The issue of utilisation of Tran boundary water resources (TWRs) 
between India and its neighbours China, Pakistan, Nepal, Bhutan and 
Bangladesh is a crucial source of regional conflict. Bangladesh and 
India share 54 TWRs. None of these water resources are being utilised 
according to the international rules and practices or multilateral 
integrated management planning. Riparian states are attempting to solve 
the water inadequacy problem through national unilateral actions and 
limited bilateral cooperation.
These approaches do not offer the minimum sustainable benefits to its
 riparian states. Rather, they are causing the depletion of available 
water, and socioeconomic and environmental problems. The upstream state,
 India constructed a series of structures, such as dams, barrages, 
reservoirs or regulators to block the free natural and regular flow of 
the waters of TWRs shared by the downstream state Bangladesh. Such water
 controls are built on the Mahananda at Banglabandh, on the Teesta at 
Gazaldoba, on the Manu at Nalkata, on the Khowai at Chakmaghal, on the 
Gumti at Maharani, on the Ganges at Farakka, and on the Dakatia at 
Kalsi.
So far the information available, none of these constructions project
 followed the fundamental principles of international law relating to 
the utilisation of an international water course, such as prior 
notification, consultation, environmental impact assessment (EIA), not 
to cause damage to other states, riparian right of access to water and 
equitable sharing of water. Hence, the dire consequences of these 
unilateral actions over the TWRs make Bangladesh worry about the 
socioeconomic impacts of other future projects.
Recently, the upper riparian state India has initiated an 
ambitious unilateral action plan to implement the Inter-River Linking 
Project (IRLP) to link 37 rivers excavating 9,000 kilometres of more 
than 600 long canals by building hundreds of reservoirs to give water 
access to 150 million hectares of land in India from the waters of the 
Brahmaputra to the Ganges, from the Ganges to the Mahananda and the 
Godabari in the next decade. The IRLP is a big concern for downstream 
Bangladesh and upstream Nepal.
Moreover, India has taken another initiative to build the Tipaimukh 
Hydroelectric Project Dam (The THPD envisages construction of a 162.8 
meter high rockfill dam, which will intercept a catchment area of 12,758
 sq km ) on the river Borak to produce 99,000 megawatts of electricity 
gradually within the next 50 years. The Borak is the main stream of the 
branch river of Meghna in Bangladesh. These projects also indicate 
immeasurable future threats for Bangladesh and some north parts in 
India. These ongoing and future unilateral actions increase regional 
tensions and mistrust. Bangladesh and downstream north-east States 
Monipur, Mizoram and Assam (in India) are concerned about the 
construction of THPD for hydropower generation over the Borak river, 
which will reduce downstream water flow and cause socio-economic and 
environmental impacts.
India has conducted an EIA and environmental management plan (EMP) 
within its territory for the proposed THPD. However, it does not assess 
its downstream impact in Bangladesh. It has been criticised widely and 
declared controversial due to lack of public participation and 
consultations, EIA in all aspects and areas and providing information to
 the stakeholders in north-eastern State Monipur and Bangladesh. Any 
environment activists argue that it was prepared based on misinformation
 and undermining the rich biodiversity, natural and cultural heritage, 
impacts on the living planets and their rehabilitation and proper 
management scheme. Hence, all downstream stakeholders demand a holistic 
impact assessment on the proposed THPD.
Recently, India has agreed to conduct a joint investigation about the
 EIA of THPD with Bangladesh. As part of the process Delhi has handed 
over the six parts THPD reports to Bangladesh with a proposal of joint 
venture investment in the last joint expert meeting held in August 2012.
 According to the signed memo of joint investigation on 28th August 
2012, the term of reference (TOR) for the assessment of THPD issues, 
each country is envisaged for assessment in their respective sides. 
However, Bangladesh is still awaiting for some specific project related 
data and information from India. This paper investigates (a) why EIA and
 EMP are important over the utilisation of TWR and (b) what fundamental 
principles are available in the customary international law about these 
issues.
