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Legal aspects of sharing and management oftransboundary waters in South Asia: preventingconflicts and promoting cooperationKishor Uprety a & Salman M. A. Salman ba Senior Counsel, The World Bank*b Former Water Law Advisor, The World Bank*

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641Hydrological Sciences Journal – Journal des Sciences Hydrologiques, 56(4) 2011Special issue: Water Crisis: From Conflict to Cooperation

Legal aspects of sharing and management of transboundary watersin South Asia: preventing conflicts and promoting cooperation

Kishor Uprety1 & Salman M. A. Salman2

1Senior Counsel, The World Bank�

2Former Water Law Advisor, The World Bank�

Received 14 April 2010; accepted 29 September 2010; open for discussion until 1 December 2011

Citation Uprety, K. & Salman, S. M. A. (2011) Legal aspects of sharing and management of transboundary waters in South Asia:preventing conflicts and promoting cooperation. Hydrol. Sci. J. 56(4), 641–661.

Abstract Historically, the development of cooperation among Bangladesh, India, Nepal and Pakistan with respectto the Indus and the Ganges-Brahmaputra-Meghna river basins, South Asia’s major transboundary rivers, hasbeen a cause of tension, apprehension and ongoing disputes. This paper draws attention to the hydro-politics ontransference and allocation, along with the diverging positions and unique concerns of the riparians on bilateral,multilateral, national as well as regional fronts. While examining the official water discourses and the evolutionof different international legal instruments applicable to the governance of water relations among the riparians,the paper also sketches the emerging concerns in their relationships, as well as their efforts to cooperate andcollaborate to avert disputes and manage water sharing and governance.

Key words water management; transboundary water resources; hydro-politics; conflict management; rivers; water-sharingtreaties

Aspects juridiques du partage et de la gestion des eaux transfrontalières en Asie du Sud: préven-tion des conflits et promotion de la coopérationRésumé Historiquement, le développement de la coopération entre le Bangladesh, l’Inde, le Népal et le Pakistan àl’égard des bassins de l’Indus et du Gange-Brahmapoutre-Meghna, les principaux fleuves transfrontaliers d’Asiedu Sud, a été une cause de tension, d’appréhension et de litiges toujours en cours. Cet article attire l’attentionsur l’hydro-politique touchant au transfert et à l’allocation, ainsi qu’aux positions divergentes et aux préoccupa-tions particuliéres des riverains sur les fronts bilatéraux, multilatéraux, nationaux et régionaux. En examinant lesdiscours officiels sur l’eau et l’évolution des différents instruments juridiques internationaux applicables à la gou-vernance des relations entre les riverains, cet article esquisse également les nouvelles préoccupations dans leursrelations, ainsi que leurs efforts pour coopérer et collaborer dans le but d’éviter les conflits et de gérer le partagede l’eau et sa gouvernance.

Mots clefs gestion des eaux; ressources en eaux transfrontalières; hydro-politique; gestion des conflits; fleuves; traités sur lepartage des eaux

A CONFLICTS OVER TRANSBOUNDARYWATERS IN GENERAL

For more than five millennia, water rules and relation-ships have evolved in the midst of clashes of localneeds, customs, and social, cultural and religiousbeliefs. Yet all civilizations were able to manage suchclashes with agility. The Indus Valley civilization,ancient Egypt and ancient China, all introduced,

∗The views and opinions expressed herein are those of the authors and should not be attributed to any of the institutions with which they are associated.

early on, rules governing floods, irrigation, or watermanagement, with concepts that are even valid today.While water rules and systems in ancient timesessentially focused on community rights, the post-industrial revolution period has increasingly stressedprivate ownership issues. Similarly if, in the late20th century, the focus of water governance shiftedto containing pollution together with allocation, theemphasis in the early 21st century is shifting to

ISSN 0262-6667 print/ISSN 2150-3435 online© 2011 IAHS Pressdoi: 10.1080/02626667.2011.576252http://www.informaworld.com

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642 Kishor Uprety & Salman M. A. Salman

managing water resources in an integrated mannerand in the context of sustainable development. Indeed,the historical evolution of rules, regulations, rightsand responsibilities in respect of water implies acertain path dependency (Getzler 2004, Dellapennaand Gupta 2008), and creation of a balance amongthe clashes.

Influenced by, and integrated with, the host ofabove-noted elements, water laws in a number ofcountries are currently relatively well-developed. Insome countries, they are unified as a coherent andcomprehensive whole, while in some others, due torecognition of the plurality of sources, they thrivein the midst of different competing legal princi-ples. Whether comprehensive, coherent, or pluralist,the concepts prevalent in any national legal frame-work always impact on the country’s transnationalbehaviour. Such behaviour has to address the issueof scarcity due to the considerable increase in globaldemands, an important source of conflict all overthe world. Indeed, whether in the Americas, Europe,Africa, Asia or the Middle East, there have beencontinual problems of understanding and outbreaksof explicit disagreements over the use of sharedrivers, thus leading to greater eventuality for seriousconflicts.

Conflicts over water can be interstate orintrastate: interstate conflicts occurring between twoor more neighbouring countries that share a trans-boundary water basin (river, lake or groundwaterbasin), and intrastate between two or more partieswithin the same country (conflicts between farmersversus industry, or agricultural versus industrial useof water, or between different provinces of a federatedstate). Thousands of conflicts, disputes and controver-sies have dominated the history of water relations.The dispute on the Meuse in connection with itscanals, the case concerning the Zwillikon Dam inSwitzerland, the issues regarding the Rio Grande, theChicago diversion, the apportionment of the Nile, orthe dispute over the St Laurence, all have had to bedealt with, one way or the other (Smith 1931).

Interstate disputes, in one form or another, arecurrently occurring in many regions. Whether inthe Middle East region (Euphrates and the Tigrisrivers dispute among Turkey, Syria and Iraq; andthe Jordan River conflict among Israel, Lebanon,Jordan and the Palestinians), in Africa (Nile Riverdispute among Egypt, Sudan, and Ethiopia), in theformer Soviet Union (the Aral Sea conflict amongKazakhstan, Uzbekistan, Turkmenistan, Tajikistanand Kyrgyzstan), or in South Asia (the Ganges and theIndus among India, Bangladesh, Nepal and Pakistan),

the disputes, by and large, concern water sharing andgovernance.

Indeed, increasing scarcity of freshwater in manyparts of the world points to the possibility ofdisagreements over shared water resources as a lead-ing source of conflict in the 21st century (the exagger-ated term “water wars” is sometimes used). Typicalgrounds for disagreement include a lower riparian’sobjection to flooding, pollution, water sharing, exces-sive irrigation, or the construction of dams by anupper riparian, which may decrease the quantity ordegrade the quality of water available to the lowerriparian. Such grounds also include upstream ripar-ian’s concern that they can be affected, or evenharmed, by the potential foreclosure of their futureuse of water, caused by the prior use, and the claim ofrights to such water by the downstream riparians. Notsurprisingly, therefore, in some instances, states haveeven employed militarized force to protect or seizefreshwater resources. Multiple incidents betweenIsrael, Syria and Jordan in the 1950s and 1960s sur-rounding attempts by each side to divert water fromthe Jordan and Yarmuk rivers, or threats betweenTurkey, Syria and Iraq over the construction of damson the Euphrates River, are all noteworthy examples.

However, fortunately only a part of conflicts leadto military intervention. An interesting study, recall-ing that during the period 1950–2000, a notable 1831events concerning conflicts over transboundary waterbasins had occurred, confirms their variable natureand characteristics (Wolf et al. 2001). Accordingto the study, indeed, in most such conflicts, there isno event on the extremes and most interactions arecooperative and mild. Similarly, in such conflictsif water acts as an irritant, it also acts as a unifier.Furthermore, whenever there is a conflict, mostnations still cooperate over a wide variety of issues(Wolf et al. 2001, Kuehnast and Dudwick 2008).But, in spite of commonalities found in the midst ofvariability in characteristics, each and every conflictis also unique in many regards. South Asian conflictson the sharing and management of shared waterresources are no exception, as will be discussed inthe rest of this article.

B TRANSBOUNDARY WATER CONFLICTSIN SOUTH ASIA

South Asia’s water coverage is large. However, thedistribution of water resources throughout India,Pakistan, Nepal and Bangladesh has constantly beena politically-charged issue, with the tensions mount-ing over the control of water supplies emanating from

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Transboundary Waters in South Asia 643

scarcity, ill faith and bad governance. As assessed bysome scholars:

[T]he last fifty years of water management inSouth Asia has been the story of an unfoldingdisaster. Throughout the region, the water andenergy requirements of cities and villages haveconfronted decline in the quality and quantity ofwater. These years have made societies in theregion more vulnerable to environmental degra-dation and jeopardized the future internationalrelations and economic well-being of each ofthe countries in the region. Particularly, unthink-ing attempts to mechanically bolster supply havealmost invariably ignored existing scientific andsocial knowledge, and ended up by being adisgrace to the principles of good governance(Ahmed et al. 1999).

The increase in demand continues to be a cata-lyst for conflict. Also, the divisions of the river basinwaters due to political changes and the outcome ofdecolonization have created deep friction among thecountries, as well as among their states and provinces(Swain 1998, Salman and Uprety 2003). As such,South Asian countries have had to deal with bothintrastate and interstate conflicts over the sharing ofriver water in both downstream and upstream regions,and notably in connection with the Indus and theGanges systems.

B1 THE INDUS RIVER SYSTEM

Spanning 1800 miles (2880 km), the Indus River andits tributaries collectively make up one of the largestirrigation canals in the world (see Table 1). The riverbegins in the Himalayan Mountains of Tibet in China,in the vicinity of Lake Manasarovar, the highest fresh-water lake in the world (15 000 feet or 4500 m).It initially flows 600 miles (960 km) northwest andthen turns south, draining an area that includesthe high mountains of India. It then flows throughPakistan before emptying into the Arabian Sea, south-east of Karachi, Pakistan.

The Indus is one of the largest sediment-producing rivers in the world. Its flows are highly vari-able and depend on melting snow from the Himalayanglaciers and on monsoons. About 70% of the totalannual runoff occurs between June and September.The river system consists of the main stem Indus andfive major tributaries, all of which flow partially orentirely through India before reaching Pakistan, andthe Kabul River. India is, therefore, the upper ripar-ian nation on virtually every tributary of significancein the basin, excepting for the Kabul River, whichbegins in Afghanistan and flows through its capital,Kabul, before converging with the Indus River inPakistan.

