Chapter Four

Water Dispute Between India And Pakistan

Introduction
The Indus River and its tributaries – Jhelum, Chenab, Sutlej, Ravi and Beas -
are major sources for the irrigation and hydropower of India and Pakistan. After the
partition, water dispute started between the two countries. It resolved through the
Indus Treaty. The ‗Indus Water Treaty- 1960‘ is considered as a successful instance
of conflict-resolution between India and Pakistan. The treaty has remained in place
despite the three wars between India and Pakistan. It even survived the serious
deterioration in the relations between the two countries following Kargil. There is
dissatisfaction about the Treaty in India and Pakistan. After the terrorist
attack on Uri Army base, Indians demanded the abrogation of the Indus
Treaty. Though the people of both the countries criticize the Treaty, still it is
relevant.
In this chapter, hydrogeoraphy and hydropolitics in the Indus basin is
discussed. It tried to find how the various projects of both nations are responsible to
increase tension between the two nations. It is explained, after the Partition, how
water dispute took place and efforts were made for the peaceful resolution. Dispute
over Indian projects, evaluation of the Treaty, causes of the opposition to the Treaty,
factors behind the survival of the Treaty are explained in this Chapter.

4.1 Indus Basin

The Indus River basin a home for more than 200 million people in India and
Pakistan. The Indus Valley civilization arose 5000 years ago.1 India and the Indus are
like inseparable twins. They are culturally united. The name India is derived from the
River Indus. ‗Rigveda‘ called it ‗Sindhu‘. While mountain passes like the Khyber
formed the geographical frontier of the subcontinent, it is considered the river as the
real protector guarding its frontiers. One of the several literal meanings of the Sindhu
is actually this. Neighbouring tribesmen, speaking Iranian dialects, pronounced the ‗s‘
as an ‗h‘, and as ‗h‘s were dropped for the ease of pronunciation, Hindu became Indu.
The river became Indus and the people were Indoi. Subsequently, were born the Indus
and its cognates- India, Hund, Hindu and the Indies.2

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 ―As Egypt has been described as a gift of the Nile, the bustling ancient
cultures of northwestern South Asia and present-day Pakistan and northwestern India
can be called a gift of the Indus.‖ 3 Four rivers of the subcontinent- Sutlej,
Brahmaputra, Ganges and the Indus flow from the watershed of Mount Kailash
(called Kangri Rimpoche, which is a pilgrimage centre of four faiths: Bon, Buddhism,
Jainism and Hinduism) in Tibet. The Indus started its journey from Tibet via Ladakh
(Kashmir), Baltistan, Gilgit, Swat Valley, North-West Frontier Province (Pakistan),
Saraiki landmass (Northern and Southern Punjab), Sindh before joining the Arabian
Sea. It traversed a distance of 1,988 miles (3200 km), with the total drainage area
exceeding 450,000 square miles, with annual flow of 207 million cubic kilometers. 4
The Indus River Basin

Map 4.1 Source: https://commons.wikimedia.org/wiki/File:Indus_river.svg

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 The Indus River with its basin involves four countries. The Indus proper and
the Sutlej rise in Tibet. Afghanistan contributes the Kabul River (one of whose main
tributaries, the Kunar, rises in Pakistan) as well as some smaller mountain streams.
The Beas, the Ravi, and the Chenab rise in India. The Jhelum rises in Kashmir.5 The
Indus Basin is largely spread in India and Pakistan. In Pakistan, the alluvial plains of
the Indus Basin cover approximately 25 per cent of the land area of Pakistan, with
Punjab and Sindh being the most agriculturally important provinces. In India, the
basin includes 9.8 per cent of the total geographical area of the country. The upper
part of the basin includes the mountain states of Jammu and Kashmir and Himachal
Pradesh, while the lower part of the basin includes the plain area of Punjab and
Haryana, the semi-arid Rajasthan and the union territory of Chandigarh. 6
With the system of irrigation developed over the last hundred years, the rivers
support a population of about 40 million people in Pakistan and about 10 million in
India—approximately one-tenth of the combined population of the two countries. The
area of irrigated land is about 30 million acres (before 1960). This is the largest
irrigation system in the world; it feeds a larger area than is irrigated in Egypt and the
Sudan by the Nile. The Indus, with its five main tributary rivers, comprises one of the
great river systems of the world. There is enough water to submerge, to a depth of one
foot, the whole area of the State of Texas, or the whole area of France. Its annual flow
is twice that of the Nile and three times that of the Tigris and Euphrates combined, 7
Table 4.1 The Indus Drainage System
River Source Length Area drained Volume of
in km (sq km) average annual
flow (in MCM)
Indus Near Mansarovar 2,880(709 1,178,440 1,10,450 at
Lake in India) (321,290 in Kalabagh in
India) Pak
Jhelum Verinag 724 34,775 up to 27,890 at
Indo-Pak border Mangla
Chenab Bara Lacha Pass 1,180 26,155 up to 29,000at
Indo-Pak border Mangla
Ravi Near Rohtang Pass 725 14,442 (5,957 in 8,000 at
India) Madhopur
Beas Near Rohtang Pass 460 20,303 15,800 at
Mandi
Satluj Mansarovar-Rakas 1,450(1,050 25,900 16,600 at
Lake in India) Rupnagar
Source: Khullar, D.R. (2008). India-A Comprehensive Geography. Ludhiana: Kalyani Pub. p. 81

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ten times that of the Colorado River, thirty times of the lower Rio Grande River. The
mean average flow of the rivers of the Indus Basin, is 1,68,000,000 (170 million acre-
feet) acre feet 36,500,000 acres are provided with irrigation from these rivers—
31,000,000 in Pakistan (84.9%) and 5,900,000 in India (15.1 %).8

4.2 Projects
4.2.1 Projects in India:
The Cholas rule constructed impressive irrigation systems in the delta regions
of South India. Through their grandiose canal building projects, the British rulers
claimed to be ordering and controlling the supply of water in new and more rational
ways. Dams were constructed on the major rivers from around the 2nd CE onwards,
channeling water to extensive paddy growing tracts. Later, in northern India, the
Tughlaks and Mughals constructed canal with similar intentions. Bu,t these works
were neither very extensive nor as important for agriculture as the earlier South Indian
works. The canal building increased in the Ganga-Jamuna Doab region and in the
Indus Valley in the 18th century that was associated with local rulers. These systems
often relied on controlled inundation, involving the flooding of land, which spread silt
over the fields and saturated the soil with water, allowing for the production of rich
crops. This was a feature of the South Indian irrigation system. At a local-level,
zamindars or groups of land controlling peasants constructed bunds so as to create
irrigation reservoirs, or ‗tanks‘, with channels and canal. 9
By the 1830s and 1840s, with the collapse of irrigation systems in many parts
of India, the colonial rulers were able to depict indigenous cultivators as being trapped
by their environment and climate in a state of ‗backwardness‘ that was held to be
‗traditional‘ and centuries old. The British believed that they could transcend these
limitations through their superior science and technology. Nature could be mastered,
transformed and made more productive, allowing Indian agrarian products to be sold
competitively in the world market. The British disliked the so-called ‗uncontrolled‘
systems of irrigation. At home, the British had developed by the late 18th century, a
sophisticated knowledge of canal building. Sir Arthur Cotton‘s canal-building project
in South India is an example. Canal development encouraged the production of
commercial crops. There were also some adverse impacts of canal system, such as
waterlogging, salination, soil exhaustion and malaria. 10

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 The greatest of all the British canal projects was the construction of a vast
network of canals in the Punjab. This was one of the greatest engineering projects
anywhere in the world at that time. The first major project dated to 1886-88, and
construction continued at full pace during the late 19th and early 20th centuries, until
the economic depression of the 1930s effectively brought a halt to major
development. The Punjab canal colonies were being established at a time when the
Indian nationalist movement was gathering pace. The British rulers claimed that they
enjoyed the support of the Indian peasantry, and particular that class of ‗yeoman‘
peasants who had benefited from British rule. The canal land was allocated to
maintain loyalty. As a project designed to consolidate the political power of the
colonial state in India. The development of irrigation cannot be considered to have
been a great success.11
After the partition, India argued that water was needed for the development of
its areas of the former Punjab and the adjacent princely states which had been
neglected in the Empire days. India has included in it for irrigation purposes areas
outside the Indus watershed, capable of consuming the entire flow of the three eastern
rivers. 12 The Indian government developed various project for the irrigation of
Punjab, Haryana, and Rajasthan states The Pong Dam on the Beas River, the Indira
Gandhi Canal from the Harike Barrage on the Ravi, the Beas-Sutluj Link Canal, and
the Bhakra-Nangal Dam project on the Sutluj are major projects. 13
4.2.2 Projects in Pakistan:
Irrigation from these rivers started by the Mughals was developed during the
British period. These rivers are linked to each other by the canals. A main link canal
can draw water from another. Before the partition, this irrigation system was treated
as a whole. In 1947 when the line dividing the former Province of Punjab was drawn,
it cut right across this system. India was given control over the headworks of the
canals. The Ferozepur weir on the Sutlej river, from which the Dipalpur canal takes its
start is on the border in Indian territory. The Sulemanki weir in the Montgomery
district has its important eastern training works in the Indian district of Ferozepur. The
headworks of the Upper Bari Doab canal which irrigates both Indian and Pakistani
soil are with India at Madhupur on the river Ravi. 14
―At partition in 1947, the international boundary between India and West
Pakistan cut the irrigation system of Bari Doab and the Sutlej Valley project,
originally designed as one scheme, into two parts. The headworks are in India while
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the canals ran through Pakistan. It resulted in disruption in the water supply in some
parts of Pakistan‖. This lead to water dispute between the two neighbours. India has
been using on average 33 MAF of water from the eastern rivers and has built several
dams and barrages to supply water to Punjab and neighbouring states and has been
withdrawing waters from the western rivers for irrigation. 15
West Punjab started construction of the 100-mile long Bombanwala-Ravi-
Bedian-Dipalpur (BRBD) Link Canal in 1948 for the diversion of Ravi flows to the
Sutlej in anticipation of future stoppages by East Punjab. The BRBD Link Canal had
shown that it was technically feasible to divert the flow of the Chenab and the Ravi to
make up for the loss of the Sutlej-Beas waters to India. The link canals were built
across the Doabas of Pakistani Punjab, bringing water from the Indus to the Jhelum,
from the Jhelum to the Chenab, and the Chenab to the eastern rivers. 16
Nineteen headworks were in the Indus basin system, of which, in 1948, four
were in the Indian Union and fifteen in Pakistan. They were five on the Indus at
Kalabagh, Taunsa, Guddu, Sukkur and Kotri; two on the Jhelum at Mangla and
Rasool; four on the Chenab at Marala, Khanki, Trimmu and Punjnad; two on the Ravi
at Balloki and Sidnai and last two on the Sutlej at Suleimanki and Islam. Moreover,
out of thirteen canals, ten came to Pakistan, two went to the Indian Union and one, the
Upper Bari Doab, was divided between the two States.17
The proposed Kalabagh Dam on the Indus River in Pakistan became
controversial. It is under consideration since about 1953. The multipurpose project
Kalabagh dam is a located roughly 100 miles southwest of Islamabad. It was
announced in 1984. Planning for construction began almost immediately, and
completion was projected for 1994. But, the project faced opposition from the minor-
ity provinces and was soon stalled. In 1998, then-Prime Minister Nawaz Sharif
announced that construction would finally begin. His ouster from power soon
thereafter again sidelined the project and reopened the issue. After nearly eight years
in power, President/General Pervez Musharraf attempted to mobilize national support
behind a plan to finish construction of three dams—Kalabagh, Bhasha, Akhori, and
Skardu/Katzara— by 2016. Each dam has ardent advocates along with equally ardent
opponents. As of April 2007, the Kalabagh project is where it has been for over two
decades: locked in a fierce dispute involving the central government and all four
provinces. According to the proponents, Kalabagh would add 3600 MW of
hydropower to the national grid and it would vastly increase the country‘s storage
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capacity. It would provide water for irrigation of four million additional acres.
However, the hostility and suspicion to the project arouses in the co-riparian minority
provinces. The legislative assemblies passed resolutions condemning the project.
Because of the interprovincial hostility, no major water storage project has been
constructed in Pakistan, since the Tarbela Dam was completed in 1976. Pkiatan is
already listed among those nearing acute per capita water scarcity. 18
The Water and Power Development Authority (WAPDA), which is the largest
civilian employer in Pakistan, was set up as a direct consequence of the IWT with
international financial and technical assistance. 19 The major part of Pakistan-leaving
aside inland drainage area of Balochistan and the southern coastal region-is in the
Indus Basin. Pakistan is classified as arid or semi-arid, but the Indus system provides
it with abundant waters. Balochistan depends heavily on groundwater and there are
problems relating to the over-use of that resource; the mountainous and coastal areas
depend on rainwater harvesting.
Jahangir and Ali project a deficit in foodgrain production of 12 million tones
by year 2013 and a shortfall in water availability of 107.8 million acre feet (MAF).
Malik gives a figure of 35 MAF as passing unused to the sea and argues for additional
storage on this ground. In the Indus Basin Pakistan has the largest contiguous
irrigation system in the world. The Basin is characterized by a massive incidence of
waterlogging and salinity. The drainage crisis is said to be ‗entirely man-made‘ and a
‗byproduct of the modern irrigation system.‘ Out of a total of 18 million hectares
(mha) of irrigated land in Pakistan, about 6.22 mha are said to be affected by this
menace. In response to this, the Government of Pakistan launched different Salinity
Control and Reclamation Projects (SCARPs), starting in 1959. These do not seem to
have been very successful. 20

