By Prof. Bharat H Desai
A long awaited yet unprecedented development finally took shape in hydro-diplomacy and treaty law with India formally sending a notice to Pakistan for modification of the 1960 Indus Waters Treaty (IWT). This 62 years old treaty has weathered all the twists and turns in bilateral relations, three wars and multiple terror attacks from the launch pads in Pakistan including the attack on the Indian Parliament (2001) and the incidents in Uri (2016) and Pulwama (2019).
Significance of the IWT
The former U.S. President Dwight Eisenhower described the IWT as "one bright spot...in a very depressing world picture that we see so often." IWT is a unique experiment in transboundary water resources governance. The Karachi treaty was signed on 19 September 1960 by the Prime Minister of India and the President of Pakistan. The IWT has a preamble, 12 Articles and 8 detailed Annexures (A to H). It comprises the World Bank as a third party and a guarantor. The “Indus Waters Treaty was a great achievement of Pakistan and India and of the World Bank, and it remains so”, said Judge Stephen M Schwebel, Chairman of the seven member Court of Arbitration (CoA) in the Kishenganga Arbitration award (20 December 2013).
A road at confluence of the Indus and Zanskhar rivers in Ladakh (Photo: Reuters)
Article XII (3) of the IWT provides that this “Treaty may from time to time be modified by a duly ratified treaty” concluded “between the two Governments”. The Indian notice seizes the initiative in a tactical step for modification of the IWT. At the 60th anniversary of the IWT, this author suggested in 2021 article (Environmental Policy and Law (vol.52, no.3-4, 2021, 175-184) that “it will require India to take the lead fromthe front to bring the review of the 1960 IWT, especially in the light of the climatic changes, to the negotiation table at an appropriate time”. It seems that time has now come.
In the celebrated work on Rivers in International Law (London: 1959), F.J. Berber described the water relations between the states as forming “an extensive legal problem”. The customary International Water Resources Law has recognized the concept of an international river. It has been defined as any river flowing through the territory of two or more states.IWT is a global model for harnessing and governance of the shared international rivers. IWT provides India an unrestricted access to the Eastern rivers (Sutlej, Beas and Ravi) while the water of the Western rivers (Indus, Jhelum and Chenab) can be used in a non-consumptive manner for agriculture and generation of hydro-electric power. However, India does not fully utilize all the accessible water of the Eastern rivers and the irrigation and hydropower potential of the Western rivers.
Growing Disputes under the IWT
The growing number of disputes raised by Pakistan on the Tulbul Project, Baglihar Dam and Kishenganga hydro project have affected the spirit of the IWT. How to tame Pakistani discontent remains a challenge. It makes resolution through negotiations difficult and the Permanent Indus Commission (Article VIII) remains stranded. A ‘difference’ or a ‘dispute’ raised is left to a neutral expert or expensive international arbitration. All the major projects suggested by India became bones of contention. The pressure of growing population and developmental needs have been exacerbated by shrinking water availability in the Indus River basin due to climatic changes. In seminal 2020 work of colleague Shakil Romshoo of University of Kashmir, one of the partner universities of the IUCCCC coordinated by this author, showed that the “indicators of climate change are clear in the Indian Himalayan region”. Thus, in the changed circumstances after 62 years, making use of cutting-edge technologies and hardware such as remote sensing satellites, geographical information systems (GIS) and artificial intelligence (AI) could play an important role in the planning, construction and maintenance of large hydropower projects.
The 2021 report of the Standing Committee on Water Resources suggested that “There is a need to re-negotiate the Treaty so as to establish some kind of institutional structure or legislative framework to address the impact of climate change on water availability in the Indus basin and other challenges which are not covered under the Treaty”. Hence, the Committee recommended the government take necessary diplomatic measures to renegotiate the treaty with Pakistan to address the impact of climate change on water availability in the Indus basin. In 2016, even the Pakistani senate passed a resolution that suggested “revisit” of the IWT. Thus, after a formal notice by India, the response of Pakistan remains to be seen.
The IWT after 62 Years
The indicators of climate change seem to be quite visible in the Indus basin. The receding
glaciers, scanty snowfall, the changing land system patterns, increasing demands for water to meet irrigation, industrial and domestic water demands, all appear to impact the water availability in the Indus basin. This harsh reality due to the climatic changes has now set the stage for India raising the issue formally with Pakistan to reach common understanding for the common hydrological resources. Climate change is now consideredmost potent threat to the sustainability of global water resources.
There has been simmering quest for re-negotiation of the IWT on the groundthat the treaty “does not reflect all of the mainand future challenges” suchas the climate change, population growth, environmental flow needs, transboundary aquifer management, and growing water needs in the Indus Basin. This would necessitate use of benefit-sharing approach instead of engineering river-dividing approach to water management could deliver mutual benefits.
Since there is no provision in the IWT for unilateral withdrawal by a party, reneging from the treaty commitment could be only on the ground of ‘fundamental change of circumstances’, as provided in Article 62 of the 1969 Vienna Convention of Law of Treaties (VCLT). IWT wascrafted before advent of the VCLT. Since VCLT contains time-tested principle of customary law, it can still be applicable to IWT. However, the threshold laid down in Article 62 is toughfor any of the parties to meet.
Road Ahead
In orderto harness the hydro potential of the shared water courses in the Indus basin, this author suggested in the EPW (vol. 49, no.7, Feb 15, 2014) article that both the countries need to considerjoint design and implementation of hydroelectric power projects. It requires taking a holistic hydrological view and maintaining the environmental integrity of the entire Indus River Basin without compromising on thedevelopmental needs of the riparian states. In the changed circumstances after 62 years, it would require political sagacity, sensitivity and legal acumen to take the IWT forward on the basis of legacy of common waters heritage by jettisoning the misplaced animosity. The current stage of freezing of India-Pakistan bilateral relations does not offer immediate prospects for modification of the IWT. In the absence of a miracle, the beleaguered Pakistani establishment may remain recalcitrant and resort to legalese to avoid seizing the gauntlet thrown by the Indian initiative. As this author wrote in 2021, only time will provide us the answer as to how long will it take for the inevitability of IWT review to materialize.
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the Making SIS Visible initiative (2012-2020) and Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).
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