Transboundary cooperation key to enforcing rivers’ legal rights in Bangladesh

In June 2019, the Bangladesh High Court granted its rivers the status and rights of a living entity, becoming the fourth country after New Zealand, India and Colombia to do so, and the first to extend the declaration to every river within its territory. The decision was welcomed by river rights groups, environmentalists, experts and the National River Conservation Commission of Bangladesh as an important move against the widespread encroachment and pollution, choking hundreds of rivers crisscrossing Bangladesh.

Environmentalists and river activists in India, the upstream riparian to 54 out of 57 transboundary rivers of Bangladesh, took notice. Two years ago, in 2017, the high court of Uttarakhand had declared Ganges and Yamuna rivers as living human entities and conferred upon them the same legal status and rights as people. However, the declaration was challenged by the state government of Uttarakhand and the central government of India in the Supreme Court on the grounds that it was too impractical to implement and could cause numerous legal complications. Months later, the Supreme Court of India scrapped the declaration. Today, as crisis after crisis hits India's rivers, the need to declare them as living entities and grant them legal rights is increasingly felt, but no such move is in sight. In this context, the decision of Bangladesh, a smaller, less powerful and downstream neighbour to India, is both bold and progressive.

However, legal rights are only as impactful as their enforcement. The Bangladesh High Court has been more elaborate in its declaration, outlining specific instructions and punitive measures for dealing with river encroachment. For example, river encroachers would not be allowed to contest elections and borrow bank loans; their action against the river would be considered criminal and they would be shamed in public. Unlike the hesitant governments in India, Bangladeshi government has been largely supportive—in the past six months, it has cleared 4,000 illegal structures along riverbanks in and around Dhaka alone, recovering 77 ha of land in the process. Unlike Indians, Bangladeshis are bound together by the one Ganges-Brahmaputra-Meghna (GBM) river basin, and Bangladeshis have been acutely aware of the centrality of rivers to their economy and society for long now, hence their motivation towards restoring and protecting their rivers is also comparatively higher. All these factors indicate that Bangladesh is off to a more promising start than India in enforcing the legal rights of its rivers.

And yet, challenges remain. While most of them are domestic—those of legal scope and legislation, political and social consensus, stakeholder involvement, economic policies, administrative reforms, and adequate funding, to begin with—the transboundary ones have not been fully considered. This is especially important because 91.4 percent of Bangladesh's total renewable water resources originate outside its borders, mostly from India. India is not only upstream, but it is also more populated, industrialised and powerful than Bangladesh. As a result, India's actions upstream on the GBM basin directly affect the flow, quality and overall health of rivers in Bangladesh. By extension, India's actions also promise to play an important role in determining how effective the recent declaration would be.

As of now, the impact of India's actions on the declaration does not promise to be helpful. Take for instance the Ganges, the second largest river shared by India and Bangladesh. The Ganges is declared a living entity in Bangladesh, but not in India. However, almost 90 percent of Ganges' course lies in Indian territory, effectively rendering only 10 percent of the river as "living". Upstream in India, the Ganges endures the entry of 500 million litres of industrial waste and 1.5 billion litres of untreated sewage each day. Just before the Ganges enters Bangladesh, the Farakka Barrage diverts an average discharge of 1,046 cumecs (9 percent of the total annual average discharge) to the Hooghly river, which flushes the port of Kolkata and keeps it from silting. The annual flow of the Ganges is highly variable, and western Bangladesh feels the pinch of the diversion at Farakka particularly during the lean season when the flow diminishes by as much as 90 percent. Factor in river pollution, encroachment, high rate of abstraction and effects of climate change within Bangladesh itself, and it seems unlikely that Bangladesh would be able to enforce its declaration and uphold Ganges' legal rights effectively. There is still a possibility that this could change; India and Bangladesh are bound by the Ganges Treaty of 1996 which is due to be revised in the year 2026, and with the requisite scientific studies, civil society pressure and political will, the treaty can be revised to create, on both sides of the border, conditions that are conducive to enforcing legal rights of not just the Bangladeshi portion, but the entire course of the Ganges river.

This would not be the case with other transboundary rivers. While they (and the Ganges) are technically under the purview of the Indo-Bangladeshi Joint Rivers Commission, experience over decades has proven the limited functioning, impact and foresight of the institution. Ganges is the only river on which a treaty has been signed—the draft Teesta agreement has been gathering dust for almost eight years now, and there is no treaty, draft or otherwise, proposing any arrangement to share the Brahmaputra, Meghna and the rest. Thus, enforcing legal rights of the remaining 56 transboundary rivers seems even more difficult for Bangladesh.

Bangladesh will face a number of political, administrative, social, economic and environmental hurdles while implementing the decision at the domestic level as well. Despite being daunting, they are well within Bangladesh's control. However, it can do little about the challenges posed by a stronger upper riparian like India who is not as motivated to jointly conserve and protect transboundary rivers, despite its beneficial relationship with the downstream riparian.

The only way Bangladesh can mitigate the impact on its forward-looking decision is by engaging India assertively and steadfastly in meaningful transboundary cooperation. For this, it must push for comprehensive treaties promoting joint efforts for all-round and sustainable development of the basin, stimulate and bolster multi-track diplomacy, and leverage the geopolitical realities of South Asia and beyond to strengthen its bargaining power. It is only with India on board, and a fair, efficient and sustainable framework of joint river basin governance in place, that Bangladesh has a realistic chance of effectively enforcing the legal rights it has granted to its rivers. The sooner Bangladesh acts on this reality, the more effective the implementation of its decision will be.

The Marathi version of this article was first published in Observer Research Foundation (ORF) Marathi.

Gauri Noolkar-Oak is a transboundary water conflicts researcher who has studied river basins in the Middle East, Southeast Asia and South Asia. Her Twitter handle is @curiousriparian.