Riparian Rights: a Case Study of India and Pakistan

Home , Balloki Headworks, Bara River, Ganji Bar, Gilgit River, Gomal River, Islam Headworks

RIPARIAN RIGHTS: A CASE STUDY OF INDIA AND PAKISTAN

By Muhammad Nawaz Roll No. PKS-08-03

Supervised By Prof. Dr. Muhammad Farooq

A thesis submitted in fulfilment of the requirement for the Degree of Doctor of Philosophy in Pakistan Studies

Department of Pakistan Studies, Bahauddin Zakariya University, Multan, Pakistan

Dedicated to

My Parents

Abstract

Fresh water is vital to the economies and societies of countries, especially to those which lie in the arid climatic regions. The issue of water scarcity in certain regions of the world has led to an expectation of international conflict based upon the increasing competition for fresh water. One example is the confrontation between India and

Pakistan over shared waters of the Indus River System. This study aims to enhance our understanding regarding the Indus Water dispute. Immediately, after the partition of Indian sub-continent into two independent and sovereign states of India and

Pakistan in 1947, water became a focal point between the two nations. Being an upper riparian and having the control of headworks, India stopped water into all canals flowing into Pakistan. This action made Pakistan more conscious about its water rights because the Indus River System is source of life for Pakistan. In this context, this study traces the origin of water dispute between Pakistan and India from the partition of the Punjab. It further explores how water dispute was settled under the auspices of the World Bank and Indus Water Treaty was signed in 1960. It also provides a detailed picture of consequent developments of water infrastructure in the region and emerging challenges to Indus Water Treaty. The study also discusses various theories and principles which played an important role in the development of international law on the non-navigational uses of the international rivers and provides its present status. It also highlights the role of various organisations in the codification of international water law for non-navigational purposes and explores relevance between international water law and Indus Water Treaty.

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Acknowledgements

My foremost praise goes to Allah Almighty, my Lord and Creator Who empowered and enabled me to complete this research. All my respect goes to the Prophet of mercy, Hazrat Mohammad (Peace be upon Him), who emphasised the significance of knowledge and research.

I am greatly obliged to my supervisor Professor Dr. Muhammad Farooq for his support, guidance and feedbacks throughout my PhD research work. Undoubtedly, this work would not have been completed without his cooperation. I have been exceptionally fortunate to work under his supervision. I am equally grateful to the teachers and staff of the Department of Pakistan Studies, Bahauddin Zakariya

University Multan for their support. Particularly, Dr. Muhammad Shafiq Bhatti and

Dr. M. Javed Akhtar Salyana from whom I benefitted a lot during my course work. I am thankful to Syed Jamat Ali Shah (Former Indus Water Commissioner of Pakistan),

Hafiz Zahoor-ul-Hassan Dahr (Chairman Indus Water Treaty Council), Dr. Shaheen

Akhtar (NDU, Islamabad) and Dr. Rashid Ahmad Khan for their valuable cooperation and support.

I would like to thank the countless people who in some way or the other contributed to my work especially, from India. Their contribution, no matter how small, carries weight. My deepest gratitude goes to my parents and my family members; I could not have completed my work without their love and encouragement.

Finally, I would like to thank my wife and kids who shared all the sufferings that I bear while completing this thesis.

TABLE OF CONTENTS

Abstract iii Acknowledgements iv Table of Contents v List of Figures and Tables ix List of Abbreviations x Chapter: 1 Introduction 01 1.1 Prologue 01 1.2 Relevance of the Study 10 1.3 Research Methodology 11 1.4 Literature Review 12 1.5 Structure of the Thesis 21 Chapter: 2 International Water law 24 2.1 Introduction 24 2.2 International Water Law: Theories and Doctrines 25 2.2.1 Absolute Territorial Sovereignty 25 2.2.2 Absolute Territorial Integrity 26 2.2.3 Limited Territorial Sovereignty and Integrity 27 2.2.4 Community of Interests 29 2.3 Principles of International Water Law 30 2.3.1 The Principle of Reasonable and Equitable Utilisation 30 2.3.2 Obligation of Riparian States Not to Cause Significant Harm 31 2.3.3 Principles of Prior Notification, Negotiation and Consultation 31 2.3.4 The Principles of Information Exchange and Cooperation in International River Basins 32 2.3.5 Principle of Peaceful Settlement of Disputes 33 2.4 Development and Codification of the Law on Non- Navigational Uses of the Waters of International Watercourses 33 2.4.1 The Institute of International Law (IIL) 35

2.4.2 International Law Association (ILA) 36 2.4.3 The International Law Commission (ILC) 42 2.5 Conclusion 46 Chapter: 3 Water Resources of the Indus Rivers Basin 51 3.1 Introduction 51 3.2 Physiography of the Indus River Basin 55 3.3 Hydro-Sources of Indus River Basin 58 3.3.1 The Indus River 63 3.3.2 The Jhelum River 65 3.3.3 The River Chenab 66 3.3.4 The River Ravi 67 3.3.5 The River Beas 68 3.3.6 The River Sutlej 69 3.3.7 The River Kabul 70 3.3.8 The Kurram and Gomal Rivers 71 3.4 Characteristics of Rivers Flows 71 3.5 Politics of the Water-Resources Development in Pre-Partition India 74 3.5.1 Introduction 74 3.5.2 A Historical Overview of Water Resources Development in the Indus Basin 77 3.5.2.1 Irrigation Development during the Muslim period 77 3.5.2.2 Irrigation Development in British India 79 3.5.3 Water Conflicts and Efforts of Resolution 88 3.5.3.1 Sutlej Valley Tripartite Agreement (1920) 92 3.5.3.2 Indus Discharge Committee (1921) 92 3.5.3.3 SVP Inquiry Committee (1932) 93 3.5.3.4 The Anderson Committee (1935) 93 3.5.3.5 Rau Commission (Indus Commission) 94 3.5.3.6 Draft Sindh-Punjab Agreement (1945) 96 3.5.4 The Issues related to the Water Conflicts 97 3.5.5 Conclusion 98

Chapter: 4 Partition of Punjab and Its Impact on Water Management 102 4.1 Introduction 102 4.2 The Punjab Partition 106 4.2.1 The Punjab Award (Radcliffe Award) 113 4.2.2 Punjab Partition Committee 116 4.2.3 The Tribunal Awards 117 4.3 Joint Statement of May 4, 1948 (Delhi Agreement) 122 4.4 Intervention of World Bank for Water Dispute Management 126 4.4.1 Road to the Dispute Settlement 128 4.4.2 Indus Basin Working Party 129 4.5 Conclusion 137 Chapter: 5 Indus Waters Treaty and Its Implementation 142

5.1 Introduction 142 5.2 Major Principles of the Treaty 143 5.2.1 Principle of Water Sharing 144 5.2.1.1 Provisions regarding Eastern Rivers 144 5.2.1.2 Provisions regarding Western Rivers 144 5.2.1.3 Provisions regarding Eastern Rivers and Western Rivers 145 5.2.2 Principles of Cooperation between the Parties 146 5.2.3 Mechanism of Dispute Settlement and Permanent Indus Commission 147 5.2.4 Principles of Financial Provision and Indus Basin Development Fund 149 5.3 Implications of the Treaty 151 5.4 Implementation of the IWT and Emerging Conflicts 159 5.4.1. Wullar Barrage Dispute 161 5.4.2 Baglihar Hydropower Project 163 5.4.3 Controversy over the Kishanganga Hydropower Project 167 5.5 Causes of Conflicts 172 5.6 Water Conflict and Indo-Pak Relations 174

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5.7 Challenges to the Indus Water Treaty 176 5.8 Relevance of Indus Water Treaty to International Water Law 180 5.9 Conclusion 190 Chapter: 6 Conclusion and Recommendations 195

Bibliography 208 Appendix A Text of the Joint Statement of April 4, 1948 220 Appendix B Letter from the World Bank President to the Prime Minister of Pakistan; 6 September 1951. 222

Appendix C Letter from the World Bank President to the Prime Minister of Pakistan; 8 November 1951. 224 Appendix D Letter from the World Bank President to the Prime Minister of Pakistan; March 13, 1952. 227 Appendix E Proposal by the International Bank Representative for a Plan for the Development and use of the Indus Basin Waters, 5 February 1954 228

Appendix F Aide Memoire, 21 May 1956 239

Appendix G Text of the Indus Waters Treaty 1960 243 Appendix H Chronology of Water Conflicts in the Indus Basin 263

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LIST OF FIGURES AND TABLES

List of Figures Fig. 3.1 Location of the Indus River Basin Fig. 3.2 Physiographic Regions of the Indus River Basin Fig. 3.3 Rainfall Regime Fig. 3.4 Indus River System Fig. 3.5 A Hydrograph of the Punjab Rivers Fig. 3.6 Canals of the Indus Basin up to 1960 Fig. 4.1 The Punjab after Partition (August 15, 1947) Fig. 5.1 Indus Basin Irrigation System with IBDF Works Fig. 5.2 Nature of Water Disputes in Post-Treaty Period Fig 5.3 Process of Arbitration Provided in the Indus Waters Treaty (1960) List of Tables Table 2.1 The states which signed approved, accepted, acceded to or ratified the UN Convention until 17th of August 2015. Table 3.1 Catchment Area of the IRB (in Sq. Miles) Table: 3.2 Absolute Maximum and Minimum Temperature for the Hottest Month, June/July, in Degree Cº. Table 3.3 Annual Average Rainfall in various parts of Pakistan (Millimetres) Table 3.4 Important Glaciers of the IRB Table 3.5 Average Annual Runoff of the Indus River System (1922-60) Table 3.6 Tributaries of the River Indus Table 3.7 Tributaries of the River Jhelum Table 3.8 Major Tributaries of the River Chenab Table 4.1 Muslim Majority Areas according to the Census of 1941 Table 5.1 Details of the Indians Projects on Western Rivers Table 5.2 Relevance of IWT with internationally accepted Principles of Water Management.

LIST OF ABBREVIATIONS

AIML All India Muslim League

MCM Million Cubic Metres

CBDC Central Bari Doab Canal

IBDF Indus Basin Development Fund

IBRD International Bank for Reconstruction and Development

ICA International Court of Arbitration

ICJ International Court of Justice

ILA International Law Association

IIL International of International Law

ILC International Law Commission

INC Indian National Congress

IRB Indus River Basin

IWT Indus Waters Treaty

KPK Khyber Pakhtunkhwa (Former North-West Frontier Province of Pakistan)

LBDC Lower Bari Doab Canal

LCC Lower Chenab Canal

LJC Lower Jhelum Canal

MAF Million Acre Feet

PIC Permanent Indus Commission

MW Megawatt

SVP Sutlej Valley Project

TCP Tipple Canal Project

UBDC Upper Bari Doab Canal

UCC Upper Chenab Canal

UJC Upper Jhelum Canal

UNCIW United Nations Convention on Non-Navigational Uses of the International Watercourses

UNGA United Nations General Assembly

UNO United Nations Organization

UNSC United Nations Security Council

WAPDA Water and Power Development Authority

Chapter 1

Introduction

1.1 Prologue

“Water is life”. It is essential to sustain life on the surface of the earth. History reveals that all great civilisations of the world have flourished along the banks of rivers. The ancient civilisations of the Egypt, Mesopotamia and Indus were evolved on the banks of the Nile, the Euphrates and the Tigris, and the Indus respectively. It is also an historical fact that some civilisations were vanished from the earth surface due to poor supplies or mismanagement of water (Farooq & Bhatti, 2010).

Water is the most important resource for human survival. Human life might be sustained without other resources such as minerals, fuels, forests and live-stocks but cannot without water. It is estimated that ninety seven percent of the total global water is contained in the oceans which is saline or salty in nature. Remaining three percent is fresh water, out of which about two percent is contained as ice on poles and 0.75 percent as groundwater. Out of the remaining balance of 0.25 percent, only 0.01 is available in lakes and rivers at any given time. Remaining 0.24 percent is found in the form of glaciers and snow (Grag, 2003: 1). Thus, only 0.01 percent of the total global water is available for all kind of uses.

Although, rivers had been used as a source of cooperation by the concerned nations in many parts of the world for a long time yet in the emergent situation the same have become catalysts of confrontation especially in the arid regions. The reason lies behind the emergent challenges of water security because all the regions are presently facing acute water problem of complementary nature i.e. the shortage of

1 water and an ever increasing demand of the same for agricultural, industrial and domestic purposes.

Inter-state conflict over the shared water is not a phenomenon of today.

Examples can be traced out even in the ancient history. The earliest familiar conflict took place around 2450-2400 BCE along the River Tigris between two Sumerian states, Lagash and Umma.1 Although, history has witnessed many other water conflicts between or among the nations yet from the beginning of 20th century, water has become more contentious issue. Many water experts are of the view that water scarcity may lead to severe water conflicts in various parts of the globe. Gleick (1993) states as we are approaching the 21st century, water and water-supply systems are rapidly becoming the instruments of war, objectives of military action and sources of politics among the states. The increasing demand for fresh water coupled with climatic variability makes supply and demand of water more complicated and problematic.

Water conflicts usually emerge when a riparian state attempts to utilise waters of a common stream in disregard of the rights and privileges of the other co-riparian nations. Any attempt of an upstream state to store or control water flows of an international river will surely produce hostility among the nations concerned. Due to this geographical fact, many disputes over the shared waters have emerged in the various parts of the world, for instance, the Nile in Africa, in Middle East, the

Euphrates and the Tigris basins and in Indian Sub-Continent, the Indus, the Ganges and Brahmaputra basins have become contentious. The countries of South Asian region heavily depend upon supply of fresh water for their survival but there is a large gap between their demand and supply which has led to many inter-state and intra-state disputes over the water utilisation.

On the other side many experts are of the opinion that water has also served as a catalyst for cooperation. It is true that water has become a scarce resource in various parts of the world but it does not mean that it always leads to confrontation. If there is a political will and motivation, these disputes can be avoided or resolved bilaterally or under the auspices of a third party. During the last five decades, 150 agreements and treaties were signed (UNO, n.d.) and Indus Waters Treaty is one of the best examples of water dispute settlement.

Growing population, economic development and urbanisation are leading many basin states towards the brink of water scarcity. According to the Falkenmark indicator2, water scarcity, usually, occur when per capita/per year availability of freshwater in a state falls below 1000 cubic meters. It is very important to note that both India and Pakistan are at the brink of water scarcity.

Currently, there are about 276 international freshwater river and lake basins3 around the globe (Centre for Law, 2014) which cover one-half of the land on the earth surface, generate sixty percent of the world’s freshwater and affect about forty percent of the global population. There are about 148 states which share the territory of such basins and 21 states lie completely within them (Transboundary Waters, 2015). Many states that share water resources of a basin also depend on those resources. So, size of share from a common water body affects country’s development directly or indirectly.

In case, common water body is a river then these effects can create conflicts which cannot be solved easily.

Rivers’ water plays a key role in the agricultural development, hydropower generation and other economic activities. As outcome of the economic development, improved living standard is demanding more water and it is putting pressure on this

3 finite resource. If there is an imbalance between supply and demand, disputes over water sharing are certain. This situation demands for judicial water apportionment and management.

To avoid or resolve international conflicts on transboundary rivers, several theories and principles can be traced out from the literature of international water disputes (Salman & Uprety, 2002):

 Absolute Territorial Sovereignty or Harmon Doctrine. It allows a state to

utilise an international river within its territory as it deems fit, without

considering any damage of its action to the other riparian nations. The

consequence of this principle is that it denies water rights of the lower

riparian.

 Absolute Territorial Integrity. This principle demands territorial

integration of all basin states. It advocates the rights of lower riparian.

 Limited Territorial Sovereignty and Integrity or Equitable Utilisation of

River Water. According to this theory, each basin state has a right to utilise

water of an international watercourse in such a manner that its utilisation

does not harm the interests of other riparian states. In essence, this

principle assures the equitable utilisation of an international watercourse.

 Community of Interests. This principle considers a river basin as an

economic unit. Under this principle, the rights and obligation over an

international river are vested in joint body of all basin states or its water is

apportioned among the riparian countries through a treaty or agreement or

according to proportionality.

In absence of any international law to govern the non-navigational uses of international watercourses, the aforementioned principles provided base to settle disputes among the riparian states. Although, it is claimed by the followers of each principle that their respective principle is based on rights and fairness but inconsistencies and contradictions appear when they are put into practice. Thus, a grave need for international law have been felt by the international community to govern the non-navigational uses of the international watercourses. In this regard, various organisations started work to codify such a law. Most important contributors are the Institute of International Law (IIL), International Law Association (ILA) and

International Law Commission (ILC).

Madrid Declaration (1911) and Salzburg Resolution (1961) were the attempts of IIL to codify principles governing the non-navigational uses of the international watercourses. Later on, the Madrid Declaration was incorporated in Helsinki Rules

(1966) and UN Watercourses Convention (1997) by the ILA and ILC respectively.

Helsinki Rules are considered the most important work of the ILA which was ‘by and large’ incorporated in the UN Watercourses Convention by ILC.

Both, the IIL and ILA are non-governmental organisations. The riparian states are not legally bound to the rules and regulations provided by the Madrid Declaration or Helsinki Rules. They can only be applied as guidelines to settle riparian disputes.

However, UN Watercourses Convention has to be accepted by the member states of the United Nations because it was framed by the ILC that was constituted by the UN

General Assembly in 1947 for the continuous development of international law.

Article 36, sub clause (1) of the Convention says that the ratification of 35 states is required to bring the Convention into force. On 19th of May 2014, the Viet Nam acceded to the Convention as the 35th state and Convention came into force. Now, it is

5 mandatory for the member states to solve their disputes under the framework of UN

Watercourses Convention. It is very important to mention that agreements or treaties which were signed before the ratification of the UN Convention have been protected by the Convention.

The Indus River System is one of the most important river systems of the

South Asia. It has been serving as a source of prosperity and agricultural development in the region for centuries. Various irrigation methods and techniques have been used to increase agricultural production on the Indus plains. Specially, during the reign of

Delhi Sultanate (1206-1526), attention was focused on the development of water infrastructure. Various irrigation schemes were introduced to enhance agricultural output. Later on, the Mughals (1526-1857) also worked for the development of Indus

Basin. A large network of canals, weirs and tanks was evolved to supply water to agricultural fields.

In the mid of 19th century, the British became as the new rulers of the sub- continent. Under the new colonial policy, a number of irrigation projects were completed in the Indus Basin to enhance agricultural production and to increase revenue. From 1860 to 1947, they invested a large amount of money in the Indus

Basin Irrigation System which made it the largest contiguous irrigation system of the world with command area of about 20 million hectares and annual irrigation capacity of about 12 million hectares (Swain, 2002: 66).

Increase in the agricultural production and revenue attracted provinces to compete for water share and it led to the disputes between/among the provinces. The main competitors were the provinces of the Punjab and Sindh. Various disputes were materialised between the both provinces on the water-sharing of the rivers Beas and

Sutlej. The central government set up various committees and commissions to resolve those disputes but no permanent settlement could be achieved because the demand of water was continuously increasing due to the growing population, expanding irrigation system and cultivated area. Before the final settlement of disputes, India was partitioned in 1947 into two sovereign and independent states of India and

Pakistan.

After the partition, water disputes among the provinces of British India changed from intra-states to inter-states. The boundary line drawn by the Radcliffe

Award cut across the River Ravi and the Sutlej. It divided Upper Bari Doab Canal

(UBDC) and Sutlej Valley Canal systems into parts, leaving their headworks at

Madhopur and Ferozpur in East Punjab (India) and irrigated area largely in West

Punjab (Pakistan). The West Punjab was far more dependent than East Punjab on the system of canal irrigation. By giving complete control of the important canal headworks to India, the Radcliffe Award put the economy of West Pakistan in danger.

Two bodies, the Punjab Partition Committee and Arbitral Tribunal, were set up to divide the physical assets. The Partition Committee dealt with matters regarding the division of Punjab. In case of disagreement, the Partition Committee was to make a reference to the Arbitral Tribunal for an award. The Committee maintained pre- partition shares of the East Punjab and West Punjab in the canal waters (Ali, 1973:

318). Thus, no reference related to the canal waters was made to the Arbitral Tribunal for an award.

By taking advantage of its position as upper riparian, India stopped water flowing into Pakistan from Madhopur and Ferozpur headworks on 1st of April 1948, immediately after the expiry of Arbitral Tribunal on 31st of March 1948. This Indian

7 action created a dispute between India and Pakistan on the waters of the Indus River

System. Pakistan protested against Indian action and ultimately a ‘Standstill

Agreement’ (Joint Statement) was signed on April 4, 1948. In that agreement, both countries recognised water requirements of each other.

Although, the Joint Statement restored water supplies to Pakistan yet it could not resolve dispute permanently. From July, 1950 onward, Pakistan refused to deposit the payment, specified in the Joint Statement and also gave a notice of its termination on the ground that it was signed under “duress”. It also suggested that matter should be taken to an international organisation such as International Court of Justice or UN

Security Council for final settlement but India rejected that proposal and suggested that matter should be resolved through bilateral means (Ali, 1973). From that stage, a deadlock was developed between the both countries and that situation remained continue till the David Lilienthal’s (Former Chairman of the Tennessee Valley

Authority) visit to the Indian Sub-continent in February, 1951.

The negotiations again started at the end of 1951 when both countries accepted the offer of the World Bank. The Bank, actually, involved into the water dispute of the River Sutlej but its nature of involvement entirely changed after the David

Lilienthal’s visit of the region. After returning to home, he published an article titled

“Another ‘Korea’ in the Making” in the Collier’s Magazine on August 3, 1951 in which, he presented a viable solution of the problem (Malik, 2005). On the basis of

Lilienthal’s plan, Mr. David Eugene R. Black, the then president of the World Bank, invited both countries for negotiations. The process of negotiations started in the end of 1951 under auspices of the World Bank and after extensive discussions and deliberations among the parties concerned; it was culminated into an agreement, the

‘Indus Waters Treaty’ which was formally signed on September 19, 1960 in Karachi

8 by Muhammad Ayub Khan, the President of Pakistan, Jawaharlal Nehru, the Indian

Prime Minister and W. A. B. Iliff of the World Bank (Tabassum, 2004: 24).

Under the Treaty, both states recognised rights and obligations of each other over the water utilisation. Prior to the Treaty, both states were claiming their water rights according to the conflicting principles of international law. Indian claim was based on the doctrine of “Absolute Territorial Sovereignty” whereas Pakistan’s claim was based on the principles of “Prior Appropriation or Historic Use” and “Not to

Cause Significant Harm” which protect the right of prior utilisation. But the solution provided by the Indus Waters Treaty does not take into account those principles. It is based on the principles of engineering and economics. Instead of dividing the waters of the Indus System, it divided the rivers of the Indus Basin into eastern and western groups. The Eastern Rivers (the Ravi, the Sutlej and the Beas) were assigned to India exclusively (Indus Waters Treaty, Article III), whereas the Western Rivers (the Indus, the Jhelum and the Chenab) were exclusively given to Pakistan except a limited amount of water for Indian use in the disputed territory of Jammu and Kashmir (Indus

Waters Treaty, Article II).

The mechanism of dispute-resolution is also an important component of the

Treaty. The “questions” are considered by the Permanent Indus Commission,

“differences” are settled by the Neutral Expert who is to be a qualified engineer and

“disputes” are resolved by the International Court of Arbitration (Indus Waters

Treaty, Article IX, Annexures F and G). Under the provisions of the Treaty, a transitional period of ten years was provided to Pakistan to complete its replacement works on the Western Rivers through the financial assistance of the friendly states which was arranged by the World Bank (Indus Waters Treaty, Article IV (1)).

The Indus Waters Treaty is generally considered one of the most successful water agreements of the world. Its origin, mechanism of water allocation and integration to the customary international water law, make it a unique agreement. So, it has been surviving for the last fifty six years, even during the three wars between the two nations. Although, the Treaty remained successful to solve the water related issues, yet during the last two decades, it has come under the stress due to increasing demand of water.

Under the provisions of the Treaty, India is allowed to construct run-of-the- river projects on the Western Rivers to generate hydel power without live storage as an integral part of the plant except for pondage and surcharge storage (Indus Waters

Treaty, Annexure D).

India has planned several projects on the Western Rivers which are being opposed by the Pakistan on the ground that Indian projects do not fulfil the required criteria, laid down in the Treaty. It is a growing perception in Pakistan that those projects are permanent threat to the economic security of the country. On the other side, India claims that its projects are under the limits of criteria, laid down in the

Treaty.

1.2 Relevance of the Study

Immediately after the division of India, water became a focal point between

India and Pakistan. On 1st of April 1948, India stopped flow of water into every canal flowing into Pakistan. This action made Pakistan more sensitive about its water rights because water of the Indus System is a source of life for Pakistan. This sensitive position of Pakistan is the basic reason of confrontation with India on water related issues. In this context the present study tries to trace the origin of water dispute in the

Indus Basin, and it also sees how water dispute between India and Pakistan emerged due to the partition of the Punjab. The study also looks into evolution and development of International Law on the non-navigational uses of the international watercourses and provides its present status.

It further discusses how the water dispute was resolved under the guidance of the World Bank and the Indus Waters Treaty was inked, and also describes consequent development of the water infrastructure in the region. It also highlights relevance of the Indus Waters Treaty with contemporary principles of international water law. The study further examines gaps in the Treaty and contemporary issues, emerging after implementation of the Treaty. This research would be an important contribution towards the pacific settlement of water dispute. It is also important to see into the nature of the dispute and make proper arguments for the maximum utilisation of the water resources which fulfil the aspirations of the peoples of India and

Pakistan.

1.3 Research Methodology

This thesis is based on the qualitative data and research methods and tools.

Qualitative research is consisted of method and techniques which cannot be quantified. It has widely been accepted and recognised by the various scholars as a best way to examine at hand. There are various methods that are commonly used in qualitative measurement such as observation, content analysis and interviewing which the researcher has tried to adopt in this dissertation.

This research is based on the mixture of primary and secondary sources of information. In the beginning, the researcher made careful readings of the existing literature on nature and origin of water dispute in Indus River Basin, principles of

11 water management regarding the international watercourses and Indus Waters Treaty.

Secondary sources such as books, research articles published in journals of national and international repute, online available sources, magazines, gazetteers, newspapers and official websites of the relevant departments were used for the study. Some confidential reports released by the Government of Pakistan were also accessed and used.

Primary data was gathered from the various departments including discussions with prominent scholars, historians, political scientists and water resource experts.

The relevant data and information gathered through various sources were analysed and presented in a systematic and logical way which make the study very comprehensive and reasonable.

1.4 Literature Review

The present study deals with the disputes related to the waters of the Indus

River System between India and Pakistan with special reference to international water law. The main objective of this research is to investigate and understand riparian rights of Pakistan and India and the problems arising from the conflicting claims on

Indus waters. The study, Indus Water Treaty: An Exercise in International Mediation authored by Gulhati (1973) who took part in the negotiations, provides comprehensive picture of Indus River Basin, its physiography, climate and water resources, history of irrigation development in the Basin, importance of its water resources for India and

Pakistan, disputes over the water sharing and management in pre-partition and post- partition periods, settlement of the dispute and role of the World Bank as mediator, apprehensions of the both countries over the Indus Waters Treaty, water laws and regional water politics. The study also highlights the events of partition and claims

12 that the Radcliffe Line has left many issues unresolved between India and Pakistan and water dispute is one of them. The study further provides detailed accounts of information about the negotiations which were culminated into Indus Waters Treaty in September, 1960. However, it covers a short period of 26 years after the independence, so it lacks latest developments in the international water law and disputes emerging out over the implementation of provisions of the Indus Waters

Treaty.

Another study, Indus Water Treaty in Retrospect (Malik, 2005) after giving the description of history and features of geographical setting of the Indus Basin, it critically evaluates the process of negotiations between India and Pakistan under the supervision of the World Bank and criticises Pakistani delegation who sacrificed historical water rights of their country and surrendered three Eastern Rivers to India.

The study also raises objections on the Treaty itself and claims that it has proved more useful for India than Pakistan but at the same time, he rejects any effort to renegotiate for the Treaty II. However, the book provides a great amount of knowledge on the subject but lacks comprehensive and unemotional treatment. The author has also ignored the principles of international water law which can provide a guideline to the concerned states to solve their disputes, emerging out due to differences over the implementation of the Treaty.

The Indus Water Treaty Regime (Arora, 2007) traces basic root of the problem in the disharmony of interests of Pakistan and Jammu and Kashmir. Pakistan requires to store and divert water flows of the Indus System to enhance irrigation facilities in

Punjab and Sindh, whereas Jammu and Kashmir is trying to improve its own irrigation system and hydro-electric capacity. The author confuses the readers as if the

Jammu and Kashmir is an independent state which has direct conflict with Pakistan or

13 if it was a party to the Treaty. He also provides alternative approaches to the Treaty which could be joint development and management of the waters of the Indus System.

Although, he highlights the weaknesses and contradictions of international law yet does not mention the latest development of international law on non-navigational uses of the international watercourses.

The book, Conflict and Cooperation on South Asia's International Rivers authored by S. M. Salman and K. Uprety (2002) projects, in the context of South

Asia, shared waters as a source of conflict and cooperation among the riparian states.

It provides detailed analysis of hydro-politics of the countries of sub-continent, the

Nepal, India, Pakistan and Bangladesh. It not only looks into the problems relating water sharing and management of the international watercourses among the riparian countries but also how they have solved them. Especially, the book provides comprehensive account of treaties governing the Indus, the Ganges, the Kosi and the

Mahakali river basins. Each treaty has been dealt comprehensively and the main problems of the treaties have also been discussed in detail. A chapter has also been deputed to discuss the evolution of international law of riparian water. Although, the book provides useful information about the nature of water disputes and mechanism of their resolution yet it lacks information about the latest conflicts, emerging out after the enforcement of treaties and about the latest developments in the field of international water law.

Another book, Hydro Politics and Water Wars in South Asia (Siddiqui, 2010), has been written on water issues with reference to South Asia. The author provides historical analysis of water disputes between Pakistan and India and the Indus Waters

Treaty 1960. He argues that the core issue behind Pakistan’s water problems is the forced annexation of the Kashmir by India. Resolutions of the U. N Security Council

14 requiring plebiscite in Jammu and Kashmir have still not been implemented by India and status of Kashmir along with control of head reaches of the Indus River System have still not been determined. He feared that the ever increasing violations of the

Indus Waters Treaty by India are setting stage which may lead to World’s first water war in South Asia. Although, the book provides detailed information about the water resources of the Indus River Basin, history of canal construction and origin of water related problems in India, the partition of India and its effects on the water infrastructure and implementation of the Indus Waters Treaty yet it lacks information about the provisions of the Treaty which are being violated by India. The book also lacks legal aspects of water issues.

The book, Emerging Challenges to Indus Waters Treaty: Issues of Compliance and Transboundary Impacts of Indian Hydro Projects on the Western Rivers (Akhtar,

2002), after describing the origin and history of the water conflicts in the Indus Basin, looks into the negotiation process between India and Pakistan and role of the World

Bank as mediator which culminated into Indus Waters Treaty of 1960. The author contends that Treaty has survived three wars between the two countries, but for the last two decades, it has come under great stress due to the Indian construction of hydropower projects on the three western rivers. In response to the construction of

Indian projects on the Western Rivers, the author claims that it is a violation of the

Indus Waters Treaty and these projects will adversely affect the economy, ecology and security of Pakistan. The author concludes that the Indus Waters Treaty should be renegotiated to handle the new emerging contemporary issues. The author fails to divulge new aspects of the issue.

Water: Asia's New Battleground by Brahman Chellaney (2011) provides comprehensive set of information about the important river basins of the Asia. It

15 examines water challenges of Asia in the context of geostrategic and power shift. It looks into the intra-state and inter-state disputes over the water sharing and management. Covering the almost entire Asia, the book warns about the inter-state conflicts over the water. The author argues that those conflicts can only be avoided by adopting cooperative, ruled-based approach to water management. Although, the author provides detailed information about the water politics in Asian continent yet he completely ignores the internationally recognised principles of international water law which can be useful to settle disputes among the various countries of the region. By supporting rights of lower riparian countries, he criticises Chinese plans in Tibetan

Plateau which can injure the interests of the lower riparian states, India and

Bangladesh, but on the other side, in case of Pakistan and Bangladesh, he favours

Indian perspective.

Another writer, Professor Dr. Iqbal Ali, in his book Undeclared Water War on

Pakistan: Tactical and Strategic Defence Measures (2015) provides a comprehensive picture of water resources, irrigation system and agricultural performance of Pakistan.

The author discusses retrospective aspects of the water issues between India and

Pakistan. Not satisfying with allocation of water under the provisions of the Indus

Waters Treaty, India has turned its focus on Western Rivers, which were exclusively given to Pakistan except some minor allocation to India for agricultural uses in Indian held Jammu and Kashmir. The Treaty also allowed India to construct run-of-the-river hydel power projects on the Western Rivers with limited storage capacity. As a result,

India is constructing a series of dams on Western Rivers without consulting Pakistan.

He asserts that cumulative storage capacity of those projects will enable India to create draught like situation in Pakistan or to release it during the floods, as she did during the flood season of 2014. He also criticises the verdict of the ‘Neutral Expert’

16 on the Baglihar dispute and blames Pakistani authorities for delay in raising the issue with India. He also discusses the internal politics on the issue of water especially with reference to Kalabagh Dam Project which has been shelved twice, during the

President Zia-ul-Haq and President Pervaiz Musharraf regimes. Although, the author provides detailed information about the history of canal construction, origin of the water disputes among the provinces of British India and between India and Pakistan yet it does not tell a reader how India is violating the provisions of the Indus Water

Treaty.

An article “A Brief History of the Indus River” (Clift, 2002) does not deal with Indus water issues, however, it describes historical review of the River Indus, its drainage basin and course from Tibetan Plateau to Arabian Sea. It also examines the geological evolution of the Indus River System; evaluates its old course and examines how it has shifted due to the geomorphological conditions. It also explains the role of

Indus System in formation of land and agricultural development in the basin.

Explaining the importance of its waters, the author asserts that it is a source of life for millions of the people in the region who directly or indirectly are dependent upon its waters.

Another article “Indus Water Treaty: A different View” (Iyer, 2005) claims that the Treaty provides a good mechanism to prevent war and it has been proved to be a successful means of cooperation. It declares that the treaty is highly technical in nature and its technicalities cannot be understood easily even by the Indus Water

Commissioners. It further suggests that both India and Pakistan should jointly manage the Indus Basin as a single unit but if it is not conceivable, then the water of each tributary should be shared by the both countries. The author also criticises the idea of

Treaty II, which is proposed on the foundations of the Indus Waters Treaty. Although

17 the author has claimed to give a different view over the Treaty and other related issues, yet he has failed to project a different view on the issue.

The paper “Indus Waters Treaty under Stress: Imperatives of Climate Change or Political Manipulation” (Shah, 2011) provides descriptive information about water resources of the Indus Basin and violations of existing principles of the internal water law by India. After detailing the negotiation process that culminating the signing of the Indus Waters Treaty, the author highlights current stress on the Treaty and evaluates the position of both India and Pakistan on the ongoing issues, such as

Wullar Barrage, Baglihar Project, Nimoo-Bazgo hydel power plant and Kishanganga hydel power project. However, the paper projects Pakistani stance and ignores Indian point of view regarding those projects.

A report published by the UNDP, titled “Conflict and Cooperation over

Transboundary Waters” authored by Aaron T. Wolf (2006) highlights current approach of conflict and cooperation over the international shared waters. Although, the possibility of war over the water resources is low yet there is also a lack of cooperation in the conflicts over the international watercourses. The paper provides conceptual basis to understand the cooperation and costs of non-cooperation over the shared waters. It not only provides an overview of the nature of conflict and cooperation but also gives evidences to highlight the potential costs of non- cooperation. The author has analysed various models/examples of cooperation to manage the competition over shared water resources, such as the Indus Waters Treaty, the Ganges-Brahmaputra basin and Tigris-Euphrates basin. He not only highlights the triggers of conflict over the shared waters but also discusses the implications of those conflicts on the livelihood of common people. He further evaluates the role of institutions which they have played to manage the waters in various regions. Though,

18 the paper provides comprehensive information about the causes of conflict and cooperation with evidences from the different river basins yet the legal aspects of transboundary rivers remains unattended.

Another report “Hydro-politics in Pakistan's Indus Basin” written by Daanish

Mustafa (2010) examines the Indus Waters Treaty and its role in the contemporary water politics in the Indus Basin. The author asserts that the Indus Basin has sufficient water resources that can fulfil requirements of its residents by effective and equitable management. The report claims that root cause of the contemporary water issues related to the Indian projects on the Western Rivers is a contradiction on the interpretation of the provisions of the Treaty. Pakistani experts interpret its provisions very literally whereas Indian experts tend to emphasize the criteria, provided by the

Treaty, for techno-economically sound project design. The report further states that no single Indian project on the Western Rivers, whether it has been completed or proposed, is in a position to significantly limit the water flows to Pakistan but the cumulative storage capacity of a large number of proposed Indian projects will effectively reduce the flow of water to Pakistan during the winter months. He further argues that the Indus Waters Treaty was signed about half a century ago and it is a product of that time. Now, it is time to renegotiate and modify it according to the contemporary international law, especially, the Helsinki Rules (1966). However, the report overlooked climatic conditions of the basin, origin of the dispute and international law on the non-navigational uses of the international watercourses.

The paper “Managing the Indus Waters: Alternative Strategies” (Tariq, 2014) provides details about the conflicting claims of both countries regarding the riparian water rights in pre-treaty period. India demanded its share according to the principle of “equitable utilisation” and argued that Pakistan received 75 percent of water which

19 is clear violation of that principle. On the other side, Pakistan claimed that it had 90 percent of irrigated land but it got only 75 percent water which is violation of the principles of “appreciable harm” and “historic rights”. The paper also describes reaction of the Indian Lok Sabha against the Treaty.

After detailing the process of negotiations, the paper claims that at the end the

World Bank put forward its own formula which divided the rivers instead of dividing the waters of the Indus River System. It was accepted by the both states and finally, the Indus waters Treaty was signed on September 19, 1960. The paper suggests that both states should try to invoke those relevant provisions of the Treaty which visualize cooperation and should use water as a source of cooperation and development for the mutual benefits of the entire region. However, the author fails to establish relationship between International Water Law and Indus Waters Treaty, implications of the Treaty and geography of the Indus Basin.

The paper “Revisiting the 1960 Indus Waters Treaty” (Sarfraz, 2013) argues that the Treaty provides the best mechanism of dispute settlement yet it does not address contemporary issues which have emerged due to the climatic change, environmental flows, increasing water demand and hydrological uncertainty. It further says that the Indus Waters Treaty is a water apportionment treaty; it does not focus on the water cooperation and sharing of benefits. The paper also highlights the strengths and weaknesses of the Treaty with reference to the UN Watercourses Convention

1997. The author suggests that the Treaty should be improved by incorporating provisions related to joint research initiatives, joint climate adaptation strategy, maximum use of available resources through negotiations and joint development of water and energy infrastructure. However, it does not discuss the flaws in its

20 implementation, status of the Indian hydel power projects on the Western Rivers and implications of the Treaty for both riparian nations.

1.5 Structure of the Thesis

The second chapter highlights the theories and principles of water management in international rivers basins. It briefly looks into the various theories and doctrines such as Absolute Territorial Sovereignty, Absolute Territorial Integrity,

Limited Territorial Sovereignty and Integrity and Community of Interests. It also describes various principles which provide a base for dispute settlement, such as principles of equitable and reasonable utilisation, not to cause significant harm, exchange of information, prior information, consultation and negotiations and peaceful settlement of dispute etc. This chapter also deals with the development and codification of international law on non-navigational uses of the international watercourses. Especially, the role of International Law Institute (IIL), International

Law Association (ILA) and International Law Commission (ILC) has been discussed.

The next chapter provides information about the Indus River Basin (IRB).

Particularly, it highlights its physiography, boundaries, climate, landforms and water resources; specially the surface resources. It provides comprehensive details about the rivers of the Indus System i.e. the Indus main, the Jhelum, the Chenab, the Ravi, the

Sutlej and the Kabul. It also provides a detailed account of the irrigation development in the IRB. It outlines the irrigation practices and historical development of canal irrigation in the Basin. It also provides detailed account of water disputes among the various states of the British India and efforts to resolve them.

The fourth chapter highlights the role of Lord Mountbatten (the Last Governor

General of United India) and Sir Cyrill Radcliffe (the Chairman of the Boundary

Commissions) in demarcation of the boundary line in such a way that headworks remained with India and irrigated land in Pakistan. This chapter also analyses the consequences of partition with special reference to water politics and provides a detailed account of the negotiation process between India and Pakistan under the aegis of the World Bank until the Indus Waters Treaty was signed in 1960.

The chapter five deals with the Indus Waters Treaty in detail, it provides a detailed account of the principles of water sharing and management adopted in the

Treaty and the implications of the Treaty for both India and Pakistan. In addition to survey of the opinions of critics of the Treaty from the both states, this chapter covers the causes of confrontation between India and Pakistan over the implementation of the

Treaty. It further highlights position of the both countries over the Indian projects which have been completed or under construction, one by one and trace out the causes of the water conflicts, impacts of water conflicts on Indo-Pak relations and contemporary challenges to Indus Waters Treaty. It further attempts to trace out the relevance between contemporary international water law on the non-navigational uses of the international rivers and Indus Waters Treaty. By introducing ILA’s Helsinki

Rules (1966), Berlin Rules (2004) and the UN Watercourses Convention (1997), it provides detailed account of all those relevant principles which have also been adopted by the Indus Waters Treaty.

The last chapter would summarise the research findings and recommendations of the study. It would review the geography and water resources of the Indus basin, internationally accepted principles of water management, consequences of the partition, origin and nature of the water dispute between India and Pakistan, Indus

Waters Treaty and its implication and relevance of the Indus Waters Treaty and contemporary international water law. It would also suggest some insights into the

22 implementation of the Treaty and crisis management tools for the dissolution of disputes arise in the Indus Basin.

End Notes

1 - The dispute over the “Gu’edena” a region started. Urlama, the king of Lagash (2450-2400) diverted water from this region to boundary canals, drying up boundary ditches to deprive Umma of water. His son also cut off water supply to Girsu, a city in Umma. Therefore, a dispute emerged between two states (Gleick, 2015). 2 - The Felkenmark Indicator is based on per capita usage and categorised an area as: no stress (above 1700 m3), stress (1700 m3 to 1000 m3), scarcity (500 m3 to 1000 m3) and absolute scarcity (below 500 m3). 3 - The absolute numbers of International basins change over time in response to alterations in the world political map. For example in 1990, the break-up of Soviet Union and of Yugoslavia led to the “internationalization” of several basins (as Dnieper, Ob, and Aral Sea basins). In contrast, the unification of both Germany and Yemen in 1990 resulted in the “nationalization” of two formerly international basins—the Weser and Tiban (Giordano & Wolf, n.d).

Chapter 2

International Water Law

2.1 Introduction

Till the mid of the 19th century, there was no dispute over the water sharing among the riparian states except some sporadic conflicts which were resolved locally.

In the last quarter of the 19th century and first quarter of the 20th century, process of irrigation engineering (storage and diversion) was started and as a result volume and quality of water was found to be decreasing in the various parts of the globe. As a result, it became a basic cause of conflicts among the co-riparian states. At this stage, the international community felt a dire need of international law to deal with non- navigational uses of the international watercourses1.

This chapter is an attempt to explore the various theories and principles which played an important role in the development of international law on non-navigational uses of the international watercourses. It also highlights the role of various scholarly institutions and United Nations in the development and codification of international water law with regard to the non-navigational purposes.

2.2 International Water Law: Theories and Doctrines

After 1st World War, various riparian states started activities to use the waters of international rivers other than navigational purposes and as a result riparian conflicts emerged in various parts of the globe. At that time, international law started activities to address the uses of the international rivers other than navigation. At that stage, four varying and conflicting doctrines were in existence to address the obligations and rights of all basin states over the international watercourses2. These

24 theories are largely based on the state practices and contributions of the scholars and experts in the field.

2.2.1 Absolute Territorial Sovereignty

This is the most controversial doctrine. It completely permits a riparian nation to utilise an international watercourse in any manner within its boundaries, as it deems fit, without concerning an injury or adverse effect on other co-basin states (Salman &

Uperty, 2002). The consequence of this theory is that it denies the water rights of downstream states to demand continuous flow of water of a transboundary watercourse from upstream states. In essence, this doctrine denies any international law on the subject. This theory is often supported by the upper riparian states to secure their own interests at the price of the other co-riparian states. It is heavily criticised by the number of scholars and also by international community. It has been conceived from the Harmon Doctrine that is based on the legal opinion of Mr. Judson

Harmon, the Attorney General of the United States, over the dispute of water apportionment of the River Rio-Grande between Mexico and USA in 1895 (Salman &

Uperty, 2002). It is worth noting that United States itself never demanded the application of this notorious theory in the settlement of disputes regarding water sharing of its transboundary watercourses with neighbouring states, Canada and

Mexico. Smith (1931) stated it as radically unsound and it cannot be accepted as a base for legality. Moreover, this doctrine has also been effectively rejected by the international judicial bodies, for example, in 1941, Arbitration Tribunal rejected it in the Trail Smelter case, ICJ rejected it in the Corfu Channel case in 1949 and again in the Lake Lanoux arbitration in 1957 (Harris, 1998). So, it is widely believed that this doctrine cannot be accepted as a part of the international law3. However, it has been applied and mentioned by some states; India interrupted flow of the rivers to Pakistan 25 in 1948; China favoured it during the discussions on the UN Convention on

International Watercourses at U. N. General Assembly4, Austria also made the same reference of the principle (Upreti, 2006).

2.2.2 Absolute Territorial Integrity

This theory is totally opposite to the doctrine of ‘absolute territorial sovereignty’ and it is also known as ‘riparian rights’. It advocates the right of downstream nations to demand the continuous and unrestricted flow of waters of a stream into their territories from the upstream state or states. It also establishes the duty of the upper riparian states, not to create any obstacle in the natural flow of watercourse to the lower riparian states. This doctrine permits an upper riparian state for limited utilisation of waters of an international river. It has same characteristics as the “common law doctrine of riparian rights”5 (Salman & Uperty, 2002: 14). This theory favours the lower riparian states by protecting their right of prior appropriations or existing uses. It also protects the lower riparian from any injury or harm that may be caused by the upper riparian, by using an international river. It is mostly promoted by the downstream nations against their upstream states, such as

Argentina, Bangladesh, Egypt, Iraq, Spain and Syria (Upreti, 2006). For example in

Lake Lanoux case, Spain objected against the French diversion and its objection was over ruled by the Arbitration Tribunal by pleading that no customary international law exists which prohibits such an action, although a treaty could prohibit such a diversion

(Benhard, 1981).

In reference to Indo-Nepalese water relations, India raised several objections against Nepalese hydropower projects on the ground that they would violate the principle of territorial integrity (Verghese, 1990: 342). On the other hand India took

26 totally opposite stand while it was negotiating with Bangladesh on Ganges water dispute and with Pakistan on the dispute over the water sharing of the Indus River during 1948 (Upreti, 2006).

As stated earlier, the theory of ‘absolute territorial sovereignty’ was rejected because of its failure to secure the rights of the downstream states, whereas the principle of ‘absolute territorial integrity’ has also been rejected by the experts and scholars of international law on account of its failure to protect the rights of the upper riparian nations.

The roots of doctrine “prior appropriation” can also be traced into the theory of absolute territorial integrity or sovereignty which projects “first in time, first in right” approach (Tarlock, 2000). It establishes legal right of a state, first utilising the waters of an international watercourse to use these waters in future and it cannot be deprived of without its consent (Upreti, 2006). It means that earlier schemes or projects have priority over the utility of water than those projects which were made later. In practice, this theory favours the developed nations because in most cases developed nations have completed their water infrastructure earlier than the weaker states. This theory is not based on the fair foundations, so, it was also rejected by the experts of international law and it could not become the part of international water law.

