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Neutral expert upholds India’s stand on Indus Water Treaty: How Kishanganga and Ratle hydroelectric projects rattled Pakistan

Despite Pakistan's protests, Prime Minister Narendra Modi inaugurated the Kishanganga project in May 2018. Over 300 megawatts of electricity might be generated and at least 30,000 hectares of land can be irrigated using the approximately 0.65 million acre-feet (MAF) of water that the Kishanganga project stores from the Ujh river.

On 21st January, the World Bank-appointed neutral expert declared that it has the authority to resolve the disputes between India and Pakistan regarding two hydropower projects in Jammu and Kashmir under the terms of the Indus Waters Treaty of 1960. Notably, the ruling supported New Delhi’s stance. An official statement from the Ministry of External Affairs (MEA) was released which conveyed, “India welcomes the decision given by the neutral expert under Paragraph 7 of Annexure F to the Indus Waters Treaty, 1960.”

According to the Indus Waters Treaty’s Annexure F, paragraph 7, a neutral expert will decide if the Permanent Indus Commission is unable to reach a consensus. After hearing from both sides, the neutral expert will determine whether the disagreement is covered by the treaty. MEA further expressed, “The decision upholds and vindicates India’s stand that all seven (07) questions that were referred to the neutral expert, about the Kishenganga and Ratle hydroelectric projects, are differences falling within his competence under the treaty.”

The ministry pointed out that India has consistently and firmly maintained that the neutral expert is the only person authorized by the treaty to resolve these conflicts and highlighted, “Having upheld his own competence, which comports with India’s view, the neutral expert will now proceed to the next (merits) phase of his proceeding. This phase will culminate in a final decision on the merits of each of the seven differences.”

Given its dedication to upholding the treaty’s sanctity and integrity, the statement mentioned that India will continue to take part in the neutral expert process. It wants to ensure that disagreements are settled in a way that complies with the treaty’s clauses prohibiting concurrent proceedings on the same set of issues. “For this reason, India does not recognize or participate in the illegally constituted Court of Arbitration proceedings,” it added and assured, “The Governments of India and Pakistan also remain in touch on the matter of modification and review of the Indus Waters Treaty, under Article XII (3)” of the same.

According to persons acquainted with the situation, the verdict favours India’s position in the procedures surrounding the Kishenganga and Ratle hydropower projects. One of the individuals noted, “It is basically a setback for Pakistan.” Another person stated, “The neutral expert’s decision is in line with the graded mechanism of dispute settlement envisaged in Article IX of the treaty, which Pakistan contravened by simultaneously approaching the Court of Arbitration.”

India requested the appointment of a neutral expert to examine similar concerns with the two hydroelectric power projects, while Pakistan urged the World Bank to help establish a Court of Arbitration to address its reservations regarding the designs of the two projects. Pakistan protested against India’s position on Kishenganga and Ratle hydropower projects in the union territory of Jammu and Kashmir. The Kishanganga hydropower plant, which is situated on the Indus tributaries, started construction in 2007 and the Ratle Hydroelectric Plant, built on the Chenab had its foundation stone placed in 2013.

Despite Pakistan’s protests, Prime Minister Narendra Modi inaugurated the Kishanganga project in May 2018. Over 300 megawatts of electricity might be generated and at least 30,000 hectares of land can be irrigated using the approximately 0.65 million acre-feet (MAF) of water that the Kishanganga project stores from the Ujh river. Then-Union Minister of Water Resources, River Development and Ganga Rejuvenation Nitin Gadkari declared in 2019 that India might cut off water supplies to Pakistan in response to the deadly Pulwama attack.

Why a neutral expert was appointed

Pakistan wanted the appointment of a “neutral expert” to examine its technical objections to India’s Kishenganga and Ratle hydroelectric power plants in 2015. However, the country unilaterally withdrew its decision and sought an arbitration hearing, the next year. A neutral expert and a chairman of the Court of Arbitration (CoA) had been nominated by the World Bank about the two projects in November of the same year. However, once India protested, the processes were stopped. World Bank representatives then met with India and Pakistan to discuss a solution.

Although both proceedings were placed on “pause” by the World Bank, they were reactivated in March 2022 when Pakistan demanded it. Meanwhile, India has participated in discussions with the neutral expert but has refrained from attending the Permanent Court of Arbitration hearings in The Hague, citing the incompatibility of the two processes. Furthermore, Pakistan declined to address the matter in any of the five Permanent Indus Commission meetings from 2017 to 2022, despite India’s persistent attempts to negotiate a compromise.

