RESOLUTION OF WATER DISPUTE BETWEEN INDIA AND BANGLADESH: DOES INTERNATIONAL LAW WORK?
ZAGLUL HAIDER
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••I Canada Abstract The findings of this study reveal that the 'reasonable and equitable utilization' of international watercourse is the governing principle of international water law. It has been recognized as an established principle of customary international law in all important codifications of this area. It recognizes the principle of limited sovereignty, shared natural resources, equitable utilization, no significant harm, reasonableness, optimum utilization, sustainable development, notification, data sharing and finally peaceful settlement. I argue in this study that in the light of international law India's unilateral construction of structures at the upstream of the international rivers and its attempt to interlink the common international rivers, having disastrous consequences for Bangladesh, are illegal. A number of factors, such as intrinsic weakness of the international law to enforce it on the strong states like India, Indian realist policy (power politics), economic and military powers to carry out this policy and its strategic partnership with the US (which gave it new endorsement to power politics) are responsible for its non-compliance to international law regarding the utilization of common water and environmental resources with Bangladesh. In other words, India's lack of respect for international law has derived from its hegemony.
I further argue that only a third party settlement is the best strategy to resolve the disputes, because during the last thirty-seven years (1972-2009) bilateralism proved self defeating for Bangladesh. India's uninterrupted violation of the bilateral treaty regarding the apportionment of the Ganges water and construction of the Tipaimukh hydraulic dam turns bilateralism into unilateralism. In the name of bilateralism India breaches the existing treaty unilaterally. As a consequence, bilateralism with India acts as a zero-sum game for Bangladesh. It fails to create a 'win- win' situation for both of the countries. In effect, bilateralism has become a principal obstacle for the settlement of the Indo- Bangladesh water and environmental disputes. In the context of the failure of bilateralism, a third party settlement may be considered as the best alternative strategy for Bangladesh to make the dispute settlement process a win-win situation. A third party settlement or a multilateral agreement is not only the most common method, but also it is seen by many as an ideal method for a just and effective settlement.
The Third party settlement is a democratic process and works well among the democratic states. The third party mediation is chosen here as an effective method on the grounds that first, it is a compelling international law and secondly, South Asia experienced third party settlements on several occasions and the results were very effective and fruitful. The Indus water dispute between India and Pakistan was successfully resolved with an accord in 1960 by the active mediation of the World Bank. Again the Tashkent Agreement brokered by the then USSR, successfully concluded the Indo-Pakistan war in 1965 over the Kashmir issue. The settlement of the India -Pakistan land boundary disputes by the Rann of Kutch Arbitration of 1965 is another important example of a third party settlement in South Asia. Finally, I suggest that the United Nations, or the World Bank or global super power the US (acceptable to both India and Bangladesh) can be a suitable third party mediator.
IV Dedicated to my affectionate sister Jasmine Who left this world when she was very young. Acknowledgements
I am very grateful to my supervisor Professor Benjamin J. Richardson for his keen interest in my research and his continuous support with critical and insightful comments on my drafts. I am also thankful to my committee member Professor Ikechi Mgbeoji for his continuous support and invaluable comments and suggestions on my thesis. Apart from this, I acknowledge the contributions of the staff of the Osgoode Hall Law Library and Scott Library, York University, Toronto, Canada for their unfailing support. I am thankful to Osgoode Hall Law School for awarding me the prestigious Harley D. Hallett Graduate Scholarship and also for offering me a Graduate Research Assistantship. I owe a great deal to my wife Farah Deeba Chowdhury for her helpful suggestions and my three daughters Mehran, Lubaba and Nashat for extending their cooperation to me to complete this thesis. Finally, I will not hesitate to accept responsibilities for the flaws and errors that still remain.
VI Table of Contents Abstract IV
Dedication V
Acknowledgements VI
Table of Contents VII
Chapter 1: Introduction 1
Objectives of the Study 3
Review of Literature 4
Transboundary Water and Environmental Law 5
Transboundary Water Dispute: The Case of South Asia 20
Dispute Resolution Process: The Peaceful Settlement 26
Provisional Arguments 31
Methodology 33
Structure of the Study 33
Significance of the Study 35
Chapter 2: Principles of International Law for the Distribution of Transboundary
Water Resources 36
Introduction 36
Theories of Allocation of the Transboundary Water Resources for the Co-riparian States
39
VII Absolute Territorial Sovereignty 39
Absolute Territorial Integrity 44
Limited Territorial Sovereignty/Equitable Utilization theory 47
Common Management /Community of Interest 54
Principles for Non-navigational Uses of water 57
The Helsinki Rules 57
The United Nations Watercourse Convention 60
The Berlin Rules 65
Conclusion 69
Chapter 3: Reflection on the Indo-Bangladesh Water and Environmental Disputes in the Light of International Law 75
Introduction 75
The Farakka Barrage Dispute 77
The 1996 Indo-Bangladesh Water Accord 84
Principles of the Accord of 1996 85
Evaluation of the Two Treaties 86
Implementation of the Water Accord 89
VIM The Indus Waters Treaty 1960 and the 1996 Ganges Water Sharing Treaty: A Brief
Comparison 94
Impact of the Farakka Barrage on Bangladesh 100
Interlinking of Rivers (ILR) Project and Its Impact 109
Impact of the ILR Project on Bangladesh 110
The Tipaimukh Hydraulic Dam (THD) and Its Impact on Bangladesh
114
The Principles of International Law Violated by India 117
Conclusion 129
Chapter 4: Underlying Factors for the Indian Negative Attitude to International Law 132
Introduction 132
Factors Responsible for Indian Violation of International Law 134
Rising demand for water in India 13 8
Indian Superior National Power 146
Indian Power Politics toward South Asian Countries 148
Conclusion 153
Chapter 5: Conclusion: The Best Strategy for Bangladesh 156
Third Party Settlement and its Methods 165
Good Offices of a Neutral Third Party: The Best Strategy for Bangladesh 168
IX List of Figures (Appendix 1)
Figure 1: The Ganges and Brahmaputra Rivers Figure 2: The Farakkah Barrage Figure 3: The Luv-kush Barrage in Kanpur Figure 4: Impact of Farakka Barrage on Bangladesh Figure 5: The Interlinking Rivers (ILR) Project Figure 6: Bangladesh in South Asia Figure 7: The Site of the Indian Proposed Tipaimukh Dam Figure 8: The Tipaimukh Dam Figure 9: Impact of the Cyclone Sidr on Bangladesh Figure 10: Impact of the Cyclone Aila on Bangladesh
List of Tables (Appendix 2 )
Table 1: The Ganges-Brahmaputra-Meghna Basin
Table 2: Distribution of the Ganges Basin Table 3: Different Phases of Negotiations
Table 4: Bangladesh-India Water Sharing Agreement 1975
Table 5: Bangladesh-India Water Sharing According to the Agreement of 1977 Table 6: Formula for Sharing the Waters of the Ganges under the 1996 Treaty Table 7: Sharing of Indo- Bangladesh Ganges Water at Farakka under the 1996 Treaty
X Table 8: A Comparison between the Shared Value and the Released Value of Flow at
Farakkainl997and 1998.
Table 9: Indo-Bangladesh Ganges Water Sharing in, 2009
Table 10: Extent of Dependence of Bangladesh and India on the Ganges
Table 11: Consolidated Financial Losses Due to Farakka
Table 12: India's Trade Dominance in South Asia
Table 13: Indian Dominance in the Military Spending of South Asia
Bibliography
XI Chapter 1
Introduction
The Ganges water dispute is a predominant source of conflict with India since the independence of Bangladesh. Regarding its water resources, Bangladesh is at a serious disadvantageous position. The origins of most of the rivers of Bangladesh are outside the country. India, the upper riparian country is constructing barrages/dams/reservoirs on almost all the major rivers and regulating the flow of water. The most important Farakka barrage has been erected over the international river, the Ganges to divert its water to
Bhagarathi-Hooghly River in order to keep the Indian Kolkata Port navigable and free from silts. Bangladesh is extremely dependent on the Ganges River, for agriculture, industrial activity, domestic use, navigation, fisheries, and forestry. It also prevents the inland intrusion of the saline water from the Bay of Bengal.2
The Farakka barrage became the 'Kashmir' of Bangladesh's grievances with
India.3 It has severely affected 37% of the country's total area and 33% of the population of Bangladesh who are dependent on the Ganges basin.4 In short, it has posed a serious threat to the ecology, economy and environment of Bangladesh. However, a short term agreement on the apportionment of the Ganges water was signed on April 18, 1975
1 N Islam Nazem & Muhammad Humayun Kabir, "Indo-Bangladesh Common Rivers and Water Diplomacy" (1991) 12 BUSS Journal 263 at 263-292 2 M Monirul Qader Mirza, "Hydrological Changes in Bangladesh" in M Momrul Qader Mirza ed , The Ganges Water Diversion Environmental Effects and Implications (London Kluwer Academic Publishers, 2004) 13 at 13 3 Gowher Rizvi, "The Role of the Small States in South Asian Complex," in Barry Buzan & Gowher Rizvi eds , South Asian Security and the Great Powers (London Mcrmllan, 1986) 127 at 135 4 Ashok Swam, "Conflicts over Water The Ganges water Dispute" (1993) 24 Security Dialogue 429 at 432-433
1 between Bangladesh and India which expired on May 31, 1975.5 In November 1977, two countries signed an agreement for a period of five years on the apportionment of the
Ganges water at Farakka and augmentation of its flow.6 This agreement expired in
November 1982. From 1982-88 Bangladesh had no agreement with India but had
Memorandum of Understandings (MOU).7From 1988-1996 there was no MOU even.
Bangladesh and India signed a 30 year long Ganges Water Sharing Accord on December
12, 1996. However, following the agreement records of flow and other events, indicate that it is not being implemented properly.9
In addition to this Farakka barrage, India is contemplating to implement an
Interlinking of Rivers (ILR) project.10 India prepared a mega plan in May 2000 to interlink 37 rivers to take waters from one basin of a river to another and thus solving the water crisis in the draught affected regions. This will seriously threaten the very existence of Bangladesh, because 80% of its annual fresh water supply comes as a trans-boundary inflow through 54 common rivers.
Apart from this, the Government of India has initiatedthe process of construction of the Tipaimukh Hydraulic Dam (THD) located 500 m. downstream from the confluence
5 B.M. Abbas A.T, The Ganges Water Dispute (Dhaka: The University Press Limited 1982) at 40. 6 Ibid, at 99. 7 Zaglul Haider, "Crises of Regional Co-operation in South Asia" (2001) 32 Security Dialogue 423 at 425 8 Daily Ittefaq, [Bangladesh] (13 December 1996). 9 Amzad Hossan Khan , "Ganges Water Treaty : Analysis of First Year Implementation" The Daily Star [Bangladesh] ( 28 May, 1997); See Water resource expert Ainun Nishat's interview, Dainik Sangbad [Bangladesh], ( 5 April, 1997). 10 Shamim Ahsan, "India's Giant River-Link Project: Will Bangladesh Dry Up?" Star Weekend Magazine 1: 126 (10, October 2003), online :
2 of the Barak River The mam purpose of this dam is the generation of 1,500 MW hydro electric powers n Barak is an international river and its tributaries are the Surma and
Kushiara overs of Bangladesh The Surma River feeds the mighty Meghna River which flows through Bangladesh Millions of people are dependent on hundreds of water bodies fed by the Barak River in the North-East region of Bangladesh for fishing and agnculture This will have the worst effects on the livelihood of the North-East region in
Bangladesh
Objectives of the Study:
Can international law work to resolve the Indo-Bangladesh water dispute? If not, why? And what is the best strategy for Bangladesh to resolve the water dispute with
India? This study will primanly investigate these questions To this end, following research questions will be addressed here
(a) What are the principles of international law for using the water of
common international rivers and preventing environmental damages?
(b) Why is India not respecting international law?
(c) What is the best option for Bangladesh?
In this study, by international law I mean international water law and international environmental law The central argument of my thesis is that India's unilateral construction of the structures at the upstream of the international rivers and its attempt to
11 Nadim Jahangir, "The Tipaimukh Dam Controversy" Forum 3 2(7 July 2009), online http //www thedailystar net/forum/2009/july/tipaimukh htm>
3 interlink the common international rivers, having disastrous consequences for
Bangladesh, are illegal. Indian hegemony over Bangladesh and the inherent weakness of international law to apply on the strong state India are mainly responsible for Indian non compliance with international law. I further argue that the third party settlement is the best strategy for Bangladesh, because during the last thirty-seven years (1972-2009), bilateralism proved dysfunctional for Bangladesh.
Review of Literature:
In this study I will review three categories of literature. The first category will include the literature regarding international water law and environmental law for sharing the water of common international rivers and the protection of the environment. The second category will include literature dealing with international water disputes in general and South Asian water and environmental disputes in particular. The third category of literature will cover dispute resolution. Literature will be reviewed from both legal and social science perspectives. The first group of literature will address the legal questions.
What are the principles of international law for the use of transboundary water resources and the protection of the environment? This research question will be addressed by the first group of literature. Why is India not complying with international law? This question will be addressed by the second group of literature. The third group of literature deals with the dispute resolution. What is the best option for Bangladesh to settle the dispute?
This question will be addressed by the third group of literature.
4 Transboundary Water and Environmental Law
Among the first category, Bourne12 unfolds that a riparian state has the legal right to utilize the water of the international river in its territory, if this causes no injury or only a minor injury to co-riparian states. Bourne argues, "... the basic premise of the law on this subject is the notion of qualified territorial sovereignty, that is, sovereignty subject to
1 ^ a prohibition against causing damage in the territory of co-riparian." This view reflected in the 1961 Salzburg Resolution of the Institute of International Law, the 1933
Declaration of Montevideo, the 1957 Buenos Aires Resolution, the 1958 New York
Resolution and strongly supported by the Lake Lanoux Case between France and Spain in
1957. Bourne also recognizes that along with high economic and social stakes, political factors inevitably play the decisive role for the settlement of international river disputes.
My thesis is also based on this premise that political factors play a crucial role in the settlement of water disputes between India and Bangladesh and else where. This article will provide legal basis to substantiate my argument that international law supports the use of the international river by a riparian state in its territory, only if this does not cause any significant harm to co-riparian state. It will further help me to support my argument that political factor plays a significant role in the process of dispute resolution.
12 C B Bourne, "The Right to Utilize the Waters of International Rivers" (1965) 3 Canadian Yr I L 187 at 188 13 Ibid at 189 14 Significant harm means transboundary environmental adverse effect or impact See, Owen Mclntyre, Environmental Protection of International Watercourses under International Law, (Aldershot Ashgate Publishing limited 2007) at 96. McCaffrey suggests that- significant harm is to trigger discussion over (a) whether and to what extent harm has occurred ,and if so( b)whether the source state exercise due diligence to prevent the harm, and (c)whether it is reasonable for the complaining state to insist on being free from the harm " See, Stephen C. McCaffrey, The Law of International Watercourses (New York. Oxford University Press 2007) at 445
5 Following Bourne, in my thesis I will argue that the Indian hegemony enabled her to
violate international law regarding Indo-Bangladesh water and environmental disputes.
Zodrow 15 introduces the international aspects of water law reforms. Her work
gives an overview of international hard and soft fresh water law instruments and their
applicability to water law reforms. She examines the United Nation's Water Course
Convention (1997) and the Helsinki Convention and its protocol (2003) as sources of
hard law.16 Besides the hard laws, Zodrow also examines the soft laws created by the
international legal associations, international organizations, international courts and
tribunals.17 She further focuses on the 1966 Helsinki Rules and 2004 Berlin Rules and
concludes that all these soft laws also contributed significantly to the development of
1 Q
international water law for equitable and reasonable utilization of water resources. She
analyzes the evolution of international law for the use and utilization of international
water courses. She does not reflect on non-legal factors such as political, economic and
strategic factors which are responsible for the violation of international water and
environmental law. Despite many limitations of her work it will be very useful for
developing a legal frame work to analyze the Indo-Bangladesh water and environmental
disputes.
15 Irina Zodrow, "International Aspects of Water Law Reforms" in Philippe Cullet et al, eds. Water Law for the Twenty First Century National and International Aspects of Water Law Reform in India" ( New York- Route ledge, 2010) 36 at 36-57. 16 Ibid at 40. v Ibid, at.40-41 n Ibid, at.41.
6 Gualtieri19analyzes the international human rights aspects of water law reforms.
He analyzes Human Rights to water from the international legal contexts. In his work, it is clear that the United Nation's Human Rights Council (HRC) held its first session dedicated to the 'Human Rights to Water' in September 2007. In the report the High
Commissioner for Human Rights declares:
It is now time to consider access to safe drinking water and sanitation as human right, defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and professional uses-drinkmg, personal sanitation, washing of the cloths, food preparations and personal and household hygiene-to sustain life and health 20
By examining the international human rights treaties he finds that the
Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) do not explicitly mention a right to water but they do
implicitly. Indirectly it is linked with the right to life.21 Explicit obligations in
relation to the right to safe drinking water have been increasingly included in
more recent human right treaties, such as those on the rights of the child, the
elimination of discriminations against women, and the rights of persons with
disabilities. The UN Economic Commission for Europe (UNECE) provides that
state parties have the obligation to take appropriate measures to provide access to
drinking water and sanitation and to protect drinking water from pollution. Thus
human right treaties entail both explicit and implicit obligations regarding the
19 Ahx Gowlland Gualtien, "International Human Rights Aspects of Water Law Reforms" in Philip Cullet, et al eds. Water Law for the Twenty First Century National and International aspects of Water Law reform in India" (London . Routledge , 2010) 237 at 237-258. 20 Ibid at 238. 21 Ibid
7 right to water and sanitation Gualtien concludes that the human rights dimension
of water needs to be integrated into a holistic approach to water on an
international level that includes its entire dimension, including the environmental
one 22 I will use this article in my thesis in order to support my arguments that
access to water is a right and the Indian withdrawal of water at the upstream and
deprivation of water to the millions of Bangladeshi people are violations of human
rights
McCaffrey23 examines the rules of international law relating to international watercourses as shared rivers, lakes and aquifers concerning navigational and non- navigational uses He focuses on the theones, rules and disputes concerning navigational and non-navigational uses Among other things, he examines the principal theories of transboundary watercourses and concludes that the theory of limited territorial sovereignty is the prevailing theory of international watercourse rights and obligations
McCaffrey also analyzes the disputes between countries over water In this regard, he conducts case studies in different regions in the world where rivers caused transboundary disputes He analyzes the water dispute between India and Pakistan over the Indus River,
India and Nepal over the Mahakhah River and India and Bangladesh over the Ganges
River and suggests that equitable and reasonable utilization is an obligation for the use of transboundary water resources McCaffrey's work is different from other scholarships on the ground that his analysis is not only based on the general principles of international
21 Ibid at 258-259 23 Stephen C McCaffrey, The Law of International watercourses, 2d ed (Oxford Oxford University Press, 2007) at 1-598 24 Ibid at 111-170
8 law but also on treaty law and case law. His case studies are unique. His work is a pioneer one on the subject and will help to compare and contrast my work with similar cases in other regions of the world.
Subedi25 focuses on the development of international water law. By examining the existing theories, she argues that equitable utilization principle constitutes the cornerstone of the current law on international watercourses. In addition to theories, she examines the chronological development of the international watercourse law. She examines the
Madrid Declaration of 1911, the Salzburg Declaration of 1961, the Helsinki Rules of
1966, the 1997 UN Watercourse Convention and the Berlin Conference of 2004 and comes to the conclusion that the actions of the International Law Institute (ILI) and
International Law Association (ILA) have significantly contributed to the development of international watercourse law. Her works although contribute significantly to establish an acceptable principle for the distribution of the transboundary water resources, it does not provide any legal way out for conflict resolution. My thesis will fill out this gap and will recommend a legal prescription for the resolution of the Indo-Bangladesh water and environmental disputes.
Iyer in a Maverick view has analyzed the interstate conflict and cooperation over the Ganges basin in the light of international law. He argues that the principle of
Surya P. Subedi, "Regulation of Shared Water resources in International Law: The Challenge of Balancing Competing Demands" in Surya P Subedi ed. International Watercourse Law for the 21s' Century (Aldershot: Ashgate Publishing Company, 2005) 7 at 7-18
26 Ramsamy R. Iyer, "A Maverick View" in Surya P. Subedi ed. International Watercourse Law for the 21s' Century (Aldershot: Ashgate Publishing Company, 2005) 47at 47- 61.
9 equitable apportionment for the beneficial uses received international acceptance. He seeks cooperation for the future prosperity of the region. His key argument is:
The GMB region is a resource rich area, but it is home to a large concentration of the world's most poor; the water resources of the immense rivers that flow through the region hold promise of an escape from this paradox; water is m fact the magic key to future prosperity in this region, and the countries of the region must learn quickly to cooperate to bring about that prosperity or remain 27 forever locked m grinding poverty.
For cooperative development, Iyer suggests Mahatma Gandhi's philosophy, "The
World has enough for every one's need but not enough for every one's greed." By greed
Gandhi meant the desire for higher levels of consumption than needed. By 'need' he meant austere. I agree with lyre that for cooperative development of the international watercourse the equitable utilization is the best legal principle. However, he did not mention any thing about the power politics of the strong country over the weak regarding the distribution of the transboundary water resources and the protection of environment.
Here it is worthy to note Morgenthau:
It makes it easy for the strong both to violate the law and to enforce it, and consequently puts the rights of the weak in jeopardy. A great power can violate the rights of a small nation without having to fear effective sanctions on the latter's part.
In my thesis I will deal with this, especially about the best strategy for the weak country to deal with the power politics of the strong one.
11 Ibid, at 57. 28 Ibid, at 60. Hans J. Morgenthau & Kenneth W. Thompson, Politics among Nations The Struggle for Power and Peace (New York: Alfred A Knopf, 1985) at 312.
10 Chimini analyzes the two treaties namely the Indo-Nepal Mahakali agreement
and the Indo-Bangladesh Ganges water agreement signed in 1995 and 1996 respectively.
He examines almost all aspects of the two treaties. Regardless of the merits and demerits
of the treaties, he thinks that the Mahakali and the Ganges treaties represent a step
forward in the water relationships among India, Nepal and Bangladesh. He is opposed to
the imposition of any mandatory third party dispute settlement procedure on a state without its consent.31 It is obvious from the previous experience of the Indo-Bangladesh water treaties that without a third party settlement the interest of the weaker states always
remain undermined and it only protects the dominance of the strong state over the
transboundary water resources. Third party settlement can effectively maintain the
balance between the strong and the weak. In order to remove the disputes existing among the South Asian countries, he argues:
Dialogue should be initiated between three states to resolve problems that arise from time to time The dialogue should be informed by a notion of compromise that allows common interests rather than individual national interest alone is pursued.32
Here it should be remembered that without a third party mediation the dialogue between the strong and the weak states can never be meaningful. Rather it will serve the
exclusive interests of the strong states. His overall analysis is from the Indian perspective which clearly undermines the interest of a weak state like Bangladesh. Although
30 B S Chimni, A Tale of Two Treaties The Ganga and the Mahakali Agreements and the Watercourses Convention" in Surya P. Subedi ed International Watercourse Law for the 21s' Century (Aldershot Ashgate Publishing Company, 2005) at 63-103 31 Ibid 32 Ibid at 103
11 Chimney's arguments reflect India's best interest and they undermine the interests of other riparians', this will still be useful for me in order to refute his arguments.
Upreti 3 analyzes the equitable utilization of Nepalese water resources in the contexts of the Indo-Nepal bilateral relations as well as South Asian regional cooperation.
At the bilateral level he examines the Kosi Project Agreement 1954, the Gandak Project
Agreement 1959 and the Mahakali Agreement 1996. He argues that in the Kosi and
Gandhak projects, Nepal's entitlement to equitable and reasonable use has been explicitly denied. He writes:
In essence she (India) never follows the principle of equitable utilization and the "no harm rule"; rather she has always behaved against the notions of these norms, and also against the existing trend currently adopted even in interstate disputes within India. Several diplomatic initiatives have been made by Nepal and notes have been sent to India; also negotiations were held to wipe out such illegal acts, but no tangible result has so far been achieved.34
Similarly Upreti finds India responsible for the absence of regional cooperation in
South Asia. Indian predominant role in the region in terms of its size, economic and military power, technological status and political stability has made other small neighbors feel vulnerable and suspicious about India. Upreti concludes that national efforts alone are not enough without bilateral and regional involvement for the water resource development of South Asia in general and Nepal in particular. The real impediment is not knowledge, technology or finance but lack of political will of the leaders of the region.35
Trilochan Upreti, "Equitable Utilization of Nepalese Water Resources: Bilateral and Regional Perspectives" in Surya P. Subedi ed. International Watercourse Law for the 21s' Century (Aldershot: Ashgate Publishing Company, 2005) 221 at 221-246. 34 Ibid, at 231. 35 Ibid, at 246
12 Upreti's analysis and argument will be helpful for making a comparative analysis of the
Indo-Bangladesh water dispute with the Indo-Nepalese water dispute.
Salman and Uprety36 focus on the regional water law issues of the South Asian subcontinent. This study reflects on the hydro-politics and legal regime of the international water in the region. The aspects of bilateral relations are covered in this study. The authors then focus on dispute resolution, especially the Indus water treaty between India and Pakistan, the Mahakali treaty between India and Nepal and the Ganges water treaty between India and Bangladesh. In this work they construe that complicated
South Asian political problems have been solved through cooperation or treaties among the states of the region.
The limitation of their work is that they do not analyze why the treaty regimes have settled the Indo-Pakistan and the Indo-Nepal disputes and why the Indo-Bangladesh dispute could not be resolved despite having the Ganges treaty. Indeed, the third party mediation for the Indus Water treaty protected the rights of Pakistan over the Indus water and the provision for arbitration in the Mahakali treaty in case of disputes, guaranteed the rights of a weak state, Nepal over the water resources of the Mahakali River. On the contrary there is no third party mediation and there is no such arbitration provision in case of disputes to protect the interest of weak Bangladesh over strong India in the Ganges treaty. As a consequence, the treaty is not working properly. Moreover, Indian violation
Salman M.A. Salman Kishor Uprety, Conflict and Cooperation on South Asia's International Rivers A Legal Perspective (London: Kluwer Law International, 2002) at 1-399.
13 of the Ganges treaty is further making the treaty ineffective. My thesis will argue in this line.
Tanji and Arcari37 in their work unfold the UN's solid efforts to provide guidance to states in the management of their shared water resources. The core argument of the book is that the UN Watercourses Convention, adopted by the UN General Assembly on
21 May 1997 is a framework instrument that codifies and progressively develops the rules of international law that govern the non-navigational uses of international watercourse.
Their work reflects the following aspects of normative framework offered by the convention: international watercourse is a shared natural resource; co-riparian is to find a mutually agreeable formula for the use, management and the protection of the watercourse concerned; the equitable utilization principle and the no harm rule are part and parcel of the same normative setting; the general principle of cooperation acts as the catalyst for the implementation of equitable utilization and no harm in relation to specific watercourse; vital human needs are considered as the central elements for determining equitable and reasonable use of international watercourse; negotiated dispute resolution with a third party procedure including adjudication and arbitration is recognized.
The authors in their work exclusively stress on the 1997 UN Watercourse
Convention. They do not compare the 1997 convention with the Helsinki Rules or the
Berlin Rules of the ILA or ILL There is no doubt that the ILA and the ILI made significant contributions toward the establishment of an international law for the use of
37 Attila Tanzi & Maunzio Arcan, The United Nations Convention on the Law of International Watercourses A Framework for Sharing (London. Kluwer Law, 2010) at 358.
14 transboundary water and environmental resources. Tanji and Arcari's work is similar to that of Salman and Uprety's work entitled Conflict and Cooperation.... The difference is that Salman and Uprety deal with almost all the legal instruments, while Tanji and Arcari focus only on the 1997 UN Watercourse Convention.
However, this is a very useful piece for building legal and theoretical arguments in my thesis. Particularly I will use the equitable utilization as the legal principle for the use of transboundary water and environmental resources and the third party mediation as the best strategy for Bangladesh to settle the Indo-Bangladesh water and environmental disputes. The 1997 UN Watercourse Convention endorses both of these legal principles.
TO
Regarding the principles and provisions of international law, Mclntyre argues that the principle of equitable utilization is the pre-eminent legal rule applicable to the use and the protection of international watercourse. He primarily focuses on protecting the environment and eco-systems in his work. He suggests that equity is the cornerstone of the modern international water resource law. Although Mclntyre's work is a pioneer one for the establishment of the principles of international watercourses under international law, he does not give any way out as to how to resolve the conflict if any party disagrees to comply with the principles of the transboundary watercourses. Indeed, this happens very often. Normally strong upstream countries always try to control the flow of water in their own interest and they deprive the down stream countries of their equitable share according to the internationally accepted principle of the "equitable utilization." Given
38 Owen Mclntyre, Environmental Protection of International Watercourses under International Law (Alder shot: Ash gate Publishing, 2007) at 1-380.
15 the situation of power imbalance, the strong countries always apply power politics. The powerful countries disregard international law by utilizing their political, economic and military powers and they follow the realist approach for dispute settlement. According to realism, states cannot depend on supranational authority to protect their national interest.
The realists'39 main argument is that, in international relations, there is no eternal friend and there is no eternal enemy, only national interest is eternal.
In the use of transboundary watercourses the powerful countries always use their hegemonic influences over the weak countries. At this point, international law or the method of peaceful settlement becomes a secondary device while the primary method of conflict resolution is power politics. For example, Egypt's dominance over the Nile water and the Indian control over the Ganges water are very important examples of realist approaches in the distribution of the transboundary water resources.40 India has got absolute control over the Ganges water and the lower riparian Bangladesh is the victim of the Indian hegemony.41
India does not want a third party settlement or a multilateral settlement on the ground that it will weaken the Indian hegemony. Therefore, it is evident that only the principles of international law are not simply sufficient mechanisms to resolve the transboundary water disputes that Mclntyre argues for, rather some binding mechanisms are required in order to checkmate the power politics of the strong countries over the
Hans J Morgenthau, Politics among Nations The Struggle for power and peace (New York' Knopf, 1978) at 3-17, Kenneth Waltz, Theory of International Politics (Reading, Mass Addison-Wesley Publishing Co., 1979). 40 Helga Haftendorn, "Water and International Conflict" (2000) 21 Third World Quarterly 51 at 57-58 41 Ibid at 58-59
16 weak states. Although Mclntyre's work is a legal discourse for the protection of international watercourses, there still exists a gap for socio-political, economic and strategic factors responsible for transboundary water and environmental disputes which provide ample opportunities to fill up the gaps. In my thesis I will deal with these factors.
Kaya4 examines the relevant sources of international law in search of a governing principle in the non-navigational sources of international watercourses. To this end, he first briefly defines the concept of non-navigational use and then examines the conceptual framework that has been used to define the international watercourse. To him, non- navigational use means agricultural uses, economic and commercial uses, domestic and social uses. While defining the watercourse he concludes that in order to constitute a
'watercourse', the system of water must normally flow into a common terminus.43 His definitions give us concrete ideas about the key concepts of non-navigational use and watercourse. In addition to the conceptual framework, he examines the existing theories of international water rights and concludes that restricted territorial sovereignty or the principle of equitable utilization is the governing principle of international law.
Although Kaya's work is similar to that of Mclntyre's work, Kaya's contribution is that he provides a solution for the peaceful settlements of disputes. This book will give me legal justification for the third party settlement which I suggest for the settlement of the
Indo-Bangladesh water and environmental disputes.
Ibrahim Kaya, Equitable Utilization The law of the Non-navigational Uses of International Watercourses (Aider shot- Ash gate 200,) at 1-231. 43 Ibid, at 25. 44 Ibid at 88.
17 Caponera's work gives a historical perspective of water law and administration
both at the national and international levels. This book is useful for the origin and
development of legal theory and practice, but it lacks the recent developments which
encourages the scholars for further study. This book provides the connectivity between
the old laws and new laws. It further shows the chronological development of the
transboundary water law required to analyze the cotemporary international law with
historical evidences.
Wibisana suggests three principles for the development of environmental law in
any developing country. These are: 1) the polluter- pays principle, aimed primarily at
recovering the environmental cost, where the polluter should bear any social costs
resulting from its activity.
2) The preventive principle: It implies that every state has an obligation to protect other
states against damages caused by the activities within its jurisdiction. 3) The precautionary principle. This principle implies that threats to environmental damages are
tangible. Hence it requires that preventive measures should be taken to avoid damaging
consequences. The above three articles are essential for the protection and preservation of
environment against transboundary aggressions. In my thesis I will show how India
disregards all three principles and inflicts water and environmental threats on Bangladesh.
Dante A. Caponera, Principles of Water Law and Administration National and International (Netherlands: A. A. Balkema, Rotterdam, 1992) at 1-260. 46 Andn G. Wibisana, "Three principles of Environmental law The Polluter-Pays Principle, the Principle of Prevention, and the Precautionary Principle" in Michael Faure & Nicole Niessen eds , Environmental Law in Development Lesson from the Indonesian Experience (Northampton: Edward Elgar, 2006) at 23.
18 Richardson and Wood argue that the new environmental problems require integrated approaches (environmental and non-environmental concerns) to environmental regulations which include: the use of scientific knowledge for defining, prioritizing, and solving the environmental problems and transformation of environmental protection from
'zero- sum' to a 'win-win' situation. I agree with Richardson and Wood's integrated approach of sustainable development towards a win-win situation. In my thesis I will argue that the application of such an integrated approach through the process of third party settlement can ensure a win-win situation for both India and Bangladesh.
Richardson, Ikechi, and Botchway,48 argue that environmental law will hardly facilitate sustainable development unless good governance is promoted and institutional cooperation is ensured. To them, international cooperation involves international environmental treaties, organizational assistance, and necessary assistance to post- colonial societies to develop sustainability. They further hold the view that regional intergovernmental cooperation can be useful means for the development of environmental law and policy. Following Richardson and Ikechi I will argue in my thesis that intergovernmental cooperation among the riparian countries including Bangladesh, India and Nepal would make the settlement of the Ganges water dispute very amicable, and equitable. At this point India must have to change its present policy of bilateralism.
Through treaty among all riparian countries of the Ganges, the augmentation of the
47 Benjamin J. Richardson & Stepan Wood, "Environmental Law for Sustainability," in Benjamin J. Richardson & Stepan Wood eds. Environmental law for Sustainability A Reader (Oxford: Hart Publishing, 2006) 1 at 1-18. 48 Benjamin J. Richardson, Ikechi Mgbeoji & Francis Botchway, "Environmental Law in Post-colonial Societies: Aspirations, Achievements and Limitations" in Benjamin J. Richardson & Stepan Wood eds Environmental law for Sustainability A Reader (Oxford: Hart Publishing, 2006) 413 at 413-443.
19 Ganges water can meet the needs of both India and Bangladesh and can secure a win - win situation for all the stake holders. My thesis stands on this argument.
Transboundary Water Dispute: The Case of South Asia
Among the second category of literature regarding the South Asian water dispute,
Abbas49 conducts a study on the Indo-Bangladesh water dispute from political and diplomatic points of view. As an actor of Indo-Bangladesh water diplomacy he was involved with the negotiation process since 1971 to 1982. He portrays his personal experiences especially the problems and prospects of the Indo-Bangladesh dispute resolution. However, his work lacks legal perspectives. Again, the water and environment related new problems like the ILR project and the THD are not included in this predated document. Despite many limitations of the book to analyze the current Indo-Bangladesh water and environmental disputes, it is very pertinent to understand the Ganges water dispute.
Biswas and Uitto50 explore the sustainable development of the Ganges-
Brahmaputra-Meghna basins. They argue that for more than three decades, the development of the Ganges, Brahmaputra river systems has been the hydro-political bone of contention in the region. They concede that the main problem is water scarcity during the lean season which affects both India and Bangladesh. Only 5% of the total annual flow of the river would be sufficient to solve the downstream scarcity problems during the lean season. This would require finding new ways to store waters in the catchments to
49Supra note 5 at 1-164. 50 Asit K. Biswas & Juha I. Uitto eds., Sustainable Development of the Ganges-Brahmaputra -Meghna Basins (Tokyo, New York, Pans: United Nations University Press, 2001) at 202
20 be used when the flow diminishes. The possibility of flow augmentation should thus receive high priority in management of the water resources of the region. The authors detect that the real solution of the problem rests on the augmentation of the Ganges flow during the dry season, but they do not suggest any way out as to how to augment the dry season flow at the Ganges. In my thesis I will reflect on the methods of augmentation of the Ganges flow in the dry season
Nishat52 suggests that a multilateral body for water development in the GMB region could be formed under the banner of the South Asian Association for Regional
Cooperation (SAARC) with a mandate to examine and recommend measures of cooperation on the basis of social justice and equity. Nishat's arguments are holistic given that all members of SAARC are equally interested in such cooperation. Reality is different. Member state's power politics and chauvinism indeed make such cooperation difficult. Nishat suggests cooperation under the SAARC. The SAARC charter forbids the discussion of bilateral and contentious issues within the SAARC forum. The SAARC charter needs to be amended in order to settle the water issue within the SAARC forum.
