Governance of the Ganges River Basin

A comparative analysis of water agreements and the

UN Watercourses Convention

Governance of the Ganges

River Basin

Shawahiq Siddiqui, Shilpa Chohan, Vishwa Ranjan Sinha

BUILDING RIVER DIALOGUE AND GOVERNANCE (BRIDGE)

A comparative analysis of water agreements and the

UN Watercourses Convention

Governance of the Ganges

River Basin

Shawahiq Siddiqui, Shilpa Chohan, Vishwa Ranjan Sinha

The designation of geographical entities in this document, and the presentation of the material, do not

imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any

country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.

The views expressed in this publication do not necessarily reflect those of IUCN,

Oxfam or other TROSA

partners or the Government of Sweden and The Asia Foundation.

Published by: IUCN Asia Regional Office (ARO), Bangkok, Thailand

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Citation: Siddiqui, S., Chohan, S. and Sinha, V. (2019). Governance of the Ganges River

Basin: A comparative analysis of water agreements and the UN Watercourses

Convention. Bangkok, Thailand: IUCN ARO. x+42pp.

Cover photo: Sketch Map of the Ganges River Basin © BRIDGE 2019

Layout by: IUCN Asia Regional Office

Available from: IUCN (International Union for Conservation of Nature)

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iii

CONTENTS

Preface ..................................................................................................................................................................... v

Executive summary .................................................................................................................................................. vi

Acknowledgements ................................................................................................................................................. vii

Acronyms ................................................................................................................................................................ viii

Glossary ................................................................................................................................................................... ix

1 Introduction to the United Nations Watercourses Convention ............................................................................. 1

1.1 Background and overview .......................................................................................................................... 1

1.2 Evolution ..................................................................................................................................................... 1

1.3 Overview ..................................................................................................................................................... 2

1.4 Principles .................................................................................................................................................... 2

1.5 Procedures ................................................................................................................................................. 3

1.6 Adoption and entry into force ...................................................................................................................... 3

2 Agreements between India and Nepal ................................................................................................................ 5

2.1 The Revised Agreement on the Kosi Project between Nepal and India, 1966 ............................................ 5

2.1.1 Evolution ......................................................................................................................................... 5

2.1.2 Overview ......................................................................................................................................... 5

2.1.3 Principles ........................................................................................................................................ 5

2.1.4 Procedures ..................................................................................................................................... 6

2.1.5 Entry into force................................................................................................................................ 6

2.2 The Agreement on the Gandak Irrigation and Power Project, 1959 (Revised 1964) .................................. 7

2.2.1 Evolution ......................................................................................................................................... 7

2.2.2 Overview ......................................................................................................................................... 7

2.2.3 Principles ........................................................................................................................................ 7

2.2.4 Procedures ..................................................................................................................................... 7

2.2.5 Entry into force................................................................................................................................ 8

2.3 The Mahakali Treaty, 1996 ......................................................................................................................... 8

2.3.1 Evolution ......................................................................................................................................... 8

2.3.2 Overview ......................................................................................................................................... 8

2.3.3 Principles ........................................................................................................................................ 8

2.3.4 Procedures ..................................................................................................................................... 9

2.3.5 Entry into force................................................................................................................................ 9

3 Agreements between Bangladesh and India ..................................................................................................... 10

3.1 The Ganges Treaty, 1996 ......................................................................................................................... 10

3.1.1 Evolution ....................................................................................................................................... 10

3.1.2 Overview ....................................................................................................................................... 10

3.1.3 Principles ...................................................................................................................................... 10

3.1.4 Procedures ................................................................................................................................... 11

3.1.5 Entry into force.............................................................................................................................. 11

4 Comparative legal analysis of the UNWC and agreements on Ganges Rivers ................................................. 12

4.1 The UNWC and the Kosi Agreement, 1966 .............................................................................................. 12

4.1.1 Scope and definitions ................................................................................................................... 12

4.1.2 Substantive principles: sustainable development ......................................................................... 13

4.1.3 Substantive principles: equitable and reasonable utilisation ......................................................... 14

4.1.4 Substantive principles: obligation not to cause significant harm (and related duty to protect

ecosystems) ................................................................................................................................. 15

4.1.5 Procedural obligations: principle of cooperation and information exchange ................................. 16

4.1.6 Procedural obligations: principle of prior notification, consultation and negotiation (over planned

measures) .................................................................................................................................... 17

4.1.7 Procedural obligations: dispute resolution procedures ................................................................. 18

4.2 The UNWC and the Gandak Irrigation and Power Project, 1964 .............................................................. 19

4.2.1 Scope and definitions ................................................................................................................... 19

4.2.2 Substantive principles: sustainable development ......................................................................... 20

4.2.3 Substantive principles: equitable and reasonable utilisation ......................................................... 21

4.2.4 Substantive principles: obligation not to cause significant harm (and related duty to protect

ecosystems) ................................................................................................................................. 22

4.2.5 Procedural obligations: principle of cooperation and information exchange ................................. 23

4.2.6 Procedural obligations: principle of prior notification, consultation and negotiation (over planned

measures) .................................................................................................................................... 24

4.2.7 Procedural obligations: dispute resolution procedures ................................................................. 25

4.3 The UNWC and the Mahakali Treaty, 1996 .............................................................................................. 26

4.3.1 Scope and definitions ................................................................................................................... 26

4.3.2 Substantive principles: sustainable development ......................................................................... 27

4.3.3 Substantive principles: equitable and reasonable utilisation ......................................................... 28

4.3.4 Substantive principles: obligation not to cause significant harm (and related duty to protect

ecosystems) ................................................................................................................................. 29

4.3.5 Procedural obligations: principle of cooperation and information exchange ................................. 30

4.3.6 Procedural obligations: principle of prior notification, consultation and negotiation (over planned

measures) .................................................................................................................................... 31

4.3.7 Procedural obligations: dispute resolution procedures ................................................................. 32

4.4 The UNWC and the Ganges Water Sharing Treaty, 1996 ........................................................................ 33

4.4.1 Scope and definitions ................................................................................................................... 33

4.4.2 Substantive principles: sustainable development ......................................................................... 34

4.4.3 Substantive principles: equitable and reasonable utilisation ......................................................... 35

4.4.4 Substantive principles: obligation not to cause significant harm (and related duty to protect

ecosystems) ................................................................................................................................. 36

4.4.5 Procedural obligations: principle of cooperation and information exchange ................................. 37

4.4.6 Procedural obligations: principle of prior notification, consultation and negotiation (over planned

measures) .................................................................................................................................... 38

4.4.7 Procedural obligations: dispute resolution procedures ................................................................. 39

Conclusion and recommendations .......................................................................................................................... 40

References ............................................................................................................................................................. 42

PREFACE

The Building River Dialogue and Governance (BRIDGE) programme is a global programme of IUCN

implemented in 15 shared river basins across the globe. The programme supports the capacities of

countries sharing river or lake basins to implement effective water management arrangements

through a shared vision, benefit-sharing principles and transparent and coherent institutional

frameworks. In the Ganges-Brahmaputra-Meghna (GBM) region, the programme is funded by the

Transboundary Rivers of South Asia (TROSA) programme

of Oxfam Novib. The objective of the

BRIDGE and TROSA programme is to support the development of inclusive government policies and

practices at all levels through the application of hydrodiplomacy and international water law (IWL).

The Ganges River Basin is shared by four countries: Bangladesh, China, India and Nepal. It is

endowed with rich natural and human resources but is also one of the poorest regions in the world

and vulnerable to natural disasters. The population density is high, and per capita water availability is

among the lowest in the world. The Ganges Basin lacks a regional basin-level cooperation agreement

to facilitate its joint management and address common challenges such as floods and climate

change. However, there are four bilateral agreements on the Ganges River and its tributaries: the

Kosi Agreement (1966), the Gandak Agreement (1964) and the Mahakali Treaty (1996) between India

and Nepal; and the Ganges Treaty (1996) between Bangladesh and India.

A number of studies appraising the provisions and implementation of these bilateral agreements are

available online and some argue the need to strengthen them through the inclusion of international

water law principles. None of the available literature, however, assesses the degree to which IWL

principles have already been integrated into the existing agreements. This paper uses the 1997

United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses

(UNWC) as a reference point to provide qualitative arguments and insight on the degree to which IWL

principles have been mainstreamed. The UNWC is widely considered the most important IWL

principle and has been in force since 2014.

It is envisaged that this paper will help strengthen the existing legal framework for cooperation in the

Ganges Basin through improved understanding of IWL principles among stakeholders, and by

highlighting gap areas and opportunities to mainstream IWL into existing agreements in the Ganges

Basin. The paper will be discussed and disseminated during capacity-building events and dialogues

on hydrodiplomacy, and used a tool to build regional consensus for strengthening existing basin

agreements and institutions in the GBM. It will be widely disseminated in the South Asian region, with

particular focus on government departments, particularly those engaged in policymaking and

negotiations on shared water governance. Considering that the principles of international water law,

such as equity and no harm, have wider applications to conflict resolution at all levels, from regional to

local, this paper will be disseminated to key government institutions linked to water resource planning

and management and civil society organisations (CSOs) working at the provincial level in Bangladesh,

India and Nepal.

EXECUTIVE SUMMARY

In 1997, the United Nations Convention on the Law of Non-Navigational Uses of International

Watercourses (UNWC) entered into force. This was a milestone for the global management of

transboundary waters and was a significant opportunity for countries and regions lacking cooperative

management frameworks for shared waters.

As a framework convention, the UNWC’s central objective is to provide a flexible legal framework

within which more specific basin and/or watercourse treaties can be developed, providing more

nuanced governance mechanisms via context-specific provisions.

None of the countries from the GBM Basin and/or South Asian Association for Regional Cooperation

(SAARC) regions ratified the UNWC. The reasons for this include the perceived inability of the

Convention to tackle the region’s water problems, the low level of awareness about the Convention

and its key substantive and procedural aspects. Furthermore, the principles of no significant harm and

prior information and consultation on planned measures are sometimes misinterpreted as favouring

downstream countries. Despite these challenges, the UNWC is widely regarded as the key document

on international water law and provides clear guidance for the development of new water cooperation

agreements.

Chapters 1 to 3 of this paper provide an overview of the evolution, principles and procedures of the

UNWC and existing bilateral agreements and treaties in the Ganges River Basin; Chapter 4 provides

a comparative analysis of the UNWC, focusing on its scope, principles, and procedures. Based on this

comparative analysis, a conclusion and recommendations are provided in the final chapter.

Among all the treaties analysed in this paper, the Ganges Treaty and the Mahakali Treaty, both

signed in 1996, are contemporary to the UNWC and encapsulate the principles of cooperation,

equitable and reasonable use, prior notification, no significant harm and other accepted IWL

principles. However, this study has determined that they do not appear to be backed by the clear

procedures and guidelines for operationalisation.

Several weaknesses in the treaties have been found to lead to unilateral decision-making on shared

river resources. The agreements between India and Nepal on the Gandak and Kosi Rivers are

specific to infrastructural projects, and the Ganges Treaty between Bangladesh and India does not

include all the countries in the Basin. Furthermore, this analysis also indicates that dispute resolution

mechanisms are generally weak, and in many cases neither include a fixed timeline for resolution or

are binding on the parties.

Overall, this analysis suggests the UNWC could be a tool for strengthening existing agreements on

the Ganges River and could support the development of basin-level agreements.

vii

ACKNOWLEDGEMENTS

IUCN would like to thank Mr Shawahiq Siddiqui and Ms Shilpa Chohan, Advocates at the Supreme

Court of India and founding Partners of the Indian Environment Law Organization in New Delhi, for

undertaking the legal analysis. IUCN would also like to thank Mr Jyoti Raj Patra, Regional Manager

for the TROSA Programme (Oxfam Novib), for reviewing the paper and providing valuable comments.

IUCN extends special thanks to all BRIDGE GBM stakeholders and partners, particularly Members of

the GBM CSO Network, for providing IUCN with valuable insight that made the conceptualisation and

final publication of this paper possible.

