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Filling the Missing Gaps in the Indus Water Treaty (ISSI)

The Islamic Republic of Pakistan and the Republic of India share a complex historical relationship. Apart from a common border, centuries of history and culture, languages and ethnicities, and traditions, Pakistan and India share the waters of the Indus River System.

The partition of the Indian subcontinent in 1947 resulted in the headwords of the extensive network of canals – built during the British Raj – being placed in India. This led to India becoming the upper riparian and Pakistan the lower riparian in the Indus basin. The boundaries drawn were in disregard of hydrology since 80 percent of the areas irrigated by the canals were in Pakistan.

The waters of the Indus River basin therefore were a major source of contention between India and Pakistan right from independence. This is evident from the number of water disputes that broke out between the two states as early as April 1948 and even led at one point to the unilateral termination of water supplies by East Punjab to the canals crossing into Pakistan. It thus appeared that water would serve as the most likely catalyst for future wars between the two states, given their competitive use of a shared natural resource and enmities rising from a wider conflict.

It is therefore ironic that four wars later, water is the one area where the two countries have historically afforded each other the most accommodation in bilateral relations.  The basis for this relatively stable cooperation is solely attributable to the negotiations that led to the Indus Water Treaty of 1960 (“IWT” or “Treaty”) which has been hailed as a successful instance of conflict resolution between two countries otherwise locked in conflict.

The Indus Waters Treaty (IWT) was signed between the two parties on 19 September 1960. It is in essence, a technical treaty which attempts to provide a holistic framework for engineering solutions and mutual water management between India and Pakistan. However, unlike most international agreements of this nature, the IWT is not based on the equitable distribution of the waters of the Indus. Instead, it is based on the division of the Indus and its five major tributaries between India and Pakistan. This is the IWT’s most unique aspect.

Under the framework of the treaty, the three western rivers of the Indus Basin are allotted to Pakistan. These include the Jhelum, Chenab and the Indus.  All the waters of the eastern rivers – the Ravi, Sutlej and Beas – are available to India.

The IWT has endured over five decades of hostilities between the South Asian rivals including major wars. During this time, neither Pakistan nor India has ever targeted each other’s canals and hydroelectric facilities nor sought to terminate the Treaty. This is demonstrative of the fact that both States recognize the need for cooperation in order to safeguard their long term access to the waters of the Indus Basin.

Recent years however have seen water once again become a divisive issue between India and Pakistan. For a variety of reasons discussed further below, the IWT has come under strain, raising doubts about its efficacy in safeguarding the national interest across both sides of the border. These fears, most of which are legitimate, contain the potential to escalate into hysteria by being misconstrued and misrepresented by hawkish elements on both sides. There is therefore a need for both countries to engage in constructive engagement in order to understand each other’s legitimate concerns and fears and resolve them through bilateral dialogue.

This paper attempts to highlight Pakistan’s primary concerns vis-à-vis the IWT. The first section discusses the water security threat felt by Pakistan by Indian hydropower development on the western rivers. It will examine, from a legal perspective, the capacity of the IWT to cater to such concerns. The second section of this paper relates to India’s usage of the eastern rivers and highlights Pakistan’s concerns over the adverse consequences of this usage to the environment and ecosystems of Pakistani river communities. This section will take into consideration customary international law and examine similar precedents in water jurisprudence.

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