India's hydroelectric projects on the western rivers were always permitted. What is now contested is who has the authority to say so, and that is a far more dangerous argument.
By Vipul Tamhane
On 15 May 2026, a bench sitting at The Hague issued a supplemental award on maximum pondage, the volume of water India may hold behind a run-of-river plant on the Chenab and the Jhelum. Islamabad welcomed it as confirmation that the Indus Waters Treaty imposes real, enforceable limits on India's ability to control water.
New Delhi responded within 24 hours, calling the award null and void and the Court of Arbitration illegally constituted. Both statements are, in their own terms, entirely coherent. That is precisely the problem.
For 66 years the standard Indian defense has been simple, and it remains substantially correct: India is not violating the Indus Waters Treaty; it is maximising its legal rights under it. As a proposition of treaty law, this is defensible. It is also, in 2026, an answer to a question that has stopped being asked.
What the Treaty actually permits
The 1960 Treaty did not hand the western rivers to Pakistan and tell India to look away. It allocated the eastern rivers, Ravi, Beas, Sutlej, to India, reserved unrestricted consumptive use of the Indus, Jhelum and Chenab to Pakistan, and then carved out a set of specific, enumerated Indian entitlements on those same western rivers: domestic use, non-consumptive use, limited agricultural use, defined storage, and, most consequentially, run-of-river hydroelectric generation under the technical parameters of Annexure D.
Those parameters are exacting. They govern pondage, spillway type and elevation, intake level, freeboard, and drawdown. But they exist because the Treaty anticipated Indian infrastructure on the western rivers. Water passing through a turbine and returning to the channel is not water taken. Pakistan receives the same volume, downstream, as it always would have. The disagreement has never been about theft.
Nor has adjudication been the one-sided rout that headlines suggest. In 2007, Neutral Expert Raymond Lafitte upheld Baglihar while trimming its pondage, raising the power intake and reducing freeboard, and, critically, held that dam engineering could not be frozen at the state of the art in 1960. In 2013, the Court of Arbitration upheld India's right to divert Kishenganga's waters for power generation, while requiring a minimum environmental flow downstream and constraining drawdown flushing. The pattern is consistent and it is not a defeat: build, yes; calibrate the design, also yes.
So the substantive contest was always about millimetres of engineering, not sovereignty over rivers. Freeboard. Gate elevation. Live storage. This is a quarrel between hydrologists that acquired a nuclear-armed audience.
The forum has swallowed the merits
What changed is not the dam. It is the machinery for deciding about the dam.
Article IX of the Treaty sets out a graded ladder: the Permanent Indus Commission first, then a Neutral Expert for technical differences, and a Court of Arbitration only for disputes that are not technical. Ladder, not menu. In 2015 Pakistan sought a Neutral Expert; a year later it changed course and pressed for arbitration. In 2022 the World Bank, as guarantor, permitted both processes to run in parallel, a decision India has never accepted and which created, at a stroke, the possibility of two international bodies reaching contradictory conclusions on identical facts, with no rule anywhere in the Treaty for reconciling them.
That possibility is now reality. In January 2025 the Neutral Expert affirmed his own competence over all seven referred points of difference on Kishenganga and Ratle, a decision New Delhi welcomed and continues to participate in. In August 2025 the Court of Arbitration issued its award on general interpretation, holding that India's hydroelectric works must conform strictly to the Treaty's stated criteria rather than to what India might regard as optimal engineering practice. The May 2026 pondage award follows the same logic: the limits bite at the design stage, and cannot be cured afterwards by a promise of operational restraint.
India rejects all of it, not on the merits, but at the threshold. If the forum is a nullity, so is everything it says.
The abeyance problem
There is one part of India's position that deserves harder scrutiny than it usually receives from its own commentators. After the Pahalgam attack of April 2025, India placed the Treaty "in abeyance." The Court of Arbitration held in June 2025 that the Treaty contains no provision for unilateral abeyance and reaffirmed its jurisdiction. India dismissed that too.
The strategic logic of abeyance is unarguable: a state cannot be expected to service a cooperative framework with a neighbor that is simultaneously exporting terrorism onto its soil. But strategic logic and treaty law are not the same instrument.
The Indus Waters Treaty has no termination clause and no suspension clause; arguments under the Vienna Convention on material breach or fundamental change of circumstances are available, but they are arguments, and India has chosen not to make them before any tribunal.
That leaves the most consequential Indian legal claim of this decade tested nowhere, contested everywhere, and defended only in press briefings.
The cost of an empty chair
Non-participation is not neutrality. It is a forfeited narrative. Because India does not appear before the Court of Arbitration, the only reasoned, published, internationally circulated legal record on Kishenganga, Ratle and pondage is now being written by a bench that hears Pakistan's case and never India's.
Islamabad has converted an engineering disagreement into a legitimacy story, and it is winning that story by walkover in every forum where India declines to stand.
None of this makes India a violator. The Treaty permits the projects. The Neutral Expert track is the Treaty-consistent track, and India is right to say so. But "we are acting within our rights" is a defense, and defenses do not build anything. A right that cannot be authoritatively confirmed is a right under permanent challenge, and permanent challenge, in a basin shared by two nuclear states, is not a stable equilibrium.
The way out is not a louder rejection. It is the path India itself opened with its Article XII(3) notices of January 2023 and September 2024: renegotiate. A treaty drafted for a world of stable glaciers, predictable monsoons and unpoliticised engineering cannot govern a basin facing accelerating sediment loads, erratic flows and weaponized litigation. Fix the dispute-resolution architecture so that one forum, not two, has the final word. Build the climate and sediment provisions the 1960 drafters could not imagine.
India's lawyers are right about the dams. That is no longer the argument worth winning.
(Vipul Tamhane is a counter-terrorism expert and governance consultant)
The views expressed are not necessarily those of The South Asian Times
