India, Pakistan and modifying the Indus Waters Treaty

Given the lack of trust between the two countries, renegotiating the IWT to review and make changes might prove difficult

दोनों देशों के बीच विश्वास की कमी को देखते हुए, IWT की समीक्षा और उसमें बदलाव के लिए फिर से बातचीत करना  मुश्किल साबित हो सकता है

Article XII (3) of the Indus Waters Treaty (IWT) 

What is the notice 

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 domestic water needs in a sustainable manner.

 The notice is to review and modify the treaty to address 

• altered population demographics,
• agricultural
• accelerate the development of clean energy to meet India’s emission rights. 

cross-border terrorism  

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

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’.

 Kishenganga arbitral award 2013 

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

 ecological harm raised by Pakistan for dam by india 

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 

: that India has to maintain a minimum 9 cubic metre a second flow. 

India has 33 hydro-power projects but concern ?

 in either construction or planning phase, along the western tributaries. 

Use of western rivers for hydro-power generation is permitted under the IWT but the crucial point is about India maintaining minimum flow.

Challenges in managing resources

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. 

.

IWT  not have no harm rule

it still binds both the riparians as the rule is a customary international law. 

so  that both riparians have to take 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) 

 

it 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.

 Article 5 

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. 

here we unforeseen effects of climate change such as depletion of glacial reserves which cause a 30%-40% decrease in the Indus’s water flow.

Article VII.1c 

 if both the parties are in agreement, they can cooperate in joint engineering projects along the river. J

oint 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).

source the hindu