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The Indus Waters Treaty: What options does India have under international law?

- Aditya Raj and Humairah Shaikh

In January 2023, India sent a notice to Pakistan to amend the Indus Waters Treaty[“the Treaty”] because of the Pakistani side’s ‘intransigence’ in implementing the Treaty. The 1960 Treaty, which was brokered by the World Bank, determined the rights and obligations of both high-contracting parties regarding the utilisation of water in the Indus basin. The Treaty has always been considered a stabilising factor in the otherwise fraught Indo-Pak relationship and has survived all the highs and lows in the bilateral ties.

The issuance of notice by India came in the wake of Pakistan’s continuous attempts to jeopardise the of dispute resolution mechanism established under the Treaty. Pakistan has simultaneously invoked the different dispute resolution mechanisms, which are ‘graded’ in nature, which amounts to forum shopping.

At the same time, the flow of terrorism from the Pakistani side continues unabated, thereby disturbing regional peace. There have been a few voices advocating India’s withdrawal from the Treaty in the wake of repeated security breaches from Pakistan. The Indus Waters Treaty does not contain any provisions on its suspension or termination. However, merely because the Treaty is silent on abrogation or denunciation, it cannot be presumed that the Treaty forbids unilateral abrogation. This is because the customary law on treaties does provide for suspension or termination under certain circumstances, which will be discussed later in this piece.

Considering the prevailing circumstances, this article seeks to explore the legal options which India can undertake with respect to the Treaty. Can India unilaterally withdraw from the Treaty, or suspend its operation? What are the valid options available to India under international law in this regard?

Withdrawal from, or suspending of the operation of the Treaty

Fundamental Change of Circumstances

Article 62 of the Vienna Convention on the Law of Treaties [“VCLT”] provides that a party can unilaterally withdraw from or suspend the operation of a treaty on account of a fundamental change of circumstances. The circumstances which have changed must be those that existed at the time of conclusion of a treaty, and must have constituted an essential basis for the party’s consent to the treaty in question. Moreover, the change in circumstances must not have been foreseen by the parties.

The next question that arises with respect to the invocation of the principle of fundamental change of circumstances is whether political circumstances can be considered for analysing a country’s response or should the invocation be restricted to a completely legal circumstance. The ICJ in theGabcikovo-Nagyamaros Projectheld that political situation can be of relevance while considering the argument of a fundamental change of circumstances, if the original political circumstances, which have been altered now, constituted an essential basis of the parties’ consent to the treaty.[i]

Significant state practise is available in this regard. For example, the United States walked out of the Anti-Ballistic Missile Treaty, which it had signed with the Soviet Union, on the ground that the continuous terrorist attacks pose a serious threat to the security of the US and that the current extraordinary events have significantly changed the circumstances that existed during the signing of the Treaty.Therefore, departure from the Treaty is justified .Russia suspended its obligations under The Conventional Armed Forces in Europe Treaty, citing the emergence of exceptional circumstances which can significantly affect its national security. As national security concerns, Moscow cited events like NATO’s eastward expansion and military deployments, and its increasing arms exports to NATO members in vicinity of Russia.

Both India and Pakistan must have obviously expected that the Indus Waters Treaty would significantly contribute to the improvement of bilateral relations and would promote peace, stability, and economic development in the region, as substantiated in the Preamble of the Indus Waters Treaty. In fact, the signing of the Treaty itself testifies that the political ties of the two countries were satisfactorily better during the period of mid 1950s to the early 1960s, when compared to the ever-turbulent bilateral relationship in the present era. However, Pakistan’s use of terrorism as a state-policy against India has significantly altered the envisaged-peaceful circumstances on which India’s as well as Pakistan’s consent depended. The use of terrorism has also violated the spirit of cooperation, goodwill and friendship, which was one of the foremost objectives of the Treaty as stated in the Preamble of the Indus Waters Treaty.

Alternatively, while determining whether there is a change in fundamental circumstances, it must be considered whether India and Pakistan would be willing to sign a treaty in the present circumstances. Clearly, in an increasinglyhostile environment exacerbated by Pakistani terrorism, where both countries have expelled each other’s High Commissioners since 2019, and bilateral trade is virtually negligible, neither of the two countries would have shown the political will to concur on such a crucial issue.

