Context: 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.
Recent Development:
- In the recent times 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.
- 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.
- 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.
Issues in Indus Water Treaty
- Prevents Storage: It prevents storage projects by India that was even highlighted by Parliamentary committee.
- Technical: The treaty is highly technical in nature which leads to different interpretations among the countries.
- Political Mistrust: There is high-level of political mistrust between India and Pakistan which has historical underpinnings.
- Underutilization: The parliamentary committee has also opined that India has underutilized water of western rivers for irrigation purpose though being legally permissible under the treaty
- Data Sharing: There is absence of data sharing mechanism within the treaty.
- Emerging issues: The treaty was signed in 1960 and is limited to river management and usage and thus does not incorporate contemporary issues like climate change, global warming and Environmental Impact assessment under its ambit.
- Limited role of World bank: World Bank though a guarantor relies on the reports that are submitted by respective countries and thus has no independent way to ensure what actually is the issue.
Way Forward:
- Internationalizing India’s position: India has only utilized 93% of the storage capacity under the treaty and 25% of water generation capacity which highlights India’s credential as generous upper riparian state.
- Renegotiation of Treaty: To accommodate for climate challenges and other emerging issues.
- Seeking Cooperation: The provisions of the treaty provides scope for joint studies and joint research and this can be utilized to ensure cooperation between countries.
- Relationality over rationality: The focus should be on relationality i.e. benefit sharing rather than just restricting the goals to water sharing as it will give due importance to minor issues like soil erosion, water quality etc.
- Changing approach: There is a need to change approach from and focus on sub-basin level, which will not only make use of existing hydrology mechanism but also the socio-economic impact of the same.
- Contemporary laws: Both India and Pakistan can make active use of contemporary laws like “Helsinki Rule”, which provides for the International guideline asserting rights for all bordering nations to have equitable share in water resource.
- Reconciling this divergent approach: Which 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). In order to ensure rapid development, the state’s (India and Pakistan) needs prioritise the ERU over the NHR.
