An analysis of Ganges Water Agreement
Conflicts are not uncommon in transboundary issues. Every country wants to boost up its economy by utilizing the resources. The transboundary water conflict between India and Bangladesh has also been going on for a long period and due to some unprecedented steps, Bangladesh is toiling hard, most particularly the people of the Northern region often face challenging times. It is high time Bangladesh strode towards the most effective way forward to resolve the transboundary issues.
If we analysis the problems Bangladesh facing only because of the Fraakka Barrage & one-sided 1996 treaty it will be understood how intensely Bangladesh dug its own grave.
The shortage of water from the Ganges during the dry season disrupts public life in northern Bangladesh. As a result, Bangladesh has to face huge losses in agriculture, fisheries, forestry, industry, shipping, water supply, etc.
The direct loss is around 3 Billion US dollars. Professor M. I. Chowdhury and Syed Safiullah, a joint venture between the United Nations Department of the Environment and the University of Hamburg came up with important information on the 'Global Carbon Flow' research project, summary of the result of the 6-year survey says, sediment flow through the Padma river has decreased by about 20% (Compared to 1960), carbon emissions reduced by 30%, fertility of the land is declining due to the decrease of sediment flow, decreases in minerals and nutrients have reduced phytoplankton production in rivers and wetlands by 30%, as a consequence fish production has declined significantly. Rising sea levels due to climate change are working like a double-edged sword against Bangladesh.
Due to the rise of sea level, the coastal areas have been submerged, and added to it, is the gradual shifting of the plains which is called Subsidence, its rate is 5 mm per year. In addition, Bangladesh is facing various negative effects like desertification of large areas, the navigability of rivers, salinity of the soil, depletion of water level, and so on.
Whenever any dispute arises on the river Padma, the principle of equitable and reasonable utilization of water sharing is popped up. The basis of this equitable and reasonable utilization of water sharing denotes, the country which is more dependent on the river, availability of water must be considerably more there. Moreover, the equitable and reasonable water-sharing principle was mostly reflected in the 1977 agreement but not at all reflected in the 1996 treaty considering the dependency of water due to some vague, complicated, and one-sided provisions.
Annexure-II of the 1996 Gangs water treaty, 1996 provides an indicative schedule of the sharing arrangement based on 40 years (1949-1988) 10-day period average availability of water at Farakka. In comparison with the 1977 agreement, Bangladesh's share decreased about 8% under the 1996 treaty. It is worth noting that, for the three critical non-monsoon months (March 1-May 31), the share of Bangladesh has decreased from about 61% under the 1977 agreement to about 50% under the 1996 treaty.
Unlike Article II of the 1977 agreement, the 1996 treaty does not provide any minimum guaranteed flow for (downstream) Bangladesh if the flow at Farakka reduces substantially. Article 11(ii) states, "Every effort would be given by the upper riparian to protect flows of water at Farakka as in the 40-years average availability as mentioned above".
However, the treaty did not elaborate and define the term 'Every effort'. Thus if the flow at Farakka reduces substantially due to upstream abstraction, India is not under any obligation to protect the flow. The 1996 Gages treaty does not indicate the entitlement in terms of the absolute volume of water for each country on a day-to-day basis.
The 1996 treaty does not provide clear dispute resolution mechanisms. Article VIII states that, if the joint committee fails to resolve conflict arising out of the implementation of the treaty it should be referred to the Indo-Bangladesh Joint River Commission. If the difference or dispute remains unresolved, it shall be referred to the two Governments, which shall meet urgently at the appropriate level to resolve it by mutual discussions. What level of Govt. does it refer to and what is the time frame for dispute settlement that is not specified in the treaty. In addition, the 1996 treaty does not bind any party to resolve the dispute if disagreements persist.
Unlike the 1977 Agreement, the 1996 treaty does not include any arrangement for a long-term solution of the dry season water scarcity i.e. increases of the Ganges flow. 1996 treaty does not offer any authority or responsibility to the Indo-Bangladesh JRC for implementing the treaty. The 1996 treaty approves the theory of equitable allocation and obligation not to cause significant harm of international law through the inclusion of the principles of equity, fairness, and no harm in Article II, IX, and X. It also does not cover the flood period. This 1996 treaty is supposed to be ended in 2025.
Considering this context, Bangladesh should not stride towards any agreement or treaty with India on the river Teesta. And in that note, Bangladesh should not renew the Ganges treaty further after 2025. If the agreement is weak, partial, non-obligatory, and one-sided as such, then Bangladesh should not move forward to sign further treaties.
In the dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar, Bangladesh played a smart role. The issue was not settled through an agreement or treaty, rather it went up to the ITLOS (International Tribunal for the Law of the Sea). The judgment of this case set certain legal precedents that may be more easily applied to bilateral disputes; implications nevertheless impinge on multilateral claims as well. This ITLOS judgment provides a pathway to an independent and peaceful resolution to the potentially exclusive and escalating tensions in the seas. Simply put, ITLOS is an independent and diverse body of 21 judges who are experts in maritime law.
The United Nations Convention on the Law of the Sea (UNCLOS) serves as the underlying and most pertinent body of legislature that is most applicable in maritime dispute settlement. And most importantly the transboundary water resource management principles set out by the UN transboundary water convention 1997- the principle of limited territorial sovereignty, equitable and reasonable utilization, an obligation not to cause any significant harm, the principle of notification, negotiation, consultation, principles of cooperation and information exchange, peaceful settlement of disputes must be taken into account.
So, in a nutshell, Bangladesh should deal these transboundary issues with India through UN intervention in a structural way so that both the countries can come up with an effective and dynamic solution and the miseries of people of Northern Bangladesh mitigates.
The writer is a student of Law,
North South University (NSU)