Revisiting Indus Waters Treaty 1960 School of Civil & Environmental Engineering NUST Institute of Civil Engineering 18 October 2011 International Union for Conservation of Nature, Pakistan
Story begins Government of India Act 1935 water as a provincial jurisdiction. 1941 Indus Commission to resolve dispute between Punjab and Sindh. 1947 partition of Indian Subcontinent. 6 rivers flowing to Pakistan and 2 major head works in Indian territory. Standstill Agreement (18 Dec 1947) pre partition allocation of water in the Indus Basin irrigation system would be maintained [Rights of Prior Appropriation]. India shuts canals entering Pakistan on 1 Apr 1948 [Absolute territorial sovereignty]. Inter Dominion Agreement (4 May 1948) Pakistan to pay for water from Eastern Rivers. Pakistan intended to go to ICJ but India didn t agree. India also withdraws from Barcelona Accord to avoid compulsion for cooperation. 2
The World Bank saga 1951 David Lilienthal, Ex Chairman, Tennessee Valley Authority visits India and Pakistan 1951 David Black, WB President gets interested 1952 Working Party (comprising engineers) to discuss options 1960 Indus Basin Development Fund Agreement $ 893.5 m; mainly contributed by UK and US Indus Waters Treaty signed on 19 Sep 1960, effective 1 Apr 1960; ratified in Jan 1961 WB one of the signatories 3
Indus Rivers System/Basin Irrigates 20 m acres Eastern Rivers 33 MAF Western Rivers 136.1 MAF 4
Indus Waters Treaty 1960 Article I Article II Article III Article IV Article V Article VI Article VII Article VIII Article IX Article X Article XI Article XII Annexure A Annexure B Annexure C Annexure D Annexure E Annexure F Annexure G Annexure H 5 Preamble Definitions Provisions regarding Eastern Rivers Provisions regarding Western Rivers Provisions regarding Eastern Rivers and Western Rivers Financial Provisions Exchange of Data Future Co Operation Permanent Indus Commission Settlement of Differences and Disputes Emergency Provisions General Provisions Final Provisions Exchange of Notes between Government of India and Government of Pakistan Agricultural Use by Pakistan from certain Tributaries of the Ravi Agricultural Use by India from the Western Rivers Generation of Hydro Electric Power by India on the Western Rivers Storage of Waters by India on the Western Rivers Neutral Expert Court of Arbitration Transitional Arrangements
Scope Legal reach Eastern Rivers Sutlej, Beas and Ravi Western Rivers Indus, Jhelum and Chenab All tributaries and lakes contributing to the Rivers Parties (Preamble) Government of India Government of Pakistan Definitions (Art I) Article, Annexure, Tributary, Indus, Jhelum, Chenab, Sutlej, Beas, Ravi, Main, Eastern Rivers, Western Rivers, the Rivers, Connecting Lake, Agricultural Use, Domestic Use, Non Consumptive Use, Transition Period, Bank, Commissioners, interference with the waters, Effective Date. 6
Substantive Rules Article II: Provisions regarding Eastern Rivers Unrestricted use by India Pakistan allowed for non consumptive and domestic use of tributaries before finally entering Pakistan Pakistan allowed for non consumptive, domestic and limited agricultural use (Annex B) Unrestricted use of leftover river flows by Pakistan but no claim or rights Transition Period of 10 years (Annexure H) to allow unrestricted use by Pakistan on historical trends Article III: Provisions regarding Western Rivers Unrestricted use by Pakistan India allowed for non consumptive, domestic, limited agricultural use (Annex C), and hydropower generation (Annex D) Limited storage allowed to India (Annex E) 1.25, 1.6 & 0.75 MAF for general, power & floods Article IV: Provisions regarding Eastern Rivers and Western Rivers No harm principle Prior information Pollution control 7
Procedural Rules Article V: Financial Provisions India to pay 62.06 m as replacement to Eastern Rivers waters in 10 yearly instalments during Transition Period to be paid to IBDF India to receive compensation from IBDF if Transition Period extended on request of Pakistan around 3.2 m annually Article VI: Exchange of Data Monthly exchange of daily data on flow, extractions, withdrawals, escapages and deliveries. Article VII: Future Co Operation Hydrological and meteorological stations on other party s expense Article X: Emergency Provisions Good faith principle Article XI: General Provisions Exclusiveness of the Treaty to Indus waters Article XII: Final Provisions Treaty can be modified by mutual consent through a ratified treaty. Treaty can be terminated by mutual consent only through a ratified treaty. 8
Institutional Mechanisms Article VIII: Permanent Indus Commission Consists of Commissioners of Indus Waters, to be appointed by both parties. Both Commissioners as representatives of the governments, authorised to take decisions, to be assisted by 2 advisors. They have privileges and immunities under Convention on the Privileges and Immunities of the United Nations, 1946. Minimum one meeting, alternatively in India and Pakistan, every year. Annual Report of the Commission, to be submitted by 30 June every year. 9
Dispute Resolution Article IX: Settlement of Differences and Disputes Commission to decide the course of settlement. In case of disagreement between the Commissioners, issue to be referred to a Neutral Expert, to be appointed by WB (Annex F). If the Neutral Expert declares it a dispute, it can be resolved by Negotiators appointed and mutually agreed by both Parties. Court of Arbitration (Annex G), comprising of Two arbitrators to be appointed by both Parties Three arbitrators/umpires, including: Chairman of the Court of Arbitration who may, but need not, be engineers or lawyers. Highly qualified engineer. Person well versed in international law. Standing Panel of Umpires having 4 person in each of the above categories Indus Water Treaty to be the applicable law, but also: International conventions establishing rules which are expressly recognized by the Parties. Customary international law. 10
New realities Climatic variability and uncertainty hydrological extremes. Environmental flows requirements IWT does not mention environment or ecology. Rapidly increasingly populations from 485 million in 1961 to 1,390 million in 2011 and increased water needs. Groundwater tables falling rapidly 3 feet annually. Pakistan needs more reservoirs for essential storage, especially for winter (80% reduced flow). Construction of dams by India Khapala Dam on Shyok River and Wullar Barrage on Jhelum River. Baglihar Dam on Chenab Kishanganga Jhelum water diversion scheme by India. Ten more hydro projects on the western rivers, in addition to existing 20+. Technological advancements making it possible to build dams that were not foreseen when the deal was signed. 11
A critical look Shortcomings A water apportionment, not water sharing treaty. Fixes India s share from Western Rivers (3.6 MAF) while flows are variable No clarity on how to manage during dry years. No mention of transboundary impact assessment Opportunities for cooperation Joint research Joint watershed management Joint water development and energy generation Confidence building through Track III approach Acceptance for international conventions and customary international law 12
Way forward for Pakistan Termination of IWT and signing a new treaty Pakistan may not be in a position of strength Negotiations would take a long time due to diplomatic sensitivities between the two countries No transitional/interim arrangements available to Pakistan Building upon the existing treaty India may not agree UNWC can help, but both Countries are not signatories Treaty can provide basis for cooperation efforts Commissioner to be a diplomat or lawyer, rather than an engineer So what do you suggest? 13
thanks a lot www.iucn.org/pakistan hamid.sarfraz@iucn.org International Union for Conservation of Nature, Pakistan 14