INLAND WATER POLLUTION IN BANGLADESH: THE
NEED FOR REGULATORY REFORM
BIPLOB KUMAR SAHA
LL.B (Hons), LL.M
A thesis submitted for the degree of Doctor of Philosophy
School of Law, University of Western Sydney (UWS)
Sydney, Australia
February 2014
The work presented in this thesis is, to the
best of my knowledge and belief, original
except as acknowledged in the text.
I also hereby declare that I have not submitted this
material, either in full or in part, for a degree
at this or any other institution.
-----------------------------------------------------------------------------------------------------Biplob Kumar Saha
ii
DEDICATION
This work is dedicated to our beloved son BISHESH SAHA, who was too beautiful
for this world. His glowing smiles, profound love and tenacity for life will remain an
inspiration forever.
iii
ACKNOWLEDGEMENTS
My sincere gratitude goes to my principal supervisor, Dr Daud Hassan, for his
enormous support and guidance during supervision of this research. His
encouragement, intensive mentoring and invaluable feedback has enabled me to
produce this thesis. He deserves more recognition and tribute than I can express. I
would also like to express my heartfelt appreciation to my co-supervisor, Professor
Michael Andrew Adams, for his pleasantness, moral support, advice and the
invalueable assistance throughout my research journey.
My acknowledgement also goes to the relevant authority for offering me the
Research Training Scheme (RTS) placement to conduct this study. Having been
awarded the prestigious Australian Postgraduate Award (APA) during my enrolment
in Victoria University (VU), Melbourne, I then transferred my candidature to the
University of Western Sydney (UWS), due to some unavoidable circumstances.
Unfortunately, the scholarship was not transferred as initially promised. This is the
bitter part of my study and resulted in extending the study duration. But the resultant
extended study duration allowed me moretime to put in my best effort for the thesis.
I will never forget the contribution of my fellow colleagues from different regions
for their constructive comments, intellectual advice and moral support during the
most difficult time of my candidature. I am also indebted to my family friends and
well-wishers for their support, encouragement and heartiest cooperation on many
occasions during the journey of my research work. I am indebted to the
administrative staff of the School of Law, law liaison librarians and the Higher
Degree Research office of UWS for their continuous assistance. I would like to
express my sincere thanks to Elite Editing for their editorial support, my peers at
UWS and other noted subject experts for their comments on my drafts. Conversely,
with sadness, I want to acknowledge a few people for not being supportive in
delivering required, timely assistance to overcome some difficulties during the
candidature.
Completion of this task was a long journey for me and it would not have been
possible without the assistance of many individuals. I would like to offer my sincere
gratitude to all who have extended their kind cooperation and assistance during
different stages of this work, to mention all those names is not possible here. Special
iv
thanks go to a number of people in Bangladesh, who provided tremendous assistance
during the field visit. Their moral support and guidance were encouraging during the
research work when it was needed most.
My passionate and deepest gratitude to my beloved parents, Basona Rani and Badal
Chandra Saha—their hardship, guidance, sacrifice and endless affection has brought
me to this stage in my life. I also delightfully acknowledge the loving and caring
support of my in laws Sabita Rani and Shubal Chandra Saha. I earnestly recognise
the support of my younger brother, Bipul, and the sacrifice of my extended family
during my research period. They were encouraging all the way through and ensured
all the necessary support unconditionally and blessed with love, affection and
prayers to complete the tedious task. They have been dreaming of this day for a long
time and I am confirming my lifelong gratefulness to them. Last, certainly not least,
thanks to my better half, Soma Saha, our wonderful daughter, Bineeta, and adoring
son, Boron, for their sacrifices, enthusiastic support and moral strength that inspires
me to take this journey to a successful completion.
v
RESEARCH OUTCOMES
SEMINAR PRESENTATIONS
CANDIDATURE PRESENTATION
Biplob Kumar Saha, ‘Inland Water Pollution in Bangladesh: The Need for
Regulatory Reform’ (Paper presented at the Postgraduate Research Colloquium,
College of Business, University of Western Sydney, Sydney, 3–4 November 2010).
CHAPTER 2
Biplob Kumar Saha, ‘Inland Water Pollution in Bangladesh: Sources and Effects’
(Paper presented at the Postgraduate Research Colloquium, College of Business,
University of Western Sydney, Sydney, 7–8 November 2011).
CHAPTER 6
Biplob Kumar Saha, ‘Protecting Inland Water Pollution: Challenges and
Opportunities in Bangladesh’ (Paper presented at the Postgraduate Research
Colloquium, School of Law, University of Western Sydney, Sydney, 7 November
2013).
vi
ABSTRACT
Inland water pollution has been a major concern for the government of Bangladesh.
Several policies and plans based on regulatory measures have been adopted by the
government over time to address the issue. In spite of these efforts, no significant
improvement in inland water pollution has been achieved. In addition, an updated,
detailed and systematic analysis of this issue is lacking. This research aimed to
nominate a new management authority to control inland water pollution effectively.
The study revealed that the inland water sources of Bangladesh are polluted by a
combination of wastewater both from municipal and industrial sources. Agriculture
is the main non-point source of water pollution. Also, river water quality was found
to be unacceptable (compared to the standards set by the Department of Environment
of Bangladesh) for the parameters such as Dissolved Oxygen, Biochemical Oxygen
Demand and Chemical Oxygen Demand during dry (low flow conditions) and wet
(high flow conditions) seasons. The study identified that the existing regulatory
approaches to control inland water pollution are not functioning effectively. The
compliance and enforcement of these regulatory measures are not satisfactory,
resulting in continuing pollution problems. The thesis uses academic research to
articulate a comprehensive solution to these problems through better regulatory and
institutional regime changes.
The study evaluated existing national policy and legal and institutional framework to
determine their inadequacies and failures, resulting in regulatory reform
recommendations to improve the appropriate utilisation of inland water in
Bangladesh. As part of this research, an effort has made to identify the fundamental
framework of international watercourses law that could serve as a guideline to
protect inland water from pollution. These frameworks conceived the main legal
issues concerned with the use, development and protection of international
freshwater resources, and will concentrate on regional arrangements to protect and
control inland water pollution.
The study explored the development of relevant international management principles
for managing inland water and critically reviewed the long-established relationship
between those principles and the international legal framework to preventing inland
water pollution. The thesis assessed different principles of transboundary water
vii
management and the significance of soft law in developing domestic water related
rules and policies. In addition to the evolving national legal regime, it examined
bilateral regulatory initiatives that enable a deeper understanding of the strength and
weaknesses of the existing legal regimes in Bangladesh.
The research proposed strengthening of organisational capacity, in favour of a single
authority that would be invested with total supremacy and responsibility for inland
water pollution control in Bangladesh. Therefore, a recommendation has been made
that an Inland Water Management Authority be established, to work under the
supervision of the Ministry of Environment and Forests. This authority could be
allocated with legislative power to take sole responsibility to manage and coordinate
all inland water related activities. Moreover, the study noted the substantial positive
contributions of stakeholders’ participation and commitments towards managing
inland water pollution of the country. The study concluded that a sustainable
pollution management system for the inland water is attainable by bringing together
all the stakeholders concerned at a local level and by applying suitable pollution
control measures along with the suggested set of policies. Thus, the proposed reform
would contribute to the improvement of the current regime and to controlling the
inland water pollution in Bangladesh effectively.
viii
CONTENTS
DEDICATION ......................................................................................................................... iii
ACKNOWLEDGEMENTS .................................................................................................... iv
RESEARCH OUTCOMES .................................................................................................... vi
ABSTRACT ............................................................................................................................ vii
CONTENTS ............................................................................................................................. ix
LIST OF FIGURES .............................................................................................................. xiv
LIST OF TABLES ..................................................................................................................xv
LIST OF CASES ................................................................................................................... xvi
LIST OF INTERNATIONAL WATER LAW INSTRUMENTS ................................... xviii
LIST OF ACRONYMS ........................................................................................................ xix
CHAPTER 1: INTRODUCTION ............................................................................................1
I Introduction .......................................................................................................................1
II Background of the Research ..............................................................................................5
III Thesis Statement ..............................................................................................................11
IV Objective of the Thesis ....................................................................................................12
V Rationale and Importance of the Study ...........................................................................12
VI Methodology....................................................................................................................17
VIIChapter Overview ............................................................................................................20
CHAPTER 2: INLAND WATER POLLUTION IN BANGLADESH:
SOURCES AND EFFECTS ...................................................................................................24
I Introduction .....................................................................................................................24
II The World’s Water ..........................................................................................................24
III Inland Water in Bangladesh ............................................................................................29
A
North West (NW) Region ........................................................................................33
B
North Central (NC) Region .....................................................................................33
C
North East (NE) Region ..........................................................................................34
D
South West (SW) Region ........................................................................................34
E
South Central (SC) Region ......................................................................................34
F
South East (SE) Region ...........................................................................................34
G
Eastern Hills (EH) Region .......................................................................................34
IV Sources of Inland Water ..................................................................................................36
H
Surfacewater ............................................................................................................36
1
Rainfall .............................................................................................................37
2
Transboundary Flow.........................................................................................38
3
Water in Standing Water Bodies ......................................................................40
4
Water in Seasonal Wetlands .............................................................................40
5
In-stream Water Storage ...................................................................................41
I
Groundwater ............................................................................................................41
V Definition of Water Pollution ..........................................................................................42
VI Inland Water Pollution in Bangladesh .............................................................................45
J
Point Sources of Water Pollution ............................................................................45
6
Household Activities ........................................................................................46
7
Industrial Activities ..........................................................................................47
ix
K
Non-point Sources of Inland Water Pollution .........................................................50
VIIImpacts of Inland Water Pollution ..................................................................................52
VIII
Concluding Remarks ...............................................................................................57
CHAPTER 3: INLAND WATER POLLUTION IN BANGLADESH:
PROBLEMS AND ISSUES ....................................................................................................58
I Introduction .....................................................................................................................58
II Scientific and Technical Problems of Inland Water Pollution Control ...........................58
III Environmental, Economic and Social Problems of Inland Water Pollution
Control .............................................................................................................................61
IV Legal Conceptual Problems of Inland Water Pollution Control .....................................68
A
Threshold of Inland Water Pollution .......................................................................69
B
Limitation of Sovereignty to Protect Inland Water Pollution..................................75
C
Theories and Doctrines of Managing Transboundary Water ..................................78
V Other Constraints Affecting Inland Water Pollution Control..........................................86
D
Poverty .....................................................................................................................87
E
Incapacity.................................................................................................................88
F
Economic Incentives................................................................................................91
G
Regional Conflict .....................................................................................................92
VI Concluding Remarks .......................................................................................................94
CHAPTER 4: INTERNATIONAL MANAGEMENT PRINCIPLES FOR
PREVENTING INLAND WATER POLLUTION ..............................................................95
I Introduction .....................................................................................................................95
II Principles of Managing Inland Water..............................................................................95
A
The Concept of Sustainable Development (SD) ......................................................96
B
The Concept of Integrated Water Resource Management (IWRM) ........................98
C
The Concept of Adaptive Water Management (AWM) ........................................104
D
The Precautionary Principle ..................................................................................106
E
The Polluter-pays Principle ...................................................................................108
III Contribution of Management Principles to Protect Inland Water from
Pollution ........................................................................................................................111
IV Concluding Remarks .....................................................................................................120
CHAPTER 5: THE GLOBAL FRAMEWORK FOR PROTECTING
INLAND WATER POLLUTION ........................................................................................122
I Introduction ...................................................................................................................122
II The Role of Customary International Law (CIL) to Protect Inland Water
Pollution ........................................................................................................................122
A
Customary and General Principles of Watercourses Law .....................................125
1
Principle of Equitable and Reasonable Utilisation .........................................126
2
Obligation Not to Cause Significant Harm (No Harm Rule) .........................127
3
Principles of Prior Notification and Cooperation ...........................................129
4
Principle of Peaceful Disputes Settlement .....................................................129
5
Principle of Common Management/Community of Interest ..........................130
III Contributions of INGOs Through the Development of International
Watercourses Law Relating to Inland Water Pollution .................................................132
B
The United Nations Conference on the Human Environment 1972,
Stockholm ..............................................................................................................134
C
The United Nations Conference on Water 1977, Mar del Plata ............................134
D
International Water Supply and Sanitation Decade (1981–1990) .........................135
x
E
International Conference on Water and the Environment (ICWE)
1992, Dublin ..........................................................................................................135
F
United Nations Conference on Environment and Development
(UNCED) 1992, Rio de Janeiro .............................................................................137
G
World Summit on Sustainable Development (WSSD) 2002 (Rio + 10) ...............138
H
Rio Earth Summit 2012 (Rio+20) .........................................................................139
I
Contribution of the World Water Council (WWC) ...............................................140
IV Development of International Rules and Resolutions of Transboundary
Water Resources ............................................................................................................141
J
Contribution of the Institute of International Law (IIL) ........................................141
6
Heidelberg Resolution on the International Regulation of River
Navigation 1887 .............................................................................................142
7
International Regulation Regarding the Use of International
Watercourses for Purposes Other Than Navigation 1911 ..............................142
8
Regulation Governing Navigation on International Rivers 1934 ...................143
K
Contribution of the International Law Association (ILA) .....................................145
9
Base Rules of Law Concerning the Uses of International Rivers
1956 (Dubrovnik Statement) ..........................................................................145
10
Resolution on the Use of the Waters of International Rivers 1958 ................146
11
Recommendations on the Procedures Concerning the NonNavigational Uses 1960..................................................................................147
12
Helsinki Rules on the Uses of the Waters of International Rivers
1966 ................................................................................................................147
13
The Berlin Rules on Water Resources 2004 ..................................................149
L
Contribution of the Inter-American Bar Association (IABA) ...............................151
M The Work of the International Association for Water Law (IAWL) .....................152
N
The Work of the Asian-African Legal Consultative Committee ...........................152
V Significance of Soft Law in terms of Controlling Inland Water Pollution....................154
VI Global Convention of Universal Application to Manage Transboundary
Water .............................................................................................................................156
O
International Convention of Universal Application ..............................................156
P
International Convention of Regional Application ...............................................157
Q
United Nations Convention on Non-Navigational Uses of
International Watercourses (1997) ........................................................................158
R
Impact of International Conventions .....................................................................161
VIIFuture Initiatives for Sharing Transboundary Water.....................................................164
S
Transboundary Waters Opportunity (TWO) .........................................................166
T
Strategic Environmental Assessment (SEA) .........................................................166
VIII
Concluding Remarks .............................................................................................168
CHAPTER 6: REGULATORY FRAMEWORKS FOR PROTECTING
INLAND WATER POLLUTION: CHALLENGES AND
OPPORTUNITIES IN BANGLADESH .............................................................................170
I Introduction ...................................................................................................................170
II Early Development of Legislative and Policy Framework ...........................................171
A
The Environment Court Act 2000 .........................................................................177
B
National Water Law (NWL) 2013 .........................................................................179
C
The National Water Policy (NWPo) 1999 .............................................................180
1
River Basin Management ...............................................................................183
2
Management of Water Resources...................................................................183
3
Water Ownership and Allocation ...................................................................183
xi
4
5
6
7
Economic and Financial Management ...........................................................184
Research and Information Management.........................................................184
Water for the Environment .............................................................................185
Stakeholders’ Participation............................................................................185
D
National Environmental Management Action Plan (NEMAP) .............................186
E
National Water Management Plan (NWMP).........................................................187
III Institutional Framework of the Water Sector in Bangladesh ........................................189
F
The National Economic Council (NEC) ................................................................193
G
The National Water Resources Council (NWRC) .................................................194
H
The Ministry of Environment and Forest (MoEF) ................................................194
I
The Ministry of Water Resources (MoWR) ..........................................................195
J
Water Resources Planning Organisation (WARPO) .............................................196
K
Implementing Agencies .........................................................................................198
8
Bangladesh Water Development Board (BWDB)..........................................198
9
Local Government Engineering Department (LGED) ...................................199
IV Existing Challenges of Inland Water Pollution .............................................................200
L
Scarcity of Available Water ..................................................................................201
M Water-Sharing Problem .........................................................................................203
N
Regulatory Challenges ...........................................................................................203
O
Potential Future Challenges in a Changing Climate ..............................................204
V Opportunities to Prevent Inland Water Pollution ..........................................................208
P
Increase the Water Availability .............................................................................210
Q
Right to Water and Equitable Utilisation of Water ...............................................210
R
Water Management Through Regional Development Strategies ..........................213
VI Water-Sharing Treaties between India and Bangladesh ................................................214
S
The Agreement 1977 .............................................................................................216
T
The Ganges Treaty 1996 ........................................................................................217
U
The Teesta Water-Sharing Issues ..........................................................................221
VIIConcluding Remarks .....................................................................................................223
CHAPTER 7: CURRENT PREVENTIVE ARRANGEMENTS FOR
INLAND WATER POLLUTION IN BANGLADESH: STRENGTHS,
WEAKNESSES AND PROSPECTIVE REFORMS .........................................................225
I Introduction ...................................................................................................................225
II Major Legal and Policy Responses in Inland Water in Bangladesh .............................225
III Shortcomings of the Current Arrangements ..................................................................230
IV Regulatory Reform of Inland Water Pollution: Necessary Elements ............................238
A
Preparing Water Legislation ..................................................................................241
B
Underlying Principles and Priorities......................................................................244
C
Management Principles .........................................................................................245
1
Prevent Pollution Rather than Treat ...............................................................245
2
Apply the Precautionary and Polluter-pays Principles ...................................246
3
Introduce Water Pollution Control at the Lowest Appropriate
Level ...............................................................................................................246
4
Participatory Approach...................................................................................247
5
Promote International Cooperation on Water Pollution Control....................247
D
Institutional Arrangements ....................................................................................249
E
Enforcement of Regulations and Dispute Settlement ............................................252
V Future Initiatives for the Improvement of Inland Water Situation ................................253
F
Protection of Water Resources ..............................................................................254
6
Groundwater ...................................................................................................255
xii
7
Surfacewater ...................................................................................................256
G
Conservation and Demand Management ...............................................................258
H
Policy and Legislative Changes .............................................................................259
I
Political Consensus ................................................................................................261
VI Concluding Remarks .....................................................................................................263
CHAPTER 8: MAJOR FINDINGS AND CONCLUSION ...............................................265
I Introduction ...................................................................................................................265
II Major Findings and Conclusion ....................................................................................268
BIBLIOGRAPHY .................................................................................................................280
I Books .............................................................................................................................280
II Edited Books .................................................................................................................286
III Journal Articles ..............................................................................................................297
IV Conference Papers, Working Papers and Reports .........................................................304
V UN Documents ..............................................................................................................310
VI Internet Materials...........................................................................................................312
VIIOthers ............................................................................................................................317
xiii
LIST OF FIGURES
Figure 2.1: Global Availability of Water ............................................................ 25
Figure 2.2: Regional Distribution of Water Resources ....................................... 27
Figure 2.3: River System and Hydrologic Regions of Bangladesh .................... 31
Figure 2.4: Monthly Distribution of Rainfall in a Normal Year ......................... 38
Figure 2.5: Change in Depth to Groundwater in January from 1997.................. 42
Figure 3.1: Groundwater Table Hydrograph from Ground Surface; Dhaka City
(NC Region, BWDB, 2004) ............................................................... 61
Figure 3.2: Alarming Concentration Level of Aluminium (Al), Cromium (Cr)
and Ferum (Fe) in Topsoil of Some Parts of the NC Region ............. 62
Figure 3.3: Major Consequences of Reduction of Dry Season Water Flow ....... 65
Figure 4.1: Simple Visual Conceptualisation of Adaptive Management .......... 105
Figure 4.2: Three Pillars Of IWRM: Enabling Environment, Institutional
Framework and Management Instruments (TAC Background Paper
No 10, GWP).................................................................................... 115
Figure 4.3: Cross-Sectoral Integration of IWRM ............................................. 117
xiv
LIST OF TABLES
Table 2.1: Regional Water Balances of Bangladesh (NWMP 2001) .................. 32
Table 2.2: Surfacewater Resources in Bangladesh ............................................. 37
Table 2.3: Rainfall of Bangladesh in mm ........................................................... 37
Table 2.4: Peak and Lean Flow in the Major Rivers........................................... 39
Table 2.5: Surfacewater Storage in Bangladesh ................................................. 40
Table 2.6: Region-Wise Number of Polluting Industries (UNEP, 2001) ........... 48
Table 2.7: Sequence of Water Pollutant Sources and Their Impacts .................. 55
Table 3.1: Variation of Availability of Inland Water in Different Hydrological
Region. ............................................................................................... 67
Table 3.2: Guideline Value of Nine Parameters (All Values in mg/L) ............... 70
Table 3.3: Bangladesh Drinking Quality Standards Value of 15 Parameters (All
Values in mg/L).................................................................................. 71
Table 3.4: WQS: Bangladesh (All Values in mg/L) ........................................... 72
Table 6.1: List of Legislation Related to Inland Water Pollution and
Environmental Conservation in Bangladesh .................................... 177
Table 6.2: Responsibilities of Major Government Organisations to Control
Inland Water Pollution ..................................................................... 192
Table 6.3: Population Growth and Annual Per Capita Water Availability ....... 202
Table 6.4: Implications of Climate Change for the Water Sector ..................... 206
Table 6.5: Types of Cooperation and Benefits of Transboundary Rivers ........ 209
Table 6.6: Ganges Water-Sharing ..................................................................... 219
Table 7.1: Regulatory Frameworks to Address the Inland Water Pollution
Problems........................................................................................... 229
Table 7.2: Future Concerns Regarding National Policies and Water PollutionRelated Issues ................................................................................... 230
xv
LIST OF CASES
PCIJ AND ICJ CASES
1. The Territorial Jurisdiction of the International Commission of the Oder River
(Britain v Northern Ireland) (Judgement) [1929] PCIJ (Ser A) No 23
2. Diversion of Water from the Meuse Case (Netherlands v Belgium) (Judgement)
[1937] PCIJ (Ser A/B) No 70
3. Corfu Channel Case (Great Britain and Northern Island v Albania) (Judgement)
[1949] ICJ Rep 4
4. Continental Shelf Case (Libyan Arab Jamahiriya v Malta) (Judgement) [1985]
ICJ Rep 13
5. Gabčíkovo v Nagymaros Project (Hungary v Slovakia) (Judgement) [1997] ICJ
Rep
6. Navigational and Related Rights on San Juan River (Costa Rica v Nicaragua)
(Judgement) [2009] ICJ Rep
7. Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgement) [2010] ICJ
Rep 14
INTERNATIONAL ARBITRAL TRIBUNAL
1. Trail Smelter Case (United States of America v Canada) (Awards) (1941) 3 UN
Reports of International Arbitral Awards 1907
2. Lake Lanoux Arbitration Case (Spain v France) (1957) 24 International Law
Reports 101
3. The Faber Case (Germany v Venezuela) (Awards) (1903) UN Reports of
International Arbitral Awards X
OTHER CASES
1. Dr M Farooque v Secretary, Ministry of Communication, Government of the
People’s Republic of Bangladesh and 12 Others (Unreported)
2. Khushi Kabir and Others v Government of Bangladesh (2000) Writ Petition no
3091
3. Sharif N Ambia v Bangladesh (1995) Writ Petition no 937
4. M Farooque v Bangladesh (1997) Writ Petition no 948
xvi
5. Bulankulama v The Secretary, Ministry of Industrial Development (2000) Vol 7,
No 1 (Sri Lankan Supreme Court) 85
6. Shehla Zia and others v WAPDA (1992) Case No 15-K (Pakistan Supreme
Court)
7. Dr Mohiuddin Farooque v Bangladesh and Others (1995) Writ Petition no 300
(Vehicular pollution case)
8. Kansas v Colorado 185 US 125 (1902) (Diverting water from the River
Delaware)
9. New Jersey v New York 283 US 805 (1931) (Jurisdiction over inter-state water
controversies of the Arkansas River)
10. Connecticut v Massachusetts 282 US 660 (1931) (Protect the flow of water in the
Connecticut River)
11. Nebraska v Wyoming 325 US 589 (1945) (Equitable apportionment between the
states of the water of the North Platte River)
12. Wurttemberg v Baden (1927), Annual Digest of Public International Law Cases
(1927–28) 1931 (Dispute concerning the utilisation of the waters of river
Danube)
xvii
LIST OF INTERNATIONAL WATER LAW INSTRUMENTS
INTERNATIONAL AND REGIONAL CONVENTION/RULES/REGULATIONS/RESOLUTIONS
1. International Regulation on River Navigation 1887.
2. International Resolutions Regarding the Use of International Watercourses for
the Purposes other than Navigation 1911.
3. Convention on the Regime of Navigable Waterways of International Concern
1921.
4. Regulation Governing Navigation on International Rivers 1934.
5. Base Rules of Law Concerning the Uses of International Rivers 1956.
6. Resolution on the Use of the Waters of International Rivers 1958.
7. Recommendations on the Procedures Concerning the Non-Navigational Uses
1960.
8. Helsinki Rules on the Uses of the Waters of International Rivers 1966.
9. United Nations Convention on the Law of the Non-Navigational Uses of
International Watercourses 1997.
10. Berlin Rules on Water Resources 2004.
INTERNATIONAL AND REGIONAL WATER-RELATED CONFERENCE AND DECLARATION
1. Declaration of the United Nations Conference on the Human Environment,
Stockholm (16 June 1972).
2. United Nations Mar del Plata Water Conference Declarations and Resolutions
(1977).
3. Dublin International Conference Declaration on Water and the Environment (1992).
4. 1992 Rio Declaration on Environment and Development (14 June 1992).
5. International Law Association New Delhi Declaration on the Principles of
International Law Relating to Sustainable Development (2002).
6. United Nations General Assembly Resolution on International Decade for Action
(2003) ‘Water for Life 2005–2015’.
xviii
LIST OF ACRONYMS
ADB
Asian Development Bank
AWM
Adaptive Water Management
BARI
Bangladesh Agricultural Research Institute
BBS
Bangladesh Bureau of Statistics
BCM
Billion Cubic Meter
BCSIR
Bangladesh Council for Scientific and Industrial Research
BEMP
Bangladesh Environmental Management Project
BOD
Biological Oxygen Demand
BWDB
Bangladesh Water Development Board
BWFMS
Bangladesh Water and Flood Management Strategy
CEA
Country Environmental Analysis
CEGIS
Center for Environmental and Geographic Information Services
CIL
Customary International Law
COD
Chemical Oxygen Demand
DFID
Department for International Development
DG
Director General
DO
Dissolved Oxygen
DoE
Department of Environment
DoF
Department of Fisheries
DPHE
Department of Public Health Engineering
DRBMP
Danube River Basin Management Plan
DWASA
Dhaka Water Supply and Sewerage Authority
ECNEC
Executive Committee of the National Economic Council
ECNWRC
Executive Committee of the National Water Resources Council
EIA
Environment Impact Assessment
xix
EPWAPDA
East Pakistan Water and Power Development Authority
EU
European Union
FAO
Food and Agricultural Organisation
FD
Forest Department
GBM
Ganges-Brahmaputra-Meghna
GDP
Gross Domestic Product
GWP
Global Water Partnership
GWTF
Groundwater Task Force
IABA
Inter-American Bar Association
IAWL
International Association for Water Law
IBRD
International Bank for Reconstruction and Development
ICJ
International Court of Justice
ICWE
International Conference on Water and the Environment
IGO
Intergovernmental Organisation
IIL
Institute of International Law
ILA
International Law Association
ILC
International Law Commission
INGO
International Non-governmental Organisations
IUCN
Conservation of Nature and Natural Resources
IWM
Institute of Water Modelling
IWRA
International Water Resources Association
IWRM
Integrated Water Resource Management
JPoI
Johannesburg Plan of Implementation
JRC
Joint Rivers Commission
LGED
Local Government Engineering Department
MAF
Million-Acre Feet
xx
MDGs
Millennium Developments Goals
MoEF
Ministry of Environment and Forest
MOI
Ministry of Industries
MoU
Memorandum of Understanding
MoWR
Ministry of Water Resources
MPAP
Mar del Plata Action Plan
MPO
Master Plan Organisation
MRC
Meekong River Commission
NBI
Nile Basin Initiative
NDWQS
National Drinking Water Quality Survey
NEC
National Economic Council
NEMAP
National Environment Management Action Plan
NEP
National Environment Policy
NPK
Nitrogen Phosphorus and Potassium
NWL
National Water Law
NWMP
National Water Management Plan
NWP
National Water Plan
NWPo
National Water Policy
NWRC
National Water Resources Council
NWRD
National Water Resources Database
PCIJ
Permanent Court of International Justice
POPs
Persistent Organic Pollutants
RRI
River Research Institute
SAARC
South Asian Association for Regional Cooperation
SD
Sustainable Development
SEA
Strategic Environmental Assessment
xxi
SIDA
Swedish International Development Agency
SIWI
Stockholm International Water Institute
TDS
Total Dissolved Substances
TSS
Total Suspended Substances
TWO
Transboundary Waters Opportunity
UN
United Nations
UNCED
United Nations Conference on the Environment and Development
UNCHE
United Nations Conference on the Human Environment
UNDP
United Nations Development Programme
UNECE
United Nations Economic Commission for Europe
UNECEWC
Convention on the Protection and Use of Transboundary
Watercourses and International Lakes 1992
UNEP
United Nations Environment Program
UNESCO
United Nations Educational Scientific and Cultural Organisation
UNGA
United Nations General Assembly
UNMDG
United Nations Millennium Development Goal
UNWC
United Nations Convention on the Non-Navigational Uses of
International Watercourses 1997
USAID
United States Agency for International Development
WARPO
Water Resources Planning Organisation
WB
World Bank
WCED
World Commission on Environment and Development
WHO
World Health Organisation
WQS
Water Quality Standard
WSSD
World Summit on Sustainable Development
WWC
World Water Council
WWF
World Water Forum
xxii
CHAPTER 1: INTRODUCTION
I
INTRODUCTION
Water as a natural resource of immense importance, symbolises life on Earth and
constitutes the core component of the environment.1 Throughout human civilisation,
water resources have been regarded as a fundamental necessity for both
physiological and socioeconomic life. 2 Water resources are used for a variety of
significant purposes, among them domestic, irrigation, navigation, hydroelectric
power generation, industrial manufacturing, recreation and surprisingly also waste
disposal.3
Inland water is a very important source for water resources and subsequently a
fundamental element of the environment, vital to the lives and wellbeing of billions
of people4 and essential for socioeconomic development and ecological stability of a
country. It is a natural resource 5 on which all living beings are directly and
ecosystems 6 are indirectly dependent. 7 Inland water resources include the rivers,
lakes, natural wetlands, groundwaters and reservoirs of a country. Transboundary
water resources 8 are another source of inland water in which the watercourses
generally crosses two or more different countries and are therefore international in
character.9 For the purpose of this thesis, inland water is defined as a combination of
surface and groundwaters of a country and an international watercourse that crosses
1
Igor A Shiklomanov, ‘Appraisal and Assessment of World Water Resources’ (2000) 25(1) Water
International 11, 11.
2
Christopher L Kukk and David A Deese, ‘At the Water’s Edge: Regional Conflict and Cooperation
Over Freshwater’ (1996) 1 UCLA Journal of International Law & Foreign Affairs 21, 21.
3
Asit K Biswas, ‘Water for the Third World’ (1981) 60(1) Foreign Affairs 148, 148.
4
David Stephenson, Water Resources Management (Balkema, 2003) 1.
5
Natural inland water resources include rivers, lakes, groundwater, aquifers and glaciers.
6
An ecosystem is a natural unit comprising plants, animals and micro-organisms (biotic factors) in an
area functioning together with all of the non-living physical (abiotic) factors of the environment.
7
Philippe Cullet, ‘Right to Water in India: Plugging Conceptual and Practical Gaps’ (08 January
2012)
The
International
Journal
of
Human
Rights
<http://www.tandfonline.com/doi/pdf/10.1080/13642987.2012.700454>.
8
For the purpose of this thesis, the terms ‘transboundary water resources’, ‘international
watercourse’, ‘international water resource’ and ‘international river’ have been used interchangeably
to mean the main source of inland water.
9
United Nations Convention on the Law of the Non-navigational Uses of International Watercourses
(1997) 36 ILM 700 art 2.
1
or is located on boundaries between two or more different states, eventually flowing
into the ocean.10
There are various factors individually and collectively responsible for inland water
pollution. Domestic and industrial wastes, pesticides, agricultural runoff and
contaminated groundwater are some of the major sources of inland water pollution in
Bangladesh, while upstream withdrawal and diversion of flow, insufficient rainfall
during winter and irrigation also have impacts.11 Groundwater, which is regarded as
the best source of drinking water in Bangladesh, is not up to the standards required
for human consumption in many parts of the country. The country has an agrarian
economy, but the relative importance of agriculture has been gradually declining,
while that of the service and industrial sectors has been increasing.12
Sustainability practices and the sustainable use of water could be regarded as a safe
guard for inland water pollution. The proper utilisation of inland water resources is
an emerging issue that demands national, regional and international concerns as they
are important in safeguarding quality of life and in promoting Sustainable
Development (SD).13 The term ‘sustainable’ infers conservation and or maintenance
of the existing status quo, while ‘development’ implies growth, with a dynamic
element that can be improved standards of living and greater capacity for selfreliance in economies.14 Thus, SD is regarded as more than achieving a compromise
between two opposing elements.15 In developing countries, the concept of SD and
the environmental or ecological debt owed to future generations is often difficult to
10
United Nations Convention on the Protection and Use of Transboundary Watercourses and
International Lakes UN Doc ENWA/R.53 (17 March 1992) art 1.
11
Discussed in Chapter 2 VII.
12
Ahsan Uddin Ahmad, ‘Living in the Downstream: Development in the Peril’ in M Monirul Qader
Mirza, Ahsan Uddin Ahmed and Qazi Kholiquzzaman Ahmad (eds), Interlinking of Rivers in India:
Issues and Concerns (CRC Press, 2008) 153, 155.
13
Sustainable development is a development that meets the needs of the present without
compromising the ability of future generations to meet their own needs. It has three components:
environment, society and economy. See Report of the World Commission on Environment and
Development: Our Common Future, UN Doc A/42/427 (1987) annex. Discussed in Chapter 4 II A.
14
J Remenyi, ‘What is Development?’ in D Kingsbury et al (eds) Key Issues in Development
(Palgrave Macmillan, 2004) 22, 22.
15
Michael Redclift, Sustainable Development: Exploring the Contradictions (Methuen Press, 1987)
199.
2
realise given their current socioeconomic positions.16 Generally, the poorer classes
have a tendency to prioritise the more immediate economic and social dimensions of
sustainability rather than the longer term environmental dimensions. Therefore, the
question of satisfying needs versus longer term SD is one of the main dilemmas
surrounding the development agenda.17
The world faces formidable challenges to meet up the increasing demands for water,
failing water quality, environmental pollution and associated impacts, and
international conflicts over transboundary water resources.18 The depletion of inland
water resources19 is considered one of the major challenges human civilisations is
facing for the 21st century.20 Quality and quantity of inland water is deteriorating due
to over consumption and mismanagement of resources. Population growth and
increasing standards of quality of life have an impact in this regard. These situations
are greatly influencing the sustainable management perspective of inland water
resources.
Inland water resources are particularly crucial to a developing country like
Bangladesh.21 The country is gifted in abundance with rain and river water, but is in
a grave situation regarding the availability of pure and sufficient water for drinking,
household purposes, agriculture and fisheries. 22 Rivers, wetlands and the seasonal
monsoon flooding are the lifeblood of Bangladesh. Wetlands are crucial in
maintaining aquatic biodiversity and work as water catchments, and rivers are
broader sources of irrigation, navigation and other intrinsic uses. However, the
16
Rajendra Ramlogan, Sustainable Development: Towards a Judicial Interpretation (Martin Nijhoff,
2011) 25.
17
Ibid.
18
Alfred M Duda and Mohamed T El-Ashry, ‘Addressing the Global Water and Environment Crises
through Integrated Approaches to the Management of Land, Water and Ecological Resources’ (2000)
25(1) Water International 115,115.
19
Groundwater is depleting in most of the urban areas and rivers are dying because people are
dumping wastes to minimise cost and expedite convenience without any obligation of compliance
with laws.
20
Aaron T Wolf, ‘The Transboundary Freshwater Dispute Database Project’ (1999) 24(2) Water
International 160, 160.
21
Bangladesh is a South Asian country situated on the largest delta plain in the world at the
confluence of the Ganges, Brahmaputra and Meghna (GBM) river system.
22
M Inamul Haque, Water Resources Management in Bangladesh (Anushilan, 2008) 20.
3
availability of freshwater is highly seasonal
23
and the country is extremely
vulnerable to climatic manifestations (short and long-term impacts of climate
change). These are due to its unique geographic location, hydro-geological
characters like dominance of floodplains and the socioeconomic conditions like high
population density, endemic poverty and overwhelming dependence on nature. 24
Bangladesh has significant inland water resources, but the people are not able to
appropriate the optimum benefit out of these,25 because of increasing population and
ever-expanding economic activities.
26
The dilemma lies in the inability for
Bangladesh to retain a constant supply of water resources for public needs as one
year the country may be rewarded with adequate water, while in other years remain
helpless in meeting minimum demand. As a result, the dilemma significantly affects
the sustainable management and development of water resources. For example,
annual per capita availability of water is abundant during the rainy season. On the
other hand, water scarcity causes serious adverse impacts on the lives and living
conditions of millions of people during the dry season, because the country has very
limited capacity 27 to explore and develop all the elements that are currently
detracting from the management of sustainability measures. The quality of inland
water deteriorating due to unsustainable management is one of the main reasons of
inland water pollution, but more so due to multiple other sources.28 In overcoming
the situation, an effective regulatory regime is necessary, which will contribute to
improve water management as well as quality of inland water to maximise social,
economic and environmental benefits.
23
Nasima Tanveer Chowdhury, ‘Water Management in Bangladesh: An Analytical Review’ (2009) 12
Water Policy 32, 32.
24
Salahuddin M Aminuzzaman, ‘Environment Policy of Bangladesh: A Case Study of an Ambitious
Policy with Implementation Snag’ (Paper presented at the South Asia Climate Change Forum,
Monash Sustainability Institute, Monash University, Australia, 5–9 July 2010) 2.
25
T Murphy and J Guo (eds), Aquatic Arsenic Toxicity and Treatment (Backhuys Publishers, 2011) 1,
17.
26
Q K Ahmad, ‘Towards Poverty Alleviation: The Water Sector Perspective’ (2003) 19 (2) Water
Resources Development 263, 264.
27
Different limitations include financial, institutional, legal and political.
28
Discussed in Chapter 2 VI.
4
II BACKGROUND OF THE RESEARCH
Inland water is a major natural resource that has a profound impact on public health,
economic activities and environment.
29
The growing water scarcity and
unsustainable utilisation of inland water pose serious threats to the environment in
general and livelihood in particular. New strategies are urgently needed to avoid
acute national, regional and local level water scarcities that may affect food
production, dry out the household and industrial sectors, damage the environment,
and escalate water-related health problems.30 Various legal and policy frameworks
have been developed to address the sustainable management of inland water
resources. In order to control inland water pollution, several legal and policy
initiatives have been undertaken at international, regional and national levels. These
initiatives have addressed the sustainable management of water resources and have
thus significantly contributed to protect and preserve the quality of inland water.
In the last three decades, the United Nations (UN) and other international
organisations devised a set of standards for protecting water from pollution. In 1972
the UN Conference on the Human Environment (UNCHE) 31 established the UN
Environment Program (UNEP) to address the water-related environmental problems
of the world.32 From 1972 to 2002, action plans directly or indirectly intended to
protect inland water from pollution were proposed and accepted in universal
summits.33 The UN Conference on the Environment and Development (UNCED) in
1992 (Agenda 21, Chapter 18) noted that a right to water entails three elements:
access, quality and quantity, going beyond the ‘general objectives … to make certain
that adequate supplies of water of good quality are maintained for the entire
29
G J Alaerts, ‘Institutional Arrangements’ in Richard Helmer and Ivanildo Hespanhol (eds), Water
Pollution Control: A Guide to the use of Water Quality Management Principles (E & FN Spon, 1997)
219, 219.
30
Mark W Rosegrant, ‘Water Resources in the Twenty-First Century: Challenges and Implications for
Action’ (Discussion Paper No 20, International Food Policy Research Institute, Washington, March
1997) 1.
31
The UNCHE was held in Stockholm, Sweden, from 5 June to 16 June 1972. Representatives from
113 countries as well as representatives from many international non-governmental organisations,
intergovernmental organisations and many other specialised agencies were present. This conference
laid the foundation for environmental action at an international level.
32
P Wensely, ‘Global Trends: The Emergence of International Environmental Law’ in Ben Boer et al
(eds) Environment Outlook Law and Policy (1994) 7.
33
Discussed in Chapter V III.
5
population of this planet.’34 An integrated approach is promoted throughout Chapter
18, which emphasises the three elements of SD as equally important; water is to be
viewed as ‘a natural resource and a social and economic good, whose quantity and
quality determine the nature of its utilisation’. 35 The necessity of applying an
integrated approach to water resources management36 and the need for strategies for
the environmentally sound management of inland water, including improvement of
water quality, was recognised at the 1992 Rio Conference37 and was also addressed
at the 2nd World Water Forum (WWF).38
The Hague Ministerial Declaration of March 2000 adopted seven challenges to guide
future action with respect to the sustainable use of inland water resources.39 They
are: 1) meeting basic needs, for safe and sufficient water and sanitation, 2) securing
the food supply, especially for the poor and vulnerable through the more effective
use of water, 3) protecting ecosystems, ensuring their integrity via sustainable water
resource management, 4) sharing water resources, promoting peaceful cooperation
between concerned states, through approaches such as sustainable river basin
management, 5) managing risks, to provide security from a range of water-related
hazards, 6) valuing water, to manage water in light of its different values (economic,
social, environmental, cultural) and to move towards pricing water to recover the
costs of service provision, taking account of equity and the needs of the poor and
vulnerable, and 7) governing water wisely, involving the public and the interests of
all stakeholders. These seven challenges form the basis for monitoring progress in
the sustainable use of inland water resources.
The 3rd WWF declared water as a precious and finite resource and a driving force for
SD, economic growth and social stability.40 Forum statements identified key water
34
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc
A/CONF.151/26 (14 June 1992) para 18.2.
35
Ibid para 18.18.
36
Discussed in Chapter 4 II B.
37
38
Agenda Item 21, above n 34, para 18.38.
2nd World Water Forum, the Hague, March 2000.
39
The World Water Development Report: ‘Water for People, Water for Life’, Executive Summary,
(launched
22–03–03
during
World
Water
Forum)
(01
June
2008)
<http://www.unesco.org/new/en/natural-sciences/environment/water/wwap/wwdr/wwdr1–2003/>.
40
3rd World Water Forum held in Kyoto, Japan from 16–23 March 2003.
6
issues41 and the ministerial declarations also stated that developing countries need to
work with the aim of mounting an Integrated Water Resource Management (IWRM)
and water efficiency plan by 2005. Countries need to be promoting demand
management measures and endeavour to develop and deploy non-conventional water
resources. The 5th WWF 42 acknowledged that the world is facing major global
changes, 43 which have a direct negative impact on water resources. These global
changes are seriously threatening water availability and quality. Therefore, new
policies,
institutional
reforms,
international
commitments,
technological
development and innovation are urgently needed in order to address water issues and
adapt water management strategies. Ministerial declarations of this forum aim to
improve governance of the water sector at the national level by: promotinginstitutional water management reform, strengthening water sector laws and
regulatory frameworks, increasing and ensuring accountability and effective
enforcement and participating all water stakeholders in decision making.
The 6th WWF44 agreed that there are interlinkages between water, energy and food
security. The forum devised priorities to ensure full policy coherence and productive
water-related ecosystems with a view to avoiding adverse consequences across
sectors as a basis for sustainable growth. Ministerial declarations of this forum
targeted the incorporation of water in all its economic, social and environmental
dimensions in a framework of governance, financing and cooperation, taking into
account the progress achieved towards the Millennium Developments Goals (MDGs)
by 2015 and beyond. For the specific needs of developing countries and the least
developed among them, the forum mentioned that the primary responsibilities of the
government’s concerned special focus—in terms of adequate, predictable and
sustainable financial resources, capacity building and technology transfer—is to
41
Issues included but are not limited to safe and clean water for all, capacity building, governance,
regional priorities, global awareness, political support and local actions.
42
Over 30,000 participants from 182 countries around the globe took part in 5 th World Water forum
held on 16–22 March 2009 in Istanbul, Turkey.
43
Major global changes include rapid population growth, uncontrolled and unhealthy urbanisation,
economic expansion and climate change.
44
This was the last meeting held in Marseille, France on 12–17 March 2012. Ministers and heads of
delegations welcome the results, ‘Time for Solutions’.
7
achieve internationally agreed goals, especially on IWRM and access to safe
drinking water.45
In line with international legal developments, Bangladesh has promulgated policies
and enacted legislations as a framework for the protection of inland water resources
from pollution. The Constitution of Bangladesh does not explicitly provide for the
right to a healthy environment, but Article 31 and 32 set out the fundamental ‘right
to life’,46 and the Supreme Court, the interpreter of the Constitution, has liberally
interpreted the constitutional ‘right to life’ as extending to the right to a safe and
healthy environment 47 and, including anything that affects life, public health and
safety.48
Legislation for the control, prevention and abatement of water pollution in
Bangladesh dates back to the East Pakistan Water Pollution Control Ordinance
1970,49 which was replaced by the Environmental Pollution Control Ordinance 1977
and is considered the first regulatory legislation of this kind of the country. 50 The
government revised the old laws 51 by enacting the Bangladesh Environment
Conservation Act (1995) 52 and the Environment Protection Act (EPA) 1995. 53
Although various legislations have been enacted to deal with inland water pollution,
the question remains as to their implementation due to inadequate legal provision
and institutional weaknesses. For example, the Environment Impact Assessment
(EIA) process is not fully operational and is not adequately enforced against
45
Ministerial Declaration of 6th World Water Forum para 29.
46
Article 31 states that every citizen has the right to protection from ‘action detrimental to the life
liberty, body, reputation or property’. Article 32 states: ‘No person shall be deprived of life or
personal liberty saves in accordance with law’.
47
Dr. Mohiuddin Farooque v Bangladesh and Others (1995) WP No 300.
48
Dhaka Law Reports (1996) (48), 438. Right to life includes ‘the enjoyment of pollution free water
and air, improvement of public health’.
49
East Pakistan Ordinance no V of 1970, Government of Pakistan.
50
Alexandra Clemett, ‘A Review of Environmental Policy and Legislation in Bangladesh’ (Research
Report, Section 2, Department for International Development, UK, 2004) 4.
51
S Momtaz, ‘Environmental Impact Assessment in Bangladesh: A Critical Review’ (2002) 22
Environmental Impact Assessment Review 163, 165.
52
Act No 1 of 1995.
53
The EPA 1995 was enacted ‘to provide for conservation, improvement of environment standards
and to control and mitigate the pollution of the environment’ (preamble).
8
polluters in Bangladesh due to the lack of institutional requirements. 54 The EPA
1995 empowers the implementation of EIA with discretionary rather than mandatory
provisions. As an assessment process, EIAs determine the cause and effect
relationships and predict the impact of proposed activities.55
The Ministry of Environment and Forest (MoEF) was established in 1989 to address
the emerging environment-related issues, and the government of Bangladesh started
to enact environmental laws in response to the national conservation strategy. The
Department of Environment (DoE) of the MoEF in Bangladesh has a mandate to
regulate and enforce environmental regulations, including regulations for the control
of inland water resources. However, in most cases the service of DoE remains
limited to issuing toothless cautionary notices.56
The Ministry of Water Resources (MoWR) is the apex body of the government of
the People’s Republic of Bangladesh for the development and management of the
water resources of the country. The Ministry also has an implementing arm called
the Bangladesh Water Development Board (BWDB) and a macro-planning arm
named the Water Resources Planning Organisation (WARPO). WARPO is the major
institution involved in water resource management. This institution is responsible for
national water planning, monitoring, formulation of water legislation and regulations,
inter-sectoral coordination of water plans and for maintaining the central data
system.57
The Ministry’s research and coordinating institutions such as River Research
Institute (RRI) and the Joint Rivers Commission (JRC), acts as the secretariat of the
Ministry for dealing with the sharing and management of the waters of the
transboundary rivers. The Ministry58 formulates policies, plans, strategies, guidelines,
instructions as well as acts, rules and regulations relating to the development and
54
E Habib, Management of Fisheries, Coastal Resources and the Coastal Environment in Bangladesh
(International Centre for Living Aquatic Resources Management, Manilla, Philippines, 1999) 95.
55
Daud Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution, Towards
Effective International Cooperation (Ashgate publishing, 2006) 68.
56
Ibid 19.
57
Aminuzzaman, above n 24, 8.
58
Discussed in Chapter 6 III I.
9
management of water resources, and regulation and control of the institutions
reporting to it.
The National Environment Policy (NEP) was formed in 1992 and emphasises the
need for the ratification of relevant international documents. 59 Two phases of the
National Water Plan (NWP) were developed between 1986–1991, mainly focused on
the assessment of water resources and future demand by different users. 60 These
strategies encompass issues of environmental protection from pollution but are not
specific to inland water pollution, and the application of NEP and NWP is very broad.
The National Water Policy (NWPo) adopted by the MoEF describes principles and
directions for water planning and utilisation towards fulfilling the national goals of
the entire population, as well as the protection of the natural environment. 61
Although NWPo ignores the impact of anticipated climate change and sea level rises
on the country’s water resources, it emphasises decentralisation of water
management, yet local government institutions have not been established
accordingly.
A National Water Management Plan (NWMP) covering 2000–2025 was approved
by the National Water Resources Council in 2004 62 and drafted the Bangladesh
Water Act 2009. The preparation of a Water Action Plan has emphasised the four
fundamental principles, known as the Dublin principles, 63 adopted at the UN
conferences. Further, a National Environment Management Action Plan (NEMAP)
59
Government of People’s Republic of Bangladesh, ‘Environment Policy 1992’ (Ministry of
Environment and Forest) 6.
60
AQUASTAT,
FAO’s
Information
System
in Water
and
Agriculture
<http://www.fao.org/nr/water/aquastat/countries_regions/bangladesh/index.stm>.
61
(2010)
Ahmad, above n 26, 277.
62
Golam Rasul and A K M Jahir Uddin Chowdhury, Equity and Social Justice in Water Resource
Management in Bangladesh (International Institute for Environment and Development, 2010) 6.
63
Guiding principles are: 1. Freshwater is a finite resource vulnerable to human activities, essential to
sustain life, development and environment; 2. Water development and management should be based
on a participatory approach, involving users, planners and policy-makers at all levels; 3. Water has an
economic value in all its competing uses and should be recognised as an economic good; 4. Women
must play a central part in the provision, management and safeguarding of water. See also H. Larsen
and N.H. Ipsen, ‘Framework for Water Pollution Control’ in Richard Helmer and Ivanildo Hespanhol
(eds), Water Pollution Control A Guide to the Use of Water Quality Management Principles (E & FN
Spon, 1997) 275, 276.
10
was prepared. According to the plan, there are a number of ministries64 involved in
implementation. The ambiguity and overlapping responsibilities in the law
determining the authority over inland water pollution control is acting as a bar to the
effective interagency and inter-ministerial coordination in implementing the plan.
In general, a legal and policy framework to control inland water pollution exists in
Bangladesh. The country has succeeded in developing legislation and institutions
that incorporate some modern concepts of conservation and natural resource
management. However, these initiatives
often remain unimplemented or
inadequately implemented for several reasons.65 Principal reasons are the inability to
mobilise sufficient public interest and participation, not providing cross-sectoral
importance or national consensus on policies and the nature of inter-relationships
between national and local institutions involved in the implementation of such
legislation and policies. Various obstacles such as inadequate legal provisions,
institutional weaknesses (including lack of capacity) and strategic and financial
constraints are also affecting to implement existing legal regime to control inland
water pollution adequately.
The above discussion annunciates the issues and efforts that are required for
effective inland water pollution control,66 which includes the development of legal
regimes, extensive consultation with relevant institutions and interest groups,
adequate resources and massive awareness of the public. To establish an effective
inland water pollution control regime, the present arrangements should be reviewed
and more comprehensive legal and policy mechanisms need to be developed.
III THESIS STATEMENT
The thesis focuses on the importance of protecting inland water from pollution. The
research explores the causes of Bangladesh’s failure to achieve protection of inland
water resources. It also explores the role of legal regulation as part of the solution.
The research identifies and analyses the strengths, weaknesses and opportunities of
64
Ministry of Planning, Ministry of Environment and Forest and Ministry of Industries are few of
them.
65
Donald Kaniaru and Lal Kurukulasuriya, ‘Capacity Building in Environmental Law’ in Sun L and
Kurukulasuriya L (eds) UNEP’s New Way Forward: Environmental Law and Sustainable
Development (UNEP, 2001) 171, 172.
66
Effectiveness is the capability of producing a desired result. It refers to the mechanisms set forth to
ensure its implementation and ensure the achievement of objectives.
11
present legal regimes for the control of inland water pollution in Bangladesh. The
research also investigates the reasons for shortcomings and proposes a
comprehensive legal approach to the solution of the problem.
IV OBJECTIVE OF THE THESIS
The main objective of the thesis is to understand legal measures enacted in
Bangladesh to protect inland water from pollution. The research evaluates the
application and shortcomings of the present regimes of inland water pollution control
in Bangladesh and suggests ways to improve outcomes. Specifically, the thesis aims
to:

