Revisiting Indus Waters Treaty 1960 in the context of UNWC

Transcription

1 Revisiting Indus Waters Treaty 1960 in the context of UNWC UNWC Symposium University of Dundee Hamid Sarfraz 7 June 2012 International Union for Conservation of Nature, Pakistan

2 Story begins Government of India Act 1935 water as a provincial jurisdiction 1941 Indus Commission to resolve dispute between Punjab and Sindh partition of Indian Subcontinent 6 rivers flowing to Pakistan and 2 major head works in Indian territory Standstill Agreement (18 Dec 1947) pre partition allocation of water in the Indus Basin irrigation system would be maintained [Rights of Prior Appropriation] India shuts canals entering Pakistan on 1 Apr 1948 [Absolute territorial sovereignty] Inter Dominion Agreement (4 May 1948) Pakistan to pay for water from Eastern Rivers, though under protest Pakistan intended to go to ICJ but India didn t agree 2

3 The World Bank saga 1951 David Lilienthal, Ex Chairman, Tennessee Valley Authority visits India and Pakistan 1951 David Black, WB President gets interested 1952 Working Party (comprising engineers) to discuss options 1960 Indus Basin Development Fund Agreement $ m; mainly contributed by UK and US Indus Waters Treaty signed on 19 Sep 1960, effective 1 Apr 1960; ratified in Jan 1961 WB one of the signatories 3

4 Indus Rivers System/Basin Area 120 m ha Irrigates 20 m acres Eastern Rivers 33 MAF Western Rivers MAF 215 million people 4

5 Outline as per Analytical Framework Scope Preamble Article I: Definitions Article XI: General Provisions Annexure A: Exchange of Notes between Govt. of India and Govt. of Pakistan Substantive Rules Article II: Provisions regarding Eastern Rivers Annexure B: Agricultural Use by Pakistan from Certain Tributaries of the Ravi Annexure H: Transitional Arrangements Article III: Provisions regarding Western Rivers Annexure C: Agricultural Use by India from the Western Rivers Annexure D: Generation of Hydro Electric Power by India on the Western Rivers Annexure E: Storage of Waters by India on the Western Rivers Article IV: Provisions regarding Eastern Rivers and Western Rivers Procedural Rules Article V: Financial Provisions Article VI: Exchange of Data Article VII: Future Co Operation Article X: Emergency Provisions Article XII: Final Provisions Inst. Mechanisms Article VIII: Permanent Indus Commission Dispute Avoidance & Resolution 5 Article IX: Settlement of Differences and Disputes Annexure F: Neutral Expert

6 Scope Closed bilateral treaty as compared to UNWC [Art. 4] Covers navigational use as well Sticks to watercourses approach UNWC Art. 3.1 encourages rethinking IWT Legal reach Eastern Rivers Sutlej, Beas and Ravi Western Rivers Indus, Jhelum and Chenab All tributaries and lakes contributing to the Rivers Parties (Preamble) Government of India Government of Pakistan Definitions (Art I) Article, Annexure, Tributary, Indus, Jhelum, Chenab, Sutlej, Beas, Ravi, Main, Eastern Rivers, Western Rivers, the Rivers, Connecting Lake, Agricultural Use, Domestic Use, Non Consumptive Use, Transition Period, Bank, Commissioners, interference with the waters, Effective Date. 6

7 Substantive Rules Article II: Provisions regarding Eastern Rivers Unrestricted use by India Pakistan allowed for non consumptive, domestic and limited agricultural use (Annex B) Unrestricted use of leftover river flows by Pakistan but no claim or rights Transition Period of 10 years (Annexure H) to allow unrestricted use by Pakistan on historical trends Article III: Provisions regarding Western Rivers Unrestricted use by Pakistan India allowed for non consumptive, domestic, limited agricultural use (Annex C), and hydro power generation (Annex D) Limited storage allowed to India (Annex E) 1.25, 1.6 & 0.75 MAF for general, power & floods, respectively Article IV: Provisions regarding Eastern Rivers and Western Rivers 7 No harm principle Prior information Pollution control Water apportionment rather than water sharing In contravention of equitable use & optimal utilisation Domestic, human and industrial needs may need redetermination in line with UNWC Articles 6 and 10 No harm vis-à-vis significant harm

