The IWT threat

The Permanent Court of Arbitration (PCA) in The Hague has delivered a landmark judgment regarding India’s illegal holding in abeyance of the Indus Waters Treaty (IWT).

According to the latest judgment, the Court of Arbitration finds that it has a "continuing responsibility to advance its proceedings in a timely, fair and efficient manner without regard to India’s position on abeyance, and that a failure to do so would be inconsistent with its obligations under the Treaty". The judgment is a stinging rebuke to India’s unilateralism, which has violated international law with impunity, under the assumption that its geopolitical standing would shield it from international censure.

India’s suspension of the IWT is a consequence of a foreign policy driven by ideological hauteur and misanthropy, rendering it incapable of assessing the negative fallout of its warmongering and disregard for international law. The IWT is a robust river-sharing mechanism that has endured even through past wars between the two countries. However, since the ideologically obsessed BJP government came to power in India, it has steadily attempted to undermine the international legal framework that supports peace and stability in the region.

India’s stock-in-trade tactics, such as false flag operations and the rejection of IWT commitments, pose a clear and present danger to regional peace. The throttling of Pakistan’s river flows, along with the resulting desertification of its agricultural lands, has been a recurring theme in the BJP government’s anti-Pakistan rhetoric.

The conflation of terrorism with river denial has led to incendiary statements such as "blood and water cannot flow together" by Prime Minister Modi. This statement serves as a veritable blueprint for Indian water aggression against a lower riparian state.

In pursuit of the above objective, India has embarked upon a strategy to choke the water flow of the three Western rivers allocated to Pakistan under the IWT. To achieve this end, it has launched a campaign targeting all three Western rivers, especially the Chenab River, on which India is planning to construct 60 dams.

India does not have much leverage over the Indus River, as most of its water share comes from tributaries located inside Pakistan. The Chenab, however, is the most vulnerable river, as it originates and passes through Himachal Pradesh and Jammu, where India has the space to construct dams.

The IWT allows India to use water from the Western rivers (up to 3.6 million acre-feet of water storage) for non-consumptive purposes such as agriculture, drinking, and power generation. So far, India has not fully utilised the 3.6 MAF storage allowance and has a power generation capacity of 3,360MW. However, it plans to enhance this capacity to 12,000MW. There are also controversial projects, such as the pre-partition Ranbir Canal, the length and capacity of which is being doubled to 120 kilometres, allowing it to draw 150 cubic meters of water per second near Akhnur.

Dams on the Chenab raise fears of Indian manipulation of Pakistan’s allocated water share under the IWT. Already, during the lean season, the Chenab’s river flow is reduced by 7% to 10%, and Pakistan estimates that once all upstream dams on the Chenab become operational, India could reduce river flow by 10% to 15%.

The main sticking point between Pakistan and India is the design features related to the storage capacity of these hydroelectric projects. India argues that it needs design changes to allow the flushing of sediments from reservoirs in order to prolong their operational life. However, Pakistan contends that such changes must strictly conform to Annex D [Paragraph 8 to Article 2(d)] of the IWT, which outlines permissible design features for run-of-the-river hydroelectric projects.

These parameters refer to the location of water inlets below the dead storage level, the placement of the bottom of gates in the case of gated spillways and the intake of turbines at the highest possible level, to ensure that storage capacity does not exceed permissible limits. According to the IWT, India is required to inform Pakistan of any proposed run-of-the-river project six months in advance. India is now attempting to wriggle out of this commitment.

In addition to Pakistan’s insistence on referring disputes to the Court of Arbitration and the Neutral Expert in the cases of Ratle and Kishanganga, India has cited four "fundamental and unforeseen" reasons — climate change, demographic shifts, a commitment to clean energy and terrorism — for holding the IWT in abeyance. However, it is not honouring its environmental or ecological preservation obligations, as evidenced by the destruction of 70 acres of conifer forest for the Ratle Project.

India is in violation of Article 12 of the IWT, which states that the treaty can only be terminated through a mutually ratified new agreement between the two countries. It is also in breach of the Vienna Convention on the Law of Treaties (VCLT), which stipulates that a treaty may only be suspended in accordance with its own provisions (Article 57), or if one party is found in "material breach" of the treaty. India neither has the legal standing to suspend the treaty nor any evidence to prove that Pakistan has committed a material breach.

Pakistan has won the first round in the legal battle with the PCA ruling, and the next step should be to seek a legal opinion from the International Court of Justice (ICJ), either through the World Bank or the UN General Assembly.

India’s revocation of the treaty threatens to set a dangerous precedent for global transboundary conflicts, endangering many other water-sharing conventions and agreements. Worldwide, 153 countries share 286 transboundary rivers and 592 aquifer basins.

The IWT has long been an exemplary model of transboundary river-sharing, something the world increasingly needs amid growing water scarcity and India's revocation of it poses an existential threat to both regional and global transboundary cooperation.

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The writer is a security and defence analyst. He can be reached at: [email protected]

Originally published in The News