Renegotiating the Indus Water Treaty in Terms of Climate Change

Introduction

The Indus Waters Treaty (IWT) was signed in 1960 by Pakistan and India to ensure the satisfactory utilization of the waters of the Indus system of rivers, delimit the rights and obligations of each country concerning the use of waters and encourage peaceful settlement of disputes.[1] At the time of the signing of the Treaty, the concept of ‘climate change’ was of little significance to the negotiating parties. Now, however, climate change has emerged as the greatest threat to the sustainability of water resources around the world. A report of the Intergovernmental Panel on Climate Change (IPCC) indicates that the Indus basin is situated in the area worst affected by climate change, with projected reduction of the Indus river’s flow by 30% to 40%.[2]

The hazard posed by climate change gets exacerbated when we consider the explosion in population, increasing water demand and persistently tense relations between the neighbouring nuclear powers. The IWT, however, defines “…no mechanism to encounter the climate change adversities, whereas the global efforts for the addressal of climate change impacts on the transboundary rivers are disproportionate and fail to address the localized issues of global importance.”[3]

The scope of this article, therefore, is to evaluate possible changes to the IWT considering the threat of climate change.

Impact of Climate Change on the Subcontinent

The impact of climate change on the Indus basin is severe, with both Pakistan and India facing water scarcity. Climate change affects the hydrological cycle leading to changes in precipitation patterns and runoff which may cause drought-like conditions in the lower Indus basin as well as extreme flooding in the basin destroying farms and communities along riverbanks. Flooding also leads to erosion and degradation of soil, resulting in lower agricultural productivity. [4]

Snow and glacial melt contribute significantly to the natural discharge generated in the downstream areas of the Indus. However, it has been predicted that the shrinking of glaciers may reduce flows of the Indus by 8% by the year 2050. Moreover, average availability has been estimated at 287 km³ (1329 m³) per capita. Climate change is expected to reduce this number to 750 m³ available per capita by 2050 which can have dire consequences for the densely populated subcontinent.[5]

In addition, climate change leading to water scarcity, floods and depreciating agricultural productivity may further intensify the ever deteriorating relations between Pakistan and India, posing a significant threat to international peace and security. Therefore, it is imperative to make appropriate changes to the IWT to cater to the hazards posed by climate change.

Amending the IWT

Allocation Mechanism

The IWT is a water allocation agreement, but it lacks the mechanism to adjust to an increasing population and decreasing resources. Thus, a treaty with a flexible allocation mechanism may prove to be more effective to address the “disproportionate division of water” and reallocation of water to accommodate the depreciating downstream flow. It would provide water based on “flow availability” and ensure “fair distribution of water”.[6]

Flexible water allocation mechanisms could include:

dividing water by percentage;
any direct allocation that is buttressed with additional indirect mechanisms with some built-in flexibility;
recognition that water allocations may have to be reduced due to water availability in particular circumstances;
allocations specifying that an upstream riparian state (i.e. India) deliver a minimum flow to a downstream riparian state (i.e. Pakistan); and
permitting countries in particular situations to make up owed water allocations for a future time when more water is available,[7] among other possibilities.

DeStefane et al argue that the general presence of allocation stipulations may contribute to the institutional resilience of a basin considering water variability.

2. Variability Management

Variability management is formulated to deal with extreme climate conditions, such as droughts and floods. A treaty with a variability management stipulation would acknowledge the temporal variability of water availability and help member states better prepare to deal with extreme events.[8] Such a stipulation may involve provisions for:

enhancing resilience to drought;
immediate consultation process between member states;
stricter irrigation procedures;
water allocation adjustments;
specific reservoir releases; and
data sharing, among others.[9]

Examples of variability management stipulations can be found in various transboundary water management treaties such as:

the 1996 Ganges River Agreement;[10]
the 1970 Lake Lanoux Agreement;[11]
the 1989 Vuoksi River/Lake Saimaa Agreement,[12] etc.

Flooding also requires the establishment of specific flood-related stipulations, such as:

transboundary warning systems;
information exchange;
construction of reservoirs and levees;
floodwalls;
channelization; and
regulation of land use.[13]

The IWT lacks capacity to deal with extreme events perpetrated by climate change, such as floods and droughts. Therefore, it is imperative to incorporate provisions concerning variability management.