Again India is the main obstacle on the way, because India believes that all small neighbors will form a coalition against India in such a situation. Nishat overlooks the problematic of the SAARC procedure. The paper will be useful to me to argue for regional cooperation in my thesis.
51 Ibid at xi-xiv. 52 Ainun Nishat, "Development and Management of Water Resources in Bangladesh- Post-1996 Treaty Opportunities," in Asit K. Biswas and Juha I. Uitto eds., Sustainable Development of the Ganges- Brahmaputra -Meghna Basins (Tokyo: United Nations University Press, 2001) at 80-99.
21 Rahman analyzes the principles of transboundary water resources viz: equitable and reasonable utilization, an obligation not to cause significant harm, principles of cooperation, information exchange, notification, consultation and the peaceful settlement of disputes. His work is similar to that of Salman's work entitled "The Helsinki Rules..."
The merits of his work are that he examines the Ganges treaty of 1996 and the Mahakali treaty of 1996 in the light of the legal principles. This work will help me to evaluate the
Indo-Bangladesh and the Indo-Nepal treaty regimes. It will enrich my arguments regarding the failure of bilateralism in South Asia.
Swain54 focuses on the causes and effects of the Indo-Bangladesh water dispute and concludes that India's reluctance to accept any third party mediation on the water issue has hindered the settlement of the dispute. Swain's research gives a new direction towards illegal migration to India. He argues that the Farakka barrage affected the livelihood of millions of people and many of them migrated to India for maintaining their livelihood. Swain's work is similar to that of Nishat's work entitled, "Development and
Management of Water Resources in Bangladesh." The difference is that Nishat gives a solution under regional cooperation while Swain does not give any solution to the problem. Swain's contribution is that he deals with the illegal migration issue which is a new dimension of research.
Swain's finding directed me to explore the illegal migration issue in my thesis. His findings obviously will help to establish my argument upon solid ground.
Mohammad M izanur Rahman, "Principles of Transboundary Water Resources Management and Ganges Treaties An Analysis" (2009) 25 Water Resource Development 159 at 159-173 54 Supra note 4 at 429-439, Ashok Swain, "Displacing the Conflict Environmental Destruction in Bangladesh and Ethnic Conflict in India" (1996) 33 Journal of Peace Research 189 at 194-204
22 Mirza argues that the diversion of water through the Farakka barrage reduced the dry season discharge of the Ganges and Gorai rivers which induced increasing sedimentation, water shortage and salinity in the south western region of Bangladesh. He finds a correlation between the discharge in the Gorai River and salinity. Increased salinity generates negative effects on agriculture, forestry, industry and drinking water in the southwest region of Bangladesh. Mirza has many similarities with Swains work entitled, "Conflicts over water: the Ganges water dispute." The merit of Mirza's work is that it is an empirical one based on technical and scientific analysis. The missing dimensions of his work include political, economic, strategic and legal aspects. Mirza's findings will support my arguments regarding the consequences of India's upstream diversion on the down stream Bangladesh.
Hagerty and Hagerty56 in their work find that the Indian leaders prefer to deal with weaker South Asian countries bilaterally so that India can exercise its power politics and accrue its own national interest. The authors argue in the line of Baxters argument that
Bangladesh's weakness is accentuated by its location, next to unfriendly India.57 Only difference is that Baxter focuses the vulnerabilities of Bangladesh vis-a-vis India, while
Hagerty and Hagerty emphasize on India's superiority vis-a-vis other South Asian countries. The strength of the work is that it focuses on the political, economic and military aspects of the Indian hegemony. The weakness of the work is that it lacks legal
55 M. Monirul Qader Mirza, "Diversion of Ganges Water at Farakka and its Effects on Salinity in Bangladesh" (1998) 22 Environmental Management 111 at 121. 56 Devm T. Hagerty & Herbert G Hagerty, "India's Foreign Relations" in Devin T Hagerty ed., South Asia in World Politics (Oxford: Rowman & Littlefield Publishers, Inc., 2005) at 11-45. Craig Baxter, "Bangladesh's Foreign Relations" in Devin T. Hagerty ed., South Asia in World Po/zto,(Oxford: Rowman & Littlefield Publishers, Inc., 2005) at 71.
23 dimension. Following this line of argument, in my thesis I will argue that the Indian hegemony compels it to show a lack of respect for international law regarding the transboundary water and environmental resources.
Baxter58 argues that Bangladesh is weak in any standard of economic, military and political development compared to India. But this weakness is further widened by the unfriendly India. Given the vulnerabilities of Bangladesh, India exploits the situation and violates international law by constructing the unilateral structures at the upstream of the
Transboundary Rivers. India further inflicts bilateralism on Bangladesh to address the multilateral problems like the Ganges dispute. Baxter's work is similar to that of
Hewitt's59 work entitled, The New International Politics of South Asia. The dissimilarity is that Hewitt reflects on South Asian bilateral relations as well as South Asia's global relations, while Baxter only deals with Bangladesh-India relations. Baxter's argument will be very useful for my thesis to establish that Indian bilateralism with its weaker neighbors and multilateralism with the stronger is the demonstration of the Indian hegemony.
In order to examine Indian hegemony, Hewitt explores the bilateral treaties between
India and other South Asian countries individually and finds each and every treaty unequal. This work is similar to that of Hegarty's work entitled: "India's Foreign Relations." The visible difference is that Hagerty's study is on Indian foreign relations and Hewitt's work is on the foreign relations of other South Asian countries. Both authors followed the similar lines of
58 Ibid Vernon Hewitt, The New International Politics of South Asia (Manchester Manchester University Press, 1997) at 19-83.
24 arguments. Hewitt stresses on the socio-economic and strategic factors of the Indian hegemony.
He does not look at the legal dimension of the Indian disputes with other South Asian countries.
In my thesis I will argue that the Indian socioeconomic and strategic advantages over the weaker state Bangladesh encourage it to disregard the international law for transboundary water and environmental resources.
Jahangir60 describes that the government of India has initiated construction of the
THD located 500 m. downstream from the confluence of the Barak River. The main purpose for constructing this dam is hydro-electric power generation, having an installation capacity of 1,500 MW. The Indian authorities have targeted to complete the project by 2012. This paper will provide me essential facts and figures regarding the construction of the THD.
Nazrul61 argues that the construction of the THD by India on the upstream of the
Barak River, which after entering Bangladesh continues to flow as Kushiara and Surma will be illegal unless it is preceded by prior consensus with Bangladesh. The disastrous consequences of the THD project will be a grave violation of 'no harm' principle acknowledged in the Ganges water treaty. The verdict of the Hungary v. Czechoslavakia case clearly endorses this principle. In the case, concerning the Gabcikovo-Nagymaros
Project (Hungary v. Czechoslavakia), International Court Of Justice (ICJ) has succinctly
Supra note 11 61 Asif Nazrul, "Tipaimukh Dam and International Law" The Daily Star [Bangladesh] ( July 15, 2009), online http //www thedailystar net/newDesign/news-details php°md=96884>
25 decided that Slovakia's action of unilateral diversion of the river was illegal. Nazrul's work is similar to that of C.B. Bourn's work entitled "The Right to Utilize the Waters of
International Rivers." The difference is that Nazrul explains the South Asian environmental problems in the light of international law, while Bourne tries to establish the principle of international law to explain the use of transboundary water and environmental resources. This paper provides very supportive argument for my thesis. I will use this argument in order to justify that the Indian unilateral construction of the structures at the upstream of the international rivers causing significant harm to
Bangladesh is illegal.
Dispute Resolution Process: The Peaceful Settlement
The third category of literature deals with the methods of conflict resolution.
Lowi63 shows the linkage between low politics and high politics in conflict resolution
In 977 Hungary and Czechoslovakia entered into a treaty for the construction and operation of a system of locks on Danube River One lock was to built in Czechoslovak territory (later Slovak territory) and the other two in Hungarian territory It was a joint investment project, designed for the production of hydroelectricity, improvement of navigation and protection of flooding along the Bratislava to Budapest section of the Danube (approximately 200K.m) The project began in 1978, but because of major difficulties Hungary abandoned the project by October 1989. By this time, two of the locks were nearly complete (One in Hungary and the other in Slovakia). In response to Hungary's action, Slovakia began a unilateral diversion of the river with the objective of continuing the project, in an adapted form on its own. This diversion was known as the Variant C It involved damming of the river and major changes of Danube's course and flow for the purpose of Slovakian power plant at Gabcikovo Hungary alleged that this unauthorized diversion was causing substantial environmental harm and reduced water flow and levels and that construction should be ceased. In 1992 Hungary terminated the treaty and later that year Variant C came into operation The Issues of the Hungary's termination of the treaty and Variant C were settled by the International Court of Justice The court decided that both parties had acted contrary to international law They were obliged to compensate one another for damage and the treaty remained in force and the states were told to go back and negotiate their differences in good faith according to the treaty's original objectives and in the light of the ecological problems that had arisen. See Prue Taylor, "The Case Concerning the Gabcikovo-Nagymaros Project A Message from the Hague on Sustainable Development" (1999) 13 New Zealand Journal of Environmental Law 109 at 109-126 63 Miriam R Lowi, "Bridging the Divide: Transboundary Resource Disputes and the case of West Bank Water" (J993) 18 International Security 113 at 113-138.
26 especially the Arab-Israeli conflict with the issue of water in the Jordan River basin. He focuses on the Israel's dependence on the subterranean water supply of the West Bank and its effect on the prospects for a political settlement in the region. It gives me a politico-security perspective but it is missing the legal dimension. My study will focus on legal as well as other dimensions.
For a peaceful dispute resolution, Hansen, Mitchell and Nemeth 64suggest a third party settlement. They argue that international organizations are more useful to the disputing parties to reach an agreement, 'if they have more democratic members, if they are highly institutionalized and when they use binding management techniques.' In my thesis I will argue that the mediation of the Indo-Bangladesh water disputes by the UN
Secretary-General will be equally acceptable to the world community on the ground that the UNO is the most democratic international organization in the World.
Supporting the third party mediation, Haftendorn66 argues for the existence of an international arbitration such as the ECJ in the case of the Rhine conflict or the ICJ in the case of the Danube conflict where judgments are observed by participating parties. He also favors the settlement of the dispute through the mediation of a hegemonic power, for example, the US in the case of the Israeli-Jordanian peace agreement. Arbitration by the
ICJ or any other international institution is recognized in international law. In my thesis I will keep the arbitration option open only if the other options like mediation fail.
64 Holley E Hansen, Sara McLaughlin Mitchell & Stephen C. Nemeth, "IO Mediation of Interstate Conflicts" (2008) 52 Journal of Conflict Resolution 295 at 295-325 65 Ibid 66 Helga Haftendorn, "Water and International Conflict" (2000) Third World Quarterly 51 at 51-68.
27 Islam suggests the use of good offices of a neutral third party for resolving the
Indo-Bangladesh Water Dispute. He argues that the Indus Water Dispute between
Pakistan and India was resolved in 1960 by the active mediation of the World Bank. The
Indo-Pakistan war in 1965 was settled by the successful negotiation of the former
U.S.S.R., formalized by the Tashkent Agreement. This article will provide me with legal ground to justify my policy option for a third party settlement.
Dixon68 finds that "democratic states embroiled in disputes will be more likely than others to achieve peaceful settlements." He proves the hypothesized relationship between democracy and peaceful settlement. He argues that democratic states involved in disputes are better equipped than others with the means of diffusing conflict situations. As
Bangladesh and India are both democratic states, here the prospects for peaceful settlement are bright because democracy promotes dialogue. A third-party settlement can facilitate a dialogue and can ensure a win-win situation that will be acceptable to both countries. In a democracy, people are the ultimate adjudicators and democracy and peace coexist.
Boehmer, Gratzke and Nordstrom69 argue that third parties like inter governmental organizations (IGO's) can most effectively foster peace by their interventions. The UN Secretary-General's third party role is stated generally the organization's character. The UN Secretary-General by using his good offices or by
67 M. Rafiqul Islam, "The Ganges Water Dispute: An Appraisal of a Third Party Settlement" (1987) 27 Asian Survey 918 at 918-934. 68 William J Dixon, "Democracy and Peaceful Settlement of International Conflict" (1994) 88 American Political Science Review 14 at 14-32. 69 Charles Boehmer, Erik Gartzke & Timothy Nordstorm, "Do Inter Governmental Organizations Promote Peace?" (2004) 57 World Politics at 1-38.
28 employing himself as a mediator of international conflict resolutions resolves international disputes. By using the efforts of a third party it prevents the eruption and escalation of destructive conflicts and advances a settlement which makes renewed destructive behavior unlikely.70 This is one of the best ways of having a peaceful dispute resolution. This will enrich my argument for a third party settlement in South Asia.
Lerche Jr. and Said71 have classified dispute resolutions: first, as a pacific settlement of the UN, (negotiation, good offices, mediation, inquiry, conciliation, arbitration and adjudication); The second category is a coercive procedure (recall of the diplomats, expulsion of diplomats of other countries, denial of recognition, rupture of diplomatic relations, suspension of treaty obligations); and the third category is the forcible procedure (organized application of violence in the form of war). These classifications are rational on the grounds that pacific settlement should come first, then the coercive method and the forcible procedure should be the last step. Indeed, the coercive and forcible methods will ensure the compliance with international law. It should also be noted that along with the pacific settlement, coercive and forcible methods should also be used under the direction of the UN. No other states or organizations should have the mandate to use these methods. It will be misused if so happens. However, in my thesis I will use the pacific settlement of the United Nations. This work will enrich the conceptual part of dispute resolution in my thesis.
70 Kjell Skjelsbaek, "The UN Secretary- General and the Mediation of International Disputes" (1991) 28 Journal of Peace Research 99 at 99-115. 71 Charles O. Lerche Jr and Abdul Aziz Said, Concepts of International Politics in Global perspective (New Jersey Prentice-Hall, Inc , Englewood Cliffs 1979) at 144-151.
29 I find the above reviewed literatures quite significant for analyzing the transboundary water and environmental disputes in general and the Indo-Bangladesh water and environmental disputes in particular. In sum, the literatures indicate that the reasonable and equitable utilization is the dominant principle of international law for the use of the transboundary water and environmental resources. According to this principle, a riparian state can not use the water of the international watercourse in such a way which detriments the use and enjoyment of the same watercourse by other riparian countries.
The existing literatures further reveal that according to international law, the Indian unilateral construction of structures at the upstream of the common international rivers, namely the Farakka barrage on the Ganges, the THD on the Barak and the ILR project to transfer waters of thirty international rivers from one end of India to another are clearly violations of international law.
The literatures also unfold that the weak political, economic and bargaining power of Bangladesh vis-a-vis India enabled India to exercise its hegemonic influence over Bangladesh. India's rigid stand on bilateralism to resolve the multilateral water dispute is the demonstration of its hegemony. Finally, the literatures further indicate that peaceful settlement is the universally acceptable method of dispute resolution. Peaceful settlement includes negotiation, mediation, conciliation, arbitration and judicial settlement. In the aftermath of the failure of bilateralism, third party settlement remains the alternative method of dispute resolution, hi my thesis, I will argue that a third party settlement is the best strategy for Bangladesh to resolve the Indo-Bangladesh water and environmental disputes.
30 Provisional Arguments:
The principle of "equitable and reasonable utilization" will be used in this study to analyze the utilization of the transboundary water resources and prevention of the environmental damages. In relation to the shared fresh water resources, this principle applies the notion of sustainable development. 2 In the case concerning the Gabcikovo-
Nagymaros project (Hungary v. Czechoslavakia), the ICJ in its verdict recognizes the concept of sustainable development which reconciles economic development with the protection of the environment.73 It is based on the assertion that international watercourses are shared resources and among all co-basin states there exists a community of interests. International laws such as the 1966 Helsinki Rules, the 1997 UN
Watercourse Convention and the 2004 Berlin Rules have endorsed the principle of equitable and reasonable utilization. The equitable and reasonable utilization principle restricts watercourse states from causing significant harm to other watercourse states through their use of the shared international watercourse.
I will apply the peaceful settlement theory in order to analyze the Indo-
Bangladesh water dispute. The peaceful settlement theory is the only universally accepted method of conflict resolution in the world. It is endorsed by the United Nations (UN)
Charter, the 1966 Helsinki Rules, the 1971 Ramsar Convention, the 1997 UN
72 Most extensively used definition of sustainable development is provided by the Brandt land commission, which defined it as "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs."Cited in Cecilia Tortajada, "Sustainable Development: A critical Assessment of Past and Present Views" in Asit K. Biswas & CecihaTortjaada eds., Appraising Sustainable Development Water Management and Environmental Challenges (New Delhr Oxford University Press, 2005) at ix. ; Lakshman Guruswamy & A. Dan Tarlock, "Sustainability and the Future of Western Water Law" in Douglas S. Kenney ed., In Search of Sustainable Water Management (North Hampton: Edward Elgar, 2005) at 155-180. 73 Supra note 65 at 114.
31 Conventions, the 1960 Indus Water Treaty and the 1995 SADC Protocol. There are two methods of peaceful settlement; bilateral settlement and third party settlement. Bilateral settlement is always against the weak states and it benefits the strong states because of the poor bargaining power of the weak states.74 On the other hand, the third party settlement involves mediation or conciliation by a third party or submission of the dispute to arbitration or to an international forum and the resolution is bound by international jurisdiction. The mediations of international organizations are more useful to the disputing parties for reaching an agreement.75 The third party mediation such as the ECJ in the case of the Rhine conflict or the ICJ in the case of the Danube conflict made significant breakthroughs in conflict resolutions.76 The Indus water dispute between
Pakistan and India was resolved in 1960 by the active mediation of the World Bank.77
Third parties like inter-governmental organizations (IGO's) can most effectively foster peace by their interventions.78 Another important example of third party mediation is the good offices of the UN Secretary General.79
In this study, I argue that India's unilateral construction of the structure at the upstream of the international rivers and its attempt to interlink the common international rivers, having disastrous consequences for Bangladesh, are illegal. India's lack of respect
.Myrdal argues that weak states are not only poor militarily, financially and commercially, but also in bargaining power. See Gunner Myrdal, Economic Theory and UnderDeveloped Regions ( London: Gerald Duckworth and Co. Ltd, 1957) at 74. 75 Holley E. Hansen, Sara McLaughlin Mitchell & Stephen C. Nemeth, "10 Mediation of Interstate Conflicts" (2008) 52 Journal of Conflict Resolution 295 at 295-325. 76 Supra note 69 at 51-68. "Supra note 70 at 918-934. 78 Charles Boehmer, Erik Gartzke & Timothy Nordstorm, "Do Intergovernmental Organizations Promote Peace?" (2004) 57 World Politics 1 at 1-38. 79 Kjell Skjelsbaek, "The UN Secretary-General and the Mediation of International Disputes" (1991) 28 Journal of Peace Research at 99-115.
32 for international law has derived from its hegemony. India undermines international law for its superior political, economic and military powers and applies the realist approach in order to achieve substantial gain.80 I further argue that only a third party settlement is the best strategy, because during the last thirty-seven years (1972-2009) bilateralism proved self defeating for Bangladesh.
Methodology:
Both primary and secondary sources will be used in this study. Primary sources include: treaties, agreements, memorandum of understandings, public documents, reports of the international conventions, relevant international cases, judicial decisions, and charters of the international and regional organizations. Secondary sources include reference books, scholarly journal articles, dissertations, news paper articles, internet sources, etc.
Structure of the Study:
This study will be organized in the following way: Chapter 1: Introduces my thesis. It deals with the identification of the research problem, objectives of the study, literature review, provisional arguments, methodology, structure and significance of the study. Chapter 2 deals with International law for the distribution of transboundary water resources and prevention of environmental damages of co-riparian states. This chapter
80 Hans J. Morgenthau, Politics Among Nations The struggle for Power and Peace (New York: Knopf, 1978) at 3-17; Waltz, Supra note 37.
33 analyzes the existing theories and the principles of transboundary water and environmental disputes. The theories include: absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty, and the community of interest. The principles for non-navigational uses of water contain: the Helsinki Rules, the UN
Watercourse Convention, and the Berlin Rules.
Chapter 3 provides a reflection on the Indo-Bangladesh water and environmental disputes in the light of international law. This chapter discusses the Indo-Bangladesh water and environmental disputes and the dispute resolution process over the Farakka barrage, present construction of the THD over the international river Barak and the ILR project and their future impacts on Bangladesh and their justifications in international law. Chapter 4 unveils the underlying factors for the Indian negative attitude to international law. These include: the intrinsic weakness of international law to apply on the strong state India, and the India's power politics or hegemonic influence over
Bangladesh. This chapter further explains that India's economic and military powers as well as strategic partnership with the US endorsed its hegemonic policy towards the weak neighbors, especially Bangladesh. Chapter 5 concludes this thesis with a policy option.
This chapter suggests that against the background of the failure of the bilateralism a third party settlement is the best strategy for Bangladesh to resolve the Indo-Bangladesh water and environmental disputes.
34 Significance of the Study:
This is a comprehensive study on the water and environmental disputes between
Bangladesh and India. It has linked the new problem, the Tipaimukh hydraulic dam dispute with the old problem, the Ganges dispute. This study will enrich the existing literature of International Law, Political Science, International Relations, Diplomatic
History, Foreign Policy, Political Economy, Geography, and Environmental Studies. This is a contribution to dispute resolution between Bangladesh and India. This study is interdisciplinary and it will be useful to students, scholars, policy makers and researchers.
35 Chapter: 2
Principles of International Law for the Distribution of Transboundary Water
Resources
Introduction:
History reminds us that intimate relations exist between people and water. This intimacy led to the development of hydraulic civilizations. These civilizations are called by the name of the river valleys around which they developed. Thus, the Egyptian civilization is the contribution of the Nile; the Assyro-Babylones or Mesopotamian civilization is the gift of the Tigris and the Euphrates, the Hindus belong to the Indus civilization, the Chinese is the civilization of the Huang-Ho.1 The development of the early hydraulic civilizations was based on effective administrative, managerial, religious and legal control over water.
From the early hydraulic civilization to the modern industrial civilization, conflicts and competitions for the use of international watercourses have been existing over the centuries. The reason for this is not necessarily scarcity of water; indeed, global warming, population growth and political inertia are responsible for this. Water is crucial for life and water management is critical to ensure food security, livelihood
'Apart from these, pre-Columbian, Peruvian and Meso-Amencan civilizations developed around the coastal valleys of central and South America , the Khamer civilization developed around the Mekong river, the Elam and Suziana civilizations around the Dez river (m South west Iran), the Helmand civilization along the Helmand river between present Afghanistan and Iran See Dante A Caponera, Principles of Water Law and Administration National and International (Netherlands A A Balkema, 1992) at 11-12 2,Ibid, at 12 3 Inna Zadrow, "International Aspects of Water Reforms" in Philippe Cullet et al eds Water Law for the Twenty First Century National and International Aspects of Water Law Reform in India (London Routledge, 2010) at 36
36 security and ecological security for the present and the future.4 The UN human rights bodies have acknowledged the existence of the right to water and access to water as essential and fundamental rights, required for human life and dignity.5 Increasing necessities and conflict for transboundary water resources provided opportunities for the development of the international water resources management in the 19th century.
However, the rules for the development and protection of international water resources were confined within navigational use for its comparative importance over non- navigational use in this century.6 Rules for the non-navigational uses of transboundary water resources started to evolve in the 20th Century.7
Increasing competing demands have accelerated conflicts among the users and expanded the scope for cooperation among nations which ultimately led to the development of international water law for non- navigational uses. Gleick points out, "As we approach twenty first century water and water supply systems are increasingly likely
4 Roopa Madhav, "Context for water sector and water law reforms in India" in Philippe Cullet et al eds Water Law for the Twenty First Century National and International Aspects of Water law Reform in India (London. Routledge, 2010) at 109. 5 Ahx Gowlland Gualtien, "International Human Rights Aspects of Water Law Reform" in Philippe Cullet et al eds. Water Law for the Twenty First Century National and International Aspects of Water law Reform in India (London and New York. Routledge, 2010) at 241, the United Nations Human Rights Council (HRC) held its first meeting dedicated to the Human Right to Water in September 2007, the High Commissioner for Human Rights declared in her report, "it is now time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non-discnmmatory access to a sufficient amount of safe drinking water for personal and professional uses-dnnkmg, personal sanitation .washing of cloths, food preparation and personal household hygiene-to sustain life and health." See Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights Instruments See, UN Doc A/HRC/6/3/(2007) 6 Richard E Just & Sinaia Netanyahu eds Conflict and Cooperation on Trans-Boundary Water Resources, (London. Kluwer Academic Publishers, 1998) at 4 7 Salman M. A Salman, "The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules Perspectives on International Water Law" (2009) 23 Water Resources Development 625 at 625-26
37 to both objectives of military actions and instrument of War..." While Mark Twain said,
"Whisky is for drinking-water for fighting over."9 In the 1970's the total number of trans- boundary rivers shared by two or more states was 215 and by the end of the century the number of transboundary rivers had risen to 300.10 International water law for non- navigational purposes started to formulate after the end of the World War 1.
Since then international legal system started to emerge to manage the global water resources. Customary laws and advisory bodies became standard nomenclature within international law. Till date these concepts are considered as soft law and are not legally binding.12 Still there is no universal law in force to govern the non-navigational uses of international watercourses. The development of international law for the non - navigational uses of international water courses is still in a formative phase. The efforts of the United Nations, especially the 1997 United Nation's Convention on the Law of the
Non-Navigational Uses of International Watercourses and other scholarly non governmental international institutions such as the Institute of International Law (IIL) and the International Law Association (ILA) have made significant contributions to the law of international water courses through adoption of a number of resolutions and rules. The
Peter H. Gleick, "Water and Conflict. Fresh Water Resources and International Security" (1993) 18 International Security 79 at 79. 9 Quoted in Sabine Brels, David Coates & Flavia Loures, Transboundary Water Resource Management The Role of the International Watercourse Agreements in implementation of the Convention on Biological Diversity (CBD), (no 40. 22 May, 2008) at 14. 10 Attila Tanzi & Maunzio Arcan, The United Nations Convention on the Law of International Watercourses (London. Kluwer Law International 2001) at 5 11 G Cano, "The Development of the law m International Water Resources and the Work of the International law Commission" (1989) 14 Water International, 167 at 167-171 12 Fredrick D Gordon, Fresh Water Resources and Interstate Cooperation Strategies to Mitigate an Environmental Risk (Albany. State University of New York Press, 2008) at 30
38 important contribution of the IIL was the 1961 Salzburg Resolution. The work of the ILA includes the famous 1966 Helsinki Rules and the 2004 Berlin Rules.
However, the goal of this chapter is to focus on the governing rules for the distribution of transboundary water resources and prevention of environmental damages.
It will be divided into three sections. Section 1 will deal with the existing theories for the distribution of transboundary water resources. Section 2 will focus on the principles of non-navigational uses of international watercourses. Section 3 will provide conclusions and will recommend an established and preeminent principle for the allocation of transboundary water resources and the protection of the environment.
1) Theories of Allocation of the Transboundary Water Resources for the Co- riparian States
Four key theories are prevailing in international law for the use of the transboundary water resources. Each of these theories took a particular position for the utilization of international watercourses and maintenance of territorial sovereignty as recognized and
1 "\ protected by international law.
1.1. Absolute Territorial Sovereignty
The absolute Territorial Sovereignty theory provides that a co-basin state may
freely utilize water within its territory without having any regard to the rights of the
13 J.D. Van Der Vyer, "State Sovereignty and the Environment in International Law" (1992) 23 S A L J 472 at 472; Owen Mclntyre, Environmental Protection of International Watercourses Under International Law (Alder shot: Ash gate Publishing Limited, 2007) at 12-13.
39 down stream or contiguous states.14 According to this theory, having absolute
sovereignty over water resources while they are within its territory, a state may extract
or change the quality of these waters to an unlimited extent but has no right to demand
continued flow from an upper co-basin state or to assert its right to an upper co-basin
state. This approach is virtually synonymous with the "Harmon Doctrine" named after
the US Attorney General Judson Harmon, who first elaborates the doctrine in 1895 in a
controversy between the US and Mexico concerning the diversion and use of water
from the Rio Grande.15 Rejecting the Mexican claim that prior agreement between the
two countries was necessary to make the river water by the United States in a way
which markedly reduces the flow. Harmon states:
The fundamental principle of international law is the absolute sovereignty of every nation against all others within its own territory On this premise 'the rules principles and precedents of international law impose no liability or obligation upon the united states '6
This theory does not recognize the existence of any international law on the utilization of the transboundary water resources.17 Indeed, the theory of absolute
"•Ibid, at 13 15 Mexico claimed that the principle of international law would form sufficient basis for the rights of Mexican inhabitants on the banks of the Rio Grande Their claim of the right to the use of the water of that river is contestable being prior to that of the inhabitants of Colorado by hundreds of years and according to the principle of Civil law, a prior claim takes precedent in the case of a dispute See, William L Griffin, "The use of Waters of International Drainage Basin Under Customary International Law," (1959) 53 Am J Int'lL 50 at 50. "'Quoted in Supra note 1 at 212 17 Salman M A Salman, Conflict and Cooperation on South Asia's International Rivers A legal Perspectives (London, Kluwer Law International, 2002) at 11-12
40 territorial sovereignty is the outcome of the absence of specific rules of international law
1 Q applicable to the utilization of the international watercourse. Lipper views:
The Harmon doctrine was not an expression of international law Rather it was an assertion that there being no rules of international law which governed, states were free to do as they wished
Austria and India cherished this principle in 1913 and 1956 respectively.
Austrian Imperial Administrative Court which dealt with a Hungarian complaint of interference with its right to use the water adhered this principle in a 1913 decision. The
Tribunal concluded:
International law had not then developed to the point where the upper riparian was obliged to refrain from conduct interfering with the use of a river by a down stream state and any interest of the lower riparian would be considered fairly by the upper riparian as a matter of comity, but not as a matter of legal right21
Similarly India also adhered this principle at the 1956 Dubrovnik conference relating to the development of hydraulic power affecting more than one state. The Indian participant argues that the water which flows through India is the fixed property of India like a dry land, a tree or a coal mine,22 but India retreated from the Harmon doctrine and resolved the Indus water dispute with Pakistan in the 1960's by an agreement which
See, Mc Caffrey, "The Harmon Doctrine One Hundred Years Later Buried , not Praised" (1996) 36 Natural Resources J at 725 19 J Lipper, "Equitable Utilization" in the Law of International Drainage Basin, eds Garreston, Hayton & Olmstead (New York Oceana publications Inc , 1967) at H-lli 20Decision Involving the Question of Territorial Rights over a River Flowing into a Lower Lying State, (1913)7 Am J Int'IL 653 at 653-665 21 Ibid at 653 22 Nahid Islam, The Regime of International Water courses and Transboundary Management of the Ganges River Basin ( L L M Thesis , Dalhousie University, 1993) [Unpublished] at 13
41 conceded that the former owed some obligation to the later in respect of the use of that river system within its territory.23 The absolute sovereignty theory is an extreme theory and favored by the upstream countries. Oppenheim states authoritatively against this theory:
Just like independence, territorial supremacy does not give a boundless liberty of action Thus by Customary International Law . a state is, in spite of its territorial supremacy, not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of a territory of a neighboring state -for instance, to stop or to divert the flow of a river which runs from its own in to a neighboring territory 24
The US itself did not endorse this principle in any of the treaties on common lakes and rivers signed with Canada and Mexico in 1909 and 1944.25 In the 1950's the US renounced this theory on the grounds that it was not conducive to cooperative arrangements and it was never applied. In many cases Arbitration Tribunals rejected the theory of absolute territorial sovereignty. In 1941 the Arbitrational Tribunal in the Trail
Smelter Case rejected this principle on the following grounds:
no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein when the case is of senous consequence and the injury is established by clear and convincing evidence
In 1949 the International Court of Justice (ICJ) confirmed the principle of state responsibility for acts contrary to international law that occur within the territory of a
Immediately after the partition of India and Pakistan, in 1947 India planned to utilize the waters of the Indus river in its territory in such a way that Pakistan would have been deprived of water needed for irrigation When Pakistan protested, India firmly invoked the Harmon doctrine and cut off some of the waters of the Indus system and claimed the right to do so without being accountable to Pakistan regarding its right to and interest m the same water system Ibid at 16 24 L Oppenheim, International Law (London Longmans, Green & Co 1905) at 175 2 Treaties and Other International Agreements of the United States of America 1776-1949 (Compiled by Charles Bevan, 1972) at 319 26 Trail Smelter Arbitration (United States v Canada) 3R I A A 1911(1941) at 1965
42 state and result in injury to another party.27 This theory is further invalidated by the
Arbitration Tribunal in the 1957 Lake Lanoux case which concludes:
according to the rules of good faith ,the upstream State is under the obligation to take into consideration the various interests involved ,to seek to give them every satisfaction compatible with the pursuit of its own interests , and to show that m this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own 28
Endorsing the principles of the Lake Lanoux verdict, C. B. Bourne argues: "... the basic premise of the law on this subject is the notion of qualified territorial sovereignty, that is sovereignty subject to a prohibition against causing damage in the territory of co- riparians."
Therefore, it is evident that there are frequent and consistent judicial rejections of the contention that a riparian state is free to use the water of an international river in its territory disregarding the effects it may cause to co-riparian states.30 There is a wide recognition in many treaties that riparian states are responsible for the effects of their use of common waters on others. Although treaty provisions are not binding on third parties, treaties are used as a source of customary international law.31 This is widely established that the absolute territorial sovereignty theory is not considered as part of the law of
27 See, Corfu Channel case (U K. v Albania), International court of Justice Reports, 1949, at 3 Cited in Salman, Ibid at 13 2g See, Lake Lanoux Arbitrations, (France v Spam) 24 I L R 101(1957) 29 CB Bourne, "The Right to Utilize Waters of International Rivers" (1965) 3 Can YB MIL 187 at 189 30 M Rafiqul Islam, "The Effects of the Farakka Barrage on Bangladesh and International law" (1984) 5 BUSS Journal 249 at 254 30 Ibid 31 R D Hayton, "The Formation of the Customary Rules of International Drainage Basm Law" in Albert H Garreston, Robert D Hayton & Cecil J Olmstead eds The law of International Drainage Basins (New York Oceana Publications Inc 1967) at 861-71
43 international watercourses. This theory is also abandoned on the ground that it rejects interdependence and cooperation.33 Indeed, this theory is totally obsolete due to its egoistic and unjust character. In international law it has no place, but it does have historical importance.
1.2. Absolute Territorial Integrity
The theory of absolute territorial integrity confers a right to a lower co-basin state
to demand continuation of the full flow of waters of natural quality from an upper co-
basin state, but confers no right to restrict or impair the natural flow of waters from its
territory into that of a still lower co-basin State. This theory is the anti-thesis of the
Harmon Doctrine.35 This would effectively grant a right of veto upon a down stream or
contiguous state. It establishes the rights to a riparian state to demand continuation of
the natural flow of an international river into its territory from the upper riparian's or
riparian, but imposes a duty on such a state not to restrict such natural flow of waters
to other lower riparian.36 This theory has originated from the riparian right doctrine.
This doctrine was reflected in the verdict of the English Court in Young and Co. v.
Bankier Distillery Co. The Court stated:
Every riparian owner is thus entitled to the water of this stream in its natural flow, without sensible diminution or increase, and without sensible alteration in its character or quality. Any n Supra note 18 at 549. 33 John Martin Troll Dallen, International Environmental Conflict Resolution The Role of the United Nations (Virginia: C&R Printing Inc. 1992; at 79. 34 Malgosia Fitzmaunce & Gerhard Loibl, "Current State of Development m the law of International Water courses" in Surya P. Subedi ed International Watercourses Law for the 21s' Century The Case of the River Ganges Basin (Aldershot: Ashgate Publishing limited, 2005) at 22. 35 Mclntyre, Supra note 13 at 549 36 Salman M.A. Salman, "The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules. Perspectives on International Water Law" (2007) 23 Water Resources Development 625 at 627.
44 invasion of this right causing actual damage entitles the party injured to the intervention of the court37
However, the position was later complicated by the court of Chancery's 1926
decision in Attwood v. Llay Main Collieries Ltd. where the court said:
For the purpose of this judgment, it is sufficient to state that a upanan owner may take and use the water for ordinary purposes connected with the riparian tenement (such as domestic purposes or the wants of his cattle ), and that m the exercise of his right, he may exhaust the water altogether, that he may also take and use the water for extraordinary purposes, if such user be reasonable and connected with the riparian tenement, provided that he restore the water so taken and used substantially undiminished m volume and unaltered in character, and lastly, that he has no right whatever to take the water and use it for purposes unconnected with the riparian tenement38
Thus the English doctrine only allowed for unlimited use of water for purposes
connected with the riparian tenement.
