Author : Sushant Sareen

Expert Speak Raisina Debates
Published on Jan 28, 2023
Examining the grounds for modification of the Treaty and its practical implications for both India and Pakistan
Indus Waters Treaty: Opening the water front The decision of the Government of India to issue a notice to Pakistan on 25 January 2023 seeking a modification in the Indus Waters Treaty (IWT) of 1960 comes just two days before the sitting of a court of arbitration set up on the dispute over the Kishenganga and Rattle hydroelectric power projects being constructed by India. While the initial reaction from Pakistan is dismissive of the step taken by India, alarms bells would certainly be going off in Islamabad. That India is upping the ante and sending a clear signal to Pakistan that the IWT is no longer inviolable is not something that will be lost on the Pakistanis. The message is simple: If Pakistan does not want to jeopardise the treaty, it has to stop putting obstacles in the path of Indian projects on the Indus rivers; otherwise all bets are off.

Technical and legal grounds for IWT modifications

Although many analysts will see the Indian move from a political and strategic prism—and they wouldn’t entirely be wrong—the fact is that there are very good technical and legal grounds for India to seek modifications in the treaty. Despite being a comprehensive document that covered virtually every aspect of dam construction and water usages, the letter of the IWT has become somewhat incongruous to the spirit of the treaty. Many of the technical criterion laid out in the treaty no longer conform to the spirit of the treaty, which was to foster cooperation between India and Pakistan, and ensure optimum utilisation of water resources in the Indus rivers basin. The treaty is not equipped to cater for new techniques, technologies and studies in the building of hydropower projects, which increase their life and efficiency but were not available at the time the treaty was negotiated. More importantly, Pakistan has used the treaty not to resolve differences, if any, over designs—which according to India follow the provisions of the treaty—but to escalate them to the level of disputes, which are then to be solved either by a neutral expert or by a court of arbitration. This delays the Indian projects, adding to their cost and affecting their techno-economic viability.

Many of the technical criterion laid out in the treaty no longer conform to the spirit of the treaty, which was to foster cooperation between India and Pakistan, and ensure optimum utilisation of water resources in the Indus rivers basin.

Starting from the Salal hydropower project in the 1970s to the latest projects being constructed on the Western rivers (Indus, Chenab and Jhelum and their tributaries), Pakistan has objected to every single project. In a spirit of accommodation, India agreed to design changes in the Salal project but in the process. After Salal, Pakistanis objected to the Tulbul Navigation project, the Baglihar dam, Kishenganga, Rattle, Nimmo Bazgo and other projects. Instead of solving the issues around these projects in a constructive and cooperative manner, Pakistan's objective was to kill the projects by rendering them unworkable. For the longest time, India played along and legally contested the Pakistani challenge to the various projects. In the case of Baglihar and even Kishenganga, for instance, India was vindicated. But in the latest legal challenge, India’s patience with Pakistani shenanigans has started to run out. The World Bank is equally responsible for this. Rather than act as a facilitator, it has indulged Pakistan’s rank bad behaviour and allowed it to run riot even with the dispute resolution mechanism. As the Indian government has stated, Pakistan first asked for a neutral expert, then asked for a court of arbitration.  After a certain ‘pause’, the World Bank has allowed both processes to run concurrently even while accepting that this will “pose practical and legal risks”. While the World Bank claims it is acting in “good faith”, it is quite clear that its action in the latest dispute created by Pakistan is anything but in good faith.

Political and strategic dimensions to IWT modifications

Despite the techno-legal arguments that justify seeking modifications in the IWT, there is no denying the political and strategic dimensions to India starting to bare her fangs on the Treaty. For decades, officials and members of the strategic community have advised the government to use the IWT as a strategic weapon against Pakistan’s unrelenting export of terrorism into India. But the government consciously and scrupulously continued to adhere to the provisions of the Treaty. It was seen—perhaps naively, considering that Pakistan always used the treaty to stymie India—as an example of an understanding that had stood the vicissitudes and even viciousness in the bilateral relationship. It was touted as a template for building a cooperative mechanism and an example of how both countries could work together when they came down to it. India’s position, however, started to harden from around 2016 after the Uri terrorist attack. Suddenly, the focus turned to the IWT and the government started exploring its options. Old papers written on the issue were dug out and a lot of thought went into how India could get a leverage over Pakistan. Even so, instead of going for the nuclear option of walking out of the treaty, the focus was on exploiting the waters allotted to India under the treaty  to the maximum extent possible. In other words, building structures and projects on the Indus rivers (both eastern and western) that were allowed under the treaty to prevent any waters allotted to India from flowing into Pakistan.

