LEGAL VALIDITY AND ETHICAL CONCERNS OF AI IN MEDIATION
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT
The rise of artificial intelligence in alternative dispute resolution has sparked debate over its legal and ethical implications. Proponents note that such tools can improve efficiency and consistency, but experts warn that these applications must still align with core values of the field. Industry surveys have emphasised that any use of artificial intelligence in dispute resolution must uphold fundamental principles such as fairness, transparency, and due process (Burn, Morel de Westgaver and Clark 2023). UNCITRAL’s technical notes explicitly list due process, fairness, accountability, and transparency as cardinal principles for online dispute resolution (UNCITRAL 2020). This paper examines whether decisions generated by such systems can be legally binding, particularly in international mediation, and whether they can satisfy due process norms. It also explores how algorithmic bias and the absence of human nuance threaten the legitimacy of outcomes reached in this way. The analysis shows that, while no jurisdiction currently bars settlements assisted in this manner, enforceability depends on traditional rules of consent and contract. At the same time, ensuring impartiality, oversight, and the mitigation of bias is critical to preserving the integrity of mediated agreements.
KEYWORDS *
Artificial intelligence, mediation, arbitration, due process, party autonomy, enforceability, Singapore Convention, algorithmic bias, transparency, human oversight, confidentiality, legitimacy
INTRODUCTION
Mediation is a consensual, often cross-border or commercial method of resolving disputes outside the courts. Globally, mediated settlement agreements, once signed by the parties, are enforceable under instruments such as the UNCITRAL Model Law on International Commercial Mediation and the Singapore Convention on Mediation of 2019. Recently, institutions in this field and law reform bodies have begun to explore the role of artificial intelligence. Major arbitration centres have issued guiding principles or formed working groups on the subject (Eftekhar 2025). An industry report highlights that while such tools offer substantial benefits, including increased efficiency and enhanced access to justice, they simultaneously raise serious concerns, noting that they also pose significant legal and technical issues and that their adoption requires careful consideration to ensure compatibility with the principles and values of arbitration, such as fairness, impartiality, transparency, and party autonomy (Burn, Morel de Westgaver and Clark 2023). Likewise, UNCITRAL’s technical notes emphasise that any online dispute resolution system must embody impartiality, due process, fairness, accountability and transparency (UNCITRAL 2020). Hence, while these systems may streamline mediation, for example by analysing data or drafting settlement terms, experts uniformly stress that outcomes must preserve the parties’ procedural rights and ethical norms.
MAIN CORPUS
Legal validity of machine-generated decisions in mediation
The legal effect of an outcome reached with such assistance depends on established law. In international arbitration, parties typically delegate decision-making to a tribunal whose award is binding under conventions such as the New York Convention. However, many arbitration laws and institutional rules explicitly or implicitly require natural persons as arbitrators (Norton Rose Fulbright 2024). Although the principal treaties do not expressly forbid the practice, many arbitration laws and institutional rules require arbitrators to be natural persons or to possess qualities that presuppose this. By contrast, no major treaty currently addresses machine-generated arbitral or mediated decisions. In practice, if an arbitrator relies on such tools beyond agreed parameters without disclosure, courts or tribunals could later set aside the award for procedural irregularity (JAMS ADR 2024). One commentator warns that unauthorised use of this kind could jeopardise the enforceability of an award under due process principles (JAMS ADR 2024). The European Union’s Artificial Intelligence Act classifies use in judicial decision-making, and in dispute resolution outcomes producing legal effects, as high risk, imposing strict transparency and oversight requirements.
In mediation the situation is different. Mediation outcomes are not awards but voluntary settlement agreements. Those agreements become legally binding as contracts once signed by the parties, and may be enforceable under the Singapore Convention if international, irrespective of whether a human or a machine assisted in reaching them. A system could propose terms, but they bind the parties only if the parties agree and sign. There is no known law expressly forbidding the generation of a settlement proposal in this way. However, because mediation is predicated on party autonomy and consent, any such system must operate with clear party authorisation. To date no country has a specific statute on the subject; enforcement would rely on general contract and procedural law.
The absence of a legal prohibition is not the same as positive endorsement. In my view this legal vacuum calls for proactive regulation. Jurisdictions could consider inserting specific provisions in mediation statutes clarifying the permissible scope of such involvement, especially in sensitive or cross-cultural disputes where trust and human intuition play a crucial role. Recommendations generated in this manner are not binding unless the parties formally accept them, and to be safe the parties should explicitly consent to any such involvement in order to ensure that a mediated agreement later holds up as valid (Norton Rose Fulbright 2024; JAMS ADR 2024).
Key points on legal status
Arbitration and mediation distinguished. Arbitral awards are legally binding, subject to review, while mediated settlements are binding only as contracts. Use as an arbitrator raises questions of consent and statutory authority (Norton Rose Fulbright 2024). Use in mediation must ultimately result in a signed agreement in order to be enforceable.
Party autonomy. Under the UNCITRAL framework and arbitration law, the parties control their process. If they agree to such assistance, whether by clause or by procedural order, its output can be incorporated. Without such consent, reliance on it could compromise due process (JAMS ADR 2024).
