Construction of Tipai Mukhi Dam: Its validity under International Law

Construction of Tipai Mukhi Dam: Its validity under International Law

Introduction:

The two neighboring countries Bangladesh & India share many rivers and water possessions. River Barak & the Brahmaputra or their tributary flowing crosswise through the north east regions of India are inflowing into Bangladesh are generally International River’s.  The two of the rivers plays very important role for sharing the joy and sorrow of both Bangladeshi and Indian people. India and its government has initiate lots of river projects that will have tremendous negative impact on the, environment, agriculture, fisheries, hydrology, ecology & socio-economy etc. of Bangladesh situated nearby of Indian state of Assam, Manipur & Tripura at downstream of those river projects that is receiving all the improvement.[1]

Building of Tipaimukhi dam by India on the international Barak River has raised a number of questions in relation to booming accomplishment of World Commission on Dams (WCD) proposal on Gaining Public Acceptance (GPA) for huge dams. The Indian government had never formally alerted the lower riparian state of Bangladesh about the manufacture of the dam even though experts fright that the dam would have an unfavorable environmental impact on Bangladesh that supply to the same river basin.[2]

The ongoing building of the Tipaimukhi dam is a 390 meter long, 162 meter high stone core rock filled dam on the international river Barak at downstream of the convergence of Barak and Tuivei rivers near Tipaimukhi village stated at Manipur of India and close to the Bangladesh border which is supposed to generate an estimated 1,500 MW electric power.

In India, people too will have to go through a lot for this super project. For building the huge dam a total area of around 31000 hectares of land are required. Estimation by the authorities said that, the project will affect totally 300 sq/ km of land and 8 villages, and a total no of 1500 of the Indian tribe families in all. The project is going to immerse altogether 60 km’s of the National Highway, which is the only alternative lifeline to the three different points of intersection with two main bridges. The main sources of the people at that region are agriculture and horticulture. The construction of Tipaimukhi dam is going to destruct more than 70 villages that are going to be deprived from their source of livelihood and joy.[3]

The Bangladeshi expert’s are afraid of the one-sided Indian movement for creation of the massive dam and interrupting the water flows of the river Barak that will have long and unpleasant effects on the river system in the north-east side of Bangladesh which will apparently have negative impacts. The Timpaimukhi Dam will strangle up the two international rivers during the dry season and put down similar effect on Bangladesh as the Farakka Barrage has done earlier. In an experiment carried out by Bangladesh the Water Development Board (BWDB) noticed that obstruction to the natural flow of these two rivers will seriously hamper the hydrology & agriculture in result. In at least seven districts of the north east side in Bangladesh that produce bulk of the country‘s rice crop will be affected largely.[4]

The proposed Tipai mukhi Dam;

“The proposed Tipaimukhi dam will be constructed 500 m downstream from the convergence of the two rivers in the southwestern corner of Manipur. The location of the Dam is shown in the picture. The river Barak is the second largest drainage system in northeast India. It starts from the Lai-Lyai village in Senapati district of Manipur and meanders through the districts and also through the Jiribam subdivision of Manipur. The upper Barak catchments area extends over almost the entire north, north-western, western and southwestern portion of the state. The middle course lies in the plain areas of Cachar of Assam, while the lower, deltaic course is in Bangladesh.[5]

The Barak valley is the natural flooding plain of the Barak River. Floods are frequent in the Barak drainage system and part of the natural cycle. In a attempt to control frequent flooding in the lower Barak plain, several proposals to dam the Barak river have been raised within government and political circles since pre- independence days. In 1954, the Assam government requested the Central Water Commission (CWC) and the Planning Commission to identify a suitable location where the monsoon waters of the Barak could be impounded to form an artificial flooding zone.[6] Accordingly, the North- Eastern Council (NEC) entrusted the investigation work to the CWC. The CWC submitted their report in 1984, which proposed the construction of the Tipaimukhi high dam. However the report was turned down for the lack of proper environmental impact assessment of the submergible areas. Again, in 1995, at the request of the NEC, the Brahmaputra Board prepared the Detailed Project Report. There was no progress after this. Finally, in 1999, the Brahmaputra Board handed over the project to the Northeast Electric Power Corporation Limited (NEEPCO).

