Violation of Indus Waters Treaty

Why can’t both Pakistan and India work it out?

The World Bank backed Indus Waters Treaty between Pakistan and India has survived three wars between the two countries, but the latter has not shown any inclination to strictly abide by its obligations under the Treaty. Pakistan raised objections to the construction of Wuller Barrage, Baghliar Dam and Kishanganga Hydro Electric Power Project maintaining that these projects vitiated the clauses of the Treaty. The Permanent Indus Commission, created under the treaty to monitor the implementation of the provisions of the Treaty and to deal with complaints and disputes pertaining to the implementation of the agreement, failed to resolve these issues and the matter had to be referred either to a ‘Neutral Expert’ or Permanent Court of Arbitration at Hague (PAC). The verdicts in case of Wuller and Baghliar went against the position taken by Pakistan. However the decision on Kishanganga, while recognising Indian right to build the dam, did address Pakistan’s concerns about India maintaining level of reservoirs below the Dead Storage Level and also recognised the concept of environmental flows in rivers to ensure that the power generating projects are operated in an environmentally sustainable manner. The final Award announced on Dec 20, 2013, specified that 9m³/s of natural flow of water must be maintained in Kishanganga River at all times to maintain environment downstream.

Pakistan being an agricultural country is totally dependent on waters of the Indus Basin Rivers. Agriculture is the backbone of its economy with a share of 21 per cent in GDP. Nearly 45 per cent of the labour force is employed in the agriculture sector and it accounts for 80 per cent of the raw material for agro-based industries in Pakistan. Therefore the Indus River System undoubtedly constitutes lifeline of the country. The PAC verdict on Kishanganga is viewed by experts as a win-win situation for both India and Pakistan which could usher in a new dawn for water management under the Indus Waters Treaty.

The Kishanganga project envisages diversion of water from Kishanganga River to a Power Plant in the River Jhelum Basin which Pakistan felt would increase the catchment area in contravention of the Treaty and also give India control over the storage and release of water. The dam is expected to be completed in 2016. But as it turns out, the Indians are still persisting with more than specified depth of the spillways of the dam in complete disregard to the Treaty and the decision of the PAC. India is also going ahead with the construction of 850 MW Ratle Hydropower Project in Jammu and Kashmir. Pakistan also has serious concerns about it. According to reliable sources, Pakistani authorities have decided to go for international arbitration and accordingly a case has been prepared for the purpose. However, it has not yet been decided whether to present it before the Neutral Experts to be selected through mutual consent or take it to the PAC. The protracted talks between the two sides on these projects have failed to produce any results.

Pakistan also has serious reservations on the designs of other projects including 1,000 MW Pakal Dul, 120 MW Miyar and 48 MW Lower Kalnai which India is building on River Chenab. The negotiations on these ventures have also reached nowhere and India remains adamant as ever to construct these facilities as per their original design. There is a permeating feeling among Pakistan authorities that looking through the past record there seems no possibility of India showing any flexibility in this regard and Pakistan ultimately might also have to seek international arbitration on these projects as well. It is believed that the construction of Kishanganga Dam in contravention of the Treaty and the decision of the PAC, apart from adverse impact on irrigation and energy producing schemes, would also profoundly affect biodiversity and ecosystems in the Neelum Valley. The volume of water in the part of the river on the Indian side is ten times than the water in the river on our side. The diversion of this water to Jhelum basin would adversely affect environment of the valley as well. These concerns have repeatedly been agitated with the Indian negotiators without any positive response.

It is pertinent to point out that under the Indus Waters Treaty 1960, the waters of the Eastern rivers Sutlej, Beas, and Ravi had been allocated to India and the Western rivers Indus, Jhelum and Chenab to Pakistan except for certain uses allowed to India including power generation without altering the water flows. Some sources believe that India is contemplating to launch more hydropower projects with a cumulative power generating capacity of 32,000 MW on the rivers allocated to Pakistan and consequently attain the capability of regulating the water flows to Pakistan, especially reducing water flow in the river Chenab which irrigates most of the land in Punjab.

According to FAO more than 3,600 treaties related to international water resources have been drawn up among nations sharing waters of rivers and lakes since 805 AD. The focus of most of these treaties was on navigational considerations. However, since 20^th century the emphasis has shifted away from navigation towards the use, development, protection and conservation of water resources and the mechanism for sharing these common resources. There are 263 trans-boundary lake and river basins in the world covering nearly half of the land mass of the earth. While some basins are shared by two countries, others are shared by five to eighteen nations (River Danube). The riparian nations either through bilateral arrangements or through multilateral agreements have been sharing these water resources in a manner that safeguards the interests of all the parties to the treaties. The UN Resolution on Law of Trans-boundary Aquifers and UN Convention on Law of Non-Navigational Use of the International Water Courses also stipulates some key guiding principles in this respect which include equitable and reasonable utilisation of international water courses, the application of appropriate measures to prevent harm to other states sharing an international water course and the principle of prior notification of planned measures.

As is evident from the foregoing facts Indian stance and disposition towards the Indus Waters Treaty and the PAC verdict on Kisghanganga also constitute a willful breach of the international conventions and guidelines on the subject. India and Pakistan need a peaceful atmosphere for changing the fate of the teeming millions on both sides of the border and therefore should focus more on removing the irritants instead of scuttling the chances of bonhomie between the two by adopting an unreasonable position on the sharing of water resources between the two countries.