By: James Borden
Background of the India-Pakistan Conflict and the Indus Waters Treaty of 1960
India and Pakistan gained their independence from the British Indian empire, and each other, when they were partitioned in 1947. This partition allotted India control over the Jammu and Kashmir region and has been a central part of the Indo-Pakistani conflict ever since, resulting in three wars and otherwise endless unrest.
The partition was especially significant as it established that the six major rivers making up the Indus river system would flow through Indian-controlled Kashmir before reaching Southern Pakistan. Immediately after the partition in 1948, the potential issue with this arrangement quickly came to fruition when India cut off water from flowing into Pakistani West Punjab. The affected region of Pakistan mostly consists of dry plains, which are irrigated extensively with the use of water from the Indus river system, allowing the largely agrarian economy to function. Without access to this water, the region faced a major crisis. However, a month later the countries signed the “Inter-Dominion Agreement” of 1948, which was a temporary agreement whereby Pakistan would pay the Indian government for restoring water flow into the region.
The two countries were unable to reach any kind of adequate long-term agreements over these waters prior to 1960. Finally, in that year, with extensive mediation from the World Bank, the two countries signed into effect the Indus Waters Treaty (“Treaty”). This treaty, which remains in effect today, governs how the neighbors use and allocate these waters. Specifically, it allocates the unrestricted use of the three eastern rivers—the Ravi, Sutlej, and Bias—to India, while the three western rivers—the Indus, Chenab, and Jhelum—are allocated to Pakistan. The Treaty also maintained the rights of each to use the other’s rivers for certain non-consumptive uses, as well as domestic use, agricultural use, and for the generation of hydroelectric power. Furthermore, it expressly prohibited India from storing water derived from any of the Pakistani-controlled rivers.
The Treaty also provides for an extensive dispute resolution process. Any conflicts between the parties are first to be brought before the “Permanent Indus Commission,” a body created by the Treaty consisting of a commissioner from both countries. Every commissioner “should ordinarily be a high-ranking engineer competent in the field of hydrology and water-use.” If the commission fails to reach a resolution, and the parties fail to reach one by mediation or negotiation, then the difference will be decided by either a neutral expert or a court of arbitration. The neutral expert must be a highly qualified engineer, either agreed upon by the two countries or appointed by a designated party (likely the World Bank). The Court of Arbitration must consist of seven members, two of whom are individually appointed by each party and the remaining five would, again, be appointed either by a consensus of the parties, or by a designated party (consisting of an engineer, an international law expert, and one qualified to be Chairman of the Court of Arbitration).
The Conflict Today
The Treaty has been labeled one of the greatest accomplishments of water diplomacy and has endured for many years, despite three wars and ongoing conflict between the signatories. Yet today it seems as though its sustained future is in doubt. Water scarcity is rapidly becoming a bigger issue in South Asia due to over-population, groundwater depletion, and various issues arising from climate change. This greater scarcity has elevated the importance of the Treaty to an all-time high, but has also placed it under added stress.
While both counties have a greater need for water, it also increasingly looks as though the water conflict is being used as a proxy for the general, political conflict between them. In September 2016, a group of militants attacked an Indian military base in the Kashmir region, killing 18 Indian soldiers. Immediately after the attack, Indian officials were blaming Pakistan for backing the militants. A short time later, Prime Minister Modi of India announced that he was forming a task force to ensure that no “water belonging to India” would cross into Pakistan. Additionally, a Pakistan Foreign Affairs official announced during this period that a revocation of the Treaty by India could be interpreted by Pakistan as “an act of war;” a chilling statement coming from an official of a country in possession of nuclear weapons.
India has also made it a priority to exploit, to the maximum extent possible under the Treaty, Pakistan-controlled western Rivers. The main way India has done this is through construction of hydroelectric power-generating plants. Using a more traditional, dam-design would result in a violation of the Treaty’s prohibition on “storage.” Therefore, these plants utilize a “run-of-the-river” design whereby some, but not all, water is diverted from the river, funneled through a turbine to generate electricity, and then returned to the river. Though this method still requires a small amount of water to be stored for use in “flushing,” which is a procedure to clear out sediment that gathers in the reservoir during this process.
