Abrogate Indus Water Treaty?

For the past one decade, successive state government and some individuals have been seeking abrogation of Indus Water Treaty (IWT). The National Conference government, according to Times of India report (July 17, 2002) even submitted a memorandum urging New Delhi to abrogate the treaty in the best interests of Kashmiris. However, the memorandum was ignored for political reasons. The treaty invoked heated discussions in the legislative assembly during the Peoples Democratic Party (PDP)-Congress rule. As the debate continues political commentators believe seeking abrogation of IWT is as good as seeking independence.

Can IWT be abrogated? Honouring the IWT has become a compulsion for New Delhi.  In any case, legally speaking, it is virtually impossible for India to abrogate the treaty. Article XII (4) states that ‘provisions of this treaty shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.’

The treaty does not provide an exit clause for India per se. Article 54 of Protocol I (1977) to the Geneva Convention (1949) prohibits any measures that could result in the starvation of people. It specifically refers to water resources and irrigation works.

Abrogation is bound to incite reactions from the World Bank and the countries that were party to the treaty and have provided funds.

Therefore, despite the demand of abrogation, no policy maker in New Delhi is ever likely to contemplate this move. The act of abrogation on the part of India could cause insecurity among the other countries that are lower riparian to India. India’s relations with its neighbours would also be affected, as India also has water treaties with Nepal and Bangladesh.

This is the reason  India did not seek unilateral abrogation of the treaty in the wars of 1965, 1971 and 1999; therefore, India is not likely to consider abrogation in the event of any future war as well.

Realising the importance of the IWT, the people who drafted the Treaty did not keep an exit clause in it. However, Article XII of the IWT provides for a modification of the Treaty and this is where the grievances of the people of Jammu Kashmir can be addressed without prejudicing the greater interests of the two sub-continental giants.  
The Treaty was signed at Karachi by Field Marshal Muhammad Ayub Khan, the then President of Pakistan, Jawaharlal Nehru, the then Indian Prime Minister and World Bank on 19th September, 1960. The salient features of the treaty are:
Provisions regarding the Western Rivers:
(i) Pakistan shall receive for unrestricted use all those waters of the western rivers.

(ii) 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.
Provisions regarding the Eastern and western Rivers:
(i) Pakistan shall use its best endeavours to construct and bring into operation a system of works that will accomplish the replacement from the Western rivers (and other sources of) the water supplies for irrigation canals in Pakistan, which on 15th August, 1947 were dependent on water supplies from the Eastern rivers.

(ii) The use of the natural channels of the rivers for the discharge of flood or other access waters shall be free and not subject to limitation by either party, or neither party shall have any claim against the other in respect of any damage caused by such use.

(iii) Each party declares its intention to prevent, as far as practicable, undue pollution of the waters and agrees to ensure that, before any sewage or industrial waste is allowed to flow into the rivers, it will be treated where necessary, in such manners as not materially to affect those uses.
According to article 11 of the treaty, Pakistan has to receive, for unrestricted use, the waters of western rivers (Indus, Jehlum, Chenab) and India is under an obligation to let flow all the waters of these rivers without harnessing it by constructing dams.
Due to restrictions imposed on tapping of water resources, in conjunction with faltering policies of successive state governments, Jammu Kashmir has been unable to grow to the optimum potential of its agriculture and electricity sectors.

The Treaty permits building storage aggregating 3.6 MAF on the three rivers of the Indus, Jhelum and China. – Of the 3.6 MAF water storage capacities, 1.6 MAF is for hydropower, 0.75 MAF for flood moderation and 1.25 MAF for general storage for non-consumptive uses including power generation.

The Treaty permits additional irrigation of just 1.21 lakh hectares from the effective date, 1 April 1960. Thus particular clause has dealt a severe blow to agriculture in Jammu Kashmir. While India managed to irrigate a large portion of Rajasthan, Pakistan on the other hand developed the largest irrigated area in the world, a piece of Pakistan’s desert that is bigger than England. However, the fertile land of Kashmir is craving for irrigation. (News International March 23, 2005)
Extensive research done under the aegis of the Colombo-based International Water Management Institute (IWMI) and Mumbai-based Sir Ratan Tata Trust revealed that once a lively hydraulic society state is facing growing water scarcity and ecological degradation with its vast biological capital eroding with depleting glaciers and shrunk water bodies all now lying in a decrepit state in Kashmir.
According to columnist M L Kak the state suffers losses to the tune of 6000 Cr annually because of IWT. The total losses, therefore, can be safely pegged at 24, 36000 Cr. (Tribune, May 1, 2001).
Shall the state seek abrogation of IWT? Seeking abrogation can be a good political slogan but it will not work. It is as good as seeking independence. Well known political commentator, Dr Sheikh Showkat Hussain, in one of his articles in Greater Kashmir writes: “State administration and those who moan the negative impact of Indus water treaty can better serve people of Kashmir by looking for protection of Kashmir interests within the ambit of the treaty rather than dreaming beyond it. Jammu and Kashmir must pursue for its share within what India has got out of this treaty. India has managed to get exclusive rights over waters of Satluj, Beas and Ravi where as J&K has lost its capability of exploiting waters of Chenab and Jhelum. State of Jammu and Kashmir has not been compensated for the benefits which Punjab ,Haryana and Rajasthan got out of this treaty. Infact whole of the green revolution in India is indebted to Indus water treaty. This seems to be the only positive impact of occupation of Kashmir in favour of India.

There has been a lot of talk about monetary compensation but such compensation is unlikely to benefit masses. Most of the money if secured will go waste the way other financial investments in J&K have been going. Whatever aid and grant the state has been receiving from centre has gone into the pockets of so many Chotalas of Kashmiri establishment. Jammu and Kashmir is recipient 20% waters of Ravi. If we ask for exclusive rights over waters of Ravi as a compensation for losses that occurred to the state as a result of Indus Water Treaty, it can be a worthwhile and sustainable compensation. Ravi constitutes the border between Jammu and Kashmir and Punjab. Exclusive right of utilisation of its water will in great way enhance water resources of the state. Apart from utilizing these waters for electricity generation they can help in complete transformation of Kathua and Jammu districts in terms of agricultural production.”
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