Does the Permanent Court of Arbitration Have Jurisdiction Over India’s Water Treaty with Pakistan?

The Permanent Court of Arbitration (hereinafter, the “PCA”) has increasingly assumed jurisdiction over state-to-state disputes, even without explicit treaty provisions conferring jurisdiction. The recent controversy between India and Pakistan over the Indus Waters Treaty (“IWT” or “treaty”) in the Indus Waters Western Rivers Arbitration Case (hereinafter, the “Indus Case”) is a manifestation of this anomaly. The IWT, established in 1960, divides the utilisation of the Indus River system between India and Pakistan, creating a multi-level framework for resolving disputes under Article IX. This framework consists of three phases: (i) discussions between the two countries, (ii) referral to a Neutral Expert, and (iii) appeal to a “Court of Arbitration” in the event of unresolved dispute. Notably, nowhere in the treaty is the PCA identified as the forum for arbitration.

While Pakistan invoked the PCA proceedings for the Indus Case, India stressed that the PCA lacks any legal authority in this context. In April of 2025, India suspended the treaty following a terrorist attack in Jammu, India. It declared that any attempt by the PCA to interpret or enforce IWT’s provisions would be without legal validity.

This blogpost argues that while the PCA has no compulsory jurisdiction, its perceived authority rests on implicit consent, institutional practice, and reputational legitimacy. The analysis shall proceed as follows. First, a primer introduces the PCA’s jurisdictional foundation; second, three hypotheses are advanced to explain the emergence of its de facto jurisdiction; third, these hypotheses are tested against the IWT framework in light of the clash; fourth, the institutional dynamics underpinning the PCA’s authority are examined; and finally, a normative assessment is offered.

Primer: PCA’s Jurisdictional Foundations

The PCA was created by the 1899 Hague Convention for the Pacific Settlement of International Disputes. The convention did not craft a standing tribunal. Instead, it provided for an administrative framework, i.e., an “International Bureau,” a panel of arbitrators nominated by States, and model procedural rules for the constitution of tribunals and conduct of proceedings as set out in Chapters II and IV of the Convention. The PCA has no original jurisdiction, unlike the International Court of Justice. It acts only when States confer authority through treaty clauses or ad hoc agreements. As Shabtai Rosenne, former Israeli Ambassador to the UN and Member of the International Law Commission, notes, the PCA’s formation aimed “to institutionalise arbitration without judicializing it.” Shabtai Rosenne (ed), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 45 (T.M.C. Asser Press 2001).

While the PCA was conceived as a facilitator of ad hoc tribunals, it has evolved into something more akin to a court over time. The PCA’s hybrid identity of being part registry and part arbitral forum has enabled it to grow beyond its original mandate. The South China Sea Arbitration (Philippines v. China), under United Nations Convention on the Law of the Sea, illustrates this. An ad hoc tribunal decided the case, but the PCA’s hosting role was widely perceived as jurisdictional control.

The issue, therefore, is functional rather than definitional. The PCA’s authority in the present context rests upon three fragile foundations--treaty text, consent through practice, and institutional legitimacy. As the late Emmanuel Gaillard stressed, legitimacy in arbitration depends as much on perception and practice as on formal law. The IWT dispute illustrates the friction tensions among these very foundations.

Hypotheses of The PCA’s Jurisdiction

Three hypotheses may be advanced to evaluate whether the PCA has jurisdiction under the IWT. Each hypothesis exposes different fault lines in the relationship between text, practice, and legitimacy.

Hypothesis 1: Treaty Incorporation

If jurisdiction flows exclusively from explicit incorporation, the PCA’s authority under the IWT is tenuous at best. This formalist view demands precision of drafting and treats silence as exclusion. However, it presumes that the drafters of the IWT foresaw the full range of institutional frameworks available today, which makes the theory implausible. More critically, it aligns with India’s stance on the PCA having no legal mandate since the IWT does not explicitly designate it as a forum. From this perspective, Pakistan’s invocation of the PCA proceedings represents judicial overreach.

Hypotheses 2: Consent By Conduct

Another possibility is that jurisdiction is sustained by patterns of reliance, rather than an express reference. If States consistently allow the PCA to administer disputes, particularly when treaties are silent, they may generate a form of implied consent over time. This hypothesis resonates with Pakistan’s argument in this context. India has acquiesced in its institutional role by engaging with the PCA in the past or in a related context. Yet, it reveals a normative tension. Implied consent risks collapsing the distinction between facilitation and adjudication, thereby expanding authority without conspicuous sovereign authorisation.

Hypothesis 3: Institutional Legitimacy

Arguably, the most radical hypothesis is that jurisdiction is not conferred but constructed. For more than a century, the PCA has accumulated a reputational status by hosting tribunals, publicising awards, and showcasing itself as the “default” venue for interstate arbitration (Shabtai Rosenne (ed), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 45 (T.M.C. Asser Press 2001) 45-47).  Under this view, the PCA’s authority under the IWT stems more from institutional perceptions than legal mandates. This view supports Pakistan’s strategy, which legitimises the involvement of the PCA’s stature even if explicit consent is absent in the treaty. India discards this logic to argue that perception cannot substitute for a sovereign agreement.

