Renegotiate Indus treaty to optimise water use
A long-awaited yet unprecedented development finally took shape with India sending a notice to Pakistan for modification of the 1960 Indus Waters Treaty (IWT). This treaty has weathered various twists and turns in bilateral relations, three wars and multiple terror attacks from launch pads in Pakistan, including the attack on Parliament (2001) and the incidents in Uri (2016) and Pulwama (2019).
Article XII (3) of the IWT provides that this “treaty may from time to time be modified by a duly ratified treaty concluded between the two governments.”
The IWT is a unique experiment in hydro diplomacy and treaty law. The Karachi treaty was signed on September 19, 1960, by the then Prime Minister of India and the President of Pakistan. The IWT has a preamble, 12 Articles and eight detailed Annexures (A to H). It features the World Bank as a third party and guarantor.
“The Indus Waters Treaty was a great achievement of Pakistan and India and of the World Bank, and it remains so,” said Judge Stephen M Schwebel, Chairman of the seven-member Court of Arbitration that delivered the final award in the Kishenganga arbitration case on December 20, 2013.
India’s notice is a tactical step for modification of the IWT. As an instrumentality of international law, the IWT is a global model for shared transboundary water resources’ governance. The IWT provides India unrestricted access to the eastern rivers (Sutlej, Beas and Ravi), while the water of the western rivers (Indus, Jhelum and Chenab) can be used in a non-consumptive manner for agriculture and generation of hydroelectric power. However, India does not fully utilise all accessible water of the eastern rivers and the irrigation and hydropower potential of the western rivers.
The growing number of disputes raised by Pakistan on the Tulbul project, Baglihar Dam and the Kishenganga hydroelectric project have affected the spirit of the IWT. How to tame Pakistani discontent remains a challenge. It makes resolution through negotiations difficult and the Permanent Indus Commission (Article VIII) remains stranded. A ‘difference’ or a ‘dispute’ is left to a neutral expert or expensive international arbitration. All major projects suggested by India became a bone of contention. The pressures of a growing population and developmental needs have been exacerbated by the shrinking water availability in the Indus river basin due to climatic change.
In the changed circumstances, the use of cutting-edge technology such as remote-sensing satellites, geographical information system and artificial intelligence could play an important role in the planning, construction and maintenance of large hydropower projects.
The 2021 report of the Standing Committee on Water Resources suggested, “There is a need to renegotiate the treaty so as to establish some kind of institutional structure or legislative framework to address the impact of climate change on water availability in the Indus basin and other challenges which are not covered under the treaty.” Hence, the committee recommended that the Indian government should take necessary diplomatic measures to renegotiate the treaty with Pakistan. In 2016, the Pakistani senate passed a resolution that suggested a ‘revisit’ of the IWT. However, after a formal notice by India, Pakistan’s sharp response is on expected lines.
The indicators of climate change seem to be quite visible in the Indus basin. The receding glaciers, scanty snowfall, the changing land system patterns and the increasing demand for water to meet irrigation, industrial and domestic needs — all appear to impact water availability in the Indus basin. This harsh reality due to climatic change has now set the stage for India raising the issue with Pakistan to reach an understanding on common hydrological resources. Climate change is now considered the most potent threat to the sustainability of global water resources.
There have been calls for renegotiation of the IWT on the ground that the treaty “does not reflect all of the main and future challenges” such as climate change, population growth, environmental flow needs, transboundary aquifer management, and the growing water needs in the Indus basin. This would necessitate the adoption of a benefit-sharing approach instead of an engineering river-dividing approach so that water management can deliver mutual benefits.
Since there is no provision in the IWT for unilateral withdrawal by a party, reneging from the treaty commitment could be only on the ground of a ‘fundamental change of circumstances’, as provided in Article 62 of the 1969 Vienna Convention on the Law of Treaties (VCLT). The IWT was crafted before the advent of the VCLT. Since the VCLT contains the time-tested principle of customary law, it can still be applicable to the IWT. However, the threshold laid down in Article 62 is tough for any of the parties to meet.
In order to harness the hydropower potential of the shared water courses in the Indus basin, both countries need to consider a joint design and implementation of hydroelectric power projects. It requires taking a holistic hydrological view and maintaining the environmental integrity of the entire Indus basin without compromising the developmental needs of the riparian states.
Taking the IWT forward would require political sagacity and sensitivity towards the legacy of shared waters by jettisoning misplaced animosity. The current chill in bilateral relations makes immediate modification of the IWT difficult. The beleaguered Pakistani establishment is expected to remain recalcitrant by resorting to legalese to sidestep the laudable Indian initiative.