 
The Citizens Concern for Dams and Development expresses serious concern about the joint investigation initiative and says that the Dam construction cannot be done only by the negotiation between Central India and Bangladesh alone. It demands the active participation of the indigenous peoples of Manipur (who will be obviously affected) in the decision making process as they and their land, rivers, forests and other resources will be directly affected. They also demand to revoke (i) the Environmental Clearance granted by the Ministry of Environment and Forest (MoEF) of the Government of India because the affected peoples opposed all the five public hearings and the construction of THPD and (ii) the MOU signed between the Government of Manipur, the National Hydroelectric Power Corporation, the Satluj Jal Vidyut Nigam Limited on 28 April 2012 without informing and taking consent of the people of Manipur.
The Citizens Concern for Dams and Development expresses serious concern about the joint investigation initiative and says that the Dam construction cannot be done only by the negotiation between Central India and Bangladesh alone. It demands the active participation of the indigenous peoples of Manipur (who will be obviously affected) in the decision making process as they and their land, rivers, forests and other resources will be directly affected. They also demand to revoke (i) the Environmental Clearance granted by the Ministry of Environment and Forest (MoEF) of the Government of India because the affected peoples opposed all the five public hearings and the construction of THPD and (ii) the MOU signed between the Government of Manipur, the National Hydroelectric Power Corporation, the Satluj Jal Vidyut Nigam Limited on 28 April 2012 without informing and taking consent of the people of Manipur.
A wide range international legal instruments and forums, including 
the recommendations of the World Commission on Dams (WCD), the UN 
Convention on the Elimination of All Forms of Racial Discrimination 
(UNCERD) and the provisions of the UN Declaration on the Rights of 
Indigenous Peoples recognizes indigenous people’s inherent rights over 
their land, and that resources should be fully adhered to in its 
entirely. In 2007 and 2011 the UNCERD have urged Indian Government to 
respect the right to free, prior and informed consent of indigenous 
peoples before THPD construction. The issue of stakeholder participation
 has widely been discussed in the second World Water Forum (WWF, the 
Hague 2000) which includes sharing of power, democratic participation of
 citizens in elaborating or implementing water policies and projects, 
and in managing water resources.
Paragraph 23 of the fifth WWF ministerial declaration 
mentions that, good water governance requires multi-stakeholder 
platforms and legal and institutional frameworks enabling the 
stakeholders’ participation at the local, national and regional level. 
Article 18 of the Berlin Rules on Water Resources 2004 also gives 
importance about stakeholder participation in utilising a shared water 
resource. Bangladesh needs to express their respect and standing about 
the stakeholder indigenous peoples’ right and the importance of holistic
 impact assessment, which will protect its citizen’s right more 
effectively.
International jurisprudence about issue of prior notification, 
consultation and negotiation, EIA and EMP on any projects over the TWR 
are quite clear. International legal instruments and international court
 and tribunal decisions and awards relating to the utilisation of shared
 natural resources have developed the principles of ‘states 
responsibility’, ‘prior notification, consultation and negotiation’, 
‘good neighbourliness’, ‘not to cause significant harm to other states’,
 ‘riparian states right of access to water’, ‘non-recognition of 
unilateral action’ and ‘equitable and reasonable utilisation’. These 
principles of international law require prior EIA on any form of a 
unilateral project plan over the TWR at both the upstream and downstream
 point to assess the Tran boundary environmental impact.
The UN Conference on the Human Environment (Stockholm 
Declaration 1972) and some other international instruments have imposed 
responsibility on states to ensure that states’ activities within their 
jurisdictions or control do not cause damage to the natural systems and 
the environment of other states and regions or in areas beyond the 
limits of national jurisdiction. The principle not to cause significant 
harm to other states is reiterated in the UNGA Resolution on World 
Charter for Nature 1982. It emphasises that early detection of 
any degradation threats on a shared natural resource considering the 
status of natural processes, ecosystems and species are very important. 