B1.1 The Dispute The Indus dispute, essen-tially, resulted from the partition of India and thecreation of Pakistan, a partition that largely ignoredthe topography, ecology and the then existing irriga-tion infrastructure on the Indus Basin. A situation-summary by a reputed magazine depicted a clearpicture at that time in the following words:

This 1800-mile long river rises in the Himalayasof Tibet, is fed by six tributaries, and now formsa sort of unwieldy international fire hose withIndia, at the headwaters, controlling the spigot,and Pakistan, down-country, at the unpredictablenozzle. Further complicating this, the canals andbarrages built under British rule to serve a uni-fied area were, under partition, left pretty muchon the Pakistani side of the border. The canalsystem of irrigating lands, originally built by theBritish, was divided into two to meet a politi-cal compromise. As a result, 80% of the landirrigated by the Indus River and its tributariesbecame part of Pakistan. But the headwaters ofthe entire river system remained in India. Notsurprisingly, the Indus River was a source oftension between the two nations within weeksafter Pakistan was established. Partition liter-ally divided one set of canals between the WestPunjab in Pakistan and the East Punjab in India,

Table 1 The Indus Basin (source: adapted from Encyclopedia of International Rivers, 2002).

Length 1800 miles (2880 km)

Basin size 418 000 sq. mi. (1 070 080 km2)Average discharge 142 MAF∗ per year (175 154 421 000 m3)% of the basin in different countries Pakistan (52); India (34); China/Tibet (7); Afghanistan (6);

Disputed-China-India (<1)

∗MAF (million acre feet) = 1 233 481 840 m3.

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with India receiving control of upstream riversthat supplies both West and East Punjab. (Indiaand Pakistan, An Atlantic Report, 1960).

As a result of the boundary delineation betweenPakistan and India, Punjab was separated into Eastand West regions. A Punjab Partition Committee wasestablished to resolve disputes regarding division ofassets between the divided provinces. Both East andWest Punjab agreed, in 1947, that the position exist-ing at the time of partition shall not be disturbed andwaters shall be divided equally (commonly referred toas the Standstill Agreement).

However, in 1948, India, claiming absolutesovereignty, unilaterally closed canals in its territoryon the Ravi and the Sutlej, cutting off Pakistan’s sup-ply of water. India agreed to re-open the canals aspart of an Inter-Dominion Agreement of 1948, butasserted its right to control the entire water supply ofthe Ravi, Sutlej and Beas rivers. The Inter-DominionAgreement required India to release, on a temporarybasis, sufficient waters to Pakistani regions in returnfor annual payments. In fact, that same year, EastPunjab stopped the flow of water to West Punjab stat-ing absolute sovereignty, and resumed the flows onlyafter Pakistan made a payment to India.

In the midst of such vagaries of bilateral rela-tions over water, after close to ten years of negoti-ation, India and Pakistan in 1960 signed the IndusWaters Treaty, along with the World Bank, which alsobecame a signatory for certain limited purposes. TheTreaty involves the two countries, which occupy 86%of the basin. The two other riparian nations, Chinaand Afghanistan, were not invited to participate in thenegotiations and are not party to the Treaty.

B1.2 Treaty Regime The salient features ofthe Indus Treaty include: (i) three Eastern Rivers(Ravi, Sutlej and Beas) allocated to India; (ii) threeWestern Rivers (Indus, Jhelum and Chenab) allo-cated to Pakistan; (iii) Pakistan to meet its EasternRivers needs from the Western Rivers by construct-ing replacement works; (iv) safeguards incorporatedin the Treaty to ensure unrestricted flow of waters inthe Western Rivers, subject to some uses by India;(v) both parties to regularly exchange flow-data ofrivers, canals and streams; and (vi) a Permanent IndusCommission constituted to oversee implementation ofthe Treaty.

Unlike treaties in other basins that divide riversby flow or quantity, the Indus Treaty divides the IndusRiver system into three Eastern Rivers, to which Indiahas “unrestricted use”, and three Western Rivers, towhich Pakistan has “unrestricted use”. However, these

allocations were both subject to certain exceptions.Pakistan agreed not to interfere with the waters ofthe Eastern Rivers where they formed boundariesbetween the two countries, and India retained the rightto build upstream, non-storage dams on the WesternRivers. It was agreed under the Treaty that Pakistanwould build works during a “transition period” toreplace the canals on which it had relied to drawwater from the Eastern Rivers. During this transi-tion period, India agreed to supply Pakistan with aminimum amount of water, until Pakistan had com-pleted its infrastructure replacements works. To helpdefray the costs of building this infrastructure, Indiaagreed to pay a fixed sum of money to Pakistan. Inaddition, the World Bank and a number of donorsprovided Pakistan with close to one billion US dollars,which enabled Pakistan to build the Tarbela Dam onthe Indus River, and the Mangla Dam on the JhelumRiver. These dams created sufficient storage toreplace two-thirds of the water lost to Pakistan whenIndia obtained control of the three Eastern Rivers.

B1.2.1 Governance and Treaty implementationThe Treaty sets out the procedures for settlement ofdifferences and disputes, including through a Court ofArbitration. It provides for a two-member PermanentIndus Commission, with one commissioner fromIndia and one from Pakistan, vested with the author-ity to resolve disputes arising out of the Treaty. Thus,if either of the countries has a question regardingTreaty interpretation, the matter can be referred tothe Permanent Indus Commission. If the Commissionis unable to resolve the question, then the questionbecomes a “difference” and can be referred to a“Neutral Expert”, to be appointed by the two par-ties, or by a third party agreed by them. Failing that,the appointment would be carried out by the WorldBank. The Neutral Expert’s determination is final. Ifthe question is not within the Expert’s mandate, or ifthe Expert concludes that the matter is a “dispute” (asopposed to a “difference”), then the parties may referthe matter to a court of arbitration, composed of sevenmembers. Two members would be appointed by eachparty, while the remaining three would be appointedthrough a complex process involving, among others,the World Bank and the United Nations (UN).

From an implementation standpoint, the IndusTreaty remains a success story (Wheeler 2009), asconfirmed by the fact that it has survived continuedregional hostility, including two wars between Indiaand Pakistan. It has succeeded in resolving a bitter andlong dispute by dividing the rivers of the Indus RiverSystem, establishing an institutional mechanism foroverseeing implementation of the Treaty, and putting

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in place a comprehensive process for prevention andresolution of differences and disputes. In fact, thisprocess has been invoked a few times in connectionwith issues of interpretation of the Treaty, as dis-cussed below.

B1.2.1.1 The Wullar Barrage issue Despite detailedrights, obligations, protections and permissionsspelled out under the Indus Treaty, a dispute emergedin 1985, when Pakistan learnt through a tender noticein the press about the development of a barrageby India, under the name Tulbul Navigation Project(Pakistan referred to it as the Wullar Barrage). Thebarrage was to be constructed on the River Jhelum,below Lake Wullar located near Sopore, 25 km northof Srinagar, where the River Jhelum flows into theLake in the south and flows out of it from the west.For Pakistan, the geo-strategic importance of the sitelay in the fact that its possession and control pro-vided India with the means to control water flow toPakistan. It claimed that a dam on that site had thepotential to adversely affect the entire system of thetriple canal project within Pakistan, namely: the upperJhelum Canal, upper Chenab Canal and the lower BariDoab Canal.

According to the Indian Government, however,the purpose of the Wullar Barrage was to construct acontrol structure, with a view to improving the nav-igation in the River Jhelum during winters, in orderto connect Srinagar with Baramula for transportationof fruits and timber. It viewed the barrage not as aneffort to divert water flowing into Pakistan, but toensure the navigability of the river during summer(Daily Times, 29 June 2005). India claimed that 90%of the Tulbul project would be beneficial to Pakistan,as it would regulate the supply to Mangla Dam. Thiswould further increase Pakistan’s capacity to generatepower at Mangla, as well as the irrigation network inthe Pakistani Punjab through the triple canal system.It would also be especially effective in reducing theflow of water during the flood season. India even sug-gested that Pakistan should actually bear a share ofconstructing the Barrage.

But Pakistan argued that India had violatedArticle I(11) of the Indus Treaty, which prohibits bothparties from undertaking any “man-made obstruc-tion” that may cause “change in the volume of thedaily flow of waters”. Pakistan further argued thatArticle III(4) specifically barred India from “storingany water of, or constructing any storage works on,the Western Rivers”. According to sub-paragraph 8(h)of the Indus Treaty, India is entitled to construct an

“incidental storage work” on Western Rivers on itsside: (1) only after the design has been approved byPakistan; and (2) only if its storage capacity does notexceed 10 000 acre feet (12 334 818.4 m3). Pakistanfurther alleged that the Wullar Barrage’s capacity is300 000 acre feet (370 044 551 m3), which is 30 timesthe permitted capacity. Moreover, regarding the build-ing of a hydro-electric plant, Pakistan alleged that,according to the Treaty, India is only allowed to con-struct a small runoff water plant with a maximumdischarge of 300 cusecs (8.495 054 m3/s) through theturbines, which is insufficient to generate 960 MWof electricity as planned by India (under the WullarProject).

From Pakistan’s angle, the control of the RiverJhelum by India through storage work would alsomean a serious threat to Pakistan if India were todecide to withhold the water over an extended period,especially during the dry season, in addition to mag-nifying the risks of floods and droughts in Pakistan.The Mangla Dam on the River Jhelum, which isa source of irrigation and electricity for Punjab,would be adversely affected. It would further provideIndia a strategic edge, during a military confronta-tion, enabling it to control the mobility and retreatof Pakistani troops and enhancing the manoeuvrabil-ity of Indian troops. Closing the Barrage gates wouldrender the Pakistani canal system dry and easy tocross. It may be recalled, in this connection, that dur-ing the 1965 war, the Indian Army had failed to crossthe Bambanwala Ravi Bedian Link Canal, due to itsfull flow, and that India is already in control of theChenab River through the Salal Dam constructed in1976, which many Pakistanis continue to criticize.

Pakistan referred the Wullar Barrage case tothe Indus Commission in 1986, but the Commissionfailed to resolve it. Pakistan then decided to take thecase to a Court of Arbitration under the Treaty, butIndia suspended the construction work. To date, eightrounds of talks have been held. In 1989, Pakistanagreed to the construction of the Barrage condi-tional to Pakistani inspection, which India rejected.The two sides almost reached an agreement inOctober 1991, whereby India would keep 6.2 m ofthe Barrage ungated with a crest level of 5167 ft(1574.90 m), and would forego the storage capacityof 300 000 acre feet (370 044 551 m3), allowing,in return, the water level in the Barrage to attainthe full operational level of 5177.90 ft (1578.22 m).However, in February 1992, Pakistan introducedanother condition that India should not constructthe Kishanganga (390 MW) hydropower-generating

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unit on the Neelum River, which would affect theNeelum-Jhelum power-generation project, located inits Punjab province, as discussed later in this paper.

