Pakistan’s response to India’s notice to modify the Indus Waters Treaty should be clear-eyed but cautious.
In an unprecedented move, India has issued a notice to Pakistan seeking to modify the Indus Waters Treaty (IWT) under Article XII (3).1 This provision allows for the agreement to be amended so long as both parties agree to another (modified) treaty. Pakistan has been given 90 days to respond to India’s notice and these will likely be spent in much wrangling over whether we should meet India at the negotiating table.2 Indeed many commentators argue that Pakistan needs to be clear-sighted and aggressive and avail the opportunity to modify the treaty so it better suits our needs. While the authors are sympathetic to this view, and are in fact quite partial to it, we argue instead that we need to be clear-eyed but cautious. India’s actions need to be situated within the wider perspective of its antagonistic actions in Kashmir, its hawkish claims to Pakistani territory, and the caravan of projects it is planning on the Western rivers of the Indus.
Moreover, India’s arguments that the IWT has been ‘endangered’ by Pakistan’s pursuit of parallel processes under the dispute resolution mechanism is a misconstruing of the treaty. The treaty does not envisage a nesting doll of dispute resolution in which one has to be exhausted before moving on to another. Instead, it provides for a fork in the road process dependent on the subject matter of the complaint. Therefore, India is not only diverting attention, but also grasping at straws as a reason for modifying the treaty. The treaty is by no means endangered by Pakistan’s actions, but if we are to haggle over modifications in the near future, we should be aware that we have some chips with which we can bargain. These include not only China being our ally and the uppermost riparian state, but also, crucially, our potential to provide an energy-hungry India with natural gas from Iran through a pipeline. These are all factors to consider if we want the IWT, or a modified IWT, to stand the vicissitudes of time and be more in line with our interests.
The IWT has been correctly hailed as a successful case study in cooperation over a shared and scarce resource as it has endured through over six decades and multiple conflicts between India and Pakistan. Both states have also used the dispute resolution processes enshrined in the treaty to resolve their issues. The Neutral Expert option was availed in 2005 to determine the Baglihar Dam issue and the Permanent Court of Arbitration (PCA) resolved a dispute in 2013 relating to the Kishenganga Dam project after bilateral negotiations failed.3
In July 2016, Pakistan objected to India’s 330-megawatt Kishenganga and 850-megawatt Ratle hydroelectric power projects on the Kishenganga and Chenab rivers.4 It believes that these projects would deprive it of its rightful share of waters under the IWT and will reduce the flow of the Chenab by 40 percent.5 According to World Bank’s statements on the matter, India had wanted a Neutral Expert to decide the issue, whereas Pakistan sought resolution through the Court of Arbitration.6 The World Bank placed a ‘pause’ on this issue in October 2016 stating that the two countries disagree over whether the technical design features of these plants accord with the IWT.7 It also acknowledged that pursuing resolution through both processes would pose practical and legal risks. The World Bank then removed this pause in March 2022 stating that “the lack of success in finding an acceptable solution over the past five years is also a risk to the Treaty itself” and has since allowed both proceedings to run concurrently.8 The organisation said it feared the stalemate over which process to choose endangered the treaty. The appointment of the Neutral Expert and a Court of Arbitration was announced by the World Bank in October 2022.9
India argues that ‘parallel processes’ were used instead of a ‘graded mechanism’, which is required by the IWT, and the risk of contradictory outcomes may create a legally untenable outcome which may endanger the treaty.10 It further states that the World Bank is not in a position to interpret the agreement. Therefore, India’s stance is that it has no option but to seek to modify the agreement.11 It has also contended that Pakistan has refused to discuss the issue during the five meetings of the Permanent Indus Commission (PIC) between 2017 to 2022.12 It is unclear what form this modification will take though it is expected that India will seek to change the dispute resolution mechanism. A series of tweets by Kanchan Gupta, a senior adviser at India's Information and Broadcasting Ministry, also said India wished to ‘update the IWT to incorporate the lessons learned over the last 62 years’.13
