Tipaimukh Dam on Barak River dominates the headlines in Bangladesh. Ruling Awami League trusts Indian verbal assurances while opposition parties lead by BNP-Jamaat alliance claim that Tipaimukh will be a disaster for Bangladesh. Opposition has decided to protest by reacting on the streets. India however will not stop building Tipaimukh Dam because of Bangladeshi political street agitations. For our part in Bangladesh, we have failed to provide a clear concept about what we really want. A lower riparian country must seek a water sharing TREATY to protect the natural flow of water in a transnational river. Our demands will make sense only when we keep focus on what we want and exactly how we should achieve them. Using that traditional “scream and shout” tool, rather than laws and principles, could drown us in the river of suspicion.
International Water Treaties are based on the concept of “No Harm” done to any country. Construction of a dam in Barak River will alter the natural flow of water and water level downstream in Bangladesh. Our position should be to pursue a bilateral Barak Basin Water Sharing Treaty with India. It will not be the first bilateral treaty in South Asia, as there are treaties between India and Pakistan, Nepal and Bangladesh on bilateral bases. Some highlights of those treaties are:
India-Pakistan (Indus Basin Water Treaty):
Negotiations held under the good offices of International Bank for Reconstruction and Development (World Bank), culminated in the signing of Indus Waters Treaty in 1960. The Treaty was signed at Karachi by Field Marshal Mohammad Ayub Khan, the then President of Pakistan, Shri Jawaharlal Nehru, the then Indian Prime Minister and Mr. W.A.B. Illif of the World Bank on 19th September, 1960. The Treaty however is effective from 1st April, 1960 (Effective Date).
India-Nepal (Mahakali River Treaty):
The Treaty on integrated Development of Mahakali River had been signed between the Government of India and Government of Nepal in February 1996, which came into force in June 1997 (Mahakali Treaty) Pancheshwar Multipurpose Project on river Mahakali known as Sarda in India is the centrepiece of the Treaty. India- Nepal Joint Group of Experts (JGE) has been overseeing the physical and financial progress with respect to finalization of Joint Detailed Project Report of Pancheshwar Multipurpose Project.
India-Bangladesh (Ganges Water Sharing Treaty):
An Indo-Bangladesh Joint Rivers Commission (JRC) is functioning since 1972 with a view to maintain liaison in order to ensure the most effective joint effort in maximizing the benefits from common river systems which is headed by Water Resources Ministers of both the countries. A new chapter in the Indo-Bangladesh relations opened up with signing of a Treaty by the Prime Ministers of India and Bangladesh on 12th December 1996 on the sharing of Ganga/Ganges waters. The Treaty shall remain in force for a period of thirty years to be renewable by mutual consent. For monitoring the implementation of the Treaty, a Joint Committee has been set up. The principal focus of international law on water treaties, their monitoring system, enforcement and potential conflict areas are under development. Further research in this article is based on papers and databases at Oregon State University, USA. (Source http://www.transboundarywaters.orst.edu/publications/patterns/).
Of the twenty-one multilateral treaties/agreements, developing nations are parties to thirteen. Only one multilateral treaty exists between industrialized nations for access to a water source, namely the treaty regarding water withdrawals from Lake Constance signed by Germany, Austria, and Switzerland in 1966. None of the preindustrial-nation multilateral agreements specified any water allocations-all involved hydropower or industrial uses or both. Principal Focus: Most treaties focus on hydropower and water supplies: fifty-seven (39%) treaties discuss hydroelectric generation, and fifty-three (37%) distribute water for consumption. Nine (6%) mention industrial uses, six (4%) navigation, and six (4%) primarily discuss pollution. Thirteen of the 145 (9%) focus on flood control. Monitoring: Seventy-eight (54%) treaties have provisions for monitoring, while sixty-seven (46%) do not. When monitoring is mentioned, it is addressed in detail, often including provisions for data-sharing, surveying, and schedules for collecting data. Information-sharing generally engenders good will and can provide confidence-building between co-riparians.
Unfortunately, some states classify river flows as secrets, and others use the lack of mutually acceptable data as a stalling technique in their negotiations. Most monitoring clauses contain only the most rudimentary elements, perhaps due to the time and labor costs of gathering data. Data collected by signatories of the treaty can provide a solid base for later discussions. India and Bangladesh previously could not agree on the accuracy of each other’s hydrologic records, but eventually agreed on Ganges flow data and based a workable agreement on that data in 1977.
