The Indus Waters Treaty: Time to move ahead

Pankaj Saran and PK Saxena

Blood and water cannot flow together

In September 2016, Prime Minister Narendra Modi made what was one of the boldest statements on the Indus Waters Treaty by an Indian Prime Minister. He said, following the terrorist attack in Uri, that blood and water cannot flow together. The message to Pakistan was that it cannot run with the hares and hunt with the hounds. It cannot expect business as usual from India while waging a proxy war of terror and more against India. His remarks were a sign that India’s patience had finally run out.

The Prime Minister’s remarks however also reflected the deep seated conviction that India had given way too much to Pakistan in 1960 through the Treaty in the initial euphoria of trying to build good-neighbourly relations with a new born state, and belief in the principle of “fairness”.

Enter the World Bank

To further compound the error, the Treaty handed over a central position to the World Bank by making it the arbiter of disputes that may arise between the two countries. This faith reposed by India in the World Bank to act as a neutral party was yet another gross misjudgement after the naivete displayed in referring the invasion by Pakistani soldiers disguised as raiders and tribesmen into Indian territory to the UN a few years ago.

Time and successive events have shown that the trust reposed by India on both Pakistan and the World Bank has proved to be misplaced. It is only the current government that has become alive to the realities of the Treaty and ready to correct historical errors. Not many had wagered, for example, that there would one day be a Government in India that would abrogate Article 370 of the Indian Constitution.

As far as Pakistan is concerned, it has repeatedly used the Treaty provisions to block projects by India. The objections could not prevent the Baglihar and Kishenganga projects from being implemented and coming into operation in 2019 and 2018 or for the Ratle project to get final investment approval. They did however lead to significant time delays and cost overruns, the onus for which rests on Pakistan.

As far as the World Bank is concerned, its inability to deal with Pakistani challenges to the Kishenganga and Ratle projects in recent years reveal two flaws. One, the imperfections and ambiguities in the Treaty on dispute resolution and second, the lack of adequate technical and legal competence within the World Bank  to handle such disputes.

The case of Baglihar

The Baglihar Project is a good case study of Pakistan’s behaviour. It is a 450 MW run-of-river hydroelectric project located in Ramban district in the Union Territory of Jammu & Kashmir on the Chenab river. The project was conceived in 1992 and approved in 1996. India gave advance notice to Pakistan under provisions of the Treaty in May 1992. Pakistan's objections raised in August 1992 remained under discussion in the Permanent Indus Commission. In January 2005, Pakistan formally moved the World Bank for the appointment of a 'Neutral Expert’ to decide on the differences between the two countries, in response to which the World Bank appointed a Swiss expert a few months later. The ‘Neutral Expert’ gave his determination in February 2007, largely supporting the Indian position. This proved that Pakistani objections to Indian projects on the Western Rivers of the Indus, all run of the river, are more a reflection of Pakistan’s anxieties as a lower riparian, than an actual violation of the Treaty by India.

The case of Kishenganga

In 2007, Pakistan raised six objections on the 330 MW Hydro-Electric Project on the river Kishenganga, a tributary of the Jhelum river – four of them related to the design and two on legality of diversion and drawdown of water below the dead storage level. The matter remained under discussion in the Permanent Indus Commission till 2009. Even as discussions were in progress Pakistan decided to take the two legal issues to the Permanent Court of Arbitration. The Court gave its Final Award on 20 December 2013. While upholding the water diversion by India, the Court indicated that the minimum release of nine cubic meters per second should be maintained by India which can be reviewed by the parties after seven years, if necessary. The Court also held that India should not employ drawdown flushing meant for removing sediment from the reservoir of the Kishenganga Hydro-Electric Plant and her future projects on Western rivers.

This ruling is most significant because it effectively prevents India from using modern techniques that are being used around the world to remove sedimentation from reservoirs since these technologies were not available when the Treaty was signed. Denying India the option of using technological advances in dam construction has affected the longevity  of Indian projects on Western rivers. The irony is that Pakistan is itself using the same technologies in its own projects.