2.2.3 Limited Territorial Sovereignty and Integrity

This theory is the combination of first two doctrines. It advocates the right of each riparian nation to utilise an international watercourse passing through its boundaries in such a way that its uses do not harm the interests of other riparian states. In essence, this doctrine guarantees rights of each and every riparian nation on

27 a common watercourse. Rahman (2009) describes it as the theory of ‘sovereign equality and territorial integrity’. It is based on the principle of sic utere tuo ut alienum non laedus6 , or the concept that all riparian states have equal water rights and they should respect the rights of each other to share the waters of a common river

(Spiegel, 2005). This theory has developed the doctrine of equitable apportionment and utilisation “equitable utilisation” which recognises the equal water rights of all riparian states. It also guarantees a right of reasonable utilisation by the upper riparian states within the framework of equitable utilisation by all co-riparian (Salman, 2007).

This theory is applied to many treaties, declarations and conventions.7 Only this theory has been greatly accepted and appreciated by the scholars of international law, international community and ICJ. It is considered as a foundation of modern international law on fresh water.

Salman & Uperty (2002: 15) stated that first of all this doctrine was applied in the Meuse River dispute between Belgium and Holland. The Dutch Government issued a letter in 1862, which asserted that the River Meuse is a common asset of both

Belgium and Holland and both states have equal right to utilise its natural flow. But at the same time, both states are bound to avoid any action which may cause harm or injury to other state. In other words, both countries have no right to become the master of the Meuse River and divert its flow according to their own wishes.

In the Lake Lanoux case, the decision of Arbitral Tribunal was based on the assumption that each riparian nation has equal right to share an international stream and the obligation not to ignore the rights of the other nations (Salman & Uperty,

2002). This doctrine was prominently adopted in 1960s by the international legal system. In 1966, ILA adopted Helsinki Rules which provides a list of factors used to determine the reasonable and equitable share of an international watercourse (ILA, 28

1966). UN Convention on Non-Navigational Uses of the International Watercourses

(UNCIW), adopted by the United Nations General Assembly (UNGA) in 1997, also contains provisions regarding the reasonable and equitable uses of the international watercourses.

2.2.4 Community of Interests

The fourth doctrine ‘the community of interests’ considers the river basin as an economic unit. It is also known as the community of co-riparian nations. Under this theory, the rights and obligations over the transboundary watercourses are vested in the joint body of the all basin states, or their water is apportioned among the basin states by a treaty or an agreement or according to the proportionality (Salman &

Uperty, 2002: 15). In other words, this theory gives more importance to a community of interests, established by the natural and physical unity of a river (Spiegel, 2005).

However, these interests are mostly influenced by a number of environmental, economic and societal factors, such as nationalism, lack of trust among the co- riparian, absence of political will etc. This doctrine ignores political boundaries to achieve the maximum level of development of the entire basin and it reinforces the theory of limited territorial sovereignty, especially its aspect of equitable utilisation that recommends a high level of cooperation in joint management of the entire basin and considers entire river system as unity, shared by all riparian nations (McCaffrey,

2001). This theory is not widely accepted because it ignores political and physical boundaries, requires high level of cooperation in common management and demands geographic and economic unity of the entire river basin which are not easy to achieve, particularly between and among the nations, which have sentiments of enmity.

2.3 Principles of International Water Law

There are several general and customary principles of international law that emerged during the last two centuries to deal with the issues of transboundary water resource management. In this part of the chapter, some important principles related to international law on fresh water are discussed. These principles have been incorporated and recognised by several international agreements, treaties and conventions of the modern regimes. For instance, the Helsinki Rules of ILA, (1966) and UN Watercourses Convention (1997) are largely based on these principles

(Rahman, 2009; Giordano & Wolf, 2003).

2.3.1 The Principle of Reasonable and Equitable Utilisation

It is generally recognised as the fundamental principle of international law on the non-navigational uses of transboundary rivers. It is considered as the subset of the doctrine of limited territorial sovereignty. Both the UN Watercourses Convention

(1997) and the Helsinki Rules (1966) incorporated it.

Equality of rights and shared territorial sovereignty are the foundations of this principle. It does not mean that all co-riparian have equal share of waters of the same international watercourse. To determine the reasonable and equitable share, relevant factors8 must be taken into account. It recommends balance in interests of all parties to adjust their requirements and usages. This principle has generally been endorsed by various judicial bodies in their decisions, international codifications and state practices (Birnie & Boyle, 2002).

This principal was endorsed by the ICJ in Gabcikovo-Naymaros Project case in 1997 (Rahman, 2009: 211). It is also incorporated in articles IV, V, VII, X and

XXIX (4) of the UN Watercourses Convention (1997), articles 5, 6, 7, 15, 16, 17 and

19 of the Helsinki Rules (1966), articles 10.1, 12, 13, 14 and 16 of Berlin Rules

(2004) and article 2.2c of the 1992 UNICEF Water Convention.

2.3.2 Obligation of Riparian States Not to Cause Significant Harm

Eckstein (2002: 82) considers this principle as a subset of the doctrine of limited territorial sovereignty. It states that no riparian nation can be allowed to utilise an international stream passing through its boundaries in such a manner that would cause serious injury to the other riparian nations or their environment, human safety and health, living organisms of river system and to the beneficial use of waters. This principle is widely accepted by the scholars and experts of the international law.

However, the question “how ‘harm’ becomes ‘significant harm’?” requires a detailed answer.

It is also recognised by many international treaties, agreements and conventions and now it has become important portion of customary international water law (Eckstein, 2002: 82-83). It can be traced in the articles V, X, XI, and XXIX

(2) of the 1966 Helsinki Rules, articles 7, 10, 12, 15, 16, 17, 19, 20, 21.2, 22, 26.2, 27,

28.1 and 28.3 of 1997 UN Watercourses Convention, articles 2.1, 2.3, 2.4 and 3 of the

1992 UNESCO Convention and many more (Rahman, 2009: 211).

2.3.3 Principles of Prior Notification, Negotiation and Consultation

These principles provide rights of prior notice, negotiation and consultation to all riparian nations, in a case, where proposed utilisation by a riparian nation may cause serious injury or harm to the interests and rights of other co-riparian. All the above mentioned principles are also recognised by several international agreements,

31 treaties and conventions. However, these are often opposed by the upper riparian states. As Birnie & Boyle (2002: 319) describe that during the deliberations on the

UN Watercourse Convention (1997) in UN General Assembly, three upper riparian states (Ethiopia, Rwanda and Turkey) opposed these principles.

The ILA adopted article 3 of its complementary rules on international resources in 1986 at Seoul Conference. It says that if a riparian nation suggests to undertake, or allows to undertake a project that may cause substantial effect on the rights of other co-basin states, it will be the duty of such state to give a notice of the project to other co-basin states that has adequate data, information and specification for proper assessment of the effects of that project.

So, these principles have also been incorporated in several legal instruments of regional and international level (Rahman, 2009: 212), for example, articles XXIX sub clause (2), XXIX sub clause (3), XXIX sub clause (4), XXX and XXXI of the

Helsinki Rules (1966), articles 3.5, 6.2, 11-19, 24.1, 26. 2, 28 and 30 of UN

Watercourses Convention (1997), articles VII (2) and VIII of the Indus Water Treaty

(1960), articles 57, 58, 59 and 60 of Berlin Rules (2004) and article 10 of the

UNESCO Water Convention (1992).

2.3.4 The Principles of Information Exchange and Cooperation in International

River Basins

These principles demand every riparian nation to cooperate in the development of the river basin, exchange information about present state of the watercourse and their future proposed utilisation of the river.

These principles have also been incorporated in several modern international legal instruments (Rahman, 2009: 212), for example, articles XXIX sub clause (1),

XXIX sub clause (2) and XXXI of 1966 Helsinki Rules, articles 5.2, 8, 9, 11, 12,

24.1, 25.1, 27, 28.3 and 30 of the 1997 UN Watercourses Convention, articles VI and

VIII of the 1960 Indus Water Treaty and articles 6, 9, 11, 12, 13, 15 and 16 of the

1992 UNESCO Water Convention.

2.3.5 Principle of Peaceful Settlement of Disputes

This principle requires peaceful settlement of conflicts over the management and water apportionment of an international watercourse between or among the co- basin nations, in a case, concerned nations cannot reach an agreement by negotiations

(UNO, 1992: 9-23).

This principle has provided a base to many international agreements, conventions and treaties for peaceful settlement of riparian conflicts (Rahman, 2009:

215). For example, it has been incorporated in articles XXVI and XXXVII of Helsinki

Rules (1966) of ILA, article 33 of 1997 UN Watercourses Convention and article IX with Annexures F and G of the Indus Water Treaty (1960).

2.4 Development and Codification of the Law on Non-Navigational Uses of

the Waters of International Watercourses

Process of codification of international water law on navigational uses of transboundary rivers started in 1815 when the Act of the Vienna Congress was adopted (Salman & Uperty, 2002: 8). Recommendations of the above mentioned Act were incorporated in the Mannheim Convention on the navigation of Rhine River, which was signed by the Belgium, France, Germany and the Netherland in 1868

(Hughes, 1992: 84). Freedom of navigation confirmed by the Act of the Vienna

Congress was also adopted by the General Act of Congress of Berlin regarding Niger and Congo River in African continent. That Act ensured free movement of colonial masters in the continent of Africa. That Act even extended the scope of navigational freedom to the non-riparian states also. (Salman, 2007: 626) At that time, rivers were used, by and large, only for navigational purposes. Utilisation of rivers other than navigation, like irrigation, industry and hydropower generation, was in initial stage of development. In the beginning of the 19th century, the industrialisation and rapid increase in population developed other uses of rivers and primacy of navigational uses eroded gradually. However, with the start of 20th century, utilisation of international watercourses for other than navigational purposes started to evolve and compete with navigational uses (Salman & Uperty, 2002). The Madrid Declaration9, adopted by the

Institute of International Law in 1911, intended to deal with navigational as well as non-navigational uses of the transboundary rivers. In 1921, Barcelona Convention10 was adopted by the League of Nations which also recognised both kinds of utilisation of international rivers. After two years, Geneva Convention11 was adopted under the supervision of the League of Nation in 1923. This Convention stated that any state could carry out any operation to develop hydraulic power within its territory under the jurisdiction of international law. Geneva Convention proved another remarkable step towards the decline of the primacy of navigational utilisation of international rivers.

After the World War two, division of Europe into East and West blocks, greatly affected the freedom of navigation in the international rivers (Salman & Uperty,

2002).

Although, all these early conventions mostly dealt with navigational uses, yet due to the rapid urbanisation and industrialisation demand for water resources also

34 increased. Consequently, water disputes emerged in the various regions of the world among riparian states which propelled the world to make laws to deal with uses of transboundary watercourses other than navigational purposes. To codify international law related to the utilisation of International streams other than navigation, the IIL, the ILA and the ILC played a vital role.

2.4.1 The Institute of International Law (IIL)

The efforts of the IIL have played a vital role to develop and codify international law. It is a non- governmental organisation of prominent scholars of international law. It was founded in 1873. It has been working on various subjects of international law since its inception. Madrid Declaration (1911) was the first attempt of IIL to codify the principles on non-navigational uses of international watercourses.

The Declaration distinguishes frontier streams12 from those that flow into the boundaries of two or more than two countries. Regarding the frontier watercourses, the first Article of the Declaration prohibits a state to utilise or allow utilising waters in such a way that may bring negative effect on the banks of other state (FAO, 1998).

Article II prohibits any construction on an international watercourse without receiving prior consent of other riparian nations. In the same way, sub clause (5) of Article II prohibits downstream nations to make any establishment in their territories that rise water level of a stream and floods may occur in the territories of upstream states

(FAO, 1998).

The riparian nations are not legally bound to the rules and regulations provided by the Madrid Declaration. They can only be applied as general guidelines to settle the riparian disputes. For instance, these rules are incorporated in Helsinki

Rules, 1966, and the UN Convention, 1997. The Declaration is sharply in contrast

35 with the Hormon Doctrine and it provides the principle not to cause serious injury to the other basin states. Although, Madrid Declaration favours the doctrine of ‘limited territorial sovereignty, yet at the same time it prohibits all those activities which would result in injury to other riparian states.

Salzburg Resolution 1961 was another important work of the Institute of IIL.

It describes rights and duties of basin states about the utilisation of an international stream. Article III states that “if the basin states have conflicting positions on the magnitude of their rights of use, the dispute shall be settled according to the principle of equity, bearing in mind their specific needs and other relevant circumstances”

(FAO, 1998).

Article IV of the Salzburg Resolution entitles a state to receive sufficient compensation for any damage done by any harmful act of another state. Article V recommends the need of prior consultation before starting any work on international watercourses. These rules also demand riparian states that consultations or negotiations should be conducted in good faith to settle their disputes peacefully

(Upreti, 2006).

2.4.2 International Law Association (ILA)

ILA is also a non- governmental organisation, established by the prominent scholars of international law in 1873. It has a lot of contributions on its credit to codify international law. It started its work to codify international law on the utilisation of the international watercourses other than navigational purposes in 1954.

Resultantly, after extensive deliberations of two years it issued Dubrovnik Statement in 1956. This Statement entitles sovereign rights to each basin state over the international watercourse within its territorial jurisdiction but such control should not

36 affect the rights of other riparian states. Although, the term “reasonable and equitable utilisation” was not used in the statement, yet the foundation of that principle was laid down. In essence, the ILA refused to accept the theory of ‘absolute territorial sovereignty, but at the same time it accepted the doctrine of ‘limited territorial integrity’ by adopting the principle of ‘equitable utilisation’ (Salman & Uperty,

2002).

ILA adopted New York Resolution in 1958 and it again addressed and refined the approach initiated by the Dubrovnik Statement. The Resolution provided equitable and reasonable share to all basin states in the constructive utilisation of an international river. The principle of ‘equitable and reasonable utilisation’ was extensively discussed by ILA at its Tokyo and Helsinki meetings, held in 1964 and

1966 respectively. The Helsinki Meeting produced that principle as a guideline for the further work in the relevant field.

All above mentioned contributions of ILA from 1954 to 1964 on the utilisation of transboundary watercourses were incorporated and elaborated in the Helsinki

Rules, adopted by ILA in 1966. Although, Helsinki Rules also have no legal standing like previous statements and resolutions of ILA, yet until the UN Watercourses

Convention came into force on 19th of May, 2014, they remained single and most important set of rules to regulate and control the utilisation of transboundary streams.

Helsinki Rules consist of 37 articles, divided into 6 chapters and one Annex.

Article I mentions the scope of that Rules. It states that the Rules can only be applied to a transboundary river basin. Article II defines the term international drainage basin.13The definition given in the article II includes underground water that is connected to the surface water in the water system, flowing into a drainage basin. So,

Helsinki Rules can also be applied to the underground water that is connected to the surface water. Salman & Uperty (2002) assert that first time in history of international water law, underground water was also dealt by an international legal organisation.

The essence of the Helsinki Rules is the emergence of the principle of equitable and reasonable uses of an international watercourse (The Helsinki Rules,

1966, Article, IV) and it has become the basic principle of international water law.

Article V provides relevant factors14 to determine the reasonable and equitable share of the each basin state.

Article V (3) states that each factor must be given weightage according to its importance by comparing with other relevant factors. “In determining what is reasonable and equitable share, all relevant factors are to be considered together and a conclusion be reached on the basis of the whole.”

It is very important to note that the Rules do not separately recognise the principle of ‘not to cause significant harm’ but recognise the injury that may be caused by the use of an international river as one of the factors to determine reasonable and equitable utilisation15. Another factor which should be considered to determine the reasonable and equitable share is the historic and existing uses of the waters of a river basin16. Helsinki Rules have also incorporated the principle of “prior appropriation” that means “first in time, first in right.” So, it provides predominance to the principle of obligation not to cause significant harm by interfering existing uses.

However, prior appropriation is dealt as a factor to determine the equitable utilisation by the Helsinki Rules, not as a obligation to protect the status quo (Salman, 2007).

Evaluation of articles IV and V clearly highlights that Helsinki Rules does not provide a proper definition of equitable utilisation. However, assessment of equitable

38 uses is to be based on other relevant circumstances. So, it is obvious that the application of the principle of equitable utilisation will be different from basin to basin on the basis of the circumstances (factors) prevailing in each basin (Upreti,

2006).

The Helsinki Rules was not the last effort of the ILA in the course of codification of international water law. In 1972, the ILA adopted articles related to flood control (ILA, 1972: 46), and Rules to Administer International Rivers in 1976

(ILA, 1976: 213-266). At Belgrade Conference of 1980, it approved two set of rules.

The first addresses the flow of waters of transboundary streams, and other deals with the relationship between transboundary water resources and other natural resources and environmental elements (ILA, 1980: 362-373). In 1982, ILA adopted articles to prevent water pollution in the international river basins at its Montreal Conference

(ILA, 1982). Salman & Uperty (2002: 24) claim that all the above mentioned rules made by ILA were consistent with the principle of equitable utilisation, which is the foundation of the Helsinki Rules.

The ILA issued the ‘Complementary Rules Applicable to International Water

Resources’ at its Seoul Conference in 1986. These Rules clarify certain factors regarding the implementation of Helsinki Rules. In addition, these Rules also addressed the transboundary groundwater and extended the scope of Helsinki Rules to the aquifers, not connected to the surface waters of a river basin. To protect the underground water, the Seoul Rules recommended an integrated management approach to riparian states for their international aquifers, including the combined use with surface water. ILA also adopted supplementary rules on private remedies and pollution in 1996 (Salman, 2007).

It was noticed in early 1990s by the ILA that rules to govern the same issue adopted by it at various occasions are scattered in various instruments and it was decided to combine them in one instrument. The draft of combined rules17 was concluded by the Water Resources Committee of ILA in its meeting, held in

Campione, Italy, in June 1999. The Campione Consolidated Rules have sixty seven articles with two Annexes. One annex provides details regarding the formation of an international water resources association and the second provides mechanism of dispute settlement (Bogdanovic, 2001).

In 2000, ILA decided to update the Helsinki Rules with special reference to the contemporary customary international law on fresh water. After extensive work of the Committee on Water Resources, the final report was approved by ILA in the month of August, 2004 at Berlin. The outcome of the meeting was ‘The Berlin Rules on Water Resources’.

These Rules are most comprehensive. They contain seventy three Articles, fourteen chapters and cover various issues related to the water. It is very important to note that the scope of Berlin Rules was extended to management of both national and international watercourses. Salman (2007) concludes that it was not only a deviation of ILA from its previous contributions that extensively addresses the international watercourses, groundwater and river basins but also a deviation from the contributions of ILC and IIL in the field of international law on water.

Chapter II of the Berlin Rules deals with different issues related to water. It ranges from the participation of affected persons by the decisions related to the water management; combined management of underground waters, surface waters and other

40 waters; integration of water management with the management of other resources, to the minimisation of environmental injury.

Chapter III deals with the waters, shared by two or more than two nations. As

Article 12, bounds all basin states to administer the waters of a transboundary river within their respective territories in a reasonable and equitable way, keeping in view their obligation not to cause substantial injury to other riparian nations (ILA, 2004).

This approach is in sharp contrast with both of the Helsinki Rules and the UN

Convention. The major distinction between them is that both above mentioned legal instruments establish the right to reasonable and equitable share of all basin states.

Both instruments confirm the equality of rights of all basin states in utilising a common watercourse. Whereas, Berlin Rules recommend that each riparian state should manage waters of a shared river basin in a reasonable and equitable way. The

Berlin Rules define the term ‘manage’ in Article 3 (14). It includes development, utilisation, regulation, allocation, protection and control of the waters of a stream.

Thus, both of Helsinki Rules and the UN Watercourses Convention develop the right to equitable and reasonable share of each basin state; Berlin Rules establish the obligation of each riparian nation to manage a common watercourse in a reasonable and equitable way (Salman, 2007).

Another important difference is on the utilisation of the waters of the transboundary river basins. Berlin Rules requires managing the waters in a reasonable and equitable manner with special regard to the obligation not to cause significant harm to other co-riparian. On the other hand, Helsinki Rules provides certain factors to determine the reasonable and equitable share and to address the principle of obligation not to cause substantial injury to other co-basin nations. The UN

Watercourses Convention also adopted same approach but added a separate article to address the principle of ‘not to cause substantial harm’. However, UN Convention has subordinated the principle of ‘not to cause significant harm’ to the principle of

‘equitable and reasonable utilisation’ (Salman, 2007). In essence, Berlin Rules give equal weightage to the both principles and it is a great deviation of ILA from its previous work, especially the Helsinki Rules that developed the principle of reasonable and equitable uses which is considered as a fundamental principle in the contemporary international law on the uses of transboundary watercourses. Berlin

Rules also deviated from the UN Convention that subordinates the principle of

‘obligation not to cause substantial injury’ to the reasonable and equitable uses.

2.4.3 The International Law Commission (ILC)

The ILC was established by the UN General Assembly in 1947 for the gradual development and codification of international law. It was comprised of 34 members18, elected by the UN General Assembly for the term of five years. All members of ILC are elected in an individual capacity. They do not represent the member states (Upreti,

2006).

The Resolution No. 2669 (XXV) adopted by the UN General Assembly on

December 8, 1970, empowered ILC to start works on UN Convention on the Law of the Non-Navigational Uses of International Watercourses. It started its work in 1971.

Finally, it completed its work on the draft Convention and adopted it in 1994 in its

46th session and submitted to the UN General Assembly for final approval. From that time, formal and informal discussions among members of UN General Assembly and five Special Rapporteurs19 were made. Consequently, the UN General Assembly adopted it on May 21, 1997. It is known as UN Convention on Non- Navigational

Uses of International Watercourses (UNCIW). A total of 103 states20 voted in favour of the draft Convention, 3 voted against21, 52 abstained while 27 states did not attend the session.22 (Salman, 2007)

Article 36, sub clause (1) of the Convention says that the ratification of 35 states is required to bring the Convention into force. It was opened for the signatures on 21st of May, 1997 and remained open until May 20, 2000 (Article 34). During the due period of three years only sixteen countries signed the Convention. Article 36 also allows the states or regional economic integration organisations to continue their approval, acceptance or accession indefinitely. On 19th of May 2014, the Viet Nam acceded to the Convention as the 35th state and Convention came into force. State of

Palestine also acceded to as 36th state on January 2, 2015. Details are given in the following table;

Table 2.1 The states which signed, approved, accepted, acceded to or ratified

the Convention until 17th of August 2015.

Sr. Participant state Signature Approval Acceptance Accession Ratification No. 1. Benin 05-07-2012 2. Burkina Faso 22-03-2011 3. Chad 26-09-2012 4. Cote d’ Ivoire 25-09-1998 25-02-2014 5. Denmark 30-04-2012 6. Finland 31-10-1997 23-01-1998 7. France 24-02-2011 8. Germany 13-08-1998 15-01-2007 9. Greece 02-12-2010 10. Guinea-Bissau 19-05-2010 11. Hungary 20-07-1999 26-01-2000 12. Iraq 09-07-2001 13. Ireland 20-12-2013 14. Italy 30-11-2012 15. Jordan 17-04-1998 22-06-1999 16. Lebanon 25-05-1999 17. Libya 14-06-2005 18. Luxembourg 14-10-1997 08-06-2012 19. Montenegro 24-09-2013 20. Morocco 13-04-2011 21. Namibia 19-05-2000 29-08-2001 22. Netherland 09-03-2000 09-01-2001 23. Niger 20-02-2013 24. Nigeria 27-09-2010 25. Norway 30-09-1998 30-09-1998 26. Paraguay 25-08-1998 27. Portugal 11-11-1997 25-06-2005 28. Qatar 28-02-2002 29. South Africa 13-08-1997 26-10-1998 30. Spain 24-09-2009 31. State of Palestine 02-01-2015 32. Sweden 15-06-2000 33. Syrian Arab 11-08-1997 02-04-1998 Republic 34. Tunisia 19-05-2000 22-04-2009 35. United Kingdom of 13-12-2013 Great Britain and Northern Ireland 36. Uzbekistan 04-09-2007 37. Venezuela 22-09-1197 38. Viet Nam 19-05-2014 39. Yemen 17-05-2000 Source: (UNO, 2014).

The Convention is largely based on the general principles of the customary international law. Those principles were progressively developed by the state practices, decisions of national and international courts and contributions of the scholars of relevant area. Particularly, the Helsinki Rules of ILA and partly the work of IIL have been considered most important to develop international water law. The

Convention is comprised of 37 articles, seven chapters with an annex. The annex has

14 articles to deal with process of arbitration.

Article 1, sub-clause (1) of the Convention describes its scope. It clearly states that it only applies to the non-navigational uses. Sub-clause (2) of the Article 1 states that navigational uses are out of its scope except in a situation where non-navigational uses affect navigation or affected by navigation. Article 2 defines the term

“watercourse”. It includes not only the surface water but also the underground water that is connected to surface water.23Article 5 bounds all riparian nations to utilise the waters of an international watercourse in a reasonable and equitable manner when passing through their respective territories, keeping in view the rights of other concerned nations. Article 6, sub-clause (1) describes to utilise the water of an international watercourse within the meanings of Article 5 (in reasonable and equitable way), watercourse states are required to take into account all relevant factors24 and circumstances.25

Article 7 adopts the principle of ‘not to cause significant harm’ and requires the riparian states to utilise an international river, take all possible measures to prevent the causing of significant harm to other watercourse states. Article 7 (2) states that all watercourse states must obey Articles 5 and 6 of the Convention for eliminating or mitigating substantial harm on other basin states. As Salman & Uprety (2002: 28) analysed that both of the principles have been incorporated in the Convention but 45 prevailing view is that the Convention has subordinated the principle of ‘not to cause substantial injury’ to the principle of ‘reasonable and equitable uses’.26Other obligations vide articles 8 and 9 include the obligation to cooperate through the formation of joint commissions or mechanisms, regular data sharing and to notify other watercourse nations about planned measures with expected substantial injuries.27

Part III of the Convention deals with planned measures. This part has nine articles. It includes process of notification, duration of reply, obligation of the notifying state during the time of reply, notification reply, absence of reply, negotiations and consultations regarding the planned measures, criteria in absence of notification and implementation of planned measures on urgent basis (UNO, 1997).

Articles 20-22 have provisions to protect and preserve the ecosystem of the watercourses, keeping in view the principle not to cause significant harm. Articles 21 and 22 extend the scope of above mentioned principle that is incorporated in Article

7, sub-clause (1), to the preservation of the ecosystem of watercourse and human health. Article 33 with annex provides detailed provisions regarding the mechanism of dispute settlement and procedures (UNO, 1997).

2.5 Conclusion

About 300 watercourses, 100 lakes and a large number of underground aquifers are apportioned by two or more than two nations. Due to the rapid population increase, urbanisation, and industrialisation, these water resources are facing sensitive problems. Except few rivers in Europe, no important river basin on the globe is regulated by a treaty satisfying all the riparian states. Even, where treaties exist, the states are fighting over the interpretation and implementation of the said instruments.

In that critical situation, the world community needed an international instrument to deal with the conflicts over the water sharing and management of international watercourses. In the absence of any international legal instrument, four divergent theories emerged on international scene; that were the theory of absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty or limited territorial integrity and community of co-riparian states. Following the state practices, writings of the prominent scholars and decisions of the International Court of Justice, some internationally accepted customary and general principles of international law also emerged which are incorporated in modern international conventions, agreements and treaties. These are the principle equitable and reasonable utilisation, obligation not to cause significant harm, principles of notification, consultation and negotiation, principles of cooperation and information exchange and principle of peaceful settlement of disputes.

It is worth noting that there was still no comprehensive legal instrument to deal with the issues regarding non-navigational uses of the transboundary rivers till the end of 20th century. Feeling the dire need of such an international legal instrument, the IIL, ILA and ILC played a vital role to develop and codify international law on fresh water. The ILA adopted Helsinki Rules in 1966. Although, Helsinki Rules were not legally binding yet they greatly influenced the subject of international law on fresh water. This influence depends on the two aspects of the Rules. First is the principle of equality of rights of all basin states in utilising an international stream. It was endorsed by the ICJ in Danube River case, in 1997 and second influence is related to the factors that determine equitable and reasonable uses. These factors have largely been incorporated in UN Convention and Berlin Rules of ILA.

Although, UN Convention largely rests on the Helsinki Rules but the relationship between the principle of equitable utilisation and not to cause significant harm, introduced by the Convention has created considerable confusion. The Berlin

Rules of ILA (2004) have maximised this confusion. This ambiguity is one of the basic hurdles for nations in the way of signing and ratifying, or acceding to the UN

Convention (Salman, 2007).

The principles of equitable and reasonable utilisation and not to cause substantial harm are essence of the Helsinki Rules and UN Convention. Both instruments have subordinated later principle to the earlier. Helsinki Rules are not legally binding because those have not been approved by any international legal body.

On the other side, UN Watercourses Convention is adopted by the UN General

Assembly and it has become legally binding for the all UN member states since 19th of May 2014, when Vietnam acceded to the Convention as the 35th state.

End Notes

1 - An international watercourse is a stream which shares territory of two or more than two countries. 2 - 214 river basins were reported by the United Nations in 1977 which were shared between two or more countries. Same figure reappeared in another United Nations document which was published in 1978.See (Salman & Uperty, 2002: 3). Peter Gleick has reported 261 international river basins shared and managed by the two or more states. See (Gleick, 2000: 219) Centre for Law, University of Dundee, U.K. claims that there are 276 shared basins. See details at http://www.dundee.ac.uk/water/news/2014/article/united-nations-watercoursesconvention=enters- into-force.php 3 - After the analysis of the principle of absolute territorial sovereignty, scholars have concluded that the Harmon Doctrine was not the expression of international water law but it attests that there is no law in the subject and states are free to do as they wish. See (MacCaffrey, 1966: 549) 4 - Chinese Representative, Mr. Gao Feng said that every state has indisputable sovereignty over a watercourse which flowed through its territory. See Press Release, including United Nations General assembly vote on the UN Convention on International Watercourses, May 21, 1997, available at www.un.org/law/ilc/texts.status.htm 5 - According to the common law doctrine of riparian rights, the upper riparian land owner should permit the flow of a watercourse in its downstream channel without interrupting with its quality or quantity. For details of the doctrine of riparian rights, see (Teclaff, 1985: 6-20). 6 - Use your property as not to harm that of another (MacCaffrey, 1966). 7 - For example See, The Stockholm Declaration, Helsinki Rules 1966 and UN Convention 1997. 8 - These relevant factors are the geography and hydrology of the basin, population dependent on waters, social and economic needs of the each basin state, existing uses of waters, future needs of the

each basin state, availability of other resources and climatic and ecological factors. See, 1966 Helsinki Rules and 1997 UN Convention on international watercourses. See also (Rahman, 2009: 214). 9 - Madrid Declaration was issued on April 20, 1911. See International Regulations Regarding the Use of International Watercourses for the Purposes of Other than Navigation, adopted by the Institute of International Law (IIL). Available at (www.fao.org/docrep/005/w9549e08.htm) 10 - Convention was signed on April 20, 1921 at Barcelona. 11 - Geneva Convention is also known as “General Convention Related to the Development of Hydraulic Power Affecting More Than One State”. It was adopted in1923 at Geneva. For detailed study, See (Berber, 1959). 12 - Frontier streams are those that make the borders of two countries. 13 - An international drainage basin is a geographical area extending over two or more states determined by the watershed limits of the system of waters, including surface and ground waters, flowing into a common terminus (Salman & Uperty, 2002). 14 - Article V of the Helsinki Rules states that relevant factors which are to be considered include, but not limited to: a)-the geography of the basin; b)-the hydrology of the basin; c)-the climate affecting the basin; d)-the past and existing utilisation of the waters of the basin; e)-the economic and social needs of the basin states; f)-the population dependent on the waters in each riparian state; g)-the comparative costs of alternative means of satisfying the economic and social needs of each riparian state; h)-the availability of other resources; i)-the avoidance of unnecessary waste in utilisation of waters of the basin; j)-the practicability of compensation to one or more of the basin states as a means of adjusting conflicts among uses; k)-the degree to which the needs of a basin state my be satisfied, without causing substantial injury to a co-basin state. 15 - Article V (2) of the Helsinki Rules elaborates one of the factors to determine equitable utilisation “(k) the degree to which the needs of a basin state may be satisfied, without causing substantial injury to a co-basin state”. 16 - Ibid., paragraph (d). 17 - This is officially known as ‘The Campione Consolidation of the ILA Rules on International Water Resources, 1966-1999’. 18 - Members of the ILC are prominent legal expert in the various fields of international law. 19 - Richard Kinary, Stephen Schbell, Evansen, Stephen C. McCaffrey and Rosentok. 20 - Including Bangladesh, Finland, Jordan, Syria, USA, Mexico, Slovakia and Nepal. 21 - Burundi, China and Turkey voted against the UN Convention. 22 - Including Egypt, Ethiopia, India, Israel, Rwanda and France. 23 - Article 2, paragraph (1) and (2) of the Convention define term “watercourse” as “a system of surface waters and groundwater constituting by virtue of their physical relationship a unitary whole and normally flowing into the common terminus, parts of which are situated in different countries” (United Nations, 1997). 24 - These factors include: a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of natural character. b) Social and economic needs of the watercourse states concerned. c) Population dependent on the watercourse in each watercourse state. d) Effects of the use or uses of the watercourses in one watercourse state on other watercourse states. e) Existing and potential uses of the watercourse. f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect. g) The availability of alternatives, of comparable value, to a particular planned or existing use 25 - In comparing the factors under the Article 6 (1) of the UN Convention with the factors provided by the Helsinki Rules under Article V, it can be concluded that the factors under the UN Convention are largely based on those of Helsinki Rules. For example, factor (a) of the UN Convention has emerged from the factors (a), (b) and (c) of the Helsinki Rules. Factors (b), (c) and (e) of UN Convention are 49

almost same as the factors (e), (f) and (d) of the Helsinki Rules. Factors (d) and (g) of the UN Convention are based on the factors (k) and (h) of the Helsinki Rules and factor (f) of UN Convention is also based to some extent on factor (i) of the Helsinki Rules. Similar to the Article V of the Helsinki Rules, the Article 6 of the UN Convention describes that weightage given to each factor is to be determined by its importance in comparison to other relevant factor and in determining what is reasonable and equitable use, all relevant factors are to be considered collectively and a conclusion be reached on the basis of whole (Salman & Uperty, 2002). 26 - In depth analysis of the Articles 5, 6 and 7 of the Convention leads to the conclusion that obligation not to cause significant harm has been subordinated to the principle of reasonable and equitable utilisation. Moreover, in its judgment regarding the Gabcikovo-Nagymaros case, the International Court of Justice emphasized the importance of the principle of equitable and reasonable utilisation and no reference was given to the principle of obligation not to cause significant harm. 27 - See Articles 8 and 9 of the UN Convention for details.

Chapter 3

Water Resources of the Indus River Basin

3.1 Introduction

Understanding geographical environment of a land is essential for a study of the rivers and irrigation system. A river basin is defined as an area, drained by a river and its tributaries. The Indus River System comprises of the main Indus and its five important tributaries; the Jhelum, the Chenab, the Ravi, the Sutlej and the Beas on eastern side and three prominent tributaries; the Kabul, the Kurram and the Swat on western side, which make it the most important river basin of the world. In addition, there are also many small tributaries such as Haro and Soan rivers, Kirther Range hill torrents, D. I. Khan hill torrents and D. G. Khan hill torrents which drain directly or indirectly into the Indus River Basin (IRB). Total area covered by the IRB is about

365,000 square miles (944473 square km), which is about 148,377 Km² more than the total area of Pakistan. (Michel, 1967: 29) Geographically, the IRB is divided into highlands (located in Pakistan and its adjacent countries) and low lands (Indus Plains of Pakistan). IRB spreads over the territories of China, India, Pakistan and

Afghanistan. Indus River catchments extend from its source near Lake Mansrovar at

Tibet (China) in Himalayan Mountains range in the north-east to the Arabian Sea

Coast situated in the south-west of Pakistan. On the western side, Hindukush

Mountain Range in Afghanistan and Central Brahui and Kirthar mountain ranges in

Sindh (Province of Pakistan) roughly bound, whereas on eastern side the River Sutlej works as the boundary line of the IRB. About seventy five percent of the total area of

IRB is located in Indian occupied state of Jammu and Kashmir and Pakistan, whereas

51 ten percent is in Tibet (China), eight in Afghanistan and remaining seven percent in

India (Siddiqui, 2010).

Fig. 3.1: Location of the Indus River Basin

Source: (Kaptaan, 2015). Excluding Indian occupied territory of Jammu and Kashmir, 58 percent of the total area of IRB (553416 Square Km) is located in Pakistan (Malik, 2005), which makes

70 percent of the total area of the country. Salman & Kishor (2002) and Garg (2003) believe that the total area of IRB is about 450,000 square miles; whereas the study conducted by the International Bank for Reconstruction and Development (IBRD) at the time of negotiations for Indus Basin Water Treaty (IWT) shows that the total area of IRB is 222, 46 million acres (Malik F., 1991). This figure almost corresponds to the above mentioned figure of 365, 000 square miles. Nazir (1993) has also provided same figures with minor differences.

Table 3.1: Catchment Area of the IRB (in Sq. Miles)

as Country um - % % % % % % % Ravi Total Be Indus Sutlej Jhel Chenab

Afghanistan 29200 11.5 ------29200 8

India - - - - 1735 6.7 4408 28.1 12138 29.6 7719 100 26000 8

Jammu & 47298 18.4 11171 52.3 10831 41.6 ------69300 19 Kashmir

Pakistan 158078 62.5 10188 47.7 13469 51.7 11333 71.9 11232 27.6 - - 204300 56

Tibet 18062 7.6 ------17838 42.8 - - 35900 9 (China)

Total 252638 100 21359 100 26035 100 15741 100 41208 100 7719 100 364700 100

Source: (Nazir, 1993).

Climatically, IRB falls in the sub-tropical region located on the western

margin of the Monsoon region and eastern margin of the temperate cyclones which

originate over and across the Mediterranean Sea. Although it receives widespread

rainfall in summers but total annual rainfall places it in desert and semi desert climatic

conditions. Only a small area around Murree Hills receives more than 40 inches of

rain, mostly during the Monsoon period (July to September) and falls in humid

category. The region with the heaviest rainfall is bounded by an isohyet of 750

millimetres. Excluding coastal and mountainous region, the Indus plains are

considered as a single climatic unit with semi-arid climate and low average rainfall

(Michel, 1967: 37). About fifty percent of the total area of Pakistan (which occupies

the maximum area of IRB) falls in arid climatic zone and forty percent in semi-arid

region. Only ten percent of the country can be placed in humid category. The rainfall

sharply decreases northward to south-west ward from 30 to less than 5 inches in Thar

Desert and Baluchistan. It also varies from region to region and year to year. Due to

this variation in rainfall, the river flow fluctuates heavily. Resultantly, the IRB

depends on river and ground water for about eighty percent of its agriculture (Malik,

2005). Climatically, IRB is divided between two seasons; the summer or kharif (April

- September) and winter or rabi (October – March). In the summer season, the monsoon rainfall is prominent phenomenon which takes place during the short period of two months (July – August). Locally, this period of heavy rainfall is called ‘barsat, or rainy season. The summer monsoon provides 50-75 percent of total annual rainfall in the basin (Ahmad, 1964: 33). Johnson (1979: 55) observes that during the monsoonic period as much as 25 millimetre rain can fall in one hour. The upper part of the IRB mostly consists of glaciated mountains which does not receive rainfall during the monsoon period. Its western tributary, the River Kabul also starts from the glaciated areas of northern highlands and has little effect of monsoon rains. The five eastern tributaries are also fed by the snowmelt but they are heavily influenced by the summer monsoon rainfall. The maximum discharge from the glaciers melt is calculated during the three months of April to June while the monsoon rainfall occurs during the months of July to September.

Diversity of terrain in the IRB results in diversity of temperatures at any given time. Seasonal variation in temperature is also substantial, due to the high temperatures of summer’s then extreme cold in winters. Temperatures of the hottest months are very high, except in the mountainous areas. In the plains the hottest month is June and in the Hilly areas is July. In Hilly areas temperature is influenced by altitude and by the face of the terrain, and thus vary from place to place (Kureshy,

1993: 42).

In plains temperatures in the summers are uncomfortably high. At most stations in the plains, monthly mean temperature of June is 38Cº or above. Generally, the extreme maximum temperature rises above 47Cº. Jacobabad is considered the thermal pole of the Indian sub-continent, where the mean maximum for June is 49Cº,

54 and the mean minimum 33Cº. In the coastal areas, the summers are milder with 35Cº of mean maximum in June and 29Cº of mean monthly minimum (Kureshy, 1993).

Table: 3.2: Absolute Maximum and Minimum Temperature for the Hottest Month, June/July, in Degree Cº.

Absolute Absolute Station Maximum Minimum Drosh 45 12 Murree 35 6 Parachinar 39 7 Peshawar 50 13 Lahore 48 18 Multan 49 20 Hyderabad 50 20 Karachi 47 22 Source: Unpublished data collected from the Regional Meteorological Office, Lahore

3.2 Physiography of the Indus River Basin

Khan (1991) stated that Indus River Basin is divided into two major physiographic regions i.e. Western Highlands and the Indus Plains. Western

Highlands emerged by the process of the mountain building during the Tertiary era.

These highlands stretch from the coast of Makran in the south to the Pamir plateau in the north of the IRB and cover the most of Baluchistan, Khyber Pakhtunkhwa

(Former North Western Frontier Province of Pakistan), Northern Areas of Pakistan, most of the Jammu and Kashmir and a part of Punjab. The Western Highlands can be sub-divided into the following geographic divisions.

 Mountainous North

 SafedKoh and Waziristan Hills

 Sulaiman and Kirthar Mountains

 Potwar Plateau and Salt Range

Fig. 3.2 Physiographic Regions of the Indus River Basin

Source: (Khan, 2004). For the present study, the Mountainous North is the most important region because maximum water flowing in the Indus River System originates from this area.

It covers the northern part of the Basin and includes the Himalayas, the Karakorum and the Hindu Kush mountain ranges which spread like a curve on the northern end of the IRB and save Indus Plains from the effects of the cold winds coming from the

Siberian region and also become a source of Monsoon rainfall in the Indus Plains.

These mountains are unique in a sense that the largest glaciers after the poles are situated in these mountain ranges namely Siachin, Hispar, Biafo, Baltoro, Baltura,

Barpu and Hopper. The snowmelt of the glaciers, scattered in the region, is the most

56 important source of runoff in the rivers of Indus System. Furthermore, it comprises of

7 highest peaks in the world after the Mount Everest including K2, Nanga Parbat and

Rakaposhi with heights of 28,253 feet, 26, 600 feet and 25,500 feet respectively

(Khan, 2004).

In northern part of the Indian subcontinent, western part of the Indo-Gangetic plain is formed by the Indus Plain. The Indus plain runs towards the Arabian Sea with gentle slope (whose average gradient is one meter to five kilometres) (Kureshy, 1993:

20). The Indus Plains cover a vast area of the IRB. Cultivable area within Pakistan is about 75,000,000 acres. Indus plains spread between the Siwalik mountain range in the north and Arabian Sea in the South, Salt Range in the north-west and dry bed of the old Hakra and Nara rivers in the south-east, Suleiman Piedmont and Kirthar

Range in the west and hydrologic boundary of the River Sutlej in north-east. Indus

Plains extend over 1000 miles from the Siwalik Range to the Arabian Sea coast. It comprises Peshawar Valley, Punjab Plain, Bahawalpur Plain, Sindh Plain with its adjoining Karachi and Kachi Plains, a portion of Indus Flood Plains and Suleiman

Piedmont. The province of Khyber Pakhtunkhwa, pre-partition Punjab up to the west of the Sutlej River (old Ghaghra River), Province of Sindh (Pakistan) and a part of

Baluchistan exist within the bounds of the Indus Plains (Malik, 2005). Indus plain is divided into Upper Indus Plain and Lower Indus Plain. The Upper Indus Plain starts from foothills of the northern mountains in the north-east and ends at Mithankot1 in the south-west of Punjab, where all the tributaries of Indus join it and the Lower Indus

Plain starts and ends at Arabian Sea Coast. Upper Indus Plain is further subdivided into four interfluves (locally known as ‘doabs’)2, Sulaiman Piedmont or derajat and

Bahawalpur plain. These interfluves are known as Sindh Sagar Doab3, Chaj Doab4,

Rechna Doab5 and Bari Doab6. These are the most important physiographic features

57 of the Upper Indus Plain which were formed by the deposits of the five rivers of the

Punjab which are about 6-18 meters above the river course (Nijim, 1969: 32).

Lower Indus Plain lies totally in the province of Sindh and it is formed by the changing course and deposits of the single river whereas the Upper Indus Plain totally lies in the Punjab Province which has been formed by the deposits of the Punjab rivers (Ahmad, 1964: 22). The lower Indus Plain has flat slope with an average gradient of only one meter in ten kilometres. Predominant landforms of the area are meander and active flood plains (Kureshy, 1993).

3.3 Hydro-Sources of Indus River Basin

Water sources of IRB can be classified as primary and secondary sources.

Primary sources can also be sub-divided as rainfall and glaciers. There is uneven distribution of rainfall throughout the basin. Maximum area of IRB has arid or semi- arid climatic conditions. The entire Sindh, the southern part of Punjab and Baluchistan are situated in the arid climatic zone. These areas receive average annual rainfall less than 250 millimetres. Without irrigation, agriculture is impossible. Semi-arid areas include northern Baluchistan, northern Punjab and major parts of the Khyber

Pakhtunkhwa (KPK). In these areas, annual rainfall ranges from 250 millimetres to

750 millimetres. Only a small portion of the IRB falls in the humid climatic zone7.

Humid climate is found only in a small area of the northern Punjab with adjacent areas of KPK and a small area around Parachinar. These areas receive rainfall more than 750 millimetres. However, due to variation and irregularity of rainfall, agricultural activities are impossible. Maximum area of the IRB is situated in

Pakistan. About 50 percent of Pakistan situated in arid region, 40 percent in semi-arid

58 and only 10 percent in humid climatic zone. The Monsoons and Western Disturbances are the two main sources of rainfall in IRB (Khan, 2004).

In summers (from July to September), IRB receives maximum rainfall which is a result of Monsoons. Eastern portion of IRB receives heavy rainfall because the

Monsoons enter into the region from eastern side. The northern parts of the Punjab receive main Monsoons and as a result, northern portions of the region get more rainfall. It gradually decreases southwards in the Indus plains. Consequently, southern parts receive less than 125 millimetres. During the Monsoon period, the highest recorded rainfall is 830 millimetres at Murree (Khan, 2004).

By crossing the territories of Afghanistan and Iran, the Western Disturbances enter into the IRB from the western side. During their long passage, they lose their maximum moisture. So, IRB receives a little amount of rainfall through this source.

The Western Disturbances operate from December to March. Thereafter they become weak and less frequent. During this period, the maximum 125 millimetres rainfall has been recorded in the extreme north of Pakistan while minimum recorded rainfall is less than 25 millimetres in most parts of Balochistan and Sind (Kureshy, 1993).

Table 3.3: Annual Average Rainfall in various parts of Pakistan (Millimetres)

Period Pakistan Punjab K. P. K Sindh Balochistan

April-September 158 254 308 131 72

October-March 80 79 228 16 63

July-September 118 202 279 109 50

Annual Average 238 333 536 147 135

Source: (Alam, 2006).

Fig. 3.3 Rainfall Regime

Source: (Khan, 1991). Second important primary source of water in IRB is glaciers. It is blessed with large reservoir of fresh water in the shape of glaciers. In the northern highlands, snow fall is a common phenomenon. The Karakorum, the Himalayas and the Hindu Kush

Mountain ranges, with average height of 20000 feet, have the largest glaciers in the world after the Antarctic and Greenland ice sheets. The glaciers in this region cover an area of about 2250 Km² which provide maximum rivers’ run off in summers.

