International Rivers linking project by India, elucidation from international water law: anticipated potential environment threats on Bangladesh.

লিখেছেন লিখেছেন শাহরিার কবির ০৩ জানুয়ারি, ২০১৩, ০৭:৪৩:০৭ সকাল

Water is not a commercial product like any other but rather a heritage that must be protected, defended and treated as such. 'Whisky is for drinking, water is for fighting over," Mark Twain once said. At the start of the 21st century, his gloomy view on the water side of the equation has been getting endorsements from an impressive - if unlikely - cast of characters. Like oil and other energy resources, water is a source of life and livelihoods. Last month in Sri Lanka, the refusal of Tamil Tiger rebels to open a sluice gate for canals that supply water to rice farmers sparked a full-scale military assault that claimed the lives of 17 aid workers . International river basins cover more than half of the land surface. With close to 300 major watercourses shared by two or more states. The UN forecasts that more than half of the world population will surfer direct consequences of water scarcity. The situation is particularly critical in developing countries. The conflict often arises as a result of unequal distributions of water. Rising sea-levels may also lead to increased pressure on freshwater supplies in coastal zones . It is in response to these increasing needs that mankind has developed ways of manipulating freshwater flows, such as through large-scale dams. The combination of these freshwater diversions/storages and the increasing need for water are likely to lead to further conflicts and water conflict turn into the focus of international forums, and is increasingly becoming subject to international laws and agreements. These agreements include the United Nations General Assembly Charter of Nature (1991), the Bern Protocol (1977), the Environmental Modification Convention (1977) and the Helsinki Rules (1966) . The recent International Law Commission of the Law of Non-Navigational Uses of International Watercourses has promoted many of the ideals of international law in regards to water-sharing in its 32 articles .

In Indian subcontinent, water is more then life. People consider river is divine; Ganges known as Holly River. More than 500 million people live in the Ganges – Brahaputra- Meghna basin (GMB). The problem over the Ganges is typical of conflicting interests of up and down stream riparian. India developed plan for water diversions for its own interest. Bangladesh desires to protect its legitimate right of natural flow of the water by using International law. Bangladesh government have focused primarily on management practices and environment policies, rather then prevention of the violence and conflict that impacts water supply. My vision is to focus international legal regimes that are designed to protect fresh water. I reflect on three specific objectives:

Firstly, to discuss the principle of international water laws,

Secondly, to analyze the scope of transboundary water management under international legal regime with special focus on equitable and reasonable utilization of international watercourse,

Thirdly, to suggest about the possible dispute settlement system

Water conflict between Bangladesh and India:

Bangladesh is a deltaic land cress-crossed by 200 large and small rivers. Most of those have originated from three major international rivers - the Ganges, the Brahmaputra and the Meghna and their tributaries and distributaries. These rivers system constitute catchments area of 1.75 million sq. km of which 8% lies within Bangladesh. These rivers system discharge about 175 billion cum of water and carry about 2.4 billion tons of sediment annually to the Bay of Bengal. There are 57 international rivers flow through Bangladesh out of which 54 rivers enter Bangladesh from India and rest three from Myanmar. The GMB river basins covers five countries- China, India, Nepal, Bhutan and Bangladesh and constitute around 1.75 Million sq. km with average annual runoff of around 1200 cu km About 80% runoff occurs in the four months of monsoon June to September. The GBM basin is the most populous area in the world with a population density of around 700 per sq. km.

Farakka issue-

India decided to construct a barrage across the Ganges at Farakka in 1951 in order to redirect water to Bhagirathi to maintain its navigability which was being vulnerable due to siltation. Construction of the Farakka Barrage started in 1960, planned for discharge of 27,00,000 cusec and a head regulator for diversion capacity of 40,000 cusec of flow, unilaterally violating the international norms of any construction for diversion of water on any international river. India completed Farakka Barrage in 1974 and approached Bangladesh for test operation. The then Prime Minister Sk. Mujibur agreed. Initially in 1975 India was allowed to divert flows varying from 11000 cusec to 16000 cusec for a period of 41 days from 21 April to 31 May '75 with the accepting that India will not run feeder canal until a final agreement was reached between India and Bangladesh on the sharing of Ganges water. Violating this understanding India started diverting the Ganges water in the upstream unilaterally from 1976 .

River linking project-

The Ganges-Brahmaputra-Barak/Meghna (GBM) is a rambling, integrated and international drainage system that extends from the Vindhyas in the south to the Himalayas in the north, and the Aravallis in the west to the borders of Myanmar in the east. As early as 1850s, Sir Arthur Cotton, a British military engineer planned the linking of India’s rivers to provide inland navigation as a substitute to the railways. The proposal of linking rivers has been sleeping for almost two decades though India’s National Water Development Agency (NWDA) has been working persistently since its establishment in 1982 in order to set up ‘National Water Perspectives’ brought out by the Indian ministry of Irrigation. The proposal/project has still been found on the Report of the National Commission for Integrated Water Resources Development Plan prepared by NWDA. On 14 August 2002, India’s president APJ Kalam in his speech to the nation on the eve of Independence Day declared, “It is paradoxical to see floods in one part of our country while some other parts face drought. This drought-flood phenomenon is a recurring feature” and he wished-for transferring water from ‘flood-affected’ and ‘surplus’ areas to ‘drought-affected’ and ‘deficit’ areas . This inter-basin transfer of water is called the Interlinking of Rivers Project (ILRP).

