'Abeyance' For Termination Of Indus Water Treaty? Some Lessons From The History Of Treaty Practice

By Dr. Argha Kumar Jena

The terror attack in Pahalgam a few days ago, has seemingly served as adequate diplomatic motivation for India to start being in abeyance of the Indus Water Treaty, 1960. The supposed legal effect of ‘abeyance’ is commonly understood as ‘suspension of obligations’ (as under a Treaty) in the public international law parlance.

It is popularly believed that India’s action conforms to the legal principle, Rebus Sic Stantibus, ergo ‘fundamental change of circumstances’ with regard to ‘those existing at the time of conclusion of the treaty’. Commonly reference is made to Article 62 of the Vienna Convention of the Law of Treaties when speaking to such legal principle. However, to comment on the viability and sustainability of the resultant popular argument, in my opinion, warrants a closer look at the nuances of the law and related history.

While many commentators have aptly examined strategic advantages in the realm of water security and potential economic benefits for India – and some even having commented on the supposed legality – a few sincere questions loom. How long can India stay in abeyance of the IWT? Are there circumstances that make it prudent for any treaty Party to be in abeyance, and remain a diplomatically fuelled flux? Can circumstances purportedly justifying abeyance be used to legally terminate the IWT? Or is there another solution for India to unilaterally exit the treaty with an uncooperative neighbour? At the end of it all, if India does manage to unilaterally exit IWT, would its perceived legality, if at all, be conducive for international law at large?

While such questions may appear daunting at the outset, it is my belief that the principles that govern what appear to be ‘legal’ are simpler and the considerations that may or may not lead to contextual decisions are better left to diplomats.

Treaties like the Indus Waters Treaty (IWT) and the 1965 Treaty on Basic Relations Between Japan and the Republic of Korea (BRJK) illustrate how geopolitical imbalances can shape international agreements, often resulting in arrangements that favour one side. Both were products of periods when global power dynamics were unsettled. The IWT emerged in the wake of India’s partition and subsequent conflicts with Pakistan, while the BRJK was negotiated when South Korea was excluded from the San Francisco Peace Treaty and under a government influenced by Japan. In both cases, negotiations were heavily influenced by external powers, particularly the United States and its agencies, which shaped the outcomes to suit broader strategic interests rather than ensure equity between the parties involved.

A key feature of both treaties is their language suggesting legal validity in perpetuity. The BRJK’s Claims Settlement Agreement (CSA) declared all reparations for Japan’s colonization of Korea as settled for a fixed sum, closing the door on future claims. Similarly, the IWT’s Article XII implies that the treaty remains in force indefinitely unless replaced by a new agreement. These provisions have made it difficult for either party to revisit or renegotiate terms, even as circumstances and perceptions of fairness have evolved over time.

Recent developments have brought renewed scrutiny to both agreements. In South Korea, the Supreme Court ruled in 2012 and again in 2018 that individuals forced into labour during Japanese rule could seek compensation, challenging the finality of the CSA. Japan responded with export controls targeting South Korea’s semiconductor industry, escalating tensions. When Japan sought arbitration under the CSA, South Korea declined to participate, leading to a diplomatic impasse.

On the IWT front, despite the disputes at the Kishenganga and Ratle projects – no effective solutions were achieved by the dispute resolution process prescribed under Article IX of the IWT. Undoubtedly, the Permanent Indus Commission’s (PIC) mandate to amicably resolve disputes through diplomatic dialogue has not been successful despite over 118 meetings. The second step i.e., the appointment of a neutral expert in accordance with IWT’s Article IX (2) read with Part 2 of Annexure F – has also not been historically successful. In other words, Pakistan’s (supposed) unilateral withdrawal of the request to appoint a neutral expert in 2015 and subsequent initiation of arbitration at the Permanent Court of Arbitration (i.e., the third/final step) in 2016 – evinced that an expectation of fair appraisal of agreed procedure cannot be expected. The tribunal assumed jurisdiction under contentious circumstances and, according to some interpretations, misapplied key treaty provisions. Especially under para 198 and 203-213 of the Award on Competence of the Court dated 6 July 2023.

