The IWT was signed on September 19, 1960 by the then Indian Prime Minister Jawaharlal Nehru and Pakistan’s President Ayub Khan after nine years of negotiations carried out with the support of the World Bank. It has remained in force since then despite worsening of mutual relations and even wars between these two neighbouring states. It came into limelight last year when Indian Prime Minister Narendra Modi put the blame of Uri attack on Pakistan and threatened to revoke the treaty.
As the treaty defines formula of sharing of three western rivers flowing into Pakistan from India, the former has been quite protective and has always raised concerns on perceived threats due to building of dams by the latter. The Indian camp is of the opinion that Pakistan raises concerns just to delay their projects and a proof of it is that some decisions about reservoir designs have ultimately come in India’s favour. It cites Article 12(3) of the treaty-that has a provision for the treaty to be modified from time to time and stresses that as some modern, efficient and environment-friendly designs are not covered under it, it should be revised to include these.
However, the main issue at the moment is that there is a dispute over the forum that both the parties to the treaty shall approach for this purpose. Pakistan is in favour of approaching the International Court of Arbitration (ICA) because it feels it did not get a fair deal from the independent expert in case of Baglihar Dam. India on the other hand is for a limited World Bank role which it says can only designate people to fulfill certain roles when requested by either or both of the parties and cannot intervene directly. The first option about resolution of issues through bilateral dialogue does not seem to work at all in the current scenario.
Joydeep Gupta, editor The Third Pole (TTP), a media website with focus on environmental and water issues, believes the contentious issue remains the same — the definition of ‘non-consumptive’ use of water by India in the three western rivers. He says since there is no agreement between the two governments on this definition, it looks likely that the current stalemate will have to be overcome through independent third party arbitration.
According to the definition in Ecology Dictionary, non-consumptive water use includes water withdrawn for use that is not consumed, for example, water withdrawn for purposes such as hydropower generation. “This also includes uses such as boating or fishing where the water is still available for other uses at the same site. …No typical consumptive use is 100 per cent efficient; there is always some return flow associated with such use either in the form of a return to surface flows or as a ground water recharge. Nor are typically nonconsumptive uses of water entirely nonconsumptive. There are evaporation losses, for instance, associated with maintaining a reservoir at a specified elevation to support fish, recreation, or hydro-power, and there are conveyance losses associated with maintaining a minimum stream flow in a river, canal, or ditch.”
Environmentalist and Pakistani water expert Ahmed Rafay Alam agrees that the dispute at the moment is more about the forum and less about the specifications of the two dams in question. He says Pakistan’s concern is that the decision by the independent expert on Baglihar Dam was need-based and not right-based and the decision was given in India’s favour on grounds that the new design was environment-friendly and had defence mechanism against sedimentation. May be for this reason, he says, Pakistan is not demanding appointment of an independent expert this time.
In the opinion of Uttam Sinha, an Indian analyst, the talks may have been inconclusive but the fact that the two countries are engaged in discussion over the differences in the interpretation of the provisions and restrictions as defined by the IWT is encouraging. He says more the discussions better are the chances of clearing misperception. “India respects the treaty which it signed in 1960 and is willing to discuss the differences over the construction of the hydroelectric power facilities on the tributaries of the Jhelum and Chenab within the norms of the treaty,” he adds.
Sinha says the current discussions are a matter of interpretations of the restriction and permission clauses under the IWT and concerns the Kishenganga and the Ratle power plants. The fact that India is willing to engage in discussions suggests that the treaty is under no threat. However, Pakistan has also the responsibility to depoliticise the treaty and suggest long term approaches to water management.
On the World Bank role, he says it is the third party to the treaty and has a legitimate role to play. “The legitimacy will further be enhanced if the bank plays the role of a facilitator rather than an arbitrator.”
Contesting the designs of the projects within the definition of the IWT, he says, is a right that Pakistan has and which it has frequently used. However, it does not seem that settling the differences is what Pakistan wants to achieve but the objective is to politicise the differences, he says. “The interpretation of the treaty can well be settled within the bilateral framework of the Permanent Indus Commission as defined by the Indus Waters Treaty,” he concludes.
Engineer Muhammad Suleman Khan, who is the chairman of Indus Water Council, rejects the excuse that new dam designs must not be challenged because these are modern and environment-friendly and says his concern is that the Indians are building storage capacity far more than that allowed under the treaty. He says the decision on Baglihar Dam by the independent expert was wrong but it prevailed because the concerned Pakistani officials did not challenge it in ICA. “How can India’s need to use more water be given more weightage than the clearly stated water-sharing formulas in the treaty?”