India's Indus Waters Treaty Suspension Has Legitimacy

Fundamental and unforeseen changes in circumstances allow India to hold the treaty in abeyance

- STELLINA JOLLY

Following the terror attack of 22 April on civilians in Pahalgam that India traced to Pakistan, the Indian government announced that the Indus Waters Treaty (IWT) of 1960 would be held in "abeyance" with immediate effect. While 'abeyance' lacks a formal status in international law, the closest corresponding legal concept is 'suspension' under Article 62 (1) of the Vienna Convention on the Law of Treaties (VCLT).

It recognizes a change in circumstances as a valid but narrowly constructed ground for suspending or terminating treaty obligations if: (a) the change is unforeseeable and fundamental and (b) radically transforms a party's obligations. Given these conditions, can India's actions be justified within the international law framework?

Fundamental change: A major point of contention is whether Pakistan's support of cross-border terrorism amounts to a fundamental change in circumstances. In the case of A. Racke GmbH & Co. vs Hauptzollamt Mainz, the European Court of Justice recognized the outbreak of hostilities as constituting a fundamental change of circumstances.

The IWT's preamble acknowledges that the satisfactory utilization of the Indus river system requires continued cooperation in a spirit of goodwill and friendship. Similarly, Article VII emphasizes future cooperation and "common interests in the optimum development of the Rivers." These provisions indicate good faith as an essential condition for the IWT's performance.