The ‘Abeyance’ of the Indus Water Treaty – A Strategic Ploy or a Disaster in Waiting?

“Agar firdaus bar roo-e zameen ast, Hameen ast-o hameen ast-o hameen ast.

“If there is a paradise on earth, It is this, it is this, it is this”

- Amir Khusrau

Few have described Kashmir more beautifully than Indo-Persian Sufi poet Khusrau. The land Khusrau describes was converted into a veritable graveyard on April 22, 2025. In retaliation, India suspended the Indus Waters Treaty (IWT). Apart from its water-related consequences on Pakistan, it raises a far more important question: Whether India could have done this in the first place?

Chequered treaty

The IWT needs no separate introduction. For 64 years, the treaty has been at the forefront of Indo-Pak tug of war. Previously, Pakistan has invoked IWT’s dispute settlement provision (Article IX), birthing two arbitrations. The first resulted in an award by the Permanent Court of Arbitration (PCA) in 2013. The latter is still pending (Pakistan v. India, PCA Case No. 2023-01) and has uniquely resulted in a ‘parallel’ proceeding in which both the PCA and the neutral expert have asserted competence and jurisdiction.

The Pahalgam attacks have now compelled India to announce the immediate ‘abeyance’ of IWT followed by the official notification. But can India do so?

Smart strategy or wordplay

It is interesting to note that India in its official announcement uses the phrase ‘abeyance’ with immediate effect instead of ‘suspension’ or ‘termination’. The word ‘abeyance’ means suspension or temporary inactivity (Blacks Law Dictionary; See also P. Aiyar, Concise Law Dictionary). The IWT text nowhere uses the word suspension or abeyance nor does it provide for an exit clause. In case of ‘termination’ or ‘modification’, under Article XII, such can only be done by a mutually ratified treaty. Thus, ‘abeyance’ taken on face value can only mean suspension – in this case a unilateral suspension or at best a ‘modification’. Wordplay cannot obfuscate the content, essence and effect of the word. Given this, ‘abeyance’, prima-facie, could only have been effected under Article XII.

Activation of dispute settlement

Pertinently, the unilateral suspension (which is not envisaged in the treaty ) can be seen as a violation of the treaty. This could trigger the dispute settlement provision under Article IX of the IWT. Whether the dispute settlement provision can at all be applied to such unilateral suspension is a different matter altogether. However, the prima facie reading of IX(1) can cover such unilateral suspension as it does seem to be a dispute 'concerning the interpretation...' of the treaty. By keeping the treaty in ‘abeyance’ a.k.a suspension, India has indeed exposed the vulnerable veins of Article IX. Given IWT’s history, it will not be surprising if Pakistan, once again, invokes Article IX to take India before the PCA.

The saviour and its issues

Under the Vienna Convention on the Law of Treaties, 1969 (VCLT), a treaty may only be suspended or terminated based on specific grounds, such as material breach (Article 60), impossibility (Article 61), and fundamental change (Article 62). Moreover, the VCLT does not provide for any unilateral suspension or modification owing to conflicts, political tensions and aggression of one party. The VLCT does not provide for a treaty to be unilaterally placed on hold (or in abeyance) without activating any of the grounds mentioned under Articles 60–62.

In the present case, Article 62 sits in the eye of the storm. Encapsulating the doctrinal principle of rebus sic stantibus allowing for "suspending the operation of the treaty" in the case of "fundamental change in circumstances", the preamble of IWT makes it clear that the treaty is borne out of a ‘cooperative spirit’ of ‘goodwill and friendship’. Arguably, Article 62 (a) provides enough wriggle room to consider the recent acts as a ‘fundamental change in circumstances’ of the ‘cooperative spirit’ of ‘goodwill and friendship’ that constituted an ‘essential basis of the consent of the parties’ to IWT.

Despite the apparent wriggle room, the bar of Article 62 is considerably high. The International Court of Justice (ICJ) in the case of Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [ICJ reports 1997, p 7] has held that even political and economic shifts may not be closely connected to the object and purpose of the treaty to justify termination. Considering this, India will face an uphill task to rely on Article 62.

If not Article 62, India can also turn towards Article 60. This allows suspension/termination based on a ‘material breach’ of the treaty. Since India believes that Pakistan is in material breach, this may justify suspending the treaty. Even then, the defence of Article 60 is predicated on a violation of an essential provision of the treaty – it has to be judged objectively. In the present case, IWT does not contain any provisions and/or indication, express or implied, that acts of conflict or aggression, which do not per se violate provisions of the treaty, may constitute essential conditions and justify suspension. The only justification can be by relying on Article 60(3)(b) that Pakistan’s act seriously jeopardises accomplishing the object of the treaty which is, as indicated in the preamble, ‘cooperative spirit’ of ‘goodwill and friendship’.

