I first worked on the Indus Waters Treaty 1960 back in 2017 when I wrote a dissertation for my graduate degree on the water conflict between India and Pakistan. Back then, the Indian Prime Minister, Narendra Modi, was threatening Pakistan with unilateral revocation of the Treaty.[1] Several authors, much more esteemed than myself, wrote articles about how the Treaty could not be unilaterally revoked.[2] Ahmer Bilal Soofi preceded all of us by authoring an article in Dawn in 2016 about how the Treaty could not be revoked unilaterally due to Article 12 (4).[3] Under this provision, both States must terminate the Treaty through another ratified treaty.[4] One would hope that the legal discussion would have come a long way from Article 12(4) of the Treaty in the last 7 or so years… and it has. We have moved on from discussing Article 12(4) to Article 12(3)[5] – the Indus Waters Treaty cannot be unilaterally … drumroll…. amended!
Akin to Article 12(4), Article 12(3) also states that the Treaty can only be modified through another duly ratified treaty. Since, it does not require much legal expertise to open the Treaty and read its main text; as soon as India started issuing statements about amending the Treaty, Pakistan jumped at the opportunity to clarify – in all its legal wisdom – that Article 12(3) protects us against unilateral revocation.[6] Problem solved!
But wait, why are Indian newspapers saying that India wants to review it in conjunction with Pakistan? There is something in the papers along the lines of “seeking a review and modification” and “government to government negotiations to rectify material breach of the treaty”.[7] This is possible under Article 12(3), as discussed above, to modifying the Indus Waters Treaty by ratifying another treaty amending the text of the same. The Attorney General of Pakistan’s office said that a unilateral amendment was not possible. Now India is requesting negotiations. Most of the scholarship in Pakistan on the Indus Waters Treaty proposes amendments to the Treaty as the way forward for both countries. Since the opportunity has finally arisen to do so, why are we holding back? Entering into negotiations is the biggest challenge Pakistan has faced with India so far whenever the subject of amendments in the Treaty has been brought up. Now that India itself wants to bring us to a table and initiate a diplomatic process that can potentially result in a win-win situation, why are we bent on pursuing another never-ending litigation in the Permanent Court of Arbitration over seeking diplomatic resolutions that may result in long-term solutions? We are the lower riparian after all – the flow of water in our country is controlled by the upper-riparian India. There are developments in the body of international environmental law and international transboundary water law that are not adequately reflected in the Treaty. We have, time and again, criticized the Treaty for being sub-optimal, too technical, inconsistent with prevalent international law principles such as equitable sharing of resources and protection of shared resources, and for inculcating a dispute resolution process that results in more grievances for Pakistan than reliefs.
How about we step into an alternate reality for a moment? What if Pakistan responded to India’s notice and agreed to bilateral negotiations to amend the Treaty under Article 12(3)? What would be the main points that Pakistan would want to bring up in these discussions in an effort to at least attempt to bring a better Treaty in place between the two countries? I foresee the following main topics of discussion:
- Currently, the eastern rivers are to be absolutely used by India with restricted use by Pakistan and the western rivers are to be used absolutely by Pakistan with restricted use by India. This goes against the principle of equitable (as opposed to equal) distribution of rivers – equitable use would be determined on the basis of the needs of each country with external factors other than geography being considered. The current arrangement also makes it difficult to ensure the protection of the basin by both countries – which is a mutual obligation under international customary law on India and Pakistan. Amongst its several flaws is the fact that the Treaty currently divides the basin into eastern and western rivers and ensures the division of waters without providing for the protection of the environment or ensuring maximum use without depleting the resources in the long run. This arrangement could be revised.
- Article 9 of the Treaty provides that consultations may be held when a question arises over the interpretation or application of the Treaty.[8] But when a dispute arises with respect to the basin which is not covered by the Treaty, then the treaty does not provide for a dispute resolution mechanism. This could be amended to include dispute resolution vis-à-vis the Indus basin under the Treaty, even if the rights arise under customary international law. This will only help Pakistan. Customary international law protects the rights of the lower riparian State and thus Pakistan would stand a better chance of negotiating its position under the principles of international law. Especially when it comes to arbitrations, the arbitrator cannot derive powers beyond the text of the treaty, leading to the role of customary international law facilitating interpreting the treaty, and not being able to stand on its own legs to make an independent argument. In this regard, the Permanent Court of Arbitration held in the Kishenganga Arbitration Award that the Court had no jurisdiction to overrule express terms of the Treaty and therefore, where Annexure D, Paragraph 15(iii) had allowed for the diversion of rivers to India, customary international law could not overrule those provisions to “substitute” the provisions of the treaty.[9] Therefore, amending Annexure D, Paragraph 15(iii), which pertains to diversion, is advisable for Pakistan. Furthermore, the inclusion of a clause which provides for customary international law to supplant, as opposed to supplement, the Treaty could also be considered.