Regulatory regime. There is currently no dedicated law on artificial intelligence in dispute resolution. Regulators and courts would apply existing rules on arbitral tribunals, mediator ethics, and contract formation. The classification of dispute resolution decisions as high risk under European legislation indicates that future regulation may require strict oversight of any outcome reached in this way (European Commission 2021; Zilberman 2023).
Due process, impartiality and fairness
Even where such tools are legally permitted, they must respect fundamental principles. Mediation, especially in international settings, demands fairness and neutrality. UNCITRAL’s technical notes advise that online dispute resolution must be impartial and compliant with due process (UNCITRAL 2020). In practice this means that each party should have a meaningful opportunity to present its case and to understand how conclusions are reached. Human mediators rely on face-to-face dialogue, empathy, and adaptive judgement. By contrast, such systems currently lack empathy and situational awareness. This gap becomes especially problematic in mediation, where emotional sensitivity often guides resolution. One observer notes that a leading mediator’s particular strength is making parties feel heard, and that mediators build trust and credibility through fairness and emotional intelligence. On this view, objectivity and fairness play a critical role, but emotional intelligence cannot be underestimated, and parties tend to accept a solution only if they trust the mediator (Cao, Cheung and Li 2023). As another author asks, has anyone yet encountered a computer showing empathy or emotion (Fasolo 2025)?
In my view these qualities are not merely helpful; they are indispensable. The essence of mediation lies in trust building and emotional validation, which no such system can replicate. It lacks consciousness, cannot read non-verbal cues, and is incapable of contextual emotional responsiveness. Delegating mediation to machines, even partially, reduces a fundamentally human process to a mechanical transaction, stripping it of the psychological safety that parties often need in order to resolve conflict.
Principles to uphold
Transparency. The opacity of such systems can undermine the parties’ ability to scrutinise outcomes. Guidelines suggest disclosing their use where it affects decisions (Draper 2019). Parties should understand how a recommendation was arrived at and should have the opportunity to challenge or override it.
Human oversight. Experts agree that such tools should aid rather than replace human judgement (ADR Institute of Canada 2023). Arbitrators and mediators must review all outputs: the tools can analyse data, but a human must assess context, catch errors, and ensure that cultural and emotional factors are considered. Unchecked reliance risks procedural unfairness and may later be held invalid (JAMS ADR 2024).
Impartiality. In theory such a system, absent bias, could be indifferent as between the parties. In reality, training data and algorithms can embed subtle biases or preferences (Eftekhar 2025). Ensuring neutrality requires carefully curated data and oversight. Practitioners must verify that the logic applied is free from undue favouritism toward any side or outcome.
Confidentiality and security. Mediation is often confidential. Using such tools requires strict data protection, especially where third-party servers process private information (ADR Institute of Canada 2023). Any platform must be vetted to prevent the disclosure of sensitive information, for example by using systems hosted within the practitioner’s own environment rather than public services. Breaches of confidentiality could contravene mediator ethics rules and erode party confidence.
Due process risks
Delegating aspects of mediation to such systems raises due process concerns akin to those in arbitration. One commentator cautions that novel use could give rise to due process violations or a claim of irregularity if parties are caught off guard (JAMS ADR 2024). For example, if a proposed settlement is delivered without allowing the parties to argue their case fully, or if one party had no role in the selection of training data, a party might object to enforcement. Maintaining procedural fairness means that the parties should consent to the role such a system plays and should retain final control over accepting its recommendations (JAMS ADR 2024; ADR Institute of Canada 2023).
Bias and legitimacy
The potential for bias presents a serious ethical challenge to legitimacy. By design, machine learning systems reflect the data on which they are trained. If historical case data or heuristic rules contain gender, racial, or cultural bias, a system operating in this field will mirror those biases. As has been observed, if there is bias in the input, there will be bias in the output (Eftekhar 2025). Experts in international mediation have likewise raised concerns about cognitive, linguistic, age, and gender biases embedded in algorithms (Fasolo 2025). Parties who suspect that a system has been trained on skewed data may refuse to accept its conclusions, undermining trust in the process (ADR Institute of Canada 2023).
This problem is not merely technical; it strikes at the heart of legitimacy. Unlike human bias, which is subject to ethical scrutiny and corrective feedback in real time, algorithmic bias is often invisible and unaccountable. Worse, once embedded in opaque models, such bias can silently skew outcomes across many cases without the parties’ knowledge. In my view, relying on tools with hidden or untraceable bias risks systemic unfairness and delegitimises the very outcomes that are meant to promote resolution.
At the same time, such systems could reduce certain human biases, such as fatigue or inconsistent emotion-driven decisions, if properly managed. Studies suggest that they can provide a neutral perspective by analysing facts uniformly (Cao, Cheung and Li 2023). However, scholars caution that algorithmic fairness is not automatic. Even demonstrably fair algorithms can perpetuate hidden biases, and any algorithm that weighs certain factors, such as historical outcomes, inherently favours some results. Moreover, large language models are known to fabricate information (JAMS ADR 2024), raising additional fairness issues where output is not verified.
