The Indus Waters Treaty (1960), or IWT, that regulates the Indus water courses between the two riparian states of India and Pakistan, is cited by many as an example of cooperation between two unfriendly neighbours for many reasons. These include the IWT having survived several wars and phases of bitter relations, and its laying down of detailed procedures and criteria for dispute resolution.
But in the last decade, exercising judicial recourse to settle the competing claims and objections arising 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, has increased.
In January this year, 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) and 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 put to it by Pakistan and that such questions should instead be decided through the neutral expert process.
On July 6, 2023, the court unanimously passed a decision (which is binding on both parties without appeal) rejecting each of India’s objections. The court determined that it is competent to consider and determine the disputes set forth in Pakistan’s request for arbitration.
Future supply of water
In an atmosphere of a lack of trust, judicial recourse appears to be the only rational strategy by the IWT parties. But 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, but it needs to incorporate mechanisms that allow flexibility to changes in the quantity of water available for allocation among the parties”, which a paper in Water Policy, the official journal of the World Water Council, highlights.
Bilateral water agreements are “vulnerable to climate change as most of them include fixed allocation of amounts of water use that are concluded under the assumption that future water availability will remain the same as today”, the document adds. Under the partitioning logic in the IWT, envisaging a vesting of proprietary rights in the eastern rivers (Article II, Sutlej, Ravi and Beas) to India, and in a similar fashion, the vesting of proprietary rights in the western rivers (Article III, the Indus, Jhelum and Chenab) 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, similarly, is also obligated to let flow all the waters of the western rivers and 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, this assumption regarding the supplies of water for agricultural purposes and industrial needs does not hold true.
Principles of water course
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. The thrust of the IWT is optimal use of the waters which India believes to be the object and purpose of the IWT as opposed to Pakistan’s understanding to be the uninterrupted flow of water to its side. Reconciling this divergent approach can be sought with the help of two cardinal principles of international water courses law accompanying binding obligations, i.e., equitable and reasonable utilisation (ERU) and the principle not to cause significant harm or no harm rule (NHR).
Although there is no universal definition of what ERU amounts to, 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 which 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.
In order to ensure rapid development, the states prioritise the ERU over the NHR. Both India and Pakistan believe their uses are consistent with the IWT. In a situation of conflict between different uses of water, 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. ‘Vital human needs’ are debatable but the inclusion of these principles in the IWT will help in erasing the differences. Even without its inclusion in the IWT, the ERU and NHR are binding on both countries as they are customary international law rule generating the binding obligation to both parties. But the inclusion of these principles in the IWT will ensure predictability to a certain extent.
In an atmosphere of a lack of trust between the two neighbours, the World Bank, a party to the IWT, may use its forum to forge a transnational alliance of epistemic communities (who share a common interest and knowledge to 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.
Anwar Sadat is Senior Assistant Professor in International law at the Indian Society of International Law, New Delhi. E-mail: sadatshazia@gmail.com
