Why delay ratification of the UN Convention?

Water is the most important global resource these days, and disputes keep festering over the right to it. Diversion of water from rivers tripled in the past 50 years, mostly for the purpose of irrigation. Even entire flows of some rivers are now being used solely to meet human needs. And the natural flows of many others are disrupted by hydroelectric dams that only allow water to pass, when the dam authorities concerned want to produce electricity.
Disputes over rivers and water exist throughout the world. More than 40 per cent of the world's population live in 263 river basins that straddle international borders. The rivers Ganges, Danube, Rhine, Congo, Nile, Niger and Zambezi all pass through nine or more countries. The trans-boundary rivers account for 60 per cent of the world's water flows-two-thirds of them see no agreement on water sharing.
Bangladesh shares, mostly with India, fifty-four rivers originating in the Himalayas. The trans-boundary rivers flow through Indian territories, but India has not entered into effective agreements with Bangladesh on the blocking or diversion of river waters. An Indo-Bangladesh Joint Rivers Commission (JRC) exists, but it has been virtually not functioning since 1972.
India constructed the Farakka Barrage in 1975 in order to divert a portion of the dry season flow of the Ganges to increase navigability of the Kolkata port. When the barrage went into operation in 1975, the fresh water supply of the Ganges decreased considerably, with a number of consequent negative effects seen on the south-western part of Bangladesh. Agriculture, navigation, irrigation, fisheries, forestry, industrial activities etc have seen adverse effect of it. Salinity in soil has increased in the coastal areas, the ground water level has depleted and rivers have silted up hampering normal economic activities.
The proposed Tipaimukh dam on the trans-boundary river Barak in the north-eastern Indian state of Manipur has evoked public outcry in the said state and in Bangladesh. According to experts, the construction of the dam in a geologically sensitive zone, adjacent to the Taithu Faultline, gives rise to grave concerns about earthquake.
Bangladesh has only one water-sharing treaty with India-on the river Ganges. Despite the agreement, India is diverting water to its convenience, depriving Bangladesh of its just share of it during the dry season. India is reluctant to follow the bilateral agreement with Bangladesh and is also violating the Barcelona Convention on the Regime of Navigable Waterways of International Concern, 1921.
The Barcelona Convention's Article X contains the idea of sharing downstream and even upstream benefits, stipulating that where a state is obliged under the Convention to take steps to improve the river or is put to expense to maintain it for navigation, it is entitled to demand a reasonable contribution to the costs involved.
The Convention on the Law of the Non-navigational Uses of International Watercourses was adopted by the General Assembly of the United Nations on May 21, 1997. The law governing international watercourses will take either of the two general forms: treaty law or customary international law. If the states sharing an international freshwater resource are not parties to an applicable treaty, their rights and obligations are governed by the customary international law. Currently, the best known multilateral international water law agreement is the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses.
The Convention applies to the international watercourses and their waters, when used for purposes other than navigation. The principles laid down in the convention are: Watercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner.
In particular, an international watercourse shall be used and developed by watercourse states with a view to attaining optimal and sustainable utilisation thereof and benefits there from, taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse.
Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof, as stated in the present Convention.
The utilisation of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses requires taking into account all relevant factors and circumstances, including: (a) Geographical, hydrographical, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse states concerned; (c) The population dependent on the watercourse in each watercourse state; (d) The effects of the use of the watercourses in one watercourse state on other watercourse states; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use.
Before a watercourse state implements or permits the implementation of planned measures which may have a significant adverse effect on other watercourse states, it shall provide those states with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified states to evaluate the possible effects of the planned measures. Watercourse states shall, at the request of any of them, enter into consultations concerning management of an international watercourse, which may include establishment of a joint management mechanism.
One state may not intentionally cause harm to another through, for example, flooding or deliberate release of toxic pollution. Questions are, however, sometimes raised as to whether one state's use that reduces the available supply in another state is prohibited by this norm. The better view is that the latter situation is governed first and foremost by the principle of equitable utilisation. If harm is caused through a pattern of utilisation, that is otherwise equitable and reasonable, it should not be prohibited.
What is equitable and reasonable in any given case may be determined only by taking into account all relevant factors and circumstances-both natural (e.g. climate, hydrography) and human-related (e.g. social and economic needs of the riparian states). In the court battle, namely Gab…íkovo-Nagymaros Project (Hung. v Slovk.), 1997, the International Court referred to a riparian state's "basic right to an equitable and reasonable share of resources of an international watercourse." This decision affirms that each riparian state has to ensure that its use is equitable and reasonable vis-à-vis other riparian states. The International Court has referred to the Convention in the judgment, which means it has got a judicial ratification.
There are landmark international agreements that include the 1992 United Nations Economic Commission for Europe's Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes, and the historically important 1966 Helsinki Rules to resolve any dispute over water.
The Convention on the Law of the Non-navigational Uses of International Watercourses adopted by the General Assembly of the United Nations on May 21, 1997 has remained pending for ratification by minimum 35 UN member-countries since its adoption in 1997.
Bangladesh voted to pass the resolution in the UN General Assembly. Recently Vietnam ratified it as the 35th signatory and it will become an international law in mid-August 2014. India is naturally not in favour of this Convention.
The irony is that Bangladesh has not yet ratified the Convention. The country could reap benefits from this Convention in negotiations on water sharing with India and other countries. Bangladesh should ratify the Convention without wasting time.
The writer is a Legal Economist.
 shah@banglachemical.com