Regarding the US riparian doctrine, Justice Kent summarized his position
in 1829 by stating that the upstream must be left undiminished and that the
riparian owner should use the water in a reasonable manner. The doctrine was
recognized in a moderate way as an established general international law by the
International Law Institute in the 1911 Madrid Declaration. The declaration
recognized the fact that riparian states with a common stream are in a position of
permanent physical dependence on each other.40 In 1952 this theory was used by
3"'Young and Co v Banker Distillery Co [1893] AC691at 698 [181-4]A11 ER 439 at 441, HL 38 Attwood v. Llay Main Collieries Ltd [1926] Ch 444 at 458 39 James Kent, Commentaries on American Law (Boston Little Brown & Company 1896) at 440 40 International Law Institute .Declaration of Madrid, 20 April, 1911(1911)
45 Egypt in its negotiation with Sudan over the flow of the Nile, but it was
dismissed.41 The application of this theory was totally rejected in the lake Lanoux
case. In this case Spain's argument was that the French project could be under
taken only with its consent, since it would alter the "natural conditions of the
hydrographic basin of Lake Lanoux " The Tribunal observed
the rule, according to which states may utilize the hydraulic force of international watercourses only on condition of a prior agreement between the interested states, cannot be established either as custom or even less as a general principle of law 42
In Colorado v Kansas case, concerning the diversion of the waters of the Arkansas River, the Supreme Court stated:
The lower state is not entitled to have the stream flow as it would in nature regardless of need or use If then, the upper state is devoting the water to a beneficial use, the question to be decided in the light of the existing condition in both states, is whether and to what extent, her action injures the lower state and her citizens by depriving them of a like or equally valuable beneficial use
Similarly this principle was adhered internationally in the Norway-Sweden Agreement of
1905 on common lakes and water courses.44 In the case of Wurttemberg v Baden, the
Supreme Court of Germany in 1927 decided:
The exercise of sovereign rights by every state in regard to international rivers traversing its territory is limited by the duty not to injure the interest of other members of the international community No state may substantially impair the natural use of the flow of such a river by its neighbor45
41 Supra note 19 at 18 42 Lake Lanous Arbitration, France v Spam (1957) 12 RIAA 281, 241 ILR101 43Colorodo v Kansas, 320 US (1843) at 283 44 William L Griffin "The Use of Waters of International Drainage Basin under Customary International Law" (1959) 53 Am J Int'I L 50 at 53 45 Quoted Supra note 22, at p 23
46 This approach has tended to give a favor among lower riparian states This would
likely to operate to retard upstream countries in the development of their water resources
This theory is criticized, because it allocates rights without imposing corresponding duties
to the down stream countries 46 This theory has also been criticized and like the Harmon
doctrine is not recognized as part of contemporary international law
1 3 Limited Territorial Sovereignty/Equitable Utilization Theory
The limited territorial Sovereignty theory is based on the principle of equitable
utilization which provides each co-basin state to an equitable and reasonable use of waters flowing through its territory This principle is a compromise between the theory of
absolute sovereignty and absolute territorial integrity The fundamental assumption of this theory is that the sovereignty of a state over its territory is said to be "limited" by the
obligation not to use that territory in such a way as to cause significant harm to other
states 48
This theory incorporates the principles of sustainable development and utilization
of the waters of international watercourse 49 The term sustainable development has now become an international legal concept which involves the need to preserve natural resources for the benefit of future generation, exploiting natural resources in a sustainable
or prudent or rational (or wise or appropriate) way The equitable use of the natural
46 Supra note 33 at 79 47 Supra note 36 at 628 48 Stephen C Mc Caffrey, The Law of International Watercourses (Oxford Oxford University Press, 2007) at 135 49 Surya P Subedi, "Regulations of Shared Water Resources in International law The challenge of Balancing Competing Demands" in Surya P Subedi ed International Watercourses Law for the 21st Century (Alder shot Ashgate, 2005) at 9-10
47 resources implies that use by one state must take account of the needs of other states and the need to ensure that environmental considerations are integrated into economic or other development plans and projects.50 Similarly the Dublin principle clearly demands "a holistic approach linking social and economic development with protection of natural eco system."51
According to this theory, the existence of a community of interest requires a reasonable and equitable balancing of state interests who accommodates the needs and uses of each state.52 Equitable utilization implies that each riparian state is entitled to a reasonable and equitable share in the beneficial use of shared water. Equitable does not mean equal share. Rather it includes a number of factors such as population, dependence on water, economic needs, geography, previous use, availability of alternative resources etc. which can be considered during the negotiation over the determination of water rights. Principles of reasonable and equitable utilization and an obligation not to cause significant harm are important ingredients of the theory of limited territorial sovereignty.54 It also emphasizes the needs or dependence of the country on water. Mr.
Justice Roberts stated in the Nebraska v. Wyoming Case:
50 Philippe Sands, Principles of International Environmental Law, 2nd edition (Cambridge Cambridge University press, 2003) at 252-253 51 Dublin Statement on Water and Sustainable Development, International Conference on Water and Enviornment,Dubhn, 31 January,1992, principle 1 Cited in David Takacs, "Water Sector reforms and Principles of International Environmental Law" m Philippe Cullet et al eds Water Law for the Twenty First Century National and International Aspects of Water Law Reform in India (London Routledge, 2010) at 263 52 Muhammad Mizanur Rahman, "Principles of Tiansboundary Water Resources Management and Ganges Treaties An Analysis" (2009) 25 Water Resources Development 159 at 162 53 Sw/?ra note 8 at 106-107 54 Wildberg E Schroeder, The 1997 International Watercourse Convention -Background and Negotiation, (Germany Technical University of Berlin, 2002) at 14
48 water for beneficial use what counts No injury results from the deprivation of water unless a need is shown for that water for beneficial consumptive use at the time by the state claiming to have been wrongfully deprived of it If water is not needed by down stream senior rights, the denial of water to upstream junior rights can result only in waste No state may play dog in the manger, and build up reserves for future use in the absence of present need and present damage 55
It endorses the Stockholm Declaration of 1972 which underlines that states have sovereign rights over their natural resources; and that states must not cause damage to the environment.56 Principle 21 of the Stockholm Declaration explicitly states that:
states have, in accordance with the Charter of the UN and the principles of international law ,the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities with in their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction57
Similarly the Madrid Declaration of 1911 established absolute prohibition against activities that may result in injury to other riparians.58 On the other hand, the Salzburg
Resolution emphasized the obligation of the states not to cause harm to other states, the principle of equitable utilization was further recognized by the New York Resolution which was adopted by the ILA in 1958. The resolution stated that each co-riparian state is entitled to a reasonable and equitable share in the beneficial uses of the waters of the drainage basin. The principle of the equitable utilization was the essence of discussion by the ILA at the Tokyo meeting held in 1964 as well as the Helsinki meeting in 1966.61
The 1966 Helsinki Rules and the 1997 UN Watercourse Convention have included the key principles of equitable utilization which prohibit watercourse states from
55 325 US 589 (1945) at 568 56 Supra note 50 at 235 United Nations Conference on Human Environment, (UNCHE), 1972 The Stockholm Declaration, The Final Act at the United Nation's Conference on the Human Environment, (United nations , New York) Quoted in Supra note 33 at 639 58 Salman , "The Helsinki Rules Supra note 36 at 628 59 Ibid at 629 60 Ibid 61 Ibid at 629
49 causing significant harm to other watercourse state through their use of shared international watercourse. This theory is compatible with the Berlin Rules of 2004.
Article 8 of the 2004 Berlin Rules on water resources law says that states shall take all appropriate measures to prevent or minimize environmental harm by stating that this obligation is consistent with the principle of equitable utilization. This theory is widely accepted by the international community. An early example of the application of this theory is the 1856 agreement between Dutch and Belgian governments over the river
Meuse, which asserts: "Both parties are entitled to make the natural use of the stream, but at the same time, following general principles of law, each is bound to abstain from any action which might cause damage to other."63 Principle 21 of the 1972 Stockholm
Declaration deals not only with transboundary water resources, but also with the human environment. It states:
States have in accordance with the charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources...and the responsibility to ensure that activities with in their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the areas of national jurisdiction.64
In the Lake Lanoux case the tribunal rejected France's assertion of absolute right to use the water of the lake apart from treaty obligations and insisted that France took account of Spain's interests in undertaking the project.65 Admitting the Spanish position, the tribunal stated: "there exists a principle prohibiting the upstream state from changing
62 ibid. 63 Mcmtyre, Supra note 13 at 24 4 H Hohman, Basic Documents of International Environmental Law (London Graham and Tort man and Norwell Kluwer Acdermc Publishers Group, 1992) at 1230 65ICJ,Rep 1949, at 22.
50 the water of a river in their natural conditions to the serious injury of a downstream state."66 The tribunal, however, did not apply this principle in the case because as indicated in the award, the France project did not have any adverse effect on the downstream Spanish farmers.67 Implicit message in this verdict was that had the project caused injury to Spain, the tribunal would have applied the principle.
In the 1950's the US President Eisenhower sent Eric Johnson to attempt to mediate a resolution of the dispute between Israel and neighboring Arab countries over the use of the Jordan River and its tributaries. Jonston submitted a report in 1954 which includes the followings:
Syria, Lebanon, Jordan and Israel have accepted the principle of international sharing of the contested waters of the Jordan River and are prepared to cooperate with the U.S Government in working out details of mutually acceptable program for developing the irrigation and power potentials of the river system.. Mr. Johnston stated that the plan involved acceptance by the Arab countries and Israel of the following principles:
The limited waters of the Jordan River system should be shared equitably by the four states in which they rise and flow. This principle was implicit in the valley plans put forward respectively by the Arab states and Israel, both of which clearly recognized the right of the other states to a share of the available waters... 69
Although technical experts of states involved, agreed upon a unified Jordan valley plan, proposed by Johnston unfortunately it was not approved by Israeli cabinet and Israel went ahead with its own project for the diversion of Jordan river waters but did not exceed the quantities allotted to it under the Johnston plan. The Arab states responded with a plan to divert the head waters of the Jordan located at the Arab territory, but this bb Supra note 30 at 254. 67 Ibid at 254. 68 Ibid 69 "Eric Johnston Reports Agreement on Sharing of Jordan Waters" Press Release No.369, 6 July 1954, 31 U S. DEPT ST BULLETIN No 787, at 134 26 July 1954 quoted in McCafrey, The Law of International Watercourse, (Oxford. Oxford University Press, 2007) at 140.
51 project was not implemented. In the Trail Smelter Case between the U.S. and Canada, the arbitral tribunal decides:
under the principles of international law as well as the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or to the properties or persons there in, where the case, where the case is of serious consequence and the injury is established by clear and convincing evidence 72
This theory did not only recognize the "community of interest" and "no significant harm," but also the principle of sustainable development. The ICJ in the Gabcikovo-
Nagymaros case (Hungary v. Czechoslovakia) endorsed the principle of sustainable development:
Owing to scientific insights and to a growing awareness of the risks for mankind -for present and future generations -of pursuit of such interventions [with nature] at an unconsidered and unabated pace ,new norms and standards have been developed ,set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when states contemplate new activities but also when continuing with activities begun in the past This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development73
Owing to new scientific insights and to a growing awareness of the risks for mankind the Draft Declaration on the Rights and Obligations of States, the ILC states that, "Every state has the duty to ensure that conditions prevailing in its territory do not
70 McCaffrey^ at 141 71 It is important to mention that although the Smelter was private, the Tribunal considered its operation as Canada's responsibility to control and attributed the consequences of its conduct to Canada, as if it were a public entity Though the case dealt with air pollution, the problem of transboundary air pollution is analogous to the pollution of international streams and water courses See Trail smelter case (United States v Canada) m Reports of International Arbitral Awards, 1938-1941 (United Nations, 2006, vol 3) at 1905- 1982 12Ibid at 1920 73 Quoted in Prue Taylor, "The Case Concerning the Gabcikovo-Nagymaros Project A Message from the Hague on Sustainable Development" (1999) 3 New Zealand Journal of Environmental Law 109 at 114
52 menace international peace and order." The limited territorial sovereignty theory or the principle of equitable utilization has already been recognized as an established principle of customary international law in all contemporary codification of this area. The 1961
Salzburg Resolution, the International Law Association's (ILA) 1966 Helsinki Rules on the Uses of Waters of International Rivers, The UN 1978 Principles on Shared Natural
Resources and the successive Draft Articles on the Law of Non-Navigational Uses of
International Watercourses adopted by the International Law Commission and recommended by the Commission to the United Nation's General Assembly accepted the principle of equitable utilization.75 The principle has been confirmed by the ILA in its
2004 Berlin Rules on water Resource Law. Although the doctrine of limited territorial sovereignty was first endorsed by the Institute of International Law in its Madrid
Resolution, the principle of equitable utilization is endorsed by the 1997 UN
Convention.76 Equitable utilization and sustainable allocation of water are incorporated in the United Nations Millennium Development goals.77 Equitable access to fresh water
no resources is an integral part of the 2005 World Summit outcome. The CBD (Convention on Biological Diversity) recognizes the principles of equitability and sustainability.79
74 U.N Doc. A/con CNU/SER, A/1949 at 288. 75 Mcmtyre, supra note 13 at 27.The principle has been confirmed by the ILA in its Berlin Rules 16,Ibid, at27. 77 Sabine Brels, David Coates and Flavia Loures, Trans Boundary Water Resource Management, The Role of the International Watercourse Agreements in Implementation of the Convention on Biological Diversity (CBD) (no 40 22 May, 2008) at 15. 78 In 2005, nations gathered to identify themes and issues on which the international community and the UN system should focus in coming years. See, 2005 Summit Outcome, U N Doc. A/res/60/1 (Supp) 24 October 2005 19Supra note 77 at 19.
53 The principle of equitable utilization is also endorsed by the Ramsar Convention
1971 which requires cooperation between parties on matters of mutual interest and highlights the urgent needs to improve the allocation and management within the transboundary inland water system.80 The United Nations Economic Commission for
Europe (UNECE) in its Water Convention in 1992 not only adopted equitable utilization, but also included the adoption of appropriate measures for prevention, control and
Q 1 reduction of any transboundary impact. At present, the doctrine of limited territorial sovereignty or equitable utilization principle is supported by the majority of commentators. On the basis of its broader acceptance the principle of equitable utilization is widely regarded by commentators as the primary rule of customary international law.
McCaffrey believes that limited territorial sovereignty is probably the prevailing theory of international watercourse rights and obligations today.82 1.4. Common Management/Community of Interest
This theory is also regarded as a mutual development theory. It is a variation of equitable utilization theory. It is based on the premise that international water course is well managed as an integrated whole and that it is most efficiently administered through an efficient institutional machinery established in order to secure equitable utilization and development. It not only adheres the principle of equitable utilization and development, but also follows the integrated development approach and international regulation of the watercourse environment. This theory emphasizes on the establishment of international
80 Ibid 81 See UNECE Water Convention, Article 2(1). 82 %?ranote48 7 at 135.
54 institutions in which all riparian states participate in order to formulate policies applicable to the watercourse.83 This theory emphasizes on the joint management of the river which includes joint planning and joint construction. This approach also envisaged by the 1997
UN Convention on the Non-Navigational Uses of International Watercourses which provide for the creation of the joint management body, an international river commission.84 The principle of community of interests was adopted by the Permanent
Court of International Justice (PCIJ) in the River Oder Case. The importance of this principle was further reaffirmed by the ICJ in the 1997 Gabacikovo-Nagymaros Project case (Hungary v. Slovakia) in which the court pronounced as follows:
Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well as evidenced by the adoption of the convention of 21 May 1997 on the law of the non-navigational uses of international watercourses by the UN General Assembly85.
On the basis of this principle the court further concludes:
Czechoslovakia, by unilaterally assuming control of a shared resources and thereby depriving Hungary of its rights to an equitable and reasonable share of the natural resources of the Danube... failed to respect the proportionality which is required by international law.
According to this theory, the entire river basin is an economic unit and the rights over the waters of the entire river are vested in the collective body of the riparian states,
Supra note 34 at 28-29. Cited in Supra note 34 at 23. Cited m Ibid, at 23. Quoted in Mcmtyre, Supra note 13 at 31
55 or divided among them either by an agreement or according to proportionality.
Mccaffrey refused to recognize the concept of community of interest as a theory, rather he considered it as a principle that imposes concrete obligations of riparian states like the equitable utilization88 The shared watercourse system adopted by the Southern African
Development Community (SADAC) in 1995 adopted the community of interest principle.
The SAD AC provides in article 2 that the member states are to respect and abide by the principles of community of interests in the equitable utilization of shared watercourse systems and related resources. The 1992 agreement between Namibia and South Africa on the establishment of a permanent commission provides that the commission's objective is inter alia, "to act as technical adviser to the parties on matters relating to the development and utilization of water resources of common interest to the parties."90 The
Mekong River Committee was established on the principle of community of interest. Six riparian states often referred to as evidence of the Mekong spirit has become the subject of agreement.91 The lower Mekong co-riparian states are Thailand, Cambodia, Laos and
Vietnam, while China and Myanmar are upper riparians. The Mekong Treaty was signed by only four of the riparian states, none of which controls the head waters of the system92
Regarding the need for setting up a joint management system, Kaya suggests that "basin wide institutions which are autonomous at least to a certain extent appear to be necessary
87 Supra note 7 at 16 88 Supra note 48 at 93-94. 89 FAO, Treaties Concerning the Non-navigational Uses of International Watercourses Africa (FAO Legislative study 61, 1997) at 146 90 Mcmtyre, Supra note 13 at 32 91 online •< http //www mrcmekong org/download/agreement95/agreement_j3rocedure pdf > 92 Patrica Wouters, "Editor's Foreword to international water law," Selected writings of Professor Charles B Bourne, (London Kluwer Law International, 1997)
56 in order to realize the common management of international watercourses." The 1997
UN Convention of the Law of the Non-Navigational Uses of International Watercourses actively encourages watercourse states to enter into common management
94 arrangements.
2. Principles for Non-Navigational Uses of Water
In addition to the above mentioned theories, the International Law Association (ILA), the International Law Institute (ILI), the International Law Commission (ILC) of the UN through their efforts especially through the Madrid Declaration of ILI in 1911 which established absolute prohibition against activities that may result in injury to other riparian, the Salzburg Resolution of the ILI which emphasized the obligation of the states not to cause harm to other states, the 1958 New York Resolution of the ILA which established the reasonable and equitable share in the beneficial use of the waters of the drainage basin, the 1966 Helsinki Resolution and 1997 UN Watercourse Convention adopted the principle of reasonable and equitable utilization as cardinal principle of both
International Conference on International Watercourses. The Berlin Rules of 2004 unequivocally endorsed the principle of reasonable and equitable utilization of international watercourse. The Helsinki Rules (ILA), The UN watercourse convention
(ILC) and the Berlin rules (ILA) which established the major principles for non- navigational uses of international water course are analyzed here.
I. Kaya, Equitable Utilization The Law of the Non-navigational Uses of International Watercourses (Aldershot: Ashgate ,2003) at 85. 94 Mcmtyre, supra note 13 at 35.
57 2.1. The Helsinki Rules
The International Law Association (ILA) Conference held in 1966 in Helsinki adopted the final report of the committee on the uses of the waters of international rivers (the 'Old
Rivers Committee which had been established in 1954) is called the Helsinki Rules.
These rules served as the basis for the codification of international water law of the
International Law Commission (ILC) and the UN Convention on International
Watercourses 1997. In the 1966 Helsinki Rules international water law had been codified for the first time.95 Followings are the main features of the Helsinki Rules:
1. Defining drainage basin. Article 2 of the Helsinki Rules defines international drainage basin as a geographical area extending over two or more states determined by the water shade limits of the system of waters, including surface and underground waters, flowing into a common terminus." 6 As such the Helsinki Rules also apply to ground water connected to surface water. This is the first time that transboundary ground water was addressed by any international legal instrument.
2. Principle of reasonable and equitable utilization. The Helsinki Rules established the principle of reasonable and equitable utilization of waters of an international drainage
no basin among the riparian states as the basic principle of international water law. Article
IV of the Helsinki Rules explicitly states that each basin state is entitled within its territory to a reasonable and equitable share in the beneficial use of the water of an
95 Supra note 34 at 35. 96 Quoted in lb id. at 35. Supra note 7 at 629. 98 Ibid, at 629
58 international river. Article V of the Helsinki Rules states that a reasonable and equitable share is to be determined by, but are not limited to the factors such as the past utilization of the waters of the basin including existing utilization; the economic and social needs of all basin states; the population dependant on the waters of the basin in each state; the availability of other resources etc.
3. Pollution control and no significant harm. Article X of the Helsinki Rules states that consistent with the principle of equitable utilization of the waters of an international drainage basin, a state must prevent sustainable injury in the territory of a co-basin state and should take all reasonable measures to abate existing water pollution to such an extent that no substantial damage is caused in the territory of a co-basin state.
A.Cooperation and negotiation: Article VII through Article XXVI provide the obligation to prevent the causing of significant harm to other basin states and provide for general obligations to cooperate, regular exchange of data, priority of uses, and the obligation for prior notification, consultation, and negotiation when a contemplated use by one basin state affects another basin state, and provisions for protection, preservation and management of the watercourse including ecosystem protection, pollution control and the introduction of new species.102 In 1994 the UN International Law Commission, after careful considerations concluded that the principle of equitable utilization, as stated in the
1966 Helsinki Rules on the uses of the waters of international rivers, is a customary rule
99 Yosef Yacob, Equitable Utilization in the Blue Nile River Sub-Basin Context, Problems,and Prospects, PhD Dissertation (York University, Osgoode Hall Law School, Toronto, Canada, 2002)[un published] 100 Supra note 34 at 37. 101 Ibid 102 Supra note 99 at 13
59 of international law103 applicable to the utilization of international rivers.104 This conclusion was the basis for the 1994 Draft Articles on the Law of the Non-Navigational
Uses of International Watercourse, subsequently adopted by the International Law
Commission105 and approved in 1997 by the UN General Assembly as the United
Nation's Convention on the Law of the Non-Navigational uses of international
Watercourses.106
It is obvious from the Helsinki Rules that reasonable and equitable utilization of the waters of international basins emerged as the guiding principle of international law.
Although the Helsinki Rules do not include a separate reference to the obligation 'not to cause significant harm,' it is considered as a factor for determining reasonable and equitable utilization.107 Although like any other ILI and ILA Rules, the Helsinki Rules are not legally binding until the adoption of the UN Convention 30 years later in 2007, they were regarded as the single most authoritative and widely used set of rules for regulating the use and the protection of international watercourses. Charles B. Bourne branded the
1 08
Helsinki Rules as Customary International law accepted by international community.
2.2. The United Nations Watercourse Convention
The Helsinki Conference Report of the ILA Committee on the Uses of Waters of International Rivers, July 1996, at 56. cited m Supra 99 at 11. 104 C. B. Bourne, "The international Law association's Contributions to International Water Resources Law" (1996) 36 Nat Resources J 215 at 215-216. 105 Ibid. 106 Swpra note 99 at 11. 107 Salman, Supra note 7 at 630. 108 Supra 104 at 155-216.
60 On December 8l , 1970 the United Nations General Assembly adopted a resolution asking the International Law Commission to undertake a study on the non-navigational uses of international watercourses with a view to its progressive development and codification.109 After twenty years of work, the commission completed its work on draft articles on Non-Navigational Uses of International Watercourses in 1991. After receiving comments from the different governments, the commission at its 1994 session adopted in the final form a set of 33 draft articles on the Law of the Non-Navigational Uses of
International Watercourses.110 The commission then recommended that a convention be prepared based on the draft articles and the General Assembly accepted the recommendation in 1994 and recommended the draft articles that year.
After three years of informal and formal deliberations by the UN authorized working group, it approved the articles and opened the Convention on the Law of Non- navigational Uses of International Watercourses for signature on May 21, 1997.111 A total of 103 countries voted for the convention with 3 against (Burundi, China and Turkey) and there were 27 abstentions (including India & Pakistan), while 52 countries did not participate in the voting.112 In the context of a convention on international watercourses
103 affirmative votes constituted a strong endorsement. The convention remained open for three years until May 20, 2000, but only 16 states signed the convention until that
109 Progressive development and codification of the rule of international law relating to international watercourses, GA Res. 2669/UN GAOR, 25th session, Supp. No.8 UN Doc. A/8028(1970) at 127. '10 Report of the International Law Commission on the Work of the 46th session, UNGAOR 49th Sess. Supp.No. 10,UN Doc. A/49/10 (1994) at 197. 111 Convention on the Law of the Non-Navigational Uses of International Watercourses, A, Res. 51/229, UN GAOR,, 51st Sess., UN Doc. A/RES/51/229 (1997), reprinted in (1997) 36 I.L.M. 700 112 Supra note 7 at 632. 113 Stephen C. McCaffrey and Mpazi Sinjela, "The 1997 United Nations Convention on International Watercourses (1998)" 92Am J Int'IL91 at 105.
61 time. The Convention needs 35 instruments of ratification or accession to enter into force.
Until July 2010, more than thirteen years after its adoption, the Convention is still to enter into force.114 It has been ratified or acceded to by 16 states only. The convention is divided into seven parts and consists of 37 articles. In addition, it includes an annex of arbitration. In sum, by enshrining three main principles of international fresh water law, namely the principle of reasonable and equitable use, no significant harm and information exchange and codification,115 it made a significant contribution to international water law.
It is regarded as a global water law. The main characteristics of the convention are listed below:
1. Watercourse. The term watercourse is defined by the convention to include both
"surface water and ground water constituting by virtue of their physical
relationship a unitary whole and normally flowing into a common terminus."116
This definition is largely based on the Helsinki Rules. This definition not only
recognizes the hydrological reality but also draws the attention of states to the
interrelationships among all parts of the system of surface and underground
waters that make up an international watercourse.117 In chapter 18, agenda 21 it
includes:
Although signatures closed on 20 May 2000, Sates can still become parties to the Convention by acceding to it. This means that they can have the Convention approved or accepted through their legislative process without having it signed. Until January 2009 it has not been ratified by the UN membership. Online:
62 ...the surface and ground water resources that could be developed on a sustainable basis and other major developable water-dependent resources and, simultaneously, to initiate programmes for the protection, conservation, and rational use of these resources on a sustainable basis."8
2. Equitable and reasonable utilization. Article 5(1) provides:
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 there form, taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse.''9
Similar to the Helsinki Rules, article 5 of the Convention embraces the principle of equitable and reasonable utilization and lays down in article 6 certain factors and circumstances that should be taken into account for determining such equitable and reasonable utilization. Equitable utilization involves: optimal utilization of international watercourses i.e., providing maximum benefit to each basin state from the use of the waters with the minimum detriment to each; sustainable use and ecological protection of international watercourses and equitable participation. Article 5 embodies the principle of equitable participation:
Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present convention
3. Obligation not to cause significant harm. The Convention also deals with the obligation not to cause significant harm and requires the watercourse states to take all
Supra note 10 at 65. 119 Quoted in ibid at 103 uoibid at 105. 121 Ibid p 117
63 appropriate measures to prevent the causing of significant harm to other watercourse states. Article 7 states that watercourse states are to "take all appropriate measures to
1 97 prevent the causing of significant harm to other watercourse states." If such harm occurs, the state causing the harm shall "take all appropriate measures in consultation with the affected state to eliminate or mitigate such harm and where appropriate, to discuss the question of compensation."123 Indeed, the question of compensation arises in connection with the obligation of consultation with a view to balancing the equities of the states concerned.124
4. Obligation to cooperate and the regular exchange of data. Article 8 of the Convention imposes on watercourse states a general obligation to cooperate and article 9 provides for the regular exchange of data and information. By these principles the Convention also set the provision for the establishment of joint mechanisms or commissions and the regular exchange of data and information. The other provision includes the notification of other riparian states of planned measures with possible significant adverse effects.1
5. Environmental protection. The Convention established rules for the protection of environments. Articles 11-19 provide the provisions for the "protection, preservation and management of international watercourses." These articles deal with a number of elements, including protection and preservation of ecosystems; prevention, reduction and
Article 7(1), Convention on the Law of the Non-Navigational Uses of International watercourses, GA Res51/229, UN GAOR, 51st Session, UN Doc, A/RES/51/229(1997) 36 L.L.M. 700UN Doc. 123 See, Article 7(2), Ibid 124 Supra note 10 at 163. 125 Supra note 122 Article 8 and 9. 126 Supra note 7 at 634.
64 control of pollution; introduction of alien or new species; and protection and preservation of marine environment.
6. Dispute settlement. Article 33 and the annex to the convention deal with dispute settlement mechanisms and procedures. The article lays down a number of methods for the dispute resolution, including negotiations, jointly seeking the good offices of or mediation and conciliation by a third party, or use of joint watercourse institutions, or submission of the dispute to arbitration or to the International Court of
Justice.127Although some critics argue that the Convention does not or only partly developed Customary International law,128 there is no doubt that it is often seen as the most important current global fresh water agreement.
By enshrining three main principles of international fresh water law, namely the principle of equitable and reasonable use, the principle of no significant harm and the principle of international exchange and codification, it reflects the concept of fair, equitable and cooperative transboundary uses of international watercourse.
2.3. The Berlin Rules
In 1997, following the adoption of the UN Convention, the Watercourse Committee of the ILA started considering the question of how to proceed with the revisions of the
Helsinki Rules. It was discussed in the ILA Conference in London in 2000 and the
121 Ibid at 634. Joseph W. Dellepenn, "The Berlin Rules on Water Resources. The new Paradigm for International Water Law" in Randall Graham ed. The World Environment and water Resource Congress 2006 Examining the Confluence of Environmental and Water Concern (Omaha: American Society of Civil Engineers, 2006) cited in Irma Zodrow, Supra note 3 at 38. Supra note 3 at 39.
65 revision process continued after the conference. The committee presented its third report at the New Delhi Conference in 2002 and decided to complete the project by 2004.
During the Gent meeting of the Water Resources Committee in March 2004, the 11 members of the committee who attended the meeting (Out of 22 members) completed the work and unanimously approved the revised set of rules of the ILA. The rules were discussed and approved during the ILA's 71st conference held in Berlin in August 2004.
The Previous title of the Rules "The Revised ILA Rules on Equitable and Sustainable
Uses in the Management of Waters" was changed and a new title "The Berlin Rules on
Water Resources" replaced it.130 The Berlin Rules are very comprehensive. The document is consists of 73 articles and divided into 14 chapters, covering various issues of water resources which go beyond the Helsinki Rules and the UN Watercourse
Convention. The Key characteristics of the Berlin Rules are listed below:
1. Integrated approach. The Berlin Rule adopted an integrated approach and linked
between the principle of reasonable and equitable utilization with the obligation not to
cause harm.131The Berlin Rules are applicable to the management of all waters, both
national and international. This is a major deviation of the ILA from its entire
previous work that dealt exclusively with the international rivers. Chapter II of the
Berlin Rules include various issues related to all waters, ranging from participation of
persons likely to be affected by decisions concerning the management of waters, the
Supra note 7 at 635. Ibid.
66 conjunctive management132 of surface waters, ground water and other waters in a
1 ^^
unified and comprehensive manner, and integration of the management of waters
with the management of other resources as well as sustainable management of
water134 and the prevention or minimization of environmental harm. Article 12 states: Basm states shall in their respective territories manage the waters of an international drainage basm in an equitable and reasonable manner having due regard for the obligation not to cause significant harm to other basm states 135
2. Different from the Helsinki Rules and the UN Water Course Convention
The Berlin Rules oblige each basin state to manage the waters of an international drainage basin in an equitable and reasonable manner. The term 'manage' is defined in article 3(14) of the Berlin Rules to mean "use, protection, allocation, regulation and control of the waters." Thus the Helsinki Rules and the UN Convention established and emphasized the right of each riparian state to a reasonable and equitable share. The
Berlin Rules emphasized the obligation to manage the shared watercourse in an equitable and reasonable manner. Another major distinction is that the requirement under the Berlin
Rules to manage the waters of an international drainage basin in an equitable and
Conjunctive Management means: "in dealing with fresh waters and related resources ,basm states shall use their best efforts to manage the surface waters, the ground water, and other pertinent water resources of the basin together in a comprehensive managerial system See, Supra note 34 at 41. 133 The General principle on integrated management reads Basm States shall use their best efforts to integrate appropriately the management of the water resources of a drainage basm with the management of other natural resources of the basm Ibid, at 41 134 The Principle of sustainable development is seen as one of the general principles to be applied to the uses of an international watercourse. The relevant provision reads as follows "States acting individually or jointly ,shall exercise due diligence to achieve the sustainable use of the fresh waters and related resources subject to their jurisdiction" Quoted in Ibid at 41 135 Quoted in Supra 7 at 635.
67 reasonable manner is subject to having due regard for the obligation not to cause
significant harm to other states .
3. No significant harm. The Berlin Rules addressed the significant harm in article 16. It
requires the basin states in managing the waters of an international drainage basin, to
refrain from and prevent acts or omissions within their territories that cause significant
harm to another basin state "having due regard for the right of each basin state to make
equitable and reasonable use of the waters"136
4. Provisions for environmental protection
The environmental provisions of the Berlin Rules are quite comprehensive.
Chapter V of the Berlin Rules deals with the protection of the aquatic environment and
calls for implementation of the precautionary approach in the implementation of the
obligations under that chapter. It requires the states to take all measures to protect the
ecological integrity necessary to sustain ecosystems dependent on particular waters and to prevent, eliminate, reduce or control pollution and harm to the aquatic environment. It
further requires (chapter VI) the states to undertake prior and continuing assessment of the impact of programs, projects or activities that may have significant effects on the
aquatic environment and lays down detailed procedures for the impact assessment
137 process.
5. Other Issues
Quoted Supra note 7 at 636. Ibid, at 637.
68 Chapter IV of the Berlin Rules deals with the rights of persons. In this chapter, article 17 states that every person has right to have access to sufficient, safe, acceptable, physically accessible and affordable water to meet the individual's vital human needs. The document further deals with ground water (chapter 8), Navigation (chapter 9) and international cooperation and Administration which include a number of aspects including exchange of information, notification of programs, plants, projects or activities, and the detailed procedures for such notification, establishment of basin-wide joint management, compliance review and sharing of expenses. Settlement of disputes is addressed under chapter XIV of the Berlin Rules.138
Criticism
Critics argue that the Berlin Rules cover both domestic and International waters.
This is a marked departure from other international water law instruments that apply strictly to shared waters. Questions are being raised about the wisdom of application of principles of international law to waters that are exclusively domestic. The questions are particularly pressing given the fact that the world community has not yet succeeded in agreeing on a treaty that would regulate the uses of international watercourses. Secondly, the Berlin Rules have gone beyond the established principles of Customary International
Law (considered by the ILA) and incorporated emerging principles as well. In fact, the
69 established principle of international law are legally binding, the emerging ones are not139
Conclusion:
After careful analysis of the above mentioned theories, and rules originated out of different significant international conventions it is clearly evident that reasonable and equitable utilization of international watercourse has become the governing principle of international water law It has substantial support in the state practice, judicial decisions and international codifications It has been recognized as an established principle of Customary International Law in all important codifications of this area, especially the Madrid Resolution
1911, the Salzburg Declaration 1961, the Helsinki Rules 1966, the Stockholm
Declaration 1972, the United Nations Environment Program's 1978 Principles on Shared Natural Resources, the UN Convention on Watercourse 1997 and the
2004 Berlin Rules
Based on the doctrine of limited territorial sovereignty, the principle of
"reasonable and equitable utilization" was the product of the US Supreme Court's decision in the interstate apportionment case beginning in the early 20th century 140 The philosophical basis of the principle of equitable utilization was founded by Justice Oliver
Wendell Holmes of the US Supreme Court in the case of New Jersey v NewYork, in
U9Ibid at 638
140 Kansas v Colorado, 206 U S 46 (1907) important later cases include, Wyoming v Colorodo, 259 U S 419, modified 260 US (1922) amended 353 U S 953(1957)
70 1931.141 In that case New Jersey, the lower riparian, sought to enjoin New York from
diverting waters of the Delaware River, its tributaries or headwaters to increase the water
supply of New York city. In exercising the rule of law to be applied, Justice Holmes
stated as follows:
A river is more than an amenity. It is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction But clearly the exercise of such power to the destruction of the interest of lower state could not be tolerated. And on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished Both states have real and substantial interests in the river that must be reconciled as best they may The different traditions and practices m different parts of the country may lead to varying results but the effort always is to secure an equitable apportionment without quibbling over formula.142
In this case, Holes rejected both the absolute territorial sovereignty and absolute territorial
integrity and recognized that both states have real and substantial interests and that these interests
must be reconciled as best as they may, rather than simply declaring one state the absolute winner
and the other the absolute loser. The objective of this process of reconciliation "always is to secure
an equitable apportionment."143 Apart from philosophical ground, following rationality, legality
and practicability made the equitable utilization theory as the central principle of international law
for the distribution of international waters and protection of environments:
1. Limited sovereignty. The principle of equitable utilization is a doctrine of limited
sovereignty which occupies middle ground between the two extreme doctrines of absolute territorial sovereignty and absolute territorial integrity. It recognizes the rights of both upstream
and down stream states, that means this principle protects the interests of both the polluters and the
141 283 US 336(1931) 142 Quoted in McCaffrey, Supra note 48 at 386 l43, Ibid at 386.
