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Mint
21-05-2025
- Politics
- Mint
India has held off the Indus Waters Treaty with due legitimacy
Following the terror attack of 22 April on civilians in Pahalgam that India traced to Pakistan, the Indian government announced that the Indus Waters Treaty (IWT) of 1960 would be held in 'abeyance" with immediate effect. 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.
The Hindu
05-05-2025
- Politics
- The Hindu
The messaging from putting the IWT in ‘abeyance'
On April 24, India announced that it would hold the Indus Waters Treaty (IWT) of 1960 in abeyance until Pakistan ceased its support for cross-border terrorism. The term 'abeyance,' as used by the Government of India, suggests a temporary suspension, leaving open the possibility of reinstatement should Pakistan take credible steps to curb terrorism, particularly in light of the Pahalgam terror attack, on April 22. The meaning of 'abeyance' The term 'abeyance' finds no legal recognition under the IWT or the Vienna Convention on the Law of Treaties, 1969 (VCLT). India is not a party to the VCLT, while Pakistan has signed it, but has not ratified it. Further, unilateral suspension of treaty obligations, as implied by 'abeyance,' lacks legitimacy under customary international law and international water law that promotes 'water cooperation' as the peremptory norm fundamental to the international legal order. Critically, in the IWT's, Articles XII(3) and (4) stipulate that modifications or termination require a mutually ratified treaty — a prospect that seems remote given the current status quo between India-Pakistan. Thus, the IWT's specific provisions preclude unilateral suspension of substantive or procedural obligations. More broadly, in the VCLT, Articles 60, 61, and 62 permit suspension of a treaty only under exceptional circumstances, such as a material breach, impossibility of performance, or a fundamental change in circumstances, respectively — none of which India has formally invoked. Therefore, India's invocation of 'abeyance' may be seen as a political signal rather than a legally enforceable action, potentially putting procedural cooperation on hold. In practical terms, by using abeyance, India can temporarily refuse to carry out all joint mechanisms necessary for the treaty's operation. India can choose not to share details on water resource development projects on western rivers and hydrological data crucial for flood forecasting and planning for irrigation, hydropower and drinking water that could jeopardise Pakistan's water interests, internal water planning and water security, temporarily if not permanently. Moreover, India could flush silt from its reservoirs (which also requires reservoirs to be filled) without issuing any prior warning to Pakistan. On January 25, 2023, New Delhi issued a notice to Pakistan through the Indus Commissioners, citing a material breach of the IWT. India argued that Pakistan's unilateral decision to approach the Permanent Court of Arbitration violated the treaty's dispute resolution mechanisms outlined in Articles VIII and IX. This time, New Delhi has invoked the Treaty as a counter-terrorism deterrent, opting for the term 'abeyance' rather than 'suspension' or 'termination'. This choice raises pertinent questions. Article 60 of the VCLT allows for the termination or suspension of a treaty in response to a material breach. Does Pakistan's alleged support for cross-border terrorism not constitute such a breach? Likewise, Article 62 permits treaty suspension or withdrawal in the event of a fundamental change in circumstances. Could the persistent threat to national security from cross-border terrorism not fulfil this condition? Yet, these arguments hinge on untested legal interpretations, as neither the IWT nor customary international law explicitly links terrorism to treaty obligations, risking escalation in an already volatile bilateral relationship. Abeyance as a two-level game The decision to use 'abeyance' likely arises from strategic and tactical considerations. First, India's Cabinet Committee on Security may have opted for abeyance as a cautious step to address public sentiment quickly and offer solace to grieving families. The limited time to fully evaluate the legal and diplomatic implications may have influenced this decision. Second, abeyance may also reflect a calculated move to relieve itself from the continuous legal objection it had witnessed vis-à-vis the construction of run-of-the-river projects planned on western rivers. India could leverage this pause to consolidate its rights to optimally use its entitled water usage allocations in western and eastern rivers, particularly through infrastructure projects that enhance its control over the Indus waters. However, this strategy risks escalating tensions, as Pakistan, heavily dependent on the Indus waters, is already viewing such actions as an 'act of war' and a direct threat to its water security. The choice