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

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190 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 191given for 199 years, during which sovereign rights andterritorial jurisdiction would be retained by Nepal. 33From the legal viewpoint, significant changes were made in theagreement, such as the right to divert water from the tributaries,Nepal’s involvement in the project implementation, and, lessbeneficially, the lease for land prescribed for 199 years. Despitethis, even after the revised agreement and its execution, theoriginal intention to bring these benefits to Nepal has not fullymaterialised. The Chatra Inundation Canal which was proposedto irrigate 66,000 ha of land in Nepal, has in the event only ledto the irrigation of 10,000 ha. Moreover, it was felt thatirrigation and flood control benefits to Nepal from the projectwould have been greater had the barrage site been locatedfurther upstream at Barahkesthra, as initially designed, butwhich was later changed to the Indo-Nepal border point. 34 Ithas been argued that in order to take maximum benefits fromNepal’s water resources, India had applied pressure and usedbargaining tactics, constantly pushing Nepal to agree on theKosi project for the period of 199 years, in exchange for a tradeand transit treaty renewable every 5 years (somethingunprecedented in world history), whereas the life of a waterresources project is normally considered to be 50 years. 35The Gandak Project Agreement (1959) is the third agreementthat was constructed to bring India benefits, i.e. flood control,irrigation and hydropower. On the Gandak, a barrage wasconstructed on a reach of the river, which forms the boundarybetween India and Nepal. The project was to provide irrigationto a gross command area of 1,340,000 ha in Bihar, 500,000 hain Uttar Pradesh (both Indian States), and 63,000 ha in Nepal.33 II YBILC 1974, p.p. 102-103. In the revised agreements Clause 1, 2, 3,4 (I & II), 5, 10 & 15 were amended.34 B. G. Verghese, R. R. Iyer, P.K. Ahamad, B. B. Pradhan & S.K. Malla(eds), Converting Water Into Wealth: Regional Co-operation inHarnessing the Eastern Himalayan Rivers, New-Delhi: Konark Pub.,1994, pp. 31-33.35 Supra note 8, p. 259.Utilising the head available on the main western canal, ahydropower plant of 15 MW was also provided for in theproject as a secondary benefit. 36 The fate of this agreement wasalso similar to that of the Kosi agreement: it was heavilycriticised by Nepali politicians. Subsequently both partiesagreed to revise this agreement; after its revision, some morebenefits were given to Nepal. Nonetheless, in relation to thecriticism, it has also been argued that in those projects India hasinvested a huge amount of money, manpower and technology,and that it is therefore natural that she should accrue morebenefits than Nepal. 37 To some extent, the argument is valid;however, Nepal’s interests cannot be ignored entirely.The road bridge constructed under this project, for which Nepalwas assured of a locking arrangement for facility of riverinetraffic across the barrage free of any tolls, has proved to be aprovision that has so far remained mere theory, as no inlandwater navigation was developed. The other fundamentalrecognitions of Nepal’s rights which were accorded enabled herto make upstream withdrawals. In the view of many Nepalese,Nepal was again cheated and exploited. Sharma, a prominentgeologist, maintained that:"…had Nepal been economically strong, it wouldhave constructed the entire system and sold thebenefit at a fair price to India by utilising herterrain as a resources site…". 38Nepal’s concern and objections are understandable, as thepromises made in these treaties were never fulfilled by India;for example the Chatara canal under the Kosi agreement, whichremains defunct and which Nepal had to renovate with an IDAloan after she took over its operation in 1976, and thenavigation facility as stipulated in the Gandak agreement,which was never undertaken. Similarly, the hydro generation36 Supra note 17, pp. 102-108.37 Ibid. p. 107.38 Supra note 21, p. 280.
192 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 193from the Kosi project was never carried out. Furthermore, Indiaobjected to Nepalese projects such as the Kanakai MultipurposeProject (38 MW) funded through Asian Development Bankassistance, the Maulghat 38 MW hydropower project, and theSikta, Babai and Rapti irrigation projects, stating that theywould affect its existing consumptive rights. 39 On the otherhand, India developed several irrigation projects, damming therivers along the Nepal border without providing the requisiteinformation; consequently these projects have submerged largepart of Nepalese territory. 40 Hence, these illegal activitiescaused significant harm to Nepal. Furthermore, the donorswilling to lend money to Nepal to develop a water projectrequired Indian consent, whilst in the case of India, they neverasked for Nepalese consent or even furnished any informationabout the above projects. 41 From a legal standpoint, Nepal’sentitlement to “equitable and reasonable use” has beenexplicitly denied in these treaties, contrary to the principles ofArticles IV and V of the Helsinki Rules and Articles 5, 6 and 7of the UNCIW. For example, Nepal’s share of irrigation wasless than 3% of the total area watered by the Kosi and theGandak Scheme. 42 Nevertheless, from an academic and legalpoint of view, one-sided criticism of these treaties does notfacilitate future development, and due credit should be given forthe fact that these agreements were carried out with sovereignconsent and incorporated subsequent amendments accordingly.39 D. R. Pandey, Nepal’s Failed Development: Reflections on the Missionand the Maladies, Kathmandu: Nepal South Asia Centre, 1999, pp.336- 340.40 Supra note 22, pp. 340-341.41 Staff, “the World Bank discriminates us”, The Kathmandu Post 6,2002; stated that the World Bank had lent the money to the Indian stateof Uttar Pradesh to develop an irrigation project but did not evenprovide notice to Nepal (this information was provided by S. N. Paudelin a seminar on 5/8/2002, “Riparian consent and the World Bank”,Kathmandu); on the other hand, it has sought Indian, Bangladeshi andChinese consent for lending money to a Power Development Fund inNepal. Later, US $80 million fund was provided and no objectionswere made.42 Supra note 25, pp. 192- 193.A fourth treaty is the 1996 Treaty concerning the IntegratedDevelopment of the Mahakali River Including Sarada Barrage,Tanakpur Barrage and Pancheswar Project. This is the firsttreaty to accommodate, in principle, the interests of bothnations equitably. However, its execution has also beenhindered and not as much progress has been made as wasexpected during its conclusion. The Mahakali treaty includesthree components: the Sarada Barrage, the Tanakpur Barrageand the Pancheshwar Project. The first two projects havealready been executed by India at Mahakali on the Indo-Nepalborder at her own cost. For her contribution to the TanakpurBarrage, Nepal was provided with a supply of 1000 cusecs ofwater in the wet season and 300 cusecs in the dry season, andan annual supply of 70 million kilowatt-hours of energy on acontinuous basis, free of cost. India is to construct the headregulator and the waterways as well as the transmission line upto the Nepal border. The waters of the Mahakali River from theSarada canal and from the Tanakpur Barrage have beenincorporated in this treaty, replacing all such previousagreements. 43 However, the Mahakali treaty has not yet beenimplemented and the criticism is made that the intention ofIndia was never to execute the Pancheswar project, but rather toensure the continuity of the defunct Sarada benefits and legalisethe contentious Tanakpur project, which was constructedentirely for Indian benefit, ignoring Nepal’s legitimate halfentitlementwith respect to such a boundary river. Furthermore,the constitution of a Mahakali Commission comprising anequal number of members from each country, shall be guidedby the principles of equality, mutual benefits and no harm toother party which would be responsible for implementing thetreaty, is vital. However, such commission has not yet beenconstituted.The provisions of this treaty constitute the first time that, in achanging context, India is willing to join hands with Nepal in43 36 ILM (1997) pp. 533-535; also see supra note 39, p. 336.
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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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