Applicability of Indus Waters Treaty and Regulation of Transboundary Groundwater in the Indus Basin

Introduction

The Indus Basin is co-shared by Afghanistan, China, India and Pakistan. However, the Basin is mainly governed by the Indus Water Treaty (IWT) executed by Pakistan and India regarding transboundary water resources. It provides the Indus Basin’s governance framework covering the countries’ shares on transboundary water resources, the obligations of state-parties and the dispute resolution mechanism among the parties concerned.

As a freshwater resource, groundwater has been recognised as one of the most significant natural resources under international law. Globally, it is now relied upon as a freshwater source due to advance extraction technologies. Compared to the law on transboundary rivers, the international law governing these water resources has mostly been developed in the twentieth century. The development of this subject of international law has been nonlinear and is still evolving.

The Indus Basin, being a densely populated area co-shared by India and Pakistan, has generally been under discussion for water stress and the exponential exploitation of ‘transboundary groundwaters.’ This exploitation has raised concerns about the regulatory framework under the IWT and international law. It has been asserted that most international treaties on water resources, including the Indus Treaty, do not sufficiently cover transboundary groundwater.

This article investigates the IWT’s applicability on transboundary groundwaters in the Indian and Pakistani part of the Indus Basin by comparing it with the regulatory framework under international law on water resources.

Indus Basin and the Indus Water Treaty (IWT), 1960

This section shall cover the Indus River Basin, the sources of water and the shared groundwater in India and Pakistan.

Indus Basin

The spring of Singikabad, located at an altitude of 5,494 m,[1] 16Km north of Lake Mansarovar in Tibet (China), is the origin of the River Indus. From its origin in Tibet to its fall in the Arabian Sea, the River Indus covers a drainage area of 450,000 square miles and carries a 90 X 106 acre-feet of water.[2]

The Indus River Basin is shared by Pakistan, India, China and Afghanistan,[3] however, most of the Basin area is covered by India and Pakistan. Being the largest beneficiary, Pakistan covers 61% of the total Basin area while India occupies 29% of the total Basin area.[4] The rest of the area is shared by China and Afghanistan to the amount of 8%.[5] The majority of Pakistan’s population is dependent on the Indus Basin which provides water for 90%[6] of Pakistan’s food production.

Development of the Indus Basin

The British made[7] many arid lands irrigable, commencing in 1880 in Punjab (literally meaning land of five rivers). The five eastern tributaries of the Indus flowed through Punjab[8] and Punjab constituted a majority of the Indus Basin in British India. The British laid down the irrigation system in Punjab by building a series of perennial, all-season canals, with weirs installed on rivers to control water flow in these canals. The advanced irrigation system in Punjab also led to interprovincial water disputes between Punjab, Sindh, Bahawalpur and Bekanir (now Rajhastan) in British India.

Before Partition, various actions had been taken by the British to address the water concerns of all provinces. A Discharge Committee was established in 1921[9] to monitor statistical data on the impact of Punjab withdrawals on the flow of the Indus before its exit from Punjab. Based on the data about the flow of water from Punjab, the Anderson Commission (appointed in 1935 to settle regional differences about water)[10] recommended allocating water agreed upon by the parties. However, in 1939, Sindh raised issues before the Governor-General of India about a dam construction. The Rau Commission was constituted to address the issue between the provinces of Punjab and Sindh but the matter remained unresolved at the time of India and Pakistan’s independence.

The Indus Waters Treaty 1960

The independence of India[11] and Pakistan in 1947 involved the partition of the province of Punjab without addressing the issue of water distribution between the two newly constituted provinces. The Partition’s practical implementation was left to a commission to draw a boundary between Indian and Pakistani Punjab. The Commission presented the Radcliffe Award to partition Punjab.

The irrigation system had been developed in British Punjab as a single administrative unit. The Boundary Commission had to separate the irrigation system in Punjab based on the political boundary drawn on communal lines. Most of the headworks on the dependent canals in Pakistan were situated on the Indian side of Punjab[12] giving India control over water flow into Pakistani Punjab. Initially, a bilateral agreement had been agreed upon to assure Pakistan that water would not be withheld without allowing it to develop alternative sources.

The situation escalated into an international dispute[13] between the two newly independent dominions which was avoided by concluding the IWT in 1960 between the two countries. The World Bank offered its good offices for resolving the disputes between the two countries. The two countries agreed on a water resource sharing arrangement and other obligations as well as a dispute resolution mechanism. Salman et al., relying on other scholarly work, have commented that since the IWT does not provide[14] for the quantity of water allocation, it ‘merely reaffirms each state’s territorial sovereignty on the different watercourse’.

