Future of the Indus Waters Treaty: Part-III

The Indian government’s call for a review and modification of the IWT has ostensibly been prompted by its annoyance with Pakistan’s objections to the designs of the Kishanganga and Ratle HEPs and insistence on a court of arbitration.

India has claimed that it “had offered on multiple occasions the possibility of discussing the issues (raised by Pakistan) bilaterally at the level of the Permanent Indus Commission” but Pakistan did not cooperate.

Since 2023, the Indian media has, as usual, overwhelmingly backed New Delhi’s point of view concerning the IWT. However, The Hindu newspaper has made a strong plea for moderation. In an editorial, ‘Stauch the Breach’ (September 21, 2024), The Hindu called on India and Pakistan “to drop their hard-line stances” on the treaty. It added: “It is no coincidence that the spiral mirrors the unravelling of the India-Pakistan bilateral relationship in the same period. There is no political engagement or trade and the 2021 Line of Control ceasefire agreement is in danger…”

During the past two years, a flurry of articles by Indian experts, including those who had previously held important official positions, have sought to make a robust case for its bid to amend Article 1X of the IWT, ‘Settlement of Differences and Disputes’ and Annexure D – Generation of Hydro- Electric Power by India on the Western Rivers. The recently established Centre for Research on Strategic and Security Issues, also known as NATSRAT, with unmistakable links to the Indian security apparatus, has published a number of articles to justify New Delhi’s attempt to amend some provisions of the IWT.

The authors of the articles include Pankaj Saran, a veteran diplomat and former deputy national security adviser for strategic affairs under Indian Prime Minister Narendra Modi and convener of NATSTRAT; and RK Saxena, ex-Indian Indus Commissioner, veteran water resources and energy expert, and senior fellow of the Manohar Panikar Institute for Defence Studies and Analysis, a think tank funded by the Indian Ministry of Defence. Five of the papers have been put together under the title ‘Revisiting the Indus Waters Treaty’, published in October 2023. The main arguments for justifying the renegotiation of the IWT are noted below.

One, alleged abuse of the IWT by Pakistan: Indian experts have accused Pakistan of abusing the IWT to “advance its agenda of hampering the development of Jammu and Kashmir” which has fostered the “growing feeling (in India) that the treaty is an impediment towards the development of J&K”.

The ex-Indus commissioner calls the IWT “a relic of the colonial era…” Earlier, they had charged Pakistan with attempts to obstruct Indian power generation plants on the western rivers by raising all kinds of objections. These accusations are belied by the fact that India has built as many as 36 hydropower plants with a total capacity of 3,478MW, most of them on the Chenab and Jhelum in Indian-administered Jammu and Kashmir. The charge of obstructing the development of J&K is absurd because Indian hydropower projects have thus far mainly benefited areas other than J&K.

Two, the need for accommodating technological advances in civil engineering: Indian experts have argued that technological progress has outpaced the original intent and spirit of the treaty, thus making it imperative for India and Pakistan to renegotiate its contents under Article X11(3). Specifically, they contend that technological advances warrant revisiting the provisions concerning spillways to prevent sedimentation as had occurred in the Salal and Baglihar dams. In this regard, they claim that Pakistan’s hydropower plants have low-level sluice spillways – not 1960 technology. They insist that “India must have the freedom to construct HEPs with low-level sluice spillways”, adding that “this requires a new framework to be established”.

Pakistani legal experts oppose tampering with the painstakingly negotiated texts of all the provisions of the IWT in order not to set a precedent for changes which would adversely affect the integrity of the IWT. But the possibility of finding a solution in exceptional cases short of textual amendment should be explored.

Three, the “need to re-examine the pact in the light of climate change”: Indian experts contend that the IWT should address the impacts of climate change. But their suggestions are selective, self-serving, and outrageous. They claim that the IWT had created “imbalances in water distribution” by allowing India only 19.6 per cent of the waters of the Indus River Basin through the eastern rivers though it has almost double the catchment area of this percentage. They advance the specious claim that “Pakistan was given a disproportionate and excessive share of water despite having a lesser catchment area”.

