India has held off the Indus Waters Treaty with due legitimacy
While 'abeyance' lacks a formal status in international law, the closest corresponding legal concept is 'suspension' under Article 62 (1) of the Vienna Convention on the Law of Treaties (VCLT). It recognizes a change in circumstances as a valid but narrowly constructed ground for suspending or terminating treaty obligations if: (a) the change is unforeseeable and fundamental and (b) radically transforms a party's obligations. Given these conditions, can India's actions be justified within the international law framework?
Also Read: Mint Quick Edit | India can gain Indus leverage over Pakistan
Fundamental change: A major point of contention is whether Pakistan's support of cross-border terrorism amounts to a fundamental change in circumstances. In the case of A. Racke GmbH & Co. vs Hauptzollamt Mainz, the European Court of Justice recognized the outbreak of hostilities as constituting a fundamental change of circumstances.
The IWT's preamble acknowledges that the satisfactory utilization of the Indus river system requires continued cooperation in a spirit of goodwill and friendship. Similarly, Article VII emphasizes future cooperation and 'common interests in the optimum development of the Rivers."
These provisions indicate good faith as an essential condition for the IWT's performance.
Pakistan's persistent acts of support for cross-border terrorism have undermined the very foundation of cooperative engagement essential to fulfil the objective of the IWT. These acts have also critically altered the political landscape, impacting human rights, peace and security in the region and making the treaty impossible to sustain on moral grounds. The opinion of the UN Secretary-General's Study on the Legal Validity of the Undertaking Concerning Minorities, which acknowledges the relevance of moral impossibility in the context of treaties, offers a supporting precedent.
Also Read: The IMF's Pakistan loan spotlights the case for voting power reform
Climate change: At the time of IWT negotiations, climate change had neither joined the mainstream political debate nor the legal landscape. The IWT focused on the apportioning of water flows and management of rivers, rather than on water sharing per se. It covered dam construction for hydro-power generation, etc, but recent studies have shown how climate change severely affects hydrological circles. According to the US space agency Nasa, the Indus Basin is the world's second-most water-stressed aquifer.
The IWT's failure to accommodate climate change has implications. India's climate targets include the goal of carbon neutrality by 2070; it also envisages achieving 50% of electricity generation from non-fossil fuels by 2030. The IWT restricts ambitious dam projects by India along the Indus river system, thereby impacting its ability to meet its goals. The effects of climate change could constitute a fundamental and unforeseen change of circumstances under the IWT as well.
Also Read: Hydropower: Let pump dams fill gaps in India's clean energy supply
Legal efforts by the government: Although this is the first time India has announced the abeyance of the IWT, New Delhi has made consistent attempts to modify it. Citing climate change, a parliamentary standing committee in 2021 recommended re-negotiation of the IWT. After this, India sent two notifications to Islamabad to modify the IWT in line with Article XII (3). New Delhi highlighted an altered demographic profile, agricultural use, depleting groundwater and the burning need for clean energy as fundamental and unforeseen circumstances that necessitated a reassessment of the Treaty.
More importantly, India also referred to continued cross-border terrorism in Jammu and Kashmir as impacting the operation of the IWT. Pakistan insisted that any discussion on it should be undertaken through the Permanent Indus Commission (PIC).
In contrast, India feels that the PIC, a byproduct of the Treaty, does not have a mandate to play such a role. Article X11 (3) allows modification of the IWT only by means of a new agreement concluded between the two governments.
Also Read: Nitin Pai: Operation Sindoor leaves India better placed for the next round
An assessment of other treaty practices, like the United Nations Framework Convention on Climate Change, indicates that treaty bodies are entrusted with implementation, whereas treaty modification is a political decision.
The last meeting of the PIC took place in May 2022, which suggests a breakdown of the IWT's institutional machinery. Hence, the post-Pahalgam-attack decision of the Indian government to hold the IWT in 'abeyance' should be viewed from the larger perspective of New Delhi's prolonged and exhaustive efforts, which can reasonably be said to have exhausted all legal remedies under the 1960 Treaty.
Climate change has fundamentally altered water availability in the Indus Basin. Given Pakistan's refusal to re-negotiate the IWT in the face of climate change and its support of terrorism that has nullified the spirit of cooperation, making the Treaty's performance impossible, there is sufficient legal basis for India's invocation of changed circumstances.
