IWT.

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International law & Indus wars​


Sikander Ahmed Shah

7–8 minutes


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.
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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
 
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India will never restore Indus Waters Treaty with Pakistan: Amit Shah​


Reuters | Dawn.com
June 21, 2025

India will never restore the Indus Waters Treaty (IWT) with Islamabad, and the water flowing to Pakistan will be diverted for internal use, Home Minister Amit Shah said in an interview with Times of India on Saturday.

Delhi unilaterally suspended its participation in the 1960 IWT, which governs the usage of the Indus river system, on April 23, shortly after 26 civilians were killed in India-held Kashmir. Delhi, without evidence, blamed Islamabad for the attack. The latter has denied the allegations and called for a neutral probe.

The accord remains dormant despite a ceasefire agreed upon by the two nuclear-armed neighbours last month following their worst fighting in decades.

Earlier in the month, Prime Minister Shehbaz Sharif condemned India’s unilateral suspension of the IWT, describing it as a “blatant violation and act of water aggression”, and warned that Pakistan would give a befitting response in line with decisions made at the National Security Committee (NSC) meeting held on April 24.

“No, it will never be restored,” Shah told the daily.

“We will take water that was flowing to Pakistan to Rajasthan by constructing a canal. Pakistan will be starved of water that it has been getting unjustifiably,” Shah said, referring to the northwestern Indian state.

The latest comments from Shah, the most powerful cabinet minister in Prime Minister Narendra Modi’s cabinet, reveal Delhi’s intentions as Islamabad’s hopes for negotiations on the treaty in the near term.

Last month, Reuters reported that India plans to dramatically increase the water it draws from a major river that feeds Pakistani farms downstream, as part of retaliatory action.

Pakistan’s foreign ministry did not immediately respond to Reuters’ request for comments.

But it has said in the past that the treaty has no provision for one side to unilaterally pull back, and that any blocking of river water flowing to Pakistan will be considered “an act of war”.

Islamabad is also exploring a legal challenge to India’s decision to hold the treaty in abeyance under international law.
 

Held Kashmir’s CM opposes diverting waters to other states​

Indian-held Kashmir chief minister Omar Abdullah on Friday opposed diverting the state’s waters to Punjab and other neighbouring states now that the IWT with Pakistan stands suspended, asking why they should get more water when they already have three rivers while parts of the Union Territory are facing an acute water shortage, India’s Telegraph reported.

“Nobody will take it. At least I will not allow it as of now. First allow us to use our water, then we will talk about others. There is a drought-like situation in Jammu. There is no water in taps,” Abdullah told reporters.

Abdullah was reacting to the purported central government move to conduct a feasibility study for constructing a 113km-long canal to direct the surplus flow from the three western rivers of the Indus water system, the report said.

“Why should I take water to Punjab? There are already three rivers with Punjab (and the other two states) under the Indus Waters Treaty. Did they give us water when we needed it?” he was quoted as having said.

Omar referred to Punjab’s purported refusal to share water during disputes over the Ujh multipurpose project and the Shahpur Kandi barrage in Jammu in the past. “We were in dire straits then but they kept us waiting for years…. After years, some work was done on the Shahpur Kandi barrage,” he said.
 

Legal aspect of Indus Waters Treaty suspension​


Ahmer Bilal Soofi
April 25, 2025

AFTER the dastardly incident at Pahalgam in India-held Kashmir, Pakistan immediately distanced itself in unequivocal terms from the perpetrators.

India, however, continues to insist that the incident was orchestrated directly or indirectly by the Pakistani state though no shred of evidence for its claim has been made public or shared with Pakistan. Obviously, India is acting with mala fide intent.

Holding the Indus Waters Treaty (IWT) in abeyance on the basis of its allegations is in stark violation of Article 26 of the Vienna Convention on the Law of Treaties, 1969, which lays down that treaties “must be performed … in good faith”.

The unilateral holding in abeyance of the IWT will be treated by Pakistan as a casus belli and a step that is destructive to its vital national interests. Pakistan is heavily dependent on the Indus river system for its agricultural sector, which forms the backbone of the country’s economy.

More than 80 per cent of Pakistan’s irrigation depends on water from the Indus Basin. Disruption of water supplies is bound to aggravate the existing water scarcity, reduce crop yields, and precipitate domestic unrest, especially in the water-stressed provinces of Punjab and Sindh.

In the Vienna Convention and IWT, there are no provisions for a treaty being ‘held in abeyance’. However, only in the Vienna Convention are there provisions with regard to the suspension of a treaty.

It is therefore a question of law to be decided as a matter of first impression by a competent tribunal whether the terms ‘holding in abeyance’ and ‘suspension’ of a treaty are the same. In the absence of an authoritative pronouncement on this point in the context of the IWT, we are obliged, for the time being, to proceed on the assumption that the phrase ‘holding in abeyance’ is equivalent to ‘suspension’.