of terminology is even more critical given Pakistan's current instability. With the military losing the support of the youth since Imran Khan's imprisonment and its attempts to internationalise the Kashmir issue during the U.S. Vice-President's India visit, Pakistan's political and economic instability is even more visible. This uncertainty makes it challenging for New Delhi to navigate relations with a state in turmoil. Did India fully account for this while formulating the decision announced by the Foreign Secretary? In such a context, can the abeyance of the IWT genuinely exert meaningful pressure on Pakistan? More fundamentally, will leveraging the IWT as a tool to compel Pakistan to end its support for cross-border terrorism prove effective at all? It is widely acknowledged that Pakistan, as a failing state, is unlikely to comply with India's demands. By invoking 'abeyance', India may buy time to pursue domestic goals, particularly advancing water infrastructure projects on the western and eastern rivers. Many of these projects, including the Kishenganga, Baglihar, and Ratle hydel projects, have faced significant delays due to Pakistan's legal interventions. This move could provide India with the leverage needed to expedite such initiatives. While the Kishenganga and Baglihar were eventually resolved, projects such as Tulbul-Navigation and Ratle remain uncertain. These long-standing tensions, along with the 2021 Parliamentary Committee's emphasis on the need for infrastructure to fully utilise India's allocated waters, mark a critical inflexion point. However, questions persist about the feasibility of such projects, especially regarding environmental clearances. In the weeks and months ahead, we could witness a complex interplay of domestic and international strategies, or a 'two-level game', between India and Pakistan. Both nations must manage domestic expectations, engage diplomatically to safeguard their interests, and justify their actions as victories. For India, invoking the IWT in 'abeyance' serves dual purposes: domestically, it demonstrates a firm stance against terrorism, aligning with public sentiment and reinforcing national security priorities. Internationally, it signals India's frustration with Pakistan's alleged support for terrorism. But could there be more to this strategy? Ramifications for India While in India, the decision has resonated emotionally with the public and garnered widespread political support, it risks overshadowing the more profound implications of such a strategy. On the global stage, unilaterally violating the IWT could lead to India facing the Permanent Court of Arbitration or the International Court of Justice, damaging its credibility as a responsible international actor. However, domestically, the strategy raises critical questions about the balance between national security and ecological prudence. The rush to fast-track water infrastructure projects, ostensibly to strengthen India's water rights, risks bypassing essential public and environmental scrutiny. Such actions could have dire consequences in the biodiversity-rich and seismically sensitive Indus basin. Weaponising water resources as a strategic tool may provide short-term leverage but could inadvertently harm India, undermining the foundational principles of democratic governance and constitutional integrity. At the same time, public sentiment demands a stronger stance against Pakistan, with some public intellectuals advocating escalated military actions akin to the surgical strikes of 2016 and 2019. While such actions might serve as immediate displays of strength, they do not address the root cause of cross-border terrorism. The challenge lies in navigating a path that satisfies national sentiment while ensuring long-term stability and security. New Delhi must carefully craft its narrative and future on-the-ground steps around the IWT abeyance, ensuring that India aligns with broader geopolitical goals and has a sound legal basis within the IWT framework. Actions taken must reflect strategic foresight, aiming to pressure Pakistan into reevaluating its stance on cross-border terrorism while avoiding harm to India's own ecological and social fabric. The focus should remain on measures that strengthen India's position as a responsible global power, leveraging its democratic values and environmental stewardship. This would uphold India's international standing, ensuring that its actions do not inadvertently harm the region that it seeks to protect. Anamika Barua is Professor, Indian Institute of Technology Guwahati; Sumit Vij is Assistant Professor, Wageningen University and Research, The Netherlands; Medha Bisht is Associate Professor, South Asian University, India; M. Shawahiq Siddiqui is an environmental lawyer in India; Neeraj Singh Manhas is Adviser for South Asia, Parley Policy Initiative, Republic of Korea
The Hindu
02-05-2025
- Politics
- The Hindu
What Happens to Pakistan If the Indus Waters Stop Flowing?