A striking similarity between the two cases is the lack of responsiveness from the advantaged parties to calls for renegotiation. India’s requests to review or modify the IWT in 2023 and 2024 were dismissed or ignored, mirroring Japan’s refusal to revisit the BRJK or CSA. This persistent non-engagement has become a defining feature of both disputes.

Currently, the IWT dispute is being adjudicated upon, in parallel by a neutral expert appointed by the World Bank and an arbitral tribunal at the PCA. The neutral expert’s preliminary findings have reportedly supported India’s position, but the risk of conflicting decisions remains. This procedural complexity, coupled with the possibility of divergent outcomes, underscores the broader challenge: as long as one party continues to benefit from an imbalanced treaty and resists change, the other is left seeking remedies within a supposedly rigid legal framework. This situation calls for international law to correct historical inequities in treaties that were shaped by unequal bargaining power but were supposedly intended to last indefinitely.

While we are all appraised of the fact that the despicable Pahalgam terror attack is not the first of its kind post the signing of the IWT, using it as the factual basis to assert the grounds under Article 62 of the VCLT might not be a sound long-term strategy. This is largely because the grounds under Article 62(1) and (2) lays the foundation for unilateral withdrawal or termination of the treaty that a country “may also invoke” for “suspending the operations of the treaty” under Article 62(3). Simply put, the ‘abeyance’ can stand the legal test under Article 62 of the VCLT only if a case can be made out for termination or withdrawal from the IWT itself. In which case, India banking on “significantly altered population demographics” since the treaty was signed in 1960 and “the need to accelerate the development of clean energy” might need some more weight.    

The factual parallels that I have tried to draw here, state (a) squarely how not only the circumstances, under which the treaties were signed, have changed i.e., much beyond demographics; and (b) the conduct of the treaty Party has evinced adequately the changed circumstances under which the treaty continues to operate. The default position under Article 56 of the VCLT is that treaty parties have the sovereign right to withdraw or denunciate from any treaty even if such “right of denunciation or withdrawal may be implied by the nature of the treaty”. A close reading of Article XI(1)(b) of the IWT would indicate that there is neither any explicit or implicit waiver of the sovereign right to denunciate or withdraw from the treaty. Given the established-uncooperative nature of Pakistan as regards the IWT’s operation, a legal argument asserting change in circumstances could possibly be made to compliment the denunciation or unilateral termination of the IWT by India – if attempted. However, given the foreseeable geopolitical implications of any such attempt, the wiser route could be to supplement it with a proposal of negotiating a new treaty to replace IWT. That said, an exercise in narrowing down a precise point in time when the concerned circumstances surrounding the signing of the IWT – “changed” – would presuppose the concrete determination of the circumstances at the time of signing. Commenting on the latter without legal scrutiny of the IWT’s preparatory work risks needless inaccuracy on matters of fact and law.

Notably, not too long ago, the Treaty of Amity, Economic Relations and Consular Rights (1955) – which was unilaterally terminated by US, despite the ruling by the International Court of Justice ordering the US to ease sanctions on Iran related to humanitarian goods. The U.S. argued that the treaty was no longer relevant due to the deteriorated relationship between the two countries since 1979. Despite lacking a specific withdrawal or termination clause, the US justified its action using Rebus Sic Stantibus as a principle of customary international law. As another notable snippet from recent history, the denunciation of the Treaty of 2 November 1865, between China and Belgium, as a part of China’s actions against non-terminable ‘unequal treaties’ was approached with abrogation in 1929 under facts and circumstances that are comparable to that of those surrounding the IWT.

That said, it is a tangible possibility that available routes in public international law can make possible a hedging strategy for India to address the issues concerning the Indus Water Basin and the IWT. Given that the associated issues constitute a blend of economic and (international) legal considerations – a composite strategy that takes into consideration diplomatic requisites need to be adopted. It is the age of geoeconomics after all!

The author, Dr. Argha Kumar Jena, is an Indian attorney specialising in international dispute resolution and international economic law.

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