Indus Waters Treaty After India Rejects the 2026 Arbitral Award
- Edmarverson A. Santos
- 3 hours ago
- 36 min read
Introduction
On 31 August 2026, the Court of Arbitration constituted under the Indus Waters Treaty held that the treaty remains in force despite India’s decision to place it “in abeyance.” The Court also issued interim measures concerning the construction of the Ratle Hydro-Electric Plant on the Chenab River, one of the treaty’s Western Rivers. India rejected the decisions, maintaining that the Court had been constituted contrary to the treaty, lacked jurisdiction, and could not determine the legal consequences of what New Delhi characterizes as a sovereign decision concerning treaty performance (Court of Arbitration, 2026; Ministry of External Affairs of India, 2026).
The dispute reaches beyond the legality of particular hydroelectric designs. In April 2025, India announced that the treaty would remain in abeyance until Pakistan, in India’s formulation, “credibly and irrevocably abjures its support for cross-border terrorism.” Pakistan rejects both the allegation and India’s asserted power to suspend the agreement unilaterally. The resulting legal question is unusually direct because Article XII(4) provides that the Indus Waters Treaty “shall continue in force until terminated by a duly ratified treaty” concluded between the two governments for that purpose (Indus Waters Treaty, 1960, art. XII(4)).
Article XII does not, however, exhaust the international-law inquiry merely because the treaty contains no express unilateral abeyance clause. General international law recognizes narrowly defined grounds associated with treaty suspension or termination, including material breach, impossibility of performance, and fundamental change of circumstances. Necessity and countermeasures belong principally to the law of state responsibility and may, where their separate conditions are satisfied, affect the legality of temporary non-performance without extinguishing the treaty itself. The Vienna Convention on the Law of Treaties does not govern the 1960 IWT as treaty law: the agreement predates the Convention, and the Convention does not bind India and Pakistan inter se. Particular VCLT provisions remain relevant only insofar as they reflect customary international law applicable independently of the Convention.
The controversy also concerns the allocation of adjudicative authority under Article IX. The treaty distinguishes matters handled by the Permanent Indus Commission, a Neutral Expert, and a Court of Arbitration. India initiated and initially participated in the Neutral Expert proceedings but later stopped participating after placing the treaty in abeyance. It has continued to maintain that the Neutral Expert mechanism, rather than the parallel arbitration initiated by Pakistan, was the treaty-consistent process for the disputed technical issues. The Court rejected India’s jurisdictional objections in its 2023 Award on Competence and later held that India’s 2025 abeyance declaration did not deprive it of competence to continue the proceedings (Court of Arbitration, 2023; Court of Arbitration, 2025).
The institutional distinction is significant. The adjudicative body is the Court of Arbitration constituted pursuant to the Indus Waters Treaty; the Permanent Court of Arbitration provides registry and secretariat services but does not itself decide the dispute. India does not deny that the IWT contains dispute-settlement provisions. Its objection is narrower: it maintains that this particular Court was constituted contrary to Article IX and consequently lacks jurisdiction. The Court has reached the opposite conclusion, finding that the treaty supplied the necessary consent and that the arbitration was validly constituted.
Ratle gives these questions immediate practical consequences. The treaty gives Pakistan unrestricted use of the waters of the Western Rivers that India is required to let flow, while permitting specified Indian uses, including hydroelectric generation subject to Annexure D (Indus Waters Treaty, 1960). The dispute is not whether India may construct hydroelectric projects on those rivers at all, but whether their design and operation comply with negotiated treaty limits and which treaty mechanism has authority to determine compliance. India’s rejection of the 2026 award consequently leaves two distinct issues: the continuing legal force of the treaty and its arbitral decisions, and the consequences of non-performance if India acts contrary to obligations that the treaty-created Court considers binding.
1. What the 2026 Arbitral Award Changed
The decisions issued on 31 August 2026 altered the legal posture of the India–Pakistan water dispute. Earlier stages of the Western Rivers Arbitration had concentrated on the Court of Arbitration’s competence and on the interpretation of provisions governing Indian hydroelectric projects on the Western Rivers. India’s April 2025 declaration that the Indus Waters Treaty would be placed “in abeyance” introduced a more fundamental question: whether one party could alter the continuing legal status of the treaty by unilateral action.
The Court addressed that development through two distinct decisions. According to the official announcement of the Permanent Court of Arbitration, the Court issued an Award on the Status of the Indus Waters Treaty and a separate Order on Interim Measures concerning the Ratle Hydro-Electric Plant (Permanent Court of Arbitration, 2026a). The first concerned the continuing operation of the treaty following India’s abeyance declaration. The second addressed construction at Ratle while related technical issues remain before the Neutral Expert.
This distinction separates the August decisions from the Court’s earlier jurisprudence. In 2023, the principal issue was whether the Court had been validly constituted and possessed competence over Pakistan’s claims. In 2025, the Court considered the effect of India’s abeyance declaration on that previously established competence and separately interpreted substantive provisions governing hydroelectric development. The 2026 status award placed the legal existence and continued operation of the treaty itself at the center of the proceedings.
1.1 The Award on the Treaty’s Legal Status
The official account of the 31 August decision records the Court’s conclusion that the Indus Waters Treaty remains in force notwithstanding India’s unilateral declaration of abeyance. Contemporary reporting further records the Court’s position that India lacked a legal basis unilaterally to suspend or terminate the agreement and remained subject to its obligations (Permanent Court of Arbitration, 2026a; Reuters, 2026).
That question differed from the one addressed in the Supplemental Award on Competence of 27 June 2025. Following India’s April 2025 declaration, the Court examined whether the claimed abeyance affected its authority to continue proceedings that Pakistan had instituted years earlier. It held that the declaration did not deprive the Court of competence and that a unilateral act by one party could not extinguish jurisdiction already established under the treaty mechanism (Court of Arbitration, 2025).
The 2026 decision reaches beyond the continued jurisdiction of the arbitral body. A tribunal might retain jurisdiction over a dispute concerning past conduct even if the underlying treaty later ceased to operate. The status award addresses the antecedent question of whether the treaty itself continues to govern India and Pakistan. That finding is especially consequential for current and future Indian activity on the Western Rivers because the substantive restrictions of the IWT remain legally relevant if the treaty remains operative.
