Treading the Grey Zones of International Law: India’s Responses after the Pahalgam Attack

On the afternoon of 22 April 2025, the tourist town of Pahalgam in the Indian Union Territory of Jammu and Kashmir witnessed one of the deadliest terrorist attacks. The armed terrorists targeted 25 Hindu and Christian tourists, while one local Muslim pony operator was also shot dead. In its response, India resorted to a military campaign, called Operation Sindoor, against the terrorist infrastructure reportedly operating from Pakistan’s territory. The situation escalated when Pakistan responded to Operation Sindoor with drone attacks and India’s counter-response, which targeted Islamabad’s military installations. Eventually, a both sides agreed to stop all firing and military action on 10 May 2025.

As a result of the attacks, India suspended procedural cooperation under the Indus Waters Treaty (IWT) of 1960 until the treaty is renegotiated and Pakistan ceases its support for cross-border terrorism on Indian soil. Second, India asserted that it will no longer tolerate future terrorist attacks, and any cross-border terror attack will be considered an ‘act of war’. New Delhi’s actions reflect a strategic utilisation of the grey zones in international law to convey political messages to Pakistan.

New Delhi’s actions reflect a strategic utilisation of the grey zones in international law to convey political messages to Pakistan.

This blog examines India’s decision to put the IWT in ‘abeyance’ and exercise its ‘right to respond’ to terrorist attacks from Pakistan and Pakistan-occupied Jammu and Kashmir (PoJK). This analysis concludes that India has strategically engaged international law through implied rather than explicit legal reasoning. While avoiding formal legal claims, India’s actions nonetheless carry normative implications—reflecting a cautious effort to balance operational flexibility with the risks of setting precedents that could be used by other states.

 Abeyance of the IWT

 The IWT, facilitated by the World Bank in 1960, represents one of the most robust water-sharing agreements globally. The agreement divides six rivers of the Indus system, where India has exclusive rights over the eastern rivers, the Sutlej, the Beas, and the Ravi. Pakistan has similar rights over the western rivers, the Indus, the Jhelum, and the Chenab. The institutional framework of the IWT established a Permanent Indus Commission to oversee the treaty’s implementation and an elaborate dispute settlement mechanism to resolve any differences that may arise. Remarkably, Article XII of the IWT, which deals with general provisions, does not permit unilateral suspension, termination or withdrawal from state parties. In this context, India’s decision to place the treaty in ‘abeyance’ deviates from the provisions of the IWT.

By putting the treaty in ‘abeyance,’ India has neither withdrawn from the IWT nor altered the course of the Indus rivers. Instead, New Delhi will stop exchanging data concerning the IWT’s operation, withhold technical cooperation and notification, and refrain from participating in the dispute resolution mechanisms.

While the term ‘abeyance’ connotes a state of temporary inactivity, it is not a legally recognised term in international law. Neither the IWT nor the Vienna Convention on the Law of Treaties, 1969 (VCLT) refer to ‘abeyance’ as a mechanism to suspend treaty obligations.

Without formally denouncing the IWT, India has circumvented the treaty’s suspension procedures, which require the consent of both parties to suspend or terminate the treaty under Article XII. India has also skilfully embraced procedural ambiguity by invoking the doctrine of rebus sic stantibus under Article 62 of the VCLT. Simply put, this refers to a fundamental change in circumstances, which permits a party to the treaty to terminate or withdraw from the treaty. The official notification addressed to Pakistan identifies altered population dynamics and the advancement of clean energy development as fundamental changes in circumstances, necessitating renegotiation of the treaty.

By putting the treaty in ‘abeyance,’ India has neither withdrawn from the IWT nor altered the course of the Indus rivers. Instead, New Delhi will stop exchanging data concerning the IWT’s operation, withhold technical cooperation and notification, and refrain from participating in the dispute resolution mechanisms. In addition, procedural cooperation is suspended until the IWT is renegotiated and Pakistan ceases its support for cross-border terrorism. While India has been trying to renegotiate the IWT since 2023, Pakistan is unwilling to come to the table. So, the IWT’s suspension becomes crucial as Pakistan relies heavily on the Indus river for its agriculture and economy. The information about the flow of the Indus enables Pakistan plan for its agricultural and economic growth.

