Opinion Indus Water Treaty has been unfair to India. Delhi should abrogate it

The treaty gave Pakistan the right to inspect any construction by India on the rivers in J&K and invoke one of the two dispute settlement processes — a Neutral Expert or a Court of Arbitration. The World Bank became the treaty’s custodian with the power to appoint adjudicators. India also agreed to pay 62 million pounds to Pakistan for building link canals to switch from the eastern to the western rivers. An amusing provision was that the people authorised to nominate the arbitrators included the president of MIT and the rector of London’s Imperial College of Science and Technology.

The World Bank, which had started work on the treaty in 1952, succeeded when it got the US, UK, Canada, West Germany, Australia and New Zealand to underwrite a development fund of $1 billion for the construction of dams and irrigation networks in both countries. Pakistan got an additional $315 million. The Bank funded dams in both countries. When the IWT was signed, the process of codifying international law on the issue had not started. The international customary law, such as it was at the time, was disputed — upper riparians claimed sovereign rights over their waters and lower riparians demanded unimpeded flow.

The codification of the law on sharing river waters was set in motion by the UN General Assembly in 1970 when it tasked the International Law Commission to draft one on the non-navigational uses of international watercourses. Progress was slow. An initial draft had declared rivers as a “shared natural resource”. This was opposed by many countries and it eventually settled on a less ambitious formulation calling on countries to develop and share their rivers in “an equitable and reasonable manner”. The ILC completed its task in 1994 and the UNGA adopted the watercourses convention in 1997, with 103 countries voting in favour. China, Turkey and Burundi voted against it. India abstained, as did Pakistan. The treaty came into force in 2014, but only 43 countries have ratified it so far. India, China and Pakistan are not among them.

Sixty-five years on, the IWT remains well ahead of the evolution of international law. Its most unreasonable provision is the absence of an exit clause or expiry date. The Columbia River Treaty between the US and Canada, signed in 1961, is also permanent, but since 2024, it has a provision allowing either country to withdraw after giving a 10-year notice. Even the Vienna Convention of the Law of Treaties provides for the termination of a treaty if there are fundamental changes in circumstances.

It’s difficult to find any other example of an upper riparian giving the kind of rights India has. Pakistan’s friend, Turkey, refuses to enter into an agreement with Syria and Iraq, the lower riparians of the Tigris and Euphrates rivers. China too has no agreements with downstream countries in South and Southeast Asia on sharing the waters of Tibet’s rivers.

Despite getting a good deal, Pakistan’s approach to the IWT has been anything but cooperative. It has raised objections to every project conceived by India in J&K. In the 1970s, it disputed the Salal Hydroelectric Project on the Chenab. India was unwilling to invoke the dispute settlement mechanism and, in 1978, accepted Pakistan’s design changes. The dam was completed but its efficiency got impaired due to siltation. India started the Tulbul Navigation Project in 1984 but it remains incomplete due to Pakistan’s objections. When work started on the Baglihar project in 1999, India refused to remove the gated spillway, essential for desiltation, and let Pakistan take it to a Neutral Expert in 2005. Raymond Lafitte, the Swiss Neutral Expert, upheld the spillway, but allowed some minor design changes. The response in Pakistan was hostile, and there were calls for abrogating the treaty.

When the Kishanganga project started, Pakistan asked for a Court of Arbitration, which upheld the project with some design changes. Pakistan then raised questions about the design of the Kishanganga and Ratle hydel projects and the World Bank appointed a Neutral Expert. Pakistan also asked for a Court of Arbitration. The Bank initially resisted the idea since it could lead to contradictory decisions, but it eventually gave in. India, however, refused to participate in the arbitration proceedings and insisted that the Permanent Indus Commission should meet to modify the treaty to address the anomalies. In the absence of a positive response from Pakistan, the Commission has not met since May 2022.

India has now declared that it will keep the treaty in abeyance. This only gives temporary relief. It will have to remove any construction it does in this period when the treaty is reactivated if found to be in violation. The real issue is the unfairly high share of the water to Pakistan, which can only be corrected by a full-scale revision of the treaty. Pakistan’s reaction will be equally hostile to both steps. India may as well strengthen its hand by abrogating the treaty.

Sinha is an author and former diplomat