The Indus Waters Treaty: Correcting the record, preserving the law

On May 9, 2026,Malay Mailpublished atwo-part articleby former Indian Commissioner for Indus Waters P.K. Saxena, titled“Indus Waters Treaty: Asymmetric obligations, unequal concessions and Pakistan’s weaponisation”.

The article tried to do more than criticise Pakistan. It sought to recast the Indus Waters Treaty as a historical injustice to India, to portray Pakistan’s use of Treaty procedures as obstruction,. to defend India’s decision to hold the Treaty in “abeyance” as a legitimate correction of an allegedly unequal bargain.

When such an argument enters the public domain, it carries institutional weight even when formally described as personal opinion. For that reason, the record should be corrected carefully, professionally and firmly from Pakistan’s side.

Water treaties survive because facts are kept straight, obligations are not blurred,. unilateral narratives are not allowed to harden into public assumptions. If a former Treaty official presents safeguards as unfairness, dispute settlement as weaponisation,. unilateral suspension as a right decision, silence would risk normalising a view that is legally unsound and strategically dangerous. The Indus Waters Treaty is too important to be left to grievance writing.

Saxena begins with a true fact and then draws the wrong conclusion. India is the upper riparian on the western rivers before they enter Pakistan,. Pakistan’s agricultural heartland depends critically on reliable flows. But that is precisely why the Treaty exists. It was not born out of Indian generosity. It was born out of the acute vulnerability created by Partition. the April 1948 canal-water crisis, when East (Indian) Punjab stopped supplies to West (Pakistani) Punjab after expiry of the temporary arrangement. That episode deprived areas of Pakistan of water at a critical agricultural moment. left a lasting fear that upstream control could be used to decide downstream survival.

The Treaty replaced upstream discretion with legal obligation. The Inter-Dominion arrangement of May 4. 1948, recorded a live dispute over East Punjab’s supply of canal waters to West Punjab. The later Treaty superseded that temporary arrangement and fixed a durable settlement. Its purpose was not sentiment. It was certainty.

The same correction is needed for the World Bank’s 1954 proposal. Saxena lists elements of that proposal — no Chenab waters at Marala for India, the non-diversion of about 6 million acre feet (MAF) from the Chenab, abandonment of some planned upper-reach developments. no water development in Kutch from the system — as if they prove that India was punished for cooperation.

In reality, they prove something else: the Bank’s central idea was mutual independence. Historic withdrawals had to continue, although not necessarily from existing sources,. each country had to control the works supplying its allocated waters. In practical terms. the settlement had to avoid a situation in which Pakistan remained dependent on Indian-controlled works for the water feeding its fields.

Pakistan’s caution between 1954 and 1958 was not a strategy of delay for delay’s sake. Pakistan was being asked to give up historic reliance on the eastern rivers. It therefore had to know whether the western rivers, supported by replacement works. storage, could actually sustain the canals and command areas that had depended on Ravi, Beas and Sutlej supplies. A paper allocation that left fields dry would not have been a settlement. It would have been an engineering and human disaster. Insistence on replacement works was not obstruction. It was the basic condition for making the Treaty work.

Saxena’s most striking claim is. Pakistan “controls” roughly 80 per cent of the system while India received only about 20pc. This is hydrological arithmetic used as political rhetoric. Pakistan does not physically control the western rivers before they enter Pakistan. India is upstream on substantial stretches of those rivers. Article III of the Treaty therefore requires India to let flow the waters of the western rivers. not interfere with them except for the limited uses expressly permitted by the Treaty. Pakistan is the downstream recipient of a legal entitlement; it is not the upstream controller of the rivers.

