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

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206 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 207and can generate unprecedented goodwill and additionaleconomic benefits to Nepal. 794.5 Impact of Bilateral Relations in the WaterResources SectorIt is natural for sectoral issues to be influenced by the majorpolitical relations between the nations, and the whole gamut ofIndo-Nepal relations has been influenced by politicalrelationships. India has time and again complained and assertedfull implementation of the 1950 treaty, its related Letter ofExchange, and the Arms Dealing Agreement of 1965. She hasexplicitly expressed unhappiness and demanded the withdrawalof work permits imposed on Indian nationals, elimination ofanti-India activities from Nepal’s soil, and the protection oflives and property of Indian-origin people living in Nepal;furthermore she has pushed for most favourable treatment forIndia’s trade and business, arguing against the imposition ofany type of tariff. 80 Furthermore, Nepal has been required toemploy Indian firms and consultants in any global tendercarried out with donor co-operation, and rely upon them toimport arms, ammunition etc. and to regulate and executeNepal’s foreign policy in harmony with their own wishes. Thisis against the Charter of the UN 81 and is simply not possible foran independent nation, because of her divergent needs,interests, and aspirations. As regards the problem of harnessingthe Himalayan Rivers, Verghese and Iyer, both Indian writers,79 P. D. Kaushik, “Indo-Nepal Relations and Gujral Doctrine- Bouquetsand Brickbats” in India and Nepal: Big Power-Small Power Relationsin South Asia, M. D. Dharmdasani (ed), New Delhi: South Asian Pub.,2001, pp. 55-62; also see B. C. Upreti, Uneasy Friends: Readings onIndo-Nepal Relations, New Delhi: Kalinga Pub., 2001, p. 186.80 Supra note 65, pp. 175-180.81 D. J. Harris, Cases and Materials on International Law, London:Sweet & Maxwell, 1998, Article 1 (2) & Article 2 of the Charter, p.1048.has stated that co-operation amongst riparian partners is theonly answer for all south Asian societies. 82Therefore, any sector’s relations can not be developed inisolation, rather they should form part and parcel of the entiregamut of relations. India’s diplomatic policy is to useeverything as a bargaining point or a political tool to ensure thatshe obtains maximum benefit from Nepalese water resources;from Nepal’s viewpoint, there are several issues that need to beresolved, e.g., transit and trade issues, security concerns andequitable utilisation of her IWC. Although some suggest,requiring in abrogating Nepal’s treaty relations with India, theaffirmed position of Nepal and they are advocated by the authoris that whatever has been already agreed or concluded in earliertreaty instruments should be properly implemented; her wish issimply to attain equitable benefits from the resources availablein any new treaty arrangements. For this to be achieved, theattitude of India hitherto should be reversed. 83It can be argued that to establish excellent relations with Nepal,India must first open-heartedly offer an unconditional transittreaty of unlimited period based on customary international lawand in line with other European landlocked countries enjoyingsuch rights. It is worth noting here that Nepal's dream of accessto the sea, only possible through India, has not yet materialised,but rather has received a setback in March 1956, when Indiaofficially denounced the Barcelona Convention of 20 April1921, and the Statute on the Regime of Navigable Waterwaysof International Concern, and further hampered navigation bycompleting the Farakka Barrage project. 84 Additionally, Indiahas been unwilling to consider any suggestion of a Nepal-Bangladesh navigation link through the strategic Siliguricorridor, which would be a milestone in facilitating Nepalese82 Supra note 20, p. 172.83 Supra note 61, pp. 120-133.84 Supra note 21, p. 278.
208 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 209trade and industry. 85 Nepal exchanged land to facilitate theSarada Project in 1920 and provided land to facilitate theTanakpur project; now it is India’s turn to provide this facilityon a reciprocal basis. Nepal’s view is that, instead of thepoliticisation of these issues, they should be tackled as tools ofeconomic development. Even after the ratification of theMahakali Treaty, the Nepalese parliament issued a strictureagainst the spirit and letter of the treaty which tied the hands ofthe government, preventing them from finalising the DPR andimplementing the treaty pursuant to the treaty provisions. 86Moreover, India has flatly refused to acknowledge thesestrictures and is holding to the treaty arrangement. 874. 6 Negotiations on Water Resources ProjectsIn order to grasp the unique opportunities afforded by Nepalesewater resources, Nepal alone does not have the capacityeconomically, technologically, or in skilled manpower, noreven the consumer demand to absorb such huge benefits. Onthe other hand, neither is India alone able to utilise thoseresources without meaningful co-operation from Nepal,because Nepal offers an ideal location for project construction,namely the Siwalik gorges of the Himalayan foothills; this siteadditionally enables construction of short transmission lines toan area where the need for hydropower is acute. Such a uniquelocation offers tremendous benefits in mitigating flood hazards,85 Ibid. p. 136: an alternative is through a 16 kilometre long tunnel linkoriginating from the eastern part of Nepal, passing through India at adepth of 300 metres and coming out at the western border ofBangladesh; also see G. D. Shrestha, "Himalayan Water: Need forPositive Indo-Nepal Co-operation" (1994) in 4 Water Nepal, p. 272.86 Stricture adopted by the parliament subsequent to ratification containsfive conditions of which the second directs the government not torecognise consumptive use of the second lower Sarada Project, and thethird seeks to resolve the status of Mahakali River and also to resolvethe longstanding border issue in the Kalapani area. These instructionswere provided on 2054/4/12 Nepalese calendar date.87 Supra note 48, pp. 53-65.the augmentation of water flows in the dry season, hydropower,irrigation and navigation facilities. 88 The water talks betweenthe two countries have always been dominated by their politicalrelationship. Whenever the general atmosphere of politicalrelations between the two countries has not been encouraging,the water talks have not yielded any result, but ratherintensified bitterness instead of enhancing progress. On the onehand, Nepal is very suspicious of India’s attitude, on the basisof past experience concerning Kosi and Gandak; on the otherhand, India is alleging that Nepal is not really interested indeveloping those vast resources for the mutual benefits of thepeople of both countries. 89There are several projects which have been identified for betterco-operation; of these, the Karnali Multipurpose Project (KMP)is one of the biggest and most attractive, at 10,800 MW. Thetwo countries have been discussing this project for the last fortyyears and a number of feasibility studies and surveys have beenconducted. Apart from power generation, this project isenvisaged to control flood and sedimentation problems in theKarnali river basin. From these studies, the project cost was $4.4 billion at 1989 prices. 904. 7 Associated Multi-Disciplinary ComplicationsThere are interconnected issues which need to be resolvedbefore initiating a water resource project. The completion ofany such project takes much time and investment, and severalother issues must be dealt with simultaneously, includingenvironmental aspects, seismicity, socio-economics,88 Supra note 13, p. 256.89 Supra note 21, p. 280, C. K. Sharma, an eminent scholar, has pointedout that "now the situation (after the Kosi and the Gandak agreements)is such that no politician or bureaucrat will ever dare to stake his careerand fame on dealing with the sensitive issue of water resources, whichinvolves the question of sharing between and among riparian states.”90 Supra note 22, p. 344.
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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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ADBAJILAus.JILAYBLADPILALCCASEANAGO
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GlossaryMap of the Ganges BasinThe
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Chapter- ThreeEquitable Utilisation
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Introduction / 1 2 / International
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