The research to produce this report was carried out as a part of Transboundary Rivers of South Asia

(TROSA) programme. TROSA is a regional water governance programme supported by the

Government of Sweden and implemented by Oxfam and partners in Bangladesh, India, Myanmar and

Nepal. Comments and suggestions from the TROSA Project Management Unit are gratefully

acknowledged.

Special acknowledgement to The Asia Foundation for supporting BRIDGE GBM.

viii

ACRONYMS

BRIDGE Building River Dialogue and Governance

CSOs Civil Society Organisations

Cusec Cubic feet per second

DPR Detailed project report

GBM Ganges-Brahmaputra-Meghna

ILC International Law Commission

IUCN International Union for Conservation of Nature and Natural Resources

IWL International Water Law

JC Joint Committee

JRC Joint River Commission

MRC Mahakali River Commission

PDA Pancheshwar Development Authority

PMP Pancheshwar Multipurpose Project

SAARC South Asian Association for Regional Cooperation

UN United Nations

UNWC United Nations Convention on the Law of the Non-Navigational Uses of International

Watercourses

GLOSSARY

Convention: The creation of a written agreement whereby the states participating bind themselves

legally to act in a particular way or to set up particular relations between themselves. The term is used

interchangeably with ‘treaty’. Treaties are also known by a variety of differing names, ranging from

International Agreements, Pacts, General Acts and Charters, through to Statutes, Declarations and

Covenants.

Customary laws: Long-established practices commonly accepted as correct rules of action at local,

national and international levels. (see opinio juris).

Customary water management laws: Group of non-formal norms and behaviours that are accepted

by the community and that have endured over time in the society.

Due diligence: The steps taken (including financial, legal, technical and administrative) by a state to

reach a legal standard of care recognised in order to reasonably avoid committing harm to another

state.

Entry into force: A treaty comes or enters into force at a time when it becomes legally binding on the

parties to the treaty. A treaty does not enter into force when it is adopted (opened for signature). The

date of entry into force may be a date specified in the treaty or a date on which a specified number of

ratifications, approvals, acceptances or accessions have been deposited with the depositary.

Equity: Principle under which all individuals that are in the same situation must abide by the same

laws, without any type of distinction or discrimination.

Good faith: Conduct with honest intent, fairness and sincerity, and with no intention of deceit.

Inter alia: “Among other things.” The phrase is used to make it clear that a list is not exhaustive.

Jurisdiction: The right in international law for a state to exercise authority over its national and

persons and things in its territory.

Locus standi: The right to bring an action or challenge some decision.

Opinio juris: General belief by a state that a particular state practice is legally binding upon it.

Party: A state or regional economic integration organisation that has consented to be bound by a

convention, treaty etc. once in force.

Ratification: Following signature, the expression of a state’s consent to be bound by a treaty. Often

the term ratification is used interchangeably with ‘accession’, ‘approval’ or ‘acceptance’.

Regulation: A legally binding order or rule adopted by an administrative agency or local government

Sustainable utilisation: Comprises two key elements in the context of natural resources: rational use

and the protection of the ecosystem. In the context of renewable resources this means protecting the

long-term viability of the resources for present and future generations.

1 INTRODUCTION TO THE UNITED NATIONS WATERCOURSES

CONVENTION

The United Nations Convention on the Law of the Non-Navigational Uses of International

Watercourses

is the key source of international law for governing the use of shared river basins, such

as the Ganges Basin. As a global convention, its central objective is to provide a flexible legal

framework within which more specific basin and/or watercourse treaties can be developed, providing

context-specific governance mechanisms.

With the UNWC now enforceable, it is widely “anticipated to have a significant impact on water

governance in trans-boundary river basins around the globe by bolstering the strength of regional

treaties already in force, supporting the development of new agreements which are aligned to the

internationally accepted water law principles, and by enhancing cooperation between states by

inciting new states to accede to the Convention.”

1.1 BACKGROUND AND OVERVIEW

The UNWC is a pivotal convention for a number of reasons: it creates a strong framework for water

governance arrangements and a basic common ground that enhances predictability and encourages

reciprocity; codifies and clarifies existing norms and develops emerging principles of customary

international water law; constitutes a model that can guide the interpretation of other treaties and the

negotiation and drafting of future ones; and has informed the judgments of international and regional

courts.

One of the key accomplishments of the UNWC is the codification of the general principles and

procedures of international water law that interact with each other in their implementation. The UNWC

is the first legal instrument adopted at the universal level that clearly spells out the “duty to cooperate”

as a core principle of international water law.

1.2 EVOLUTION

The UNWC represents the culmination of nearly four decades of work on the codification of the

progressive development of international water law. In 1959, Bolivia requested the United Nations

(UN) General Assembly to examine legal problems relating to the utilisation and use of international

rivers, leading to UN Resolution 1401(XIV). In 1963, the International Law Commission (ILC)

was

tasked with studying and codifying progressive development of the law on non-navigational uses of

international watercourses, which became UN Resolution 2669(XXV).

Following 20 years of work and 15 reports by eminent international jurists, the ‘draft articles’ for the

UNWC were approved in 1994. Upon receiving the ILC’s draft articles, the UN General Assembly

decided to convene a working group to negotiate a convention on the basis of these articles. The

Litke & Rieu-Clarke, 4 Feb 2015

http://www.un.org/law/ilc/

working group met on two occasions in 1996 and 1997, prior to the UNWC being adopted on 21 May

1997 by 103 votes in favour, 26 abstentions and 3 votes against. It entered into force once the

Convention was ratified by 35 countries. Viet Nam became the 35

country to ratify the Convention on

17 August 2014.

1.3 OVERVIEW

The main purpose of the UNWC is to codify international norms relating to non-navigational uses of

international watercourses. This is encapsulated in the Preamble with its stated aim to “ensure the

utilisation, development, conservation, management and protection of international watercourses and

the promotion of the optimal and sustainable utilisation thereof for present and future generations”

and taking into account “the special situation and needs of developing countries.”

International rivers and transboundary ecosystems under the UNWC are referred to as

‘watercourses’, which has been legally defined to include all the connected surface and groundwater

flowing into a common terminus. This means the ‘watercourse’, as derived from Article 2(a) and (b) of

the Convention, applies to rivers that cross international boundaries, including major and minor

watercourses, their tributaries, and connected lakes and groundwater, even when these individual

components are entirely located within a single state.

The meeting record of the drafting committee provides insight into the concept of ‘watercourses and

its application’. Initially, the drafting committee discussed the use of the term ‘international drainage

basin’, but many states objected, arguing that this phrasing could result in regulation not only of water

use, but also of land territory. Ultimately, the term ‘watercourse’ was chosen and supported by states.

However, many academics argue that the scope of ‘watercourses’ as defined by Art. 1(1) of the

UNWC indirectly applies to land-based activities within a river basin, to the extent that such activities

might be relevant for the use, protection and management of an international watercourse.

1.4 PRINCIPLES

The core of the UNWC Part II sets out general principles and includes what is regarded as the most

significant provision in the whole text: ‘Equitable and Reasonable Utilisation and Participation’

(Articles 5 and 6). The Convention provides a detailed set of criteria for determining equitable and

reasonable use irrespective of context, which include: (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 the watercourse

state; (d) the effects of the use or uses of the watercourse in one watercourse state on other

watercourse states; (e) existing and potential uses of the watercourse; (f) conservation, protection,

development and economy of the water resources of the watercourse and the cost of measures taken

to that effect; and (g) the availability of alternatives of comparable value to a particular planned or

existing use.

http://www.unwatercoursesconvention.org/the-convention/part-i-scope/article-2-use-of-terms/2-1-2-international-

watercourse/

Significantly, the UNWC is the first legal instrument adopted at the universal level that clearly spells

out the duty to cooperate as a general principle of international water law (Art. 8). It further defines

that cooperation shall be based on principles of sovereign equality, territorial integrity, mutual benefit

and good faith. To support cooperative development of the basin, states are obligated “to take all

appropriate measures” (Art. 7) to utilise an international watercourse so as not to cause significant

harm to another riparian state.

1.5 PROCEDURES

Part III of the UNWC provides procedural guidelines, including an obligation of prior notification that

must be followed when initiating any new planned measures in one state that may have significant

detrimental impacts on other riparian states sharing the watercourse. It then outlines the

environmental provisions by laying out the unqualified obligation for states to “protect and preserve

the ecosystems of international watercourses” (Art. 20). The UNWC also outlines duties whereby

states must immediately notify other states of emergency situations that pose an imminent threat to

the basin states. These include both natural threats such as floods, ice breakage, landslides or

earthquakes, and manmade threats such as industrial accidents (Articles 27 and 28).

Finally, it provides for dispute resolution procedures, allowing a state to pursue judicial and/or

administrative procedures against another, and makes automatic dispute resolution procedures

compulsory if negotiations are not settled within six months (Articles 32 and 33). Annexes to the

UNWC outline specific processes such as Arbitration (Annex II).

1.6 ADOPTION AND ENTRY INTO FORCE

The UNWC was adopted by the UN General Assembly in 1997 as a total of 103 UN Member States

voted in its favour. Only three countries voted against: Burundi, China and Turkey. Among the

countries sharing the Ganges River, Nepal and Bangladesh (upper and lower riparian respectively)

voted in favour of the UNWC, while India (a middle and upper riparian state) abstained from voting.

It took 17 years, until 2014, for the Convention to get the minimum of 35 ratifications required for it to

come into force. There are various reasons for this delay. First, the Convention has no secretariat or

any specific entity to push for its ratification. The timing of its adoption is also a factor; the 1990s are

referred to as the “decade of treaty congestion,” with the global focus around the ratification of the UN

Convention on Biological Diversity and the Kyoto Protocol. In South Asia, both the Ganges and

Mahakali Treaties were signed in 1996; Cambodia, Lao PDR, Thailand and Viet Nam in the Lower

Mekong were busy negotiating the Mekong River Agreement, which they signed in 1995.

The lack of awareness about the UNWC, especially regarding the content of its specific provisions

and how they could be implemented, also contributed to the delay in ratification. None of the GBM or

SAARC countries had ratified the UNWC. China expressed concerns about the number of articles, felt

the Convention was too detailed and complex, and worried that the authority of fact-finding missions

was too broad and could damage state confidentiality or commercial secrets. India disagreed with the

provision on mandatory third-party intervention, and Pakistan felt that the dispute resolution

mechanisms were “not fully binding.”

Salman, 2015

2 AGREEMENTS BETWEEN INDIA AND NEPAL

Currently, three bilateral agreements exist between India and Nepal on the three tributaries of the

Ganges River. The agreements on the Kosi and Gandak Rivers were first signed in the 1950s, and

the Mahakali Treaty was ratified in 1996. These Agreements were not inspired by any visions of

basin-level cooperation; they were conceived by India and Nepal to solve specific problems, such as

those related to flooding, or to jointly develop multipurpose dam projects.

2.1 THE REVISED AGREEMENT ON THE KOSI PROJECT BETWEEN NEPAL

AND INDIA, 1966

2.1.1 EVOLUTION

The Kosi is a transboundary tributary of the Ganges River. It is 720km long from its origin to

confluence with Ganges River, and drains an area of about 74,500km

, which includes part of China

(Tibet), India (Bihar) and Nepal. The Kosi River Basin is prone to flooding and is a highly meandering

river.

The Kosi Project was sanctioned by the government of India in 1953 and then endorsed by the

government of Nepal, followed by the signing of the agreement in 1954.

The Kosi Project was the

first joint venture between India and Nepal on a shared river and was presented as a mutually

beneficial Multipurpose Scheme for both countries on flood control, irrigation and hydropower.

However, due to criticism of the Kosi Project Agreement, particularly in Nepal, it was amended in

1966.

2.1.2 OVERVIEW

The Amended Agreement between His Majesty’s Government of Nepal and the Government of India

concerning the Kosi Project, 1966, (the Revised Kosi Agreement) defines the understanding between

India and Nepal on implementing the Kosi Project for flood control, irrigation, generation of

hydroelectric power and erosion control by India in the territory of Nepal.

