Thursday, January 4, 2018

Revision of Transboundary River Treaties

Transboundary river means river that transcends boundaries. Rivers crossing boundaries of multiple users, countries and regions are transboundary rivers. Even lakes can be transboundary if shared by a number of countries (like Lake Superior in North America). In Nepal’s context Koshi, Gandaki and Karnali are major transboundary rivers, while Mahakali is both border River and transboundary river (Mechi is minor one). These are transboundary rivers for Nepal, Bangladesh, China and India. For Nepal China is upper riparian and Bangladesh and India lower riparian.

Principles governing Transboundary Rivers
There are two principles that govern transboundary rivers. First principle is absolute territorial sovereignty, also known as Harmon Doctrine, which allows unlimited use of water of a transboundary river located within national borders regardless of any consequence on lower riparian. Both China and India use this principle. China has built and is building dams on Brahmaputra River. Similarly, India has built Farakka dam on Ganga River depriving Bangladesh.

Absolute territorial integrity is another principle, which prohibits any development in an upstream state that would interfere with the natural flow of the river. India wishes that both Nepal and China adhere to this principle, although she herself uses first principle. To an extent this principle was adhered to in Indus Treaty. Although rivers like Beas, Ravi, Sutlej, Indus, Chenab and Jhelum originate in India, under Indus treaty, Beas, Ravi and Sutlej (eastern rivers) are given to India, while control over the three "western" rivers Indus, Chenab and Jhelum lie in Pakistan.

Overarching framework treaty
Recently, an Indian NGO that focuses on environmental law, unveiled draft of an overarching framework treaty for watercourses shared between Nepal and India in an interaction program in Nepal. Surprisingly, although the draft is expected to be “overarching” and lays down “framework” for treaty on “shared watercourses” it aims to encompass treaties on Koshi and Gandaki rivers only. It is mysterious why Mahakali River was left out, if this draft is expected to cover rivers for which Nepal and India have already signed treaties. In order for these two countries to sign an overarching treaty, Karnali River too will have to be included, for which no treaty has been signed so far.

Moreover, while referring to shared watercourses between Nepal and India, it seems to have been forgotten that the watercourses that are shared between these two neighbors, originate in China, while Bangladesh is lower riparian. Therefore, if one is to refer to these watercourses as shared, then these are shared between Nepal, Bangladesh, China and India; this fact seems to have been lost sight of in putting together the said draft.

History of treaties
Government of Nepal has signed treaties with India on Koshi, Gandaki and Mahakali rivers (Tanakpur treaty, signed by government of GP Koirala, youngest Koirala brother, although called an understanding, precursor to Mahakali treaty, was repealed by Supreme Court of Nepal). Signing of each of these treaties resulted in uproar in Nepal as these treaties were deemed detrimental to Nepal’s national interest by a large section of populace. These treaties have also become popular “whipping boys” for disgruntled elements of the society. For example, demand to repeal these treaties found pride of place in 40-point demand of CPN Maoist that culminated in armed insurgency lasting a decade resulting in death of 18,000 people and forced disappearance of many. However, it is surprising that Maoist did not attempt to repeal or even rectify these treaties, when they ruled the country; a case of failing to practice what they preached.

In this backdrop, this paper attempts a brief and cursory analysis and review (detailed one not possible in view of space constraint) of each of these 3 treaties and endeavors to draw a conclusion regarding revision.

Koshi Treaty
Signed by MP Koirala (eldest Koirala brother) government on April 25, 1954, the main focus of this treaty was to construct physical structures including barrage, head-works, etc. 3 miles upstream of Hanuman Nagar (Nepal’s town near Indian border) to control flood and to generate water for irrigation, both in India. The treaty, comprising 18 Articles, deals with matters related to construction of these physical structures, except for Article 4(i) that dwells on “sharing of water”.

There is no doubt that extant physical structures, that result in inundation of Nepal’s territory and involuntary displacement of local inhabitants (negative externalities) is detrimental to Nepal, while positive externalities like flood control and irrigation is enjoyed by India.

A close perusal of original Article 4(i) is called for from the perspective of Nepal’s right over Koshi water. India “will have right to regulate all the supplies in the Koshi River” could have been construed to mean that Nepal’s right to Koshi water is subservient to India’s right. India prohibiting “Dharanites” from extracting water from Koshi River at Chatara for drinking water supplies is manifestation of that.

However, amendment of this Article in December 1966 by government under absolute monarchy of king Mahendra, got India to concede that India will have right over “balance” only after Nepal withdrawing water for “irrigation and for any other purpose in Nepal.” Moreover, as Nepal can withdraw water “as may be required from time to time” as specified in this Article, India cannot assert right under the principle of “existing prior consumptive use”. This clause allows Nepal to increase withdrawal of water in accordance to her requirement and India cannot claim prior use.