71 victims In the Aargua v Zurich case the Swiss Federal Court viewed that sovereignty was not at all an absolute right to dispose of waters, but rather an obligation to recognize the equal sovereignties of the other jurisdictions through which the water flowed 145 This principle is reflected in the Gabcikovo-Nagymaros case where the ICJ views, "Community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states "
2 Shared natural resources It recognizes shared natural resources When any resource is naturally distributed between/among more than one sovereign states is called shared resource This principle endorses the view that shared resources are subject to the obligation of equitable utilization and transboundary cooperation
3 Equitable utilization and environmental protection As a matter of legal principle, equitable utilization means equality of rights or shared sovereignty, not equal division 147
Equality of rights means the riparian states have an equal right to use the waters of such waterway according to their needs 14 The principle of equitable utilization also involves the integration of environmental protection l This principle is consistent with the 1972
Stockholm Declaration 150
Owen Mcintyre Supra note 13 at 77 145 %?ra note 69 at 91 146 Quoted in ibid at 77 147 Supra note 22 at 37 148 Lipper, "Equitable Utilization" in Garreston, Hayton & Olmstead eds The Law of the International Drainage Basins (New York Ocean publications Inc ,1967) at 44 149 Mcmtyr, supra note 13 at 79 150 Principles 21 and 22 of the Stockholm Declaration
72 4 No significant harm The principle of equitable utilization is compatible with the principle of no significant harm It is based on the Roman Maxim "sic utere tuo ut ahenum non leadas (so use your own as not to harm that of another") According to this principle, a riparian state has the legal right to utilize the water of an international river m its territory, if it causes no injury or only a minor injury to co-riparian states 151
5 Reasonableness The right of each state to reasonable use of water depends on the extent of their dependence on water, comparative social and economic gains accruing to each, pre-existing understanding among the states, pre-existent apportionment etc
6 Optimum utilization It recognizes optimum utilization which means maximum utilization and optimum economic development of an entire river basm regardless of political regimes or states First, it takes into account the socio-economic needs of the basm states, secondly it aims at distributing the waters among the basm states in such a way as to satisfy their needs to the greatest possible extent Finally, it seeks to distribute the waters so as to achieve the maximum benefit for each co-basm state with the minimum detriment152
7 Sustainable Development Sustainable development requires maintenance, rational use and enhancement of the natural resource base that underpins ecological resilience and economic growth 153
151 Supra note 29 at 188-220 152 Supra note 33 at 79 153 UNEP, Governing Council Decision 15/2 of May 1989, Annex 11, GAOR, 44th Suppl No 25(A/44/25)
73 8 Notification. The Principle of equitable utilization recognizes the obligations of notification, consultation and negotiation in case where the proposed use by another riparian of a shared resource may cause serious harm to its rights of interest. These principles are generally accepted in international legal documents.
9. Data Sharing: It endorses the obligation to share data. It is the obligation of each riparian state of an international watercourse to cooperate and exchange data and information regarding the state of watercourse as well as current and future planned uses.
Unless all basin states share hydrologic data, no satisfactory agreements on allocations or any related issue is possible.154
10. Peaceful settlement: The principle of equitable utilization advocates that all states in an international watercourse should seek a settlement of the disputes by peaceful means.
This principle has been endorsed by most of the modern international conventions, agreements and treaties. These include: The 1966 Helsinki Rules (article 27), the 1997
UN Watercourse Convention (paragraph 1, article 33) and the 1995 SADC Protocol. It is also incorporated in the 1960 Indus Water Treaty (article 9, annexure F), the 1995
Mekong River Basin Agreement (articles 34-35), the 1995 Watercourse system (article 7) and the 2002 Framework Agreement of the Sava River basin (articles 22-24).
Supra note 5 at. 109.
74 Chapter: 3
Reflection on the Indo-Bangladesh Water and Environmental Disputes in the Light
of International Law
Introduction
Bangladesh along with the other South Asian countries shares the Ganges-
Brahmaputra-Meghna (GMB) River basin1 (Table 1, appendix). Bangladesh has 54 common rivers with India which contribute 92% of the total surface water and the remaining 8% is generated in Bangladesh. Being the lowest riparian country, Bangladesh has no control over the common rivers.2 The Indian unilateral withdrawal of water at the upstream of the Ganges and construction of the Farakka barrage, the Tipaimukh
Hydraulic Dam (THD) and the Interlinking of Rivers project (ILR) are the predominant sources of irritation between India and Bangladesh.
In this chapter I argue that the Indian unilateral construction of the Farakka barrage on the international river, the Ganges and the diversion of waters at the upstream have seriously affected the ecology, economy, environment and livelihood of the 33
' The GMB river basm is shared by China (Tibet), India, Bangladesh and Bhutan The GMB river basm is significantly dependent on glaciers as primary sources of fresh water There are more than 11,000 glaciers located in Nepal, India, Chinese Tibetan plateau and Bhutan The vast majority of these glaciers rest in China Aside from feeding many rivers and lakes of the GMB basins with fresh water, these glaciers comprise 2,571 8 cubic kilometers of ice or 617 cubic miles of frozen water See Erica J Thorson, "Sharing Himalayan Glacial Melt Water The Role of the Territorial Sovereignty" (2009) 19 Duke Journal of Comparative and International Law 487at 488-489 2 Mohammad Humayun Kabir, "The Policy and Law of Bangladesh Concerning the Utilization of Her Water Resources" in Surya P Subedi ed International Watercourses Law The Case of the River Ganges Basin (Aldershot Ashgate publishing limited, 2005) at 213 75 million people in Bangladesh. The THD which is under construction will a pose serious threat to the livelihood of about 40 million people of the north eastern part of Bangladesh.
Finally, the ILR project, which will transfer waters of 30 common rivers from one end of
India to another, will jeopardize the existence of Bangladesh. I further argue that the
Indian actions are gross violations of the principles of reasonable and equitable utilization, no harm, cooperation, and sharing data. A state cannot lawfully use its territory to the detriment of another state and is liable for extraterritorial damages.
International law forbids India to construct unilateral structures on international rivers in a manner that is seriously injurious to Bangladesh.3
This chapter focuses on the Indo-Bangladesh water and environmental disputes and dispute resolution process over the Farakka barrage on the international river, the
Ganges, present construction of the THD over the international river, the Barak, and the
ILR project and their future impacts on the down stream country Bangladesh and their justifications in international law.
3 A riparian state has the legal right to utilize the water of an international river m its territory if it causes no injury or only a minor injury to co-riparian states All major interferences by a riparian state with the water of an international river within its territory that seriously affects the use and enjoyment of the same water system by co-riparian states having rightful shares is illegal. See, C B Bourne, "The Right to Utilize the Water of International Rivers" (1965) 3 Can YB Int'l Law 187 at 188-220 76 The Farakka Barrage Dispute
The Ganges dispute was recognized in 19514 when the Pakistan government protested to India about the proposed Farakka barrage. Pakistan requested India to consult them before operating any schemes, which might adversely affect the interest of the then
East-Pakistan, which is now Bangladesh. India did not want any negotiated settlement with Pakistan. India rather refused to recognize the Ganges as an international river.5
India's claim was based on the fact that about 80% of the basin area of the Ganges lay in India. But the Indian argument and actions were violations of the Barcelona
Convention which called upon each of the riparian states to refrain from creating obstacles or dangers to navigation. India later not only retreated from their earliest position over the internationality of the Ganges, but also accepted the principle that each riparian state was entitled to a reasonable and equitable share of the waters of an international river.7 With the emergence of Bangladesh in 1971, the Government of
Bangladesh has started a fresh negotiation with India on the Farakka barrage issue. India
4 A Nishat & M F K Pasha, "A Review of the Ganges Treaty of 1996" (paper presented to the seminar entitled "Globalization and Water Resources Management the Changing Value of Water, " University of Dundee International Specialty Conference, August 6-8, 2001) [Unpublished] 5 An international river can be defined from navigational and non-navigational points of view From a navigational standpoint there are two conditions for a river to be international, 1 The geographical criterion, l e , passing through more than one country, 2 navigabihtycritenon, I e , the river must be suitable to navigation From a non-navigational standpoint, an international river is one, which flows through or between the territories of two or more states See Ibrahim Kaya, Equitable Utilization The Law of the Non- Navigational Uses of International Watercourses (Aldershot Ash gate Publishing Limited, 2003) at 12-18 6 Paragraph 1, article 10 of the Bercelona Convention states that each riparian state is bound on the one hand, to refrain from all measures likely to prejudice the navigability of the waterway, or to reduce the facilities for navigation, and on the other hand, to take as rapidly as possible all necessary steps for removing any obstacles and dangers which may occur to navigation Online < http //www unep ch/regionalseas/regions/med/t_barcel htm> 7 Stephen C McCaffrey, The Law of International Watercourses (Oxford Oxford University Press, 2007) at 292 77 is in an advantageous position over Bangladesh from geographical and hydrological settings.
India, the upper riparian country, is constructing barrages in almost all the major rivers and depriving Bangladesh from its due share of water resources. The most conspicuous, "Farakka barrage" was erected over the international river, the Ganges to divert its water to the Bhagarati-Hoogly River in order to keep India's Kolkata Port navigable and free of stilts.8 This barrage was designed to improve the communication facilities including the drainage, sanitation, and water supplies in Kolkata as well as inland transport throughout West Bengal. The other probable purposes of the project were to control the Ganges water in order to irrigate the Indian states of Uttar Pradesh (UP) and
Bihar.9
The Ganges10 is an international river originated in the Himalayan peak and ended in the Bay of Bengal together with the Brahmaputra and Meghna. The mighty river, the
Ganges is 2550 k.m. long, one of the largest river systems in the world.11 The countries that share the basin area are China, Nepal, India and Bangladesh. The Ganges basin has a total area of 1,087,300 square kilometers. China shares 3.08%, Nepal, 13.56%, India
79.10 % and Bangladesh shares 4.26% respectively (Table 2, appendix). The population of the Ganges basin is about 344 million, of which 270 million in India, 52 million in
Ishtiaq Hossain, "Bangladesh-India Relations: Issues and Problems" in Emajuddm Ahamad ed., Foreign Policy of Bangladesh A Small States Imperative (Dhaka: The University Press Limited, 1989) at 37. 9 Nurul Islam Nazem and Muhammad Humayun Kabir, "Indo-Bangladesh Common River and the Water Diplomacy" (1991)12 BUSS Journal 263 at 263-292. 78 Bangladesh and 22 million in Nepal13 The population density of the Ganges is estimated at 375 persons per square kilometer,14 one of the highest in the world.
The Ganges receives a large volume of water from Nepal and China through tributaries - the Kosi, Gandaki, Kamala, Bagmati, Karnali and Mahakali (account for 45% of the Ganges flow). In addition, it is joined by number of other tributaries originating inside India such as the Yamuna, the Tons and the Gomti. Within India, the river is shared by the states of UP, Himachal Pradesh, Rajshtan, Haryana, Madhya Pradesh,
Bihar, West Bengal, and the Capital Territory- Delhi.15 It distributes water to large parts of the UP, Bihar, Assam, West Bengal and Bangladesh.16 About one-fourth of
The Ganges is one of the major rivers of the world It rises at an elevation of about 23000 feet in Gangotri on the southern slope of the Himalayan range This forms the northern boundary of the Ganges basin A number of tributaries originated from the Himalaya of China, Nepal and India join the Ganges from the left (north ), these include the Ramganga, Gomoti, Gandak,Karnah (Ghaghara), Kosi and Bagmati The Yamuna rising from the Himalaya near the head waters of the Ganges flows along a course roughly parallel to that of the Ganges join the Ganges from the right side (South ) below Allahbad The major tributaries of the Yamuna are the Chambal, Himadar, Betwa and the Ken All the tributaries joining the Ganges from its right except the head waters of the Yamuna, originating from the vmdhyas which with some high plateau comprise the southern boundary of the Ganges basm See B M Abbas A T The Ganges Water Dispute (Dhaka The University Press Limited, 1984) at 9-10 "ATM Shamsul Huda, "Constraints and Opportunities for Cooperation Towards Development of Water Resources" in Asit K Biswas & Juha I Uitto eds Sustainable Development of the Ganges-Brahmaputra- Meghna Basins ( New York United Nations University Press, 2001) at 46 12 Iswer R Onta, "Harnessing the Himalayan Waters of Nepal A Case for Partnership for the Ganges Basm" in Asit K Biswas & Juha I Uitto eds Sustainable Development of the Ganges-Brahmaputra- Meghna Basins ( New York United Nations University Press, 2001) at 100-103 x\lbid at 103 14 Salman M A Salman and Kishor Uprety, Conflict and Cooperation on South Asia s International Rivers, (London Kluwer Law International 2002) at 133 u,Ibid at 130 16Shamsul Huda, Supra notel2 at 40-41 79 Bangladesh's Gross domestic product (GDP) is the contribution of the Ganges basin area, while the agriculture contributes about one-third of the G.D.P. of Bangladesh.
Immediately after the independence of Bangladesh, both Bangladesh and India signed a 25 years long "Treaty of Friendship, Cooperation and Peace" on March 17,
1 8
1972, which was severely criticized for predominantly protecting Indian interests.
Article 6, of the treaty provided for expert level joint studies of flood control, river basin irrigation and other problems. On November 28, 1972, a Joint River Commission (JRC) was set up to maintain liaison between the two countries and to make a comprehensive study in the field of flood control, and irrigation for the benefit of the people of both countries.19 Interestingly the question of the apportionment of the Ganges water remained outside the purview of the JRC. However, during the Mujib regime (1972-1975), on April 18, 1975, a short term (ad-hoc) agreement was signed between Bangladesh and India which allocated 11,000- 16,000 cusecs of water for India from April 21 to May 31, 1975 (41 days) and ensured the remaining 44,000-49,000 cusecs of water for Bangladesh (Table 4, appendix).The purpose of the short term agreement was to run the feeder canal of the Farakka Barrage.
17 M Monirul Quader Mirza & Altaf Hossain, "Adverse Effects on Agriculture in the Ganges Basin in Bangladesh" in M. Monirul Quader Mirza ed. The Ganges Water diversion Environmental Effects and Implications (London: Kluwer Academic Publishers, 2004) at 177. 1 Moudud Ahmed, South Asia Crisis of Development (Dhaka: The University Press Limited, 2002) at 152- 157. 19Supra note 8 at 37.
20S«£>ranote 10 at 42.
80 71 Many Indians and Bangladeshis viewed the agreement with skepticism. The short-term agreement expired on May 31, 1975. After the expiration of the agreement, India unilaterally began to withdraw 40,000 cusecs of water at Farakka which was the full capacity of the feeder canal. India's withdrawal posed the threat of economic ruination to one third of Bangladesh.22 India argued that it had 98% of the catchment areas and 94.5% of the population was living in the area. Therefore, it had a legitimate right to utilize the water to its advantage.23 The Indian claim clearly contravenes international law which stipulates that a riparian state has a legal right to utilize the water of an international river in its territory only if it causes minor or no injury to a co-riparian country. The situation deteriorated drastically after the assassination of President Mujib through the coup d'etat of August 1975. In the dry months it continued to divert 40,000 cusecs of water at Farakka unilaterally. Some political analysts argued that India seemingly did it from political motives, because Mrs. Gandhi's administration did not like the new government of General Ziaur Rahman (Zia). That is why the Indian government used the Ganges water issue against the military government of Bangladesh and it considered the violent overthrow of the pro-Indian Mujib government as a manifestation of anti-Indian feelings in Bangladesh.
21 According to the Indian oppositions, the release of 11000 to 16000 cubic feet/sec of water in the lean season was nothing to meet the needs of the 40,000 cubic feet/sec to flush the heavily silted Hooghly On the other hand many Bangladeshis saw another pro-Indian act of the Mujib Government See, Ashok Swam, "Conflict over waters: The Ganges water Dispute" (1993) 24, Security Dialogue 429 at 431. 22 Zaglul Haider, "Crises of Regional Cooperation in South Asia" (2001) 32 Security Dialogue 423 at 425 23 Partha S. Ghosh, Cooperation and Conflict in South Asia (Dhaka The University Press limited, 1989) at 87. 24 Rafiqul Islam, "The Effects of the Farakka Barrage on Bangladesh and International Law" (1984) 5 BUSS Journal 249 at 253. 25 Zaglul Haider, The Changing Pattern of Bangladesh Foreign Policy A Comparative Study of the Mujib and Zia Regimes (Dhaka. The University press limited, 2006) at 46, With regard to the Indo-Bangladesh relations during the Mujib regime, Nicole Ball wrote "At the Government level relationship appeared very close The similarities between the Awarm League and the Congress Party, both in outlook and in 81 Given this situation, Bangladesh published a "White Paper" on Farakka, describing the importance of the Ganges river for its existence, while India published its own paper entitled "Indian Case on the Farakka barrage" explaining the relative dependence of India on the Ganges.26 Finding no other alternative to resolve the problem bilaterally, the Zia government decided to internationalize the issue and took it to the 31st session of the UNGA meeting. Bangladesh raised the issue in the "Special Political
Committee of the UNGA" in 1976 against India's serious opposition. Internationalization of the Farakka issue established and recognized the case of Bangladesh and put tremendous moral pressure and significant embarrassment on India and re-enforced it to negotiate the issue with Bangladesh bilaterally.
Meanwhile, with the defeat of Mrs. Gandhi in the election of 1977, and with the emergence of Morarji Desai (Desai) as the Prime Minister of India, the relationship between the Zia and the Desai governments improved progressively. In November 1977, an agreement was signed between the two countries for a period of five years on the apportionment of the Ganges water at Farakka and augmentation of its flows. According
composition, were of undeniable importance to the spirit of friendship, which existed between the two Governments At the same time, Mujib had no alternative to the establishment of good relations with India " See, Nicole Ball, Regional Conflict and the International System A Case Study of Bangladesh [1st series, number nine, ISIO monographs] (Institute for the Study of International Organization, University of Sussex, England, 1974) at 48 26 Bangladesh has argued that 37% of the total area of the country is served by the Ganges, and the one third of the population is dependent on the river While India has projected the relative dependence of India on the Ganges, stating that 90% of the river flows through India and more than 40% of its population are dependent on the Ganges See, Government of Bangladesh White Paper on Farakka Issue (Dhaka, September 1976), Government of India Ministry of external affairs, India's Case of Farakka Barrage (New Delhi, September 1976 ) cited in Salman M A Salman & Kishor Uprety, Conflict and Cooperation on south Asia's International Rivers (London, 2002) at 142-145 27 Moudud Ahmed, Supra note 18 at 164 82 to the agreement, out of total 55,000 cusecs of water at Farakka, Bangladesh got 34,500 cusecs and India got 20,500 cusecs during the leanest period (April 21-May 30). The allocation was fixed on the basis of flows reaching at Farakka based on 75 percent availability calculated from the recorded flows of the Ganges at Farakka from 1948 to
1973, (Table 5 appendix).
In addition to the 1977 agreement, both Bangladesh and India came up with a proposal for augmenting the Ganges flow during the dry season. Bangladesh proposed augmentation by building a series of storage and dams in Nepal, while India offered the link canal proposal, the 200-miles long canal connecting the Brahmaputra with the
Ganges. Bangladesh rejected the proposal as legally unjustifiable, technically impracticable and economically and ecologically disastrous.28 On the other hand, India rejected the Bangladesh proposal on the grounds that India strictly intended to keep the matter bilateral and Nepal's inclusion in the arrangement would ruin the bilateral principle of India.29
However, the agreement of the apportionment of the Ganges water expired in
November 1982. By this time, political change took place both in India and Bangladesh.
Mrs. Gandhi regained power in India through an interim electionin January 1980 and after the assassination of Zia, General H. M. Ershad (Gen. Ershad) took power by a military
^ Supra note 24 at 431. 29 Dilara Chowdhury, "India-Bangladesh Relations' From Euphoria to Pragmatism" Regional Studies (1989) 7 at 46. 83 coup in March 1982. Before the expiration of the 1977 agreement, General Ershad and
Mrs. Gandhi signed a Memorandum of Understanding (MOU) on October 7, 1982 for the sharing of the Ganges Water for the next 18 months instead of renewal of the 1977 agreement.30 The 18-month period was expired on 6 April 1984. In November 1985, a second MOU was signed for a period of three years.31 It ended in 1988, from then until 11
December 1996 there was no MOU or an agreement. During all these years India continued unilaterally withdrawing waters from the Ganges.
The 1996 Indo-Bangladesh Water Accord
Between 1988 and 1996, in the absence of any water sharing instrument, India re commenced its unilateral withdrawal of water, which caused an unprecedented reduction in the flow left for Bangladesh. Moreover, India further unilaterally operated the Luv- kush barrage (figure 3 : appendix) on the Ganges in Kanpur, UP in 1995 in order to meet the water needs of the Kanpur city. Through the 621 meter long Luv-kush barrage India commenced diverting 200 million liters of water per day (mid), and 1600 mid will be withdrawn by the 2031. The progressive utilization of waters upstream in India, coupled with the massive unilateral withdrawal at the Farakka barrage contributed to the lowest recorded flow at the Hardinge point, Bangladesh. It was 13,521 cusecs in 1992,
™ Supra note 28 at 43-48. 31 Ibid. The ultimate aim of the barrage is to develop the Gangotri township project on the 16,000 ha land , on both sides of the barrage. See online:
84 compared with historical average flows of 75,000 cusecs during the last-ten day period of
March.33 Despite considerable diplomatic efforts, including summit diplomacy between
Bangladesh and Indian Governments in 1992 and 1993, Prime Minister Khaleda Zia was unsuccessful in securing an agreement. However, the Awami League's return to power in Bangladesh in 1996 with Sheikh Hasina as Prime Minister, and the emergence of the coalition government led by HD Deve Gowda in India, both Prime Ministers signed a thirty year long agreement on 12 December 1996. This agreement is based on the following formula: if the flow of water at Farakka is 70,000 cusecs or less, India and
Bangladesh will divide it equally between them, but if the flow is 70,000-75,000 cusecs,
Bangladesh will receive 35,000 and the rest will be diverted to India. If the availability is
75,000 cusecs or more, India will receive 40,000 and Bangladesh will receive the remainder of the flow (Table 6 & 7, Appendix).35
Principles of the Accord of 1996
The 1996 Indo-Bangladesh water accord is based on the principle of reasonable and equitable sharing of water and the river basin approach. The 1996 treaty adopts article IV of the Helsinki Rules, "each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin." In fact, article IX and X of the treaty adopt the principles of equitable
33 A. Nishat and M.F.K. Pasha, Supra note 4. 34 Ishtiaq Hossain, "Bangladesh-India Relations: The Ganges Water -Sharing Treaty and Beyond" (1998) 25 Asian Affairs 131 at 139-140. 35 Supra note 25 at 427; The Daily Ittefaq [Bangladesh] 13 December 1996. 85 utilization and an obligation to cause no harm. The treaty is guided by the principles of equity, fairness and no harm to the other party.37
Evaluation of the Two Treaties
Different critics and scholars argue that the 1996 agreement is based on the flow average from 1949 to 1988, but the real flow at Farakka in the 1990's was much lower on account of unusual drought conditions. In order to make the agreement possible the two countries inflated the figure for available water at Farakka.38 Salman argues that the 1977
Indo-Bangladesh Ganges Water Agreement and the 1982 and 1985 MOU's established the flows at Farakka based on 75% availability of the average flow of the Ganges from observed data for 25 years covering the period 1948-1973. The 1996 treaty shows the flow at Farakka based on the 100% availability of the average flow of the Ganges for 40 years covering the period 1949-1988. This is a major departure from the previous agreements and from the established practice in this part of the world when usually less than 100% availability of the average flow is shared to avoid negative surprises.
Moudud Ahmed who was the co-chairman of the Indo-Bangladesh Joint River
Article IX states. "Guided by the principles of equity, fairness and no harm to either party, both the Governments agree to conclude water sharing Treaties/Agreements with regard to other common rivers." Article X states: "The sharing arrangements under this treaty shall be reviewed by the two Governments at five years interval or earlier as required by either party and needed adjustments based on principles of equity, fairness and no harm to either party made thereto if necessary...." See M. Momrul Qader Mirza ed The Ganges Water Diversion Environmental Effects and Implications (London: Kluwer academic Publishers, 2004) at 348 37 Supra note 4 38 Joel McGregor, "The Internationalization of Disputes Over W The Case of Bangladesh and India" (Paper presented to Australian Political Science Association Conference ANU, Canberra, 3-6 October 2000) [Unpublished]. 39 Supra note 14 at 174. 86 Commission points out that in every negotiation since 1981, India produced the data that in the lean period, the amount of water available at Farakka has never been more than 55
000 cusecs, but now after so many years, it reproduced 74,419 cusecs during 1-10 March and 73,590 cusecs during 11-20 May, which are inflated amounts.40 Jyoti Bsu, the Chief
Minister of West Bengal expressed his concern that the treaty would not work because of the shortage of water.41
Under the indicative schedule of the 1996 treaty, India's total share during the lean season (Jan 1 to May 31) amount to about 48% of the total available water and the share of Bangladesh represents 52%. Compared to the 1977 Indo-Bangladesh accord,
Bangladesh received a 7% reduced share from 59% in 1977 to 52 % in 1996.42 Indeed, the dry season availability of water at Farakka has reduced due to the increased upstream uses for agriculture and other purposes. Therefore, the availability of water as shown in the treaty, based on the average flow of 1949-1988, will never occur and if more water is withdrawn at the upstream, Bangladesh will face a greater risk than India.43
Another important argument what scholars often make is that the accord lacks any provision for international arbitration. On the contrary, the Indus Water Accord and the recently concluded the MahaKali Accord have specific provisions for international
4U Supra note 18 at 174. 41 Cited mlbid at 177. 42 Supra note 49 at 174; Muhammad Mizanur Rahman, "The Ganges Water Conflict' A comparative analysis of 1977 Agreement and 1996 Treaty" (2004) 1 astenskos 195 at 204. 43 M. Moniru Qader Mirza, "The Ganges water -Sharing Treaty: Risk Analysis of the Negotiated Discharge" (2002) 2 International Journal of Water 57 at 57-7'4. 87 arbitration, in case if any of the parties do not behave according to the treaty. The 1996 treaty does not leave any room for a third party settlement, such as fact-finding, mediation or arbitration. It is guided by the traditional Indian policy of bilateralism with small neighbors, which always benefit India. The Bangladesh Nationalist Party (BNP) criticized the treaty as it was unequal and accused the government of accepting it under duress.45
Professor Mian, a known water expert of Bangladesh claims that the treaty was a
"cleverly devised mechanism to bleed Bangladesh."46 Professor Muni understands that
India agreed to sign the treaty, because it was done the way that India wanted.47
A major difference between the 1977 and the 1996 treaties is that the latter treaty does not provide any minimum guaranteed flow for downstream Bangladesh, if the flow at Farakka reduces substantially, while the former agreement guaranteed 80% of the available flow of water at Farakka for Bangladesh.49 As a sequel, due to upstream
Article 11 of the Mahakh treaty states- " a dispute shall be deemed to have been arisen which shall then be submitted to arbitration for decision in so doing either party shall give three months prior notice to the party " For an excellent analysis see, Salman M A Salman & Kishor Uprety, Conflict and Cooperation on south Asia's International Rivers (London Kluwer international, 2002) at 372 45 "Press Conference of the BNP Secretary-General, Abdul Mannan Bhuyan" The Daily JanaKantha (December 15, 1996) 46 Mohammad Momruzzaman Mian, "Water Treaty without Water" (1997) 1 The Envoy at 21 Cited m Supra note 20 at 176 47Based on my conversation with Professor S D Mum of Jawaharlal University at a Workshop entitled "Sources of Conflict in South Asia Ethnicity, Refugees and Environment" held at Kandy, Sn Lanka" (Organized by the Regional Centre for Strategic Studies from March 6-16, 1997) [Unpublished] 48 Article 11 (n) states "every effort would be made by the upper riparian to protect flows of water at Farakkah as in the 40 years average availability as mentioned above " However, the treaty does not define every effort This means that it does not guarantee anything to the down stream country See Mizanur Rahman Supra note 56 at 205 49Article II(n) states if during a particular 10 day period the Ganges flow at Farakka comedown to such a level that the share of Bangladesh is lower than 80 percent of the Value shown the release of waters to Bangladesh during that 10 day period shall not fall below 80 percent of the value shown " see the Text Of 1977 Indo-Bangladesh water accord, Supra note 11 at 95 88 abstraction, if the flow reduces substantially at Farakka, India does not have any obligation to protect the flow. In the absence of any obligation to control the withdrawal of the Ganges flow at the upstream and lack of minimum guaranteed flow for
Bangladesh, the 1996 water sharing treaty became very much dependent on the will of the upstream users. Apart from this, the increasing flow of the Ganges is the only long-term solution, but the 1996 treaty did not incorporate any proposal or guideline for the augmentation of the flow of water in the dry season.5
Implementation of the Water Accord
Unfortunately, the events following the agreement indicate that it is not being implemented properly. Media reports show that according to the terms of the treaty, during the first and second ten day periods of March 1997, Bangladesh should have received 35,000 cusecs of water, but actually received only 21,000. In the final 11 days of that month Bangladesh should have received 29,688 cusecs of water, but actually received a maximum of 25,088 cusecs on March 23 and a minimum of 6,457 cusecs on
March 27. Similarly during the first 10 days of April 1997, while Bangladesh should have received 35,000 cusecs under the accord, it actually secured only 17,857. Although
Bangladesh obtained its due share, 24,559 cusecs during the second ten-day period of
, Supra note 48. 89 April 1997, it received only 27,695 of the 35,000 cusecs of water, to which it was entitled during the last ten-day period of that month.51
A water resource expert and a former member of the Indo-Bangladesh Joint River
Commission, Ainun Nishat conceded that in the first year of operation of the agreement, the flow available for distribution was very low which created doubt about the sincerity of
CO the upper riparian in keeping its commitment. A study shows that (Table 8 appendix) in
1997 in the phase-I (1-10) and the phase II (11-20) of January, the phase-I (1-10) of April and the phases-I, (1-10), 2, (11-20) and 3 (21-31) of May, in the most crucial periods of the dry season, total flows released to Bangladesh were less than the amount allocated in the treaty. On the other hand, total flows released to Bangladesh from January 1 to May
31 exceeded by 5712 cusecs.53 This excess amount of water does not necessarily compensate the loss occurred due to the release of the reduced amount of water, when
Bangladesh needed water badly. The same situation occurred in 1998 when Bangladesh received less quantity of water than that of the amount indicated in the treaty in the first
(1-10) and second (11-20) phases of January, third phase (21-28) of February, first phase of March (1-10), third phase of April (21-30) and third phase (21-31) of May54 (Table 8,
51 Amzad Hossain Khan, "Ganges Water Treaty: Analysis of First Year Implementation" The Daily Star (28 May 1997). 52 Water Resource expert Ainun Nishat's interview with Dainik Sangbad, (5 April 1997), Ainun Nishat, "Development and Management of Water Resources in Bangladesh: Post-1996 Treaty Opportunities" in Asit K. Biswas and Juha I. Uitto, eds Sustainable Development of the Ganges,Brahmaputra-Meghna Basins (New York: United Nation's University Press, 2001) 80 at 85. Supra note 4. 54 Ibid 90 Appendix). Tauhidul Anwar Khan, a long-serving executive member of the Joint Rivers
Commission clearly states:
The 1996 treaty over sharing the Ganges water signed on December 12, became operational since January 1, 1997. In the very first year of 1997, Bangladesh did not receive its due share as per the treaty. Then there have been occasions in other years, the country did not receive its due share and continuous deprivations took place in 2001, 2003, 2005, 2006, 2007, 2008 and even 2009.55
Of the fifteen 10 day periods in 2009, India has deprived Bangladesh from its due share in at least 11 phases (Table 9, Appendix). Even in the first six phases of water sharing (January-February) in 2010, Bangladesh did not get its equitable share according to the indicative schedule of the treaty. In the first six phases of water sharing, the amount allocated for Bangladesh was 2,93,621 cusecs, but it actually received 2,10,607 cusecs of water. This means, Bangladesh is denied of 83,014 cusecs of water in the first six phases of January and February 2010.
A serious problem for the implementation of the 1996 Water Accord is the institutional weakness.57 Although the Indo-Bangladesh Joint River Commission (JRC) was formed just after one year of the independence of Bangladesh, it was too weak to implement the accord like the Permanent Indus Commission (PIC), an institution
Quoted in Sadeq Khan, "Indian Open Diplomacy Turns Sour Over Tipaimukh" Holiday [Dhaka] (June 26, 2009).
56Ihas Khan, "Choy Kistir Aktitao Pam Painy Bangladesh" [Bangladesh did not get water in any of the six phases], Daily Amardesh (5th March 2010) In the Comparison between the Indus Water Accord 1960 and the Indo-Bangladesh Water Accord 1996, I will focus on the weakness of JRC 91 established to manage the Indus River .The commissioners of the PIC were empowered to
communicate directly and hold regular meetings for maintaining standard and regular
CO
functioning of the institution.
In the case of the 1996 Indo-Bangladesh Water Accord, where there is a chance of
victimizing the weak state by the strong one, the ability of the JRC to monitor is required
to prevent cheating. Monitoring gives power to the members to travel the entire river
system and collect information on member states' activities along the common
hydrological system. Monitoring also allows members "to collect information on the
intentions, preferences and actions of the riparian neighbors in developing the shared
river system,"59 which is absent in the JRC. In order to implement the 1996 Indo-
Bangladesh Water sharing Accord, effective institutional mechanism is essential, but does
not exist in the case of the JRC. Integrated river basin planning can provide the necessary
water management structure to augment the flow of water for meeting the dry season
needs and the storage of water for flood moderation during the monsoon.60 Effective
institutional capacity of the JRC can play an important role in the integrated basin
development plan, beneficial for all basin states.
Neda A Zawhan, "India ,Pakistan and Cooperation along the Indus River System" Water Policy 11(2009) 1 at 1. 59 Ibid at 8 60 ATM Shamsul Huda, " Integrated Water Resources Management in Bangladesh: An assessment" in Asit K. Biswas, Olli Vans, & Cecilia Tortajada eds. Integrated water Resource Management in South and South-East Asia,(Oxfoi& Oxford University Press,2005)105 at 127-128 92 To maintain cooperation, an institution needs mechanisms to manage disputes, otherwise bilateral relations may deteriorate. The JRC could not emerge as an effective institution in the absence of the powers required to implement the Indo-Bangladesh Water
Accord. Similarly, the Mekong River Commission (MRC) is one of the most powerful international organizations in the region. The MRC is based on the Mekong Agreement of
1995.62 It provides technical, as well as institutional capacities required for long term cooperation, to manage the water and ecological sources of the basin in a sustainable way.
Its basin development plan aims at attaining sustainable development of waters and related resources of the basin for the common interest of the riparian countries and the people living in the Mekong River Basin.63
From the above examples, we learn the lesson that without effective institution the weaker position of the existing JRC is not competent to implement any accord for the equitable distribution of the transboundary water and environmental resources between
India and Bangladesh. Only a strong institution having sufficient executive power for cooperation, monitoring and dispute resolution, like the PIC, can be instrumental to execute such accord. The JRC also needs to be strengthened with the network of capable
61 Ibid. at. 8. 62 The four states of the lower basm(Lao Peoples Democratic Republic, Thailand, Cambodiaand Vietnam ) signed the Mekong Agreement The Upper basm states China and Myanmar are not parties to the treaty. See, Supra note 7 at 285-86. 63 Juha Sarkkula et al. " Mathematical Modelling in Integrated Management of Water Resources" in Luis lebel et al. eds. Democratizing Water Governance in the Mekong, ( Bangkok: Mekong Press 2007) 127 at 140-43. 93 institutions and significant analytical capacities. For institutional capacity building ,
combining engineers' knowledge with the knowledge of economists, political scientists,
environmentalists and legal experts is a critical need. In the absence of institutional
structure and capacity for effective water resource management, the JRC is unable to
implement the Ganges Water Accord effectively.
In the final analysis, it is discernible that the 1996 Ganges Water Sharing Treaty
has never been implemented properly for a number of reasons; first, Indian upstream withdrawal of water, secondly, the non-availability of the inflated amount of water in the
Ganges as shown in the treaty and finally because of the weak institutional mechanisms
the for dispute resolution. It is understandable that the governments of India and
Bangladesh signed the treaty as a political ploy. By signing the treaty, India tried to
remove the anti-Indian feelings from Bangladeshi minds and enjoy other benefits from
Bangladesh, while the then Bangladesh Prime Minister, Sheikh Hasina publicized the
treaty as her foreign policy success against the failure of her predecessor, Khaleda Zia to
conclude a treaty with India.