Consisting of 16 Articles and the letters exchanged between the Parties, the Revised Kosi Agreement

defines the terms and conditions for the surveys, investigations, construction, maintenance and

operations of the Kosi Project, thus limiting the application of the Agreement to the rights,

responsibilities and obligations of Parties with respect to the requirements of the project.

2.1.3 PRINCIPLES

The Revised Kosi Agreement is based on the principles of ‘cooperation’ and ‘common benefits’. The

Agreement clearly stipulates the rights and responsibilities of India and Nepal regarding the

implementation of the Kosi Project. The Agreement implicitly recognises the concept of the ‘river

basin’ when it refers to the soil conservation measures and afforestation in the catchment of the river

For details on the origin of the Kosi Project, see Dinesh Kumar Mishra’s "Refugees of the Kosi

Embankments,"

https://www.indiawaterportal.org/sites/indiawaterportal.org/files/refugees-of-kosi-

embankments_dinesh-kumar-mishra.pdf

in view of the “complete solution to the ‘Kosi problem’ in future.” Furthermore, Article 4 mentions the

‘Kosi Basin’ in reference to Nepal’s right to withdraw water for irrigation or any other purpose.

The Agreement is grounded in the well-established IWL principle of sovereignty. Although the

Agreement allowed India to undertake construction and maintenance of the Kosi Project, there is

clear recognition of Nepal’s right to withdraw water for irrigation and to use the river and its tributaries

for navigation and fisheries.

2.1.4 PROCEDURES

The Agreement defines the procedures regarding the implementation of the Kosi Project, such as the

authority of execution, royalties, land lease and compensation for use of land and the mechanism for

dispute resolution.

As per the Agreement, the land and properties acquired as part of the ‘Kosi Project Area’ were leased

to India for 199 years. The Agreement also provides that in case of intentional (public or private) land

submergence, India will need to secure the prior approval of the government of Nepal. The

Agreement requires compensation be paid for four classes of land: a) cultivated land, b) forest land, c)

village land and d) immovable property.

Under the Agreement, Nepal is entitled to 50% of the total hydropower generated by any powerhouse

situated within a 10 mile (16km) radius of the barrage site. The construction of transmission lines up

to a mutually agreeable point on the India-Nepal border is also the responsibility of the Indian

government. However, the power generated is not free for Nepal, and is subject to a mutually

agreeable tariff.

The Agreement mentions that navigation and fishing rights in the Kosi River in Nepal will continue to

rest with Nepal. However, navigation and fishing within two miles of the barrage is regulated through

special permits issued by Nepalese authorities in consultation with the Executive Engineer of the Kosi

Barrage.

Any dispute concerning the construction, effect or interpretation of any provision of the Agreement

has to be settled through discussion. In cases where discussion fails, any party can give written notice

to refer the case for arbitration. Within 90 days of the receipt of notice by the other party, a commonly

agreed-upon arbitrator can decide the case. If the parties don’t agree to the decision of an arbitrator,

the parties can consult and appoint an umpire whose decision will be final. However, the Agreement

does not mention any timeline for resolving disputes.

2.1.5 ENTRY INTO FORCE

The Kosi Agreement came into force soon after it was signed in 1954. By the time it was revised in

1966, most of the works related to the Kosi Project had already been completed, a fact noted in the

Preamble of the Revised Agreement. The Kosi Project and the Agreement had been contentious

since the very beginning and were criticised in both India and Nepal. The objections raised in Nepal

were on the grounds of the extraterritorial nature of the project, submergence of fertile land in Nepal,

and unfair compensation. Though the Kosi Project (the main barrage) is under the territorial

jurisdiction of Nepal, the Agreement does not envisage any role for the government agencies and

institutions of Nepal in project implementation. All practical and operational measures, from project

surveys to soil conservation and afforestation programmes to solve the Kosi flood problem, are to be

decided by the State Government of Bihar (India) through a designated Chief Engineer of the Kosi

Project.

In India, the Kosi Project has been criticised for its inability to solve the flood problem in the state of

Bihar. The Kosi Agreement is therefore not regarded as progressive or adequate to manage such a

dynamic river system as the Kosi for the permanent solution of flooding. There is a clear need to

broaden the focus of the Agreement to include a basin-level approach and foster cooperation

between India and Nepal to implement integrated river basin management approaches.

2.2 THE AGREEMENT ON THE GANDAK IRRIGATION AND POWER PROJECT,

1959 (REVISED 1964)

2.2.1 EVOLUTION

The Gandak River, also known as the Narayani or Gandaki, is one of the major rivers in Nepal and a

left bank tributary of the Ganges in India. It has a total catchment area of 46,300km

, most of it in

Nepal.

The Agreement between His Majesty's Government of Nepal and the Government of India on the

Gandak Irrigation and Power Project, 30 April 1964 (the Gandak Agreement) was concluded to

operationalise the Irrigation and Power Project on the Gandak River in Nepal. The Gandak

Agreement was approved by the Planning Commission of India and endorsed by the government of

Nepal, leading to its signing on 4 December 1959. The Agreement was revised to address the

concerns raised by Nepal and the revised Agreement was ratified in 1964.

2.2.2 OVERVIEW

The Gandak Agreement concerns the surveys and investigations for the construction, maintenance

and operations of the Gandak Project. This includes the construction of a barrage and a system of

irrigation and water distribution canals in Nepal where the Gandak River forms the boundary with

India. The Gandak Agreement also includes provisions for India to construct a 15,000kW hydro-dam

and transmission lines to share power between the two countries.

2.2.3 PRINCIPLES

Similar to the Kosi Agreement, the Gandak Agreement is based on the principles of enhancing the

‘common interests’ or ‘common benefits’ derived from the Gandak River by developing a barrage,

irrigation canal infrastructure and hydropower. Significantly, Nepal’s riparian rights and prior use rights

to the Gandak River are respected so long as they do not give preference to the water requirements

of the Gandak Project. The sovereignty and territorial jurisdiction of Nepal with respect to the lands

made available to India for survey and investigation remains unimpaired under the Agreement.

2.2.4 PROCEDURES

The Gandak Agreement mentions procedures related to surveys, investigations, authorisation, land

acquisition, land transfer, compensation and maintenance of primary, secondary and tertiary canal

systems. The land acquired by the government of Nepal for the Gandak Project was to be transferred

to the government of India for a one-time fee and additional land required for maintenance work etc.

would be compensated on a case-by-case basis and mutually agreed upon.

The Gandak Agreement includes a provision to deal with accidents caused by damage to any Gandak

Project structure (Art. 2(ii)). However, the responsibility for preventing such damage rests fully with

India. The dispute resolution mechanism is similar to that of the Kosi Agreement, including the

provision of arbitrators and umpires.

2.2.5 ENTRY INTO FORCE

The Gandak Agreement was signed on 4 December 1959 but came into force only when it was

amended in 1964. The Agreement has been criticised in Nepal for two main reasons. The first is the

high social cost, as the project led to the submergence of fertile land and displacement of people

without an adequate compensation and rehabilitation plan. The second is the low level of involvement

by Nepalese institutions in the design, development and the maintenance of the project, except for the

tertiary canal system, which had been handed over to Nepal after the project was completed. On the

Indian side, the Gandak project is regarded as obsolete; it supplies water when it is not needed and

does not serve the areas which are most water scarce.

2.3 THE MAHAKALI TREATY, 1996

2.3.1 EVOLUTION

The Treaty of His Majesty's Government of Nepal and the Government of India concerning the

Integrated Development of the Mahakali River Including Sarada Barrage, Tanakpur Barrage and

Pancheshwar Project, 12 February 1996 (the Mahakali Treaty) was negotiated against the backdrop

of the 1920 Agreement on Sarada Barrage (Mahakali is known as ‘Sarada’ in India) and the 1991

Agreement on Tanakpur Barrage between India and Nepal on the Mahakali River System.

Nepal was not satisfied with its share of water under the Sarada Agreement. To address Nepal’s

concerns, and to find an alternative to the aging Sarada barrage, India and Nepal signed an

Agreement for the construction of Tanakpur Barrage in December 1991. As per the Agreement, Nepal

would provide India with land for the construction of Tanakpur barrage. In exchange, India agreed to

share water with Nepal for irrigation. India also agreed to supply 10mW of electricity from the

Tanakpur power station to Nepal, free of charge, as a "goodwill" gesture.

2.3.2 OVERVIEW

As indicated in the preamble, the Mahakali Treaty represents the desire of India and Nepal to jointly

develop the Mahakali River’s water resources. The Treaty defines the obligation of parties and their

corresponding rights and duties.

The Treaty addresses the concerns in the Agreements on the Sarada Barrage (Art. 1) and defines the

modalities for land transfer for the construction of the Tanakpur Barrages (Art. 2). The Treaty also

provides a framework for the joint development and implementation of the Pancheshwar Multipurpose

Project (PMP) on the stretch of the river forming the boundary between the two countries. The Treaty

can be regarded as an improvement on earlier treaties between India and Nepal, as it acknowledges

the need for integrated development of the Mahakali Basin and provides a mechanism to establish a

Mahakali River Commission.

2.3.3 PRINCIPLES

The Treaty’s preamble highlights the determination of the parties to cooperate to develop the

Mahakali River’s water resources, stated as a “duty to cooperate.” The Treaty includes principles of

reasonable and equitable utilisation, expressed through the provision of equal entitlement to Mahakali

water and through the joint development of the PMP to enhance hydropower, irrigation and flood

control in each country. The Mahakali Treaty is the only treaty in South Asia that acknowledges the

significance of river ecosystems (Art. 1(2)) and includes a provision for maintaining minimum flow in

the Mahakali River (Art. 7). In addition, the water needs of communities is acknowledged (Art. 7), and

the Treaty clarifies that maintenance of minimum flow shall not preclude the use of water by

communities. There is explicit recognition of the no harm principle. The Treaty also provides for the

establishment of a Mahakali River Commission guided by the principles of equality, mutual benefit

and no harm to either party.

2.3.4 PROCEDURES

The Treaty defines the procedures linked to Nepal’s rights to the water from the Sarada Barrage (Art.

1) and to the transfer of 2.9ha of land (in Jimuwa Village) by Nepal to India for the construction of the

eastern afflux bund of the Tanakpur Barrage (Art. 2). However, the major focus of the Treaty is on

defining the modalities linked to the joint development of the PMP on the stretch of river forming a

boundary between the two countries. The Pancheshwar Development Authority (PDA) has been

established as a dedicated institutional mechanism composed of an equal number of members from

each country, responsible for the joint development of the PMP (Art. 10). The key functions of the

PDA include collection of information, inspection of all structures created under the Treaty, and

making recommendations for the implementation of the Treaty and conservation and utilisation of the

Mahakali River. The Treaty also provides for the establishment of Mahakali River Commission (MRC)

that would implement the Treaty, make recommendations on the conservation and use of Mahakali

River and act as the first forum to examine any disputes between the parties concerning the

interpretation or implementation of the Treaty. In case a dispute is not resolved by the MRC, the

parties can jointly appoint an arbitrator. If the parties do not agree with the arbitrator’s decision, within

90 days of receiving a proposal either party may request the Secretary-General of the Permanent

Court of Arbitration at the Hague to appoint an arbitrator who is not a national of either country.

2.3.5 ENTRY INTO FORCE

The Mahankali Treaty could not be implemented immediately after its ratification by India and Nepal in

1997, but since it replaced the Sarada Agreement and Tanakpur Agreement, it remained in force with

respect to the two projects mentioned in Articles 1 and 2. The implementation of the PMP has recently

increased with the establishment of the PDA under Article 10. The PDA has been tasked with the

preparation of a detailed project report (DPR) for the implementation of the PMP, but little has been

discussed on the need for a Joint River Commission to support the integrated development of the

basin.

3 AGREEMENTS BETWEEN BANGLADESH AND INDIA

3.1 THE GANGES TREATY, 1996

3.1.1 EVOLUTION

Bangladesh and India signed a Treaty of Friendship in 1972 and established the Joint Rivers

Commission (JRC). A statute defining the composition and functions of JRC was agreed and signed

by two countries in Dhaka on 24 November 1972..

