WATER DISPUTE BETWEEN INDIA AND BANGLADESH AND RELEVANCE TO INTERNATIONAL LAW

AUTHOR: ANUBHAV TIWARI, VIVEKANAND EDUCATION SOCIETY COLLEGE OF LAW

Water disputes are a critical issue in South Asia, a region characterized by a high density of population and a reliance on river systems for agriculture, drinking water, and industry. Among these disputes, the water-sharing conflict between India and Bangladesh over Transboundary Rivers is particularly significant. This article delves into the origins, current status, and implications of this dispute, while also exploring its relevance to international law.

HISTORICAL BACKGROUND

The India-Bangladesh water dispute primarily revolves around the Ganges and Teesta rivers, both of which originate in India and flow into Bangladesh. The Ganges River, which is crucial for both countries, has been a point of contention since the partition of India in 1947. The first formal agreement, known as the Ganges Water Sharing Treaty, was signed in 1996, following decades of negotiation. This treaty aimed to address Bangladesh’s concerns over dry-season water flow, which had been severely reduced due to India’s construction of the Farakka Barrage in the 1970s.

While the Ganges issue was somewhat mitigated by this treaty, the Teesta River remains a contentious issue. The Teesta is vital for the agricultural economy of both West Bengal in India and northern Bangladesh. Despite several rounds of negotiations, a comprehensive agreement on the Teesta’s water sharing has yet to be reached, leading to tensions between the two nations.

CURRENT STATUS OF THE DISPUTE

As of 2024, the Ganges Water Sharing Treaty remains in place, but its implementation has faced challenges. The treaty stipulates specific water-sharing ratios between India and Bangladesh, particularly during the dry season (January to May). However, Bangladesh has often expressed concerns that India is not adhering to the agreed-upon water allocations, especially during periods of low rainfall.

The Teesta River, however, remains unresolved. In 2011, a draft agreement proposed a 50:50 water-sharing arrangement between India and Bangladesh. However, political opposition within India, particularly from the state of West Bengal, has stalled the agreement. The West Bengal government argues that such an arrangement would harm the state’s agricultural interests, leading to a deadlock.

This unresolved dispute continues to strain the otherwise amicable relationship between India and Bangladesh, with periodic flare-ups in diplomatic tensions.

LEGAL FRAMEWORKS AND INTERNATIONAL LAW

The Principle of Equitable and Reasonable Utilization

The principle of equitable and reasonable utilization is central to the resolution of transboundary water disputes under international law. According to this principle, all riparian states are entitled to a fair share of the benefits derived from a shared watercourse. This entitlement is based on several factors, including the population dependent on the watercourse, the existing uses of water, and the need to ensure sustainable and environmentally sound management of water resources.

In the context of the India-Bangladesh water dispute, this principle suggests that both countries should have a fair and equitable share of the Ganges and Teesta rivers. The Ganges Water Sharing Treaty of 1996 attempted to operationalize this principle by establishing specific water-sharing ratios during the dry season. However, the effectiveness of this treaty has been challenged by Bangladesh’s concerns over the adequacy of water flow during critical periods.

For the Teesta River, the principle of equitable and reasonable utilization remains a guiding yet contentious point. Bangladesh argues that its share of the Teesta’s waters should reflect the significant population dependent on the river for agriculture and livelihoods. On the other hand, West Bengal’s political leadership argues that any significant diversion of Teesta water to Bangladesh could harm the state’s agricultural interests, particularly during the lean season when water is scarce.

Customary International Law

Although India and Bangladesh are not parties to the 1997 UN Watercourses Convention, many of its principles are considered customary international law. These principles, including equitable and reasonable utilization, the obligation not to cause significant harm, and the duty to cooperate, have been reflected in various bilateral agreements between the two countries. The Ganges Water Sharing Treaty, for example, incorporates elements of these principles, demonstrating their relevance in resolving transboundary water disputes.

However, customary international law also evolves over time, influenced by state practice and international jurisprudence. As such, the ongoing water disputes between India and Bangladesh could contribute to the development of new norms and practices in international water law. For example, the disputes could lead to greater recognition of the rights of downstream states or the need for more comprehensive environmental impact assessments in the planning of water diversion projects.

THE PROOF

1. Obligation Not to Cause Significant Harm

• Indus Waters Kishenganga Arbitration (Pakistan v. India) [2013 PCA]: This case highlighted the obligation not to cause significant harm, proving that even if an upstream country like India constructs infrastructure on a shared river, it must ensure it doesn’t significantly harm the downstream country, Bangladesh. This obligation is central to Bangladesh’s claims regarding the potential impact of India’s projects on the Teesta River.

