More than court action, revisit the Indus Waters Treaty

Subject : International Relations

Section : International Conventions

Concept :

India announced that it wants to modify the 62-year-old 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.

Current status

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.

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 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.

Indus Water Treaty (IWT)

The Treaty is a water-distribution treaty between India and Pakistan, brokered by the World Bank.
IWT was signed by the then Prime Minister Jawaharlal Nehru and then Pakistani President Mohammed Ayub Khan in Karachi on September 19, 1960, after nine years of negotiations between the two countries.
According to this treaty, three rivers: Ravi, Sutlej and Beas were given to India and the other three: Sindh, Jhelum and Chenab were given to Pakistan.

Rights & obligations under this treaty

India is under obligation to let the waters of the western rivers flow, except for certain consumptive use.
The treaty allocates Pakistan approx. 80% of the entire water of the six-river Indus system and reserved for India just remaining 19.48% of the total waters.
India can construct storage facilities on western rivers of up to 3.6-million-acre feet, which it has not done so far.
The IWT permits run of the river projects and require India to provide Pakistan with prior notification, including design information, of any new project.

Dispute redressal mechanism under the Treaty

Article IX of the Treaty is a dispute resolution mechanism – graded at three levels to resolve a difference or a dispute related to projects on the Indus waters.
First level
Either party has to inform the other side if they are planning projects on the Indus river with all the information that is required or asked for by the other party.
This process is done at the level of the Permanent Indus Commission (PIC), created to implement and manage the goals of the IWT.
If PIC is unable to solve the question in contention, the question becomes difference and goes to second level.
Second level
The second grade is the World Bank appointing a neutral expert to resolve the differences.
If a neutral expert cannot resolve the issue, the difference becomes a dispute and goes to third level.
Third level
At this level, the matter goes to a Court of Arbitration (CoA) whose chair is appointed by the World Bank.