CONCERNING WATER DISPUTES WITH INDIA

OVERVIEW OF INDUS WATER TREATY

The creation of Pakistan in 1947 was accompanied by problems in the irrigation

sector. River Indus and its five tributary rivers all originate in Indian held territories
and flow down into Pakistan. India as upper riparian could interfere with these flows.

The boundary line between the two countries was drawn without any regard to the
hydrology and irrigation works. The canal headworks at Madhopur on Ravi and
Ferozepur headworks on Sutlej River were thus left in India while their canal
command areas were in Pakistan. The irrigated area of 1.60 million acres was
threatened in Pakistan. The first Indo-Pakistan water dispute broke out on
1 April 1948, when India cut off water supplies to the canals crossing into Pakistan.
Director negotiations between the Parties failed to resolve the dispute Negotiations
under the World Bank commenced in May 1952. It was agreed that specific
engineering measures be worked out by which the supplies effectively available to
each country would substantially be increased. The Bank Engineers worked out their
initial proposals on averages ignoring the special seasonal needs for sowing and
maturing of the crops when the demands of water is maximum and the flows are
minimum. It took Pakistan two years to convince the Bank that Pakistan’s
contentions were correct that the division of the waters as put forward by the Bank
would not accomplish the result visualized in the actual proposal. After long
negotiations under the good offices of World bank a Treaty was signed with India in
1960 for sharing of river waters.

KEY FEATURES OF IWT

The document of Indus Waters Treaty (IWT) comprises a preamble and 12 articles of
the treaty and 8 Annexures. The Treaty provides that all waters of the three eastern
rivers–Sutlej, Beas and Ravi–shall be available to India (Article 2) and Pakistan shall
receive ‘for unrestricted use of all waters of the western rivers (Indus, Jhelum, and
Chenab). India shall …’let flow all the waters of the western rivers’ and shall not
permit any interference with these waters except for certain uses, namely, domestic
use, agricultural use; non-consumptive use; and generation of hydro-electric power.
The Treaty imposes restrictions on the agricultural uses and hydro-electric power
generation by India which are stipulated in Annexures C and D.

The restrictive conditions stipulated in the Annexures C, D, and E of the Treaty were
meant to address Pakistan’s concerns.

Under the Treaty, Pakistan was required to construct replacement works which could
accomplish transfer of waters from Western Rivers for irrigation supplies to the
affected lands previously under command of canals from Eastern Rivers.

There was a transition period of 10 years during which these works were to be
completed. WAPDA completed the Indus Basin Replacement Works within the given
time.

Article 8 of the Treaty established a Permanent Indus Commission (PIC), comprising

‘a Commissioner for Indus Waters appointed by each country. The Commission shall
try to settle promptly to resolve any questions relating to the implementation of the
Treaty.

If the ‘questions’ turn into ‘differences’ essentially of a technical nature, they can be
referred to a Neutral Expert, whose findings would be final and binding on both
Parties. The second option is arbitration through International Court of Arbitration
for resolving disputes. The procedure for the establishment of the court of
arbitration is given in the annexes of the IWT.

GAPS IN THE IWT

Indus Waters Treaty is unique in the sense that rivers and not the waters have been
divided between the two countries. It was a distinct departure from the concept of
International Law of Upper and Lower Riparian Rights (protection of existing uses
from the same source). In this way Pakistan had to forego the perpetual flow of fresh
waters of three Eastern Rivers which it used to historically receive for irrigation.

There is no provision in the existing Indus Water Treaty on how the Parties should
respond to current or future reduction in the river flows caused by climate change,
sedimentation, and other factors. The Treaty does not address the issue of quality or
pollution of water from industrial and agricultural run-off, deforestation, etc. It does
not provide for watershed management in respect of rivers whose catchment areas
are located across the border. The Treaty does not provide for environmental flows
in the eastern rivers ‘allocated’ wholly to India. Yet another omission relates to the
proper management of the ground waters. Whilst permitting India to use the waters
of the western rivers for irrigation and hydroelectric generation, it does not call for
an examination of the cumulative effects of a cascade of such projects. These
matters can be discussed and resolved by India and Pakistan under the provisions of
the Treaty.

MAJOR WATER ISSUES B/W INDIA & PAKISTAN AND ITS IMPLICATIONS
During the period 1960 to 1970, India concentrated on development projects on the
three eastern rivers. The first issue over the implementation of IWT arose in the
1970s when India planned the building of Salal Dam on Chenab River for producing
690 MW. Pakistan formally objected to the design of the dam and the storage on the
ground that it was in violation of the Treaty. A series of talks in 1976, lead to an
agreement by India to change the design of the dam in order to allay Pakistan’s
concerns.
A- Wullar Barrage

The second dispute relates to the construction of a barrage on the Jhelum River at
the mouth of Wullar Lake, some 30 kilometers north of Srinagar. India wants to
increase the storage and hence level of Dal Lake. Pakistan submitted a complaint to
the Indus Commission in 1986-87, saying that the project is against the provision of
the Treaty.
The Pakistan Indus Commissioner visited the project site in May 2013. There are
indications that some adjustments to the design of the barrage would facilitate an
agreement on the project.

B- Baghlihar HPP

The third Indian project is the 450 MW Baglihar hydropower project. Pakistan
claimed that the project design violated the IWT because the dam included low-
gated spillways which would increase the manipulable storage beyond the limit
permissible under the Treaty.

The neutral expert’s verdict, issued in 2007, rejected Pakistan’s objections and
upheld the necessity of the gated spillway and the placement of the spillways below
the dead storage level, arguing that such placement of the spillways was a global
best practice for sediment control. The verdict was a ‘blow’ for Pakistan because it
‘reinterpreted’ the IWT. 

