Abstract
Planned measures on shared rivers and lakes have long been a source of enormous tension between riparian states.1 The environmental dimensions of such measures are also recognized in comparatively recent reports and documents. The World Commission on Dams, in its Report of 2000, observed that large dams and diversion projects can lead to the loss of forests and wildlife habitat, aquatic biodiversity, and can affect downstream flood plains, wetlands, riverine, estuarine, and adjacent marine ecosystem.2 The Commission therefore underscored the necessity of “identifying the legitimate claims and entitlement” involved in such projects.3
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References
For detail, see, UN ECE: 1952, Legal Aspects of Hydro-electric Development of Rivers and Lakes of Common Interests, E/ECE/136. See also the report of the International Law Commission titled “Legal problem relating to the utilization and use of international rivers” in Yearbook ofILC, 1974, II(2), 33–357. For economic aspects of those tensions see, Smith, H., A.: 1931, The Economic Uses ofInternational Rivers, King, London.
World Commission on Dams: 2000, Dams and Development: A New Framework for Decision-making, the Report of the World Commission on Dams, Executive Summary, p. xxxiii.
Ibid.
See in this regard, Shine, C. and Klemm, C., D.: 1999, Wetlands, Water and the Law: Using Law to Advance Wetland Conservation and Wise Use, IUCN, Gland, Switzerland.
It may be mentioned here that Bangladesh and India have yet to resolve their disputes on the utilization of other major rivers. A Joint Committee of Experts of the two States, at its meetings in 1986, underscored the immediate need for sharing of at least nine common rivers namely the Ganges, the Teesta, the Muhuri, the Manu, the Gumti, the Khowai, the Brahmaputra, the Dharla and the Dudh Kumar. Among them, no substantive progress has yet been achieved in reaching arrangements for sharing of the last seven rivers. See, in this regard, Islam, M. N.: 1999, Equitable Sharing of The Water ofthe Ganges, Applicable Procedural Principle and Rules Under International Law and Their Adequacy, Unpublished PhD thesis, School of Oriental and African Studies, University of London, 244–249
Rangachari, R, and R. R. Iyer: 1993, Indo-Bangladesh talks on the Ganga waters issue. In: Verghese, B.G., and R.R. Iyer, (Eds.), Harnessing the Eastern Himalayan Rivers,Regional Co-operation in South Asia, Konark Publishers, New Delhi. India’s recent plan to inter-link the international rivers including the Ganges and Brahmaputra to withdraw their water to its Southern States have been seriously protested by Bangladesh. See in this regard, Letter to Indian CJ for reviewing river-linking court order (www. thedailystar.net), 12/09/03.
Islam, M. N.: 1999, Ibid., 256–260. See also, Sands, P. 1997, Bangladesh-India, Treaty on sharing of the Ganges Waters at Farakka, Introductory note, International Law Material 36, 519–521.
Rogers, P., Lydon, P. and Seckler, D.: 1989, Eastern Waters Study: Report to Congress, ISPAN, Arlington, Virginia, USA, p.28 quoted in Crow, B. and Lindquist, A.: 1990, Development of the Rivers Ganges and Brahmaputra: the difficulty of negotiating a new line, (DPP working paper No 19), The British Open University, 19.
The Farakka Barrage Project was completed in 1972 for diverting a major portion of the dry season flows of the Ganges to the Bhagirathi-Hoogly distributary to improve the condition of the Calcutta (now Kolkata) Port of India.
Government of Bangladesh: 1976, White Paper on the Ganges Water Dispute. A brief version of the above document is Government of Bangladesh: 1976, Deadlock on the Ganges.
Government of India, The Farakka Barrage, undated. This Indian document contains counter-arguments to Bangladesh’s claims made in the White Paper (ibid.) dated 11 September 1976, and it was distributed to diplomatic missions and delegates to the United Nations in September/ October of 1976 (see in this regard, Crow, B., Lindquist, A. and Wilson, D.: 1995, Sharing the Ganges: The politics and technology of river development, University Press Ltd., Dhaka, p.124). Therefore, it was published probably in late September or early October of 1976.
IBRD/IDA: 1972, Bangladesh, Land and Water Resources Sector Study, Vol. 7, Technical Report No. 22, p.4. Technical Report No. 20 (Overall water resources potential) and 22 (International water aspects) of Volume 7 concern transboundary aspects of water resources utilisation in Bangladesh.
IBRD/IDA: 1972, ibid, Technical Report No. 22, p. 10, para. 4.01; Verghese, B.G.: 1990, Waters ofHope, Oxford and IBH, New Delhi, p.79, observes that ‘Bangladesh is short of resources and all donor nations and agencies more or less insist on international agreement on water sharing before they are willing to commit themselves to substantial investment’.
India, Reported failure of the Government to complete Farakka Barrage, Lok Sabha Debates, 14/8/72, Ser. 5, Vol.18, Col. 322.
