Let diplomacy flow

General Studies Paper 2

Context:

Pakistan Prime Minister has expressed the desire for a diplomatic handshake from across the border.

India-Pakistan Relations:

• With the partition of British India, two separate nations, India and Pakistan were formed.
• Since the very beginning, the immediate violent partition, wars, terrorist attacks and various territorial disputes overshadowed the connection.

Indus Water Treaty(IWT):

• IWTis a water-distribution treaty between India and Pakistan, brokered by the World Bank (WB), to use the water available in the Indus River and its tributaries.
• It was signed in Karachi in 1960 by then-Indian PM Jawaharlal Nehru and then-Pakistani president Ayub Khan.
• The Treaty gives control over the waters of the three “eastern rivers” – the Beas, Ravi and Sutlej (BRS)- to India.
• Control over the waters of the three “western rivers” – the Indus, Chenab and Jhelum -has been given to Pakistan.
• India has about 20% of the total water carried by the Indus system while Pakistan has 80%.
• The treaty allows India to use the western river waters for limited irrigation use and unlimited non-consumptive use for such applications as power generation.
• India has the right to generate hydroelectricity through run-of-the-river (RoR) projects on the western rivers which, subject to specific criteria for design and operation, is unrestricted.
• The dispute redressal mechanism provided under the IWT is a graded 3-level mechanism.
• Under the IWT, whenever India plans to start a project, it has to inform Pakistan.
• The concerns have to be cleared at the levels of the Indus Commissioners → Neutral Expert → Court of Arbitration, in a graded manner.

Issue of hydroelectric projects:

• Pakistan has reiterated desire for third-party mediation
• India has reinforced to revisit the Indus Water Treaty (IWT).

India’s stand:

• India claimed that the “intransigence” of Pakistan had made the communication channels over shared waters defunct.
• India: Due to the “Material breach” of the agreement, it would like to “update the Treaty.
• India has given a 90-day notice to Pakistan.
  • It has opened space, both legally and politically for:
    • discussing
    • debating
    • interpreting
    • analyzing the fault lines of water diplomacy of both countries.
  • Parliamentary standing committee report(2021): It suggested renegotiating the Treaty.

India’s stand on treaty:

• India has adopted the moderate approach of not terminating but modifying the IWT.
• India has attributed the “material breach”to Pakistan’s unilateral decision to approach the Permanent Court of Arbitration
  • It bypassed the mandate of Indus Commissioners.
  • India boycotted this hearing.
• India claims. Pakistan has violated the dispute settlement mechanisms, as mandated by Articles 8 and 9 of the Treaty.
• Article 8 specifies the roles and responsibilities of the Permanent Indus Commission — a regular channel of communication for matters relating to the implementation of the Treaty.
• Article 9: for addressing any difference or dispute that might emerge between the two countries.

Article 9 of treaty:

• It offers a graded pathway to address any issue related to the implementation or interpretation of the IWT.
• It provides for the appointment of a neutral expert in case there is a lack of consensus among the Commissioners.
• If the neutral expert believes that the difference should be treated as a dispute, it can be referred to the Court of Arbitration.
• The Commission has to report the facts to the two governments.
• The report must state:
  • Points of concord in the Commission
  • The views of each Commissioner on these issues
  • Mention the issues of disagreement.
• Only after receiving a report can either of the governments address the issue bilaterally or through the Court of Arbitration.

International laws:

• Article 60 of the Vienna Convention on the Laws of the Treaties: A party can criticize an agreement and give notice of its intention to terminate it if the other party violates its fundamental provisions.

Contest in projects:

• Kishanganga Hydel Power Project (Neelam in Pakistan):
  • The Court of Arbitration gave a partial award on the project.
  • It upholded India’s right to divert water for the project.
  • The Court refused to set a bar on the release of water, as demanded by Pakistan.
  • It restrained KHEPfrom environmental considerations.
• Ratle project on the Chenab River:
  • On Grounds of design and violations of the IWT.
  • The project was delayed but work resumed on it in 2019.
  • Pakistan asked the World Bank to establish a Court of Arbitration to look into the project.
  • The Bank has started a parallel process for appointing a neutral expert.
  • India objected to this process, claiming it was a unilateral move.

Way Forward

• The significance of the “material breach” and calls for terminating the Treaty should be seen in context of article 9 of treaty.
• The practice of diplomacy and the use of law for explaining and justifying government actions are equally important.
  • The reasoning put forward by India and Pakistan requires scrutiny.
• Ecological and economic concerns are also important to understand the diplomatic fault lines
• Pakistan has shown a penchant for third-party mediation, arguing that this could be the best route for overcoming the impasse in the relations between the two countries.
• Technically-negotiated agreements are only partial solutions and can put incremental strains on trans boundary rivers and their ecosystems for years.
• The two countries should use bilateral dispute settlement mechanisms to discuss the sustainable uses of water resources.
• Article 7 of treaty: It talks about future cooperation — discussing and broadening transboundary governance issues in holistic terms.
  • It could be the starting point for any potential diplomatic handshake.