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Flawed or flowing water
DEC 03 - The Fifth Indo-Nepal Joint Committee on Water Resources (JCWR) met for three-days in Pokhara over the weekend. On the agenda was the constitution of the Pancheshwor Development Authority (PDA). After careful deliberation, both sides concluded the terms of reference (TOR) of the PDA. So are these talks “thoughtless” as one columnist recently called them?
It is true that considerable time has elapsed and much water has flown in the creation of the PDA. But given the January 2010 deadline that has been set by the secretaries who led the talks for the formation of the PDA, there is still hope on this front. As agreed by both sides, the PDA will have two bodies, a governing and an executive. The governing body and the executive committee will have an equal number of office bearers and members from the Nepali and Indian sides. So why is “Chintan” so pessimistic about the future of the Pancheshwor dam?
He opines that the talks would not cover several issues of concern to Nepal. First, he claims that there would be no discussion on the “unequal” treaties governing water sharing between India and Nepal. By their very nature, these talks are not meant to be about that. These are political matters to be settled by the governments/heads of state. Secondly, his point about lower riparian rights is taken, and it is something that should be addressed. But that again is not an issue for discussion in the present round of talks. And finally, there is the issue of displacement of huge populations in the Tarai. Both sides are conscious of these difficulties and are focusing on minimal displacement.
The Pancheshwor dam on the Sharda River has issues of cost, the sharing of the waters, the price at which the electricity generated will be provided and, above all, the rights of the state where the waters originate attached to it. These issues have arisen because of the differing interpretations of the 1996 Mahakali Treaty by Nepal and India. Some specific Nepali concerns arise from its interpretation of the 1996 treaty that states the “Mahakali is a boundary river on major stretches”. When the treaty was ratified by Nepal’s Parliament, it came with the rider that this statement “means [the] Mahakali is basically a border river”. By this logic, the entire river belongs to Nepal. While there are historical precedents available, they do not necessarily add up to the conclusion that “Nepal’s share of water only accounts for some 4 percent after deducting the amount of water already claimed by India from the Sarada Barrage.” This seems to be a misplaced attempt to pre-empt the working of an existing agreement.
The four sankalpa prastav passed by Nepal’s Parliament are determination of the status of the Mahakali River, equal sharing of the Mahakali waters, energy export pricing principle and formation of the Mahakali River Commission. These are matters to be raised by Nepal but sorted out internally, not matters for bilateral discussion. However, it is to be noted that the 1996 Mahakali Treaty does recognise, at least in principle, that “each country owns 50 percent of water”, citing (1) The wording of the preamble, i.e., equal partnership to define their obligations and corresponding rights and duties; (2) Article 3 on the Pancheshwor project, i.e., the parties will have equal entitlement to utilisation of the water of the Mahakali; (3) Article 5, i.e., the water requirement of Nepal shall be given prime consideration in the utilisation of the waters of the Mahakali; (4) Cost sharing formula of the project. This being the case, it is a matter of discussion as to how best one can keep Nepal’s interests in mind while finalising the agreement in practice.
Does Article 3 of the treaty which provides for “equal entitlement in the utilisation of the waters of the Mahakali River without prejudice to their respective existing consumptive uses of the waters of the Mahakali River” prejudice the case of Nepal? It is pointless to argue that such an arrangement benefits only India because it does not explicitly refer to the water already used in the Sarada Barrage. After all, the treaty itself makes it clear that the arrangement is “without prejudice” to the existing consumptive use of the waters. What may be possible is to ensure implementation of this treaty based on an independent analysis of the actual sharing of the waters once the project is in place. Yes, this definitely calls for a detailed project report while the PDA prepares for the construction work.
The issue is that Nepal has many more concerns, but so does India. The substantive issue is both sides agreeing to find an early solution to the impasse. It should be possible to find a common ground also by getting an independent expert group to interpret the Mahakali Treaty. Addressing bilateral issues of concern requires some independent inputs. But these should not be seen in terms of “injustice” to one country or the other. These are long-term issues of mutual benefit that will in some ways seem skewed.
To take one example on the Pancheshwor project. There are differences over the cost of the power generated from the Pancheshwor project. The answer lies in finding a middle path. As one authority correctly states, “The price of power should be based on economic considerations, thus it means to be attractive enough to Nepal to undertake the big project and, simultaneously, it should be affordable enough to India to warrant purchase from this source.” These and other matters are easily resolvable if there is political will.
With hydro potential being available in plenty, there is no reason for Kathmandu to baulk at implementing projects like Pancheshwor. The first priority is to complete a detailed project report. It should be possible to set up an independent group of experts to examine the matter. Let’s face it, bureaucratic meetings are to discuss “business as usual” stuff and not to deal with the fundamentals. Political fundamentals will decide the final sharing of the waters. Let us not be swayed by the concept of “flawed waters”.
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