To the Representatives
Nepal-India Joint Meeting on Water Resources
Pokhara

Dear sirs/madams,

We are writing today to express before you the following concerns we have regarding the past and present of Nepal-India water cooperation, particularly in the context of the controversial status of the Mahakali Treaty and the future of Pancheshwar dam:

1. There should be no any decisions whatsoever regarding any large dam projects in Nepal before the detailed and independent assessment of the tragic experiences with the Koshi and Gandak agreements. Such a study must be conducted before the next meeting between the officials of the two governments by applying the standard criteria and guidelines for the economic, financial, social, cultural and environmental assessments of such projects.

2. India must stop immediately the continuing construction or repair or maintenance of any embankments, barrages and reservoirs legally within its territory but in the most sensitive Nepal-India border against the principles and practices of existing international law. There should be a comprehensive review of all the existing structures jointly about their impacts in both the Nepali and Indian villages and communities. As these structures are also made in the international rivers, there must be formal and permanent legal and institutional arrangements for thee negotiation, approval and implementation of such structures that particularly affect the Nepali land.

3. As the Treaty concerning the Integrated Development of the Mahakali River including Sarada Barrage, Tanakpur Barrage and Pancheshwar Project (known as the Mahakali Treaty) signed in 1996 has virtually been dead legally and technically and as the two governments also failed to review it at the completion of 10 years as provided under article 12(3) of the Mahakali Treaty, it must be reviewed or amended or cancelled for the conclusion of a new treaty on the development of Mahakali River and equal benefit-sharing as and when appropriate and convenience. The Indian government must take into account that the Mahakali Treaty looses all of its remaining legitimacy if the incorporation of the Sankalpa-Prastav (the strictures) passed by the Nepali Parliament as a pre-condition for the validity and legitimacy of this Treaty before its ratification in 1996.

4. There can be no Pancheshwar dam or it all null and void before the corrections of the controversial provisions contained in the Mahakali Treaty and the formalization of the Sankalpa-Prastav by making it as an integral party of the Treaty. One of such controversial provisions is about both Nepal and India to "have equal entitlement in the utilization of the waters of the Mahakali River without prejudice to their respective existing consumptive uses of the waters of the Mahakali River" (article 3). This provision alone makes the whole Treaty as unjust, unequal and unreasonable for Nepal as it has already been wrongly interpratated by India as if the whole of the water it has previously used from the Sarada Barrage should be considered as the so called "existing consumptive uses" which is a flaw as the 1920 British Colony-time Sarada Agreement has already been replaced by the Mahakali Treaty, and it also has no mention that any such prior appropriation right includes the Sarada Barrage water.

5. Further, there must be a comprehensive treaty regarding the sharing of co-riparian benefits of all the rivers and projects from past to the present as well as the future such as the case of the most controversial West Seti hydroelectric project as proposed which benefits India enormously with the free water available with no invest on its side and at huge cost and investment on the side of Nepal. But there have been no provisions for any sharing on the part of India in the current West Seti contract agreement signed with the Australian multinational, Snowy Mountains Engineering Corporation (SMEC).

6. The access to information; the right to clean environment; the right to just and adequate compensation, resettlement and rehabilitation; the right and interest of the local, indigenous and tribal peoples and the right to riparian and other benefit-sharing by all the concerned people and the affected communities must be guaranteed in all the projects and agreements so as to ensure transparency and avoid further disasters. In case of failures of these rights guaranteed under Nepali, Indian and international laws and policies, there must be some provisions for legal and institutional remedies available for affected persons or communities in both countries for use as appropriate.

7. There should be no further agreements or projects on any international rivers without the involvement of all other co-riparian countries such as Bangladesh in the case of the River Ganges, and Bhutan and China as well in the conservation, management and development of the trans-Himalayan rivers also due to the common challenge of all the co-riparian countries to address the most serious of problem of global climate change and the consequence of rapid glacial melting.

8. Nepal and India must declare a moratorium on the construction of large and destructive dams or any river-linking or river-diversion projects until the overall assessment of the whole Himalayan and Peninsular rivers in relation to the effects of economic, social, environmental and climate change.

9. Agree on a common on positions on the issue of climate change and its adverse impacts on the Himalayas and the loss of Himalayan ecosystem for the Copenhagen Summit on climate change to be in Copenhagen, Denmark, next month so as to adopt trans-national, trans-Himalayan and regional adaptation plans and necessary funding for it by the highly industrialised and/or developed countries – the main culprits of the major climate change globally.

10. Ratify immediately the 1997 UN Convention on the Law of the Non-Navigational Uses of International Courses and other international instruments so as to conserve, manage and develop our international rivers collectively with the effective and meaningful involvement of all the co-riparian countries and the trans-boundary river-basin communities.

Sincerely,

Tek Nath Baral
Chairperson
Committee for the Protection of National Heritage and Human Rights Nepal (CPNHHRN), Pokhara

Ram Chandra Chataut
Chairperson
Water and Energy Users' Federation-Nepal (WAFED), Kathmandu

Gopal Siwakoti 'Chintan'
Legal Advisor
Himalayan and Peninsular Hydro-Ecological Network, Kathmandu

Contact:
WAFED/HYPHEN, GPO Box 2125, Kathmandu, Nepal
Tel. 4429741, Fax: 4419610
E-mail: wafed@ntc.net.np,
website: www.wafed.org
Mobile nos. 9841911213 or 9846121261 for Pokhara