India faces a significant threshold when invoking rebus sic stantibus. For instance, in the Gabčíkovo-Nagymaros Project case of 1977 Hungary and Slovakia jointly notified the International Court of Justice (ICJ) about certain differences on the Budapest Treaty of 1977 regarding the implementation and termination of the Gabčíkovo-Nagymaros Barrage System.  The ICJ rejected Hungary’s claim of fundamental political and economic changes (para. 104) as it was unrelated to the Budapest Treaty’s object and purpose. Similarly, the court dismissed the claim of new developments in environmental law and environmental knowledge, considering them as probable changes in the future (para. 104). The high threshold set by the ICJ in the Gabčíkovo-Nagymaros Project case would make it difficult for India to argue population dynamics and advancement of clean energy as fundamental changes.

Nevertheless, it is implausible that the issue of the IWT would go before the ICJ. The dispute resolution mechanism under the IWT does not reference settling any differences before the ICJ. Instead, the IWT establishes a graded system, which involves submitting disputes to the Indus Water Commission, subsequently to a neutral expert, and finally to a court of arbitration if the issue remains unresolved. Due to India’s non-participation in the Permanent Court of Arbitration proceedings and plans to exit the World Bank’s neutral expert proceedings, the dispute mechanisms under the treaty are currently in limbo.

Right to Respond and Pre-empt Cross-Border Attacks 

 India’s utilisation of the grey areas of international law is further exemplified by the statements it made following Operation Sindoor on 7 May 2025.  The military campaign targeted four locations in Pakistan and five locations in PoJK reportedly housing terrorist infrastructure. Following the success of Operation Sindoor, India’s Foreign Secretary asserted that India exercised its ‘right to respond’ to ‘pre-empt’ and deter cross-border attacks. In addition, India briefed members of the United Nations Security Council (UNSC), barring Pakistan, about the actions that it had taken against the terrorists. While this suggests a subtle reference to the right of self-defence as outlined in Article 51 of the United Nations Charter (UNC), India seems to refrain from making this suggestion explicit. Four crucial points may be noted in this regard.

First, India did not categorise the Pahalgam incident as an armed attack. This is could arguably be on two grounds. First, due to uncertainty on whether an armed attack carried out by a non-state actor may invoke the doctrine of self-defence, as discussed below. Second, due to the high threshold of what constitutes an armed attack. As per the ICJ in the Nicaragua Case, 1986 (paras. 191 and 195), self-defence may be invoked against the most grave forms of force, which are determined by the gravity of the attack, measured by the scale and effects of the use of force. The Pahalgam attack, which led to the death of 26 individuals, may arguably not meet this high threshold established by the ICJ. A counterargument is that the Pahalgam attack should not be analysed in isolation. It should be assessed in the context of the numerous other attacks by Pakistani terrorists on Indian soil, including the Pulwama attack, the Uri attack, the 26/11 attack and the 2001 Parliament attack. In this regard, the accumulation of events theory (Tams, at 288) posits that small-scale attacks could collectively constitute an armed attack for self-defence. Although contentious, the ICJ has alluded to the accumulation of events theory in the Oil Platforms Case (para. 64) and the Armed Activities Case (para. 146). However, India has not relied on the accumulation of events theory to justify its actions.

Second, the attribution of the actions of The Resistance Force (TRF), an offshoot of the Pakistani terrorist group Lashkar-e-Taiba (LeT), to Pakistan is missing. The TRF initially claimed responsibility for the Pahalgam attack and later rescinded it. To overcome the breach of territorial sovereignty, jus ad bellum, or the conditions under which states may use force, requires a victim to attribute the activities of a non-state actor to a state to invoke self-defence. As per international jurisprudence, a state should either have ‘effective control’ (Nicaragua Case, 1986, paras. 105 – 110) or ‘overall control’ (Tadic Case (Appeal Judgment), paras. 116 – 123) of the actions of the non-state groups. Attribution of the conduct of non-state actors under the effective control test is based on a high threshold, requiring the state to direct or control specific operations. In contrast, the overall control allows attribution when a state organizes, supports and coordinates the activities of a non-state actor, even if it does not control every aspect of the operation. In addition, attribution under Article 8 of the Responsibility of States for Internationally Wrongful Act requires a state to provide instructions, direction or have control of the actions by the non-state group. So, attribution either requires clear evidence that a state directed or controlled specific operation in question or coordination of activities with a non-state actor. Mere harbouring or ideological sympathy – without proof – is insufficient to justify self-defence. While the link between Pakistan’s Inter-Services Intelligence with the LeT has been previously established, India still needs to attribute the acts of the TRF with Pakistani government entities. Compounding this challenge is that the terrorists responsible for the Pahalgam attack were killed by Indian forces on 28 July 2025 in what is labelled as ‘Operation Mahadev’ without any interrogation. Against this context, while India was shaming Pakistan for cross-border terror attacks, it has not directly attributed the attacks to the Pakistani army or government. India’s Foreign Secretary has asserted that India’s response to the Pahalgam terrorist attack was directed towards non-civilian, non-military targets; and confined to terrorist camps. The specific use of these terms implies that India does not view its initial military operations against terrorist infrastructure in Pakistan through the prism of self-defence, which may violate Pakistan’s territorial sovereignty.  It was only when Pakistani armed forces started attacking Indian territory, New Delhi resorted to attacking military targets in the subsequent days.

