Transboundary Waters

Story Staff Reporter Photograph Prasad

In the past hundred years, the global population has tripled while demand for water has increased sevenfold. The signs of a looming water crisis are evident. Since water is essential to every aspect of life, this crisis affects everything – from health to human rights, the environment to the economy, poverty to politics, culture to conflict.

Just as water defies political boundaries and classification, the crisis is also well beyond the scope of any individual country or sector, and cannot be dealt with in isolation. Sustainable water resources development and management are major challenges of the immediate and long-term future. An increasing number of states are experiencing permanent water stress, yet in most cases, agreements, mechanisms and institutions to manage disputes over water resources are either absent or inadequate. Many longstanding water-related disputes still remain unresolved, and the growing demand for finite freshwater resources heightens the risk of future conflicts. The need for integrated, cooperative solutions is particularly urgent in the 263 river basins that are shared by two or more countries, and in which nearly half the territory and population of the world are located.

It is pertinent to encourage the realization that everyone stands to gain from cooperation over water. The essential steps include the establishment of relations among water experts and policy makers from the different riparian states and regions; the awareness of the public and local decision makers; the existence of mutually accepted and equitable agreements and treaties; and the setting up of joint institutions and mechanisms.

One of the critical aims of water management is to continually reconcile competing interests of all water users - individuals, corporations, and interest groups, administrative or sovereign entities. The management of water-related conflicts, confrontations, competitions, and cooperation is thus a part of water resources management in its broadest sense. This may range from overseeing peaceful cooperation between users of a resource to facilitating negotiation of disputes between sovereign states. The programme may be conceived with the idea that although shared water resources may be a source of conflict, their joint management should be strengthened and facilitated to promote cooperation between the users.

International law offers a series of means to resolve international disputes, both diplomatic (negotiations, consultation, good offices, mediation, fact-finding, inquiry, conciliation, and the use of joint bodies and institutions) and legal (arbitration and adjudication). Generally, water conflicts are settled through negotiations with an agreement as the final outcome.

Transboundary Scenario

Water, unlike most other natural resources, does not respect political boundaries. The natural flow of water, both on the Earth's surface and underground routinely crosses these boundaries. When two or more sovereign countries share a watercourse, which could be a river basin, lake, or aquifer, it is generally considered to be an international watercourse. Most discussion about international watercourses, however, refers to river basins.

Over 45 percent of the land surface of the world is covered by river basins that are shared by more than one country. Over 40 percent of the world’s population resides within internationally shared river basins. Over 75 percent of all countries, 145 in total, have within their boundaries shared river basins. There are 263 transboundary river basins. And 33 nations have over 95 percent of their territory within international river basins. While most transboundary river basins are shared between just two countries, there are many river basins where this number is much higher. There are 13 basins worldwide that are shared between 5 to 8 countries. Five river basins, the Congo, Niger, Nile, Rhine and Zambezi, are shared between 9 to 11 countries. The river that flows through the most countries is the Danube, which passes through the territory of 18 countries.

Great reservoirs of freshwater also move silently below our borders in underground aquifers. So far, 274 transboundary aquifers have been identified. They lie under 15 percent of the Earth's surface.

The history of international water treaties dates as far back as 2500 BC, when the two Sumerian city-states of Lagash and Umma crafted an agreement ending a water dispute along the Tigris River. The Food and Agriculture Organization of the United Nations has identified more than 3,600 treaties relating to international water resources dating from AD 805 to 1984. The majority of these treaties are concerned with some aspect of navigation. In the last century, more than 200 water-related treaties have been negotiated and signed.

International Law and Treaties

International law is sometimes defined as a system of principles and rules of general application dealing with the conduct of nations and of international organizations and with their relations inter se, as well as with some other persons, natural or juridical. However, international treaties have now replaced customary law as the primary source of international law. Compared with rules of customary law, international treaties are considered to have many advantages. They provide a clearer manifestation of the legal undertakings made by states; their norms are often more precise and more easily accessible. They are also able to deal with questions of a highly technical nature (such as freshwater quality and quantity standards, norms of water abstraction, permissible levels of discharges and emissions, and so on). Multilateral treaties, which are often called international conventions, are normally adopted by specially convened international conferences, usually under the auspices of the United Nations General Assembly or of UN specialized agencies.