At one point in time, David E. Lithenal, former Chair of the Tennessee Valley Authority, visited India on his journalistic pursuits. Biswas notes[15] Lithenal’s idea about the Indus Basin in the following words:

“…the whole Indus system must be developed as a unit designed, built and operated as a unit, as is the seven-state TVA system back in the U.S.”

The idea was never appreciated by the state-parties involved.

The Indus Treaty has survived six decades and three wars between the nuclear-armed countries.[16] The Treaty has been under critical academic review as well. It has been highlighted[17],[18],[19] that the Treaty has no mechanism for governing transboundary groundwater in the Indus Basin.

Transboundary Groundwater in Indus Basin

The following is a brief overview of the transboundary groundwater and aquifers:

Overview of the Transboundary Groundwater

Groundwater is usually found in aquifers. Aquifers have been defined as ‘water-bearing soil or rock formation capable of yielding useable amounts of water’.[20] Some of these aquifers fall under one state’s exclusive jurisdiction and are commonly referred to as ‘state-owned aquifers’. Barberis states[21] that a state-owned aquifer is the kind of aquifer found in one state’s territory, having its recharge area within that particular state, with no hydrological link with any other state.

Barberis explains[22] the following types of aquifers shared by, and affecting, two or more states:

  1. First, a confined aquifer is not hydrologically linked with other water sources and is shared by two states as a natural resource. An internationally recognised political boundary separates these aquifers.
  2. Secondly, some aquifers are hydrologically linked with an international river, influent or effluent. The use of the international influent river in the upstream state may affect aquifer’s recharge in the downstream state. An aquifer’s overexploitation in an upstream state may affect the flow of the effluent river in the downstream state because the aquifer in the upstream state feeds the river. In such cases, the aquifers located in one state would only be considered linked to the international hydrologic system if their usage affects the hydrologic system’s water.
  3. Thirdly, separate aquifers may lie in two neighbouring states linked by a semi-permeable layer such as clay slime. The water may percolate from one aquifer to another due to a difference of the hydraulic load.
  4. Fourthly, there may be aquifers in one state having an area of recharge in a neighbouring state i.e. ‘mountainous area where the divorti-aquarum of surface waters does not coincide with that of groundwaters’.

Based on the geology of these aquifers, the aquifers are categorised[23] into confined and unconfined aquifers. Unconfined aquifers have been defined[24] as ‘aquifers that are not confined under pressure. The water level in a well is the same as the water table outside the well’. The confined aquifer is ‘trapped in the impermeable soil or rock’.

Groundwater Resources in the Indus Basin and Concerns

It has been noted that the Indus Basin hosts an extensive unconfined aquifer[25] that encompasses a surface area of 0.16 million km2.[26] An illustration of the groundwater in the Indus Basin is shown in Figure 1.

Figure 1
Illustrative map of groundwater sources in Indus Basin[27]

It has also been noted[28] that 6 million ha and 10 million ha of this water resource are fresh and saline, respectively. Based[29] on the water table maps from 2004, “…the groundwater flows from northeast to southwest in the Indus Basin.” Recharge and abstraction ratios have not been uniform across the Indus Basin, though up till 2000 they have been almost equal.[30]

The average safe groundwater yield had been estimated[31] to be around 63 billion-cubic-meters (BCM) and only 11 BCM was noted to be potentially remaining after abstraction.[32] The water table had also been more than 20 meters below ground level in northwest India and Punjab in Pakistan in the later studies.[33] In some locations, the water table is falling at a rate of more than 1 meter per year[34] which has raised serious concerns regarding the depletion of groundwater resources in the Indus Basin.

Besides the dangers of water depletion and scarcity, the increasing water pollution is also burdening the Indus Basin with chemicals, fertilisers and toxic materials.[35] These concerns have also been appreciated by the august Supreme Court of Pakistan in a public interest litigation case.[36] While emphasising on the construction of new water reservoirs, the Supreme Court highlighted the unsustainable use of groundwater caused by the unmonitored and unregulated pumping of water, draining aquifers in Pakistan.

It is submitted that such concerns about the depletion of transboundary groundwater in the Indus Basin may be adequately addressed by Pakistan and India, jointly. As noted earlier, it has been argued that the IWT framework does not govern transboundary groundwaters in the Indus Basin. The following is an investigation into the application of the provisions of the IWT.

