Teesta treaty: Modi's liability or Mamata's?

It was 2018. Foreign minister Sushma Swaraj was in Delhi, highlighting the four years of the BJP government's foreign policy successes. When she was asked about the stalemate in the Teesta treaty, she replied, "We are in the government for another year, so it can't be said that we have failed as yet."

Sushma pointed out that West Bengal had said that they would be harmed if the Teesta treaty was signed and so had come up with an alternative proposal to give Bangladesh water from the river Torsa. She said that the feasibility of this proposal was being studied.

Four years have passed since that conference of Sushma's and no progress has been made in the Teesta talks. Nor has anything been heard about the alternative supply of water. The draft of the agreement had been signed 11 years ago, but even so the Teesta treaty hasn't materialised. In fact, it didn't even find place in the agenda of discussions held during the prime minister's recent India visit.

The river Teesta is vital for the lives and livelihood of around 20 million people of Bangladesh's northern region as well as the environment and biodiversity there, yet India is availing this water alone. When questions are raised in this regard, India's ready reply is that the treaty can't be signed because the West Bengal chief minister Mamata Banerjee doesn't agree to it.

Bangladesh has been accepting this explanation for the last 11 years. There is no lack of ministries, directorates, departments and research institutes in the country on rivers and water. But no one seems least concerned about challenging this excuse of India. No one has looked into what leverages Bangladesh can use to force or convince India to sign this deal.

The Teesta deal hasn't come through and so, in accordance to the 1996 Ganges treaty, nor has there been any other treaty for the sharing of waters of any other significant river. In the meantime, an understanding has been reached for the use of the Feni River to increase regional connectivity in the interests of India.

Bangladesh has historically been using the waters of the river Kushiara and recently an MOU was signed regarding the use of just a little of it. But there was been no progress whatsoever in signing any deal regarding Teesta or any large river.

Who is liable for this, West Bengal (Mamata), or India central (Modi) government?

Teesta flows through Sikkim and West Bengal and so is an interstate river of India. Again, it flows through more than one country (India and Bangladesh) and so is an international river too.

As India has a federal government structure, the constitution has fixed the jurisdiction of the central and the state government in the use of its river waters. According to Article 246, water supply, irrigation and water projects are under the jurisdiction of states like West Bengal, however, with certain conditions attached.

One of the conditions is that in the public interest, the central government can have a law enacted by the parliament and retain control over the use and management of interstate rivers. Accordingly, in 1956 two laws were enacted, giving the central government the power to resolve any interstate conflict concerning rivers. Even in 2018, another draft law was drawn up, in an effort by the BJP government to keep interstate river management entirely in control of the central government.

Teesta is an interstate river so it is not true that the central government has nothing to do in this regard. Most importantly, as this is an interstate river, signing a treaty in this regard with Bangladesh is completely in the jurisdiction of the central government. There is no scope for West Bengal or any other state to hinder this. The implementation of any agreement with a foreign state is also completely in the jurisdiction of India's central government.

When the Indian government signed the five-year Ganges treaty in 1977 with Bangladesh and the 30-year Ganges treaty in 1996 during the government of Sheikh Hasina, the West Bengal government has opposed the deals at the time too. Due to the obligation under the UN consensus statement, a guarantee clause was included in the first agreement, to provide around 34,000 cusecs of water to Bangladesh. The second agreement was signed with an assurance of supplying West Bengal alternative water from the Sangkosh river. Why has this government, 13 years in power now, failed to implement something like this?

One of the main reasons behind West Bengal's reluctance about the Teesta treaty is the dependence of a number of its districts on the river for irrigation. West Bengal's politicians and experts say that they do not get adequate water due to several projects approved by the Indian government upstream in Sikkim.

If India's river linking project comes through, the water of Teesta and many Himalayan rivers will be diverted to other regions and West Bengal's water scarcity may be exacerbated.

Those are all India's domestic problems. India can resolve the problem by adjusting the water demands of Sikkim and West Bengal. But whether the problem is resolved or not, Bangladesh cannot bear the brunt. And no state of India can bear the responsibility of the Teesta treaty not being signed with Bangladesh.

If we simply accept the Indian narrative, then we will never be able to exert our rights to the waters of over 50 rivers with India. All of these rivers run through one Indian state or the other before entering Bangladesh. How can we be so suicidal as to simply sing to India's tune and echo its contention that it is the liability of the state governments to approve these treaties?

From the very outset Bangladesh has been following an erroneous policy in talks regarding the sharing of the waters of Teesta and other rivers. The major error is in the term, 'water sharing'. A river is not just a source of water, it is a vast ecosystem, a hub of biodiversity and it controls the surrounding environment. That is why it is not a matter of merely sharing water, it is a matter of integrated use and management.

India and Bangladesh only have talks on 'water sharing' of the common rivers, that too according to the Indian guidelines. Talks between the two countries take place in accordance to those guidelines, integrating the requirements of an Indian state (West Bengal). But according to any international law or policy, this must be an integration of the requirements of Bangladesh and India.

But the talks between India and Bangladesh take place as if Bangladesh too is a state of India and, as a guardian, India is unable to resolve the water conflict due to the reluctance of one of the states!

This is extremely offensive for an independent country. Our prime minister herself has said, "We have given so much to India, they will never be able to forget." After giving so much, if Bangladesh's interests were also upheld (such as sharing of common river waters, halting the killing of Bangladeshis along the border, etc), then the Teesta treaty would not remain hanging in limbo so long.

Signing the Teesta treaty is still possible, in keeping with the Indian constitution and international laws. How to get West Bengal to agree, or to sign the treaty without their approval, is India's headache, not ours. All we need to say is that if we do not get Teesta water, India should not expect anything from us either.

We still can say that. This can be possible if we remain strict about India's responsibility, rather than asking India for its help to stay in power.

* Asif Nazrul is a professor of law at Dhaka University and an expert on international river laws.

* This column appeared in the print and online editions of Prothom Alo and has been rewritten in English by Ayesha Kabir