By not explicitly relying on the UNC framework on self-defence, India seems to be using the grey areas of the law on self-defence to carry out its long-standing objective of dismantling terrorist infrastructure in Pakistan. This is important in light of India’s recent assertion that any future terrorist attack emanating from Pakistan will be considered an ‘act of war’.

Third, India veiledly referenced the ‘unable or unwilling doctrine’ without explicitly invoking it. General international law imposes certain obligations on states regarding non-state actors within their territory. States are obliged to refrain from assisting non-state actors in carrying out armed activities against another state and ensure that their territories are not used to conduct armed attacks against another state. If the state is unable or unwilling to take effective action against the non-state actors, forcible action against the non-state actors in self-defence may be permissible. This doctrine is not only subscribed to by the United States, the United Kingdom and Australia, but also endorsed in the Chatham House Principles (at 969), the Leiden Policy Recommendations (para. 42) and the Bethlehem Principles (Principles 11 and 12). Although the Pahalgam incident would be a clear-cut exemplification of the unable or unwilling doctrine, India stated that “there has been no demonstrable step from Pakistan to take action against the terrorist infrastructure on its territory or on territory under its control.” India’s unwillingness to explicitly subscribe to the unable or unwilling doctrine aligns with its previous positions. As noted by Burra, although India was informed of its right to self-defence by the United States after the Balakot strikes in 2019, it risked being accused of committing an act of aggression instead of invoking the unable or unwilling doctrine. Similarly, the official categorisation of the military operations of 2016 is referred to as surgical strikes.

Fourth, the contours of India’s briefing to the members of the UN Security Council (UNSC) following Operation Sindoor remain ambiguous. Article 51 UNC offers no guidance on the obligation to report self-defence claims to the UNSC. However, state practice from the Congo (S/2004/489), Iran (S/1999/781), and Israel (S/2010/21) suggests that the language of Article 51 plays a crucial role in invoking the right to self-defence. India has reportedly informed 13 out of 15 members of the UNSC (barring Pakistan and Sierra Leone) about the targeted, measured and non-escalatory measures aimed at deterring and pre-empting further terror attacks. Yet, the language employed does not reflect its reliance on the argument of self-defence under Article 51.

By not explicitly relying on the UNC framework on self-defence, India seems to be using the grey areas of the law on self-defence to carry out its long-standing objective of dismantling terrorist infrastructure in Pakistan. This is important in light of India’s recent assertion that any future terrorist attack emanating from Pakistan will be considered an ‘act of war’.

India could adopt a dual-track strategy. While retaining flexibility in bilateral and operational contexts, it can begin clarifying its legal views in selective multilateral forums—such as the UN General Assembly or other multilateral debates—on issues like treaty adaptability, attribution standards for non-state actors, or the threshold for self-defence.

Understanding India’s Actions under International Law

India’s response to the Pahalgam terror attack reflects a carefully calibrated engagement with international law—one that leverages legal norms without fully committing to unsettled doctrines. By invoking ideas like rebus sic stantibus and the ‘right to respond’, India signals a willingness to act within a legal frame while avoiding rigid precedent that might constrain future policy.

Arguably, this strategic ambiguity is not without consequence. Even when not formally claimed, legal reasoning can contribute to precedent and shape international expectations. Two risks may be noted: weakening the clarity of legal standards India itself might wish to invoke in the future; and opening the door for other states to adopt similarly ambiguous approaches in ways India may oppose.

To address this, India could adopt a dual-track strategy. While retaining flexibility in bilateral and operational contexts, it can begin clarifying its legal views in selective multilateral forums—such as the UN General Assembly or other multilateral debates—on issues like treaty adaptability, attribution standards for non-state actors, or the threshold for self-defence. Doing so would allow India to shape evolving norms while preserving space for context-driven responses.

India has the opportunity to engage more assertively in shaping international law in areas aligned with its security and development interests. By contributing to normative clarity where it matters most, India can safeguard its strategic autonomy while reinforcing its role as a responsible actor in the international legal order.