B1.2.1.2 The Baglihar difference and the role of theNeutral Expert More recently, another controversyarose, involving a Hydropower Project (Baglihar DamProject). India planned to construct a dam 60 miles(96 km) upstream from the Pakistani border, on theChenab River, one of the Western Rivers allocatedunder the Treaty to Pakistan, claiming India’s rightto build upstream non-storage facilities under theIndus Treaty. In protest, Pakistan invoked the IndusTreaty’s dispute-resolution mechanism, as in its view,the water storing capacity of the Baglihar Dam wasat a level prohibited by the Treaty, and the design ofthe hydropower plant violated a number of conditionsspelled out therein. Pakistan was further concernedthat the Dam would allow India to obstruct and con-trol the flow of the Chenab River. India, on the otherhand, disagreeing with the claim of Pakistan, statedthat the Baglihar Dam was merely planned to generatepower through run-of-the-river without storage, andwas thus in conformity with the Treaty specifications.Following failure to resolve the question throughthe Permanent Indus Commission, Pakistan, on 15January 2005, approached the World Bank request-ing it to appoint, as per the Indus Waters Treaty, aNeutral Expert to resolve the difference over Baglihar(Salman 2008). With a number of iterations and reit-erations on the consultation and selection processes,five months after the original request, the NeutralExpert was appointed (Salman 2008).

B1.2.1.2.1 The difference in the Treaty context Pakistanclaimed that the Baglihar Project did not conformto criteria (a), (c), (e) and (f) of Paragraph 8 ofAnnexure D to the Treaty. To elaborate, criterion (a)states that the works shall not be capable of rais-ing artificially the water level in the operating poolabove the full pondage level specified in the design,and Pakistan alleged that the Baglihar Dam did notmeet this requirement. Similarly, criterion (c) requiresthe maximum pondage in the operating pool not toexceed twice the pondage required for firm power,and Pakistan claimed that it exceeded twice thatlevel. Again similarly, criterion (e) states that if theconditions at the plant site make a gated spillwaynecessary, the bottom level of the gates in normalclosed position shall be located at the highest levelconsistent with sound and economical design. Onthis point, Pakistan claimed that the Baglihar Damdesign was not based on correct, rational and realistic

estimates of maximum flood discharge. Lastly, cri-terion (f) requires that the intakes for the turbinesshall be located at the highest level consistent withsatisfactory and economical construction and oper-ation of the plant as a run-of-the-river plant, butPakistan considered that the intakes for the turbineswere not located at the highest level as mandated(Salman 2008).

Following the submission by Pakistan and Indiaof the basic information, the memorandum byPakistan, and the counter-memorandum by India,the Neutral Expert, together with delegations fromIndia and Pakistan, visited the Baglihar site in earlyOctober 2005. Five months later, the Neutral Expertpresented a draft determination to the two parties, ask-ing for their written and oral comments. Finally, inSwitzerland, on 12 February 2007, the Neutral Expertdelivered to the ambassadors of India and Pakistan,signed copies of the final decision on the Baglihardifference (referred to as the Expert Determination).Copies of the decision, which consisted of a full com-prehensive report and a separate Executive Summary,were also delivered to the World Bank, as required bythe Treaty.

B1.2.1.2.2 The ruling The Executive Summary makestwo interesting legal points. First, that the rights andobligations of the parties, under the Indus Treaty,had to be read in the light of new technical normsand standards, and interpreted so as to permit thefulfilment of the purpose of the Treaty in “a spiritof goodwill and friendship” taking into account thebest and latest practices in the field of constructionand operation of hydro-electric plants. And second,that the interpretation of the Treaty was guided bythe principles of integration and effectiveness to findeffect in its whole and to ensure that each of its objectsis given the fullest weight and effect when interpretingthe rights and obligations thereunder. Those purposesinclude attaining the most complete and satisfactoryutilization of the waters of the Indus River System,and fixing and delimiting the rights and obligations ofeach party in relation to the other. The ruling of theNeutral Expert dealt with the contested issues underthe four criteria discussed above, under six headings.

The first heading concerned the design floodrelated to the calculation of the maximum amount ofwater that can reach the dam. In view of the manyuncertainties in flood analysis, the Neutral Expertretained the value of 16 500 m3/s proposed by India,as opposed to 14 900 m3/s proposed by Pakistan,for the peak discharge of the design flood, andfurther stated that the possibility of increased flooding

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due to climate change encouraged such a prudentapproach.

The second heading concerned the need for agated or an ungated spillway. Pakistan considered thata gated spillway was unnecessary, for it would allowIndia to control the flow of the river, but the NeutralExpert determined that the hydrology, sediment yield,topography, geology and seismicity of the site war-ranted a gated spillway. The Expert further added thatthe analysis of 13 000 existing spillways in the worlddemonstrated that gates on large spillways were com-mon practice, that an ungated spillway could increasethe risk of flooding the upstream shores, and that anelevation of the dam crest, which would prevent sucha risk, would be too costly.

The third heading concerned the level of thespillway gates. Pakistan was of the view that evenif a gated spillway was deemed necessary, the ori-fice spillway proposed by India had to be locatedat the highest level consistent with the Treaty. TheIndian position, in contrast, was that the design of thechute, sluice and auxiliary spillways was necessary toensure safe passing of the design flood. The NeutralExpert, agreeing with India, determined that the gatedchute spillway on the left wing planned by India isat the highest level consistent with sound and eco-nomical design and, therefore, satisfactory. However,the Expert considered that the outlets that form thesluice spillway, planned by India, should be of theminimum size and located at the highest level consis-tent with a sound and economical design. The NeutralExpert also proposed that the outlets be located 8 mlower to ensure protection against upstream flooding.On this issue, the Neutral Expert deemed that theIndus Treaty lacked detail on the issue of sedimenta-tion, understandably because it reflected the status oftechnology on reservoir sedimentation of the 1950s,and affirmed that, consequently, the provision of theTreaty, explicitly referring to sedimentation, acquireda special significance.

The fourth heading concerned the artificial rais-ing of the water level. On this issue, the NeutralExpert concurred with Pakistan’s position that thedam crest elevation proposed by India was exagger-ated and could be lower. The Expert further deter-mined that the crest elevation submitted by India at844.5 m above sea level (a.s.l.), resulting from a free-board above the full pondage level of 4.50 m was notat the lowest elevation, and that the freeboard shouldbe 3.0 m above the pondage level, leading to a damcrest elevation of 843.0 m a.s.l.

The volume of the maximum pondage was thefifth heading. Pakistan had argued that the value

proposed by India exceeded twice the pondagerequired for firm power. The Neutral Expert, incontrast, determined that the values for maximumpondage stipulated by both India and Pakistan werenot in conformity with the criteria laid down in theTreaty and, therefore, fixed a lower value.

Finally, the sixth heading concerned the level ofthe power intake. Pakistan had argued that it was notlocated at the highest level as required by the Treaty.The Neutral Expert agreed with this view and deter-mined that the intake level should be raised by 3 mand fixed it at an elevation of 821 m a.s.l.

No doubt, the Baglihar Difference posed majorchallenges to the governance of the Indus Treaty.However, the reactions over its resolution were pos-itive, and both India and Pakistan accepted the deci-sion and claimed victory, emphasizing the areas of theverdict which they believed responded positively totheir specific claims. The outcome also underscoredthe positive role of the World Bank in the resolutionof the difference.

B1.2.1.3 The Kishanganga issue Another controversy,which has been brewing in the context of the IndusTreaty, is related to the Kishanganga Project. This isa hydropower plant in India, which diverts water tothe Jhelum River from the Kishanganga River (calledNeelum in Pakistan), a tributary of the Jhelum, beforeentering Pakistan. Another hydropower plant 140 kmdownstream in Pakistan (called the Neelum-JhelumProject) is also in the planning stage and this toodiverts water to the Jhelum River from the sametributary (the Neelum) after it enters Pakistan.

Pakistan raised technical and legal objections toKishanganga and claimed that it is a violation of theIndus Waters Treaty. It claimed that the diverted waterwould reduce downstream flows and hydropower gen-eration capacity in Neelum-Jhelum, with significantenvironmental impacts, including on a National Park.

India, on the other hand, claimed that the diver-sion will not reduce the total flows into Pakistan,and would have no impact because Neelum-Jhelumis not an existing project. India further claimed thatthe design features are in conformity with the IndusTreaty.

Actually, neither project is completed yet. Eachparty appears to be building its respective projectto claim “prior appropriation” and “existing use” tothe water of the tributary. Also noteworthy is thatboth Annexures F and D of the Indus Treaty includeprovisions relevant to the Kishanganga Project, butdifferent interpretations have already surfaced. Thedispute has intensified in recent months. Reports from

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Pakistan and India indicate that the two parties mayactually be heading towards treating Kishanganga asa dispute under the Indus Waters Treaty, and thus haveit handled by a Court of Arbitration under AnnexureG of the Treaty. Indeed, this approach was formallyadopted and a Court of Arbitration was establishedat the beginning of this year. Thus, Kishanganga hasbecome the first case to invoke Annexure G of thetreaty, just as Baglihar was the first difference toinvoke Annexure F (on the Neutral Expert). This iscertainly a welcome approach, as it will contributetremendously to the process of peaceful settlement ofinternational disputes.

B1.2.2 Inter-province conflict management Theallocations of the Indus waters have also proved prob-lematic within Pakistan. Between 1971 and 1991,there was no formal allocation system within thecountry that specified which province received howmuch water from the Indus River. Although, as perthe Indus Treaty, Pakistan had already built, by theend of 1970, storage reservoirs at Chashma on theIndus and Mangla on the Jhelum, and six new head-works and seven large inter-river link channels, andhad completed the Tarbela Dam on the Indus in1976, the federal government distributed the availablewater between provinces on an ad hoc basis for eachcrop season. But, since this arrangement disallowedextension of the irrigation network to new areas andconstruction of new projects, a Water ApportionmentAccord was signed in 1991, among the four provinces.

B1.2.2.1 The Indus System water apportionment Theobjective of the Accord was to enable the provincesto assess the possibility of, and to determine the loca-tion of, water storage projects on the basis of theirallotted share, and to satisfy their demands on anequitable basis (see Table 2). In light of the acceptedwater distributional principles, the apportionment wasagreed as shown in Table 2.

The North Western Frontier Province (NWFP)and Balochistan projects under execution were fur-ther provided their authorized quota of water asexisting uses. Meanwhile, the balance river supplies(including flood supplies and future storages) weredistributed amongst Punjab (37%); Sindh (37%);Balochistan (12%); and NWFP (14%).

