On April 27, 2025, an unexpected rise in water levels of the Jhelum river in Pakistan-Administered Kashmir [‘PAK’] caused flooding in the region, with residents struggling to ‘protect lives and property’. A week later, India again released water from dams in Indian-Administered Kashmir [‘IAK’] without notifying Pakistan that water levels in the Chenab river would rise as a result. These incidents come days after India announced that the ‘Indus Waters Treaty, 1960 will be held in abeyance with immediate effect until Pakistan credibly and irrevocably abjures its support for cross-border terrorism’.
This post argues that India’s actions of unilaterally releasing (or withholding) water of the Jhelum and Chenab rivers probably violate customary international law and the Indus Waters Treaty, 1960 [‘IWT’].
Customary International Law
The injunction upon states not to cause transboundary harm to another state through the use of their territory was famously established in the Island of Palmas Arbitration, where arbitrator Max Huber argued that ‘territorial sovereignty…has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability’ (Island of Palmas [Netherlands v United States of America] 839). The prohibition against transboundary harm was famously operationalized through the ‘no harm rule’ in the Trail Smelter Arbitration, which established that states are required to exercise due diligence to prevent significant harm to other states. This principle has emerged as one of the pillars of international environmental law.
More specifically, the prohibition against transboundary harm was operationalized in the context of transboundary rivers through the principle of ‘equitable and reasonable utilization’. Encapsulated in Articles 5 and 6 of the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses, it has been cited as a norm of customary international law by eminent jurists and the International Court of Justice. The most important substantive element of this principle remains the obligation ‘to prevent the causing of significant harm to other watercourse States’ [Article 7(1)]. Nevertheless, the precise content of this substantive obligation remains fuzzy. However, the Convention — which was the product of a nearly four-decade long debate at the International Law Association — places upon states a ‘general obligation to cooperate’ on the ‘basis of sovereign equality, territorial integrity, mutual benefit, and good faith’ [Article 8(1)]. This obligation to co-operate means that a riparian state must provide a ‘timely notification’ of a measure which ‘may have a significant adverse effect’ upon the other state [Article 12].
In this case, even if India’s move to put the IWT ‘in abeyance’ can withstand legal scrutiny, they would continue to be bound by the principle of equitable and reasonable utilization of transboundary rivers under customary international law. This means that India’s actions of releasing water from dams in IAK into the Jhelum and Chenab rivers without notifying Pakistan, and causing potential flooding in PAK, are probably illegal.
Indus Waters Treaty, 1960: what does it do, and can it be ‘put in abeyance’?
The Treaty was signed in 1960 between India, Pakistan, and the World Bank and divides access to the Indus river and its five tributaries. Under the Treaty, India has access to the rivers (Sutlej, Ravi, and Beas) under its territorial control, and Pakistan is free to exploit the Jhelum, Chenab, and Indus in its territory. Along with granting states the right to exploit rivers in their territory, the Treaty sets up mechanisms of co-operation including exchange of hydraulic data [Article VI], notification regarding construction of works which might affect the other state [Article VII], and a Permanent Indus Commission comprising one senior engineer from India and Pakistan each to ‘establish and maintain co-operative arrangements for the implementation of’ the IWT [Article VIII (4)] .
India’s actions of releasing water into the Jhelum and Chenab rivers without notifying Pakistan clearly violate the terms of the IWT. However, India would argue that these actions came after they had put the IWT ‘in abeyance’, which meant that they were no longer bound under the Treaty regime. The Treaty has no provision for unilateral suspension, and Article XII(4) lays down that the provisions of the Treaty ‘shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments’. Given the strained nature of India-Pakistan relations post-1947, this provision was essential to ensure the success of the Treaty. Therefore, the next legal question is whether India is entitled to unilaterally put the Treaty ‘in abeyance’.
India put the treaty ‘in abeyance’ as one of the measures in retaliation against Pakistan for an attack by gunmen which claimed the lives of 26 civilians in Pahalgam (IAK) on 23 April 2025. The Indian Foreign Secretary clarified that the government had been briefed that the attack had ‘cross-border linkages’.