Mitigation measures
Bias auditing. Toolkits developed for this purpose aim to test and correct bias before deployment (Bellamy et al. 2018). In dispute resolution, such tools could scan recommendations for signs of unfair patterns, for example a consistent tendency to favour businesses over individuals.
Party control of data. Parties could negotiate which data a system uses. Excluding sensitive attributes such as race or nationality from the input can reduce some biases.
Guidelines and regulation. Emerging best practice emphasises that users must understand the limitations of these tools, retrain models where bias is found, and keep a human in the loop able to override unjust results (ADR Institute of Canada 2023).
If bias is not managed, the legitimacy of mediation itself suffers. Perceptions of fairness are crucial: parties are more likely to abide by a settlement if they believe the process was fair (Cao, Cheung and Li 2023). Conversely, a tainted outcome, even if technically sound, may not be regarded as just or trustworthy. Ensuring transparency and fairness is therefore not merely an ethical ideal but a practical necessity for enforceable and durable outcomes.
SUMMARY *
The article’s legal finding is straightforward and worth stating plainly because it dissolves much of the anxiety around the subject: a mediated settlement binds because the parties signed it, and the question of what assisted in producing the text is legally irrelevant to its enforceability. Where the difficulty lies is in the two conditions that surround the signature, namely that the parties knew what was assisting and consented to it, and that each had a genuine opportunity to be heard. The article’s second argument is of a different order. It holds that even where every legal condition is satisfied, something essential is lost, because what makes a party accept an outcome is the experience of having been heard by someone, and that experience cannot be simulated. The author accordingly arrives at a position that is permissive in law and restrictive in practice.
CONCLUSION
Artificial intelligence promises to transform mediation by offering data-driven insight and efficiency, but it cannot remove the need for core human values. Legally, outcomes reached with such assistance can bind only under the same conditions as any settlement: party consent and formalisation, since no special exception yet exists. Most laws still assume human neutrals (Norton Rose Fulbright 2024), so practitioners should proceed carefully when introducing these tools into binding decision processes (JAMS ADR 2024).
Equally important are the ethical dimensions. International standards demand fairness, impartiality, and accountability (UNCITRAL 2020). Such systems must be overseen by humans to ensure that they apply sound reasoning and remain neutral (ADR Institute of Canada 2023; Eftekhar 2025). Unmitigated algorithmic bias poses a clear threat to legitimacy; parties must be able to trust that no side is being quietly favoured.
In sum, the law currently treats artificial intelligence as a tool rather than a substitute: its outputs bind only to the extent that the parties accept them and due process is preserved (JAMS ADR 2024; UNCITRAL 2020). Ongoing developments in institutional guidelines and regulation aim to close the gap between technology and legal norms. Until then, the safest course is a human-centred approach: use these tools to assist mediation, but let human mediators and the parties retain ultimate control over the fairness and validity of the settlement. Ultimately, mediation’s legitimacy derives not from speed or efficiency but from meaningful human engagement. Such tools may assist with administrative efficiency, but allowing them to shape, suggest, or direct settlement terms distorts the nature of consensual dispute resolution. If the goal is not merely resolution but just resolution, then artificial intelligence must remain firmly subordinate to human mediators, as an instrument and not as an agent.
POTENTIAL SOLUTION *
The legal analysis is correct and one consequence of it deserves to be drawn out, because it is more reassuring than the framing suggests. A settlement is a contract, and contracts are set aside for want of capacity, for duress, for mistake, or for misrepresentation. None of these turns on what tool produced the draft. The exposure therefore lies almost entirely in non-disclosure: a party who discovers after signature that the mediator’s proposals were machine-generated, and who was not told, has an argument about the integrity of the process that would not otherwise exist. Disclosure at the outset closes that gap at negligible cost, and it is the single measure that most reduces risk. The Silicon Valley Arbitration and Mediation Center guidelines and the recent institutional notes point in the same direction.
The distinction that would sharpen the argument is between the uses of these tools, which the article treats as a single question. Summarising documents, preparing chronologies, translating, and administering scheduling raise no issue of principle and are already common. Analysing settlement ranges from comparable cases informs the mediator without touching the parties’ autonomy. Drafting proposed terms begins to shape the outcome. And generating an evaluation of a party’s case, or a recommendation as to what it should accept, is the point at which the tool has entered the substance of the process. These four uses call for different degrees of disclosure and consent, and a blanket position on either side of the debate obscures that.
On the empathy argument, which the article makes strongly, one qualification is worth adding because it does not weaken the conclusion. Online dispute resolution platforms handling very high volumes of low-value disputes have resolved millions of cases without any human present, and the parties have largely accepted the outcomes. This suggests that the human element matters in proportion to what is at stake and to whether the parties have a continuing relationship. Where a dispute concerns a defective purchase, an efficient and consistent process is what fairness looks like; where it concerns a family, a workplace, or a community, it is not. The author’s argument is therefore right about the disputes this journal’s readers actually handle, and stating the boundary makes it harder to dismiss.