2. Duty to Cooperate

• Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010 ICJ Reports 14]: The ICJ ruled on the importance of prior consultation and cooperation, a principle directly applicable to the India-Bangladesh context. It serves as proof that both countries are expected under international law to engage in thorough consultations before any significant alteration to shared water resources.

3. Right of the Upstream State

• Lake Lanoux Arbitration (France v. Spain) [1957 Reports of International Arbitral Awards, Vol. XII, p. 281]: This case demonstrates that an upstream state like India has the right to utilize a shared river provided it doesn’t cause significant harm to the downstream state and consultations are held. It proves that international law allows upstream usage under conditions that respect downstream rights.

4. Balancing Sovereignty with Environmental Protection

• Iron Rhine Arbitration (Belgium v. Netherlands) [2005 PCA]: Although focused on railway rights, this case emphasizes balancing national interests with environmental responsibilities. It proves that India and Bangladesh must both respect each other’s sovereignty while ensuring environmental protection in their shared watercourse management.

5. Relevance of Treaties and Customary International Law

• Indus Waters Treaty (1960): Although not case law, the treaty between India and Pakistan over the Indus River system provides proof that similar bilateral agreements, like the Ganges Water Sharing Treaty, are effective tools under international law to manage shared water resources. This supports the need for India and Bangladesh to potentially revisit and strengthen their existing agreements.

ABSTRACT 

The water-sharing dispute between India and Bangladesh, centered on the Ganges and Teesta rivers, is a critical issue in South Asia, impacting agriculture, drinking water, and industry in both countries. This abstract explores the origins, current status, and implications of the dispute, while highlighting its relevance to international law.

Historically, the dispute traces back to the partition of India in 1947, with the Ganges Water Sharing Treaty of 1996 being a significant milestone. However, unresolved tensions, particularly over the Teesta River, persist due to conflicting interests, especially from the Indian state of West Bengal. The ongoing dispute raises concerns over equitable water distribution, environmental sustainability, and diplomatic relations between the two nations.

International law offers key principles applicable to this dispute, including equitable and reasonable utilization, the obligation not to cause significant harm, and the duty to cooperate. These principles are exemplified in various international case laws, such as the Indus Waters Kishenganga Arbitration (Pakistan v. India), and Pulp Mills on the River Uruguay (Argentina v. Uruguay), which provide a framework for resolving such conflicts.

This abstract underscores the importance of adhering to international legal norms and suggests that continued negotiation, cooperation, and respect for each other’s rights and environmental sustainability are essential for a sustainable resolution to the India-Bangladesh water dispute.

CASE LAWS

1.   Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997 ICJ Reports 7]

• Background: This case involved a dispute between Hungary and Slovakia over the construction and operation of a dam project on the Danube River. The project was originally a joint venture under a 1977 treaty, but Hungary later suspended and then abandoned the project, citing environmental concerns. Slovakia unilaterally proceeded with a modified version of the project.
• Relevance: The International Court of Justice (ICJ) emphasized the principle of equitable and reasonable utilization of shared watercourses, highlighting that states sharing an international watercourse have a duty to cooperate and seek an equitable solution. The court ruled that both parties had breached their obligations, but it stressed the need for continued cooperation and negotiation to reach an equitable agreement.
• Application to India-Bangladesh: The Gabcíkovo-Nagymaros case underscores the importance of cooperation and equitable utilization in resolving disputes over shared water resources. It supports the notion that India and Bangladesh should continue to negotiate in good faith, considering both nations’ needs and the environmental impacts of water management decisions.

2.  Indus Waters Kishenganga Arbitration (Pakistan v. India) [2013 Permanent Court of Arbitration (PCA)]

• Background: This arbitration arose from a dispute between Pakistan and India over the construction of the Kishenganga Hydro-Electric Project (KHEP) on the Neelum (Kishenganga) River, a tributary of the Indus River. Pakistan claimed that the project violated the Indus Waters Treaty by reducing the flow of water to Pakistan.
• Relevance: The PCA ruled that while India could proceed with the KHEP, it must ensure a minimum flow of water to Pakistan, as required under the Indus Waters Treaty. The tribunal emphasized the need to balance the rights and obligations of both upstream and downstream states in a way that ensures no significant harm to either party.
• Application to India-Bangladesh: This case is particularly relevant as it involves two South Asian countries under a treaty framework similar to that of India and Bangladesh. It illustrates the importance of treaties in defining water-sharing rights and obligations and the role of international arbitration in resolving disputes when negotiations stall.

