India-Pakistan Tensions Escalate: Can the Indus Waters Treaty Survive Modi’s Aggression?

Ever since the 2014 election of Narendra Modi as Prime Minister of India, tensions have risen between the two countries. Despite wars, military buildup, and unease, the Indus Waters Treaty (IWT) has been upheld. However, Modi’s belligerent attitude on 27 September 2016, when he controversially stated that “Blood and water cannot flow together,” signaled his intent for something sinister.

India then sent a notice to Pakistan proposing modifications to the IWT and giving 90 days for a response. Article 12(3) of the treaty allows for modifications, while Article 12(4) allows for termination, but both parties must agree to a separate “stand-alone treaty”. There is no provision for “unilateral modification” of the IWT, and it has an indefinite life unless both countries choose to terminate or amend it.

After the existing ‘dispute resolution mechanism’ could not address Pakistan’s observations with regard to India’s dams’ (Kashanganga on the Jhelum River and Ratle on the Chenab River) designs Pakistan approached WB from there matter has been referred to ‘Arbitration Court’. Taking the impasse to WB appointed Arbitration Court is not a breach of IWT. Apparently, India is likely to lose the case there. Pakistan has a strong argument that is entitled to take its grievances under the treaty to the relevant forum. It is not a material breach of IWT.

Both countries invoked two simultaneous forums for dispute resolution, instead of a ‘graded process’ on the ‘same question’. India thinks this could lead to a potentially contradictory outcome; therefore, it constitutes a material breach and hence there is a need to ‘modify’ the treaty. But again the institution which brokered IWT has referred the matter to Arbitration Court. Hence India’s observations are legally invalid. There is a sinister move on part of India as it is trying to find lame excuses to unilaterally withdraw from IWT. In a high-level meeting reportedly held on Sept 27, 2016, in New Delhi Modi established an inter-ministerial task force to look into the treaty with a “sense of urgency”. Such issues cannot be resolved under any bilateral mechanism. India has the worst record of throwing the issues into the ‘bin’ under the pretext of a bilateral approach. Divesting Kashmir of its ‘special status’ first through a presidential order followed by a vote in parliament is an example of a disputed subject matter UN resolution that has been complicated through a unilateral decision. Unilateral withdrawal will be interpreted as a ‘breach of Treaty’ and that is criminal.

Pakistan would take the ‘Breach of Treaty’ as a crime. Disturbing the flow of rivers in violation of IWT will be taken as a ‘War’ against a sovereign country whose lifeline is choked. This time War will be horrible for the entire region as both countries are equipped with nuclear weapons. Breach of IWT will also be a violation of ‘The Vienna Convention’ on the Law of Treaties (1969) that binds states to follow the procedure agreed upon by them for withdrawal or termination. In this regard State’s proactive of complying with the Treaties is heavily weighed against withdrawals around the world.