Water Rights of Bangladesh: International Legal Perspective

Bangladesh is a riverine country with mighty rivers, Padma, Meghna, Brahmaputra, Jamuna and many other rivers, big and small flowing through it. The country is crisscrossed by mighty big rivers and their tributaries. Almost all of the major rivers are transboundary rivers. Sustenance, life and living of the people are dependent on these rivers. Right in the water flows of these rivers is of crucial importance for Bangladesh.

Under International Law of Natural Resources, all countries situated on the river basin, upper riparian or lower riparian are entitled to the water of the rivers flowing through the territories of more than one State. The International law of Natural Resources, forbade the obstruction or diversion of flow of water to the disadvantage of other co-riparian State/s. Customary international law on fresh water resources provided for equitable utilization of water bodies of an international character. Madrid Declaration of 1911, on the regimes of rivers /lakes, contiguous or successive, enjoins that water courses of an international character could not be altered by one State without the consent of the other State. Other international laws in the area of use of international water bodies also state in crystal clear terms the rights of the co-riparian states, which are as follows:

Article 2 of the Declaration of Montevideo, 1933, stipulates that no State may, without the consent of the other co-riparian State, introduce into the watercourses of an international character for agricultural or industrial exploitation of their waters, any alterations which might prove injurious to other international State.
Article 4 of Helsinkii Rules, 1996, adopted by the International Law Association insists that each basin State is entitled within its territory, to a reasonable and equitable share in the beneficial use of the waters of an international drainage basin.

Recognition of the rights of co-riparian States culminated through adoption of UN Convention by the UN General Assembly on May,21.1997: UN Convention on the Law of Non-navigational Watercourses adopted by the General Assembly in 1997 came into force in 1914 after ratification by required number of (36) states. It is now, the international law to be accepted by all the UN member States. Provision for equitable and reasonable utilization of international watercourse is enshrined in Article 5 of the Convention. It requires that Member Sates sharing an international watercourse with other states, utilize the watercourse within its territory in a manner that is equitable and reasonable vis-vis the other States sharing it.

Water Rights of Bangladesh has been very adversely affected by the upstream withdrawal of water of Ganga (at Farakka) and Teesta. It has caused serious scarcity of water during dry season with very negative impact on the life and living of the people dependent on the river system for their sustenance. Water availability now 15,000 Cusec in Padma during dry season as compared to 55,000-65,000 cusec normal average before pre Farakka time. Water availability of Teesta during dry season only 500 cusecs in place of normal average 4,500- 5000 cusec before upstream withdrawal by barrage.

It is crystal clear from the above facts that water availability in both the rivers, Padma and Teesta is extremely low. Most unfortunately, over and above this, the state Government of West Bengal has started project for diversion of water flow of Teesta by digging two channels, which will further deteriorate the existing precarious water availability situation. This is stark violation of Customary, Declaratory international law on share and use of waterflows of international rivers. And most regrettably, it is violation of the UN Convention on International Law regarding equitable use and sharing of water courses by the co-riparian States adopted by UN General Assembly in 1997, and effective since from 17 August, 2014 as mentioned above. The Convention require that a State sharing international water course with other States utilize the water course in its territory in a manner that is equitable and reasonable vis-vis the other State sharing it.

Farakka Barrage creating obstruction in natural flow of Ganges water and Teesta Barrage, obstructing natural water flow of river, swell, at upstream, have very adversely affected water availability in Bangladesh, and the obstruction so created is a clear violation of International Law of Natural Resources, and breach of UN Convention on Non-Navigational Water, in force since 17 August, 1914. Of late, the decision of West Bengal Government to dig two channels for further diversion of the Teesta water flow will accentuate this violation of UN Convention.

National Governments are committed under international law and UN Conventions. The question is whether West Bengal Government has right to take decision on international water flow in violation of UN Convention. Bangladesh has taken up the matter with the national Government of India. We are waiting response, and expect to get response and to have bi-lateral meeting on this crucial issue. We would unequivocally voice our claim and demand our equitable rights as a co-riparian State of international rivers, which is life- and-death issue for us.

With regard to Teesta two serious violation are involved, firstly, upstream withdrawal of water by Teesta Barrage which affected very adversely water availability in dry season, having far reaching negative impact on agriculture, fisheries, life and livings of the people of the river basin and adjoining area. Now, construction of two channels by West Bengal Government, and further diversion of water flow from Teesta River, would ring death toll to the existence of water flows of river Teesta in dry season, availability of any water at all. This utter deprivation of rightful share in water flow of Teesta of a co-riparian State, Bangladesh, is not at all acceptable and justified under international law.

We will explore all possible avenues, bilateral discussions, mediation by or intervention by relevant international forums for resolving the issue and obtaining our due share in the water flow as a co-riparian State. Through discussions and respect for equitable rights of all States under international law, all problems regarding sharing of water might be solved. In Europe, sharing of water of international rivers, flowing through more than one State has aptly been resolved, of which the river Danube is a glaring example. There is no reason why sharing of water of river of international character cannot be resolved in the subcontinent.

Sharing of water of Sindhu (Indus) river was accomplished between India and Pakistan on the principles of equity and recognition of the right of each country in the water of the Indus River. Indus Barrage Project comprise important component of raising the banks of Indus River to hold more water as well as to prevent flood through overflowing of the river banks. During Pakistani Regime, talks of Ganges Barrage in a likewise project was on the table but due to indifference to the interest of the then East Pakistan no step was taken to materialize the much-required Ganges Barrage project. Instead, upstream withdrawal of water of Ganges at Farraka started by India through construction and commissioning of Barrage at that point. After Liberation of Bangladesh.

Joint River Commission was set up by India and Bangladesh for monitoring the situation of water availability and sharing of water through agreement but no permanent agreement could be reached and the quantum of water to be released varied during different period. At one stage, as per agreement (1977), 40,000 cusecs of water released, which was subsequently reduced. Quantum of water released was not enough and even Water Pumping Station at Bheramara in Kushtia, faced problem in getting enough water to pump in for irrigation purpose under the Gages- Kabadak Irrigation Project. Joint River Commission formed for monitoring and sharing water flow is. now. defunct.. The acute shortage of water during dry season continues as ever.

Acute scarcity of water in the rivers, no water or very little water, in the rivers, caused draw down of the ground water table, making extraction of water by hand tube well very difficult or almost impossible. Most harmful of all, this drawdown of water table has led to arsenic contamination of underground water. Water extracted by tube wells are found to be contaminated with arsenic content of a level which is detrimental to human health, and even life threatening.     (To be continued)

The writer teaches law in different private universities