The Accord also noted that the industrial andurban water supplies for the Metropolitan City ofKarachi, for which there were sanctioned alloca-tions, would be given priority, and that the storages,wherever feasible (on the Indus and other rivers),would be planned for future agricultural develop-ment. Similarly, the need for certain minimum waterconveyance to sea, below Kotri, to check seawaterintrusion, was recognized. While Sindh held the viewthat the optimum level was 10 MAF (12 334.82 hm3)(which conflicted with other studies indicating alower/higher figure), it was decided that further stud-ies would be undertaken to establish the minimumwater conveyance needs downstream of Kotri.

No restriction was put by the Accord on theprovinces to undertake new projects within theiragreed shares, on small schemes not exceeding5000 acres (20 234 282.1 m2) above elevationof 1200 ft (365.76 m). Similarly, no restrictionwas imposed on developing irrigation uses in theKurram/Gomal/Kohat basins, so long as they did notadversely affect the existing uses on these rivers, andon Balochistan, to develop the water resources of theIndus right-bank tributaries flowing through its areas.

It was further agreed that the requirements of theLeft Bank Out-Fall Drain would be met out of theflood supplies, in accordance with the agreed shar-ing formula. The system-wise allocation would beworked out separately, on a ten-day basis and wouldbe attached to the Accord as its integral part. Therecord of the actual average system uses for the period1977–1982 would form the guidelines for developinga future regulation pattern. The ten-day uses would be

Table 2 Indus water apportionment within Pakistan. (in MAF) (source: Water Apportionment Accord 1991).

Province Kharif Rabi Total

Punjab 37.07 (45 725.17 hm3) 18.87 (23 275.80 hm3) 55.94 (69 000.97 hm3)Sindh∗ 33.94 (41 864.37 hm3) 14.82 (18 280.20 hm3) 48.76 (60 144.57 hm3)(a) North Western Frontier Province (NWFP) 3.48 (4 292.52 hm3) 2.30 (2 837.01 hm3) 5.78 (7 129.53 hm3)(b) Civil canals† 1.80 (2 220.27 hm3) 1.20 (1 480.18 hm3) 3.00 (3 700.45 hm3)Balochistan 2.85 (3 515.42 hm3) 1.02 (1 258.15 hm3) 3.87 (4 773.58 hm3)Total 77.34 (95 397.49 hm3) 37.01 (45 651.16 hm3) 114.35 (141 048.65 hm3)

MAF (million acre feet) = 1 233 481 840 m3.∗ Including already sanctioned urban and industrial uses for metropolitan Karachi.† Ungauged civil canals above the rim stations.

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adjusted pro-rata to correspond to the indicated sea-sonal allocations of the different canal systems andwould form the basis for sharing shortages and sur-pluses on an all-Pakistan basis. Meanwhile, it wasagreed to operate the existing reservoirs with prior-ity for the irrigation uses of the provinces, whichwill also have the freedom within their allocationsto modify system-wise and period-wise uses. TheAccord stressed on efforts to avoid wastages, and alsostated that surpluses, if any, could be used by anotherprovince, but without establishing any permanentrights to such uses. Finally, the Accord provided forthe establishment of an Indus River System Authority,with headquarters in Lahore and representation fromall the four provinces.

B1.2.2.2 The Indus River System Authority The IndusRiver System Authority was established in 1993with an objective to regulate and distribute wateramong provinces and to protect their interests byensuring that each one gets its share according tothe Water Apportionment Accord. The creation ofthe Authority allowed representatives from both thefederal government and the provinces within Pakistanto agree on an equitable intra-country allocation.

Although it represents a significant institutionalcontribution, the Authority has not been able to pre-vent or resolve conflicts. For instance, it has not beenable to resolve the dispute between Sindh and Punjab,as the former demands its share as per the formulain the Accord and the latter on the basis of histori-cal usage. Nonetheless, with the Authority in place,a forum where discussions can be held has beenlaunched, and it can still play a role of a deterrent inany eventuality of conflict amongst provinces.

B1.3 Conclusion As can be concluded from theforegoing discussion, implementing the Indus regimehas been a difficult exercise for both parties. However,due largely to the Treaty’s in-built mechanisms toaddress questions, differences and disputes, the par-ties have been able to manage conflicts and, in spite ofthe frequent upheavals in bilateral relations betweenthem, the Treaty, so far, has had a relatively smoothsailing.

B2 THE GANGES-BRAHMAPUTRA-MEGHNA (GBM) RIVER SYSTEM

The GBM system includes three large rivers: theGanges, the Brahmaputra and the Meghna. TheGanges River begins in the Himalayas in Nepal andChina. It flows southeast through India, where itdrains roughly 30% of the country, and then flowsthrough Bangladesh. The Brahmaputra River beginsin China and initially flows east before changingdirection, breaking through a deep (16 000 feet, or4876.8 m) gorge, and then turning abruptly south-west to flow through northeastern India and thenBangladesh. The Brahmaputra joins the Ganges nearthe town of Goalanda in Bangladesh, from whichpoint onward it is known as the Padma River. Fartherdownstream, the river is joined by the Meghna Riverat Chandpur, Bangladesh. The Padma-Meghna Riverthen empties into the Bay of Bengal.

The existing dams on the Ganges-Brahmaputrasystem can store 46.5 MAF (57356.9054 Mm) ofwater. In the Ganges Basin, the largest dam is Rihand,situated on the Son River, a tributary in India. Anotherlarge dam, Tehri, is on the Bhagirathi River, anothertributary. Other dams are located in the upper basin inNepal, which is the source of three major tributaries(the Mahakali, Gandaki and Kosi). Nepal, accordingto some estimates, contributes more than 40% of theannual flow of the Ganges River and 70% of its flowin the dry season.

In fact, of all the rivers in the world, only theAmazon and the Congo have average annual flowslarger than the GBM River system (see Table 3).Its combined discharge into the ocean is thus the thirdlargest in the world. The Brahmaputra alone provides50% of this flow, twice the contribution of the Ganges(Ping and Davlin 2010).

Of the GBM system, the Ganges River has beena source of dispute between India, Bangladesh and,to a limited extent, Nepal. With continual increas-ing demands for water for industrial, domestic andirrigation uses in the Indian State of West Bengal, ten-sions between Bangladesh and India over water shar-ing procrastinate. In a similar vein, Nepal and Indiahave long been bickering over several fragmented

Table 3 The GBM system (source: adapted from Verghese and Iyer 1994).

Length 1800 miles (2880 km) for the Brahmaputra, and 1560 (2496 km) miles for the Ganges

Basin size 644 000 sq. mi. (1648 640 km2)Average discharge 985 MAF per year (1 214 979.61 hm3)Countries and % in the GBM basin India (58); China (20); Nepal (9); Bangladesh (7); Bhutan (2); Disputed (China/India) (4);

Myanmar (<1)

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issues on the tributaries of the Ganges, without beingable to find a solution satisfactory to both.

Meandering across an immense delta varyingbetween one and five miles (1.6–8 km) in width, theriver and the tributaries in the lower part of the basinhave changed route dramatically in the last 1000years. For instance, until the 12th century, the GangesRiver flowed south into the Hugli River, and thenemptied into the Bay of Bengal near Calcutta. Overtime, the river changed its course, and started to floweast, not south. As a result, the Hugli River becameconsiderably smaller, a change that prompted Indiato build a dam on the Ganges River (the FarakkaBarrage) supposedly to re-divert water into the chan-nel of the Hugli; a change that also became the majorcause of the Farraka dispute between Bangladesh andIndia.

B2.1 The dispute and the Ganges Basin TreatyRegime The genesis of formal water cooperationalong the Ganges basin dates back to 29 April 1875,the date of signing of an Agreement between the thenBritish Government and the State of Sindh for reg-ulating the supply of water for irrigation from theWestern Jumna Canal (amended on 24 July 1892).On 29 August 1893, another Agreement between theBritish Government and the Patiala State regardingthe Sirsa Branch of the Western Jumna Canal wassigned. Since then, a number of bilateral agreements,treaties, or memoranda of understanding have beensigned among the riparian countries. Those instru-ments include the 1920 Agreement between Nepaland India (the then British Empire) for construct-ing the Sarada Barrage on the Mahakali River; the1954 Agreement between Nepal and India on the KosiProject; the 1959 Agreement between Nepal and Indiaon the Gandak Irrigation and Power Project; the 1977Agreement between Bangladesh and India on sharingof the Ganges waters at Farakka and on augment-ing its flows; the two Memoranda of Understandingin 1982 and 1985; the 1996 Treaty between Nepaland India concerning the integrated development ofthe Mahakali River; and the 1996 Treaty betweenBangladesh and India on sharing of the Ganges watersat Farakka.

Hence, there are two sets of agreements pertain-ing to the Ganges River. The first set is betweenIndia and Bangladesh dealing with the operation ofFarakka Barrage and water sharing in the lower basin.The second is between India and Nepal, address-ing river governance, power sharing, irrigation, and

other issues on its tributaries in the upper basin, asdiscussed below.

B2.1.1 The India-Bangladesh Ganges Treaty In1951, India announced its intention to build theFarakka Barrage at the head of the Ganges River Deltain West Bengal, 11 miles (17.6 km) upstream of theborder with then East Pakistan (now Bangladesh).The construction began in 1961 and the Barragebecame operational in 1975.

The Barrage, which diverts water into a canalfor irrigation and then into a channel of the HugliRiver (which flows into Kolkata), became a sourceof tension between India and Pakistan, and laterBangladesh, who claimed that it prevented water fromflowing into its territory, causing serious damage tothe water table, and reducing irrigation and domesticsupplies. Concomitant to this controversy, India andBangladesh signed in 1972 the “Statute of the Indo-Bangladesh Joint Rivers Commission” with the viewto working together “in harnessing the rivers commonto both countries for the benefit of the peoples of thetwo countries”. However, the Statute, due to its gen-eral nature, failed to include any provision obligatingIndia to adapt or change the operation of the FarakkaBarrage, which left Bangladesh to continue with itscomplaints. In 1976, Bangladesh took its case to theUnited Nations, and sponsored a resolution calling onIndia to share more water and consider the interests ofBangladesh in the operation of the Farakka Barrage.The resolution failed to pass, but a Statement ofConsensus was adopted by the UN General Assemblycalling on the parties to resolve the issue peacefully.As a result, in 1977, India and Bangladesh signed anAgreement for a five-year period during which theyagreed to seek a long-term solution to the allocationof water of the Ganges River.

