Opinion Indus Waters Treaty, Simla Agreement ‘in abeyance’: What this means

Holding IWT ‘in abeyance’

The IWT guides the distribution of the waters of the Indus and its tributaries between India and Pakistan. On Thursday, India formally informed Pakistan that the treaty will be “held in abeyance” with immediate effect.

Now, the IWT itself states that the treaty cannot be altered unilaterally. Article XII of the IWT says that the treaty can only be terminated “by a duly ratified treaty concluded for that purpose between the two Governments”. The article also says that it “may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments”.

In its letter to Pakistan on Thursday, India invoked the provision for modification under Article XII (3). “These communications cited fundamental changes in the circumstances that have taken place since the Treaty was executed that require a reassessment of obligations under the various Articles of the Treaty read with its Annexures,” the letter by the Jal Shakti Ministry stated.

According to the letter, the “changes” include “significantly altered population demographics”, “the need to accelerate the development of clean energy”, and Pakistan not acting in “good faith”. “The obligation to honour a treaty in good faith is fundamental to a treaty. However, what we have seen instead is sustained cross border terrorism by Pakistan,” the letter said.

In international law, terms like “fundamental changes in the circumstances” and (the lack of) “good faith” allow countries to rescind their consent from agreements.

The law on treaties

The term “hold in abeyance” is not recognised in international law, and it does not find a mention in the Vienna Convention on the Law of Treaties of 1969 (VCLT), a multilateral treaty which regulates treaties among nations.

The VCLT recognises circumstances for “termination” or “suspension” of treaties. Article 62 states that “fundamental change of circumstances” may be ground for terminating a treaty under some conditions.

But the International Court of Justice (ICJ), in its rulings, has set a rather high bar for what constitutes a “fundamental change”.

Take for instance the ICJ’s ruling in Nicaragua v United States (1984). Nicaragua had taken the US to the ICJ for supporting anti-communist Contra rebels, which the central American country argued violated the United States’ obligations under the 1956 Treaty of Friendship, Commerce and Navigation. The US claimed that there had been a fundamental change in circumstances — namely the communist takeover by Sandinistas — that warranted a “need for collective self-defense”. The ICJ rejected this argument.

Dispute resolution

While India’s climate change argument may be considered a “fundamental change in circumstance”, it will be difficult to argue the same with regards to terrorism, since it does not directly fall in the purview of the IWT.

Note that in the 1997 Gabcikovo-Nagymaros project dispute between Hungary and Slovakia concerning the construction of a dam over the Danube, the ICJ had ruled that any change of circumstance must be of aspects within the treaty and not outside.

As such, the suspension of the IWT does not have any immediate repercussions, in that India at the moment does not possess the capabilities to curb the flow of Indus waters to Pakistan.

But Pakistan may, if it chooses to, engage the dispute resolution process enshrined in the treaty.

The IWT dispute-resolution mechanism under the IWT has three tiers. The first, involves the Permanent Indus Commission, setup under the treaty. The second, involves a neutral expert to be appointed by the World Bank. If she too fails to come up with an acceptable resolution, then the matter can be escalated to the Permanent Court of Arbitration (PAC).

As a response to two dams being constructed by India, Pakistan in 2016 moved the PAC, bypassing the neutral expert stage. India, however, refused to participate in the PAC proceedings, stating that the IWT “does not permit parallel proceedings before a Neutral Expert and a Court of Arbitration on the same issues”. This is likely to be India’s stance if Pakistan goes to the PAC once again.

And at the end of the day, the basic premise of international law is the consent of the nation. International law is not enforceable against the will of a sovereign nation. It works only when nations agree that it should work.

“Dispute resolution mechanism is not the key focus in international law. India abiding by international law is to bolster the legitimacy of its actions to the world. That the action it is taking against Pakistan is lawful and not otherwise,” said Prabhash Ranjan, a professor at the Jindal Global Law School.

Simla Agreement & the LoC

The agreement signed in 1972, in the aftermath of the 1971 India-Pakistan war (which Pakistan lost), primarily deals with two things: how bilateral relations are to be conducted between the two countries, and the recognition of the Line of Control (LoC) as the de facto border.

“Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent… any acts detrimental to the maintenance of peaceful and harmonious relations,” the agreement states.

These are not legally binding obligations, but contain what is commonly referred to as “best endeavour clauses” which both countries agreed to.

But Pakistan has never truly endeavoured to abide by the agreement — it has repeatedly violated the ceasefire, tried to annex positions on the Indian side of the LoC in Kargil in 1999, and frequently sponsored non-state actors to breach India’s sovereignty. Since 2019, when India abrogated Article 370 of the Indian Constitution, which granted a special status to Jammu & Kashmir, Pakistan too has claimed that India has violated the agreement.

For all intents and purposes, the Simla Agreement has been dead for a long time. In fact, even the ongoing suspension of talks between the two nations can be seen as a breach of the Simla Agreement. Pakistan suspending the treaty only means that it no longer recognises the LoC.

The Simla Agreement, as such, does not create legally binding obligations. Thus, it also does not mention a dispute resolution process, in case the treaty is violated by one country.