Over the past couple of weeks, we have been constantly hearing the Indian bluster about unilaterally withdrawing from the Indus Waters Treaty. Pakistan’s categorical response has been that India cannot unilaterally withdraw from it. Can India counteract Pakistan’s claim and assert that it has the right to unilaterally withdraw from this treaty? If so, what rights and remedies does Pakistan have in case of a unilateral Indian withdrawal?
Based on a review of the treaty, it is clear that there is no express term in it regarding a unilateral withdrawal. The clause regarding termination of the treaty provides that it can only be terminated by mutual agreement of both parties on the basis of a mutually agreed upon and duly ratified treaty. But does the absence of an express provision on unilateral withdrawal affirmatively establish that neither party can withdraw from the treaty or is there an implied right to unilaterally withdraw under certain circumstances or on certain grounds?
There is no specific or binding set of international laws that would govern this treaty partly because of the persuasive nature of international law itself and partly because both Pakistan and India may not be signatories to the relevant international convention. One such convention is the Vienna Convention on the Law of Treaties 1969 , which is instructive in this regard. It provides two grounds for termination in case unilateral withdrawal has not been expressly provided in the treaty. One is establishing that the parties had admitted the possibility of a unilateral withdrawal and termination. This is not applicable to the Indus Waters Treaty as the only provision in the treaty regarding termination does not specify the duration of the treaty and requires a duly ratified mutual agreement of both parties for termination. There is also no reference to any specific grounds for termination such as a change in the facts and circumstances surrounding the subject matter of the treaty. Therefore, it can be definitively concluded that the treaty was entered into for an indefinite time period.
The second ground for unilateral withdrawal relates to the nature of the treaty itself. According to one view, there is a presumption against unilateral withdrawal from treaties that establish an international regime for a particular area, river or waterway. The presumption, therefore, is that such treaties continue to be in force for an indefinite time period. According to the other view, this is a rebuttable presumption and parties are free to withdraw even from treaties of this nature. In light of the conflicting views and the absence of authoritative law on this issue, India could build and substantiate its case for unilateral withdrawal on the basis of the latter view. If it does so, what legal implications/consequences would it entail? Is there any deterrent that would give India pause and make it rethink its decision? Would a unilateral withdrawal constitute a breach of the treaty making India liable to pay any penalties/damages to Pakistan? Would Pakistan be entitled to any other remedies or legal recourse?
In case of India’s unilateral withdrawal, according to one view, the treaty would cease to exist and consequently neither Pakistan nor India would have any rights and obligations in connection with the treaty. Based on this view, India’s unilateral withdrawal would neither constitute a breach of the treaty nor would Pakistan be entitled to seek legal recourse through the prescribed dispute resolution methods in the treaty. Nonetheless, outside the four corners of the treaty, Pakistan would still have the right to submit the matter to the International Court of Justice’s (ICJ) compulsory jurisdiction. The ICJ takes compulsory jurisdiction in matters involving interpretation of a treaty. Furthermore, under ICJ’s compulsory jurisdiction, Pakistan can initiate these proceedings on its own as there is no requirement of a special agreement between parties to the treaty to submit the matter to the ICJ.
Therefore, Pakistan can effectively use its legal armoury to counteract the Indian blustering and make a compelling case against India’s right to unilaterally withdraw on the basis of the express terms of the treaty itself. If India persists and unilaterally withdraws from the treaty, Pakistan can exercise its right to initiate proceedings at the International Court of Justice.
India will not be able to conveniently walk away from this treaty as in addition to the potential economic fallout and its diplomatic compulsions, the legal ramifications serve as a powerful deterrent to India’s unilateral withdrawal.
Published in The Express Tribune, October 7th, 2016.