These frozen reservoirs of the fresh water are a regular and sustainable source of supplies to the river systems of the South Asia. They generate about eighty percent flow of the Indus River System which is mostly used for irrigation and hydroelectric power generation. The Karakoram and the Himalayas are considered as the highest

60 mountain ranges on the globe. Both are largely covered with snow. These mountains are known as Mustagh (Ice Mountains) by the local population. The glaciers developing in these areas have a very high flow rate, ranges from 100 meters to 1000 meters per year. Due to the high altitudes, many glaciers are situated in these areas and at least ten have sizable length (Khan, 2004)

Table 3.4: Important Glaciers of the IRB

Glacier’s Name Mountain Length in Source of the Range Km River Siachen Karakorum 72 Shyok

Biafo Karakorum 62.5 Braldo

Hispar Karakorum 61 Hunza

Batura Karakorum 59 Hunza

SakizJarab Hindu Kush 30.4 Kunhar

Tirich Mir Hindu Kush 22.4 Kunhar

Rupal (S) Himalayas 17.6 Astor

Rupal (N) Himalayas 16 Indus

Rich Hindu Kush 16 Kunhar

Phangatori Himalayas 15.5 Indus

Source: (Khan, 2004)

Secondary sources of water can also be sub-divided into surface water and groundwater. The water received by glacier’s melt and rainfall create water channels

(rivers) on the earth surface. Rivers collect water throughout their journey and discharge it into the neighbouring ocean or sea. In case of IRB, heavy rainfall and glacier’s melt generate Indus River System in the northern highlands and after passing through the Indus plains, it empties itself into the Arabian Sea near Karachi. It

61 consists of main Indus along with its five major eastern tributaries namely the Jhelum, the Chenab, the Ravi, the Sutlej and the Bias and western tributaries the Kurram, the

Swat and the Kabul.

It is estimated that the Indus River System emerged some fifty million years ago when the Gondwanaland (Indian plate) first collided with Angaraland (Eurasian plate). The Tethys Sea was located between the two plates which was shallow and sandy. It was up-folded to form the great Himalayan Mountains in the Mesozoic era8.

The undamaged snow of the Himalayan region became primary source of water to the

Indus River System. (Khan, 1995)

Geographically, IRB contains a system of huge water supply variations. The

Lower Indus Plains receive less than 100 Millimetres (mm) mean annual rainfall whereas foothills of the northern mountains receive more than 750 mm. Due to this great variation of rainfall, water flows in the Indus System fluctuates from year to year and season to season. About ¾ of the flow is recorded from the month of June to

September (Alam, 1998; Salman & Uprety, 2002). The flow of the Indus River

System is the most important and major surface water resource of the IRB. River flow of the system is being recorded at Rim Stations since 1922. The details of the inflow of the all rivers of the Indus System are shown in the following table.

Table 3.5: Average Annual Runoff of the Indus River System (1922-60)9

River Rim Station Average Annual Runoff (1922-60) (MAF) Ravi Madhopur 6 Beas Mandi Plain 13 Sutlej Rupar 14 Indus Attock 89 Jhelum Mangla 23 Chenab Marala 23 TOTAL 168 Source: (Johnson, 1976).

3.3.1 The Indus River

The River Indus10 is recognised with different names in different regions of the world. In Tibetan Plateau from where it originates, it is known as Sengge Chu

(Lion River). Chinese call it as Yindu and in Indian mythology it is known as Sindhu

(Lion of rivers or ocean). Ross (1883) stated that the Muslims claim that the word is derived from Sindh (brother of Hind and son of Prophet Hazarat Nuh), whose descendants ruled over the country for several centuries. So in Pakistan, it is famous as Sindh in Urdu literature. People of KPK and Sindh recognise it as Abasin and

Mehran respectively. The Greeks called it Sindhos and in Italian and English, it is known as Sindhus and Sindh respectively (Malik, 2011). Notwithstanding its several names, internationally it is recognised as the River Indus.

The earliest description of the Indus River System is found in the Rig Veda, a

Hindu Scripture, which was composed about 1500 BC, as Sapta Sindhu means seven rivers viz. Indus (Sindhu), Jhelum (Vitasta), Chenab (Asikni), Ravi (Parsuni), Sutlej

(Sutudri), Beas and Sarasvati (represented by the dry bed of Ghaghar river (Bengali,

2005).

The Indus originates from Singikabad spring, north of Kailash Parbat

(Mountain), in Himalayan range in Tibet (China) at an altitude of about 18,000 feet above the mean sea level. Singikabad Spring is located few miles in north of Lake

Mansrovar, the source of River Sutlej (Malik, 2011). In the beginning, it flows north- westward for a distance of about 257 km, where River Gartang (Ghar) joins it near the

Tibetan town Tashigong. The two rivers are of much the same size when they meet.

Gartok, the capital city of the western Tibet which is one of the highest towns, is situated on the bank of the Gartang. After a short distance below the merging point of

Indus and Ghar Rivers, it enters in the Jammu and Kashmir (a disputed territory between India and Pakistan). Then it flows through a long flat of alluvium and reaches Leh in Ladakh, where it joins the Zaskar River near the crossing point of great trade route to central Asia via the Karakorum Pass. Another tributary, the Dras River, collecting the drainage of the southern slopes of the Deosai Mountains and passing through Kargil, joins the Indus near town of Marol. The Indus enters Pakistan at an elevation of about 8,000 ft. Flowing in the north westerly direction, it passes near the

Skardu and flows in a dry gorge for 400 miles and two major tributaries, the Shyok

River and the Shigar River join it near Skardu. The River Shyok is drained by the famous Siachen Glacier11 system whereas the Shigar collects its drainage from the

Baltoro Glacier flowing from K2 and Gasherbrum ranges. About 70 miles downstream Shandur Lake, the Gligit River joins it on its right bank near the town of

Bunji. Ten miles below of the confluence with River Gilgit, the Astor River joins it

(Naqvi, 2013). The Indus receives the Siran River on its left bank near the Tarbela village. Before entering into Upper Indus Plain at Kalabagh, Kabul and Soan rivers join it (Grag, 2003).

After flowing through the highest mountain ranges of the world for about 1000 miles, the river enters in the Punjab Plains. It’s most important five tributaries, the

Jhelum, the Chenab, the Ravi, the Sutlej and the Beas join it near Mithankot near the boundary line of the provinces of the Punjab and Sindh. After flowing more 600 miles in the Lower Indus Plain, it empties itself into the Arabian Sea. Its catchment area is about 180,000 square miles. During its long journey of about 2000 miles 32 tributaries join it. There detail is shown in the following table.

Table 3.6: Tributaries of the River Indus

Name of the Length Name of the Length Name of the Length

Tributary (Miles) Tributary (Miles) Tributary (Miles)

Singghi River 192 Kohat Toi River 94 Vidor Hill Torrent 60

Zaskar River 200 Terri Toi River 86 Mithawan Hill Torrent 45

Dras River 85 Soan River 132 Kaha Hill Torrent 90

Shyok River 400 Kurram River 200 Chanchar Hill Torent 70

Shirgar River 80 Tank Zam River 125 Jhelum River 724

Gilgit River 140 Gomal River 210 Chenab River 770

Astor River 70 Zhob River 230 Ravi River 559

Siran River 75 Vihowa Hill Torrent 130 Beas River 460

Kabul River 310 Sanghar Hill Torrent 70 Sutlej River 964

Harro River 86 Sori Lund Hill Torrent 50 Pitok Hill Torrent 50

Main Shori Hill Torrent 90

Source: (Siddiqui, 2010).

3.3.2 The Jhelum River

It is known as the Vitasta in the Rigveda, Vyeth in Sanskrit and historians of the Alexander the Great called it as Hydaspes. Early Muslim historians called it as

Bihat, Wihat or Bihatab and it is Biyatta or Jailam in Alberuni’s India (Naqvi, 2013).

The River Jhelum originates from a deep spring at Verinag in the upper part of the

Indian held state of Jammu and Kashmir and north western side of the Pir Panjal

Range, north-east of the Banihal Pass, at an elevation of 17,000 ft. It is permanently fed by the snows of the Liddar valley through Liddar River. The Adpat, Bringi and

Sandran rivers having formed a single stream join the Jhelum near Anantnag on the right bank. Near Srinagar, it drops into the Wullar Lake at an elevation of 5,180 feet.

Running further down, it enters into a narrow gorge near Baramula, and flows almost in westerly direction up to Muzaffarabad where River Neelum (Kishanganga) joins it

65 on the right bank. The merging site of these two rivers is called Domel, which means joining point of two rivers. In the Indian held Valley of Kashmir, about 160 km course of the river is used for navigation. About seven miles south of Domel, it is joined by another 150 Km long Kunhar River. A little above the Mangla reservoir, the river Poonch also joins the Jhelum. It enters into the Indus Plains north-east of the

Jhelum city. Further travelling 322 Km southward, it joins the River Chenab at

Trimmu near Shorkot in district Jhang (A district of the Punjab province). Its total length from its origin to Trimmu Headworks is about 510 miles and catchment area is

24,700 square miles (Grag, 2003). River Jhelum has ten important tributaries.

Table 3.7: Tributaries of the River Jhelum

Length Length Name of the Tributary Name of the Tributary (Miles) (Miles) Neelum (Kishanganga) 165 Poonch 115

Kunhar 105 Suketar 35

Mahi 32 JabbaKas 18

Gun 20 Kahan 42

Kanshi 60 Bunha 72

Source: (Siddiqui, 2010).

3.3.3 The River Chenab

It is the Asikini of Rigveda, Akesines of the historians of Alexander the Great and Chandraha or Chandrabhaga of Alberuni’s India (Naqvi, 2013). The Chenab is the longest river of the Punjab which rises from the Chamba range in Kulu and

Kangra districts of Indian state, Himachal Pradesh, at an elevation 16,000 ft. It is formed by the two streams, the Chandra and Bhaga (Grag, 2003). It flows about 360 miles through the Pangi valley of Himachal Pradesh and sub-mountainous region of

66 southern Kashmir. After running about 348 miles, it leaves the mountainous region near Akhnoor and enters Pakistan near Diawara, a village of district Sialkot, a short distance north of the Marala Barrage. Upstream of Marala Headworks, its two prominent tributaries, Manawar Tawi and Jammu Tawi join it. In Pakistan, it runs about 410 miles up to Mithankot. In its passage, the River Jhelum joins it at Trimmu, the Ravi below the Sidhnai Headworks and the River Sutlej joins it at Panjnad. The total length of the Chenab River at Mithankot is about 770 miles and catchment area is 26,170 square miles of which 10,915 square miles lie in Jammu and Kashmir, 1740 square miles in India and 13,521 square miles in Pakistan. (Malik, 2011) Siddiqui

(2010) stated that the Chenab has 12 major tributaries, given in the following table.

Table 3.8: Major Tributaries of the River Chenab

Name of the Length Name of the Length Name of the Length Tributary Tributary Tributary (Miles) (Miles) (Miles) Chandra 92 Jammu Tawi 105 Halsi Nallah 35

Bagha 40 Manawar Tawi 100 Bhimber Nallah 64

Bhut Nallah 46 Doara I Nallah 31 Palkhu Nallah 75

Maru 80 Doara II Nallah 35 Budhi Nallah 41

Source: (Siddiqui, 2010).

3.3.4 The River Ravi

It is mentioned as the Parushni in Vedas and Hydraotes by the historians of the Alexander the Great (Naqvi, 2013: 17). The Ravi is the shortest river of the

Punjab. It originates from Himalayas in the Kulu Mountains of Kanga district of

Himachal Pradesh, state of India. It flows westward through a mountainous basin bounded by the Pir Punjal Range on the northern side and Dhaola Dhar ranges on southern side. Then it enters into the Punjab plains in district of Gurdaspur and forms

67 the boundary between India and the state of Jammu and Kashmir for 25 miles with a general south-westerly course. It meets the headworks of Bari Doab Canal at

Madhopur. After 28 miles down it runs along the Indo-Pakistan border and enters into

Pakistan a short distance above the Ravi Siphon about 66 miles upstream of Lahore.

After passing through the Balloki Headworks, it joins the Chenab below the Sidhnai

Barrage. Total length of the River Ravi is about 560 miles and catchment area is about

15,560 square miles of which 6,000 square miles lie in Pakistan. The hilly catchment area is about 3514 square miles which lie in the Lesser Himalayan Mountains and

Himalayan Piedmont, in India. The remaining catchment area of about 12046 square miles is primarily agricultural land which lies in plains of both India and Pakistan

(Malik B. A., 2011). There are five major tributaries of the River Ravi naming as the

Ujh River, the Bein, the Basanter, the Deg and the Hudiara Nullah. (Siddiqui, 2010)

3.3.5 The River Beas

It is the Arjikiya of the Vedas, Hyphasis of Alexander’s historians and Biyah in Alberuni’s India (Naqvi, 2013, p. 17). Garg (2003) describes that River Beas rises in the north of Rohtang pass, southern end of the Pir Punjal Range, at the elevation of

4206 metres (13,000 ft) in Kulu district and enters the Kangra district of the Indian state of Himachal Pradesh at Singbol. Mostly it flows fairly at a steep slope in its upper reach in westerly direction. On reaching in the Shiwalik hills of Hoshiarpur district, it turns northwards, then bending round the base of the hills; it takes a southerly direction and flows through a George from Larji to Talwara. Finally, it enters the plains of the Punjab to join Sutlej at Harike. Its total length is about 460 km and it lies entirely in Indian Territory. Its total catchment area is about 6425 square miles. Malik (2011) stated that in middle ages it was the most important river of the

Indus Basin. It flowed in its old bed Hakra or Ghaghara till 1245 A. D and Sutlej was its tributary then.

Fig. 3.4 Indus River System

Source: (Mushtaq, 2011).

3.3.6 The River Sutlej

It is the Sutudri of the Vedas and mentioned as Satarudra or Shataldar by the

Alberuni (Naqvi, 2013: 18). The River Sutlej emerges in the highlands of Western

Tibet in the Kailash mountain range, within 100 miles from the source of the Indus, at an elevation of 15,000 ft. It is fed by the twin lakes of Mansarovar12 and Rakas. It is relatively a young river. The upper most part of the Sutlej is separated by the Kilash

Mountain Range from the valley of the Indus. Flowing north-westerly direction; it crosses the Himachal Pradesh and enters the territory of Indian Punjab at Shipki-la

Pass in the Hoshiarpur district. The River Beas joins it at Harike. It runs more westerly after Harike and enters in the lands of Pakistan a few miles south-west of

Ferozpur. It flows through Bahawalpur and eventually joins the Trimab (the combined waters of the River Chenab, the Jhelum and the Ravi) three miles above the Punjnad.

Onward of this confluence, it takes the name of River Punjnad. Further downstream, the River Punjnad joins the River Indus at Mithankot. Total length of the river is almost 958 km and its catchment area is about 46553 square miles. It is the longest among the rivers of Punjab (Bengali, 2005). Eight tributaries join it during its course and except one; all join it in the Indian Territory.

3.3.7 The River Kabul

Aside from the five rivers of the Punjab, River Kabul is the sixth most important right bank tributary of the Great Indus. It is also an international river which rises at an elevation of about 10,800 ft at the foot of the Unnar pass of southern

Hindukush Mountain Range in Afghanistan. It enters Pakistan little above the Warsak

Hydro Electric Power Station in Khyber Pakhtunkhwa. Its main tributary, the Chitral

River rises north eastern side of the Tirch Mir and flows for 200 miles within the territory of Pakistan under the name of Kunhar River and then enters into the boundaries of Afghanistan. It joins River Kabul about 50 miles upstream of Pakistan-

Afghanistan border near Jalalabad. Below the Warsak Power Station, River Kabul is joined by the Swat River on the left bank and the Bara River on the right bank. After taking the flow of the Kalapani River, three miles downstream of Nowshera, it joins the River Indus upstream of the Attock Fort (Grag, 2003). Total length of the Kabul

River is 298 miles with a catchment area of 30058 square miles. The catchment area of the River Kabul and its all tributaries in Afghanistan is about 26023 square miles.

3.3.8 The Kurram and Gomal Rivers

The Kurram and Gomal Zam are two other small tributaries of Indus with a length of 116 miles and a catchment area of 2632 square miles; join it from the western side below Kalabagh. Several other small tributaries of Indus such as Kohat,

Tai and Tank etc. also join it on the right side. Total length of the western tributaries of Indus is about 600 miles (Siddiqui, 2010).

3.4 Characteristics of Rivers Flows

Although all important rivers of the Indus System are perennial but there are apparent fluctuations in their flows during the year. It is recorded minimum during the winter and maximum in the rainy season, from July to September. Flow in the main

Indus remains lowest from mid-December to mid-February. Then it starts rising slowly till month of March and from the end of April to mid-July, it rises very rapidly.

Peaks almost occur during the mid-July to mid-August. After the month of August, the Indus falls rapidly. (Gulhati, 1973)

The Jhelum River has a winter minimum from mid-November to end of

January. It rises slowly until mid-February and more rapidly till the end of May. Its peak is almost flat, extends from May to early July and then river falls gradually till the end of September. After this period, its decline is slower. The winter minimum of the River Chenab is also found in the same period as the River Jhelum.

After this period, it rises much slowly and even it cannot be easily noticed till the start of May but from May to the end of July, the rate of rise is much higher than

71 in the River Jhelum. Post-monsoon period has almost same characteristics as Indus.

The Ravi River with small quantum of supplies behaves somewhat like the Chenab.

The Sutlej and the Beas have their minimum winter from mid-November to mid-

February. After this period, the Sutlej rises slowly until April and Beas till the end of

June. Peak flows are recorded between mid-July and mid-August. Then they fall rapidly (Gulhati, 1973).

The cumulative average flow of the Indus River System from the month of

April to June is approximately four times higher than the six months of winter (from

October to March) and the average rate of flow in the monsoon period (from July to

September) is seven times higher than that in winter. With the seasonal and spatial variation in the river flow, the year-to-year variation in the total river supply is also an important characteristic of Indus System and this phenomenon makes more difficult the development and use of river resources in the Indus Basin (Gulhati, 1973). The most prominent feature of the rivers of the Indus Basin is variability in runoff.

Though the actual water supplies are very large yet availability varies greatly by season to season and place to place.

Fig. 3.5 A Hydrograph of the Punjab Rivers

Source: (Gulhati, 1973).

The second important secondary source is ground water. The ground water aquifer in the sweet zone of the Indus Basin is a reliable and rechargeable secondary source. It plays a major role in providing fresh water for irrigation. It has been used

73 for centuries for animal and domestic purposes but for the last two decades, it is being extensively used with the help of the shallow tube wells operated by the electric, diesel and mechanical power. More than 0.6 million tube wells are operating in the

Indus Basin (Brisco & Qamar, 2007).

3.5 Politics of the Water-Resources Development in Pre-Partition India

3.5.1 Introduction:

Indus River Basin is located in the territories of four countries; Pakistan, India,

Afghanistan and China. More than forty percent of the total area of the Basin is located on the higher altitude at an elevation higher than 2000 m (above the mean sea level). Total population of the Basin is about 193 million of which seventy two percent lives in Pakistan, twenty three percent in India (including Indian occupied territory of Jammu and Kashmir), five percent in Afghanistan and very little population in Chinese part of the Basin due to the rough topography. Seventy four percent of the total irrigated area of the Basin is located in Pakistan and about twenty four percent (including Indian occupied territory of Jammu and Kashmir) in India

(Laghari, Vanham, & Rauch, 2011).

Various forms of irrigation are being practiced in the Indus Basin to irrigate land for agricultural purposes, including dug wells, sailab (flood), inundation canals, and later perennial canal networks. Rivers, streams, rainfall and groundwater are the main sources of water (Khan, 2004).

Open wells have been one of the earliest forms of irrigation. Groundwater was lifted by draft animals or manually. It irrigates small areas close to the human habitats. Gulhati (1973) claims that apart from supplementing on inundation and non-

74 perennial canals, about 4.73 million acres of land were irrigated only by wells annually. Open wells have been replaced by tube wells with electric or mechanical prime movers (Malik, 2005).

Flood is another important source of irrigation in the Indus Basin. It is a common practice in the river flood plains mostly in Sindh and southern Punjab. In summers the Indus overflows its banks at high stages inundating low areas. The area benefited by flood varies from year to year depending upon river levels. About

300,000 acres13 of land is irrigated by floods in kacha lands14 along the Indus in Sindh

(Malik, 2005).

Canal irrigation in the Indus Basin is classified into perennial, non-perennial and inundation. Inundation or rainy canals irrigate relatively large areas close to the rivers. These operate only in summers during the rainy season when river levels are high due to floods. Location of intakes shifted frequently since rivers often changed course during floods. It leaves the canals high and dry. Inundation canals, besides interruption in supplies, suffer from heavy silt deposits requiring frequent clearances

(Malik, 2005). Non-perennial canals are those canals which operate in the one part of the year. They irrigate only during the summer season whereas perennial canals are permanent canals which receive continuous and permanent supplies from a barrage or reservoir. These canals irrigate the fields throughout the year without any disruption with equitable rate of flow (Civil Engineering Terms, 2013).

Indus Basin has a long history of canals. In the mid-14th century, inundation canals were introduced to enhance the agricultural output. These canals were seasonal and supplied water to the fields in the summers when the Donor Rivers were in flood, so that they were beneficial for Kharif crops. The Rabi crops took advantage of the

75 moisture left in the land from summer flooding. Inundation canals can only irrigate flood plains where the land is sufficiently levelled and slopes downward from the river bank. That is why the main network of the inundation canals was developed in

Sindh and in southern Punjab. A limited number of inundation canals took off from the Upper Indus, Jhelum, Chenab, Ravi and Sutlej Rivers. The bar uplands15 were not served by the inundation canals, as they could not rise up 5 to 7 meter high bluffs separating the flood plains and the bar uplands. The bar uplands were only irrigated and heavily colonized after the introduction of perennial canals to the region (Khan,

2004).

Before the introduction of perennial canals, most of the region depended on catch crops because of scanty and uncertain rainfall. Failure of the rain often led to famines and starvation. Due to the occurrence of frequent famines, hundreds of thousands of people died and millions of animals perished elsewhere in the sub- continent. In the mid-nineteenth century, the British appeared as new rulers and they realised the imperative need for a secure source of food supply. Practice of Irrigation by inundation canals in summer was limited in scope and unreliable. There was need for a dependable source of irrigation and perennial canals were the answer. Due to the flat terrain and doab (interfluves) topography, the Punjab was suitable for construction of large canal networks. A canal taken off at a sufficiently high level upstream of a river could command extensive tracts of land down the doab by gravity flow but there was also a serious constraint. Due to the low water levels in winter, canals could not draw required amount of supply. Solution was traced by throwing a barrier or a weir across the river to raise the water levels. They were dropped in winter to raise the water levels and lifted in summers to pass the flood discharge safely (Malik, 2005: 18).

3.5.2 A Historical Overview of Water Resources Development in the Indus

Basin

Irrigation has been provided in the Indus Basin since pre-historic times before the advent of the British with all its potentialities of continuing improvements and initiating new projects. The situation of the mountains, rivers and the nature of the surface offered a great scope. It was also noticed that almost every ruling authority had done something to expand irrigation facilities in the region. Soils of the Indus plains are fertile. But due to the arid climatic conditions crops cannot be grown without irrigation which has been practiced since time immemorial. Indus Valley civilizations of Mohanjedaro and Harrapa were sustained by irrigation agriculture about 5000 years ago (Khan, 2004). Evidences show that agriculture was the main source of their livelihood and economic prosperity was totally dependent on the waters of the Indus System (Wright, 2010). A well-established irrigation system was practiced to enhance the agricultural output (Kenoyer, 1998: 6). Inundation irrigation was used by those civilizations which was totally dependent on the rise and fall of the waters of Indus system. After the decline of Indus Valley Civilization, later ruling dynasties like Scythians16, Cholas17, Parthians (247 B. C. - 224 A. D.) and Pandyas18 also contributed to develop the Indus Basin. The irrigation infrastructure like dams and dikes were enlarged for the agricultural purposes (Shinde, n.d).

3.5.2.1 Irrigation Development during the Muslim period

Arabs occupied Sindh in 8th century19. They also applied the same techniques to develop the water infrastructure like former dynasties. Keeping in view the demands and needs of the agriculture, the Arabs developed a good canal system

(Fairly, 1993: 175). During the period of Delhi Sultanate, the water development

77 continued to achieve the full benefits of land and agriculture. Due to the expansion of empire, more food was required to feed the growing population and this led to an increase of agricultural activities in the region. The Sultans considered water development as an important factor to make the region prosperous. Due to the hot climatic conditions, the land of the Indus Basin is mostly arid and it could only be irrigated by artificial sources. Thus, during that period, water storages and lakes were constructed to irrigate the plain areas. These reservoirs were also utilised for drinking purpose (Michel, 1967: 49-50).

Sultan Iltumish was the first ruler who built a multi-purpose lake to provide clean water for drinking in the 12th century. Soon after, Western Yamuna Canal was constructed by the Sultan Feroz Shah Tughlaq in the year 1355 A.D. to irrigate land in

Hissar (now Haryana) (Gill, 2005: 7). The Mughals also extended this canal

(Siddiqui, 2006: 260). Zahir-uddin Babar defeated the last ruler of Delhi Sultanate,

Ibrahim Lodhi, in 1526 and laid the foundations of the Mughal dynasty in India

(Fairly, 1993: 206).

The Mughals improved and developed their irrigation system. In 1568, the

Emperor Muhammad Akbar renovated Western Yamuna Canal. The Emperor

Jahangir constructed a perennial canal in the 17th century to provide water to a garden on the western bank of the River Ravi near Lahore. In the reign of Emperor Shah

Jahan, a canal was built to irrigate Shalimar Garden in Lahore from the River Ravi in

1639 under the supervision of Ali Mardan Khan. Later on, the Sikhs extended this canal to Amritsar to fill the tanks at Golden Temple (Fairly, 1993: 207; Khan, 2004).

In the reign of Emperor Aurangzeb Alamgir (1657-1707), the irrigation system was extensively enlarged, as much as the Indus Basin had never seen before.

Its credit goes to Emperor Aurangzeb who took much interest in developing tanks, lakes and canals to promote agriculture in the region. His famous works were the renovation of Western Yamuna Canal, construction of Halsi Canal, Shah Nehr Canal and a number of other non-perennial canals. Many canals were also built by the

Kalhora (1701-1783) and Talpur (1783-1843) dynasties in the Province of Sindh

(Punjab Irrigation Department, 1998).

3.5.2.2 Irrigation Development in British India

The battle of Plassey was fought between Nawab of Bengal, Siraj-ud-Dola, and British East India Company in 1757 and the Nawab was dethroned by the

Company. It is considered the dawn of British rule in Indian sub-continent. Later on, the Company extended its control over Bengal, Bihar and Orissa after the war of

Buxar which was fought in 1765. In 1799, with the death of Tipu Sultan (Ruler of

Masore), most of the South India came under the direct or indirect control of the

Company. After the third Anglo-Maratha war of 1818, the Company took over the sub-continent almost entirely except the provinces of Punjab, Sindh and some princely states. Soon afterward, the Company defeated Sikhs in Anglo-Sikhs war of

1849 and occupied Punjab (Stokes, 1973: 136-160). Eventually, after the fall of

Punjab, except some princely states, the Indian sub-continent came under the direct or indirect control of British East India Company (Michel, 1967: 57).

After the war of independence in 1857, the British Parliament passed the

Government of India Act, 1858. Under that Act, the territories under the control of

Company were transferred to and vested in Crown (Khan H. , 2009). After the direct control of the Crown over the Indian territories in 1858, the British Government

79 initiated several programmes to enhance the agricultural output which was the main source of revenue at that time.

Under the new colonial policy of the British, a number of irrigation projects were launched across the Main Indus and its tributaries. Initially, preference was given to transform large tracts of barren land and unoccupied wastelands into productive land. From 1860 to 1947, the British Government invested a large amount of money in the Indus Basin Irrigation System which made it the largest contiguous irrigation system of the world. It had command area of about 20 million hectares and annual irrigation capacity of about 12 million hectares (Swain, 2002: 66).

From the middle of the 19th century, various irrigation projects were initiated to irrigate high lands between the five rivers. First time the British engineers introduced a new concept of perennial and rotational canals in the Indus Basin.

Construction of weirs and perennial canals in the Punjab began in the second half of the 19th century. No irrigation technology was available. Early engineers had no knowledge and experience of the construction of weirs and perennial canal networks for year round irrigation. Early works faced serious problems. Madhopur weir at head of Bari Doab Canal was damaged year after year. Bari Doab Canal was closed within a couple of days of its first opening because heavy sediment deposits filled first mile of its head reach. Later Sirhind Canal faced a similar problem. Subsequent irrigation works were built based on the research and experience (Bengali, 2005). Punjab

Irrigation Research Institute and later Central Design Office were established to solve the problems of perennial canals. Punjab Irrigation Department played an important role to solve the problems. Punjab canals were designed to operate according to a knife-edge criterion of non-silting and non-scouring. Water velocity in channel was maintained neither too slow to encourage silt deposit nor too fast to cause scour of the

80 bed and erosion of the banks. It required effective sediment control canal head which was achieved through appropriate rules and channel design (Malik, 2005).

Upper Bari Doab canal (UBDC) was the first in the Punjab which was opened in 1859. It was taken off from the Madhopur weir at the Ravi. About 1,000,000 (4000 square kilometre) acres of land was irrigated by it in the pre-partition districts of

Gurdaspur, Amritsar and Lahore. The canal passing through the city of Lahore was its branch (Khan, 2004). According to Palijo (2011: 9-10) this project first time created a dispute over the waters of Indus System between Punjab and Sindh. After it Sirhind

Canal was opened in 1872 from the River Sutlej at Rupar, to protect existing cultivation in about three million acres lying in Punjab and other neighbouring Indian states (Gulhati, 1973: 31). The Lower Sohag and Para canals20 from the Sutlej were completed in 1882 to provide irrigation facilities to virgin lands in the southern

Punjab. Sidhnai Canal from the Sidhnai weir on the River Ravi was opened in 1886 to irrigate the areas in Multan division. These canals brought all settled areas of eastern and central Punjab under the cultivation (Khan, 1995). In Sindh, most of the earlier inundation canals were improved and provided with headworks to secure and extend supplies. Due to these measures, annual irrigation in Sindh increased from 1.5 million acres (6000 sq km) in 1875 to 3.00 million acres (12,000 sq km) in 1900 (Gulhati,

1973). In North Western Frontier Province21, (N.W.F.P., now Khyber Pakhtunkhwa) the Lower Swat Canal was opened in 1885 to irrigate agricultural land in the tribal areas. It took off from Amandara Headworks on the Swat River with discharge of

1800 cusecs. Its commanded area was 1,340,000 acres (Malik, 2005). The Kabul

River Canal was completed in 1892 and Paharpur Canal in 1907. Upper Swat Canal took off from Munda Headworks on the Swat River. It was commissioned in 1914 with discharge of 1,800 cusecs to command an area of 276,000 acres (Khan, 1991:

19). These four canals were irrigating about half million acres of land in the west of the Indus in 1946. Early in the 20th century, Ranbir and Pratab canals were constructed to irrigate about 150,000 acres land in the Jammu province of the

Kashmir state (Gulhati, 1973).

Though all the Punjab canals were built primarily as food security and famine preventive measures yet they proved highly profitable financially too. So the government set upon a programme of irrigation to develop vast tracts of non- proprietary lands and crown wastes (bars) lay barren in southeast and western parts of the Punjab province in the closing decade of 19th century. About 1890, two projects were sanctioned, one for the Chenab Canal (now the Lower Chenab) and other for the

Jhelum Canal (now the Lower Jhelum).

Lower Chenab Canal (LCC) was the pioneer in this great irrigation development drive. It took off from Khanki Headwork on the River Chenab. Opened in 1892 with a discharge of 11500 cusecs (cubic feet per second) it irrigated vast barren tracts in Central Rechna Doab. Peoples from Amritsar, Jullundar and

Hoshiarpur districts of Eastern Punjab were settled in the canal command areas. They helped to develop new lands in districts of Gujranwala and Jhang. New colonies and towns were established like Gojra and Lyallpur (now Faisalabad). The project achieved its initial target of 2.45 million acres of annual irrigation within 20 years of its operation (Malik, 2005).The Lower Jhelum Canal (LJC) was opened in 1901 with discharge of 5,300 cusecs. It takes off from the left bank of the Rasool Headworks on the River Jhelum. It commands 1,500,000 acres including 600,000 acres of Crown waste land in Gujrat and Sargodha districts in Chaj Doab (Khan, 1991: 17).

After the commercial and economic success of the LCC and LJC, attention was turned to crown waste lands then lying south of the Ravi River. This led to the construction of the Triple Canal Project (TCP) in Punjab. The main objective was to irrigate areas of Lower Bari Doab, lying south of the River Ravi. Since almost all of the winter flow of the Ravi was being used by the UBDC and the Sutlej by Sirhind

Canal, the Beas appeared as the most suitable alternative to irrigate this area. A plan was made for the construction of a canal with its headworks at Harike, just below the merging point of the Beas and the Sutlej and submitted to the government for its approval.

The British government in India established Indian Irrigation Commission in

1901 to report on irrigation development. The commission analysed the Harike scheme and strongly opposed it on the following grounds: firstly, the Jhelum had much supplies than was used in areas between the Jhelum and the Chenab; secondly, the irrigation of Lower Bari Doab regarded as the last possibility to use surplus waters of the Jhelum; and finally, the Sutlej water would be needed for the future development and extension of irrigation on the both sides of the river. The Harike scheme was reanalysed and ultimately replaced by the TCP which would transfer surplus waters of the Jhelum to the Lower Bari Doab, by a series of link canals. TCP involved construction of three headworks and three canals. The headworks were at

Mangla, Marala and Balloki on the Rivers Jhelum, Chenab and the Ravi respectively.

The corresponding canals were Upper Jhelum (UJC), Upper Chenab (UCC) and

Lower Bari Doab (LBDC). The project facilitated transfer of surplus waters of Jhelum at Mangla to Ravi at Balloki by inter-river exchange for irrigation of barren wastes in southern Bari Doab. Its construction was started in 1909 and completed in 1917.22

The UCC, which was constructed first, takes off from the Chenab River at Marala at

83 the foot of the Himalayas. After irrigating the upper part of the Rechna Doab, it crosses the River Ravi near Balloki and becomes the LBDC. By the construction of the UCC the LCC was starved so the UJC was constructed to feed the LCC. The UJC has its intake at Mangla. It runs for a considerable distance parallel to the River

Jhelum at the foot of the Salt Range. It irrigates parts of the Chaj Doab and discharges into the Chenab at Khanki to reinforce the LCC. Thus the canal systems of the

Jhelum, Chenab and Ravi have been interlinked (Malik, 2005).

TCP hailed as a great feat of irrigation engineering. It virtually used surplus

Jhelum River water to irrigate lands 500 miles away across the three doabs in the

Punjab. It has been a highly successful undertaking, technically as well as economically since its inception in 1917.

Immediately after the World War I, three important projects were put forward for the irrigation development in the different areas of the Indus Basin. These included the Sutlej Valley Project; the Sukkur Barrage and Bhakra Dam. The Sutlej

Valley Project (SVP) was another large undertaking in the 1920s. It consisted of three barrages at Ferozpur, Sulemanki and Islam and nine canals taking off the Sutlej proper and one headworks at Punjnad, (the merging point of the River Sutlej and the

Chenab), with two off taking canals. It commanded lands in north-eastern Punjab and princely states of Bikaner and Bahawalpur.

Ferozpur Barrage is located on the Sutlej River near Ferozpur town below its confluence with the Beas River at Harike. Three canals took off from it. First is

Dipalpur Canal which is non-perennial canal and opened in 1928. It took off from the right bank of the Barrage with discharge of 6100 cusecs. It commands 983,000 acres west of the Sutlej River in Sahiwal district. Second was Eastern Canal which took off

84 from the left flank of the Barrage. Its discharge was 3,320 cusecs. It commanded an area of 430,000 acres in Ferozpur district. It included 67,000 acres of land in the then

Bahawalpur state through the Bahawalpur State Distributary. Third was Bikaner

(Gang) Canal. It was the second canal to take off from the right bank of the Ferozpur

Headworks. Its discharge was 2144 cusecs. It commanded an area of 651,000 acres in

Bikaner state (now Rajasthan) (Khan, 2004).

Pakpatan Canal, Eastern Sadiqia Canal and Fordwah Canal took off from the

Sulemanki Headworks. Pakpatan Canal took off from the right bank. It was opened in

1927 with a discharge of 6600 cusecs. It commands an area of 1,261,000 acres in

Sahiwal and Multan districts. Eastern Sadiqia Canal took off from the left bank of the

Headworks. It was opened in 1926 with discharge of 4900 cusecs. It commands an area of 934,000 acres. Fordwah Canal also took off from the left bank of the Barrage with discharge of 3400 cusecs. It was opened in 1927. It commanded an area of

425,000 acres. Both Sadiqia and Fordwah Canals irrigated lands in Bahawalpur State

(Malik, 2005).

Three canals take off from the Islam Headworks. First was Mailsi Canal which was opened in 1928 with discharge of 4900 cusecs from the right bank. It was non- perennial canal. It commanded an area of 688,000 acres in Multan division. Second was Bhawal Canal which took off from the left bank of the Islam Barrage. It was opened in 1927 with discharge of 5400 cusecs. It commands an area of 648,000 acres in Bahawalpur State. Third was Qaim Canal. It also took off from the left bank in

1927 with a discharge of 5400 cusecs. Qaim Canal also irrigates the lands of

Bahawalpur State (Malik, 2005).

Punjnad Headworks was built on the River Punjnad below the confluence of

Chenab and the Sutlej Rivers. Two canals (Punjnad and Abbasia) took off from it.

Punjnad Canal took off from the left bank with discharge of 9000 cusecs. It commands an area of 1339,000 acres and Abbasia Canal took off from the right bank.

Both canals were opened in 1929 (Malik, 2005).

As the Punjab was busy in the construction of SVP in 1932, at the same time

Sindh completed a barrage across the Indus at Sukkur. Development of perennial canal irrigation in Sindh followed more or less the same technology as was evolved in the Punjab. The terrain topography and river morphology in Sindh were different from doab configuration in the Punjab. Since the Indus runs higher than the adjoining lands, canals can irrigate on both sides of the river like from Sukkar Barrage. It feeds as many as seven canals; four from the left23 and three from the right bank24 with aggregate discharge of 47,700 cusecs. Area under their command is 7,500,000 acres which is the largest anywhere in the world. It was completed in 1932 (Malik, 2005).

The remaining Bhakra Dam project which was proposed to irrigate lands of south eastern Punjab and adjoining state of Bikaner from storage of 2.76 million acre feet (MAF) proved most controversial and was shelved till the contradictory claims of the Punjab and Sindh could be resolved. Despite the conflicts over the use of waters of the River Sutlej, Punjab opened Thal Canal in 1947 and Sindh prepared project of

Kotri Barrage on the Indus River to improve withdrawal of its inundation canals in lower Sindh (Gulhati, 1973: 39)

Trimmu Barrage with two canals was the largest undertaking after SVP. It is located on the Chenab River below the confluence with the Jhelum. It serves two canals (Haveli Canal and Rangpur Canal), both opened in 1939.

Fig. 3.7 Canals of the Indus Basin up to 1960

Source: (Michel, 1967)

Haveli Canal took off from the left bank with discharge of 5,200 cusecs to deliver surplus water to River Ravi above the Sidhnai Headworks to feed Sidhnai

Canal. The canal irrigates some area in its way to Sidhnai Headworks. It commands

1,011.000 acres mostly in Multan division. It was the first brick lined canal in the

Punjab. Rangpur Canal took off from the right bank of the Barrage. It is non perennial canal. Its discharge is 2700 cusecs and commands 347,000 acres in Jhang district

(Malik, 2005).

Western Jumna Canal took off from the right bank of the Tajewala Headworks on the River Jumna with 5,500 cusecs discharge. The canal was primarily built as a food security measures in eastern districts of Punjab. Originally it was a small canal built by Emperor Feroz Shah Tughlak in the 14th century. It brought water to Delhi.

Later it was renovated by Emperor Akbar in 1568 (Malik, 2005).

Jinnah (Kalabagh) Barrage was another major project that was built in 1947 on the Indus River as component of Thal Irrigation Project for extension of irrigation over 1.47 million acres of Thal desert. It was the last irrigation project prior to independence in the Punjab. On completion of the Barrage further work was stopped because of the Second World War (Khan, 1995).

3.5.3 Water Conflicts and Efforts of Resolution

Three basic principles of international law must be kept in mind before analysing the various water disputes among the various provinces or states of the united India. The first principle is derived from the British Common Law which says that, ‘ A riparian owner or occupier has an unrestricted right to take and use the water of a stream for ordinary domestic purposes such as drinking, washing and for the want of its cattle’. The second principle is that, ‘The irrigation projects that were built first have more right to draw from the river than the ones completed later’. This right is known as the historic right’ of riparian. The third principle emanates from the

Government of India Act 1935 Section 131 (6), which recognizes the principle that no

88 province or state can be given an entirely free hand in respect of a common source of water such as an inter-province/state river (Bengali, 2005). This principle is based on the theory of limited territorial sovereignty and integrity which advocates the right of each riparian nation to utilise an international watercourse passing through its boundaries in such a way that its uses do not harm the interests of other riparian states. In essence, this theory guarantees rights of each and every riparian nation on a common watercourse. The principle of equitable and reasonable utilisation is the essence of this doctrine.

The first principle has never been disputed and the second regarding historic rights, is often violated. For instance, India refused to release the historical water right of about 1.7 million acre feet through Central Bari Doab channels, Dipalpur Canal

System and Bahawalpur State Distributary from Madhopur and Ferozpur headworks on 1st of April 1948. The third principle, that of ‘equitable apportionment with the consent of riparian states’ is the most difficult to establish because the goal of equitable distribution cannot be achieved without the consent of the all riparian units.

Water distribution issues can lead to active conflicts. Where water is scarce, it becomes a divisive factor in local economies and politics. And where society is divided by ethnicity, caste and class, such divisiveness can become explosive.

Disputes over the sharing of water s of Indus River System did not exist as long as the waters flowed as ordained by nature. However the construction of the system of barrages and canals for the diversion and storage of river water from 1859 onwards rendered water distribution a function of policy decisions. Not unexpectedly, these decisions became contentious on account of the fact that the benefits and costs of each decision are distributed differentially (Bengali, 2005: 161).

The dispute had its origins in the earlier part of the 20th century when the

Sutlej Valley Project was being planned in Punjab. Millions of acres of land in the

IRB were irrigated from the spills of the rivers and by inundation canals. These canals diverted supplies directly from the rivers during the flood periods without the diversion dams. Due to the recurrence of famines in Punjab, the British Authorities started to expand irrigation facilities through the diversion dams across the rivers in the middle of the 19th century. First of all, the area between the tributaries was developed because being smaller rivers; they were easier to control (Malik, 2005).

The UBDC on the Ravi was the first to be opened in 1859. It was followed by

Sirhind Canal on the Sutlej in 1882, the LCC in 1892, and LJC in 1901.The

Bahawalpur and the Upper Swat canals were opened in 1908 and 1914 respectively.

The TCP, consisting of the Upper Jhelum, the Upper Chenab, and the Lower Bari doab canals was completed in 1915. In the post World War-1 period, plans to harness the flow of the main Indus River were materialised with the construction of the

Sukkar Barrage Project, the largest single irrigation project in the world, in 1932. The

Sutlej Valley Project comprising 11 canals and four Headworks at Ferozpur,

Sullemanki, Islam, and Punjnad was completed in 1932. The Haveli Canal Project with headworks at Trimmu on the Chenab river came up in 1939 and the Kalabagh in

1947 (Malik, 2005: 71).

Under the guidance of the British engineers, irrigation was greatly extended through the construction of headworks on the rivers and through canals. Flourishing colonies were established. Cultivation of cotton, wheat, rice and sugarcane was expanded. New towns sprang into existence. Orchards and well-tended agricultural farms covered the countryside. More land is irrigated from the Indus River than from any other river system in the world. One dam planned before the partition was Bhakra

Dam on the River Sutlej in the East Punjab. Before it was sanctioned, the downstream province of Sindh complained that operation of Bhakra Dam would adversely affect the functioning of its inundation canals (Ali, 1973: 317).

Before the SVP was sanctioned in 1921, a concern was voiced by various units on the adequacy of available supplies. Bahawalpur State protested against any supplies being given to Bikaner State, as provided in the project, on the ground that the supplies were insufficient even for the needs of the riparian areas of Punjab and

Bahawalpur State. At the same time, Punjab protested against the Sukkar Canal

Project, which was also before the Government for sanction, as it felt that there would be inadequacy for both Sukkar and Thal barrages. Bombay province, which than included Sindh, on its part protested against the Sutlej Valley Project because it feared that withdrawals for the project would leave inadequate supplies for the Sukkar barrage canals (Gulhati, 1973: 38). Almost from the start of the Sutlej Valley Project, it became evident that supplies for its canals were inadequate. These canals had been planned on the basis of average supplies occurring over a certain period of years.

Without ample storage, average supplies were not dependable. The unusable peak flows distorted the picture. The result was that the canals, after construction, suffered overall shortages in half the year. In most years, they suffered extreme shortages during early Kharif when supplies were most needed, a situation which proved intolerable (Khan, 1991: 18).

After the World War I questions arose about water sharing because of increasing withdrawals of river supplies as several projects were proposed in different parts of the Indus Plains. It called for the apportionment of the rivers waters among several riparian by the Government. Six significant attempts have been made by the

91 government before the independence to reach an agreement on water sharing in the

Indus River Basin.

3.5.3.1 Sutlej Valley Tripartite Agreement (1920)

It was the first agreement in the Punjab for sharing of river waters. It was signed in 1920 by Government of Punjab and Princely states of Bahawalpur and

Bikaner to share waters of Sutlej and Beas rivers. It opened the way for the sanction of the Sutlej Valley Project (SVP) and Sukkar Project in Sindh (Malik, 2005).

3.5.3.2 Indus Discharge Committee (1921)

Bombay government (Sindh was part of Bombay presidency till 1935) objected to Punjab’s proposals for new projects impacting scope of irrigation development in Sindh. Princely states of Bahawalpur and Bikaner also staked their claims for irrigation supplies. Respective claims of the rival governments Vis: Punjab and Bombay were referred to the Secretary of State for India. He sanctioned construction of SVP and Sukkar Barrage with seven canals of aggregate capacity of

47,700 cusecs. Decision about other projects was to be taken after more reliable river flow data was available.

Government of India appointed “Indus Discharge Committee” in 1921. A system of daily observation of river and canal discharges at different sites on the

Indus River System and canals was initiated. Arrangements were also made between

Punjab and Sindh to cooperate in discharge observation and in methods of keeping their record. Sindh also detailed resident engineers in the Punjab to monitor river discharges and canal withdrawals. The Committee in its report recommended implementation of Haveli Canal Project. But it pointed out that future projects in the

Punjab should be considered carefully with respect to possible impact on Sindh water rights. It also recommended study of Bhakra Dam on the Sutlej for storage of flood waters and reduction of flood flows. To study this matter a two member Committee was formed. Its members were Mr. Nicholson and Mr. Trench. It reported in 1930 that there should be no objection to construction of Bhakra Dam (Malik, 2005).

3.5.3.3 SVP Inquiry Committee (1932)

Operation of SVP canals revealed that there was shortage of supplies because actual river flows fell short of requirements especially in early Kharif period. A committee was appointed in 1932 to look into the problem of shortages. The committee recommended exclusion of some areas in Bahawalpur, construction of new feeder canals and adjustment in the command of certain canals (Malik, 2005).