In the Vienna Convention, the provisions relating to the suspension of a treaty are laid down in Part V. Article 42 provides that a treaty may be suspended only in compliance with the provisions of the Vienna Convention. Article 57 of the Vienna Convention deals with the ‘suspension’ of treaties and provides that: “The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting states.”

Interestingly, the Indus Waters Treaty does not contain any provision relating to its suspension.
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Interestingly, the IWT does not contain any provision relating to its suspension, nor has India held any consultation with Pakistan in relation to its intent to suspend the treaty. The suspension of the IWT, therefore, is an egregious violation of the provisions of Articles 42 and 57 of the Vienna Convention.

Another article of the Vienna Convention that allows the suspension of treaties is Article 60 which provides that a treaty may be suspended by a party only when it is breached by the other party. India’s suspension is not based on the allegation of any breach by Pakistan.

There is absolutely no doubt that India’s action is highly provocative as it is based on flimsy grounds and mala fide intent. A three-pronged course is advised in order to deal with the emergent situation:

  1. Pakistan needs to weigh its options under the provisions of the IWT. Article IX of the treaty provides a mechanism for constituting a court of arbitration. However, there is a difficulty. In private international law, an arbitration clause in an agreement survives the abrogation or termination of the agreement. In the present case, which falls under public international law, it needs to be explored whether the arbitration clause in Article IX will survive the holding of the treaty in abeyance. However, it is clear that India will not be responding to any such initiative after it has declared the IWT’s abrogation.
  2. Under Chapter VII of the UN Charter, the UN Security Council is authorised to examine cases which may be a threat to international peace and to take appropriate action to maintain international peace and security. Holding the IWT in abeyance will certainly lead to friction between India and Pakistan and may give rise to further disputes. This will threaten international peace if relations between the two nuclear powers deteriorate further. Non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security in modern times. This dispute, therefore, is suitable to be dealt with under the provisions of Chapter VII of the Charter of the United Nations by the UN Security Council. The Security Council is authorised, pursuant to Article 40 of the Charter, to grant provisional relief, subject to the final resolution of the dispute referred to it under Article 39 of the Charter.
  1. The statement given by the five permanent members of the Security Council in June 1998, in which they undertook to intervene in case a threat to peace arose between the two nuclear powers, may be utilised as a reminder to the said states to play their agreed and promised role. For this purpose, communication may be officially conveyed to each member of the P5 documenting Pakistan’s legal and strategic arguments.
The IWT is the only treaty between India and Pakistan that has survived three major wars, uprisings in Jammu and Kashmir and various parts of India and Pakistan, and the military crisis of 2002. The treaty is cited across the world as a shining example of the successful settlement of a transboundary water basin conflict.

Pakistan’s National Security Committee has announced a number of actions that constitute legitimate counter-measures under international law. It is hoped that the UN secretary general’s office will play a role at the earliest before the situation deteriorates further.

The writer is ex-federal law minister & advocate Supreme Court.
 

What India’s Indus Waters Treaty suspension means for Pakistan​

The Indus and its tributaries that have sustained civilisations for thousands of years, now test the capacity of two modern nuclear-armed nations to cooperate.

Hassaan F Khan
April 24, 2025

India has just announced that it will no longer abide by the Indus Waters Treaty of 1960, placing the agreement in “abeyance” until Pakistan, it claims, credibly and irrevocably renounces cross-border terrorism. This is a potentially historic moment.

For over 60 years, through wars, near-conflict, and complete diplomatic breakdowns, the treaty endured. Water, unlike so much else in the India-Pakistan relationship, had remained predictable. That predictability is now in question more than it has ever been.

The decision potentially marks a turning point in how the two countries manage the most essential shared resource between them. There will be many other discussions in the days ahead that dwell on geopolitics. The goal for this article is simpler: to understand the implications for Pakistan’s rivers, crops, people, and policymakers.

What matters most in the days and months ahead is not the threat of a sudden cutoff, but the erosion of reliability of a water system that millions depend on every single day.

Before we get into what India’s suspension of the Indus Waters Treaty might mean, it’s worth recalling what the treaty actually did. Signed in 1960 after years of negotiation, with the World Bank as broker, the Indus Waters Treaty has been one of the most durable transboundary water agreements in the world.

It divided the six rivers of the Indus Basin between the two countries. India received the three eastern rivers (the Ravi, Beas, and Sutlej). Pakistan received the three western rivers (the Indus, Jhelum, and Chenab) which account for the majority (almost 80 per cent) of the shared basin’s water.

As part of the agreement, India retains the right to use the western rivers for non-consumptive purposes like hydropower, and for limited irrigation, but is not allowed to store or divert their flows in ways that harm downstream access. These constraints are deliberately specific and enforceable and include engineering design features and notification procedures. For Pakistan, this structure provides more than water. It provides the predictability needed to build an entire irrigation and water management system around.