Subsequent to President Kalam’s speech, an intervention petition was filed in the Supreme Court of India in the ongoing Yamuna Pollution Case. The Court converted it into public interest litigation (PIL) and issued notices to the union and state governments seeking responses to the river linking proposal. The Court also directed that a Task Force should be set up for working out the modalities . Responses to the Court Notice were so low that only Union Water Resources Ministry and Tamil Nadu government sent formal reply to the Court. It is worth mentioning that 25 states did not reply in time. The Court explained it rather mysteriously; their ‘no reply’ was translated into ‘no objection’ to the river linking idea’ . The government opined that in any case it would take about 45 years to complete the links . Despite quietness on almost all the states’ front, the Supreme Court of India concluded the matter in a strange manner. On 31 October 2002, a bench headed by the then Chief Justice of India, B. N. Kirpal made an order ‘suggesting’ the government to take up the river linking proposal expeditiously and complete it in ten years.

Schwarzenberger states “ it is controversial whether international customary law or general principle of law recognized by civilized nation impose any restraint on states regarding rivers which traverse the territories of several States… until more convincing evidence of the existence of restrictive rules of international customary law or general principles of law recognized by civilized nations is forthcoming, the term international rivers must be reserved to rivers, whether in a geographical sense, national, binational, or multinational, the regime of which is the subject of international treaties.”

John Vidal said that if the project is implemented, the livelihood of 100 million out of the 130 million people of Bangladesh will be permanently damaged.

Feasibility of the River-linking Project:

The major objective of the proposed ILRP is to eliminate floods and droughts in India. Due to large variations in geographic settings in India floods and droughts occur simultaneously in different parts of the . However, over 80% of the subcontinent’s rainfall occurs during the rainy season between June and August. As a result, most rivers in India experience peak flows almost at the same time. This fact makes it difficult to physically move water from one basin to another during rainy season. Moreover, the proposed amount of water to be transferred, 173 billion cubic meters (bcm), accounts for about 8% of the total river flow of 1869 bcm in India . Therefore, it is likely that the transfer of water during the rainy season will not have any significant impact on flooding. On the contrary, the transfer of this additional water during the rainy season is likely to intensify flooding in areas that are not normally flooded, such as the watershed of Subernalekha. Canal dimensions in the ILRP measure 100 meters wide by 10 meters deep . Natural slopes in upper reaches of the Ganges-Brahmaputra watershed vary between 0.0025 and 0.0038 . Using the Manning Equation expose that a canal, with the specifications listed above, dug in materials characteristic of the Ganges-Barhmaputra watershed will be capable of carrying between 100,000 (2832 cumec) and 140,000 cusec (3966 cumec) of water, which is greater than the average minimum discharge for both Ganges (60, 000 cusec or 1700 cumec) and Brahmaputra (110, 000 cusec or 3116 cumec) rivers during the dry season . During rainy seasons the discharge in both Ganges and Brahmaputra rivers exceeds 1,750,000 cusec or 50,000 cumec. Thus, a link canal will have the potential to transfer only 5-8% of the flood discharge of these rivers.

International Water Law(IWL)

English Common Law treated ground water either as part of the overlying land or as a commodity, subject to its capture (i.e., via a well). It was also subject to absolute ownership by the super adjacent property owner. Under the French Civil Code, a landowner could make full use of springs located on his property so long as he did not affect the lands of his neighbors. Islam considers the sharing of water a holy duty .

International water law (IWL) is a term used to identify those legal rules that regulate the use of water resources shared by two or more countries. The primary role of IWL is to determine a state’s entitlement to the benefits of the watercourse (substantive rules) and to establish certain requirements for states’ behavior while developing the resource (procedural rules). The law governing IWL has evolved through both customs and treaties, and has been influenced by other “sources” of law: general principles of law, judicial decisions, and resolutions and recommendations of international organizations Which is clarified in the Statute of the International Court of Justice (ICJ) Article 38 (1). The International Law Association (“ILA”) Helsinki Rules of 1966 and Seoul Rules of 1986 represent some of the earliest efforts to formally and directly address the status of transboundary and international ground water resources under international law .Article II of the Helsinki Rules defines an international drainage basin, the unit used to delineate the geographic scope considered under the Rules, as a transboundary geographic area defined by the extent of the watershed . This definition includes “surface and groundwater.” The Seoul Rules reinforced and expanded the Helsinki Rule that ground water is a proper subject of international law by including all types ofaquifers . While the development of these two Rules suggests progress in the evolution of international norms and principles for transboundary aquifers, their application has had limited influence on state practice and treaty development. The 1997 Convention defines watercourse as “a system of surface waters and ground waters constituting by virtueof their physical relationship a unitary whole and normally flowing into a common terminus.”

Three Theories of international law on the diversion of rivers

Doctrine of Absolute Territorial Sovereignty.

Every state has an absolute right to all waters within its Territorial Jurisdiction. It’s popularized in the United States by Attorney general Judson Harmon , the doctrine states that: there is no duty or obligation in international law on any state to restrain its use of the water within its territory to accommodate the needs of another state jurisdiction and control of a state over the waters of an international river wholly in its territory is exclusive.” The doctrine is honored more with opposition than privileged. H. A. Smith , states that “this doctrine is essentially anarchic…permitting every state to indict irreparable injury upon its neighbors without being amenable to any control save the threat of war.”

Limited Territorial Sovereignty.

