The Zanskar River joins the Indus River near Leh in Jammu and Kashmir. Though the Indus flows through India before reaching Pakistan, the 1960 Indus Water Treaty allocates the basin’s three eastern rivers to India and its three western rivers to Pakistan. Photo courtesy Pradeep Kumbhashi via Flickr Creative Commons
by Zafar Iqbal Yousafzai 10 April 2023
The Indus Water Treaty (IWT), signed between India and Pakistan in 1960, is a remarkable achievement in the field of international water treaties. It is a unique example of cooperation and agreement between two historically hostile neighbors. The treaty defines the rights and obligations of India and Pakistan concerning the use of the Indus River system, and its five main tributaries, for irrigation, hydropower generation, and other uses. The treaty has remained in force despite wars, tensions, and military buildups between the two countries.
However, in recent years, the treaty has come under threat due to differences between India and Pakistan over the implementation of some of its provisions. India’s construction of hydroelectric projects on some of the tributaries of the Indus River has raised concerns in Pakistan, which fears that it will reduce the flow of water to its agricultural lands. India, on the other hand, argues that its projects are allowed under the treaty and that Pakistan is raising unnecessary objections.
One of the key differences between the two countries is the dispute resolution mechanism provided by the treaty. Article IX of the treaty provides for two options: a neutral expert’s determination or the appointment of a Court of Arbitration. The difference worth noting is that in the case of a neutral expert’s referral, the project under dispute is not stopped, but in the case where the project is referred to the Court of Arbitration, the project can be stopped. India, as per the provisions of the IWT, is supposed to inform Pakistan six months in advance before starting any new hydroelectric project. However, the dispute resolution mechanism of the Treaty remained “paused” for more than five years, which denied Pakistan access to redressal mechanisms under the Treaty. In the meanwhile, India was allowed to complete and inaugurate the Kishanganga Hydroelectric Power Project.
In 2016, Pakistan made a Request for Arbitration under Article IX(5) and Annexure G of the Treaty, which was transmitted and received by India on August 19, 2016. However, India opposes the Court of Arbitration, claiming that Pakistan’s request for arbitration is not covered under the IWT. India argues that Pakistan’s request is not covered under the treaty because it pertains to the design of India’s dams and not the water allocation under the treaty. However, Pakistan argues that the treaty covers all disputes related to the Indus River system, including the design of dams that affect the flow of water. Pakistan also argues that the treaty does not provide for any exceptions or carve-outs for disputes related to dam designs. Therefore, Pakistan’s request for arbitration is covered under the IWT.
India’s opposition to the Court of Arbitration is also based on its concerns that the decision of the court may have far-reaching implications for its hydroelectric projects on the Indus River system. India fears that the decision of the court may set a precedent that may affect its other projects on the river system. India also argues that the Court of Arbitration may not be a neutral forum and may favor Pakistan.
However, Pakistan has a strong argument that it is entitled to take its grievances under the treaty to the relevant forum. Taking the impasse to the World Bank-appointed Arbitration Court is not a breach of the IWT. The treaty provides for the appointment of an Arbitration Court in case the parties fail to resolve the dispute through other means.
After the existing ‘dispute resolution mechanism’ could not address Pakistan’s observations with regard to India’s dams’ (Kashanganga on Jhelum River and Ratle on Chenab River) designs, Pakistan approached the World Bank. The matter has been referred to the Arbitration Court, and India is likely to lose the case there. Taking the impasse to the World Bank-appointed Arbitration Court is not a breach of the Indus Water Treaty, as Pakistan has a strong argument that it is entitled to take its grievances under the treaty to the relevant forum. It is not a material breach of the treaty.
However, India has a different opinion. Both countries invoked two simultaneous forums for dispute resolution, instead of a ‘graded process’ on the ‘same question.’ India thinks this could lead to a potentially contradictory outcome; therefore, it constitutes a material breach and hence there is a need to ‘modify’ the treaty. But again, the institution which brokered the Indus Water Treaty has referred the matter to the Arbitration Court. Hence India’s observations are legally invalid. There is a sinister move on the part of India as it is trying to find lame excuses to unilaterally withdraw from the treaty.
A high-level meeting was reportedly held on September 27, 2016, in New Delhi, where Modi established an inter-ministerial task force to look into the treaty with a “sense of urgency.” However, such issues cannot be resolved under any bilateral mechanism. India has a worst record of throwing the issues into the ‘bin’ under the pretext of a bilateral approach.
Unilateral withdrawal from the Indus Water Treaty will be interpreted as a ‘breach of the treaty,’ and that is criminal. Pakistan would take the ‘breach of treaty’ as a crime. Disturbing the flow of rivers in violation of the Indus Water Treaty will be taken as ‘war’ against a sovereign country whose lifeline is choked. This time war will be horrible for the entire region as both countries are equipped with nuclear weapons. Breach of the Indus Water Treaty will also be a violation of the Vienna Convention on the Law of Treaties (1969) that binds states to follow the procedure agreed upon by them for withdrawal or termination. In this regard, State practice of complying with the treaties is heavily weighed against withdrawals around the world.
Therefore, it is imperative for both countries to resolve their disputes in a peaceful and diplomatic manner through dialogue and adherence to the Indus Water Treaty’s provisions. Any unilateral move by either country to modify or withdraw from the treaty will have grave consequences not only for the two countries but also for the entire region.