Environmental, Natural Resources, & Energy Law Blog

Ayman Irfan

9^th December, 2022

Pakistan’s Take on Water Law - Climate Crisis and Environmental Policy

The greatest environmental challenge that Pakistan faces in the present day is that of water. Water, true to its dilatable nature, encompasses within it a host of environmental issues – those of water scarcity, pollution, distribution, and other similar issues. The various forms of water depict its many scales, from the water underground to that frozen since millennia in chunks of mountainous glaciers. True to the tradition of this land, a drop of water contains within itself an ocean of forms – each linked, forming strands connecting the land from the heights of the Himalayas to the delta of the Indus.^[1] The aspect of water which emerges as the greatest environmental challenge to Pakistan is that of the rivers, in particular the ecological health and flow of the Indus riverine basin upon which rests a major chunk of Pakistan’s political economy, the sustenanceit provides to its citizenry, the energy it produces, and the way towards sustainable development which it seeks.

The environmental protection of the rivers is crucial for Pakistan. The Indus and its tributaries are the lifeblood of a nation currently transitioning from a largely agrarian political economy to that of industrialized development.^[2] The rivers flow through the length of the country both uniting it and creating the vibrant web of diversity which is reflected in the myriad of indigenous traditions revolving around the rivers. The 40 million-year-old Indus has been flowing throughout the ages based on a robust hydrological cycle giving rise to both topographical features and an ecological web which supports people and the land, which also ebb and flow with the rhythms of the river. Flora and fauna all evolved in tandem with the flow of the river, giving rise to agrarian yields which reinforced social setups and allowed a civilization to thrive based on the riverine system.^[3] It is no small wonder then that the folklore of this land, especially in the Punjab, revolves around the river such as the case in romantic stories of Sohni and Mahiwal. This link of love and the river is symbolic of the place which the rivers hold in our collective past and therefore present. It is imperative hence to seek to protect the rivers for our collective future.

Today, Pakistan faces an unprecedented threat to the protection of this collective future.The threat is not just a drying up of rivers by 2025 as usually posited but is much bigger than that; it is about the very fragile nature of the riverine ecosystem upon which rests Pakistan’s collective past, present and future.^[4] The problem is both water quantity and quality. The river system faces pollution in the waterways and dams in the upper riparian states/provinces which can close off the water flow and these issues combine to cause grave risks to the river.^[5] The health and life of the river is at risk and based on that – so are the health and life of the agrarian economy,the industrial processes that utilize water resources, and a national economy that is being sustained on water utilization especially in the sectors of energy, construction, and other water-dependent businesses. Also,the provisioning of clean drinking water – an acknowledged and adjudicated right under the constitution – isat risk.^[6] If the rivers die out, they will essentially cease to function as life-givers that support a robust hydrological, meteorological and soil cycle, giving rise to a particular ecology.

The loss of river health will only aggravate Pakistan’s water woes.^[7] The country is already at the risk of water scarcity. International bodies such as the IMF and the UNDP have reported that Pakistan’s water worries will only worsen leading to acute shortage and crippling management/governance crises.^[8] Even the local Pakistan Council of Research in Water Resources (PCRWR) indicates that Pakistan is on the verge of a tipping point. They have indicated that Pakistan crossed the “water scarcity line” in 2005 and has effectively crossed the threshold of water scarcity which leads to acute water shortage and drought like conditions.^[9] Importantly even back in 2018, the Indus River System Authority (IRSA) pointed to a grave water shortage in the Indus Basin Irrigation System – a whole system of canals which is dependent on the flow of the rivers. It pointed to water scarcity in the canals, resource deprivation for the farmers and contamination effecting cash and staple crops.^[10] (Is this due to combination of droughts and over-use? More development?)

Coupled with these concerns is the realization that Pakistan is a water-intensive country and by some estimates has the 4^th highest rate of water use in the world. (in the world? Region?). The country’s economy is extremely water intensive, the cubic meter water per unit GDP is among the highest in the world.^[11] Most of this water use, at least in the official narrative, stems from a largely agrarian base. The agrarian economy employs about 70 percent of the workforce and contributes to around 25 percent of the GDP. 21 million hectares of land is cultivated, 80 percent of which is done through the use of irrigation methods involving vast scales of water.^[12] The main crops that Pakistan produces – both cash crops and staple grains– are water-intensive and include wheat, rice, sugarcane, and cotton. It is estimated that around 93 percent of the water use – the majority of which comes from irrigation works and hence is directly dependent upon the rivers flow – goes towards agriculture.^[13] Notwithstanding this vast figure, the irrigation practices of the farmers, which largely involve depletion of the natural aquifers through unchecked tube well pumping and flood irrigation, together with the estimated 40 percent leakage from unlined and outdated canals, means that we are cashing a cheque that we cannot pay.^[14] It is the grace of the river and the silt of the alluvial soil which enables not just high yielding crops in the plains but also allows water retention underground. The river then again is the key.^[15]

The situation is aggravated by the fact that the water resources and especially the riverine basin is also fast being contaminated with waste and pollutants. The pollution comes from a hive of industrial and agrarian development which uses pesticides and chemical compounds to increase yield and large industrial sectors such as tanneries which cause extreme pollution to the water resources. The central focal point of this water quantity and quality crisis are the rivers.