4.3 Hydropolitics
4.3.1 Hydropolitics in India
In 1966, Haryana became a separate State from the Punjab State. In an inter-
state agreement, dividing the waters of the Sutluj, Ravi, and Beas rivers among the
still-undivided Punjab State, Jammu and Kashmir State, and Rajasthan State had
ushered in an era of extensive water development on the Beas and Sutluj rivers. The
victory of the Sikh nationalist Akali Dal Party in the Punjab in 1967 further

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compounded the conflict between the states of Punjab and Haryana. Punjab insisted
on exclusive control of the Beas and Sutluj waters because the two rivers were
exclusively within its territory, while Haryana demanded an apportionment of the
waters based on ―needs and principle of equity‖. 21
In India, Inter-state river water disputes are resolved by the 1956 Act. Article
262 of the constitution of India provided for Parliamentary legislation for the
adjudication of inter-state river water disputes and in pursuance of that provision,
Parliament enacted the Inter-State Water Disputes Act, 1956. Tribunals were set up
under the Act in several cases. The major two disputes are the Ravi-Beas Dispute
(Punjab and Haryana) and the Cauvery Dispute (Karnataka, Tamil Nadu, Kerala and
Pondicherry). In the former case, the adjudication process begun in 1986. 22
In the constitution, the Centre was given the power to develop trans-boundary
waters and States were given the power to develop waters within its boundaries.
Because of the inter-state water sharing disputes, the Inter-State Water Disputes Act
(1956) amended in 2002. It provides a mechanism for the formation of a tribunal to
resolve any conflicts arising from the sharing of water. Such tribunals settled five
disputes on five occasions. There have been no tribunal formed to adjudicate on
disputes in the Ganges Basin, in the Indus, the Ravi and Beas Waters Tribunal formed
in 1986 to officiate between Punjab, Haryana and Rajasthan.
The need for this tribunal arose after the division of Punjab in 1966, when the
Reorganisation Act led to the formation of the state of Haryana and created rulings for
the division of the resources of the Bhakra-Nangal Project and the Beas project. The
construction of 112 km Sutlej Yamuna Link (SYL) canal began in early 1982 to divert
water for Rajasthan and southern Haryana. Punjab unit of Communist Party of India
(Marxist) and the Shiromani Akali Dal (SAD) protested the construction. SAD‘s
protest reverted to violent agitation and terrorism, culminating in the events of
Operation Blue Star at Amritsar in 1984. A tribunal was set up under Justice Eradi to
re-examine the appropriate allocation of water. In 1987, the findings of Eradi tribunal
were disputed by Punjab on the ground that there was not sufficient water to cover the
recommended allocations. Because of the violence, work of tribunal was closed
in1988 and canal construction ceased in 1990. The tribunal was reopened in1997and
the ruling was passed in favour of the Haryana Government in 2004. To oppose this
ruling, Punjab assembly passed a bill that nullified all previous agreements related to
the sharing of the waters of Ravi and Beas. 23
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4.3.2 Hydropolitcs in Pakistan:
In Pakistan, the leaders of the provinces of Balochistan, North-West Frontier
Province (NWFP) and Sindh view water resources policy as unduly skewed towards
the interests of Punjab. In the Indus Basin, there is provincial rivalry over the division
of the water. Sindh opposed Punjab‘s the Sutlej river valley project and Sukkur
barrage. The then Central Government of India attempted to solve these provincial
disputes by appointing the Anderson Commission (1935) and the Rau Commission
(1942), which provided the framework for allocating water between the provinces. 24
Inter-provincial rivalries were largely ignored in negotiations in the Indus
Water Treaty 1960 between India and Pakistan. The Sindhis felt that their interests
had been passed over in favour of those in Punjab. After partition, Pakistan
Government formed Water Allocation and Rates Commission (1968, known as the
Akhter Hussain Commission) and the Fazle Akber Committee (1970). The sensitivity
of the riparian issue in inter-provincial relations in Pakistan was registered early on,
when members of the constituent assembly from Sindh protested at their province not
being consulted over the construction of the BRBD Link Canal between the Ravi and
Sutlej rivers. The constitutional government was suspended in Pakistan in 1954, and
during its period of suspension the four provinces in the western wing of the country
were merged into a single province known as West Pakistan. The military-
bureaucratic oligarchy had taken over, and political representatives particularly from
the provinces were sidelined from power. With the initiatives of the World Bank,
negotiations started with India over the Indus Water Treaty, the inter-provincial
riparian issue had temporarily disappeared and Sindh‘s riparian interests went
unrepresented.25
There is controversy over the Kalabagh Dam in Pakistan. The dam was
proposed on the Indus River near the town of Kalabagh in northwestern Punjab. The
project has been on the drawing board since the 1960s, but vigorous opposition from
the three less-populous provinces of Pakistan has kept the project in abeyance. In
Pakistan the interprovincial conflict over the allocation of the Indus River‘s waters
dates back to the beginning of massive canal construction by the British in the Punjab
in the mid-nineteenth century. The first substantial interprovincial water-allocation
treaty between the Punjab and the downstream riparian Sindh provinces was signed in
1945. The treaty allocated 75 percent of the waters of the main-stem Indus River to
Sindh, with the remainder going to Punjab. The treaty further allocated 94 percent of
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the water from the five eastern tributaries of the Indus River to Punjab, with the
residual water going to Sindh.
The partition of the subcontinent and the subsequent signing of the Indus
Water Treaty by India and Pakistan in 1960 allocated most of what was Punjab‘s‘
share of the Indus Basin waters according to the 1945 Sindh-Punjab Agreement to
India and provided for construction of storage and link canals from the western half of
the Indus Basin to the eastern half to compensate for the water lost to India. The water
conflict between Sindh and Punjab had a tentative settlement in the form of the
interprovincial water accord of 1991, when the four provincial governments, all of
which were governed by the same political party, for the first time agreed to a water-
allocation formula. Based on the assumed average flow of 114.35 million acre-feet
(MAF) of water in the Indus system, the accord allocated 55.94 MAF of water to
Punjab Province and 48.76 MAF to Sindh province.26
The Water Apportionment Accords was negotiated in 1991 (Nawaz Sharif ‗s
Islami Jamhuri Ittehad held majority in all four provinces). Water was allocated on the
basis of the previous seven years supply, which favoured Punjab. In 1994, a new
Water Sharing Agreement was negotiated. Sindh dismissed the formula the aggregate
use of the previous seven years. Balochistanis feel that Sindh is not releasing adequate
amounts of water. The bureaucracy remains unsuccessful to find technical solutions
about water sharing, which are perceived within Pakistan to be political issues.27
Punjabi-dominated Pakistan Muslim League (PML-QA) has gone to great
pains to try to mobilize grassroots support for the dam—with little evidence of
success.28 Pakistan decided to construct the Diamar-Bhasha dam. Pakistani province
of Sindh, just like the Kalabagh dam, which fears that water will be diverted away
from them to (Pakistani) Punjab. The decision to construct projects such as the
Kalabagh dam, the Thal canal and the Bhasha dam have been resisted by Pakistan‘s
other three provinces, that fear that these projects will deprive them of water.29
The Kalabagh dam issue, after remaining on the sidelines for over a decade,
was raised again in 1998 by prime minister Nawaz Sharif who announced his eager-
ness to go ahead with the project. His own party‘s representatives in the Sindh
province rebelled and Sharif was forced to retract his announcement. Recently,
General Musharraf has expressed his support for the project, but he too faces re-
sistance from among his own supporters in Sindh. It is widely understood that inter-
provincial water distribution is a potentially explosive issue in Pakistan.30
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4.4 Water Dispute and Agreements
Radcliffe divided the province of former Punjab. This British authority is
responsible for the water dispute between India and Pakistan. 31 Under the unified
colonial rule of the British, there had been serious disputes between the separate
states. With the coming of independence and the subsequent partition between India
and Pakistan, the new international boundary line split the basin‘s 40 million
Pakistanis from its 10 million Indians. This complicated matters considerably
because, while most of the Indus and its five tributaries run in Pakistan, the upper 250
miles of the Indus and its tributary headwaters lie in India. India was thus in a position
to appropriate much of the river‘s crucial water supply and starve out downstream
Pakistan. 32
Questions of agricultural policy have entered the dispute. There has been a
shift in West Pakistan from the cultivation of wheat to the cultivation of cotton—in
competition with Indian cotton. The wheat fields required maximum water late in the
agricultural year (wheat is a rabi, or winter, crop) while cotton in Pakistan, as in
Indian Punjab, requires maximum water earlier, during the kharif, or summer, season.
India pointed out that this shift is a reason of the clash of water interests in the basin,
by increasing the coincidence of water demands by Pakistan and India. 33
On the all-India scale, the multiple crises of water are derived from declining
water availability per capita coupled with the growing demands of the consumerist
economy, the continuing low efficiency of irrigation, technological obsolescence and
poor regulatory mechanisms. Of the twenty major basins, fourteen are classified as
water stressed, meaning that per capita availability is less than 1000 cubic metres per
year. Three-quarters of India‘s total population lives in these water-stressed regions.
Agriculture absorbs 90 per cent of the total water availability is a significant factor in
food security. After the Green Revolution, surface and ground-water irrigation have
increased enormously. Two-thirds of the population depends upon rain-fed
agriculture.34
In most of the cases, the headworks were in India, but the canals were in
Pakistan. The agricultural economy of Pakistan became dependent for its existence
and even for its survival on the wishes of the other State, which controlled these
headworks. This was proved in 1948, when the Government of the East Punjab
stopped the flow of water in every canal entering Pakistan. 35
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 India, an upper riparian, supported her unilateral action by law of territorial
sovereignty, according to which it claimed the right to dispose of, as it might choose,
any part or whole of the water flowing in the portion of the river within its borders,
regardless of its adverse effect on the lower riparian, Pakistan. This principle
practiced neither in British India nor in any other part of the world. 36 Critical to
understanding the water dispute‘s origins is the role of irrigated agriculture in the
basin. With a semi-arid climate, agriculture in the Indus basin is heavily dependent
upon irrigation. The Indus River measured at Kalabagh can change from 70 km3
during the summer to 12 km3 during the winter.
Pakistan‘s geography makes it completely dependent upon the Indus basin for
its agricultural and municipal uses. Unlike India, which has a number of river systems
including the Ganges-Jumna system in the north, or the Cauvery River in the south,
Pakistan only has the waters from the Indus basin. Moreover, Pakistan‘s agricultural
products which are its primary economic income are heavily dependent upon irrigated
agriculture in the Punjab and Sindh. As lliff pointed out, ‗if Pakistan was deprived of
her canal water from the Indus system, the whole of West Pakistan would really
become a desert‘. Partition left Pakistan heavily dependent upon canals that were
controlled by India.
India‘s argument was that ―work on the Bhakara canals which had started
before partition of the country and on which the economy and future of some of her
famine areas depended should not be interrupted.‖37
4.4.1 The 1948 Agreement:
Allocation of the available water for new development was made equitably
with a preferential right accorded to riparians for their pre-existing uses. In 1942, the
Rau Commission confirmed the principle of equitable apportionment. It concluded,
―All parties have accepted the general principles which we tentatively formulated on
the first day after examining the practice in other parts of the world. It follows from
them that the rights of the several units concerned in this dispute must be determined
by applying neither the doctrine of sovereignty, nor the doctrine of riparian rights, but
the rule of ‗equitable apportionment,‘ each unit entitled to a fair share of the waters of
the Indus and its tributaries.‖ 38
Riparian issues between Pakistan and India were first anticipated with
reference to the future management of Punjab‘s irrigation system. Failure to arrive at
a settlement before independence led to a ‗standstill‘ agreement that maintained
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existing flows till March 31, 1948. The standstill agreement lapsed without progress
on a final settlement, and Indian Punjab promptly stopped downstream flows on the
Sutlej and the Upper Bari Doab canal systems, triggering a crisis in Pakistani Punjab.
Urgent negotiations followed, and new agreements were reached on April 18,
1948 between the two provincial governments for the restoration of flows to Pakistani
Punjab. The wording of the new agreements implied that the West Punjab government
had accepted East Punjab‘s right of pre-emption over supplies from the head works
located on the latter‘s territory. While West Punjab did not subsequently ratify these
agreements, it was widely perceived that Pakistan had compromised an otherwise
strong riparian claim in return for the immediate expedience of restored irrigation
supplies for the next crop. West Punjab started construction of the 100-mile long
Bombanwala-Ravi-Bedian-Dipalpur (BRBD) Link Canal in 1948 for the diversion of
Ravi flows to the Sutlej in anticipation of future stoppages by East Punjab. 39
Inter-Dominion Agreement: After the exchange of many telegraphic
messages, the representatives of the West Punjab and Pakistan Government met
representatives of the East Punjab and the Government of the Indian Union. In the
beginning of the negotiations, the representatives of the East Punjab were determined
not to release water in the canals unless the representatives of West Punjab accepted
that they did not have any right to the water. The representatives of the West Punjab
refused to do this. Thus the canals remained closed, bringing misery to the Pakistani
cultivators who depended on this water. The representatives of Pakistan then appealed
to Lord Mountbatten, then Governor-General of the Indian Union, who discussed this
matter with Prime Minister Nehru. Consequently the dispute was referred to the Inter-
Dominion Conference held on 3 and 4 May 1948 at New Delhi.
The Inter-Dominion Conference was not able to reach a final agreement, but
after it had taken place, a communique was issued announcing the reopening of the
Central Bari Doab and Dipalpur Canals, on the condition that the West Punjab
Government would deposit with the Reserve Bank of India an ad hoc sum as
seigniorage the amount of which was to be fixed by Prime Minister Nehru. Still the
distributaries of the canal in the Bahawalpur State as well as nineteen other
distributaries and forty-one courses bringing the water from the Upper Bari Doab
Canal remained closed.
The Inter-Dominion agreement comprises seven Articles. According to the
provisions of the agreement, the two parties met in July and October 1949 and again
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in March and May 1950 but without any result. It became evident that without settling
the fundamental question of the international rights of the two parties, no agreement
would result from these bilateral negotiations. 40
The Prime Minister of Pakistan, Liaquat Ali Khan, proposed an inter-
dominion conference to settle the dispute, and asked for the ‗immediate restoration of
the water supply‘. The Prime Minister of India, Jawaharlal Nehru, had to intervene
personally to have the Provincial Government of East Punjab restore water to West
Punjab‘s canals. In early May, India and Pakistan met in New Delhi to discuss the
dispute. The Inter-Dominion (Delhi) Agreement was signed on 4 May 1948,
documenting the countries‘ agreement that each had needs to be met from the Sutlej
River, and to continue bilateral talks.
Over the next three years, as the wider conflict raised tensions and positions
became more entrenched, bilateral attempts to resolve the Sultej River dispute failed,
including Pakistan‘s proposal to submit the dispute to the International Court of
Justice (ICJ), which India refused. The Sutlej River dispute was heightened by
differing interpretations of the Delhi Agreement and the resultant water use allowed to
India and Pakistan. Hirsch (1956) suggests India‘s refusal to submit the case to the
ICJ stemmed from a ‗feeling that a purely legal evaluation of the situation would
favor Pakistan‘. 41
Two years later, the Indian Government deposited with the United Nations this
―Inter-Dominion Agreement‖ as Treaty No. 794. Taking notice of this step, the
Government of Pakistan deposited in February 1951 with the Secretary-General of the
United Nations, a Note explaining that this Agreement was not a treaty but simply a
provisional technical agreement which reserved the rights of each party and which
could not be interpreted as a negotiated treaty. Moreover, Pakistan added that the
―Agreement of 4 May 1948‖ had expired since long and the Indian Government had
already been officially informed of it before and after 10 May 1950. Therefore,
Pakistan affirmed, ―the Agreement of 4 May 1948 in view of the Government of
Pakistan is without effect.‖ In any case, the Agreement was concerned only with two
specified canals, the Central Bari Doab Canal and the Dipalpur Canal, and did not
affect the rivers, Beas, Sutlej and the Ravi. 42 On March 31, 1948, that the Arbitral
Tribunal was terminated. On April 1, 1948, India closed all the canals crossing the
Indo-Pakistan border ‗‗for no apparent reason except malice.‖ It did so also later in
1952 and again in 1958. East Punjab insisted on its claim of sole proprietary rights
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over the waters of rivers flowing through its territories. The stalemate was keeping the
Pakistani canals dry. Representatives of both India and Pakistan actually stood by
their respective positions during the May 4, 1948 Conference, held in New Delhi.
The result was that no permanent solution was found. As the Inter-Dominion
Conferences held in Lahore and in New Delhi on July 1948 and in May 1949 failed to
resolve the differences. 43
A series of bilateral agreements between 1948 and 1958 provided an ad hoc
institutional basis for the sharing of water against the background of ongoing conflict
over Kashmir. Yet, the fear of being cut-off from this lifeline persisted in Pakistan
ever since India, after the so-called Standstill Agreement of 1948 expired, closed the
canals the very next day. 44
4.4.2 Efforts for the Peaceful Resolution after 1950:
Negotiations having failed, Pakistan suggested adjudication. In his letter of
February 1 4 , 1950, to Pandit Nehru, arguing for a reference to the International
Court, Liaquat Ali Khan wrote ―What is most urgently needed is to set at rest the fear
operating in the minds of people likely to be affected that the dispute may drag on
indefinitely, while their welfare and prosperity are progressively put in jeopardy.
They must be assured that, in the event of the dispute not being resolved by the
method now being pursued, it will be settled by adjudication of the tribunal best fitted
to resolve it. Since you are prepared to accept arbitration, there should be no objection
to designating the International Court of Justice as the arbitral authority.‖ 45
In 1951, an article written by Mr. David Lilienthal (former Chairman of the
Tennessee Valley Authority) appeared in a popular American magazine. This article
suggested that a solution of the dispute might possibly be found if Indian and Pakistan
technicians would together work out a comprehensive engineering plan for the
development of the waters of the system, on a joint basis, and if the World Bank
would undertake to assist in financing the necessary works.
Inspired by this idea, Mr. Eugene R. Black, the President of the World Bank,
proposed to the Governments of the two countries that, with the good offices of the
Bank, they might be able to resolve their differences on the use of the Indus waters.
His suggestion was accepted in March 1952. There followed two years of study by a
technical group consisting of Indian, Pakistan and World Bank engineers, under the
direction of General Raymond A. Wheeler.46

