Muddied Legal Waters: The Court of Arbitration Order on the Indus Treaty

Lift Line

A court can rule that the treaty is in force. A treaty cannot function on a ruling; it functions on the reciprocity a ruling cannot restore.

What the Editorial Says

Writing in the Hindustan Times, Syed Akbaruddin, former Permanent Representative of India to the United Nations in New York and now Dean of the Kautilya School of Public Policy, examines the Court of Arbitration order at The Hague of 31 August 2026. The Court held that the Indus Waters Treaty remained fully in force despite India’s decision to hold it in abeyance, and issued a limited interim order on the Ratle hydroelectric project restricting concreting above specified levels of the dam wall and power intake until ninety days after the Neutral Expert’s final decision, while declining two other measures sought by Pakistan. India did not participate, and the Ministry of External Affairs rejected the award, saying the Court had neither legal existence nor jurisdiction to rule on India’s position.

Akbaruddin’s argument has two moves. First, he treats the more fundamental issue as whether the Court was validly constituted at all. India objected to its creation before any ruling and maintains that the Indus Waters Treaty does not permit two parallel forums to shape the same technical dispute. Second, he argues that even setting jurisdiction aside, the treaty’s daily machinery of notices, inspection visits, data tables and meetings requires reciprocity and good faith, and by treating every obligation as fully operative the award preserves the text while saying too little about the security and political conditions needed to make its procedures work.

He closes on Ratle. India’s limited run-of-river hydropower right on the Western Rivers can, he warns, be worn down without being formally denied through repeated objections, parallel proceedings, delayed decisions and interim restraints, until a right that exists on paper is difficult to use on the ground.

Why This Matters for UPSC

GS Paper 2, bilateral, regional and global groupings and agreements involving India and affecting India’s interests; effect of policies and politics of developed and developing countries on India’s interests. GS Paper 3, internal security dimensions, water resources.

The Analysis

1. What the Court actually ordered on 31 August 2026. The Court of Arbitration at The Hague held that the Indus Waters Treaty remained fully in force despite India’s decision to hold it in abeyance. It issued a limited interim order on the Ratle project restricting concreting above specified levels in parts of the dam wall and power intake until 90 days after the Neutral Expert’s final decision, and required reports on the construction schedule. It declined two other measures Pakistan had sought. India did not participate; the Ministry of External Affairs rejected the award, holding that the Court had neither legal existence nor jurisdiction.

2. The jurisdictional argument, step by step. Pakistan first requested a Neutral Expert, withdrew that request, and then in August 2016 described its objections as arbitral disputes. India sought a Neutral Expert in October 2016 for the same set of technical questions. The World Bank, which under the treaty appoints both, paused both processes because it saw a risk of contradictory outcomes, and then in 2022 completed both appointments simultaneously. India’s objection, argued in the editorial, is that Article IX read with paragraph 6, which suspends the arbitral track while a Neutral Expert is seized, does not permit two forums to work on the same technical question at once. A tribunal may examine its own jurisdiction, but that power does not enlarge the consent the parties actually gave under Article IX.

3. Non-appearance is a recognised position, not a forfeit. Akbaruddin cites three precedents. The United States contested jurisdiction in Nicaragua v United States and later withdrew from the merits; the International Court of Justice continued. China refused to accept or participate in the South China Sea arbitration against the Philippines under UNCLOS Annex VII; the tribunal continued and issued its 2016 award. In the Aegean Sea Continental Shelf case, Turkey did not appear at the jurisdictional stage, and the International Court of Justice examined consent and found that it had no jurisdiction. Non-appearance neither creates nor extinguishes jurisdiction; it forces the tribunal to decide the question itself.

4. Abeyance is not termination, but it is a political statement. Article XII(4) provides that the treaty remains in force until terminated by a duly ratified treaty concluded for that purpose between the two governments. India has not sought formal termination. India invoked Article XII(3), which permits modification, and sought a negotiated modification before placing the treaty in abeyance. The background to that decision is the Pahalgam attack of 22 April 2025 and the subsequent Operation Sindoor. The award preserves the letter of the treaty; the letter is not what has broken. The daily machinery, notices, drawings, inspection visits, data tables and meetings, requires reciprocity that a court order cannot supply.