Two additions on practice. Confidentiality is the most immediate exposure and the least discussed: a mediator who enters party material into a service that retains inputs for training may have breached an obligation before any question of fairness arises, and the remedy is contractual and technical rather than ethical. And the fabrication problem the article notes has already produced sanctions against practitioners in several jurisdictions for citations that did not exist, which is a reminder that the first professional risk here is not that these systems will be unfair but that they will be confidently wrong.
Finally, the article’s closing formulation, that the goal is not merely resolution but just resolution, identifies what is genuinely at stake. Efficiency arguments in dispute resolution have a long history of arriving as improvements and settling as reductions in what parties receive, and the question to ask of any such tool is not whether it saves time but who benefits from the time saved. Where the answer is the parties, the case is strong. Where the answer is the institution, the parties should be told, and should be asked.
* Added by the WMO Editorial Team
REFERENCES
ADR Institute of Canada (2023) Utilizing AI-Powered Tools in Arbitration.
Bellamy, R. K. E., Dey, K., Hind, M., Hoffman, S. C., Houde, S., Kannan, K., Lohia, P., Martino, J., Mehta, S., Mojsilovic, A., Nagar, S., Ramamurthy, K. N., Richards, J., Saha, D., Sattigeri, P., Singh, M., Varshney, K. R., and Y. Zhang (2018) AI Fairness 360: An Extensible Toolkit for Detecting, Understanding, and Mitigating Unwanted Algorithmic Bias. arXiv.
Burn, G., Morel de Westgaver, C., and V. Clark (2023) AI in International Arbitration: The Rise of Machine Learning. Bryan Cave Leighton Paisner arbitration survey.
Cao, N., Cheung, S. O., and K. Li (2023) Perceptive Biases in Construction Mediation: Evidence and Application of Artificial Intelligence. Buildings 13(10), Article 2460.
Draper, C. (2019) The Pull of Unbiased AI Mediators. International Journal on Online Dispute Resolution 6(1), 116 to 136.
Eftekhar, R. (2025) The Legal Framework Applicable to Using AI by an Arbitral Tribunal. DailyJus, 25 March 2025.
European Commission (2021) Proposal for a Regulation Laying Down Harmonised Rules on Artificial Intelligence, COM(2021) 206 final.
Fasolo, N. (2025) The Future of Mediation: AI, Funding, and Global Trends. DailyJus, 23 April 2025.
JAMS ADR (2024) The Use of AI in ADR: Balancing Potential and Pitfalls. JAMS ADR Insights, 31 January 2024.
Norton Rose Fulbright (2024) New Frontiers: Regulating Artificial Intelligence in International Arbitration.
United Nations Commission on International Trade Law (2006) UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006.
United Nations Commission on International Trade Law (2019) United Nations Convention on International Settlement Agreements Resulting from Mediation, the Singapore Convention on Mediation.
United Nations Commission on International Trade Law (2020) Technical Notes on Online Dispute Resolution.
Zilberman, L. M. (2023) Will AI Mediators Soon Replace Humans? The Simple Answer Is No. The Daily Journal, 10 November 2023.
Supplementary references added by the WMO Editorial Team
Regulation (EU) 2024/1689 laying down harmonised rules on artificial intelligence, and Annex III on high risk systems in the administration of justice.
UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018.
Silicon Valley Arbitration and Mediation Center, Guidelines on the Use of Artificial Intelligence in Arbitration, 2024.
Chartered Institute of Arbitrators, Guideline on the Use of AI in Arbitration, 2025.
Katsh, E., & Rabinovich-Einy, O. (2017). Digital Justice: Technology and the Internet of Disputes. Oxford University Press, New York.
Susskind, R. (2019). Online Courts and the Future of Justice. Oxford University Press, Oxford.
Barocas, S., Hardt, M., & Narayanan, A. (2023). Fairness and Machine Learning: Limitations and Opportunities. MIT Press, Cambridge.
Tyler, T. R. (2006). Why People Obey the Law. Princeton University Press, Princeton, on procedural justice and perceived fairness.
Can India Unilaterally Exit The Indus Water Treaty? A Legal Analysis Under The Vienna Convention.
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
EDITORIAL NOTE *
This article assesses the conduct of a state in a live bilateral dispute and reaches critical conclusions about it. The legal analysis and the attribution of responsibility reflect the author’s own perspective; this journal’s editorial position is neutral as between the states concerned. The article was written in 2025 and should be read with that date in mind.
ABSTRACT
This paper explores India’s recent actions to withdraw from certain treaty obligations and assesses whether such unilateral termination is legally permissible. The research finds that international humanitarian law prohibits the weaponization of water resources against civilian populations, highlighting the severe humanitarian consequences of disrupting water flows. Drawing on the Vienna Convention on the Law of Treaties, the paper argues that the Treaty can only be terminated by mutual consent, and that unilateral withdrawal violates international law. It emphasises that material breach or impossibility do not justify exit unless they fundamentally disrupt the Treaty’s purpose, which remains intact. The paper draws comparisons between the Indus Waters Treaty and other international water treaties that include explicit exit clauses, in order to highlight its unique rigidity. Finally, it recommends diplomatic engagement through existing treaty mechanisms, third-party mediation, and treaty modernization to address current challenges, including security concerns and climate change.