Meanwhile, Pakistan contends that India’s actions are ‘diversionary’ and that all processes have been set up in accordance with the IWT.14 The Court of Arbitration held its first meeting in these proceedings on January 27 and 28, 2023.15 India did not appear and declined to participate.16 The Court of Arbitration decided that India’s objection to the Court’s competence needs to be addressed before it proceeds and seeks further submission from the parties.17 It also stated that it is likely to issue a decision around June 2023 on the matter.18
India’s Actions in Context
After the Uri attack in 2016, Modi had said he would not allow even a drop of water from Sutlej, Beas, and Ravi to flow into Pakistan famously announcing that “blood and water cannot flow together”.19 Meanwhile, Pakistan has countered the Indian rhetoric by stating it will consider any diversion of water to be an act of war.20 Since then, however, India has fast tracked its hydropower projects and in August 2019, India annexed Jammu and Kashmir to its territory and bifurcated the territory into Jammu and Kashmir and Ladakh.21 The law passed to enact this annexation left vacant seats in the Legislative Assembly of Jammu and Kashmir for areas ‘under the occupation of Pakistan’, indicating its intention to lay claim to Azad Kashmir and Gilgit-Baltistan (GB).22 India has also opposed Pakistan’s construction of Diamer-Bhasha Dam in Gilgit-Baltistan, leading to the World Bank refusing to give funding to Pakistan for the project on the basis that India claims this as ‘disputed territory’.23 Since then, India has released a new map showing Azad Kashmir and Gilgit-Baltistan to be a part of India and releases meteorological data on these areas as a part of Jammu and Kashmir.24
Moreover, India’s Minister for Road Transport and Highways, Nitin Gadkari tweeted in 2019, “We will divert water from Eastern rivers and supply it to our people in Jammu and Kashmir and Punjab.”25 Pakistan has long believed that India weaponises the IWT to drive a wedge between Kashmiris and Pakistanis as the Jammu and Kashmir region remains purposefully energy-starved by India.26 As a result, given India’s actions in the last few years and the Hindutva regime in power in the country, Pakistan needs to be wary of any attempts to modify the treaty as it may be straitjacketed by India’s aggressive and antagonistic actions.
Dispute Resolution under the Indus Waters Treaty
Under the Indus Waters Treaty, there is no graded approach or nesting doll system of dispute resolution. Instead, there is more of a fork in the road process under which different issues can proceed to different forums. The dispute resolution envisaged under Article IX provides for different forums for questions, differences, and disputes. A question between the parties regarding the interpretation, application or breach of the treaty is to be examined by the “Permanent Indus Commission” as the first remedy.27 Under this, parties will go to the Commission, which is constituted by one commissioner from Pakistan and one by India, to solve the issue.28 If the issue cannot be resolved by the Commission, and the subject matter places it within the ambit of Annexure F of the IWT, it is a ‘difference’ and will be decided by a Neutral Expert.29 If the difference is not within this area or if the Neutral Expert is unable to resolve the issue, then the ‘difference’ is to be treated as a ‘dispute’ which is then sent to the Court of Arbitration.30 The Commission decides whether the issue is a ‘difference’ or a ‘dispute’ and the World Bank appoints the Neutral Expert and Court of Arbitration.31
Therefore, India’s argument that the pursuit of parallel processes ‘endangers’ the treaty does not hold water. The IWT itself envisages that some matters may proceed to the Neutral Expert based on them falling under Annexure F while others would go to the Court of Arbitration. A matter may hold a number of issues, some which could be decided by the Neutral Expert and others by the Court of Arbitration. While the same issue going to the Neutral Expert and Court of Arbitration could lead to the problem of contradictory outcomes, as noted by the World Bank, it is that organisation itself which has decided to allow these processes to run concurrently. It is not Pakistan’s doing. Therefore, India’s accusations against Pakistan are not tenable and indeed using the dispute resolution process itself is in line with the object and purpose of the treaty.
