Analysing the effect of Nepal's election 2022 on its foreign policy
March 02, 2023
11 December, 2023
As the world progresses in terms of population, technology and infrastructure, the demand for water diversifies and increases exponentially. Be it for individual usage on a daily basis to electricity generation and manufacturing purposes, the global demand for water rises at a rapid rate, one which becomes increasingly hard to meet due to the limited, unevenly distributed amount of freshwater available to us. The rapid pace of progress also leaves countries scrambling to secure their water resources, often leading to disagreements and conflicts with other countries over the use of common water resources. Disputes over the use of water resources which do not respect or follow the political boundaries of nation-states is testimony to the irrefutable relation between water and the progress of modern societies. Even the beginnings of mankind’s sedentarization is associated with their proximity to water, with the world’s oldest civilisations tracing their origins to settlements on river banks.
Water is a public good, a resource that is to be available to all, is hard to obtain or possess individually and needs collective management. This collective management is a process that has been and continues to be done between countries for the preservation of common water resources, one that has also caused differences between countries over the years. Trans-boundary issues like the sharing of water resources become inexplicably linked to regional and even international geopolitics, involving countries that are unequal in size, power and influence in global politics. The focus on regulating the use of water resources between states has become more than about how the resource is used to the water resource itself. In the case of rivers, co-basin states are interdependent on each other for the preservation and maintenance of common water resources. Some of the most common causes for countries failing to cooperate in the area of transboundary water management include non-cooperation, violation of international law, hydro-hegemony and imbalances of power between the states involved. Such conflicts regarding the use of transboundary water resources are often solved through negotiations, third-party interventions and institutional approaches.
The region of South Asia is one that has been water-stressed for years, with a rising population and economy and inadequate water resources to sustain the needs of the region. Variations in climate like monsoons and droughts also influence this water supply. The discourse on sharing water resources in the region is one that has an element of distrust especially between upstream and downstream neighbours. While there are agreements on the sharing of common water resources, there still exists a need for new approaches to issues of sharing water resources and resolving disagreement between states on sharing these resources. One of the ways in which states attempt to come to a consensus on this issue is through agreeing upon and using some common principles of international law, to reach an understanding on the usage of water resources between riparian states and ensure that the parties involved their part of the agreements in a legal, rational manner without letting the situation escalate into various forms of violent conflict.
However, in light of issues like climate change, development and urbanisation, the uneven distribution of water resources and the existing political tensions in the region, the implementation of agreements regarding the use of transboundary rivers has been slow and also has been subjected to a number of debates over the years regarding their effectiveness in resolving river disputes between the South Asian states. International law comes as part of this broader discourse, as its principles are used for drafting these agreements and in resolving disputes and disagreements between countries through peaceful methods like negotiation, arbitration and third-party mediation, according to the circumstances. It also becomes necessary considering how the countries of South Asia have become water-stressed over the years, while being one of the most rapidly developing areas with an extremely high population, which as a consequence, increases the demand for freshwater resources. This article discusses the situation of river disputes in South Asia, from the perspective of international law, and how the principles of international law have been incorporated into their unique circumstances.
INTERNATIONAL WATER LAW ON TRANS-BOUNDARY RIVER DISPUTES
International water law covers the provisions of common law, framework agreements with a general applicability and regional or binational water Law treaties on specific water resources. Current international water law relates to a wider range of challenges, including development needs (for example, poverty alleviation), ecosystem services, and the growing number of uncertainties like global climate change and migration), extending beyond its previous scope which chiefly consisted of boundary delimitation and navigation.
International Water Law is a set of principles within international law that specifically deals with the regulation and use of water resources between two or more countries. These principles are used to address disagreements and conflict between states and establish certain requirements for state behaviour while using a common water resource. The principles of international water law operate differently in the contexts of riparian and maritime issues and attempt to resolve disputes between states regarding the use of transboundary water bodies. Its relevance in terms of freshwater resources becomes more evident as many states exercise only partial or limited control over trans-boundary river basins and each co-basin state’s utilisation or development of a shared water resource naturally influences the quantity and the quality of water available to lower or nearby basin states. In the case of South Asian states which frequently face differences in opinion regarding the use of transboundary freshwater resources, the principle of international water law becomes essential in arriving at an understanding of the use of these resources and the consequences of injudicious usage of the same. International water law has developed a set of principles based on the idea of equitable and reasonable utilisation, no significant harm and the duty to cooperate, to resolve disputes between states and to prevent these disputes from escalating.
