After the partition of the subcontinent in 1947, water sharing became a pivotal concern between the two newly formed nations—India and Pakistan. This was largely due to the geographical positioning of the rivers, as the headways and the control of water flow were in India, while most of the usage was downstream in Pakistan. Several disputes started arising over water distribution, escalating tensions, inevitably leading to armed conflict.
In a bid to prevent further hostilities, a tentative agreement was signed between the two states in 1948; however, this agreement was fragile and temporary. This eventually led to the formulation of the Indus Waters Treaty (IWT) in 1960.
The Indus Waters Treaty: Framework and Provisions
The Indus Waters Treaty was ratified on September 19, 1960, a deal brokered by the World Bank, which also acted as a guarantor of the agreement. The framework behind the treaty was the concise distribution of the six rivers lying under the Indus River System:
- Eastern rivers (Ravi, Beas, Sutlej): allocated to India for exclusive use.
- Western rivers (Indus, Jhelum, Chenab): allocated to Pakistan, although India is allowed limited non-consumptive use (e.g., for irrigation and hydropower without storage).
The treaty also established a permanent Indus Water Commission that included representatives from both countries. Furthermore, a dispute resolution mechanism was created, including access to neutral experts and an Arbitration court. The ideology behind the careful creation of the ADR mechanism denoted the willingness of the two states to mutually agree to a peaceful solution in case of disagreements.
International Law and the Principle of Treaty Obligation
The principle of pacta sunt servanda, — Latin for “agreements must be kept,” is a fundamental principle of international law and forms the foundation of treaty law. Since there are no legal implications for states to oblige international law, it follows that once signed, treaties must be honoured in good faith. Without adherence to this principle, the entire framework of the international treaty law would collapse, rendering agreements meaningless, leading to international disputes, undermining trust between states, and dire diplomatic consequences.
The principle is indoctrinated in the Vienna Convention on the Law of Treaties (VCLT), which codifies the rules governing the creation, interpretation, functioning, and termination of treaties between states. It was created in 1980 and has since become a foundational document in international treaty law. The key articles relevant to the issue at hand include:
- Article 54 states that treaties may be terminated only in conformity with the treaty’s provisions or by mutual consent.
- Article 62 provides the mechanism to abandon treaty provisions by states in case of unforeseen circumstances that radically transform the performance of the obligations necessary for authenticating the agreement.
Implications
India:
Although neither India nor Pakistan is a signatory to the Vienna Convention, many of its key provisions are regarded as customary international law, indicating that they apply regardless of formal ratification.
Under Article 54, India cannot withdraw from the Indus Waters Treaty unilaterally unless Pakistan also agrees or the treaty includes a termination clause, which it does not.
Article 62, on the other hand, presents a narrow window for withdrawal, requiring proof of a radical transformation of circumstances. India has cited national security, terrorism, and water scarcity as justifications for invoking this clause. However, such reasons are difficult to substantiate legally under international norms. Withdrawal under Article 62 is rarely accepted, as it opens the door to treaty violations based on subjective claims.
India could face political regression and strong diplomatic resistance as a consequence of unilaterally opting out of the treaty agreement against Article 54 of VCLT. Not only does the Treaty lack a termination clause, but it also encourages dispute resolution mechanisms to be adopted in case of disagreement. Additionally, abandoning the treaty could become legally questionable for India under customary international law and upholding pacta sunt servanda.
Furthermore, another pertinent concern that should arouse India is the political instability that would unfold throughout India by abandoning the Indus Waters Treaty. The relevant action would invoke national and global tension for India. This was made evident following the aftermath of Operation Sindoor – the global actors discouraging and standing apart from India’s military action. It is profoundly stated that walking away from the treaty could lead to enhanced military escalation between Pakistan and India, a reality most likely both countries would rather evade.
Pakistan:
For Pakistan, the Indus Waters Treaty is more than just a bilateral agreement; it is a matter of national security, economic survival, and sustenance. The western rivers—Indus, Jhelum, and Chenab—are essential to Pakistan’s agricultural productivity, which remains a cornerstone of the country’s economy and food source. The uninterrupted flow of these rivers is vital for the irrigation of vast agricultural areas that sustain millions of Pakistanis. In this context, the treaty represents a critical lifeline for Pakistan, safeguarding its access to water resources necessary for economic development, food security, and the livelihood of a significant portion of its population.
Given the reliance on these rivers, any attempt by India to unilaterally withdraw from the treaty or alter the existing terms would have profound consequences for Pakistan. Such actions would not only jeopardise Pakistan’s water security but also set a dangerous precedent in international diplomacy, where the sanctity of treaty obligations is compromised.
From a legal standpoint, Pakistan strongly maintains that India’s unilateral withdrawal from the Indus Waters Treaty would contravene fundamental principles of international law. The Indus Waters Treaty lacks a termination clause, precluding India from withdrawing unilaterally without Pakistan’s consent. The treaty’s dispute resolution framework, which includes the involvement of neutral experts and arbitration, encourages peaceful, diplomatic resolution rather than unilateral action. Furthermore, Article 62 of the VCLT allows withdrawal only in cases of a “radical transformation of circumstances,” a threshold that India’s claims of national security, terrorism, and water scarcity do not meet, thus making any unilateral withdrawal legally untenable and potentially setting a dangerous precedent for the abandonment of long-standing treaties based on subjective justifications.
Pakistan maintains that any attempt from India to stop Pakistan’s water will be considered an act of war, and as a retaliatory measure, Pakistan has threatened to suspend the Simla Agreement of 1972. This document, among other things, establishes the Line of Control and states that the ‘Kashmir issue’ will be settled bilaterally between the two nations, without external actors playing a role. Even though the agreement has not been suspended, its suspension will entail that a war can be initiated on the Kashmir front, or, on the flip side, an external actor, perhaps even the US president, may mediate this matter.
The Cost of Withdrawal
India may perceive withdrawal as a proportionate response to evolving challenges, but the repercussions could be far-reaching and may include:
- Imbalances between regional powers
- Legal scrutiny under international law
- Diplomatic backlash
- Damage to its global standing and reputation
Abandoning the IWT would reflect on Pakistan as an act of aggression, which could invoke economic and military warfare. It would further damage the diplomatic channels between the two countries.
Coexisting in a multipolar world, the abandonment of the treaty by India and Pakistan would reflect on India pushing for a unipolar state order in the South Asian region. As both countries are already nuclear-armed, the conflict would act as a catalyst for the neighbouring countries to manifest the inevitable international dilemma of sovereignty.
As seen previously, the US and China may pressure India to mediate the dispute with Pakistan, which would damage India’s autonomy. India may lose out on its strategic alliances with international organisations such as the United Nations, the UN Security Council, and the World Bank. As a guarantor of the IWT, the World Bank would certainly not support India’s unprovoked decision.
India has an opportunity to reassess its stance and engage with Pakistan through the dispute resolution mechanisms embedded in the Indus Waters Treaty. Pakistan continues to believe that the IWT offers the best framework for ensuring the equitable distribution of water resources, as long as both nations adhere to its provisions. Both countries must prioritise regional peace, stability, and cooperation by engaging in dialogue and reinforcing their commitment to international law.
