Dr. Trilochan Upreti

India and China have been improving their bilateral relations in recent times. Trade and other benefits have outweighed their border disputes - and even the recognition of Sikkim came across this line - enabling both nations to increase bilateral trade from US$ 8 billion to US$ 30 billion in no time.

India and China fought a war, and they have major border disputes in Jammu and Kashmir as well as in Arunachal Pradesh, among others. A joint committee of experts to deal with the border dispute has held several meetings, but no progress has been achieved as yet. This has become a major problem for India.

Brahmaputra

Another problem facing India is the proposed diversion of rivers in China's Quinchai plateau. China is also reportedly considering diverting the Brahmaputra River to the northwest of the country, although the report has been denied by China. Developing infrastructure projects like irrigation and diversion of rivers depend on the necessity, economic and technical strength of a country. Waters from rivers have been diverted in the central Asian states by the then Soviet Union, in the United States and in India.

Inter-basin diversion of international rivers was provided for by the 1945 agreement between Austria and Yugoslavia in dealing with the Drava River; the 1957 treaty between Switzerland and Italy concerning the Spol River; and the Boundary Water Treaty of 1909 between the USA and Canada concerning the St. Mary and Milk rivers.

Likewise, an Israeli undertaking takes water from Lake Tibris through a canal pipeline to the Negev desert. Chile has diverted some of the waters of the Luca River, which flows from Chile into Bolivia, into a national drainage basin. A dispute between the US and Canada over the Canadian proposal to divert the Columbia River water through the Fraser Diversion Scheme was not implemented because the United States agreed to pay the downstream benefits accrued by the Canadian project in the Columbia basin.

The Lake Lanoux case provides a good illustration of a diversion in which the Arbitral Tribunal rejected Spain's argument that a diversion followed by restitution was not contrary to the provision in the international law. On the diversion of the waters of the Gavcovo-Nagymaros dam, the International Court of Justice, in its 1997 verdict, held the view that the operation of Variant C by Slovakia, to mitigate the harm caused by the non-implementation of the treaty by Hungary, where 80 per cent of the water was diverted, was illegal. Thus, for its illegal work, Slovakia was required to pay compensation to Hungary for having adversely affected Hungary's reasonable and equitable entitlement to the beneficial use of those waters.

The Nile diversion by Egypt and its strong objection to Ethiopia over its plan to divert a little of the water from the Blue Nile for its hydropower and irrigation purpose was considered tantamount to declaring a war against Ethiopia. It is an extreme example of a weak and vulnerable country being prohibited from utilising its legitimate share of water. However, the Nile Basin Initiative has been striving to sort out differences amongst the nine riparian states for mutual benefit. A good example of fair and equitable diversion is the Lesotho-Highland Treaty of 1986 between Lesotho and South Africa, where the latter has paid a fully legitimate amount of money for diverting the waters for hydropower and drinking water purpose to the former.

The diversion of the Ganges River waters in the Farakka by India is another wrong precedent in international politics and law. There are numerous instances of jurisprudence in action concerning the diversion of river waters inside India in its inter-state river waters disputes. Similar jurisprudence exists in the United States in its inter-state water disputes.

These are some examples of diversion of rivers around the globe. Some were agreed between the riparian nations; others were decided by the verdict of arbitral tribunals, while some were constructed in a hegemonic manner, affecting the lower riparian nations.

The rules and guidelines of multilateral lending agencies as well as bilateral ones explicitly prohibit providing loans or assistance to water projects which are against the provisions of international law. That is to say, if such a project is harmful to the other riparian nation and has been objected to in negotiations and diplomatic dialogue, it should not be constructed.

Now the question arises, how come China could divert rivers in its territory if such action is detrimental to India and Bangladesh? China did not take part in the Mekong River Basin Commission Initiatives with four downstream countries. If the Brahmaputra were to be diverted, then the existence of Bangladesh would be jeopardised, and it would have detrimental effects on India as well.

The question of fresh water is a question of life and death for all countries. India has been planning to divert the waters of the Brahmaputra and 37 other rivers to supply water to the deficit areas of central and south India. This is referred to as the River Linking Project, and Bangladesh is dead against the project. If diversions are to be carried out by an upstream country using its military and economic strength - as in the case of the Farakka by India - then there will be a permanent squabble in this region.

Every nation, whether strong or weak, rich or poor, should adhere to the provisions enshrined in international law and practice. In this context, India must rectify its wrong action of the past by nullifying the unequal treaties and replacing them by new ones. Negotiations must also be held with China so that it does not construct any projects that are detrimental to the downstream countries and violate international laws.

Indian Prime Minister Man Mohan Singh, during the sidelines of the G-8 meeting, raised the issue with his Chinese counterpart, President Hu Jintao, and asked for scheduling the first meeting of experts to deal with the issue of diversion. However, as reported, the Chinese response was not positive. This is a matter of grave concern to the downstream neighbours, and their legitimate concerns should be addressed properly through diplomatic negotiations.

Wrong precedent

The crux of the matter is that the concerned nations are required to abide by the provision of the above laws and practice. One cannot violate the laws for one's benefits to the detriment of a weak neighbour. If that occurs, the same precedent would be repeated by a strong and powerful neighbour against the country which has acted against the provisions of this customary international law. Such things will keep on repeating time and again in this region.

Neither is the diversion of the Ganges basin by India consistent with the provision of international law nor the proposed Chinese diversion. Therefore, the law should prevail and hegemonic and illegitimate acts must be prevented from occurring.

Source: The Rising Nepal, 2007-11-28,

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