The Indus Waters Treaty

Sattar Khan
Naveed Irshad

The origin of the Indus Basin water dispute goes back to the partition of the Punjab. But it came on the surface on April 1, 1948, when the East Punjab Government tapped off Pakistan’s share of waters and stopped the flow of canal waters to the West Punjab.

Pakistan has fertile soil but its climate is hot and dry. More than one half of the area receives less than ten inches of yearly rainfall and the rest receives less than twenty inches. The mainstay of Pakistan’s economy is agriculture, which depends almost entirely on irrigation by canals drawn from the river Indus and its five tributaries. The three western rivers-the Indus, the Jhelum and the Chenab-flow into Pakistan from the state of Jammu and Kashmir, and the three eastern rivers the Ravi, the Beas and the Sutlej-enter Pakistan thought India. The Indus river system, in fact, is Pakistan’s source of life; without its life-giving waters, Pakistan would never be in a position of supporting more than a small fraction of its population.

During the monsoon season when the rivers are in spate, enormous quantities of water flow into the sea. In order to harness these summer floods, huge storage reservoirs are needed. Such projects are costly, take a long time to complete and require suitable sites. The only reservoir planned before partition was Bhakra Dam on the Sutlej river in East Punjab with storage capacity of 4 million acre-feet. But the downstream province of Sindh complained before it was sanctioned that the operation of Bhakra Dam would always effect functioning of its inundation canals. The Government of undivided India, in order to determine the rights of various provinces and states to the Indus Basin Waters, appointed a commission in 1941, under the Chairmanship of Sir B.N. Rau. The Rau Commission laid down, as principle governing the respective rights of the parties, “equitable appointment”. This principle is universally recognized as regulating the rights of the states having a river basin, includes the rules than an upper riparian can take no action that would disturb the existing irrigation of the lower riparian. The partition of the Punjab cut across the rivers and canals of the Indus basin irrigation system in such a way as to make India the upper and Pakistan the lower riparian.

In the boundary award of the Punjab, announced on August 17, 1947, Radcliff not only gave away large Muslim majority areas to India but so drew the boundary between the two Punjabs as to leave, on the Indian side of the border, both Madhopur Head Works on the river Ravi and Ferozepur Head Works on the river Sutlej. The Madhopur Head Works controlled the Upper Bari Doab canals, of which the Central Bari Doab canals in West Punjab were only a continuation. The Ferozepur Headworks controlled Dipalpur canal in West Punjab and the Eastern Grey canal, which irrigated part of Bahawalpur State. In the Punjab Boundary Award Radcliffe said:

“The fixing of a boundary in this area was further complicated by existing of canal systems so vital to the life of the Punjab but develop only under one conception of a single administration—I think I am entitled to assume with confidence that any agreement—as to sharing of water from the canals or otherwise will be respected by whatever Government hereafter assumes jurisdiction over the headworks concerned.”1

The Radcliffe Award had placed the control of headworks, vital for the life of agriculture in Pakistan, in the lands of India. When the representatives of Pakistan, in the Punjab Boundary Commission, brought this point to the fore, the Indian Government assured that she would not create any trouble for Pakistan with regard to the supply of waters and assured that the pre-partition share of water would not be varied. The representative of the West Punjab Government felt assured by the repeated declarations of their counterparts of the East Punjab that there was absolutely no question of any change in the pre-partition arrangement for canal waters. The representative of East Punjab also gave the same undertaking before the Arbitral Tribunal when the disputed question of the evaluation of canal system came up for a hearing. The events, however, indicated that the East Punjab government was planning a fatal blow against Pakistan and was merely satisfying and assuring the West Punjab Government to feel assured and sleep over it. They were, in fact, waiting for the day, March 31, 1948, when the Arbitral Tribunal ceased to exist. Chaudhry Muhammad Ali’s comments on the situation are, indeed, telling and deep. He said:

“On the side of the East Punjab there was Machiavellian duplicity. On the part of West Punjab there was neglect of duty. Complacenency and lack of common prudence-which had disastrous consequences for Pakistan”.2

