During the fourteen years after the signing of the IWT, India and Pakistan were preoccupied with actions relating to their entitlements pertaining to the waters of the six rivers as defined by the treaty.
India focused on the means of utilising the waters of the three eastern rivers assigned to it for irrigation and other uses in East Punjab, Rajasthan and Haryana. Pakistan had to make extraordinary efforts to build an enormous civil works infrastructure, including large storage dams, for utilising the waters of the western rivers for perennial irrigation, hydropower generation, and other water needs of areas previously served by the eastern rivers.
Since 1974, all the differences and disputes over the implementation of the IWT relate solely to India’s hydroelectric plants on the western (Pakistani) rivers as if the only purpose of the treaty was to facilitate India’s utilisation of the flows of western rivers for producing electricity. The first dispute related to the Salal Dam on the Chenab River. In I974, Pakistan objected to the design of the plant which, it alleged, violated the provisions of Annex D of the IWT on the designs of permissible Indian hydroelectric plants (HEPs). The Indus Commission having failed to find a solution, the dispute was discussed by the foreign secretaries. India agreed to design changes sought by Pakistan and an agreement was signed by the foreign ministers in April 1978.
The second dispute arose in 1985 and relates to what India calls the ‘Tulbul Navigation Project’ and Pakistan calls the Wullar Barrage. The project provides for the construction of a barrage on the Jhelum River at the mouth of the Wular Lake, 30km north of Srinagar in Indian-administered Kashmir. In 1986-7, Pakistan opposed the project on the ground that it would create water storage exceeding the limit allowed by the IWT.
India asserted that the barrage was not solely for power generation but also for regulating water release to ensure year-round navigation between Srinagar and two other towns. However, in 1987, India suspended work on the project. Since then, multiple high-level meetings between India and Pakistan have failed to resolve the dispute. Meanwhile, improved road links have reduced the project's urgency.
Another dispute concerns the 900MW Baglihar hydroelectric project on the Chenab, upstream from the Salal Dam. Construction began in 2000, but Pakistan objected to aspects of its design, particularly the low-gated spillways, arguing they would increase storage capacity. India defended the design, citing the need to prevent reservoir silting, as seen with the Salal Dam.
Talks between the Indus Commission and water resource officials failed to resolve the issue, leading to its referral to a neutral expert in 2005. In December 2007, Swiss engineer Professor Raymond Lafitte upheld the dam’s design, citing modern engineering standards. Pakistan, however, remained dissatisfied with the verdict.
The fourth dispute relates to the construction of India’s Kishanganga Hydroelectric Plant (KHEP) located on the Kishenganga /Neelum River in the Gurez Valley in Indian- administered Kashmir. The project was initially designed by India in 1994 as a storage project, but the design was altered to make it ‘run of the river’, permissible under the IWT.
Pakistan opposed the project on several grounds; the dispute was referred to a Court of Arbitration which was constituted in December 2010. The Court gave its Final Award in December 2013 which allowed India to build the KHEP but directed it to effect changes in the design of the project to reduce its adverse impact on agriculture in Pakistan. India was obligated to build and operate the plant in such a way as to maintain a minimum flow of water (8 cusec) in the Kishanganga/ Neelum River. Subsequently, India completed the construction of the Kishanganga project which was inaugurated by Prime Minister Narendra Modi on May 19, 2018.
During the meetings of the PIC, Pakistan raised several objections to the design of the Kishanganga HEP and the 850MW Ratle Hydropower plant on the Chenab River in the Kishtwar District of Kashmir (RHEP). Pakistan complained that the changes in design made by India did not comply fully with the verdict of the Court of Arbitration.
In 2015, Pakistan proposed the appointment of a neutral expert to resolve the differences between the KHEP and the RHEP. India argued that the issues could be addressed by the PIC. In March 2016, Pakistan demanded the establishment of a Court of Arbitration, arguing that the differences involved both engineering and legal issues. In August 2016, the Indian government agreed to the appointment of a neutral expert but Pakistan persisted in demanding a Court of Arbitration. Both countries pressed the World Bank to act on their request.
The World Bank tried to promote an agreement between India and Pakistan on the means of arbitration but failed. In August 2016, the Bank announced a “pause” in acting on the conflicting requests of India and Pakistan and urged them to jointly suggest a course of action. It could not get a positive response. In March 2022, the World Bank announced that it had ended its ‘pause’. In October, it announced the appointment of Swiss Engineer Michel Lino, currently president of the NGO International Commission on Large Dams (ICOLD), as neutral expert, as demanded by India, and the appointment of Sean Murphy, law professor at the George Washington University, to chair a Court of Arbitration, as requested by Pakistan, to settle the differences over the Kishenganga and Ratle hydropower projects.
India opposed the operation of two parallel processes for resolving the same issues which, it contended, carried the risk of contradictory outcomes that would create a legally untenable situation and endanger the IWT. The World Bank countered the Indian objection by saying that, “the lack of success in finding an acceptable solution over the past five years is also a risk to the treaty”.
The Court of Arbitration convened its first meeting on January 23, 2023. India boycotted the court and has not attended its sessions. In a press release on February 3, the court acknowledged India’s objections to the court’s competence, adding that “the objections must be addressed as a preliminary matter in an expedited proceeding”. The court stated that it would seek further submissions from the parties.
On July 6, the seven-member court unanimously rejected India’s objections and declared that India’s non-participation in its proceedings did not deprive the court of competence to address all the questions raised by Pakistan. In a swift reaction, the Indian Ministry of External Affairs reiterated “India’s consistent and principled position that the so-called Court of Arbitration is in contravention of the Indus Waters Treaty”. The statement added that “as per the graded mechanism provided in the treaty, the neutral expert is the only valid proceeding at this juncture”.
On the other hand, Neutral Expert Michel Lino issued a 151-page decision on January 7, 2025 asserting his competence to settle all “points of difference” in the positions taken by India and Pakistan on the Kishenganga and Ratle hydropower projects. The decision summarised the points of view of the contending parties as conveyed through their respective “memorials” and presentations at the meetings convened by the NE in February and September 2023 as well as February and June 2024. It also refers to the site visit of KHEP and RHEP undertaken by Lino from June 20 to 28, 2024. Lino held a third meeting with the parties on September 10-11, 2024 during which oral presentations were made by the parties on the competence of the neutral expert.
A statement issued on January 21, 2025 by India’s Ministry of External Affairs (MEA) welcomed the decision of the neutral expert, confirming his competence to decide on the differences between India and Pakistan concerning the Kishanganga and Ratle hydroelectric projects. It pointed out that “the decision upholds and vindicates India’s stand that all seven questions that were referred to the neutral expert are …differences falling within his competence under the treaty”. The MEA noted that the neutral expert “will now proceed to the next (merits) phase of his proceeding” leading to “a final decision…”
The MEA statement declared that “being committed to preserving the sanctity and integrity of the treaty, India will continue to participate in the neutral expert’s process so that the differences are resolved in a manner consistent with the provisions of the treaty, which does not provide for parallel proceedings on the same set of issues”.
The statement mentioned that the governments of India and Pakistan “also remain in touch on the matter of modification and review of the Indus Waters Treaty under Article X11(3) of the treaty”.
The writer is a retired ambassador and former UN assistant secretary-general.
To be continued