Rhetoric, sabre-rattling and pursuit of domination have once again turned South Asia into a powder keg. This volatility is now amplified as two nuclear-armed nations, Pakistan and India, race for legal, political and diplomatic victories with the Court of Arbitration in Hague being the most recent front.
The Court of Arbitration, in Pakistan’s case against India’s Kishenganga and Ratle hydroelectric power plants, has reaffirmed the enduring relevance of the core principles of international water law. While India was quick to dismiss the commission’s findings, the court emphasised that it “remained cognizant of the need to satisfy itself that Pakistan’s claims are well founded in fact and law”.
The Indus Waters Treaty (IWT) remains a landmark example of treaty-based water allocation, praised by international law practitioners and scholars alike for surviving political tensions and wars. Signed in 1960 under the auspices of the World Bank, the treaty outlines a water sharing framework between Pakistan and India. It grants Pakistan exclusive rights to the Indus system’s western rivers and permits India only non-consumptive uses, such as run of river hydropower stations. These exceptions now lie at the heart of the legal dispute, which has been further exacerbated by India’s decision to hold the treaty in abeyance.
The genesis of the case lies in Pakistan’s claim that India’s hydroelectric projects on rivers allocated to Pakistan violate treaty parameters, enabling potential manipulation of river flows and threatening downstream agriculture and ecological stability. India argued that its projects were within permissible limits, based on best engineering practices, and argued that the court lacked jurisdiction because a ‘neutral expert’ was already examining related technical issues.
The court addressed jurisdiction, best engineering practises and the appointment of a ‘neutral expert’ on the merits. On jurisdiction, it ruled that “India’s non-appearance has no effect on the competence of the Court or on the legal effect of its decisions, including this Award”. On the argument of ‘best engineering practices’, the court ruled that technical discretion does not permit the derogation from legal obligation unilaterally. The court further determined that arbitration can proceed in parallel with technical fact-finding, provided there is “mutual respect and comity” between the processes, an obvious departure from India’s strict sequencing argument, and in line with broader international trends favouring procedural flexibility to resolve deadlocks. In a nutshell, the court found Indian’s arguments devoid of merit.
The judgment is firmly rooted in international legal norms. The principle of equitable and reasonable utilisation obliges riparian states to use transboundary watercourses fairly and proportionately, considering factors like geography, hydrology, population needs, existing uses and available alternatives. This principle does not demand equal sharing of water, but rather a balanced distribution of benefits and burdens. In the Indus context, it reinforces the IWT’s core rationale: Pakistan’s exclusive rights over the western rivers are balanced by India’s limited authority to generate hydropower without physically affecting downstream flows.
Equally important is the obligation not to cause significant harm. This requires parties to ensure that their use of shared waters does not damage the existing uses, livelihoods, and ecosystems of other riparian states Under the IWT, this principle is enforced through precise design constraints such as limits on pondage and specific intake and spillway placements to prevent upstream actions that could disrupt irrigation, power generation or ecological balance in Pakistan. These principles are not unique to the Indus Basin. In the Gabcikovo–Nagymaros Project, the International Court of Justice (ICJ) balanced environmental protection with treaty obligations. In the Pulp Mills case, the ICJ emphasised sustainable development and the duty of cooperation among riparian states.
India must recognise that allegations of terrorism cannot justify invoking the necessity defence to disregard treaty obligations. Weaponising water has no place in the international legal system and unilateralism in riparian disputes are recipe to disaster.
The writer is a lawyer and a PhD candidate at the University of Manchester. He tweets/posts miryasirabbas