In 1977, both countries signed a five-year agreement to share the Ganges waters at Farakka and to

augment the river’s flow in the dry season (1 January to 31 May). In the 1978 JRC meeting, both India

and Bangladesh shared their proposals for augmenting dry season flow. Bangladesh’s proposal was

to store water by constructing dams and reservoirs in upper parts of the Ganges Basin, mostly in

Nepal; India’s proposal was to make an inter-basin transfer

of water from the Brahmaputra to the

Ganges River system through canals, based on the assumption that the Brahmaputra had plenty of

water and was mostly untapped. Neither of these proposals materialised, but the devastating floods of

1988 in Bangladesh re-emphasised the need for bilateral cooperation and the Ganges Water Sharing

Treaty was signed in 1996.

3.1.2 OVERVIEW

The Ganges Treaty marks an important advancement in the water governance relationship between

the two countries, as the Treaty resolved the long-standing dispute over Ganges River water use

during the dry season and was also the first time that a long-term (30-year) water governance

agreement was signed by India and Bangladesh.

The Treaty includes 12 Articles and two Annexes. Articles I to III are concerned with the division of

volumes of water based on a formula described in Annex I. Articles IV to VII provide for the

establishment of a joint Committee (JC) consisting of an equal number of representatives nominated

by both governments. Articles VIII and IX highlight the desire of the two countries to work together on

a water-sharing agreement. Articles X to XII are concerned with the periodic review of the Treaty, the

water-sharing formula when no agreement is in force and the Treaty’s entry into force.

3.1.3 PRINCIPLES

The preamble mentions the term ‘river basin’ but the Treaty is for sharing volumes of water and does

not account for the other values and uses of the river. It does not even take into consideration the

uppermost riparian nation, Nepal, meaning that it neither takes a basin-level approach to river

management nor factors in the effects of upstream use of the Ganges on water availability at the

Farakka Barrage. There is no mention of basin-wide approaches to finding integrated solutions and

increasing dry season flow. However, the Treaty under Articles IX and X clearly mentions that any

future agreement on shared rivers between Bangladesh and India and future revisions of the Ganges

Treaty shall be based on the principles of equity, fairness and no significant harm.

http://www.fao.org/nr/water/aquastat/countries_regions/profile_segments/gbm-IntIss_eng.stm

3.1.4 PROCEDURES

Articles I, II and III and two Annexes of the Treaty define the formula for sharing quantities of water

between India and Bangladesh during the dry season, from 1 January to 31 May. Article IV defines

the main responsibility of the JC, which is to support the implementation of the Treaty. The JC is

entrusted with ensuring the availability of daily water flow data from the Farakka Barrage (India) and

the Hardinge Bridge (Bangladesh). The JC is required to submit all data collected from the two

locations and provide annual reports on the implementation of the Treaty to both governments. The

JC is also responsible for looking into disputes that may arise between the Parties. If the JC fails to

resolve the disputes, it must refer the Parties in conflict to the two governments.

3.1.5 ENTRY INTO FORCE

The Ganges Treaty entered into force upon signing and will remain valid for 30 years (until 2026).

However, the Treaty has a provision which allows the parties to review it every five years or fewer

(Art. X) based on mutual agreement and the principles of equity and no significant harm. Although the

Treaty has not been amended or changed since it came into force on 12 December 1996, the

downstream environmental impact of the Farakka Barrage and augmentation of water flow still remain

contentious issues for Bangladesh. This has hindered the full implementation of the Treaty or the

development of a basin-level management approach to augmenting dry season flow.

4 COMPARATIVE LEGAL ANALYSIS OF THE UNWC AND

AGREEMENTS ON GANGES RIVERS

4.1 THE UNWC AND THE KOSI AGREEMENT, 1966

4.1.1 SCOPE AND DEFINITIONS

UNWC, 1997

The Revised Agreement between India and

Nepal on the Kosi Project, 1966

The UNWC applies to uses of international

watercourses other than navigation and to

measures for the purposes of “protection,

preservation and management related to the uses

of those water

courses and their waters” (Article

1(1)). Watercourse uses which affect navigation or

which are affected thereby also fall within the

scope of the Convention.

Under the UNWC,

“watercourse” is defined as a

river system including both surface water, which

corporates a river’s tributaries, as well as

groundwater, flowing into a common terminus

(Article 2(a)). An “international watercourse” is one

which falls within or touches the boundary of two

or more states (Article 2(b)). A “watercourse state”

is a “Stat

e Party to the present Convention in

whose territory part of an international watercourse

is situated or a Party that is a regional economic

integration organization, in the territory of one or

more of whose member states part of an

international watercourse is situated” (Article 2(c)).

“regional economic integration organization” is

any regional inter-

governmental institution which

operates for the purposes of economic integration

and development (Article 2(d)).

The Kosi Agreement is for the implementation of the

Kosi Project and not one that reflects an

understanding between the countries to jointly

manage the entire Kosi watercourse. The

Agreement is about procedure and protocols to be

followed for constructing the Kosi Barrage and for

carrying out other civil works in the area acquired

for the Kosi Project in Nepalese territory.

Though its primary objective is to achieve flood

control and other non-

navigational uses of Kosi

waters such as irrigation and hydropo

wer, the

Agreement does not define navigational rights in the

Kosi in Nepal. The Agreement focuses on the Kosi

Project rather than the Kosi River throughout its text

and does not define the river and its tributaries as

the Indo-Nepal Kosi Basin.

Compatibility and gaps

• The scope of the Kosi Agreement is very limited compared to the UNWC definition of watercourses

and nowhere defines the Kosi River Basin or the Kosi system. There is no mention of groundwater in

the entire text of the Agreement, though there is mention of the tributaries of the Kosi River in Nepal

with regard to Nepal’s rights to this water.

4.1.2 SUBSTANTIVE PRINCIPLES: SUSTAINABLE DEVELOPMENT

The UNWC refers explicitly to the principle of

sustainable development in its text. Article 24,

which concerns the management of international

watercourses, stipulates that “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.”

Articles 24(1) and 24(2) then state that “f

or the

purposes of this article, ‘management’

” refers, in

particular, to: (a) Planning the sustainable

development of an international watercourse and

providing for the implementation of any plans

adopted; and (b) Otherwise promoting the rational

and optimal utilization, protection and control of the

watercourse.” In this regard, the UNWC provides a

legal reference point for the practical application

and utilis

ation of the principle of sustainable

development as it pertains t

o the planning and

adoption of plans in the overall management of an

international watercourse.

The Agreement on the Kosi Project makes no

explicit or implicit reference to the principle of

sustainable development of the Kosi River or Kosi

Basin.

The Chief Engineer of the Kosi Project is

responsible for overseeing

the implementation of

the Treaty, carrying out surveys and investigations

on storage dams or detention dams on the Kosi,

and taking the soil conservation and afforestation

measures required to completely solve flood

problems in the Kosi Basin. The Agreement seeks

to solve the Kosi problem permanently but there is

no clear mechanism to achieve this sustainably, as

the Agreement does not

mention sustainable

development. This may be attributed to the

developments in international environmental law

since the Agreement was signed, and the fact that

the concept of sustainable development itself only

gained worldwide traction in the 1970s.

Compatibility and gaps

• The Kosi Agreement nowhere refers to ‘sustainable management’ of the Kosi Basin, whereas in the

UNWC, the focus is on integrated basin-level development.

• There are no control measures that would ensure the protection of the Kosi River. Soil conservation

and afforestation, which are necessary for silt management and which ideally require joint planning

and execution with upstream stakeholders (Nepal, in this case), were completely left to the Chief

Engineer of the Kosi Project. As a result, the parties completely lack the obligation to ensure de-silting

of the barrage and flood protection embankments.

4.1.3 SUBSTANTIVE PRINCIPLES: EQUITABLE AND REASONABLE UTILISATION

In the context of international watercourses, legal

experts have determined that the term “equitable”

within the UNWC and cust

omary international law

can be understood to mean “the equal right to use

the water for beneficial purposes, rather than

division into equal portions.” The UNWC does not

define what “equitable and reasonable” means in

specific legal terms; instead, it prov

ides guidance

on how equitable and reasonable utilisation is to be

determined in a practical sense by listing the major

indicative factors to be considered when evaluating

whether or not a new or increased use is consistent

with the principle in Articles 5 and 6.

The Kosi Agreement does not provide a framework

for sharing or allocation of water.

However, the

Agreement seeks to acquire the benefits from the

Kosi Project equitably. The Agreement also does

not interfere with Nepal’s prior usage rights of the

Kosi River.

Compatibility and gaps

• There is no clear mention of equitable and reasonable criteria for determining the benefits from the

Kosi Project within the context of Article 6 of the UNWC. This can be attributed to the lack of guidance

and scientific calculation of benefits from the Kosi Project at the time of conception and

implementation. The Kosi Agreement would benefit from guidance provided by Article 6 of the UNWC

to reassess the uses of the Kosi Basin resources and the Kosi Project.

4.1.4 SUBSTANTIVE PRINCIPLES: OBLIGATION NOT TO CAUSE SIGNIFICANT HARM

(AND RELATED DUTY TO PROTECT ECOSYSTEMS)

Article 7 of the UNWC deals in detail with the

general obligation not to cause significant harm. It

begins by stating that “Watercourse States shall, in

utilizing an international watercourse in their

territories, take all appropriate measures to prevent

the causing of significant harm to other watercourse

States” (Article 7(1)). Directly related to this general

obligation, Article 7(2) goes on t

o specify that

“w

here significant harm nevertheless is caused to

another watercourse State, the States whose use

causes such harm shall, in the absence of

agreement to such use, take all appropriate

measures, having due regard for the provisions of

Article

s 5 and 6, in consultation with the affected

State, to eliminate or mitigate such harm and,

where appropriate, to discuss the question of

compensation.” It is this explicit reference to “having

due regard” that many legal experts consider as

giving ultimat

e legal primacy to the principle of

equitable and reasonable utilis

ation over the

obligation not to cause significant harm. Indeed, this

direct reference “in effect recognizes that, where it

can be shown that significant harm occurs, but it

can also be proven that such harm is equitable and

reasonable, a State will be in compliance with

international law” and inter alia customary

international law as codified within the UNWC.

The Agreement does not include any type of ’no

harm’ rule. However, Article 3 includes safeguards

in the implementation of the Kosi Agreement. Major

construction work not envisaged in the amended

plan (Amended Annex A) under the Agreement

referred to in Clause 1(ii) requires the prior approval

of the government of Nepal. After approval is

received, then construction can be allowed to start

Thus, in effect, the Agreem

ent imposes an

obligation of prior notification for new measures and

puts in place a clearance mechanism by way of

prior approval of the government for whose territory

new construction measures are planned.

Compatibility and gaps

• The references to safeguards are in Article 3 of the Kosi Agreement, which requires the prior approval

of Nepal. The consultation mechanism, though weak, is present. However,

the element of due

diligence to eliminate or mitigate threats or imminent danger resulting from the

planning and

implementation of the Kosi Project is missing.

• Compensation under the Kosi Agreement remains a very controversial issue. The Agreement provides

a detailed methodology to determine compensation for submerged land but does not provide any

mechanism for compensation if the project causes significant harm.

4.1.5 PROCEDURAL OBLIGATIONS: PRINCIPLE OF COOPERATION AND

INFORMATION EXCHANGE

The over-arching duty to cooperate is encapsulated

in Article 8 of the UNWC where it obliges

watercourse states to “

cooperate on the basis of

sovereign equality, territorial integrity, mutual

benefit and good faith

in order to attain optimal

utilization and adequate protection of an

international watercourse” (Article 8(1)).

The Kosi Agreement includes several provisions on

cooperation and information exchange. However,

this is specific to the Kosi P

roject and not any

planned measures. The sovereignty rights and

territorial jurisdiction of the government of Nepal,

including the application and enforcement of the law

of Nepal on issues linked to leasing of land, are

unimpaired (Art. 5(5)). Regarding information

exchange, the Agreement requires that

all data,

specimens, reports and other results of surveys and

investigations carried out by or on behalf of the

Government of India shall be made available to

Nepal. In turn, Nepal is also obligated to share any

relevant data upon India’s request.

