Indo-Nepali Water Relations Meg Patterson International Water Law April 7, 2009

The Problem - Glacial Melt Adverse effects caused by glacial melt: –Change in water flows (initially greater flows, eventually reduced flows, particularly in the dry season) loss of glacier meltwater would reduce July-September flows by 2/3, causing water shortages for 500 million people and 37% of India’s irrigated land –GLOFs (glacial lake outburst floods) E.g., Dig Tsho, 1985 –Economic costs Nepal - loss of export earnings India - agriculture, industry, domestic –Security Concerns –Religion

Background - Geography/Hydrology Ganges Basin - Glaciers –3,252 glaciers in Nepal with a stored ice reserve of 481 cu. km. –1,488 glaciers in India in the Ganges-Brahmaputra Basin, with a stored ice reserve of 117 cu. km. Ganges Basin - water flow –Nepal occupies just 13% of total drainage basin, but contributes 45% of its average annual flow –During the dry season, Nepal’s contribution is 70%

Ganges Basin

Background - Political/Legal Heavily influenced by geopolitics –Uneven power distribution –Lack of trust Nepal’s view: –Have been treated unfairly in past agreements; India has taken advantage of Nepali generosity –India draining watershed for its own benefit –Indian water bureaucracy secretive India’s view: –India has right to use water based on its need –India contributes a lot to Nepal’s economy in other sectors –Instability of Nepali government –Nepal suffering from Napoleon complex, imagining conspiracy theories

Background - Legal 1996 Mahakali Treaty –Water distribution, power generation, energy sharing –Joint development for “maximum total net benefit” –“equal entitlement” in use of water from Mahakali –No harm, minimum flows –Water requirements of Nepal to be given prime consideration 1997 UN Convention –Neither country has ratified –India abstained from voting on the draft language; Nepal voted in favor

Background - Legal Mahakali Treaty –Limited to one river, n/a to tributaries –Defines Nepal’s existing consumptive uses but not India’s –Makes no provision for reduced flows –General principles designed for particular project - and still do not have detailed project report for that project –Limited mention of pollution UN Convention –Arguably not customary law –Even if it is, does not cover the issue of rapidly changing river volumes

Legal Issues Can Nepal store excess glacial melt, with no obligation to downstream states? When flows are reduced, how are the consumptive uses of each state affected? –Ratable reduction –Historical Use gets priority (essentially prior appropriation) –Current Need (based on population, uses)

Proposal Create basin-wide approach –Incorporate principles from UN Convention –Build on Mahakali Treaty Include Bangladesh –All countries can benefit from a water storage scheme Water as common good rather than territorial right