India sends notice to Pakistan to amend 1960 Indus Water Treaty

Pakistan approaches the Permanent Court of Arbitrage at The Hague over two hydropower projects in Jammu & Kashmir; Indian officials say Pakistan stance is against the agreed mode of dispute resolution

January 27, 2023 11:40 am | Updated 10:29 pm IST - NEW DELHI

The Indus Waters Treaty of 1960, which settled the sharing of the Indus waters, is internationally regarded as an example of successful conflict resolution between two countries otherwise locked in a bad relationship. File

The Indus Waters Treaty of 1960, which settled the sharing of the Indus waters, is internationally regarded as an example of successful conflict resolution between two countries otherwise locked in a bad relationship. File

India announced on Friday that it wants to modify the 62-year-old Indus Water Treaty (IWT) with Pakistan, citing what it called Pakistan’s “intransigence” in resolving disputes over the Kishenganga and Ratle hydropower projects, both in Jammu and Kashmir. India also protested Pakistan’s “unilateral” decision to approach a court of arbitration at The Hague.

Sources said that the government had written to Pakistan on Wednesday, January 25, calling for modifications to the treaty as per Article XII (3) of the IWT that deals with the “final provisions” of the treaty. The first hearing of the Pakistani case at the Permanent Court of Arbitrage at The Hague in the Netherlands began on Friday, with India boycotting the court process.

The decision to issue notice to Pakistan, with a request for a response within 90 days, is a major step and could lead to the unravelling and renegotiation of the water sharing treaty. The treaty is often seen as a rare example of India-Pakistan consensus, at a time when the two countries have snapped trade and cultural exchanges, and most bilateral talks.

The sources said that Pakistan’s move to push the World Bank for a Court of Arbitration ran counter to the pre-existing channel of dispute resolution through a “neutral expert” appointed by the World Bank.

Incorporating lessons learned

Indian officials said that the “parallel processes” instead of a “graded mechanism” had led to a stalemate, adding that India was left with no choice but to demand that Pakistan come to the table to negotiate amendments to the treaty. Officials declined to comment on what specific modifications India would demand. Sources said that the clarification of the dispute mechanism was at the top of the agenda for renegotiation, adding that new inter-governmental negotiations on the IWT would be an opportunity to incorporate the “lessons learned” since 1960.

“The initiation of two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes creates an unprecedented and legally untenable situation, which risks endangering IWT itself,” the sources said, adding that “Pakistan’s actions have adversely impinged on the provisions of IWT and their implementation, and forced India to issue an appropriate notice for modification of IWT.”

‘Diversionary move’

When asked, Pakistan’s Foreign Affairs Ministry (MFA) said that the Indian reports on the notice were “diversionary” and that the Court of Arbitration had been set up “under the relevant provisions of the IWT”.

“As we speak, a Court of Arbitration is holding its first hearing in The Hague on Pakistan’s objections to the Kishenganga and Ratle Hydroelectric Projects,” Pakistan’s MFA spokesperson Mumtaz Zahra Baloch told reporters on Friday.

The World Bank declined to comment on the latest move by India. However, a World Bank statement on its current position, given to The Hindu, said that the World Bank had acted as “mandated by the treaty and that the preservation of the IWT is one of its “highest priorities”.

In October 2022, the World Bank had appointed neutral expert Michael Lino, and another expert Sean Murphy, as Chairman of the Court of Arbitration, and convened meetings with Indian and Pakistani officials in November to “handover” the process.

Treaty crucial for peace, development

“The Treaty has been a profoundly important international agreement in support of peace and development for South Asia and has been hailed as one of the most successful transboundary water management treaties in the world,” the World Bank said.

The Indus treaty, that divided up the six Himalayan rivers equally between India and Pakistan, allows India the unrestricted use of all water from the 3 eastern tributaries of the Indus river (Sutlej, Beas and Ravi) while Pakistan receives use of the western tributaries (Indus or Sindhu, Jhelum and Chenab).

Pakistan had first raised objections to India’s construction of the 330 MW Kishenganga hydroelectric project on the Jhelum river back in 2006, and then objected to plans to construct the 850 MW Ratle Hydroelectric Project on the Chenab river as well. Both India and Pakistan differred on whether the technical details of the hydel projects conformed with the treaty, given that the Jhelum and Chenab were part of the “western tributaries”.

Dispute resolution process

According to Article IX of the treaty that deals with the “Settlement of Differences and Disputes”, there are three possible steps to decide on objections raised by either side: working within the “Permanent Indus Commission” (PIC) of the Indian and Pakistani delegation of water experts that meet regularly; consulting a World Bank-appointed neutral expert: or setting up a court process to adjudicate the case through the World Bank and the Permanent Court of Arbitrage (PCA). However, while India has held that each step must be fully exhausted before both sides agree to moving on to the next step, Pakistan had moved on without waiting for India’s concurrence. The neutral expert last met with Indian and Pakistani negotiators in November 2022, while the Permanent Indus Water Commission last met in Delhi in May 2022, and is due to be held in Lahore this year.

In 2015, after nearly a decade of failing to resolve the objections, Pakistan approached the World Bank to appoint a neutral expert, but subsequently changed its stand and decided to ask for a Court of Arbitration. While the World Bank had put a pause on both processes in 2016, worried about the possibility that the two processes could produce conflicting verdicts, it removed its pause in March 2022.

The Indus Waters Treaty, which was signed in 1960 between India and Pakistan, has never been modified, and is often cited as one of the most successful international treaties in South Asia which has endured wars and tension between India and Pakistan. The treaty lays down terms of distribution of the waters of the Indus and its tributaries that support agriculture and other economic activities of both north India and Pakistan.

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