Compatibility and gaps

• The sovereign equality of Parties is clearly mentioned in the text of the Kosi Agreement, and the data

and information-sharing mechanism is detailed. However, the requirements for data sharing are

narrow, only focusing on the project area in Nepal with no obligation for data sharing from any other

part of the river in either India or Nepal. Information exchange under the Kosi Agreement is therefore

reciprocal in a true sense.

4.1.6 PROCEDURAL OBLIGATIONS: PRINCIPLE OF PRIOR NOTIFICATION,

CONSULTATION AND NEGOTIATION (OVER PLANNED MEASURES)

Article 11 of the UNWC requires Parties to

exchange information, consult each other and, if

necessary, negotiate plan

s with regard to their

possible effects on the condition of a given

international watercourse. Article 13(a) dictates

that the state providing notification must allow six

months for the notified state(s) to evaluate this

information, carry out their own studies, and

ultimately reply. With regard to consultations and

negotiations, Article 17(1) dictates that where the

notifying

state has communicated via reply that

they determine the planned measure is

inconsistent with Articles 5 and/or 7, both the

notifying and notified states are bound to “enter

into consultations and, if necessary, negotiations

with a view to arriving at an equitable resolution of

the situation.

” In this regard, all states must

engage in any consultations and negotiations “in

good faith [and] pay reasonable regard to the

rights and legitimate interests of the other State”

(Article 17(2)).

Obligations for notification and consultation can be

found throughout the Kosi Agreement, but they

pertain to the planned measures already agreed

upon by the Parties. As per Article 3 of the Kosi

Agreement, any major construction work which is

not mentioned in the Agreement requires prior

approval from Nepal. There is an obligation under

the Agreement to acquire

prior approval, notify

Nepal and include them in various activities during

the construction phase of the Project. However, no

such obligation exists for the post-construction

phase, which leaves a considerable

gap in the

implementation framework.

Compatibility and gaps

• Similar to the UNWC, the Kosi Agreement includes provisions for prior notification and approval for

unplanned measures not listed in the Annexes of the Agreement. However, the scope of the prior

notification and consultation clause of the Kosi Agreement is limited to the construction phase and for

areas and territory not included in the plan, whereas the UNWC sets the overall procedural obligation

to provide information and notification for all planned measures on a shared watercourse.

4.1.7 PROCEDURAL OBLIGATIONS: DISPUTE RESOLUTION PROCEDURES

Article 33 of the UNWC, supported by the only

Annex to the Convention’s text, provides the

UNWC legal fr

amework for the settlement of

disputes. Article 33(1) stipulates that in the absence

of an applicable agreement, in the event of a

dispute between two or more parties concerning

the interpretation or application of the UNWC,

states are obligated to “seek a

settlement of the

dispute by peaceful means.”

State parties to the UNWC are bound by the

subsequent provisions under Article 33. Article

33(2) dictates that if such parties to a dispute fail to

reach an agreement via negotiation = they can then

“jointly seek the good office, or request mediation

or conciliation by, a third party, or make use, as

appropriate, of any joint water course institutions

that may have been established by the agreement

to submit the dispute to arbitration or to the

International Court of Justice.”

Article

33(3) provides detailed timelines and

procedures whereby, if after six months from the

time a state party requests negotiations the parties

to the dispute have failed to negotiate a solution,

the dispute must “be submitted, at the request of

any of the parties to the dispute, to impartial fact-

finding in accordance with paragraphs 4 to 9,

unless the parties so otherwise agree.” The legal

role and relevance of impartial fact finding in the

overall scheme of the UNWC dispute resolution

procedures cannot be underestimated because it is

largely unique to this framework agreement within

the field of international water law and

transboundary basin or

river agreements.

Furthermore, given the range of dispute settlement

mechanisms provided by Article

33(2), it remains

the only truly non-

negotiable, binding procedure

within the UNWC.

The Kosi Agreement envisages that disputes be

settled peacefully but does not clearly stipulate the

level at which parties need to engage for

settlement of such disputes. The Agreement states

that “in the event of disputes arising out of the

construction of the Kosi Project or the

interpretation of the meaning of this Agreement, or

with respect to rights and liabilities of the parties

hereunder, has to be first settled by discussion and

then arbitration.”

The Agreement also stipulates how arbitration be

carried out. If a dispute arises, any of the parties

may give notice in writing to the other party of its

intention to refer the dispute to arbitration. Upon

the delivery of such notice, within 90 days, the two

parties shall nominate an arbitrator. If the dispute is

not resolved, the Agreement requires an umpire be

appointed through mutual consultation. The

umpire’s decision shall be final and binding.

The mechanism appears to be three-tiered but has

inherent weaknesses. Firstly, the parties are not

obligated to inform each other of their intention to

go to arbitration. Secondly, the precise wording is

that a dispute is to be “determined,” not resolved. If

the parties fail to appoint arbitrators, then they are

not obligated to settle the dispute by any other

means. If an issue requires urgent attention, 90

days to nominate an arbitrator is too long. Failure

of arbitration can lead to a total failure of the

dispute mechanism, as it

can be completely

defeated if the two parties do not agree on the

umpire they want to appoint.

Compatibility and gaps

• The Kosi Agreement does provide for a dispute settlement mechanism. With inherent weaknesses in

the process as highlighted above, the mechanism is almost insignificant as the dispute can only be

‘determined’ and not necessarily resolved. The parties have no obligation to appoint an umpire in

case of disagreement. Another major gap compared to UNWC is that countries under the Kosi

Agreement have no locus standi to seek third party help if harm has been done.

4.2 THE UNWC AND THE GANDAK IRRIGATION AND POWER PROJECT, 1964

4.2.1 SCOPE AND DEFINITIONS

UNWC, 1997

The Agreement between India on the Gandak

Irrigation and Power Project, 1964

The UNWC applies to uses of international

watercourses other than navigation and to

measures for the purposes of “protection,

preservation and management related to the uses

of those watercourses and their waters” (Article

1(1)). Watercourse uses which affect navigation or

which are affected thereby, also fall within the

scope of the Convention.

Under the UNWC,

“watercourse” is defined as a

river system including both surface water, which

incorporates a river’s tributaries, as well as

groundwater, flowing into a

common terminus

(Article 2(a)) ; “International W

atercourse” is one

which falls within or touches the boundary of two or

more states (Article 2(b)) ; “watercourse state” is a

“State Party to the present Convention in whose

territory part of an international watercourse is

situated or

a Party that is a regional economic

integration organization, in the territory of one or

more of whose member states part of an

international watercourse is situated” (Article 2(c)) ;

and a “regional economic integration organization”

is any regional inter- governmental institution which

operates for the purposes of economic integration

and development (Article 2(d)).

The Gandak Agreement is for the implementation

of the Gandak Irrigation and Power Project with no

basin focus. Though the Agreement is not on the

navigational uses of the Gandak R

iver, it does

have a provision on the regulation of riverine traffic

across the barrage.

The Agreement focuses on the Gandak Project

and the obligation of each party with respect to the

requirements of the Project during construction,

operations and maintenance. The Agreement is

silent when it comes to the Gandak Basin or its

tributaries.

Compatibility and gaps

• The Gandak Agreement, being project-centric, significantly diverges from the UNWC definition of

watercourses or shared rivers. The Agreement nowhere defines the Gandak River or the Gandak

system and its tributaries. There is no mention of groundwater in the entire text of the Agreement.

4.2.2 SUBSTANTIVE PRINCIPLES: SUSTAINABLE DEVELOPMENT

The UNWC refers explicitly to the principle of

sustainable development in its text. Article 24,

concerns the management of international

watercourses. It

stipulates that “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” (Articles 24(1) and 24(2)), and then

states that “f

or the purposes of this article,

’management’ refers, in particular, to: (a) Planning

the sustain

able development of an international

watercourse and providing for the implementation

of any plans adopted; and (b) Otherwise promoting

the rational and optimal utilization, protection and

control of the watercourse.

” In this regard, the

UNWC provides a le

gal reference point for the

practical application and utilisation of the principle

of sustainable development as it pertains to the

planning and adoption of plans in the overall

management of an international watercourse.

The Agreement on the Gandak Project does not

make explicit or implicit reference to the principle of

sustainable development of the

Gandak River

Basin. Quarrying in the Project area for the

construction and maintenance of the Project can be

carried out after obtaining permission from Nepal

and paying rental fees on the area (Art. 4). Though

the Agreement includes post-project maintenance it

does not envisage any sustainability plan for the

development of integrated basin management

approaches.

Compatibility and gaps

The Gandak Agreement nowhere refers to ‘sustainable management’ of the Gandak River Basin and its

resources.

4.2.3 SUBSTANTIVE PRINCIPLES: EQUITABLE AND REASONABLE UTILISATION

In the context of international watercourses, legal

experts have determined that the term “equitable”

within the UNWC and customary international law

can be understood to mean “the equal right to use

the water for beneficial purposes, rather than

division into equal portions.” The UNWC does not

define what “equitable and reasonable” means in

specific legal terms; it instead provides guidance

on how equitable and reasonable utilisation is to

be determined in a practical sense by listing the

major indicative factors to be considered when

evaluating whether or not a new or increased use

is consistent with the principle in Articles 5 and 6.

The Treaty nowhere defines equitable and

reasonable utilisation but does include an agreed-

upon formula for sharing irrigation and hydropower

benefits. However, due to the limited scope of the

Treaty, the focus of benefit-

sharing is limited to

those from the Gandak Project itself.

Under the Gandak Agreement, the beneficial uses

of water for consumptive and non-navigational uses

arising from the Project should be shared equitably.

The Agreement also does not interfe

re with

upstream Nepal’s prior usage rights in the Gandak

River.

Compatibility and gaps

• Article 6 of the UNWC provides practical guidance for determining equitable and reasonable use, but

in the Gandak Agreement, the scope of benefit sharing is limited to benefits derived from the Gandak

Project.

4.2.4 SUBSTANTIVE PRINCIPLES: OBLIGATION NOT TO CAUSE SIGNIFICANT HARM

(AND RELATED DUTY TO PROTECT ECOSYSTEMS)

Article 7 of the UNWC deals in detail with the

general obligation not to cause significant harm. It

begins by stating that “Watercourse States shall, in

utilis

ing an international watercourse in their

territories, take all appropriate measures to

prevent the causing of significant harm to other

watercourse States” (Article 7(1)). Directly related

to this general obligation, Article 7(2) goes on to

specify that “Where significant harm nevertheless

is caused to another watercourse State, the States

whose use causes such harm shall, in the

absence of agreement to such use, take all

appropriate measures, having due regard for the

provisions of Articles 5 and 6, in consultation with

the affected State, to eliminate or mitigate such

harm and, where appropriate, to discuss the

question of compensation.” It is this explicit

reference to “having due regard” that many legal

experts consider as giving ultimate legal primacy

to the principle of equitable and reasonable

utilis

ation over the obligation not to cause

significant harm. Indeed, this direct reference “in

effect recognizes that, where it can be shown that

significant harm occurs, but it can also be proven

that such harm is equitable and reasonable, a

State will be in compliance with international law”

and inter alia

customary international law as

codified within the UNWC.

The Agreement does not mention the no harm

principles. The safeguards on the implementation of

planned measures are contained in Article 2(ii),

which stipulates that in case of any imminent

danger, the officers of the government of India will

take action and execute all necessary work to

prevent such accidents. The involvement of Nepal

in the process is not required under the Agreement.

Thus, in effect, the Agreement does not obligate all

parties to be notified and places all responsibility for

harm prevention, mitigation and response on the

government of India.

There is also no mention of a post-project

compensation mechanism. Only compensation for

the lands acquired has to be given at the time of

acquisition.

Compatibility and gaps

• The Gandak Agreement has much to learn from the UNWC on the no harm principle and its

substantive and procedural dimensions.