Initiatives in sustainable management of world water

Since the 1970s a series of international meetings and conventions have provided milestones on the way to sustainable water resource management. The UN-sponsored Conference on Water at Mar del Plata, Argentina in 1977 was the first step in the direction of improving international cooperation and coordination in the management of global water resources. Recognition of the need for an international water policy organisation grew and intensified in the 1980s and early 1990s. These principles were endorsed in 1992 at conferences on water and the environment, held in Dublin and Rio, respectively leading to the widely accepted Dublin principles for managing water. These were ‘freshwater is a finite and vulnerable resource, essential to sustain life, development, and the environment; water development and management should be participatory, involving users, planners, and policy makers at all levels; women are central to providing, managing, and safeguarding water; and, water has an economic value in all its competing uses and should be recognized as an economic and social good’.

There is only one universal treaty dealing with the use of freshwater resources: the 1997 UN Convention on the Non-Navigational Uses of International Watercourses (1997 IWC Convention). So far twelve countries have become parties to the 1997 IWC Convention, and eight additional states have signed but not yet ratified it. To enter into force it needs to be ratified or approved by thirty-five states. Regardless of when and whether the Convention enters into force, it is clear that it will play a very important role in all relations involving watercourse states.

India abstained from signing the Convention as  Article 3, which deals with Watercourse Agreements, provides that 'an agreement may be entered into with respect to an entire international watercourse or any part thereof or a particular project, programme or use except in so far as the agreement adversely affects, to a significant extent, the use by one or more other watercourse States of the waters of the watercourse, without their express consent'. India believes that a Framework Convention should not be prescriptive but should leave states free to evolve and implement mutually agreeable terms in relation to specific international watercourses. Thus Article 3 fails adequately to reflect the principle of freedom, autonomy and the right of states to conclude international agreements without being fettered by the UN Framework Convention. Also,  Article 5 on Equitable and Reasonable Utilisation and Participation is not clear and unambiguous especially as the term ‘sustainable utilisation’ has been imposed on the principle of optimal utilisation without defining what the former implies in the given context. Then, Article 32 dealing with non-discrimination presupposes political and economic regional integration of states, as say within the European Union. Otherwise, prescribing national treatment for non-nationals claiming recompense for alleged transboundary injury will be unimplementable. Finally, Article 33 pertaining to the settlement of disputes mandates an element of compulsion in setting up fact-finding commissions. India believes that the parties should be left free to choose any acceptable procedure for securing an amicable settlement through mutual consent.

In Indian context some of the language and concepts embodied in the

Mahakali (India - Nepal) and Ganga (India - Bangladesh) Treaties bear resemblance to those found in the UN Convention. This is because these ideas and expressions were, in fact, drawn from the ongoing deliberations on the Draft Convention by the International Law Commission.

At the Stockholm Water Symposium in 2002 there was a rare degree of unanimity among organizations representing water managers and other stakeholders on four basic principles of ‘Water users must be involved in the governance of water resources; We must break now the link between economic growth and water degradation; Urban water services are crucial for urban stability and security; and, Policy, planning, and implementation must move towards integratedsolutions’.

International cooperation in Indian Context

India is drained by a number of international rivers those rise beyond its borders or flow into lower riparian countries. The co-sharers of these common rivers are Nepal, Bhutan, China, Myanmar, Bangladesh and Pakistan. India has been taking a lead in all these initiatives as an equal partner with capabilities to provide technical leadership in the area. The issue of international water relations arose in an acute form immediately after 1947 with the partitioning of the Indus river basin and what had earlier been a single irrigation system in Punjab. It was settled through the Indus Waters Treaty (1960) which allocated the entire flows of the three Eastern Rivers, the Sutlej, Beas and Ravi, to India except for domestic use, non-consumptive use and restricted agricultural use by Pakistan and that of the three Western Rivers, the Chenab, Jhelum and Indus, to Pakistan, less domestic use, non-consumptive uses and limited agricultural use by India. India also entered into project-specific agreements with other neighbours - Nepal and Bhutan, but these essentially do not constitute sharing arrangements. A treaty has been signed with Nepal on the Integrated

Development of Mahakali River including Sarda Barrage, Tanakpur Barrage and Pancheshwar project. Negotiations are on for the beneficial use of waters of many other rivers flowing in the Himalayan region through Nepal and India. The more recent Treaty on Ganga waters with Bangladesh (1996) prescribes a formula for sharing the lean season flows of the river at Farakka between the months of January and May every year. It also envisages similar agreements or understandings with regard to other common rivers. There are yet other rivers, which flow through other neighbouring countries like China, Bhutan and Myanmar before entering into India. In course of time, efforts are underway to reach agreements with these cobasin countries.