3. Environmental Impact Assessment

Both riparian states possess independent rights to exploit allocated rivers, subject to provisions of the IWT. However, it would behove both parties to treat ‘water management’ as a joint responsibility. A joint team of independent experts may be appointed to produce ‘environmental impact assessment’ (EIA) reports prior to the initiation of any project with transboundary effects.

EIA is used to collect information about the environmental effects of a planned project and taken into account when deciding whether or not to proceed with a project.[14] Incorporating EIAs through an amendment to the IWT will force the parties to acknowledge the consequences of proposed projects and encourage informed decisions.[15]

4. Permanent Indus Commission to Act as Facilitator

Article VIII of the IWT establishes a ‘Permanent Indus Commission’ (PIC). Each state party is entitled to create a permanent post of Commissioner for the Indus waters and appoint to this post a person who shall ordinarily be a high-ranking engineer competent in the field of hydrology and water-use. Each Commissioner is required to be the representative of his or her respective government on all matters arising out of the IWT and act as the regular channel of communication on all matters relating to the implementation of IWT, particularly with respect to:

the furnishing or exchange of information or data provided for in the IWT; and
giving any notice or response to any notice provided for in the IWT.

In addition, the purpose and functions of PIC include establishing and maintaining cooperative arrangements for the implementation of IWT and promoting cooperation between member states in the development of waters of the rivers, etc.[16]

Article IX of IWT defines the procedure for ‘Settlement of Differences and Disputes’. Paragraph 1 of Article IX calls for mediation by the PIC when a question arises between the parties concerning the interpretation or application of the Treaty or the existence of any fact which, if established, may constitute a breach of the Treaty. In case the PIC does not reach an agreement over any of the questions mentioned in paragraph 1, the role of a ‘neutral expert’ and/or ‘arbitration’ comes into play (paragraph 2 (a) and (b) of Article IX, IWT).

Paragraph 1 of Article IX calls for resolution via agreement between the parties. In this regard, a more facilitative PIC would assist in accomplishing particular contents of the said agreement which may not even require an amendment to the IWT as it is still possible to interpret the words ‘endeavour to resolve the question by agreement’ (under paragraph 1 of Article IX) expansively to encompass a more facilitative role for the PIC.

A facilitative role may allow the PIC to ensure informed dialogue and consensus building. The PIC may consult each party to help them utilize water, keeping in consideration the customary principles of ‘reasonable and equitable use’[17] and ‘no harm’.[18] It may also facilitate both parties to formulate future plans considering climate change. In addition, PIC may help identify ‘mutual interests’ between Pakistan and India, essential to foster cooperation. Some of the mutual interests in terms of climate change include the tackling of water scarcity, increasing water demand, floods and melting glaciers, etc.

The Zambezi Watercourse Commission (ZAMCOM) in Africa is a perfect example of ‘mutual interest’ encouraging ‘cooperation’. The Zambezi river basin is shared by 8 African states which established the Zambezi River Authority (ZRA) in 1987. 7 out of 8 states in the basin created via agreement the Zambezi Watercourse Commission (ZAMCOM). The Commission is said to apply facilitative practices by providing a platform for ongoing discussions and negotiations on issues relevant to the management of the Zambezi river, including flood management, climate change adaptation, environmental protection and joint infrastructure development and management.[19]

In addition to having ‘permanent commissioners’ (i.e. engineers or hydrology experts under Article VIII of IWT), the PIC may also involve climate change experts specifically to guide decision-makers in terms of climate change impact on the flow and availability of water in the Indus basin. In 2010, for example, the International Commission for the Protection of the Rhine developed a basin-wide ‘adaptation plan’ with assistance from climate change experts.[20]

5. Amendment and Review Process

It has been argued that global climate change may lead to fundamental changes in the hydrological cycle, affecting its severity and time. Thus, an amendment and review procedure may be incorporated into the IWT to allow for “changing hydrologic, social, or climatic conditions or in response to new scientific knowledge.”[21] In this regard, the Colorado River Basin Agreement (CRBA) provides a suitable example. The CRBA shall be amended after finalizing the minutes of a collaborative process of review and discussion between the parties to the Agreement and the International Boundary and Water Commission.[22]

Conclusion

The Indus Waters Treaty is a crucial agreement for the sustainable use of water resources between Pakistan and India. However, the threat of climate change poses a serious challenge to the effectiveness of the Treaty. The impacts of climate change, including water scarcity, droughts, floods and decreasing agricultural productivity, are already being felt in the Indus basin. Moreover, tense relations between India and Pakistan over water sharing and other issues make it even more imperative for the Treaty to adapt to changing circumstances.

