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Sunday, April 9, 2017
http://dailyasianage.com/news/55475/ratification-of-un-convention-on-the-law-of-theinternational-watercourses
Ratification of UN convention on the law of the international watercourses M S Siddiqui
Prime Minister Sheikh Hasina underlined importance of greater collaboration on development and utilizing trans-boundary freshwater resources for economic development while she was speaking a discussion on World's Underwater in the sideline of World Economic Forum (WEF) at Devos, Switzerland on 18th January 2017 (FE Report on 18th January). The Daily Asian Age also reported on 4th April 2017 that The Two PMs of Bangladesh and India has agreed that the water management should under regional co-operation in South Asia. Water is today the most important global resource and the dispute increasing over rights on water. Abstractions of water from rivers have tripled in the past 50 years, mostly for irrigation. The entire
flows of some rivers are now being taken for human use. And the natural flows of many others are disrupted by hydroelectric dams that only allow water to pass when the dam owners want electricity. Users should keep some water as "environmental flows" to maintain freshwater fisheries and wetlands. The dispute over river and water exist throughout the world. More than 40 percent of the world's people live in 263 river basins that straddle international borders. The Ganges, Danube, Rhine, Congo, Nile, Niger, and Zambezi rivers all pass through nine or more countries. Tran boundary rivers contain 60 percent of the world's river flows - for two-thirds of them, there are no agreements on water sharing. Bangladesh sharing fifty-four rivers originating from the Himalayas in most cases with India. The trans-boundary rivers flow through Indian territory, but India did not come into agreement with Bangladesh on the blockage or diversion of river water. An Indo-Bangladesh Joint River Commission (JRC) has existed but nonfunctioning since 1972. India constructed the Farakka Barrage in 1975 in order to divert a portion of dry season flow to increase the navigability of Calcutta port. When the Barrage went into operation in 1975, the fresh water supply of the Ganges decreased considerably, with a number of consequent effects in the south-west part of Bangladesh. Moreover, agriculture, navigation, irrigation, fisheries, forestry, industrial activities, salinity intrusion of the coastal rivers, ground water depletion, river silting, coastal erosion, sedimentation as well as normal economic activities have been adversely affected. The construction of proposed Tipaimukh dam on the trans-boundary Barak River has raised hue and cry both in Manipur state in India and in Bangladesh. According to experts, the construction of the dam in a geologically sensitive zone, adjacent to the Taithu Fault, is a major concern of earth quake. Bangladesh has only one water sharing treaty with India on the River Ganges. Despite agreement, India has been diverting water according to its will, depriving Bangladesh from its just share during dry season. India is reluctant to follow the bilateral agreement with Bangladesh and also violating the Barcelona Convention on the Regime of Navigable Waterways of International Concern, 1921. The Barcelona Convention, article X, contains the idea of sharing downstream and even upstream benefits, providing that where a state is obliged under the Convention to take steps to improve the river or is put to expense to maintain it for navigation, it is entitled to demand a reasonable contribution to the costs involved. The Convention on the Law of the Non-navigational Uses of International Watercourses was adopted by the General Assembly of the United Nations on 21 May 1997. The law governing international watercourses will take either of two general forms: treaty law or customary international law. If the states sharing an international freshwater resource are not parties to an applicable treaty, their rights and obligations are governed by customary international law. Currently, the best known multilateral international water law agreement is the 1997 United Nations Convention on the Law of the NonNavigational Uses of International Watercourses. The Convention applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters. The principles laid down by the convention are: Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.
Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention. The utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures. Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism. One state may not intentionally cause harm to another through, for example, flooding or deliberate releases of toxic pollution, questions are sometimes raised about whether one state's use that reduces the available supply in another state is prohibited by this norm. The better view is that the latter situation is governed first and foremost by the principle of equitable utilization. If harm is caused through a pattern of utilization that is otherwise equitable and reasonable, it should not be prohibited. What is equitable and reasonable in any given case may be determined only by taking into account all relevant factors and circumstances-both natural (e.g. climate, hydrography) and human-related (e.g. social and economic needs of the riparian states, effects of uses in one state on co-riparians, existing and potential uses). In the case namely -Gab‌Ăkovo-Nagymaros Project (Hung. v Slovk.), 1997, the International Court referred to a riparian state's "basic right to an equitable and reasonable sharing of the resources of an international watercourse." This decision affirm each riparian state to ensure that its use is equitable and reasonable visĂ -vis other riparian states. International Court has referred the convention in the judgment means it has got a judicial ratification. There is landmark international agreements include the 1992 United Nations Economic Commission for Europe's Convention on the Protection and Use of Trans boundary Watercourses and International Lakes, and the historically important 1966 Helsinki Rules to resolve dispute over water. The Convention on the Law of the Non-navigational Uses of International Watercourses adopted by the General Assembly of the United Nations on 21 May 1997 was pending for ratification of minimum 35 UN member countries since adoption in 1997. Bangladesh voted to pass the resolution in general assembly of UN. Recently Vietnam has ratified as 35th signatory and it will become international law mid of August 2014. India is naturally not in favor of this convention. The irony of fact is that Bangladesh not yet ratified it through approval in the Parliament.
Bangladesh can get benefit out of this convention in negotiation sharing water with India, China, Nepal and Bhutan. The reason not yet explained by authorities of different governments in power since 1997 why they did not ratify it. Bangladesh should ratify without wasting a single moment. The writer is a legal economist. He can be reached at mssiddiqui2035@gmail.com