Taking a serious note of Pakistan refusing to discuss issues regarding the Indus Waters Treaty (IWT) and terming it as “intransigence” in implementing the pact, India has sent a notice to its neighbour for modification of the treaty inked in 1960.
The notice for “modification” was sent on January 25 to Islamabad through respective Commissioners for Indus Waters, as per provisions of the treaty, sources said here on Friday. The action was necessitated as Pakistan refused to discuss and resolve the issue of India’s Kishenganga and Ratle Hydroelectric Projects for the last five years, despite India’s efforts, they said.
India is seeking modifications in the treaty to make it easier for Pakistan to enter into intergovernmental negotiations, within 90 days, and rectify the “material breach” of IWT. This process would also update IWT to incorporate the lessons learnt over the last 62 years.
“India has always been a steadfast supporter and a responsible partner in implementing IWT in letter and spirit. However, Pakistan’s actions have adversely impinged on the provisions of IWT and their implementation, and forced India to issue an appropriate notice for modification of IWT,” sources said.
Pakistan had in 2015 sought a neutral expert to examine its technical objections to India’s Kishenganga and Ratle Hydroelectric Projects.
However, it withdrew its request next year unilaterally and proposed that a Court of Arbitration adjudicate its objections. “Two simultaneous processes are in contravention of the graded mechanism of dispute settlement,” sources said, adding that India then made a separate request for the matter to be referred to a neutral expert.
“The initiation of two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes create an unprecedented and legally untenable situation, which risks 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,” sources said.
They said despite repeated efforts by India to find a mutually agreeable way forward, Pakistan refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2022. At Pakistan’s continuing insistence, the World Bank has recently initiated actions on both the neutral expert and Court of Arbitration processes, they said.
India and Pakistan signed the treaty in 1960 after nine years of negotiations, with the World Bank being a signatory of the pact.
The treaty sets out a mechanism for cooperation and information exchange between the two countries regarding the use of waters of several rivers.
It gives control over the waters of the three “eastern rivers” -- the Beas, Ravi, and Sutlej -- to India and control over the waters of the three “western rivers” -- the Indus, Chenab, and Jhelum -- to Pakistan. India has about 20 per cent of the total water carried by the Indus system, while Pakistan has 80 per cent.
The treaty allows India to put the western river waters to limited irrigation use and unlimited non-consumptive use for such applications as power generation, navigation, floating of property, fish culture, etc. It lays down detailed regulations for India in building projects over the western rivers. The IWT is considered one of the most successful water-sharing endeavours in the world today.
The notice will open up the process for making changes to the treaty for the first time since it was signed in Karachi on September 19, 1960, by then Pakistan president Mohammad Ayub Khan, then Indian Prime Minister Jawaharlal Nehru and WAB Ill of the World Bank.
The notice was issued in line with Article XII (3) of the treaty, which states: “The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.”
While explaining India’s move, the people noted that in 2015, Pakistan requested the World Bank to appoint a “neutral expert” to examine its technical objections to India’s Kishenganga and Ratle hydropower projects. In 2016, Pakistan unilaterally retracted this request and proposed a “court of arbitration” should adjudicate on the objections.
This unilateral action by Pakistan contravened the “graded mechanism of dispute settlement” envisaged by Article IX of the Indus Waters Treaty, the Indian side contended. India then made a separate request to the World Bank for the matter to be referred to a neutral expert.
At the time of independence in 1947, the boundary between India and Pakistan was drawn across the Indus Basin, leaving Pakistan as the lower riparian state. A dispute arose because some important irrigation works, including one at Madhopur on Ravi river and another at Ferozepur on Sutlej river, on which the irrigation canal supplies in Pakistan’s Punjab province were completely dependent, were left in Indian territory.
The treaty includes a mechanism for cooperation and information exchange regarding their use of rivers, known as the Permanent Indus Commission, which has a commissioner from each country.
According to the World Bank, the pact also has distinct procedures to handle issues - “questions” are handled by the commission, “differences” are resolved by a neutral expert, and “disputes” are referred to the court of arbitration, a seven-member arbitral tribunal.
The World Bank’s role is “limited and procedural”. Its role in “differences” and “disputes” is limited to designating individuals to fulfill roles as a neutral expert or in the court of arbitration proceedings when requested by either or both sides.
