• Fundamental and unforeseen changes in circumstances allow India to hold the treat in abeyance

Following the terror attack of 22 April on civilians in Pahalgam that India traced to Pakistan, the Indian Government announced that the Indus Waters Treaty (IWT) of 1960 would be held in “abeyance” with immediate effect. 

While ‘abeyance’ lacks a formal status in international law, the closest corresponding legal concept is ‘suspension’ under Article 62 (I) of the Vienna Convention on the Law of Treaties (VCLT). 

It recognises a change in circumstances as a valid but narrowly constructed ground for suspending or terminating treaty obligations if: (a) the change is unforeseeable and fundamental and (b) radically transforms a party’s obligations. 

Given these conditions, can India’s actions be justified within the international law framework?

Fundamental change

A major point of contention is whether Pakistan’s support of cross-border terrorism amounts to a fundamental change in circumstances. In the case of A. Racke GmbH & Co. vs Hauptzollamt Mainz, the European Court of Justice recognised the outbreak of hostilities as constituting a fundamental change of circumstances.

The IWT’s preamble acknowledges that the satisfactory utilisation of the Indus River system requires continued cooperation in a spirit of goodwill and friendship. Similarly, Article VII emphasises future cooperation and “common interests in the optimum development of the rivers”. These provisions indicate good faith as an essential condition for the IWT’s performance. 

Pakistan’s persistent acts of support for cross-border terrorism have undermined the very foundation of cooperative engagement essential to fulfill the objective of the IWT. These acts have also critically altered the political landscape, impacting human rights, peace, and security in the region and making the treaty impossible to sustain on moral grounds. 

The opinion of the UN Secretary-General’s Study on the Legal Validity of the Undertaking Concerning Minorities, which acknowledges the relevance of moral impossibility in the context of treaties, offers a supporting precedent.

Climate change

At the time of IWT negotiations, climate change had neither joined the mainstream political debate nor the legal landscape. 

The IWT focused on the apportioning of water flows and management of rivers, rather than on water sharing per se. It covered dam construction for hydropower generation, etc., but recent studies have shown how climate change severely affects hydrological circles. According to the US space agency NASA, the Indus Basin is the world’s second-most water-stressed aquifer.

The IWT’s failure to accommodate climate change has implications. India’s climate targets include the goal of carbon neutrality by 2070; it also envisages achieving 50% of electricity generation from non-fossil fuels by 2030. 

The IWT restricts ambitious dam projects by India along the Indus River system, thereby impacting its ability to meet its goals. The effects of climate change could constitute a fundamental and unforeseen change of circumstances under the IWT as well. 

Legal efforts by the Government

Although this is the first time India has announced the abeyance of the IWT, New Delhi has made consistent attempts to modify it. Citing climate change, a Parliamentary Standing Committee in 2021 recommended re-negotiation of the IWT. 

After this, India sent two notifications to Islamabad to modify the IWT in line with Article XII (3). New Delhi highlighted an altered demographic profile, agricultural use, depleting groundwater, and the burning need for clean energy as fundamental and unforeseen circumstances that necessitated a reassessment of the treaty.

More importantly, India also referred to continued cross-border terrorism in Jammu and Kashmir as impacting the operation of the IWT. Pakistan insisted that any discussion on it should be undertaken through the Permanent Indus Commission (PIC). 

In contrast, India feels that the PIC, a byproduct of the treaty, does not have a mandate to play such a role. Article XII (3) allows modification of the IWT only by means of a new agreement concluded between the two Governments.

An assessment of other treaty practices, like the United Nations Framework Convention on Climate Change, indicates that treaty bodies are entrusted with implementation, whereas treaty modification is a political decision. 

The last meeting of the PIC took place in May 2022, which suggests a breakdown of the IWT’s institutional machinery. Hence, the post-Pahalgam attack decision of the Indian Government to hold the IWT in ‘abeyance’ should be viewed from the larger perspective of New Delhi’s prolonged and exhaustive efforts, which can reasonably be said to have exhausted all legal remedies under the 1960 treaty.

Sufficient legal basis 

Climate change has fundamentally altered water availability in the Indus Basin. Given Pakistan’s refusal to re-negotiate the IWT in the face of climate change and its support of terrorism that has nullified the spirit of cooperation, making the treaty’s performance impossible, there is sufficient legal basis for India’s invocation of changed circumstances.

However, India needs to tread cautiously, considering the ecological impact of climate change and the region’s interdependence. Moreover, decisions like these risk being followed by other state parties elsewhere that might be looking for a pretext to unilaterally terminate treaties and other international agreements. In addition, there is always the risk of retaliatory actions that could create complications.

(This article first appeared in Mint)

(The writer is Senior Associate Professor at the Faculty of Legal Studies, South Asian University)