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May 9, 2004

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Legality of proposed river linking plan of India

Abdullah Al Faruque

International rivers that flow across two or more countries are treated as "shared resources" and "community of interests" among the riparian states as survival and livelihood of people can be very much dependent upon the utilisation of the waters of these rivers. International rivers are supposed to serve and feed the humanity of the world. Therefore, unilateral withdrawal of water of these rivers by one state can pose threat to survival of people of another and as such, it is forbidden by international legal norm.

The proposed river linking project of India will involve rivers, many of which are also shared by Bangladesh and hence, these are international rivers in character and their utilisation clearly fall within the purview of international law. It is widely and, of course, justifiably predicted that the proposed Indian River-linking project which has also been endorsed by the directive of its apex court, if implemented, will bring catastrophic consequences for the people of Bangladesh. The implementation and operation of river linking plan will cause a major ecological disaster and desertification of the vast areas, and consequently, will lead to displacement of huge number of population of Bangladesh. This write up looks into legal validity of Indian proposal from the perspective of international law of the rivers. International law of the non-navigation use of international rivers are now settled body of norm and consists of both substantive and procedural rules which have been developed through bilateral and regional treaties relating to utilisation of waters of these rivers, decisions of international courts and tribunals. In fact, widespread state practice regarding these rules has given rise a set of customary international law relating to international law of the river to the effect these principles are binding upon all nation states.

These customary international law principles have been codified by the UN Convention on the Law of the Non-Navigational Uses of International Watercourses' adopted in 1997. The Convention provides both substantive and procedural rules for the States to follow in their dealing over international watercourses. The Convention aims at ensuring the utilisation, development, conservation, environmental obligation, management and protection of international watercourses and promoting optimal and sustainable utilisation thereof for present and future generations. The convention attempts to strike a balance between the competing interests of upper and lower riparian States, and contains substantive principles of water course like 'equitable and reasonable utilisation', and the 'obligation not to cause harm'.

Apart from these substantive principles, the convention also lays down important procedural mechanisms like-co-operation which includes the obligation to exchange data and information regularly, the obligation to notify other riparian States of planned measures, the establishment of joint mechanisms, environmental impact assessments, the provision of emergency information, the obligation to enter into consultations, and the obligations to negotiate in good faith. However, irrespective of the fact that a particular State has not ratified the Convention, still it is bound by the customary principles of international law of river.

Apart from this multilateral treaty, these customary legal norms regulating utilisation of waters of international rivers have also got concrete recognition by the International Court of Justice in 1997 in its decision in the case of Gabcikovo-Nagymaros which was concerned a dispute between Hungary and Czechoslovakia over building two barrages on the Danube. The judgement of the ICJ in this case clearly indicates concept of community of interest in the international rivers as well as the necessity of co-operation of the states in the area of prevention of environmental harm arising out of activities regarding these common rivers.

Firstly, the Indian river-linking plan should be viewed in the light of existing principles of international law that are based on customary international law, multilateral treaty and decision of the ICJ.

No harm principle>
The principle of 'No harm' denotes that every State is bound to act with shared natural resources in such a way that it will not cause an appreciable damage beyond the limits of its territory. The principle aims at protection of common interest of the riparian states pertaining to international rivers and seeks to balance between the exclusive use of resources and the inclusive interest of the larger community in order to prevent or minimise possible injuries.

The 'no harm' principle is also linked to the concept of 'abuse of rights' which implies that states will not abuse their rights in carrying out their activities in their territory which may produce significant harm in another country. Article 7 of the Watercourse convention of 1997 has incorporated the principle as it says that the 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. If any significant harm is caused by a state, it is under an obligation to consult with affected state for eliminate or mitigate such harm and to discuss the question of compensation.

Equitable and reasonable utilisation
The traditional principles of allocation of shared natural resources like absolute territorial sovereignty, absolute territorial integrity, prior appropriation (historical use), and limited territorial sovereignty- are no longer acceptable to the international community. Rather equitable and reasonable utilisation of international watercourses has emerged as a dominant and valid norm under international law of river. The principle has been incorporated in numerous bilateral treaties and multilateral treaties. Indeed, the concept of equitable and reasonable use of international rivers has now assumed the character of norm of jus cogen under international law. Generally, in the context of international rivers, the principle implies 'equity of needs' of the riparian States that should be reflected in legal arrangement relating to utilisation of waters of such rivers.

