India’s Suspension of the Indus Waters Treaty (IWT)

Background: The Indus Waters Treaty (IWT)

• The 1960 IWT allocates control over the waters of the six rivers of the Indus River System:
  • India’s rights: Unrestricted access to the eastern rivers — Ravi, Beas, and Sutlej.
  • Pakistan’s rights: Exclusive control over the western rivers — Indus, Jhelum, and Chenab, with limited access for India for non-consumptive uses.
• Following the Pahalgam terror attack on April 22, India declared the IWT to be “held in abeyance”, meaning a suspension of its operation, citing the need to reassess obligations under the treaty.

Is Unilateral Suspension of the IWT Permissible?

• Article XII of the IWT: This article clearly states that the treaty can only be terminated through a duly ratified treaty, which requires the mutual agreement of both India and Pakistan. Therefore, unilateral suspension is not permissible under the treaty’s provisions.
• “Abeyance” vs. Suspension: India’s use of the term “abeyance” is not recognized in international law and does not align with standard terminology found in treaties. According to Dr. Prabhash Ranjan, the correct legal term would be “suspension”, which refers to temporarily halting the operation of a treaty or parts of it, without terminating it.
• Vienna Convention on the Law of Treaties (VCLT): Though India is not a party to the VCLT, Pakistan’s signature means it is bound by many of its provisions, including those related to treaty suspension. The ICJ has affirmed that Article 62 of the VCLT (which allows for suspension in case of a “fundamental change of circumstances”) reflects customary international law.
• Fundamental Change of Circumstances: India claims the “fundamental changes in circumstances” as justification for suspension. However, the International Court of Justice (ICJ) has set a high bar for such claims. In the Gabcíkovo-Nagymaros Project dispute (1997), Hungary’s argument for treaty termination due to political and economic changes was rejected by the ICJ, as the changes were not directly linked to the treaty’s primary objective.

Potential Impacts on Pakistan

• Pakistan’s Dependence on Water:
  • Over 80% of Pakistan’s agriculture and about a third of its hydropower generation depend on the waters of the Indus Basin. Any disruption in water flow from the western rivers could have severe consequences.
• India’s Infrastructure Limitations:
  • India lacks the massive storage infrastructure and extensive canal systems that would allow it to withhold large quantities of water from the western rivers. India primarily has run-of-the-river hydropower plants, which do not have the capacity for large-scale water storage.
• Uncertainty and Potential Disruptions:
  • While India’s existing infrastructure might not allow for large-scale withholding of water, uncertainty over water flow could severely impact Pakistan’s economy, particularly its agricultural sector, which is highly dependent on a consistent flow of water.
  • Dr. Happymon Jacob from JNU highlighted that regulating the flow using India’s infrastructure could still cause disruptions, even without the capacity for full-scale withholding.
• Potential for Strategic Actions by India:
  • India could explore measures that it has never previously considered, including:
    • Redesigning hydroelectric projects to enhance water storage capacity.
    • Deploying ‘drawdown flushing’ techniques from its reservoirs, which involve the abrupt release of water, potentially causing damage downstream in Pakistan.
  • Impact of Abrupt Water Release: If India were to suddenly release large volumes of water, it could cause significant flooding and damage in Pakistan, leading to humanitarian and economic distress.

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