Author: Ayan K. De*
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Introduction
“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––a place which has been now converted into a graveyard on 22 April 2025. This backdrop has led to the suspension of the Indus Water Treaty (IWT) as India retaliates, albeit diplomatically. Apart from its water consequences on Pakistan, it raises a far more important question: Whether India could have done this, in the first place. Accordingly, the author argues that India walks a fine line––where arguments galore both for and against while clarifying certain misconceptions that have crept in.
Chequered treaty
The IWT needs no separate introduction. For 64 years the treaty has been at the forefront of Indo-Pak diplomacy and a tug of war. Previously, Pakistan has invoked the 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 the IWT followed by the official notification. This raises a fundamental question: Can India do so? In the following sections, the author dissects the issue of such suspension and its potential fallouts.
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 (Black’s 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 Article 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,’ i.e., in suspension, India has indeed exposed the vulnerable veins of Article IX. Given the IWT’s history, it will not be surprising if Pakistan, once again, invokes Article IX to take India before the PCA.
VCLT: 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 a material breach (Article 60), impossibility of performance (Article 61), and a fundamental change of circumstances (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. It encapsulates the doctrinal principle of rebus sic stantibus permitting “suspending the operation of the treaty” in the case of a “fundamental change in circumstances.” The preamble of the 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 the 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 v. Slovakia) held that even political and economic shifts may not be closely connected to the object and purpose of the treaty to justify termination (para. 104). 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 concerned treaty; it has to be judged objectively. In the present case, the IWT does not contain any provisions or indication, express or implied, that acts of conflict or aggression, which are not per se violations of the provisions of the treaty, may constitute essential conditions and justify suspension. The only possible justification could be Article 60(3)(b) to argue that Pakistan’s act seriously jeopardizes 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, the IWT is predates 1969 – how and to what extent the VCLT can be applied will be a huge question by itself.
Regardless of the controversy justifying the suspension of the IWT, India’s obligation under international law remains. International law imposes under VCLT (Article 72) and the law on state responsibility under the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) (Article 49(3)) that measures taken during the suspension or countermeasure are reversible and allow for the resumption of the performance of the relevant obligation.
Referral to ICJ and ICC: The shrouded misconceptions of international law
From another angle, it has been suggested that Pakistan can involve the International Court of Justice (ICJ). There seems to be a systemic misconception of the applicability of international law. Both India and Pakistan, though ipso facto admitting the 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 that Pakistan will be able to invoke the ICJ’s jurisdiction against India and vice versa. The only way to challenge the unilateral suspension is via Article IX of the IWT.
Yet another misconceived position was advocated elsewhere by calling for a referral of the matter to the International Criminal Court (ICC). This also suffers the same fate as above, even more bluntly. This is for the simple reason that neither India nor Pakistan is a member of the ICC. Neither State has ratified the Rome Statute and neither has accepted the ICC’s jurisdiction. For the matter to be referred to the ICC, India will have to conditionally accept the jurisdiction of the ICC under Article 12(3) of the Rome Statute and Article 12 has to be read with Rule 44 of the Rules of Procedure and Evidence. A combined reading suggests that the ICC’s jurisdiction tends to be broad and thus a selective declaration limited to a particular incident may not be allowed. The Pahalgam incident, would arguably fall under the murder category of crimes against humanity (Article 7(1)(a) of the Rome Statute). By its very definition, crimes against humanity have to be widespread or systematic (Article 7(1)). All this makes it difficult to keep a declaration very limited. Furthermore, the ICC Trial Chamber has provided a detailed clarification on this issue in Prosecutor v. Laurent Koudou Gbagbo, No. ICC-02/11-01/11-212 (Pre-Trial Chamber I, 15 August 2012, para. 59), wherein the Court held that Article 12(3) read in conjunction with Rule 44 limits States’ discretion in framing the situation that may be investigated by the Court and the Court cannot be used ‘opportunistically.’
Even if, hypothetically, India succeeds in limiting their declaration, doing this will be a legal, political and diplomatic nightmare. This will expose India to possible counter-cases from other ICC members. The other way is for the United Nations Security Council (UNSC) to refer the matter under Article 13 of the Rome Statute. This too poses veritable problems. A suggestion of referring the matter to the UNSC, where Pakistan has a seat currently (and China has a veto), would thus be an imprudent one. A plain reading of UNSC Press Statements issued on the terrorist attack on a Jaffar Express train, and the terrorist attack on Pahalgam is enough to clarify the council’s stance currently. Thus, in the current political climate, a UNSC resolution referring to the Pahalgam attack on the ICC is also a non-starter.
Workaround
The alternative workaround argument is not 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 ARSIWA come into play. Given that the ARSIWA 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 that 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––such unilateral suspension is not permitted. One can argue that it is not expressly barred. At the same time, it is not expressly permitted either. Even though one can rely upon the VCLT to justify the suspension, albeit unilateral, the issues of the VCLT are hard to avoid. Yet the counterargument is not incomprehensible. As one can argue, on the first issue, if the VCLT arguably represents principles of customary international law, 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 enumerates its non-retroactivity. If, however, the VCLT provisions reflect established customary law, these rules apply to treaties concluded by State parties before the entry into force of the VCLT (see Botswana v. Namibia, para. 18; and Democratic Republic of the Congo v. Rwanda (Jurisdiction and Admissibility), para. 125).
Despite this, the question still lingers on an ‘if’ – that is the million-dollar question. ‘If’ the VCLT does reflect customary international law, then the workaround is that treaties such as the IWT (which are pre-1969) can be within the ambit of the VCLT. The first stage hurdle is to make the VCLT applicable to India, and that is based on the ‘IF’ -ness of the VCLT reflecting customary international law.
Conclusion
While the Indian Prime Minister once remarked that “blood and water can’t flow together,” India’s so-called ‘in abeyance’ i.e., suspension, raises far more nuanced questions under international law. It is more than the IWT not providing an exit clause. It is deeper. It strikes at the very root of the interpretation of treaties and the surrounding geopolitical environment with India skating on thin ice. On the one hand, it can be argued that the decision to place the IWT in ‘abeyance’ is not a violation but a legal decision under the aegis of customary international law. Yet, on the other hand, the deployment of the diplomatic strategy of keeping the 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 a Partner, Head of International Arbitration, Disputes and Investigations at Delhi-based Disputes Boutique law firm– AKS Partners. His practice focuses on international commercial and investor-state arbitration, cross-border litigations, commercial litigation and public international law matters. A King’s College London Alumnus, he has previously worked with a tier-1 law firm in India, before shifting base to London, where he worked in two big international law firms in the field of international commercial arbitration, investor-state arbitration and public international law. He regularly teaches and writes on issues of international arbitration, public international law and investment arbitration. In addition, he also serves as the regional contributor for England and Wales for Young ITA. Currently, he serves as the Visiting lecturer to National Law University, Delhi, India wherein he has designed and teaches a course on ‘Investment law and investor-state arbitration: Practice and Procedure -A practitioner’s guide’.