One of the challenges of legally evaluating India’s statement is that it avoids using the terminology of ‘suspension’ of the Treaty. This was probably deliberate because Articles 60 and 62 of the Vienna Convention on the Law of Treaties [‘VCLT’] deal with the circumstances in which a state may unilaterally suspend a Treaty. And while India is not a state party to the VCLT, these provisions of the VCLT reflect customary international law. Despite not using the language of suspension, the effects of India putting the IWT ‘in abeyance’ are similar to a suspension of the Treaty.
Article 60 entitles a state to unilaterally suspend a treaty if a party either repudiates the treaty [Article 60(3)(a)], or violates a ‘provision essential to the accomplishment of the object or purpose of the treaty’ [Article 60(3)(b)]. Since the trigger for India’s action was a militant attack which had nothing to do with the water-sharing arrangement instituted by the IWT, India would struggle to establish that the actions of Pakistan constituted a material breach. And this is without delving into whether the actions of the gunmen in Pahalgam can be attributable to Islamabad. Similarly, India would struggle to establish that the Pahalgam attack constituted a ‘fundamental change of circumstances’ which would ‘radically…transform the extent of obligations…to be performed under the treaty’ [Article 62(1)(b)]. The IWT has persisted through bilateral wars between India and Pakistan, and both countries have successfully fulfill their obligations under the Treaty. Furthermore, militancy in Kashmir is not new and is part of a long history of the armed struggle of the Kashmiri people for self-determination. Therefore, it is unlikely that India’s actions would be saved by Article 62.
Lastly, India may rely on the Articles on the Responsibility of States for Internationally Wrongful Acts (2001) [‘ARSIWA’] to claim that their actions constitute valid countermeasures. ARSIWA entitles a state ‘to take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State’ [Art 49(1)] to comply with international law. However, this argument would be hard to sustain. Firstly, India has not furnished evidence that the Pahalgam attack is attributable to Pakistan. Secondly, states are obligated to ‘notify the responsible State of any decision to take countermeasures and offer to negotiate with that State’ [Article 52(1)(b)] — India did not notify Pakistan, and announced the IWT being ‘put in abeyance’ in a press conference. Lastly, countermeasures do not relieve a state from fulfilling obligations under existing dispute settlement procedures [Article 50(2)(a)]. Article IX of the IWT sets up a detailed, escalatory mechanism of dispute settlement which would have to be exhausted by India before it could resort to countermeasures under ARSIWA.
Therefore, it is likely that India’s move to unilaterally put the IWT ‘in abeyance’ would not survive legal scrutiny. As a result, New Delhi was probably bound by the provisions of the IWT when it released water into PAK without notifying Pakistan, and this would constitute a violation of the IWT.
Implications — who pays?
The IWT was signed after thirteen years of negotiations between India and Pakistan (nine of which were with the mediation of the World Bank). The Treaty has been hailed as a functional triumph where international law was able to facilitate development of the Indus rivers by containing the disruptions of India-Pakistan power politics. Yet, this rosy framing ignores that the Treaty has imposed costs on the stateless people of Kashmir (on both sides of India-Pakistan border) since 1960. The construction of a dam in PAK on the Jhelum river, facilitated by the IWT, submerged several villages and displaced over 100,000 people. Six decades on, the electricity generated from dams in IAK (built under the IWT) is critical to New Delhi’s power grid but have had catastrophic ecological consequences in Kashmir, causing mass flooding in 2014 and 2022. This latest episode of India inducing flooding in PAK therefore must be understood in this longer trajectory of Kashmiris being caught in the cross-fire between India and Pakistan’s hydraulic contestation/cooperation. If the IWT is unilaterally suspended by India, New Delhi will likely expand hydropower generation from dams in IAK. And the ecological and political price of these dams will probably be paid first and foremost by stateless Kashmiris.