India and Pakistan are co-riparian states. They share the Indus waters system comprising Indus and its tributaries: Jhelum, Chenab, Ravi, Beas and Sutlej. At Independence in 1947 partition led to the division of this waters system with Pakistan becoming the lower riparian state. When Punjab was partitioned along the Radcliffe boundary line the waterways and canals created by the British were divided between the two countries of India and Pakistan. Of these three rivers, Indus, Jhelum and Chenab flow through Indian Kashmir and then into Pakistani Punjab.?

The two countries met a number of times during the late 1940s and early 1950s but the water issue remained unresolved. However, both India and Pakistan accepted international arbitration on the waters issue and referred the matter to the World Bank. The Indus Waters Treaty was signed in 1960. The Treaty set up a transitional period of ten to thirteen years after which the three eastern rivers (Ravi, Beas, Sutlej) would fall exclusively to India’s share and the three western rivers (Indus, Jhelum, Chenab) exclusively to Pakistan’s. A permanent Indus Commission was also set up.

Since 1960, Pakistan has routinely pointed to instances when it believes India has broken the Indus Waters Treaty by either stopping or slowing down the water supply to Pakistan. The current disputes pertain to two projects – Baglihar and Kishenganga.

India is building the Baglihar hydro-electric project on the Chenab, one of the rivers whose water was assigned to Pakistan as part of the Indus agreement. The Indus Water Treaty contained provisions which allowed India to establish run-of-the-river power projects with limited reservoir capacity for power generation purposes. Availing of this provision, India established several run-of-the-river projects most of which were not objected to by Pakistan. However, Pakistan did protest about the larger Baglihar project. Pakistan’s argument was that the design parameters would provide India a greater ability to accelerate, decelerate or block the flow of river water and thus may give India strategic leverage in times of tension or war.?

At the core of the Kishengaga dispute is Pakistan’s contention that India’s proposed diversion of the Kishenganga (what Pakistan calls Neelum) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.” In addition, Pakistan objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. Pakistan asserts that the treaty places strict limitations on drawdown of water. Hence, Pakistan wants a legal declaration that the diversion of water by India was a breach of the treaty and would like India to stop work on the project until the decision of the arbitration panel. India’s contention is that the treaty permits India to move water from one tributary to another after power generation. India also refutes Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, insisting that there is very little agricultural activity there anyway.

India has always abided by the Indus Water Treaty and has never cut off the supply of water to Pakistan even during times of war, in 1965, 1971 or 1999. However, Pakistan’s policy makers continue to believe that with India controlling Kashmir, and the upper reaches of the Indus water system, India has Pakistan ‘by the jugular.’ This ties in with the belief of Pakistan’s leaders that Indian leaders have not accepted partition and the creation of Pakistan. Despite the fact that Pakistan’s fear has never been proven historically, Pakistani policy makers have never been able to fully trust Indians to keep their part of the Indus bargain.?

In 2007, an adjudicator appointed by the World Bank upheld some of the objections of Pakistan and asked for reduction in height of the dam. However, the adjudicator did not object to the Baglihar dam itself being a violation of the Indus Waters Treaty. In end-2008, Pakistan once again insisted that India broke the Indus agreement and demanded compensation for shortage of 0.2 million acre-feet of water in September 2008 when the Chenab river was blocked by India to fill the Baglihar reservoir. Discussions continued throughout 2009 without any solution. However, in June 2010 India provided an “assurance” that it would be careful in the future when using Chenab waters to fill the Baglihar dam and Pakistan “accepted” India’s promise in a “spirit of cooperation and goodwill.”?

The Kishenganga project, however, is now being sent for arbitration to the World Bank. Let us take a look at the intricacies of the arbitration process and the selection of personnel laid down in the 1960 Indus Waters Treaty. According to the treaty, a court of arbitration will consist of? 7 arbitrators in the following fashion – two arbitrators each will be appointed by each country and the remaining three arbitrators or umpires will be appointed from certain set categories of individuals. The chairman of the panel will be chosen from a list comprising the Secretary General of the United Nations and the President of the International Bank for Reconstruction and Development. Another umpire will have to be a highly qualified engineer and will be chosen from a list consisting of the President of the Massachusetts Institute of Technology in Cambridge, Massachusetts and the Rector of the Imperial College of Science and Technology in London. The third umpire has to be someone “well-versed in international law” and will be selected from a list of the following two persons – the Chief Justice of the U.S. Supreme Court and the Lord Chief Justice of England.

However noble the intentions of the framers of the treaty, what is striking is the belief that in order for neutrality to be there the arbitration panel must comprise people – like the American Chief Justice or the Rector of the Imperial College – who can be expected to have no knowledge or understanding of the subject. This reminds one of the Radcliffe commission for partitioning Punjab and Bengal set up by the British government in 1946. The commission comprised two people each chosen by the Indian Muslim League and the Indian National Congress and the chairman -- Radcliffe -- chosen by the British. The British hoped that someone who had no knowledge of India or its geography would be an ideal candidate -- he would ensure neutrality. The result, as we all know, was that since the people chosen by the Congress and the League never agreed on any issue it was left to Radcliffe and his staff to define the boundary line. As a result people in both countries were extremely unhappy and continue to be so till today. Such decisions cast long shadows and are best avoided.

In the case of the Indus Treaty arbitration provisions too, it is most likely that the two persons each chosen by India and Pakistan will have partisan views and so the views of the three umpires – who have very little understanding and also very little interest in the dispute – will be key. Instead of looking for so-called neutral umpires to decide the fate of the water dispute – an issue which will grow in importance as our water resources get scarcer and our population increases – would it not be better for the two countries to sit across the table and find a solution which is mutually acceptable and beneficial to both countries?

Aparna Pande has a doctorate in political science from Boston University and is a research fellow at Hudson Institute