By A.B. Thapa
Very recently our government is seen trying to soften the legal implications of the Clause 126 of the constitution that have proven to be hard nut to crack for many multinational companies who had been trying their best to make fortune by trading in our water resources with India. Government has called upon even the outsiders to send their views on this matter. However, it can hardly be denied that we should be extremely careful in our attempts to find solutions to water resources related problems that concern big private hydropower developers or else we would be playing into the hands of some of those multinationals like the ENRON who are able to evade the stringent regulatory laws and cause worldwide chaos undermining the prestige of the Worldís most powerful country, the USA.
The Clause 126 of the Constitution has been hailed by all quarters in Nepal as the most important provision that is helping to safeguard the vital national interest of our country. In the past, the misinterpretation of the Clause 126 of our Constitution had placed the Government in a most embarrassing position. Our government was virtually forced to annul the bilateral agreement with the Government of India about the Tanakpur barrage after the Supreme Court granted injunction against the Government's interpretation of the Clause 126 of the Constitution.
It is a well known fact to everybody that the total benefit accruable from each of the large storage projects such as the Kosi, Karnali, West Seti, Pancheshwor etc is far in excess of the need of our country. Whenever we embark on implementation of any of these projects, the sharing of benefits automatically takes place. It is completely a different matter whether such sharing of benefits takes place deliberately or it happens unintentionally. We already have bitter past experience of Tanakpur barrage agreement. Government mistake was not condoned by the Supreme Court even though it was not a deliberate action. Now many people who are highly critical of governmentís laisser-faire policy are even seen bringing accusation against the government of deliberately trying to circumvent the Clause 126 of the Constitution by planting a middleman (private company) between the two governments. There is a need to seek the opinion of legal experts on this matter. It is very important to find out whether such policy can be considered acceptable or it could even be a treason apart from being in breach of the Clause 126 of the Constitution. It is quite surprising that there is not any mention in the water resources strategy report, which has been recently prepared, about the Clause 126 of the constitution that serves as the mandatory guidelines for the development of large water resources projects.
Why Are We Frightened By Clause 126?
The Clause 126 of the Constitution requires that there should be broad consensus in the country on the issues relating to our countryís water resources development that also involves our neighbouring country. It hardly needs to be explained that such need to seek national consensus helps to insure that the implementation of any particular project is in the interest of our country. Ultimately such provision in the Constitution compels us to conduct extensive studies to justify the decision to implement any big water resources project. This consideration alone could be a strong justification in having the Clause 126 in the Constitution in its present form and thus any attempt to temper it with various types of explanations or interpretations is indeed uncalled for. We all have afresh in our mind the sad incidence that took place recently in our parliament. At that time the Deputy. Prime Minister was prevented by angry parliamentarians from making speech to justify the decision to defer the award of the giant Karnali project to a private developer until more exploratory studies are made. Many parliamentarians were adamant to bring pressure to bear on the government to award the giant Karnali project to the multinational company ENRON virtually blindfolded regardless of consequences.. It is not the only event in the past when we had been extremely reckless in handling our major water resources. We had in the past almost forfeited our right to ownership of our main rivers. It is explained below how it happened.
The Kosi & Gandak Treaties of 1950s
After the introduction of democracy in 1951 Nepal had signed two treaties with India on water resources in 1950s. They are the Kosi Treaty signed in 1954 and the Gandak Treaty signed in 1959. Soon after their signing Nepal realized that both these treaties were detrimental to Nepal's interest. Particularly the Gandak Treaty was the most harmful. The Article 9 of the Gandak Treaty that curtailed Nepal's water right is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purpose from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time and His Majesty's Government agrees that they shall not exercise this right in such manner as is likely, in the opinion of the parties hereto, prejudicially to affect the water requirements of the Project( it is the Gandak Irrigation Project) as set out in the schedule annexed hereto."
The monthly water requirements provided in the schedule were either very close or exceeded the river flows baring few months of the monsoon season. This treaty would have virtually ended the future prospect for irrigation development in the Gandak Basin within Nepalese territory.
Revised Gandak & Kosi Treaties
The Kosi and Gandak Treaties were binding upon Nepal. The Vienna Convention on the Law of Treaties states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. It requires the consent of both the signatories for changes and amendments unless there is a special provision for it in the treaty. Nepal succeeded in convincing India that both the treaties should be amended to protect Nepal's vital interest. Nepal should be grateful to India for their consent to revise those treaties.
The Gandak Treaty was revised on 30th April, 1964. The Article 9 of the revised treaty is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purposes from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time in the valley. For transvalley uses of Gandak waters separate agreements between His Majesty's Government and the Government of India will be entered into for the uses of water in the months of February to April."
The revised treaty is a big improvement over the previous one. This treaty has reestablished Nepal's full right to draw water for irrigation or any other purposes in the large valleys which are many in number in the Gandak basin. Similarly, the three Terai districts on the west of the Gandak river can also be brought under year round irrigation even without transvalley conveyance system. Thus a new agreement with India might not be required in future.
The Kosi Treaty was revised on 19th December, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. The Article 4 ( i ) of the Treaty related with the water rights has been presented below:
"HMG shall have every right to withdraw for irrigation and for any other purpose in Nepal water from the Kosi river and from the Sun-Kosi river or within the Kosi basin from any other tributaries of the Kosi river as may be required from time to time. The Union ( it indicates India ) shall have the right to regulate all the balance of supplies in the Kosi river at the barrage site thus available from time to time and to generate power in the Eastern Canal."
Proposed Interpretation of Clause 126
It is stated in our Constitution that the strict provision of ratification would apply to sharing of natural resources that would have long lasting, extensive and serious impact. Government is now proposing to reinterpretate the meaning of the Clause 126 in its own way so that the strict procedure of ratification could be waived in all cases barring few projects. Ministry of Water Resources is proposing to interpretatre that the strict provision would apply only in case if the project exceeds the following limits.
The installed capacity of the power station that exceeds 1000 MW. however, it has not been explained at which capacity factor. The number of people being displaced exceeding 10,000.etc.
We Should Be Serious
It might require a great deal of consultations to make sure whether Water Resources Ministry is the appropriate institution to be entrusted the task of interpreting the Constitution of the country. However, it can be said that the requirement to apply the strict ratification provision would be automatically waived for almost all the big water resources projects in our country perhaps with the exception of the Kosi, Karnali and Pancheshwor projects if the Clause 126 of the Constitution is interpretated as proposed by the Government We should take this issue very seriously. It would be our biggest blunder if we tried to take hasty decision.. Even the medium sized water resources projects could have long lasting, extensive and serious impact in relationship between the two neighbouring countries. Let us take few cases. The Sutlez is a very small river by comparison with the rivers like the Kosi. Average annual flow of the Kosi is about 50 billion cubic meters whereas such flow of the Sutlez is only about 20 billion cubic meters. The contentious Upper Bari Doab Canal drawing water from the Sutlez river had brought India and Pakistan to the brink of war in 1940s. Similarly the ratification of the Columbia river projects treaty between the USA and Canada dragged on for several years despite the facts that those projects involved a total storage volume of mere 18 billion cubic meters compared to 39 billion cubic meters in case of the Karnali, and moreover the US Presidents John Kennedy and Lyndon Johnson from the US side and the Prime Minister L. Pearson from the Canadian side were themselves directly involved in finalization of the Treaty. So we should not try to find ways to enter into deals with our neighbouring countries without broad national consensus. It would not be difficult to come to such national consensus if the project is in the interest of the country. Moreover the Clause 126 is helping to protect us from being played into the hands of ruthless multinationals.