A treaty in troubled waters

India’s decision to pause the historic Indus Waters Treaty (IWT) of 1960, inked by Jawaharlal Nehru for India and Ayub Khan for Pakistan, has not come as a surprise. Provisions of the treaty have been debated intensely for some time. However, in the aftermath of the murderous terror attack in Pahalgam, questions were raised – can blood and water go together? India acted immediately. Let’s see what comes out of this coercive diplomacy.

The Indus basin has not been free from riparian rivalry. The conflict goes back to the pre-independence days when the Sindh province in undivided India flagged projects in Punjab proposed by the British administration for the development of the Satluj valley. The dispute was referred to the Indus Commission, headed by the legendary Sir Benegal Rau. This was after the failure of the Anderson Committee to resolve the concerns of delta farmers of Sind below the Sukkur barrage. However, the Indus Report of 1942, considered classic, couldn’t be implemented since
the partition in 1947 overtook its recommendations. Soon after the partition, disputes between India and Pakistan arose since some barrages
in Punjab became international overnight.

After partition, India and Pakistan embarked on ambitious power generation to industrialise and irrigation development to reclaim dry lands. Nehru was keen on the Bhakra Nangal Project to store the Satluj water for power and irrigation. Pakistan asserted the prevailing natural flow theory while India spoke of sovereign rights. The World Bank under Eugene Black which was funding both India and Pakistan mediated with the assistance of David Lilienthal of the Tennessee Valley Authority. The extremely complex techno-legal negotiations for more than a decade resulted in the treaty in 1960, based on the uniquely fashioned equitable utilisation doctrine by dividing the basin rivers on a geographical basis.

India obtained full rights over the eastern rivers, which on average generate about 35 million acre-feet (MAF) of water annually. Pakistan got near-full rights over the mighty western rivers, which on average generate about 135 MAF of water annually. India also got rights in western rivers for building hydropower projects and for irrigation to the extent of about 3.2 MAF of water.

Modifying the provisions

The deal was fair given India’s needs then, the geographical constraints, and the protracted negotiations. As an upper riparian, India badly wanted a deal, whereas downstream Pakistan was least bothered since it was getting water through the gravity flow. However, in the changed circumstances in 2025, the deal needs to be tweaked to enable India to divert about 5 to 10 MAF of water from western to eastern rivers to meet its deficits.

India’s decision to temporarily nullify the treaty – for non-cooperation by Pakistan when India called upon it last year to modify the treaty and for promoting terrorism in India – is arguably justified in customary international law. There is no court of law with compulsory jurisdiction in international law to decide whether India’s stand is right. This is diplomatic coercion. Will the lower riparian Pakistan bend?

The water will continue to flow into Pakistan by nature’s force of gravity, with or without a treaty. The hard reality is that India has no capacity dam or reservoir to act as a tap to cut off the flow on the western rivers of the Indus and its tributaries, Jhelum and Chenab. Of course, temporary freedom extracted from the shackles of the treaty may facilitate India to execute the Ratle hydropower project, apart from proposing a diversion of 5 to 10 MAF water from the western rivers to the eastern rivers to augment the deficit flows.

The IWT has no inbuilt provision for its termination. There is no provision prescribing a period of 30 or 40 years. However, there is no restriction on denunciation and withdrawal either. The universal practice is that no water-sharing treaty or a decision of judicial authority on water-sharing is treated as permanent. International law dictates a review or revision of the same on proof of fundamental changes in circumstances that formed the basis for the treaty. Article VII, read with Article XII (3) without appearing to confer any express right or impose absolute obligation on parties, provides for future cooperation for the optimum development of the river. Despite evidence of about 20 MAF of water going to the sea below the Sukkur barrage in Sindh, if Pakistan has shown reluctance to cooperate with India’s request for modification of the treaty, India is justified in keeping the treaty in abeyance as a coercive diplomatic measure. Will it succeed? It’s anyone’s guess.

(The writer is a senior advocate in the Supreme Court and an expert in
transboundary water disputes)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.