There is scope to stop India from building the dam: DR. ASIF NAZRUL

Dr Asif Nazrul, professor of law at Dhaka University who did his PhD in international Watercourse Law from SOAS, University of London, explains to Konka Karim why it is important to register a protest over the Tipaimukh Dam at the international level.

We hear a lot of conflicting reports about what effects the Tipaimukh Dam will have on Bangladesh. Some say that the Surma, Kushiara and eventually the Meghna rivers will dry up turning northeastern Bangladesh into a desert. Others say, that hydroelectric power generation will actually benefit Bangladesh. How do you see the effects?

As reflected in various reports of the International Commission on Dam, whenever there is a huge intervention like the Tipaimukh project with the natural flow of a river, it will have disastrous impacts, particularly in the downstream areas. No matter what some people are saying, like we will get water during the dry season or the flood would be mitigated, the fact is, biodiversity in the riverine areas in Bangladesh is so sensitive that it would surely be adversely affected by any mega project in a shared river. Furthermore, since the project would be located in a highly seismic zone, the risk is much more grave.

Tipaimukh, no doubt, might have certain benefits but the injuries easily outweigh the benefits. But in order to be precise in our assessment as to the benefits and risks of the project we need to have all the data and information concerning the project. But India is yet to provide us with the project papers and other relevant information.

So, we have every reason to be suspicious. Take the example of Farakka. In 1976, while speaking at the UN general assembly, the Indian representative clearly stated that Farakka is not going to make Bangladesh suffer and whatever minor effect it will have could be remedied. Well, we all saw what economic and environmental impact the Farakka had on us.

The Indian government has told the Bangladesh government that the Tipaimukh dam will only be used for hydroelectric power generation and yet on their website they indicate to the Fulertala Barrage which will be used to retain diverted water.

Exactly. During the first proposal for the Tipaimukh dam in 1978 as well as the second one in 1983, they mention the Fulertala Barrage. In the NEEPCO website, the site for the Fulertala barrage is clearly indicated.

During the last meeting of the Joint River Commission in 2005, the Bangladesh delegation categorically asked whether the Indian government would construct any barrage at Fulertol to divert the water stored at Tipaimukh for irrigation purposes. They answered no. When they were asked whether they would construct the barrage at any other place in Manipur, they said they would answer it in the next meeting. That answer never came.

The Indians have been saying that there will be no barrage but their written literature like the NEEPCO website suggests otherwise. We need a written assurance from India that they are not going to construct any barrage at Fulertol or elsewhere. In fact Article IX of the 1996 water-sharing treaty clearly stipulates that Bangladesh and India will enter into agreement in relation to the utilisation of the waters of the shared rivers by complying with the principle of equity, fairness and no-harm. What they have been doing unilaterally with Tipaimukh is already a violation of the treaty.

If they can assure us verbally, why can’t they have a written agreement with us which would clearly state all the details on how we will benefit from the dam, how much water would be released in every day of a year and what compensation we will receive in the case of an accident or dam failure!

We signed a water-sharing treaty over Farakka years after the dam had been built. Do you think the Indian government intends to do the same?

That was 1969, this is 2009. At that time there was no water sharing agreement with India, today there is i.e. the 1996 Ganges Water Treaty. Our water sharing treaty expires in 2026 and until then, India has a treaty obligation to share all information with us. What India is doing now is a clear violation of Article 9 of the Ganges Water Treaty.

The construction of Tipaimukh Dam is also a clear violation of international customary law as it has been embodied in the UN Watercourses Convention of 1997. This is where the recent controversy regarding the remarks of Indian high commissioner Pinak Ranjan Chakrabarty comes in. Pinak pointed that since the convention did not enter into force, it was not applicable. However, we have to understand that this treaty is a product of International Law Commission(ILC). The international court of justice in a number of cases valued the convention ILC had produced as evidence of embodiment of international customary law.


Is there any scope of taking the Tipaimukh issue to the international court?


Of course there is. Bangladesh and India are party to a number of international environmental agreements and raising the issue on these podiums will create an outcry.

Take for example the 1992 Biodiversity Convention. Article 5 of this convention stipulates that no country will undertake any measure which will seriously affect the biodiversity of another country. If the natural flow of water of Surma and Kushiara is affected, it will have immense effect on the animal and plant life of the region. To give a simple example, if you do not provide water to a human being for three days and then suddenly give him 10 glasses on the fourth day, imagine the impact of it? Plants and animals are generally more sensitive than humans not to mention micro organisms who can be affected in an hour. All those issues can be raised in the conference of the parties to the biodiversity convention and also in various committees established by the convention.

There is the Kyoto Protocol. Studies have proven that storing a huge amount of water like the proposed Tipaimukh Dam would contribute to global warming. Then there is the 1972 World Heritage Convention according to which, Sundarbans is a world heritage. That the increasing salinity in the water will affect a world heritage site is contradictory to the convention. In addition, there is the UN General Assembly through which you can capture the international headlines. But before internationalising the issue, Bangladesh must try its best to resolve the matter bilaterally.


Is there any real scope of holding them back from building the Tipaimukh?

Of course there is. Times have changed. You see, rivers such as Borak and Brahmaputra have their origin in China. If China one day wants to build dams on those rivers, which they obviously eventually will to generate power, on what moral grounds will India stop them? They will have no logical stand. We can play the environment card and we can play the China card. But most importantly, even if we can’t stop them we have to ensure that we have registered our protests very strongly, because they will remain as references in the future. This is exactly what India does not want us to do.

How would you assess the new Bangladesh government’s reaction to the Tipaimukh issue?

So far, the reaction has not been inspiring. Some of the ministers and parliamentarians appear to be suffering from India-phobia. There is also a serious lack of expertise in the government rank. The government seems to have totally failed to understand their strengths – the legal position, the global scenario and the fact that India cannot just unilaterally construct the dam. Because if they do it unilaterally, that would validate China’s future unilateral projects on the same rivers. The government has to properly assess the comprehensive picture, strengthen forums like JRC by appointing experts as its honorary members, beef up its negotiating skill by consulting all the concerned experts and provide people with genuine information so that people do not get confused and suspicious of the government’s performance on this issue. These are doable. You just need a change in the mind-set and a bit more smartness.

source: The New Age Xtra