Grievances within the Treaty
Pakistan has opposed modification of the IWT while India has been in favor of it and is now actively courting it.32 There are some serious limitations in the treaty, namely that it does not factor in climate change as well as other hydrological issues.33 It presumes that the Indus basin would be enough to fulfil the water needs of both India and Pakistan, which is no longer viable given we now live in the age of the anthropocene. Moreover, it does not take into account other developments in the field of customary international law.34 Each side also has its own grievances with the treaty. India, for instance, believes that it does not receive enough water allocation under the treaty. India may seek to amend the treaty to gain a greater allocation of the Western waters which have been allocated to Pakistan.35 However, it will run into legal hurdles, especially in the form of the principle of equitable utilisation under which both upper and lower riparian states are entitled to a reasonable and equitable share in the basin.36
Pakistan views the IWT as a successful, yet at times ineffective endeavour in large part due to its dispute resolution mechanisms. It believes that India actually enjoys the waters of all six rivers as it uses its Eastern rivers for its own uses and the Western rivers are used for hydropower projects.37 Some academics have argued that India satisfies its ‘wants’ from the Indus whereas Pakistan is not even able to satisfy its ‘needs’.38 Meanwhile, the water in the Western rivers has decreased substantially and India plans to construct only more dams and barrages for water storage on these waters. India has continually failed to give six months’ advance notice to Pakistan before initiating the construction projects.39 Pakistan is, in any event, only able to object to technical aspects of these projects and cannot object to the construction of any dams tout court.40 This is an issue for Pakistan which falls outside the four corners of the IWT.41 The Court of Arbitration acknowledged this in the Final Award of the Kishenganga Arbitration in which it stated that giving Pakistan the ability to curtail Indian hydroelectric plants would go against the object and purpose of the treaty.42 It is a source of consternation for Pakistan that India’s caravan of projects can only be assessed within tightly circumscribed technical limits, rather than by virtue of the project as a whole.
Moreover, India has taken advantage of the incredibly slow dispute resolution mechanisms under the treaty by going ahead with its construction to the point that they are either complete or so advanced by the time the process has been invoked that justice is no longer tenable.43 This dispute resolution is not caused by either party but is almost inherent in the system, as arranging dialogue and meetings under the various processes often takes months.44 For instance, it took years for the Neutral Expert to decide on the Baglihar Dam dispute by which point India had completed more than 70 percent of the dam’s construction.45 While the decision was not in Pakistan’s favor anyway, if it had been, there would have been little that could be done without a stay on construction.46 Pakistan, if it agrees to negotiate, will seek to modify this process by placing time limits on it and perhaps by requesting an odd number of Commissioners on the PIC which is currently constituted by one commissioner from each country.47
Other Factors to Consider
Despite India’s aggressive posturing, it will face reputational repercussions if it were to take any unilateral actions or be overly difficult and its relationship with the World Bank may suffer as a result. However, its economic prowess may buttress this somewhat as is shown over its ability to strongarm the World Bank from funding the Diamer-Bhasha Dam. Though the international community may be forced to intervene if they believe a water war may be brewing between the two countries. There is potential for this as Pakistan is the third most water-stressed country in the world with only enough water storage to last 30 days if India were to shut off its water.48 Furthermore, Pakistan may look to China to intervene in its favor. China and India have become increasingly hardlined against each other along their disputed border, the Line of Actual Control.49 In 2020, Pakistan partnered with China on two hydropower projects, the Kohala and Azad Pattan projects, both of which are in Azad Kashmir on the Jhelum River.50 These projects focus on sustainable energy and low carbon forms of electricity. China also agreed to fund the Diamer-Bhasha Dam when the World Bank and Asian Development Bank (ADB) refused.51 This does indicate a willingness on the part of China to assert itself as the upper riparian.
