India must seek a water treaty with China, brace for hard bargain

 The recent military disengagement in Ladakh raised hope for a thaw in Sino-Indian relations. However, disregarding the downstream riparian rights, Beijing Mandarins have provoked hostility on another front, by unilaterally deciding to build a mega hydroelectric project on the lower reaches of Tibet’s longest river Yarlung Tsangpo, which flows as Siang and Brahmaputra into Arunachal Pradesh and Assam in northeastern India respectively. Expectedly, New Delhi has expressed concerns over the proposed project, which would have three times more installed capacity than China’s own Three Gorges Dam, hitherto the world’s largest hydroelectric project.

The rivers are natural but mysterious. If each river is sue generis, Brahmaputra is no exception. Chandan Mahanta of IIT (2006) says the Brahmaputra is “perhaps the most complex of all”. Downstream India and Bangladesh face challenges that are probably absent in the Danube, Nile or Tigris.

The Brahmaputra basin is perennial and sourced from monsoons and melting snow. A 2014 study shows that the average yield of the river is about 537.24 BCM. The flow is 25 times more than Cauvery. Nonetheless, the utilizable yield is about 24 BCM, and, out of this, a crucial 20% is from China in the non-monsoon period.  

How will China’s mega hydroelectric project hurt India? The bone of contentions is the transboundary harm to the acquired historic rights in non-monsoon or summer flows; harm to the fragile ecology of the Himalayas, irreparable loss from flooding if the dam breaks due to earthquakes; and, of course, the threat arising out of likely weaponization during the time of hostility.

The race for hydropower generation to achieve decarbonization under the Paris Climate Agreement is apparent in the plans of Asian giants. China has planned to generate 60,000 MW by building the mega-dam. India also has plans to tap 57,000 MW hydropower potential in Arunachal Pradesh with several projects to exploit historic rights in Brahmaputra and reduce its dependence on fossil fuel by increasing its hydropower share from 12% to 50% to comply with commitments made at COP26 in Glasgow in 2022.  

The threat of mega-dam to geopolitical threat. India fears that the Chinese military may weaponize the mega-dam at the border by unleashing flash floods. If this happens, Assam will be in the water!   

How can India protect its rights? India and China are not parties to the UN Convention on the Law of the Non-Navigational Uses of International Water Courses (1997). However, there is no legal vacuum. The customary rules of international law do apply. The equitable utilization doctrine has evolved as a customary rule of international law after rejecting the Harmon doctrine, which gave unlimited rights to the upstream State, and the natural flow theory, which benefitted the downstream State. The Helsinki Rules of 1966 and Berlin Rules of 2004 codify the law by balancing equity and protection of historic rights. However, the challenge comes in the application of rules to complex techno-legal issues.

While exercising the riparian right to use water in its territory, the States are under an obligation not to cause significant harm as pronounced by the International Court of Justice in the Gabcikovo case (1997) and the Pulp Mill case (2010).  As a precautionary step, China is under a threshold obligation to conduct a transboundary environment impact assessment before beginning the negotiations. 

India cannot invoke the adjudicatory process directly. The compulsory adjudication is still alien to international law. If the States consent, the world court may adjudicate as happened in the Gabcikovo case (1997).  However, a treaty is the preferred approach in water conflicts rather than adjudication by applying hard and fast rules.  

If China goes ahead disregarding international norms, India may have to consider countering its communist neighbour with a physical solution by erecting a dam downstream to absorb floods and provide non-monsoon releases. India must brace for hard bargain with China.

(The writer is a senior advocate designated by the Supreme Court of India, with expertise on transboundary water disputes)