Nepal has been touted to be rich in water resources and the proper utilization of her vast water resources and the intensification of the tourism industry are considered as one way ride to economic prosperity that the region of South Asia has not been able to boast of till date. This belief highly publicized, especially in the last half century, notwithstanding, the ground reality is that the state has not been able to utilize her water resources to meet the drinking water, irrigation, power and navigational requirements of her people.

Her attempts to cooperate at the regional level with regards to trans-boundary rivers for proper management of her water resources also have not yielded any desired outcome. The scope of this paper is to analyze the status of the water resources of Nepal at the regional level. We will first start with the existing water sharing agreements between the states of the region. We will then focus on the Indo – Nepalese relationship – its past, present and future, attempts made and attempts failed.

We will try to analyze the reasons behind the scenes that led to the present situation. We will also try suggest the remedial measures to correct the past blunders to the extent of practically possible correction. For this purpose we shall cite the experience earned through various regional as well as the international arrangements. We shall attempt to analyze why Indo – Nepalese relation has been jarred while the Indo – Bhutanese issues on the similar issues have led to the benefits of both of the nations. Keywords: GBM Basin of South Asia

The system of the Ganges, the Brahmaputra, and the Meghna (GBM) basin that spans across five countries: Bangladesh, Bhutan, China, India and Nepal is second only to the Amazon river basin with its 1. 75 million square kilometer of catchment area. While Bangladesh and India share all the tree river basins, China shares only the Brahmaputra and the Ganges basin, Nepal only the Ganges basin and Bhutan, only the Brahmaputra basin (Salehin et al. ). Despite such plethora of water in the region, the development of this region has stuttered for long with a number of water management problems acting as a major setback.

The genesis of these problems can be attributed to the vast inequalities in the temporal and spatial distribution of water in the region. As a consequence, most of the states of this region are victims to the same water – related issues, namely floods, droughts, dry season water scarcity, power insufficiency and pollution of the available water resources. Management of water resources in the region has become all the more challenging because of the huge population, the anticipated population growth and the prevailing poverty situation.

About 10 per cent of the world’s population lives in this region that represents only 1. 2 per cent of the world’s land mass. The development and management of the GBM basin has been subject to a number of geopolitical constraints that have led to a number of disputes that are among the notorious trans-boundary water related issues in the international arena. While Nepal covers only 13 per cent of 1. 08 square kilometer area of the Ganges basin, this catchment contributes to 45% of the long – term average annual flow and 75% of the flow during driest months of the Ganges River basin (Upreti).

Regional Cooperation in Water Resources This section discusses the existing cooperation arrangements in the South Asian region before embarking exclusively into Indo – Nepal Water Resources relationship. India and Bangladesh share 54 rivers, however, Ganges Water Treaty is the only water sharing agreement that exists today between the two states. Even this treaty is not without the elements of discordance. India has constructed Farakka dam to solve siltation problem at Calcutta by diverting the water of Ganges to Hoogly river ignoring the water rights of Bangladesh as a downstream riparian state.

The construction of the dam itself is associated with the secession of Bangladesh from Pakistan. Downstream water right issue associated with this treaty, though an interesting topic of study, is not the scope of this study. Furthermore, dialogues between India and Bangladesh are on course regarding the sharing of Teesta and Feni waters guided by the principles of equity, fairness and no harm to either party and the agreements have been drafted but are yet to be signed following the strong objection of the West Bengal state government.

On the other hand, the water sharing agreements between India and Bhutan have brought huge benefits to both the states. Such cooperation has been mainly concentrated for development of hydropower in Bhutan to meet her internal demand, which is minimal, and to export the surplus to India amidst her huge power demand that has generated considerable revenue to Bhutan as a result of which Bhutan is on the way to become the nation with highest Per Capita Income in South Asia.

Commenced with the signing of Jaldhaka Agreement in 1961, the first major hydroelectric project developed in bilateral cooperation was 336 MW Chukhahydel Project across river Wangchu in Western Bhutan. The recent example is of Tala hydel project of 1020 MW installed which is constructed on the financing of GoI with 60% of the project cost as grant and remaining 40% as loan. India also has funded a scheme called ‘Comprehensive Scheme for Establishment of Hydro – meteorological and Flood Forecasting Network on Rivers Common to India and Bhutan’ which is to be maintained by RGoB.