The treaty also provides a standing mechanism for cooperation and conflict resolution. A Permanent Indus Commission exists, with one commissioner from each country, tasked with exchanging data, reviewing new projects, and meeting regularly.

Disagreements are resolved using a tiered process: technical questions go first to the commission, unresolved differences may be referred to a neutral expert, and legal disputes may be sent to an international Court of Arbitration, with the World Bank playing a role in both forums. This process has been used before to resolve disagreements over India’s Baglihar and Kishanganga dams — it is designed to prevent unilateral action. The treaty has no expiry date, and it includes no provision for suspension. Article XII makes clear that it can only be modified by mutual agreement. That has never happened.

One common question that arises in moments like this is whether India can simply “stop the flow” of water into Pakistan. In the immediate term, the short answer is no. Certainly not at the scale that would make a meaningful dent in flows during the high flow season.

The Indus, Jhelum, and Chenab are enormous rivers. Between May and September, as snow melts, these rivers carry tens of billions of cubic meters of water. India has some upstream infrastructure on these rivers, including the Baglihar and Kishanganga dams, but none of it is designed to hold back these kinds of volumes. These are run-of-the-river hydropower projects with very limited live storage. Even if India were to coordinate releases across all its existing dams, all it may be able to do is slightly shift the timing of flows.

The overall volumes in the western rivers during this high-flow period are far too large to meaningfully disrupt without flooding its own upstream regions. India already utilises most of the flow from the eastern rivers allocated to it under the treaty, so any new actions on those rivers would have a more limited downstream impact.

A more pressing concern is what happens in the dry season when the flows across the basin are lower, storage matters more, and timing becomes more critical. That is where the absence of treaty constraints could start to be felt more acutely.

Over the medium to longer term, the picture becomes more complicated. If India chooses to act outside the treaty framework, it opens the door to developing new infrastructure that would give it greater control over the timing and volume of flows into Pakistan. But even then, the path is far from straightforward. Any large-scale dam or diversion project would take years to build. The sites available in Indian-occupied Kashmir for significant water storage are limited and geologically challenging. The financial cost would be enormous. And the political risk would be even greater.

Pakistan has long said that any attempt by India to construct major new storage on the western rivers would be viewed as an act of war. In today’s age of satellites, these structures would not be invisible. They would be contested politically and possibly militarily.

There are also hydrological constraints. Holding back high flows on rivers like the Chenab or Jhelum risks flooding upstream regions in India itself. And the idea of diverting water out of the Indus Basin entirely, into other parts of India would require enormous infrastructure and energy costs that would be hard to justify, even in peacetime.

Beyond the basin, there are reputational and strategic risks. India is itself a downstream riparian on the Brahmaputra and other rivers that originate in China. This (often overlooked) reality has historically shaped India’s approach to respecting downstream rights. By suspending the treaty and acting unilaterally, it sets a precedent that could one day be used against it. This is not a cost-free move and could complicate its efforts to frame itself as a reliable partner in other international negotiations.

While the physical and political limits on disruptions by India are real, the erosion of treaty protections still matters. This is not because water will stop tomorrow, but because the system it supports was never built for uncertainty. The flows of the Indus, Jhelum, and Chenab are the backbone of our agriculture, our cities, our energy system. At this moment, we simply do not have a substitute for these waters.

For Pakistan, the impact of India’s disruption (if manifested) could be far-reaching. Pakistan’s irrigation system is one of the largest in the world, and it depends almost entirely on the predictable timing of flows from the western rivers. Farmers plan their sowing around those flows. Canal schedules are designed based on assumptions that have held for decades. If that rhythm is even slightly disrupted, the water system will begin to fray.
 
The most immediate risk is to predictability. Even if the total volume of water coming into Pakistan does not change immediately, small changes in when that water arrives can cause real problems. A late-season delay during the wheat planting cycle, or an unexpected dip in flow during the dry winter months, can mean missed sowing windows, lower yields, and higher costs. The Indus Delta is already shrinking due to reduced freshwater outflows. Further uncertainty in upstream flows could accelerate that degradation, with consequences for coastal livelihoods and fisheries.

Any shortfall or shift in river timing will force the state to make hard choices about water allocation. This risks intensifying inter-provincial tensions, especially between Punjab and Sindh, where water-sharing debates are already politically charged.

Then there’s energy. A third of Pakistan’s electricity comes from hydropower, generated by water flowing through Tarbela, Mangla, and other reservoirs. If upstream flows are reduced or poorly timed, it could cut into generation capacity. None of this is speculative. Pakistan is already a water-scarce country, living close to the edge. A system that has long been run on thin margins now faces a new layer of uncertainty.
 
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