India issues notice to Pakistan for modification of  Indus Waters Treaty

India has issued notice to Pakistan for modification of the Indus Waters Treaty (IWT) of September 1960 after Islamabad’s actions adversely impinged the provisions of the treaty, according to sources.

The notice was conveyed on January 25 through respective Commissioners for Indus Waters as per Article XII (3) of the IWT. The objective of the notice for modification, according to sources, is to provide Pakistan with an opportunity to enter into intergovernmental negotiations within 90 days to rectify the material breach of the IWT. This process would also update IWT to incorporate the lessons learned over the last 62 years.

India has always been a responsible partner in implementing the IWT. Pakistan’s actions, however, have encroached on the provisions of IWT and their implementation and forced India to issue an appropriate notice for modification of IWT, sources said.

In 2015, Pakistan requested for the appointment of a Neutral Expert to examine its technical objections to India’s Kishenganga and Ratle Hydro Electric Projects (HEPs). In 2016, Pakistan unilaterally retracted this request and proposed that a Court of Arbitration adjudicate its objections.

According to sources, this action by Pakistan is a breach of the graded mechanism of dispute settlement envisaged by Article IX of IWT. India thus made a separate request 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 IWT itself. The World Bank acknowledged this itself in 2016, and took a decision to “pause” the initiation of two parallel processes and requested India and Pakistan to seek an amicable way out, sources say.

Pakistan, despite repeated efforts by India to find a mutually agreeable way forward, has refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2022.

The World Bank at Pakistan’s continued insistence 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 IWT.

The World Bank in October 2022, made appointments in two separate processes requested by India and Pakistan in relation to the Kishenganga and Ratle hydroelectric power plants.

It appointed a chairman of the Court of Arbitration and a neutral expert “in line with its responsibilities” under the Indus Waters Treaty.

A World Bank release said that the two countries disagree over whether the technical design features of the two hydroelectric plants contravene the Treaty.

It said Pakistan asked the World Bank to facilitate the establishment of a Court of Arbitration to consider its concerns about the designs of the two hydroelectric power projects, while India asked for the appointment of a Neutral Expert to consider similar concerns over the two projects.

Michel Lino was appointed as the Neutral Expert and Sean Murphy was appointed as Chairman of the Court of Arbitration. They will carry out their duties in their individual capacity as subject matter experts and independently of any other appointments they may currently hold, the release said.

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