KEYWORDS
Indus Waters Treaty, Vienna Convention on the Law of Treaties, unilateral withdrawal, treaty termination, humanitarian law, water resources, India-Pakistan relations, international dispute resolution, treaty modernization
INTRODUCTION
The Indus Waters Treaty has long been seen as something of a marvel; it is a bright spot in a region often marked by conflict. It was signed in 1960, with the World Bank acting as mediator, and it has survived wars, diplomatic breakdowns, and numerous tense standoffs (World Bank Group 2025b). But India’s recent moves, first requesting modification in 2023 (The Hindu 2023) and then suspending its commitments in 2025 (NDTV 2025), raise a thorny legal question: can a country simply step away from a bilateral treaty that has no exit clause and that requires mutual agreement before obligations may be suspended?
This paper takes a close look at whether India’s position falls within the bounds of customary international law, using the Vienna Convention on the Law of Treaties as a guide (United Nations 1969). Neither India nor Pakistan has formally acceded to this Convention, but its core principles, encompassing the idea that treaties must be kept in good faith, the manner in which treaty terms are interpreted, and the strict rules around ending or suspending treaties, offer the clearest lens through which this problem can be viewed.
Most literature on the Indus Waters Treaty tends to focus on the politics or on the detail of water sharing itself. But the legal question of whether a country can unilaterally exit a treaty that has no exit clause has yet to be explored. This paper asserts that while international law does allow for withdrawal or suspension in very exceptional situations, the threshold is high, and the reason for withdrawal should not deviate from the original intention of signing the treaty. Leaving the Treaty unilaterally risks stirring political turmoil and, more worryingly, sets a shaky precedent as to how seriously nations should treat their treaty promises.
MAIN CORPUS
Origins and structure of the Indus Waters Treaty
The Indus Waters Treaty was signed on 19 September 1960, following nine years of negotiation, and was mediated by the World Bank under the presidency of Eugene Black (World Bank n.d.). It was praised by many, including President Eisenhower, as a rare diplomatic achievement in a region otherwise entrenched in strife (World Bank Group 2025b).
Under Article III of the Treaty, India was assigned the Eastern Rivers, the Ravi, Beas and Sutlej, whereas Pakistan received the Western Rivers, the Indus, Jhelum and Chenab, although both nations were permitted restricted uses of each other’s rivers (Indus Waters Treaty 1960).
The Treaty includes a Permanent Indus Commission for day-to-day implementation; a three-tiered dispute resolution system, in which questions are addressed by the Commission, differences referred to a Neutral Expert, and disputes escalated to a Court of Arbitration; and a procedural role for the World Bank in the appointment of neutral authorities.
Despite this solid foundation, the Treaty lacks an exit clause or any provision for unilateral withdrawal or suspension by either party.
Evolving tensions between the two countries
India’s move to build hydropower projects on tributaries of the Western Rivers, such as Kishenganga and Ratle, added to existing friction (Permanent Court of Arbitration 2013). Pakistan argued that these projects did not meet the Treaty’s standards, and this sparked proceedings before a Neutral Expert and then a Court of Arbitration (Permanent Court of Arbitration 2013). In 2016 the World Bank paused both processes in order to allow for a diplomatic solution (World Bank 2016), and they resumed in 2022 (World Bank 2022).
Matters deteriorated after India submitted a notification in 2023 requesting that the Treaty be amended (The Hindu 2023). Following the Pahalgam attack, in which 26 people were killed, India announced in April 2025 that it would hold its treaty obligations in abeyance (NDTV 2025). This was the first occasion in almost sixty years on which such a step had been taken. India did not formally terminate the Treaty, but it ceased sending hydrological data and indicated that it would make increasing use of the Western Rivers (NDTV 2025). Pakistan described this as a violation of international law and, potentially, an act of war (Reuters 2025).
Humanitarian and socio-economic impacts
India’s suspension of its obligations under the Treaty has left less of a legal vacuum than a human one. The Indus, Jhelum and Chenab are crucial for Pakistan’s agriculture, since they provide the irrigation necessary for food production. Even minor alterations in their flow can cause substantial reductions in crop production.
India has tightened its control over the Chenab following the attack, which means that Pakistan’s main dams, Mangla and Tarbela, would receive less water (The Economic Times 2025). This has put the sowing season for kharif crops in Punjab and Sindh at risk, since these areas depend on these rivers for irrigation (The Economic Times 2025). More than 80 per cent of Pakistan’s farmland relies on the Indus river system, and any disruption to that system may significantly threaten food security, crop production, and rural livelihoods (Grip Invest 2025).
It is true that international law offers states room to navigate changing circumstances. There are doctrines that permit suspension or reinterpretation of treaty obligations, such as the doctrine of necessity, but only in rare and urgent moments where an essential interest must be protected, and only where doing so does not seriously impair the interests of other states (International Law Commission 2001, Art. 25). But law is not insulated from consequence. These are not choices made only in the rarefied air of diplomatic chambers. Their weight lands in darkened classrooms, in dry taps, in hospital wards running short of power.