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 The Indus Mediations started in May 1952 at the Bank‘s headquarters in
Washington DC. In October 1953, after field trips for data collection, the Indian and
Pakistani delegations submitted their plans for the comprehensive development of the
Indus basin. To address the gap between these plans, the World Bank presented its
own plan in February 1954. The Bank‘s 1954 plan proposed to divide the Indus basin.
India would receive the three eastern rivers (the Sutlej, Beas and Ravi) or
approximately 20% of the Indus waters, and Pakistan would receive the three western
rivers (the Chenab, Jhelum and the Indus) and approximately 80% of the total surface
waters.47
On the initiative of Eugene Black, President of the International Bank for
Reconstruction and Development, negotiations started which resulted in the
agreement of March 1 3 , 1952, that ―so long as the cooperative work continues with
the participation of the Bank, neither side will take any action to diminish the supplies
available to the other side for existing uses.‖48
In October 1953, the representatives of India and Pakistan submitted their
respective plans to the Working Party for discussion. The propositions put forward by
the engineers of the two countries were different not only in conception but also in
their respective approaches towards a solution. The Working Party agreed on the fact
that the annual flow of rivers was not sufficient to serve as the basis for planning and
that more modest figures should be taken. For practical purposes, they agreed that the
volume of water may be increased by the construction of reservoirs. 49 In February
1954, General Wheeler was authorized by the Bank Management to make a Bank
Proposal for consideration by the two Governments.
The elements of the World Bank Proposal were:
a) the waters of the three Eastern Rivers (Ravi, Beas and Sutlej) should be for
the use of India;
b) the waters of the three Western Rivers (Indus, Jhelum and Chenab) should
be for the use of Pakistan;
c) 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
d) India should pay the cost of constructing these replacement link canals.
The Bank Proposal was accepted by India, with some reservations, as the basis
of a settlement. Pakistan, however, felt unable to accept the Proposal unless it
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underwent substantial amendment, mainly related to the inclusion of some reservoir
storage in the replacement plan to meet irrigation uses in Pakistan during the critical
periods of short flow supplies.
There then followed more than four years of discussion and negotiation in
Washington between an Indian Delegation, led by Mr. N. D. Gulhati (Additional
Secretary to the Government of India, Ministry of Irrigation and Power) and a
Pakistan Delegation, led by Mr. G. Mueenuddin (Secretary to the Government of
Pakistan, Ministry of Fuel, Power and National Resources). The Bank was
represented by Mr. Iliff, assisted by a small group of technical experts led by General
Wheeler.50
The Bank‘s 1954 plan proposed to divide the Indus basin. India would receive
the three eastern rivers (the Sutlej, Beas and Ravi) or approximately 20% of the Indus
waters, and Pakistan would receive the three western rivers (the Chenab, Jhelum and
the Indus) and approximately 80% of the total surface waters.
Pakistan felt the 1954 Plan left it insufficient water to meet its needs. Pakistan
succeeded in persuading the World Bank that it needed storage facilities to meet its
needs, and having the 1954 Plan amended with the 1956 Aide-Memoire which
envisaged storage facilities on the western rivers for Pakistan. Whereas India had
accepted the 1954 Plan, it objected to the Aide-Memoire because it was concerned
about incurring additional financial obligations to Pakistan. Further negotiations
separated discussions on the technical need for infrastructure from their funding.
Following a coup d’etat in October 1958, the Government of Pakistan
unconditionally accepted the 1954 Plan (the division of the basin) and the 1956 Aide-
Memoire (storage facilities on the western rivers) in December 1958. 51
On August 2 1 , 1957, India complained to the United Nations against
Pakistan‘s plans for building a dam at Mangla in Azad Kashmir. Pakistan‘s
Permanent Representative replied that it was to be constructed with the cooperation of
the Azad Kashmir Government and would in no way adversely effect any existing
interest. It was for developing parts of that disputed region and was similar to the
developments on the Indian side of the cease-fire line.
In 1958, tripartite negotiations in Rome and subsequent talks in London and
Washington failed, due to India‘s refusal to agree to pay the needed money for
construction works in Pakistan. India wanted to pay only a fraction of the calculated
cost. The Bank plan of May 1958, keeping in mind the growing needs of water in the
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two countries and their financial difficulties reportedly envisaged (1) construction of
link canals and dams in India to divert the waters of the eastern rivers in a manner that
would not cause harm to the West Pakistan irrigation system; (2) new irrigation
systems in both the countries for further development purposes; and (3) a financing
scheme for the proposed works. The U. S., Britain, Canada and Australia reportedly
were agreeable to provide the financial and other assistance and the World Bank was
to provide loans to the disputants to fill up the gap. The plan was reported to cost
1,000 million dollars. It was stated that Pakistan‘s major demand of locating all
replacement works in its territory had been accepted. Pandit Nehru‘s comment on the
plan was that the interim period during which India was to supply water to Pakistan
was ―rather long‖ and the expenditure on the Pakistani replacement scheme ―very
big—rather overwhelming.‖ Then there was the Mangla Dam—the King pin of the
Pakistani plan. Pandit Nehru was not ready to accept a settlement ‗which affected‖
India‘s ―rights in the matter.‖ Moreover, it was reported that India was standing firm
by the Mahru tunnel scheme, which was not acceptable to Pakistan, since it would
have left India in control of water supplies to Pakistan. 52
Tensions between the two countries have been further heightened by
Pakistan‘s decision to construct the Diamar-Bhasha dam. Just like the Kalabagh dam,
this dam is feared by India, which is concerned it will inundate substantial portions of
Jammu and Kashmir. India has formally protested against the Diamar-Bhashadam,
although Pakistan argues that because the area is recognized by the United Nations as
disputed territory it is not violation the terms of the IWT. These developments suggest
that the recent rapprochement on other issues will not prevent the politics of water
continuing to be an important component of an uneasy relationship between the two
countries. 53
The Bank representative used strong language, ‗that he was completely out of
sympathy with both India and Pakistan in their attitude over this whole issue‘, and
added that ‗considerably more reasonableness will have to be shown if any progress is
to be made‘. As late as March 1960, India and Pakistan had to be reminded that the
negotiations‘ purpose was ‗to find a solution acceptable to both India and Pakistan‘.
But mistrust continued. Pakistan had agreed to Indian withdrawals from the western
rivers for use in Indian-controlled Kashmir but demanded an inspection system to
ensure India did not withdraw more water than it was entitled. India refused, “we‘re
not going to have any action of the Government of India policed by Pakistan.‖
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 Negotiations were not just held between India and Pakistan, but also internally
within Pakistan‘s delegation. The provinces of Punjab and Sindh continued to
compete for water, and each needed to ensure that any agreement with India
accounted for its needs. Therefore, each province had strong representation within the
Pakistan delegation. In particular, Sindh was concerned that its planned uses on the
Indus River would be lost to replacement works that would mainly benefit Punjab,
and therefore pushed for development works to be included in the negotiations with
India. At times these provincial differences hampered progress in the negotiations
with India. 54
By May 1959 the main issues standing in the way of a settlement had
crystallized, and Mr. Black and Mr. Iliff visited New Delhi and Karachi to hold con-
versations with the Prime Minister of India and with the President of Pakistan. In the
course of this visit, agreement was reached on the general principles on which a water
treaty should be based including the system of works to be constructed as part of the
settlement arrangements, and the financial contribution to be made by India.The
drafting of the Treaty began in August 1959. The texts of the Indus Waters Treaty and
of the Indus Basin Development Fund Agreement were finally agreed on late in
August 1960.55
The following method was adopted to resolve the dispute:
(a) The Bank and Pakistan agreed on the system of replacement works to be
constructed in Pakistan, one of the purposes of this system to be the feeding of
the canals which were dependent on the eastern rivers with waters of the
western rivers. India would have no part in the conception, construction or the
administration of the replacement works in Pakistan.
(b) The Bank and India agreed on the financial participation of India in the works
to be constructed in Pakistan.
(c) The transition period was set at ten years. The Indian Union accepted this on
the condition that she would progressively withdraw the waters of the eastern
rivers for use in India. The Bank also agreed to provide foreign exchange to
India for the construction of the reservoir to be constructed on the Beas.
(d) The transition period could be extended at the request of Pakistan by one to
three years. The annual financial contribution by India was to be reduced in
proportion to the period thus extended.

