The story so far: In a notice to Pakistan on January 25, India said that it has been compelled to call for the ‘modification’ of the 63-year-old Indus Waters Treaty owing to Pakistan’s persistent objections regarding India’s Kishenganga and Ratle hydropower projects in Kashmir. The notice was sent through Commissioners for Indus Waters that both sides have appointed under the treaty.
Besides, the two countries also hold a yearly meeting to discuss cooperation on the Indus River System, as prescribed under Article VIII of the Indus Waters Treaty signed by both in 1960, with the intervention of the World Bank. The Commissioners are required to meet at least once a year, alternately in India and Pakistan. The last time the commissions met was in May 2022 in Delhi.
What is the Indus Waters Treaty?
In 1947, the line of partition, aside from delineating geographical boundaries for India and Pakistan, also cut the Indus river system into two. Both the sides were dependent on water from the Indus river basin to keep their irrigation infrastructure functional and therefore, equitable distribution was needed.
Initially, the Inter-dominion accord of May, 1948 was adopted, where both countries, after meeting for a conference, decided that India would supply water to Pakistan in exchange for an annual payment made by the latter. This agreement however, soon disintegrated as both the countries could not agree upon its common interpretations.
Also read: How the Indus Treaty was signed
In 1951, in the backdrop of the water-sharing dispute, both the countries applied to the World Bank for funding of their respective irrigation projects on Indus and its tributaries, which is when the World Bank offered to mediate the conflict. Finally in 1960, after nearly a decade of fact-finding, negotiation, proposals by the World Bank and amendments to them, an agreement was reached between the two countries, and the Indus Waters Treaty (IWT) was signed by former Prime Minister Jawaharlal Nehru and then President of Pakistan, Ayub Khan. The former Vice President of the World Bank, W.A.B. Iliff, also signed it.
What are some of its key provisions?
The Indus river basin has six rivers- Indus, Jhelum, Chenab, Ravi, Beas and Sutlej; originating from Tibet and flowing through the Himalayan ranges to enter Pakistan, ending in the south of Karachi.
The treaty prescribed how water from the six rivers would be shared between India and Pakistan. It allocated the three western rivers—Indus, Chenab and Jhelum—to Pakistan for unrestricted use, barring certain non-consumptive, agricultural and domestic uses by India and the three Eastern rivers—Ravi, Beas and Sutlej—were allocated to India for unrestricted usage. This meant that 80% of the share of water or about 135 Million Acre Feet (MAF) went to Pakistan, leaving the rest 33 MAF or 20% of water for use by India.
It also required both the countries to establish a Permanent Indus Commission constituted by permanent commissioners on both sides. The functions of the commission include serving as a forum for exchange of information on the rivers, for continued cooperation and as a first stop for resolution of conflicts.
While Pakistan has rights over the waters of Jhelum, Chenab and Indus, Annexure C of the IWT allows India certain agricultural uses, while Annexure D allows it to build ‘run of the river’ hydropower projects, meaning projects not requiring live storage of water. It also provides certain design specifications which India has to follow while developing such projects.
The treaty also allows Pakistan to raise objections over such projects being built by India, if it does not find them to be compliant with the specifications. India has to share information on the project design or alterations made to it with Pakistan, which is required to respond with objections, if any, within three months of receipt.
Besides, India is allowed to have a minimum storage level on the western rivers – meaning it can store up to 3.75 MAF of water for conservation and flood storage purposes.
What are Pakistan’s objections over the Kishenganga and Ratle projects?
While the treaty has been regarded internationally as a successful diplomatic effort which managed to withstand three wars and multiple military impasses between the countries, with both countries largely sticking to its provisions, the journey has not been without conflicts.
In the past decades, Pakistan has raised multiple objections under the treaty, over India’s hydropower and dam projects on the western rivers.
One of the longest conflicts that arose from Pakistan’s objections to Indian projects on the western water bodies was over the Kishenganga Hydro Electricity Project (KHEP), which was initially a storage-cum-hydropower project.
Kishenganga also known as Neelum, a tributary of the Jhelum river, originates in J&K and joins the river in Pakistan occupied Kashmir. The work for KHEP was started in 2007, proposing to build a dam on the Kishenganga, diverting its water for a 330 MW hydropower plant in Kashmir’s Bandipora and sending it back. The work for the project was supposed to be completed by 2016, but before the construction started, Pakistan had raised objections regarding the height of the dam, fearing it would mean increased water storage for India. Consequently, India agreed to alter the design by lowering its height from 97 metres to 37 metres.
