Delay and drift on the Mahakali

Should lndia and Nepal not enter into any treaty? That is the implication of the article "How not to do a South Asian treaty".

Dipak Gyawali and Ajaya Dixit's critique of the Mahakali Treaty in the April 2001 issue of Himal ("How not to do a South Asian treaty") is a valuable contribution, but I have certain reservations about some aspects of their argument.

Let us begin by looking at the matter from the perspectives of the governments of India and Nepal. The Indian view is that there is enormous hydro-electric potential in the Himalayan rivers, and that the realisation of this potential, the provision of water for irrigation, and to some extent, considerations of flood moderation, necessitate several big projects in Nepal. This is not merely the governmental view; it is also shared by many outside the government. The Nepali view (again, not merely restricted to governmental circles), is that water is to Nepal what oil has been to the Gulf countries, namely, a source of wealth and prosperity. The expectation is that a series of projects for the export of power will generate vast financial resources for the country. These are dominant views in both countries. Given these perceptions, there is a convergence of interests between the two sides (at any rate at the official level). That is why the two governments have been talking about certain projects, and have entered into a treaty on one such, namely, Pancheswar.

Gyawali and Dixit feel that this is a wrong path to take; that the underlying idea of 'development' is misconceived (they use Vandana Shiva's term 'maldevelopment'); that it is unwise for Nepal to embark on huge projects for the export of power; and that it would be in the national interest to focus on smaller projects (people- centred, not technology-driven) essentially for domestic needs. I respect their view and share many of their concerns. However, their essay offers not merely a critique of certain approaches to development, but also a critique of the manner in which the Mahakali Treaty was entered into and ratified. I have some difficulties here.

They clearly imply that there has been impropriety or inefficiency or both in the signing and ratification of the treaty. (Consider the words "bulldozed", "corruption" and "capitulation".) However, all that emerges is that India wanted the Treaty and pursued the matter vigorously. Let us assume that the Government of India did want a treaty and pushed hard for it. Is there some impropriety in that? Could not Nepal have said "No"? What evidence is there for supposing that Nepal was pushed into signing a Treaty it did not want to sign? As already mentioned, there was in fact a convergence of perceptions between the two countries.

It has been stated that the Indian foreign minister walked away with the treaty in a short visit of three days. Much work must have been done prior to the visit and the document brought to the final stage, so that it could be signed during the visit. This is the way things are usually done; there is no mystery here. As for the 'pressure' said to have been brought on Nepal by the British and American governments, Robin Raphel (then US Assistant Secretary of State for South Asia) was no friend of India and was the last person that India would have approached for intervening with Nepal; and relations between India and Britain were not quite so close at the time. In any case, why could not the British government have given some well-meant advice to Nepal in its own interest as they saw it?

But what exactly had happened in this case? India wanted to reach an understanding with Nepal on (among other things) the Pancheswar Project. It also wanted to settle once and for all the vexed Tanakpur issue. Nepal, too, was interested in both these issues. Negotiations took place at the official and political levels. The Government of India, acutely aware that the treaty would need parliamentary ratification by a two thirds majority, took the trouble of holding extensive informal consultations with all political parties in Nepal before the treaty was signed. The treaty was signed, and in due course ratified by the Nepali Parliament (in a manner of speaking—we shall come to that). Let me now turn the question of the article around and ask: "How else would a treaty be done?"

As for the present status of the treaty, I agree that there is an impasse. The parliamentary ratification was accompanied by a set of resolutions (sankalp prastav) that are referred to as "strictures". There are certain unresolved differences between the two governments. Five years after signing it, the treaty continues to be in a state of suspended animation. But is all this the result of dilatoriness, unreasonableness and sheer high-handedness on the part of India? That is the general view in Nepal, but one did not expect that view to be reflected by implication in Gyawali and Dixit's essay. They do not say so in as many words, but on every point that is in dispute they seem to take it for granted that Nepal is right and India is wrong. The fact that on each of these points there is an Indian position (whether one agrees with it or not) does not come out anywhere in the article.

Let us consider the sankalp prastav. If the Nepali Parliament had been deeply troubled by certain questions, it should have refused to ratify the treaty. To say.. it is ratifying the treaty but at the same time passing a series of 'strictures' is to try to have the cake and eat it too. Strictures by the Nepali Parliament can apply to the Nepali government, not to the Government of India. The Government of Nepal must of course take note of its Parliament's concerns, and if necessary, go back to the Government of India for a fresh round of negotiations. But in that event, the treaty must be treated as dormant (if not as non-existent) until the re-negotiation is completed and a fresh document is agreed upon. And of course the negotiations may fail, or may yield results that the Nepali Parliament may not approve of.

It seems to me that there can only be 'ratification' or 'non-ratification' of a treaty, and not a conditional ratification; and that a conditional ratification is the same as non-ratification. It could be seriously argued that the Mahakali Treaty does not stand ratified and therefore does not exist, and that the question of implementing it does not arise. However, as the general impression is that the treaty has been ratified, let us look at the differences that have emerged:

(i) The Kalapani issue: This is a territorial dispute. Either the area in question is part of Indian territory or it is not. If it is, the Indian military presence there is a matter of no consequence to Nepal; if it is Nepali territory, India has no business to be there. This is a matter to be resolved with reference to old records, documents, maps, survey reports, etc. The dispute needs to be settled quickly in a spirit of goodwill and not allowed to fester. Nothing is gained by arousing emotion over this issue, and in any case, this has nothing to do with the implementation of the Mahakali Treaty.

