The Indus Water Treaty has entered turbulent waters, with India calling upon Pakistan to renegotiate the agreement on how the waters of the six rivers that are part of the Indus Basin are shared. While there have been disputes on water-sharing in the past, this time the mechanism to resolve disputes is itself the subject of controversy.
India has expressed its frustration with Pakistan’s push for simultaneous dispute resolution mechanisms, through a World Bank-appointed neutral expert and arbitration by a court, also constituted by the World Bank. The World Bank had facilitated the signing of the treaty in 1960.
Delhi has now called on Pakistan to renegotiate the Indus Water Treaty itself. But with Pakistan likely to turn down the proposal, the pact’s future has come under a cloud.
The Indus Water Treaty
India and Pakistan signed the Indus Water Treaty in 1960 with the World Bank as an additional signatory. The pact sought to divide the water of the Indus river and its tributaries equitably among the two countries. Under the treaty, water from three eastern rivers, Beas, Ravi and Sutlej, were allocated to India and that from the three western rivers – Chenab, Indus and Jhelum – to Pakistan.
The treaty also permits both countries to use the other’s rivers for certain purposes, such as small hydroelectric projects that require little or no water storage.
The treaty has largely ensured peace over water sharing, but there has been a long-standing dispute over the Kishanganga and Ratle hydroelectric projects, both located in the Union Territory of Jammu and Kashmir.
The Kishanganga project, in Bandipora district across the Kishanganga river, which is a tributary of the Jhelum river, was inaugurated in 2018. The Ratle hydroelectric project, over the Chenab river in Kishtwar district, is currently under construction.
Pakistan has raised concerns about the design of the Indian dams, meant for power generation, which it claims will obstruct the flow of the rivers that provide water for 80% of its irrigated crops, thereby accusing India of violating the treaty.
An interim order by a court of arbitration in 2013 had allowed India to resume construction of the Kishanganga dam. The order noted that preventing the diversion of water would have to be based on Pakistan’s demonstrated utilisation, which it did not have when the dispute began. But Islamabad says its concerns are important because water from the tributaries, which is used for irrigation, is necessary for food security, and the country’s economic and social stability.
Downstream, some of Pakistan’s biggest dams such as Mangla, are built on the Jhelum river. They produce a substantial proportion of Pakistan’s electricity.
India has denied these allegations and instead accused Pakistan of using delaying tactics around the treaty’s grievance redressal process.
Article 9 of the treaty outlines a dispute resolution process, breaking it down into three categories: question, differences and disputes. Under the treaty, the two countries have agreed to first attempt to resolve disputes through the permanent commission and seek the World Bank’s assistance in appointing a neutral expert or set up an arbitration at the Permanent Court of Arbitrage in The Hague, Netherlands, if required.
However, Pakistan first asked the World Bank to appoint a neutral expert as it was a “difference” and later sought an arbitration in 2016 as if the matter was a “dispute”, even though India had agreed to having a neutral expert.
This has led to two simultaneous and conflicting processes. Delhi has boycotted the arbitration proceedings that started on January 27.
The neutral expert mechanism is something India had found success with in the past. In 2007, the neutral expert had rejected Pakistan’s objections to the Baglihar dam across the Chenab river in Jammu and Kashmir’s Ramban district.
India opposes simultaneous proceedings
In 2016, the World Bank had suspended the parallel processes saying there was the risk of contradictory outcomes that could potentially endanger the treaty itself. But on February 3, the global lender said it was allowing the two separate processes to play out simultaneously citing the same reason.
“The World Bank considers that the lack of success in finding an acceptable solution, despite the best of efforts by all parties involved over the past years, is a risk to the treaty itself,” a spokesperson of the World Bank told Reuters. “It has therefore decided to resume the two separate processes requested by India and Pakistan.”
India has argued that having two parallel dispute resolution processes is not in line with the treaty, and that the World Bank is not in a position to interpret the pact. “I think it’s a treaty between our two countries,” Arindam Bagchi, spokesperson of India’s Ministry of External Affairs, said on February 2. “And our assessment of that, interpretation of the treaty, is that there is a graded approach.” Bagchi was referring to the graded dispute resolution process in the treaty.
He also pointed out that the World Bank itself had earlier vouched for a graded mechanism, which India is seeking. To resolve this problem of having simultaneous processes, the Indian commissioner to the treaty wrote to the Pakistani counterpart on January 25, seeking modification of the agreement itself.
An official, who did not wish to be identified, told the Hindustan Times on January 27 that Delhi was forced to seek this renegotiation as Pakistan’s position was harming the treaty’s provisions and implementation. “Pakistan’s intransigence on the treaty forced India to issue a notice of modification,” the report quoted the official as saying.
Islamabad has three months to respond to the notice. Yet, some suggest that Islamabad accepting Delhi’s proposal to modify the treaty could also come with several other points of negotiations from Pakistan, including more restrictions on India’s water usage. These added talking points will make the negotiations more complex than intended.
But if Pakistan does not accept the proposal, India can call for the treaty to be terminated, if required.
Scrapping treaty counterproductive
The Indian government has previously threatened to scrap the Indus Water treaty amid heightened hostilities with Pakistan. During a military standoff between both countries in 2001-’02, India’s Union Minister of State for Water Resources Bijoya Chakroborty had said that India could take such a diplomatic action. “If we decide to scrap the Indus Water Treaty, then there will be drought in Pakistan and the people of that country would have to beg for every drop of water,” Chakroborty had said in May 2002.
More recently, days after a terror attack on an Indian Army brigade headquarters in Uri in Jammu and Kashmir in September 2016, Prime Minister Narendra Modi had said at a meeting with the Indus Waters Treaty officials that “blood and water cannot flow together”.
In February 2019, following a terror attack in Pulwama in Jammu and Kashmir that killed around 40 security personnel, Union minister Nitin Gadkari said the government “has decided” to stop sharing water flowing into Pakistan.
In August 2019, Union Jal Shakti minister Gajendra Singh Shekhawat said the process of blocking water, without violating the treaty, had started. “Work has already begun to stop the waters that flow into Pakistan [under the treaty],” Shekhawat said.
However, experts such as Sharat Sabharwal, former Indian high commissioner to Pakistan, said that scrapping the treaty will bring no significant gains to Delhi. “The use of water as an instrument of coercion by India is an overblown option,” Sabharwal said.
“The treaty can be rescinded only through mutual consent,” he said. “A unilateral withdrawal by India would provoke an international campaign by Pakistan, which is likely to evoke sympathy among influential countries because of the precious resource involved.”