Flawed Water

by Enrico Aditjondro April 29, 2010
Gopal Siwakoti “Chintan” writes about Nepal's water problem as a result of an ADB project

By Gopal Siwakoti “Chintan”

The Kathmandu Post, 20 November 2009
The monsoon waters of Nepal and India no doubt bring floods, but the putative bi-lateral co-operation that its mitigation has given rise to is full of flaws — not to mention huge Tarai inundations through unilateral Indian actions. The first 1920 Sarada Barrage agreement was considered a gift of the colonial British Raj in India to Nepal with some irrigation facility thrown in for which we paid the price of giving away our water rights, renouncing the principle of mutual benefit and the land on which the structure was built.

Likewise, the Koshi and Gandak agreements have been widely criticised for being unequal in terms of water and its benefit-sharing for Nepal. Whatever the political analysis of these two major Nepal-India water projects, the sufferings caused to the local populations from floods and barrage outbreaks during the monsoon is unimaginable.

Bi-lateral water problems

Despite this failed history of the so-called water cooperation, another thoughtless Nepal-India joint water meeting is taking place this week in Pokhara. Although no details of the agenda have been made public, it is clear that the future of Pancheshwor and many other dams will be placed on the table. There will be no discussion about the review of unequal, unclear and problematic provisions contained in the Koshi, Gandak or Mahakali treaties. There will be no negotiation about the massive lower riparian benefits that Nepal deserves to claim if the controversial West Seti hydro-project is built. Under the terms of the project, India gets 90-156 cusecs of free water after the West Seti River is diverted through the West Seti dam which will irrigate over 600,000 hectares of north Indian land. There will also be no talks about the displacement and suffering of the huge populations in Madhes (or Tarai) due to the dozens of unilateral embankments and barrages constructed by India. Most tragically, there will be no agenda for discussion and negotiations for future water and energy cooperation based on international law and practices.

The reason is very simple. India gains more by applying different standards for different riparian countries of Nepal, Bhutan and Bangladesh. Nepali leaders always consent to Indian proposals in order to reach and remain in power. Bhutan has no problems going ahead with Indian proposals as long as its political problems are taken care of by New Delhi. Bangladesh is also vulnerable as it cannot launch any regional water-sharing campaign successfully without the full cooperation of other co-riparian countries, namely Nepal, Bhutan and Pakistan.

Mahakali fiasco

As a result, one-sided projects that benefit only India are the norm. Consider the 1996 Mahakali Treaty and the proposed Pancheshwor dam in the context of this regular official meeting taking place. The Mahakali Treaty faces a huge problem of legality, legitimacy and practicability. Nepal cannot consider the treaty valid unless the Nepal government can convince the Indian side to accept the four sankalpa prastav (determination of the status of the Mahakali River, equal sharing of Mahakali waters, energy export pricing principle and formation of Mahakali River Commission) that were passed by the 1996 parliament. Although, India is not legally bound by the provisions of the sankalpa prastav, the case of Nepal is and will be different, else it will have to be considered as a fraud on the Nepali public.

But we are yet to know whether the Nepal government has ever raised the issue of the sankalpa prastav. If Nepal asks for it and if India rejects it, then the only option left for Nepal is to apply the provision that the “Treaty shall be reviewed by both the parties at ten (10) years’ interval or earlier as required by either party and make amendments thereto, if necessary” according to Article 12 (3). Unfortunately, nothing has been done though the implementation of the treaty has been held up for 13 years. If all had gone well, the Pancheshwor dam should have been in place some three years ago, and the miraculous official figure of 46 billion plus annual profit should already have been flowing in by now!

This is not the only hurdle in the Mahakali Treaty. There are problems regarding the equal sharing of the Mahakali waters despite the fact that there are also claims of the whole river being under Nepal’s full ownership. That, in fact, should have been the case if Nepal’s western border is to be considered extending all the way to the other side of the Mahakali River and if the Sugauli Treaty of 1816 is to be declared invalid. Further, if Nepal is to prove that the source of the Mahakali River is on Nepali territory then, yes, the Mahakali River is to belong to Nepal. But the question is not even this big. It is more about whether Nepal owns its equal share of 50 percent of the Mahakali waters at least. So far, after the current Indian claim, Nepal’s share of water only accounts for some 4 percent after deducting the amount of water already claimed by India from the Sarada Barrage. If this is to be the case, then all the credit for such loss to Nepal goes to the 1920 British-India Sarada agreement, and the “landmark” Mahakali Treaty only to legitimise it!

No doubt, the treaty has a serious flaw in its claim that Nepal and India “have equal entitlement in the utilisation of the waters of the Mahakali River without prejudice to their respective existing consumptive uses of the waters of the Mahakali River” (Article 3) — the main basis for India to further its claim. But interestingly, it also does not refer explicitly to the water already used in and through the Sarada Barrage. Legally speaking, the Indian claim of the old Sarada Barrage water under the principle of prior use right also does not stand strong as the 1920 agreement has already been replaced by the Mahakali Treaty.

This, in fact, has been the main reason why the Nepali and India teams have failed to agree on the content of the Detailed Project Report (DPR) to date. If so, then what the Pokhara meeting should do first is negotiate the sankalpa prastav provisions, clarify this “existing consumptive uses” controversy and review the treaty with the many other concerns Nepal has. They include the guarantee of 50 percent ownership over all the Mahakali waters at the minimum, the pricing of Nepal’s share of unused water bought by India as well as an agreement on the power export rate from Pancheshwor, if and when it is built.

Future of Pancheshwor and more

Going ahead with the Pancheshwor DPR and the construction of the dam without correcting the Mahakali injustice is simply unacceptable to Nepal. Whether the Pancheshwor dam will be economically, financially and environmentally feasible for Nepal and India, given the destructions that such large dams bring, is a different question to be resolved separately. Nepal and India must discuss a long-term water sharing strategy and plans in line with the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses.

But if this meeting fails to discuss these fundamental issues and problems relating to Nepal-India co-operation in the field of water and energy resource development, then the future of these and other agreements and projects will be even more difficult once Nepal enters the era of democratic federalism. This is the time for both countries to give up “business-as-usual” and come up with a framework and principle-based water and energy cooperation strategy for regional prosperity based on the “win-win” principle. For this, the politics of “flawed water” between the two countries must be corrected sooner rather than later.