Government of Bangladesh: 1976, White Paper on the Ganges Water Dispute, 6–10.
For a detail analysis of Bangladesh’s claims and India’s counter claims concerning effects of the Farakka Projects in Bangladesh, see, Crow, B., Lindquist, A. and Wilson, D.: 1995, Sharing the Ganges: The politics and technology of river development, University Press Ltd., Dhaka, 124–159. Crow and his co-author’s study was based on White Paper (ibid.) of Bangladesh, The Farakka Barrage (ibid.) of India and also on a large four-volume work entitled Special Studies. The Special Studies was produced jointly by Bangladesh Water Development Board (BWDB) and International Engineering Company (IECO) (a San Francisco based US engineering firm) and it was published by the Bangladesh Government in September 1976.
See also, Begum, K.: 1987, Tension Over the Farakka Barrage, University Press Ltd., Dhaka, 128–156.
India, (1976) The Farakka Barrage, col. 9. For detail, see cols. 9–17.
Bangladesh, (1976), White Paper on the Ganges water dispute, 19–24.
For text of the Helsinki Rules, see International Law Association (ILA): 1966, Report of the 52nd Conference, Helsinki, 484–532. In this regard, see also the study of Asian-African Legal Consultative Committee in AALCC, 1972, Report of the 13th Session held in Lagos, 69–92.
For the text of the Treaty, see International Law Materials 36, 523 (1997).
See in this regard, Para 9, commentary to Article 5, Report of the ILC on the work of its 46th session in UN, GAOR, 49th session, Supplement No. 10, pp.221–222, UN. Doc. A/49/10 (1994) [hereinafter 1994 ILC Report].
As regards environmental flows, an International Conference on Ramsar Convention provides that “Water system require water (the right quantity in the right place) to function properly and to secure a constant and quality supply for other use.... Human use can only be satisfied in the long-run by first ensuring the “environmental allocation” that the system requires to continue to perform.” See, The Bureau of the Convention on Wetlands, The key role ofwetlands in addressing the global water crisis, Paper communicated to the Contracting Parties by diplomatic notification on 1998 and presented to the delegate at the International Conference in Paris, 19 March 1998, 4–5.
See Article II(i) and II(ii) of the 1996 Treaty. See also Annex 1 and Annex 11 to the 1996 treaty.
Annex I to the 1996 Treaty.
For detail, see Islam, supra note 5, 265–266. 24 Professor Nishat is currently the Country Representative of the World Conservation Union (IUCN) Bangladesh. The interview was taken in March 1999 during the completion of this author’s PhD thesis. For detail, see Islam, n. 5, p.286.
Islam, ibid, pp.222–223.
In 1980 dry season both Bangladesh and India complaint about receiving less water than their stipulated share in the 1977 Agreement. During the implementation of subsequent MOUs, the Ganges flows at Farakka decreased to such an extent that India and Bangladesh had to enter into agreement to share ‘exceptionally low flow’. See ibid, pp.231–232.
Banerjee, R., Indo-Bangla accord, defying the current, India Today, 15/1/97, 110–111. See also, Government grilled on Ganga Waters Treaty, Hindustan Times, 9/2/97.
Reported by Subhir Voumik, BBC correspondent in India, broadcasted on 1/9/96 by BBC World Service, Bengali Section. The BBC report is reproduced in the Aajker Kaghaz, 2/9/96, BBC-er protebedon, Gangar jol niyey Bangladesh-Bharot birodh mitiey feltey Dillir upor Paschim Banglar chap’ [BBC Report, West Bengal put pressure on Delhi to resolve the Ganges water dispute between Bangladesh and India]. The Telegraph, 12/12/96, ‘Bangla bargain pays off, treaty today’ reported that unrestricted withdrawal of the Ganges water by Uttar Pradesh and Bihar was liable for lower flows at Farakka. It also reported that the West Bengal Chief Minister asked the Indian Prime Minister `to ban further construction of dams in the upper catchments in Uttar Pradesh and Bihar.
BBC Report, ibid.
See above section 2.2.
The relevant provision of Article II(ii) provides that India ‘would’ make ’every effort’ to protect the flows of water at Farakka.
Abbas A.T, B.M.: 1982, The Ganges Water Dispute, 115. Mr Abbas A.T. commented: `This is not a workable proposition as water would not wait for such consultation and would be lost by the time any consultation could be held.
Islam, n. 4, pp.231–232.
Rogers, P., Lydon, P. and Seckler, D.: 1989, Eastern Waters Study: Report to Congress, ISPAN, Arlington, Virginia, USA, p.28 quoted in Crow, B. and Lindquist, A.: 1990, Development of the Rivers Ganges and Brahmaputra: the difficulty of negotiating a new line, (DPP working paper No 19), The British Open University, p.19.
