 |
||
|
||
| OPNION |
|
||
|
||
| OPNION |
Nepal's Water Strategy By AB Thapa At present the
water resources development in Nepal is
in complete disarray. Despite very generous
foreign assistance for our country, the
development of our water resources is
facing great difficulties. Each of the
sectors such as the hydropower, irrigation,
inland navigation, flood control etc. falling under
the overall heading of the water resources
are riddled with complicated problems. It would
have been very harmful to the nation to
let it go like this for a long time.
An elaborate study providing in-depth analysis
of the current situation has already become
necessary in guiding our country in years
ahead in the field of water resources. In
this context the advice given by the
World Bank for our country on the water
resources development strategy study could carry
a great significance, provided of course it
is done prudently by involving reputed
foreign experts from abroad even if
it could be arranged only for very short
periods. Such short time engagement of renowned
experts would have been very useful
for laying the groundwork for the
proposed strategy study. Focus on Major Problems For quite some time
Nepal is gripped by the fervour to
prepare a report on Nepal's
water resources development strategy. Needless to
say that this study being carried out
under the loan assistance of the World
Bank is going to be very important
for Nepal. So it is very important to see
that the report does not contain anything that
would be detrimental to the interest of
our country. The water resources strategy study
report can not be treated simply
like an inventory of the past study
reports. A great deal of homework is
needed to prepare such report. For the
proposed strategy study, analysis of our own
information should be supplemented by information
from other countries particularly from our
neighbouring countries. The study should not
fail to identify correctly the major
problems faced by our country at present
and it should also be able to
prescribe the most appropriate solution to
those problems. In no case the report
should be prepared like a college
course book for teaching covering all
possible angles without focussing on the
specific problems that concern our country
the most. 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. There can be a great risk
that the water resources strategy study while
going into fine details of the
country's overall national plan might fail to
address some of the most critical water
resources related issues. Perhaps nobody wants
to know accurately with minute details how
many percentage population has access to safe
water, how many percentage of irrigable
land has round the year irrigation. They
could perhaps expect from the present
water resources strategy study a
convincing answer, even if it would be
just an approximation, to the
present water resources related problems that
would be having devastating consequences
for the future of our country as a
whole and not just the water resources
field alone. Draft Strategy Report At present the
water resources strategy study is
almost at its final stage. Very soon
the strategy report along with the on
going work plan study would
be brought to the notice of relevant institutions and
agencies. Government institutions and the World
Bank should ensure that the important
features of the strategy report are thoroughly
reviewed and extensively deliberated. It
appears the study report might require at
several places significant improvements and also
several amendments. Needless to say that
the opinion of the highly competent
experts in the relevant fields appears to
be indispensable, and such opinion should
be sought before the whole strategy study
report would be brought to its final
shape. Few observations on legal matters about
the study report itself are presented below. Nepal's Constitution
and Strategy The Clause 126 of
the Constitution has been hailed by all
quarters in Nepal as the most important
provision that is helping to safeguard
vital national interest of our country. In
the past, the misinterpretation of the
Clause 126 of our Constitution
had placed the Government in a most
embarrassing position. Our government was virtually
forced to annul the bilateral agreement
with the Government of India about the
Tanakpur barrage after the Supreme Court
granted injunction against the Government's
interpretation of the Clause 126 of
the Constitution. It is a well known
fact to everybody that the total benefit
accruable from each of the large storage
projects such as the Kosi, Karnali, West
Seti, Pancheshwor etc is far in excess of
the need of our country. Whenever we
embark on implementation of any of these
projects, the sharing of benefits automatically
takes place. It is completely a different
matter whether it is done deliberately or
it happens unintentionally. We already have
bitter past experience of Tanakpur barrage
agreement. Government mistake was not condoned
by the Supreme Court even though it was
not done deliberately. Now the government is
sometimes seen trying to find a way to
deliberately circumvent the Clause 126 of the
Constitution by planting a middleman
(private company) between the two governments. There
is a need to seek the opinion of
legal experts on this matter. It is very
important to find out whether such policy can
be considered acceptable or it could even
be a treason apart from being in breach
of the Clause 126 of the Constitution.
It is quite surprising that there is
not any mention in the strategy report
about the Clause 126 of the constitution that
serves as the mandatory guidelines for the
development of large water resources projects. Umbrella Treaty With
India Any person who is
even in a slightest degree aware of the
Nepal's water resources problems is
shocked by the following statements found
in the draft strategy reports which had
been circulated at different stages of
the study. "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 if
adopted as national policy could
harm the rightful interest of Nepal. They
fly in the face of existing bilateral
agreements between Nepal and India. Needless
to say that above recommendations of the
strategy report would be detrimental to
our interest but what surprises anyone
the most is the fact they are
not from the documents of the Indian
Government, on the contrary they are from
our own documents. The above statements would
have been very fit for a similar type
of 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 favour of Nepal and
they are briefly described below). The Kosi &
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 &
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 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. This treaty has reestablished
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 transvalley conveyance system.
Thus a new agreement with India might not be required in
future. 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." 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 the Kosi Treaty 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 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% 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. |
Send your feedback to the
editor: spotligh@mos.com.np |
