The Indus Waters Treaty: India and Pakistan’s Water Divorce

Imagine yourself walking along the banks of the Jhelum River. You begin your trek at Verinag, walking along the arcade and garden built by Emperor Jahangir in 1620. You admire the city of Srinagar (the “Indian” capital of Jammu and Kashmir) as you continue your walk. This river, once crossed by Alexander the Great and one of the many rivers mentioned in the Rigveda, is now one of the main sources for irrigation for the many apple orchards of the region.

Agriculture is, and has been, the backbone of the region’s economy, and today that economy is threatened. Despite the Jhelum River being under one of the most touted international water treaties of the 20th century, the Indus Waters Treaty, mining and other damaging projects have made it more and more difficult for the region’s farmers to get the water they need.

The Jhelum is just one of six tributaries that make up the Indus basin. Since 1960, the Indus Waters Treaty (IWT) has attempted to divide the water rights for the basin equitably between India and Pakistan. However, the treaty is currently hanging on by a thread, and the roots of this precarity can be traced back to the IWT’s establishment. Today, because of growth in population and water demands, the difficulties of climate change, and the mismanagement of the tributaries by both states, it is critical to renegotiate the treaty.

The IWT has managed to survive tense and at times violent relations between India and Pakistan. However, armed conflict over territory turns out to be less difficult to overcome than the realities of climate change, technological development, and population growth. For years, the IWT was praised for its “far-sightedness” by commentators and experts like Surya P. Subedi in 1999, but in recent years it has become clear that the literal “divorce” of the Indus Basin was a mistake. The IWT was a reasonable short-term solution in the 1950s to the growing territorial and water rights tensions between India and Pakistan. However, today, a critical reevaluation of the assumptions and method of the IWT is urgently needed.

A renegotiation of the waters in the Indus Basin will require not only an updated understanding of the current physical situation, but more importantly an attempt to reverse the “split” of the Indus Basin and develop a way to actually share the waters. Currently, the Indus waters are not being utilized efficiently or fairly, in Pakistan, India, or Jammu and Kashmir (not to mention the growing water needs of Afghanistan and China).

The Indus Waters Treaty’s Creation and Contents

In 1951, David E. Lilienthal, known for heading the Tennessee Valley Authority and the Atomic Energy Commission in the United States, wrote a famous piece in Collier’s Weekly: “Another Korea in the Making.” The article highlighted how India and Pakistan, almost immediately after gaining independence and then the Partition, began fighting over Kashmir. Lilienthal, like many American policymakers in the 1950s, looked to the Global South as full of countries that could either “fall victim” to communism’s allure or serve as tools against the growing Soviet threat. Lilienthal believed that Kashmir was “Communism’s northern gateway to the great strategic materials and manpower of the Indo-Pakistan subcontinent, and to the Indian Ocean.”

A visit to India and Pakistan led Lilienthal to be very wary of the “many unmistakable evidences of threatening war.” Thus, he argued the “real issue” was not a potential plebiscite in Kashmir, but “how best to prevent war between Pakistan and India; how best to promote and insure peace and a sense of community in the Indo-Pakistan subcontinent.” If the Indo-Pakistan situation was not resolved, Lilienthal believed, the region was on track for “another Korea,” but in this conflict “religious fanaticism would be substituted for Communist fanaticism.”

Dismissing the importance of resolving the Kashmir question immediately, Lilienthal turned to what every Indian, Pakistani, and World Bank official was really thinking about: water. Since “two-thirds of the entire water supply [originated] from Kashmir,” he argued, this was the “crucial and determinative aspect of the ‘Kashmir issue’” that American and United Nations officials needed to focus on. While Pakistan worried that India would control all the water, as the upper riparian, Lilienthal pointed out that India was worried about the fact that almost “none of the canals and irrigation systems” were within their new borders. Lilienthal went further to suggest that “common sense and engineering” would not only help solve the waters dispute, but also contribute to solving the Kashmir issue.

Lilienthal argued that India and Pakistan working together on this was critical because it was a “common project that [was] not political but functional, a part of life, and based on technical skill and human need;” thus, it would “inject a creative decent note into the rapidly degenerating quarrel between Pakistan and India over Kashmir.”

His assumption that the Indus water-sharing crisis could be approached as a technical and apolitical problem could not have been farther from the truth, as the negotiations and then implementation of the Indus Waters Treaty illustrated. Even if Lilienthal’s apolitical hopes were dead on arrival, in order to build the mutual confidence and trust between India and Pakistan necessary to resolve the never-ending Kashmir dispute, a reimagining of the water-sharing regime between India and Pakistan remains a clearheaded and logical place to start.

