Daijiworld Media Network - New Delhi
New Delhi, Apr 30: Following the reprehensible terror attack in Pahalgam on April 22nd, India has strategically employed international law to pursue its long-held aim of compelling Pakistan to cease its support for terrorism. New Delhi's calculated decision to place the 1960 Indus Waters Treaty (IWT) in abeyance serves as a compelling illustration of "lawfare"—the use of legal instruments to achieve political objectives—aimed at ending Pakistan's backing of cross-border terrorism. Contrary to Pakistan's likely protests, India's actions find solid footing in the established principles of customary international law, specifically the doctrine of clausula rebus sic stantibus and the concept of countermeasures.
The Vienna Convention on the Law of Treaties (VCLT) of 1969, widely recognized as the foundational text for interpreting modern treaty practices, provides the essential framework. The customary international law doctrine of clausula rebus sic stantibus, codified in Article 62 of the VCLT, is applicable to the IWT. This doctrine allows states to suspend, withdraw from, or terminate treaty obligations when there has been a fundamental change in the circumstances that existed when the agreement was concluded.
However, given the potential to destabilize treaty obligations, invoking the doctrine of fundamental change requires meeting specific conditions. First, the change must be objective, not merely a subjective shift in the attitude of the state invoking it. Second, as the International Court of Justice (ICJ) emphasized in the Fisheries Jurisdiction Case, the fundamental change must be radical in nature. Third, the clausula doctrine must be invoked within a reasonable timeframe. Fourth, the change must have been unforeseen by the parties when they entered into the treaty.
The Indian government has formally notified Pakistan, outlining the rationale for suspending the IWT. New Delhi points to significant alterations in population demographics, the pressing need to accelerate the development of clean energy sources, and shifts in the underlying assumptions related to water sharing under the IWT as fundamental changes justifying its decision to suspend its treaty obligations.
The reasons presented by India appear to satisfy the criteria for invoking the clausula doctrine. India's argument rests on the objective factors of demographic shifts and the imperative for clean energy, rather than a subjective change in stance. The radical nature of these changes is substantiated by the rapid population growth in both India and Pakistan, alongside the urgent necessity to transition to sustainable energy in the face of significant climate change. Furthermore, neither New Delhi nor Islamabad could have reasonably foreseen these profound changes and evolving needs when the treaty was ratified in 1960. Regarding the reasonable timeframe, India has previously raised the issues of demographic change and clean energy requirements. Notably, on August 30th of the preceding year, New Delhi communicated to Islamabad the need to review and modify the Indus Waters Treaty, but received no response.
While not explicitly articulated by New Delhi, the customary international law of countermeasures provides an alternative legal basis for India's response to the Pahalgam attack. Codified by the International Law Commission in the Articles of State Responsibility for Internationally Wrongful Acts (2001), countermeasures are actions taken by a victim state against a state that has committed an internationally wrongful act, with the aim of inducing the latter to comply with its international obligations. This concept is a crucial element of the decentralized international legal order, enabling a victim state to assert its rights and restore the legal relationship with the wrongdoing state.
Although countermeasures are inherently considered wrongful acts, they provide a temporary justification for the victim state to suspend its treaty obligations as long as the internationally wrongful act persists. Recognizing the potential for abuse, strict limitations are imposed on the application of countermeasures. Such actions must be reversible, temporary, and proportionate to the injury suffered. Crucially, countermeasures must be non-forcible and should be employed to compel the cessation of the wrongful act and secure reparations.
The carefully chosen words of the Cabinet Committee on Security suggest that India is temporarily suspending its treaty obligations. New Delhi has made it clear that the IWT will remain in abeyance as long as Pakistan continues to support cross-border terrorism, an issue that has plagued India since the 1980s. While India's stance may appear unprecedented, its response is arguably not excessive given the tragic loss of 26 lives in the Pakistani-backed Pahalgam attack, in addition to countless other terrorism-related deaths in India.