The IWT and Transboundary Groundwaters

The Treaty distributes rivers in the Indus Basin based on their territorial flow and drainage. As Arora notes,[37] the Treaty arrangement can be referred to as a ‘water trade-off’. Following Punjab’s partition in 1947, instead of the waters of six rivers being apportioned, the rivers were partitioned again (in 1960). Miner et al. observe[38] that the Treaty points out the distribution of rivers but does not create a mechanism for the use of groundwater. Zawahri et al. and Rao also concur[39],[40] with this view and state that due to recent developments on the subject of groundwater, the IWT does not ‘explicitly contemplate the management of shared groundwater’.[41]

What Does the IWT Contemplate?

The IWT makes the Eastern Rivers (the Sutlej, the Beas and the Ravi)[42] and the Western Rivers (the Indus, the Jhelum and the Chenab)[43] available for unrestricted use by India and Pakistan, respectively. The Treaty has nominated these rivers explicitly and while defining the rivers has also included[44] the tributaries to the rivers and connected lakes.

The term ‘tributary’ has been defined to include every potential source of the surface channel (including some terms for water sources from the Punjabi language, e.g. nadi, nallah, nai, khad, cho) which flows to all the Treaty rivers. Nadi, nallah, nai are used interchangeably in Punjabi (the local language) and can be translated as water streams on the earth’s surface. Khad may be translated as a water channel usually formed in monsoon below the ground and emerging on the surface before falling into the river. Similarly, cho is used to refer to a water fountain erupting from the earth’s surface. It should be noted, though, that the definitions in the IWT do not include groundwater as a tributary to the rivers.

Optimal Utilisation and Not Causing Harm

The Treaty, in its Preamble, acknowledges bilateral cooperation to resolve the dispute of the Indus River system for its complete and satisfactory utilisation. Articles II and III of the Treaty explicitly acknowledge the rights of ‘domestic and non-consumptive use of water by riparian states’ on the distributed rivers. Article IV also expressly incorporates the obligations of state-parties to ‘not affect the flow of river channels’ by making any material change based on permissible non-consumptive use of water.[45] It also obligates state-parties to ‘not cause any material damage’[46] in the operations of storage dams, barrages and irrigation canals along with obligations to ‘prevent polluting river waters’.[47]

Future Cooperation

The Treaty provides for the future cooperation of state-parties for optimum development of rivers by establishing an institution such as the Permanent Indus Commission (PIC)[48] comprising two commissioners appointed by the Pakistani and Indian governments. The commissioners represent their governments in the PIC and serve as communication channels between the two governments. They are also responsible for furnishing or exchanging the information prescribed in the IWT and settling all questions arising between the state-parties.

Moreover, the commissioners have been assigned the responsibility to study and report any problem jointly reported regarding the development of river waters in the IWT. When reference is made on behalf of one state alone, an authorisation from the other state is to be obtained in order to proceed. The PIC is a significantly meaningful way to consider the unaddressed transboundary questions for river development in the Indus Basin under the IWT.

Comparison of IWT with Developments in International Law

The Helsinki Rules 1966[49] and the Seoul Rules 1986[50] (collectively called The Model Rules) articulated by the International Law Association (an unofficial and non-governmental organisation) formulated and presented the ‘drainage basin doctrine’[51] much time after the conclusion of the IWT.[52] The development of drainage basin doctrine had been contrary to the ‘Harmon doctrine’ which relied on exclusive state sovereignty within the state’s territory.[53]

The Model Rules also extensively influenced[54] the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 (UNWC)[55] and the Draft Articles on the Law of Transboundary Aquifers 2008.[56]

The Model Rules recognise the principle of ‘equitable utilisation’[57] of the watercourse and aquifers by the states sharing the Basin. The principle permits limited sovereignty over the transboundary watercourse by giving other riparian states a right to use it. The notion of equitable utilisation also puts an obligation to avoid interference with other nations’ use of the watercourse.

The UNWC defines watercourse as ‘a system of surface waters and groundwaters constituting a unitary whole and naturally flowing into a common terminus under their physical relationship’.[58] The UNWC, the only potentially universal treaty in force, includes groundwaters related to the drainage basin. However, it has been pointed out[59] that this convention does not apply to aquifers as they do not have hydrologic link to surface water.

On the other hand, the Draft Articles on Transboundary Aquifers 2008 recognise state sovereignty[60] over aquifers. They also accept aquifers with no hydrologic link to surface water, but the Draft Articles have yet to come into force. They define[61] an aquifer as ‘a permeable water-bearing geological formation underlain by a less permeable layer and the water contained in the formation’s saturated zone’.