1.2 The Interim Measures Concerning Ratle
The separate Ratle order concerns the physical development of an 850 MW run-of-river hydroelectric project on the Chenab River. Ratle is already part of the technical controversy before the Neutral Expert appointed under the IWT. The Court’s interim measures address specified construction activity while that parallel treaty process remains unresolved (Permanent Court of Arbitration, 2026a; Reuters, 2026).
Contemporary reporting identifies temporary restrictions affecting work on the dam wall and power-intake structure. The measures operate pending the Neutral Expert’s determination and for a specified period afterward (Reuters, 2026). Their immediate legal effect is preservative: construction is temporarily constrained while the treaty mechanism competent to decide the relevant technical questions continues its work.
The order does not amount to a final determination that the Ratle project as a whole violates the IWT. Nor does it prohibit Indian hydroelectric development on the Western Rivers as such. Annexure D expressly permits India to generate hydroelectric power subject to detailed design and operational conditions. The interim order concerns the conditions under which construction may proceed before the outstanding treaty questions concerning Ratle have been finally resolved.
1.3 India’s Formal Rejection of the Decisions
India rejected the 31 August decisions and reiterated its longstanding position that the Court of Arbitration was unlawfully constituted. The Ministry of External Affairs describes the body as an “illegally constituted so-called Court of Arbitration,” denies that it has jurisdiction over India, and maintains that the decision to place the treaty in abeyance remains a sovereign act (Ministry of External Affairs of India, 2026).
The objection predates the 2026 award. India has argued since the parallel proceedings emerged that the treaty did not permit substantially overlapping issues to be pursued simultaneously before a Neutral Expert and a Court of Arbitration. India requested the appointment of a Neutral Expert in 2016 after Pakistan had initiated arbitration, and New Delhi has maintained that the technical design questions belonged within the Neutral Expert process rather than the arbitration.
The Court addressed those objections in its 2023 Award on Competence and unanimously concluded that it was properly constituted and competent to determine Pakistan’s claims. It also held that the initiation and continuation of the Neutral Expert process did not deprive it of competence (Court of Arbitration, 2023). India’s 2026 rejection consequently concerns the effect of jurisdictional determinations already made within the treaty mechanism, while India continues to contest the validity of that mechanism as applied in the present arbitration.
2. The Treaty Rules at the Center of the Dispute
The Indus Waters Treaty establishes a detailed bilateral regime for the Indus river system. Signed by India and Pakistan in 1960, with specified functions assigned to the International Bank for Reconstruction and Development, it allocates water uses, regulates hydraulic works, creates mechanisms for cooperation and data exchange, and establishes procedures for resolving disagreements (Indus Waters Treaty, 1960).
Article II provides that, subject to the exceptions contained in that Article, all waters of the Eastern Rivers—the Sutlej, Beas, and Ravi—are available for India’s unrestricted use. Article III establishes a different arrangement for the Western Rivers: the Indus, Jhelum, and Chenab. Pakistan receives unrestricted use of the waters India is required to let flow, while India retains specified categories of permissible use (Indus Waters Treaty, 1960, arts. II–III).
The present dispute engages several parts of that bargain simultaneously. Ratle is governed principally by Article III and Annexure D. The jurisdictional controversy arises under Article IX and Annexures F and G. India’s abeyance declaration places Article XII, which governs modification and termination, at the center of the treaty-status question. Those provisions operate within a single negotiated regime and cannot be understood as disconnected commitments.
2.1 The Western Rivers and India’s Permitted Uses
Article III requires India to let the waters of the Western Rivers flow and makes those waters available for Pakistan’s unrestricted use, subject to the Indian uses expressly permitted by the treaty. India may undertake domestic use, non-consumptive use, agricultural use within the limits of Annexure C, and hydroelectric generation under Annexure D (Indus Waters Treaty, 1960, art. III(1)–(2)).
The permission to generate hydroelectric power forms part of the original treaty settlement. India’s construction of a hydroelectric project on the Chenab or another Western River is consequently not unlawful merely because the project lies upstream of Pakistan. The legality of a particular plant depends on compliance with the treaty conditions governing its design, storage capacity, operation, outlets, pondage, and other technical characteristics.
Storage is regulated separately and restrictively. Article III(4) provides that India shall not store waters of the Western Rivers or construct storage works on them except as permitted by Annexures D and E (Indus Waters Treaty, 1960, art. III(4)). Ratle accordingly sits within a treaty framework that recognizes Indian hydropower rights while constraining how those rights may be exercised in order to preserve Pakistan’s downstream entitlements.
2.2 Article XII and the Treaty’s Continuity Clause
Article XII distinguishes modification from termination. Paragraph 3 allows modification through a duly ratified treaty concluded between the two governments for that purpose. Paragraph 4 provides that the IWT, including provisions modified under paragraph 3, “shall continue in force until terminated by a duly ratified treaty” concluded between India and Pakistan for termination (Indus Waters Treaty, 1960, art. XII(3)–(4)).
The language establishes continuity as the treaty’s ordinary legal condition and identifies bilateral agreement as its express route to termination. India’s April 2025 declaration was unilateral. Pakistan did not consent to it and has consistently maintained that India could not alter the treaty’s status by placing it in abeyance.
Article XII(4) expressly regulates termination; it does not enumerate every circumstance recognized by general international law that may affect treaty performance. That distinction is important. The absence of an express unilateral suspension clause creates a substantial textual obstacle to India’s position, but the separate question remains whether an exceptional customary rule concerning suspension, termination, or temporary non-performance could apply despite the treaty’s continuity clause.
2.3 The IWT as a Specific International Water Regime
The IWT is a specialized agreement governing a defined international river system. Article XI provides that the treaty governs the rights and obligations of India and Pakistan toward each other concerning the use of the rivers and matters incidental to those uses. It also states that the treaty is not to be construed as establishing a general principle of law or precedent (Indus Waters Treaty, 1960, art. XI).
Its detailed allocation consequently remains the primary legal framework for the waters it regulates. Applicable rules of general international law may supplement the treaty where a matter has not been displaced or specifically regulated by the IWT. They do not replace express provisions governing water allocation, permitted Indian uses, storage, hydroelectric design, or dispute settlement while the treaty remains in force.
