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 withdrawal?
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...