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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 37
September 22, 2007

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The proposed Indian river-linking project: Infringement of rights

Dr Shawkat Alam

In 2002, the Supreme Court of India, in response to a writ petition (civil no. 512/2002), authorised the interlinking of Indian rivers which will divert a huge amount of water from major international rivers. There are two components of the project. The first one aims to link fourteen Himalayan rivers in northern India. The aim of the second component is to connect sixteen peninsular rivers, including the Ganges and the Brahmaputra. Bangladesh Government has expressed its grave concern over the potential impacts of the project on both the economy and environment of Bangladesh. The proposed scheme has created new and substantial tensions between the two nations.

Photo: savetibet.org

The project's primary objective is to ensure adequate water supply for domestic, industrial and agricultural use and improve the water flow, food security, and aquatic navigation in India. The scheme will also create jobs for rural people and help counter the mass migration of people from rural to urban areas. Further, India reasons that the project will reduce flood and drought conditions in the northern and southern parts of India and generate hydropower and irrigation. The project represents an unprecedented bid for India to ensure its internal water security. However, from an international point of view, the benefits India may reap from the project's completion are likely to be dwarfed the monumental harm that will be suffered by Bangladesh.

For Bangladesh the protection of the nation's water resources is absolutely vital for maintaining the well-being of the ever-growing population which is now well near 150 million. The importance of adequate water flows for the maintenance of ecological balance and sustainable development in Bangladesh cannot be overstated. There is an increasing demand for fresh water to meet the needs of the population and for pursuit of economic and social development. Bangladesh's failure to secure a fair and rightful share of water from its international rivers will expose its economy and industrial development to uncertainty and grave risk. Severe deforestation, soil salinity, drought, flooding are only some of the adverse environmental impacts that may confront Bangladesh if the project proceeds as planned. Further, the intrusion of salinity will render the ground water contaminated and undrinkable, causing further scarcity of pure drinking water and a dire threat to public health. The harm that the potential impacts will have on the people of Bangladesh is even more worrisome considering that half the nation's population already lives below the poverty line.

One of the fundamental principles of international law is that the holder of a right must exercise it in a manner not injurious to others. This obligation requires a state not to use its territory and resources to the detriment of another state. This foundational tenet of international law naturally extends to the management and exploitation of international rivers.

The doctrine of “equitable use” is arguably the most longstanding and settled principle of international law governing international rivers. This doctrine establishes that states shall utilise optimally, equitably, and reasonably the watercourse in their respective territories. The traditional equitable use doctrine was first codified by the Helsinki Rules on the Uses of Waters of International Rivers. The Helsinki Rules affirm that the right of a riparian state to its international rivers 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 the waters of an international drainage basin.”

The development of international environmental law in the past fifteen or so years has been marked by growing international concern over the size of the world's population and its impact on the scarcity of finite resources, particularly fresh water. While the principle of equitable use has not yet been displaced, international environmental law has evolved such that there are now additional factors that must be considered when determining what is “reasonable” within the doctrine of equitable use. As a result of recent reforms one can no longer determine whether a particular use is equitable and reasonable without examining that use in an integrated context.

A human rights-based approach to international environmental law has begun to emerge, recognising that securing human rights requires safeguards to the natural environment, including in the context of international rivers. In 2004, the International Law Association completed the revision of the 1966 Helsinki Rules, seeking to integrate the traditional rules on transboundary waters with the doctrine of sustainable development and international human rights law. Under the revised Helsinki Rules, a question of what is a reasonable and equitable use shall first be determined on the basis of allocating waters to satisfy vital human needs. Further, this rule is qualified so as to exclude water needed to support general economic activity.

Article 8 of the revised Helsinki Rules is commendable in its acknowledgment that “the obligation to minimise environmental harm must take into account both harms to water and harms caused by using water.” However, in terms of the enforceability of such a provision, it is noteworthy that the International Law Association has indicated that the duty to minimise environmental harm could only extend to one of “due diligence” or a duty to take “appropriate measures.”

These revised Helsinki Rules are applicable to India and Bangladesh as they are transboundary watercourse states. These rules will be applied in a dispute between two of the transboundary states if it arises for determination and settlement in the International Court of Justice (ICJ). The most relevant international precedent in relation to the Indian River-Linking Project is the Gabcikovo-Nagymaros dispute between Hungary and Slovakia in 1997. The ICJ, in deciding the effect of the construction of the Gabcikovo-Nagymaros dam project on the Danube, held that Czechoslovakia, by unilaterally assuming jurisdiction over shared watercourse, deprived Hungary of its right to an equitable and reasonable share of the natural resources and consequently failed to respect established principles of international law.

