The Interpretation of ‘Abeyance’ in Pakistan v. India: An Inconclusive Finding Unsound in Doctrine and Policy

[Sanmay Moitra is a lecturer at Jindal Global Law School, India who has worked on international human rights litigation before international courts and advised on matters involving international law before the Supreme Court of India. He holds an Advanced LL.M. in Public International Law from Leiden University, an LL.M. in International Legal Studies from Georgetown University, and a BA in Jurisprudence from the University of Oxford.]

On 31 August 2026, a tribunal of the Permanent Court of Arbitration (PCA) released its latest award in the Indus Waters Western Rivers Arbitration instituted by Pakistan against India in relation to long-running disputes over the Indus Waters Treaty. The issue before the PCA in this instance was to determine the meaning and legal effects of India’s decision to hold the treaty in ‘abeyance’ in response to a terrorist attack in India-administered Jammu and Kashmir.

This was a particularly challenging task because the international legal vocabulary on the cessation of treaty obligations generally consists only of two terms: suspension and termination (VCLT, Section 5). As the Court noted, India’s reference to ‘abeyance’ lacks any precedent or technical meaning in international law (para. 220). India also did not offer any elaboration in relation to its choice of terminology. The complexity of this task was further exacerbated by the fact that India has maintained that the PCA lacks jurisdiction over this dispute and has thus not made any representations since the inception of the proceedings. 

Ultimately, the Court held that ‘abeyance’ has “no definitive meaning” and that “India’s decision may be a claim that the Treaty is either suspended or terminated” (para. 220). In other words, the Court rendered an inconclusive interpretation of the term. Despite the challenges confronted by the Court, this inconclusiveness could have been avoided had the Court correctly applied the conclusion of its own methodology by interpreting ‘abeyance’ as suspension and not relied centrally on the “lack of a formal legal analysis by India” (para. 220). Admittedly, the Court did not need to offer a conclusive interpretation in this instance since, in any case, India’s decision would lack any legal effect and the Indus Waters Treaty would remain in force. Under these circumstances, it is ostensible that the inconclusiveness of the decision was an exercise in judicial cautiousness motivated by a policy of deference to India on account of it already being a hostile and non-cooperative party in the proceedings. The immateriality of the interpretive result notwithstanding, however, the Court’s approach to not offer a conclusive interpretation of ‘abeyance’ here nevertheless represents a missed opportunity rooted in reasons that are arguably erroneous both in terms of doctrine and policy. 

The Divergence Between the Court’s Methodology and Decision on Interpreting ‘Abeyance’

The Court’s approach towards identifying the legal meaning of ‘abeyance’ was informed by a three-pronged exercise. First, the Court sought to identify its meaning by reference to India’s own statements on its decision to hold the treaty in abeyance. The Court found that, “as a factual matter […] India’s statements regarding its decision on abeyance are ambiguous as to its exact meaning” (para. 210). It reached this conclusion on the basis that statements by Indian officials had contradictorily referred to the decision to hold the treaty in abeyance both in terms of a temporary pause (para. 208) thereby suggesting a suspension, and in terms of the treaty being rendered inoperative and the obligations under it ceasing which suggested a termination (para. 209). 

Arguably, however, these statements — taken as a whole — likely suggest that ‘abeyance’ refers to suspension rather than termination. This is because the statements which suggested suspension were far clearer than those which the Court interpreted as suggesting termination. In one of the statements relied upon by the Court, for example, India’s Ministry of External Affairs remarked that “regarding the Indus Waters Treaty […] we have suspended it and placed it in abeyance” (para. 208). The Indian Home Minister also explicitly contrasted ‘abeyance’ with termination, noting that India cannot terminate a treaty unilaterally (para. 208).

The ambiguity only arose in relation to two communications by India to the World Bank and the PCA-appointed Neutral Expert where India expressed its understanding that all provisions of the Treaty are ‘inoperative’ and that India is “under no obligation to perform any of its commitments under the Treaty” (para. 209). Though the Court interpreted these statements as suggesting a termination, it is not immediately clear why. It would not be unreasonable to suggest that suspensions may equally have the effect of releasing parties from their obligations to perform the treaty. In fact, the VCLT specifically notes that a suspension “releases the parties […] from the obligation to perform the treaty” (Art. 72(1)(a)). Furthermore, these two communications were the only statements that the Court interpreted as indicating termination — as opposed to a much larger set of statements which the Court acknowledged indicated suspension. As such, the Court’s identification of an ambiguity here (para. 210) is perhaps exaggerated and the evidence on this point is far more strongly suggested that India intended to interpret ‘abeyance’ as akin to suspension than to termination.

