Context: In the wake of increased instances of floods across the world, this article talks about the need for all riparian states to come together and address the issue.

Background

• In recent times there has been an increase in the magnitude, frequency and intensity of floods across the globe.

• Due to the recent floods, about one-third of Pakistan is witnessing devastation and is suffering from the spread of infectious diseases and a severe shortage of potable water.

• In June 2022, the state of Assam saw one of the worst floods in its history as it affected about 30 districts of the state.

• Additionally, some parts of Assam and Bihar experience recurring floods which have become a roadblock to undertaking measures which are aimed at poverty alleviation and achieving Millennium Development Goals.

• Flooding is considered to be a natural phenomenon across the world that cannot be prevented completely. However, the impact of floods is aggravated by the lack of transparency in the sharing of hydrological information between the riparian states.

• Further, there is also a lack of sharing of information about the activities undertaken by one riparian state that will have transboundary effects on other riparian states.

Current international laws

• As per conventional international law, “no state has to use its territory in a manner that causes harm to another state while using a shared natural resource”.

• This mandates a binding obligation on all the states to not release water in such a way that it causes flooding in other states which share common river water. 

• This obligation acts as a foundation for other procedural conventions that regulate the management of floods such as notification of planned measures, the exchange of crucial information, and also public participation.

• The International Court of Justice (ICJ), in the Pulp Mills on the River Uruguay case, 2010 (Argentina vs Uruguay) upheld that undertaking a Transboundary Environmental Impact Assessment (TEIA) of projects on the shared watercourse is part of customary international law. 

• The ICJ also held that the acting state must inform the affected parties about the outcomes of the TEIA conducted such that all parties have participated in the process of ensuring that the assessment is complete, and the project can be considered with full knowledge.

Floods along the Brahmaputra and its associated concerns

• In the case of the Brahmaputra river, China acts as an upper riparian state and countries like India and Bangladesh act as lower riparian states.

• China is considered to be enjoying a certain degree of leverage as compared to lower riparian states.

• During the monsoon season, the issue of flooding has been a recurrent issue in the past several years in Assam and other Northeastern parts of India. 

• Lower riparian states like India and Bangladesh are facing this issue due to the large-scale construction of dams by upper riparian state China. 

• The excessive release of water from the dams of China which are against the conventional international norms has the potential to increase the impact of flooding in parts of India in the future. 

• The major concern of India is that there is no comprehensive sub-basin or all basin-level regulation or law to tackle the issue of water management of Brahmaputra. 

• Further, both India and China are not part of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC) 1997 and the United Nations Economic Commission for Europe (UNECE) on the Protection and Use of Transboundary Watercourses and International Lakes 1992 which is also known as Water Convention.

• Article 27 of UNWC states that “Watercourse States shall, individually and, jointly, take all appropriate measures to prevent or mitigate conditions that may be harmful to other watercourse States, whether resulting from natural causes or human conduct, such as floods or ice conditions, water-borne diseases, siltation, erosion, salt-water intrusion, drought or desertification.”

• As there is no regulation or law, India totally depends on the memorandum of understanding (MoU) which it signed with China in 2013 with an aim to share hydrological information during the flooding season i.e. June to September. 

• However, this MoU does not allow India access to urbanisation and deforestation measures undertaken on the Chinese side of the river basin. 

• This makes it important for India to become a part of UNWC or the Water Convention which can help India to negotiate a bilateral treaty on the Brahmaputra and at the same time, it is also crucial for India to make sure that there is no obligation on the insertion of a dispute settlement mechanism provision.

Case of flooding between India and Nepal 

• The issue of flooding is also a recurring problem in the Koshi and Gandak river basins that are shared by India and Nepal. 

• The frequency, magnitude and intensity of floods have increased in the recent past due to increased seasonal precipitation and the melting of glaciers due to global warming and other human-induced factors like the changes in land use and land cover patterns in the river basins of Nepal (Terai) and Bihar. 

• It is essential for both the riparian states to realise that the river basins are single entities, which helps in enabling a holistic approach to improve flood risk management. 

• In this context, the India-Nepal Koshi agreement 1954 which was revised in 1966 aimed at mitigating the impact of floods and the treaty-based joint bodies have played a key role in refining the early warning systems for flood forecasting.

• However, India still considers the information on transboundary rivers as classified information, which has become a key impediment in enhancing cross-border flood warning systems.

Road Ahead

• India can become a party either to UNWC or water convention. It could lay the groundwork for a bilateral treaty on Brahmaputra with China. India should not insist on insertion of dispute settlement mechanism provisions.

• With Nepal, it is important that the two neighbors view the river basins as single entities. It will help in facilitating an integrated approach for improved basin and flood risk management.

Conclusion

• Against the backdrop of increased instances of cataclysmic floods across the world due to climate change and human-induced factors it has become extremely important for all the riparian states to come together and comply with all the procedural norms in accordance with the no-harm rule to mitigate the impact of floods.