The 1977 Agreement expired in 1982, and in thatyear, India and Bangladesh signed a Memorandumof Understanding, which acknowledged that thisAgreement “had not proved suitable for finding asatisfactory and durable solution” to the problems ofthe Farakka Barrage. To address the river manage-ment issues on an interim basis, both nations agreedto a temporary allocation of water for the 1983–1984dry seasons. This Memorandum also expired, andIndia continued to operate Farakka Barrage in 1985,without a binding legal document in place. A secondMemorandum of Understanding addressed damoperations between 1986 and 1988, but that alsoexpired. The period between 1989 and 1996 passed

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without a formal legal instrument. Finally, in 1996,India and Bangladesh signed a treaty on sharing theGanges River at Farakka (Swain 1998, Salman andUprety 2003).

The 1996 Ganges Treaty, which expires in 2026,establishes a formula for sharing water (see Table 4).Moreover, the Treaty also calls on both govern-ments to attempt to reach water-sharing agreementson another 53 “common rivers”. That the Treaty callsfor future cooperation over the common rivers sharedby Bangladesh and India, from a political angle, issignificant.

After a number of short-term legal instruments,India and Bangladesh have been able to resolve theirlong and bitter dispute over the Ganges through a30-year Treaty. However, almost half of the 30 yearsduring which the Treaty is to remain in force haveelapsed. Yet, no agreement has been reached betweenthe two parties on how to augment the flow of theGanges during the dry season and provide sufficientamounts of water for both parties, which is the cruxof the dispute on the Ganges River. It should also beadded that no agreement on any of the other 53 sharedrivers has thus far been concluded.

B2.1.2 The India-Nepal Gandak TreatyOriginating in Tibet, the Gandaki River flows thro-ugh central Nepal and then empties into the GangesRiver. Draining a large part of Nepal, west ofKathmandu, and the State of Uttar Pradesh, in India,it caused serious flooding problems in its naturalcondition. In 1959, India and Nepal signed a Treatyto build a dam on the Gandaki River for flood con-trol, irrigation, and power generation. The damitself lies entirely within Nepal but very close to theborder with India. The Treaty requires India togenerate power and share it with Nepal, and containsa schedule for the release of water to India for itsirrigation canals. Actually, the Gandak Project irri-gates approximately 143 000 acres (223.4375 sq. mi.)in Nepal and 4.6 million acres (7187.5 sq. mi.) inIndia.

Many Nepalese scholars considered the 1959Gandak Treaty a bad deal for Nepal, because it hadthe effect of curtailing Nepal’s right to Gandaki waterfor use inside Nepalese territory, essentially for trans-valley uses in the months of February to April (Thapa,2002). Article 9 of the Gandak Treaty reads as fol-lows: “His Majesty’s Government will continue tohave the right to withdraw for irrigation or any otherpurpose from the river or its tributaries in Nepal suchsupplies of water as may be required by them fromtime to time and His Majesty’s Government agreesthat they shall not exercise this right in such man-ner as is likely, in the opinion of the parties hereto,prejudicially to affect the water requirements of theProject (the Gandak Irrigation Project) as set out inthe schedule annexed hereto”.

The monthly water requirements provided in theSchedule to the Treaty were either very close orexceeded the river flows barring a few months ofthe monsoon season. This provision had the effectof virtually ending all future prospects for irrigationdevelopment in the Gandaki basin within Nepaleseterritory. Therefore, following protests, the GandakTreaty was slightly revised on 30 April 1964, tolessen its negative impact. Article 9 of the revisedTreaty reads as follows: “His Majesty’s Governmentwill continue to have the right to withdraw for irri-gation or any other purposes from the river or itstributaries in Nepal such supplies of water as maybe required by them from time to time in the val-ley. For trans-valley uses of Gandak waters sepa-rate agreements between His Majesty’s Governmentand the Government of India will be entered intofor the uses of water in the months of February toApril”.

Certainly, the revised Treaty was an improve-ment over the previous one. However, the trans-valleyuses of Gandak water for the months of Februaryto April have still been restricted. Therefore, Nepal’sside has been seeking further revision to drop theclause restricting such use inside Nepal, but to noavail.

Table 4 Availability of water at Farakka (shares of India and Bangladesh under the 1996 Treaty) in (cubic feet per second,“cfs” or “cusec”) (source: Ganges Treaty Annexure I).

Availability at Farakka Share of India Share of Bangladesh

70 000 cfs (1982.18 m3/s), or less 50% 50%70 000–75 000 cfs (1982.18–2123.76 m3/s) Balance of flow 35 000 cfs (991.09 m3/s)75 000 cfs (2123.76 m3/s) or more 40 000 cfs (1132.67 m3/s) Balance of flow

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B2.1.3 The India-Nepal Kosi Treaty Also origi-nating in Tibet, the Kosi is Nepal’s largest river, andthe most important tributary of the Ganges. Drainingthe area east of Kathmandu, it flows into India inthe state of Bihar, where frequent and severe floodshave earned it the nickname “the sorrow of Bihar”.In 1954, India and Nepal signed a Treaty to build adam on the Kosi River to control flooding, generateelectricity and provide water for irrigation. The dam,straddling the border between Nepal and India, wascompleted in 1963, and the responsibility for its oper-ation was vested to India. The Treaty also providedfor an Indo-Nepal Kosi Project Commission to imple-ment the agreement and to resolve disputes (Gyawali2001, Dixit 2008).

The Kosi Treaty, also considered to haverestricted Nepal’s use of waters, was revised on19 December 1966, to re-establish the latter’s rights.Article 4(i) of the Treaty related to the water rightsreads as follows: “[His Majesty’s Government] shallhave every right to withdraw for irrigation and forany other purpose in Nepal water from the Kosi riverand from the Sun-Kosi river or within the Kosi basinfrom any other tributaries of the Kosi river as maybe required from time to time. The Union (meaningIndia) shall have the right to regulate all the balanceof supplies in the Kosi river at the barrage site thusavailable from time to time and to generate power inthe Eastern Canal”.

In spite of the revision, the Kosi Treaty contin-ued to be considered, by the Nepalese, a bad dealwith lots of inherent associated risks. To recall, theKosi Project was a child of the Nehruvian dreamdriving the great infrastructural projects after IndianIndependence, which relied immensely on engineer-ing advances. But, the barrage-building was based onknowledge of an engineering fraternity prevailing onthe non-silting rivers of Europe and North America,and inappropriate to the Kosi. The barrage was thusbuilt at Bhimnagar on the Nepal-India border, butthe task of management was fully entrusted to theGovernment of Bihar, for 199 years (till 2153). Milesof embankment were built on both sides upstream ofthe barrage (known as the “eastern and western affluxbund”) to guide the water to the barrage, to feed twolarge irrigation canals. Downstream, another 125 kmof levees charged southwards on the east and 126 kmon the west to safeguard eastern Bihar from floods.

Indeed, as predicted by many, in August 2008,there was a breach at Kusaha on the eastern embank-ment above the Kosi Barrage in eastern Nepal. Waterflowed out first and impacted adjacent Sunsari District

of Nepal. Later, the breach widened into a 2-kmstretch and the water gushed out, and the inundationaffected millions in seven districts of northern andcentral Bihar (Araria, Katihar, Khagaria, Madhepura,Purnia, Saharsa and Supaul) all the way south to theGanges.

Sadly, over the last fifty years, the silt had contin-ued to flow and build up as a natural phenomenon.Confined by the embankments, and having sloweddown after entering the plains at the point knownas Chatara, the Kosi deposited its silt load on itsbed. Note that, before the construction of the bar-rage, much of it would have been spread over theplains of the surrounding region. Over time, as therelentless and natural deposition of silt continued,the Kosi began to flow on a plateau inside the embank-ments, with the river bed said at places to be up to5 m above the outlying plains of Nepal and Bihar,ultimately resulting in the breach.

Dipak Gyawali, a prominent international waterexpert, considers that the Kosi embankment collapse,flooding entire districts, damaging infrastructure andleaving thousands of people homeless in both coun-tries, was not a natural disaster, but a man-madetragedy. The catastrophe resulted from an unholy mar-riage of three things: the wrong technological choice,bad institutional arrangements and half a century ofpolitical misconduct (Agricultura y Medio Ambiente2008).

Against the backdrop of havoc caused by floodwaters of the Kosi River, India and Nepal decidedto establish a number of mechanisms, including aJoint River Committee at minister level to avert suchcalamities in future. The two sides also decided to re-activate a Secretary-level Joint Committee and set upeight technical committees to be in regular touch overvarious issues concerning sharing of common riverwaters. With an aim of preventing floods, they alsodiscussed ways to properly implement the Kosi Treatythat governs the usage of Kosi River, and agreedto hold pre-monsoon and post-monsoon meetings todeal with issues of floods and early warnings.

B2.1.4 The India-Nepal Mahakali Treaty On 12February 1996, India and Nepal signed a Treaty forthe governance of the Mahakali River, a principaltributary of the Ganges (called the Sarada in India),which forms the border between western Nepal andIndia. The Treaty, which came into force on 5 June1997, addresses the allocation of power from twoexisting barrages (the Sarada and the Tanakpur) and

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the allocation of power from a generation plant tobe built in the context of the Treaty (PancheshwarMultipurpose Project, or PMP).

What is interesting is that the Sarada andthe Tanakpur barrages were already completed, in1920 and 1992, respectively. The Mahakali Treatyonly absorbed the regime established by the 1920Sarada Agreement, the 1991 Memorandum ofUnderstanding and the 1992 Joint Communiquéfor Tanakpur Barrage. The only new substantiveaddition was that it endorsed the idea of constructingthe PMP. Hence, from a structural viewpoint, theMahakali Treaty combines three distinct treatiesrelated to the water sharing of the Mahakali River(the Sarada Agreement, the Tanakpur Memorandumof Understanding and the PMP), and extends thevalidity period of the entire framework for another75 years from its entry into force.

The Treaty endorses the principles of equitableand reasonable utilization, the equitable distributionof benefits, and an obligation not to cause signifi-cant harm. This is also supported by the provisionwhich, acknowledging an obligation not to causeharm, reads: “In order to maintain the flow and levelof the waters of the Mahakali River, each Party under-takes not to use or obstruct or divert the waters ofthe Mahakali River adversely affecting its naturalflow and level except by an agreement between theparties.”

The above provision means that each Party hasan obligation to maintain the natural flow of the river.However, this obligation does not preclude the use ofthe waters by the local communities living on bothsides of the Mahakali River, not exceeding 5% ofthe average annual flow at Pancheshwar. The Treatyacknowledges the right of both Parties to indepen-dently plan, survey, develop and operate any workon the tributaries of the Mahakali River as long assuch use does not affect the rights of the other Party.Thus the Treaty allows each Party to use the water aslong as it does not preclude the rights and interestsof the co-riparian or cause harm or adverse effect tothe other riparian. However, the terms “no harm” and“adverse effect”, not being defined in the Treaty, leaveroom for controversy.