4.2.5 PROCEDURAL OBLIGATIONS: PRINCIPLE OF COOPERATION AND

INFORMATION EXCHANGE

The overarching duty to cooperate is encapsulated

in Article 8 of the UNWC where it obliges

watercourse states to “cooperate on the basis of

sovereign equality, territorial integrity, mutual

benefit and good faith

in order to attain optimal

utilis

ation and adequate protection of an

international watercourse” (Article 8(1)).

The principle of ‘cooperation’ runs throughout the

text of the Gandak Agreement in various activities

linked to the implementation and operation of the

Gandak Project, such as investigation and surveys

(Art. 1), execution and maintenance (Art. 2), land

acquisition (Art. 3), communication (Art. 5), and

irrigation and power development (Articles 7 and 8).

Compatibility and gaps

• The Gandak Agreement promotes cooperation between the states on the issue of joint investigation,

as well as during the construction and operation of the Project. Comparing the provisions of the

Treaty with the elements of cooperation as envisaged under the UNWC, the territorial integrity of the

Parties is unimpaired, and the mutual benefits are articulated as common interest and common

benefit.

4.2.6 PROCEDURAL OBLIGATIONS: PRINCIPLE OF PRIOR NOTIFICATION,

CONSULTATION AND NEGOTIATION (OVER PLANNED MEASURES)

Article 11 of the UNWC obliges states to: exchange

information, consult each other and, if necessary,

negotiate on the possible effects of planned

measures on the condition of an international

watercourse. Article 13(a) dictates that the state

providing notification must allow six months for the

notified state(s) to evaluate this information, carry

out their own studies, and ultimately reply. With

regard to consultations and negotiations, Article

17(1) dictates that where the notifying state has

communicated via reply that they determine the

planned measure is inconsistent with Articles 5

and/or 7, both the notifying and notified states are

bound to “enter into consultations and, if necessary,

negotiations with a view to arriving at an equitable

resolution of the situation.” In this regard, all states

must engage in any consultations and negotiations

“in good faith [and] pay reasonable regard to the

rights and legitimate interests of the other State”

(Article 17(2)).

In the Gandak Agreement, notification and

consultation runs concurrent to the implementation

of planned measures during the construction

phase. Following construction, there is very little

scope for notification, consultation or negotiation. A

majority of issues that would ordinarily require

notification are agreed upon in the Treaty itself with

the responsibility of prior notification resting with

the Chief Engineer of the Gandak Project. For

post-construction and maintenance of the Project,

all activities, even in the instance of an anticipated

accident, are already authorised by Nepal,

negating any need or possibility for any kind of

prior notification.

Compatibility and gaps

• There is no obligation on either party to notify or consult each other on any aspects of the Gandak

River after the Gandak Project is completed. The only platform to raise any issue remains the Joint

Kosi and Gandak Committee, which meets from time to time.

4.2.7 PROCEDURAL OBLIGATIONS: DISPUTE RESOLUTION PROCEDURES

Article 33 of the UNWC, supported by the only

Annex to the Convention’s text, provides the

UNWC legal framework for the settlement of

disputes. Article 33 (1) stipulates that in the

absence of an applicable agreement, in the event

of a dispute between two or more parties

concerning the interpretation or application of the

UNWC, states are obligated to “seek a settlement

of the dispute by peaceful means.”

State parties to the UNWC are bound by the

subsequent provisions under Article 33. Article 33

(2) dictates that if such parties to a dispute fail to

reach an agreement via negotiation requested by

one (or more of them in the case of multiple

parties) they can then “jointly seek the good office,

or request mediation or conciliation by a third

party, or make use, as appropriate, of any joint

water course institutions that may have been

established by the agreement to submit the

dispute to arbitration or to the International Court of

Justice.”

Article 33 (3) provides detailed timelines and

procedures whereby, if after six months from the

time of a state party requesting negotiations the

parties to the dispute have failed to settle through

negotiation or other means, the dispute must “be

submitted, at the request of any of the parties to

the dispute, to impartial fact-finding in accordance

with paragraphs 4 to 9, unless the parties so

otherwise agree.” The legal role and relevance of

impartial fact-finding in the overall scheme of the

UNWC dispute resolution procedures cannot be

underestimated because it is largely unique to this

framework A

greement within the field of

international water law and transboundary

basin/river agreements. Furthermore, given the

range of dispute settlement mechanisms provided

via Article 33 (2), it remains the only truly non-

negotiable, binding procedure within the UNWC.

The Gandak Agreement provides for resolution of

disputes concerning the construction of the

Project or interpretation of the Treaty through

discussion (peaceful means). In case the dispute

is not resolved, either party can inform the other in

writing about their intention to refer a dispute for

arbitration. If the case is selected for arbitration,

each party must nominate its arbitrator

, whose

decision would be final and binding. In case the

arbitrators are unable to agree, then the parties,

after due consultation, would appoint an umpire,

whose decision would be final and binding.

The provision of a neutral arbitrator is similar to

the independent fact-finding mission as defined

under the UNWC.

Compatibility and gaps

• Unlike the UNWC, the Gandak Agreement has no binding dispute-settlement mechanism. Any

dispute between the Parties on the construction, effect or meaning of the Agreement needs to settle it

by discussion or arbitration. However, there is no time limit defined within which the parties should

resolve the dispute.

4.3 THE UNWC AND THE MAHAKALI TREATY, 1996

4.3.1 SCOPE AND DEFINITIONS

UNWC

The Mahakali Treaty, 1996

The UNWC applies to uses of international

watercourses other than navigation and to

measures for the purposes of “protection,

preservation and management related to the uses

of those watercourses and their waters” (Article

1(1)). Watercourse uses which affect navigation,

or which are affected thereby, also fall within the

scope of the Convention.

Under the UNWC,

“watercourse” is defined as a

river system including both surface water, which

incorporates a river’s tributaries, as well as

groundwater, flowing into a common terminus

(Article 2(a)) ;

“international watercourse” is one

which falls within or touches the boundary of two

or more states (Article 2(b)) ; “watercourse state”

is a “State Party to the present Convention in

whose territory part of an international watercourse

is situated or a Party that is a regional economic

integration organization, in the territory of one or

more of whose member states part of an

international watercourse is situated” (Article 2(c))

;

and a “regional economic integration

organization” is any regional inter-governmental

institution which operates for the purposes of

economic integration and development (Article

2(d)).

The Mahakali Treaty is for non-navigational uses

and the integrated development of the Mahakali

River. The Treaty’s preamble clearly acknowledges

the transboundary nature of the Mahakali River by

recognising it as a boundary river between the two

countries.

Compatibility and gaps

• The scope of the definition of watercourses is very limited under the Mahakali Treaty. There is no

acknowledgement of the tributaries of the Mahakali River, and the focus is on the stretch of river

forming the boundary between India and Nepal.

4.3.2 SUBSTANTIVE PRINCIPLES: SUSTAINABLE DEVELOPMENT

The UNWC refers explicitly to the principle of

sustainable devel

opment in its text. Article 24,

which concerns the management of international

watercourses, stipulates that “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”

(Articles 24(1) and 24(2)), and then states that “for

the purposes of this article, ’management’” refers,

in particular, to: (a) Planning the sustainable

development of an international waterc

ourse and

providing for the implementation of any plans

adopted; and (b) Otherwise promoting the rational

and optimal utilization, protection and control of

the watercourse.

” In this regard, the UNWC

provides a legal reference point for the practical

application and utilis

ation of the principle of

sustainable development as it pertains to the

planning and adoption of plans in the overall

management of an international watercourse.

The Mahakali Treaty refers to the ecological needs

of the river and acknowledges the need to preserve

the river ecosystem (Art. 1(2)). The Parties are may

not obstruct or divert the

natural flow of the

Mahakali

River, except through prior agreement

(Art. 7).

The Treaty acknowledges the spirit of joint

development of the Mahakali R

iver through

collaborative means and seeks to promote it on the

basis of ‘equal partnership’

(Preamble), joint

operations (Art. 2(2a)), joint studies and preparation

of a DPR and mobilisation of finances

for joint

projects (Art. 3).

The Treaty provides for a

Mahakali River

Commission, consisting of an

equal number of

members from both countries,

to support the

integrated development of the Mahakali Basin. The

Commission is tasked with making

recommendations to both Parties for the

conservation and utilisation of the Mahakali River.

Compatibility and gaps

• In effect, the Mahakali Treaty does have very clear provisions to ensure sustainable development of

the river basin within the meaning of Article 24 of the UNWC. There are elements within the Treaty

that can be collectively interpreted to provide a framework to address ecological aspects of the river.

For example, there is an acknowledgement of the need to preserve the river ecosystem and not to

obstruct or divert the natural flow of the river. However, these are not supported by clear procedural

guidelines.

4.3.3 SUBSTANTIVE PRINCIPLES: EQUITABLE AND REASONABLE UTILISATION

In the context of international watercourses, legal

experts have determined that the term “equitable”

within the UNWC and customary international law

can be understood to mean “the equal right to use

the water for beneficial purposes, rather than

division into equal portions.” The UNWC does not

define what “equitable and reasonable” means in

specific legal terms; it instead provides guidance

on how equitable and reasonable utilisation is to

be determined in a practical sense by listing the

major indicative factors to be considered when

evaluating whether or not a new or increased use

is consistent with the principle in Articles 5 and 6.

Under the Mahakali Treaty, the Parties are equally

entitled to utilise the Mahakali River without

prejudice to their respective existing consumptive

uses of the waters (Art. 3). In addition to the equal

entitlement clause, the Treaty also provides for a

joint approach to the development and utilisation of

the water resources through the establishment of

the Mahakali River Commission (Art. 9).

As per the Treaty, the water requirements of Nepal

are given priority consideration (Art. 5). However, it

is not clear whether this priority consideration is to

be given with respect to existing or future utilisation.

The Treaty entitles each Party to draw an equal

share of water from specified and mutually agreed-

upon points (Art. 5).

Compatibility and gaps

• The UNWC and Mahakali Treaty are compatible as far as the ‘equal rights’ of watercourse states to

consume water for beneficial use is concerned. The Mahakali Treaty respects the consumptive use of

both countries but does not mention whether it is the consumptive use at the time of ratification or

also includes future use, making it difficult to apply the criteria for determining equitable and

reasonable utilisation as defined by Article 6 of the UNWC.

4.3.4 SUBSTANTIVE PRINCIPLES: OBLIGATION NOT TO CAUSE SIGNIFICANT HARM

(AND RELATED DUTY TO PROTECT ECOSYSTEMS)

Article 7 of the UNWC deals in detail with the

general obligation not to cause significant harm. It

begins by stating that “Watercourse States shall, in

utilising an international watercourse in their

territories, take all appropriate measures to

prevent the causing of significant harm to other

watercourse States” (Article 7(1)). Directly related

to this general obligation, Article 7(2) goes on to

specify that “Where significant harm nevertheless

is caused to another watercourse State, the States

whose use causes such harm shall, in the

absence of agreement to such use, take all

appropriate measures, having due regard for the

provisions of Articles 5 and 6, in consultation with

the affected State, t

o eliminate or mitigate such

harm and, where appropriate, to discuss the

question of compensation.” It is this explicit

reference to “having due regard” that many legal

experts consider as giving ultimate legal primacy

to the principle of equitable and reasonable

utilisation over the obligation not to cause

significant harm. Indeed, this direct reference “in

effect recognizes that, where it can be shown that

significant harm occurs, but it can also be proven

that such harm is equitable and reasonable, a

State will be in compliance with international law”

and inter alia

customary international law as

codified within the UNWC.

The Treaty obligates the Parties to protect the

ecosystem of the Mahakali River. Firstly,

downstream flow shall be maintained to protect the

River ecosystem (Art.

1). Secondly, in order to

maintain the flow and level of the waters of the

Mahakali River, each Party has an obligation not to

obstruct or divert its waters, except by agreement

(Art.

7). Both countries are allowed to make

unilateral decisions on the Mahakali tributaries

within their territories (Art. 8) as long as they

maintain the natural flow of the main river.