3.5.3.4 The Anderson Committee (1935)

The distribution of waters of the Indus River System has been a source of controversy among various provinces and Indian states, especially between Sindh and

Punjab, at least since 1919. All eleven SVP canals with four barrages and Sukkar

Barrage Project were commissioned. Bahawalpur and Khairpur States sought additional supplies. Punjab also asked for more water for Haveli Project. In 1935, some of the matters in controversy were referred by the Government of India to an eight member committee of experts, six of whom were nominated by the interested units (namely, Bombay including Sindh, Punjab, NWFP, Bahawalpur, Khairpur and

Bikaner) and the remaining two, including the Chairman, were independent members nominated by the Government of India (Gulhati, 1973). This committee was named

Anderson Committee, after its Chairman’s name. The committee submitted a unanimous report on 16 September 1935. The Government of India then consulted the

93 various units concerned and passed final orders on 30 March 1937. It increased irrigation supplies for Haveli and Thal Projects (Bengali, 2005: 162). However, Sindh

(which was under the Bombay presidency when the Anderson Committee report was released, but had attained the status of province in 1935) showed its apprehension regarding the effects of certain completed and contemplated irrigation projects in

Punjab and formally lodged a complaint on 7 June 1941 to the Governor General of

India. The complaint related to the following projects:

1. The Haveli Project___ in operation;

2. The Thal Project___ under construction;

3. The Bhakra Dam Project___ in contemplation;

4. Twenty-four storage reservoirs with an assumed capacity of 500,000

acre-feet each, on the affluence of Indus, Jhelum, Chenab, Ravi, Beas

and Sutlej rivers, and one of them, the Wular Lake Scheme, on the

Jhelum itself___ in contemplation;

5. Feeders to transfer water from the Ravi to the Beas and from the

Chenab to the Beas with a total assumed withdrawals of 23,000 cusecs

at its highest___ in contemplation (Bengali, 2005).

In response, the Governor General appointed the Indus Commission to look into the complaint of Sindh and to report on the matters pertaining to the complaint.

3.5.3.5 Rau Commission (Indus Commission)

After the Government of India Act 1935 came into force on April 1, 1937, the development of river waters became a provincial subject. Henceforth each province was free to undertake any work for development of river waters passing through its territory as considered expedient. The Governor General could intervene only on

94 receipt of complaint by one province against the other. In response of the complaint submitted by the Sindh, first time in October 1939 and again in its final form on 7

June 1941, Governor General of India appointed the Indus commission which is popularly known as “Rau Commission” after the name of its Chairman Justice B. N.

Rau. The Commission had two chief engineers namely P. B. Hickey and E. H. Chave as the members (Michel, 1967: 129; Gulhati, 1973: 38).

Referring the British Common Law, American Supreme Court decisions, decisions of the Permanent Court of International Justice, and common practice in various countries, the Rau Commission laid down the following general principles for the distribution of the water of Inter-provincial rivers (Bengali, 2005).

1. The most satisfactory settlement of disputes of this kind is by

agreement, the parties adopting the same technical solution of each

problem, as if they were a single community undivided by political or

administrative frontiers.

2. If once there is such an agreement that in itself furnishes the ‘law’

governing the right of the several parties until a new agreement is

concluded.

3. If there is no such agreement, the rights of the several provinces and

states must be determined by applying the rules of ‘equitable’

apportionment, each unit getting a fair share of the common river.

4. In the general interest of the entire community inhabiting dry arid

territories, priority may usually have to be given to an earlier irrigation

project over a later one.

5. For purpose of priority, the date of a project is not the date when

survey is first commenced, but the date when the project reaches

finality and there is fixed and definite purpose to take it up and carry it

through.

6. As between projects of different kinds for the use of water, a suitable

order of precedence might be (a) use for domestic and sanitary

purposes (b) use for navigation, and (c) use for power and irrigation

(Bengali, 2005).

Rau Commission established priority of water allocation for Paharpur Canal and also confirmed allocation for the Thal and the Sukkar schemes as recommended by the Anderson Committee. The commission submitted its report in July 1942. The

Commission did find that upstream withdrawals would adversely affect operation of inundation canals in Sindh especially during September. The best way to counteract this effect was to construct barrages at Guddu and Hajipur. (Hajipur Barrage was superseded by Kotri Barrage) (Michel,1967:132). The Commission also recommended that “compensation should be paid to Sindh from the Punjab province for damages likely to result from upstream withdrawals.” It was also laid down that the proposed Dam at Bhakra, on completion, must be so operated as not to cause material damage to the canals of the downstream province of Sindh. Its findings and recommendations were neither accepted by Punjab nor by Sindh (Malik, 2005: 297;

Gulhati, 1973: 39).

3.5.3.6 Draft Sindh-Punjab Agreement (1945)

The Rau Commission placed an embargo on undertaking Bhakra Dam’s construction before 1st October, 1945, and suggested that, in the meantime, the representatives of Punjab and Sindh should sort out on a bilateral basis the issues of water sharing and related matters. At this stage the negotiations were opened between

96 the two Chief Engineers of Sindh and Punjab to find a solution and reach an agreement. After prolonged negotiations between Sindh and Punjab a draft agreement was drawn on 28th September, 1945. It was subject to settlement of the financial phase of the dispute- with respect to sharing of waters of Indus and Punjab’s rivers. The draft agreement involved, construction of a barrage on the Indus at Guddu and link canals in Punjab with capacity limited to 19,300 cusecs from the Chenab and Ravi

Rivers to the Sutlej for improving supplies for SVP canals.

But the agreement could not be finalized. Ultimately it was decided to refer the matter to His majesty’s Government in England. Early in 1947, Government of

India referred the case to the Secretary of State for India for a decision. The matter was still pending till the Indian Independence Act of July 1947 was passed which created two independent states of Pakistan and Bharat on 15 of August 1947. Thus, due to the partition and its political and geographical effects, the water dispute remained unresolved. (Khan, 1991; Malik, 2005).

3.5.4 The Issues related to the Water Conflicts

After a brief review of the history of water disputes in the Indus Basin, following issues have been traced which created tension among the provinces during the British Rule:

 There was insufficient storage capacity along the Indus basin from

1920 to 1945, due to which a large amount of water could not be

utilised and flowed to the Arabian Sea. This lack of storage capacity

increased tension among the upper riparian and lower riparian

provinces/states, since sufficient water was not available to meet the

agricultural requirement throughout the year. This issue could be

resolved through the construction of reservoirs;

 The existing canal system was not sufficient to meet the demands of

the increasing population in the Indus Basin. As the new lands were

being converted into agricultural lands which also increased the

chances of conflicts among the provinces;

 Revenue generation from the agricultural lands was another issue of

conflicts. Provincial governments wanted to retain generated revenue

because it was a main source of their economies. They wanted to

convert more barren lands into agricultural lands and to develop water

resources to irrigate those lands without taking into account effects and

injuries on other provinces, which resultantly created conflicts and

hostilities;

 Although, to achieve maximum agricultural output, the water from the

canals was playing a significant role but the complex structure of canal

system in the basin and demand of equal apportionment made water a

political issue among the provinces.

3.3.5 Conclusion

The Indus River Basin is one of the most important basins of the South Asia.

The Indus River system comprises of the Main Indus River with five major eastern tributaries, the Jhelum, the Chenab, the Ravi, the Sutlej and the Beas and three western tributaries, the Kabul, the Kurram and the Swat. The Indus River Basin covers an area of about 365,000 square miles and it spreads over the territories of

China, India, Pakistan and Afghanistan. About 75 percent of basin is located in

Pakistan and Indian held state of Jammu and Kashmir, 10 percent in China, 8 percent in Afghanistan and 7 percent in India. The Indus River Basin is divided into two physiographic regions; the Western Highlands and the Indus Plains. The Western

Highlands cover the Northern mountain ranges (the Karakorum, the Himalayas and

Hindukush), Safedkoh and Waziristan Hills, Sulaiman and Kirthar Mountains, Potwar plateau and Salt Range. The Indus Plains spread over the Peshawar Valley, Punjab

Plains, Bahawalpur Plains, Sindh Plains with its adjoining Karachi and Kachi Plains and Suleiman Piedmont. Although, Indus Basin receives widespread rainfall in summers yet total annual rainfall places it in arid and semi-arid climatic zones. The rainfall varies from region to region and year to year. Due to this variation, the river flows also fluctuate heavily. Resultantly, the Indus Basin heavily depends on surface and groundwater for about 80 percent of its agriculture. Various forms of irrigation, such as wells, sailab (Flood), inundation canals and later on perennial canals, have been practiced in the Basin since time immemorial.

After the decline of Indus Valley civilization, later dynasties like Scythians,

Cholas, Parthians and Pandyas contributed well to develop the Indus Basin. Later on the Arabs captured some parts of the Basin in the 8th century and developed a good canal system to fulfil the requirements of agriculture. During the period of Delhi

Sultanate and Mughals, irrigation infrastructure was enhanced and improved.

In the mid-nineteenth century, the British appeared as new rulers. Due to occurrence of frequent famines, they realized the imperative need of secure source of food supply and various irrigation projects were initiated to irrigate highlands between the rivers of the Punjab. First time in the history of irrigation development in the Indus Basin, the British engineers introduced a new concept of perennial canals.

Under the supervision of the British engineers, the irrigation was greatly extended through the construction of headworks on the rivers and through canals.

Dispute over the water sharing started in the early part of the 20th century when the Sutlej Valley Project was being planned in Punjab. After the World War I, questions arose about water apportionment because of increasing withdrawals of river supplies. It called for the apportionment of the river waters among several riparian by the government. Six significant efforts had been made by the government before the partition of India in 1947 to reach an agreement which includes the Sutlej Valley

Tripartite Agreement (1920), Indus Discharge Committee (1921), SVP Inquiry

Committee (1932), The Anderson Committee (1935), Rau Commission and Sindh-

Punjab Draft Agreement (1945). Unfortunately, all those efforts could not produce any permanent solution.

End Notes:

1 - Mithankot is a village in Southern Punjab, near the merging point of the River Indus and the River Punjnad. It is also known as birth place of famous Sraiki folk poet Khawja Ghulam Farid. 2 - The Doabs are regions that lie between the two rivers. The word comes from do – meaning two and aab, meaning water. As per custom, the names of the doabs have been derived from the names of the two concerned rivers. With six major rivers, the Punjab has five doabs. (Michel, 1967) 3 - Sind Sagar Doab (also known as Thal Desert) spreads over an area of 3.2 million hectares and lies between the River Indus and the Jhelum, south of the Salt Range. About 80 percent of the area is an undulating sand plain with some sand-dunes. There are also narrow belts of level land (locally known as Patti) here and there between the sand hills. 4 - The Chaj Doab lies between the River Jhelum and Chenab with an area of about 1.3 million hectares. It has as its central part the Kirana bar, above which rise some low bedrock hills known as the Kirana Hills. These are composed of old rocks similar to those of the Aravalli Hills in India. Narrow flood plains along the River Chenab and the River Jhelum form 25 percent of the area. 5 - Rechna Doab is located between the River Chenab and the Ravi, with an area of about 2.8 million hectares. It differs from chaj and Bari Doabs as its northern and central parts are devoid of scalloped interfluves. This occurs only in the south in the Sandal bar. The bedrock hills near Chiniot, Sangla and Shah Kot in central Rechna Doab are similar to those of Chaj Doab. 6 - Bari Doab covers an area of about 2.9 million hectares. It has a large area of active flood plain and scalloped interfluves. The interfluves between the River Ravi and old course of the River Beas is known as Ganji Bar, whereas the high land between the old course of the River Beas and the River Sutlej is called Nili Bar. 7 - Humid areas are defined as those areas which receive sufficient rainfall. 8 - It is a period of geological time from about 245 to 65 million years ago. 9 - It should be noted that different sources provide different estimates of the runoff of the Indus River System.

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10 - The Aryan invaders in the Indus Valley about 1500 BC or earlier, called the mighty Indus as Sindhu (the Sanskrit word for river) and the land as Sapta-Sindhu, the land of seven rivers. Around the 500 BC, the great king of Persia, Darius occupied the region and the Persian pronounced Sanskrit word Sindhu as ‘Hindu, and named the river Hindu Darya and called the land of Indus as Hapta-Hindu. About two centuries later, the Greeks captured the area under the command of Alexander the Great in 326 BC and they pronounced the Persian word ‘Hindu’ as ‘Indus’ and named the land of Indus ‘India’ most of which now forms the territory of Pakistan (Naqvi, 2013: 3). 11 - The 80 km long Siachen Glacier is the longest glacier in the Karakorum and the second largest in the non-polar world. It lies south of the watershed that separates Central Asia from the South Asia Subcontinent. It occupies an area of 2,700 sq km. 12 - Three great rivers of Indian Sub-Continent (The Indus, The Sutlej and the Brahmaputra) are fed by the lake Mansrovar which is located in the mountains of Tibet (China) at the elevation of 15,200 feet from the mean sea level. 13 - Niranjan D. Gulhati provided different figure that is 2.17 million acres. 14 - The land which is permanently irrigated by the floods every year along the banks of the rivers. 15 Some parts of the interfluves of Upper Indus Plains are occupied by alluvial terraces. These terraces are locally called bars and interfluves doabs. (Khan, 1991: 28) 16 - The term ‘Scythians’ is used for the people who migrated into central, northern and Western South Asia from the middle of the 2nd century BC to 4th century AD. The first Scythian king in South Asia was Mause (1st century BC) who established Scythian power in Gandhara (Pakistan and Afghanistan) and gradually extended his supremacy over North_western India. 17 - The Chola dynasty was a Tamil dynasty that primarily in Sothern India until the 13th century. It was originated in the Valley of Kaveri River. Karikala Chola was the most famous among the early chola kings, while Rajaraja Chola, Rajendra Chola and Koluthunga Chola I were famous emperors of the medieval Cholas 18 - The Pandyan dynasty ruled several parts the Southern India until 15th century C.E. Their main Capital was Korkai, from where they ruled their country Pandya Nadu. 19 - Muhammad bin Qasim occupied Sindh in 712 A.D. by defeating Raja Dahir in the reign of Waleed bin Abdul Malik (Ummaid Caliph). 20 - Later both canals were merged into the Dipalpur Canal of the Sutlej Valley Project. 21 - Under the 18th Amendment in the Constitution of Islamic Republic of Pakistan, the name of the province of N. W. F. P was altered by the Khyber Pukhtunkha in 2010. 22 - Niranjan D. Gulhati gave 1915 as its completion year (Gulhati, 1973: 35) 23 - The Eastern Nara Canal, Rohri Canal including Khairpur Feeders East and West. 24 - The North-western Canal, Dadu Canal and Rice Canal.

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Chapter 4

Partition of Punjab and Its Impact on Water Management

4.1 Introduction

Partition of the Provinces of Punjab and Bengal was not part of the original plan for partition of India. Why these two provinces were partitioned and rests of the provinces were transferred as a whole to the dominions of Pakistan and India? To answer the question, one has to explore in the first instance the reasons of the division of India itself.

The Indian sub-continent was the home of diverse religious, cultural and ethnic communities including Hindus and Muslims, the two major groups that had been living peacefully for centuries. In 1857, all communities got united and fought against the forces of British East India Company for the independence of their homeland from the alien rule (Qureshi, 1965). Immediately after the War of

Independence (or mutiny of 1857 as British historians name it), the British Parliament passed the Government of India Act, 1858 which empowered the Crown to take control of India from the Company (Khan, 2009). In spite of the fact that both prominent groups (the Hindus and Muslims) fought together against the British Rule, the Urdu Hindi controversy1 started in Banaras which sowed the seeds of rivalry between the two communities in 1867 (Qureshi, 1965). In that situation, Sir Syed

Ahmad Khan2 was the first man who recognized the Hindu mentality and used the term “nation” for the Indian Muslims (Qadri, 1983).

In 1885, the Indian National Congress (INC) was established by Lord A. O.

Hume with the blessings of Lord Dufferin, the then Governor General of India3

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(Qureshi, 1965: 20). Understanding the objectives of the INC, Sir Syed advised the

Muslims not to join it and a large majority followed his advice. Contemporary

Muslim press4 in India and Muslim organizations5 also voiced against the Congress

(Qadri, 1983: 12-13). To counteract the propaganda of the Congress, Sir Syed also set up the Muhammadan Educational Conference, United Indian Patriotic Association, the Muhammadan Defence Association of Upper India and the Muhammadan Anglo-

Oriental Defence Association of Upper India in 1886, 1888 and 1893 respectively

(Qureshi, 1965: 22).

Sir Syed’s illustration about the Hindu mindset proved correct when the INC bitterly opposed the partition of Bengal. On 16th of October 1905, the province of

Bengal was partitioned on the recommendation of Lord Curzon, the then Governor

General of India, into East Bengal and West Bengal. The scheme of partition was sanctioned by the Secretary of State for India St. John Brodrick (Qadri, 1983). The

Government proclaimed that it was done totally on administrative grounds but the

Hindus blamed the Governor General, as Qureshi (1965: 23) describes, that he had intentionally tried to break down the unity of the Indian people, particularly the

Hindus and the Muslims; he had supported the Muslims by providing them a new province with absolute Muslim majority; he had tried to cripple the “nationalist” and

“patriotic” movement of the people of India; he had used the official policy of divide and rule. Ultimately Hindus of Bengal started agitation against the partition and the

Indian National Congress, which was claiment of national party for Hindus, Muslims as well as other minorities, joined hands with the protestors. On the other side, the

Muslims welcomed and expressed their gratitude to the government.

The most deliberate outcome of the agitation started by the Hindus against the partition of Bengal was rapid increase in communal riots. The Swadeshi movement 103

resulted in communal clashes, hatred and bloodshed (Prabhu, 2012). The net result of the Hindu agitation was that the Muslims alienated themselves from the Congress because the driving force behind the Swadeshi movement was religious politics, as

Jawaharlal Nehru accepted this reality that the Swadeshi movementt of that time was a manifestation of a religious nationalism (Brecher, 1959).

At that stage, Muslims were totally convinced that expectation of any justice and fair play from the Hindu majority would be wrong. A deputation of 35 Muslim leaders6, representatives of the all parts of Indian Subcontinent, met Viceroy Lord

Minto at Shimla on October 1, 1906 under the leadership of Sir Agha Khan. The

Shimla Deputation presented two fundamental demands; the right of saperate electorate7, and weightage8 in all elected bodies. The Viceroy accepted both demands

(Qadri, 1983).

The attitude of Congress towards the partition of Bengal and success of the

Shimla Deputation were the immidiate causes which convinced Muslims of India that they must have their own political plateform which could secure their interests.

Consequently, the Muslim leaders met in Dacca and All India Muslim League

(AIML) was formed on December 30, 1906.9

Under the Government of India Act 1858, the British Crown took direct control of the certain provinces and remaining princely states, ruled by the native princes, were controlled through British Advisors as representatives of the Indian

Government. In the first quarter of the 20th century, the political parties in India became stronger and the will of the people to determine their own fate also gained momentum. In response, the British applied the paralell policies of ‘tightening and relaxing’ their control over the power structure. The examples of the tighter control

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can be traced in various incidents, ranging from Jallianwala Bagh ‘massacre’ of

191910 to the unlimited prisoners, arrested during the various political and civil movements that had been initiated by the political parties to free their country.

The process of relaxation started with the introduction of the Minto-Morley

Reforms of 1909. These Reforms enlarged the number of elected members in the provincial legislatures and introduced the right of separate electorate for the Muslims of India. Continuing the policy of relaxation, the Montagu-Chelmsford reforms were introduced in 1919 and the last act of relaxation regarding the legislative functioning of British India before partition of India was the Government of India Act, 1935.

Under this Act, India was declared federation with autonomous units (Khan, 2009;

Thakur, 1995: 69). In essence, the Government of India Act, 1935 led to the end of the colonial rule and also led the way to the division of India into two dominions as

India and Pakistan.

In all above mentioned reforms, the Muslims of India were given the right of separate electorate and they were recognised as a separate nation. On the other side

INC was never willing to accept Muslims of India as a separate nation and it always opposed their right of separate electorate. Keeping in view the Congress attitude, the

Muslims realised that they would become a permanent minority in any future democratic system and they would never be able to protect their basic rights. Thus,

AIML passed its historic Pakistan Resolution on 23rd of March 1940 at Minto Park,

Lahore in its 27th annual session. The Resolution rejected the idea of united India and demanded an independent Muslim state consisting of Muslim majority provinces of the Punjab, N. W. F. P. Sindh and Baluchistan in northwest and Assam and Bengal in northeast of India. Ultimately, Muslims’ demand was accepted and India was partitioned into two independent states of India and Pakistan on August 15, 1947. 105

The people of Indian Subcontinent got freedom from the United Kingdom in a comparatively amicable way (Jalal, 1995: 9; Gulhati, 1973: 52) but some political decisions reshaped the course of history. The partition became very painful.

Particularly, the partition of Punjab left inerasable prints on the minds of the people of both countries. Due to the hurried departure of the British rulers and controversial partition of the provinces of Punjab and Bengal, many issues of complex nature emerged for both India and Pakistan (Cheema, 2000).

4.2 The Punjab Partition

People of India had struggled for a long time to get freedom from the alien rule of the British. At the end of the Second World War, British government ultimately decided to leave India. But it was not a country in which they could hand over power to its natives and quit. It was a land of diverse religious communities.

Hindus were in dominant majority and Muslims were the second largest nationality.

They were worried about the Hindu majority in any future democratic system. They demanded that before the British left, India should be divided into two sovereign states. The regions in which Muslims were in majority should form a separate independent state named Pakistan. Hindus bitterly opposed the division of India.

Mahatma Gandhi, the venerated leader and patron of the Indian National Congress deemed it as bisection of “gao mata” (mother cow), held holy by the Hindus (Malik,

2005, p. 52). Ultimately, on February 20, 1947, the British government announced that transfer of power will be completed by June 1948 (Qureshi, 1965).

In their opposition to Pakistan, Hindus manoeuvred support of Sikhs who were five million concentrated only in the Punjab and demanded partition of the Punjab. A

Hindu-Sikh nexus was formed against Pakistan. Early in March 1947, Sikh leader

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Master Tara Singh11 standing side by side with Congress leader Lala Bhim Sen

Sachar on the steps of the Punjab assembly building in Lahore, brandished his naked

Kirpan and proclaimed, “Sikhs were ready and that the might of sword alone shall rule” (Ahmad, 2014: xxiii; Malik, 2005: 53).

In the start of June 1947, the Sikh leadership held a meeting at Nedou’s Hotel in Lahore to decide Sikh strategy in case partition of India was decided. Master Tara

Singh stated in his speech “Oh Sikhs, be ready for self-destruction like Nazis and

Japanese….our motherland is calling for blood” (Collins & Lapierre, 1997).

Tara Singh’s statements created a situation of tension and communal disturbances started in all over the Punjab. Indian National Congress fully supported the agitation of Sikhs and demanded partition of the Punjab. Muslim stood firm in their demand for a separate homeland defying all forces of opposition. Indian

National Congress and British accepted the reality of Pakistan ultimately. It shattered

Hindu dream of Akhand Bharat (United India). At that time, Hindus tried to cripple the emerging State of Pakistan in whatever way possible. As Collins & Lapierre

(1997: 126) wrote “It was over her share of the goods of the old Indian army, however, that Pakistan encountered Indian bad faith …a deliberate effort to jeopardize her survival”. For instance, under the partition agreement, Pakistan was allotted seventeen thousands tons of army stores but ultimately it got only 6000. To carry her arms and ordinance, 300 special trains had been deputed to Pakistan but only three reached at their destination. When Pakistani officials opened them, they found five thousands pairs of (over size) shoes, a shipment of nurses’ smocks, 5000 non- functional rifles and a number of wooden boxes full of prophylactics and bricks

(Collins & Lapierre, 1997: 145).

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Elaborating their point they further write, “This trickery left bitter memories in

Pakistan and a deep seated conviction among many that their Indian neighbours were trying to strangle them in their cradle”. Pakistanis were not alone in that strong belief.

Field Marshal Sir Claude Auchinleck, (Commander-in-Chief of the armed forces in

India), who was responsible for the distribution of the armies’ goods, informed the

British Prime Minister that the present Indian Government was determined to prevent

Pakistan receiving her just share, or indeed anything of the large stocks of reserve arms, equipment, stores etc. held in the arsenals and depots in India (Sayeed, 1998).

He further stated that “I am sure that present Indian Cabinet is fully determined to prevent the establishment of Pakistan” (Collins & Lapierre, 1997: 145).

In response, the Congress leadership started propaganda against Commander- in Chief of India and gave Mountbatten a cause to manoeuvre Field Marshal’s early exit. This was not Bharat’s last anti-Pakistan move. It refused to release Rs. 550 millions of Pakistan share of British India treasury. The state of Pakistan was near to bankruptcy. It was unable to pay salaries of its administrative staff besides meeting other obligations including care of the refugees. Describing Hindu mind-set about the emergence of Pakistan, Tucker (1950: 51) stated that Hindus said “if the Muslims are willing to get Pakistan, let them damned well have it and with a vengeance. We shall try to share every inch of their territory and make it sure that it cannot be an economically viable state”. This kind of mind-set determined Hindu attitude towards

Pakistan during the partition.

On June 3, 1947 the British government announced final plan for the partition of India. It was to be implemented by June 1948 as initially announced but was done on August 15, 1947. India was a large sub-continent. It comprised a dozen provinces governed by the British. In addition there were 562 large and small states ruled by 108

Indian princes. To partition the country into two independent states in just 73 days was unprecedented. For instance, when Burma was separated from British India in

1937, it took two years. Similarly division of Bombay Presidency in 1935 to form

Sindh as a separate province took two years to complete the process. Likewise when

Orissa was separated from Bihar province in 1936 the process took two years.

Partition of none of these provinces took less than two years contrary to a little over two months for the whole of the sub-continent (Malik, 2005).

The one reason advanced for the hurried partition was that the British, faced with worsening law and order situation, wanted to leave India as early as possible. No doubt isolated communal disturbances had erupted in some parts of the country early in summer but the situation was not so threatening as to shake imperial power of the

British Empire. Above mentioned reason was not so convincing. Hurried partition was a ruse to cover a conspiracy- a secret deal between Mountbatten and Congress

(Malik, 2005).

In this regard the question of common Governor General was also important.

The deal between Mountbatten and the Congress for a very early transfer of power in return for acceptance of Dominion Status by the Congress had one unforeseen consequence that was to leave its mark on the history of the partition of India. It was obvious to anyone that the process of partition could not possibly be completed within only two months, some provision to resolve the unsettled issues had to be made.

Mountbatten’s solution was that he should continue as common Governor-General of

India and Pakistan for eight or nine months from August 15, 1947, onward (Ahmad,

2014; Ali, 1973: 174).

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The British Government was conscious to keep both India and Pakistan in the

British Commonwealth. Mr. Jinnah had already declared in the first week of the April,

1947 that Pakistan would join the Commonwealth but on the other side, Congress was not willing to join it and it declared time and again that India would be a Republic.

So, Congress cut a deal with Lord Mountbatten through V. P. Menon, a senior advisor on Mountbatten’s staff (Malik, 2005: 58).

On May 1, 1947, V.P. Menon conveyed Sardar Patel’s massage to Lord

Mountbatten. According to Pyarelal (1956), the secretary of Mr. Gandhi, Congress offered that it could accept Dominion Status and Lord Mountbatten as first Governor

General of India but in response, power must be transferred within two months. (Ali,

1973: 174; Ahmad, 2014).

On the other hand Mr. Jinnah did not agree to the proposal of common

Governor-General due to so many constitutional and political reasons. Mountbatten was bitterly wounded. His dream as common Governor General was shattered. Ali

(1973: 177) describes the feelings of Mountbatten in the following words when one day he was working with Mr. Jinnah and Liaqat Ali Khan on Indian Independence

Bill in the Viceroy’s House:

“He explained to Mr. Jinnah with arguments, appeals and

bluster. He claimed that the proposal for a common Governor-General

was inspired by the highest motives and was in best interests of

Pakistan. Without him as a common Governor-General, Pakistan

would put itself at the gravest disadvantage”.

He further writes that “from that time, there was a noticeable change in

Mountbatten’s attitude towards Pakistan and the problems of partition. Mountbatten

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had barely tolerated Jinnah in the past; now there was active hostility”. On the other side, Jinnah was still convinced about the Mountbatten’s fairness, and refused to see any change in him even when other pointed it out to him.

The decision of Jinnah against the common Governor-General had great effects on Pakistan. The loss that Pakistan faced regarding the material assets was easy to compensate but the other important decisions, particularly about the boundary awards, accession of states and the Kashmir question left great consequences for

Pakistan.

Ultimately, after the negotiations and consultations with Indian Leadership,

Lord Mountbatten flew to London in May 1947 to discuss the procedure of the transfer of power. The actual story was that Lord Mountbatten had carried a plan and that was approved by the British Cabinet. It is known as 3rd June Plan or Mountbatten

Plan (Sen, 1978: 172). The most important features regarding this study are as under:

1. The provincial Legislative assemblies of Bengal and the Punjab (excluding

European Members) will each be asked to meet in two parts, the one

representing the Muslim majority districts and other the rest of the

province. Members of the two parts of the Legislative Assembly sitting

separately will be empowered to vote whether or not the province should

be partitioned. The issue will be decided by simple majority.

2. In event of partition, each part of the Legislative Assembly will decide

which Constituent Assembly they will join.

3. If the partition decision is adopted, a Boundary Commission will be set up

by the Governor General (Khan, 2009).

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The Bengal Legislative Assembly met on June 20, 1947 and the Punjab on

June 23, 1947. The net result of the voting was partition of the provinces. Two boundary commissions were set up to demarcate the boundaries of Punjab and

Bengal. Both Congress and Muslim League leadership agreed to abide by the awards of the boundary commissions and to enforce them (Sen, 1978: 176). Each boundary commission was to consist of two representatives of India and two of Pakistan with an impartial member as chairman. In the situation of a conflict between the representatives of India and Pakistan, the chairman will decide the matter (Malik,

2005).

It was also proposed by Pakistan that the problem of demarcation of boundaries should be given in the hands of UNO but Nehru rejected the proposal on the ground that this would cause a long procedure and delay (Qureshi, 1965). Mr.

Jinnah (Quaid-i-Azam) suggested three law lords from United Kingdom as impartial members. But Mountbatten told him that law lords were elderly persons who could not face the temperature of the Indian summer. He persuaded Jinnah to accept an eminent British Lawyer Sir (later Lord) Cyril Radcliffe as chairman of the boundary commission12 (Malik, 2005). For the Bengal Boundary Commission, the Congress nominated Justice C. C. Biswas and Justice O. K. Mukerjee as its members and the

Muslim League nominated Justice S. A. Rehman and Justice Abu Saleh Muhammad

Akram. Representatives of the Punjab Boundary Commission were Justice Din

Muhammad and Justice Muhammad Munir on behalf of Pakistan, and Mehr Chand

Mhajan and Tej Singh on the behalf of India. All of them were High Court Judges

(Qadri, 1983; Ali, 1973; Sen, 1978: 176).

Boundary commissions were instructed to demarcate the boundaries of the two parts of the Punjab / Bengal on the basis of the contiguous Muslim and non-Muslim 112

majority areas. In doing so, it was also asked to take into account other factors. Basis of determining Muslim/non-Muslim majority areas was the 1941 census (Sen, 1978:

173).

Terms of reference of the boundary commission were ambiguous. For instance it was not specified whether a district or a tehsil was the basic administrative unit for

“ascertaining the contiguous majority areas of Muslims and non-Muslims.” The term

“other factors” was also vague.

4.2.1 The Punjab Award (Radcliffe Award)

The Radcliffe stated in his report containing the territorial award regarding the

Punjab province that due to the conflicting opinions of my colleagues, an agreed solution of the territorial problem was not to be achieved (Nawaz, 2011: 621). He further stated in paragraph 9 that, the task to draw a boundary line in the Punjab was very difficult. All respective parties claimed a vast tract of territory but in my opinion debateable area lie in and around the Sutlej and Beas rivers on the one side and the river Ravi on the other. The demarcation of the boundary in this area was more complicated due to the existing canal system which is so important for the life of

Punjab…….

In paragraph 10, he stated that he had thought for a long time to demarcate

Muslim majority areas located in the east of the Sutlej River and in the angle of the

Beas and Sutlej rivers but in his judgement, it would not be in the interests of the either state to include these areas in West Punjab and there were also other factors such as disruption of water system and railway communication that could displace the primary claim of contiguous majorities……

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He further stated in paragraph 11 that it was not possible for him to preserve the irrigation system of Upper Bari Doab Canal undivided, which is located between the Madhopur (located in the tehsil Pathankot of the Gurdaspur district) and the western border of the Lahore district. Although he had made some minor changes in the boundary between Lahore and Amritsar districts to minimise the consequences of this severance……… (Nawaz, 2011: 623; Qureshi, 1965: 273).

The mandate of the boundary commission was to demarcate the boundaries of the Punjab on the basis of contiguous Muslim and non-Muslim majority areas but

Radcliffe Award gave number of Muslim majority areas to India and not a single

Hindu majority area was given to Pakistan. If the justification of this act is searched in the phrase “other factors,” it is very strange that the other factors worked totally in favour of India and against Pakistan. Two contiguous Muslim majority tehsils in

Gurdaspur district, Gurdaspur and Batala, along with Pathankot tehsil were given to

India to provide a land route to the state of Jammu and Kashmir. Ajnala, a Muslim majority tehsil of district Amritsar, was also given to India. Two contiguous Muslim majority tehsils of district Jullaudhar, Nakodar and Jullundhar, which are located in the angle of the River Beas and Sutlej, were also allocated to India. Zera and Ferozpur were two other Muslim majority tehsils in Ferozpur district which are located east of the Sutlej River, were also allotted to India (Malik, 2005). Detail of these contiguous

Muslim majority areas is given in the following table.

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Table 4.1: Muslim Majority Areas according to the Census of 1941

District / Area Total Muslims % Hindus % Sikhs % Christian % Tehsil Km2 Population Gurdaspur * 4,723 1,153,511 589,923 51.14 290,734 25.21 131,561 11.41 50,262 4.36

Gurdaspur** 1,287 328,819 171,498 52.16 57,281 17.42 76,695 23.32 22,506 6.84

Batala ** 1,235 380,053 209,277 55.07 33610 8.84 116,413 30.63 20,670 5.44

Jullandur* 3,476 1,127,190 509,804 45.23 311,010 27.59 298,741 26.50 5,971 0.53

Jullandur ** 1,008 443,010 226,623 51.16 123,718 27.93 86,996 19.64 4,656 1.05

Nakodar ** 945 228,783 135,918 59.41 39,766 17.38 52,037 22.75 929 0.41

Ferozpur * 10,523 1,423,076 641,448 45.07 287,733 20.22 479,486 33.69 11,031 0.78

Ferozpur ** 1,761 290,286 160,371 55.25 53,520 18.44 70.782 24.38 3,847 1.33

Zira ** 1,279 210,819 137,586 65.26 18,863 8.95 50,209 23.82 3,801 1.80

Amritsar* 4,043 1,413,876 657,695 45.52 217,431 15.38 510,845 36.13 25,330 1.79

Ajnala** 1,083 237,049 140,939 59.46 15,415 6.50 67,986 28.68 12,708 5.36

Source: (Amir, 2014) District* Tehsil**

Fig. 4.1 The Punjab After Partition (August 15, 1947)

Source: (Amir, 2014).

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The reason given by Redcliff that contiguous Muslims majority areas were given to India in order to avoid the disruption of water system is very thin. All the canals taken off from the Ferozpur Headworks except the Bikaner Canal irrigated mostly Muslim majority areas should have gone to Pakistan. By awarding them to

India he not only disrupted a water system but also violated the principles of

International Law. Moreover, he drew the boundary line in such a manner that it included Ferozpur Headworks in India (Malik, 2005).

Radcliffe line cut across the River Ravi and the Sutlej. It divided Upper Bari

Doab Canal (UBDC) system into parts, leaving its headworks at Madhopur in India and irrigated area in largely Muslim majority tehsils of Batala, Gurdaspur, Ajnala,

Lahore and Kasur. Severance of this canal impacted livelihood of millions of the poor people of West Punjab.

West Punjab depended far more than East Punjab upon the system of canal irrigation, which was among the most beneficial projects the British had undertaken in the subcontinent. The life giving waters of the Indus System changed an arid and semi-arid area of the Punjab into the green fields. By giving complete control of the important canal headworks to India, Radcliffe award put the economy of West

Pakistan in danger.

4.2.2 Punjab Partition Committee

Two bodies (Punjab Partition Committee and Arbitral Tribunal) were established to divide physical assets. The Punjab Partition Committee dealt with the matters related to the division of the Punjab Province. It consisted of two minister- level members, one from the East Punjab and the other from West Punjab, presided over by the Governor. Sardar Shaukat Hayat represented West Punjab and Sawarn

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Singh East Punjab. In case of disagreement, the Partition Committee was to make a reference to the Arbitral Tribunal for an award. The Partition Committee had separate committees for different subjects. Committee B was on ‘Division of Physical Assets’ and for settling questions relating to future management of joint assets including water shares. It had equal number of members13 representing the both province of

East and West Punjab. Punjab Partition Committee received a unanimous report of the

Committee B on the issue of post partition water shares of East Punjab and West

Punjab, stating in paragraph 15 as: “The Committee is agreed that there is no question of varying the authorized shares of water to which the two zones and the various canals are authorized” (Ali, 1973).

Partition Committee discussed the unanimous report of the Committee B on

July 28, 1947. According to Ali (1973: 318), “the Partition Committee maintained the pre-partition shares of West Punjab and East Punjab in canal waters”. It appointed two members of Committee B to implement the provisions in paragraph 15 with respect to the maintenance of supplies to each zone and canal”.

4.2.3 The Tribunal Awards

In response to the apportionment of water, historians from the both countries

(India and Pakistan) have conflicting views. Pakistani historians claim that the

Arbitral Tribunal received no reference relating to the water shares of the West

Punjab. On release of the Boundary Award, India became the Upper riparian by having manoeuvred control of Madhopur and Ferozpur Headworks. She had her hand on the spigot of irrigation supply to west Punjab’s 11 large canal networks. It was a matter of life and death for West Punjab to ensure continued flow of her post-partition water shares. It required formal written agreement specifying water shares of East

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Punjab and West Punjab. A formal agreement required reference to Partition

Committee. India as the upper riparian was not in need of such an agreement.

However, West Punjab needed it more. It was for her to move the matter in the

Partition Committee. In case of disagreement, the Committee was to refer the matter to the Arbitral Tribunal for an award. But no such reference was made. As Ali (1973:

318) described “The question of the apportionment of the irrigation waters of the rivers common to India and Pakistan was not referred to the Partition Committee because there was no dispute to refer”. On the other side Gulhati (1973: 49) argues that five issues had been presented by the Partition Committee to the Arbitral Tribunal till November 30, 1947. All these issues were related to the financial adjustments needed for irrigation system, the crown waste lands, irrigated forest plantation, seigniorage charges for the maintenance of canals and general ratio for calculating the needed financial adjustments. He further claims that West Punjab also submitted a claim, with the permission of the Chairman, about the Mandi hydroelectric plant on

December 22, 1947.

Michel (1967: 195) stated that conflict over the apportionment of waters between East Punjab (India) and West Punjab (Pakistan) aroused in autumn of 1947 due to the reduction of monsoon flow in the Indus system. To resolve the conflict, the chief engineers of the both provinces negotiated and reached a “Standstill Agreement” on 18 December 1947. That Agreement maintained existing discharges from the headworks on Upper Bari Doab Canal, the Bahawalpur Canal and the Dipalpur Canal until March 31, 1948 and both parties would negotiate for further agreement. Both parties also hoped that a solution of the problem would be achieved within due period, but unfortunately West Punjab did not take any step with in the period scheduled by the agreement.

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West Punjab government failed to realise the gravity of the changed situation.

They instead relied on the Partition Committee’s agreement alone beguiled by their

East Punjab counterparts declaring time and again not to vary West Punjab water shares. Similar declarations were made even before the Arbitral Tribunal during hearing of the dispute on valuation of canal system. These were false statements made by the Indian authorities to keep back Pakistan from making a reference for the

Tribunal Award. In the meantime India secretly kept waiting for the day when tenure of the Tribunal expired.

On April 1, 1948, both the Arbitral Tribunal and Standstill Agreement ceased to exist; the Government of East Punjab stopped water supplies in all canals that irrigated agricultural land in Pakistan. These were the Dipalpur Canal System, Central

Bari Doab Canal (CBDC) and the Bahawalpur State Distributary. Of this action, Sir

Patrick Spens14 said before the joint meeting of the East Indian Association and the

Overseas League in London on February 23, 1955 that he suggested that some order should be made about the continued flow of waters in the canal systems but the

Attorney Generals of India and Pakistan told that there would be no interference in the existing flow of water. Our award was made on the basis of this fact which was published at the end of the March, 1948. He further said that he could say nothing except that he was much upset about the grave interference with the flow of water within a day or two on the basis of which our award was made (Ali, 1973: 320).

Indian action, closing of the canal’s waters to Pakistan at the most critical time when wheat crop was near to mature, more aggravated the already tense political relations between the two nations. According to Bengali (2009), the Indian action affected about 1.7 million acres of agricultural land in Pakistan resulting in a loss of about one million tons of wheat production. Furthermore, Lahore, the largest city of 119

the West Punjab, was deprived of its water for municipal use and Power supply from the Mandi Hydropower Project to Pakistan was also cut off. Gulhati (1973: 60) admitted that due to the Indian action “some irrigation channel near Lahore became dry”. There were various opinions about the Indian action in the contemporary press.

For instance, being an upper riparian, India claimed its sovereign rights on Upper Bari

Doab Canal; it used this weapon to pressurize Pakistan to withdraw its claims about

Jammu and Kashmir; it tried to highlight dependence of Pakistan on India in the hope of forcing reconciliation (Michel, 1967: 195). However, Arora (2007: 53) argues that

East Punjab cut off the canal’s water without the prior consent of the central government of India.

By elaborating Indian point of view, Gulhati (1973: 59) argues that most of the modernization and expansion in the irrigation system of Indus River Basin, during the

British Rule, took place in areas of West Punjab and the territory which later constituted East Punjab was neglected. After the partition, newly established province of East Punjab, regarded it totally unjust, especially for any future development, for which expensive storage facilities would be required. He further claims that according to the census of 1941, population of the East Punjab was 21 million and the West

Punjab was 25 million whereas out of 105,000 km2 of annually irrigated land in the

Indus Basin, only 20 percent (21,000 Km2) was located in East Punjab. So, East

Punjab intended to balance the situation by establishing its own water resources on

Eastern Rivers.

While uneven development was considered unjust by India, Pakistan regarded the Indian action as matter of life and death. Due to the scant rainfall outside the monsoonic period and the arid climatic characteristics of the Indus plains, Indus River

System provides mainstay for the agricultural economy of Pakistan. It provides 120

livelihood to 43 million people of West Pakistan, including refugees from India. By providing a comparison of water availability for India and Pakistan at national levels,

Ali (1973: 316) stated that India has many other river systems such as Ganga and

Brahmaputra which are flowing into the sea untapped, and in addition, there is also a large area of rain fed agriculture. With cutting off the water supplies, crops and herds faced distress and acute suffering in Pakistan and large areas did not have even drinking water (Ali, 1973: 319). By concluding the situation, He described that “East

Punjab used the policy of Machiavellian duplicity and on the part of West Punjab; there was neglect of duty, complacency and lack of common prudence, which had detrimental implications on Pakistan” (Ali, 1973: 320).

Whatsoever the motive of the Indian Punjab was, this action became the root cause of a formal dispute and created more hostility in the already tense relations between the both nations.

Indian action was open violation of the international law regarding the non- navigational uses of the international water courses. It was the application of the doctrine of ‘Absolute Territorial Sovereignty’ or ‘Harmon Doctrine’ which permits every riparian nation to use the waters of an international river, passing through its territory, as it deems fit, without considering any injury or damage to other co-riparian nations. This theory has always been rejected by the international community and cannot become the basis of international water law. Even, the United States itself, being the founder of this doctrine, never applied it during the resolution of its disputes over the water sharing with its neighbouring states, Mexico and Canada. Indian action was also the violation of the right of ‘prior appropriation’ or ‘historical rights’ which is being considered by the experts of the international water law and international community as a sound base of the international law on non-navigational uses of the 121

international watercourses. It was the basic reason of Indian rejection of Pakistan’s proposal to put the case in any international forum for mediation, such as International

Court of Justice and UN Security Council etc. India knew better that its action could not be justified at any international forum.

4.3 Joint Statement of May 4, 1948 (Delhi Agreement)

All Pakistan pleas, appeals and protests to India for reopening the closed canals produced no result. Under this disastrous situation, Pakistan sent a delegation to Delhi on May 3, 1948, to solve the problem under the headship of the Finance

Minister, Mr. Ghulam Muhammad (Ali, 1973). Its members were Mian Mumtaz

Daultana and Sardar Shaukat Hayat, West Punjab Ministers for Finance and Revenue respectively. Indian team was led by Prime Minister Jawahar Lal Nehru including as members Mr. N.V. Gadgil, Minister for Works, Mines and Power, Government of

India, and Mr. Swaran Singh, Irrigation Minister, East Punjab.15Pakistan protested against the stoppage of water in her canals in blatant breach of Partition Committee

Agreement and contrary to repeated declarations by Indian representatives. But it failed to cut the ice. The Government of East Punjab made it clear that the flow of water could not be restored unless West Punjab acknowledged that it had no right to the water (Gulhati, 1973; Malik, 2005).

It was not acceptable to Pakistan. And India was not agreeing to Pakistan’s proposal that the two governments refer the matter to the International Court of

Justice for judgment on their water rights. There was a deadlock. Ghulam Muhammad requested Lord Mountbatten to interfere into the matter and in response Lord

Mountbatten consulted with Jawaharlal Nehru.

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A statement was then put before the members of Pakistan’s, delegation and they were asked that ‘for restoration of the flow of water, they have to sign it without changing a word or comma. On May 4, 1948, it was signed by Ghulam Muhammad and two ministers of the West Punjab on behalf of Pakistan and Jawaharlal Nehru and two ministers of East Punjab on behalf of India (Ali, 1973; Malik, 2005; Palijo, 2011:

31-32).

The statement further declared that, apart from the question of law involved, both governments were willing to solve the problem in a practical spirit. The government of the East Punjab would gradually reduce water supply to the Central

Bari Doab and Dipalpur canals in order to give sufficient time to the government of the West Punjab to establish alternative sources (Gulhati, 1973). The statement further declared that water was being restored, that West Punjab was to deposit in escrow such “ad hoc amount as may be specified by the Prime Minister of India” to cover certain disputed payments, and that, after an examination of the legal and other issues involved by each side, further meeting would take place. In conclusion, it was hoped that a friendly solution would be found (Ali, 1973; Malik, 2005).

However, ‘the Joint Statement’ restored water to Pakistan but at heavy cost.

Firstly, Pakistan was to pay a large amount of money to India for the transportation of water through India. Secondly, India was to be permitted to decrease supply of water to Pakistan gradually. Although, Pakistan had signed the statement, she was not satisfied with its provisions therein, and not only objected the Statement itself but also the atmosphere in which it was signed. On the other side, India was satisfied because she considered it an international agreement, and completely denied Pakistan’s position that the agreement was invalid and it was signed under heavy pressure.

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Signing of the joint statement was a grave mistake of Pakistan because, thereafter, India made the contents of the joint statement the basis of all further negotiations. In fact, the Indian position so hardened that in meeting of 29 May 1950 at Karachi, the Indian delegation declared that India intended to appropriate the entire useable flow of the Sutlej, Beas, and Ravi besides taking a further 10,000 cusecs from the Chenab through a tunnel at Marhu (Malik, 2005). Looking back with the advantage of hindsight, it can be stated that India stuck to its position from day one and forced Pakistan to make one concession after another till it was able to extract every bit of what it had demanded and much more besides.