examine the sources of inland water pollution and its impact on the
environment;

analyse international, regional and national laws and policies that address
inland water pollution;

examine the strengths and weaknesses of the statutory framework of inland
water pollution laws in Bangladesh;

identify and address the obstacles in implementing regulations in Bangladesh
as a developing country;

explore the reason for inadequacies of Bangladesh’s current laws on inland
water pollution;

suggest a comprehensive approach for the solution of the problem based on
an effective arrangement.
V RATIONALE AND IMPORTANCE OF THE STUDY
The government of Bangladesh has taken some important steps towards meeting the
challenges of inland water management. These initiatives include implementation,
procedure of existing laws, making changes to overcome the shortcomings and
ensuring adequate institutional and policy support where necessary. In addition, civil
activism with respect to water issues is developing strongly. 67 The government
67
Although, there are many NGOs working in Bangladesh with environmental interests, the
Bangladesh Environmental Lawyers Association (BELA) is the pioneer organisation working in the
area of environment since its establishment in 1992. It is a lobbying body that also provides assistance
to the government in drafting environmental legislation and drives public-interest litigation on
12
policies and plans outline the country’s priorities and describe how those priorities
will be achieved, and indicate that water sector institutions must have a legal and
regulatory framework under which they will operate. 68 The legal and regulatory
framework generally specifies the rights, powers and duties of individual users and
the government with respect to water. These are all necessary precursors to dealing
effectively with the pollution of inland water resources.
Solutions to water problems depend not only on water availability but also on many
other factors such as the appropriateness of the existing legal frameworks and their
stages of implementation, availability of investment funds, the social and
environmental conditions of the country and levels of available and productive
technology.69 As discussed earlier, some national arrangements are already directed
towards inland water pollution control; however, due to inadequate legal provisions
and institutional weaknesses, questions remain as to their efficacy. 70 Various
obstacles are affecting pollution control activities and capacity building efforts in
Bangladesh. 71 The country also has many disadvantages that are real barriers in
dealing with water pollution control, not limited to poverty, incapacity, economic
incentives and regional conflict.72
The research conducted on the issue of inland water pollution in Bangladesh is
inadequate. Articles by environmentalists, jurists and academics discuss the
necessity for the protection of inland water, but there is a gap in the literature with
respect to research on legislation and implementation of inland water pollution laws
in Bangladesh. Although some literature has been found that may have indirect
environmental matters before the courts. In 2003, in recognition of its environmental achievements,
BELA was placed in the ‘Global 500 Roll of Honour’ of the UNEP. In 2007, BELA received the
prestigious ‘Environmental Prize’ from the Bangladeshi government for its efforts in protecting the
environment in Bangladesh.
68
Rashid Faruqee, ‘Bangladesh Water Sector Review’ (Report, Asian Development Bank, November
2003) 9.
69
Asit K Biswas, ‘Integrated Water Resources Management: A Reassessment’ (2004) 29 Water
International 248, 256.
70
Hassan, above n 55, 168.
71
Capacity building requires a systematic analysis that includes the development of policies and
strategies, the preparation and enforcement of laws, regulations and introduces new analytical tools,
such as national environmental profiles and indicators, community involvement, technology
development and transfer.
72
Discussed in Chapter 3 V.
13
relevance or partial relation to the present study, the effects of legal regulation on
inland water pollution issue is not comprehensively covered by any existing
literature.
Legislation directly or indirectly related to protection of inland water pollution is
present in Bangladesh. These include the Irrigation Act 1876,
73
Pesticides
Ordinance 1971,74 Environment Pollution Control Ordinance 1977,75 Environmental
Conservation Rules, including the Water Quality Standards (WQS),76 Environment
Conservation Act 1995,77 EIA Guidelines for Industries 199778 and the Environment
Court Act 2000. 79 These legislative frameworks in Bangladesh, however, include
issues of inland water pollution. Existing national legislation may establish a basis
for protecting inland water from pollution but further work is required to design a
comprehensive legal framework and devise measures of the implementation of such
laws.
‘Regulatory frameworks for water resources management—A comparative study’ by
Salman M A Salman and Daniel D Bradlow (2006)80 is a recent and comprehensive
study that has examined the regulatory frameworks related to water resource
management in 16 different jurisdictions around the world. The study discusses the
essential elements for a regulatory framework for water resources management and
clearly identifies some emerging trends. Some basic issues related to preparing water
legislation or revising existing laws are addressed here, but the study does not make
73
The Irrigation Act 1876 is the oldest act in relation to water resource management.
74
The Pesticides Ordinance 1971, as amended by the Agricultural Pesticides (Amendment)
Ordinance 1983, makes provisions for the regulation of import, manufacture, formation, sale,
distribution and use of pesticides (Ordinance No II of 1971).
75
The Environmental Pollution Control Ordinance 1977 is intended to regulate industrial and
domestic waste water discharge.
76
These rules describe environmental quality standards, procedures in preparing EIA and procedures
to be followed for obtaining environmental clearance from the DOE.
77
This act gives the MoEF the power to draw up rules and guidelines for managing the environment.
78
The guidelines cover most of the water sector interventions, including flood control embankments,
polders, dykes, water supply and sewage treatment.
79
The Environment Court Act was promulgated in 2000 and was last amended in 2010. People can
resort to the Environment Court to resolve their disputes over environmental issues.
80
Salman M A Salman and Daniel D Bradlow, Regulatory Frameworks for Water Resources
Management A Comparative Study (The World Bank, 2006).
14
any attempt to analyse the implementing process of water legislation in any
particular jurisdiction.
Irene (2000) undertook research in the field of water management in Bangladesh,81
but focuses only on pond management and does not include other sources of inland
water. Richard Helmer and Ivanildo Hespanhol (1997) discuss the policies and
principles that need to be followed for controlling water pollution in their book
Water Pollution Control: A Guide to the Use of Water Quality Management
Principles,82 which promotes some valuable tools for policy makers in developing
countries to combat the environmental and economic impacts of water pollution. The
book identifies that water pollution control is clearly one of the most critical
challenges that developing countries are facing and notes that urgent and properly
directed action is required. In relation to the main theme of this research, the need for
regulatory reform, this book is not sufficient. It does not comprehensively cover the
issues of the inadequacy of the present regime of inland water pollution control. This
book also lacks detailed discussion on the liabilities for inland water pollution and
capacity building issues.
Some scholars have examined contamination in the groundwater of Bangladesh,
which has been described as the largest mass poisoning of a population in history.83
Faruquee and Choudhry (1996) evaluate water resource management in Bangladesh,
including management of the supply and demand for water, the government’s role to
provide a policy and legal framework to set the conditions for water use and the
future water strategy of Bangladesh.84 They suggest setting an analytical framework
for an improved water management system and comprehensive water planning,
81
Irene Kranzlin, Pond Management in Rural Bangladesh: System Changes, Problems and Prospects,
and Implications for Sustainable Development (PhD thesis, Basel University, 2000).
82
Richard Helmer and Ivanildo Hespanhol (eds), Water Pollution Control: A Guide to the Use of
Water Quality Management Principles (E and FN Spon, 1997).
83
Allan H Smith, Elena O Lingas and Mahfuzar Rahman, ‘Contamination of Drinking-water by
Arsenic in Bangladesh: A Public Health Emergency’ (2000) 78(9) Bulletin of the World Health
Organization 1093, 1103.
84
Rashid Faruqee and Yusuf A Choudhry, ‘Improving Water Resource Management in Bangladesh’
(Woking Paper No 1569, Agriculture and Natural Resources Division World Bank, January 1996).
15
taking into account water’s special characteristics.85 They consider national social,
economic and environmental objectives, but do not take into account any legal
framework. All the studies referred to above identify inland water pollution as one of
the main threats Bangladesh is facing, but none relate to the effectiveness of the legal
regime.
The above discussion reveals that there is a gap between the planned and actual
utilisation of inland water in Bangladesh. The main objectives of various policies
and legislations such as improved quality of life of the people, poverty alleviation
and environmental conservation cannot be achieved without institutional
strengthening and comprehensive planning within an overall development context.
Systematic analysis of the causes of inland water pollution, identification of legal
opportunities, technical assistance and capacity building efforts at the national level
are inadequate. No significant initiative to deal with inland water pollution has been
undertaken. There is a lack of institutional capability to enforce acts and policies and
there is also a lack of skill and expertise in practical action to protect Bangladesh’s
inland water from pollution. There has been no plan focusing exclusively on inland
water pollution control and, therefore, formation of such a plan remains a crucial
need in Bangladesh. The research undertaken in this thesis will improve overall
understanding of the legal issues of pollution of inland water resources in
Bangladesh.
Efforts are made in this thesis to determine whether the protection of inland water,
conservation and management of water resources as well as promulgated effective
laws are significantly interlinked and essential. The outcomes of the research make a
significant contribution by revealing the reasons why Bangladesh has not achieved a
satisfactory level of legal protection of inland water resources. This study generates
new understanding of the necessity for uniform regulations and administrative rules
for inland water management in Bangladesh and contributes to the sustainable use of
inland water resources and the resolution of various problems in implementing the
existing regimes on inland water pollution in Bangladesh. It also extends and
improves knowledge in the area of environmental pollution law in Bangladesh. The
85
Characteristics that set water apart from other economic goods are its lack of substitutes, unitary
nature, high variability in location and time and complex social and institutional arrangements
controlling ownership and use.
16
research outcomes will help policy makers, legislators and researchers to understand
the problems and prospects for laws relating to inland water pollution. The findings
of this study will enable the government of Bangladesh to improve the laws and
policies pertaining to inland water pollution and take control over this serious
environmental problem.
VI METHODOLOGY
Doctrinal methodology has been used to conduct this research; in particular, law
reform research frameworks enable the provision of advice on changes and reform of
existing laws. Doctrinal methodology begins by determining the existing law in a
particular area;86 it may then consider the problems that affect the laws and finally
propose some changes in the law. This research begins with an analysis of relevant
domestic Bangladeshi legislation (primary sources) to determine their adequacy and
capacity for the prevention of water pollution. An extensive body of legislation
dealing with inland water pollution and implementing regulation is used to indicate
the main obstacle to implementation of those regulations. The materials also include
judicial decisions in relation to inland water pollution and law reform style papers.
This material has been considered carefully and selected to ensure most recent and
well-developed pieces of research addressing inland water pollution in Bangladesh
as a developing country. Analysis and examination of these materials help to identify
the major issues needed to be addressed. Materials also include journal articles,
government
reports,
technical
documents,
published
and
unpublished
seminar/workshop papers and relevant Bangladeshi ministries’ plans and policies.
A doctrinal model under a positivist tradition method87 has been chosen because of
its effectiveness to locate, collect, read, analyse and organise various laws in relation
to inland water pollution in Bangladesh. This method assists to establish the reasons
why many of the legal provisions are not adequate. Once this inadequacy has been
established, there is a need to determine what obstacles exist to implementing
regulations in Bangladesh as a developing country. The next step consists of finding
the strategies that can help to improve the situation. This step is essential to fulfil the
86
Mike McConville and Wing Hong Chui (eds), Research Methods for Law (Edinburgh University
Press, 2007), 20.
87
Terry Hutchinson, Researching and Writing in Law (Thomson Law Book Co, 3rd ed, 2010) 40.
17
objectives of the research. It allows critically reviewing the legislations in the area of
inland water pollution and finding the obstacles to implement the regulations in
Bangladesh. This process involves obtaining the relevant literature through academic
research. The research can be defined as the ‘entire process ranging from setting
research questions to planning and recommendations’, while method implies ‘the
technique to gather research data’. 88 This method can facilitate the collection and
organisation of relevant information, including legislations, current cases and
scholarly articles.
Large numbers of legal and regulatory instruments are available in relation to
protection prevention and control of inland water pollution. This research examines
them in the context of a developing country and finds the way to deliver the end
result without overstretching the water resources. The cases discussed within this
thesis are only those that have direct, indirect or causal dealing with inland water.
The main cases to be covered include public interest litigations relating to inland
water pollution decided by the Supreme Court of Bangladesh. The research involves
academic articles covering areas such as inland water pollution control, water quality
management, institutional arrangements and environmental capacity building and
legal and regulatory instruments for preventing inland water from pollution. In
obtaining and critically reviewing the legislature, cases and articles help to procure a
regulatory reform of inland water pollution control in Bangladesh.
As stated, this thesis is a combination of doctrinal and reform-oriented research.89 As
doctrinal research, it provides a systematic exposition of the existing trends of inland
water pollution and its effect on people and the environment. Analysing the
shortcoming of different management principles, it identifies the inadequacies of the
global regulatory framework and explores the internationally accepted principles of
watercourses law that suit inland water governance. As reform-oriented research, it
refers to the integrated management potential of inland water, showing the benefits
of stakeholder participation, with specific recommendations of an integrated
management institutional structure. This research is also significant for policy
88
Hillary P M Winchester and Mathew W Rofe, ‘Qualitative Research and Its Place in Human
Geography’ in Iain Hay (ed), Qualitative Research Methods in Human Geography (Oxford University
Press, 2nd ed, 2005) 1, 4.
89
Hutchinson, above n 87, 7.
18
research, as it examines the legal and policy issues relating to inland water
management.
A literature review and analysis of selective information are used as the major
research tools in achieving the objectives of the thesis. An attempt has been made to
review most of the noteworthy literature regarding the development, management
and utilisation of international shared freshwater resources. While reviewing the
literature, particular emphasis has been given to the different water management
principles developed under customary international law. Other literature include
judicial decisions and arbitral awards regarding international water disputes. A
critical analysis is presented on the ability and adequacy of existing international
instruments to address the problem of water pollution and the potential of a single
authority in national level to manage inland water pollution.
This research establishes that the inland water pollution law in Bangladesh is not
enough to protect inland water from pollution and also helps to identify what other
options could be implemented. One of the major features of conducting this research
is that the gathered information are analysed continuously, throughout the study,
from conceptualisation through the entire information collection phase, and into the
interpretation and writing phase. 90 Collected information and data gathered from
primary and secondary sources are used to analyse and interpret logical arguments
and clarify confusion. All materials are analysed with a view to identifying gaps in
the study of inland water pollution control and to evaluating the effectiveness of the
present regimes in Bangladesh.
In applying doctrinal research methodology, the thesis examines both primary and
secondary materials. Primary materials include, but are not limited to, international
treaties, conventions, Intergovernmental Organisation (IGOs) declarations and
International Non-governmental Organisations (INGOs) resolutions. Decisions of
the cases from the International Court of Justice (ICJ), High Court Division of
Bangladesh Supreme Court, statistics from the Bangladesh Bureau of Statistics (BBS)
and Asian Development Bank (ADB) and water-related working reports are also
examined. Secondary sources such as relevant books, journal articles, newspapers
90
Judith Preissle Goetz and Margaret Diane LeCompte, Ethnography and Qualitative Design in
Educational Research (Academic Press Inc, 1984 ) 1, 4.
19
and newsletters articles, related research works, and reports published by agencies,
commissions and committees are considered. Publications from international
organisations such as UN documents and reports, UNEP reports and drafts, country
reports on water and related conference reports are also assessed and analysed.
Further primary materials are gathered from relevant departments or ministries of the
government of Bangladesh, including the Cabinet Division, the Ministry of Law,
Justice and Parliamentary Affairs, the MoEF and institutes and associations that are
directly involved working with water-related issues. Essential information for
examining the existing arrangements for inland water pollution control in
Bangladesh was collected through content analysis and reviewing a variety of
secondary sources.91 The proposed study area has been visited and information has
been collected directly from government authorities, environmental activists,
academic experts and water researchers working in Bangladesh. The results of
previous studies on state of water quality are also considered.
VII CHAPTER OVERVIEW
This introductory chapter has provided the subject matter of this thesis by
outlining the research problem, main objectives of the research and the importance
of the protection of inland water from pollution. The chapter set out the current state
of knowledge, made a thesis statement to meet the objectives of the research and
described the doctrinal and reform-oriented research methodology. In this chapter,
justification for a regulatory reform for the effective control of inland water pollution
has been established.
Chapter 2 identifies and describes different types of water pollution and examines
their sources and impacts. It develops a conceptual framework on inland water
pollution and explores the diverse pathways of water pollution that are the dominant
threats to the environment. Usually, inland water pollution has a local source and
their impacts are mostly national. However, inland water also has regional,
international impacts through transboundary water resources. Due to the nature and
effects of water pollution, the necessity of bilateral or regional regimes needs to be
considered, in spite of local actions and solutions being the main concern. The
approach based on effective cooperative management could contribute to overcome
91
World Bank and Asian Development Bank.
20
specific natural resource management problems that stand as obstacles to protect
inland water pollution.
Chapter 3 examines problems and issues relating to inland water pollution, and
analyses inland water pollution as a social and environmental problem in Bangladesh.
The impacts of different perceptions of the economic and environmental costs of
inland water pollution control are discussed from an economic perspective.
Territorial sovereignty plays a vital role in controlling water pollution, but
controlling transboundary sources needs to be planned and implemented regionally
or internationally to deal with the emerging crisis within specific area. Since these
problems and issues to control inland water pollution are confronting, innovative
management responses to the solutions of these problems are required. In this respect,
the rights, duties, liabilities and obligations of the government, non-government
entities and the private sector under the law regarding the utilisation, development
and protection of freshwater resources is examined and analysed. This chapter also
discusses other constraints that include but are not limited to poverty, incapacity,
incentives and regional conflict.
Chapter 4 introduces and examines various management principles, unfolding the
role and the prospects of some internationally recognised management principles
related with the inland water pollution control. This investigation inspects, among
others, the principles of SD, IWRM, Adaptive Water Management (AWM) and
precautionary and polluter-pays principles. All these principles have been used as
benchmarks for assessing the present regimes of inland water pollution control and
act as the basis for various strategies, programmes and practices. Although these
principles have some shortcomings and inadequacies, they have been incorporated in
various legal instruments due to their substance, developing the legal regimes of
inland water pollution control. As a developing country, Bangladesh needs resources
and capabilities for comprehensive prevention of inland water pollution. This chapter
addresses the long-term needs of managing the water sector, undertaking integrated
water and land use planning and managing transboundary flows.
Chapter 5 evaluates and analyses the work of different INGOs and various judicial
and arbitral decisions in relation to international water resource development and
management, in view of the development of international watercourses law. It
further analyses the relevant Customary International Law (CIL) to protect inland
21
water pollution and establishes a relationship between the international legal
framework and different management principles.92 The discussion begins from the
late 18th century theory of absolute and exclusive territorial sovereignty and ends
with the ministerial declaration of the 6th WWF. This chapter aims to identify the
globally accepted principles of international watercourses law that could serve as a
guideline to protect inland water from pollution. These principles conceive the main
legal issues concerned with the use, development and protection of international
freshwater resources, and concentrate on regional arrangements to protect and
control inland water pollution.
Chapter 6 consists of an analysis of the regulatory frameworks for protecting inland
water from pollution in Bangladesh. This chapter describes and critically analyses
the development, applications and shortcomings of main policies, different laws and
regulations and current institutional frameworks that deal with the water resources
management in the country. It also identifies multi-dimensional challenges from
water scarcity to potential future impacts in a changing climate and suggests some
opportunities to overcome such challenges. In addition to the evolving national legal
regimes, this chapter examines previous and current attempts to require and
encourage
regional
collaboration
between
Bangladesh
and
India
sharing
transboundary water sources to improve the overall situation.
Chapter 7 evaluates the competence of the present regimes of preventing inland
water pollution in Bangladesh. In this context, attention is given to the achievements
and failures in the control of inland water pollution. The application of international
management principles of water resources are used as benchmarks for evaluation.
This chapter discusses the problems and prospects of regulatory reform to achieve
more effective results of inland water pollution in Bangladesh
In the final chapter, the key outcomes of the research are summarised and integrated,
including an evaluation of the adequacy of the present regimes of water pollution
laws of Bangladesh. Limitations and the future scope of the study are noted and
recommendations for improvement of the inland water management practices are
suggested. The chapter concludes that to achieve success against inland water
pollution, the most important task is to establish a single authority instead of having
92
Discussed in Chapter 4 II.
22
too many controlling organisations or authorities. In conjunction with this, some
important policy changes or inclusions are necessary in order to achieve long-term
benefit from an inland water pollution perspective. These include effective
implementation of management principles relating to inland water pollution control
such as IWRM, AWM.
23
CHAPTER 2: INLAND WATER POLLUTION IN BANGLADESH:
SOURCES AND EFFECTS
I
INTRODUCTION
This chapter provides a general understanding of the availability of inland water
globally and specifically addresses the various sources and effects of inland water
pollution in Bangladesh. The country has been classified into different hydrological
regions with their own unique characteristics in relation to inland water availability
and variability of contaminating sources. Inland water pollution has significant
impacts not only on the environment but also on the economy and development of
the country. This chapter presents a detailed water situation of the country to
elucidate an accurate picture of the inland water sources and their effects in
Bangladesh.
The chapter also highlights and describes different pathways of inland water
pollution, with an emphasis on a theoretical perspective, and their immediate and
long-term effects in Bangladesh. It reveals the nature and extent of various pollutants
and establishes that population growth and urbanisation are not only creating
increased demand for water, but also generating pollution by industrial and domestic
effluents that is reducing the availability of inland water. Since the inland water is
polluted through various sources, this chapter argues for an effective measure to
control both point and non-point sources of inland water pollution.
II THE WORLD’S WATER
Water is so ubiquitous on our globe, covering nearly three-quarters of its surface,
that the entire planet really ought to be called ‘Water’ rather than ‘Earth’.1 Water
covers 70% of our planet, but renewable freshwater 2 is an increasingly scarce
commodity in many parts of the world.3 Water is the most vital, finite and renewable
element among the natural resources, and is essential for the continued existence of
1
Daniel Hillel, Rivers of Eden: The Struggle for Water and the Quest for Peace in the Middle East
(Oxford University Press, 1994) 20.
2
Renewable freshwater is the water that is recycled within a reasonable time span through the
hydrologic cycle, such as the water found in streams, reservoirs, and other sources that are regularly
recharged with precipitation or runoff.
3
Pamela LeRoy, ‘Troubled Waters: Population and Water Scarcity’ (1995) 6 Colo. Journal of
International Environmental Law & Policy 299, 299.
24
all living organisms. Of all the substances that are necessary to life, water is by far
the most important, the most familiar and the most wonderful.4 Water is considered a
renewable5 natural resource, and the total amount of water available on a global basis
remains constant.6 The figure below gives a picture of total availability of water in
the earth.
Figure 2.1: Global Availability of Water7
In view of the immense importance of inland water for human existence, the diagram
shows that, although about three-quarters of Earth is water, the estimated volume of
4
Luna B Leopold and Kenneth S Davis, Water (Time Inc, 2nd ed, 1968) Preface.
5
Continually being renewed through nature’s hydrological cycle.
6
The amount of water On earth now and 2000 years ago is the same.
7
Igor A Shiklomanov, ‘World Water Resources at the Beginning of the 21 st Century’ (Monograph,
UNESCO,
29
April
2013)
<http://webworld.unesco.org/water/ihp/db/shiklomanov/summary/html/summary.html#2.%20Water%
20storage>.
25
freshwater in rivers, groundwater, snow and ice is about 2.5% only; the remaining
97.5% of the total of 1.4 billion km3 of water being in the sea and salty. Most of the
inland water is either in the form of ice and permanent snow covers (68.9%) or is
stored underground in the form of deep underground aquifers (29.9%). Total useable
inland water supply to ecosystem and humans from river systems, lakes wetlands,
soil moisture and shallow groundwater is only 1.2% of all freshwater and only
0.01% of all the water on Earth. According to the World Health Organisation
(WHO), only 0.007% of all water on Earth is readily available for global
consumption.8
As stated, though the globe is covered with water, only 2.5% is freshwater, most of
which is unevenly distributed and subject to great variability, directly affecting the
economic and social development of nations. 9 While states struggle to cope with
domestic water issues, the matter is more complex where freshwater resources cross
sovereign borders. 10 Around the globe, the distribution of freshwater is highly
uneven. The needs of the countries are different, but also there are substantial
differences in household and industrial consumption between developed and
developing countries.11
Just six countries have half of the world’s total renewable freshwater supply on their
territory—Brazil, Canada, China, Colombia, Indonesia and Russia. Even at the
continental level, there are clear haves and have-nots. Europe and North America are
well served, though both continents generally have a surplus in the north and
shortage in the south. Australia is the driest continent but with a small population.
Asia has almost two-thirds of the world’s population, by contrast, and only a third of
the world’s runoff. Most importantly, 80% of this is concentrated in the short
monsoon season. South America has only 5% of the world’s population but is
8
P C Bansil, Water Management in India (Concept Publishing Company, 2004) 13.
9
Patricia Wouters and Dinara Ziganshina, ‘Tackling the Global Water Crisis: Unlocking International
Law as Fundamental to the Peaceful Management of the World’s Shared Transboundary WaterIntroducing the H2O Paradigm’ in R Quentin Grafton and Karen Hussey (eds) Water Resources
Planning and Management (Cambridge University Press, 2011) 175, 176.
10
Aaron. T Wolf et al, ‘International River Basins of the World’ (1999) 15(4) International Journal of
Water Resources Development 387, 393.
11
William A Jury and Henry J Vaux, Jr, ‘The Emerging Global Water Crisis: Managing Scarcity and
Conflict between Water Users’ (2007) 95 Advances in Agronomy 1, 10.
26
blessed with three of the world’s top 10 rivers.12 Continent wide allocation in Africa
is not dire, but a third of its runoff goes down a single river, the Congo. 13 Even in
water-rich countries, water can be inconveniently distributed in time and place.14
Figure 2.2: Regional Distribution of Water Resources15
The largest absolute volume of water resources are in Asia and South America
(respectively 32% and 28% of the world total water quantity). However, the Asia
region is home to approximately 60% of the world’s population, with per capita
availability of water the smallest and less than half of the world average.16 Further,
the population in this region is increasing with the highest growth rate; therefore, the
situation is likely to deteriorate in the future unless appropriate action is taken now.
It should be noted that there are substantial variations in the availability of water
resources in the region and in the seasons.
12
The Amazon, the Orinoco and the Parana.
13
Fred Pearce, When the Rivers Run Dry Water-The Defining Crisis of the Twenty-First Century
(Beacon Press, 2006) 22.
14
Most of India gets all its rain in 100 hours during 100 days in year. Most of the rain falls in
Bangladesh during the monsoon (June to September) and little during the dry season (November to
February).
15
Shiklomanov, above n 7, summary.
16
Igor A Shiklomanov, ‘Appraisal and Assessment of World Water Resources’ (2000) 25 Water
International 11, 18.
27
Access to inland water resources is a global concern. Of the 2.5% of freshwater,
1.67% is locked up in ice caps and glaciers, 0.17% lies too remote for human access,
0.53% comes at the wrong time and place 17 and only the remaining 0.13% is
accessible.18 Throughout the last century, world population has tripled while the use
of water has increased six-fold.19 Water professionals are referring to such increasing
demand of the global water situation as a crisis, which in the long run may have
social and economic impacts. It is estimated that water use will rise by 50% in the
next 30 years, leaving half of the world’s population in severe water stress by 2025.20
In worldwide distribution, as has been alluded to, Asia, with 60% of the world’s
population, has access to only 36% of the global water supply, in contrary to South
America with 6% of the global population and access to 26% of the water, Australia
with less than 1% of the population and 5% of the water and the Middle East and
North Africa with 5% of the population and less than 1% of the water.21
Water is continually cycled between the various reservoirs within the framework of
the hydrological cycle powered by the sun.22 Replacements in these reservoirs can
take from eight days to thousands of years. Water in the atmosphere is completely
replaced once every eight days. On average, water is renewed in rivers once every 16
days. Slower rates of replacement take place in glaciers, large lakes and
groundwater.23 Humans are using some of these resources, especially groundwater,
at rates that far exceed their renewal times. It is important to note that unplanned
utilisation of water along with the impact of pollutants released into the water
sources are the main causes that deteriorate the water situation. Activities that are
17
In Bangladesh, 111,250 cubic meters is available in August, while only 3710 million cubic meters is
available in February.
18
Proceedings of the UNESCO/WMO/ICSU International Conference on Hydrology Towards the 21 st
Century: Research and Operational Needs, 22–26 March 1993, Paris 11 (22 January 2011)
<http://unesdoc.unesco.org/images/0009/000985/098555eb.pdf>.
19
Murshed Ahmed, ‘Regional Co-operation on Transboundary Water Resources Management:
Opportunities and Challenges’ (Paper presented at Bangladesh Economic Association Conference,
Dhaka, Bangladesh, 2007) 8.
20
4th World Water Forum (WWF), Mexico, 2006.
21
Inequalities at the country level are even greater. A citizen in North America has access to over
10,000 cubic meters/year whereas in Egypt the access is 1100 cubic meters/year and in Jordan it is
only 260 cubic meters/year.
22
Some of the reservoirs are groundwater (deep and shallow), glaciers, lakes and rivers.
23
I G Malkina-Pykh and Y A Pykh, Sustainable Water Resources Management (WIT Press, 2003)
105.
28
openly or ultimately causing deterioration of the water need to be prevented and
controlled. The backdrop of growing pressure on the world’s finite water resources
creates the opportunity for sustainable management but also for potential waterrelated conflict in the coming years.24 Population growth and urbanisation are not
only increasing the demand for water but also are creating pollution by industrial and
domestic effluents that is reducing the availability of inland water. Various human
induced activities25 are polluting water in rivers, aquifers and lakes around the world.
Such deterioration of water quality is adversely affecting the biodiversity and
ecosystem that is crucial for our existence, needs immediate attention at local,
national, regional and global levels.26
III INLAND WATER IN BANGLADESH
Bangladesh is largely a flat delta, transected by numerous rivers and their tributaries.
A huge number of other water bodies such as lakes, canals, and streams are also
scattered around the country. The climate of Bangladesh is sub-tropical monsoon
with a maximum average temperature of 34oC in summer and a minimum of 11oC in
winter. The country receives heavy rainfall during the rainy season; the average
annual rainfall varies from 1194 mm to 3454 mm.27 Geologically, Bangladesh is a
part of the Bengal Basin, the floor of the Bengal Basin consists of quaternary
sediments deposited by the Ganges, the Brahmaputra and the Meghna rivers known
together as the Ganges-Brahmaputra-Meghna (GBM) river system, and their
numerous tributaries and distributaries. The sediments are washed down from
highlands on three sides of the Basin, particularly from the Himalayas where the
slopes are steeper and the rocks are less consolidated. Over 92% of the annual runoff
generated in the GBM catchment area flows through Bangladesh, although it
comprises only about 7% of the total catchment. 28 The three major rivers have a
24
These conflicts may occur between individuals or user groups in need of various demands such as
drinking, agricultural or industrial purposes.
25
Such as domestic, industrial and agricultural.
26
‘A Primer on Water Issues and the Commonwealth’ (Forum Paper, National Student
Commonwealth Forum, Canada, 4–9 May, 2003) 1.
27
Sirajul Islam et al (eds) Banglapedia: National Encyclopaedia of Bangladesh (Asiatic Society of
Bangladesh, March, 2003).
28
Anjan Datta, ‘The Bangladesh-India Treaty on Sharing of the Ganges Water: Potentials and
Challenges’ in Surya P Subedi (ed) International Watercourses Law for the 21st Century: The Case of
the River Ganges Basin (2005) 105.
29
huge catchment area of 1,554,000 km², spreading over five countries, namely,
Bhutan, Nepal, China, India and Bangladesh. There are about 700 rivers, canals and
streams in Bangladesh, with a total length of approximately 22,155 km, which
occupies a riverine area of about 9384 km².29
Bangladesh is a lower-riparian state, located in the deltaic portion of some of South
Asia’s major Himalayan rivers. This delta is characterised by flat terrain interlaced
with the intricate system of rivers and tidal channels that carry an enormous quantity
of sediment-laden water downstream. The country is naturally vulnerable to the
quantity and quality of its water, due to geographical location. 30 Main sources of
freshwater for Bangladesh are river water and groundwater. It gets almost threequarters of its freshwater from transboundary sources that made a significant
contribution to everyday social and economic life and development. 31 The survival
of its people, their livelihoods and the country’s ecosystems are mostly dependent on
the transboundary water resources. 32 Bangladesh is surrounded on three sides by
Indian territory, from which the major rivers and some of their distributaries enter
into the country.33 Out of the 57 transboundary rivers that Bangladesh shares with its
neighbouring states, 54 are with India and three with Myanmar.34
29
Bangladesh Bureau of Statistics, Statistical Year Book of Bangladesh (Bangladesh Government
Press,1998).
30
Mukand S Babel and Shahriar M Wahid, Freshwater Under Threat South Asia Vulnerability
Assessment of Freshwater Resources to Environmental Change Ganges Brahmaputra Meghna River
Basin Helmand River Basin Indus River Basin (Asian Institute of Technology, UNEP 2008) x.
31
M Rafiqul Islam, Ganges Water Disputes: Its International Legal Aspects (The University Press
Limited, 1987) 36; Q K Ahmad et al, ‘GBM Regional Water Vision: Bangladesh Perspectives’ in Q K
Ahmad et al (eds), Ganges-Brahmaputra-Meghna Region: A Framework for Sustainable
Development (2001) 31, 37.
32
Md Khorshed Alam, Cleanup of the Buriganga River Integrating the Environment into Decision
Making (PhD Thesis, Murdoch University, 2003) 30.
33
Ariel Dinar et al (eds), Bridges Over Water Understanding Trans-boundary Water Conflict,
Negotiation and Cooperation (World Scientific Publishing Co Ltd, 2007) 248.
34
Islam, above n 31, 41.
30
Figure 2.3: River System and Hydrologic Regions of Bangladesh35
In accordance with NWPo,
36
WARPO has delineated the river system and
hydrological regions of Bangladesh based on appropriate natural features for
planning the development of water resources. The country was divided into seven
35
Government of the People’s Republic of Bangladesh, Bangladesher Nad-nadi (in Bengali)
(Bangladesh Water Development Board, Ministry of Water Resources, 2005)
36
Government of the People’s Republic of Bangladesh, ‘National Water Policy’ (Ministry of Water
Resources, 1999) 5.
31
hydrological regions and Rivers and Estuary (RE) regions that comprise the major
rivers, charlands and lands within the active flood plain. Rivers, haors, beels,
estuaries and floodplains as well as in-stream islands constitute the surfacewater
system of Bangladesh. 37 Three sources of water available in this region are the
surfacewater flow of GBM rivers, rainfall and groundwater flow. Assessments have
been made of overall regional water balances, and the results confirm that diversions
from major rivers are essential for supplying the required water demand, the results
of which are summarised in the table below.
Table 2.1: Regional Water Balances of Bangladesh (NWMP 2001)38
The table clearly demonstrates that every hydrological region has their own unique
problems from deficit to abundant availability and variability of contaminating
sources, and overall the country is densely populated. The ruthless exploitation of
inland water resources has posed a serious threat to the future of inland water in
37
Ahsan U Ahmed, Neelopal Adri, ‘Riverine Environment of Bangladesh’ in Ahsan Uddin Ahmed
(ed), River pollution Concerns and Expectations (Bangladesh Environmental Lawyers Association,
2009) 1,1.
38
Government of the People’s Republic of Bangladesh, ‘National Water Management Plan’ (Report,
Vol 2, Ministry of Water Resources, 2001) 30.
32
Bangladesh. Thus, initiative should be taken to keep inland water resources and
overcome these threats by establishing good governance principles that will ensure
transparency, accountability and fairness.39 Further, most of the surfacewater sources
are transboundary, so stronger regional cooperation among co-riparian countries to
ensure equitable, environment friendly management of international watercourses is
equally important.40
As noted, NWMP of the country was decided on as a plan for national water
resources development and management. The plan divides the whole country into
seven hydrological regions by hydrological characteristics with a viewpoint of
development needs against water availability, and is investigating necessary
developments and a management plan for each area. The conditions of each
hydrological region in this plan are as below.41
A North West (NW) Region
The average annual rainfall in the NW region is approximately 1700 mm. The
southwest area of this region is the driest part in Bangladesh and its average annual
rainfall level is below 1400 mm. The groundwater level is high except in the part of
the southwest where it is relatively high above sea level. This area is advancing
agricultural development and has the largest numbers of regions that operate
agricultural irrigation in the whole of the eight regions. Industries in this area are not
as developed as in the other industrial part of the country. However, future industrial
developments are expected as a consequence of the opening of the Jamuna Bridge in
1998.
B North Central (NC) Region
The range of average annual rainfall in the NC region is between 1400 and 2400 mm.
The NC area industrialisation and urbanisation is the most developed in the whole
country, and rapid urbanisation is also expected in future. The groundwater lies in
39
Through enact legislations, promulgating policies and ensure effecting implementations of those
laws and policies.
40
Ahmed and Adri, above n 37, 16.
41
Junichi Yoshitani, Norimichi Takemoto and Tarek Merabtene, ‘Factor Analysis of Water-related
Disasters in Bangladesh’ The International Centre for Water Hazard and Risk Management Public
Work
Research
Institute
(PWRI)
(2007)
5,
8.
<http://www.icharm.pwri.go.jp/publication/pdf/pdf_0706/bang_e.pdf>.
33
fairly shallow layers and the conditions of agriculture is being improved similar to
the NW region. The groundwater level drops seasonally and the incidence of
flooding is comparatively low except in the southern part, and the scale of flood
protection and irrigation projects is also small.
C North East (NE) Region
The average annual rainfall is high, at 3200mm in the NE region. Urbanisation and
industrialisation have not really progressed in the NE area, developable shallow
layers of groundwater are limited, except in parts of the NW, but there is a lot of
surfacewater in the dry season. This area has distinguishing features compared to the
NW and NC areas.42
D South West (SW) Region
Average annual rainfall of this area is similar to the NW region and this area is
roughly divided into the coastal and inland area. The rainfall at the west is fairly low,
groundwater in a large area is naturally contaminated and the flow rate of the river is
low in dry season due to the effect of the Farakka dam in upper Ganges.
E South Central (SC) Region
The SC area is roughly divided into the coastal and inland area similar to the SW
with an average annual rainfall of approximate 2300 mm. There is no water shortage
in the dry season. Industrialisation and urbanisation are both limited compared to
other regions.
F South East (SE) Region
Like the SW and SC regions, the SE area is roughly divided into the coastal and
inland area. Groundwater contamination in this region is the most serious in the
whole country. There is not any serious shortage of water except in the southern part;
however, total quantity of water available is not still enough.
G Eastern Hills (EH) Region
The average rain fall in EH area is approximately 2400 mm annually. The country’s
only reservoir is situated in this area, generally not affected by flood damages. Apart
42
This area produces tea and has a big reserve of natural gas and also the large haors spreading over
5600 km².
34
from the above inland region, another area is classified as a RE region. This is the
estuarine area of the GBM. The living standard in this area is very low and unstable
with a high frequency of flood occurrences.
Bangladesh is richly endowed with water resources on an annual basis, with an
elaborative network of rivers criss-crossing the country and abundant rainfall, but the
availability is characterised by wide seasonal as well as spatial variability.43 Regional
and seasonal availability of water has an extreme influence on the economic growth,
development and environment of Bangladesh and the quality of surface and
groundwater. Availability of surface and groundwater depends on the monsoon
climate and physiography of the country. As a lower-riparian country,44 availability
also depends on upstream withdrawal. In terms of quality, the surfacewater of
Bangladesh is unprotected from untreated industrial effluents and runoff pollution
from chemical fertilisers and pesticides. A common problem in the lower-riparian
countries is that of enough water in monsoon but water scarcity during the dry
season.45
From prehistoric times, Bangladesh was famous for its abundance of water from
various sources. Despite the abundance of surfacewater, there has always been the
question of quality. The surfacewater sources are being misused as a sink for highly
polluting wastewaters from domestic as well as industrial sources. This unsafe
surfacewater from lakes, ponds, wells and rivers expose a variety of water-related
disease. The UNCED estimates that 80% of all disease and more than one-third of
deaths in developing countries are water associated. 46 Every year, hundreds of
thousands of people, particularly children, die of various waterborne diseases. 47
43
Saifuddin Ahmed, ‘The Status and Challenges of Water Infrastructure Development in Bangladesh’
(Paper Presented at the 1st Regional Workshop on the Development of Eco- Efficient Water
Infrastructure in Asia Pacific, Seoul, 10-12 November 2008) 1.
44
The word originated from Latin ripa, which means relating to the banks of a natural course of
water. However, the term ‘riparian’ used in this study refers to a state through whose territory an
international river flows and as far as surfacewater of an international stream is concerned.
45
A Atiq Rahman et al, ‘Bangladesh: State of Environment 2001’ (Report, United Nations
Environmental Programme, 2001) 42.
46
UNCED, also known as the Earth Summit, took place in Rio de Janeiro, Brazil, from June 2–14,
1992. Government officials from 178 countries, NGOs, individuals and media from across the globe
