A dispute over water, a lifetime of war?

Published: September 29, 2016
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After the Uri incident, the Modi government has made its intentions of revisiting the treaty known. PHOTO: AFP

When the Indus Water Treaty was signed by Prime Minister Jawaharlal Nehru and President Ayub Khan in September 1960, President Eisenhower described it as the,

“One bright spot…in a very depressing world picture.”

Only eight months after independence, in 1948, India had first begun diverting water from the Pakistani canal system emanating out of the Indus water system. After about a decade of conflict over water (which also saw the two countries reject a proposal for unified basin development that would have brought Pakistan and India together in many ways), it fell to the newly installed military regime in Pakistan and Jawaharlal Nehru in India – now in his 13th year as India’s all powerful prime minister – to resolve the lingering dispute and so they decided to partition the waters of the Indus.

The sponsor and main backer of the treaty was the World Bank under its President Eugene Black. India was to get the eastern rivers of Beas, Sutlej and Ravi and 20% of the western rivers, Chenab, Jehlum and Indus. It was almost a new beginning for the subcontinent which had experienced the trauma of violence at the time of partition.

Here was a historic opportunity for the two nations to let bygones be bygones and if KM Padmanabhan’s account published in The Hindu is to be believed, much was discussed, including a Lahore-Dacca rail link, military cooperation and even the supply of Sui Gas to Bombay (as it was known then). It is a tragedy that neither country followed through on these proposals but the Indus Water Treaty survived. It survived the 1965 and 1971 wars and the Kargil conflict.

Now, after the Uri incident, the Modi government has made its intentions of revisiting the treaty known. If media hype is to be believed, the right wing Hindu chauvinist government in India plans to undo 56 years of cooperation between the two countries, which though not flawless, has helped keep the distribution of water somewhat equitable, between the upper riparian India and lower riparian Pakistan.

The riparian water rights are defined by the law and have their origin in the English common law. Simply put, the principle is that an upper riparian (such as India) cannot unilaterally stop flow to a lower riparian (such as Pakistan). This is the foundation of the basic principles governing water allocation. The Indus Water Treaty is a binding treaty between two sovereign states. The implication, therefore, is that a unilateral revocation will amount to nothing less than an act of war on India’s part.

What is more is that the Indus Water Treaty does not contain any clause allowing for a withdrawal or termination of the treaty, which is how it should be and was certainly how Pakistan and India intended it to be in 1960. According to the Vienna Convention on the Law of Treaties, any treaty that does not contain a clause allowing for its denunciation, can only be exited through mutual agreement.

In my opinion, India will not unilaterally revoke the Indus Water Treaty because it realises that the damage done to Indo-Pak relations as a consequence would be irreversible. It might however consider using the provisions of the treaty against Pakistan. The first step in this scenario is to suspend the meeting of Indus commissioners, who meet twice a year.

Secondly, it would want to use the waters from Pakistani rivers i.e. Chenab, Jehlum and Indus for hydroelectric power, and then attempt to argue that it amounts to non-consumptive use. Under this garb, India can then control the water supply on Pakistani rivers. When Pakistan would object, it would find that in the absence of the meetings of Indus Commissioners it has no recourse left, because that crucial first step is a conditional precedent for the next two steps in dispute resolution, i.e. the appointment of a neutral expert and a United Nations Arbitration.

In other words, Pakistan would have no means of redressing water disputes under the Indus Water Treaty. This would only mean one thing and that is the most dreadful thing of all – war.  So, whether it plans on revoking the treaty or abusing it, the question is whether India is going to risk the inevitable nuclear war because it wanted to teach Pakistan a lesson?

All things considered, it would be a bad gamble.

First of all, India cannot immediately divert all water away from Pakistan and would require sizeable investment in terms of dams and projects that might take decades to complete. Supposing it does do it, what would it achieve eventually?

From the Pakistani perspective, the matter is one of life and death. If Jehlum, Chenab and Indus are threatened, the entire civilisation of this region, which dates back millennia, will face extinction. Does India really want a mob of 200 million people (or even 300 million depending on when India actually gets around to realising its evil designs) with nothing to lose on its borders? If India’s concern is terrorism, any such rash action is only likely to exacerbate the problem. At this moment, the common man in Pakistan does not want to wage war with India.