The filling of the Baglihar reservoir in August 2008 provoked a new controversy.
Under the IWT, such filling of reservoirs on the Chenab has to be carried out on
mutually agreed dates during the period 21 June – 31 August when the monsoon is
at its peak, so that the stoppage of water flow does not hurt Pakistan’s crops. 
Pakistan alleged that the filling had continued beyond 31 August in violation of the
IWT, causing a loss of 2 MAF of water needed for its rice and wheat crops and
demanded compensation.  India rejected Pakistan’s claims.

C- Kishanganga HPP

The 900 MW Kishenganga Hydro-Electric Project (KHEP) is thus far the most complex
and contentious project being built by India on a western river (Jhelum), which was
contested by Pakistan in view of its alleged violation of the IWT. The dispute was
resolved by the decision of a Court of Arbitration on 20 December 2013. The project
envisages the construction of a 35.48 meter high concrete dam. The water of the
Kishenganga River is to be diverted through a 24 kilometer long tunnel to a tributary
of the river called Bunar Madumati Nulla, which will be re-routed to the Jhelum
through the Wullar Lake.

DISPUTE RESOLUTION

In May 2010 the dispute was referred to the Permanent Court of Arbitration (PCA) in
accordance with Annexure G of the Treaty. The PCA decided that KHEP being a run-
of-the-river project was allowed by the IWT, which also permitted inter-tributary
diversion, so long as the water–after use for the hydropower plant–is restored to the
river flowing into Pakistan. The Court ‘explicitly stated that the Baglihar ruling
(allowing the placement of low spillway gates below the DSL) did not constitute a
precedent, and implied that the Baglihar Neutral Expert had erred by not balancing
engineering concerns with the diplomatic and security factors which were the heart
of the IWT’. The Court upheld the need for adequate environmental flows which had
not been addressed by the IWT. After taking into account the divergent estimates of
minimum flow of water proposed by India and Pakistan below the KHEP, the Court
decided on a flow of 9 cubic meters per second or cumecs.

World Bank has asked Pakistan to accept India's demand of a "neutral expert" and
stand down from pursuing its stand of referring the Kishanganga dam dispute to the
International Court of Arbitration (ICA). Pakistan should intend to consult with the
world bank.
D- Ratle HPP

Recently India has submitted designs of four new projects including Ratle HPP on
Chenab River and all of them fail to comply with the clauses of the Treaty. Large size
pondage and placement of spillway gates below the Dead Storage Level are main
objections by Pakistan. India has now proposed to refer the dispute to a Neutral
Expert while Pakistan proposes to go for International Arbitration.
RECOMMENDATIONS FOR RESOLUTION OF CONFLICTS

Water issues can lead to contribute towards a major conflict between both Pakistan
and India, if an impartial framework is not formulated by both sides in the near
future. Experiences across the globe like the Itaipu Hydel Project between Brazil and
Paraguay show that in many situations, rather than causing a conflict, the need for
water sharing can generate unexpected cooperation. The following
recommendations can be used by the policy-makers on both sides to come up with a
suitable resolution to the thorny issue of water sharing instead of conflicting in and
wars etc:

 The IWT‟s dispute resolution mechanism should be modernised according to

the changing environmental and demographic realities on both sides of the
border to bring it more in line with contemporary international watercourse
law, which pertains to the use and conservation of all waters that cross
international boundaries, including both surface and groundwater.
 There should be an institutional mechanism to exchange data regarding the
hydrology of the current and planned projects on the shared rivers, especially
the flow data to ensure equitable sharing of water.
 Both countries should use the platform of South Asian Association for
Regional Cooperation (SAARC) on issues like water management and
agricultural growth with emphasis on greater interaction and cooperation
between member countries to seek water management solutions through
joint hydropower projects and energy swaps between the countries.
 Strong political will should be demonstrated by both sides to make joint
management of the Indus Basin possible without politicising the issue. A
Regional Centre for Water Management should be set up to ensure efficient
use of available water resources. Both India and Pakistan should send their
researchers to the Centre to study and deliberate on water issues.
  Water issue should be separated from other outstanding issues between the
two countries, and the resolution of water disputes should be made a top
priority in any future confidence building measures.

It is high time that India ended its high-handed upper riparian politics, and
instead put its efforts towards engaging Pakistan for an integrated Indus Basin
management system, as both countries stand to lose enormously from conflict that
could arise out of water disputes. Water sharing demands policies of consensus and
compromise; therefore, steps ought to be taken towards a new approach to water
security, one that focuses on the need for cooperative management of shared
natural resources rather than confrontation.

Water Sector Development by WAPDA:

Main Water Storage Project being taken up at present by WAPDA are:

READY FOR IMPLEMENTATION PROJECTS

 Diamer Basha Dam (4500 MW, 8.1 MAF)

 Mohmand Dam Hydropower Project (800 MW, Storage 1.293 MAF, CCA
16737 Acres)

UNDER STUDY PROJECTS

 Chiniot Dam Project (80 MW, Storage 0.90 MAF)

 Shyok Dam Multipurpose Project (640 MW, Storage 8.0 MAF)

 Hingol Dam Project (CCA 65000 Acres, Storage 1.205 MAF)

 Bara Dam Project (CCA 41,729 Acres, Storage 85,363 AF)

 Mangla Marala Link Canal Project (CCA 90,000 Acres)

FUTURE PROJECTS

 Skardu Dam (1200 MW, 3.2 MAF)

 Bhimber Dam Project (2 MW, CCA 24,710 Acres)

 Integrated Hydropower Development of Chitral, Swat and Kabul Rivers (1751
MW)

 Akhori Dam Project (600 MW, Storage 7.0 MAF)

 Tank Zam Dam Project (25.4 MW, CCA 55,500 Acres)

 Sukleji Dam Project (CCA 12,000 Acres)