Some musings on the Mahakali Treaty

It is with interest that I read Dipak Gyawali and Ajaya Dixit's "How not to do a South Asian Treaty" (April 2001). Equally interesting was Ramaswamy R. Iyer's response "Delay and Drift on the Mahakali" (June 2001). Such articles on important issues by well-known thinkers from both sides will definitely help to bridge the yawning gap between Nepal and India. I am adding my own thoughts to those two excellent articles, in this instance related to water sharing, on the much hyped Mahakali Treaty, one which is literally in the "Kumbhakarna" stage of hibernation.

1. Nepal's right to say no: Iyer is right when he says that even if India did want the treaty and pushed hard for it, Nepal, as a sovereign nation, had always had the right to say "no" to a document that it was not satisfied with. This right of the sovereign nation was amply demonstrated by Canada when, despite the signing of the Columbia River Treaty on 17 January 1961 by the heads of states of Canada and the United States, the Parliament in Ottawa refused to ratify the treaty. It was only on 16 September 1964, after a lapse of a full three years and eight months and the "manner of implementation was defined through a Protocol and arrangements were made to sell the first 30 years of Canada's Entitlement to the power benefits arising from each storage project", that the Canadian Parliament finally ratified the treaty with the United States.
2. Nepal's inability to say 'no': One has got to back-peddle to the period of the early 1980s to know the environment and circumstances to understand why Nepal could never utter that simple word 'no'. It is here that Gyawali and Dixit have done an extremely commendable job in their "forensic deconstruction of the Mahakali Treaty of 1996 between Nepal and India …..the larger neighbour as bulldozer and the smaller one as hapless and internally divided. Just how not to do an agreement for the sharing of a common resource …". The two writers have, much to the discomfiture of many in India as well as Nepal, explained the chronology and nuances of events that included the unilateral construction of the Tanakpur Barrage, the gifting away on a platter of the 2.9 hectares of Nepalese land at Jimuwa, through an understanding that the Nepali Supreme Court subsequently termed as a treaty for being "pervasive and long term", Nepal's ill-fated upmanship in converting the Tanakpur issue into the broader Mahakali Package Deal, and the final closing-in for the kill on the hapless and much divided coalition government in Nepal. Ironically, the Mahakali Treaty was signed at a time when Prakash Chandra Lohani was foreign minister and Pashupati SJB Rana water resources minister, the same stalwarts of the Panchayat era who may have on an earlier occasion said no to the same Tanakpur Barrage!
3. Ratification or non-ratification: I am in full concurrence with Iyer's view that there can now only be ratification or non-ratification of the Mahakali Treaty. There is no question that the conditional ratification with "strictures" (the sankalpa prastav) will be applicable only to the Nepali government and not the government of India. This is why I have been compelled to state that the Mahakali Treaty has technically achieved the "Kumbhakarna" status. So far, India has been the sole beneficiary of the agreement, with the formal legalisation and utilisation of the unilaterally constructed

Tanakpur Barrage. Nepal's attempt at one-upmanship of linking the Pancheshwar Project in the Mahakali Package Deal has failed miserably, although hopefully for the time being only.

1. The differences: lyer has very eloquently elucidated the differences that have emerged between the neighbours on the following five issues:
2. The Kalapani Issue: However, here, Iyer has misunderstood the Nepali sensitivity when he very clinically argues that the Kalapani border issue "has nothing to do with the implementation of the Mahakali Treaty." He cannot be faulted too much on this, of course. Nepalis may not be in a position to understand the sentiments of India on the recent Boraibari/Padua incidents on the Indo-Bangladesh border, or for that matter the Indo- Pakistan Kargil skirmish. One principle clearly demonstrated and stood firmly on by India both with Pakistan and Bangladesh, was its stand on the pre-conflict "status quo/line of control" position. It is exactly this internationally accepted principle of the return to the status quo position thit Nepal wants India to abide by on the Kalapani issue. I believe this is the government of Nepal's position. That is, the categorical return of India's armed personnel to the pre-1963 position and then as stressed by Mr. Iyer "…a matter to be resolved with reference to old records, documents, maps, survey points etc." Nepal vividly remembers the Mahakali/Sutlej territories it ceded to the East India Company in the 1814- 16 Anglo-Nepal war for its reluctance to cede 22 measly villages in the Tarai to the Company!
3. The Boundary River Issue: On the matter of the Mahakali being a "boundary river on major stretches" and basically "a border river", Nepal's then water resources minister, Pashupati SJB Rana, went categorically on record to say that they have the same meaning. I believe Nepal has no problem with the sacrosanctity of the treaty on this issue.

