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.
