Is India's suspension of the Indus Water Treaty a legal violation?

Introduction

Following a terrorist attack on civilians in Pahalgam, Kashmir, the Indian government announced that the Indus Water Treaty (IWT) would be placed on hold (abeyance). According to the statement, this important water-sharing agreement will be suspended ‘until Pakistan unequivocally and irreversibly rejects its support for cross-border terrorism.’

The Indus Water Treaty (IWT) has been one of the most resilient political agreements between India and Pakistan, remaining in force despite several wars and periods of prolonged tension. However, India's decision to place the agreement ‘on hold’ breaks with the tradition of isolating water-sharing cooperation from broader political and military tensions. This decision therefore signals a significant escalation in tensions between the two countries. Nevertheless, this move is not seen as a retreat from international law, but rather as a strategic legal state management move. The use of the term ‘suspension’ (abeyance) is deliberate. India has neither withdrawn from the agreement nor altered the river's flow, but has suspended the cooperation procedures. It has based this move on the law of water rather than water itself. This move is a strategic diplomatic move by India to create a strong perception of water scarcity (1). However, India's radical move has brought the international legal basis of the issue to the forefront. The first issue is whether ‘suspension’ of an agreement is recognised under international law; the second is whether ‘suspension’ can be justified as a countermeasure against unlawful acts.

‘Abeyance’ in International Law

The term ‘abeyance’ used in India's statement refers to a temporary suspension or halt. However, this concept is not legally recognised under international treaty law. Vienna Convention on the Law of Treaties, 1969 (VLCT), Article 5, regulates the suspension or suspension of treaty obligations in various articles, primarily Article 60.

Article 60 of the 1969 Vienna Convention on the Law of Treaties (VLCT) explains the ‘termination or suspension of a treaty as a result of a breach’ as follows:

1. A material breach of a bilateral treaty by one of the contracting parties entitles the other party to terminate the treaty or suspend its operation in whole or in part, invoking the breach as a ground for doing so.

The third paragraph of Article 60 further specifies that a material breach of a treaty consists of the following:

· The denial of the treaty in a manner inconsistent with its object or purpose

· The breach of a provision essential to the fulfilment of the treaty.

Article 67 of the Convention defines four different actions: ‘declaring a treaty invalid, terminating it, withdrawing from it, or suspending its operation’ (5). As can be seen here, the concept of suspension of treaties exists in international law. However, India used the term ‘abeyance’ in its statement.

India has chosen to suspend the Agreement without providing sufficient explanation, outside the concepts specified in the 1969 Vienna Convention on the Law of Treaties. This is because, in explaining this issue, it has used the term ‘abeyance’ (suspend) instead of ‘suspension’ (suspend) in the agreement, thereby seeking to distance itself from the binding nature of the Vienna Convention. As is well known, there are significant differences between ‘suspension’ and ‘abeyance’ in international law literature. Although both terms imply the temporary cessation or postponement of something, their legal contexts and consequences are quite different.

Suspension: In international law, particularly in the context of treaty law, it means to temporarily suspend the legal effects of a treaty. The legal conditions for this action are clearly regulated in Articles 57-60 of the Vienna Convention on the Law of Treaties.

• It may be based on the will of the parties or on certain legal grounds (e.g., fundamental breach).
• A suspended treaty temporarily loses its effectiveness but does not cease to exist.
• The treaty may be reinstated (revised).

For example, if a peace treaty is breached by one of the parties, the other party may suspend the treaty unilaterally.

Abeyance (Suspension/Dormant Status): This concept refers to a legal situation or right that remains undecided or uncertain. This term is frequently used in English civil law in the context of inheritance, titles, or property rights. However, it is not a technical term used in international law. It is more commonly used in political or practical language. Therefore, it does not produce any official legal consequences in codified areas such as treaty law.

There is no provision in the Vienna Convention or the IWT allowing for unilateral suspension. Instead, Article XII(4) of the IWT states that the treaty ‘shall remain in force until terminated in accordance with the procedure provided for in the treaty concluded for that purpose.’ Similarly, under the VLCT, a treaty may only be suspended or terminated on certain grounds, including material breach (Article 60), impossibility (Article 61), and fundamental change (Article 62), and generally requires the mutual consent of the parties (Article 57). The VLCT does not permit the unilateral suspension of a treaty without invoking any of the grounds specified in Articles 60–62 (5).