The Indus Waters Treaty 1960 and the 1996 Ganges Water Sharing Treaty:
A Brief Comparison
Rafik Hirjl and David Grey, " Managing International Waters in Africa: Process and Progress" in International Watercourses Enhancing Cooperation and Managing Conflict[World Bank Technical Paper No 414] eds. Salman M.A. Salman , laurene Boisson de Chazournes,( Washington D.C.: The World Bank,1998)77at89-90. 94 A comparison between the Indus and the Ganges Water Treaties will give us an impression about the reasons why did the former one work and the latter one did not work.
The Indus Water Treaty of 1960 is one of the success stories of the dispute resolution over transboundary water resources in the world. The World Bank volunteered to act as a go between. 5 The World Bank's mediation made the treaty possible. The treaty was signed not only by India, and Pakistan, but the World Bank was also a signatory as a third- party. The third- party mediation did not only make the treaty plausible but also made its implementation possible. Here the third- party is the witness.
No party can cheat the other. On the other hand, the 1996 Ganges Water Sharing Treaty is a bilateral instrument which is signed by India and the Pro-Indian Hasina Government in
Bangladesh. As a consequence the the dominance of India in the treaty was prominent.
Given the political, economic and defense capacities of India the treaty is being unilaterally exploited by India and virtually the treaty is proved unequal. In the case of the
G T Keith Pitman, The Role of the world Bank m Enhancing Cooperation and Resolving Conflict on International Watercourses The Case of the Indus Basm," in International Water Courses Enhancing Cooperation and Managing Conflict , eds Salman M A Salman &Laurence Boisson de Chazournes [World Bank Technical Paper No 414](The World Bank Washington D C 1998)155 at 155
66 In 1951,David Lilenthal,former Chairman of the Tennessee Valley Authority and a former Chairman of the Atomic Energy Commission ,U S A wrote an article in the influential Coller 's magazine entitled "Another Korea in the Making" where he suggested "Worl,d Bank might use its good offices to bring the parties to agreement and help in the financing of an Indus Development Program" Inspired by this idea Eugene R Black then President of the World Bank proposed the idea of its mediation to both India and Pakistan Both Parties accepted this mediation See, Undala Z Alam(University of Durham) " Water Rationality Mediating the Indus Water Treaty", Online
implementation of the treaty difficult.
The objective of the Indus Water treaty was to negotiate the equitable allocation
on the flow of the Indus River and its tributaries between the riparian states. Relying on
this goal three Western rivers of the Indus basin namely Ravi, Sutelji and Beas were
given to India, subject to conditions that during a transition period of ten years, India
would supply a certain amount of water to Pakistan, while Pakistan would commence its
construction works necessary on the Western rivers to replace its Eastern rivers
resources. 7 The three Western rivers of the Indus basin, namely the Indus, Jhelum, and
Chenab were given to Pakistan. This was subject to the right of India to use some of the
water for irrigation, power generation, and other designated purposes before the rivers
cross into Pakistan. In order to ensure unrestricted flow of waters for both India and
Pakistan safeguards were incorporated in the treaty.
By contrast, although there are clear cut formula regarding the apportionment of
the Ganges water,69 Bangladesh is continuously being denied from its due share first, for
the lack of guarantee clause or 'safeguards' in the agreement; secondly, the Indian
military supremacy in the region and; thirdly, absence of a mediator between Bangladesh
and India to look after the interest of both countries. While Pakistan's interest is protected in the Indus Water Treaty 1960 by appropriate safeguards, acceptable mediator
67 Article II of the Treaty; See, Supra note Mat 49. 68 See, Article III,( Provisions Regarding Western Rivers & Article IV, Provisions regarding Eastern Rivers and Western Rivers ) The Indus Water Treaty I960 See Article 1 & II of the 1996 Ganges Water sharing Treaty. 96 and a strong defense capacity. Despite Indian superior military strength Pakistan's nuclear capacity deterred India from manipulating the Indus treaty .
As a mediator, the World Bank arranged the fund for the development of the
Indus basin. Both bilateral and multilateral donors contributed to this fund. Immediately after the treaty an Indus Basin Development Fund was established with contributions from Australia, Canada, Germany, New Zealand, the UK and Pakistan. The Treaty was successful partly because of the augmentation of the available flow of water by the construction works and partly participation of many other countries to fund those works.70 In the Case of the Ganges basin despite having the interest of the World Bank to broker the settlement of the dispute, Indian policy of bilateralism discourages the third party involvement'.
The important thing is that the augmentation of the Ganges flow is a pre-condition for the apportionment of the Ganges water suiting with the needs of the riparian countries.
For such an augmentation the Ganges basin development is a necessary condition which involves huge financing which is impossible without third party's involvement that
India ignores. Indian policy of 'no third party intervention' is a major impediment for under taking any Ganges basin development plan despite having enormous interests of the
71 bilateral and multilateral donors in such a project.
/u Supra note 7 at 291. 71 M Rafiqul Islam, "The Ganges Water dispute: An Appraisal of a Third Party Settlement^ 1987)27 Asian Survey 918 at 932-33., 97 A permanent Indus commission (PIC) consisting of two commissioners (one appointed by India and another by Pakistan) was constituted in order to ensure the cooperative management for the implementation of the treaty.72 The PIC has been acting as a regular channel of communications between the riparian states and it bears the responsibility for furnishing and exchanging all information. Apart from meeting the commissioners, the PIC communicates directly through telephone, fax, radio and telegram. This provision for direct communication makes the Indus Treaty effective.
While the JRC is constituted of one chairman and three members,73 although there is aprovision of JRC meetings 4 times a year,74 practically very seldom it happens. As a consequence the JRC as an institution turns into a dysfunctional organization. Prominent water resource expert BM Abbas viewed that the scope of the JRC was very limited and it ultimately became an "intergovernmental coordinating body only"75.
The most important reason behind the success of the Indus water accord is the institutional mechanisms for dispute resolution within the treaty. When the commission fails to solve a problem several available conflict management procedures are followed.
First, the issue is sent to the member states' foreign secretaries for bilateral negotiations. During such negotiation the Indus commissioners assist the respective
11 Article VIII of the Indus Water Treaty 1960. 73 Neda A. Zawahri Supra note ... at 9. 4 Article 6 chapter- v, states:"the ordinary sessions of the Commission shall be held as often as necessary generally four times a year. In addition special meetings may be convened any time at the request of either Government". SeeArticle 6 Statute of the Indo-Bangladesh Joint Commission. 75 BM Abbas Supra note 10 at 135. 98 foreign secretaries for bilateral negotiations Once resolved, the agreement is sent to the
PIC for implementation If not resolved, the second dispute settlement is to appoint a neutral expert77 The third method of dispute resolution is to appoint a Court of
Arbitration consisting of seven judges78 Until today, most of the disputes have been resolved within PIC Only one issue was resolved at the foreign secretary level and another one was settled by a neutral expert 79
In contrast, in the Ganges Water Accord there is no m-built institutional arrangement for dispute resolution It suggests a joint committee consisting of equal number of members from the both countries shall deal with any dispute and the dispute shall be referred to the JRC if the joint committee fails to resolve the dispute At the JRC if the dispute remains unresolved it will go to the two Governments who will ultimately resolve the dispute Here the problem is that the joint committee does not have any institutional support Even the involvement of the JRCwith the dispute is meager
Ultimate settlement depends on the two governments This makes the government over burdened At the government level such settlement depends on good neighborhness and power equilibrium Given the uneven power balance and political hostilities between
76 Article VIII of the Indus Water Treaty 1960
77 Article IX of the Indus Water Treaty 1960 78 Two members from each party and three including the chairman from a panel to be chosen by the two Governmments If no consensus on names can be arrived at IWT has given a list of persons from whom to choose such as the Secretary-General of the UN, or International Bank of Reconstruction and Development (IBRD) for the chairmanship and the President of M I T , Cambridge, the Rector of the Imperial College .London, the Chief Justice of the U S A or the Lord Chief Justice of England for Panel membership See, Subrahmanyam Sndhar, " The Indus Water Treaty" Security Research Review (2004)latl0 Online
Finally the Indus water Accord was the outcome of the balance of interest between India and Pakistan. It was a win-win formula. It benefited both parties tremendously. In this treaty the World Bank was the balancer. On the contrary, in the
Ganges Water Sharing Treaty the balance of interest is tilted towards India. As a consequence it turns into a zero-sum game where Bangladesh is a looser and evidently
India is a gainer. Absence of a third party like the World Bank causes disequilibrium and makes the 1996 Ganges water sharing Treaty almost ineffective.
Impact of the Farakka Barrage on Bangladesh
The commissioning of the Farakka barrage and the withdrawal of water at the upstream by India have a colossal impact on the environment and the economy which pose a security threat to Bangladesh.
Environment: The withdrawal of water at Farakka has initiated a process of environmental degradation. This process includes the weakening of resilience of the agro- ecological system and the reduction of the biological potential of the system. A list of such environmental consequences is given below:
Siltation: Each year approximately 2.5 million imperial tons of sediments are carried by the Ganges and transported to the Bay of Bengal. A portion of this sediment load is deposited on the flood plains during the monsoon, which changes the topography and 100 drainage conditions in Bangladesh. The continuous siltation has reduced the efficiency of the Mongla Port. It has further affected the navigability of the Ganges, the Gorai, the
on Modumati and the Passur rivers, which suffer from reduced flow and siltation.
A total of 685 km of waterways which were navigable during the pre- Farakka period have been adversely affected by the water diversion at Farakka. The confluence of the Ganges and the Brahmaputra was affected by shoals, and engendered obstruction to the ferries of the Bangladesh Inland Water Transport Authority (BIWTA). Studies done by the BIWTA in the 1970's indicate that the inland waterway transportation in southwest Bangladesh was reduced by 11 million tons because of the adverse effects of the slashed flow. What makes the matter worse is that the total water ways available for machinery propelled vessels has shrunk from 25,000 km. to 5,000 km. since the launching of the Farakka barrage.
Floods and river-bank erosion: The diversion of silt free water from the Ganges into the
Hoogly means the passage of more silt into the Ganges in Bangladesh and a corresponding rise in the river bed. The reduced flow has caused huge shoal formations in the river bed and has increased flood hazards in the monsoon. Abrupt changes in discharges, water level and sediment have resulted in hydraulic, hydrological and
80 Supra note 12 at 48. 81 Nishat, Supra note 52 at 89. 82 M.G Rahman "Reducing the Flow of the Ganges: The Consequences for Agriculture in Bangladesh" in E Goldsmith & N. Hildyard eds. The Social and Environmental Effects of large Dams, (London: Camelford, Wade bridge) 1984 at 273. 83 Ashok Swam, Supra note 24 at 433. 101 morphological imbalances. One study shows that because of excessive floods, the
Ganges eroded about 5.5 km. on its right bank, southeast of Sirajganj between 1956 and
1975. Altogether, the Ganges in Bangladesh eroded 94.4 km. of its bank at 30 locations.85
Worst floods of 1987, 1988 and 1998 engulfed 70 percent of Bangladesh.86
Salinity: The most devastating effect of the diversion of water at Farakka is salinity,
caused by the reduction in the Ganges flow. During the post-Farakka period, salinity in
the southwest region of Bangladesh increased noticeably. The highest ever salinity for
February, March and April was recorded in 1992, when the flow in the Gorai River was
zero. The April salinity rose to 29500pmho/cm. which is 1800% higher than the pre-
Farakka average. The unique Sundarbans mangrove forest started to decay because of
increased salinity. Historically, the Sunderbans have evolved under reduced salinity that received a large amount of fresh water from the Ganges during the pre- Farakka period.
Due to the withdrawal of fresh water at the upstream during the post-Farakka period, the
excessive salinity caused degradation of the mangrove alarmingly.88
Sw/?ranote24at251 85 Nahid islam, The regime of the International Watercourses and Transboundary Management of the Ganges river Basin ( LLM thesis, Dalhousie University, Halifax, Canada 1993) [Unpublished] M Monirul Qader Mirza, " Three Recent extreme Floods in Bangladesh An Analysis" in M Monirul Qader MirzaAjaya Dixit and Amun Nishat eds Flood Problem and Management in South Asia (London Kluwer Academic Publishers,2003) 35 at 36 87 M Monirul Qader Mirza, "Diversion of the Ganges Water at Farakka and its Effects on Salinity in Bangladesh" (1998) 22, Environmental Management 711 at 717 88 Ansarul Kanm, "Implications on Ecosystem in Bangladesh" in Monirul Qader Mirza ed The Ganges Water Diversion Environmental Effects and Implications (London, 2004) at 127-128 102 Reduction of forest is considered as a major greenhouse contributor leading to the development of climate change.89 This has further impacts on the economy, health, migration, livelihood and it ultimately poses a threat to international peace and security.
Climate change affects the biodiversity perilously. As a consequence, many wild animals and birds migrate to suitable places to avoid extinction.91 An important example of migration is the Royal Bengal Tigers of the Sunderbans, who are migrating towards the
Indian part of the forest. In the aftermath of climate change, most recently the cyclonic storm, Sidr and Hurricane Aila, affected Bangladesh in 2007 and 2009, respectively.
Both Sidr and Hurricane Aila killed several thousands of people, dislocated millions, and periled the flora and fauna of southwestern districts of Bangladesh alarmingly (figures 9-
10: appendix).92
European Commission explains: "The atmosphere contains water vapour, carbon dioxide and other naturally occurring gases that let m sunlight but absorb the heat that is radiated back off the Earth. This natural process called the green house effect keeps the Earth's temperature at a level that supports life. Without it the global average temperature would be an unbearable -18c.However, human activities such as the burning of fossil fuels and the destruction of forests to make farmland are increasing the levels of carbon dioxide and other heat trapping gases in the atmosphere. These additional green house gases are enhancing the natural green house effects, making the Earth warmer and changing the climate." See Combating Climate Change The EU leads the Way (European Commission Directorate —General for Communication, 2008) at 4. 90 Samudu Atapattu, "Climate Change, Differentiated Responsibilities and State Responsibility: Devising Novel Legal Strategies for Damage Caused by Climate Change" in Benjamin J. Richardson et al eds. Climate Law and Developing Countries : Legal and Policy Challenges for the World Economy (Northampton MA : Edward Elgar, 2009) 37 at 37. 91Saja Erens, Jonathan Verschuuren & Kees Bastmeijer, "Adaptation of Climate Change to Save Biodiversity: Lessons Learned from African and European Experiences" in Benjamin J. Richardson et al. eds. Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (Northampton MA: Edward Elgar2009) 206 at 206-210. 92Cylone Sidr occurred on 15th May 2007 which reportedly killed 2300 people, 242,000 livestock's, damaged 23,000 acres of crops and 4.5 million people were dislocated. See The Daily star [Bangladesh] (19th May 2007). The Hurricane Ada hit Bangladesh on May 25, 2009 which killed around 200 people andl00,000 livestock's and made 4 million people homeless in the coastal districts of Bangladesh. See New Age [Bangladesh] (25th May, 2010). 103 Desertification: The withdrawal of water at Farakka engenders drastic reduction of the
Ganges water which has contributed to ruin the entire geo-morphological balance of the region. Surface water bodies (rivers, ponds, tanks and all other water bodies that abound flood plains) have been drying up and the ground water level is falling. About one third of the country, much of which represents very active parts of the delta, becomes unnaturally
AT arid. Upstream withdrawal and the shortage of water flow have increased the soil salinity by 40% in the 21 districts dependent on the Ganges. Desertification has reduced the area of farmland and the volume of food production in the greater Rajshahi, Pabna,
Kushtia, Faridpur, Jessore, Khulna and Barisal districts.
Arsenic contamination and other health hazards: Recently arsenic contamination in ground water appears much more than the tolerable level of the WHO's standard
(0.01mg/l) has been detected. Rajshahi, Jessore, Meherpur, Kushtia, Khulna, Bagerhat and Faridpur have been identified as highly affected districts. The withdrawal of water at Farakka and the fall in the ground water levels are producing arsenic contaminated water, which pose a serious threat to the public health in Bangladesh. The salinity in drinking water has exceeded the acceptable level to 960 pmho/cm and caused diarrhea,
Supra, note 24 at 249-273. Ibid. Supra note 12 at 49.
104 cholera and other water based diseases. In effect, the fundamental human right 'access to fresh water'97 has been seriously jeopardized.
Impact on the Economy
The combined environmental effects of the Farakka barrage have posed a serious economic threat to Bangladesh. Agriculture, industry, navigation, fisheries, and forestry are the main economic sectors that have been directly affected by water diversion and pollution. Despite India's possession of 79% catchment area of the Ganges basin,
Bangladesh is relatively much more dependent on the Ganges (Table: 10 appendix).
Agricultural Production: Bangladesh is primarily dependent on the Ganges dry season flow for irrigation. A shortage of water causes delays in planting crops, decreases fields, shortens the growing season and affects the productivity of subsequent crops. The government of Bangladesh claims that of the total cropped area of 6.85 million acres, 1.5 million acres are partially or fully affected by the Farakka withdrawal. This constitutes
22.92%) of the total net cropped area.98 Moreover, it has affected approximately 33% of the irrigation facilities. Agriculture is further affected by floods and droughts originated
)b Supra note 87 at 720-121 97 UN human rights bodies have repeatedly endorsed the right to water and access to water as fundamental rights, essential for human life and dignity. See, Alix Gowlland Gualtien, "International Human Rights Aspects of Water Law Reforms" in Philippe Cullet et al. eds. Water Law for the Twenty-First Century National and International Aspects of water Law Reform in India (London: Rutledge 2010) 237 at 241-42 98 Nahid Islam, "Indo-Bangladesh Common Rivers The Impact on Bangladesh" (1992)/ Contemporary South Asia 203 at 219. 105 out of the Farakka barrage. In the Ganges dependent areas, about 240,929 hectares of land have been affected by floods in 1988. "
The Ganges-Kobadak project (G.K),100 one of the country's largest surface water projects based on the Ganges water, is seriously affected by the Farakka barrage. The pumps in the G. k project do not work if the water level in the intake channel goes below
4.50 m.101 In the aftermath of the of upstream withdrawal, the changed river condition has also decreased irrigation and rendered the pumps inoperative in every dry season. The
G.K irrigation project, the largest in Bangladesh, is designed to pump water from the
Ganges to feed the main and subsidiary canals. The main pumps faced operational difficulties due to increase in slits. As a result, the project failed to irrigate even half of the areas planned for irrigation in the 1980's and finally it was closed. Diminished water levels have given rise to another acute problem of lowering the underground water level in the lean months which puts innumerable irrigation tube wells, hand tube wells, shallow and deep tube wells out of order.102 Indeed, withdrawal of water at the upstream engenders reduced irrigation, delayed planting, siltation and salinity that ultimately lead to a loss of production.
w Ibid at 208 100Located at the right bank of the Gorai river, the G-K Project covers 197,500 ha of cultivable land in the Southwest region of Bangladesh Irrigable land of the project occupies 142000 ha The project includes 13 Upa-zilas of Kushtia, Chaudanga, Jhenaidah and Magura districts with a total population of approximately 2 million See M Monirul Qader Mirza & Md Altaf Hossain, "Adverse Effects on Agriculture in the Ganges Basin in Bangladesh" in Monirul Qader Mirza ed The Ganges Water Diversion Environmental Effects and Implications (London Kluwer Academic Publisher, 2004) 177 at 177 m Ibid at 179 102 Supra note 24 at 251-252 106 Fisheries: Water bodies in this region provide habitats for 109 different known species of
1 07 fish Of these, 20 have already endangered The fisheries sector, which is of major importance to the Bangladesh economy, has been seriously affected by the hydrological, hydro biological and ecological changes caused by the Farakka diversion With the withdrawal of water at the up streams, low water levels m the Ganges and its distributaries have curtailed the landing of fish The disturbances of historic and traditional food chains caused by the physical, chemical and biological changes of rivers and the inability of fish to tolerate shallow depth and unprecedented salinity also contributed to the gradual extinction of fishes
Reduced fish catch in the Ganges and its distributaries have affected the livelihood of millions of fisherman, supply of cheap animal protein and earning of foreign exchange
One study of the ESCAP (Economic and Social Commission for Asia and Pacific) indicates that after the operation of the Farakka barrage in India, fish landing (especially the Hilsha) in the upstream has reduced to more than 90% 104 From 1976-1993 the consolidated financial losses of Bangladesh due to the Farakka withdrawal reached at
113,240 million taka which is nearly 3 billion US dollars105 (Table 11, appendix)
Flora and Fauna: The Sunderbans are the biggest reserve forests of Bangladesh as well as the world heritage site of the UNESCO These forests have significant contributions to
Nazrul Islam, "Notes on Farakka The problem of water Sharing Between India and Bangladesh" (1997) The Journal of Social Studies 1 at 4-5 104 ESCAP, St/ESCAP/618, Cited in Supra note 75 at209 105 Ashok Swain, "Displacing the Conflict Environmental Destruction in Bangladesh and Ethnic Conflict in India" (1996) 33 Journal of Peace Research 189 at 193 107 the economy of the nation. They provide half of the country's forest products and some important inshore fisheries and serving as the critical wild life sanctuary, known as the safe heaven for the Royal Bengal Tigers. A total of 300,000 people are employed there.
The wood products of the Sunderbans contribute 80% of the total revenue of the
Bangladesh forestry department. About 120 species of commercially precious fishes, 270 species of birds, 42 species of mammals, 35 reptiles and 8 amphibians are living in the
Sunderbans}06 Due to upstream diversion of water at Farakka, increasing salinity, desertification and destruction of forest caused significant harm to the flora and fauna of the Sunder bans and led to the huge economic loss of the country.
Industrial Production: Bangladesh has been seriously threatened by the upstream withdrawal at Farakka. The Bangladesh Water Development Board (BWDB) unfolds that due to reduced water flow and increased salinity Bangladesh lost 30 million taka during
1988-89.107 The Khulna Newsprint Mill's production reduced drastically, because the chloride contents of the water increased by a 20-fold.108 A number of jute mills and the only thermal power plant in the southwest region of the country are under increasing threat of salinity. The Pakshi paper mill was shutdown due to salinity hazard. During
Alan Potkm, "Watering the Bangladesh SundarBans" in M Monirul Qader Mirza ed,The Ganges Water Diversion Environmental Effects and Implications (London' Kluwer Academic Publishers, 2004) 163 at 163-166 107 Supra note 98 at 222 108 Ibid 108 1976-1993, the total loss in the industrial sector caused by the withdrawal of water at
Farakka was US$37 million.109
Interlinking of Rivers (ILR) Project and its Impact
The Indian National Water Development Agency (NWDA) prepared a mega plan in May 2000 to interlink 30 common international rivers to transfer waters from one basin of a river to another and thus solving the water crisis in the draught affected regions.
There are two components of the project. The first component aims to link 14 Himalayan rivers in northern India and the second component attempts to connect 16 peninsular rivers in southern India.110
In response to a writ petition (civil no.512/202), the Indian Supreme Court has mandated the central government of India to interlink all the major Indian rivers in order to divert waters to draught prone states in the South. The apex court ordered the
M Monirul Qader Mrrza & Maminul Haque Sarker, "Effects on Water salinity in Bangladesh" in Monirul Qader Mirza ed The Ganges Water Diversion Environmental Effects and Implications (London Kluwer Academic Publishers, 2004) 81 at 101 110 M Rafiqul Islam & Shawkat Alam, "Interlinking Rivers of India International and Regional Legal Aspects" in M Monirul Qader Mirza, Ahsan Uddin Ahmed & Qazi Khohquzzaman Ahmad eds Interlinking Rivers in India Issues and Concerns (London CRC Press, 2008) 219 at 220, The Himalayan component involves 1 Kosi-Mechi, 2 Kosi-Ghagra 3 Gandak-Ganga 4 Ghagra-Yamuna 5 Sarda-Yamuna 6 Yamuna-Raj shthan 7 Rajshthan-Sebermali ,8 Chunar-Sone Barrage 9 Sone Dam-Southern tributaries of Ganga 10 Manas-Sankosh-Tista-Ganga, 11 Jogighopa-Tista-Farakka (alternate) 12 Farakka-Sunderbans 13 Ganga-farakka-Damodar-Subermarekha 14 Subermarekha-Mahanadi The Peninsular component includes 1 Mahanadi (Manibhadra)-Godavan (d/s) 2 Godavan (Inchampalh) - Krishna (Nagarjunsagar) 3 Godavan (Inchampalh low Dam) - Krishna (Nagarjunsagar) 4 Godavan (Polavaram) - Krishna (Vijaywada) 5 Krishna (Almatti) - Pennar 6 Krishna (Srisilam) - Pennar 7 Krishna (Nagarjunsagar) — Pennar (Somasila) 8 Pennar (Somasila) - Cauvery (Grand Amcut) 9 Cauvery (Kattalai) - Vaigai - Gundar 10 Ken - Betwa 11 Parbati - Kahsindh - Chambal 12 Par - Tapi - Narmada 13 Damanganga - Pinjal 14 Bedti - Varda 15 Netravati - Hemavati 16 Pamba - Achankovil - Vaippar See Inter river linking Project Online Source < http //www ecoworld com/waters/mdias-water-future html > 109 government of India to implement the project by December 31, 2016. The goals of this
$200 billion mega-project are to meet the water scarcity of its different southern states
(domestic, agricultural and industrial use) and to bring 34 million more hectares of land under the irrigation system with the surface water and 80 million hectares more with subterranean water. India also plans to produce 34 million KW hydro-powers under this project.111 In order to get the optimum results under this project, 334 billion cubic meters of water are required to transfer through 30 constructed inter -river links, 36 big dams, 94 tunnels and 10,876 kilometers of canals.112
Impact of the ILR Project on Bangladesh
This Project, if implemented, will seriously threaten the very existence of
Bangladesh, because 80% of its annual fresh water supply comes as a trans-boundary inflow through 54 common rivers. The Padma, Jamuna, Meghna Bachao Andolan
(movement for saving the Padma, the Jamuna and the Meghna), a civil society of
Bangladesh, called the ILR Project as a "weapon of mass destruction against
1 1 7
Bangladesh." Some experts believe that arresting the natural flow of rivers on a gigantic scale could sound the death knell for the mangroves in the delta region of West
Bengal and Bangladesh, because mangroves need steady rise and fall of the sea level so
111 Shamim Ahsan, "India's Giant River link Project: Will Bangladesh Dry up?" Star Weekend Magazine (10 October, 2003) 1.online: http:www.thedailystar.net/magazme/2003/10/coverstory.htm>. 1 u M. Monirul Qader Mirza & Qazi Kholiquzzaman Ahmed, "Interlinking of Rivers in India : Issues and Concerns" in M. Monirul Qader Mirza, Ahsan Uddm Ahmed & Qazi Kholiquzzaman Ahmad eds Interlinking Rivers in India Issues and Concerns (London: CRC Press, 2008) 1 at 7. 113 A.N.M. Nurul Haque "River Linking Project May Spell Disaster" post-Editorial, The Independent [Bangladesh] (October 22, 2003). 110 that their roots can breathe. 114 If this ILR project is implemented, it will have direct impact on Bangladesh on the following areas:
Hydrology: If this project is implemented, due to the diversion of waters of the Ganges and the Brahmaputra, a significant amount of the wetlands will not be flooded at all and will change the natural setting of the wetlands and will significantly influence the hydro environmental setting of Bangladesh in many ways. It will reduce recharge of the groundwater through the wetlands, reduce the water holding capacity of wetlands, affect the ecosystem in the northwest region of Bangladesh and will reduce the inflow of the major rivers like the Ganges, the Brahmaputra and the Meghna rivers. Consequently, it will reduce the inflow to spill channels of the lower Meghna in the south-central region, and it will cause severe changes in the morphology due to aggravated erosion and deposition.115
Agriculture: In the aftermath of the adverse effect of the ILR, the main cropping system of Bangladesh consisting of Aman and Boro cultivations will be suffered. The high- yielding Aman paddy provides 43% of cereal which is the staple food of Bangladesh. In
November and December during the cultivation period of this crop, it will be difficult to meet the needs of water with reduced flow of the rivers. Irrigation schemes (dependent on
114 Joyonto Bandapadhya & Parveen Shama, "The Interlinking of the Indian Rivers Some Questions on the Scientic, Economic and Enviornmental Dimensions of the Proposals" Occassional Paper no 60 (SOAS Water issues study Group, University of London, June 2003), Abu Raihan M Khahd, "The Interlinking Project in India and International Water law An Overview" 2004) 3, Chinese Journal of International Law 553 at 555 115 Ahsan Uddm Ahmed, "Living in Downstream Development m Peril" in Mirza et al eds Interlinking Rivers in India at 161 111 the Teesta project, the Chandpur and the Meghna-Dhonagoda and the Ganges-Kobadak
projects) will mostly be out of order due to a lack of adequate flows to the Ganges, the
Brahmaputra, the Meghna and the Teesta rivers and their tributaries and distributaries. In
addition, the cultivation ofBoro paddy which is dependent on ground water irrigation will
be hampered, because the sources of ground water would be reduced alarmingly due to
the drying up of the wetlands.
Industry: The ILR will ruin the expanding industrial sector of Bangladesh with the
possible salinity of water. Choking of small rivers and lowering of water levels in many
rivers would stop the rapidly expanding industrial sector and obviously will lead to the
reduction of productivity.
Water ways and navigation: It is another important sector which will seriously be
damaged with the operation of the ILR. As a land of rivers, Bangladesh uses the water
ways as important means of transportation. For this purpose the rivers require adequate
draft even in the dry season. Unfortunately, the ILR would choke many smaller channels
and lower the available draft even in moderate-sized rivers which would restrict passage
through these rivers.
Changes in ecology, climate change and public health: If the ILR is implemented, due to the reduction of wet lands, the fauna and flora of Bangladesh will be periled. On
account of increased salinity, the habitats offish, birds and wild animals will be destroyed
and the mangrove forest, the Sunderbans will be badly affected. After the completion of
112 the project, India will have complete control of the waters of all rivers running through
Bangladesh. During the dry season, withdrawal of water from the already silted up rivers
will contribute significantly to the desertification of Bangladesh and during the monsoon
the release of excess water will flood the entire Bangladesh because the silted up rivers
will be unable to carry waters to the sea. This ecological impact will engender climate
change116 causing unpredictable weather like hot and longer summers, delayed monsoon
rain etc. and will have a bad impact on cropping and plantation.
Economic, social and political unrest: If this project is implemented, at the cost of
Indian development, Bangladesh will face irreparable economic loss from agricultural,
industrial, communication, livestock, fishery and environmental sectors. A huge number
of workers will be unemployed and they will create social disorders like drug, women and
children trafficking. Illegal migration from Bangladesh to all other countries of the world
will occur against the backdrop of such a massive catastrophe. Eventually it will not only
engender the political unrest in Bangladesh, but also it will export unrest and disorder to
other peaceful countries.
Richardson, et al explain climate change as " generally include increased temperature, threats to species, reduced crop productivity, changes in wind and precipitation patterns, sea level rise, water temperature rise, coastal flooding and erosion, extreme weather events, health impacts such as malnutrition and the spread of infectious disease, and the concurrent impacts on economic and social well- being that these effects entail Global warming threatens permanent disruption of eco system and biodiversity and, ultimately, the survival of life on earth." Benjamin J Richardson et al, "Introduction Climate Law and Developing Countries" in Benjamin J Richardson et al eds Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Northampton Edward Elgar, 2009) 1 at 3
113 The Tipaimukh Hydraulic Dam (THD) and Its Impact on Bangladesh
The Government of India has initiated construction of the THD, located 500 m. downstream from the confluence of the river Barak, just one hundred km north of
Jokiganj, Bangladesh. The dam is proposed to be some 180 m. above the sea level with a maximum reservoir level of 178m and 136m as the minimum level. The length of the dam is 390 m., the breadth is 162.8m and the height is 178m.117 It is claimed to be the world's
1 1 8 largest rock fall dam. The main purpose of the THD is to generate 1,500 MW of hydro electric powers. It will also be used as a flood control dam for the Monipur and Mizoram states in India and for irrigation purposes along the 1km stretch of the Barak River up to the Bangladesh border. The Indian authorities have targeted to complete the project by
2012.119
The THD is being built according to the recommendations of the Shukla
Commission of India. It also recommended building a diversion barrage downstream of the dam at Fulertal in Assam. To make the THD economically viable, India will build the diversion project at Fulertal or at any other suitable locations. The THD will have the maximum capacity to hold 15 billion cubic metres (BCM) of water, which according to the Central Water Commission of India accounts for about 30% of the total flow of the
117 M. Aktarul Islam Chowdhury, "Tipaimukh Dam: A Threat to Bangladesh", The New Nation [ Bangladesh] (October 5, 2009). 118 Nadim Jahangir, "The Tipaimukh Dam Controversy" Forum (July 2009). 119 Nadim Jahangir, "The Tipaimukh Dam Controversy," Forum (July 2009). 114 Barak River. This means that India will have unilateral control over 30% of the flow of the international river, Barak.120
The Barak is an international river and its tributaries are the Surma and the Kushiara Rivers of Bangladesh. The Surma River feeds the mighty Meghna River which flows through Bangladesh. Millions of people are dependent on hundreds of bodies of water, fed by the Barak River in the Sylhet region, for fishing and agriculture. This will have the worst effects on the livelihood of the Sylhet region in Bangladesh. One study claims that because of the dam, during the monsoon, the flow in the Surma and the
Kushiara will be reduced by 54 00 and 3600 cusecs respectively. The reduction of the same amount in the dry season will have the potential to dry off these two rivers.
Although this project will hurriedly ensure the economic development of India,
Bangladesh's economic development will be buried at the same rate. Most importantly, the THD will promote climate change in the region, caused by "the warming and drying up of wetlands, the thawing of permafrost regions and the unabated destruction of the rainforest that are curtailing the absorption capacity of natural carbon sinks."122 Roughly
7-8% of the total water of Bangladesh is obtained from the Barak River. Approximately
Md. Khalequzzaman, "Tipaimukh Dam: Blessing or Peril for Bangladesh?" The Daily Star [Bangladesh] (12 July 2009). 121 Ibid 122 Robert Picciotto, "Evaluating Climate Change and Development" in Rob D Van den Berg & Osvaldo Femstein eds. Evaluating Climate Change and Development (New Jersey: Transaction Publishers, 2009) at 21. 115 40 million people of 20 districts of Sylhet and Dhaka divisions123 are dependent on hundreds of bodies of water, fed by the Barak River for fishing, agriculture and navigation.
The Barak, Surma-Kushiara-Meghna river system stretches about 946 km. Around
669 km. of this is in the Bangladesh side.124 The dam is being constructed at the highest risk seismically hazardous zone. The location of the dam, the northeast part of India, is one of the six major seismically active zones of the world which also covers Bangladesh.
The huge reservoirs of the dam will create pressure on the ground of this region which is already a high alert zone for earthquakes. A major earthquake may cause the failure of the dam and endanger the lives, land and forests of both India and Bangladesh. The risk of dam failure is a significant issue. The catastrophic dam failure (dam break) will cause sudden draining of the reservoir and severe flood wave that may cause huge destruction, downstream in Bangladesh.
Mirza, one of the key experts on the THD issue rejected the plausibility of the project on the following grounds: first, Bangladesh never officially consented India to build the THD. It was exclusively an Indian proposal; second, in the monsoon, in order to secure the dam from the heavy rainfall event, run off water has to be released through the spill ways immediately which will aggravate flood in the down stream, Bangladesh; third,
Mohiuddin Alamgir, "India's Tipaimukh Dam: Another Farakka for Bangladesh in the Offing?" New AgeXtra [Bangladesh] (June 12-18, 2009). 124 Ibid 125 Ibid 126 M. Monirul Qader Mirza, "Fallacies of India's Tipaimukh Dam" Hobday [Bangladesh] (28 November 2009). 116 the impact of future climate change in the design flood of the THD is not considered.
Therefore, any increase of probable maximum flood (PMF) for climate change will cause dam failure ; fourth, the THD, followed by a barrage at Fulertal will cause upstream withdrawal to enhance Indian irrigation and it will create trouble for Bangladeshi irrigation; fifth, in the late monsoon to summer, a consistent addition of the flow of water, because of the release of water at the upstream (for the sake of the dam) would cause water logging in the Meghna basin (which is already in depression, many of its tributaries are below the sea level) would endanger cultivation of Boro rice (a major seasonal crop) in Bangladesh.
The Principles of International Law Violated by India
Reasonable and Equitable utilization of international watercourse is the governing principle of international water law. It has been recognized as an established principle of customary international law in all important codifications of this area especially, the
Madrid Resolution 1911, the Salzburg Declaration 1961, the Helsinki Rules, 1966, the
Stockholm Declaration 1972, the United Nations Environment Program's 1978 Principles on Shared Natural Resources, the UN Convention on Watercourse 1997 and the 2004
Berlin Rules. The soft law instruments like the 1992 Dublin Principle and the 2001 Bonn
Ministerial Declaration have endorsed the reasonable and equitable utilization of the
117 transboundary water resources.127 This principle is recognized in the precedent case laws like the Trail smelter case, the Corfu Channel case, the Lake lanoux case and the
Gabcikvo-Nagymaros case.
