Protocol to the IWT?

PAKISTAN treats the Indus Waters Treaty 1960 (IWT) as a fruit of protracted negotiations between India and Pakistan, which took several years of efforts before its finalisation. During the last 65 years of its operation, the IWT has served its purpose well. It includes substantive provisions that clearly fix and regulate the rights and obligations of both India and Pakistan. Since the IWT was a bargain between the two countries, at least for Pakistan, the lower riparian, modifications or changes in the treaty can only be considered if they address its concerns.

However, India had expressed its intent to have the IWT renegotiated before holding it in abeyance. As a matter of fact, Article XII of the IWT itself provides for this eventuality: “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.” And, “The provisions of this treaty or provisions of this treaty as modified … shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments”. India, pursuant to Article XII, sent two notices to Pakistan in January 2023 and in September 2024 inviting Pakistan to begin parleys for the IWT’s modification.

Post-Pahalgam, Pakistan has invited India to open talks on all issues including the operation of the IWT, which was held in abeyance by India in April 2025. If, ultimately, the two countries agree that the treaty is liable to modification, then Pakistan will be called upon to protect its interests in any Protocol added to the IWT following the modifications agreed upon. I believe there are at least four areas where Pakistan is advised to protect its interest via the Protocol:

i. In order to make the IWT a multilateral water-sharing arrangement, China should be invited to become a party. Both China and India being upper and lower riparians in the region have many disputes inter se. It would be a strategic decision by both to enter into a formal water-sharing arrangement. Such a partnership is not altogether fanciful; its foundations have already been laid in the Shanghai Cooperation Organisation and related treaties. India, Pakistan and China are members of the SCO.

There are at least four areas where Pakistan is advised to protect its interests via any Protocol to the treaty.

Article 3 of the SCO Charter identifies areas of cooperation among the member states. Article 3 includes “sound environmental management, including water resources management in the region, and implementation of particular joint environmental programmes and projects”. Article 3 additionally provides for expansion of the spheres of cooperation by mutual agreement. If a multilateral arrangement is agreed to in the shape of a Protocol to the IWT, all three countries will benefit and it will help lessen tensions.

China’s case for becoming a party to any future Protocol to the IWT is supported by precedents of various major rivers in the world. For example, the Mekong is a transboundary river and all countries sharing it are parties to the 1995 Framework Agreement for sustainable development and management of the river basin. The Mekong River Commission manages the obligations under the said agreement.

Similarly, the Nile River Basin Cooperative Framework 2010 is executed by states that share the river. It also established the Nile River Basin Commission that develops the river in a cooperative manner.

In Europe, the Danube is shared by 14 countries, which have formed an international commission through a convention in 1994. Given that the Indus originates from Tibet, China, it creates a just cause to consider China becoming a party to any new arrangement under the IWT. In any case, India itself has created a locus standi for China through its own doing vide the presidential order of Aug 5, 2019.

ii. Clause 8 of Annexure D to the IWT lays down the criteria which India has to observe while designing any dam on the western rivers. Clause 9 further requires India to inform Pakistan six months before starting any construction on a dam to allow Pakistan to assess whether or not the provisions of Clause 8 have been duly followed by India. In fact, notwithstanding the provisions of Article VII (2) of the IWT, India’s decision to construct a dam (apart from the matter of its design) is taken outside the purview of the IWT regime and is based wholly on India’s arbitrary assessment of its energy needs and strategic interests.

In the above scenario, Pakistan may only object to the technical specifications under the provisions of Annex-D but cannot challenge the necessity or soundness of the decision of the upper riparian state to construct a particular dam. In order to restrain the abusive and arbitrary use of power to construct as many dams as it likes, it is necessary to provide a judicial mechanism in the shape of the International Court of Justice or Court of Arbitration, where the decision of constructing a dam itself may be challenged as unnecessary or mala fide. In this view, three years’ notice to Pakistan to protect its interests is also called upon after a political decision to construct a dam has been taken.

iii. Presently, the IWT does not contain any provision envisaging the management of climate change. The IWT in its present form relies on historical data in order to ensure that water supplies remain consistent. However, this is no longer safe on account of climate change. It is recommended that the IWT reflect the need to establish mechanisms to quantify and collect data regarding climate change, while also strengthening existing data collection. Therefore, in order to assess changes that are required as a consequence of the impact of climate change, provisions should be introduced for establishing a permanent panel of experts with representation from all parties.

iv. A provision to the effect that India should maintain minimum water flow in the eastern rivers for the lower riparian state needs to be added to the Protocol. In the context of international water law, ‘minimum flow’ refers to the least amount of water that a river needs to continue to flow to satisfy the needs of lower riparian states, including ecological needs.

The writer is a former caretaker law minister.

Published in Dawn, June 13th, 2025