“On January 18, 2003 the project received the all important notification under section 29 of the Electricity Act. And at last Manmohan Singh, the Indian Prime Minister was scheduled to lay the foundation stone of the Tipaimukhi dam on November 23, 2004. It was known from the report reaching from across the border the Indian Prime Minister Manmohan Singh inaugurated the Tipaimukhi Dam recently on the river Barak in Manipur, about 25 km from the Zakiganjborder of Sylhet (Kibria and Laifungbam, 2003)”.[7]

The Impacts of Proposed Tipai Mukhi Dam

The proposed dam would be subject to severe hydrological impact due to the lack of water flow through the river system in Bangladesh. Water level in the hand tube wells, shallow tube wells and ponds would be lower than the present. The area of the northeastern part of the country would be affected with the construction of this dam respectively for the months of July-December and January- June. The net cropping area would be drainage congested and consequently the cultivable area will decrease within a few years. They also reported that the change in cropping areas for harvests and reduction in agricultural yields would be happened due to Tipaimukhi dam.98% of the respondents opined that natural fertility and productivity of agricultural lands will decrease due to less water flow. 80% of the respondent‘s opined that the yields of agricultural crops would be significantly reduced due to non-siltation of their lands after the construction of Tipaimukhi dam.[8]

There is a realization that hydroelectric power projects are not as clean as they were normally considered to be world over. They cause many adverse environmental and social impacts. A major conflict arises between development and biodiversity conservation when projects are located in the wilderness area because such projects impact upon prevailing patterns of allocation of land and resources to people and interface with various forestry and wildlife conservation objectives[9]. The plausible environmental impacts may be happened if the proposed dam is built are mentioned below:

1.    Environmental Impacts:

The change in the climate condition of the project site, the sitting of flowing waters leading to temperature stratification, the project activities leave the eco-impact features of instability in the form of lands lades and soil erosion, violent disturbance of pristine areas, variation in water table, instability of geo-physical landscapes, siltation and nutrients variation, decrease flow-rate of the river downstream- affects aquatic life and riparian communities, reduced capacity for self regeneration, reduced recharge of ground- water aquifers, enhanced pollution levels etc, submergence of land, air pollution, solid waste problem, enhance seismic activities due to pressure of water. The huge amount of water reservoir cause tremendous pressure to the earth region and the Tibetan plateau region, having hazard levels of the order of 0.25g with prominent highs of the order of 0.35-0.4g in the seismically active zones of the Burmese arc. North-eastern India and North-west Himalaya regions are included in the zone.[10]

2.     The biological impacts :

Loss of vegetable cover removal of the plants from the project site, reduction in bio-diversity, decrease in the faunal species: the disturbance caused in the nature, deforestation, threat to medicinal plants due to submergence, disturbance, de-stabilization, and degradation of land. Soil erosion and floods in and around the dam site has its indirect

influence on plant.[11]

3.    Impacts on Socio-economic environment:

i.                  Problems of host communities such compensation, employment, road construction, drinking water, a forestation to compensate the loss resulted due to the development works.

ii.                Public agitations: due to misunderstanding between the host communities and the managing authorities cause campaigns and strikes against the authorities to make agree the project proponents to meet their demands. All these reactions of resentment ultimately affect production rates and its growth, ultimately hampering the growth of the country.

iii.               Irrigation from hydro-power projects has numerous impacts, on forest and wildlife directly or indirectly, thus affecting the socio- economic condition of the host communities.

iv.              Multi-purpose projects often have only two components namely, irrigation and hydroelectric power. The integration of other purpose has not been a standard feature of project planning.

v.                Project-affected persons with the assistance of NGO have become more conscious of their rights both their fundamental rights as citizens and their traditional rights of use of rivers waters, forest produce and other natural resources.

vi.              The Tipaimukhi area is ecologically sensitive and topographically fragile. Some of these negative effects cannot be remedied or even mitigated; and in some causes efforts to mitigate or compensate for environmental impacts in turn will create further problems.[12]

Is the Tipai Mukhi Dam a Valid Construction under International Law?