The Treaty restricts unilateral projects along theMahakali River. It states that any project to be devel-oped on the Mahakali River, where it is a bound-ary river, should be designed and implemented byan agreement between the Parties on the principlesestablished by the Treaty. Hence, it is an obliga-tion for either Party to reach an agreement before

commencing any project on the Mahakali River. Itmakes it binding to both Parties to abide by the princi-ples of the Mahakali Treaty (inter alia, the principlesof equality, benefit sharing and no harm). Ultimately,it discourages the unilateral development of the riverand approves the principles of cooperation, consulta-tion and notification.

Setting forth the general principles, the Treatystates that the PMP shall be designed to produce themaximum total net benefit. All benefits accruing tothe Parties with the development of the Project in theforms of power, irrigation, flood control and so forth,shall be assessed, and the costs of the Project shall beborne in proportion to the benefits accruing to each.Thus, assessing the benefits accruing to both Partiesfrom the PMP and sharing the cost in proportion tothe benefits, in turn, emphasizes the notion of shar-ing of benefits from water uses rather than sharing ofwater. The principles of maximum benefit and benefitsharing, together with the principle of mutual bene-fit, acknowledge the principle of equitable utilizationof benefits. Meanwhile, the Treaty states that bothParties may form joint entities for the development,execution and operation of new projects (Salman andUprety 1999).

To facilitate information exchange, coopera-tion and implementation, the Treaty provides for aMahakali River Commission. In defining the juris-diction of the Commission, Article 9(1) states: “theCommission shall be guided by the principles ofequality, mutual benefit and no harm to either Party”.Paragraphs 2 to 4 of Article 9 set out clear guide-lines for the formation of the Commission, as wellas its jurisdiction. According to Articles 9(2) and9(4), the Commission is to be composed of equalnumbers of representatives from both Parties andits expenses borne equally by both. According toArticle 9(3), its functions include exchanging infor-mation and inspecting all structures included in theTreaty, making recommendations for the implementa-tion of the Treaty provisions, evaluating the projects,monitoring and coordinating plans of actions, andexamining any differences arising between the Partiesconcerning its interpretation and application.

B2.2 Governance mechanism of the Farakkaand Mahakali treaties At the outset, it must benoted that incorporating a clear mechanism for dis-pute resolution is a precondition for effective long-term basin management. In many river basins, lackof such a mechanism has made treaties ineffective.In the case of the Ganges, the basin governance is

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fragmented between Nepal and India on the upstreampart, and between Bangladesh and India on the down-stream part. There is no one single commission for theentire river basin.

B2.2.1 The Ganges The Ganges Treaty estab-lishes a Joint Committee and defines its jurisdic-tion for monitoring implementation of the Treatyand exchanging data and information. The JointCommittee, consisting of an equal number of repre-sentatives nominated by the Parties, is entrusted toobserve and record the daily flows below the FarakkaBarrage as well as at Hardinge Bridge. The JointCommittee is required to submit all data collected byit, along with an annual report, to both governments,and is responsible for examining any difficulty arisingout of the Treaty implementation as well as the oper-ation of the Farakka Dam. The Treaty recognizes theneed to cooperate and to find a solution to the long-term problem of augmenting the flow of the Gangesduring the dry season.

The preamble of the Treaty notes that bothcountries wish to share, and optimally utilize, thewater resources of the region in the field of floodmanagement, irrigation, river basin development andhydropower generation for the mutual benefit of theirpeople. Moreover, guided by the principles of equity,fairness and no harm to either Party, both agreeto conclude water sharing treaties/agreements withregard to 53 other common rivers. The Treaty dis-courages unilateral development, and calls for con-clusion of water-sharing agreements on the basis ofthe principles of equity, fairness and no harm, in turn,acknowledging the necessity of coordinated manage-ment of the watercourses. The Treaty further statesthat its sharing arrangements will be reviewed at fiveyears interval or earlier, as required by either Party,and needed adjustments thereto. Both these provi-sions are important, as they endorsed the principles of“equitable and reasonable utilization” and “no harm,or theory of limited territorial sovereignty”.

The Ganges Treaty does not include a clear andspecific dispute resolution and arbitration provision.The preamble of the Treaty mentions that both Partieswish to find a fair and just solution without affectingthe rights and entitlements of either country. ArticleVII states that if the Joint Committee fails to resolvea dispute arising out of the implementation of theTreaty, it should be referred to the Indo-BangladeshJoint River Commission, an entity established in1972. The Commission, which has met annually todiscuss problems and undertake joint investigations

on the lower part of the Ganges River, does not, how-ever, have the power to allocate water. If the disputestill remains unresolved, it should be referred to thetwo governments, which would meet urgently at anappropriate level to resolve it by mutual discussion.The Treaty, however, fails to specify the level of gov-ernment involved and the timeframe for the settlementof the dispute, nor does it bind the Parties to seek res-olution of the dispute. Hence, the Treaty, it appears,chose political means, not legal, to resolve any disputearising from its implementation. Undoubtedly, theabsence of arbitration mechanisms makes this legalinstrument less effective than the Mahakali Treaty.

B2.2.2 The Mahakali The Mahakali Treaty pro-vides a detailed dispute resolution and arbitrationmechanism if any dispute is not resolvable by theMahakali Commission. According to Article 11(2),an arbitration tribunal, composed of three members,conducts all arbitration. One arbitrator must be nom-inated by Nepal, one by India, with neither countryable to nominate its own national, and the third arbi-trator is to be appointed jointly, who shall preside oversuch tribunal. In the event that the Parties are unableto agree upon the third arbitrator within 90 daysafter receipt of a proposal, either Party may requestthat the Secretary-General of the Permanent Court ofArbitration at The Hague appoint an arbitrator, whoshall not be a national of either country.

The inclusion of the Permanent Court ofArbitration in this Article certainly gives a highprofile to the Treaty’s dispute-resolution mecha-nism, which is further strengthened by Article 11(3),according to which the decision of the arbitration tri-bunal is final, definitive and binding. The MahakaliTreaty, however, is silent regarding the venue of arbi-tration, the administrative support of the arbitrationtribunal, and the remuneration and expenses of itsarbitrators. These issues are to be agreed upon by anexchange of notes between the Parties. By providinga relatively elaborate and advanced mechanism, theMahakali Treaty offers a good example for disputesettlement in international rivers.

B2.3 The Brahmaputra Regime To date, nomultilateral or basin-wide international treaty hasbeen concluded for the Brahmaputra. The arrange-ments that exist are all narrow in scope, bilateral,contentious, and mostly fail to deal with water. Theearliest legal instrument affecting the Brahmaputra isthe 1914 Simla Convention, in which Great Britain,Tibet and China met to negotiate boundaries between

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India and Tibet. This resulted in the “McMahonLine”, a line from Bhutan to the Great Bend whichsubstantially moved the border north, making Indiaone of the riparians of the Brahmaputra basin.

In 1949, India and Bhutan signed a Treaty ofFriendship, which exchanges Indian non-interferencein the internal administration of Bhutan for Bhutaneseagreement to seek India’s advice on foreign rela-tions. The Treaty, in fact, is the basis for present-dayjoint hydropower plants on Brahmaputra tributariesin Bhutan exporting electricity to India, an earlyexample of inter-basin cooperation in the region.

In 1954, China and India signed a Memorandumof Understanding (MOU) for sharing Brahmaputrahydrological data for flood protection purposes,which, however, ended with the 1962 Sino-IndianWar. More recently, the two countries have madea number of cooperative arrangements, including a2002 MOU to provide hydrological data to manageflood control, and a comparable 2005 MOU on theLangquen Zangbo, a tributary of the Brahmaputra.China, on the other hand, has also entered into a com-parable MOU in 2006 with Bangladesh in connectionwith the Brahmaputra.

B2.4 The Teesta Regime The Teesta Riveroriginates from Cholamo Lake at an elevation of17 487 ft (5330.04 m) above sea level (a.s.l.) in theHimalayas in India. Fed by several rivulets, which risein the Thangu, Yumthang and Donkia-La ranges, theriver then flows up to Teesta Bazaar. At Teesta suspen-sion bridge, the river is met by its main tributary, theRangeet River. At this point, it changes course south-wards flowing entirely into West Bengal. The riverhits the plains at Sevoke, where it is spanned by theCoronation Bridge, which links the northeast Indianstates to the rest of India. The river then courses itsway to Bangladesh, before finally merging with theBrahmaputra at Fulcherry. Among the transbound-ary rivers, the Teesta is the fourth major river inBangladesh after the Ganges, Brahmaputra and theMeghna.

An Agreement on the ad hoc sharing of the Teestawaters between India and Bangladesh was finalizedduring the 25th meeting of the Indo-Bangladesh JointRivers Commission (JRC), and was signed on 20 July1983, in Dhaka. But it was never put into practice.Nonetheless, the JRC discussed the sharing of theTeesta waters and recognized that sharing will needto be based on scientific studies that were to be com-pleted by the Joint Teesta Committee before the endof 1985. Pending completion of scientific studies, in

a spirit of friendship and good neighbourliness, an adhoc sharing of the Teesta flows during the dry sea-son, to be valid until the end of 1985, was agreed byallocating 36% for Bangladesh, 39% for India and aremaining 25% left unallocated for the maintenanceof the flows. These ad hoc shares and the unallo-cated portions were subject to re-allocation after thecompletion of the scientific studies.

It was further agreed that the secretaries in-charge of irrigation of the governments of India andBangladesh would meet urgently for incorporation ofthe ad hoc sharing arrangement into a formal doc-ument, spelling out the locations at which sharingwould be made effective, detailing the modality forflow measurement arrangements for monitoring theimplementation, and for presenting their recommen-dation in 90 days for consideration of the JRC.

In a meeting held in Delhi, in January 2004,Bangladesh raised fresh issues with the Indian side,making a major shift from its earlier stances on the“interim agreement” reached in 1983 on the man-agement of the Teesta. Bangladesh proposed, in themeeting, that 10% of the Teesta waters be kept fornatural flow, 39% for India, 36% for Bangladesh andthe rest be distributed proportionately. However, Indiainsisted that the scientific studies be first completed.