The next choice which India needs to make is whether it should go for an abrogation or suspension of its obligations under the Indus Waters Treaty. For Pakistan, the water of the Indus Basin is a question of survival. The entire lifeline of Pakistan’s agricultural sector is dependent on the Indus waters, given the fact that no alternative freshwater river basin is available in Pakistan. An act of withdrawal will definitely be viewed as hostile behaviour and can lead to a small-scale armed conflict. It might appear that India is being overly bullish and taking advantage of its upper riparian status.

Therefore, a temporary suspension of obligations in order to motivate Pakistan for course correction is clearly a better option than unilaterally denouncing the Treaty. Once the ninety-day deadline, which India has given to Pakistan to come for negotiations, gets over, India can consider suspending its share of obligations under the Treaty citing a fundamental change in circumstances.

Countermeasures

Under international law on state responsibility, a state can impose countermeasures in response to an internationally wrongful act by another state. Unilateral countermeasures compel the wrongdoer state to cease the wrongful act.[ii]The countermeasures in question must be proportionate to the wrongful act,[iii] and should be terminated once the state ceases to engage in the wrongful act,[iv] and should not breach a norm of peremptory or ‘non-derogable’ nature,[v] such as the prohibition on the use of force.

Countermeasures are recognised as valid measures of self-help and instruments of enforcement under international law. India can certainly rely onits case of suspension of the Indus Waters Treaty as amounting to peaceful unilateral countermeasures, as a response to Pakistan’s wrongful act of breaching international peace and security by harbouring and employing terrorists as a tool of state-policy. Pakistan’s use of terrorism breaches its obligations under the Charter of the United Nations, particularly Article 2(4) which prohibits the threat of or use of force, and the general principle of non-intervention in the internal affairs of another country. Besides this, as per the 2004 Bilateral Agreement between India and Pakistan, Pakistan assured India that it would not support or harbour any terrorist group acting against India.

India’s experience of terrorism from across the border for the past-three decades is certainly a justification for utilising countermeasures to safeguard its rights and interests and forcing Pakistan to comply with international law.Moreover, India’s countermeasure will be seen as economic in nature because the entire agricultural economy of Pakistan is dependent on water from Indus basin. There is overwhelming state practice when it comes to the imposition of economic countermeasures or sanctions in response to breach of peace and international security for example, US and EU sanctions against Russia for its invasion of Ukraine, and sanctions on North Korea and Iran for breaching their respective obligations under the Nuclear Non-Proliferation Treaty.

With respect to the legality of countermeasures, there are some additional procedural limitations, first, peaceful alternatives must be exhausted, and second, countermeasures must be proportionate in nature. It is a well-known fact that India has time and again called upon Pakistan to shun the use of terrorism. Despite this, Pakistan continues to engage in promoting subversive activities and hostile propaganda against India. Moreover, suspension of treaty obligation itself is a peaceful and proportionate alternative to using military force against terrorists operating from Pakistani soil.

Pakistan’s repeated violation of the obligation relating to non-use of force, which is of ergaomnesnature, i.e., owed to the general community as a whole, entitles India, in the capacity of an injured state, to impose unilateral countermeasures, in the form of suspension of obligations under the Indus Waters Treaty.

Finally, it should be made clear that the imposition of countermeasures will not be affected by the fact that the treaty in question does not provide a right to do so. Imposition of countermeasures is governed by a separate international legal regime of state responsibility, and the fact that the Indus Waters Treaty does not contain any provision on suspension or termination does not prohibit India from imposing countermeasures that will be in the nature of the suspension of its obligations under the Treaty.

Conclusion

India’s supreme national security interests cannot be disregarded anymore. Pakistan needs to realise that supporting terrorists, and subversive elements, and engaging in hostile propaganda against India will come with its own costs. Killing innocent civiliansand Indian military personnel, and posing a direct threat to India’s security will definitely attract reciprocation. If Pakistan wants the Treaty to sustain, it must stop jeopardising and distorting the terms of the Treaty to legally challenge India’s every project on its entitled share of Indus waters.

At the same time, the economically-distraught country must dispense with terrorism as a tool against India, something that cannot be expected from the ‘epicentre’ of terrorism in the nearfuture.

It must be either explicitly or implicitly stated to Pakistan that the Treaty is no longer inviolable and can definitely be used as a legal as well as a strategic weapon against Pakistan’s unabated export of terrorism into India.

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[i]Gabcikovo-Nagyamaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, ¶104.

[ii] ILC, Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/RES/56/83 (2002), Art. 49, available at https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf[“ARSIWA”]

[iii] ARSIWA, Art. 51.

[iv] ARSIWA, Art. 53.

[v] ARSIWA, Art. 50.

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