No state can use the water of a communal river in a manner which substantially affects other states without their prior consent. A general principle of international law that while each state has sovereign control within its own boundaries, in so far as international rivers are concerned, a state may not exercise that control without taking into account the effects upon other riparian states. The doctrine of prior consent is reinforcing by widespread treaty practice.

Professor Hall states “obstruction or diversion of the flow of a river by an upper riparian state to the prejudice of a lower is alleged to be forbidden on the principle that no state is allowed to alter the natural condition of its own territory to the disadvantage of the natural condition of the territory of a neighboring state and the same principle applies to the use of the river so as to cause danger to a lower riparian state.”

Professor Oppenheim “ An abuse of a right enjoyed by virtue of international Law…occurs when a state avails itself of its right in an arbitary manner in such a way as to conflict upon another state an injury which cannot be justified by a legitimate consideration of its own advantage… The maxim, sic utere tuo ut alienum non laedas… is one of the general principles of law recognized by civilized States which the Permanent Court is bound to apply by virtue of Article 38 of its Statute.

C. Doctrine of Equitable and reasonable utilization

Water of a communal river must be equitable apportioned. It permits each basin state to a reasonable and equitable share of water resources for the beneficial uses within its own territory. Equitable share does not necessarily mean equal share of waters. In determining equitable share relevant factors such as the geography of the basin, hydrology of the basin, population dependent on the waters, economic and social needs, existing utilization of waters, potential needs in future, climatic and ecological factors to a natural character and availability of other resources etc. should be taken into account .

The International legal regime:

The Madrid Declaration of 1911 was the first systematic basic recommendations on non-navigational uses of international watercourses . It discouraged

• Unilateral alterations of water regime in international watercourses

• Modifications of international rivers harmful to other riparian States

Barcelona Convention 1921

1921 Convention and Statute on the Régime of Navigable Waterways of International Concern widely known as Barcelona Convention, is significant for transboundary water management, of which the British Empire along with New Zealand and India was a party. The Barcelona Convention played a very significant role in the earlier negotiations and communications for the multilateral management of the Ganges basin. In 1950s, Nepal suggested Government of India to declare the Ganges as an international river under the Barcelona Convention . In the letters to the Government of India, dated 6th February 1957 and 30th May 1957, then Government of Pakistan (Bangladesh after 1971) opposed the construction of India’s unilateral Farakka barrage project by quoting Article 10(1) of the Convention which restricts unilateral construction in an international waterway . India vetoed Nepal’s suggestion to declare the Ganges as an international river under this convention and condemns Barcelona Convention on 17th March 1956 .

The Helsinki Rules 1966.

The International Law Association adopted the Helsinki Rules on the Uses of the Waters of International Rivers at the fifty-second conference, held at Helsinki in August 1966.

Article II defines “international drainage basin”.

Article IV of the Helsinki Rules ascertains the doctrine of equitable and reasonable utilization of the water resources of the international drainage basin.

Article V defines the relevant factors that should be considered in determining the reasonable and equitable share of water resources in an international drainage basin.

Articles IX-XI provides provisions for controlling pollution of an international drainage basin on the basis of the principle of equitable utilization.

Articles XXX to XXXVII of the Helsinki Rules deal with the guidelines for dispute settlement and arbitration mechanisms.

UN Convention on Non-Navigational uses of International Watercourses (1997)

On 21st May 1997, The United Nations General Assembly adopted the Convention on Non-Navigational Uses of International Watercourses widely known as UN Watercourses Convention. Even though this Convention is not in force yet, it contains the general customs and principles of international water laws that have been developed by the work of international judicial bodies and scholars of relevant field . The scope of the Articles of the Convention is shortly analyzed below.

Article 2 of the convention defines “international watercourse” as a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus, parts of which are situated in different states.

Article 5 adopts the doctrine of equitable and reasonable utilization: “Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefore, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse”.

Article 6 defines the relevant factors to determine equitable and reasonable utilization.

Article 7(1) of the convention approves the principle of the obligation not to cause significant harm. In the Working Group of UN Watercourses Convention, Bangladesh voted in favor for of the Articles 5-7, whereas India abstained.

Article 8 (1) advocates the general obligation to cooperate for the optimal utilization and adequate protection of the international watercourses. Article 8 (2) encourages the riparian countries to establish joint mechanisms or commissions to facilitate cooperation. Article 9 obliges the watercourse states to exchange the data and information. Article 25 (1) stipulates, “Watercourse States shall cooperate, where appropriate, to respond to needs or opportunities for regulation of the flow of the waters of an international watercourse”.

Part III of the convention (Article 11-19) and Article 24 (1), incorporate the doctrine of consultation and notification. Articles 13 to 19 describe the detailed procedures for the notifications, consultations and negotiations on any planned measure in an international watercourse. Article 24 (1) stipulates, “Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism”. Thus these articles clearly endorsed the doctrine of consultation, notification and cooperation.

Articles 20, 21 and 22 attribute the protection and preservation of watercourse ecosystems on the basis of the doctrine not to cause significant harm. Article 21 necessitates the preservation and protection of the watercourse ecosystems. Paragraph 2 of the Article 21 entails watercourse states to individually and/or jointly prevent, reduce and control the pollution of the international watercourse that may cause significant harm to other watercourse states, or to their environment, including harm to human health, to the use of any beneficial uses of the waters or to the living resources of the watercourse. Thus Article 21 (2) widens the scope of the “not to cause significant harm” principle, which is adopted in Article 7 (1) of the Convention, to preserve watercourse ecosystems as well as human health. It also recommends watercourse states to take steps to harmonize their policies for preserving watercourse ecosystems. Article 33 of the Convention provides detailed provisions for settlement of disputes.

