Indus Water Treaty: India’s ‘abeyance’ decision may not stand the legal test

While India’s decision to put the Indus Water Treaty in ‘abeyance’ might sound a deft strategic move, it may not be legally tenable going by the fine print of the Treaty

India’s decision to put the Indus Water Treaty (IWT) with Pakistan on ‘abeyance’ soon after the terror attack in Pahalgam last month was seen as a potent strategic move to apply pressure on Pakistan. Some commentaries that appeared in the national media seemed to contend that India was well within its rights to take such a unilateral decision on what is a bilateral treaty. However, a close look at the IWT shows limited space for exercising this right, besides the decision being susceptible to challenge, viz, various statutes under the International Law. On the other hand, putting the Treaty on abeyance for the long term, besides the operational issues, could also deny India the opportunity to gain goodwill with the Pakistani people, who are increasingly resentful of the Pakistani Army and the political establishment.

Text page image: Indus at Skardu, photo by Akbar Khan Niazi

Banner image: Indus near Leh, photo by Kenny OMG

On 22 April 2025, 26 people were killed in a gruesome terror attack in Pahalgam, Jammu & Kashmir. On 23rd April, India announced that it shall hold the Indus Waters Treaty, 1960 (IWT) in “abeyance” until Pakistan stops promoting cross-border terrorism.

The IWT is a treaty signed by India and Pakistan for the sharing of the waters of the Indus River and its tributaries. Negotiated by the World Bank (to which it is also a signatory under the name of the International Bank of Reconstruction and Development, a key part of the World Bank Group), the Treaty was signed by then Prime Minister of India, Jawaharlal Nehru and then President of Pakistan, Ayub Khan.

The Treaty's objective was to foster cooperation between the two countries. A Court of Arbitration was to be established to resolve any dispute. A neutral expert would be appointed to resolve differences, and Commissioners from both sides would be appointed to the Permanent Commission on Indus Waters to answer questions.

There is also a unique procedure and provision for the resolution of disputes in the IWT under Article IX.

Image: Map of the Indus River Basin, illustration by Asha Malik

According to Article II of the Treaty, the Eastern rivers (Sutlej, Beas and Ravi) shall be available for the unrestricted use of India, while according to Article III, the Western rivers (Indus, Chenab and Jhelum) shall be available to Pakistan, with India being obligated to let them flow.

The IWT gives some rights to both the states on the usage of the Indus Waters. Apart from water sharing rights, it may be seen that India cannot stop the waters of the Western Rivers from flowing. India’s rights on the Western rivers extend to the usage of non-consumptive purposes, agricultural purposes as mentioned in Annexure C and the construction of the hydro-electric projects as mentioned under Annexure D.

Another important provision is to prohibit material change by the diversion of waters due to non-consumptive purposes. This was one of the contentions raised by Pakistan during the Indus Waters Kishenganga Arbitration case, along with the contention of drawdown flushing of waters, for removing the silt, below the dead storage.

It is pertinent to note that India has now used the word “abeyance,” which raises several questions.

Vienna Convention on the Law of Treaties

It may be said that the Vienna Convention on the Law of Treaties, 1969 (VCLT) does not apply to IWT as India is not a signatory, while Pakistan has signed but not ratified it.

However, the International Court of Justice (ICJ) in various judgements held that VCLT is the codification of Customary International Law and the same is not subsumed into treaty law once a treaty has been signed, but exists parallelly as held by the ICJ in Nicaragua v. United States. In the North Sea Continental Shelf cases, the ICJ held that non-parties to the VCLT should also follow it.

If argued that the IWT precedes the VCLT, the ICJ held, for example, in Botswana v. Namibia, that it still applies in the form of Customary International Law even if treaties have been signed preceding the VCLT, which is a source of law under Article 38 of the ICJ Statute. For a state not to follow a custom, it must fall under the ‘Persistent Objector Rule,' where it must object to the custom from its inception.

India has satisfied both the requisites of the Customary International Law, namely the behavioural part and the psychological part (opinio juris), as the Municipal Courts have recognised the VCLT.