The first principle of equitable and reasonable utilisation is one of the oldest principles of riparian law. It implies the responsibility on the part of states sharing water resources to use its share in a manner that is equitable and reasonable with respect to other states. The second principle of no significant harm is rooted in the general obligation of states to avoid using their territory in a way that harms another state. In the case of sharing water resources, this principle is interpreted in such a way that states must not use the resources in such a way that it causes material injury to the interests of another. Finally, the third principle which is the duty of states to cooperate is applied in a broad range of areas from the environment, development, human rights and in the context of shared or common natural resources (Yahya, 2021). The 1997 Convention on the Law of the Non-navigational Uses of International Watercourses codifies these three principles; however, they are not utilised to their full potential.
However, the primary weakness of international water law lies in the fact that there is no institution to enforce its rules. While states may follow the principles of international law, there is no undisputed power to ensure that it is enforced (International Journal of Law Management & Humanities, 2021). It is ultimately up to states whether they follow the law or not. The international community has two primary dispute resolution methods for resolving transboundary water disputes, through negotiating treaties and secondly by referring the disputes to the International Court of Justice (ICJ). Both methods allow nations to maintain their autonomy to a great extent, as each disputing party must consent to be bound by the methods or they would have no effect otherwise (Schmeier, 2021). At the same time, the If opposing parties cannot come to an agreement on their own and do not take their disputes to the ICJ, the international community has no authority to divide water among the parties. Any intervention by the international community would also limit the autonomy of the disputing parties, however, an effective, much more forceful mechanism for resolving disputes would lessen this severity on limiting the autonomy of states (Worthen, 2015).
WATER DISPUTES AND RESOLUTION IN SOUTH ASIA
Six of the eight countries currently part of the South Asian Association for Regional Cooperation (SAARC) - India, Pakistan, Bangladesh, Nepal, Afghanistan and Bhutan - are riparian states: India, Afghanistan and Pakistan share the water resources of the Indus River system and India, Nepal, Bhutan and Bangladesh share the Ganges-Brahmaputra-Meghna (GBM) river system. All of these nations have water scarcity, with a significant degree of spatial variance in the availability of water from one region to another within their respective borders. The population and economic growth in South Asia have also contributed greatly to a significant drop in the amount of water resources available per person. Policy initiatives in these countries which aimed to bolster agricultural growth and productivity, industrialization and urbanisation have also led to an increase in the consumption of water per person over the years, leading to a situation of water stress due to the excess demand for water, along with the demand for provisions of large scale water storage and irrigation facilities. The countries in South Asia, also face problems in terms of their diplomatic relations due to this high demand for water resources and differences of opinion regarding the sharing of common, limited freshwater resources (Vishwanath, 2018).
THE FARAKKA BARRAGE
India and Bangladesh share 54 rivers. They also share the Ganga river basin and disputes over the sharing of riverine resources between the two countries have mainly revolved around sharing the waters of the Teesta river, which originates from the Himalayas and covers the floodplains of Sikkim. The first disagreement between the two countries regarding the use of transboundary river resources was regarding the Farakka Barrage in the newly independent India. The barrage would affect the flows of the Ganga to East Pakistan, or modern-day Bangladesh. After the liberation of East Pakistan in 1971, India and the newly formed Bangladesh resolved their differences over the barrage. However, both countries were unable to reach an agreement on the use of the Teesta waters, and the project continues to remain unresolved (Ranjan, 2020).
