India’s move to serve formal notice on August 30, 2024, in line with Article XII (3) of the Indus Waters Treaty (IWT), underlines its concerns about meeting ever-increasing domestic water needs in a sustainable manner. The notice is to review and modify the treaty to address India’s specific concerns relating to altered population demographics, along with agricultural and other uses apart from the need to accelerate the development of clean energy to meet India’s emission rights. India has also mentioned in the notice that the impact of persistent cross-border terrorism in Jammu and Kashmir is impeding smooth operations of the Treaty, undermining the full utilisation of its rights in the Indus.
Article XII, which allows modification in the treaty from time to time, lays down a very high threshold: ‘a duly ratified treaty concluded for that purpose between the two Governments’. If one goes by the plea made by India and Pakistan during the Kishenganga arbitral award 2013, it appears unlikely that Pakistan and India will reach a modification formula that is to their satisfaction.
Divergent approaches
India, as the upper riparian, treats optimal utilisation as the object and the purpose of the IWT. This is opposed to Pakistan’s (the lower riparian) understanding of uninterrupted flow to its side. This divergent approach relating to the interpretation of the IWT’s purpose is one of the factors responsible for the claims and counterclaims by India and Pakistan over water use. The Hague based Permanent Court of Arbitration (PCA) did not side with the plea of ecological harm raised by Pakistan under Article IV (6) of the IWT. It allowed India to build hydropower projects on the Kishanganga. But the Tribunal has added a caveat: that India has to maintain a minimum nine cubic metre a second flow. India has 33 hydro-power projects, in either construction or planning phase, along the western tributaries. The use of western rivers for hydro-power generation is permitted under the IWT but the crucial point is about India maintaining minimum flow.
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Challenges in managing resources
Ensuring optimum utilisation and maintaining minimum flow would require better management of the entire Indus Water Basin, resulting in enhanced water resource. Meeting these goals is remote in the given structure of the IWT, which divides the separation of the Indus Basin into eastern and western waters. India has proprietary rights in the eastern rivers (Article II, Ravi, Sutlej and Beas) while Pakistan has proprietary rights in the western rivers (Article III, Indus, Jhelum and Chenab). The idea of partitioning the rivers was driven by historical contingency relating to Partition and the appeal to the Indian and Pakistani leadership as the only rational strategy. The partitioning of the river basin essentially severed hydrological relationships between the rivers and their tributaries, which not only made integrated water resources management elusive but also led to either minimal or no cooperation.
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Although the IWT does not have a provision relating to no harm rule, it still binds both the riparians as the rule is a customary international law. The obligation not to cause significant harm is a due diligence obligation — it amounts to saying that both riparians have to take every appropriate measure to prevent harm while undertaking a hydropower project or projects on the shared water course having a potential transboundary impact. The International Court of Justice (ICJ), in the Pulp Mills on the Uruguay river case (2010) has identified conducting a transboundary environmental impact assessment (EIA) as an essential requirement of customary international law for projects or activities with a potential for transboundary effects. This judgment amounts to saying India and Pakistan will have to undertake EIA if a project has potential transboundary effects. The ICJ did not identify the core components of an adequate EIA.
The Rule relating to equitable and reasonable utilisation (ERU) of international watercourse, which is enshrined in Article 5, and the factors and circumstances for consideration to arrive at an ERU in Article 6 of the 1997 UN Watercourses Convention can guide both the riparians to meet unforeseen circumstances. The ERU may be leaned on to deal with unforeseen effects of climate change such as depletion of glacial reserves which cause a 30%-40% decrease in the Indus’s water flow.
Comment | How the Indus Treaty was signed
The proposal to review should consider the provision in Article VII.1c which explicitly provides that if both the parties are in agreement, they can cooperate in joint engineering projects along the river. Joint projects that are appropriately designed and operated could offer a chance to mitigate water variability that arises from climate change.
Some suggestions
Given the lack of trust between the two parties, renegotiating the treaty to review and make modifications might prove difficult. A suggestion could be using the IWT’s formal negotiation procedures to arrive at a memorandum of understanding and other cooperative avenues that address issues as they arise, while using the treaty as a structure to organise their development of the basin (N. Zawahiri and D. Michel, 2018).
Anwar Sadat teaches international environmental law at the Indian Society of International Law, New Delhi
Published - November 08, 2024 12:08 am IST
