Legal aspects of regional co-operation for basin optimisation

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    With reference to Koshi River

    Bangladesh has proposed to Nepal for co-operation in the Sapta Koahi High Dam project. Nepal seems delaying her response; some people attribute it to the India factor. However, the nature of Koshi River and law of international river course make it necessary for the co-basin countries to cooperate for such a development agenda in the region.

    The silver lining for Koshi Basin co-operation follows from the Indian 12th Five Year Plan (2012-17), Bangladeshi 6th FYP (2011-15), Nepal’s statements in SAARC Summits, and China’s place as observer in the SAARC. For example, the Indian Plan pinpoints the lack of water and electricity as critical bottlenecks for her economic growth, poverty alleviation and environmental management. It states that most of hydro-dams in Tibet and southern slope of Himalaya have performed much below expectations due to watershed degradation, silt dynamics, Himalayas’ warming up, etc. This Plan has suggested solutions such as ‘Himalayan water sanctuaries’ for the protection of water and revisit to the concept high dams.

    In the same vein, the Bangladeshi 6th Plan has emphasized India- Bangladesh power grid for 250 mega-watts to begin. It urges for co-operation with Nepal, India, and Bhutan for the same. Therefore, given the good offices of Prime Minister of India Dr. Man Mohan Singh and Prime Minister Sheikh Hasina, we hope that the strategy to manage the trans-boundary rivers and to form a regional water and power grids will get their blessings. If it works, the SAARC leaders in the 18th SAARC Summit due in Kathmandu may formally launch the SAARC electricity grid in the eastern part of South Asia.

    The Koshi co-basin countries namely China, Nepal, India and Bangladesh in the order of the river’s origin and flow need to realize that it is an international river, and can be fully developed at that level only. The Koshi originates in Tibet, traverses Nepal, and enters to India; their shares in the river’s watershed area are 33 per cent, 45 per cent and 22 per cent, respectively. Koshi joins Ganga at Kursella and at Farakka it bifurcates to form Bhagirathi River that reaches Kolkata, and Padma River that reaches Dhaka. So, the jurisprudence of such international river courses must be an essential guide to the stakeholders for developing the Koshi-Ganga-Padma river basin in a cooperative manner. The practice such as India-Bangladesh Farakka Barrage Treaty states that both countries will work jointly to augment the river flows in the upstream, and share such waters. Such provision in the Farakka Treaty opens ways for trans-border co-operation among Nepal-India-Bangladesh, Bhutan-India-Bangladesh, or China-India-Bangladesh to harness the rivers such as Koshi, Chukha, Tsangpo/ Brahmaputra to name a few.

    The legacy of India-Nepal Koshi Agreement (1954, 1966) is meant for the ‘Koshi Barrage at Hanuman Nagar’ and should be dealt separately. In any case, it has reserved Nepal’s every right to develop her water wealth on her own or in co-operation with other countries to generate benefits such as irrigation, navigation, electricity, fishery, etc. It is nice that India is emerging out of the mindset of the old Koshi Agreement of 1950s to adjust to the new theory in law of international rivers such as the Helsinki Rules 1966, Berlin Declaration 2004, etc. She realizes that the Harmon Doctrine of Absolute Right supports the upper riparian to develop here water resources.

    Likewise, the Doctrine of Downstream Benefit Sharing calls for the equitable and reasonable share of the benefits if a structure in upstream country generates its benefits in the downstream countries. India herself has applied the Harmon Absolute Right Doctrine in dealing with Pakistan and Bangladesh, and the Downstream waters sharing doctrine in the Inter-state Water Tribunals, and in the Mahakali River Treaty 1996 to some extent. In the light of such doctrines, India has recently lodged her concern with China that the Tsangpo River Hydropower Scheme Cascades should not adversely affect the Brahmaputra River’s flow regimes in the downstream. Conversely, any Sino-Indian co-operation in the upper riches of river to augment the river flows during lean season will not only be a win-win game for both of them but also has spin-off benefits for Nepal and Bangladesh.

    The nature of Koshi River, Law of International Water Course and the growth of regional institutions such as SAARC and Asian Development Bank’s Growth Quadrangle would constitute the legal basis for inter-country regional co-operation to effect such River’s optimum development in terms of the drinking water, irrigation, power, navigation, fishery and ecosystem services. Nepal located in the opportune site of Koshi River should initiate a planning and investment conference of at least four countries to harness the Koshi waters; it will also contribute to the theory of law of international rivers as ‘rivers will be used to transport water from Nepal to Bangladesh via India as transit in a co-operative development framework’. Dr. Thapa is former member, National Planning Commission

    Source : The Himalayan Times