The Islamic Republic of Pakistan (- N/A -) v. The Republic of India (- N/A -)

At a glance

Parties

The Islamic Republic of Pakistan v. the Republic of India

Case no.

PCA Case No. 2023-01 (Indus Waters Western Rivers Arbitration). The record also contains three decisions from the earlier Indus Waters Kishenganga Arbitration (PCA Case No. 2011-01).

Forum and rules

Court of Arbitration under Article IX and Annexure G of the Indus Waters Treaty 1960, with Supplemental Rules of Procedure of 31 March 2023; PCA as Secretariat; hearings at the Peace Palace, The Hague

Treaty

Indus Waters Treaty 1960 (signed at Karachi on 19 September 1960)

Court

Prof. Sean D. Murphy (Chairman), Prof. Wouter Buytaert, Prof. Jeffrey P. Minear, Judge Awn Shawkat Al-Khasawneh, Dr. Donald Blackmore. Kishenganga Court: Judge Stephen M. Schwebel (Chairman), Sir Franklin Berman, Prof. Howard S. Wheater, Prof. Lucius Caflisch, Prof. Jan Paulsson, Judge Bruno Simma, Judge Peter Tomka

Sector

Hydro-electric power; transboundary water resources

Outcome

India did not appear. The Court upheld its competence (2023, 2025) and set binding general design criteria for Indian run-of-river plants on the Western Rivers, deciding the pondage criterion by 4 votes to 1 (2025, supplemented in 2026). On 31 August 2026 it declared that the Treaty remains fully in force despite India's 'abeyance'. Costs are reserved and the Court remains seized.

Amount

No monetary claims. Costs reserved for the Final Award. In the Kishenganga Final Award, each Party bore its own costs and the costs of the Court were shared equally.

The dispute

The 1960 Indus Waters Treaty gives Pakistan the waters of the Western Rivers (the Indus, Jhelum and Chenab). India must 'let flow' those waters, subject to limited rights such as building run-of-river hydro-electric plants that meet the design criteria in Paragraph 8 of Annexure D. On 19 August 2016 Pakistan began arbitration over the interpretation and application of those criteria, including for the Kishenganga (KHEP) and Ratle (RHEP) plants. India instead sought a neutral expert, who was appointed by the World Bank in 2022 alongside the Court. India refused to recognise the Court and argued, by letter to the World Bank, that it lacked competence. On 23 April 2025, after an attack in India-administered Jammu and Kashmir, India declared that it was holding the Treaty 'in abeyance'. Pakistan then asked the Court to declare that the Treaty remains in force, and also filed a request for interim measures concerning the RHEP. The record also includes the 2013 Kishenganga awards, which dealt with India's diversion of the Kishenganga/Neelum river and with drawdown flushing below Dead Storage Level.

Key holdings

1. Competence upheld, unanimously. India's non-appearance does not deprive the Court of competence, and the Court was properly constituted. India's request for a Neutral Expert, and the World Bank's appointment of one, neither remove nor limit the Court's competence. Paragraph 1 of Annexure G creates no separate 'necessity' test. The Court is competent over all disputes in Pakistan's Request for Arbitration. Award on Competence, ¶ 318
2. India's 'abeyance' of the Treaty does not affect the Court's competence. Competence is assessed as at the filing of the Request on 19 August 2016, and a later unilateral act cannot remove it. The same applies, mutatis mutandis, to any competence the Neutral Expert has. The Court has a continuing duty to advance the proceedings. Supplemental Award on Competence, Part VI(C)–VII
3. The Court set mandatory design criteria for new Annexure D, Part 3 plants, unanimously. India should avoid outlets below Dead Storage Level and gated spillways unless they are necessary. Where they are necessary, they must be of minimum size and at the highest level possible, without regard to cost. Power intakes must be at the highest level, and freeboard may be no greater than dam safety requires. India must notify design particulars early and must prove that its designs comply. The 2025 clarification decision added that these criteria apply at the design stage and cannot be met by promises of operational restraint. Award on General Interpretation, ¶ 811(H)–(S); Decision on Clarification, ¶ 88(F)
4. Maximum Pondage, decided by 4 votes to 1. Pondage is calculated on a period of no more than seven days, at the minimum mean discharge, on a realistic projection of the plant's installed capacity and anticipated load, and within the release limits of Paragraph 15. Maximum Pondage may not exceed twice that amount. Judge Al-Khasawneh dissented: in his view installed capacity and anticipated load are not determinants of Pondage. Professor Minear wrote a concurring opinion. In the 2025 clarification decision the Court confirmed that the projection must be 'realistic, well-founded, and defensible'. Award on General Interpretation, ¶ 811(O); Decision on Clarification, ¶ 88(H)
5. Supplemental Award on Pondage. Installed capacity and anticipated load must reflect how the plant will actually be operated. The load projection is presumed compliant if it follows actual peak demand on the power system. Any applicable minimum flow, whether under Paragraph 15(iii) or under customary international law to prevent significant environmental harm, must be deducted from the minimum mean discharge before Pondage is calculated. If India does not provide the supporting information, it fails to carry its burden of proof. Supplemental Award concerning Maximum Pondage, ¶¶ 296, 301
6. The Treaty remains fully in force. India's 'abeyance' has no meaning in the Treaty or in international law. It cannot be justified by sovereignty, material breach, fundamental change of circumstances or armed conflict. It is not a lawful countermeasure, because it interferes with fundamental human rights, is not reversible, and purports to escape the Treaty's dispute settlement procedures. India remains bound by the Treaty. Award on Treaty Status, ¶¶ 310–326
7. Kishenganga Arbitration (PCA Case No. 2011-01). The Final Award required India to release a minimum flow of 9 cumecs below the KHEP, or all of the inflow when the flow upstream is lower. Either Party may seek reconsideration 7 years after diversion begins, and each Party bears its own costs. The 2013 Decision on Clarification held that the ban on lowering reservoirs below Dead Storage Level, except in an unforeseen emergency, applies generally and does not depend on the site. Kishenganga Final Award, Part V; Decision on Clarification, Part V

