India's “Abeyance” Of Indus Waters Treaty With Pakistan Impermissible: Permanent Court of Arbitration

On 31 August 2026, the Permanent Court of Arbitration at The Hague, held that India's decision to keep the 1960 Indus Waters Treaty “in abeyance” did not suspend or terminate the Treaty. It remains fully in force and India remains bound by its obligations under it.

A five-member Court comprising Professor Sean D. Murphy (Chair), Professor Wouter Buytaert, Professor Jeffrey P. Minear, Judge Awn Shawkat Al-Khasawneh and Dr Donald Blackmore delivered the decision. It observed:

“....the Court found that the Treaty has not been terminated or its operation suspended and rather remains fully in force. India remains bound by and must observe its obligations under the Treaty, including those relating to the design and operation of hydro-electric projects on the Western Rivers and associated dispute settlement.”

In a separate interim order, the Court also restricted India from carrying out specified concrete works at the Ratle Hydro-Electric Plant until 90 days after the Neutral Expert decides whether the project's design complies with the Treaty.

The dispute concerns the design of India's Kishenganga and Ratle run-of-river hydro-electric projects on the Indus, Jhelum and Chenab Rivers and their tributaries, collectively referred to as the Western Rivers, under the 1960 Indus Waters Treaty.

Pakistan initiated arbitration against India in August 2016 under Article IX and Annexure G of the Treaty over the two projects. Article IX provides the mechanism for resolving questions, differences and disputes, while Annexure G provides for referring disputes to a Court of Arbitration.

India separately sought the appointment of a Neutral Expert in October 2016 to decide technical questions concerning the projects. The World Bank paused both processes in December 2016 and lifted the pause in 2022. The Court of Arbitration was subsequently constituted and the Neutral Expert appointed. In July 2023, the Court rejected India's objections to its competence.

The controversy over the Treaty itself arose on 23 April 2025, when India placed it “in abeyance” with immediate effect following an attack in India-administered Jammu and Kashmir. India said the Treaty would remain in abeyance until Pakistan “credibly and irrevocably” abjured its support for cross-border terrorism.

In June 2025, the Court of Arbitration held that India's unilateral action could not affect its competence to continue the arbitration, while leaving open the question of whether the Treaty itself remained in force.

Pakistan subsequently sought interim restrictions on construction at the Ratle Hydro-Electric Plant, including curbs on further concreting of the dam wall and power intake structure and disclosure of changes to the construction schedule. It also sought a declaration that continued construction would be at India's “own risk” and that India should continue complying with the Treaty pending the Court's ruling.

The Court heard Pakistan's applications from 26 to 28 April 2026 at the Peace Palace in The Hague. India did not appear and did not make oral or written submissions. The Court therefore considered India's position based on its communications with Pakistan and the Neutral Expert and public statements by Indian officials.

On the Treaty issue, the Court found that “abeyance” is not used in the Treaty and has no technical meaning under international law. It therefore examined whether India's decision could operate as a suspension or termination of the Treaty.

It also held that neither India nor Pakistan could unilaterally suspend or terminate the Treaty. It remains in force unless both countries modify or terminate it through a further treaty. It rejected sovereignty as an independent basis for setting aside treaty obligations, relying on the principle of pacta sunt servanda, under which treaties in force must be performed in good faith.

Further, it held that Pakistan was under no Treaty obligation to negotiate modifications sought by India. Pakistan's objections to Indian hydro-electric projects and its use of the Treaty's dispute-settlement mechanisms therefore could not constitute a breach of the Treaty.

On India's allegations of cross-border terrorism, the Court said it took them “extremely seriously”. However, even assuming them to be true, they would not establish a material breach because the Treaty does not address terrorism or the use of force and instead governs rights and obligations concerning the waters of the Indus Rivers System.

The Court also considered demographic changes, India's clean-energy needs, changes in dam infrastructure technology, escalating cross-border terrorist attacks and climate change. It found that these circumstances did not establish a fundamental change of circumstances permitting suspension or termination of the Treaty.

Separately, while considering Pakistan's request for interim protection concerning Ratle, it found that substantial construction was scheduled before the Neutral Expert's final decision, which is expected around 16 July 2027. It noted that removing or modifying reinforced concrete could be “extraordinarily difficult and costly” if the project's design was subsequently found to be non-compliant with the Treaty.

Therefore, the Court prohibited India from concreting the dam wall and power intake structure above specified levels until 90 days after the Neutral Expert's final decision. It also directed India to notify the Court, Pakistan and the Neutral Expert of changes to Ratle's construction schedule.

However, the Court declined Pakistan's requests to declare that India's construction was being undertaken at its “own risk” and to direct India to return to full Treaty compliance pending the Court's decision on the Treaty's status.

Accordingly, the Court held that India's decision to keep the Indus Waters Treaty in “abeyance” was not permissible under the Treaty or applicable international law, while granting Pakistan limited interim protection in relation to construction at the Ratle Hydro-Electric Plant.

Appearances for petitioner (Islamic Republic of Pakistan): Lead Counsel Sir Daniel Bethlehem.