Delayed Decision Making, Climate Change and Technological Progress – Factors that Beg Rethinking the Indus Water Treaty

Understanding the Indus Basin Water Treaty (IBWT)

The Indus River Basin originates in the Himalayas, the Karakoram, and the western end of the vast Tibetan plateau, a region dubbed the “third pole,” as it contains the greatest amount of frozen freshwater next to the north and south poles. Glaciers at the third pole form a key source of flows in the IRB.

Ratified in 1960 with the intervention of the World Bank, India and Pakistan agreed to the Indus Waters Treaty (IWT) that successfully prevented water wars between India and Pakistan, despite several military conflicts. In this agreement, it was accepted that Pakistan would be given three western rivers and India would be given three eastern rivers. The Three western Rivers given to Pakistan were the Indus, Jhelum, and Chenab, and the three eastern rivers given to India were the Beas, Ravi, and Sutlej. This treaty also granted India some preferential privileges over non-consumptive applications.

Supporting the world’s largest irrigation system, the Indus Water Treaty is considered a successful agreement that has resolved the conflict between two countries, even though they fought four major wars against each other.

The treaty’s clauses dealing with the appointment of neutral experts or the International Court of Arbitration as well as the honest broker’s role for the World Bank, are unique to IWT, and mostly absent in other regional transboundary water agreements.

However, there is acknowledgment that certain technical specifications need updating, and the scope of the agreement should address climate change.

Objections Raised by Pakistan and the Indian Response:

In the aftermath of the 2016 Uri attack, India decided to restart the Tulbul Project on the Jhelum River in the Kashmir Valley, previously suspended in consideration to Pakistan’s objections.

After the 2019 Pulwama attack, the mandatory annual meeting of the IWT Commissioners has become irregular and the last meeting took place in May 2022 indicating that the IWT purpose of mutual cooperation is lost except its arbitration part. At the meeting between the two commissioners of Permanent Commission on Indus Waters (PCIW) in March 2022,

Pakistan raised objections over 10 hydropower projects, nine of them in the small power project category of 25MW and below. On these smaller projects, India had shared some data that Islamabad refused to accept. These projects included Kulan Ramwari, Kalaroos-II, Tamasha Hydro, Baltikulan, Darbuk Shyok, Nummu Chilling, Kargil Hunderman, Phagla and Mandi HEP.

On the issue of the 1,000MW Pakal Dal Hydropower project on the Chenab River, Pakistan Commissioner Indus Water (PCIW) informed that it had decided to invoke Article 9 of the treaty that provides for resolution of differences and disputes through various international forums of arbitration. Pakistan has serious objections over the spillway and freeboard of the project. It considers the design of the 330 MW Kishanganga project on the Jhelum and the 850 MW Ratle project on the Chenab, to be in violation of the Indus Water Treaty.

The Indian side agreed to examine Pakistan’s objections to 624MW Kiru and 48MW Lower Kalnai projects with an open mind. India stated that it was too early to invoke Article 9 of the treaty. New Delhi felt that discussions on the project at the commissioner level had not reached a stage where it could be taken to the international forum. It said it had attempted to address Islamabad’s concerns and was ready to do more to satisfy Pakistan. India agreed to provide additional data and try to address the concerns. It also agreed on getting the site of the controversial KishanGanga hydropower project inspected by Pakistani experts.

Neutral Expert or Court of Arbitration?

Both countries meanwhile have been pursuing two different conflict-resolution options. Pakistan took its case to the arbitration court in the Hague under Article IX of the treaty, and India has proceeded with the appointment of neutral experts. As the two processes were unleashed concurrently, it has created a risk of conflicting decisions. The World Bank, which is affiliated with the UN system, arbitrates water disputes between the two countries.

India has boycotted the proceedings of the arbitration court, and while Pakistan is seeking an ex parte decision from the court, India has already built the Kishanganga project. India has accused Pakistan of dragging out the complaints process and says the construction of its Kishanganga and Ratle projects is allowed by the six-decade-old Indus Water Treaty.

On 27 and 28 January 2023, the Court of Arbitration constituted pursuant to the Indus Waters Treaty held a first meeting in the proceedings commenced by Pakistan against India.

Having expressed the view that the Court of Arbitration is not competent to consider the questions put to it, which should instead be decided through an alternative process under the Indus Water Treaty involving a Neutral Expert (a highly qualified engineer), India did not appear and declined to participate in the first meeting of the Court of Arbitration. The Court of Arbitration acknowledged India’s objection and concluded it would consider India’s objection as a preliminary matter in an expedited proceeding and that its objection must be addressed before the Court takes further action. The Court will seek further submissions from the Parties in respect of India’s objection and anticipates issuing a decision regarding its competence in or around June 2023.” On 6 July 2023, the Court announced its partial verdict stating that constitution of the CoA on the changed request of Pakistan is valid under the provisions of IWT and it would only take up the disputes which are not in the domain of the neutral expert to avoid simultaneous proceedings on same matters by both CoA and neutral expert. The award of the ongoing Neutral Expert is expected by the end of 2024.

In September 2023, India and Pakistan attended a meeting convened by the Neutral Expert (NE) proceedings in Vienna upon India’s request.The Neutral Expert was appointed by the World Bank under Article IX of the Treaty, specifically to address technical differences between India and Pakistan regarding the two hydroelectric projects, Kishenganga and Ratle. Represented by Senior Advocate Harish Salve KC (King’s Counsel) acted as India’s Lead Counsel along with Anandh Venkatramani and Ankur Talwar. The MEA issued a statement that “India’s participation in this meeting is in line with India’s consistent, principled stand that as per the graded mechanism provided for in the Indus Waters Treaty, the Neutral Expert proceedings are the only valid proceedings at this juncture.” While Pakistan called the differences over the two projects “dispute,” India has defined it as a disagreement.

Indian Proposals to Amend Conflict-Resolution Clauses of the IWT:

Accusing Pakistan of dragging out the complaints process and in reaction to slow decision-making on its Kishanganga and Ratle hydropower projects, India has proposed that the IWT should be amended, for speedier resolution of bilateral water disputes. On 25 January 2023 India sent a notice to Pakistan demanding the modification of the Indus Waters Treaty alleging that the latter was repeatedly indulging in actions that are against the spirit and objective of the treaty. India invoked Article XII (3) of the IWT asking Pakistan to initiate negotiations within 90 days for amending the treaty by incorporating ‘lessons’ learnt over the last 72 years.

India wants the amendment to check third parties from intervening in disputes. It may be noted that the Shimla Agreement that was signed between the two countries in June 1972, months after the 1971 war, had explicitly committed that both countries would resolve their outstanding issues bilaterally. Furthermore, despite the fact that the delays in decision-making have been detrimental for Pakistan, the initiative to amend the treaty has come from India. Pakistan is yet to give a response to the January 25 notice.

The proposed changes in the treaty will make the IWT more functional, the Permanent Indus Commission (PIC) actually effective, and decrease acrimony between the two countries, particularly in the absence of any high-level political dialogue.

In the past six decades since its adoption, technological progress has outpaced the original intent and spirit of the IWT, which makes it imperative for both India and Pakistan to re-negotiate the Treaty under Article XII (3).

There is a need to re-examine the pact in the light of climate change. Ideally by adding or updating the treaty, India and Pakistan need collective response on climate induced water security and implementation of locally adaptive measures like water storage. India’s proposal to revisit the IWT is in fact an indication of recognising the new normal of climate change’. This strategic step bears the potential to unclog the long-blocked diplomatic relations between two countries.