By Lakmali Bhagya Manamperi
On April 22, a deadly terrorist attack in the Baisaran Valley near Pahalgam, located in Indian-administered Jammu & Kashmir, resulted in the deaths of 26 individuals, the majority of whom were Indian tourists.
This marked the deadliest incident in the contested territory since the 2019 Pulwama bombing, where a suicide attack on a convoy of Indian paramilitary forces claimed 40 lives. Even more concerning, it stands as the most severe attack on civilians in more than twenty years.
The Resistance Front (TRF), believed to be a front group for the Pakistan-based militant organization Lashkar-e-Taiba, took responsibility for the attack, while the government in Pakistan has denied any involvement.
The Kashmir conflict is a territorial conflict over the Kashmir region, primarily between India and Pakistan, and also between China and India in the northeastern portion of the region. The conflict between India and Pakistan arose out of the 1947 Partition of British India, enshrined in the Indian Independence Act.
The Partition created Pakistan with a Muslim majority and India with a Hindu majority, allowing regions like Jammu and Kashmir to decide which country to join. Initially, the ruler of Kashmir, a Hindu monarch with a Muslim-majority population sought to remain an independent state.
However, facing an invasion by Pakistani tribesmen, he chose to accede to India in return for military support, leading to the first Indo-Pakistani war in 1947-48. The conflict was halted in 1949 by the Karachi Agreement, which introduced a UN-monitored ceasefire line in the region.
Since then, numerous clashes have broken out in the region, with both India and Pakistan continuing to claim Kashmir in its entirety while controlling only portions of it. The recent incident has further escalated diplomatic tensions between New Delhi and Islamabad. In a series of tit-for-tat actions last week, India suspended a key water-sharing treaty and accused Pakistan of facilitating cross-border terrorism.
The Indus Waters Treaty
The Indus Waters Treaty (IWT), which marked its 60th anniversary on September 19, 2020, has been suspended by India for the first time since its inception. The treaty, signed in 1960 by then Indian Prime Minister Jawaharlal Nehru and Pakistani President Ayub Khan, was facilitated by the World Bank – then known as the International Bank for Reconstruction and Development, following nine years of negotiations.
The Indus River, which originates in Tibet and flows through India, Pakistan, China, and Afghanistan, has been a longstanding source of regional tension since the partition of British India in 1947. Notably, in 1948, India halted water flow to Pakistan, later restoring it after a ceasefire.
In response, Pakistan brought the issue before the United Nations in 1951, alleging that India had disrupted water supplies to several of its villages. Acting on the UN’s recommendations, the World Bank proposed a framework in 1954, which culminated in the formal signing of the IWT in 1960.
The treaty sets forth a comprehensive framework for the equitable allocation of the waters of the Indus River system. Under its terms, India was accorded the rights to the eastern rivers—Ravi, Beas, and Sutlej with provisions for their unrestricted utilization, subject to exceptions arising under extraordinary circumstances. In parallel, Pakistan was granted rights over the western rivers – Indus, Jhelum, and Chenab.
To oversee the implementation of the treaty and address any potential disputes, a Permanent Indus Commission was established under the auspices of the United Nations, supported by an arbitration mechanism to promote amicable resolution of differences. The treaty further allocates approximately 20% of the total water from the Indus River system to India, with the remaining 80% allocated to Pakistan.
It also safeguards the principle of the free use of natural river channels for the discharge of floodwater and excess flows, ensuring that neither party may hold the other responsible for damage resulting from such use.
Nonetheless, given its downstream position, Pakistan has expressed concerns that India’s upstream activities could, whether inadvertently or during periods of heightened tension, impact the flow of water, potentially leading to floods or droughts and thereby infringing upon the population’s right to water.
The newly emerged human right to water depends on the volume and the quality of the shared water resources. Consequently, a State has the capacity to hamper the realization of this right of the other co-riparian states providing an extra-territorial reach of State’s human rights duties.
The Right to Water in the Crosscurrents of Shared Waterways
The right to water is not a given explicit expression in most core international human rights instruments, but it is widely acknowledged as a derivative right, essential for the realization of many other rights as stated by Justice C. G. Weeramantry, in his separate opinion in the Gabčíkovo–Nagymaros Project (Hungary v. Slovakia) case. It is emphasized that environmental harm can severely compromise and undermine the full enjoyment of all human rights.
The political and ecological implications of transboundary water management are particularly evident in South Asia. In the recent past, India’s development of upstream hydropower projects, such as Kishanganga and Baglihar, has raised alarms in Pakistan, which depends on the Indus River system for approximately 80% of its irrigated agriculture.
Although India maintains that these are “run-of-the-river” projects which intends to divert rather than block water flows, Pakistan has persistently expressed concern over potential design manipulations aimed at controlling water volume. Meanwhile, India has responded that any design modifications are intended solely to ensure the viability of the projects, not to weaponize water.
These dynamics highlight a broader reality that the enjoyment of the human right to water is often subject to the actions and inactions of other States. In certain countries, this dependency is extreme. Egypt, for example, relies on the Nile River, which flows through nine other nations before reaching its territory.
Similarly, over 94% of Botswana’s surface water originates beyond its borders. Globally, around 33 countries depend on transboundary sources for more than 95% of their freshwater supply. Such external reliance renders the protection of the right to water vulnerable to decisions, actions, and omissions of the other nation states.
Henceforth, though it is the respective nations state that is vested with the ‘duty to respect right to water’ of its people and maintain the ecological balance of the territory while negotiating, consulting and cooperating to preserve the community interests and solve issues on international rivers and shared natural resources; these obligations are challenging to implement in transboundary contexts.
