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

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Legality River Linking Project / 261 262 / International Watercourses Law and Its Application in South Asiaeverywhere in the world and south Asia cannot remainunaffected from this trend. Transparency in projects with dueconsideration of the socioeconomic, seismic, hydrological,climatic, environmental, human rights and other relevant issuesare key element for the successful implementation of any watersharing and allocation treaty. These issues must be integrated inall international, regional and municipal projects. Moreover, theapplication of International Water Law and the norms that haveevolved over time to the present with a cooperative attitudebetween and among riparian states leading to a reasonable,sustainable and equitable utilization of the resources of sharedwatercourses is an inevitable element for any significantconsensus to materialize. 7 Furthermore, the existing needs,future water requirement, the alternatives available to fulfill thediverse demands, and other issues of similar nature must beevaluated in the context of the prevailing economic base inorder to arrive at a sound conclusion. Nevertheless, these arethe very complex issues that require meticulous analyses andspecial consideration. The key to any amicable resolution formutual benefits remains unrestricted political will andwholehearted cooperation propelled by a positive forwardmoving mindset thereby reversing the parochial approach of thepast.While considerable parts of the country have been deluged byrivers in spate, it is common tradition for people in the otherparts afflicted by drought at the same time to worship and prayfor rains in south Asia. For example, this monsoon season only,floods seriously affected 33 of the 39 districts of Bihar withenormous loss of lives and property. The proposal of buildingthe Kosi high dam has been in the air since the last 60 years andhas been repeated at the highest political levels wheneverfloods strike havoc in Bihar. 8 Prime Minister M. M Singh ofIndia has been quoted as referring to it again as a joint team oftechnical experts of Nepal and India are preparing to conductfield studies planned to be completed within three years.However, from the national point of view, sufficient discussionand deliberations have not been held on how to protect nationalinterests of both nations. The primary purpose of the proposedproject, it seems, is to relieve the people of Bihar from thescourge of recurrent floods of the Kosi River. The expected lifeof the Kosi barrage at Bhimnagar is said to be almostexhausted. However, it is imperative that lessons must belearned from the past treaties and their implementation in orderthat Nepal get a fair and equitable deal from this undertaking.It appears that India is expected to reverse its past policy andwork unprecedently as an equal partner for the commonbenefits of both nations and Nepal should get the unhinderedright of access to and from the sea from the proposed Kosinavigational canal. Moreover, Nepal's upstream water rightsand the consequent provisions of the proposed Sunkosidiversion project and other diversion as and when requiredmust also be simultaneously recognized as Nepal's entitlementpursuant to the provisions of international law and practice.From the Nepalese side, over-politicization of the issues,harbouring the small brother syndrome, and lip service to Indiaby the politicians and political parties to stay in power must notbe allowed in any way to subdue the meticulous exercise anddue diligence that needs to be performed in optimizing to thebest the benefits to be gained from the project for the nation.This is invariably the urgent and by far the most pressing needof the hour. If we understand this sensitivity and workaccordingly, both nations will be sufficiently benefited therebymitigating to a great extent the chronic diseases of flood,drought, famine and underdevelopment.7 F. Marty, "The Pancheswar Multipurpose Project on the MahakaliRiver (India-Nepal), P. Lang (ed), Managing International Rivers:Problems, Politics and Institutions, Swiss Federal Institute ofTechnology, Zurich, 2001, pp. 160- 203.8 Supra note 3.
Legality River Linking Project / 263 264 / International Watercourses Law and Its Application in South Asia5.3 Legal issues Involve in the River LinkingProjectFresh water resources have remained the life-blood for nations,communities and individuals. Without fresh water, naturecannot sustain itself and life, as we know it, cannot beimagined. In this sense, water as the universal solvent andsustenance of the very fabric of life has always remained aninevitable substance for the survival of the people of the globeas well as their socio-economic development. Water sources inmany parts of the world have been stressed to the point ofscarcity. Even in the so called water abundant areas like SouthAsia, its uneven distribution over time and space combinedwith extreme weather events renders many areas exposed torecurrent floods and cycles of drought. Countries like India,Bangladesh, and even Nepal have been badly affected by thisannual phenomenon with a consequent loss of and heavydamage to property and infrastructures including human livesand livelihoods. 9 On the positive side, the underpinnings of thequest for a secure livelihood and economic well being of thepoverty ridden masses of the region also lie in the judiciousharnessing and utilisation of the available water resources. Forthis, conveying water from water surplus areas to water scarceareas at the right time and place is a concept cherished by manywell meaning planners and engineers.In this context, the Government of India has beencontemplating an ambitious plan to translate this concept of theRiver linking Project (RLP) into ground action. The idea is totransfer the waters from the areas of surplus traversed by theHimalayan Rivers in the north to the areas of deficit in thepeninsular south by linking 37 rivers. 10 The main area fromwhere the waters are to be diverted is the Ganga-Brahmaputra-9 Supra note 3, pp. 371-373.10 T. Upreti, "India's River-linking Project and Nepal's Concern" (23/4/2004), The Kathmandu Post.Barak basin, which accounts for 60 per cent of the surfacewater resources of the country and is also rich in ground water.However, the rivers that comprise this mega-basin areinternational watercourses and naturally, international politicsas well as international law are bound to be explicitly involvedin this proposed undertaking.In the latest development pertaining to the concept, thePresident of the Republic of India had proclaimed hisgovernment’s policy initiative on 14 August 2002, proposing anetworking of rivers for eliminating the scourges of the cycle ofdrought and flood and promoting the economic advancement ofIndia. The proposal was first conceived by Sir Arthur Cottonand later put forward by K. L Rao and Captain Dastur atdifferent times. In 1982, the National Water DevelopmentAgency was set up to study the feasibility of this concept. It hassubmitted a series of 30 links and claimed to have reportedlycompleted feasibility studies on eight links while other studiesare reported to be continuing with the target of completingthem very soon. Further studies on the project are beingconducted by a high level commission chaired by SureshPrabhu, former water resources minister, government of India.The watercourses that flow through the territories of severalcountries are common resources of all and should be sharedequitably. In other words, every interest should be heeded andbenefits shared in such a manner that reconciles each divergentinterest to the satisfaction of each concerned country. A reviewof the problems and conflict of interests persisting in south Asiasuggests that the problem is enormous and complex on accountof the fact that the prevailing law and the practice in the area isnot quite as clear as mathematics and the interpretation of therules could be different in different situations. For example, theissue of sharing of the waters of the Brahmaputra could bedifferent from that of the Ganges. Articles 5-10 of the 1997 UNConvention on Non-Navigational Uses of InternationalWatercourses provide sufficient guidance on how to share and
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PrefaceIn this book, the author has
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