Waging legal battle against Tipaimukh Dam
Monday, 9 January 2012
M A Muid Khan concluding his two-part article
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 kilometres 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 (scheduled to be fully commissioned in 2009 after 16 years of work) 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 with 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 22nd 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 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 recognised 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, Barrister M A Muid, is a qualified legal executive lawyer of ILEX. He works as an Appeal Consultant & Practice Manager for Rest Harrow & Co Solicitor, Principal of EU Migration Services and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk
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 kilometres 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 (scheduled to be fully commissioned in 2009 after 16 years of work) 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 with 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 22nd 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 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 recognised 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, Barrister M A Muid, is a qualified legal executive lawyer of ILEX. He works as an Appeal Consultant & Practice Manager for Rest Harrow & Co Solicitor, Principal of EU Migration Services and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk