It’s clear that the Indus Water Treaty needs to be renegotiated, but the process is likely to be packed with troubles.
The Indus Water Treaty (IWT), one of the most effective water sharing mechanisms in the world, recently came back into the spotlight as a result of Indian action. In an official statement in January of this year, India announced its intention to amend the 62-year-old treaty with Pakistan. This action, which served to notify Pakistan and demand a response within 90 days, could cause the water sharing agreement to fall apart and trigger new round of negotiations.
For the first time since the treaty’s signing in Karachi on September 19, 1960, the notification initiated the procedure for amendments to the treaty. India took this action in retaliation for what it referred to as Pakistan’s “intransigence” in settling disputes regarding the Kishenganga and Ratle hydroelectric projects, both of which are situated in Jammu and Kashmir. Pakistan’s “unilateral” decision to approach an arbitration court based in The Hague was also opposed by India.
Late last week, Pakistan replied in a letter. Although the specific details of the reply have not been reported, some Pakistani media outlets have quoted anonymous officials as saying the reply indicated Islamabad’s willingness to discuss New Delhi’s concerns. A spokesperson for India’s External Affairs Ministry said the Indian side was examining the Pakistani response.
For a long time, the IWT has been the only stable area in the otherwise unstable relations between India and Pakistan. Since its inception, the treaty has drawn condemnation from both sides, but it has persisted nevertheless. Under the terms of the treaty, the waters of the eastern rivers (the Sutlej, Ravi, and Beas) are allocated to India and those of western rivers (the Indus, Jhelum, and Chenab) largely to Pakistan. As per the treaty, Pakistan is primarily responsible for managing the waters of the western rivers, while India is primarily responsible for those in the east.
Why India Demands Modification
The most crucial reason to alter the treaty is to clarify Article IX of the treaty’s dispute resolution system. According to the IWT’s guidelines, India may use the western rivers for non-consumptive purposes, such as the production of hydropower. But each time India has planned a hydroelectric project on one of the western rivers, Pakistan has challenged it by calling for international arbitration, preventing India from exploiting the water resources of these rivers. In this respect, Pakistan’s objection has evolved into a “new normal.” The two hydroelectric power plants, Kishanganga and Ratle, that India has planned for the Indus water system are the source of the present dispute.
According to the IWT provisions, there are three steps in the conflict resolution process: The Permanent Indus Commission (PIC), neutral experts, and the Court of Arbitration, mediated by the World Bank. In the above mentioned projects, Islamabad at first opted for the neutral expert option. However, a year after contacting the forum, it abruptly altered its mind and requested arbitration. Prior to Pakistan’s motion to appeal in the arbitration court, India had previously approved the appointment of the neutral expert, but it has since refused to cooperate. New Delhi’s aim was to avoid a conflicting situation by running two parallel proceedings. Therefore, India wants to include a provision in the IWT that calls for resorting to a neutral expert, and then only an arbitration court, for each difference or dispute in order to guarantee a graduated response.
India also mentioned climate change as a significant factor in its decision to alter the IWT. A parliamentary standing committee established by the government of India suggested renegotiation of the IWT in 2021, citing “pressing issues” like climate change and global warming as justification. The Standing Committees on Water Resources also stated in their report that the treaty did not consider climate change, global warming, environmental impact assessments and other “pressing issues” and as a result needed to be renegotiated to create the institutional structures and legislative frameworks necessary to manage such issues.
And so, the major concerns outlined by the Indian government are Pakistan’s noncompliance with the dispute resolution mechanism along with the perceived threat posed by contemporary challenges to the treaty.
The Possible Risks of Modification
Amid the challenging political climate, in which getting both neighbors to the negotiating table will be a herculean task, India has proposed to modify the treaty by using Article XII of the agreement. The modification will, however, rely on Pakistan’s response to the notice that has been given.
“One doesn’t know where these types of escalatory ladders will actually lead,” said Suhasini Haider, senior journalist for The Hindu.
If Pakistan doesn’t accept the plan, then India will probably escalate it to the next step, perhaps to abrogate the treaty. On the other hand, if Pakistan agrees to India’s request to renegotiate, it may claim that it wants to change other provisions of the agreement, such as forcing India to release more water to Pakistan or imposing more restrictions on its projects involving western rivers. As a result, negotiations might become even more challenging. Additionally, if India asks for the cancellation of the Indus Waters Treaty, it risks losing its credibility as a responsible global power.
Additionally, India is creating an international precedent by amending the treaty, not just a bilateral one, and this will have an impact on South Asia. India’s neighbors will be keeping a careful eye on the situation. Bangladesh, China, and Nepal all share rivers with India. All three countries are carefully monitoring the Indus Water Treaty dispute to see how India plans to resolve it. India may therefore encounter greater difficulties if it chooses to revoke the treaty.
Any renegotiation of the treaty may have to consider the adoption of a basin-wise approach in the management of the river waters. That will bring in other basin states, like China and Afghanistan. The presence of India and China in the Indus management regime would pose a major challenge to the stability of the management regime.
The concept of environmental flow has recently been incorporated into water management in many nations. However, the Indus Water Treaty’s initial version did not include this notion. As a result, if Pakistan, a lower riparian, demanded that a provision be added to the treaty that would make it necessary for India and Pakistan to keep a certain amount of river flow as an environmental flow, the existing system of water sharing between India and Pakistan would become unstable. India has been given access to the entire eastern waterway system. Therefore, Pakistan’s demand to keep environmental flow in these rivers’ may lead to a new problem in the region.
Along with the environmental flow, the concept of transboundary environmental impact assessment is becoming more and more popular worldwide. In accordance with Article 2 of the United Nations Economic Commission for Europe’s Convention on Environmental Impact Assessment in a Transboundary Context, “The countries shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.” This type of emerging idea might come up during treaty negotiations, which would call for greater mutual confidence and understanding between India and Pakistan.
At the end, it is clear that the IWT needs to be renegotiated, but the process of doing so is packed with troubles. However, if handed properly by both countries, a renegotiation may bring about a better version of the existing agreement.