However, India needs to tread cautiously, considering the ecological impact of climate change and the region's interdependence. Moreover, decisions like these risk being followed by other state parties elsewhere that might be looking for a pretext to unilaterally terminate treaties and other international agreements. In addition, there is always the risk of retaliatory actions that could create complications.
The author is senior associate professor at the faculty of legal studies, South Asian University.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Indian Express
an hour ago
- Indian Express
Nepal stand on trade through Lipulekh not justified: MEA
A day after India and China agreed to the re-opening of border trade through the three designated points, Nepal has objected to the border trade through Lipulekh Pass. Nepal has disputed the Indian claim over Lipulekh in the past. Nepal PM K P Sharma Oli had in 2020 opposed it, passing a map in Parliament, showing the area as part of Nepal. In response to Nepal's stand, MEA spokesperson Randhir Jaiswal said, 'Border trade between India and China through Lipulekh pass commenced in 1954 and has been going on for decades… such claims are neither justified nor based on… evidence.' He said that India remains open to constructive interaction on resolving the boundary issues.
Hindustan Times
an hour ago
- Hindustan Times
Review: Asia After Europe by Sugata Bose
In college, a professor often went on diatribes against Eurocentrism, the practice of viewing the world through the lens of the hegemonic West. While he earnestly taught us the prescribed syllabus for philosophy students, he bemoaned its overwhelming focus on Western philosophy at the expense of, say, Indian, Arab, or Chinese thought. The Asian future: Prime Minister Narendra Modi and Chinese Premier Li Qiang at the G20 Summit in New Delhi on September 9, 2023. (HT Photo) 288pp, ₹699; Harvard University Press However, even as he exhorted us to be aware of our Western blinkers, he acknowledged the impossibility of completely discarding them within our current modes of knowledge production and dissemination. After all, he was railing in English, the link language for us students from across India. But in doing so, he left us with an appreciation of the assumptions that constitute the bedrock of our worldview, what kinds of knowledge we privilege, and the indigenous thinkers and systems we remain unaware of. While this idea has a long lineage in academic circles, it has not always filtered down to the public sphere. In some cases, it has done so in a rather perverse manner. Take the case of the Indian extremists who use the idea of 'decolonisation' to justify parochialism and subjugate minorities. Ironically, their worldview and ideals derive heavily from European fascist ideology. So, in the very act of highlighting their identity in opposition to the West, they adopt European frameworks of identity and nationalism. That is why I think my professor would have approved of Sugata Bose's Asia After Europe: Imagining a Continent in the Long Twentieth Century. Through the works of scholars and political leaders across Asia and the interactions between them, it explores their visions of Asian solidarity and universalism, and the evolution of Asian thought, politics, and art. They not only challenged European colonial precepts, but also conceptualised alternatives to dominant European narratives and debates. In the book, we encounter Okakura Tenshin, José Rizal, Jamaluddin al-Afghani, and Benoy Kumar Sarkar, among other luminaries of the 20th century and earlier. These names might not be as familiar to non-scholars as some of the more notable ones who figure in Bose's account, such as Rabindranath Tagore and Chiang Kai-shek. Yet, they are no less fascinating. Rizal was a Filipino writer and nationalist, whom the Spanish colonial government executed in 1896. He became a unifying symbol of Asian resistance against Western imperialist domination. Okakura, a Japanese art critic and champion of Asian unity, travelled to India and had close links with Swami Vivekananda and Rabindranath Tagore. Al-Afghani, born in Iran, was a 'proponent of Islamic fraternity rather than Asian solidarity', though Bose emphasises that there was significant overlap between the two. Al-Afghani travelled across West and South Asia, and in the latter, stressed Hindu-Muslim unity against the British. Sarkar, an 'energetic, globe-trotting Indian intellectual', visited China and Japan, met intellectuals and politicians there, and extensively documented his journeys and geopolitical insights. The book succinctly captures attempts to forge an Asian identity and consciousness, visions of Asian solidarity, and the schisms caused by intra-Asian wars and conflicts. It provides a refreshing account of Asian histories in relation to each other, often without the Western lens that most works on the continent adopt. Asia has now bypassed other regions as the largest producer, exporter, importer, and consumer of goods. With many heralding the 21st century