More Than Court Action, Revisit the Indus Water Treaty

Why in News?

• In January this year, Pakistan ‘unilaterally’ initiated arbitration at the Hague-based Permanent Court of Arbitration (PCA) to address the interpretation and application of the Indus Waters Treaty(IWT).
• India raised objections as it views that the Court of Arbitration is not competent to consider the questions put to it by Pakistan and that such questions should instead be decided through the neutral expert process.

 

Indus Water Treaty (IWT)

• IWT was signed in 1960 between India and Pakistan and was brokered by the World Bank, which too is a signatory to the treaty.
• The treaty fixed the rights and obligations of both countries concerning the use of the waters of the Indus River system.
• It gives control over the waters of the three ‘eastern rivers’ -the Beas, Ravi, and Sutlej - to India, while control over the waters of the three ‘western rivers’ -the Indus, Chenab, and Jhelum - to Pakistan.
• The treaty allows India to use the western river waters for limited irrigation use and unlimited non-consumptive use for such applications as power generation, navigation, fish culture, etc.
• It lays down detailed regulations for India in building projects over the western rivers.

 

A Background of Conflict over IWT

• Indian Decision to Modify IWT
  • In January, India announced the desire to modify the 62-year-old IWT with Pakistan, citing what it called Pakistan's unwillingness to find a solution to disputes over the Kishanganga and Ratle hydropower projects, both in J&K.
  • Two hydroelectric power projects, one on the Kishanganga river (a tributary of the Jhelum), and the other on the Chenab (Ratle), have been the subject of a prolonged controversy.
  • India called for modifications to the treaty as per Article XII (3) of the IWT which specify that provisions of the treaty may from time to time be modified for any specific purpose between the two Governments.
  • The notice comes as a result of Pakistan's continuous inaction in enforcing the IWT by repeatedly objecting to the development of hydroelectric projects on the Indian side.

• Pakistan’s Decision to Approach Arbitration Court: Pakistan initiated arbitration at the PCA to address the interpretation and application of the IWT to certain design elements of two run-of-river hydroelectric projects.
• India’s Objection to Arbitration
  • India protested Pakistan’s “unilateral” decision to approach a court of arbitration at The Hague in the Netherlands.
  • India raised objections as it views that the Court of Arbitration is not competent to consider the questions put to it by Pakistan and that such questions should instead be decided through the neutral expert process.

 

The Current Status of Pakistan Initiated Arbitration

• The court determined that it is competent to consider and determine the disputes set forth in Pakistan’s request for arbitration.
• On July 6, 2023, the court unanimously passed a decision (which is binding on both parties without appeal) rejecting each of India’s objections.

 

Can The Arbitration Ensure the Future of Supply of Water?

• IWT provides only some element of predictability
  • In an atmosphere of a lack of trust, judicial recourse appears to be the only rational strategy by the IWT parties.
  • But it is not likely to address the rapidly growing industrial needs of the two countries, apart from food and energy needs.
  • The IWT provides only some element of predictability and certainty regarding the future supplies of water to the riparian states.
  • IWT needs to incorporate mechanisms that allow flexibility to changes in the quantity of water available for allocation among the parties.
• Water availability could be affected by climate change
  • Bilateral water agreements are vulnerable to climate change as most of them include fixed allocation of amounts of water use that are concluded under the assumption that future water availability will remain the same as today.
  • The partitioning logic in the IWT does not take into account future water availability.
  • With climate change altering the form, intensity and timing of precipitation and runoff, this assumptions regarding the supplies of water for different needs does not hold true.

 

Way Forward

Reconciling Divergent Approach of India and Pakistan on IWT

• The thrust of the IWT is optimal use of the waters which India believes to be the purpose of the IWT as opposed to Pakistan’s understanding to be the uninterrupted flow of water to its side. 
• This divergent approach can be sought with the help of two cardinal principles of international water courses - Equitable, and reasonable utilisation (ERU) and the principle not to cause significant harm or no harm rule (NHR).
• Although there is no universal definition of what ERU amounts to, the states need to be guided by the factors mentioned in Article 6 of the Convention on the Law of the Non-navigational Uses of International Watercourses 1997, including climate change.
• The NHR is a due diligence obligation which requires a riparian state undertaking a project on a shared watercourse having potential transboundary effect to take all appropriate measures relating to the prevention of harm to another riparian state.
• Even without its inclusion in the IWT, the ERU and NHR are binding on both countries as they are customary international law rule generating the binding obligation to both parties.
• But the inclusion of these principles in the IWT will ensure predictability to a certain extent.

More Than Court Action, Revisit the IWT

• The IWT is cited by many as an example of cooperation between two unfriendly neighbours for many reasons.
• These include the IWT having survived several wars and phases of bitter relations, and it’s laying down of detailed procedures and criteria for dispute resolution.
• In an atmosphere of a lack of trust between the two neighbours, the World Bank, a party to the IWT, may use its forum to forge a transnational alliance of epistemic communities (who share a common interest and knowledge to the use of the Indus waters).
• This will help in building convergent state policies, resulting in the ultimate inclusion of these two principles in the IWT. Thus, revisiting the IWT is a much-needed step.

 

Conclusion

• The two countries should use bilateral dispute settlement mechanisms to discuss the sustainable uses of water resources.
• Given the broad contours of the IWT - particularly Article 7 that talks about future cooperation - discussing and broadening transboundary governance issues in holistic terms could be the starting point for any dialogue regarding water disputes.

 

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Q) Why Does India Want to Modify the IWT?

Under Article 60 of the Vienna Convention on the Laws of the Treaties, a party can criticise an agreement and give notice of its intention to terminate it if the other party violates its fundamental provisions. India has adopted the moderate approach of not terminating but modifying the IWT. India claims that Islamabad has violated the dispute settlement mechanisms, as mandated by Articles 8 and 9 of the Treaty.

 

Q) What is the Indus Water Treaty’s dispute redressal mechanism?

According to Article IX of the treaty that deals with the “Settlement of Differences and Disputes”, there are three possible steps to decide on objections raised by either side: working within the “Permanent Indus Commission” (PIC) of the Indian and Pakistani delegation of water experts that meet regularly; consulting a World Bank-appointed neutral expert: or setting up a court process to adjudicate the case through the World Bank and the Permanent Court of Arbitrage (PCA).