Written by Suvansh Shanker & Gargi Srivastava
“Many of the wars of this century were about oil, but the wars of the next century will be about water.”
Ismail Serageldin (Former Vice President, World Bank)
Pakistan, on Monday, urged India to resume the normal functioning of the Indus Waters Treaty, 1960 (hereinafter “IWT”), which New Delhi has held in abeyance since May 2024, citing the recent decision by the Permanent Court of Arbitration in The Hague as evidence of the treaty’s continuing relevance. This diplomatic request follows India’s suspension of the treaty in the aftermath of a horrific terrorist attack in the Indian Union Territory of Jammu & Kashmir that claimed 26 civilian lives. In a letter and Note Verbale dated 24th April, India’s Water Resources Secretary, Debashree Mukherjee, informed her Pakistani counterpart, Syed Ali Murtaza, that the IWT would be placed in “abeyance with immediate effect” until Pakistan “credibly and irrevocably abjures its support for cross-border terrorism.” India cited a fundamental change in circumstances, the erosion of good faith due to sustained cross-border terrorism, and Pakistan’s failure to respond to modification notices under Article XII(3), all of which, India argued, constituted a breach of the treaty.
IWT is the treaty that governs the water sharing of the Indus River System between India (Upper riparian State) and Pakistan (Lower Riparian State), which was signed in 1960 following a compromise between Prime Minister Jawaharlal Nehru and his counterpart, Field Marshal Mohammad Ayub Khan. Accordingly, the river system is divided into Eastern (Ravi, Beas, and Sutlej) and Western Rivers (Indus, Chenab, and Jhelum), with India having exclusive rights on the former and the right to use for non-consummative purposes on the latter. Article IX of the IWT provides a three-tier mechanism: first, the Permanent Indus Commission; second, a Neutral Expert; and third, the Permanent Court of Arbitration—with the World Bank facilitating appointments and procedures at the second and third stages It is to be noted that IWT does not contain a unilateral suspension, withdrawal or denunciation clause, let alone define the legal effect of putting the ‘treaty in abeyance’. Article XII (4) provides for the termination of the treaty upon the conclusion of a subsequent duly ratified treaty between the two governments.
The major question arises is whether the unilateral actions of India are backed by the International Law and what is the legal effect of the keeping the treaty in “Abeyance.”
India’s stance under the Vienna Convention on the Law of Treaties:
In the case of ambiguity in Treaty interpretation, resort is taken to the Vienna Convention on the Law of Treaties (hereinafter “VCLT”). It must be clarified at the outset that VCLT is per se not applicable on the parties because firstly, neither India nor Pakistan are a signatory to the convention and secondly, the IWT pre-dates VCLT and Article 4 of the same provides for non–Retroactive application. However, some of the provisions related to the denunciation and suspension of the treaty are part of Customary International Law (hereinafter “CIL”), and therefore applicable in the present case.
Article 56 provides for the rights and procedure thereof, of denunciation of a treaty, which lacks express provision regarding termination or denunciation, as in the present case. The commentary to the draft article on Law of Treaty (hereinafter “Draft Articles”) explains that the provision does not exclude any unilateral right to denounce/terminate the treaty and same can be claimed if (i) Parties intended the possibility of denunciation (a question of fact, to be determined by reference to all circumstances of the case); (ii) such right can be implied by the nature of the treaty (accounting general circumstance of the case that parties intended to allow right to unilateral denunciation) and (iii) a twelve month notice to be given of the party’s intention to denounce the treaty.
In its note verbale, India claims IWT is a bilateral water sharing agreement without a formal denunciation clause, and in the event of changed circumstances such as demographic shifts, the need to develop clean energy sources and cross border terrorism, and given Pakistan’s refusal to renegotiate the terms of the treaty in light of the above, India cannot be denied the right to denounce the treaty. Additionally, India’s formal notices issued in 2023 and 2024 also fulfill the procedural requirement of twelve months’ notice.
India used the ‘fundamental change in circumstance’ as the ground, as provided under Article 62 of VCLT, which was held to be part of CIL in ICJ’s Gabčíkovo-Nagymaros Project (Hungary/Slovakia). The ground is based on the principle of ‘rebus sic stantibus.’ Paragraph 1 provides series of limiting condition under which right to denunciate can be claimed; (1) the change should be in circumstance existing at the time of conclusion of the treaty; (2) Change must be fundamental; (3) change must be unforeseen; (4) the existence of the those circumstance must have constituted an essential basis of consent by the parties to enter into the treaty; and (5) the effect of change must be such as to radically transformed the scope of obligation under the treaty.
The high threshold, as explained by the Draft Articles, is to refute any arbitrary and non genuine attempts to terminate the treaty. One the question of whether Article 62 provides for unilateral right to terminate the treaty, the International Law Commission (hereinafter “ILC”) noted that in certain cases, such right can be claimed provided the threshold of paragraph 1 is fulfilled.
