IWT suspension: India's untenable legal arguments

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Following the Pahalgam terrorist attack, the Indian government, based on unverified information, accused Pakistan of "support for cross-border terrorism" and announced that "the Indus Waters Treaty 1960 will be held in abeyance with immediate effect."

India has invoked Article XII of the IWT. At the outset, it needs to be clarified that any modification or termination of the IWT, is contingent upon a "by a duly ratified treaty". In the absence of such a treaty, any unilateral action is constituted as a breach of the Treaty.

India's decision is predicated on two main arguments. The first is a claim of a "fundamental change in circumstances" and the second is an argument that "good faith is fundamental to a treaty".

India claims that a "fundamental change" has occurred due to "altered population demographics" and "to accelerate the development of clean energy". India's plea corresponds to the doctrine of rebus sic stantibus ("things thus standing"). This allows for the termination or withdrawal from a treaty if there has been a "fundamental change" from those existing at the time of its conclusion.

It is codified in Article 62 of the Vienna Convention on the Law of Treaties 1969 ("VCLT"). The doctrine serves as an exception to pacta sunt servanda ("agreements must be kept"). Article 62 lays down strict conditions for the applicability of "fundamental change", the main determinants being that the change was unforeseen and that the change radically transformed treaty obligations.The International Court of Justice (ICJ) has provided some clarity. In 1997, during the Gab?íkovo-Nagymaros case, Hungary suspended a treaty due to environmental and political changes. Following Czechoslovakia's dissolution, Slovakia became the successor state to the treaty obligations and Hungary argued that the treaty was terminated. The ICJ rejected this claim and although it acknowledged a political change, it rejected the fundamental change of circumstances argument.

India's reliance on the "fundamental change of circumstances", akin to Hungary's, is untenable. The ICJ has emphasised that even significant and unforeseeable political shifts do not justify treaty termination. The ICJ requires that such changes "radically transform the extent of obligations". India's claim, that population growth or climate change constitute fundamental change, is flawed, as these are predictable phenomena.

India's own actions confirm this. This is evident from India's early initiatives to manage population growth, such as the family planning programme launched in 1952. Climate change is also a predictable trend. The concept of climate change, due to human activities, was first proposed in the 19th century, decades before the signing of the IWT.

With regard to India's "good faith" argument it is important to understand the parameters of this doctrine. The underlying requirement is that good faith operates in tandem with pacta sunt servanda ("agreements must be kept"). The ICJ held, in the Nuclear Tests Case that, "just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation."

Thus, the spirit of good faith is to respect international obligations rather than breaking them. The sanctity of treaty obligations has also been affirmed by the Permanent Court of Arbitration (PCA) which has held that, "treaty obligations are to be executed in perfect good faith, [...] and [limit] the exercise of sovereignty of the State bound by a treaty."

As a violator, India's argument of Pakistan's lack of good faith is completely misplaced. India has not established how Pakistan's obligations, with regard to the IWT, have not been undertaken in good faith. On the contrary, Pakistan has remained fully committed to resolving all differences and disputes under the Treaty mechanisms, as is evidenced by its engagement with the Court of Arbitration and Neutral Expert. On the contrary, India's boycott of the arbitration proceedings, a treaty mandated mechanism, points towards India's malfeasance.

Contrary to upholding international law, India is now engaged in advancing incorrect and misplaced interpretations of well settled legal principles.