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

The Indus Waters Treaty signed by the World Bank, India and Pakistan in 1960 is often held up as one of the great successes of international cooperation. Despite two full scale wars in 1965 and 1971, as well as lesser conflicts such as Kargil, the treaty has remained in force. The success, though, is often misunderstood because most people know little about the details of the treaty. The bare fact of the matter is that there is no opt-out clause in this agreement. The treaty can be changed, and a new treaty can be negotiated with the consensus of both, India and Pakistan. However, no one party has the authority to change or stop the treaty on its own. 

The government of India’s decision to put the “treaty in abeyance”, then, lacks any legal standing because there is no clause that gives either of the countries the power to do so. 

Were Pakistan to challenge the issue in the International Court of Justice, India would lose – Pakistan has hinted at this by saying that it was putting the Simla Agreement of 1972, which mandates that India and Pakistan resolve issues bilaterally or by agreement through other means, into abeyance. 

This is not the first time that the Modi regime has tried to use legally dubious means vis-à-vis the treaty. In August 2016, Pakistan had taken back its request, under the treaty, for a neutral expert to be appointed to deal with a difference between India and Pakistan on the Kishenganga-Ratle project. Instead, it asked for a Court of Arbitration (CoA) to resolve the dispute on the same. 

Also read: Explained: What Does India Suspending the Indus Waters Treaty Mean?

In the language of the treaty, both dispute vs difference and neutral expert vs CoA invoke higher levels of challenge. It is unclear why the government of Pakistan took such a step, but before the World Bank could appoint a CoA, the Indian government asked it to appoint a neutral expert on the same dispute, in October 2016. 

Since the treaty prohibits the appointment of a CoA on an issue if a neutral expert is examining the subject, India then argued it was illegal for Pakistan to ask for a CoA or the World Bank to appoint one until after the neutral expert was done with the subject. Unfortunately for the Indian government, the issue was sequencing and there is nothing in the treaty that forbids the appointing of a CoA and a neutral expert on the same issue, especially if the country that had made the request for a CoA had submitted its request first.

 In fact, the bare text of the treaty does not allow the World Bank the freedom to refuse the request of a neutral expert or a CoA unless a neutral expert has already been appointed to look at the issue.

The World Bank tried for years to get the governments of India or Pakistan to figure a way out, and then when it became impossible for it to continue, it simply announced – much to the shock and horror of the Modi regime – that it would be appointing both, a CoA and a neutral expert, in October 2022.

Since then, the Indian government has railed against this decision saying it is not legal, and has received the added humiliation of having all its arguments rejected. It is taking part in the neutral expert process and boycotting the CoA one.

This begs the question, why has the Indian government now chosen to announce that it will violate the treaty?

Is India violating the Indus Waters Treaty?

It could be argued that treaties are not really enforceable, and national security interests should outweigh treaty considerations. After all, nobody is going to come to Islamabad or New Delhi and say, “Tut, tut, you naughty children, do what you promised.” 

In fact, we can see this clearly with the Simla Agreement, which says that both countries will respect the security and territorial integrity of each other, and resolve everything peaceably. The number of incidents along the Line of Control, much less the attacks by militants, are innumerable. 

That said, one of the reasons that the Indus Waters Treaty has continued is how easy it is to continue with it. India received huge investments for its water infrastructure in Punjab – turning it into the breadbasket of India – and in return all it had to promise is to allow the relatively free flow of water on the western rivers flowing into Pakistan – in other words, it did not have to build large reservoirs for dams on the rivers or divert their flows to any great degree. 

The only people this really affected were the residents of Jammu & Kashmir on the Indian side. Lack of large reservoirs means that when water flow is low during the winter months, there is less ability to maintain electricity output in the dams in Kashmir, so Kashmiris suffer from limited electricity in the winter months when they need it the most. 

Of course, the one iron truth of India and Pakistan is that no government has ever cared about the lives, living conditions or livelihoods of Kashmiris, so this was hardly a sacrifice. 

But what national security interests are likely to be fulfilled by violating the treaty? First of all, India can only influence a miniscule amount of the water flow into Pakistan right now, most of it is from glacial melt, snow melt, and monsoon rains anyway. To do more, India would have to spend thousands of crores to build large storage dams over a period of decades, for no set purpose except to threaten Pakistan. For that kind of money, India could easily overhaul its military capabilities instead, and in much quicker time. 

More importantly, the restriction of water to another country is a war crime, and if India starts building the infrastructure to commit war crimes it paints itself as a villain in a region where it is fighting a desperate rearguard action against Chinese domination. As a downstream riparian to China, it will hand all the cards to its northern neighbour if China decides it will build such dams too, something it has both the financial wherewithal to do, and the engineering capability to do so much quicker than India. 

The worst part of it is that India pushes Pakistan very firmly into the embrace of militant groups such as Lashkar-e-Tayyaba (LeT) and extremists in the Pakistani security establishment. 

Between 2010-15, I oversaw a number of water conferences between Indian and Pakistani experts, including a number of Kashmiris. These were greenlit by New Delhi and Islamabad because LeT’s founder, Hafiz Saeed, was going around trying to raise support by focussing on the Indus Waters and saying things like either water would flow or blood would flow. Sadly, in 2016, Modi said much the same when his regime started targeting the Indus Waters Treaty, and now, after the statement of it being put in “abeyance,” Bilawal Bhutto, one of Pakistan’s key mainstream leaders, has said something of the same. 

Forcing mainstream political parties in Pakistan to adopt the rhetoric of militant groups is not in India’s security interests. This should not require much thought. Somehow, though, the sustained focus of the Modi regime to somehow attack the Indus Waters Treaty to pressurise Pakistan has resulted in the exact opposite – the pressure has led to greater hostility and a wider constituency for it than one that existed earlier.   

None of this is to say that the Indus Waters Treaty was, or is, perfect. It was the sub-par version that India and Pakistan signed in 1960. Instead of a joint management of the Indus River Basin as originally envisaged, the treaty chose divorce, a last step of Partition. It ignored groundwater, ignored demographic changes (larger populations), quality of water (pollution), and climate change was not even an issue at that time.

 The benefit India received for funding the massive water infrastructure in Punjab is long past, and what both India and Pakistan need is a massive investment in much more resilient and sustainable water infrastructure along the Indus River Basin – and for India, also along the Ganga, Brahmaputra, and multiple other rivers. Such investment will not come into a region primed for war between nuclear armed neighbours, with one hinting at building infrastructure for war crimes against another, and politicians across the region adopting the language of militant groups that traffic in terrorism. 

The last decade of hostile action and legal chicanery against the Indus Waters Treaty by the Modi administration has not helped this come about, in fact it has resulted in a series of public humiliations and been massively counterproductive. The latest actions continue along a pathway of failure. It would be wise to find an off ramp.

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