as the Asian century, Bose's book highlights what potential connections and collaborations between Asian nations could look like. He also explores what it would take for the continent to chart a future that 'expands and not destroys the aspirations of humanity'. In the preface, the author says that he has written the book 'in an accessible literary style for a broad readership'. Indeed, interesting anecdotes, such as about Prime Minister Jawaharlal Nehru rushing to help Chinese First Lady Madame Chiang put on her shoes during a visit to Shantiniketan, make Bose's historical exploration and arguments engaging. While the book largely eschews jargon and does not require an intimate knowledge of 20th-century history, it would have been good if it had provided more context for the non-scholar. Take, for example, the idea of Asia vis-a-vis Europe. While European nations' collective participation in the European Union and free movements across borders in the Schengen zone have lately reinforced the notion of the continent as a unified entity, it is an idea with a long history. Of course, plenty of myth-making and propaganda over centuries have helped shape it. For example, Europeans assert their antecedence in Greek and Roman empires, while conveniently glossing over how Arab scholars mediated their engagement with these civilisations. They claim the continent is built on Enlightenment ideals (natural law, liberty, rationalism, tolerance, etc.) despite their history of colonisation and perpetuating atrocities on the rest of the world. So, while the notion of Europe might be perverted and self-serving, there is some narrative underpinning it, no matter how flawed. What would an analogous conception of Asia look like? Can one find — or invent — common features among its disparate nations? Are there any unifying links between countries thousands of miles apart, say, Japan and Jordan? There are no clear answers, more so given that the idea of Asia as a singular landmass is also an arbitrary European construct. Historian Sugata Bose (Samir Jana/HT Photo) Nevertheless, the author explores several responses to these questions, such as Sarkar's 'three-fold basis of Asiatic Unity' and pan-Asian art and cultural initiatives, among others. While these are quite illuminating, I wish he had further investigated the meta-critiques regarding what constitutes Asia, especially the continent's conceptions that do not merely rely on Europe as a frame of reference. Besides, the book predominantly focuses on Japan, India, and China, with only fleeting references to the other countries that make up the continent. Would an idea of Asia defined largely by these three regional powers be representative of the entire region? Or would it replicate the hegemonic influence of wealthy western European nations over the idea of Europe? A deeper exploration of these debates would have helped better contextualise Bose's cogent and insightful account. Syed Saad Ahmed is a journalist and communications professional. In 2024, he was selected as a Boston Congress of Public Health Thought Leadership Fellow. He speaks five languages and has taught English in France.
India.com
an hour ago
- India.com
‘Sudarshan Chakra, You Mean?': Russian Envoy's Hindi Twist On S-400 Question Stuns Everyone
New Delhi: A press briefing at the Russian Embassy turned lively on Wednesday (August 20) when Roman Babushkin, Charge d'Affairs of Moscow to New Delhi, chose a uniquely Indian term for Russia's most advanced air defence system. The question came from a journalist on whether India might consider air defence systems like Israel's Iron Dome. Babushkin smiled, leaned forward and asked in return, 'You mean Sudarshan Chakra?' He did not stop there. With an amused expression, he added, 'Next time ask in Hindi, I can answer better!' India has already purchased the S-400 missile system from Russia. In Indian defence circles, the system carries the tag of 'Sudarshan Chakra'. It came into the spotlight during the four-day clash with Pakistan in May, when the system intercepted enemy missiles and proved its battlefield effectiveness. The comment arrives at a time when the term Sudarshan Chakra has been freshly associated with Prime Minister Narendra Modi's Independence Day speech. He spoke about Mission Sudarshan Chakra, an ambitious national project to build a homegrown air defence shield. The goal is to protect both civilian centres and strategic assets from aerial threats. Babushkin opened the briefing with a warm gesture toward his hosts. In clear Hindi, he declared, 'Shuruat karengey… Shree Ganesh Karengey!' The hall responded with laughter and applause. Throughout the interaction, the deputy chief of mission spoke warmly about India-Russia relations. He also turned sharply critical of American trade policy. Tariffs on India from Washington, he said, show 'a lack of trust and disrespect for national sovereignty'. He stressed that Moscow will remain open for Indian goods. If tariffs in the United States create obstacles, he said, Russia would 'welcome' Indian exports.
