278 / International Watercourses Law and Its Application in South Asia
Chapter- Six
Conclusions and Recummendations
6.1 Conclusions
In the earlier chapter, an analysis of IWL, and its application to
the water resources available in south Asia has been made.
Each Chapter analysed the problems associated with realising
the promising potential of the resources in a coherent manner.
The study has indicated the significance of water, the
magnitude of the problems, the manner in which they could be
resolved, and the tremendous gains that would be realised from
the judicious utilisation of these resources. Of the four
principles that have emerged in IWL, i.e. territorial sovereignty,
territorial integrity, prior appropriation and equitable utilisation,
I advocate the wider acceptance of the equitable utilisation
principle. Equity, which is the central theme of this book, has
the ability to accommodate every interest and create win-win
situations out of complicated conflicts between contestant
states and communities.
6.2 Summary of Findings
The first Chapter introduced the aims of this thesis and assessed
the significance of the water resources of Nepal and their
immense potential for the prosperity of that country as well as
her south Asian neighbours. As a regional power, India has a
great role to play but she must give attention to Nepal’s
development in harmony with the norms of equity envisaged in
Articles 5 and 6 of UNCIW. The best way to resolve water
conflicts is by negotiation rather than judicial settlement, 1 in
line with a liberal approach of equity.
Conclusions and Recummendations / 279
The present circumstance of confrontation between Nepal and
India is not conducive to the enhancement of co-operation for
equitable utilisation of water resources. For example, India has
constructed a network of reservoirs and dams along the whole
Indo-Nepal border without giving prior notice to Nepal, thereby
inundating huge areas of Nepalese territory. 2 No mitigation,
elimination or compensation has been provided for such harm.
This is a flagrant breach of IWL.3 The study suggests that in
order to attain the maximum benefits for all the riparian states,
international and regional cooperation is the first pre-condition.
By doing so, poverty can be reduced, sustainable development
undertaken; dependence within interdependence can be set out
and the cloud of distrust can be converted into prosperity.4
Chapter two evaluated and demonstrated the long efforts
exerted in the development and codification of IWL. There are
several instruments that deserve universal application such as
UNCIW. The exact application of those instruments, however,
could vary depending upon the specific circumstances. Each
watercourse has unique circumstances; 5 a resolution suitable
for each set of circumstances is highly desirable. Even though
the law is the same, it requires greater flexibility in the use of
discretion and interpretation for a just and fair resolution,
depending upon the specific nature of the problem.
2
3
4
1
B. R. Chauhan, Settlement of International Water Law Disputes in
International Drainage Basins, Berlin: Eric Schmidt Verlag, 1981, p. 465.
5
As demonstrated in Chapter Four, India is constructing new reservoirs
and dams which have submerged a huge amount of territory in Nepal.
Neither notification was given, complaints heard nor compensation
paid. Also see staff, “India completed Mahalisagar reservoir project”
The Kathmandu Post 1 July 2003, staff, “SCIP Failed to resolve
dispute”, The Kathmandu Post 13 August, 2003; India refused to
acknowledge the harm caused by the reservoirs constructed without the
consent of the Standing Committee for Inundation Problem (SCIP).
Article 5 (Equitable Utilisation) and Article 7 (No Harm Rule)
UNCIW, 36 ILM (1997), p. 722.
B. G. Verghese, Waters of Hope, New Delhi: Oxford & IBH Pub.,
1990, pp. 385-393.
H. A. Smith, The Economic Use of International Rivers, London: P. S.
King & son, 1931, p. 121.
280 / International Watercourses Law and Its Application in South Asia
The law developed so far is based on the principle of
reasonable and equitable utilisation. Some argue that it is too
ambiguous a principle with major problems in its interpretation
and application. 6 There are, however, several guidelines in
Article 6 for the proper interpretation and implementation of
the provisions of such laws. The other fact is that the law is
only a tool, the dominant factors are human will and desire to
consistently address and harmonise the interests of the
contestant states. The UNCIW was adopted as a holistic,
framework law in 1997, even though this UN vote was not
unanimous. Several states still entertain conflicting views on
certain provisions of this law. For example, it has been argued
that Article 5 of the UNCIW favours upstream states, whilst
Article 7 favours downstream states. Similarly, which rules
should prevail in the event of a conflict “equitable or no harm
rules” remains a disputed issue. 7 Moreover, even in the
application of these two rules, due to the ambiguity and
vagueness surrounding them, there are still conflicting ideas.8
However, the rule of equitable utilisation, which is the core law,
contains guidelines and the basis for its application, but it
requires ongoing cooperation between states for its effective
implementation.9
6
7
8
9
L. Caflisch, “Regulation of the Use of International Watercourses” in S.
M. A. Salman & L. B. de Chazournes (eds), International
Watercourses: Enhancing Cooperation and Managing Conflict,
Washington DC: World Bank Technical paper no 14, p. 16; also see C.
