India pauses Indus Waters Treaty: What next for Pakistan?

From creating storage on the western rivers - Indus, Jhelum, and Chenab - to stopping the sharing of water flow data, the implications could be disastrous for Pakistan, which is heavily dependent on the Indus River System. Under such circumstances, what options do Pakistan really have? Find out

In Short

• Treaty held since 1960, now on hold for first time
• Options for India include creating river storage, data withholding
• Pakistan may use World Bank's resolution mechanism to address issues

India's decision to pause the Indus Waters Treaty (IWT), which has stood strong since 1960, is both unprecedented and bold. In response to the Pahalgam attacks that claimed the lives of 26 tourists, India, in a first, has halted the Indus Waters Treaty (IWT) of 1960.

“The Indus Waters Treaty of 1960 will be held in abeyance with immediate effect, until Pakistan credibly and irrevocably abjures its support for cross-border terrorism,” Foreign Secretary Vikram Misri stated on Wednesday evening.

Even after the attacks in Pulwama in 2019 and Uri in 2016, New Delhi's demands to stop the flow of India’s share of water to Pakistan did not materialise.

After the Uri attacks that killed 18 soldiers, Prime Minister Narendra Modi said at the Indus Water Treaty meeting that "blood and water can't flow together at the same time."

With India now putting the treaty on hold, New Delhi is left with several options. From creating storage on the western rivers - Indus, Jhelum, and Chenab - to stopping the sharing of water flow data, the implications could be disastrous for Pakistan, which is heavily dependent on the Indus River System.

Under such circumstances, what options does Pakistan really have?

WHAT OPTIONS DOES PAKISTAN HAVE?

While the World Bank-brokered treaty does not mention that the UN's judicial arm, the International Court of Justice (ICJ), can intervene, it does establish a three-tiered resolution mechanism.

According to the three-pronged mechanism, the Permanent Indus Commission (PIC), comprising commissioners from both countries, is the initial point for resolving disputes arising out of water sharing between the two nations.

However, if the issue fails to be resolved by the PIC, it is then referred to a World Bank-appointed neutral expert, as was the case in the recent disputes between India and Pakistan over the Kishenganga and Ratle hydroelectric projects.

In that instance, the neutral expert supported New Delhi’s position - a welcome decision for India.

According to India's Ministry of External Affairs (MEA), "The decision of the Neutral Expert on all matters within his competence shall be final and binding."

Finally, the matter can be taken to the Permanent Court of Arbitration (PCA) in The Hague under the provisions of Article IX. In the latest dispute over the Kishenganga and Ratle hydroelectric projects, Pakistan wanted to approach the PCA instead of a neutral expert.

"Unless otherwise agreed, between the Parties, a Court of Arbitration shall consist of seven arbitrators appointed," states MEA.

CAN INDIA WALK OUT OF INDUS TREATY?

According to the wording of the IWT - signed between then-Indian Prime Minister Jawaharlal Nehru and his Pakistani counterpart, General Ayub Khan - neither India nor Pakistan can unilaterally cancel the treaty, nor can either country abandon the pact.

"The provisions of this Treaty, or the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments," says Article XII of the IWT.

Under a circumstance where India wants to abrogate the treaty, the 1969 Vienna convention on the law of treaties, which regulates the formation, regulation and termination of treaties between two sovereign states, comes into play.

India is not a signatory to the Vienna Convention on the Law of Treaties. However, India takes guidance from relevant sections even though it is not party to the 1969 Convention.

As per the wording of the IWT, neither party can unilaterally exit the treaty nor can it stop the flow of water entirely. However, India can reduce the flow of water through provisions under Article 3 of the IWT.

Although this move to stop the Treaty could set a concerning precedent if adopted by other upstream neighbouring countries, it is seen as a necessary retaliation against the recurring attacks on Indian soil.

With innocent blood spilt, the question remains: should India retaliate or first deliberate on the consequences? Only time will tell.