participated in this event to discuss how to relieve the global environmental system through the
introduction to the paradigm of sustainable development.
47
Such as cholera, diarrhoea, dysentery and typhoid.
35
Earlier discussions have exposed that, in a country like Bangladesh, which has
limited resources and a large population, pollution of water must be controlled
immediately.
IV SOURCES OF INLAND WATER
More than one-fifth of the area of Bangladesh is flooded in the average monsoon
period and 9% of the area is covered by different inland water sources, mainly rivers,
tributaries and distributaries.48 Apart from the rivers, just over 1% of the total surface
area of the country is covered by open water bodies such as haors, baors and beels. 49
Water continuously circulates through the environment to keep a balance of water in
the ocean, on the land and in the atmosphere. Surfacewater, 50 groundwater 51 and
aquifers52 are the main sources of inland water. The natural subsystems of inland
water resources include an interlinked system of rivers, estuaries, canal, the
floodplain, wetlands, lake, haor, baor, khal, bill (local name of different types of
ponds filled with stagnant water) and groundwater aquifers. 53 In Bangladesh, the
main two sources of inland water are surfacewater and groundwater.
H Surfacewater
Bangladesh is very rich in inland water resources and the natural surfacewater
resources in this country are mainly categorised as annual rainfall, transboundary
river flow, water in standing water bodies (storage in reservoirs, lakes and ponds),
seasonal wetlands and in-stream storage. An average annual rainfall of 2360 mm
48
Asit K Biswas, R Rangachari and Cecillia Tortajada (eds) Water Resources of the Indian
Subcontinent, (Oxford University Press, 2009) 287.
49
Haors, most of which retain some water over the dry season, are seasonally flooded shallow
depressions between river levees. Baors are mainly perennial wetlands formed from oxbow lakes or
other isolated stretches of former rivers. Beels are depressions that occur throughout the country
except in the hilly areas and most retain at least some water throughout the dry season.
50
Water found on Earth’s surface in streams and rivers, lakes, ponds and reservoirs and wetlands (an
areas of land covered with water for at least part of the year) are surfacewater.
51
Groundwater is water existing below the surface of the Earth. Earth contains underground
formations that collect and store water. Excess surfacewater seeps through the soil and finds its way
down through cracks and spaces in sand, gravel or rock until stopped by an impenetrable layer is
accumulates as groundwater.
52
Aquifers are underground reservoirs or a groundwater storage area that are either unconfined or
confined.
53
Abu Musa Md. Motaher Ahmed and Kingsuk Roy, ‘Utilization and Conservation of Water
Resources in Bangladesh’ (2007) 2(1) Journal of Developments in Sustainable Agriculture 35,35.
36
generates about 276 Million-Acre Feet (MAF) of water, and water coming from
outside by stream flow is estimated at about 818 MAF annually. Therefore, the total
surfacewater resource generated in Bangladesh is about 1094 MAF or 1350 Billion
Cubic Meter (BCM) annually. An estimated 795000 million cubic meter (Mm³) of
surfacewater is discharged every year through the GBM river basin; that is
equivalent to 5.52 m deep water over a land area of 144,000km².
Table 2.2: Surfacewater Resources in Bangladesh54
1 Rainfall
Average annual rainfall of the country is approximately 2360 mm (1975–2005) and
regional distribution of annual rainfall is variable. The NW and SW regions of the
country receive less rainfall as compared with other regions.
Table 2.3: Rainfall of Bangladesh in mm55
54
M Inamul Haque, Water Resources Management in Bangladesh (Anushilan, 2008) 23.
55
Ahmed and Roy, above n 53, 38.
37
The availability of rainwater is limited by the rainfall intensity, distribution over the
year and availability of suitable catchment area. The distribution of monthly rainfall
over the year presented in Figure 2.4 shows that the 75% of the rainfall occurs during
May to September but the monthly distribution of this rainfall is highly uneven.
Figure 2.4: Monthly Distribution of Rainfall in a Normal Year56
2 Transboundary Flow
Bangladesh shares 57 transboundary rivers, 54 incoming from India and the rest
from Myanmar. The crucial issue of the transboundary flow is the diminishing
inflow to Bangladesh. Due to absence of a water-sharing treaty, and indiscriminate
and unilateral upstream withdrawal of water of the common rivers, a water crisis
situation prevails in Bangladesh. The total annual volume of water that enters the
country from the transboundary rivers is approximately 1000 BCMs. Although these
amounts seem high, the difference between the peak flow and the lean flow show the
vulnerability of the transboundary flow to meet water demands during the dry season.
56
Md. Shamsuddin Ahmed, ‘Possible Uses of GPM Data in Bangladesh’ (17 July 2013) Bangladesh
Meteorological Department <http://www.eorc.jaxa.jp/GPM/ws5/en/materials/6.11.1_Ahmed.pdf>.
38
Table 2.4: Peak and Lean Flow in the Major Rivers57
Except for the three major rivers, in almost all the shared rivers, there is no flow
during the driest period of the year. Due to indiscriminate and unilateral upstream
withdrawal of water of common rivers during lean periods, a water crisis situation is
prevailing in Bangladesh. The SW region of the country is the most affected, in part
due to upstream withdrawal.
The rainfall and river flows within the country demonstrate the seasonal extremes and
the contradictory situations.58 The country suffers from both floods and droughts as a
consequence of this extreme condition. During the monsoon, intensive local rainfall
and the high volume of river flows cause floods and more than 60% of the country’s
net cultivable areas are inundated at least once in every 10 years. By contrast, the net
availability of surfacewater during the dry season is significantly reduced and
unpredictable pre-monsoon rainfall can cause serious soil moisture deficits.
Rainfall and the transboundary flows of surfacewater are the two main sources of
inland water in Bangladesh. Availability of the water from both these sources is
variable both spatially and seasonally. The country experiences heavy rains in the
monsoon; about 80% of the total rainfall is only in a three month period starting
from May. It does not rain much in the dry period during the rest of the year. Water
is deficient, sometimes acutely during the dry season. Of the total availability of
water in the country throughout the year, 84% comes at surfacewater flow through
the transboundary rivers, with maximum monthly flows in August and the minimum
57
Ahmed and Roy, above n 53, 38.
58
Giasuddin Ahmed Chowdhury, ‘Participatory Water Management Approach in Bangladesh’
(Symposium Proceedings, Regional Centre on Urban Water Management-Tehran, 15–16 December
2003) 70.
39
in February. Flows in the dry winter months in the major rivers fall sharply and even
most small rivers seen to dry up.59
3 Water in Standing Water Bodies
In addition to natural rivers, water is retained in localised low pockets (haors, baors,
and beels) and ponds. Kaptai Lake has a storage capacity and is the only reservoir in
the country. Total volume of water of such standing bodies is about 0.61 BCMs.
Table 2.5: Surfacewater Storage in Bangladesh60
4 Water in Seasonal Wetlands
Approximately 80% of the total area of Bangladesh is floodplains and become
seasonal wetlands during the monsoon period. The seasonal wetlands remain
inundated from a few days to as long as several months. This seasonal storage
provides no contribution during the dry period when the country needs water.
Estimated volume of water stored in these seasonal wetlands is approximately 2.69
BCMs.61
59
Mohammad Humayun Kabir, ‘The Policy and Law of Bangladesh Concerning the Utilisation of
Her Water Resources’ in Surya P Subedi (ed) International Watercourses Law for the 21st Century The
Case of the River Ganges Basin (Ashgate Publishing, 2005) 211, 212.
60
Haque, above n 54, 25.
61
Ahmed and Roy, above n 53, 39.
40
5 In-stream Water Storage
Numerous channels criss-cross the entire country and store water in the rainy season,
but they become completely dry in the dry season. 62 The estimated volume of
channel storage is approximately 0.5 BCMs.
I
Groundwater
Groundwater is conventionally available in aquifers spread through all the
hydrological regions of the country. Bangladesh is entirely underlain by water
bearing aquifers at depth varying from 0 to 20 m below the ground surface. 63
Groundwater is available in adequate quantities in Bangladesh but the availability of
groundwater for drinking purposes has become a problem.64 Groundwater potentials
depend on availability of water in the shallow aquifers and storage in the deep
aquifers. 65 An appreciable quantity of groundwater underlies about 56% of the
country. In other areas, available groundwater is sufficient only to support a limited
amount of domestic and municipal uses. Mainly, the NE, SE, EH and the southern
parts of the SW and SC rely upon surfacewater to meet all their needs.66 In both the
SW and NW regions, principally along the western border, groundwater availability
indicates that deficit may arise because recharge trends are less. However, despite
the rapid growth in groundwater-based irrigation in the last 15 years, in most areas
groundwater levels continue to return each year to the same level. However,
groundwater levels are falling in Dhaka67 due to heavy abstraction.
62
Ibid.
63
Ibid 40.
64
Arsenic and excessive dissolved iron in groundwater or lowering of groundwater level, for example.
65
Haque, above n 54, 29.
66
NWMP, above n 38, 28.
67
Dhaka is the capital city of Bangladesh and almost 12 million people live here.
41
Figure 2.5: Change in Depth to Groundwater in January from 199768
Bangladesh receives an average 2300 mm rainfall per annum but the mighty rivers
systems of the Ganges69 (local name Padma), the Brahmaputra70 (local name Jamuna)
and the Meghna bring three times extra water from the catchments of Bhutan, China,
India and Nepal. Flowing inside Bangladesh, these three rivers interlink together
through their branches and distributaries and make a combined river system flowing
into the Bay of Bengal and form the biggest delta in the world.71 Though Bangladesh
is blessed with heavy rainfall, has readily accessible groundwater and large river
systems, water scarcity for drinking purposes is the major problem due to arsenic
contamination in groundwater and surfacewater pollution from point and non-point
sources.
V DEFINITION OF WATER POLLUTION
Grammatically, the term ‘water pollution’ may mean both ‘the action of polluting’ as
well as ‘the condition of being polluted’. 72 Water pollution is the degradation of
water quality, as measured by biological, chemical or physical criteria that can make
68
NWMP, above n 38, 28.
69
The Ganges is the second largest river in the Indian sub-continent by discharge and 2510 km in
length. The river rises in the Gangotri Glacier at the western Himalayas in the Uttarkhand state of
India, pass through the lands of India, Nepal and Bangladesh and falls in to the ocean (Bay of
Bengal).
70
Brahmaputra rises in the Jima Yangzong Glacier near Mount Kailash in the Northern Himalayas
and is a major transboundary river in Asia.
71
Haque, above n 54, 15.
72
According to Oxford Advanced Learner’s Dictionary, International Students’ Edition, ‘pollution’
means: 1. the process of polluting and 2. the state of being polluted.
42
water unsuitable for desired uses such as bathing, drinking or fishing, and can have
serious effects on the health of humans and animals through contact or ingestion.73
The most widely accepted definition of the term ‘water pollution’ means any
detrimental alteration in the composition or quality of the waters that results directly
or indirectly from human conduct.74 Water is considered polluted when it is unfit for
its intended use. 75 Another definition of pollution is that of the Economic
Commission for Europe of the United Nations (UNECE), which defines a
watercourse as being polluted when the condition of the water ‘is directly or
indirectly modified as a consequence of the activities of man to such an extent that
these water are less apt to be used in their natural state’.76
Water pollution means contamination or other alteration of the physical, chemical or
biological properties of any waters,77 including change in temperature, taste, colour,
turbidity or odour. Water pollution is any chemical, physical or biological change in
the quality of water that has a harmful effect on any living thing that drinks or uses
or lives (in) it. Pollution can also make water unsuited for the desired use. 78 That is,
water pollution is any contamination of water with chemicals or other substances that
are detrimental to human, plant or animal health. These pollutants include fertilisers
and pesticides from agricultural runoff; sewage and food processing waste; lead,
mercury, and other heavy metals; chemical wastes from industrial discharges; and
chemical contamination from hazardous waste sites.79 Any change in the physical,
chemical and biological properties of water that has a harmful effect on living things
73
Christopher F Mason, Biology of Freshwater Pollution (Pearson Education Limited, 4th ed, 2002).
74
United Nations Convention on the Non-Navigational Uses of International Watercourses (1997) 36
ILM 700 art 21.
75
Syed H Rahman, Shafi M Tareq and Tanveer Ahmed, ‘Degradation of Riverine Ecology Causes,
State and Impacts’ in Ahsan Uddin Ahmed (ed), River pollution Concerns and Expectations
(Anushilan, 2009) 21, 21.
76
Dante A Caponera, Principles of Water Law and Administration National and International (Taylor
& Francis, 2nd ed, 2007) 225;
77
Water means all waters, including all streams, coastal waters, tanks, lakes, ponds, reservoirs,
marshes, watercourses, waterways, wells, springs, irrigation systems, and all other bodies or
accumulation of waters, surface or underground, natural or public or private.
78
Water Pollution FAQ (20 January 2011)
<http://www.lenntech.com/water-pollution-faq.htm>.
79
Water
Treatment
Solutions
Lenntech
Water Pollution (12 August 11) National Institute of Environmental Health Sciences
<http://www.niehs.nih.gov/health/topics/exposure/water-poll/index.cfm>.
43
is water pollution. It affects all the major inland water bodies such as rivers, lakes
and groundwater.
Water can be polluted in a number of ways. Substances such as sewage, chemical
effluents and detergents are commonly released into water deliberately as well as
accidentally.80 Based on their severity, water pollutants can be divided in different
categories. The first category is disease-causing agents such as bacteria, viruses,
protozoa and parasitic worms that enter through sewage systems and untreated waste
and contaminate the water. A second category of water pollutants is oxygendemanding wastes that can be decomposed by oxygen-requiring bacteria. When
large amounts of decomposing bacteria are converting these wastes, it can deplete
oxygen levels in the water. A third category of water pollutants is water-soluble
inorganic pollutants such as acids, salts and toxic metals. Another class of water
pollutants are nutrients; they are water-soluble nitrates and phosphates that cause
excessive growth of algae and other water plants, which deplete the water’s oxygen
supply.
Water can also be polluted by a number of organic compounds such as oil, plastics
and pesticides, which are harmful to humans and all plants and animals in the
water. 81 A very dangerous category is suspended sediment, because it causes
depletion of the water’s light absorption and the particles spread dangerous
compounds such as pesticides through the water. Finally, water-soluble radioactive
compounds can cause cancer, birth defects and genetic damage and are thus very
dangerous. The essence of the concept of water pollution is that a detrimental change
takes place in the composition, content or quality of the water. 82 It may be that
certain changes of the water are already individually detrimental to a specific use of
water. Each of those changes constitutes already in itself an instance of water
pollution.
80
Justine Thornton and Silas Beckwith, Environmental Law (Thomson/Sweet and Maxwell, 2nd ed,
2004) 205.
81
Water, above n 79.
82
J G Lammers, Pollution of International Watercourses: A Search for Substantive Rules and
Principles of Law (Martinus Nijhoff Publishers, 1984) 10.
44
VI INLAND WATER POLLUTION IN BANGLADESH
For the purpose of this thesis, inland water pollution is defined as the contamination
of inland water bodies such as lakes, rivers and groundwater. Pollution occurs when
pollutants are discharged directly or indirectly into water bodies without adequate
treatment to remove harmful elements. It affects organisms, plants and individual
species that live in these water bodies, destroys natural biological communities and
can cause harm to the people.83
Bangladesh is at the tail end of one of the largest river system in the world, with
numerous rivers and abundant groundwater. 84 The sources of inland water in the
country are under stress and with its large population, high level of poverty,
urbanisation and economic growth, this stress is very much expected to grow.
Though the country is blessed with natural water sources, water quality always
remains a key issue. Sources of contaminants and changes in water quality can be
mainly characterised as point sources, 85 non-point sources 86 and natural sources, 87
which may be point or non-point.88
J
Point Sources of Water Pollution
Point source pollution is generally defined as contamination discharged through a
pipe or other discrete, identifiable location. Pollution from a point source is relatively
easy to quantify and impacts can be directly evaluated. 89 Point source pollution
refers to contaminants that enter water bodies through a discrete conveyance, such as
83
Mrinmoy Majumder et al, ‘Estimation of the Spatial Variation of Pollution Load by Neural Models
and Surface Algorithms’ in Bipal K Jana and Mrinmoy Majumder (eds) Impact of Climate Change on
Natural Resource Management (Springer, 2010) 203, 204.
84
Mahesh Chandra Chaturvedy, Ganga-Brahmaputra-Meghna Waters Advances in Development and
Management (CRC Press Taylor and Francis Group, 2013) 153.
85
Point sources can be identified easily where the discharge is from a single pipe or channel.
86
Non-point sources are sometimes called diffuse sources where the contaminants are dispersed on
the land and carried to the stream by rainwater.
87
Natural sources can include runoff of sediments, volcanic ash, salt discharge from spring, and any
other source that arises from a natural process.
88
Neil S Grigg, Water Resources Management Principles, Regulations, and Cases (McGraw-Hill,
1996) 56.
89
Thomas V Cech, Principles of Water Resources History, Development, Management, and Policy
(John Wiley & Sons, Inc, 2nd ed, 2005) 113.
45
a pipe or ditch.90 Examples of sources in this category include discharges from a
sewage treatment plant, a factory or a city storm drain. 91 Inland water pollution
arises from a wide variety of human activities. Prime reasons for water quality
degradation are: inadequate sanitation and random discharge of faecal matter, the
expulsion of municipal and industrial wastes and intrusion of salt water into
freshwater aquifers. 92 Inland water pollution can originate from easily identifiable
‘point’ sources, such as effluent pipes from industries or sewage treatment works.
Household and industrial activities are two main point sources of inland water
pollution.
6 Household Activities
Water is needed for various types of household tasks and domestic use of water is
the most prioritised sector of freshwater demand. In daily life, human beings produce
many kinds of wastes. For example, sewage wastes, waste water from cooking and
cleaning; waste substances range from organic materials to inorganic chemicals
(detergents to pesticides). Organic materials are food and vegetable waste, whereas
inorganic materials come from soaps and detergents. Usually, people dump the
household wastes in the nearby water source that leads to water pollution. The
amount of organic wastes that can be degraded by the water bodies is measured in
terms of Biological Oxygen Demand (BOD).93 The higher the amount of BOD, the
more water is polluted with organic waste. Most of the people of Bangladesh are not
aware of the fact that soaps and detergents increase levels of phosphate in water
bodies. These phosphates often lead to algal bloom, which is most common in
stagnant water bodies such as ponds and lakes, and lead to the suffocation of fish and
other organisms in a water body.94
90
Examples in this category include industrial effluents, discharge from a sewage and urban, domestic
or municipal wastes.
91
Majumder et al, above n 83, 206.
92
A Review of Key Environmental Issues in Bangladesh (1997), The World Bank, Dhaka.
93
BOD is the amount of oxygen needed by microorganisms to decompose the organic waste present
in the sewage.
94
Causes of Water Pollution (14 August 2011) Buzzle <http://www.buzzle.com/%s/what-is-waterpollution.html>.
46
Due to the growth of population and increasing unplanned urbanisation, the amount
of discharge of wastes from households is high and increasing. Water demands for
drinking purposes augment in parallel with population growth, while modern
standards of living require increased amounts of water.95 Based on this fact, inland
water pollution, caused through domestic activities is recognised as a major source
of pollution. A rapid growth of urbanisation in Bangladesh has produced enormous
amounts of domestic and municipal wastes. Generally, surfacewater bodies are the
destination for such wastes and are extensively contaminated in most of the
hydrological region of the country.
7 Industrial Activities
Water is an essential component of most manufacturing industries. Industry as an
essential factor of economic growth requires adequate amounts of good quality water
for various purposes of use.96 After being used in industries, much water is returned
to local water systems. Water discharged by industries may be of poor quality and if
not treated adequately threatens the surface and groundwater resources. Damage to
water resources by industrial activity is not always limited to local freshwater
resources but persistent organic pollutant may pollute waters far removed from
industrial centres.
Like other human activities, industrial production is dependent on water for
processing, cooling and evacuation of effluents. This category of needs is rapidly
increasing. Population growth contributes to that increase in a minor way but income
growth and diversification of needs play a greater role in this case. 97 Industrial
activities have been identified as another significant source of inland water pollution.
Inland water can be polluted by a wide variety of industrial effluents, which may be
classified according to their physical and chemical characteristics. The nature of
industrial pollutants are differs from industry to industry and affecting the water in
different ways. Though Bangladesh is in the early stage of industrialisation, the
practice of directly discharging untreated effluent into water resources has made
95
Caponera, above n 76, 1.
96
Such as raw materials, processing and washing of raw materials, cooling of the boilers and
discharging effluents.
97
Malkina-Pykh and Pykh, above n 23, 154.
47
some of the inland water resources highly polluted—often known as ‘hot spots’.
Water pollution from industrial wastes is an issue of serious concern in the water
resources along the major industrial belt of the country. The groundwater in the
neighbourhood of these areas is also being contaminated where aquifers are
recharged from the polluted water resources. This scenario is indeed alarming
because most of the domestic supply of water comes from groundwater sources.98
Industries are the main sources of point source pollution in Bangladesh. Industrial
hubs of the country are mostly located along the banks of water resources and
discharge their effluents directly to the water bodies without any treatment. The
highest number of industrial establishments is located in the NC region of the
country, comprising about 49% of the total sector. The region-wise numbers of
industrial establishments and the most polluting industries as identified by UNEP are
shown in the following table.
Table 2.6: Region-Wise Number of Polluting Industries (UNEP, 2001)99
Region No. of
Textiles,
establishments apparels,
tanneries
Paper, paper
products,
printing
Chemicals, Non-metallic
plastics,
minerals
petroleum manufactures
NW
4403
545
113
181
360
NC
12133
4093
707
1242
733
NE
1117
55
20
47
132
SE
5024
821
170
314
778
SW
849
72
39
42
199
SC
1408
128
29
77
157
Total
24934
5714
1078
1903
2359
The DoE compliance report of the enforcement committee (2009) depicts that most of
the industries in the country are operating without environmental clearance or
adequate pollution fighting devices. Major industries polluting inland water are textiles,
tanneries, pulp and paper mills, fertiliser, cement, industrial chemical producing units
98
K B Sajjadur Rashid, Water Resources Management with Examples from Bangladesh (AH
Development Publishing House, 2011) 83.
99
Rahman et al, above n 45, 43.
48
and refineries. A complex mixture of hazardous chemicals100 from different industrial
effluent can be discharged indirectly via sewage treatment plant or directly into the
inland water sources. The majority of the industries of Bangladesh have been
established close to the rivers, thus let flow their untreated effluents directly into rivers
to minimise cost and expedite convenience without any obligation of compliance with
laws. Such industrial waste is one of the major reasons for pollution of inland water in
Bangladesh. Degradation of inland water sources has an inherent consequence on
economic development. In developing countries, environmental impact has always
been a lesser priority compared to remedial actions to compensate for or to reduce
pollution. Thus, negligence of water quality problems often leads to a waste of
(economic) resources, which can be prevented if the water quality problems are given
proper attention in the first place.101
Various indicators and key parameters of water quality, which include pH, Dissolved
Oxygen (DO), BOD, Chemical Oxygen Demand (COD), Total Dissolved Substances
(TDS), Total Suspended Substances (TSS) and Electrical Conductivity (EC), are
monitored by DoE.102 Industries, particularly those based on chemical processes such
as oil refineries, the manufactures of synthetic materials and paper mills, utilise
considerable quantities of water.103 Bangladesh has emerged best of the three largest
garments manufacturing countries in the world. The garment sector now accounts for
about 77% of the country’s foreign exchange earnings and 50% of its industrial work
force. 104 The garment industry uses a large quantity of water in its production
100
Such as sulphuric acid, salicylic acid, ammonium sulphide, chrome, various salts, oil, sodiumsulphide, ethane and soda ash.
101
H Larsen and N H Ipsen, ‘Framework for Water Pollution Control’ in Richard Helmer and Ivanildo
Hespanhol (eds), Water Pollution Control: A Guide to the Use of Water Quality Management
Principles (E & FN Spon, an imprint of Thomson Professional, 1997) 275, 275.
102
pH is the measure of acidity or alkalinity, which if it exceeds the limit, indicates that the water is
alkaline and, if it goes below the standard, indicates that the water is acidic. DO is essential to all
forms of aquatic life and without sufficient DO (4.5–8 mg/1) rivers, canals, streams and lake waters
became uninhabitable to aquatic organisms. BOD is a measure for aquatic lives in water. High BOD
in water indicates definite threats to the aquatic life. COD is often used as a measurement of
pollutants in natural and waste water. Excessive COD level indicates that the water has received more
chemical wastes that it can assimilate. Measurement of TDS and TSS are important as they are
responsible for pollution in the aquatic environments. An increase in these standards indicates bad
quality of water. The EC values are usually used for indicating the total concentration of the ionized
constituents of pollutants in water.
103
Caponera, above n 76, 1.
104
Asia Invest, Guidebook for European Investors in Bangladesh (European Commission, 2001) 14.
49
processes and highly polluted and toxic waste waters are discharged by them into
sewers and drains without any kind of treatment.105 Thus, the availability of water is
both a prerequisite of and the limiting factor to the economic development of a
country.
K Non-point Sources of Inland Water Pollution
Non-point source pollution refers to diffuse contamination that does not originate
from a single discrete source. This type of pollution is generated from broad, diffuse
sources that can be very difficult to identify and quantify. Non-point source
pollutants enter rivers, lakes and other bodies through surface and groundwater
movement and even from atmosphere through precipitation. 106 Non-point source
pollution is often the cumulative effect of small amounts of contaminants collected
from a large area.107 Inland water pollution can originate from ‘non-point’ sources
that are not easily identifiable, such as fertilisers being carried into a stream by rain
in the form of runoff. Many of these pollutants that reach surface and groundwater
resources through widespread runoff are called ‘non-point’ sources of inland water
pollution.108 While technology exists for point sources of pollution to be monitored
and regulated, non-point sources are much more difficult to control.
Agriculture has been and remains of vital importance for the provision of food and
employment for growing populations worldwide. Indeed, agriculture is the major
water user worldwide: around 70% of total withdrawals are for irrigation. As
demand for agricultural product increases, needs for additional irrigated land and
corresponding water supplies also mount. In developing countries, irrigated areas
represent 16% of all cropland and provide 37% of the production, implying
productivity three times as high as that of other lands.109 Agriculture is the main user
of freshwater, consuming 70% of total withdrawals for human use, and will continue
105
M M Islam et al, ‘Textile Dyeing Industries in Bangladesh for Sustainable Development’ (2011)
2(6) International Journal of Environmental Science and Development 428, 428.
106
Cech, above n 89, 114.
107
Runoff of chemical fertilisers and pesticides over an agricultural field is the common example of
non-point source pollution.
108
A Hussain and M R Asi, ‘Pesticides as Water Pollutants’ in P Bhattacharya et al (eds) Groundwater
for Sustainable Development Problems, Perspectives and Challenges (Taylor and Francis, 2008) 95.
109
Malkina-Pykh and Pykh, above n 23, 154.
50
to use more water than any other area of human activity. 110 Growing more food
requires more water whether production is irrigated or rain-fed. Water demand for
irrigation will substantially increase because of irrigated lands expansion.
Groundwater is always an important source of irrigation but there is overpumping of
aquifers, pollution from agrochemicals and other issues of concern in certain areas.
Agricultural activities are a significant source of inland water pollution both in terms
of pesticides and fertilisers leaching into watercourses. Pollution from the
agricultural runoff results from the use of fertilisers 111 and agrochemicals like
pesticides and herbicides. Agrochemicals used in the agricultural fields are washed
off into the adjoining water bodies. The water-soluble nitrates and phosphates cause
changes in the taste and smell of the water. Runoff from the irrigated lands pollutes
the surfacewater and causes toxic substances in the food chain. 112 It also openly
affects the aquatic ecosystem and its biotic component. In Bangladesh, over 90% of
the water diverted from natural courses or from aquifers during the dry season is
used for irrigation, while water scarcity during wet season is normally an unknown
phenomenon.113 Although at present agriculture consumes the major part of water
resources, demand from household activities and industries are increasing.114
Pollution of inland water practically affects all living beings but it is critically a risk
to every part of human life. Given its importance and the many reasons of its
decreasing quantity and quality, inland water is an issue of concern for the survival
of all living beings. Shortage and misuse of inland water can create severe present
and future consequences. It affects climate conditions, sustainable socioeconomic
development, environment protection and health issues, among others. Inland water
is polluted through various types of activities, from household to agriculture.
Increasing concentration of people in urban growth centres, the domestic and
110
Rashid, above n 98, 28.
111
Urea, triple super phosphate (tsp), muriate of potash (mp) and gypsum are the major chemical
fertilisers used in Bangladesh.
112
Rahman, Tareq and Ahmed, above n 75, 29.
113
Nityananda Chakravorty, ‘Water Pricing in Bangladesh: A Pro-poor Framework Based on Two
Surfacewater
Irrigation
Projects
in
Bangladesh’
(24
May
2013)
<http://www.watertech.cn/english/chakravorty.pdf>.
114
Nasima Tanveer Chowdhury, ‘Water Management in Bangladesh: An Analytical Review’ (2010)
12 Water Policy 32, 46.
51
industrial activities are leading to inland water pollution problem for urban and its
surrounding areas. 115 In the rural areas, runoff of agrochemicals from cultivating
fields have deteriorated inland water quality. Inadequate regulatory measures and
institutional set ups for proper monitoring and controlling means pollutants from
municipal, industrial and agricultural waste enter into the inland water system, with
the result that at a certain point the water is either polluted or lost for further use.
In Bangladesh, major causes of inland water pollution that aggravate water quality
are industrial effluents, agrochemical, faecal pollution and low water flow in dry
season. Inland water pollution caused by domestics wastes, industrial effluents and
agrochemicals are diluted in the monsoon but often rise to alarming proportions in
the low flow season. Industries that use or produce chemicals that discharge
untreated wastes into nearby surfacewater bodies are often responsible for not only
within country but also cross-border water quality problems. A regional approach in
meeting the challenges of cross-border water quality issues through awareness
building, necessary data exchange and mutual assistance in pollution control will
enhance the prospects for maintaining water quality in a transboundary stream.116
VII IMPACTS OF INLAND WATER POLLUTION
Increases of population and development calls for increased allocations of inland
water for the domestic, agriculture and industrial sectors consequently put pressure
on inland water resources.117 The deterioration of water quality over the years due to
various human activities such as sewage effluents, municipal solid waste and
unplanned disposal of untreated industrial effluents are affecting quality of water.
Quality of water used for human consumption is of great importance as it
significantly affects human health. It is, therefore, imperative to assess the water
pollution levels and pollution sources for SD and conservation.118
Bangladesh is thickly populated and aims for self-sufficiency in agricultural
production. The introduction of the new agricultural technology has led to a
115
‘Country Environmental Analysis of Bangladesh’ (Draft No 3, Asian Development Bank, July
2004) 6.
116
Ahmad et al, above n 31, 67.
117
UN Water, Coping with Water Scarcity Challenge of the Twenty-first Century (03 May 2013)
<http://www.fao.org/nr/water/docs/escarcity.pdf>.
118
Hussain and Asi, above n 108, 95.
52
considerable increase in water, fertiliser and pesticide use. The phenomenal increase
in irrigated land area has been due primarily to increases in the use of inland water
(both surface and groundwater). The use of surfacewater for irrigation has increased
slowly while the area under groundwater irrigation has had a spectacular increase in
the last two decades.119 The extraordinary growth in groundwater irrigation, wastage
and overuse is likely to limit the capacity to use this vital resource. Also, the use of
fertilisers and pesticides are necessary for intensive farming. Chemical fertilisers and
pesticides containing nitrogen (N), phosphorus (P) and potassium (K) are potential
contamination sources of water. 120 NPK contaminations are increasing at a much
higher rate in developing countries compared with industrialised nations. 121 Most
water bodies in Bangladesh where agriculture and animal husbandry are practised at
an intensive scale already show serious signs of contamination. There is inadequacy
of knowledge and awareness of the extent of this contamination and the impact on
the groundwater resource. Therefore, agricultural growth in Bangladesh has entailed
significant damages in inland water resources. It seems clear that the country has
failed to appreciate the value of water as a factor of production. 122 Existing
knowledge indicates that agricultural operations can contribute to water quality
deterioration through the release of several materials into water. 123 However, inland
water pollution has always posed a serious challenge due to its impact on a large
number of economic activities.124
The impacts of water scarcity in terms of quantity and quality are immense, having
effects on its demand for consumptive 125 and non-consumptive use. 126 Consistent
119
Mohammad Alauddin, ‘Recent Development in Bangladesh Economy’ (Paper presented at
conference to mark 10 years of Australia South Asia Research Centre, Australian National University,
27–28 April 2004) 9.
120
Anwar Zahid and Syed Reaz Uddin Ahmed, ‘Groundwater Resources Development in Bangladesh:
Contribution to Irrigation for Food Security and Constraints to Sustainability’ 27, 41 (26 March 2011)
< http://publications.iwmi.org/pdf/H039306.pdf>.
121
Asit K Biswas and Cecilla Tortajada, ‘Water Quality Management: An Introductory Framework’
(2011) 27(1) Water Resources Development 5, 6.
122
Alauddin, above n 119, 9.
123
For example: pesticides, animal manures, fertilizers and other sources of inorganic and organic
matter.
124
Discussed in Chapter 3 III.
125
Any use of water that permanently removes water from the natural stream system and is not
available for immediate reuse, such as household activities.
53
data is a limiting factor at the same monitoring point, thus analysis of surfacewater
quality has become a daunting task. In addition, the seasonality of flow in the
watercourses imposes a significant constraint to their ability to dilute and disperse
effluent discharged. 127 Arguably, there are ‘hot spots’ of water pollution due to
industrial effluents around the major cities of the country where industrial effluents
are discharged into nearby land and water bodies without any treatment. With a few
exceptions, 128 the overall inland surfacewater quality in the monsoon season is
within tolerable limits. 129 Nevertheless, concerns over surfacewater quality are
gradually emerging due to the isolated locations of polluting industries.
Many of the major problems Bangladesh is facing are related to water quantity
and/or water quality issues. The availability of water resources in adequate quantity
and quality in the future are uncertain.130 Broad forces such as population growth,
climate change, urbanisation and industrial development all have impacts on water
supply. All these will affect the availability of water in a number of ways, such as
increasing demand and changes in the hydrological cycles. Population growth could
affect water resources by increasing demand as well as by altering conditions that
influence the quantity and quality of water. 131 Population growth has an obvious
effect on water demands and also on those factors that will affect water supply and
quality.
Health is another concern related to inland water. Pollution of inland water resources
are the main causes of waterborne diseases. More than one-third of Earth’s
accessible freshwater is consumptively used for agricultural, industrial and domestic
purposes. 132 Most of these activities lead to water contamination with diverse
chemicals, so chemical pollution of water has become a major concern. Chemical
126
Any use or withdrawal of water that is not consumed, for example, hydropower generation. It also
includes multipurpose uses such as boating or fishing where the water is still available for other uses.
127
Rahman et al, above n 45, 48.
128
Exceptions include the rivers Buriganga, Balu, Shitalakhya, Karnaphuli and Rupsha.
129
Rahman et al, above n 45, 48.
130
Richard H Moss, ‘Water and the Challenge of Linked Environmental Changes Head’ (1998) 112(1)
Journal of Contemporary Water Research and Education 6, 7.
131
Ibid.
132
René P Schwarzenbach et al, ‘The Challenge of Micropollutants in Aquatic Systems’ (2006) 313
Science 1072–1077.
54
water pollutants can be divided into two categories: macro-pollutants133 and micropollutants.134
Table 2.7: Sequence of Water Pollutant Sources and Their Impacts
Pollutant
sources
Source
type
Pollutant types
Quality problem
Major
challenges
Agriculture
Nonpoint
Pesticides
Contamination of
ground and
surfacewater with
biologically active
chemicals, accidental
poisoning in
developing countries
Control of
pesticide
runoff from
agricultural
land and
pesticide
misuse
Urban
wastewater
Point
Microorganisms
and viruses
Human health, child
mortality and
malnutrition
Improving
sanitation and
hygiene, safe
drinking water
Multiple
(waste sites,
spills,
combustion
and others)
Point
and
Nonpoint
Persistent
organic
pollutants
(POPs)
Biomagnification in
food chain, diverse
health effects
Phase out
existing
POPS,
confine
existing
sources,
prevent use of
new POPs
The above table gives an overview of different sources of water pollution ranging
from long-term persistent organic pollutant to short-term regional or even local
pollutants. The varieties of pollution also demonstrate that any strategies to solve a
water pollution problem have their own technical, economic, political and societal
conditions.135
Water demand has increased in Bangladesh with population growth and economic
expansion. 136 Overexploitation and the inappropriate development of inland water
133
The relatively small number of mostly inorganic pollutants occurring at the milligram per litre
level.
134
The thousands of inorganic and organic trace pollutants occurring at the nanogram to microgram
per litre level.
135
Schwarzenbach et al, above n 132, 115.
136
Yatsuka Kataoka, ‘Water Resource Management in Asia: Integration and Interaction for a Better
Future’ in Timothy Skye (ed), Sustainable Asia 2005 and Beyond: In the Pursuit of Innovative
Policies (Institute for Global Environmental Strategies, 2005) 54, 56.
55
resources could result in significant environmental degradation. 137 Inland water
pollution has often seriously damaged local fisheries. Heavy metal and toxic
chemicals contained in effluent from industry and agricultural use of fertilisers and
pesticides have serious human health impacts. 138 Deterioration of inland water
quality is recognised as one of the most serious environmental problems throughout
the country. Thus, the importance of water as a basic survival need, as an input for
agriculture and economic development activities, requires greater attention through
an effective management regime that will include necessary policy, legal and
institutional changes.
Environmental degradation, hydrological variability, as well as urbanisation and
industrialisation put pressures on inland water resources. Such challenges are
daunting in Bangladesh because of the high rates of population growth and
urbanisation. Disputes resulting from the competing demands between different
users and uses at the local, national and international levels keep multiplying.
Utilisation of shared waters by one country is now, more than ever before, having
more direct effects on other countries sharing the same watercourse, whether that is
surface or groundwater.139 Nowadays, inland water pollution is an issue of regional
as well as international concern. To some extent, the freshwater resource crisis has
received the most attention from the regional and international organisations and
states.140 In this respect, territorial sovereignty is crucial in determining the extent of
power to be exercised in managing and controlling water pollution. In Bangladesh,
most of the river flow originates outside of the country, so cooperation with the
upper riparians141 is essential for controlling and managing inland water resources.
137
Ibid 57.
138
Ibid.
139
Salman M A Salman, ‘International Water Disputes: A New Breed of Claims, Claimants, and
Settlement Institutions’ (2006) 31(1) Water International 2, 2.
140
UNEP is working at the regional and international level on reviewing existing rules and
regulations, including agreements, relating to transboundary water issues in order to determine the
need for more elaborate principles or standards to ensure sustainable use and development of
transboundary water resources and associated ecosystems. World Water Council (WWC), World
Water Forum (WWF), Food and Agricultural Organisation (FAO) and many other international and
regional organisations are working in the water sectors to make the world for water secured.
141
Bhutan, China, India, and Nepal.
56
However, controlling transboundary sources needs to be planned and implemented
regionally or internationally to deal with the emerging crisis within specific areas.
VIII
CONCLUDING REMARKS
The inland water resources of Bangladesh and different types of inland water
pollution were categorically discussed in this chapter. The forms of inland water
pollution are diverse, with different types of activities and contaminants being
responsible. Analysis of the different activities has disclosed that pollutants sourced
from different industries, household activities and agriculture are responsible for
deterioration of inland water quality. Surfacewater quality is mainly endangered by
point pollution from insufficiently treated domestic waste water, industrial effluent
and by diffuse sources from agriculture. 142 Overall, the country experiences water
abundance during the wet season and lack of water during the dry season. It is a
necessity to address and balance the conflicting needs of water in different seasons.
Generally, human activities involving the use of water have direct or indirect effects
on inland water pollution. In addition, issues related to transboundary waters are
becoming increasingly apparent and, indeed, intertwined with domestic uses and
needs. However, if not adequately planned and managed, water use may cause
detrimental effects to the water itself and to other natural resources. All these effects
can be avoided through the enactment of adequate water legislation and the
establishment of appropriate water administration.143 The government has the core
responsibility to ensure that the country’s long-term development needs are met
through appropriate policy measures and sensible infrastructural investment.144 To a
large extent, success in the development protection and conservation of water
resources in a country depends on the effectiveness of water policies, legislations
and implementing institutions. An adequate legislative framework is important, but
there are some other problems and obstacles needed to be overcome to deal with
inland water pollution issues effectively.
142
Hatch-Peter Nachtnebel, ‘The Danube River Basin Environmental Programme: Plans and Actions
for a Basin Wide Approach’ in Aaron T Wolf (ed), Conflict Prevention and Resolution in Water
Systems (Edward Elgar, 2002) 343, 346.
143
Caponera, above n 76, 2.
144
NWMP, above n 38, 33.
57
CHAPTER 3: INLAND WATER POLLUTION IN BANGLADESH:
PROBLEMS AND ISSUES
I
INTRODUCTION
Inland water pollution is a significant threat to the environment and it needs to be
controlled to ensure sustainable economic and environmental development of a
country. 1 The control of inland water pollution in Bangladesh faces enormous
challenges of resolving diverse problems and issues. The most critical of these are
insufficient scientific data, ever-expanding water needs of a growing economy and
population, supply of safe drinking water and different point and non-point sources
of water pollution. The objective of this chapter is to examine, in detail, the specific
problems and issues that are affecting the control mechanisms of inland water
pollution.
The nation is very rich in water resources but there is wide seasonal variation in the
availability of inland water.2 Inland water sources fall in the territory of a particular
state where states have sovereignty. However, this sovereignty needs to be exercised
by different theories and doctrines of managing transboundary water. Moreover, for
most of the developing countries, the acceptable pollution threshold of inland water
is undecided and not constant. This chapter also explores inland water pollution as a
social, environmental and legal problem and identifies other barriers of controlling
inland water pollution, such as poverty, incapacity and subregional conflicts.
II SCIENTIFIC AND TECHNICAL PROBLEMS OF INLAND WATER POLLUTION CONTROL
Science resolves problems through investigation and on the basis of evidence with
observed matters of fact. 3 However, in order to obtain those facts, some wellestablished and mutually agreed measures are important. These measures are also
important from a pollution control strategy point of view; for example, sufficient
scientific data are essential for determining pollution of inland water. Any scientific
data involve a number of activities that can ensure all useful information is available
to undertake an appropriate strategy for pollution control. A scientific databank can
provide useful information about harmful substances that might be introduced into
1
Discussed in Chapter 2 VII.
2
Discussed in Chapter 2 IV.
3
Wesley C Salmon, The Foundations of Scientific Inference (University of Pittsburgh Press, 1967) 76.
58
the inland water sources, information about general effects and impacts of pollutants,
determination of damage and also use of available technologies for monitoring and
controlling of inland water pollution. In order to assess inland water resources and
demands and constraints of water, and to evaluate options and formulate strategies,