Well this question became a big issue including both India and Bangladesh and the answer to this question was given by the Indian High Commissioner on June 21st.  Indian High Commissioner Pinak Ranjan Chakrabarty provoked a new debate by questioning the applicability of international law to the Tipaimukhi Dam issue. According to him, there is no any international law that could prevent India from constructing the Tipaimukhi Dam. His argument appears totally invalid in view of the status of the 1996 Ganges Water Treaty between Bangladesh and India as well the relevance of the applicable international customary laws.

“According to Article 38 of the Statute of the International Court of Justice, bilateral or multilateral treaties are the primary expression of international law. The 1996 thirty-year Ganges Water Sharing Treaty was signed by the heads of states of Bangladesh and India and thus, according to the 1969 Vienna Convention on The Law of Treaties, it has the full backing of international law. Both Bangladesh and India are bound to abide by this treaty until2026”.

“The 1996 treaty is the relevant law for assessing the validity of the proposed construction of Tipaimukhi or any other structure on rivers shared between Bangladesh and India. In addition to making provisions for the Ganges water-sharing, the treaty enshrines, in Article IX, a provision which runs as follows: “Guided by the principles of equity, fairness and no harm to either party both the governments agree to conclude water sharing Treaties/Agreements with regard to other common rivers.”[13]

“As the International Laws Commission’s Commentaries on the Draft of 1997 Watercourse Convention provides, pledges to apply the principle of equitable utilization and no-harm essentially presupposes obligations of conducting prior consultation and conclusion of agreement with co-basin states before undertaking any planned measures on a shared river like the Barak”.

“Therefore, construction of the Tipaimukhi Dam by India on the upstream of the Barak, which, after entering Bangladesh, continues to flow as Kushiara and Surma, will be illegal unless it is preceded by prior consensus with Bangladesh. As part of the Tipaimukhi project, if India builds a barrage over the Barak River, the resulting disastrous consequences on Bangladesh will be a graver violation of the “no harm” principle acknowledged by both countries in the Ganges treaty”.

“Pinak Ranjan, on the same occasion, also dismissed the applicability of the 1997 UN Watercourse Convention by saying that it has not yet entered into force. His statement is partially true; in the absence of required number of ratifications by states for this Convention, it is not yet binding as an “international treaty law.” However, there is every reason to argue that the Convention, being adopted by a vote of 103-3 in the UN General Assembly, is applicable as “evidence of international customary law” to Tipaimukhi or any such project on shared rivers”.

“This Convention was drafted by the International Law Commission, which was constituted under Article 13(1) of the United Nations Charter. The draft law produced by this Commission represents either existing or emerging rules of international law (ILC Statute, Article 15); various verdicts of the International Court of Justice have already expressed such a view (for example, the 1997 ICJ verdict regarding the River Danube dispute between Hungary and Slovakia)”.

“The 1997 Convention put heavy emphasis on comprehensive cooperation for equitable utilization of any trans-boundary watercourse, no-harm to all the co-basin states, and adequate protection of the watercourse itself. Therefore, a project with the magnitude of impact upon the environment that may result from the operation of the Tipaimukhi Dam cannot be constructed unilaterally by any basin state”.[14]

Violation of International Laws

The Tipaimukhi Dam project was entirely developed and approved without once informing the government of Bangladesh or involving its people in any meaningful exercise to assess the downstream impacts of the Dam. This is clearly a gross violation of co-riparian rights of Bangladesh.[15]

