Amid the perpetual political tension between India and Pakistan, the Indus water treaty (IWT) is perhaps the only international instrument which has proactively engaged both the countries in bilateral relationship. In fact, the treaty has been the most significant confidence building measure between India and Pakistan since 1960. Despite multiple wars and hostilities between the two countries, the treaty remained undisturbed and survived for more than five decades since its conclusion. After the Uri attack in 2016, India hinted towards unilaterally scraping the IWT. This has been objected to by Pakistan which has warned that any attempts by India to unilaterally revoke the IWT will result in the flagrant violation of its international treaty obligations and shall be treated as an “act of aggression” under international law. The present piece is an attempt to explore whether unilateral withdrawal by India from IWT violates the international law in general and amounts to “act of aggression” in particular as argued by Pakistan.
The Vienna Convention on Law of Treaties (VCLT) 1969 provides for the termination or withdrawal from a treaty. Article 54 of VCLT states that the termination of the treaty or the withdrawal of a party from the treaty may take place either in accordance with the provisions of the particular treaty or, at any time, by the consent of all parties after the consultation with the other contracting states. Further article 56 of the VCLT provides for the ‘Denunciation of or withdrawal from a treaty containing no provisions regarding termination, denunciation or withdrawal’. Article 56, Para 1 states that a treaty which contains no provision regarding its termination and which does not provide for the denunciation or withdrawal is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right of denunciation or withdrawal may be implied by the nature of the treaty. Article 12 (4) of the treaty provides that,
“ the provisions of this treaty, or the provisions of this treaty as modified under the provisions of paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments. The termination of the treaty is possible only if both India and Pakistan agree in writing. In other words, a termination treaty has to be drafted by both states and then ratified by both, to bring the IWT to an end. The treaty has no provision for unilateral “suspension”.
In other words, a termination treaty has to be drafted by both states and then ratified by both, to bring the IWT to an end. It would not be incorrect to assert that IWT is not regime-specific — but rather state-specific. It will not expire with regime change. It is binding on both the states equally and offers no exit provision. Therefore, so far as the question of IWT is concerned neither India nor Pakistan can unilaterally revoke it unless it consults the other party and obtains its consent in the form of an agreement in writing regarding the termination of the treaty. The obligation to consult and obtain consent of the other parties to the treaty has its origin in the 1871 London Declaration which states that, “it is an essential principle of the Law of the Nations that no power can liberate itself from the engagement of the treaty, nor modify the stipulation thereof, unless with the consent of the contracting parties by means of an amicable arrangement”. It is generally believed that a treaty is intended to be of perpetual duration and incapable of unilateral termination, unless, expressly or by implication, it contains a right of unilateral termination or some other provisions for its coming to an end. In the light of above discussion, it can be successfully argued that the IWT cannot be terminated unilaterally by any party. If any party does so it would lead to the violation of the principle of Pacta Sunt Servanda which is a well-accepted customary principle of the international law. Therefore, it would entail the State responsibility of the party which has unilaterally withdrawn from it. Now, so far as the question of consent of the other party regarding the withdrawal from the treaty is concerned, it is clear that Pakistan has expressly objected to any such move of India regarding the unilateral revocation of the IWT.
Another inquiry is whether unilateral withdrawal from the treaty by India would amount to the ‘act of aggression’ under international law. The General Assembly Resolution of 3314 (XXIX) which deals with the Definition of Aggression is relevant to the present Context. It defines Aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Article 3 of the Resolution lists out the different acts which may qualify as aggression. It is interesting to note that act of unilateral revocation of the treaty does not find a place under any of the acts mentioned in the article 3 of the resolutions. Almost similar definition of aggression was adopted under article 8 bis of the statute of ICC. Therefore it could be asserted that Pakistan’s claim that the unilateral revocation of the IWT by India would amount to the act of aggression does not find any support under general international law.
Another issue which is often flagged by India regarding the termination or withdrawal from IWT is the ‘act of terrorism’ by Pakistan. The factual veracity of claims of terrorism is beside the point. The attempt here is to examine the correctness of this legal claim at a theoretical level alone. It has been argued by the Indian side that the Pakistan’s involvement in the act of terrorism against India has resulted in the Fundamental Change of Circumstances under international law with respect to IWT. The fundamental change of circumstances has been codified under article 62 of the VCLT which has its basis under the customary principle of rebus sic santibus. Article 62 provides that a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties can be invoked by the State as a ground for the termination or withdrawal from the treaty if two conditions are fulfilled. First, the existence of those circumstances must constitute an essential basis of the consent of the parties to be bound by the treaty. Second, the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Thus, a fundamental change of circumstances can be pleaded in situations where either the subject matter of the treaty has been destroyed or the purpose of the treaty has been frustrated. An act of Terrorism per se neither finds its support in article 62 of VCLT nor in its commentary whether issued by the International Law Commission or by scholars like Mark Villager or Oliver Corten. So far as the IWT is concerned, the drying up of the rivers mentioned in the treaty may constitute fundamental change of circumstances unlike the act of terrorism which has not even remote connection with respect to the performance of the treaty. An act of terrorism would have resulted in the fundamental change of the circumstances if the performance of the obligations under the treaty could not be carried out because of it. Thus, a direct causal relationship needs to be established between the act of terrorism and performance of the IWT between the parties which almost impossible to establish in the present case.
Finally, it can be concluded that any such unilateral revocation of IWT by India or Pakistan would amount to breach of the international obligation which may incur state responsibility of that state under international law. Nevertheless, it is equally true that any such act of unilateral revocation of the treaty by India would not amount to the ‘Act of Aggression’ under international law. It was rightly observed by Ahmer Bilal Soofi a former federal law minister of Pakistan that,
“Treaties are state-specific obligations, and not regime- specific. These are not contingent upon deterioration of political atmosphere. It is much better that the states implement treaties through mutual trust, but even if there is deterioration of trust on account of extraneous events then that, per se, cannot be the sole reason to consider revocation of the treaty.”
Muhammad Sufyan Zia is pursuing LLM in International Law from the Faculty of Legal Studies at South Asian University (SAARC) New Delhi. His area of Interest is International law, Jurisprudence,and Comparative Constitutional law of SAARC Nations. The author would like to thank JURIST for the publication of this piece.
(Published by Jurist, November 22, 2018)