Waging international legal war against Tipaimukh Dam

 *By: Barrister M. A. Muid Khan

"Guided by the principles of equity, fairness and no harm to either party both the Governments agree to conclude water sharing Treaties/ Agreements with regard to other common rivers".
(Article IX of the 1996 thirty-year Ganges Water Sharing Treaty)

By ignoring all bilateral agreements and international laws and conventions on the customary international law of Trans-boundary Rivers and Lakes, India has decided unilaterally to construct Tipaimukh Dam for “so-called hydro-electricity” on the Barak River in its north-eastern Manipur state; without considering the adverse effect the Dam would create upon the environment and bio-diversity of the lower riparian Bangladesh. By taking this decision unilaterally, India has also violated her international obligation under the expressed provisions of the 1996 thirty-year Ganges Water Sharing Treaty signed by the heads of state of Bangladesh and India valid until 2026. India is under an international obligation to respect the provisions of this Treaty in the light of the 1969 Vienna Convention on The Law of Treaties, as it was signed by the heads of state of Bangladesh and India.

Question arises: Can Bangladesh refrain India from constructing the proposed Tipaimukh Dam on the Trans-boundary River Barak? In my opinion, if India wishes to construct proposed the Tipaimukh Dam unilaterally in breach of the principles of equity, fairness and no harm policy to Bangladesh, then Bangladesh would be entitled to wage an international legal war against India before the International Court of Justice (ICJ) to refrain India from constructing such Dam on the Barak River.

Therefore in this article an attempt would be made to clarify the possible adverse impact this dam would create upon the environment and bio-diversity of the lower riparian Bangladesh. It will also discuss the international legal rights and remedies available to Bangladesh under international law to wage an international legal war against India for justice.

India has decided to construct the proposed dam on the trans-boundary Barak River which flows between India & Bangladesh. In Bangladesh, it enters through Amalshid of Sylhet and becomes divided at Amalshid onto two branches and flows as Surma River (Right Branch) and Kushiara River (Left Branch). Both become united in Habiganj district and flow down as the Kalni River. The Kalni River joins with Ghorautra River near Bajitpur of Kishoreganj district to become the Meghna River. It then flows to Padma River near Chandpur district and falls into the Bay of Bengal, constituting a big estuary in Bangladesh. This estuary is the spawning place of Hilsa and other fishes as well as marine lives. The estuary is a part and parcel of ecology of Bangladesh which cannot be measured in terms of money.

Despite the assurance given by the Indian Prime Minister Manmohan Singh on 8^th September 2011 at a Dhaka University Conference saying that, "I wish to make a public statement and make it clear that India will not take steps that will adversely affect Bangladesh" yet Indian Government betrayed their friendship with Bangladesh by signing an agreement on 22^nd October 2011 forming a joint venture to construct the Dam on the Barak River in Manipur to produce “so-called 1,500-MW Tipaimukh hydroelectric project” keeping Bangladesh in dark.

The History reveals that India has never kept her promise before erecting any Dams on the common rivers. Before constructing the Farakka Dam, India did not provide any information regarding the Farakka Dam to the newly independent Bangladesh and constructed the Dam despite receiving strong protests against the Dam from Bangladesh. The Indian initiated bilateral talks with Bangladesh and signed a bi-lateral agreement only after the completion of the project when the newly formed independent Bangladesh Government took India before the International Court of Justice.

Experts opined that the proposed dam would be “a dangerous death trap” for Bangladesh as over three crore people of the country and its biodiversity would face negative impacts for the dam. Many water experts in Bangladesh expressed that the construction of the dam on the Barak River is expected to dry up the flow of Surma and Kushiyara, source of Meghna river and would bring negative ecological and environmental changes in vast areas of Bangladesh. This would ultimately destroy the big estuary of Bangladesh – the spawning birth place of our national fish “Hilsa” and other fishes.

In a research paper titled “Hydrological Impact Study of Tipaimukh Dam of India on Bangladesh”, published by the Institute of Water Modelling, Bangladesh, 2005, it was revealed that the erection of this dam would bring disaster to Bangladesh and “...cause long and short term effects of multiple dimensions – eco-hydrological, morphological, geological, biodiversity and environmental, climatic change and desertification, socio-economical, and finally political...”.

The research paper at page 61 further expressed that if India is allowed to erect the Tipaimukh dam, the average annual monsoon inflow from the Barak River at Amalshid to the Surma-Kushiyara River system would be reduced by around 10% for the month of June, 23% for July, 16% for August and 15% for September. Water level would fall by more than a metre on average during the month of July at Amalshid station on the Kushiyara River, while this would be around 0.25 metre, 0.15 metre and 0.1 metre at Fenchuganj, Sherpur and Markuli stations respectively. On the other hand, at Kanairghat and Sylhet station on the Surma River, average water level would drop by 0.75 metre and 0.25 metre respectively in the same month. Moreover, flows in July, August and September would be reduced by as much as 27%, 16% and 14% respectively – 4%, 2% and 2% higher than the volume reduction found for average monsoon year.”

It is also mentionable that the proposed Tipaimukh Dam would be constructed by India at a place on Barak River which is highly vulnerable to earthquake. “...If an earthquake of magnitude 7 or above jolts the region...” Mr Akbar Ali Khan opined that, “...it would damage the dam causing the risks of flood in Sylhet region of Bangladesh”. In the past, many dams were damaged by earthquakes. Due to an earthquake in 1925, the Sheffield dam at Santa Barbara in the USA collapsed. In 2008, Japingo dam in China caved in due to an earthquake. The most serious threat to this dam arises from the possibility of overtopping of water from reservoir caused by unusually excessive rainfall during the flood season (Akbar Ali Khan, “The Proposed Tipaimukh Dam: Search for Eternal and Perpetual Interests of India and Bangladesh” in The Journal of Asiatic Society of Bangladesh, June 2010).

