India's inter-linking of river project is devoid of legal basis

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Offline abduarif

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Dr. M. Shah Alam

Dr. M. Shah Alam
It appears from recent newspaper reportings in India and Bangladesh that India has not deviated from her decades old plan of massive inter-linking of river plan to divert substantial amount of water from Brahmaputra to her South West region. It is learnt that our Ministry of Water Resources has asked the Ministry of Foreign Affairs to contact the Indian Government to know her position and also to let India know our position on the issue. We are yet to know whether such communication has at all taken place, and what is the outcome of any communication if it has taken place.

India actually started to think of such a plan after former irrigation minister of India Dr. K.L. Rao spoke of his idea, back in 1972, of creating a national water grid for India. His proposal envisaged interlinking of rivers—Brahmaputra-Ganges and Ganges-Cauvary, for massive inter-basin diversion of water from North-East India to South-West India to make for the insufficiency of water in that region. The National Water Development Agency of India formed in 1982 took up the idea to consider it as one of her long-term water policy alternatives. In 1987, India actually included such a plan in her national water policy as a possible solvent of her water problem.

On August 19, 1994, a Dhaka based Bengali language weekly Sonar Bangla published a big front page news report giving details of India's mega project of inter-basin water diversion. The weekly referred to the then Indian Water Resource Minister Bidya Charan Shukla who admitted the existence of such a project in a press conference in Gowhati on June 6 1994. This was a time when Bangladesh had no treaty with India on sharing Ganges water, and India unilaterally withdrew water at Farakka as they wished. 30-year Ganges water sharing treaty was signed in December 1996, which gave a somewhat acceptable solution to Ganges water sharing. The provisions of the treaty unequivocally expressed resolve of both sides to solve the problems of common rivers specially water sharing issue through mutual consultations and negotiations, and not to do anything detrimental to either side, specially lower riparian. But we failed to raise or even hint at the issue of lndia's grand design which, if ever implemented, would create consequences, equal to half a dozen Farakka combined together, strangling the existence of Bangladesh.

It is only after The Daily Guardian in London had published a report on July 24, 2003, on India's grand water diversion scheme that we showed some reactions, which, inter alia, included a protest note to India on August 13. Indian President could never have enthusiastically spoken of India's water diversion plan in a ceremonial speech on the eve of her national day, which he did, nor the India Prime Minister could so nationalistically declare his resolve to take up the project on war footing, which he actually so resolved, nor the Supreme Court of India in a public litigation case on water sharing dispute between Tamil Nadu and Karnataka could instruct the Indian Government to complete the diversion project within ten years, had there been no development in the minds as well as in the practical activities of the Indian Government relating to the project. And we in Bangladesh were all kept in the darkness!

To utter surprise of every one in Bangladesh, Indian side did not even want to include it in the agenda for discussion in any meeting of the Joint Rivers Commission (JRC). India wanted by all means to avoid detailed discussion on her river linking project on the plea that it was only at 'conceptual level' and hence, there was nothing to discuss about. Bangladesh would be consulted, if its interests were affected, they kept on assuring her lower riparian. Were the project at merely conceptual level, devoid of concrete substance and distant from reality, why was India so secretive and sensitive about it, even not ready to mention and discuss the matter?

India knows the possible reactions and repercussions it would generate once the project is fully revealed. She understands the international legal implication of the practical implementation of the project. India knows the project entails massive inter-basin diversion of water of the scale and dimension unknown in history. Task force would only recommend the most optimal of the various alternatives to implement the project. If the issue of diversion of water is clear and India does not hide it, why it cannot be discussed now? The very concept of diversion of water of the common rivers by upper riparian without the consent of the lower riparian is untenable in international law and in equity. It is already a contentious issue. How can talks on it be made contingent upon completion of the work of a task force assigned to work out implementation details of the project?

Let us look back for a while. When on the basis of newspaper reports in the early fifties, the then Pakistan Government protested Indian plan of constructing Farakka barrage, India replied that it was merely a concept, and, therefore, there was nothing to talk about. The same old story. Only difference is that the story this time, if goes uninterrupted, would be many times longer and graver. While Pakistan achieved what it wanted in sharing Indus water with it India by Indus water treaty in 1960, it did not pursue its case as vigorously for Farakka in the Eastern wing. Farakka became a harsh reality and fait accompli.  Rivers are life-lines for Bangladesh. In the face of impending danger, Bangladesh is required to act and act in right earnest.

There are many international principles, norms, rules, laws, conventions and bilateral treaties on the regulation of the use of the water of international rivers and on the protection of world environment, which can provide adequate weapons to fight India's plan. Upper riparian cannot interfere with the flow of the river in a way which is substantially damaging to the interests of the lower riparian. This international norm has also been confirmed by the UN Convention on International Water Courses, 1997. Should India decide to go ahead with the project in violation of all norms, and despite the fact that her lower riparian neighbour would face grave consequences, and should there be no formidable force to resist India's environmental aggression, it is imperative for Bangladesh to think of and prepare for various alternatives as countermeasures, including, as it has been already advised by some of our experts, to build a multi-purpose Ganges barrage.

The writer is Professor of Law, University of Chittagong currently on Deputation as Member, Law Commission of Bangladesh.

Abdullah Al Arif
Department of Law
Daffodil International University
Dhaka, Bangladesh