AMENDMENT OF GANDAK TREATY MUST PRECEDE
BURI-GANDAKI PROJECT IMPLEMENTATION
AB Thapa
The 1959 Gandak Treaty signed between Nepal and India was very harmful to Nepal. It totally curtailed Nepal’s right to use Gandak water for use inside Nepalese territory. The 1964 revision of this Treaty has helped to lessen significantly its negative impact. Nonetheless, even now Nepal is barred from using the Gandak water in dry months for transvalley uses in the months of February to April. After the completion of the Buri-Gandaki Storage Project the dry season flow of the Gandak might almost be doubled. Now it is the most opportune time before we take the decision to implement the Buri-Gandaki Storage Project to press India to amend the Gandak Treaty to lift the restriction on transvalley uses of the Gandak water inside Nepalese territory in the months of February to April.
How Gandak Treaty 1959 Curtailed Nepal’s Right
After 1951 Nepal had signed two treaties with India on water resources in 1950s. They are the Kosi Treaty signed in 1954 and the Gandak Treaty signed in 1959. Soon after their signing Nepal realized that both these treaties were detrimental to Nepal's interest. Particularly the Gandak Treaty was the most harmful. The Article 9 of the Gandak Treaty that curtailed Nepal's water right is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purpose from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time and His Majesty's Government agrees that they shall not exercise this right in such manner as is likely, in the opinion of the parties hereto, prejudicially to affect the water requirements of the Project( it is the Gandak Irrigation Project) as set out in the schedule annexed hereto."
The monthly water requirements provided in the schedule were either very close or exceeded the river flows baring few months of the monsoon season. This treaty would have virtually ended the future prospect for irrigation development in the Gandak Basin within Nepalese territory.
India and Nepal Share Common Principle
India is the downstream riparian of all the rivers flowing across the boarder from Nepal. Our country will have to deal exclusively with India in water issues. Fortunately both Nepal and India not only have a common cultural heritage that binds them together, but also subscribe to similar principles in water right issues. Both the countries believe that water belongs to the country where it originates, and the existing consumptive uses of the waters of a river cannot in anyway deprive the upstream riparian country of her right to consumptive use of the same waters. Because of such similarity in views on water right principles it was not too difficult to amend the existing agreements on water resources with India that were detrimental to Nepal's interest
India Defended Upstream Riparian Rights
The Indo-Pakistan dispute on the Indus arose immediately after the partition in 1947.
M. Zafrulla Khan, the Pakistan representative in the Security Council presented about it during a Security Council debate on the 16th December 1952. The partial text is given below:
"The partition of the Punjab cut across the river system of the Province…….The partition line was so drawn that two of the rivers - Sutlej together with its tributary Bias, and Ravi - while originating in India, later on flow into Pakistan….On April 1, 1948…. India turned off the waters of these rivers which used to flow into Pakistan.."
India's position on the water right principle she is subscribing to has been clearly stated in the Indo-Pakistan Agreement on Indus (Interim) signed on the 4th May, 1948. It is stated: "..the propriety rights in the waters of the rivers in East Punjab (India) vest wholly in the East Punjab.."
West Punjab( Pakistan) disputed India's contention. Its view being that in accordance with international law and equity West Punjab had a right to the waters of the East Punjab rivers. Finally India and Pakistan came to an agreement. The Indus Treaty was signed on September 19, 1960. The Indus Treaty provided that the waters of the contentious rivers Ravi, Beas and Sutlej would be for the exclusive use of India. However, India would have to pay Pakistan some compensation for the construction of projects to tap other rivers in Pakistan to replace the supply from the above three rivers.
Barcelona Convention and India
India needed a greater part of the Ganges flow in the dry seasons for flushing the silts into the sea from the port area in Calcutta. India must have considered that it is allowed to take up a scheme to divert the flow because of her sovereignty right over the domain. However, the Ganges is a navigable river. The diversion would have violated the International Barcelona Convention on the regime of navigable waterways. This convention was ratified by British Empire that included India also in 1922. India to free herself to undertake the Ganges diversion scheme, denounced the Barcelona Convention to take effect from 26 March, 1957. Soon after that India commenced the Ganges diversion scheme at Farakka in 1960s.
Revision of Gandak and Kosi Treaties
The Kosi and Gandak Treaties were binding upon Nepal. The Vienna Convention on the Law of Treaties states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. It requires the consent of both the signatories for changes and amendments unless there is a special provision for it in the treaty. Nepal succeeded in convincing India that both the treaties should be amended to protect Nepal's vital interest.
The Gandak Treaty was revised on 30th April, 1964. The Article 9 of the revised treaty is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purposes from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time in the valley. For transvalley uses of Gandak waters separate agreements between His Majesty's Government and the Government of India will be entered into for the uses of water in the months of February to April."
The revised treaty is a big improvement over the previous one. However, the use of Gandak water for transvalley uses in the months of February to April has been restricted.
Further Revision of Gandak Treaty
Buri-Gandaki river is a major tributary of the Gandak. After the completion of the Buri-Gandaki Storage dam the dry season flow of the Gandak in the months of February to April might almost be doubled. Nepal must seek further revision of the 1964 Revised Gandak Treaty to drop the Clause restricting the use of Gandak water inside Nepal in the months of February to April. We must further amend the Gandak Treaty before we take the decision to implement the Buri-Gandak Storage Dam project. After such additional revision the Gandak Treaty would be on a par with the 1966 Revised Kosi Treaty in terms of complete recognition Nepal’s right to use water of the Gandak and its tributaries.
1966 Revised Kosi Treaty
The Kosi Treaty was revised on 19th December, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. The Article 4 ( i ) of the Treaty related with the water rights has been presented below:
"HMG shall have every right to withdraw for irrigation and for any other purpose in Nepal water from the Kosi river and from the Sun-Kosi river or within the Kosi basin from any other tributaries of the Kosi river as may be required from time to time. The Union ( it indicates India ) shall have the right to regulate all the balance of supplies in the Kosi river at the barrage site thus available from time to time and to generate power in the Eastern Canal."