But as soon as the Arbitral Tribunal was abolished all promises made before it by the Indian representative that “there would be no interference whatsoever with the then existing flow of water” were backed out. The Arbitral Tribunal was abolished on April 1, 1948. The next day, the East Punjab government cut off water in every canal system and the Bahawalpur, state distributory. On this action, Sir Patrick Spens, the Chairman of the Arbitral Tribunal said before the joint meeting of the East India Association and the Overseas League on February 23, 1955 in London:
“—I am going to say nothing without it except that I was very much upset that almost within a day or two there was a grave interference with the flow of water on the basis of which our awards had been made.”3

For five weeks 1.5 million acres of land in Pakistan received no water. “There was acute distress which, with every day that passed, became more and more intolerable. In large areas where subsoil water is brackish there was no drinking water. Millions of people faced the ruin of their crops, the loss of their herds, and eventual starvation due to lack of water”.4 This action shook Pakistan’s trust in good intentions of India. There was severe criticism in Pakistan against this antagonistic act of Indian Government, and it was not only regarded as a violation of the commitments made at the time of partition, but also contrary to international law and morality.

This dangerous Indian move of far reaching consequences made Pakistan insecure about her future irrigation plans. Pakistan’s position was like a trapped bird. Her helpless condition was very appropriately described by David E. Lilienthal, former Chairman of the Tennessee Valley Authority, who visited the subcontinent in 1951. He said:

“No army with bombs and shells, could devastate a land so thoroughly as Pakistan could be devastated by the simple expedient of permanently shutting off the sources of water that kept fields and people of Pakistan alive”.5

Pakistan tried to contest her case on the basis of international law governing riparian rights. The Government of Pakistan claimed that under the established and recognized rules of international law an upper riparian cannot deny water to a lower riparian. The East Punjab Government now contended that Pakistan had no right to any water and demanded seignior age charges as a condition for reopening the canals. Trapped in distressful situation and in view of the fastly approaching summer of 1948, the Government of Pakistan was compelled to sign reluctantly an interim agreement with India by depositing in escrow certain amount specified by the latter, and the supply of water was restored. Thus, the supply of water was restored to the Dipalpur canal and main branches of Bari Doab canals, but water was still withheld from Bahawalpur state distributory and nine small distributaries of the central Bari Doab system.

Eventually, considerable areas of Bahawalpur state reverted to desert. The basic issue of the Indus water dispute was not settled by this agreement; the representatives of the two countries met on several occasions but failed to reach an agreement due to Indian obduracy.
Later, during the dame season, the Indian Government again threatened to cut off water supply to Pakistan and insisted that the interim agreement be made permanent. Pakistan refused to accept it, because acceptance of Indian demand would have been permanent renunciation of Pakistan’s legal rights. Prime Minister Liaqat Ali Khan proposed the whole matter be referred to the International Court of Justice, but Pandit Nehru turned down the proposal on the ground that any reference to an outside authority would be unbecoming ‘to proud and self-respecting nations’. On these delaying tactics of Indian Government, Chaudhry Muhammad Ali’s comments. “It was clear that Indians’ purpose was to prolong negotiations until the Bhakra Dam, the Rajastan Canal, and other engineering works were completed, the effect of which would be to deprive Pakistan of vital water supplies.”6 The deadlock over the sharing of Indus waters continued embittering the already strained relations between the two countries.

