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RESOLUTION OF THE INDUS WATER DISPUTE

By Dr. AB Thapa

Mr. Eugene Black then President of the World Bank was concerned that the continuation of the Indus dispute was bound to have serious repercussions on the economic well-being of both India and Pakistan and also the peace and security in the South Asian Sub-continent. The Indus Dispute was then the flash point in Indo-Pakistan conflict that was going to end up into another war after the first war over the control of Kashmir. In 1952, Mr. Black offered the good offices of the Bank in an attempt to resolve the dispute. The Indus Waters Treaty was the outcome of eight years of discussion and negotiation between the Governments of India and Pakistan, carried out under the auspices of the World Bank that brought to an end the longstanding dispute between these two countries. The conclusion of the Indus Waters Treaty was almost universally hailed as an important event in international relations.

The Indus River

The main Indus river; fed by Himalayan snows and torrential monsoon rains, brings into the plains as much water as the Nile at Aswan . Next to the Indus , in terms of water supply, rank the three tributaries, the Kabul on the west and the Jhelum and the Chenab on the east. These three tributaries and the Sutlej , including the Beas which falls into the former are the large rivers.

Existing Use of Water

The Indus is the river of the north-west Indian Sub-continent. Irrigation had been practiced in the Indus basin from very early period; but until about the middle of the nineteenth century, the basin was largely an arid, fringed with narrow strip of cultivation along the foot-hills and six even narrower strips along the valleys of the rivers. The development in a period of about one hundred years preceding the partition of the Indian sub-continent in 1947 had converted the Indus basin into an intensively cultivated area, with 26 million acres irrigated by a large network of canals, some of which carry more water than the Thames River in flood or the average flow in the Potomac River near Washington D.C. This was by far the largest irrigated area on any one river system in the world. The United States of America had at that time only about 23 million irrigated acres.

The Dispute

With the partition of India (and of the Indus basin) in 1947 the dispute became an issue between East Punjab and West Punjab . In April 1948, it was referred to the Governments of India and Pakistan and was thereafter an Indo-Pakistan affair.

The Indo-Pakistan dispute was discussed in the Security Council. M. Zafrulla Khan, the Pakistan representative in the Security Council presented about it during a Security Council debate on the 16 th December 1952 . The partial text is given below:

"The partition of the Punjab cut across the river system of the Province…….The partition line was so drawn that two of the rivers - Sutlej together with its tributary Bias, and Ravi - while originating in India, later on flow into Pakistan….On April 1, 1948…. India turned off the waters of these rivers which used to flow into Pakistan .."

India's position on the water right principle she is subscribing to has been clearly stated in the Indo-Pakistan Agreement on Indus (Interim) signed on the 4 th May, 1948. It is stated:

"..the propriety rights in the waters of the rivers in East Punjab (India) vest wholly in the East Punjab.."

West Punjab ( Pakistan ) disputed India 's contention. Its view being that in accordance with international law and equity West Punjab had a right to the waters of the East Punjab rivers. Finally the Indus dispute was resolved through the World Bank’s good offices. India and Pakistan came to an agreement. The Indus Treaty was signed on September 19, 1960 . The Indus Treaty provided that the waters of the contentious rivers Ravi, Beas and Sutlej would be for the exclusive use of India. However, India would have to pay Pakistan some compensation for the construction of projects to tap other rivers in Pakistan to replace the supply from the above three rivers.

Role of the World Bank

Mr. Eugene Black ( then President of the World Bank) was concerned that the continuation of the Indus dispute, and the imminent possibility of its escalation, was bound to have serious repercussions on the economic well-being of both countries, in which the Bank had an active institutional interest. Accordingly, in 1952, Mr. Black offered the good offices of the Bank in an attempt to resolve the dispute. The offer was accepted by both the countries.

In 1952 the World Bank entered the picture as a good officer. After two years in early 1954, the Bank put forward a proposal embodying the main principles for a settlement; the negotiation virtually broke down. They were resumed by the end of the year under the direct guidance of the Bank management.

Sir William Iliff, former Vice-President of the World Bank has written that the Indus Waters Treaty was the outcome of eight years of discussion and negotiation between Governments of India and Pakistan , carried on under the auspices of the World Bank. It brought to an end the longstanding dispute between India and Pakistan abut the use, for irrigation and hydropower, of the waters of the Indus system of rivers.

The Indus Treaty

India had been subscribing all along to the principle that water belongs to the country where it originates. India turned off the waters which used to flow into Pakistan to irrigate lands. India took such action according to N.D. Gulhati (the Indian negotiator for the Treaty on the Indus) because the East Punjab (India) was anxious to establish its exclusive ownership. In the final treaty on the Indus the principle of establishment of right due to prior appropriation of water was ignored. The Treaty went in favour of a principle based on the sovereignty of a state over its national domain. The Indus Treaty might have set a precedent for the future. But in the Article-XI a special provision to restrict its use has been made. So it could not become a law. The Article XI of the Indus Treaty has been presented below:

It is expressly understood that
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
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 any thing 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 claimswhatsoever of the other Party, other than those rights or claims which are expressly recognized or waived in this Treaty.

Nothing in this Treaty shall be construed by the Parties as in any way establishing any general principle of law or any precedent.
The rights and obligations of each Party under this Treaty shall remain unaffected by any provisions contained in, or by anything arising out of this execution of, any agreement establishing the Indus Basin Development Fund.

The Ganges Issue

India needed a greater part of the Ganges flow in the dry seasons for flushing the silts into the sea from the port area in Calcutta . India must have considered that it is allowed to take up a scheme to divert the flow because of her sovereignty right over the domain. However, the Ganges is a navigable river. The diversion would have violated the International Barcelona Convention on the regime of navigable waterways. This convention was ratified by British Empire that included India also in 1922. India to free herself to undertake the Ganges diversion scheme, denounced the Barcelona Convention to take effect from 26 March, 1957 . Soon after that India commenced the Ganges diversion scheme at Farakka in 1960s.

Very recently the Treaty of the Ganges water at Farakka has been concluded between India and Bangladesh . This Treaty has a similarity to the Indus Treaty in one important matter of great interest to us. It contains at the very beginning in the preamble of the Treaty itself a statement that this Treaty will not affect the rights and entitlements of either country other than those covered by the Treaty and will not establish any general principles of law or precedent.

Precedent or General Principle of Law

The Indus Treaty and the Treaty of Ganges could not be construed as establishing law or precedent because of the provision in the treaty to restrict such use. However, these treaties can help us to come to some important conclusions. We can infer from these treaties the recognition of the principle that in the absence of imposition of restriction, a treaty may be construed to imply the following:

It can set a general principle of law. It can service as a precedent for similar cases in future. Any one of the Parties can invoke a treaty, anything contained therein, or anything arising out of the execution thereof, in support of any of its own rights or claims whatsoever or disputing any of the rights or claims whatsoever of the other party.

Why a Treaty is Necessary?

Our mega projects are too big for our exclusive use. It is necessary to enter into an agreement with India to recover full benefits from any of our mega projects. The Government of India must agree that the hydroelectric power produced in Nepal would get unhindered access to their market. These projects, on top of the power benefit, would provide significantly large downstream benefits to India. Nepal has every right to seek a fair share of the downstream benefits. We can draw a lesson from the Columbia River Treaty between the United States and Canada that provided Canada 50% of downstream benefits accrued from the use of regulated flow of the Columbia river in the United States.

(Dr. Thapa writes on water resources)