The Indus Waters Treaty (IWT), brokered by the World Bank, which has again become a source of contention between India and Pakistan, considerably encapsulates the principle of equitable allocation rather than the principle of appreciable harm.
Both India and Pakistan are granted exclusive rights to utilise the waters of the rivers allocated to them without harming others’ interests. Under the IWT, India has unrestricted use of the three eastern rivers (Ravi, Beas, and Sutlej), while Pakistan enjoys similar rights over the three western rivers (Indus, Jhelum, and Chenab). India is allowed to store 3.60 million-acre feet (MAF) (0.40 MAF on the Indus, 1.50 MAF on the Jhelum and 1.70 MAF on the Chenab) of water. The sector-wise allocation is 2.85 MAF for conservation storage (divided into 1.25 MAF for “general storage” and 1.60 for “power storage”) and an additional 0.75 MAF for “flood storage”.
The issue is India’s hydel projects
The core of the issue now between India and Pakistan involves the Kishanganga and Ratle hydroelectric power plants in India’s Jammu and Kashmir. India considers these projects crucial for energy needs and the region’s development, while Pakistan has raised objections, citing violations of the treaty and potential negative effects on its water supply which goes against the provisions outlined in Annexure D of the treaty.
Pakistan first raised its concerns over the Kishanganga project in 2006 and the Ratle project on the Chenab in 2012. In 2010, the dispute on the Kishanganga project was taken to the Court of Arbitration (CoA). Pakistan contended that India’s plan is not in line with Article III, Article IV (6) and Paragraph 15(iii) of Annexure D of the IWT. In 2013, the CoA delivered the final judgment, ruling that the Kishanganga hydroelectric project is a run-of-river dam, and India, under the IWT, can divert water from the river Kishanganga/Neelum for power generation.
However, the court stated that India has to maintain a minimum flow of water in the Kishanganga/Neelum river to nine cusecs (cubic metre of water per second). After the CoA’s judgment, the two countries reached an amicable resolution on only one out of four issues that were expected to be resolved. Despite several rounds of talks between the Indus Water Commissioners, Delhi and Islamabad could not resolve the other three matters relating to pondage and spillway configuration. Consequently, Pakistan went to the World Bank accusing India of violating the IWT and the court’s verdict. Islamabad also raised objections to the Ratle project.
In 2016, Pakistan requested the World Bank to form a CoA. To this, India requested a neutral expert be appointed to deal with the dispute. At that time, the World Bank paused the works on the Kishanganga and Ratle projects “to allow the two countries to consider alternative ways to resolve their disagreements”.
Despite the pause, works on the Kishanganga continued, and, in 2018, Prime Minister Narendra Modi inaugurated the Kishanganga project. A day before Mr. Modi’s visit to Jammu and Kashmir, at least nine people were killed on both sides of the border in firing by security officials from the two sides. Pakistan raised its concerns with the World Bank. In October 2022, the World Bank appointed Michel Lino as the neutral expert and Professor Sean Murphy as Chairman of the CoA.
India’s stand
On July 6, 2023, the Permanent Court of Arbitration, or PCA (chaired by Prof. Murphy), unanimously rejected India’s objections and confirmed its competence to consider and resolve the disputes raised by Pakistan. India has been abstaining from participating in the proceedings at the PCA and did not attend the present proceedings as well. On the question of its competence to take up such matters, the PCA, based on its interpretation of paragraph 1 of Annexure G and Article IX of, unanimously said that it is competent to “consider and determine the disputes set forth in Pakistan’s Request for Arbitration”.
After the PCA made its observations, India said that it cannot be “compelled to recognize or participate in illegal and parallel proceedings not envisaged by the Treaty”. India has been participating in the neutral expert’s proceedings whose first meeting was held at The Hague on February 27-28; the next meeting is scheduled in September.
A trust deficit
In a line of advice to address their disputes over shared waters, an Opinion article in The Hindu, “More than court action, revisit the Indus Waters Treaty” (July 20, 2023) observes that more than going to court, the need is to incorporate “equitable and reasonable utilisation” and the “no harm rule” in the IWT. Pragmatically, any such incorporation requires better ties and enduring trust between India and Pakistan. Due to a wide trust deficit between the two countries, there is a remote chance of Pakistan accepting India’s request to renegotiate to modify some of the provisions in the IWT.
Second, there is a need to involve local stakeholders also in any negotiation process between India and Pakistan on shared water issues. Also, a joint group comprising technocrats, climate experts, water management professionals, and scientists from both countries can be set up to look at the core of the problem. Third, to make the IWT work there is a need to explore cooperation arrangements mentioned in Article VII of the IWT. The two countries have to recognise their common interest in the optimum development of the Indus Rivers System. Finally, as the IWT was signed more than 60 years ago, an amendment or two or some may be needed due to changes in the situation in the Indus River Basin region. However, the provisions of the IWT cannot be modified unilaterally. Hence, any modification requires trust between the two riparian countries.