The IWT identified and distributed only rivers as part of the transboundary watercourse. It admitted one riparian state’s exclusive sovereignty and granted limited domestic and non-consumptive usage rights to the other riparian state. The Treaty also envisioned future cooperation for optimal utilisation. However, the principles did not expressly extend to transboundary groundwater.

Rossi notes[62] that that the Indus Basin’s hydrological composition has not been well understood. The connections between surface water and groundwater in the Indus Basin is still unexplored. Whether or not the groundwater in the Indus Basin is hydrologically linked to the Treaty’s rivers requires further study into the subject. The IWT does not, however, expressly admit the possibility of groundwater being linked to surface water, neither does it expressly provide mechanisms and provisions to deal with groundwater in the Indus Basin.

Conclusion

This article has investigated the applicability of IWT 1960 provisions over transboundary groundwater in the Indus Basin. The Treaty framework does not explicitly provide any mechanism to deal with regulating transboundary groundwater.

The Indus Basin is a densely populated and highly stressed water zone. State-parties to the Indus Treaty can no longer overlook the exponential depletion of the Basin’s groundwaters. In Pakistan’s case, the situation becomes more severe as any material change to the water table across the Indus Basin affects its water availability.

Pakistan and India may jointly address the issues concerning transboundary groundwater in the Indus Basin by devising a joint mechanism under the Treaty’s auspices, which adequately envisions the future cooperation for the development of rivers. The Permanent Indus Commission institution has been functional since its inception and can devise a mechanism for regulating groundwater on common and mutual interest grounds.

Pakistan and India may also opt to ratify the UNWC 1997 to address groundwater depletion and contamination issues jointly. Moreover, they may choose to renegotiate the Indus Water Treaty to address the issues concerning transboundary groundwater. It is unfortunate that political tensions and discord preclude such changes from taking place in the Indus Basin.

Any proposal to regulate transboundary groundwater will depend on the political choices made by both states. Nonetheless, any future framework for regulating transboundary groundwater should emanate from understanding its significance with cooperation in a spirit of goodwill and friendship as envisaged in the Treaty’s Preamble.


