The Indus Waters Treaty was signed in 1960 after nine years of negotiations between India and Pakistan with the help of the World Bank, which is also a signatory. The negotiations were the initiative of former World Bank President Eugene Black.
But Indian PM Modi during his October 2019 election rally in Haryana first time hinted for possible unilateral decision for rescinding Indus Water Treaty. Former Union Minister Nitin Gadhari had also threatened to choke rivers’ flow to Pakistan. Indus Water Treaty is protected
India has no legal competence under the treaty to revoke it on its own. Article 12(4) of treaty entitles the termination of the treaty only if both India and Pakistan agree in writing. It is of an indefinite duration and was never intended to be time-specific or event-specific nor it depends upon the whims and wishes of India, hence it will not expire with regime change. Indus Water Treaty is protected
Any revocation efforts will tantamount to ‘withdrawal’ suspension, annulment’ etc on part of India will be the ‘breach’ of Treaty. Treaty has no provision about its duration or suspension and there is no avenue that Pakistan can approach for “revival” of the treaty if revoked by India.
In other words, Pakistan will not be left with any peaceful mechanism for seeking performance of the treaty by India. In case India tries to interrupt water flow into Pakistan as an upper riparian, it is setting up a regional state practice which under international law can serve as precedence and will clear mist for China, with an argument to consider suspension of the waters of Brahmaputra River.
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 reasons to consider revocation of the treaty.
Revocation of treaty will be a ‘hostile’ act against Pakistan. And can be viewed by Pakistan as Existential threat keeping the country at the mercy of India. The treaty was not suspended even during wars between the two countries.
Any misadventure from the Indian side revoking the Treaty might result into humanitarian crises affecting Pakistan populace in particular and Indians in general if things get out of the spiral. Even if there been on Indus Water Treaty, an upper riparian, under the International Water Law, has no right to stop the water flow to a lower riparian.
The customary international law, declaration of Declaration of Montevideo (1933), Helsinki rules (1966) and UN Convention say: The shared waters could neither be stopped nor diverted without the consent of the other riparian state. Similarly, Madrid Declaration (1911) says: “The regime of rivers and lakes, contiguous or successive, could not be altered by one state to the detriment of a co-riparian without the consents of the other.
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