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To modify IWT – A battle over water Sharing! By Kashif Mirza

Byadmin

Feb 18, 2023

The writer is an

economist, anchor,

analyst and the

President of All

 Pakistan Private

Schools’ Federation

president@Pakistan

privateschools.com

The Indus Water Treaty was signed on September 19, 1960, by Prime Minister Jawaharlal Nehru and Pakistan’s President Mohammed Ayub Khan in Karachi after nine years of World Bank-brokered negotiations between India and Pakistan.  Now, India has issued a notice to Pakistan seeking modification of the more than six-decade-old Indus Waters Treaty (IWT) that governs the sharing of waters of six rivers in the Indus system between the two countries, the 62-year-old treaty that governs the sharing waters of the Indus system — a bilateral agreement that was signed in September 1960 and survived three wars, the Kargil conflict, and the terror attacks in Mumbai and Kashmir. India objects to two simultaneous dispute resolution mechanisms that have been set in motion, by raising repeated objections to the construction of hydel projects on the Indian side. The notice sent on January 25 through the Commissioner for Indus Waters, gives Pakistan 90 days to consider entering into intergovernmental negotiations to rectify the treaty. This would mean that the treaty can be opened for re-negotiations for the first time in over six decades. This process would also update the IWT to incorporate the lessons learned over the last 62 years. The notice has invoked Article XII (3) of the treaty which says: The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments. The notice appears to be a fallout of a longstanding dispute over two hydroelectric power projects that India is constructing – one on the Kishanganga river, a tributary of Jhelum, and the other on the Chenab. Pakistan has raised objections to these projects, and dispute resolution mechanisms under the Treaty have been invoked multiple times. But a full resolution has not been reached. In 2015, Pakistan asked that a Neutral Expert should be appointed to examine its technical objections to the Kishanganga and Ratle HEPs. But the following year, Pakistan unilaterally retracted this request and proposed that a Court of Arbitration should adjudicate on its objections. In August 2016, Pakistan approached the World Bank, which had brokered the 1960 Treaty, seeking the constitution of a Court of Arbitration under the relevant dispute redressal provisions of the Treaty. Instead of responding to Pakistan’s request for a Court of Arbitration, India moved a separate application asking for the appointment of a Neutral Expert, which is a lower level of dispute resolution provided in the Treaty. India had argued that Pakistan’s request for a Court of Arbitration violated the graded mechanism of dispute resolution in the Treaty. In between, a significant event happened which had consequences for the Treaty. But after the attack on Uri in September 2016, the Indian Prime Minister had notoriously said that blood and water could not flow together, and India had malafide and suspended routine bi-annual talks between the Indus Commissioners of the two countries.

Changes to Indus Water Treaty (IWT) Could Raise Hostility Between India, and Pakistan. Pakistan needs to aggressively counter India’s attempts to amend the IWT and retaliate with a pragmatic response and a legal stance with a strong projection of its standpoint…

The dispute redressal mechanism provided under Article IX of the IWT is a graded mechanism. It’s a 3-level mechanism. So, whenever India plans to start a project, under the Indus Water Treaty, it has to inform Pakistan that it is planning to build a project. Pakistan might oppose it and ask for more details. That would mean there is a question — and in case there is a question, that question has to be clarified between the two sides at the level of the Indus Commissioners. The World Bank, the third party to the Treaty and the acknowledged arbiter of disputes were, meanwhile, faced with a unique situation of having received two separate requests for the same dispute. India claimed that the World Bank was just a facilitator and had a limited role. On December 12, 2016, the World Bank announced a pause in the separate processes initiated by India and Pakistan under the Indus Waters Treaty to allow the two countries to consider alternative ways to resolve their disagreements. The regular meetings of Indus Waters Commissioners resumed in 2017, and India tried to use these to find mutually agreeable solutions between 2017 and 2022. At Pakistan’s continued insistence, the World Bank, in March last year, initiated actions on the requests of both India and Pakistan. On March 31, 2022, the World Bank decided to resume the process of appointing a Neutral Expert and a Chairman for the Court of Arbitration. In October last year, the Bank named Michel Lino as the Neutral Expert and Prof. Sean Murphy as Chairman of the Court of Arbitration. But such parallel consideration of the same issues is not provided for in any provisions of the Treaty, and there is the possibility of the two processes delivering contradictory rulings, which could lead to an unprecedented and legally untenable situation, which is unforeseen in Treaty provisions. If that difference is not resolved by them, then the level is raised. The question then becomes a difference. That difference is to be resolved by another set mechanism, which is the Neutral Expert. It is at this stage that the World Bank comes into the picture. In case the Neutral Expert says that they are not able to resolve the difference, or that the issue needs an interpretation of the Treaty, then that difference becomes a dispute. It then goes to the third stage — the Court of Arbitration. To sum up, it’s a very graded and sequential mechanism — first Commissioner, then Neutral Expert, and only then the Court of Arbitration. While the immediate provocation for the modification is to address the issue of two parallel mechanisms, at this point, the implications of India’s notice for modifying the treaty are not very clear. Article XII (3) of the Treaty that India has invoked is not a dispute redressal mechanism. It is in effect, a provision to amend the Treaty. However, an amendment or modification can happen only through a duly ratified Treaty concluded for that purpose between the two governments. 