“Drawdown flushing” is an aspect of modern design, and so it was not contemplated by the drafters of the Treaty. Pakistan vehemently disputed India’s right to store water for flushing under the Treaty. In 2010, they triggered a Court of Arbitration review, the first ever in the history of the Treaty, to determine whether India could do this. In 2013, the Arbitrators returned a ruling that India could divert and store water, so long as a “minimum flow” of water was maintained in the river.
Most recently, Pakistan has raised concerns over two more hydroelectric projects: the Ratle on the Chenab River and the Kishanganga on a tributary to the Jhelum River. Delegations from the two nations held talks in August and September of 2017 but failed to come to any agreements. Pakistan has since called for the World Bank to convene a Court of Arbitration, which they have so far failed to do.
Why does Pakistan object?
Pakistan has hotly objected to construction of these hydro-electric plants for a number of reasons. Generally, Pakistan sees India being granted the ability to store water and generate hydro-electric power in this manner as an erosion of their powers under the treaty, and a further threat to their water resources. Any ceding of control to India of the rivers allocated to Pakistan represents a potential threat to Pakistan’s economic livelihood as well as the health and safety of its citizens.
As discussed previously, these two nations have been entangled in seemingly endless conflict for the duration of their independent existence. In such a climate, concerns about national security and war are always a part of the conversation. With this extra control, Pakistan could be concerned that, in a time of war, India could immediately have the ability to decrease or cut off flow from the all six rivers into the country; or alternatively, increase flow in order to induce flooding. On one hand, the lack of sufficient fresh water could decimate Pakistan’s water-intensive agricultural operations and cause calamitous drinking water shortages. On the other hand, flooding can cause catastrophic damage and loss of life in its own right.
These concerns are especially palpable when considering how susceptible to both devastating floods and droughts Pakistan is. The country’s water storage capacity is currently around 30 days, meaning that the amount of water stored in the country would sustain the country’s practical uses for about a month (by contrast, India boasts around 200 days of storage capacity). The storage facilities making up this capacity are typically in the form of dammed reservoirs, of which Pakistan has very few. These reservoirs are of course important for storing water for use during times of drought, but also for absorbing water during times of excess availability – i.e. monsoon season, etc. – when floods are prevalent.
With these thoughts in mind, it is no wonder why a revocation of the Treaty by India could be so damaging for Pakistan that it could be interpreted as an act of war against it. Such a revocation may not seem likely given the agreement has already endured nearly 60 years of conflict, however, the prospect has become more and more realistic over the last few years.
India’s motivations and implications of a Treaty revocation
Not surprisingly, India’s fresh water situation is not very bright either. For a country that boasts approximately 17% (and counting) of the world’s population, it only possesses around 4% of the world fresh water supply. Growth in population and the agricultural sector (which utilizes 90% of freshwater resources), as well as problems of uneven distribution, pollution, and climate change have compounded this issue. Consequently, water issues and the Indus Water Treaty itself have reached the forefront of Indian politics in recent years, with the Treaty coming to be viewed in a negative light for many in the country. India’s PM Modi substantiates this view with his increasingly unfavorable talk of the Treaty in the lead up to his reelection bid next year.
If India did opt to cancel its participation in the Treaty, it would have disastrous consequences for Pakistan, but likely also for India itself. As indicated by the Pakistan official’s “act of war” statement, the Treaty is one of the only lynchpins keeping the two nations from potentially engaging in war. Furthermore, a revocation could ultimately result in loss of water flowing into the country. China is the primary source of India’s rivers, including the Indus river system, and is also a close ally of Pakistan. If India were to break the Treaty and cut off water to Pakistan, China, who maintains no water-sharing agreement with India, could similarly cut off flow to India. Additionally, not honoring this Treaty could hurt the prospect of India engaging in similar water agreements, of which it purportedly continues to pursue with China, Nepal, and Bangladesh. Such a move would indicate to these countries that India might not honor their commitment in a like Treaty. Finally, such an action would certainly draw ire from the World Bank, who is a signatory to the Treaty, and who would most assuredly back Pakistan in any subsequent action.
