By: Harsh Raj | Date: October 7, 2025
Introduction: Terror Brightens a Diplomatic Flashpoint
After the brutal terrorist attack by Pakistan-based militants on the Indian civilians in Pahalgam on April 22nd, 2025, India has announced that it has suspended the Indus Waters Treaty of 1960, the same Indus water treaty which weathered the storm of conflicts throughout many wars, border skirmishes, and diplomatic standoffs. The Pahalgam terrorist attack has reignited the debate of whether water and blood flow together, even when one of the parties weaponized terror, while the other honored the treaty with peace. India’s unpredictable announcement that the abeyance of the treaty will remain until Pakistan plausibly and permanently renounces its support for transboundary terror after the Pahalgam terrorist attack has ignited various complex legal questions. The primary focus of this post is to understand the meaning of “abeyance” under the scope of international treaty law from a legal standpoint.
Law on Abeyance: Can India lawfully “turn off the tap”?
The Cambridge definition of abeyance is “a state of not happening.” However, the same concept is not legally recognized under international treaty law, as neither the Vienna Convention on the Law of Treaties, 1969 (VCLT), nor the Indus Waters Treaty, 1960 (IWT) recognizes “abeyance” as a ground to suspend a treaty obligation.
As far as the IWT is concerned, it does not contain any provision allowing unilateral suspension. However, Article XII (4) of the IWT states that the treaty “continue in force until terminated by a duly ratified treaty concluded for that purpose.” Similarly, the VCLT, under Articles 60-62, permits suspension only on the grounds of material breach, impossibility, or fundamental change, and does not allow unilateral abeyance outside these conditions. Further, under Article 57 of the VCLT, the mutual consent of the parties is needed to suspend the treaty. Additionally, the VCLT has no express provision to govern the suspension of the treaty during conflict, as Article 73 of the VCLT establishes that the convention shall not prejudge any issue that may emerge due to state succession and responsibility and outbreak of hostilities. Hence, it can be surmised that there is no established law to govern the concept of abeyance with regard to international treaty law.
India’s State Practice and Domestic Endorsement
Although India is not a signatory to the VCLT, it has adopted the principles of the VCLT in many ways. One such instance is Ram Jethmalani v. Union of India, where the Supreme Court of India recognized that the VCLT codifies many customary law principles and held that treaties not contrary to municipal law are deemed to be incorporated into domestic law. Further, this case illustrates India’s judicial practice of applying VCLT principles, integrating international norms into domestic law even without formal ratification.
Another case that suggests that the Indian Judiciary has embraced the VCLT is AWAS Ireland v. Directorate General of Civil Aviation, where the Delhi High Court applied the principle of Pacta Sunt Servanda, which states that agreements are legally binding and must be carried out in good faith, and noted that an international convention must be interpreted normally and with good intentions.
Similarly, there is a series of judgments where Indian courts have embraced international treaties without being expressly incorporated by Municipal law. This series includes Aban Loyd Chles Offshore v. Union of India, where the Supreme Court observed that treaties may be referenced even in the absence of municipal legislation, provided that they are not in contradiction to the Municipal Law. The other judgments include Vishaka v. State of Rajasthan and National Legal Services Authority v. Union of India, where the Supreme Court applied International law in the absence of Municipal law. Additionally, in T.N. Godavarman Thirumulpad v. Union of India, the Supreme Court held that treaties which are not in conflict with the municipal law are considered as municipal law.
India’s Legal Strategy: Post-Pahalgam
The Ministry of Jal Shakti of India, in its formal communication with Ministry of Water Resources of Pakistan, has cited some of the fundamental changes including the altered population demographics, acceleration of the development of clean energy, and the obligation of both the parties to honor a treaty in good faith, which is being violated in the form of cross border terrorism targeting the Indian Union Territory of Jammu and Kashmir, which provide the reason to hold the treaty in abeyance.
The term “abeyance” is used deliberately to face the long-standing issue of state-sponsored terrorism that strikes at the core of trust on which the IWT was based. Although abeyance is not a legally recognized term in either international treaty law or IWT, it is not considered unlawful as its legitimacy can be drawn from customary international law, such as necessity and countermeasures, which permit a state to temporarily suspend its obligations in response to a serious breach by the other party. Further, Article 62 of the VCLT states that a treaty can be discontinued if there is a fundamental change in the circumstances. In its formal submission to the Government of Pakistan, the Ministry of Jal Shakti of India has highlighted a fundamental change in conditions, citing cross-border state-sponsored terrorism as equivalent to a fundamental shift, and asserting that the consequent security uncertainty damaged the treaty’s foundation.
Precedents of Treaty Suspension as Countermeasures
Past precedents of treaty abeyance include the 2023 US countermeasures halting data sharing in response to Russia’s non-compliance with warhead limits under the New START treaty. Similarly, in 1986, the United States waived its security liability to New Zealand under the 1951 Australia-New Zealand-US Security Treaty after New Zealand banned US nuclear armed ships from visiting the country. Another precedent is India’s unilateral suspension of water sharing arrangements with Bangladesh in the 1970s. The above example of abeyance is rare, since it has been rare for a country to suspend its treaty obligations as a form of political pressure. With the abeyance of the IWT, India is exploring new ground, in contrast to previous approaches, with the hope of reviving peaceful relations with its neighbors.
Conclusion: A Tap Half-Closed, Not Fully Turned Off
Holding the IWT in abeyance against the state-sponsored terror attack reflects the Indian acumen to exert pressure on the other party. Although the term “abeyance” lacks explicit legal backing, it finds support in doctrines of customary international law. It also serves as a legal and diplomatic signal that even decades-old treaties, which have survived many wars, can be subject to the realities of geopolitics when the foundational principle of mutual faith is undermined.
India’s decision to ‘half-close’ the tap is a strategic legal signal and a reminder that treaties that have existed for many wars and decades are not immune to the geopolitical realities, and a reminder that water and blood cannot flow together.
Harsh Raj is an undergraduate student obtaining his BA and LLB (JD equivalent) at the Faculty of Law, Jamia Millia Islamia in New Delhi, India. His research is primarily inclined towards international, constitutional, and matrimonial law.