India's invocation of countermeasures also finds support in international arbitral and judicial precedents. In the 1978 Air Service Agreements arbitral award, the tribunal acknowledged the right of a victim state to resort to countermeasures in response to another state's violation of an international obligation. Similarly, in the 1997 Gabcikovo-Nagyamaros Project case, the ICJ reaffirmed that a breach of general international law can justify the use of countermeasures. By allegedly sponsoring terrorism against India, Pakistan has arguably committed an internationally wrongful act, thereby providing a legal basis for India's countermeasures.
The immediate consequence of suspending the IWT is the disruption of the parallel dispute resolution mechanisms initiated by both Pakistan and India concerning the Kishanganga and Ratle hydroelectric projects.
In August 2016, Pakistan raised objections with the World Bank regarding the design features of India's hydroelectric projects and sought resolution through a neutral expert. Subsequently, Pakistan withdrew its request for a neutral expert and instead sought adjudication of the dispute before the Permanent Court of Arbitration (PCA). New Delhi understandably viewed Pakistan's actions as a misuse of the IWT's procedural requirements, which stipulated a graded mechanism for dispute settlement.
According to Article IX of the IWT, minor technical questions should initially be addressed by the Permanent Indus Commission. If these issues remain unresolved, "differences" or "disputes" are to be referred to a neutral expert appointed by the World Bank. Should the neutral expert fail to resolve the differences, the case would then be submitted to a court of arbitration.
When Pakistan approached the PCA without exhausting the other available remedies under the IWT, India requested the World Bank to appoint a neutral expert in August 2016 due to ongoing disagreements regarding the hydroelectric projects. In 2023, New Delhi formally notified Islamabad of its intention to modify the IWT, but Islamabad refused to engage in discussions on the matter.
Currently, both the PCA and the neutral expert have asserted their competence to address the issues raised by Pakistan and India, respectively. This has resulted in two parallel dispute resolution mechanisms attempting to resolve the same subject matter – the PCA, initiated at Islamabad's request, and the World Bank's neutral expert, appointed at New Delhi's request.
Thus far, India has declined to participate in the PCA proceedings, citing the potential for inconsistent or contradictory outcomes. With the suspension of the IWT, New Delhi is now exploring options to withdraw from the neutral expert proceedings initiated in 2016. Consequently, the dispute resolution mechanisms under the IWT are likely to remain in a state of limbo.
The pertinent question that arises is whether Pakistan can escalate the issue of the IWT's suspension. This appears to be a challenging prospect.
The dispute resolution mechanism outlined in the IWT does not include provisions for settling differences before the ICJ. Instead, the treaty establishes a hierarchical system involving the Indus Water Commission, followed by a neutral expert, and ultimately a court of arbitration if the issue remains unresolved. Given India's non-participation in the PCA proceedings and its plans to exit the World Bank's neutral expert process, the treaty's dispute mechanisms are currently inoperative.
Furthermore, significant obstacles exist regarding the ICJ's jurisdiction in this matter. The World Court's jurisdiction in contentious cases is contingent upon the consent of the states involved. India, for its part, has placed reservations on the ICJ's jurisdiction over certain categories of cases. Notably, a reservation made on September 27, 2019, excludes the ICJ's jurisdiction over disputes with the government of a state member of the Commonwealth of Nations. It was this Commonwealth reservation that led the ICJ to conclude that it lacked jurisdiction in the Aerial Incident proceedings initiated by Pakistan following the downing of a Pakistani aircraft by India on August 10, 1999.
This leaves Pakistan with the option of approaching the United Nations Security Council, potentially with the support of China, to explore political avenues for condemning India. In such a scenario, India could likely rely on other Permanent Members of the Security Council to veto any resolutions critical of its actions.
In conclusion, by strategically employing lawfare as a viable instrument to advance its political objectives, India has reaffirmed its long-standing position that "blood and water cannot flow together."