India, Pakistan and modifying the Indus Waters Treaty
- India issued a formal notice on August 30, 2024, under Article XII (3) of the Indus Waters Treaty (IWT), aiming to review and potentially modify the treaty. This step reflects India’s concerns about meeting its growing water needs sustainably, adjusting to demographic changes, and promoting clean energy initiatives.
- India has cited challenges posed by cross-border terrorism in Jammu and Kashmir, which it claims hinder the full utilization of its rights under the treaty.
Article XII and Treaty Modification:
- Article XII permits treaty modifications but requires a new, ratified treaty by both governments, setting a high threshold for change.
- Past attempts, such as during the Kishenganga arbitral award in 2013, indicate that a mutually agreeable modification formula between India and Pakistan may be unlikely.
Divergent Approaches of India and Pakistan
- India’s Perspective: As the upper riparian, India aims to optimize water utilization for its own needs.
- Pakistan’s Perspective: As the lower riparian, Pakistan favors an uninterrupted water flow from India.
- These differing interpretations lead to disputes over water use, often resulting in arbitration.
Kishenganga Project Outcome:
- The Permanent Court of Arbitration allowed India to proceed with the Kishenganga hydropower project, dismissing Pakistan’s ecological harm concerns. However, India is required to maintain a minimum water flow of nine cubic meters per second.
Challenges in Resource Management:
- Optimal Utilization and Minimum Flow: Effective management of the Indus Basin would enhance water resources but is challenging under the IWT structure, which divides rivers between the two nations:
- India controls the eastern rivers (Ravi, Sutlej, Beas).
- Pakistan controls the western rivers (Indus, Jhelum, Chenab).
- Fragmented Management: The division disrupts hydrological connections, making integrated water resource management challenging and leading to limited cooperation.
International Obligations and Environmental Impact Assessment
- No-Harm Rule: While the IWT does not specify the no-harm rule, international law requires riparian states to prevent harm when conducting transboundary projects.
- Environmental Impact Assessment (EIA): Following the International Court of Justice (ICJ) decision in 2010 on the Uruguay river case, both India and Pakistan would need to perform EIA assessments for projects with potential cross-border effects.
Equitable and Reasonable Utilization (ERU):
- ERU, as per the 1997 UN Watercourses Convention, supports balanced water usage between riparian states. This principle can address emerging issues like climate change, which impacts the Indus Basin through glacial melting, potentially reducing river flow by 30-40%.
Consideration of Joint Projects:
- Article VII.1c of the IWT allows for cooperation on joint engineering projects, contingent on mutual agreement.
- Collaborative projects could help mitigate water variability linked to climate change, enabling both nations to manage water resources more effectively.
Suggestions for Moving Forward:
- Cooperative Measures: Given low trust levels, renegotiating the treaty might be challenging. However, both countries could use formal negotiation avenues within the IWT framework to develop a memorandum of understanding (MoU) addressing emerging concerns.
- Utilizing the IWT for Basin Development: Suggestions from experts (e.g., Zawahiri and Michel, 2018) encourage using the treaty as a structure for cooperative basin development, facilitating joint responses to water management and climate issues.