The Supreme Court in Ram Jethmalani v. Union of India held that the VCLT has codified large parts of Customary International Law. In Wilmington Trust SP Services (Dublin) Limited v. Directorate General of Civil Aviation, the Delhi High Court has applied the articles of the VCLT, further establishing the importance of VCLT to Indian Municipal Law.

It is also important to note that the Supreme Court in T. N. Godavarman Thirumulpad v. Union of India has held that it is established law that any international convention not contrary to municipal law shall be deemed to have been incorporated into it.

Unilateral suspension of IWT: Is it legally tenable?

To make a State liable for the actions of a group of persons for wrongful acts under State responsibility, according to the ICJ in Nicaragua v. United States, it must be proved that they were acting under the directions of that State, and effective control must be proven.

In this case, the United States had sponsored the Contras, a resistance group which had been formed against the then-government of Nicaragua, controlled by another group named the Sandinistas. The ICJ ruled against the United States, saying that it breached its obligations under Customary International Law by using force, threat to use force and violating the sovereignty and territorial integrity of Nicaragua.

Though not easy to prove in this case, India can be confident that the same shall be done by its government.

Image: The frozen Indus River near Nyoma, photo by Vinay Goyal

That the term “abeyance” has been used instead of “suspension,” “termination,” or “withdrawal” is also pertinent to the matter. On a scrutiny of the Treaty, it becomes evident that there is no legal backing for the unilateral suspension in the IWT.

The text of Article XII (3) and (4) is as follows:

1. The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.

2. The provisions of this Treaty, or the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments.

Accordingly, the only way the Treaty can be terminated is under Article XII, where a new treaty may be negotiated, and this may be terminated in the new treaty. The word “abeyance” does not have legal backing as such, neither in the IWT nor in the VCLT.

According to Black’s Law Dictionary, abeyance means “temporary inactivity, suspension.” It may be argued that “abeyance” is being used in the sense of “suspension.”

For the same to be done unilaterally, the VCLT provides for it under exceptional circumstances under Articles 60 (Material Breach), 61 (Impossibility of Performance) and 62 (Fundamental Change in Circumstances).

In the instant case, it may be argued that unilateral withdrawal is being done under a fundamental change of circumstances. The question then arises whether cross-border terrorism constitutes a fundamental change in circumstances.

Pakistan may argue that the change occurred must be in direct relation to the Treaty and the Indus Waters, whereas India may argue that the fundamental change is due to the incessant threat to our national security, which has disturbed the notion of co-operation, the basis for the IWT, VCLT or any treaty.

It must be noted that the ICJ in the Gab?íkovo-Nagymaros Project case held that political changes do not constitute the basis for withdrawal of obligations from the treaty.

Countermeasures

Under the Draft Articles of the International Law Commission (ILC) on State Responsibility, counter-measures are provided.

According to Malcolm Shaw, a lawful measure taken by a state against another’s wrongful act is known as a counter-measure. It may be argued that abeyance is a form of counter-measure against the recent terror attack.

According to the ILC Commentary on the Draft Articles, the counter-measures taken should be directly connected to the wrongful act done. The direct connection of the terror act with the suspension of the Treaty, thus, falls in the grey area.

Image: A 1947 map of the Daobas formed by the Indus River system in the Punjab region, map by Fowler and Fowler

According to Judge Schwebel in the Gab?íkovo case, the ILC’s works may influence the ICJ.

In the same case, the ICJ held that the violation of general international law in other cases may justify taking counter-measures but not termination of the treaty. Proportionality is mentioned under Article 51 of the Draft Articles.

The Indian Government, for its part, contends that the IWT was kept in “abeyance” because of the terror attack in Pahalgam and shall do the same until Pakistan quits supporting cross-border terrorism.

A pertinent question arises: whether the stoppage of water is proportional to the terrorist act?

Jus Cogens – the normative imperative

Pakistan is largely an agricultural economy and is highly dependent on the Indus waters. Stoppage of water may affect it during the sowing season.

