Sixty Years of the Indus Waters Treaty in the Era of Climate Change: A Look Ahead in Hydro-diplomacy and Treaty Law

1 Introduction

We now live in an age of the ‘Anthropocene’ 1 as the new geological epoch, as pronounced by the Anthropocene Working Group on 21 May 2019. It has brought to the fore an unmistakable imprint of human activities as evidenced by the rising global temperatures causing the sea levels to rise; and increasing extreme weather events result in natural calamities such as floods, droughts, storms, the spread of diseases and melting of the glaciers. In fact, there is also “much evidence of associations between climatic conditions and infectious diseases”. 2

In view this, there has been an increasing realization about the critical importance of efficient water resources management for sustainable development. Water is not only an essential biological need and valuable economic good but also become one of the most politicized among all the natural resources. A critical issue that impinges upon a just and equitable solution is how to allocate and manage the water resources of international rivers in the era of climate change so as to satisfy divergent needs of peoples of all the co-basin countries. 3 There is a formidable challenge of containing conflicts arising out of scarce water resources of the shared transboundary rivers. The issues of increasing water scarcity, degradation of water quality, rapid population growth, and unilateral water resource related projects as well as uneven levels of economic development have unleashed severe competition among the co-riparian states. 4 In fact the water relations between the states have come to form “an extensive legal problem”. 5

The growing water related conflicts that can take the form of formal inter-state disputes presents a simmering challenge both in treaty law and hydro-diplomacy. They have become disruptive factors in the maintenance of international peace and security. In fact, the South Asian region is acutely prone to this trend. It does impinge upon the national security of a country such as India. The nature of the problem gets exacerbated as the co-riparian states are tied up in a highly complex web of environmental, economic, political and security interdependencies. 6 As a result, any unilaterally harmful act with regard to the water flows of shared rivers by the riparian states is likely to inflict economic, environmental and security cost on other riparian states. Thus, if relations among the riparian countries sour, shared water resources can become a potential source of conflict and even could become a weapon of war.

2 Concept of an International River

The customary international law has recognized the concept of an international river. It has been defined as any river flowing through the territory of two or more states. The conflict, if it may arise, between the riparian states, is sought to be resolved on the basis of mutuality. It, in turn, implies that waters are to be utilized in conformity with the principle of fair and equitable sharing. 7 It has a legal basis in international environmental law, international human rights law and the law of the sea. In fact, it can be construed to imply “a concerted effort in identifying and apportioning benefits through a dialogic process”. 8 Moreover, it has been argued that “the legal governance of transboundary water emerges as an important means of preventing conflict over shared water resources”. 9 In view of this, such shared water resources require crafting of a fair and equitable legal framework that could provide a concrete basis for addressing a river basin’s developmental problematique from time to time.

It is in this context that this article seeks to encapsulate the resilience, water sharing methodology and actual working of the Indus Waters Treaty (IWT) of 1960 between India and Pakistan. It provides us vital lessons in hydro-diplomacy and treaty law in sharing of the transboundary water resources. The IWT attained the milestone of 60 years on 19 September 2020. 10 The article briefly examines the need, if any, for review of the IWT especially in view of the melting of the glaciers at the source and the dwindling water flows exacerbated by the impacts of global climatic changes.

3 Water Resources in the Era of Climate Change

It is, generally, perceived that current trends of global climate change will also exacerbate the risk of conflict over shared international freshwater resources. The receding glaciers, scanty snowfall, changing land system patterns, increasing demands for water to meet irrigation, industrial and domestic water demands, all cumulatively could impact water availability in the shared river basins. 11 The growing water related disputes have already become a factor in disrupting peace and tranquility especially in the South Asian region. However, if tackled effectively, they still “can pave the way for cooperation in economic development as well as generate goodwill which may pave the way for tangible solutions to plaguing regional problems too”. 12 In fact, climate change impacts on the fluctuation of the glaciers have become a become a subject of cutting-edge research. In fact, this author was engaged during 2012– 2020 period in initiating and coordinating a major four partner (JNU, Jammu, Kashmir and Sikkim) Inter-University Consortium on Cryosphere & Climate Change (IUCCCC). 13

In a pathbreaking 2020 publication of research outcome by Romshoo, one of the IUCCCC partners, shows that the “indicators of climate change are clear in the Indian Himalayan region”. 14 According to it, these indicators include recession of snow and glaciers, increasing temperatures, changes in the form of precipitation, shifting tree line, loss of biodiversity, increase in the frequency of hydrometeorological hazards.

