The Indus Waters Treaty (IWT), signed between India and Pakistan in 1960, has found renewed relevance in recent times as India sought a review and modification of the treaty, citing Pakistan’s refusal to resolve disputes over the Kishanganga and Ratle hydropower projects in Jammu and Kashmir. The request for review and modification from India comes after what it sees as a breach of the graded mechanism of dispute resolution set out in Article IX of the IWT. This article will examine the details surrounding these issues.
Historical Context of the Hydropower Disputes
In 2015, Pakistan requested the appointment of a Neutral Expert to examine its technical objections to the Kishanganga and Ratle Hydropower Projects (HEPs). However, just a year later, it retracted this request and suggested that a Court of Arbitration should rule on its objections. In 2016, Pakistan approach the World Bank, calling for the establishment of a Court of Arbitration in accordance with the treaty’s dispute resolution provisions. Rather than responding directly to Pakistan’s request, India filed an alternate application seeking the appointment of a Neutral Expert, arguing that a Court of Arbitration would violate the treaty’s dispute resolution procedures. As of March 2022, the World Bank has decided to resume the process of appointing a Neutral Expert and a Court of Arbitration Chairman.
The Indus Waters Treaty (IWT) Unpacked
The IWT was signed by India and Pakistan in September 1960 after nine years of negotiations, with the World Bank acting as a signatory. The treaty provides a framework for cooperation and information sharing between the two countries regarding the use of the waters of the Indus River and its five tributaries – Sutlej, Beas, Ravi, Jhelum, and Chenab. Under the treaty, the three western rivers – Indus, Chenab, and Jhelum – were given to Pakistan for unrestricted use, except for certain non-consumptive, agricultural, and domestic uses permitted to India. Similarly, the three eastern rivers – Ravi, Beas, and Sutlej – were given to India with no restrictions.
The Treaty’s Key Provisions
One of the IWT’s key provisions involves the distribution of the Indus River System’s waters between India and Pakistan. Under the treaty, about 80% of the total water share was given to Pakistan, with the remaining 20% allocated to India. The treaty also requires both countries to establish a Permanent Indus Commission, consisting of permanent commissioners on both sides. The commission is required to meet at least once a year.
Rights and Resolution Under the Treaty
While Pakistan holds rights over the waters of the Jhelum, Chenab, and Indus rivers, Annexure C of the IWT allows India to use these waters for specific agricultural purposes. Similarly, Annexure D permits India to construct ‘run-of-the-river’ hydropower projects. For dispute resolution, the IWT lays out a three-step mechanism under Article IX, where unresolved questions or “differences” can be referred to a Neutral Expert appointed by the World Bank, and ultimately to a Court of Arbitration, if necessary.
Kishanganga Hydroelectric Project
The Kishanganga project is a run-of-the-river hydroelectric scheme located 5 km north of Bandipore in Jammu and Kashmir, India. It involves diverting water from the Kishanganga River through a tunnel to a power plant in the Jhelum River Basin. The project, which started construction in 2007, has an installed capacity of 330 MW. However, the project faced objections from Pakistan, which argued that it would affect the flow of the Kishanganga River (referred to as the Neelum River in Pakistan). The Hague’s Permanent Court of Arbitration ruled in 2013 that India could divert all the water subject to certain conditions.
Looking Ahead
The ongoing situation calls for India to reconsider its commitment to the treaty’s provisions as its relations with Pakistan continue to be strained. Despite this, the potential for peaceful coexistence between the two countries is high, with the IWT often cited as an example. It remains to be seen how the proposed modifications will impact the two nations’ bilateral relationships and the future of the Indus Waters Treaty.