Old papers written on the issue were dug out and a lot of thought went into how India could get a leverage over Pakistan.

In November 2016, Prime Minister Narendra Modi spoke about not allowing even a drop of water from the Eastern Rivers, which had been allotted to India, from flowing into Pakistan. In 2019, after the Pulwama attack by Pakistani terrorist group Jaish-e-Mohammed, the government decided to fast track its water projects to not allow any spill over of water into Pakistan. But even after the grave provocation of Pulwama, the government had no intention of walking out on the treaty, until now, when it has put Pakistan on notice that it wants to modify the IWT. As an idea, this is not new. It had been proposed earlier by top experts on the IWT. Former Secretary to the Government of India, Ramaswami Iyer, had written a paper in 2005 proposing that the treaty be relooked and renegotiated. There was, however, no way that Pakistan would agree to it then and it is highly unlikely that Pakistan will agree to it now. The only difference is that, now, India is all set to push the envelope on the IWT, something the country wasn’t ready to do earlier.

Implications of the Indian move on the IWT

For now, Pakistan is, perhaps, too preoccupied in the existential crises it is confronting, and the Indian move on the IWT hasn’t received the attention it would have gotten in more normal times. There is also an element of denial or, if you will, belief, that India cannot unilaterally alter the treaty, much less abrogate it. That there is no exit clause in the treaty is an undeniable fact. But then no treaty lasts in perpetuity. Treaties last as long as they serve the purpose for which they were negotiated, or if neither party to a treaty has any incentive to junk it, or even if the two parties are so evenly matched that they do not enjoy the superiority to unilaterally walk out of it or force amendments in it. If any of these conditions don’t hold, then neither does the treaty. This isn’t so much a question of international law as it is about the dynamics of power. India has probably come to the conclusion that given the enormity of the crises that confront Pakistan, and which are likely to last in the medium term, this is an opportune time to reopen the IWT. The notice given to Pakistan is not just India rattling the cage but also making a statement of intention should Pakistan not stop its prejudicial and pernicious opposition to Indian projects. But the treaty is going to be there in the current form for the foreseeable future – at least a couple of years unless something drastic happens in this period that renders the treaty redundant. Even if the treaty was to be scrapped tomorrow, it wouldn’t really have any impact on Pakistan for a few years because India simply doesn’t have the structures to either stop the flow of water into Pakistan or divert the waters for use in India.

The political, economic and diplomatic impact of souring relations with these organisations will need to be gamed before India takes the plunge.

Of course, when the time comes for the axe to fall on the treaty, India will have to carefully consider the fallout of such a move. From Pakistan's point of view, it will be almost a declaration of war. The river waters are critical for Pakistan's survival. This factor cannot be ignored by India, especially if Pakistan has not been weakened or de-fanged to a point that there is nothing it can do about India altering the treaty or abrogating it. There is also the World Bank factor that has to be taken into account. Any unilateral action by India will not go down well with the World Bank or its affiliated organisations. The political, economic and diplomatic impact of souring relations with these organisations will need to be gamed before India takes the plunge. Of course, if India is a US $5 trillion economy by then, the reaction might be more muted than otherwise. The third factor India needs to take into account is the precedent it will set. China is already indulging in water aggression on two Indus rivers (Sutlej and Indus), the Brahmaputra, and Mekong. While China doesn’t really bother about the lower riparian states even now, could India’s action on the IWT become a license for it to build more structures on these rivers? A lot will depend on the relative power between India and China at that time. Finally, there are the Western powers, who will also try and intervene in this matter, especially if they think it could lead to a Water War or worse between India and Pakistan. For now, India has fired the first shot on the IWT. It remains to be seen if Pakistan is ready to negotiate on modifying the treaty or if it will fall back on its old, time-tested but increasingly rusting tactic of blocking any move by India. Pakistan's past track record is one of never missing an opportunity to miss an opportunity, only to realise later that the terms being offered earlier are no longer on the table. The ball is now in Pakistan's court.
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Sushant Sareen

Sushant Sareen

Sushant Sareen is Senior Fellow at Observer Research Foundation. His published works include: Balochistan: Forgotten War, Forsaken People (Monograph, 2017) Corridor Calculus: China-Pakistan Economic Corridor & China’s comprador   ...

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