Additionally, the VLCT does not address the effects of armed conflicts, war, or hostilities on treaty obligations. The International Law Commission intentionally excluded such scenarios from the scope of the VLCT, ensuring that they are governed by customary international law (6). Article 73 of the VLCT reflects this approach, stating that ‘The Convention shall not prejudge any question which may arise in connection with a treaty in the event of hostilities between States.’ Accordingly, the VCLT provides no guidance on whether a treaty may be suspended or modified during a conflict or escalating political tensions (1).

A Legal Grey Area: ‘Abeyance’

‘Abeyance’ is not a legal concept with an official basis under either the IWT or the VCLT. Experts argue that neither document provides an explicit mechanism for suspending an agreement and that the conditions for a fundamental breach have not been met. However, it should not be overlooked that the IWT, like most Cold War-era agreements, was drafted with a specific geopolitical context in mind (7). In this context, the agreement does not account for the nature of contemporary threats, particularly asymmetric and persistent transnational terrorist actions that undermine the very foundation of cooperation.

The IWT lacks clarity on how states should proceed in situations where procedural cooperation is used as a means of obstruction or where treaty mechanisms are manipulated by one party to hinder the legal development of the other. For this reason, some experts do not consider India's decision to ‘suspend’ the treaty as a violation of international law. They argue that this decision should be understood as a reasonable legal position based on customary international law and emerging doctrines of state responsibility.

The ‘Proportional Restriction’ Step in Water Treaty Law

India has not withdrawn from the agreement, redirected water flows, or violated allocation quotas. However, its announcement that it is suspending the agreement (abeyance) has created a strong perception that it could do so. In fact, India does not currently possess the infrastructure necessary to significantly disrupt downstream use of the rivers. Therefore, some experts interpret this statement as India temporarily suspending procedural cooperation, i.e., its participation in dispute resolution meetings, joint commissions, and routine diplomatic engagements under the Agreement. They argue that this should be considered a mitigated legal restriction in water relations following a terrorist act (1).

Therefore, since ‘suspension’ does not exist in treaty law, it emerges as a passive strategic move, provided that there is no planned intervention in the flow below and water is not used to cause harm. It is therefore argued that the act of suspending an agreement reflects a new but not unlawful response that derives its legitimacy from traditional doctrines such as countermeasures and necessity (1). However, principles of international law permit a state to temporarily suspend its obligations as a proportionate response to a serious breach by the other party, provided that the action remains reversible and the state seeks to return to legal cooperation.

States' suspension behaviour as a “Countermeasure”

Although there is no explicit provision in the IWT allowing for the termination of the agreement, Article 62 of the VLCT, as noted by India's former Indus Water Commissioner, provides that a treaty may be terminated or withdrawn in the event of a fundamental change in the circumstances. India, in its notification to the Pakistan Ministry of Water Resources, referred to this provision, citing ‘ongoing cross-border terrorism’ as a fundamental change creating ‘security uncertainties’ that undermine the conditions under which the Agreement was concluded. Experts argue that placing the IWT on hold could be interpreted as a legal countermeasure rather than a violation.

Under international law, ‘countermeasures’ are unilateral, non-coercive actions taken by a State in response to a violation of international law by another State. The purpose of these actions is to encourage compliance or provide compensation for wrongful acts. In other words, ‘countermeasures’ should be proportionate, reversible, and aimed at restoring lawful behaviour. India's statement – ‘suspending procedural cooperation while protecting river flows’ – appears to meet these criteria. The key point here is that India has not planned to restrict river flows or release excessive water downstream. Rather, it aims to manage water within the natural flow of the river without causing harm to the downstream riparian state. This strategic step can be considered a measured, temporary response to an internationally perceived unjust action carried out within a legal framework of restrictions. Therefore, the decision to ‘suspend’ can be regarded as a valid countermeasure based on the doctrine of state responsibility and necessity, rather than a refusal to comply with treaty obligations (1).

