Blood and water cannot flow together: India's deft use of lawfare in suspending Indus Waters Treaty

New Delhi: In the wake of the April 22 Pahalgam terror attack, India has deftly used international law as a tool to achieve its longstanding objective of ending Pakistan's support for terrorism. A nuanced understanding of the logic behind putting the 1960 Indus Waters Treaty (IWT) in abeyance exemplifies New Delhi's use of lawfare – a euphemism to describe the use of law to gain political objectives – to end Pakistan's support for cross-border terrorism. Contrary to Pakistan's assertion, New Delhi's actions are firmly grounded in the customary international law of clausula rebus sic stantibus and countermeasures.

The Vienna Convention on the Law of Treaties, 1969 (VCLT), is known as the treaty on treaties and is an indispensable starting point for interpreting modern treaty practice. The customary nature of the doctrine clausula rebus sic stantibus, enshrined under Article 62 of the VCLT, makes it applicable to the IWT. The doctrine permits states to suspend, withdraw, or terminate treaty obligations in the light of fundamental changes in the circumstances surrounding the agreement.

Due to the inherent risk of destabilising treaty obligations, certain conditions must be met to invoke the doctrine of fundamental change in circumstances. First, the change must be objective and not merely a subjective change in the attitude of the party invoking it. Second, as the International Court of Justice (ICJ) noted in the Fisheries Jurisdiction Case, the fundamental change should be radical. Third, the clausula doctrine should be invoked within a reasonable timeframe. Fourth, the change must be unforeseen when parties conclude the treaty.

The Indian government has issued a notification to its Pakistani counterpart explaining the reasons for suspending the IWT. New Delhi highlights the significantly altered population demographics, the urgent need to expedite the development of clean energy, and shifts in the assumptions related to water sharing under the IWT as fundamental changes that have led to its decision to suspend its treaty obligations.

The reasons given by New Delhi fulfil the threshold to invoke the clausula doctrine. India's argument is founded on the objective criteria of demographic change and clean energy needs, not a subjective attitude change. The radical nature of the change in circumstance is justified by the rapid increase in the population of India and Pakistan, as well as a need to shift to sustainable energy in light of significant climate change. Besides, neither New Delhi nor Islamabad foresaw these radical changes and needs when the treaty was ratified in 1960. As for the reasonable timeframe requirement, this is not the first time India has raised the issue of demographic change and clean energy needs. On August 30, last year, New Delhi notified Islamabad to review and modify the Indus Waters Treaty, but received no response.

Although not explicitly stated by New Delhi, an alternative argument to justify India's reaction to the Pahalgam attack is the customary international law of countermeasures. Codified by the International Law Commission in the Articles of State Responsibility for Internationally Wrongful Acts, 2000, countermeasures are actions a victim adopts against a wrongdoer to induce the latter's compliance with its international obligations. It is a key feature of the decentralised international order that allows the victim state to vindicate its right and restore the legal relationship with the wrongdoing state.

Although countermeasures are inherently wrongful, they excuse the victim from performing treaty obligations until the internationally wrongful act continues. Due to its scope for abuse, strict limitations are placed on the practice of countermeasures. Such actions should be reversible, temporary and proportionate to the injury suffered. Most importantly, countermeasures should be non-forcible; they should be used to procure the cessation of a wrongful act and obtain reparations.

The careful wording of the Cabinet Committee on Security implies that India is temporarily suspending its treaty obligations. New Delhi is unequivocal that the IWT will be in abeyance as long as Pakistan supports cross-border terrorism, a thorn in India's leg since the 1980s. While India's stand seems unprecedented, the response is in no way excessive to the 26 lives that were lost during the Pakistani-backed Pahalgam attack or other terrorist-related deaths in India.

India's use of countermeasures also finds precedence in international arbitral and judicial decisions. In the Air Service Agreements arbitral award of 1978, the tribunal recognised the right of a victim state to resort to countermeasures in response to another state’s violation of an international obligation. Similarly, in 1997, the ICJ reaffirmed that a breach of general international law justifies countermeasures in the Gabcikovo-Nagyamaros Project case. By fomenting terrorism against India, Pakistan has committed an internationally wrongful act, justifying India's countermeasures.

The immediate consequence of suspending the IWT is the disruption of the parallel dispute resolution mechanisms initiated by Pakistan and India regarding the Kishanganga and Ratle hydroelectric projects.

In August 2016, Pakistan raised objections with the World Bank on the design features of India's hydroelectric projects and sought a settlement through a neutral expert. It later withdrew the request for a neutral expert and sought an adjudication of the dispute before the Permanent Court of Arbitration (PCA). New Delhi was naturally frustrated with Pakistan's misuse of the procedural requirement of the IWT, which required the dispute to be settled in a graded mechanism.

As per Article IX of the IWT, minor technical questions should first be presented to the Permanent Indus Commission. If the issues remain unresolved, the 'differences' or 'disputes' are referred to a neutral expert appointed by the World Bank. If the neutral expert fails to resolve the differences, the case would be submitted to a court of arbitration.

When Pakistan approached the PCA without exhausting other remedies under the IWT, India requested the World Bank appoint a neutral expert in August 2016 because of unresolved disagreements regarding the hydroelectric projects. In 2023, New Delhi notified Islamabad to modify the IWT, but Islamabad refused to discuss the issue.

Currently, the PCA and the neutral expert have upheld their competence to resolve the issues raised by Pakistan and India, respectively. As a result, two parallel dispute resolution mechanisms are in place to resolve the same subject matter – the PCA, appointed at the behest of Islamabad, and the World Bank's neutral expert appointed at the request of New Delhi.

So far, India has refused to participate in the PCA proceedings citing inconsistent or contradictory outcomes. With the suspension of the IWT, New Delhi is currently exploring how to exit the neutral expert proceedings initiated in 2016. As a result, the dispute resolution mechanisms under IWT will likely remain in limbo.

The natural question remains: Can Pakistan escalate the issue of the suspension of the IWT? This does not seem easy.

The dispute resolution mechanism under the IWT does not reference settling any differences before the ICJ. Instead, the IWT has set up a graded system, which includes submission of disputes to the Indus Water Commission, consequently to a neutral expert and later to a court of arbitration if the issue remains unresolved. Due to India's non-participation in the PCA proceedings and plans to exit the World Bank's neutral expert proceedings, the dispute mechanisms under the treaty are currently in limbo.

Roadblocks regarding the ICJ's jurisdiction would make it difficult for Pakistan to initiate proceedings against India. The world court's jurisdiction in contentious proceedings is based on the consent of states. India, on its part, made reservations to the ICJ's jurisdiction over certain cases. As per one of the reservations made on September 27, 2019, India will not accept the ICJ's jurisdiction over disputes with the government of a state member of the Commonwealth of Nations. It was based on the Commonwealth reservation that the ICJ found that it lacked jurisdiction in the Aerial Incident proceedings instituted by Pakistan following the destruction of a Pakistani aircraft by India on 10 August, 1999.

This leaves Pakistan with the option to approach the United Nations Security Council with the help of China to explore political options condemning India. In this case, India may rely on other Permanent Members of the Security Council to veto any resolutions that may be critical of India's reaction.

Thus, by using lawfare as a viable instrument to further its political interests, India has reaffirmed its previous stand that blood and water cannot flow together.

(The writer is a New Delhi-based international law researcher. Views expressed are personal)

/as