B. Bourne, “The Primacy of Equitable Utilisation in the 1997
Watercourse Convention” (1997) in XXXV CYBIL, pp. 215-231.
S. C. McCaffrey, The Law of International Watercourses: NonNavigational Uses, Oxford: Oxford University, 2001, p. 308.
R. St. McDonald, “Charles B. Bourne: Scholar, Teacher and Editor,
Innovator in the Development of International Law of Watercourse”
(1996) in XXXIV CYBIL, pp. 53-87.
J. Brunnee & S. J. Toope, “The Changing Nile Basin Regime: Does
Law Matter?” (2002) in 43 HILJ, pp 131-151; also see supra note 1, p.
467.
Conclusions and Recummendations / 281
Chapter three deals with the origin, development and
application of equity. Furthermore, application of equity in the
sharing of natural resources, the practice of the ICJ and its
predecessor, and other municipal courts and tribunals have
been analysed. The research findings suggest that equity has
become the pivotal point for bridging any gaps between
contestants views or principles. The role of equity has proven
its capacity to prevent conflicts in such a way that every
interest is addressed with a rational resolution of the problems
that lead to conflict. In order to fill the chasm between poor
states and the developed states, to balance and preserve the
interests of present and future generations, to carry out
development without adversely damaging the environment, and
to accommodate all interests in a shared resource, equity has
remained a central issue. 10 Equity has given flexibility and
strength to decision-makers in harmonising the divergent
interests of disputant parties. However, it is only a tool; its
application requires the utmost measure of fairness with a
profusion of liberal attitude and sound discretion.
The political use of equity in human rights, environment and
sustainable development issues must be differentiated from the
legal use of equity. The legal use of equity in IWL has been
developed by the Supreme Court of the United States and some
other European states in the twentieth century in the resolution
of conflicts involving the allocation and sharing of water
between federal states and provinces.11 The PCIJ and the ICJ
have contributed immensely to its application and development
in their decisions for sharing and delimiting the Continental
Shelf and disputed issues arising over it. The LOSC 1982 and
the UNCIW have codified equity as a rule of customary
international law. Furthermore, resolution of both existing and
future conflicts are also expected to be resolved by the
application of equity. In fact, equitable utilisation has become
10
11
D. French, “International Environmental Law and the Achievement of
Intragenerational Equity” (2001) in 31 ELR, pp. 10469-10485.
Demonstrated in Chapter two.
282 / International Watercourses Law and Its Application in South Asia
the cornerstone of resolution of the issues on shared natural
resources, including shared watercourses. 12 The tremendous
success in new technological innovations has the potential to
help avert conflicts. Examples are, re-use of water,13 distillation
technology, and technologies to deliver water over great
distances. Some ambitious propositions that can be cited in this
context are: Turkey’s plan to deliver waters to the whole
Middle East, cloud shedding and unnatural precipitation
programmes as undertaken presently in the US and Israel,
potential water delivery, and use of Antarctica's and also the
high Himalaya's waters.14
Chapter four dealt with the issues of Nepal and regional cooperation in south Asia. It assessed the problems and prospects,
and suggested measures to solve problems in such a way that
every nation can win and no one loses. 15 A historical
perspective on bilateral relations, and water relations in
particular have been given and evaluated in the light of present
challenges. The potential benefits to Nepal, India, Bangladesh
and Bhutan in bilateral and regional perspectives are very
promising. However, the reality and the existing framework of
co-operation is far from satisfactory.16 There are opportunities
for numerous trade-offs amongst these nations, whereby the
misery of poverty could be overcome by prosperity within the
12
13
14
15
16
S. C. McCaffrey and M. Sinzela, “The United Nations Convention on
International Watercourses” (1998) 92 AJIL, p. 106.