INTERNATIONAL WATER LAWS AS A LEGAL TOOL: THE GABCIKOVO-NAGYMAROS CASE

The ICJ decision of 25th September 1997 on the case concerning the Gabcikovo-Nagymaros is a good example of the international applicability of the doctrine of equitable utilization and obligation not to cause significant harm. This case shows that an international watercourse is constrained in part by the limits of equitable use, in part by evolving environmental obligations, and in part by considerations of sustainable development . The ICJ was presented with a controversy between Hungary and Czechoslovakia over a 1977 bi-lateral treaty on the Danube River regulating the development of a series of installations for improving the hydro-power generation, the environment, and navigation, flood and ice control on the Danube River. The main feature of the 1977 Hungary-Czechoslovakia treaty was the development of hydroelectric power and navigation, with projects to be carried out in each country at its own expense. The dispute arose when Hungary unilaterally suspended the work (13th May 1989) on its portion causing Czechoslovakia (now Slovakia) in turn to unilaterally implement “Variant C”, one of the Czech/Slovak alternatives for developing the relevant section of the Danube. Variant C created a major decrease in the flow of Danube River downstream in Hungary (Paragraph 65 of ICJ 1997). Hungary attempted to unilaterally terminate the 1977 treaty. Both countries had undergone dramatic political changes, and had determined that the project was environmentally unsound.

The ICJ deliberated the case for four years, and decided in 1997 that both Hungary and Czechoslovakia/Slovakia had committed internationally wrongful acts and both parties are under an obligation to pay compensation. The ICJ required that the settlement of accounts for the construction of the works must be resolved in accordance with the 1977 Treaty and related instruments. The ICJ decided the case on general international treaty law, but referred to Article 5 of the UN Watercourses Convention that focuses equitable and reasonable utilization of water resources in paragraph 147. The decision reads “Re-establishment of the joint régime will also reflect in an optimal way the concept of common utilization of shared water resources for the achievement of the several objectives mentioned in the Treaty, in concordance with Article 5, paragraph 2, of the Convention on the Law of the Non-Navigational Uses of International Watercourses”.

The court concluded that by implementing Variant C, Czechoslovakia/Slovakia violated the basic right of Hungary to the equitable and reasonable share of the Danube river water. The ICJ also decided “Hungary is entitled to compensation for the damage sustained as a result of the diversion of the Danube, since Czechoslovakia, by putting into operation Variant C, and Slovakia, in maintaining it in service, deprived Hungary of its rightful part in the shared water resources, and exploited those resources essentially for their own benefit.”

The ICJ endorsed the doctrine of equitable and reasonable utilization by endorsing the principal obligation codified in 1997 UN Watercourses Convention.

The Berlin rules 2004

The Berlin rules on water resources were intended to replace the 1966 Helsinki rules on the use of waters of international rivers .

State Practice – Mekong Basin Agreement

The ‘Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin’ concluded by Cambodia, Laos, Thailand and Vietnam on 4 May 1995 shall be examined as the most recent agreement that has followed the wholesome principles of international law developed over a long period of time and norms of interstate conduct in the matter. The objectives of the agreement are provided in the first three articles of the agreement .

The most practical course open to Bangladesh and India for sustainable benefits is to aim at a similar agreement with all Watercourse States of the GBM Basin.

International Dimensions

The rivers to be linked under the Himalayan component of the ILRP are trans-boundary Rivers, i.e., they cross the boundary of more than one country. According to the 1966 Helsinki Rule, addressing water rights as they relate to international rivers, all basin states of an international river have the right to access an equitable and reasonable share of the water flow . There have been many examples of integrated management plans to address water resources of international rivers around the world including the Colorado, Rhine, Danube and the Amazon rivers .

Because many of the rivers in the ILRP are international rivers, it is debatable if India’s Supreme Court has the authority to decide the fate of resources belonging to other countries . For example, most of the major tributaries of the Ganges originate in Nepal, and the Brahmaputra originates in Tibet, China. We argue that only a watershed-based plan that guarantees a fair and equitable allocation of water resources among all stakeholders can ensure ecological and socio-economic stability of the Indian subcontinent.

We contend that the Ganges Water Sharing Treaty of 1996 between Bangladesh and India should serve as the basis for regional watershed management dealing with international rivers. This treaty states that "both Governments agree to conclude water sharing Treaties/Agreements with regard to other common rivers". The expression "other common rivers" includes not only the Brahmaputra but also other common rivers that flow through Bangladesh from India.

According to Article #9 of the Ganges Water Sharing Treaty, both countries are obligated to conclude water-sharing agreements of all common rivers. India is supposed to inform Bangladesh of any project or plan affecting the upper reaches of international rivers that have the potential to adversely impact its environment or economy .

Impact to the Floodplain, Delta Plain and Coastal Plain

There is a dynamic balance between sediment influx to a delta and sea level. When the river-borne sediment influx is adequate a delta grows seaward, or if sea level is rising, it builds vertical. However, if the sediment influx is diminished, coastal erosion can reduce the land area of the delta. About two-thirds of the sediment supply to Bangladesh is carried by the Ganges and its tributaries. Thus, the water and sediment carried by the Ganges is vital to the existence of the Ganges-Brahmaputra delta, the Bengal delta, sustaining the land areas of both Bangladesh and West Bengal, India. Should the influx of sediment be curtailed by the unilateral diversion of rivers by the ILRP, the growth of Ganges-Brahmaputra delta will be adversely affected .

