What is the Law on Suspending a Treaty?

The recent terror attack in Pahalgam, where 26 tourists lost their lives, has worsened the already tense relationship between India and Pakistan. It has affected the diplomatic relations and agreements between the two countries.

In this Weekly, let us look at some of the agreements that stand between India andPakistan and the legal framework around such agreements.

What is a Treaty?

A treaty is a formal, legally binding written agreement between two or more sovereign states (countries) or international organizations. It’s a fundamental instrument of international law, similar to a contract between individuals or entities. Treaties establish the rights and obligations between the signatory states.

What is a Legal Convention?

According to Article 38(1) of the Statute of the International Court of Justice. a formal agreement between multiple states on a matter of general concern is a legal convention. Conventions are often multilateral, meaning they involve many countries. They aim to establish common principles or rules that the participating states will follow.

Binding Nature of Treaties and Convention

The fundamental principle of international law which governs the binding nature of the treaties and conventions is the Latin phrase “pacta sunt servanda“, which means “agreements must be kept.” This principle is a fundamental norm of international law, recognized in the Vienna Convention on the Law of Treaties (VCLT). Article 26 of the VCLT explicitly states: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Article 11 of the VCLT provides how a state can express its consent to be bound by a treaty. This consent can be given through various methods, including signature, exchange of instruments, ratification, acceptance, or approval, as well as any other means agreed upon by the parties.

Significant Bilateral Treaties and Agreements Between India and Pakistan

Indus Waters Treaty (1960): This treaty, brokered by the World Bank, governs the sharing of water from the Indus River system. India controls the eastern rivers (Ravi, Beas, Sutlej), while Pakistan controls the western rivers (Indus, Jhelum, Chenab). Despite wars and ongoing disputes, this treaty had remained largely intact until recently when India kept the treaty in abeyance after the Pahalgam attack.
Tashkent Declaration (1966): Signed after the 1965 Indo-Pakistani War, this declaration, mediated by the Soviet Union, aimed to restore peaceful relations. Both countries agreed to withdraw their armed forces to pre-war positions.
Simla Agreement (1972): This agreement was signed after the 1971 war, which led to the creation of Bangladesh. It aimed to normalize relations and established the Line of Control (LoC) in Kashmir. A key principle of the Simla Agreement is the commitment to resolve disputes bilaterally and peacefully, without third-party intervention. Pakistan has recently threatened to suspend this agreement.
Agreement on the Prohibition of Attack against Nuclear Installations and Facilities (1988): This agreement prevents both countries from attacking each other’s nuclear facilities. They also annually exchange lists of their nuclear installations.
Lahore Declaration (1999): Signed during a period of relative thaw, this declaration committed both nations to intensify their efforts to resolve all issues, including Jammu and Kashmir, and to take steps to avoid accidental or unauthorized use of nuclear weapons.
Nehru-Liaquat Agreement (1950): Addressed the security and rights of minorities in both countries after the Partition.
Bilateral Protocol on Visits to Religious Shrines (1974): Allows citizens of both countries to visit agreed-upon religious sites without discrimination.

Can India or Pakistan Suspend These Treaties?

A treaty or convention can be suspended under specific circumstances, as outlined in the Vienna Convention on the Law of Treaties (VCLT). Suspension means a temporary cessation of the operation of the treaty’s provisions between some parties. The treaty itself remains in force, but is not actively applied the duration of the suspension.

Grounds for Suspension:

By the Terms of the Treaty Itself:

The treaty may contain specific provisions allowing for its suspension under certain conditions or for a defined period.

By Agreement of the Parties:

Mutual Agreement: All parties to a treaty can agree to suspend its operation, either entirely or in part, and for a specific period.
Agreement Between Certain Parties Only: Two or more parties to a multilateral treaty can agree to suspend the operation of the treaty temporarily and as between themselves, provided that:
- The suspension does not affect the enjoyment of rights or the performance of obligations of the other parties.
- The suspension is not incompatible with the object and purpose of the treaty.
- Unless the treaty mentions otherwise, the other parties must be notified of the intention to conclude such an agreement and of the provisions to be suspended.

Implied by Conclusion of a Later Treaty:

A treaty may be considered suspended if:

all the parties to it conclude a later treaty relating to the same subject matter, and
it seems from the later treaty or is otherwise established that the parties intended the matter to be governed only by the new treaty, or
if the provisions of the later treaty are so incompatible with the earlier one that they cannot be applied simultaneously.

As a Consequence of its Breach (Material Breach):

A material breach (which means violating any of the terms of the treaty) by one party may entitle other parties to suspend the operation of the treaty:
- Bilateral Treaty: A material breach by one party entitles the other to suspend the treaty in whole or in part.
- Multilateral Treaty:
  - The other parties may, by unanimous agreement, suspend the treaty in whole or in part with respect to all parties or only in their relations with the breaching state.
  - A party specially affected by the breach may suspend the treaty in whole or in part in its relations with the breaching state.
  - Any other party may suspend the treaty with respect to itself if the breach is of such a character that it radically changes the position of every party concerning the further performance of its obligations.
A material breach is defined as:
- A repudiation of the treaty not sanctioned by the VCLT.
- The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
However, this does not apply to provisions relating to the protection of the human person contained in humanitarian treaties, particularly those prohibiting reprisals.

When a treaty becomes Impossible to execute:

A country can pause or stop following a treaty if it becomes temporarily impossible to carry it out, like if something essential for the treaty is lost or destroyed for a while. But the country can’t use this excuse if the problem was caused by its own actions or by breaking another international rule.

E.g.: Country A and Country B have a treaty allowing Country A to use a port in Country B for delivering humanitarian aid. If a natural disaster, like an earthquake, destroys the port, Country A can suspend the treaty due to temporary impossibility—since the event was beyond their control. However, if Country A caused the port’s destruction, for example by bombing it, they cannot claim impossibility to suspend the treaty.

Fundamental Change of Circumstances:

While primarily a ground for termination or withdrawal, a fundamental change of circumstances may, in some cases and under specific conditions, potentially lead to a temporary suspension, although this is less common. The change must:

be unforeseen,
relate to circumstances that constituted an essential basis of the party’s consent,
radically alter the extent of obligations still to be performed, and
not be due to a breach by the invoking party.

The framework of international law, particularly as outlined in the Vienna Convention on the Law of Treaties, provides the bedrock for understanding the binding nature and application of agreements between nations. States have a fundamental obligation to uphold their treaty commitments in good faith.

The recent tragic events in Pahalgam cast a shadow over India-Pakistan relations and raise questions about the future of their bilateral agreements. The VCLT lays out specific conditions under which a treaty can be suspended. These conditions range from explicit provisions within the treaty itself and mutual agreement to material breach and supervening impossibility of performance.