India skips IWT case proceedings at The Hague

THE HAGUE:

The Hague’s Permanent Court of Arbitrationhas said that India did not respond to an invitation to participate in a hearing and did not appear in proceedings over a case related to the Indus Waters Treaty (IWT) dispute with Pakistan.

The IWT of 1960 stands as one of the most carefully negotiated and legally robust transboundary water agreements in modern international law. Concluded between Pakistan and India with the good offices of the World Bank, the treaty was designed to remove water from the volatility of politics and conflict and to anchor it firmly in law, engineering discipline and neutral dispute resolution. It is a binding international instrument governed by the foundational principle of pacta sunt servanda — that treaties must be honoured in good faith.

In a press release issued a day ago, the court said it concluded its hearing for the Second Phase on the Merits on February 3 in an arbitration initiated by Pakistan against India pursuant to Article IX and Annexure G of the Indus Waters Treaty. “India did not respond to an invitation to participate in the hearing and did not appear,” it added.

Pakistan is contesting India’s hydroelectric designs and projects on the Indus basin rivers, arguing that New Delhi has exceeded the limits set under the treaty governing shared water resources.

According to the press release, Pakistan requested the court address the interpretation and application of the treaty to certain design elements of run-of-river hydro-electric projects that India is permitted by the treaty to construct on the Indus, Jhelum, and Chenab rivers and their tributaries before those rivers flow into Pakistan.

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The press release said that in the current phase of the proceedings, the court was merely resolving the basis upon which India must determine the installed capacity and anticipated load of a proposed project and, once determined, how these elements were to be taken into account for purposes of the calculation of maximum pondage.

Pakistan was represented by Attorney General Mansoor Usman Awan, accompanied by IWT Commissioner Mehr Ali and senior diplomats.

IWT dispute

At the heart of the IWT lies a permanent and unqualified allocation of rivers. Article II vests the eastern rivers — Ravi, Beas, and Sutlej — exclusively in India, while Article III accords Pakistan exclusive rights over the western rivers — Indus, Jhelum, and Chenab. This allocation was the treaty’s foundational bargain.

Indus Waters Treaty at the crossroads: Arbitration, obligations, and the rule of international law

India’s access to the western rivers is permitted only within the narrow confines of Article III(2), read with Annexures D and E, which allow limited, non-consumptive uses, principally run-of-the-river hydroelectric projects. These permissions are subject to strict design and operational constraints, including tight limits on pondage, prohibition of storage for flow regulation, and a ban on engineering features that would enable control over the timing or quantum of water flows to Pakistan.

These limits were deliberately imposed to protect Pakistan’s position as the lower riparian and to ensure that water could never become a strategic weapon. Pakistan’s objections to India’s hydropower projects, particularly Kishanganga and Ratle, arise squarely from these provisions. Pakistan has consistently maintained that excessive pondage capacity, gated spillways, drawdown flushing mechanisms, and specific intake and outlet configurations violate Annexure D, paragraphs 8 to 15.

These provisions strictly circumscribe permissible pondage and expressly bar designs that enable manipulation of flows beyond instantaneous power generation. The concern is not theoretical. Technical assessments demonstrate that such features can materially affect downstream flows, especially during lean seasons, undermining the guarantees embedded in Article III(1) of the Treaty.

The dispute entered a more troubling phase in April 2025, when, following a terrorist incident in Pahalgam, India announced that it was placing the Indus Waters Treaty “in abeyance”. This declaration finds no support in the treaty or in international law.

In its award on competence, the tribunal unanimously held that it was properly constituted and fully competent to adjudicate Pakistan’s claims. In a subsequent supplemental award in 2025, the tribunal expressly dismissed India’s plea that the treaty had been placed in abeyance, holding that unilateral declarations have no legal effect, that the IWT remained fully in force, and that the court retained jurisdiction notwithstanding India’s continued non-participation.

Feb 9 marked the deadline fixed by the court for India’s compliance. The order was legally binding. The tribunal made clear that proceedings would continue irrespective of India’s participation and that failure to produce the required data may result in adverse inferences. Under established international practice, including that of the International Court of Justice, adverse inference permits a tribunal to presume that withheld evidence would have been unfavourable to the non-complying party.

In case of non-compliance, the Court of Arbitration is empowered to proceed ex parte, draw adverse factual conclusions, and ultimately issue a final award directing India to modify project designs or operations to ensure conformity with Article III and Annexure D.

The tribunal may also prescribe remedial measures to prevent ongoing prejudice. While international tribunals lack coercive enforcement mechanisms, their awards are binding, and persistent defiance carries serious legal, diplomatic, and reputational consequences.