This treaty-specific approach constrains both parties. Pakistan cannot treat every Indian use of the Western Rivers as incompatible with its downstream interests when the IWT expressly authorizes specified Indian uses. India, for its part, cannot rely solely on upstream territorial sovereignty where it has accepted detailed international restrictions on the design and operation of projects affecting those rivers. The legal starting point remains the bargain embodied in the treaty.
3. Can India Suspend the Indus Waters Treaty?
India’s use of the term “abeyance” does not itself determine the legal character of its April 2025 decision. International law distinguishes among termination, suspension, withdrawal, and temporary non-performance. Each category has different conditions and consequences, and the terminology chosen by a government cannot independently create a legal power that the treaty or general international law does not recognize.
Termination ends the future operation of a treaty subject to the consequences recognized by the law of treaties. Suspension leaves the treaty in existence while temporarily releasing the parties, or particular parties, from performing specified provisions during the period of suspension. A circumstance precluding wrongfulness under the law of state responsibility operates differently: the underlying obligation remains in existence even though non-performance may be excused for as long as the relevant conditions are satisfied (Vienna Convention on the Law of Treaties, 1969, arts. 70, 72; ILC, 2001).
The legal question is consequently whether India’s conduct can be located within one of those recognized doctrines. Article XII supplies the IWT’s express rules on modification and termination. General international law provides exceptional grounds that may affect the operation or performance of treaties even where a particular agreement does not reproduce those doctrines in its text.
3.1 What “Abeyance” Means in Treaty Law
The IWT contains no provision authorizing either state unilaterally to place the agreement “in abeyance.” The Court of Arbitration made that point expressly in its 2025 Supplemental Award on Competence when considering the effect of India’s declaration on the proceedings. Neither “abeyance” nor an equivalent unilateral suspension mechanism appears in the treaty (Court of Arbitration, 2025).
General treaty law likewise does not recognize “abeyance” as a freestanding category under which a state may stop performing a treaty merely by announcing that status. A unilateral act that has the practical effect of suspending performance must rest on a legal basis recognized by the treaty or by applicable general international law.
The distinction between status and performance is consequential. A treaty can remain legally in force while one party refuses to perform particular obligations. The validity of that refusal is then assessed under the relevant rule invoked to justify non-performance. India’s terminology does not answer either question: it does not establish that the IWT has ceased to operate, and it does not establish that temporary non-performance is lawful.
3.2 Does Article XII Exclude Unilateral Suspension?
Article XII offers strong textual support for treaty continuity. The parties deliberately specified consensual procedures for modification and termination without providing a comparable unilateral mechanism. That structure makes an unrestricted power of unilateral suspension difficult to reconcile with the treaty’s design.
The position under general international law is more qualified. International law recognizes exceptional grounds on which treaty operation may be terminated or suspended even where the treaty does not reproduce those doctrines. Material breach, supervening impossibility, and fundamental change of circumstances are among the grounds reflected in Articles 60–62 of the Vienna Convention, and the International Court of Justice has treated important aspects of those provisions as expressions of customary international law (ICJ, 1997).
Article XII consequently sets the normal regime: continued operation unless India and Pakistan agree on modification or termination through the prescribed form. A state seeking to depart unilaterally from that arrangement must establish a separate rule of international law capable of producing that consequence. The burden is substantially different from asserting a discretionary right to suspend the treaty because bilateral relations have deteriorated.
3.3 The VCLT’s Indirect Role
The Vienna Convention on the Law of Treaties does not govern the IWT directly as treaty law. The IWT was concluded in 1960, nine years before the adoption of the VCLT. Article 4 of the Convention expressly limits its application to treaties concluded after the Convention entered into force for the states concerned, without prejudicing rules applicable independently under international law (Vienna Convention on the Law of Treaties, 1969, art. 4).
The parties’ status reinforces that conclusion. India is not a party to the VCLT. Pakistan signed the Convention on 29 April 1970 but has not ratified it. The VCLT consequently does not operate as a treaty binding India and Pakistan inter se in relation to the IWT (United Nations Treaty Collection, 2026).
Its provisions remain highly relevant where they codify customary international law. The ICJ has relied on the rules reflected in the Convention when addressing material breach, impossibility of performance, and fundamental change of circumstances in cases involving treaties outside the Convention’s direct temporal operation. Each rule must nonetheless be assessed on its own customary status and conditions; VCLT membership cannot simply be assumed.
4. Can Security Grounds Justify Non-Performance?
India linked its April 2025 decision to what it characterizes as Pakistan’s continuing support for cross-border terrorism. That explanation identifies the security context for the decision, but it does not by itself identify the international-law doctrine capable of justifying suspension or non-performance. Treaty law and the law of state responsibility contain several potentially relevant doctrines, each subject to distinct requirements.
India has not participated in the merits phase before the Court of Arbitration and has not presented that Court with a comprehensive pleading invoking material breach, fundamental change of circumstances, impossibility, necessity, or countermeasures as alternative defenses. Those doctrines can be tested against India’s publicly stated justification, but they cannot all be attributed to India as arguments it has formally advanced.
Security considerations are capable of engaging international law. They do not create an unrestricted exception to treaty performance. The relevant question in each instance is whether the factual circumstances satisfy the legal conditions of the particular doctrine relied upon.
4.1 Material Breach and the Terrorism Allegations
A material breach of a bilateral treaty may, under customary treaty law reflected in Article 60 of the VCLT, permit the injured party to invoke the breach as a ground for terminating the treaty or suspending its operation. Article 60 defines material breach as repudiation of the treaty not sanctioned by the Convention or violation of a provision essential to accomplishing the treaty’s object or purpose (Vienna Convention on the Law of Treaties, 1969, art. 60).
India’s public allegation concerns Pakistani support for cross-border terrorism. Even if conduct amounting to an internationally wrongful act were established and legally attributable to Pakistan, the material-breach inquiry would still require a breach of the IWT itself. Article XI confines the treaty relationship to rights and obligations concerning use of the rivers and incidental matters.