reasonably accurate data are much needed. 4 Also, to increase the usefulness,
collected data need to be put into a relational database format and stored in a
centralised, secured and easily accessible location with proper protection facilities.
Both point and non-point sources of inland water pollution are available in
Bangladesh. The multiplicity of point and non-point sources makes it very
challenging to protect inland water from pollution. Point sources are difficult enough
but non-point sources are recognised as the single largest contributor to water quality
problems.5 Identification of all sources is not only difficult but also they are complex
in nature, numerous, diverse and largely invisible. Point sources are easier to identify
and are typically the effluents discharged into the water sources by household
activities and industries. 6 Point source pollution enters water resources directly
through easily identified pipe, ditch or other delivery systems including industrial
and municipal discharges.7 They are end-of-pipe sources, which include waste water
discharge and sewage. Non-point-source pollution enters water diffusely in the
runoff and is often a function of land use. Without any scientific data, it is very hard
to successfully identify non-point sources 8 and this kind of pollution has been
identified as a major reason for water quality problems compared with point
sources.9 However, some progress has been made in reducing agricultural production
4
Md Shah Alamgir, Malik Fida Abdullah Khan and Stephen Brichieri Colombi, ‘Sustainable
Development of National Water Resources Database in Bangladesh and It’s Management Issues’
(Paper Presented at International Conferences on Spatial Information for Sustainable Development,
Nairobi, Kenya 2–5 October 2001) 2.
5
Neil S Grigg, Water Resources Management Principles, Regulations, and Cases (McGraw-Hill,
1996) 309.
6
Discussed in Chapter 2 VI C.
7
Marc O Ribaudo, Richard D Horan and Mark E Smith, ‘Economics of Water Quality Protection
from Nonpoint Sources: Theory and Practice’ (Agricultural Economic Report No 782, Resource
Economics Division, Economic Research Service, US Department of Agriculture, November 1999) iv.
8
Daud Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution, Towards
Effective International Cooperation (Ashgate Publishing Company, 2006) 38.
9
Discussed in Chapter 2 VI D.
59
practices which is generally considered as the largest contributor to non-point-source
water pollution.10
Identified water quality problems may fall into different categories requiring
application of different management tools. For example, if a problem exists at the
national scale, it might be necessary to consider imposing general effluent standards,
regulations or other relevant measures. By contrast, if the problem is limited to a
small geographic region, it might only be necessary to consider issuing a local bylaw or to intervene to settle a dispute through mediation. It may also be useful to
categorise water quality problems as either ‘impact issues’ 11 or ‘user-requirement
issues’.12 Both types of issues require intervention from a structure or institution with
powers that can resolve the issue in a possible rational manner, considering the
prevailing circumstances.13
There is a deficiency of data in relation to both the environmental damage and the
determination of the cause of damage for inland water pollution. In some situations,
the cause and amount of damage and categories of polluters can be determined.
Pollution from identified point sources is an example in this respect. However, in
most cases, it is practically impossible to identify the amount of damage from
harmful release or to establish a link between the source and the damage suffered.14
There are some pollutants that are persistent and toxic in nature that have a
cumulative impact on inland water resources. The effects of these pollutants are
invisible and difficult to distinguish from other sources that cause damaged to inland
water. The combination of these factors indicates the complexity of inland water
pollution and the importance of adequate scientific research on these pollutants.
Proper scientific information and appropriate technological15 and economic16 support
is much needed to undertake a preventive or remedial measure to tackle the
10
Ribaudo, Horan and Smith, above n 7, iv; Discussed in Chapter 2 VI D.
11
Impact issues originated from human activities that have a negative effect on water quality.
12
User-requirement issues derived from inadequacy of specified water quality requirements (demand)
and the actual available quality (supply).
13
H Larsen and N H Ipsen, ‘Framework for Water Pollution Control’ in Richard Helmer and Ivanildo
Hespanhol (eds), Water Pollution Control: A Guide to the Use of Water Quality Management
Principles (E & FN Spon, 1997) 275, 279.
14
R R Churchill and A V Lowe, Law of the Sea (Manchester University Press, 3rd ed, 1999) 389.
15
Technological means the available technology to reduce inputs of pollutant into waters.
60
cumulative effects of inland water pollution. The available data and technology are
insufficient to address the growing demand of the scientific community; economic
and institutional capacity is most responsible factor in triggering such situation. Due
to scientific uncertainties and absence of proper technological support, cumulative
impacts of inland water pollution remain a problem in a developing country like
Bangladesh.
III ENVIRONMENTAL, ECONOMIC AND SOCIAL PROBLEMS OF INLAND WATER
POLLUTION CONTROL
The inland water resources of Bangladesh are facing different problems,17, including
quality hazards in many areas where there is exposure to pollution from agriculture,
urban areas and industrial sites.18 In rural areas, lowering of the groundwater table
due to groundwater abstraction and the over-withdrawal of groundwater for
agriculture mainly causes drawdown in the dry season. However, the groundwater
table regains its static water level in most of the country because of sufficient
recharge of rain water.
Figure 3.1: Groundwater Table Hydrograph from Ground Surface; Dhaka City (NC
Region, BWDB, 2004)
16
Economical means the requirement of considerable financial resources for the attainment of certain
water quality.
17
Discussed in Chapter 2 VI.
18
Anwar Zahid and Syed Reaz Uddin Ahmed, ‘Groundwater Resources Development in Bangladesh:
Contribution to Irrigation for Food Security and Constraints to Sustainability’ (26 March 2011) 27, 39
<http://publications.iwmi.org/pdf/H039306.pdf >.
61
Figure 3.2: Alarming Concentration Level of Aluminium (Al), Cromium (Cr) and
Ferum (Fe) in Topsoil of Some Parts of the NC Region
Industrial activities are responsible for increased heavy metal levels in water in many
areas of the country. Water contamination by heavy metal is an important issue that
is alarmingly increasing by unplanned urbanisation and industrialisation. Most of the
NC part of the country has a presence of a higher accumulation of Al, Cr and Fe in
topsoils (down to investigated 6 m) with a significant amount of Manganese (Mn),
Zink (Zn), Nicole (Ni) and Cuprum (Cu) observed, which has influenced the quality
of shallow groundwater. As a consequence of rapid and unplanned industrialisation,
the problem of industrial effluent has grown significantly. A huge amount of water is
used for industries and industrial effluents are generally discharged into surfacewater
courses and sewers without any treatment or are inadequately treated.
19
Industrialisation has brought the intensive use and extensive diversion of water from
its source of origin.20
Bangladesh needs to increase its agricultural yield by about 2% every year to meet
the needs of the population that will reach 200 million by 2020 with existing growth
rates. Food production depends on the availability of water and the interdependency
19
S A Lipi, H R Khan and S A Hossain, ‘Consequences of Phytoremediation Strategies and
Purification of Industrial Effluents on the Primary Nutrient Status of Plants and Soil’ (2011) 1(4)
International Journal of Current Scientific Research 172, 172.
20
Joseph W Dellapenna, ‘The Customary International Law of Transboundary Fresh Waters’ (2011)
1(3–4) International Journal of Global Issues 264, 269.
62
of these two areas is clearly evident.21 To meet the challenges, the country must rely
on surfacewater sources instead of the withdrawal of groundwater being practiced
presently. In 2000, total annual withdrawals as a share of annual water resources was
96% for agricultural, 3% for domestic and 1% for industrial use. 22 Agriculture
contributes about 30% of the Gross Domestic Product (GDP) in the country.
However, the agricultural sector alone withdraws 86% of total available water, in
which 73% comes from groundwater and 27% from surfacewater. Surfacewater
covers 31% and groundwater covers 69% of the total irrigated area.23 The rivers and
other surfacewater bodies make a major contribution to the agriculture and general
economy of the country by providing water for irrigation and fresh alluvial
sediments to replenish the soil.24
The importance of water can be indicated in many ways and is used for the
production of crops, extracting other natural resources and disposing human and
industrial waste.25 Industrial production is rapidly increasing and heavily dependent
on water for processing, cooling and evacuation of effluents. Population growth
contributes to that increase in a minor way, but income growth and diversification of
needs play a greater role in this case.26 Though rapid industrialisation in developing
countries has contributed to economic development, unplanned industrialisation has
resulted in heavy losses to economic welfare in terms of effects on agricultural
activities, human health and ecosystems through water pollution. 27 Water is an
essential commodity for human existence, is used for consumption, agriculture,
21
Ayreen Khan, Water Security the Threat Facing Bangladesh (12 February 2013) <
http://isites.harvard.edu/fs/docs/icb.topic1239113.files/water%20securitythe%20threat%20facing%20
bangladesh.pdf >.
22
Food and Agricultural Organisation (FAO) Country Profile Bangladesh (28 February 2012)
<http://www.fao.org/countryprofiles/index/en/?iso3=BGD>.
23
Bangladesh Bureau of Statistics, Yearbook of Agricultural Statistics of Bangladesh (Bangladesh
Government Press, 2006).
24
M Abdul Hafiz and Nahid Islam, ‘Environmental Degradation and Intra/Interstate Conflicts in
Bangladesh’ in Kurt R Spillmann and Günter Bächler (eds) Environment and Conflicts Project
ENCOP Occassional Papers (Swiss Peace Foundation 1996) 1, 9.
25
Discussed in Chapter 2 VI 5, 6.
26
I G Malkina-Pykh and Y A Pykh, Sustainable Water Resource Management (WIT Press,
Southampton, 2003) 154.
27
V Ratna Reddy and Bagirath Behera, ‘Impact on Water Pollution in Rural Communities’ (2006) 58
Ecological Economics 520, 520.
63
industry and transportation, among others. Serious scarcity of water will virtually
affect every aspect of human life.28
The problem of inland water pollution acquires greater relevance in the context of an
agrarian economy like Bangladesh. In developing countries, irrigated areas represent
16% of all cropland and provide 37% of the production, implying productivity is
three times as high as that of other lands. Indeed, agriculture is the major water user
worldwide: around 70% of total withdrawals are for irrigation. As demand for
agricultural product increases, needs for additional irrigated land and corresponding
water supplies also mount,29 and the availability of useable inland water has been
shrinking because of various types30 of water pollution.
Scarcity of water and inland water pollution affects environmental, economic, social
sectors and threatens the sustainability of the natural resource base. Untreated
industrial effluents, municipal waste water and runoff pollution from agricultural
activities are cause of contamination. In addition, pressure on water quality is
expected to rise with expansion of urban centres,31 and excessive use of fertilisers
and pesticides is the main source of runoff water pollution in rural areas. 32
Addressing water scarcity requires an inter-sectoral and multidisciplinary approach
to managing water resources in order to maximise environmental, economic and
social benefit.33 Maximum benefit can only be achieved if the natural flow of water
continues into the river; ecosystems of the river are especially sensitive to extremes
in flow.34 Substantial reduction of flow during the dry season as a result of water
28
Nils Petter Gleditsch, Havard Hegre and Hans Petter Wollebaek Toset, ‘Conflicts in Shared River
Basins’ in Velma I Grover (ed), Water: A Source of Conflict or Cooperation? (Science Publisher,
2007) 39, 39.
29
Malkina-Pykh and Pykh, above n 26, 154.
30
Through sewerage, industrial poisoning and harmful chemicals particularly from agricultural
activities are polluting all sources of inland water.
31
‘Bangladesh Country Water Assistance Strategy’ (Report No 32312-BD, World Bank, 20 December
2005) 1.
32
Asian Development Bank, Country Strategy and Programme Bangladesh (2005).
33
UN Water, Coping with Water Scarcity Challenge of the Twenty-first Century (03 May 2013)
<http://www.fao.org/nr/water/docs/escarcity.pdf> .
34
M Monirul Qader Mirza, ‘Vulnerability to the Ganges Water Diversion: Adaption and Coping
Mechanisms’ in M Monirul Qader Mirza (ed), The Ganges Water Diversion: Environmental Effects
and Implications (Kluwer Academic Publishers, 2004) 247, 252.
64
diversion
at
upper-riparian
states
causes
tremendous
socioeconomic
and
environmental losses for Bangladesh.
Figure 3.3: Major Consequences of Reduction of Dry Season Water Flow35
35
Muhammad Mizanur Rahman, ‘Bangladesh – From a Country of Flood to a Country of Water
Scarcity-Sustainable Perspective for Solutions’ (Paper presented at Seminar on Environment and
Development, Hamburg, Germany, 9–10 December 2005) 6.
65
Human intervention through engineering structures for water diversion and water
withdrawal makes the natural resource vulnerable. 36 Experience shows that the
socioeconomic cost to downstream areas and the overall environmental crisis
associated with the resource outweighs the benefits earned or expected. 37 The
diversion of the Ganges stream in the upper-riparian has decreased the regular
natural flow to downstream Bangladesh. It has socioeconomic and environmental
impacts that affect agricultural and industrial production, and also changes the
hydraulic character of the river system and its ecology.
38
Disputes over
transboundary water resources are considered an economic, social and political
problem. The water availability challenges in the transboundary water resources
influence both the quantity and quality of the available water, leading to water
disputes among stakeholder states and creating geopolitical problems. 39 Excessive
withdrawal of the water from different rivers at upstream for about 30 years has
affected not only agriculture but also fishery, industry, navigation, forestry and
vegetation in the NW and SW regions that comprise about one-fourth of the
landmass of Bangladesh.40
In Bangladesh, the overuse of water has been the cause of many serious problems.
As discussed, there is water quality degradation from agrochemicals, industrial and
domestic pollution and groundwater depletion. There is increasing extraction of
groundwater to meet the demand of agriculture. Further, the indiscriminate dumping
of untreated industrial and domestic waste into the inland water sources exacerbates
the situation. The pollution reduces the amount of water available for use, creating
scarcity in the country.
36
Md Jakerul Abedin, The Ganga-Brahmaputra-Meghna (GBM) Watershed Governance: Potential
for a Multilateral Regulatory and Integrated Management Under International Law (PhD Thesis,
Macquarie University 2013) 41.
37
Mirza, above n 34, 251.
38
M Rafiqul Islam, Ganges Water Disputes: Its International Legal Aspects (The University Press
Limited, 1987) 36. Discussed in Chapter 6 VI.
39
Murshed Ahmed, ‘Regional Cooperation on TWRs Management: Opportunities and Challenges’
(Paper presented at the Bangladesh Economic Association Conference, Dhaka, Bangladesh, 2007) 10.
40
Rahman, above n 35, 5.
66
There are high variations in the availability of inland water in different hydrological
regions of the country, as shown in Table 3.1. 41 The focus of the inland water
resources is often on the volume or quantity of available water for different purposes.
Although the water crisis is usually viewed as a water quantity problem, increasingly
water quality is being acknowledged as a central factor. The water quality conditions
in Bangladesh are highly variable depending on social, economic and geographical
factors. All hydrological regions do not face a crisis of water shortage, but all have to
encounter to a greater or lesser extent problems with degraded water quality. In some
hydrologic regions, problems are associated with rivers, in others, it is with
groundwater. Since the range of polluting activities and their impacts vary in
different hydrological regions, there are not any ‘one-size-fits-all’ solutions to this
problem.
Table 3.1: Variation of Availability of Inland Water in Different Hydrological Region.
Region Total area
(km)²
Groundwater Standing
water
River
water
Grand
total
NE
20,061
2500
1147
11,219
14,866
NC
15,949
5066
203
3818
9087
NW
31,606
10,117
317
10,007
20441
SC
15,436
501
282
55,280
56,063
SE
10,284
1540
368
2727
4635
SW
26,226
3172
336
7942
11,450
EH
19,956
Not accessible 15
7921
7936
RE
8607
Not accessible 26
80,890
80,916
Total
148,130
22,896
2694
179,804
205,394
10
1
89
100
%
The NW and NC regions require surfacewater, in contrast, most of the NE, SE and
SW regions are dependent upon it. The development of surfacewater resources in the
SW depend on the Ganges water-sharing treaty and NW, NC and NE regions rely on
41
Kazi Matin Ahmed, ‘Groundwater Contamination in Bangladesh’ in R Quentin Grafton and Karen
Hussey (eds) Water Resources Planning and Management (Cambridge University Press, 2011) 529,
530.
67
the utilisation of the Brahmaputra river water. The development of the Meghna river
water is also required to benefit NE and SE hydrological regions. The EH region has
little groundwater, so development of the surfacewater of this region is viable. Any
medium to long-term surfacewater development plan will be preconditioned by the
availability of flows in the Ganges and the updated assessments of other resources,
principally for the NW and NC regions.42 Apart from the problems inherent in the
country’s hydrological characteristics, there are other problems encountered in the
management and utilisation of inland water sources. A few of these are meeting the
over-expanding water needs of a growing economy and population, satisfying multisector water needs, promoting efficient and socially responsible water use, ensuring
water quality, delineating public and private responsibilities and decentralising state
activities where appropriate.43
IV LEGAL CONCEPTUAL PROBLEMS OF INLAND WATER POLLUTION CONTROL
From the legal conceptual point of view, inland water pollution control issues are
problematic because of conceptualising an acceptable pollution load and the
threshold at which it becomes unacceptable. The threshold defines the legal
boundary between acceptable contamination and unacceptable pollution. However,
many factors can define that threshold boundary line, including the type of
contaminant, economic priorities and social consensus. 44 It is envisaged that for
pollution to occur, contamination must exceed a threshold of acceptable harm.45 In
terms of the contamination considered as caused by pollution, no threshold is clearly
defined yet. Some general terms 46 have been used to presume that a level of
unacceptable pollution can be identified and anticipated. Two main different issues
are discussed below in order to identify the legal conceptual problems of inland
water pollution.
42
Government of the People’s Republic of Bangladesh, ‘National Water Management Plan’ (Report
Vol 5, Ministry of Water Resources, 2001) 18.
43
Mohammad Humayun Kabir, ‘The Policy and Law of Bangladesh Concerning the Utilisation of her
Water Resources’ in Surya P Subedi (ed) International Watercourses Law for the 21st Century The
Case of the River Ganges Basin (Ashgate Publishing, 2005) 211, 213.
44
Hassan, above n 8, 41.
45
William Bush, ‘The 1998 Wellington Convention: How Much Environmental Protection?’ in Joe
Verhoeven, Philippe Sands and Maxwell Bruce (eds), The Antarctic Environment and International
Law (Graham & Tortman, 1992) 69,75.
46
Such as harm, hazards and deleterious effects.
68
A Threshold of Inland Water Pollution
There is not any globally accepted pollution threshold as no constant view of a
pollution threshold is to be found. However, WHO, the European Union (EU) and
other developed countries of the world have set out certain water quality criteria for
individual use categories, but WHO does not directly recommend national
enforceable WQS.47 The national standards that an individual country will develop
can thus be influenced by national priorities and economic factors. It has become a
common practice to set up a baseline for discharges of hazardous substances.48
Approaches to inland water pollution control initially focus on the water quality
criteria. These criteria are developed by scientists and provide basic scientific
information about the effects of water pollutants on particular water use. 49 Inland
water quality objectives are being developed by water authorities in cooperation with
other relevant institutions in order to set threshold values for water quality. These
objectives provide the basis for pollution control regulations and for carrying out
specific measures for the prevention, control or reduction of inland water pollution.
In accordance with the National Drinking Water Quality Survey (NDWQS) 2009,
nine parameters have health based guideline value measured by WHO (see Table
3.2).
47
Ashok Gadgill, ‘Drinking Water in Developing Countries’ (1998) 23 Annual Reviews: Energy
Environment 253, 254.
48
Ute S Enderlein, Rainer E Enderlein and W Peter Williams, ‘Water Quality Requirements’ in
Richard Helmer and Ivanildo Hespanhol (eds), Water Pollution Control: A Guide to the Use of Water
Quality Management Principles (E & FN Spon, 1997) 11, 11.
49
Ibid 12.
69
Table 3.2: Guideline Value of Nine Parameters (All Values in mg/L)50
Water quality guidelines provide guidance as to the effects of chemical substances and
physical attributes, but are not normally legally enforceable. WQS are limits set to the
acceptable concentrations of various chemical substances and the magnitudes of physical
attributes in water, which are legally enforceable. Most countries have their own standards
and/or guidelines that vary quite considerably because WQS legislated by developing
countries and the WHO is often expensive compared with those legislated by more
affluent countries.51 The WHO guidelines most frequently exceeded are for Mn and As. A
substantial number of samples also exceed the Bangladesh guideline value,52 while other
guidelines are met in the great majority of samples. Less than half (48.4%) of household
drinking water samples met all nine WHO guideline values. Shallow tube wells were the
source providing the worst quality drinking water in terms of chemical quality, with deep
tube wells the second worst, although other sources likely had higher microbial
contamination. Fifteen of the parameters measured in NDWQS compared against
Bangladesh drinking quality standard are summarised in the following table.
50
Government of the People’s Republic of Bangladesh, Bangladesh National Water Quality Survey
(Bangladesh
Bureau
of
Statistics,
Ministry
of
Planning,
2009)
153
<http://www.unicef.org/bangladesh/BNDWQS_2009_high.pdf> .
51
Jenny Day and Helen Dallas, ‘Understanding the Basics of Water Quality’ in R Quentin Grafton
and Karen Hussey (eds) Water Resources Planning and Management (Cambridge University Press,
2011) 68, 87.
52
See Table 3.3.
70
Table 3.3: Bangladesh Drinking Quality Standards Value of 15 Parameters (All
Values in mg/L)53
According to the above table, except Mg and Mn, all values are below the Limit of
Detection (LOD). All 15 indicators have exceeded either a Bangladesh standard or a
WHO guideline value, some exceeded by a factor of 10, such as As, Fe and Mn. The
Bangladesh standards most frequently exceeded are for Mn and Fe, followed by Ca.
Fewer than one in five (18.5%) of household drinking water samples met all 15
Bangladesh drinking water standards. It should be noted that Bangladesh has
achieved a very high level of drinking water coverage, largely because highly
productive sand and gravel aquifers underlying most of the flood plain allow for the
easy installation of inexpensive shallow tube wells. More than 98% of people in
Bangladesh use groundwater for drinking, generally considered an improved source
of water. In rural areas, individual water point, most often a tube well with a hand
pump, provides the access. In urban areas, groundwater can be delivered via piped
water systems. Both tube wells and piped water systems are classified as ‘improved
sources’.
53
Bangladesh National Water Quality Survey (2009), above n 50, 155.
71
Water quality54 is most frequently used by reference to a set of standards against
which compliance can be assessed.55 Quality determines the suitability of water for a
particular purpose and most common standards used to assess water quality relate to
drinking water for the safety of human health and for suitability of ecosystems. The
standards of water quality are determined by the intended use of the water. In
Bangladesh, the WQS have been formulated by the DoE. The standards are based
upon WHO guideline levels, modified to take into account local conditions of
ecology and the potential difficulties in enforcing the limits.56
Table 3.4: WQS: Bangladesh (All Values in mg/L)57
Parameter
Drinking
water
Recreational water
Irrigation
Industry
Arsenic
0.05
BOD
0.2
3
10
10
COD
4
4
10
DO
6
4–5
5
Pᴴ
6.5–8.5
6–9.5
SS
10
TDS
500
Temperature
(ᴼC)
20–30
6–8.5
6–9.5
2000, 1500
20–30
20–30
20–30
The parameters for water quality are determined by the intended use of the water.
Generally, water quality tends to be focused on either water treated for human
consumption or in the environment. Three factors that affect water quality in
Bangladesh are: 1) the water quality of inflow from upstream; 58 2) the quality of
54
Water quality is the physical, chemical and biological characteristics of both surface and
groundwater.
55
Mrinmoy Majumder et al, ‘Estimation of the Spatial Variation of Water Quality by Neural Models
and Surface Algorithms’ in Bipal K Jana and Mrinmoy Majumder (eds) Impact of Climate Change on
Natural Resource Management (Springer, 2010) 183, 184.
56
K B Sajjadur Rashid, Water Resources Management with Examples from Bangladesh (AH
Development Publishing House, 2011) 78.
57
Ibid 79.
58
Over 90% of the surfacewater runoff originated from the outside of territory.
72
local runoff, which includes agrochemical and faecal residues; and 3) point source
discharges like industrial effluents or wastes and domestic sewage.59
The physical, chemical, biological and other properties of the water in one inland
water source may differ considerably from the other. It often occurs that a change in
the quality of the water only becomes detrimental for a given water use when a
certain threshold has been conceded.60 As soon as sum of the individual changes in
the quality of the water does reach or cross that threshold, water pollution does take
place in respect to that particular use. The various hydrological regions within a
country are often heterogeneous in terms of population densities, levels of industrial,
agricultural and human activities, as well as physical climatic, economic,
institutional and environmental conditions. 61 However, there is no acceptable
pollution threshold limit for different sources and uses of inland water. To date, no
concrete legal definitions have emerged to deal with the threshold issue, nor yet have
globally accepted pollution prevention standards been established.62
Water quality criteria have been widely established for a number of traditional water
quality variables63 and other nutrients. These are the substances that pose a threat to
water use. These criteria describe water quality requirements imposed on inland
waters such as microbiological as well as inorganic and organic substances. Water
quality criteria have been developed by international organisations. 64 BOD and the
amount of Suspended Solid (SS) in the rivers water of Bangladesh are now
respectively 1.4 times and four times higher than the world average.65 However, all
these criteria provide little positive guidance in determining an accepted water
quality threshold. In order to establish a baseline for water pollution control, priority
should be given to setting objectives for oxygen related variables (such as BOD,
COD and DO). Current approaches to the elaboration and setting of water quality
59
Rashid, above n 56, 78.
60
J G Lammers, Pollution of International Watercourses: A Search for Substantive Rules and
Principles of Law (Martinus Nijhoff Publishers, 1984) 12.
61
Asit K Biswas and Cecilla Tortajada, ‘Water Quality Management: An Introductory Framework’
(2011) 27(1) Water Resources Development 5, 9.
62
Hassan, above n 8, 44.
63
Such as pH, DO, BOD and COD.
64
World Health Organization (2004), European Union (1980).
65
United Nations Environment Programme (1999).
73
differ between countries can be broadly categorised in two groups.66 Nevertheless,
these approaches provide a starting point for further thinking to develop water
quality requirements at a national level. Variability of these organic substances can
launch a useful discussion in any regional and international forum on inland water
pollution control.
Generally, worldwide, three different acceptable regulating methods are used to
control inland water pollution. 67 These are the: effluent standards, environmental
quality standards and total pollutant load standards. The effluent standards aim to
control the pollutant concentration of wastewater. These standards are used to
control most water types. The environmental quality standards aim to control the
pollutant concentration in water bodies. These standards are considered long-term
mandatory targets for administrative guidelines and can be used for developing
environment consciousness in the society. The total pollutant load standards are
applied in large closed public water bodies receiving a large amount of effluent
emitted from daily life and the industrial sector, when WQS cannot be achieved only
by restriction of pollutant concentration. These methods are employed for point
source loads or facilities with identifiable sources of wastewater. It is a future
challenge to take measures against non-point source loads like rainwater and
agricultural wastewater with unidentifiable pollution sources.
An integrated approach to the prevention, control and reduction of inland water
pollution depends on the setting of emission limits on the basis of best available
technology and the use of best environmental practice.68 Water quality serves as a
means of assessing pollution reduction measures. The elaboration of water quality
measures and the selection of a strategy to achieve those necessarily involves an
analysis of the technical, financial and other implications associated with the desired
improvements in water quality.
66
1) Establishment of water quality for individual water bodies, including transboundary waters or
general water quality applicable to all waters within a country and 2) Establishment of water quality
on the basis of water quality classification schemes.
67
Environment Technologies in Japan, Survey Reports on Water Pollution Control and Sludge
Treatment (2006) <https://www.jetro.go.jp/ttppoas/special/env_rep_english/index.html>.
68
Enderlein, Enderlein and Williams, above n 48, 26.
74
Controls over water pollution may take place in two forms—preventive or remedial.
Preventive controls aim to stop pollution before it happens,69 for example, by setting
limits on the concentration of particular pollutants that are permitted to enter certain
waters or by curtailing certain industrial activities that have the potential to cause
water pollution. On the other hand, remedial controls 70 are aimed to tackle the
pollution once it takes place, by punishing the polluter and compensating people who
have suffered as a result of the pollution.71 Both remedial and preventive forms of
control are found to have varying degrees of influence and roles within the
Bangladeshi water pollution regime.
B Limitation of Sovereignty to Protect Inland Water Pollution
A considerable increase in population growth combined with a concentration of
density in cities, industrial development and growing demand for agricultural
products72 all indicate that inland water pollution control is fundamentally a matter
of national concern. Generally, inland water pollution arises73 from an area that is
under the sovereignty of a state. However, this predominance of national control has
raised problems in relation to transboundary and cumulative impacts of inland water
pollution.74 Most states have realised that the assertions of sovereign rights did not
encourage cooperation with other states.75 Indeed, the states that attempted to claim
absolute rights failed to prevail.76
Growing interdependence between states is giving rise to the increasing development
of rules to deal with international environmental responsibility and transboundary
water pollution risks associated with human activity, including substantive rules for
international cooperation and rules for dealing with disputes that arise between
69
By using some guiding principles such as SD, IWRM and AWM.
70
By using preventive principles such as precautionary and polluter pays principles.
71
Justine Thornton and Silas Beckwith, Environmental Law (Thomson/Sweet and Maxwell, 2nd ed,
2004) 206.
72
Lammers, above n 60, 3.
73
Discussed in Chapter 2 VI.
74
Hassan, above n 8, 45.
75
Patricia W Birnie and Alan E Boyle, International Law and the Environment (Oxford University
Press, 2nd ed, 2002) 301.
76
Lac Lanoux Arbitation (France v Spain) 24 Intl L Rep 101 (1957).
75
states. In contemporary public international law, the concept of absolute territorial
sovereignty is no longer recognised.77 It has become accepted that sovereignty is not
absolute or unlimited in scope. Consequently, the scope for discretionary action
arising from the principle of territorial sovereignty is determined by such principles
and adages as ‘good neighbourliness’ and sic utere tuo ut alienum nonlaedas.78 In
addition to that, there are the principles of state responsibility for actions causing
transboundary damage and, more importantly, the prohibition of the exploitation by
a state of the rights enjoyed by it by virtue of international law. The concept of
‘sovereignty’ has undergone many changes in accordance with historical variations
in social and cultural contexts79 deeply embedded in contemporary international law.
In earlier times, states assumed ‘full’ and ‘absolute’ sovereignty and thus could
freely use natural resources within their territories regardless of the impact they
might have on neighbouring states. A thoughtful change in sovereignty occurred in
the 20th century and accordingly a new paradigm starts with the ‘restricted
sovereignty’ doctrine.80 The strongest support for these principles and implications
was summarised in an early decision of that century:
The function of sovereignty is neither unrestricted nor unlimited in a state. It extends as far
as the sovereign rights of other states … a state may not claim more than such independence
and liberty as compatible with the necessary organization of humanity, with the
independence of other states and with the ties and bond together.81
Few would argue today that territorial sovereignty is an unlimited concept enabling a
state to do whatever it likes. State sovereignty cannot be exercised in isolation
because activities of one state often bear upon those of others and, consequently,
upon their sovereign rights. The notion of restricted sovereignty is appropriate in the
area of inland water pollution. Inland water sources come under the territory of a
77
Chinthaka Mendis, ‘Sovereignty v Transboundary Environmental Harm: The Evolving International
Law Obligations and the Sethusamudhuram Ship Channel Project’ (21 April 2011)
<http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mendis
_0607_sri_lanka.pdf >.
78
Use property in such a way as not to cause injury to neighbours.
79
Hassan, above n 8, 45.
80
Laurence Boisson de Chazournes et al, ‘National Sovereignty and International Watercourses’
(Report, Green Cross International, March 2000) 17.
81
El Salvador v Nicaragua (Central American Court of Justice), American Journal of International
Law (1917) 674, 718.
76
particular state and mainly fall within the state water where states have sovereignty.
Therefore, inland water pollution control measures should be undertaken giving
priority to ecological considerations as a common interest, rather than solely
depending on political boundaries. In recent decades, the importance of collaboration
has rapidly increased and is recognised as the core of transboundary water
management. Further, international water law has been influenced by the notion of
SD.82
The various uses of international water sources create technical and juridical
problems. The diverse uses of such waters by one co-riparian can have
transboundary consequences. The clash of jurisdiction over the moving waters,
accompanied by the urge for the protection of respective co-riparian states’ own
interests are bound to give rise to international river law disputes. 83 The differences
and the conflicts between co-riparian states over the waters might manifest a shift
from a traditional extreme concept of sovereignty towards a more liberal and
pragmatic approach.84
There is a customary rule that recognises states cannot alter the composition of a
watercourse to the detriment of other states. It is an obligation of the states to prevent
the pollution of shared water resources and if there has been pollution, there is the
obligation of restitution in integrum, that is, to reconstitute the preceding situation.
In general, this principle becomes operative only if the pollution produces ‘relevant’,
‘substantial’ or ‘significant’ damage or harm to other states and if it is a consequence
of illicit behaviour. Various principles have been called upon to justify this rule, such
as the principle of the abuse of rights, the theory of good neighbourly relations, the
principle of equality of rights, the principle of equitable utilisation and the principle
of not to cause substantial injury in the territory of others.85
82
Discussed in Chapter 4 II A.
83
Daud Hassan (ed), International Rivers: Rights of the Riparian States (Bangladesh Environmental
Lawyers Association, 2009) 30.
84
Sevette, Legal Aspects of Hydroelectric Development of Rivers and Lakes of Common Interests, UN
Doc E/ECE/136- E/ECE/EP/98.
85
Principle 21 of the Stockholm Declaration on the Human Environment, UN Doc A/CONE
48/14/Rev.l (16 June 1972), 11 ILM 1416.
77
The Stockholm Declaration and other international instruments have imposed a
responsibility on states to ensure the activities within their jurisdictions do not cause
any damage to natural systems that have an effect to the environments beyond the
limits of national jurisdiction. These instruments have recognised the importance of
coordinated and integrated management of transboundary water resources to
minimise socioeconomic and environmental impacts. 86 Article 21 of the World
Charter for Nature (1982) reaffirms this and asks states to give supreme importance
to protecting shared natural resources, maintaining the balance and quality of nature
and conserving resources in the interests of present and future generations.87
C Theories and Doctrines of Managing Transboundary Water
Managing transboundary water among the riparian states is a historical problem and
is the main reason of conflict between the states around the globe. Many states have
brought such matters in front of the ICJ and international arbitral tribunals or to their
national courts. Prior to the 1950s, international watercourses law was in the early
stage of growth,88 and in the absence of a legally binding international instrument for
a sustainable approach to the management and utilisation of transboundary water,
riparian states used to emphasise different theories and principles to justify their
claims. It is evident that national and international courts and tribunals have accepted
different theories and doctrines in deciding disputes over water.
The theoretical foundation of the principles of managing transboundary water have
drawn sustenance particularly from theories propounded by states and scholars from
time to time in defining and delimiting sovereign rights and claims. 89 The conflicts
that might arise between co-riparian states over the transboundary water correspond
quite closely to the degree and level of adherence to these principles. Different
86
Ibid. States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and 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. 1992 Rio Declaration on Environment and Development, Agenda Item 21, UN
Doc A/CONF.151/26 (14 June 1992) principle 2.
87
World Charter for Nature, GA Res 37/7, UN GAOR, 37th session, 48th plenary meeting, Agenda
Item 23, UN Doc A/37/51 (adopted 28 October 1982) annex.
88
Salman M A Salman, The World Bank Policy for Projects on International River (The World Bank,
2009) 10.
89
Hassan, above n 83, 31.
78
principles and theories reflecting varying state practice on the use of transboundary
water started to emerge late in the 19th century.90 There are also different theories and
doctrines of international watercourses laws governing transboundary water
resources.91 However, the principles discussed in the following show a shift from a
traditional extreme concept of sovereignty towards a more generous and reasonable
attitude.92
One of those theories is that of territorial sovereignty, which is also known as the
Harmon Doctrine. 93 The basis of this theory is that an upper-riparian state can
exercise full and unlimited sovereignty over its national territory without considering
the concerns of lower-riparian states, to withdraw or divert water from a shared
watercourse.94 The territorial sovereignty approach allows a state, as ‘master of its
own territory’ any degree of environmental change (including damage) within its
borders. It further claims that every state can make use of the waters of a
transboundary source flowing on its territory as it pleases, without considering the
socioeconomic impacts on other states and the duty to consult.95 According to this
approach, all measures are deemed suitable to its national interest irrespective of
their effects beyond its borders.96
The Harmon Doctrine argues that environmental pollution is a right of a territorial
sovereign. Even states have traditionally asserted the right to pollute at self-
90
Salman M A Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules:
Prospective on International Water Law’ (2007) 23(4) Water Resources Development 625, 627.
91
Malgosia Fitzmaurice and Gerhard Loibl, ‘Current State of Development in the Law of
International Watercourses’ in Surya P Subedi (ed), International Watercourses Law for the 21st
Century and the Case of the River Ganges Basin (Ashgate, 2005) 19, 21.
92
Hassan, above n 83, 31.
93
In 1895, in connection with a controversy with Mexico relating to the use of the waters of the Rio
Grande river, US Attorney General Judson Harmon argued that the rules, principles and precedents of
international law impose no liability or obligation upon the United States.
94
Ibrahim Kaya, Equitable Utilization: The Law of the Non-Navigational Uses of International
Watercourses (Ashgate, 2003) 34–37.
95
Dante Augusto Caponera, ‘Shared Waters in International Law’ in Gerald Henry Blake et al (eds),
Peaceful Management of Transboundary Resources (Graham and Trotman/Martinus Nijhoff
Publishers, 1995) 513.
96
P K Menon, ‘Water Resources Development of International Rivers with Special Reference to the
Developing World’ (1975) 9 International Lawyer 441, 445.
79
determined levels.97 However, if an upper-riparian state can invoke the doctrine of
territorial sovereignty to justify the use or diversion of transboundary water, the
lower-riparian can similarly invoke another doctrine98 to claim their share to meet
present and future needs of the country.99 The opinions and the principles entailed in
the Harmon Doctrine have been criticised and discredited, for obvious reasons, by
subsequent decisions of international tribunals and experts in this field. In the
contemporary world and under modern international law, it is outdated 100 and no
support has been forthcoming for this theory due to its unjust character. 101 The basic
principles of international law, contrary to this principle, prohibit riparian states from
causing harm to other states.102
Another theory that emerged is absolute territorial integrity. The absolute territorial
integrity approach is the opposite of the absolute territorial sovereignty approach and
can be described as the natural flow theory. It considers a transboundary water
resource as the common property of all its co-riparians and no state is allowed to
withdraw or divert waters at the expense of other states’ right to water. 103 According
to this approach, a lower-riparian claims the right to continued, uninterrupted natural
flow of the water from the territory of the upper-riparian.104 It establishes the right of
a riparian state to demand continuation of the natural flow from the upper-riparian or
riparians but imposes a duty on that state not to restrict such natural flow of waters to
other lower riparians. This approach has been raised by a lower-riparian country in
some water disputes between riparians. For example, Bangladesh, in a dispute with
India over the waters of the Ganges, asserted that during the dry season or months of
scarcity when the water flow is insufficient, the country was entitled to the natural
97
Edith Brown Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of
a New World Order’ (1993) 81 Georgetown Law Journal 675, 702.
98
Doctrine of territorial integrity.
99
Friedrich Joseph Berber, Rivers in International Law (Stevens & Sons, 1959) 25.
100
GOB, White Paper on the Ganges Water Dispute (Government of the People’s Republic of
Bangladesh, 1976) 18.
101
Lammers, above n 60, 96.
102
Salman, above n 90, 627.
103
J Barandat and A Kaplan, ‘International Water Law: Regulations for Cooperation and the
Discussion of the International Water Convention’ in Waltina Scheumann and Manuel Schiffler (eds),
Water in the Middle East: Potential for Conflicts and Prospects for Cooperation (Springer, 1998) 11.
104
Hassan, above n 83, 36.
80
flow of the Ganges in order to satisfy existing human and ecological needs that could
not be met in any other way.105 Water experts and riparian states have rejected this
theory due to its impractical nature and tendency to draw out disputes by preventing
co-riparian states from reaching consensus.106
The third theory is that of limited territorial sovereignty, which asserts that every
riparian has a right to use the transboundary waters but is under a corresponding duty
to ensure not to harm other riparians. The basis of this theory confirms that every coriparian is at liberty to use transboundary water resources flowing on its territory
without depriving the other states of rights and interests. The limited territorial
sovereignty approach would curtail absolute territorial sovereignty based on the
assertion that every riparian state has a right to have the transboundary water sources
considered a whole and is free to use the water on its territory, taking into account its
own interest and weighted in the balance against those of other co-riparian states.
Each state is precluded from making any alteration in the river system that would
cause material damage to another state’s right of enjoyment without that other state’s
consent. 107 The sovereign rights of each riparian are limited because of the
enjoyment of similar rights by other co-riparians.
The advantage of this theory is that it simultaneously recognises the rights of both
upper and lower-riparian states and guarantees the right of equitable and reasonable
utilisation of the resource by all co-riparians.108 This approach is well established in
general international law, where it dictates that a state cannot use its territory in a
way that can cause the detriment of another states’ territorial rights and interest. This
is a substantive approach that delimits sovereign rights of states in their own
105
UN GAOR, 31st sess, 20th mtg, UN Doc A/SPC/31/SR (21 August 1976).
106
Babu Ram Chauhan, Settlement of International Water Law Disputes in International Drainage
Basin (Schmidt Verlag, 1981) 137.
107
J L Brierly, The Law of Nations An Introduction to the International Law of Peace (Oxford
University Press, 6th ed, 1963) 231.
108
Muhammad Mizanur Rahaman, ‘The Potentials of International Water Laws Towards Achieving
Integrated Ganges Basin Management’ (Paper presented at the XII World Water Congress: Water for
Sustainable Development- Towards Innovative Solutions, New Delhi, India, 22–25 November 2005)
175.
81
territory.109 This approach is further complemented by the concept of a shared natural
resource that essentially provides theoretical justification in the formulation of rules
concerning the uses of the water of transboundary resources.
The shared natural resource approach is innovative and a bold departure from the
traditional sovereign rights. Water should be considered a special legal entity
articulating a positive duty of cooperation between the states sharing the
resources.110 The theory ensures balanced use of transboundary water for the mutual
benefit of all riparian states. 111 This approach does not necessarily call for a
surrender of sovereignty but merely for pooling so much of it as may be essential for
the development of the resources to obtain the maximum benefit. 112 The shared
natural resource approach implies a community of interests and signifies a positive
duty to cooperate in the utilisation of shared water. Water is undoubtedly an
important natural resource, therefore, one must determine how that resource could be
shared equitably for the benefit of mankind. The International Law Commission
(ILC) did not retain the shared natural resource approach in its draft articles but ICJ
in the Gabčíkovo v Nagymaros case113 returned to this approach and interestingly