Method for Water Division: Few treaties allocate water: clearly defined allocations account for fifty-four (37%) of the agreements. Of that number, fifteen (28%) specify equal portions, and thirty-nine (72%) provide a specific means of allocations. All but three multilateral agreements lack definite allotments, although a few establish advisory and governing bodies among states. There are four general trends in those treaties which specify allocations:
(1) A shift in position often occurs during negotiations from “rights-based” criteria (whether hydrographical or chronological) in favor of “needs-based” values (based on irrigable land or population, for example);
(2) In the inherent disputes between upstream and downstream riparians over existing and future uses, the needs of the downstream riparian are more often delineated (agreements mention upstream needs only in boundary waters accords in humid regions), and existing uses, when mentioned, are always protected;
(3) Economic benefits are not explicitly used in allocating water, although economic principles have helped guide definitions of “beneficial” uses and have suggested “baskets” of benefits, including both water and non-water resources, for positive-sum solutions; and
(4) The uniqueness of each basin is repeatedly suggested, both implicitly and explicitly, in the treaty texts. This last point is exemplified in the unique treaty elements devised by negotiators. The 1959 Nile Waters Treaty divides the average flow based on existing uses, then evenly divides any future supplies (projected from the Aswan High Dam and the Jonglei Canal Project). The Johnston negotiations led to allocations between Jordan riparians based on the irrigable land within the watershed; each party could then do what it wished with its allocations, including divert it out-of-basin. The Boundary Waters Agreement, negotiated with a hydropower focus between Canada and the United States, which allows a greater minimum flow of the Niagara River over the famous falls during summer daylight hours, when tourism is at its peak.
Fifty-seven of the treaties (39%) focus on hydropower. Power-generating facilities bring development, and hydropower provides a cheap source of electricity to spur developing economies. Some, however suggest that the age of building dams will soon end, because of lack of funding for large dams, a general lack of suitable new dam sites, and environmental concerns. Not surprisingly, mountainous nations at the headwaters of the world’s rivers are signatories to the bulk of the hydropower agreements. Nepal alone, with an estimated two percent of the world’s hydropower potential, has four treaties with India (the Kosi River agreements, 1954, 1966, 1978, and the Gandak Power Project, 1959) to exploit the huge power potential in the region. Groundwater: Only three agreements deal with groundwater supply: the 1910 convention between Great Britain and the Sultan of Abdali, and the 1994 Jordan-Israeli and 1995 Palestinian-Israeli agreements. Treaties that focus on pollution usually mention groundwater, but do not quantitatively address the issue.
Non-water linkages include capital (44, or 30%); land (6, or 4%); and political concessions (2, or 1%). Other linkages account for ten of the 145 treaties (7%), and there are no linkages for eighty-three treaties (57%). Examples of these linkages can be found in the 1929 Nile agreement, in which the British agreed to give technical support to both Sudan and Egypt. In another example, the Soviet Union agreed, in lieu of payments, to compensate lost power generation to Finland in perpetuity (the 1972 Vuoksa agreement). Britain even established ferry service across newly-widened parts of the Hathmatee in India, in compensation for the inaccessibility problems created by a dam project in the late 1800s. Compensation for land flooded by dam projects is common. For example, British colonies usually agreed to pay for water delivery and reservoir upkeep, and the British government agreed to pay for flood damage to houses. However, capital can provide compensation for a greater array of treaty externalities and requirements, such as the construction of new water facilities; the India-Nepal Kosi River Project Agreements, signed in 1954 and 1966 provide two examples.
Treaties which allocate water also include payments for water; forty-four treaties (30%) include monetary transfers or future payments. As early as 1925, Britain moved toward equitable use of the rivers in its colonies: Sudan agreed to pay a portion of the income generated by new irrigation projects to Eritrea, since the Gash river flowed through that state as well. Treaties also recognize the need to compensate for hydropower losses and irrigation losses due to reservoir storage: the 1951 Finland-Norway treaty and the 1952 Egypt-Uganda treaty both include such compensation. Again, these agreements emphasize the monetary aspect of water; they do not describe water as a right.
Treaties may handle disputes with technical commissions, basin commissions, or via government officials. Fifty-two (36%) of the treaties provide for an advisory council or conflict-addressing body within the parties’ governments. Fourteen (10%) refer disputes to a third party or the United Nations. Thirty-two (22%) make no provisions for dispute resolution, and forty-seven (32%) of the texts are either incomplete or uncertain as to the creation of dispute resolution mechanisms. Can a technical advisory body address disputes? Perhaps, but the treaties do not expressly provide for such activity. Historically, force or the threat of force has ensured that a water treaty will be followed (e.g. British colonial treaties and the 1947 Allied peace treaty with Italy ), but power is less desirable and more expensive as a guarantor of compliance than mutual agreement. Britain could oversee its colonial water treaties because it had one of the more powerful administrative and military organizations in the world. Similarly, agreements on the Nile generally favor Egypt, while those on the Jordan River favor Israel because of their respective power. While the conflict resolution mechanisms in these treaties do not generally show tremendous sophistication, new enforcement possibilities exist with new monitoring technology.
It is now possible to manage a watershed in real time, using a combination of remote sensing and radio-operated control systems. In fact, the next major step in treaty development may well be mutually enforceable provisions, based in part on this technology of objective and highly detailed remote images, better chemical testing, and more accurate flow computations than previously available. The 145 treaties which govern the world’s international watersheds, and the international law on which they are based, are in their respective infancies. More than half of these treaties include no monitoring provisions whatsoever and, perhaps as a consequence, two-thirds do not delineate specific allocations and four-fifths have no enforcement mechanism. Moreover, those treaties which do allocate specific quantities, allocate a fixed amount to all riparian states but one-that one state must then accept the balance of the river flow, regardless of fluctuations.