The ICJ drew this distinction in Gabčíkovo-Nagymaros. A material-breach claim capable of supporting treaty termination must concern breach of the treaty whose termination is invoked; violations of other international obligations may produce consequences under other rules of international law without becoming material breaches of that treaty (ICJ, 1997). Pakistan also denies responsibility for the conduct alleged by India, so attribution remains a separate factual and legal issue rather than an established premise.
4.2 Fundamental Change of Circumstances
Fundamental change of circumstances offers a different and exceptionally narrow route. The customary rule reflected in Article 62 permits reliance on an unforeseen change only where the circumstances existing when the treaty was concluded constituted an essential basis of the parties’ consent and the change radically transforms the extent of obligations still to be performed (Vienna Convention on the Law of Treaties, 1969, art. 62).
The ICJ has insisted on restrictive application of the doctrine. In Gabčíkovo-Nagymaros, the Court rejected reliance on political, economic, and environmental changes that did not satisfy the required connection with the essential basis of consent or radically transform the remaining obligations. It emphasized that the stability of treaty relations requires fundamental change to remain exceptional (ICJ, 1997, para. 104).
The history of the IWT presents an additional difficulty for a security-based argument. India and Pakistan concluded the agreement after partition and during a period already marked by deep interstate hostility, and the treaty subsequently remained operative through wars and repeated political crises (World Bank, 2026). Current security conditions would still have to be shown to transform the water obligations radically, rather than merely making their performance politically more contentious.
4.3 Impossibility of Performance
Supervening impossibility addresses situations in which performance has become genuinely impossible. The customary rule reflected in Article 61 of the VCLT concerns the permanent disappearance or destruction of an object indispensable for executing the treaty. Where the impossibility is temporary, it may support suspension only for the duration of that condition (Vienna Convention on the Law of Treaties, 1969, art. 61).
Gabčíkovo-Nagymaros confirms the narrow scope of the doctrine. The ICJ rejected Hungary’s impossibility argument because the indispensable object of the treaty had not disappeared or been destroyed. It also emphasized that a party cannot invoke impossibility arising from its own breach of a treaty obligation (ICJ, 1997).
The publicly established circumstances surrounding the IWT do not reveal the disappearance or destruction of an indispensable physical object. The Indus river system continues to exist, and the treaty’s adjudicative mechanisms remain operational through the Court of Arbitration and Neutral Expert proceedings. Political hostility, security concerns, and disrupted cooperation may make performance more difficult, but difficulty falls short of the customary test of impossibility.
4.4 Necessity and the Law of State Responsibility
Necessity belongs primarily to the law of state responsibility. It does not terminate the treaty obligation concerned. The rule reflected in Article 25 of the International Law Commission’s Articles on State Responsibility provides, under stringent conditions, a circumstance capable of precluding the wrongfulness of conduct that would otherwise violate an international obligation (ILC, 2001, art. 25).
The ILC Articles are not themselves a treaty. They combine codification and progressive development, and the customary status of particular provisions must be assessed separately. The ICJ has recognized necessity as a rule of customary international law and has stressed its exceptional character. The act must be the only way to safeguard an essential interest against a grave and imminent peril, must not seriously impair an essential interest of the state toward which the obligation exists, and remains unavailable where the invoking state substantially contributed to the situation (ICJ, 1997, para. 51; ILC, 2001, art. 25).
National-security interests may in principle qualify as essential interests depending on the circumstances. India would still need to establish the remaining elements, including grave and imminent peril and the absence of another means of safeguarding the interest. In the IWT context, any necessity claim would also have to account for Pakistan’s essential interests in access to the Western Rivers. Even if all conditions were satisfied, necessity would concern temporary non-performance while the exceptional circumstances persisted; it would not by itself terminate the treaty.
4.5 Could Abeyance Operate as a Countermeasure?
Countermeasures provide a separate framework for temporary non-performance in response to a prior internationally wrongful act. Under the rules reflected in Articles 49–52 of the ILC Articles, an injured state may temporarily withhold performance of certain obligations owed to a responsible state for the purpose of inducing compliance. Countermeasures must be proportionate, remain temporary, and comply with applicable procedural requirements (ILC, 2001, arts. 49–52).
Applying that framework would first require an internationally wrongful act attributable to Pakistan. The terrorism allegations cannot be treated as established for this purpose, and attribution of conduct by non-state actors to a state is governed by separate rules of state responsibility. A lawful countermeasure would also have to be directed toward inducing compliance rather than punishment and remain commensurate with the injury suffered.
A further constraint is particularly relevant to the IWT dispute. Article 50(2)(a) of the ILC Articles states that a state taking countermeasures is not relieved from obligations under dispute-settlement procedures applicable between the parties. Although the ILC Articles are not themselves a treaty binding India and Pakistan as such, the provision reflects the principle that countermeasures should not disable mechanisms established to resolve the underlying dispute (ILC, 2001, art. 50(2)(a)). A countermeasure theory would consequently differ fundamentally from a claim that the IWT or its dispute-settlement system had ceased to exist.
5. Why Two Treaty Proceedings Exist
India’s jurisdictional objection is rooted in the design of Article IX. The Indus Waters Treaty does not assign every disagreement to a single adjudicative body. It distributes authority among the Permanent Indus Commission, a Neutral Expert, and a Court of Arbitration according to the legal character of the issue and the procedural conditions established by the Treaty (Indus Waters Treaty, 1960, art. IX).
The present institutional conflict developed in 2016. Pakistan instituted arbitration on 19 August, while India requested the appointment of a Neutral Expert in October concerning technical objections to the Kishenganga and Ratle hydroelectric projects. The World Bank initially paused both appointment processes and later resumed them, appointing Michel Lino as Neutral Expert and Sean D. Murphy as Chairman of the Court of Arbitration in October 2022 (World Bank, 2022).
The Bank recognized that concurrent proceedings could generate practical and legal difficulties, particularly because some of the underlying hydroelectric questions overlapped. It nevertheless considered its own functions under the Treaty too limited to authorize it to choose one procedure and terminate the other. The two processes consequently moved forward separately.
India’s objection is best understood against that institutional setting. New Delhi accepts the existence of the IWT’s dispute-settlement machinery but maintains that Pakistan invoked the wrong mechanism for issues that, in India’s view, belonged before the Neutral Expert. The Court has rejected that interpretation, while the Neutral Expert proceeding has continued independently.