Procedural history

1. 17 May 2010Pakistan begins the Kishenganga Arbitration against India.
2. 20 December 2013Kishenganga Final Award fixes a minimum flow of 9 cumecs. The same day, the Court decides India's request to clarify the Partial Award of 18 February 2013.
3. 19 August 2016Pakistan serves its Request for Arbitration under Article IX(5) and Annexure G. India asks for a neutral expert on 6 September and 4 October 2016. The World Bank pauses both appointment processes on 12 December 2016.
4. 31 March – 13 October 2022The World Bank lifts the pause and confirms the appointment of the Court's Chairman and of the Neutral Expert, Michel Lino.
5. 27–28 January 2023The Court holds its first meeting. India does not appear. A hearing on competence follows on 11–13 May 2023.
6. 6 July 2023Award on the Competence of the Court is issued, and Procedural Order No. 6 splits the proceedings into phases.
7. April–July 2024Site visit to the Neelum-Jhelum Hydro-Electric Plant (23–30 April 2024), followed by the hearing on the First Phase on the Merits (8–16 July 2024).
8. 27 June 2025Supplemental Award on Competence, issued after India's declaration of 'abeyance' on 23 April 2025.
9. 8 August 2025Award on Issues of General Interpretation, with Judge Al-Khasawneh's partly dissenting opinion and Professor Minear's concurring opinion. The Decision on Pakistan's request for clarification follows on 8 November 2025.
10. 15 May and 31 August 2026Supplemental Award concerning Maximum Pondage (15 May), then the Award on the Status of the Treaty in respect of India's 'abeyance' (31 August), after a hearing on 26–28 April 2026.

Tribunal, counsel and experts

Decided by

• Sean D. Murphy President, Court of Arbitration
• Wouter Buytaert Co-arbitrator, Court of Arbitration (umpire)
• Jeffrey P. Minear Co-arbitrator, Court of Arbitration (umpire; concurring opinion)
• Awn Shawkat Al-Khasawneh Co-arbitrator, Court of Arbitration (dissented in part on maximum Pondage)
• Donald Blackmore Co-arbitrator, Court of Arbitration
• Stephen M. Schwebel President, Kishenganga Court of Arbitration (PCA 2011-01)
• Franklin Berman Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)
• Howard S. Wheater Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)
• Lucius Caflisch Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)
• Jan Paulsson Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)
• Bruno Simma Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)
• Peter Tomka Co-arbitrator, Kishenganga Court of Arbitration (PCA 2011-01)

For the claimant

Office of the Attorney General for Pakistan · Twenty Essex Chambers · 3 Verulam Buildings Chambers · Fietta LLP · Kishenganga counsel · Attila Tanzi

For the respondent

Kishenganga counsel

Experts

Gregory L. Morris (claimant) · Peter J. Rae (claimant) · Syed Muhammad Mehar Ali Shah (claimant) · Jackie King (claimant) · K.G. Rangaraju (respondent) · Jesper Goodley Dannisøe (respondent)

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Keywords

• Indus Waters Treaty
• Western Rivers
• Kishenganga
• Ratle
• run-of-river hydro-electric plants
• maximum pondage
• Dead Storage Level
• low-level outlets
• gated spillways
• freeboard
• neutral expert
• parallel proceedings
• non-appearance
• treaty abeyance
• suspension of treaties
• countermeasures
• inter-State arbitration
• minimum environmental flow

Summary generated with AI from the published documents — refer to the award for the authoritative text.