In 1947, the new international boundary between India and Pakistan went straight through the state of Punjab; thus, the irrigation infrastructure was virtually decapitated. Most of the headworks were in upstream India, and canals that depended on these works were in downstream Pakistan. The problem was even more serious after independence; as historians very well know, independence and Partition meant the “stakes” were much higher. If the Indus waters could not be divided properly, the agricultural economies of both countries would be severely implicated.

Recognizing this, the governments of East and West Punjab signed a temporary agreement after Partition to ensure water flow continued to Pakistan’s irrigation works. However, the agreement ended in 1948, and almost the second after it expired, water was shut off to Pakistan, threatening the harvest and livelihood of thousands.

After this incident, the Pakistani government was sure that its bargaining position with India was fundamentally weak, considering India was the upper riparian. The Indian government, following the doctrine of territorial sovereignty, supported its initial unilateral position that it could dispose of any or all of the water flowing in the portions of the rivers within its borders, even if there were adverse effects to Pakistan. However, this “doctrine” was not followed in Britain nor in South Asia before Partition. On the contrary, contemporary British legal scholars viewed it as “egotistical” and espousing an “anarchical conception of international law.”

Ultimately, the core of the fight was between different water rights doctrines. The riparian rights doctrine posits that the water in a stream belongs to the person or persons whose land borders the water. In direct opposition, the prior appropriation doctrine states that the first user has superior rights over all later users on an international stream. However, this latter doctrine was not used during British rule of South Asia, and thus it was difficult for the Indian government to claim. Finally, the equitable distribution doctrine posits that a river, regardless of the boundaries that divide it, is an indivisible unit, so its benefits must be distributed equitably among all the riparian states. Under this doctrine, neither India nor Pakistan would be able to “injure” another party through a unilateral action, such as obstruction, diversion, or unreasonable use of an international river.

Under British rule in the subcontinent, the equitable distribution doctrine was used to settle inter-province and inter-state disputes. Thus, after Partition, the Indian government worried that the doctrine would lead to the challenge of its authority over the Indus basin. After Partition, India attempted, over and over again, to claim the Harmon Doctrine, the “most notorious theory in all of international resources law.” This particular doctrine supported a theory of sovereignty over international rivers that granted the upper riparian absolute rights to water that flowed through its territory. The theory, largely discredited and not used during the period of British rule, was vehemently opposed by the Pakistani government. Without fully articulating it, they claimed, as Christopher R. Rossi summarized in a 2020 article, that the Indian government “weaponizes water by releasing torrents without notice, causing floods downstream.”

Today Pakistan is more worried about India’s water diversion tactics than its military. Lilienthal himself made the same point in 1951: “No army, with bombs and shellfire, could devastate a land as thoroughly as Pakistan could be devastated by the simple expedient of India’s permanently shutting off the sources of water that keep the fields and people of Pakistan alive.”

Pakistan and India came to an agreement in 1948, the Inter-Dominion Agreement, in which both states understood the other’s requirements from the Sutlej River, and promised to continue future negotiations. Despite this promising start, the next few years saw the complete collapse of the agreement. The Pakistani government attempted to submit the Sutlej dispute to the International Court of Justice (ICJ), but India refused. The Indian government believed that a primarily legal evaluation of the dispute would favor the Pakistani position. Thus, both the Pakistani and the Indian governments were at an impasse. Ultimately the agreement would do nothing more than “acknowledge [that] there was a dispute in which both sides had legitimate claims.”

In order to protest the agreement, and because Pakistan thought that it was only a matter of time before India abused its position, Pakistan decided to breach the Inter-Dominion Agreement, but India refused to budge. Both countries had petitioned the World Bank already for works on the Sutlej River, but the Bank couldn’t move forward until the dispute had ended. Thus, the Bank made an offer to the governments of India and Pakistan: Let the Bank mediate the dispute. With this offer began the process of conforming the “natural” unitary state of the Indus basin’s environment within newly created territorial boundaries.

The World Bank’s 1951 offer came after many failed attempts between India and Pakistan to negotiate and resolve the water dispute on their own. Although on the face it seemed that India, as the upper riparian, would never agree to outside mediation, both countries needed to resolve the dispute in order to gain access to the Indus Basin Development Fund at the World Bank, secure a consistent water supply for the immediate future, and ensure continued construction of ongoing projects.

As negotiations began in 1952, the World Bank entered with certain assumptions. They assumed that the basin not only could provide enough water for both countries for the next century or two at least, but also that the Bank’s involvement meant a way to avoid politics and focus on the technical solutions in front of them.