The Indus River system contains most of Pakistan’s surface and groundwater resources. The death of this great river system is upon us and is apparent from the fact that in 1951 the per capita surface water availability was 5,260 cubic meters per person, and in 2016 that amount had fallen short to 1000 cubic meters per person.^[16] The equitable apportionment and distribution as a fundamental right of access, of water and in particular river waters is facing a drought.The riverine system does have a robust hydrological cycle with ice/glacial melt in the early months of the year continuing till July when the monsoon precipitation sweeps in and in the winter months the excessive amount of absorption in the river bed recharges the water aquifers resulting in at least a basic flow.^[17] This is particularly highlighted in how in 2018, the anticipated river flow in the Indus Basin Irrigation System was only 95 MAF as compared to a previous decade average of 112 MAF.^[18] This whole system is under threat which means that the complex flow and ecology of the river is under threat especially due to climate change. Climate change has especially changed precipitation patterns and the onset of the monsoon which means that the river flow does not improve much during the brief rain period and the temperature variations in the north also mean that the country does not receive so much snow in the catchment areas and neither do temperature increases contribute in the same pattern to the melting of such snow to complete the cycle.

All of these concerns illustrate the fact that Pakistan must protect the river itself. Pakistan must make the preservation of the river –both as an ecological and an economic source of immense value – the priority in dealing with a cascade of environmental issues. It should be seen that the river itself has a right – a right to flow. One must be careful in this respect to not only utilize the river and hence approach the problem from a closed off human rights perspective. It is not just the case that the problem is tied with providing a human right to the waters of the river but what is being discussed at hand is larger – it is about guaranteeing a wholly environmental right to the rivers itself. The context of water and particularly riverine systems is different – one must be wary of the conjunction of environmental rights and human rights.^[19] The courts of Pakistan in adjudicating water related issues tend to approach the problem from the human rights perspective and apply the similar adjudicative procedures of locus standi as before. This is in effect a narrow approach and misses the bigger picture – a picture in which the rivers are essential ‘ends-of-in-themselves’.^[20] An environmental rights approach focusing on the right of the river to flow to sustain a diverse ecology and biodiversity impacting economic growth and cultural/social ideas is necessary if we are to survive the storm which is brought to the door, courtesy of climate change. As Andy Russell points out in his book, “The Life of a River.” A river does not just happen; it has a beginning and an end. Its story is written in rich earth, in ice, and in water-carved stone, and its story as the lifeblood of the land is filled with color, music and thunder.”^[21] This is a call to help write the story of the river for future generations.

It seems that the law is inadequate when it comes to dealing with the problem at hand. There is no river law in Pakistan and except for its mention in varied laws or under the Indus Waters Treaty, there are no guiding principles aimed at conservation of the health of the river system. The IWT itself is a transboundary treaty and only deals in dividing the rivers.It is important to note that recent developments especially in International environmental law such as the ‘ecological state of necessity’ to or grave and peril risk to the ecology of the river system and equitable utilization, may be read into the IWT, as was the case in the Baghlihar Expert Determination.This could mean that at least between India and Pakistan a strategy may be made for the minimum flow of the Indus tributaries or environmental flows. This notion was dealt with in the Kishenganga Arbitration Award where the court did look into the idea of sustainable ecology of the river system and sustainable conservation.

To conclude, it is necessary to understand that the problem is bigger than merely the utilization of rivers as a resource. It is necessary to acknowledge river systems as life-givers and hence having a right to flow and life in themselves. Their life and flow and the resulting ecology is bounded with the land and hence with the social, cultural and economic structures of the land as well. In 2017, Awa Tupua, a river in New Zealand was granted the status of a legal entity.We need to give our rivers rights as opposed to extracting their precious water resource as our right. If such a right is given, it would be imperative upon the state to not pollute and to spend energies drafting ill-conceived policies aimed towards expensive hydropower and more so it will have to ensure that the water is used equitably – not just between provinces, authorities and people but also keeping in view the river itself so that its marine life and ecology is not decimated. Water distribution will be approached from a different angle of sustaining the original source and hence there will be a tendency to shy away from methods of madness such as flood irrigation. Environmental flows will help in ensuring the life of the basin wide system and hence save the ecology of the river, its flow, the local biodiversity, species, the culture and the livelihoods of the people dependent on the river.To quote Zubeida Mustafa, ‘The root of the problem lies at the source. Alas, rivers have no rights in Pakistan. But neither do the citizens, not on paper but in reality. This is certain though, when the rivers die, so will the citizens.’

Word Count: 2,116 excluding footnotes