Worldwide, sea level has been rising since the end of the last glacial period some 10,000 years ago. The rate of sea-level rise varies from place to place. The rate of sea level rise in the Bay of Bengal is about 5 to 7 mm per year . The Ganges-Brahmaputra delta has been growing upward at a rate that exceeds the rate of relative sea-level rise. In fact, the amount of river-borne sediment was enough, not just to keep pace with the competing sea level, but also to generate deposits at the mouth of the major rivers. ILRP will upset the natural balance of water flow and those sedimentation processes which are fundamental to the continuation and growth of floodplains and the Bengal delta.

More specifically, if the amount of sediment influx in the coastal areas is reduced by the diversion of the rivers, then in just over a hundred years a relative sea-level rise of about 1 meter in the Bay of Bengal will severely curtail the delta growth, and will result in submergence of about 17% of Bangladesh, displacing 13 million people. Over 100 million people live in the low-lying delta plain. The Sundarban, the largest mangrove forest in the world and a world heritage site, will probably be destroyed. This unique habitat for plant and animal species is already threatened by salt water intrusion, partly because the flow of the Ganges in the dry season was diminished following the construction of the Farakka. The total amount of sediment load in Bangladesh’s rivers has decreased from 2.4 billion tons/year in 1970 to 1.2 billion tons/year in 1991 .

Ecological Effects of Dams, Diversions, and Inter-basin Water Transfers

The impact on freshwater ecosystems of this inter-linking of rivers project, a specific form of water diversion, is particularly significant because it affects the hydrologic regime of both the donor and the receiving ecosystems. Changes in the hydrologic regime because of dams and diversions trigger changes in the sediment regime, habitat structure, and water chemistry. Current diversion of up to 60% of the Ganges water over 25 years by the Farakka Barrage has already caused: (a) reduction in surface-water resources, (b) the destruction of wetlands which serve as the breeding and raising grounds for 109 species of Gangetic fishes and other aquatic species, (c) a decrease in the volume and quality of the organic matter entering the wetlands, (d) an increase in waterborne diseases, (e) a decrease in sediment flux to floodplains and coastal plains, and (f) an encroachment of saltwater in coastal rivers further inland . Removal of more water through river-linking project will further aggravate this situation.

Dispute resolution:-

The international law, agreements and forums have all pointed towards the importance of achieving a dispute resolution regarding water-sharing disputes. There are three main types of dispute resolution; unilateral, bilateral and multilateral.

Unilateral: Unilateral action does not solve a dispute, but simply sees one nation enforce its will over another/others. Generally this can be seen through a powerful state forcing an agreement or situation upon its weaker neighbour/s. This is much easier if the bigger state is an upper riparian, however if the larger state is lower riparian it has to resort to threats or aggressive action to implement the changes that it demands. It is this fear of aggression and an unfavourable result for other riparian that has placed general international opinion against unilateral actions.

The Unilateral Process within the Ganges Case-study

Unilateral action results generally when the debate exists between two states that are not of equal size and strength, and the Indo-Bangladesh situation falls neatly within this parameter. India is a prime example of a larger, upper riparian state that can impose its will over smaller, lower riparian. India is in a strong position in regard to regional politics, and this has allowed it to practice a unilateral policy to water sharing with Bangladesh . India was not pursuing a consciously unilateral approach, but it implicit that Bangladesh, whom it had helped in 1971, would not disagree with India’s withdrawals from a river that mainly fell within Indian Territory. However, Bangladesh did object and has claimed at various stages (1975-77 and 1988-1996) that India had intentionally pursued a policy of unilaterally withdrawing Ganges water at will, and ignoring Bangladesh’s lower riparian rights to an international river . India also has made massive withdrawals at various points further upstream, before the Ganges even reaches Farakka .

A key international horror of unilateral action is that other countries undergo and Bangladesh has indeed suffered heavily. Salinity and salt-water incursion, caused by the declining strength of the Ganges’ freshwater flow, have had devastating agricultural, forestry and industrial consequences. The water-based sectors of fishing and agriculture were also heavily affected . Bangladesh’s subsequent appeals to various international institutions resulted in official concerns being expressed by the UN, Commonwealth, Non-Aligned Movement, Islamic League and the World Bank . There were fears that India was neglecting its ‘jus cogens’ through pursuing a unilateral policy behind the mask of a procrastinating bilateral policy. It was merely being a regional bully who was doing what it wanted, and using Farakka as a political leverage over Bangladesh in an attempt to gain various concessions . Both Bangladesh and Pakistan have stated that India has merely wasted time through bilateral discussions in an attempt to get its unilateral aims completed away from heavy international scrutiny .

India built Farakka at a heavy cost to flush out the silted port of Calcutta, why cannot Bangladesh build a Ganges Barrage system to divert water from the ample supplies of the Brahmaputra. India sees Bangladesh as content to draw sympathy from an increasingly tense bilateral situation, which could eventually result in it gaining quite large concessions from India. Certainly both nations have been unwilling to accommodate the other’s point of view, and tensions have risen as much from India’s unilateral withdrawals as from Bangladesh’s unilateral approaches to international forum.