Problems with Joint Statement (Delhi Agreement as India called it) started almost immediately, when Pakistan started to dig a canal from the right bank of the

Sutlej River, upstream of Ferozpur Headworks. The programme was to link River

Sutlej directly to Dipalpur Canal, bypassing Ferozpur Headworks, from where India could shut off the supply of that canal. It was the only point where Pakistan was upper riparian of River Sutlej. India, as lower riparian objected on the construction of that channel on the ground that bypassing would be injurious not only for the Ferozpur

Headworks but also for its entire irrigation system. Furthermore, it would be detrimental for India’s planned uses (Gulhati, 1973: 82-84).

Consequently, a series of telegrams were exchanged between Jawaharlal

Nehru, the then Prime Minister and Foreign Minister of India, and Zafarullah Khan, the then Foreign Minister of Pakistan. Pakistan justified its action to dig a channel upstream of Ferozpur Headworks as precautionary measure against Indian action of shutting off the supplies in future. While India replied that Pakistan’s diversion, upstream of the Ferozpur, would be detrimental to Ferozpur Headworks. Keeping in view the weak geographical position of Pakistan, India threatened that it would 124

retaliate and dig a canal further upstream of the Pakistan project. Ultimately, Pakistan stopped work on its channel and informed India about its decision on July 6, 1948

(Gulhati, 1973: 71).

Besides this project, both India and Pakistan started new schemes in the Indus

Basin. While as Pakistan started new projects on the Indus, Chenab and Ravi, India also started some irrigation schemes on the Eastern Rivers. Among Indian projects,

Bhakra Dam was an important project with a capacity to store entire flow of the River

Sutlej. Pakistan feared that it will deprive her of water supplies (Ali, 1973: 324;

Michel, 1967: 206). Resultantly, the construction of new projects increased tension between the two neighbouring states over the shares of water. To reduce the hostility and to resolve the problems, a meeting was held in Lahore in December, 1948 chaired by Zafarullah Khan from Pakistan and N. Gopalaswami Ayyangar from India but no solution could be achieved (Gulhati, 1973: 72; Michel, 1967: 206).

From July 1950 onward, Pakistan refused to deposit the sum, specified in the

Joint statement (Delhi Agreement), and stated that the amount would be paid only when the dispute would be taken to any international organization, such as

International Court of Justice or Security Council of United Nations. Pakistan also rejected the Joint Statement of May 4, 1948 and stated that the statement was signed under ‘duress’ and at the same time it had given a notice of its termination. In response, India stated that there was no question of ‘duress’ and agreement was signed in a complete friendly and cooperative environment and no party raised any objection which Pakistan had recently made (Tabassum, 2004: 13; Gulhati, 1973: 80).

From that stage, a deadlock was developed between the two countries due the conflicting views and interpretations of the provisions of the Joint Statement and there

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were no discussions or negotiations for a long time over the issue of water. This atmosphere remained up to the year 1951.

Meanwhile, India was steadily increasing its forcible appropriation of water at the cost of Pakistan. Supplies to Pakistan canals were reduced at the crucial times when crops were being matured or sowed. Pakistan was facing a very critical situation. To provide an insurance against continued Indian threats to cut off water supplies, some link canals such as the Balloki-Sullemanki link were built by Pakistan at its own expense. But these link canals could not wholly solve the problem (Malik,

2005).

The process of negotiations restarted at the end of the year 1951, when both

India and Pakistan accepted the offer of good offices of the World Bank. Actually, the

World Bank entered in the water dispute related to the Sutlej River, but its nature of involvement totally changed when David Lilienthal (former chairman of the

Tennessee Valley Authority, USA) visited the region and presented his solution to solve the problem.

Pakistan’s anxiety grew as time passed without a viable solution. At that stage, she was ready to take her complaint to the UN Security Council (UNSC). Meanwhile, a ray of hope appeared from the International Bank for Reconstruction and

Development (the World Bank) when it offered its good offices to solve the canal water dispute between India and Pakistan (Nayar, 2003).

4.4 Intervention of World Bank for Water Dispute Management

The deadlock in the talks continued till the David Lilienthal’s16 visit to sub- continent in February 1951. He was invited by the Indian Prime Minister Jawaharlal

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Nehru as his personal guest. He visited on the behalf of World Bank to write some articles related to the unified development of Indus River Basin possibly in the line of

Tennessee Valley management in United States of America. Contrary to this, Malik

(2005) argues that he visited India to serve a strategic mission for his country, i.e. to prevent India from joining the Communist block and bring it closer to USA (Malik,

2005: 161).

In his initial programme to visit sub-continent, Pakistan was not included. He included Pakistan on the advice of a renowned American journalist Mr. Walter

Lippmann. During his journey to Pakistan, he met Liaqat Ali Khan, the then Prime

Minister of Pakistan, and discussed various important issues including problem of

Jammu and Kashmir. While in India, he negotiated with Indian Prime Minister Mr.

Jawaharlal Nehru about the US-India relations in the context of “lack of understanding” and “unfriendliness” (Malik, 2005: 163).

He also visited some projects in the both countries and discussed issues related to the use and development of Indus waters with engineers at work. He also pointed out that, in case water dispute was referred to the International Court by Pakistan, it might secure its water rights but the decision of Court would not be sufficient for the maintenance of peace and food for the people of the region (Tabassum, 2004: 14). On the other side, he remained engage in discussion with the leadership of both countries and envisioned that the development of Indus Basin could be made, keeping in view the development model of Tennessee Valley Authority. On his return to home, David

Lilienthal published an article titled “Another ‘Korea’ in the Making” in Collier’s

Magazine on August 4, 1951 and gave some worth quoting suggestions:

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 At the starting point, fears of Pakistan about the deprivation of Indus

waters and a return to desert, must be addressed and her historical use of

the Indus waters must be confirmed by India, provided she works together

with India in a joint use of the Indus Basin on an engineering basis that

would also assure future uses of India;

 The entire Indus Basin must be developed as a unit- designed, built and

operated as a unit;

 An Indus Engineering Corporation be established with the technical men

from India, Pakistan and World Bank, to work out an operating plan for

storing, diverting and distributing water wherever feasible on the Indus

System;

 For the funding of work and Indus Engineering Corporation, International

financing be arranged, perhaps by the World Bank (Lilienthal, 1951;

Biswas, 1992; Michel, 1967: 222).

Basic theme of the David Lilienthal’s plan was the ‘joint management’ of the

Indus Basin which could be beneficial for the future development of irrigation system in the Indus Basin. Mr. David Eugene R. Black, the then president of the World Bank and a close friend of David Lilienthal, read the article and called him for his recommendations. In response, Davis Lilienthal suggested him to contact directly to the leadership of the both states (Biswas, 1992).

4.4.1 Road to the Dispute Settlement

In September 1951, Mr. Black wrote directly to Jawaharlal Nehru and Liaqat

Ali Khan, the then prime ministers of India and Pakistan respectively, for

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negotiations. Both the prime ministers accepted the mediation from the World Bank in their letters of September 25, 1951. In response, Mr. Black explicitly outlined

“essential principles” of the Lilienthal’s plan that might be followed for the resolution of dispute, in his letter of November 8, 1951 to Khawja Nazimuddin,17 the then prime minister of Pakistan and Jawaharlal Nehru, the Indian Prime Minister.

 The water resources of the Indus Basin are enough for the existing and

future needs of the both countries;

 The development of the water resources should be done jointly by India

and Pakistan to promote economic development of the Indus Basin viewed

as a single unit;

 To solve the problems of development and utility of the water resources of

the Indus Basin, pure technical approach should be adopted, without

considering the past negotiations, grievances and claims of the parties

(Alam, 2002: 342; Biswas, 1992: 205).

Furthermore, Mr. Black also suggested that a working party comprised of a highly qualified engineers from both countries with a Bank’s representative, should be made to start the process of negotiations and to prepare a comprehensive plan for the most effective utilisation of the water resources of Indus Basin (Biswas, 1992).

4.4.2 Indus Basin Working Party

A Working Party was established to prepare a comprehensive joint plan. It was comprised of Mr. A. N. Khosla (Chairman of Central Water and Power

Commission of India) as India’s Designee who was assisted by Mr. N. D. Gulhati and

J. K. Malhotra, and Mr. S. A. Hamid (Chief Engineer of West Punjab Irrigation

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Department) as Pakistan’s Designee. He was helped by the four senior engineers, representing the governments of the all provinces of Pakistan. World Bank was represented by Lieut. General (Retired) Raymond A. Wheeler (Engineering Advisor of the World Bank) and he was assisted by Dr. Harry Bashore, former Commissioner of U. S. Bureau of Reclamation (Malik, 2005: 124). There were also legal advisors for each of three designees but they could not take part in the meetings of the Working

Party (Biswas, 1992).

The initial meeting of the Working Party (comprised of delegations from

India, Pakistan and World Bank) was held in Washington D. C. at World Bank

Headquarter on May 6, 1952. Its terms of reference were to develop an outline of a plan and a list of studies for possible technical measures to enhance the available water supplies of the Indus System for the economic development of the region. After exhaustive deliberations of three weeks, the Working Party agreed to a draft with following points:

 To determine the total water supplies of the Indus River Basin and their

subdivision according to requests of the either party.

 To determine the requirements of cultivable and irrigable land in each

state.

 To prepare a comprehensive plan, calculation, collection and compilation

of raw data and surveys and investigations are mandatory, as either side

requests.

 To prepare cost estimates and construction schedule for new engineering

works included in the comprehensive plan.

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It was also noted that any data collected by either side would be verified by the Working Party on the request of either party but its acceptance or to include any topic for study, would not be committed to either party but to its relevance and materiality (Biswas, 1992: 206).

After agreeing on above mentioned outline of a programme, the both delegations returned to their home countries. Next two meetings of the Working Party held in November 1952 at Karachi and at Delhi on January 24 to 29, 1953. Final round of meetings started on September 8, 1953 at Washington but due to the differences on the development and utility of the waters of the Indus System, no comprehensive plan could be produced. In mid of September 1953, it was decided that each country should prepare its own plan and submit to the World Bank on

October 6, 1953. Consequently, after collection of required data and field trips, both countries submitted their plans on 6th October (Malik, 2005, p. 125). Both countries were almost agreed on the quantity of available supplies but they differed widely on the allocation of these supplies.

Indian Plan (in MAF*)

Allocation to India Allocation to Pakistan Total Usable Supplies

29.0 90.0 119.0

*Million Acre Feet Source: (Malik, 2005: 126; Biswas, 1992: 206)

Pakistani Plan (in MAF*)

Allocation to India Allocation to Pakistan Total Usable Supplies

15.5 102.5 118.0

*Million Acre Feet Source: (Malik, 2005: 126; Biswas, 1992: 206)

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The Indian plan estimated 119.0 MAF of total usable supplies and it allocated

29.0 MAF to India and 90.0 MAF to Pakistan. On the other side Pakistani proposal estimated 118.0 MAF of total usable supplies and it allocated 15.5 MAF to India and

102.5 MAF to Pakistan.

Due to the substantial differences on the allocation of water supplies, the reconciliation of two plans was very difficult. So, the two parties were requested by the World Bank to revisit their respective plans. After extensive discussions, both countries submitted their modified plans to the Bank. Allocation of water supplies according to the revised proposals is shown in the following tables;

Indian Modified Plan

Allocation to India Allocation to Pakistan

100 percent flow of the Eastern Rivers Zero flow of the Eastern Rivers and 93 and 7 percent flow of Western Rivers percent flow of Western Rivers

Source: (Salman & Uprety, 2002: 46; Gulhati, 1973; Biswas, 1992: 206)

Pakistani Modified Plan

Allocation to India Allocation to Pakistan

30 percent flow of the Eastern Rivers 70 percent flow of Eastern Rivers and and Zero flow of Western Rivers 100 percent flow of Western Rivers

Source: (Salman & Uprety, 2002: 46; Gulhati, 1973; Biswas, 1992: 206)

The Sutlej, Ravi and Beas are considered as “Eastern Rivers” and the Indus,

Jhelum and Chenab are called “Western Rivers”. The Indian revised plan allocated

100 percent flow of the eastern rivers and seven percent of the western rivers to India and Zero percent flow of the eastern rivers with 93 percent flow of the western rivers to Pakistan. On the other side, Pakistan’s revised proposal allocated 30 percent flow 132

of the eastern rivers and Zero percent flow of western rivers to India and 100 percent flow of western rivers with 70 percent flow of eastern rivers to Pakistan. Both the countries tried to adjust their initial plan to some extent, but revised plans of each country still had many differences to compromise.

From the proposals and counter-proposals, it became obvious that the joint development and use of the water resources of the Indus Basin as a single unit was not possible in this stage of political relations. On February 5, 1954, the World Bank concluded that under these circumstances, further progress in the Working Party was not possible without any new development. The Bank then presented its own proposal with the approval of its management.

The World Bank Proposal

Allocation for India Allocation for Pakistan

100 percent flow of Entire flow of the western rivers except a small amount of the eastern rivers the Jhelum flow presently used in Kashmir.

Source: (Malik, 2005: 128; Biswas, 1992: 206; Arora, 2007: 57)

The Bank proposal allocated 100 percent flow of the eastern rivers to India except that for a transition period in which Pakistan would complete its link canals to transfer the flow of western rivers to the eastern rivers and India would continue to allow Pakistan’s historic use of water from eastern rivers. It also allocated entire flow of western rivers to Pakistan, with exception of small amount from the River Jhelum which is being used in Kashmir (Arora, 2007).

The Bank’s proposal was given to the both countries. India accepted the proposal as the basis for the agreement on 25th of March 1954 but Pakistan felt that it did not assure sufficient water supplies to fulfil its requirements. Politically, Pakistan

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was not in a position to give away water and economically it did not have the sufficient finances to build infrastructure unilaterally for the transfer of surplus water from the western to eastern rivers. Thus, it refused to accept the proposal (Malik,

2005:160-161). Pakistan also felt that only a system of link canals would not be sufficient to fulfil all requirements without including storage facilities in the replace works. The Bank agreed to address the contention of Pakistan and conducted its own independent studies to examine the issue and to prepare an adequate system of replace works for the transfer of water of the western rivers to eastern rivers. The studies confirmed that the sufficient supplies were not available throughout the year, especially in critical crop periods, to meet the requirements and storage facilities were required to meet the shortages. Keeping in view the outcome of the studies, the Bank issued an aide memoire on 21st of May, 1956 that modified its original plan and included storages facilities in the system of replace works (Salman & Uprety, 2002: 47).

To ease the environment for a permanent solution of the dispute many ad-hoc agreements were signed during the period from April 1, 1955 to March 31, 1960, except a period of one year (from October 1957 to September 1958) when process of negotiations was completely freezed. Under such agreements India agreed to supply water to Pakistan with strong terms and conditions of specified period and specified quantity in a year. It is very important to note that the period during which the process of negotiation was stopped, could have created havoc in Pakistan but rain in mountainous part of the basin provided it some relief with a pain to negotiate for surplus water (Tabassum, 2004: 102). In the end of the 1958, Pakistan proposed a plan including two storage dams, one on Jhelum River and other on the Indus; three smaller reservoirs on the same rivers, and a system of link canals. The estimated cost was proposed $1.12 billion. India objected not only the cost but also the replace works

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proposed by Pakistan and presented its own plan which was smaller in scale. Indian plan was rejected by Pakistan because it necessitated continued reliance on Indian water deliveries (Arora, 2007).

On October 27, 1958, General Muhammad Ayub Khan, the then Army Chief of Pakistan, took over the power and dismissed all existing democratic institutions on the grounds of political instability and economic deterioration. The new military ruler tried to legitimate his action on the promises to seek the permanent solution of the disputes with India, maintain the situation of law and order in the country and put economy on its feet (Choudhury, 1968: 166).

Ayub Khan was disposed more for a compromise on canal water dispute than conflict with India. On December 2, 1958, Pakistan accepted the World Bank’s proposal of February 5, 1954, and the aide-memorie of May 21, 1956 without any condition and reservation (Malik, 2005: 147). Though, India had already accepted the

1954 plan but it objected the need of storage facilities and insisted that its liability was limited to the original proposal of 1954 (Salman & Uprety, 2002). So, Bank recognised that dispute could not be resolved without additional financing for the gigantic replacement works which could not be bearable for both India and Pakistan.

In May 1959, Mr. Black visited the region. He suggested in his negotiation with Indian Prime Minister Jawaharlal Nehru that India’s share for the replacement works could be fixed at a specific amount, irrespective of the final estimated cost. He also offered him financial assistance to construct the Beas Dam. In response Nehru agreed for transition period of 10 years during which water would be supplied to

Pakistan. In Pakistan Mr. Black negotiated with President Ayub Khan and they agreed

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to replacement-cum-development programme, including two reservoirs, Tarbela at

Indus and Mangla at Jhelum (Biswas, 1992).

In August 1959, Mr. Black successfully managed a consortium of donor countries18 to sign an agreement of Indus Basin Development Fund. Total cost of construction in Pakistan was specified to be $893.5 million, from which $541 million were provided by consortium as a grant and $174 million by India. In addition,

Pakistan received $150 million as loan and $15 million in foreign exchange by the consortium (Biswas, 1992: 208).

Ultimately, the treaty was signed on September 19, 1960 at Karachi then the capital of Pakistan. Prime Minister Jawaharlal Nehru signed on behalf of India,

President Ayub Khan for Pakistan and Mr. William B. Iliff for the World Bank. The

Treaty was rectified by Pakistan on December 27, 1960 and by India on December 28,

1960 (Malik, 2005).

Besides the Indus Basin Water Treaty, three other agreements were also signed in 1960. The first agreement was signed between Pakistan and the friendly states , such as Australia, Canada, New Zealand, United Kingdom, United States and the West Germany, to establish Indus Basin Development Fund of $ 894 million. Out of the total amount of $ 894 million, the friendly states contributed $ 640, India $ 174 million and a loan of $ 80 million was provided by the World Bank to Pakistan. The fund was managed to transfer the infrastructure and for the construction of replacement works on the western rivers (Miner, 2009: 205). The second agreement was signed between Pakistan and the World Bank for loan of 90 million. The third agreement covered a loan of $ 70 million from the US Development Fund (Tabassum,

2004: 29-30).

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4.5 Conclusion

India was the home of diverse religious communities. Hindus and Muslims were two dominant groups that were living peacefully for centuries. Both communities jointly started struggle to liberate their homeland from the alien rule but in 1867, the Urdu-Hindi controversy started in Banaras which sowed the seeds of hatred between them. In 1885, the Indian National Congress was established by the A.

O. Hume to provide a political platform to the Indian people. Soon after its establishment, the Muslims felt that the Congress was the champion of the Hindu majority. So, the Muslims established their own political party ‘All India Muslim

League’ in 1906 at Dhaka and demanded reserved seats in all representative bodies.

They also demanded right of separate electorate and weightage. Their all demands were accepted and incorporated in the Government of India Act, 1909 by the British

Parliament and were retained in the Government of India Act, 1919 and 1935.

Both political parties (Congress and Muslim League) struggled hard to liberate their country from the alien rule with divergent demands. The Congress was demanding that British should leave India and powers should be transferred to the

Indians according to the Westminster system. It meant that powers should be transferred to the Congress. On the other side, Muslim League was demanding from the British that before leaving, they should divide India into Hindu and Muslim India

(Pakistan). After the 2nd World War, the British decided to leave India ultimately by creating two independent and sovereign states of India and Pakistan.

On 3rd June 1947, the Mountbatten Plan was announced in which the partition of the Muslim majority provinces of Bengal and Punjab was also mentioned and finally it was announced in the Indian Independence Act on July 18, 1947. To

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partition the both provinces, two boundary commissions were made under the chairmanship of Sir Cyril Radcliffe. The Radcliffe announced his award on August

17, 1947, two days later of independence19.

The mandate of the boundary commission was to demarcate the boundaries of the Punjab on the basis of contiguous Muslim and non-Muslim majority areas but

Radcliffe Award gave number of Muslim majority areas to India and not a single

Hindu majority area was given to Pakistan. The reason given by the Redcliff that contiguous Muslims majority areas were given to India in order to avoid the disruption of water system is very thin. All the canals taken off from the Ferozpur

Headworks except the Bikaner Canal irrigated mostly Muslim majority areas should have gone to Pakistan. By awarding them to India he not only disrupted a water system but also violated the principles of International Law.

Radcliffe line cut across the River Ravi and the Sutlej. It divided Upper Bari

Doab Canal (UBDC) system into parts, leaving its headworks at Madhopur in India and irrigated area in largely Muslim majority tehsils of Batala, Gurdaspur, Ajnala,

Lahore and Kasur. Severance of this canal impacted livelihood of millions of the poor people. West Punjab depended far more than East Punjab upon the system of canal irrigation, which was among the most beneficial projects the British had undertaken in the subcontinent. The life giving waters of the Indus System changed an arid and semi-arid area of the Punjab into the green fields. By giving complete control of the important canal headworks to India, Radcliffe award put the economy of West

Pakistan in danger.

Two bodies (Punjab Partition Committee and Arbitral Tribunal) were established to divide physical assets. The Punjab Partition Committee dealt with the

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matters relating to the division of the Punjab Province. The Partition Committee had separate committees for different subjects. Committee B was on ‘Division of Physical

Assets’ and for settling questions relating to future management of joint assets including water shares. Punjab Partition Committee received a unanimous report and accepted the matters on which Committee B was in agreement, namely that the pre- partition shares of West Punjab and East Punjab in canal waters would be maintained.

It means that there was no dispute over the shares of water between East and West

Punjab. Thus, no reference was made to the Arbitral Tribunal for final award.

In the meantime a standstill agreement was signed between India and Pakistan which expired on 31st of March 1948 and that was also the expiry date of Arbitral

Tribunal. As both instruments were expired, India cut off supply of water to each and every canal flowing into Pakistan from Madhopur and Ferozpur headworks on April

1, 1948. Under this disastrous situation, Pakistan sent a delegation to Delhi on May 3,

1948, to solve the problem under the headship of the then Finance Minister, Mr.

Ghulam Muhammad. The said delegation met with their Indian counterparts in Delhi and a joint statement was signed on April 4, 1948, in which India agreed to restore the flow of water but Pakistan was to deposit some amount as escrow to cover certain disputed payments.

The signing of the joint statement was a serious mistake of Pakistan because, thereafter, India made the contents of the joint statement the basis of all further negotiations. Due to the various differences over the interpretation of the Joint

Statement of May 4, 1948, Pakistan terminated it and stated that it was signed under

‘duress’ but India rejected these allegations and stated that there was no question of

‘duress’ and it was signed in a cooperative and friendly atmosphere. In the mid of

1950, due to the differences of opinion over the shares of water, a deadlock was 139

emerged in the discussions and it remained until year 1951. Ultimately, under the auspices of the World Bank, dispute was resolved by signing the Indus Water Treaty in 1960.

End Notes:

1 - In 1867, some prominent Hindus of the Banaras started a movement for the replacement of Urdu by Hindi written in the Nagiri script as the court language in the North-Western provinces. They regarded Urdu as the language of the Muslim origin, representing Muslims rather than Hindu culture. It was the first time when a section of the Indian Muslims, under the leadership of Sir Syed Ahmad Kahn, realized it to be impossible for both Hindus and Muslims to progress as a single nation and for anyone to work for both of them simultaneously (Khan J. S., 1983). 2 - Sir Syed Ahmad Khan born in Delhi in 1817. He joined the services of British East India Company and rose to the position of judge. During the War of Independence of 1857 (British called it revolt); he served the British loyally and with distinction. Immediately after the War, he wrote his famous pamphlet, Essay on the Causes of Indian Revolt. He also defended the Muslims against the charges of disloyalty and sedition in his work the Loyal Muhammadans of India. In 1875, he established the Muhammadan Anglo-Oriental College at Aligarh. After the retirement from service, he worked as a member of the Governor-General’s Legislative Council from 1878 to 1883. He died in 1898. 3 - Bonnerjee, (1898) also favoured this point of view. He describes that “the Indian National Congress, as it was originally started and as it has since been carried on, is in reality the work of the Marques of Dufferin and Ava when that nobleman was the Governor General of India” (p. vii). 4 - Newspapers like Muhammadan Observer, The Victoria Papers, The Muslim Herald, the Rafiq-i- Hind and the Imperial Papers openly voiced against the Congress (Khan J. S., 1983: 13). 5 - The Central National Muhammadan Association, the Muhammadan Literary Society of Bengal, the Anjuman-i-Islam of Madras, the Dindigal Anjuman and the Muhammadan Central Association of the Punjab denounced Congress and appealed to the Muslims not to join it (ibid). 6 - Khalid bin Sayeed describes that 70 members were the part of Shimla Deputation (Sayeed, 1998: 28) 7 - It means that in all local and provincial elections, Muslims must be separately elected by purely Muslim electorates. This demand was justified as under the prevailing circumstances no Muslim elected through a joint electorate would reflect the will of the community and that in the absence of separate electorates every contested election would lead to communal riots. 8 - The demand of weightage means that Muslims should be given more seats than their ratio of population because they still owned much of the landed property in India and they formed a very large proportion of Indian Army. 9 - On the other side, Congress leadership believed that the All India Muslim League was the product of the Viceroy, Lord Minto to materialize the British policy of divide and rule. 10 - Jallianwala Bagh incident took place on April 13, 1919 in the city of Amritsar, where a peaceful procession against the Rowlatt Act was fired upon, in which according to the official report 379 people were killed and 1200 were injured. 11 . Tara Singh was called Master because he was a school teacher in Rawalpindi. He had lost many members of his own family in the violence. He had provoked passions for revenge (Malik, 2005: 53). 12 - Stanly Wolpert describes that Mr. Jinnah suggested the name of Cyril Radcliffe as chairman of the boundary commissions (Wolpert, 1984). 13 . Committee B was consisted of two members, M. R. Sajdev from East Punjab and Syed Yaqub Shah from West Punjab. ibid. 14 . Sir Patrick Spens was an eminent lawyer of United Kingdom. He was appointed as the chairman of the Arbitral Tribunal to decide the conflicting matters referred by the Partition Committee. For details see (Ali, 1973: 320).

16 - Mr. David Lilienthal was former chairman of U. S. Tennessee Valley Authority (T. V. A) and later of American Atomic Energy Commission. T. V. A. was established in 1933 to build dams and

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reservoirs and manage Tennessee River which irrigates lands of the seven American states. It also posesses and operates atomic and coal power projects. (For further details see; www.tva.gov) 17 - Unfortunately, Liaqat Ali Khan was assassinated on October 16, 1951 and Khawja Nazimuddin became the new Prime Minister of Pakistan. 18 - Doner countries were United States, Canada, Federal Republics of Germany, Australia and New Zealand. 19 - There is also a perception in Pakistan that the Radcliffe award was delayed for at least seven days to snatch Ferozpur Headworks, which was initially given to Pakistan. The award was leaked and Sir Radcliffe was pressurized by Jawaharlal Nehru and Maharaja of Bikaner State through Lord Mountbatten, who ultimately changed demarcation line and included Ferozpur Headworks in East Punjab.

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Chapter 5

Indus Waters Treaty and Its Implementation

5.1 Introduction

The IWT is considered to be a very complex instrument of water management.

Its fundamental approach was the development of the Indus Basin by increasing the quantity of water available to the both riparian states, India and Pakistan, and to apportion the water resources on equitable basis between them. In fact, it is the most detailed Treaty in view of its aims and objectives (Salman & Uprety, 2002: 48). The

Treaty is unique in a sense that it simply divides rivers of the Indus system and does not apportion the quantity of available water between the riparian states. This division of the rivers of Indus Basin has minimised the conflicting demands of the parties concerned and would have applied the principle of equitable apportionment. Another significant aspect of the IWT is that it is only a water apportionment agreement which was co- signed by the third party, the World Bank. The Bank mediated and assisted two parties to reach an agreement (Arora, 2007: 9). Furthermore, IWT not only provided a mechanism of dispute settlement between the riparian nations but it also changed the environment of water conflict into the environment of peace, cooperation and development.

IWT has standard and practical values as it contains provisions to implement a mechanism regarding the administration and institutional set up and to manage the water resources of the basin, in addition to the considerable rules of Indus River regime (Salman, 2007: 106-10). The Treaty is not only an original and novel document which increases the amount of available water resources for the riparian

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countries, but it also conciliates the conflicting stands of both nations over the water rights. The Treaty also defines rights and obligations of both countries overwater utilisation of the Indus River System.

Prior to the Treaty, both states were demanding their water shares according to the conflicting approaches of International law. Indian claim was based on the theory of “Absolute Territorial Sovereignty or Harmon Doctrine” which says that every riparian state has an absolute right to use common resources within its territory, as it deems fit, without concerning a damage or injury of its action to the other co-riparian.

On the other side Pakistan’s claim was based on the doctrines of “Prior Appropriation or Historic Use” and “Not to Cause Significant Harm” which protect the right of prior utilisation. Leaving aside the legal principle, the treaty provides a solution that is based on the principles of engineering and economics (Tariq, 2007). Instead of dividing the waters of the Indus System, it divided the rivers of Indus System between

India and Pakistan which gave them sovereign control over the waters and regulations of water supply within their boundaries, subjected to limited use provided to the other party (Salman & Uprety, 2002: 48).

Technical and financial concerns of the both countries were addressed by the

IWT and a timeline for transition was also included. It was signed on 19th of

September 1960 and rectified by the both governments in January 1961 in Delhi1. It was retroactive from April 1, 1960. It contains 12 articles, its preamble and eight comprehensive annexures, including appendices.

5.2 Major Principles of the Treaty

Some important principles of the Indus Waters Treaty are described as under;

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5.2.1 Principle of Water Sharing

Articles II, III and IV of the Treaty provide detailed provisions regarding the water sharing of the eastern and western rivers. Article II gives details about the water apportionment of the Eastern Rivers between the parties, article III provides provisions about Western Rivers and article IV provides details about the Eastern and

Western Rivers.

5.2.1.1 Provisions Regarding Eastern Rivers

I. Waters of the Eastern Rivers (the Ravi, the Sutlej and the Beas) will

exclusively be available for Indian use.

II. Except for Non-Consumptive and Domestic Use, Pakistan shall be

under an obligation to let flow, and shall not be permitted any

interference with the waters of the Sutlej Main and Ravi Main in the

reaches where these rivers flow in Pakistan and have not yet finally

crossed into Pakistan.

III. All the waters, while flowing in Pakistan, of any tributary which, in its

natural course, joins the Sutlej Main or Ravi Main after these rivers

have finally crossed into Pakistan shall be available for the unrestricted

use of Pakistan.

5.2.1.2 Provisions Regarding Western Rivers

I. Waters of the Indus, the Jhelum and the Chenab (Western Rivers) will

be exclusively for use by Pakistan.

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II. India shall be under an obligation to let flow all the waters of the

Western Rivers, and shall not be permitted any interference with these

waters, except for the following uses, restricted (except as provided in

item (c) (ii) of paragraph 5 of Annexure C) in the case of each of the

rivers, to the drainage basin thereof:

a) Domestic Use;

b) Non-Consumptive Use;

c) Agricultural Use, as set out in Annexure C; and

d) Hydropower Generation, as set out in Annexure D. (see

Appendix2)

5.2.1.3 Provisions Regarding Eastern Rivers and Western Rivers

I. In order to supply water for those areas in Pakistan which were being

irrigated by the Eastern Rivers on 15th August, 1947, a system of

replacement works would be built to transfer the waters supplies from

Western Rivers and other sources for the canals in Pakistan which

were dependent for water supplies on Eastern Rivers.

II. Either party shall be free to discharge floods and other excess waters in

the natural channels of the rivers or neither party shall have any claim

against other in respect of any damage caused by such use.

III. Each party agrees to prevent undue water pollution, as far as

practicable, and agrees to ensure the treatment of any industrial waste

or sewage, where necessary, in such a way as not materially to affect

those uses.

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5.2.2 Principles of Cooperation between the Parties

The IWT recognises a great interest of the both countries in the maximum development of the Indus Basin, and to that effect, demands for cooperation between the parties. At the request of a party concerned, the both countries may cooperate to undertake some engineering works by mutual agreement. In each case, formal agreements shall be required between the two states (Article VII, 1). Article VII (2) further stated that in case, either party has a plan to construct an engineering work on any river which, in its judgment, would adversely affect the interests of other party, it shall inform the party concerned and shall supply data relevant to the work which would enable other party to understand the nature, magnitude and effects of the work.

But if a work would interfere in the waters of a river and in judgment of the planning party, it would not affect other party materially; data relevant to the nature, magnitude and effect of the work would be provided on request of the other party.

Article VI (1) bounds each party to exchange data related to the daily flow and utilisation of the waters on regular basis. It includes (a) daily discharge and gauge data about the rivers’ flow at all observation stations, (b) daily releases from or extractions for reservoirs, (c) daily withdrawals at the heads of all canals operated by the government or any agency thereof, including link canals, (d) daily escapages from all canals, including link canals, and (e) daily deliveries from the link canals. The exchange of data shall be made on monthly basis, but when either party considers such data, as specified above, necessary for the operational purposes, it shall be transmitted daily or as may be requested. Furthermore, if either party demands any data related to operation of a reservoir connected with the rivers, or to hydrology of

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the rivers, or to any provision of the Treaty, it shall be provided by other party

(Article VI, 2).

In addition to the above furnished details, there are certain institutional, procedural and technical provisions which have been designed to solve the problems and to promote cooperation between the parties. For example, the provisions specify that both parties would continue their cooperation for the maintenance of equipments so as not to harm other party. It is also the responsibility of Pakistan to preserve the existing volume of the drainage system, and if any enlargement of the drainage system is demanded by India, Pakistan would fulfil that demand with Indian finance

(Article VII).

5.2.3 Mechanism of Dispute Settlement and Permanent Indus Commission

The principle of “peaceful settlement of disputes” requires settlement of conflicts over the management and apportionment of waters of an international watercourse between or among the co-basin nations by peaceful means, in case nations concerned are failed to reach an agreement by negotiations (UNO, 1992: 9-

23). IWT provides a complex mechanism for dispute resolution through Article IX with Annexures F and G. In first instance, all disputes are examined by the PIC. From onward, two procedures have been suggested depending on the nature of the dispute; the disputes of technical nature, and dispute of serious nature (Salman & Uprety,

2002).

The PIC has been constituted under the Article VIII of the IWT for the establishment of cooperative arrangements to implement provisions of the Treaty. It consists of two Commissioners, one is appointed by India and other by Pakistan. They must be engineers of high-ranks, competent in hydrology and water use. The 147

fundamental objectives of the Commission were to promote cooperation between the parties in the areas of water development, to analyse matters referred to it for its consideration, to settle questions arising about the interpretation and implementation of the Treaty and to arrange visits for inspection. The Commission works as a permanent source of communication between the parties for the implementation of the

Treaty. It meets once in a year alternatively in India and Pakistan and submits its reports to the respective governments prior to 1st of June every year. It also meets on the request of either Commissioner.

As the Commission consists of two Commissioners, the decision on any conflict can only be made by an agreement. They have to agree or disagree on a particular matter because there is no process of voting involved. The Commissioners can be assisted by their advisors in a meeting and there is no limitation on the numbers of advisors required to assist. To perform their functions in a secure environment, each government agreed to accord same privileges and immunities to the Commissioner of the other party as are accorded to the representatives of the

United Nations (Article, VIII).

Article IX with Annexures F and G, provides a dispute settlement mechanism.

The “questions” will be considered by the Permanent Indus Commission’,

“differences” will be settled by the Neutral Expert who is to be a qualified engineer and “disputes” will be settled by the International Court of Arbitration (ICA). The

ICA will comprise of seven members, each party will designate two members, and remaining three members will be selected by parties concerned through an agreement.

In case, they fail to make an agreement, then designated individuals will select them.

The three neutral members are to be respectively a person qualified to be chairman of

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the ICA, a competent engineer and an international lawyer of great repute (see

Appendix to Annexure G). It is also worth noting that the applicable law for the ICA is to be followed within the jurisdiction of the IWT itself. First of all, the case will be examined by the PIC, if Commission cannot resolve it, the case will be sent to the

Neutral Expert for making a decision, and if it again remains unsettled, it will be resolved by the ICA (Article, IX).

On the other side, some feelings of dissatisfaction are also prevailing in the both countries about the role and performance of PIC. As some experts are of the view that IWT has provided a complex mechanism of dispute settlement to the PIC and, in response it played a biased role in settlement of disputes and system of monitoring. The unsettled disputes and debates over the water apportionment of the

Indus River System are witnessed as ineffective role of the Commission (Hakim,

2010: 6-7). It can easily be understood by the emergence of new conflicts after the

Treaty.

5.2.4 Principle of Financial Provision and Indus Basin Development Fund

The IWT established an Indus Basin Development Fund (IBDF) to maintain everlasting peace and future development in the region. Its prime objective was to construct headworks and canals to replace water of the Western Rivers and other sources to the irrigated lands in Pakistan, which were dependent on water supplies from Eastern Rivers till 15th of August 1947. In order to carry out these works, while recognising the fact that Pakistan was not in a position to finance these mega projects, the World Bank played a vital role to establish the IBDF (Salman & Uprety, 2002:

54). Several donors provided financial assistance for the Fund, including Australia,

Canada, Germany, United Kingdom, New Zealand, Pakistan, United States of

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America and the World Bank itself. All these states agreed to provide financial contributions of about 900 million dollars for the development in the IRB. In addition,

India also agreed to contribute a fixed amount of 174 million dollars towards the cost of the works in 10 equal annual instalments on November 1 each year (Gulhati, 1973:

308). United States of America and the World Bank also arranged loans for the development of the IRB. Pakistan also contributed to the Fund (Salman & Uprety,

2002).

Under the Treaty, the replacements works in Pakistan included, approximately

400 miles long eight link canals, two reservoirs, the Mangla and Tarbela on the rivers

Jhelum and Indus respectively, power stations, 2500 tube wells and some other works on Western Rivers and irrigation system (Choudhury, 1968: 166). The Indus settlement also opened the way for the construction of new reservoirs on the rivers

Beas and Sutlej and Rajasthan Canal for the irrigation of new lands in India.

However, it is worth noting that those works in India did not come within the scope of the IBDF (Salman & Uprety, 2002).

The World Bank’s role related to administration of the IRB is really noteworthy. Indeed, it played a very active and constructive role in the resolution of the Indus waters conflicts. Without having any political authority, it played a significant role to bring several nations together with commitments of financial resources. According to Biswas (1992), it was a great third-party encouragement to the dispute settlement successfully. This criterion of dispute resolution suggests that constructive role of a third party can become very important in conflict resolution.

The World Bank also played a vital role as an administrator of the IBDF. It provides reports to the parties involved in the agreement of IBDF twice a year. It

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would notify to the parties concerned, if completion of the project was affected by the unexpected events, non-availability of sufficient funds and Pakistan did not fulfil its obligations. The Bank also reserved the right to suspend all disbursements, in case

Pakistan did not fulfil its obligations. All disputes regarding the IBDF were to be solved by an arbitrator. In case, he failed to settle the dispute, it would be submitted to the UN Secretary General for final decision (Salman & Uprety, 2002).

However, the role of the World Bank is heavily criticized by one quarter of the scholars in Pakistan. They presume that the funds provided by the Bank were not sufficient for the development of the Basin in Pakistan and it indirectly favoured

India. As Malik (2005: 176-77) asserts that the Bank mostly favoured India by granting heavy funds and waters from the Western Rivers. 56 million dollars were provided to India against its demand of 33 million dollars. In contrast, Pakistan received mere 60 million dollars with which it could hardly build its link canals only.

Likewise, India was permitted to build its water infrastructure by using its indigenous expertise, whereas in Pakistan, foreign consultants were appointed to carry out almost all water projects. Consequently, they returned all foreign assistance to the doner states in the form of services, supplies and equipments.

5.3 Implications of the Treaty

The IWT was culminated by the decade-long extensive negotiations and it ended the long standing dispute over the water sharing and management of the Indus

River System, which had been a major bone of contention since partition between

India and Pakistan. The Treaty was highly recognised by the world community as an excellent example of conflict resolution. The most instant outcome of the IWT was that it provided great opportunities to both India and Pakistan for development of the

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water resources of the IRB and resultantly, IRB became economically and politically viable for both states (Gulhati, 1973). Some water experts have also pointed out that in absence of IWT, water dispute would have remained a contentious issue between both riparian nations and the subsequent development have been partially or wholly withheld (Mehta, 1988).

After partition, economies of both India and Pakistan were based on agriculture sector and the Indus River System was plying an important role in the agricultural productivity. Due to rapid growth in papulation and industry, a dire need was felt to cultivate those areas which were still uncultivated. India as an upper riparian state, wanted to irrigate uncultivated areas in Eastern Punjab (Indian Punjab) whereas, Pakistan also needed sufficient water supplies for its expanded agriculture sector.

IWT enabled India to expand her irrigation system by harnessing the waters of the Eastern Rivers. Under the Article III of the IWT, India was given exclusive rights of utilisation to the waters of the Eastern Rivers for any purpose. A major project that

India initiated immediately after the culmination of the Treaty, was her interlinking canal project which interlinked the rivers Ravi, Beas and Sutlej by diverting these rivers. This project not only brought a green revolution by increasing irrigated command area in the Indus Basin states but also made India self-reliant in food production (Jain & Kumar, 2007). India also completed various new projects like

Indra Gandhi Canal, Rajasthan Canal System and Upper Bari Doab Canal. The interlinking project connected Bhakra Nangal, Pong and Harike barrages. The Pong and the Bhakra Nangal dam were constructed on River Sutlej and Harike barrage was

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constructed at the confluence of Beas and Sutlej rivers to supply waters to Ferozpur and Rajasthan feeders (Gulhati, 1973: 357).

The Bhakra Nangal dam was initiated to irrigate about 1.46 million hectares of barren land in the states of Chandigarh, Haryana, Punjab and Rajasthan. It enabled

India to overcome the irrigation deficiencies which led to the rapid agricultural growth in the states of Chandigarh, Haryana, Punjab and Rajasthan. This project added about 6.8 million hectares of irrigated land in the region from 1960 to 1995.

The production of rice and wheat was nearly eight times higher in 1996-97 as compared to the figures of 1960-61, in the Bhakra command area. Moreover, after the

Treaty, a rapid growth rate of irrigated area could also be noticed in the entire Indian part of the IRB which was 55 million hectares in year 2000 as compared to 22 million hectares in 1947 (National Council of Applied Economic Research, 2008: xiii). The

Thein Dam was another important project of India, which was constructed on the

River Ravi with a capacity of 8 MAF to irrigate Rajasthan and Thar deserts. It has converted deserts into the greenery of India running north to south along the border of

Pakistan (Miah et al, 2003: 44).

IWT also permits India to utilise Eastern Rivers to enhance her hydropower potentialities. Indian Government has been working on priority basis to increase her power potential in the IRB for the last few decades. After signing the Treaty in 1960, she has achieved a rapid growth in power potential on Eastern Rivers. It has been estimated that power potential of the Indian side of the Basin is 19988 MW. To increase the power generation, 190 schemes have been identified in the Indian side of the IRB, out of which 35 schemes with production capacity of 3715 MW are operational and 14 projects with generation capacity of 5626 MW are likely to be

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initiated in near future. Remaining 32 projects with 28 percent of the total estimated power potential are in the phase of feasibility studies (Centarl Water Commission of

India, 2014).

By taking advantage of the various sections of the IWT, India has also initiated various hydropower schemes on the Western Rivers (assigned to Pakistan exclusively) in Indian occupied state of Jammu and Kashmir like Salal, Dulhasti, Uri I and II, Baglihar, Kishanganga etc. she is also developing irrigation schemes in her territory to enhance the agricultural area through Western Rivers.

On the other side, the IWT granted exclusive rights of water utilisation to

Pakistan from the Western Rivers and permitted it to divert waters of Western Rivers to the lands which were being irrigated from the Eastern Rivers until partition of the

Punjab in 1947. As India and Pakistan ratified the Treaty in January 1961, the IBDF became operative and Pakistan constructed world’s largest irrigation system in its territory to meet the irrigation requirements of the areas which were being irrigated from the Eastern Rivers before partition of the Punjab (Gulhati, 1973: 348). Several mega link canals were constructed for this purpose. The largest canals are the

Chashma-Jhelum, the Haveli, and the Sidhnai-Mailsi-Bahawal. Other major link canals were Rasul-Qadirabad, Qadirabad-Balloki, Balloki-Sulemanki, Sidhnai-Mailsi,

Taunsa-Punjnad and Trimmu-Sidhnai (Tabassum, 2004: 30).

Financial aid arranged by the World Bank also enabled Pakistan to construct multipurpose gigantic projects, which not only ensured its irrigation needs but also requirements of electricity. Mangla Dam on River Jhelum and Terbela Dam on River

Indus were constructed along with several barrages, canals and tube wells. These projects are a source of cheap hydropower which has boosted up its industrial and

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agricultural needs. The Treaty also enabled Pakistan to construct 19 headworks and

43 major canals on the Western Rivers, with aggregate length of 57000 km (Inam et al, 2007: 339). These projects irrigate about 40 million acres of land, provide fresh water to the 180 million peoples and generate 33.07 percent of the aggregate power production (WAPDA, 2014). Gill (2005) stated that irrigation system which lies in the

Pakistani part of the IRB irrigates about 8.88 million hectares of land and it is continuously increasing with significant agricultural production.

In August 1947, when Pakistan emerged as an independent and sovereign state on the map of the world, its total installed power generation capacity was only 60

MW for the population of 31.5 million. In next decade, only 59 MW were added and it increased to 119 MW in 1958. Immediately after the Treaty, power infrastructure got momentum when Mangla and Terbela dams were successfully completed to fulfil the increasing requirements for agriculture and industry with 1000 MW and 3478

MW power generation capacity respectively. Pakistan’s hydel power generation capacity is gradually increasing. At present, 35 large and medium hydel power projects are working in the provinces of Khyber Pakhtunkhwa and Punjab. In addition, 84 small hydropower projects with less than 2 MW installed capacity are operational in Gilgit Baltistan on River Indus and its tributaries (Hydro Resources of

Pakistan, 2011: 1-2).

Subsequent to the Treaty, a tremendous development in water sector of

Pakistan has caused a green revolution and rapid economic growth. Even the Treaty has become the source of employment in various areas of the national economy. For example, the Water and Power Development Authority (WAPDA), which was established by the international technical and financial aid, is a direct outcome of the

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Treaty and the largest civilian employer of the country. The foreign technical support not only became beneficial to Pakistani engineers for irrigation development and construction of dams but also proved helpful for introducing modern water management skills.

Being agrarian economies, rapid increase of irrigated land in India and

Pakistan provided a boost to their economies. Inspite of tense bilateral relations between the two countries, the Treaty has proved useful to remove some basic hurdles in the economic development. The IWT enabled both states to secure their interests freely and it has made IRB as the most developed area in the region. Development of large and gigantic multipurpose projects throughout the Indus Basin enabled both

India and Pakistan to revolutionise their economies.

Inspite of great appreciation of the IWT by the various quarters, it is also criticised by the different parts of the society. It is a common perception in both countries that water apportionment under the IWT is unfair. The Treaty allocates 80 percent of Indus waters to Pakistan whereas, 20 percent to India which is considered unfair and unjustifiable by the most of the Indian water experts. (Iyer, 2005). It is also a view of some Indian experts that India bore a heavy financial burden for the development of water infrastructure in Pakistan but it has not been permitted to utilise the full potentialities of the Western Rivers (Tabassum, 2004: 31). Number of Indian scholars is of the view that India should be given 42.8 percent of the Indus waters on the basis of population, cultivated area and drainage area but under the Treaty

Pakistan received 80 percent and India only 20 percent (Grag, n. d; Chauhan, 1992;

Warikoo, 2005).