The ICJ's judgment in Gabcikovo-Nagymaros represents a substantial strengthening of the claims of aggrieved downstream states such as Bangladesh. The decision also persuasively suggests that a far more sustainability-focused management of international rivers will be expected of states when they are brought before international judicial bodies for alleged breaches of treaty provisions.

In light of the seemingly insurmountable scientific evidence concerning the project's anticipated negative impacts on the environmental flows, overall ecological health, and socio-economic status of millions of people in downstream Bangladesh, it appears to be almost stating the obvious to assert that the Indian River-Linking Project will unambiguously violate various principles of the revised Helsinki Rules, including the duties to maintain ecological integrity, minimise environmental harm, and avoid actions resulting in transboundary harm.

There are also numerous procedural principles to which a riparian state desirous of undertaking a development affecting common rivers must adhere to. These international obligations include the duty to: (a) provide adequate notice of intention and the factual state of affairs; (b) actively engage in consultation, negotiation, and mediation; and (c) suspend a proposed project pending the peaceful settlement of any inter-nation dispute. The Helsinki Rules further oblige any state which is planning to undertake or approve a development that is likely to alter the regime of the catchment basin to provide notice to any lower riparian state which is likely to be affected due to the anticipated changes in the water system.

The need to undertake environmental impact assessments (EIA) may have crystallised into a rule of customary international law. Under Article 29 of the revised Helsinki Rules, EIAs include an assessment of the effects of proposed activities on human health and safety as well as the impact of proposed activities on the environment. Article 31 of the Helsinki Rules demands that where there is the potential threat of damage from activities of one co-riparian nation on the environment of another, the adversely affected nation has an equal right to participate in the EIA process even though the project may be completely outside its territory (as in the case of Bangladesh and the Indian River-Linking Project).

This joint EIA process shall include: (a) an assessment of the waters and the environment likely to be affected; (b) the provision of a detailed description of the proposed activity and its likely effects, with particular emphasis on any trans-boundary effects; (c) the identification of ecosystems likely to be affected, including an assessment of the living and non-living resources of the relevant water basin or basins; (d) a description of mitigation measures appropriate to minimise environmental harm; and (e) an appraisal of the institutional arrangements and facilities in the relevant drainage basin or basins. India has failed to comply with a single one of these requirements.

India also appears to have breached its obligations in relation to Article 23 of the revised Helsinki Rules which codifies the precautionary principle established by the Rio Declaration. Principle 15 of the Rio Declaration establishes that when there is a lack of full scientific certainty and there is the possibility of serious threats or irreversible damage to the environment, states shall err on the side of caution and establish “cost-effective measures to prevent environmental degradation.” Given that the planning and preliminary construction stages of the project have proceeded without any genuine acknowledgment of the enormous uncertainties surrounding the severity of environmental harm likely to be caused, it is evident that the Indian approach to date is characterised by an absolutely minimal effort towards implementing cost-effective precautionary measures.

Furthermore, an integral part of the precautionary approach in an international context is that the proponent state has a duty to engage other affected states with prior information and early consultation. Such engagement by India with Bangladesh has been virtually non-existent.

Article 35(1) of the revised Helsinki Rules is of particular importance to Bangladesh's predicament, as it declares that transboundary states shall cooperate in the management of waters to prevent, control, or mitigate droughts, having due regard to the interests of other basin states. This mandatory inter-state consultation includes a requirement for the establishment of a cooperative strategy that addresses the physical, biological, and socio-economic aspects of the anticipated drought conditions. It is noteworthy that Bangladesh has pre-existing diplomatic channels with India such as the Indo-Bangladesh Joint Rivers Commission. Such avenues could have easily been used to facilitate discussion of the balancing of interests of all stakeholders in the project. Instead, India has to date chosen to ignore these bilateral channels of communication and has neglected to engage in any meaningful dialogue about the project with its co-riparian neighbour.

The unilateral commission of the Indian River-Linking Project constitutes an unfair and unjust approach to the development of common water resources; it compromises Bangladesh's lawful rights and entitlement to the international rivers that flow through its territory. The implications of the Indian River-Linking Project on the ecological and socio-economic well-being of downstream Bangladesh are simply too serious, distinct, and imminent to receive a high level of attention and scrutiny from the international community. It is incumbent upon India to appreciate the fact that the river system in the sub-continent is a physical and geographical unity and, as such, is indivisible. Any development project that artificially interrupts the physical unity and interdependence of the river system must ascertain and address the possible damage to the basin and its co-users. It is simply inadequate to assess a project with such far-reaching impacts based exclusively on notions of arbitrary (in the context of natural resource management) national borders.

The author is a full time academic in the Division of Law at Macquarie University, Sydney, Australia. (shawkat.alam@law.mq.edu.au


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