India has of late served a notice to Pakistan seeking modification of the Indus Water Treaty (IWT), which was inked by the two neighbouring nations in 1960 for sharing of water of a cross-border river system.
New Delhi earlier this week served the notice to Islamabad seeking changes in the IWT, in accordance with the Article XII (3) of the treaty itself. Prime Minister Narendra Modi’s government made the move just ahead of the commencement of the arbitration process in The Hague to settle the dispute between the two nations over Pakistan’s objections over the technical designs of the Kishenganga and Ralte hydroelectric projects being built by India.
A source in New Delhi said that India had been steadfastly adhering to the IWT and had been a responsible partner of Pakistan in implementing the treaty in letter and spirit. But, the source added, the provisions of the treaty had been breached and its implementation had been adversely affected due to the intransigence of Pakistan, leaving India with no other option except to seek changes in it.
The IWT had been signed by then Prime Minister Jawaharlal Nehru and his then counterpart, President Ayub Khan, on September 19, 1960. It survived several flashpoints in the perpetual conflict between the two nations, including the wars of 1965 and 1971 as well as the Kargil Conflict of 1999.
The treaty was inked after nine years of negotiations facilitated by the World Bank, which was one of its signatories and which continued to play a role in keeping the process of settling disputes on track.
Pakistan in 2015 requested the appointment of a Neutral Expert to examine its technical objections to India’s Kishenganga and Ratle Hydro Electric Projects (HEPs). It, however, unilaterally retracted the request and proposed that a Court of Arbitration should adjudicate on its objections. India perceived the unilateral action by Pakistan as a contravention of the graded mechanism of dispute settlement envisaged by Article IX of the IWT. New Delhi responded to Islamabad’s proposal for setting up a Court of Arbitration by making a separate request for the matter to be referred to a Neutral Expert.
New Delhi conveyed to Islamabad and the World Bank that the initiation of the two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes would create an unprecedented and legally untenable situation, which would risk endangering IWT itself. The World Bank acknowledged this itself in 2016 and took a decision to “pause” the initiation of two parallel processes and requested India and Pakistan to seek an amicable way out.
Pakistan, however, refused to discuss the issue with India during the five meetings of the Permanent Indus Commissioners from 2017 to 2022.
The World Bank acted on both requests and in October 2022 appointed Michel Lino as the Neutral Expert and Sean Murphy as the Chairman of the Court of Arbitration.
New Delhi is of the view that such parallel consideration of the same issues is not covered under any provision of IWT. Faced with such violation of IWT provisions, India has been compelled to issue notice to Pakistan, seeking modification of the treaty, said the source.
The notification issued by India will provide Pakistan with an opportunity to enter into intergovernmental negotiations within 90 days to rectify the breach of the IWT. This process would also update IWT to incorporate the lessons learned over the last 62 years, said the source in New Delhi.
The IWT, which was signed on September 9, 1960, granted control over the three “eastern rivers” of the Indus River System – Beas, Ravi and Sutlej – with an average annual flow of 33 Million Acre Feet (MAF) to India, while control over the three “western rivers” – Indus, Chenab and Jhelum – with an average annual flow of 136 MAF was given to Pakistan.
The treaty allowed India to construct run-of-the-river hydroelectric projects on western rivers as well as to build a storage capacity of 3.6 MAF water – 1.25 for general storage, 1.6 MAF for generation of hydroelectricity and 0.75 MAF for flood control. India, however, has not yet built any storage on the western rivers so far. India at present irrigates only 0.792 million acres of land, although the IWT allows it to do so over an area of 1.34 million acres with water from western rivers.
Though India has the absolute right to use the water of the three eastern rivers, it has not yet built the infrastructure to fully utilize its entitlement. About 2 MAFs of water from the eastern rivers are currently flowing from India to Pakistan.