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The IWT was neither visualised nor applied to use waters in equitable and reasonable manner. It provided sovereign control of the rivers to both states. De-fecto control of the three Eastern Rivers was given to India, while Pakistan was authorised to exploit the waters of the three Western Rivers, flowing through its territory, except a small quantity of water for Indian use in the Indian held state of Jammu and

Kashmir. IWT provided India more than she was demanding. The Treaty also ignored the principle of prior appropriation which confirms historic usage of water by a region or state. In absence of any international law, the IWT provides a better alternative solution for India. Furthermore, keeping in mind the geographical position of

Pakistan, it must be understood that Pakistan will have to negotiate on its water share provided by the Treaty with two upper riparian states, Afghanistan and China. In absence of any treaty, India would also have to share its waters with Pakistan and it would have deprived her of development which she has made in agriculture sector in

Indian part of the Indus Basin.

In this particular case, population of region, quality or quantity of the irrigated land and future requirements of water was not made basis of the apportionment of the waters of Indus System. Now, to raise these questions is nothing except to play with the psyche of the people, whose political survival depends on the hatred against opponent country.

On the other side, it is a strong perception in Pakistan that Indian portion of the IRB was historically using less than 10 percent of the waters of the Indus System, while IWT provided it 20 percent of the waters. It means that Pakistan was deprived of about 10 percent of its historic rights. Secondly, Pakistan is worried about the

Indian hold in Jammu and Kashmir, which enabled it to cut off water supplies to

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Pakistan from the rivers Chenab and Jhelum, which are the major source of irrigated agriculture in Pakistan. But the Treaty provided some extent of satisfaction and security to Pakistan about its water supplies, as long as the Jammu and Kashmir is in

Indian occupation (Choudhury, 1968: 168). The IWT did not solve all the problems related to the water apportionment and management. It was an arrangement for the future cooperation and development in the region. Environmental and demographic changes, decreasing water availability and increasing water demand require a more positive and judicious approach towards Treaty. China and Afghanistan have also entered into the scenario and are demanding their water rights as upper riparian which can make the situation more complex.

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Fig. 5.1 Indus Basin Irrigation System with IBDF Works

5.4 Implementation of the IWT and Emerging Conflicts

The IWT not only ended the decade- long conflict over the water sharing and management between the both states but also opened the new horizons of development and cooperation in the region. For permanent resolution of the conflict, both parties put aside their conflicting demands and claims and ultimately rivers were divided. The World Bank arranged financial and technical assistances for the development of the Basin. In fact, considerable development in the both states became

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possible due to this division of the rivers. Large scale development works were completed without any interference and hurdle. But now, water disputes are again emerging with new prospective due to the rapid growth of population and increasing demands of water in the both countries. The Treaty which was culminated after an intensive hard work of about a decade-long period is now in the clutches and controversies due to various challenges. This section evaluates existing conflicts over water sharing and management between the two states.

Article III (2) (d) of IWT allows India to use waters of the Western Rivers for domestic, non- consumptive and agricultural purposes and also for hydel power generation through run-of-the river schemes (Indus Basin Water Treaty, 1960, Article

III (2)). On the other side, Treaty also binds India that such utilisation should never cause any injury or damage to lower riparian, Pakistan.

Part 3 of the Annexure D of the Treaty provides various provisions about the generation of hydel power on the Western Rivers in India. It defines that India shall construct run-of-the-river projects that generate power without live storage as an integral part of the plant except for pondage and surcharge storage2. In the operating pool3, maximum allowed pondage4 is twice as much as to the pondage needed for firm power5.

India has planned several hydel projects on the Western Rivers which Pakistan has opposed on the ground that Indian projects do not meet the required technicalities and criteria laid down in the Treaty. As Iqbal (2010) stated that the Treaty provides limited water rights to India over the Western Rivers but she is clearly surpassing its due share by violating the Treaty.

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The first conflict after the signing of Treaty aroused when India started construction of the 690 MW Salal Hydropower Project on the Chenab River in 1970.

It is located about 45 miles upstream of Marala Headworks on the River Chenab at

Reasi in district Udhampur in Jammu. Six low level outlets with 49 feet high spillway gates were included in the original design of the project. Pakistan raised two main objections; first was about design of the project and the second on its storage capacity.

The issue was formally taken up by Aziz Ahmad, the then Pakistan’s Minister for

Foreign Affairs, in 1975 during his visit to New Delhi and India agreed to provide information demanded by Pakistan that bridged the gap of various aspects of the project but some basic issues still could not be resolved. Ultimately, Pakistan decided to request the World Bank for the appointment of Neutral Expert but India tried to solve the problem by bilateral means rather than by involving any third party. So, after prolonged deliberations at commissioners’ level and later on at governments’ level, India agreed to make some alterations in design and storage capacity of the reservoir by lowering height of spillway gates from 40 feet 30 feet and issue was finally resolved through an agreement on April 14, 1978.

Salal Dam Project was not the last Indian project on the Western Rivers in the series. There are several other controversial projects, such as Baglihar Dam, Bursar,

Chutak, Dumkhar, Kishanganga, Nemo-Bazgo, Ratle and Tulbul Navigation Project etc., which are being constructed or completed by India on Western Rivers.

5.4.1 Wullar Barrage Dispute

The Wullar Barrage Project (Tulbul Navigation Project) is located on River

Jhelum, 25 km north of Srinagar, near Sopor, in the Baramula district of the Indian held Jammu and Kashmir. India claims that It was proposed to be constructed at the

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mouth of the Wullar lake to increase river’s flow in lean (Winter) season so that it can be made navigable. It was planned in 1980 and its construction started in 1984 with

0.3 MAF proposed storage capacity and 960 MW power generation capacity (Mallik,

2006). As per the provisions of the Treaty, India is under obligation to provide specific information about the design of a plant at least six months before its construction which have been given in the Appendix II of Annexure D (Indus Waters

Treaty, Annexure D, paragraph 9). But India did not inform Pakistan about its intentions. As Saddiqui (2010) claims that Pakistan learnt in February 1985 through

Indian Newspapers in which a tender notice was published regarding the construction of a barrage near Sopore, 25 Km from Srinagar. The project was named as Tulbul

Navigation Project. Pakistan immediately demanded details about the specifications of the project. Some details were provided by India one year later in 1986. Pakistan was informed that the barrage would be 439 feet long with 40 feet wide navigation lock, a gated weir and undersulices. Its maximum discharge capacity would be 50,000 cusecs and would enable pond level in the lake be raised and maintained at elevation of 5,178 feet.

Pakistan objected on the ground that project is clear violation of the Article I

(15)[b]6 of the IWT which binds both countries not to create any man-made obstruction that may reduce daily flow of the rivers. Pakistan further claimed that

Article III (4)7 specially barred India to construct any reservoir or to construct any storage works on the Western Rivers. While sub paragraph (h)8 of Annexure E (8) of the Treaty allowed India to construct ‘incidental storage works’ but the storage capacity should not be surpassed to 10,000 acre feet. But the storage capacity of

Wullar Barrage is 0.3 MAF which is thirty times more than allowed capacity. Some other objections related to the project are: 162

 The operation of Upper Chenab, Upper Jhelum, Lower Bari Doab Canals

(Tripple Canal Project) and Mangla Dam would be adversely affected;

 India would be enabled by the construction of the Wullar Barrage to

control entire flow of the Jhelum river in dry seasons, particularly in

winters;

 It may create some security threats for the sovereignty of Pakistan.

On the other side, India claimed that the storage capacity of the project would neither surpass the allowed capacity under the Treaty nor will cause any reduction in the daily flow of the river. Its primary objective was to make river navigable during the dry months (winter season) from Baramulla to Srinagar and it is not violation of the Treaty. India also claimed that actually, the project would be proved more beneficial for lower riparian Pakistan because it will increase efficiency of irrigation system in Pakistan during the dry season and will improve the capacity of power generation at Mangla.

Under Article IX (1) of the IWT, Pakistan took Wullar Barrage dispute at forum of the PIC in 1986 for its settlement. But inspite of several meetings,

Commission could not resolve the issue. Resultantly, India stopped construction work in September, 1987. On Indian request, negotiations again started between the two countries at Secretary level and about thirteen rounds of talks had been held upto 2008 but no result can be achieved. Chandran (2009) claims that in 1990, both parties came very close to sign a separate agreement but differences could not be settled due to the apprehensions of Pakistan.

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The current position is that the construction work is suspended but India still wants to restart the construction of project. The dispute is now the part of composite dialogue between India and Pakistan (Saddiqui, 2010).

5.4.2 Baglihar Hydropower Project

Baglihar hydropower project is located in tehsil Ramban of Doda district,

Indian held state of Jammu and Kashmir, about 147 Km upstream of the Marala

Headworks in Pakistan. It is a run-of-the river project and has been operating since

2008. It was envisaged in 1992, approved by the Indian Government in 1996 and construction work started in 1999. IWT permits India to construct hydropower projects on the Western Rivers, in accordance with the criteria laid down in the Treaty which has been provided in paragraph 8 of Annexure D to the Treaty.

In 1999, Baglihar dispute emerged when Pakistan raised objections regarding the design of the project as it is permitted under the Article IX (1)9. These objections were related to the level of pond in the operating pool behind the dam, location of power intake, orifice type gated spillways, under-sluices and height of the gates.

Pakistan considered it as clear violation of the Treaty. She claimed that its gated structure would deprive of her 7000 to 8000 cusecs of water per day. Furthermore, the project would enable India to manipulate water flow in any critical situation (Abbasi,

2012).

Pakistan strongly insisted that construction work on site should be stopped but

India rejected that demand and continued construction work. Ultimately, Pakistan sent its “questions” to India about the project by invoking Paragraph 1 of Article IX of the

Treaty as:

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 The project seemed to be capable of raising the water level artificially

beyond the full pondage level specified in the design and it would be

contradictory to the Paragraph 8 (a) of Annexure D;

 37.722 million cubic meters (MCM) pondage level in the operating

pool exceeds more than twice the pondage of water level;

 There was no need of any gated spillway because the project site was

suitable for ungated spillway and it is the violation of Paragraph 8 (e)

of Annexure D.

 Location of the intakes for turbines was not at the highest level as

mentioned in the Paragraph 8 (f) of Annexure D (Husain, 2005).

In response, India rejected all objections and claimed that the Baglihar

Project did not violate the Treaty. It was run-of-the river project and reservoir or pondage was created to meet the fluctuations in the discharge of turbines. It also claimed that daily flow of river will not be disrupted by the Project because water will eventually go to Pakistan. She also stated that project would not be feasible without gates (Siyad, 2005).

The “questions” and “differences” regarding the project meant that one party considered project as violation, while other considered that it was under the parameters of the Treaty. Since the dispute over the project could not be resolved by the PIC, Pakistan requested the World Bank to appoint a Neutral Expert for the resolution of dispute as per provisions of the Treaty. After consulting with the both parties, the Bank appointed Professor Ramond lafitte10 as neutral observer in

May, 2005 (Saddiqui, 2010).

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After his appointment, the Neutral Expert consulted with both parties and

called them to Paris in June 2005 for briefings. He arranged five meetings with

the parties concerned and obtained written and oral arguments. He also visited the

site along with both parties. Ultimately, on 12th of February 2007, he gave his

final determination in which he recommended some changes in the design of the

plant:

 He found Indian calculations on free board (wall above the water

level) inaccurate. He determined that crest elevation should be set at

lowest level and he directed India to reduce the free board from 4.5

meters to 3 meters, which was a reduction of 33 percent.

 He determined that location of intake stipulated by India was not at

the highest level as required by the Treaty. He decided that instead of

locating the intakes at the elevation of 818 meters, it must be located

at the elevation of 821 meters. In other words, the power intake was

raised 3 meters.

 He also determined that Indian calculations about the pondage were

not inconformity with the provisions of the Treaty. He directed India

to reduce the pondage from 37.722 MCM to 32.56 MCM (Saddiqui,

2010).

However, the Neutral Expert rejected Pakistan’s objection regarding the gated spillway. Relying on the state-of-the-art international practices, he stated that spillway gates were necessary for sediment control and evacuation of the design flood. The

Neutral Expert did not consider the project a “dispute” but called it as “differences”.

He directed India to make minor changes in the design of the project but Pakistan was

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not satisfied with the decision as he did not give much weightage to Pakistan’s objections. Pakistan’s point of view was that he should have gone strictly by the IWT as other practices were irrelevant (Bakshi & Trivedi, 2011).

It is noteworthy that Neutral Expert set a precedent for the interpretation of the

Treaty in future. The decision on Baglihar dispute was based on the Vienna

Convention on the Laws of Treaties (1969) and the Expert referred to the latest bulletin of the International Commission on Large Dams (ICOLD) rules of large dams and the state-of-the-art practices (Abbasi, 2012).

The dispute was solved by the Neutral Expert but the relations between the parties again became hostile when water was filled by India in the dam. Keeping aside the relevant provisions of the Treaty (Annexure E (18) [c])11, India started filling

Baglihar reservoir, which resulted reduction of water of the Chenab River in the months of August and September (2008) to 22,000 cusecs as against 55,000 cusecs as per the Treaty. Pakistan considered it a grave violation of the Treaty. The Indian action caused severe damage to the crops in the downstream areas of the Chenab

(Akhtar, 2010) but India rejected that claim and replied that the filling was done at proper time as stipulated in the Treaty (Iyer, 2005).

Pakistan claimed that as much as 0.2 MAF of water has been withheld by

India during the filling period and demanded compensation. India rejected Pakistan’s claim and refused to pay any compensation. Therefore, after a lot of discussions and negotiations, dispute over the filling of the reservoir was settled in 2010 in a meeting of PIC in spirit of goodwill and cooperation.

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5.4.3 Controversy over the Kishanganga Hydropower Project

The Kishanganga River is an important tributary of the River Jhelum, which originates in Indian Occupied Jammu and Kashmir. It is known as River Neelum in

Pakistan. It becomes the part of River Jhelum near Muzaffarabad, the capital city of

Azad Jammu and Kashmir (the Part of Jammu and Kashmir administered by

Pakistan). In 1994, India envisaged a hydropower project on the Kishanganga

(Neelum) River about 160 km upstream of Muzaffarabad. The project proposed diversion of the waters of the Kishanganga (Neelum) River through a 22 km long tunnel; for the generation of 330 MW hydel power through a plant near Bonar

Madumati Nala, which is also a tributary of the River Jhelum and to return diverted water to the Jhelum River through Wullar Lake (Wani & Moorthy, 2014). India is allowed under the Treaty to construct run-of-the-river projects on Western Rivers, subject to the criteria laid down in part 3 of Annexure D (Indus Waters Treaty, Article

III (2) [d]).

Annexure D Paragraph 15 (iii)12 permits India, if it is necessary, to transfer water from one tributary to other but it is subjected to the existing hydropower or agricultural use of Pakistan. Paragraph 1013 of Annexure E, specially prevent India to construct any works on a tributary of the River Jhelum which would cause some adverse effects to the existing hydropower or agricultural uses of Pakistan on that tributary.

Here the question can be raised that how the ‘existing uses’ would be identified. Does it mean the uses when the Treaty was signed or the uses at the time when a new project would be initiated? For Pakistan, it means the uses at the time when a new project would be started but for India, it means the uses when the Treaty

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was signed. Each country is interpreting the Treaty as it suits its own interests.

Pakistan was officially informed by India about the construction of project in 1992 and it raised following three objections:

 The diversion of water from one tributary to other is not permitted by the

provisions of the Treaty and it is necessary to return the drawn water into

the same tributary;

 The existing uses of Pakistan has been protected by the Treaty but due to

the Indian project, Pakistan will be deprived of 27 percent of the natural

flow of river and it will inflict damage to its existing 133,000 hectares of

irrigation in Neelum Valley. Pakistan also claimed that Kishanganga

Project will adversely affect its 969 MW Neelum-Jhelum hydroelectric

project which is under construction.

 Design of the project does not meet the criterion provided in the Treaty

(Khan, 2005).

India replied that existing agricultural and hydropower uses of Pakistan would be protected and water may be diverted to any other tributary, if necessary, but only to the extent that the existing agricultural or hydropower use by Pakistan would not be adversely affected. India claimed that inter-tributary diversion in Jhelum Basin is permitted under the Treaty (Verghese, 2005).

The Kishanganga project became a hot issue of discussion at various levels.

The PIC met several times to settle the issue but due to conflicting perspectives on and interpretation of text of the Treaty, conflict could not be resolved. In 2007, India started construction of the project and Pakistan further objected that:

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 Kishanganga project would adversely affect the Neelum-Jhelum

Hydroelectric scheme which was started by Pakistan in 1988;

 The diversion of waters of the River Kishanganga to the main Jhelum

would badly affect areas of Neelum Valley, downstream of the project in

Pakistan. Pakistan further claimed the project does not fulfil the design

criteria provided in paragraph 11 (a)14, (c)15, (e)16, (f)17 and (g)18 of

Annexure E;

 The project would reduce total water availability for Pakistan from 154

MAF to about 140 MAF, which will be shortage of 8-9 percent.

 The project would cause 16 percent reduction in power generation capacity

of Neelum-Jhelum hydropower project (Wasi, 2009: 3).

Although, India has always responded on the same ground that water of the

River Neelum will ultimately return to Pakistan and the project would never cause any adverse effect to downstream areas, yet some Indian scholars are of the view that diversion of the Neelum River would create some negative consequences on downstream areas in Pakistan. As Ramaswamy Iyer pointed out that “the diversion of a substantial part of Neelum (Kishanganga) by India will undoubtedly have some impacts downstream. This will affect not merely certain uses of the waters but also the river regime itself and ecological system” (Iyer, 2010). On the other side, there are many others who reject Pakistan’s point of view and called its allegations as the

‘breast beating propaganda’. They claim that water diversion from the River Neelum to the Jhelum main, through a tunnel, would enhance Pakistan’s power generation capacity at Mangla and Neelum-Jhelum sites during the months of winter.

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Pakistan has always rejected all Indian claims and assessments regarding the project and has claimed that Indian project will endanger its Neelum-Jhelum Project.

Having this fear, Pakistan took the case at PIC. As the Commission failed to produce any positive result, Pakistan filed the case to the ICA on May 17, 2010. The ICA, in its interim order of February 2013, allowed India for inter-tributary diversion of water from Neelum (Kishanganga) to Madumati. However, it did not provide any detail about the proportion of diversion and quantity of river flow below the project. The

Court gave its final decision on December 20, 2013 which permitted construction of

Indian Project with a condition of preserving 9 cumecs (cubic meter per second) flow in the river downstream of the project for Pakistan’s hydel power generation and sustainability of the ecosystem (Khan, 2013).

It is very interesting that ICA’s verdict is claimed by the both countries as their victory. Although, its immediate beneficiary was India yet Pakistan is also satisfied because, in her opinion, the verdict has reversed the Baglihar decision and

India cannot exploit water in the Kishanganga reservoir below the dead storage19. In addition, the verdict will also be applicable to the future schemes. On the other end,

India is also satisfied with the ruling of the Court. In short, both of the states are of the view that the verdict is a non-zero-sum game.

There are also some other controversial projects between India and Pakistan, such as Chutak, Dul Hasti, Dumkhar, Nimoo-Bazgo, Ratle, Swalkot and Uri II etc. which have been objected by Pakistan.

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Table 5.1 Details of the Indians Projects on Western Rivers

S. Power Name of the Plant Location Status No Capacity Asthan On Asthan Nullah, A tributary of Neelum Completed 0.75 MW River Baglihar 147 Km upstream of Marala Barrage (Chenab) Completed 450 MW Bandipura On Madmatti Nullah, tributary of River Completed 0.03 MW Jhelum Billing Billinh Nullah, a tributary of Chenab Completed 0.1 MW 1 Chinani On Jammu Tawi River, tributary of Chenab Completed 2 MW Chutak Kargil, on Indus River U/Constru 44 MW Dachhigam On Degwan Nullah, Tributary of Jhelum River Completed 0.04 MW 2 Dul-Hasti (I & II) Near Kishtwar (Chenab) Completed 780 MW Haftal Kargil, on Indus River Commissioned 1 MW 4 Igo-Marcelong Leh, on Indus River Commissioned 3 MW 5 Kargil/ Iqbal Near Kargil on River Indus Commissioned 3.75 MW Karan On Kishar Katta Nullah, A tributary of Jhelum Completed 2 MW Karnah On Quazi Nag Nullah, Tributary of Neelum Completed 2 MW Killer Mohal Nullah, tributary of Chenab Completed 0.3 MW Lower Jhelum 8 miles downstream of Baramula on Jhelum Completed 105 MW Matchil On Dandi Nullah, a tributary of Neelum River Completed 0.35 MW Marpachoo Kargil, on Indus River Completed 0.75 MW Nimoo-Bazgo Leh, on Indus River U/Constru 45 MW Pahalgam Confluence of Lidder East and West, Jhelum Completed 4.5 MW Parnai On Suran River, a tributary of River Poonch Completed 37.5 MW Poonch On Betar Nullah, a tributary of the Jhelum Completed 0.16 MW Rajouri Darhalli Nullah, a sub-tributary of Chenab Completed 3 MW 6 Thirot Thirot Nullah, a sub-tributary of Chenab Completed 4.5 MW Sambal Near Sumbal Village on Indus River Completed 22 MW Sanjak Kargil, on Indus River U/Constru 1.25 MW 7 Shansha Shansha Nullah, a tributary of Chenab Completed 0.2 MW 8 Salal (Phase I & II) 45 miles upstream of Marala Barrage (Chenab) Completed 690 MW 9 Sissu Near Sissue, a tributary of Chenab Completed 0.10 MW Stakna Leh on Indus River Completed 3.24 MW Sumoor, Hundar Near Kargil on Indus River Completed 0.8 MW 10 Upper Sind-II On Wangat Nullah, a tributary of River Sind Completed 125MW Uri- I At Uri about 16 miles D/S Baramula, Jhelum Completed 480 MW Source: Office of the Indus Water Commissioner, Lahore

Conflicts over the aforementioned projects can deteriorate political relations between the two nations in coming years. After signing of IWT in 1960, about 20 percent disputes emerged due to the water allocation and 80 percent due to the water control, as shown in the figure 5.1. At the same time, the table provided in Annexure

H highlights the nature, scope and intensity of conflicts related to waters of the Indus

System and engagement of both states in various types of water related disputes.

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Fig. 5.2 Nature of Water Disputes in Post-Treaty Period

Nature of Water Disputes after the Treaty

Water Allocation Water Control

Above figure highlights the nature of disputes over the waters of international rivers since signing of the Treaty between India and Pakistan. Maximum (80 percent) conflicts emerged over the water control because of the Indian intention to build various projects on Western Rivers, available for unrestricted use of Pakistan (Article

III, Indus Basin Water Treaty, 1960). Pakistan thinks that India is trying to control waters of the Western Rivers through these so called run-of-the-river projects and in future, these projects can be used by India as a bargaining tool to resolve other bilateral issues with Pakistan, including the core issue of Jammu and Kashmir. To what extent Pakistan’s concerns are reasonable but two parties have been indulged in a forceful competition over water.

Consequences of the continuing conflicts have not only widened the scope of difficulties for future development of the IRB but also have made already worse Indo-

Pak relations, more complicated. Inspite of three wars20, the IWT has been surviving for the last 66 years. It has served both the nations but due to the rapid economic development and increasing energy demand, a new set of challenges is emerging. The

Indus River system is also facing a heavy pressure due to the increasing demand of

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water supply. Over exploitation of water is not allowed under the Treaty. Under this critical situation, the PIC is also under heavy pressure by the respective states and could not settle certain disputes at its level.

5.5 Causes of Conflicts

Firstly, most of the disputes over the Indian hydroelectric projects on Western

Rivers have emerged due to conflicting interpretations of the different articles of the

IWT. For example, Article III (4)21 barred India not to create any reservoir to store waters of the Western Rivers, except some limited uses which have been mentioned in

Annexures D and E of the IWT. It also specifies technical criteria regarding the engineering structure of projects, such as crest level of gates, location of intakes, live storage, dead storage, water level in operating pool, pondage level and so on. Pakistan demands full conformance with the criteria provided in IWT while this is not a case in

Indian opinion.

Secondly, The IWT is considered highly technical in nature. Its technicalities provide opportunities for differences because it cannot be easily understood by the engineers and even by the Indus Water Commissioners (Iyer, 2007: 70).

Thirdly, some water experts opine that the Treaty carried out a surgery of the

Indus System by dividing it into eastern and western groups of rivers. Development of the Basin requires high level of cooperation between the both states but the division of

Indus River System has minimised the level of goodwill and cooperation.

Fourthly, the Treaty does not cover new emerging issues such as climate change and environmental degradation.

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Pakistan, being a lower riparian, considers Indian projects on the Western

River as a great threat to its survival, as combined storage capacity can destroy land and property at any time in Pakistan. Secondly, it is also a fear in Pakistani circles that these projects will enable India to stop or reduce rivers’ flows at critical times, especially during the seasons when crops are sown or matured. As Brisco (2010) asserts that cumulative storage capacity of a series of Indian projects will enable it to affect grave injury on Pakistan. While, Indian concern is to generate maximum hydel power to meet the energy requirements of its rapid growth in agricultural and industrial sectors. India claims that she has been facing a problem of energy shortage since 1947 and power projects on the Western Rivers are very crucial to meet the gap between supply and demand. During 2003 to 2011, India’s average peak power deficit was 12.8 percent which has been reduced to 4 percent in 2014 (India's Demand and

Supply Situation, 2015). IWT allows India to construct run-of-the-river hydropower projects on the Western Rivers but it does not permit it to construct on the cost of

Pakistan. In response to the apprehensions of Pakistan, India claims that Pakistan’s concerns are baseless as it cannot flood it without flooding itself.

5.6 Water Conflict and Indo-Pak Relations

Although India and Pakistan have same political legacy, cultural roots and economic systems yet they have been in a situation of unrest and enmity over several uncompromised issues, especially over waters of the Indus System. Technically, water is not a core issue between the two nations, differences over the utilisation of water has become the core issue. It has become a central point in the bilateral relationship of the two countries.

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In 1960, governments of India and Pakistan agreed to sign the IWT but the public opinion in both countries was totally against the Treaty. Majority of the people of Pakistan criticised Pakistani authorities for the loss of three Eastern Rivers to India, although Pakistan was provided a large amount of funds to compensate its losses but these losses created heavy ecological and financial consequences for it. (Malik, 2005)

In 1964, opposition parties severely criticised President Ayub Khan and blamed that he has sold the historic rights of Pakistan on Eastern Rivers (Choudhury, 1968) while

Indian public criticised its government because of losing three Western Rivers. They claimed that under the provisions of the IWT, India is not in a position to utilise full power potentialities of the Western Rivers (Verghese, 2005).

Various circles of the civil society from the both countries, like water experts, academicians, agricultural groups and media, opposed the Treaty. Even, opposition parties of the both countries called it unfair and suspicious. This situation, ultimately, politicised the water issue within the both states and created a heavy pressure on the respective governments.

Changing tone of the political relations between India and Pakistan can easily be understood by revisiting the disputes over the Indian hydropower projects which are being constructed on Western Rivers. Pakistan severely criticises these projects and considers that it is a violation of the norms of the Treaty. During the last six and a half decades, the IWT has survived various threats related to the political relations of the two countries but in recent years it has come under strain due to Indian hydropower projects which are being constructed on the Western Rivers, including the Wullar Barrage, Baglihar, Salal, the Kishanganga and the Nemo-Bazgo (Iyer,

2005).

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Indian water experts have been expressing great frustration over the lengthy procedure of the approval of projects since the ratification of the IWT. Pakistan has questioned almost 27 projects on the Western Rivers. Indian experts and media consider it tact of unnecessary delay which is used by Pakistan at each and every project that India starts. They argue that appointment of neutral expert must be the last option, not the recourse for each and every project (Chandran, 2009).

On the other side, Pakistan argues that Indian position on the power projects is worsening the already tense relations between the two countries. In addition, due to the political mobilisation on the Indian projects, anti-Indian sentiments have emerged in the various parts of the society in Pakistan. Some security analysts from Pakistan also argue that Indian projects on Western Rivers will enable it to flood Pakistan at any critical situation and that floods can severely damage Pakistan’s defence.

Furthermore, Pakistan also has some economic and defensive concern regarding the

Indian projects, especially on the Western Rivers.

In 2008, Baglihar reservoir was filled by India and subsequently downstream flow of water was reduced, the project became the core issue among the political circles of the both countries. There are also certain political and strategic concerns in

Pakistani society regarding the Wullar Barrage, as it would enhance the ability of

Indian forces to enter Pakistan by closing gates of the Barrage during the warlike times (Akhtar, 2010).

In 1960, President Ayub Khan hopefully expressed that water dispute resolution would lead to the settlement of Kashmir issue (Khan, 1967: 113). Same views were also expressed by the then Indian Prime Minister Jawaharlal Nehru in the

Indian Parliament while he was coming to Pakistan to sign the IWT, that India is

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ready to resolve all disputes with Pakistan, including the issue of Jammu and Kashmir

(Choudhury, 1968: 167) but unfortunately they could not avoid war. In September

1965, Just after the five years of the Treaty, India and Pakistan fought a war over

Jammu and Kashmir. Until and unless the dispute over the Jammu and Kashmir is resolved, both states will not be in a position to develop friendly relationship in future.

If the two nations make an agreement to resolve the Kashmir dispute, water conflicts will automatically be settled, because both issues are interlinked with each other.

5.7 Challenges to the IWT

Although, the IWT is viewed as one of the most successful treaty yet some contemporary issues have become a serious threat to its survival. Firstly, the issue of climate change with decreasing quantity of water is not only posing a threat to the development of the Indus Basin but also originating new zones of conflicts between

India and Pakistan. In India, Per capita per year availability of fresh water has declined from 5000 cubic meters in 1950 to 1130 cubic metre in 2013 (FAO, 2013), and it has also been estimated that it will further decline to below 1000 cubic meter by

2025. In Pakistan, situation is also very alarming. In 1951, per capita per year availability of fresh water was 5000 cubic meter which has been declined to 1066 cubic meter in 2015, and it is expected to be reduced 858 cubic meter by 2025 (APP,

2015). A comparative study of the availability of water and its increasing demand in

India and Pakistan shows that both countries are rapidly approaching to the status of water scarcity. Due to this critical situation, some socio-economic tensions are fastly emerging within the two states. If this situation is not handled carefully, it may cause a political crisis between the two states. As a working group of UNO warned in

March 2009 that decreasing quantity of water in Indus Basin may cause a serious

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political conflict between India and Pakistan, (Akhtar, 2010) and IWT will also face great pressure in coming years.

Water scarcity is caused by the climatic variability and decreasing quantity of water. Climate change has not only changed the rainfall pattern but it has also become a cause of melting of glaciers at an accelerating rate and consequently, various regions are facing either drought situation or heavy rains. In South Asian region, water stress is also caused by the uncertain climatic changes, particularly in the Indus Basin. The

Indus Basin depends heavily upon the glaciers of the Western Highlands (the

Karakoram, the Great Himalayas and the Hindukush mountain ranges), which act as a reservoir of the fresh water. They capture rain and snow, hold water and release it into the rivers which feed Indus Plains. Various studies show that climate change is already affecting Himalayan glaciers and it is estimated that glaciers will continue to retreat for the next fifty years. As a result, river flow will increase which would exacerbate already serious problem of flooding. But after the estimated period of fifty years, when the glacial reservoir will be empty, there will be dramatic decrease of about 30 to 40 percent in river flow which would cause drought like situation in the

Indus Basin (Brisco & Qamar, 2005).

It is very important to note that the mechanism of IWT does not take into account the impacts of climate change. The Treaty simply binds both India and

Pakistan to ensure river flow without any intentional interference. The existing international water laws ensure the conservation, management and protection of the international rivers but the IWT does not handle the problem of water scarcity. The impact of climate change on the overall availability of water is a matter of great concern for both India and Pakistan and it is very important for them to work together

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in this regard. If these emerging environmental problems are not tackled carefully through technical and institutional mechanism, they can more aggravate the already tense relations between the two neighbouring states and may build more pressure for the Treaty.

Secondly, a difference over the utilisation of waters of the Indus System is also a matter of serious concern. Under the IWT, India is allowed to construct run-of- the-river projects on the Western Rivers to generate hydel power. Therefore, India has started to construct several projects, such as Salal and Baglihar project on the River

Chenab, Kishanganga and Wullar Barrage projects on the River Jhelum and Nemo- bazgo on the main Indus. Pakistan claims that these projects are not only violation of the provisions of the Treaty but also a permanent threat to its economic security and sovereignty. India may use stored water to flood key Pakistani terrains or stop it during the sowing seasons. Whereas, India maintains that all these projects are under the jurisdiction of the Treaty. However, differences over the interpretation of various provisions of the Treaty and technicalities provided in the Treaty are very critical and it has aggravated the already tense political and military relations between the two states.

Thirdly, the intentions of Afghanistan and China to use the waters of the River

Kabul and Indus may create some problems for IWT and hamper the relations of India and Pakistan. The Kabul River, an important tributary of the Indus River, is common river of Afghanistan and Pakistan. It contributes almost 15 percent to the surface water resources of Pakistan. Now, Afghanistan is trying to utilise the River Kabul and it has planned to construct dams on it and its tributaries. If Afghanistan constructs its planned projects across the Kabul Basin; Pakistan will lose a good quantity of fresh

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water. As a result, it will face acute water shortage for its agriculture and hydel power generation, especially in the province of KPK and there will be no water for the proposed Kalabagh Dam. India is providing technical and financial support to

Afghanistan for the development of the Kabul River. Indian support may cause tense relationship among the concerned states, particularly between India and Pakistan and it may pose a serious threat to the IWT.

On the other side, another upper riparian state, China is also intended to start construction of water projects in Tibetan Plateau. It has initiated a dam at Demchok on the River Indus with 11 MWs power generation capacity. The said project has capacity to store considerable quantity of water of the Indus River (Senge, 2011).

Obviously, China’s projects over the Indus River will reduce flow of the river and it will adversely affect power generation and irrigation facilities in the lower parts of the

Indus Basin. Reduction of the river flow is matter of serious concern because it will not only intensify the already tense political relations between India and Pakistan but also become a challenge to the Treaty (Senge, 2011).

5.8 Relevance of IWT to International Water Law

There are about 276 fresh water international lake and river basins in the world,22 which cover almost half of the land surface and are shared by two or more than two countries (United Nations Watercourses Convention Enters Into Force,

2014). Due to the differences over the uses of shared waters and increasing demand of fresh water, international river basins have become a most critical and complex issue in the various regions of the world. After the World War I, various states started activities to utilise shared waters other than navigational purposes. Consequently, disputes over the shared waters emerged among the riparian states. At that stage, a

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dire need of international law was felt to address the uses of international rivers other than navigation. As a result, some international institutions and scholarly organisations started activities to codify international law related to the non- navigational uses of the international rivers. The IIL, ILA and ILC have played a vital role in the codification and development of International Water Law through adopting a number of rules and resolutions. The International Court of Justice (ICJ) is also regarded as an extensive body of sorts. The Helsinki Rules (1966) and the Berlin

Rules (2004) are most important contributions of the ILA. It is worth mentioning that

Helsinki Rules have been incorporated in UNCIW, which was adopted by the UNGA on May 21, 1997 and came into force in 2014, after the ratification of 35 member states.

Helsinki Rules (1966) allows all riparian nations to utilise the waters of a transboundary river in an equitable and reasonable way within its territorial jurisdiction. The UNCIW also ensures conservation, development, management, protection and utilisation of a transboundary river, which is largely based on the

Helsinki Rules of ILA.

The Berlin Rules (2004) of ILA is a more detailed and comprehensive document, consists of 73 articles and 14 parts. It addresses issues of management related to the both national and international watercourses in a comprehensive, unified and integrated way. The Berlin Rules differs from Helsinki Rules (1966) and UNCIW

(1997) in a sense that both of the former documents deal with only the management of international watercourses but the scope of the Berlin Rules was extended to the national and international watercourses. Both Helsinki Rules and UNCIW develop the right to reasonable and equitable share of each riparian state while Berlin Rules

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establishes the obligation of each riparian nation to manage a common watercourse in a reasonable and equitable way (Salman, 2007).

Besides the contributions of IIL, ILA and ILC, the basin communities have also contributed very well to manage and develop international river basins. On the basis of common interests and mutual understandings, these communities signed various agreements and treaties which are considered as an important source of international water law on the uses of international watercourses. Among these treaties, the IWT is the most significant document which India and Pakistan signed on

19th of September 1960 in Karachi with the remarkable efforts of the World Bank.

Being a signatory of the IWT, responsibilities of the Bank have also been specified in

Article V23, X24 and Annexure F, G and H25.

The IWT is the most comprehensive and complex document. Its origin, its integration to the customary international law and its mechanism of water allocation make it a unique instrument. In addition, various legal processes have been involved by the Treaty and various rules and principles of water sharing and management have been adopted in its mechanism. Different conventions, treaties and water laws have been guided by its successful mechanism. This chapter analyses the relationship of international water laws, conventions and treaties with IWT.

To establish friendly relationship between India and Pakistan, without addressing the Indus waters dispute, was not an easy task for both riparian countries.

However, IWT made it possible for both countries to develop their part of the IRB.

Indeed, the Treaty proved to be a most successful instance of peace in the region and resultantly, it has opened the ways of development in the both riparian states. Both states agreed in the text of the Treaty that “nothing contained in this treaty shall be

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construed by the parties as in any way establishing a general principle of law or any precedent” (Indus Waters Treaty, Article XI (2), 1960). IWT was adopted by the ILA as context of its Helsinki Rules (1966) on the utilisation of water of international watercourses (ILA, 1966). The Treaty was signed about six years before the Helsinki

Rules, so the Helsinki Rules could have little effect on the course of negotiations leading to the IWT or on the terms and conditions of agreement (Gulhati, 1973: 329).

IRB is spreading over the territories of four countries.26 Unlike the UNCIW

(1997) and Helsinki Rules (1966), the IWT does not take into account the concept of

“drainage Basin” which considered the entire Indus Basin as a unit. During the process of negotiations, the World Bank presented the river basin approach and idea of integrated water management. The rivers of the Indus System were divided into eastern and western groups between India and Pakistan.

The principle of “equitable and reasonable utilisation” was adopted in the IWT and indeed, the mechanism provided by the Treaty on the basis of this principle, played a vital role in the development of the Indus Basin and maintenance of peace and security in the region. However, real allocation to India and Pakistan under the

Treaty was not equal. It was 20 and 80 percent respectively. But the allocation of water is equitable on the basis of factors, described in Article 5 of the UNCIW

(Upreti, 2006: 62). Following table shows the relevance of IWT with international water law.

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Table 5.2: Relevance of IWT with internationally accepted Principles of Water Management.

Internationally Indus Waters Treaty Helsinki Rules UN Convention on Agreements/Treaties Accepted (1966) International Principles of Water Watercourses Management (1997) Equitable & Equitable water Articles IV, V, Articles 5, 6,7, 15, Article 2 of SADC Protocol on Shared Watercourse Systems (1995), Articles 7and 9 of Sava Reasonable Uses utilisation i.e. 20:80 VII, X and 16, 17 and19 River Basin Agreement (2002), Articles 4-6 and 26 of Mekong River Agreement (1995) percent on the basis XXIX (4) of population and demand of the both states Not to cause Article IV (2) Articles V, X, XI Articles 7, 10, 12, Trail Smelter and Corfu Channel Cases significant Harm and XXIX (2) 15, 16, 17, 19, 20, 21(2), 22, 26(2), 27, 28(1) and 28(3) Exchange of Articles VI, VII and Articles XXIX Articles 5(2), 8, 9, Mexico-US Treaty (1946), the Montreal Rules of ILA (1982) on water pollution in an Information and VIII (1), XXIX(2) 11, 12, 24(1), 25(1), international drainage basin, Article 6 of the Convention on the Protection and Use of the Cooperation and XXXI 27, 28(3) and 30 Transboundary Watercourses and International Lakes (1992) of Economic Commission for Europe (ECE), Articles 2-5 of the SADC protocol on Shared Watercourse System (1995), Articles 3, 4, 14-21 of Sava River Basin Agreement (2002), Preamble with Articles 1,2, 6, 9, 11, 15, 18, 24, and 30 of Mekong River Basin Agreement (1995). Negotiations, Article IV (10) Articles XXIX Articles 3 (5), 6 (2), Lake Lanoux Arbitration 1957, Articles 2 sub clauses (9)and (10) of SADC Protocol on Shared Consultations and sub clauses (2), 11-19, 24 (1), 26 Watercourse System 1995, Article 22 of Sava River Basin Agreement (2002), Articles 5, 10, Notification (3) and (4), (2), 28, 30 11’ 24 of Mekong River Basin Agreement 1995 and Rio Declaration 1992. XXX, XXXI Peaceful Article IX, Articles XXVI, Paragraph 1, Article Articles 7 of SADC Protocol on Shared Watercourse System 1995, Article 1,22-24 with Annex Settlement of Annexure F and G XXXVII, XXIX, 33. II of Sava River Basin Agreement (2002), Articles 34 and 35 of Mekong River Basin Disputes XXXI, XXXIV Agreement 1995 Source: (Miner, 2009; Rahaman, 2009) 185

Article 5 of the Helsinki Rules (1966) as well as UNCIW (1997) requires taking into account all relevant factors and circumstances while utilising an international watercourse in equitable and reasonable way. These include:

 Geography of basin;

 The population dependent on watercourse in each basin state;

 Social and economic needs of each basin state;

 Effects of uses or use of a watercourse in one riparian state on the other co-

riparian;

 Existing and future uses;

 Conservation, protection, development and economy of water resources of the

watercourse and costs of measures taken to that effect; and

 Availability of alternatives, of comparable value, to a particular planned or

existing use.

IWT (Articles II and III) sets down the apportionment of water between India and Pakistan and makes some type of territorial division which has been adopted and defined by the UNCIW in 1997 (Siyad, 2005). Besides the mechanism of water distribution, the utilisation of waters of the Indus River System was the most laborious task but it was done by dividing the IRB into two parts. Although, the IWT did not take into account the “watercourse” or “drainage basin” concept which considers entire basin as a single unit but it has been incorporated in both Helsinki

Rules (1966) and UNCIW (1997). Rather, the rivers of the Indus System were divided into eastern and western groups with specified consumptive and non-consumptive uses. The concept of consumptive and non-consumptive use is in consistent with Lake

Lanoux decision27 (Petren et.al, 1957). Other treaties in South Asia like Kosi, Gandaki

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and Mahakali between India and Nepal, the Ganges between Bangladesh and India specify water shares of concerned states but the IWT does not support the concept of water sharing from the common watercourse.

It is a moral and legal obligation of every riparian nation in an international river basin to inform about any development in its part of the basin which may cause serious harm to other co-riparian states. The principle of “not to do significant harm”

(sic utere)28 has been derived from the Roman Law which is recognised by the all riparian communities but generally is opposed by the upper riparian countries. In case of IWT, this principle has been accepted by the both India and Pakistan and it has been applied to ensure the water rights of the both states. Article IV (2) of the Treaty binds both states to avoid any material damage to other party and Utton (1975) declared it consistent with Corfu Channel and Trail Smelter cases. As decision of

Trail Smelter case states that International Water Law does not allow any riparian nation to utilise an international stream passing through its boundaries in such a way that would cause serious harm to the territory or properties of other riparian nations, when the case is of serious consequences and have clear evidence (Uperti, 2006: 62).

Trail Smelter arbitration has been widely recognised by the international community and it has been incorporated in various international water and environmental laws and agreements to protect the riparian nations from significant harm and material injury. At present, it is viewed as the part of customary international water law. Keeping in view its positive results, its mechanism was applied in the IWT. Article IV (2)29 of the Treaty binds both India and Pakistan to avoid any material damage and significant harm to the other party by using a water channel.

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Article VI (10)30 of the IWT stated that each party would take possible measures to prevent undue pollution of the rivers and to treat the industrial waste before throwing into the rivers. Afterwards, this article was adopted by the ILA in chapter (3) of the Helsinki Rules (1966) regarding the prevention of river pollution.

Article VI (11)31 of the IWT binds concerned parties to take possible measures to recover and restore timber or other property of an owner, floated or floating down the rivers, subject to appropriate charges being paid by the owners. This article was also incorporated in provisions regarding timber floating and navigation of chapter 5 of the

Helsinki Rules (1966).

It is very important to restore peace and cooperation in a region to achieve the target of development and for this purpose an institutional mechanism is generally established. The IWT has also a complex mechanism of dispute settlement. Initially, all disputes are examined by the Permanent Indus Commission (PIC) which has been established under the Articles VIII, VI and VII of the Treaty. From there onward, two methods are provided in the Treaty: the disputes of purely technical nature are addressed by the neutral expert, and disputes of serious and grave nature that neutral expert cannot examine, are addressed by the ICA.

The PIC is composed of two Commissioners32, one from India and the other from Pakistan. It was established to achieve cooperation between the both countries for the implementation of the Treaty. It is also responsible for the management of the

Indus Basin, sharing of information and exchange of data on regular basis. The PIC has to meet once a year on regular basis, alternatively in India and Pakistan (IWT

1960, Article VIII [5]). The Commission will submit its report on its work for the year ended on 31st March to respective governments before June 1, every year (Indus

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Waters Treaty 1960, Article VIII [8]). The institution of PIC was envisaged by the

International Court of Joint Commission, provided in the boundary water treaty between Canada and United States of America (Siyad, 2005: 80).

The role of PIC is very important in preventing concerned states from indulging into water war. The system of data exchange and future cooperation, provided in the Indus Waters Treaty, was inspired by the various treaties and agreements, such as US-Mexico Treaty of 1946 regarding the uses of the Colorado,

Tijuana and Rio Grande Rivers. These agreements have a great impact in the evolution of norms, especially regarding the process of dispute settlement, which was later incorporated in the IWT (Hedge, 2005: 53-55). Article VI of the IWT (regarding the exchange of data), Article VIII (about the institution of PIC) and Article IX

(providing details about the procedure of dispute settlement) provide precedent for chapter 6 of the Helsinki Rules (1966) of ILA (Miner, 2009). In addition, the principle of data exchange and future cooperation has also been incorporated by the various legal instruments and treaties, such as E. C. E (1992), UNCIW (1997), the Mekong

River Agreement (1995) and the Ganges River Waters Treaty (1996).

Article IX of the IWT describes mechanism of disputes resolution. It states, if any question arises between parties concerned regarding the interpretation or application of IWT, shall be first examined by the PIC and decision will only be made by agreement. There is no procedure of voting involved and the both commissioners have to agree or disagree. If the Commission does not agree on any solution and one of the commissioners opines that matter falls under the scope of 23 areas, provided in part one of the Annexure F33 then, it will be deemed that a difference was arisen and it will be referred to a Neutral Expert for final settlement according to Annexure F, part

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two34 of Treaty. And if the “difference” does not fall within the scope of 23 areas or the Neutral Expert declares a difference as a “dispute,” the both governments will negotiate with the assistance of mediators if they so desire. If the matter remains again unresolved, it will be laid before the International Court of Arbitration35 for final decision (Indus Waters Treaty 1960, Articles IX [1][2][3][4][5]).

Fig 5.3 Process of Arbitration Provided in the Indus Waters Treaty (1960)

Questions Addressed by the Permanent Indus Commission (PIC)

Differeces Addressed by the Neutral Expert

Disputes Settled by the International Court of Arbitration

It is worth noting that any possible arbitration has to remain within the parameters of IWT (Indus Waters Treaty 1960, Annexure G (2)). Most of the international treaties, agreements and conventions have recognised and incorporated the principle of dispute settlement, provided by the IWT e.g. Article XXVII of the

Helsinki Rules (1966) and Article 33 (1) of the UNCIW (1997). It has also been recognised by the important treaties of the modern era; for instance, Articles 34 and

35 of the Mekong River Basin Agreement (1995), Article 7 of the Shared

Watercourse System in South African Community Protocol (1995), and Articles 22 to

24 of the Sava River Basin Agreement 2002.

