Opinion (Spotlight Weekly)

World Bank And Nepal's Water Strategy

By A.B. THAPA

Water resources development in Nepal is in complete disarray. Despite generous foreign assistance, the task of harnessing the country's water resources is facing great difficulties. Each of the sectors falling under the overall heading of water resources, such as hydropower, irrigation, inland navigation and flood control, among others, is riddled with complications. It would be harmful for the nation to leave things like this for a long time. An elaborate study providing in-depth analysis of the current situation has become urgent. The advice given by the World Bank could carry great significance, provided it is implemented prudently by involving reputable foreign experts. Even short-term engagement by renowned experts would be useful in laying the groundwork for an effective water resources development strategy.

Focus on Major Problems

For quite some time, Nepal has been gripped by a fervor to prepare a water resources development strategy. The study, being carried out under the loan assistance of the World Bank, is going to be very important for the country. It is vital, therefore, to ensure that it does not contain anything that would be detrimental to the national interest. The water resources strategy cannot be treated like an inventory of past reports. A great deal of homework is needed. Analysis of our own information should be supplemented by information from other countries, particularly from those in the neighborhood.

The study should be able to correctly identify the major problems and prescribe the most appropriate solutions. In seeking to cover all relevant angles, the study must be careful not to lose sight of the specific problems that concern the country. There is a need to lay emphasis on the fact that water resources development strategy is not a complete substitute for the strategy to prepare a national development plan. Perhaps few people would want to know in minute details what portion of the population has access to safe water or the percentage of arable land having round-the-year irrigation. But they would expect from the water resources strategy a convincing answer, even if an approximation, to the problems that would have far-reaching consequences for the future of the country.

Draft Strategy Report

The strategy report, along with the ongoing work plan study, will be brought to the notice of relevant institutions and agencies very soon. Government institutions and the World Bank should ensure that the important features of the report are thoroughly reviewed and extensively deliberated upon. The report might require at several places significant improvements and amendments. Timely opinions of experts in the relevant fields would be crucial to the success of the strategy. A few observations on legal matters concerning the study are presented here.

Nepal's Constitution and Strategy

In the past, misinterpretation of Clause 126 of the constitution has placed the government in a highly embarrassing position. The government was virtually forced to annul the bilateral agreement with India on the Tanakpur barrage after the Supreme Court granted injunction against its interpretation of Clause 126.

The total benefit accruable from each of the large storage projects such as the Kosi, Karnali, West Seti and Pancheshwor is far in excess of the needs of the country. Whenever we embark on implementation of any of these projects, sharing of benefits automatically takes place. It is a different matter whether it happens deliberately or otherwise. We have the bitter experience of the Tanakpur barrage agreement. The government's mistake was not condoned by the Supreme Court, even though it was not deliberate. Now the government is sometimes seen trying to find a way to deliberately circumvent Clause 126 by planting a middleman between the two governments. There is a need to seek the opinion of constitutional experts on this matter. It is urgent to establish whether such a policy would be acceptable or would considered in breach of Clause 126. It is surprising that there is no mention in the strategy report of Clause 126, which serves as a mandatory guideline for the development of large water resources projects.

Umbrella Treaty With India

Anyone slightly familiar with Nepal's water resources problems would be shocked by the following statements in the draft strategy report: "All the river water flowing in Nepal ultimately drains into India. This irreversible geo-political reality calls for a long term, comprehensive arrangement between the two neighboring nations to address water resources issues that may otherwise lead to friction between both nations. For this, some of the elements that will be pursued..."

The above statements are completely biased against the rightful interest of Nepal. They fly in the face of existing bilateral agreements. The above recommendations are horrific indeed. But what is most surprising is the fact that they are contained in our own document. The statements would have been fit for a strategy report prepared for India, because it disallows Nepal to take advantage of its geographical location (because it is an upstream country), and political commitments. Previous agreements between the two countries are in favor of Nepal and are briefly described below.

The Kosi and Gandak Treaties of 1950s

After the introduction of democracy in 1951, Nepal signed two treaties with India on water resources in the 1950s: the Kosi Treaty of 1954 and the Gandak Treaty of 1959. Soon thereafter, Nepal realized that both treaties were detrimental to its interest. The Gandak Treaty was the most harmful. Article 9 of the treaty, which curtailed Nepal's water rights, 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 (the Gandak Irrigation Project) as set out in the schedule annexed hereto."

The monthly water requirements provided in the schedule were either very close to or exceeded the river flows barring a 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 its consent to revise the treaties.

The Gandak Treaty was revised on April 30, 1964. Article 9 of the revised treaty reads as: "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. 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 the Gandak basin. Similarly, the three Terai districts to the west of the Gandak river can be brought under year-round irrigation even without transvalley 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 river has been established in the revised treaty. The Article 4 (i) of the treaty related with the water rights reads as: " 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 (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."

Karnali and Other Transboundary Rivers

The Indus Treaty signed between India and Pakistan, and the Treaty of Ganges signed between Bangladesh and India 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. So far as the transboundary river treaties are concerned, the Kosi Treaty is the latest. Thus, it could serve as a precedent to Karnali and other transboundary rivers.

A Treaty is not Necessary

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

Our mega projects are too big for our exclusive use. The Indian government must agree to provide unhindered access to the Indian 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.

(Thapa writes on water resource issues)