Gopal Siwakoti “Chintan”

Unfortunately, Nepal is being seen as a funny country in recent days. We cannot live like this forever in the community of civilized nations. We must change the way we do things with no system of governance from politics to water governance. We cannot keep Pancheshwar alive when the Mahakali Treaty is already dead. It will be like our leaders still being alive despite the fact that their very basic foundation of peace and the constitution-making process is dying.

Nepal ratified the Mahakali Treaty in September 1996 with the promise that a detailed project report would be done in six months, the financing plan in one year and the Pancheshwar project completed in eight years. As nothing has happened in the past 12 years, this treaty has become legally what the Vienna Convention on the Law of Treaties says. No enforcement, no treaty. As simple as that. It is just like a housing contract becoming defunct with no construction work done within the agreed deadline. It can then be renewed or it becomes automatically void.

The time now is not to revive this dead treaty but to declare it so during the visit of Prime Minister Madhav Kumar Nepal to India this week. It is time to think of a new treaty for the development of the Mahakali River. It can and should be done only after seeking a two-thirds majority consensus from the Legislative-Parliament — the Constituent Assembly (CA) in advance. For this, the government needs to submit a new draft treaty before the CA after the said visit if we are to pursue further joint development the Mahakali, and we should.

Prime Minister Nepal can do one more thing if he likes. That is to reiterate to the Indian government that Nepal’s hands are tied by the four stringers, Sankalpa Prastab, and preconditions passed by Parliament in 1996 before ratifying the treaty. These stringers were, and still are if the treaty is yet to be called dead: (a) Declare the Mahakali basically a border river (b) Establish equal rights over the Makakali waters without any claim to prior consumptive use (c) Purchase of Pancheshwar electricity agreement at a cost higher than the average existing rate of power production within India and (d) Nomination of Nepali representatives in consensus with the main opposition and other national political parties in Nepal for the Mahakali River Commission.

Legally speaking, India is not bound by these strictures unless they are made part of the treaty. This is possible only with the good faith of India. But, sadly, India may never want to do this. Nepal briefly informed India about this in November 1996 but not at the time of the exchange of the instruments of ratification later on. It was a blatant blunder.

As the treaty has lost its legal validity and political relevancy and as the two governments have also failed to review it after the completion of 10 years as provided by the treaty or even after, it clearly shows that the talk of Pancheshwar is nothing more than a time-buying and issue-diverting fiasco. We do not need our prime minister to visit Delhi at this time of grave internal crisis just to discuss Pancheshwar as the main agenda. If both countries still believe that the Mahakali Treaty is alive, then our engineers and other project officials are sufficient to implement it. If the agenda of the prime minister is certainly to discuss the four parliamentary strictures in making them part of the treaty, then, yes, there is definitely one agenda there. But it does not seem to be the case.

Talking about the Pancheshwar dam alone, it is nothing more than a dream of exporting electricity by satellite as Prime Minister Nepal had once said in public! It is like beaming up the starship Enterprise for further reference. The reasons are several. One, it will be hard to think that there will be enough water for the dam from the fast-melting Himalayan rivers due to climate change after some decades. Two, the whole Himalayan region has proven to be earthquake-prone, and we have already seen its effects on the Tehri Dam across the border. Three, drowning hundreds of Nepali and Indian villages and displacing hundreds of thousands of people will not be easy given the poor track records of both countries in the past in resettlement.

Four, anti-Pancheshwar dam movements are already quiet strong both in India as well as in Nepal. Five, it will be an almost impossible dream for Nepal to find some Rs. 150 billion for our share of 39 percent of the investment as our credit rating even for smaller loans in the international market is poor. Only crazy people can talk about turning Nepal into Singapore, making the sun rise from the west and believing in making annual profits of over Rs. 121 billion. If these were to be the real case then we would not have wasted our 12 years doing nothing. It is almost like telling a joke that we will be rich by selling Mt. Everest to whoever wants it.

So the best option left for Nepal is to renegotiate the Mahakali Treaty on the basis of the above strictures that are currently binding only on us. Give up the idea of the Pancheshwar dam and establish a framework for the payment of our share of 50 percent of the water to the proportion that India is using if we are to believe that the Mahakali is a border river in all. Just because Nepal is unable to use all its share of the Mahakali waters does not mean that we have no ownership or a right to claim and gain direct riparian benefits from it. India has to pay. Other than this, the Mahakali was a bad model for Nepal from its inception. India got what it had wanted — the water! Pancheshwar was only a tuft of grass shown to a hungry cow but never meant to be given to it to eat.

What we need is a review of all the past water treaties from Koshi and Gandak to Mahakali, and, of course, West Seti, Upper Karnali and Arun 3 too, and reach new agreements only after negotiating a long-term deal. This can happen only after agreeing on a bilateral as well as multilateral framework regional convention on international watercourse sharing. The 1997 UN Convention on the Non-Navigational Uses of International Watercourses and the framework of the World Commission on Dams are some international instruments to consider.

In addition, the rights of the people living in all the river basins from information access to public participation, environmental and social impact assessment to resettlement and the local people’s rights to direct benefit-sharing must be ensured first. No business as usual without a radical change in our old thinking for future Nepal-India water cooperation. Our water policy must be an integral part of a new foreign policy. Do not agree on any bad deals, dear prime minister. Pancheshwar cannot remain alive on the dead body of the Mahakali Treaty.

(The author is pursuing his PhD in Nepal-India water relations.)

gchintan@gmail.com
Source: The Kathmandu Post, 16 August 2009