In Abeyance~ II

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

- AYAN K DE The writer, a King’s College, London, alumnus, is an international disputes lawyer

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, inter alia, disputes relating to 'situations or collective actions... taken for the protection of national security and ensuring national defence'. 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.