All that will change, if India is seen to be attempting to stifle the collective future of the Pakistani people. Voices of reason on this side of the border will be drowned out and those which advocate the fatalistic Ghazwa e Hind scenario will resonate.

Obviously Pakistan will hurt grievously as a result and may even cease to exist in its present form, but the damage done to India’s ambitions of becoming a world power rivalling China would be total, enough to ensure that it remains mired in poverty for another millennium. The much touted growth story will become a fable, a children’s fairy tale.

I stipulate that Indian policy makers are too smart to undertake such foreign policy adventurism and to put on stake all they hold so dear. Ultimately they will realise, as we should as well, that we do not get to choose our neighbours. For better or for worse Pakistanis and Indians are destined to be neighbours for as long as the idea of nation states remains the only viable means of organising humanity.

As for the Indus Water Treaty, it will outlive chauvinists on both sides.

Yasser Latif Hamdani

Yasser Latif Hamdani

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He tweets as @theRealYLH (twitter.com/therealylh)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Gratgy

    Nuclear this nuclear that. Are the commentators thinking that India will not retaliate massively even more than Pakistan. From a dry wasteland Pakistan will rapidly turn into a radioactive wasteland. It might take a few decades for India to recover but then Hiroshima and Nagasaki have recovered and are way ahead of any other Pakistani city. Maybe Pakistanis are just satisfied if they would hurt India a little bit given the geographic size even though it would lead to their own painful extinction.Recommend

  • Chinmay Nagarkar

    Time for Pakistan to wake up. In 10 years indias missile defense shield will be operational. Game over.Recommend

  • sParthiv

    Every statement made by pakistan has the word nuclear. I wonder when are they actually going to use one. If Pakistan really has the balls to use one it would already have. And if you use one then what next? U think pakistan as a nation is going to come out alive?

    Ever heard of boiling frog hypothesis? Well india is using it on you. Throw a frog into hot water it will jump out, but throw a frog into a bowl of cold water and gradually heat the water the frog dies before it realises whats happening. Pakistan is the frog here.Recommend

  • alpha_centaur

    I loved the positive ending. Hope sense prevails on both sides.Recommend

  • Bairooni Haath

    We don’t have relationship with Pakistan, we don’t want relationship with Pakistan. Pakistan has been trying to bleed India with terrorism in Kashmir, it is time India returned the favor.Recommend

  • Zouggik Patra

    Good article for threatening. I find all the intelligentsia in Pak doing either the K or N – rant. is it not a good choice to stop terrorism and stop giving safe heavens for terrorists then to cease to exist?Recommend

  • Ravi Blr

    Simple solution, stop sending terrorists to India. Leave India alone, and we will want to have nothing to do with you. Recommend

  • vinsin

    “India’s ambitions of becoming a world power rivalling China” – I dont think that is India ambitions. India can utmost like Japan. India can never be a world power or even a regional power.Recommend

  • vinsin

    That is not a suretor for every incoming missiles.Recommend

  • disqus_MKeynes

    those fatalistic voices have been resonating for many years (actually decades) already…it is time for India to do things differently than it has been doing in past 70 years (one of benevolence passiveness) if it has to achieve a different outcome in Pakistan;s behavior..in other words, it needs to take the bull by its horns, it needs to call the Pakistani bluff of nuclear “flashpoint” and be ready for a serious war as well as attendant damages that will come with it. The war should be so serious that Pakistan’s politics of Islamic fundamentalism should be changed for ever..it should become a true secular country.Recommend

  • Patwari

    Sorry, The Hindu Hitler, [also known as Butcher of Gujrat] will
    destroy Mahatmaji’s country. Will take YOU all down before with him.
    Just like Hitler did.Recommend

  • BlackHat

    Instead of exploring nightmare scenarios, is it not easier to put an end to use of terrorism as a state policy which, apparently, is hurting Pakistan itself? That would open the doors for negotiated settlement of issues and you could still have the Lahore Dhaka rail link.Recommend

  • Feroz

    If you prefer your terrorists to your water, who can stop you. Pakistan may have be fond of its terrorists but a neighbor who is being attacked by terrorist has no obligation to feed them. Did Pakistan honour any of the Agreements and promises made to India, including the Simla Agreement ? Please keep your terrorists and threats to yourself, no one is shivering in fear.Recommend

