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Resolve the Teesta issue under Obiter Dicta of the UN Charter

16 April 2023

Sohail Arman :
The Teesta is a transboundary river shared by India and Bangladesh. In response to West Bengal's decision to dig canals to drain water from the Teesta, Bangladesh's foreign ministry has sent a note verbale to India, seeking information about media reports that said that India has initiated a project to divert water from the Teesta. The West Bengal government has decided to develop two additional canals to drain water from the Teesta. Jaldhaka, another transboundary river, would also be diverted into the canals for use in agriculture. The Teesta Barrage Project has already allotted 1,000 acres of land to the West Bengal Irrigation Department for the canals, which are anticipated to assist 100,000 farmers in Jalpaiguri and Coch Bihar. The decision of West Bengal to dig two more canals for diverting water from the transboundary Teesta River will badly affect the lives and livelihoods of about two crore people in Bangladesh.
A long ordeal for Bangladesh
54 rivers that go from the Himalayas to the Gulf of Bengal are shared by Bangladesh and India. The management of such transnational or transboundary rivers is best done in compliance with international treaties and norms, such as the UN Water-Sharing Convention of 1997, the Berlin Rules, and the Helsinki Rules. Yet, this takes the form of bilateral agreements between the relevant parties in South Asia. As a consequence, the higher riparian nations often benefit and get uneven shares. For instance, Bangladesh suffers when India builds canals and barrages. In relation to the Brahmaputra River, India and China share the same problem. As a consequence, Bangladesh has only been successful in convincing India to sign agreements regarding the Ganges and the Kushiyara rivers. The Ganges River Treaty was followed by the Kushiyara Agreement by over 25 years. The Teesta water-sharing agreement has not been signed after ten years of discussions.
The consequence
Northern Bangladesh will grow drier because of the arbitrary withdrawal of water. The advantages, meanwhile, will come at the expense of northern Bangladeshi farmers. Teesta is a transboundary river, and Bangladesh and India should share its water in accordance with the international water-sharing agreement in an equitable and fair way. Regrettably, Bangladesh has been deprived of such equality and reason as upper-riparian India builds barrages, dams, and canals on its own initiative, reducing the river's flow to Bangladesh.
Following the Obiter Dicta of the UN Charter for Good Will
So, what made India think that it could withdraw the water from the Teesta unreasonably? River basin management has long been advocated in the cases of Bangladesh and India to prevent such confrontations. But in order to do it, the higher riparian side must accept justice and logic. But unfortunately, India hasn't ratified the 1997 UN Convention on International Watercourses. The only one article can settle the Teesta issue which is Article 7 of the 1997 UN Convention on International Watercourses. According to Article 7(1) of the United Nations Watercourses Law or Watercourses Convention, no country can control the downstream or downstream of another country by damming upstream of any transboundary river. Article 5 of the Convention states: "(1) Watercourse States shall, in their respective territories, utilize an international watercourse in an equitable and reasonable manner.
And last of all, as Bangladesh's foreign ministry has sent a note verbale to India, seeking information about media reports that India has initiated a project to divert water from the Teesta, it is important to know Article 12 of the convention. Article 12 of the convention says: "Before a watercourse state implements or permits the implementation of planned measures that may have a significant adverse effect upon other watercourse states, it shall provide those states with timely notification thereof. Such notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified states to evaluate the possible effects of the planned measures."
Evidently, India is not bound to accept that clause. Because the treaty has not been ratified. But there is something that India and other member states of the UN haven't said yet. India is surely not bound to accept the 'ratio decidendi' of this law as it has not ratified it, but as a member state of the United Nations, it is bound to follow the 'obiter dicta' of all UN Charters.
 Brushing the issue under the carpet would be unwise
Brushing the issue under the rug would be detrimental to the long-term health of India-Bangladesh relations. Given the circumstances, it cannot be emphasized enough how important it is for Bangladesh to find a sustainable solution to the long-drawn-out Teesta water-sharing saga with India. Despite decades of negotiations and numerous promises from our Indian partners, the Teesta water-sharing agreement between Bangladesh and India is nowhere near being settled. So far, India has benefited the most from the deals that have been signed between India and Bangladesh. Be it the transit and transshipment corridor from Bangladesh or any other bilateral trade agreements, India has always been a gainer. The Teesta water-sharing issue can be an area where India can selflessly make Bangladesh the gainer to uphold the epitome of true friendship.

(The writer is a former Additional Secretary, Bangladesh Civil Service and PhD Fellow, The University of Newcastle, Sydney, Australia).

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