EXPLAINED: Can India and Pakistan unilaterally walk out of Indus Water Treaty?

Any future pact updation is an opportunity for both neighbors to enhance cooperation and joint management of shared water resources

Kashmir, FEBRUARY 9

In an unprecedented move, India on January 25, 2023, issued a notice to Pakistan, specifying the need to modify the Indus Water Treaty (IWT) 1960 that has so far survived wars and territorial disputes between the two nuclear neighbors. The notice was conveyed through respective commissioners for Indus Waters as per the provisions laid down in Article XII (3) of IWT, 1960. Here we explain what actually Indus Water treaty is and if any of the two countries, India or Pakistan can unilaterally cancel or withdraw from the pact.

Origins of the Treaty

The Indus Waters Treaty was signed in 1960 in Karachi following nine years of negotiations between India and Pakistan with the help of the World Bank, which is also a signatory to the landmark treaty that has survived frequent tensions, including wars and armed conflict over Jammu and Kashmir through which Indus waters flow.

The negotiations were the initiative of former World Bank President Eugene Black. Hailed as “one of the most successful international treaties” IWT as per a Word Bank Fact Sheet has “survived frequent tensions, including conflict, and has provided a framework for irrigation and hydropower development for more than half a century.”

Former U.S. President Dwight Eisenhower described it as “one bright spot … in a very depressing world picture that we see so often.”

How the Treaty Works

The Indus Water Treaty covers six rivers that flow across Jammu and Kashmir. Of these three rivers, called eastern rivers, flow through the Jammu province, whereas three rivers called Western rivers flow through the Kashmir province. One of the Western rivers, Indus, which originates in the Tibet region, now under Chinese control flows through Ladakh region, which formed part of the erstwhile J&K state (now Union Territory) before it enters Kashmir via Gurez and then flows into Pakistan.

The Treaty allocates the Western Rivers (Indus, Jhelum, Chenab) to Pakistan and the Eastern Rivers (Ravi, Beas, Sutlej) to India. At the same time, the Treaty allows each country certain uses on the rivers allocated to the other.

Mechanisms for resolving questions, differences & disputes

As per the World Bank, which is also a signatory to the pact, fact sheet IWT sets out a mechanism for cooperation and information exchange between the two countries regarding their use of the rivers. The mechanism is called the Permanent Indus Commission, which has a Commissioner from each country.

Apart from this the treaty also sets forth distinct procedures to handle issues that may arise:

  • Questions are handled by the Permanent Indus Commission which meets regularly.
  • Differences are to be resolved by a Neutral Expert as was done over Baglihar Project on Chenab river.
  • And “disputes” are to be referred to a seven-member arbitral tribunal called the “Court of Arbitration.”

Role of World Bank

On the other hand , apart from being one of the signatories to the treaty, the World Bank’s role is “limited and procedural”. In relation to “differences” and “disputes”, the role of World bank in particular is “limited to” the designation of individuals to fulfill certain roles in the context of Neutral Expert or Court of Arbitration proceedings when requested by either or both of countries.

What are current differences and disputes?

The current dispute pertains to concerns raised by Pakistan over “design features” of the 330-megawatt Kishanganga project located in Gurez valley of Bandipora district in north Kashmir, inaugurated by Prime Minister Modi in 2018 and the construction of the 850-MW Ratle project on the Chenab river in Jammu region of J&K.

The two countries, as per the World Bank “disagree” over whether the “technical design features” of these two hydroelectric power plants “contravene” the Treaty.

Both Chenab river as well as Kishanganag (Neelum in Pakistan) which is a tributary of Jhelum river form part of the “Western Rivers” to which Pakistan has “unrestricted” use with some exceptions under IWT. Under this Treaty, India is permitted to use the waters of these three rivers in “non-consumptive” way, which India interprets as permission to build “run-of-the-river” hydel projects that do not change the course of the river and do not deplete the water level downstream.

Modi First Spoke of Indus Water Treaty in 2016

Though India has now formally gone into the mode to seek “modification/updation” of the Indus Water treaty, Prime Minister Narendra Modi however, had hinted about reviewing the pact just after the 2016 Uri attack.

Modi was reported to have said that “blood and water cannot flow together,” as he chaired a review meeting of the 56-year-old Indus Water Treaty on Sept ember 26, 2016, just eight days after the deadly Uri militant attack.

