EDITORIAL ANALYSIS : More than court action, revisit the Indus Waters Treaty

Source: The Hindu

• Prelims: Current events of international importance(India-Pakistan relations, Indus water treaty, Kishanganga Hydel Power Project, LOC, SAARC etc
• Mains GS Paper II: Bilateral, regional and global grouping involving India and affecting India’s interests, India and its neighborhood-relations

ARTICLE HIGHLIGHTS

• The Indus Waters Treaty (1960), or IWT, regulates the Indus water courses between the riparian states of India and Pakistan.
• It is cited by many as an example of cooperation between two unfriendly neighbors for many reasons.

INSIGHTS ON THE ISSUE

Context

India-Pakistan Relations:

• With the partition of British India, two separate nations, India and Pakistan were formed.
• Since the very beginning, the immediate violent partition, wars, terrorist attacks and various territorial disputes overshadowed the connection.

Areas of contention:

Areas of Cooperation:

Indus Water Treaty(IWT):

• IWT is a water-distribution treaty between India and Pakistan, brokered by the World Bank (WB), to use the water available in the Indus River and its tributaries.
• It was signed in Karachi in 1960 by then-Indian PM Jawaharlal Nehru and then-Pakistani president Ayub Khan.
• The Treaty gives control over the waters of the three “eastern rivers” – the Beas, Ravi and Sutlej (BRS)- to India.
• Control over the waters of the three “western rivers” – the Indus, Chenab and Jhelum -has been given to Pakistan.
• India has about 20% of the total water carried by the Indus system while Pakistan has 80%.
• 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.
• India has the right to generate hydroelectricity through run-of-the-river (RoR) projects on the western rivers which, subject to specific criteria for design and operation, is unrestricted.
• The dispute redressal mechanism provided under the IWT is a graded 3-level mechanism.
• Under the IWT, whenever India plans to start a project, it has to inform Pakistan.
• The concerns have to be cleared at the levels of the Indus Commissioners → Neutral Expert → Court of Arbitration, in a graded manner.

Significance:

• IWT has survived several wars and phases of bitter relations
• It lays down detailed procedures and criteria for dispute resolution.

Present Contention:

• Exercising judicial recourse to settle the competing claims and objections.
  • They arise out of the construction and design elements of the run-of-river hydroelectric projects that India is permitted under the IWT to construct on the tributaries of the Indus, Jhelum and Chenab before these rivers flow into Pakistan.
• Pakistan initiated arbitration at the Hague-based Permanent Court of Arbitration to address the interpretation and application of the IWT to certain design elements of two run-of-river hydroelectric projects:
  • On the Kishanganga (a tributary of the Jhelum)
  • Ratle-a hydro-electric project on the Chenab.
• India raised objections as it views that the Court of Arbitration is not competent to consider the questions.
  • Such questions should instead be decided through the neutral expert process.
  • Court unanimously passed a decision (which is binding on both parties without appeal) rejecting each of India’s objections.

Future supply of water:

• Judicial recourse appears to be the only rational strategy by the IWT parties.
• 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 with regard to the future supplies of water to the riparian states.
  • It needs to incorporate mechanisms that allow flexibility to changes in the quantity of water available for allocation among the parties(Paper in Water Policy, the official journal of the World Water Council)

Issues with IWT:

• Bilateral water agreements are “vulnerable to climate change.
  • Most of them include fixed allocation of amounts of water: concluded under the assumption that future water availability will remain the same as today.
• Under the partitioning logic in the IWT vesting of proprietary rights in the eastern rivers to India, and the vesting of proprietary rights in the western rivers to Pakistan, does not take into account future water availability.
• The IWT requires Pakistan that it is under obligation to let flow and shall not permit any interference with the waters of the eastern rivers.
• India is obligated to let all the waters of the western rivers flow.
  • It shall not permit any interference with these waters except for certain uses.
    • which include generation of hydro-electric power on the rivers and tributaries of the western rivers before they flow into Pakistan.
  • With climate change altering the form, intensity and timing of precipitation and runoff.
    • assumption regarding the supplies of water for agricultural purposes and industrial needs does not hold true.
  • The partitioning of the rivers goes against the logic of treating the entire river basin as one unit which is needed to build its resource capacity.

Principles of water course:

• Reconciling the divergent approach can be sought with the help of two cardinal principles of international watercourse law:
  • Equitable and reasonable utilization (ERU)
  • Principle not to cause significant harm or no harm rule (NHR).
• 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: It 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.
  • Including carrying out a transboundary environmental impact assessment.

Article 9 of IWT:

• It offers a graded pathway to address any issue related to the implementation or interpretation of the IWT.
• It provides for the appointment of a neutral expert in case there is a lack of consensus among the Commissioners.
• If the neutral expert believes that the difference should be treated as a dispute, it can be referred to the Court of Arbitration.
• The Commission has to report the facts to the two governments.
• The report must state:
  • Points of concord in the Commission
  • The views of each Commissioner on these issues
  • Mention the issues of disagreement.
• Only after receiving a report can either of the governments address the issue bilaterally or through the Court of Arbitration.

Way Forward

• It is suggested in Article 10 of the 1997 Convention to lean on “vital human needs” in the context of the ERU and the NHR.
  • The inclusion of these principles in the IWT will help in erasing the differences.
• The ERU and NHR are binding on both countries as they are customary international law rules generating the binding obligation to both parties.
  • The inclusion of these principles in the IWT will ensure predictability to a certain extent.
• The World Bank(party to the IWT) may use its forum to forge a transnational alliance of epistemic communities (who share a common interest and knowledge of the use of the Indus waters).
  • To build convergent state policies, resulting in the ultimate inclusion of these two principles in the IWT.
  • Thus, revisiting the IWT is a much needed step.
• The practice of diplomacy and the use of law for explaining and justifying government actions are equally important.
  • The reasoning put forward by India and Pakistan requires scrutiny.
• Article 7 of treaty: It talks about future cooperation — discussing and broadening transboundary governance issues in holistic terms.
  • It could be the starting point for any potential diplomatic handshake.

QUESTION FOR PRACTICE

Increasing cross border terrorist attacks in India and growing interference in the internal affairs of several member states by Pakistan are not conducive for the future of SAARC (South Asian Association For Regional Cooperation).” Explain with suitable examples.(UPSC 2016) (200 WORDS, 10 MARKS)