India, Pakistan and modifying the Indus Waters Treaty

India recently issued a formal notice, under Article XII(3) of the Indus Waters Treaty (IWT), seeking a review and modification of the treaty. The notice highlights India’s growing domestic water needs, changing population demographics, agricultural demands, and the need for clean energy development to meet emission targets. India also raised concerns regarding cross-border terrorism affecting the smooth implementation of the treaty, particularly in Jammu and Kashmir.

Legal Provisions and India’s Approach

• Article XII(3) of the IWT: India’s move to review the IWT is grounded in Article XII(3), which allows treaty modification with mutual consent. However, such modifications require a ratified treaty between India and Pakistan, a significant hurdle given their strained relations and historical disputes.
• India's Objective: Optimal Utilisation: India, as the upper riparian, seeks optimal utilization of the Indus River waters for energy and agricultural needs. India aims to balance water use for hydropower projects while ensuring the minimum flow requirement stipulated in past arbitration awards, such as the Kishenganga dispute.
• Pakistan’s Opposition to Modifications: Pakistan, as the lower riparian, views the treaty as ensuring uninterrupted flow of water to its side. The divergent perspectives on the treaty’s purpose—India’s push for utilization versus Pakistan’s demand for protection from water diversion—remain a core issue between the two nations. 

Hydro-Power Projects and Environmental Concerns

• Hydropower Development and Minimum Flow: India has 33 hydropower projects in progress on the western rivers of the Indus system, which is allowed by the IWT. However, India must maintain a minimum flow of water to Pakistan’s side, as prescribed by the 2013 Permanent Court of Arbitration (PCA) ruling in the Kishenganga case.
• Customary International Law on No Harm Rule: Although the IWT does not explicitly include a "no harm" rule, it is implied by customary international law, which obliges both riparians to prevent significant transboundary harm. This principle is particularly relevant for hydropower projects with potential cross-border effects.
• Environmental Impact Assessment (EIA): The International Court of Justice (ICJ), in the 2010 Pulp Mills case, established the necessity of conducting transboundary Environmental Impact Assessments (EIA) for projects with potential environmental consequences. Both India and Pakistan will need to comply with this requirement for projects that could impact the shared waters.

Challenges and Suggestions for Cooperation

• Partition of River Basin and Its Challenges: The IWT partitions the Indus Basin into two sectors: India controls the eastern rivers, while Pakistan controls the western rivers. This partition has created significant challenges in integrated water resource management, making bilateral cooperation difficult and minimal.
• Impact of Climate Change on Water Availability: Climate change, particularly the depletion of glacial reserves, has caused a 30-40% decrease in the Indus’s water flow. India and Pakistan can refer to the principles of equitable and reasonable utilization (ERU) from the UN Watercourses Convention to address this emerging challenge.
• Possibility of Joint Projects and Negotiation: The IWT allows both parties to cooperate on joint engineering projects (Article VII.1c), which could help mitigate water variability due to climate change. However, due to the lack of trust between the two nations, renegotiating the treaty might be challenging. A more practical approach could be to create a Memorandum of Understanding (MoU) for cooperation under the existing framework.

Practice Question

Q. Evaluate the implications of India’s proposal to modify the Indus Waters Treaty (IWT) in light of its growing water needs and environmental concerns. How do the divergent interests of India and Pakistan impact the management of the Indus River system? Discuss potential pathways for future cooperation under the treaty framework.