Singapore is planning to substitute at least 2% of imported water by
recycling
waste
water
by
the
year
2004,
www.internationalwaterlaw.org.
R. Clarke, Water: The International Crisis, London: Earthscan Pub.,
1991, p.110.
B. Subba, Himalayan Waters, Kathmandu: Panos South Asia, 2001, p
225; also see B. G.
Vershese, “Regional Cooperation for Optimal Basin Development” in
B. G. Verghese & R. R. Iyer (eds) Harnessing the Eastern Himalayan
Rivers: Regional Cooperation in South Asia, New Delhi: Konark Pub.,
1994, pp. 263-280.
S. D. Muni, India and Nepal: A Changing Relationships, New Delhi:
Konark Pub., 1996, pp. 161-176.
Conclusions and Recummendations / 283
framework of the concept of, ‘dependence within
interdependence’. 17 Past experiences have been marred by
confrontation rather than improved by meaningful co-operation.
Such attitudes, however, appear to be changing, most recently
in the Nile basin 18 and south Asia. 19 It is essential to take
advantage of such a positive situation. 20 As a result of past
relations shrouded by the miasma of negative attitudes of
suspicion, each state is cautious and doubtful of the other. 21
This research has indicated the implications of co-operation.
For its achievement, however, a radical change in working as
well as in thinking is urgently required and the leaders of this
region must undertake radical change with charismatic
leadership.22
Chapter five has demonstrated the legal issues involved in the
River-Linking Project of India, its relevance to get rid of
recurrence flood, drought and famine, potential advantage from
the project to India and her neighbours and the role of regional
cooperation. The best way to tackle the poverty in south Asia
has been is depend how states can cooperate with others,
understand other sensivity and how law help them to
implement this huge project.
6.3 Implications of Water Scarcity
The alarming increase of the world’s population poses a threat
to the maintenance of the availability and distribution of these
17
18
19
20
21
22
B. C. Upreti, Politics of Himalayan River Waters, New Delhi: Nirala
Pub., 1993, pp. 158-178.
Supra note 9, p. 159.
The Power Purchase agreement on west the Seti project and the river
Linking Project are evidence of it.
S. P. Subedi, “The Hydro Politics of South Asia: the Conclusion of the
Mahakali and Ganges River Treaties” (1999) 93 AJIL, p. 962.
B. Crow, A. Lindquist & D. Wilson, Sharing the Ganges: the Politics
and Technology of River Development, New Delhi: Sage Pub, 1995, p.
222.
Supra note 4, p. 393.
284 / International Watercourses Law and Its Application in South Asia
precious water resources: withdrawals are expected to rise by
31% by 2020 and groundwater resources are being replenished
only at a rate of between 0.1% and 0.5%. 23 There are
predictions that the next war will be fought over water, if the
international community does not work hard in unison by
promptly and prudently taking into account the interests of all,
equally. 24 Such a gloomy picture presents either a recipe for
conflict or an incentive to co-operation.
However, the key to regional as well as bilateral cooperation
largely depends on how India, as a regional power willing to be
a member of Security Council of the United Nations, 25
reconciles its views and aspirations in addressing the similar
interests of its neighbours.26 Moreover, India’s traditional view
of benefiting at another's expense, as alleged, must be changed
into the concept of good neighbourliness, a cooperative attitude,
and incorporate equitable sharing of shared resources. The
same attitude must be adopted by Nepal and other neighbours.
The positive aspects of the past treaties must also be recalled27
Conclusions and Recummendations / 285
instead of one way criticism and over-politicising.28 Nepal must
convince and persuade its over-bearing neighbour to promote
and preserve the interests of both countries, and India must stop
damming the rivers on the Indo-Nepal border and causing the
upstream states significant harm. If there is the political will
among the south Asian nations and the required co-operation
from the international community in terms of finance,
technology and skill, the other modes of co-operation are
within the reach of south Asia. 29 The Mekong Basin and
Southern African states have adopted the concept of regional
grids to trade off hydroelectricity for the investment of
multilateral agencies. Thailand has not only guaranteed the
purchase of Lao’s hydroelectricity but also provided a
sovereign guarantee to the consortium of international banks
and other lending agencies to allow the project to proceed. 30
There are several models in the bilateral and multinational
spheres as indicated in Chapter two, any of which could be
followed.
