Saturday, August 15, 2009

Does international law permit Tipaimukh Project?

Asif Nazrul

According to the website of the North Eastern Electric Power Corporation Limited (NEEPCO) which is in charge of the Tipaimukh Project, this project will be one of the largest Hydro Electric Project in Eastern India to date and will be located 500 meters downstream of the confluence of the Tuivai and Barak Rivers in the District of Churachanpur in the State of Manipur. All statutory clearances, except forest clearance have been obtained and the project is scheduled for commissioning in 87 months time from date of CCEA Clearance.

Situated in a highly seismic zone, this project was seriously objected by the Bangladeshi experts as documented in the JRC’s commentaries in 1985 on the updated Indian proposal for augmenting the flows of the Ganges submitted to Bangladesh in 1983. After that successive Bangladeshi governments have objected to the Tipaimukh project in view of its serious environmental and economic impact in the downstream. If India sticks to its original plan of constructing a Barrage at Fulertol or elsewhere to divert the water stored in the Tipaimukh the impact would be a reminiscent of the Farakka Debacle. It may be mentioned here that In the 36th meeting of the Joint River Commission held from 19 to 21 September, 2005, Bangladesh asked whether, instead of Phulertol, the barrage would be constructed somewhere else. India replied that the answer would be furnished at the next meeting (Source: Transcript of Commission Records, Paragraph: 11.2). Since then, India has not furnished the answer to this question to Bangladesh.

India’s unilateral move to construct the Tipaimukh Dam would be a violation of its obligation under the 996 Ganges Water Treaty between Bangladesh and India as well the customary laws of international law governing the utilization of international rivers and lakes. The 1996 thirty-year Ganges Water Sharing Treaty was signed by the heads of state of Bangladesh and India and thus, according to the 1969 Vienna Convention on The Law of Treaties, it has the full backing of international law. Both Bangladesh and India are bound to abide by this treaty until 2026.

The 1996 treaty is the relevant law for assessing the validity of the proposed construction of Tipaimukh or any other structure on shared rivers between Bangladesh and India. The treaty is relevant law because in addition to making provisions for water-sharing in the Ganges, the treaty also enshrines, in Article IX: “Guided by the principles of equity, fairness and no harm to either party both the Governments agree to conclude water sharing Treaties/ Agreements with regard to other common rivers”. According to the International Laws Commissions Commentaries on the Draft of 1997 Watercourse Convention, such pledges to apply the principle of equitable utilization and no-harm essentially presupposes obligations of conducting prior consultation and conclusion of agreement with co-basin state before undertaking any planned measures on a common river like the Barak. Accordingly, construction of the Tipaimukh Dam by India on the upstream of Barak which after entering into Bangladesh continues to flow as Kushiara and Surma will be illegal, unless it is preceded by prior consensus with Bangladesh.

As part of the Tipaimukh project, if India builds a barrage over the Barak River, the resulting disastrous consequences on Bangladesh will be a graver violation of the “no harm” principle acknowledged by both countries in the Ganges treaty.

Unilateral construction of the Tipaimukh project would also be inconsistent with the customary laws of international law as reflected in the 1997 UN watercourse convention. This Convention was drafted by the International Law Commission constituted under Article 13(1) of the United Nations Charter. The draft law produced by this Commission represents either existing or emerging rules of international law (ILC Statute, Article 15); several verdicts of the International Court of Justice have already expressed such a view (for example, the 1997 ICJ verdict regarding the River Danube dispute between Hungary and Slovakia).

According to the 1997 Convention, a project with the magnitude of impact upon the environment that Tipaimukh will have, cannot be constructed unilaterally by any basin state.. Given that this Convention is ratified by Bangladesh, it could oppose projects like Tipaimukh much more effectively in the international forums or bi-lateral discussions. The 1997 convention emphasizes comprehensive cooperation for equitable utilization of the watercourses, no-harm to any watercourse stares and adequate protection of international watercourses.

In 1992, the Economic Union for Europe devised an even more comprehensive and far-reaching convention regarding utilization and management of transboundary watercourses. By the terms of this convention, there is no scope, at all, to construct structures on joint rivers without conducting a comprehensive environmental impact assessment, providing full information to all the concerned basin- states and ensuring that there are no serious harmful effects on the ecosystem and the co-riparian states.

In the last two decades, various countries in Africa (e.g. 1995 Zambezi River Protocol, 1997 Lake Victoria Program), South East Asia (e.g. 1995 Mekong River Agreement), and South America (e.g. 2004 Program for the Pantanal and Upper Paraguay Program) have all emphasized basin-wide cooperation for ensuring sustainable utilization and management of international watercourses. Even Turkey, known as a country with a low regard for international watercourse law, is now consulting Iraq and Syria about equitable utilization of the Tigris and Euphrates Rivers, in line with the recommendation of the European Parliament on May 20, 2003.

Bangladesh and India are parties to a number of global environmental conventions, which are potentially applicable to the shared natural resources. Among them, Article 3 of Convention on Bio Diversity provides that “States have รข€¦. the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.”

The principle is of fundamental importance to international rivers and shared water systems like the Barak Basin as “damaging activities upstream frequently degrade the inland or coastal waters of downstream states”.

Provisions for preventing and mitigating harm related with the utilization of shared water systems are also found in a number of conventions including the 1972 Ramsar Convention, the 1992 Framework Convention on Climate change and the 1994 convention on Desertification.

If India decides to ignore the above international rules and norms for undertaking the Tipaimukh project that might prove disastrous for India itself. The sources of several large rivers, such as the Brahmaputra, are in China who is reportedly considering undertaking construction of big dams on some of those rivers. If India claims that there is no international law prohibiting Tipaimukh, then how would India oppose China’s projects which would cause serious damage to the environment and economy of India. Indian newspapers are already warning their government about this facet of the problem.

For us, the question is: are we ready to devise the necessary strategies with a holistic vision of the problem?

(Asif Nazrul is a professor of law at the University of Dhaka. The paper was presented at a recent international conference organised by the International Farakka Committe in Dhaka.)

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