Two days after the April 22 attack in Pahalgam in Indian-administered Kashmir, New Delhi declared that its participation in the 1960 Indus Waters Treaty (IWT) would be “held in abeyance” until Pakistan “credibly and irrevocably abjures ” with cross-border terrorism. Islamabad responded by threatening to place “all bilateral accords, including Simla” in abeyance and warned that any tampering with river water flows would be treated as an “act of war.” The IWT, brokered by the World Bank and long praised for surviving wars and crises in the subcontinent, is now in a state of legal limbo. But whether that pause can stand up in international law, and what legal recourse is available to Pakistan, has become the center of the dispute.
India’s Case: Material Breach or Fundamental Change?
The IWT lacks an “exit clause,” a provision that spells out how a party may suspend, terminate, or pull out of the treaty after giving notice. Because no such off-ramp exists, New Delhi must look outside the four corners of the text for legal cover. Officials and sympathetic scholars therefore invoke Articles 60 and 62 of the Vienna Convention on the Law of Treaties (VCLT). Article 60 permits suspension if the other party commits a “material breach” of an essential provision, understood as a serious violation that undermines the core obligations of the treaty. Article 62 allows for suspension when an unforeseen and fundamental change of circumstances arises, such that the continued application of the treaty would defeat its original object and purpose.
While India has not formally used the legal term “suspension,” its statement that the treaty is being held “in abeyance” until Pakistan acts on terrorism could be interpreted as an argument for a lawful countermeasure—namely, a temporary halt in obligations in response to alleged internationally wrongful conduct.
New Delhi seems to be arguing that Pakistan’s alleged support for groups that carry out attacks against India, such as Pahalgam, constitutes a material breach of an overarching duty of good faith and peaceful relations, making continued observance of the IWT untenable. However, the IWT itself contains no explicit clause requiring good faith or peaceful relations, unlike many modern treaties. While good faith is a general principle of international law and reflected in the VCLT, invoking it as the basis for suspension under Article 60 is more difficult when the treaty text itself does not impose such an obligation. India appears to rely on this standard by inference, either through customary international law or procedural provisions in the treaty such as requirement for data sharing and cooperation. Alternatively, some Indian analysts add that demographic pressure, climate stress and technological shifts amount to a fundamental change unforeseen in 1960, supporting the Article 62 route. However, critics argue that climate stress and demographic shifts are not unique to India but affect both riparians, weakening the claim of unforeseen or inequitable change. International tribunals have also emphasized that such shifts, while serious, must fundamentally alter the equilibrium between parties to justify suspension—a threshold India may struggle to meet unilaterally. Additionally, while climate change may certainly strain water availability, it does not necessarily defeat the treaty’s core objective of reducing conflict through stable, bilateral water allocation.
New Delhi seems to be arguing that Pakistan’s alleged support for groups that carry out attacks against India, such as Pahalgam, constitutes a material breach of an overarching duty of good faith and peaceful relations, making continued observance of the IWT untenable. However, the IWT itself contains no explicit clause requiring good faith or peaceful relations, unlike many modern treaties.
International jurisprudence sets an exceptionally high threshold for attributing non-state violence to a state, typically requiring clear evidence of direction or control by state authorities. Even Indian legal experts sympathetic to a tougher water posture concede that proving a material breach under Article 60 would be an uphill task and that New Delhi would need a broader “lawfare” strategy to defend its position.
Both arguments face steep odds. The International Court of Justice (ICJ) has set a high bar for Article 62; in Gabčíkovo–Nagymaros, the ICJ rejected Hungary’s claim that post-1977 environmental awareness justified abandoning a Danube dam treaty, finding the changes neither truly fundamental nor unforeseen. The threshold for Article 60 is similarly exacting: the alleged breach must violate a provision “essential to the accomplishment” of the treaty’s object or purpose. India, however, does not allege that Pakistan has violated the water-sharing rules; only that it instigates terrorism. Even if that accusation were proven, it lies outside the IWT’s subject matter, making the link to a material breach tenuous.
Even if India avoids invoking the VCLT directly, it might argue that its “abeyance” of the treaty is a lawful countermeasure, i.e., a temporary, proportionate response to what it considers internationally wrongful conduct by Pakistan. Under the Articles on State Responsibility, countermeasures are permitted only if the injured state calls upon the responsible state to cease the wrongful act, offers negotiation, and observes proportionality and reversibility. India has not satisfied these procedural conditions, nor has it demonstrated how suspending a water-sharing regime, rather than, say, freezing trade, would meet the requirement of targeting the wrongful act. As such, the countermeasure defense would likely face serious scrutiny if tested before an international forum. One caveat raised is that India is not a party to the VCLT. However, the Articles it relies on largely reflect customary international law, which binds all states. In practice, Indian courts and diplomatic notes have cited VCLT provisions as authoritative, and an internal treaty-making manual states that New Delhi follows the Convention’s provisions even without formal ratification.
