Indus waters treaty and beyond: a study of Pakistan's transboundary water rights under customary international law

Abstract

Pakistan and India share the Indus basin as co-riparian states. The Indus Waters Treaty, concluded over fifty years ago, does not incorporate certain challenges faced by Pakistan today. The customary international law, on the other hand, has developed principles that govern the Indus basin in light of contemporary challenges. This research project discusses the Indus Waters Treaty, the subjects that are beyond its scope, and the possibility of interpretation of the treaty in light of customary international law. After analysing the extent to which the Indus Waters Treaty can be interpreted to incorporate the principles that emerged after its conclusion, the next subject of discussion is the rights of Pakistan with, or without, the Indus Waters Treaty under customary international law. While studying customary international law, the state practice of India is evaluated to establish reciprocity between India’s state practice and principles of customary international law. It is established that Pakistan can rely, for its claims against India, on certain principles, which are now part of customary international law. These include the equitable and reasonable utilization rule, the prevention of significant harm rule, the rules pertaining to exchange of data, notification and consultation, and the principle that India and Pakistan must cooperate vis a vis the Indus basin in a peaceful manner. Finally, recommendations are made to Pakistan for its future course of action.