In a recent notice to Pakistan, India sought modification of the Indus Waters Treaty — an instrument guiding the sharing of this riparian system between the two nations — following Pakistan’s repeated objections to India’s hydel projects in Kashmir. Sarthak Ray takes a look at the treaty and its role in the present dispute
Genesis of the treaty
During the British era, modern irrigation in the northern reaches of the subcontinent, fed by the Indus, had been considerably expanded even as older canals had been revived. After Partition, the headworks of the projects remained in India while the canals lay in Pakistan. The Inter Dominion Accord that kicked in from May 1948 called for India to supply Indus waters to Pakistan in lieu of annual payment, but it didn’t take off.
In 1951, both countries sought World Bank funding for irrigation projects on the riparian system. The Bank mediated an accord that took nine years to finalise, with numerous proposals made and subsequent amendments incorporated. On September 19, 1960, India and Pakistan signed the Indus Waters Treaty on sharing of the waters.
The sharing agreement
Under the treaty, the three Western rivers of the Indus basin — Indus, Chenab, and Jhelum — have been allocated to Pakistan for unrestricted use, except for certain categories of use by India. Per Annexure C of the treaty, India can use the water of these rivers for specific agri-uses, and per Annexure D, for ‘run of the river’ hydropower projects. ‘Run of the river’ projects don’t need live storage of water. Pakistan is accorded the right to object if projects don’t meet treaty specifications, and India must share information on projects, including changes from the original design, based on which Pakistan can flag issues within three months.
The three eastern rivers, Beas, Ravi and Sutlej, have been allocated to India for unrestricted use. Per the treaty, an 80% share of Indus basin waters (about 135 million acre feet, or maf) is with Pakistan and 33 maf is with India.
Permanent Indus Commission
IWT required India and Pakistan to set up a Permanent Indus Commission to serve as the first window of dispute resolution and information exchange. The Commission is constituted by the permanent commissioners appointed by the two countries. It must meet annually (the last meeting was in May 2022).
Three levels of dispute resolution
The first is the permanent commission. The dispute can be taken up parallelly at the government level. If no solution emerges, the matter can be escalated to the World Bank for the appointment of a ‘Neutral Expert’ (NE). If the NE’s decision is not to the satisfaction of either party, or there are interpretational issues, the countries can take the arbitration route. The growing need for water, the conflict over J&K, where the western rivers flow, are factors stoking disputes.
The present dispute and why India has issued a notice seeking modification of the treaty
The present dispute is centred on two hydel projects by India, on Kishenganga, a tributary of the Jhelum, and Ratle, on the Chenab. The Kishenganga Hydro Electricity Project (KHEP) features a dam for diversification of Kishenganga water to a hydel plant, after which the water is sent back. Pakistan opposed the project even before construction could begin in 2007, raising questions about the height of the dam. After talks, the height was brought down to around a third of what was originally planned. But, in 2010, Pakistan approached the International Court of Arbitration, the Hague, which allowed India to continue with the project. With regards to the Ratle project, it has raised fears of deliberate flooding/water shortage by India.
With persistent opposition from Pakistan over India’s projects, India has said Pakistan’s “intransigence” calls for the treaty’s modification. It says Pakistan’s unilateral decision to switch from one dispute resolution mechanism to another— it had asked for NE resolution in 2015 before changing its request to arbitration in 2016—is a material breach of the treaty, more so with the World Bank moving on both Pakistan’s arbitration request and India’s 2016 NE request.