India has displayed anger at Bangladesh’s actions in its approaches to Nepal, the UN and various other ‘outsiders’. As a result Bangladesh has been held hostage by India’s actions at Farakka, with Bangladesh being dependent upon India’s water allocations. These are both results from unilateral actions in a water-sharing dispute. India - the more powerful state - has approached relations with its smaller neighbor with an at times inflexible attitude. India’s concerns rest primarily with the wellbeing of its own populace, and it is in a position in which it can gain its aims. Bangladesh on the other hand is between a rock and hard place. It is the smaller of the states, the lower riparian and heavily dependant upon the Ganges flow. It has become increasingly frustrated at bilateral discussions which appear to go no-where, and has resorted to appealing for international involvement and support. It is by no means uncommon for states in Bangladesh’s position to resort to appeals for international intervention and jurisdiction. These international interventions would not be welcomed by India as it would weaken India’s position of power in the dispute. For these reasons unilateral actions within the dispute have been on the whole harmful to the process of mediation and a quick and permanent resolution which will satisfy both sides.

Bilateral: Discussion is always more favourable than unilateral decision making. Bilateral relations in regards to water-sharing will always be better served between two friendly nations, and will always be tougher between two nations with a tense political relation and history. These tensions can be eased or exasperated according to whether the situation could be mutually beneficial or pit each states interest up against each other. There is also the problem of enforcing agreements with the potential that one nation could simply back out if it changed its position.

The Bilateral Process within the Ganges Case-study

Bilateral process is a popular mode of disputes resolution in water conflict. In fact, both nations have largely favored the bilateral approach since the 1971 Treaty of Peace and Friendship provided the basis for the Indo-Bangladesh Joint Rivers Commission (JRC). The dispute has officially remained an Indo-Bangladeshi affair, however there have been developments to involve Nepal (as a member of a riparian agreement, not a third party mediator), as pushed by Bangladesh and Nepal itself . Nepal’s involvement has remained both informal and bilateral . Nepal has not officially been invited to provide an input or become involved in the dispute, and its only formal involvement has been through its own bilateral discussions with India or Bangladesh respectively . The result is that the topic has remained bilateral and not multilateral due to Nepal’s outside and informal-at-best involvement.

Regarding the Indo-Bangladesh bilateral process there can be little doubt there have been productive periods where the governments have worked together and generally worked towards a decision (such as in 1971, 1976, 1984 and 1996). The agreement to put forward suggestions came out of a productive period of relations in the mid-1970s, and resulted in two starkly different suggestions. India’s suggestion was for a Brahmaputra-Ganges link canal, Bangladesh suggested water storage centers in the Nepalese and Indian highlands along the river. Instead of pursuing a common agreement or compromising between the suggestions, India and Bangladesh have both stuck to their original proposals. Periodically there is a move to exchange data or jointly survey suggestions, but these progressive aims are often quickly drowned out by uncompromising attitudes towards the proposals brought out by periods of hostile relations. There are strong domestic concerns, as well as feelings that the other sides are merely holding out to gain a deal which favors them more. India has heavy concerns from its domestic governments in West Bengal, Uttar Pradesh and from the populace of Calcutta. These regions want the water diversions for their own needs and would see any costly concessions to Bangladesh as a betrayal by the central government. Indeed as it has grown as an issue it has developed increased feelings of nationalism, which in turn have made it increasingly difficult for the Indian government to justify to its own people why they should concede anything to Bangladesh. A similar situation exists in Bangladesh where increasingly political passion has developed in response to the water sharing dispute. Political parties increasingly are critical of any government concessions to India which may harm Bangladesh’s interests perhaps ignoring the realities of the situation in an attempt to gain political or nationalistic capital. Even when Bangladesh appealed to the UN for support, there was political criticism from opposition parties who suggested that the action was too late. Bangladesh is in a delicate and weak position in relation to the dispute, and must tread warily to get what it wants. Even water-sharing dispute has partially led to the assassination of late president Mujib Rahman . These are examples of the domestic pressures and considerations that affect all international disputes and that can render bilateral discussions worthless or unworkable. The relationship is further hampered through various actions which are seen over the border as hostile. An example being the claims by India of a mass media propaganda campaign , or claims by Bangladesh that India is sheltering anti-government dissidents . The combination of internal pressure and declining external trust that hampers bilateral discussions is by no means purely a water-sharing phenomenon, but is a characteristic of all inter-state conflicts.

In bilateral resolutions there needs to be a common profit to which both nations work together but the Ganges bilateral situation is a zero-sum situation . Both India and Bangladesh have remained largely inflexible. Bilateral action is futile and unrealistic in the Ganges case-study, as it does not feature the prerequisites of long-term friendly relations and a mutually beneficial situation. The only prospect of a mutually beneficial situation is if the Ganges is augmented, and differing suggestions for the augmentation of the rivers flow has been one of the prime reasons that the dispute has lasted so long, and been so heated. As far as pushing for multilateral intervention Bangladesh is walking a tightrope. It does not want to anger India as this would be highly unproductive; however it also feels compelled to push for international backing as it assumes, most probably appropriate, that it needs assistance to gain concession from India.

The 1996 Agreement

The 1996 Indo-Bangladeshi agreement has been heralded as an important step in Indo-Bangladeshi relations. In a period of good relations the Prime Ministers of the two nations signed a 30 year agreement organizing the division of water supplies, creating a binding agreement and effectively ending the opportunity for India to withdraw unilaterally . It has provided an opportunity for stability within the dispute through a long-term agreement, as opposed to the varied short-term agreements previously utilized. However, there are strong problems with the agreement that have been consistent throughout the whole dispute.

