Sharing the common river waters: Bangladesh remains wary of India's future dam construction


by Mohammad Mujibur Rahman


Bangladesh is not the only country to stake out its claim over waters of common rivers. There are many other countries, sharing the waters of common international rivers by amicably settling their water disputes. A few important water treaties concluded among such countries are:(i) The 1909 Boundary Water Treaty between Canada and the US to share waters of the boundary rivers and lakes. (ii) The water treaty concluded on 10 5-1911 between Austria and Czechoslovakia to share waters of Thaya river. (iii) The 1944 water treaty between US and Mexico relating to utilisation of the Colorado waters. (1) The 1944 water treaty which solved the Messbash river dispute between Austria and Bavaria. (v) The Lake Lanoux water dispute between France and Spain which was settled by Lake Lanoux Arbitral Tribunal in 1957. (vi) Indus Basin Water Treaty of 1960 between India and Pakistan to share waters of Indus river and its tributaries. (vii) The 1961 Colombia Water Treaty concluded between the US and Canada to share the Colombia water resources. (viii) The water treaty between the Arab states and Israel to share waters of Jordan river. (ix) The water treaty between Chile and Bolivia to share waters of Rio Lauca river. (x) The water treaty between India and Nepal to share waters of Koshi river.It may be recalled, in the Joint Indo Bangladesh Prime Ministerial Declaration of May 16, 1974 it was recognised that the Ganges dry season flow would have to be augmented and the Joint Rivers Commission (JRC) was asked to study the best means of such augmentation. But the mission failed because the Bangladesh team suggested one method of increasing the flow and India another. Bangladesh proposed that the dry season flow of the Ganges should be augmented by the construction of storage reservoirs on the Ganges Himalayan tributaries with the cooperation of a third party - Nepal. The monsoon waters of the tributaries could be stored in these reservoirs for release later in the dry season when water becomes scarce. The Indian teams opposed the concept. Apparently because in that event the control of the Ganges waters would mainly lie with Nepal and the Farakka Barrage would be redundant. The Indian proposal for augmenting the dry season flow of the Ganges consisted of a barrage across the river Brahmaputra at Gagighopa and a canal to take water from that river through the northern area of Bangladesh to Farakka. At a later stage India intended to construct three storage reservoirs by constructing three dams - one on the river Dihang, another on the Subansiri and the last one, the Tipainmukh Dam on the Barak, a tributary of the river Meghna.The Indian scheme was not acceptable to Bangladesh mainly because it would represent a threat to the sovereignty of Bangladesh. "The Farakka Barrage gave India nearly complete control over the dry season flow of one of Bangladesh's two major rivers, the Ganges. The proposed Brahmaputra Barrage could give India control over the other". (Sharing the Ganges by Ben Crow). This contention is further substantiated by the fact that India has planned to construct a dam in Tipaimukh area on the river Barak which would certainly not augment the flow of the Brahmaputra, or for that matter, of the Ganges, but would enable India to control the waters of the Meghna, the third major river of our country, and with it to complete the control of the entire river system of Bangladesh.It is essential to discuss international law and practice in this regard. The Harmon Doctrine of absolute territorial sovereignty overs international river, which originated in the US in 1895, has in fact never been followed and practised by any state, not even by the US. Thus while resolving the Rio Grondo dispute, the US did agree to provide Mexico with waters equivalent to that which Mexico had used before the diversion of waters from the Rio Grondo for irrigation purposes in the US. The 1933 Montevideo Declaration adopted by the Seventh International Conference of American States limits the right of utilisation of common waters by the obligation not to infringe on the legal right of utilisation of other states. Similar views are also expressed by the Inter American Bar Association, the Institute of International Law and the International Law Association. The 1977 UN water conference on Mar del Plata has also accepted this view of basin state's responsibility in dealing with common waters.Besides in a number of court cases the US Supreme Court {e.g. Kansas vs Colorado(1902), North Dakota vs Minnesota (1923), New Gersey vs New York (1931) etc.