Ebb and flow of water-sharing treaties

By Shravan Yammanur

Earlier this month, a call by Bangladesh’s Chief Adviser Muhammad Yunus for finalising negotiations of the Teesta water-sharing treaty with India was surprising, given the lack of political and social capital now available with Bangladesh. The complexities of transboundary river agreements require India to take a calibrated approach as it has to grapple with historical, legal, and political dimensions.

The Teesta, which originates in India and flows into Bangladesh, has long been a bone of contention between the two nations. The 414 km-long river flows through Sikkim and West Bengal before entering Bangladesh. It is crucial to supporting nearly 14% of Bangladesh’s crop production, and almost half a dozen districts of West Bengal are dependent on its waters. While a formal water-sharing agreement appeared possible in 2011, domestic and regional challenges have stalled progress.

An Indo-Bangladesh Joint Rivers Commission (JRC) was established in 1972. It was set up to ensure the most effective joint effort in maximising the benefits from common river systems. In 1984, the JRC provided for an increase in Bangladesh’s share based on hydrological data to 37.5% of Teesta’s waters. India has thus been accommodative of Bangladesh’s needs and concerns even without a treaty.

However, with over 83% of the river’s catchment area in India, the issue of equitable water-sharing has been a sensitive one given Bangladesh’s propensity to use the China card. Two months ago, then Prime Minister Sheikh Hasina had expressed a preference for India over China to execute the $1-billion Teesta River Comprehensive Management and Restoration project to develop the river basin after hinting at the use of Chinese funding and technology in the strategic project.

India and Bangladesh entered into the Ganga Water Sharing Treaty in 1996, due for renewal in 2026. It was a milestone in India-Bangladesh ties. However, with the new interim government in Bangladesh, India has an uphill task in negotiating the Teesta waters issue and work towards renewing the Ganga treaty as the negotiations must be delicately balanced within a larger regional and international context.

The equitable distribution of transboundary rivers is governed by international law, particularly the Helsinki Rules of 1966 and the 1997 UN Convention on Non-Navigational Uses of International Watercourses. These rules and convention advocate for the “equitable and reasonable utilisation” of shared rivers, urging states to avoid actions that could cause significant harm to downstream nations. India is not a party to the 1997 UN Convention but the principles of equity and shared responsibility guides future negotiations of its water-sharing agreements.

Under international law, India is bound by the principle of equitable and reasonable use, as well as the obligation not to cause significant harm to Bangladesh. Yet, India must consider its own development needs, especially in light of hydroelectric projects in Sikkim and West Bengal.

Bangladesh has sought to address the potential ecological damage that may be caused by such projects, even proposing joint conservation efforts. Both nations can benefit from shared technical expertise to restore the health of the river, a move that could bolster India’s diplomatic standing and regional leadership.

India’s experience with the Indus Waters Treaty, a water-sharing agreement with Pakistan, offers valuable lessons. The treaty, which divides the Indus waters, has withstood geopolitical upheavals, including wars, showing that sustained cooperation is possible in a challenging political environment. But ongoing disputes between India and Pakistan over the Kishenganga and Ratle hydroelectric power plants highlight the need for clear dispute-resolution mechanisms as Pakistan has abused the Indus treaty to consistently stall India’s hydroelectric projects, and initiated parallel proceedings which defeat the purpose of water-sharing pacts. India has refused to recognise and participate in the parallel arbitration proceedings as the matter was pending before the neutral expert according to the terms of the Indus waters treaty.

Last month, India sent a notice to Pakistan for review and modification of the treaty. This is the second such notice by India, necessitated by Pakistan’s failure to respond to one issued last January seeking government-level discussion on modifying the treaty. India cited the impact of cross-border terrorism as one of the reasons for demanding the review and modification, besides climate change, demographic changes, and its clean energy needs. India has recognised that water-sharing agreements must reflect its geopolitical and security concerns by allowing for equitable management of transboundary waters with a clear dispute settlement mechanism.

As India engages with Bangladesh on critical water-sharing issues, it must consider the political and social landscape there. The recent political turmoil, including attacks on minority Hindu communities, raises questions about the interim government’s ability to negotiate in good faith. Rights violations and growing tensions in Bangladesh should be addressed first before embarking on new or renewed treaties. The Teesta water dispute is not just a bilateral issue. It has significant regional implications. By embracing principles of international law, fostering cooperative environmental stewardship, and encouraging Bangladesh to address internal challenges, India can lead the way to a sustainable solution.

India, as a regional leader and democratic powerhouse, must leverage its position to ensure Bangladesh upholds basic human rights standards. Engaging with Bangladesh on water-sharing issues while ignoring abuses would undermine India’s own values and international credibility. India must learn from its experience with the Indus Waters Treaty and reassess the negotiation of treaties governing the Ganga or Teesta rivers. The negotiation of India’s water-sharing treaties is not only an environmental and economic issue but must be deeply rooted in the broader political and security dynamics in South Asia.

The author is an advocate-on-record at the Supreme Court.

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