Bangladesh

Issues of sharing the Ganga, Brahmaputra, Meghna and 51 other common rivers have been in contention between the two countries over the past many decades. An Indo-Bangladesh Joint Rivers Commission (JRC) is functioning since 1972 with a view to maintain liaison in order to ensure the most effective joint effort in maximizing the benefits from common river systems. Actual sharing of the lean flows of the river Ganga became problematic in 1975 with the commissioning of the Farakka Barrage. A series of agreements were put in place until 1988. Thereafter, relations soured on this issue until a breakthrough was achieved with the signing of the Ganga/Ganges Waters Treaty by the Prime Ministers of India and Bangladesh on 12th December 1996 on the sharing of waters. The Treaty shall remain in force for a period of thirty years to be renewable by mutual consent.

The Treaty stipulates an ‘emergency’ situation when discharges fall below 50,000 cusecs, necessitating an immediate dialogue between the two countries to decide on sharing arrangements. Both India and Bangladesh have Teesta Barrages on either side of the border and plan to irrigate extensive commands whose full requirements cannot be met without lean season augmentation or integrated use of the waters of rivers adjoining the Teesta within the Brahmaputra system. Other Indo-Bangladesh issues pertain to water quality, shifting course of

Boundary Rivers, impact of anti erosion measures, exchange of hydrological and flood discharge data in real time and the tying up of flood embankments on common rivers. A joint Committee of Experts (JCE) under Secretary (WR) has been formed to workout long term resolution of Water Sharing of other seven rivers i.e. Teesta, Dharla, Dudhkumar, Manu, Khowai, Gomti and Muhuri. Cooperation has also been continued in transmission of flood forecasting and warning data to Bangladesh during monsoon.

Nepal

Hydro-power could be for Nepal what oil is to the Gulf. However, its currently assessed techno-economic potential of 42,000 MW needs a market which primarily lies in India. India would also benefit by storages in Nepal to moderate floods and expand irrigation in the Uttar Pradesh and Bihar plains. Earlier diversion schemes on the Sarada (Mahakali), Kosi and Gandak notwithstanding, Indo-Nepal water resource development for regional benefit has made limited progress on account of a variety of misperceptions and misgivings on both sides. The landmark Mahakali Treaty of 1996, which came into force in June 1997, heralds a new beginning. It is a good example of bilateral cooperation in joint water resource development. The Treaty enjoins India to ensure a flow of not less than 10 cumec (350 cusec) downstream of the Sarada barrage. Pancheshwar Multipurpose Project on river Mahakali known as Sarda in India is the centrepiece of the Treaty. The cost-benefit assessment and sharing principle is repeated verbatim in the understanding reached by Indo-Nepalese experts in 2001 on the Sapta Kosi project. A 269 meter high concrete/Rock fill dam on river Sapta Kosi is envisaged with underground power houses with an installed capacity of 3000 MW at 50 per cent load factor. In addition, a barrage on river Sapta Kosi (in Nepal) would be constructed about 8 km downstream of the High Dam to re-regulate the water released from the dam. Two canals namely, Eastern Chhatra Canal and Western Chhatra Canal, would be off-taking from the either bank from the barrage to provide water for irrigation both in Nepal and India. Navigation through Kosi up to Kursela and in the reservoir of Sapta Kosi dam is also under consideration during the detailed study. Flood forecasting and hydrological and other relevant data exchange represents another important area of cooperation. Nepal has 42 meteorological and hydrometric sites, which was put in operation since 1989. For qualitative improvement of flood forecasting Nepal agreed to transmit hydrological data from five key stations located on rivers Ganga, Kosi, Rapti, Bagmati and Mahananda twice a day. Nepal and India have also agreed to upgrade and modernise the network and increase the density and coverage of stations which will help better assessment and utilisation of water resources.

For dealing with the problems of inadvertent inundation caused by the construction of various works on rivers straddling the Indo-Nepal border, a Standing Committee on Inundation Problems (SCIP) between

India and Nepal was set up in 1986. This committee has now been replaced by the Joint Standing Technical Committee (JSTC), which would look into related matters of water resources development of mutual interest. Also, a Indo-Nepal Joint Standing Committee on Water Resources (JSCWR) headed by Water Resources Secretaries of both the countries is functioning with the mandate to act as an umbrella committee of all committees and groups.

