Unilateral modification impermissible under IWT
The writer is Chair, Lawfare & International Law at IPRI
On 25 January, 2023, India issued a notice to Pakistan, calling for the modification of the historic Indus Waters Treaty 1960 (IWT).
The water sharing arrangement was signed between the governments of Pakistan and India, following negotiations spanning nine years between the then newly formed states. Thirteen years after the partition of the Indian subcontinent, the IWT was signed, with the World Bank acting as a broker. The backdrop of this Treaty included more than a decade of hostility and mistrust between both countries amidst multiple other disputes that erupted following the creation of Pakistan and India.
The water of the Indus Basin was divided amongst Pakistan and India according to Articles II and III of the IWT. According to Article II, India has been given the waters of the Eastern Rivers, which include the Sutlej, Beas and Ravi. According to Article III, Pakistan has been given the waters of the Western Rivers, which include the Indus, Jhelum and Chenab. With regard to the waters of the other country, both countries were “under an obligation to let flow” the waters of the rivers designated to the neighbouring country.
Following a disagreement on the designs of the Kishenganga and Ratle hydropower projects, in 2016, Pakistan and India both made two different requests to the World Bank. Pakistan made a request for empanelment of the Court of Arbitration under Annexure G of the IWT. This was followed by India’s request for appointment of a Neutral Expert under Annexure F of the IWT. Although Pakistan’s request was first in time, the World Bank decided to start both processes simultaneously. However, due to problems related to continuing with the two processes concurrently, in December 2016, the World Bank “paused” the dispute resolution mechanism of the Treaty.
However, a settlement could not be reached between the two countries, primarily owing to India’s intransigent behaviour. Thus, in April 2022, the World Bank decided to continue with both — empanelment of the Court of Arbitration and appointment of the Neutral Expert.
As a response to this, two days before the hearing of the Court of Arbitration in The Hague, India sent a notice to Pakistan, calling for a modification in the IWT and asking Pakistan to respond to the notice within 90 days. India has taken issue with the simultaneous processes being initiated by the World Bank.
Legally, the IWT can only be modified, through another treaty, particularly drafted for that purpose. Article XII of the Treaty, dealing with termination and modification, clearly states that neither modification nor termination can take place without the consent of both Pakistan and India. Article XII(3) states, “[t]he provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.” The Treaty is clear that a modification treaty has to be drafted by both states and then ratified by both, to change the IWT.
It would be correct to assert that the IWT is not regime-specific, but rather state-specific. It will not expire or be changed with regime change. It is binding on both the states equally and offers no unilateral exit provision. Therefore, so far as the question of IWT is concerned, neither India nor Pakistan can unilaterally modify or revoke it unless it consults with the other party and obtains its consent in the form of a written agreement to that effect.
In the event that India unilaterally claims to have modified the IWT and refuses to abide by any of its provisions, the effect of that will be that the Treaty will remain valid in its original form and a violation of the Treaty would have taken place.
Legally, this would give Pakistan recourse to the Court of Arbitration, as provided in Article IX and Annexure G of the IWT. The entire dispute resolution mechanism will have to be followed to bring India to task for violating the Treaty.
However, it needs to be understood that such a unilateral action by India will have consequences that go beyond the legal realm and will have to be answered politically as well.
Published in The Express Tribune, February 22nd, 2023.
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