Pakistan is under no obligation to agree to India’s proposal. As of now, it is not clear what happens if Pakistan does not respond to India’s notice within the 90-day period. The next provision in the Treaty, Article XII (4), provides for the termination of the Treaty through a similar process — a duly ratified Treaty concluded for that purpose between the two governments. India has not spelled out exactly what it wants to be modified in the Treaty. But over the last few years, especially since the Uri attack, there has been a growing illegal demand in India to use the Indus Waters Treaty as a strategic tool, considering that India has an illegal advantage being the upper riparian state. Unfortunately, Pakistan has not fully utilized its rights and claim over the waters of the three east-flowing rivers — Ravi, Beas, and Sutlej — over which India has full control under the Treaty. It has also not adequately utilized the rights over the three west-flowing rivers — Indus, Chenab, and Jhelum — which are meant for Pakistan. India had established a high-level task force to Blac Pakistan and exploit the full potential of the Indus Waters Treaty. India has been working to start several big and small hydroelectric projects that had either been stalled or were in the planning stages. There is an urgent need to retaliate with a pragmatic response and strong projection of its legal stance in order to counter India’s attempt to modify the Indus Waters Treaty. India designed its water projects with storages of a higher level and obstructing river flows more than what was permitted under the Treaty. He said that India upheld the neutral expert’s decision on using silt clearance technology in Baglihar Dam and ignored the subsequent decision of the International Court of Arbitration in 2013 which refuted the use of silt technology for more water storage and overturned the neutral expert’s decision as far as live storage is concerned. A very calculated response and a comprehensive action plan on the part of the government is required, coupled with the capacity building of relevant institutions. According to Article XII (3) of the IWT, the Article states: The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments. A Court of Arbitration is holding its first hearing in The Hague on Pakistan’s objections to Kishanganga and Ratle Hydroelectric Projects. The Court of Arbitration has been set up under the relevant provisions of the Indus Waters Treaty. Despite efforts by Pakistan to find a mutually agreeable way forward, India always refused to discuss the issue during five meetings of the Permanent Indus Commission from 2017 to 2022. Pakistan needs to aggressively counter India’s attempts to amend the Indus Waters Treaty (IWT) and retaliate with a pragmatic response and a legal stance with a strong projection of its standpoint.

The latest Indian move asking Pakistan for renegotiation of the treaty is an indication that India appears to be willing to go as far as ending the role of the World Bank as an arbitrator and facilitator in the agreement. If India unilaterally terminates the agreement, perhaps because it no longer suits its interests, Pakistan will be forced into adopting a similar attitude and could raise the stakes across the Line of Control (LoC) and elsewhere, including Afghanistan. More than anything, the development may permanently close the door for negotiations between the two countries. Pakistan has no other option but to keep the Indus Water Treaty intact. India needs to understand that the water treaty is Pakistan’s lifeline and that ending the decades-long status quo in place due to the agreement could stem a new wave of instability in the region. Indeed, India’s threats are meant to strengthen Prime Minister Modi’s electoral prospects in the upcoming general elections. Changes to Indus Water Treaty (IWT) Could Raise Hostility Between India, and Pakistan. Pakistan needs to aggressively counter India’s attempts to amend the IWT and retaliate with a pragmatic response and a legal stance with a strong projection of its standpoint.

By admin

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