3.  Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010 ICJ Reports 14]

• Background: This case involved a dispute between Argentina and Uruguay over the construction of pulp mills on the Uruguay River, a shared boundary river. Argentina argued that Uruguay had breached its obligations under the Statute of the River Uruguay by failing to notify and consult with Argentina before authorizing the construction.
• Relevance: The ICJ reaffirmed the principle of prior notification and consultation in the management of shared water resources, as well as the obligation not to cause significant harm. The court ruled that while Uruguay had the right to develop the river, it should have consulted Argentina and conducted an environmental impact assessment (EIA).
• Application to India-Bangladesh: The Pulp Mills case highlights the duty to consult and conduct environmental assessments when managing shared watercourses. For the Teesta River dispute, this case underscores the importance of both India and Bangladesh engaging in thorough consultations and environmental assessments before making any unilateral decisions.

4.  Lake Lanoux Arbitration (France v. Spain) [1957 Reports of International Arbitral Awards, Vol. XII, p. 281]

• Background: The Lake Lanoux arbitration addressed a dispute between France and Spain over France’s diversion of water from Lake Lanoux, which affected downstream water availability in Spain. Spain argued that France’s actions violated its rights as a downstream state.
• Relevance: The tribunal held that France’s actions were lawful as long as they did not cause substantial harm to Spain and that France had taken measures to ensure that Spain’s rights were not significantly affected. The case established that an upstream state has the right to use water from a shared watercourse as long as it does not cause significant harm to downstream states and provided that consultation with affected states is conducted.
• Application to India-Bangladesh: The Lake Lanoux case reinforces the principle that upstream states like India have the right to utilize shared rivers, provided they do not cause significant harm to downstream states like Bangladesh and that there is adequate consultation.

Conclusion

The water-sharing dispute between India and Bangladesh over the Ganges and Teesta rivers is a complex issue deeply rooted in historical, political, and environmental factors. Despite the existence of treaties like the Ganges Water Sharing Treaty of 1996, the ongoing tensions, particularly over the Teesta River, underscore the challenges in achieving a comprehensive and lasting agreement.

International law provides crucial principles that can guide the resolution of such transboundary water disputes. The principles of equitable and reasonable utilization, the obligation not to cause significant harm, and the duty to cooperate are central to ensuring that both India and Bangladesh can share their water resources fairly and sustainably. Case law from similar disputes, such as those involving the Danube, Indus, and Uruguay rivers, demonstrates how these principles have been interpreted and applied in other international contexts.

For a sustainable resolution, both countries must commit to ongoing dialogue, respect for each other’s rights, and a shared commitment to environmental sustainability. The involvement of international legal principles and frameworks will be essential in guiding negotiations, ensuring that both nations’ needs are met while protecting the ecological health of these vital rivers. Ultimately, the path forward requires cooperation, mutual respect, and adherence to international norms to prevent further strain on the bilateral relationship and to foster a cooperative approach to shared water management.

FAQs

1. What is the main cause of the water dispute between India and Bangladesh?

• The dispute primarily revolves around the sharing of water from the Ganges and Teesta rivers, both of which originate in India and flow into Bangladesh. The Ganges issue stems from historical grievances, particularly after the construction of the Farakka Barrage by India, which Bangladesh claims has reduced its water flow. The Teesta River remains unresolved due to conflicting interests, especially between the Indian state of West Bengal and Bangladesh.

2. What is the Ganges Water Sharing Treaty of 1996?

• The Ganges Water Sharing Treaty, signed in 1996, is a bilateral agreement between India and Bangladesh that aims to ensure an equitable distribution of the Ganges River’s waters, particularly during the dry season. The treaty was a significant achievement after decades of negotiation and was intended to address Bangladesh’s concerns about reduced water flow due to the Farakka Barrage.

3. Why is the Teesta River dispute still unresolved?

• The Teesta River dispute remains unresolved due to the political complexities within India, particularly the opposition from the state of West Bengal, which argues that an equal water-sharing arrangement would harm its agricultural interests. Despite several rounds of negotiations, no final agreement has been reached, leading to ongoing tensions between the two countries.

4. How can India and Bangladesh move towards a resolution of their water disputes?

• Resolution of the disputes will require continued dialogue, mutual respect for each other’s needs, and adherence to international legal principles. India and Bangladesh must work together to develop agreements that balance their interests and protect the shared rivers’ ecological health, potentially with the involvement of third-party mediation or international arbitration if bilateral negotiations stall.