Should India revisit the Indus treaty?

INDIANS LAMENT – "We give water, but Pakistan exports blood". Capitalising on this, the government held out a threat of termination of the Indus treaty after the terrorist attack in Uri in 2016 and now, after the Pulwama suicide bomb that killed forty Central Reserve Police Force personnel on their way to patrolling duty.

Water distribution is not simple arithmetic. It is not even equal distribution, but equitable distribution. Basin planning and attendant treaties are complex constructs. Flowing water in its natural state belongs to none for one to have possessory rights.

The unilateral termination of a treaty is not an unknown coercive method in international diplomacy. States do not consider the legal risk arising from the termination as significant, since there is no international judicial forum with compulsory jurisdiction to adjudicate on the legality of the termination and enforce its decision. Therefore, if the government has adopted this diplomatic strategy, there is nothing inappropriate in it generally. However, this article confines its examination to the questions of the legality of the termination of the treaty in international law and its injurious impact on the ground. 

A Treaty of indefinite duration

What is Indus treaty ? After the partition and independence in 1947, India and Pakistan negotiated and finally entered into a treaty in 1960, under the aegis of the World Bank, defining their respective dominion over the vast Indus basin water flowing into six rivers – Indus, Jhelum and Chenab – the Western Rivers and Ravi, Beas and Satluj – the Eastern Rivers. The broad contours of the treaty are: (i) India was allowed to use the waters of Eastern Rivers exclusively (Art II); and (ii) Pakistan was granted the right to receive most of the natural flow of the Western Rivers. In addition,  India was also conferred some limited rights in the Western Rivers to construct reservoirs for 3.6 MAF to (a) produce power by run of the river technology; and (b) to supply water for irrigation in Jammu and Kashmir (Art III). The Indus treaty does not provide for unilateral termination, withdrawal or denunciation. It is a treaty of indefinite duration.

India has an arguable case for the revision of the treaty (as distinguished from a unilateral termination or withdrawal) by bilateral discussion. The Indus treaty, after six decades, has increasingly come under challenges.

The Indus treaty was hailed around the world as a great diplomatic success. India got water to meet its needs, including trans-basin lands in the desert in Rajasthan. However, the critics called it a bad bargain and pointed out that the Western Rivers with abundant water estimated as 136 MAF annually had gone to Pakistan, while the Eastern Rivers, which have only 33 MAF of water annually were with India, despite India being an upper riparian State. The problem with the  criticism is that  water distribution is not simple arithmetic. It is not even equal distribution, but equitable distribution. Basin planning and attendant treaties are complex constructs which have troubled even great minds who think alike. Flowing water in its natural state belongs to none for one to have possessory rights.