Relevance of UN Convention on International Watercourses 1997

Prime Minister Sheikh Hasina held a meeting with high officials of the water ministry on May 11. She said that Teesta water sharing agreement was finalised but it could not be signed due to opposition from Mamata Banarjee, the chief minister of Paschimbanga. It is likely that the matter will be pursued with the new government in India. However, the contents of the agreement that was to be signed in September 2011 remain a mystery. Mamata Banarjee termed it as `eyewash' and declined to agree. Since then, several versions of the agreement were discussed in the media, but none could be confirmed.
Our concern is that we are getting no released water from the Gazaldoba Barrage during winter since 2011; only the regenerated flow from the 70 km downstream riverbed is arriving towards the Teesta Barrage. Teesta is an international river so, as per UN Convention on International Watercourse 1997, some norms have to be followed by the basin states in utilising the resources.
The UN convention on Non-navigational uses of International Watercourses was passed in the UN General Assembly, on May 21 1997, with 103 votes in favour and 3 votes against.  Bangladesh was in favour, Pakistan and India abstained, China, Turkey and Burundi opposed. The convention was open for ratification, acceptance, approval or accession by its member states. It needed ratification by 35 members to become international law.  Vietnam was the 35th state to accede, on May 19, 2014, and the convention shall enter into force on the ninetieth day after the deposit of such instrument of ratification, acceptance, approval or accession, with the Secretary General of the UN. Bangladesh has not yet deposited this instrument. Here, we shall try to figure out the pertinent issues of Teesta waters which have relevance to the UN Convention on International Watercourses 1997.
Article 2 of the Convention states: “(a) 'Watercourse' means 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; (b) 'International watercourse' means a watercourse, parts of which are situated in different States...” Teesta being an International watercourse is listed among the 54 common rivers to both India and Bangladesh. It has a basin comprising of surface and groundwater systems with an area of about 30,000 sq km, out of which 10,000 sq km are in India and 20,000 sq km in Bangladesh. The groundwater of Barind area falls under this basin (Teesta Fan) and is recharged by Teesta water on an annual basis.   
Article 5 of the Convention states: “(1) Watercourse States shall in their respective territories utilise 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 utilisation thereof and benefits there-from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.” This convention allows watercourse states to utilise their waters in an equitable and reasonable manner, but says in Article 7: “(1) Watercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.” This article establishes right of the people depending on historical flow.
India has constructed several dams and barrages on the tributaries of the Ganges and Brahmaputra rivers and many are under construction. These dams are holding back the river water and the barrages are diverting the historical flow of the rivers, causing significant harm to the people of Bangladesh and its economy. In this respect Article 7 further says: “(2) Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of Articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.”
Bangladesh has the right to ask India to pay compensation for the significant harm caused to its western region and its estuaries by the Farakka Barrage. Teesta dams in Sikkim are adding to this. Reduction of winter flow has reduced crop production, caused fish loss in the rivers, increased irrigation cost, and affected hilsa and brackish water prawn breeding. The food chain of human beings is being damage, and habitat of many ground and aquatic animals are being lost. This loss needs to be quantified in terms of money and should be on the table for negotiation.  The Indian government always says “no harm shall be done to Bangladesh,” but harm is being done.
India is not only building dams on the common rivers with Bangladesh, it also wants to implement the River Interlink Project which will transfer a huge quantity of water from its eastern region to western and southern regions. This project is against the natural flow and shall have catastrophic effects on the Bengal basin. Article 11 of the convention says: “Watercourse States shall exchange information and consult each other and, if necessary, negotiate on the possible effects of planned measures on the condition of an international watercourse.” We have a Joint Rivers Commission for this purpose but it is not effective.
People living in the basin and dependant on a river for thousands of years have historical right on its flow. But governments sometimes intervene in the river flow in the name of development or to give benefit to others, causing loss to the people with historical rights on the river flow. Article 12 of the convention says: “Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.”
Bangladesh will have a tough time with India in dealing with the waters of our common rivers. The UN convention on Non-navigational uses of International Watercourses of 1997 establishes historical right on the river flow of the people of the basin states, so it is very relevant to us.

The writer is Chairman, Institute of Water & Environment.   
E-mail: minamul@gmail.com