  • Paki Terrorist

    Indus water treaty simply does not make sense from India’s point of view … !! … how can India honor a treaty with Pakistan, when a low intensity conflict is going on for over three decades now, with no signs of retreat … ??!!Recommend

  • Salim Alvi

    Pakistan of 1960 is no more. Majority parted to become Bangladesh in 1971. India need to provide Bangladesh 60% of 1960 Pakistan’s share. It can be done by diverting the water to Ganga basin which will finally reach Bangladesh. By next year a new independent state called Sindhudesh. India needs to give Sindhudesh’s share by diverting 25% of 1960 Pakistan’s share to Rajasthan (now called Indira Gandhi Canal) canal. India can help Sindhudesh in supplying IWT water to Balochistan. So left over 15% IWT water can go to Western Panjab aka PakJab.Recommend

  • yatin

    Water can be used as leverage to stop Pakistan’s support of terrorism / freedom fighters (pick your term) in India’s bit of Kashmir. A way to nonviolently stop the conflict and keeping the borders as is…would that be so bad? Then both sides could move on.Recommend

  • Gp65

    Even when India said it was tIme to review the treaty’ it never said that means to turn the water off conpletely. It could however say that we will give 50% water to lower riparian. Nowhere in the world would that be considered an act of war. Your iron brother for instance does not even give 50% of river Brahmaputra to India nor is it ready to sign any treaty for sharing water.

    Incidentally all 3 Punjab based rivers , water goes to India and all 3 Kashmir based rivers entire water not just 80% goes to Pakistan. India can build run of the river dams to extract electricity but water goes entirely to Pakistan. Thus 20% of TOTAL water goes to India and 80% to Pakistan. India honored the treaty even during war and yet has repeatedly been accused of stealing water, and hatred fanned in Pakistan on that basis. So actually doing what you have been accused of doing all along will not have any adverse consequences on Indo-Pak relations which are not great to begin with.

    The current unfair treaty was signed under great coercion by India. When Pakistan does not honor Simla treaty and keeps on bringing up UN resolution or honor Musharraf’s commitment in Jan 2004 to not allow Pakistani land to be used against India, why should India unilaterally hold on to a highly unfair treaty?

    As you correctly said, India does not have capacity to store additional water at this time but eventually it will. At that point India will have a non-war leverage to get Pakistan to stop harboring anti-India terrorists.Recommend

  • Palash Singh

    Don’t worry China will build pipeline to carry water from Tibet.Recommend

  • Mike Pilgrim

    Look, Modi is wearing a pull-to-start hat.Recommend

  • vinsin

    Missile shield is not suretor for every incoming missile.Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    This is the importance of appearing irrational. 2 Rational players will never indulge in a fight. But, Pakistan is not Rational. Rather it appears to be irrational. Sheltering Terrorists, supporting Radical Islam and threatening nuclear war at the drop of a hat!

    India appeared to be the rational actor here. Surgical strikes can never happen they said. They wouldn’t even think of it, they concluded!

    Modi is not appearing rational. This is a calculated move.

    So far Pakistani leaders were thinking India is a rational player. “It will never dare to withdraw from IWT”, they said.

    If there are Rational minds in Pakistan, they will stop pushing an apparent Irrational Modi. Pakistan should practice strategic retreat. But, the monsters it has created will not stop baying for blood. That energy will be forced to be directed internally.

    IWT should not be scrapped. Once a threat has been given, it has to be carried out. Else the adversary will never believe you next time. IWT should be tinkered with, a few rules broken here and there. Salami tactics..

    Reduce water a drop at a time. Pakistan will be like a frog stuck in a hot vessel.Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    Then stop needling India. If you needle an irrational player, you will get disproportionate response.Recommend

  • Chinmay Nagarkar

    Lets say Pak can launch 100 missilies, and so can India. Lets say 100 are enough to wipe out Pak, and a third of India. Lets say India stops 50% of missiles using the shield. War would then imply complete destruction of every asset Pak Military and Pak society has (including their lives), while it would destroy a sixth of India. Pak army is not dumb enough to give up all their perks just to destroy a sixth of India. Tweak the numbers, but you’ll reach a similar conclusion.Recommend

