Upreti, Trilochan, International Watercourses Law and Its Application ...

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186 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 187water during the dry season, hydroelectric power, and floodcontrol during the wet season, are absolutely essentialrequirements to India and Bangladesh. 20Besides this, fundamental benefits could accrue to Nepal aswell, in particular from co-operation over navigationalfacilities, giving access to and from the sea, an essentialrequirement so that Nepal can diversify her trade in a morecompetitive way. 21 Nepal had repeatedly called for such access,which she is entitled to by international law, but of which shehas been deprived. In order to maximise the benefits, anintegrated and holistic approach needs to be undertaken inNepal, for example in watershed management, and afforestationin the Siwalik and the hills of the Himalayas, which wouldsignificantly reduce the silt and sediment that causestremendous loss and damage to territory downstream. As aresult of this approach, all nations involved would benefit. 22 Anexample of this is the Indo-Bhutan co-operation in the Chukhaproject, which enormously benefited both nations. 23Additionally, there are several projects under review forimplementation. Primarily, these are the hydroelectric projects:(1,020 MW) the Tala Project on the Wangchu downstream ofChukha, the Chukha II, the Sunkosh High Dam Project (1525MW), the Chukha III (900 MW) and the Mannes High Dam20 B. G. Vergeese & R. R. Iyer (eds), Harnessing the Eastern HimalayanRivers: Regional Co-operation in South Asia, New Delhi: KonarkPub., 1994, p. 267.21 C. K. Sharma, Water and Energy Resources of the Himalayan Block,Kathmandu: Sangita Sharma, 1983, p. 377.22 B. G. Vergeese, Waters of Hope, New Delhi: Oxford & IBH Pub.,1990, p. 347.23 Supra note 17. pp 199-200: the 336 MW hydropower project jointlyundertaken by means of Indo-Bhutan co-operation provides a goodexample, in which India provided 40% of the project cost as assistanceto Bhutan and the remaining 60% as an investment on 50/50 ownershipof the joint investment project. The electricity generated is beingexported to India as a result of which a huge amount of money, 40crore annually, has accrued to Bhutan as revenue from which hereconomy has benefited.project (2800 MW), and apart from these India’s strategy todivert the Brahamputra into any or all of the Torsa, Raidak, theSunkosh and Manes rivers in Bhutan, schemes which are underdiscussion. 24 Due to the income of Chukha I, a 336 MWproject, and other projects in the pipeline, Bhutan is emergingas one of the wealthiest nations, in terms of per capita income,in south Asia. 25 Such cooperative arrangement for the mutualbenefits of India and Nepal is the need of the hour and fromsuch cooperation other nation also could benefit.4. 3 History of Water Resource Development:Indo-Nepal RelationsNepal's water resource development dates back to the Exchangeof Letters of 1920 with the then British Government in Indiaregarding the construction and operation of the Sarada BarrageProject. This was the first international agreement in thesubcontinent in modern time. 26 Through the Exchange ofLetters of 1920, Nepal agreed to transfer 4093.88 acres of herland on the east bank of the Mahakali river to India so thatIndia could build the Sarada Barrage across the river to regulatethe waters for irrigation. In exchange for the land, Nepalreceived an equal amount of land elsewhere. In addition, Indiaagreed to provide Nepal with a supply of 460 cusses of waterand, provided the surplus was available, a supply of up to 1000cusses from the Sarada canal should cultivation expand at anytime in the future. 27 This project was initially undertaken toprovide irrigation facilities in the Indian state of Uttar Pradesh24 B. Subba, “Tapping Himalayan Water Resources: Problems,Opportunities and Prospects from a Bhutanese Perspective” (1994) in 4Water Nepal, p. 210; also see R. S. Kharat, Bhutan in SAARC: Role ofa Smaller State in a Regional Alliance, New Delhi: South Asian Pub.,1999, pp. 97-99.25 B. Subba, Himalayan Waters, Katmandu: Panos south Asia, 2001, p.204.26 N. D. Gulhati, Development of Inter-State Rivers: Law and Practicesin India, New Delhi: Allied Pub., 1982, p. 166.27 Supra note 20, p. 201.
188 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 189(UP) at her own cost and initiative, and so it was natural forIndia to accrue benefits for herself. However, an assessment ofthe treaty provisions seems to indicate that much of the benefitswent to India inequitably, since Nepal swapped its ownterritory with India to make this project feasible; sucharrangements are rarely encountered in international water caselaw elsewhere.Another water resource project involving Indo-Nepal cooperation,the first to be undertaken after the independence ofIndia, was the Kosi Project Agreement, being a multipurposescheme including hydropower generation (20,000 KW).However, a major component of the project was flood controland irrigation, the so-called "sorrow of Bihar" 28 , whichannually caused tremendous loss of lives and property severaltimes mainly in India, but also in Nepal. The project wasconceived and several studies were undertaken from 1946;however, by 1954 it was considered urgent to implement theproject in order to eliminate and mitigate the recurrent anddevastating effect of the Kosi flood during the monsoon season.The Kosi scheme consisted of a canal system, flowing channelson both sides, a barrage across the river and a hydro station.The barrage consisted of 56 gates and was 3770 feet long. Thepurpose of its construction of the barrage was to minimise theerosion of soil and deposit of silt. 29 For the project,embankments were constructed on both sides of the riverextending for about 130 km downstream almost up to theconfluence of Kosi with the Ganges, to ensure flood protectionof approximately 280,000 ha of land; a diversion structure wasalso built for a network of canals to provide irrigation to a totalof 1,150,000 ha of land. 30 However, the project was seriouslycriticised at all levels in Nepal, the complaint being that it was asell out of national property for India’s benefits and thatnothing had been obtained for Nepal in return for a hugeexpenditure of resources. Political unrest and generalresentment within Nepal resulted from this outcry. Eventually,India agreed to reconsider, 31 and the revised agreement inwhich some of Nepal’s concerns were accommodated wassigned on 19 December 1966. Thus, in view of the assurance ofthe then Indian Prime Minister Lal B. Sastri, Nepal agreed toresume work on the project. Pursuant to the revised agreement,some arrangements were changed to assure Nepal's 32 benefit:• Any construction or other undertaking by India inconnection with the Kosi Project was to be planned andcarried out in consultation with the NepaleseGovernment. Nepal was to provide facilities to theIndian officials necessary for surveys and investigationsinside the project area, for the maintenance andoperation of the project.• The land needed for construction works was to beleased to the Indian government in return forcompensation payments.• It was agreed that Nepal should have the right towithdraw water from the Kosi and its tributaries as andwhen required.• The Government of Nepal would be entitled to obtainfrom India, for use in Nepal, up to 50% of the totalhydroelectric power generated by any powerhousesituated within a ten-mile radius of the barrage site.• The land acquired and leased to India, which wasinitially given for an unlimited period, was now to be28 Ibid.29 Ibid. pp 95-98; also see supra note 17, pp. 200-202.30 T. Prasad, "Comprehensive Water Resources Development in Indo-Nepal Region: Perspectives and Prospects” presented at a conferenceon Large Scale Water Management held in Kathmandu, 1997, p. 18.31 Ibid. Also note that the Indian Power and Irrigation Minister, K. L. Raogave assurances that the Treaty would be revised in 1962-63 during hisvisit to Nepal and in 1965 during the visit of Prime Minister Lal B.Sastri visit this was again assured, supra note 17, pp. 100-101.32 Ibid. pp. 100-102.
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International WatercoursesLaw and I
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PrefaceIn this book, the author has
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International Treaties and other Do
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