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5.9 Conclusion

The effectiveness of the IWT is alluded by repetition of the foregoing discussion on its history, nature, implementation and subsequent management procedures. The Treaty possesses various similar provisions to the international law, agreements and treaties, as some of its provisions are incorporated from the previous agreements and some of its provisions have been incorporated in various conventions, treaties and agreements which were formulated after the Treaty. Regarding the implementation, the Treaty survived various ups and downs, even three major wars of

1971, 1965 and 1999. Cooperation between the Indus Commissions of India and

Pakistan is also a result of implementation of the Treaty by the both states. It has worked as a means to prevent water related conflicts.

Many water experts have discussed its merits and demerits. For example, it permits both countries to secure their individual interests and develop their part of the

Basin. Indeed, it has opened the way of progress and development in the Indus Basin but at the same time, it ignores the need of cooperation for joint development of the

Indus Basin. Therefore, there are so many water related issues which remain unresolved.

In September 1960, water dispute between India and Pakistan was resolved through IWT which not only opened the new doors of cooperation and understanding but also opened the ways of development in the both countries. Although, IWT is the most detailed document which involves various technical and political processes yet now a days, it is under great stress due to various challenges.

In recent past, disputes over the water utilisation remained major bone of contention and it has widened the trust gap between the two neighbouring states. Due 191

to the differences over the interpretation of the various provisions of the Treaty and utilisation of water, the IWT has become more controversial document between the two countries. Especially, Indian hydropower projects on Western Rivers like

Baglihar, Kishanganga, Dulhasti, Chutak, Dumkhar, Nimoo-Bazgo, Ratle, Swalkot and Uri II have posed serious challenges to the Treaty and these projects have also increased the possibility of conflicts in future at various levels.

IWT enabled both India and Pakistan to develop iriigation and hydropower infrastructure in their respective parts of the Indus Basin but keeping in view the present circumstances, it seems that the Treaty is not being implemented with heart and soul. In accordance with the Treaty, meaningful steps should be required to resolve the issues related to the water management and utilisation, without considering the emotional and political concerns for the sustainable peace and harmony in the region.

End Notes:

1 - Bashir A. Malik (2005: 150) mentioned different dates of ratification. He claimed that Pakistan ratified the Treaty on 27th December, 1960 and India on 28th December, 1960. 2 - Surcharge Storage means uncontrollable storage occupying space above full pondage level (Indus Basin Water Treaty, Article III (2) (d)[e]). 3 - Operating pools means the storage capacity between dead storage level and full pondage level (Indus Basin Water Treaty, Article III (2) (d)[f]). 4 - Pondage means “Live Storage of only sufficient magnitude to meet fluctuations in the discharge of the turbines arising from variations in the daily and weekly loads of the plant” (Indus Basin Water Treaty, Article III (2) (d)[c]). 5 - Firm Power means the hydro-electric power corresponding to the maximum mean discharge at the site of the plant (Indus Basin Water Treaty, Article III (2) (d)[i]). 6 - Any man-made obstruction to their flow which causes a change in the volume (within the practical range of measurement) of the daily flow of the waters: Provided however that an obstruction which involves only an insignificant and incidental change in the volume of the daily flow, for example, fluctuations due to afflux caused by bridge piers or a temporary by-pass etc., shall not be deemed to be an interference within the waters (Indus Basin Water Treaty, Article III (2) (b)). 7 - Except as provided in Annexures D and E, India shall not store any water of, or construct any storage works on the Western Rivers (Indus Basin Water Treaty, Article III (4)). 8 - Storage incidental to a barrage on the Jhelum main or on the Chenab main not exceeding 10,000 acre feet (Indus Basin Water Treaty, Annexure E (8)[h]). 9 - Any question which arises between the parties concerning the interpretation or application of this Treaty or the existence of any fact which, if established, might constitute a breach of this Treaty shall first be examined by the Commission, which will endeavour to resolve the question by agreement (Indus Basin Water Treaty, Article IX (1)). 192

10 - Raymond Lafitte was a professor at the Swiss Federal Institute of Technology in Lausanne, Chairman of the Committee on Governance of Dam Projects of International Commission on Large Dams (ICOLD), a Member of the Advisory Committee to the President of ICOLD and Member of Dams Safety Committee of ICOLD. He is supporter of large dams. 11 - Annexure E (18) of the IWT reads as: The annual filling of Conservation Storage and the initial filling below the Dead Storage Level, at any site, shall be carried out at such times and in accordance with such rules as may be agreed upon between the Commissioners. In case the Commissioners are unable to reach agreement, India may carry out the filling as follows: (c) if the site is on the Chenab, between the 21st June and 31st August at such rate as not to reduce, on account of this filling, the flow in the Chenab Main above Marala to less than 55,000 cusecs. 12 - “Where a Plant is located on a Tributary of the Jhelum on which Pakistan has any Agricultural use or Hydro-electric use, the water released below the Plant may be delivered, if necessary, into another Tributary but only to the extent that the then existing Agricultural Use or hydro-electric use by Pakistan on the former Tributary would not be adversely affected (Annexure D Paragraph 15 (iii), IWT: 1960). 13 - Annexure E Paragraph 10 reads as “Notwithstanding the provisions of Paragraph 7, any storage work to be constructed on a Tributary of the Jhelum on which Pakistan has any Agricultural Use or hydro-electric use shall be so designed and operated as not to adversely affect the then existing Agricultural Use or hydro-electric use on that Tributary. 14 - The Storage Work shall not be capable of raising artificially the water level in the reservoir higher than the designed Full Reservoir Level except to the extent necessary for Flood Storage. If any, specified in the design. 15 - The volume between the Full Reservoir Level and the Dead Storage Level of any reservoir shall not exceed the Conservation Storage Capacity specified in the design (Indus Water Treaty, 1960). 16 - Outlets or other works of sufficient capacity shall be provided to deliver into the river downstream the flow of the river received upstream of the Storage Work, except during freshets or floods. These outlets or works shall be located at the highest level consistent with sound and economical design and with satisfactory operation of the Storage Work (Indus Water Treaty, 1960). 17 - Any outlets below the dead Storage Level necessary for sediment control or any other technical purpose shall be of the minimum size, and located at the highest level, consistent with sound and economical design and with satisfactory operation of the Storage Work (Indus Water Treaty, 1960). 18 - If a power plant is incorporated in the Storage Work, the intakes for the turbines shall be located at the highest level consistent with satisfactory and economical construction and operation of the plant and with customary and accepted practice of design for the designated range of the plant’s operation (Indus Basin Water Treaty Draft, 1960). 19 - Dead Storage level means that the portion of the Reservoir Capacity which is not used for operational purposes and ‘Dead Storage’ means the corresponding volume of water. 20 - India and Pakistan fought three wars (in 1965, 1971 and 1999) during the last six decades. 21 - Article III (4) of the IWT states: except as provided in Annexure D and E, India shall not store any water of, or construct any storage works on, the Western Rivers. 22 - The United Nations reported in 1977 that there were 214 transboundary river basins worldwide. See Register of the International Drainage Basins, Report of the Secretary General of the United Nations (UN DOC, E/C 7/71, March 11, 1977). The same figure again provided in another UN document published in 1978. See United Nations, Register of International Rivers, drafted by the Center for Natural Resources, Energy and Transport of the Department of Economics and Social Affairs. However, due to the certain changes in the international boundaries and emergence of new states, the numbers of the international river basins has also increased. As Gleick (2000) estimated 261 international river basins (p. 219). Some other documents of United Nations claim that there are 263 international rivers basins. See United Nations, International Decade for Action ‘Water for Life’ 2005- 2015 (www.un.org/waterforlifedecade/transboudary_waters.shtml). 23 - Indus Waters Treaty 1960, Article V, Financial Provisions. 24 - Indus Waters Treaty 1960, Article X, Emergency Provisions. 25 - Annexure F contains provisions regarding the appointment of Neutral Expert, Annexure G provides details about the composition and procedure of Court of Arbitration and Annexure H contains provisions about the Transitional Arrangements (For more details see draft of the Indus Waters Treaty). 26 - Indus Basin covers the territories of Afghanistan, China, India and Pakistan. 27 - The decision is related to the rights and utilisation of waters of the Lake Lanoux between France and Spain. 28 - The principle “not to do significant harm” is identified with Roman law; sic utere tuo ut alienum non ladeas (so use your property as not to harm another). 193

29 - Article VI (2) states “ Each party agrees that any Non-Consumptive Use made by it shall be so made as not to materially change, on account of such use, the flow in any channel to the prejudice of the uses on that channel by the other party under the provisions of this Treaty. In executing any scheme of flood protection or flood control each Party will avoid, as for as practicable, any material damage to the other Party, any such scheme carried out by India on the Western Rivers shall not involve any use of water or any storage in addition to that provided under Article III”. 30 -Article VI (10) states “Each Party declares its intention to prevent, as for as practicable, undue pollution of the waters of the Rivers which might affect adversely uses similar in nature to those to which the waters were put on the Effective Date, and agree to take all reasonable measures to ensure that, before any sewage or industrial waste is allowed to flow into the Rivers, it will be treated, where necessary, in such manner as not materially to affect those uses: Provided that the criterion of reasonableness shall be the customary practice in similar situations on the Rivers”. 31 - Article VI (11) states “The Parties agree to adopt, as for as feasible, appropriate measures for the recovery and restoration to owners, of timber and other property floated or floating down the Rivers, subject to appropriate charges being paid by the owners”. 32 - The Commissioner has to be a high ranking engineer, especially competent in the field of hydrology and water use. (Indus Waters Treaty 1960, Article VIII, 1960) 33 - For details of the 23 areas see draft of the IWT 1960. 34 - For details see part 2 of the Annexure F of the Indus Waters Treaty 1960. 35 - The Court of Arbitration is to consist of seven members, two to be designated by each of the states, and other three to be selected by the agreement of the parties concerned, or failing that, by the designated individuals. One of the neutral members must be a person, qualified for the chairmanship of the Court of Arbitration and other two should an engineer and international lawyer respectively (Indus Waters Treaty 1960, Annexure G [4]).

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Chapter 6

Conclusion and Recommendations

6.1 Conclusion

The complex geographical set up of the IRB is the basic cause of conflicts over the utilisation of waters of the Indus River System between India and Pakistan. A deep analysis of priorities of the states concerned, conflicting political agendas and geopolitical realities make this study a complex task. Thus, this conclusion is limited to the analysis of the issues, objections and suggestions made by India and Pakistan related to the Indus Waters Treaty under the framework of international water law.

The IRB, comprising of the main Indus and its major eastern tributaries (the

Jhelum, Chenab, Ravi, Sutlej and Beas) and the River Kabul (a western tributary), is the most important river basin of the world. The IRB covers an area of about 365,000 square miles (944473 sq km) and spreads over the territories of China (10 percent),

India (7 percent), Pakistan (58 percent) and Afghanistan (8 percent). Remaining 17 percent is exists in disputed territory of Jammu and Kashmir.

Climatically, the IRB is situated in sub-tropical region and divided into two seasons, the summer and winter. Although, it receives widespread rainfall in summer but total annual rainfall places it in arid and semi-arid climatic zones. In summer, the monsoon rainfall is a prominent phenomenon which takes place in short span of time i.e. from July to August. Due to this variability in rainfall, the river flow fluctuates heavily. Resultantly, area under the IRB depends on river and ground water for about

80 percent of its agriculture.

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The Indus River System, on one side, has worked as a basic resource of economic development of the riparian countries but on the other side, as history reveals, it has been a cause of water related conflicts among the provinces or states of the IRB for long. Rapid increase of population, expanding urbanisation and increasing demand of water for irrigation and power generation are putting ever growing pressure on the waters of the Indus River System.

New geopolitical boundaries, emerged due to the partition of India in 1947, divided the already existed water related infrastructure, which increased bitterness in the already tense relations of newly born countries of India and Pakistan. The roots of enmity between India and Pakistan can be traced in the freedom movement. The

Muslims’ demand for the partition of India into Muslim India (Pakistan) and Hindu

India (Bharat) on religious grounds placed Hindus against Muslims. The process, by which Indian Sub-Continent was partitioned by the British rulers, engendered this animosity. Various political, geographical and economic disputes emerged due to the division of India into two independent and sovereign states of India and Pakistan.

Particularly, the issue of Jammu and Kashmir and apportionment of the waters of the

Indus River System have constantly worsened the Indo-Pakistan relations.

The dispute over the waters of the Indus River System was one of the most critical issues. It emerged due to the partition of India and it was not easy to solve this complex and critical issue in peaceful way. Many ad hoc agreements were signed but no permanent solution could be achieved. Ultimately in 1952, the World Bank intervened with an intention to facilitate parties concerned in the process of negotiations. Putting aside all extraneous disputes between the parties, the negotiation

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led by the World Bank mainly focused on the water conflict. The Bank constituted a group of engineers from both of the states to resolve the dispute. In 1954, the Bank presented its own formula consisting of the principles of dispute settlement and it was accepted by the both parties which culminated in Indus Waters Treaty.

The dispute over the waters of the Indus Rivers system is important not only for its significance, size and complexity but also in a sense that it was settled through a comprehensive treaty. The dispute remained unresolved for twelve years (from 1948 to 1960) but the World Bank’s intervention made it possible for the both countries to resolve this grave issue permanently by peaceful means. The dispute was resolved by signing the landmark agreement of the Indus Waters Treaty on September 19, 1960 in

Karachi. It was the result of eight years extensive negotiations and discussions between India and Pakistan under the auspices of the World Bank.

The dispute over the uses of water in the Indus River Basin was not a new phenomenon which erupted due to the partition of India. It has a long history. The dispute has its origin in first part of the 20th century when the Sutlej Valley Project was initiated in Punjab. Before the Sutlej Valley Project was sanctioned in 1921, a concern was voiced by various units on the adequacy of available supplies.

Bahawalpur State protested against any supply being given to Bikaner State, as provided in the project, on the ground that the supplies were insufficient even for the needs of the riparian areas of Punjab and Bahawalpur State. At the same time, Punjab protested against the Sukkar Canal Project, which was also before the Government for sanction, as it felt that there would be inadequate water for both Sukkar and Thal barrages. Bombay province, which than included Sindh, on its part protested against

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the Sutlej Valley Project because it feared that withdrawals for the project would leave inadequate supplies for Sukkar barrage.

After the 1st World War, the question arose about water sharing because of increasing withdrawals of river supplies as several projects were proposed in different parts of the Indus Plains. It called for the apportionment of the rivers waters among several riparian by the Government. Six attempts were made by the government before the partition to reach an agreement on water sharing in the Indus River Basin, which includes: Sutlej Valley Tripartite Agreement 1920, Indus Discharge Committee

1921, SVP Inquiry Committee 1932, the Anderson Committee 1932, Rau

Commission and Draft Sind-Punjab Agreement 1945.

After the partition in 1947, the dispute over the water sharing and management became more serious because the Radcliffe Line cut across the Indus River System and disrupted the well-managed and integrated irrigation system. The geography of the partition was such that the Ferozpur and Madhopur headworks of canals remained with India and irrigated land went to Pakistan. Thus, a dispute over the water sharing between India and Pakistan emerged due to the partition of canal system. The dispute gained international attention on 1stApril 1948 when East Punjab (India) stopped water to West Punjab (Pakistan) on the expiry of Arbitral Tribunal. This Indian action was the severe violation of the contemporary international law. Probably, first time in the history of water conflicts, India used the doctrine of “absolute territorial sovereignty” or “Hormone Doctrine” to justify its claim to waters of the Indus

System. This incident aggravated the already tense relations of the both states. Several

MOUs and agreements were signed to resolve dispute but unfortunately all efforts

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failed to produce any permanent settlement. However, it opened the way of negotiations towards the permanent resolution of dispute.

Due to complex nature of the dispute, bilateral negotiations could not produce any positive result. Thus, the World Bank entered into the scene to facilitate both the parties in process of negotiation for the permanent settlement of the dispute. The Bank intervened in the end of 1951 by starting communication on the utilisation of water between the two states but its actual involvement started when David A. Lilienthal, former chairman of T.V.A. and a close friend of Eugene R. Black, the then President of the World Bank, wrote an article in Collier’s Magazine on August 3, 1951 and presented a roadmap to settle the issue of water sharing in the Indus Basin. The essence of the Lilienthal’s plan was joint management of the Indus Basin which could be useful for future development.

The World Bank wanted to facilitate the parties concerned with its expertise and experience as it had earlier helped to settle such type of disputes in other parts of the world. Due to the tense political relationships between India and Pakistan, it was very difficult task to achieve a compromise over the issue of water utilisation. As the both states were not ready to show any flexibility in their basic claims, the involvement of third party as mediator became necessary. Resultantly, Mr. Black wrote to the India and Pakistan for negotiations and his offer was accepted by the both states. In response Mr. Black explicitly outlined “essential principles” of the

Lilienthal plan that might be followed for dispute settlement. Both countries accepted those principles and started the process of negotiations. Consequently, after extensive negotiations, discussions and modifications of almost eight years, the Indus Waters

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Treaty was signed on September 19, 1960 at Karachi between India and Pakistan, and the World Bank was also a signatory of the Treaty.

The Indus Waters Treaty is considered as the most successful agreement which settled a grave issue regarding the water apportionment in the Indus Basin and it has made the Indus Basin economically more viable for both India and Pakistan.

The Treaty has completely rejected all claims and counter claims of the parties concerned about their water rights and divided the rivers in eastern and western groups. Three Eastern Rivers (the Ravi, the Sutlej and the Beas) were given to India and three Western Rivers (the Indus, the Jhelum and the Chenab) were given to

Pakistan for their consumptive use.

Prior to the Treaty, both states were demanding the implementation of conflicting approaches of International Water Law to secure their water rights. Indian demand was based on the theory of ‘Absolute Territorial Sovereignty’ or ‘Harmon

Doctrine’ which gives an absolute right to each basin state to use a common river within its territory, as it deems fit, without concerning a damage or injury of its action to the other basin states. On the other side, Pakistan’s claim was based on the doctrine of ‘Prior Appropriation’ or ‘Historic Use’ which protects the right of prior utilisation.

But the solution provided by the Indus Water Treaty is based on the principles of engineering and economics rather than legal principles. Instead of dividing the waters of the Indus System, it divided the rivers of Indus System between India and Pakistan which gave them sovereign control over the waters and regulations of water supply within their boundaries, subjected to limited use provided to the other party.

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Distribution of rivers does not specify the quantity of water shares for the parties. It is basically a territorial division. The Treaty just reaffirms the territorial sovereignty of the both states. It does not make any modification in the boundary between India and Pakistan but draws an east-west line which divides the basin into two parts and provides sovereign rights to both India and Pakistan on half of the Indus

System. This type of division is not based on the contemporary laws; it is actually a political and economic division that concerns only the beneficial use of water. The

Treaty binds both parties for joint water administration but at the same time hinders them to interfering in the waters allocated to the other party.

A permanent institution of Indus Waters Commission was established by the

Treaty to maintain peace and cooperation in the region. The Commission remained successful to maintain peace even during the wars of 1965, 1971 and 1999 between

India and Pakistan. It has successfully worked as a means to prevent water-related conflicts. On the other side, some issues could not be solved by the Commission. It is a perception on the both sides of the international border that the Commission has been politicised and consequently, it could not resolve certain disputes. For example, the disputes over the Wullar Barrage, Baglihar Dam and Kishanganga Hydropower

Project could not be settled by the Indus Commission. The verdicts of the Neutral

Expert on the Baglihar Dam and International Court of Arbitration on Kishanganga

Project clearly show that India is allowed to construct run-of-the river power projects on the Western Rivers; keeping in view the criteria laid down under the provisions of the Treaty but these projects do not fulfil those criteria. Pakistan did not claim that construction of the power projects on Western Rivers by India was violation of the provisions of the Treaty. Its objections were about the technical issues such as height

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of the gated spill-ways, free board, location of intakes, diversion of the water from one tributary to other, storage reservoir, full pondage level, design of the projects and average daily flow of the rivers etc. However, India claims that her projects do not violate the Treaty and are being constructed under the parameters as laid down in the

Treaty.

In case of Baglihar Project, the Neutral Expert maintained Indian calculations regarding the free board inaccurate and directed for the reduction of 33 percent. He also directed India to raise the location of intakes about three meters and reduce the pondage from 37.722 MCM to 32.56 MCM. However, Pakistan’s objection regarding the gated spillway was rejected. In 2008, India started filling Baglihar reservoir which caused reduction of the flow of the Chenab River to 22,000 cusecs as against 55,000 cusecs as per the Treaty. Pakistan considered it a grave violation of the Treaty. In case of Kishanganga Project, the International Court of Arbitration allowed India to construct the Project with a condition of preserving 9 cumecs (cubic meter per second) flow in the river downstream of the project. In essence, Pakistan’s stance seems to be true that Indian projects were not being constructed by fulfilling all the requirements of the Treaty.

Keeping aside the truth value of the differences, the Indian projects have widened the trust gap between India and Pakistan and made water dispute a core issue in their relations. Intense political relations, distrust and lack of cooperation are major causes. If this issue is not resolved by peaceful means, it may lead to another war which will be fought on water. To resolve water related issues, it is time to review the viability of the Indus Waters Treaty as many experts from both sides of the border are

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of the view that the Treaty should be renegotiated because it does not allow the maximum use of waters of the Indus Basin. Both India and Pakistan should not insist to use water as a political weapon. It will be too dangerous to use it that way. It is very important to keep the interests of entire population in view, not of a particular community or region.

No doubt, International law protects international treaties and agreements and violation of these agreements is considered the violation of international law. Thus, the violation of the Indus Waters Treaty itself is the violation of international law. It is true that an agreement is negotiated and signed keeping in mind the existing international law but in 1960, when Indus Waters Treaty was signed between India and Pakistan, no internationally recognized legal instrument on the non-navigational uses of international rivers was available except some judicial decisions and state practices. So, the Indus Waters Treaty has no effect of Helsinki Rules and UN

Watercourses Convention which were signed in 1966 and 1997 respectively.

Keeping in view the principles of water management, the Indus Waters Treaty has some relevance with the Helsinki Rules (1966) and the UN Watercourses

Convention which came into force in 2015. The principles of equitable and reasonable utilisation, not to cause significant harm, cooperation and information exchange, notification, consultation and negotiation and peaceful settlements of disputes have been adopted by all aforementioned legal instruments. But the Indus Waters Treaty does not agree with the concept of the ‘drainage basin’ or ‘watercourse’ which is an essence of Helsinki Rules and UN Watercourses Convention that considers entire

Indus Basin as a unit.

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It is true that the Treaty provides a sound mechanism to address various issues but with the passage of time, some flaws have come on the scene. For instance, issues related to the use of groundwater, changing pattern of rivers’ fluctuation in rivers’ flow due to the climate change, increasing demand of water due to increase of population, variability of rainfall and future development cannot be addressed under the mechanism provided by the Treaty. A situation of chaos and confusion has emerged in the sub-continent as both India and Pakistan are facing acute water stress due to climate change and increasing demand of water. Due to this increasing water scarcity, an intense debate on water issue has started in the both states and some hawks from the both sides are demanding for the abrogation of the treaty or war on water. Any demand for the deconstruction of the Indus Waters Treaty must be supplemented with an alternative construction plan that only covers the gaps in the

Treaty and the process of negotiations should be started to fulfil the flaws without changing major features of the Treaty; otherwise whole exercise will lead to more confusion and chaos in the region.

6.2 Recommendations

Water politics has become a subject of crucial importance in the several parts of the world. Water experts are continuously predicting that the world may face severe water scarcity in the coming half century. The Indus Waters Treaty is under great stress due to growing water scarcity and ecological threat to the Indus River system. It is actually the water scarcity which forced both India and Pakistan on the crises like situation. Rapidly increasing population, increasing demand of energy and water requirements to irrigate more and more land to fulfil food requirements are the

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basic reasons which are responsible for the sufferings of the inhabitants of the Indus

Basin otherwise it was only Indus Waters Treaty which had acted as a guiding principle for the bilateral relations of India and Pakistan for more than 56 years.

Following suggestions are being made to resolve water dispute between India and Pakistan and to bring peace, security and stability in the region:

 First and the most important step should be taken by the both states is to

explore the mechanism of cooperation within the provisions of the Treaty.

Unfortunately, both India and Pakistan always try to search dispute related

provisions for their respective benefits. Each of the parties is exploring

grey areas to counter other’s development attempts. Neither country looks

seriously into those provisions of the Treaty which have much larger scope

of development and cooperation. It is, therefore, suggested that both states

must look into the article 6 and 7 of the Treaty to enhance level of

cooperation and development at the much larger scale and to focus their

efforts on the core human development concerns.

 The Permanent Indus Commission is the first layer of the dispute

settlement under the Treaty. Unfortunately, it has failed to resolve some

disputes and has been referring them to neutral experts and International

Court of Arbitration for their resolution at heavy cost. Both of the above

mentioned institutions are 2nd and 3rd tiers of dispute resolution mechanism

under the Treaty respectively. It is, therefore, recommended that legal and

technical capacity of the office of the Permanent Indus Commission should

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be strengthened to address the issues rapidly and more economically so

that ill-feelings can be avoided on both sides of the border.

 Water resources of the both states have been facing a challenge of

mismanagement and ill-governance due to the inter provincial/state and

regional politics since the partition of India. Particularly, in Pakistan, about

30 to 35 MAF water flows to Arabian Sea every year unutilised. Due to

the regional politics, Pakistan is unable to construct more reservoirs on the

Indus System and utilise unharnessed water for agricultural development.

It is, basically, a man-made disaster that is used by the politician for their

vested interests but it begs for urgent remedial actions. If both nations join

hands to manage their water resources in a proper way, the issue of water

scarcity and inter-state or intra-state conflicts can be avoided.

 The factors of mistrust and reliability of data exchanged are also important

causes of water conflicts between India and Pakistan. There should also be

a transparency in data sharing over the new Indian projects on the western

Rivers. These issues can be addressed more effectively and timely by

using modern technology. If both states jointly share the cost, a more

reliable and accurate data can be achieved by installing satellite based real-

time telemetry systems in Indian held Jammu and Kashmir at important

locations.

 In the last three decades, the watershed of the Indus Basin has badly

degraded. It is very important for the both countries to join hands to

address the common issues, like climate change, shrinking of glaciers,

water quality and usage of ground water for the rehabilitation of water

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resources of the Indus Basin. At present, both states are facing acute water

shortage due to the climatic change and fast melting of glaciers. Both

countries are not in a position to ignore their responsibilities towards the

environmental degradation in their respective territory, as both are

beneficiaries of water and other natural resources and they have to share

damages if the problem is not taken up properly. Since, Indus Waters

Treaty does not address these issues; the current scenario requires joint

environmental studies and some institutional framework to monitor these

issues.

 A new agreement should be developed under the Article VII (1) of the

Indus Waters Treaty that must recognise the internationally accepted rights

of lower riparian and ensure sufficient water availability in the lower parts

of the basin and ecological balance of the River Indus and its delta.

International monitoring and dispute resolution mechanism should be

included to resolve disputes under the framework of international water

laws.

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APPENDIX A

Joint Statement of May 4, 1948 on Water Sharing between India and Pakistan

1. A dispute has arisen between the East and West Punjab Governments regarding the supply by East Punjab of water to the Central Bari Doab and the Dipalpur canals in West Punjab. The contention of the East Punjab Government is that under the Punjab Partition (Apportionment of Assets and Liabilities) Order, 1947, and the Arbitral Award the proprietary rights in waters, of the rivers in East Punjab vest wholly in the East Punjab Government and that the West Punjab Government cannot claim any share of these waters as a right. The west Punjab Government disputes this contention, its view being that the point has conclusively decided in its favour by implication by the Arbitral Award and that in accordance with international law and equity, West Punjab has a right to the waters of the East Punjab Rivers. 2. The East Punjab Government has revived the flow of water into these canals on certain conditions of which two are disputed by West Punjab. One, which arises out of the contention in paragraph 1, is the right to the levy of seigneur age charges for water and the other is the question of the capital cost of the Madhopur Headworks and the carrier channels to be taken into account. 3. The East and West Punjab Governments are anxious that this question should be settled in a spirit of goodwill and friendship. Without prejudice to its legal rights in the matter the East Punjab government has assured the west Punjab government that it had no intention suddenly to withhold waters from West Punjab without giving it time to tape alternative sources. The West Punjab government on its part recognizes the natural anxiety of the East Punjab government to discharge the obligation to develop areas where water is scarce which were under-developed in relation to parts of west Punjab. 4. Apart, therefore from the question of law involved, the governments are anxious to approach the problem in a practical spirit on the basis of East Punjab Government progressively diminishing its supplies to these canals

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in order to give reasonable time to enable the west Punjab Government to help alternative sources. 5. The West Punjab Government has agreed to deposit immediately in the reserve Bank such ad hoc sum as may be specified by the Prime Minister of India. Out of this sum, that Government agrees to the immediate transfer to East Punjab Government of sums over which there is no dispute. 6. After an examination by each party of the legal issues, of the method of estimating the cost of water to be supplied by the east Punjab government and of the Technical survey of water resources and the means of using them for supply to these canals, the two governments agree that further meeting between their representatives should take place. 7. The dominion Governments of India and Pakistan accept the above terms and express the hope that a friendly solution will be reached.

(Sd.) JAWAHAR LAL NEHRU. (Sd.) GHULAM MUHAMMAD. (Sd.) SWARAN SINGH. (Sd.) SHAUKAT HAYAT KHAN. (Sd.) N. V. GEDGIL. (Sd.) MUMTAZ DAULTANA.

NEW DELHI. May 4, 1948.

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APPENDIX B

Letter from the World Bank President, Eugene Black, to the Prime Minister of Pakistan, Liaquat Ali Khan; 6 September 1951. (A similar letter was sent to the Prime Minister of India, Jawaharlal Nehru.)

There appeared in the popular American magazine “Colliers” of August 4, 1951, an article by Mr. David E. Lilienthal proposing a cooperative regional approach to the development of the water resources of the Indus Basin. Because of the wide circulation of this magazine and Mr. Lilienthal’s reputation as an authority in the field of regional development, this article has attracted a great deal of interest in the United States. I assume that copies of Mr. Lilienthal’s article have been brought to the notice of the Government of Pakistan.

Mr. Lilienthal’s proposal contemplates meeting the requirements of both countries for expanded irrigation through the cooperative construction and operation of storage dams and other facilities to be financed in part perhaps by this Bank. It is the essence of the proposal, as I read it, that the development of the Indus water resources should be dealt with on an engineering basis and it appears to be Mr. Lilienthal’s belief, after visiting both countries and talking with the highest personalities in the governments, that it is within the realm of practicability to treat water development as a common project that is functional, and not political, in nature and that could therefore be undertaken separately from the political issues with which Pakistan and India are confronted.

As you may be aware, both Pakistan and India have from time to time raised with the Bank the possibility of financing irrigation and hydroelectric works in the Indus Basin and in each case the international water-rights problem has been an obstacle. A constructive programme for the effective use of the water resources would, moreover, have important implications for the economic development of both countries in other fields. Since the matter is therefore of interest to the Bank and since the Bank’s name has now been publicly mentioned in this connection, I should like to ask you whether you are disposed to look with favor upon Mr. Lilienthal’s proposal. If so, I can assure you that, if your Government and the Government of India desired to approach the

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development of the Indus water resources along the lines suggested by Mr. Lilienthal, I should be most happy to recommend that the Bank lend its good offices in such directions as might be considered appropriate by the two governments, make available qualified members of its staff and consider any financing proposals that might develop as a result of joint planning.

I am sending a letter in similar terms to the Prime Minister of India.

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APPENDIX C

Letter from the World Bank President, Eugene Black, to the Prime Minister of Pakistan, Khwaja Nazimuddin; 8 November 1951. (A similar letter was sent to the Prime Minister of India, Jawaharlal Nehru)

I have previously expressed my profound regrets on learning of the death of Mr. Liaquat Ali Khan. I must now revert to the subject of my correspondence with him which was interrupted by that tragic event.

I was much gratified to receive, in Mr. Liaquat Ali Khan's reply of September 25, 1951, to my letter of September 6, 1951, assurance that the Pakistan Government favours looking at the Indus basin water resources from a regional viewpoint with the objective of cooperative development and that he welcomed my proposal along the lines indicated in his letter, which I have carefully studied.

The Prime Minister of India has also sent a favourable reply.

These two letters have convinced me that a solution to the problem of using the water resources of the Indus basin in such a way was to make a maximum contribution to the development of both countries is well within the bounds of practicability. I am therefore encouraged to suggest to the two Governments a procedure which seems to me to afford the best prospects of accomplishing that objective.

I shall base my suggestions on the essential principles of Mr. Lilienthal's proposal which are, as I understand them, the following: (a) The Indus basin water resources are sufficient to continue all existing uses and to meet the further needs of both countries for water from that source. (b) The water resources of the Indus basin should be cooperatively developed and used in such manner as most effectively to promote the economic development of the Indus basin viewed as a unit. (c) The problem of development and use of the Indus basin water resources should be solved on a functional and not a political plane, without relation to past negotiations and past claims and independently of political issues.

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I assume that, in indicating their willingness to proceed on the basis of Mr. Lilienthal's proposals, the two Governments have accepted these principles. My suggestions as to procedure, which I believe faithfully reflect these principles, are based on that assumption.

I should perhaps add that, through its contacts with the two countries, the Bank is convinced that the engineers and other technicians of Pakistan and India are fully qualified to provide the principal technical and planning skills needed to develop, for submission to the two Governments, a comprehensive program for the utilization of the Indus basin water resources. That has been a major consideration in my formulation of a suggested procedure.

My proposal is as follows: (a) Pakistan and India would each delegate a qualified engineer of high standing to prepare, jointly with the designee of the other, a comprehensive long-range plan for the most effective utilisation of the water resources of the Indus basin in the development of the region. Each designee would be instructed to govern himself by the principles stated above and to approach the problem on its merits in the interest of economic development of the Indus basin viewed as a unit. Each designee would have such technical assistants as he might desire and as might be available, and the two together would be authorized to retain the services of such engineers, agricultural technicians, economists and other experts, from either or both of the two countries of from other countries, as they might mutually find desirable. (b) An engineer selected by the Bank would be continuously available during the planning stage to work with the designees of the two countries. He would keep himself informed of the planning in view of the Bank's previously expressed readiness to consider financing proposals and would participate in the working party as an impartial adviser, free to express his views on any aspects of the matter and available to perform such other services as might be mutually determined to be appropriate. He could thus assist in solving problems without being in the position of an arbitrator. Before selecting its representative, the Bank would ascertain that he would be acceptable to the two Governments. There would be available to him, and through him to the entire working party, such technical assistance furnished by the Bank as might be needed to supplement the resources otherwise available. (c) The working party would hold an initial meeting for the purpose of determining the procedure to be followed in working out the plan, the steps needed to be taken, the order and manner in which those steps would be undertaken and the persons by whom they would be undertaken, and would set target dates for completion of the various steps. On reaching agreement on these matters, the working party would promptly, without the need of any further authorization, put the agreed procedure into effect and begin work on the plan.

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I suggest that this initial meeting take place on January 3, 1952, at the Bank's Washington Office.

I feel strongly that publicity should be avoided at least until an agreement on procedure has been reached by the working party at the initial meeting. Whether any public statement should be made after a working procedure has been decided upon would be a matter for discussion between the two Governments and the Bank.

If I assume, the Governments of Pakistan and India are in agreement on the principles underlying Mr. Lilienthal's proposal, as I have set them forth above, I anticipate fruitful results from this suggested procedure. At the present stage I have not felt free to bring this matter before the Executive Directors of the Bank but I believe that I can assure you that if the two Governments are prepared to proceed, the Executive Directors, as well as the management and staff, will be happy to cooperate with them in facilitating a solution to this vital development problem.

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APPENDIX D

Letter from the World Bank President, Eugene Black, to the Prime Minister of Pakistan, Khwaja Nazimuddin; 13 March 1952. (A similar letter was sent to the Prime Minister of India, Jawaharlal Nehru)

I refer to the conversation we have had about the Indus Basin water problem and to similar conversations I have had with the Prime Minister of India. I am happy to say that I have found common understanding as to the bases on which we can go forward under the Lilienthal proposal.

We all agree that the function of the working party is to work out, and the ultimate objective is to carry out, specific engineering measures by which the supplies effectively available to each country will be increased substantially beyond what they have ever been. Except as the two sides may hereafter agree, legal rights will not be affected and each side will be free to withdraw at any time; but while 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.

It should be understood that the three main principles set forth in my letter of November 8, 1951 provide the broad basis on which the engineers will meet but are not intended as rigidly fixed terms of reference. Within the broad outline of the basic framework the engineers should be free to put forward or consider proposals in pursuance of the general objective.

With these clarifications both Governments are ready to go forward in accordance with my letter of November 8, 1951, the first meeting of the working party to be held on April 7, 1952 [April is crossed out, replaced by May]. I am therefore happy to invite the designee of your Government, and his technical assistants, to be present at the Bank's Washington office on that date.

I am sending an identical letter to the Prime Minister of India.

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APPENDIX E

Proposal by the International Bank Representative for a Plan for the Development and use of the Indus Basin Waters, 5 February 1954

Introduction

The Indus Basin Working Party, consisting of engineers designated by India and Pakistan and their advisors assisted by the Bank Representative and consultants, have for almost two years worked at their task of preparing a comprehensive plan for the utilization of the waters of the Indus system, in accordance with the suggestion made by Mr David E Lilienthal in August, 1951. Over a year was spent in compiling and analyzing data in a field trip of more than 9000 miles in the basin. Efforts to agree in advance on a common approach having proved fruitless, the two Designees, at the suggestion of the Bank Representative, each proposed a comprehensive plan.

As presented the plans differed widely in concept and in substance. Subsequent discussions have produced substantial concessions, but these have not been enough to bring about an agreement and the margin of difference between the two plans remains wide. In rough approximation, the two plans (as modified by recent concessions) provide for the following division of usable supplies of water:

Indian Plan Usable supplies allocated to India - all of the Eastern rivers and 7% of the Western rivers Pakistan - none of the Eastern rivers and 93% of the Western rivers

Pakistan Plan Usable supplies allocated to India -30% of the Eastern rivers and none of the Western rivers Pakistan - 70% of the Eastern rivers and all of the Western rivers

In quantitative terms, the division of the usable supplies of water may be approximately shown as follows (in millions of acre-feet):

Total uses excluding losses and unusable supplies For India For Pakistan Total Usable India 29 90 119 Pakistan 15.5 102.5 118

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The present status is that it has not yet been possible to reach agreement and that, in the absence of some new development, there is no prospect of further progress in the Working Party. Before considering what step should next be taken, it will be useful to analyze the reasons that have so far prevented agreement.

Essential Elements of the Problem

The inability to agree in the Working Party has not been due to the technical difficulties or inability to devise appropriate engineering works and measures to make the most effective use of the waters. If this were the whole problem, a solution would doubtless have been found before now.

The available technical resources are impressive. The proficiency of the Indian and Pakistani engineers in canal irrigation techniques is unsurpassed, and perhaps unequalled, anywhere in the world. Abundant technical data is at hand. It is doubtful whether such complete recorded flow data exists for the Indus system of rivers and canals could be duplicated for any comparable river system in any other country.

Moreover, there is a large measure of accord between the two Designees on certain fundamentals. The Working Party are in agreement that the average annual flow is not sufficiently dependable to be taken as a basis for planning and that some more conservative figures must be used. For the most practical purposes, they are in agreement on the amount of unusable supplies in the rivers, on the amount that can be developed through storage, on the sites and capacities of possible storage facilities and on the technical feasibility of proposed engineering works. They agree that existing uses of water must be respected (although they differ as to the meaning of “existing uses”). They agree that surplus usable supplies, including supplies that can be developed through storage, must be equitably apportioned among the potential new uses in the interests of the economic development of the basin as a unit (though they differ in defining the boundaries of the basin). They agree that existing inundation canals should be replaced by weir-controlled canals. Finally both sides appear to accept the concept that the cost of the new works should be allocated to the two countries in the proportion in which they derive benefit there from.

The extensive compilation of data and the large area of agreement that already exists provide firm foundations for a settlement, and thus represent most valuable contributions by the Working Party to an ultimate solution. Unfortunately, they are not enough in themselves to 229

bring about an agreement. What hampers further progress in the Working Party is no matter of engineering complexity, but rather a combination of three basic difficulties which have so far prevented the Working Party from reaching the heart of the problem - a fair division of the waters between the two countries.

The first difficulty lies in the fact that water supplies and storage potentialities are inadequate to the needs of the basin. The Indus is one of the world’s greatest river systems. With proper development by engineering works, it is capable of providing substantially more irrigation to each country than has ever been enjoyed. But even after full development, there will not be enough water to supply all the needs of the water.

This means that there can be no ideal plan which will fully satisfy both sides. Any plan must involve a large element of compromise under which each country will have to forego some of the irrigation uses that it would wish to develop if adequate supplies and storage were available.

The second difficulty is that although the Working Party are planning on the basis of the development of the Indus Basin as an economic unit, two sovereign states are involved. This greatly limits the practical potentialities of planning. A comprehensive plan can achieve maximum efficiency, economy and usefulness when it is developed and administered by a single authority. Under such an authority, decisions can be made promptly, plans can be readily changed to meet new circumstances and accommodations made to meet emergencies.

When two sovereign authorities are concerned, it is difficult to use resources to the greatest advantage. Problems must be solved by negotiation and agreement rather than by decision. Minor questions of planning and operational detail must be referred to high authority and dealt with, perhaps, through diplomatic channels. Moreover the two countries may follow different development policies, or may have unequal resources available for development. They may also (as has been evident in the present discussions) be reluctant to have works regulating water supplies on which they depend constructed in territory controlled by another country. All these factors make agreement difficult.

In the present case, it would be unrealistic to ignore this difficulty. The prospects of being able to establish an efficient and smooth -running joint administration are not favorable. At present, any comprehensive plan must be framed with this limitation in mind.

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The third difficulty, the most serious of all, has arisen in the course of discussions. The plans put forward by the two sides differ fundamentally in concept. An essential part of the Pakistan concept is that existing uses of water must be continued from existing sources. Moreover “existing uses”, in the Pakistan plan, include not only the amounts of water that have actually been put to use in the past, but also the allocations of water which have been sanctioned prior to partition, even though the necessary supplies have not been available for use. This concept protects Pakistan’s actual and potential uses on the Eastern Rivers and reserves most of the water in the Western rivers for use in Pakistan.

The corresponding concept of the Indian plan, on the other hand, is that although existing uses (here defined to include only actual historic withdrawals) must be continued, they need not necessarily be continued from existing sources. This concept permits the water in the Eastern rivers which is now used in Pakistan to be released for use in India and replaced by water from the Western rivers.

The basic divergence of concept, together with the other two difficulties mentioned above, effectively blocks progress towards a settlement. As long as it persists, there is no prospect that further discussions will prove fruitful.

The Bank Proposal

Both sides have repeatedly stated that they sincerely desire a settlement and that in this they reflect the desires of their Governments. It is vital that a settlement be reached. Moreover, after two years’ concern with the problem, the Bank is convinced that, despite the difficulties mentioned above, no insurmountable obstacle exists to a settlement which will benefit both countries. On the contrary, there is no doubt that this dispute can be settled on terms by which ‘the supplies effectively available to each country will be increased substantially beyond what they have ever been.

In the circumstances, the Bank Representative feels that he has the responsibility to put forward a proposal for the consideration of both sides to serve as the basis of a comprehensive plan. The proposal has the concurrence of the engineering consultants to the Bank Representative and is put forward with the full support of the management of the Bank.

This proposal has been framed in complete realisation of the nature of the Bank’s role in these discussions. Though the Bank Representative is ‘free to express his views on any aspect of 121 the matter,’ neither he nor the Bank is in the position of a judge or arbitrator. The Bank 231

cannot, therefore, pass upon any of the legal contentions that have been put forward by the parties in the past. The proposal here made does not express, and is not intended to imply, any opinion on those contentions.

The Bank proposal is no arbitrary compromise arrived at by mathematically splitting the differences between the two sides. It is a plan based on concepts of its own, which produce a fair and economic result.

In the formulation of the Bank proposal, the divergence of concept in the Working Party as to treatment of existing uses had to be faced at the outset. The Bank proposal embodies the principle that historic withdrawals of water must be continued, but not necessarily from existing sources. This principle allows water to be used so as most effectively to promote development. A requirement that existing uses must be supplied from existing sources would unduly limit the flexibility of operation needed for the efficient use of waters. In fact, no fair and adequate comprehensive plan could, in the opinion of the Bank Representative, be devised under such a requirement.

The Bank proposal also embodies the principle that, in view of existing circumstances, allocation of supplies to the two countries should be such as to afford the greatest possible freedom of action by each country in the operation, maintenance and future development of its irrigation facilities. It is desirable, so far as practicable, to avoid control by India over waters on which Pakistan will be dependent, and to enable each country to control the works supplying the water allocated to it and determine in its own interests the apportionment of waters within its own territories. This principle has not merely the negative advantage of minimizing friction between the two countries (a matter of some significance in view of the disputes that have arisen from sharing waters from the same river) and of avoiding the necessity of a costly and perhaps ineffective permanent joint administration. It also has a positive advantage. There is every reason to believe that leaving each country free to develop its own water resources in the light of its own needs and resources, and without having to obtain the agreement of the other at each point, will in the long run mostly effectively promote the efficient development of the whole system.

This does not mean that the Bank proposal places any obstacle in the way of cooperation between the two countries. On the contrary, it encourages cooperation and permits full advantage to be taken of any willingness to cooperate. But it is capable of bringing benefits even if a full degree of cooperation does not develop as rapidly as might be hoped.

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Statement of Bank Proposal

The Bank proposal is that there be taken as a basis for agreement between India and Pakistan a plan under which the waters of the Western rivers would be reserved to Pakistan and the waters of the Eastern Rivers would, subject to a relatively short transition period, be reserved to India. The plan may be summarized as follows:

The entire flow of the Western rivers (Indus, Jhelum and Chenab) would be available for the exclusive use and benefit of Pakistan, and for development by Pakistan, except for the insignificant volume of Jhelum flow presently used in Kashmir.

The entire flow of the Eastern rivers (Ravi, Beas and Sutlej) would be available for the exclusive use and benefit of India, and for development by India, except that for a specified transition period India would continue to supply from these rivers, in accordance with an agreed schedule, the historic withdrawals from these rivers in Pakistan.

The transition period would be calculated on the basis of the time estimated to be required to complete the link canals needed in Pakistan to make transfers for the purpose of replacing supplies from India. A temporary cooperative administration would be needed to supervise the carrying out of the transitional arrangements.

Each country would construct the works located on its territories which are planned for the development of the supplies. The costs of such works would be borne by the country to be benefited thereby. Although no works are planned for joint construction by the two countries, certain link canals in Pakistan will, as stated above, be needed to replace supplies from India. India would bear the costs of such works to the extent of the benefits to be received by her there from. An appropriate procedure would be established for adjudicating or arbitrating disputes concerning the allocation of costs under this principle. Some additional explanation may be helpful to a consideration of the Bank proposal.

The entire flow of the Indus, Jhelum and Chenab Rivers (Western rivers) would be allocated to Pakistan. These rivers are now used within Pakistan, except for the insignificant volume of the Jhelum that is used in Kashmir. Although the Indus River has its source outside Pakistan in Tibet and flows for a considerable length before entering Pakistan, the mountainous topography is unfavourable for irrigation development. Therefore, unhindered use by Pakistan of its waters seems assured. The Jhelum River rises and flows for some distance in Kashmir 233

and, although here also reasons of topography limit the opportunities for irrigation diversion, there should be agreement that the flow will not be disturbed. The Chenab River rises in India and before it enters Kashmir, provides a substantial flow that could be diverted for use in India. Assurance by India that the flow of this river will not be disturbed is essential.