  • Pathetic

    This totally ridiculous Modi statement truly reflects his poor background and extremely anti Muslim broughtup. He showed this ugly side in Gujarat Muslim massacre when he was Chief Minister and now very foolishly he touched Indus Water Treaty. This shows that the man is not suitable for the job. He is embarrassing educated Indians and the diplomatic community of the world. He is also hurrying his departure. Some how lackofeducationwise I find great similarities between the two Prime Ministers involved. They can destroy a nation togather!Recommend

  • Mike Pilgrim

    China will cut off water from Tibet rivers to India.Recommend

  • Mike Pilgrim

    Low intensity conflict of Indian occupation of Kashmir. No sign of retreat.Recommend

  • Mike Pilgrim

    Leave Kashmir alone.Recommend

  • Mike Pilgrim

    India bleeding Kashmir with terrorismRecommend

  • Mike Pilgrim

    Indians polluting Ganges and Brahmaputra using it as a toilet, Ganges and Brahmaputra should be diverted to China for sanitary, ecological and environmental reasonsRecommend

  • Sane

    Before 1971, India was divided in two parts in 1947. India also did not give due share to the divided part.Recommend

  • Sane

    But, first make you dried with water resources considerably.Recommend

  • yatin

    China will cut off Tibet waters regardless, no matter what India does with Pakistan. China will do what’s best for China, that’s simply how it operates. Its cold and smart and everyone understands it.Recommend

  • Mike Pilgrim

    What’s best for China is to take severe action against any state interfering in their economic well-being. India has the terrible misfortune of being that state.Recommend

  • Salim Alvi

    Not without getting GB & all northern areas including AksaiRecommend

  • Salim Alvi

    Right now only 20% is for India. But soon 50% will be for India, 30% for Bangladesh via Ganga, 13% Sindhudesh via Indira canal, 3% for Balochistan through SindhuDesh & 4% to Pakjab/LahoristanRecommend

  • disqus_MKeynes

    He isnt embarrassing anybody. Get out of “Muslim’ mindset. We know Pakistanis backgroundRecommend

  • disqus_MKeynes

    Is your country not being destroyed before your very eyes since last 70 years? For your knowledge, Modi is considered tbe best PM India has ever had since Nehru.Recommend

  • disqus_MKeynes

    so far we have managed them using our approach and it has largely worked…proof is in the pudding..we have good relations with all countries (except few) even with those warring among themselves. Given India’s limited resources, powers, constraints, its foreign policy design not only suits its needs but has withstood the test of time. China is simply flexin its muscles and preparing for all possible eventualities…the harsh truth is that it needs India in the long run and it does want to settle all disputes with India. From what some Chinese said privately, they respect India and are using Pakistan for strategic purposes to keep India under pressure. Personally, I soubt that any Chinese have an iota of respect for Pakistan or Pakistanis…they just are waiting to lay their hands on whatever Pakistan is offering them.Recommend

  • disqus_MKeynes

    There is no legal requirement of retreat. Has any country ever retreated from occupied country without being forced by war? Will you retreat from Durand line? from Balochistan? from POK , G&B?Recommend

  • Mike Pilgrim

    India has made it clear to China with Dalai Lama, that it will use terrorism against China. India put Russia in Pakistani hands. China, Russia, Pakistan in one group. India, Afghanistan, Bangladesh in the other group. America will dump India like they did Pakistan, CENTO, SEATO. China owns American industry miscalculation by India.Recommend

  • Mike Pilgrim

    UK retreated from Ireland, Scotland, France retreated from Vietnam, Algeria. US retreated from Lebanon.Recommend

  • Palash Singh

    no problem. enough water from rest of 4 rivers that originate in IndiaRecommend

  • Mike Pilgrim

    Figure out how to make toilets first before you meddle in neighboring states. Recommend

  • Salim Alvi

    for Indians, Pakistan is the big toilet which India needs to have for morning dumpRecommend

  • Mike Pilgrim

    Modi dresses like a clown, talks like a clown, behaves like a clown.Recommend

  • Mehraj

    Wishful thinkingRecommend

  • Mehraj

    Hatred is mutual. Irony is that even its fanned by educated people on both sides. I know for one thing, mistakes must be on both sides. Even after 70 years we still refuse to accept each other. Both countries will doom if they dont start respecting each other and admitting and correcting their mistakes. IWT will stay and its in collective prosperity of 1.5 billion people.Recommend