Understanding India’s Legal Stance on Holding The Indus Water Treaty in Abeyance
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
AN INTRODUCTION TO FEDERALISM AND TERRITORIAL INTEGRITY
Written by Nikita Kujur During the American Civil War, neither the Southern States, nor the Union was able to destroy the other, thus, concretizing an essential feature of federalism, i.e., the Union or the States cannot abolish the other. This can be taken as finality of the borders of the federating units within the federation giving birth to the doctrine of territorial integrity. A feature, which goes a hand-in-hand with federalism as it allows unity without suppression. The fact that state borders in the US and Australia have remained unchanged for more than hundred years is an example of territorial integrity, but India provides a varying instance. The nearly octogenarian country has been busy in continuously drawing and redrawing its border, thus, diluting the essence of its territorial integrity. The concept of federalism has also undergone an evolutionary phase from confederation to modern-day nation-states ticking the prerequisites for a federal state. Attempts are often made to fit a federal state into a straitjacket formula, but the very concept of federalism has to be tailor-made as per social, economic and political conditions of that particular nation-state. This places Indian federalism as well as its treatment of territorial integrity at variance with other federal states. This write-up is a way to reflect upon how the ability of the Centre to abolish the units can be seen as an attempt towards giving recognition to heterogeneous elements of India, thereby giving way to the true essence of federalism. FEDERALISM AND TERRITORIAL INTEGRITY AN INTRODUCTION The power that giveth can taketh away. These words give an impression of greater centralization, but it also reflects an ever-evolving dynamics of power sharing in India. Such developments are further echoed in the federal structure and territorial integrity of India. The former can be understood as a two level governance mechanism consisting of general and regional government, both working independently and in cooperation, and catering to the same populace. Article IV of the Helsinki Final Act 1975, defines territorial integrity in relation to international law, “Nation-states should not attempt… nor impose a border change through force.” This aspect becomes relevant in the context of drawing the internal boundaries in a nation-state. Thus, federalism and territorial integrity together can be understood as-the former allowing autonomy of the states and the other enabling the continuity of that autonomy. In India’s case, federalism was a political solution for its political problem of accommodating the diverse needs of its diverse populace. Supplementarily, to further assimilate this heterogeneity, India adopted a loose interpretation of territorial integrity. The implication of such interpretation can be seen starting from the State Recognition Act, 1956 and the latest step in this direction being the Jammu and Kashmir Reorganization Act, 2019. This gives an impression that India has not reached the panacea when it comes to the drawing of the territorial borders of federating units. PART I: THE STATE REORGANIZATION ACT, 1956 The State Reorganization Act, 1956 is a reflection of the conundrum between decentralization and dilution of Doctrine of Territorial Integrity. The Constitution allows for redrawing of territorial boundaries by a simple majority in Parliament. This shows that the framers did not envisaged perpetuity when it comes to the internal boundaries, rather they saw the redrawing to accommodate and assimilate the changing needs. The Supreme Court in the case of In re Berubari Union stated: “The Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.” This was in sharp contrast to what is seen in the US, where the protection of ‘State’s right’ is important, and Doctrine of territorial integrity finds a place in the Constitution. The position of federalism and territorial integrity in India and the US can be credited to how these federations came into existence. As a result, the Indian federalism is seen as an “indestructible Union of destructible units.” Independent India inherited the political borders drawn by the British which continued till 1956, resulting in the continuation of multicultural and multilingual states in India. Drawing of state borders along cultural and linguistic lines was seen as a solution to the continuously emerging trends and challenges in Indian politics, and also as a way of reflecting the federal character of the nation-state. Besides, the existing borders did not hold much rationale when it came to the existing conditions of India. The State Reorganization Act, 1956, from the perspective of classical federal states, such as the US would appear as abolishing the existing units, but taking into consideration the Indian context, such reorganization gave way to linguistic administrative units. Thereby, aiding in imbibing the mother tongue in administrative and judicial capacity, and thus, giving way to grass-root governance. In addition, such dilution of territorial integrity was aimed at ensuring that the marginalized sections of the society can become active participants in the democratic processes of the country. This reorganization destroyed some existing states like earlier Madras Presidency or the Bombay Presidency and gave in its place states like Tamil Nadu, Andhra Pradesh, Maharashtra and Gujarat. One cannot imagine a large state like Texas getting split up for administrative efficiency. The case of State Reorganization back in the 1950s was a demand which arose from the bottom rather than something which was imposed on the states from the top. Thus, one can say that by having our own interpretation of territorial integrity we are moving towards a federalism which gives greater recognition to the state’s desires and autonomy. According to Mann, ‘Such reorganization has strengthened the federal structure of Indian nation-state and had also aided in the nation building.’ The dilution of the concept of territorial integrity can also be seen in the light of ethno-federalism, wherein the internal borders are drawn along ethnic lines, in order to create self-governing units. Such creations are often seen as a way of accepting regional aspiration without destabilizing the larger socio-politico structure. It is said that the success rate of such creation is more than one is ready