Tipaimukh Dam: Trans-boundary impact assessment and state of customary int’l law

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by Jakerul Abedin

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.

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.

The author is a PhD Candidate, School of Law, Macquarie University, Sydney, Australia

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