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Turbulent Waters; By Subramanyam Sridharan

Article 004/2023

Article Courtesy: India Legal

On January 25, 2023, India sent a notice through the Permanent Indus Commission to Pakistan, returnable in 90 days, seeking “modification” of the Indus Water Treaty (IWT) that has been in existence since 1960. Though Pakistan seemed unperturbed, it must be scrambling its narrative to counter this bombshell. That India has been thinking along these lines has been evident at least for six years now. After the Uri terror attack of September 2016, Prime Minister Narendra Modi is learnt to have famously told officials dealing with IWT: “Blood and water can’t flow together at the same time.” The government of India soon set up an inter-ministerial task force to go into the finer details of IWT. India suspended the regular PIC meetings until an “atmosphere free of terror” prevailed. After the Pulwama terror strike in February 2019, apart from withdrawing the MFN status from Pakistan, India also said that it would divert whatever remaining vestigial water flow in its eastern rivers to areas within India. Simultaneously, it has taken measures to fully exploit the western rivers under IWT’s provisions through a slew of hydroelectric projects to meet its energy and water requirements. Article XII of the IWT does not provide for unilateral withdrawal by either State party from the agreement. However, it allows for modification or termination of the Treaty jointly by both parties. It is under such provisions that India seeks modifications now even as IWT’s dispute resolution mechanism strains, and newer technologies and climate change dictate a fresh outlook in the light of six decades of IWT’s operation. Through Article VII of IWT on “Future Cooperation”, the two sides have already agreed “to cooperate…to the fullest possible extent” “in the optimum development of the rivers”. Except for initiating any dispute resolution process as outlined in IWT, the World Bank has no role otherwise to play in fulfilment of the IWT. The future of IWT, therefore, lies only in the hands of the two countries. A Dharmic country like India which is a stickler for international treaties and conventions, and which believes in “Vasudhaiva Khutumbakam” (The World is a Family), would be patient and not be easily hustled into taking unilateral decisions. However, persistent obstinacy by Pakistan against legitimate Indian interests, underlined by its “enduring hostility”, may leave India with few options if the former is unwilling to see reason. The Vienna Convention on Treaties does allow the contracting States to even withdraw without being in violation of any international law. So, why has India decided to seek a change in the IWT? The answer lies in the genesis of the dispute, the provisions of the Treaty itself and recent developments. The Indus System & Partition The Indian subcontinent has not only a quarter of the world’s population, but has three mighty river systems—the Ganges, the Brahmaputra and the Indus. However, two events of the last century, the Partition of India and the occupation of Tibet by China, spawned trans-boundary water disputes. Pakistan developed false narratives of Kashmir being its “jugular vein” and an “unfinished agenda of Partition” in order to portray fearful scenarios of India strangulating it by controlling the waters and causing widespread famines there. Today, Pakistan is one of the severest water-stressed nations in spite of a very generous IWT which allocated to it 80% of the entire waters of the Indus system of rivers. The issues with water sharing immediately after Partition were: the canals that crisscrossed the new boundary; the location of their head works in the upper riparian India and the demand for water in the less-developed East Punjab, classified as “crown wasteland” by the British, where those displaced from Pakistan were settled. The Indus Water Treaty A series of events such as Pakistan’s reluctance to engage India in water talks, then India’s decision to stop the water flow, Pakistan’s perfidy in signing the Delhi Agreement (May, 1948) but later retracting from it, its wars over Kashmir, etc., led to an environment of distrust and animosity even though India continued to oblige by releasing waters. It was in this milieu that in 1952 the International Bank for Reconstruction and Development (IBRD), also known as World Bank (WB), proposed to tackle the “functional”, not the “political”, aspects of water sharing. Upon WB’s suggestion, each country submitted its own plans, as per which even while concurring on the total available quantum of water, they differed widely on claims. While India wanted to claim only 29 MAF (million acre feet) of water for itself, giving away the rest to Pakistan, the latter was willing to give India