In 2010, Pakistan took the matter to the International Court of Arbitration at the Hague, this time, objecting to the diversion of water from Kishanganga. The Court gave its final ruling in December 2013, giving India a green signal for the project, subject to conditions.
The conflict however, did not end here, with Pakistan approaching the World Bank three years later in 2016 and again in 2018, objecting to the design. It also tried to stop the construction of the dam in 2016 by firing shells near the dam site in 2016. The project was then inaugurated in 2018, despite continued protests from Pakistan.
As for India’s 850 megawatt Ratle hydroelectric power project on the Chenab river, Islamabad has repeatedly raised concerns over its design, insisting that India would use the project’s reservoir to create deliberate and artificial water shortage or cause flooding in Pakistan.
India’s new call for modification of the Treaty comes from what it describes as Pakistani “intransigence” over its implementation.
The IWT also provides a three step graded dispute resolution mechanism, under which “questions” on both sides can be resolved at the Permanent Commission, or can also be taken up at the inter-government level. In case of unresolved questions or “differences” between the countries on water-sharing, such as technical differences, either side can approach the World Bank to appoint a Neutral Expert (NE) to come to a decision. And eventually, if either party is not satisfied with the NE’s decision or in case of “disputes” in the interpretation and extent of the treaty, matters can be referred to a Court of Arbitration.
India says that the dispute over the two projects has been brewing since 2015, when Pakistan asked for the appointment of a Neutral Expert to look into its objections to the Ratle and Kishenganga projects. Later in 2016, Pakistan changed its request and requested that the Arbitration Court should examine the issue. India followed this up by sending its own request to appoint an NE.
India now alleges that by unilaterally changing its request from one dispute resolution mechanism to another, Islamabad has violated the IWT. Besides, the World Bank recently moved to act on both requests- for appointing an NE and examination by the Court of Arbitration. Indian sources told The Hindu that “such parallel considerations on the same issues” were not covered under any provision of the IWT.
To resolve the long-standing dispute, India has called for the Treaty’s modification so that Pakistan is provided an opportunity to initiate “intergovernmental negotiations” within 90 days regarding the differences that the Indian side has described as a “material breach”. “This process would also update IWT to incorporate the lessons learned over the last 62 years,” said the source.
What have been the past objections raised under the treaty?
The treaty, according to observers, became a source of dissatisfaction between the two countries with growing demand for water, the extensively technical nature of the document rooted in its annexures and the fact that the western rivers flow through the conflicted region of Jammu and Kashmir.
Pakistan had earlier objected to the Salal dam project in 1970 over design concerns, negotiations for which ended in 1978. This was followed by the neighbouring country’s opposition to the 900 MW Baglihar Hydropower project, which involved the construction of a 150m tall dam on Chenab. The construction for the project started in 1999, but Pakistan raised objections soon after, finally threatening to invoke the arbitration provision in IWT to refer the matter to a Neutral Expert. The NE, Swiss Engineer Raymond Lafitte, gave his decision in 2007, upholding some of Pakistan’s objections while denying others.
In the 2022 meeting, Pakistan was expected to bring up its objections to three Indian Hydropower projects in the Chenab basin in Jammu and Kashmir- the 1000 Megawatt (MW) Pakal Dul project, the 48 MW Lower Kalnai project and the 624 MW Kiru project, aside from other smaller Hydropower units India wants to develop in Ladakh. India has maintained, however, that all the projects are in full compliance with the IWT.
What about geopolitical conflicts?
In recent years, the Indus Water Treaty has been brought up a couple of times during geo-political tension between India and Pakistan. In the aftermath of the attack on J&K’s Uri army camp in 2016, Prime Minister Narendra Modi had said, “Blood and water cannot flow simultaneously,” soon after which, the Permanent Indus Commission talks were suspended for that year by the Indian side, which also at one point threatened to walk out of the treaty.
Again in 2019, when the suicide attack was carried out in Pulwama, killing 40 CRPF personnel, India had for the first time threatened to cut off water supply to Pakistan from the Indus River System. Then Water Resources Minister Nitin Gadkari had said that India would stop its share of water flowing to the neighbour, in addition to diverting the water from the Eastern rivers, to supplying it to J&K and Punjab. He had later clarified, however, that restricting Pakistan’s supply would be in violation of the IWT, and required consideration of the Centre’s top brass.
IWT does not have a unilateral exit provision, and is supposed to remain in force unless both the countries ratify another mutually agreed pact.