Moreover, the whole question of defensibility based on the VCLT looms large for two reasons. Firstly, India is not a signatory to the VCLT. Thus, the applicability of Article 62 or any provision of the VCLT will be called into question; Secondly, IWT is pre-1969– how and to what extent can the VCLT be applied will be a huge question in itself.

From another angle, it has been suggested that Pakistan can involve the ICJ. There seems to be a systemic misconception of the applicability of international law. Both India and Pakistan, though ipso facto, admitting ICJ’s jurisdiction have made several reservations under Article 36 of the ICJ statute. The last all-encompassing declaration was made in 2019 by India, replacing its earlier declaration of 1974, which excludes from the ICJ’s purview, inter-alia, disputes relating to ‘situations or collective actions…. taken for the protection of national security and ensuring national defence’. A similar declaration was made by Pakistan in 2017. Thus, given the wide ambit of the reservations made it is highly unlikely Pakistan will be able to invoke ICJ’s jurisdiction against India and vice-versa. The only way to challenge the unilateral suspension is via Article IX of the IWT.

Regardless of the controversy justifying the suspension of the IWT, India’s obligation under international law remains. International law obligates under VCLT (Art 72) and the law on state responsibility under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) ((Art 49(3)) that measures taken in the duration of the suspension or countermeasure are reversible and allow for the resumption of the performance of the relevant obligation.

The alternative workaround argument isn’t incomprehensible. Although not formally bound by the VCLT, India has implicitly endorsed the principle of pacta sunt servanda which coexists with well-accepted doctrinal principles such as countermeasures, necessity, and state sovereignty. These principles may, in exceptional cases, justify a temporary departure from treaty obligations.

'This is where the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) come into play. Given that the ILC Articles on Responsibility of States for Internationally Wrongful Acts have arguably achieved the status of customary international law, the doctrines of necessity (Article 25), self-defence (Article 21) and countermeasures (Article 22) further support India’s stance. This approach provides India with flexibility in such matters of suspension or termination, as in the recent IWT fiasco. Yet, it must be remembered these defences will be invoked as and when arbitration commences to justify the deviation from the Treaty.

Under the treaty, there remains not a morsel of doubt that such unilateral suspension is not permitted. One can argue that it is not expressly barred. At the same time, it is not expressly allowable either. Even though one can rely upon the VCLT to justify the suspension, albeit unilateral, the issues of VCLT are hard to miss. Yet the counterargument isn't incomprehensible. As one can argue, on the first issue, if VCLT arguably represents principles of customary international law (CIL)-which has been acknowledged by the Indian court in AWAS Ireland v. Directorate General of Civil Aviation and has been invoked by India in the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) arbitration. This dilutes the non-signatory argument.

On the second issue, while Article 4 of the VCLT establishes that the Convention does not apply retroactively to treaties concluded before its entry into force, the provisions of the VCLT may nevertheless apply if they reflect customary international law. In such cases, these rules would govern treaties concluded by States Parties prior to the VCLT’s entry into force (see Botswana v. Namibia  [1999] ICJ Rep 1045, para 18; and Democratic Republic of the Congo v. Rwanda (Jurisdiction and Admissibility) [2006] ICJ Rep 6, para 125).

Despite this, the question still lingers on an ‘if’. 'If' VCLT does reflect customary international law, then the workaround is that treaties such as IWT (which are pre-1969) can be within the ambit of VCLT. The first stage hurdle is to make VCLT applicable to India.

While the Indian prime minister once remarked that ‘blood and water cannot flow together’, India's so-called ‘in abeyance’ or suspension raises far more nuanced questions under international law. It is more than the IWT not providing an exit clause. It strikes at the very root of the interpretation of treaties with India skating on thin ice.

While it can be argued that the decision to place IWT in ‘abeyance’ is not a violation but a legal decision under the aegis of customary international law, the deployment of the diplomatic strategy of keeping IWT in ‘abeyance’ seems to play in a grey area of the treaty. Though seemingly innocuous, it brews a recipe for disaster in its wake, with potentially serious consequences for both sides.

Ayan K. De is an Indian-qualified lawyer and international disputes lawyer with 12 years of experience, specialising in domestic and international arbitration (treaty and commercial) along with commercial litigation.