“Violation of UN Water Course Convention 1997: The 1997 UN Watercourse Convention is the only convention of a universal character on utilization of the international water courses. It was negotiated by almost every member of the international community including Bangladesh and India and was adopted by a very weighty majority of States. The convention sets forth the general principles and rules governing non-navigational uses of international watercourses in the absence of specific agreements among the States concerned and provides guidelines for the negotiation of future agreements”.[16]

India has even disregarded some major provisions of the 1997 UN Watercourse Convention (Islam, M.N; 1999) which are mentioned below:

“Equitable Utilization: Article 5(1) of the convention requires an international watercourse to be utilized in an “equitable and reasonable manner‘. The objectives are to attain”Optimal and sustainable utilization‘as well as to ensure”adequate protection of the watercourse‘. While achieving these objectives, according to Article 6(1), conservation protection, development and economy of use of the water resources have to be taken into account. The incorporation of conservation aspects enjoins the watercourse states with greater responsibility, which the negotiating states considered appropriate in view of the recent development of international environmental law”.[17]

“No – harm principle: While addressing the obligation of no harm and its relationship with equitable utilization, the 1997 Convention puts significant emphasis on relevant procedural duties. Article 7 of the Convention requires a watercourse state to take all appropriate measures to prevent causing of significant harm to other watercourse States. If significant harm, however, is caused, Article 7 requires the state causing such harm to give due regard to Article 5 and 6 and to consult the affected State in order to eliminate or mitigate such harm and to discuss the question of compensation in appropriate cases”.[18]

“Exchange of information: Article 9 provides for regular exchange of data and information on the condition of a watercourse. The purpose is to ensure that the watercourse states will have the facts necessary to enable them to comply with their obligation under Article 5, 6 and 7”.[19]

“Violation of World Bank Environmental Policy: Except in specified circumstances, the WB policy doesn‘t allow financing of a project on an international waterway until all the riparian are notified of the project and Have voiced no objection .But till now the people of lower riparian country like Bangladesh has the objection regarding the Tipaimukhi

Dam”.[20]

Conclusion:

Finally I would like to conclude that Bangladesh government should negotiate with India based on existing treaties and backed by hardcore research data at all possible levels. Any meaningful and effective policy and mechanism for GPA have to redefine the category of stakeholder to incorporate the idea that dams in one country could have impact in another country and stakeholders could be international. Access to information is essential for GPA and international stakeholder should be informed in all stages of construction of dams. Informed participation of international stakeholders, not only governments, but also, communities and citizens to be adversely affected should be made part of GPA mechanism. How do we ensure that is a question that still remains to be answered? One international mechanism that we can use is the UN Convention on the Law of Non-navigational Uses of International Watercourses. But, only 17 states ratified it, and no country with riparian advantages is among those 17 signatories. 35 countries have to ratify an international convention in order for it to be effective. So the UN convention is still not an obligatory convention. In the case of riparian tension and conflict over large dams on international rivers in South Asia, including India and Bangladesh, the failure of existing bilateral and regional system is evident[21]. We need to go further if we are to ensure sustainable development and meaningful peoples’ participation in development. May be we need to develop an international clearinghouse of information and dispute resolution on dams, probably UNEP and take a lead in this. Bangladesh should also advocate for and adopt ecological approach to all rivers in the country, which will buy support from regional and international community.

References & Bibliography :

Environmental and Social Impact Assessment,(1996) edited by Frank Vanclay and Daniel A. Bronstein, @ Publishers, Published by International Association for Impact Assessment, England.

Zakir kibria & Roy Laifungbam (2003) Tipaimukh Hydroelectric Multipurpose Project: Dam or Damage? Published by BanglaPraxis & Core. Dhaka, Bangladesh.

NEEPCO (2000), Detailed Project Report on Tipaimukh Hydroelectric (Multipurpose) Project, Shillong, India.

Asif. N. (1999), A paper on the 1997 UN Water Course Convention and its Relevance to River Basin Management in South Asia.

