Regardless of the controversy justifying the suspension of the Indus Waters Treaty, India’s obligation under international law remains. International law obligates under VCLT (Art 72) and the law on state responsibility under the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) ((Art 49(3)) that measures taken in the duration of the suspension or countermeasure are reversible and allow for the resumption of the performance of the relevant obligation.

From another angle, it has been suggested that Pakistan can involve the International Court of Justice (ICJ). There seems to be a systemic misconception of the applicability of international law. Both India and Pakistan, though ipso facto admitting ICJ’s jurisdiction have made several reservations under Article 36 of the ICJ statute. The last all-encompassing declaration was made in 2019 by India, replacing its earlier declaration of 1974, which excludes from the ICJ’s purview, interalia, disputes relating to ‘situations or collective actions…. taken for the protection of national security and ensuring national defence’.

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A similar declaration was made by Pakistan in 2017. Thus, given the wide ambit of the reservations made it is highly unlikely Pakistan will be able to invoke ICJ’s jurisdiction against India and vice-versa. The only way to challenge the unilateral suspension is via Article IX of the IWT. Yet another misconceived position was advocated elsewhere by calling for a referral of the matter to the International Criminal Court (‘ICC’). This also suffers the same fate as above, even more bluntly for the simple reason that neither India nor Pakistan is a member of the ICC.

Both States have not ratified the Rome Statute and have not accepted ICC’s jurisdiction. For the matter to be referred to the ICC, India will have to conditionally accept the jurisdiction of the ICC under Art 12 (3) of the Rome Statute and Article 12 has to be read with Rule 44 of the Rules of Procedure and Evidence. A combined reading suggests that ICC’s jurisdiction tends to be broad and a selective declaration limited to a particular incident may not be allowed. The Pahalgam incident, arguably will fall under Crime against Humanity of Murder.

By its very definition, crimes against humanity have to be widespread or systematic. All this makes it difficult to keep a declaration very limited. Furthermore, the ICC Trial Chamber has provided a detailed clarification on this issue in Prosecutor v. Laurent Kou dou Gbagbo, No. ICC-02/11- 01/11-212 (PreTrial Chamber I, 15 August 2012, para. 5), wherein the Court has held that Article 12 (3) read with Rule 44 limits States discretion in framing the situation that may be investigated by the Court and the Court cannot be used ‘opportunistically’. Even if, hypothetically, India succeeds in limiting its declaration, doing this will be a nightmare ~ legal, political and diplomatic.

This will expose India to possible counter-cases from other ICC members. The other way is for the United Nations Security Council (UNSC) to refer the matter under Article 13 of the Rome Statute. This too poses veritable problems. A suggestion of referring the matter to the UNSC, where Pakistan has a seat currently (and China has a veto), will thus be an imprudent one. Just a plain reading of UNSC Press Statements issued on the terrorist attack on Jaffar Express, and the terrorist attack on Pahal gam are enough to clarify the council’s stance currently. Thus, in the current political habitat, a UNSC resolution referring to the Pahalgam attack on the ICC is also a non-starter. The alternative workaround argument isn’t incomprehensible.

Although not formally bound by the VCLT, India has implicitly endorsed the principle of pacta sunt servanda which coexists with well-accepted doctrinal principles such as countermeasures, necessity, and state sovereignty. These principles may, in exceptional cases, justify a temporary departure from treaty obligations. This is where the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) come into play. Given that the ILC Articles on Responsibility of States for Internationally Wrongful Acts have arguably achieved the status of customary international law, the doctrines of necessity (Article 25), self-defence (Article 21) and countermeasures (Article 22) further support India’s stance. This approach provides India with flexibility in such matters of suspension or termination, as in the recent IWT fiasco. Yet, it must be remembered these defences will be invoked as and when arbitration commences to justify the deviation from the Treaty.

Under the treaty, there are – mains not a morsel of doubt ~ such unilateral suspension is not permitted. One can argue that it is not expressly barred. At the same time, it is not expressly allowable either. Even though one can rely upon the VCLT to justify the suspension, albeit unilateral, the issues of VCLT are hard to miss. Yet the counterargument isn’t incomprehensible. As one can argue, on the first issue, if VCLT arguably represents principles of customary international law (CIL), it has been acknowledged by the Indian court in AWAS Ireland v.

Directorate General of Civil Aviation and has been invoked by India in the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) arbitration. This dilutes the nonsignatory argument. On the second issue, while Article 4 VCLT enumerates the non-retroactivity to prior concluded treaties; if, however, the VCLT provisions reflect established customary law, these rules apply to treaties concluded by States Parties before the entry into force of the VCLT (See Botswana v. Namibia [1999] ICJ Rep 1045, para 18; and Democratic Republic of the Congo v. Rwanda (Jurisdiction and Admissibility) [2006] ICJ Rep 6, para 125) Despite this, the question still lingers on an ‘if’~ that is the million-dollar question. ‘If’ VCLT does reflect customary international law, then the workaround is that treaties such as IWT (which are pre-1969) can be within the ambit of VCLT. The first stage hurdle is to make VCLT applicable to India, and that is based on the ‘IF’ ~ ness of VCLT reflecting CIL.

While the Indian Prime Minister once remarked that ‘blood and water cannot flow together’, India’s so-called ‘in abeyance’ aka suspension raises far more nuanced questions under international law. It is more than the IWT not providing an exit clause. It is deeper. It strikes at the very root of the interpretation of treaties and the surrounding geopolitical environment with India skating on thin ice. It can be argued that the decision to place IWT in ‘abeyance’ is not a violation but a legal decision under the aegis of customary international law. Yet, on the other hand, the deployment of the diplomatic strategy of keeping IWT in ‘abeyance’ seems to play in a grey area of the Treaty. Though seemingly innocuous, it brews a recipe for disaster in its wake with potentially serious consequences for both sides.

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