28
23
24
25
25
26
27
Staff, “Ecological Decline far worse than official estimates”, The
Guardian 26 August 2002, p. 4, also see United Nations,
Comprehensive Assessment of Freshwater Resources of the World,
1997, Geneva: UN Pub.
Supra note 7. A Vice President of the World Bank, Ismail Serageldin,
who thought water a catalyst for peace, predicted in 1995 that ‘the wars
in the next century will be over water.’
C. D. Mass, “South Asia: Drawn Between Cooperation and Conflict”
in E. Gonsalves & N. Jetly (eds), The Dynamics of south Asia:
Regional Cooperation and SAARC, New Delhi: Sage Pub., 1999, p. 67.
C. D. Mass, “South Asia: Drawn Between Cooperation and Conflict”
in E. Gonsalves & N. Jetly (eds), The Dynamics of south Asia:
Regional Cooperation and SAARC, New Delhi: Sage Pub., 1999, p. 67.
S. P. Subedi, “Indo-Nepal Relations: The Cause of Conflict and Their
Resolution” in S. K. Mitra & D. Rothermund (eds), Legitimacy and
Conflict in South Asia, New Delhi: Manohar, 1997, p. 240.
A. Mukarij, “Is Destabilization the Name of the Game” in A. Sen (ed)
India’s Neighbours: Problems and Prospects, New Delhi: Har-Anand,
2001, p. 115.
29
30
D. Gyawali, Water in Nepal, Kathmandu: Himal Books, 2001, pp. 5365: The Nepalese Parliament ratified the Mahakali treaty, however, it
then passed a stricture (by both Houses of Parliament). breaching the
Treaty’s provision, and sought incorporation of the terms of the
strictures into the Detail Project Report, which obviously prevents
progress in executing the Treaty.
M. R. Josse, “The Case for New Thinking” (1994) in 4 Water Nepal, p.
260: Then British PM James Callaghan and then US President Jimmy
Carter were quoted as saying that their nations were eager to help in
utilising Himalayan water resources.
P. Chomchai, “Management of Transboundary Water Resources: A
Case Study of the Mekong” in M. I. Glassner (ed), The United Nations
at Work, Westport, CT: Praeger, 1998, pp. 245-255; also see
www.internationalwaterlaw.org: Laos has signed a deal with a
consortium to build and operate the Nan Theun Project (1,070 MW
hydroelectric project) in which Thailand is the sole buyer. The ADB
said Laos earned $ 112 million from electricity exports in 2000, one
third of the country’s total exports and its biggest export item. Also see
South African Power Pool, common electricity for 14 African states
www.eia.doe.gov/emev/cabs/sadc.html.
286 / International Watercourses Law and Its Application in South Asia
6.4 Changing Perspectives
There are some more positive indications which suggest that
improved attitudes are being developed in the area of cooperation. The recently proposed Arun III, Lower Arun and
Upper Arun projects, altogether 1,050 MW, are being
considered for implementation through bilateral arrangement,
with the involvement of public power utilities and private
institutions in India and Nepal. The ADB which has been
involved as a facilitator, had expressed its preparedness to
provide the necessary amount of loan money, not only to carry
out the feasibility studies but also to implement the project.31
Furthermore, the West Seti export purpose hydroelectric project,
which is being planned for development by the Australian
Snowy Mountain Electric Company (SMEC), has been
permitted to have an MOU with Power Trading Corporation
(PTC), the Indian Government’s Power Purchasing Company.
Successful negotiations to obtain a power purchase agreement
have been recently concluded. It is expected that after its
success, a new cooperative dimension in Indo-Nepal water
resources relations will be opened. 32 As expected the SMEC
and PTC has struck a power purchase agreement at US$ Cents
4.865 per unit rate and the project is going to be started from
this year. 33 Similar positive development expected to occur
between India and Bangladesh as well.
Apart from this, SAREE, SAGQ, SASEC and other institutions
working for expanded regional cooperation are emerging. The
allegation that everything hinges on the Indian attitude is
31
32
33
Staff, “ADB co-operation on water projects”, The Space Time Daily,
18 September, 2002, quoted the country Director of the ADB stating
its readiness to provide any type of co-operation to implement these
projects.
www.internationalwaterlaw.org ‘SMEC strikes a deal with Indian
government’.