One problem hampering the development of sophisticated water treaties may have been the difficulty in acquiring information on similar settings. Thus far, each set of negotiators has had to, in effect, independently invent solutions. However, with the compilation of treaties in a single, searchable collection, along with negotiation notes and case studies, the Transboundary Freshwater Dispute Database hopes to provide researchers and diplomats a useful tool to assess negotiating trends and workable treaty solutions in the future.
Water and the Potential for Conflict Humans have long been organized into social groups with more or less clearly defined boundaries within which they conduct their affairs. Water, however, is an ambient resource that neither knows nor respects human boundaries. The world’s 261 international river basins, covering 45 percent of Earth’s land surface (excluding Antarctica), are shared by more than one nation. Even the most cordial and cooperative of neighboring nations have found it difficult to achieve mutually acceptable arrangements to govern their transboundary surface waters , even in relatively humid regions where fresh water usually is found in sufficient abundance to satisfy most or all needs.
When nations are located in arid regions, conflicts become endemic and intense despite otherwise friendly relations or even membership in a federal union. Little wonder the English language derives the word “rival” from the Latin word “rivalis,” meaning persons who live on opposite banks of a river used for irrigation. International Co-operation in Negotiating Water Treaties International agencies have helped countries negotiate treaties based on international law. The assistance of UNDP for Ethiopia in the Nile River treaty is an example. Below is a case study on Nile River (http://www.waterencyclopedia.com/La-Mi/Law-International-Water.html):
The Nile Valley nations perfectly epitomize the scenario set out in the text regarding the role of customary international law in resolving international disputes over water. Egypt is not a wealthy nation; its per capita gross domestic product is only US$630/year, making it one of the poorer nations in the Middle East. Yet Egypt is wealthier than Sudan (US$540/year), and Egypt and Sudan are far wealthier than Ethiopia (US$120/year). As is commonly the case throughout the world, the lower basin nations are wealthier and more highly developed than the upper basin states. Yet without a common border, Egypt cannot easily pose a military threat to Ethiopia or otherwise set about to impose its will directly.
Ethiopia, on the other hand, gets the water first. One might think, therefore, that Ethiopia is in a position simply to do as it chooses, regardless of the effect on downstream states. Ethiopia, however, is too poor and too poorly organized to construct the dams and related infrastructure necessary to exploit the Blue Nile without outside financial assistance. Egypt has succeeded in exploiting its greater political importance to block international financing of Ethiopian dams and related works. As part of this diplomatic program, Egypt has freely deployed legal arguments, particularly the so-called no-harm rule. Egypt most recently did not object to a loan application by the Ethiopians for a small-scale irrigation project, suggesting that there might be some truth to rumors of a secret agreement between the two nations regarding development of the Nile. Ultimately, Egypt claims an absolute right to the integrity of the river because of the priority of their use. Priority of use, while undoubtedly relevant to an equitable allocation of water among national communities, has never been treated as absolutely controlling in international law. Any other approach would negate the concept of “equitable utilization” that is the rule of customary international law.
Furthermore, for priority in time to override all other values, or even to dominate other values, would hardly be conducive to achieving the developmental equity proclaimed under various banners at the United Nations. To accord such priority to existing uses in the Nile Basin would condemn Ethiopia to remain impoverished and dependent on international food aid to stave off mass starvation, for the benefit of the relatively richer Egyptians and Sudanese. In the Jordan Valley, this approach would condemn the Palestinians to remaining a colonial society utterly dependent on Israeli largesse, and would leave the Jordanians only marginally better off. The tension between protecting “historic rights” and providing for developmental equity can be managed only if the water is cooperatively managed by the several national communities in such a way as to assure equitable participation in the benefits derived from the water by all communities sharing the basin.
Customary international law, in its somewhat primitive state of development, cannot by itself resolve the management problems of a region. While uncertainty of legal right can induce cooperation among those sharing a resource, it can also promote severe conflict. Nor can a partitioning of the waters be an adequate resolution when there simply is too little water to divide. To create the sort of regime necessary to allay conflict and optimize the use and preservation of the resource of the Nile will require a new treaty, one that includes all basin communities, creates appropriate representative basin-wide institutions, and has the clout to enforce its mandates. International practice provides numerous examples as models for institution design.
As of early 2003, the UN Development Programme was promoting the negotiation of such a treaty for the Nile. Barak River along with its surrounding ecology and millions of people downstream could benefit from international co-operation to negotiate a fair international water sharing treaty with India under the “No Harm” principle. Striking a Barak River Basin Water Sharing Treaty with India will provide such an instrument which will remove suspicions from our minds, and guarantee our rights to the natural flow of Barak River.