In a recent statement, the ministry of external affairs said New Delhi was scanning media reports that China has begun constructing a dam on the Brahmaputra as part of the Nagmu hydroelectric project, which was inaugurated in China in March this year. The Assam chief minister said on this: “If the Yarlung Tsangpo is diverted, the Brahmaputra will become dry.” The minister also wanted to put a contingency plan in place to face such a situation. With little or no technical information available first hand from China on the project, a contingency plan may be difficult to conceive, but a starting point here requires taking up the issue with China strongly. It should be made clear that, if media reports are found true, China is breaching its obligation to India and violating international law and norms. Here is how and why.
The plan for damming the Tsangpo was in the news in 2006 when both countries agreed to establish an expert-level institutional mechanism to discuss transborder river issues. The use of such a bilateral mechanism has clearly not been felt by China this time around. A transborder river running dry is what lawyers call transboundary environmental damage, and it attracts some key legal principles. The fact that states should not permit the use of their territory to cause injury to others is backed by the notion of relative sovereignty as opposed to absolute sovereignty, a principle of ancient origin to “use your own property so as not to harm that of another”, and the principle of “good neighbourliness” as found in several international instruments. Besides, two key legal principles described as the “cornerstone of international environmental law” also mandate that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.
It is thus no surprise that today, even a director-general of the treaty and law department of the Chinese government recognizes that “the principle of permanent sovereignty over natural resources is balanced with environmental concerns indicating a shifting emphasis from an absolute right to use and dispose, to a relative duty to protect” (Xue Hanqin in her book Transboundary Damage in International Law, Cambridge University Press, 2003). This duty to protect can also be seen in the Convention on the Law of the Non-navigational Uses of International Watercourses adopted by the UN General Assembly in 1997. The UN watercourses convention provides for the obligation not to cause significant harm and for providing “timely notification” accompanied by “available technical data and information, including the results of environment impact assessment in order to enable the notified states to evaluate the possible effects of the planned measures”. Clearly, no contingency plan (as being mooted by the Assam government now) is possible without sharing of such technical information and, in its absence, downstream governments will be only to look at media reports to know more. To be sure, China is not technically obliged to provide this information under the said Article 12—it being actually one of only three states that opposed the adoption of the UN watercourses convention. If the use of the convention principles is problematic, so is the case with most other principles, which provide little practical guidance to states in their activities.
International laws may be soft, and with many holes, but that doesn’t take away the point that China’s project without notifying India is a breach of international law. India needs to take that as the singular basis for engaging with China on the issue. The engagement ahead needs to factor in that China is not accustomed to following laws made for it by free-standing international authorities. India will agree that perhaps the only point in China’s favour is that it is not alone with this habit.
Videh Upadhyay is special counsel, Delhi Pollution Control Committee, and partner, 3E Law. Comments are welcome at firstname.lastname@example.org