Bangladesh-India Transboundary Unfair Water Sharing An Appraisal -By Mohammad Kepayet Ullah

“The water scarcity has brought much misery and hardship to the people of the affected south- western parts of Bangladesh that has resulted disruption of fishing and navigation, brought unwanted salt deposits into rich farming soil, adversely affected agricultural and industrial production, changed the hydraulic character of the rivers and brought about changes in the ecology of the Delta. Due to the Ganges diversion the minimum discharge of the river Padma at the point of Hardinge Bridge in Bangladesh fell far below. The groundwater level in the highly affected area went down particularly in the district of Rajshahi, Kustia, Khulna and Jessore. The south-west region had been facing the critical problem of salinity intrusion from the Bay of Bengal because of the drastic reduction of fresh water flows in the Gorai river which is the major distributary of the Ganges in this part of the country” – Rakesh Tiwary, 2006
Recently India has faced a massive flood and heavy rain fall in their Uttar Pradesh, Bihar, Jharkhand region. Then it released Farakka dam for water removal. As a consequence, several regions of downstream Bangladesh including Kushtia and Rajshahi division have been engulfed by artificial flood.  Not just this year, it does the same thing every year – especially, 1998, 2003, and 2013 are notable for artificial floods.  The prediction made by Maulana Abdul Hamid Khan Bhashani many years ago comes into true that he said, Farakka dam will bring even more devastating consequences than the Hiroshima-Nagasai.
It is said, in this century, people are fighting for oil. But the battle for the next century will be about water rights. Water is an internationally shared resource that is vital for economic growth, food production, and human survival, and as such the water security crisis cannot be solved by technical solutions only. Water crosses national borders in the form of rivers, lakes, and groundwater, and conflict often results when countries try to allocate water. Approximately 260 rivers flow from one country to another and more than forty percent of the world’s population is dependent upon the fresh water from these international rivers, two-thirds of which live in developing countries
Article 2 (b) of the Convention on the Law of the Non-navigational Uses of International Watercourses 1997 defines “International watercourse” to mean a watercourse, parts of which are situated in different States.  Article 1 (1) of the Helsinki Agreement defines “Transboundary waters” to mean any surface or ground waters which mark, cross or are located on boundaries between two or more States; wherever transboundary waters flow directly into the sea, these transboundary waters end at a straight line across their respective mouths between points on the low-water line of their banks. Article 1 (2) of the of the Helsinki Agreement also defines “Transboundary impact” to mean any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors. The Watercourse Convention 1997 Article 7.1 states: “Watercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.”  Article 7.2 says: “Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of Articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.”
India, China and Myanmar have been the origin of large number of international rivers that fall into the Bay of Bengal through Bangladesh. Therefore, Bangladesh has the greatest number of these rivers, almost all of which cross national boundaries. A total of 57 rivers and tributaries flow into Bangladesh from India and Myanmar. Given its geographical position, India has a strategic advantage over Bangladesh. Ninety-four per cent of Bangladesh’s surface water supply originates outside its borders. Bangladesh is extremely vulnerable to upstream decisions, particularly Chinese and Indian dam construction and operation. As Bangladesh is a lower riparian country that heavily relies on the flow of the Ganges to meet its food and water demands; any change in the flow of the Ganges significantly affects it. Given the river’s long route throughout several countries, any source of tension between India and Bangladesh threatens food and water security for millions of people who rely on the Ganges and its tributaries. Regardless of that, the Farakka Barrage was created by India in 1975 to divert water from the Ganges River to the Bhagirathi-Hoogly river system. The barrage diverts water from one of the most populated basins in the world, the Ganges-Brahmaputra-Meghna basin.
Studies have been conducted on water supply before and after the construction of Farakka. It has been found that Bangladesh’s water supply was much greater before the barrage was built. In some studies, evidence shows that the supply worsened after the Ganges Water Treaty (GWT) was signed and ratified. Until 1975, when the Farakka Barrage was created, water supply into Bangladesh was adequate. After the creation of the barrage, Bangladesh started to experience reduced water flow.
Any change in the flow of the Ganges through Farakka has the ability to significantly alter Bangladeshi agriculture, fisheries and livelihoods. The threats to food and water security that Bangladesh already experiences are made worse by Bangladesh’s position as a down-stream riparian and have been accelerated with the creation of the Farakka Barrage.
The diversion of the Ganges has increased river salinity in Bangladesh. As rice paddies are sensitive to salinity increases, this poses a threat to Bangladeshi food security. Decreased river flow effects the Bangladeshi environment, particularly the Sundarbans mangrove forest.
In November 1977, Bangladesh and India proposed a five-year agreement on water sharing. However, the basic issue remained unaddressed, leading to its lapse in 1982. Finally, the Indian Prime Minister H. D. Deve Gowda and his Bangladeshi counterpart Sheikh Hasina signed a comprehensive bilateral treaty in 1996. This treaty established a thirty-year water sharing arrangement with guaranteed minimum quantities of water supply for Bangladesh, whose rights as a lower riparian country was recognized. However, despite the 1996 agreement, India has several times unilateral withdrawal of water. Since that time, however, increased upstream draws have significantly lowered the discharges and statistical analysis indicates that neither Bangladesh nor India will be able to withdraw their respective allocations. The very first season following signing of the treaty, in April 1997, India and Bangladesh were involved in their first dispute over cross-boundary flow: water passing through the Farakka dam dropped below the minimum provided in the treaty, prompting Bangladesh to request a review of the state of the watershed. A study that simulated water availability under the 1977 and 1996 treaties concluded that the newer treaty is unlikely to make any substantial contribution to alleviate water scarcity during the dry season in southwestern Bangladesh. Besides the issue over low flows to Bangladesh during the dry season has been added that of India’s Mega River Linking Project, a plan to link dozens of rivers throughout India by way of aqueducts and pumping stations to transport water from the Ganges River to parts of southern and eastern India that are prone to water scarcity. This project would exacerbate the issue of flows to Bangladesh and has the country very worried. India , acting uni-laterally has up to this point not agreed to speak with Bangladesh regarding the topic.