References

[1] Chandrakant D. Thatte, ‘Indus Waters and the 1960 Treaty Between India and Pakistan’ in Olli Varis, Asit K. Biswas and Cecilia Tortajada (eds), Management of Transboundary Rivers and Lakes (Springer Berlin Heidelberg 2008), 168
[2] R. K. Arora, The Indus Water Treaty Regime (Mohit Publications 2007), 1
[3] Salman M. A. Salman, Conflict and cooperation on South Asia’s international rivers : a legal perspective (Law, justice and development series, World Bank 2002), 5
[4] Sadiq I. Khan and Thomas E. Adams, ‘Introduction of Indus River Basin: Water Security and Sustainability’ in Sadiq I. Khan and Thomas E. Adams (eds), Indus River Basin (Elsevier 2019), 3
[5] Ibid
[6] Asad Sarwar Qureshi, ‘Water Management in the Indus Basin in Pakistan: Challenges and Opportunities’ (2011) 31 Mountain research and development 252
[7] David Gilmartin, ‘Scientific Empire and Imperial Science: Colonialism and Irrigation Technology in the Indus Basin’ (1994) 53 The Journal of Asian Studies 1127
[8] supra Note 2, 2
[9] David Gilmartin, Blood and water: the Indus River basin in modern history (University of California Press 2016), 185
[10] Undala Alam, Water rationality : mediating the Indus Waters Treaty (Durham University 1998), 57
[11] The Indian Independence Act, 1947
[12] supra Note 10, 63
[13] Ibid. 68.
[14] supra Note 3, 61
[15] Asit Biswas, ‘Indus Water Treaty: The Negotiating Process’ (1992) 17 Water International – WATER INT
[16] Muhammad Uzair Qamar, Muhammad Azmat and Pierluigi Claps, ‘Pitfalls in transboundary Indus Water Treaty: a perspective to prevent unattended threats to the global security’ (2019) 2 npj Clean Water 22
[17] Neda Zawahri and David Michel, ‘Assessing the Indus Waters Treaty from a comparative perspective’ (2018) 43 Water international 696
[18] Sahana Rao, ‘Governance of Water Resources Shared by India and Pakistan under the Indus Waters Treaty: Successful Elements and Room for Improvement Note’ (2017) 25 NYU Envtl LJ [i]
[19] Mary Miner and others, ‘Water sharing between India and Pakistan: a critical evaluation of the Indus Water Treaty’ (2009) 34 Water International 204
[20] Raymond Lyle, ‘Whats is Groundwater?’ (Cornell University, 1988) <https://ecommons.cornell.edu/bitstream/handle/1813/3408/What%20is%20Groundwater.pdf?sequence=2&isAllowed=y> accessed 16 May 2021
[21] Julio Barberis, ‘The Development of International Law of Transboundary Groundwater’ (1991) 31 Natural Resources Journal
[22] Salman M. A. Salman, Groundwater : legal and policy perspectives (World Bank technical papers ; no 456, World Bank 1999), 140
[23] supra Note 20
[24] Ibid
[25] Muhammad Jehanzeb Masud Cheema and Muhammad Uzair Qamar, ‘Transboundary Indus River Basin: Potential Threats to Its Integrity’ in Sadiq I. Khan and Thomas E. Adams (eds), Indus River Basin (Elsevier 2019)
[26] Ibid
[27] International Groundwater Resources Assessment Centre, ‘Indus River Plain Aquifer’ (iGRACE, 2020) <https://ggis.un-igrac.org/view/tba> accessed 16 May 2021
[28] supra Note 6
[29] Cheema and Qamar, ‘Chapter 8 – Transboundary Indus River Basin: Potential Threats to Its Integrity’, 185
[30] Food & Agricultural Organisation of the United Nations, ‘Transboundary River Basin Overview – Indus’ (FAO, 2011) <http://www.fao.org/3/CA2136EN/ca2136en.pdf> accessed 16 May 2021
[31] supra Note 6
[32] Ibid
[33] Alan Macdonald and others, ‘Groundwater quality and depletion in the Indo-Gangetic Basin mapped from in situ observations’ (2016) 9 Nature Geoscience
[34] Ibid
[35] Abdul Rauf  Iqbal, ‘Environmental Issues of Indus River Basin : An Analysis’ (National Defence University Pakistan, 2013) <https://www.ndu.edu.pk/issra/issra_pub/articles/issra-paper/ISSRA_Papers_Vol5_IssueI_2013/05-Environmental-Issues-Abdul-Rauf-Iqbal.pdf> accessed 16 May 2021
[36] Barrister Zafarullah Khan v. Federation of Pakistan 2018 SCMR 2001 (Supreme Court of Pakistan)
[37] supra Note 2, 13
[38] supra Note 19
[39] Zawahri and Michel, ‘Assessing the Indus Waters Treaty from a comparative perspective’
[40] supra Note 18
[41] Ibid
[42] The Indus Waters Treaty, 1960, art I(5), (126 UNTS 6032)
[43] Ibid, art I (6)
[44] Ibid, art I (4)
[45] The Indus Waters Treaty, 1960, art I (11)
[46] Ibid, art IV (9)
[47] Ibid, art V (10)
[48] Ibid, art VIII
[49] International Law Association, The Helsinki Rules on the Uses of the Waters of International Rivers (ILA 1966)
[50] International Law Association, The Seoul Rules on International Groundwaters (ILA 1986)
[51] Dante A. Caponera, ‘Patterns of Cooperation in International Water Law: Principles and Institutions’ (1985) 25 Natural Resources Journal 563
[52] Asit Biswas, ‘Indus Water Treaty: The Negotiating Process’ (1992) 17 Water International – WATER INT
[53] Stephen C. McCaffrey, ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Praised Water Law’ (1996) 36 Nat Resources J 965
[54] Gabriel Eckstein and Francesco Sindico, ‘The Law of Transboundary Aquifers: Many Ways of Going Forward, but Only One Way of Standing Still’ (2014) 23 Review of European, comparative & international environmental law 32
[55] The convention entered into force in 2014.
[56] UNGA, Resolution A/RES/63/124, Draft Articles on the Law of Transboundary Aquifers, (UN 2008)
[57] supra Note 49, art IV
[58] UNGA, Resolution 51/229 The Convention on the Law of the Non-Navigational Uses of International Watercours (UN 1997), art 2(a)
[59] Gabriel Eckstein, ‘A Hydrogeological Perspective of the Status of Ground Water Resources Under the UN Watercourse Convention’ (2006)
[60] supra Note 56, art 3
[61] Ibid, art 2(a)
[62] Christopher R. Rossi, ‘Blood, Water, and the Indus Waters Treaty’ (2020) 29 Minn J Int’l L 103

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Maroof Mittha

Author: Maroof Mittha

The writer is an LLM Candidate (20/21) for International Energy Law and Policy from CEPMLP, University of Dundee. He is a qualified lawyer from Pakistan with over ten years of legal industry experience.

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