5. Ratle and the death of a right by accumulation. The IWT permits India limited run-of-river hydropower on the Western Rivers, subject to defined design rules. Ratle is a run-of-river project under construction on the Chenab in Jammu and Kashmir; the order restricts concreting above specified levels, which presupposes active building. If parallel proceedings, delayed decisions and interim restraints accumulate, the right survives in the treaty text and thins out in engineering practice. That is the practical cost the editorial warns about, and it is the argument for defending the treaty’s own graduated architecture rather than surrendering to a forum India never consented to.

The precision that earns marks. The Union Territory of Jammu and Kashmir and the region of Ladakh are integral parts of India, and areas held by Pakistan are illegally occupied under the Government of India’s consistent position. An answer that treats Pakistan’s occupation as legitimate, or that describes the Court of Arbitration’s ruling as binding on India in the absence of consent, has misdescribed both the constitutional position and the law of treaties.

How to Think About It

• Text is not enough. A treaty is a text held up by a practice. The award preserves the text; the practice has broken. Any answer that stops at the text has stopped short.
• The forum question is the treaty question. India’s objection is not to the treaty; it is to a forum the treaty does not permit. Distinguish the two, and the argument follows.
• Non-appearance is a defence, not a default. Nicaragua, the South China Sea and the Aegean cases show that non-appearance forces the tribunal to decide jurisdiction itself, and that the answer can go either way.
• Rights die by accumulation, not by denial. Ratle is the warning: a right worn down by procedural friction is a right that has been effectively extinguished without ever being formally taken.

Data and Institutions Vault

Prelims-grade facts:

The treaty:

• The Indus Waters Treaty was signed at Karachi on 19 September 1960 between Prime Minister Jawaharlal Nehru and President Ayub Khan, with World Bank Vice-President W A B Iliff as the third signatory.
• Eastern Rivers, Ravi, Beas and Sutlej, are allocated to India; Western Rivers, Indus, Jhelum and Chenab, are allocated to Pakistan.
• India retains specified uses on the Western Rivers, including limited run-of-river hydropower, subject to design constraints.
• Article IX creates a graduated dispute mechanism: Permanent Indus Commission, then Neutral Expert, then Court of Arbitration.
• Article XII(3) permits modification; Article XII(4) leaves the treaty in force until terminated by a duly ratified new treaty.

The current proceedings:

• The Court of Arbitration at The Hague issued an interim order on the Ratle project on 31 August 2026, limiting concreting above specified levels until 90 days after the Neutral Expert’s final decision.
• India did not participate; the Ministry of External Affairs rejected the award as beyond the Court’s jurisdiction.
• The World Bank appointed a Neutral Expert and a Court of Arbitration in 2022 for parallel processes on Kishenganga and Ratle, having paused both earlier.
• The Court rejected India’s jurisdictional objections in 2023.

India’s security context:

• The treaty was placed in abeyance after the Pahalgam attack of 22 April 2025 and Operation Sindoor; India invoked Article XII(3) and sought a negotiated modification.
• The Permanent Indus Commission is the standing bilateral forum, comprising a commissioner from each side.

Non-appearance precedents cited:

• Nicaragua v United States: US contested jurisdiction, later withdrew from merits; ICJ continued.
• South China Sea arbitration: China refused to participate; UNCLOS Annex VII tribunal continued.
• Aegean Sea Continental Shelf: Turkey did not appear at jurisdictional stage; ICJ found no jurisdiction.

The author:

• Syed Akbaruddin, former Permanent Representative of India to the United Nations, New York; currently Dean, Kautilya School of Public Policy, Hyderabad.

Watch the trap: The Neutral Expert and the Court of Arbitration are two different treaty forums under Article IX, appointed separately by the World Bank, dealing respectively with technical differences and disputes. An answer that collapses them, or that treats the World Bank as the adjudicator itself, has misdescribed the treaty’s architecture.

Diagram-in-Words

PYQ Linkage

• UPSC CSE Mains GS2, 2016: “Discuss the impediments India is facing in its pursuit of a permanent seat in UN Security Council.” (Format for treaty-and-forum questions.)
• UPSC CSE Mains GS2, 2020: “Critically examine the aims and objectives of SCO. What importance does it hold for India?”
• UPSC CSE Prelims, 2016: Question on the Indus Waters Treaty and its allocation of the six rivers.

Sources: Hindustan Times, Ministry of External Affairs, World Bank

Source: Muddied Legal Waters: The Court of Arbitration Order on the Indus Treaty — Ujiyari.com | Free UPSC & State PCS Editorial Analysis