It recommends for timely intervention and facilitation by riparian 
states to remove such threats valuing relevant conservation policies and
 methods (Paragraph 19). It asks states to give supreme importance to 
protecting the resource, maintaining the balance and quality of nature 
and conserving natural resources, in the interests of present and future
 generations in using shared natural resources. The Final Act of the 
Helsinki Conference on Security and Cooperation in Europe (CSCE) (1975) 
has acknowledged the principles of international law relating to 
ecological protection.
It requires states to cooperate to ensure the progressive 
development, codification and implementation of international law as one
 means of preserving and enhancing the human environment, including 
principles and practices, as accepted by them, relating to pollution and
 other environmental damage caused by activities within the jurisdiction
 or control of their states affecting other states and regions. These 
instruments have recognised the coordinated and integrated management of
 TWRs planning to minimise socioeconomic and environmental impacts.
The UN Charter of Economic Rights and Duties of States (1972) has 
provided the responsibility of states not to cause damage to the 
environment in other state’s territory and required states to cooperate 
in international norms and regulations in the field of protection, 
preservation and enhancement of the environment (Article 30). It also 
provides that the environmental policies of all states should enhance 
and not adversely affect the present and future development potential of
 developing states. This responsibility was recapitulated in the 
Convention of Bio-diversity 1992 in relation to TWR, which states that 
‘damaging activities upstream frequently degrade the inland or coastal 
waters of downstream states’ (Article 3).
Article 14 gives extra importance on the necessity of EIA and 
minimising adverse impacts to maintain a sustainable ecosystem, wherever
 appropriate. The UNGA Resolution on Cooperation between States in the 
Field of the Environment (1972) asks states not to use TWRs in ways that
 create significant harmful effects on zones situated outside their 
national jurisdiction, rather to use the resource effectively through 
bilateral and multilateral cooperation or through regional machinery, to
 preserve and improve the environment.
Most of the South Asian states are parties to a number of 
global environmental instruments like conventions, treaties and 
declarations that are potentially applicable to TWRs management and 
utilisation. Among them, the 1972 Ramsar Convention aims to 
stop the progressive encroachment on and loss of wetlands as the 
components of natural inland water systems (Article 5). This Convention 
requires an understanding of the implementation of obligations between 
states in respect of TWRs and coordinated conservation of wetland flora 
and fauna. Provisions for preventing and mitigating harm related to the 
utilisation of TWRs are also found in a number of conventions, including
 the 1992 UN Framework Convention on Climate Change and the 1994 
Convention on Desertification.
The Convention on Environmental Impact Assessment in a Tran boundary 
Context 1991 (Espoo Convention 1991) defines the term ‘impact’ from a 
very broad aspects, which includes “any effect caused by a proposed 
activity on the environment including human health and safety, flora, 
fauna, soil, air, water, climate, the landscape and historical monuments
 or other physical structures or the interaction among these factors; it
 also includes effects on cultural heritage or socio-economic conditions
 resulting from alterations to those factors”. 
This Convention asks 
states to take all appropriate and effective initiatives, either 
individually or jointly, so that no adverse trans boundary environmental
 impact can take place from proposed activities (Article 2). It 
forcefully asks states to consider all anticipated affected stakeholders
 as early as possible at the same time when informing its own public 
about the proposed activity (Article 3). Article 4 obliges states to 
furnish the environmental impact assessment documentation to the likely 
affected stakeholders for their comments before taking any final 
decision about the projects. Article 5 invites states to conduct 
consultations, without delay, on the basis of the environmental impact 
assessment documentation.
Sustainable approach for the integrated governance of TWRs through 
multilateralism by which artificial structures like dams, storage 
(reservoirs) can be built wherever necessary, and operated for 
safeguarding the resource, the environment and the downstream impact.
To be continued.
To be continued.
 

 


