Filling the Missing Gaps in the Indus Water Treaty

Posted on Posted in Law Review

By Ahmer Bilal Soofi

The Islamic Republic of Pakistan and the Republic of India share a complex historical relationship. Apart from a common border, centuries of history, culture, languages and ethnicities, and traditions, Pakistan and India share the waters of the Indus River System.  The waters of the Indus River basin have therefore been a major source of contention between India and Pakistan since independence. This is evident in the number of water disputes that have broken out between the two states as early as April 1948. However, after four wars, water is the one area where the two countries have historically afforded each other the most accommodation in bilateral relations.[1] The basis for this cooperation is solely attributable to the negotiations that led to the Indus Water Treaty of 1960 (“IWT” or “Treaty”).

The IWT has endured over five decades of hostilities between the rival states, including, again four major wars. In recent years, however, water has once again become a divisive issue between India and Pakistan. The IWT is under strain and therefore there is a need for both countries to engage constructively in order to understand each other’s concerns and fears and resolve them through bilateral dialogue.

This paper highlights Pakistan’s primary concerns vis-à-vis the IWT. The first section discusses the water security threat felt by Pakistan as a result of Indian hydropower development on the western rivers and examines the legal capacity of the IWT to cater to such concerns. It argues that the best course of action for addressing Pakistan’s strategic concerns is through bilateral dialogue with India rather than abortively through the IWT’s dispute settlement framework. Furthermore, it highlights Pakistan’s concerns over the adverse consequences of India’s usage of the eastern rivers to the environment and ecosystems of Pakistan’s river communities. It addresses whether India has an obligation, under international law, to allow minimum flow in the eastern rivers for the purposes of conservation and river ecology. It argues that under contemporary conceptions of environmental science, it is untenable for India to claim that it has unrestricted use of the eastern rivers. Instead, India should exercise restraint and caution in its use in order to prevent harm being caused to the ecology of the entire river system.

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[1] Amitabh Mattoo, The Water Factor. The News International. (May 2010)