Examining the Hypotheses

In 2016, Pakistan invoked Article IX of the treaty to request the World Bank (“Bank”) to convene a “Court of Arbitration”. Parallel to this, India sought a Neutral Expert. Following the conflicting requests, the Bank found it necessary to halt the proceedings. The Bank permitted the establishment of a tribunal under the PCA’s supervision in 2022. India objected, arguing that the PCA’s participation went beyond the bounds of consent and that the treaty did not anticipate it. These details can be used to examine the hypotheses in the following manner:

• According to the first hypothesis, India’s objection holds merit. It can be claimed that the treaty’s lack of mention excludes the PCA’s jurisdiction.
• The second hypothesis supports Pakistan’s claim that legitimacy can be awarded through state practice. This can be substantiated by previous disputes related to the IWT. The 2013 Kishenganga Arbitration case was overseen by the PCA without any dissent, indicating implied consent.
• The third hypothesis further reinforces Pakistan’s claim through institutional perception. Over time, the PCA has come to be viewed as the “Court of Arbitration” within international law, without explicit references.

Thus, the Indus Case exposes the fragile foundation of PCA’s authority. Its jurisdiction depends less on treaty incorporation than state practice and institutional perception.  

The Anatomy of the PCA’s Jurisdiction

The legitimacy of the PCA’s jurisdiction is theoretically based on a discrepancy between its formal designation and functionality. The PCA is formally an administrative organ, but functionally, it is increasingly treated as a court. This conflation empowers a jurisdictional creep.

There are two problems here. Firstly, the importance of consent is undermined when the PCA is equated with the “Court of Arbitration.” The principle of pacta sunt servanda, which obliges parties to honour their agreements, forms the foundation of arbitration. Jurisdiction can be exercised only when states have expressly consented to it. Presuming that the PCA is the default arbitral forum, therefore, dilutes the element of consent.

Secondly, what encourages this conflation is the PCA itself. It cultivates perceptions of authority by advertising itself as a global arbitral court. While self-positioning enhances legitimacy, it also risks overstating its original legal mandate. In this regard, the PCA subtly transforms from facilitator to adjudicator.

This jurisdictional creep grants the PCA authority through reputation rather than consent, producing uncertainty about when states are genuinely bound. In the Indus Case context, India perceives this as an expansion of jurisdiction beyond the treaty bargain.

Normative Evaluation

Should the PCA’s jurisdiction be recognised in the absence of explicit treaty incorporation? Normatively, the answer must be no.

A purely consent-based approach guards state authority but at the risk of paralysing dispute settlement whenever the treaty language is ambiguous. Conversely, defaulting to the PCA as a “quasi-court” enhances efficiency but undermines the principle that jurisdiction flows from explicit state agreements. Alan Boyle and Christine Chinkin, The Making of International Law (OUP 2007) 266–270.

A more productive framework is to treat the PCA’s involvement as an exercise of institutional opportunism rather than an exercise of jurisdiction. The PCA has blurred the line between administrative registry and judicial authority by branding itself as a “Court of Arbitration”. Although this branding strategy can effectively attract disputes, it imposes interpretive pressures on treaties that were never designed with the PCA in mind. The IWT epitomises this slippage. While it provides for arbitration, it does not corner the PCA specifically.

Therefore, the normative lesson is not merely that the PCA’s jurisdiction is derivative. Instead, it is that international adjudication must remain vigilant against the creeping constitutionalism of arbitral institutions, lest efficiency replace consent as the foundation of legitimacy.

Conclusion

The present controversy arises from a structural ambiguity where the IWT lays down provisions for creating a Court of Arbitration but does not designate the PCA for the same. The PCA’s current involvement is thus grounded in procedural arrangements and the pattern of past practices of the parties, not in any autonomous authority.

On that basis, the answer to the central question is clear. In the ongoing IWT disputes as well as any future disputes that are crucial to the treaty, the PCA lacks original jurisdiction. Its function depends on state approval and is entirely derived from the treaty. Assigning jurisdiction to the PCA itself distorts the fundamental principle of consent in international arbitration by confusing the institutional secretarial functions with adjudicatory authority.

A sustainable future necessitates a thorough re-evaluation of institutional practice. To prevent confusion between its functions as a secretariat and tribunal, the PCA should make its branding clearer. Additionally, to prevent parallel proceedings from compromising legitimacy, the Bank, as guarantor to the IWT, needs to assume a more robust coordinating role. India and Pakistan would also benefit from negotiating procedural protocols that preserve the treaty’s consent-based ethos while leveraging the PCA’s administrative efficiency. Unless these steps are taken, the lack of legitimacy risks widening and eventually transforming what is designed as a technical water-sharing mechanism into a protracted constitutional contest over arbitral authority.