M Azam Tariq A Persistent Violation of International Law
The Indus Waters Treaty (IWT), signed on September 19, 1960, between India and Pakistan under the mediation and guarantee of the World Bank, was crafted to ensure fair and sustainable use of the Indus River system after the partition of the Indian subcontinent. The treaty allocated the Western rivers—Indus, Jhelum, and Chenab—to Pakistan, while the Eastern rivers—Ravi, Beas, and Sutlej—were assigned to India. India was granted limited rights to use the Western rivers for non-consumptive purposes such as run-of-the-river hydroelectric projects, flood control, and restricted agricultural use.
The treaty proved so effective that it survived full-scale wars in 1965, 1971, and 1999 without being violated. A major reason for this success lies in its robust dispute resolution mechanism, comprising three tiers: bilateral negotiations through the Permanent Indus Commission, adjudication by a Neutral Expert, and, finally, legal arbitration through the Court of Arbitration. These mechanisms were used to address disputes such as the Baglihar and Kishanganga hydroelectric projects.
In recent years, however, some official and unofficial circles in India have proposed suspending or even terminating the IWT unilaterally—especially after the Pulwama incident in 2019, when Indian authorities declared, “Blood and water cannot flow together.” In 2023, India formally wrote to the World Bank seeking a renegotiation of the treaty, a move that Pakistan outrightly rejected. This raises a critical question: Does India possess the legal authority to unilaterally suspend the treaty? Under international law, the answer is a firm no.
The Indus Waters Treaty is a binding international agreement. According to Article 26 of the Vienna Convention on the Law of Treaties (1969), every treaty in force is binding upon the parties and must be performed in good faith (pacta sunt servanda). Article 60 allows a treaty to be terminated or suspended only under specific conditions: mutual consent, a material breach, or a fundamental change in circumstances. None of these apply to the IWT at present.
Furthermore, the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses, though not ratified by either India or Pakistan, reflects customary international law. Its provisions are highly relevant:
Article 5 – Equitable and Reasonable Utilization: Riparian states must use shared watercourses fairly.
Article 7 – Obligation Not to Cause Significant Harm: States must avoid causing substantial harm to co-riparians.
Article 8 – General Obligation to Cooperate: Ongoing cooperation in water management is mandatory.
Article 33 – Settlement of Disputes: Disputes must be resolved peacefully through negotiation, mediation, or arbitration.
These principles are embedded within the IWT itself. The Permanent Indus Commission holds regular annual meetings, both sides are required to notify each other of any proposed projects, and technical or legal disagreements are resolved by designated international forums.
Judicial precedents also reinforce this obligation. In the Pulp Mills Case (Argentina v. Uruguay), the International Court of Justice (ICJ) ruled that states must notify and consult other riparian nations before initiating projects that might impact shared rivers. The IWT requires India to give Pakistan at least six months’ notice before commencing any construction on the Western rivers.
Despite the treaty’s existence, India has, at times, violated its provisions. For example, in the Baglihar case (2007), a Neutral Expert ruled that while the dam’s basic structure was permissible, India had indeed breached some technical restrictions. In the Kishanganga case (2013), the Court of Arbitration allowed India to proceed with the project but mandated that it must maintain a minimum flow to protect Pakistan’s Neelum-Jhelum hydro project. These rulings not only upheld the treaty’s relevance but also enhanced its legal standing and credibility.
The World Bank’s role as a guarantor lends additional legitimacy to the treaty in the international system. Any unilateral move by India to abrogate the IWT would not only violate international law but also undermine the credibility of global institutions like the World Bank, potentially isolating India diplomatically.
From an environmental and economic perspective, the treaty is indispensable. Around 80% of Pakistan’s agriculture and 90% of its food production depend on the waters of the Western rivers. Any disruption in their flow could trigger environmental degradation, droughts, internal displacement, and regional instability—violating not only international water law but also the UN Charter on Human Rights.
In conclusion, the Indus Waters Treaty is more than a bilateral agreement; it is a pillar of peace, stability, and legal order in South Asia. Unilateral suspension or termination of the treaty by India would not only be illegal under international law but also establish a dangerous precedent, jeopardizing other transboundary water agreements around the globe.