The Treaty is a lifeline. If a state chooses to walk away from it, the conversation must extend beyond legality, and must confront the cost borne not by the two governments or their negotiators, but by those who had no say in the drafting and yet live within its flow every day.
Can there be unilateral termination under the Treaty?
One of the Treaty’s most pragmatic features is the tiered dispute resolution mechanism set out in Article IX (Ministry of External Affairs n.d.). It begins with the Permanent Indus Commission and, if needed, proceeds to a Neutral Expert or a Court of Arbitration (World Bank Group 2025). This structure is not merely theoretical; it has been tested. Disagreements over the Baglihar Dam and the Kishenganga project were settled within this framework (Salman 2008). In the Kishenganga case, India’s right to divert water was upheld by the Court of Arbitration in 2013, but only subject to conditions preserving Pakistan’s access (Permanent Court of Arbitration 2013).
Yet a more challenging question now arises: can a country step back from such a treaty unilaterally? Article XII(4) answers this clearly. The Treaty can be terminated only by a duly ratified treaty concluded between the two governments (Ministry of External Affairs n.d.). In other words, mutual consent is non-negotiable. The Vienna Convention, reflecting customary international law, echoes this view: parties are to be held to their obligations even when tempers run high (United Nations 1969, Arts. 26, 54 to 56).
Weaponizing water: a violation of international humanitarian law
The Geneva Conventions forbid the use of water supply as a weapon against civilians, and essential resources such as water therefore cannot be weaponized in response to violence. Cutting off or damming rivers that supply civilian populations raises grave humanitarian law issues. International humanitarian law explicitly forbids the starvation of civilians as a method of warfare, including by targeting essential water resources (ICRC 1949). Under Additional Protocol I of 1977 it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as drinking water installations and supplies, where this is done for the specific purpose of denying their sustenance value to the civilian population (ICRC 1977a). The same prohibition appears in Protocol II for non-international armed conflicts (ICRC 1977b). Any deliberate reduction of water flows intended to punish Pakistan’s civilian population would therefore engage this prohibition.
Unpacking the Vienna Convention: the high bar for treaty exit
To understand the legal standing of the Treaty, it is necessary to return to first principles, specifically to the Vienna Convention on the Law of Treaties, which provides the governing framework for how treaties are understood, interpreted, and, in rare cases, brought to an end (United Nations 1969).
The principle of pacta sunt servanda. Article 26 lays down the principle of pacta sunt servanda: every treaty in force must be performed in good faith. Good faith here is not a sentimental appeal; it is a legal obligation that anchors the stability of international relations (United Nations 1969, Art. 26). Article 31 then adds texture, requiring that a treaty be read holistically in the light of its text, context, object and purpose (United Nations 1969, Art. 31). For the Indus Waters Treaty that purpose is clear: a stable, long-term system of water sharing between two states that otherwise share little trust. This approach aligns with the principle that treaties must be interpreted in good faith, having regard to their text, context, and overarching objectives (Villiger 2009).
The Treaty can only be terminated by mutual agreement. If one asks under what circumstances such a treaty could be terminated, the Vienna framework offers answers but sets the bar deliberately high. Article 54 allows a treaty to be ended either in conformity with its own provisions or by consent of all the parties (United Nations 1969, Art. 54). Article XII(4) of the Treaty permits termination only through a new, mutually agreed treaty. In simpler terms, there is no lawful scope for one party to walk away unilaterally (Ministry of External Affairs n.d.). Article 56 allows withdrawal only where such an intention can be established from the nature of the treaty or was intended by the parties at the time of its conclusion (United Nations 1969, Art. 56). Since the Treaty contains a specific and binding provision governing its termination, Article 56 cannot be invoked as a route to unilateral exit. To do so would circumvent both the express language of the Treaty and the framework set by the Convention.
Material breach and the myth of impossibility. The temptation to argue material breach under Article 60 as a ground for exit must also be met with caution (United Nations 1969, Art. 60). A treaty may be suspended or terminated where the other party has fundamentally violated its core provisions. But the violation must be internal to the treaty itself. A tenuous link between a state and acts of terrorism, in the absence of clear and direct evidence, does not amount to a breach of the Indus Waters Treaty unless it can be shown to interfere directly with the Treaty’s implementation (Villiger 2009). The International Court of Justice in the Gabčíkovo-Nagymaros case made clear that even grave violations may justify countermeasures but not unilateral termination of a treaty; the obligation endures (International Court of Justice 1997, paras. 106 to 109). Likewise, Article 61 and its bar of permanent impossibility finds little application here: the rivers flow, the infrastructure stands, and the Treaty’s object remains intact (United Nations 1969, Art. 61). Even severe environmental change does not amount to the disappearance or destruction of an object indispensable for the execution of the treaty.