Both of these assumptions were incorrect. The demand for water from both states makes the Indus Basin’s supply insufficient, and the so-called “technical” solution was injected with political considerations from day one.

The World Bank began with a proposal in 1954, after a couple years of fact-finding and proposals from each country. The proposed agreement granted India exclusive rights to the three eastern rivers of the basin: the Sutlej, Beas, and Ravi. Although this constituted only 20 percent of the Indus waters, India had the advantage as the upper riparian. Pakistan would be granted “nonexclusive” rights to the western rivers — the Chenab, Jhelum, and Indus. While Pakistan initially rejected this deal, and a 1956 amendment including water storage facilities, after Ayub Khan took over in a coup d’état as the president of Pakistan, the country agreed.

India and Pakistan signed the final agreement in 1960, which included a monetary contribution of 62 million pounds sterling from India to Pakistan’s irrigation infrastructure, created instruments for continued information exchange, and established a Permanent Indus Commission to encourage cooperation and be the main dispute resolution mechanism. The treaty also included the possibility of a “neutral expert” and a Court of Arbitration if disputes escalated.

It was clear almost immediately that Pakistan benefited greatly from the treaty, but India’s benefits are more subtle. If you go by percentages, Pakistan received 80 percent of the basin’s water, but that didn’t matter much because India was the upper riparian. Ultimately it is the location, quality of water, and flow that make some rivers more desirable than others. India’s position was ultimately superior because of the “exclusive” rights it had over the eastern rivers in the basin. These exclusive rights meant that almost all international obligations to share these waters were waived, and in the end that was worth giving up 80 percent of the basin (at least in 1960). The legal protections India gained for its projects in the Indus Basin were far superior to Pakistan’s protections with its nonexclusive rights. Another reason the IWT was never destined to be a static and all-encompassing treaty was the fact that all the western rivers that Pakistan has “nonexclusive” rights to flow through Jammu and Kashmir, territory which is still disputed to this day.

The IWT’s Main Problems Today

The IWT has survived for 60 years, but scholars Robert G. Wirsin and Christopher Jasparro argued that the IWT is also known for its “abandonment of customary international norms governing internationally shared rivers. In particular, it discarded the norms protecting the downstream country’s traditional uses of the river waters, in place of which it offered geo-physical partition of the river system itself.” Others like Ramaswamy Iyer have argued that the IWT was nothing more than a “coda” to the Partition of 1947.

However, one must take 60 years of survival into account. The Indus Waters Treaty was an excellent short-term solution; it was the only politically and technologically practical option left to the World Bank at the time. But 60 years is long enough. Today the treaty is unable to deal with the rise in water demand, mismanagement by both states, and the unavoidable problems that climate change will bring.

Despite the so-called expediency of the treaty in 1960, almost immediately the negative consequences for Pakistan became clear. The “exclusive” rights that India had gained, despite the existence of a neutral expert, gave the Indian government almost complete legal cover against Pakistan’s complaints about Indian projects. Also, even though Pakistan had ostensibly gained control over the western rivers, since they all flowed through Kashmir, the future status of the rivers would remain in doubt just as Kashmir’s territory remained in doubt.

One of the most recent disputes within the bounds of the treaty, the issue of the Baglihar Dam, brings the core problems with the treaty to light. Pakistan objected to the storage capacity of the 150-meter high dam on the Chenab River, as well as the intake tunnels and spillways. After two failed rounds of negotiation, the Pakistani government invoked the arbitration clauses of the IWT, and pushed for the appointment of a neutral expert. Pakistan raised its first objections in 1992, and the dispute was not officially resolved until 2010.

There were only a few serious objections by the Pakistani government in 1992; the real problems began in 1999 when it was announced that the hydroelectric capacity of the dam’s design was increased to 450 megawatts. India only provided the Pakistani governments with complete information (as required by the treaty) in May 2002, and after this the Pakistanis demanded that construction be halted immediately. Pakistan insisted that a visit by their side was necessary before any new construction could commence. India responded that construction was too far along for a halt and an inspection by Pakistan would be difficult given the politics around the line of control.

Even after a meeting of the Indus Water Commission in 2003, there was no agreement.

Finally, an inspection from the Pakistani side took place in October 2003. When there still were no concessions made from the Indian side after this inspection, Pakistan threatened to invoke the World Bank and the appointment of a neutral expert.