The New Age Weekend Magazine, October 2004; Article# 9 ILC Report Dhaka, Bangladesh.

United Nations (1997). UN press ILC Report.

Professional Development Program on Environmental Issues and Regulatory Measures in Bangladesh Organized by centre for Environmental Resource Management in BUET, Dhaka, Bangladesh.

Institute of Water Modelling (2005) and Asit K. Biswas (2001), for details of Brahmaputra-Barak-Meghna river basin and water flow in Surma and Kushiyara rivers.

World Commission on Dams (2000) Dams and Development: A New Framework for Decision-Making,

International Rivers Network (2002) Citizens’ Guide to the World Commission on Dams

The daily star weekend magazine June 2009.

Online References
www.banglapedia.com
www. wikipedia.com
www.mukto-mona.com
Stanford encyclopedia of Environment.
www.internationalwaterlaw.org

www.newagebd.com

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[1] Para 2 of the commentary to Article 9, 1994 ILC Report; p-250. —Manmohan sets Tipaimukh rolling November23“, The New Age, October   2004; Dhaka, Bangladesh.

[2] Institute of Water Modelling (2005) and Asit K. Biswas (2001), for details of Brahmaputra-Barak-Meghna river basin and water flow in Surma and Kushiyara rivers.

[3] Asit K. Biswas (2001), “Management of International Rivers: Opportunities and Constraints” in Asit K. Biswas and Juha I. Uitt, ed. Sustainable Development of the Ganges-Brahmaputra- Meghna basins, United Nations University Press.

[4] Roy Laifungbam (2003) “Dam or Damage? A Review of the Tipaimukh Hydroelectric Multipurpose Project” in Tipaimukh Hydroelectric Multipurpose Project: Dam or Damage? Ed. zakir kibria & Roy Laifungbam, Published by BanglaPraxis and CORE, Dhaka, Bangladesh.

[5] Zakir kibria & Roy Laifungbam (2003) Tipaimukh Hydroelectric Multipurpose Project: Dam or Damage? Published by BanglaPraxis & Core. Dhaka, Bangladesh.

[6] World Commission on Dams (2000) Dams and Development: A New Framework for Decision-Making,

International Rivers Network (2002) Citizens’ Guide to the World Commission on Dams,

[7] Para 2 of the commentary to Article 9, 1994 ILC Report; p-250. —Manmohan sets Tipaimukh rolling November23“, The New Age,October   2004; Dhaka, Bangladesh.

[8] Professional Development Program on Environmental Issues and Regulatory Measures in Bangladesh.

[9] Organized by centre for Environmental Resource Management in BUET, Dhaka, Bangladesh, 21-22, May, 2001.

[10] Environmental and Social Impact Assessment,(1996) edited by Frank Vanclay and Daniel A. Bronstein, @ Publishers, Published by International Association for Impact Assessment, England.

[11] Environmental and Social Impact Assessment,(1996) edited by Frank Vanclay and Daniel A. Bronstein, @ Publishers, Published by International Association for Impact Assessment, England.

[12] Environmental and Social Impact Assessment,(1996) edited by Frank Vanclay and Daniel A. Bronstein, @ Publishers, Published by International Association for Impact Assessment, England.

[13] “15th june2009 the daily star weekend magazine article#1”

[14] “15th june2009 the daily star weekend magazine article#1”

[15] Asiatic Society of Bangladesh (2002) for more info on Joint Rivers Commission (JRC).

[16] United Nations (1997). UN press Release, GA/9248).

[17] “United Nations (1997). UN press article#5&6.”

[18]“ United Nations (1997). UN press article#7”.

[19] United Nations (1997). UN press(ILC Report, 1994; p-250).

[20] Asif. N. (1999), A paper on the 1997 UN Water Course Convention and its Relevance to River Basin Management in South Asia

[21] Asit K. Biswas and Juha I. Uitto (2001), article# 5