Legal Position

According to international law in practice and recognized by the world community, Pakistan was not only entitled to the supplies of waters which she used to get before the Partition, but she had also the right to share equitably the increased use of water made possible through latest engineering devices. But India insisted that she had every right to control the waters which passed through her territories. India also ignored the convention about international rivers like the Danube and the Nile. She was not willing to allow Pakistan equitable share of waters of Indus basin, and that is why she had always been avoiding to refer the matter to the International Court of Justice, knowing that her stand was absolutely invalid.
On the suggestions of Eugene R. Black, a technical group of engineers from India, Pakistan and the World Bank studied the problem, under the directions of General Raymond A. Wheeler, for two years to prepare a comprehensive plan for the utilization of waters of the Indus Basin System. At the end of this exercise of a technical group of engineers, a temporary agreement was signed in 1952 under which each side undertook not to disturb the supply of waters as long as the negotiations under the auspicious of the World Bank continued. The mediatory efforts of the World Bank were still going on when India reduced the supply of waters to Pakistan in 1952 and 1953. This action of the Indian Government did a considerable damage to the crops in Pakistan. It added to the hardships of her people. In view of India’s violation of the agreement of 1952, Pakistan proposed that a commission of the World Bank be set up for maintaining the existing water supplies. But India did not agree to it. The opening of Bhakra Canals in 1954 cautioned Pakistan about India’s designs to draw upon the waters of the Indian basin in such a way as to strangulate Pakistan economically.

In the beginning, the World Bank tried to explore the possibility of working out a plan for the development of water resources on a joint basis. After detailed discussions with both the parties, the Bank realized that no settlement was possible until there was an agreement on the basic issue: “How was the use of the waters until there was an agreement on the basic issue: “How was the use of the waters to be divided between the two countries.” The Bank therefore, started making efforts to find out a solution which would ensure independence of both the parties regarding the operations of waters falling to the share of each. The World Bank therefore, in February 1954, proposed: (i) the waters of eastern rivers – Ravi, Beas and Sutlej – should be reserved for the use of  India; (ii) the waters of the western rivers – Indus, Jhelum and Chenab should be reserved for the use of Pakistan; (iii) there should be a transition period during which Pakistan would construct a system of link canals to transfer water from the western rivers to replace the irrigation uses in Pakistan hitherto met from the eastern rivers; and (iv) India should pay the cost of construction of these replacement link canals to the extent of the benefit derived by her.

The World Bank placed Pakistan in an extremely difficult situation which was intolerable. Pakistan made strong representations to the Bank that the flow supply of western rivers was absolutely inadequate to replace her existing uses of water from eastern rivers. The difficulty was that most of the waters in western rivers, which were allotted to Pakistan as discharged during the months of June to August. For the remaining period of the year the western rivers did not have enough water. A consulting engineer, R.J. Topon of Denver, Colorado, undertook an independent engineering appraisal of the World Bank plan. Tipon revealed that the Bank proposal did not meet the standard of fairness required under International law and it failed to apportion equitably the waters of the Indus system. It also went contrary to the principle of using water resources in such a manner as to promote development most effectively. Tipon’s studies revealed that Pakistan would be very adversely affected by Bank’s plan and certain areas which belonged to it would be deprived of water supplies to curtail seriously her future development potential. Later, Eugene Black himself pointed out that the Bank plan would have leave much of Pakistan’s irrigation system without water. The Bank, therefore, felt the need of an adjustment in the proposal of February 1954 to assure Pakistan timely water sufficient to eliminate shortage. “In short, after two years of arguments and investigations, the Bank realized that the loss of water from the eastern rivers could not be made good by the flow supply of the western rivers”.7 Thus, the World Bank rectified the mistaken assumption on which the original plan was based.

It took a period of another four years of intensive discussion between the delegation of the two countries and a group of technical experts of the IBRD under the guidance of Sir William Illif, its Vice-President. It was indeed a complex proposition because besides difference of approach between the two countries there were colossal financial problems. It was quite obvious that the cost of construction, required for a settlement, as proposed by the World Bank was far beyond the financial reach of India and Pakistan. The final agreement was made possible by the steadfast perseverance and “economic diplomacy” (to use Eugene Black’s own phrases, and through the friendly and financial assistance of the United States, the United Kingdom, Canada, Australia, New Zealand and the Western Germany. The Indus Water Treaty was at last signed in Karachi on 19 September 1960 by Ayub Khan the President of Pakistan, Pandit Nehru, the Prime Minister of India and Mr. Illif, the World Bank Vice-President.

