India's Unilateral Suspension Of Indus Waters Treaty Does Not Violate International Law

Pakistan alleges that suspension of the IWT violates international norms and customary principles of international law (CIL), and would be tantamount to an 'act of war', particularly since the IWT does not countenance any unilateral power to suspend, denounce, or terminate the IWT. Notably, the IWT does contain an exit clause under Article XII(4), however its invocation is conditional upon a consensual ratification of a termination treaty by both States – an Imposibile Negotium. This has led many to claim that the IWT is an eternal treaty, designed to operate in perpetuity. The fact that IWT has survived three wars lends credence to the above claim.

However, these claims are not valid as no treaty is intended to last forever or to withstand all circumstances without experiencing change. There is no such thing as an eternal treaty, especially since rules of international law recognize scenarios where unilateral suspensions and termination of treaties may be justified. If a treaty does not contain any termination, denunciation or withdrawal clauses, the rules of the Vienna Convention on Law of Treaties (VCLT) apply. One such instance was the suspension of the Treaty on Conventional Armed Forces in Europe 1990 by Russia in 2007, and its formal denunciation in 2023 citing the expansionist attitude of NATO. In the absence of an exit clause, Russia resorted to the principles contained in VCLT to validate its actions.

Pertinently, the IWT itself envisages the application of international conventions and CIL under Annexure G (Para 33). In the absence of specific provisions governing the counter-measures taken by GOI, it is necessary to examine whether international law principles carve out exceptions which legitimize unilateral State measures of the kind adopted by GOI.

Material breach of IWT

As discussed earlier, the VCLT is one such instrument which applies to the questions of validity, suspension, denunciation and/or termination of treaties. Formally, it is binding only on signatory States (Pak is; India isn't), however principles underlying the VCLT are recognized as general international law principles under CIL, which, a fortiori, apply to non-signatory members as well [Ram Jethmalani v. UOI (2011)].

One such substantive rule is provided under Article 60 of the VCLT, which allows the State to suspend, denounce, or terminate a treaty in case of a 'material breach' of any of its terms by a counter-party. When assessing whether a material breach has occurred, an important factor to be considered is the character of the Treaty; its subject matter; and what rights it seeks to enshrine. The IWT was concluded with the aim to optimally utilize the waters of the Indus system of rivers. The said treaty was underscored by a desire of both nations to build comity and friendship, and nurture a spirit of cooperation, recognizing that proper and complete utilization of the waters is essential to meet the irrigative and power requirements of both nations.

Under the IWT, all waters of the Eastern Rivers (Sutlej; Beas; Ravi) are available for the unrestricted use of India, and the Western Rivers (Indus; Jhelum; Chenab) are received by Pakistan for its unrestricted use. However, India possesses the right to utilize the waters from the Western rivers for domestic, agricultural or non-consumptive use, and also for the generation of hydro-electric power – an unrestricted right (Article III(2)(d) r/w Annexure D). In this context, Pak has time and again created obstacles and hindered the construction of hydro-electric projects (HEP) on the Western Rivers. Such manipulations first began with objections to the Tulbul Navigation Project which led to its suspension in 1987, and subsequently to the Kishenganga, Ratle, Pakal Dul, Lower Kalnai, and other HEPs, which are presently in limbo for design related objections. Attempted mediations have not been successful.

The 2013 decision of the Permanent Court of Arbitration (PCOA) in favour of India's position to divert the waters from Jhelum River have been disregarded by Pakistan through technical objections in 2014, forcing the matter back into PCOA's Court, demonstrating how the prevalent text of IWT is capable of being misused. Notifications issued by GOI in 2023 under Article XII(3) of the IWT seeking modifications of Treaty provisions have also been effectively thwarted through Pakistan's intransigence. Whether one looks at the above scenarios isolatedly or cumulatively, they tantamount to material breaches of the IWT, especially the refusal to engage with India in good faith with respect to necessary revisions in treaty-terms given the passage of almost 65 years since its inception.

Rebus Sic Stantibus

The other provision that justifies GOI's unilateral measure is Article 62 of the VCLT which vests a right in States to terminate or suspend the operation of a treaty in case of fundamental change in circumstances. This provision enshrines the rule of rebus sic stantibus, i.e., a treaty or contract remains binding until the surrounding circumstances are fundamentally altered. The irrigative and power requirements of the Indian State have grown manifold since 1960 and cease to identify with the position prevalent at the time of IWT's ratification – a fundamental alteration of circumstance. The hugely inequitable distribution of water (20% India: 80% Pak) directly offends the preambular vision of the IWT, and also militates against demographically weightier requirements of India.

Moreover, the CIL principle underlying Article 62 contemplates outbreak of hostilities as a fundamental change in circumstance, which can validly form the basis for denunciation of treaty or its suspension/termination [A. Racke GmbH & Co. v Hauptzollamt Mainz (1998)]. The aforesaid must be read along with Article 2 of the UN Charter which obligates member States to honour sovereignty, territorial integrity, and political independence of other States. The incitement and exhortations of General Munir, repeated cease-fire violations on LOC by Pak Army, murdering innocent civilians in Pahalgam, and recent admissions of the Pak Defense Minister as regards funding of terror-groups are all instances which implicate Article 62 and principles of CIL. In pursuit of the wide-ranging objectives contained in the Preamble of the IWT, maintenance of peaceful relations between India and Pakistan is indispensable, and is essential for pursuing the cooperation envisaged under the treaty. The absence of such relations constitutes a fundamental change in circumstance, allowing for suspension (and future termination) of the IWT.

Pacta sund servanda is a cornerstone principle of international legal order. Pakistan expects India to adhere to the said principle. However, justice and fairness demand reciprocity in contractual fidelity and adherence to international norms, in the absence of which India's counter-measures are likely to withstand any scrutiny under international conventions and CIL.

It would be remiss to not add a caveat here. As things stand, the suspension of IWT has limited material advantage. The present infrastructure surrounding the Indus water system, particularly on the western front, does not possess the capability of holding back tens of billions of cubic metres during high-flow months. It is lacking in both storage facilities and an extensive network of canals which may be utilised to divert the river flows. Until such time India creates the requisite infrastructure it can only temporarily stop the waters from flowing. There were recent reports which have alleged sudden release of waters by GOI following a 24-hour blockade. There is no conformation about this aspect. But hypothetically, if such measures are taken, may not just contravene provisions of the IWT which bar alteration in river flows without prior notification to Pakistan (Articles VI & VII), but also put at risk the lives of people situated in the lower riparian areas, with possible flash floods.

While the obligation of sharing information may not exist once the IWT is put into abeyance, obligations under the Universal Declaration of Human Rights, to which India is a signatory, would continue to operate, one of which is the right to life, liberty and security of person. Notwithstanding the prevalent frictions concerning issues of state sovereignty and of treaty-interpretations, GOI must ensure that the innocent civilians across the border are not made to bear the brunt of their leadership's transgressions.

The writer is an Advocate- on-Record in the Supreme Court of India. Views are personal.