The Ganges Waters Agreement which regulated water distribution for five years, was negotiated and established between India and Bangladesh in 1977 . The first formal treaty wasn't signed until 1996 in which Bangladesh seeks an equitable distribution of water resources from IndiaThe Ganges Water Treaty of 1996 was an agreement to share the surface waters at the Farakka Barrage Near the mutual border, but this later proved to be ineffective. The treaty governs the distribution of water from the Farakka Barrage over a thirty-year period. Although the average water flow at the Farakka site between 1949 and 1988 served as the foundation for this arrangement, water levels have been subject to fluctuations since the agreement as a result of climate change, rainfall and increased water use for agriculture and hydropower in Nepal's upper Ganges. This has affected the allocation of water in accordance with the provisions of the 1996 treaty(Bala, 2018)(Ranjan, 2020).
THE INDUS WATER TREATY
The relations between India and Pakistan have faced multiple instances of tensions and eventual conflict over the years since their Independence in 1947. India and Pakistan agreed on the Indus Water Treaty in 1960 aimed to resolve the differences between the two countries on the use of the rivers which are part of the Indus River Basin. The treaty is unique in the sense that it adopts an approach of segregating and allocating the Basin based on the geography of its tributaries, enabling a form of division between the three eastern rivers (The Sutlej, The Beas and The Ravi) and the three western rivers (The Indus, The Jhelum and The Chenab) between India and Pakistan respectively (Raman, 2018).
The treaty is not absolute, as the parties involved are allowed certain uses in the rivers allocated to the other, in the presence of certain qualifications. It also gives both India and Pakistan the obligation to let flow and not permit any interference with these waters except for domestic use, non-consumptive use and agricultural use. The Treaty has achieved equitable use, but it has not qualified that use by obliging both Parties to utilise it responsibly or sustainably. It also has not accounted for possible environmental consequences due to processes like daming and other forms of infrastructural development associated with rivers(Raman, 2018) (Ranjan, 2020).
While the Indus Water Treaty has been hailed as a success, having survived the hostile relations between India and Pakistan over the years, the situation has changed over the years drastically, with both parties approaching the International Court of Justice for violations of the treaty. India has the upper hand in the treaty as the rivers considered under the treaty all originate and flow through India first. This has created problems for Pakistan, which has reached the brink of water scarcity, who has also expressed disapproval of the projects of the Indian government on the western rivers while the latter has dismissed Pakistan’s accusations as lacking scientific backing. The most prominent of the disagreements was in 2005 when Pakistan approached the World Bank challenging India’s Baglihar Dam project on the Chenab river and in 2011, both countries put forward their differences at the International Court of Arbitration(ICA) over India’s Kishanganga Project in Jammu and Kashmir. The Indus Water treaty is a prime example of using the principle of equitable and reasonable utilisation, but there is a need for the countries involved to fulfil their obligations as part of the treaty in order for it to be truly effective(Raman, 2018).
THE KOSI AGREEMENT OF 1954 AND THE MAHAKALI TREATY OF 1996
India and Nepal signed the Kosi Agreement in 1954 to regulate river flows and manage floods. A barrage along the India-Nepal border was to be built for this purpose and embankments were to be raised on both sides of the river. At the same time, the project was also to be used for electricity generation and irrigation purposes. While the structure was proposed for controlling floods, what is interesting was the fact that it did not have enough storage capacity for this purpose. The technology behind the Kosi barrage has been criticised for its inappropriate choice and the treaty also highlighted primarily the objective of controlling floods, with little to no mention of irrigation coverage. The treaty’s limitations are further evident in the fact that it does not say anything about providing water to Nepal for irrigation purposes. The amendment of the agreement in 1966 addressed many of the gaps in the initial agreement including issues like sovereignty of the parties involved, use of water and power and navigation rights to name a few. While irrigation projects have gone underway in Nepal, the irrigation supply remains unsatisfactory (Bagale, 2020).
