Editorial 1: The messaging from putting the IWT in ‘abeyance’
Context
Using water resources as a strategic tool may offer short-term advantages, but it could eventually harm India in the long term.
Introduction
On April 24, India declared that it would place the Indus Waters Treaty (IWT) of 1960 in abeyance until Pakistan halts its support for cross-border terrorism. The term "abeyance," as used by the Government of India, implies a temporary suspension, leaving room for reinstatement if Pakistan takes credible steps to address terrorism, especially after the Pahalgam terror attack on April 22.
The meaning of ‘abeyance’
- No Legal Recognition: The term "abeyance" is not legally recognized under the Indus Waters Treaty (IWT) or the Vienna Convention on the Law of Treaties (VCLT), 1969.
- India's VCLT Status: India is not a party to the VCLT; Pakistan has signed but not ratified it.
- Customary International Law: Unilateral suspension of treaty obligations, like "abeyance," is not legitimate under international law, which prioritizes water cooperation.
- Article XII(3) & (4): These require mutual ratification for any treaty modifications or termination, a process unlikely with the current India-Pakistan relations.
- Unilateral Suspension: The IWT’s provisions do not support unilateral suspension of obligations.
VCLT Provisions on Suspension
- Exceptional Circumstances: Articles 60, 61, and 62 of the VCLT allow treaty suspension only for breaches, impossibility of performance, or fundamental changes in circumstances.
- India’s Stance: India has not formally invoked these exceptions, suggesting the "abeyance" is a political move rather than a legal action.
- Operational Suspension: India can temporarily refuse to share water-related data and halt cooperation on joint mechanisms, potentially affecting Pakistan’s water security and planning.
- Possible Water Impacts: India could flush silt from reservoirs without warning, jeopardizing Pakistan's water interests.
Previous Legal Actions
- January 25, 2023 Notice: India issued a notice to Pakistan for a material breach of the IWT after Pakistan approached the Permanent Court of Arbitration unilaterally.
- Current Use of "Abeyance": India has invoked the term as a counter-terrorism deterrent, raising questions about the treaty’s legal framework in this context.
- Material Breach: Does Pakistan’s support for cross-border terrorism qualify as a material breach under Article 60 of the VCLT?
- Fundamental Change: Could the ongoing national security threat from terrorism fulfill the conditions for suspension under Article 62?
- Untested Legal Interpretations: There are no clear legal links between terrorism and treaty obligations, which risks escalating the already tense India-Pakistan relations.
Abeyance as a two-level game
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Key aspect
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Explanation
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Strategic and Tactical Reasons
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India's Cabinet Committee on Security likely chose abeyance to address public sentiment quickly, providing comfort to grieving families. The limited time for full legal and diplomatic evaluation might have influenced this decision.
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Relieving Legal Objections
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Abeyance could be a strategic move to ease the legal challenges faced by India regarding run-of-the-river projects on western rivers, allowing India to consolidate its rights over water use.
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Risk of Escalation
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While beneficial for India, this strategy risks escalating tensions, as Pakistan sees such actions as an ‘act of war’ and a direct threat to its water security.
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Pakistan's Instability
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Pakistan's political and economic instability, worsened by youth dissatisfaction and internal issues, complicates India's strategy. This uncertainty makes relations with Pakistan more challenging.
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Effectiveness of Abeyance
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Abeyance may not exert meaningful pressure on Pakistan, as the country, seen as a failing state, is unlikely to comply with India's demands.
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Domestic Goals
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By invoking abeyance, India may gain time to push for water infrastructure projects (e.g., Kishenganga, Baglihar, and Ratle), which were delayed due to Pakistan's legal interventions.
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Uncertain Projects
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Some projects, like Tulbul-Navigation and Ratle, remain uncertain, highlighting challenges in project feasibility, including issues with environmental clearances.
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Two-Level Game
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India and Pakistan must manage domestic expectations and engage diplomatically to safeguard their interests. Abeyance serves dual purposes: domestic (firm stance against terrorism) and international(signals frustration over Pakistan's terrorism support).
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Ramifications for India
- Emotional Resonance: In India, the decision has resonated emotionally with the public and received widespread political support, but it risks overshadowing the deeper implications of the strategy.
- International Implications: Unilaterally violating the Indus Waters Treaty (IWT) may lead to India facing the Permanent Court of Arbitration or the International Court of Justice, potentially damaging its credibility as a responsible international actor.
- National Security vs. Ecological Prudence: The decision raises questions about balancing national securitywith ecological concerns, as rushing to fast-track water infrastructure projects might bypass necessary public and environmental scrutiny.
- Environmental Risks: Fast-tracking these projects could have severe consequences for the Indus basin, which is rich in biodiversity and seismically sensitive.
- Short-Term Leverage, Long-Term Risks: While using water resources as a strategic tool may provide short-term leverage, it could inadvertently harm India by undermining democratic governance and constitutional integrity.
- Public Sentiment for Stronger Action: The public demands a stronger stance against Pakistan, with some advocating for escalated military actions similar to the 2016 and 2019 surgical strikes, though such actions may not address the root cause of cross-border terrorism.
- Navigating the Path Forward: The challenge for New Delhi is to navigate a path that balances national sentiment with long-term stability and security.
- Crafting a Legal and Geopolitical Strategy: New Delhi must carefully shape its narrative and actions regarding the IWT abeyance, ensuring alignment with broader geopolitical goals and maintaining a sound legal basiswithin the IWT framework.
Conclusion
Actions should be carefully thought out, aiming to push Pakistan to rethink its support for cross-border terrorism, without damaging India’s environment or society. The focus should be on strengthening India’s reputation as a responsible global leader, by promoting its democratic values and environmental care. This approach will maintain India’s global standing and ensure its actions don’t unintentionally harm the region it aims to protect.