The unilateral development of the river

is not

allowed on stretches where it forms a boundary

between two countries, and any future project on

the boundary stretch of the river is to be developed

based on agreement between the Parties (Art. 6)

Compatibility and gaps

• The no harm principle as defined by the UNWC is also encapsulated in the Mahakali Treaty.

However, the provisions linked to the establishment of Mahakali River Commission has not been

operationalised, leading to limited applicability of no harm principles at the basin level. There exists a

joint platform in the form of the PDA, but it has a limited mandate that focuses on the implementation

of the Pancheshwar Multi-purpose Project (Art. 9).

4.3.5 PROCEDURAL OBLIGATIONS: PRINCIPLE OF COOPERATION AND

INFORMATION EXCHANGE

The overarching duty to cooperate is encapsulated

in Article 8 of the UNWC where it obliges

watercourse states to “

cooperate on the basis of

sovereign equality, territorial integrity, mutual

benefit and good faith

in order to attain optimal

utilization and adequate protection of an

international watercourse” (Article 8(1)).

All planned measures under the Mahakali Treaty

are to be undertaken in the spirit of equal

partnership. For the Pancheshwar Multi-purpose

Project, the Treaty provides for a joint body, the

Pancheshwar Development Authority, for the

development of a detailed project report and the

mobilisation of finances (Art. 3). Any measures on

the stretch of river that forms the boundary between

the two countries have to be implemented through a

mutual agreement between the Parties (Art. 6). The

Treaty provides for the Mahakali Commission to

coordinate efforts between the governments for the

integrated development of the basin.

Compatibility and gaps

• Both the UNWC and the Mahakali Treaty provide for information exchange as one of the measures to

adhere to the overall obligation to cooperate. All the planned measures under the Mahakali Treaty are

to be executed through joint efforts right from the planning stage. However, cooperation is only limited

to the stretch of the river forming a boundary between India and Nepal. Both countries are free to

unilaterally develop other parts of the river and its tributaries within their respective territory.

4.3.6 PROCEDURAL OBLIGATIONS: PRINCIPLE OF PRIOR NOTIFICATION,

CONSULTATION AND NEGOTIATION (OVER PLANNED MEASURES)

Article 11 of the UNWC obliges states to: exchange

information, consult each other and, if necessary,

negotiate on the possible effects of planned

measures on the condition of an international

watercourse. Article 13(a) dictates that the state

providing notification must allow six months for the

notified state(s) to evaluate this information, carry

out their own studies, and ultimately reply. With

regard to consultations and negotiations, Article

17(1) dictates that where the notifying state has

communicated via reply that th

ey determine the

planned measure is inconsistent with Articles 5

and/or 7, both the notifying and notified states are

bound to “enter into consultations and, if necessary,

negotiations with a view to arriving at an equitable

resolution of the situation.” In this regard, all states

must engage in any consultations and negotiations

“in good faith [and] pay reasonable regard to the

rights and legitimate interests of the other State”

(Article 17(2)).

The Mahakali Treaty promotes joint planning and

implementation which inter alia requires notification,

consultation and negotiations over planned

measures. The parties are at liberty to form project-

specific joint entities for the planning and execution

of mutually beneficial projects (Art. 10). The Treaty

also provides mechanisms for prior consultation and

notification through the establishment of project-

specific joint bodies (Art.

3) and the Mahakali

Commission (Art. 9). Any

future project on the

stretch of the Mahakali River forming a boundary

between the two countries needs to be designed

and implemented by an agreement between the

parties under

the principles established by the

Treaty (Art. 6).

Compatibility and gaps

• The Treaty provides for operationalisation of the principles of notification and consultation through the

formation of a Joint Commission. However, the scope of the Treaty is limited to the stretch of the river

forming the boundary between India and Nepal and does not apply to the Mahakali Basin as a whole.

The two countries are allowed to unilaterally develop the tributaries of the Mahakali River within their

territory.

4.3.7 PROCEDURAL OBLIGATIONS: DISPUTE RESOLUTION PROCEDURES

Article 33 of the UNWC, supported by the only

Annex to the Convention’s text, provides the

UNWC legal framework for the settlement of

disputes. Article 33 (1) stipulates that in the

absence of an applicable agreement, in the event

of a dispute between two or more parties

concerning the interpretation or application of the

UNWC, states are obligated to “seek a settlement

of the dispute by peaceful means.”

State parties to the UNWC are bound by the

subsequent provisions under Article 33. Article 33

(2) dictates that if such parties to a dispute fail to

reach an agreement via negotiation requested by

one (or more of them in the case of multiple

parties) they can then “jointly seek the good

office, or request mediation or conciliation by a

third party, or make use, as appropriate, of any

joint water course institutions that may have been

established by the Agreement to submit the

dispute to arbitration or to the International Court

of Justice.”

Article 33 (3) provides detailed timelines and

procedures whereby, if after six months from the

time of a state party requesting negotiations the

parties to the dispute have failed to settle through

negotiation or other means, the dispute must “be

submitted, at the request of any of the parties to

the dispute, to impartial fact-finding in accordance

with paragraphs 4 to 9, unless the parties so

otherwise agree.” The legal role and relevance of

impartial fact-finding in the overall scheme of the

UNWC dispute resolution procedures cannot be

underestimated because it is largely unique to

this framework Agreement within the field of

international water law and trans-boundary basin

or river agreements. Furthermore, given the

range of dispute settlement mechanisms provided

via Article 33 (2), it remains the only truly non-

negotiable, binding procedure within the UNWC.

The Mahakali Commission as an advisory body is

given the responsibility to examine the differences

between the Parties (Art. 9(3e)) and if it fails to

resolve

disputes then it is taken to a tribunal

composed of three arbitrators (Art. 11), one

nominated from each country and a neutral

arbitrator nominated jointly but from different

country

. In the event of disagreement on the

appointment of the neutral arbitrator, either party

can, within 90 days, request the Secretary General

of the Permanent Court of Arbitration at the Hague

to appoint a neutral arbitrator. The inclusion of the

Permanent Court of Arbitration in this Article

strengthens the dispute resolution mechanism of

this Treaty.

Compatibility and gaps

• The dispute settlement mechanism under the Treaty is more evolved and robust than all the previous

Agreements on water resources between India and Nepal. However, the Treaty does not specify a

timeline for resolving disputes by the Tribunal. Moreover, the proposed Mahakali River Commission,

responsible for examining any disputes before sending them to the Tribunal

, has yet to be

established.

4.4 THE UNWC AND THE GANGES WATER SHARING TREATY, 1996

4.4.1 SCOPE AND DEFINITIONS

UNWC

The Ganges Water Sharing Treaty, 1996

The UNWC applies to uses of international

watercourses other than navigation and to measures

for the purpo

ses of “protection, preservation and

management related to the uses of those

watercourses and their waters” (Article 1(1)).

Watercourse uses which affect navigation or which

are affected thereby, also fall within the scope of the

Convention.

Under the UNWC “watercourse” is defined as a river

system including both surface water, which

incorporates a river’s tributaries, as well as

groundwater, flowing into a common terminus (Article

2(a)) ; “international watercourse” is one which falls

within or touches the boundary of two or more states

(Article 2(b)) ; “watercourse state” is a “State Party to

the present Convention in whose territory part of an

international watercourse is situated or a Party that is

a regional economic integration organis

ation, in the

territory of one or more of whose member states part

of an international watercourse is situated” (Article

2(c)) ;

and a “regional economic integration

organisation” is any regional inter- governmental

institution which operates for the purposes of

economic integration and development (Article 2(d)).

The Ganges Water Treaty is primarily concerned

with the sharing of Ganges waters using average

historical flows at the Farraka Barrage as the

reference point. The preamble of the Treaty

indicates the desire of the two countries to work

together on the optimum utilisation of the

Ganges River for non-navigational purposes

such as flood management, irrigation, generation

of hydropower and integra

ted development of

the river basin

for the mutual benefit of the

people of the two countries (preamble).

Compatibility and gaps

• The Ganges Treaty does not define the watercourse of the Ganges River as a system of surface and

groundwater. The scope of the treaty is limited to the sharing of surface water, even though the

preamble mentions the need for developing strategies to augment the flow of the Ganges river as a

log-term solution for water scarcity in the mutual interests of the peoples of both Bangladesh and

India.

4.4.2 SUBSTANTIVE PRINCIPLES: SUSTAINABLE DEVELOPMENT

The UNWC refers explicitly to the principle of

sustainable development in its text. Article 24, which

concerns the management of international

watercourses, stipulates that “Waterc

ourse 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”

(Articles 24(1) and 24(2)) then states that “for the

purposes of this article, “management” refers, in

particular, to: (a) Planning the sustainable development

of an international watercourse and providing for the

implementation of any plans adopted; and (b)

Otherwise promoting the rational and optimal

utilization, protection and control of the watercourse.”

In this regard, the UNWC provides a legal reference

point for the practical application and utilisation of the

principle of sustainable development as it pertains to

the planning and adoption of plans in

the overall

management of an international watercourse.

There is no mention of sustainable development

in the text of the Ganges Water Treaty. However,

the preamble indicates the desire of the two

countries to work toward optimum utilisation of

water resources in flood management, irrigation,

river basin development, and hydropower

generation for the mutual benefit of the people of

both countries.

The Ganges Treaty is primarily a water-sharing

agreement for the volumetric allocation of water

in the dry season. The Treaty establishes India’s

right to withdraw up to 40,000 cusecs of water at

the Farakka Barrage between 1 January and 31

May every year. If availability at Farakka falls

below 70,000 cusecs, the water will be divided

equally between the two count

ries, while

guaranteeing a minimum of 35,000 cusecs to

each over alternating 10-day periods between 11

March and 10 May.

Compatibility and gaps

• The Ganges Treaty is primarily a water-sharing agreement. The preamble indicates the desires of the

two countries to develop the basin for mutual benefit, though this is not backed by any provision or

guidance on how to operationalise the joint and sustainable development of the basin.

4.4.3 SUBSTANTIVE PRINCIPLES: EQUITABLE AND REASONABLE UTILISATION

In the context of international watercourses, legal

experts have determined that the term “equitable”

within the UNWC and customary international law can

be understood to mean “the equal right to use the

water for beneficial purposes, rather than division into

equal portions.

” The UNWC does not define what

“equitable and reasonable” means in specific legal

terms; it instead provides guidance on how equitable

and reasonable utilis

ation is to be determined in a

practical sense by listing the major indicative factors to

be considered when evaluating whether or not a new

or increased use is consistent with the principle in

Articles 5 and 6.

The preamble of the Ganges Treaty mentions

the desire of the

countries for ‘fair and just’

decision-making on entitlement and rights to the

Ganges River. The countries also seek to ensure

optimum utilisation of water resources for mutual

benefit.

The sharing arrangements and any

revisions, if required by the Parties, are required

to be guided by the principles of equity, fairness

and no harm to either party (Art. X). Equity is

explicitly the guiding principle for writing treaties

agreements with regard to other common

rivers (Art. IX).

Compatibility and gaps

• The Ganges Treaty does make explicit mention that the parties shall be guided by the principles of

equity and fairness but falls short of defining the means and mechanism to do so at the basin level to

support the augmentation of flow. The application of these principles is limited to the sharing the

decision linked to sharing of quantum of waters.

4.4.4 SUBSTANTIVE PRINCIPLES: OBLIGATION NOT TO CAUSE SIGNIFICANT HARM

(AND RELATED DUTY TO PROTECT ECOSYSTEMS)

Article 7 of the UNWC deals in detail with the

general obligation not to cause significant harm. It

begins by stating that “Watercourse States shall, in

utilizing an international watercourse in their

territories, take all appropriate measures to prevent

the causing of significant harm to other watercourse

States” (Article 7(1)). Directly related to this general

obligation, Article 7(2) goes on to specify that

“Where significant harm nevertheless is caused to

another watercourse State, the States whose use

causes such harm shall, in the absence of

agreement to such use, take all appropriate

measures, having due regard for the provisions of

Articles 5 and 6, in consultation with the affected

State, to eliminate or mitigate such harm and,

where appropriate, to discuss the question of

compensation.” It is this explicit reference to “having

due regard” that many lega

l experts consider as

giving ultimate legal primacy to the principle of

equitable and reasonable utilis

ation over the

obligation not to cause significant harm. Indeed, this

direct reference “in effect recognizes that, where it

can be shown that significant

harm occurs, but it

can also be proven that such harm is equitable and

reasonable, a State will be in compliance with

international law” and inter alia customary

international law as codified within the UNWC.