The Mahakali Treaty was signed in 1996, between Nepal and India and entered into force in 1997, with provisions for revision every ten years. The treaty which primarily divides the waters from the Sarada Barrage and if needed, the Tanakpur Barrage to Nepal. Both barrages were constructed on the Mahakali River which flows on the border between India and Nepal. The treaty between India and Nepal in 1991 on the issue of the waters of the river, which was signed as a memorandum of understanding was marred with controversies and debates over its nature, eventually leaving the treaty unable to be ratified. The previously controversial treaties over the Mahakali river were subsumed with the Mahakali Treaty. In fact, one of the greatest criticisms of the treaty is the disproportionate use of water resources by India was accepted as part of existing consumption uses and purposes under the previous treaties, especially in the context that India has had far more access than Nepal to water resources.
According to the treaty, the Pancheshwar Multipurpose Project (PMP) has some general principles applicable to transboundary rivers, including "equal entitlement in the utilisation of the waters of the Mahakali River without prejudice to their respective existing consumptive uses". According to the agreement, both nations would pay for the project in proportion to the benefits they would receive, and some of Nepal's share of the energy would be sold to India. When the project is completed and the water supply in Tanakpur is increased during the dry season, Nepal will receive more water and energy while paying a share of the cost of the additional energy produced. It was noted that Pancheshwar was a dam that Nepal had not shown much interest in, despite India having wanted it for more than 20 years.
While the Mahakali Treaty is still being implemented, the progress has been slow with multiple issues left unresolved. This delay in the implementation of the terms of the treaty has also caused a deadlock in the water cooperation between India and Nepal (Bagale, 2020).
While these agreements have been effective in arriving at a form of consensus regarding the use of shared river basins in the South Asian region, their implementation and efforts to maintain or even update the terms and conditions of these agreements by the respective countries has not been effective. One of the significant factors that have led to the prolonged nature of these disputes is the existing geopolitical conflicts and historical tensions between the countries of South Asia have permeated into the disputes over water as well. These, as well as broader political issues have affected the way in which these agreements have been drafted and implemented over the years. The rapid population growth in the region over the decades, coupled with the rising demand for resources, specifically for agricultural expansion and urbanisation has resulted in added pressure over the use of shared watercourses. The problem of climate change has also affected the current state of these rivers, due to differences in precipitation patterns, the melting of glaciers and the overall impact of climate change on hydrological cycles, which affect the overall volume of water. Pollution also adversely affects the state of these water bodies, leading to increasing pressure on them, and differences of opinion between countries regarding the sharing and usage of resources.
While the existing agreements between the South Asian states have been drafted for enhancing cooperation regarding the use of river water resources, cooperation in the regions of dispute have been limited and effective mechanisms for cooperation and collaborative water management have been few and far in between. It is also noteworthy that the endowments of rivers vary among the states of South Asia. The disparity in river or water resources amongst co-riparian nations causes conflicts between them over their respective needs. The pursuit of any cooperation on resource sharing is unachievable due to these fundamental differences between states (Uprety, Salman, 2011).
South Asian countries have also generally demonstrated a reluctance to embrace a more integrated strategy for managing their river resources. Nationalistic goals steer these nations' diplomatic efforts regarding water-related issues, which eventually results in an impasse over dispute resolution. Any attempts at dispute resolution are thwarted by diplomatic tactics that put national interest ahead of cooperation. When combined, these facts provide special difficulties for regional cooperation in managing and using shared river resources.
But this is not to say that the existing agreements are entirely ineffective. The Treaty between India and Pakistan pertaining to the Indus River has effectively resolved a protracted disagreement through the allocation of the various rivers within the Indus River System. Additionally, it has established a structured mechanism to ensure the successful execution of the Treaty, and implemented a comprehensive procedure to prevent and settle conflicts and discrepancies. Similarly, the 1996 agreement between India and Bangladesh regarding the sharing of the Ganges River introduced a prescribed methodology for water distribution, requiring both governments to make concerted efforts in negotiating water-sharing arrangements for an additional 53 rivers that are mutually accessible (Uprety, Salman, 2011).
