Why Kashmir is at the heart of Indus Waters Treaty dispute
[Book extract] Its importance in the Indus Waters Treaty dispute was in keeping with its general weight in bilateral relations, and vice versa.
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Kashmir and the Indus Waters Treaty
Water remained, however, a tendentious issue in relation to Kashmir. When Nehru visited Karachi in September 1960 to sign the Indus Waters Treaty with Ayub Khan, the two leaders also held lengthy discussions about other questions. According to Indian diplomatic reports, the atmosphere of the talks was "informal and friendly". Discussions ranged over travel facilities, agreements on outstanding issues to do with moveable property left behind in each country by departing Partition migrants, the exploitation of gas reserves at Sui in Balochistan, and cooperation on scientific and technical matters.
On Kashmir, however, they achieved little.
By June 1961, Ayub told American diplomats that he was unlikely to get a settlement of the Kashmir dispute through direct negotiation with Nehru. Meanwhile, the Indian press blamed inflammatory speeches by Ayub himself for destroying the goodwill that the treaty had produced. Either way the treaty, which the scholar PR Chari has referred to as a confidence-building measure, did not build much confidence. Instead, it became a new source of contention.
A closer look at the relationship between the negotiations, the treaty and Kashmir’s geography is necessary to understand why. Both Indian and Pakistani negotiators had been concerned throughout the 1950s to protect their respective claims on Kashmir. The Indian team agreed to Pakistani water control works in Pakistan Administered Jammu & Kashmir, as part of the Indus Basin works programme, only so long as the treaty wording safeguarded India’s legal position — its claim to sovereignty over the whole of Kashmir.
The Pakistan government similarly asked the World Bank to ensure that "the water treaty should not be so worded as to prejudice Pakistan[’s] stand regarding Jammu & Kashmir territory". The result was a treaty that deliberately avoided addressing the problem of competing approaches to Kashmiri sovereignty This was essential to getting the treaty signed, but did nothing to resolve the Kashmir conflict.
The treaty assigned the water flows of the Ravi, Sutlej and Beas to India — something for which Indian negotiators had pressed since 1948. Pakistan acquired sole use of the Indus, Jhelum and Chenab, which it could use to make up the water deficits in land previously irrigated by the eastern rivers.
Pakistan agreed to the division in return for $850 million (more than $6.8 billion in 2016 terms) in international assistance to construct replacement canals and new dams at Mangla and Tarbela. But the fact that the Jhelum and Chenab both flowed through Jammu & Kashmir before reaching Pakistani territory proved a block to improving relations. Despite the many arguments that Indian and Pakistani policymakers made that linked water rights to ownership of territory, article IV(15) of the treaty hinted at both sides’ eventual determination to separate the water settlement from territorial sovereignty.Of the eastern rivers, which India could use freely, only the Ravi passes at all through Jammu & Kashmir.
"Nothing in this Treaty", it read, "shall be construed as affecting existing territorial rights over the waters of any of the Rivers or the beds or banks thereof." Article XI(1) restated the matter: "nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a recognition or waiver (whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the Parties other than those rights or claims which are expressly recognised or waived in this Treaty."
In other words, the treaty governed only the allocation of the flows of the six rivers and their tributaries. No other rights accrued. India had agreed to allow water to flow into Pakistan; it had not relinquished its claim to sovereignty over the Indus Basin’s rivers. The passage of so many rivers through Kashmir, and the suitability of its topography for dam-building and hydropower generation, nevertheless put the region at the centre of several provisions.
Neither the treaty nor its annexures directly acknowledged Jammu & Kashmir or Pakistan Administered Kashmir by name. They certainly did not mention the state’s disputed status. But references abounded to works, watercourses and places there. Annexure C, which provided for limited Indian "agricultural uses" on the western rivers, specified the Ranbir and Pratap canals, which both took off from the Chenab in Jammu & Kashmir.
India could continue existing irrigation uses. Annexure D provided for India to build hydroelectric power works on the western rivers, again in Jammu & Kashmir. It named existing and potential generation plants, without noting the political implications of their location.
The treaty’s evasion of the Kashmir issue was pragmatic, but did not address the fundamental cause of Pakistan’s water insecurity. It left "Pakistani" rivers, the Jhelum and Chenab, flowing through Indian Kashmir. With no prospect of water from the eastern rivers, Pakistani discourses on the western rivers acquired an even stronger possessive tone, which intensified Pakistan’s claims on Kashmir, the land through which those rivers ran. In March 1960 foreign minister Manzur Qadir, speaking in Karachi, asserted that Pakistan’s coming dependence on the western rivers heightened the importance of gaining control over them. The Indian high commissioner in Karachi, who reported on the speech to New Delhi, interpreted Qadir as hinting that Pakistan might accept a partition along the Chenab watershed as an alternative to a full plebiscite in Kashmir. If so, this would have been a rare instance of a Pakistani leader publicly emphasising watershed control over Kashmiri self-determination.