Whilst discussions are ongoing sporadically, theTeesta has been drying up at different points. Oncemighty, it is now bereft of water, following construc-tion of the different barrages and dams causing anegative impact on its free flow on its 414-km jour-ney to the sea. Among such, the Teesta Barrage inBangladesh, the Teesta Barrage at Gojoldoba in WestBengal, and the two hydro-electricity dams in Sikkimare the most significant ones. Due to the obstruc-tions to its water flow, the Teesta, heavily silted, haschanged its courses at many places, especially inthe lower catchment, annually eroding both of itsbanks and then engulfing thousands of hectares ofland. The ambitious objective of both the Bangladeshand the Indian authorities of irrigating thousands ofhectares of land to increase agricultural productiondid not help, and the river is gradually dwindlingwith scarcity of water even during rainy seasons. Itis feared that the Teesta barrages, both in Bangladeshand India, may lose their efficacy soon, because theriver may die in terms of water flow.

Thus far, although attempts to establish clearregimes in connection with the selected segmentsin the GBM basin area have been made, thesmooth functioning of the regimes has proven to bedifficult at best. As such, therefore, contentious issues

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transcending countries within the area still remain,leaving room for further tensions.

B3 POTENTIAL FOR FURTHER CONFLICT

B3.1 The river linking project Emboldened byan Order of the Indian Supreme Court issued on 30October 2002, in response to a public interest lit-igation writ, and in order to cater for its internalneeds for water, the Indian Government has pro-posed linking the Ganges River with the dry areasof the country in the south and west. This NationalRiver Linking Project (NRLP) involves connecting14 Himalayan rivers in the north and 16 peninsularrivers in the south. The Project would add some-where between 35 × 106 ha and 37 × 106 ha ofirrigated land, generate 34 × 106 MW of electricityand increase navigational efficiency, apart from con-trolling floods and eliminating chances of drought. Ifand when completed, the Project would become oneof the largest inter-basin transfer projects in the world.Two points of caution are, however, warranted. First,the Project is still subject to a series of legal and polit-ical controversies amongst the different States withinIndia (Khalid 2004, Shawkat 2006). Second, most ofthese rivers, like the Ganges, begin in the HimalayanMountains and, therefore, India will need to secureconcurrence of other riparians, which may not onlybe difficult, but also full of tension and conflictingpositions.

B3.2 Kalapani issue Worth adding in this con-text is a dispute between India and Nepal involvingabout 75 km2 of land in Kalapani, where China, Indiaand Nepal meet, that has been lingering for manyyears. Indian forces occupied the area in 1962 afterthe Sino-Indian border war. Three villages are locatedin the disputed zone (Kuti, Gunji and Knabe).

The Kalapani River borders the Nepalese zoneof Mahakali and the Indian State of Uttarakhand. ATreaty signed by Nepal and British India in 1816(Sugauli Treaty) described the Mahakali River asNepal’s western boundary with India. Subsequentmaps drawn by the British surveyors showed thesource of the boundary river at different places. Indiaand Nepal differ as to which stream constitutes thesource of the river: Nepal regarding the Limpiyadhuraas the source; India claiming the Lipulekh; Nepalclaiming the source of the Mahakali River to be westof Kalapani, while India claiming it to be east. It isthis discrepancy in locating the source of the riverthat has led to a boundary dispute between India and

Nepal, with each country producing maps supportingits own claims.

The dispute intensified in 1997 when theNepalese parliament considered the Mahakali Treatyfor ratification. India and Nepal have since held sev-eral meetings to resolve the dispute, but no solutionhas been found. Although this Indo-Nepal disputeappears to be minor, it was aggravated in 1962 bytensions between China and India. Because the dis-puted area lies near the Sino-Indian frontier, it gainedstrategic value.

B4 CONCLUSION

As can be concluded from the foregoing discussions,the transboundary water relations amongst the GBMriparians on several of the rivers and tributaries havegenerally been slow and difficult. If the agreementsbetween India and Bangladesh have mainly focusedon water sharing, those between India and Nepal havebeen more integrated with a specific focus on floodcontrol and irrigation.

However, the transboundary water managementcomplexities that dominate the South Asian coun-tries as a whole essentially result from a series ofpolitical changes. Their shares of sufferings, due tospecific allocation and governance problems resultingfrom political changes over time as well as increasingcompeting needs, have also led to continual conflict.The legal framework developed in the course of time,although moderately successful in deterring and post-poning conflicts, has not been able to manage thecompeting water resource demands by fairly satisfy-ing the concerns of all states and sub-sovereigns.

C MANAGING CONFLICTS THROUGHCOOPERATION: A NEW PARADIGM

While legal systems can generally create a frame-work for national and international cooperation toaddress common problems, the case of water is spe-cial, particularly because, unlike other areas, gover-nance systems on water are highly contextual andexcessively dynamic in nature. As such, the imple-mentation deficit for exported water laws is often highbecause most such transplantations are not tailoredto the contexts to which they are transferred. Whathas worked in Europe is not sure to work in Africaor Asia. Since the individual importance, scope, rel-evant factors, procedures and forms of managementvary from country to country, and since each sharedwatercourse is unique in its characteristics, a solution

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applicable for all will also not be possible. Countriesand regions have to find solutions from their ownpragmatism. South Asian countries will also, there-fore, need to devise, themselves, strategies to dealwith their specific types of conflicts and cater for theirspecific competing needs. They may attempt to do soby learning from others and by being more proactiveand creative in their approach, in a number of ways.

C1 TAKING LESSONS FROM EXPERIENCEOF OTHER COUNTRIES

Research on conflicts over transboundary waters sug-gests that a change in resource environments, whichoutpaces the capacity of existing institutions to dealwith that change, is one major cause of tension.History offers ample examples in which the absenceof mechanisms to deal with change has led to con-flicts between countries. The 1944 Treaty between theUSA and Mexico over three shared rivers (Colorado,Tijuana and the Lower Rio Grande) is one suchexample. Indeed, even after including a number ofmechanisms to address flow variability, the agree-ment could not cope with 10 consecutive years of lowflows in the 1990s. The result was a growing waterdebt for Mexico and calls on both sides to renegotiatethe Treaty. Similarly, low water levels on the Gangesin 1997, combined with historically-engraved mutualsuspicion between the parties, threatened the con-tinuation of the Ganges Treaty signed just one yearearlier (Salman and Uprety 2003). While both treatieswere legally binding on the parties involved, contro-versies about their implementation led to a generalatmosphere of mistrust.

Research further suggests that most conflictsrelated to water sharing remain unresolved due tolack of norms, in shared-water agreements, to man-age water flows. However, while the importance ofnorms is acknowledged, studies also reveal that manyagreements lack mechanisms to deal with changes inresource availability and flexibility in treaty imple-mentation that provide opportunities to defuse thepotential conflict between states. In this context, aninteresting study (Drieschova et al. 2008) has exam-ined the use of variability management mechanismsin transboundary water treaties. Reviewing how adap-tive governance can be achieved through the incorpo-ration of flow variability management mechanisms,it has used the resulting typology to analyse thecommonality of mechanisms, and their variation, toaddress flow variability in 50 treaties signed between1980 and 2002. Finally, it has presented a model

for the choice of governance mechanisms to addressvariability, discussing the likely advantages and disad-vantages of each, and providing insights to elementsthat can also be beneficial to others. It may, therefore,be useful for South Asian countries to also be cog-nizant of the main ideas deriving from the above studyon experience of other countries and regions in theirtreaties dealing with the management and sharing ofwaters, and to take relevant lessons therefrom to adaptto their own needs.

C1.1 Flow variability and sharing manage-ment through built-in flexibility Many countriesdepend upon water originating outside their bor-ders. Downstream riparian states in particular, oftenstressed by land and water development occurring inthe upper parts of the basins, feel vulnerable to ris-ing flow variability (UNEP 2006). Because of this, theconcerns about variability and the institutional mech-anisms to manage it cooperatively have long been inthe agenda of the community of riparians (Drieschovaet al. 2008). As early as 1863, the Netherlands andBelgium, for example, made allocation of the Meuse’swater conditional on annual availability.

The capacity of countries to adapt to flow vari-ability largely depends on the degree of flexibilityincorporated in governance systems. Flexibility canmean either the ability to change the rules of thegame (for instance, allowing for the incorporation ofnew scientific knowledge), or the option to apply avariety of policies in the face of changing conditions(as it was in the case of Baglihar). Since transbound-ary agreements are typically rigid instruments thatcan be modified only under difficult circumstances,the need for flexibility in their design is welcome, ifnot necessary (McCaffrey 2001). In addition to play-ing a direct role in resource management, flexibilitycan also reduce the sovereignty costs of negotiations(most thorny amongst riparians) and allow regimecreation to move forward, even if different issues ofuncertainty are not fully resolved.

C1.2 Adaptive allocation mechanism Whileallocation rules and mechanisms to change abso-lute supply are critical for variability management,there are also other means that have been availed bystates to address resource variability. For example,developing formalized communication between par-ties through the establishment of joint managementinstitutions can overcome the rigidity of water treatiesand serve as a venue for conflict resolution. This canbe done by including a provision in the treaty itself

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or through separate instruments. Such institutions canwaive the need to codify, during the negotiations,exact quanta of current and future resource shar-ing, thereby reducing the transaction costs associatedwith sealing agreements. Establishing conflict resolu-tion mechanisms and requiring data exchange are twoother means through which communication channelscan be strengthened. While conflict resolution mech-anisms provide an agreed forum for the discussion ofchanges in resource conditions not envisioned in theinitial agreements, information exchange and clearercommunication can reduce the potential impacts offlow variability by facilitating early identification offuture trends, and offsetting the problem of asymmet-ric information between riparians, which can hindercooperation and lead to sub-optimal outcomes.

Perhaps due to the significance it holds, manage-ment of flow variability has often been an importantcomponent of water treaties. For instance, article40(3(d)) of Annex III to the Israeli-Palestinian InterimAgreement of 1995 on the West Bank and the GazaStrip (now, for all practical purposes, terminated) pro-vided for “adjusting the utilization of the resourcesaccording to variable climatological and hydrolog-ical conditions”. Similarly, the Agreement betweenthe governments of the Republic of Namibia and theRepublic of South Africa on the establishment of aPermanent Water Commission states in Article 3(1(f))that it is one of the functions of the Commission toadvise the parties on “measures that can be imple-mented by either or both Parties to alleviate short-term problems resulting from water shortages in anyriver of common interest to the Parties during peri-ods of droughts”. Also, the Agreement on the TeestaWaters between Bangladesh and India establishedflexible methods for allocation based on percentageshares of flows.

