Some international norms

It is not unusual for a lower riparian country to have problems with the upper riparian country over the use of water of an international river. Such problems in varying degrees exist in many parts of the world. There is no alternative to sweet river water for agriculture, irrigation, drinking, protection of nature and environment, besides on-shore navigation. It explains why many rules, customs, usages, conventions and norms of international law have grown over the years to provide for peaceful use of river water by the riparian states. It is indispensable to abide by these rules. Otherwise, interests of the riparian states, especially those of the lower riparian, would suffer.

In the fifties, when India started constructing the Farakka barrage to divert Ganges water to Hoogly River to facilitate navigability of Calcutta port, we could apprehend its disastrous consequences for us in the lower riparian country. However, while the then Pakistan regime successfully reached an agreement with India in 1960 to make sufficient Indus water available for agriculture and irrigation in West Pakistan, the Ganges water issue remained unresolved in the then East Pakistan. Consequently, newly independent Bangladesh faced harsh Farakka reality in 1974. After nation-wide people's movement, diplomatic initiatives, call by the United Nations, discussions with India, signing of a number of short-term agreements and ultimately the Thirty-Year Treaty of1996, we could to some extent resolve the problem of water sharing with our neighbour in the upstream. However, water available during dry season by such agreements or treaties is no alternative to water available from the natural flow of rivers. We are apprehending similar water sharing problems in Teesta and Barak River. However, the main problem today, which is already set to pose a major catastrophic threat to us, is India's projected plan to divert the flows of the Ganges and Brahmaputra to North and West Indian regions by multiple inter-linking of river canals.

The problems of the use of water of international rivers ought to be resolved under international river law. In the last two hundred years, prominent international jurists all have held the opinion that water of an international river ought not to be used by a state in a way seriously detrimental to the interests of other riparian states, particularly that of the lower riparian. Any problem or dispute amongst the riparian states must be resolved by discussions based on exchange of necessary information amongst them. Reflecting this universally recognised doctrine, many international declarations, resolutions, conventions and principles have been adopted over the years which rightly indicate the present position of international law on the issue.

Some of the notable international instruments on the issue are: (a) Helsinki Rules adopted in the Conference of International Law Association in 1966, which unequivocally affirm that every riparian state has a right to logical and equitable share of water of any international river; (b) the 1973 UN General Assembly Resolution (UN Doc. A /8730. 1973), under which a state is prevented from doing any work which may cause substantial damage to any region beyond its jurisdiction; (c) a similar such provision enshrined in Article 30 of the UN Convention on the Economic Rights and Duties of the States (UN. Doc. A/RES/3281/XXIX, 1974); (d) 1972 Stockholm Declaration adopted in the UN Human Environment Conference, emphasising that activities in the territory of one state must not endanger the environment of other states; (e) 1997 UN Convention on International Water Courses providing for prevention of any act in the territory of any state causing damages to other riparian states and the need for collaboration and exchange of information amongst the basin states to resolve any problem or dispute amongst them by discussions.

Recognising the norms of international river law, many bilateral treaties have also been concluded, of which significant are India-Nepal Kosi River Treaty (1954), Gandok Irrigation and Hydraulic Power Treaty (1959); and the above mentioned India-Pakistan Indus water Treaty (1960). United States have also bilateral treaties with Canada and Mexico over the use of water of river Colorado and Rio Grand respectively.

For better administration and management of international river basin with equitable water sharing and proper protection of environment in view, many joint river commissions have been established in many parts of the world, which are working successfully, e.g. Mekong River Commission (Kampochia, Laos, Thailand and Vietnam); Convention and Protection of the Rhine (Germany, France, Luxemburg, the Netherlands and Switzerland); Nile Basin Initiative (Egypt, Sudan, Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, Congo and Eretria); Senegal River Basin Water and Environmental Management Project (Guinea, Mali, Mauritania and Senegal).

Last May, Indian Water Resources Minister Uma Bharati stated that India would start working on her planned river linking project to divert the flows of the Ganges and Brahmaputra to feed some regions of North and West India without further delay. It is understood the project was for many years at study and conceptual stage. Previously, Bangladesh more than once urged India to formally discuss the matter at Joint Rivers Commission. Every time India was reluctant to discuss the issue on the plea that the project was only at conceptual stage. Now the scenario has changed. Therefore, a meeting of the Bangladesh-India Joint Rivers Commission ought to be convened without delay to discuss the issue.

Ganges and Brahmaputra are two major source rivers for most of the rivers and tributaries in Bangladesh. Impact of massive diversion of water flows of these two key rivers at the upstream would be disastrous for the whole of Bangladesh. In fact, diversion of the courses of two international rivers of such a grandiose scale is unheard of. It would create not only water problem for the lower riparian state, but would lead to serious environmental hazards for the entire region, including India herself. This explains why many water and environment experts in India, including prominent hydrologist Himanshu Thakkar, are opposing the river interlinking project. They argue India relies on underground water for some two-thirds of her irrigation and for more than three-quarters of her drinking water. Wells and pumps management and operation can be improved, and collection and storage of rain water increased to reduce dependence on river water. Massive diversion of river water by link canals is risky and may lead to adverse consequences, all of which cannot be contemplated right now.

Very recently, the Chief Minister of Bihar Nitish Kumar blamed the Farakka barrage for increasing frequency of floods in his state. He alleged that interference with the natural flow of the Ganges water by Farakka led to increase of silt-deposits raising the level of river-bed and reducing the water containing power of the river, which is the main reason for frequent floods in Bihar. The Chief Minister also urged the central government to look for an alternative to resolve the state's flood problem.

The 1996 Ganges Water Treaty and the 2011 Framework Agreement for Development between India and Bangladesh signed by Prime Minister Sheikh Hasina and Manmohan Singh stipulate that any water problem between the two countries would be resolved amicably by discussions. Inter-linking of the river issue needs to be discussed on an emergency basis. People's awareness and support on the issue is necessary. Popular awareness and support strengthens diplomatic and negotiating position of a state-party for successful dispute resolution.

The writer is a member of the Law Commission.