Lawfare strategy: The dispute over the Indus Waters Treaty has moved well beyond water. After the Pahalgam terrorist attack of April 22, 2025, India announced that the 1960 treaty would be held in abeyance until Pakistan “credibly and irrevocably” ended its support for cross-border terrorism. The legal contest has continued. A Court of Arbitration constituted under the treaty has proceeded with the case, while India rejects the tribunal’s legitimacy and maintains that the treaty remains in abeyance. That disagreement persisted into 2026, when the tribunal issued another award concerning the permissible pondage of Indian hydroelectric projects and New Delhi rejected it as null and void.
This is a useful illustration of how power is exercised in contemporary international relations. Military strength and diplomacy remain indispensable, but treaties, domestic courts, arbitral bodies, sanctions regimes and competing interpretations of international law increasingly determine what states can do and how their actions are perceived.
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The strategic use of these instruments is commonly described as lawfare. India has practised elements of it for years. What it lacks is a coherent doctrine that brings international law into foreign and security policy at the stage when policy is made, rather than after disputes have begun.
Law as an instrument of statecraft
Charles J. Dunlap Jr. popularised the contemporary national-security use of the term “lawfare” in the early 2000s. His formulation has evolved, but its essential idea is the use of law to achieve objectives that might otherwise require conventional coercive power.
The definition needs care. A state defending its rights before an international tribunal is exercising law, not necessarily waging lawfare. Nor should every inconvenient legal challenge be dismissed as an adversary’s weapon. International law has value precisely because it constrains strong and weak states alike.
Lawfare becomes strategically important when governments anticipate those constraints, shape legal rules, choose jurisdictions and procedures intelligently, and use legal arguments as part of a wider foreign-policy objective. The contest concerns legitimacy as much as litigation.
American experience offers an instructive example. Former US President George W. Bush cancelled a planned visit to Geneva in 2011 when human-rights groups were preparing complaints concerning alleged torture. Contemporary accounts differ over how much the legal threat, as distinct from expected protests, influenced the cancellation. It would therefore be excessive to say that universal jurisdiction forced Bush to stay away. What the episode demonstrated was that domestic legal procedures abroad could create costs even for a former leader of the world’s most powerful country.
Washington had already responded to a different legal vulnerability through bilateral agreements associated with Article 98 of the Rome Statute. By May 2005, the United States said it had concluded its 100th such agreement. Their purpose was narrower than sometimes claimed: they sought to prevent partner states from surrendering US persons to the International Criminal Court without American consent. They did not confer general immunity from foreign legal proceedings.
The distinction matters. Effective lawfare depends on knowing what the law actually permits. Exaggerated claims weaken rather than strengthen a state’s position.
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Indus Waters Treaty is now a legal contest
The Indus Waters Treaty provides India with an immediate test.
Article XII says its provisions may be modified through a duly ratified treaty between the two governments and shall remain in force until terminated by another duly ratified treaty concluded for that purpose. There is no express mechanism labelled “abeyance”. India therefore needs a legal case for its decision that rests outside the treaty’s ordinary termination provisions.
One possible line of argument concerns the doctrine of fundamental change of circumstances. Article 62 of the Vienna Convention on the Law of Treaties allows such a change to be invoked in tightly defined circumstances, including where the original circumstances constituted an essential basis of consent and the subsequent change radically transforms obligations still to be performed. It also permits suspension where its requirements are satisfied. The conditions are deliberately demanding.
India is not a party to the Vienna Convention, although many of its principles are treated as reflecting customary international law. The UN Treaty Collection does not list India among the convention’s parties.
This leaves room for a serious Indian legal argument, but not an easy one. The treaty’s preamble records that India and Pakistan entered the arrangement in a spirit of goodwill and friendship. India could contend that sustained cross-border terrorism has fundamentally altered the political circumstances in which continued treaty cooperation was envisaged. Pakistan and other critics can answer that water-sharing obligations were deliberately insulated from recurring political hostility and that the threshold under the doctrine of changed circumstances is exceptionally high.
Those arguments should be met in full. India gains little from treating criticism as propaganda when some of it raises genuine questions of treaty law.
The need is particularly evident because the treaty dispute has several legal tracks. India has objected to the Court of Arbitration while participating in proceedings before a Neutral Expert. The Court of Arbitration has continued to issue decisions despite India’s non-participation. A country that disputes the jurisdiction of a tribunal still needs a detailed legal record explaining why. Silence can have diplomatic consequences even when it reflects a principled jurisdictional objection.
New Delhi should therefore assemble a standing group of international-law specialists to work alongside the ministries of external affairs, law, defence and other departments dealing with treaty disputes. Its job should extend beyond producing briefs once litigation has started. It should identify legal vulnerabilities before major foreign-policy decisions are taken.
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China poses a wider challenge
China makes the case for such capacity stronger.
India has repeatedly rejected Beijing’s attempts to assign Chinese names to places in Arunachal Pradesh. The Ministry of External Affairs has stated that invented names do not alter India’s sovereignty over the state. The issue may look cartographic, but maps, nomenclature and administrative practice can form part of a longer argument about sovereignty.
The border dispute has a more concrete legal history. India has said that China’s troop build-up in 2020 violated the 1993 and 1996 agreements intended to maintain peace and tranquillity along the Line of Actual Control. A systematic Indian record of alleged breaches, diplomatic protests and interpretations of these agreements would strengthen the country’s position well beyond individual rounds of military talks.
The China-Pakistan Economic Corridor raises another issue. India’s stated position is that CPEC projects pass through parts of Jammu and Kashmir and Ladakh under Pakistan’s occupation and therefore impinge upon Indian sovereignty. New Delhi has conveyed this objection repeatedly to Beijing.
These positions should form part of a larger legal strategy rather than remain dispersed across press statements and parliamentary answers. Treaty interpretation, maps, state practice and formal diplomatic objections accumulate over time. Governments that build the legal record early are better placed when a dispute reaches a court, tribunal or multilateral institution years later.
India needs legal capacity, not legal adventurism
A lawfare strategy should not mean filing speculative lawsuits around the world or encouraging private organisations to harass opponents through litigation. That approach could damage India’s credibility and invite reciprocal action.
There are more useful priorities.
Foreign ministries increasingly require lawyers who understand public international law alongside specialists in technology regulation, investment arbitration, sanctions, trade rules and cross-border finance. India should create a larger cadre with these skills and ensure that they participate in negotiations before commitments become difficult to reverse.
Universities also matter. India produces large numbers of lawyers, but its strategic requirement is narrower: specialists capable of handling treaty negotiations, interstate arbitration and complex disputes involving several jurisdictions. Dedicated research centres and stronger postgraduate programmes in international law would help create that pool.
The government also needs an institutional system for identifying where foreign domestic law can affect Indian interests. Terror financing, economic sanctions, export controls, asset seizures and corporate liability increasingly operate through national legal systems with international consequences. India should understand those regimes as thoroughly as countries that routinely use them.
Most important, lawfare cannot become a synonym for finding a convenient legal justification after policy has been decided. A country seeking greater influence over international rules gains credibility when its arguments remain defensible even when the immediate political advantage is removed.
India already has disputes in which law and geopolitics are inseparable. The Indus Waters Treaty is now one of them. CPEC and the China border supply others. The choice before New Delhi is therefore less about whether it should weaponise international law than about whether it develops the expertise to use law intelligently, defend its interpretation of existing rules and participate more effectively in writing the rules that come next.
The author is a lawyer based in Mumbai.