Published : May 02, 2025 15:19 IST - 8 MINS READ In the aftermath of the Pahalgam terror attack on April 22, India announced a host of diplomatic measures against Pakistan. Among other things, India announced: 'The Indus Waters Treaty (IWT) of 1960 would be held in abeyance with immediate effect, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism.'1 In its response, Pakistan rejected India's move, reiterated the Treaty's binding nature, and asserted that, 'Any attempt to stop or divert the flow of water belonging to Pakistan as per the Indus Waters Treaty, and the usurpation of the rights of lower riparian will be considered as an Act of War.'2 In its 65 years of existence, having survived three wars and multiple crises of fierce intensity, this is the first time that the IWT has effectively broken down. What does it mean? Understanding India's decision The text of the Treaty with 12 Articles and 8 Annexures (along with a 1962 Protocol) does not have any provision to set the Treaty in abeyance, or for either party to exit. However, international treaties are customarily governed by the principles set out in the Vienna Convention on the Law of Treaties (VCLT), 1969. The VCLT itself does not have any provision that allows states to unilaterally suspend bilateral treaties unless in certain exceptional cases, which include a 'material breach', a 'fundamental change in circumstances', or a 'supervening impossibility'. Here, India has evidently made the case that Pakistan's continued support for cross-border terrorism constitutes a fundamental change of circumstances, compared to when the Treaty was concluded between both parties.3 As Nishant Sirohi of the Observer Research Foundation has also argued, India setting the Treaty in abeyance falls in a legal grey zone and is more of a lawful countermeasure than a categorical breach of the Treaty's provisions. Also Read | The Indus Treaty's suspension deepens regional faultlines amid climate crisis Here, it is important to view India's IWT in the context of not just the Pahalgam attack, but also India's measures relating to the Treaty since January 2023, all of which indicate India's incremental case to point to a fundamental change in circumstances. First, India has sent at least two notices to Pakistan, asking to re-negotiate specific provisions of the IWT—in January 2023, and August 2024—as well as called for meetings at the Secretary (Water Resources) level. Here, India invoked Article 12(3) of the IWT, which allows for its provisions to be modified '[f]rom time to time… by a duly ratified treaty concluded for that purpose between the two Governments'. Pakistan has refused such calls, preferring to work within the Treaty's framework, through negotiations between the Permanent Indus Commissioners (Article 8) (PIC) instead, as it arguably felt that conceding to India's requests for any talks outside the Treaty's framework risks opening the door to broader negotiations on reworking the agreement. India, which has raised several complaints about the World Bank's role in the Treaty's dispute resolution mechanism, has been consistent in its demand to re-negotiate the Treaty, even suspending meetings of the PIC in September last year.4 Second, concerns in India about the IWT's provisions are long-standing—both due to perceptions of unfair water distribution as well as the effects of climate change, which necessitate technical revisions. While these are driven by India's demographic growth since 1960, with a parallel increase in water consumption, security analysts have also historically maintained that India needs increased leverage over the western rivers (Indus, Chenab, Jhelum), which are allocated to Pakistan, especially as a bargaining chip during crises. Unlike other issues, such concerns over the IWT have also been more non-partisan, with Jammu and Kashmir Chief Minister Omar Abdullah being among the leading critics of the Treaty which he deems unfair to the Kashmiri people.5 Essentially then, both Pakistan's indifference to India's concerns for over two years as well as long-standing domestic pressures meant that India arguably had enough rationale to eventually suspend or withdraw from the IWT, even without the Pahalgam trigger. Pakistan could now argue that India's suspension itself constitutes a material breach of the IWT and withdraw from it. However, as the lower riparian, Pakistan is more dependent on the Treaty itself and India abiding by it in good faith (pacta sunt servanda) as the upper riparian state. It is India's geographical advantage vis-à-vis the Indus system which has historically animated Pakistani apprehensions and insecurity—that India can sever Pakistan's aquatic jugular on which 240 million Pakistanis are dependent downstream.6 The impact of India's move In the first instance, India's virtual suspension of the Treaty also means its suspension of any dispute resolution processes presently active vis-à-vis the Kishanganga and Ratle hydropower projects, on the Jhelum (tributary) and Chenab rivers, respectively. For India, the only active process that has mattered thus far is the one facilitated by a Neutral Expert (Pakistan successfully induced the World Bank to begin a parallel track through a Court of Arbitration, which India rejects and does not