linked it with the equitable and reasonable utilisation approach.114 The international
legal community and scholarly institutions encourage co-riparian states to implement
this theory.115
The equitable and reasonable utilisation approach explains that the state has a legal
right to receive an equitable and reasonable share of water from an international
109
Henry Philip Farnham, The Law of Waters and Water Rights: International, National, State,
Municipal and Individual, including Irrigation, Drainage and Municipal Water Supply (The Lawyers’
Co-operative Publishing Company, 1904).
110
Recommendation 91 of UN Water Conference, Mar del Plata 1977.
111
P Wilson, The International Law of Shared Water Resources, Training Manual on Environmental
Law (UNEP, 1996).
112
Menon, above n 96, 452.
113
Gabčíkovo v Nagymaros was associated with the use of the water of the river Danube in between
Hungary and Slovakia. Initially this case was referred to Hungary and Czechoslovakia. However,
Czechoslovakia was divided into two independent states as Czech Republic and Slovakia in 1993.
Finally, this case was related to Hungary and Slovakia. Gabčíkovo v Nagymaros Project (Hungary v
Slovakia) (Judgement) [1997] ICJ Rep.
114
Fitzmaurice and Loibl, above n 91, 32.
115
Albert E Utton and Ludwik A Teclaff, Water in a Developing World: The Management of a Critical
Response (Westview Press, 1978).
82
water resource for its socioeconomic sustainability. It means that the each riparian
state has rights equal in kind but does not mean that each of the riparians will receive
an identical share. 116 Within its territorial jurisdiction, the state is entitled to
optimally utilise the resources with due protection to the resource and
environment. 117 This approach gradually developed to meet the inadequacies and
discrepancies of competing theories; however, these approaches provide little
guidance in determining a globally accepted approach as there is no constant
acceptable approach.
The equitable utilisation approach pervades international and intrastate cooperation
for use and control of inland water. This approach has been used as early as 1927 in
the reconciliation of conflicts between federal states and among sovereign states. The
Constitutional Court of Germany declared that the interests of the states in question
must be weighed in an equitable manner against one another. 118 In deciding the
interstate river dispute in the United States (US) the court held that disputes between
the states are to be settled on the basis of equality of right.119 It does not mean that
there must be an equal division of water of an interstate stream among the states, but
it ensures that the principle of right and equity shall be applied, having regard to the
equal level on which all states stand. In a dispute over common water in the Indus
River, the Rau Commission concluded that if there is no agreement, the rights of the
several states must be determined by applying the rule of equitable apportionment,
each getting a fair share of the common water.120
The territorial approach implies the use of common water within a state’s territory is
a sovereign right and the absolute territorial integrity is favourable to the lowerriparian state against any upstream water utilisation that is likely to disturb the
natural flow. However, limited territorial sovereignty only allows limited rights of
each riparian. The shared natural resource and equitable utilisation approaches can
116
Hassan, above n 83, 56.
117
Berber, above n 99, 168.
118
Wurttemberg v Baden (1927). Annual Digest of Public International Law Cases (1927–28) 1931,
131.
119
Connecticut v Massachusetts (1931) 282 US Reports 670.
120
Asit K Biswas, ‘Indus Water Treaty: the Negotiating Process’ (1992) 17 Water International 201,
202.
83
initiate a useful discussion in any regional and international forum on managing
transboundary water and controlling inland water pollution.
The most basic of these rules are those relating to equitable and reasonable
utilisation, prevention of significant harm and notification and consultation regarding
planned measures. These rules equally apply to all forms of shared water, including
surface and groundwater. The most fundamental rule of the law of transboundary
watercourses is that of equitable and reasonable utilisation of shared resources. In
accordance with Articles 5121 and 6122 of the United Nations Convention on the Law
of the Non-navigational Uses of International Watercourses 1997 (UNWC),123 this
rule requires that states use and protect transboundary water in a manner that is
equitable and reasonable vice versa to other states. Another obligation of states
sharing transboundary water according to Article 7124 of UNWC is to prevent the
causing of significant harm to other states. The third fundamental obligation under
121
Article 5 ‘Equitable and reasonable utilization and participation’: 1) Watercourse States shall in
their respective territories utilize an international watercourse in an equitable and reasonable manner.
In particular, an international watercourse shall be used and developed by watercourse States with a
view to attaining optimal and sustainable utilization thereof and benefits there from, taking into
account the interests of the watercourse States concerned, consistent with adequate protection of the
watercourse. 2) Watercourse States shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Such participation includes both the
right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as
provided in the present Convention.
122
Article 6 ‘Factors relevant to equitable and reasonable utilization’: 1) Utilization of an international
watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking
into account all relevant factors and circumstances, including: (a) Geographic, hydro graphic,
hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic
needs of the watercourse States concerned; (c) The population dependent on the watercourse in each
watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on
other watercourse States; (e) Existing and potential uses of the watercourse; (f) Conservation,
protection, development and economy of use of the water resources of the watercourse and the costs
of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a
particular planned or existing use. 2) In the application of article 5 or paragraph 1 of this article,
watercourse States concerned shall, when the need arises, enter into consultations in a spirit of
cooperation. 3) The weight to be given to each factor is to be determined by its importance in
comparison with that of other relevant factors. In determining what is a reasonable and equitable use,
all relevant factors are to be considered together and a conclusion reached on the basis of the whole.
123
Discussed in Chapter 5 V Q.
124
Article 7 ‘Obligation not to cause significant harm’: 1) Watercourse States shall, in utilizing an
international watercourse in their territories, take all appropriate measures to prevent the causing of
significant harm to other watercourse States. 2) Where significant harm nevertheless is caused to
another watercourse State, the States whose use causes such harm shall, in the absence of agreement
to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in
consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to
discuss the question of compensation.
84
CIL relating to transboundary water is that a state planning any project that may
adversely affect other states must provide notice well in advance of those plans.125
Approximately 300 rivers, 100 lakes and a yet to be determined number of aquifers
are shared by two or more countries.126 Those inland water resources are facing acute
challenges because of the steady increase in population, industrialisation,
urbanisation and environmental degradation as well as hydrological variability. 127
The majority of the world’s water basin is not governed by an agreement
encompassing all the riparians. As a consequence, dispute over shared waters are on
the increase and now cover a wide array of issues that go beyond quantity and
quality of shared waters.128
In disputes over international waters, the negotiation process shows ups and downs,
including bitter conflict, but also a general forward momentum contributing to set of
some shared principles. There is no agreed international legal framework to govern
the use and development of international rivers by riparian countries. It is quite
unfortunate that the world community has not yet succeeded in agreeing on a
universally applicable treaty to regulate the uses and protection of shared water
resources. 129 Countries are struggling with the issues arising from sharing and
managing transboundary water. The much dominant late 18th century theories of
absolute and exclusive territorial sovereignty (the Harmon Doctrine) are substituted
by the theories of limited territorial sovereignty and integrity in the early 19th century.
More recently, community of interests and common management theories are
developed for the SD and optimal utilisation of shared water resources. However,
many countries have largely accepted some principles,130 which are embedded in the
Helsinki Rules formulated by the International Law Association (ILA) in 1966.
125
Articles 11–19 of the UN Convention 1997.
126
Salman M A Salman, ‘International Water Disputes: A New Breed of Claims, Claimants and
Settlement Institutions’ (2006) 31(1) Water International 2, 2.
127
Salman, above n 90, 638.
128
Salman, above n 126, 11.
129
Salman, above n 90, 638.
130
Principles are 1) prior consultation, 2) avoidance of significant injury, 3) equitable apportionment
of water, 4) non-discrimination and non-exclusion and 5) provision for settlement of disputes.
85
Control of inland water pollution could limit the sovereignty of states, which
includes rights to control the water within the territory. However, the predominance
of national controls has raised problems in relation to inland water pollution control
at a global level. Transboundary and cumulative impacts of inland water pollution
have pushed international communities to work together for common purposes of
inland water pollution control. The concept of an equitable utilisation approach
developed because of inadequacies and discrepancies of competing approaches,
namely, absolute sovereignty, territorial integrity, limited territorial sovereignty and
shared natural resources.131 There seems to be an acknowledgement that inland water
pollution is fundamentally a matter of national concern. This pollution arises from an
area that is under the sovereignty of a state.132
V OTHER CONSTRAINTS AFFECTING INLAND WATER POLLUTION CONTROL
In order to achieve SD and proper management of groundwater, clear understanding
of the groundwater system and regular monitoring of groundwater storage and
quality are important.133 Management of groundwater resources needs to be focused
on maintaining the water balance of withdrawals and recharge. Matching long-term
withdrawals of groundwater compared to recharge is the principal objective of
sustainable groundwater resource planning as it is directly related with the issues of
inland water pollution. Apart from the above issues, Bangladesh also has many
disadvantages that remain as obstacles and create problems in dealing with the
control of inland water pollution.134
More than 2 billion people are living in water-stressed regions in the world and
humanity is polluting, diverting and depleting the Earth’s finite water resources at a
131
Stephen M Schwebel, Third Report on the Law of the Non-navigational Uses of International
Watercourses,Agenda Item 5, UN Doc A/CN.4/348* (11 December 1981) para 43.
132
The term sovereignty is a complex and poorly defined concept, which has different meanings. For
example three different meaning of sovereignty are: 1. Sovereignty is a distinctive characteristic of
states as constituent units of the international legal system; 2. Sovereignty is freedom of action in
respect of all matters with regard to which a state is not under any legal obligation; and 3. Sovereignty
is the minimum amount of autonomy which a state must possess before it can be accorded the status
of a sovereign state. However, in general sovereignty can be defined as ‘supreme authorityindependent of any other earthly authority- it implies independence all round, within and without the
border of the country’, see Lassa Oppenheim, ‘International Law’ (Longman, 8th ed, 1955) 119.
133
Zahid and Ahmed, above n 18, 43.
134
Discussed in Chapter 1 VI.
86
dangerous and steadily increasing rate. 135 The burgeoning global population, the
increasing concentration of people in cities and increased per capita water use add a
dimension to the world’s inland water problems. Transboundary water is one of the
main sources of inland water and the ways in which humans use water have
prompted corresponding changes and development in the principles governing
transboundary water resources.136 Well over 200 rivers137 in the world are shared by
two or more countries, thus the transboundary resources cannot be protected and
conserved solely by countries acting alone. Last century has witnessed
unprecedented rises in population, consequently water demands for domestic,
industrial and agricultural purposes are also increasing rapidly.138 With such a water
crisis 139 facing many countries, managing water for domestic, agricultural and
industrial uses is an immense task. Countries sharing transboundary water have
developed basic rules governing the use of those resources to capitalise possible
maximum benefit.140 These basic rules become part of the CIL. Countries sharing
transboundary water may wish to enter into treaties applying and adjusting rules of
customary law to suit their specific situations and the watercourses they share.141
D Poverty
The simple reason for the tardiness in adopting measures for inland water pollution
control is that where people are struggling for their basic needs, they cannot act as
protectors of the environment. 142 Poverty is indirectly acting as a polluter and
135
Maude Barlow, Blue Covenant the Global Water Crisis and the Coming Battle for the Right to
Water (Black Inc, 2007) 1.
136
Stephen C McCaffrey, Law of International Watercourses (Oxford University Press, 2nd ed, 2007)
16.
137
Peter H Gleick (ed), Water in Crisis: A Guide to the World’s Fresh Water Resources (Oxford
University Press, 1993) 438.
138
Michael Acreman, ‘Principles of Water Management for People and the Environment’ in Alex di
Sherbinin and Victoria Dompka (eds) Water and Population Dynamics: Case Studies and Policy
Implications (Advancing Seience Serving Society Publications, 1998) 25, 26.
139
Crisis originated from its Greek roots Krisis, refers to: decision and not necessarily a disaster; to a
time of decisive actions; to a turning point that may make things worse or better. Crisis is like a ‘Wake
up’ call for decision and action.
140
Discussed in Ch 5 II A.
141
Ariel Dinar et al, Bridges Over Water Understanding Transboundary Water Conflict, Negotiation
and Cooperation (World Scientific Publishing, 2007) 65.
142
Hassan, above n 8, 173.
87
remains one of the main reasons of inland water pollution. Daily survival is a
principal concern for many people of Bangladesh where environmental awareness is
not widespread at all. With recent economic growth averaging over 5%, Bangladesh
has succeeded in reducing the incidence of poverty to 31%143 of its population of
nearly 150 million and shows promise in meeting several of its MDGs. However, a
considerable number of the people of Bangladesh are poor and illiterate. As a result,
their access to resources and information is enormously limited. The authoritative
manipulation of legal provisions by local elites and the serious lack of
implementation of legal provisions by government are major causes for continued
degradation of inland water resources.144 However, Bangladesh has done well in the
provision of safe drinking water, which now is available to 80% of the population.
Nevertheless, an impact of rapid urbanisation and industrialisation is deterioration of
ambient water quality, which is most noticeable in and around the capital city, where
many of the lakes and rivers are too polluted for any human use and biologically
dead during the dry season.
145
The poor are disproportionately affected by
insufficient access to water for domestic and livelihood uses.146 A United Nations
Development Programme (UNDP) report in 2006 acknowledged the scarcity of the
global water crisis is rooted in power, poverty and equality.147
E Incapacity
Different government authorities working in the water pollution sector are
coordinated poorly and sometimes compete against each other and are also
institutionally weak. This poor institutional structure is a leading factor in the
continuing inland water pollution problem. The legal and institutional capacities to
protect and develop inland water sources are often either lacking or weak and
143
Bangladesh Bureau of Statistics (BBS) and World Bank announced in a joint workshop in Dhaka
(2010).
144
A Atiq Rahman, Zahid H Chowdhury and Ahsan U Ahmed, ‘Environment and Security in
Bangladesh’ in Adil Najam (ed), Environment, Development and Human Security Perspectives from
South Asia (University Press of America, 2003) 103, 105.
145
United States Agency for International Development (USAID), ‘Bangladesh Environment Sector
Assessment and Strategic Analysis’ (Final Report: Attachment A, January 2010).
146
Philippe Cullet, Water Law, Poverty and Development Water Sector Reforms in India (Oxford
University Press, 2009) 11.
147
United Nations Development Programme, Human Development Report 2006-Beyond Scarcity:
Power, Poverty and the Global Water Crisis (Palgrave Macmillan, 2006) 2.
88
inadequate in many developing countries. 148 Institutional support and capacity
building are needed, particularly from a long-term perspective to protect inland water
pollution. The notion of capacity building has been defined by many authors both
inside and outside the water sector. There is a consensus that capacity building goes
beyond training and education and includes institutional reforms and building an
enabling environment in which developed capacities would be better exploited.149
Capacity building is a process by which individuals, organisations, institutions and
societies develop abilities (individually and collectively) to perform functions and
solve problems to achieve objectives.
Capacity building is a process whereby a community equips itself to undertake the
necessary functions of governance and service provision in a sustainable fashion.150
The process is commonly misconceived as merely the building of local skills and
abilities. Capacity building is an institutional or organisational development
recognising many diverse and competing actors in development where the role of an
engaged outsider is to support the capacity of local people to determine their own
values and priorities.151 It should be noted that very often the performances of the
water
sector
arrangements.
are
152
poor
because
of
inappropriate
and
rigid
institutional
Developing countries like Bangladesh are still not geared to educate
and train people who can successfully manage water resources in an integrated
manner under the rapidly changing social, economic, environmental and political
conditions.153 Many failures in water resource management are the result of lack of
148
Donald Kaniaru and Lal Kurukulasuriya, ‘Capacity Building in Environmental Law’ in Sun L and
Kurukulasuriya L (eds), UNEP’s New Way Forward: Environmental Law and Sustainable
Development (UNEP, 2001) 171, 172.
149
Kess Leendertse and Paul Taylor, ‘Capacity Building and Knowledge Sharing’ in R Quentin
Grafton and Karen Hussey (eds), Water Resources Planning and Management (Cambridge University
Press, 2011) 274, 275.
150
Len Abrams, ‘Capacity Building for Water Supply and Sanitation Development at Local Level’ (A
paper delivered at the 2nd UNDP Symposium on Water Sector Capacity Building in Delft Netherland)
(21 February 2013) < http://www.africanwater.org/capacity_building.htm>.
151
Deborah Eade, ‘Capacity Building: Who Builds Whose Capacity?’ (2007) 17(4–5) Development in
Practice 630, 632.
152
G J Alaerts, ‘Institutional Arrangements’ in Richard Helmer and Ivanildo Hespanhol (eds), Water
Pollution Control: A Guide to the Use of Water Quality Management Principles (E & FN Spon, 1997)
219, 240.
153
Asit K Biswas, ‘Capacity Building for Water Management: Some Personal Thoughts’ (1996) 12(4)
International Journal of Water Resource Development 399, 402.
89
trained staff and weak institutions.154 Technical solutions alone cannot ensure water
supply; it depends on the ability to pass on natural heritage to future generations and
feed a growing population.
Many national and local institutions responsible for water management are not
working efficiently or effectively because of the inability to formulate appropriate
policies and strategies. 155 Weak governmental institutions and inefficient staff
contribute significantly. Nowadays, the problems created by inefficient institutional
capacity building are aggravated by the rapidly emerging water scarcity and water
quality problems in many regions in the world. 156 The capacities to deal with the
water sector are poorly developed in Bangladesh. Developing countries are still not
geared to educate and train people who can successfully manage water resources in
an integrated manner under the rapidly changing social, economic, environmental
and political conditions. 157 Further, a great variety of challenges such as good
governance with regard to resource management, effects of urbanisation, the
increasing pollution and decreasing quality of resources, changes in demographic
patterns and, last but not least, effects of globalisation are involved to address
capacity building issues.158 All those challenges are working as obstacles to control
inland water from pollution.
Strengthening of institutions and development of human resources are the key areas
of essential capacity building. Strengthening of institutions at all levels to provide
more effective and efficient water resource development include the creation,
implementation and evaluation of favourable policy environment and appraising
water resources assessment (both quantity and quality) and needs of the specific
country.159 Development of human resources at all levels includes education, training
and the creation of conducive working conditions. Lack of institutional frameworks
154
Atef Hamdy, Mahmoud Abu-Zeid and C Lacirignola, ‘Institutional Capacity Building for Water
Resource Management’ (1998) 23(3) Water International 126,127.
155
Ibid.
156
Ibid 128.
157
Biswas, above n 153, 402.
158
Alexandra Pres, ‘Capacity Bulding: A Possible Approach to Improved Water Resources
Management’ (2008) 24(1) Water Resources Development 123,125.
159
Frank Hartvelt and Daniel A Okun, ‘Capacity Building for Water Resources Management’ (1991)
16 Water International 176,176.
90
and human resources for water resources management must be tackled with urgency
to meet the expanding and various needs of water.160
F Economic Incentives
For the management of water, an emphasis on the use of economic instruments and
incentives has been increased since the Rio Convention. 161 Economic instruments
have been used to encourage an increase in resource extraction and an intensification
of their use. Policy makers have turned their attention to the use of economic
incentives to reduce resource extraction and improve water resources condition.162
Unfortunately, there are no economic incentives for the people or for polluting
industries located in river banks to take preventive or precautionary measures to
prevent inland water pollution.
Water has economic value and should be considered an economic as well as social
good. Like any valuable commodity, water use has a cost either in terms of its
development or forgone opportunities. The cost of using or misusing water does not
disappear, but is paid either by the user or by the community at large or through a
depletion of the existing natural source. An incentive is a formal or informal
mechanism that may induce users of a common property resource to undertake
collectively beneficial but individually costly actions. 163 Ever-increasing water
consumption levels are expected to lead to large water deficits. Demands of piped
water appear to be rising inevitably due to persistent demographic growth, increasing
urbanisation or grants to agriculture or some strategic industries.164 In recent years,
economic-incentive instruments have captured the attention of environmental policy
makers because of the potential advantages they offer over traditional command-and-
160
Pres, above n 158, 125.
161
H Bjornlund and V Bjornlund, ‘New Wine in Old Bottles: A Brief History of the Use of Economic
Incentives in Natural Resource Management’ in C A Brebbia and V Popov (eds), Water Resources
Management VI (Sixth International Conference on Sustainable Water Resources Management) (WIT
Press, 2011) 573, 573.
162
Ibid 574.
163
Paul Seabright, ‘Managing Local Commons: Theoretical Issues in Incentive Design’ (1993) 7(4)
Journal of Economic Perspectives 113, 117.
164
Jihad C Elnaboulsi, ‘An Incentive Water Pricing Policy for Sustainable Water Use’ (2009) 42
Environmental Resource Economics 451,452.
91
control approaches.165 This thesis will argue for providing economic incentives as a
measure in order to change the inland water pollution situation.
G Regional Conflict
An analysis of conflicts related to natural resources, in particular, water resources,
shows that conflicts arise about the use, extraction, excavation of natural resources at
different locations (upstream/downstream), the allocation of water resources to
sectoral interest groups and competition over resources for different production
possibilities (agriculture versus fisheries in the same area).166 Discharge of effluents
into water resources, indiscriminate use of chemical fertilisers and pesticides and
dumping of waste in water are also sources of conflict. The intensity of conflict can
vary widely from occasional low level, low intensity to high level and high intensity.
At community level, the conflicts may be explained by competing demands of
(powerful) groups with privileged access to political power and economic resources.
At state level, the conflicts may be affected by state attributes, such as institutional
failure and poor governance.167
The issues identified behind this conflict are related to underlying social, political,
economic structures and institutional arrangements. Conflict over natural resources
can be aggravated by social exclusion, by tensions over religion and ethnicity or
failure to dispute resolution mechanisms. Conflict may be embedded both in social
and political structures, such as conflict between two groups who support (and are
supported by) two different political parties. The economic dimension of conflict
should
not
be
ignored.
Increased
poverty,
macro-economic
instability,
unemployment, inflation and increasing competition over natural resources can all
contribute to conflict. 168 The development and utilisation of the region’s (GBM)
water resources have never been sought in an integrated manner by the regional
165
Robert N Stavins, ‘Economic Incentives for Environmental Regulations’ (Discussion Paper No E97–02, Kennedy School of Government, Harvard University, June 1997) 3.
166
Irna van der Molen and Atiq Rahman, ‘Disputes over Water, Natural Resources and Human
Security in Bangladesh: Towards a Conflict Analysis Framework’ in Velma I Grover (ed), Water: A
Source of Conflict or Cooperation? (Science Publisher, 2007) 83, 87.
167
Ibid 91.
168
Ibid.
92
countries due to legacies of mistrust and lack of goodwill. 169 Considering water
resources, an integrated and holistic approach relates to the desperate need for the
region to develop. The abundance of shared water resources can serve as a principal
instrument of development for millions of people living in the region to achieve a
win-win scenario.170
Regional cooperation and partnership building is desirable to protect transboundary
water resources from pollution. The land, people and environment of Bangladesh has
thrived and been sustained on the waters supplied by the transboundary sources over
the centuries. The significant reductions of dry season flows of transboundary rivers
due to anthropogenic intervention in the upstream have created a very critical
situation in Bangladesh. 171 Political conflict between India and Bangladesh poses
obstacles to overcoming the problem.
As demand for inland water further increases, conflict over limited water resources
among different water user is likely to intensify. Conflict between riparian states and
upstream and downstream users within the country is frequently observed. The
various uses of transboundary water sources are creating technical and juridical
problems. The diverse uses of such waters by one co-riparian can have
transboundary consequences. The clash of jurisdiction over the moving waters,
accompanied by the urge for the protections of respective co-riparian states’ own
interests are creating various disputes on international river law. 172 In disputes over
international waters, the negotiation process shows ups and downs, including bitter
conflict but a general forward momentum contributing to a set of some shared
principles.173 However, there are no agreed international legal frameworks to govern
169
Zahir Uddin Ahmad, ‘Forgetting Political Boundaries in Identifying Water Development Potentials
in the Basin-wide Approach: The Ganges-Brahmaputra-Meghna Issues’ in Caroline M Figuėres,
Cecilia Tortajada and Johan Rockström (eds), Rethinking Water Management Innovative Approaches
to Contemporary Issues (EarthScan, 2003) 180, 181.
170
Ibid.
171
Tauhidul Anwar Khan, Transboundary Water Issues in South Asia (Bangladesh Environmental
Lawyers Association, 2007) 94.
172
Hassan, above n 83, 30.
173
Some of these principles are prior consultation, avoidance of significant injury, equitable
apportionment of water, non-discrimination and non-exclusion and provision for settlement of
disputes.
93
the use and development of international rivers by riparian countries. 174 Nevertheless,
some principles are embedded in the Helsinki Rules formulated by the ILA in 1966
and most recently in the Berlin Rules in 2004.175
VI CONCLUDING REMARKS
This chapter has identified and classified relevant inland water pollution problems
and issues. It reveals that the problems and issues faced in inland water pollution
control are multi-faced and complex in some instances. The absence of scientific
data to identify the scattered sources and causal factors of damage creates problems
in regards to controlling and regulating at national, regional and global levels. From
a legal conceptual point of view, no guidance and frameworks has been provided to
control or avoid significant damages. In addition, Bangladesh lacks the capacity of
dealing with the problems of inland water pollution.176 In order to meet the growing
challenges of socioeconomic demands, control measures must be devised from an
economic point of view. However, competing interests177 are creating difficulties in
cooperation for the common purpose of protecting inland water pollution.
Scientific, economic and legal problems need confronting in order to control inland
water pollution. Inland water pollution has initially a local or regional character, thus
core responsibility belongs to the state and should also be sensitive to sovereignty
concerns. Comprehensive, cooperative and innovative approaches may play a vital
role in addressing scientific and economic needs to protect inland water from
pollution. As a response to this problem, international sustainable management
principles have been considered indispensable and a step forward to categorise
appropriate interventions to cope with the problems. Moreover, at a regional level,
the importance of managing transboundary water is immense in a country like
Bangladesh where 80% of the surfacewater sources are shared with another country.
In this context, within the legal regime development process, necessary theories and
doctrines are discussed with a view to understanding legal duties and obligations.
174
Mark W Rosegrant, ‘Water Resources in the Twenty – First Century: Challenges and Implications
for Action’ (Discussion Paper No 20, International Food Policy Research Institute, Washington,
March 1997) 22.
175
Discussed in Chapter 5 VI 13.
176
Lammers, above n 60, 3.
177
Legal, social and economic.
94
CHAPTER 4: INTERNATIONAL MANAGEMENT PRINCIPLES FOR
PREVENTING INLAND WATER POLLUTION
I
INTRODUCTION
Inland water serves a variety of purposes that are essential for human life and
development of societies.1 However, the use of inland water resources by one actor
inevitably affects the opportunities of other actors, leading to collective action
problems. 2 Inland water pollution is an issue and growing water scarcity is a
constraint to SD. 3 Together with the impact of climate change, seasonal water
shortage has an effect on economic growth and progress. A number of management
principles have been developed over time that advocate various strategies and
techniques to control such pollution. To overcome water sector challenges, it is
important to understand the underlying principles of sound water management
policies, supported by innovative technological solutions, especially in the face of
water scarcity and pollution.
This chapter provides an outline of applicable international management principles
and their role in reducing and controlling inland water pollution. The concept of SD
for inland water is argued as a prelude to a discussion of specific principles enduring
in water management. The issue of IWRM is discussed, as is scope, adequacy,
limitations and the role of AWM. This chapter describes how international
management principles can be used as benchmarks for assessing the adequacy of
existing legal regimes of inland water pollution. It is concluded that, despite some
shortcomings, international management principles have contributed significantly to
the ongoing development of an international legal regime of inland water pollution
control.
II PRINCIPLES OF MANAGING INLAND WATER
The emergence of various international principles and policies related to the
management of water has been declared at many international conferences since the
1
Discussed in Chapter 2.
2
Susanne Schmeier, ‘Governing International Watercourses- Perspectives from Different Disciplines:
A Comprehensive Literature Review’ (Working Papers No 53, Hertie School of Governance,
Germany, August 2010) 4.
3
Discussed in Chapter 3 III.
95
1970s, 4 explicitly included in numerous international instruments and implicitly
derived from the core treaties of the UN.5 In addition, new scientific discoveries,
different technological innovations and social changes emphasise strategies and
programmes for the sustainable management of natural resources, especially water.
For example, inland water needs to be managed in an integrated and sustainable way
in order to ensure the application of certain principles such as IWRM, AWM,
polluter-pays and precautionary principles. These management principles are
internationally recognised and provide a suitable basis for the sound management of
inland water pollution.
A The Concept of Sustainable Development (SD)
The word ‘sustainable’ means able to keep going continuously and ‘development’
means the action or process of developing or being developed.6 In relation to natural
resources, SD means the use or transformation of the resources of the environment is
able to be continued.7 The satisfaction of human needs and aspirations is the major
objectives of any development. SD requires meeting the basic needs and extending
to all the opportunity to satisfy the aspirations of better life. 8 The term SD was first
introduced in a report9 by the International Union for the Conservation of Nature and
Natural Resources (IUCN) in 1980. An attempt was made to formalise the meaning
of SD, which stated that any modifications to the environment should indeed secure
the survival and wellbeing of all people. However, the Our Common
Future/Bruntland report 10 laid the groundwork to bring the concept into the
international community, with institutions such as the UN and the World Bank, and
4
Discussed in Chapter 5 III.
5
Nobonita Chowdhury et al, ‘The Human Right to Water and the Responsibilities of Businesses: An
Analysis of Legal Issues’ (A project paper, School of Oriental and African Studies, 31 January 2011)
3.
6
Oxford Advanced Learner’s Dictionary, International Students’ Edition.
7
Douglas Edgar Fisher, The Law of Governance of Water Resources the Challenge of Sustainability
(Edward Elgar Publishing, 2009) 23.
8
Report of the World Commission on Environment and Development: Our Common Future, UN Doc
A/42/427 (1987) annex.
9
IUCN, World Conservation Strategy, Living Resource Conservation for Sustainable Development
(IUCN-UNEP-WWF, 1980) 20.
10
Report of the World Commission on Environment and Development, above n 8, annex.
96
to establish a Commission on SD.11 An often quoted definition from the report is that
development should meet the needs of the present without compromising the ability
of future generations to meet their own needs.12 More specifically, it is a principle to
integrate the social, economic and ecological aspects of the use and development of
natural resources for present and future generations in making decisions about these
resources and undertaking operations in relation to them.13 Indeed, the challenge for
SD is to ensure how best to conserve natural resources for future generations.14
In recent years, the concept of SD has expanded considerably. Increasing numbers of
international treaties address global and regional SD goals. 15 Also, the decisions of
international courts and tribunals are beginning to recognise SD goals and
instruments explicitly. 16 The concept of SD is increasingly being invoked before
national courts and tribunals around the world.17 The usefulness and effectiveness of
the SD principles has been widely accepted by the international community and
incorporated in different international legal and policy instruments like the Rio
Declaration 18 and the International Conference on Water and the Environment
(ICWE), Dublin (1992). The Rio Declaration is the blueprint for SD. Chapter 18 of
Agenda 2119 established new and equitable global partnership through the creation of
11
The UN Commission on Sustainable Development (CSD) was established in December 1992 by
General Assembly resolution A/RES/47/191.
12
Report of the World Commission on Environment and Development, above n 8, annex.
13
Fisher, above n 7, 29.
14
Thomas Wälde, ‘Natural Resources and Sustainable Development’ in N Schrijver and B Weiss
(eds), International Law and Sustainable Development Principles and Practice (Martinus Nijhoff
Publishers, 2004) 119, 126.
15
United Nations Framework Convention on Climate Change (9 May 1992) 31 ILM 849, arts 3, 4;
United Nations Convention on Biological Diversity (5 June 1992) 31 ILM 822, arts 8, 10; Convention
to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa (17 June 1994) 33 ILM 1328, arts 4, 5.
16
Case Concerning the Gabčíkovo-Nagymaros (Hungary/Slovakia) (1997), ICJ Rep. 7. Advisory
Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory
Opinion, [1996] ICJ Rep. 226 at 438 and Certain Phosphate Lands in Nauru (Nauru/Australia) (1993),
ICJ Rep. 322. See also United States – Import Prohibition of Certain Shrimp and Shrimp Products, 20
September, 1999, WTO Doc. WT/DS58/AB/R (Appellate Body Report).
17
Bulankulama v The Secretary, Ministry of Industrial Development (2000) Vol 7 (1) (Sri Lankan
Supreme Court); Shehla Zia and others v.WAPDA, Case No 15-K of 1992 (Pakistan Supreme Court).
18
Agenda 21 was adopted as part of the 1992 Rio Declaration on Environment and Development,
Agenda Item 21, UN Doc A/CONF.151/26 (14 June 1992).
19
Chapter 18 of Agenda 21 was for the ‘Protection of The Quality and Supply of Freshwater
Resources: Application of Integrated Approaches to the Development, Management and Use of Water
97
new levels of cooperation between the states, key sectors of societies and people.
Agenda 21 refers to the widespread scarcity, gradual destruction and increased
pollution of freshwater reserves in many parts of the world. 20 It also mentions
freshwater as a finite and vulnerable natural resource on which all social and
economic activities are highly dependent. Basically, it recognises some major
problems 21 concerning freshwater and emphasises the holistic management of
freshwater as a finite and vulnerable resource and the integration of sectoral water
plans and programmes within the framework of national economic and social
policy. 22 The necessity of applying as an integrated approach to water resources
management and the need for strategies of environmentally sound management of
inland water, including improvement of water quality, was recognised at the Rio
Conference23 and was also addressed at the 2nd WWF.24
B The Concept of Integrated Water Resource Management (IWRM)
Water is essentially a unitary resource and the division of water resources into
surfacewater and groundwater are different manifestations of the same resource base.
IWRM tries to look at water from a systematic perspective and is more concerned
with the sustainable management of water. Water legislation outlines some principles
and priorities aimed to guide water-related decisions. These principles may include
numerous socioeconomic aspects such as sustainable management of water resources,
promoting economic development and equitable distribution of water among all the
potential stakeholders. IWRM express the idea that water resources should be
managed in a holistic way, coordinating and integrating all aspects and functions of
water extraction, control and water-related service delivery as to bring sustainable
Resources.’ The following programme areas are proposed for the freshwater sector: 1) Integrated
water resources development and management, 2) Water resources assessment, 3) Protection of water
resources, water quality and aquatic ecosystems, 4) Drinking-water supply and sanitation, 5) Water
and sustainable urban development, 6) Water for sustainable food production and rural development
and 7) Impacts of climate change on water resources.
20
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc
A/CONF.151/26 (14 June 1992) para 18.3.
21
1) Scarcity of available water and renewable supplies, 2) unequal distribution of supplies, 3)
problems of water quality and health and 4) disastrous effects of construction of dams and reservoirs.
22
Agenda 21, above n 20, para 18.6.
23
Ibid 18.38.
24
2nd World Water Forum, Hague, March 2000.
98
and equitable benefit to all those dependent on the resource. 25 IWRM has been
defined as a comprehensive approach to water resources management that views
water as a single resource with competing uses and is interlinked with the ecological,
social and economic systems. 26 The concept of IWRM planning is recognised,
institutionalised and incorporated in various international conventions and treaties,
regional agreements and national laws and policies.27
The first coordinated approach to IWRM was evolved at the UN Conference on
Water at Mar del Plata held in Argentina in 1977. The conference considered water
management on a holistic and comprehensive basis. The conference approved a Mar
del Plata action plan with a set of recommendations covering all essential
components of water management. Further, the conference approved 12 resolutions
on assessment of water use and efficiency, environment and pollution control,
planning and management and regional and international cooperation.
Protection of the environment and safeguarding of health through the integrated
management of water resources was one of the principles of the Global Consultation
on Safe Water and Sanitation conference held in New Delhi in 1990. Four guiding
principles28 were formulated in relation to IWRM in the ICWE organised in Dublin,
Ireland in 1992. Agenda 21 emerged from the Rio Conference (also known as the
Earth Summit) in 1992, with Chapter 18 dealing with water issues. Seven main
programme areas were proposed for the inland water sector, including integrated
water resources development and management. IWRM is increasingly accepted as
one of the principles that has emerged as a significant concept since the Earth
Summit. The conference addressed the IWRM concept ,stating that:29
The holistic management of freshwater as a finite and vulnerable resource and the integration
of sectoral water plans and programs within the framework of national economic and social
25
European Commission, ‘Towards Sustainable Water Resources Management: A Strategic Approach’
Brussels, Belgium’ (1998)
<http://europa.eu.int/comm/development/body/publications/water/en/frontpage_en.htm>.
26
‘Policy for Integrated Water Resources Management’ (Policy, African Development Bank &
African Development Fund, April 2000) 22.
27
Discussed in Chapter 5 III H.
28
See Chapter 1II
29
Agenda 21, above n 20, Chapter 18.
99
policy, are of paramount importance … IWRM is based on the perception of water as an
integral part of the ecosystem, a natural resource and social and economic good.
IWRM has more recently been given prominence, by the Global Water Partnership
(GWP).30 According to the GWP technical committee, IWRM aims to promote the
coordinated development and management of water, land and related resources by
maximising equitable economic and social welfare without compromising the
sustainability of vital ecosystems.31
The World Water Council (WWC) organised the 2nd WWF in the Hague, the
Netherlands, in 2000, emphasising that a holistic, systematic approach relying on
IWRM must replace the fragmentation in managing water for a water secure world.
The International Conference on Freshwater held in Bonn, Germany, in 2001 was
focused on the practical implementation of water policies and recognised that there
was a gap between policy and practice. The conference identified challenges and
formulated action plans to implement the policy and emphasised IWRM as a most
capable way to achieve this. The conference that laid IWRM at the top of the
international agenda was the World Summit on SD (WSSD) held in Johannesburg,
South Africa, in 2002. IWRM was included in the Johannesburg Plan as one of the
important components of SD. The plan provides precise targets and guidelines for
implementing IWRM all over the world. One of the targets was to develop and
implement an IWRM and water efficiency plan for all major river basins of the
world by 2005. The UN World Water Assessment Programme issued the First World
Water Development Report in 2003 affirming that IWRM was being implemented by
a UN system.
In line with the above approach, the ADB defines IWRM as a process to improve the
planning, conservation, development and management of water, forest, land and
30
The Global Water Partnership (GWP) is based on government agencies, public institutions, private
companies, professional organizations and multilateral development agencies committed to the RioDublin principles. GWP was founded in 1996 to foster Integrated Water Resource Management
(IWRM) through collaboration among the World Bank, the United Nations Development Programme
and the Swedish International Development Agency (SIDA). The vision of this organization is a water
secure world with a mission is to support the sustainable development and management of water
resources at all levels.
31
Global Water Partnership, ‘Integrated Water Resource Management’ (Technical Advisory
Committee
Background
Papers
No
4,
Stockholm,
2000)
22
<http://www.gwp.org/Global/ToolBox/Publications/Background%20papers/04%20Integrated%20Wat
er%20Resources%20Management%20(2000)%20English.pdf>.
100
aquatic resources in the river basin context, to maximise economic benefits and
social welfare in an equitable manner without compromising the sustainability of
vital environmental systems. 32 IWRM is an integrated system rather than one of
development, protection or conservation. It is integrated not only in the sense of an
integrated set of processes but also as an integrated set of outcomes.33 The concept is
relevant at all levels of governance—international, regional, national and local—and
is an initiative to manage water in an integrated way. 34 This integration always
requires a few matters 35 to be taken into account, including the inter-sectoral
management of water resources through proper coordination between different
relevant departments and agencies.36
IWRM is also consistently working for the strengthening of formal administrative
water rights systems and implementing of the guiding principles like user-pays and
polluter-pays.37 An effective IWRM is an integrated governance system that brings
together the ecological, social and economic perspectives of the use and
development of water resources.38 IWRM encompasses the harmonised planning and
management of water and other environmental resources for their equitable, efficient
and sustainable use.39 IWRM follow some strategies40 to ensure effective and better
outcome, and the implementation programmes should:41
32
Asian Development Bank, ‘Water for All: The Water Policy of the Asian Development Bank’ (2001)
17 < http://www.adb.org/sites/default/files/pub/2003/water-policy.pdf>.
33
Fisher, above n 7, 323.
34
Elli Louka, International Environmental Law Fairness, Effectiveness, and World Order (Cambridge
University Press, 2006) 182.
35
The different characteristics of water, the interest of different users, the participation of stakeholders
in the decision making process and the management of water pollution.
36
Hubert Savenjie and Pieter var der Zaag, ‘Water as an Economic Good and Demand Management:
Paradigms with Pitfalls’ (2002) 27(1) Water International 98, 98.
37
Barbara Van Koppen et al, ‘Community-Based Water Law and Water Resource Management
Reform in Developing Countries: Rationale, Contents and Key Messages’ (2007) 2
<http://www.iwmi.cgiar.org/Publications/CABI_Publications/CA_CABI_Series/Community_Law/pro
tected/Ch%2001.pdf>.
38
Fisher, above n 7, 324.
39
Ian R Calder, The Blue Revolution Land Use and Integrated Water Resources Management
(Earthscan Publications, 1999) 151.
40
Strategies are: 1) Equitable access to water resources for both national and trans-national
dependents, 2) Encourage efficient usage of water between the agricultural, industrial and urban
supply sectors by following the principles of demand management and appropriate pricing policies, 3)
In the short term, the prevention of further environmental degradation and in the longer term, the
101

