BSF personnel on a patrol at Out Post Chenab in the
Pargwal area along
International Border (IB)
India recently issued notice to Pakistan for its continued “intransigence” on implementing the Indus Waters Treaty (IWT), signed in 1960. India’s argument is that there cannot be “two separate processes” to resolve differences over the Kashmir-based Kishanganga and Ratle hydroelectric projects on the Jhelum and the Chenab, and considers such actions as a ‘material breach’ of the Treaty.
For India, the ‘difference’ is a technical and engineering one, to be resolved by a ‘neutral expert’ (NE) which is project-specific and has no precedential value. For Pakistan, because of the precedential nature of a court ruling, the International Court of Arbitration (ICA) is the preferred route.
India’s notice to Pakistan has, interestingly, and probably for the first time, called for negotiations on modification of IWT. India would like to relook certain annexures relating to dam designs as well as the dispute resolution mechanism, given its legitimate water development projects on the western rivers (Indus, Jhelum and Chenab). Article X of IWT mentions “modification of the provisions”.
Pakistan would not like to enter any renegotiations given that it extracted a more than favourable treaty. Any mutually acceptable modifications would require both to abide by the letter and the spirit of IWT. But the fact is that the treaty has functioned for over six decades because of India’s discharge of its responsibility as an upper riparian state, which very few countries have demonstrated.
One principal reason why IWT has been robust is the in-built “difference and dispute resolution”. Article IX has a three-step graded mechanism. If the two sides cannot resolve a ‘question’ or ‘difference’ bilaterally, then it becomes a ‘dispute’ and is referred to either an NE or ICA. Technical differences are referred to an NE with a provision of court of arbitration. Clearly, Pakistan’s rather well-styled infringement is political and not technical and solely intended to stymie much-needed hydroelectric projects in Kashmir by taking the matter from the bilateral and technical ambit to ICA. Such positioning might seem foolhardy, but rationality does not come easy to the Pakistani establishment with issues concerning India being deeply politicised and securitised.
When Pakistan took recourse, for the first time, to the NE on the Baglihar hydroelectric project in Kashmir in 2005, it failed to get a favourable decision. But the more disappointing outcome was that the NE ruled in favour of not suspending work on the project. The overconfident Pakistani security <wallahs> were shaken, and have since used the ICA route to stall all future Indian projects. And so in 2010, it took the Kishanganga to court, which stayed the construction for three years.
In 2013, the court ruled with certain design obligations for India that Kishanganga was “a run-of-the-river” plant and water could be diverted for power generation. This was again a big blow to Pakistan although the second verdict on low-level outlets and draw-down flushing went in its favour. Instead of working on these technical and engineering issues vital in the midst of climate change and glacier melt, Pakistan gloated for having scored a tactical victory by first stalling and then raising the cost of the project. The Kishanganga was eventually inaugurated in 2018 and like all other water development projects is crucial to Jammu and Kashmir.
The World Bank also needs to ponder its role. A much valued ‘third-party’ in the treaty negotiations and functioning, it tends to lend itself to larger geopolitical dynamics. By simultaneously appointing an NE on India’s request and setting up the court of arbitration, goaded by Pakistan, is has committed a gross procedural violation. The World Bank needs reminding that it is a facilitator and not an arbitrator on differences and disputes between India and Pakistan.
Finally, modification may or may not happen depending on Pakistan’s willingness. Will India then suspend the treaty? The best option for India is to fulfil IWT provisions, particularly on the western rivers. The treaty allows storage up to 3.6 MAF (million acre feet) and 13.4 lakh acres of irrigation. Many projects now underway will achieve the “permissible capacity”. For Pakistan, playing to the gallery will no longer be tenable. The outstanding problems are engineering in nature, requiring matching solutions. If Pakistan wants the treaty to continue, it needs to do a course correction.