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Fig. 1

Location of the study area. 15

In this backdrop, the IWT has become a cooperative role model at work for sharing of the water resources in the Indus Basin. As a corollary, it has been aptly underscored that:

The Kishenganga Arbitral Award (Pakistan/India) delivered on 20 December 2013 by the Court of Arbitration (PCA, The Hague) 17 in the Kishenganga Hydro-electricity Project 18 became important in the settlement of disputes under the mechanism prescribed by the IWT. There have been other simmering disputes such as the Tulbul Navigation Project and the Baghlihar Dam over sharing of the Indus waters between the two South Asian neighbors.

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Fig. 2

Kishenganga Hydro-electric Project Layout. 19

India faces similar potential conflicts over shared water courses with Bangladesh (Teesta River) as well as Nepal (Kosi and Mahakali). All of them underscore the graphic reality of the need for robust cooperative shared transboundary water resources management in the region. These could translate into potential national security challenges especially due to climate change induced growing water stress in the first quarter of the 21st century.

It is now generally agreed that water-sharing agreements between riparian states could help in averting shared water resources conflicts. However, the existing agreements and international principles for transboundary water resources management do not have an adequate in-built resilience to accommodate strains of pressures, particularly those caused by climate change. 20 The surge in large hydroelectric power projects to meet growing energy demands in the region is a reflection of this trend. Most of the existing (bilateral) treaties are based on the outdated assumption that the future water supply and quality will not change. Thus, it appears, adapting to factors comprising future environmental stress would require out of box solutions as well as robust approaches, policies, legislations and institutional frameworks to grapple with these simmering challenges of shared transboundary water resources.

The Indus Basin is the source for the largest contiguous irrigation system in the world having a command area of 20 million hectares in its basin of 1,138,800 km² area. 21 It is basically the lifeline of the billions of people living in the river basin shared between India (29%), Pakistan (63%), China and Afghanistan (8%) and supports a multitude of ecosystem services essential to sustain economic growth, alleviate poverty, support prosperity, secure food supplies, fuel energy demand and above all it guarantees political stability of the region. Occupying 92% of the basin 22 , the Indus waters from the six rivers of the Indus Basin are shared between two stakeholders, namely India and Pakistan. The main source of the Indus River is located in Tibet, the headwaters of the basin lie in India and the bulk of the command area falls in Pakistan 23

The water resources of the Indus Basin are mostly shared by India and Pakistan under the 1960 IWT on the basis of one of the remarkable settlements of transboundary waters across the world. As the IWT has attained the significant milestone of sixty years of its working, it provides a good basis to look back to look ahead into the future in the 21^st century and beyond. Notwithstanding all the trials and tribulations of bilateral relations with Pakistan, a sovereign state of India’s size, population, might, economy, civilizational history and geographical location is now in a position to look back with confidence and a sense pride that the IWT has been cited as one of the best examples of inter-state water resources sharing arrangements in the world. 24 This strength and positivity to make the IWT work, enables us to look ahead into the future.

5 The 1960 Treaty

The treaty law framework known as the IWT comprises the Preamble, 12 Articles and 8 detailed Annexures (A to H). It was on 19 September 1960 that the IWT was signed in Karachi (Pakistan). 25 It became a unique bilateral treaty for sharing of transboundary water resources and arrived at the highest political level between the Prime Minister of India and the President of Pakistan. The treaty was crafted after nine years long negotiations and uniquely comprises presence of the World Bank as a signatory, a guarantor and often a go in-between for the interpretation of the treaty. The IWT seeks to delineate the apportionment terms of six rivers and tributaries of the Sutlej, the Beas, the Ravi (Eastern Rivers), the Indus, the Jhelum and the Chenab (Western Rivers). As we look back, the trajectory of the past 60 years shows that the IWT has turned out to be one of the best treaty instrumentalities of International Law. In fact, the opening line of the Preamble to the IWT underscores that:

