The Indus Waters Treaty (1960) has not been immune to the vicissitudes currently affecting India-Pakistan relations. In the aftermath of the attack by Pakistani terrorists on an Indian Army camp in Uri on 18 September 2016, the Government of India (GOI) has indicated its decision, at the highest level, to comprehensively review the functioning of the Treaty. India has been a scrupulous adherent to the Treaty over the past 56 years despite the periodic conflictual relations it has had with Pakistan. In the past, India has responsibly reacted to issues raised by Pakistan on India`s water usage in the Indus basin and tried to resolve them within the legal ambit of the Treaty.
GOI is reportedly contemplating the suspension of the mechanism of the Permanent Indus Waters Commission (PIWC) set up under Article VIII of the Treaty. The PIWC is intended to act as a first-tier bilateral review platform for the two signatories to monitor its implementation, exchange and evaluate data on water usage, works impinging on the water flows, drainage, storage, etc. of the Indus system (apropos Article IX) and deliberate on issues which may arise incidental to the Treaty’s functioning. India and Pakistan each nominate a senior technical expert in the realm of hydrology and water usage (normally not below the rank of chief engineer) as the Indus Commissioner. The Indus Commissioners constitute the PIWC. The PIWC meets at least once a year. The last meeting was held on 16 July 2016.
If the GOI were to implements its latest decision on deactivating its representation in the PIWC, that may be construed as a violation of the Treaty. It would in all probability make Pakistan invoke the dispute resolution mechanism which would involve a neutral expert to consider issues under Article IX (2) and, thereafter, even a reference to a Court of arbitration apropos sub-clause (5) of the said Article. This would likely be on the ground that India is impeding the observance of an in-built provision of the Treaty by obstructing the functioning of the PIWC – an integral operative institution within its fold. Pakistan has raised many issues against India in the past relating to the so-called excess storage proposed to be created by the latter under the Tulbul navigation project on the Jhelum river and adequacy of water discharge through the western rivers, among others.
If India were to shut off an institutionalised mechanism for mutual communication like the PIWC, Pakistan will further malign India on the bona fide activities the latter undertakes within the scope of its obligations and legitimate benefits accruable under the Treaty. Furthermore, it is important to mention that even in respect of the eastern rivers of the Indus system (fully allocated to India under the Treaty),there are some stretches where the flows of the eastern rivers may not be totally immune to hydrological interference by Pakistan. For instance, the waters of the tributaries of the Sutlej and Ravi flow in some stretches through Pakistan and merge into portions of the main rivers flowing through India before finally entering Pakistan. All diplomatic demarches and disputes on such matters, should they arise, may become intractable and difficult to resolve, if the first-tier mechanism of PIWC were to be deactivated.
There is a basic purpose for which a mechanism like the PIWC was built into the Treaty. It is the first tier where hydrological engineers are expected use their techno-economic acumen in a cooperative spirit to arrive at an agreed view or give their analyses on the differing views on interpretation of water flow and usage data, incidental structures constructed or planned in the Indus basin, etc., and submit a report annually by June 1 pertaining to the previous financial year to the two governments. In the event the PIWC is unable to proceed because of differences between the Indus Commissioners or if there is a delay in arriving at decisions by a Commissioner or both, there is a provision for attempting a political solution. However, the idea of the initial negotiators of the Treaty was that mutual cooperation and understanding should be feasible at the PIWC level itself.
The statement of the spokesperson of the Ministry of External Affairs (MEA) on 22 September 2016 indicates that differences have arisen between India and Pakistan on the Treaty, and cooperative arrangements vis-a-vis the Treaty like the PIWC are likely to be affected because of lack of trust. The moot point now is whether India’s overall interest would be served by deactivating or downgrading a key operative instrument of the Treaty when it is in its interest to continue to adhere to the Treaty provisions and try to obtain maximum benefit legitimately obtainable by subscribing to it.
From the point of view of India`s overall interests and factoring in the power sector development and agricultural and allied sectoral needs of Jammu & Kashmir, it may be appropriate to plan more efficacious water usage arrangements under the Treaty and, thereafter, adhere to our stand determinedly in defence of the consequent measures taken. For instance, projects like Tulbul (in Baramula district near Sopore)have been in cold storage since 1987 owing to Pakistan`s protestations. This, despite India’s rightful stand, that the regulation of the depletion of naturally stored water for non-consumptive use is permissible under the Treaty. It is of the essence to reckon that any project of water regulation and usage in a state like Jammu & Kashmir requires at least a ten-year time-span to be successfully operationalised. It may be worthwhile to work with such a focus towards the realization of the water usage potential assigned to India under the Treaty, rather than retracting from some provision of this international legal instrument which is internationally acclaimed as a successful water-sharing arrangement between unfriendly neighbours.
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