As government sources increasingly up the ante on the Indus Waters Treaty, with the ministry of external affairs (MEA) spokesperson Arindam Bagchi now questioning the role of the World Bank, the country risks severe embarrassment. While the dispute over the Kishanganga dam, and later the Ratle dam, has been decades in the making, the current problems have much more to do with domestic posturing than the substance of the treaty.
The core problem is fairly simple. Pakistan objected to the Kishangagnga dam because it envisaged a shifting of water from one tributary of the Jhelum to another. While the overall amount of water going to Pakistan remained about the same, the lowered amount in the higher tributary (offset by being diverted to a lower one) meant that the Neelum Jhelum Project that Pakistan wanted to build on its side of Kashmir would receive a lower flow, possibly lowering its efficiency. Since the Pakistani government had been charging a cess on electricity to fund the dam, not being able to build it, or it being less efficient, was an embarrassment.
Also read: ‘Compelled by Pakistan’s Actions,’ India Calls for Indus Waters Treaty Modification
Nonetheless, the Indus Waters Treaty does not prohibit such diversions on the water of the western rivers allocated for Pakistan. The Court of Arbitration assembled in 2010 was very clear in its verdict delivered in 2013, that the IWT allowed this, and because India had started work on its project well before Pakistan, Pakistan could not argue “prior usage”.
The verdict also asked India to make some design changes, which Pakistan has alleged that India has not done.
This could have been handled in various ways. Indian policymakers have long grumbled that Pakistan uses the treaty to slow down or harm India’s development. Pakistani policymakers, on the other hand, argue that India is often unnecessarily opaque in its working, and without transparency, it has little recourse except to raise disputes to be assured that its share of the Indus waters, on which nearly 80% of its population depend, is safeguarded. India could have shared the details with Pakistan through the Indus Water Commissioners, or it could even have put this information out publicly, undercutting the appeal of various actors, such as the Lashkar-e-Taiba/Jamat-ud-Dawa chief, Hafiz Saeed, who have tried to raise tensions by making declarations such as, “Either water or blood will flow” in 2009-10.
But, despite the early outreach between Narendra Modi and Nawaz Sharif when the Modi government came to power, the Indian establishment chose to do none of this. As the mood soured on both sides, Pakistan asked for a Neutral Expert – one who deals with “differences” between the positions of the two countries on the Indus Waters Treaty – to be appointed to deal with the issue in 2015. On August 22, 2016, it upped the ante by asking the World Bank to appoint a Court of Arbitration – which deals with “disputes”, withdrawing its request of the Neutral Expert.
Then came the Uri attack in 2016, when Jaish-e-Mohammed militants killed more than a dozen Indian soldiers. In September 2016, at a review meeting 11 days after the attacks, Narendra Modi declared that “blood and water can’t flow together”, suggesting that the Indus Waters Treaty would be put under strain.
The timing is important, in the words of the home minister, aap chronology samajhiye. One outcome of the review meeting was to fast-track a slew of projects on the Indus rivers by India. And, in a related development, on 4 October 2016, India asked the World Bank to appoint a Neutral Expert on the same dispute.
The treaty prohibits a CoA from being appointed if a Neutral Expert is examining a subject. By using this procedure, India put the World Bank – the guarantor of the treaty – in a difficult place. The World Bank has no authority under the treaty to reject either request. Nor could it, in good faith, accept India’s argument that a Neutral Expert had to be appointed first, especially when the 2013 verdict had clearly stated that the treaty does not prohibit a demand for a CoA without a Neutral Expert having first examined the issue. It further stated that the issue was a “dispute”.
India’s hardline tactic seemed to have worked initially, because the World Bank paused both processes, and asked the two countries to find a way forward. Since the Shimla Treaty, India has preferred this method of dealing with Pakistan, looking to contain the conflict and not “internationalise” the issue, as a CoA proceeding would inevitably do. The pause continued for the next five years, except then the World Bank decided that the pause was itself endangering the treaty, and appointed both a CoA and a Neutral Expert on October 17, 2022.
This was not what India had in mind. It had thought that by asking for a Neutral Expert it would torpedo the CoA, now it has both. It certainly would not enjoy being called to task at an arbitral court in the Hague as it tries to project India’s assumption of the rotating presidency of the G20 as evidence of “global leadership”.
Also Read: Current Events Surrounding the Indus Waters Treaty Have Consequences Beyond India and Pakistan
With nothing left, and unwilling to take part in the arbitration proceedings, the Indian government has now blamed Pakistan for sabotaging the treaty, and now the World Bank, for instituting two processes, potentially at odds with each other. But it is India that specifically requested the second process. According to its note, India demands that Pakistan fall in line, or that it will be “compelled” to renegotiate the treaty. But there is nothing in the treaty that allows India to either demand such a change unilaterally or to boycott the CoA. In fact, the accusations against Pakistan and the World Bank, especially in line with the 2013 CoA verdict, open India to a wider challenge. Whether India boycotts the CoA or abrogates the treaty, it allows Pakistan to claim the moral high ground, and even opens up the scope for a case in the International Court of Justice, because that would be the only venue where such a treaty could be adjudicated.
All of this stems from an incredibly petty wish not to share information, or subject Indian dams to examination by outside experts. Given the history of Indian dam building, the delays and disasters that have accompanied so many, transparency and external examination would possibly have been in India’s self-interest. The 2010 CoA is a case in point. India accepted having one without even involving the World Bank. While it caused a small delay, India could celebrate the verdict as one in which it had proven its case completely. It lost nothing and gained much, whereas the posturing from 2016 onwards has left it with nothing gained, and embarrassment that could become far, far worse.
Omair Ahmad is an author and journalist. He studied international relations at JNU, New Delhi, and the Maxwell School, Syracuse University, NY.
