Suspending the Flow: India, the Indus Treaty and the Limits of International Law

India’s unilateral suspension of the Indus Water Treaty (IWT) in April 2025, following the Pahalgam terror assault,marks a major problem to Worldwide treaty legislation and regional stability. The IWT, brokered by the World Financial institution has lengthy served as a uncommon instance of sustained cooperation between India and Pakistan by allocating the western rivers to Pakistan and the jap ones to India. By invoking Articles 60 and 62, of the Vienna Conference on the Legislation of Treaties (VCLT), India claims justification for its actions on the grounds of a “materials breach” and “a basic change of circumstances.” These slim exceptions to the precept of pacta sunt servanda (treaties should be stored) are topic to strict thresholds underneath Worldwide Legislation. A detailed examination of those provisions, their thresholds and related worldwide jurisprudence reveals that India’s authorized rationale is deeply flawed. 

Article 60 VCLT- Materials Breach of a Treaty 

Article 60 permits termination or suspension of a treaty provided that the opposite get together commits a fabric breach. A cloth breach is outlined as both repudiation of the treaty or violation of a provision important to attaining the treaty’s object or goal. 

Bruno Simma, a former choose of the ICJ and an eminent authority on Worldwide legislation has argued that the Article doesn’t seek advice from the depth or gravity of the breach and as an alternative focuses on the “character of the treaty obligation” that’s being breached. The Gabcíkovo-Nagymaros Challenge (Hungary/Slovakia, 1997) choice regardingthe “Treaty Regarding the Development and Operation of the Gabcikovo-Nagymaros System of Locks (Treaty).” This treaty was initially signed between Hungary and Czechoslovakia to assemble a joint hydroelectric dam, enhance navigation and shield towards flooding of the banks on the Danube River. Hungary deserted work on the Nagymaros undertaking, citing environmental considerations, and later notified Czechoslovakia of its intention to terminate the 1977 Treaty. Czechoslovakia responded by unilaterally diverting the Danube and working the Gabčíkovo system for its personal profit.

The Worldwide Court docket of Justice (ICJ)  rejected Hungary’s makes an attempt to invoke Article 60 based mostly on arguments that Czechoslovakia (now Slovakia) violated Articles 15, 19 and 20 of the treaty in addition to normal rules of Worldwide Legislation. It firstly held that Article 60 may solely be invoked by particular treaty breaches, therefore breach of Worldwide Legislation or different treaties was not a floor. Secondly, Articles 15, 19 and 20 talked about the Joint Motion Plan which couldn’t be unilaterally breached. Right here, Hungary itself contributed to the impasse by suspending works at Nagymaros. Moreover, Czechoslovakia’s development of the diversion (Cunovo Dam) was authorized earlier than the time it diverted the water of the Danube. Therefore Hungary’s termination based mostly on the development itself was untimely.  

In mild of this, India’s declare that Pakistan’s alleged assist for cross-border terrorism constitutes a fabric breach is legally unsustainable. India’s argument depends on extraneous conduct — terrorism — which, nevertheless grave, doesn’t relate to the treaty’s water-sharing provisions. The IWT is a technical water-sharing settlement, and Pakistan’s compliance with its water allocation and technical cooperation obligations just isn’t in dispute. No clause within the IWT makes peace or non-support for militancy an “important situation” for its operation. Moreover, the IWT was negotiated within the backdrop of the 1971 battle between India and Pakistan and it was supposed to endure such conflicts. In mild of such a goal, the current suspension by India appears arbitrary. Equally Choose Oda’s dissent highlighted that the Treaty accounted for the environmental influence on the time of its getting into into drive. 

Even when Pakistan’s alleged actions had been framed as broader violations of Worldwide obligations, Article 60(5) VCLT limits the appropriate to droop treaties the place provisions shield the human particular person. Whereas the IWT just isn’t a humanitarian treaty per se, its perform – making certain entry to water for hundreds of thousands – implicates basic rights to life and livelihood. Unilaterally slicing off river flows, whilst retaliation, dangers breaching these norms. Beneath each the VCLT and ICJ jurisprudence, India can’t lawfully invoke Article 60 on these grounds alone.

Article 62 VCLT- Basic Change of Circumstances (Rebus Sic Stantibus) 

Article 62, VCLT codifies the doctrine of rebus sic stantibus, permitting a state to withdraw from or terminate a treaty provided that a really basic and unforeseeable change in circumstances has occurred. The supply is deliberately restrictive: the change will need to have been unexpected on the time of the treaty’s conclusion, will need to have constituted a necessary foundation of the events’ consent, and should radically rework the extent of obligations nonetheless to be carried out.

Mark E Villiiger, a Swiss choose who served within the European Court docket of Human Rights for Liechtenstein additionally emphasises the slim interpretation of the Article by stating that even when a change is key, the Article is probably not used as a floor for termination until exceptionally strict circumstances, that are to be utilized cumulatively have been met.  The ICJ has constantly interpreted Article 62 narrowly. In Fisheries Jurisdiction (UK v. Iceland, 1973), the ICJ rejected Iceland’s try and terminate a fisheries settlement, holding that adjustments in fishing circumstances and authorized regimes, whereas vital, had been neither completely unexpected nor ample to overturn the “important foundation” of the treaty’s consent. In different phrases, the rising burden of the efficiency of the obligations just isn’t seen and as an alternative it should be proven that the change of circumstances had rendered the efficiency “primarily totally different from what was earlier undertaken.” Equally, in Gabcíkovo-Nagymaros the ICJ acknowledged Czechoslovakia’s breakup as a political change however dominated it didn’t represent a basic change underneath Article 62 because the treaty’s core goal remained achievable. The applying of Article 62 solely in distinctive circumstances being a foundational requirement has been affirmed by the Worldwide Legislation Fee (ILC).

