INDUS WATER TREATY - INTERNATIONAL

News: India sends notice to Pakistan to amend 1960 Indus Water Treaty

 

What is in the news?

       India announced that it wants to modify the 62-year-old Indus Water Treaty (IWT) with Pakistan, citing what it called Pakistan’s “intransigence” in resolving disputes over the Kishenganga and Ratle hydropower projects, both in Jammu and Kashmir.

 

Indus Water Treaty:

       The Indus Waters Treaty is a water-distribution treaty between India and Pakistan, brokered by the World Bank signed in Karachi in 1960.

       According to this agreement, control over the water flowing in three “eastern” rivers of India - the Beas, the Ravi and the Sutlej was given to India

       The control over the water flowing in three “western” rivers of India - the Indus, the Chenab and the Jhelum was given to Pakistan.

       The treaty gives India 20% of the water from the Indus River System and the rest 80% to Pakistan.

       Uses of Western Rivers by India:

       The treaty allows India to utilize the waters of western rivers for limited irrigation use and non-consumptive use for such applications as power generation, navigation etc. Thus, India can generate hydroelectricity through run-of-the-river projects (without the storage of waters) on the western rivers, subject to specific criteria for design and operation.

       The treaty allowed India to have a minimum storage level on the western rivers - meaning it can store up to 3.75 MAF of water for conservation and flood storage purposes.

       A Permanent Indus Commission was set up by the United Nations for resolving any disputes that may arise in water sharing.

 

Significance:

1. Treaty crucial for the peace and development:

       The Treaty has been a profoundly important international agreement in support of peace and development for South Asia and has been hailed as one of the most successful transboundary water management treaties in the world.

 

2. Dispute Resolution Process:

       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.

       Consulting a World Bank-appointed neutral expert.

       Setting up a court process to adjudicate the case through the World Bank and the Permanent Court of Arbitrage (PCA).

       India has held that each step must be fully exhausted before both sides agree to moving on to the next step, Pakistan had moved on without waiting for India’s concurrence.

 

Reasons behind calls for renegotiating of the Indus Water Treaty:

1. Unequal sharing of water:

       Pakistan has been allocated ~ 80% of the Indus basin waters.

       Experts have termed this the most generous water sharing treaty. It is the only water-sharing pact in the world that compels the upper riparian State to defer to the interests of the downstream State.

2. India's genuine infrastructure concerns:

       It prevents India from building any storage systems on the western rivers.

       Even though the treaty lays out that under certain exceptional circumstances storage systems can be built, Pakistan deliberately stops any such effort.

       The extensively technical nature of the treaty allows Pakistan to stall legitimate Indian projects.

3. Issues of climate change:

       The basin’s size and volume is getting altered by climate change and this alteration is going to intensify in future.

       There would be instances of more high-intensity rainfall as well as long stretches of scanty rainfall. There would be a high influx of water due to glacial melt.

       The contribution of glaciers in the Indus basin is higher than in the Ganges or Brahmaputra basins.

       A change in the flow conditions may classify as ‘change of circumstances’ which can justify renegotiation or termination in the future.

4. Standing Committee on Water Resources 12th report recommendations:

       The Government of India should renegotiate the Indus Water Treaty of 1960 with Pakistan in the light of present-day challenges such as climate change, global warming and environmental impact assessment.

       There is a need 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.

       It also recommended that the canal systems in Punjab and Rajasthan be repaired to increase their water carrying capacity.

 

India's Problem:

1. Unilateral decision of Pakistan:

       India also protested Pakistan’s “unilateral” decision to approach a court of arbitration at The Hague.

2. Renegotiation of Indus Water Treaty:

       India is calling for modifications to the treaty as per Article XII (3) of the IWT that deals with the “final provisions” of the treaty.

       The decision to issue notice to Pakistan, with a request for a response within 90 days, is a major step and could lead to the unraveling and renegotiation of the water sharing treaty.

       In October 2022, the World Bank had appointed neutral expert Michael Lino, and another expert Sean Murphy, as Chairman of the Court of Arbitration, and convened meetings with Indian and Pakistani officials in November to “handover” the process.

 

Pakistan's Problem:

       Pakistan approaches the Permanent Court of Arbitrage at The Hague over two hydropower projects in Jammu & Kashmir; Indian officials say Pakistan stance is against the agreed mode of dispute resolution.

 

Can the Indus Water Treaty be rejected by India on a unilateral basis?

       Article XII (4) of the Indus Water Treaty notes that, "provisions of this Treat shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.” Thus the treaty doesn’t allow for unilateral termination.

 

       Article 62 of the Vienna Convention on Law of Treaties (VCLT), 1969 provides that even a ‘fundamental change of circumstances that are ‘not foreseen by the parties‘ at the time of conclusion of treaty is not a valid ground for termination of treaty unless certain conditions are fulfilled.

       Legal experts argue that terrorist attacks do not fall under this exception. Although India is not a party to this convention, the Supreme Court of India has recognized the customary status of the Convention. (Pakistan is a signatory, but hasn’t ratified the Convention).

       Thus, unilateral termination will impact India’s international standing as a responsible power that always supports a Rules-based International Order. This will weaken India’s case for permanent representation at the UNSC.

 

       Other issues: Moreover, there are certain other downsides of unilateral termination such as

       India has a water sharing agreement with Bangladesh. Termination of treaty will raise anxiety in Bangladesh and impact bilateral relations.

       China, an ‘all-weather ally’ of Pakistan, will certainly use diversion of Brahmaputra waters to threaten India.

       There is not enough infrastructure to store/divert waters of Western Rivers to starve Pakistan of water.

 

WAY FORWARD:

       India should take steps to completely utilize its entitlement of waters of Western Rivers. The infrastructure to utilize the waters has remained under-developed in J&K.

       Some experts suggest that in case of escalation of hostilities by Pakistan in future, India can suspend the meetings of the Permanent Commission. If the first state of dispute redressal is not functional, the subsequent two steps of 3-tier dispute redressal don’t kick in. Thus India can use this as a pressure tactic on Pakistan.

       India should explore the possibility of using climate change as a ‘change in circumstances’ to initiate conversation on renegotiation of the IWT. This will also put pressure on Pakistan. Last year Pakistan was devastated by the intense rainfall and flash floods.

       Experts in India and Pakistan should assess how much of the waters in the Eastern and Western rivers are snow or rain-fed within their respective territories. Such estimates would add to the accuracy of each side’s dependence on the other in sharing the waters of these rivers.