During the meeting, it had emerged from the media reports, it was decided that India will “exploit to the maximum” the water of three eastern rivers-Indus, Chenab and Jhelum- in the hydropower, irrigation, and storage, over which IWT granted Pakistan exclusive control.

Moreover, the meeting also agreed to review the “unilateral suspension of the 1987 Tulbul Navigation Project, which was suspended in 2007. The 2016 review meeting, which was held in the backdrop of Uri attack and amid heightened tension between India and Pakistan, had also decided to set up an inter-ministerial task force to go into the details and working of the treaty with a “sense of urgency”.

Calls for Review of the Old treaty not new

Though the Modi government has taken a lead in issuing an unprecedented notice for reviewing or updating the Indus Water Treaty, experts on both sides have been voicing their concerns over the treaty and calling for its review.

Calls for reviewing treaty have grown

As per the concerns raised by Pakistan before different forums under IWT, it is concerned that India’s planned hydropower dams will cut flows on the river, which feeds 80 per cent of its irrigated agriculture. Over the years, it has asked for a neutral expert and then an arbitration court to intervene.

Although IWT framework regulating water distribution between the two states was generally accepted by both parties, the treaty has come under increasing tension as the conflict in of Jammu and Kashmir has deepened over the years, particularly after the 2019 Pulwama attack and abrogation of the special status of J&K, including Article 370 and 35A. Infact many analysts in India have termed the Modi Government’s IWT amendment notice to Pakistan as “ another Balakot moment”, while terming the notice “as a message to Pakistan that India would be unpredictable in its dealings with it, and would not shy away from escalation.”

Despite IWT surviving wars and ups and down as Indo-Pak bilateral relation, the allocation of control over the six river in J&K is still contested in both the countries and clamour for treaty’s abrogation or modification has grown in recent years on both sides.

Ambiguity in Treaty

Moreover, as pointed out by several experts, certain ambiguities have allowed India to build infrastructure legally, which Pakistan claims undermines its water security and the treaty itself. This ambiguity has led to polarised interpretations on both sides.

This “ambiguity” came to fore during the construction of Kishanganaga project. India as per the design of the project diverted waters from the Kishanganga river in Gurez valley through tunnels into the river Jhelum in Kashmir valley.

Pakistan raised the contention that under IWT India cannot change the course of the western rivers allocated to it by diverting waters or depleting the water by storing it. It argued that the Kishanganga project violates both conditions by changing the course of the river and depleting the water level.

India started work on the project in 2007, However, in 2010, Pakistan took the dispute over Kishanganga project to the Permanent Court of Arbitration at The Hague. The Hague Court stayed the project for three years and in 2013 gave a ruling which favored India. It ruled that the Kishanganga project was “a run-of-the-river plant within the meaning of the Indus Waters Treaty and that India may accordingly divert water from the Kishanganga (Neelum River) for power generation”.

Giving room to the concerns raised by Pakistan, the Hague court also ruled that India was under an obligation to “construct and operate” the Kishanganga dam in such a way that it “maintains a minimum flow of water in the river”. , which was fixed at 9cumecs, a unit of flow equal to one cubic metre of water per second.

After the Hague Court verdict though India announced that it was lowering the height of the dam from the planned 98m to 37m and resumed construction at full swing, the dispute over the project still persisted with Pakistan accusing India violating the treaty as well as the court’s verdict as far as Kishanganga power project is concerned.

India has been maintaining that Pakistan’s objections were technical in nature, which can be resolved bilaterally or by a neutral expert. Disagreeing with this view, Pakistan has taken a position that a decision by a technical expert ( Neutral Expert) was non-binding and India would be under no obligation to implement the expert’s recommendation.

Both sides have criticized the treaty

Though the matter over Kishangaga and Ratle projects is before a neutral expert and also the Hague Court, the process of conflict resolution has earlier been invoked only once since the signing of the treaty. It was successful in settling the disagreement over the Baglihar dam.

However, like India, Pakistan also continues to express its dissatisfaction with the IWT and had in the past also suggested that the treaty be reviewed. Moreover, observers and experts from both sides have criticised the treaty as “outdated and for being an obstruction to the effective exploitation of the Indus River’s resources, as it limits possibilities for storage.” (Jayaram, 2016).

It has also been pointed out that the IWT “does not take into account effects of climate change” and also the joint management and collaborative efforts as far Indus water resources are concerned.

