Even before holding bilateral talks, alongside arbitration, policymakers of the Bangladesh government should always keep in mind that the Indian government has failed in diplomatic negotiations with Bangladesh on some crucial issues, such as the border killings by the Border Security Force, Teesta water sharing treaty, construction of the proposed Tipaimukh dam and enclave issue, etc, writes SM Sarwar Rahman

WITH the hope of overcoming the chronic problems of floods during the monsoon and drought in the dry season, since as early as the 1970s the government of India planned to implement a project named ‘Interlinking the major rivers of India’ to transfer and redistribute water from the Brahmaputra and the Ganges basins, through 30 link canals, with an aim of interconnecting the major rivers of these two basins. An estimated amount of 173 billion cubic metres of water will be transferred to the western and southern regions of India from these two basins to irrigate 30 million hectares of agriculture land, and to generate 34,000 megawatts of electricity from this project. The project is composed of two components, namely the Himalayan and the peninsular components, consisting of 14 and 16 link canals respectively.
The National Water Policy of India, 2002 explicitly states in article 3.5 that water should be made available to water-short areas by transferring it from other areas including from one river basin to another, based on a national perspective, after taking into account the requirements of the areas’ basins. It is reported that there would be major water diversion from the rivers of tributaries of the Ganges and the Brahmaputra, if India’s mega programmes of inter-basin water transfer is implemented. Bangladesh is a co-riparian state with India and is located downstream of the Indian potions of Ganges and Brahmaputra rivers.
The Indian plan envisaged diversion of 200 to 250 BCM from the Ganges Brahamaputra, Teesta and other eastern rives to the water-shortage areas in the states of UP, MP, Haryana, Maharashtra, Rajasthan and Gujarat, Orissa, Andhra Pradesh, Karnataka and Tamil Nadu. Water will be diverted from all the major tributaries of the Ganges, eg Sarda, Cosi, Mecho, Ganduki, Karnali, Ghagra originating from Nepal of the central, north and western part. The water from main channel, Manos and Samkosh, major tributaries of Brahamaputra will be diverted to Teesta and the Ganges on priority basis to take it to south India. It is planned to divert 173bcm from Brahamaputra Ganges. The overall goal of Indian river-linking mega project is to divert the water to deficit areas from surplus areas in order produce additional food grains and electricity and to reduce the vulnerability of natural disasters in India.
The Himalayan and peninsular are the two major components of the project. The Himalayan component has 14 links and will accrue irrigation benefits in 30 million hectares and will also generate hydropower of 34,000MW. About 250bcm of additional water would be available from the Himalayan river system. The peninsula component has 16 links with irrigation benefits of 13 million hectares and 4,000MW hydropower generation.
The evolution of the concept of Indian inter-basin water transfer plan has gone through several iterations, starting from a proposal by Sir Arthur Cotton in the 19th century to Dr KL Rao’s and Captain Dastur’s idea of Ganga-Cauvery link and Garland canal respectively during the 1970s. Actually ‘Ganga-Cauvery Link’ proposal proposed by Dr KL Rao in 1972 envisaged 2,640-kilometre long Ganga Cauvery link. Thereafter in 1974 Captain Dinshaw J Dastur suggested a canal known as ‘Garland canal’. Both these ideas were considered to be mere dreams and not feasible projects by the Ministry of Water Resources. Afterwards, in 1980, India proposed a National Water Master Plan where Inter Basin Water Transfer was the main item. In 1980, the Ministry of Irrigation and Central Water Commission of India formulated a National Perspective Plan for the inter-basin water transfer. An agency called the National Water Development Agency was set up for the purpose, which recommended the perspective plan with 30 possible links for a set of inter-basin water transfer canals.
In 2002 the Supreme Court of India, responding to a public interest litigation, directed the Indian government to consider linking all major rivers within the next 10 years. The Indian Supreme Court in a bench consisting of chief justice BN Kripal and justice YK Sabarwal gave verdict on Oct 31, 2002 on the River Linking Water Basin Water Transfer project. The bench ordered the central government to complete the river linking project before 2012, which was previously planned for 2043. The bench gave targets to complete the detailed project report by 2006 and implementation of the same by December 2016. On 27 February 2012 the Indian Supreme Court cleared the path for the implementation of the mega project. The court in its order said the central Indian govt the state concerned should participate for its effective implementation in a time-bound manner. The Indian Supreme Court also ordered quick implementation of the project and appointed a high powered committee to put it into action.
According to the order, the federal government of India will not be required to consult with the state governments regarding implementation of the project.
Dr APJ Abul Kalam, former president of India, proclaimed his government’s policy initiative on August 14, 2003, proposing a networking of rivers for eliminating the scourges of the cycle of drought and flood and promoting the economic advancement of India.
