PSIR Simplified

On 15 May, 2026, the Hague-based Permanent Court of Arbitration issued its award on Indus Water Treaty, 1960,  limiting the ‘Maximum Pondage’ by India for the run of the river projects launched by India. in other words, maximum pondage means the maximum limit of water India can store while implementing hydroelectric projects in the rivers allotted to Pakistan under the treaty. On 16 May, 2026, India rejected the award as ‘null and void’ on the following grounds: The Arbitration court has no jurisdiction because India has never joined the arbitration process and thus it is unilateral and null. Second, the Indus water Treaty is under ‘Abeyance’ since April, 2025. India put the treaty in abeyance, following the Pahalgam terror attack 22 April, 2025, which was sponsored by Pakistan. India has stated that the treaty will remain in abeyance till Pakistan gives credible evidence that it is not supporting cross-border terrorism against India.  In fact, Abeyance is the informal form of suspension of a treaty, which is not provided in the treaty. The Treaty only provides for modification by mutual consent, which India has moved but Pakistan does not agree. The treaty does not have any provision  for termination or suspension. Unlike the other treaties, this is the most unusual features of the Indus water Treaty.

In fact, the issue of Indus water Treaty was already pending before the Arbitration Court, in spite of India’s opposition, when this award was announced. Pakistan initially moved to the  Arbitration Court in August, 2016 against India’s insistence on resolving the dispute by a neutral observer. Thus, for India, this award has no meaning. But it involves some other serious issues to be considered. This Article is concerned with decoding the underlying legal issues in this controversy.

What are the main provisions of Indus Water Treaty?

The Indus water Treaty was signed on 19 September, 1960 at Karachi by the Indian PM Nehru on behalf of India and President Ayub Khan on behalf of Pakistan. It was mediated by the World Bank. Though this treaty was formally signed on 19 September, 1960, it became effective from 01 April, 1960 by mutual consent.

The main provisions of this treaty are mentioned below:

1. Preamble- The Preamble of Treaty clearly states that both countries sign this treaty for the better utilization of Indus river system in a spirit of goodwill and friendship,  and settlement of disputes with cooperative spirit. Pakistan is consistently violating the principles of goodwill and friendliness inherent in this Preamble by supporting cross-border terrorism against India.
2. Distribution of River Waters- Under this Treaty, the waters of three lower or eastern rivers namely Ravi , Sutlaj and Beas has been allocated to India for exclusive use.

           The waters of three western rivers namely Chenab, Jhelum and Indus are allocated to Pakistan but with following rights (under Article 3) to India on the waters of these three rivers:

(a) Domestic Use ;

(b) Non-Consumptive Use ;

(c) Agricultural Use ; and

 (d) Generation of hydro-electric power (run of the river projects).

Whenever, India is implementing various hydroelectric projects  (run of the river projects) on these three rivers- mainly on Chenab and Jhelum, Pakistan raises objection and refuges to resolve those objections. This situation has made India to delay many of the projects useful for India’s development for long time. Pakistan has raised objections to Ratle project in Chenab and Kishanganga Project on Kishanganga tributary of Jhelum.

• Dispute Settlement- For dispute settlement under Article 9, the treaty provides for the four-tiered mechanism
• Indus water Commission- Both countries would establish this two-member commission by nominated one engineer each of their choice. The differences to the interpretation of the Treaty shall be first resolved by the Commission.
• Neutral Expert- If Commission fails to resolve a difference, it would be referred to  a neutral expert.
• Government Negotiations-If neural expert also fails to resolve a difference, that difference would be treated as dispute, which would be resolved by the high-level negotiations between the two governments.
• Arbitration- If the dispute is not resolved through the negotiations, the parties may move for Court of Arbitration.

The root of Legal Controversy

The above scheme of clearly shows that there is a hierarchy of dispute settlement mechanism beginning with Commission to neutral expert to negotiations and finally to Arbitration. But Pakistan does not accept this hierarchy. While India has moved to appoint Neutral Expert, Pakistan has skipped two steps of neutral expert and negotiations and has directly moved to Arbitration Court, which is not permissible under the provisions related to dispute settlement under this this Treaty. That is why India has boycotted the proceedings of Arbitration Court since 2016.

International Legal Dimensions

1. There are certain legal conventions adopted by the UN for sharing of cross-boundary water resources. The UN Water Convention adopted in 1992 in Helsinki lays down three principles for sharing of transborder waters of lakes and rivers. Its core principles are:
2. Preventing Harm: Requires parties to prevent, control, and reduce transboundary water impacts and pollution.
3.  Equitable Utilization: Mandates that shared water resources be used in a reasonable and balanced way.
4. Joint Cooperation: Obligates neighboring countries to form bilateral or multilateral agreements and set up joint bodies or river commissions.

However, neither India and Pakistan have signed this convention. Thus, Pakistan cannot claim benefits under this convention in normal course.

• Vienna Convention on Law of Treaties, 1969- It is about the implementation and termination of Treaties. Among other things, this convention provides that if material conditions prevailing at the time of signing of treaty have changed , either party can terminate on this ground. India has argued that the material conditions of water availability has changed due to climate change and requirements of India. Hence, India wants the modification of the treaty. Though the Indus Water Treaty does not provide for its termination and suspension, but it provides for its modification with the consent of the two parties. If Pakistan fails to give consent to the modification request of India, India can move towards termination of the treaty on the basis of Change in material conditions, as provided in Vienna Convention on Law of Treaties.

However, India can  raise the issue of terrorism at the time of keeping the treaty on abeyance, but this ground cannot be a valid  ground for termination of treaty, because material conditions underlying Indus Water Treaty in 196o does not cover Terrorism.  The effect of climate change as well as India’s increasing need of water for development can be a valid ground for termination of treaty under international law of treaties. We hope that India will move accordingly.

Note- For original Text of the Indus Water Treaty please visit the link Below:

https://treaties.un.org/doc/Publication/UNTs/Volume%20419/volume-419-I-6032-English.pdf