Staff, “SMEC concluded an agreement with Power Trading
Corporation of India.” Kantipur (in Nepali)10 December 2003.
Conclusions and Recummendations / 287
commonly made by all the small and vulnerable nations of
south Asia. However, in 1996, Nepal and Bangladesh managed
to conclude separate treaties with India, thereby removing their
long entertained complaints and grievances over the Mahakali
and the Ganges rivers respectively. 34 In the case of Nepal,
however, the positive circumstance created by the Mahakali
treaty is not being reaped because of non-implementation of the
project due to differing views on how to implement the treaty
regime. Other nations are ready for utilising this resource, if
India were ready to address its neighbour's interests in a
reasonable and equitable manner.35 It is worth mentioning that
in the 19th century, strong countries wanted weak neighbours
they could dominate. In the 21st century, strong countries will
benefit from neighbours who are prosperous and democratic.
Troubled neighbours export problems whereas healthy
neighbours promote the region's vitality, growth and peace. 36
Additionally, in a U-turn in its policy on water sharing issues,
India is contemplating a grandiose project linking 37 rivers,
constructing 27 big dams and diverting 141,288 million cubic
metres of water through a network of 4,777 km of canals. The
River Linking Project will cost Rs. 560,000 crore. In this
project, it is hoped that the riparian consent and co-operation of
Nepal, Bhutan and Bangladesh will be sought and every
interest heeded so that past bitternesses will be eliminated.37 If
the project were to be executed in this manner, it is likely that
the mistrust and bitterness of the past would be reversed, as
every complaint would be accommodated. The grievances
suffered by the smaller states for so long could be resolved
34
35
36
37
Supra note 20, p. 958, also see, S. M. A. Salman and K. Uprety,
“Hydro-Politics in South Asia: A Comparative Analysis of the
Mahakali and Ganges Treaties” (1999), 39 NRJ, pp. 333-335.
Supra note 15, pp. 188-195.
R. B. Zoellick, “NAFTA: A Successful Model of North South
Relations” in www. usembassy-mexico.gov/sbfnafta.
S. Aiyar, “Changing the Course” (2003) in XXVII India Today,
January 20, pp. 28-32.
288 / International Watercourses Law and Its Application in South Asia
forever, only if their interests were accommodated in such a
grandiose enterprise.
6.5 Implications and Future Research
In this section, I will consider the implications of this study for
future scholarship in two areas, poverty reduction and the MDG.
Efforts of the international community were initiated in 1972 in
Stockholm, further strengthened in Rio de Janeiro through the
Earth Summit in 1992, and WSSD, signifying the importance
of freshwater not as a separate issue but as an integrated part of
the whole environment, and the commitment of the world to
it.38
The issue of water is explicitly related to the human rights of
people, without which life cannot be imagined.39 These rights
are safeguarded by the provisions of Article 10 of the 1997
UNCIW, stating that priority will be provided for “vital human
needs.” 40 Moreover, the development of renewable energy for
reducing global warming is on the agenda for the international
community.41 MDG’s and the recent WSSD have set a target of
halving the number of people presently deprived of potable
water, proper sanitation and clean energy from two billion to
one billon by the year 2015. In context of the statement that
38
39
40
41
D. Harrison, “America bows to summit demand on sanitation for the
world’s poor” The Daily Telegraph, 3 p. 4, September 2002. The UK’s
Environment Secretary Margaret Beckett is quoted as saying that the
WSSD has been largely successful and illustrated the significance of
‘multilaterism’.
S. McCaffrey, “A Human Right to Water: Domestic and International
Implications” (1992) 5 GIELR, pp. 1-23.
UNCIW, 36 ILM (1997), p. 722.
J. Vidal & P. Brown, “Meeting was sell out” The Guardian, 4
September 2002, pp. 1-3, 2002. It is massive blow for the renewable
energy plan. Main achievements were setting the target of halving the
number without basic sanitation and drinking water by 2015, and also
halving the 1.2 billion who live on less than $1 a day.