Both the signatory states were “being equally desirous of attaining the most complete and satisfactory utilization of the waters of the Indus system of rivers.” 27 Accordingly, the waters of the Eastern Rivers have been provided for unrestricted use to India and waters of the Western Rivers to Pakistan as per exceptions and annexures. 28 It has created a permanent post of the commissioner for the Indus waters to facilitate the communication on all the matters relating to the implementation of treaty. Both the commissioners basically constitute the Permanent Indus Commission (PIC). 29 The question(s) between the parties concerning the “interpretation or application of this Treaty” or existence of any facts that “constitute a breach of this Treaty” would be examined and resolved by the PIC by an agreement. If they do not resolve the question(s) by agreement, then it would be dealt under dispute settlement mechanism prescribed in Article XI of the IWT as follows:

The fact that the treaty was signed at the highest level, after nine years of protracted negotiations and comprises the World Bank as a third party and a guarantor makes the IWT a unique experiment in hydro-diplomacy and transboundary waters sharing agreements. While delivering the Final Award on 20 December 2013, Judge Stephen M Schwebel, Chairman of the seven-member Court of Arbitration (CoA) in the Indus Waters Kishenganga Arbitration. Observed that “the Indus Waters Treaty was a great achievement of Pakistan and India and of the World Bank, and it remains so;... and these proceedings are an illustration of its continuing vitality.” 31

Despite the history of animosity, trust deficit as well as inhospitable hydro-political climate, India and Pakistan still remain engaged in the IWT’s transboundary Indus Basin water sharing cooperative framework. 32 The treaty regime has survived wars, shrill calls for abrogation, political instability and hence helped to some extent in containing bilateral water sharing disagreements. 33 It has also served as an important function of allocation of river waters as well as providing an in-built framework for settlement of disputes arising out of interpretation of the IWT.

6 Growing Disputes Under the IWT

The growing number of disputes arising under the IWT also underscores discontent and deep-rooted distrust between the parties. Ironically, Pakistan’s frequent invoking of the IWT dispute settlement mechanism - in terms of questions, differences or disputes (see Table 1) – has largely contributed to this.

The Table 1 shows the shadow of the bilateral relations from time to time looming large over the consensual water sharing mechanism enshrined in the IWT. As a result, Pakistan, as a lower riparian state has been consistent in raising issues by invoking the IWT dispute settlement mechanism. It seems difficulties in bilateral relations derail negotiations and the IWT’s in-built institutionalized forum – Permanent Indus Commission - is rendered ineffective. Pakistan, has shown a pattern of resorting to invoke IWT mechanisms comprising highly expensive Neutral Expert and international arbitration proceedings such as the Kishenganga Arbitration (2010– 2013) even as both the countries remain mired in the legacy of pervasive poverty 35 long after the painful partition of 14-15 August 1947.

Ironically, the derailment of work of the PIC, body bestowed under the treaty with substantial conflict resolution powers, to resolve and nip in the bud any potential disagreement/conflict 36 raises vital questions. At the same time, somehow, the perceived grievances and obstacles created by the lower riparian state (Pakistan) in the hydro-power projects undertaken by the upper riparian state (India) has not derailed the IWT itself.

Notwithstanding above scenario, it needs to be noted that some of the perceived challenges could arise due to growing pressure of population and developmental needs as well as shrinking water availability in the shared Indus River Basin. This has been exacerbated, among others, due to climate induced changes in water flows. It does not affect utility as well as effectiveness of the IWT as it provides multiple methods to resolve any issues between the parties (ranging from negotiation, good offices, conciliation, mediation and arbitration). 37 The success of any such method would, however, require cordiality in bilateral relations and concern for the welfare of the people as well as maturity and understanding of the parties to the IWT.