As reservoirs in India cannot hold large quantities of water for long, eventually water would have to necessarily left to flow, which may cause flooding, affecting the environment adversely in Pakistan.

In the Legality of Threat or Use of Nuclear Weapons case, the ICJ held that the protection of the environment is an obligation of the States.

Image: Houseboat of a family of the Mohana tribe who live by the Indus River, photo by Akhtar Hassan

“Abeyance” from the IWT by India, it could be argued, creates a hindrance to water sharing.

In the River Oder case, the Permanent Court of International Justice said that the preferential privilege of one riparian state in the legal rights over rivers is excluded.

Jus Cogens or Peremptory Norms of General International Law are norms accepted by the International Community to have a higher status in International Law, and according to the ILC Draft Conclusions on identification and legal consequences of peremptory norms of general international law, the peremptory norms are those where no derogation is possible under Conclusion 2.

Under Conclusion 5 of the same, the most important basis for these norms is Customary International Law, along with treaties and general principles of law, which may also form the basis.

Both environmental protection and water sharing are part of Customary International Law and may be argued to be a part of peremptory norms of General International Law (Jus Cogens). The withdrawal from the treaty and the subsequent actions, like the stoppage of water, would raise serious concerns about the environment and water sharing, thus going against Jus Cogens.

Abeyance hits population hard than the rogue regime

As per the United Nations Security Council Resolution 2249, terrorism in any form constitutes one of the most important threats to international peace and security; it cannot be tolerated. Counter-measure for the same is to strike back at the enemy.

The measure of putting the IWT at abeyance is not a viable solution, but escalates the matter. In retaliation, Pakistan has suspended the Shimla agreement of 1972.

Considering that water is an essential lifeline for people. Hence, it is not a constructive approach for States to have politics over them as it would ultimately affect ordinary people than the leadership of nations.

With the Indian political leadership having stated that the military action was only against the terror groups and not against the country (or its people), the decision to put the IWT in abeyance, which will directly affect the population of the neighbouring country, inherently contradicts the above statement.

The IWT, for that matter, could be seen as the most progressive agreement between India and Pakistan and stood the test of time. This was also largely because the Treaty was not treated as a political instrument, but for in a few instances. Politicising and weaponising the IWT thus sends across a message of adversity to the people of Pakistan.

This will not be the right strategy at this moment when there is palpable public resentment against the Pakistan Army and the political establishment among the Pakistani citizenry. Hence, in the interest of maintaining goodwill with the people of Pakistan, it will be in India’s national interest to withdraw the action on IWT.

Another reason why India should be concerned is that the Indus and many other rivers do not originate in Indian territory. Hence, a critical question arises: if China holds the kill switch of our waters, what would be our fate?

Our actions may set an example. Furthermore, any deviation from International Law would tarnish India’s image as a sincere, law-abiding State.

Image: The rivers know no boundaries

Many experts have said that the IWT has been unequal to India. To make the Treaty more favourable to India, as mentioned in Article XII (3), the Treaty may be changed from time to time, with India showing the willingness to renegotiate its provisions.

As per the IWT, India’s share of the Indus waters is 20 percent, whereas for Pakistan it is 80 percent. Thus, Pakistan is the substantial beneficiary of the IWT and affecting the Indus Water flow would detrimentally affect its agrarian economy.

While the Indian government might be confident that the measure amounts to penalizing the rogue military leadership, Pakistan’s crippling economic situation, and inherent smaller state identity, is likely to shape sympathy among its international benefactors.

As in the case of the International Monetary Fund bailout, it will not be surprising if an ICJ jury takes a sympathetic approach towards Pakistan on the IWT if the latter takes the matter to the international court. As shown earlier in this analysis, the fine print does not seem to favour the Indian decision.

Accordingly, it will be prudent for India to withdraw from the abeyance decision – ideally claiming that it does not want to put the Pakistan people in hardship – and seek to rectify the shortcomings in the IWT or seek a new treaty from a position of strength.

(Views expressed in this article are the author's own.)