This article has proposed several changes to the Indus Waters Treaty to better account for the impacts of climate change, including the following:

A flexible water allocation mechanism within the IWT to address the disproportionate division of water and allow the reallocation of water considering depreciating downstream flow;
Variability management provisions in the IWT to allow the riparian states to deal with variable water availability over time due to extreme weather conditions, through enhancing resilience to drought, immediate consultation between member states, stricter irrigation procedures and water allocation adjustments, etc.
Appointment of a joint team of independent experts to produce EIA reports prior to the initiation of any project with transboundary effects to allow state parties to make informed decisions and acknowledge the consequences of proposed projects.
Expansion of the role of PIC, established under Article VIII of IWT, through purposive treaty interpretation, from the role of a ‘mediator’ to that of a ‘facilitator’ and help identify mutual riparian interests and foster consensus and cooperation.
Incorporation of a collaborative amendment procedure to allow for changes in climate, hydrological cycle and scientific developments.

These changes would help ensure fair distribution of water, improve the resilience of the Treaty to changing conditions and foster greater cooperation between Pakistan and India on the issue of climate change.

References

[1] Indus Water Treaty, India-Pakistan, 19 September 1960, 479 UNTS 39.

[2] Lucia De Stefano et eel ‘Climate change and the institutional resilience of international river basins’ (2012) Journal of Peace Research, p.194 and 195.

[3] Ibid.

[4] Nax, N.A. ‘Looking to the future: the Indus Waters Treaty and climate change’ (2016) (unpublished Master’s thesis, University of Oregon), p.15,16.

[5] Ibid p.17.

[6] See supra n.4 (NA, 2016), p.22.

[7] See supra n.2 (DeStefane, 2012), p.196.

[8] Ibid.

[9] Ibid

[10]Treaty Between the Government of the Republic of India and the Government of the People’s Republic of Bangladesh on Sharing of the Ganga/Ganges Waters at Farakka, Dec. 12, 1996, UNTS Reg. No. I-34549.

[11] Agreement Between the Government of the French Republic and the Spanish Government Relating to Lake Lanoux, Jan. 27, 1970, [1970] 504 UNTS 281.

[12]Vuoksi River/Lake Saimaa Agreement, signed June 27, 1989, 1679 UNTS 327, p.337. Article 1, 1.1

[13] See supra n.2 (De Steffano, 2012), p.197.

[14] See supra n.2 (Nax, 2016) p.25.

[15] Ibid.

[16] See supra n.1 (IWT, 1960) Para.4, Article VIII.

[17] “[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others” (Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, PCIJ, Series A, No. 23, p. 27)

[18] As per the ICJ in the Pulp Mills judgment the principle of prevention or the no harm principle, as a customary rule, has its origin in the due diligence that is required of a State in its territory. A State is this obligated to avoid and prevent activities which take place in its territory, or in any area under its jurisdiction, causing damage to the environment of another State. (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14)

[19] See supra n.4 (Nax, 2016) P.32; Patricia Wouters, “International Law—Faciitating Transboundary Water Cooperation” (2013) Global Water Partnership

Technical Committee, p.26 https://www.gwp.org/globalassets/global/toolbox/publications/background-papers/17-international-law—facilitating-transboundary-water-cooperation-2013-english.pdf, accessed on 27.04.2023.

[20] See supra n. 4 (Nax, 2016), p.29; Heather Cooley et el. “Understanding and Reducing the Risks of Climate Change for Transboundary Waters” (2009) Pacific Institute https://www.researchgate.net/publication/255661258_Understanding_and_Reducing_the_Risks_of_Climate_Change_for_Transboundary_Waters accessed 27.04.2023.

[21] See supra n.20 (Cooley, 2009).

[22] See: The Colorado River Compact, 1922, 45 Stat. 1057, T.S. No. 994, 3 UNTS 4.; and The Colorado River Basin Project Act, Pub. L. No. 90-537, 82 Stat. 885 (1968).

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