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 (e) Pakistan accepted certain uses by India in the upper reaches of the western
rivers before they entered into Pakistan.
On the basis of these principles, which were accepted by both the parties,
discussions took place in London and Washington for the preparation of a treaty.
This treaty was signed on 19 September 1960.56
A Treaty governing the use of the waters of the Indus system of rivers, entitled
―The Indus Water Treaty 1960,‖ was signed in Karachi, by Shri Jawaharlal Nehru
(Prime Minister of India) on behalf of India and by Field Marshal Mohammad Ayub
Khan (President of Pakistan) on behalf of Pakistan. The Treaty was signed on behalf
of the World Bank by Mr. W. A. B. Iliff (Vice President of the Bank) in the absence
of the President of the Bank, Mr. Eugene R. Black, due to the illness.
Simultaneously with the signing of the Indus Waters Treaty, an international
financial Agreement was also executed in Karachi by representatives of the
Governments of Australia, Canada, Germany, New Zealand, Pakistan, the United
Kingdom and the United States, and of the World Bank. This Agreement creates an
Indus Basin Development Fund of almost $900 million to finance the construction of
irrigation and other works in Pakistan consequential on the Treaty settlement. It was
decided that the fund would be financed with the equivalent of about $640 million to
be provided by the participating governments, with a contribution of approximately
$174 million payable by India under the Water Treaty, and with $80 million out of the
proceeds of a World Bank loan to Pakistan. 57
President Muhammad Ayub Khan stated (in a radio broadcast on 3 September
1960), an ―ideal solution when negotiated can seldom be obtained, but this is the best
that we could get under the circumstances many of which, irrespective of merits and
legality of the case, are against us.‖58

4.5 Indus Water Treaty- 1960

According to Chellaney, ‗the IWT is the world‘s most generous water-sharing
pact‘ and that ‗this treaty‘s munificence is unsurpassed in scale in the annals of
international water treaties.‘59
IWT was signed on September 19, 1960 after 8 years of hectic negotiation
under the auspices of the World Bank (WB) and it came into existence with
retrospective effect from April 1, 1960. The IWT is a complex instrument comprising
12 articles and 8 annexures. Under IWT India got 33 MAF (million acre feet) of
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annual flow from the eastern rivers and Pakistan got 165 MAF from the western
rivers.60
Daanish Mustafa raised some questions. Is there a nexus between security and
hydropolitics? What are the implications of a security-centered approach to
hydropolitics? What are the implications of conflict over water across local,
interprovincial, and international scales? How does the geography of water-resources
distribution, development, and hazards at the subnational scale contribute to or
threaten security at the national and international scales?
Drawing primarily on case studies of the Jordan, Nile, and Tigris and
Euphrates River Basins, Zeitoun and Warner argue for a hydrohegemony framework
in which the most powerful riparian imposes unfavorable water agreements on weaker
riparians by threatening to use force or through superior bargaining or discursive
power.61
The Treaty consists of three parts: the Preamble, twelve Articles and
Annexures A to H. The principal subjects covered by the Annexures are: agricultural
use by Pakistan of certain tributaries of the Ravi; agricultural use by India of the
upper reaches of the western rivers; generation of hydroelectric power and storage of
waters from the western rivers by India; a procedure to solve disputes and differences
through a Commission, neutral experts and a court of arbitration; and the allocation to
Pakistan of some water from the eastern rivers during the period of transition.
India accepts Pakistan‘s right to withdraw the waters of the tributaries
(Basantry, Bein, Tarnah, Ujh) of the Ravi for agricultural use. India undertakes to
restrict its withdrawals from the eastern rivers during the transition period the details
of which are given in Annexure H. to irrigate areas. Further, Pakistan recognizes that
India may use water from Tany source for tree plantation on road sides. 62
The Indus Waters Treaty divides the Indus basin into two units. Pakistan has
to bring the waters of the western rivers to replace the waters of the eastern rivers
through the replacement works envisaged by the ―Indus Basin Fund‖. These works
are two reservoirs, Tarbela on the Indus, with a capacity of 4.2 million acre-feet, and
Mangla on the Jhelum, with a capacity of 4.75 million acre-feet, three barrages, eight
link canals and 2,500 tube wells. Pakistan will also be able to produce 300,000 kilo-
watts of electricity from these works. The estimated cost provided for in the Indus
Basin Fund for constructing these replacement works is about 900 million dollars,

147
contributed by Australia, Canada, Germany, India, New Zealand, Pakistan, UK and
USA. 63
India claimed that she was in need of the Indus basin waters for the Bhakkra
reservoir to irrigate the desert of Rajasthan. She has not only obtained the waters of
the three eastern rivers but also the credit required to construct a reservoir on the
Beas. According to the Treaty, the waters of the three eastern rivers given to India
will irrigate not only the part of the Indus basin lying in India, but the larger portion of
these waters, 25 million acre-feet, will go outside that basin to irrigate the Rajasthan
desert, for which actually the waters of the Jumna river should have been utilised.
Only after taking into consideration the present and future needs of the irrigated and
non-irrigated parts of the Indus basin should one have allocated any water for a region
outside the basin. 64
4.5.1 The Indus Basin Settlement Plan:
The Settlement Plan provided for two great storage reservoirs on the Indus and
Jhelum, 4 barrages and a syphon, and nearly 400 miles of link canals draining
eastwards. During a construction period of 10 years India has agreed to limit water
withdrawal from the eastern rivers leaving a proportion for use in Pakistan.
Construction has started on the Mangla Dam on the Jhelum river. A 2-mile
long earth-filled dam at the point where the Jhelum emerges on to the plain will create
a reservoir of 100 square miles with a capacity of 4.75 million acre feet. In addition to
water storage a hydro-electric power station will have initial capacity for 300,000 kw,
and a potential capacity of 900,000 kw Completion year was 1968.65
Tarbela Dam, 30 miles north of Attock on the Indus, is designed to have a
gross storage capacity of 7.8 million acre feet, and the power station a potential of
1,500,000 kw. Both Mangla and Tarbela dams are being designed with provision for
future enlargement. Since the Indus and the Jhelum carry vast quantities of silt, it is
estimated that, under present conditions of erosion, the reservoirs will silt up in little
more than 100 years.
The Settlement Plan also provides for seven new canals linking the principal
rivers and carrying released water from Mangla and Tarbela reservoirs eastwards
across West Pakistan. The combined length of these new canals will be 388 miles.
The operation also includes the construction of 19 major regulators, 14 railway
bridges, 53 main road bridges and some 300 minor structures.66

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Four new barrages are to be constructed on the Indus, the Jhelum, the Chenab and the
Ravi; a syphon will carry link canal water under the Sutlej at Mailsi. These structures
will not only divert water into the link canals but also serve to control river flood
water and provide local irrigation. 67
The Settlement Plan for the Indus Basin in West Pakistan

MAP 4.2. Link canals: 1) Rasul-Qadirabad, 2) Qadirabad-Balloki, 3) Balloki-Suleimanke, 4) Chasma-

Jhelum, 5) Trimmu-Sidhnai, 6)) Sidhnai-Mailsi-Bahawal, 7) Taunsa-Panjnad. Barrages: A—Rasul,
B—Qadirabad, G—Ghasma, D— Sidhnai, E—Mailsi syphon. Source: Prentice, Anne (1964). The
Indus Basin Settlement Plan, Geography, Vol. 49, No. 2, p. 129

149
 Pakistan is undertaking a number of major water projects of which Warsak
Dam (1961) and Gudu Barrage (1962) are the largest. Warsak near Peshawar is
principally a power station with installed capacity of 160,000 kw. Gudu Barrage on
the Indus provides irrigation water storage. A number of smaller local dams are under
construction to supply domestic and irrigation water and power in the Frontier
Provinces. Pakistan planned for the construction of several thermal power stations of
which the largest are Multan, Hyderabad and Sukkur and Quetta.68
There are four essential elements to the treaty. The first relates to the division
of the waters. The waters of the three western rivers (the Indus, the Jhelum and the
Chenab) were allocated to Pakistan, and the waters of the three eastern rivers (the
Ravi, the Beas and the Sutlej) were allocated to India. The second was a financing
plan to assist Pakistan in building the vast ―replacement works‖ (Tarbela Dam on the
Indus and Mangla on the Jhelum in Pakistan-held Kashmir and the massive link
canals) which were needed to store and transport water from rivers in the west to the
irrigated areas of Pakistan. India contributed about 20% of the almost $1 billion (in
i960 dollars) required.
The third element relates to use of the hydroelectric potential of ―Pakistan‘s
rivers‖ before they reach Pakistan. This was a major bone of contention in the
negotiations. India had a legitimate desire to harness the hydroelectric potential of
―Pakistan‘s rivers‖ before the rivers reached the Line of Control. Pakistan was well
aware that the backbone of its economy was irrigated agriculture that was built around
the natural flows of the rivers, and thus worried that its security would be seriously
compromised if India built dams which could alter the timing of water coming to
Pakistan, especially from the Jhelum and the Chenab. The compromise reached in the
IWT was that India could use the hydro potential on the rivers, but that there would be
restrictions on the manipulable storage that India could construct on these rivers.
The fourth element of the treaty is the dispute resolution mechanism, which
sets up rules whereby first recourse is for the Indian and Pakistani IWT
commissioners to resolve potential problems. If this fails then there are provisions for
external arbitration, either through a neutral expert appointed by the World Bank, or
through an international court of arbitration. 69
4.5.2 Restrictions on India:
It is precisely to allay such anxieties that the treaty lays down a number of
conditions and restrictions on India: (1) The treaty requires India to let the waters of
150
the western rivers flow to Pakistan. In using the waters for power generation, India
may have to withhold them temporarily and release them later, and the treaty permits
variations within a range (50% to 130%) but only within a seven-day period; the
necessary adjustments must be made within that period. (The adjustment must be
made within a day in the case of projects close to the border.)
(2) While the treaty permits India to construct ―run of the river‖ schemes for
hydroelectric power, India cannot create any storage on the western rivers (except to a
limited extent as specified in the annexures to the treaty).
(3) While ―storage‖ by India on the western rivers is not allowed, ―pondage‖ is
permitted. This refers to the limited quantum of water that can be held behind the dam
for operational purposes. There is a limit on the quantum of ―pondage‖.
(4) The design of the project must not be such as to enable India to raise artificially
the water level above the permitted level.
(5) If gated spillways are considered necessary in the conditions obtaining at the site,
the bottom of the gates shall be located at the highest level consistent with sound and
economical design and satisfactory construction and operation.
(6) Similarly, the water intake for the power plant shall be located at the highest level
consistent with satisfactory and economical construction and operation.
(7) There shall be no outlets below the dead storage level, unless sediment control or
other technical considerations necessitate this.
4.5.3 Protection to Pakistan:
It will be seen that flows to Pakistan are protected; storage by India on the
western rivers is prohibited; pondage is allowed but restricted; the project design is
subject to the condition of not allowing India to store more than the permitted
quantum of water; and the possibility of flooding is sought to be prevented by the
high placement of outlets. Pakistan is thus amply protected and has only to make sure
that India adheres to these provisions. It can watch that compliance through the mech-
anism of the Indus Commission. In the event of differences or disputes, it can invoke
the arbitration clause, as it did in the case of the Baglihar project. There is, thus, no
case at all for raising these matters in the composite dialogue. 70
The Indus Treaty allows India to build storages aggregating 3.60 million acre
feet on the three western rivers in J&K: 1.60 MAF for hydro-power, 0.75 MAF for
flood moderation and 1.25 MAF for general storage for non-consumptive uses,
including power generation. The western rivers, which collectively have an assessed
151
hydroelectric potential of 8825 MW at 60 per cent load factor. At the turn of the
century, however, under 1400 MW had been harnessed, only 4 MW of this on the
Indus. 71

4.6 Dispute over Indian Projects

Pakistan was very suspicious about India‘s projects on the rivers. Every time it
objected and halted these projects. Pakistan has expressed opposition to the
Tulbul/Wullar navigation project, Sawalkote hydroelectric project and the
Kishanganga hydroelectric project, all located in J & K .
4.6.1 Salal Dam Project:
After the signing of Indus Waters Treaty, the first dispute between India and
Pakistan arose over the construction of the Salal Dam by India on the Chenab River.
Under the terms of the Treaty, India submitted its plan to the Permanent Indus
Commission for Pakistan‘s approval in 1968. A run of-the-river hydroelectric project,
Salal was deemed crucial for the agricultural needs of the Indian Punjab and
economic progress of the country. In 1974 Pakistan lodged an official objection to the
design of Salal project stating that it did not conform to the criteria for design of such
hydroelectric projects envisaged in the Treaty. During the course of negotiations,
several options were discussed for reaching to a final settlement including resort to
the arbitration procedure provided in the Treaty. Finally, India agreed to make some
changes in the design of the dam, including reducing the height of the dam and to the
permanent closure of the diversion canal after the hydroelectric plant had been
commissioned.
The resolution of this dispute was hailed in both countries and is still quoted as
a case of successful diplomacy over water sharing between Pakistan and India due to
the concessions made under the Salal Agreement signed in April 1978. 72
4.6.2 Tulbul/Wullar Barrage Navigation Project:
The Jhelum river flows into the lake from the south and flows out of it from
the west. The lake obstructs the flow of Jhelum river (its name is a derivative of
Sanskrit word which means ‗obstacle‘). 73 Passing through Srinagar and the District of
Baramula, it enters into Azad Kashmir at Muzaffarabad .‖Here the rivers Nilam and
Kunhar fall in it simultaneously and then it turns towards the south‖. Wular Lake is