This successful implementation of cooperative efforts for sharing of mutual benefits can be a lesson to other nations of the region. Nepal and Her River Systems Nepal is a landlocked Himalayan country surrounded on the south, east and west by India and on the north by Tibet – an autonomous region of China – and comprising an area of 147,181 km2. There are about 6000 rivers and rivulets in Nepal, having a total drainage area of 194,471 km2, 45. 7% of which lies in Nepal. There are 33 rivers whose drainage area exceeds 1000 km2.

Rivers in Nepal can be typically classified in three types depending on their discharge. The Kosi, Gandaki, Karnali and Mahakali river systems originate in the Himalayas and carry snow-fed flows with significant discharge even in the dry season. The Mechi, Kamala, Bagmati, West Rapti and Babai rivers originate in the midlands or Mahabharat range of mountains and are fed by precipitation as well as by ground water regeneration. These rivers are also perennial but are characterised by a wide seasonal fluctuation in discharge.

Apart from these river systems, there are large numbers of small rivers in the Terai, which originate from the Southern Siwalik range of hills, and are seasonal with little flow during the dry season, but are characterized by flash floods during the monsoon. Most of the rivers originate from the Himalayan range within Nepal, while some originate from the Tibetan Plateau; all these rivers drain southwards to the Ganges in Northern India and ultimately into the Bay of Bengal. The Mechi and Mahakali rivers form the eastern and western boundaries with India and the other rivers flow to India, being transboundary in nature.

The available hydrological data reveals the estimated annual runoff into the rivers of Nepal to be 220 billion cubic meters, with the average annual precipitation being 1530 mm per year. Several studies suggest that Nepal theoretically has 83000 MW of hydropower potential, more than the combined total produced by the United States, Canada and Mexico, of which about 43000 MW is presently considered economically viable to harness. Despite the abundance of water resources, only about one third of the population has got access to safe water, and only 42% of the net calculated land has been irrigated so far.

Of the four Himalayan river systems of Nepal, three are already bound by treaties with India, these treaties being deemed unequal and unfavorable to Nepalese interests and in some cases even harmful (as in the case of the annual flooding caused by the Koshi River). Table 1Theoretical Hydropower Potential of Nepal Nepal – India Water Cooperation The relationship between Nepal and India with regards to the sharing of water resources dates back to 1920 when letters were exchanged between the then Prime Minister Chandra Sumsher JBR and the head of the British Legation in Nepal regarding the Sarada (Mahakali) Barrage.

We will, at this moment, present a brief overview of the Water Resources treaties extant between Nepal and India. 1. Agreement on the Koshi Project, 1954 (amended on 19 December 1996) This treaty was concluded with the prime objective of constructing a Barrage and related structures about three miles upstream of Hanuman Nagar town on the Koshi River with afflux and flood banks, and canals and protective works on the land lying within the territories of Nepal for the purpose of flood control, irrigation, generation of hydro – electric power and prevention of erosion of Nepalese areas on the right side f the river, upstream of the barrage. The salient features of the treaty are: * Nepal is entitled to draw water for various purposes from Koshi River and her tributaries as may be required. * Water at barrage site shall be regulated by the GoI. * Nepal is entitled upto 50% of hydel generated from the Power House within 10 miles radius of the barrage and constructed by the GoI. The project area shall be leased to the GoI for a period of 199 years (in 1954 agreement it was leased infinitely). 2. Agreement on Gandak Irrigation and Power Project, 1959 (amended on 30 April 1964) The objective of this treaty was to construct a Barrage and related structures about 1000 feet below the existing Tribeni canal head regulators for purposes of irrigation and development of power for Nepal and India.