The project involves linking 30 major rivers and diverting the water of the Ganges and the Brahmaputra about 30,000 square kilometres of Khulna and Barisal division and part of Rajshahi and Dhaka division, which will all be severely affected. There will be no flow in the north western rivers - the Teesta, Mahananda, Dharla and Dudhkumar during the monsoon, as water will be diverted to the river Fulher through the river Mechi.

Possible environmental and socioeconomic compact on Bangladesh
IF THE Farakka experience is any guide, it is easy to surmise the potential adverse consequence that the Indian river-linking project will have on the economy, ecology, biology and sustainable development of Bangladesh. Being downstream of India and at the delta of the two mighty international rivers, the Gangas and the Brahmaputra, Bangladesh bears the full brand of monsoon floods every year and severe draught during the dry months.
Under the current proposal ‘India wants to divert 173 billion cubic metres of water per year from Brahmaputra, amounting to 193,703 cubic feet per second.’ This rate of extraction is greater than that the total flow volumes in the Brahmaputra River during the dry season. Such a drastic reduction in flow rates will affect many irrigation projects in rural Bangladesh that are dependent on the Brahmaputra for their water supply. The lack of sufficient water in major river basins will severely affect natural water bodies suck as heels, haors and baors which are linked to rivers through khals and used for fish production and development. The possible environmental impact of the river linking project will be the slow death of the Bangladeshi segments of all international rivers that flow from India. The Farakka-Sundarbans component of the Indian river linking project will further exacerbate the on-going tree dying syndrome. Scientists predict that the Indian river linking project will upset the hydrological cycle, by changing the directions of natural flows, the sediment load composition and the nature of the river mouth delta. This project will irreparably alter natural ecosystem by an unnatural modification of the hydrological cycle through the use of canals and will seriously affect biological diversity by upsetting the natural equilibrium.
The significant problem of Bangladesh is that diversions of the Ganges and other affected rivers will occur entirely within India’s borders even though Bangladesh may account for only eight percent of the Ganges-Brahmaputra-Meghna basin, its hydrological catchments encompass eighty eight percent of the country’s total area. The Indian river-linking project has the potential to be an unprecedented man-made disaster for natural ecosystem and human health. In terms of the environmental impact Bangladesh faces, if the project proceeds as planned, it is reasonable to assert that widespread destruction of ecosystems and the extinction of unique coastal, riparian and aquatic species are among the likely consequences. It will have great adverse impact on livelihoods and the social economics and environmental condition, including every sector of the country. Bangladesh’s failure to secure a lair and rightful share of water from its international rivers will expose its economy, public health and industrial development to uncertainty and grave risks. Sever deforestation, soil salinisation, water logging, drought, flood and water pollution are some of the adverse environmental impacts that may confront Bangladesh if inter river linking project proceeds as planned.
Experts say biodiversity, agriculture and industry of the Ganges-dependent area, both sides of the river Padma and parts of the Meghna riverbank will be badly hit if India executes river plan. The assessment report of Bangladesh forecast a decline in river water and sedimentation, rise in salinity of soil, surface a ground water, damage to agriculture, fisheries, navigation routes, coastal biodiversity and fisheries and an increase in river erosion. Experts say that if the Indian project is implemented, Madhumati, Dhaleshwari, Padma and Meghna rivers will face saline intrusion. The Brahmaputra, which is known as Jamuna during the dry seasons, will lose navigability. Some others rivers, Gorai, Madhumati, Nabaganga, Ichhamati, Mathabhaga, Kapatakkhya, Betna, Meghna, Surma, Kushiara, Old Brahmaputra, Dhaleshwari, Buriganga, Shitalakkhya, Arialkha & Turag will shrink. The project will require construction of large barrages to store water for the lean period. India will have to release water during the monsoon, resulting in prolonged floods in Bangladesh. According to Ainun Nishat, vice-chancellor of BRAC University, it would be disastrous if India made barrages on the Brahmaputra and diverted water of the river. If they divert water from the Brahmaputra, even Dhaka would be affected by salinity, he added.

Role of international organisations
INTERNATIONAL law does not permit the government of India to implement the project without the consent of other basin states like Bangladesh. It ignores Bangladesh’s lawful rights and entitlement to the international river that flows through its territory. There are four principles of international watercourses law and they are absolute territorial sovereignty, territorial integrity, prior appropriation and equitable utilisation. The equitable utilisation is the best principle. The traditional equitable utilisation doctrine was first codified by the Helsinki Rules on the use of water of international rivers. The Helsinki rules affirm that the right of a riparian state of its international river is limited to the extent that a riparian state has the right, within its territory, to a reasonable and equitable share in the beneficial uses of waters of an international drainage basin (Part V of Helsinki rules).
