More than court action, revisit the Indus Waters Treaty

Source– The post is based on the article “More than court action, revisit the Indus Waters Treaty” published in “The Hindu” on 20th July 2023.

Syllabus : GS2- Bilateral groupings and agreements

Relevance: India and Pakistan bilateral relationship

News- The article explains the issues related to the Indus Water Treaty between India and Pakistan.

What are the issues faced by IWT?

Over the past ten years, there has been a growing trend of using the judicial route to resolve disputes arising from the construction and design aspects of run-of-river hydroelectric projects.

The Indus Waters Treaty permits India to construct these projects on the tributaries of the Indus, Jhelum, and Chenab rivers before they enter Pakistan.

In January of this year, Pakistan took the initiative to initiate arbitration at the Permanent Court of Arbitration based in The Hague.

The purpose of this arbitration was to address matters concerning the certain design elements of the Kishanganga and Ratle projects, which are located on the Chenab river.

Why is there a need for a relook at IWT?

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 in case of changes in the quantity of water available for allocation among the parties.

Bilateral water agreements are vulnerable to climate change. These are concluded under the assumption that future water availability will remain the same as today.

IWT does not take into account future water availability. Climate change can alter the form, intensity and timing of precipitation and runoff. The Assumption regarding the supplies of water for agricultural purposes and industrial needs does not hold true.

What is the way forward to reconcile the differences of India and Pakistan on IWT?

Two cardinal principles of international watercourse law can be helpful. These are equitable and reasonable utilization (ERU) and the principle not to cause significant harm or no harm rule (NHR).

ERU requires that 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 stipulates that any riparian state planning a project on a shared watercourse, which could potentially impact other neighboring riparian states, must take necessary actions to prevent harm. This includes conducting a transboundary environmental impact assessment as part of the precautionary measures

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’ principle is debatable but the inclusion of these principles in the IWT will help in resolving the differences.

The World Bank may forge a transnational alliance of epistemic communities to build convergent state policies. It can lead to inclusion of these two principles in the IWT.