8 Procedural Rules IWT lacks environmental and ecological considerations but EIA has been called for by PCA in Kishenganga case No abstinence [UNWC Art. 14(b)], but interim order Article V: Financial Provisions India to pay m as replacement to Eastern Rivers waters in 10 yearly instalments during Transition Period to be paid to IBDF India to receive compensation from IBDF if Transition Period extended on request of Pakistan around 3.2 m annually Article VI: Exchange of Data Monthly exchange of daily data on flow, extractions, withdrawals, escapages and deliveries. Article VII: Future Co Operation Allowing hydrological and meteorological stations on other party s expense Article X: Emergency Provisions Good faith principle Article XI: General Provisions Exclusiveness of the Treaty to Indus waters Article XII: Final Provisions Treaty can be modified by mutual consent through a ratified treaty Treaty can be terminated by mutual consent only through a ratified treaty 8

9 Institutional Mechanisms Article VIII: Permanent Indus Commission Consists of Commissioners of Indus Waters, to be appointed by both parties. Both Commissioners as representatives of the governments, authorised to take decisions, to be assisted by 2 advisors They have privileges and immunities under Convention on the Privileges and Immunities of the United Nations, 1946 Minimum one meeting, alternatively in India and Pakistan, every year Annual Report of the Commission as of 31 March, to be submitted by 1 June every year Mandatory, rather than optional institutional mechanism Mechanism worked well, even during wars, but is becoming less effective in the wake of complexity of changed scenarios 9

10 Dispute Avoidance and Resolution [1/2] Article IX: Settlement of Differences and Disputes Commission to decide the course of settlement. In case of disagreement between the Commissioners, issue to be referred to a Neutral Expert, to be appointed by WB (Annex F). If the Neutral Expert declares it a dispute, it can be resolved by Negotiators appointed and mutually agreed by both Parties. Court of Arbitration (Annex G), comprising of Two arbitrators to be appointed by both Parties Three arbitrators/umpires, including: Chairman of the Court of Arbitration who may, but need not, be engineers or lawyers. Highly qualified engineer. Person well versed in international law. 10

11 Dispute Avoidance and Resolution [2/2] Standing Panel of Umpires having 4 person in each of the above categories Indus Water Treaty to be the applicable law, but also: International conventions establishing rules which are expressly recognized by the Parties. Customary international law. Incremental approach to resolve issues with an emphasis on mutual agreement UNWC Art. 33 contrasting interpretation by Pakistan and India the mechanism provided therein was not binding Article 33, on dispute settlement, contained an element of compulsion 11

12 Changed scenario Climatic variability and uncertainty Environmental flows Rapid population growth threefold since treaty signing High rate of groundwater extraction Expansion of agriculture and introduction of new rabi crop varieties Increasing energy needs Populist perceptions Pakistan Afghanistan waters Increasing regionalism Globalisation of issues 12

13 UNWC and Pakistan IWT working well, so why UNWC? Mutual reciprocity and trust deficit between two states Both countries abstained on account of Pakistan Articles 2, 7, 23 and 33 India Articles 3, 5, 32, and 33. Perceived over commitment by the ratifying party A strong and capable foreign service vis à vis weak technical ministries Lack of awareness, even amongst water experts and policy makers Lack of capacity to understand pros and cons, and even the text Treaty congestion? 13

14 Conclusion Still partially relevant and viable with a need to align with new realities Divisive nature, hence equitable and reasonable utilisation is elusive Failure to cope with hydrological extremes Lack of environmental protection, preservation and management Comparative strength no harm principle third party arbitration due ratification for modification or termination Possible cooperative water management through joint research in the areas of climate change, hydrogeology, glaciology, and geo informatics through GIS based data collection and sharing systems Mutual understanding and agreement on a timeframe for storage and release of water in a mutually beneficial manner joint adaption strategy to offset the impacts of climate change Catering the environmental flow needs Joint water development and energy generation Ratifying UNWC? 14

15 thanks a lot hamid.sarfraz@iucn.org International Union for Conservation of Nature, Pakistan 15