Can India Really Stop Indus Waters Flow to Pakistan?

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

These were the words of David Lilienthal in 1951. He was then Tennessee Valley Authority chairman and played a major role in shaping the Indus Waters Treaty (IWT) of 1960. Seventy-four years after Liliental's remark, Union jal shakti minister C.R.Patel, Union Jal Shakti minister has claimed that he will ensure that “not even drop of water from Indus goes to Pakistan”. Will this lead to what Lillienthal wanted to avoid through the IWT?

The ghastly attack on April 22 at Pahalgam resulted in the death of 26 people at the hands of terrorists. The next day, India announced that the IWT is “in abeyance with immediate effect”. This is not the first time India has threatened to get out of the IWT; the same threat was made in 2016, when Pakistan-backed terrorists killed 18 solders in the Uri sector. Prime Minister Narendra Modi had said then that “blood and water can't flow together at the same time", referring to the IWT.

As a hydrologist who has studied several water disputes the world over, I would like to examine the IWT in the context of India’s threat to leave the agreement and even stop the water flowing downstream.

The IWT and its main tenets

It is difficult to go in to the long process between 1947 to 1960 which culminated in the treaty. The treaty is the result of several ad-hoc agreements and back-door negotiations by the World Bank for six years.

The treaty was signed on September 19, 1961 in Karachi by Jawaharlal Nehru on behalf of India and then military dictator Ayub Khan on behalf of of Pakistan as plenipotentiaries – a legal term for the highest authority to sign the agreements. The World Bank too signed the treaty as a guarantee.

The treaty has about 85 pages with a preamble, 12 articles, annexures from A to H and several appendixes. It covers minute details. The treaty come to into effect in 1962 after ratification by both parties. The preamble states that “being equally desirous of attaining the most complete and satisfactory utilization of the waters of the Indus system of rivers” and “in a spirit of goodwill and friendship, the rights and obligations of each in relation to the other concerning the use of these waters”. By and large, the IWT has been regarded as a landmark and the most versatile treaty of its kind in the international water policy arena. Little wonder that it stood the test of time, despite several political and military tensions between the two countries

There are three important aspects of the treaty

1. Allocation of rivers

This is not typical water-sharing treaty. The Indus river has five tributaries – Sutlej, Beas, Ravi, Jhelum and Chenab. All these five rivers constitute the entire river system. In Articles II and III of the IWT, the eastern rivers – Sutlej, Beas and Ravi – are allocated to India, while the western rivers – Indus, Jhelum and Chenab – are allocated to Pakistan. India did secure the rights to use the western rivers for non-consumptive use, which is mainly producing hydroelectricity and entails the construction of dams and reservoirs.

Also read: Has India’s Suspension of Indus Waters Treaty Caused a New Faultline in South Asia?

2. The responsibility of implementing the treaty

This responsibility was articulated in Article VIII, with the institutional mechanism of creating a Permanent Indus Commission (PIC). Effectively, the two members – each appointed by one country – are vested with the responsibility of implementing, communicating and monitoring all aspects related to the treaty. The commission has met 118 times, and the last meeting was in New Delhi on May 31, 2022. During this meeting ,“Both sides reiterated their commitment to implement the Indus Waters Treaty in its true spirit.” The 119th scheduled meeting was cancelled, since India wanted to renegotiate the IWT.

3. Recourse mechanisms stipulated in the treaty

There is no explicit provision in the IWT for either party to exit or abrogate the treaty. However, a country can always get out of any treaty or agreement.  The current situation, with the minister saying he will ensure that the water flow to Pakistan is stopped, comes under Article IX on settlement of differences and disputes. Article IX Section 2 states that “any question which arises between the Parties concerning the interpretation or application of this Treaty or the existence of any fact which, if established, might constitute a breach of this Treaty shall first be examined by the Commission”.

There is a detailed provision for a neutral expert to resolve the issue, which is stipulated in Article IX Annexure F. Previously in 2005, when India wanted to build the Baglihar dam on the Chenab, Pakistan had objected. The dispute was resolved based on Swiss expert Raymond Lafitte's input. Both countries agreed to the experts suggestions and the issue was resolved amicably.

The present situation is different. India not only wants to get out of the treaty but wants to stop the flow of water. Pakistan will ask the World Bank to constitute a court of arbitration as specified under Annexure G of Article IX (5). Even if India is not willing to participate, the World Bank, as the guarantor of the treaty, has an obligation to establish a court of arbitration. Before the final award by the court of arbitration, there is provision for interim measures: “Either Party may request the Court at its first meeting to lay down, pending its award, such interim measures as, in the opinion of that Party, are necessary to safeguard its interests under the Treaty with respect to the matter in dispute, or to avoid prejudice to the final solution or aggravation or extension of the dispute.”

Most likely Pakistan will ask for such an interim measure, and it will be difficult for a court of arbitration to refuse. India could choose to ignore the interim order and the entire arbitration process. But doing so will have other consequences.

Also read: Why Putting Indus Waters Treaty ‘in Abeyance’ Has Been Counterproductive For India

The consequences

Getting out of the IWT and using water flow to force Pakistan to stop supporting terrorism may not be feasible in the current engineering and infrastructure situation. Even if India starts the process of building storage units to divert water, it could take decades and considerable financial resources to make a significant difference to the downstream flow. Empty threats to stop water flow might damage India's credibility.

Exiting previously agreed upon external treaties might also lead to some domestic consequences. Some Indian upper riparian states, which do not want to abide by the river water tribunal awards, could be emboldened to take extreme steps to suit their political interests.

Dr Biksham Gujja is an international policy expert.

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