The Brahmaputra diversion plan was not a part of the Indian agenda during the last Joint River Commission (JRC) meeting held in Dhaka in January 2001, although the two nations agreed to discuss and resolve water- sharing- issues in the JRC while the bilateral body was formed in 1972. The commissioning of the Farakka barrage by India in 1974 mangled the JRC's efficacy for years. But Dhaka is learnt to have prepared to raise the Brahmaputra issue in the next JRC meeting to be held in New Delhi on September 29-30.

The Brahmaputra diversion project is a brainchild of the Indian National Water Development Agency. The agency maintains that the diverted waters will be used to irrigate 135,000 square miles of farmland as well as to produce 34,000 megawatts of hydroelectricity. Given that the construction of large dams to divert natural flows of waters has often resulted in massive collateral damages elsewhere in the world--including in the Farakka-- the project has already drawn flakes from the civil society, media and environmental groups of both the countries. It thus has the smell of a new crisis in the offing.

Dissecting a dispute

In the past, Dhaka and Delhi have had rare meetings of mind with respect to water dispute settlement. The constitution of the JRC aside, the Prime Ministers of India and Bangladesh acknowledged in their joint declaration of May 16, 1974 that shortage of waters during the dry season does impact negatively the navigability of the Kolkata port and the water-based civilization of Bangladesh. River demarcation too was agreed in 1974, but left undecided due to the international law's recognition of the mid-stream of bordering rivers as standard international boundary.

Dhaka also thought the adverse impact of the Farakka barrage on Bangladesh had been recognised by India due to the commissioning of three consecutive studies by the two governments since 1977 (1977,83 and 85) to discuss modalities in sharing common waters. Amid the 'changed' political ambience in the 1970s, Dhaka even carried the Farakka dispute to the UN.

Ever since, enough waters flew through the Ganges and the Brahmaputra. The Indian gain from the Farakka, in the first place, remains marred in controversy as yet and the costly barrage stands tall as an idyllic piece of engineering ingenuity. Studies show it had done precious little to improve the expected navigability of the Bhagirathi and Hoogli rivers. The navigability of the Kolkata port too had decreased further over the decades.

In Bangladesh, the Farakka barrage has been protested, derided and often blamed for the ills caused by water shortfall in the Ganges and its tributaries during every dry season. Particularly over the last few years, people and the intelligentsia from the Indian Bengal had shown more empathy with Bangladesh's concerns as the intra-state rivalry for waters inside India intensified.

The issue hinges on the margin of life and death due to the Ganges and the Brahmaputra accounting for 80% of water inflow of Bangladesh. And, the dependence of more than 80% of Bangladesh's 20 million rice growers on waters flowing from these two international rivers made it hard for our farmers to dispense with the shortage of water so badly needed to subsist and survive.

Their success, our sorrows

The Brahmaputra diversion plan is a mega project worth about US$40 to 125 billion. It will take at least 14 years to implement, making it the largest and most expensive water project in the world. The World Bank is likely to collaborate with the project, according to reports. If implemented, it might bring some success to India but will add to our existing sorrows.

For nearly three decades, the flow of the Ganges was much less than what we needed and deserved. The Brahmaputra's diversion will withdraw waters from the mainstream to the hundreds of reservoirs and a 600 miles long canal. It will divert up to one third of the flow of the Brahmaputra and the other common rivers toward southern India. Figuratively, the total amount to be diverted is 173 billion cubic metres a year; which will be consumed by Indian states of Uttar Pradesh and Karnataka.

Given that the diversion would redraw the hydrological map of the region and have immense ecological and social consequences, it might degenerate into a major bone of contention in an era of enhanced economic and political collaborations. Experts opine that the project would endanger the agro-based life of about 100 million people in Bangladesh by impacting upon their livelihood in a demonic manner.

The impact of it within India too is presumed to be monumental. Initial estimate reveals it will flood more than 3,000 square miles of land and displace 3 million people off their ancestral land.