In the tumultuous, war-filled Pakistan-India relationship, the Indus Water Treaty has held steady for the past 60 years. Whether it remains that way will depend primarily on the two countries’ ability to mutually cooperate with each other and reach compromises utilizing the Treaty’s dispute-resolution framework before disputes develop into anything more serious. It will be a tough road ahead as both countries continue to develop larger populations and as consequences of climate change begin to be felt.
 Waseem Ahmad Qureshi, Water as a Human Right: A Case Study of the Pakistan-India Water Conflict, 5 Penn. St. J.L. & Int’l Aff. 374, 377 (2017).
 Food and Agriculture Organization of the United Nations, AQUASTAT, Pakistan, http://www.fao.org/nr/water/aquastat/countries_regions/PAK/ (last visited Feb. 5, 2017).
 Frank Caso, Freshwater Supply 216-17 (2010).
 Qureshi, supra note 1.
 See Art. II & III, Indus Waters Treaty, 1960.
 Id. at Art. 4 §2.
 Id. at Art. 15.
 Id. at Art. 18
 ‘Water belonging to India cannot go to Pakistan,’ says Modi, Dawn.com (Nov. 25, 2016), https://www.dawn.com/news/1298575.
 Muktar Ahmad, Rich Phillips, & Joshua Berlinger, Soldiers killed in army base attack in Indian-administered Kashmir, CNN (Sept. 19, 2016), https://www.cnn.com/2016/09/18/asia/india-kashmir-attack/index.html.
 Dawn.com, supra note 13.
 Vishwa Mohani, Govt moves to tap share of Indus to strike back at Pakistan, The Times of India (Dec. 30, 2017), https://timesofindia.indiatimes.com/india/india-sets-the-ball-rolling-on-its-rights-under-indus-waters-treaty-prepares-dpr-for-ujh-project-in-jk/articleshow/62298262.cms.
 Treaty, supra note 6.
 Permanent Court of Arbitration (PCA), Press Release, Indus Water Kishenganga Arbitration (Dec. 21, 2013).
 G. Mathias Kondolf et al., Sustainable sediment management in reservoirs and regulated rivers: Experiences from five continents, 2 Earth’s Future 256, 260 (2014).
 PCA, supra note 21.
 PTI, Indus Waters Treaty: Pakistan asks World Bank to set up arbitration court to settle water issue, The New Indian Express (Sept. 17, 2017), http://www.newindianexpress.com/world/2017/sep/17/indus-waters-treaty-pakistan-asks-world-bank-to-set-up-arbitration-court-to-settle-water-issue-1658586–1.html.
 Waseem Ishaque & Saima Shaikh, Water and Energy Security for Pakistan: A Retrospective Analysis, 51 J. of Grassroots 90, 90-91 (2017).
 Saleem Shaikh & Sughra Tunio, Pakistan has only 30 days of water reserves – researchers, Thomas Reuters Foundation News (Apr. 8, 2014), http://news.trust.org//item/20140408163112-l1ezy.
 Ishaque, supra note 28.
 Vibha Dhawan, Water and Agriculture in India, OAV, 2017, at 3, available at https://www.oav.de/fileadmin/user_upload/5_Publikationen/5_Studien/170118_Study_Water_Agriculture_India.pdf.
 Michael Kugelman, Why the India-Pakistan War Over Water Is So Dangerous, Foreign Policy (Sept. 30, 2017), http://foreignpolicy.com/2016/09/30/why-the-india-pakistan-war-over-water-is-so-dangerous-indus-waters-treaty/.
 Ali Zain, Stop daydreaming Indians: Five reasons why India cannot scrap Indus Water Treaty, Daily Pakistan Global (Sept. 27, 2016), https://en.dailypakistan.com.pk/top-lists/enough-of-the-daydreaming-indians-five-reasons-why-india-cannot-scrap-indus-water-treaty/.