Source : INDIA TODAY NEWS
Following the horrific terror attack on a group of tourists in Jammu and Kashmir’s Pahalgam by Pakistan-backed terrorists, India has announced a slew of diplomatic measures, including the suspension of the Indus Waters Treaty of 1960. In response, Pakistani Prime Minister Shehbaz Sharif said that pausing the agreement would “amount to an act of war”.
India Today TV takes a deep dive into the treaty and what the “holding treaty in abeyance” really means for the two countries.
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CAN INDIA UNILATERALLY SUSPEND THE TREATY?
The Indian government had previously also warned of suspending the water-sharing pact as a retaliatory measure for the continued cross-border terrorism, threatening the security of the country. Now, following the Pahalgam attack, India has notified Pakistan of the suspension of the treaty.
The treaty itself does not contain any provision for suspension. Article XII of the treaty says that it can be modified or terminated only “by a duly ratified treaty concluded for that purpose between the two governments”.
HOW HAS INDIA TAKEN THIS STEP?
According to senior advocate Neeraj Kishan Kaul, international legal conventions, including the 1969 Vienna Convention on the Law of Treaties, allow for “suspending the operation of the treaty” in the case of “fundamental change in circumstances”.
Former Indus Water Commissioner PK Saxena, in a comment to news agency PTI on Wednesday, also clarified that there were a number of steps available for India when it came to suspension of the treaty obligations.
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“Although there is no explicit provision in the treaty for its abrogation, Article 62 of the Vienna Convention on Law of the Treaties provides sufficient room under which the treaty can be repudiated in view of the fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty,” Saxena said.
WHAT DOES THE VIENNA CONVENTION SAY?
Article 62 of the Vienna Convention on the Law of Treaties deals with the rules relating to the “fundamental change of circumstances”.
1. A fundamental change of circumstances, which has occurred with regard to those existing at the time of the conclusion of a pact, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless – (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty, and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the agreement.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty – (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty.
WHAT IS THE LEGAL ARGUMENT FOR INDIA ON THE GLOBAL STAGE?
Speaking to India Today TV, advocate Kaul suggests that it may be argued by New Delhi, that the current situation where India is being repeatedly subjected to terror attacks, and that the economic and physical safety and sovereignty of India are at risk due to actions undertaken by Pakistan, are the “fundamental change” in the “circumstances”.
This would allow India to make the legal argument on the international stage that the Indus Waters Treaty text itself says that the agreement was signed to give effect to “a spirit of goodwill and friendship” between the two countries. Due to the actions undertaken by Pakistan, there was now a “fundamental change” in the situation, which allows India to suspend its operations, even under international law.
“I don’t know what legal argument or advice has been advanced by our government for now. But, this is certainly an argument that can be made if Pakistan chooses to involve the International Court of Justice or the International Court of Arbitration in this matter,” Kaul said.
“India has been asserting the need for a review or modification of the treaty since 2023 on the basis of environmental challenges and terror attacks,” he added.
The Vienna Convention also allows for negotiations and international arbitration through the UN, which further means that the international community could call on the Governments of India and Pakistan to resolve the situation and uphold the treaty.
Historically, India has opposed any interference in the bilateral relationship and disputes between the two countries.
WHAT CAN INDIA DO ONCE OPERATION OF TREATY IS SUSPENDED?
Holding the treaty in abeyance does not mean that India would immediately stop the flow of water. The treaty governs several aspects of the sharing of the waters of the rivers Indus, Jhelum, Chenab, Ravi, Beas and Sutlej.
A look at the provisions of the treaty itself shows the options available. These include both short and long-term steps. Most simply, India could refuse to share monthly reports of the water flow data or refuse to allow Pakistani officials to enter India for any joint inspections of the existing flow. This would allow India to take harsher steps, including restricting water flow.
If choosing to escalate, India could close or reduce the flow of water into the Indus, Jhelum, Chenab, Ravi, Beas or Sutlej, by diverting river water into the canals and channels, or increasing the storage levels of the waters in the existing dams and reservoirs.
There are a number of dams, barrages, and canals already existing on these river systems, and restrictions have been imposed under the treaty on maintaining minimum flow, maximum level of permitted water diversion, permitted uses for the water, storage and maintenance of the dams, barrages and reservoir systems.
For example, India could choose to stop or reduce water flow levels into the Upper Bari Doab canal on Ravi, which is one of the oldest barrages on the Ravi-Beas river system, constructed before Independence. The Indus Waters Treaty, at the time of its signing, included specific provisions, barring India from closing the flow into the Upper Bari Doab Canal (UBDC) at its head without prior notice to Pakistan.
In the longer term, India could speed up the construction of ongoing or proposed hydropower projects, or construct more canals to divert a larger share of water from these rivers towards India.
Most recently, India and Pakistan have been fighting a legal battle in the Permanent Court of Arbitration (PCA) at The Hague over the Kishanganga Hydropower project on the river Kishanganga, which is a tributary of the Jhelum, and the Ratle Power project on river Chenab. Pakistan had raised concerns about the downstream water flow being impacted if India diverts water for these projects.
While the Kishanganga project has been operational since 2018, the construction on the Ratle project started in 2022 and is ongoing. India could withdraw from the ongoing legal proceedings before the World Bank-appointed neutral expert while the treaty is under pause.
This means that India could continue the construction and diversion of water for the Ratle project and disregard the agreements reached so far regarding the water storage at Kishanganga, which would affect the flow of the rivers Neelam and Jhelum.
With summer approaching its peak, any steps taken by India to restrict water flow towards Pakistan and increase flow towards the Indian channels could seriously affect the lives of Pakistanis who are dependent on the water supply for drinking, agriculture, electricity generation and transport.
SOURCE :- TIMES OF INDIA
