‘Intransigence’: India notifies Pakistan of plans to amend Indus Waters Treaty

India has informed Pakistan of its intention to amend the Indus Waters Treaty of 1960, which sets out a mechanism for management of cross-border rivers, because of the Pakistani side's "intransigence" in implementing the pact, people familiar with the matter said on Friday.

The "notice for modification" of the treaty was conveyed by the Indian side on January 25 through the Commissioners for Indus Waters of the two sides. India was forced to issue the notice as Pakistan's actions had "adversely impinged" on the provisions of the treaty and their implementation, the people said.

The Indus Waters Treaty was signed in September 1960 after nine years of negotiations between India and Pakistan and was brokered by the World Bank, which too is a signatory. It is the most durable treaty between the two countries but has come under considerable pressure in recent years as bilateral relations plunged to an all-time low due to tensions related to terrorism and Jammu and Kashmir.

"India has always been a steadfast supporter and a responsible partner in implementing the Indus Waters Treaty in letter and spirit. Pakistan's intransigence on the treaty forced India to issue a notice of modification," one of the people said.

The notice will open up the process for making changes to the treaty for the first time since it was signed in Karachi on September 19, 1960, by then Pakistan president Mohammad Ayub Khan, then Indian prime minister Jawaharlal Nehru and WAB Illif of the World Bank.

"The objective of the notice for modification is to provide Pakistan an opportunity to enter into inter-governmental negotiations within 90 days to rectify the material breach of the Indus Waters Treaty. This process will also update the treaty to incorporate the lessons learned over the last 62 years," the person cited above said.

The notice was issued in line with Article XII (3) of the treaty, which states: "The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments."

While explaining India's move, the people noted that in 2015, Pakistan requested the World Bank to appoint a "neutral expert" to examine its technical objections to India's Kishenganga and Ratle hydropower projects. In 2016, Pakistan unilaterally retracted this request and proposed a "court of arbitration" should adjudicate on the objections.

This unilateral action by Pakistan contravened the "graded mechanism of dispute settlement" envisaged by Article IX of the Indus Waters Treaty, the Indian side contended. India then made a separate request to the World Bank 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 treaty itself," the person 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," the person added.

Despite the Indian side's repeated efforts to find a mutually agreeable way forward, Pakistan refused to discuss the issue during five meetings of the Permanent Indus Commission from 2017 to 2022, the people said.

At Pakistan's insistence, the World Bank 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. Faced with such violation of treaty provisions, India was compelled to issue the notice of modification," the person said.

At the time of independence in 1947, the boundary between India and Pakistan was drawn across the Indus Basin, leaving Pakistan as the lower riparian state. A dispute arose because some important irrigation works, including one at Madhopur on Ravi river and another at Ferozepur on Sutlej river, on which the irrigation canal supplies in Pakistan's Punjab province were completely dependent, were left in Indian territory.

The treaty allocated the western rivers – Indus, Jhelum, Chenab – to Pakistan and the eastern rivers – Ravi, Beas and Sutlej – to India. It also allowed each country certain uses on the rivers allocated to the other.

The treaty includes a mechanism for cooperation and information exchange regarding their use of rivers, known as the Permanent Indus Commission, which has a commissioner from each country. According to the World Bank, the pact also has distinct procedures to handle issues – "questions" are handled by the commission, "differences" are resolved by a neutral expert, and "disputes" are referred to the court of arbitration, a seven-member arbitral tribunal.

The World Bank's role is "limited and procedural". Its role in "differences" and "disputes" is limited to designating individuals to fulfill roles as a neutral expert or in the court of arbitration proceedings when requested by either or both sides.