The recent decision by India to hold the Indus Waters Treaty in “abeyance” following the Pahalgam terrorist attack on April 22 has sparked much debate and concern about the future of the region. This blog seeks to clarify misconceptions about the international legal issues of the matter at hand, and how both sides may fare should this dispute be taken for international dispute resolution.
Misconception 1: India Legally Suspended the IWT
No, India did not legally suspend the Indus Waters Treaty. The Treaty does not include any language on suspension – or “holding in abeyance”, for that matter. Article XII(4) of the Treaty states that “The provisions of this Treaty, or the provisions of this Treaty… shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.” Therefore, while the IWT does not envision suspension, throughout its language, it emphasises the need for bilateral agreement to either modify (Article XII(3)) or terminate (Article XII(4)) the agreement.
India has two possible grounds to justify its unilateral suspension. The first would be to claim that Pakistan committed a ‘material breach’ of the Treaty by allegedly sponsoring the Pahalgam attack However, this argument will fall flat: even if the Pahalgam terrorist attack is attributed to the Pakistani State, it will still not constitute a ‘material breach’ of the Treaty. Article 60(3) outlines the conditions for material breach of a treaty, which include (1) a repudiation of the treaty not provided for in the VCLT or (2) “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Neither applies to Pakistan’s actions: Pakistan neither repudiated nor violated any of the Treaty’s essential water-sharing obligations, which is the object and purpose of the Treaty.
Secondly, India could argue that there is a ‘fundamental change in circumstances’ precluding the Treaty’s continued operation. Again, this would fall short. Article 62 of the VCLT states that a ‘fundamental change in circumstances’ cannot be cited as grounds for terminating or suspending a treaty unless
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
Pakistan’s alleged sponsoring of cross-border terrorism does not satisfy the two-pronged test. The two neighbouring countries have witnessed a long history of cross-border conflict, particularly intensified with India’s illegal occupation (and annexation) of Jammu and Kashmir in 2019. Arguments that sponsoring cross-border terrorism is therefore an unforeseen circumstance that challenges the underpinning basis of the consent to the treaty and would radically transform the obligations under the IWT would not hold because the Treaty has withstood previous flare-ups in diplomatic relations and political instability. In Gabcikovo-Nagymoros Project case between Hungary and Slovakia, the ICJ found that political instability cannot be cited as grounds “so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed” (para 104).
Misconception 2: Even if the suspension was illegal, India’s action is justified as a countermeasure
For a countermeasure to be considered legal under the international law of state responsibility, it must fulfil certain criteria as outlined in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) which are also considered an authoritative statement of customary international law.
Article 49 of ARSIWA states that “An injured State can only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations.” An internationally wrongful act, therefore, must be attributable to a State. So far, India has not been able to conclusively prove that Pakistan is directly responsible for the Pahalgam terrorist attack.
Even if attribution is proven, the lawfulness of the countermeasure is in question. According to Article 50(2), countermeasures shall not affect obligations for the protection of fundamental human rights. The UN Committee on Economic, Social and Cultural Rights (CESCR) has authoritatively interpreted a right to water under Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), to which both India and Pakistan are parties. The same has been upheld by the superior judiciary in both India and Pakistan. Unilateral alterations in river flows could severely impact the rights of Pakistanis to access water, as well as other rights that require water access (food and health, for example).
Similarly, under Article 51, “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.” While the loss of the lives of 26 civilians is highly condemnable and unjustifiable, the potential impacts of the suspension of the IWT could result in the harm to many more civilians in Pakistan through the deliberate denial of water, as well as potential unnotified alterations in water flows causing flooding, displacement and loss of property.
All of these factors cast doubt on the legality of India’s suspension of the IWT as a countermeasure, which, in this case, would itself be considered an internationally wrongful act, justifying Pakistan’s own countermeasures in response.
Misconception 3: India can legally refuse any obligations under international water law to Pakistan
Even if the Treaty’s suspension is upheld (hypothetically), India cannot put an end to all water-sharing obligations towards Pakistan because it is still bound by customary international law. The IWT provided a system to operationalise cooperation between the two riparian States (India being the upper riparian, Pakistan the lower riparian). These included a system for prior notification before undertaking hydro-projects on Western rivers, the exchange of daily river flow data, and a Permanent Indus Commission to monitor implementation.
Such duties are part of customary international water law. While there is a UN Watercourses Convention, neither Pakistan nor India is a party to said Convention. Nevertheless, the UN Watercourses Convention is widely regarded as a codification of customary international law. Therefore, even if the IWT’s suspension is upheld, India and Pakistan will both still be bound by core obligations under customary international water law. Both India and Pakistan must still ensure equitable and reasonable utilisation of the Indus River and its tributaries (Articles 5 and 6, UN Watercourses Convention), which creates a duty of cooperation (Article 8). Similarly, both are still obliged to prevent significant harm to each other’s rights to use the shared watercourse (Article 7). Furthermore, the obligation of prior notification of planned measures in the event of significant adverse effects still persists (Article 9 and Part III). While the operational mechanism under the IWT may be inactive post-suspension, both States are bound to uphold the same obligations. Failure to do so will constitute a breach of customary international law and entitle the injured State to international legal remedies.
Therefore, India’s suspension of the IWT does not entitle it to, as some commentators have said, stop sharing information about daily river flow data, or notifying Pakistan about any projects that may cause adverse effects to Pakistan’s water rights as a lower riparian State. At the same time, India currently lacks the infrastructural capacity to cause any alarming changes in the flow of the Indus River towards Pakistan.
Conclusion
Across multiple international legal grounds, India’s “holding in abeyance” of the IWT is not legally justifiable. Nevertheless, this move is a cause for concern as it can be seen as the weaponisation of water for strategic gain. As Pakistan is one of the most climate-stressed countries in the world, this could have dire long-term effects in terms of water security. Consequently, this “holding in abeyance” of the IWT must be condemned accordingly as a violation of multiple rules of international law.