An Unsafe Negligence to the International Safeguards for Trans-boundary Rivers

We are fairly aware of the 'internal' crises the most of the rivers are facing and their possible solutions. But we ought to think twice when questions come for the trans-boundary or common rivers between India and Bangladesh. Is there really a simple and single solution to the complex trans-boundary water sharing problem inherited from the partition of India?

We know the rivers of any country or region are crucial for its environment, economy, society and culture. Moreover, if that river flows through more than one country, then it becomes diplomatically and geopolitically important as well. The issue becomes more important when it involves a country like Bangladesh where all rivers are ultimately dependent on trans-boundary water. Bangladesh has more than a hundred of big and small trans-boundary rivers, 54 of them are officially recognized by both of the countries, India and Bangladesh. Bangladesh has proposed 16 more rivers to be included in the list a few years back; but India is yet to respond.

For a river, almost all the other crises start from lack of flow. Like a river with strong flow never faces encroachments. Encroachment paves the way for illegal residential and industrial activities which bring hazards like pollution and sand extraction. Sand extraction is one of the main causes of devastating river erosion. This 'vicious cycle' triggered by the lack of flow has been gripping the rivers in Bangladesh for decades.

The lack of flow in India-Bangladesh trans-boundary rivers, mostly in the lower riparian parts, is caused by the dams, barrages, irrigation projects, diversion of water, mining, deforestation across the upper riparian regions. And Bangladesh as a downstream country has no legal tool to control these degradation. 

There is the 'India-Bangladesh Joint River Commission' to look after cross-border river issues, established months after the Independence of Bangladesh. But the Joint River Commission itself has become almost a rubber stamp because of ineptitude and inanity.

For the last fifty years, the Ganges Water Sharing Treaty signed in 1996 is the only legal safeguard for a trans-boundary river flowing between Bangladesh and India. The 30-year treaty is to expire in 2026. The much-talked-about Teesta Water Sharing Treaty, albeit finalized in 2011, still remains pending. Bangladesh raised the issues of Ganges water sharing agreement renewal and signing of the Teesta water sharing agreement in every summit held in the past few years between the two countries. But, regrettably, India continues to avoid the issue by showing various lame excuses. Understandably, Bangladesh is also lingering the implementation of the Feni River water sharing agreement that has been much coveted by India.

The question is should this be allowed to continue? Any standoff over cross-border waters harms the lower riparian country most. The standoff between Bangladesh and India over trans-boundary rivers is no exception. In addition to the increasing withdrawal of upstream Ganges water at various points, the Teesta water is being diverted to farther west through the Mahananda River and clandestine activities to implement the catastrophic Inter-Linking of Rivers Project, IRLP, are underway. Meanwhile, China has started implementing one of the biggest hydroelectric projects on Bangladesh's largest trans-boundary river Brahmaputra. India has embarked on multiple reservoir and hydroelectric projects on the same too to 'balance' the dam. 

If all these projects are allowed to be implemented, the Brahmaputra, which singly brings more than 50 percent of trans-boundary flow, will inevitably face a shortage of flow. We have already seen it in the Ganges and the Teesta. With the passage of time, the situation will be worse.

When bilateral talks on rivers lose steam, international legal frameworks become a safeguard for downstream countries. One such charter is the Convention on the Law of the Non-navigational Uses of International Water Courses. In short, it is known as 'United Nations Watercourses Convention, 1997'. This convention is specifically a world-recognized protection for trans-boundary rivers. It is almost an infallible legal framework in particular for any downstream country. It clearly emphasizes the rights of the river to protect human rights.

The convention, passed by the United Nations in 1997, remained 'ineffective' for long. According to the rules of the convention, at least 35 countries need to ratify the convention in respective parliaments to push the convention into force after 90 days. On May 19, 2014, Vietnam ratified the convention as the 35th country. As a result, the then Secretary-General of the United Nations declared the charter effective soon 90 days after that date. Accordingly, the charter came into force on August 17, 2014.

Naturally, Bangladesh was supposed to be the most enthusiastic about such a convention. Unfortunately, when the convention was passed, Bangladesh voted for it, but its ratification in the Jatiya Sangsad or National Parliament has remained pending for decades for unknown reasons. However, river and environmental organizations in Bangladesh, including the Riverine People, have been urging the government to ratify the charter from the very beginning.

This is not the end of the story as another convention, in recent years, has created opportunities for Bangladesh to establish its rights over trans-boundary rivers as a downstream country. Formally it is called 'Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes'. In short, it is called 'Water Convention'. In Bengali it means ‘Pani Sanad’ as the previous one was abbreviated into 'Paniprabaha Sanad'. This convention is even older. It was passed by the United Nations in 1992 and came into force in 1996.

The 'Water Convention' is more simple, effective and convenient than the 'Watercourses Convention' in many ways. For example, in the 1997 convention it was called 'international water flow' but in the 1992 convention it was directly codified as 'trans-boundary' watercourses. The second, for example, deals in more detail with the rights of all countries related to the trans-boundary rivers and the means of realizing the rights. 

Most importantly, there is no designated body to implement the 1997 convention while the 1992 convention has allowed an authority called UNECE to implement it. Although there is no provision for arranging 'Conference of Parties' in the 1997 convention, the 1992 convention clears the way for holding such conference once in every three years.

At the outset of the 1992 Convention, it was reserved only for European countries. But a proposal to be a global convention in 2003, got clearance at the UN meeting in 2015. Since March 2016, the convention had been signed and ratified by countries outside Europe. Chad and Senegal signed the charter in 2018 and Ghana did so in 2020. Fortunately, I also had the opportunity to be virtually involved in the 'Cop' organized last month. Witnessing Guinea-Bissau and Togo as new signatories of the convention this year, with a heavy heart I thought of my own country, Bangladesh.

Needless to say, the number of countries signing the Water Convention is growing rapidly due to its simplicity and convenience. While the 1997 Charter is stuck in 36 countries, the 1992 Convention has already been signed and ratified by 47 countries. I wish to write about this convention in more detail later. 

Point is, Bangladesh could not take a decision on the ratification of the 1997 Convention. Will it sit idle when the 1992 Convention has created a similar or even better opportunity? Should we neglect such a safeguard for trans-boundary rivers any longer? 

As the saying goes, time and tide wait for none. The flows of the trans-boundary rivers are much faster. For a riverine country like Bangladesh, neglecting any opportunity to safeguard the trans-boundary river rights is unsafe at any perspective.

Writer: Author and researcher; Secretary General, Riverine People. He tweets at skrokon. 

(Translated from the print edition of the Samakal by Mohammed Humayun Kabir, Sr Sub-Editor, Samakal Online)