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