recognise the linkages between water resource development and the impacts
on the environment and socioeconomic development;

define the management objectives, delivery mechanisms that enable these
objectives to be achieved and a monitoring schedule that evaluates
programme performance;

ensure that mechanisms and policies are established that enable long-term
support to recover water and environmental degradation.
The focus on water resources management has been taken up in the context of the
notion of IWRM. The concept has been linked to attempts to remedy identified
shortcomings of existing water sector practices. IWRM particularly advocates the
need for a comprehensive view of water that avoids a sector-by-sector approach.42
IWRM promotes basin-wide water planning, seeks to move beyond the consideration
of water in isolation from environment and economic factors and also promotes
coordinated management and development of water resources.43 It is not a simple
attempt to take a comprehensive view of water; it requires comprehensive rethink of
water management. IWRM focuses on the development of participatory planning
and implementation process,44 calls for the decentralisation of decision making to
deliver appropriate benefits to users and also emphasises the management of water
resources within the context of a limited supply of water to ensure efficiency and
equity without depleting the resource.45 The international community has embraced
IWRM as the standards for moving forward in the water sector.46 The concept has
been used as the basis for interventions in the water sector in various parts of the
restoration of degraded resources and 4) Decentralise the development of sound resource management
and collective responsibilities for resources.
41
Calder, above n 39, 152.
42
Henry David Thoreau, ‘Water is the Earth’s Eye, Looking Into Which the Beholder Measures the
Depth of His Own Nature’ (World Water Development Report No 2, United Nations Scientific and
Cultural Organisations, 2006) 13.
43
Ibid.
44
This is meant to offer water users more of a say in decision making process.
45
United Nations Development Programme, Human Development Report 2006- Beyond Scarcity:
Power, Poverty and the Global Water Crisis (Palgrave Macmillan, 2006) 153.
46
Plan of Implementation (POI) of the World Summit on Sustainable Development, Johannesburg,
South Africa, 26th August to 4th September 2002, para 25.
102
world. However, the success of IWRM seems to be related to the growth and
maturity of the economic strength of a country.47
IWRM is the coordinated development and management of water and related
resources to achieve maximum socioeconomic benefits in an equitable and
reasonable manner without compromising the sustainability of vital ecosystems. 48
IWRM planning emphasises the need for collective action across the natural resource
and economic development sectors.
49
It also requires integrated institutional
management planning with sufficient technological and financial support under a
uniform regulatory framework incorporating fundamental principles of international
watercourses law. 50 IWRM planning is considered a very important basis for a
sustainable approach to water resources management and one that leads to water
security and environmental benefits. International water and environment-related
Non-Government Organisations (NGOs) are always advocating the benefits of
IWRM planning and encourage water-stressed countries to implement IWRM in
managing their water and related resources.51
The above discussions stated that IWRM includes a number of approaches.52 These
approaches take into account the interdependence among economic sectors,
appropriate policies, strategies and putting in place the institutional framework
through which the policies, strategies and legislation can be implemented. Currently,
water management is in a transition phase. There is a need for a radical change, for a
47
T Shah and B van Koppen, ‘Is India Ripe for Integrated Water Resources Management? Fitting
Water Policy to National Development Context’ (2006) 41(31) Economic and Political Weekly 3413,
3420.
48
Water Innovation Centre, Ecosystem Management in Trans-boundary River Basins: Opportunities
and Challenges (2005) <http://www.waterinnovationhub.org/research/c governance/ecosystem.asp> .
49
Kent W Thornton et al, ‘Moving Toward Sustainable Water Resources Management: A Framework
and Guidelines for Implementation’ (Synthesis Report, No 00-OSM 6A, Water Environment Research
Foundation, 2006) 3.
50
Aaron T Wolf and Joshua T Newton, ‘The Danube River Basin: Joint Responsibility for River Basin
Management’ in Anton Earle, Anders Jägerskog and Joakim Őjendal (eds), Transboundary Water
Management Principles and Practice (Earthscan, 2010) 59.
51
Elli Louka, Water Law and Policy: Governance Without Frontiers (Oxford University Press, 2008)
24.
52
For example: Integration of water sources (both ground and surfacewater), linkage of social and
economic development with water, stake holder participation in decision making, integration of water
resources planning and management into the framework of national planning process, recognition of
water as a social, ecological and economic good, also prevention and reduction of pollutant
discharges.
103
paradigm shift in water management. SD and the implementation of management
regimes undergo a transition towards more AWM.
C The Concept of Adaptive Water Management (AWM)
AWM is an ongoing, iterative approach that seeks to learn by doing. 53 AWM is
needed as a systematic process for improving management policies and practices by
learning from the outcomes of implemented management strategies. 54 The key
elements of AWM include the development and adoption of a provisional legal,
policy and institutional framework and assessment and monitoring of the collected
information periodically to determine the effectiveness of the laws and institutions.55
It is a systematic approach to learning under conditions of high uncertainty. In its
broadest sense, adaptive management is a process of learning from experience.56 It
recognises that knowledge about environmental dynamics, impacts of proposed
activities and future demands will never be complete and only be understood through
experience, including experimentation.
Adaptive management can be defined as a systematic process for improving
management policies and practices by learning from the outcomes of implemented
management strategies.57 The process involves learning from implementation. It is a
roughly circular process (see Figure 4.1).
53
Holly Doremus, ‘Adaptive Management, the Endangered Species Act, and the Institutional
Challenges of ‘New Age’ Environmental Protection’ (2001) 41 Washington Law Journal 50, 52.
54
Claudia Pahl-Wostl, ‘Requirements for Adaptive Water Management’ in Claudia Pahl-Wostl, Pavel
Kabat and Jörn Möltgen (eds), Adaptive and Integrated Water Management Coping with Complexity
and Uncertainty (Springer, 2008)1, 3.
55
Carl Bruch, ‘Adaptive Water Management: Strengthening Laws and Institutions to Cope with
Uncertainty in Asit K Biswas, Cecilia Tortajada and Rafael Izquierdo (eds) Water Management in
2020 and Beyond (Springer, 2009) 89, 91.
56
Catherine Allan, ‘Can Adaptive Management Help us Embrace the Murray-Darling Basin’s Wicked
Problems?’’ in Claudia Pahl-Wostl, Pavel Kabat and Jörn Möltgen (eds), Adaptive and Integrated
Water Management Coping with Complexity and Uncertainty (Springer, 2008) 61, 65.
57
Claudia Pahl-Wostl et al, ‘Managing Change Toward Adaptive Water Management Through Social
Learning’ (2007) 12(2) Ecology and Society 1, 4.
104
Figure 4.1: Simple Visual Conceptualisation of Adaptive Management58
AWM can be applied in different contexts to improve long-term management of
water quality and quantity, as well as integrated management of a range of water
resources. It may apply to the legal framework, with periodic assessment and
revisions of laws and regulations governing water resource. Alternatively, it may
apply within the legal and regulatory framework, such as issuing licenses, granting
permits and management plans. 59 In every way, this process can help to control
inland water pollution and improve the quality of water.
From the above discussion, it seems apparent that there are some internationally
recognised management principles that work well for managing inland water.
However, some other principles also are in place for controlling inland water
pollution. The significance of these principles such as precautionary and polluterpays are very effective and widely accepted in order to protect inland water from
pollution. By applying these principles, it assumes that a few or at least fewer
harmful substances would be introduced into the inland water.
58
Catherine
Allan,
‘Adaptive
Management
<http://www.csu.edu.au/faculty/science/ses/>.
59
Bruch, above n 55, 93.
105
of
Natural
Resources’
(2007)
D The Precautionary Principle
The concept of the precautionary principle originated from German national law60
under the name Vorsorgenprinzip.
61
The principle has experienced great
development since its transition from German environment policy to international
instrument dealing with marine environmental pollution. 62 In 1987, the Second
International Conference on the Protection of the North Sea formally adopted the
principle in an international setting for the first time. 63 In 1990, the Bergen
Ministerial Declaration on SD (Bergen Declaration)64 agreed:
In order to achieve sustainable development, policies must be based on the precautionary
principles. Environmental measures must anticipate, prevent and attack the causes of
environmental degradation. Where there are threats of serious or irreversible damage, lack of
full scientific certainty should not be as a reason for postponing measures to prevent
environmental degradation.
Precaution is a response to uncertainty that is now an established principle of water
governance, prominent in law, policy and management instruments at international,
regional and domestic level.65 The precautionary principle has become intrinsic to
international environmental policy.66 The precautionary principle was adopted at the
60
James Cameron and Juli Abouchar, ‘The Status of the Precautionary Principle in International Law’
in David Freestone and Ellen Hey (eds), The Precautionary Principles and International Law: The
Challenge of Implementation (Kluwer Law International, 1996) 29, 31.
61
The Vorsorgenprinzip includes the idea of Gefahrenvorsorge or ‘precaution from danger’ which
indicates ‘Environmental policy is not fully accomplished by warding off imminent hazards and the
elimination of damage which has occurred. Precautionary environmental policy requires further that
natural resources are protected and demands on them made with care.’
62
Jacqueline Peel, ‘Interpretation and Application of the Precautionary Principle: Australia’s
Contribution’ (2009) 18(1) Review of European Community and International Environmental Law 11,
12.
63
James Cameron and Juli Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law
and Policy for the Protection of Global Environment’ (1991) 14(1) Boston College International and
Comparative Law Review 4–5.
64
The ministers from the 34 member states of the United Nations Economic Commission for Europe
(ECE) together with the Commissioner for Environment in European Community.
65
The
Precautionary
Principle
Project
<http://www.pprinciple.net/the_precautionary_principle.html>.
66
(27
September
2012)
David Freestone and Ellen Hey, ‘Origin and development of Precautionary principle’ in David
Freestone and Ellen Hey (eds), The Precautionary Principles and International Law: The Challenge
of Implementation (Kluwer Law International, 1996) 3, 3.
106
Rio Conference. 67 The Rio Declaration is the most prominent recognition of the
precautionary principle. Principle 15 of the declaration provides that:
In order to protect the environment, the precautionary approach shall be widely applied by
states according to their capabilities. Where there are threats of serious or irreversible
damage, lack of scientific certainty shall not be used as a reason for postponing cost effective
measures to prevent environmental degradation. 68
This precautionary approach states that uncertainty is not a reason for not protecting
natural resources. Moreover, the essence of the precautionary concept is that once a
risk has been identified, the lack of scientific proof of cause and effect shall not be
used as a reason for not taking action to protect the environment.69 The precautionary
principle means moving forward with decisions despite uncertainty.70 In the case of
inland water, the resource in many places has been degraded because uncertainty
over physical properties caused delays in regulatory action. The idea is precaution
leads to protecting against possible degradation. The precautionary principle melds
the idea of precaution with comprehensive and specific approaches by science,
technology and economics.71
The precautionary principle is a way of addressing future issues in the management
and protection of inland water. In this way, the principle goes beyond the aim of a
conventional policy, which typically seeks to prevent damage to the environment
once the risk is known and proven. 72 The difficulty is to differentiate between
prevention and precaution. The precaution will apply when the risk is high and
threatening to the environment, 73 while prevention implies that environmental
degradation has occurred and that preventive action will be taken to protect further
67
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc
A/CONF.151/26 (14 June 1992).
68
United Nations Convention on Biological Diversity, above n 15, 874.
69
Freestone and Hey, above n 66, 13.
70
Kyoko Matsumoto, ‘Transboundary Groundwater and International Law: Past Practices and Current
Implications’ (In partial fulfilment of the requirements for the degree of MSC a research paper,
Oregon State University, 2002) 34.
71
Ibid 35.
72
Daud Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution, Towards
Effective International Cooperation (Ashgate, 2006) 59.
73
Alexandre Kiss, ‘The Rights and Interests of Future Generations and the Precautionary Principle’ in
David Freestone and Ellen Hey (eds), The Precautionary Principles and International Law: The
Challenge of Implementation (Kluwer Law International, 1996) 19, 27.
107
degradation. The precautionary approach places emphasis on a duty of states to take
cost-effective action in order to prevent environmental degradation, even in the
absence of full scientific evidence. 74 The precautionary principle has assumed an
important role in reducing the frequency of incidents,75 but beyond the industrialised
world, there is not any clear evidence of its consolidation as a principle of
international water law.76 Inland water resources are facing serious degradation. Thus,
the implementation of the precautionary principle provides the opportunity for acting
positively to minimise the degradation of inland water sources.
The precautionary principle as a management tool has received particular legislative,
judicial and scholarly attention both at the international and domestic level, due to its
challenges to traditional regulatory thinking. 77 It indicates a different paradigm to
resolve the gap or tension involved in translating scientific knowledge to policy or
decision making. 78 Nevertheless, it does not represent a decrease of the role of
scientific research; rather, it requires an improvement in scientific understanding in
order to provide the best available knowledge.
E The Polluter-pays Principle
The polluter-pays principle more often applies in industrial outfalls and municipal
sewers, charging for discharging waste in water bodies.79 This principle has welltested regulatory and economic instruments for the prevention and abatement of
water pollution from point sources. The more detailed implication of water pollution
charges is that, for point sources of industrial and sewage effluent discharges to
watercourses, a charge should be imposed relating to the quantity and nature of
pollutants contained in each particular discharge. In principle, this charge will reflect
74
Dante A Caponera, Principles of Water Law and Administration National and International (Taylor
& Francis, 2nd ed, 2007) 229.
75
Hassan, above n 72, 68.
76
Caponera, above n 74, 229.
77
Alex Gardener, Richard Bartlett and Janice Gray, Water Resources Law (LexisNexis Butterworths,
2004) 49.
78
D Santillo et al, ‘The Precautionary Principle: Protecting Against Failures of Scientific Method and
Risk Assessment’ (1998) 36(12) Marine Pollution Bulletin 939, 941.
79
Stefano Burchi, ‘Water Laws for Water Security in the Twenty-first Century’ in Julie Trottier and
Paul Slack (eds), Managing Water Resources Past and Present (Oxford University Press, 2004) 117,
121.
108
the value to society of improved water quality and this valuation could be formulated
so as to reflect, for each area, the amount to be paid by each discharger.80
Everyone has rights and duties towards the environment. This combination of rights
and duties is neatly encapsulated in the first principle of the Stockholm Declaration
(1972), which commenced:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being and he bears a solemn
responsibility to protect and improve the environment for present and future generations. 81
At its broadest, the duty has been formulated as the imperative of realising SD. This
imperative extends to all persons in so far as they are made subject to a duty to
reduce and eliminate unsustainable patterns of production and consumption and
extends to states, among other things, in the obligation to enact effective
environmental legislation. 82 The ‘effectiveness’ of environmental legislation begs
many fundamental questions, but the gulf between the imperative of SD and actual
legal provisions is sought to be bridged by a range of policy principles that provide
indications as to how the imperative is to be translated into legislative practice. 83
Prominent among the policy principles facilitating SD is the idea that polluters
should pay the cost of prevention or remediation of environmental damage.
Notwithstanding the uncertainties, the polluter-pays principle and its application
through the use of economic instruments has been explicitly endorsed at almost all
levels. Hence, the Rio Declaration states:
National authorities should endeavour to promote the internalisation of environmental costs
and the use of economic instruments, taking into account the approach that the polluter
80
William Howarth, ‘Economics, Ethics and Water Pollution Control’ (2000) 2 Environmental Law
Review 135, 141.
81
Principle 1 concerns the right of human beings to a healthy and productive life in harmony with
nature and Principle 8 the duty upon all people to reduce and eliminate unsustainable patterns of
production and consumption. Stockholm Declaration on the Human Environment, UN Doc A/CONE
48/14/Rev.l (16 June 1972), 11 ILM 1416. Analogous rights and duties are to be found within the
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc A/CONF.151/26
(14 June 1992).
82
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc A/CONF.151/26
(14 June 1992) Principles 8 and 11.
83
Article 174 (ex Art. 130r) European Community Treaty, which provides for principles such as the
precautionary principle, the preventative principle and the polluter pays principle.
109
should, in principle, bear the cost of pollution, with due regard to the public interest and
without distorting international trade and investment. 84
The international community has recognised a similar need for a broadening and
deepening of the range of instruments used to complement normative regulation:
In order to get the prices right and to create market based incentives for environmentally
friendly economic behaviour; the use of economic and fiscal instruments will have to
constitute an increasingly important part of the overall approach … A first important
category of economic instruments consists of charges and levies ... In line with the polluterpays principle, such charges should be progressively reoriented towards discouraging
pollution at source and encouraging clean production processes.85
By contrast, it is maintained that economic instruments make apparent to dischargers
of effluent the wider cost of their activities, by identifying the ‘price’ of
environmental damage and making polluters pay accordingly. This confronts
polluters with a choice between paying that price or reducing their pollution and,
thereby, an incentive is provided for the development of more cost-effective
pollution control techniques. In summary, the proclaimed benefits of economic
instruments are, first, greater efficiency in achieving water quality objectives, second,
more cost-effective improvements in quality generally, and third, improved
implementation of the polluter-pays principle.86 The polluter-pays principle requires
that the costs of pollution prevention, control and reduction measures are to be borne
by the polluter. Effluent discharge fees are to be related to the costs of treating the
used water to restore it to an acceptable quality. Where the public authority does not
have the means to treat the effluent, the objective is to force the polluter (by a
combination of regulations, backed by significant penalties) to install adequate water
treatment at the source, so that the wastewater discharge is no longer an
environmental threat.
Thus, the utilisation of inland water by a country is subject to a set of substantive and
guiding principles that have developed through national and international practice.
The international community has recently reached an accord, acknowledging the
84
Rio Declaration, above n 82, 16.
85
5th Environmental Action Programme of the European Commission, Towards Sustainability, COM
92 11 (23) 67.
86
Howarth, above n 80, 141.
110
degree of complicacies due to deteriorating water quality and formally agreed to
work towards protecting inland water resources as well as improving the quality of
inland water.87 The principles for water resources management that have formed the
basis for the guidelines are derived from the conclusions88 reached at the Dublin and
Rio de Janeiro conferences. Management and guiding principles of water
management have become increasingly important both at an international as well as
national level and provide a suitable basis for better management of water. There is
an integrated relationship between those principles of water resource management
and water pollution control. Thus, lack of consideration of this relationship at a
policy level may contribute to failures to implement water management schemes
successfully. All management of water pollution should ensure integration with
general water resources management and vice versa.89
III CONTRIBUTION OF MANAGEMENT PRINCIPLES TO PROTECT INLAND WATER FROM
POLLUTION
The word sustainability always includes a consideration of the future and enhances
the welfare of future generations by preserving or enhancing the current state of
natural resources. 90 Inland water resources and their sustainable management
increasingly captures the attention of the international community. Lack of access to
safe water for domestic use, combined with conflicting demands, depleting
groundwater resources and degradation of water quality, prompts regular calls for
action to improve the state of this life-sustaining resource.91 However, considering
inland water as a basic factor in economic and social development, 92 water
87
H Larsen and N H Ipsen, ‘Framework for Water Pollution Control’ in Richard Helmer and Ivanildo
Hespanhol (eds), Water Pollution Control: A Guide to the Use of Water Quality Management
Principles (E & FN Spon, 1997) 275, 275–276.
88
Conclusions are: 1) Freshwater is a finite and vulnerable resource, essential to sustain life,
development and the environment, 2) The government has an essential role as enabler in a
participatory, demand-driven approach to development, 3) Water should be considered a social and
economic good, with a value reflecting its most valuable potential use, and 4) Water and land should
be managed in an integrated way at the lowest appropriate level.
89
Larsen and Ipsen, above n 87, 276.
90
Daniel P Loucks, ‘Sustainable Water Resource Management’ (2000) 25(1) Water International 3, 4.
91
Meredith A Giordano and Aaron T Wolf, ‘Sharing Waters: Post-Rio International Water
Management’ (2003) 27 Natural Resources Forum 163, 163.
92
A Ghosh Bobba, Vijay P Singh and Lars Bengtsson, ‘Sustainable Development of Water Resources
in India’(1997) 21(3) Environmental Management 367, 388.
111
management practices are not sustainable from these perspectives.93 Management of
water is fragmented between sectors and institutions with little regard for conflicts or
complementarities between social, economic and environmental objectives. There
are multiple agencies working for different users and inter-sectoral interactions are
ignored, with domestic, industrial and commercial supplies of water often not
coordinated properly. 94 Sustainable water resources management practices are the
prerequisites in order to protect inland water from pollution. Important guidelines for
the planning and sustainable management of water resources include:95

Developing a shared vision of desired social, economic and environmental
goals that can benefit present as well as future generations. Identifying ways
in which all parties can contribute to achieving that shared vision.

Increasing coordinated approaches among all concerned and interested
agencies to accomplish these goals, collaborating with all stakeholders in
recognition of mutual concerns.

Recognising that economies, ecosystems and institutions are complex in
nature and typically heterogeneous. These characteristics need to be taken
into account in developing management approaches.

Integrating the best science and technology available into the decision
making process, while continuing scientific research to improve knowledge
and understanding.

Establishing baseline conditions for system functioning and sustainability
against which change can be measured.

