Saving the IWT

Published February 9, 2023
The writer is an expert on climate change and development.
The writer is an expert on climate change and development.

THE Indus Waters Treaty (IWT) that governs Pakistan-India water relations is under siege. The future of the treaty is threatened by recent Indian proposals, as leaked in the media, to amend its conflict-resolution clauses. The reported amendments propose that, instead of taking differences to neutral experts or arbitration courts, they be resolved bilaterally by the two countries, without engaging a third party. If accepted, the amendments would make the Indus River Systems and its governing ecosystem, that stretch from southwestern Tibet to the Arabian Sea, subservient to India’s regional foreign policy. The sovereigns must obey the integrity of transboundary basins.

Pakistan’s response has been predictable even if the country has not formally reacted to the proposals. India has invoked Article XII (3) of the IWT asking Pakistan to initiate negotiations within 90 days for amending the treaty by incorporating ‘lessons’ learnt over the last 72 years.

The Shimla Agreement that was signed between the two countries in June 1972, months after the 1971 war, had explicitly committed that both countries would resolve their outstanding issues bilaterally. For Pakistan, bilateralism was the beginning of the negotiation process, while for India it was the first and last stop for resolving differences. The spirit of the accord was ruined by irreconcilable differences in two official definitions of ‘bilateralism’. India and Pakistan have not been able to bridge this gulf in the last half century; and in fact it has been widening to the extent that it has become a cornerstone of each country’s foreign policy.

Pakistan’s historical position is that in case of failure to resolve outstanding issues bilaterally, the country reserves the right to take matters to other forums. As a relatively weaker country, Pakistan feels that its ability to internationalise bilateral disputes strengthens its position at the negotiation table. The treaty protects these rights of signatories and offers an elaborate mechanism for resolving all differences. In fact, the treaty’s clauses dealing with the appointment of neutral experts or the International Court of Arbitration as well as the honest broker’s role for the World Bank, are unique to IWT, and mostly absent in other regional transboundary water agreements.

Both India and Pakistan have failed to strengthen the Permanent Indus Commission.

For Pakistan, the Indus is its lifeline as the river’s tributaries are the source of almost all freshwater resources. In India, diversions and infrastructure on the Indus tributaries have been erected to meet part of the water demand in Ladakh, Indian-occupied Jammu & Kashmir, Delhi, Himachal Pradesh, Punjab, Haryana and Rajasthan. These areas also rely on Yamuna, a tributary of Ganges that, like the Indus, originates in Tibet.

India wants to amend the treaty ostensibly for speedier resolution of bilateral water disputes, presumably in reaction to slow decision-making on its Kishanganga and Ratle hydropower projects. On its part, Pakistan considers the design of both projects in violation of the treaty and has raised its concerns in the Permanent Indus Commission since 2006 on Kishanganga and six years later, in 2012, on Ratle. The dispute pertains to Pakistan’s concerns over India’s construction of the 330 MW Kishanganga project on the Jhelum and the 850 MW Ratle project on the Chenab. The two sides failed to find an amicable solution at PIC meetings for 10 years before Pakistan took its case to another level. Typically, both sides were comfortable accusing each other of intransigence; now, for the first time, India has placed the burden of failure on the treaty itself.

The World Bank lifted its embargo on the appointment of neutral experts and taking the case to the arbitration court in 2016. It failed in bringing the parties to agree on an option. It erred in its decision, which has unwittingly pitched two countries against each other, by letting them pursue two different conflict-resolution options. Pakistan had opted for the appointment of neutral observers in 2015 but revised its position a year later and in 2016 took its case to the arbitration court in the Hague under Article IX of the treaty.

India objected to this change and has proceeded with the appointment of neutral experts. As the two processes were unleashed concurrently, it has created a risk of conflicting decisions. India has boycotted the proceedings of the arbitration court, making the utility of the court’s decision far from uncertain. While Pakistan is seeking an ex parte decision from the court, India has already built the Kishanganga project. So much for the efficacy of Pakistan’s water diplomacy!

The delays in decision-making have been detrimental for Pakistan, yet the initiative to amend the treaty has come from India. Irrespective of the nature of Pakistan’s response, the proposal to amend the treaty will make the IWT dysfunctional, PIC even less effective, and increase acrimony between the two countries, particularly in the absence of any high-level political dialogue. Religious strife in India and political polarisation in Pakistan will add fuel to the fire.

In reality, both India and Pakistan have failed to strengthen PIC and have not allowed it to evolve into a robust institution. Globally, many transboundary water agreements have functioned successfully, primarily because their implementation institutions have evolved into robust professional institutions with dedicated staff and specialised research arms. Examples abound and include the Permanent Water Commission between Turkey and Armenia over the Arpacay river, the International Joint Commission for Boundary Water Treaty between Canada and America, the Danube River Commission in Europe, the Mekong River Commission, and the International Panel of Experts from Ethiopia, Egypt and other riparian countries for the Grand Ethiopian Renaissance Dam over the Nile.

The proposed changes in the treaty will bring the future of regional water relations to the brink. It seems that India’s water policy managers have begun to lose their space to geostrategic thinkers. It goes without saying that no single signatory can unilaterally introduce any amendments to the treaty. Likewise, no single country can save it. Both countries will need to be equally committed to protect the IWT. If it takes two to tango, protecting the treaty will need more than two, given that India and Pakistan aren’t even on talking terms. The challenge for policymakers in both states is to negotiate practical solutions rather than allow arbitrariness to become the norm.

The writer is an expert on climate change and development.

Published in Dawn, February 9th, 2023

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