INDIA’S recent unilateral suspension of the Indus Waters Treaty (IWT) with Pakistan has sent shockwaves through South Asia.
It represents a direct violation of international law, particularly the Vienna Convention on the Law of Treaties (VCLT).
This action challenges global principles related to transboundary water sharing and sets a dangerous precedent that could undermine other international water agreements worldwide.
Signed in 1960 and facilitated by the World Bank, the Indus Waters Treaty regulates the distribution of the six rivers in the Indus basin between India (the upper riparian) and Pakistan (the lower riparian).
The treaty allocates the eastern rivers—Ravi, Beas and Sutlej—to India, while Pakistan receives the western rivers—Indus, Jhelum and Chenab.
The treaty has endured wars and significant political tensions because it was designed to be a water-sharing framework that remains stable during diplomatic oscillations.
India’s decision to suspend the Indus Waters Treaty (IWT) by citing national security and terrorism-related concerns is legally questionable.
India argues that it has the right to suspend the treaty under Article 60 (termination or suspension of a treaty due to breach) and Article 62 (fundamental change of circumstances) of the Vienna Convention on the Law of Treaties (VCLT).
However, both Articles impose very high legal standards and India’s justification does not meet these standards.
Article 60 of the VCLT allows for the termination or suspension of a treaty only in cases of a material breach of its provisions by the other party.
A material breach is either a repudiation of the treaty not authorized by the Convention or a violation of a provision essential to achieving the treaty’s objectives.
Pakistan has not breached any provisions of the IWT.
All disputes related to hydropower projects have been addressed through the legal mechanisms established by the treaty itself, such as neutral experts and the Permanent Court of Arbitration (PCA).
India has not provided any evidence of Pakistan’s direct violation of the treaty.
Political tensions or accusations of harbouring terrorism are not recognized as valid grounds for suspension under Article 60, particularly since the treaty is a technical agreement focused on water sharing rather than a political document.
Invoking Article 60 is legally unfounded and inconsistent with India’s treaty obligations.
Article 62 addresses termination or withdrawal from a treaty due to a “fundamental change of circumstances” unforeseen by the parties, significantly altering their obligations under the treaty.
However, this article does not apply to treaties establishing boundaries or territorial arrangements, including resource-sharing agreements like the Indus Waters Treaty (IWT).
In the Gabcikovo-Nagymaros Project Case (Hungary v.Slovakia, 1997), the International Court of Justice (ICJ) explicitly stated that Article 62 has a limited scope and cannot be invoked lightly to justify withdrawal from long-standing treaties.
Furthermore, political tensions or allegations regarding non-water-related issues do not constitute a “radical transformation” of treaty obligations.
In summary, India’s position regarding Article 62 is legally indefensible.
The country’s decision to unilaterally suspend the IWT threatens to undermine global water-sharing frameworks.
If permitted, this action could set a dangerous precedent for upper riparian states to leverage water as a weapon in bilateral disputes, particularly against politically or economically weaker downstream countries.
A few of the agreements which can take this as a president are:- Mekong River Agreement (1995) involves China, Laos, Thailand, Vietnam and Cambodia.
As an upper riparian state, China could use India’s actions as a precedent to justify reducing water flows to the lower Mekong basin countries.
As an upstream country, Nile River Basin Cooperative Framework – Ethiopia might use a similar argument to limit water access for Egypt and Sudan.
In the case of the Jordan River Agreements, Israel could unilaterally invoke national security to restrict Jordan’s access to water.
By undermining the inviolability of these treaties, India’s actions could trigger a ripple effect of unilateralism, worsening water scarcity and escalating geopolitical tensions across different regions.
In three significant legal cases international courts have consistently rejected unilateral decisions, especially when they impact lower riparian states.
– Gabcikovo-Nagymaros Project (Hungary/Slovakia) – Hungary unilaterally abandoned a dam project, citing environmental and political concerns.
The International Court of Justice (ICJ) ruled that this unilateral termination was not legally justified, highlighting the importance of maintaining treaty obligations even in changing political landscapes.
– Pulp Mills Case (Argentina v.Uruguay) – Uruguay began construction on pulp mills without fully consulting Argentina, as required by the treaty.
The International Court of Justice (ICJ) found that Uruguay violated its procedural obligations but chose not to allow the suspension of the treaty.
This decision reinforced the importance of utilizing dispute-resolution mechanisms.
– Pakistan v.India – Kishanganga Arbitration (2013) – The Permanent Court of Arbitration (PCA) ruled in favour of Pakistan, restricting India’s dam project because it would impede the flow of western rivers.
This arbitration reaffirmed Pakistan’s water rights and emphasized the need for both parties to adhere to due process, which in the present case has not been exercised, which is a violation of the treaty.
India’s unilateral suspension of the Indus Waters Treaty is not just a regional provocation; it also violates international law, particularly Articles 60 and 62 of the Vienna Convention on the Law of Treaties.
The treaty has operated successfully for over six decades precisely because it has been insulated from political turbulence.
India’s actions threaten that stability and risk undermining other essential transboundary water-sharing frameworks worldwide.
The international community must condemn such actions, neutral legal mechanisms should be re-engaged and concerns should be addressed in the legal domain proscribed in the treaty.
Only through dialogue, adherence to legal agreements and respect for multilateralism can we ensure that water remains a source of cooperation rather than conflict.
—The writer is a International Law expert with a rich experience in negotiation, mediation and Alternate Dispute Resolution. ([email protected])
