Is the Indus decision legal?

In the wake of the tragic Pahalgam terror attack, India has decided to unilaterally suspend the 1960 Indus Waters Treaty, citing “fundamental changes” driven by demographic shifts, environmental concerns and cross-border terrorism – a move widely regarded as an untenable legal claim.

The Indus Waters Treaty is a significant water- sharing agreement between these two nuclear-armed neighbours, signed in 1960 with the help of the World Bank. It specifies the distribution of waters of six rivers and their tributaries. The treaty allocates the western rivers – Indus, Jhelum and Chenab – to Pakistan and distributes the eastern Rivers including Ravi, Beas and Sutlej to India.

For the settlement of disputes, the treaty establishes a graded mechanism which operates at three levels. First, deliberation by Indus commissioners appointed on the behalf of both countries. Second, deliberation by the ‘neutral expert. And lastly, through a Court of Arbitration. In the midst of the ongoing tensions, India bypassed the established mechanisms mentioned in Article VIII and IX of the treaty and chose instead to suspend the treaty unilaterally.

In international law, the suspension of treaties is governed by the Vienna Convention on the Law of Treaties, 1969. The VCLT states that the termination of a treaty, or its suspension can only take place either in conformity with the provisions of the respective treaty or through the application of the articles of the VCLT.

As the Indus Waters Treaty contains no provision for its suspension, it can be suspended through the application of the VCLT. Article 60(1) of the VCLT states that a bilateral treaty can only be suspended if there is a material breach on the part of either of the states entitling the other party to terminate or suspend its operation in whole or in part.

There are two types of material breach under Article 60(3) of the Vienna Convention on the Law of Treaties (VCLT): (i) a repudiation of the treaty not authorised by the Vienna Convention, and (ii) the violation of a provision that is essential to the achievement of the treaty’s object or purpose. While the Vienna Convention does not specify the degree of breach required, a substantial violation of an essential provision is considered a material breach.

Similarly, Article 62 of the VCLT allows for the suspension of a treaty based on a “fundamental change of circumstances” if: (a) the existence of those circumstances was an essential basis for the consent of the parties to the treaty, and (b) the effect of the change radically transforms the obligations still to be performed under the treaty.

However, India’s justifications for suspending the 64-year-old Indus Waters Treaty – citing changed demographics and the need to accelerate the development of clean energy – do not meet the criteria for either a material breach or a fundamental change of circumstances.

India’s invocation of ‘cross-border terrorism’ as a ‘fundamental change of circumstances’ under Article 62 of VCLT to suspend the treaty also lacks legal and diplomatic basis. The Indus Waters Treaty withstood three India-Pakistan wars including the 1965 India-Pakistan war, the 1971 India-Pakistan war and the 1999 Kargil war as well as multiple military conflicts including the 2001-2002 terrorist attack on the Indian parliament, the 2008 Mumbai attacks, and the 2016 surgical strikes etc.

India’s baseless allegation against Pakistan’s direct involvement in the Pahalgam terror attack also lacks factual basis and rests purely on speculation. In the Nicaragua case, the International Court of Justice stated that an “obvious” action done by a state – such as the United States’ direct attack on Nicaraguan ports and oil installations and the mining of ports – constituted material breaches under the VCLT as well as the violation of the 1956 Friendship, Commerce and Navigation Treaty. In the present case, however, no such direct or attributable act by Pakistan has been demonstrated.

Thus, India’s move to suspend the Indus Waters Treaty is a legal façade, devoid of any substantive evidence required to invoke VCLT. Rather than a considered act of legal prudence, it appears to be a reactive measure provoked by the tragic Pahalgam terror attack in order to sabotage the agrarian economy of Pakistan which is heavily dependent on the water flow of the Indus Basin.

A writer is a former lawyer at the office of the attorney general for Pakistan.