152
located about 25 kilometers north of Srinagar on the river Jhelum Main at about
5187.24 feet above sea level. 74
In 1984 India started building the barrage and navigational project at the
mouth of the Wullar Lake on the River Jhelum. India called it Tulbul Navigation
project whereas Pakistan termed it the Wullar Barrage. The project comprises a
barrage of 439 feet in length, located at the outfall of Wular Lake with two under-
sluices and a 12 meter wide navigational lock. The barrage on completion would
create a storage of 0.3 to 0.5 million acre-feet (MAF). It would have a discharge
capacity of 50,000 cusecs and would enable point level in the lake to be raised and
maintained at an elevation of 5,178 feet above sea level. 75
The work on the project started in December 1984; foundations of the
navigation lock, under-sluices and adjoining lay of the barrage have been excavated
and work on iron sheet piling is nearing completion. In 1986, Pakistan opposed Indian
plan and referred the case to the Indus Commission. In 1987, work was halted on the
project by India. The main point of dispute is that Pakistan views the project as a
storage work while India claims that it is a navigational project. These divergent
positions are further urged in the light of specific provisions of the Indus Waters
Treaty. For Pakistan, the project violates Article I (11) that prohibits both parties from
undertaking any ‗manmade obstruction‘ that may cause a change in the volume of
water. Article III (4) prohibits India from storing any water on the western rivers;
Further, sub-para 8 (h) entitles India to construct incidental storage work on the
western rivers only after the design has been scrutinized and approved by Pakistan.
India‘s contention is that despite the broad principles governing the Treaty,
India has been allowed, under certain conditions, to construct a barrage in the light of
Article 3(4) conditions, which are contained in Annex D and E of the Treaty. India
views the project as an attempt to make the Jhelum navigable, not a reservoir. 76
The project was initiated by India on the ground that Wullar Lake is a natural
water reservoir and not a new project. The barrage would regulate the flow of water
downstream for navigation. The logic for the project was to have a better water level
during lean seasons when the routine discharge of the river decreases to just 2,000
cusecs at a depth of around 2.5 feet. A minimum depth of four feet with a flow of
4,000 cusecs is required for navigation.77
For India, the barrage is important because Wular Lake can serve the purpose
of transportational infrastructure to link Baramula with Srinagar. India claims to have
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devised the barrage to solve the problem of navigation over a distance of 22
kilometers between Wular Lake and Baramula in order to connect Srinagar with
Baramula. The problem as set forth by the Indian government before the Pakistan
government is the transportation of mainly 0.5 million tons of apple and other fruits
from the gardens adjacent to Baramula along with a huge quantity of timber from
Baramula jungles to Srinagar. The adjacent land topography hardly permits the
construction of a metalled road or railway line. Secondly, the construction cost of the
road would be many times greater than the barrage construction. India claims that the
―Tulbal Navigation Project‖ will be 90 per cent beneficial to Pakistan, as it will
regulate the supply of water to Mangla Dam through the Jhelum and Pakistan would
be in a position to increase the capacity of power generation at Mangla and regulate
supply to the Triple Canals System for greater irrigation in the Punjab.
India argued that the barrage in fact would help the lower riparian Pakistan,
for it would reduce the speed of flow which in flood season rose as high as 67 km per
hour, to the lean season‘s flow of 32 km per hour. ―India is already using the water
from the Jhelum Main for their 105-110 megawatt power station, on lower Jhelum
and a 6-megawatt plant, run-of-river at Mohora‖. The Tulbal Navigation Project is a
two-phase project: a barrage at the mouth of Wular Lake at Ningali and a 960-
megawatt hydroelectric power station at Uri, close to the Line of Actual Control in
Kashmir.The Indian government started the Wular Barrage construction in 1984.
Pakistan came to know of it in February 1985. After that the Indian government,
through its Commissioner for Indus Waters, had expressed its desire to build a barrage
on Wular Lake. The then Government of Pakistan, through its Commissioner,
conveyed its objections to the proposed project and sought details in the spring of
1985.
India views, this is legally permissible under sub-paragraph g(1) of Annexure
E which prescribes that the storage may not be man-made but may consist of side
valleys, depressions or lakes and India has also justified the construction of the
barrage on the ground that it is meant for navigational purposes during the winter
months. 78
Pakistan’s objection: Wular Barrage would ruin the entire system of the
Triple Canals Project (namely, the Upper Jhelum Canal, the Upper Chenab Canal and
the Lower Bari Doab Canal). It would lay waste hundreds of thousands of acres of
fertile land in the Punjab and Sindh which are being fed through the Jhelum and its
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tributary canal system. There will be the risk of floods and droughts in this region as
with India controlling the Jhelum. The Mangla Dam near Mirpur is also being fed by
the Jhelum, its very survival would be at stake.
Moreover, the control of the Jhelum by India has also severe consequences for
Pakistan‘s defense infrastructure. During the 1965 war, the Indian army had failed to
cross the BRB Link Canal due to its full swing flow. During adverse circumstances
such as war will provide India with an edge over Pakistan‘s army because India would
be able to control the mobility and retreat of troops by inundating the battlefield or
canals or enhance the maneuverability of its own troops by closing the barrage gates,
thus rendering the canal system dry and easy to cross.
It will affect Mangla Dam, which has the capacity to produce one million
kilowatts or half of the total electricity provided through hydroelectric plants in
Pakistan. This project will affect the economy of Pakistan due to the danger of
reduction in industrial activity and agriculture as a result of the stoppage of tube well
function. According to Nasrullah Dreshak, giving such power to India which is no
well-wisher of Pakistan, will be equivalent to the political and economic murder of
the country‘s defense and security.79
From the foregoing provisions, sub-paragraph 8(h), it emerges that India is
entitled to construct an incidental storage work on the river Jhelum if it does not
exceed 10,000 acre-feet of water. India, on the other hand, as mentioned earlier, is
engaged in building a barrage of 300,000 acre-feet storage capacity that is thirty times
more than the permitted capacity. Hence Pakistan‘s objection is well-founded that
India is clearly violating the terms of the Indus Waters Treaty.
India contends that she is allowed distinct kinds of uses of the western rivers -
domestic use (drinking, washing etc.); agricultural use for irrigation; a restricted use
for generation of hydroelectric power through run-of-river plants; and what is called
non-consumptive use under Article III of the Indus Waters Treaty. Article I (11)
defines ―non-consumptive‖, use 1 ―...any control or use of water for navigation‖ and
other specified purpose provided that ―the water (undiminished in volume within the

1
―The term ‗Non-Consumptive Use‘ means any control or use of water for navigation, floating of
timber or other property, flood protecting or flood control, ashing or fish culture, wild life or other like
beneficial purposes, provided that, exclusive of seepage and evaporation of water incidental to the
control or use, the water (undiminished in volume within the practical range of measurement) remains
in , or is returned to, the same river or its Tributaries; but the term does not include Agricultural Use or
use for generation of hydro-electric power.‖ Article 1(11) of the Indus Waters Treaty, 1960.
155
practical range of measurement) remains in or is returned to, the same river or its
Tributaries...‖
Pakistan strongly objects that it is not a work for navigational control, but of
storage. India has provided three assurances. First, that the Tulbal Navigation Project
is to control and regulate the depletion from Wular Lake so as to provide the requisite
flow in the Jhelum. Second, the volume of water that flows into the Jhelum as it enters
Pakistan will not be diminished nor will there be any material change in the flow in
any channel. Third, these precautions envisaged in the project will be in the interest of
Pakistan as well. Pakistan rejected the assurances. Pakistan expressed that:
1. India was, in fact, attempting to gain control of the waters of Jhelum Main for
hydroelectric power production.
2. The Indus Waters Treaty, 1960 does not contain any provision for
construction of any ―dam‖, ―barrage‖ or ―storage work‖ on the ―Jhelum
Main‖, except 10,000 acre-feet as ―incidental storage‖ for flood control. India,
on the other hand, has planned to ―store‖ 0.3 MAF, by constructing a full-
fledged ―dam‖ under the cover of Tulbal Navigation Project, which is a sheer
violation of the Treaty.
3. India has planned to erect a 960-megawatt hydroelectric plant at Uri. Under
the Treaty, India is allowed to construct ―small‖ run-of-river plants with
maximum discharge of 300 cusecs through turbine; 960-megawatt cannot be
generated by just 300 cusecs spill.

India has two run-of-river hydroelectric plants, one at Sopore and the other on
the lower Jhelum and has planned another at Uri in Baramula district, very close to
the Line of Actual Control. Under the Treaty, this is permissible for India but with
some limits and constraints, i.e. discharge should not exceed 300 cusecs.
4. India would be able to stop the water flow of the river Jhelum for 20 to 30
days completely. This could greatly reduce the production of electricity at
Mangla and thereby adversely affect the Punjab‘s agriculture in particular and
overall industrial activity in the country in general.
5. The river Jhelum is a very important tributary of the river Indus. With the
reduction in the flow of the river Jhelum, water flow in the Indus would be
automatically reduced, thereby damaging the economy and agriculture in
Sindh province. 80

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 Moreover, India can exploit this issue to her advantage. To defame Pakistan
among the people in held Kashmir, India can propagate that it is interested in their
welfare but Pakistan is creating hurdles. India can also exploit this issue to enhance
internal squabbling in Pakistan over the sharing of the Indus waters among the
provinces - by creating panic among the farmers of the Punjab. India will also be able
to create technical problems in keeping the Mangla Dam in good working order, as
questions asked about the benefits of the Indus Waters Treaty. 81