- The dispute resolution mechanism, which is non-hierarchical at the moment, also could be revised to be more efficient and less time-consuming. The Treaty sets up a Permanent Indus Commission (PIC) which may, inter alia¸ play a role in resolving questions that may arise under the Treaty. If a question cannot be resolved through the PIC or mutual agreement, it turns into a difference, which may also be resolved through the PIC or a neutral expert. If a difference cannot be resolved, it turns into a dispute, which may be resolved either by the PIC or by a court of arbitration or other means deemed sufficient by the PIC. There is no appeal envisaged in this scheme and the dispute resolution mechanism is repetitive and designed in such a way that frustration of the process becomes imminent before any fruitful results may be obtained.
- The jurisdiction of the International Court of Justice, which is currently not envisaged in the Treaty, could also be negotiated to be brought in as a mechanism of dispute resolution.
- Given the recent discussion on the imminence of water wars, Pakistan and India could also settle upon an arrangement that would withstand any conflict within or beyond State borders to protect the interests of both States, should the worse come to be.
These are only some suggestions that a novice like myself can come up. Experts in the field must have better, stronger and more concrete suggestions that can pave a way forward for Pakistan to design its negotiation strategy with India on the Indus Waters Treaty. As the lower riparian State, bringing India to the negotiating table has been a challenge for Pakistan in the past decades. Now that the opportunity has provided itself, it must not be ignored. While renegotiating the Treaty with India, Pakistan can hope for more favourable terms in the text of the potentially revised treaty. Granted India will also try to reap maximum benefit for itself out of this opportunity, but that is always the case in bilateral relations between sovereign States. Giving up on this opportunity would mean waiting for another one to come by … which may or may not happen in the near future. One thing will happen for sure, and has been happening in the past, the dispute resolution mechanism under the Treaty will continue to disappoint Pakistan and the authors writing on the subject will continue to criticize the Treaty in times to come – for being sub-optimal, for being outdated, and for not matching standards which are emerging, evolving and in dire need of implementation, especially to protect the interests of lower riparian States such as Pakistan.
References
[1] “Blood and Water Cannot Flow Together: PM Modi at Indus Water Treaty Meeting,” The Indian Express (blog), September 26, 2016, https://indianexpress.com/article/india/india-news-india/indus-water-treaty-blood-and-water-cant-flow-together-pm-modi-pakistan-uri-attack/.
[2] “Is Unilateral Revocation of the Indus Water Treaty Permissible Under International Law?,” November 22, 2018, https://www.jurist.org/commentary/2018/11/sufyan-zia-revocation-indus/.
[3] ANI, “India Cannot Revoke Indus Waters Treaty Unilaterally: Pak Lawyer,” September 27, 2016, https://www.business-standard.com/article/news-ani/india-cannot-revoke-indus-waters-treaty-unilaterally-pak-lawyer-116092700713_1.html.
[4] Article 12 (4), Indus Waters Treaty 1960: The provisions of this Treaty, or the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.
[5] Article 12 (3), Indus Waters Treaty 1960: The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.
[6] “Indus Waters Treaty Can’t Be Modified Unilaterally: Pakistan,” accessed February 20, 2023, https://www.thenews.com.pk/print/1035009-indus-waters-treaty-can-t-be-modified-unilaterally-pakistan.
[7] “Indus Water Treaty: India Seeks Negotiations With Pakistan Over Material Breach,” Zee News, n.d., https://zeenews.india.com/india/indus-water-treaty-india-seeks-negotiations-with-pakistan-over-material-breach-2568967.html.
[8] Article 9 of the Indus Waters Treaty 1960 pertains to “Settlement of Differences and Disputes”.
[9] Indus Waters Kishenganga Arbitration (Pakistan v. India) 2013.