The title of the convention is ‘Convention on the Law of the Non-navigational Uses of International Watercourses. ’ See the text of the 1997 Convention in International Law Materials 36, 700 (1997).
MaCaffrey, S.C., and Sinjela, M.: 1998, The 1997 United Nations Convention on International Watercourses, American Journal ofInternational Law 92, 106.
UN, GAOR, 51st session, 99th plenary meeting, 21/5/97, p.7–8.
For a discussion on this point, see Part 10.4.6 below.
UN Press Release, GA/9248, 21/5/97, ‘General Assembly adopted Convention on the Law of Non-navigational Uses of International Watercourses’.
Article 3 (1) and 3(2) of the 1997 Convention.
McCaffrey, S.C. and Rosenstock, R.: 1996, The International Law Commission’s draft articles on international watercourses, Review ofEuropean Community & International Environmental Law 5, 91 described the general principles as the ‘cornerstone’ of the Convention.
During the elaboration of 1997 Convention, the Chairman of the Working Group took note of the ‘Statements of Understanding pertaining to certain articles of the Convention’. These Statements were included in the Report of the Sixth Committee Working Group to the General Assembly. McCaffrey, S.C. and Sinjela, M.: 1998, supra note 28, p. 102, described these Statements as travaux preparatoires of the 1997 Convention.
These commentaries appear in 1994 ILC Report, supra note 19. The legitimacy of invoking ILC commentaries is established by the Sixth Committee Working Group during its elaboration of the Convention.
Para 1, commentary to Article 5, 1994 ILC Report, supra note 19, p.218.
The Chairman of the Drafting Committee of the Working Group (in UN, GAOR, 51st Session, Sixth Committee, Summary record of the 24th meeting, 17/10/96, p. 4, para. 14,) recalled that the inclusion of the principle of sustainable development and the protection of the ecosystem in the Convention was proposed ’in order to bring the draft articles more fully into line with contemporary international environmental law . For the summary records of the Sixth Committee Working Group’s 15th to 20th meetings on elaboration of Article 5–10 during the 51st session of the UN General Assembly, see UN Docs. A/C.6/51/SR.15–20.
Commentary to Article 6, 1994 ILC Report, supra note 19, p.232.
Utton, A.E.: 1996, Which rule should prevail in international water disputes: that of reasonableness or that of no-harm, Natural Resources Journal 36, 641.
Para 2, commentary to Article 7, 1994 ILC Report, supra note 19, p.236.
The expression ‘significant harm’ was preferred by the ILC in its draft articles of 1994, although in the 1991 draft articles, it was ‘appreciable harm’. The Special Rapporteur of the ILC, Mr. Rosenstock, while sitting as an expert consultant during the elaboration of the Watercourse Convention by the Working Group, explained that the change from appreciable to significant was made only to avoid the possibility that in addition to substantial harm, trivial harms could also be measured by increased scientific and technological capacities and therefore may be confused with the term ‘appreciable’ meaning capable of being measured. He concluded: “As the Commission’s records made abundantly clear, the change from ‘appreciable’ to ‘significant’ had not been intended to alter the thresholds, but to avoid circumstances in which the threshold could be lowered to a clearly de minis level”. See, UN, GAOR, 51st Session, Sixth Committee, summary record of the 16th meeting, para. 35.
Para 1 of the commentary to Article 7, 1994 ILC Report, supra note 19, p.236.
Ibid., p.244.
Para. 4 of the commentary to Article 11, 1994 ILC Report, supra note 19, p.260.
Para 3 of the commentary to Article 11, ibid. pp.259–260.
McCaffrey, S.C., Second report, YILC, (1986), II(2), p.139, para 188. In his next report, the Special Rapporteur observed that ‘the very generality and elasticity of the equitable utilization principle requires that it be complemented by a set of procedural rules for its implementation. Without such rules, a State would often discover the limit of its rights only by depriving another State of its equitable share-probably without intending to do so’. For detail, see McCaffrey, S.C., Third Report, YILC, (1987), II(1), pp.22–23, paras. 32–35.
Ibid, pp.22–23, para. 33.
Ibid.
Para. 21 of the Commentary to Article 7, 1994 ILC Report, supra note 19, p.244.
Rosenstock, R., the Special Repporteur of ILC, even proposed mandatory arbitration and judicial settlement of watercourse disputes. See Yearbook of International Law Commission 1994 (I), p.40.
Para 2 of the commentary to Article 33, 1994 ILC Report, supra note 19, p.323.
Para 4, ibid., p.324.
UN, GAOR, 51st Session, Sixth Committee, summary record of the 21st meeting, para 6 and 44.•
McCaffrey, S.C. and Sinjela, M., supra note 28, p.104.
