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

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Legality River Linking Project / 257 258 / International Watercourses Law and Its Application in South AsiaChapter- FiveLegality River Linking Project5.1 IntroductionIndia and her neighbours have been unprecedently witnessingrecurring phenomenon of flood, drought and famine over theyears. This has been blamed for unsciencetific use of resources,forgetting the rule of hydrology, overuse, and unsustainable useand burgeoning population in comparison with the availabilityof fresh waters. The population and the availability of water donot match in India. With 4% water resources and 15% worldpopulation, which is rising and likely to touch almost in 25% in2050, the situation will obviously worsen. In India per capitaavailability of water was 6,008 cubic meters in 1947 and todayit is 1,700 cubic meters and by the year 2050, it will be 1,140cubic meters. This is because of excess water availability in theBrahumputra basin is as high as 13,000 CM while suchavailability in Pennar area is just 300 CM. 1 The paradox offlood in Assam and Bihar and at the same time misery causedby unprecedented long drought is another story of devastationof large section of people and property. However, R. R. Iyerwho denied recognising the paradox of floods and droughtrather considers these are merely facts of geography that governour lives. The occurrence of floods in one area, and the scarcityof water in arid or drought- prone areas, are two entirelyseparate questions and need separate resolution. 21 Suresh Prabhu, "Garland of Hope: River-linking as a Solution to WaterCrisis" August 14, (2004), Times of India2 R. R. Iyer, "Rising Rivers, Arid Lands: Interlinking will not Solve theProblem" July 20, (2004) The Times of India.5.2 Magnitude of the ProblemThe recurring droughts and floods have been the major cause ofhuman misery, poverty and backwardness of entire south Asia.The water resources of South Asia have not been fully utilizedfor the benefits of the people regardless of the acute need of theabundant waters for the development and livelihood of theregion’s people. The irony is that both natural calamities arisingout of an excess of water as well as its scarcity are taking placeat the same time in different places of the same states of Indiaand some parts of other nations as well. Sometimes, it is hard tobelieve how flood and drought occur simultaneously and leadto destructive surpluses and also situations of acute water stresswithin and across states of the same region. The lack ofscientific water management and utilization in a holistic andintegrated manner has been blamed for this state of affairs thatneed not necessarily be abandoned to the vagaries of nature.The other factor that has been blamed for this state of affairs isthe phenomenon of climate change, and its impacts onprecipitation and nature. However, even though the evidencesput forward in support of climate change may warrant furtherresearch for full confirmation, it is widely believed that itsimplications for the erratic nature of hydro-meteorologicalextremes experienced recently cannot be brushed aside as merespeculation. Apart from this, the consequences of human nonactionsuch as mismanagement, non-cooperation amongst statesand lack of strong political to resolve these issues are alsobelieved to be the contributing factors. This Chapter criticallydeals with the issues and implications of India’s plan anddemonstrates what the problems are and where the solutions liefrom a legal viewpoint.It is not just the predicament of a particular year but one thathas been replete year after year with a loss of properties worthbillions and a tragic toll of thousands of precious lives.Politicians tend to voice radical slogans to end this humanmisery when there is flood and drought, particularly during
Legality River Linking Project / 259 260 / International Watercourses Law and Its Application in South Asiaelection time. Once the elections are over, and the leaders andparties get elected, they tend to forget people’s miseries and goabout business as usual for personal or partisan gains. The fewworks that get done to ameliorate the situation are far fromadequate to cope with this enormous task.3 The littlecompensation or relief provided in the aftermath of thecalamities is always insufficient. The compulsions of the rulingelite in not being able to resolve these formidable challengesneed to be understood before arriving at a substantialconclusion and blaming someone without sufficientunderstanding. The other point of significance is that the lack ofcooperation between states, either members of a federation orsovereign nations, has become the cause of suffering for all thepeople of the SAARC Quadrangle. 4The basic point from the view of hydrology and internationallaw is that a watercourse should be taken as a single entity,from its origins in the high Himalayas of Tibet to the point ofits drainage into the Ocean. Moreover, it is a rule of nature andthe watercourse itself. Therefore, a nation or a state could notclaim such watercourse as its national wealth alone but as apartner or a member of the basin. Thus, any development,allocation and sharing from such a shared watercourse shouldbe undertaken in such a way that every state’s share will not beinfringed upon, nor any harm and injury caused to it from suchuse and everyone should be benefited equitably. TheInternational Court of Justice in its judgment of 1937 in theRiver Oder case resolved these issues forever, and since then,this concept has received universal recognition and is regardedas a rule of customary international law. 5 Against thiscontextual setting, Bangladesh could not claim the3 D. Gyawali, Water in Nepal, Kathmandu: Himal Books, 2001, pp. 87-135.4 B. G. Verghese, Waters of Hope, Oxford & IBH Pub., New Delhi,1990, p. 374.5 Denmark, Germany, France, Great Britain, Sweeten, Czechoslovakia v.Poland, PCIJ Report 1937. pp. 221-222.Brahmaputra or India the Ganges, or Nepal the Kosi or Bhutanthe Sunkos, as a solely national river and do whatever it wishedto fulfill the requirement within one’s territory only. This basicconcept and framework has been largely ignored by the nations,which should be seen as the crux of the problem in the sharingand allocation of shared watercourses among the nations anddeveloping projects unilaterally against the core theme ofinternational law. As a major partner of these watercourses, ifwe study the law and tradition within India in its interstatewater conflicts, such concepts and views have beenunanimously accepted and widely practiced. For instance,Godawari River Water dispute, Cauvery River Water disputeand other disputes are the living testimonials of this area. Onecould question how India could behave or expect to acceptconditions of allocation and sharing of waters which are againstthe norms that it has already been practicing, whether in itsdispute with Pakistan pertaining to the Indus River Treaty,inter-state disputes or the accepted norms in relation with thethen east Pakistan pertaining to the Karmaphuli river- along theAsam-Meghalaya border. 6Much has transpired since then and so has the politicalenvironment of south Asia. Moreover, many things havechanged since the Koshi and Gandak river treaties with Nepalin the 1960s, the 1975 treaty on the commission of the Farakkabarrage, the 1977 Ganges treaty and so forth. There isdemocracy with democratic institutions in the SAARCQuadrangle, which has altered the structure of governance andthe power base of the governments as well. In this context, it isnot only the governments that should be heard but also civilsocieties, NGOs, INGOs and a host of stakeholders, whoseconcerns must also be accommodated. That is to say, amonopolistic and hegemonistic approach is no more palatableor tolerated so that democratic norms should somehow befollowed. Such changes in mindsets can be witnessed6 T. Upreti, "Inundation problem in Indo-Nepal Relations" April 29(2004), The Kathmandu Post.
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International WatercoursesLaw and I
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