By: Raja Waqar Ahmed
(Formerly Manager Contracts & Claims – CGGC Neelum Jhelum Project)
On 25th January 2023, India sent a notice over the modification of the Indus Water Treaty (IWT) to Pakistan. The notice aims to seek amendments in the treaty and asserts that the Pakistan’s delaying actions on India’s Kishenganga and Ratle Hydropower Projects are adversely affecting the provisions of the Indus Water Treaty. And added that these delaying tactics by Pakistan forced India to issue this notice. According to the provisions of the Treaty, the notice was served to the respective Indus Water Commissioner Islamabad; later the Government of Pakistan has confirmed receipt of the notice.
It is written in the notice that Pakistan approached the World Bank in 2015 for the appointment of Neutral Expert on its technical objections on aforementioned Kishenganga and Ratle Hydropower Projects. Subsequently, Pakistan unilaterally withdrew on the appointment of Neutral Expert and suggested adjudication in the Court of Arbitration on its technical/legal objections. The notice further states that two parallel proceedings and their different results are in contravention of the dispute resolution mechanism, as well as dishonouring the very basic provisions of the Treaty.
In response to the received notice the Government of Pakistan has categorically denied the allegations levelled in the notice and maintained that the Treaty can never be modified unilaterally by any party. It is important to note that the Indus Waters Treaty presents two recourses for the settlement of any disputes that may arise regarding the distribution of water from any of the rivers covered in the Treaty. The first is the Court of Arbitration which addresses legal, technical and systemic issues. The second recourse is a neutral expert that addresses only technical issues. In fact, India is misleading the facts and in a sneaky way trying to divert the attention from the proceeding being held in the Court of Arbitration at the Hague.
There is a Kashmiris’ point of view/opinion regarding modification in the Indus Water Treaty, which is narrated in the last paragraphs. However, the following could be the main reasons of India’s recent notice and some major Indian violations of the Treaty since it was signed in 1960.
Right after six months from the day of independence, April 1948, India stopped the water coming into the canal systems of Pakistan. From that very day conflict of water distribution started between both countries. After long 9 years of deliberations/negotiations, both countries signed an agreement on 19-Septemeber-1960 at Karachi by the then Prime Minister of India (Jawaharlal Nehru) and the then President of Pakistan (Ayub Khan), which is known as ‘Indus Water Treaty’.
The World Bank set out a mechanism for cooperation between the two countries and arranged the Treaty regarding the sharing of waters of Indus River and its tributaries/rivers. According to the Treaty, India got control over the waters of three eastern rivers namely – the Beas, Ravi and Sutlej with an estimated average annual flow of 33 MAF. While, Pakistan got full control over the waters of three western rivers namely – the Indus, Jhelum and Chenab with an estimated average annual flow between 122-135 MAF.
Pursuant to the Treaty, India is also allowed to use the waters of Western Rivers for limited irrigation use and unlimited non-consumptive use for power generation, navigation, floating of property, fish culture, etc. Unfortunately, based on the latter restricted provisions of the Treaty, India is cunningly finding benefits continuously from the provisions and repeatedly attempts to violate the Treaty. Despite having all waters of Eastern Rivers, India has still continued water insurgency against Pakistan.
As the sources of all Rivers under IWT fall in Jammu & Kashmir, which is occupied by India, and India being at the Head-End of the Rivers does not spare any malicious chance to violate the Treaty. Some of the major violations are as follows;
- Salal Hydro Power Project: India started this project in 1970 on River Chenab. The first phase of the project was completed in 1987 and the second phase in 1994.
- Baglihar Hydro Power Project: Project started in 1992 on River Chenab and was completed in 2005.
- Dull Hasti Hydro Power Project: The project is on River Chenab, started in 1991 and completed in 2004.
- Sawal Kot Pakal Dull and Barsar Hydro Power Projects: Surveys and designs are being prepared for the projects. If the project id found against the provisions of the Treaty, Pakistan will object to the projects with concerned forums.
