Law Review
Feni river dispute under international law
M Inamul Haque
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Map 1: Location of the Feni River Origin.(From
Perry-Castañeda Maps) |
The Feni River originates from the western boundary of a disputed land of India & Bangladesh, along the Khagrachhari District. The Asalong River originates from inside Bangladesh, to reach and follow the eastern boundary of this land. As they join together to the south, it becomes the international border for about 80 kilometers towards south and southwest. On its way, many small rivers namely Tailalong, Gumti, Ajodhya, Ajungrai, Naloa, Kaila etc., from Bangladesh, and Sabrum, Ludhua, Beloga etc., from India join to this river. The major rivers join are the Pilak from Bangladesh and the Manu from India. The Feni River enters fully into Bangladesh at Amlighat of Feni District. Towards the sea, the Muhuri River then the Selonia River falls on the Feni River on its right bank. The Feni regulator constructed on this river near Sonagazi, checks the tidal surge & salinity from the seaside, and creates a sweet water reservoir in its countryside.
The Feni River has come to limelight recently after 37th India Bangladesh Joint Rivers Commission meeting held in New Delhi from 17-20 March 2010. Bangladesh agreed to allow withdrawal of 1.82 cumec (60 cusec) of water by India for drinking purposes. This matter was to be discussed again in the 38th JRC meeting in Dhaka on the 5th of September 2011 for signing an agreement. The meeting was not held.
The question of sharing of the waters of the Feni River was discussed way back in 1958 between India and Pakistan. Reports from Pakistan say, “India is trying to withdraw water from Feni River for irrigation projects in exchange of resolving erosion problem in Bangladesh side of this bordering river.” According to statement on sharing of river waters with Bangladesh, released by India, “Feni River has been added to its mandate in the 36th JRC meeting. A decision was taken in the meeting that the Ministers of Water Resources of both the countries would visit the sites where developmental works have been held up. This Joint Inspection of various locations of developmental and flood protection works on common rivers was held from September 14-21, 2006.” (Wikipedia)
The Feni River has about 2000 sq km (200,000 hectares) catchment area beyond Amlighat, of which 800 sq km is in India (Tripura) and 1200 sq km is in Bangladesh. The Muhuri has about 800 sq km catchment area in India (Tripura) before it enters into Bangladesh, near Belonia. The Selonia River has origin in India having catchment of about 250 sq km in Tripura. India being militarily strong and having strong border surveillance, withdraws water from the Feni River by pumps for irrigation and water supply. Bangladesh on the other hand though being a co-riparian nation is being intimidated and prevented by the Indian Border Security Forces to do so. The recent move to share the Feni Water was based on its lowest flow of 120 cusec at 50-50 basis. Question arises, how much justified is the solution? How much practical is the formula when water is lifted at different points? The Feni River has a large irrigation project in Feni & Chittagong districts with command area 40,080 hectares. This project is being affected by the withdrawals in India.
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Map 2: Feni & Muhuri River basins. (Not to scale) |
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For sharing of common rivers of international character the International Law Association at the fifty-second conference held at Helsinki, in August 1966, adopted the Committee Report on the Waters Uses in the International Rivers. This report is called the Helsinki Rules. In its Article II it defines, 'An international drainage basin is a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.' In its article IV it says, 'Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.' Article V sets out 11 relevant factors which are to be considered but are not limited to, to mean reasonable and equitable sharing. In case of Feni River the common terminus is Amlighat. For equitable share of the river it should be according to the amount of water each watercourse state generates through rainfall over its catchment.
The International Law Commission of UN drafted later a treaty on Non-navigational uses of International Watercourses. The UN General Assembly on May 21, 1997, adopted this as a convention (Neither yet ratified by India nor Bangladesh. 18 countries ratified, required 35 countries to enter force). According to this convention, watercourse defined as 'a system of surface water and groundwater constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus' [Art. 2a]. This convention does not affect the rights and obligation of the parties to it to under pre-existing agreements [Art. 3(1)]. The convention sets out some norms on agreements between watercourse states [Art. 3(3)], and those based on negotiating in good faith [Art. 3(5)], and no party can adversely affect uses of other state without the consent of that state [Art 3(4)]. The convention allows the watercourse states to utilize an international watercourse in an equitable and reasonable manner in their respective territories [Art. 5]. It appears that, both the Helsinki Rules and the Watercourse Convention have similar views on sharing.
The watercourse convention 1997 Article 6 (1) sets out relevant factors to equitable and reasonable utilization of the international watercourse. These are: a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; b) The social and economic needs of the watercourse States concerned; c) The population dependent on the watercourse in each watercourse State; d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States; e) Existing and potential uses of the watercourse; f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; g) The availability of alternatives, of comparable value, to a particular planned or existing use.
But can we see the waters of Feni or Teesta or any other trans-boundary rivers are being shared by the watercourse states according to the Helsinki Rules or Watercourse Convention? No; not at all. We see India is diverting the Teesta waters to other basins in the name of River Interlink Projects. This is clear violation to the rules or convention of watersheds having common terminus. For equitable sharing, the convention as per Article 6 (3) says, the weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. Now the question is; does the 50-50 sharing of Feni water follow this guideline?
Bangladesh though having larger geographical areas is offered 50-50 sharing of the Feni waters, which is not acceptable. The Feni River has a historical annual and lean period flow. Any withdrawal from this basin shall harm the ecology and economy downward. The watercourse convention Article 7 puts obligation that 'Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.' Article 8 says, 'Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.'
Prior to asking compensation on possible harms, we suggest the Bangladesh authority to negotiate with India with all relevant factors, and to cite all international conventions. In any case, Bangladesh should not allow transfer of water from Feni or Teesta or any trans-boundary river, in the name of withdrawal in India. Bangladesh should rather persue India to ratify the Watercourse Convention of 1997 together, in the interest of people of both the countries.
The writer is Chairman, Institute of Water & Environment, and Dhaka.