It is to be understood that the real bargain was not charitable. nor merely volumetric, it was a quid pro quo. Pakistan placed the Treaty before the Permanent Court of Arbitration as a settlement of three linked bargains:

Though India did not participate in the Court’s proceedings, at the Permanent Indus Commission. in Baglihar Neutral Expert’s proceedings held in 2005-06, India resisted that framing, relying instead on the preamble’s language of “most complete and satisfactory utilisation” and on the optimum development of the rivers, while arguing that Pakistan’s fear of weaponisation was unfounded and that the Treaty was not designed to ensure that India could never diminish flows to Pakistan.

The Court’s answer. after considering India’s position available on record, was not to read the preamble as a charter for maximum unilateral development by India, or by either party. It held that complete. satisfactory utilisation is achieved through a stable, final and cooperative delimitation of the parties’ respective rights and obligations.

That is why the western rivers cannot be described as waters over. India merely formalised access while they passed through territory administered by it. India obtained legal finality over the eastern rivers after the transition period; Pakistan obtained legally protected access to the western rivers, not as an absolute entitlement to exclude every Indian use, but through India’s obligation to let flow. not interfere except for Treaty-specified uses.

The Court stated that, although the Treaty is not a boundary treaty, it has an objective akin in significance. permanence to a boundary treaty because it stabilises the parties’ rights along their frontier in respect of a shared natural resource. It then determined that the object. purpose of the Treaty is not merely to allocate the eastern rivers to India and the western rivers to Pakistan for “complete and satisfactory utilisation”, but also to delimit in considerable detail the obligations of upstream India on the western rivers so as to ensure Pakistan’s safe and continual access to those waters — the outcome Pakistan framed as the Hydro Bargain.

Thus, India may generate hydro-electric power on the western rivers, but only through Treaty-conforming projects. within the limits fixed by Article III and Annexure D; those limits are to be strictly construed, though not so strictly as to deny India the capacity to generate hydro-electric power from projects built in conformity with the Treaty.

The financial argument is also distorted. Saxena says India paid around 62 million pounds to support infrastructure in Azad Jammu. Kashmir and, in effect, paid to give away water. Article V says otherwise. India’s fixed contribution was made because Pakistan had to construct replacement works to replace, from the western rivers. other sources, irrigation supplies in Pakistan that on August 14, 1947, had depended on the eastern Rrivers. The money went into the Indus Basin Development Fund administered by the World Bank. The Treaty also states. the contribution did not give India any right to participate in Pakistan’s decisions regarding those works.

The 62 million pounds were therefore not charity, not compensation for Pakistan,. not payment for infrastructure in Azad Jammu and Kashmir and Pakistan. They were part of the settlement price of a bargain from which India benefited: the eastern rivers became available to India for unrestricted use after transition. while Pakistan bore the burden of rebuilding a vast irrigation system. The replacement works — including major dams, barrages, a siphon and inter-river link canals —were not symbolic. They were the physical foundation without which the Treaty could not have been implemented.

Saxena complains that the Treaty imposes one-directional restrictions on India. In one sense, it does. In law and in engineering, that is the point. India is upstream on the western rivers. A downstream state cannot manipulate upstream flows in the same way an upstream state can affect downstream flows. Restrictions on storage, pondage, outlets, spillways, intakes and operations are therefore not punishments. They are the safeguards that make downstream entitlement real.

Nor is it correct that Pakistan accepted no obligations. Pakistan surrendered historic dependence on the eastern rivers, undertook the replacement programme, accepted the end of any post-transition right to releases from the eastern rivers,. remains subject to Treaty obligations on data, cooperation and specified reaches and tributaries. Article VI on exchange of data, Article VII on future cooperation. Article VIII on the Permanent Indus Commission are not ornamental provisions. They are part of the bargain for both sides.

This is why the charge of obstructing hydropower must be treated with care. Pakistan does not say India can never build on the western rivers. The Treaty itself permits run-of-river hydropower.

But a project is not lawful merely because it is labelled run-of-river. It must comply with Annexure D. Low-level outlets, gated spillways, submerged intakes, pondage, freeboard and operating rules are not technical trivia. They determine how much control an upstream operator can exercise over the timing, volume and reliability of downstream flows. Nor does Pakistan lose the right to object because a project might, in some circumstances, offer regulated-flow or flood-moderation benefits. A project may have possible benefits and still fail the Treaty test.

