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India’s “abeyance” of the Indus Treaty signals shifting tides: Can treaty law be used as a tool of strategic pressure without breaching international legal commitments?
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In the aftermath of the Pakistan-sponsored terrorist attack on civilians in Pahalgam, the Indian government announced that the Indus Water Treaty, 1960 (IWT) would be held in “abeyance” with immediate effect. The key water-sharing treaty will remain suspended “until Pakistan credibly and irrevocably abjures its support for cross-border terrorism.”
The IWT has been one of the most resilient political agreements between India and Pakistan, surviving multiple wars and extended periods of hostility. However, India’s move to place the treaty in ‘abeyance’ marks a serious escalation, as it breaks from a long-standing tradition of insulating water-sharing cooperation from broader political and military tensions. Yet, this is not a retreat from international law—it is a strategic legal statecraft. The language of ‘abeyance’ is deliberate. India has neither withdrawn from the treaty nor altered river flows, but paused procedural cooperation—using law, not water, for leverage. This is legal diplomacy, where restraint amplifies impact.
India’s unprecedented move has ignited several complex legal questions. This article focuses on two key issues: firstly, whether holding a treaty ‘in abeyance’ recognised in international law; secondly, whether ‘abeyance’ can be justified as a countermeasure against wrongful acts. These questions form the basis of this article’s analysis.
The term ‘abeyance’ refers to a state of temporary disuse or suspension, but it is not a legally recognised concept under international treaty law. Neither the IWT nor the Vienna Convention on the Law of Treaties, 1969 (VLCT) provides ‘abeyance’ as a basis for halting or suspending treaty obligations.
The IWT does not have a provision allowing for unilateral suspension. Instead, Article XII (4) of the IWT states the treaty “shall continue in force until terminated by a duly ratified treaty concluded for that purpose”. Similarly, under the VLCT, a treaty may only be suspended or terminated based on specific grounds, including material breach (Article 60), impossibility (Article 61), and fundamental change (Article 62), and usually requires the parties’ mutual consent (Article 57). The VLCT does not allow a treaty to be unilaterally placed on hold (or in abeyance) without invoking any grounds mentioned under Articles 60–62.
The VCLT offers no guidance on whether a treaty may be suspended or modified during conflict or heightened political tensions.
Furthermore, the VLCT does not address the effect of armed conflicts, war, or hostilities on treaty obligations. The International Law Commission deliberately excluded such scenarios from the VLCT’s scope, leaving them to be governed by customary international law. Article 73 of the VLCT reflects this approach, stating, “Convention shall not prejudge any question that may arise regarding a treaty from the outbreak of hostilities between States”. Accordingly, the VCLT offers no guidance on whether a treaty may be suspended or modified during conflict or heightened political tensions.
While India is not a signatory to the VLCT, it has not rejected its principles. In practice, India has consistently followed many of its rules, either as an application of customary international law or by adopting its convenient guidelines. For instance, India invoked VLCT-based principles in the Bay of Bengal Maritime Boundary Arbitration, and Indian courts have similarly embraced them.
Although not formally bound by the VCLT, India has implicitly endorsed its normative framework, including the principle of pacta sunt servanda—that treaties must be honoured in good faith. However, this principle is not absolute; it coexists with doctrines such as countermeasures, necessity, and state sovereignty, which may, in exceptional cases, justify a temporary departure from treaty obligations. This approach provides India with flexibility in its treaty conduct, particularly in matters of suspension or termination, as seen in its recent approach to the IWT.
There is no shortage of commentary asserting that ‘abeyance’ has no formal grounding under either the IWT or the VLCT. Critics point out, correctly, that neither instrument provides an explicit mechanism for placing a treaty on hold. However, such readings often miss the deeper point—the IWT, like many Cold War-era agreements, was drafted specifically for geopolitical context and does not account for the nature of contemporary threats, especially asymmetric and persistent acts of cross-border terrorism that undermine the very foundation of cooperative engagement.
India’s decision to place the treaty in ‘abeyance’ must be understood not as a violation but as a reasoned legal position anchored in customary international law and emerging doctrines of state responsibility.
The IWT is silent on how states should proceed when procedural cooperation is used as a tool of obstruction or when treaty mechanisms are manipulated by one party to stifle the other's lawful development. In this legal vacuum, India’s decision to place the treaty in ‘abeyance’ must be understood not as a violation but as a reasoned legal position anchored in customary international law and emerging doctrines of state responsibility.