There were many other examples of the same attitude. Around the same time, President Ayub Khan stated publicly that India’s agreement that the water of three rivers passing through Kashmir belonged to Pakistan meant that the territory through which these rivers flowed should belong to Pakistan too. Nehru told the Lok Sabha that Ayub had raised the same point during talks between the two leaders that accompanied the signing of the treaty in September 1960. During the same month, Pakistan’s Civil and Military Gazette argued that Pakistan now had "the weightiest reason for having physical control over their [the western rivers’] upper reaches […] There can be no escape from the reality that Kashmir and canal water are not two problems but one." The Urdu daily Nawa-i-Waqt stated that without a Kashmir settlement, "India will continue to have our life in her hands", according to the public relations office in India’s Karachi consulate.
Even in 1962 Zulfiqar Ali Bhutto, Pakistan’s minister of information, told an audience in Hyderabad, Sindh, that the struggle for Pakistan could never be complete without a Kashmir solution because the state was the source of Pakistan’s water. India’s position on Kashmir also survived the Indus Waters Treaty unscathed. Indian leaders had always insisted that Pakistan’s presence in Pakistan Administered Kashmir was a breach of Indian sovereignty. A 1961 briefing instructed Indian diplomats to counter the Ayub administration’s claim that Pakistan needed Kashmir all the more as a result of the treaty. The official Indian line was that the treaty’s guarantee of flows in the western rivers ought to be enough to satisfy Pakistan. The ministry of external affairs repeated the point that if lower riparians could legitimately claim physical control of the upper reaches of rivers, national maps would need redrawing across the world.Indus Divided: India, Pakistan and the River Basin Dispute; Rs 599; Penguin/Viking, 2017.
Indian attitudes towards sovereignty in Kashmir still retained ambivalence, though. India’s ambassador to the United States, Braj Kumar Nehru (Jawaharlal’s cousin), told the State Department in 1962 that the transfer of some Kashmiri land outside the Valley to Pakistan "could be negotiable". But nothing came of this possibility. Instead, in 1963 Jawaharlal Nehru told the New York Times of his frustration with Pakistan’s demands for control of river headwaters despite the existence of the Indus treaty. Nehru refused to countenance the idea of partitioning the Valley.
In practice, the treaty did limit India’s de facto sovereignty in Jammu & Kashmir. The heavy restrictions on Indian uses of the western rivers substantially limited possibilities for economic development there. Jammu & Kashmir could only maintain, not extend, its irrigation provision from the western rivers.
Of the eastern rivers, which India could use freely, only the Ravi passes at all through Jammu & Kashmir. Even then it merely runs along parts of Jammu’s border with Himachal Pradesh and Punjab. By contrast the Jhelum, restricted to Pakistan’s use, flows through the heart of the Valley. As early as April 1960, the chief engineer for irrigation in Jammu told a US diplomat that India had suspended plans for a dam on the Chenab near Riasi owing to informal Pakistani objections. But the territory of Jammu remained firmly in Indian possession.
Neither the Indian nor the Pakistani government would tolerate even the appearance of an implication for Kashmiri sovereignty in the Indus treaty. The treaty’s success depended on its supposedly "technical" basis. That enabled a separation from political issues, including Kashmir, as policy analysts such as Dennis Kux have argued. As I will show in more detail in chapter 6, it did depend on the apparent decoupling of water rights from territory, particularly in Kashmir.
But in fact the attempts to separate water from territorial issues was a rhetorical sleight of hand. Geographers such as Kathryn Furlong, Colleen Sneddon, and Chris Fox have demonstrated convincingly in other contexts that transboundary river development is almost always a political matter. In the case of the Indus system and Kashmir, it was both practically and politically impossible to divorce the rivers from the land over which they flowed. It was not possible to abstract water, as a resource, from the political context of people making claims to that water.
Kashmir’s importance in the Indus waters dispute was in keeping with its general weight in India–Pakistan relations, and vice versa. The tangled relationship between sovereignty, territory and water pervaded both equally. As in the waters dispute more generally, there was fierce competition to define the terms of the debate.
Indian leaders insisted that Pakistan’s actions and claims violated Indian sovereignty: a 1970 Ministry of External Affairs briefing insisted that Pakistan’s "illegal occupation" of parts of Kashmir was the only issue, but Islamabad (Pakistan’s new capital) wanted India to give up its assumption of sovereignty over the whole state as the starting point for negotiations. These stances mirrored India’s attempts to define uses of transboundary river water as a domestic matter, versus Pakistan’s assertion of downstream rights.
Yet Kashmir provided an additional layer of complication. India had physical access to rivers in Indian territory, but not to Pakistan Administered Kashmir. In the water dispute, India stood on its physical position while Pakistan invoked theoretical rights. In Kashmir, both sides had control of some territory, and made theoretical arguments about what should happen in the rest. Ironically, in the field of water development during the 1950s and 1960s, Pakistan exercised more de facto sovereignty than India in Kashmir.