The salient features of the treaty are: * Eastern Nepal Canal shall be constructed by the GoI to irrigate gross command area of 40,000 acres. * Western Nepal Canal shall be constructed by the GoI to irrigate gross command area of 1,03,500 acres. * Distributaries below 20 cusecs capacity shall be constructed by HMG and the cost will be reimbursed by the GoI. * GoI will construct a 15 MW Power House on Nepalese territory on the main Western Canal for Nepalese use. . Treaty concerning the Integrated Development of Mahakali River including Sarada Barrage, Tanakpur Barrage and Pancheshwor Project (12 February 1996) This treaty consists of three components: the Sarada Barrage which was already built under 1920 agreement, the Tanakpur barrage that was constructed unilaterally by India against the spirit of IWL and the Pancheshwor Multipurpose Project to generate MW of power in an integrated manner.

The salient features of the Treaty are: * The treaty was ratified by the Joint Session of Nepal’s two House of Parliament with an overwhelming majority on September 20, 1996. * This treaty has recognized Mahakali River as a trans-boundary river between Nepal and India. * The four National Strictures (Rastriya Sankalpas) passed during the ratification of the treaty are: * Export of energy and its pricing principle * Formation of Mahakali River Commission * Equal sharing of waters of the Mahakali River after the Pancheshwor Project * Status of the Mahakali River The agreement has the provision of the review of the treaty in every 10 years. Critical Review of Nepal India Hydro Relationship The case of Nepalese water resource development is unique in comparison with the circumstances in other countries; Nepal has huge water resources available with a tiny land area requiring irrigation and a very low demand for hydroelectricity. Conversely, India has got a huge territory but sufficient water is not available during the dry season, either for herself or for Bangladesh.

Also Nepal is not endowed with necessary financial and technical resources to harvest benefits for herself. Consequently, it has always been in Nepalese interest to share her waters to harvest mutual and equitable benefits and various water resources have been concluded with India with the view of attaining this goal. Despite this seemingly good practice prima facie, Indo – Nepal relationship has been nowhere near satisfactory and at mutually beneficial level as had been anticipated.

It has been reported that Late King Birendra himself once remarked that his country had been cheated by India in the case of the Koshi and the Gandak. Here we shall attempt to present a critical review of Nepal India Hydro Relationship with respect to various agreements concluded at various times. 1. Koshi Agreement (1954, Amended 1996) * While the life of hydraulic structures are generally taken as 50 years at the most, the agreement was ridiculous in that the Nepalese land was leased infinitely for the project.

This was amended in 1996 to a period of 199 years which is not less ridiculous. * Initially the barrage site was designed at Barahakshetra – further upstream of its present location – in which case, the irrigation and flood control benefits would have been greater to Nepal and Nepal should have stuck with the original plan. Nonetheless, Nepal agreed to the present site at Nepal – India border, thus losing even the little she might have had. * India had agreed to the socioeconomic development of the region under her investment (Cl. 3) but this Clause of the agreement has not materialized as yet. * GoI should have compensated the Nepalese owners whose land had been acquisitioned for the project (Cl. 8), but the reality is not so.

* Through the treaty Nepal lost her inherent rights on her water as the right to regulate the barrage gate was vested only on the GoI (Cl. 4, SubCl. i). * Under the treaty, the regular maintenance works of the barrage and embankment was devolved to Indian side, but her laxity in fulfilling her responsibility has led to embankment breach from time to time. Nepal is not getting any compensation when her land gets inundated during high flood as there is no such provision on the treaty. * Failure of the Indian authority to heed to the flood warning signal sent by the barrage control authorities led to the Bihar Flood of 2008. * Chatara Inundation Canal which was to be built by GoI to irrigate 60,000 hectares of Nepalese land was able to serve only 10,000 ha. As the Indian side failed to carry out its renovation works as promised, the canal became defunct and Nepal had to renovate it with IDA loan after she took over its operation in 1976.

Hydel generation under the Koshi Agreement has not been carried out. 2. Gandak Agreement (1959, Ammended ) * Though theoretically HMG is entitled to withdraw water from use in Gandak Valley, “the trans – Valley use of Gandak waters” is prohibited by the Clause 9 of the treaty. It means that water diversion into Kathmandu Valley from any tributary of this river system ( like from Tadi Khola across the Shivapuri Range) is prohibited. Pursuant to the treaty India takes 32,000 cusecs of water for irrigation in Bihar and UP and leaves only 1,216 cusecs for Bara, Parsa, Rautahat and Nawalparasi District of Nepal. * The road bridge constructed under this project, for which Nepal was assured of a locking arrangement for facility of riverine traffic across the barrage free of any tolls (Cl. 5, SubCl. iii), has proved to be a provision that has so far remained mere theory, as no inland water navigation was developed.

