More than court order, Revisit the Indus Water Treaty (IWT)

More than court order, Revisit the Indus Water Treaty (IWT)

News: Recently, the Permanent Court of Arbitration (PCA) determined that it is incompetent to consider and determine the disputes set forth in Pakistan’s request for arbitration.

Background:
• Earlier in the year, Pakistan initiated arbitration at PCA to address the interpretation and application of the IWT to certain design elements of two run-of-river hydro-electric projects on Kishenganga and Chenab rivers.

What is the Indus-Water Treaty?
• IWT is a water-distribution treaty between India and Pakistan, brokered by the World Bank (WB), to use the water available in the Indus River and its tributaries.
• It was signed in Karachi in 1960 by then-Indian PM Jawaharlal Nehru and then-Pakistani president Ayub Khan.
• The Treaty gives control over the waters of the three “eastern rivers” – the Beas, Ravi and Sutlej (RBS)- to India.
• Control over the waters of the three “western rivers” – the Indus, Chenab and Jhelum has been given to Pakistan.
• India has about 20% of the total water carried by the Indus system while Pakistan has 80%.
• The IWT allows India to use the western river waters for limited irrigation use and unlimited nonconsumptive use for such applications as power generation.
• India has the right to generate hydroelectricity through run-of-the-river (RoR) projects on the western rivers which, subject to specific criteria for design and operation, is unrestricted.

What is Article 9 of IWT?
• It offers a graded pathway (as seen in image) to address any issue related to the implementation or interpretation of the IWT.
• It provides for the appointment of a neutral expert in case there is a lack of consensus among the Commissioners.
• If the neutral expert believes that the difference should be treated as a dispute, it can be referred to the Court of Arbitration.

What is the need to revisit the IWT?
• Bilateral water agreements are vulnerable to climate change. Most of them include fixed allocation of amounts of water: concluded under the assumption that future water availability will remain the same as today.
• Under the partitioning logic in the IWT vesting of proprietary rights in the eastern rivers to India, and the vesting of proprietary rights in the western rivers to Pakistan, does not take into account future water availability.
• With climate change altering the form, intensity and timing of precipitation and runoff. Assumption regarding the supplies of water for agricultural purposes and industrial needs does not hold true.
• Pakistan’s frequent opposition to the Indian projects.
• No regular data sharing as planned in the treaty.

Way Forward
• The World Bank (party to the IWT) may use its forum to forge a transnational alliance of epistemic communities (who share a common interest and knowledge of the use of the Indus waters) to build convergent state policies.
• The practice of diplomacy and the use of law for explaining and justifying government actions are equally important and the reasoning put forward by India and Pakistan requires scrutiny.