On 20th January, the neutral expert, Michel Lino, the president of the International Commission of Large Dams (ICOLD), proclaimed that he is qualified to “determine the merits of the points of difference” between India and Pakistan over the two hydroelectric projects. He added in a statement from Vienna that after hearing from both sides, a decision will be formed. However, the verdict would have rattled Islamabad.

Earlier, India formally notified Pakistan in August 2024 that the 63-year-old agreement needed to be reviewed and modified, primarily due to Islamabad’s uncooperative attitude in resolving cross-border river disputes. The notice was given by Article XII(3) of the treaty, which stipulates that provisions of the pact could be modified from time to time by a duly ratified treaty concluded for that purpose between the two governments.

On 30th August, the notice came out in conformity with Article XII(3) of the treaty following the Indian side’s “notification for modification” of the treaty on 25th January 2023. India delivered the notice in an attempt to compel Pakistan to start government-to-government talks to revise the treaty per Article XII (3). Significant disagreements between India and Pakistan concerning how to handle conflicts about the Kishanganga and Ratle hydropower projects on the Chenab and Neelam rivers in Jammu and Kashmir were the backdrop for the occurrence.

“Fundamental and unexpected changes in circumstances that require a reassessment of obligations under various articles of the Indus Waters Treaty” were highlighted in India’s notification. The impact of ongoing cross-border terrorism, environmental concerns and the need to speed up the production of clean energy to fulfil India’s emission targets and changes in the country’s population demographics were some of India’s main worries over the treaty.

The notification was sent out amid a protracted dispute over the 850-MW (Megawatt) Ratle and 330-MW Kishanganga hydropower projects. Pakistan opposed the two projects and alleged that they violated the Indus Waters Treaty. Islamabad criticized the Kishanganga project, claiming it restricted water flowing into the country. The World Bank’s involvement is mostly procedural and is restricted to appointing the chair of the arbitration court or neutral experts. Notably, it allowed India to build hydroelectric power plants on the tributaries of the Jhelum and Chenab rivers under the treaty, in 2017. 

The treaty remained unaltered since it came into existence in Karachi on 19th September 1960. It was signed by WAB Iliff who was the Vice President of the International Bank for Reconstruction and Development (IBRD), also known as the World Bank and then-Indian Prime Minister Pandit Jawaharlal Nehru and former Pakistani President Muhammad Ayub Khan.

Indus Waters Treaty and its provisions

The Indus River has been a source of contention between the four nations it flows through, India, Pakistan, China and Afghanistan ever since India was divided in 1947. The source of the river is Tibet. Water to Pakistan was temporarily cut off by India in 1948, but it was reopened following the truce. Pakistan brought the issue before the United Nations (UN) in 1951, alleging that India had cut off water to numerous Pakistani hamlets. This agreement was developed in 1954 by the World Bank based on the recommendations of the United Nations.

The World Bank was one of the signatories to the Indus Waters Treaty, which India and Pakistan signed in 1960 after nine years of discussions. The two nations eventually reached an agreement that shared ownership of six rivers. Pakistan was the lower riparian state at the time of India’s independence in 1947 since the border between the two countries was defined across the Indus Basin.

Some important irrigation projects, such as those at Madhopur on the Ravi River and Ferozepur on the Sutlej River, which were entirely dependent on irrigation canals in Pakistan’s Punjab region, were in Indian territory, which led to a conflict. The Indus, Jhelum, and Chenab rivers in the west were given to Pakistan by the Indus Waters Treaty, while the Ravi, Beas, and Sutlej rivers in the east were assigned to India. It permitted each nation to use the rivers allotted to it in a specific way.

The pact gave India sole usage of the waters of three eastern rivers, which had an average of about 33 million acre-feet (MAF). Pakistan was granted similar control over the waters of the western rivers, the Indus, Jhelum, and Chenab, with an average of about 135 MAF, however, a condition was also put forward. The treaty guarantees India the right to produce hydroelectricity through run-of-river (RoR) projects on the western rivers, provided that certain design and operation requirements are satisfied.

The United Nations established a Permanent Indus Commission to settle any disagreements over water sharing, along with an arbitration process to settle issues peacefully. The agreement permits India to use the water from the western rivers for non-consumptive domestic purposes including irrigation, storage, and energy production. According to the treaty, Pakistan receives 80% of the water from the Indus River System, while India receives 20%.

It pointed out that India and Pakistan will, to the greatest extent possible, prevent any material harm to each other when implementing any flood protection or flood control plan. The two counties also have no right to restrict the use of the natural routes of the rivers for the release of floodwaters or other excess water, and neither nation could hold the other accountable for any damage brought on by such activities.

Now, the latest judgement rendered by the neutral expert has provided a massive relief and a major boost to New Delhi concerning the significant hydropower plants.

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