Why not Court of Arbitration? During the negotiations, the Indian experts
again assured Pakistan that the water of the barrage will not be used for the generation
of electricity. India maintained that stored water will be used only for navigation. The
question arises, if India‘s position is so weak legally, then why is the Government of
Pakistan still adhering to negotiations which have so far proved futile, rather than
referring it to the Court of Arbitration? Some reasons stated are that:
1. Pakistan wants good neighbourly relations with India. Prime Minister Benazir
Bhutto has categorically declared that, ―The government is cognizant of this vital
issue, which relates to the economy of the country and negotiations with India are
being continued in the spirit of (the) Simla Agreement‖. No doubt, ―The present
government is following the policy of co-existence with all neighbours especially
with India, but not at the cost of compromising Pakistan‘s interests. It is wrong to
assume that Pakistan has given its consent to India to construct Wular Barrage, in
occupied Kashmir‖.
2. Pakistan expects a better deal through a ―negotiated settlement‖ with India. ―Even
if we lose in the negotiation, chances of which are very few, we will be able to go to
the International Court of Arbitration... any negotiations do not stop us from taking
the legal course... we are not at any loss by continuing the talks because the work on
the Barrage has already been suspended by India‖.
3. ―The International Court is not supposed to necessarily adhere to the Indus Waters
Treaty, under which the bilateral talks are being held. The Barrage is an indirect
violation of the Treaty and we have a strong case according to it. But once we go to
the court, the Indus Waters Treaty as well as any other bilateral document can be
challenged, under the law of equity‖.
4. The ―case in the International Court of Arbitration will take as long as three to five
years to be decided, and, it will cost Pakistan about Rs.5 to 10 crore in foreign
exchange‖.
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5. ―Even if we win the case, the International Court of Justice has no coercive force to
implement its decision; so it is beneficial for both the parties to settle the issue
bilaterally on the basis of mutual trust and benefit‖. The only alternatives left now are
an accord or an expensive, time-consuming reference to the Court of Arbitration.
For a better deal through a negotiated settlement, the Government of Pakistan
sent a delegation to India in March 1989, for negotiations. 82
On 6 August 1990, the People‘s Party government was removed under a
Presidential order and Pakistan went under process of new elections. In India, Prime
Minister V.P. Singh faced a no-confidence move and was thrown out from the Rajya
Sabha. The succeeding governments of Prime Minister Nawaz Sharif and Mr Chandra
Shekhar paid no attention to the issue mainly due to the Kashmir uprising and the
Gulf crisis and also due to internal events in both the countries. Controlling the water
for navigation is permissible under the Treaty. Talks were held over this barrage but it
remains the oldest and longest lasting water dispute between India and Pakistan. Till
date this dispute is not resolved.83
4.6.3 Baglihar:
Baglihar Hydropower Project (BHPP) is positioned in Chanderkote in Doda
district of J & K at a location 150 km upstream of the international boundary on the
river Chenab, was conceived in 1982. The dispute cropped up in May 1999, when the
works on BHPP began with Pakistan first objecting to its design. India expects to
complete the BHPP, which is a run-of-the-river project, in two phases. In Phase I, the
Baglihar dam will have an installed capacity of 450 MW, which will be raised to 900
MW in Phase II. BHPP will have a gross storage of 396 million cubic metres of water
of which the live pondage will be no more than 37.5 m cu m (or 46,570 acre-feet)
which is to be returned to the river in strict accordance with treaty stipulations. The
balance is dead storage for trapping silt. The MoU for the construction of BHPP was
signed on March 11, 1999 with Jaiprakash Industries, the biggest Indian hydropower
construction company, and two other companies, Siemens and Hydro Vevey. 84 The
Indian Government renewed its commitment to the project in its 2006-07 budget,
which includes a Rs. 2.3 billion for Baglihar Project.85
Pakistan intimated that alterations so made had resulted in them being in
contravention of the relevant provisions of the IWT dealing with (a) pondage level (b)
gated spillways (c) capability of raising water level artificially in the operating pool
above full pondage level. The Pakistanis made demands that work on the project be
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halted immediately. The Indians countered stating that the dam construction was too
far advanced for it to be stopped now, probably fearing that the whole project would
end up going the Wullar barrage way. As for the demand for inspection, India
countered by stating that the same would not be possible in view of the tense situation
at the line of control.86 The issue came to a boil when there was a special meeting of
the Indus Water Commission held at the request of the Pakistani side during February
2003 in Islamabad. The two sides were unable to reach any sort of an agreement at
this point as well and the Pakistanis threatened to demand a neutral arbitrator.
The project has been categorised by India as a ‗Run-of-River Plant‘, which has
been defined as a hydro-electric plant that develops power without live storage as an
integral part of the plan, except for pondage and surcharge storage. Part 3 of the
Annexure specifically deals with new ‗Run-of-River Plants‘, and under para (8), pro-
vides the criterion: The works themselves shall not be capable of raising artificially
the water level in the operating pool above the full pondage level specified in the
design. The design of the work shall take due account of the requirements of
surcharge storage and of secondary power. (3) The maximum pondage in the
operating pool shall not exceed twice the pondage required for firm power. (4) There
shall be no outlets below the dead storage level, unless necessary for sediment control
or any other technical purpose; any such outlet shall be of the minimum size, and
located at the highest level, consistent with sound and economical design and with
satisfactory operation of the works. (5) If the conditions at the site of a plant make a
gated spillway necessary, the bottom level of the gates in normal closed position shall
be located at the highest level consistent with sound and economical design and
satisfactory construction and operation of the works.
According to Pakistan the design of the dam permits India to potentially cause
a lot of harm, by storing water from the river during the dry season or during
hostilities. This can create situations of severe drought or extreme flooding of
Pakistani territory. Legally, this argument of the physical possibility of the violation
of the law has no ground in international law and has been clearly rejected by the
tribunal in Lake Lanoux.87
BHPP provides for huge gate structures or submerged gated spillways. The
gated structure, Pakistan contends, would provide India the capability to manipulate
the flow of water to the disadvantage of Pakistan by giving India the power to stop
water for about 27 days during December, January and February. Pakistan alleges that
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BHPP will stop the flow of water into its rivers; it will reduce the quantity of water by
7,000 cusecs per day. To the Note Verbale of August 7, 2003 sent by India to discuss
the issue at the government level, under Article VI of IWT, Pakistan put forward the
following three conditions: (1) All construction work on the project (BHPP) be
suspended pending amicable and satisfactory resolution of the issues raised by
Pakistan‘s commissioner; (2) On-site inspection by September 30 would be provided
to Pakistan‘s commissioner and (3) an agreement to amicably settle all issues
pertaining to the project to be reached by December 31, 2003.
―The conventional engineering view is that a diversion barrage or a run-of-the-
river hydroelectric project (unlike a dam and a reservoir) does not create any storage.
However, even run-of-the-river projects involve structures, and any structure on a
river does raise the water level and create a minimal storage. Pakistani concerns are
only partly about water sharing; they are more over security aspects. The Indian
position is that the security fears are misconceived, as India cannot flood Pakistan
without flooding itself first.
The first round of Indo-Pakistan talks on the BHPP issue took place in India in
October 2003. Pakistan‘s three-member technical expert team visited the dam site
after the talks. A secretary-level meeting also took place on January 4-6, 2005
between the two countries to resolve the issue. The Indian side addressed the specific
technical issues raised by Pakistan, made detailed presentations on the request by
Pakistan. Broadly, the issues that have come up in BHPP relates to ―provision of (i)
low-level intake, (ii) fixation of one low-level spillway crest to a higher level (for
release of flood waters) and (iii) reduction of the freeboard level of the dam without
compromising on the hydroelectric generation‖ But the stalemate continued as
Pakistani negotiators stuck to their objections against the design specifications of
BHPP.
On January 18, 2005, even before the talks were over, Pakistan formally
lodged a petition with the WB seeking the appointment of an NE under IWT as per
Article IX (2)(a). India had earlier termed this move as ‗premature‘ and ‗not justified‘
saying that the differences could have been sorted out ‗bilaterally‘ through further
technical level discussions by the two sides.
The contention of India is that the 450 MW power project does not propose to
store water and will not disrupt flows. Taking the cue from the fate of the Tulbul

160
project, India has refused to accede to Islamabad‘s request for stopping the con-
struction work till a mutually acceptable settlement was reached.
On May 10, the WB in consultation .with the governments of India and
Pakistan, reached an agreement on the appointment of an NE to address differences
concerning BHPP. Raymond Lafitte has been asked to make a finding on the
‗difference‘ between the two governments concerning the construction of BHPP.
Under the terms IWT, his determination will be final and binding. The NE for the first
time met the Indian delegation led by the water resources secretary and Pakistani
delegation led by the attorney-general in Paris on June 9 and 10 this year, to finalise
procedure of his proceedings. The procedure settled by the NE in the Paris talks
affords both the parties three occasions each to explain their respective stances. 88
The Bank, after consultation with the parties, appointed Raymond Lafitte,
Professor at the Federal Institute of Technology of Lausanne, Switzerland as the
neutral expert on 10 May 2005 to determine the claims. Pakistan‘s contentions were
based on the following points:
1. India‘s calculations of the design, flood and height of the dam (freeboard) 4.5
metres are excessive, and provides India with the handle to artificially raise
the water level in the operating pool above the full pondage level.
2. India‘s calculations of the required pondage of 37.5 mcm is too high as the
correct pondage should be 6.22 mcm.
3. The level of intake for the power plant, 818 metres, is not at the highest level
as required by the Treaty.
4. Conditions at the Baglihar site do not require a gated spillway, and the gates of
the spillways were not at the highest level. The location of the spillway gate,
that is 27 metres below the dead storage level (the level beyond which water
cannot be drawn down or depleted except in cases of emergencies), is
unnecessary.
There are apprehensions that the project can wreak havoc in Pakistan if water
supplies are suspended for 28 consecutive days during December, January and
February as it would affect agriculture and other requirements at Marala Headworks.
Pakistan also apprehends that the project may lead to inundation of the area above
Marala Headworks due to the sudden synchronized releases from Dulhasti, Salal and
Baglihar reservoirs.89

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Neutral Expert’s Findings on Baglihar:
On February 12, 2007, Professor Raymond Lafitte, the Neutral Expert, gave his
‗determinations‘ on the points of difference referred to him as follows: (a) For the
‗probable maximum flood‘ (PMF), he has considered it prudent to accept the Indian
figure of 16,500 cumecs.
(b) He has not accepted Pakistan‘s position that gated spillways are not necessary. He
points out that for a PMF OF 16,500 cumecs, the standard modern practice would be
to provide gated spillways.
(c) He has not accepted Pakistan‘s contention that the bottoms of the spillway gates
are not at the highest possible level. Having regard to the two purposes of sediment
control and the evacuation of the design flood, and in accordance with international
practice and the State of the art, he finds the placement of spillway gates acceptable.
(In fact, he feels that they should be 8 m lower.) He has recognized the need for
proper reservoir maintenance. As for the placement or these outlets below the dead
storage level, he has pointed out that while the portion below the DSL cannot be used
for operational purposes (i.e., for power-generation), there is no prohibition of its use
for maintenance purpose. He has stressed that maintenance is an absolute necessity.
(d) As against the Indian design of a free board of 4.5m and the Pakistani proposal of
1.5m, he has recommended a free board of 3m (i.e., a reduction of dam height by
1.5m; India had in fact volunteered a reduction of 1m.)
(e) He has not accepted the Pakistani calculation of a pondage of 6.22mcm, but has
found the Indian design of 37.7mcm excessive, and has suggested a reduction to
32.5mcm. Correspondingly, he has proposed that the DSL be raised by 1m.
(f) He has suggested that the placement of the water intake for the power plant be
raised by 3m. He has stated that certain steps can be taken to take care of the vortex
problem.
India has reason to be somewhat more satisfied than Pakistan with these findings, as
the Project per se stands vindicated, and the changes suggested are relatively minor.
On the ‗differences‘ referred to the NE, his findings are final and binding. If Pakistan
wishes to invoke a Court of Arbitration, it will have to formulate a ‗dispute‘ afresh. If
it does, the technical determinations of the NE will be binding even on the Court of
Arbitration. 90
The day the determination was received, Pakistan called it a ‗great victory‘,
claiming that by accepting three out of four objections to the dam built by India. India
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claimed victory by claiming that the changes recommended by the neutral expert are
minor and that the power-generation capacity of the project would not be affected.
Pakistan is ostensibly not satisfied by the neutral expert‘s determination on the gated
spillway count. Both Federal Minister for Water and Power Minister Liaqat Ali Jatoi
and Indus Waters Commissioner Jamaat Ali Shah‘s dissatisfaction is well known.
Liaqat Jatoi also suggested that Pakistan may avail of its right to go into the
appeal against the verdict. There is serious consideration in the official circles of
Pakistan as to how to challenge the neutral expert‘s determination on the spillway in
an arbitral tribunal, and to maintain simultaneously that the other findings remain
binding. Pakistan undoubtedly fears that the verdict may amount to a carte blanche for
India to build more dams. This could potentially be a source of more tension between
the two neighbouring countries. India, on the other hand, takes the award as a
precedent to be followed in all its other water disputes with Pakistan.
The President of the World Bank, James D. Wolfensohn, before appointing the
neutral expert left no ambiguity when he said that the verdict of the expert would be
‗binding‘ on the parties.91 For Pakistan the (non-appealable) Baglihar verdict was a
huge blow because it reinterpreted the IWT to remove the fundamental physical
protection (limits in manipulable storage) which Pakistan had against the creation of
an Indian ability to seriously manipulate the timing of flows of water into Pakistan.
From the Pakistan perspective, salt was rubbed into this raw wound when India did
not (in Pakistan‘s view) comply with the IWT-specified process for filling Baglihar.92
4.6.4 Kishanganga:
The Kishanganga project is located about 160 kilometers upstream of
Muzaffarabad and involves diversion of Kishanganga or Neelam River, as is known
in Pakistan, to a tributary, Bunar Madumati Nullah of the River Jhelum through a 22
kilometer tunnel. 93 In India the westward-flowing Jhelum river has two main
tributaries. The northern tributary, which flows at a substantially higher elevation in
the foothills of the Himalayas, is the Kishanganga /Neelum river. The southern
tributary, which flows at a much lower elevation, is the Jhelum itself. The two
tributaries join just after they reach Pakistan. This odd configuration offers a unique
opportunity - build a barrage across the Neelum, build a tunnel down to the Jhelum,
put a power station at the bottom and generate substantial amounts of power. There
are two obvious sites where this can be done - one upstream in India and one
downstream in Pakistan.
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 The engineers who drew up the iwt were well aware of these possibilities and
stipulated that India could build its project only if there is no existing use, which will
be affected in Pakistan. India is now building the ―eastern scheme‖ (the 330 MW
Kishenganga project) while Pakistan is building the ―western scheme‖ (the 1,000 MW
Neelum-Jhelum project). The immediate stakes and investments are large -
approximately $350 million in India and $1,000 million in Pakistan. Disillusioned
with the neutral expert process after Baglihar, in May 2010 Pakistan declared this to
be a ―dispute‖ to be taken to a Court of Arbitration. The situation is further
complicated by the fact that India has a series of hydropower projects being planned,
designed and constructed on the headwaters of Pakistan‘s three rivers, which will
create something like 40 days of live storage on the Chenab alone. From the Pakistani
perspective, this ability to hold and release water constitutes a serious threat to water
security in Pakistan.94
It is thought that Kishanganga will interfere with the Neelum-Jhelum by
diverting water on a scale that is greater than is allowed under the IWT. The
contentious part of the Kishangnga project is the diversion tunnel that will divert
water into the Wullar lake. Some analysts argue that the completion of the project
would reduce Pakistan‘s water supply by 8-9 percent, some argue that there will have
significant impacts upon Azad Kashmir. 95
Pakistan‘s objection is that the project will have adverse effects on the
Neelam- Jhelum link project, which it initiated in 1988. A second diversion of the
water of Kishanganga River to Jhelum would ruin the Neelam valley in Pakistan.
Pakistan feared that the project could reduce its total water availability from an
estimated 154 MAF to about 140 MAF, a shortage of about 8-9 per cent. Pakistan
expected to reduce the flow of water in the River Jhelum in Azad Kashmir by 27 per
cent, affecting power generation capacity of the 1.6 billion Neelam-Jhelum
hydropower projects in Pakistan.
By May 2004, India confirmed that it had started constructing some
components of the project. In April 2006, India offered to amend this project and
submitted a revised plan in July 2006. In the revised plan, India agreed to convert the
storage and power generation project into a run-of-the-river project and construct
pondage in accordance with the Indus Waters Treaty. Nonetheless, the Pakistan
declined the plan on the plea that the project still had objectionable aspects. Pakistan
communicated these objections to India later in a detailed report. The issue figures on
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the agenda of talks every time between the two countries; however, bilateral talks
have so far proved futile on reaching a settlement. 96
The arbitral court at Hague, Netherland accepted Pakistan‘s case against
India‘s Kishanganga Dam project. The Court has accepted Islamabad‘s application for
a stay-order on the Kishanganga Dam and ruled that, until a final settlement reached
between India and Pakistan. New Delhi is not allowed to resume construction. 97 Till
date this dispute is not resolved.