The doctrine of rebus sic stantibus. Article 62 addresses a fundamental change of circumstances (United Nations 1969, Art. 62). Such a change must be both unforeseen and must have radically transformed the extent of obligations still to be performed (Shekhawat and Shekhawat 2022). The threshold is exacting: not all change is fundamental, and not all fundamental change justifies exit. The International Court of Justice has been clear that Article 62 is not a loophole, rejecting Hungary’s claim of fundamental change of circumstances and holding that the provision must be interpreted restrictively (International Court of Justice 1997, paras. 104 to 114). Where a treaty contains no agreed terms for denunciation or withdrawal, it may be terminated only on the grounds set out in the Convention.
Article 62 is not a convenient exit route for states looking to escape inconvenient commitments. The provision sits within a broader architecture of customary international law built on the understanding that treaties are not ephemeral promises but the scaffolding of international order. To unravel one casually is to pull at threads that hold many others together. The law therefore demands more than mere dissatisfaction; it demands disruption so fundamental that the treaty in its original form simply cannot survive. That threshold, as the Court reminds us, is high, and deliberately so.
A comparative perspective: what other treaties teach us about exit
If the Indus Waters Treaty feels like a relic of a bygone diplomatic era, that is because in many ways it is. Negotiated in the late 1950s under the shadow of partition and Cold War realpolitik, it lacks the treaty architecture that many later agreements have incorporated, particularly with regard to exit, review, and recalibration (World Bank n.d.).
Under Article X of the Treaty on the Non-Proliferation of Nuclear Weapons, exit is permitted where extraordinary events have jeopardised the supreme interests of a state party (United Nations Office for Disarmament Affairs n.d.). When North Korea invoked this clause in 2003, whatever the political controversy, the mechanism itself illustrates what a lawful withdrawal provision looks like.
Similarly, the Nile Basin Cooperative Framework Agreement of 2010, a multilateral arrangement over transboundary waters, includes clear provisions allowing any party to exit on notice (Nile Basin States 2010). The structure is orderly and the process transparent. There is room for disagreement, but also a route to disengagement.
By contrast, the Indus Waters Treaty contains no such clause (Ministry of External Affairs n.d.). It is silent on how it might end, and under Article 54 of the Vienna Convention that silence is meaningful (United Nations 1969, Art. 54). A treaty that does not provide for unilateral termination can be ended only by mutual consent or in accordance with its own terms. In this case Article XII(4) reinforces the point: the Treaty continues unless both India and Pakistan agree to amend or terminate it.
Turning to other bilateral water treaties, the Ganga Waters Treaty of 1996 between India and Bangladesh is finite, lasting thirty years, and contains built-in review mechanisms (Haque 2025). That period expires in 2026, and both countries are already preparing for renegotiation. By contrast the Indus Waters Treaty has no review period, no renegotiation clause, and no sunset provision. It is a permanent fixture, and permanence in international law means predictability but also rigidity.
Another example is the United States and Mexico Water Treaty of 1944. Like the Indus Waters Treaty it contains no withdrawal clause (United States and Mexico 1944). Yet despite numerous disputes over allocation from the Colorado River, both countries have relied heavily on their technical commission, using negotiation to update operational protocols through instruments known as Minutes (International Boundary and Water Commission 2023; United States Department of State 2017), and have avoided collapse. This shows that even treaties with no legal exit are not doomed to irrelevance; they endure through political will rather than through legal loopholes.
This establishes that under modern treaty law, no state can unilaterally withdraw from a bilateral water-sharing agreement such as the Indus Waters Treaty without breaching international law.
Recommendations and way forward
First and foremost, India and Pakistan should make the most of the tools already in place in the Treaty, especially the Permanent Indus Commission. The Commission was established to provide a direct line of communication between the two countries, giving them a forum in which to discuss and settle issues of water sharing, security, or data before they escalate. Both countries can ensure that problems are handled lawfully and peacefully by referring unresolved concerns to a Neutral Expert or to arbitration, as the Treaty provides (Climate Diplomacy n.d.). This approach helps maintain trust and lowers the chances of tension turning into conflict.
Re-engaging impartial third-party mediation is another route. The World Bank was crucial in negotiating the Treaty and has continued to play a role in the settlement of disputes (World Bank n.d.). It is an institution with a defined procedural function that can help facilitate dialogue (Gupta 2018). Bringing the World Bank or another respected international body back to the table could foster a more constructive environment in which technical and security concerns can be addressed together. Such mediation offers solutions that take account of the needs and concerns of both sides, promoting cooperation instead of confrontation.
Lastly, the Treaty needs to be reviewed and modified to meet the needs of the twenty-first century. The original agreement, signed more than sixty years ago, does not address current problems such as climate change, groundwater management, or water sharing in emergencies during floods and droughts. Both countries would benefit from working together on updated arrangements that take these issues into account. Viewing this process as a necessary and practical update rather than as a threat to the Treaty could help build trust between the two sides and ensure that the Treaty remains a strong foundation for peace and cooperation.