There are many examples how construction of dams on rivers has affected adversely the environment in the long run. Aswan Dam in Egypt (completed in 1970) has developed major agricultural and environmental problems. The increased use of artificial fertilisers in farmland below the dam has caused chemical pollution which the traditional river silt did not. Irrigation control has also caused some farmland to be damaged by water logging and increased salinity, a problem complicated by the reduced flow of the river, which allows salt water to encroach further into the delta. The Aswan Dam tends to increase the salinity of the Mediterranean Sea, and this affects the Mediterranean's outflow current into the Atlantic Ocean. This current can be traced thousands of kilometers into the Atlantic. Due to the Aswan Dam inhibiting the natural fluctuations in water height, i.e. floods, the bilharzia disease has flourished causing great expense to the Egyptian economy and people. The battle with the disease continues.

In China, Three Gorges Dam on Yangtze River (fully commissioned in 2009 after 16 years of work, according to plan) is the world’s biggest hydro- power project and some environmental experts say that the Three Gorges Dam is “a model for disaster” and around the world, large dams are causing social and environmental devastation while better alternatives are being ignored.

The foregoing discussion reveals that the construction of the proposed Tipaimukh Dam on Barak River would be a “dangerous death trap” for Bangladesh. If India fails to cooperate Bangladesh to resolve the dispute regarding the Tipaimukh Dam peacefully, in that case, Bangladesh should take this matter before the International Court of Justice without any hesitation.

Under International Law, India has no right to divert unilaterally the flow of the trans-boundary Barak River by constructing the proposed Dam at Manipur State. In accordance with the provisions of the United Nations Convention on the law of International Watercourses 1997, India is under an obligation to provide data and information on the condition of the watercourse, exchange information and consult with Bangladesh, if necessary negotiate on the possible effect of the planned Tipaimukh Dam on the condition of the water of trans-boundary river Barak (Article – 11). Bangladesh has signed and ratified this Convention and therefore can bring India before the International Court opposing projects like Tipaimukh to be built unilaterally by India. The 1997 convention emphasises comprehensive cooperation for equitable utilisation of the watercourses, no-harm to any watercourse stares and adequate protection of international watercourses.

In addition, India is also under an international obligation to give adequate notice to Bangladesh regarding the proposed dam which would have significant adverse impact in Bangladesh. This Notice must provide sufficient technical information to enable Bangladesh to determine whether her interest will be adversely affected. Prior notification is an international obligation regardless of whether there is a special agreement between India & Bangladesh. India has not yet given any notice to Bangladesh with sufficient technical information regarding the proposed Tipaimukh Dam to enable Bangladesh to determine whether her interest will be adversely affected. By signing an agreement on 22^nd September 2011 without giving any notification to Bangladesh to construct the Tipaimukh Dam on Barak River, India has clearly violated the provisions of international law.

In accordance with the provisions of the 1996 thirty-year Ganges Water Sharing Treaty India is under an international obligation to be guided by the principles of equity, fairness and no harm to Bangladesh before the construction of any dam on the trans-boundary Barak River. India has failed to fulfil her commitment under this treaty by failing to share information with Bangladesh regarding the proposed Tipaimukh Dam.

Under customary international law, Bangladesh has a legal right to forward this matter before the International Court of Justice if India continues to refuse to settle this dispute peacefully and amicably through bi-lateral agreement. In settling this dispute, under Article 38 of the Statute of the International Court of Justice, the court is empowered to consider the 1996 thirty-year Ganges Water Sharing Treaty treaty for assessing the validity of the proposed construction of Tipaimukh or any other structure on shared rivers between Bangladesh and India.

The International Court of Justice would be entitled to consider the provisions of international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law with a view to settle the dispute between Bangladesh & India regarding the proposed Tipaimukh Dam.

Bangladesh can also apply for an order from the International Court of Justice against India for cessation of the wrongful conduct of India, guarantee by Indian Government for non-repetition of wrongful act, satisfaction (apology, exemplary damages), restitution and compensation from the Indian Government.

We should not forget the outcome of bitter experience of the impacts of Farakka barrage. Before erecting this barrage, India gave us a false hope that it would be beneficial for Bangladesh. In reality, over the past 40 years we have experienced how adversely Farakka barrage has affected every aspect of our environment, economy and people of Bangladesh. If India sticks to its original plan of constructing a Barrage at Fulertol or elsewhere to divert the water stored in the Tipaimukh, the impact would be a reminiscent of the Farakka Debacle. At the national & international level, Bangladesh should not be worried to exercise her legal rights freely and independently to express her views to protect her won national interest. Our foreign policy should not be submissive to India which would only give India an opportunity to construct the dam unilaterally. Bangladesh always supports very strongly to resolve any dispute including Tipaimukh Dam with India peacefully. However, we cannot allow India to take the advantage of our good wishes by ignoring our legal rights. We cannot allow India to contrast the proposed Tipaimukh Dam unilaterally which would become another “model of disaster” and a “permanent death trap” for Bangladesh.

If India fails to cooperate with Bangladesh to resolve this dispute peacefully, then both the ruling party and the party in opposition should stand in the same platform for the sake of national interest to form a strong uniform consensus to refrain India from erecting the Tipaimukh Dam. If this diplomatic approach fails, then as a last resort, Bangladesh should not hesitate to wage an international legal war against India and bring her before the International Court of justice with a view to compel her to ensure that she would respect the principles of equity, fairness and no harm policy to Bangladesh before constructing the proposed Tipaimukh Dam on the Barak River.

*(The writer is a Barrister of Lincoln's Inn and Qualified Legal Executive Lawyer of ILEX).