Dr Prakash Chandra Lohani
Dhumbarahi, Kathmandu, Nepal
Dear Dr Lohani
I certainly agree with you that it was indeed established in the Mahakali Treaty that the benefits “are to be shared equally and not on the basis of equitable principle that is normally applied in the case of a border river.” From this perspective it is indeed difficult to brand the treaty “detrimental to Nepal's interest.”
However, there are a couple of reasons that make this treaty highly detrimental to Nepal’s interest.
1. You must be aware that after being defeated in the war with British Empire in India, Nepal was forced to sign the ignominious Sugauli Treaty in 1816 AD which stipulated that “The Rajah of Nipal renounces ..all claims to or connexion with the countries lying to the west of the River Kali.” This clearly establishes that “Kali” (now being referred to as Mahakali) River is not a common/border river between Nepal and India. Nepal merely relinquished right over land lying west of this river and this river belongs exclusively to Nepal pursuant to this treaty.
But Mahakali river got downgraded to a shared river as it was acknowledged in the captioned treaty that “Mahakali River is a boundary river on major stretches between the two countries” in the preamble itself. In other words, Nepal lost its sovereignty over this river and ended up sharing it with India. This is definitely detrimental to Nepal’s interest.
2. Even after accepting the principle of “sharing equal benefits” from this river, the Treaty goes on to apportion the water between Nepal and India in specific volume of water for dry season as well as wet season; 3.5% to Nepal under Article 1 para # 1 of the treaty and rest, 96.5%, for India. Prior to the execution of this Treaty India was “using” more water than it was entitled to, illegitimately, even if this river was to be accepted as a river with equal right of the two countries. With the signing of this treaty India succeeded in legitimizing its use of water in excess of 50%.
3. The exchange of letter between two prime ministers made the treaty more detrimental to Nepal. In Clause 3(b) of this letter Nepal further conceded to the preclusion to the “claim, in any form, by either party on the unutilized portion of the shares of the water of the Mahakali River of that party without affecting the provision of the withdrawal of the respective shares of the water of Mahakali River by each party under this treaty.” Although, the formulation of the sentence leads one to deduce that the preclusion is applicable to both the parties, this clause is basically intended for Nepal for two reasons. One, Nepal doesn’t have necessary resource to use its share of water. Two, any water left unused flows in the normal course to India. Simply put, if Nepal doesn’t use her “share” of 3.5% water then India is free to use such water and Nepal isn’t entitled to any recompense for it. This goes even against the principle and precedent established by Columbia treaty and the agreement between South Africa and Lesotho.
4. The detrimental impact will become more pronounced and further compounded after the implementation of Pancheswar project, if it is ever implemented. This project is a reservoir project and will inundate/submerge over 10,000 ha of land on Nepal side. In this manner Nepal will be sacrificing its valuable land to add temporal value to the water of Mahakali – which would have flooded in the rainy season – but the water she will not be able to use will have to be gifted free of cost to India. Lesotho charges $ 25 million annually (in 1991 price level) for 18 m3/s water availed to South Africa. Nepal will be sacrificing ten times of the volume of this water. An engineering solution of this problem will be lowering the dam height commensurate to the water requirement of Nepal in order to reduce inundation/submergence of land in Nepal. But this will be hardly possible as India would want to have the dam at optimum level to be able to irrigate vast stretch of land in UP and some in Uttrakhand.
5. Sankalpa prastav (motion of strictures) passed by the Parliament of Nepal while ratifying the treaty has further complicated the problem. The Article 3 of the treaty stipulates that “Parties agree that they have equal entitlement in the utilization of the waters of the Mahakali River without prejudice to their respective existing consumptive uses (emphasis mine) of the waters of the Mahakali River.” As discussed in point # 2 above, on the basis of this clause the apportionment of 3.5% to Nepal and rest to India was done in the treaty itself. But the motion passed by the parliament specifically negates this article of the treaty and endeavors to reinstate Nepal’s right over 50% of the water notwithstanding the principle of “existing consumptive use” used a basis of apportionment of the water. It must be noted that India is yet to accept this change and is unlikely to do so.
As today is Vijaya Dashami, I take this opportunity to wish you happy Vijaya Dashami, May Goddess Durga give people of Nepal the ability to discern what is beneficial to Nepal and what is detrimental to her.
PS: Prior to signing of this treaty India had been using more water from Mahakali River than it was entitled to (even if the principle of it being a border river is to be accepted) illegitimately. With India succeeding in “persuading” Nepali hydrocracy (politicos, policy makers, planners, bureaucrats, intelligentsia, etc.) to sign on the dotted lines of this treaty and the use of principle of “existing prior consumption” in the treaty, she succeeded in legitimizing the use of excess water by her from this river. Unfortunately for Nepal, Nepal’s hydrocracy failed to realize all these.
With best regards,
Ratna Sansar Shrestha,
Senior Water Resource Analyst
From: Prakash Lohani [mailto:email@example.com]
Sent: Sunday, September 21, 2008 23:22
Subject: RE: Flood Control and Irrigation: First and Second Priority of India
Dear Shrestha Jee
I read your article on the utilization of water resources of Nepal in cooperation with India. You make some very important and valid points that policy makers in Nepal should consider if they are really interested in working for the benefit of the Nepali people. However there is one point on which I would like your reaction. In the Mahakali treaty the estimation of benefits of the project includes electricity, flood control and new irrigation potential. The project states very clearly that the total benefits (electricity + irrigation+ flood control benefits) are to be shared equally and not on the basis of equitable principle that is normally applied in the case of a border river. In what way is this provision detrimental to Nepal's interest? I would like to know your opinion.
Please accept my best wishes for a happy Dasai
Prakash Chandra Lohani