Commentary, 1994 ILC Report, supra note 19, p.280
Ibid, p.282
The Chairman of the Drafting Committee of the Working Group (in UN, GAOR, 51st Session, Sixth Committee, Summary record of the 24th meeting, 17/10/96, p.4, para. 14,) recalled that inclusion of the principle of sustainable development and protection of ecosystem in the Convention was proposed ‘in order to bring the draft articles more fully into line with contemporary international environmental law’. For the summary records of the Sixth Committee Working Group’s 15th to 20th meetings on elaboration of Article 5–10 during the 51st session of the UN General Assembly, see UN Docs. A/C.6/51/SR.15–20.
For detail, See, UN, GAOR, 51st Session, Sixth Committee, summary record of the 16th meeting, para. 35.
See, in this regard, the discussion on the 1974 Joint Declaration and the 1977 Ganges Agreement in Islam, (1999), n.5, 154–157, 213–219.
Ibid, pp.262–271.
McCaffrey, S.C. and Sinjela, M., 1998, The 1997 United Nations Convention on International Watercourses, American Journal ofInternational Law 92, 106.
The ILC was established in 1946, under Article 13, para. 1(a) of the UN Charter, to promote ’progressive development’ and ‘codification’ of international law. On International Law Commission, see Sinclair, (1987), The International Law Commission.
As Article 15 of the ILC Statute (quoted in Harris, 1998, Cases and materials on international law, 66) provides, ’progressive development’ of international law means ‘the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States’, and ‘codification’ means ‘the more precise formulation and systemization of rules of international law in fields where there has already been extensive State practice, precedent and doctrine’.
For example, North Sea Continental Self cases, IJC: 1969, International Court ofJustice Reports, 37–41; Military and Paramilitary Activities case, ICJ Reports, (1986), 194. On multi-lateral treaties declaratory or constitutive of customary law, see, Baxter, R.R.: 1970, Treaties and Custom, Recueil Des Cours 129(1), 37–74.
Para 1 of the commentary to Article 5, 1994 ILC Report, supra note 19, p.218.
Para 10, ibid., p.222.
Paras 3–7 of the commentary to Article 7, ibid., pp.236–239.
UN, GAOR, 51st Session, 99th plenary meeting, 21/5/97, p.4.
See, UN, GAOR, 51st Session, 99th plenary meeting, 21/5/97, pp. l –12. Article 7 was criticised due to its failure to explicate an appropriate relationship with Article 5 (Czech, ibid., p. 6); for undermining equitable utilization, (Slovakia, ibid., p.7); for putting onerous burden on upper riparian States (Ethiopia, ibid., p.9). On the other hand, Pakistan and Egypt (ibid., pp.5 and 11) observed that the obligation of no-harm should have been more stringent.
Para 1 of the commentary to Article 9, 1994 ILC Report, supra note 19, p.250.
Para 2 of the commentary to Article 11, ibid., p.259.
Para 6 of the commentary to Article 12, ibid., p.262.
Para 2 of the commentary to Article 17, ibid., pp.274–275.
Para 1 of the commentary to Article 33, ibid., p.323.
Para 4, ibid., p.324.
1994 ILC Report, supra note 19, p.280.
Schwaback, A.: 1998, The United Nations Convention on the law of non-navigational users of international watercourses, customary international law, and interests of developing upper riparians, Texas International Law Journal 33, 258
quoted in Eckstein, G.E.: 2002, Development of international water law and the UN Watercourse Convention. In:A. Turton and R. Henwood (eds.) Hydropolitics in the Developing World: A Southern African Perspective, Center for International Political Studies (CIPS), University of Pretoria, South Africa, p.86.
Eckstein, Ibid, p.90.
Shine, C, and Klemm, C.D: 1999, Wetlands, Water and the Law, Using law to advance wetland conservation and wise use, IUCN, Gland, Switzerland, p.4.
Ibid, p.38.
Ibid.
Ibid, pp.36–37.
IUCN Commission on Environmental Law (2000), Draft International Covenant on Environment and Development, Second Edition, Updated Text, IUCN, Gland, Switzerland and Cambridge, U.K., p.68.
See for detail, 1994 ILC Report, supra note 19, p.285–288.
Shine and Klemm, supra note 87, p.191.
See in this regard, Frederiksen, H., D., Berkoff, J. and Barber, W.: 1993, Water Resources Management in Asia, World Bank, Washington, D.C., quoted in Postel, S.: 1997, Changing the course of transboundary water management, Natural Resources Forum 21, 85. Adel, M.M.: 2001, Effect on water resources form upstream water diversion in the Ganga Basin, Journal of Environmental Quality 30, 356–368.
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Islam, M.N. (2004). Environmental Impacts of the Ganges Water Diversion and its International Legal Aspects. In: Mirza, M.M.Q. (eds) The Ganges Water Diversion: Environmental Effects and Implications. Water Science and Technology Library, vol 49. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-2792-5_10
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