With growing water scarcity across many parts of the world, competition over access to this vital resource has been known to spark conflict. Following the September 2016 Uri attack in India, the government made plans to retaliate against its neighbour by exercising its right to use water of the western rivers—allocated to Pakistan under the Indus Waters Treaty—by building dams, canals and reservoirs. This paper aims to address the legal, economic and social implications of this policy decision. It concludes with an observation that any project India decides to conduct on the transboundary rivers must not only be economically and environmentally feasible, but also comply with India’s obligations under customary international law.
Introduction
‘Whisky is for drinking; water is for fighting over’. This maxim, popularly attributed to Mark Twain, can be rightly put into context of the current discussions around water resources. The scarcity of water around the world has resulted in competition among its users, and the history of conflicts over freshwaters is long and distressing. The US-based Pacific Institute has documented various incidents of tensions emerging over water from across the globe. These cases include those where water had been used for political goals or as a weapon during military actions. Water reservoirs have been made targets of terrorist attacks, and have become the subject of disputes in the context of economic and social development projects. The Institute’s Water Conflict Chronology List includes nearly 400 known water conflicts[i]from the 3rd century BC till 2015.[ii] Table 1 shows the growth in reported water conflicts between 1980 and 2015.
According to UN-Water (the UN inter-agency mechanism for water-related issues), various factors contribute to tensions over transboundary waters—among them, water scarcity, dam construction, water abstraction (or the removal of water from its natural environment, like rivers, lakes, groundwater reservoirs), pollution by industry, and violations of existing legal obligations. There is no end yet in sight for these tensions, as growing populations, urbanisation, economic development, and climate change all exert tremendous pressure on the world’s water resources.[iii] Yet at the same time, the vital nature of water and the need to safeguard this common resource has also served as an important incentive for co-riparian countries to cooperate. This is best indicated by the impressive number of approximately 300 international water-sharing treaties negotiated and signed since the end of the second World War.[iv] Also, according to the BAR Intensity Scale for positive and negative water-related events from 1948 to 2008, as provided by the International Water Events Database, the number of documented incidents of cooperation over water (77 percent of all cases), including the signing of water-sharing treaties, is far greater than that of water conflicts (19 percent).[v] This indicates that water also unites diverging interests of stakeholders, rather than only dividing them.
The complex relationship between water and conflict has raised concerns among policymakers around the globe, particularly in Asia and Africa. Out of over 80 cases of water conflicts reported in Asia by the Pacific Institute, 58 involved some degree of violence.[vi] One of these was the 2012 militants’ attack on the Tulbul Navigation Lock/Wullar Dam construction site in Jammu and Kashmir (J&K) in India. The project is being opposed by Pakistan, which argues that it is not in line with the provisions of the Indus Waters Treaty. In fact, the treaty itself originated from the severe water conflict between India and Pakistan at the time of partition, including an incident of cutting off water supplies from India to parts of Pakistan in 1948.[vii] Moreover, a recent survey by the US National Aeronautics and Space Administration (NASA), analysing data collected by satellites between 2003 and 2013, indicates that Indus Basin is the second most overstressed water basin in the world, with its water levels falling by four to six mm every year.[viii] To understand the conflict around the Indus Basin between India and Pakistan, it is important to study the 1960 Indus Waters Treaty in detail.
Table 1: Number of water conflicts reported by the Pacific Institute, 1980 – 2015
The Indus Waters Treaty
The Indus Waters Treaty, signed in 1960 between India’s first prime minister, Jawaharlal Nehru, and Pakistan’s then president, Gen. Ayub Khan, provides for the sharing of the six rivers that flow through the Indus basin – encompassing certain areas of both Indian and Pakistan territories. According to the arrangement, India has unrestricted access to water of three eastern rivers (Ravi, Beas and Sutlej) whereas the water of western rivers (Indus, Jhelum and Chenab) is allocated to Pakistan; India can use the latter only for domestic, non-consumptive, agriculture and hydro-power generation purposes. Some analysts refer to the treaty as one of the most “liberal” water-sharing arrangements in the world, given Pakistan’s 80.52-percent share in using Indus system waters as against India’s share of only 19.48 percent.[ix]
In spite of the treaty, however, tensions between India and Pakistan over these waterways have not come to an end. This includes the 2013 arbitration dispute over India’s Kishenganga hydro-electricity plant, which confirmed India’s right to divert water for the purpose of the project, as well as the recent engagement of the World Bank in the outstanding disagreements pertaining to the construction of the Kishenganga and Rattle hydro-power projects by India. Responding to the concurrent requests from Pakistan and India to appoint a new arbitration tribunal or a neutral expert, respectively, the World Bank, which plays a procedural role under the Indus Water Treaty, urged both countries to resolve their differences through mediation.[x] Before that, in September 2016, the terrorist attacks in Uri brought the Indus Waters Treaty to the fore. The attacks killed 18 Indian soldiers and left dozens wounded, opening yet again another channel for public debate in India as policymakers and security experts weighed in on the question of how to identify strategies and options to cause disorder in Pakistan. A range of non-military options, including abrogating the water treaty with Pakistan, emerged during the policy discourse. In regard to the Indus Waters Treaty, the Indian government considered the following two measures:
- Suspend the operations of the Indus Waters Commission established under the treaty to facilitate consultations, exchange of data and resolve potential disputes.[xi]
- Exercise its right to use water of the western rivers to the maximum by building dams, canals and reservoirs.
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