Pakistan

The boundary between Pakistan and India has been drawn right across the Indus Basin, leaving Pakistan as the lower riparian. Moreover, two important irrigation head works, Madhopur on Ravi and Ferozepur on Sutlej, were left in the India. A dispute thus arose between two countries regarding the utilization of irrigation water from existing facilities. Negotiations held under the International Bank for Reconstruction and Development (World Bank), culminated in the signing of the historic Indus Waters Treaty in 1960. The Treaty apportioned the entire waters of the three eastern rivers, the

Sutlej, Beas and Ravi to India, except for domestic, non-consumptive and irrigation uses by Pakistan as specified. The waters of the three western rivers, Indus, Chenab and Jhelum, were allocated to Pakistan, less certain uses by India as specified. The Treaty has worked satisfactorily, despite strained Indo-Pakistan relations and two wars.

There is no quantitative limit on Indian uses from the western rivers for domestic and industrial purposes. Therefore India is entitled to formulate appropriate schemes of rural and urban water supply in the portion of Indus basin lying in its territory. The Treaty allows India specified withdrawals from Ranbir and Pratap Canals. It further allows the irrigation of about 13.4 lakh acres of cropped area from the three western rivers.

In accordance with the Treaty both India and Pakistan have each created a post of Commissioner for Indus Waters. The two Commissioners together constitute the Permanent Indus Commission whose purpose is to establish and maintain co-operative arrangements for the implementation of the Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers and to settle promptly any question arising between the Parties. The Commission is also required to undertake periodical inspection of the Rivers for ascertaining the facts connected with the various developments and works on the Rivers. The Commission has also to meet regularly at least once a year, alternately in India and Pakistan and to submit its report before the first of June of every year. In fulfillment of the obligations of Indus Waters Treaty, India has supplied the requisite data of 30 Projects on Western Rivers including Small Plants, Run-of-River Plants etc. to Pakistan. As per the provisions of the Indus Waters Treaty, flood flows of rivers Ravi, Sutlej, Beas, Jammu Tawi, Chenab and Jhelum were being transmitted to Pakistan through telegram since 1962. From the year 2006 onwards communication of flood flow information by telegram has been replaced by telephone. A control room is operated round the clock in the Indus Wing for the above purpose. No cost is being charged to Pakistan for communication of flood flow even though the Treaty provides for the same – it is purely a goodwill gesture from India in response to the request made by Pakistan on humanitarian ground.

With Bhakra Nangal, Pong, Pandoh and Ranjit Sagar reservoirs already completed, envisaged storage reservoirs for harnessing 33 MAF of

eastern rivers is available. Projects having about 7183 MW installed capacity have already been completed and projects having 4515 MW installed capacity are in different stages of construction. Since India has not built any Conservation Storage on Western Rivers, India can develop irrigation by withdrawals from river flow only within the restricted area of 2,70,000 acres over and above the area as on effective date. India could irrigate an area of 7,97,860 acres against permissible of 9,12,477 acres during the year 2007-08.

China

In the year 2002, the Government of India entered into an MOU with China for provision of hydrological information on Yaluzangbu/

Brahmaputra river in flood season. In accordance with the provisions contained in the MOU, the Chinese side provided hydrological information (water level, discharge and rainfall) from three stations, Nugesha, Yangcun and Nuxia located on river Yaluzangbu/ Brahmaputra from 1st June to 15th October every year, which was utilized in the formulation of flood forecasts. The MoU expired in 2007 and a MoU on Provision of Hydrological Information of the Brahmaputra / Yaluzangbu River in Flood Season by China to India with a validity of five years has been signed in June 2008. In pursuance, the Chinese side has started supplying the monsoon data for the three stations. Another MoU was signed during the visit of the Chinese Premier to India in April 2005 for supply of hydrological information of Sutlej (Langquin zangbu) from the Tsada station in flood season. A joint Expert Level Mechanism (ELM), led by the Joint Secretary level officers has been set up with its first meeting held in September 2007 at Beijing wherein the issues related to bilateral cooperation on exchange of hydrological information between the two countries were discussed. Following the second meeting of ELM on Trans-Border Rivers was held at New Delhi in April 2008 it has been agreed that the Mechanism shall meet once every year, alternatively in China and India.