5.1 Question, Difference, and Dispute Under Article IX
Article IX begins with a “question.” A question concerning the interpretation or application of the Treaty, or the existence of a fact that might constitute a breach, is initially examined by the Permanent Indus Commission. The Commissioners are required to seek resolution by agreement (Indus Waters Treaty, 1960, art. IX(1)).
Failure to agree produces a “difference.” Certain differences may be referred to a Neutral Expert where they fall within the technical categories listed in Part 1 of Annexure F. Those categories include specified questions concerning the design and conformity of hydroelectric works under Annexure D (Indus Waters Treaty, 1960, art. IX(2); Annexure F).
Annexure F gives the Neutral Expert authority to determine whether the particular difference submitted falls within his assigned competence. That power is narrower than the general competence provision granted to a Court of Arbitration under Annexure G, but it allows the Neutral Expert to decide the threshold classification necessary to exercise his own technical jurisdiction (Indus Waters Treaty, 1960, Annexure F, para. 7).
A difference may instead become a “dispute” capable of engaging the procedures in Article IX(3)–(5). Those provisions contemplate a report by the Commission, negotiations between the governments, possible mediation, and establishment of a Court of Arbitration in the circumstances prescribed by paragraph 5. Article IX(6) expressly provides that paragraphs 3–5 do not apply to a difference while it is being dealt with by a Neutral Expert (Indus Waters Treaty, 1960, art. IX(3)–(6)).
The Treaty consequently creates routes rather than a compulsory sequence through three adjudicative levels. Classification determines the procedure. India’s challenge to the Western Rivers Arbitration rests substantially on its argument that the technical issues submitted by Pakistan could not lawfully be pursued through arbitration while substantially overlapping questions belonged within the Neutral Expert process.
5.2 The Court’s 2023 Competence Award
India declined to appear before the present Court but communicated detailed jurisdictional objections. It argued that Pakistan had failed to follow Article IX correctly, that the Court was not properly constituted, and that the parallel Neutral Expert process demonstrated that the technical matters at issue belonged outside the arbitration (Court of Arbitration, 2023).
The Court addressed those objections in its Award on Competence of 6 July 2023. It held unanimously that India’s non-appearance did not deprive it of competence and that Annexure G empowered the Court to determine questions relating to its own jurisdiction. Pakistan’s claims, in the Court’s view, constituted disputes within Article IX for which arbitration had been validly instituted (Court of Arbitration, 2023).
The Court also rejected the argument that India’s refusal to appoint its two arbitrators prevented lawful constitution of the tribunal. Annexure G contains mechanisms designed to permit constitution and operation despite non-cooperation by one party. The Court concluded that those mechanisms had been satisfied and formally declared itself competent to determine Pakistan’s claims (Court of Arbitration, 2023, para. 318).
Particular attention was given to the Neutral Expert process. Pakistan had instituted arbitration before India requested appointment of a Neutral Expert, and the Court found that the subsequent initiation and continuation of the technical proceeding did not remove or restrict competence already acquired by the Court. India continues to reject that construction of Article IX, but the question is no longer undecided within the Annexure G proceeding.
The significance of the 2023 award is consequently institutional as well as procedural. India maintains that the arbitration was invalid from inception; the body whose competence India disputes has examined that objection under an express treaty provision authorizing it to decide competence and rejected it. That disagreement remains central to India’s response to every later award.
5.3 The 2025 Supplemental Competence Award
India’s declaration of abeyance in April 2025 raised a second jurisdictional problem. The Court had already decided that it possessed competence when the arbitration was instituted. The new question concerned whether a subsequent unilateral act purporting to affect the Treaty’s operation could remove that established authority.
The Supplemental Award on Competence of 27 June 2025 rejected that possibility. The Court assessed its competence by reference to the circumstances existing when Pakistan instituted arbitration and held that India could not subsequently eliminate jurisdiction through unilateral action (Court of Arbitration, 2025a).
The ruling deliberately stopped short of resolving every substantive consequence of abeyance. Jurisdiction could be preserved without first determining the full legal status of the Treaty or deciding whether India possessed any lawful ground for temporary non-performance. Those broader treaty-status questions subsequently became the subject of the 2026 proceedings.
5.4 The Parallel Neutral Expert Proceeding
The Neutral Expert proceeding was initiated by India. India requested the appointment in October 2016 to address Points of Difference concerning technical design features of Kishenganga and Ratle. Following resumption of the appointment processes, the World Bank appointed Michel Lino in October 2022.
The PCA became Registry and Secretariat for the Neutral Expert proceeding in June 2023. That administrative role did not alter the source of decision-making authority: Lino exercises the jurisdiction conferred by Article IX and Annexure F, independently of the Court of Arbitration.
In January 2025, the Neutral Expert issued a decision on competence. He concluded that the specified Points of Difference concerning Kishenganga and Ratle fell within the technical categories assigned to him by Annexure F and could proceed to determination on the merits (Neutral Expert, 2025).
His decision did not purport to invalidate the Court of Arbitration or resolve the competing jurisdictional conclusions reached in the Western Rivers Arbitration. Each body has approached its own competence through the provisions applicable to it. Annexure F, paragraph 11 also gives a Neutral Expert’s decision final and binding effect in respect of the particular matter decided within his competence.
India subsequently informed the Neutral Expert that it would not continue participating while it regarded the IWT as being in abeyance. The Neutral Expert declined to suspend the proceeding, which has continued in India’s absence and remained pending in August 2026. The PCA recorded further procedural developments in July 2026.
5.5 The PCA Is Not the Court of Arbitration
The Permanent Court of Arbitration is not the tribunal deciding the Western Rivers Arbitration. The adjudicative body is an ad hoc Court of Arbitration constituted under Article IX and Annexure G of the IWT. The PCA serves as Secretariat to that Court and provides administrative support (Permanent Court of Arbitration, 2026a).
A comparable distinction applies to the Neutral Expert proceeding. Michel Lino is the decision-maker appointed under Annexure F. The PCA acts as Registry and Secretariat and does not acquire the Neutral Expert’s treaty powers by performing those services.