The Ganges Treaty encapsulates the no harm

principle. In case of an emergency, such as less

water reaching Bangladesh than is required by the

Treaty, the immediate consultations on restoring

water flow should be based on the fair play and no

harm principles (Art. II). No harm principles are also

mentioned as the guiding principle for Treaty review

and renewal.

The Treaty, however,

does not have any

mechanism to ensure the protection of

transboundary ecosystems or joint development of

shared rivers within the basin. It allows for unilateral

development of rivers in each one’s territory for the

optimum utilisation of the water resources of their

region in the fields of flood management, irrigation,

river basin development and generation of

hydropower for the mutual benefit of the two

countries

The only reference to the

duty to protect

ecosystems can be linked to the desire of the two

countries to achieve river basin development for the

mutual benefit of the people of two countries

(preamble), which could be interpreted as a duty to

safeguard natural resources.

Compatibility and gaps

• The Ganges Treaty mentions the no harm principle. The major difference is that there is no procedural

guidance under the Ganges Treaty on how to eliminate or mitigate any potential harm. There is also no

mention of the duty of the Parties to protect the ecosystem. Thus, there is immense scope for

improvement on the Ganges Treaty, particularly by expanding it to foster basin-level management and

by including procedural guidance on the principle of no harm and related duty to protect the

ecosystem.

4.4.5 PROCEDURAL OBLIGATIONS: PRINCIPLE OF COOPERATION AND

INFORMATION EXCHANGE

The overarching duty to cooperate is encapsulated

in Article 8 of the UNWC where it obliges

watercourse states to “

cooperate on the basis of

sovereign eq

uality, territorial integrity, mutual

benefit and good faith

in order to attain optimal

utilization and adequate protection of an

international watercourse” (Article 8(1)).

The principle of cooperation is enshrined in the

pursuit of finding just and fair solutions to problems

without affecting the existing rights and entitlements

of the Parties (preamble). The direct reference to

the principle of cooperation is contained in Article

VIII of the Treaty wherein the two governments

recognise the need for cooperation in augmenting

the dry season flow of the Ganges River.

The provisions for setting up a Joint Committee as

an institutional mechanism for implementing the

Treaty and for annual reporting underline the

principle of cooperation and information exchange

(Art. IV). Information exchange is ensured through

the mandate of the Joint Committee to share data

on river flow from selected locations and to submit

annual reports to the members’ respective

governments. Following this information exchange,

the two governments have a duty to decide on

further action as needed (Art. VI). Thus, information

exchange is also associated with a duty to take

action based on information exchange.

Compatibility and gaps

• The UNWC and the Ganges Treaty both contain the principle

of cooperation and information

exchange. There are clear institutional and procedural mechanisms for the exchange of information

and there is an associated duty to take action based on the information. However, cooperation is

limited by the scope of the Treaty, which is to ensure volumetric sharing of water.

4.4.6 PROCEDURAL OBLIGATIONS: PRINCIPLE OF PRIOR NOTIFICATION,

CONSULTATION AND NEGOTIATION (OVER PLANNED MEASURES)

Article 11 of the UNWC obliges states to: exchange

information, consult each oth

er and, if necessary,

negotiate on the possible effects of planned

measures on the condition of an international

watercourse. Article 13(a) dictates that the state

providing notification must allow six months for the

notified state(s) to evaluate this info

rmation, carry

out their own studies, and ultimately reply. With

regard to consultations and negotiations, Article

17(1) dictates that where the notifying state has

communicated via reply that they determine the

planned measure is inconsistent with Article

s 5

and/or 7, both the notifying and notified states are

bound to “enter into consultations and, if necessary,

negotiations with a view to arriving at an equitable

resolution of the situation.” In this regard, all states

must engage in any consultations and negotiations

“in good faith [and] pay reasonable regard to the

rights and legitimate interests of the other State”

(Article 17(2)).

The Treaty was signed to formalise the sharing of

water quantities, with the flow at Farakka Barrage

as the reference point. The Treaty provides for the

establishment of a Joint Committee (JC) to

implement the Treaty, collect data and exchange

information. However, the T

reaty makes no

reference to prior notification and consultation for

any planned measures, except for the desire of the

two countries to develop the river

based on the

principle of “good neighbourliness” and the

wellbeing of their people (preamble).

Compatibility and gaps

• The obligation of prior notification and negotiations are limited by the scope of the Treaty. The

preamble mentions the need to cooperate on finding long-term solutions to Ganges water flow and on

the development of the river for the benefit of people in each country. However, it does not include any

provisions to operationalise these needs. The role of the JC established by the treaty is limited to

information sharing and reporting on the flows in the river at the two selected points.

4.4.7 PROCEDURAL OBLIGATIONS: DISPUTE RESOLUTION PROCEDURES

Article 33 of the UNWC, supported by the only

Annex to the Convention’s text, provides the

UNWC legal framework for the settlement of

disputes. Article 33(1) stipulates that in the

absence of an applicable agreement, in the event

of a dispute between two or more parties

concerning the interpretation or application of the

UNWC, states are obligated to “seek a settlement

of the dispute by peaceful means.”

State parties to the UNWC are bound by the

subsequent provisions under Article 33. Article

33(2) dictates that if such parties to a dispute fail

to reach an agreement via negotiation requested

by one (or more of them in the case of multiple

parties) they can then “jointly seek the good

office, or request mediation or conciliation by a

third party, or make use, as appropriate, of any

joint water course institutions that may have been

established by the Agreement to submit the

dispute to arbitration or to the International Court

of Justice.”

Article 33(3) provides detailed timelines and

procedures whereby, if after six months from the

time of a state party requesting negotiations the

parties to the dispute have failed to settle through

negotiation or other means, the dispute must “be

submitted, at the request of any of the parties to

the dispute, to impartial fact-finding in accordance

with paragraphs 4 to 9, unless the parties so

otherwise agree.” The legal role and relevance of

impartial fact-finding in the overall scheme of the

UNWC dispute resolution procedures cannot be

underestimated because it is largely unique to

this framework Agreement within the field of

international water law and transboundary basin

or river agreements. Furthermore, given the

range of dispute settlement mechanisms provided

by Article 33(2), it remains the only truly non-

negotiable, binding procedure within the UNWC.

The Joint Committee has the mandate to examine

any dispute under the Treaty. If the Committee fails

to settle the dispute, it shall be referred to the Indo-

Bangladesh Joint River Commission. If the dispute

is still unresolved, it is referred to the two

governments who meet, at the appropriate level, to

resolve the dispute by mutual discussion (Art. VII).

Thus, the dispute settlement mechanism under the

Ganges Treaty is ambiguous. If the Commission

fails, it becomes unclear at what level and in what

time frame the dispute should be resolved, which is

especially pertinent to

matters that require

immediate resolution, such as drought and floods.

Compatibility and gaps

• The Ganges Treaty does not have well-defined dispute settlement mechanisms. To strengthen them,

the Parties could use the UNWC provisions on dispute resolution as an example.

CONCLUSION AND RECOMMENDATIONS

None of the bilateral agreements and treaties on the Ganges River or its tributaries have a basin

focus or reflect the same understanding or scope as defined under the UNWC. As discussed in

Chapter 1, the definition of ‘watercourses’ under the UNWC includes all physically connected ground

and surface water flowing to a common terminus. The Mahakali Agreement can be considered the

most advanced of the treaties this paper has analysed in terms of the application of international

water law principles and its recognition of joint development of Mahakali River. However, like all other

bilateral agreements in the Ganges Basin, the scope of the Mahakali treaty is limited to a stretch of

river forming a boundary between India and Nepal and the two countries are free to unilaterally

develop the tributaries of the Mahakali that fall within their territory. Therefore, despite the presence of

a basin-level cooperation vision, potential basin-wide application is limited by the treaty’s scope.

The existing bilateral agreements and treaties in the Ganges Basin could be categorised into two

groups. The Kosi and Gandak Agreements were negotiated in 1950s and ’60s, when international

water law was at a nascent stage of development, and these treaties therefore do not promote equity

and reciprocity in water cooperation in a way that ensures joint protection and management of the

river system itself. These treaties are project-centric, so there is no scope for the full-scale application

of modern international water law. However, these two agreements acknowledge principles of

national sovereignty and provide the mechanism for sharing benefits from the project. The Mahakali

and Ganges Treaties, both signed in 1996, are contemporary to the UNWC. These two agreements

reflect a higher level of IWL principle mainstreaming, which indicates a clear desire for cooperation

and collaboration in shared water governance. Both agreements mention the principles of equity, fair

play and no harm, and also recognise the need to develop basin-level approaches as long-term

solutions to flooding and the effects of drought.

The higher level of compatibility between the UNWC and the Ganges and Mahakali Treaties indicates

an attempt by the countries to mainstream internationally agreed-upon principles related to shared

water governance. However, the lack of elaboration on the procedural aspects has led to challenges

in implementation. This analysis suggests that there is scope for the improvement of existing regional

agreements and treaties in the Ganges Basin through expansion of scope and strengthening of

procedures.

Based on the comparative analysis of these treaties in relation to the UNWC, it can be concluded that

the UNWC framework provides a tool to reinforce and strengthen existing agreements and also to

promote the harmonisation of water laws regionally. This could create an environment of regional

peace and trust and help countries better adapt to common local and global challenges such as

climate change and floods.

Some specific points are detailed below:

Protection of the river: Commonly missing in all bilateral agreements and treaties in the Ganges

Basin is a mechanism to protect the international watercourses from environmental pollution. None of

the bilateral treaties analysed have binding provisions regarding the prior notification and consultation

on shared river basin issues related to environmental degradation. The UNWC offers ample guidance

on aspects of ecological conservation and communication on planned measures on the shared river,

so the adoption of uniform procedural measures based on UNWC principles would enhance the level

and standard of river protection by holding riparian countries accountable for their obligation to

cooperate and communicate on ecological protection.

The UNWC will reinforce and not replace existing bilateral agreements: The UNWC

is a

framework convention that allows states to continue with or have new water cooperation agreements

that are tailored to their needs. Therefore, even if the UNWC is ratified by the GBM countries, it will

not replace existing water agreements or treaties. However, it could help strengthen existing

agreements by providing guidance on the development of basin-level joint planning and binding

mechanisms for the timely resolution of disputes. For example, the dispute resolution mechanism

under the Ganges Treaty (India and Bangladesh) is ambiguous and non-binding; if a dispute is not

resolved by the Joint Committee it is referred to Bangladesh-India Joint Commission, but no

timeframe for complete resolution of the dispute is provided by the Treaty. Ratification of the UNWC,

which includes strong dispute resolution mechanisms and guidance on timelines and procedures,

would be the first step in strengthening some of the existing mechanisms within the GBM’s bilateral

arrangements.

The UNWC will promote regional harmonisation of water agreements and national policies:

Collectively, the water cooperation instruments in the Ganges Basin present a scattered and

sometimes contradictory legal regime. Each treaty or agreement seeks to fulfil its own limited

purpose, without regard for other agreements. For example, although the Ganges Treaty’s focus is on

sharing volumes of water, it also indicates a desire and acknowledges the need to augment water

flow as a long-term solution to water sharing issues – yet does not include Nepal, where the Ganges

headwaters are located. The Kosi Agreement, which does include Nepal, has not achieved flood

control or irrigation benefits to the extent that it promised. Different set of rules and regimes apply to

different parts of the same river, resulting in a fragmented approach to its management and

sustainable utilisation. Therefore, the UNWC as a framework and a regional umbrella agreement has

the potential to foster regional cooperation for the development of integrated basin-level approaches

in the Ganges Basin. This standardisation of transboundary river system governance is required to

deal with the destructive impacts of climate change on river flows and its annual water distribution.

Art. 3 UN Watercourses Convention

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