* The treaty has neither the provision for review nor has it any timeframe. 3. Mahakali Agreement (1996) It is claimed that this treaty has ulterior motives to rejuvenate the now defunct Sarada Barrage, to provide legal standing to Tanakpur Barrage which has violation of IWL written all over it and to control the water of Mahakali River and Pancheshwor Multipurpose Project is a mere pretense to achieve these motives and GoI has never had the intention of seeing through its implementation. The failure of the Panchshwor DPR to see the sun till this day, which otherwise should have been prepared within 6 months of the signing of the treaty is a strong evidence to support this argument. Equal sharing of water of Mahakali after Pancheshwor may seem attractive prima facie, but the big question is do we have necessary resources to utilize our share of water beneficially?

If Nepal is not able to use her share, by default, India is free to use it and there is no provision of recompense to Nepal for such use. * Though equal sharing of water has been emphasized in the treaty but there is conflict regarding the consumptive use of water. It has not been indicated if the sharing is applicable to ‘pre-‘ or ‘post-‘ deduction of ‘existing consumptive use’ of water. The treaty has been finalized without any tangible decision with regards to energy export and its pricing principle. Though Nepal has advocated the use of the principle of ‘avoided cost’, India has never furnished any promises. * During the ratification of the treaty four National Strictures (Sankalpa Prastabs) were passed by the Nepalese Parliament on September 20, 1996. There is no any record of these concerns being voiced by the Nepalese delegates in the subsequent joint meetings as they should have been.

But it is worth mentioning here that India is not bound by these Strictures pursuant to the Article 20 (Acceptance of and objections to Reservations) of the Vienna Convention on Law of Treaties. * There is a conflict regarding the origin of Mahakali River. According to the letters exchanged on the wake of the signing of the treaty, it was decided that this conflict would be resolved but no step has been taken towards this purpose. * The treaty has been criticized on the grounds that the Nepalese territory will be inundated in order to maintain temporal availability of water to India. While Pancheshwor DPR and Mahakali River Commission are off the horizon, Pancheshwor Development Authority has been constituted during the premiership of Madhav Kumar Nepal. This smells of foul play. * The actors in play during the signing and ratification of Mahakali Treaty are trying to justify this treaty in terms of contemporary energy crisis, which is a really deplorable step. 4. International Navigation for Nepal According to the Article 3 of Barcelona Convention, 1921 coastal state shall accord free navigation to the ships flying the flag of another state through the navigable waterways lying under its sovereignty.

Also according to the United Nations on Convention of Law of Seas (UNCLOS), Part X – Right of Access of Land-locked States To and From the Sea and Freedom of Transit – Nepal as a land-locked state without any sea-coast shall have the right of access to and from the sea for the freedom of transit through the territory of transit state (Article 125) without any custom duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic (Article 127).

But Nepal has yet to enjoy such rights in the foreseeable future as India renounced the Barcelona Convention in March 1956. Exercising of such rights received further setback when India completed Farakka Dam Project, thus virtually ending Nepal’s shortest access to the sea. Silver Lining on a Cloudy Sky While severe criticisms shall always prevail and rightfully so, there are a few brighter aspects – a silver lining in a cloudy relationship – that must be given due consideration while analyzing the century old relationship between Nepal and India where the sharing of water is concerned.

Some of them are enumerated below: * The exclusive right to withdraw water for irrigation and various other purposes has been entitled to Nepal in case of Koshi and Gandak Treaties. Thus the treaty has acknowledged our right to the waters of these rivers. * There is no any restriction imposed on trans – Valley water transfer in the case of Koshi Treaty. As a due acknowledgement of this, India has never raised any concern regarding the withdrawal of water from Melamchi River for supplying drinking water in Kathmandu. Though the construction of Tanakpur Barrage is always contentious, through Tanakpur MoU India agreed to give 70 GWh of electricity free of cost in lieu of 10 hectares of Nepalese land. * Despite the indelible marks of dispute Mahakali Agreement can be viewed positively in that it has adopted an integrated basin planning approach. It is the first agreement through which India has shown readiness to join hands with Nepal to manage the river basin for long term mutual benefits. * If Pancheshwor Multipurpose Project is implemented, the energy requirement of Nepal will be fulfilled.

