Opinion (Spotlight Weekly)

International Water Right Issues And Nepal

By A.B. THAPA

India is the downstream riparian of all the rivers flowing across the border 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 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 its right to consumptive use of the same waters. Because of such similarity, it has not been too difficult to amend existing agreements on water resources with India that were detrimental to Nepal's interest.

Confusion Over Water Right Issues

Unfortunately, there is a big confusion in our country at present on what the correct national policy should be on international water right issues. It would not be an exaggeration to say we are virtually in total chaos. Perhaps due to complete lack of awareness of water right issues, we did not hesitate, at a recent UN-sponsored international legal forum, to move resolutions that would undermine the genuine rights of upstream riparian countries like ours. Such handling of affairs raises suspicions in the people's minds that our legal institutions do not take water right issues seriously. There is a group of Nepalese who have been saying all along that we should enter into an umbrella agreement on water resources with India to over all the rivers flowing from our country. Unfortunately, such a new umbrella treaty could throw into disarray the revised Gandak and Kosi treaties that have helped us to get full recognition of our legitimate right to ownership of those rivers. Moreover, the water right principles enshrined in the revised Kosi and Gandak treaties have proven to be very helpful in gaining recognition of our right to ownership of other trans-boundary rivers also.

International Water Law Making Process

Article 38 of the Statute of the International Court of Justice provides that the Court, whose function is to decide in accordance with international law - both in general and international water resources - such disputes as are submitted to it shall apply international conventions, treaties between states, customs, general principles of law, etc. Thus, it is necessary to analyze the reasons behind various past international disputes related with water, particularly in our subcontinent, that would give a clear picture about the stand of each country on matters of international water right issues. The Indus and Farakka issues are two perfect examples. Such study would help Nepal to develop a good strategy for protecting our own water rights without offending others.

The Indus Dispute

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 it during a Security Council debate on December 16, 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 it is subscribing to has been clearly stated in the Indo-Pakistan Agreement on Indus (Interim) signed on May 4, 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, Bias 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.

The Indus Treaty

India had been subscribing all along to the principle that water belongs to the country where it originates. India turned off the waters that used to flow into Pakistan to irrigate lands. India took such action according to N.D. Gulhati (the Indian negotiator for the treaty on the Indus) because East Punjab (India) was anxious to establish its exclusive ownership. In the final treaty on the Indus, the principle of establishment of right due to prior appropriation of water was ignored. The treaty went in favor of a principle based on the sovereignty of a state over its national domain. The Indus Treaty might have set a precedent for the future. But in Article 11, a special provision to restrict its use has been made. So it could not become a law. Article 11 of the Indus Treaty has been presented below:

1. It is expressly understood that

(a) this Treaty governs the rights and obligations of each party in relation

to the other with respect only to the use of the waters of the rivers and matters incidental thereto, and

(b) nothing contained in this Treaty, and nothing arising out of the execution thereof, shall be construed as constituting a recognition or waiver(whether tacit, by implication or otherwise) of any rights or claims whatsoever of either of the parties other than those rights or claims which are expressly recognized or waived in this Treaty. Each of the Parties agrees that it will not invoke this Treaty, anything contained therein, or anything arising out of the execution thereof, in support of any of its own rights or claims whatsoever or in disputing any of the rights or claims whatsoever of the other Party, other than those rights or claims which are expressly recognized or waived in this Treaty.

2. Nothing in this Treaty shall be construed by the Parties as in any way establishing any general principle of law or any precedent.

3. The rights and obligations of each Party under this Treaty shall remain unaffected by any provisions contained in, or by anything arising out of this execution of, any agreement establishing the Indus Basin Development Fund.

The Ganges Issue

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 the British Empire, which included India, in 1922. India to free herself to undertake the Ganges diversion scheme, denounced the Barcelona Convention to take effect from March 26, 1957. Soon after, India commenced the Ganges diversion scheme at Farakka in 1960s.

Recently, the Treaty of the Ganges water at Farakka has been concluded between India and Bangladesh. This Treaty has a similarity to the Indus Treaty in one important matter of great interest to us. It contains at the very beginning in the preamble of the Treaty itself a statement that this Treaty will not affect the rights and entitlements of either country other than those covered by the Treaty and will not establish any general principles of law or precedent.

General Principle of Law or Precedent

The Indus Treaty and the Treaty of Ganges could not be construed as establishing law or precedent because of the provision in the treaty to restrict such use. However, these treaties can help us to come to some important conclusions. We can infer from these treaties that in the absence of imposition of restriction, a treaty may be construed to imply the following:

It can set a general principle of law. It can service as a precedent for similar cases in future. Any one of the Parties can invoke a treaty, anything contained therein, or anything arising out of the execution thereof, in support of any of its own rights or claims whatsoever or disputing any of the rights or claims whatsoever of the other party.

The revised Gandak and Kosi Treaties do not have any provision to restrict their application in similar other cases. So they can serve as a precedent for similar other cases in future. As far as the trans-boundary river treaties are concerned, the Kosi Treaty is the latest. Thus the Kosi Treaty could serve as a precedent to Karnali and other trans-boundary rivers.

The Kosi and Gandak Treaties of 1950s

After the introduction of democracy in 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.

Revised 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. Nepal should be grateful to India for their consent to revise those treaties.

The Gandak Treaty was revised on April 30, 1964. 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 trans-valley 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. This treaty has re-established Nepal's full right to draw water for irrigation or any other purposes in the large valleys which are many in number in the Gandak basin. Similarly, the three Terai districts on the west of the Gandak river can also be brought under year round irrigation even without trans-valley conveyance system. Thus a new agreement with India might not be required in future.

The Kosi Treaty was revised on December 19, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. 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."

Why Is a Treaty Necessary?

A treaty is not required to reconfirm our right to ownership of our trans-boundary rivers. Nevertheless, it would be in our interest to reach an agreement with India to get full benefit from our water resources mega projects. However, it should not be an umbrella type agreement to cover several projects. The agreement should be specifically for separate project or projects.

Our mega projects are too big for our exclusive use. The Government of India must agree to provide unhindered access to their market for the hydroelectric power produced in Nepal. These projects, on top of the power benefit, could† provide significantly large downstream benefits to India. Nepal has every right to seek a fair share of the downstream benefits. We can draw a lesson from the Columbia River Treaty between the United States and Canada that provided Canada 50 percent of downstream benefits accrued from the use of regulated flow of the Columbia river in the United States. Obviously, an agreement with India is necessary to recover full benefits from any of our mega-projects.

(The writer is water resource expert)