In 2016, even as the four design issues were under bilateral discussion, Pakistan, guided by political considerations, unilaterally approached the World Bank for constituting a Court of Arbitration. India argued that these issues are technical and requested for appointment of the Neutral Expert. Ignoring India’s repeated written advice, and after keeping the whole matter paused between 2016 and 2022, the World Bank simultaneously initiated parallel processes to satisfy both sides - appointment of a Neutral Expert in October 2022 and constituting a Court of Arbitration whose hearings began in January 2023. This was an extraordinary decision with no basis in the Treaty. The Bank’s actions were in clear violation of the Treaty. It has no mandate to unilaterally interpret the Treaty. India has refused to participate in the latter process.

The case of Ratle

Similar objections on the design aspects were raised by Pakistan on the 850 MW Ratle Project in 2012. These were also under discussion in the Commission till July 2015, but as in the case of Kishenganga, Pakistan unilaterally approached the Bank for a Court of Arbitration for Ratle.  

Compounded by illegal activities in POJK

Meanwhile, Pakistan has built or is building hydro-electric projects in territory which belongs to India in Pakistan Occupied Jammu and Kashmir, some with Chinese funding. These include the major Daimer Basha project and those in Mahl, Patrind and Gulpur on the River Indus and its tributaries.  

India throws the gauntlet

In January 2023, India finally served notice to Pakistan seeking amendments to the Treaty. This is a major and long overdue move which should have been done many years ago. In its notice, India has accused Pakistan of violating the “graded mechanism” of dispute settlement under Article IX, and has correctly pointed out that the first step has to be the appointment of a Neutral Expert. India has further accused Pakistan of refusing to discuss the issue during the Permanent Indus Commission meetings held between 2017 and 2022. India has thus drawn attention to Pakistan’s misuse of the Treaty, the lacunae in the Treaty itself and gone a step further by suggesting an “update” in the Treaty to take into account the lessons learnt over the last sixty three years.

It is understood that Pakistan has responded to India’s notice and stated that the proposal for amending the Treaty may be taken up in the Permanent Indus Commission. India has rejected this suggestion, arguing that the Commission is meant only for technical issues, not issues of substance relating to the Treaty itself.

The full import of these moves in the last few months has not been fully understood.

Fast-tracking at home

At the same time, India has been tardy in not fully utilising the share of water it has under the Treaty for power generation and irrigation. It is again the Modi government that has sought to correct this neglect.

Concerted action is now being taken by the Centre as well as the concerned State governments to fast-track various hydro-electric projects on the Western rivers. The Government has set up a Task Force  under the directions of the Prime Minister’s Office to ensure exercise of India’s rights under the Treaty. The second meeting of the Task Force took place on May 26, 2023 in Srinagar under the chairmanship of Deputy National Security Adviser Vikram Misri.

The nine main projects being fast-tracked include Ratle, Sawalkote, Kirthai-II, Kiru, Kwar, Sachkhas, Dugar, Kiru and Kwar, with a combined capacity of more than 6500 MW.

Nothing is cast in stone

International treaties enjoy acceptance and therefore legitimacy not only by force of law but also by virtue of being implemented in good faith by all sides and being equal and just. This is even more important when the parties to the Treaty are adversaries. Additionally, international agreements are not cast in stone. There are numerous instances where Treaties have been updated or modified, or otherwise have simply been relegated to the dustbin of history. Pakistan has flouted all norms of civilised behaviour and international principles governing inter-state relations by its brazen use of terrorism as a tool of war against India. Its expectation of compliance by India of bilateral agreements that suit Pakistan such as the Indus Waters Treaty is unrealistic.

Pakistan has overplayed its hands. Such brinkmanship has been the hallmark of Pakistan’s overall India policy. However the time for reckoning for Pakistan has come. Its free ride of the liberal share of the river waters granted to it under the Treaty, repeated attempts to veto India’s legally permissible usage as well as benefiting from the historical neglect by India to ensure full utilisation of its share can no longer be taken for granted. The time has come to move ahead.

(Exclusive to NatStrat)