The principles of equity and the rule of equitable utilization could be the best weapons to tackle the sensitive issues between India and Bangladesh. Moreover the doctrine of equitable utilization has become the basic rule which is supported state practice and under the international law. In the Meuse case of 1937, the permanent court of international justice came to the conclusion that the principle of equity is part of international law. There are certain theories, which combined the principle of equity and they are: I unjust enrichment, Estoppels, Acquiescence and Ex-Aequo ET Bono.
The revised Helsinki Rules that prescribe international customary law with regards to trans-boundary waters are applicable to India and Bangladesh as they are trans-boundary water course states. Even though India and Bangladesh have signed a treaty for the sharing of the Ganges at Farakka, this agreement regulates only part of the water that they share within the Ganges-Brahmaputra-Meghna basin. The emerging principles of sustainable development, environmental protection and human rights to water within the doctrine of equitable share, as espoused by the International Law Association under the revised Helsinki Rules, are applicable to both India and Bangladesh. These rules would also apply in the event that the existing 1996 treaty was reinterpreted in the light of emerging international environmental concerns and customary laws and norms.
The most relevant international precedent in relation to the Indian river-linking project is the Gaveikovo-Nagymaros dispute between Hungary and Slovakia in 1997. In this case, the ICJ provided important significant guidelines in relation to the use and ownership of shared water resources. The ICT, in deciding the effect of the construction of the Gaveikovo-Nagymaros dam project on the Danube, held that Slovakia, by unilaterally assuming jurisdiction over shared watercourse, deprived Hungary of its right to an equitable a reasonable share of the national resources and consequently failed to respect established principles of international Law.
Indian’s project is a breach of Article 32 of the Helsinki Rules because it fails to take appropriate measures to prevent, eliminate or control condition of water, whether resulting from human conduct or otherwise, that pose a significant risk of harm to human life/health, property or environment. If India proceeds with the project as planned, it will not only violate a number of obligations under the Helsinki framework but will also be disregarding a diverse array of binding treaty provisions under the most important and widely ratified MEA’s, namely the convention of Biological diversity. According to Articles 56 of the revised Helsinki Rules, India is supposed to have exchanged all its own EIA information with Bangladesh. Contrary to this provision, till now, India has neither allowed Bangladesh to participate in an EIA nor provided Bangladesh with any scientific, technical or feasibility studies of the scheme, consequently, India is in a clear breach of its international law obligations as expressed in the revised Helsinki Rules. There are so many provisions of international law on co-operation of such problem - a) Principle 13 of Stockholm Declaration 1972 (b) Principle 21 of world charter for nature 1982 (c) Article 18 of ASEAN Agreement on the conservation of Nature, 1985 (d) Principle 5 of Rio Declaration, 1992 (e) Article 3 of convention of biological Diversity, 1992 (f) Principle 3.1 of New Delhi declaration on sustainable development 2002.
Over the years India has been assuring Bangladesh of not taking any unilateral decision on its national river-linking project but it is building around 700 dams on its river and many of them are for facilitating the mega project. India never stopped the implementation of the project. The draft of its National Water Policy 2012 also encourages inter-basin transfer of water through river-linking.
Under the current circumstances, the government of Bangladesh will probably try to engage India in a fruitful discussion to stop the inter-linking of river project and the resultant devastation, as that is the only option available. But decades of experience have made concerned people cynical about bilateral negotiations. Even before holding bilateral talks, alongside arbitration, policymakers of the Bangladesh government should always keep in mind that the Indian government has failed in diplomatic negotiations with Bangladesh on some crucial issues, such as the border killings by the Border Security Force, Teesta water sharing treaty, construction of the proposed Tipaimukh dam and enclave issue, etc. After successful examples of the Danube Commission, the Nile Basin Agreement and the Mekong Basin Treaty, it is now widely accepted that trans-boundary water courses are best managed if a basin-wide approach is taken. For a permanent solution to the GBM basin problem, which is threatening the historical bondage of the people nourished by ‘Mother Ganga’ for centuries, the inclusion of all the water course states in the negotiations is inevitable. The 1997 UN convention can and should play the guiding role here and in all other trans-boundary water course disputes as was originally envisaged the ICJ. The Gabeikovo Nagymaros project case has shown that this convention is the statement of international law in this field, even if it is not in force yet. It should be the statement of law in our case as well, even though India in not a signatory, as it embodies customary rules of international law.
SM Sarwar Rahman is editor,
Manobadhikar Chitro.
Reference
1.     Mid-term Report on Impact Assessment of the proposed Indian river-linking project for inter-basin water transfer by the Ministry of Water Resources of Bangladesh.
2.     Abu Rayhan M Khalid, ‘The interlinking of rivers project in India and international law: An overview’.
3.     Alam, Shawkat, ‘An Examination of the International Environmental Law Governing the Proposed Indian River-Linking Project’.