Has Indus Water Treaty become obsolete?

The Indus Water Treaty (IWT) negotiated between India and Pakistan in 1960 is often regarded as a model of successful cooperation. How far this is true is debatable. However, the fact is that the IWT has bypassed the India-Pakistan bilateral discord and military confrontation. Indus river has been the lifeline of the inhabitants of the subcontinent for ages. The Indus waterways originate from the Indus basin, located in southwestern Tibet. From the foot of Himalayas, the water enters Kashmir, from there falls into the Arabian Sea, traversing Punjab. There have been instances where India has violated the IWT. The dams like Salal, Baglihar (built on Chenab) and Wullar Barrage, Kishanganga (on river Jhelum) are in violation of IWT. The treaty has awarded Pakistan the control of three western rivers namely Indus, Chenab and Jhelum. Pakistan has objected to India’s building of dams on western rivers. These dams are depleting the flow of water to Pakistan. These water reservoirs are targeted at weakening of Pakistan’s economy.

Back in 1999, Pakistan questioned India’s “minor modifications” in IWT. The minor modifications were against the pondage permissibility of treaty. Pakistan, in light of Article IX (5) of Annexure G in IWT, sought empanelment of the Court of Arbitration. The request for the Court of Arbitration was communicated to India. In response, India supported the presence of a Neutral Expert. World Bank, the negotiator of the IWT, decided to pause the dispute resolution mechanism. This pause was extended for more than five years. During this time, while Pakistan had its hands tied and could not avail any redressal options, India continued with the projects. The pause was lifted in 2022. Afterwards, India’s claim that Pakistan failed to follow a sequential path to dispute resolution was rejected. It was declared that there exists no ‘sequential’ protocol for dispute resolution. About the competing requests, Pakistan sought empanelment of the Court of Arbitration a month before India’s request for a neutral expert. Therefore, the legal process, as per customary law, initiates right away when legal help is sought. On January 27, 2023, the Court of Arbitration began its proceedings, which were boycotted by India. India sent a notice to Pakistan on January 25, 2023 to modify the IWT. Moreover, India expressed that intervention and/or mediation by any third party (even the broker World Bank) would be barred. In addition, India explicitly blamed both the World Bank and Pakistan for incapacitating the treaty by conducting simultaneous proceedings. India also threatened to unilaterally revoke the treaty in its entirety if its demands are not catered to. Lately, on July 6, 2023, the Permanent Court of Arbitration (PCA) in The Hague denounced India’s objections to Pakistan initiated procedure over water use in the Indus River basin. Pakistan had raised objection to India’s construction of the 330 megawatts Kishanganga project on Jhelum river and the plan to build 850 megawatts Ratle Hydropower project on Chenab river in Indian Illegally Occupied Jammu and Kashmir (IIOJK).

On the possibility of Indian revocation of the treaty, it is unambiguously stated in IWT that the treaty can only be terminated if another treaty is drafted and signed by both parties in its place. In case this does not transpire and either party revokes it, the said party would be violating the treaty. Therefore, the very question of unilaterally revocation of the treaty becomes obsolete. However, about the question of modifications in the treaty, they are much needed by both sides given the climate crisis and other multidimensional challenges.

In view of the climatic challenges the region faces, the issue of water cannot be termed a perfunctory dispute. Water should not be a bone of contention between the two nuclear countries rather a regional approach needs to be in place wherein through cooperative strategies, the issues of water and climate change should be addressed. It is in the interest of all.

Published in The Express Tribune, September 14^th, 2023.

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