C1.3 Broadening coverage Since states givevarying levels of priority to their specific problems(due to geopolitics, supply versus demand situation,ideology and so forth), broadening the scope of coop-eration to go beyond water allows concessions tobe made by each party on some issues in exchangefor gains on matters they perceive of higher priority(borders issues, trade, transit, energy, tourism, peaceand friendship and so forth). For example, concur-rent discussion on several elements of a treaty or ofseveral treaties can allow trade-offs as one possiblemechanism for solving conflicts. The varying stake-holders will be extra vigilant on the gamut of issuesbefore rejecting a treaty provision when conditions

change, since they will have more to lose (because ofinter-connectivity of issues or treaties in the gamut).Herein, one realizes the obvious advantage of takingan integrated approach in water resources manage-ment and negotiations (the Mahakali, and to a lesserextent, the Kosi and the Gandak treaties between Indiaand Nepal are interesting examples).

C1.4 Redefining availability Modifying thelevel of resource availability has also been an alter-native to allocating existing resources. In this context,efforts are made in changing the levels of availablewater, for jointly developing infrastructure to eitherincrease supply (in the case of shortage) or decreaseit (in the case of flooding). This, in turn, can mitigatethe risk inherent to changing supply or demand con-ditions, and reduce the possibility of protracted andunwarranted conflicts (Wolf 1998, 1999). Riparianscan take joint measures, for instance, to increase watersupply but may avoid specifying, in the agreements,the form that specific cooperation would take. In thisspirit, Bangladesh and India stated their intent toincrease water supply of the Ganges River during dryperiods but did not specify how or when such workwould take place, thus avoiding the need for speci-fying such detail during treaty negotiations. Anotherset of agreements addresses the opposite force ofvariability (i.e. flooding). The establishment of jointflood-control mechanisms and warning systems tomanage unexpected high flows happens to be a majortheme in many international water treaties. The recentdecision by India and Nepal to be more proactive inthe context of the Kosi flooding is another case inpoint.

With increasing vulnerability due to constantwater variability and scarcity, the ability of countriessharing an international river to adapt will dependpartly upon the type, number and effectiveness ofmechanisms to address the variability incorporatedin water agreements. Countries have built mecha-nisms to allow changing the rules of the game, or toenhance the capacity to absorb unexpected shocks.Some of the mechanisms are based on flexibility,while some others are based on enforceability (Dinar2005). However, all ultimately have the same objec-tive of averting and resolving conflicts, by all meansavailable.

The redefinition of availability of water needsalso to be viewed in the context of climate change.Indeed, problems of water sharing and management ofwater resources in South Asia have become even morecomplex because of the region’s extreme vulnerability

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to the consequences of climate change. According toUNEP, for instance, South Asia is one of the mostdisaster-prone regions in the world. Climate projec-tions for the future highlight increase in the frequencyand intensity of extreme weather events, such asdroughts, floods and severe rainstorms (UNEP 2007).The increases in rainfall are likely to have an impacton water recharge rates, and to exacerbate and skewwater availability data for those countries that arealready water stressed (either shortage of water dur-ing dry season or problem of flood during wet season),which may lead to further tension amongst countries.

The Himalayan range also contains high-altitudeglaciers that supply water to many rivers in Asia.As such, many people are dependent on glacialmelt water (particularly during the dry season).Accelerated glacial melt due to climate change willweaken the perennial nature of many of the rivers, andwill likely further adversely affect those dependenton the water resource. In Nepal, for instance, meltingglaciers are filling glacial lakes beyond their capac-ities contributing to Glacial Lake Outburst Floods(UNEP 2007). In the same vein, according to theIntergovernmental Panel on Climate Change, in India,Pakistan, Nepal and Bangladesh, water shortageshave been attributed to many issues (rapid urbaniza-tion, industrialization, population growth, inefficiencyin water use), which will be aggravated by changingclimate and its adverse impacts on demand, supplyand water quality. As such, changes in climate andits variability will continue to challenge the ability ofthese countries to meet growing demands for water.(IPCC 2008, p. 86), which will have severe down-stream consequences. Available records also suggestthat Gangotri Glacier (the source of the Ganges) isretreating continuously (IPCC 2008).

However, given that the existing treaties weresigned before the issue of climate change got promi-nence, they do not provide for an in-built mecha-nism to deal with the situation. As such, therefore,the co-riparian countries may have to start think-ing of managing the emerging problems, associatedwith climate change, with flexibility, adaptability, andperhaps, re-negotiation or re-interpretation.

C2 CHOOSING AN ADEQUATE METHOD

Because of the limited availability of water, allo-cating shared waters in a manner acceptable to allparties is one of the most difficult aspects of trans-boundary water treaty negotiations. And the mannerin which allocations are codified can have significant

implications on the resilience of agreements. Threemechanisms are commonly suggested for address-ing allocations. These mechanisms are direct allo-cation, indirect allocation and allocation throughbroad concepts and ideas. The direct allocation, underwhich the division of the quantum of waters betweenco-riparians is explicit, implies establishing a cor-relation between water availability and percentagesof flow (which themselves vary depending on wateravailability), and including a provision in the treatythat in the case of insufficient water, the deficit will berecouped in the following period. The indirect allo-cation is used to establish a clear process throughwhich allocation will be determined, but without cod-ifying the specific quantities or proportions of shares.Consultations as a step to determine later allocations,an obligation to notify co-riparians when new waterneeds arise, a requirement for co-riparians to con-sent to any increased water use, prioritization of wateruses and vague commitments on the need to allo-cate shared-water resources can all be considered theelements of indirect allocation mechanisms. Lastly,establishing broad ideas or concepts, for determininghow water should be allocated now or in the future(formula-based), can also be a mechanism chosen bytreaties. These principles include concepts such asequitable and reasonable use, rational use, sustain-able use, the requirement not to cause significant harmand the protection of existing uses. Water relationsamong Bangladesh, India, Nepal and Pakistan, it maybe noted, all show a mix of the above pattern.

D GENERAL CONCLUSION: VISION FORCOOPERATIVE DEVELOPMENT

No doubt, if allocation has been a major problem forSouth Asian countries, regime management has beena serious challenge, especially due to sovereigntyconcerns, competing demands and deeply-rooted mis-trust. This has caused these countries to continu-ously adopt a defensive posture which, instead offacilitating cooperative development, has a tendencyto impede development, even on, otherwise, non-controversial areas. Therefore, the time is ripe for thecountries of the region to consider new techniquesto develop, design and strengthen their legal regimesregarding the shared water resources on the basis ofprinciples established by customary law, the codifiedlaw and prevailing international practices. The ironyis that none of the South Asian countries is a partyor signatory to the UN Watercourses Convention,the only international “framework law” applicable

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to transboundary waters. Also, fostering a regimefor broad integrated regional cooperation, which alsofacilitates the implementation of the different prin-ciples and concepts of international law applicableto transboundary water resources, appears warranted.Such a regime, to be more useful, will need to bedevised in conjunction with the exercise of harmo-nizing legal regimes, both intra-regional and national.In this context, the institutional framework of theSouth Asian Association for Regional Cooperation(commonly referred to as SAARC), which has alsolaunched an initiative for regional water cooperation(Al Habsy and Uprety 2010), should become a usefulmechanism.

It is appropriate to note, here, that the “SouthAsia Regional Water Vision 2025” (a document form-ing part of the Global Water Vision 2025, preparedunder the aegis of the World Water Council (WorldWater Council and the Global Water Partnership1999), and “Asia’s Next Challenge: Securing theRegion’s Water Future”, a Report by the LeadershipGroup on Water Security (Leadership Group on WaterSecurity in Asia 2009), have both concluded that thereis a need, in South Asia, for a regional water pol-icy as well as for institutions for cooperation in waterresource planning and management for the interna-tional rivers. According to these documents, whichprimarily reflect the views of stakeholders and civilsociety from concerned states, for cooperation onshared water resources to be fruitful, a comprehensive“regional” approach is needed. For these documents,such cooperation requires a series of measures to betaken at the basin level, focusing on watershed man-agement, water quality, and land-water interaction.The documents further suggest that the managementof shared river systems should grow beyond thesphere of national sovereignty and bilateralism, andmust be addressed at the “regional level” to achievethe best possible planning and use of available water,including through a regional agency.

In this context, the time may be ripe for the estab-lishment of a region-wide institution for shared waterresources, an entity that would provide mechanismsand processes for exchange of data and information,and possibly for planning and coordinating actions,measures and projects on the shared watercourses, aswell as for dealing with emergencies, such as floods.The experience of the Southern African DevelopmentCommunity (SADC) Water Division, in Botswana,can also provide guidance (Salman 2001). The pro-posed regional institution will not only serve the inter-ests of all riparians as a group, but should also foster

multilateralism and bring regional practice closer tothe global one. In this endeavour, one can also fore-see a significant and proactive role for internationaldevelopment institutions in providing technical assis-tance and funds to strengthen such an institution, thusbuilding a valuable and technically motivated counter-part for them on matters of water. These endeavoursare certainly difficult, as they revolve around the com-plexity of sovereignty versus technical necessity, orpolitical strategy versus good faith. However, theyare worth trying, particularly among the South Asiancountries sitting at a crossroads of water resourcesissues.

No doubt, relentless regional competition formore water will continue to intensify, fuelled by highpopulation growth and environmental degradation.The challenges of climate change and the meltingglaciers will add to the problems already faced bythe region. Nonetheless, these problems and chal-lenges can, and indeed should, act as a catalyst forthe South Asian countries to nurture cooperative rela-tions and find long-term solutions for managing theirtransboundary waters, in a manner that would rea-sonably and equitably address the needs and demandsof all of them. Building on their experience over thelast 50 years, the countries of the region have thepotential to put in place a collaborative governancestructure for their shared water resources. However,this would require a major paradigm shift, from astate to a region-centric approach, and from isolatedto integrated water resources management. With theirexperience, the paradigm shift, and the political will,the South Asian countries should be able to builda regime for the sustainable sharing and manage-ment of their watercourses, and for reducing, if noteliminating, conflicts, disputes and clashes within theregion.

REFERENCES

Agricultura y Medio Ambiente, 2008. Poor planning and corrup-tion caused Kosi flood. Agricultura y Medio Ambiente, 21September 2008.

Ahmed, I., Dixit, A., and Nandy, A., 1999. Water, power and peo-ple: A South Asian manifesto on the politics and knowledge ofwater. Water Nepal, 7 (January–August), 113.

Al Habsy, S.N. and Uprety, K., 2010. Sustaining development andpeace. SAARC: international, institutional and legal perspec-tives. Dhaka: University Press Limited.

Daily Times, 2005. Pakistan, India discuss Wullar dispute. DailyTimes, 29 June 2005.

Dellapenna, J. and Gupta, J., 2008. Toward global law on water.Global Governance, 14, 437–454

Dinar, S., 2005. Patterns of engagement: how states negotiate interna-tional water agreement. Report, Austria: International Institutefor Applied Systems Analysis.

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