India’s notice
THE government of India has sent a notice to Pakistan, apparently under Article 12 of the Indus Waters Treaty signed by the two countries in 1960. The notice has not been made public, but the Indian press has been reporting that India is seeking modification of the treaty. Article 12(3) of the treaty allows the treaty to be modified and Article 12(4) allows it to be terminated but only by agreeing to another stand-alone treaty.
In simple terms, the life of the Indus Waters Treaty is indefinite until both sides decide to step out of it or amend it. The treaty has no provision for unilateral modification.
According to reports, the notice has been issued on the basis that India and Pakistan invoked two simultaneous forums for dispute resolution, instead of a ‘graded process’ on the ‘same question’. India has protested against the fact that this could lead to a potential contradictory outcome; therefore, it constitutes a material breach and hence there is a need to ‘modify’ the treaty.
However, Pakistan would argue that it is entitled to take its grievances under the treaty to the relevant forum. It is hardly a material breach.
Does India want to walk out of the Indus Waters Treaty?
Moreover, and perhaps most importantly, the World Bank has allowed both processes to run concurrently. If the institution which brokered the treaty is continuing with the same, then India’s protests seem to be politically engineered rather than legally valid. Instead of sending a notice regarding the modification of the treaty, India should raise objections to the maintainability of Pakistan’s disputes before one or both forums and contest the matter of a ‘contradictory outcome’ as a preliminary objection.
There is reason to suspect that the notice of modification is a precursor to a larger strategy to render the treaty ineffective somehow. This idea has been long in the making since Prime Minister Narendra Modi stated in 2016 that “blood and water cannot flow together”. A high-level meeting that was reportedly held on Sept 27, 2016, in New Delhi established an inter-ministerial task force to look into the treaty with a “sense of urgency”.
The present notice seems to be an outcome of the said task force’s deliberations, which would have included consultations with top Indian law experts, mostly from the Indian Society of International Law.
To the best of my knowledge, this is the first notice sent by one of the countries to the other under Article 12 of the Indus Waters Treaty, and in that sense it is unprecedented.
Where does India want to take this whole process? Is it aiming to preclude the role of the World Bank altogether and insist on bilateralism? Regrettably, India’s practice has not been confidence-inspiring. For instance, the presidential order passed on Aug 5, 2019, was a unilateral step to change the status quo in respect of the territories of Kashmir on either side of the Line of Control, that are simultaneously the subject matter of the Shimla Agreement and the UN resolutions. Pakistan had informally suggested ‘legal diplomacy’ as a way forward, whereby legal teams from both countries could come together to hammer out legal solutions on several technical bilateral issues.
The notice has started a debate as to whether India can create a legal case for withdrawing from the Indus treaty. In fact, it will not be easy because, according to some international law experts, treaties that establish a regime over a water body are seen to endure indefinitely, in the same way that many boundary treaties also endure.
The Vienna Convention on the Law of Treaties (1969) binds states to follow the procedure agreed by them for withdrawal or termination. State practice is heavily weighed against withdrawals, as was seen when Iran attempted to withdraw from the Non-Proliferation Treaty and North Korea from the International Covenant on Civil and Political Rights.
This issue also leads us to other questions; namely, what will happen to the obligations under the Indus treaty now that this notice of modification has reportedly been sent? The notice supposedly gives Pakistan 90 days in which to respond. Where does this time limit come from? Why has India waited a year to file this notice, when the ‘pause’ on proceedings was lifted in March 2022 and the disputes themselves are from 2016?
Pakistani water and legal experts need to sit together and deliberate the technical and legal consequences of this move, which appears to be a calculated one and looks to be the start of a ‘graded process’ for India to walk out of the Indus Waters Treaty.
It is crucial to do so before the crisis over water sharing between the two countries exarcebates to the point of no return.
The writer is a former caretaker federal law minister.
Published in Dawn, February 18th, 2023