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

210 / International Watercourses Law and Its Application in South Asia Prospects and Problems of Nepalese Water Resources / 211rehabilitation and resettlement. In the Nepalese scenario, thefirst question which confronts the planner and policy maker iswho will purchase the electricity. India is the sole buyer so farand without her agreement Nepal cannot export to Bangladeshor Pakistan. Evidently, other optional markets such as China,must be researched. The other issue is whether by building adam in the upper riparian country, the flood problem can bereduced and low water flow increased for irrigation benefit ofthe lower riparian country. The upper riparian state must bepaid by this beneficiary proportionately on the basis of benefitsfrom the construction of a dam and basin management,similarly to the case of the Columbia River Treaty. 91 It shouldbe noted that through building a dam, the upper ripariancountry may obtain hydropower benefit, but will submerge herland and lose other wealth, flora, fauna, fish stocks, andbiological diversity; there will also be a need for rehabilitationand resettlement of the peoples etc. Moreover, after about fiftyyears such sites will be unable to give benefits as a result of thesedimentation, and any chance to reuse them is lost for ever. 92The position of the lower riparian country, however, will bedifferent to that of the upper riparian one; she will be moreconcerned about regulating and increasing low flow, aboutflood control, and about extra irrigation costs. For example, inthe case of the KMP, India is refusing to share irrigation andflood control benefits, stating that she had already constructed acomplete flood protection project along the Karnali by buildingand maintaining embankments on either side of the river athuge cost. 93 However, in practice, these embankments are notable to eliminate or check flood damage in other than normalyears; construction of reservoirs is more successful inimpounding flood waters, such as in the Yangtze River in91 K. Prasad, “Priority and Institutional Development” (1994) in 4 WaterNepal, p. 221.92 Supra note 21, p. 284.93 Supra note 22, p. 345; also see supra note 21, p 284.China. 94 Furthermore, it has been established that even afterconstruction of these embankments, the havoc caused byflooding has not often been mitigated or reduced; on thecontrary, there has been tremendous loss of life and propertyfrom the flood water draining from Nepal during the recentrainy season. It is a proven fact that in Bihar the embankmentcontributed much more to flood damage than it did to anyprotection, and during the peak flood period people actuallydestroyed the so-called flood protection measures in order toprotect their lives and property. 954.8 Problems and Prospects of Nepalese WaterResourcesIn Nepal, it is a known fact that the development of the countrydepends upon the utilisation of her vast water resources, andalso upon tourism. It is also known that in the past, whateverwater projects were carried out in co-operation with India,Nepal did not adequately benefit. It was reported by one author,B. C. Upreti, that King Birendra of Nepal himself onceremarked that his country had been cheated by India in the caseof the Kosi and Gandak. 96 In political elections in Nepal, waterissues have always been a 'hot potato'. It was evident that afterthe conclusion of the Memorandum of Understanding (MOU)in connection with the Tanakpur Barrage, the Nepali CongressGovernment became the target of much political criticism fromwithin Nepal. The dispute was referred to the Supreme Court,which declared that the said MOU is a kind of treaty whichdealt with the sharing and allocation of national resources;hence it falls within the provisions of the constitution of theKingdom of Nepal, 1990, Article 126, and needs to be ratifiedaccordingly. 9794 A.B. Thapa, “Kosi Floods” in 21 Spotlight, Nepal, September, (2002).95 Supra note 48, pp. 87-135.96 Supra note 17, p. 110.97 Judgement of the Nepalese Supreme Court in the case of B. K Neupanev. His Majesty's Government (8 May, 1995), Nepal, including theCouncil of Minster and Ministry of Water Resources.