SUMMARY *
The article’s analytical contribution is to separate two questions that public debate has run together. Whether India has a grievance and whether India has a lawful route out of the Treaty are different matters, and the second is answered by the instrument itself: Article XII(4) provides for termination only by a subsequent ratified treaty, and the Vienna Convention’s grounds for exit, material breach, impossibility, and fundamental change, are each shown here to be unavailable on the facts, since the alleged breach lies outside the treaty relationship, the rivers continue to flow, and the object of the agreement is undisturbed. The comparative section then turns the finding around: the absence of an exit clause is treated by the author as a defect of an older drafting era, and the American and Mexican example is offered to show that such treaties survive through institutional practice rather than through legal escape routes.
CONCLUSION
The Indus Waters Treaty has endured decades of political upheaval, conflict, and prolonged diplomatic impasse between India and Pakistan (World Bank n.d.). This endurance is not merely coincidental; it is attributable to a legal structure capable of managing stress and channelling dialogue rather than discord. Legally, there is limited scope to justify a unilateral withdrawal. Article XII(4) stipulates that any termination must be agreed by both parties (Ministry of External Affairs n.d.).
The Vienna Convention supports this position, favouring stability and continuity over unforeseen withdrawal (United Nations 1969). The law generally favours the preservation of agreements over their dissolution, even in the presence of significant grievance, and it maintains stability rather than permitting abrupt change, particularly amid political upheaval (Villiger 2009). States cannot withdraw from agreements solely because of unrelated disputes, even where those disputes concern critical security matters (United Nations 1969, Arts. 56 to 62).
However, it would be imprudent to assume that the arrangement is without flaws. Significant changes have occurred since 1960, encompassing the environment, water usage, and international relations (Nahar 2025). Where change is necessary, it must also adhere to the law. This may entail modifying the responsibilities of the Permanent Indus Commission or examining technical regulations for addressing climate-related risks (Eco-Business 2023). This would not undermine the agreement; it would enhance its usefulness and responsiveness.
The Treaty transcends mere water management. It is a legal framework predicated on the notion that even adversarial nations can reach consensus on matters vital to their survival. That conviction remains valid, but it should not be upheld by disregarding the Treaty. Rather, the parties should work within it in order to adjust to new circumstances.
POTENTIAL SOLUTION *
The legal analysis is sound and one distinction would sharpen it considerably, because it is the distinction on which the Indian position actually rests.
India has not purported to terminate the Treaty. It has declared it to be held in abeyance, a term that appears nowhere in the Treaty and nowhere in the Vienna Convention, and this is deliberate. Termination and suspension are governed by Articles 54 to 62 and are unavailable here for the reasons the author gives. Abeyance is a claim of a different kind: that performance is withheld pending a response to a grievance, which in legal terms is closer to a countermeasure under the law of state responsibility than to any doctrine of treaty law. That framing matters because countermeasures have their own conditions, which are exacting and which the article’s own materials establish are not met here: they must respond to an internationally wrongful act by the target state, be proportionate, be reversible, be directed at inducing compliance rather than at punishment, and must not derogate from obligations for the protection of fundamental human rights or from obligations of a humanitarian character. Water supply to a civilian population engages the last of these directly.
The second point is practical and cuts against the alarm in much commentary. India cannot presently do what the suspension threatens. Storing or diverting the Western Rivers at scale would require reservoir capacity and diversion infrastructure that does not exist, and building it would take a decade or more and would be technically difficult in the terrain concerned. What suspension does achieve immediately is the withholding of hydrological data, and that has consequences of its own: flood warning in the Pakistani basin depends on it, which means the measure’s first effect falls on civilian safety rather than on any government. Naming this precisely is more useful than the general warning about weaponisation, because it identifies a specific harm with a specific and cheap remedy, namely the resumption of data sharing, which no security argument requires withholding.
Two additions on the way forward. The dispute over Kishenganga and Ratle was, before the suspension, in an unusual procedural posture, with a Neutral Expert and a Court of Arbitration seized of overlapping questions at the same time, a situation the Treaty’s drafters did not anticipate and which has fuelled Indian complaints that the mechanism no longer works as intended. That complaint is not frivolous, and a settlement of the procedural question would remove one of the stated reasons for the notification of 2023. And the modernisation the article recommends has an obvious model in the instrument it cites: the Minutes procedure under the treaty of 1944 allows two states to update operational arrangements without reopening the treaty, through a standing technical commission with authority to agree binding supplements. The Permanent Indus Commission could be given a comparable mandate, and that reform requires no amendment to the substantive allocation on which neither party will move.
Finally, a word about what this journal takes from the case. The Treaty has held for sixty-five years across three wars because it removed a category of dispute from politics and placed it in the hands of engineers who met twice a year regardless of what else was happening. Its rigidity, which the author identifies as a defect, is also the reason it survived, since a treaty with an exit clause offers a route that a government under domestic pressure will eventually be urged to take. The lesson for those designing agreements between hostile parties is uncomfortable and worth stating: the provisions that make an agreement easy to leave make it easier to abandon, and the provisions that make it durable are the ones that will be resented.
* Added by the WMO Editorial Team
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Supplementary references added by the WMO Editorial Team
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Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997, Articles 5 to 7 on equitable utilisation and the obligation not to cause significant harm.
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