Opinion Piece: Legal Implications of the Indus Water Treaty - By Adv.Madhumidha Viswalingam

Article 16/25

Following the heinous Pahalgam attack, which claimed the lives of innocent Indian civilians, India launched its first reprisal on 23rd April 2025, marking the inception of its strategic response against Pakistan. India invoked a temporary suspension of the Indus Waters Treaty as a decisive measure, displaying a substantial shift in the nation's diplomatic and geopolitical stance.

It is no secret that the relationship between the two nations has long been marked more by conflict than by camaraderie. The protracted dispute over the Indus River water system prompted the involvement of the World Bank, which put forward a formal proposal in 1954 to help resolve the same. Concluding intense discussions, in 1960, the treaty was signed by the Former Indian Prime Minister Jawaharlal Nehru and Pakistani President Mohammad Ayub Khan. According to the treaty, Pakistan being the downstream riparian state, was granted unrestricted use over the western rivers, encompassing 70% of the water flow, while India was granted use of the eastern rivers encompassing the remaining 30%.

For decades, the Indus Water Treaty defied all odds and served as a stabilizing force in an otherwise hostile dynamic. However, despite its resilience it did suffer its fair share of occasional hiccups. To deal with such, the treaty expounds on its dispute resolution mechanism which follows a unique three-tier system incorporating the Indus Commission set up as per Article VIII of the treaty. This framework ensures that there exists collaborative engagement and technical consultation before escalating to formal arbitration. The first tier, handled by the Permanent Indus Commission deals with questions regarding the treaty itself i.e. its interpretation and application. If the parties fail to reach a conclusion, the difference will be handled at tier two by a neutral expert. The last stage of the dispute is referred to the Court of Arbitration.

Despite blanketing a diverse range of provisions, the treaty contained inherent loopholes, one of which India notably invoked to announce its suspension of adherence to the agreement. At first glance, these ambiguities may not appear significant until a dispute arises.

A notable example lies in the very structure of the treaty as there exists no concrete enforcement mechanism. By declaring abeyance, India falls out of the legal framework of the treaty thereby the dispute resolution mechanism holds no weight. Even if Pakistan were to invoke the third level of the dispute resolution mechanism, considering the factor mentioned above, India’s consent would be essential to establish an ad hoc arbitration tribunal outside the treaty framework. This stems from the concept that though in private international law, an arbitration clause is said to exist despite the termination of the main agreement, it is still unclear whether the stance is followed in public international law and in the state of abeyance. Moreover, given the current situation and the path that led to this juncture, India’s stance has already signaled the improbability of such a tribunal from being constituted. Furthermore, the treaty contains no provision on procedure to revive the treaty after suspension adding to the confusion at hand.

The primary allegation against India is regarding its unilateral suspension of the treaty, which is seen to have constituted a violation of both the Indus Waters Treaty itself and the Vienna Convention on the Law of Treaties, 1969. Though India and Pakistan aren’t parties to the Vienna Convention on the Law of Treaties, both states have consistently shown their adherence to its principles, reflecting their acceptance of the provisions as customary international law.

It is pertinent to note that, neither the treaty nor the Vienna Convention defines and recognizes the term ‘abeyance’ as a valid ground for halting treaty obligations on states. However, the latter does recognize the term suspension which under Article 57 of the provides that: “The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting states.” Which isn’t the state at present.

A similar concept is also mentioned under the Indus Waters Treaty which permits termination under Article XII (4), which mentions that the treaty ““shall continue in force until terminated by a duly ratified treaty concluded for that purpose”.

Now the question arises as to how did India manage to pull off this strategy and how far will it be able to justify its stance? Prior to answering this question, one must investigate essential provisions pertinent to this stance.

The Vienna Convention states under article 42 that a treaty may be suspended only in compliance with the provisions provided under the same. In this context, the Convention outlines specific grounds under which a treaty may be lawfully suspended or terminated unilaterally on specific grounds, such as a material breach as under Article 60, impossibility of performance, under Article 61, or a fundamental change of circumstances as mentioned under Article 62.

It is this very article India invoked to warrant their move. Article 62 provides for the principle of rebus sic stantibus. This legal doctrine, as stated above, allows a state to seek withdrawal from or suspend a treaty when there is a 'fundamental change in circumstances'. This constitutes as an essential basis for the consent of the parties at the time the treaty is concluded. Citing the very atrocious or rather the barbarous nature of the attack that had taken place, India argued that it constituted a fundamental change in circumstances affecting the diplomatic relations between the two nations, while alleging Pakistan of restoring cross-border terrorism. Hence India’s contention at present is that since the foundational premises of the Indus Waters Treaty has been altered drastically that continued fidelity towards the treaty is not in line with the national interest. However, it is rather encouraged to be restrictively interpreted which is also reflected via the 1984 Nicaragua v. United States landmark case where the International Court of Justice rejected the United States’ argument that it could unilaterally terminate its treaty with Nicaragua based on changed circumstances.

Even if Pakistan was to approach the International Court of Justice to seek remedy, as per Article 36(2) of the respective statue, India has entered a reservation to this provision specifically excluding disputes with other Commonwealth countries from the Court’s jurisdiction.

As a last resort, when tensions escalate to a level that threatens international peace and security, as it is in present, Chapter VII of the UN Charter empowers the Security Council to intervene. It may investigate the situation and, if necessary, take appropriate measures to restore peace and stability under article 40 of the charter. It further stipulates that the Security council is authorized to provide provisional reliefs upon pending a final resolution under Article 39. Given the current situation, it is increasingly evident that this dispute has moved beyond the realm of diplomatic dialogue and is now affecting the lives of innocent civilians in both nations. This rift directly harms the stability as well as the very fabric of the economic, social and security of the states.

The Indus Water Treaty once stood as a rare symbol of cooperation amid persistent hostility between the two states. Now, however, it marks the beginning of a new chapter in their bilateral relations, marked by uncertainty and constant shifting dynamics. The future of this issue, and the evolution of the Indus Water Treaty itself, can only unfold with time.

(Adv. Madhumidha Viswalingam is a Cyber Law Associate at the Lincoln Law Global Chambers. The views expressed are those of the author and do not reflect the views of C3S)