iii. Equal Sharing Issue: It is here that Nepal, I believe, would have major differences of opinion with what Iyer believes is the Government of India's position. He, too, concurs that there is a "clear divergence of views here". He terms the ownership of half of the Mahakali waters as "Nepali innovations not easily derivable from any international law or principles." I would like to humbly state that the unilateral construction of the Tanakpur Barrage by India on "a boundary river on major stretches" without informing/consulting Nepal was similarly an Indian innovation not derivable from any international law or practice. This is probably the reason why Gyawali and Dixit use the term "bulldoze", which Iyer has difficulties with. But I do fully agree with the latter that nothing is "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."

1. Protection of Existing Consumptive Uses: Here, too, the two governments are at serious loggerheads. Iyer states, "India has claimed that there is such an existing consumptive use at the Lower Sarada, but the Nepalis question this on certain grounds." It is on this existing consumptive use issue that Nepal's Parliament has unanimously passed its strictures, interpreting this to mean equal rights to all the waters of the Mahakali. If I understand the Nepali government's position on this issue correctly, then this "respective existing consumptive uses of the waters of the Mahakali River" emanates from the treaty's paragraph 3 of Article 3 which pertains to the Pancheshwar Multipurpose Project and not the Mahakali River itself. I do not pretend to be a lawyer but I believe this interpretation may keep our parliamentarians happy. But the implication this may ultimately have on Nepal's cost-sharing mechanism in relation to the Pancheshwar Project needs to be carefully ascertained by our bureaucrats. Iyer refers to the Helsinki Rules on the "fair and equitable" sharing of common resources and also the new UN Convention on which, if I am correct, India abstained from voting. I might add here that, internationally, these rules and conventions are preached more than they are actually practised. There is no doubt that this existing consumptive use issue is the major stumbling block in the implementation of the Mahakali Treaty.
2. Power tariff: Nepal's then minister for water resources, Pashupati SJB Rana, exhorted the joint session of Parliament on September 11, 1996 to ratify the Mahakali Treaty because Nepal was successful in convincing India "to accept the principle of displaced cost of alternatives in the evaluation of electricity benefits." In this context, Iyer has clearly spelt out the Indian position that "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." He is probably referring to the 3.3 US cents per unit gas-based generation in Bangladesh. There is a tendency here in Nepal to gloat over the "avoided cost principle" victory. This could be the Pyrrhic victory pointed out by Iyer. He has also quite rightly stated that if the generation cost at Pancheshwar is lower than the alternative then this gain will surely have to be shared between the two countries.
3. Conclusion: If the Mahakali Treaty is to wake up from its present anaesthetised status, then there is the urgent need for sagacious leadership on both sides of the border. In their "way forward", Gyawali and Dixit have rightly stressed "…Nepalis should stop reflexively blaming the Indians…." and equally that "…there cannot be a way out unless there is also a change of perspective in India's approach."

Again, consider what Nepal's then water resources minister, Pashupati SJB Rana, assured the joint session of Parliament on 11 September 1996 while exhorting it to ratify the Mahakali Treaty, "From now onwards, no project like Tanakpur will be constructed unilaterally. It is a great achievement for Nepal that projects in future can be developed only on the basis of bilateral agreement." This has become a hollow statement, far removed from the truth, when one considers the ongoing Indo-Nepal duel on the Laxmanpur Barrage on the Rapti River. Issues like these are the ones that touch the raw nerves of Nepal in the furtherance of a cordial Indo-Nepal relationship.

Like Iyer, I too would like to end on an optimistic note. I believe that wisdom will ultimately prevail on both sides and our differences be amicably resolved in order to develop our vast water resources. This is in the larger interest of the poor and hungry masses on both sides of the border.