Indus Waters Treaty

The Indus Waters Treaty defined and fixed the rights and obligations of both the countries about the use of waters of the rivers. The treaty came into force with retrospective effect from April 1960. According to the provisions of the Indus Water Treaty, the three eastern rivers, Sutlej, Beas and Ravi were exclusively awarded to India. In the interim period up-to 1970, for ten years, India continued to provide a specific quantity of waters to Pakistan.
The division of waters provided for in the treaty necessitated the construction of works to transfer water from the three western rivers to meet the irrigation uses in Pakistan hitherto met by waters from the three eastern rivers. The eventual effect of the transfer was to release the whole flow of three eastern rivers for irrigation development in India. Under the provisions of the Treaty the following works were to be completed in Pakistan.

1. A system of 8 link canals, nearly 800 miles in total length, transferring water from the western rivers to the areas formerly irrigated by the eastern rivers.
2. Two huge earth fill storage dams-Mangla and Tarbela – to provide water-shortage potential to meet the irrigation supplies of canals in Pakistan.
3. Power stations at Mangla Dam with a capacity of more than 300,000 kilowatts;
4. Works to integrate the present canal and river system into new inter-river link canal.
5. Some 2500 tubewells and drainage to overcome water logging and salinity in irrigated areas.

Simultaneously with the signing of the Indus Waters Treaty, an international financial agreement was executed by the representatives of Australia, Canada, West Germany, New Zealand, Pakistan, the United Kingdom, the United States and the International Bank of Reconstruction and Development. Under the agreement an Indus Basin Development Fund of almost 900 million dollars was created to finance the contribution of replacement works for irrigation and other purposes in Pakistan. The fund was to be raised to 640 million dollars to be provided by the participating countries: 174 million dollars to be payable by India and a loan of 80 million dollars by the IBRD to Pakistan.

The Indus water Treaty was called a billion dollars investment in peace by Eugene Black who was the motivating force behind its formulation. It is the greatest irrigation and water power project in the world. The Mangla Dam is one of the largest earth-fill dams ever constructed. It created a lake of more than four million acre feet in extent. It was expected to enrich the lives of 50 million people. Pakistan was assured of a supply of 110 million acre feet of water from the western rivers as against 74.5 million she used to receive from her irrigation works.”8 The treaty also provided immense opportunities to India for the expansion of her irrigation facilities and thus helped to solve her chronic problem about deficiency of food. Commenting on the treaty, President Ayub Khan said: “the solution that we had finally arrived at was not an ideal one, but it was the best we could get under the circumstances.”

The signing of the treaty gave new dimensions to the Kashmir dispute about which Ayub Khan said: “The very fact that Pakistan had to be content with the waters of three western rivers underlined the importance for us of having physical control over the upper reaches of these rivers to secure their maximum utilization for the growing needs of West Pakistan. In my mind, therefore, the solution of the Kashmir issue acquired a new sense of urgency on the conclusion of the Treaty.”10 Giving a statement to the Guardian on the Indus Water Treaty, Pandat Nehru said that the agreement was memorable, not only for the material benefits which it would bring to the cultivators in India and Pakistan, but also for its physiological and emotional effect. He also appreciated the spirit of co-operative endeavour which had shown the way for further collaboration between India and Pakistan. In the words of G.W. Choudhury: “Ayub and Nehru showed statesmanship by removing the major cause for the unhappy relations between the two countries, and they should be congratulated on this constructive move towards peace in the subcontinent”.12 Thus, with the signing of this Treaty, a chapter marked by long and irksome negotiations and suspense came to an end.

Reference:

1. Cf. Chaudhry Muhammad Ali, The Emergence of Pakistan, Lahore, 1992, p. 318.
2. Op.cit., p. 319.
3. Op.cit., p. 320.
4. Op.cit., p. 321.
5. Ibid., p. 325.
6. Op.cit., p. 325.
7. Op.cit., p. 329.
8. G.W. Chaudhry, Pakistan’s Relations with India, 1947-1966, 1969, London, 1969, p. 169.
9. Muhammad Ayub Khan, Friends Not Masters, Lahore, p. 113.
10. Ibid., 113.
11. Guardian, London, September 30, 1960.
12. G.W. Chaudhry, p. 169.