Over the past couple of weeks, we have been constantly hearing
the Indian bluster about unilaterally withdrawing from the Indus
Waters Treaty. Pakistan's categorical response has been that
India cannot unilaterally withdraw from it. Can India counteract
Pakistan's claim and assert that it has the right to
unilaterally withdraw from this treaty? If so, what rights and
remedies does Pakistan have in case of a unilateral Indian
Based on a review of the treaty, it is clear that there is no
express term in it regarding a unilateral withdrawal. The clause
regarding termination of the treaty provides that it can only be
terminated by mutual agreement of both parties on the basis of a
mutually agreed upon and duly ratified treaty. But does the absence
of an express provision on unilateral withdrawal affirmatively
establish that neither party can withdraw from the treaty or is
there an implied right to unilaterally withdraw under certain
circumstances or on certain grounds?
There is no specific or binding set of international laws that
would govern this treaty partly because of the persuasive nature of
international law itself and partly because both Pakistan and India
may not be signatories to the relevant international convention.
One such convention is the Vienna Convention on the Law of Treaties
1969 , which is instructive in this regard. It provides two grounds
for termination in case unilateral withdrawal has not been
expressly provided in the treaty. One is establishing that the
parties had admitted the possibility of a unilateral withdrawal and
termination. This is not applicable to the Indus Waters Treaty as
the only provision in the treaty regarding termination does not
specify the duration of the treaty and requires a duly ratified
mutual agreement of both parties for termination. There is also no
reference to any specific grounds for termination such as a change
in the facts and circumstances surrounding the subject matter of
the treaty. Therefore, it can be definitively concluded that the
treaty was entered into for an indefinite time period.
The second ground for unilateral withdrawal relates to the
nature of the treaty itself. According to one view, there is a
presumption against unilateral withdrawal from treaties that
establish an international regime for a particular area, river or
waterway. The presumption, therefore, is that such treaties
continue to be in force for an indefinite time period. According to
the other view, this is a rebuttable presumption and parties are
free to withdraw even from treaties of this nature. In light of the
conflicting views and the absence of authoritative law on this
issue, India could build and substantiate its case for unilateral
withdrawal on the basis of the latter view. If it does so, what
legal implications/consequences would it entail? Is there any
deterrent that would give India pause and make it rethink its
decision? Would a unilateral withdrawal constitute a breach of the
treaty making India liable to pay any penalties/damages to
Pakistan? Would Pakistan be entitled to any other remedies or legal
In case of India's unilateral withdrawal, according to one
view, the treaty would cease to exist and consequently neither
Pakistan nor India would have any rights and obligations in
connection with the treaty. Based on this view, India's
unilateral withdrawal would neither constitute a breach of the
treaty nor would Pakistan be entitled to seek legal recourse
through the prescribed dispute resolution methods in the treaty.
Nonetheless, outside the four corners of the treaty, Pakistan would
still have the right to submit the matter to the International
Court of Justice's (ICJ) compulsory jurisdiction. The ICJ takes
compulsory jurisdiction in matters involving interpretation of a
treaty. Furthermore, under ICJ's compulsory jurisdiction,
Pakistan can initiate these proceedings on its own as there is no
requirement of a special agreement between parties to the treaty to
submit the matter to the ICJ.
Therefore, Pakistan can effectively use its legal armoury to
counteract the Indian blustering and make a compelling case against
India's right to unilaterally withdraw on the basis of the
express terms of the treaty itself. If India persists and
unilaterally withdraws from the treaty, Pakistan can exercise its
right to initiate proceedings at the International Court of
India will not be able to conveniently walk away from this
treaty as in addition to the potential economic fallout and its
diplomatic compulsions, the legal ramifications serve as a powerful
deterrent to India's unilateral withdrawal.
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