India violated this principle, first of all, by unilaterally constructing the Farakka barrage over the international river, the Ganges, withdrawing the water at the upstream and ruining one third of Bangladesh's economy, ecology and livelihood. Secondly, India further breached the 1996 Ganges Water Treaty by depriving Bangladesh of its due share as indicated in the treaty. Thirdly, India is constructing the THD at the upstream of the international river, the Barak without any agreement with Bangladesh. This has further violated international law. Fourthly, the Indian plan to implement the interlinking of rivers project, once again infringed the principle of reasonable and equitable utilization.
More specifically, the following characteristics of the legal principle of reasonable and equitable utilization have suffered by Indian actions.
1. Limited sovereignty: The principle of equitable utilization recognizes the rights of both upstream and down stream states. It means that this principle protects the interests of both the polluters and the victims.128 This principle is reflected in the Gabcikovo-
Nagymaros case, where the ICJ views: "community of interest in a navigable river becomes the basis of a common legal right."129 Indian unilateral construction of the
Irina Zodrow, "International Aspects of Water Reforms" in Philip Cullet et al. eds. Water Law for the Twenty-First century National and International Aspects of Water Reform in India (London: Routledge2010) 36 at 40-43. Owen Mclntyre, Environmental Protection of International Watercourses Under International Law (Aldershot: Ash gate Publishing limited, 2007) at 77. 129 Quoted m ibid. 118 Farakka barrage, withdrawal of waters at the upstream and further failure to respect the
Ganges Treaty of 1996 clearly violate the principle of limited sovereignty and establish the absolute territorial sovereignty theory, which states that a co-basin state may freely utilize water within its territory without having any regard to the rights of the downstream or contiguous states.130 The THD and the ILR projects further undermined the principle of the limited territorial sovereignty of international law. Indian actions are also opposed to the spirit of the Corfu Channel case. The tribunal declared:
Certain general and well -recognized principles, namely ...every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.131
2. Shared natural resources: This principle endorses the view that shared resources are subject to the obligation of equitable utilization and transboundary cooperation. Indian unilateral construction of barrages and dams at the upstream and control of water resources clearly clash with this principle. Theoretically, the 1996 Indo-Bangladesh
Water Sharing Treaty (Article 2 and annexure 1 and II) clearly delineates the apportionment of the Ganges water. In fact, within the last 14 years of the agreement
Bangladesh did not get its due share for 13 years. This is a gross violation of the 1996 treaty. Similarly it violates the shared natural resources character of the reasonable and equitable utilization theory.
,3UIbid.al 13. mCorfu Channel Case (United Kingdom v. Albania), 1949, ICJ 4. 132 Article 2, Annexure 1 and 2 the 1996 Ganges Water Sharing Treaty 119 3. Equitable utilization and environmental protection: As a matter of legal principle, equitable utilization means equality of rights or shared sovereignty, not equal division 133
Equality of rights means, the riparian states have an equal right to use the waters of such waterway in accordance with their needs 134 Indian deprivation of Bangladesh by unilaterally withdrawing most of the waters in the absence of any legal instrument from
June 1975-November 1977, and similarly from June 1988 to December 1996 were the worst violations of international law Utilizing the absence of the water sharing instrument, India commenced and recommenced its unilateral withdrawal which caused unprecedented reduction in the flow left for Bangladesh and badly affected not only the economy, but also the ecology of the country 135
Indian unilateral withdrawals of water led to environmental degradations, resulted in the loss of the sources of living for a large population m the southwestern part of
Bangladesh and have necessitated their migration for survival Lack of job opportunities to absorb these environmental refugees in other parts of Bangladesh allegedly forced some of them to migrate to the neighboring country, India Therefore, the Indian actions clearly contravene international law which stipulates that a riparian state has a legal right to utilize the water of an international river in its territory only if doing so
Supra note 15 at 37 134 J Lipper, "Equitable Utilization" in Garreston, Hayton & Olmstead eds The Law of the International Drainage Basins (New York Ocean Publications Inc , 1967) at 44 135 Shaukat Hassan, "Environmental Issues and Security in South Asia," Adelphi Papers (International Institute for Strategic Studies , no 262, 1991) at 51 136 Supra note 105 at 189-205 120 causes minor or no injury to a co-riparian country. The tribunal of the Trail Smelter case observes:
no state has the right to use its territory in such a manner to cause injury by fumes in or to the territory of another or the properties or persons there in, when the case is of serious consequence and the injury is established by clear and convincing evidence 138
4. No significant harm: The principle of equitable utilization is compatible with the principle of no significant harm. According to this principle, all major interferences by a riparian state with the water of an international river within its territory, that seriously affect the use and enjoyment of the same water system by co-riparian states having the rightful share, is illegal.139 The no harm principle is endorsed by the Lake Lanoux award in the following way: "there is a rule prohibiting the upper riparian state from altering the waters of a river in circumstances calculated to do serious injury to the lower riparian state..."140
Indian unilateral construction of the Farakka barrage, diversion of water at the upstream in order to keep the Kolkata Port navigable and upstream withdrawal for the irrigation of UP and Bihar not only damaged one-third of Bangladesh's economy, but also seriously affected the livelihood of millions of people. Siltation caused unprecedented floods in the monsoon, and salinity destroyed the natural habitats of the flora and fauna.
1 Supra note 24 at 253 Quoted in Stephen C McCaffrey, The law of International watercourses (Oxford Oxford University Press, 2007) at 420 139 C B Bourne, "The Right to Utilize the waters of International Rivers" (1965) 3 Can Y B Int'I L 187 at 221-259 140 Lake Lanoux (Spain/France) award of 16 Nov 1957, Rev GEN DR INT'L PUBLIC, vol LXIL 79 at 107, Para 13 (pans 1958) Quoted in Supra note 130 at 422 121 Ultimately it will contribute to the development of climate change. It has created millions of environmental refugees in Bangladesh. These refugees put tremendous pressures on the urban centers of Bangladesh and some of them are allegedly migrating to India and causing cross boundary illegal migration problems. In addition, it has adversely affected the eco-system and changed the river morphology.
Given this situation, Indian failure to respect the "no significant harm" principle of international law is obvious. It is also the violation of the Stockholm Declaration of
1972, the Madrid Declaration of 1911, the Salzburg Resolution of 1961, the polluter-pays principle and the fundamental human right's principle of "free access to water."
Principle 21 of the Stockholm Declaration insists that:
... States have, in accordance with the Charter of the UN and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities withm their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.
Similarly the Madrid Declaration of 1911 established absolute prohibition against activities that may result in injuries to other riparians.143 While the Salzburg Resolution emphasized the obligation of the states not to cause harm to other states,144 the polluter-
141 M Monirul Qader Mirza, "The Ganges Water Diversion' Environmental Effects and Imphcations-An Introduction" in M. Monirul Qader Mirza, ed. The Ganges water Diversion Environmental Effects and Implications (London: Kluwer Academic Publishers, 2004) 1 at 3 142 United Nations Conference on Human Environment (UNCHE) 1972 The Stockholm Declaration, The Final Act at the United Nation's Conference on the Human Environment ( New York United Nations) Quoted in John Martin Trolladalen, International Environmental Conflict resolution The role of the United nations( (Washington D C Geneva , New York 1992) at 39 143 Salman M.A. Salman, "The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules Perspectives on International Water Law" (2007) 23 Water Resources Development 625 at 628 144 Ibid at 629 122 pays principle is aimed primarily at recovering the environmental costs, where polluters should bear any social costs resulting from their activities.
Although legally non-binding, these soft law instruments are very influential in water resources management. Indian inability to respect the principle of no significant harm further led to the violation of all these above mentioned environmental laws and human rights laws.
5. Reasonableness: The Equitable utilization theory is accepted as a general principle of international law for its reasonable character. The right of each state to reasonable use of water depends mainly on the extent of their dependence on water and availability of alternative sources. The principle of equitable utilization means that each watercourse state is entitled to the use and benefits from the watercourse in an equitable manner.145
Indian upstream withdrawal for its own economic development at the cost of the weaker Bangladesh is a clear-cut violation of the Helsinki Rules which stressed on the factors such as geography, climate, past utilization, economic and social needs of each state and availability of other resources. Regarding the reasonable utilization of the
Ganges water, the position of Bangladesh is that at least in the dry season it is entitled to the natural flow of the Ganges in order to satisfy the existing demands and ecological needs that could not be met in other ways. On the other hand, the alternative proposal of
India is to link the Brahmaputra River in Bangladesh with the Ganges, which is
Ibrahim Kaya, Equitable Utilization The Law of the Non-Navigational Uses of International Watercourses, (Aldershot Ashgate publishing limited, 2003) at 90 123 unrealistic. In this predicament, without exploring other options India's diversion of the
Ganges water for preventing the silting of the Kolkata Port was a violation of the reasonable use principle of international law.147
6. Optimum utilization: International law recognizes optimum utilization, which means maximum utilization and economic development of an entire river basin regardless of political regime or state. First, it takes into account the socio-economic needs of the basin states; secondly, it aims to distribute the waters among the basin states in a way that satisfies their needs to the greatest possible extent. Finally, it seeks to distribute the waters to achieve the maximum benefit for each co-basin state with the minimum detriment.
Indian upstream withdrawal and failure to release water to Bangladesh as indicated in the 1996 Ganges water agreement,149 its unilateral construction of the THD and its attempt to interlink 30 international rivers to divert waters to Indian desert areas are aimed at satisfying the maximum needs of India at the maximum detriments of
Bangladesh. Indeed, the absence of Indian cooperation, not only caused serious impediments for the water management of Bangladesh, but also provided the upstream country with 'political leverage and bargaining chips' against the lower riparian
India had three other alternatives; to improve the navigation channel of the Hoogly by dredging, to open up direct routes between the Kolkata Port and the sea, an alternative outlet to the Kolkata Port See, Kurshida Begum, at 45-47 147 Supra note 131 at 293 148 Jon Martin Trolldalen International Environmental Conflict Resolution The Role of the United Nations, (Washington D.C.. United Nations Institute for Training and Research) at 79. 149 Within 14 Years of the agreement Bangladesh was denied from its due share continuously for 13 years 124 Bangladesh.150 On the other hand, Bangladesh could not use its bargaining chips151 effectively because of its poor diplomacy and failures of national leaders at the highest political level.
7. Sustainable development: A development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. Sustainable development stands on the "use of scientific knowledge for defining, prioritizing, and solving the environmental problems and transformation of environmental protection from zero sums to a win -win situation."153 It requires the maintenance, rational use, and enhancement of the natural resource base that underpins ecological resilience and economic growth. 4
It is evident from the requirements of India and Bangladesh that the existing flow of water at the Ganges is not sufficient to meet the needs of the riparian countries and require augmentation to meet the rising needs and to ensure sustainable development. In
Shapan Adnan, "Intellectual Critiques, People's Resistence and Inter-Riparian Contestations Constraints to the Power of the State Regarding Flood Control and Water Management in the Ganges - Brahmaputra-Meghna Delta of Bangadesh," in Devleena Ghosh, Heather Goodall & Stephanie Hemelryk Donald eds Wate, Sovereignty and Borders in Asia and Oceania (London and New York Routledge, 2009) 104 at 120-21 151 The Government of Bangladesh reportedly provided the road transit facility to India to connect its north eastern states with the mam land in January 2010 The Chittagong Sea Port and the Mongla Sea Port facilities have also been extended to India to use as gestures of friendship Unfortunately, the Bangladesh government failed to secure an equitable utilization of the Ganges water or could not stop India from the construction of the THD or the ILR projects which are significantly injurious to Bangladesh See India- Bangladesh Joint Statement, January 2010 Online The Daily Star [Bangladesh] (13th January, 2010) 152 Report of the World Commission on Environment and Development Our Common Future, UN Doc A/42/427(1987)at24 153 Benjamin J Richardson & Stepan Wood, "Environmental Law for Sustainability" in Benjamin J Richardson & Stepan Wood eds Environmental law for Sustainability A Reader (Oxford Hart Publishing, 2006) 1 at 1-18 154 UNEP , Governing Council Decision 15/2 of May 1989, Annex 11, GAOR,44th Suppl No 25(A/44/25) 125 this regard, the inclusion of Nepal in the Ganges water management, creation of reservoirs in Nepal and storage of water in the monsoon and the release of the water to augment the flow of the Ganges in the dry season is a rational proposal. Nepal agreed on the grounds that it would create its revenue generating sources. Indian insistence on bilateralism to address the multilateral issue (the Ganges runs through Nepal-India and
Bangladesh) limited mutual benefits from negotiations, but established India as a major player in the region.155 This is a symptom of the Indian hegemonic stand and a violation of the principle of sustainable development.
8. Notification: The principle of equitable utilization recognizes the obligations of notification, consultation and negotiation, where the proposed use by another riparian of a shared resource may seriously harm its rights of interest. These principles are generally accepted in international legal documents. The Indian unilateral operation of the Farakka barrage, the unilateral construction of the Tipaimukh dam and the Indian decision to interlink 30 common international rivers and diversion of water from one end to the other without any agreement with Bangladesh are violations of the principles of notification, consultation and negotiation.
9. Data Sharing: It is the obligation of each riparian state of an international watercourse to cooperate and exchange data and information regarding the state of watercourse as well as current and future planned uses. This obligation is now a widely accepted principle of
Ben Crow & Nirvikar Singh, "Impediment and Innovation in International Rivers: The Waters of South Asia" (2000) 28 World Development 1907) 1907 at 1907-25. 126 international water law. No satisfactory agreements on allocations or any other related issues are possible, unless all basin states share hydro logic data.156
Regarding the construction of the THD and the ILR projects, India failed to share data, despite repeated requests from Bangladesh. The reason behind Indian unwillingness is understandable. India believes that sharing of data will create political instability, generate anti-Indian sentiments in Bangladesh and it will ultimately create impediments for the implementations of the projects. Indian actions obviously infringe the data sharing principle of the Customary International Law.
10. Peaceful settlement: The principle of equitable utilization advocates that all states in an international watercourse should seek a settlement of the disputes by peaceful means.
This principle has been endorsed by most of the modern international conventions, agreements and treaties. The Helsinki Rules 1966 (article 27), the UN Watercourse
Convention 1997 (paragraph 1, article 33) and the SADC Protocol 1995 have incorporated this principle. It is also incorporated in the Indus Water Treaty 1960 (article
9, annexure F), the Mekong River Basin Agreement 1995 (articles 34-35), the 1995
Watercourse System (article 7) and the 2002 Framework Agreement of the Sava River
Basin (Articles 22-24).
Peaceful settlements not only include bilateralism, but also third party settlement
1 ^7 or multilateralism. Here, the main problem is that India prefers bilateralism and refuses
Peter H. Gleick, "Water and Conflict: Fresh water Resources and International Security" (1993) 18 International Security 79 at 109. 127 to accept a third party settlement. It is interesting to note that in the 1996 Indo-
Bangladesh Ganges Water Sharing Treaty, there is no provision for arbitration or a third party settlement. On the other hand, in the 1996 Mahakali Agreement158 with Nepal, India accepted arbitration or a third party settlement. Similarly the 1960 Indus Water
Agreement was brokered by the World Bank. Another contradiction of the Indian policy is that the Inter-State Water Disputes Act of 1956 was legislated to deal with conflicts within India and provided provisions for the establishment of tribunals to adjudicate where direct negotiations have failed.159
The Inter-State Water Dispute Act (1956) as amended in 2002 has left the option for the formation of tribunals to resolve any conflict arising from the sharing of water. So far on five occasions, such a tribunal has been formed to settle disputes. These are the
Godavari Water Disputes Tribunal (April, 1969), the Krishna Water Disputes Tribunal
(April 1969), the Rabi and Beas Water Disputes Tribunal (April 1986), the Cauvery
Water Disputes Tribunal (1991) and the Narmada Water disputes Tribunal (October
1969).160
Peaceful settlement includes- Negotiation and Consultation, Good Offices and Mediations, Conciliation, Fact-finding /Inquiry and Adjudication/Arbitration 158 Article 11 of the 1996 Indo-Nepal Mahakali Agreement provides arbitration provision. It states that in case of either party disagree, " .. a dispute shall be deemed to have been arisen which shall then be submitted to arbitration for decision .." 159 The Inter- State Water Dispute Act was passed m 1956, see, Sid Gautam, "Inter state Water Disputes A Case Study of India" (1976)12 Journal of American Water Resources Association 1061 at 1063-1065 ' ° Godavari Water Disputes Tribunal was formed to adjudicate between Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh and Onssa, The Krishna water Disputes Tribunal was between Maharashtra, Karnataka and Andra Pradesh, the Narmada Water Disputes Tribunal was between Madhya Pradesh, Gujrat, Maha Rastra and Rajshthan, the Rabi and Beas waters tribunal was between Panjab, Hanana and Rajshtan, and the Cauvery Water Disputes Tribunal was between Karnataka and Tamil Nadu See, Douglas 128 The Indian double standard in the case of Bangladesh and rejection of the third party settlement are clear-cut violations of the principle of peaceful settlement of international law. The position of Bangladesh rests on the argument that a third party settlement can ensure the reasonable and equitable apportionment of the Ganges water for
Bangladesh and its concerns regarding the THD and the proposed ILR projects should receive proper attention through a third party settlement. The rationale behind Indian rigidity on bilateralism is that "this approach will allow her to dominate the subcontinent, presumably by hindering the formation of 'bargaining coalition' by India's neighbors."161
Indian unilateral actions, therefore, violate every principle of international law regarding the transboundary water and environmental resources.
Conclusion:
The existing theories of international law regarding transboundary water and environment, the Helsinki Rules, the UN Watercourses Convention and the Berlin Rules established the principle of reasonable and equitable utilization, principle of 'no significant harm' to other states, principle of notification, consultations and negotiations, principle of cooperation, principle of sharing data and the peaceful settlement of the dispute. These principles are endorsed by the case laws and treaty laws and established
Hill, Boundaries, Scale and Power in South Asia" in Devleena Ghosh, Heather Goodall & Stephanie eds Water Sovereignty and Borders in Asia and Ocenia (London' Routeledge, 2009) 87 at 93-101. 161 Ben Crow & Nirviker Singh, "The Management of International Rivers as Demands Grow and Supplies Tightns; India,Chma Nepal Pakistan, Bangladesh" (2009) 8 India Review 306 at 321. 129 customary international law. International environmental law, especially the climate change law162 also endorses these principles.
In the light of international law, Indian withdrawal of water at the upstream and further diversion of water through the Farakka barrage, Indian present construction of the
THD and the planned ILR project and their adverse impacts on the economy, environment and livelihood of the people of Bangladesh are gross violations of the principles of reasonable and equitable utilization, the principle of no harm and the principle of cooperation and sharing data. A state cannot lawfully use its territory to the detriment of another state and is liable for extraterritorial damages. Relying on this legal ground it can be concluded that international law does not allow India to operate the
Farakka barrage, construction of the THD and the planned construction of the ILR project unilaterally, in a manner seriously injurious to Bangladesh. In this context it is worthy to note:
A riparian state has the legal right to utilize the water of an international river in its territory if it's doing so causes no injury or only a minor injury to co-riparian states All major interference by a riparian state with the water of an international river within its territory that seriously affects the
In international law responsibility for international wrongful act rests on that state This is codified in the article 1 of the ILC Draft Articles on State Responsibility adopted in 2001 See Sumudu Atapattu, "Climate Change, Differentiated Responsibilities and State Responsibility Devising Novel Legal Strategies for Damage Caused by Climate Change" in Benjamin J Richardson et al eds Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Northampton Edward Elgar, 2009) 37 at 48, Article 3 of 1992 Climate Change Convention states "The parties should protect the climate system for the benefit of the present and future generations of human kind on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities Accordingly, the developed country parties should take the lead in combating climate change and the adverse effect there of" See The United Nation's Framework Convention on Climate Change at
163 Supra note 3 at 188-220. 131 Chapter: 4
Underlying Factors for the Indian Negative attitude to International Law
Introduction:
My findings in the previous chapters show that reasonable and equitable utilization of the
international watercourse has become the governing principle of international water law It has substantial support in state practices, judicial decisions and international codifications It is now widely accepted that the principle of reasonable and equitable utilization is the pre-eminent rule relating to the utilization of international watercourses It has been recognized as an established principle of customary international law in all important codifications of this area, especially the
Madrid Resolution 1911, the Salzburg Declaration 1961, the Helsinki Rules 1966, the Stockholm
Declaration 1972, the UN Environment Program's Principles on Shared Natural Resources 1978, the UN Convention on Watercourse 1997 and the Berlin Rules 2004 The Berlin Rules oblige states not only to utilize but to manage waters reasonably and equitably ' It was a bold approach to the principle of equitable use Further more, the principle of reasonable and equitable utilization is also recognized by the treaty laws and the case laws International environmental laws, especially the climate change law2 also endorses this principle Above all, the principle has
1 Irma Zodrow, "International Aspects of Water Law Reforms" in Philippe Cullet et al eds Water Law for the Twenty -First Century National and International Aspects of Water Law Reform I India (London Routledge, 2010) 36 at 43 2 In international law responsibility for international wrongful act rests on that state This is codified in the article 1 of the ILC draft articles on state responsibility adopted in 2001 See, Sumudu Atapattu, "Climate Change, Differentiated Responsibilities and State Responsibility Devising Novel Legal Strategies for Damage Caused by Climate Change" in Benjamin J Richardson et al eds Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Cheltenham Edward Elgar, 2009) 37 at 48, Article 3 of 1992 Climate Change Convention states "The parties should protect the climate system for the benefit of the present and future generations of human kind ,on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities Accordingly, the developed country parties should take the lead in combating climate change and the adverse effect there of" See The United Nation s Framework Convention on Climate Change Online 132 become the governing law regarding the distribution of the transboundary water and environmental resources (Chapter 2 of this thesis).
Indian unilateral construction of the Farakka barrage and diversion of the Ganges water at the upstream have caused a significant harm to the economy, ecology and livelihood of
Bangladesh Indian commencement of the Tipaimukh Hydraulic Dam (THD) and the plan to complete the interlinking rivers project (ILR) without any concurrence of Bangladesh would further cause significant harm to Bangladesh Indian unilateral actions obviously demonstrate gross violations of the principle of reasonable and equitable utilization, the principle of no harm and the principle of cooperation and sharing data International law suggests that a state cannot lawfully use its territory to the detriment of another state and is liable for extraterritorial damages
(3rd chapter of this thesis). No harm is the dominant rule in international law.3
In this chapter I argue that the hegemonic influence of India virtually dictates it to play power politics and to violate international law, especially the transboundary water and environmental laws in South Asia. The goal of the Indian policy is to meet its maximum water needs by demonstrating power to control the neighboring countries India plays power politics over small South Asian neighbors first "as a resource, then as a foreign policy goal and finally as
it on a strong state (India) and the rising demand for water (drinking, agriculture and hydro
electricity generation) forced India to play power politics or exert hegemonic influence over
Bangladesh Its economic and military powers as well as strategic partnership with the US further
endorsed its hegemonic policy towards the weak neighbors
However, this chapter seeks to analyze the reasons for India's failure to respect the
transboundary water and environmental laws regarding the distribution of the Indo-Bangladesh
water and environmental resources Why did India fail to respect transboundary water and
environmental laws'? This question will be addressed in this chapter.
1. Factors Responsible for the Indian Violation of International Law
1 1 Intrinsic Weakness of the International Law
Most international law is soft law and only a few is hard law. Abott and Snidal refer that hard law has "...legally binding obligations that are precise and that delegate
authority for interpreting and implementing the law" while, "... soft law begins once
legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation." Snyder describes soft law "as rules of conduct which in principle have no legally binding force but which affect the same actors."7 Soft laws are
5 John M Rothgeb, Jr , Defining Power, Influence and Force in the Contemporary International System (New York St Martin's Press 1993) at 19-21 6 Kenneth W Abbott and Duncan Snidal, " Hard and Soft Law in International Governance"(2000) International Organizations (54) 421 at 421-22, Malanczuk argues "The emergence of soft law also has to do with the fact that states in agreement frequently do not (yet) wish to bind themselves legally but nevertheless wish to adopt and test certain rules and principles before they become law," See, Peter Malanczuk, Akehurst's Modern Introduction to International Law , 7' ed (London Routledge 1997) at 54 7 F Snyder " The Effectiveness of EC Law", in T Daintith ed Implementing EC Law in the UK (1995) and KC Wellens and GM Borchart, " Soft Law in EC Law" (1989)14 European Law Review 267 at 267- 134 also called "aspirational texts" or "gentle men's agreement" intended by their parties not to be legally obligatory like hard laws.8 Soft laws as Malanczuk opines are "guidelines of conduct, neither strictly binding norms of law, not completely irrelevant political maxims and operate in a grey zone between law and politics..."
There are debates among jurists about the effectiveness of international
law. Their positions rest on the argument that only the principles of international
law are not simply sufficient mechanisms to resolve the global disputes. In most
cases, they believe that the binding mechanisms required to checkmate the power
politics of the strong states over the weak states do not exist in international law
that can be applied. International law by definition applies to only civilized
nations.10 Lawrence nicely depicts:
While there are many rules of international conduct which the general opinion of civilized mankind approves They are enforced partly by a conscientious conviction that they are good and right, partly by those subtle influences which make it difficult for a man or a body of man to act m defiance of the strongly held views of those with whom they habitually associate, partly by a fear lest disregard of them should in the long run bring evil on the recalcitrant These rules, though like other rules they are some times evaded and some times defied, do nevertheless receive general obedience
321 Cited in David M Trubek, Patrick Cottrell, and Mark Nance, " Soft Law," "Hard Law" and European Integration Toward a Theory of Hybridity" online < http //eucenter wise edu/OMC/Papers/EUC/trubeketal pdf > 8 David J Bederman, International Law Frameworks, 2nd ed (New York Foundation Press 2006) at 28 9See, Peter Malanczuk, Supra note 6 at 54 10 International law may be defined as the rules which determine the conduct of the general body of civilized states in their mutual dealings See, T J Lawrence, The Principles of International Law, 4' ed (London McMillan, 1911, Reprinted, Holmes Beach, Florida Gaunt, Inc , 1999) at 1 n Ibid at 10 135 International law stands by moral force more than material force. It is the product of the operation of the international system and it develops slowly from international practices. In fact, the international system does not have any effective mechanism to enforce international law. Bnerly conceives:
The international system has no central organ for the enforcement of the international legal rights as such, and the creation of any such general scheme of sanction is for the present a very distant prospect The absence of an executive power means that each state remains free to take such action as it think fit to enforce its own rights 14
Although the victim has a right to enforce international law against the violator, in reality nobody has an obligation to enforce it. Regarding the weakness of international law, Morgenthau and Thompson clearly elucidate:
There can be no more primitive and no weaker system of law enforcement than this, for it delivers the enforcement of the law to the vicissitudes of the distribution of power between the violator of the law and the victim of the violation It makes it easy for the strong both to violate the law and to enforce it, and consequently puts the rights of the weak in jeopardy A great power can violate the rights of a small nation without having to fear effective sanctions on the latter's part It can afford to proceed against the small nation with measures of enforcement under the pretext of a violation of its rights, regardless of whether the alleged infraction of international law has actually occurred or whether its seriousness justifies the severity of the measures taken '
Categorically, treaty law is the principal source of international law, but its main limitation is that treaty laws are binding only on the signatories and the treaties are effective only if they are implemented by each of the signatories. The effectiveness of such treaties /agreements is largely dependent on the signatories and their willingness to
12 Ibid at 11 Charles O Lerche, Jr & Abdul A Said, Concepts of International Politics in Global Perspective (New jersey Englewood Cliffs Prentice-Hall, Inc , 1979) at 160 JL Bnerly, The law of Nations An Introduction to the International Law of Peace, 6' ed (England Oxford University Press 1978) at 92-93 Hans J Morgenthau & Kenneth W Thompson, Politics among Nations The Struggle for Power and Peace, 6th ed (New York Alfred A Knopf, 1985) at 312 136 comply Since international law lacks an independent enforcement authority, the world community is largely dependent on voluntary compliance to secure the terms of international treaties 16 While customary law is the second important source of international law, it is subject to different interpretations by different states Rights and obligations that are established by the customs do not often receive international consensus on the course of action or the code of conduct This is true in the case of environmental law
Against the backdrop of vulnerabilities of enforcing international law, India like the great powers, often fails to respect international law regarding the transboundary water and environmental resources India exercises power politics on other weaker and smaller
South Asian countries and develops regional hegemony In the Post-Cold War era, the end of the super power rivalry has provided new opportunities for the regional pre eminent power like India, to achieve overt hegemonic or managerial role This does not necessarily contradict with the global super power and this is not only based on military wherewithal, but also on the political power to support and sustain such hegemonic influence over a relatively long period of time The Indian hegemonic aspiration has evolved out of the Nehruvian vision of the greater Indian union in South Asia 19 In this regard, Ingersoll and Frazier have argued "India's role m splitting Bangladesh from
15J Ohn Martin Trolldalen, International Environmental Conflict Resolution The Role of the United Nations (New York UNITAR 1992) at 38 17 Ibid at 39 18 Mohammed Ayoob, "India as Regional Hegemon External Opportunities and Internal Constraints" (1991) 46 International Journal 420 at 420 19 Zaglul Haider, "The U S Policy Towards Nuclear South Asia at the Dawn of the 21st Century" (2002)20 Regional Studies 82 at 83-84 137 Pakistan, its efforts to curtail internal unrest in Srilanka and Maldives, and its role in the
Maoist insurgency in Nepal, all highlight India's role as a custodian of the security
order."20 India pursues the realist approach of Morgenthau which asserts that
"international politics, like all politics, is a struggle for power. Whatever the ultimate
aims of international politics, power is always the immediate aim."21
1.2.Rising Demand for Water in India
India is a vast country with one of the largest populations on the earth after China. Its water requirement is much greater (for domestic supply, irrigation, and industry) than any other country in South Asia. From a hydrological point of view, 1700 cubic meters per person is the national threshold for meeting the water requirements for agriculture,
energy, industry and environment, while 1000 cubic meters is considered water scarcity
and less than 500 cubic meters is taken as absolute scarcity. Over 224 million people in
India live below 1000 cubic meters or the water scarcity level.23 The situation is expected to be even worse in 2050 when almost 22% of the area and 17% of the population in the country may go under the absolute scarcity condition.24 India satisfies 16% of the world's population and 15% of its livestock with approximately only 4% of the water resources.25
Robert Stewart-Ingersol & Derrick Frazier, "India as a Regional Power Identifying the Impact of Roles and Foreign Policy Orientation on the South Asian Security Order" (2010) 6 Asian Security 51 at 59 21 Supra note 15 at 31 22 Narendra Pani, "Boundaries of Transboundary Water Sharing" in N Shantha Mohan, Sailen Routrary & N Sashi kumar eds River Water Sharing Transboundary Conflict and Cooperation in India (London Routledge 2010) 47 at 50-51 23 Ibid 24 R Jeyaseelan, "Regulatory Aspects in Water Resources Development and Management" in N Shantha Mohan,Sailen Routray, N SashiKumar eds River Water Sharing Transboundary Conflict and Cooperation in India (London Rout ledge, 2010) 83 at 83 25,Ibid at 82 138 Of its potential 1123 BCM, almost 40%o comes from the Ganga-Brahmaputra and
Meghana System.26
India has an area of 3,287,590 sq.km and it has one of the largest arable areas in the world with 183.95 million hectares (ha) which means about 56 % of the total geographical area is under cultivation. It contributes 22 % of the GDP and employs around 65% of the labour force.27 The total available surface water resources of the country are estimated at 1953 billion cubic meters (BCM); out of this only 690 BCM is utilizable.28 A large number of inter state water dispute cropped up over the use of rivers, especially for irrigation and power development.29 The Ganges is nearly 2525 km long and about 80 percent of the basin area is in India, 18% in Bangladesh and approximately
2% in Nepal and China. Total populations of almost 300 million live in the Ganges basin and of them 10 million in Nepal, 40 million in Bangladesh and 250 million in India.
Within India the Ganges and her tributaries run through Himachal Pradesh,
Haryana, Delhi, Uttar Pradesh, Rajsthan, Madhya Pradesh, Bihar and West Bengal. Of the total of 2,5 25 km,1450 km lies in UP, 110km along the UP-Bihar border, 445 km in
Bihar and 520 km in West Bengal. In reality, the vital human and socio-economic needs of the riparian states of India especially UP and Bihar, force them to withdraw
N Shantha Mohan, "Locating Transboundary Water Sharing in India" In N Shantha Mohan et al eds River Water Sharing Transboundary conflict and Cooperation in India (London Routledge, 2010) p 3 28 Ibid at 4 29Sid Gautam, "Interstate Water disputes A Case study of India" (1976) 12 American Water Resource Association Journal 1062 at 1062
30 B.S Chimni, "A Tale of Two Treaties. The Ganga and the Mahakah Agreements and the Watercourse Convention" in Surya p. Subedi ed International Watercourse Law for the 21s' Century The Case of the Ganges Basin (Alder shot' Ash gate Publishing limited, 2005) 63 at 64. 139 water at the upstream. Most of the extractions of water at the upstream have taken place
upon the four main tributaries of the Ganges emerging from Nepal-the Mahakali, Ghagra,
(Karnah) Narayani and Kosi, which are diverted for irrigation largely in India as they
enter the plains. These irrigation schemes exceed the dry season flow of these rivers
which is 71% of the Ganges natural lean season flow. As a consequence, the flow at the
Farakka has declined progressively over the years31 and fails to release sufficient water to
meet the needs of West Bengal and Bangladesh.
The situation further exacerbated after diverting a huge amount of the Ganges
waters by India at the Farakka point for preventing the silting of the Calcutta port.
Statistical data indicate that, during the pre-Farakka period the annual minimum discharge
of the Ganges recorded at Hardinge Bridge point of Bangladesh was 1297 m3/ sec in April
1966 and in the post-Farakka period the minimum discharge was 135 m3/sec in April
1995. During the post-Farakka period the average dry season flow (November-May) at
the Hardinge bridge point in Bangladesh decreased by 35%, on the other hand, the
monsoon flow (June-September) had increased by 11%.32 India justifies its actions on the
grounds that it is a major riparian country for the Ganges water because of its 80 %
catchment area, 94.5% irrigation potentials and 94% of the population of the Ganges basin. A study shows that during the dry season, the total flow of the Ganges at Farakka
is 61,674 million cubic meters and the requirement of Bangladesh is 51, 806 million
31 A Dixit & M Q Mirza, "Who's Afraid of Farakka's Accord1?" (1997) 10 Himal 56 at 62 32 M Monirul Qader Mirza, "Hydrological Changes in Bangladesh" in M Monirul Qader Mirza ed The Ganges Water Diversion (London Kluwer Academic Publishers, 2004) 13 at 22-23 Salman M A Salman & Kishore Uprety, Conflict and Cooperation on South Asia's International Rivers" (London Kluwer Law International, 2002) at 145 140 cubic meters, while the requirement of India (West Bengal) is 20,969 million cubic meters and the net deficit is -11,101 million cubic meters which is required to meet the needs of both countries.34 There is no doubt that a large area of India is relatively arid and a mechanism for allocating scarce water is critically important for health, agriculture and industry.
Indian constitution bifurcated powers between the centre and the sates for water development and management. In Entry 56 of the Union list, the centre is given the power to develop trans-boundary waters and in Entry 17 of the State list, each state is given the power to develop waters within its own boundaries. Therefore, it reveals the fact that state governments dominate the allocations of river waters in India.36 The state governments of India, particularly Bihar, have grievances that the central government has sacrificed its interest in the 1996 Ganges Water Treaty with Bangladesh.37
Since rivers cross boundaries, inter state diversions and interstate conflicts are inevitable. All these are understandable and are internal problems of India. Given these facts, India signed the transboundary water agreement with Bangladesh and it has undertaken the responsibility of regulating upstream uses.38 At present, respecting treaty
Graham P. Chapman, "The Natural and Human Environment of the Ganges-Brahmaputra-Meghna Basin" in Surya P. Subedi, ed. International Watercourse Law for the 21s' Century The Case of the Ganges Basin (Alder shot: Ash gate Publishing limited, 2005) 119 at 139. 35 Doglas Hill, "Boundaries, Scale and Power in South Asia" in Devleena Ghosh, Heather Goodall & Stephanie Hemeiryk Donald eds. Water Sovereignty and Borders in Asia and Oceania (London • Routeledge, 2009) 87 at 93. 36 Alan Richards & Nirvikar Singh, "Interstate Water Disputes in India: Institutions and Policies" Department of Environmental studies & Department of Economics, University of California, Santa Cruz, October 2001). Online:
This has led India to develop its regional hegemony.
Given the rising needs of all riparian countries, there is a consensus that augmentation of the Ganges flow is the only solution. Towards this end, Bangladesh proposed augmentation by building a series of storage and dams in Nepal, while India offered the link canal proposal- a 200-mile long canal connecting the Brahmaputra with the Ganges. Bangladesh rejected the proposal as it was legally unjustifiable, technically impracticable and economically and ecologically disastrous.40
The Indian proposal was not acceptable to the Bangladesh government on the grounds that the diversion of the Brahmaputra water during the lean months would cause adverse effects on its downstream and the excavation of a link canal through Bangladesh
iv Supra note 23 at 181. 40 Ashok Swain, "Conflicts Over Water: The Ganges water Dispute" (1993) 24 Security Dialogue 429 at 431. 142 would cause serious problems in Bangladesh, such as a large scale displacement, water logging and division of one country into two by huge water barriers. In addition, it will destroy a huge cultivable land of Bangladesh.41 India rejected the Bangladesh proposal on the grounds that it strictly intends to keep the matter bilateral and Nepal's inclusion in the arrangement would ruin the bilateral principle of India.
