In a first, India calls for renegotiation of Indus Waters Treaty, sends notice to Pakistan

India has sent a notice to Pakistan calling for renegotiations of the Indus Waters Treaty, by modifying it, in the backdrop of the dispute resolution mechanism in a logjam for 5 years. This is for the first time New Delhi has called on Islamabad for the modification of the treaty that was signed in 1960 in Karachi between the then-Indian Prime Minister Jawaharlal Nehru and then-Pakistani President Ayub Khan.

Sources said, "India has issued notice to Pakistan for modification of the Indus Waters Treaty (IWT) of September 1960..Pakistani intransigence on the Indus Waters Treaty forced India to issue a notice of modification to the Treaty". The notice for modification is in line with the Article XII (3) of the treaty. Under the notice, India has called on Pakistan to enter into intergovernmental negotiations within 90 days to "rectify the material breach" of the treaty and also "update the treaty to incorporate the lessons learned over the last 62 years", sources explained. While India has not listed out what can be modified, a change in any provision means a new treaty.

Under the Indus water treaty of 1960, the waters of 3 Eastern Rivers - Sutlej, Beas, and Ravi are allocated to India for unrestricted use while the waters of 3 Western rivers - Indus, Jhelum, and Chenab go to Pakistan. Additionally, New Delhi has the right to generate hydroelectricity through the run of the river projects on the 3 Western rivers, subject to specific criteria for design. Under the treaty, Pakistan can raise technical objections on the design of Indian hydroelectric projects on Western rivers.

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One of the key issues has been dispute resolution mechanisms that have led to India issuing the notice. Article 9 of the treaty lays out the provision of dispute resolution with 3 stage graded mechanism. The first stage is a question that can be resolved at the level of Indo-Pak Indus water commissioners. If it is not resolved at that stage, then it becomes a difference that can be resolved by neutral experts. If neutral experts fail to resolve, then it comes to the stage of Court of arbitration.

In 2015, Pakistan requested the appointment of a neutral expert to examine its technical objections to India’s Kishenganga and Ratle Hydro Electric Projects (HEPs). The following year, that is 2016, Pakistan unilaterally retracted from the "neutral expert" mechanism and proposed that a "Court of Arbitration" decide on its objections. Meanwhile, India made a separate request for the matter to be referred to a neutral expert. The initiation of two simultaneous processes on the same issue essentially creates a legal issue. That year, the World Bank had paused the process, only to revive it in March 2022.

Sources pointed out, "at Pakistan’s continuing insistence, the World Bank has recently initiated actions on both the neutral expert and Court of Arbitration processes. Such parallel consideration of the same issues is not covered under any provision" of the treaty, adding, "faced with a such violation of the treaty provisions, India has been compelled to issue a notice of modification". 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.

The last Indus water talks took place in Delhi between India's Indus water commissioner AK Pal and Pakistani counterpart Mehr Ali Shah. The next meeting of the Indus water commission will take place in Pakistan.

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