Unilateral Abeyance: India's Strategic Pause on the Indus Water Treaty in International Law

On April 23, 2025, following a deadly attack in Pahalgam, Kashmir, India announced its decision to hold the Indus Water Treaty (“IWT”) “in abeyance.” This historic treaty has survived three wars between India and Pakistan and multiple skirmishes over sixty-five years, and was once regarded as the world’s most successful water-sharing efforts.

IWT, signed in 1960, was a result of 9 years of heated negotiations between the two countries, concluded with the help of the World Bank, also a signatory to the treaty. IWT provides a mechanism for co-operation and information exchange between the two countries regarding the use of their river waters. It allocates the Western rivers to Pakistan and the Eastern rivers to India [IWT, Articles I (5)&(6); II; III].

History of The IWT

Throughout history, water access has been fundamental in shaping the destinies of states. Rivers defying political borders have been the cause of rivalries. [See: China-India over the Brahmaputra River; Ethiopia-Egypt: Grand Ethiopian Renaissance Dam and the Nile River; Turkey-Iraq: Tigris River.]

Power asymmetries, historical backgrounds and emerging environmental concerns outline the shape of such treaties. This fragility is most starkly visible in the British-Indian partition. The partition carved new boundaries across the streams of Punjab’s rivers. The Radcliffe Award hastily redrew maps but left unresolved the fate of streams flowing across the new territories. Key canal headwaters were left to India, where the downstream canal systems irrigating large parts of Pakistan remained dependent upon these upstream flows. This imbalance turned into confrontations, signifying that this water conflict was not a mere technical dispute but a symbol of unfinished business of the partition. This marked the background for IWT.

Co-operation, Dispute Resolution, and Termination

IWT outlines a three-tiered dispute resolution process to facilitate cooperation and address any disagreements.

First, it provides for a “Permanent Indus Commission,” a mechanism for co-operation and information exchange [IWT, Article VIII]. The Commission - comprised of commissioners of each country - decides on any “questions” concerning the “interpretation or application” of IWT, including deciding any instance of its breach [IWT, Articles VIII(3)(ii) and Article IX(1)].

Where the Commission does not reach any agreement, IWT deals with such “differences” by reference to a Neutral Expert, as appointed either by consensus or by the World Bank [IWT, Article IX(2); Annexure F].

Lastly, IWT allows “disputes” to be referred to an ad-hoc arbitral tribunal.

Interestingly, even though IWT envisages every scope of settling questions, differences, and disputes and outlines the rights of the two countries, it does not allow any country to unilaterally withdraw from the treaty or put it on hold. As per the Final Provisions, the Treaty can either be modified or terminated only by a duly ratified treaty concluded between the two countries.

As seen above, India’s decision to hold IWT in abeyance is not a right it enjoys under IWT. Therefore, making it imperative to analyze whether it otherwise enjoys such a right in International Law (“IL”).

Abeyance in International Law

IL rarely has seen the use of the word “abeyance,” what has been commonly seen in international practice is “suspension.” In the absence of any direct provision in IWT on its suspension, states may draw their rights under the Vienna Convention on the Law of Treaties (“VCLT”) or Customary International Law (“CIL”).

VCLT, which came into force in 1980, applies only to treaties concluded after 1980 [VCLT, Article 4], between states parties to the VCLT [VCLT, Article 1]. IWT came into force in 1960, prior to the enactment of the VCLT. Furthermore, India is not a signatory, whereas Pakistan has failed to ratify the VCLT. Therefore, the VCLT does not directly apply to IWT. Notwithstanding this, multiple provisions continue to apply as CIL.

VCLT, in Section 3, lists out the grounds available for parties to terminate or suspend the operations of a treaty. Article 60, which as per the ICJ is reflective of CIL, allows the suspension or termination of any treaty on grounds of its material breach, including the “violation of a provision essential to the accomplishment of the object or purpose of the treaty.” [VCLT, Article 60(1)&(2)]. VCLT expressly bars the severance of diplomatic relations between the countries as grounds for suspending a treaty [VCLT, Article 63].

IWT does not contain any pre-condition of friendly relations between the countries or a national security clause. The Preamble to IWT merely recognizes that it was entered into in a spirit of goodwill and friendship. However, this clause does not satisfy the conditions of Article 60. To a large extent, this can be seen as a lapse in negotiations. At least on the part of India, the negotiators could have added a national-security clause given that IWT was concluded with fresh scars from the partition and ongoing tussles after the first Indo-Pak war of 1947-48.

The only limited ground under which India can claim refuge is Article 62, which accounts for a Fundamental Change in Circumstances (“FCC”) or rebus sic stantibus. Its status as CIL is now an accepted position, recognized by the ICJ, scholars, and states. [France in the Free Zones case; China’s termination of the Sino-Belgian Treaty of 1865; US’s withdrawal from the International Load Lines Convention of 1930].