The World Bank occupies a third institutional position. Its functions arise directly from provisions of the IWT and include designated appointments and specified financial or administrative responsibilities. It does not decide the substantive hydroelectric disputes and has not been given appellate authority over either adjudicative mechanism.
Calling the 2026 decisions “PCA rulings” consequently obscures the treaty structure. The Western Rivers awards are decisions of the Court of Arbitration constituted under the IWT; the PCA administers the proceeding in which that Court acts.
6. Ratle and the Limits on Indian Hydropower
Ratle brings the procedural controversy into the physical operation of the Indus system. The project is an 850 MW hydroelectric development on the Chenab, one of the Western Rivers governed by Article III. Its location upstream of Pakistan does not make the project unlawful because the Treaty expressly permits defined Indian hydroelectric uses.
Pakistan’s objections concern how that entitlement is exercised. Reservoir configuration, Pondage, outlets, spillways, turbine intakes, operating levels, and discharge capacity affect the degree of control an upstream plant can exercise over water. Annexure D subjects those features to detailed legal rules.
The engineering questions thus cannot be separated from treaty interpretation. A design feature may be technically advantageous while exceeding the limits accepted by India in 1960. Conversely, Pakistan cannot reject an upstream project merely because it alters river infrastructure where the design remains within India’s treaty entitlement.
The continuing status of the IWT determines which legal constraints remain applicable to work at Ratle. If the Treaty remains operative, the project is governed by Article III, Annexure D, applicable decisions of the treaty mechanisms, and valid interim protection prescribed under Annexure G.
6.1 Annexure D and Run-of-River Hydropower
Article III permits India to generate hydroelectric power on the Western Rivers subject to Annexure D. The Annexure establishes a specialized regime for Run-of-River Plants and defines the limited forms of storage that may accompany such projects (Indus Waters Treaty, 1960, art. III(2)(d); Annexure D).
Pondage is defined as Live Storage of only sufficient magnitude to meet fluctuations in turbine discharge arising from variations in daily and weekly plant loads. The concept permits operational flexibility without creating a general entitlement to reservoir storage (Indus Waters Treaty, 1960, Annexure D, para. 2).
Paragraph 8 regulates the design of new Run-of-River Plants. Its requirements address Maximum Pondage, outlets located below Dead Storage Level, gated spillways, turbine intakes, and associated elevations and capacities. The technical detail serves a legal purpose: restricting the amount and form of controllable storage available to the upstream operator.
Low-level outlets illustrate the relationship between engineering and treaty control. Such structures may assist sediment management or project operation, but their configuration can also affect an operator’s ability to control the timing and volume of releases. Annexure D permits them only within its specified conditions.
Compliance continues beyond the construction phase. Annexure D also regulates filling, operation, releases, and information concerning proposed projects. Classification as a Run-of-River Plant consequently begins rather than ends the treaty inquiry.
6.2 The 2025 Interpretation Award and 2026 Pondage Award
The Award on Issues of General Interpretation of 8 August 2025 addressed several contested provisions of Article III and Annexure D. The Court considered questions concerning low-level outlets, gated spillways, turbine intakes, Pondage, and the relationship between engineering discretion and the constraints imposed by the Treaty (Court of Arbitration, 2025b).
Its reasoning placed substantial weight on the negotiated text. The Court treated Annexure D as establishing binding design criteria rather than standards that could automatically be displaced whenever contemporary engineering practice favored another solution. The interpretation reflects the broader structure of the Western Rivers regime, under which India possesses hydroelectric rights while Pakistan receives protection against forms of upstream control excluded by the agreement.
The decision did not command identical reasoning from every member. Professor Jeffrey Minear appended a concurring opinion, while Judge Awn Shawkat Al-Khasawneh issued a partly dissenting opinion. Their views are relevant to contested points but remain separate from the Court’s operative holdings.
The Supplemental Award concerning Maximum Pondage, rendered on 15 May 2026, developed the application of paragraph 8(c). The Court required calculations to rely on realistic and defensible assumptions concerning installed capacity, anticipated load, hydrological conditions, and actual expected operation instead of assumptions selected merely to enlarge permissible Pondage (Court of Arbitration, 2026a).
That award also addressed the interaction between the IWT’s decision-making mechanisms. A Court of Arbitration and a Neutral Expert exercise different treaty functions, while previous final and binding decisions can constrain subsequent determinations according to the scope of the authority granted by Annexures F and G.
6.3 Kishenganga as the Earlier Treaty Precedent
The Western Rivers Arbitration is not the first Annexure G proceeding over Indian hydroelectric development. Pakistan instituted the Kishenganga arbitration in 2010, and India participated fully. The dispute concerned diversion of water through the Kishenganga Hydro-Electric Plant and the operation of its reservoir under Annexure D (Kishenganga Court of Arbitration, 2013a).
The Court prescribed interim measures in 2011 while allowing substantial construction to continue. Permanent works capable of prejudicing the effectiveness of a later decision were temporarily restricted. The proceeding demonstrated that Annexure G interim protection can address physical construction without predetermining the legality of the project itself.
The Partial and Final Awards subsequently recognized India’s ability to operate the project subject to treaty constraints. Among other conclusions, the Court imposed a minimum downstream flow requirement and restricted drawdown flushing below Dead Storage Level except in the circumstances identified in its decisions (Kishenganga Court of Arbitration, 2013a; 2013b).
Kishenganga also provides an earlier instance in which India participated fully in an Annexure G arbitration. That history does not determine the legality of the present Court, because India’s current objection depends on the different procedural circumstances surrounding the parallel proceedings initiated in 2016.
6.4 Ratle Pending the Neutral Expert’s Decision
On 31 August 2026, the Court issued an Order on Interim Measures concerning Ratle alongside its Award on the Status of the Treaty. The official PCA announcement confirms that both decisions were rendered.
Contemporaneous reporting states that the Court temporarily restricted construction of the Ratle dam wall and power-intake structure pending the Neutral Expert’s determination. The restrictions are reported to remain operative until 90 days after that decision, which is expected by July 2027 (Reuters, 2026).
Annexure G paragraph 28 authorizes a Court to prescribe interim measures to safeguard treaty interests involved in the dispute, prevent prejudice to a final solution, or avoid aggravation or extension of the controversy. Such measures are provisional and do not constitute a final judgment on the substantive compliance of Ratle.
