Gautam Sen
Pakistan National Assembly (PNA)`s Committees on Foreign Affairs and Power have passed a resolution by consensus on 21st January, 2017 enjoining on India not to initiate construction of the Ratle project on Chenab River and halt further activities on the Kishenganga project on the Jhelum, till a Court of Arbitration (CoA) is activated on Pakistan`s request. Pakistan has raised objections on storage facilities on the Indian side and even in regard to its non-consumptive use on the upper reaches of these western rivers. Pakistan has objected to the design attributes of these dams, highlighting that they militate against downstream flows to which it is entitled under the Indus Water Treaty (IWT). Earlier, the World Bank (WB) – a guarantor of the IWT, had at Pakistan`s behest, decided to move towards activating a CoA as well as refer the matter to a neutral expert for resolving the differences-cum-disputes. The CoA mechanism is actually tenable within the scope of the IWT when a difference between the contracting parties, cannot be resolved by a neutral expert. The neutral expert and CoA options can only be resorted to in that sequence, in the context of failure of both the countries to resolve disputes within the institution of the Permanent Indus Commission (PIWC).
The PNA Committees` resolution had broad-based political support including from parties like Imran Khan`s Tehrik-i-Insaf, with some of the members opining that the dispute between India and Pakistan on water resources, has reached an alarming proportion and could dwarf the Kashmir dispute. A special invitee to the deliberations of the PNA Committees, Ahmer Bilal Sufi, a lawyer of international repute, has opined before the joint parliamentary body that India cannot unilaterally scrap the IWT. Sufi went on to state that, another treaty would have to be concluded to negate the existing IWT or parts thereof, if international laws and conventions in the matter were not to be violated. Furthermore, Sufi mentioned that, India was obligated to maintain a minimum level of water in the Indus system.
In the above-referred backdrop, India may weigh its options vis-a-vis the IWT while simultaneously stepping up the legitimate usage of the Indus waters to which it is entitled to. If India begins creation of its permissible storage facilities in a planned time-bound manner, this will give a signal to Pakistan on India`s determined approach in the matter and also of its intentions to adhere to the IWT while extracting its legitimate benefits. Such action is likely to induce it to desist from indulging in international machinations and realize the futility of such efforts towards dissuading India from storing 3.6 million acre-feet of water to which it is entitled to within the scope of the IWT. The Pakistani international expert referred to above, had earlier interestingly mentioned that, though India as the upper riparian was expected to act as a trustee for the lower riparian ie. Pakistan, to preserve the catchment area in the former`s territorial jurisdiction in the interest of protecting the overall flow, Pakistan was also obligated to protect its catchment area and economically utilize its share of the water, which the latter has not done. Thereby, Sufi implied that Pakistan`s failure to create storage facilities feasible in its jurisdiction and consequently allow a part of the Indus system`s water to flow through wastefully, had only undermined its claim of being adversely affected by India`s action upstream.
Ian J. Solomon, the World Bank representative visited India on 17th January this year, as part of their understanding process on the latter`s stand on the issues raised by Pakistan. While India is reported to have made its position clear apropos the IWT provisions inter-alia conveying objection on the premature invoking of the CoA mechanism at this stage, it may be necessary on the part of New Delhi to reiterate that India has no intention to resile from its obligations vis-à-vis the IWT. This may be appropriate considering that Pakistan had tried to derive international mileage in the backdrop of so-called hints from authoritative circles in the Indian Government of putting the PIWC institutional arrangements in a temporary freeze after the Uri incident in September last year. India may also consider raising the point on whether optimum opportunities available to Pakistan on feasible storage is being resorted to in its riparian territory along the Neelum-Jhelum basin and even downstream areas. In fact, Sufi had pointed out Pakistan`s wasted opportunities to the extent that, while India has constructed more dams in a smaller catchment area as compared to that of Pakistan, the latter has constructed only two effective dams on the Indus rivers passing through 2000 km of Pakistani territory.
An issue of concern for both the countries is the gross volume of discharge in the Indus system today as compared to that of 1960 when the IWT was concluded. These are related to changing environmental factors. A parallel approach may be to start the process of appraisal at the technical level, and on a low key, on this issue. While a mutually acceptable assessment may not be readily arrived at, owing to the political overhang of India-Pakistan relations and their impact on the technocrats and engineers, such efforts may eventually set in motion a gradual understanding of the limitations on either side to accede to each others demands, beyond a point. The framework of the IWT has served the interests of India and Pakistan for quite some time. However, the underlying geophysical and hydrological milieu has altered over the past 57 years. Therefore, there could be a case for India to invoke the public international legal doctrine of `rebus sic stantibus` and withdraw from the IWT. The doctrine also codified under Article 62 of the Law of Treaties under the Vienna Convention, allows a contracting party to withdraw from a treaty if it becomes inapplicable owing to fundamental change in circumstances or underlying conditions between those prevalent at the time of concluding the instrument and the substantially changed conditions later. But would it be in India`s strategic interests to do so ?
(The author is a retired IDAS officer who had served in an Additional Secretary-level post in Jammu & Kashmir.)
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