In January 2023, India sent a formal diplomatic communication to Pakistan, suggesting a bilateral review of the 1960 Indus Waters Treaty (IWT) as provided for under its Article 12 (3). Not satisfied with Islamabad’s response, New Delhi sent another communication (August 30, 2024), urging Pakistan again for the same. But this time, India also unilaterally suspended meetings of the Permanent Indus Commission in breach of the relevant IWT provisions. This was seen to build pressure on Pakistan to acquiesce. Pakistan is yet to respond.

Whereas India is entitled to propose a review of the IWT, the Treaty is a permanent arrangement. There is no unilateral termination or a withdrawal clause. Article 12 (4) of the treaty says, “The provisions of this Treaty, or the provisions of this Treaty under the provision of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments.” In short, the IWT can only be modified or terminated with mutual agreement.

Since the IWT was signed in 1960, it may be in need of some changes especially to address multiple environmental challenges.

Before I comment on the issues related to the Treaty, it may be worthwhile to point out that since the Uri attack of September 18, 2016, India’s position has been that “talks and terror cannot go together”. In fact, Prime Minister Modi, threatening Pakistan after the Uri attack, also stated that “blood and water cannot flow together”. This was his way of conveying to Pakistan that India being the upper riparian could stop the water of the three western rivers – Indus, Jhelum and Chenab – flowing into Pakistan should the latter continue with its alleged “cross-border terrorism” policy.

Intriguingly, India, on the one hand, is stridently opposing bilateral talks on substantive issues, and, on the other hand, it is proposing inter-governmental talks on the IWT. Pakistan, therefore, needs to be extra circumspect lest should it damage its interests vis-à-vis India. Islamabad needs to fully comprehend what is India up to and what is at stake. The fact that India, among other things, also mentioned terrorism as one of the reasons to propose a review speaks for itself. What does terrorism or for that matter India’s intransigence on Jammu and Kashmir has to do with the IWT which has by and large been working quite well despite the deep-rooted adversarial Pakistan-India relationship.

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It is correct that since 1960 the world has undergone incredible transformations. If the reason to reopen the Treaty is to fine-tune the dispute settlement mechanism as contained in Article IX, or accommodate environmental issues then Pakistan in all likelihood may concur with India. The problem arises when New Delhi uses the Treaty for political purposes and even challenges decisions by the World Bank which is also a party to the Treaty with an important role to play, especially in settling differences and disputes between the two countries as detailed in the Treaty.

One of India’s contentions is that Pakistan has made the habit of raising objections to any hydropower project New Delhi plans on the western rivers. Moreover, Pakistan rather than discussing and settling differences at the PIC level, is usually quick to refer differences to the World Bank, invoking Article IX of the Treaty. Incidentally, India also objects to Pakistan’s raising the Kashmir dispute at multilateral forums, arguing that it is a bilateral issue and thus must be settled bilaterally as per the 1972 Shimla Agreement. This is India’s way of avoiding result-oriented talks and biding time to give a fait accompli to Pakistan as it has done apropos projects like Baghlihar and Kishenganga, and now Ratle and many others in violation of Article VII (2) of the IWT.

The fact of the matter is that India is trying to politicize the IWT by linking it to other issues in our bilateral relations.

At the same time, India has been derelict in providing timely notification and data before initiating projects as stipulated in the abovementioned Article. Even in the PIC, India has largely been non-cooperative delaying visits to sites for inspection as stipulated in Article VIII (d) of the Treaty. Ominously, India has now suspended PIC meetings let alone inspection of the projects under construction.

India’s primary contention is that the two processes of Neutral Expert and Permanent Court of Arbitration (PCA) for settlement of differences and disputes as contained in Article IX cannot be constituted in parallel. According to its interpretation of the Treat, dispute settlement mechanism is a graded process starting with the PIC and ending with the PCA. Hence, the World Bank cannot appoint a Neutral Expert on any issue and also refer the same to the PCA at the same time as the two may reach opposite conclusions. Accordingly, India has recently refused to attend the PCA proceedings in The Hague on both Kishenganga and Ratle hydroelectric projects.

However, Pakistan is of the view that once bilateralism at the PIC is exhausted, either party can refer the differences and disputes to the World Bank. On technical issues, the World Bank is entitled to appoint a Neutral Expert and if there are also some legal issues involved, the matter can be referred to the PCA concomitantly. In any case it is not for either party to take a decision in this behalf. It is entirely the World Bank’s prerogative to decide how to go about an issue refer to it by either party. It is, therefore, unfair on the part of India to accuse Pakistan of alleged circumvention of the Treaty.

The fact of the matter is that India is trying to politicize the IWT by linking it to other issues in our bilateral relations. If at all India has any ideas to improve the Treaty without modulating the fundamentals, that is, the agreed division of the six rivers, Pakistan would likely have no qualms to consider India’s suggestions. To begin with and, as suggested by Pakistan, India should first put together specific draft proposals at the PIC. India’s contention that the latter is the implementation body, not mandated to negotiate amendments, does have some merit. However, these are procedural differences which must not be allowed to undermine the IWT itself.

In my view, Pakistan’s position is not etched in stone. Since the IWT was signed in 1960, it may be in need of some changes especially to address multiple environmental challenges. Rather than playing hard ball and resorting to threats like stopping the flow of water of Ravi River into Pakistan, which can wreak havoc to Lahore’s aquifers, India must demonstrate its good intentions with the view to assuaging Pakistan’s legitimate apprehensions.

Whereas India is entitled to propose a review of the IWT, the treaty is a permanent arrangement.

In order to set the ball rolling India must first agree to hold PIC meetings including inspection of sites as provided for in the IWT. Secondly, India must start sharing all necessary technical details with Pakistan of all the projects on the Western Rivers well in advance to avoid later complications. Thirdly, Pakistan may reconsider its stance accommodating India’s position to review the Treaty at the inter-governmental level provided India conveys specific proposals in advance rather than speaking in generalities. The nature of Indian proposals would determine whether or not reviewing the Treaty is warranted as suggested by India. Pakistan cannot and must not agree to review the Treaty without first being absolutely convinced of the merit of India’s specific proposals as and when these are formally communicated.

However, reviewing the IWT does not mean its implementation can be put on hold. The two countries may meet, review and agree. Or for that matter disagree. In the latter case, the existing IWT will remain valid as neither party can withdraw from the Treaty unilaterally.

The Treaty must not be used by either party for political purposes. Statements like “water and blood cannot flow together” by Prime Minister Modi in the wake of the Uri attack are least helpful. Being the lower riparian, Pakistan’s legitimate concerns cannot be wished away by India. Nor must India resort to coercive measures as that would further ratchet up tensions to the detriment of peace and stability in the region. As the upper riparian, the primary onus is on India to show its sincerity of purpose now and in future.