Context: Can the Indus Waters Treaty be suspended unilaterally?

Source: The Hindu

India was granted unrestricted rights over the three eastern rivers—the Ravi, Beas, and Sutlej—by the 1960 Indus Waters Treaty, while Pakistan was granted exclusive control over the three western rivers—the Indus, Jhelum, and Chenab—with limited rights to use the water for “non-consumptive purposes.” India declared that the IWT would be put on hold with “immediate effect” in the wake of the April 22 terror attack in Pahalgam.

It is impossible to unilaterally change the IWT. According to Article XII, the treaty can only be dissolved by a “duly ratified treaty” that has been approved by both states. The Vienna Convention on the Law of Treaties, 1969, the main convention governing agreements governing states, does not contain or accept the phrase “hold in abeyance,” as used by India in its letter to Pakistan.

A treaty can be repudiated under Article 62 of the Vienna Convention if circumstances have fundamentally changed from those that existed at the time of its conclusion. In the Fisheries Jurisdiction cases, the International Court of Justice confirmed that Article 62 codifies customary international law and is therefore obligatory regardless of formal ratification, despite the fact that India is not a party to the Vienna Convention and Pakistan has signed but not ratified it.

Hungary claimed that political and economic changes, in addition to the possibility of an environmental catastrophe, were good enough reasons to end the treaty in the 1997 Gabcikovo-Nagymaros Project dispute between Hungary and Slovakia over the building of a dam. The ICJ, however, dismissed these claims, pointing out that the treaty’s main goal—joint energy production—was not directly related to the political and economic shifts.

The rivers of the Indus basin are essential to more than 80% of Pakistan’s agricultural production and around a third of its hydropower production. But according to experts, India does not have the vast canal networks and storage infrastructure required to stop tens of billions of cubic meters of water from flowing into the western rivers. Significant harm downstream in Pakistan could result from the sudden, unplanned release of massive volumes of water.

Model Question:

“The Indus Waters Treaty (1960) has been hailed as one of the most successful water-sharing agreements in the world, yet it continues to face geopolitical and technical challenges.” Critically examine the relevance of the treaty in the present context.

Model Answer:

The Indus Waters Treaty (IWT), signed in 1960 between India and Pakistan, with the World Bank as a broker, allocates the waters of the Indus River system:

Eastern Rivers (Ravi, Beas, Sutlej) to India

Western Rivers (Indus, Jhelum, Chenab) to Pakistan, with India allowed non-consumptive use like hydroelectricity, navigation, and irrigation under conditions.

Despite multiple wars and hostilities, the treaty has endured for over six decades, often cited as a model for transboundary water-sharing.

Successes:

1. Durability: Survived the 1965, 1971, and Kargil wars.
2. Institutional Mechanism: Includes a Permanent Indus Commission, regular meetings, data sharing.
3. Conflict Management: Provides dispute resolution through neutral experts and arbitration (e.g., Baglihar Dam dispute, Kishanganga arbitration).

Current Challenges:

1. Geopolitical Tensions: Post-Uri and Pulwama attacks, India hinted at revisiting the treaty as a pressure tactic.
2. Climate Change & Water Stress: Changing river flows, glacial melt, and increased demand strain water availability.
3. Dispute Resolution Delays: Pakistan objected to Indian projects like Kishanganga and Ratle, leading to parallel proceedings (neutral expert vs. arbitration), which India considers a breach of treaty provisions.
4. India’s Limited Utilization: Despite rights, India uses a fraction of its share of Western Rivers due to geographical, technical, and financial constraints.

Way Forward:

1. Modernizing the Treaty: Include clauses to address climate change, glacial monitoring, and data sharing in real time.
2. Joint River Basin Management: Promote collaborative hydropower, flood control, and sediment management.
3. Diplomatic Engagement: Revive Indus Commission dialogue insulated from political tensions.

While the IWT remains a cornerstone of India-Pakistan water diplomacy, its technical rigidity and geopolitical vulnerabilities necessitate a recalibration without compromising its core principles. Strengthening institutional mechanisms and building trust are key to ensuring its continued relevance in the 21st century.