Second, the Court searched for references to ‘abeyance’ in international law more broadly. Here, it found that the term is not commonly used in international law (paras. 211-213), barring a few exceptions where ‘abeyance’ has been used to connote a temporary and suspensory effect (paras. 214-215). On this basis, the Court acknowledged that it is likely that holding a treaty in abeyance is akin to suspending a treaty since suspensions temporarily pause the performance of treaty obligations unlike terminations which permanently extinguish the treaty obligations itself (para. 216; Yearbook of the ILC (52^nd Session), p. 265 at para. 69). 

Finally, the Court considered the interpretation and treatment of the term in the domestic law of India. Drawing on the judicial precedent and interpretive practices of the Indian Supreme Court, it found that “the term ‘abeyance’ […] has been used synonymously with a temporary “stay” of proceedings, or a temporary “stay” of the effect of an order” (para. 219). Consequently, the Court noted that this aligned ‘abeyance’ closely to the concept of a suspension (para. 220). 

Notwithstanding the above, the Court ultimately refused to offer a conclusive interpretation of ‘abeyance’ as having the same legal meaning and effects as a suspension. Instead, it justified its holding that ‘abeyance’ cannot be conclusively interpreted on the basis that, absent the term having a technical meaning under international law, no conclusive finding can be made “given the lack of a formal legal analysis by India as to how its decision is to be understood with respect to international law” (para. 220). However, limiting the interpretation exercise to a State’s self-interpretation of the meaning and effects of its statements in this manner is not only inconsistent with the Court’s three-pronged exercise, but also an incorrect application of doctrine and unsound policy.

The Doctrinal Irrelevance of a Formal Legal Analysis by India 

The Court’s central reliance on the lack of a formal legal analysis by India of its use of ‘abeyance’ as the sole reason for refusing to offer a conclusive interpretation is puzzling because it is trite that international courts and tribunals are neither dependent nor bound by a State’s proffered legal analysis in reaching its conclusions. In Nicaragua, for example, the ICJ confirmed that “the principle of jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it […] so that the absence of one party has less impact” (para. 29). This principle of jura novit curia thus posits that courts are free to determine the legal foundations and conclusions for its judgements on its own initiative irrespective of the parties’ analysis (or lack thereof) (para. 17). 

Applying this principle to the present case then, the lack of a formal legal analysis by India ought not to have been the decisive factor in interpreting the meaning of ‘abeyance’ since the Court is free to interpret the term independently and irrespective of India’s non-explanation.  

It is likely, however, that the Court did not apply this principle and chose to defer to the lack of an Indian analysis because it considered what India meant by ‘abeyance’ to be a question of fact and not of law. For instance, in the context of discussing India’s own statements, the Court referred to the meaning of the term “as a factual matter” (para. 210). Treating the interpretive exercise as such, it would not be unusual to refuse to offer a determinative conclusion absent Indian participation. In Eastern Carelia, for instance, the PCIJ similarly treated a Russian declaration in relation to the Treaty of Dorpat (between itself and Finland) as a question of fact (p. 26) and refused to render an advisory opinion as to the effects of that declaration absent Russian consent (p. 27).   

Even so, however, the jura novit curia principle arguably remains applicable since exercises such as interpreting State practice or the meaning of a State’s actions are not purely factual matters in the sense of establishing findings of fact. Instead, the interpretive exercise in such cases involves identifying the legal characterisation of a fact. This is because when interpreting actions such as holding a treaty in ‘abeyance’, the adjudicatory objective is not only to decipher the meaning attributed to it by India as a matter of fact, but also to interpret its legal effects and consequences under international law. Under international law, the jura novit curia principle continues to apply to such interpretive exercises “since [by virtue of the jura novit curia principle] the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by [the parties]” (Guerra v Italy (ECtHR), para. 44). 