A point of discussion in which Pakistan may be able to negotiate certain aspects of the IWT with India is the question of an Iran-Pakistan-India pipeline, also known as the ‘peace pipeline’.52 This would link the natural gas reserves in Iran with India and provide a source of energy which is much needed by our neighbor. Negotiations for this pipeline have remained pending and while India is now looking to other countries in Central Asia, such as Turkmenistan, to fulfil these energy needs, this pipeline may be a negotiating chip for Pakistan in renegotiations of the IWT, demonstrating that it has a role to play in providing India with energy.53
Commentators are calling this India’s ‘first shot’ at the treaty, however, it is worth remembering Judge Schwebel’s words when delivering the Final Award in 2013 of the Court of Arbitration in the Kishenganga dispute that “the Indus Waters Treaty was a great achievement of Pakistan and India and of the World Bank, and it remains so... and these proceedings are an illustration of its continuing vitality”.54 The IWT has been profoundly important to both India and Pakistan and for regional peace and development. The original treaty took years of negotiations and any modified treaty would likely take the same length of time. Given the current tensions between India and Pakistan, we should tread carefully in deciding whether we agree to negotiate. It may be more difficult to remove ourselves from the negotiating table once the ball is rolling. In the next ninety days, we should weigh our options and anchor our arguments delicately.
Ahmer Bilal Soofi is the former Federal Law Minister, President Research Society of International Law (RSIL), and Advisor, Center for Excellence of International Law, NDU.
E-mail: [email protected]
Ayesha Malik works as a Research Fellow and Team Lead Conflict Law Centre at Research Society of International Law (RSIL).
E-mail: [email protected]
1. The Indus Waters Treaty 1960, India-Pak, Sept. 19, 1960, 419 U.N.T.S. 125.
2. AA, India-Pakistan legal battle over water-sharing begins in The Hague, January 27, 2023.
3. Baglihar Hydroelectric Plant, Expert Determination, (Feb. 12, 2007); Indus Waters Kishenganga Arbitration (Pak v. India), PCA Case Repository, Final Award, (Perm. Ct. Arb. 2013).
4. AA, India-Pakistan legal battle over water-sharing begins in The Hague, January 27, 2023.
6. World Bank Press Release, World Bank Resumes Processes Under the Indus Waters Treaty, April 6, 2022.
7. World Bank Press Release, World Bank Declares Pause to Protect Indus Waters Treaty, December 12, 2016.
8. World Bank Press Release, World Bank Resumes Processes Under the Indus Waters Treaty, April 6, 2022.
9. World Bank Press Release, World Bank Holds Hand-Over Meetings with the Neutral Expert and the Chairman of the Court of Arbitration under the Indus Waters Treaty, November 21, 2022.
10. Scroll.in, Explainer: Why India wants to modify the Indus Water Treaty after 62 years, February 8, 2023.
12. AA, India-Pakistan legal battle over water-sharing begins in The Hague, January 27, 2023.
14. The Hindu, India sends notice to Pakistan to amend 1960 Indus Water Treaty, January 27, 2023.
15. Permanent Court of Arbitration, Press Release, Proceedings under the Indus Waters Treaty (Islamic Republic of Pakistan v. Republic of India), February 3, 2023.
19. See generally, Christopher R Rossi, 'Blood, Water, and the Indus Waters Treaty' (2020) 29 Minn J Int'l L 103.
20. See generally, Erum Sattar and Jason Robison and Daniel McCool, 'Evolution of Water Institutions in the Indus River Basin: Reflections from the Law on the Colorado River' (2018) 51 U Mich JL Reform 715.
21. ORF Online, Indus Waters Treaty: Opening the water front, Sushant Sareen, January 28, 2023.
22. The Constitution (Application To Jammu And Kashmir) Order, 2019 C.O. 272.
23. The Express Tribune, Diamer Bhasha Dam: World Bank, not ADB, presses for seeking Indian NOC, February 28, 2013.
24. The Lowy Institute, India draws the line on Kashmir, Christopher Snedden, November 8, 2019; The Tribune India, Indian Meteorological Department's forecast lists PoK, Gilgit-Baltistan, May 7, 2020.
