The Reality and Consequences of Farakka
After I compiled a list of questions and answers on Tipaimukh I thought of doing a similar on Farakka also. Farakka may contribute 50% more water to Bhagirathi-Hugli river system but it contributes equally to animosity between India and Bangladesh. After talking to innumerable Indians and Bangladeshis, I felt both sides have a lot of wrong arguments. In the era of open information, there are enough information available on the internet to debunk a lot of myths around it. I am hopeful it would rather promote debate with more openness and fact based arguments.
95% of the flow of Ganges is in India and 99% of the catchment area is in India. Why is it at all an International river?
This was the initial argument from Indian side when Pakistan requested India to divulge the details of Farakka project. India claimed with a similar argument that since the river is not international at all, they can do whatever they want to. But this is totally false because even 1% of catchment area and 5% of river length is sufficient to make it an international river. (The numbers 95 and 99 are too high)
Since Ganges flows through India, India has right to do whatever it wants to with Ganges water. This is as per territorial sovereignty which is the basis of nation-state in current political world.
This typical argument is known as Harmon doctrine or the “Doctrine of Absolute Territorial Soverignty”. This doctrine has long been rejected due to the inequity created by it. This places the upstream countries in a commanding position by the virtue of their geographical position. (To know more – The law of international watercourses By Stephen C. McCaffrey)
“The fact that the basic obligation to provide prior notification of such changes was accepted as a part of the Convention by most delegations is, in itself, important: it provides further evidence that the international community as a whole emphatically rejects the notion that a state has unfettered discretion to do as it alone wishes with the portion of an international watercourse within its territory.”
The benefits of the water resources should be shared equitably between riparian states.
India has no right to obstruct the flow of the river Ganges since it is an International river. Diversion at Farakka has caused Bangladesh significant loss, therefore, it is illegal. Bangladesh should be compensated for this loss.
To argue against this myth, I would again refer to the same book – The law of international watercourses By Stephen C. McCaffrey. He points out that the most common argument against the Harmon doctrine is what he calls the “Doctrine of Absolute Territorial Integrity”. It argues
“… that the upstream state may do nothing that could affect the natural flow of the water into the downstream state.”
However, this was also trashed along with the Harmon Doctrine. Because this places the upstream countries in a disadvantageous position. Although the river flows through the upstream country, they cannot use it only because they didn’t use it before. Most of the time, this is due to the geography of the area, which makes it easy for the downstream states to use the benefits of water resources – such as navigation, fishing and agriculture. As I mentioned in my previous section, the equitable sharing is the only legally accepted framework to deal with diversion case. Article 5 of UN law of non-navigational watercourse has established this and article 6 puts a few parameters for reaching an equitable agreement.
The law also do have a section dedicated to “Obligation not to cause significant harm”. However, the paragraphs under this clearly establish this obligation as a “Best effort” obligation. The first paragraph talks about “take all
appropriate measures to prevent the causing of significant harm” and the second one falls back to article 5 and 6 in case the significant harm is done. So, equitable sharing is the sole principle to determine fairness in sharing of Ganges water. At this point, one can go back to my old article and estimate what could be a fair sharing. I won’t comment further on the fairness of current sharing agreement, since I am not an expert on this. In my personal view, India did not take all appropriate measures to eliminate the extent of harm. But that does not establish the myth I am arguing against.
[To be continued …]