To additional illustrate the strict software of Article 62 VCLT, two main circumstances stand out. ṁ1998, the European Court docket of Justice upheld the suspension of a commerce settlement between the European Group and Yugoslavia solely after the outbreak of battle and the collapse of Yugoslav state establishments. The Court docket discovered that the upkeep of peace and functioning establishments was a necessary foundation for the treaty, and their unexpected destruction radically remodeled the obligations, thus justifying suspension underneath Article 62. Equally, within the Netherlands–Suriname, 1982, Netherlands suspended its growth help treaty with Suriname following a army coup and grave human rights abuses. The Dutch authorities argued that the coup constituted a basic, unexpected change that destroyed the democratic basis important to the treaty’s operation, assembly Article 62’s excessive threshold. In each circumstances, the change was unforeseeable and struck on the coronary heart of the treaties’ functions, radically altering the obligations of the events.

Neither demographic adjustments nor safety considerations had been thought of a necessary foundation of consent when the IWT was negotiated. The treaty’s preamble and negotiating historical past present the events’ major goal was passable utilization of the Indus Basin water by way of clear technical guidelines for allocation. The main focus was on water administration, mutual profit, and dispute decision, not on the political or demographic context, which was already risky on the time.

In contrast to the conditions in Racke and the Netherlands–Suriname case, India’s invocation of Article 62 to justify suspension of the IWT is basically flawed. The demographic adjustments, elevated water demand, and protracted safety considerations cited by India are evolutionary and foreseeable developments. The IWT was designed to face up to exactly such volatility, and its core obligations stay unchanged. Thus, the grounds raised for India’s reliance on Article 62 fall brief – 

A. Foreseeability: Inhabitants development, rising water demand, and regional safety volatility had been all foreseeable on the time the IWT was negotiated. 

B. Important Foundation: The IWT’s core goal is technical water allocation and administration, not the political or demographic context.

C. Radical Transformation: The obligations underneath the IWT—allocation and administration of river flows—stay basically unchanged. India’s want to make use of extra water or handle safety considerations doesn’t quantity to a radical transformation of the treaty’s core commitments.

ICJ and arbitral tribunals have emphasised that solely adjustments that destroy or basically alter the factual circumstances underpinning the treaty, such because the drying up of a river or a catastrophic pure occasion, may qualify underneath Article 62. Even then, Article 62(2) precludes reliance on this doctrine if the change is attributable to the get together in search of to invoke it.

The IWT’s design precludes Unilateral Exit 

Article XII of the IWT explicitly states that the treaty can solely be modified or terminated by mutual settlement between the events, thus, deeming unilateral withdrawal or suspension impermissible. The underlying agenda was to make sure permanence and stability and insulate the treaty from political fluctuations. The ILC’s Second Report on the Legislation of Treaties, which laid the groundwork for the VCLT emphasised that express provisions, if talked about, within the Treaty for its termination or suspension, override the overall doctrine of basic change of circumstances. Article 60(4), VCLT additionally provides priority to treaty-specific procedures on breach, reinforcing the IWT’s bar on unilateral exit.

As an alternative of adhering to the IWT’s inside dispute-resolution procedures – approaching the Everlasting Indus Fee, requesting a Impartial Skilled, or in search of arbitration – India merely unilaterally suspended the IWT and declared the Court docket of Arbitration “unlawful and void.” This immediately contravenes the foundational construction and procedural safeguards embedded in each the IWT and the VCLT. Article 65, VCLT requires adherence to a proper course of for any suspension or termination (notifying the opposite get together and a ready interval), which was additionally not noticed herein. Such actions undermine the precept of excellent religion in treaty efficiency (VCLT Article 26) and danger setting a precedent for the politicization of important assets.

Comparative Apply Undermines India’s declare 

India’s try and droop the IWT by invoking Articles 60 and 62 of the VCLT  is extraordinarily uncommon in worldwide water legislation. Though upstream states like Turkey, Ethiopia, and China have exercised unilateral management over transboundary rivers, none have efficiently invoked VCLT provisions to justify their actions. This underscores the authorized fragility of unilateral actions in transboundary water contexts.  Turkey diminished Euphrates flows to Syria and Iraq citing safety and growth wants however prevented invoking treaty legislation, as no binding settlement ruled water allocations. Ethiopia’s unilateral filling of the Grand Ethiopian Renaissance Dam (GERD) was framed round sovereignty and historic injustice quite than a proper Article 62 argument. Equally, China has withheld hydrological knowledge and altered flows on the Mekong and Brahmaputra however stays exterior most treaty frameworks, sidestepping authorized scrutiny. Notably, none of those states have been vindicated by worldwide courts, and the place authorized justifications had been tried, reminiscent of in Hungary’s failed Article 60 protection in Gabcíkovo-Nagymaros, they had been rejected. India’s case is distinct in that it’s get together to a long-standing, binding treaty, making its authorized obligations clearer and extra enforceable. By unilaterally suspending the IWT, India dangers violating not solely treaty legislation but additionally customary worldwide rules like equitable utilization and the no-harm rule, as enshrined within the UN Watercourses Conference.

Conclusion

The IWT stays legally binding, and India’s suspension constitutes a breach of its worldwide obligations. It undermines the great religion efficiency of treaties (VCLT Article 26) and suggests within the phrases of 1 evaluation, a “weaponisation of water” Upholding pacta sunt servanda is important not just for authorized coherence, but additionally for the hundreds of thousands who depend upon the Indus. 

Shambhavi Singh is a working towards lawyer within the Supreme Court docket and the Delhi Excessive Court docket, and Rudra Singh Krishna is a fourth-year legislation scholar at WBNUJS.

Image Credit score: PTI