Regional dimension

Of the 53 rivers that traverse through India into Bangladesh, only the Ganges waters are governed by a bilateral treaty signed on December 12, 1996. The treaty is valid for 30 years and it contains a mechanism to share waters during the dry season covering January 1 to May 31. 37% of Bangladesh's total land and 33% of its population are totally dependent on the Ganges waters alone. India had treated us badly with the Ganges waters until the last accord. We're hardly ready to receive a similar treatment with respect to the Brahmaputra.

Water sharing disputes had unleashed major conflicts in many regions of the world. Nations even went to war to ensure equitable supply of waters from the upstream; lying beyond geographic boundary. Mindful of such consequences, India and Pakistan signed the Indus water treaty in 1960 to stipulate the rights and obligations of the two countries with regard to the use of the Indus waters. In our case, the first Ganges water treaty of 1977 had sailed through rough waters. Meanwhile, India's water management strategy had included construction of a number of groin and embankment in many bordering rivers.

This led to the drift of waters in many Bangladesh rivers away from the natural stream, including in the Muhri of Feni, Kushiara of Sylhet, and Ichamoti of Satkhira. The Muhuri border is not yet marked, but the river had burst its banks and created islands, which had fallen inside India. The damage to Bangladesh thus occurred in a new front: loss of territory to India along the banks of the Muhri and some other rivers.

Rivers have laws

Sovereign nations have the right to shape their geographic features, excepting water bodies that transcend national boundaries and impact upon the lives of co-basin inhabitants. The Brahmaputra traverses 2900 km over 606,000 sq. km. land of China, Bhutan, India and Bangladesh.

Viewed from this standpoint, few rivers in the world would qualify as internationally as does the Brahmaputra. International laws also treat rivers in two broad categories. Rivers passing successively through or between the territories of two or more states are called 'successive rivers'. And, rivers running along the territorial boundaries of two or more states are called 'contiguous rivers.'

The Brahmaputra is a successive river while our bordering rivers like the Muhuri are contiguous. Any dispute relating to both the categories can be resolved by complying with the provisions of international laws. Law requires disputant states to negotiate in good faith, failing in which the matter may be brought to the UN's attention pursuant to Article 33 of the UN Charter. Bangladesh tried this particular course of action in the late 1970s when the water dispute was brought to the attention of the UN.

Hence, the lawful rights and interests of co-basin states must be recognised by India in devising any water development plan to divert the Brahmaputra waters. China, Bhutan and Bangladesh deserve, as legitimate parties, to partake in any project involving dispensation of Brahmaputra waters. A multilateral approach is hence more befitting if the Indian need for diversion is deemed as so acute. Setting up of joint river basin commission may also be contemplated to avoid any clash of interests of the co-basin beneficiaries.

Law and precedents

Then, there are existing laws, customs and precedents that nations must comply with to resolve disputes arising out of any water- sharing scheme. A 1925 treaty between Norway and Finland reads, ' no measures may be taken in the territory of the contracting states which, to the detriment of the other states without their consent, might involve changes in the natural regime of the latter's waterways.' The boundary water treaties between the US and Canada follow similar guidelines and customs.

The Salzburg Resolution of the Institute of International Laws (1961) states that 'the right of a sovereign state to use the waters of a shared river is limited by the right of utilization of other states interested in the same water.' As well, the Helsinki rules of 1967 and the International law commission's second report of 1986 prohibit co-riparian states from altering the flow of international waters. Helsinki Rule also talks of equitable apportionment of beneficial uses.

The general commentary of International Law Association (ILA) states, 'any use of water by a basin state, whether upper or lower, that denies an equitable sharing of uses by a co-basin state, conflicts with the community of interests of all basin states.

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Dhaka must hasten to make an official proposition to India invoking such legal guidelines and India must seek collaborations from the beneficiaries of the Brahmaputra water--including China and Bhutan--to undertake a multilateral project that would cater for the rightful interests of all the parties.

Author and columnist M. Shahidul Islam is a senior assistant editor of this paper.