Firstly, there has been little provision for augmenting the river, which both sides see as essential to resolve the problem . This has been left up to the JRC which again has shown it to be ineffective . Secondly, the treaty also features severe data flaws, with the flow allocations being given through estimates of 75% of the average flow, despite the heavy variance from year to year of the river. Thirdly, it has failed to incorporate other topics which are becoming increasingly important in the whole discussions. These topics include such items as flooding, environmental impact, and social mobilization. Finally, the treaty is not permanent, and if a dispute was to occur who would stop India from reverting back to unilateral withdrawals. The 1996 agreement is another bilateral treaty which has failed to provide the permanent solution that the dispute requires. There has been no permanent plan for augmentation, distribution and enforcement of the agreement. Indeed although it is groundbreaking in the dispute due to its length, it remains little more than a bilateral patchwork agreement which may end up being overturned or ignored once the current good relations become less bright.

Multilateral: Multilateral resolution is not the most common methods, but as the ideal way to reach a permanent, fair and effective agreement through its greater levels of participation and tendency for more permanent and effective agreements. The multilateral process can range from a third-party mediator to organise talks between states, to the dispute being put through an international forum and being bound by international jurisdiction.

The Multilateral Process within the Ganges Case-study

Throughout the Ganges dispute there has never been a high level of international involvement. Initially there was little chance of international involvement as India vetoed Pakistan’s 1960s attempts to go to the UN, ICJ or the International Bank for Reconstruction and Development . India has difficulty with multilateral processes because of the perceived loss of sovereignty over decision making. India did not want to involve these multilateral institutions (perhaps fearing more concessions such as those over the Indus dispute) , and the international society was not going to force it. Nor did India favor regional level discussions. Bilaterally hegemonic India could dominate - yet in a discussion forum it could be out voted. A solution to the multilateral dilemma was needed, India either had to accept international intervention, or international intervention had to be willing to force itself into the issue. Gradually there have been developments towards both changes, with India starting to accept that outside parties can become involved, while outsiders are starting to pry into the debate more and more. Reasons for thishave ranged from increased international focus drawn by the devastating floods in Bangladesh, to the increased pressure being put on India by varied lobbyists including governments, environmental activists, and humanitarian groups .

A further multilateral process would be a regional commission or forum which could be used to air dispute grievances and suggestions. The formation of SAARC has potentially created such a regional forum and increasing promotion of SAARC as a regional mediator . The use of SAARC would ensure India did not lose face, and could help establish a more general regional solution to what is basically a regional river undergoing bilateral processes. A regional agreement is an attractive option to many parties and could be in a similar mould of general consensus as the Rhine, Danube or Mekong agreements .

As a result there is increased international pressure pushing for a permanent resolution of the problem. In the Rio Conference issued calls for discussions into how to overcome the increasing environmental problems threatening the Ganges . The UN has relented to India’s claims that it is a bilateral issue, and many of the forums to which Bangladesh has appealed have only released statements claiming that they hope India and Bangladesh work hard towards a resolution. Despite this it is seen as positive that at least they are being informed, and are showing interest through the appearance of the Ganges dispute on the agendas of these forums and institutions. Such involvement is increasing and can help lead to process of settlement by fostering further discussions and involvement.

All of this is leading to an increased importance being placed on international water law, such as the Helsinki Rules or the recent Non-Navigation Water-Uses Treaty. The Ganges is an international river and there are increasing calls to make is more susceptible to international laws. However, who is going to enforce these international laws? International law has been set up to guide debate, but the Ganges example has raised the important issue of what happens when one side simply dismisses or ignores the laws (such as India’s denouncing of the 1921 Barcelona Convention) . The dispute has remained, so far, generally free of permanent and highly influential multilateral involvement - with no third party mediator, regional consensus or global decree being issued. Is this a possible reason for there being no permanent agreement, as a permanent agreement would require both states to agree and a third party to enforce the provisions of such an agreement?

Scope of the UN convention 1997

The Convention has made it mandatory on the part of all international watercourse States in article 8 . It is not open to any co-riparian country of an international river to stand off and unilaterally alter the international water regime of the drainage basin in question. If an international watercourse State intends to undertake measures on the watercourse, it is obliged under article 12 of the Convention . The thrust of all these provisions in the Convention is that unilateral action by any watercourse State that affects the condition of an international watercourse is not permissible. India has done nothing so far to notify Bangladesh under article 12 of its intention to her river-linking scheme. It may be that she has second thoughts about the scheme, which is not economically feasible, even though Indian government leaders at the highest level have iterating and reiterating Indian intention to implement the river-linking project. Since she has been taking a public position of her intention to implement it without fulfilling her obligation of notifying Bangladesh under article 16, Bangladesh is able to request her under article 18 to act under article 12 setting forth Bangladesh grounds on significant harms that may be caused to Bangladesh by the scheme. India cannot undertake implementation of any scheme or project that may have significant adverse effect on Bangladesh without agreement between the two States. The issue is not significant adverse effect any more. It is the devastating impact on Bangladesh. Article 19 makes it mandatory for all watercourse States to protect, individually and jointly, and preserve ecosystems of international watercourses. This is a wholesome provision so direly needed for the protection and preservation of forests, fisheries and animal and plant species. The Convention confers on all international watercourse States the obligation under article 20. On top of all, the Convention requires all States to enter into consultations at the request of any one of them with a view to creating joint management mechanism for the international watercourse.

