Tipaimukh Dam and international law

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 India from constructing the Tipaimukh Dam. His argument appears totally erroneous in view of the status of the 1996 Ganges Water Treaty between Bangladesh and India as well the relevance of the applicable international customary laws.

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 Bangladesh and India and thus, according to the 1969 Vienna Convention on The Law of Treaties, it has the full backing of international law. Both Bangladesh and India are bound to abide by this treaty until 2026.

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 Bangladesh and India. In addition to making provisions for the Ganges water-sharing, the treaty enshrines, in Article IX, a provision which runs as follows: "Guided by the principles of equity, fairness and no harm to either party both the governments agree to conclude water sharing Treaties/Agreements with regard to other common rivers."

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 Dam by India on the upstream of the Barak, which, after entering Bangladesh, continues to flow as Kushiara and Surma, will be illegal unless it is preceded by prior consensus with Bangladesh. As part of the Tipaimukh project, if India builds a barrage over the Barak River, the resulting disastrous consequences on Bangladesh will be a graver violation of the "no harm" principle acknowledged by both countries in the Ganges treaty.

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 which both Bangladesh and India are parties. Among them, Article 5 of the 1972 Ramsar Convention requires the contracting parties to consult each other about implementing obligations arising under the Convention in respect of trans-boundary wetlands, shared watercourses and coordinated conservation of wetland flora and fauna, and Article 3 of Biodiversity Convention provides that "states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction."

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.

If India decides to ignore the above international rules and norms and undertakes the Tipaimukh project, it might prove disastrous for India itself. The sources of several large rivers, such as the Brahmaputra, are in China, which is reportedly considering undertaking construction of big dams on some of those rivers.

If India claims that there is no international law prohibiting Tipaimukh, then how will it oppose China's projects, which would cause serious damage to the environment and economy of India. Indian newspapers are already warning their government about this facet of the problem. For us, the question is: are we ready to devise the necessary strategies with a holistic vision of the problem?

Asif Nazrul is Professor of Law, Dhaka University.