Examples of ‘Suspension - Putting on Hold’ of Treaties

There are limited but notable examples of states suspending treaty obligations under extraordinary circumstances. For example, in 1986, following New Zealand's decision to ban nuclear-armed ships by declaring a nuclear-free zone, the United States (US) suspended its security obligations towards New Zealand under the 1951 Australia-New Zealand-US Security Treaty (2). Regionally, in the 1970s, India unilaterally suspended water sharing arrangements with Bangladesh and effectively halted transboundary water flows until the 1977 Farakka Agreement was negotiated (3). Some experts have assessed the US's decision in 2023 to suspend data sharing with Russia under the New START agreement in response to Russia's non-compliance as a measure similar to India's current approach to the IWT (4).

Conclusion

States' practices of “suspending, putting on hold, or halting” international agreements emerge as examples specific to their own circumstances. States have occasionally used the suspension of treaty obligations as a form of political pressure. With its announcement to halt the 65-year-old Indus Water Treaty, India has adopted a new and radical stance on the matter. Beyond routine diplomatic measures such as trade sanctions, visa cancellations, and travel bans, suspending a 65-year-old water-sharing agreement has created a unique situation, even if it falls within the grey area of international law. Article 67 of the Vienna Convention on the Law of Treaties defines four different actions: ‘declaring a treaty invalid, terminating it, withdrawing from it, or suspending its operation (suspension).’ India's use of the term ‘abeyance’ instead of ‘suspension’ in its statement has created a different situation. India's decision to merely suspend the agreement and not use water as a weapon of war, at least for now, is a positive development for the security balance in the region. India's decision to ‘suspend’ the agreement leaves room for hope that the agreement could be revived if conditions change.

Experts note that India's decision does not constitute a deliberate and planned act of harm and remains within the legal grey area accepted by international law as long as it does not involve ‘countermeasures’ (1). In this sense, India's announcement to ‘suspend’ the agreement can be seen as a strategic move aimed at ensuring the more effective implementation of the agreement, rather than a rejection of its international obligations. It is argued that the aim is to facilitate the revision of the agreement in light of changing conditions, geopolitical realities, and the principles of trust and mutual benefit between countries. Developments in the Indus basin will necessitate new assessments of certain transboundary water agreements.

Note: This article was co-authored by Dursun YILDIZ, Director of the Hidropolitik Academy, and Dr. Hasan Hüseyin DOĞAN, 2nd President of the Water Policy Association.

Sources

[1] Nishant Sirohi ‘Indus Treaty in “Abeyance”: A Strategic Pause, Not a Legal Breach’ Indus Treaty in ‘Abeyance’: A Strategic Pause, Not a Legal Breach Apr 28, 2025

[2] Amy L. Catalinac (2010) Foreign Policy Analysis (2010) 6, 317–338 Why New Zealand Took Itself out of ANZUS: Observing ‘Opposition for Autonomy’ in Asymmetric Alliances. Available at https://scholar.harvard.edu/files/amycatalinac/files/catalinac_fpa.pdf

[3] Kishor Uprety & Salman M. A. Salman (2011) Legal aspects of sharing and management of transboundary waters in South Asia: preventing conflicts and promoting cooperation, Hydrological Sciences Journal, 56:4, 641-661, DOI: 10.1080/02626667.2011.576252 available at : https://doi.org/10.1080/02626667.2011.576252

[4] Fact Sheet U.S. Countermeasures in Response to Russia's Violations of the New START Treaty Bureau of Arms Control, Deterrence, and Stability June 1, 2023.available at: U.S. Countermeasures in Response to Russia's Violations of the New START Treaty - United States Department of State

[5] Vienna Convention on the Law of Treaties 1969 Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331. UN 2005. Available at: Vienna Convention on the Law of Treaties (1969)

[6] Draft articles on the effects of armed conflicts on treaties, with commentaries 2011appears in Yearbook of the International Law Commission, 2011, vol. II, Part Two. UN 2011 Available at: Draft articles on the effects of armed conflicts on treaties, with commentaries, 2011

[7] Majed Akhter, (2015) The hydropolitical Cold War: The Indus Waters Treaty and state formation in Pakistan, Political Geography, Volume 46, 2015, Pages 65-75, ISSN 0962-6298, https://doi.org/10.1016/j.polgeo.2014.12.002. (https://www.sciencedirect.com/science/article/pii/S0962629814001255)