Causes behind the Discordant Relationship Despite our ages old relationship, there is a mass feeling of caution in the Nepalese public where any agreement with India is concerned. It is unfortunate that both the nations have not been able to address this feeling. In this section we shall try to analyze, as objectively as possible, the causes behind such concern. * Despite the Gujral Doctrine which advocates balanced neighborly relationship with no reciprocal advantage from small neighbors, in practice, India’s attitude towards Nepal has not been that of non – reciprocity.

Unless the Gujral Doctrine is given prime importance in all our mutual arrangements, no such arrangement shall be deemed as healthy or equitable. * India’s attitude of “build first, negotiate later” has marred her credibility with her neighbors. The construction of Tanakpur Barrage and Farakka Dam can be cited as examples. Elaboration of these is not the scope of this text. * The scars of the wound induced by the irrational Trade and Transit embargo and blockade imposed by India on Nepal on 1998 despite the Trade and Transit Treaty of 1978 will not heal that easily. If we trace the history of these treaties, we observe that most of them have been concluded during the period of political instability in Nepal or the incumbent government is of interim nature (conclusion of BIPPA is a recent example). Such government fundamentally does not have any right to go forward and carry out such agreements that shall have long term ensuing impacts to the nation. But since international forum will not acknowledge the backdrop, the dissidence of the aftermath will only contribute to embitter the relationship.

If we delve into the backdrop to Mahakali Treaty, we observe that a constitutional democratic process was in its full throttle. Despite the presence of the people’s representatives in the parliament and the government, the treaty was concluded by a coalition government. People like Santa Bahadur Pun and Surya Nath Upadhaya have raised concerns regarding the sharing of Mahakali river, and have gone forward to stipulate that the Treaty was finalized in order to maintain the coalition. Thus, it can be concluded that in this case, the petty personal interests have taken precedence over national interests. Changes in foreign policy with the change of ruling party or even ruling personnel will never allow us to have a stable and harmonious foreign relationship. Lessons to be learned from International Practices We have experienced the vicissitudes of our relationship with India. In this backdrop it would only be appropriate to provide introduction to various prevailing international practices which pertains to our water related issues with India. 1. Columbia River Treaty This treaty was signed between the USA and Canada in 1961 and implemented in 1964 for flood control and power production objectives.

Sharing the benefits of cooperative water management was an integral part of the treaty. Some of the salient features of this agreement are listed below: * For the flood control Canada was to be paid 50 percent of the estimated value of the US flood damage prevented. Instead of receiving an annual payment for the flood control benefits through 2024, Canada elected to receive lump sum payments totaling $64. 4 million. * In exchange for providing and operating the treaty storage projects for power, Canada also received an entitlement to ? of the estimated downstream benefits generated in the US.

Canada initially sold its share of this additional power, called the Canadian Entitlement, for $254 million to a consortium of US utilities for a period of 30 years. After the expiration of this agreement in 2003, the Canadian Entitlement power is delivered on a daily schedule to the Province of British Columbia at the US- BC border for Canada’s or resale. * Either Canada or the US can terminate most of the provisions of the Treaty any time on or after Sept. 16, 2024, with a minimum 10 years’ written advance notice. This treaty is an example in which the upstream riparian state has received equal share of the downstream benefits.

This is a precedent which can be implemented in case of Mahakali Treaty. 2. Mekong River Commission (MRC) For the integrated development of the Mekong River Basin, MRC was established in 1995 by Laos, Thailand, Cambodia and Vietnam. This river basin has following features that are similar to Ganges River Basin which makes it of an interest to us: * Geopolitically, Mekong River originates in the Tibetan Plateau and runs through China, Myanmar, Laos, Thailand, Cambodia and Vietnam. In both the river basins, China is the upstream riparian state but has very less interest in the integrated development because of very mall benefits that she can harvest from both the basins. * Of the remaining states, Thailand is the most powerful – both economically and strategically in the Mekong basin, India being her counterpart in the Ganges Basin. * The rest of the states that share the Mekong River are weak, both strategically and economically and have gone through long political instability and turmoil, similar to that experienced by Nepal and Bangladesh of the Ganges Basin. Mekong River management is far from being an ideal trans-boundary water management attempt in comparison to Columbia River Treaty.