When a Swiss civil engineer, Raymond Lafitte, was appointed as the neutral expert in 2005, Pakistan hoped for a verdict that would support their qualms. However, after 20 months of work, the final report was much more supportive of the Indians and the Baglihar project as a whole. Without diving into the particular technicalities of dam design and modern spillways, it is enough to say that Lafitte argued that since the IWT was written in the 1950s, before modern developments in dam technology, he would argue for a broad interpretation fo the treaty and upheld the Indian government’s right to proceed with construction of the Baglihar Dam as planned.

Although the IWT was drafted as a means to “share” the Indus Basin, ultimately it became a tool to improve and encourage dam construction on the whole, regardless of larger impacts on the basin or either state. Basically, to quote Robert Wirsing, Lafitte modified “the Treaty's intent from one of conflict prevention to one of dam sustainability.”

Ultimately, the Baglihar dispute, and those that have come since, are evidence of the fact that the IWT was drafted with not just a “static” basin in mind, but a more or less “static” political, demographic, and environmental situation in India, Pakistan, and Kashmir. This assumption of stasis is the core flaw in the IWT and needs to be removed from future negotiations if any bordering state of the Indus Basin, not just India and Pakistan, wants to take advantage of the basin.

While the water crisis is not isolated to South Asia, what makes the subcontinent distinct is the specific economic and demographic needs of the region and the specific antiquated aspects of the IWT. As India’s and Pakistan’s populations grow, the IWT will remain the same document, unspecific on allocating water and water projects when demand shifts and precedent (such as the Baglihar case) leading it to focus more on developing dams, not an actual water-sharing regime.

The IWT was not designed with changes in demand in mind, nor did it take into account the negative externalities of climate change. In fact, along with the excesses of development on both sides of the line of control, the IWT says nothing about protecting the environment, let alone managing technological excesses that could tap into power and water supply. The IWT does not actually engender cooperation, but enables a weak system of complaint and resolution. Underneath the 60-year blame game of which state is hoarding too much water under the guise of development, the worst-case scenario of Lilienthal’s dream has come true: Neither side has made legitimate progress in resolving the Kashmir dispute. Adding a water war to the Kashmir dispute would be like adding ghee to an already healthily burning fire.

Not only is it the case that the signing of the IWT made it possible for both India and Pakistan to neglect the economic and environmental problems in Kashmir associated with Indus Basin development, but the treaty did not engender discussions of even cooperative hydrological development, let alone political cooperation. Large dams in all states cause massive environmental and displacement problems, so the consequences for Jammu and Kashmir are nothing unprecedented. Kashmiri citizens that live near the Baglihar Dam were promised access to water, land, and prosperity, but after the dam was built, families were kicked out of their homes and forcibly moved to places without access to electricity and other modern infrastructure.

Even though Pakistan was negatively affected because of the Baglihar Dam (and other projects on Indian-controlled areas of the basin), Prime Minister Imran Khan has not backed down on Pakistan’s own dam aspirations. Since Pakistan relies almost exclusively on the Indus Basin for its water, in recent years the government has pushed for major construction projects in order to increase storage capacity. However, the increase in freshwater availability for Pakistan will be inefficient, and according to experts, this increase in storage will not last long. It will also only further problems in Jammu and Kashmir.

The Ujh multipurpose hydroelectric project, proposed by India, in Kashmir will not only lead to the destruction of over 200,000 trees in the area but also mean that perhaps over 50 villages and 3,000 families will lose their homes.

The same promises have been made over and over again to the Kashmiri people, by both Pakistan and India: that dams will bring prosperity, solve irrigation and electricity problems, and ensure safe access to water. However, regardless of whether these dams live up to the nationalist hopes of either India or Pakistan, the costs are almost all placed on Kashmiri citizens.

As Kashmir is dealing with the rising impacts of climate change on its agricultural production, it also has to deal with the dangerous costs of water projects to their water access, their environment, and even their own homes.

Although it is true the IWT was not envisioned as a way to resolve the territorial dispute over Kashmir between Pakistan and India, currently it is making it possible for India and Pakistan to move forward with development projects that not only engender Kashmir’s environmental and economic problems but actually exacerbate territorial fights over the region. India and Pakistan had accepted the World Bank’s treaty specifications because it would attempt to separate the water dispute in the basin from the territorial dispute over Jammu and Kashmir. However, today we have reached a point where the IWT engenders the development of projects by both states and avoids the deeper costs to the region as well as the crux of the territorial dispute itself.

Renegotiation of the Indus Waters Treaty will not necessarily mean an end to the political strife in Kashmir, but the water sharing problem can be solved in such a way that the costs to Kashmiri citizens are not ignored. Perhaps a more cooperative treaty that acknowledges the shared environmental and climate problems of India, Pakistan, and Kashmir will make it easier in the future for Pakistanis, Indians, and Kashmiris to come to favorable terms on territorial issues, too.

