Why in the News?

After the Pahalgam terror attack, India responded by putting the 1960 Indus Waters Treaty (IWT) on hold and announced several other diplomatic steps. In return, Pakistan said it would also consider suspending all bilateral agreements with India, including the Simla Agreement.

What are the key reasons cited by India for holding the Indus Waters Treaty (IWT) “in abeyance”?

• Fundamental Change in Circumstances: India argues that since the treaty’s signing in 1960, there has been a drastic shift in population demographics and developmental needs, especially the urgent requirement for clean energy. Eg: India’s push for hydropower projects on western rivers like Kishanganga and Ratle reflects its clean energy goals.
• Violation of Good Faith Principle: India claims that Pakistan has not acted in good faith, as evidenced by its continuous sponsorship of cross-border terrorism, which undermines mutual trust required under international treaties. Eg: The recent Pahalgam terror attack is cited as part of a pattern of hostile actions.
• Obstruction in Treaty Implementation: India points to Pakistan’s resistance and obstructionist approach in dispute resolution and infrastructure development under the treaty framework. Eg: In 2016, Pakistan bypassed the Neutral Expert process and approached the Permanent Court of Arbitration directly, delaying dam projects.

Why is the term “hold in abeyance” not considered valid under international law, especially in the context of the Vienna Convention on the Law of Treaties (VCLT)?

• “Abeyance” Not Recognised in VCLT Terminology: The VCLT only recognises terms like “termination” and “suspension” of treaties—not “abeyance.” Hence, “holding a treaty in abeyance” has no formal legal status or procedural clarity under international law. Eg: Article 62 of the VCLT provides for treaty termination due to fundamental change in circumstances, but does not mention or define “abeyance.”
• High Threshold for Fundamental Change: Even under Article 62, “fundamental change in circumstances” must directly relate to the core purpose of the treaty, and meet strict criteria set by international jurisprudence, particularly the ICJ. Eg: In the 1984 Nicaragua v. United States case, the ICJ rejected the US claim that a political shift in Nicaragua was a fundamental change justifying treaty exit.

How does the dispute resolution mechanism under the Indus Waters Treaty function? & What are its three tiers?

• Permanent Indus Commission (PIC) – First Tier: Both India and Pakistan appoint Commissioners who meet regularly to resolve technical and implementation issues bilaterally. This is the first step in resolving disputes. Eg: Disagreements over annual data sharing or small projects are often addressed at this level.
• Neutral Expert – Second Tier: If the issue remains unresolved, either country can request the World Bank to appoint a Neutral Expert for technical matters such as design parameters of projects. Eg: In 2005, a Neutral Expert was appointed to resolve the Baglihar Dam dispute between India and Pakistan.
• Permanent Court of Arbitration (PCA) – Third Tier: If the issue is legal or political, or if technical resolution fails, the matter can be escalated to the Permanent Court of Arbitration, facilitated by the World Bank. Eg: In 2016, Pakistan skipped the Neutral Expert stage and approached the PCA over the Kishanganga and Ratle projects, which India opposed.

When did Pakistan previously bypass the neutral expert stage under the IWT?

• Bypassing in 2016 Over Indian Hydropower Projects: In 2016, Pakistan directly approached the Permanent Court of Arbitration (PCA) over India’s construction of the Kishanganga and Ratle hydroelectric projects, skipping the Neutral Expert stage meant for resolving technical disputes. Eg: Pakistan alleged that India’s designs violated the IWT’s specifications regarding spillway structures and pondage levels.
• India’s Objection to Parallel Proceedings: India strongly opposed this move, stating that the IWT does not allow parallel proceedings at both the Neutral Expert and PCA stages for the same issue. India refused to participate in the PCA process and called for dispute resolution through the Neutral Expert instead. Eg: India maintained that allowing parallel processes undermines the treaty’s dispute resolution structure.

Which Simla Agreement clauses are “best endeavour clauses” and why are they non-binding?

• Nature of Language – Non-Mandatory Phrasing: Clauses in the Simla Agreement use soft language such as “shall prevent” or “pending final settlement” rather than definitive legal commands. This implies a diplomatic intention rather than enforceable obligations. Eg: “Pending the final settlement… both sides shall prevent… acts detrimental to peaceful relations” is advisory, not obligatory.
• Absence of Enforcement or Penalty Mechanism: The agreement does not specify consequences for violations, nor does it include a dispute resolution framework. This makes compliance a matter of political will rather than legal duty. Eg: Despite ceasefire violations and the 1999 Kargil conflict, no legal action could be taken under the Simla Agreement.
• Meant to Guide, Not Compel: These clauses are seen as guiding principles or diplomatic assurances, commonly called “best endeavour clauses” in international law, which reflect a commitment to try but not an obligation to achieve. Eg: The agreement promotes bilateralism, but repeated internationalization of Kashmir by Pakistan hasn’t attracted treaty penalties.

Way forward: 

• Treaty Modernisation Through Bilateral Dialogue: India and Pakistan should initiate structured negotiations to update the Indus Waters Treaty, aligning it with present-day challenges like climate change, clean energy needs, and population growth.
• Strengthen Dispute Resolution with Third-Party Mediation Rules: Introduce clear procedural timelines and limitations on bypassing dispute tiers (e.g., Neutral Expert stage) to ensure consistency, transparency, and mutual trust in treaty enforcement.

Mains PYQ:

[UPSC 2016] Present an account of the Indus Water Treaty and examine its ecological, economic and political implications in the context of changing bilateral relations.

Linkage: The Indus Water Treaty is very important in the current situation where it’s being “put on hold.” It directly relates to the changing relationship between India and Pakistan, which is the main reason behind this move.

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