Flood in Bangladesh: An Outcome of Trans-boundary Harm?

Every Monsoon, the dam that divides the river Ganges between India and Bangladesh becomes the reason of a mass suffering. We brace ourselves for a massive flood as the water enters Bangladesh through the Farakka Barrage. Crops are destroyed, lives are lost causing a huge impact on Bangladesh’s economy. This has been in practice for quite a while now and little has been done to solve it.

Water has always been used as a medium of control by powerful countries over weaker ones. The less powerful countries have little or no choice but to comply and negotiate if a powerful one uses its water as a manipulative tool. This is exactly what has been going on between India and Bangladesh over its shared waters.

The sharing of the trans-boundary water accelerated political tension over the years. Hence, dispute related to it is not new in this part of the world. With 53 trans-boundary rivers shared by the two countries, tension related to sharing of water has been prevalent since the last 50 years.

The Treaty of Friendship, Cooperation and Peace with India in 1972 contributed to the construction of the Farakka Barrage with a view to cooperate in the field of flood management in both India and Bangladesh. A series of bilateral agreements followed and finally in 1996 the Ganges Water Sharing Treaty was signed. It was largely expected that the problems will finally be settled.

The 1996 Treaty appeared promising, incorporating many International Environmental law principles like ‘mutual accomodation’ and ‘optimum utilization’. It also talked about flood management like its predecessor. Article II (iii) of the treaty talks about the principles of equity, fairness and No-Harm which is also in line with the International Environmental Law. However critics found the treaty faulty as it lacks a guarantee clause and arbitration clause as means of dispute resolution. Doubts have arisen on the Treaty’s efficiency to tackle emergency situations even after its ambitious provisions.

The only remaining Treaty governing the water issue between the two countries now lacks proper enforcement mechanism. Surprisingly, none of the 5 major Environmental Instruments in Bangladesh talks about Trans-boundary harm by water. However at a global level, the rights therein may be extracted. Let’s look at the established International laws that would acknowledge the opening of Farakka to be causing a ‘Trans-boundary’ harm to Bangladesh.

International Environmental Law is comprised of a set of principles from customary International law. Among the few, the two important principles relevant to our concern is ‘Equitable and Reasonable Utilisation’ and the ‘No-Harm principle’. Historically, these doctrines emerged to urge the countries that environment must be protected even if it is a part of another territory.

Equitable and Reasonable Utilisation:
For understanding this theory, it must be clarified what ‘equity’ means in International law. According to the International Court of Justice in the Tunisia-Libya Continental Shelf Case, “Equity as a legal concept is a direct emanation of the idea of justice.” Therefore in our context, an equitable utilisation would mean the responsibility of a state in using of a shared resource with another state, justly.

No-Harm Principle:
This theory suggests every State is duty-bound to prevent, reduce and control the risk of environmental harm to other states. The principle according to which states must ensure that activities within their jurisdiction do not cause significant cross-boundary environmental damage (“no-harm” principle) constitutes the cornerstone of international environmental law. A classic example of this doctrine can be seen in the Trail Smelter Case (United States v. Canada. The no-harm rule has been incorporated in various law and policy documents. They are:

Principle 21 of the 1972 Stockholm Declaration provides that: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”

Article 194 paragraph 2 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) states: “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment,…”

Similarly, the 1992 Rio Declaration on Environment and Development (Principle 2), the Convention on Biological Diversity (Article 3) and the UNFCCC (in recital 8 of its preamble) all talks about the No-Harm Principle.

These customary International rules have made its way into many International Treaties and Conventions regarding shared waters. Some of them have been listed below:

The Madrid Declaration on the International Regulation regarding the Use of International Watercourses for Purposes other than Navigation 1911 talks about any river or stream between two states. According to Article 1, “….neither State may, on its own territory, utilize or allow the utilization of the water in such a way as to seriously interfere with its utilization by the other State or by individuals, corporations, etc. thereof.”

Article 3 of the Articles on Flood Control, New York, 1972, states that co-operation with respect to flood control may, by agreement between basin States, include execution of flood control measures, among others.

The Helsinki Rules on the Uses of the Waters of International Rivers 1966 of the International Law Association talks about the principle of equitable utilisation of the waters of an International drainage basin. Article X (1) (b) states that “basin states should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent that no substantial damage is caused in the territory of a co-basin State.”

The Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes 1997 or the UN Watercourses Convention talks about the scope of Equitable Utilisation and the No-Harm principle. Article 7 of the Convention states that “in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse states.” This is a due diligence duty of prevention, rather than an absolute prohibition on trans-boundary harm.”

The Articles on Responsibility of States for Internationally Wrongful Acts 2001 talks about the international responsibility of a state for doing a wrongful act. Intentional flooding or not using trans-boundary waters reasonably may be considered to be a wrongful act.

The Berlin Rules on Water Resources 2004 supersedes International Law Association’s previous water laws, the Helsinki Rules 1966. The new law has been revised to include statements advocating public participation, environmental sustainability, equitable and reasonable water utilisation, and causing no significant harm.

Although, neither India nor Bangladesh are signatories of any of the conventions mentioned above, they are parties to the Stockholm Declaration of 1972, the Rio Declaration 1992, Convention on Biological Diversity (CBD) and the UNCLOS 1982.

Currently, there is no binding international agreement on trans-boundary water in force. But since both the countries are parties to the conventions that talk about the No Harm Principle, there is still a ray of hope for Bangladesh. Under these instruments, the flooding of Bangladesh as a trans-boundary harm is highly likely to be recognised at an International level.