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India’s Notice for Indus Waters Treaty (IWT) Review
Context:
India’s decision to serve a formal notice on August 30, 2024, under Article XII (3) of the Indus Waters Treaty (IWT), reflects its concerns about sustaining its rising domestic water needs.
More on News:
- The notice aims to review and modify the treaty to address India’s specific concerns related to changing demographics, agricultural demands, clean energy development, and the impact of cross-border terrorism in Jammu and Kashmir, which hinders the full use of its treaty rights.
- Article XII permits treaty modifications, but with a challenging threshold: a treaty revision requires a duly ratified agreement between both governments.
- Based on prior arguments from India and Pakistan during the 2013 Kishenganga arbitration, achieving a mutually satisfactory modification seems unlikely.
Indus Waters Treaty (IWT)
It is a significant water-sharing agreement between India and Pakistan, signed on September 19, 1960, in Karachi. This treaty was brokered by the World Bank to manage the waters of the Indus River and its tributaries, which are crucial for both countries’ agriculture and economy.
Key Provisions of the Treaty:
- Division of Rivers: The treaty allocates control over six rivers in the Indus basin:
- Eastern Rivers (controlled by India): Ravi, Beas, and Sutlej.
- Western Rivers (controlled by Pakistan): Indus, Chenab, and Jhelum.
- India has unrestricted access to the waters of the Eastern Rivers, while Pakistan has rights over the Western Rivers. India can use water from the Western Rivers for limited agricultural purposes and non-consumptive uses like hydroelectric power generation.
- Permanent Indus Commission: The treaty established a Permanent Indus Commission (PIC) to facilitate cooperation and resolve disputes regarding water sharing. Each country appoints a commissioner to oversee compliance with the treaty’s provisions.
- Financial Contributions: India agreed to contribute financially to help Pakistan develop its irrigation infrastructure from the Western Rivers. This included a fixed payment towards constructing new headworks and canal systems.
Divergent Approaches:
- As an upper riparian, India views optimal utilisation as the purpose of the IWT, contrasting with Pakistan’s lower riparian perspective, which emphasises uninterrupted water flow.
- These differing interpretations of the IWT’s purpose have led to frequent claims and counterclaims regarding water usage.
- The Permanent Court of Arbitration (PCA) at The Hague rejected Pakistan’s ecological harm concerns under Article IV (6) and permitted India to build hydropower projects on the Kishanganga, with a caveat that India maintain a minimum flow of nine cubic metres per second.
- India has 33 hydro-power projects either under construction or planned along the western tributaries.
- While the IWT allows hydro-power generation on western rivers, maintaining this minimum flow is crucial.
Challenges in Managing Resources:
- Achieving optimal utilisation and maintaining minimum flow requires improved management of the entire Indus Water Basin.
- However, the current IWT structure, which divides the basin into eastern and western waters, limits these efforts.
- India holds proprietary rights to the eastern rivers (Ravi, Sutlej, and Beas, per Article II), while Pakistan has rights to the western rivers (Indus, Jhelum, and Chenab, per Article III).
- This separation, shaped by historical circumstances at Partition, disrupted the hydrological relationships between the rivers and their tributaries, complicating integrated water resource management and reducing cooperation.
- While the IWT does not explicitly include a “no harm” rule, this customary international law principle still binds both countries, requiring them to prevent harm when undertaking hydropower projects with potential transboundary impacts.
- The International Court of Justice (ICJ) in the Pulp Mills case (2010) stressed the importance of transboundary environmental impact assessments (EIAs) for such projects, although it did not outline the core components of a satisfactory EIA.
Equitable and Reasonable Utilisation (ERU):
- The ERU principle under Article 5, along with the factors in Article 6 of the 1997 UN Watercourses Convention, could guide India and Pakistan in navigating unforeseen challenges, including climate-induced changes like glacial depletion, which could reduce the Indus’s flow by 30%-40%.
- The review proposal could also consider Article VII.1c, which allows for cooperative engineering projects if both parties agree. Jointly designed and managed projects could help mitigate climate-related water variability.
Suggestions:
- Given the low trust between India and Pakistan, renegotiating the treaty could be challenging.
- An alternative might be to use the IWT’s formal negotiation mechanisms to establish a memorandum of understanding or other cooperative avenues.
- This approach would address emerging issues within the existing treaty framework, enabling both nations to collaboratively manage basin development.