The order leaves the technical merits to the appropriate treaty process while limiting changes to the physical project in the meantime. Ratle can consequently continue to be understood as a permitted category of Indian hydroelectric development whose particular design remains subject to unresolved treaty adjudication.
7. India’s Rejection and the Legal Effect of the Award
India’s refusal to recognize the Court presents a question about adjudicative authority rather than political acceptance. International jurisdiction depends on state consent, but that consent may be expressed in advance through a treaty containing compulsory procedures.
Article IX and Annexure G supply that institutional consent where their procedural conditions are fulfilled. The Treaty also contains mechanisms capable of constituting and operating a Court when one party does not make its designated appointments.
India disputes the antecedent question. New Delhi maintains that the Article IX conditions were not satisfied in the present case and that the Court was consequently invalid from its inception. The Court has adjudicated the same objection and reached the opposite conclusion.
7.1 Treaty Consent and India’s Non-Participation
India has not appeared before the present Court and did not appoint the two arbitrators allocated to it under Annexure G. The Treaty nevertheless anticipates possible non-cooperation and provides procedures through which the tribunal can be constituted and achieve the required quorum.
In the 2023 competence proceedings, the Court located India’s consent in the ratification of the IWT itself. Article IX and Annexure G created compulsory procedures capable of being invoked once the treaty conditions were satisfied; fresh consent from the respondent was not required after the particular dispute arose (Court of Arbitration, 2023, paras. 148–154).
The Court also considered India’s absence when determining how to conduct the proceeding. Non-participation did not relieve the Court of the need independently to satisfy itself regarding jurisdiction or the legal basis of Pakistan’s claims. India remained free to participate later without accepting the Court’s previous procedural conclusions.
India’s jurisdictional position consequently rises or falls primarily on its interpretation of Article IX and the constitution of the tribunal. Refusal to appear expresses that objection but does not supply an additional treaty ground for defeating jurisdiction.
7.2 Competence to Decide Competence
Annexure G paragraph 16 provides that the Court shall decide questions relating to its competence, subject to the Treaty and any agreement between the parties. The parties thus assigned the treaty-created tribunal an express authority to determine jurisdictional objections.
The Court relied on that provision in 2023. It concluded that Pakistan’s claims constituted disputes within Article IX, that the required procedural steps had occurred, and that the tribunal had been constituted in accordance with Annexure G (Court of Arbitration, 2023).
Competence-competence has a limited but important function. It does not make jurisdiction valid simply because a tribunal claims it. It identifies the institution empowered to decide the jurisdictional challenge within the agreed procedural system.
India remains entitled to maintain that the Court reached the wrong conclusion. Within the IWT mechanism invoked by Pakistan, however, there is no separate unilateral procedure allowing India to reverse the Court’s competence award by refusing to recognize it.
7.3 Binding Force and Rejection Are Different Questions
Annexure G paragraph 23 provides that an award rendered in accordance with the Annexure is final and binding upon India and Pakistan in respect of the dispute decided. The rule attaches legal consequences to a valid Annexure G award without requiring subsequent approval by either party.
India contests the premise on which that rule would apply to the present arbitration. Its position is that the current Court was never lawfully constituted, so its purported awards cannot acquire the binding quality contemplated by paragraph 23. That is a jurisdictional challenge rather than an independent power to reject an otherwise valid award.
The Court’s 2023 Award on Competence resolved the premise in the opposite direction. It held that the tribunal was properly constituted and competent. Later awards have proceeded on that foundation, including the decisions on treaty interpretation, Pondage, and treaty status.
The 31 August 2026 decision has been officially announced as an Award on the Status of the Indus Waters Treaty. If the present Court is the validly constituted Annexure G Court, as it has already held, paragraph 23 assigns final and binding effect to an award rendered within that jurisdiction. India’s rejection does not itself amount to a treaty procedure for annulment.
The Ratle order occupies a different category. Interim measures under paragraph 28 are temporary and linked to the preservation of rights or the effectiveness of proceedings. Their provisional character does not make them legally optional while they remain validly in force.
8. What If India Does Not Comply?
Non-compliance with the IWT cannot be assessed in the abstract. India retains treaty entitlements on the Western Rivers, including hydroelectric generation, and conduct within those entitlements does not become internationally wrongful because relations with Pakistan have deteriorated.
Responsibility would arise only where conduct attributable to India breaches an international obligation binding at the relevant time. The obligation might concern a substantive design rule, an operational requirement, information or cooperation duties, or a binding decision produced through the dispute-settlement regime.
The continued legal force of an underlying obligation also has to be established before responsibility follows. India’s abeyance position and any claimed justification under general international law would form part of that inquiry.
The International Law Commission’s Articles on State Responsibility provide the principal analytical framework. They are not a treaty, although many of their provisions codify customary international law and have repeatedly been used by international courts when identifying the conditions and consequences of internationally wrongful conduct (ILC, 2001).
8.1 Breach and State Responsibility
The customary framework reflected in Article 2 of the ILC Articles requires attributable conduct and breach of an international obligation. The two elements must be established separately; a treaty obligation does not make every act connected with the regulated activity attributable to the state.
Conduct of ministries and other organs of India is attributable under the rule reflected in Article 4. Decisions by competent government authorities concerning treaty performance, approvals, instructions, or the exercise of governmental powers can consequently engage India’s international responsibility when they are inconsistent with an applicable IWT obligation (ILC, 2001, art. 4).
Separate corporations and project companies require a different analysis. State ownership, shareholding, financing, or public control does not alone make every commercial act of such an entity attributable to the state. Article 5 concerns entities empowered to exercise governmental authority when acting in that capacity, while Article 8 addresses conduct carried out on state instructions or under state direction or control (ILC, 2001, arts. 5, 8).
The attribution issue does not allow a state to avoid obligations imposed directly upon it. If the IWT requires India to ensure that a project satisfies particular design restrictions, governmental authorization or failure to comply with that obligation can itself constitute relevant state conduct irrespective of the separate corporate status of the project operator.
Breach must then be established against the precise treaty rule. The construction of Ratle in itself is not wrongful because Annexure D permits qualifying hydroelectric projects. Responsibility would depend on conduct exceeding design, storage, operational, procedural, or adjudicative constraints that are binding on India.