Monitoring and evaluating actions to determine if goals and objectives are
being achieved.
The SD of inland water resources is a multi-dimensional way of thinking about the
connections or interdependencies among natural, social and economic systems in the
93
Ismail Serageldin, ‘Water Resources Management: A New Policy for a Sustainable Future’ (1995)
20(1) Water International 15, 16.
94
Discussed in Chapter 6 III and Chapter 7 III.
95
Loucks, above n 90, 6.
112
use of water.96 SD is connected to IWRM since it addresses multi-dimensions like
economy, society and environment. A sustainable process involves policies and
activities that improve equality of access and quality of life for all.
Natural resources like water not only have a global dimension but also have a local
dimension, and this local dimension is equally important as the global and
encompasses a shared sense of responsibility nationally and internationally. 97 Each
state has permanent sovereignty over its natural resources with an obligation under
CIL98 not to cause any transboundary environmental damage.99 Together with this
general obligation, the principles of SD, sustainable and reasonable use of natural
resources, IWRM, AWM and the precautionary principle influences water resource
management at the international and national levels.
Water not only plays a critical role in SD but also is a key ingredient in growing food,
encouraging industrial growth and ensuring the integrity of ecosystems.
100
Conceptually, IWRM approaches promote the coordinated development and
management of water and related resources, in order to maximise the economic and
social welfare in an equitable manner without compromising the sustainability of
ecosystems. 101 Operationally, 102 IWRM approaches involve applying knowledge
from various disciplines as well as the insights from diverse stakeholders to devise
and implement efficient, equitable and sustainable solutions to (complex and
multifaceted) water and development problems. In other words, IWRM is a problem-
96
R Warren Flint, ‘The Sustainable Development of Water Resources’ (2004) 127 Universities
Council
on
Water
Resources
Water
Resources
Update
41,
46
<http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?%=1097&context=jcwre>.
97
Elena Blanco and Jona Razzaque, Globalisation and Natural Resources Law Challenges, Key
issues and Perspectives (Edward Elgar, 2011) 21.
98
Discussed in Chapter 5 II.
99
See Principle 21 of Stockholm Declaration on the Human Environment, UN Doc A/CONE
48/14/Rev.l (16 June 1972), 11 ILM 1416 and 1992 Rio Declaration on Environment and
Development, Agenda Item 21, UN Doc A/CONF.151/26 (14 June 1992) principle 2.
100
Global Water Partnership, ‘Integrating Water Resources Management: Strengthening Local
Action.’ (Thematic Document, Fourth World Water Forum, Mexico City, March 2006) 4
<http://www.worldwaterforum4.org.mx/uploads/TBLDOCTOSB_4_38.pdf>
101
Global Water Partnership (GWP), ‘Integrated Water Resources Management’ (Background Paper
No 4, GWP Technical Advisory Committee, 2000) 22.
102
The main operational aspects of IWRM come in the form of integrated planning, governance and
economic considerations that are meant to lead to sustainability.
113
solving approach that has relevancy to address key inland water challenges in an
economically efficient, socially equitable and environmentally sustainable way.103
Several countries have already been through and some104 have started the process of
putting in place elements or substantial amounts of the IWRM process to manage
their inland water. Inland water as a resource, its development and management is
specific to the geographical, historical, cultural and economic context of any country.
Thus, the IWRM process will differ from country to country and no one size can fit
all.105 The roll of IWRM depends on the developing stage of the country. Developed
countries, countries in transitional economies and developing countries all have
different ways of implementing the IWRM process and obtaining diverse benefits.
IWRM is the modern day paradigm of sustainable water management. The
philosophy of managing water resources features a shift from the previous paradigm
of increasing supply through expansion of physical solutions106 to managing demand,
increasing the efficiency of water usage and generating sustainable means for water
use. The trend of IWRM has become a framework based on the Dublin principles
(1992). 107 It seeks to promote the coordinated development and management of
water and related sources in order to maximise the economic and social welfare in an
equitable manner without compromising the sustainability of vital ecosystems. A
holistic approach to water management linking social and economic development
with the protection of environment ensures that all factors that affect water are taken
into consideration and managed.
Implementing an IWRM process is in fact moving towards an enabling environment
of appropriate policies, strategies and legislation for sustainable water resource
development and management. It is also putting in place the institutional framework
103
GWP, above n 100, 4.
104
Thailand and India’s water reform process and Brazil’s waste water reform are example of IWRM
process. Bangladesh put importance to IWRM in national water policies, strategies and laws for their
water resource development and management. A few countries in Africa and elsewhere in the world
have responded to the World Summit on Sustainable Development in Johannesburg 2002 (WSSD)
call for action and have started IWRM planning process.
105
Torkil Jønch-Clausen, Integrated Water Resources Management (IWRM) and Water Efficiency
Plans by 2005 Why, What and How? (TEC Background Papers No 10, Global Water Partnership,
2004) 9.
106
Such as build dams and canals.
107
Discussed in Chapter 1 II.
114
through which the policies, strategies and legislation can be implemented and setting
up the management instruments required by these institutions to do their job.
Although IWRM provides a framework of principles and good practices for water
governance, the details in planning and implementation must reflect local situations.
Therefore, each country needs to interpret and design its own roadmap for improving
inland water management.108 An enabling environment, institutional frameworks and
management institutions are the ‘three pillars’ of IWRM, developed by GWP.
Figure 4.2: Three Pillars Of IWRM: Enabling Environment, Institutional Framework
and Management Instruments (TAC Background Paper No 10, GWP)
IWRM is not a one-size-fits-all prescription or strategy that can be applied as a
compulsory model in all contexts and situations. 109 IWRM is a combination of
different sectors, water users and jurisdictions. It is a significant shift in the water
management mentality and paradigm, which has a holistic thinking but also gives
full consideration to local realities. Certainly, the effectiveness of IWRM, to a large
extent, relies on the recognition of different hydro-geological, demographic,
108
Tariq Banuri, ‘Integrated water Resources Management: Seeking Sustainable Solutions to Water
Management’ (2009) 33(1) Natural Resources Forum 1.
109
Vasudha Pangare et al, Global Perspectives on Integrated Water Resources Management
(Academic Foundation and World Water Institute, 2006) 48.
115
socioeconomic and cultural realities in different region.110 The three pillars of IWRM
allow the policy makers to make judgements about which set of suggestions, reform
measures, management approaches and institutional arrangements are most
appropriate according to individual cultural, social, political, economic or
environmental context.
Policy development gives an opportunity for setting national objectives for
managing water resources and water service delivery within a framework of overall
development goals. This legislative framework strengthens regulatory norms for the
conservation and protection of water resources. A critically important element of
IWRM is the integration of various sectoral
111
views and interests in the
development and implementation of the IWRM framework. Integration should take
place within the natural system112 and the human system.113 Integration within the
human system includes cross-sectoral integration of policies and strategies and
participation of all relevant stakeholders in the decision making process. IWRM
should not be seen as a single approach, but rather considered as a wide range of
approaches comprising institutional, legal, economic and environmental measures to
manage water and related sources.114
Water systems are interlinked and remain a medium of integrating local and national
economies and riparian countries with new challenges.115 Serious deficiencies and
fragmentation in national water sectors 116 are evident due to overexploitation,
shortage and pollution of inland water. An integrated approach is needed for the
110
Tushaar Shah, Ian Makin and R Sakthivadivel, ‘Limits to Leapfrogging: Issues in Transposing
Successful River Basin Management Institutions in the Developing World’ in Charles L Abernethy
(ed), Intersectoral Management of River Basins (International Water Management Institute, 2008) 89,
94.
111
Such as integration between surfacewater and groundwater management, upstream and
downstream water management, integration concerning water quality and quantity and integrating
different uses of water.
112
The natural system is important for resource availability and quality.
113
The human system fundamentally determines the use and pollution of the resource and also set the
development priorities and control associated infrastructure.
114
Roberto Lenton, ‘Integrated Water Resources Management’ (2011) 1 Management of Water
Resources 9–10.
115
Jean-Michel Chene, ‘Integrated Water Resource Management: Theory versus Practice’ (2009) 33
Natural Resources Forum 2, 2.
116
Sectors includes agriculture, industry and municipality.
116
management of each national sector as a whole. Further, the integration of risk
management and adaptation strategies with economic planning is critical to
vulnerability to weather and climate change in water-stressed environments of
developing countries.117
Figure 4.3: Cross-Sectoral Integration of IWRM
This participatory planning and implementation process brings together stakeholders
to determine long-term needs for water while maintaining essential ecological
services and economic benefits. IWRM helps to protect the environment, foster
economic growth and sustainable agricultural development and promote stakeholders
participation in governance. Governments play a key role in the implementation of
an IWRM framework and also are the main regulators and controllers in the water
sector.118
IWRM aims to promote more equitable access to water resources and the benefits
that are derived from water. It also aims to ensure that scarce water is used
efficiently and for the greatest benefit of the maximum number of people. Further,
IWRM aims to coordinate the planning of projects and activities that have both a
117
Chene, above n 115, 2.
118
Jønch-Clausen, above n 105, 10.
117
direct and an indirect impact on water resources. Finally, IWRM aims to achieve a
more sustainable utilisation of water, including for a better environment. The goal of
sustainability is to be achieved through coordination, equity and efficiency.119
There is an urgent need for water management to move from concept to
implementation. In regards to water policy formulation and implementation as well
as institutional arrangements, most of the developing countries often insist on using
certain paradigms, such as SD, IWRM and AWM. Global paradigms such as SD,
IWRM and AWM are conceptually attractive, but actual implementation in
operational terms has much to be desired.120 The process of water management does
not have an end point and will continually have to respond to new challenges and
opportunities. The IWRM concept reflects good practices rather than new directions
and can be considered an approach rather than a method or a prescription.121 The
conceptual framework of IWRM is excellent in the sense that it includes all the
favoured ingredients for good water governance. However, the fact that the
framework is based on theory and offers no kind of operational direction is a very
serious weakness. 122 The growing issues of water scarcity combined with the
perceived failure of the traditional management approaches have served as an
important impetus for IWRM, which is built upon notions of coordination, equity
and efficiency.
The scarcity and misuse of freshwater poses a serious and growing threat to SD and
protection of the environment. Human health and welfare, food security, industrial
development and the ecosystem are all at risk, unless water resources are managed
more effectively in the present decade and beyond than they have been in the past. 123
Currently, inland water management is in a transition phase. Countries like
119
Gareth J Lloyd, Patrick McCarron and Lucía Stacy, Integrated Water Resources Management:
How has IWRM Helped Exert Sustainable Water Resource Management in the Rufiji River Basin in
Tanzania? (22 April 2013) 34 <http://rudar.ruc.dk/bitstream/1800/1259/1/IWRM%20TANZAN.pdf >.
120
Cecilia Tortajada, ‘Rethinking Development Paradigms for the Water Sector’ in Caroline M
Figuėres, Cecilia Tortajada and Johan Rockström (eds), Rethinking Water Management Innovative
Approaches to Contemporary Issues (EarthScan, 2003) 8, 9.
121
Roberto Lenton and Mike Muller, ‘Conclusions: Lessons Learned and Final Reflections’ in
Roberto Lenton and Mike Muller (eds), Integrated Water Resources Management in Practice: Better
Water Management for Development (Earthscan, 2009) 205, 208.
122
Lloyd, McCarron and Stacy, above n 119, 4.
123
Ibid 53.
118
Bangladesh, where most people live on self-provided water and the access to water is
still largely informally organised, are not yet ready for the strategies IWRM requires.
SD and the implementation of management regimes are undergoing a transition
towards more AWM. There is a need for a radical change, for a paradigm shift in
inland water management.
AWM has contributed value through explicitly embracing uncertainty within the
context of IWRM. Adaptive policies are designed and guided by hypotheses
regarding the range of possible responses of the system that includes environmental
processes and human behaviour to management interventions.124 AWM is perceived
to be a mechanism to improve water management through incorporating progressive
changes by learning from the outcomes of management policies and practices. On
the one hand, this comprises learning to manage by managing to learn,125 but on the
other hand, AWM involves gaining knowledge on the further developments of the
concept and its potential application. Full engagement of stakeholders is required for
AWM, not only for information and consultation, but also in the form of support and
resources from all levels in order to deliver long lasting outcomes. 126 The increasing
awareness of uncertainties led to a re-assessment in the way natural systems are
managed. AWM can handle uncertainty by creating flexible solutions that are able to
adapt to unknown, unexpected or changing conditions.127
AWM puts an emphasis on the integration of a broad spectrum of knowledge,
constant monitoring and built-in revision of policies to manage inland water. AWM
draws on some principles 128 that have proved effective and are embodied in the
design of IWRM. It is best suited for situations where uncertainty cannot be
minimised in the short-term or where the implementation of policies cannot be
124
P van der Keur et al, ‘Introduction: Making a Strong Case for AWM’ in Jaroslav Mysiak et al (eds)
The Adaptive Water Resource Management Handbook (Earthscan, 2010) 1, 7.
125
Peter H Glecik, ‘Global Freshwater Resources: Soft-path Solutions for the 21st Century’ (2003)
302 Science 1524, 1527.
126
H Jørgen Henriksen et al, ‘ Working Towards AWM’ in Jaroslav Mysiak et al (eds) The Adaptive
Water Resource Management Handbook (Earthscan, 2010) 17, 33.
127
M Brugnach et al, ‘Tools and Instruments for Adaptive Management’ in Jaroslav Mysiak et al
(eds), The Adaptive Water Resource Management Handbook (Earthscan, 2010) 35, 45.
128
Such as stakeholders’ and public participation, cross-sectoral analysis and policy integration,
polycentric and decentralized governance, focus on transboundary efforts to manage natural resource.
119
delayed until more and better knowledge is available.
129
Continuing poor
management of water resources has serious social, economic and environmental
implications at the local and national levels over the short and the long term. Often,
such mismanagement has contributed to increasing poverty and the deterioration of
quality of life. Many developing countries have claimed that the lack of financial
support is the main constraint to fulfilling their commitment to protect inland water
pollution. Certainly, insufficient funding is a constraint, and even bigger constraints
have been the absence of leadership, technical and managerial capacities, an almost
exclusive top-down centralised approach, an absence of stakeholder participation in
the decision making process and a lack of any long-term vision in the water
development field. Not surprisingly, water problems in developing countries have
increased significantly, particularly in terms of water pollution.
AWM is not a remedy for all water management problems and neither is it a onesize-fits-all solution. There are no universal solutions for developed and developing
countries to approach inland water pollution in a similar way. Each country must
rather develop the most appropriate methodology for protecting inland water, as well
as establish its own priorities in accordance with prevailing conditions, needs,
national plans, policies and social expectations. 130 Adaptive management could
provide flexibility for the planning process to integrate new information and
experience through experimentation, trial and error and the iterative learning process.
Bangladesh needs to carefully analyse and not automatically accept solutions that
may have been articulated specially for use in developed countries. Available
alternatives should be carefully reviewed and analysed and, if necessary, adapted to
suit the conditions prevalent for the country.
IV CONCLUDING REMARKS
Significant sustainable management of inland water resources requires a holistic or
integrated approach and also an adaptive approach. These approaches have now been
globally recognised in relation to protecting inland water from pollution. The
application of SD and IWRM in inland water pollution control issues needs better
129
H Jørgen Henriksen et al, ‘Summary and Outlook’ in Jaroslav Mysiak et al (eds), The Adaptive
Water Resource Management Handbook (Earthscan, 2010) 183, 183.
130
Tortajada,above n 120, 17.
120
coordination between different levels of government agencies, giving emphasis to
interdependencies among natural, social and economic uses of inland water.
SD as an environment management tool, IWRM and AWM as exclusively water
management principles and polluter-pays and precautionary principles develop new
understandings of inland water pollution control. It is beyond questionable that the
above mentioned principles have contributed significantly to improve inland water
pollution control regimes. However, all these principles have some scientific and
economic implications as far as their enforcement is concerned. Effective
implementation of these principles requires an improvement or even a shift in current
legal and institutional thinking and a setting that is progressive and innovative.
121
CHAPTER 5: THE GLOBAL FRAMEWORK FOR PROTECTING
INLAND WATER POLLUTION
I
INTRODUCTION
This chapter aims to identify the mandatory and globally accepted fundamental
framework of international watercourses law that could serve as a guideline to
protect inland water from pollution. In doing so, the development of transboundary
water resources management principles and the works of different INGOs 1 and
various judicial and arbitral decisions are analysed. This charter examines
inadequacies and discrepancies between the benchmarks management principles 2
and the international legal framework in controlling inland water pollution by
analysing different conventions, regulations, resolutions and judicial decisions.
This chapter also analyses the relevant CIL and establishes a relationship between
the international legal framework and different management principles in order to
inaugurate a benchmark. Despite the fact that the ICJ has had no occasion to rely on
writings of international jurists, the rules proposed in such writings have been
sometimes favourably accepted by states.3 The Helsinki Rules, the UN Watercourse
Convention and most recently the Berlin Rules, formulated and adopted by ILA,
have been incorporated into international agreements. Even in the absence of general
recognition, these documents have received further appreciation in treaty-making
activities. However, internationally, still more work needs to be done for effective
control of inland water pollution. This chapter concludes that these principles
considered in accordance with the development of CILs of transboundary water may
be beneficial for incorporation into any national and integrated institutional
framework relating to inland water pollution control.
II THE ROLE OF CUSTOMARY INTERNATIONAL LAW (CIL) TO PROTECT INLAND
WATER POLLUTION
CIL is one of the main sources of international law that plays an increasingly
prominent role in the international legal system relating to inland water pollution.
1
IIL, ILA and ILC.
2
Discussed in Chapter 4 II.
3
Dante A Caponera, Principles of Water Law and Administration National and International (Taylor
& Francis, 2nd ed, 2007) 202.
122
The Permanent Court of International Justice (PCIJ) and its successor the ICJ have
held that many rules involving the rights to the world’s water resources have now
entered the realm of customary law.4 The rule of CIL comprises the distinct feature
of international law derived from custom along with general principles of law and
treaties. In particular, custom is considered by the ICJ and jurists and the UN and its
member states to be a primary source of international law.5
The processes to create international law—both in general and in relation to
international water resources—are many and varied. 6 ICJ, whose function is to
decide international disputes in accordance with international law, can be a starting
point of some acceptable international principles. The Statute of the ICJ describes
CIL as ‘international custom, as evidence of a general practice accepted as law’.7
Article 388 of the Statute of the ICJ provides some directions that the court follows;
however, this article does not consider any activity of the international organisations
or even the final acts of international conferences. According to Article 38(1)(d) of
the Statute of the ICJ, the court has taken into account the decisions of judiciary and
doctrines of qualified authors subject to the provisions of Article 59.9 This means
that the sources of international law are not binding and their degree of applicability
depends on the judgement of judges and arbitrators.10 The statute only acknowledges
CIL as a source where there is: 1) ‘evidence of general practice’ (the objective
4
Brian D Lepard, Customary International Law: A New Theory with Practical Applications
(Cambridge University Press, 2010) 5.
5
Antoinette Hildering, International Law, Sustainable Development and Water Management (Eburon
Publishers, 2004), 13.
6
Dante A Caponera, ‘The Law of International Water Resources’ (Legislative Study No 23, Food and
Agricultural Organisation of the United Nations, 1980) 9.
7
Statute of International Court of Justice (ICJ), art 38(1)(b).
8
Ibid, article 38(1) describing the law to be applied by the ICJ when deciding cases within its
jurisdiction, is generally considered to be the most authoritative enumeration of the sources of
International Law: ‘(a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting States; (b) international customs, as evidence of a general
practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) ...
judicial decisions and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.’
9
Ibid, article 59 provides that: ‘the decision of the Court has no binding force except between the
parties and in respect of the particular case’.
10
Guillermo J Cano, ‘The Development of the Law of International Water Resources and the Work of
the International Law Commission’ (1989) 14 Water International 167, 167.
123
element) and it is 2) ‘accepted as law’ (the subjective element). 11 There are two
contemporary approaches to the acceptance of CIL, namely: 1) the ‘conventional’,
which emphasises state practice (usus), 12 and 2) the ‘modern or logical’, which
emphasises such practice is required (opinion juris).13 Both approaches are necessary
to establish a legally binding custom.14 Individual state practices turn opinion juris
into CIL when a significant number of states follow the same practice on a particular
issue in a consistent manner and when this practice is not rejected by a significant
number of states. 15 ICJ reaffirmed these elements in the 1985 Continental Shelf
Case16 by stating that the substance of CIL must be looked for primarily in the actual
practice and opinion juris of states.
The Statute of the ICJ, having been adopted prior to the emergence of the
phenomenon, takes no account of the resolutions of IGOs containing ‘declarations of
principles’ of conduct in relations between states. Nevertheless, the United Nations
General Assembly (UNGA) has also adopted a series of resolutions dealing with
international water resources. A few of these resolutions are: 1803(XVIII) on
permanent sovereignty over natural resources, 14 December 1962; 2995(XXVII) 17
on cooperation between states in the field of the environment, 15 December 1972;
and 3129(XXVII) 18 on cooperation in the field of the environment concerning
natural resources shared by two or more states, 13 December 1973. These resolutions
have had a notable influence on the process of formation and development of the
general rules of international law governing the respective subject matter. Also, the
declarations and recommendations of different intergovernmental conferences
11
David John Harris, Cases and Materials on International Law (Sweet & Maxwell, 7th ed, 2010)
790.
12
Usus refers that the practice is consistent among states and endures over some period of time.
13
Opinio juris is also called the ‘opinion of law’, which refers that the states believe that the practice
is legally mandated.
14
Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International Law: A
Reconciliation, (2001) 95(4) American Society of International Law 757, 757.
15
Hildering, above n 5, 12.
16
Libya v Malta, ICJ Rep.13, para 27.
17
See United Nations Resolutions adopted by the General Assembly during its Twenty-Seventh
Session, 19 September to 19 December 1972, 42.
18
See United Nations Resolutions adopted by the General Assembly during its Twenty-Eighth
Session, 18 September to 18 December 1973, 48.
124
convened by the UNGA have been adopted. Prominent in the list in regards to water
are the declarations and recommendations of the Stockholm Conference19 and the
Mar del Plata Conference (1977).20
The Statute of the ICJ21 treats the ‘general principle of law recognised by civilised
nations’ as a subsidiary source, to be drawn upon only in the absence of international
conventions or customary rules. These general principles 22 developed through
judicial decisions and in scholarly work put some firm limitations on the sovereignty
of a state in the case of international water resources. If a state uses their own
territory/water resources in a way that causes unjustified loss or damage in another
state, such action should be deemed to be contrary to international law and
considered the abuse of right principle. Under the good neighbour principle,
territorial sovereignty is, of course, a spur to greater collaboration. No state may
engage on its own territory in such activities that may cause some damages to the
territory of other state.
A Customary and General Principles of Watercourses Law
The importance of water has been recognised from the remotest time, and a number
of civilisations of antiquity developed precisely along the bank of great rivers. 23
Even in those early ages, people appreciated the need to have a body of rules
governing the use of waters. Two broad principles24 were respected as a basis on
which to organise the joint use of the water resource. There were no normative
regulatory guidelines for the non-navigational use of transboundary water resources
until the 1950s.25 In the absence of globally accepted regulatory guidelines, riparian
19
See the ‘Report of the UN Conference on the Human Environment’ (UN Publications, Sales No.
E.73.II.A.14).
20
See the ‘Report of the UN Water Conference’ (UN Publications, Sales No. E 77.II.A.12) E/CONF
70/29.
21
Statute of the ICJ, art 38(1)(c).
22
Principles are: 1) there shall be no abuse of rights, 2) good neighbourly relationship between the
states and 3) embodied in the water laws of individual states.
23
Such as the Hwang Ho, Tigris and Euphrates, Nile, Indus and Ganges.
24
One is the sovereignty of the state on which water resources of interest to other states were to be
found and other is the principle of cooperation and solidarity.
25
Surya P Subedi (ed), International Watercourses Law for the 21st Century: The Case of the River
Ganges Basin (Ashgate, 2005) 8.
125
states invoked different theories and doctrines to justify their claims over
transboundary water.26
The development process of international principles governing transboundary water
has followed closely the economic, social, technical and political needs of the
society.27 Some important customary and general principles of watercourses law are
accepted globally and incorporated in modern international conventions, agreements
and treaties. These principles are widely supported by legal decisions and scholarly
work. The role of these principles in preventing inland water pollution is extensively
accepted. Those that have more relevance to transboundary watercourses are
discussed below.
1
Principle of Equitable and Reasonable Utilisation
The foundation of equitable and reasonable utilisation of water has faith in shared
sovereignty theory. This use-oriented principle is derived from the theory of limited
territorial sovereignty. It entitles each riparian state to a reasonable and equitable
share of common water resources for beneficial uses within its own territory. 28
Equality of rights does not necessarily mean equal share of waters. 29 Equitable and
reasonable share is determined by some relevant factors, such as the geography and
hydrology of the water sources, existing utilisation and potential economic and social
needs, dependent population, climatic and ecological factors. 30 This principle
considers a balance of interests and accommodates needs and uses of each riparian,
and must get substantial support in state practice, judicial decisions
31
and
international codifications.32 This principle has been applied in the management and
26
Aaron T Wolf and Joshua T Newton, ‘The Danube River Basin: Joint Responsibility for River Basin
Management’ in Anton Earle, Anders Jägerskog and Joakim Őjendal (eds), Transboundary Water
Management Principles and Practice (Earthscan, 2010) 60.
27
Caponera, above n 6, 6.
28
Article IV of the Helsinki Rules (1966) and Article 5 of the UN Watercourse Convention (1997).
29
Muhammad Mizanur Rahaman, ‘Principles of International Water Law: Creating Effective
Transboundary Water Resources Management’ (2009) 1(3) International Journal of Sustainable
Society 207, 210.
30
Article V of the Helsinki Rules (1966), Article 6 of the UN Watercourse Convention (1997) and
Articles 13 of the Berlin Rules (2004).
31
The decision of the ICJ in Hungary v Slovakia (Gabčίkovo-Nagymaros) case.
32
Patricia W Birnie and Alan E Boyle, International Law and the Environment (Oxford University
Press, 2nd ed, 2002) 302.
126
utilisation of water resources at the national and international level. 33 This principle
is also recognised in international and regional treaties, conventions, multi and
bilateral regulatory instruments and international case law references relating to the
utilisation of water resources.
In the US, in the earliest of the river water cases34 the Supreme Court held that the
dispute must be settled on the basis of equality of rights. In other interstate water
dispute cases,
35
the Supreme Court has applied the doctrine of equitable
apportionment. In India, in a dispute between the Sind and the Punjab provinces
concerning the use of the waters of Indus River, the report of the Indus
Commission 36 upheld the rule relating to equitable apportionment. In the River
Krishna dispute between a couple of states, the tribunal constituted by the central
government decided that groundwater is a relevant factor to be taken into
consideration for equitable distribution of water. Again, in the Narmada dispute
between states, the tribunal decided on the basis of the principle of equitable
apportionment. It can be concluded from some of the national tribunals’ decisions
that neither riparian state has an absolute right to use the waters; they need to
consider the needs of neighbouring states.37
2 Obligation Not to Cause Significant Harm (No Harm Rule)
This principle is also a part of the theory of limited territorial sovereignty and widely
recognised in international law. However, questions remain as to the definition or
extent of the word ‘significant’ and how to define ‘harm’, as a ‘significant harm’ is a
debatable notion. 38 According to this principle, no states are allowed to use
international watercourses in their territory in a way that would cause significant
harm to other riparian states. This principle is now considered part of the CIL and
33
J Barandat and A Kaplan, ‘International Water Law: Regulations for Cooperation and the
Discussion of the International Water Convention’ in W Scheumann and M Schiffler (eds), Water in
the Middle East: Potential for Conflicts and Prospects for Cooperation (1998) 11.
34
Kansas v Colorado 185 US 125 (1902).
35
Connecticut v Massachusetts 282 US 660 (1931), New Jersey v New York 283 US 805 (1931) and
Nebraska v Wyoming 325 US 589 (1945).
36
Report of the Indus (Rau) Commission (1942), 11–12.
37
Caponera, above n 6, 19.
38
Rahaman, above n 29, 211.
127
incorporated in most water conventions, treaties and agreements,
39
and also
acknowledged by contemporary international environmental declarations and
conventions.40 Judicial decisions in the international arena uphold this principle to
resolve the conflict of riparian states. 41 In 1941, in the Trail Smelter Dispute, the
arbitral tribunal affirmed that under the principles of international law, no state has
the right to use or permit to use its own territory in such a manner as to cause injury
to other states. 42 Incorporations of this principle in national laws and bilateral
regulatory arrangement could be very useful to minimise the conflict between
different water users.
Among arbitral decisions, the Faber Case 43 raises issues on the innocent use of
rivers and can be regarded as yet another principle of international water resources
law that has gained importance. In this context, the arbitral award of the Trail
Smelter Case 44 is also important. The tribunal made the award on the basis of a
principle45 that is well recognised in municipal and international law. In the Lake
Lanoux Case the tribunal was interpreting a particular treaty that made the interests
of all riparian states a principle of overriding concern. Adjudications by international
tribunals (River Oder Case, Trail Smelter Case and Lake Lanoux Case) reveal a
tendency towards construction of the rights of the riparian states in terms of the
theory of limited sovereignty46 on transboundary water resources.
39
Articles V, X, XI of the Helsinki Rules (1966) and Articles 7, 10, 12, 15–17, 19, 20, 21.2, 22, 26.2,
27, 28.1, 28.3 of the UN Watercourse Convention (1997); Articles 8, 10.2 and 16 of the Berlin Rules
(2004); Articles 7, 8 and 9 of Mahakali River Treaty (1996); Articles 3, 7, 8 of Mekong Agreement
(1995).
40
Principles 21 and 22 of Stockholm Declaration on the Human Environment, UN Doc A/CONE
48/14/Rev.l (16 June 1972), 11 ILM 1416, Principles 2, 4, 13, 24 of 1992 Rio Declaration on
Environment and Development, Agenda Item 21, UN Doc A/CONF.151/26 (14 June 1992) and Article
3 of the Convention on Biological Diversity (1992).
41
Lake Lanoux Arbitation Case (Spain v France) (1957) 24 International Law Reports 101.
42
Trail Smelter Case (United States v Canada) (Awards) (1941) 3 UN Reports of International
Arbitral Awards 1907, 1965.
43
See The Faber Case (Germany v Venezuela) (Awards) (1903) UN Reports of International Arbitral
Awards X.
44
See United States of America v Canada (1938) UN Reports of International Arbitral Awards III.
45
No state has the right to use or permit the use of its territory in a manner as to cause injury to the
territory of another or the properties or persons therein.
46
Discussed in Chapter 3 IV C.
128
3 Principles of Prior Notification and Cooperation
Each riparian state of an international watercourse is entitled to prior notification in
cases where the proposed use by any riparian may cause harm to other riparian rights
or interest.47 It is an obligation to every riparian to notify, consult and negotiate in
cases if the proposed use of transboundary water resources may cause harm to the
rights and interests of other states.48 However, most upstream states often oppose or
ignore this obligation due to their favourable geographical position. 49 Moreover,
responsibility belongs to each riparian state of an international watercourse to
cooperate and exchange data and other necessary information regarding the present
and future planned uses along the watercourse.50 These principles are also accepted
by international conventions, treaties and agreements 51 and acknowledged by
existing international environmental declarations and conventions. For example,
Principles 13, 22 and 24 of the Stockholm Declaration, Principles 7, 9, 12, 13, 17–19
and 27 of the Rio Declaration and Articles 5, 17 and 27.1 of the Convention on
Biological Diversity, all of which place importance on sharing data and information.
The Mar del Plata Action Plan (1977) recommends regional cooperation on shared
natural resources to generate appropriate data sharing.52
4 Principle of Peaceful Disputes Settlement
This principle confirms that all riparian states in an international watercourse have an
obligation to settle the disputes peacefully, in case concerned states cannot reach an
agreement by negotiation. This principle establishes the integration of various
standards and norms of international watercourses law in relation to the utilisation
47
Rahaman, above n 29, 211.
48
Birnie and Boyle, above n 32, 319.
49
M Rafiqul Islam, Ganges Water Disputes: Its International Legal Aspects (University Press
Limited, 1987) 82.
50
Birnie and Boyle, above n 32, 322.
51
Articles XXIX–XXXI of the Helsinki Rules (1966) and Articles 3.2, 5.2, 8, 9, 11- 19, 27, 28, 30 of
the UN Watercourse Convention (1997); Articles 57–60 of the Berlin Rules (2004), preamble; Articles
1, 2, 5, 6, 9, 11, 15, 18, 24 of Mahakali River Treaty (1996); Articles 3, 7, 8 of Mekong Agreement
(1995).
52
Daud Hassan (ed), International Rivers: Rights of the Riparian States (Bangladesh Environmental
Lawyers Association, 2009) 318.
129
and management of transboundary water resources.53 This principle is incorporated
in modern international water law instruments. Examples include Articles XXVI–
XXXVII of the Helsinki Rules (1966) and Article 33 of the UN Watercourse
Convention (1997) and Articles 72 and 73 of the Berlin Rules (2004). In recent times,
this principle has been acknowledged and incorporated in intrastate practices as one
of the fundamental provisions to settle disputes peacefully in sharing transboundary
water resources, such as Article 9 of the Indus Water Treaty (1960), Articles 9 and
11 of the Mahakali River Treaty (1996) and Articles 18C, 24F, 34 and 35 of the
Mekong Agreement (1995).
5 Principle of Common Management/Community of Interest
A common management approach is another emerging principle of managing
international watercourses where resources are regarded as an integrated whole and
managed as an economic unit. This is an approach to managing water problems
rather than a normative principle of international water law. It has been widely
endorsed by the international community54 and adopted by international codification
bodies, including the Institute of International Law (IIL) and the ILC.
Recommendation 51 of the Action Plan of the Stockholm Conference called for the
creation of joint commissions or other appropriate machinery for cooperation
between interested states for water resources common to more than one jurisdiction
and set down a number of principles to guide the commissions.55
The common management process is based on the assumption that an international
watercourse is better managed as an integrated whole and that the equitable
utilisation and SD of that resource can be ensured through joint and efficient
institutional administration and monitoring planning.
56
Common management
institutions are successfully managing transboundary water resources throughout
53
Md. Jakerul Abedin, The Ganga-Brahmaputra-Meghna (GBM) Watershed Governance: Potential
for a Multilateral Regulatory and Integrated Management Under International Law (PhD Thesis,
Macquarie University, 2012) 229.
54
Patricia Birnie and Alan E Boyle, International Law and the Environment (Clarendon Press, 1992)
223.
55
See Stockholm Declaration on the Human Environment, UN Doc A/CONE 48/14/Rev.l (16 June
1972), 11 ILM 1416, recommendations 51(b) (i, ii, iii).
56
Malgosia Fitzmaurice and Gerhard Loibl, ‘Current State of Development in the Law of
International Watercourses’ in Surya P Subedi (ed), International Watercourses Law for the 21st
Century: The Case of the River Ganges Basin (Ashgate, 2005) 19, 29.
130
every region of the world. 57 The uneven distribution of freshwater on Earth has
brought riparian nations together in the past and it will inevitably bring more
disparate members of international community together in the future. 58 The notion of
community interest in freshwater resources has a significant role to play in this
process.
In Europe, in cases concerning the diversion of water from a transboundary river,59
PCIJ chose to interpret and base its decisions on a particular treaty 60 concluded
between the parties relating to water resources. In the cases relating to the territorial
jurisdiction of the International Commission of the River Oder, PCIJ introduced the
principle of community interests of riparian states,61 which later is considered one of
the customary rules of international law.
The rights to water are neither ensured by the state governments nor respected by the
riparian states under international law. Often, the responsible states accuse each
other and shift the blame to different issues such as water unavailability or climate
change impacts. Therefore, to ensure the fundamental needs of the people, the
utilisation of transboundary water resources need to be undertaken through
multilateral and integrated cooperation. However, the scope of these principles in
state practices on water resources management within the country or different
stakeholders could be useful.
The only method by which municipal law (law applied by national tribunals) can be
transformed into international law is through its recognition as by the Statute of the
ICJ. 62 However, states can apply these principles 63 in treaties and agreements
concerning common water resources not as a legal obligation resulting from a
57
Stephen C McCaffrey, The Law of International Watercourses (Oxford University Press, 2nd ed,
2007) 159.
58
Ibid 170.
59
The diversion of water from the river Meuse between Belgium and Netherlands (1937).
60
The Netherlands and Belgium concluded a Treaty on 12 May 1863 in order to ‘settle permanently
and definitively the regime governing diversions of water from the Meuse for the feeding of
navigation canals and irrigation channels.’
61
Parties are Germany, Denmark, France, Great Britain, Sweden, Czechoslovakia and Poland.
62
Article 38(1)(c) of the Statute of the ICJ: ‘general principle of law recognised by civilised nations’.
63
Principles of Equitable distribution and apportionment.
131
general customary norm but as a matter of practical utility and convenience. 64 The
decision of the ICJ in Hungary v Slovakia (Gabčίkovo-Nagymaros project) and the
separate opinion65 in Argentina v Uruguay (pulp mills on the River Uruguay) case
recognised SD as part of the legal norms existing in international law. This is
destined to be a prominent feature of the emerging landscape of international
environmental law66 in protecting inland water from pollution.
CIL has a role in managing and preventing conflicts between the countries relating to
water and encouraging using water for sustainable use. Moreover, CIL has sought to
prevent conflicts relating to water by providing rules for water-sharing between the
riparian states. However, it is the resource management rather than the demand
management that can address the competing demands for water between states and
create a synergy in water rights with environmental needs for the long-term welfare
of the people residing in the same watersheds.67 The international community needs
to adopt a more comprehensive international instrument designed to deal with all
major aspects of water, including sustainable use and conservation of water, control
of pollution of water as well as equitable and reasonable use of water everywhere
rather than just in international watercourses.
III CONTRIBUTIONS OF INGOS THROUGH THE DEVELOPMENT OF INTERNATIONAL
WATERCOURSES LAW RELATING TO INLAND WATER POLLUTION
International watercourses law has been developed through universal response. The
development of international initiatives will be helpful to identify the fundamental
principles of international watercourses law. International and regional IGOs and
INGOs adopted many declarations, recommendations and resolutions particularly
applicable to specific region or geographical locations without having any universal
character or application. 68 INGO initiatives and scholarly institutions reflect the
64
Caponera, above n 6, 19.
65
Separate Opinion of Judge Cancado Trindade.
66
Rajendra Ramlogan, Sustainable Development: Towards a Judicial Interpretation (Martin Nijhoff
publishers, 2011) 49.
67
Surya P Subedi, ‘Regulation of Shared Water Resources in International Law: The Challenge of
Balancing Competing Demands’ in Surya P Subedi (ed), International Watercourses Law for the 21st
Century The Case of the River Ganges Basin (Ashgate, 2005) 7, 18.
68
See UN General Assembly ‘Legal Problems Relating to the Utilisation and Use of International
Rivers’ UN Doc A/5409 of 15 April 1963, Part IV and Annex I.
132
significance of the issue concerning the management and utilisation of international
watercourses. The resolutions, declarations and regulations framed and adopted
through different conferences and organisations gave rise to the general principles of
international watercourses law, which are regarded as the modern transboundary
water management instrument. They have significantly contributed to the
development of international watercourses law and its fundamental principles. 69
These fundamental principles can be applied to protect inland water from pollution.
In the process of developing and protecting international watercourses law, initial
attention has given visible, immediate water pollution issues, which tended to be
local or regional in nature. This process primarily developed in Europe and North
America. Early international efforts concerned transboundary resources use or
pollution, for example, the shared use of transboundary water or the fumes emitted
by a trail smelter causing damage to crops in another country.70 International legal
responses to these problems involving the application of traditional principles of CIL
grounded in state sovereignty and related to territorial integrity and state
responsibility were generally ad hoc and intermittent.71
International law protecting water began to emerge only in late 1960s and 1970s
with significant involvement by international organisations and NGOs. The UN
convened a series of mega conferences starting with the Stockholm Conference in
1972. The Stockholm Conference, in turn, resulted in the UNGA establishing the
first multilateral environmental institution named the UNEP. 72 Other IGO events
include the Rio Conference in 1992, Johannesburg WSSD 2002 and the Rio + 20
Earth Summit held in Rio de Janeiro in 2012.
69
Irina Zodrow, ‘International Aspects of Water Law Reforms’ in Philippe Cullet et al (ed), Water
Law for the Twenty-First Century: National and International Aspects of Water Law Reform in India
(Routledge, 2010) 37,38; Daud Hassan (ed), International Rivers: Rights of the Riparian States
(Bangladesh Environmental Lawyers Association, 2009) 1, 9.
70
Daniel Bodansky et al, ‘International Environmental Law Mapping the Field’ in Daniel Bodansky,
Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law
(Oxford University Press, 2007) 1, 3.
71
Ibid.
72
UNEP, established in 1972, is the voice for the environment within the UN systems. UNEP
provides regional and international assistance to countries in elaborating existing international rules
and regulations, including agreements to advance sustainable use and development of transboundary
water resources. This organization also encourages cooperation between concerned States to enhance
sustainable use development of shared water resources, e.g. by adopting agreements or establishing
joint management mechanisms.
133
B The United Nations Conference on the Human Environment 1972, Stockholm
The Stockholm Declaration is one of the earliest international instruments that
recognises that ‘the natural resources of the earth … water … must be safeguarded