In order to strengthen cooperation between the parties to the IWT, it is high time to make use of cutting-edge technologies and hardware such as remote sensing satellites, geographical information systems (GIS) and artificial intelligence (AI) that could play an important role in the planning, construction and maintenance of large hydropower projects. 38 In turn, it will help in jettisoning rumors, ignorance and emotions from taking hold in the absence of hard data in view of reality of shrinking river waters availability in the Indus Basin.

The fact that parties have turned, time and again, to the IWT mechanisms – and not use of force – itself speaks volumes for reliance upon the existing legal governance of shared transboundary water resources under the sui generis IWT. However, persistent complaints by Pakistan that India is violating IWT and its efforts to drag the matter to an international dispute settlement forum at the first available opportunity – to internationalize a bilateral dispute – basically emanates from deeply entrenched distrust and compulsions of domestic politics. 39 Therefore, these could be regarded as proverbial ‘pin-pricks’ rather than serious objections per se. Though not a perfect bargain, the IWT has withstood the test of time in showcasing spirit of cooperative transboundary river water sharing.

In view of this ‘persistent objections’ attitude of Pakistan, there have been calls on the Indian side to abrogate the treaty especially due to rise in the cases of transborder terror incursions and strikes. It led to ‘surgical strikes’ by the Indian special forces against terror “launch pads”— as a sequel to the terror attacks in Jammu and Kashmir’s Uri sector on 29 September 2016. 40 The said surgical strikes took place in Pakistan-occupied Kashmir (POK) that has been consistently claimed by India as its own territory, currently under belligerent occupation of Pakistan. It has been often contended that ‘blood’ and ‘water’ cannot go together. Still, wiser counsels have prevailed on the Indian side as it makes no sense to ‘throw away baby with the bath water’. On the contrary, it made sense to show magnanimity to eschew ‘pin-pricks’ of Pakistan so as not to derail the IWT.

8 Some Key Issues

It is generally agreed that negotiating water-sharing agreements between riparian states may help to avert conflicts arising out of shared water resources. However, the existing agreements and international principles for transboundary water sharing do not adequately provide answers to the strain of future pressures including those caused by climate change. 41 Yet, the climate change issue is rarely discussed in transboundary water sharing negotiations and the treaty arrangements. As such, the IWT could be found inadequate to address the challenge of climate change. Now, it appears, adapting to climate change is going to require changes in policies, laws, institutions and even preparedness for changing the mindsets to grapple with the challenge.

The issue of climate change needs to be a high priority for both India and Pakistan under the IWT. In fact, the PIC, managing the Indus Basin, must be highly adaptive to ensure not only resilience to climate change but also long-term sustainable development of the basin and its people. 42 The success of transboundary cooperation in climate change adaptation could very much depend on existence and strength of the joint river commission’s secretariat that can play an effective coordination role. It could ensure that required knowledge and experience of adaptation in a transboundary context as well as crucial data are timely analyzed and placed in the joint decision-making process. 43 This could provide an opportunity for better communication between India and Pakistan and serve as a driver for cooperation on transboundary shared water resources. It necessitates joint assessment of problems, priorities and solutions.

For a basin-wide vulnerability assessment it is important to create a joint group to perform the assessment, to harmonize the used tools, models and scenarios, to communicate knowledge to the political level, to exchange information, to involve stakeholders, and to cooperate with international organizations. 44 Education, capacity-building and communication are imperative for an effective adaptation. It also requires a cross-sectoral approach, including at the transboundary level, in order to prevent possible conflicts between different sectors. It is also required to strongly value local knowledge and recognize the need to share power between different levels and sectors of government and civil society through openness and participation in decision-making. Furthermore, adaptation measures also require being cost-effective, environmentally sustainable, culturally compatible and socially acceptable.

9 Future of Hydro-Diplomacy and the IWT

The indicators of climate change seem to be quite visible in the Indus Basin. The receding glaciers, scanty snowfall, the changing land system patterns, increasing demands for water to meet irrigation, industrial and domestic water demands, all appear to impact the water availability in the basin. 45 Climate change is now considered “most potent threat to the sustainability of global water resources”. 46 The river flows has been found in squeezing mode in some regions under the influence of climate change including Indus Basin which is situated in most climate change affected area. Both India and Pakistan share the major portion of the Indus Basin water resources under the IWT.