The Indian proposal is considered by Bangladesh as the demonstration of its diplomatic maneuvering and political hegemony. No matter what kinds of controversies exist between India and Bangladesh, the real solution of the Ganges dispute lies in the agreement of augmentation of the flow and not in the agreement of sharing water. Since
India is extracting water at the upstream and further diverting water at Farakka and depriving Bangladesh from equitable utilization, augmentation is primarily a greater responsibility for India than Bangladesh. Bypassing the augmentation issue in the name of the involvement of a third-party (Nepal) has appeared to be an unwise decision and a political ploy of India. Instead of augmentation, India signed several bilateral accords with Bangladesh.
The 1977 agreement provides a guarantee clause for Bangladesh which guaranteed 80% of the available flow of water at the Farakka for Bangladesh during the
41 The total area of Bangladesh is 55,5,98 square miles which is even smaller than any large Indian province. Therefore, Bangladesh can not hold the stakes of the link canal. 42 Dilara Chowdhury, "India-Bangladesh Relations: From Euphoria to Pragmatism" (1989) 17, Regional Studies at 46. 43 Salman M. A. Salman, "Co-management of Resources: The Case of the Ganges River" (October 1998) . Online:
Memorandums of Understanding (MOU) in 1982 and 1985 and a 30 year long treaty in
1996, where India tactfully omitted the guarantee clause. Apart from this, India further
exercised its hegemonic influence regarding the signing of the Ganges agreement.
General practice in the treaty law is that an existing treaty is either extended or renewed
or a new treaty/agreement/MOU replaces the old treaty before the expiration of the previous one. In the case of the Ganges Treaty, after the expiration of the last MOU in
May 1988, India did not sign any legal instrument with Bangladesh until 11 December
1996 despite considerable diplomatic efforts from Bangladesh including the summit
diplomacy between the two countries in 1992 and 1993. In the absence of any agreement,
India unilaterally withdrew most of the water, causing unprecedented reduction of flow
during the long eight years (1988-1996). As a consequence of the Indian diversion to the
full capacity of the feeder canal, the flow of the Ganges in Bangladesh reported to be
9761 cusecs, the lowest since the feeder canal was commissioned in 1975.45 This is a
classic example of Indian power politics over the control of the Ganges water.
Surprisingly in 1996 when the pro-Indian Bangladesh Awami League (BAL) government was voted to power, India signed a 30 year long Ganges Water Treaty with Bangladesh. The reason behind this tricky diplomacy was that India did not want to sign the accord with the anti-
Article II (n) states " if during a particular 10 day period the Ganges flow at Farakka comedown to such a level that the share of Bangladesh is lower than 80 percent of the value shown the release of waters to Bangladesh during that 10 day period shall not fall below 80 percent of the value shown " see, the Text of the 1977, Indo-Bangladesh water accord, in B M Abbas, A T The Ganges Water Dispute (Dhaka The University Press limited, 1984) at 95 45 %?ra note 33 at 169 144 Indian Khaleda government, the way Bangladesh intended India signed the accord with the
Hasina government, because the agreement was concluded the way India wanted46 India's preferential treatment to the BAL simply implies that it prefers relations with a particular party more than that of a country Similarly India exercised its hegemony regarding the construction of the THD At the outset of the THD, serious mass protests against the dam grew in Bangladesh and the Prime Minister of Bangladesh, Sheikh Hasina raised the issue to the Indian Prime Minister,
Manmohan Singh in January 2010 in a summit meeting m Delhi India surpassed the issue with only a verbal commitment that it would cause no harm to the vital national interests of
Bangladesh 47 However, India still did not abandon the project formally
Furthermore, although temporarily halted, India has pledged to go ahead with the ILR project, despite having genuine grounds for its disastrous impacts on Bangladesh The Indian policy makers and intellectuals try to rationalize the project on the grounds that it will meet the rising water demands of India in agriculture, flood control, drought management, industrial production, hydro power, employment and economic growth However, India does not consider
Based on my conversation with Professor S D Mum,(a Key Indian expert on South Asian affairs) in a workshop en titled Sources of Conflict in South Asia in Kendy , Sri Lanka , organized by the Regional Centre for Strategic Studies(RCSS) during 6-16 March 1997
Sadeq Khan, "Only lip-service Dhaka's Security Concerns Unaddressed" Holiday [Bangladesh] (15 January 2010), Implementation of the Tipaimukh dam will disastrously dislocate 30 million people, contribute greatly to the climate change and create possible danger of earth quake, because the dam is being built in high seismic area India is aware about all these effects It has the experience of building approximately 4,300 dams by 1994 See P Bosshard, "World Bank Lessons Not Learntt" cited in Supra note 31 at 96
48 Ahsan Uddin Ahmed, "Living in Downstream Development in Peril" in M Mmomrul Qader Mirza, Ahsan Uddin Ahmed & Qazi Kholiquzzaman Ahmad eds Interlinking Rivers in India Issues and Concerns (London CRC Press, 2008) at 153-166, 49 G Satyanarayana, M N Raghavulu & M Reddi Ramu, "Interlinking Rivers in India" in K Nageswara Rao ed Water Resources Management Realities and Challenges (New Delhi New Century Publications, 2006) 1 at 1-10 M G Basava Raja et al, "Interlinking Rivers Project" in K Nageswara Rao ed Water 145 that it will inflict murderous impacts on Bangladesh at the same rate Indian attitudes reflect its political and diplomatic chauvinism and visible contrast with international law that govern the utilization of common rivers to ensure reasonable and equitable shares of water for all riparian countries There are two vital factors that lead Indian hegemonic policy over Bangladesh and other South Asian countries These include Indian superior national power and Indian power politics in South Asia
1.3. Indian Superior National Power:
India exclusively dominates the political geography of South Asia It constitutes 72% of the territorial area, 77 % of the population and approximately 78% of the region's natural resources 50 It is a country of approximately 1140 million people compared with 166 million in
Pakistan and 160 million m Bangladesh51 Its population is seven times bigger than that of
Pakistan or Bangladesh52 The Indian annual percentage of real gross domestic product (GDP) is
6 4% in 2010, while it is 5 4% in Bangladesh and 3 0% m Pakistan 53 In 2008 India's total world trade was 3 74 times higher than five South Asian countries together, while it was 7 48 times higher than Pakistan which is next to India and 13 67 times higher than Bangladesh 54
Resources Management Realities and Challenges (New Delhi New Century Publications, 2006) 86 at 86- 97 50 Vernon Hewitt, The New International Politics of South Asia (Manchester Manchester University press, 1997) at 19 5lThe World Bank, Key Development data and Statistics Online
regional trade with South Asian countries in 2002, 2005 and 2008. India's export led regional trade has created its regional economic hegemony as well as fear of Indian economic aggression
in the region. In short, India is seen by neighbors as a threat to their security. Baral, branded India as a "SHARC" within SAARC.56 On the other hand, Bahree finds, "nearly every day, in the
Pakistani media there is either an article or an opinion piece blaming India for something, anything, and everything."57 Apart from this, Indian military expenditures m 2008 were US
$30030 million compared to Pakistan's US $4769 million and Bangladesh's US $901 million.58
Table 13 (appendix) indicates that India's military spending is over 6 times higher than Pakistan, and over 33 times higher than Bangladesh. In 2007 the military expenditure of India was 2.5% of the GDP, while it was 3.1% of Pakistan and 1.1% of the Bangladesh GDP.59
India has the fourth largest army in the world after the US, China and Russia. In South
Asia the size of the Indian armed forces is more than twice as much as Pakistan and more than eight times greater than Bangladesh.61 Aside from this, India is not only a member of the nuclear
55 Holiday [Bangladesh] "Editorial" (July 23, 2010) 56 Lok Raj Baral, "SARQButNo "SHARC"- South Asian Regional Cooperation in Perspective" (1985) 58, Pacific Affairs 4\\ at 425. 57 Megha Bahree, "Showdown on the Subcontinent" (2009) World Policy Journal 41 at 46 58 SIPRI Year Book 2009 (Oxford Oxford University Press, 2009) at 235 59 Ibid at 241 60 Online http //www globalfirepower com> 61 The total number of active armed forces of India is 1325,000 (Army 112,9900, Navy 58,350, Air Force 127,200, Coastal Guard 9550 and Paramilitary 1300,586, Pakistan total active armed forces 617,000 ( army 550 000, navy 22000 , air force 45000 and paramilitary 304000, Bangladesh total active armed forces, 157,0 53( army 126,153, Navy 16,900, Air Force 14000 and Paramilitary 63,900), Sri Lanka total active armed forces, 160,900 (Army, 117,900, navy 15000, air force 28000 and paramilitary 62,200 ) and 147 South Asia, but also it is the only country m the region that launched its first nuclear-powered
submarine m 2009, joining an exclusive club that includes the US , Britain, France, Russia and
China 62 Nevertheless, India has successfully emerged as the largest democracy with one of the
largest economies in the world with a middle class of 200 million people.63 India has surpassed
the other South Asian countries with its economic and military capabilities India's relative power
vis-a-vis other countries of the region, gives it regional power 64 Indian possession of hard power
which connotes the military and economic capacities in the neo-realist approaches65 upgraded its position to regional power /regional hegemony
1.4. Indian Power Politics toward South Asian Countries
India's foreign policy towards its neighbors rests on the realist approach It recognizes the
Machiavellian principle of Raison d'etat, which connotes that the state must precede all other
considerations. The Indian policy is further influenced by the Bismarck's famous theory of realism "the great questions of our time will not be settled by resolutions and majority votes but by blood and iron." 67 The Indian army took control of Junagadah m 1947 Similarly in 1948,
India invaded Hyderabad and annexed Jammu and Kashmir by dint of its superior military
Nepal total active armed forces, 95,753, (army, 95,753 and paramilitary 62000 [The number of paramilitary of every state is in addition to the total number of the active armed forces] See, The Military Balance 2010 (London IISS 2010) at 33-76 Online pubhcationdate 03February2010 Availableat URL
India was committed to non-interference and dialogue 69While pursuing its foreign policy towards its neighbors, India chooses bilateralism to deal with weaker South Asian countries so that
"India's advantages in power could ensure outcomes consistent with New Delhi's interests "70
The India Doctrine states
No South Asian government must ask for extensive military assistance with an anti- Indian Bias If a South Asian country genuinely needs to deal with a serious internal conflict it should ask for help from neighboring countries including India 7I
In the post-Cold War milieu, the "malign 'hegemon' of the 1980's tried to turn into a benign 'hegemon' in the 1990's for accruing greater advantages, because its hard power approach sometimes did not work well Indian Inter-state relations in South Asia and recent strategic partnership with the US strengthened its hegemony both structurally and functionally Regarding
Bangladesh, Baxter writes
Bangladesh is indeed weak by any measure, be it economic, military or political development Further, this weakness is accentuated by its location next to India, a country that is often unfriendly and at odds with its weaker neighbor whose land boundary is almost entirely with India 72
Christopher Snedden, "Would a Plebiscite Have Resolved the Kashmir Dispute''" (2005) 28 South Asia Journal of South Asian Studies 64 at 71 69 Vernon Hewitt, Supra note 50 at 20 70 Devm T Hagerty & Herbert G Hagerty, "India's Foreign Relations" in Devm T Hagerty ed South Asia in World Politics (Oxford Brown and Littlefield Publishers, Inc 2005) 11 at 33 71 Bhabani Sen Gupta, "The Indian Doctrine" India Today 31 (August 1983) 72 Craig Baxter, "Bangladesh's Foreign Relations" in Devin T Hagerty ed South Asia in World Politics (New York Brown and Littlefield Publishers, Inc 2005) 71 at 71 149 Immediately after the independence of Bangladesh, India showed its hegemony in the "Twenty-
Five Years Treaty of Peace, Friendship and Cooperation," which was signed in Dhaka on March
19, 1972 73 Many observers feared that it would establish Indian hegemony and India would use the treaty as an excuse for intervention in Bangladesh 74 Further more, the Indian army captured and confiscated a huge quantity of arms and ammunitions left by the 93000 surrendering Pakistan army in 1971 75 India also supported the outlawed Shanti Bahini (Rebels) of the Chittagong Hill
Tracts in order to destabilize the internal situation of Bangladesh These unfriendly actions of the large embracing India posed a threat to the independence of Bangladesh 77
The Indian occupation of the Purbasha Island (New Moore Island) emerged in the territory of Bangladesh,78 the Indian Border Security Force's frequent crossing of the territory of
Bangladesh, killing of innocent civilians, Indian withdrawal of the Ganges water through the operation of the Farakka barrage and its disastrous effects on Bangladesh and Indian unilateral decision to undertake the ILR and the THD projects, detrimental to the economy and ecology of
Bangladesh are clear indications of the Indian hegemony In his book, the Jamdani Revolution, the former Indian Foreign Secretary and High Commissioner to Bangladesh Knshnan Snnivasan writes
15 Supra note 50 at 50-51 74 Moudud Ahmed, Era of Sheikh Mujibur Rahman (Dhaka The University Press Limited, 1983) at 187 75 Moulana Bhasam the veteran nationalist leader claimed that smuggling and confiscation of goods transferred to India by the Indian army accounted to a total approximately TK 6000 crores See, Moudud Ahmed, South Asia Crisis of Development (Dhaka The University Press limited, 2002) at 150 76 Zaglul Haider, The Changing Pattern of Bangladesh Foreign Policy A Comparative Study of the Mujib and Zia Regimes (Dhaka The University Press Limited, 2006) at 48-51 77 W Howard Wnggins, "South Asian Regional politics Asymmetrical Balance or One-State Dominance'?" in W Howard Wnggms et al, Dynamics of Regional Politics Four Systems on the Indian Ocean Rim (New York Columbia University Press) 91 at 121 78The New Moore Island emerged m the mouth of Hanya Bhanga river near the Sunderbans one of the numerous rivers of the Ganges Delta, see, Gower Rizvi, "The Role of the Smaller States m the South Asian Complex" in Barry Buzan and Gower Rizvi eds South Asian Insecurity and the Great powers (London McMillan publishers, 1986) 127 at 135 150 The political will and attention span have been lacking m New Delhi...In other words, the Indian government has tended to allow the hard liners and Hindu chauvinists to set the agenda for its policy towards Bangladesh, when a more rational approach would have been to come to some understandings on Dhaka's agenda 79
By the humiliating defeat to Pakistan in the 1971 War and the creation of Bangladesh,
India established its regional supremacy. India further consolidated its regional position by signing the Indo-US strategic partnership in 2005,80 which provided a virtual US endorsement to
Indian actions m South Asia and engendered the vulnerabilities of other south Asian countries.
The Indo-Sri Lanka peace agreement of 1987, under which Sri Lanka conceded India's role in its internal affairs, clearly established its domination over Sri Lanka. Hagerty describes the situation as:
The Indian army was charged with enforcing a 'cessation of hostilities' between Tamil militants and Sri Lankan army and in exchange the Colombo Government agreed to respect New Delhi's regional management role and to refrain from allowing extra regional powers to intervene in conflict.81
Considering Nepal's strategic importance to India it has sought to develop a "special relationship" with Nepal. The agreements signed in 1950: the "Treaty of Commerce and Trade," and the "Indo-Nepali Treaty of Peace and Friendship" are the bases of these special relations.82
The Treaty of Friendship underscores that, 'neither government shall tolerate any threat to the
Knshnan Snnavadan, The Jamdani Revolution Politics, Personalities, and Civil society in Bangladesh, 1989-1992 (New Delhi: HarAnand publications, Pvt Ltd. 2008) at 424, cited in Harun ur Rashid, "Aiyar's Dhaka Visit: His Message Ignores Some Ground Realities" Holiday [Bangladesh] (July 23, 2010). 80 T V. Paul and Mahesh Shankar, "Why the US-India Nuclear Accord is a Good Deal" (2007) 49 Survival 111 at 116. Supra note 70at 34 82 Shaheen Akhter, "India and South Asia. An Analysis of Hegemonial Relationship" (1996) 11 Regional Studies at 77 151 security of the other by a foreign aggressor.' In the 1980's India asserted its regional hegemony
by exercising its economic muscle on Nepal. It imposed a virtual trade blockade in April 1989 by
closing 15 out of 17 transit routes between the two countries The Indian economic blockade,
which severely damaged Nepal's economy continued for 15 months and ended in June 1990.
Similarly under the Mahakah Treaty, the generated electricity is to be sold out to India, the only
buyer of surplus power m the region. However, fears have been expressed that Nepal will not be
able to obtain its fair price from India for its electricity export.
The kingdom of Bhutan is also under the umbrella of Indian defense and foreign policy.
Under the 1949 Agreement, India acknowledges the sovereign independence of Bhutan and at the
same time the government of Bhutan agrees to be guided by the advice of the government of India
in regard to external relations.87 Bhutan's external relations with China or any other country is
under close Indian observation, because the influence of China or any other external power in
Bhutan may threaten the Indian hegemony.
In the wake of an abortive coup against President Mammon Abdul Gayoom in 1988,
India very promptly sent 1600 Para Troopers to the Maldives, supported by three warships under
India's southern naval command.88 By its Maldives operation, India established its regional
supremacy and proved its ability to remove insecurity and instability of smaller South Asian
countries
3 Supra note 78 at 144 84 Zaglul Haider, "Crises of Regional Cooperation in South Asia" 2001(32) Security Dialogue 423 at 428- 429 85 Dipak Gyawali, Water in Nepal (Kathmandu Himal, 2001) at 53 86 %?ranote56at414 87 Supra note 78 at 147 88 Zaglul Haider, "Indian Hegemony and the Security of Bangladesh SAARC Perspective" (1990) 3 Journal of Bangladesh Political Science Association 220 at 234 152 Conclusion:
Under the above circumstances, it is evident that regarding the transboundary water and environmental resources sharing with Bangladesh, India violated the governing principle of
'reasonable and equitable use' of the international watercourse It happened partly because of the intrinsic weakness of international law to enforce on a strong state like India and mainly due to
Indian unwillingness to comply with the international law and the use of hegemonic influence or power politics over small neighbors Indian national power including its size, economy, polity and military strength has awarded it a preeminent position that it can easily afford to defy the obligations to cause no significant harm89 to other riparians
Regarding Indian power politics, the Chinese People's Daily comments
Nobody can deny that today's India is a power A previous victim of colonialism and hegemony started to dream about developing its own hegemony Obsessed with such mentality Many Indians didn't know that Jawaharlal Nehru, the first Prime Mmister of India, had once said that India could not play an inferior role in the world, and it should either be a superpower or disappear Although the pursuit of being a superpower is justifiable the dream of being a superpower held by Indians appears impetuous To everyone's disappointment, India pursued a foreign policy of "befriend the far and attack the near" India, which vows to be a superpower, needs to have its eyes on relations with neighbors and abandon the recklessness and arrogance as the world is undergoing earthshaking changes 90
Tnlochan Upreti, "Equitable Utilization of Nepalese Water Resources Bilateral and Regional Perspectives" in Surya P subedi ed Internatinal Watercourses Law for the 21s' Century The Case of the River Ganges Basin (Aldershot Ashgate, 2005) 221 at 231
90 "Indian hegemony continues to harm relations with neighbors" (Editorial) People s Daily [China] (14th October 2009), Online < http //posts people com cn/bbs_new/filepool/htdoc/html/0f03e2cf5d9> 153 There is nothing wrong in the Indian ambition to be a great power Diplomatic history reveals that the "rise and fall of the great powers are the characteristics of international politics." '
Among the regional and middle power states, India is unparallel in any indicators of power92 But the problem is that it acts like a reckless hegemon. India tied all South Asian countries under
similar conditions In every case the Indian interest was safeguarded and the interests of the partners were undermined 93
The Indian approach towards the dissolution of the Indo-Bangladesh water and environmental disputes reflects such power politics. Its unilateral construction of the Farakkah barrage and the withdrawal of water at the upstream are ruining the one third of the Bangladesh economy and affecting millions of people. These are the indications of a gross violation of the principles of 'reasonable and equitable utilization' and 'no harm' obligation of international law.
Again Indian failure to fully comply with the 1996 mdo-Bangladesh Water Accord and continuous failure to release the actual quantity of water to Bangladesh as indicated in the treaty, 4 unilateral constructions of the THD without an agreement with Bangladesh95 and the planned ILR project further demonstrate its non-compliance to treaty laws which is the principal source of
91 Paul Kennedy, The Rise and Fall of the Great Powers (New York Random House, 1987) cited m Baldev Raj Nayar & T V Paul, India in the World Order Searching for Major-Power Status (Cambridge Cambridge University press, 2003) at 7 92 Ibid at 63
93 The Indo Bangladesh Friendship Agreement of 1972, the Indo-Nepal Friendship Agreement of 1950, the Indo-Bhutan Agreement of 1949 and the Indo -Sri Lanka Agreement of 1987 were clearly dominated by Indian Influence 94 Article II, indicative schedule at annexure II states Every effort would be made by the upper riparian to protect flows of water at Farakka as in the 40 years average availability " See, The 1996, Ganges Water Sharing Treaty, in M Momrul Qader Mirza ed The Ganges Water Diversion Environmental Effects and Implications ( London Kluwer Academic Pubhshers2004) at 346-355 95 Article 9 of the 1996 Treaty states "Guided by the principles of equity, fairness and no harm to either party, both the Governments agree to conclude water sharing treaties/ agreements with regard to other common rivers See Ibid 154 international law Indicating the Kosi Project Agreement 1954, the Gandak project agreement
1959, and the Mahakah agreement 1996, Upreti, a Nepali scholar argues
In essence she (India) never follows the principle of equitable utilization and the "no harm rule", rather she has always behaved against the notions of these norms, and also against the existing trend currently adopted even in interstate disputes within India Several diplomatic initiatives have been made by Nepal and notes have been sent to India, also negotiations were held to wipe out such illegal acts, but no tangible result has so far been achieved
The Indian actions are based on the Harmon doctrine which means that the rules, principles and precedents of international law impose no liability or obligations upon the upstream countnes97 However, this theory is totally unacceptable in international law Indian forcible and unlawful withdrawal of waters at the upstream and their utilization in its own interest are detrimental to the interest of Bangladesh and this can not be considered less harmful than environmental terrorism 98
96Tnlochan Upreti, "Equitable Utilization of Nepalese Water Resources Bilateral and Regional Perspectives" in Surya P Subedi ed International Watercourse Law for the 21s' Century (Aldershot Ashgate Publishing Company, 2005) 221 at 231 97 Dante A Caponera, Principles of Water Law and Administration National and International (Rotterdam, Netherlands A A Balkema Publishers, 1992) at 212 98 Environmental terrorism is "the unlawful use of force against environmental resources or systems with the intent to harm individuals or deprive populations of environmental benefits in the name of a political or social objective " See Peter H Gleick,"Water and Terrorism" in Peter H Gleick et al The Worlds Water The Biennial Report on the Fresh Water Resources (London Island Press, 2006) lat 4 155 Chapter: 5
Conclusion: The Best Strategy for Bangladesh
This study reveals that the governing law regarding the transboundary water and environmental resources is the principle of reasonable and equitable utilization. Neither the absolute territorial sovereignty theory nor the absolute territorial integrity theory is acceptable in international law. Reasonable and equitable utilization does not mean equal share of water between the upstream and down stream countries. Rather it implies the equal rights to use and utilize the water resources by both the upstream and the downstream countries. International law governs the use and utilization of transboundary rivers in order to ensure an equitable apportionment of water for the co-riparian countries.
It further affirms that the use and utilization of water by any riparian country will not cause any significant harm to the use and utilization of water of the other riparian countries. In the French Nuclear Test Case between Australia and France ( 1973), the ICJ in its interim order asked France not to carry out its atmospheric nuclear testing in the
Pacific in a manner that caused the radio-active fall-out in the territory of Australia ( and
New Zealand).1 Similarly in the Donauversinkung case (Barden v. Wurttemberg), the
Court held that:
When utilizing an international water course in its territory every state is bound by the principle springing from the idea of the community of nations based on international law that it may not injure another member of the international community. Due consideration must be given to one
Nuclear Test Cases {Australia v France), Request for the Indication of Interim Measures of Protection, [1973] ICJ Rep. 99. Online :< httpV/www.lfip.org/laws 666/nuclear.htm> .
156 another by the various states which have a watercourse in common No state may substantially impair the use of a water course made possible by nature, by another state 2
International law recognizes the principle of polluter pays in order to prevent a significant harm by one riparian country to another. The polluter pays principle is enshrined in the case concerning the Gabcikovo-Nagymaros project, where the ICJ verdict says: Hungary is entitled to compensation for the damage sustained as a result of the diversion of the Danube.3 The principle of polluter-pays is also recognized in the case concerning transboundary damage caused by the pollution of Rhine by salt. In a case against France, the Dutch public agencies ultimately recovered an award of 2 million
French francs in damages from the Paris Court of Appeal in October 1990.4 The principle is also recognized in the 1997 United Nations Convention on the Law of the Non-
Navigational Uses of International Watercourses and the ILA, Berlin Rules on Water
Resources Law (2004).5 Apart from this, the reasonable and equitable utilization theory further endorses the sustainable and optimum development of the water and
J.G Lammers, Pollution of International Water Courses (The Hague: Martmus Nijhoff Publishers, 1984) at 434. 3 Case concerning Gabcikovo-Nagymaros project (1997), ICJ Reports 7, paras 152-53.Quoted m Philippe Sands QC, Principles of International Environmental Law (Cambridge. Cambridge University Press, 2003) at 476 4 Owen Mclntyre, Environmental Protection of International Water Courses under International Law (Alder shot- Ash gate, 2007) at 351. 5 Article 32 of he 1997 Water Course Convention states: "... a watercourse state shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on its territory " See the United Nations Convention on the Law of the Non-Navigational Uses of International Water courses, in UN Doc A/RES/51/869,21 May 199736 ILM 700(1997) Similarly Chapter XII, Article 71 of the International Law Association's (ILA) Berlin Rules on Water Resources Law provides. 'States shall not discriminate on the basis of the nationality or residence of the person claiming damage or the place where damage occurred or may occur.' See ILA, Berlin Rules on Water Resources, at
157 environmental resources, it incorporates the principles of data sharing (Chapters 1 and 2 of this thesis).
Regarding the sharing of the Indo-Bangladesh water and environmental resources, this study further establishes the fact that at first Indian unilateral construction of the
Farakka barrage over the international river, the Ganges and the diversion of water at the upstream in order to keep the Calcutta port navigable caused significant harm by affecting
33% of the 150 million population of Bangladesh. As a sequel, one third of the
Bangladesh economy, particularly agriculture, industry, flora and fauna of the
Sunderbans have been periled. Again it caused adverse effects on the navigation, river morphology, ecology, environment and in the long run it will contribute badly to the climate change in Bangladesh. This damage caused by the Farakka barrage is clearly a violation of the principles of reasonable and equitable utilization and no significant harm.
In addition to this, defying the Ganges Water Sharing Treaty (1996), India's upstream withdrawal and failure to release the water to Bangladesh as indicated in the treaty do not demonstrate its compliance to international law. India has been continuously depriving
Bangladesh from its due share of water for the last 13 years out of 14 years of the existence of the Ganges Treaty and it is a sheer breach of the treaty which is the principal source of international law (chapter 3).
India recently commenced the Tipaimukh Hydraulic Dam on the international river, Barak is further posing a significant threat to the livelihood of another 40 million people of the north eastern part of Bangladesh. It will further jeopardize the ecology and the environment and contribute enormously to the climate change in Bangladesh. Finally
158 the Indian government's own decision to interlink 30 common rivers in order to divert waters from one end of India to another and to irrigate the desert areas of India posed a threat to the existence of Bangladesh. Indian unilateral actions and construction of massive structures on the common international rivers without prior agreement with the downstream country clearly violates the governing principle of international law regarding the distribution of transboundary water and environmental resources (chapter3).
Besides, this study finds that a number of factors, such as intrinsic weakness of the international law to enforce it on a strong state like India, Indian realist policy
(power politics), economic and military powers to carry out this policy and Indian strategic partnership with the US (which gave it new endorsement to power politics), are responsible for its non-compliance to international law, regarding the use and utilization of common water and environmental resources with Bangladesh (chapter 4).
Given this situation, what is the rational or the best strategy for Bangladesh?
Obviously, a peaceful settlement is the best strategy to deal with a strong neighbor, India.
Article 2(3) of the United Nation's Charter provides that, "All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered."6
India's preferred means of conflict resolution is bilateralism, which means that
India wants to directly negotiate with Bangladesh without the involvement of any third party and settle the disputes. Since the birth of Bangladesh, both countries adopted the
6 Article 2(3), the Charter of the United Nations.
159 policy of bilateralism for conflict resolutions. Unfortunately, bilateralism failed to protect the interest of the weak Bangladesh vis-a-vis India. Bilateralism works well only between the two friendly states or between the equally strong states. It is difficult to work between the two unfriendly or unequal states. In such hostile situations, bilateralism can only protect the interests of a strong state over a weak state because of the latter's weak political, military, economic and bargaining powers. Unequivocally the same thing has been happening in the case of the Indo-Bangladesh dispute resolution.
In spite of all the disadvantages of bilateralism, Bangladesh did not adopt a multi lateral approach, because it did not want to irritate the giant neighbor, India by pursuing a policy what it disliked. Ultimately, the policy of Bangladesh did not work well. The friendly gesture of Bangladesh was considered as weakness and it was misjudged and exploited by its neighbor.
Pro-longed mistrust and misunderstanding made a hostile relationship between the two neighbors. Moreover, India's uninterrupted violation of a bilateral treaty regarding the apportionment of the Ganges water and construction of the Tipaimukh dam turn bilateralism into unilateralism. In the name of bilateralism, India breaches the existing treaty unilaterally. As a consequence, bilateralism with India acts as a zero-sum game for
Bangladesh. It fails to create a win- win situation for both of the countries. In effect, bilateralism has become a principal obstacle for the settlement of the Indo-Bangladesh
160 water and environmental disputes.7 It promotes the Indian division and domination policy against the unity of the small neighbors. Rose describes:
As defined by India, the South Asian system would function through the greater coordination of India's bilateral economic relations with the other regional states; any substantial integration of the economies of the other states (e.g., Pakistan and Sri Lanka or Nepal and Bangladesh) or any use of multilateral approach to regional economic issues (e.g., the river system of Nepal, Bhutan, Bangladesh and India) should be discouraged.8
In the context of the failure of bilateralism, a third party settlement may be considered as the best alternative strategy for Bangladesh to make the dispute settlement process a win-win situation. A third party settlement or a multilateral agreement is not only the most common methods, but also it is seen by many as an ideal method for a just and effective settlement. The merit of a third party settlement is that it involves a wider array of parties in the discussion which can be seen as more fair and can also have greater ability to enforce agreements. The comparative advantage of a third party settlement over bilateralism is that international exchanges can not be generated in bilateralism, but it is feasible in multilateralism or a third party settlement. Besides, conflicts which easily descend into a zero-sum discussion can be avoided in a third party settlement and finally reliable information can be generated.9
7 Ben Crow & Nirvikar Singh, "Impediments and Innovations in International Rivers: The Waters of South Asia" 2000) 28 World Development 1907 at 1910 8 L. Rose, "India's Regional Policy: Non-military Dimensions" m S.P. Cohen ed. The security of South Asia American and Asian perspectives (Urbana: University of Illinois Press, 1987) quoted in ibid at 1910. 9 Ben Crow & Nirvikar Singh, "The Management of International Rivers as Demands Grow and Supplies Tighten: India, China, Nepal, Pakistan, Bangladesh" (2009) 18 India Review 306 at 327-328.
161 The eight year long Iran-Iraq War ended when both parties accepted the UN
Security Council Resolution 598, leading to a cease fire.10 The UN Secretary-General and his special representative Olof Palme used their good offices to find a solution. The UN
Secretary-General also used his good offices in order to settle the Cyprus dispute. The
Secretary-General appointed Ambassador Galo Plaza of Ecuador as a mediator.
Ambassador Plaza submitted his report with the conclusion that the islanders themselves
1 7 should determine their future. But Turkey immediately rejected it. Although unsuccessful, it was an important precedent of the third party mediation effort.
The Kargil War (1999), between India and Pakistan ended with the defacto mediation of the US President Bill Clinton.13 The US-China rapprochement in 1971 was mediated by Pakistan, because Pakistan was the only trusted friend of China through which the US could maintain its relations. The UN Secretary-General's personal representative Diego Cordovez, played a crucial role in settling the conflict between
Afghanistan and Pakistan. His mediation came to a successful end of the conflict in 1988, leading to the subsequent withdrawal of the Soviet forces from Afghanistan .
Third parties can act as mediators as well as information brokers. They have access to private as well as public information and they have the ability to directly
10 Online
162 intervene in conflicts.15 The tasks of the third parties are to promote the process of transition from conflict to cooperation. Their goal is to provide bridges of communication at all levels, from personal to governmental, so that there is physical and political reconciliation involving all parties in conflicts.16 Third Party settlement ranges from good office/mediation to arbitration /adjudication. Chapter VI, Article 33 of the Charter of the
UN prescribes the methods of pacific settlement. Article 33 reads:
The parties to any dispute shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or arrangements or other peaceful means of their own choice 17
The 1985 Convention for the Protection of the Ozone Layer, the 1987 Montreal
Protocol on Substances that Deplete the Ozone Layer, the 1992 Convention on Biological
Diversity and the UN Framework Convention on Climate Change have adopted with
1 R universal support to the compulsory third-party dispute settlement mechanism.
When declaring the UN Decade for International Law (1990-1999), the United
Nation's General Assembly (UNGA) identified the promotion of peaceful settlement of disputes between states, including 'resort to and full respect for the International Court of
Charles Boehmer, Erik Gartzke &Timothy Nordstrom, "Do Intergovernmental Organizations Promote Peace''" (2004) 57 World Politics 1 at 12 16 Michael Harbottle, "The Strategy of Third Party Interventions in Conflict resolution" (1979-80) 35 International journal 118 at 131 17 Article 33(1), the Charter of the United Nations 18 Of these the most detailed provisions can be found in the context of the ozone layer Article 11 of the convention provides that when parties can not settle their dispute through negotiation or with the help of good offices or mediation of a third party, they shall submit the dispute to conciliation But if both parties accept the compulsory arbitration and submit the dispute to the ICJ and both parties choose the same procedure, the dispute will be referred to this procedure On 31st December only 5 of 133 parties (Finland, The Netherlands, Norway, Sweden, and European community) made a declaration under article 11 See, Marcel M T A Brus, Third Party Dispute Settlement in an Interdependent World Developing a Theoretical Framework (London Martinus Nijhoff Publishers, 1995) at 39
163 Justice' as one of the principles of international law.19 Therefore the principle of peaceful settlement of disputes, especially the third party settlement between states has become the character of jus cogens (compelling law) which is the fundamental principle of international law, accepted by the international community.21 In the regional level the
Conference on Security and Cooperation in Europe (CSCE), especially the Stockholm
Convention on Conciliation and Arbitration within the CSCE accept conciliation as a compulsory method for dispute settlement. Arbitration has become compulsory for parties which have made a declaration to this end.22 The convention came into force on
December 5, 1994 upon the ratification of accession by 13 mainly Western European states. So far Denmark and Sweden have endorsed arbitration as a compulsory method for conflict resolution.23
A comprehensive framework for third party dispute settlement was established in
1991 in the Valetta Convention.24 The 1966 Helsinki Rules prescribe peaceful settlement in Article 27 and adopts third party settlement in Article 32, which states: "...it is recommended that they (states) seek the good offices, or jointly request the mediation of a
19 UNGA Res 44/23 adopted on 17th November 1989, UNDoc A/Res/44/23/at 1(1989), quoted in NIL Lante Wall ace-Bruce, The Settlement of International Disputes The Contribution of Australia and New Zealand (London Martinus Nijhoff Publishers, 1998) at 29 20 Judge Abdul G Koroma, "The peaceful Settlement of International Disputes" [1996] NILR 227,234 and 236 Cited in ibid at 29 21 Despite having the compelling law, Bangladesh initially has not used this option against the will of India in order to maintain bilateral cooperation and regional harmony Later, Bangladesh raised the Ganges water dispute at the Political Committee of the United Nation's General Assembly in 1976, where India expressed her intention to settle the issue bilaterally At the mediation of the Non-Aligned countries, Bangladesh accepted Indian proposal of bilateral settlement Although temporarily it worked, ultimately bilateralism failed As a consequence, a third party settlement or a multi-lateral settlement is left as the only option for Bangladesh 22 Adopted on 15 December 1992 Supra note 18 at 6-7 23 Ibid at 7 24 Ibid at 8
164 third state, or of a qualified international organization or of a qualified person." Third party settlement is suggested by the 1997 United Nations Convention on the Law of the
Non-Navigational Uses of International Watercourses. Article 33 (1) clearly provides provision for the settlement of disputes by peaceful means.26 Article 33(2) recommends third party settlement. It provides
If the parties concerned can not reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediation or conciliation by a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them or 27 agree to submit the dispute to arbitration or to the International Court of Justice
Peaceful settlement and third-party dispute resolution is also adopted by the
International Law Association's Rules on Water Resources (2004 Berlin Rules), in
Articles 72 and 73 of the document.28
Third Party Settlement and Its Methods
Third party settlement is the involvement of a person or an institution in a dispute to act as a facilitator for bringing about a peaceful settlement of that dispute. The third party creates the ground for a lasting solution. The mechanisms of a third party settlement
Articles 27 & 32, the Helsinki Rules on The Uses of the Waters of International Rivers 26 Article 33(1), United Nations Convention on The Law of the Non-Navigational uses of International Watercourses 27 Article 33(2,), United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses
2 Article 72(1) provides the provision for a peaceful settlement and article 73 prescribes third party settlement as a means of peaceful settlement See Article 72 & 73, the International Law Association's Rules on Water Recourses 29 Michael Harbottle, "The strategy of Third Party Interventions in Conflict Resolution" (1979) 35 InternationalJournal 118 at 120
165 include: good offices and mediation, inquiry, conciliation, arbitration and a third party judicial settlement.
