Asif Mahmood
Article 26 of the Vienna Convention on the Law of Treaties (1969) unambiguously affirms the principle of pacta sunt servanda, stipulating that treaties in force must be performed in good faith and cannot be unilaterally suspended. In light of this provision, it is legally untenable for India to unilaterally obstruct or suspend the flow of water to Pakistan, irrespective of the status of any bilateral agreement.
Even if one were to hypothetically assume the non-existence of the Indus Waters Treaty (IWT), the conclusion that India would thereby acquire absolute proprietary rights over transboundary waters flowing into Pakistan is fundamentally flawed. Under customary international law, states do not possess unilateral ownership over shared watercourses. Instead, such resources are subject to the principle of equitable and reasonable utilization, a cornerstone of international water law that governs transboundary water-sharing arrangements.
While the IWT remains a vital bilateral framework for managing the distribution and utilization of the Indus basin’s waters, it does not represent the sole legal foundation for water governance between India and Pakistan. The overarching legal landscape includes a corpus of international treaties, conventions, and customary principles that regulate the rights and obligations of riparian states.
Geographical advantage as an upper riparian state does not confer India with absolute authority over water resources. International legal instruments—including the UN Convention on the Law of the Non-Navigational Uses of International Watercourses (1997), the UNECE Water Convention, the Helsinki Rules, the Stockholm Declaration (1972), Agenda 21, and the Mar del Plata Action Plan (1977)—affirm that transboundary waters are shared resources. These instruments, many of which articulate principles of customary international law, emphasize cooperation, no significant harm, equitable use, and the obligation to notify and consult affected states.
Resolution A/RES/64/292, adopted by the United Nations General Assembly on 28 July 2010, formally recognizes access to clean water and sanitation as an essential human right. This principle, now widely accepted in international legal discourse, underscores that access to water is not merely a matter of bilateral convenience but a universal entitlement grounded in human dignity.
Furthermore, the UN Watercourses Convention stresses that upstream states such as India are not entitled to claim exclusive ownership over water flowing through their territories. Rather, these resources are considered part of a common heritage to be used equitably and sustainably, respecting the rights of downstream states like Pakistan. Article 10 of the Convention places priority on water for vital human needs, such as drinking and sanitation, above other uses like agriculture or hydropower.
The Mar del Plata Action Plan reinforces this notion, recognizing access to sufficient and safe drinking water as a fundamental human right. This is particularly relevant in the case of Pakistan, a predominantly agrarian society whose socio-economic stability is heavily dependent on consistent and equitable access to water resources.
Depriving Pakistan of its rightful share of water resources constitutes not only a violation of bilateral and international legal obligations but also poses a severe humanitarian and developmental threat. Such actions could potentially be interpreted as a breach of international human rights law and, in extreme circumstances, as an act of aggression or even a war crime.
The obligations enshrined in the UN Charter (Article 55) and the Universal Declaration of Human Rights (Article 25) further bind all member states to promote higher standards of living, social progress, and the well-being of their populations. It is difficult to conceive of the realization of these objectives in the absence of access to clean and sufficient water.
In sum, access to water transcends the bounds of national sovereignty and bilateral treaties. It is a non-derogable human right. Any deliberate obstruction that deprives populations of this essential resource must be viewed not only as a legal violation but as a profound moral and humanitarian failure.