This is one of the prime reasons behind the Bangladesh-India water sharing disputes. Unilateral water diversion or withdrawal of water from trans- boundary or international rivers has been a long-standing policy of India. It has also constructed ahuge Farakka barrage in order to divert a portion of the dry season flow to increase the navigability of Calcutta port in 1975.
By commissioning the Farakka Barrage in 1975,India seemed to have violated international law intended to deal with water-sharing disputes. The Farakka barrage was grossly unfair in and of itself. The diversion of Farakka waters caused enormous losses in food and fisheries production in Bangladesh over two decades. According to Ashok Swain of Sweden’s Uppsala University, “Farrakka changed the river’s hydrology, disrupting fishing and navigation, brought unwanted salt deposits into rich farming soil… and caused an annual loss estimated at 2 -2.5%of GDP.
On sharing of “common rivers” Article 9 of the 1996 Ganges Water Treaty obliges India to abide by the “water sharing agreements” with Bangladesh on principles of equity, fairness and no harm to either party”. But the real picture is different. Although a thirty-year water treaty has been in effect between the two countries since 1996, India has diverted water according to its own will, depriving Bangladesh from her just share during the dry season.
It is very unfortunate that India has postponed the proposed Teesta water sharing deal with Bangladesh amid opposition from West Bengal Chief Minister Mamata Banerjee. Mamata had expressed her unhappiness about sharing of Teesta waters and strongly believes that Bangladesh should get only 25 percent of the share. But, it is the inalienable right of Bangladesh to have equitable share of the common rivers. Mamata also thinks that the pact is unfair. The situation raises questions about her law abiding mentality and respect for international law as no state has the right to divert the natural flow of water within its territory through unilateral action. The question of water sharing treaty should not arise for an international river.
Actually, water sharing for international rivers will be on the basis of international law of rivers. India has no right to embark or divert waters of international rivers like Ganges or Teesta. The International Law Institute in 1961 stated that every state has the right to utilize waters of international rivers subject to international law. The International Law Association in 1966 laid down that every riparian state is entitled to a reasonable and equitable share in the beneficial uses of waters of international drainage basin. The UN International Law Commission in Article 7 also emphasizes that states shall utilize an international river in an equitable and reasonable manner and the riparian states shall exercise due diligence to utilize waters of an international river in such a way as not to cause significant harm to other co-riparian states. Therefore, it is a legal right of Bangladesh to get an equitable share of international rivers. It is not benevolence that Bangladesh seeks but justice.
Moreover, the construction of the Tipaimukh dam for generating 1500MW on the transboundary Barak River, which is contrary to international law, has raised a hue and cry both in Manipur state in India and in Bangladesh, which is contrary to international law. According to experts, It may be strongly argued that the proposed dam is contrary to:
l    The 1997 UN Convention on the Law of Non- Navigational Uses of International Watercourses
l    Fourth preambular paragraph of the Indo-Bangladesh 1996 Ganges Water Treaty
l    Article 6 of the 1989 ILO Convention concerning Indigenous and Tribal Peoples
l    The 1992 Convention on Biological Diversity.
angladesh’s largest and most significant neighbor is India. Both countries share a vast land boundary and scholars and policy makers of both countries believe that Bangladesh’s relations with India are very important geographically, politically, economically, and strategically. Bangladesh has to utilize its geo-strategic importance with India while negotiating. The deal on transit will fulfill India’s long-standing demand for easier and shorter connectivity between its mainland and land-locked north-eastern states. Therefore, at the negotiation table, Bangladeshi negotiators must keep in mind the tactics of conducting diplomacy that obviously we must get something for giving something and, particularly, we must ensure our national interest through strong diplomacy. Bangladesh can ensure just and fair water sharing through strong diplomacy.
Turning to the supply side, large dam projects are not the only answer for India; there are other possibilities. Local rainwater harvesting and watershed development are also part of the supply side answers to the demand.
Relations between Bangladesh and India have often been complicated, challenging, tense, crisis-ridden and overwhelmed by accusations and counter accusations. But, however negative one might be to India and vice versa, a strong, bold, healthy relationship is a must for the betterment of both countries. And with regard to water disputes, mutual cooperation is a must to resolve the issue.
Finally, Bangladesh and India must respect each other’s legitimate rights and understand each other’s needs. Besides, mutual trust on commitments, implementation of commitments, and refraining from confusing statements and actions are also imperative for resolving disputes. And considering the future, both parties should minimize their differences for the sake of maintaining good neighborly relationships; Bangladesh should also maintain close contact with states adjacent to India to avoid future misunderstanding. Lastly, if other regions or countries can reach equitable agreements, why should Bangladesh not be able to reach similar agreements?
The writer is journalist and geopolitical analyst.