Good offices and mediation: They are the primary instruments of a third party settlement.
A third party may be an individual or a group of individuals, a state or a group of states or an international organization, but the central element of this method is that the third party is chosen by the disputants, because the disputants should have confidence and respect for the third party. Good offices mean that the third party is facilitating discussion and agreement by the disputants without the active role of the third party. Mediation involves the active participation of the third party.30 Mediation encompasses good offices and conciliation and excludes conflict prevention or conflict suppression by force. The essence of mediation is persuasion, not coercion.31
Inquiry: Inquiry designates the settlement of disputes by constituting a commission, composed of an equal number of members from each of the disputants plus one from the third state or states which acts to facilitate a solution to the conflict. The main task of inquiry is to find out the facts of a dispute. Its goal is to carry out an impartial investigation. Article 33 of the UN Charter authorizes the organization to create such a commission.
JU Supra note 18 at 40. 31 Supra note 14 at 100. 32 Charles O Lerche, Jr & Abdul A. Said, Concepts of International Politics (New jersey: Prentice Hall ,Inc. 1979) at 145. 33 %?ra note 19 at 120. 34 Article 33, the Charter of the United Nations.
166 Conciliation: It is another method of a third party settlement. Here the role of a third party is to ascertain the facts of a dispute and to suggest possible solutions for the dispute, but the recommended solutions are not binding on the parties.
Arbitration: Article 37 of the 1907 Hague Convention defined arbitration as the settlement for interstate disputes by judges of their own choice and on the basis of respect for the law.36 This definition has been abandoned for a long time. At present in international law, arbitration is the voluntary submission of the dispute to a third party for a settlement by making of an award which will blind the parties.37 It is a legal means of a peaceful settlement leading to a legally binding decision.
Third party judicial settlement/adjudication: It provides the settlement for international disputes by the ICJ of the UN. Although all members of the UN are automatically parties to the statute of the ICJ, states are virtually not compelled to submit their disputes to the ICJ. It is a legal method of a peaceful settlement and its decisions are binding on the disputants. All the bases of jurisdiction in contentious cases rest on the consent of the states. Being a party to statute to the court does not mean that it has given its consent for the case to be brought against it. It also does not mean that it is entitled to bring proceedings against others. Indeed, consent is required for a particular case in
TO advance. The contentious jurisdiction of the ICJ can arise in at least two ways; first, under article 36(1) of its statute, the ICJ has jurisdiction by agreement between the
35 Supra note 19 at 43. 36 Ibid at 62. 37 Ibid at 62. 38 Supra note at 116.
167 disputing parties, either by special agreement where two or more states agree to refer a particular dispute to the ICJ or by a co promissory clause in bilateral or multilateral treaty.
Second, 'under article 36(2) of its statute (the 'Optional Clause') under which parties to the statute may declare that they recognize its compulsory jurisdiction, in relation to other states accepting the same obligation in all legal disputes.
Despite the existence of international law for a dispute resolution, noncompliance to these laws by many countries reveals the fact that although international law is the basis of mutual relations among states, it is largely undeveloped. Moreover, the strong states also have a tendency to abuse the substance of international law to protect their selfish interests, which threatens 'legitimacy, coherence and fairness of the global legal order.'41
Good Offices of a Neutral Third Party: The Best Strategy for Bangladesh
Negotiation is the first step towards a peaceful settlement of an international dispute. International law demands that negotiation will be carried out in good faith and disputants will behave rationally in performing their obligations to reach a solution42
International law also requires disputant states to negotiate in good faith only for a
Philippe Sands, Principles of International Law, 2ne ed (Cambridge Cambridge University Press, 2003) at 214-218 Supra note 12 at 222 Ikechi Mgbeoji, "The Bearded Bandit, The Outlaw Cop and The Naked Emperor Towards A North- South (De) Construction of The Texts and Contexts of International Law's (Dis)Engagement With Terrorism" (2005)41 Osgoode Hall Law Journal 105 at 106 42 M Rafiqul Islam, "The Ganges Water Dispute An Appraisal of A Third Party Settlement" (1987) 27 Asian Survey 918 at 930
168 reasonable time. Bilateral negotiations do not always lead toward peaceful settlements.
In the backdrop of the failure of the bilateral negotiation, international law suggests other means of peaceful settlements. Article 33 of the UN Charter imposed a duty on the member states to seek solution, "by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice"44
The Bangladesh government's policy of bilateralism towards the settlement of the
Ganges dispute has proved unsuccessful. Bilateralism has turned into a zero- sum game.
In most of the time bilateralism turned into unilateralism where the national interest of
Bangladesh was undermined and India clearly reaped the benefit. For example, despite the treaty obligations, India's construction of the THD and the decision to construct the
ILR project are the infringements of treaty laws with Bangladesh. Article 9 of the Ganges
Water Sharing Treaty says that "guided by the principles of equity, fairness and no harm to either party, both the Governments agree to conclude water-sharing
Treaties/Agreements with regard to other common rivers."45 The Indian actions are opposed to the spirit of the 1996 Ganges Water Sharing Treaty and have further posed severe threats to the environment, economy and livelihood of the millions of people.
Given this situation, the best strategy for Bangladesh should be the third party mediation. Both India and Bangladesh should involve a mutually acceptable neutral third
43 C B Bourne, "Procedure in The Development of International Drainage Basins- The Duty to Consult and to Negotiate" (1972) 10 Can Yr Int 7 L 212 at 212. Article 33, The Charter of the United Nations Article 9, Treaty between the Government of the People's Republic of Bangladesh and the Government of the Republic of India on Sharing of the Ganga/Ganges Water at the Farakka
169 party to mediate these contentious issues. The Third Party settlement is a democratic process and works well among the democratic states. Dixon finds that democratic states embroiled in disputes will be more likely than others to achieve peaceful settlements. He proves the hypothesized relationship between democracy and peaceful settlement. Both
India and Bangladesh are democratic states and the prospect for a third party settlement is brighter than any other means.
The third party mediation is chosen as an effective method on the ground that
South Asia experienced third party settlements on several occasions and the results are very effective and fruitful. The Indus water dispute between India and Pakistan was successfully resolved with an accord in 1960 by the active mediation of the International
Bank for reconstruction and Development (IBRD). Again the Tashkent Agreement brokered by the then USSR, successfully concluded the Indo-Pakistan war in 1965 over the Kashmir issue. The settlement of the India -Pakistan land boundary disputes by the
Rann of Kutch Arbitration of 1965 is another important example of a third party settlement in South Asia.
Globally there are available precedents of the third party mediations. Most recently in 2008 in the backdrop of Georgia-Russian war over South Ossetia, France
President Nicolas Sharkozi brokered a successful peace plan between Moscow and Tbilisi.
Against the backdrop of the Russian Force's crossing of the buffer zone (the Russian soldiers were 25 km away from the Tbilisi), President Sharkozi, who held the European Union Presidency,
46 William J Dixon, "Democracy and Peaceful Settlement of International Conflict" (1994) 88 American Political Science Review 14 at 14-32
170 brokered the six point ceasefire by his shuttle diplomacy. It was signed by the Russian President
Dmitry Medvedev, the Georgian President Mikheil Saakash Vili and the French President,
Nicholas Sharkozi. On August 12, 2008 President Sharkozi announced that a preliminary ceasefire agreement had been reached and the peace plan was implemented. This war ended immediately after the deal. It returned the Russian soldiers and the Georgian soldiers respectively to their positions prior to the beginning of the War, ensured the access of the humanitarian aid to the victims and launched an international discussion for the security of the region. This is an inspiring example for the settlement of the Indo-Bangladesh water and environmental disputes. In this case, the deal was brokered between a strong state, Russian Federation and a weak state
Georgia, like India and Bangladesh. Moreover, in both cases the disputing states are neighbors and have common political, economic, cultural, and historical backgrounds.
The Mahakali agreement concluded between India and Nepal in 1996 provided the provision for arbitration.49 Even within India, the interstate water disputes Act of
1956 was legislated to deal with conflicts and included provisions for the establishment of tribunals to adjudicate where direct negotiations have failed.50 The interstate water dispute Act (1956) as amended in 2002 has provided an option for the formation of a
Tracy Mcnicole, "Sarko Tackles the Bear" News Week (20 September, 2008).
The six point deal includes: 1. No recourse to the use of force; 2. Definitive cessation of hostilities; 3. Free access to humanitarian aid (and to allow the return of refugees); 4. Georgian military forces must withdraw to their normal bases of encampment; 5. Russian military forces must withdraw to the lines prior to the start of hostilities. While awaiting an international mechanism, Russian peacekeeping forces will implement additional security measures (six months); 6. Opening of international discussions on the modalities of lasting security in Abkhazia and South Ossetia (based on the decisions of the U.N. and the O.S.C.E.).See "Peace Accord Sarkozy Gave to Georgians" The New York Times (Augustl3, 2008). Online: <.http://www.nytimes.com/2008/08/14/world/europe/14dtext.html?emc=rnt&tntemai]l=v>.
49 Article 11 of the 1996 the Indo-Nepal Mahakali Agreement provides arbitration provision. It states that if either party disagrees, "... a dispute shall be deemed to have been arisen which shall then be submitted to arbitration for decision." 50 The Interstate Water Dispute Act passed in 1956. See John R. Wood, The Politics of Water Resource Development in India: the Narmada Dams Controversy (London: Sage publications, 2007) at 62.
171 tribunal to resolve any conflicts arising from the sharing of water. So far, on five occasions such a tribunal has been formed to settle disputes. These are the Godavari
Water Disputes Tribunal (April, 1969); the Krishna Water Disputes Tribunal (April
1969); the Rabi and Beas Water Disputes Tribunal (April 1986); the Cauvery Water
Disputes Tribunal (1991) and the Narmada Water Disputes Tribunal (October 1969).
The third party settlement by good offices is universally advocated for resolving international river disputes.52 In the cases of the Indo-Bangladesh Ganges water dispute, the Tipaimukh dam dispute and the Interlinking river dispute, they should approach the
United Nations (UN) or the World Bank (IBRD) or the United States or any other third party acceptable to both countries for mediating the disputes. The Individual countries are mentioned here, because these powerful countries might be acceptable to both disputing countries for their common friendship. Initially both countries can approach the
UN. The good office of the UN Secretary-General has a special significance in settling of international disputes and has already been used in many cases. His position gives him an easy access to each and every head of the state easily which is difficult for others. He can play an important role as a mediator as well as an informal adviser of many
51 The Godavari Water Disputes Tribunal was formed to adjudicate between Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh and Onssa; The Krishna Water Disputes Tribunal was between Maharashtra, Karnataka and Andra Pradesh, the Narmada Water Disputes Tribunal was between Madhya Pradesh, Gujrat, Maha rastra and Rajshthan; the Rabi and Beas Water Dispute Tribunal was between Panjab, Hariana and Rajshtan; and the Cauvery Water Disputes Tribunal was between Karnataka and Tamil Nadu. See Douglas Hill, "Boundaries , Scale and Power in South Asia" in Devleena Ghosh, Heather Goodall & Stephanie Hemelryk Donald eds., Water Sovereignty and Borders m Asia and Oceania (London : Routledge, 2009) at 93-101; John R. Wood, The Politics of Water Resource Development in India The Narmada Dams Controversy ( London :Sage Publications, 2007) at 66-82. 52 C.B. Bourne, "Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes" (1971) 9 Can YB lnt TLaw 114 at 114.
172 governments. The UN Secretary-General spends much of his time as an honest broker in international disputes both on his own initiatives and at the request of the Security
Council. He is the convenient channel of communication to transmit messages between the parties. He is able to mediate between the disputants, India and Bangladesh. They should jointly request the UN Secretary General to extend assistance in any possible way.
In order to utilize the assistance of the UN both parties should give up their rigidity and moderate their positions so that they can reach closer to each other. Both parties need to come to a compromise with the help of the technical experts of any third party. The proposal of the third party can narrow down their differences and meet their requirements.
Moderate approaches of the disputants will also help the mediator to adopt flexible approaches for decision making,54 which is a key to the success of the third party settlement. Both governments should avoid the political matters in settling the disputes.
Only technical, economic and environmental factors should be considered. The targets of the both countries should be to achieve the economic and environmental goals. At this point, the UN Secretary-General, by utilizing his technical and diplomatic experts, can mediate between the disputing countries of India and Bangladesh. The advisory, diplomatic and technical services of the UN may be used "to assist in planning for the cooperative development of the Ganges water, which not only will augment the dry
5J Supra note 14 at 102. Thomas Ehrlich, "Third Party Involvement in International Dispute Settlement" Book Review of the Structure of Impartiality by Thomas M. Franck (1971) 23 Stan. L. Rev. 1143.
173 season flow, but also will ensure the optimum, sustainable and mutual beneficial use of water by both countries.55
The UN Secretary-General can also play an important role in preventing India from the construction of the Tipaimukh Hydraulic Dam and the Interlinking River projects in order to thwart the disastrous effects of these projects on the environment, ecology, climate change and livelihood of the people of Bangladesh. Considering the necessity of both India and Bangladesh, the UN Secretary-General can devise better alternatives which are beneficial for both countries. Ultimately such a settlement would create a win-win situation for both countries. In this case, with the help of a third party, an integrated approach56 (both environmental and non-environmental concerns) in managing the transboundary river basins would help to attain the goal of sustainable development.
Such development would be based on scientific knowledge for defining, prioritizing, and solving the environmental problems and transformation of environmental protection from
'zero-sum' to a 'win-win situation.'57 It would maximize the optimum utilization of the common water resources 'towards efficient flood management, irrigation, river system,
CO hydro-electric power generation and environmental protection. The mediations of international organizations are more useful to the disputing parties for reaching an agreement. In reality, international organizations become more successful conflict
55 Supra note 42 at 933. Benjamin J. Richardson & Stepan Wood, "Environmental Law for Sustainability" in Benjamin J. Richardson & Stepan Wood eds. Environmental law for Sustainability (Oxford: Hart Publishing, 2006) 1 at 1-18. Ibid M. Rafiqul Islam & Shawkat Alam, "Interlinking of Rivers m India: International and Regional Legal Aspects" in M. Monirul Qader Mirza, Ahsan Uddm Ahmed & Qazi Khohquzzaman Ahmad, eds. Interlinking of Rivers in India Issues and Concerns (London: CRC Press, 2008) at 222-223.
174 managers because of their highly institutionalized character, homogenous memberships and established democratic members59 These elements make the UN a unique international organization for third party mediation
Similarly the World Bank can broker a settlement by utilizing its previous experiences of mediating the Indus River dispute, between India and Pakistan in 1960 It was mediated by the World Bank, without whose prestige and command of technical skill this contentious dispute might have not been settled 60 The World Bank provided its own independent expertise and enormous financial resources to reach the Indus water agreement of 1960 and m effect, the World Bank became an independent arbitrator61
Utilizing the merits of the Indus water dispute settlement, both Bangladesh and India should request the World Bank The World Bank's technical and advisory role can help augmenting the dry season flow in the Ganges to meet the requirements of both countries
The World Bank can also provide substantial technical and financial assistance in order to implement alternative and fruitful proposals for India, instead of the Tipaimukh Hydraulic dam and the interlinking rivers projects Such actions of the World Bank can protect the national interests of both India and Bangladesh The advantage of the intergovernmental organizations (IGO), like the World Bank is that it has the ability to influence a state behavior by manipulating the opportunity costs associated with the mter-state conflicts
The World Bank may withhold economic benefits like grants, loans, credits or access to
59HolleyE Hansen, Sara Mclaughlin Mitchell & Stephen C Nemeth, "10 Mediation of Interstate Conflicts" (2008) 52 Journal of Conflict Resolution 295 at 296 60 Supra note 42 at 933 6i Jagat S Metha, "The Indus Water Treaty A Case Study m the Resolution of an International River Basm Conflict" (1998) 12 Natural Resource Forum 69 at 69
175 other resources. In regard to the Indo-Bangladesh water and environmental disputes, the
IGO like the World Bank can make its benefits contingent to India upon the settlement of the water and environmental disputes with Bangladesh. The World Bank can exert enormous influence on India, because it is the largest recipient of the World Bank's assistance.63
Finally another option for a third party settlement is the mediation of a dispute by a super power or a global hegemonic power. A Super power/hegemonic power can also put pressure upon the disputants to reach a settlement. For example, the US, in the Israeli-
Jordan Peace Agreement and the Israel-Palestine Peace Agreement, is persistently trying to mediate the disputes. The US Secretary of the state, Alexander Haig first mediated between Argentina and Britain in order to avert war during the Falkland crisis in 1982.
Both the President of the Security Council and the Secretary-General Perez de Cuellar maintained that they should do nothing which might inhibit Haig's efforts that failed. 4
Similarly the Tashkent Agreement which ended the Indo-Pakistan War in 1965 was mediated successfully by the former super power, Soviet Union. The US has very rich experiences of transboundary water and environmental disputes resolution. Using its own practical experiences, utilizing its superior technical, advisory and diplomatic skills, the
US can mediate the Indo-Bangladesh water and environmental disputes. In this case, the
US can broker the Ganges water dispute, the Tipaimukh Hydraulic dam and interlinking
Supra note 15 at 38 63 The World Bank country director in India Roberto Zagha said that the total lending to India by June 2010 would include $2 6 billion as interest free credits from the IDA and $6 7 billion in the form of long-term low interest loans from the IBRD. See The Hindu (June 23,2010 ) Online •< http // beta the Hindu com/business/Economy/article 482673> Supra note 14 at 111
176 river projects in a comprehensive way and can suggest an equitable solution, considering the needs and national interests of both countries. The name of the US is proposed here, because both countries are dependent on the US aid and the US has more influence on both countries than any other country. If the US can propose an equitable solution, both
India and Bangladesh will be morally obliged to carry it out.
If the third party mediation does not work or is not allowed to work, then an arbitration or a third party judicial settlement through the ICJ will remain as the ultimate option for the dispute settlement. But that will further engender mistrust and misunderstanding and eventually detriment the bilateral relations between the two unequal neighbors. Therefore, it will not be wise to go to the ICJ right away to avoid the chances of hostilities. Given this situation, third party mediation is the best strategy for
Bangladesh to settle the Indo-Bangladesh Water and environmental disputes and to ensure a 'win- win' situation.
177 Appendix 1
Figure 1: The Ganges and Brahmaputra Rivers
Source : < http://web.bryant.edu/~langlois/ecology/Lanloil.jpg5 Figure 2: The Farakka Barrage
FARAKKA BARRAGE
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* pr«|ect of int«nMOOR«J importance, teifij «w terminal tmrrnqv m We rWx»r Ganga tscated m the start* of west fcrsgai, cs>mpiei«s m 1974, seivwi the piin»s« of flushing tn& channels of Calcutta Part, as wefi ** to wgroerit water *,u|*pfy to Catentta city
Source:
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Figure 6: Bangladesh in South Asia
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Figure 9: Impact of Monster CycloneSidr
Rescue goes on as toll crosses 2,000 Still thousands missing; ships, aircrafts, copters join the search; hundreds of thousands homeless; over 2 lakh livestock killed. Source: The Daily Star (November 18, 2007) Figure 10: Impact of Cyclone Aila on Bangladesh
18 killed as Cyclone Aila lashes coast Over 500 missing, livestock washed away, crops damaged Source: The Daily Star,May 26, 2 Appendix 2
Tablel: The Ganges-Brahmaputra-Meghna Basin
Ganges Brahmaputra Meghna Total
Area (1000km2) 1078 577 91 1746 Arable (1000km') 667 86 45 798 Av run off (km/yr) 52280 537 32 59 80 1276 1 Energy Potential 944000 54000 2000 150,000 (MW@ 60% LF) POP (1990-91(M) 416 80 39 535 Water use per capita 101 8 24 4 43 2 42 (mVyear) Water use/Unit 0 57 721 4 33 1 50 Source Water and Development in the Developing Countries-A Study, commissioned by the European Parliament, Stockholm International Water Institute, Sweden, 2000 at 75 Online
The Ganges-Brahmaputra-Meghna is one of the largest river basins of the world This 174 million hectare basin spreads over Bangladesh, Bhutan, India, Nepal and China (Tibet) The Ganges river originates on the Southern slope of the Himalayan range and on its way receives supplies from seven major tributaries Three of them - the Gandak, Karnah (Ghagra) and Kosi-pass through Nepal and they supply major portions of the Ganges flow After leaving the Himalayas, the river flows in the Southeasterly direction through India to enter into Bangladesh It forms the boundary between India and Bangladesh for about 112 kilometers and then turns South-east to join the Brahmaputra river in the middle of Bangladesh (Goalando/Ancha) The Brahmaputra rises from near Lake Mansarovar and after running m China (Tibet) in an easterly direction, comes to the North-eastern part of India (Asam valley) and then to Bangladesh (Garohills near Majihali in Kungram district) to join the Ganges river The river flows further in Southerly direction and joins the Ganges near Ancha In Bangladesh, the river is called Brahmaputra and Jamuna The smallest among the three, the Meghna originates m the North-eastern part of India (Mampur), known as Barak and then enters Bangladesh to join the combined flow of the Ganges and Brahmaputra Of the total basm area of this massive river system 62 93% is in India, 7 39% in Bangladesh, 2 58% in Bhutan, 8 02% in Nepal and 19 08% in China See Water and Development in the Developing Countries - A Study, Commissioned by the European Parliament, (Stockholm International Water Institute, Sweden, 2000) at 75,Md Liakat Ah, An Integrated Approach for the Improvement of the Flood Control and Drainage Schemes in the Coastal Belt of Bangladesh (Netharlands Sweets &Zeithnger, 2002) at 24-25 Table 2: Distribution of the Ganges Basin
Country Basin area (Square km) Percentage of total area China 33,520 3.08 Nepal 147,480 13.56 India 860,000 79.10 Bangladesh 46,300 4.26 Total 1,087,300 100.00 Source: Iswer R. Onta," Harnessing the Himalayan Waters of Nepal: A Case for Partnership for the Ganges Basin" in Asit K. Biswas & Juha I. Uitto eds. Sustainable Development of the Ganges- Brahmaputra-Meghna Basins {New York: United Nations University Press 2001) at 102. Table 3: Different Phases of Negotiations Phase (Period) Focus Phase I How to finalize respective shares before commissioning the barrage 1951-1974 Discussions on respective claims and their justifications Phase-II Issue of flow augmentation rose Failure in bilateral negotiations Barrage 1974-76 operation begins in 1975 Unilateral withdrawal of water by India in 1976 Issue taken to the UN by Bangladesh Phase-I Ganges Water Agreement (1977-82) signed and implemented Discussion 1977-82 on augmentation failed Treaty, not renewed despite provisions to do so Phase-IV MOU 1982 and 1985 implemented Provisions similar to 1977 agreement 1982-88 except it contain a guarantee clause All regional rivers brought to the discussion table Both sharing and augmentation options discussed Both sides reviewed augmentation proposal Phase-V Negotiation continued but without success Divergence m approach 1988-92 Relationship between sharing arrangements and augmentation proposal became a very critical issue Phase-VI No dialogue and India had unilateral control over the Ganges Indian 1993-1995 operation of the Luv-kush barrage over the Ganges in Kanpur, UP and Indian transfer of water at the upstream Phase-VII Treaty was signed to share water resources according to the terms of 1996-Present Treaty But the treaty is not working Bangladesh did not receive its share according to the treaty in the 13 years out of 14 years of the existence of the treaty Table 4: Bangladesh-India Water Sharing Agreement 1975 10 Day Period Supplies at Amt for Amt Farakkah(cusecs) Bangladesh(cusecs) for India (cusecs)
April 21-30, 55,000 44,000 11,000 1975 May 1-10, 1975 56,500 45,000 12,000 May 11-20, 1975 59,250 44,250 15,000 May 21-31, 1975 65,500 49,500 16,000 Source Zaglul Haider, The Changing Pattern of Bangladesh Foreign policy A comparative Study of the Mujib and Zia Regimes (Dhaka The University Press Ltd , 2006) at 45 Table 5: Bangladesh-India Water Sharing According to the Agreement of 1977 (Between January 1 and May 31) [Amount in cusecs] Period Supplies at Farakka Amt for Amt for (Based on 75% Availability Bangladesh India from Observed Data) January 1-10 98,500 58,500 40,000 11-20 89,750 51,250 38,500 21-31 82,500 47,500 35,000 February 1-10 79,250 46,250 33,000 11-20 74,000 42,500 31,500 21-28/29 70,000 39,250 30,750 March 1-10 62,250 38,500 26,750 11-20 63,500 38,000 25,500 21-31 61,000 36,000 25,000 April 1-10 59,000 35,000 24,000 11-20 55,500 34,750 20,750 21-30 55,000 34,500 20,500 May 1-10 56,500 35,000 21,500 11-20 59,250 35,250 24,000 21-31 65,500 38,750 26,750 Source Zaglul Haider, The Changing Pattern of Bangladesh Foreign policy A comparative Study of the Mujib and Zia Regimes (Dhaka The University Press Ltd , 2006) at 47
Table 6: Formula* for Sharing the Waters of the Ganges under the 1996 Treaty
Availability at Farakka Share of India Share of Bangladesh 70,000 cusecs or less 50% 50% 70,000-75,000 cusecs Balance of flow 35,000 cusecs 75,000 cusecs or more 40,000 cusecs Balance of flow *Subject to the condition that India and Bangladesh each shall receive guaranteed 35,000 cusecs of water in alternative three 10-day periods during the period March lto May 10 Source Annexure 1 of the treaty Online < http //www africanwater org/mdex htm> Table 7: Sharing of Indo- Bangladesh Ganges Water at Farakka under the 1996 Treaty
(Indicative schedule giving the implications of the sharing arrangement under Annexure-I
Between 1st January and 31st May)
Period Average of Actual India's Share Bangladesh's Share Flow(19491988)(cusecs) (cusecs) (cusecs) January 1-10 107,516 40,000 67,516 11-20 97,673 40,000 57,673 21-31 90,154 40,000 50,154
February 1-10 86,323 40,000 46,323 11-20 82,839 40,000 42,839 21-28 79,106 40,000 39,106
March 1-10 74,419 39,419 35,000 11-20 68,931 33,931 35,000 21-31 63,688 35,000 29,688
April 1-10 63,180 28,180 35,000 11-20 62,633 35,000 27,633 21-30 60,992 25,992 35,000
May 1-10 67,251 35,000 32,351 11-20 73,590 38,590 35,000 21-31 81,834 40,000 41,854 Source Annexure II of the treaty, Online < http 11 www afncdiiwater oig/mdex htm> . Accessed> Table 8: A Comparison between the Shared Value and the Released Value of Flow at Farakka in 1997 and 1998. PPenod Actual flow Share of Difference Actual flow Share of Difference release to Bangladesh in flow release to Bangladesh in flow Bangladesh as per between Bangladesh as per between m 1997 formula actual and in 1998 formula actual and (cusecs) given m the share of (cusecs) given m share of Annexure-I Bangladesh Annexure-I Bangladesh of 1996 in 1997 of 1996 (cusecs) Treaty in (cusecs) Treaty in 1997 1998 (cusecs) (cusecs) 1 2 3 4= 5 6 7= 2-3 5-6 JJan 62019 62180 164763 164797 -34 01-10 161 JJan 49556 49635 -79 135591 135566 25 11-20 JJan 48884 48672 212 105881 105866 15 21-31 FFeb 45604 45604 0 88181 88186 -5 01-10 FFeb 41029 41015 14 61831 61841 -10 11-20 FFeb 38387 37399 988 54711 54738 -27 21-28 March 01-10 33489 33085 404 45322 45323 -1
March 11-20 35028 35000 28 37323 35967 1356
March 21-31 16528 13487 3041 36557 35000 1557
April 01-10 30137 35000 4863 40474 38588 1886
April 11-20 25613 19526 6087 55952 50955 4997
April 21-30 35065 35000 65 47876 47901 -25
May 01-10 31722 31728 -6 721185 62203 992
May 11-20 33021 33028 -7 82062 82062 0
May 21-31 31643 31654 -11 81218 81220 -2 Total flow 557725 552013 5712 1109927 109013 19724 Source A Nishat and MFK Pasha, "A Review of the Ganges Treaty of 1996" Paper presented to a Seminar on Globalization and water Resources Management The Changing Value Water ('August 6-8, AWRA/IWLRI-University of Dundee, International Specialty Conference 2001), Online
Items Financial loss in million Taka (1991 price index) Agncultre 37,000 Fisheries 63,000 Foresty 9,900 Industry 1,150 Public Health 1,180 Navigation 560 Dredging 560 G.K intake channel &Gorai offtake 450 Channel Total 113,240(approximately US$ 3 billion) Source: Indo-Bangladesh Joint River Commission, Dhaka Bangladesh, See Ashok Swam, "Displacing the Conflict: Enviornmental Destruction in Bangladesh and Ethnic Conflict in India" (1996) 33 Journal of Peace Research 189 at 193. Table 12: India's Trade Dominance in South Asia (million S US)
2002 2005 2008
Country Export Import Balance Export Import Balance Export Import Balance of of of Trade Trade Trade Bangladesh 1133 61 1072 1656 110 1546 3180 364 2816 Pakistan 191 50 141 647 158 489 2050 339 1711 Sri Lanka 448 85 743 1872 528 1344 3063 675 2388 Nepal 316 300 16 831 371 460 1555 625 930 Bhutan 31 61 -30 96 84 12 91 207 -116 Maldives 30 0 30 63 2 61 96 4 92 Source IMF, Direction of Trade Statistics, Yearbook 2009, Washington, D C Table 13: Indian Dominance in the Military Spending of South Asia
Country 2005 %of 2006 %of 2007 %of 2008 %of (million GDP (million GDP (million GDP (million GDP $US) $US) $US) $US)
Bangladesh 669 1 7 720 1 6 757 22 901 n a Bhutan n a na n a na na na na na India 22891 28 23029 26 23535 25 30030 n a Maldives na n a n a na n a na na n a Nepal 156 22 146 2 1 142 20 172 n a Snlanka 612 25 736 28 795 28 1230 na Pakistan 4412 35 4463 33 4468 3 1 4769 na Source SIPRI Year Book 2009 (Oxford Oxford University Press, 2009) at 234-241 Bibliography
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Cases
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Arizona v. California, 298 U.S. 558 (1936).
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Corfu Channel Case (United Kingdom v. Albania), 1949, ICJ 4.
Wurttemberg v. Barden, [1927-28]Ann.Dig.128 (No.86)(Sup. Ct. Germany).
Kansas v. Colorado, 206 U.S. 46 (1907).
Lake Lanous Arbitration, (France v. Spain) [1957] I.L.R .101; 12 R.I.A.A. 281 (1956).
Nebraska v. Wyoming Case, 325 U.S. 589 (1945).
New Jersey v. New York, 283 U.S. 805 (1931). North Dakota v. Minnesota, 263 U.S.365 (1923).
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Wyoming v. Colorodo, 259 U.S. 419, modified 260. U.S. (1922) amended 353 U.S. 953 (1957).
Young and Co. v. Bankier Distillery Co., [1893] AC 691 at 698 [181-4]All ER 439 at 441, HL.
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Thesis and Dissertations
Bhaduri, Anik. Transboundary Water sharing between an Upstream and Downstream Country (PhD dissertation, Department of Economics and Finance, University of Wyoming, 2005) [unpublished].
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Woldemariam, Yohannes. A Critical Assessment of International relations Theories for Managing Transboundary Water resources: The Case of the Nile Basin (PhD Dissertation, Department of Political science, University of Massachussetts, U.S.A. [Unpublished].
Yacob, Yosef. Equitable Utilization in the Blue Nile River Sub-Basin: Context, Problems, and Prospects, PhD Dissertation (York University, Osgoode Hall Law School, Toronto, Canada, 2002) [unpublished]. International Documents
2005 Summit Outcome, U. N. Doc. A/res/60/1 (Supp) 24 October 2005.
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Convention on the Law of the Non-Navigational Uses of International Watercourses, A, Res. 51/229, UN GAOR, 51st Sess., UN Doc. A/RES/51/229 (1997) reprinted in (1997) 36 I.L.M. 700.
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The 1977 Ganges Water Sharing Agreement
The 1996 Indo-Bangladesh Ganges Water sharing Treaty
The Helsinki Conference Report of the ILA Committee on the Uses of Waters of International Rivers, July 1996.
The Indus Water Treaty 1960.
UN. Doc. A/con CN U/SER, A/1949 at 288.
UNEP, Governing Council Decision 15/2 of May 1989, Annex 11, GAOR, 44th'
White Paper on Farakka Issue (Dhaka: Government of Bangladesh, September 1976); Government of India Ministry of external affairs, India's Case of Farakka Barrage (New Delhi, September, 1976).
World Economic Outlook {IMF: Washington D.C., October, 2009).
The United Nations Convention on the Law of the Non-Navigational Uses of International Water Courses, in UN Doc.A/RES/51/869, 21 May 1997, 36 ILM 700 (1997).
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Online Resources
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The United Nation's Framework Convention on Climate Change. Online:
Trubek, David M. Patrick Cottrell, and Mark Nance, " Soft Law," "Hard Law, " and European Integration : Toward a Theory of Hybridity" online :< http://eucenter.wisc.edu/OMC/Papers/EUC/trubeketal.pdf.>
News Papers/Magazines
Ahsan, Shamim. "India's Giant River-Link Project: Will Bangladesh Dry Up?" Star Weekend Magazine, 1: 126 (10, October 2003), online:
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Jahangir, Nadim. "The Tipaimukh Dam Controversy" Forum 3: 2 (7 July 2009) online: http://www.thedailystar.net/forum/2009/july/tipaimukh.htm>. "Indian Hegemony Continues to Harm Relations with Neighbors" (Editorial) online: http://www.weeklyholidav.net/.
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Khan, Amzad Hossain. "Ganges Water Treaty: Analysis of First Year Implementation" The Daily Star ( 28 May 1997) online:
Khan, Amzad Hossan. "Ganges Water Treaty: Analysis of First Year Implementation"
The Daily Star [Bangladesh] (28 May, 1997); See, Water resource expert Ainun Nishat's interview.
Khan, Bias. "Choy Kistir Aktitao Paini Pany Bangladesh" [Bangladesh did not get water in any of the six phases] Daily Amardesh (5th March 2010).
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Mcnicole, Tracy. "Sarko Tackles the Bear" News Week (20 September, 2008) Online: http://www.newsweek.com/2008/09/19/sarko-tackles-the-bear.html.
Mian, Mohammad Moniruzzaman. "Water Treaty without Water" (1997) 1 The Envoy. Mirza, M. Monirul Qader. "Fallacies of India's Tipaimukh Dam" Holiday [Bangladesh] (28 November, 2009). Nazrul, Asif. "Tipaimukh Dam and International Law" The Daily Star [Bangladesh] ( July 15, 2009), online: http://www.thedailystar.net/newDesign/news- details.php?nid=96884> New Age [Bangladesh] (25th May, 2010). Online :< http://www.newagebd.com/>. Peoples Daily [China] (14th October 2009). Online: http://posts.people.com.cn/bbs new/filepool/htdoc/htrnl/0f03e2cf5d9.
"Press Conference of the BNP Secretary-General, Abdul Mannan Bhuyan" The Daily Janakantha (December 15, 1996).
Nurul Haque, AN M. "River-Linking Project May Spell Disaster" The Independent [Bangladesh] (22 October 2003), online:
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Sridhar , Subrahmanyam, " The Indus Water Treaty" Security Research Review, (2004)latl0. Online:
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The Hindu (June 23,2010 ) Online : < http;// beta.the Hindu.com/business/Economy/article 482673>.
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