Conclusions and Recummendations / 289
hydropower as a source of clean energy will be encouraged,
unfortunately, no timetable is provided. 42 As maintained by
Gerhard Schroder, the German Chancellor, global warming is
no longer a matter for scepticism, it has become a reality. He
further argues that there can be no global security without an
agenda for global equity and that developing countries require
the co-operation of developed nations to carry out ambitious
energy projects.43
To eliminate poverty in the least developed and geographically
handicapped nations, the international community should
change existing policies and programmes so as to provide
special treatment and concessions on investment, trade,
environmental obligations and financial assistance. Poverty has
been identified as a cause of civil war and terrorism, and is a
general hindrance to world peace and prosperity. For example,
in Nepal the seven year Maoist insurgency has led to the deaths
of over 9,000 people and the loss of billions of rupees worth of
property. 44 Thabo Mbaki, the South African President, has
rightly suggested at the (WSSD) in Johannesburg) that until the
gap between the haves and have-nots is filled, the fuelling of
global terrorism will continue.45 World poverty including that
of south Asia must be eradicated by utilising these immense
water resources. In this effort, the rich states must favour the
weaker states in order to eradicate the hardship of poverty,
pursuant to the notion of equity. In the context of India and
42
43
44
45
P. Brown & J. Vidal, “Summiteers plant their flags in the foot hills.” p.
13, The Guardian, 4 September 2002.
P. Brown, “The US must play its part” p. 18, The Guardian August 30,
2002.
On human rights implications of Nepal see “Human Rights and
Security” (14 February 2000) at www.amnesty.org.
P. Brown & J. Vidal, ‘End seas of poverty’, The Guardian, 27 August
2002, p. 3. John Pronk, Envoy of UN Secretary General to the WSSD
is quoted as saying that the poverty of developing countries should be
addressed by the help of developed states.
290 / International Watercourses Law and Its Application in South Asia
Nepal, the former, being better off than the latter, should give
priority to the development of it less developed neighbour,
Nepal. This is also a finding of this research. A world order
characterised by equitable development and provision of
services to the people of developing nations like those enjoyed
by the people of the developed nations is indispensable to
keeping the peace, harmony, and welfare of this planet. Poverty
has been blamed for the Maoist uprising. Similar problems
exist across other parts of south Asia. Thus, in order to
establish an equitable society in these countries, broadening the
scope of the MDG’s, is urgently required. The issue of clean
energy such as hydro-energy and the supply of potable water
and sanitation service are linked with the freshwater issue.
Nepal requires cooperation without conditions (imposed as
riparian consent) from western governments and multilateral
institutions. These issues require further research. The other
impediment for Nepal, regarding the utilisation of its resources,
is the lack of its ability to generate power at competitive
prices. 46 The private sector should be encouraged to
supplement the public sector so that cheap energy generation
and competitive marketing can be undertaken. 47 Enhanced
technology, competitive energy prices (as required and set by
the market) and maximisation of efficiency are essential to
ensure competitiveness. Alternative markets such as China and
Bangladesh need to be explored so that India is not the sole
46
47
Supra note 28, p. 30: Government-developed hydropower in Nepal has
cost an average of $ 2800/kw while private generation costs are
$ 1000/kw; see S. Rana, “Don’t Blame Private Power Producers” in
(2002) September, 111 Nepali Times; also see M. Pradhan & S. B. Pun,
“Private Sector Participation in the Power Sector Lesson
Learnt/Unlearnt so far” 14-20 (2003) February, in 22 Spotlight, p. 5.;
also note “Chilime begins production” in The Kathmandu Post 26
August 2003.
S. B. Pun, “The Evolving Role of Public and Private Institutions in the
Nepalese Power Sector” in (1999) WECS Annual Report, pp. 38-49.
Conclusions and Recummendations / 291
market. The provision of modern technology to provide quick
and dependable energy is related to the water resources
available in south Asia.
This study shows that application of the principle of equity and
the rule of ‘reasonable and equitable utilisation’ will help
unravel the intricate and complex problems associated with the
harnessing and sharing of Himalayan waters. As stated in
Chapter three, the principle of equity has the ability to reconcile
interests of all states by considering socio-economic and other
relevant factors. The norms associated with it will help
maximise the benefits to all the nations concerned. Such a
mindset on the part of the regional and sub-regional partners
would ensure justice and prosperity for not only Nepal but the
whole of south Asia.