In its official letter to Pakistan on April 24, 2025, Indian water resources secretary has cited FCC (demographic shifts, clean energy needs, and “changes in assumptions that shaped the original needs”) as grounds for holding IWT in abeyance. FCC, which is grounds for both terminating and suspending a treaty, may be invoked where an unforeseen fundamental change has occurred in circumstances that existed at the time of treaty conclusion, the existence of which constituted an essential basis for the state’s consent. The International Court of Justice (“ICJ”) has imposed a high threshold for invoking FCC, holding that a change in political and economic conditions of a state are not good enough reasons, and advancements in environmental knowledge are not unforeseen.

In light of this, India’s security concerns may not meet the high threshold dictated by the ICJ. Given the strained relations between the two countries both before and after the IWT, it is difficult to argue that cordial relations constituted an essential basis for India’s consent to IWT or that such an incident was unforeseen.

India has been displaying concerns regarding IWT’s provisions, the demographic growth since 1960 and a parallel increase in water consumption. Since 2023, India has furnished two notices seeking a re-negotiation of the terms of the IWT. These reasons, which manifest excessive obligations and undue hardships, may by themselves be argued as FCC.

Can India unilaterally withdraw from IWT?

The Articles on the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) precludes the wrongfulness of non-performance of a bilateral obligation when the said measure constitutes a valid “Countermeasure.” [ARSIWA, Articles 22 & 49]. Such countermeasures can be undertaken to ensure compliance with international obligations by the wrongful state, so long as it does not amount to a use of force.

India has displayed its intention to hold IWT in abeyance until Pakistan credibly and irrevocably abjures its support for cross-border terrorism. International terrorism has been recognized to constitute a violation of use of force. [UNSC Resolution 1373, S/Res/1373, 1 (Sept. 28, 2001); UNSC Resolution 1368, S/Res/1368, 1 (Sept. 12, 2001).]

For India to argue lawful countermeasure, it must establish that such terrorist activities are attributable to Pakistan [ARSIWA, Article 2(1)], whereby the terrorists were either acting on its instructions, direction or control [ARSIWA, Article 8]. The threshold imposed by the ICJ for attribution is a high requirement of “effective control". India has argued that Pakistan is home to several terror outfits, and has historically assisted these organizations. It can also claim that by patronizing terrorism, Pakistan is violating its international obligation to not tolerate terrorist acts within its territories [United Nations General Assembly Resolution 2625].

Therefore, India’s decision to hold IWT in abeyance is a proportionate countermeasure to ensure compliance by Pakistan with its international obligations to not support terrorism.

In response to India, Pakistan has reportedly declared any move of disrupting water supplies under IWT to be an “act of war.”

Pakistan’s available recourse under IWT includes invoking its dispute resolution clause while escalating the matter to an ad-hoc arbitral tribunal appointed by the World Bank. IWT does not provide jurisdiction before the ICJ, and India’s optional declaration to ICJ’s jurisdiction excludes disputes with Pakistan. Therefore, Pakistan has little scope to escalate the matter before the ICJ.

Pakistan may also treat India’s decision to hold the treaty in abeyance to constitute a breach of IWT, in the absence of any positive right allowing India to do so.

Apart from the breach of IWT, Pakistan may also argue a breach of CIL by India. The Convention on the Law of the Non-navigational uses of International Watercourses, emphasizes the obligation to cooperate and not cause significant harm to downstream users [Convention on the Law of the Non-navigational uses of International Watercourses, Article 7, A/51/49, May 21, 1997]. India’s decision to disrupt any waters, as an upstream nation, may be seen as a violation of this obligation. Both India and Pakistan are not members to this treaty. However, this “no-harm” principle has been widely recognized as a CIL obligation on upstream countries [Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, ¶29].

Unilateral termination of water-sharing treaties is rarely seen in IL. During the Nile or the Jordan dispute, despite armed conflicts, sovereign players chose negotiations over abrupt withdrawals or termination of treaties.

More than 80% of Pakistan’s agriculture depends on the waters of the Indus basin. The real impact lies in the uncertainty around India’s decision and, resultantly, the water flow, which holds the capacity to severely undermine Pakistan’s primarily agrarian economy. Therefore, conflicts and insecurity around IWT are only bound to escalate.

India’s decision to hold IWT in abeyance also invites renewed debates around the attribution of terrorist activities by non-state actors to the states, and countermeasures by the affected state in response. In turn, Pakistan could undertake either diplomatic discussions with India to renegotiate the terms of IWT or escalate the matter before the Security Council.

About the authors: Anubhab Sarkar is the Managing Partner at Triumvir Law.

Sakshi Singhania, a final year student at West Bengal National University of Juridical Sciences (WBNUJS), provided assistance. Singhania has received a PPO and will be joining Triumvir Law in 2026.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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