This position also ought not to be affected by the PCIJ’s reasoning in Eastern Carelia due to two points of distinction. First, the question in Eastern Carelia was far more a question of pure fact than the one presented here. This is because in that case – unlike in Pakistan v India – determining the legal effects of the Russian declaration depended not only on an interpretation of the declaration and the concerned treaty, but also required findings of facts surrounding and underlying the making of the declaration. As the PCIJ noted, therefore, the question related not just to the effect of the Russian declaration but more fundamentally to whether, in the purely factual context surrounding the negotiation and drafting of the Treaty of Dorpat, “was such an engagement made” between Russia and Finland to the effect that the Russian declaration was incorporated as an obligatory part of the treaty (p. 26). This is not the case in Pakistan v India since the interpretation of ‘abeyance’ does not necessarily turn on any findings of facts surrounding India’s usage of the term. Second, even if it is argued that there is little distinction between the inquiries in the two cases, Eastern Carelia cannot properly be read as barring a court’s ability to engage in the interpretive exercise absent a formal legal analysis or participation by the concerned State. This is because in Eastern Carelia, the lack of Russian consent was material not because it rendered the PCIJ’s judicial ability to interpret the declaration, but because it entirely precluded the court’s advisory jurisdiction (p. 27). In Pakistan v India, however, the Court’s jurisdiction and competence are not in question, and it has already been confirmed in a prior award that India’s non-participation in the proceedings does not bear on this issue.

As such, the lack of a formal legal analysis by India is not strictly necessarily and does not preclude a conclusive finding due to the jura novit curia principle even if the Court considered the meaning of ‘abeyance’ to be a matter of fact insofar as differing meanings would be regulated by differing legal regimes and produce differing legal effects.

The Policy Implications and Imprudence of an Inconclusive Finding

Of course, in Pakistan v India, the Court confirmed that the legal effects would be identical irrespective of the meaning attributed to ‘abeyance’ since India had neither grounds to suspend nor terminate the treaty (para. 326). Consequently, the Court’s failure to apply the principle of jura novit curia did not, per se, lead to any doctrinal errors insofar has any interpretation adopted would have produced identical legal effects. Ostensibly, the Court was conscious of this immateriality of the interpretive result and thus chose to exercise caution and tactical deference by allowing India the benefit of the ambiguity. In doing so, the Court did succeed in rendering a more complete holding which maintains resilience irrespective of what interpretation of ‘abeyance’ is adopted. It was able to do this because the final result did not depend on the outcome of the interpretation of ‘abeyance’. Nevertheless, in future cases where the result may be decided by the interpretive exercise, there exist two potent policy implications should courts fail to reach conclusive interpretations due to a policy of caution and deference as in Pakistan v India.

First, of course, by adopting a judicial policy of depending on and deferring to non-cooperative States’ own legal analyses of their actions to reach a conclusive interpretation, courts can inadvertently incentivise further non-cooperation with judicial proceedings by enabling them to handicap international courts’ interpretive powers by simply refusing to make representations.

Second, and more significantly, by failing to engage in an independent interpretive exercise when confronted with legally relevant but obscure or unusual terminology, courts may restrict international law’s normative coverage and ability to regulate the conduct of international relations. This is because, ultimately, international law is a language for international relations (see here and here). As such, the ability of international law to rationalise and regulate the conduct of international relations relies fundamentally on there being a convergence of vocabulary between the two disciplines since international law can only regulate what it understands. Megan Donaldson has thus noted the strains that arise in the normativity of international law when the vocabulary of international relations diverges from that of international law. Consequently, when international courts and tribunals fail to conclusively interpret such obscure or unusual terminology being deployed by States in the conduct of their international relations, it opens the door for the vocabulary of international relations to grow beyond and separately to the pre-existing vocabulary of international law. In other words, it results in international law failing to keep pace with the growing vocabulary of international relations. This then threatens the normative coverage of international law insofar as it creates gaps between what States may do and what international law understands and regulates. 

Instead, when presented with interpretive dilemmas such as those in Pakistan v India, courts must consider these ‘market opportunities’ to expand the vocabulary and language of international law. This would not only strengthen legal certainty and normative regulation in the future conduct of international relations, but ensure that States cannot maintain and exploit deliberately manufactured legal ambiguities by deploying novel non-legal terminology in the conduct of their international relations.

Author’s Note: The author would like to thank Miles Jackson for his comments on an earlier draft, and the improvements to the piece as a result of the Opinio Juris reviewer. 

Photo attribution: “Indus River Skardu Gilgit-Baltistan, Pakistan” by Furqanlw is licenced under Attribution-ShareAlike 4.0 International