The determination of equitable use requires a balancing of interests of the riparian States concerned considering all the relevant factors pertaining to them. Under this principle, all of the riparian states of an international river or lake or all of the basin states of an international drainage basin have a right to an equitable and reasonable share in the uses of waters of such river. Conversely, one riparian or basin nation should not use or allow use of these waters in a way that unreasonably interferes with the legitimate interests of other co-riparian or basin states. The principle has become a recurring theme in the Watercourse convention of 1997. Article 5 of the convention provides that states shall utilise an international watercourse in an equitable and reasonable manner. Furthermore, it provides that international watercourse shall be used by states with a view to attaining optimal and sustainable utilisation thereof and consistent with adequate protection of the watercourse.

In Gabcikovo-Nagymaros case, ICJ also shed light on the principle of equitable utilisation. The ICJ observed that Czechoslovakia by unilaterally assuming control over Danube river with the continuing effects of the diversion of its water has deprived Hungary of its right to an equitable and reasonable share of water of Danube and thus, Czechoslovakia failed to respect the international law of rivers.

Transboundary co-operation
The very nature of shared resource like international rivers necessitates co-operative and collaborative approaches of the States in the exploitation and management of these resources in efficient and peaceful way. On 13 December, 1973, The UN General Assembly Resolution on 'Co-operation in the field of the environment concerning natural resources shared by two or more States' adopted in 13 December, 1973, has called for the States to establish 'adequate international standards for the conservation and harmonious exploration of natural resources common to two or more States.' It also provides that co-operation between countries 'must be established on the basis of a system of information and prior consultation.' Art.3 of the Charter of Economic Rights and Duties of States, 1974 states to the similar effect: "In the exploitation of natural resources shared by two or more countries, each state must co-operate on the basis of a system of information and prior consultation in order to achieve optimum use of such resources without causing damage to the legitimate interests of others." The most important aspect of transboundary co-operation is that a State involved in any proposed project for the use of shared resources must inform the other State which is likely to be affected by such project. In this way each state will have the opportunity to determine whether the project in question is going to cause any damage or it entails a violation of principle of equitable and reasonable use of the resource.

One of the important dimensions of transboundary co-operation is an obligation of the concerned state to undertake environmental impact assessment in order to measure possible negative consequences that may ensue from the project. Article 8 of the Watercourse convention reinforces the legal obligation of the states to co-operate as it provides that States shall co-operate for mutual benefit and in good faith with a view to achieving a regime of equitable and reasonable utilisation. Such co-operation shall be based on regular exchange of data and information on any planned measures, duty to prior notification concerning planned measures with possible adverse effects, and consultation and negotiations concerning planned measures.

Therefore, unilateral plan of India involving international rivers will violate the above principles of 'No harm', 'equitable utilisation,' and 'international co-operation' relating to use of waters of international river.

Secondly, Indian proposed plan goes against spirit of existing bilateral treaty of Ganges Water Sharing treaty between Bangladesh and India concluded in 1996 for sharing water of the river of Ganges. In particular, Article 9 of the treaty provides that both governments have agreed to conclude water-sharing agreements with other common rivers on the basis of principle of 'equity', 'fairness' and 'no harm to either party.' This provision of treaty obligates to the State parties to enter into similar bilateral legal arrangement with respect to allocation of other international rivers shared by them. The treaty also contains principles like "good neighborliness", "optimum utilization of the water resources", "fair and just solution" in its preamble. The preamble of treaty also commits to the resolution of other important issues like irrigation, river basin development and generation of hydroelectric power by mutual agreement for the benefit of the peoples of the two countries. Therefore, Indian plan will come into clear conflict with these treaty obligations. The treaty should be used as reference point for the discussion and negotiation for any plan regarding use of waters of other international rivers shared by the two countries.

Thirdly, Indian Supreme Court's directive to implement proposed linking project within certain time limit is fallacious from the international law point of view. It is one of the cardinal principles of international law that municipal court is bound to respect customary international law. While municipal court remains absolutely free within domain of municipal law to dispense its obligations towards welfare of the people of the concerned State, it can not act in disregard of well established and customary principles of international law, particularly when such directive or decision involve question of international law and can produce far reaching negative consequences for the welfare and survival of people of other state. Thus, municipal court can not simply overlook the basic principles of international law of the rivers that takes into account the legitimate interests of both upstream and downstream countries in utilisation of the waters of these rivers.

From the preceding discussion, one can fairly argue that implementation of proposed inter river linking project will be a clear violation of international law of the rivers, bilateral treaty obligations and international legal norms.

Abdullah Al Faruque is an Assistant Professor, Dept. of Law, University of Chittagong.


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