only 15.5 MAF. The final settlement allotted all waters of the three eastern rivers (Beas, Ravi and Sutlej) amounting to 33 MAF to India and the three western rivers (Indus, Jhelum and Chenab) amounting to 135 MAF to Pakistan which closely tallied with the initial Indian suggestions. India also paid Pakistan GBP 62 Million as “replacement costs for the loss of the three Eastern rivers” to fund construction of dams and other works. IWT permits certain concessions to India on the western rivers such as drawing water for domestic use and for irrigation of approximately a million acres. It also allows India to build structures for general storage, flood management and power storage totalling 3.6 MAF. However, such hydroelectric power generation facilities can only be “run-of-the-river” systems where water cannot be impounded for more than seven days. The crux of the problem in the last 50 years is that Pakistan does not want India to exercise its lawful treaty options on the Western rivers. It does so by stalling projects through the “dispute” provisions of the IWT. As alluded to above, the IWT also includes mechanisms to deal with disputes and differences. Apart from the Permanent Indus Commission (PIC), which is IWT’s first line of bilateral dispute resolution mechanism, it also sets out procedures for international arbitration. Given below is the dispute settlement process that is of interest in the present context: A. A difference is deemed to have arisen if the PICs could not reach an agreement. B.The difference shall be dealt with by a neutral expert (NE) if it falls within issues mentioned in Annexure-F. C. In case of a dispute, the respective governments shall try directly to resolve it. D. A court of arbitration (CoA) shall be set up to resolve the dispute if the two governments cannot reach a decision. The IWT prescribes the procedure to choose the seven members of the CoA. Water Disputes Pakistan has made it a habit to raise objections and stall Indian projects across the western rivers. The first successful resolution of the dispute under IWT was over the Salal project (Chenab R.) in 1978 when Pakistan objected to the six low-level sluice gates to control sedimentation through a process known as drawdown flushing. As Pakistan thrives on imaginary Indian fears, drawdown flushing was portrayed by it as a security threat. The issue was resolved bilaterally when India conceded to Pakistan’s demands to allay its fears. As the Himalayan rivers carry a heavy load of sedimentation, the Salal Project quickly lost considerable power generation capacity as a result. When India started the Baglihar project (Chenab R.), Pakistan predictably objected as India was unwilling to oblige on the issue of drawdown flushing. The resulting difference was resolved by the WB-appointed NE who strongly supported the Indian design. Leaving aside other things (such as “pondage” and “freeboard”), it was the resounding support of the NE for drawdown flushing that Pakistan found unacceptable. Draw­down flushing has been determined to be most ideal in such geographies as these projects. The next major and on-going dispute is the Kishenganga (a tributary of Jhelum R.) project, which Pakistan stalled for seven years. Though all the disputed points raised by Pakistan fell under the purview of an NE, it insisted on a CoA where it fancied better chances instead of going to an NE who, being an engineer, would likely favour India’s scrupulous engineering designs. Expectedly, the CoA gave partial relief to Pakistan in 2013 even while rejecting its three fundamental demands. It asked India to avoid the drawdown flushing mechanism, thereby taking a stand contrary to the NE earlier. In 2016, Pakistan once again raised the issue with the WB. It’s new set of objections for both Kishenganga and the new Ratle (Chenab R.) projects was to force India to reduce power generation capacity (intake height), reduce ability to handle floods (spillway position), compromise on safety and performance (freeboard height) and reduce storage capacity (pondage). India determined that these were not reasons enough for a CoA and demanded that WB set up only an NE. Unable to reconcile the differences, the WB paused the arbitration process, but resumed it six years later in April 2022 appointing, strangely, both a CoA and an NE, for the same set of issues, contravening IWT provisions. In the meanwhile, India went ahead with the stalled Kishenganga project and completed it in 2018 in its original design. It is these cumulative issues and the “intransigence” of Pakistan that have hardened India’s position, leading to the current thinking of revising the IWT. (Subramanyam Sridharan is a distinguished member, C3S. The views expressed are those of the author and does not reflect the views of CAS.)

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