IN this article, I argue that India’s decision to hold the Indus Waters Treaty in abeyance fails on two independent grounds. First, ‘abeyance’ is a status unknown to the treaty and to the law of treaties: the IWT contains no suspension or exit clause, and Article XII(4) continues it in force until terminated by a duly ratified treaty betw­een the Pakistani and Indian governments. Sec­o­­nd, even according to India’s own logic the step was premature, for every fact it relies upon is disputed and none has been examined by any com­petent multilateral or bilateral forum or court.

The tragic Pahalgam incident occurred on April 22, 2025. FIR No. 25/2025 was registered within 10 minutes of the incident. No Pakistani national was named in it. Without proper investigation, without the apprehension of any suspect, without a confessional statement, and without seeking cross-border cooperation through any mutual legal assistance, India assumed that it was Pakistan that caused the terrorist incident.

Let us now turn to a letter by India’s water and power ministry addressed to Pakistan and dated April 24, 2025, just two days after the Pahalgam attack. In the said letter, India takes a strong position that “sustained cross-border terrorism by Pakistan targeting the Indian Union Territory of Jammu and Kashmir” is a fact tantamount to not honouring the good faith that is ‘fundamental’ to a treaty.

Pakistan categorically denies this ‘fact’ of sustained cross-border terrorism in occupied Jam­mu and Kashmir, including Pahalgam. Its Forei­­gn Office, prime minister and ministers have all denied involvement. The very existence of the ‘fact’ has thus fallen into dispute; a disputed fact is an allegation, nothing more. India has only put a baseless assertion in place of proof.

A state that suspends performance on its own assessment of another’s breach acts at its own peril.

The facts India relies upon are what we in le­­gal practice call ‘issues’; they are: whether Pak­i­stan was involved in the Pahalgam attack; whe­ther Pakistan is providing sustained cross-border terrorism targeting Indian-occupied Jammu and Kashmir; whether Pakistan has refused to enter into negotiations as envisaged under the IWT and is thus in breach of the treaty.

The first two issues do not belong to the Indus waters machinery at all. Article XI expressly confines the treaty to the use of the waters of the rivers and associated matters. Terrorism, however grave, is extraneous to a treaty dealing with water and hydro works. Even if ‘proved’, it could not constitute a breach of this treaty and no unilateral letter can extend the ambit of a treaty’s subject matter which was never agreed to nor envisioned by the parties. Such allegations have their own forums: the UN Security Council and its counterterrorism committee, the Shanghai Cooperation Organisation, the FATF where financing is alleged, and existing mutual legal assistance regimes for bilateral cooperation in criminal cross-border matters. India approached none of them.

The third issue fails in law and in fact. In law, Article XII(3) is permissive: the treaty “may from time to time be modified by a duly ratified treaty”. It confers a jointly exercised option, not an obligation, and a state that declines to renegotiate is not in any breach whatsoever. In fact, Pakistan never declined. Its reply of April 26, recorded: “At no point has Pakistan refused to engage. On the contrary, Pakistan has consistently conveyed its openness to hear and discuss India’s concerns.” A refusal that never occurred, to negotiate what was never obligatory, cannot constitute a breach, let alone a material one.

If India nonetheless believed that some conduct of Pakistan affected the application of the IWT, the route lay in the treaty itself. Pakistan’s letter said precisely this: “... If India considers that there is a conduct by Pakistan that either affects the application of the treaty or constitutes a breach, it is open to India to pursue these claims under the mechanisms established by Article IX of the treaty.

Were India to do so, Pakistan would engage fully and without hesitation, including as appropriate by agreeing to the urgent empanelment of a court of arbitration to address such matters without delay.” India, instead, chose not to join the proceedings before the court or to present its case before any international forum.

A state that suspends performance on its own assessment of another’s breach acts at its own peril; the International Court of Justice said as much in the Gabíkovo-Nagymaros case (Hungary/Slovakia, ICJ Reports, 1997). When India’s stance was tested, the Court of Arbitration in its supplemental award of June 27, 2025, held that India’s ‘abeyance’ has no effect on the court’s competence, irrespective of the justification offered. The court did not find it necessary to examine the terrorism allegations at all. The award speaks for itself.

Intended to be purely an engineering treaty, the IWT has been transformed by India’s letter of April 24, 2025, into a political document, linked to allegations extraneous to its subject, thereby creating a dangerous uncertainty for a lower riparian.

Years ago, I wrote in these very pages that we need to object to the justification of all hydro projects bilaterally at the governmental level and not at the commissioners’ level, because, under the garb of engineering clearance of drawings, India is building its capacity to delay water flows or considerably divert water from the lower riparian. It is seeking a go-ahead on projects under the annexes of the treaty, but the object seems to be, at some stage, to threaten the lower riparian with starvation. I was then relying on statements of out-of-power BJP and RSS extremist elements which, years later, unfortunately for Indian democracy, have been mainstreamed and are now an official narrative of the Indian government.

What the world is noticing is that India, an aspirant for a permanent seat in the UN Security Council, has held a 65-year-old water treaty in abeyance on the strength of facts it has neither proved nor permitted any forum to examine.

The writer is a former caretaker federal law minister.

Published in Dawn, July 11th, 2026