India has issued a notice to Pakistan for modification of the Indus Waters Treaty (IWT) of September 1960.

The notice comes following Islamabad's "intransigence" on its implementation, government sources said earlier today (27 January), adding that the notice had been sent to Islamabad on 25 January this year, through respective commissioners for Indus waters.

"Pakistan's actions have adversely impinged on the provisions of IWT and their implementation, and forced India to issue an appropriate notice for modification of the pact," reports have quoted a source as saying.

India and Pakistan signed the treaty in 1960, after nine years of negotiations, with the World Bank acting as the third party. The treaty sets out a mechanism for cooperation and information exchange, between the two countries, regarding use of waters of a number of rivers.

What Is The Indus Water Treaty?

The Indus Water Treaty was brokered by the World Bank and allocates the use of six rivers in the Indus River system: the Indus, Jhelum, Chenab, Ravi, Beas, and Sutlej. Under the treaty, India has control over the eastern rivers (the Ravi, Beas, and Sutlej) while Pakistan has control over the western rivers (the Indus, Jhelum, and Chenab).

The treaty also provides for the construction of hydroelectric power plants on the rivers by both countries, but with certain restrictions. India is allowed to tap the eastern rivers for certain 'non-consumptive purposes' which do not reduce the flow of the water to Pakistan.

Additionally, the treaty requires the countries to share data on water flows and to consult each other in case of a drought or flood.

The treaty also established a Permanent Indus Commission, consisting of one commissioner appointed by each country, to resolve disputes.

What Does India's Notice Mean?

The current issue, which has culminated in the notice issued by New Delhi this week, dates to 2015 — when Pakistan requested for appointment of a neutral expert to examine its technical objections to India's Kishenganga and Ratle Hydro Electric Projects (HEPs).

The Kishenganga Hydroelectric Plant is a 330 megawatt run-of-the-river hydroelectric power station on the Kishenganga River, a tributary of the Jhelum River. The Ratle Hydroelectric Plant is a 850 megawatt hydroelectric power project on the Chenab River.

According to Pakistan, the construction of these projects would change the river flow and would violate the treaty's provisions regarding the western rivers, which Pakistan has control over.

Pakistan also argues that the construction of these projects would reduce the water flow to Pakistan, affecting its irrigation and hydropower generation.

In 2016, Pakistan unilaterally retracted this request and proposed that a Court of Arbitration adjudicate on its objections.

Howver, India has argued that the Kishenganga and Ratle Hydro Electric Projects are within its rights, under the Indus Water Treaty. India argues that the treaty allows for the construction of hydroelectric power plants on the western rivers with certain restrictions, and that the projects comply with these restrictions.

New Delhi has said that the projects are run-of-the-river hydroelectric power stations, which do not store water and therefore do not change the natural flow of the rivers. Additionally, India claims that the projects are designed to use only a small portion of the available water flow, and will not significantly reduce the water flow to Pakistan.

In the past, Pakistan has approached the World Bank flagging concern over designs of India’s five hydroelectricity projects being either built or planned in the Indus river basin, saying these violate the treaty.

In 2010, Pakistan moved the Court of Arbitration at The Hague, which stayed the project for three years. But much to Islamabad’s displeasure, the court ruled in India’s favour in 2013.

It said that the project is “a run-of-river plant within the meaning of the Indus Waters Treaty and that India may accordingly divert water from the Kishenganga/Neelum River for power generation.”

India has also objected to Pakistan's decision to take the matter to the International Court of Arbitration. India's argument is that the Indus Water Treaty has a mechanism for resolving disputes between the two countries, which is the Permanent Indus Commission.

According to India, the treaty requires that disputes be resolved through bilateral negotiations and consultations between the two countries, rather than through international arbitration.

Accordingly, India made a separate request for the matter to be referred to a neutral expert.

"The initiation of two simultaneous processes on the same questions and the potential of their inconsistent or contradictory outcomes creates an unprecedented and legally untenable situation, which risks endangering the IWT itself," the source said.

"The World Bank acknowledged this itself in 2016, and took a decision to 'pause' the initiation of two parallel processes and request India and Pakistan to seek an amicable way out," it said.

The sources said that despite repeated efforts by India to find a mutually agreeable way forward, Pakistan refused to discuss the issue during the five meetings of the Permanent Indus Commission, from 2017 to 2022.

At Pakistan's continuing insistence, the World Bank has recently initiated actions on both the neutral expert and Court of Arbitration processes, they said.

The sources added that such parallel consideration of the same issues is not covered under any provision of IWT.

"Faced with such violation of IWT provisions, India has been compelled to issue notice of modification," the source cited above said.

India Seeks Amendment To The Treaty

Under the notice, India has called on Pakistan to enter into intergovernmental negotiations within 90 days to "update the treaty to incorporate the lessons learned over the last 62 years," government sources explained.

Over the last few years, India has expressed dissatisfaction with the arrangement under the treaty, with Prime Minister Narendra Modi himself stating, as late as 2019, that India can no longer allow Pakistan to use water from its share.

However, speaking at Jammu University that year, Pradeep Kumar Saxena, Indian Commissioner for Indus Waters, had disabused the notion that the treaty is unfair to India.

“When someone says the treaty is unfair to India, my simple answer is that we could not utilize our rights in terms of western rivers (Indus, Chenab and Jhelum), which have been given under the treaty. So, I can't say the treaty is unfair to us unless we utilize all our rights,” Saxena said.

Therefore, many view India's demand for amendment to the treaty as more of a pressure-building tactic to bring Pakistan back to the bilateral mechanism of dispute resolution, than an attempt to seek a material change in allocations awarded under the treaty.

(With inputs from PTI)

Also Read: The Indus Waters Treaty: Can India Inflict Significant Damage By Abrogating It?

How India Can Unilaterally Walk Away From The Indus Waters Treaty

International court of arbitration

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