Will India's Initiative Turn Out To Be A Significant Breakthrough In Reorienting The Indus Water Treaty?

Background:

Following their separation in 1947 and eventual independence, India and Pakistan worked together to negotiate a treaty under the World Bank's auspices in 1960 that established their respective dominions over the vast Indus basin, which yields six rivers: the Ravi, Beas, andSatluj in the east, and the Jhelum, Chenab, and Indus in the west. Primarily under the IWT, Pakistan was given the right to receive the majority of the natural flow of the Western Rivers and India was permitted to use the waters of the Eastern Rivers exclusively (Article II). Moreover, India was granted some restricted rights in the Western Rivers to build reservoirs with a capacity of 3.6 MAF in order to generate electricity using run-of-river technology and supply water for irrigation in Jammu and Kashmir (Art III). There is no provision in the IWT for unilateral denunciation, withdrawal, or termination. It is an agreement that will last forever.

All around the world, the IWT was praised as a huge diplomatic achievement. However, the critics referred to it as a rotten deal, pointing out that Pakistan had acquired control of the Western Rivers, which are believed to contain 136 MAF of water annually, while India, an upper riparian state, retained control of the Eastern Rivers, which are estimated to contain only 33 MAF of water annually. India may, with certain restrictions, build hydroelectric projects on the western rivers according to the pact. Additionally, the treaty also allows both nations to use each other's rivers for certain uses, such as small hydroelectric projects that require little or no water storage. Although there has been along-standing disagreement over the Kishanganga and Ratle hydropower dams, both of which are located in the Union Territory of Jammu and Kashmir, the treaty has essentially guaranteed peace over water sharing. The design of the Indian dams, which are intended to generate electricity, has alarmed Pakistan, which alleges that India is in breach of the treaty as the dams will impede the flow of the rivers that supply water for 80% of Pakistan's irrigated crops. India, on the other hand, has refuted these accusations, countering Pakistan instead of stalling the grievance redressal procedure outlined in the treaty.

Resolution of Disputes under the Treaty:

The procedure for resolving disputes is graded under the IWT. The Permanent Indus Commission, which has a commissioner from Pakistan and one from India, is the first level of the resolution of the dispute under the treaty. There have been 118 meetings between the PIC commissioners from both sides in India and Pakistan between 1960 (the year when IWT came into force) and 2022. The purpose of this panel is to resolve small, primarily technical queries. The 'questions' become into'differences' and ultimately 'disputes' if problems are not resolved after completing this process. The World Bank may decide to mediate them by appointing a neutral expert to take them to the next level. The third mechanism of a Permanent Court of Arbitration at the Hague comes into picture if the neutral expert is unable to reach a satisfactory resolution.

The current controversy surrounding the IWT is against the backdrop of the prolonged disagreement regarding the Kishanganga and Ratle Hydro Projects. When Pakistan first objected to the design elements of two hydroelectric power projects in 2015, the World Bank was asked to send a "Neutral Expert" to resolve the issue. Pakistan subsequently changed its mind and in 2016, decided to have the matter decided by an arbitration court instead. Nonetheless, India persisted in its insistence that the "Neutral Expert" method be the only one used to resolve the conflict. The chair of the Court of Arbitration and a Neutral Expert were appointed by the World Bank in October 2022 following the failure of negotiations. India, however, refused to participate in the Court of Arbitration, cautioning that "such parallel considerationof the same issues is not covered under any provision of the IWT."

The Current Commotion:

As mentioned above, India formally notified Pakistan of its intention to review and amend the IWT in accordance with Article XII(3) of the IWT . The notification dated August 30, demands government-to-government talks, citing significant and unanticipated changes in the situation that demand a review of the treaty's obligations. The notice from India requests thatPakistan hold negotiations to amend the treaty in accordance with Article XII(3), which reads, "Provisions of this treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments." This is not, however, the first time that India has notified Pakistan about the need to revisit the treaty. In January 25, 2023, New Delhi sought review citing Islamabad's 'intransigence' in implementing the treaty, by raising repeated objections to hydro-electric projects on theIndian side and justified it as a lesson learnt over 62 years. Nevertheless, no substantive response was received from Pakistan. India underlined the profound shifts in the world that have taken place since the IWT''s signing in 1960. In light of India's growing reliance on hydropower to meet its clean energy targets and its need to reduce emissions, its recent notice emphasized the importance of having talks. Furthermore, even though the IWT was successful in guaranteeing decades of water cooperation, changing geopolitical tensions in recent times have brought it under new-fangled scrutiny. The IWT also does not contain particular measures for addressing environmental issues, which could lead to more profound water disputes as the effects of climate change are becoming increasing more noticeable of late. The impact of persistent cross-border terrorism also is one of the gravest concerns for India. Evidently, the notice was sent to Pakistan against the backdrop of these concerns by India.

