The Indus Waters Treaty After the ‘Abeyance’ Award: Law, Sovereignty and the Road Ahead

On 31 August 2026, the Court of Arbitration constituted under the Indus Waters Treaty delivered a unanimous award holding that the Treaty “remains fully in force” despite India’s announcement, on 23 April 2025, that it would be held “in abeyance with immediate effect”. On the same day the Court granted interim measures restricting construction at the Ratle Hydro-Electric Project in Jammu and Kashmir. Within hours, India’s Ministry of External Affairs rejected the award, describing the tribunal as an “illegally constituted so-called Court of Arbitration” with “no jurisdiction whatsoever”, and reaffirmed that the abeyance continues.

The episode raises some of the most important questions in the law of treaties: whether a State may suspend a treaty in response to terrorism, what “abeyance” means in law, and what happens when one party refuses to take part in proceedings against it. This article sets out the background, the award, India’s position and the road ahead.

Background: a treaty under strain

Signed in 1960 with the World Bank as a signatory, the Indus Waters Treaty allocates the three Eastern Rivers (Ravi, Beas and Sutlej) to India and the three Western Rivers (Indus, Jhelum and Chenab) to Pakistan, while allowing India limited non-consumptive uses of the Western Rivers, including run-of-river hydro-electric generation subject to detailed design criteria. Article IX establishes a graded dispute mechanism: questions go to the Permanent Indus Commission, “differences” of a technical nature to a Neutral Expert, and “disputes” to a Court of Arbitration.

The current proceedings concern the Kishenganga and Ratle projects. Pakistan sought a Court of Arbitration; India sought a Neutral Expert. In 2022 the World Bank set both processes in motion. India has maintained that running two processes in parallel breaches the Treaty’s sequential scheme and has participated only in the Neutral Expert proceedings. In 2023 and 2024 India issued notices under Article XII(3) seeking renegotiation of the Treaty.

After the terrorist attack at Pahalgam on 22 April 2025, in which 26 people were killed, India’s Cabinet Committee on Security decided that the Treaty would be held in abeyance until Pakistan “credibly and irrevocably abjures its support for cross-border terrorism”.

What the Court decided

The Court, chaired by Professor Sean D. Murphy, reached the following principal conclusions:

• “Abeyance” has no technical meaning in the Treaty or in international law. The Court therefore treated India’s decision as a claimed suspension or termination, observing that the legal result would be the same either way.
• “Sovereignty” is not a ground for suspending or terminating a treaty. Treaties in force must be performed in good faith (pacta sunt servanda).
• None of the grounds advanced by India justified suspension or termination — including alleged material breach by Pakistan (in respect of negotiations, dispute settlement and cross-border terrorism), fundamental change of circumstances, armed conflict, and countermeasures.
• India remains bound by its obligations, including those concerning the design and operation of hydro-electric projects on the Western Rivers and the Treaty’s dispute settlement provisions.

In a separate order, the Court granted three of the five interim measures sought by Pakistan in respect of Ratle: India may not raise the concrete of the dam wall and power intake above specified levels, and must report changes to the construction schedule. These measures are tied to the Neutral Expert’s pending decision on whether the Ratle design complies with the Treaty, expected around July 2027. India made no written or oral submissions; the Court relied on India’s official communications and public statements.

India’s position

India’s response rests on three pillars. First, jurisdiction: India contends that the Court was constituted in breach of Article IX, because a technical difference already referred to a Neutral Expert cannot simultaneously be litigated before an arbitral tribunal. On that view, the Court’s decisions are without legal effect. Second, the right of a State to respond to sustained cross-border terrorism: India regards Pakistan’s conduct as striking at the very foundation of the 1960 bargain, which was premised on peaceful relations and good faith. Third, the Treaty’s own evolution: India has formally sought renegotiation, arguing that demographic change, the needs of clean energy and the realities of climate change require the Treaty to be revisited.

The legal questions that remain

Material breach and terrorism. Customary law, reflected in Article 60 of the Vienna Convention on the Law of Treaties, permits suspension for material breach — a repudiation of the treaty or the violation of a provision essential to its object and purpose. The difficulty is that the Indus Waters Treaty is a water-sharing instrument; it contains no express counter-terrorism undertaking. The Court was not persuaded that Pakistan’s alleged support for terrorism breached a provision of the Treaty itself. Whether a broader principle of good faith or the general law of State responsibility should fill that gap is a question on which reasonable international lawyers differ.

Countermeasures. Under the International Law Commission’s Articles on State Responsibility, an injured State may suspend performance of its obligations to induce a wrongdoing State to comply with its own. But countermeasures must be proportionate, reversible and preceded by notice, and they may not affect obligations under dispute settlement procedures in force between the parties (Article 50(2)(a)). This last condition sits uneasily with India’s decision not to engage with the Court.

Termination. Article XII(4) of the Treaty provides that it continues in force until terminated by a duly ratified treaty concluded for that purpose between the two Governments. There is no unilateral exit clause. That is why India’s public statements have generally spoken of suspension rather than termination, and why the Court found it unnecessary to decide which characterisation applied.

Procedure. India is not a party to the Vienna Convention, but its procedural safeguards — notification, a waiting period and recourse to peaceful settlement where an objection is raised — are widely regarded as reflecting good practice, and are relevant to any assessment of a unilateral suspension.

Enforcement and the road ahead

There is no mechanism to enforce an Indus Waters award by force, and India has made clear that it will not regard it as binding. The practical significance of the award therefore lies elsewhere: in its influence on the World Bank, on financing for projects on the Western Rivers, on third-State and investor perceptions, and on the narrative each side presents internationally. The Neutral Expert proceedings, in which India does participate, continue, and their outcome on Kishenganga and Ratle will matter greatly.

The deeper question is political as much as legal. A sixty-six-year-old treaty that survived three wars now faces its most serious test. A durable solution is likely to require renegotiation — something India has formally sought — rather than litigation alone.

References

• Permanent Court of Arbitration — Press release, Indus Waters Western Rivers Arbitration (31 August 2026)
• Outlook — India rejects Court of Arbitration award on Indus Waters Treaty
• Opinio Juris — The interpretation of ‘abeyance’ in Pakistan v. India
• ISAS, NUS — The Indus Waters Treaty: arbitration, legitimacy and changing realities