India, the Indus Waters Treaty, and the Limits of Good Faith

The terror attack in Jammu and Kashmir on April 22, 2025, reportedly perpetrated by militants operating from Pakistani territory, has reopened a long-familiar fault line in South Asian politics. Yet the Government of India’s response this time has taken a legally significant turn. In an official communiqué to Pakistan, New Delhi announced that the Indus Waters Treaty (IWT) would be placed in “abeyance”, citing the deterioration of bilateral trust and the failure of the Pakistani state to meaningfully address India’s long-standing security concerns.

While the notion of abeyance does not have an explicit place in the law of treaties, India’s decision cannot be dismissed as a simple breach. The IWT has long been viewed as a paragon of depoliticised technical cooperation. It has remained operational even during full-scale armed conflict. Its suspension signals an inflexion point, even in a partial or procedural form. This moment is significant both for South Asian water diplomacy and for the broader practice of international law.

This post critically examines India’s position through four interrelated frames. It begins by analysing the legal architecture of the IWT and India’s invocation of procedural continuity. It then turns to customary international law, particularly concerning rebus sic stantibus and necessity doctrines. The third section considers the framework of state responsibility and the question of countermeasures. The fourth addresses the continuing obligations of India as an upper riparian state, including emerging considerations drawn from international human rights law. Together, these threads reveal the strengths and vulnerabilities in India’s legal position.

I. Treaty Architecture and the Procedural Logic of Abeyance

The IWT, signed in 1960 and brokered with the support of the World Bank, is often described as one of the world’s most resilient transboundary water-sharing agreements. It divides the six rivers of the Indus system between the parties, with India receiving exclusive rights over the eastern rivers and Pakistan over the western. It also establishes a robust institutional framework, including a Permanent Indus Commission and detailed notification, dispute resolution, and technical cooperation provisions.

Notably, the treaty contains no clause allowing for suspension, termination, or unilateral withdrawal. Its language is prescriptive and rigid, reflecting Cold War-era assumptions about water security and interdependence. Against this backdrop, India’s invocation of “abeyance” does not fall neatly within the treaty text.

Instead, India appears to rely on a practice of informal non-performance. This is a form of state conduct recognised in legal scholarship as a technique for expressing dissatisfaction with treaty performance without breaching or denouncing the treaty outright. In this view, abeyance is not a violation but a form of political signalling. It indicates a suspension of implementation pending re-engagement. This practice is not without precedent. States have, over time, used mechanisms such as retorsion, temporary derogation, or procedural withholding to recalibrate treaty obligations while avoiding formal rupture. For instance, Russia suspended its participation in the Treaty on Conventional Armed Forces in Europe (CFE) in 2007, citing altered security conditions. Although it formally withdrew in 2015, the interim suspension illustrates how states may recalibrate obligations without invoking formal exit clauses.

India’s position also rests on procedural history. Since at least 2001 and more systematically since 2023, it has initiated requests to revisit aspects of the IWT through the mechanisms provided in the treaty itself. These efforts reportedly went unanswered by Pakistan. Seen in this light, the recent move is not a rupture but the culmination of a continuum.

II. Customary International Law: Rebus Sic Stantibus, Necessity, and Treaty Practice

Where treaties offer no path to recalibration, states may invoke general international law. The doctrine of rebus sic stantibus, or fundamental change of circumstances, provides one such possibility. Codified in Article 62 of the Vienna Convention on the Law of Treaties (VCLT), it reflects the idea that a treaty may lose its binding force if the conditions under which it was concluded have radically altered. Although India and Pakistan are not parties to the VCLT, the principle has customary roots and is not dependent on codification.

The threshold for invoking rebus sic stantibus, however, is exceptionally high. The change must be unforeseen, fundamental, and radically transform the extent of obligations still to be performed. While this principle has been considered in cases such as the Free Zones of Upper Savoy before the PCIJ, its successful invocation in modern practice remains rare.

India’s position may resonate more persuasively if reframed not as a claim to terminate or withdraw, but as a temporary non-performance justified by necessity. Under Article 25 of the Articles on State Responsibility (ARSIWA), a state may lawfully refrain from performing it international obligations if it faces a grave and imminent peril to an essential interest, and if no other lawful means are available. This doctrine, though narrow, is more compatible with the concept of abeyance than with full-scale treaty exit.

In invoking necessity, India would need to demonstrate that continued implementation of the IWT, under prevailing conditions, risks its internal security or undermines its essential interests. The measure’s proportionality and temporariness would be crucial to sustaining this claim.