8.2 Cessation, Performance, and Reparation
International responsibility ordinarily leaves the underlying obligation intact. Article 29 of the ILC Articles reflects the continuing duty to perform an obligation that remains in force even after it has been breached (ILC, 2001, art. 29).
Where wrongful conduct continues, cessation is the immediate consequence identified in Article 30. Assurances or guarantees of non-repetition may also be appropriate where circumstances require them; they are not an automatic remedy for every treaty violation (ILC, 2001, art. 30).
Reparation concerns injury resulting from the wrongful act. The Permanent Court of International Justice stated in Factory at Chorzów that reparation should, as far as possible, remove the consequences of the illegal act and restore the situation that would probably have existed without it (PCIJ, 1928, p. 47).
The ILC framework recognizes restitution, compensation, and satisfaction as possible forms of full reparation. Compensation requires financially assessable damage and causal connection with the breach; it does not follow merely because one state rejected an award or disputed another state’s interpretation (ILC, 2001, arts. 31, 34–37).
Special treaty rules remain controlling where they regulate consequences more specifically. Article 55 of the ILC Articles reflects that lex specialis principle. Remedies arising from an IWT violation must consequently be assessed alongside the powers and decisions of the mechanisms established by the Treaty itself.
8.3 The Limits of International Enforcement
The IWT contains adjudicative mechanisms but no centralized enforcement authority comparable to a domestic court equipped with coercive execution powers. The absence of such machinery affects implementation; it does not determine the existence or binding quality of the underlying legal obligation.
The World Bank cannot execute an Annexure G award against India or Pakistan. Its responsibilities are confined to the functions assigned by the Treaty, including designated appointments and financial arrangements. The Bank has repeatedly described its role in the present institutional controversy as limited and procedural (World Bank, 2022; 2023).
The PCA likewise possesses no enforcement mandate in this dispute. It administers the Court of Arbitration and the Neutral Expert proceeding in the capacities assigned to it, while adjudicative authority derives from the IWT and the bodies constituted under it.
Compliance consequently depends substantially on state behavior. Continuing treaty procedures, interstate negotiations, diplomatic pressure, claims for cessation or reparation, and the broader consequences of international responsibility may influence implementation even in the absence of centralized coercion.
Legal effectiveness and physical enforcement are separate questions. A state’s ability to disregard an award in practice does not establish a legal entitlement to do so. Conversely, describing an award as binding does not guarantee immediate alteration of conduct on the ground.
9. The Legal Position After India’s Rejection
Article XII(4) supplies the clearest textual basis for treaty continuity. The IWT is to continue in force until terminated by a duly ratified treaty concluded between India and Pakistan for that purpose. No such terminating agreement exists, and the Treaty contains no express power allowing either party unilaterally to place it in abeyance.
India’s more substantial legal objection lies in Article IX. Its differentiated treatment of technical differences and disputes, together with Article IX(6), provides a genuine textual foundation for contesting concurrent adjudication. The World Bank itself acknowledged the practical and legal difficulty created when both processes were activated.
That argument has nevertheless been adjudicated within the Annexure G process. The Court concluded in 2023 that Pakistan validly instituted arbitration and that the Neutral Expert proceeding neither deprived nor restricted the Court’s competence. India has continued to reject that interpretation, but the Treaty provides no separate appellate forum through which the competence award has been reversed.
The 2025 Supplemental Award addressed the consequences of abeyance for jurisdiction and reached the same institutional result. India’s unilateral declaration could not remove competence already acquired. The Neutral Expert process also continued after India stopped participating, leaving both treaty mechanisms operational while the broader dispute over treaty status intensified.
General international law permits exceptional departures from ordinary treaty performance, but each rests on defined requirements. Material breach, fundamental change of circumstances, impossibility, necessity, and countermeasures cannot be replaced by a general assertion of sovereign discretion. India’s security concerns may be relevant to such doctrines only where their specific factual and legal conditions are established.
On 31 August 2026, the Court issued an Award on the Status of the Indus Waters Treaty. The official PCA announcement confirms the decision, while contemporaneous reporting records the Court’s conclusion that the Treaty remains in force and that India had no valid basis unilaterally to suspend it. As of 31 August, the full text of the new award had not appeared among the decisions listed on the PCA case docket, so its detailed reasoning cannot yet be attributed beyond what the official announcement and reliable contemporary reporting establish.
India immediately rejected that conclusion. The Ministry of External Affairs continues to describe the Court as illegally constituted, denies its jurisdiction over India’s abeyance decision, and maintains that the Treaty remains in abeyance from India’s perspective.
On the currently established legal record, Pakistan has the stronger argument on treaty continuity. Article XII favors continued operation; the present Court has rejected India’s jurisdictional objections; and no independently established ground of general international law has yet displaced the Treaty’s continued operation. India’s strongest route to a different legal conclusion remains its contention that the Court never acquired valid authority or the establishment of a separate justification under general international law.
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Conclusion
India’s rejection of the 2026 arbitral award does not itself terminate the Indus Waters Treaty. The Treaty contains an express bilateral mechanism for termination and no autonomous unilateral category of “abeyance.” Any lawful departure from continuing performance must rest on a recognized rule of treaty law or state responsibility whose conditions are independently satisfied.
India’s challenge to the present Court is legally more substantial than the terminology used for suspension. Article IX genuinely differentiates between Neutral Expert and arbitral procedures, and the existence of related parallel proceedings has generated an unusual institutional problem. The Court resolved that issue in favor of its own competence in 2023 and preserved that competence against India’s later abeyance declaration in 2025.
Ratle now gives the dispute immediate operational consequences. The IWT permits India to generate hydroelectric power on the Western Rivers subject to Article III and Annexure D. The temporary measures announced on 31 August constrain specified construction while the Neutral Expert process continues; they do not amount to a general prohibition on Indian hydropower.
The dispute has consequently moved beyond the political question of whether India wishes to continue treating the IWT as operative. The central international-law question is whether conduct on the Western Rivers complies with obligations that remain legally in force and with decisions rendered through the mechanisms created by the Treaty. On the legal record available on 31 August 2026, those obligations continue to govern the India–Pakistan water relationship.
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