Pakistan forced India’s Indus Waters Treaty modification bid; breached pact several times

Pakistan’s “Intransigence” in the correct implementation of the 1960 Indus Water Treaty (IWT) forced India’s decision to serve Islamabad with a modification notice. Pakistan has had a history of raising objections every time India undertakes a dam-building project or utilises its quota of water as allowed under the treaty.  

Notably, Pakistan raised an objection in 2015 over India’s construction of the Kishenganga Hydro Electric Project (HEP) over a tributary of Jhelum. Meanwhile, the Ratle HEP on Chenab was also objected to by Pakistan. Islamabad requested the appointment of a neutral expert to resolve the issue pertaining to both HEPs. However, in 2016, Pakistan unilaterally withdrew the request and proposed that a Court of Arbitration adjudicate its objections despite numerous requests by India to resolve the issue via a neutral expert first. This unilateral action by Pakistan was in contravention of the graded three-stage mechanism of dispute settlement envisaged by Article IX of IWT.  

What is the three-stage procedure?

Under the Indus Waters Treaty, a Permanent Indus Commission was set up to ensure a workable mechanism for cooperation and information exchange regarding the use of the rivers between India and Pakistan and included a commissioner from both nations. Furthermore, distinct procedures to handle issues pertaining to sharing of water were also set forth under the IWT.  

The three-stage procedure stated that any “questions” regarding the IWT would be the responsibility of the Permanent Indus Commission. Meanwhile, “differences” pertaining to the treaty were to be resolved under a Neutral Expert. Lastly, any “disputes” regarding the implementation of the IWT were to be referred to the “Court of Arbitration”, a seven-member arbitral tribunal.  

Pakistan forced India’s hand

On Pakistan’s insistence, the World Bank set up both a court of arbitration and appointed a neutral expert as well. The parallel consideration toward the same objection was not covered under any provision of the IWT. Accordingly, India made a separate request for the matter to be referred to a Neutral Expert.  

Furthermore, the World Bank’s action of setting up both- a court of arbitration and the appointment of a neutral expert- created a scope for the conclusive orders to be contradictory in nature. This was acknowledged by the World Bank in 2016 and the decision was taken to “pause” the initiation of two parallel processes. Following this, the World Bank requested India and Pakistan to seek an amicable way out.   

However, despite repeated efforts by India to find a mutually agreeable way forward, Pakistan refused to discuss the issue during the duration of the five meetings of the Permanent Indus Commission from 2017 to 2022. This ultimately forced India to seek review to make the treaty reflect changed times.  

"Faced with such violation of IWT provisions, India has been compelled to issue notice of modification," a source said while adding that the objective of the notice is to provide Pakistan with an opportunity to enter intergovernmental negotiations within 90 days and rectify the material breach of IWT.   

Background of the water contention

Signed by the then-Prime Minister Jawaharlal Nehru and Pakistan’s President Ayub Khan on 19 September 1960 in Karachi, the Indus Water Treaty grants control of three “eastern rivers”, namely Sutlej, Ravi and Beas to India while the control of “western rivers”, which include Jhelum, Chenab and Indus was granted to Pakistan.  

Notably, following India’s independence and subsequent partition leading to the formation of Pakistan in 1947, the line of control (LOC) between the two nations was drawn across the Indus Basin. However, a water dispute soon arose between the two nations following partition mainly because the irrigational supply to Pakistan’s Punjab, which originated via a canal system from Madhopur on Ravi and another from Ferozepur on Sutlej, came under Indian territory.   

Pakistan’s dependence on the key canal systems for irrigation left it as a lower riparian state. In 1954, the World Bank came up with a proposal in form of the Indus Water Treaty (IWT) to resolve the contention between India and Pakistan. However, the World Bank’s proposal as a basis for the settlement of the water dispute was turned into a basis of negotiation due to Pakistan’s stubbornness in coming to terms with the proposal. Pakistan stalled the negotiations for the next six years until the treaty was finally signed in 1960. Meanwhile, the World Bank also laid a three-stage approach for the two nations to resolve any future issues regarding the sharing of water in rivers concerned.