Why India wants ‘review & modification’ of Indus Waters Treaty

What is the Indus Waters Treaty?

The treaty between India and Pakistan was signed on September 19, 1960, for the use of water available in the Indus and its tributaries. It was signed in Karachi by then Prime Minister Jawaharlal Nehru and then Pakistan President Mohammed Ayub Khan after nine years of negotiations arranged by the World Bank.

According to the IWT, India enjoys the “unrestricted use” of the three “Eastern Rivers [Beas, Ravi, Sutlej]… except as otherwise expressly provided” whereas Pakistan got control of the three “Western Rivers” [Indus, Chenab, Jhelum]. According to Article III (1) of the IWT, “India is under obligation to let flow” waters of the Western Rivers to Pakistan.

In effect, the treaty gave India about 30% of the water carried out by the “Indus Rivers System” while Pakistan got 70% of the waters.

Why does India want to renegotiate IWT?

Sources said India’s latest notification highlights “fundamental and unforeseen changes in circumstances” that require a reassessment of obligations made under the IWT. Among New Delhi’s concerns, sources said, are the “change in population demographics, environmental issues and the need to accelerate development of clean energy to meet India’s emission targets, and the impact of persistent cross-border terrorism”.

Moreover, the two notifications come amidst a prolonged controversy over the construction of two hydel power projects by India in Jammu & Kashmir — one on Kishanganga, a tributary of Jhelum, in Bandipora district, and the other (Ratle Hydroelectric Project) on Chenab in Kishtwar district.

Both are “run-of-the-river” projects, meaning they generate electricity (330 MW and 850 MW respectively) using the natural flow of the river, and without obstructing its course. However, Pakistan has repeatedly alleged that both these projects violate the IWT.

What was behind the notice in January 2023?

At the time, New Delhi cited Islamabad’s continued “intransigence” in implementing the IWT by raising repeated objections to the two hydel projects.

In 2015, Pakistan requested the appointment of a “Neutral Expert” to examine its technical objections to the projects. A year later, it unilaterally retracted this request and proposed that the Permanent Court of Arbitration (PCA) adjudicate on its objections instead. India refused to engage in the PCA mechanism and made a separate request for the matter to be referred to a Neutral Expert.

Sources said Pakistan’s proposal for a PCA mechanism was in contravention to the graded dispute settlement mechanism provided in Article IX of the IWT. According to the treaty, there is a sequential, three-level mechanism where disputes are first decided at the level of the Indus Commissioners of the two countries, then escalated to the Neutral Expert who is appointed by the World Bank, and only then escalated to the Hague-based PCA.

The initiation of two simultaneous processes on the same questions — and their potentially contradictory outcomes — is not provided under any article of the IWT, and thus created an unprecedented, legally untenable situation.

The World Bank in 2016 “paused” the initiation of the parallel processes and requested India and Pakistan to seek an amicable way out. However, despite multiple attempts by New Delhi, Islamabad has refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2022, a source said.

In fact, at Pakistan’s continuing insistence, in 2022 the World Bank decided to initiate both the Neutral Expert and Court of Arbitration processes. This, along with the recommendation of a parliamentary standing committee in 2021, led to the January 2023 notice, the first in over six decades.

In 2021, the Departmentally Related Standing Committees on Water Resources had noted that “although the IWT has stood the test of time… the Treaty was framed on the basis of knowledge and technology existing at the time of its agreement in the 1960s… Present day pressing issues such as climate change, global warming and environmental impact assessment etc. were not taken into account by the Treaty.”

The committee, headed by the BJP’s Sanjay Jaiswal, had thus found that there is a need to “renegotiate the Treaty so as to establish some kind of institutional structure or legislative framework to address the impact of climate change on water availability in the Indus basin and other challenges which are not covered under the Treaty.”

So, what has changed since January 2023?

Here is a brief chronology of important events to have taken place since January 2023.

April 17, 2023: The sixth meeting of the Union Ministry’s Steering Committee on matters related to the IWT takes place. The Committee met under the Jal Shakti Secretary, and saw the Foreign Secretary of India in attendance. “The meeting took stock of the ongoing modification process of the IWT,” the MEA said after the meeting.

July 06, 2023: The PCA rules that it has the “competence” to consider matters concerning the Kishanganga and Ratle hydel projects. India responds by reiterating its “consistent and principled position” that the constitution of the “so-called Court of Arbitration” is in contravention of the provisions of the IWT.

September 20-21, 2023: A delegation from India, led by the Secretary, Department of Water Resources, attend a meeting of the Neutral Expert proceedings in the Kishanganga and Ratle matter in Vienna. Senior Advocate Harish Salve acts as India’s Lead Counsel in the meeting convened by the Neutral Expert, and attended by representatives of both India and Pakistan.

After the meeting, India reiterates its “treaty-consistent” decision to not participate in the parallel proceedings conducted by “an illegally constituted” PCA on the same set of issues pertaining to the Kishanganga and Ratle projects.