Comparative state practice lends India some support, albeit indirectly. Examples include China’s early twentieth-century denunciation of the Sino-Belgian treaty, the US suspension of the Load Line Convention(1930) in 1941 on the basis of changed circumstances, and the European Court of Justice’s decision in A. Racke GmbH & Co v Hauptzollamt Mainz (1998), which addressed the termination of a cooperation agreement between the EEC and Yugoslavia in light of a fundamental change in circumstances. While these precedents do not concern water-sharing treaties, they reflect a broader pattern of states and courts acknowledging that treaty obligations may be reassessed in response to shifting geopolitical or humanitarian contexts. There is, however, a need to exercise caution in drawing analogies.

The Racke decision concerned the termination of an external economic agreement in response to political and humanitarian developments in the Balkans. It did not involve a bilateral treaty governing sovereign rights over natural resources. Unlike such treaties, cooperation agreements like the one in Racke pursue broader political aims and may be more amenable to unilateral suspension in exceptional circumstances. Its relevance to India’s position must therefore be assessed with care.

III. State Responsibility, Countermeasures, and the Limits of Good Faith

A further legal justification may be found in the framework of countermeasures under the law of state responsibility. Article 22 of the ARSIWA allows a state to adopt measures that would otherwise be unlawful, provided they are taken in response to a prior internationally wrongful act by another state, are proportional, and are aimed at inducing compliance.

India could argue that Pakistan’s failure to prevent or restrain actors involved in cross-border terrorism constitutes a continuing breach of its international obligations. In that light, the abeyance of the IWT is not retaliatory, but a calibrated countermeasure. It remains reversible, proportionate, and directed at restoring a functional bilateral framework.

At the same time, the limits of this argument must be acknowledged. While good faith is a foundational principle in the law of treaties, its application must be grounded in a discernible connection between the conduct and the treaty relationship itself. India’s claim rests on the assertion that Pakistan’s support for terrorism has eroded the cooperative conditions necessary for implementing the IWT. Yet the causal link between those security concerns and a highly technical water-sharing regime remains open to scrutiny. The IWT was explicitly designed to operate independently of political or military tensions. To rely on good faith as a basis for abeyance, India must demonstrate that Pakistan’s conduct has undermined bilateral trust in general and rendered the treaty’s practical operation untenable.

There is also a principled objection that must be addressed. Critics may argue that invoking terror attacks to suspend cooperation in a distinct, functional regime amounts to politicising a depoliticised treaty. The IWT has long been upheld precisely because of its insulation from bilateral antagonisms. Any perceived departure from that norm invites reputational risk and raises concerns about precedent in other technical or resource-sharing regimes.

IV. Upper Riparian Duties and Human Rights Considerations

Even where treaty obligations are suspended, states retain responsibilities under customary international law. As an upper riparian state, India is bound by the core principles of international watercourse law, equitable and reasonable utilisation, the obligation not to cause significant harm, and a duty to cooperate. These principles are codified in the 1997 UN Watercourses Convention, which India has not ratified but reflects customary norms.

Suppose India’s abeyance of the IWT significantly reduces water flow or disrupts downstream access to irrigation, drinking water, or sanitation. In that case, this may give rise to legal or at least normative concern. The obligation is not one of strict liability, but of reasonable conduct. India would be expected to take steps to avoid disproportionate or avoidable harm to civilian populations.

A more recent development in this context is the growing intersection of international water law and human rights law. The UN General Assembly Resolution 64/292 recognises the right to water as essential to realising other rights, including life and health. While this right operates primarily within the vertical relationship between state and citizen, there is a developing view that transboundary water governance must also reflect humanitarian considerations.

Acknowledging these dimensions does not undermine India’s position. Rather, it enhances it. By showing that its actions are proportionate, transparent, and reversible, and by continuing to observe its broader legal responsibilities as an upper riparian, India can distinguish its conduct from coercive hydro-politics and reinforce its standing in regional and international forums.

Conclusion: Between Legal Doctrine and Strategic Reality

India’s decision to abeyance the IWT occupies a legal grey zone. It is neither a breach nor a clear-cut application of existing treaty provisions. It is best understood as part of a broader continuum of state practice, where performance of treaty obligations is temporarily adjusted in response to fundamental shifts in the political or security environment.

Yet this flexibility must be exercised with care. The law of treaties does not prohibit such measures but conditions them through principles of necessity, proportionality, and good faith. India’s legal case is strongest when it rests not on a simple appeal to frustration or reciprocity, but on a principled account of how continued treaty performance has become untenable, and how its response remains grounded in legal restraint.

In the end, the legitimacy of India’s approach will not depend solely on doctrinal precision but on its ability to navigate the space between legal justification and moral responsibility. The abeyance of the IWT is a legal event. It is also a political signal. How that signal is received and how the humanitarian and ecological consequences are managed will shape the future of transboundary water cooperation in South Asia for years to come.