participate in). It also allows India to ignore the Treaty-related arbitral awards, which guarantee certain rights to Pakistan—the 2013 Court of Arbitration decision for India to release the requisite amount of water for Pakistan's Neelum-Jhelum project, for instance. Additionally, suspending the Treaty frees India from its obligations to share data pertaining to river flow—the recent flooding of the Jhelum in Pakistan as a result of India opening its Uri Dam is evidence of the consequences of the lack of such data or prior warning. India also no longer has to allow Pakistani inspectors to examine Indian power projects on the western rivers—the last such inspection occurred in June 2024 in Jammu's Kishtwar. Moreover, India's decision also allows it to build new storage structures on the western rivers and ignore the limitations of the Treaty's Article 3(4), which prevents such structures, as well as make full use of the river's waters beyond the conditions set in Article 3 in general. Any such move is bound to disrupt flow to Pakistan, whose agrarian economy depends on over 90 per cent of water from the Indus system for irrigation and power generation (80 per cent of Pakistan's irrigated land depends on the Indus).7 However, apart from river data sharing, concerns about India's physical diversion of the western rivers are long-term. India presently does not have the infrastructure for such large-scale diversion. Even measures such as de-silting Indian dams (which increase their lifespan) are measures that have been highlighted by analysts as potential options for India are technically allowed, but only with India sharing information with Pakistan beforehand. This means that here too Pakistan's immediate concern is data-sharing. Hence, there is no immediate or pressing threat of India affecting large-scale material changes to the flow of the western rivers, with any planned infrastructural development potentially taking months if not years. However, the fact that India does indeed intend to make such changes to river flow is evident from the April 25 statement by Union Jal Shakti Minister C.R. Patil, where he asserted that India had short, medium, and long-term plans to ensure that 'not a drop of water will go to Pakistan'.8 The effects of such measures are less on the Indus Waters Treaty itself and more on Pakistan's ability to prove that its declared threshold for war with India is credible. Presently, both India's (or at least Minister Patil's) plans, as well as Pakistan's metrics for judging the degree of water diversion that is sufficient for declaring war are vague. While the timeline for India's multistaged plan is uncertain, Pakistan itself has not gone to war over alleged Indian manipulation of the western rivers beyond Treaty limits in the past. Also Read | Upping the ante: What placing the Indus Waters Treaty in abeyance spells for India and Pakistan In 2008, for instance, Pakistan's Permanent Indus Commissioner alleged that India had completely stopped the regular supply of the Chenab's waters (23,000 cusecs at the time), which significantly disrupted irrigation in Pakistan's Punjab province.9 Pakistan not only did not declare war but attempted diplomatic engagement through multiple direct and indirect channels (including the World Bank). India did not relent or concede fully to Pakistani demands, with the then Prime Minister Manmohan Singh even justifying water diversion for the Baglihar project which was deemed crucial for supplying electricity to Kashmir.10 As a country with high water stress, the mere threat of such measures is enough to force Pakistan to focus on deterring India from physically modifying any of the western rivers' course or flow. Here, while Pakistan's threat of war might be a proportionate response to India's linkage of the IWT with national security, it does not guarantee Indian concessions to Pakistan on a river that serves as the latter's lifeline. Rather, executing a war with India with the Indus' modification as casus belli (reason) only incentivises India to impose more punitive costs on Pakistan. The case is arguably similar for Pakistan's (officially unstated) threshold for nuclear use—economic strangulation by blocking the Indus' flow for Pakistani agriculture downstream. Essentially, Pakistan's high dependence on the Indus system necessitates cooperation with India. While it may choose a coercive path, the likeliest option is a legal-diplomatic effort. Even here, Pakistan cannot sue India at the International Court of Justice because New Delhi's 'Commonwealth Reservation' to the Court's statute prevents other nations of the Commonwealth from bringing contentious cases against India to the Court. Ultimately, bilateral diplomacy to either re-negotiate the IWT or negotiate an entirely new Treaty is Pakistan's most viable option. This has also been India's larger objective, in good faith, for several years. Bashir Ali Abbas is a Research Associate at the Council for Strategic and Defense Research, New Delhi, and a South Asia Visiting Fellow at the Stimson Center, Washington DC. Views expressed are strictly his own. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. Adam Radin, 'The Security Implications of Water', Naval Postgraduate School, March, 2010. Available at 10. Ibid.