They also mention the acute shortage of water in the Indian states of Punjab, Rajasthan and Haryana. Indian experts ignore the acute scarcity of water in Pakistan which has been exacerbated by the impacts of climate change. They do not mention the need for cooperation between India and Pakistan on climate adaptation and mitigation, in particular addressing the risks posed by climate change to the supply and quality of fresh water.

Four, “India had given too much to Pakistan in 1960 through the IWT”: Indian experts claim that driven by the “initial euphoria of trying to build good relations with a new-born state and belief in the principle of fairness”, India had given too much to Pakistan in 1960 through the IWT. This is factually incorrect. Niranjan D Gulhati, the Indian civil engineer who had participated in the IWT negotiations from the first to the last day, writes in his book ‘Indus Waters Treaty: An Exercise in International Mediation’ ( 1973) that “The truth of the matter has been set out in the preceding pages. Neither Pakistan nor India made any permanent concessions to the other side…..Both countries have gained enormously in material benefits”.

Five, criticism of the ‘central position’ given by the treaty to the World Bank: Indian experts’ criticism against the role assigned to the WB is blatantly inaccurate and uncalled for. The World Bank had indeed made an indispensable contribution to the success of the IWT negotiations for which it was lavishly praised by Indian PM Nehru. The roles assigned to the Bank in the IWT were to negotiate arrangements for continued supply of canal water to Pakistan by India in case Pakistan was unable to build, by the end of the 10-year transitional period (1960-1970), irrigation infrastructure to carry flows from the western rivers to areas previously dependent on the eastern rivers. Due to the timely completion of the infrastructure by Pakistan, there was no need for the Bank to intervene.

The second obligation of the Bank relates to the dispute settlement mechanism which is widely acclaimed for fairness. India has also planned to build as many as 65 additional power plants in the future, taking advantage of the lack of any limitation on the number of projects that could be built by India on the western rivers.

Six, imperfections and ambiguities in the IWT: Indian experts refer to the imperfections and ambiguities in the IWT but do not substantiate the claims. They have criticised the World Bank’s “lack of competence to handle such disputes”, ignoring the fact that under the IWT, disputes are either handled bilaterally by the Indus commissioners who, according to the treaty, “should ordinarily be a high-ranking engineer competent in the field of hydrology and water-use”, or by a ‘neutral expert’ or a Court of Arbitration.

Seven, Pakistan’s use of the IWT “to advance its agenda of hampering the development of Kashmir”: Indian experts allege that Pakistan objects to “every development project, irrespective of its size, which fosters the growing feeling that the Treaty is a major impediment to the development of the water resources of Jammu and Kashmir.” How much India cares for the wellbeing of the people of Indian-administered J&K was highlighted in a report in the daily Kashmir Times’s issue of November 25, 2023. The report states: “A resource-rich region, Jammu and Kashmir, which produces surplus electricity from the hydroelectric projects is facing the worst power crisis in many decades during harsh winters”. It adds: “Jammu and Kashmir which produces 203188 MW of energy gets an overall share (from power harnessed by state-run, NHPC-run and private projects) of 1441.35 MW. To meet its requirements, J&K has to purchase power back from the Northern Power Grid Corporation”.

Eight, an Indian water resource expert has also called for revising ‘Annexure E-Storage of Waters by India on the Western Rivers’ to allow India to store water in reservoirs on the western rivers in India “so that it is utilised for the benefit of humanity”. Clearly, his ‘humanity’ excludes the 250 million Pakistanis for whom the Indus Basin, especially the western rivers, are the main sources of freshwater and, therefore, a paramount existential imperative.

To be continued...

The writer is a retired ambassador and former UN assistant secretary-general.