4.7 Evaluation of the Treaty

The Indus Water Treaty 1960 is criticized in both the countries. It is
considered as a successful treaty for the conflict-resolution between the two countries
that have otherwise been locked in conflict. The treaty remained in place despite the
three wars. Though the people of both countries criticize the Treaty, still it is
relevant. The Treaty has some causes of the opposition as well as some factors of its
survival.

4.7.1 Causes of the Opposition to the Treaty:

i) Water Sharing:
Indus Water Treaty Myth: According to Haris Gazdar, Indus Treaty is a
myth. ―A myth has grown that the IWT is a model of good neighbourliness in an
otherwise conflict-ridden bilateral relationship. It is common for contemporary com-
mentators to repeat analyses such as, ―the IWT is perhaps the most successful con-
fidence-building measure (CBM) between the two countries [having] remained intact
all these years, surviving two wars and several phases of conflict‖. Such judgments
are about the political and technical basis of the IWT. The admirers of the treaty
appear to be unaware that the terms of the treaty actually require virtually no
cooperation between the two parties.‖ 98
Ramaswamy Iyer argues, ―the thrust of Haris Gazdar‘s article is that the Indus
Treaty is an ‗unequal‘ one; that Pakistan has failed to look after its riparian rights and
entitlements; that the division of the waters was more or less on the lines sought by
India. In appearance, it is a scholarly paper, but it fails to rise above a nationalistic
and partisan approach.‖ In India, many feel that the allocation of 80 per cent of the
waters to Pakistan and 20 per cent to India was an unfair settlement. It is foolishly
accepted by the Indian negotiators; and many in Pakistan argue that the territories that
165
went to India under Partition were historically using less than 10 per cent of the
waters, and that the Treaty was generous to India in giving it 20 per cent of the
waters. Both are fallacious arguments.
According to Iyer, Haris Gazdar may be surprised to know that his criticisms
of the Treaty from the Pakistani point of view (unequal, poorly negotiated, negligent
of riparian rights, not in the national interest, etc) will be fully endorsed by a strong
body of opinion in India, but from exactly the opposite point of view, namely, the
Indian one! There are many in India who feel that the Treaty is unfair to India, that
our negotiators did a bad job, that they gave away far more water to Pakistan than that
country was entitled to under any fair sharing principle, and that the Treaty should be
repudiated or renegotiated. When such voices were raised in 2002, Ramaswamy Iyer
wrote against them. He argued that when a Treaty emerges from prolonged inter-
country negotiations by teams acting under governmental briefing, and the Treaty is
approved and signed at the highest levels, it must be presumed that it was the best
outcome that could be negotiated under the given circumstances, and that we are then
precluded from saying that it was unfair, unequal, etc.99 Gazadar characterizes the
treaty as a myth. However, the international view of the Treaty is as a great example
of successful conflict-resolution.
ii) Jammu and Kashmir:
Haris Gazdar argues that pending the settlement of the Kashmir dispute, India
actually had no riparian claim on the western rivers to begin with. 100 According to
Ramaswamy Iyer, Haris Gazdar puts forward the strange proposition that given the
disputed nature of Jammu and Kashmir, India had no riparian rights at all over the
western rivers that flowed through that territory, and that only the eastern rivers were
up for sharing! In any case, the two governments did negotiate on the Indus system
including both the western and the eastern rivers and arrived at an allocation that has
been enshrined in a Treaty, and that is an implicit recognition of Indian rights. 101
All those projects are in the state of Jammu and Kashmir. There is much un-
happiness in the state at the fact that the restrictions placed on India in relation to the
western rivers make it virtually impossible for J & K to derive any benefits by way of
irrigation, hydroelectric power, navigation, from the waters of the Jhelum and Chenab
rivers. Successive J & K governments and legislatures have complained that the treaty
did not take care of the interests of the state. That feeling is shared by the people,

166
media, academics and others in the state. From time to time there have even been calls
for a scrapping of the treaty.102
J & K has huge hydro potential that needs to be exploited for the benefit of the
state and the country as a whole. There is much unhappiness in the state regarding the
restrictions placed on the western rivers to derive limited benefits by way of agri-
cultural use and generation of hydroelectric power. It is because of this realisation that
a number of political leaders and legislators in J & K have pointed out the huge loss
the state is suffering annually. On April 3, 2002, the J & K assembly cutting across
the party affiliations called for a review of IWT. 103
iii) Adversarial Situation Created by Treaty:
Pakistan is apprehensive of the structures in question enabling India either to
reduce water flows to Pakistan or to release stored waters and cause floods. The
Pakistani objections are thus partly water-related and partly security-related. The
Indian position is that the security fears are misconceived as India cannot flood
Pakistan without flooding itself first and that its capacity to reduce flows to Pakistan
is very limited.104
iv) Divergent Approaches:
The Indian engineers would tend to plan and design techno-economically
sound projects that would yield the best benefits in the given physical circumstances.
(Fortunately, the need for techno-economic soundness is recognised in the treaty.) On
the other hand, in their examination of the Indian plans and designs, the Pakistani
engineers with protecting Pakistan‘s interests, would tend to start from the treaty
provisions and limitations as the governing and paramount considerations, and treat
techno-economic considerations as secondary. They may possibly be negatively
inclined and may try to find grounds for rejecting the Indian proposals. They may
suggest changes, modifications or alternatives that may appear techno-economically
less sound or less attractive to the latter.
Pakistan tends to accuse India of planning works that are violative of the
treaty, withholding information, and not cooperating in a resolution of the difference,
and India complains about what it perceives as Pakistan‘s negativism and deliberate
obstruction of any effort by India to utilise even the limited rights given to it on the
western rivers.
There is a further political dimension to these differences. Pakistan is perhaps
not keen on letting these projects go forward because (a) they are in what it regards as
167
disputed territory, and (b) the benefits of the projects would go to J & K under Indian
auspices. Hence, (presumably) the stalemate. Tulbul, Baglihar, etc, might not have
proved so difficult to resolve if they had been located not in J & K but elsewhere.
Pakistan allowed to Salal proceed under certain conditions, but not the Baglihar or
Kishenganga projects.105
v) Differences over Projects:
The Pakistani position is that these projects constitute violations of the treaty
by India. India denies Pakistan‘s allegations. The differences over these projects arise
from different approaches to, and interpretations of, various provisions of the main
text of the treaty, but even more, of the detailed provisions and specifications
contained in the numerous Annexures and Appendices to the treaty. The Article III (4)
of the treaty basically precludes the building of any storages by India on the western
rivers, except to a limited extent carefully laid down in Annexures D and E, which
also specify technical conditions relating to engineering structures and features, such
as limits on raising artificially the water level in the operating pool, pondage levels,
crest level of the gates (where a gated spillway is considered necessary), location of
intakes for the turbines, and so on.
Ramaswamy Iyer argues that one party can claim to be in full conformity with
the criteria laid down in the treaty, and the other party can say that this is not the case.
That is exactly what has been happening. The technical divergences between the two
sides were doubtless rendered more intractable by the bad political relationship
between the two countries in recent years. He explains two reasons of differences that
were inherent in the nature of the treaty.
vi) Technical Treaty: The first reason is the density of technical details in the treaty,
which provides ample opportunities for differences among engineers. It is interesting
to compare this treaty with the Mahakali treaty between India and Nepal, or the
Ganges treaty between India and Bangladesh. The latter two are relatively non-
technical documents that are easy to understand, even for non-engineers. On the other
hand, while the main part of the Indus treaty is fairly slim and not too dense, the devil
is in the detail: the treaty is accompanied by several Annexures and Appendices of a
highly technical and opaque nature. It is these Annexures and Appendices that
determine the overall character of the treaty. Facetiously speaking, one could say that
this is not a treaty between two governments, but a treaty between two sets of
engineers. The engineers on the two sides can have a field day disagreeing on the
168
meaning and precise application of the various technical features and criteria that the
Annexures and Appendices contain. The treaty provides a happy hunting ground for
technical disagreements.
The differences are over ‗run-of-the-river‘ projects and ‗storages‘. The ‗run-
of-the-river‘ means the absence of storage. The treaty prohibits storages by India on
the western rivers except to a limited extent, but permits run-of-the-river schemes
subject to certain conditions. The conventional engineering view is that a diversion
barrage or a run-of-the-river hydroelectric project, unlike a dam and a reservoir, does
not create any storage. However, even run-of-the-river projects involve structures, and
any structure on a river does raise the water level and create a minimal storage. The
question then becomes one of the level and acceptability of that storage, and a
difference of opinion on this is possible, and has, in fact, occurred. Even a run-of-the-
river project can be a big project involving a big dam. What India regards as ‗run-of-
the-river‘ could be in Pakistan‘s view a ‗storage‘ project.
vii) Nature of Division under Treaty: The second reason is the nature of the division
of waters under the treaty. Having allocated the western rivers to Pakistan, the treaty
aims at restraining and not facilitating Indian projects on those rivers. It is essentially
negative towards Indian projects - particularly, big projects - on the western rivers,
with some limited permissive provisions. India wants to use those permissive
provisions to the full. It is aware of the dissatisfaction in the state of J & K, and would
like to remove that grievance. It, therefore, formulates projects such as Salal, Tulbul,
Baglihar, Kishenganga, and so on. However, the treaty requires India to send all the
technical details of such projects to Pakistan in advance, and that is when the trouble
starts. The treaty gives Pakistan virtually a veto power over Indian projects on the
western rivers, which Pakistan tends to exercise in a stringent rather than
accommodating manner.106
viii) Terrorism:
The dissatisfaction in some quarters in India with the water-sharing
proportions, and the sense of frustration at the stalling of projects, were aggravated in
2002 by the harm that Pakistan was perceived to be inflicting on this country through
what came to be known as ‗cross-border terrorism‘. 107 In India, after the terrorist
attack on Uri Army base on September 18, 2016, the demand is made not only to
abrogate the Indus Treaty, but also to withdraw the Most Favoured Nation status of
Pakistan.108 Indians want to scrap all types of ties.
169
4.7.2 Factors behind the Survival of the Treaty
i) Conflict Resolution:
The Treaty has acquired a reputation internationally as a successful instance of conflict-
resolution. The Indus Commission has been meeting regularly in either country, and the
working relationship between the engineers at the commission level is very cordial. Differences
do arise from time to time, but these usually get resolved within the framework of the Treaty.
109
The treaty has managed to survive three wars. The Indus Commission has
continued to meet even when the political relationship between the two countries was
extremely bad, and that at the working level the relationship between the officials of
the two countries has been marked by cordiality.
It has been argued that dividing the river-system into two segments was not
the best thing to do, and that the better course would have been for the two countries
jointly to manage the entire system in an integrated and holistic manner. However,
given the circumstances of Partition and the difficult relationship between the two
newly formed countries, it would have been naive to expect that such a joint
integrated cooperative approach would work.
There is no river-wise sharing. The joint integrated management of the
system as a whole was unavailable. Continuous sharing on each river with joint
monitoring arrangements and so on might have proved cumbersome, difficult and
productive of endless disputes.
ii) Irrigation of Punjab and Rajasthan:
Under this treaty India has limited rights on the western rivers and cannot
undertake projects on those rivers without providing all the details to Pakistan and
dealing with Pakistan‘s objections. Why did India put itself in that position? The
answer is that if Pakistan got the near-exclusive allocation of the three western rivers,
India for its part got the eastern rivers. This was important for the water needs of
Punjab and Rajasthan. As early as in 1953, many years before the treaty, thinking had
begun on the transfer of waters from the eastern rivers to Rajasthan through a canal.
In the 1950s again, Bhakra Nangal was already under construction. If the Ravi, Beas
and Sutlej had not been allocated to India, Pakistan would have had the usual lower-
riparian rights over these rivers, and would have had to be consulted about these
projects - and, would surely have raised objections. The projects might not have come
up at all, or might have had to be substantially smaller. One might say that the
allocation of the eastern rivers to India under the Indus treaty removed Pakistan from
170
the picture in relation to these rivers, and retrospectively legitimised the Bhakra-
Nangal and Rajasthan canal projects. 110
In Pakistan, it is often argued that this represented an act of generosity on its
part, as the portion of territory that went to India was historically using only 8 per cent
of the Indus waters. Indian sources put it at a higher figure, but it seems clear that the
allocation of Indus waters to India was higher than the level of past use. This was
because India, in putting forward its claims to the waters, argued for a substantial
allocation to the desert state of Rajasthan. Even as the negotiations were proceeding,
Indian planners began to initiate action towards the eventual full utilisation of the
three eastern rivers. Links between rivers to pool the waters of all three rivers together
were planned. In 1953, thinking began on a scheme that later became the Rajasthan
Canal Project. In anticipation of the allocation of waters, work began on Bhakra-
Nangal. In 1955, the central government brought about an agreement on the allocation
of Ravi-Beas Waters to Jammu and Kashmir, Punjab and Rajasthan. Thus, the
allocation of eight MAF to Rajasthan goes back to 1955, and was linked to the
negotiations with Pakistan. Without that component the Indian share in the Indus
system might have been smaller.
What the situation would have been (a) if there had been no Indus Treaty, or
(b) if the treaty had envisaged a sharing between the two countries on each of the six
rivers. In either case India‘s rights as the upper riparian on the Ravi, Beas and Sutlej
would have been circumscribed by Pakistan‘s rights as the lower riparian. Bhakra-
Nangal might have required Pakistan‘s concurrence. It might not have been built or
might have been a smaller project. The total availability of waters from the three
eastern rivers to Punjab might have been less than it is now. It was the exclusive
allocation of the three eastern rivers to India under the treaty that removed the
constraint of lower-riparian rights on Indian use. Punjab benefited by this. However,
this would not have come about if Rajasthan‘s needs had not been added to the
arithmetic. It follows then that Rajasthan‘s claims on these waters are not riparian
claims, but derive from the case that was built up for the Indus negotiations. 111
iii) Role of World Bank:
The WB is not a guarantor of IWT, but a signatory specified purposes. The
many of the purposes for which the WB signed IWT have been completed. There
were now three remaining responsibilities for the WB under IWT relating to the
settlement of differences and disputes. One is a role for the WB in the appointment of
171
an NE. The second residual responsibility of the WB is the management of a trust
fund to meet the expenses of the NE.F inally, the WB has the responsibility to
establish a CoA.112
iv) Difficult to Punish Pakistan:
As for the ‗punishment‘ argument, two questions arise: would it be right to abrogate the
Treaty as a measure of punishment, and what punishment can be inflicted by the abrogation?
The punishment argument might have been difficult to counter if any other kind of treaty had
been involved, but a treaty on water is different. Even if there were no treaty, an upper riparian
simply cannot cut off river waters flowing to a lower riparian. Under various international
conventions an upper riparian has obligations in this regard to a lower riparian. The abrogation
meant the disappearance of the restrictions imposed by the Treaty on India. India can build of
storages on the western rivers. Such projects take years (10 or even 15) to build. The waters of
these mighty rivers cannot be stopped or diverted instantly. No immediate punishment of
Pakistan would have been possible. India cannot erect instant barriers across the three western
rivers; they will continue to flow into Pakistan. Even the eastern rivers (allocated to India) flow
into Pakistan and then into the Arabian Sea as parts of the Indus system. It follows that the
abrogation of the Treaty by India, while securing for India a great deal of international oppro-
brium, would not have been a potent weapon in our hands. Iyer argues that, ―the suggested
abrogation of the Indus Treaty did not seem a particularly powerful measure. Both on
moral/legal grounds and on practical ones, it did not seem a very good idea.‖113
v) Riparian Rights:
Siyad argues that those who argue for the abrogation of IWT should keep in
mind that even in the absence of a bilateral treaty; the riparian states have got some
binding customary international law obligations. Nevertheless, that customary
obligation will never ever compel the upper riparian to have the same pattern or
scheme of sharing as envisaged under IWT. According to him the Gabcikovo-
Nagymaros decision is instructive for three reasons. First, the ICJ applied the custom-
ary international law of watercourses -equitable utilisation - rather than the bilateral
treaty between the parties. Second, it treated UNC ―as evidence of the principle and
modern development of international law.‖ which binds all states, treaty or no treaty,
though UNC was not then entered into force. Third, it gave primacy to the principle of
equitable utilisation over the principle of no-harm. 114