Additionally, the ‘general change of circumstances’, outside the direct scope of the treaty, are not entirely irrelevant for the constitution of the ground. On the other hand, the ILC considered that other circumstances for example, policy change of the government, not necessarily in the direct scope of the treaty, can constitute the ground, if it has the effect of altering the essential basis of consent between the parties. There is no straitjacket test to apply, it depends on the case to basis.
India here claims, as reflected in its prior communications with Pakistan, that a reassessment of treaty obligations is necessary due to changes in circumstances, including population growth and the need for clean energy, among others. Further, there is the erosion of “spirit of goodwill, friendship and cooperation” as mentioned in the Preamble of IWT, due to Pakistan’s policy of supporting and aiding cross-border terrorism, thereby constituting the ground of suspension/termination of the treaty under Article 62.
India also used for the breach of IWT by Pakistan as an ancillary ground to claim its unilateral right to denounce the treaty. Article 60 of the VCLT provides that a material breach of a bilateral treaty can entitle the non-defaulting party to terminate or suspend its operations. A material breach includes the violating the provision ‘essential to the accomplishment of the object or the purpose of the treaty.’ The failure to respond to the request for reassessment on multiple occasions is claimed by India to have led to a breach by Pakistan, whereby it is no longer required to abide by the obligations of the treaty.
The use of the term ‘Abeyance’:
Finally, it is interesting to note that India has used the phrase, “putting in abeyance” rather than using denunciation or termination, or for that matter, suspension of the treaty. As per Black’s Law Dictionary, “abeyance” refers to a period of suspension or inactivity (see also P. Aiyar, Concise Law Dictionary). Neither an exit clause nor the terms suspension or abeyance are used in the IWT, nor is abeyance defined under the VCLT. One opinion indicates that it is merely a political move rather than having considerable legal significance, as there is no change in the water flow across the border. The other view holds that it is a move of ‘legal diplomacy,’ where abeyance of the treaty is used as a countermeasure for the breach of international obligations by Pakistan for sponsoring terrorist activities inside the Indian Territory, and the necessity to contain the same. State practices indicate that the parties have suspended the operation of the treaty; for example, the 1986 suspension by US of 1951 Australia-New Zealand-US Security Treaty after New Zealand banned the US nuclear-armed ship; India’s unilateral suspension of India – Bangladesh Water sharing Agreement until the negotiation of 1977 Farrakka Barrage Agreement. Recently, the US partially suspended New START obligations in response to Russian non-compliance. However, the use of the term abeyance is unprecedented. Additionally, since the action of India was taken in the event of the outbreak of hostilities, the same is not covered under the VCLT by virtue of Article 73.
On reading of the note verbale, it is clear that India did not wish to be bound by the obligations of the treaty in the aftermath of the Pahalgam attack. At most, it can be said that it is intended to suspend the obligations, as per the grounds enumerated in Article 62. The legal effects of the suspension as given under Article 72 provide that suspension releases the parties from the obligations to perform the treaty in their mutual relation during the period of suspension without the termination of the treaty.
Pakistan’s Counter and Recourse
Pakistan contends that IWT cannot be suspended unilaterally or held in abeyance, neither under any provision of the treaty nor under VCLT. In doing so, India has “contravened the established norms of inter-state relations, international law, and the treaty’s provisions.” Further, Pakistan has also alleged the violation of Article 7 of the Convention on the Law of Non-Navigational Uses of International Watercourses 1997, which provides that actions of Upper Riparian states should take all appropriate measures to prevent causing significant harm to the lower riparian states. Neither India nor Pakistan is however, party to the said convention.
Pakistan can submit the dispute to the World Bank for resolution under Article IX of IWT. Additionally, Pakistan can also proceed to the ICJ under Article 36 of the ICJ charter, which provides for compulsory jurisdiction in matters of Treaty Interpretation. However, the same may be objected to by India in accordance with its 2019 declaration, which states, “measures or situations in which India is, has been or may in future be involved, including the measures taken for protection of national security and ensuring national defence.” As evident from the note verbale, India considers the matter of sustained cross-border terrorism as a matter connected to its National Security.
Conclusion:
The President of the World Bank, Ajay Banga, recently stated that the World Bank will not play any role in the current dispute over the IWT between India and Pakistan. Some practitioners describe India’s move as an act of legal diplomacy aimed at sending a strong message to end support for cross-border terrorism. However, it is stressed here that despite the strong legal position advanced by India, the IWT remains a water-sharing treaty, and given the history of water disputes in the South Asian region, it does not set a good precedent to use such treaties as tools of diplomacy. Further, such treaties must be respected even in the outbreak of hostilities, as they concern access to water resources for the common people. Currently, in a welcome move, Pakistan’s Foreign Minister has expressed willingness to enter into negotiations with India to resolve the disputes over the IWT, while paradoxically asserting that any attempt to stall the water flow would be considered an “act of war.”