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India Rejects Hague Court Order on Indus Water Treaty

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India Rejects Hague Court Order on Indus Water Treaty

New Delhi believes the 63-year-old Treaty needs updating due to technological advances and climate change.

India Rejects Hague Court Order on Indus Water Treaty

The Ravi, a tributary of the River Indus, flows past Lahore in Pakistan, October 31, 2015.

Credit: Wikimedia/Hafiz Mujahid Raza.

India’s rejection of The Hague-based Permanent Court of Arbitration (PCA)’s July 6 ruling declaring itself “competent” to consider and determine disputes raised by Pakistan against two hydroelectric projects in India’s Jammu and Kashmir did not come as a surprise to those following the case closely.

India had already decided to boycott proceedings at the PCA and gave enough indications in January that it wanted to escalate the water conflict with Pakistan over sharing of Indus Basin water resources, which is governed by the 63-year-old Indus Water Treaty (IWT).

India’s reiteration of its demand for modifying the treaty bilaterally, without involving any third party has at the same time also created a deadlock. Pakistan looks unlikely to accept India’s demand at this point.

The World Bank, which negotiated the shaping and signing of the IWT of 1960, has initiated two separate processes – a court of arbitration at Pakistan’s request and appointing a neutral expert at India’s request – as the two countries did not agree on the mode of negotiations. India said two simultaneous processes are not permissible. Pakistan, however, is participating in both proceedings.

The PCA’s “unanimous decision” rejecting “each of the objections raised by India” also initiated the next phase of the proceedings, which will include addressing questions concerning the overall interpretation and application of the Treaty’s provisions on hydroelectric project design and operation. It will also consider the legal effect of past decisions taken by dispute resolution bodies.

India promptly responded by saying that it “cannot be compelled to recognize or participate in illegal and parallel proceedings not envisaged by the Treaty.”

The IWT allows India unrestricted use of the waters in the “eastern rivers” — Sutlej, Beas, Ravi, and their tributaries. The “western rivers” — the Indus, Jhelum, Chenab, and their tributaries — are allocated to Pakistan, can be used by India with certain restrictions.

At the core of the conflict is the design of India’s hydroelectric projects on the western rivers. Pakistan feels the designs allow India greater control over these water resources and can deprive Pakistan of its legitimate share. On the other hand, India thinks they should be allowed to build projects as per present scientific expertise and should not be restricted by six-decades-old technologies.

Speaking on condition of anonymity, an official at India’s Ministry of Jal Shakti (or water resources) (MoJS) said the government not only believes the 1960 Treaty gave “unnecessary concessions to Pakistan” but also thinks that climatic changes made the construction of hydel projects more complex, which is why the provisions of the IWT needs revisions “out of sheer practicality.”

According to Srinivas Chokkakula, MoJS research chair and lead, TREADS (Transboundary Rivers, Ecologies and Development Studies) at the New Delhi-based independent think-tank Centre for Policy Research, the kind of issues Pakistan has projected around Kishenganga are similar to the Baglihar dispute, in which the World Bank-appointed neutral expert’s 2007 decision was “reasonably well-argued” and favored India’s proceedings with the project.

“The neutral expert in the Baglihar case had rightly taken into account the technological advances, which were absent at the time of drafting the IWT. He went by the spirit of the Treaty. In my reading, Pakistan feared their current objections may meet a similar fate with the neutral expert and it has gone to the PCA expecting it to go by the letter of the Treaty. The wording of the Treaty does not accommodate for advances in technology,” he told The Diplomat.

Chokkakula, however, finds the World Bank’s decision to initiate two simultaneous processes “puzzling.”

“The PCA’s arguments may be legally justified but will it lead to any effectiveness? Arbitration between sovereign nations itself is about the initially agreed resolution process. If one party says it is not a party to it, how would the decision be given effect?” he asks.

Chokkakula feels that India has “a solid, legitimate demand” that when the technology has advanced and there are emerging risks like climate change, it is in the interest of both parties that these issues be accommodated, and contribute to the enduring relevance of the Treaty. “By denying these possibilities, Pakistan may be doing a disservice not only to the Treaty and its resilience but also its own interests,” he said.

Mian Ahmed Naeem Salik, a research fellow at the Islamabad-based think-tank Institute of Strategic Studies (ISSI), said that Pakistan believes in the full implementation of the IWT and its dispute resolution mechanism and that it will continue to uphold the IWT.

“Pakistan will continue to raise its voice in the international forum and try to find a resolution as both countries are unable to resolve the water issue bilaterally,” Salik told The Diplomat, adding that he believes India, too, should try to allay Pakistan’s concerns regarding dam designs. “Both countries are water scarce and the IWT provides a sound mechanism for both countries to address their water sharing issues,” he said.

Salik added that the Indus Water Commissioners from both sides should be empowered to work together and make rational decisions uninfluenced by the political situations. “Regular meetings between both sides and sharing of designs and data can help to prevent future problems from arising and need to be looked at. This is a very important issue for both countries and should be resolved amicably following the guidelines of IWT,” said Salik.

Indus water commissioners working without considering the domestic political situation is, perhaps, the most difficult among the challenges. As environmental historian Daniel Haines pointed out in a February 2023 article, political narratives in Pakistan “have cast the struggle for Indus waters as a matter of national survival.” Pakistan’s hardline stance on the treaty “has always been a product of fear,” he said.

“If India abrogates the treaty unilaterally, Pakistani leaders could view it as a deliberate attempt to destroy the country,” wrote Haines, who authored the book “Rivers Divided: Indus Basin Waters in the Making of India and Pakistan.” He added that the domestic costs of being seen to make concessions to India through renegotiation “would be too high to bear for any Pakistani leadership.”

On the other hand, he noted, even if discarding the treaty could harm India’s international reputation, “the BJP has consistently prioritized domestic politics over international opinion.”

According to Neeraj Singh Manhas, director of research in the Indo-Pacific Consortium at the New Delhi-based policy research think-tank Raisina House, India will wait for the neutral expert’s report. “If the report is not satisfactory to India, then it may consider taking the matter to the International Court of Justice,” he said. The next meeting of the neutral expert process is scheduled to be held in September 2023.

Manhas told The Diplomat that the recent developments around the PCA are a reminder of the importance of dialogue and cooperation between India and Pakistan. “The two countries need to find a way to resolve their differences peacefully, in a way that is fair to both sides,” he said, adding that “the best possible solution for both India and Pakistan would be to reach an agreement on the Kishenganga and Ratle projects outside of the court system.”

Meanwhile, India is busy expediting several other projects on the Indus River system, including its western rivers. On May 26, Deputy National Security Advisor Vikram Misri chaired the second meeting of the Indus Task Force and stressed the need for all Indus Basin projects to be completed in a time-bound manner “to enable better utilization of India’s rights under the Indus Waters Treaty.”