The Hindu
30-04-2025
- Politics
- The Hindu
The impact of suspending a water treaty
In a strong measure against Pakistan, after terrorists from The Resistance Front killed 26 tourists in Pahalgam in Jammu and Kashmir, India's Cabinet Committee on Security decided that 'the Indus Waters Treaty [IWT] of 1960 will be held in abeyance with immediate effect, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism'. This implicitly means an end to the water treaty, signed in 1960. There is no exit clause and provision in the IWT for unilateral abrogation. Article XII (4) of the IWT states that the treaty 'shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments'. Many Indian analysts often argue that the provisions under Articles 60 and 62 of the Vienna Convention on the Law of Treaties (VCLT) can be used to revoke the treaty. India is not a party to the VCLT; Pakistan has signed but not ratified it. Invoking provisions under Article 62 of the VCLT on the IWT is convenient, but tough to argue. Suspending the IWT may also internationalise the water matter between the two hostile countries. Aqeel Malik, the Minister of State for Law and Justice in Pakistan, told Reuters that there are three different legal options, including raising the issue at the World Bank, taking action at the Permanent Court of Arbitration or at the International Court of Justice in the Hague alleging that India has violated the 1969 VCLT, or raising the issue at the UN Security Council. Stopping the flow of water India can now stop sharing water flow data with Pakistan, flush reservoirs, and there will be no hydro project design or operation-related restrictions on India. It can also hold water during the dry period and release it during the high monsoon, causing drought and floods in Pakistan. The western rivers — Indus, Jhelum and Chenab — are considered the backbone for Pakistan's agriculture, domestic consumption, and hydroelectricity production. An impact on the flow of water to Pakistan may further intensify inter-provincial water disputes in the country. Punjab and Sindh have a long history of water fights. Currently, they are arguing over a plan to construct six canals, particularly the Cholistan Canal, to irrigate the deserted Cholistan region in Punjab. Amid protests in Sindh, the federal government of Pakistan decided to halt the contentious canal projects. To materialise its political decision on the IWT, India requires major infrastructure projects. Under the IWT, India is permitted to store up to 3.60 million acre-feet (MAF) of water, develop 1.34 million acres of irrigation land in J&K and Ladakh, and construct run-of-the-river dams on the western rivers. However, India has a storage capacity of only around 1 MAF and has developed irrigation for about 0.642 million acres. On the eastern rivers — Sutlej, Beas, and Ravi — India utilises more than 90% of its 33 MAF allocated waters, supported by major projects such as the Bhakra, Pong, and Ranjit Sagar dam. India's hydroelectric projects on the western rivers, such as the Kishanganga Hydroelectric Project, Ratle Dam, Salal Dam, Nimoo Bazgo, and Baglihar Dam, aim to harness the water resources of the Indus, Jhelum, and Chenab rivers to generate electricity, utilising India's allocated share of water under the IWT. These projects have varying storage capacities, with Kishanganga at 18.35 million cubic meters, Ratle Dam at 78.71 million cubic meters, Salal Dam at 285 million cubic meters, and Baglihar Dam at 475 million cubic meters. Upcoming and planned projects such as the Ratle Dam, Kiru Dam, and Pakal Dul Dam will further tap into the Chenab River and its tributaries. However, India's ability to capture and utilise the water flowing into Pakistan is limited by the capacity of these projects. India lacks massive storage infrastructure to hold back large volumes of water during high-flow periods. While India has launched short, medium-term, and long-term plans to maximise its water share and reduce flows into Pakistan, most western river projects remain run-of-the-river with minimal storage. Given the challenging Himalayan terrain and bureaucratic delays, building the required infrastructure to harness the treaty entitlements could take a decade or longer. Conclusion India may justify its position on suspending the IWT. However, if its steps on the IWT do not politically and diplomatically satisfy other neighbouring countries, the suspension may impact New Delhi's relations with them. For instance, the upper riparian to many Indian rivers, China, may cite the suspension of the IWT in its favour to not renew Memorandum of Understanding on water data sharing or sharing information of hydrostructures on the rivers flowing into India from Tibet. India's MoU on data sharing with China on the Sutlej and Brahmaputra rivers have expired and, as India's Ministry of Water Resources website says, is under the process of renewal. Notably, during the Doklam crisis in 2017, China did not share hydro