Why should India and Pakistan renegotiate the Indus Waters Treaty? Because it has an outdated understanding on demand for water, has developed as a vehicle to support development on the Indus regardless of the changing political, environmental, or access concerns, and ultimately ensures that India and Pakistan can continue to avoid dealing with their political and territorial disputes.

A New Treaty: What Can It Look Like?

If both India and Pakistan come to the drawing table for a renegotiation of the Indus Waters Treaty, there will be seemingly intractable problems from day one. Currently, both India and Pakistan, as well as Kashmir, feel the treaty cannot hold up to the challenges of the 21st century.

Kashmiri citizens feel their needs are not being addressed or even seen. Pakistan sees its water supply under constant threat because of Indian development projects that continue to reduce water flow into Pakistan. And finally, India believes that while it has exclusive rights over the eastern tributaries, and certain rights over the western ones, it has to develop projects under the constant threat that its work will be nullified by the World Bank.

Regardless of the negative externalities associated with dam and canal construction, it is clear that the IWT’s focus on “dispute” resolution has made it possible for any project on the Indus tributaries to be seen as a way for each country to one-up the other. Although both India’s and Pakistan’s interests conflict in many areas, both have the same goals in their domestic spaces: to fight the threats of poverty, climate change, and underdevelopment that plague many Global South countries today.

Thus, both states should be willing to turn the page and attempt a negotiation of a new treaty that governs the Indus River Basin: A treaty that throws away previously made assumptions that the Indus Basin is a renewable source, that technological solutions will outstrip political problems, and that gaining distinct water rights by dividing shared waters is the only way for more development. The current treaty prevents any opportunity for cooperation over water projects, and because it does not offer any guidelines or protections for such a possibility, the adversarial relationship will only grow.

In basic terms, a new treaty will need to account for the respective water demands of India, Pakistan, and Kashmir; it should create a structure for cooperation on hydrological development from both states; finally, it should set clear objectives that both states must meet together with regards to climate change mitigation, efficient water usage, and ecological and demographic costs associated with development. While it will be difficult for both India and Pakistan to come up with and agree upon an integrated water-sharing regime that encourages joint development, the current IWT exists as a net to catch both countries if they fall during their renegotiating.

Also, so as to not be unrealistic, we must accept that even if it was flawed to divorce the Indus Basin into two at the time, forcibly joining it completely together today will also be impossible. Regardless of the damage to the “natural” flow and working of the Indus Basin as a single unit before the treaty was signed, for the past 60 years the IWT and the projects built under its protections have together created what environmental historians like William Cronon call a “second nature” on top of what was already there. Thus, new negotiations should not attempt to destroy existing infrastructure or force India and Pakistan to accept that previously built projects are now “common” between the two.

Instead, negotiations should begin with the assumptions that while current projects will continue to function, there needs to be a clear plan to deal with the rise in water demand from both states. Such a plan is possible by sharing both the benefits and burdens of new developments. Since one of the core aspects of the IWT is information sharing about water and hydrological development on the Indus Basin, the information sharing required by a new joint arrangement will not be impossible to maintain.

The key difference and perhaps the most difficult thing to achieve in a new Indus Waters Treaty will be shifting both India’s and Pakistan’s focus away from “gaining the most water” and bring it toward the new benefits that sharing responsibility and costs can bring. Although I can’t make grand promises like Lilienthal that “common sense engineering” will bring an end to political and territorial fighting between India and Pakistan, I do argue that a renegotiation of the treaty can engender civic participation, underscore core issues around climate and development that have been ignored for too long, and perhaps encourage political stability in the region.

Water insecurity is the central problem for the world in this century, and the difficulties in sharing water between countries are not going to go away overnight. In fact, the disputes may get worse as climate change exacerbates insecurity. It is imperative, before the threads that are holding the Indus Waters Treaty together break completely, that India and Pakistan come up with a plan to rewrite a water-sharing agreement that does not try to hide the problems of mismanagement, climate change, and rising water demand, but instead creates a framework that makes it possible to engender cooperation against these problems.

The IWT has worked incredibly well in serving a short-term purpose for the past 60 years, but just as the bank of a river doesn’t remain static, the problems and opportunities associated with the Indus Basin have changed as well. While some may argue that an integrated and cooperative water-sharing framework is unattainable given the political situation in South Asia, not doing anything will be akin to letting a dam burst and flood the surrounding area, even when you were given the means and abilities to fix it.