On April 23, India unilaterally declared the Treaty of the Water of the Indo as “in suspense”, a term that is not recognized in the Treaty Law or is found in the IWT itself. The Vienna Convention on the Treaty Law (VCLT), the International Authorized Agreement on the Law of the Treaty, describes the release of a part of its treaty obligations as a “suspension.”
Treaties such as the IWT are not limited by time, and continue to perpetuity under article 42 of the VCLT. And according to article 57 of the VCLT, a treaty can only be suspended if it allows such suspension, or with the mutual consent of all the contracting parties. The IWT, a multilateral treaty with India, Pakistan and the World Bank as signatories, does not provide suspension and can only be completed or suspended unilaterally if a part commits a material violation of the treaty as described in article 60 of the VCLT. India’s accusations about Pakistan’s alleged role in Pahalgam’s attack are completely without foundation; But in any case, that attack has no link with the reach of the IWT or, assuming that Pakistan was involved hypothetically, constitutes a material violation of it.
The scope and obligations under the IWT, with which Pakistan meets, mainly deal with the allocation and use of the river’s waters, and by the way with their hydroelectric generation. Any unemployment, restriction or interference in the flow of water in the rivers assigned to Pakistan under the treaty, including Chenab, constitutes a clear violation by India of article III (2) of the IWT, which forces India to refrain from interfering with the flow of the Indo, Jhelum and Chenab Rivers.
In addition to these violations of the treaty, the customary law coded in article 2 of the ILC articles on state responsibility establishes that the realization in the breach of the international obligations of a State, which is attributable to it, constitutes an internationally unjustified act, which requires the payment of complete repairs to the affected parties. The violations of the obligations of the treaty of a State constitute a cousin facie an internationally illicit act, as stated by the Permanent Court of International Justice in the ‘Phosphates in Morocco’ and the famous arbitration ‘Guerrero del Arco Rainbow’. Therefore, the interference of India in the flow of the Chenab River constitutes an internationally illicit act and also places India in violation of article 26 of the VCLT, which encodes the principle of PACK SUNT SERVANDA, that is, the agreements must be honored. The guilt of India according to international law forces him to pay Pakistan’s repairs for the damage caused by his illegal acts.
India’s interference in Chenab’s flow constitutes an internationally illicit act.
Article IX of the IWT provides only two methods of resolution of disputes: technical disputes, including engineering issues, refer to a neutral expert, while the violations of the treaty and issues of their interpretation, which are legal disputes, are referred to the Permanent Court of Arbitration. In the current circumstances, India did not exercise this right, possibly, since it knew it was in unstable legal field to maintain the IWT “in suspense.”
Although the Simla Agreement, a bilateral treaty between India and Pakistan, emphasizes the resolution of bilateral disputes, cannot be trusted in undermining Pakistan’s right to resolve third party disputes, since India could be interpreting it to do so to do so. The IWT, signed in 1960, is prior to the Simla Agreement of 1972 for more than a decade and, according to article 28 of the Vienna Convention, as well as the usual international law, the treaties do not operate retrospectively. Therefore, the commitment to promote the resolution of bilateral disputes under the SIMLA Agreement does not limit Pakistan’s ability to highlight and process the violations of the IWT India, even through international forums such as the General Assembly, the Security Council and other UN agencies.
The International Court of Justice (CIJ) described the cases ‘Gabcíkovo-Nagymaros’ and ‘Pulp Mills’ that states cannot trust the perceived violations of the treaty or other internationally unfair acts as a premise to violate their own obligations of the treaty. To violate another international legal treaty or norm does not entitle a State to suspend its obligations to the State owed under the treaty in question; Instead, it constitutes a violation of said treaty for that state.
The interference of India with the flow of the Chenab River is not only a violation of the treaty, but also a violation of international humanitarian law considering the state of armed conflict between the two nations, since it prevents access to civilians to water. Article 54 (4) of the Protocol of 1977 I Additional to the conventions of Geneva on August 12, 1949, (AP i) specifically prohibits the impediment of water with the purpose of reprisals.
International law explicitly prohibits the destruction or deviation of natural or ecological resources, such as rivers, with the purpose of reprisals or to achieve military objectives. This is recognized through the inclusion of the principle in the Berlin rules on water resources 2004, which encode the usual law of water resources, and is part of a war crime under the Rome Statute of the International Criminal Court and the AP I.
During the recent military conflagration, India carried out attacks in the Nelam-Jhelum hydroelectric project, which caused Pakistan’s right to self-defense under article 51 of the UN Charter. To protect its guaranteed water flow under the IWT, in an armed conflict, Pakistan reserves the right to point to Indian dams and dikes in cross -border rivers as a military objective, if necessary and proportional, if these works are used “in the regular, significant and direct support of military operations and if the only attack is the only way to finish”, as signed in article 56 Task treatment, an attack of the task, an attack of the task, an attacks of the task. and now it is considered mainly usual international law.
This permissibility is reinforced taking into account that the CIJ went even further to protect state sovereignty when interpreting article 2 (4) of the UN Chart State faces an existential political threat.
India is violating the law of the use of force by threatening the political survival of Pakistan through its weapon of dams and bombs, since the Indo system provides 90 percent of Pakistan’s water.
The writer is former legal advisor of the Ministry of Foreign Affairs of Pakistan and the Faculty of Lums Law.
Posted in Dawn, May 17, 2025