The August 8 2025 Award on General Issues andMay 15 2026 Supplemental Award on Pondageare directly relevant here. These awards addressed general questions concerning Annexure D and made clear that the Treaty constraints come first. Contemporary engineering practice cannot override the Treaty.

A design is not lawful. it is optimal for India; it must be the design practically achievable within the constraints India accepted. The Court also clarified issues concerning low-level outlets, gated spillways, turbine intakes, pondage and freeboard. That alone defeats the claim that Pakistan’s objections are merely political devices.

Saxena relies on Baglihar, Kishenganga, Pakal Dul and Tulbul as examples of systematic obstruction. The more accurate conclusion is that these projects raised real Treaty questions. Baglihar cannot be converted into a general license for all future Indian projects. The Court has rejected that approach, holding that a neutral expert’s determination is binding only for the particular matter decided. is not a standing precedent for every future hydropower design on the western rivers.

Equally, Pakistan’s use of Article IX cannot be called weaponisation without attacking the Treaty itself. Article IX was drafted because the parties knew that questions, differences and disputes would arise. The Court’s July 6 2023 Award on Competence rejected India’s objections. confirmed that the Court was competent to hear the disputes placed before it. India’s non-participation does not make Pakistan’s recourse unlawful. It makes the Court’s careful scrutiny of the record even more important —. the Court has recorded that it took steps to understand India’s positions from the available material.

Saxena says Pakistan raises a “water aggressor” narrative against an India that has scrupulously complied for decades. Even if India complied during the 1965 war, the 1971 war. the Kargil conflict, that was performance of a binding obligation, not a credit that can later be spent to suspend the Treaty.

The facts since April 2025 make the accusation against Pakistan impossible to accept at face value. India announced that the Treatywould be held “in abeyance”.Pakistanrepliedthat “abeyance” has no legal meaning in the Treaty, that Article XII(4) keeps the Treaty in force until terminated by a duly ratified treaty between the two governments,. that baseless terrorism allegations, which Pakistan rejects, cannot be used to suspend a water-sharing treaty outside the Treaty framework.

The Court’s Supplemental Award of June 27 2025 supports the essential legal point. The Treaty contains no unilateral power of abeyance or suspension.

Article XII(4) reflects the intention that the Treaty continues in force unless terminated by mutual treaty. The Court also held that India’s abeyance position could not affect the Court’s continuing competence. That conclusion matters. it rejects the idea that a party can escape Treaty procedures by announcing a unilateral political position after dispute settlement is already underway.

The human-rights dimension is not rhetoric. The UN Special Procedures communication dated October 16 2025. made public in December 2025 recorded that the Indus rivers irrigate about 18 million hectares of farmland in Pakistan, around 80pc of its arable land, and contribute substantially to Pakistan’s economy. It warned that disruption through pondage filling, reservoir operation, gate releases or sediment releases could affect rights to water, food, livelihood, work, environment. development. Water should not be used as a means of political pressure. That is not Pakistan’s propaganda; it is a sober human-rights concern.

Recent correspondence reinforces why the Treaty machinery is essential. In May 2025. Pakistan raised serious concerns over abnormal Chenab flows at Marala, including a peak of 78,276 cusecs followed by a decline to 1,527 cusecs, with insignificant rainfall indicated by available records.

Similarly, Pakistan wrote to India again in December 2025 when pronounced. abrupt variations were observed in the Chenab River at Marala, with flow dropping as low as 870 cusec. In May 2026, Pakistan once again wrote about abrupt variations at Chakothi on the Jhelum. Marala on the Chenab, including a fall at Marala from 21,887 cusecs to 5,689 cusecs within the event window.

