the Indus river system, it will be essential to first build confidence between India, Pakistan, China and Afghanistan, argues Professor Swain, reported The Third Pole.

It is reported that China has also initiated a controversial hydropower project on the Brahmaputra River in Tibet close to the Arunachal Pradesh border over which India has raised concerns. The 14th five-year (2021-2025) plan of China included building the dam on the lower reaches of the Brahmaputra river over which India and Bangladesh, the riparian states, have raised concerns. As per a report by The Wire, China has downplayed such anxieties saying it would keep their interests in mind. Nevertheless, India plans to construct the country’s second-largest dam at Yingkiong in Arunachal Pradesh to counter China’s ambitious water diversion scheme of the river that feeds downstream into the Brahmaputra, reported Mint.

Other water treaties

Four major rivers of India — Indus, Ganga, Brahmaputra and Sharda/Kali originate in the Himalayan River system. In addition to Pakistan and China, India also shares many common rivers with Nepal and Bangladesh. India and Bangladesh have 54 transboundary rivers, including the mighty Ganga and the Brahmaputra, flowing between them, all of which are part of the drainage system of the Ganga-Brahmaputra-Meghna (GBM) basin, reported Millennium Post. The Sharda River, also called Kali River and Mahakali River, originates at Kalapani in the Himalayas at an elevation of 3,600 m (11,800 ft) in the Pithoragarh district of Uttarakhand, India. It flows along Nepal's western border with India and has a basin area of 14,871 sq. km (5,742 sq. mi). It joins the Ghaghra River, a tributary of the Ganges.

Water is an important strategic resource. Improper handling can trigger serious conflict between neighbouring countries. Fortunately, the leaders of this water-rich region have made water cooperation treaties and arrangements to avoid any possible conflict. The Treaty on Integrated Development of Mahakali River was signed by the Prime Minister of Nepal and the Prime Minister of India in February 1996 and came into effect in June 1997.

An Indo-Bangladesh Joint Rivers Commission (JRC) has been functioning since 1972. It was established to maintain liaison to ensure the most effective joint effort in maximising the benefits of common river systems. The JRC is headed by the Water Resources Ministers of both countries. The 38th meeting of the JRC was held in New Delhi on August 25, 2022, wherein various matters pertaining to cooperation in the water resources sector with Bangladesh were discussed. A new chapter in Indo-Bangladesh relations opened up with the signing of a treaty by the Prime Ministers of India and Bangladesh on December 12, 1996, on the sharing of Ganga/Ganges waters. The treaty shall remain in force for 30 years, to be renewable by mutual consent. For monitoring the implementation of the Treaty, a Joint Committee has been set up.

A scheme titled ‘Comprehensive Scheme for Establishment of Hydro-meteorological and Flood Forecasting Network on rivers Common to India and Bhutan’ is in operation. Joint Experts’ Team (JET) consisting of senior officials from the Government of India and the Royal Government of Bhutan continuously reviews the progress and other requirements of a network of 32 hydro-meteorological sites in the catchments of rivers Puthimari, Pagladiya, Sunkosh, Manas, Raidak, Torsa, Aie and Jaldhaka common to India and Bhutan. So far, the JET has met 36 times alternately in India and Bhutan since its reconstitution in 1992.

Notwithstanding ongoing tensions on the Indo-China border, both countries have developed a formal mechanism for cooperation on water management. During the visit of the President of the People’s Republic of China to India on November 20-23, 2006, it was agreed to set up an Expert-Level Mechanism (ELM) to discuss interaction and cooperation on the provision of flood-season hydrological data, emergency management and other issues regarding trans-border rivers.

Accordingly, the two sides have set up the Joint Expert Level Mechanism through a joint declaration by both countries. The ELM meetings are held alternately in India and China every year. The 13th meeting of ELM was held on May 18, 2022, through video-conferencing.

Conclusion

As per a report by BBC, back in 1985, Boutros Boutros Ghali, former UN Secretary-General, said, "the next war in the Middle East will be fought over water, not politics." It is feared that the possibility of a war over water has shifted to South and Southeast Asia which are endowed with abundant water resources. The water wars rationale predicts that countries will wage war to safeguard their access to water resources, especially if there is water scarcity, competitive use and the countries are enemies due to a wider conflict. Following this argument, India and Pakistan should have fought a war over the Indus basin instead of negotiating the 1960 Indus Waters Treaty. In explaining this Indo-Pakistan cooperation over water, Alam (2002) argued that through cooperation the countries were

able to safeguard their long-term water supply. In other words, cooperation is water rationale. This rationale of water cooperation is the key to avoiding all future conflicts with neighbours over this vital resource. The forthcoming Shanghai Cooperation Organisation (SCO) Summit 2023 in Delhi, where India, China and Pakistan are members, will allow for strengthening water ties among these neighbouring countries.

Views expressed are personal