It has experienced the vicissitudes of water sharing agreement between the states of huge strategic, economic and political disparity and in that respect its present status as well as its progress or failure in the future can be a reference to us. 3. Indo-Bangladesh Teesta River Conflict Indian Prime Minister Man Mohan Singh and his Bangladeshi counterpart Seikh Hasina Begam were set to ink the Teesta Water Treaty on September 2011 but the plan fell through at the last moment due to the non-cooperation and objection of the West Bengal CM Mamata Banerjee.

The proposed treaty envisaged equal water sharing (50:50) but CM Banerjee opposed to any such agreement that provided for less than 75:25 split in India’s favor, the advocated reason behind this objection being the water requirement of West Bengal as the upper riparian state. Taking this as a precedent, Nepal as the upper riparian state could enter into water sharing deals only when such sharing is not detrimental to her interest. 4. Lesotho Highlands Water Project (LHWP) LHWP is an ongoing water supply project with hydropower component, developed in partnership between the government of Lesotho and South Africa.

The project involves a system of several large dams and tunnels in Lesotho to provide water for South Africa. For the inundation of territory in Lesotho and the downstream benefits to be garnered by South Africa, the government of Lesotho will be provided with royalty that is to be used for developmental purposes. Furthermore, South Africa will also aid Lesotho for hydropower development, all of which will be used to fulfill the demand of Lesotho. This project is spectacular not only in highlighting the cooperative efforts to fulfill mutual demands. It is also noteworthy due to he negative social and environmental impacts (as the treaty to ratify the project was signed prior to the era of environmental flow assessment) that have ensued with prolonged threats. Recommendations to Existing Problems It has already been acknowledged that problems are inherent in all of our agreements with India. Therefore, various recommendations are presented for smooth Indo-Nepal relationship: * General * Since we don’t have the potential, either economical or technological, Nepal as an upper riparian state has to advocate ‘equal sharing of benefits’ not ‘equal sharing of water’.

Columbia River Treaty is a precedent. * For the sustainable, reasonable and equitable sharing of water and overall development of the Ganges Basin, integrated and adaptive management of river basin as has been attempted in the Mekong River Basin. * Specific * Nepal could demand for the review of Mahakali Treaty, as per the provision of the treaty that it can be reviewed every 10 years, to decide the fate of the treaty given the non-implementation of Pancheshwor Project. * Nepal should demand regular maintenance of Koshi Barrage and its appurtenant structures by the Indian Government.

Limitations and Recommendations Despite our genuine attempt to portray a century old relationship on water resources, our study is rife with limitations. Some of them are enumerated below: * Given our common ancestry, religion, culture and tradition, any attempt to analyze the relationship between Nepal and India considering only the sharing of common waters will be a gross underestimation of that relationship. Therefore, further studies that acknowledge this unique relationship is recommended. * Sharing of common rivers is not just a technical or a legal issue.

Its economic, social, cultural and diplomatic implications are huge and therefore a multidisciplinary study is recommended. * The agreements on water resources discussed in this study are not the only agreements between Nepal and India. Analysis of the remaining agreements is also recommended. Conclusion Nepal is second only to Brazil in the ownership of water resources. Despite this it is a tragic that we have not been able to utilize this vast resource to meet our drinking water, irrigation and power requirements. It is due to the fact that we lack the economic independence as well as the technological enhancement for that purpose.

This situation necessitates that we share our water with our neighbors. During such sharing, it would do us good to advocate the sharing of equal benefits and not equal waters. Our previous attempts at water-sharing have not brought us the anticipated benefits and are therefore the targets to huge criticism. Taking lessons from our past mistakes, failures and experience it is necessary that we incorporate the principles of integrated and adaptive water management for equal sharing of benefits for the overall economic progress of the region.

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