(ii) "Boundary River": The Nepali view, drawing support from the parliamentary resolution, is that the qualification "on major stretches" should be ignored and the Mahakali treated simply as a boundary river. No one can write that kind of a gloss on the treaty. The words of a treaty, the result of hard negotiation, are sacrosanct. If the Mahakali Treaty says "boundary river on major stretches" then that is what it is.

(iii) "Equal sharing": From the fact that the Mahakali is a boundary river, the Nepalis draw the inference that it belongs equally to the two countries, and therefore half of the waters of the river belong to Nepal. These doctrines (boundary river, ownership of half the waters, etc) seem to be Nepali innovations not easily derivable from any international law or principles. The Indian view (if I have understood it correctly) is that the river can be used by the two countries but does not 'belong' to either; that in particular, any doctrine of ownership of flowing water and the implied right of the upper riparian to 'sell' the water so owned to the lower riparian (who would in any case receive that water naturally by gravity flow), seems non-maintainable in international law; that "equal sharing" really applies to the incremental benefits to be created by the Pancheswar Project; and that the relative benefits gained by the two countries would determine their respective shares of the capital costs of the project. There is a clear divergence of views here. In so far as this is the result of inadequate negotiation or poor wording, both sides must share the blame for leaving this nebulous area in the treaty. Nothing will be gained by taking a dogmatic position on this issue; this is a matter for discussion between the two countries with a view to arrive at an agreed position.

(iv) The protection of existing consumptive uses: Under the Treaty, the sharing of the capital costs of the Pancheswar Project would be in proportion to the relative incremental benefits, and the incremental benefits have to be reckoned after protecting existing consumptive uses of the waters of the Mahakali. India has claimed that there is such an existing consumptive use at the Lower Sarada, but the Nepalis question this on certain grounds. Without going into those arguments in detail, let us merely ask: is there merit in the claim of existing use? This issue can be easily resolved if answers are found to the following questions: a) Is there an existing consumptive use of Mahakali waters in the Lower Sarada area? If so, what is the quantum? How old is the use? Is it regular or occasional? Is it a fact that the farmers depend essentially on the Karnali and draw upon the Sarada only infrequently, when for certain reasons they are unable to use Karnali waters, and if so, how important is that occasional use? b) What would be the consequences of not recognising this as "existing use"? Is it merely a question of reckoning this against India's share of the benefits arising from the Pancheswar Project, and thus requiring India to pay more (perhaps a few hundred crores) towards the capital cost of the project? Or is there a danger of actual denial of Mahakali waters to the farmers in question? (Incidentally, if this is in fact a case of prior use, would it not be entitled to consideration under the Helsinki Rules and now the new UN Convention even if there were no Treaty?) c) In the event of the farmers being denied Mahakali waters, do they have any alternative water source, or will they be subjected to distress? As a result of this examination it may possibly be found that there is no real problem, or that it is marginal, and that solutions are available; but it is necessary to study the matter first.

(v) Power tariff: The side letter to the treaty says that the power benefit is to be assessed on the basis of saving in costs as compared with the relevant alternatives available. Two questions would arise: first, what in fact is the 'alternative', and secondly, should the tariff be the same as that of alternative cost? In regard to the first question, there are many possibilities (other hydro-electric projects, thermal projects, gas-based projects, etc), and thermal generation need not be assumed to be the only alternative available. In regard to the second question, if in fact the generation cost at Pancheswar is lower, the gain would surely have to be shared between the two countries: if The 'alternative cost' is to be fully paid by India to Nepal, what is India's gain, and what has it 'avoided'? In any case, the price of power is not a question of abstract principles but one of negotiation. It will have to be attractive enough to Nepal to warrant the undertaking of a big project and affordable enough to India to warrant purchase from this source. Here again, the difference, if any, does not seem insurmountable; but so far as one knows, this question has not yet come up for serious discussion.

It will be a mistake to take a gloomy view of such differences and difficulties, and to regard these as indications of the failure of the Treaty. What is important is that they should be quickly dealt with and settled. Delay and drift will render them more difficult and perhaps even intractable. Unfortunately, delay and drift are what seem to be happening.

At the end of the article, the authors have outlined an approach for the future. I have no quarrel with that. But what do we do about the Mahakali Treaty itself? Do the authors feel that the only thing that can be done is to scrap it? Should those who have the cause of a good relationship between the two countries at heart work for the salvaging of the treaty (however qualified one's approval of it may be) and the amicable resolution of differences, or for the destruction of the treaty with the inevitable impact of such a denouement on Indo-Nepal relations? This is not a rhetorical question; it is asked in all seriousness.

Let me add that I would address such a question to Gyawali and Dixit but not to certain others (whom I shall not name) in whom there is a deep visceral dislike for India. If in fact a visceral dislike for India is a ubiquitous phenomenon in Nepal (and we saw recently, the case of some reported but unstated remarks by an Indian actor, how easily anti-India feelings could be roused, leading even to riots), then one can only say: "Let not India and Nepal enter into any treaties; they will not work; the only possible relationship between the two countries is one of coldness, correctness and distance." I hope from the bottom of my heart that it is not necessary to take such a pessimistic view.

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