Indus Waters Treaty: Unfair And Outdated

Pakistan has written to India seeking reconsideration of its decision to keep the Indus Waters Treaty (IWT) in abeyance. Its letter declares India’s action to be “unilateral and illegal”. The tone is not conciliatory, but for the first time, signals willingness to discuss India’s concerns. India has declared that it will keep the treaty in abeyance until Pakistan “credibly and irrevocably” abjures support for cross-border terrorism.

Linking talks on the IWT to action on terrorism can be tricky. India has tried in the past to pin Pakistan on its support to terrorism, but each time it wriggled out with insincere promises. The IWT deals with our country’s water rights. And our own water needs should have priority over international commitments, especially since there is no accepted international law on river water sharing.

The IWT, signed in 1960, divided the waters of the Indus and its five tributaries, Jhelum, Chenab, Ravi, Beas and Sutlej. India got full rights to the waters of the Ravi, Beas and Sutlej (the ‘eastern rivers’), which have an average annual flow of 33 million acre-feet (MAF). Pakistan got near-full rights to the other three rivers—Indus, Jhelum and Chenab—with an average annual flow of 135 MAF. On these rivers, India was allowed very limited consumptive use for agriculture and run-of-river hydel projects. The aggregate storage it could build for all purposes, including flood control, was limited to 3.6 MAF.

Pakistan was given inspection rights to ensure that India adhered to the prescribed storage and consumption limits. The treaty provided for a two-pronged dispute settlement mechanism—a neutral expert for technical questions and a court of arbitration for other issues—enforceable by the World Bank in a time-bound manner. A fund, paid for by both countries, was placed with the World Bank to pay for the expenses.

How did the World Bank come to mediate a river water-sharing treaty? Why did a bank, set up for reconstruction and development after the Second World War, wade into a politically charged dispute? The story goes that David E. Lilienthal, a former chairman of America’s Tennessee Valley Authority, came to India on a personal visit in 1951. His recommendations were seized upon by Eugene Black, the then president of the World Bank, who wrote to the prime ministers of India and Pakistan offering his good offices in resolving their water-sharing problems. Both accepted the offer and the World Bank set up a Working Party in 1952.

In the negotiations, Pakistan demanded 30 per cent of the waters of the eastern rivers and all of the western rivers. This would give it nearly 90 per cent of the total water. In the final agreement, India got 20 per cent of the aggregate water. It also agreed to pay £62 million to enable Pakistan to construct link canals for switching to the western rivers. The treaty set up a permanent Indus Commission with a commissioner from each side to meet every year. The World Bank lubricated the deal with a $1 billion fund for dams in both countries.

The treaty satisfied East Punjab, allowing it to go ahead with dams on its three rivers. But it sacrificed the interests of Ladakh, Jammu and Kashmir (J&K), which lost nearly all rights to their waters. They protested in vain. A proposed dam on the Chenab had to be abandoned, while Pakistan was allowed to go ahead with the Mangla Dam on the Jhelum in Pakistan-occupied Kashmir (PoK).

The expectation that the treaty would lead to the optimum utilisation of Indus waters through mutual cooperation was belied soon. Pakistan started objecting to all Indian projects in J&K. India avoided going to dispute settlement in its enthusiasm for bilateralism, and in the process, conceded Pakistan’s demands on design change in the Salal Dam on the Chenab in the 1970s. This severely compromised its efficiency due to siltation. The Tulbul Navigation Project on the Jhelum was put on hold. It was only in 2005 that India allowed the Baglihar Dam’s design to be examined by a neutral expert, who upheld it. A few years later, another project, on the Kishanganga river, was upheld by a court of arbitration.

Undeterred, Pakistan continued to object to Indian projects and the Kishanganga and Ratle projects got embroiled simultaneously with a neutral expert and a court of arbitration. Pakistan rejected India’s proposal to hold consultations to modify the treaty to avoid such duplication. An impasse ensued and the Indus Commission did not meet after May 2022.

Pakistan’s obstructionist attitude was compounded by the security situation in J&K, due to which several Indian projects got delayed. India has been able to develop barely a sixth of the estimated 30,000 MW hydel capacity of the rivers. The Pahalgam attack became the proverbial last straw which broke the back of India’s patience.

The IWT’s water-sharing formula is flawed and unfair. Pakistan got 80 per cent of the water, despite having only 47 per cent of the Indus basin. India with 39 per cent got only 20 per cent. Pakistan based its claim on ‘prior use’, but this cannot be an overriding consideration. The counter principle of the upper riparian having sovereign rights to its water, the Harmon Doctrine, named after US Attorney General Judson Harmon, has more adherents. In a dispute with Mexico in 1895, he declared that a country had “absolute sovereign” power over its watercourses within its borders.

The international law on water sharing remains highly disputed. The sole international convention, the UN Watercourses Convention, came into effect in 2014, but has been ratified by only 43 countries. India and Pakistan are not among them. No upper riparian country has given the kind of rights India has conceded to Pakistan.

Besides, the IWT does not have an exit clause or expiry date even if there is a fundamental change in circumstances. This is out of sync with the Vienna Convention on the Law of Treaties. The IWT can be modified only with Pakistan’s consent. Two rivers of the IWT, Indus and Sutlej, originate in Tibet, where China is reported to be constructing dams. China neither shares any information on these dams nor hydrological data on the water flow. This constitutes a ‘fundamental change in circumstances’, a valid basis for termination of a treaty under the Vienna Convention.

Climate change is another factor that warrants revision of the treaty. The treaty must promote the use of new technologies and techniques for optimum harnessing and utilisation of water in water-stressed times.

It is evident that Pakistan’s alliance with the US played a key role in getting the World Bank to mediate in the water dispute and sell the treaty to India with the offer of funding dams. This remains the only such treaty mediated by the World Bank. Its funding of dams on the eastern rivers in India was small compared to the dams in Pakistan. It is gratifying that its current president, Ajay Banga, has clarified that the IWT is a treaty between two sovereign countries and the bank is only a facilitator. The treaty’s blatantly unfair division of water, climate change and upstream actions by China are valid reasons for India to abrogate it or keep it in abeyance until Pakistan renegotiates it, regardless of its assurances and action on terrorism.

(Views expressed are personal)

Dilip Sinha is an author and former diplomat

This article is part of Outlook’s 1 June 2025 issue, 'Gated Neighbourhood', which examines the state of diplomacy, media, and democracy in the wake of the ceasefire. It appeared in print as 'Unfair and Outdated.'