Moreover, both Articles 60 and 62 are subject to a procedural condition often overlooked in public debate: the claimant must first invoke and exhaust the dispute-resolution machinery written into the treaty itself. Article IX establishes two separate tracks: a Neutral Expert to resolve technical “differences,” and a Court of Arbitration to adjudicate legal “disputes,” with the World Bank assisting in the appointment of personnel if the parties cannot agree. However, India bypassed those steps, announcing suspension by executive fiat. . In arbitral and judicial proceedings, failure to exhaust such preconditions has routinely led to the dismissal of Article 60 or 62 claims for lack of admissibility. Thus, that procedural omission alone is likely to weigh heavily against India’s legal position.
Pakistan’s Toolbox: Treaty Mechanisms and Beyond
Islamabad’s first port of call is the IWT’s own architecture. Given that the IWT designates the World Bank as a facilitator, not merely a witness, Pakistan can ask the Bank to certify that India’s move violates Article XII (4), which states that the accord “shall remain in force until terminated by a duly ratified treaty” between the parties. A 2016 precedent, when both sides asked the Bank to pause parallel arbitration over the Kishanganga project, shows that Washington-based officials can still act as gatekeepers when the mechanism is at risk .
If bilateral channels reach an impasse, Pakistan could request arbitration under Article IX or, failing that, attempt to have the dispute heard by the ICJ. Although neither state has accepted the Court’s compulsory jurisdiction, they may do so ad hoc for a specific case, as they did in a case regarding aerial overflights after the 1971 war. Pakistan’s attorney-general has already convened an advisory panel to map out three potential fora, including the ICJ and the Permanent Court of Arbitration.
Islamabad has also hinted at raising the matter before the UN Security Council as a threat to international peace and security. Such appeals are politically potent but legally indirect; Council resolutions would not decide treaty validity but could increase diplomatic pressure on India to reinstate cooperation. However, the Council is unlikely to act decisively, particularly if permanent members such as China or the United States view the matter as a bilateral issue or not constituting a threat to international peace and security.
Law Beyond the Treaty
It is important to underscore that invoking suspension under Article 60 is not merely a matter of policy declaration; it requires a formal legal invocation, compliance with procedural steps, and, in most cases, initiation of the treaty’s enforcement mechanisms. Even if India survived treaty-law scrutiny, suspending the IWT would not grant it unfettered discretion upstream. Customary international water-course law, as reflected in the 1997 UN Convention on Non-Navigational Uses of International Watercourses and repeatedly endorsed by the ICJ, imposes three enduring duties: to share water fairly between states, to avoid causing serious harm to downstream users, and to inform co-riparians in advance of any planned measures that could affect them. Crucially, however, these principles require reciprocal adherence and cannot be unilaterally defined by one state. India may argue that its current use complies with equitable utilization, but in the absence of agreement or independent adjudication, such claims carry limited legal weight and risk undermining the very norms India invokes.
Even if India survived treaty-law scrutiny, suspending the IWT would not grant it unfettered discretion upstream.
For India, that means no sudden diversion, impoundment or withholding of river flows could lawfully proceed if it deprived Pakistan of a fair share or inflicted serious downstream damage. Any hydro-engineering project with trans-boundary effects would still require notice and consultation. In practical terms, New Delhi currently lacks storage infrastructure on the western rivers to inflict an immediate water shock that would “close the taps,” a point acknowledged by security analysts on both sides. Legal limits and engineering constraints therefore converge: suspension may be symbolic leverage but is no license to unilaterally cease or drastically curtail downstream flows.
Narrow Legal Corridors to De-escalation
While the courtroom paths outlined above are real, past Indo-Pak crises suggest that protracted litigation rarely resolves what politics sets in motion. Yet law can still shape the crisis in subtler ways. First, the possibility of an adverse arbitral award or a stinging advisory opinion from the ICJ would raise the diplomatic cost for India of letting the pause harden into a precedent. Second, Pakistan’s recourse to lawful protest would help frame its response as rule-bound rather than reactive, likely shoring up international support for its position. Third, both sides have a long record of quietly reverting to the IWT’s data-sharing and inspection routines after momentary escalations, treating the treaty less as a concession than as risk insurance.
For now, the dispute has pushed the IWT regime into its most precarious state since 1960. Yet the same legal architecture that India finds constraining also offers both capitals a path back to a predictable framework: reinvigorating the Permanent Indus Commission, reinstating joint inspections and, if politics absolutely demands it, negotiating limited amendments rather than considering abrogation. International water law does not guarantee cooperation, but it narrows the range of sustainable unilateral options. In South Asia’s brittle environment, that narrowing may be the closest outcome the law can offer to stability. Whether framed as a suspension under treaty law or a countermeasure under state responsibility, India’s move lacks the procedural discipline and legal clarity required to establish legitimacy.
Views expressed are the author’s own and do not necessarily reflect the positions of South Asian Voices, the Stimson Center, or our supporters.
Also Read: The Fragility of Stability: India-Pakistan Nuclear CBMs in the Shadow of Pahalgam. For more analysis on Pahalgam and its aftermath, read our entire series here.
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Image 1: Passionatephotog via Wikimedia Commons
Image 2: Vitya_maly via GoodFon
