Indus River System
Indus arises from the northern slopes of the Kailash range in Tibet near Lake Mansarovar.
It has a large number of tributaries in both India and Pakistan
It enters the Indian Territory through Ladakh by forming a picturesque gorge
The major tributaries of the Indus River in India are Jhelum, Ravi, Chenab, Beas, and Sutlej.
Indus basin extends over China (Tibet), India, Afghanistan and Pakistan.
In India, the Indus basin spreads over Jammu & Kashmir, Ladakh, Himachal Pradesh, Punjab and part of Rajasthan, Haryana, and Chandigarh.
Indus Waters Treaty is a water-sharing agreement between India and Pakistan signed in 1960.
The World Bank mediated the agreement.
The United Nations established the Permanent Indus Commission to resolve any disputes that may arise in water sharing, including a mechanism for arbitration to resolve conflicts amicably.
India can use the water from the western rivers for domestic, non-consumptive purposes such as storage, irrigation, and electricity generation, according to the treaty.
The treaty allocates 20% of the water from the Indus River System to India and the remaining 80% to Pakistan.
Permanent Indus Commission:
It also required both the countries to establish a Permanent Indus Commission constituted by permanent commissioners on both sides.
According to the provisions of the IWT, the Permanent Indus Commission is required to meet at least once a year.
Dispute Resolution Mechanism:
The IWT provides a three-step dispute resolution mechanism under Article IX of the Indus Waters Treaty, under which “questions” on both sides can be resolved at the Permanent Commission, or can also be taken up at the inter-government level.
In case of unresolved questions or “differences” between the countries on water-sharing, such as technical differences, either side can approach the World Bank to appoint a Neutral Expert (NE) to come to a decision.
And eventually, if either party is not satisfied with the NE’s decision or in case of “disputes” in the interpretation and extent of the treaty, matters can be referred to a Court of Arbitration.
Recent Concerns
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
But 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 has increased.
In January 2023, 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.
In an atmosphere of a lack of trust, judicial recourse appears to be the only rational strategy by the IWT parties.
But it is not likely to address the rapidly growing industrial needs of the two countries, apart from food and energy needs.
Challenges
Bilateral water agreements are vulnerable to climate change as most of them include fixed allocation of amounts of water use that are concluded under the assumption that future water availability will remain the same as today.
With climate change altering the form, intensity and timing of precipitation and runoff, this assumption regarding the supplies of water for agricultural purposes and industrial needs does not hold true.
Under the partitioning logic in the IWT, it does not take into account future water availability.
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.
Pakistan’s understanding to be the uninterrupted flow of water to its side.
Way forward
Reconciling the divergent approach can be sought with the help of two cardinal principles of international watercourses 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 Article 6 of 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.
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’ are debatable but the inclusion of these principles in the IWT will help in erasing the differences.
Even without its inclusion in the IWT, the ERU and NHR are binding on both countries as they are customary international law rule generating the binding obligation to both parties.
But the inclusion of these principles in the IWT will ensure predictability to a certain extent.
The World Bank, a party to the IWT, may use its forum to forge a transnational alliance of epistemic communities (who share a common interest and knowledge to the use of the Indus waters), to build convergent state policies, resulting in the ultimate inclusion of these two principles in the IWT.
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