Rakhshanda Mehtab
The Permanent Court of Arbitration has rejected the legal foundation of India’s unilateral decision to place the Indus Waters Treaty in “abeyance”, confirming that the Treaty remains in force and that India continues to be bound by it. The ruling is significant because it answers a question that India appears to have tried to avoid: can a state simply declare a binding international treaty suspended because political, security or strategic circumstances have changed? The answer, in this case, is no.
India’s use of the word “abeyance” was itself revealing. Where does the Indus Waters Treaty provide such a power? It does not. The Treaty contains mechanisms for its implementation, dispute settlement and modification, but it does not give either country a unilateral right to create a new status in which its obligations conveniently disappear. International law cannot function if states are free to invent legal terminology whenever existing treaty obligations become inconvenient. Sovereignty gives a state authority over its affairs; it does not give that state a licence to disregard commitments it has voluntarily undertaken. The principle of pacta sunt servanda is basic for precisely this reason: agreements must be honoured.
India also argued that Pakistan had refused to negotiate changes to the Treaty. Yet the Court found that Pakistan had been willing to discuss modifications. That raises a difficult question for India: if Pakistan was prepared to discuss changes through negotiation, why was unilateral suspension necessary? If a treaty needs updating, negotiate it. If a provision is disputed, use the agreed mechanism. But if the other party has not agreed to terminate or suspend the treaty, what legal authority allows one side to declare that it no longer applies?
The same contradiction appears in India’s objection to Pakistan’s use of the Treaty’s dispute-settlement procedures. Pakistan used a mechanism expressly contained in the agreement between the two countries. How can exercising a right created by a treaty be described as violating that treaty? A dispute-settlement mechanism has no purpose if one party can later argue that the very act of invoking it somehow destroys the legitimacy of the process.
India also invoked terrorism and national security. Those concerns are serious, but seriousness does not automatically create a legal exception. The Court found that the Indus Waters Treaty does not regulate terrorism or the use of force and that such allegations could not provide a legal basis for suspending or terminating the Treaty. The distinction matters. A state can respond to terrorism through security, diplomatic and legal measures, but that does not mean every existing international obligation can be placed on hold whenever terrorism is invoked.
India’s position becomes even harder to reconcile when its conduct regarding the Western Rivers is considered. While arguing that Pakistan had obstructed India’s treaty rights, India continued exercising those rights and pursuing hydroelectric projects, with Kishenganga operational and Ratle under construction. If the Treaty was genuinely incapable of functioning, why continue benefiting from the rights it provides? A state cannot reasonably argue that a treaty is invalid when its obligations are inconvenient while simultaneously relying on the rights granted by that same treaty.
India further relied on population growth, energy requirements, technological developments, climate change and changing security conditions to argue that there had been a fundamental change of circumstances. But international law does not turn every major development into an escape clause. The Court found that the demanding legal threshold had not been satisfied because these changes did not radically transform the obligations created by the Treaty. In other words, changing circumstances do not automatically erase binding commitments.
The argument that armed conflict justified suspension also failed. The Treaty survived previous wars between India and Pakistan, and the Court found no basis for treating the present circumstances as an international armed conflict that would automatically suspend its operation. India’s countermeasure argument likewise failed because the necessary legal conditions were not established.
The Treaty itself provides the clearest answer: it remains in force unless India and Pakistan jointly modify or terminate it through a further treaty. India is entitled to seek renegotiation. It is entitled to raise security concerns. It is entitled to challenge particular projects through the mechanisms available under the Treaty. What it is not entitled to do, according to the Court’s ruling, is unilaterally switch off the entire agreement.
The Ratle proceedings further demonstrate the Court’s approach. The Court’s treatment of Pakistan’s interim-measures request also demonstrates the seriousness with which it assessed the case: three of the five measures sought by Pakistan were granted, while the Court independently assessed the remaining requests rather than treating the proceedings as a predetermined outcome.