- Wullar Barrage on Jehlum River: India secretly started works on the Barrage in 1985. Upon information about the construction works, Pakistan strongly condemned and compelled India by involving World Bank to stop the construction works.
In recent years, India is lobbying in international circles and trying to ascertain that the 35 MAF water of River Indus is annually being wasted in the Arabian Ocean. Till the time Pakistan is not economically and financially able to construct reservoirs to harness this precious water wasted into the Ocean, India should be allowed to use/conserve waters of Western Rivers too by constructing reservoirs on River Chenab and Jhelum. Under this pretext, India wants to construct 330 MW Kishenganga HPP on the River Jhelum and 850 MW Ratle HPP on the River Chenab.
Due to geographical restrictions, India cannot construct any project/intervention on the River Indus but the sources of River Chenab and Jhelum are in the Indian Held Kashmir and the flow of the latter rivers are under full control of India to intervene/obstruct before reaching into Pakistan. Through international lobbying, India wants to construct reservoirs on the River Chenab and Jhelum by levelling allegations of wasting of water against Pakistan. To attain these unwarranted wishes, India uses all legitimate or illegitimate means and the recent notice over the modification of IWT is one of them.
From a Kashmiris’ point of view, the presence of both governments (India & Pakistan) has always been legally questionable! However, given the current constitutional status of the State of Jammu and Kashmir, it is the prime obligation of both governments to secure all interests and benefits of the People of Jammu and Kashmir. In prima facia, both governments have signed the IWT purely for their interests, where the interest and consent of the people of Jammu and Kashmir are not reflecting.
Almost all rivers of the Indus Water System run over the land of Jammu and Kashmir and being natural water resources bestowed to the Kashmir, Kashmiris must be on first priority to be benefited from these resources in the shape of development, energy sufficient and prosperity. Despite these ample water resources owned by Jammu and Kashmir, the people of the State are not fully facilitating with clean drinking water, required irrigation supply and sufficient electricity. Here stanza of Allama Iqbal comes true:
A few Kashmiri leaders are also of the view that the Indus Water Treaty should be modified, as the consent and benefits of the people of Jammu and Kashmir were not taken into account in the Treaty. But this is also a stark fact that abrogation or modification of the Treaty is not a simple option. If this happens, then many international controversies will rise and the present economic and administrative position of both governments (India and Pakistan) do not permit to open another unresolvable front for them.
Construction of Mangla Dam took place under the light of the Treaty, which uprooted thousands of local people. Later on, the Uprising of Mangla Dam also uprooted and displaced hundreds of thousands of people of District Mirpur. Without prejudice after the completion of the projects, the people of Pakistan including AJ&K benefited from the outcomes of the projects. But it is regrettable to note that in spite of memorandums/assurances to the people of the State, the project’s royalty is still denied i.e. (a) 500 Cusec water for drinking and irrigation projects of the State (b) sufficient supply of low-cost electricity to the State. Similarly, wherever hydropower projects are constructed whether in the State or in Provinces, the local population of the projects suffers adversely. It becomes the solemn obligation of the governments across the border to give appropriate compensation and royalty to locally affected people.
In any case, the people of the whole State strongly condemn India’s continuous violations of the Kashmir Issue as well as on violation of the Indus Water Treaty. Sidewise, the Government of Pakistan and Government of Azad Kashmir must ensure the protection of Kashmir, the resources of Kashmir and the people of Kashmir, not merely with official statements but on practical grounds. Appropriate royalties should be given to the people of the State from all hydropower projects executed and being executed in the State, on both sides of the divide. Specifically, in Azad Kashmir, concrete protocols/steps should be taken to supply 500 cusec water for drinking/irrigation projects from Mangla Dam in District Mirpur and Bhimber, so as the deprivations of the affected people could be ameliorated.
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