The Mangla Dam project symbolised Pakistani power. It literally integrated a part of Kashmir into Pakistan’s water and energy supply networks, and extended the authority of West Pakistan agencies such as WAPDA into new territory. By contrast, the Indus Waters Treaty severely limited Indian development work in Jammu & Kashmir. It thereby closed off one of the most significant routes to establishing state legitimacy in Kashmir: the price for India’s assertion of absolute sovereignty over the eastern rivers on the plains.
Indian Kashmiris have since put pressure on the central government over what they claim is the treaty’s unfairness to them. The Jammu & Kashmir State Assembly passed a resolution in 2003 demanding that the treaty be renegotiated. Power demand in Jammu & Kashmir, a state whose population increased from 2.5 million at the time of the treaty’s signing to 10.5 million in 2011, has greatly outstripped increases in supply. The treaty’s restrictions on water storage for hydropower on the western rivers, according to R Nazakat and A Nengroo, mean that the state government has developed only 2,500 MW of the region’s estimated hydroelectric power potential of 20,000 MW. The state government is forced to run costly gas power plants and import power from India’s centrally managed northern grid. In August 2014 the state’s chief minister, Omar Abdullah, said that the terms of the Indus Waters Treaty had scotched the State government’s plans for a major water supply project from the Chenab.
The entanglement of river control and territorial claims over Kashmir shows that the framework of absolute sovereignty versus territorial integrity in water rights, which I emphasised in chapter 2, is too narrow to explain the ramifications of the Indus dispute. Identifying these positions helps explain the influence of riparian positioning on states’ hydro-logics, but the unsettled nature of territoriality in Kashmir was equally important. With an enormous disparity between India’s and Pakistan’s legal claims on Kashmir, and the realities of state power there, an important element of the broader water dispute cannot be categorised according to transboundary water law norms.
Indeed, the Indus Waters Treaty represented only the narrowest settlement of the water dispute because it did not address any of the territorial concerns that underpinned hydropolitics in the basin. As Hasan-Askari Rizvi has noted, Pakistani official circles still argue that Pakistan has more territorial and economic links with Kashmir than does India, relying as it does on the Indus, Jhelum and Chenab for almost all of its surface water supplies.
Water and Kashmir have both remained emotive bilateral issues. During the 1980s, India planned the Tulbul navigation lock at the mouth of Wular Lake on the Jhelum, approximately 60 kilometres downstream of Srinagar. Pakistan feared that the project would also divert water for power generation and irrigation. The Indian ambassador in Pakistan accused the host government in 1986 of manufacturing a controversy through "high voltage publicity".
Present-day analysts have plausibly suggested that water’s role in the Kashmir dispute goes far beyond the Baglihar and Kishanganga projects. "Peace between India and Pakistan", writes Nasrullah Mirza, "is inconceivable without giving due consideration to the geographical imperatives" of the Indus river system. Robert Wirsing agrees, stating that "water’s exclusion from any plan of conflict resolution pertaining to the India–Pakistan dispute over Kashmir would kill the plan at its birth". Sundeep Waslekar, based on interviews with policymakers and military figures, identifies a shift in priorities. He argues that until the late 1990s, public debate never linked the Kashmir conflict to rivers. Instead it focused on issues such as terrorism, human rights and the legality of accession. In 1999, he continues, Pakistani Prime Minister Nawaz Sharif opened peace talks with India, suggesting that the Chenab could become an international border in Kashmir. General Pervez Musharraf ’s military coup against Sharif abruptly terminated those talks. But subsequent Pakistani proposals have redeployed the "Chenab formula".
At the time of writing, the website of the Pakistan military’s official Inter-Services Public Relations wing carried an article accusing India of using its position in Kashmir to wage a water war against Pakistan:
India is dotting the Kashmiri landscape with large and small dams that exceed its need and requirement. This massive dam build-up ignores the fact that it is happening on a disputed territory that remains on the U.N. Security Council agenda awaiting resolution. The Indian dam build-up is like creating a large valve that can be turned off any time to punish Pakistan, or to thirst it to death or surrender [sic].
Meanwhile, the Indian government continues to insist that Kashmir, or at least Jammu & Kashmir state, are integral parts of the Union. In 2014 and 2015 the governing right-wing Bharatiya Janata Party, under the leadership of Prime Minister Narendra Modi, tried and failed to scrap Article 370 of the Indian Constitution and thereby abolish Jammu & Kashmir’s special status.
But Kashmir was not the only place where the waters dispute collided sharply with competition to assert sovereignty. In the next chapter, we travel downstream to see how water exacerbated territorial tensions in Punjab’s riverine borderland.
(Re-printed with publisher's permission.)