Hence, international law speaks very less about the assurance for the rights that has is compromised due to water scarcity or pollution caused by the actions or inactions of a neighboring riparian State. The human right to water can be infringed upon even when the violating State does not exercise control over the territory or the individual affected. A State can breach this right in another country simply by misusing its own territory.
As highlighted in the Trail Smelter (US v. Canada) decision, a State may violate international obligations if it uses or allows the use of its territory in ways that cause harm to another State or its inhabitants.
For example, if a State reduces the flow or deteriorates the quality of a shared river within its own territory, upstream overuse for agriculture, industry, or domestic needs, coupled with preventable pollution, can severely impact downstream water quality and quantity and hence can violate the human right to water of a neighboring riparian State without having to physically enter or control that State’s land. States have limited control over how neighboring co-riparian nations manage shared rivers.
This limits a state’s ability to ‘protect’ the human right to water within its own borders. Consequently, efforts to ‘fulfil’ this right can be obstructed if the upstream State increases its use of the shared water, thereby reducing the flow available downstream.
This reveals a critical dilemma: the mismatch between individuals’ right to water and the practical capacity of States to guarantee those rights. The resulting dependency creates a scenario where one State’s human rights obligations are directly influenced by the governance of another, making the right to water a shared responsibility with profound transboundary human rights implications.
As Justice Oliver Wendell Holmes aptly observed in New Jersey v. New York, “a river is more than an amenity; it is a treasure. It offers a necessity of life that must be rationed among those who have power over it.” He further emphasized that while an upper riparian state may possess the physical capacity to control water flow within its jurisdiction, such unilateral actions, particularly those detrimental to downstream interests, are impermissible within a framework of equitable and cooperative federalism.
This perspective underscores the principle that disputes over water must be resolved not through coercion or strict legalism, but through a commitment to fairness and mutual accommodation—an ethos that remains profoundly relevant in contemporary water-sharing agreements such as the Indus Waters Treaty.
Therefore, in the current context, Pakistan which is at the receiving end has legitimate concerns about the potential abrogation of the Indus Waters Treaty, as it could significantly undermine the state’s ability to fulfil its obligations arising from the recognition of the human right to water.
The Suspension of the Indus Waters Treaty: A Potential Act of War under International Law?
For more than sixty years, the Indus Waters Treaty (IWT) has served as a cornerstone of water diplomacy between India and Pakistan—two nuclear-armed states with a long history of geopolitical rivalry.
Despite enduring multiple wars, political upheavals, and diplomatic crises, the treaty has remained a rare triumph of diplomacy in a region often marked by volatility and deep-rooted mistrust. As a legally binding international agreement, the IWT does not permit unilateral suspension by either party.
Tensions escalated in 2016 when, following a militant attack on Indian soldiers an incident India attributed to Pakistan, India issued the provocative statement that “blood and water cannot flow together.” This was widely interpreted as a veiled threat to use control over the Indus waters as a tool of retaliation.
More recently, in response to renewed threats, the office of Pakistan’s Prime Minister Shehbaz Sharif issued a statement declaring that any attempt by India to suspend or withdraw from the treaty would be regarded as an act of war, warranting a full-scale response. The statement underscored Pakistan’s rights as the lower riparian state and its dependence on uninterrupted access to shared water resources.
From a legal and ethical perspective, the question arises whether Pakistan could invoke the suspension of the IWT as a justification for the use of force under international law. Arguably, such an act could amount to a breach of India’s extraterritorial obligation to respect the human right to water of the Pakistani population.
Within the framework of jus ad bellum—the body of law governing the right to resort to war, Pakistan might seek to justify defensive action if it perceives an existential threat to its population’s fundamental rights. However, such a claim would have to satisfy the stringent criteria established under just war theory: a just cause, legitimate authority, right intention, proportionality, last resort, and a reasonable chance of success. Whether such a justification would hold under international scrutiny remains a matter of legal debate and diplomatic caution.
Conclusion
Water has been a tool of conflict from a very ancient period of time. From the Buddha’s intervention in the Sakya and Koliya inter-clan water dispute to modern transboundary water governance mechanisms, the centrality of water in peace and conflict dynamics remains unchanged.
In the contemporary context, access to water is not only a matter of environmental or resource management but one grounded in international human rights law. The recognition of access to safe and sufficient water as a basic human right imposes obligations on states, including in their extraterritorial conduct.
The Indus Waters Treaty, for decades, has served as a cornerstone of hydro diplomacy between India and Pakistan the two nuclear-armed states with a long history of political rivalry. Despite numerous conflicts, it has remarkably endured, embodying the potential for cooperation even in hostile contexts. However, recent politics of land seem to soon spill over into the politics of rivers turning water into a weapon, posing grave risks to regional stability.
In this light, the weakening of legal commitments under the treaty, or its suspension, could amount to not only a breach of international obligations but a provocation capable of escalating into armed conflict. It is imperative, therefore, that the sanctity of water-sharing agreements be preserved, not only as legal instruments but as ethical commitment that protect civilian populations and uphold shared humanity. The future of peace in South Asia may well depend on how states manage their rivers as instruments of conflict or as bridges of cooperation.
Lakmali Bhagya Manamperi is an Attorney-at-Law and a Lecturer in law at the Asia Pacific Institute of Information Technology (APIIT) in Sri Lanka. She can be reached at lakmali.manamperi3@gmail.com.
Factum is an Asia-Pacific focused think tank on International Relations, Tech Cooperation, and strategic Communications accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.