DISPUTE RESOLUTION THROUGH INTERNATIONAL LAW
Through previous agreements and conventions, international law can be used to effectively resolve disputes involving interstate rivers by establishing clear guidelines and standards for the equitable use and distribution of water. Such agreements should take into account the diverse interests of all parties involved, paying particular attention to pre-existing rights and investments in water uses that are currently in place. It is also crucial that the riparian states consult and work together, especially when it comes to planned new projects or adjustments to water use that have already occurred. When the parties are unable to come to an agreement, the use of third-party dispute resolution procedures, such as mediation, international court or commission adjudication, may be beneficial. The particulars of each case determine how effective these strategies are. According to Van Alstyne (1960), one general principle of international law that can be applied in such disputes is the doctrine of equitable distribution, which balances the interests of all affected parties and ensures each state's right to reasonable use of the water.
The enhancement of the international legal framework concerning the management of transboundary water resources can be achieved by promoting a comprehensive integrated regional cooperation framework. For this framework to be more effective, it is essential to develop it in conjunction with the endeavour to harmonise legal frameworks at both the intra-regional and national levels (Aktar, 2021)(Uprety, Salman, 2011).
There are various ways in which international law has been and can be used in resolving river disputes. One of the primary ways is through customary international law, which can be used in the resolution of these river disputes. Customary laws can also be formulated based on the various ways in which the parties involved manage their share of resources and the overall attitude of the state in resolving these disputes. Another method is through confidence building measures through which states can use to arrive at an agreement regarding the use of riverine resources like information sharing measures. Understanding the requirements of the parties, assessing water scarcity levels, and undertaking joint research initiatives all form part of information and data sharing mechanisms that also helps build trust between the states, reducing the instances for disagreement between the South Asian countries, and the chances of these disagreements escalating into armed conflict. There must also be regular talks between the South Asian nations regarding the issue of water sharing, and effectively utilise platforms like the SAARC for the same. Adopting integrative approaches can also help in arriving at an agreement regarding the use of common rivers, while also formulating policies and solutions for other inter-boundary issues as well (Aktar, 2021) (Uprety, Salman, 2011).
As freshwater resources continue to become a scarce resource due to natural and human factors, countries across the world intensify their attempts to preserve their existing water resources for consumption and developmental purposes. However, freshwater resources do not respect the political boundaries of states, resulting in countries sharing rivers, lakes and other large bodies of freshwater. The use of these resources easily becomes a matter of contention between states, leading to major differences of opinion, which escalate into violent conflict. International water law aims to provide a solution to this by giving states an alternative to discuss and form an agreement based on their needs and requirements without infringement. While there are instances where these treaties have been violated by either or both of the parties involved, it has been effective in minimising the likelihood of armed conflict or violence between states.
The effectiveness of the principles of international law in forming and upholding water-sharing agreements is especially important in a region like South Asia. With its rapidly growing population and economy, the region has continued to become increasingly water-stressed over the years, with most of the countries in the regions having disputes and differences of opinion over the sharing of freshwater resources, there is a need for the countries in the region to reach an understanding over the existing agreements on sharing water resources and even improve on them keeping in mind the changing circumstances which determine the use and the distribution of a resource as valuable and limited as freshwater. While international law is helpful in bringing countries to peacefully cooperate over common resources, the absence of an institution to enforce the principles of international law means it is eventually up to the states to maintain this peaceful cooperation, as is seen in the case of South Asia, where the countries while entangled in various disagreements over the sharing of river waters, try to maintain peaceful relations using the basic principles of international law.
 Regional distrust is fuelling water conflicts in South Asia. (2014, July 17). South Asia@LSE. https://blogs.lse.ac.uk/southasia/2014/07/11/regional-distrust-fuelling-water-conflicts-in-south-asia/
 Regional distrust fuelling water conflicts in South Asia. (2014, June 26). Climate-Diplomacy. https://climate-diplomacy.org/magazine/environment/regional-distrust-fuelling-water-conflicts-south-asia
 The Diplomat. (2019, February 24). Depoliticizing South Asia’s water crisis. https://thediplomat.com/2019/02/depoliticizing-south-asias-water-crisis/
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