25. Reported in The Diplomat, India Escalates Water Conflict With Pakistan, January 30, 2023.
26. Christopher R Rossi, 'Blood, Water, and the Indus Waters Treaty' (2020) 29 Minn J Int'l L 103.
27. Article IX(1).
28. Article VIII.
29. Article IX(2).
30. Article IX(5).
31. Explanation to Article IX(2) states: Provided that, at the discretion of the Commission, any difference may either be dealt with by a Neutral Expert in accordance with the provisions of Part 2 of Annexure F or be deemed to be a dispute to be settled in accordance with the provisions of Paragraphs (3), (4) and (5), or may be settled in any other way agreed upon by the Commission.
32. See generally Waseem Ahmad Qureshi, 'Equitable Apportionment of Shared Transboundary River Waters: A Case Study of Modifications of the Indus Waters Treaty' (2017) 18 San Diego Int'l LJ 199.
33. See generally, RSIL, Climate Change And Armed Conflict: Pakistan’s Vulnerability In The Coming Water Wars, Ayesha Malik, November 2020.
34. Institute of Strategic Studies, Filling the Missing Gaps in the Indus Waters Treaty, Ahmer Bilal Soofi, Jamal Aziz, Abeer Mustafa, May 2016.
35. Waseem Ahmad Qureshi, 'Equitable Apportionment of Shared Transboundary River Waters: A Case Study of Modifications of the Indus Waters Treaty' (2017) 18 San Diego Int'l LJ 199.
36. See Convention on the Non-Navigational Uses of International Watercourses, G.A. Res. 51/229, Art. 5.
37. Waseem Ahmad Qureshi, 'Equitable Apportionment of Shared Transboundary River Waters: A Case Study of Modifications of the Indus Waters Treaty' (2017) 18 San Diego Int'l LJ 199.
39. Michael John Cornell, 'Boundary Blurring in International Law: Globalization, Climate Change, and Cooperation in the Indus Basin' (2022) 18 Loy U Chi Int'l L Rev 75.
40. Institute of Strategic Studies, Filling the Missing Gaps in the Indus Waters Treaty, Ahmer Bilal Soofi, Jamal Aziz, Abeer Mustafa, May 2016; Dawn, The three-basket approach, Ahmer Bilal Soofi, January 31, 2017.
42. Indus Waters Kishenganga Arbitration (Pak v. India), PCA Case Repository, Final Award, (Perm. Ct. Arb. 2013) para. 413.
43. Michael John Cornell, 'Boundary Blurring in International Law: Globalization, Climate Change, and Cooperation in the Indus Basin' (2022) 18 Loy U Chi Int'l L Rev 75.
44. Waseem Ahmad Qureshi, 'Equitable Apportionment of Shared Transboundary River Waters: A Case Study of Modifications of the Indus Waters Treaty' (2017) 18 San Diego Int'l LJ 199.
47. As suggested in Manav Bhatnagar, 'Reconsidering the Indus Waters Treaty' (2009) 22 Tul Envtl LJ 271.
48. See New York Times, Pakistan’s most terrifying adversary is climate change, Fatima Bhutto, September 29, 2020; LEAD Pakistan, Basic Guide to Climate Change.
49. BBC News, India-China dispute: The border row explained in 400 words, December 14, 2022.
50. Dawn, Agreement for $1.5bn hydropower project signed, July 7, 2020.
51. Dawn, Rs442bn accord for construction of Diamer-Bhasha dam signed, May 14, 2020.
52. See generally Manav Bhatnagar, 'Reconsidering the Indus Waters Treaty' (2009) 22 Tul Envtl LJ 271 about Pakistan’s role in meeting India’s energy needs.
53. ibid; The Diplomat, India’s Plan to Realize TAPI, April 12, 2022.
54. PCA Press Release, "Indus Waters Kishenganga Arbitration (Pakistan v. India): Court of Arbitration Concludes Hearing on the Merits" (The Hague, 23 September 2011).
Read 1132 times