The Making Of A Treaty

Barring that the water sharing Indus Water Treaty was brokered by World Bank for India and Pakistan, nothing much is in public knowledge. In the Partial Award that the Internal Court of Arbitration issued to India and Pakistan in the ongoing Kishanganga project dispute on February 18, 203, it has offered Treaty’s evolution in detail. Kashmir Life reproduces this part of the award with courtesy to the seven-member Court at The Hague.

The need for a treaty regulating the use of the waters of the Indus river system arose in 1947 with the independence of India from British rule and its partition into the Dominion of Pakistan (now the Islamic Republic of Pakistan and the People’s Republic of Bangladesh) and the Union of India (now the Republic of India).

Before partition, use of the waters was negotiated between the relevant provinces and states of British India, and any disputes were resolved by the British Secretary of State for India, and later by the Government of India. After partition, parts or all of the upper reaches of the six main rivers of the Indus system were located in India, with their downstream stretches flowing through Pakistan. A temporary agreement for the allocation of the use of these waters between East Punjab (an Indian state from 1947 to 1956) and West Punjab (a province of Pakistan from 1947 to 1955) expired on 31 March 1948.

In April 1948, an incident occurred during which East Punjab discontinued the flow of water in the canals leading to West Punjab. An agreement was reached by the two states and the flow of water in the canals concerned was restored within one month, but this incident exposed the two states’ differing views on their respective rights and obligations regarding the waters of the Indus river system.

In August 1951, Mr David E. Lilienthal, the former head of the Tennessee Valley Authority in the United States, visited the region at the invitation of the Prime Minister of India Mr Jawaharlal Nehru and after his visit published an article recommending that the World Bank facilitate the negotiation of the joint development of the Indus waters basin by India and Pakistan.

In pursuance of Mr Lilienthal’s proposal, on 6 September 1951, the World Bank offered to assist India and Pakistan in elaborating a cooperative regional approach to the development of the Indus river system’s water resources. Both States accepted this offer.

The first two years of negotiations were not successful. The two States were unable to prepare jointly a comprehensive plan and, when invited to each prepare their own comprehensive plan, made proposals that “differed widely in concept and in substance.” From the World Bank’s perspective, the difficulties resulted not from technological complexity, but from:

  • (1) the inadequacy of the resources of the Indus system of rivers to satisfy all the needs of the area;
  • (2) the involvement of two sovereign States in the development of the Indus basin as an economic unit; and
  • (3) the fact that while Pakistan considered that existing uses of the waters should be continued from existing sources, India believed that, although existing uses should be continued, they did not need to be continued from existing sources (i.e., that some waters of the Eastern Rivers used by Pakistan could be released for use by India and replaced by waters from the Western Rivers).

To end the impasse, on 24 February 1954, the World Bank put forward a substantive proposal (the “1954 Proposal”), suggesting a division of the waters of the Indus river system between the two States. The 1954 Proposal allocated to Pakistan the “exclusive use and benefit” of the “entire flow of the Western Rivers (Indus, Jhelum and Chenab),” and to India the “exclusive use and benefit” of the “entire flow of the Eastern Rivers (Ravi, Beas and Sutlej).” It also provided for a transitional period during which India would continue to supply Pakistan with its “historic withdrawals” from the Eastern Rivers, while Pakistan constructed link canals that would allow it to replace water it had previously secured from the Eastern Rivers by water from the Western Rivers.

Four years of intensive negotiation and discussion followed, at the conclusion of which agreement was reached on the Treaty’s general principles, largely in keeping with the 1954 Proposal. Beginning in August 1959, the World Bank proposed and the Parties exchanged views on increasingly detailed drafts. Among other matters, agreement was reached on the restricted uses India would be permitted to make of the waters of the Western Rivers.

The Parties, as well as the World Bank, finally signed the Treaty on 19 September 1960. The Treaty entered into force on 12 January 1961, upon the exchange of documents of ratification, with retroactive effect from 1 April 1960.

In addition to regulating the allocation of the use of the waters of the Indus system of rivers, the Treaty created the Permanent Indus Commission (the “Commission”) to establish and maintain cooperative arrangements for the implementation of the Treaty. The Commission is formed of a Commissioner for Indus Waters appointed by India (the “Indian Commissioner”) and a Commissioner for Indus Waters appointed by Pakistan (the “Pakistani Commissioner”) (together, the “Commissioners”), each acting as a representative of his Government and as the regular channel of communications for all matters related to the Treaty. The full range of the Commission’s duties is set out in Article VIII of the Treaty. Sub-paragraph 4 of this provision specifies that these functions include:

  • (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: [. . .]
  • (b) to make every effort to settle promptly, in accordance with the provisions of Article IX(1), any question arising thereunder;
  • (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; 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 fact connected with those works or sites;

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