India has not withdrawn from the treaty; nor has it diverted water flows or breached allocation quotas—indeed, it lacks the infrastructure to do so on the scale required to disrupt downstream use. Rather, India has temporarily suspended procedural cooperation, i.e. participation in dispute resolution forums, joint mechanisms, and routine diplomatic engagements tied to treaty operation. This is not abandonment; it is a calibrated form of legal restraint, undertaken in the face of a long-standing, unaddressed wrongful state-sponsored act of terrorism that strikes at the core of trust on which the IWT was premised.
Thus, while ‘abeyance’ is not a term in treaty law, its invocation in this context reflects a novel but not unlawful response, drawing legitimacy from customary doctrines such as countermeasures and necessity. These principles allow a state to temporarily suspend obligations in proportionate response to a serious breach by the other party, provided such action remains reversible and seeks a return to lawful cooperation.
While the IWT contains no explicit clause allowing abrogation, Article 62 of the VCLT provides that a treaty may be terminated or withdrawn if there has been a fundamental change of circumstances, as noted by India’s former Indus Water Commissioner. India has invoked this provision in its communication to Pakistan’s Ministry of Water Resources, citing “sustained cross-border terrorism” as a fundamental shift that has created “security uncertainties” undermining the very basis on which the Treaty was concluded. In this context, placing the IWT in ‘abeyance’ can rightly be interpreted not as a breach, but as a lawful countermeasure.
Under international law, Countermeasures are unilateral, non-forcible acts taken by an injured State in response to a breach of international law by another State. Their purpose is to induce compliance or secure reparation for the wrongful act. Specific conditions govern countermeasures: they must be proportionate, reversible, and targeted at restoring lawful conduct.
Under international law, Countermeasures are unilateral, non-forcible acts taken by an injured State in response to a breach of international law by another State.
India’s action — suspending procedural cooperation while maintaining river flows — appears to adhere to these criteria. It is a measured, temporary response to an internationally wrongful act, undertaken within a framework of legal restraint. As such, ‘abeyance’ is a valid countermeasure, grounded in state responsibility and necessity doctrines, rather than a repudiation of India’s treaty obligations.
There are limited but notable examples of States suspending or placing treaty obligations in response to extraordinary circumstances. For instance, in 1986, the United States (US) suspended its security obligations toward New Zealand under the 1951 Australia-New Zealand-US Security Treaty, after New Zealand decided to ban the US nuclear-armed ships by declaring a nuclear-free zone. Regionally, in the 1970s, India’s unilateral suspension of water-sharing arrangements with Bangladesh effectively halted transboundary water flows until the 1977 Farakka Agreement was negotiated. More recently, in 2023, the US “lawful countermeasures” under New START, halting data-sharing but maintaining warhead limits – a partial suspension, reversible legal response to Russian non-compliance, is similar to India’s current approach on the IWT.
Unlike routine diplomatic measures such as trade sanctions and travel bans, pausing a water-sharing treaty is unprecedented, with the implicit hope that the treaty could be revived if conditions change.
These examples of holding treaties in ‘abeyance’ are rare and context-specific. States have occasionally suspended treaty obligations as a form of political pressure. In the IWT case, India is breaking new ground. Unlike routine diplomatic measures such as trade sanctions and travel bans, pausing a water-sharing treaty is unprecedented, with the implicit hope that the treaty could be revived if conditions change.
In this light, India’s action occupies a legal grey zone that international law acknowledges in practice, if not in codified text. It reflects a measured use of legal tools—not to destabilise treaty regimes, but to reassert the foundational preconditions for their viability, i.e. mutual good faith.
Far from undermining international law, India is asserting its rights through it, marking a shift from passive treaty compliance to active treaty stewardship. In sum, India’s invocation of ‘abeyance’ is not a rejection of its international obligations, but a strategic legal signal—a reminder that treaty regimes are not immune to geopolitical realities, and that credibility and reciprocity are indispensable to their endurance.
Nishant Sirohi is a Law and Society Fellow at Transitions Research.
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Nishant Sirohi is an advocate and a legal researcher specialising in the intersection of human rights and development - particularly issues of health, climate change, ...
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