Pakistan sought explanations, operational data and inspections. These are not theatrical objections. They are the requests a downstream Commissioner must make when sudden variations affect barrage. canal management and when Treaty compliance has to be verified. With these recent developments. includingIndia’s announcementof the diversion of Chenab into Beas, India’s argument that Pakistan’s fear of weaponisation was unfounded is now far from hypothetical.

The same is true for project information. When reports appeared regarding Dulhasti Stage-II, Pakistan did not reject development in principle; it asked for formal Treaty notification, design particulars, pondage. operational data, and consultations. When reports emerged about Sawalkot, Pakistan asked for information and latest status. When the NHPC issued a tender concerning making the Salal dam undersluices operational, Pakistan invoked both the Treaty. the 1978 Salal Agreement, which required the outlet works to be permanently closed with concrete plugs except under tightly defined conditions and consultation. Requests for data, inspection and consultation are the opposite of obstruction. They are Treaty implementation.

Saxena’s development argument is also overstated. He says Rajasthan. parts of Punjab remained arid and that Indian Illegally Occupied Jammu and Kashmir’s (IIOJK) hydropower potential was suppressed.

But India received unrestricted use of the eastern rivers and retains defined rights on the western rivers. The Treaty does not ban development in IIOJK. It regulates it because India is upstream and Pakistan is downstream. If development is delayed because designs seek more storage. control or operational discretion than the Treaty permits, the problem is not Pakistan’s objection. The problem is the design.

Nor does the clean-energy argument alter the law. Renewable energy is important, but it cannot erase Treaty limits. The Treaty already permits hydropower. It simply requires India to build and operate projects within agreed safeguards. Energy security cannot be achieved by converting a run-of-river exception into an upstream storage entitlement.

The renegotiation correspondence further weakens the claim that Pakistan refused engagement. India issued notices in 2023. 2024 seeking review and modification under Article XII(3), later adding grounds such as demographics, clean energy, security and transitional provisions. Pakistan repeatedly said it was open to hearing India’s concerns, asked India to identify those concerns clearly,. emphasised that the Permanent Indus Commission was the proper initial forum for technical and Treaty-related engagement. Pakistan also made clear. openness to hear India could not be treated as automatic commencement of modification negotiations without a shared understanding of the grounds. It is legal discipline, not an evasion.

The terrorism allegations are the most dangerous part of Saxena’s thesis. He invokes such allegations to argue that goodwill between Pakistan and India no longer exists. Pakistan has condemned terrorism and has rejected India’s allegations and their attempted linkage to a water treaty.

The preamble’s reference to goodwill and friendship is not a termination clause. If India believes a Treaty breach exists, Article IX gives it a mechanism. If it wants modification, Article XII(3) provides the route via a duly ratified treaty concluded by both governments. What India cannot do is convert unrelated security allegations into a unilateral license to suspend water obligations. Calling abeyance “the right decision” does not create a legal power. Treaties are made precisely so that obligations survive political crises.

The Treaty has endured wars and crises because it is structured as law, not charity. It does not assume friendship. It creates obligations despite mistrust. It does not prohibit India from development. It regulates development where India has upstream control and Pakistan bears downstream risk. It gives Pakistan legal protection against interference with rivers on which its people depend.

That is the difference Saxena’s article misses. If every Treaty safeguard is described as unfairness, every Pakistani objection as obstruction, every arbitral proceeding as weaponisation,. every unilateral Indian step as legitimate self-correction, then law is replaced by upstream discretion. That is exactly what the Treaty was designed to avoid.

The Indus Waters Treaty was not an Indian subsidy to Pakistan. It was a settlement of competing rights and existential vulnerabilities. Pakistan’s position is therefore straightforward: honour the Treaty, share the data, allow inspections, resolve questions through the commission. Article IX, and build only what the Treaty permits. That is not weaponisation. It is the rule of law.

The writer is Pakistan Commissioner for Indus Waters. a professional hydrologist with hands-on experience of public policy and implementation of the Indus Waters Treaty.

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