172
vi) Difficult to Abrogate the Treaty:
There were several reports and interviews in the media about whether the Indus Treaty
1960 was likely to be, or should be, abrogated. Abrogation of the treaty is out of the
question, but re-negotiation is a possibility. India could seek a water-sharing on the
western rivers. That would give India a position vis a vis the western rivers which it
does not have at present. However, there are two difficulties here. First, Pakistan may
not agree to a re-negotiation, or if it does, it may want to improve its position on the
western rivers. Some Pakistani writers have raised questions about India‘s right to talk
about the rivers that flow through J & K, though the Indus treaty implicitly recognises
this; that question too may get raised in the new negotiations. Secondly, India cannot
expect to restrict the re-negotiation to the western rivers; the eastern rivers will also be
a part of the agenda. If India wants to seek more rights on the western rivers, it may
have to give Pakistan some rights on the eastern rivers. Iyer raised relevant questions-
Is that feasible at this stage? Would that not open a Pandora‘s Box?
The argument was that India should take advantage of the current difficulties with Paki-
stan to get out of the Treaty. That is a wholly irresponsible and indefensible argument. If a treaty
can be resiled from because one party is dissatisfied with it, then no treaty will have any force or
sanctity. There is no reason to believe that the interests of J & K were not kept in view while
negotiating the Treaty. The negotiations were long and hard, and the Indian team did its best
under whatever briefing it had from the government. The Treaty was approved and signed at the
highest level. Thereafter, it is simply not open to us to say that it is disadvantageous to India. It is
possible to argue that we have not fully used even the leeway allowed by the Treaty, but leaving
that aside, and assuming that J & K does have a grievance, that does not warrant the abrogation
of the Treaty.
That is what India did in the case of the Salal project. That approach has doubtless run
into difficulties with other projects, but we must keep trying and waiting for the atmosphere to
change. Treaties cannot be broken because we are dissatisfied. In the case of the Ganga Treaty
with Bangladesh, there is a measure of dissatisfaction in Bihar: should that Treaty too be
abrogated?
The Indus Treaty was mediated by the World Bank and that body is also a signatory.
The reactions of the World Bank to the abrogation of the Treaty would have been very adverse,
as would have been the reactions of the international community in general. From the position
of being praised for the steadfast maintenance of the Treaty, India would have fallen into that of
incurring international displeasure for violating a solemn covenant. Other countries with which
173
India has similar treaties (Nepal, Bangladesh) might have found their faith in India shaken and
become apprehensive about their own treaties with u India.
India would therefore have paid a fairly heavy price for the abrogation, if it had chosen
that path: and to what end? As mentioned earlier, even in the absence of the Treaty, there are
international conventions on what an upper riparian can or cannot do in relation to waters
flowing to a lower riparian: the abrogation of the Treaty would not have made India a
completely free agent.115
The settlement included the provision of international financial assistance to Pakistan
for the development of irrigation works for utilising the waters allocated to it, and India too paid
a sum of approximately Pounds Sterling 62.06 million in accordance with Article V of the
Treaty.116
vii) Difficult to Re-negotiate:
B. G. Verghese wrote on ‗Indus II‘ in ‗The Tribune‘ (May 25-26, 2005).
Verghese cites Article XII which talks about modifications to the treaty, but that
article has no great significance: it merely says that the treaty can be modified by
another treaty. Essentially what this means is that if you want to bring about a change
you have to negotiate a new treaty. Even without Article XII, that could have been
done. My point is that a new treaty of cooperation would have to be fundamentally
different from the existing treaty, of division and cannot be built on it. Verghese refers
to Article VII about ‗Future Cooperation‘, but what kind of cooperation does the
article envisage? It begins by referring to ―common interest in the optimum
development of the rivers‖ and of cooperation towards that end, but proceeds to such
instances of cooperation as the establishment of hydrological and meteorological
stations and sharing of costs on drainage works.
If the two countries were to agree to undertake a certain project (say Tulbul or
Baglihar) jointly, does that mean that the restraint imposed by Article III (4) of the
treaty on the building of storages by India on the western rivers, and the detailed
provisions of Annexures D and E stipulating conditions about pondage, placement of
spillway gates, and so on, will not apply to such projects? Two isolated sentences
about ‗cooperation‘ and about ‗undertaking engineering works‘ cannot change the
entire nature of the treaty. The existing Indus treaty offers no scope for the kind of
‗Indus II that Verghese has in mind. If we want a new relationship between the two
countries on the Indus a totally new treaty will have to be negotiated; it cannot grow

174
out of the existing treaty; and questions will immediately arise about the coexistence
of two divergent treaties.
Iyer says that ―any negotiations on an ‗Indus II‘ will provide an opportunity
for a reopening of all the old settled issues, and the various difficulties mentioned
earlier will arise. Perhaps when the Kashmir issue has become a thing of the past. It
might be wiser to leave the existing treaty as it is, and try to bring about a more
constructive and cooperative approach to its working.‖ 117
If renegotiation took place, we cannot avoid the involvement of other
countries. According to Hirsch Abraham, in order for river disputes to be permanently
settled, there must be agreement among all the partners of the river basin. So far,
however, no basin-wide negotiations (except, of course, on bilateral basins) have
taken place. Afghanistan and Tibet kept aside of the Indus Basin negotiations.
Chinese diversion of the waters of the upper Indus will have a much more crippling
effect. Chinese territorial claims with respect to adjoining Kashmiri areas also may
further complicate matters. 118 In the talks, along with Pakistan there will be
participation of China, Afghanistan. It will be complicated and very country will
demand their share.

4.8 Conclusion
The Indus Civilization is one of the ancient civilizations. The Indus River
flows a distance of 1,988 miles (3200 km). The people of four states of Pakistan and
four states of India are dependent on the Indus system. The water availability is a core
question for the two countries. The Indian government developed various project for
the irrigation of Punjab, Haryana, and Rajasthan states The Pong Dam on the Beas
River, the Indira Gandhi Canal from the Harike Barrage on the Ravi, the Beas-Sutluj
Link Canal, and the Bhakra-Nangal Dam project on the Sutluj are major projects.
Inter-state river water disputes are resolved by the 1956 Act. Article 262 of the
constitution of India provided for Parliamentary legislation for the adjudication of
inter-state river water disputes.
In 1947 when the line dividing the former Province of Punjab was drawn, it
cut right across Indus system. India was given control over the headworks of the
canals. The proposed Kalabagh Dam on the Indus River in Pakistan became
controversial. It is under consideration since about 1953. President Pervez Musharraf
attempted to mobilize national support behind a plan to finish construction of three
175
dams—Kalabagh, Bhasha, Akhori, and Skardu/Katzara- by 2016. Each dam has
ardent advocates along with equally ardent opponents. In Pakistan, the leaders of the
provinces of Balochistan, NWFP and Sindh view water resources policy as unduly
skewed towards the interests of Punjab.
After the partition, India (Panjab) stopped water flow of the eastern rivers.
Negotiations failed between the two countries. In 1951, an article written by Mr.
David Lilien-thal (former Chairman of the Tennessee Valley Authority) appeared in a
popular American magazine. With the assistance of World Bank‘s good offices ―The
Indus Water Treaty 1960,‖ was signed in Karachi.
The IWT is a complex instrument comprising 12 articles and 8 annexures.
The ‗Treaty‘ allocated the waters of three Western Rivers (Indus, Jhelum and Chenab)
to Pakistan and three Eastern Rivers (Ravi, Beas and Sutlej) to India. The treaty
allocated 80 per cent of the waters of Western Rivers to Pakistan and 20 per cent to
India. It was decided that India should pay the cost of constructing the replacement
link canals in Pakistan.
After the Indus Treaty, Pakistan opposed India‘s Salal Project, Tulbul/Wullar
navigation project, Baglihar project, Sawalkote hydroelectric project and the
Kishanganga hydroelectric project, all located in J & K. The Salal Agreement signed
in April 1978.
In the dispute of Baglihar Hydropower Project (BHPP), the World Bank
appointed Raymond Lafitte as the neutral expert on 10 May 2005 to determine the
claims. On February 12, 2007, Professor Raymond Lafitte, the Neutral Expert, gave
his ‗determinations‘. He accepted India‘s contentions and allowed the project with
minor changes. Till date, the dispute over Tulbul/Wullar navigation project and
Kishanganga project are not resolved.
There is demand for abrogation of the treaty or re-negotiation on the water
sharing of the Indus basin. Abrogation or re-negotiation will be complicated. Though
the Treaty is criticized, still it is relevant.

176
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79
Ibid. pp. 49-50
80
Ibid. pp. 55-59
81
Ibid. pp. 60
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Ibid. pp. 62-63
83
Ibid. P. 64
84
Siyad A. C., Muhammed (2005). p. 3147
85
Hill, Douglas. (2008). pp. 69-70
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Mohanty and Khan (2005). p. 3156
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Khattak, Amer Rizwan (2008). World Bank Neutral Expert‘s Determination on Baglihar Dam:
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Iyer, Ramaswamy R. (2007). op.cit. pp.79-85
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Khattak, Amer Rizwan (2008). op.cit. pp. 96-98
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Briscoe, John (2010). p. 29
93
Kumar, Arvind. (2010). ‗Water in Indo- Pak Diplomacy‘. Third Concept. August. p.7
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Briscoe, John (2010). op.cit. pp. 29-30
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Hill, Douglas P. (2013). op.cit. p. 253
96
Kumar, Arvind. (2010). p.7
97
Tabassum, Shaista (2013). 'Should India and Pakistan Look Beyond IWT: Why and How?' in Nayak,
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Iyer, Ramaswamy R. (2005). ‗Indus Treaty: A Different View,‘ Economic and Political Weekly, Vol.
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Iyer Ramaswamy R. (2005). op.cit. p.1075
102
Ibid. p. 3142
103
Siyad A. C., Muhammed (2005). p. 3146
104
Iyer, Ramaswamy R. (2005). op.cit. p. 3143
105
Ibid. p. 3143
106
Ibid. pp. 3142-43
107
Ibid. p. 3142
108
The Indian Express, September 30, 2016
109
Iyer, Ramaswamy R. (2002). ‗Was the Indus Waters Treaty in Trouble?‘ Economic and Political
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Ibid. p. 3437
112
Siyad A. C., Muhammed (2005). op.cit. p. 3146
113
Iyer, Ramaswamy R. (2002). op.cit. p. 2402
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Siyad A. C., Muhammed (2005). op.cit. p. 3151
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Iyer, Ramaswamy R. (2002). op.cit. p. 2402
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Iyer, Ramaswamy R. (2002). op.cit. p. 2402
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Iyer, Ramaswamy R. (2005). op.cit. p. 3144
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Hirsch, Abraham M. (1956). op.cit. p. 217-18

179