Parechu Crisis

An artificial lake was formed in (June/July 2004) on river Parechu in Tibet (China) as a result of a landslide. The bursting of the lake would have caused havoc downstream in Himachal Pradesh to people and infrastructure including the Naptha Jhakri H.E. Project. The Indian Government kept a close watch and held discussions with Chinese authorities at Lhasa in September, 2004. The team discussed various possible measures to address the situation and agreed to take up further action through diplomatic channels. Subsequent to the visit to Lhasa, a technical team visited Beijing (China) in December 2004 to hold in depth discussion regarding blockade on river Parechu and establishment of additional hydrological stations on Langquin Zangbu (Sutlej) and Parlung Zangbo (tributary of Yaluzangbu i.e. Brahmaputra) and Zayu Qu (Lohit). In March, 2005 a delegation visited Beijing to discuss the measures to be taken on Parechu issue. China agreed to the possibility of controlled release of artificial lake water. However, before any action could be taken the landslide dam breached on 26th June 2005.

Bhutan

A scheme titled ‘Comprehensive Scheme for Establishment of Hydrometeorological and Flood Forecasting Network on rivers common to India and Bhutan’ is in operation. The network consists of 35 hydrometeorological/ meteorological stations located in Bhutan and being maintained by the Royal Government of Bhutan with funding from India. The data received from these stations are utilized in India for formulating flood forecasts. A Joint Expert Team (JET) consisting of officials from the Government of India and Royal Government of Bhutan continuously reviews the progress and other requirements of the scheme. A Joint Group of Experts (JGE) on Flood Management was

constituted between India and Bhutan to discuss and assess the probable causes and effects of the recurring floods and erosion in the southern foothills of Bhutan and adjoining plains in India and recommend to both Governments appropriate and mutually acceptable remedial measures. The first meeting of JGE was held in Bhutan in November 2004. Based on the discussions, a Joint Technical

Team (JTT) was set up which studied sources of sediment load, nature of slides and suggested further studies and preparation of maps. Further, as per the decision taken in the first meeting of JGE, a five member Indian team visited Tsatichu lake in 2006 (which was formed due to massive landslide occurred on the right bank of river Tsatichhu in 2003), where it was observed that the quantity of water in the lake at present is very small and the threat of flood to downstream areas, including Indian Territory is negligible. The second meeting of JGE was held in 2008 at New Delhi, where the JTT has been reconstituted, rivers/streams flowing from Bhutan into Assam identified joint visits proposed to the landslide dam sites.

Myanmar

A number of small streams rising in eastern Manipur drain into the Kubaw Valley and, like the larger Imphal/Manipur river, flow into Myanmar to drain into the Chindwin which falls into the Irrawaddy. India has small irrigation uses on the Manipur river and has developed the Loktak Hydro Project (105 MW). Although there appears to be little likelihood of any conflict with Myanmar here, there is scope for Indo-Myanmarese cooperation in jointly developing the hydro potential of the Chindwin to mutual benefit. The Chhimtuipui River (otherwise known as the Kaladan or Kolodyne) rises in Myanmar, then marks the Indo-Myanmar border for quite some distance before entering southern Mizoram and then finally re-entering Myanmar to empty into the sea near Sitwe (Akyab). The river is navigable in Myanmar from Paletwa, some 100 kms from the tip of Mizoram, to the sea which could act as an incentive for trade in the future.

Summing up

Managing water resources is a complicated process. Watercourses typically meet a variety of economic as well as ecosystem needs, although in many cases, not enough water is available to meet all of the identified needs. Transboundary waters transcending human-defined political and administrative boundaries pose one of the major water management problems. The potential for conflict appears to be highest where much of the land is either semiarid or arid, and most of the unexploited water resources are in international watercourses. International cooperation is required to ensure that the mutual benefits of a shared watercourse are maximized.

India is drained by a number of international rivers that rise beyond its borders or flow into lower riparian states. Since most of the storages in the north and north-eastern states are near the international borders, ‘water diplomacy’ for effective and optimal utilization of the water resources in the region is likely to play a key role in the economic development of the people of the region. The presence of internationally accepted principles offers common ground, which could serve as guidelines to promote sustainable water resources management throughout the region. Despite many challenges ahead there is every reason to hope that world will live in water peace.

Inputs from Theme Paper on Transboundary Waters, Central Water Commission, Ministry of Water Resources, 2009