The government’s decision to issue notice to Pakistan, calling for negotiations to amend the Indus Waters Treaty, must be considered carefully. New Delhi says this extreme step is due to Pakistan’s intransigence over objections to two Indian hydropower projects in Jammu and Kashmir: the 330MW Kishanganga hydroelectric project (Jhelum) and the 850MW Ratle hydroelectric project (Chenab). India has argued since 2006, when the objections began, that the projects were within the treaty’s fair water use. However, Pakistan has refused to conclude negotiations with India in the bilateral mechanism — the Permanent Indus Commission of experts that meets regularly — and has often sought to escalate it. As a result, the World Bank appointed a neutral expert, but Pakistan pushed for the case to be heard at The Hague. India has objected to this sequencing, as it believes that each step should be fully exhausted before moving on to the next. While India was able to prevail over the World Bank to pause the process in 2016, Pakistan persisted, and since March 2022, the World Bank has agreed to have both a neutral expert and a Court of Arbitration (CoA) hear the arguments. India attended the hearings with the neutral expert last year, but has decided to boycott the CoA at The Hague that began its hearing on Friday. New Delhi says as talks have hit a dead-end, it wants the entire treaty to be opened up for amendments and renegotiations. India’s accusations against Pakistan may be valid, given that Islamabad has failed to provide material evidence of the two projects hampering its water supply. The World Bank’s decision to hold two parallel adjudication processes is also perilous as there could be contradictory rulings. However, opening up the treaty for review has its own problems that India must deliberate on with a cool mind.
To begin with, the Indus Waters Treaty that decided the distribution of the six tributaries of the Indus or Sindhu between the two nations took nearly a decade to negotiate originally before its signing in 1960. Built in were mechanisms for coordination and dispute resolution that have held the treaty in good stead for at least half a century, and it has often been used as a template between upper riparian and lower riparian states worldwide. That it has endured despite conflict and political rhetoric between India and Pakistan is a testament to its text. In addition, if India and Pakistan have not been able to resolve issues over one case in their Indus Commission talks over 16 years, what guarantees are there that they can renegotiate the whole treaty within any reasonable time-frame? At a time when there is no political dialogue, trade and air or rail connectivity between them, reopening negotiations could open a new flank for India-Pakistan confrontation.
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