CONFLICT AND COOPERATION ON SOUTH ASIA'S INTERNATIONAL RIVERS A Legal Perspective by Salman M. A. Salman and Kishor Uprety

(Kluwer Law International, November 2002  & World Bank January 2003)

BOOK 
River Cooperation

A book analyzes the potentials of conflicts and cooperation in the harnessing of rivers of South Asia

By PRAVAKAR ADHIKARI

Fresh water is increasingly in short supply in many parts of the world, largely because of population growth and needs of urbanization and industrialization. The resulting competition for the scarce water gives rise to complex international problems as countries sharing the waters of international drainage basins seek to satisfy their pressing needs. These problems are well illustrated in a new book by Salman M.A. Salman and Kishor Uprety titled Conflict and Cooperation on South Asia's International Rivers. A Legal Perspectiva.

The book, on the history and the legal regime of the water resources of the South Asian Sub-continent, published initially in hard-cover, by Kluwer Law International under the International and National Water Law and Policy Series, edited by Dr. Patricia Wouters & Dr. Sergei Vinogradov, both professors at the University of Dundee, Scotland, and later published in soft cover, by the World Bank, is a welcome addition to the available literature on the subject as well as a useful tool for lawyers and academics alike interested with the legal aspects of the hydro-politics and diplomacy in the South Asian region.

The concerned states of the region are Bangladesh, Bhutan, India, Nepal, and Pakistan, which are home to some 20 major rivers, three of them being of particular international legal importance, namely the Indus, the Ganges, and the Brahmaputra. This new book is a reminder of the importance of international cooperation on Trans-boundary watercourses. Distinct from most other books on international waters, this work focuses on regional water law issues, and as correctly stated by the authors, of a region that has had to deal with some of the most difficult disputes over international rivers, while at the same time, has managed to devise some of the most successful and interesting models of cooperation.

Using particular examples of inter-country cooperation on Trans-boundary rivers in the region (India-Pakistan, India-Nepal, and, India-Bangladesh), the authors succeed in demonstrating that "in the international arena, water has shown to be a good catalyst for cooperation between nations."

The authors examine the history of the dispute between India and Pakistan concerning the waters of the Indus River. This dispute, having brought the parties to the brink of war at the outset, was eventually resolved by the Indus Waters Treaty of 1960, which was reached only through the intervention of the World Bank and the financial aid of other states. It is noteworthy that the legal regime established under the Indus Treaty has managed to survive through the years of tension and even military conflicts between India and Pakistan and still represents one of the most successful models for resolving seemingly intractable Trans-boundary water disputes.

The relations of India and Nepal then follow. Since about 45 percent of the waters of the Ganges River, the major river in India, have their origins in China and Nepal, this river is of major importance to both of these countries. While India and Nepal have entered into several agreements, the results have not always been happy. Nepal, a small, land-locked, and poor upstream state, finds the development of its abundant water resources, for economic if no other reasons, dependent on agreement with its overwhelmingly larger neighbor downstream. Even when agreement is reached, as in the Mahakali Treaty of 1996, implementation is hampered by differences of interpretation about its terms.

The relations of India and Bangladesh concerning the Ganges River discussed in the Part that follows emphasize the difficulties in discerning the general principles of international law applicable to the waters of international drainage basins and applying them to the complex facts of a particular case. While India is the downstream state in relation to Nepal, it is the upstream state in relation to Bangladesh, and is therefore in a position to affect the flow of the Ganges and the Brahmaputra into Bangladesh. In fact, India has diverted water from the Ganges by constructing the barrage at Farakka for the benefit of the port at Calcutta, thus seriously affecting Bangladesh by depriving it of desperately needed water during the dry season. Bangladesh strongly protested this diversion and questioned its legality. After making several temporary agreements providing for allocations of the waters of the river, India and Bangladesh entered into the Ganges Treaty in 1996, allocating the waters for the next 30 years. The details about the different legal instruments between the two countries provided in the book are extremely useful, particularly for those intending to understand the evolutionary aspect of the problem faced by the two countries. 

The authors, both senior lawyers in the Legal Department of the World Bank, have long been involved in matters relating to international water in different countries and legal systems. In that capacity, they have had the opportunity to gain special knowledge of the legal, political, and practical aspects of these problems, and have thus taken a special interest in the utilization of the waters of these rivers. Their detailed historical account of the political and legal relations of India with Pakistan, Nepal, and Bangladesh provides even one who already has a good knowledge of the subject, with a deeper understanding and appreciation of the problems and difficulties that these states have faced and still face.

Indeed, many regions and countries depend entirely on the waters of international river basins. In this situation, cooperative efforts in managing Trans-boundary water resources are a necessary prerequisite in achieving effective water governance at all levels — from international to local. Unilateral development of shared water resources — i.e. undertaking measures without consulting co-watercourse neighbors, may only cause tensions or lead to international controversies, which has been amply demonstrated in various parts of the world. Developing a substantive framework for reasonable and equitable use of shared Trans-boundary waters, together with a range of cooperative mechanisms for achieving the sustainable development and protection of the resource is one of the key challenges for the future. International law can play a significant role in facilitating that. Perhaps in cognizance of that, interestingly, the in-depth analysis of specific regional water-related issues and arrangements does not prevent the authors from addressing some broader conceptual problems of international water law, including underlining the important role of the UN Watercourses Convention as a mechanism promoting river basin cooperation. Without doubt, due to its comprehensive approach, the book, is a must read for those interested in international water law issues.

(Adhikari is Head of Department, International Law, Nepal Law Campus, Tribhuvan University)