1 February 2023

Demands to amend Indus Waters Treaty not new, but there’s a change this time

GS-2: India and its neighborhood- relations.

India has demanded modification of the 60-year-old Indus Waters Treaty (IWT) that governs the sharing of water from six rivers between India and Pakistan.

The notice, sent on January 25, comes after Pakistan's continuous objections to India's construction of hydel projects on its side. India is giving Pakistan 90 days to consider negotiating to rectify the treaty's material breach. The notice can be seen as a response to Pakistan's objections or as India's serious move towards treaty amendment. 

India's notice to modify the IWT is an opportunity to update the treaty and incorporate lessons learned over the past 62 years. The notice invokes Article XII (3) of the treaty, allowing for modification through a ratified treaty between the two governments.

The renegotiation of the IWT is not a new idea and the eventual outcome remains to be seen.

The Indus Water Treaty (IWT)

• The Indus Waters Treaty is a water-sharing treaty signed between India and Pakistan in 1960. 
• It was brokered by the World Bank[then the International Bank for Reconstruction and Development (IBRD)] and it governs the use of water from the Indus river and its tributaries, which flow through both countries.
• The treaty was signed on September 19, 1960, in Karachi and came into force on April 1, 1960.
• The IWT has served as a model for cooperation and has helped to ensure the equitable and sustainable use of the Indus river and its tributaries by both India and Pakistan.
• The treaty provides for the sharing of waters from the Indus river and its five tributaries (Jhelum, Chenab, Ravi, Beas, and Sutlej) between India and Pakistan.
• Under the treaty, India has exclusive use of the waters of the three eastern rivers (Ravi, Beas, and Sutlej), while Pakistan has exclusive use of the waters of the three western rivers (Indus, Jhelum, and Chenab).
• India is allowed to construct hydropower projects on the western rivers, subject to certain restrictions, while Pakistan has the right to unrestricted use of the water from these rivers.
• The treaty establishes a Permanent Indus Commission, which serves as a forum for consultation and the resolution of any disputes between the two countries.
• The treaty has been amended several times to reflect changes in the water situation and to address new challenges and concerns. 

• The most recent amendment was made in 1990.

• The treaty has survived several wars and military conflicts between India and Pakistan, and remains one of the few successful water-sharing agreements between two countries.

The history of the dispute over the hydel projects

• The IWT has been in dispute due to India's construction of two hydroelectric power projects on the Kishanganga and Chenab rivers. 
• Pakistan has raised objections and sought resolution through various mechanisms provided in the treaty. 
• In 2016, Pakistan requested a Court of Arbitration to settle the dispute, but India countered with a request for appointment of a Neutral Expert. 
• In the same year, a terror attack in Uri led to calls in India to withdraw from the treaty and a suspension of bi-annual talks between the Indus Commissioners of both countries.
• The World Bank was faced with two separate requests for the same dispute. 
• In 2016, the World Bank announced a "pause" in the processes initiated by both countries to allow for alternative dispute resolution. 
• Regular meetings of Indus Waters Commissioners resumed in 2017, but Pakistan refused to discuss the issues. 
• In 2022, the World Bank initiated actions on both India and Pakistan's requests and appointed a Neutral Expert and Chairman of the Court of Arbitration. 
• India expressed concern over the possibility of the two processes delivering contradictory rulings and assessing the matter, while stating that the implementation of the treaty must be in accordance with its provisions.

The dispute redressal mechanism laid down under the Treaty

• The IWT between India and Pakistan provides a 3-level dispute resolution mechanism. 

1. India must inform Pakistan of any planned hydroelectric projects under the Treaty and if Pakistan raises objections, the matter is first clarified between the Indus Commissioners.
2. If not resolved, the difference is then taken up by a Neutral Expert and the World Bank. 
3. If still unresolved, the dispute goes to a Court of Arbitration. 

• The mechanism is sequential and progresses from Indus Commissioners, to Neutral Expert, and finally to the Court of Arbitration.

India’s stand

• India has invoked Article XII (3) of the IWT to modify the Treaty, which is not a dispute resolution mechanism but a provision to amend it. 

• To make an amendment, a ratified treaty between both governments is required. 

• It is unclear what will happen if Pakistan does not agree to India's proposal within 90 days. 
• The next provision in the Treaty, Article XII (4), provides for the termination of the Treaty through a similar process — “a duly ratified Treaty concluded for that purpose between the two governments”.
• India has not specified what it wants to modify in the Treaty, but there has been growing demand in India to use the IWT as a strategic tool after the Uri attack, considering that India has a natural advantage being the upper riparian state. 
• India has not fully utilized its rights over the east-flowing rivers and has not adequately utilized its limited rights over the west-flowing rivers.
• India has established a task force to exploit the full potential of the IWT and is working to start several hydroelectric projects.

Reasons to renegotiate

• The IWT has been the subject of renegotiating calls for over two decades. 
• Pakistan has argued that it was unfairly allocated only 20% of the water flow and deserves a share of the Ravi, Sutlej, and Beas rivers as well. 
• The Treaty gave India full rights over these "eastern" rivers and most of the flow in the "western" rivers, Jhelum, Chenab, and Indus, was meant for Pakistan. 
• Climate change and advancements in water storage and management technologies have been cited as reasons for renegotiating the Treaty. 
• Pakistan is more concerned about climate change, which has led to a decline in the overall flows in the Indus river system and increased demand for water due to its rapidly growing population.

Accommodating new technologies

• The Indus Waters Treaty is highly prescriptive regarding the use of rivers by the upper riparian state i.e. India.
• However, modern dam and reservoir technologies differ greatly from those in the 1960s when the Treaty was signed. 

• Pakistan has frequently raised objections to India's use of newer technologies, as seen in the dispute over the Baglihar dam. 

• A flexible approach to technology and design in the Treaty could help mitigate the effects of climate change on water availability. 
• Renegotiating the Treaty could also address the need for joint management, greater flexibility in water utilization, and a basin-wide approach to river management. 
• Some in Pakistan hope that involving China as a party to the Treaty through renegotiation would neutralize India's advantage. 

• The Indus basin also covers China and Afghanistan.

Strategic move

• In 2016, India's move to modify the treaty was driven by strategic interest following the Uri attack. 
• India, being the upper riparian state, has the advantage of being able to inflict damage unilaterally. 
• India's previous governments had refrained from using the treaty as a strategic tool, but after the Uri attack, Prime Minister Narendra Modi's ‘blood and water cannot flow together’ remark and the suspension of routine meetings of Indus Commissioners signaled a change in India's approach. 
• The recent notice to Pakistan is another example of India's attempt to be unpredictable and escalate tensions with its neighbor, who heavily depends on the Indus basin rivers.

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