Hedging and entrenched attitudes from India and Pakistan are a reminder that technical agreements are only a partial solution

Source– The post is based on the article “Hedging and entrenched attitudes from India and Pakistan are a reminder that technical agreements are only a partial solution” published in The Indian Express on 31st January 2023.

Syllabus: GS3- India and neighborhood relations

Relevance– India and Pakistan bilateral relationship

News– The article explains India current stand on the updation of Indus Water Treaty. It explains the important legal provisions of IWT related to negotiation of disputes. It also talks about the attitude of India towards water diplomacy

What is India’s current stand on the Indus Water Treaty?

New Delhi has expressed its intention to update the Treaty to incorporate the lessons learnt over the last 62 years. It has given a 90-day notice to Islamabad.

It has claimed that the adamant position of Pakistan had made the communication channels over shared waters defunct.

India has adopted the moderate approach of not terminating but modifying the IWT.

It has attributed the breach of treaty to Pakistan’s unilateral decision to approach the Permanent Court of Arbitration. Pakistan has bypassed the mandate of Indus Commissioners. It has violated the dispute settlement mechanisms provided by Articles 8 and 9 of the Treaty.

Conversations on renegotiating and upgrading the IWT began a few years ago. In 2021, a parliamentary standing committee report suggested renegotiating the Treaty.

What are some important legal provisions of the Indus Water Treaty?

Under Article 60 of the Vienna Convention on the Laws of the Treaties, a party can criticize an agreement and give notice of its intention to terminate it if the other party violates its fundamental provisions.

Article 8 of Indus Water Treaty specifies the roles and responsibilities of the Permanent Indus Commission.

Article 9 is relevant for addressing any dispute that might emerge between the two countries.

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. However, the Commission has to report the facts to the two governments.

The report must state the points of concord in the Commission, the views of each Commissioner on these issues and also mention the issues of disagreement.

Only after receiving such a report can either of the governments address the issue bilaterally or through the Court of Arbitration.

What has been the attitude of India and Pakistan in case of water diplomacy?

Pakistan has shown an inclination for third-party mediation. India has seen Pakistan’s objection to the hydel projects as a tactic to delay them.

Both countries have opted for diplomatic hedging. This attitude has framed the water diplomacy between the two countries as well.

Pakistan has contested the Ratle project on the Chenab River on grounds of design and violations of the IWT. It asked the World Bank to establish a Court of Arbitration to look into the project. India objected to this process by claiming that it was a unilateral move.

What is the way forward for water diplomacy by India and Pakistan?

We cannot look only at legal aspects. 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. Ecological and economic concerns are also important to understand the diplomatic fault lines.

Technically-negotiated agreements are only partial solutions and can put incremental strains on transboundary rivers and their ecosystems for years.

The two countries should use bilateral dispute settlement mechanisms to discuss the sustainable uses of water resources.

Article 7 talks about future cooperation. There is a need to discuss the transboundary governance issues in holistic terms. It could be the starting point for any potential diplomatic negotiations.