Devastations caused by Farakka Barrage are too well known. The barrage was built unilaterally by India without any agreement with the affected Watercourse State. Indian perception probably was that she ran a risk of war over the Indus Basin water but not so over the Ganges water. The chemistry of power politics in the country might have contributed to that understanding. She built the barrage and started withdrawing Ganges water, denying due water to Bangladesh and causing enormous harms. Bangladesh has just emerged as an independent State from a bloody war. She was in a desperate situation. It was a threat then to agricultures, fisheries, forests and other ecosystems. It is now a clear case of enormous harms to agriculture, fisheries, forestry and human habitations. The apprehended desertification in the west of Bangladesh is under way. Fertilization of land by silt from moderate floods has diminished alarmingly, open fisheries have become nearly non-existent, Sunderban forest is afflicted with unstoppable blight of mangrove trees which clean the water from mud and polluted chemicals. The list of afflictions can go on. These have all been caused by intransigent unilateral actions by India in altering the international water regime in the Ganges, although an agreement apportioning water at Farakka not covering the entire watercourse was concluded to great disadvantage of Bangladesh. The trick is to present a fait accomplice and force Bangladesh to accept a trickle. She is doing the same with Brahmaputra, its tributaries and other smaller rivers in eastern India, albeit in smaller and inconspicuous way. The irony of the situation is that India is withdrawing water on both sides of Bangladesh, upstream of the rivers in dry season causing immense harms to Bangladesh and opening the floodgates of stored water in wet season, causing unbearable calamitous floods. She has been preventing moderate floods by storing water and causing furious floods at other times during the wet season by opening the floodgates toward Bangladesh, although she cannot do it under international law and , let alone good neighborly behavior. The best course open to both States is nevertheless to co-operate with each other under the UN Convention and enter into agreement covering the whole of GBM Basin. It is open to Bangladesh under article 20, 24 & 25, to initiate action for establishing a joint mechanism for management and to ensure resolution of problems of unilateral action by India. This is done by numerous other Watercourse States in the world for their mutual benefits.

Settlement of disputes under UN convention:

Under the convention the usual procedure of negotiation, mediation by a third party and arbitration or submission of the dispute to the ICJ has been prescribed. In the second event, an impartial fact-finding commission with one nominated member by each party and a Chairman selected by both members shall constitute the Fact-Finding Commission and take up the settlement of the dispute. When nominated members fail to select a Chairman, the Secretary General of the United Nations has been empowered to appoint the Chairman, who should not be the national of either party to the dispute. The Convention not only elaborates provisions, the peaceful settlement of disputes has been laid down in clearest of terms and in a precise manner.

The Commission shall submit its report to the parties concerned setting forth its findings with reasons and its recommendations for equitable resolution of the dispute. The parties concerned will then consider these recommendations in good faith obviously for implementation. The recommendations of the Commission have after all come about under the authority of the United Nations, which has adopted this particular piece of international law on the non-navigational uses of the international watercourse, and that too by an overwhelming majority of Member States of the UN. Beside, any party to the dispute is free to take the dispute to the International Court of Justice. The judgment of the International Court of Justice is enforceable under the authority of the United Nations.

Conclusions

The threats posed by competition for water are real enough - but for every threat there is an opportunity. Cooperation tends to attract less news than violent conflict. Without regional cooperation between the co-riparian nations, any equitable and reasonable inter-basin watershed planning is impossible. The people of Bangladesh, Bhutan, India, and Nepal living in the Ganges-Brahmaputra watershed share common history, heritage, and friendship that go back to the time immemorial. India, as the largest country in the watershed, has the responsibility to protect the interests of her own people and the environment, as well as the interests of all her neighbors. The government of India needs to take initiatives to develop an integrated water management plan based on the principles of equity and respect of her neighbors, which in turn will strengthen the regional stability, security, peace, and prosperity in the Indo-Bangladesh subcontinent.

I believe that there are four broad rules can be the possible solution of this problem:

First, governments have to stop treating water as an infinitely available resource to be exploited without reference to ecological sustainability. Yes, water is scarce in many countries. But the scarcity is the product of poor economic policies. Improving the efficiency of water use and encouraging conservation through pricing and more efficient technologies in agriculture and industry would help reduce scarcity. Some countries also have the option of conserving local resources by importing the "virtual water" embedded in imported agricultural produce.

Second, countries must avoid unilateralism. Any major upstream alteration to a river system, or increase in use of shared groundwater, should be negotiated, and not imposed.

Third, governments should look beyond national borders to basin-wide cooperation. Building strong river-basin institutions could provide a framework for identifying and exploiting opportunities for cooperation.

Aid donors could do far more in this area. At present, transboundary cooperation receives about $350 million a year in aid. This is a small investment in an area that has the potential to generate high returns. The European Union has a crucial role to play because of its experience in building institutions for managing the great European rivers, such as the Danube and the Rhine.

Fourth, political leaders need to get involved. Too often, dialogue on transboundary water management is dominated by technical experts. Absence of political leadership tends to limit the scope for far-reaching cooperation.

The most obvious reason for greater political and financial investment in transboundary water cooperation is spelled out in an unlikely source. "By means of water," says the Koran, "we give life to everything." As a single human community sharing a single planet we need to look beyond our national borders to work out ways of sustaining the ecological systems on which human progress depends. By means of water, perhaps we can display a capacity for resolving problems and sustaining through cooperation.

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