Therefore, this sentence has established absolute territorial sovereignty of Nepal over Koshi River.

Initially, there was no mention of term in this treaty. But the term of 199 years was inserted by the amendment in Article 16(i). Some intellectuals have deemed it to be against Nepal’s interest. But it also means that Nepal’s absolute territorial sovereignty over Koshi River has been established for 199 years. As modern day India and its rulers are unlikely to allow Nepal to use Harmon Doctrine in any such treaty, this provision is in Nepal’s interest.

Those clamoring for abrogation of this treaty are the type that throw baby with the bathwater. Physical structure of the barrage is obviously not in Nepal’s interest, but, thankfully, it has limited life (said to be 50 years). However, India accepting Nepal’s absolute territorial sovereignty over Koshi River will survive for more than a century.

Gandak Treaty
BP Koirala (younger brother of MP Koirala) government signed Gandak Treaty on December 4, 1959, to allow India to build Gandak barrage 1,000 ft. below Tribeni canal head regulator. Of 13 articles of this treaty 12 articles deal with construction of the barrage etc. while Article 9 deals with Nepal’s water right.

Like Koshi barrage, physical structures under this treaty are fully detrimental to Nepal as it results in inundation of Nepal’s territory and involuntary displacement of local inhabitants (negative externalities) while positive externalities like flood control and irrigation is monopolized by India. However, Article 9 of the treaty, amended by king Mahendra’s government in April 1964, is in Nepal’s interest to a limited extent because it restricts “trans-valley uses” of water in the months of February to April. Accordingly, Nepal can exercise Harmon Doctrine fully on Gandaki River, including transfer from Gandaki basin to other basins except in 3 dry months.

India also is not entitled to use principle of “existing prior consumptive use” on this river too as Article 9 allows Nepal to withdraw water “as may be required by them from time to time in the valley.” This is another silver lining of this treaty full of dark cloud.

As no term of the treaty is mentioned in the treaty, it seems to stay in force for perpetuity and opponents of this treaty point to it and demand its abrogation. Such people fail to notice the silver lining in India acceding Nepal’s absolute territorial sovereignty over Gandaki River in perpetuity. On the one hand, the restriction on transfer of water to other basins makes it relatively bad treaty compared to Koshi treaty, but from the perspective of applicability of Harmon Doctrine in perpetuity, this is better treaty relatively speaking due to amendment in 1964, as it has no fixed term.

Mahakali Treaty
Mahakali River has been deemed border river by Mahakali Treaty and some contest it on the ground that Nepal had ceded only territory west of Mahakali to India under Sugauly Treaty, signed on December 2, 1815 and this river was not made a border river by this treaty leaving it under exclusive domain of Nepal. This facet, unfortunately, is now water under the bridge of Mahakali River after this treaty was signed on February 12, 1966 as Article 3 has recognized it as a “boundary river on major stretches between two countries”

Article 3 of this treaty has established “equal entitlement in the utilization of waters of the Mahakali River”. This provision is certainly positive, as it has accepted the principle of equality, not equity. However, unfortunately, this principle was qualified by a proviso clause: “without prejudice to then respective existing consumptive uses”, which effectively means Nepal stands to receive 3.5% with India hogging 96.5% (this treaty legitimized use of 93% by India under “existing consumptive use” principle). A rectification of this flaw was attempted by Nepal’s parliament by passing a 4-point stricture motion as follows:

• Price of energy to be determined on the basis of principle of avoided cost;
• Formation of Mahakali River Commission;
• Equal sharing of water after Pancheshor project; and
• Status of Mahakali River to be ascertained.

Until this treaty is amended to incorporate principles enshrined in the stricture motion, it will continue to be detrimental to Nepal.

Revision of treaties
First and foremost, Mahakali Treaty needs to be revised to incorporate principles enshrined in the stricture motion. After that signing of an overarching treaty can be considered. However, in doing so, provisions that establish Nepal’s absolute territorial sovereignty like on Koshi River should not be tampered with. If possible, restriction on inter basin transfer of Gandaki River should be removed. Such an overarching treaty should also include Karnali River, establishing absolute territorial sovereignty of Nepal on it too.

If a revision of these treaties is undertaken, right to inland navigation of Nepal needs to be enshrined such that Nepal can become water linked country from landlocked to allow water transportation from Nepal via India, Bangladesh to open sea/ocean.

Most believe that treaties have to be signed to share transboundary rivers. Under extant hydrological cycle of Nepal, sharing of rivers amounts to sharing flood during wet seasons and sharing drought in remaining 8 months of dry season. Ideally a transboundary river treaty should be geared to share costs (negative externalities) and benefits (positive externalities) in harnessing them.
Ratna Sansar Shrestha, FCA

Published in People’s Review on January 4, 2018

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