Many have contended for re-negotiation of the IWT after sixty years of its working especially on the ground that the treaty “does not reflect all of the main and future challenges” 47 such as the climate change, population growth, environmental flow needs, transboundary aquifer management, and growing water needs in the Indus Basin. Does the IWT need a relook in view of new approaches to shared transboundary water resources in the era of climate change in the Anthropocene age? For instance it has been argued that “using a benefit-sharing approach rather than an engineering river-dividing approach to water management between the two countries under the Indus Water Treaty could be considered as a way to deliver mutual benefits” 48

Since there is no provision in the IWT for unilateral withdrawal, reneging from the treaty commitment could only be on the ground of ‘fundamental change of circumstances’, as permissible under Article 62 of the 1969 Vienna Convention of Law of Treaties (VCLT). 49 The IWT was crafted before the VCLT. Since it contains this time-tested principle of customary law, it can still be applicable to IWT. However, the threshold laid down in Article 62 is too tough for any of the parties to meet. Therefore, as underscored in 2014 by this author:

A treaty such as IWT is not an ideal but based upon consensus-ad-idem. It is a result of comprises required to be struck between the states at a given time in history. In fact, treaties are not panacea but mere instrumentalities for the sovereign states to arrive at need-based compromises at a given time in history. Hence, the IWT represents a treaty-based method for transboundary water sharing arrangements. As it has been aptly summed up by Berber:

Notwithstanding the above possibility, in view of current realities of virtual freezing of bilateral relations between India and Pakistan, prevailing international political environment and domestic public opinion, any review of the IWT seems to be a remote possibility. In fact, it would not be a practical course of action especially since India (as well as Pakistan) is unable to fully use the existing waters availability under the IWT. Since advent of the IWT in 1960 itself was an outcome of India’s large heartedness towards a nascent breakaway state of Pakistan, it befits India’s stature not to be swayed by any thought of reneging from the treaty. In the sagacious and poetic words of the former Indian Prime Minister, Atal Behari Vajpayee, it is truism to underscore that: “With a small mind you cannot become great; with a small heart you cannot stand tall” 52

In order to harness huge hydro potential of shared water resources in the Indus Basin, the IWT parties shall have to learn from the world history. After the passage of 60 years (1960– 2020), they need to rise to the occasion to consider joint designing and implementation of hydroelectric projects. It will help them to take a holistic hydrological view and maintain environmental integrity of the Indus Basin without compromising common developmental needs of the riparian states. In order to do so, onus would lie on India as the largest democracy, with one-sixth of the world population and an emerging global power, to bring about behavioral change in the belligerent Pakistani establishment. India needs to stick to the current moral high ground it has taken in the global forums to respond, in a carefully calibrated way, to all types of ‘pin-pricks’ by the Pakistani establishment.

10 Conclusion

It appears, India needs to become the global solution provider even as it has assumed the 2021-2022 non-permanent seat at the horse-shoe table of the United Nations Security Council. The Indian ‘priorities’ 53 2021-2022 document does promise a vision for international peace and security guided by (i) dialogue and cooperation (ii) mutual respect and (iii) commitment to international law.

In view of this futuristic Indian threshold, it makes great sense to respect the majesty of International Law and adhere to the sanctity of the IWT. Notwithstanding harsh reality of the dwindling water flows in the Indus Basin due to the climatic changes, any revision or review of the IWT will need to wait till a future date. It will necessitate the geo-political conditions to become ripe and dawning of realization in Pakistani establishment as regards the shared destiny for the neighbors living in such a close proximity.

Possibly, it will require India to take the lead from the front to bring the review of the 1960 IWT, especially in the light of the climatic changes, to the negotiation table at an appropriate time. For the time being, it needs to be celebrated that the IWT has stood the test of time for six long decades. It will necessitate a common understanding and sagacity among the Indus Basin riparian states for the future betterment of the common hydrological resources in the interests of their teeming millions of citizens. Only time will provide us the answer as to how long will it take for inevitability of this idea to materialize.