ON 31 August 2026, a Court of Arbitration constituted under the Indus Waters Treaty and administered by the Permanent Court of Arbitration at The Hague issued its Award on the Status of the Indus Waters Treaty, holding that the 1960 Treaty remains in force and that India must continue to perform its obligations. New Delhi rejected the award the same day, describing the tribunal as “illegally constituted” and declaring that its pronouncements would have no effect on India’s sovereign decisions. This is not a dispute over a treaty clause; it is a deliberate attempt to replace treaty law with a vocabulary of India’s own making, and that vocabulary has a name: abeyance.
Lawfare, as popularised by Major General Charles Dunlap, describes the use or misuse of law as a substitute for conventional instruments of power to achieve strategic ends. Its most effective form is not open defiance but the manufacture of legal-sounding categories that blur what is permitted. India’s announcement, a day after the Pahalgam attack, that it would hold the Treaty “in abeyance” fits that pattern precisely. The word sounds measured, temporary and procedural. In law, it is none of these things. The Treaty leaves no room for doubt. Article XII(4) provides that its provisions continue in force until terminated by a duly ratified treaty concluded between the two governments. There is no unilateral withdrawal clause, no suspension clause and no security exception. Under the customary law of treaties, codified in the Vienna Convention, a treaty may be suspended only in accordance with its own provisions or with the consent of all parties and neither condition exists here. A party claiming a ground for suspension must notify the other, state its reasons and allow the matter to be settled by peaceful means. India did none of this. A press statement is not a notification.
Even on its own terms, the Indian position fails. Suspension for material breach requires a breach of the very treaty being suspended, yet India has never alleged that Pakistan violated the Indus Waters Treaty. Linking water to terrorism imports an unrelated grievance into an instrument that has insulated water sharing from politics through three wars. As for a fundamental change of circumstances, the International Court of Justice in the Gabčíkovo-Nagymaros case held in 1997 that the doctrine applies only in exceptional cases and that changed political conditions seldom qualify. Population growth and climate stress, now cited to demand renegotiation, are precisely the foreseeable developments the Treaty’s dispute machinery was built to absorb.
Why, then, the insistence on abeyance? Because the term performs strategic work. Outright termination would be an unambiguous violation, inviting international censure and claims of state responsibility. Abeyance lets India maintain that the Treaty still exists while refusing to perform it: withholding hydrological data, suspending Commission meetings, accelerating projects on the western rivers and rejecting every tribunal that asks the inconvenient question. The device converts a binding obligation into a bargaining chip without paying the legal price of renunciation.
The rejection of arbitration follows the same logic. India has boycotted the Court since its constitution, yet the Court has twice ruled on this very question. In its Award on the Competence of the Court of 6 July 2023, it rejected India’s objections and confirmed its competence to hear the disputes Pakistan had referred to it in 2016, notwithstanding India’s refusal to participate. In its Supplemental Award on Competence of 27 June 2025, it held that India’s April 2025 decision to hold the Treaty in abeyance did not deprive it of that competence. That is orthodox international law: a state cannot defeat a compulsory dispute settlement mechanism by refusing to appear. Labelling a tribunal “illegal” after it rules against you is not a legal argument; it is a refusal to accept inconvenient law.
For Pakistan, the response must match the nature of the challenge. Lawfare is answered with better law, consistently applied. First, Pakistan should treat the August award as the authoritative statement of the Treaty’s status and invoke it in every relevant forum: before the World Bank, which is a signatory to the Treaty for specified purposes, in the General Assembly and the Security Council and with lenders financing projects on the western rivers. Second, it should document every deviation in flows, every withheld data set and every project milestone, building the record that future state responsibility claims will require. Third, it should explore, with like-minded downstream states, a General Assembly request for an advisory opinion of the International Court of Justice on whether a party may unilaterally suspend a boundary waters treaty that contains no such right. That question matters from the Nile to the Mekong. Finally, Pakistan must not mirror the tactic. Its strength lies in being the party that honours its commitments and uses the Treaty’s own channels.
The stakes reach well beyond the Indus basin. If a state can neutralize a ratified treaty by announcing a word that appears nowhere in its text, no transboundary agreement is secure and the principle of pacta sunt servanda, that treaties in force must be performed in good faith, becomes optional. The international community should reject that precedent, not as a favour to Pakistan but to protect the system on which every treaty depends. Abeyance is a word chosen to sound reversible. Its real purpose is to let an obligation fade away without the formal act that would expose the violation. Pakistan’s task is to ensure that the law and the world, see it for what it is.
—The writer is a former Deputy Director General of International Law, Pakistan Armed Forces.