Recourse under International Law:

Pakistan is getting an excellent bargain with the IWT. The three major western rivers ofthe Indus Basin—the Indus, Jhelum, and Chenab—which supply 80 percent of the basin's water—are awarded to Pakistan, despite the fact that its provisions grant India and Pakistan three rivers each. The treaty only gives India 20 percent of the water flows in the entire Indus River Basin, and India is aware that it has been given the short end of the stick. Needless to say, India has legitimate concerns regarding the IWT. India, thus would have carefully considered all its options before sending notices to Pakistan. Pertinently, in comparison to India's January 2023 notification to Pakistan regarding the "modification" of the IWT, the latest notice (issued in August 2024) is qualitatively different and a step higher. India is requesting for "review and modification" of the IWT this time, which is a step that basically emphasizes the desire to revoke the treaty and renegotiate it. Coincidentally, hours before India sent its notice in January 2023—which India boycotted—the Court of Arbitration started its first hearing to decide whether it had the competence to handle Pakistan's request. In July 2023, the Court dismissed India's concerns and upheld its competence to hold the hearing. However, India extended its boycott until the case's merits stage, which continued ex parte (the first phase on Merits concluded in July 2024).

Since India has now requested for both “review” and “modification” of the IWT, it is imperative to elaborate about both the terminologies under International Law, here. The Vienna Convention on Law of the Treaties (VCLT), 1969, governs the law pertaining to modifications of the Indus treaty. The modification of the treaty is covered in Chapter V of the treaty, specifically under Article 41. In essence, modifications alter the treaty's effects, which cannot conflict with its intended purpose. As far as revision is concerned, sometreaties use the term "amendment" in relation to individual provisions of the treaty and the term "revision" for a general review of the whole treaty. Consequently, it is obvious that India did desire an overhaul of the IWT, which is why consecutive notices were sent to Pakistan. In the years to come, this action by India may turn out to be a significant breakthrough.

Both countries may benefit from the revision and modification of the IWT. Now, the countries can take a cuefrom the examples like that of the Niger Basin Authority (NBA), which replaced the Niger River Commission (NRC) in 1980 with the amendments made in the Niamey Agreement (which was signed in the year 1964 and replaced the Niamey Act signed in 1963) NBA Member States include the following riparian states of the Niger River: Niger, Benin, Chad, Guinea, Côte d'Ivoire, Mali, Nigeria, Cameroon and Burkina Faso. Apparently, many changes have been made since the initial treaty signed in 1963. As the Niger Basin's demands evolved, so did its legal system. It has been changing steadily over the last half century. Recent calls have also been made for the NBA to respond to the effects of climate change in an even more comprehensive manner. The possibility of a developing regime is demonstrated by the Niger River, making it an excellent model to emulate. Authors such as Natalie A. Nax assert that treaty changes and modifications can be just as effective. There are Indian scholars like B.G. Verghese, who support the requirement of modification in the current IWT and contend that a modified version of the IWT (IWT II) can be built on the foundations of the current IWT because Article 7 of the IWT allows for expansion in future cooperation.

Further, the best course of action for India was to give notice to Pakistan because, in the absence of an exit clause in the treaty, India might find it difficult to defend unilateral abrogation. Article 56 of the VCLT, talks of withdrawal from a treaty containing no provision for the same. Although, VCLT does allow nations to withdraw unilaterally, it only applies to treaties made after January 27, 1980, and India has neither ratified nor has it signed the same. It can, however, be relied on as an emerging customary rule of international law. Should India have chosen a path for a unilateral IWT abrogation, it might have also faced global backlash. Also, every bilateral and multilateral treaty and agreement is signed with the understanding that "agreements must bekept," or that good faith must be used in relation to any treaty or Agreement. This is known as the principle of “Pacta Sunt Servanda”. This implies, by extension, that any alterations, suspensions, and terminations of the treaty shall be implemented in accordance with the terms stipulated therein.

The IWT is regarded as a resilient illustration of how international law can ease tension and foster collaboration, even in the ongoing hostilities between India and Pakistan. The antagonistic ties between the two State parties haven't stopped the treaty from surviving for a long while. Nevertheless, troubles have begun to surface over time and the areas of ongoing conflict and the increasing discontent with the treaty cannot be disregarded for very long. For that reason, a new version of the IWT that complies with the technological and legal advancements should be renegotiated as a chance to improve the law. The agreement could be successfully reviewed and renegotiated to better align it with the current international watercourse law and growing concerns about water quality, environmental sustainability, climate change, and equitable sharing etc. The IWT can be a beacon of hope for bettering India-Pakistan bilateral relations, if it is re-negotiated skillfully, and India's notice to Pakistan, requesting "review" and "modification" may prove to be the first significant step in that direction.

Ms. Jyoti Singh, Advocate based out of Delhi and Former Legal Consultant to the Ministry of External Affairs, Government of India. Views are personal.