Failure of Indus Commission to resolve the issue

As both India and Pakistan failed to reach any consensus over Kishanganga and Ratle power projects design , Pakistan in 2016 asked the World Bank to “facilitate” the setting up of a Court of Arbitration. India on the other hand asked for the appointment of a Neutral Expert for the same purpose. However, on December 12, 2016, World Bank World Bank decided to “pause” both the requests to what it said was aimed at “protecting” the Treaty “in the interests” of both countries.

As the five years of “joint efforts” did not “yielded a solution” with both the countries not able to agree on a mutually acceptable forum, the World Bank finally lifted the suspension on March 31, 2022..The bank resumed the process of appointing a Neutral Expert and a Chairman for the Court of Arbitration, but by this time , India had built the Kishanganga project.

As per reports, India has however decided not to participate in the proceedings of the Court of Arbitration, which reportedly held its proceedings on January 27, 2023 in Hague.

Indian government sources pointed that that “parallel consideration” of the same issued by a Neutral Expert and Court of Arbitration “is not covered under any provision” of the IWT.

Accusing Pakistan of “intransigence” these sources also pointed out that “despite repeated efforts by India to find a mutually agreeable way forward , Pakistan refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2021.”

On the other hand, Pakistan, as experts point out, has been weary of relying on the opinion of the Neutral Expert as it is not “binding” on the parties, whereas any injection by the Court of Arbitration, is binding on both sides.

India weary of Third-Party Intervention

Weary of third-party intervention in Indo-Pak disputes, India has through recent notice has asked Pakistan to “change” the Indus Waters Treaty by “barring third parties” from intervening in disputes. India has been insisting that IWT is a bilateral treaty and third party should not be required.

As per the notice, sources pointed out, India wants the Pakistan to “enter into intergovernmental negotiations” within 90 days to “rectify material breach of IWT” and also update the treaty to “incorporate lessons learned over the last 62 years”.

Can India cancel the pact unilaterally?

Bravado over notice to Pakistan by certain observers and a section of media in India, the question that need to be asked is if it is possible for either India or Pakistan to unilaterally cancel or walk out the pact.

The answer lies in the wording of the treaty, which has no provision for either country to unilaterally walk out of the pact. Article XII of the IWT thus says, “The provisions of this Treaty, or, the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments.”

In this backdrop, it implies that if India wants to go about abrogating it, the country should abide by the 1969 Vienna convention on the law of treaties.

Concept of upper and lower riparian states

Several analysts have warned that the “current events surrounding the Indus Waters Treaty have consequences beyond India and Pakistan” and can make “transboundary cooperation” with other neighbouring countries like China, Nepal, Bangladesh or Bhutan “more difficult, not less

To understand the nuances and how interstate rivers or waters are shared, there is a concept of upper riparian and lower riparian. Upper riparian is a place where the river originates and lower riparian is where it ends. Under international law, an upper riparian can never stop the flow of water to the lower riparian.

The Bramhaputra river too originates in China and flows to India. Likewise Indus river also originates in the Tibet region of China before it or its tributaries enter Ladakh or Kashmir.As such many experts and analysts have cautioned that any unilateral revocation of an internal treaty can also lead to China consider such a possible measure in the near future where it might cite India’s example of what it possibly did to Pakistan.

Moreover, divisive political narratives in both India and Pakistan have generally been associated with a increasing the likelihood of conflict between the two nuclear armed neighbours. While as militant attacks in India blamed on Pakistan sponsored militants have been used to “justify backing away from diplomacy” and weaponising shared Indus waters, in Pakistan radicals and fundamentalists have blamed floods in the country on poor water management in India.

Future Outlook

Moreover Pakistan also fears that India may use its upstream dams to control flow of water in rivers downstream that flow from India into Pakistan during war situations or drought periods.

It is this inherent suspicion and mistrust between the two states that has also been used to provoke anti-Indian sentiment in Pakistan, providing fertile ground for further hostility and conflict between the two neighbours besides hindering regional cooperation and joint management of shared Indus waters.

It is yet to be seen how Pakistan responds to the Notice by India to amend or update the IWT. But if both countries agree for amendment or updation of the treaty, it may also provide an opportunity to the two estranged neighbours to usher the region into a new era of cooperation and also a joint management of their scarce , shared water resources.

The Kashmir region many provide an opportunity for the two nations to jointly manage and operate the hydel power projects to harness the potential of its rivers to the maximum.

This may also satisfy the people of Kashmir who have been ruing the losses suffered by them on account of the IWT and have been clamouring for handover of the power projects to the people of J&K.

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