International law & Indus wars

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https://www.dawn.com/news/1911542/in...law-indus-wars

ON April 23, India unilaterally declared the Indus Waters Treaty to be “in abeyance” — a term neither recognised in treaty law nor found in the IWT itself. The Vienna Convention on the Law of Treaties (VCLT) — the authoritative international agreement on treaty law — instead describes a party’s releasing itself from its treaty obligations as a ‘suspension’.

Treaties such as the IWT are not limited by time, continuing instead in perpetuity under Article 42 of the VCLT. And under Article 57 of the VCLT, a treaty can only be suspended if it allows for such suspension, or with the mutual consent of all contracting parties. The IWT, a multilateral treaty with India, Pakistan and the World Bank as signatories, does not provide for suspension and can unilaterally only be terminated or suspended if a party commits a material breach of treaty as described under Article 60 of the VCLT. India’s accusations of Pakistan’s alleged role in the Pahalgam attack are completely unsubstantiated; but in any event, that attack has no nexus with the scope of the IWT nor — assuming that Pakistan were even hypothetically involved — constitutes a material breach thereof.

The scope of and obligations under the IWT, which Pakistan complies with, principally deal with the allocation and usage of river waters, and incidentally with hydropower generation from them. Any stoppage, restriction, or interference in the flow of waters in rivers allocated to Pakistan under the treaty, including the Chenab, constitutes a clear violation by India of Article III (2) of the IWT, which obligates India to refrain from interfering with the flow of the Indus, Jhelum and Chenab rivers.

Apart from these treaty violations, customary law codified in Article 2 of the ILC Articles on State Responsibility establishes that conduct in the breach of a state’s international obligations, that is attributable to it, constitutes an internationally wrongful act, thus necessitating the payment of full reparations to affected parties. Violations of a state’s treaty obligations constitute prima facie an internationally wrongful act, as affirmed by the Permanent Court of International Justice in the ‘Phosphates in Morocco’ case and the famous ‘Rainbow Warrior’ arbitration. Thus, India’s interference in the flow of the Chenab river constitutes an internationally wrongful act and also places India in breach of Article 26 of the VCLT, which codifies the principle of pacta sunt servanda — ie, agreements must be honoured. India’s culpability under international law thus obliges it to pay Pakistan reparations for the damage caused by its illegal acts.

India’s interference in the flow of the Chenab constitutes an internationally wrongful act.

Article IX of the IWT provides only two methods of dispute resolution: technical disputes, including engineering issues, are referred to a neutral expert, while treaty violations and questions of its interpretation, which are legal disputes, are referred to the Permanent Court of Arbitration. In the present circumstances, India did not exercise this right, arguably as it knew it stood on shaky legal ground in holding the IWT “in abeyance”.

Though the Simla Agreement, a bilateral treaty between India and Pakistan, emphasises bilateral dispute resolution, it cannot be relied upon to undercut Pakistan’s right to third-party dispute resolution, as India might be interpreting it to do so. The IWT, signed in 1960, predates the Simla Agreement of 1972 by over a decade and, according to Article 28 of the Vienna Convention — as well as customary international law — treaties do not operate retrospectively. Thus, the commitment to promote bilateral dispute resolution under the Simla Agreement does not limit in any way Pakistan’s ability to highlight and prosecute India’s violations of the IWT, including through international fora such as the General Assembly, Security Council and other UN bodies.

The International Court of Justice (ICJ) outlined in the ‘Gabcíkovo-Nagymaros’ and ‘Pulp Mills’ cases that states cannot rely on perceived treaty violations or other internationally wrongful acts as a premise to violate their own treaty obligations. Violating another treaty or international legal norm does not entitle a state to suspend its obligations towards the state owed under the treaty concerned; instead, it constitutes a breach of the said treaty for that state.

India’s interference with the Chenab river’s flow is not only a treaty violation, but also a violation of international humanitarian law considering the state of armed conflict between the two nations, as it impedes civilians’ access to water. Article 54 (4) of the 1977 Protocol I Additional to the Geneva Conventions of Aug 12, 1949, (AP I) specifically outlaws the impediment of water for the purpose of reprisals.

International law explicitly prohibits the destruction or diversion of natural or ecological resources — such as rivers — for the purpose of reprisals or to achieve military objectives. This is recognised through the principle’s inclusion in the Berlin Rules on Water Resources 2004, which codify customary law on water resources, and is framed as a war crime under the Rome Statute of the International Criminal Court and the AP I.

During the recent military conflagration, India carried out strikes on the Neelam-Jhelum hydropower project, triggering Pakistan’s right to self-defence under Article 51 of the UN Charter. To protect its flow of water guaranteed under the IWT, in an armed conflict, Pakistan reserves the right to target Indian dams and dykes on transboundary rivers as a military objective, if it is necessary and proportional, if such works are being used “in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support”, as outlined in Article 56 of AP I, a treaty signed by Pakistan and now mostly considered customary international law.

This permissibility is reinforced considering the ICJ went even further to protect state sovereignty in interpreting Article 2(4) of the UN Charter, as held in its ‘Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons’, where the court refused to outlaw even the threat or use of nuclear weapons in extreme cases of self-defence, where a state’s political survival faces an existential threat.

India is violating the law of the use of force by threatening Pakistan’s political survival through its weaponisation of dams and barrages, as the Indus system provides 90 per cent of Pakistan’s water.

The writer is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

Published in Dawn, May 17th, 2025