ON June 21, Indian High Commissioner Pinak Ranjan Chakrabarty
provoked a new debate by questioning the applicability of international law to
the Tipaimukh Dam issue. According to him, there does
not exist any international law that could prevent
According to Article 38 of the Statute of the
International Court of Justice, bilateral or multilateral treaties are the
primary expression of international law. The 1996 thirty-year Ganges Water
Sharing Treaty was signed by the heads of states of
The 1996 treaty is the relevant law for assessing the
validity of the proposed construction of Tipaimukh or
any other structure on rivers shared between
As the International Laws Commission's Commentaries on the Draft of 1997 Watercourse Convention provides, pledges to apply the principle of equitable utilisation and no-harm essentially presupposes obligations of conducting prior consultation and conclusion of agreement with co-basin states before undertaking any planned measures on a shared river like the Barak.
Therefore, construction of the Tipaimukh
Pinak Ranjan, on the same occasion, also dismissed the applicability of the 1997 UN Watercourse Convention by saying that it has not yet entered into force. His statement is partially true; in the absence of required number of ratifications by states for this Convention, it is not yet binding as an "international treaty law." However, there is every reason to argue that the Convention, being adopted by a vote of 103-3 in the UN General Assembly, is applicable as "evidence of international customary law" to Tipaimukh or any such project on shared rivers.
This Convention was drafted by the International Law Commission, which was constituted under Article 13(1) of the United Nations Charter. The draft law produced by this Commission represents either existing or emerging rules of international law (ILC Statute, Article 15); various verdicts of the International Court of Justice have already expressed such a view (for example, the 1997 ICJ verdict regarding the River Danube dispute between Hungary and Slovakia).
The 1997 Convention put heavy emphasis on comprehensive cooperation for equitable utilisation of any trans-boundary watercourse, no-harm to all the co-basin states, and adequate protection of the watercourse itself. Therefore, a project with the magnitude of impact upon the environment that may result from the operation of the Tipaimukh Dam cannot be constructed unilaterally by any basin state.
The 1997 Convention is supported by recent state practices in different parts of the world. By the terms of 1992 Trans-boundary Watercourses Convention, adopted under the auspices of the UN Economic Union for Europe, there is no scope to undertake planned measures on shared rivers without conducting a comprehensive environmental impact assessment, providing full information to all the concerned basin states and ensuring that there are no serious harmful effects on the ecology as well as the co-riparian states.
In the last two decades, various countries in Africa (e.g. 1995 Zambezi River Protocol, 1997 Lake Victoria Program), South East Asia (e.g. 1995 Mekong River Agreement), and South America (e.g. 2004 Program for the Pantanal and Upper Paraguay River) have emphasised basin-wide cooperation for ensuring sustainable utilisation and management of international watercourses.
The cooperation and no-harm principles are more
emphatically endorsed in a number of international environmental instruments to
Provisions for preventing and mitigating harm related with the utilisation of shared water systems are also found in other conventions, including the 1992 Framework Convention on Climate change and the 1994 Convention on Desertification.