India has issued a notice to Pakistan seeking a review and
modification of the Indus Waters Treaty (IWT) citing Pakistan’s “intransigence” in
resolving disputes over the Kishanganga and Ratle (on Chenab
River) hydropower projects, both in Jammu and Kashmir.
§ The notice was sent
after the “contravention of the graded mechanism of dispute settlement
envisaged by Article IX of the IWT.”
What is the History of the Dispute over
the Hydel Projects?
§ 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
had approached the World Bank 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.
o India had argued that
Pakistan’s request for a Court of Arbitration violated the graded mechanism of dispute
resolution in the Treaty.
§ In March 2022, the World
Bank decided to resume the process of appointing a Neutral Expert and a
Chairman for the Court of Arbitration.
What is Indus Waters Treaty?
About:
India and Pakistan
signed the IWT in September, 1960 after nine years of negotiations, with the World Bank being
a signatory to the pact.
The treaty sets out a
mechanism for cooperation and information exchange between the two sides on
the use of the water of the Indus River and its five tributaries Sutlej,
Beas, Ravi, Jhelum, and Chenab.
§ Key Provisions:
o Water Sharing:
·
The treaty prescribed how water from the six rivers of the
Indus River System would be shared between India and Pakistan.
It allocated the three
western rivers—Indus, Chenab and Jhelum—to Pakistan for unrestricted use,
barring certain non-consumptive, agricultural and domestic uses by India and
the three Eastern rivers—Ravi, Beas and Sutlej—were allocated to India for
unrestricted usage.
This means that 80% of
the share of water went to Pakistan, while leaving the rest 20% of water for
use by India.
Permanent Indus Commission:
It also required both
the countries to establish a Permanent Indus Commission constituted by
permanent commissioners on both sides.
According to the provisions of the IWT, the
Permanent Indus Commission is required to meet at least once a year.
o Rights over Rivers:
While Pakistan has
rights over the waters of Jhelum, Chenab and Indus, Annexure C of the IWT
allows India certain agricultural uses, while Annexure D allows it to build ‘run of the river’ hydropower projects, meaning projects
not requiring live storage of water.
Dispute Resolution Mechanism:
The IWT provides a
three-step dispute resolution mechanism under Article IX of the Indus Waters Treaty, under which
“questions” on both sides can be resolved at the
Permanent Commission, or can also be taken up at the inter-government level.
In case of unresolved
questions or “differences” between the countries on water-sharing, such as
technical differences, either side can approach the World Bank to appoint a Neutral Expert (NE) to come to a
decision.
And eventually, if
either party is not satisfied with the NE’s decision or in case of “disputes”
in the interpretation and extent of the treaty, matters can be referred to a Court
of Arbitration.
What is
Kishanganga Hydroelectric Project?
§
The Kishanganga project is located 5
km north of Bandipore in Jammu and Kashmir, India.
§
It is a run-of-the-river project that includes a 37
m tall concrete-face rock-fill dam.
§
It requires to divert
water from the Kishanganga River through a tunnel to a power plant in the Jhelum River
basin.
§
It will have an installed capacity of 330 MW.
§
The construction of this hydroelectric project began in 2007.
§
Pakistan objected to the project arguing that it will
affect the flow of the Kishanganga River (called the Neelum River in Pakistan).
§
In 2013, The Hague’s Permanent Court of Arbitration (CoA) ruled
that India could divert all the water with certain
conditions.
Way Forward
The role of India, as a responsible upper riparian abiding by the provisions of the treaty, has been remarkable but the country is under pressure to rethink the extent to which it can remain committed to the provisions, as its overall