} the Swiss Federal Court {e.g . Aargan v Zurich (1878), Schiff Nausen vs Zurich (1897). etc} and the German court {Wathemberg and Prussia vs Baden (1927)} asserted that they invoked the principles of equitable apportionment and limited territorial sovereignty as established principles of international law. Similary the Italian court of cessation "asserted that international law recognises the right on the part of every riparian state to enjoy as a participant of a kind of partnership created by the river".India started constructing the Farakka barrage on or before January 30,1961, without giving prior notice and information to Pakistan about the project in total disregard to Article 7 of the 1933 Montevideo Declaration of American States which provides that, "The works which a state plans to perform in international waters shall be previously announced to the other riparian states." The 1957 Buenos Aires Resolution of Inter American Bar Association requires the consent of a co basin state when that state may suffer damage or injury as a result of a proposed work. Pakistan opposed the construction as it had a right to the waters of the Ganges which rested primarily on the Ganges-Kobadak Project. But India did not suspend the construction but followed from the very beginning the strategy of procrastination by holding a series of fruitless discussions and meetings with Pakistan during the period 1961 to 1970. Pakistan raised the dispute tat United Nations and informed the superpowers of the dispute. The USSR President Kosygin wrote a letter to Mrs Gandhi urging a settlement along the lines of the Indus Waters Treaty (i. e. through the mediation of the World Bank). But India openly rejected the suggestion.At this stage Pakistan proved to be a bit lackadaisical, for instead of being locked in fruitless discussions and meetings with India, it should have filed an appeal to the International Court of Justice or an International Tribunal (as was done by Spain for resolving the Lake Lanoux dispute which was eventually settled by the Lake Lanoux Arbitral Tribunal), or should have threatened India with dire consequences which it would have certainly done had India not concluded the Indus Water Treaty in 1960. But Pakistan did not do anything of this sort for East Pakistan.Now the Indians are doing exactly the same thing - constructing a dam on the river Barak (and also on all other 53 common rivers) flouting all national and international laws and practice. Experts say if the dam is constructed the Barak's two major tributaries, the Surma and the Kushiara will lose their flow and consequently one fourth area of our country from Sylhet to Barisal will turn into deserts. Moreover power generation in Ashuganj plant and production in Fertiliser Factory will be threatened. Thus whichever political party is in power in India, Indian's attitude towards Bangladesh always remains the same!It will not be out of place to state here that as early as 1960 India concluded a water treaty called Indus Basin Water Treaty with Pakistan to share the waters of the Indus and its tributaries on parmanent basis. But in spite of friendly relations with India, the latter is at present reportedly constructing dams/barrages across all the rivers flowing into Bangladesh from Indian side insidiously with a view to withdrawing waters unilaterally. Thus far from being friendly, India is in fact snubbing us in a manner worse than it followed with its arch-enemy Pakistan!The reason is not far to seek. Pakistan is a formidable power, and India cannot withdraw Indus waters more than have been allocated under the Indus Water Treaty of 1960. Therefore, there is no iota of doubt that had Bangladesh been as militarily strong as Pakistan, India would not have unilaterally withdrawn waters from our 54 common rivers.Bangladesh should lodge a strong protest to India, asking it to immediately stop constructing the dam in the Barak and conclude water treaties with us to share waters of all the 54 common rivers on just and equitable basis as per the existing international convention.* We should file and appeal to the International Court of Justice against the construction of the dam in river Barak and also in other 53 common rivers for unilateral withdrawal of waters by India disregarding international laws and practice in this regard. We should also demand compensation for the colossal loss to our economy and ecology as a result of such unilateral and indiscriminate action of India.* We should raise our water problems at the United Nations and also appraise the superpowers of this outrageous act of India, requesting them to prevail upon India as they did upon Indonesia to fulfil its promised obligations towards East Timor.* We should suspend water transit facilities to India and ask the Collectors of Customs (now redesignated as Commissioner of Customs) Khulna and Chittagong, not to issue customs clearance certificates to Indian vessels plying between West Bengal and Assam through our Raimongal Zakiganj river route until and unless the Indians stop construction of the dam on the Barak.* We must be militarily very strong. The decisions of the present government to purchase MiG-29, frigate etc are the steps in the right direction. We should not be niggardly in respect of military expenditure. Ironically, military expenditure is also conducive to economic prosperity. Had we been as militarily invincible as Pakistan, India would not have unilaterally withdrawn waters from our common rivers.We should also implore our friendly countries like China, USA, Japan etc for supplying us military hardware at cheap prices or even free of charge as the USA is doing to Israel. (The intention of the author here is not to see Bangladesh get entangled in armed hostilities with India but just to make the country's defence stronger.)The writer is a retired Collector of Customs. 

Views expressed in the article are the writer's own.


Source: The Independent, 8 Feb. 2000

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