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 was 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.

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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, I argue that India walks a fine line ~ where arguments galore both for and against exist ~ while clarifying certain misconceptions that have crept in. The IWT needs no separate introduction. For 64 years the treaty has been at the forefront of Indo-Pak diplomacy and tug of war. Previously, Pakistan has invoked IWT’s dispute settlement provision (Article IX) birth ing two arbitrations. The first resulted in an award by the PCA in 2013. The latter is still pending (Pakistan v. India, PCA Case No. 2023-01) and has uniquely re – sulted 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 annou – nce the immediate ‘abeyance’ of IWT followed by the official notification. This raises a fundamental question, can India do so? 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 (Blacks Law Dictionary; See also P. Aiyar, Concise Law Dictionary). The IWT text no – where uses the word suspension or abeyance nor does it provide for an exit clause. In case of ‘termination’ or ‘modification’, under Article XII, it can only be done by a mutually ratified treaty. Thus, ‘ab – e yance’ taken at 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. 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 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’ a.k.a suspension, India has indeed exposed the vulnerable veins of Article IX. Given IWT’s history, it will not be surprising if Pakistan, once again, invokes Article IX to take India before the PCA. 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 material breach (Article 60), impossibility (Article 61), and fundamental change (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, encapsulating the doctrinal principle of rebus sic stantibus allowing for “suspending the operation of the treaty” in the case of “fundamental change in circumstances”. The preamble of 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 IWT. Despite the apparent wriggle room, the bar of Article 62 is considerably high. The International Court of Justice (ICJ) in the case of Gab�íkovo-Nagymaros Project (Hungary/Slovakia) [ICJ reports 1997, p 7] has held that even political and economic shifts may not be closely connected to the object and purpose of the treaty to justify termination.

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 IWT does not contain any provisions and/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 justification can be by relying on Article 60 (3) (b) 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, IWT is pre-1969 ~ how and to what extent VCLT can be applied will be a huge question by itself.

(The writer, a King’s College, London, alumnus, is an international disputes lawyer)