Dec 23, 2024 08:59 PM IST
The Indus river system is a lifeline for both countries, particularly for Pakistan, where agriculture relies heavily on the waters of the Indus, Jhelum, and Chenab. Any disruption to the IWT would have devastating consequences
Jammu and Kashmir (J&K) chief minister Omar Abdullah recently voiced concerns about the impact of the Indus Waters Treaty (IWT) on the Union territory’s power generation crisis and sought compensation from the Union government for the restrictions encoded in the treaty. While India grapples with the internal demands arising out of some of the antiquated terms of the IWT, Pakistan continues to ignore the legitimate attempts by India to initiate discussions to modify the IWT, provided for under Article XII (3) of the treaty.
In August, India issued its fourth notice to Pakistan under Article XII (3), seeking government-to-government discussions. These notices seem to have been triggered by the World Bank’s dubious decision in October 2022 to allow parallel proceedings before the Neutral Expert and the Court of Arbitration; the climate crisis’ impact on the Indus river basin also has a role to play.
India’s notices came after years of frustration over Pakistan’s refusal to engage constructively in the implementation of the IWT. Pakistan, of course, has repeatedly chosen to ignore government-to-government negotiations. Its government and experts appear to believe that Pakistan should not engage with India in these discussions because India cannot unilaterally terminate the IWT. This perception may be unfounded, as India would be within its rights to move this way given Pakistan’s disregard for its treaty obligations under Article XII and continued abuse of the dispute resolution mechanism under the IWT to stall crucial hydroelectric projects in J&K, all of which amounts to bad faith conduct under international law.
The principle of pacta sunt servanda (agreements must be kept) is at the heart of international law, mandating that treaties must be honoured. However, this principle also requires States to act in good faith. Pakistan’s mala fide refusal to engage in discussions for the modification of the IWT or adhere to its established process for dispute resolution constitutes a material breach and is a violation of pacta sunt servanda. India could not have foreseen at the time of entering into the IWT without a termination clause that Pakistan would act deliberately and consistently to defeat the raison d’être of Article XII (3).
States have a right to terminate a treaty even if it does not contain a termination clause under international law in certain circumstances. Pakistan’s repeated refusal to engage with India on water-sharing issues, despite the framework of the IWT, is not just an inconvenience but a violation of Article XII (3) and international law. Under these circumstances, India has a legitimate case for pursuing termination of the IWT as its modification has been made impossible due to Pakistan’s antics.
India has consistently cited the significant change in population demographics and the climate crisis since the IWT was entered into in 1960 as reasons to seek a modification of the treaty. These fundamental changes in circumstances are also legitimate grounds for the termination of the IWT due to the principle of rebus sic stantibus (things standing thus) that recognises that fundamental change in circumstances releases a party from its treaty commitments.
The Indus river system is a lifeline for both countries, particularly for Pakistan, where agriculture relies heavily on the waters of the Indus, Jhelum, and Chenab. Any disruption to the IWT would have devastating consequences, particularly for Pakistan’s water security and agricultural output. But India, too, stands to suffer from continued hostilities over water usage.
India has honoured its commitments under the IWT, even during periods of war. However, with Pakistan’s bad faith conduct, India may now feel justified in reconsidering the treaty’s viability, as its frustrations are not limited simply to procedural disagreements; indeed, the Kishanganga and Ratle hydroelectric projects are crucial projects for J&K.
While the legal justifications for India’s position are strong, the geopolitical ramifications of terminating the treaty are complex. Both nations must recognise the importance of water security in a region already grappling with the climate crisis, population growth, and resource scarcity. The best outcome would be for Pakistan to return to the negotiating table and for both countries to update the treaty to reflect modern challenges that have arisen due to the fundamental changes in the Indus basin.
Meanwhile, India’s notices underscore a crucial reality: Treaties are built on mutual trust and cooperation. Without these, no legal document — no matter how robust — can stand the test of time. What remains to be seen is whether Pakistan will take this opportunity to come to the table or whether it will continue down a path that could lead to the end of one of the world’s most successful water-sharing treaties.
Shravan Yammanur is an advocate-on-record, Supreme Court. The views expressed are personal
Get Current Updates on…
See more