The entire flow of the Sutlej, Beas and Ravi Rivers (Eastern Rivers) would be allocated to India when the necessary works have been completed to permit transfers of supplies from the Western rivers to replace historic withdrawals in Pakistan from the Eastern rivers. At present, India is not receiving the entire flow of these rivers but is supplying there from a substantial amount for canals in Pakistan, principally in the Sutlej Valley.

The works that are necessary to replace supplies from India consist of link canals connecting the Western to the Eastern rivers. Several such link canals have already been constructed by Pakistan, one is nearing completion and some additional canals will undoubtedly be necessary. As the necessary link canals are to be constructed in Pakistan, their integration with present planning there must be determined by Pakistan. Since any plan for transfer of supplies is susceptible of various modifications, accurate determination of costs must await completion of engineering studies.

It is proposed that the costs of these works will be borne by the two countries in proportion to the benefits. Thus, the cost of a canal in Pakistan of the capacity required to replace supplies from India would be borne by India; but if Pakistan decides, in its own interests, to increase the capacity beyond what is needed for such replacement, the cost would be shared proportionately by the two countries.

It will be necessary, under the Bank proposal, for India to continue to supply the Pakistan canals until the necessary works are completed by Pakistan for transfer of supplies from the Western rivers. This will involve preparation of a construction time schedule and of a time schedule for actual transfer of supplies.

These schedules would allow the actual transfers of supplies to come into effect progressively and the deliveries by India to diminish accordingly. They must be prepared cooperatively and agreed to by both countries. The period required for completion of the necessary link canals is roughly estimated to be about 5 years.

As indicated in the summary, temporary cooperative administrative machinery would be needed in the transition period to facilitate the carrying of the time schedules. There would be 234

exchange of data on river discharges and withdrawals and on construction of interest to both countries. Joint observations would be provided for. Arrangements for settling disputes concerning allocations of cost by arbitration or adjudication would also be needed.

The Bank proposal contemplates that no reservoir storage (aside from the Bhakra dam which should be completed by the end of the transition period) will be required to supplement flow water in continuing the historic withdrawals. The inter-connected system which the link canals would provide could be so operated as the meet the existing requirements of the Sutlej Valley lands except, perhaps, in small amounts in a few canals in exceptional years.

Even without further storage construction, the Bank plan would permit the following uses after the transition period:

Pakistan could supply her historic withdrawals and could bring most of the Sutlej Valley Canals up to allocation. She could also meet the requirements of projects in progress on the Indus.

India could supply her historic withdrawals and meet the requirements of projects in progress except that some modifications of the Rajasthan Canal project would be required; at least until further reservoir capacity is available.

There can be no doubt, however, that additional reservoir storage is necessary for the full development of the system and such storage is contemplated by the Bank plan. Any further storage capacity would greatly reduce the possibility of shortages and would support substantial new irrigation uses.

So far as is now known the potential storage capacities which could be developed by the two countries under the Bank plan would be about equal. However, no thorough engineering studies have been made and accordingly storage capacity (except for Bhakra) cannot be definitely determined. Further studies may well disclose additional reservoir possibilities not now known. Costs can obviously not be estimated at present and construction time can be only approximated.

The following table gives a rough quantitative comparison (in millions of acre-feet of usable supplies) between the Indian and Pakistan plans, as modified by recent concessions, and the Bank plan:

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Plan Total Uses Excluding Losses and Unusable Supplies For India For Pakistan Total Usable Indian 29 90 119 Pakistan 15.5 102.5 118 Bank 22 97 119

Comments on Bank Proposal

An essential test of a comprehensive plan is its fairness. The Bank proposal provides a fair division of the waters. It protect existing irrigation uses from disturbance and allocates surplus supplies, those already developed and those that may be developed, in accordance with the principle of equitable apportionment.

The Bank Representative is aware that certain minor adjustments would make the plan more economic if there were a sufficient assurance of cooperation between the parties to permit these measures to be planned and carried out.

At the present time, however, no such adjustments are recommended. If in the course of the transition period the prospects for long-term cooperation appear favourable enough, there will then be ample opportunity to agree on adjustments. But in present circumstances, their disadvantages appear to be greater than their benefits. Most such adjustments would require the establishment of a permanent joint commission. Administrative arrangements of that kind are costly, and the costs recur annually. More significantly, joint commissions are likely to be inefficient except in extremely favourable conditions.

One of the merits of the Bank proposal is that, unlike the plans of the two Designees, it avoids the complexities that would require the establishment of a permanent joint commission.

A further advantage of the Bank proposal lies in the fact that, after transfer works are completed, each country will be independent of the other in the operation of its supplies. Each country will be responsible for planning, constructing and administering its own facilities in its own territories as it sees fit. This should provide strong incentives to each country to make the most effective use of water, since any efficiency accomplished by works undertaken by either country for storage, transfer, reduction of losses and the like will accrue directly to the benefit of that country. The same will be true of efficiency achieved in operations. Pakistan, for instance, will be able to take full advantage of the flexibility afforded by an inter-

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connecting system. As the flow of the rivers varies with the seasons, and from year to year, supplies that are surplus in one river can be transferred to a river in which supplies are low. Likewise India will be able to operate Bhakra so as to meet the varying requirements of different areas. By contrast, if the supplies from particular rivers were shared by the two countries, the administrative complexity of arranging necessary adjustments to meet variations in flow and scheduling for crop needs would be formidable.

The mutual independence afforded by the Bank proposal would also bring benefits of a different kind. The location of works serving each country on territories under its control, and the assurances against interference by either country with the supplies on which the other depends, should reduce the chances of disputes and tension and contribute to improved relations.

All these factors should serve to promote the development of the entire basin.

A number of contentions have been made in the Working Party discussions which need not be resolved by agreement if the Bank proposal is adopted. There has been discussion about the location of the easterly boundary of the Indus Basin, a question which is difficult to settle since the area is a desert with no discernible watershed. Under the Bank proposal, the question need not be settled by agreement. Each country will be free to use the waters allocated to it as it sees fit.

There has also been discussion about the proper allowance for gains and losses, for salinity repulsion and for tubewell supply. It is not possible to answer these questions precisely at this time; nor will it be possible for some years until upstream storage and use permits much less wastage to the sea. The best method of dealing with these questions is to let each country make such provision out of supplies allotted to it, or take such engineering measures, as it deems wise.

It might perhaps be said that the allocation of the waters of a river to lands far removed from its banks, rather than to adjacent lands, is abnormal. But the practice is not new; it was well- known in the Indus Basin before partition and has been followed since partition. Besides, recent history of the Indus Basin has not been normal. It is unusual, to say the least, to find an elaborate irrigation system, originally planned and operated under a single political regime, suddenly cut in two by a new political boundary.

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It might also be said that the Bank proposal differs from pre-partition plans in that it contemplates irrigation of lands for which irrigation was not formerly planned. There would be substance in such a statement. The justification is that social and economic conditions have changed. Political developments have shifted large masses of population to new homes and these people now need irrigated land. No comprehensive plan would be realistic that failed to take account of the changed situation.

Conclusion

The Bank proposal is simple, workable and fair. It will effectively promote the economic development of the Indus Basin and will benefit both countries by substantially increasing the amount of usable water available to each of them. The Bank Representative recommends its acceptance as the basis of agreement.

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APPENDIX F

Aide Memoire, 21 May 1956

1. Cooperative work on the Indus Basin question was resumed in November 1954 on the basis of “Terms of Reference and Procedure” proposed by the Bank and accepted by the Government of India and the Government of Pakistan. The objective of this latest phase of the cooperative work has been to prepare ‘a comprehensive plan for the consideration of Governments, on the basis of the Bank proposal of February 5, 1954, taking as a starting point the division of waters envisaged therein.’ 2. The Delegations of India and Pakistan, together with the Bank Group, have now been at work for almost 18 months. During this time a series of studies have been carried out by both Delegations and numerous memoranda have been submitted by each side bearing on the various issues arising out of Paragraphs 2 and 3 of the Terms of Reference. The Bank has also arranged for the Bank Consultants (TAMS) to carry out a series of independent studies of the same nature. 3. The present status of the discussions can be summarized as follows: [a] It has not been possible to secure full agreement between the two Delegations on:- [i] the quantitative aspects of certain of the uses specified in Paragraph 2 and in Paragraph 3 of the Terms of Reference. [ii] certain technical considerations involved (e.g. the effect of the proposed changed regime of the rivers on “Gains and Losses”) [b] In the absence of agreement on the points mentioned in [a] above, it has not been possible to secure a common approach to the actual engineering features of a “Comprehensive Plan.” 4. The Bank continues to hold the view that the “division of the waters” contemplated by the Bank Proposal of February 1954 affords the best prospects for a settlement of the Indus Waters question; that out of the flow-cum-storage potential of the rivers allocated to them, India and Pakistan could each develop very substantial irrigation uses, additional to those that they now enjoy; and that no insuperable engineering difficulties are likely to arise in either country in constructing the physical works necessary to develop these additional supplies. The

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works would, however, be costly; and their financing would present a serious financial problem. 5. The Bank is of the opinion that no useful purpose is likely to be served by continuing to devote the cooperative work to an attempt to obtain agreement of the two Delegations on the issues arising out of Paragraph 2 and Paragraph 3 of the Terms of Reference. The Bank, however, feels it desirable, at the stage which the discussions have now reached, that the Bank should consider, in the light of the studies made by the consultants, whether any “adjustment” in the Bank Proposal of February 1954 is called for; and also to make proposals to the two Governments with regard to future Bank participation.

Paragraph 2 Uses and Surplus 6. [a] The Bank’s consultants have studied the extent to which the flow of the Western Rivers will meet the uses envisaged in Paragraph 2 of the Terms of Reference, and the nature and extent of any surplus. [b] For this purpose, the Bank asked its Consultants to adopt the following quantum of uses:- [i] Historic withdrawals of all canals (except the Pakistan Sutlej Valley Canals); [ii] Allocations for the Pakistan Sutlej Valley Canals (11.1 MAF)*; [iii] 3.6 MAF for Thal;* [iv] 9.5 MAF for Kotri.* (* With distribution shown in Appendix A). [c] These studies have led the Bank Group to the conclusion that, after taking into account the possibilities of the transfer of flow supplies of the Indus, Jhelum and Chenab by a system of link canals:- [i] There would be no shortages in Kharif, except for occasional 10-day periods in April and September in occasional years. [ii] There would be consistent surpluses in Kharif, significant in quantity, duration and frequency. [iii] There would be consistent shortages in Rabi, occasionally beginning in late September of extending into early April (see [i] above), of a degree,

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duration and frequency which the Bank Group could not regard as “tolerable”.

Paragraph 3 Uses 7. [a] Additional Requirements of Sukkur and Gudu Pakistan has claimed for Sukkur substantial additional uses both in Rabi and in Kharif, and for Gudu substantial additional uses during Kharif only. If the pre- partition regime of the six rivers were to continue undisturbed, no significant additional Rabi irrigation at Sukkur could be developed on any dependable basis, from flow alone. Consequently, none could be developed only from the flow of the Western Rivers. So far as Kharif uses at Sukkur and at Gudu are concerned, the Kharif surplus referred to in Paragraph 6[c] [ii] above is available to allocate to new Kharif uses at these two projects, and to employ as a substitute for “Sailab.” [b] Future Development in the State of Jammu and Kashmir India has claimed that some part of the flow of the Jhelum and Chenab should be reserved for future development in the State of Jammu and Kashmir. It has been stated by India that this development would involve “relatively insignificant consumptive uses.” This question should, in the Bank’s view, be postponed until the point has been reached when the provisions of an international water treaty might be under consideration.

“Adjustments” to the Bank Proposal 8. [a] In the light of the conclusions at which the Bank has arrived, as set out in Paragraphs 6 and 7 above, the Bank feels that an adjustment in its Proposal of February 1954 is called for. This adjustment should, in the Bank’s view, assure to Pakistan “timely” water sufficient to eliminate the shortage referred to in Paragraph 6[c] [iii]. The adjustment referred to in [a] above might take any of the following forms, or a combination of any two or all of them:- [i] Supplies from tubewells. [ii] Continued deliveries to Pakistan of “timely” water from the Eastern Rivers. [iii] Construction of storage on the Western Rivers.

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[c] When the Bank made its proposal of February 1954, the possibility, both in India and in Pakistan, of supplementing flow by supplies from tube-wells, was realized. But this source of supply is not, in the Bank’s view, an appropriate means, over the long term, of eliminating any part of the disclosed shortage. Accordingly, and if the Division of Waters contemplated by the Bank Proposal is maintained, the adjustment should be in the form of storage on the Western Rivers. 9. The system of works to implement the Bank Proposal, as adjusted, should, therefore, in the Bank’s view, be based on the principle that, for the purpose of meeting the “Paragraph 2 Uses,” flow of the Western Rivers (Indus, as well as Jhelum and Chenab) should be exploited to the maximum possible extent, and that the minimum inroads should be made on Pakistan’s limited storage capacity. In the Bank’s view, the cost of this system of works should be the basis of the calculation of India’s financial liability. 10. The Bank now wishes to propose to the two Governments the following course of action:- [a] The completion of negotiations with the two Delegations of ad hoc amounts for Indian withdrawals from the Eastern Rivers during the period 1st April 1956 to 31st March 1957. [b] A continuance of the period of the cooperative work until 31st March 1957. [c] After the two Governments had agreed to [b] above, the conclusion of an inter-Governmental Agreement to cover [a] above. [d] That the Bank should then proceed to use its good offices to bring about acceptance of an appropriate adjustment of the Bank Proposal of February 1954, along the lines indicated. 11. The Bank feels that if, by 31st March 1957, the Bank should see no reasonable prospects for a settlement on the basis of the Bank Proposal, with an appropriate adjustment, the Bank would have to consider whether the employment of its good offices could make any further contribution to a solution.

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APPENDIX G

Text of the Indus Waters Treaty, 1960. Preamble

The Government of India and the Government of Pakistan, being equally desirous of attaining the most complete and satisfactory utilisation of the waters of the Indus system of rivers and recognising the need, therefore, of fixing and delimiting, in a spirit of goodwill and friendship, the rights and obligations of each in relation to the other concerning the use of these waters and of making provision for the settlement, in a cooperative spirit, of all such questions as may hereafter arise in regard to the interpretation or application of the provisions agreed upon herein, have resolved to conclude a Treaty in furtherance of these objectives, and for this purpose have named as their plenipotentiaries: The Government of India: Shri Jawaharlal Nehru, Prime Minister of India, and

The Government of Pakistan:

Field Marsha! Mohammad Ayub Khan, HP H.J., President of Pakistan; who, having communicated to each other their respective Full Powers and having found them in good and due form, have agreed upon the following Articles and Annexures

Article I

Definitions

As used in this Treaty: (1) The terms "Article" and "Annexure" mean respectively an Article of, and an Annexure to, this Treaty. Except as otherwise indicated, 243

references to Paragraphs are to the paragraphs in the Article or in the Annexure in which the reference is made. (2) The term "Tributary" of a river means any surface channel, whether in continuous or intermittent flow and by whatever name called, whose waters in the natural course would fall into that river, e.g. a tributary, a torrent, a natural drainage, an artificial drainage, a nadi, a nailah, a nai, a khad, a cho. The term also includes any sub-tributary or branch or subsidiary channel, by whatever name called, whose waters, in the natural course, would directly or otherwise flow into that surface channel. (3) The term “The Indus,” “ The Jhelum,” “The Chenab,” “The Ravi,” “The Beas,” “The Sutlej,” means the named river (including Connecting Lakes, if any) and all its Tributaries: Provided however that (i) none of the rivers named above shall be deemed to be a Tributary; (ii) The Chenab shall be deemed to include the river Panjnad; and (iii) The river Chandra and the river Bhaga shall be deemed to be Tributaries of The Chenab. (4) The term “Main” added after Indus, Jhelum, Chenab, Sutlej, Beas or Ravi means the main stem of the named river excluding its Tributaries, but including all channels and creeks of the main stem of that river and such Connecting Lakes as form part of the main stem itself. The Jhelum Main shall be deemed to extend up to Verinag, and the Chenab Main up to the confluence of the river Chandra and the river Bhaga. (5) The term "Eastern Rivers" means The Sutlej, The Beas and The Ravi taken together. (6) The Term "Western Rivers" means The Indus, The Jhelum and The Chenab taken together. (7) The Term "the Rivers" means all the rivers, The Sutlej, The Beas, The Ravi, The Indus, The Jhelum and The Chenab. (8) The term "Connecting Lake" means any lake which receives water from, or yields water to, any of the Rivers; but any lake which 244

occasionally and irregularly receives only the spill of any of the Rivers and returns only the whole or part of that spill is not a Connecting Lake. (9) The term "Agricultural Use" means the use of water for irrigation, except for irrigation of household gardens and public recreational gardens. (a) The term "Domestic Use" means the use of water for: (b) drinking, washing, bathing, recreation, sanitation (including the conveyance and dilution of sewage and of industrial and other wastes), stock and poultry, and other like purposes; (c) household and municipal purposes (including use for household gardens and public recreational gardens); and (d) industrial purposes (including mining, milling and other like purposes); but the term does not include Agricultural Use or use for the generation of hydroelectric power. (11) 'The term "Non-Consumptive Use" means any control or use of water for navigation, floating of timber or other property, flood protection or flood control, fishing 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 the generation of hydroelectric power. (12) The term "Transition Period" means the period beginning and ending as provided in Article II (6). (13) The term "Bank" means the International Bank for Reconstruction and Development. (14) The term "Commissioner" means either of the Commissioners appointed under the provisions of Article VII 1(1) and the term "Commission" means the Permanent Indus Commission constituted in accordance with Article VIII (3). (15) The term "interference with the waters" means: 245

(a) Any act of withdrawal there from; or (b) Any man-made obstruction to their flow which causes a change in the volume (within the practical range of measurement) of the daily flow of the waters: Provided however that an obstruction which involves only an insignificant and incidental change in the volume of the daily flow, for example, fluctuations due to afflux caused by bridge piers or a temporary by-pass, etc., shall not be deemed to be an interference with the waters. (16) The term "Effective Date" means the date on which this Treaty takes effect in accordance with the provisions of Article XII, that is, the first of April 1960.

Article II Provisions Regarding Eastern Rivers (1) All the waters of the Eastern Rivers shall be available for the unrestricted use of India, except as otherwise expressly provided in this Article. (2) Except for Domestic Use and Non-Consumptive Use, Pakistan shall be under an obligation to let flow, and shall not permit any interference with, the waters of the Sutlej Main and the Ravi Main in the reaches where these rivers flow in Pakistan and have not yet finally crossed into Pakistan. The points of final crossing are the following: (a) near the new Hasta Bund upstream of Suleimanke in the case of the Sutlej Main, and (b) about one and a half miles upstream of the syphon for the B-R-B-D Link in the case of the Ravi Main. (3) Except for Domestic Use, Non-Consumptive Use and Agricultural Use (as specified in Annexure B), Pakistan shall be under an obligation to let flow, and shall not permit any interference with, the waters (while flowing in Pakistan) of any Tributary which in its natural course joins the Sutlej Main or the Ravi Main before these rivers have finally crossed into Pakistan. (4) All the waters, while flowing in Pakistan, of any Tributary which, in its natural course, joins the Sutlej Main or the Ravi Main after these 246

rivers have finally crossed into Pakistan shall be available for the unrestricted use of Pakistan: Provided however that this provision shall not be construed as giving Pakistan any claim or right to any releases by India in any such Tributary. If Pakistan should deliver any of the waters of any such Tributary, which on the Effective Date joins the Ravi Main after this river has finally crossed into Pakistan, into a reach of the Ravi Main upstream of this crossing, India shall not make use of these waters; each Party agrees to establish such discharge observation stations and make such observations as may be necessary for the determination of the component of water available for the use of Pakistan on account of the aforesaid deliveries by Pakistan, and Pakistan agrees to meet the cost of establishing the aforesaid discharge observation stations and making the aforesaid observations. (5) There shall be a Transition Period during which, to the extent specified in Annexure H, India shall (i) limit its withdrawals for Agricultural Use, (ii) limit abstractions for storages, and (iii) make deliveries to Pakistan from the Eastern Rivers. (6) The Transition Period shall begin on 1st April, 1960 and it shall end on 31st March, 1970, or, if extended under the provisions of Part 8 of Annexure H, on the date up to which it has been extended. In any event, whether o^ not the replacement referred to in Article 1V(1) has been accomplished, the Transition Period shall end not later than 31st March, 1973. (7) If the Transition Period is extended beyond 31 March 1970, the provisions of Article V(5) shall apply. (8) If the Transition Period is extended beyond 31st March 1970, the provisions of Paragraph (5) shall apply during the period of extension beyond 31st March, 1970. (9) During the Transition Period, Pakistan shall receive for un-restricted use the waters of the Eastern Rivers which are to be released by India in accordance with the provisions of Annexure H. After the end of the Transition Period, Pakistan shall have no claim or right to releases by 247

India of any of the waters of the Eastern Rivers. In case there are any releases, Pakistan shall enjoy the unrestricted use of the waters so released after they have finally crossed into Pakistan: Provided that in the event that Pakistan makes any use of these waters, Pakistan shall not acquire any right whatsoever, by prescription or otherwise, to a continuance of such releases or such use.

Article III Provisions Regarding Western Rivers (1) Pakistan shall receive for unrestricted use all those waters of the Western Rivers which India is under obligation to let flow under the provisions of Paragraph (2). (2) India shall be under an obligation to let flow all the waters of the Western Rivers, and shall not permit any interference with these waters, except for the following uses, restricted (except as provided in item (c) (ii) of Paragraph 5 of Annexure C) in the case of each of the rivers, The Indus, The Jhelum and The Chenab, to the drainage basin thereof. (a) Domestic Use; (b) Non-Consumptive Use; (c) Agricultural Use, as set out in Annexure C; and (d) Generation of hydro-electric power, as set out in Annexure D. (3) Pakistan shall have the unrestricted use of all waters originating from sources other than the Eastern Rivers which are delivered by Pakistan into the Ravi or the Sutlej, and India shall not make use of these waters. Each Party agrees to establish such discharge observation stations and make such observations as may be considered necessary by the Commission for the determination of the component of water available for the use of Pakistan on account of the aforesaid deliveries by Pakistan. (4) Except as provided in Annexures D and E, India shall not store any water of, or construct any storage works on, the Western Rivers.

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Article IV Provisions Regarding Eastern Rivers and Western Rivers

(1) Pakistan shall use its best endeavours to construct and bring into operation, with due regard to expedition and economy, that part of a system of works which will accomplish the replacement, from the Western Rivers and other sources, of water supplies for irrigation canals in Pakistan which, on 15th August 1947, were dependent on water supplies from the Eastern Rivers. (2) Each Party agrees that any Non-Consumptive Use made by it shall be so made as not to materially change, on account of such use, the flow in any channel to the prejudice of the uses on that channel by the other Party under the provisions of this Treaty. In executing any scheme of flood protection or flood control each Party will avoid, as far as practicable, any material damage to the other Party, and any such scheme carried out by India on the Western Rivers shall not involve any use of water or any storage in addition to that provided tinder: Article III. (3) Nothing in this Treaty shall be construed as having the effect of preventing either Party from undertaking schemes of drainage, river training, conservation of soil against erosion and dredging, or from removal of stones, gravel or sand from the beds of the Rivers: Provided that (a) in executing any of the schemes mentioned above, each Party will avoid, as far as practicable, any material damage to the other Party; (b) any such scheme carried out by India on the Western Rivers shall not involve any use of water or any storage in addition to that provided under Article III; (c) except as provided in Paragraph (5) and Article VII (1)(b), India shall not take any action to increase the catchment area, beyond the area on the Effective Date, of any natural or artificial drainage or drain which crosses into Pakistan, and shall not undertake such construction or remodelling of any drainage or 249

drain which so crosses or falls into a drainage or drain which so crosses as might cause material damage in Pakistan or entail the construction of a new drain or enlargement of an existing drainage or drain in Pakistan; and (d) should Pakistan desire to increase the catchment area, beyond the area on the Effective Date, of any natural or artificial drainage or drain, which receives drainage waters from India, or, except in an emergency, to pour any waters into it in excess of the quantities received by it as on the Effective Date, Pakistan shall, before undertaking any work for purposes, increase the capacity of that drainage or drain to the extent necessary so as not to impair its efficacy for dealing with drainage waters received from India as on the Effective Date. (4) Pakistan shall maintain in good order its portions 01 the drainages mentioned below with capacities not less than the capacities as on the Effective Date:- (i) Hudiara Drain (ii) Kasur Nala (iii) Salimshah Drain (iv) Fazilka Drain. (5) If India finds it necessary that any of the drainages mentioned in Paragraph (4) should be deepened or widened in Pakistan, Pakistan agrees to undertake to do so as a work of public interest, provided India agrees to pay the cost of the deepening or widening. (6) Each Party will use its best endeavours to maintain the natural channels of the Rivers, as on the Effective Date, in such condition as will as far as practicable, any obstruction to the flow in these channels likely to material damage to the other Party. (7) Neither Party will take any action which would have the effect of diverting the Ravi Main between Madhopur and Lahore, or the Sutlej Main between Harike and Suleimanke, from its natural channel between high banks. (8) The use of the natural channels of the Rivers for the discharge of flood or other excess waters shall be free and not subject to limitation by 250

either Party, or neither Party shall have any claim against the other in respect of any damage caused by such use. Each Party agrees to communicate to the other Party, as far in advance as practicable, any information it may have in regard to such extraordinary discharges of water from reservoirs and flood flows as may affect the other Party. (9) Each Party declares its intention to operate its storage dams, barrages and irrigation canals in such manner, consistent with the normal operations of its hydraulic systems, as to avoid, as far as feasible, material damage to the other Party. (10) Each Party declares its intention to prevent, as far as practicable, undue pollution of the waters of the Rivers which might affect adversely uses similar in nature to those to which the waters were put on the Effective Date, and agrees to take all reasonable measures to ensure that, before any sewage or industrial waste is allowed to flow into the Rivers, it will be treated, where necessary, in such manner as not materially to affect those uses: Provided that the criterion of reasonableness shall be the customary practice in similar situations on the Rivers. (11) The Parties agree to adopt, as far as feasible, appropriate measures for the recovery, and restoration to owners, of timber and other property floated or floating down the Rivers, subject to appropriate charges being paid by the owners.(12) The use of water for industrial purposes under Article II (2), II(3) and III (2) shall not exceed: (a) in the case of an industrial process known on the Effective Date, such quantum of use as was customary in that process on the Effective Date; (b) in the case of an industrial process not known on the Effective Date: (i) such quantum of use as was customary on the Effective Date in similar or in any way comparable industrial processes; or (ii) if there was no industrial process on the Effective Date similar or in any way comparable to the new process, such quantum of use as would not have a substantially adverse effect on the other Party.

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(13) Such part of any water withdrawn for Domestic Use under the provisions of Articles II (3) and III (2) is subsequently applied to Agricultural Use shall be accounted for as part of the Agricultural Use specified in Annexure B and Annexure C respectively; each Party will use its best endeavours to return to the same river (directly or through one of its Tributaries) all water withdrawn there from for industrial purposes and not consumed either in the industrial processes for which it was withdrawn or in some other Domestic Use. (14) In the event that either Party should develop a use of the waters of the Rivers which is not in accordance with the provisions of this Treaty, that Party shall not acquire by reason of such use any right, by prescription or otherwise, to a continuance of such use. (15) Except as otherwise required by the express provisions of this Treaty, nothing in this Treaty shall be construed as affecting existing territorial rights over the waters of any of the Rivers or the beds or banks thereof, or as affecting existing property rights under municipal law over such waters or beds or banks.

Article V Financial Provisions (1) In consideration of the fact that the purpose of part of the system of works referred to in Article IV (1) is the replacement from the Western Rivers and other sources, of water supplies for irrigation canals in Pakistan which, on 15th August 1947, were dependent on water supplies from the Eastern Rivers, India agrees to make a fixed contribution of Pounds Sterling 62^, 060,000iowardsthe costs of these works. The amount in Pounds Sterling of this contribution shall remain unchanged irrespective of any alteration in the par value of any currency. (2) The sum of Pounds Sterling 62,060,000 specified in Paragraph (1) shall be paid in ten equal annual instalments on the 1sf of November of each year The first of such annual instalments shall be paid on 1st November 1960, or if the Treaty has not entered into force by that date, then within one month after the Treaty enters into force. 252

(3) Each of the instalments specified in Paragraph (2) shall be paid to the Bank for the credit of the Indus Basin Development Fund to be established and administered by the Bank, and payment shall be made in Pounds Sterling, or in such other currency or currencies as may from time to time be agreed between India and the Bank. (4) The payments provided for under the provisions of Paragraph (3) shall be made without deduction or set-off on account of any financial claims of India on Pakistan arising otherwise than under the provisions of this Treaty: Provided that this provision shall in no way absolve Pakistan from the necessity of paying in other ways debts to India which may be outstanding against Pakistan. (5) If, at the request of Pakistan, the Transition Period is extended in accordance with the provisions of Article 11(6) and of Part 8 of Annexure H, the Bank shall thereupon pay to India out of the Indus Basin Development Fund the appropriate amount specified in the Table below:- Table Period of Aggregate Payment to India Extension of Transition Period One year £Stg. 3,125,000 Two years £ Stg. 6,406,250 Three years £Stg. 9,850,000

(6) The provisions of Article IV(1) and Article V(1) shall not be construed as conferring upon India any right to participate in the decisions as to the system of works which Pakistan constructs pursuant to Article IV(1) or as constituting an assumption of any responsibility by India or as an agreement by India in regard to such works. (7) Except for such payments as are specifically provided for in this Treaty, neither Party shall be entitled to claim any payment for observance of the provisions of this Treaty or to make any charge for water received from it by the other Party.

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Article VI Exchange of Data

(1) The following data with respect to the flow in, and utilisation of the waters of, the Rivers shall be exchanged regularly between the Parties:- (a) Daily (or as observed or estimated less frequently) gauge and discharge data relating to flow of the Rivers at all observation sites. (b) Daily extractions for or releases from reservoirs. (c) Daily withdrawals at the heads of all canals operated by government or by a government agency (hereinafter in this Article called canals), including link canals. (d) Daily escapages from all canals, including link canals. (e) Daily deliveries from link canals. These data shall be transmitted monthly by each Party to the other as soon as the data for a calendar month have been collected and tabulated, but not later than three months after the end of the month to which they relate: Provided that such of the data specified above as are considered by either Party to be necessary for operational purposes shall be supplied daily or at less frequent intervals, as may be requested. Should one Party request the supply of any of these data by telegram, telephone, or wireless, it shall reimburse the other Party for the cost of transmission. (2) If, in addition to the data specified in Paragraph (1) of this Article, either Party requests the supply of any data relating to the hydrology of the Rivers, or to canal or reservoir operation connected with the Rivers, or to any provisions of this Treaty, such data shall be supplied by the other Party to the extent that these are available.

Article VII

Future Co-operation (1) The two Parties recognize that they have a common interest in the optimum development of the Rivers, and, to that end, they declare their 254

intention to co-operate, by mutual agreement, to the fullest possible extent. In particular:- (a) Each Party, to the extent it considers practicable and on agreement by the other Party to pay the costs to be incurred, will, at the request of the other Party, set up or install such hydrologic observation stations within the drainage basins of the Rivers, and set up or install such meteorological observation stations relating thereto and carry out such observations thereat, as may be requested, and will supply the data so obtained. (b) Each Party, to the extent it considers practicable and on agreement by the other Party to pay the costs to be incurred, will, at the request of the other Party, carry out such new drainage works as may be required in connection with new drainage works of the other Party. (c) At the request of either Party, the two Parties may, by mutual agreement, co-operate in undertaking engineering works on the Rivers. The formal arrangements, in each case, shall be as agreed upon between the Parties. (2) If either Party plans to construct any engineering work which would cause interference with the waters of any of the Rivers and which, in its opinion, would affect the other Party materially, it shall notify the other Party of its plans and shall supply such data relating to the work as may be available and as would enable the other Party to inform itself of the nature, magnitude and effect of the work. If a work would cause interference with the waters of any of the Rivers but would not, in the opinion of the Party planning it, affect the other Party materially, nevertheless the Party planning the work shall, on request, supply the other Party with such data regarding the nature, magnitude and effect, if any, of the work as may be available.

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Article VIII

Permanent Indus Commission (1) India and Pakistan shall each create a permanent post of Commissioner for Indus Waters, and shall appoint to this post, as often as a vacancy occurs, a person who should ordinarily be a high-ranking engineer competent in the field of hydrology and water use. Unless either Government should decide to take up any particular question directly with the other Government, each Commissioner will be the representative of his Government for all matters arising out of this Treaty, and will serve as the regular channel of communication on all matters relating to the implementation of the Treaty, and, in particular, with respect to (a) the furnishing or exchange of information of data provided for in the Treaty; and (b) the giving of any notice or response to any notice provided for in the Treaty. (2) The status of each Commissioner and his duties and responsibilities towards his Government will be determined by that Government. (3) The two Commissioners shall together form the Permanent Indus Commission. (4) The purpose and functions of the Commission shall be to establish and maintain co-operative arrangements for the implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers and, in particular, (a) to study and report to the two Governments on any problem relating to the development of the waters of the Rivers which may be jointly referred to the Commission by the two Governments: In the event that a reference is made by one Government alone, the Commissioner of the other Government shall obtain the authorization of his Government before he proceeds to act on the reference; (b) to make every effort to settle promptly, in accordance with the provisions of Article IX(1), any question arising there under; 256

(c) to undertake, once in every five years, a general tour of inspection of the Rivers for ascertaining the facts connected with various developments and works on the Rivers; (d) to undertake promptly, at the request of either Commissioner, a tour of inspection of such works or sites on the Rivers as may be considered necessary by him for ascertaining the facts connected with those works or sites; and (e) to take, during the Transition Period, such steps as may be necessary for the implementation of the provisions of Annexure H. (5) The Commission shall meet regularly at least once a year, alternately in India and Pakistan. This regular annual meeting shall be held in November or in such other month as may be agreed upon between the Commissioners. The Commission shall also meet when requested by either Commissioner. (6) To enable the Commissioners to perform their functions in the Commission, each Government agrees to accord to the Commissioner of the other Government the same privileges and immunities as are accorded to representatives of members States to the principal and subsidiary organs of the United Nations under Sections 11,12 and 13 of Article IV of the Convention on the Privileges and Immunities of the United Nations (dated 13th February, 1946) during the periods specified in those Sections. It is understood and agreed that these privileges and immunities are accorded to the Commissioners not for the personal benefit of the individuals themselves but in order to safeguard the independent exercise of their functions in connection with the Commission; consequently, the Government appointing the Commissioner not only has the right but is under a duty to waive the immunity of its Commissioner in any case where, in the opinion of the appointing Government, the immunity would impede the course of justice and can be waived without prejudice to the purpose for which the immunity is accorded.

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(7) For the purposes of the inspections specified in Paragraph (4) (c) and (d), each Commissioner may be accompanied by two advisers or assistants to whom appropriate facilities will be accorded. (8) The Commission shall submit to the Government of India and to the Government of Pakistan, before the first of June of every year, a report on its work for the year ended on the preceding 31st of March, and may submit to the two Governments other reports at such times as it may think desirable. (9) Each Government shall bear the expenses of its Commissioner and his ordinary staff. The cost of any special staff required in connection with the work mentioned in Article VII (1) shall be borne as provided therein. (10) The Commission shall determine its own procedures.

Article IX

Settlement of Differences and Disputes (1) Any question which arises between the Parties concerning the interpretation or application of this Treaty or the existence of any fact which, if established, might constitute a breach of this Treaty shall first be examined by the Commission, which will endeavours to resolve the question by agreement. (2) If the Commission does not reach agreement on any of the questions mentioned in Paragraph (1), then a difference will be deemed to have arisen, which shall be dealt with as follows: (a) Any difference which, in the opinion of either Commissioners, falls within the provisions of Part 1 of Annexure F shall, at the request of either Commissioner, be dealt with by a Neutral Expert in accordance with the provisions of Part 2 of Annexure F; (b) If the difference does not come within the provisions of Paragraph (2) (a), or if a Neutral Expert, in accordance with the provisions of Paragraph 7 of Annexure F, has informed the Commission that, in his opinion, the difference, or a part 258

thereof, should be treated as a dispute, then a dispute will be deemed to have arisen which shall be settled in accordance with the provisions of Paragraph (3), (4) and (5): Provided that, at the discretion of the Commission, any difference may either be dealt with by a Neutral Expert in accordance with the provisions of Part 2 of Annexure F or be deemed to be a dispute to be settled in accordance with the provisions of Paragraph (3), (4) and (5), or may be settled in any other way agreed upon by the Commission. (3) As soon as a dispute to be settled in accordance with this and the succeeding paragraphs of this Article has arisen, the Commission shall, at the request of either Commissioner, report the fact to the two Governments, as early as practicable, stating in its report the points on which the Commission is in agreement and the issues in dispute, the views of each Commissioner on these issues and his reasons there for. (4) Either Government may, following receipt of the report referred to in Paragraph (3), or if it comes to the conclusion that this report is being unduly delayed in the Commission, invite the other Government to resolve the dispute by agreement. In doing so it shall state the names of its negotiators and their readiness to meet with the negotiators to be appointed by the other Government at a time and place to be indicated by the other Government. To assist in these negotiations, the two Governments may agree to enlist the services of one or more mediators acceptable to them. (5) A Court of Arbitration shall be established to resolve the dispute in the manner provided by Annexure G (a) upon agreement between the Parties to do so; or J V (b) at the request of either Party, if, after negotiations have begj" pursuant to Paragraph (4), in its opinion the dispute is not iikH\ to be resolved by negotiation or mediation; or (c) at the request of either Party, if, after the expiry of one month following receipt by the other Government of the invitation referred to in Paragraph (4), that Party comes to the conclusion that the other Government is unduly delaying the negotiations. 259

(6) The provisions of Paragraph (3), (4) and (5) shall not apply to any difference while it is being dealt with by a Neutral Expert.

Article X

Emergency Provision If, at any time prior to 31st March, 1965, Pakistan should represent to the Bank that, because of the outbreak of large-scale international hostilities arising out of causes beyond the control of Pakistan, it is unable to obtain from abroad the materials and equipment necessary for the completion, by 31st March 1973, of that part of the system of works referred to in Article IV(1) which relates to the replacement referred to therein, (hereinafter referred to as the "replacement element") and if, after consideration of this representation in consultation with India, the Bank is of the opinion that (a) these hostilities are on a scale of which the consequence is that Pakistan is unable to obtain in time such materials and equipment as must be procured from abroad for the completion, by 31st March 1973, of the replacement element, and (b) since the Effective Date, Pakistan has taken all reasonable steps to obtain the said materials and equipment and, with such resources of materials and equipment as have been available to Pakistan both from within Pakistan and from abroad, has carried forward the construction of the replacement element with due diligence and all reasonable expedition, the Bank shall immediately notify each of the Parties accordingly. The Parties undertake, without prejudice to the provisions of Article Xll (3) and (4), that, on being so notified, they will forthwith consult together and enlist the good offices of the Bank in their consultation, with a view to reaching mutual agreement as to whether or not, in the light of all the circumstances then prevailing, any modifications of the provisions of this Treaty are appropriate and advisable and, if so, the nature and the extent of the modifications.

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Article XI General Provisions

(1) It is expressly understood that (a) this Treaty governs the rights and obligations of each Party in relation to the other with respect only to the use of the waters of the Rivers and matters incidental thereto; and (b) nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a recognition or waiver (whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the Parties other than those rights or claims which are expressly recognized or waived in this Treaty. Each of the Parties agrees that it will not invoke this Treaty, anything contained therein, or anything arising out of the execution thereof, in support of any of its own rights or claims whatsoever or in disputing any of the rights or claims whatsoever of the other Party, other than those rights or claims which are expressly recognized or waived in this Treaty. (2) Nothing in this Treaty shall be construed by the Parties as in any way establishing any general principle of law or any precedent. (3) The rights and obligations of each Party under the Treaty shall remain unaffected by any provisions contained in, or by anything arising out of the execution of, any agreement establishing the Indus Basin Development Fund.

Article XII

Final Provisions (1) This Treaty consists of the Preamble, the Articles hereof and Annexures A to H hereto, and may be cited as "The Indus Waters Treaty 1960". (2) This Treaty shall be ratified and the ratifications thereof shall be exchanged in New Delhi. It shall enter into force upon the exchange of

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ratifications, and will then take effect retrospectively from the first of April 1960. (3) The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments. (4) The provisions of this Treaty, or the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.

IN WITNESS WHEREOF the respective Plenipotentiaries have signed this Treaty and have hereunto affixed their seals.

Done in triplicate in English at Karachi on this Nineteenth day of September 1960.

FOR THE GOVERNMENT OF INDIA:

(Sd) Jawaharlal Nehru ……………………

FOR THE GOVERNMENT OF PAKISTAN:

(Sd) Mohammad Ayub Khan ……………. Field Marshal, HP., H.J.

FOR THE GOVERNMENT OF PAKISTAN:

(Sd) Mohammad Ayub Khan…………………. Field Marshal, HP., H.J.

FOR THE INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT for the purposes specified in Articles V and X and Annexures F, G and H: (Sd) W.A. B. Iliff. 262

APPENDIX H

Chronology of Water Conflicts from 1947 to 1960 Nature of Date Countries Event Conflict 1947 India, Pakistan Disputes aroused regarding The exact location of the boundary between both Border countries. Two of those disputes related to the land, which was in close vicinity of, delineation and or formed a part of two canal headworks. One at Ferozepur, and other at Territorial Suliamanke. These dispute created local tension and there were occasional raids dispute and at some key places. Armies stood face to face across a barbed wire barrage or some other obstruction. East Punjab cut off supplies to every single Canal that crossed the boundary line. April 1, 1948 India-(East East Punjab proclaimed that its determination not to restore flow of these canals Water Punjab) unless West Punjab recognised that it had no rights to the water. Such recognition Ownership Pakistan-(West was not given and the canal remained closed. Resulting in acute distress for farmers Punjab) dependent upon them. April-June East-Punjab, West Pakistan began digging a canal to by-pass the Indian headworks over the Deplore Water Control 1948 Punjab river. Pakistan defended it action. As a precautionary measure. West Punjab indicated to east Punjab that if digging of the canal continued. The government of east Punjab would have to seriously consider what action they should take to protect their vital interest. Pakistan Decided to stop the construction.

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May 1948 East Punjab, West An East Punjab minister threatened that supplies of water to deplore canal would be Water Tool Punjab discontinued, If the exchange of prisoners were not affected promptly. Pakistan complained of non-supply of water to a few Minor canals. India replied that these had not been included in the Simla Agreement, which preceded and formed on the Basis of the May 1948, agreement. 1950 India – Pakistan Pakistan had never before asked for supply of water to these channels since the Water agreement and Punjab (India) was under no Obligation to supply them with it. Ownership August 19, India – Pakistan Pakistan attacks Indian plan to divert vital water from Kashmir. Water 1951 Allocation 1952 India – Pakistan India reduced the supply of water to Pakistan (despite the 1952, agreement). Water Allocation 1953 India – Pakistan Pakistan irrigation began to complaint that India was not supplying the full quota of Water water it was Supposed to be. Allocation 1954 India – Pakistan Opening of the Bhakra on July 8, 1954, Pakistan considered the action to be a Water Control serious violation of the agreement of March 1952, and her Prime Minister was led to describe the diversion of waters from the Sutlej as a potential threat to peace. 1954-57 India – Pakistan Provincial allocation of water to keep Pakistan going were agreed with India, but Water India continued to interfere with or reduce the flow of water to Pakistan. Allocation 1955 India – Pakistan Pakistan through their military picket interferes with the repair work being Border executed by India, making political claims to the territory near the head works. It delimitation was until about the tenth of march 1956, that work could proceed. Some days later and territorial

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Pakistan armed police opened the fire on Indian labour and India armed personal dispute replied in self-defence. Cease fire was arranged on 19th March. August 1957 India – Pakistan India protested to the security council against the execution of the Mangla Dam Territorial project “as a further instance of consolidation by the Pakistan Government of its Dispute authority over the Indian territory of Jammu and Kashmir” under illegal possession of Pakistan. March, 1958 India – Pakistan India through its Minister of irrigation and power served notice that starting in Water 1962; it would withdrawal all the water which would normally flow into Pakistan. Allocation 1958 India – Pakistan The Government Of Pakistan Accused India of Withholding “Pakistan Water Share Of Historic Supplies Of Water From The Beas And The Sutlej Of 8th Of Allocation June, The Dawn 8th of June stated: “the Pakistan Government have decided to declare emergency in the west wing” and interpreted Indian action as an undeclared war. Source: Jermy Allouche, 2005.

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Chronology of Water Conflicts in the Indus Basin after the IWT

Nature of Date Countries Event Conflict 1965 India, Pakistan India unilaterally stopped the flow of the eastern rivers (the Ravi, the Beas and Water Control the Sutlej). Causing serious damage to Pakistan harvest. It was only in January 1966, during and after the Tashkent Agreement that the three eastern tributaries were released again into the Indus.

1965 India, Pakistan During the war of 1965 water was used as military tool. The Indian troops Military Tool destroyed the banks of water channels and stopped the advance of the Pakistani military towards Amritsar. Pakistan, army used the Bambanwala Ravi Bedian (BRB) link canal in the Sialkot-Lahore sector as fortification of its defences.

1968 India, Pakistan In the 8th year of the treaty India started the construction of the Salal Project on Water Control the Chenab River. Under the terms of the Treaty, India submitted its plan to the Indus Commission for Pakistan for approval in 1968. In 1974 Pakistan officially objected to the design of Salal Project, arguing that it does not confirm to the criteria for design of such hydroelectric projects laid down in the treaty. After various discussions India agreed to make some changes in the design of the dam including reducing the height. Following agreement was signed in April 1978.

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1984 India, Pakistan India started the construction of Tulbul Navigation Project (Wullar Barrage) near Water Control Baramulla on Jhelum river, with storage capacity of 0.3 MAF and also planned power generation of 960 MW. After so much resistance from Pakistan, construction was stopped in 1987. Pakistan protested it as clear violation of Article I (II) and Article III (8) IWT. After various discussions held between the two parties; remains the oldest and longest lasting water dispute between India and Pakistan.

1988 India, Pakistan The Kishanganga 330 MW hydroelectric Project effects diversion a considerable Water Control quantity of water of Kishanganga

1992 India, Pakistan The Baglihar Hydropower Project on the Chenab River in Doda district divided Water into two phases has 900 MW of electricity installation capacity. The design Releasing and of the dam submitted to Pakistan (in 1992) Pakistan protested the dam design, Water Control files a case in World Bank. Raymond Lafitte, appointed (2005) Neutral Expert who give his verdict in February (2008) dismissing Pakistan objections and calling for reduction in dam height by 1.5m, called the dispute a minor differences of opinion/un-understanding. Pakistan saw the differences of opinion/un-understanding. Pakistan saw the and quantity of the fellow of the river, to the Pakistan’s disadvantage.

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2002 India, Pakistan After much dallying India responds to the objections raised by Pakistan (in 2002) Water Control on Uri II, Its main objections were that project violated the provisions (a) (c) (d) (e) and (f) of Annexure E of the treaty. Various meetings were held between Indus Commissioners but certain objections remained unresolved. Pakistan questions were mainly related to design of the dam. 2008 India, Pakistan Pakistan raised objections on the Chutak Hydropower Project, as the project is a Water Control cause of reduction of flow to Pakistan. 2010 India, Pakistan Nemo-Bazgo Hydropower Project is 57m (187 feet) high concrete gravity, which Water Control is under construction on Indus River in Ladakh. India started the construction of the dam in November 2006 completed but still to be commissioned. Pakistan objected on the construction of dam and decided to raise the issue in international court of arbitration. Issue in international court of arbitration. 2013 India, Pakistan International Court of Arbitration announced its Award regarding the Water Control Kishinganga Hydroelectric plant.

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