data with India, but shared it with Bangladesh. Second, as India and Bangladesh have agreed to renew the Ganga Water Treaty, set to expire in 2026, India's decision on the IWT may cast a shadow over it. Currently, India and Bangladesh do not share very close relations. India's water decisions may even prompt a section of the Nepali population to caution the government on water related and other agreements with New Delhi. A few commentators from Sri Lanka too are talking about 'treading' carefully while signing agreements with India. Amit Ranjan, Research Fellow, Institute of South Asian Studies, National University of Singapore; NabeelaSiddiqui, Assistant Professor, Vinayaka Mission's Law School, Vinayaka, Missions Research Foundation-Deemed University, Chennai
Hindustan Times
29-04-2025
- Politics
- Hindustan Times
India needs a lawfare strategy to enforce stand on Indus treaty
In response to the cowardly terror attack in Pahalgam, India has taken swift action to downgrade diplomatic ties with Pakistan and put the Indus Water Treaty (IWT) in abeyance. While the practical implications of this move are not yet clear, it is critical from an international law perspective. The term abeyance is not commonly used in international law; essentially, India has suspended IWT until Pakistan ceases its support for terrorism in India. Since IWT does not allow for unilateral suspension, India appears to justify this action by referencing Article 62 of the Vienna Convention on the Law of Treaties (VCLT) of 1969, which regulates the interpretation, implementation, and application of international treaties. A key question is whether Article 62 of VCLT provides sufficient legal basis for India's action or other legal justifications may be applicable. This inquiry is crucial because invoking the correct principle of international law will enhance the legitimacy of India's position and highlight Pakistan's unlawful actions. According to Article 62 of VCLT, unilateral termination of an international treaty is permissible if there is a 'fundamental change' in the circumstances that formed the essential basis for consent to be bound by the treaty. Successfully applying this provision requires meeting specific criteria, including 'changes of circumstances' that must be 'unforeseen' when the treaty was signed and must be 'fundamental'. Furthermore, these 'fundamental' and 'unforeseen' changes should be closely linked to the treaty's object and purpose. The International Court of Justice (ICJ) has established that the threshold for invoking Article 62 is exceptionally high. In the 1997 Gabčíkovo-Nagymaros Project case, involving dam construction on the Danube, Hungary argued that political, economic, and environmental developments since the 1977 Agreement constituted a 'fundamental change of circumstances', justifying its termination under Article 62. ICJ rejected this, holding that political and economic shifts were not closely linked to the object and purpose of the treaty, and advancements in environmental knowledge and norms were not entirely unforeseeable. Given this precedent, it is uncertain whether the security concerns arising from the Pahalgam terror attack would meet the high bar for a 'fundamental change of circumstances' as outlined in Article 62. Since India and Pakistan have always had a politically strained relationship, before and after IWT's negotiation, it could be challenging to contend that the recent terror attack represents a fundamental change in circumstances sufficient for unilateral termination. Additionally, India has cited other reasons for suspending IWT, including changing population dynamics, climate crisis imperatives, and shifts in the water-sharing assumptions when the treaty was signed. Although such changes could potentially qualify as 'fundamental changes of circumstances,' they are unrelated to the terror attack. They could have been cited at any time, including before the attack, to suspend the IWT. Second, India can invoke Article 60 of VCLT, which, along with Article 62, is part of customary international law, to justify the current suspension of IWT. Article 60 provides for the right of reactive termination or suspension of a treaty due to a material breach of treaty provisions by other parties. Since India believes that Pakistan is in breach of IWT, it is well within its rights to suspend IWT until Pakistan adheres to its obligations under the treaty. In summary, this issue has again underscored that India lacks an effective lawfare strategy to address its adversaries, such as Pakistan. Instead of merely reacting after a major terrorist attack, New Delhi needs to proactively utilise international law as a tool to consistently advance its national interests. This approach requires both a bold vision and enhanced State capabilities. Prabhash Ranjan is professor, Jindal Global Law School, and Pushkar Anand is assistant professor, Faculty of Law, University of Delhi. The views expressed are personal