for the benefit of present and future generations’.73 The conference developed the
concept of international environmental law involving and regulating various
environmental components74 and incorporating them into the international regulatory
instruments concerning environmental protection. 75 It tied the developed and
developing nations together for the first time to determine the rights of a healthy and
productive environment for every human being. This conference not only signalled
the emergence of environmental issues on the international agenda but also
considered specific recommendations for the protection of water resources as an
integral part of the ecosystem.76
C The United Nations Conference on Water 1977, Mar del Plata
The Mar del Plata Conference was the first intergovernmental conference devoted
exclusively to water.77 Specific water instruments, such as the Mar del Plata Action
Plan (MPAP) declared that all people have a right to drinking water in quantities and
of a quality equal to their basic needs.78 It also recognised the increasing scarcity of
freshwater resources and established basic guidelines for monitoring water
management that covered the essential components79 of water management.80 The
conference produced new knowledge and information on various aspects of water
resources management strategies and stressed out the need for efficient and joint
73
Principle 2: ‘The natural resources of the earth, including the air, water, land flora and fauna and
especially representative samples of natural ecosystems must be safeguarded for the benefit of present
and future generations through careful planning or management, as appropriate.’
74
Such as water, air, fauna and flora.
75
Francisco Nunes Correia and Joaquim Evaristo da Silva, ‘International Framework for the
Management of Transboundary Water Resources’ (1999) 24(2) Water International 86, 91.
76
Abedin, above n 53, 148.
77
The Mar del Plata World Conference on Water Resources was held at Mar del Plata city in
Argentina from 14–25 March 1977.
78
Preamble, ‘Report of the UN Water Conference’ (Mar del Plata, March 14–25, 1997).
79
It includes environment, health and pollution control, planning and policy making, public education
and information, training and research, regional and international cooperation.
80
Asit K Biswas, ‘From Mar del Plata to Kyoto: An Analysis of Global Water Policy Dialogue’ (2004)
14 Global Environmental Change 81, 82.
134
institutions, better management practices, exchange of data and information and
long-term integrated plans for the SD.81
D International Water Supply and Sanitation Decade (1981–1990)
The UN and the WHO were sufficiently concerned about the water problems of the
world’s poor nations that they designated the period of 1981–1990 to be the
International Water Supply and Sanitation Decade.82 This decade was dominated by
an engineering approach and mainly focused on the extension of technical
infrastructure for overcoming shortages in water supply and waste water disposal.
Although water scarcity received more publicity in the decade throughout the world
and the different programmes carried out reached a large number of people in
developing countries, the overall aim of providing clean water for all was by far not
achieved. 83 In spite of the water decade and the rhetoric of many international
organisations and documents, the common feature of international events in that
decade showed a remarkable neglect and an underestimation of the seriousness of the
global water situation. This water blindness84 is viewed by many scholars as a lost
decade for international water policy.85
E
International Conference on Water and the Environment (ICWE) 1992, Dublin
The Dublin ICWE was the first major and comprehensive UN supported water
conference since Mar del Plata 1977. The objective of the conference was to make
an assessment of the status of the world freshwater resources and the developed
coordinated approaches to managing those resources by strengthening linkages
between national bodies and the international community. It also emphasised
formulating environmentally sustainable strategies and increased awareness of the
environmental consequences and development opportunities in improving the
management of water resources. Participants agreed on the need for concerted action
81
Waltina Scheumann and Axel Klaphake, ‘Freshwater Resources and Transboundary Rivers on the
International
Agenda: From UNCED to RIO+10’ (Bonn, 18 January 2001)
<http://www.bvsde.paho.org/bvsarg/i/fulltext/freshwater/freshwater.pdf >.
82
The goal was to provide every person with access to water of safe quality and adequate quantity by
1990.
83
Scheumann and Klaphake, above n 81.
84
Asit K Biswas, ‘Deafness of Global Water Crisis: Causes and Risks’ (1998) 27(6) Ambio 493.
85
Scheumann and Klaphake, above n 81.
135
to reverse the trends of overconsumption, pollution mismanagement and rising
threats of water resources.
The conference report contained recommendations of actions that should enable
individual states to tackle their water problems in an integrated manner, on a wide
range of fronts and in regional international cooperation. The four guiding principles
adopted in the conference are usually quoted as the Dublin principles86 became the
basis for water resources management globally. These principles are a particularly
significant example that has widespread acceptance by the international community.
Indeed, the number of documents and statements quoting the principles are currently
being circulated internationally is a clear indication of their importance and
acceptance.87 It has been recognised that water needs to be manage as an economic
good and it is imperative to achieve efficient and equitable use of water. The ICWE
findings gave importance to fundamental new approaches of action for the
assessment, development and management of the freshwater resources through the
political commitment and involvement of the policy makers at the international,
national and local level. The recommendations of this conference statement88 have
significantly contributed to the development of international watercourses law and
negotiations on transboundary water resources management.89
The Dublin principles address the fundamental problems lacking in transboundary
water resource management and identify institutional weaknesses and malfunctions
as major causes of ineffective and unsustainable water services, thus urging riparian
states to build their institutional capacity. Moreover, these principles are considered
a framework of action on SD of freshwater resources and a benchmark for future
guidelines for the elaboration of national and regional action. 90 These principles are
not legally binding and are not basic principles of international water law, but
undoubtedly this conference statement has significantly contributed to the
86
Discussed in Chapter 1 II .
87
For example, in order to join the Global Water Partnership (GWP), commitment to the Dublin
principles is obligatory. The GWP is an international network of organisations and institutions that are
interested in the sustainable use of water resources, see <www.gwpforum.org>.
88
Discussed in Chapter 5 III E.
89
Scheumann and Klaphake, above n 81, 13.
90
Ibid.
136
development of international watercourses law and negotiations on transboundary
water management.91 Due to considering three dimensions92 of water management,
globally the Dublin principles remain the clearest, most comprehensive and farreaching political statement since it emerged.
F
United Nations Conference on Environment and Development (UNCED) 1992,
Rio de Janeiro
Despite the illustrious precedents (the MPAP 1977 and the Dublin Statement 1992),
water resources were not a prime issue at the Rio Conference. 93 The Rio Earth
Summit is the largest environmental and development conference ever organised and
focused on finding a way to relieve the pressures on the global environmental
systems through the introduction of SD. 94 The Rio Declaration produced 27
principles in relation to the SD of water resources and environmental protection.
Among those, Agenda 21 entailed a comprehensive strategic plan of action at the
local, national, regional and global levels to use water more sustainably. The
conference encouraged the development of national strategies, plans, policies in the
light of sustainable social and environmental development. The UNCED
significantly inspired further work to develop international water and environmental
law. 95 Since 1992, when both the Dublin Conference and the Rio Conference
adopted the four principles of IWRM to guide governments towards better
management of the resource, the water sector has witnessed a substantial change.96
91
Ibid.
92
The ‘ecological dimension’ requires the holistic management of water resources, the ‘institutional
dimension’ requires stakeholders participations with responsibility at the lowest appropriate level of
management and the ‘instrument dimension’ requires regulatory frameworks to manage water as an
economic resource. For details, see John Briscoe, ‘Managing Water as an Economic Good’ (Keynote
Paper to the International Committee on Irrigation and Drainage Conference on Water as an
Economic Good, Oxford, September 1997) 9.
93
Stefano Burchi, Law and Sustainable Development since Rio-Legal Trends in Agriculture and
Natural Resource Management (Food and Agricultural Organisation, 2002) 147.
94
In this conference, participants of government representatives from around the globe recognised the
need to redirect international and national plans and policies to ensure that all economic decisions
fully took into account any potential environmental impact.
95
Scheumann and Klaphake, above n 81, 11–13.
96
Kess Leendertse and Paul Taylor, ‘Capacity Building and Knowledge Sharing’ in R Quentin
Grafton and Karen Hussey (eds), Water Resources Planning and Management (Cambridge University
Press, 2011) 274, 274.
137
Many subsequent international conferences have reaffirmed the importance of
IWRM as the new paradigm in water management.
In 2000, the UN declared the MDGs97 that all 193 members of the UN and at least 23
international organisations have agreed to achieve by the year 2015. These eight
international development goals include water-related goals such as to halve the
proportion of the world’s people living without sustainable access to safe drinking
water and to stop the unsustainable exploitation of water resources by developing
water management strategies at the regional, national and local levels, which
promotes both equitable access and adequate supplies. The MDGs emphasise that
individual policies required to achieve these goals should be tailored to specific
country’s needs. The MDGs call for reducing the number of people to half without
halving the access of water by the year 2015.98 Although the MDGs have focused
attention on the problem of drinking water, they are lacking in a programme focusing
on the use of water to feed a more populous world.
G World Summit on Sustainable Development (WSSD) 2002 (Rio + 10)
After the Rio Conference (1992), protection and development of water resources
attracted increasing attention and a considerable number of international conferences
were organised. The necessity, interpretation and implementation of the Rio and
Dublin principles have been restated, reaffirmed and elaborated at those international
conferences. As part of the follow-up action, the WSSD99 dealt with the following
freshwater-related issues: decentralisation of governance, community empowerment,
education and awareness. The WSSD 2002 adopted the Johannesburg Plan of
Implementation (JPoI) for participatory states to specifically develop IWRM100 and
water efficiency plans. This target was included in the JPoI in recognition of the
97
In September 2000, world leaders came together at United Nations to build up a global partnership
to setting out a series of time-bound targets with a deadline of 2015 that has become known as
Millennium Development Goals (MDGs).
98
United Nations Environment Programme, ‘Law as an Instrument for Translating the Millennium
Development Goals into Action’ (Background Paper, UNEP, 16–17 February 2005) 12.
99
The summit is popularly known as Earth Summit and took place in Johannesburg, South Africa.
WSSD held after ten years of first Earth Summit therefore it was informally nicknamed as ‘Rio+10’.
100
Discussed in Chapter 4 I B.
138
strategic importance of improved water resources management in achieving the
MDGs.101
H Rio Earth Summit 2012 (Rio+20)
The Earth Summit (2012)102 took place in Brazil to mark the 20th anniversary of the
1992 Rio Conference. This summit provided a historic opportunity to define
internationally accepted pathways to a sustainable future so that all can act locally to
secure their common future. The final outcome of the Earth Summit (2012)
addressed many issues103 that have relevancy with water. It recognised the necessity
of affordable technologies for efficient agriculture, reuse of treated wastewater,
water storage and harvesting (outcome 109). 104 Water has been recognised as the
core of SD in outcome 109. The conference also reaffirms the 2015 water
commitments of the JPoI and UN MDGs and supports the IWRM and water
efficiency plans to ensure sustainable use of water. It also commits to improve the
implementation of IWRM at all appropriate levels, supply and demand management
of water and the need for international cooperation in water-related sectors.105 Thus,
SD of water resources has become part of the international lexicon.
Numerous international conferences and seminars have taken place and to date many
forums, councils and organisations are working to find a possible way out to manage
the water sustainably. In an UN expert report, it is explained that water is
increasingly recognised as a finite and vulnerable resource and is likely to be the
major obstacle for development in many developing countries. 106 Inland water
101
United Nations, Guiding Note and IWRM Questionnaire Sent to Countries to Seek Information on
Implementation
of
IWRM/Water
Efficiency
(2002)
<http://www.un.org/esa/agenda21/natlinfo/countr/safrica/iwrm_questionnaire.pdf> .
102
‘Rio+20’ is the short name for the United Nations Conference on Sustainable Development, which
took place in Rio de Janeiro in 2012—20 years after the landmark 1992 Earth Summit. This summit is
also known as Rio 12.
103
Some of them are institutional framework of sustainable development, environment, water and
sanitation and climate change.
104
Earth Summit 2012, ‘The Future We Want: Rio+20 Outcome Document’ (18 May 2013)
<http://www.earthsummit2012.org/resources/useful-resources/1157-the-future-we-want-rio20outcome-document>
105
United Nations, Outcome of the United Nations Conference of Sustainable Development, UN Doc
A/CONF.216/L.1* (04 July 2012) 24.
106
This report was placed in the 5th Session of the Commission on Sustainable Development held on
7–25 April 1997 on the issue ‘Global change and sustainable development: critical trends’ (14 Feb
2013) <http://www.un. org/esa/documents/ecosoc/cn17/1997/ecn171997–3.htm>.
139
resources are considered political, developmental and welfare issues that require
protection and proper management. 107 These above mentioned initiatives confirm
that sustainable water resources development is now incorporated into many UN,
IGO and INGO declarations, which are considered international instruments.
I
Contribution of the World Water Council (WWC)
The WWC is a common umbrella organisation that received the mandate to develop
the World Water Vision for life and environment for the 21st century. 108 The
council’s mission is to promote awareness about the pressures on the Earth’s
freshwater resources and has considerable influence in international water politics. In
response to the world freshwater challenges, the council initiated the WWF as a
platform to include water issues on the international agenda. The WWF is the
triennial meeting until 2015 of the WWC, which has become the largest international
awareness-raising event exclusively focused on water and development.109 The main
outcomes of last three facilitative dialogue sessions organised by WWC are
discussed below.
The 4th WWF in Mexico 2006 reaffirmed commitments made at the Rio Conference,
WSSD and the Commission on SD during 2005, emphasising innovative practices
such as rain water management and development of hydropower projects in some
regions, the involvement of relevant stakeholders in planning and management and
improving demand for finance by strengthening governance systems. The 5th WWF
in Istanbul 2009 recognised water as a basic human need and agreed to respect
international law protecting water resources during conflicts. 110 In particular, the
forum agreed to take into account all stakeholders’ interests when addressing the
impact of global changes. They reaffirmed their commitment to respect international
law, providing protection for water resources and environment and to cooperate in its
further necessary development.
107
UN,
Lesson
Plans
on
Water
(14
<http://www.un.org/works/Lesson_Plans/.../Lesson_Plan_on_Water.doc> .
Feb
2013)
108
World Water Council, An International Multi-Stakeholder Platform for a Water Secure World (16
December 2012) <http://www.worldwatercouncil.org/about-us/vision-mission-strategy/> .
109
The WWF provides a platform for multi-stakeholder dialogue on critical water issues with a high
political representation.
110
Ministerial Declaration of the 5th WWF.
140
The 6th WWF in Marseille 2012 identified important themes and issues in the
management and utilisation of water resources and focused on finding solutions and
better implementing options for these solutions. The forum adopted the political
process called parliamentarians manifesto111 and a ministerial declaration reaffirmed
Chapter 18 of Agenda 21 of the Rio Declaration (1992) as the key to water peace
and stability in the context of SD (paragraph 2). In 2015, the 7th WWF will be held
in Daugu in the Republic of South Korea to follow-up on all the previous WWF
agendas and develop new visions to address emerging challenges 112 in the water
sector.
IV DEVELOPMENT OF INTERNATIONAL RULES AND RESOLUTIONS OF
TRANSBOUNDARY WATER RESOURCES
International laws play a pivotal role in the legal regime development of the
transboundary water resources. It provides the normative framework, the procedures
for coordinating behaviour, controlling conflict, facilitating cooperation and
establishing values among riparian states in maintaining relations with each other.113
However, the international law of transboundary water resources has been
particularly enriched through scholarly contributions.114 Substantial proof of this can
be found in the work of the Institut de Droit International (IIL), the ILA, the
International Association for Water Law (IAWL) and the Inter-American Bar
Association (IABA). This part discusses the contribution of different organisations to
the development of navigational and non-navigational uses of transboundary water
resources.
J
Contribution of the Institute of International Law (IIL)
The IIL115 adopts resolutions that purport to state existing rules of international law
and proposes such rules at times. The effort of the IIL between 1887–1979 relating
111
The Parliamentarians Manifesto was adopted at a meeting within the framework of the
Parliamentary Conference of the 6th WWF on 15–16 March 2012.
112
Such as providing good quality drinking water for everyone, sharing transboundary water between
the riparians and controlling non-point sources of pollution.
113
Joshep W Dillapenna and Joyeeta Gupta, ‘The Evolution of Global Water Law’ in Joshep W
Dillapenna and Joyeeta Gupta (eds), The Evaluation of the Law and Politics of Water (Springer, 2008)
10–11.
114
Such as: IIL, ILA, ILC, IAWL and IABA.
115
IIL is a non-official body established in 1873 and composed of some 120 elected members.
141
to use, navigation and other issues of transboundary waters extends to water
pollution and thus contributed to the development of the legal regimes of inland
water pollution law.116 The institute’s work has been relied upon on a number of
occasions by international tribunals and by states in cases of bilateral and diplomatic
exchanges.
6 Heidelberg Resolution on the International Regulation of River Navigation 1887
In 1887, the IIL adopted the Heidelberg Resolution on the International Regulation
of River Navigation as one of the oldest resolutions. 117 Some articles 118 of this
resolution later contributed to form some generally accepted principles in the area of
transboundary water resources management. Articles 21, 27 and 35 invite riparian
states to make mutual agreements to promulgate uniform policy regulations and
establish an integrated permanent commission composed of the delegates of each
riparian to oversee its purposes.119 The resolution holds that each riparian state shall
take necessary steps to maintain and improve the navigability of transboundary
watercourses within its territory (see Article 25). This regulation was totally focused
on the navigability of transboundary water resources.
7 International Regulation Regarding the Use of International Watercourses for
Purposes Other Than Navigation 1911
In 1911, the IIL took an important step in the development of international
watercourses law through the adoption of the Declaration of Madrid. 120 This
resolution is known as the International Regulation Regarding the Use of
International Watercourses for Purposes Other Than Navigation (1911) and
116
Abedin, above n 53, 165–166.
117
Kaeckenbeck, ‘International Rivers: A Monograph Based on Diplomatic Documents’ (London,
1920) 46, 58.
118
Article 1: The riparian states are obliged, in the general interest, to regulate, by common
agreement; Article 21: The riparian states shall agree among themselves upon a body of policy
regulations destined to regulate the use of transboundary water in the special interest; and Article 28:;
Each riparian state retains its sovereign rights over the transboundary water subject to its sovereignty,
within the limits laid down by this regulation and by the treaties and conventions.
119
‘Sources of International Water Law’ (Legislative Study No 65, Food and Agricultural
Organisation of the United Nations, 1998) 263.
120
The Declaration of Madrid (20 April 1911). See the Resolution of 1911 on ‘International
Resolutions Regarding the Use of International Watercourses’ in Annuaire de I’Institut de Droit
International, vol 24, Madrid sess (Paris, April 1911) 365.
142
recognised that riparian states have a shared responsibility to each other and put
some embargo 121 in relation to utilisation of transboundary water resources. It
prevented each riparian state, without the consent of other(s), from exercising any
unilateral or unreasonable action within their sovereign territory that adversely
affected the resource itself and other states.122 Moreover, the resolution recommends
that riparian states establish permanent joint commissions to render decisions and
conduct other necessary tasks as and whenever necessary to maintain the resource
sustainably and amicably.123 The resolution addresses non-navigational issues of the
utilisation of transboundary water resources.
8 Regulation Governing Navigation on International Rivers 1934
In 1934, the IIL adopted another Regulation Governing Navigation on International
Rivers.124 It defines the term international river broadly, declines any monopoly or
privilege and asks states to ensure equality of all riparian states in conformity with
international law. 125 It also states that mutual agreement should be reached,
whenever necessary, to formulate a uniform legal and technical regime for
navigation and to resolve monitoring issues, financial issues and peaceful settlement
of disputes that may arise from the different uses of the river. 126 The resolution
emphasises a common management view of transboundary water resources in
conformity with international law.
As part of its continuing work on the water resources issues, including water
pollution, IIL has adopted two resolutions concerning shared water resources. They
are the Salzburg Resolution on the Use of International Non-Maritime Waters
121
Such as all alterations injurious to the water, the emptying therein of injurious matter (from
factories, for exaple) is forbidden and no establishment (especially factories utilising hydraulic power)
may take so much water that the constitution, otherwise called the utilisable or essential character of
the stream shall, when it reaches the territory downstream, be seriously modified, see Declaration of
Madrid (20 April 1911) arts II(1)(2)(3).
122
Douglas Edgar Fisher, The Law of Governance of Water Resources the Challenge of Sustainability
(Edward Elgar, 2009) 115.
123
Madrid Declaration, above n 121, article II (7).
124
This resolution was adopted on 19 October 1934 in Paris.
125
Article 3 of Regulation Governing Navigation on International Rivers 1934.
126
Ibid article 10.
143
1961127 and the Resolution on the Pollution of Rivers and Lakes 1979.128 The 1961
resolution declares that a state has limited right129 to make use of shared waters since
it is limited by the right of use by the other riparian states. The resolution targets a
reasonable balance between the various interests in the utilisation of such
resources 130 for the common interest in a rational and equitable manner. 131 This
provision thus affirms the principle of equitable utilisation of water resources. The
resolution is also keeping pace with the recent developments to provide prior notice
of new uses and negotiations in the event of objections to such uses,132 and targets a
reasonable balance between the various interests in the utilisation of transboundary
water resources.133
The 1979 Athens Resolution declares that states must ‘ensure’ activities within their
borders shall not cause any pollution to the water of transboundary sources beyond
their boundaries.134 This obligation is, however, moderated in a subsequent article
that provides that it may be fulfilled by preventing new forms of pollution and
increases in existing levels of pollution and by abating existing pollution as soon as
practicable.135 The resolution also contains detailed provisions concerning forms of
cooperation between states sharing the same basin, such as exchange of data
concerning pollution, prior notification of potential polluting activities, consultation
concerning pollution problems and the establishment of international commissions
competent to deal with basin-wide pollution problem.
127
Annuaire de I’Institut de Droit International, vol 49-II, Salzburg sess, (Bassel, September 1961)
381.
128
Annuaire de I’Institut de Droit International, vol 58-I, Athens sess, (Bassel/Munich, September
1980) 197 (hereafter referred to as the 1979 resolution). This resolution was adopted by ILI on 12
September 1979 in Athens.
129
Fisher, above n 122, 118.
130
Ibrahim Kaya, Equitable Utilization: The Law of the Non-Navigational Uses of International
Watercourses (Ashgate, 2003) 17.
131
Fisher, above n 122, 115.
132
Stephen C McCaffrey, ‘Water, Politics, and International Law’ in Peter H Gleick (ed), Water in
Crisis A Guide to the World’s Fresh Water Resources (1993) 92, 98.
133
Kaya, above n 130, 137.
134
Article II of Resolution on the Pollution of Rivers and Lakes 1979.
135
Ibid art VII.
144
These two resolutions136 of the IIL together demonstrate that a designated body of
international legal authorities of high repute support a flexible approach to
international water problems, emphasising the need for regular communication and
the establishment of mechanisms within which experts from the countries concerned
can work together to anticipate and solve problems at a technical level. 137 This
resolution establishes principles of information exchange, cooperation, notification
and consultation as mandatory provisions prior to starting any potential polluting
activities over the transboundary water resources. 138 All these principles directly
contributed to protect inland water from pollution.
K Contribution of the International Law Association (ILA)
The ILA was founded in 1873. Compared with IIL the magnitude of the ILA is much
larger, consisting of around 1000 members. The work of the ILA has an important
and far-reaching effect, having addressed a wide range of issues in the development
of international watercourses law.139 The work of the ILA has significant influence
in the development of transboundary water resources law all over the world.140 The
ILA has made a notable contribution to the legal development of transboundary
water resources management through adopting some resolutions. Major initiatives
adopted by the ILA in the development of transboundary water resources
management legal regime are discussed in the following sections.
9
Base Rules of Law Concerning the Uses of International Rivers 1956 (Dubrovnik
Statement)
The ILA issued its first set of principles on transboundary water resources at the 47th
conference in Dubrovnik.141 The Dubrovnik Statement is a base rule that confirms
each state’s sovereign control over shared water resources within its own territory
(with due consideration for its impacts upon other riparian states) and rejects the
136
1961 and 1979 Resolution.
137
McCaffrey, above n 132, 98.
138
Deborah F Shmuelia and Uri Shamir, ‘Application of International Law of Water Quality to Recent
Middle East water Agreements’ (2001) 3 Water Policy 406–408.
139
Charles B Bourne, ‘The International Law Association’s Contribution to International Water
Resources Law’ (1996) 36 Natural Resources Journal 155, 156.
140
This influence is particularly apparent in the United Nations Convention on the Non-Navigational
Uses of International Watercourses (1997) 36 ILM 700.
141
Bourne, above n 139, 159.
145
principle of absolute territorial sovereignty and integrity.142 It recognises the riparian
state’s right of access to the shared water resources.143 As a general principle, this
resolution 144 accepts that each state has sovereign control over the transboundary
water resources within its own boundaries, but the state must exercise this control
with due consideration for its effects upon other riparian states.145 However, it does
not impose any prior notification obligation as a requirement for carrying out any
unilateral work on transboundary water resources.
10 Resolution on the Use of the Waters of International Rivers 1958
The ILA included some principles and recommendations by adopting the Resolution
on the Use of the Waters of International Rivers in 1958. 146 In this resolution,
members of the committee present at the conference reached unanimous agreement
to consider the following:
1. To treat the transboundary resource of water as an integrated whole not
piecemeal (this inspires implementation of the principle of common
management).
2. To ensure each co-riparian state is entitled to a reasonable and equitable share in
the beneficial uses of the transboundary waters147 (this encourages the principle
of equitable and reasonable utilisation).
3. To ensure the right to water and not to violate other legal rights of a co-riparian
state148 (this indicates the principle of state responsibility and equality of rights
of the riparian states).
142
Discussed in Chapter 3 IV C.
143
Salman M A Salman, ‘The United Nations Watercourses Convention Ten years Later: Why Has its
Entry into Force Proven Difficult?’ (2007) 32(1) Water International 15, 17.
144
Text in ILA Report of the Forty-Seventh Conference held in Dubrovnik, London (1956), 241–243
(1957).
145
Resolution III of Dubrovnik Statement of Principles.
146
Text in ILA Report of the Forty-Eighth Conference held in New York, 1–7 September 1958
London (1959), viii-x.
147
Agreed Principle 2 states ‘Except as otherwise provided by treaty or other instruments or custom
binding upon the parties, a reasonable and equitable share need to be determined in the light of all the
relevant factors in each particular case’.
148
Agreed Principle 4 states ‘The duty of a riparian state to respect the legal rights of a co-riparian
state includes the duty to prevent others, for whose acts it is responsible under international law, from
violating the legal rights of the other co-riparian states’.
146
The resolution introduced two new concepts149 that have directly influenced the law
of transboundary water resources, thus helping in the identification of the
international customary rules. It recommends that riparian states not perform any
unilateral acts or omissions that may adversely affect the legal rights of a co-riparian
state. The resolution has significant contribution to the adoption of some principles
in various international instruments relating to transboundary water resources
management.
11 Recommendations on the Procedures Concerning the Non-Navigational Uses
1960
This international instrument gives importance to peaceful settlement of differences
between co-riparian states regarding the use of transboundary water resources.150 In
the absence of an agreement among the stakeholder riparian states in relation to any
acts over the transboundary water resources, the instrument recommends prior
consultation. If consultation fails or no agreement is reached between the states, the
instrument advises concerned states to go to an arbitral tribunal. These
recommendations particularly contributed to developing the principle of peaceful
settlement of disputes in transboundary water resources.
12 Helsinki Rules on the Uses of the Waters of International Rivers 1966
The Helsinki Rules on the Uses of the Waters of International Rivers (1966) were
drafted and adopted by the ILA151 and are relatively important in the development of
international water law but do not hold any official status internationally. 152 This
document is widely known as Helsinki Rules and, over the time, it has broadly been
accepted as a basis for negotiation among riparian states over shared water. 153
Predominantly, these rules are about non-navigational uses of transboundary water,
even though some articles also address the navigational uses. The rules outline
149
One is integrated drainage basin and the other is doctrine of equitable utilisation.
150
The recommendations were adopted by ILA in Hamburg in August 1960.
151
The ILA significantly contributes to the development of transboundary watercourses law and
furthers the work of IIL.
152
Asit K Biswas, ‘Management of International Rivers: Opportunities and Constraints’ (1999) 15
Water Resources Development 429, 438.
153
G Eckstein, ‘Development of International Water Law and the UN Watercourse Convention’ in A
Turton and R Henwood (eds), Hydropolitics in the Developing World: A Southern African
Perspective. South Africa (African Water Issues Research Unit, 2002) 81–96.
147
principles related to the ‘equitable utilisation’ of shared watercourses and the
commitment not to cause ‘substantial injury’ to co-riparian states.154
The Helsinki Rules also defines the determining relevant factors to implement the
equitable sharing principles in utilising the waters of a transboundary water
resource. 155 All those principles have been incorporated into several international
agreements on water resources, which are likely to be used as guidelines in future
transboundary water resources for treaty-making.156 These rules have already been
used in the drafting of basic water resources agreements in different part of the
world. 157 The effort of ILA has always been regarded as inspirational for state
conduct and subsequent bilateral and regional treaties have adopted the guidelines
provided by the rules. These guidelines have played a significant role in the
development and codification of international water law.158
The inclusion of the term ‘without causing substantial injury’ demonstrates the
adoption of the doctrine ‘not to cause significant harm’. The rules include provisions
for controlling against pollution of an international water resources based on the
principle of equitable utilisation.159 The Helsinki Rules asks states to be consistent
with the principle of equitable utilisation of the waters and prevent the exaggeration
of existing or any new form of water pollution that would cause substantial injury at
the territory of a co-basin state. 160 Thus, any kind of human conduct that causes
water pollution is contradictory to the principle ‘not to cause significant harm’. In
addition, the rules adopted the consultation and notification principle and if any state
fails to do this, they shall not be given any priority in the event of determination of
reasonable and equitable share of the water of basin state. 161 Even prior to the
154
Aaron T Wolf, Atlas of International Freshwater Agreements (United Nations Environment
Programme, 2002) 4.
155
Article V(II) of the Helsinki Rules (1966).
156
Caponera, above n 6, 22.
157
Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, 5
April 1995 and India-Nepal treaty on Mahakali River, 1996.
158
Eckstein, above n 153, 83.
159
Helsinky Rules, above n 155, arts IX-XI.
160
Ibid X(1).
161
Ibid XXIX also asserts that the notice should include such essential facts as will permit the
recipient to make an assessment of the probable effect of the proposed alteration.
148
adoption into international water law, the ILC’s draft articles have significantly
influenced a number of international agreements and regional treaties. 162 In addition,
the ICJ has also referred to this convention in number of cases, which is strong
evidence that the convention is strengthening the modern development of
international law despite its status of not being in force.163
13 The Berlin Rules on Water Resources 2004
In 1997, the ILA agreed to revise the Helsinki Rules and the current state of the CIL
in relation to water resources for several reasons. 164 The ILA adopted the Berlin
Rules on Water Resources (2004) based on the report of the ILA International
Committee on Water Resources Law. This is a comprehensive set of revised rules
that incorporates most important aspects of the management, conservation and
utilisation of international water resources.
This ILA work contributes another noteworthy episode to the development of the
law of transboundary watercourses.165 One of the important aspects of these rules is
that they not only concern international watercourses but also consider water
resources in general. The rules recommend 166 that states manage surfacewaters,
groundwater and other sources of water in a unified and comprehensive manner.167
The rules require that states appropriately integrate the management of waters with
the management of other resources and shall take all applicable measures to prevent
or minimise environmental harm.168 It affirms the basin states’ right to participate in
the management of waters of international drainage basins in an equitable,
reasonable and sustainable manner.169 The rules acknowledge that each basin state is
162
The Mekong River basin agreement (1995); the Mahakali River treaty (1996).
163
Abu Raihan M Khalid, ‘The Interlinking of Rivers Project in India and International Water Law:
An Overview’ (2004) 3 Chinese Journal of International Law 553,570.
164
First, none of the most disputed transboundary waters are covered by an agreement among all the
interested States. Second, the ratification process of the UN Watercourse Convention has been slow.
165
Muhammad Mizanur Rahman and Olli Varis, ‘Integrated Water Resources Management:
Evolution, Prospects and Future Challenges’ (2005) 1(1) Sustainability: Science, Practice, & Policy
15, 18.
166
Article 5 of the Berlin Rules, 2004.
167
Nahid Islam, The Law of Non-Navigational Uses of International Watercourses: Options for
Regional Regime-Building in Asia (Kluwer Law International, 2010) 193.
168
Berlin Rules, above n 166, arts 6, 8.
169
Ibid arts 10, 13.
149
entitled to prior notice, consultation and negotiation where the proposed programme,
plan, project or activity may significantly affect its right of interest. 170 The Berlin
Rules are not only grounded in existing watercourses law, but also reflect the future
direction in which it is heading.171
The principle of equitable utilisation172 has also been recognised as an established
principle of CIL in all contemporary noteworthy codifications of this area. 173 The
principle has recently been vigorously confirmed by the ILA with the adoption of the
Berlin Rules (2004) on water resources law.174 Rules on international watercourses
affirm that states’ natural resource related activities within their territories should not
have a transboundary effect that violates the right of other states. 175 The Berlin
Rules 176 of the ILA affirm that management of transboundary water resources
requires cooperation between the riparian states. In addition to that:
Basin states have the right to participate in the management of waters of an international
drainage basin in an equitable, reasonable, and sustainable manner.177
Basin states shall in their respective territories manage the waters of an international
drainage basin in an equitable and reasonable manner having due regard for the obligation
not to cause significant harm to other basin states. 178
The Water Resources Committee of the ILA developed the Berlin Rules179 through a
series of extensive meeting during 1997–2004. 180 Most of these rules are firmly
170
Ibid arts 57–60.
171
Joseph W Dillapenna and Joyeeta Gupta, ‘The Evolution of Global Water Law’ in Joseph W
Dillapenna and Joyeeta Gupta (eds), The Evaluation of the Law and Politics of Water (Springer, 2008)
13.
172
Discussed in Chapter 4 III.
173
IIL Salzburg Resolution (1961), ILA Helsinki Rules (1966), United Nations Environment
Programme’s Principles on Shared Natural Resources (1978).
174
Owen McIntyre, ‘International Water Law: Concepts, Evolution and Development’ in Anton Earle,
Anders Jägerskog and Joakim Őjendal (eds), Trans-boundary Water Management Principles and
Practice (Earthscan, 2010) 59, 66.
175
Günther Handl, ‘Transboundary Impacts’ in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds),
The Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 532.
176
ILA, Berlin Rules on Water Resources, arts 10–16 deal with international shared waters.
177
Ibid art 10(1).
178
Ibid art 12(1).
179
The Berlin Rules on Water Resources were approved at the ILA’s conference held in Berlin on 21
August 2004.
150
based in generally recognised CIL and applicable to all waters other than marine
waters, regardless of whether the water is transboundary in nature or any other
source of inland water. Many of the rules have been confirmed by judgements of the
international or national tribunals. The Berlin Rules obliges each riparian state in
transboundary watercourses to manage water in an equitable and reasonable
manner.181 It should be noted that these rules can only be implemented if the UN
adopts them in a convention and/or the ICJ uses the rules as ruling and or a
transboundary water share agreement is adopted somewhere in the world.182
The demand for water grows exponentially but the supply essentially is constant or
even declining. Disputes among neighbouring water users internationally and
different stakeholders nationally are proliferate, while the need to protect the
environment has become critical. In addition, global climate change could worsen
the situation dramatically. Therefore, states sharing transboundary waters must agree
to follow some principle for cooperative management of the resource and try to
resolve the disputes peacefully.
L Contribution of the Inter-American Bar Association (IABA)
IABA183 is another important body that has contributed a great deal to establishing
the principle of equality in riparian states’ rights, non-recognition of unilateral action
and the principle not to cause significant harm as part of existing international law.184
Some general principles are applicable to a system of international waters through its
Declaration of Buenos Aires (19 November 1957). In this conference, the following
general principles were established:
1) Every state having under its jurisdiction a part of a system of international waters, has the
right to make use of the waters thereof insofar as such use does not affect adversely the equal
180
‘Berlin Conference (2004) Water Resources Law’ (Report No 4, International Law Association,
2004) 4.
181
Salman M A Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules:
Perspectives on International Water Law’ (2007) 23(4) Water Resources Development 625, 636.
182
Rahaman, above n 29, 221.
183
The Inter-American Bar Association (IABA) was founded on May 16, 1940 by a group of
distinguished lawyers and jurist representing forty-four professional organisations and seventeen
nations of the western hemisphere. IABA is a permanent forum for the exchange of professional
views and information for lawyers to promote the rule of law.
184
IABA, ‘Proceedings in the Tenth Conference’ (Inter American Bar Association, 1958) 246–248.
151
right of the states having under their jurisdiction other parts of the system. 2) States having a
duty, in the application of the principle of equality of rights, to recognise the right of the
other states having jurisdiction over a part of the system to share the benefits of the system
taking as the basis the right of each state to the maintenance of the status of its existing
beneficial uses and to enjoy, according to the relative needs of the respective states, the
benefits of future developments. In cases where agreement cannot be reached the states
should submit their differences to an international court or an arbitral commission. 3) States
having a duty to refrain from making changes in the existing regime that might affect
adversely the advantageous use by one or more other states having a part of the system under
their jurisdiction except in accordance with: (i) an agreement with the state or states affected
or (ii) a decision of an international court or arbitral commission and 4) The foregoing
principles do not alter the norm of international law that if the territory over which flow the
waters of an international system is of such a nature as to provide a particular benefit, that
benefit may be enjoyed exclusively by the state having jurisdiction over that territory, it
being understood that such enjoyment will be in conformity with principle 3. 185
M The Work of the International Association for Water Law (IAWL)
The aim of the IAWL is to promote the progress of national water legislation and
administration. Since the creation, the organisation has held three important global
conferences on water law and administration. In the recommendations of the second
conference,186 the association suggests the elaboration of norms pertaining to the use
of transboundary water resources. It also recommended giving special attention to
the environment in relation to the utilisation of water resources. It invited riparian
states to establish mechanisms for cooperation by following the principle of nondiscrimination, cooperation and exchanging relevant information. Recommendations
of IAWL contributed to the establishment of the principles of common
management187 in the development of transboundary water resources management.
N The Work of the Asian-African Legal Consultative Committee
Formerly the Asian-African Legal Consultative Committee, the Asian-African Legal
Consultative Organisation has undertaken the study of the legal aspects of water
185
Text in Inter-American Bar Association, Proceedings of the Tenth Conference, Buenos Aires 14–21
November 1957 (Buenos Aires 1958), Vol. I, 246–248.
186
Second global conference on water law and administration was held at Caracas, Venezuela from 8
to 14 February 1976.
187
Discussed in Chapter 5 II A 5.
152
resources. This body has produced a set of very relevant ‘propositions’ 188 that were
inspired by the Helsinki Rules of the ILA. The propositions affirm that the
reasonable and equitable share is to be determined on the basis of all the relevant
factors in each particular case.189
Various scholarly institutions’ works reflect the seriousness of the issue concerning
the management and utilisation of transboundary water resources. These INGO
reports and expert opinions often demonstrate state practices of exploitation in the
utilisation of transboundary water resources. Recommendations are made for
redressing the issue through integrated planning for the sustainable management of
transboundary water resources within and between riparian states.
190
INGO
initiatives and different soft law instruments have significantly contributed to the
development of transboundary water resources law.191 International rules, regulations
and conventions are not adequate to resolve world water conflicts between riparian
states,192 because of the presence of different contradictory theories and the absence
of any globally endorsed legal instruments. International law instruments are still
changing, constantly expanding and consolidating. Recently, they have included a
broad range of issues comprising quality and quantity of water, right of access to
water, information exchange and environment protection. They are focusing on a
comprehensive, sustainable approach to managing water resources, implementing
IWRM, instigating AWM and planning within and between riparian states as the
central point of attraction.193
Through the preceding discussion, the following reasons for the failure of
international watercourses law to address the ongoing problems relating to
transboundary water resources management were found:194
188
These propositions were formulated in New Delhi on 18 January 1973. See Asian-African Legal
Consultative Committee, Report on the 14th Session, New Delhi (10–18 January, 1973) 7–14.
189
Caponera, above n 3, 201.
190
Abedin, above n 53, 165.
191
Zodrow, above n 69, 38.
192
Philippe Cullet, ‘Water Law in Globalised World- The Need for a Conceptual Framework’ (2011)
23(2) Journal of Environmental Law 233, 240; Subedi, above n 25, 17.
193
Correia and Silva, above n 75, 90.
194
Owen McIntyre, Environmental Protection of International Watercourses Under International Law
(Ashgate, 2007) 12.
153
1. Traditional international water resources law did not comprehensively address all
relevant issues in one instrument.
2. Characteristic variations and geographical location make it difficult to address all
issues in a single regulatory instrument to satisfy all states.
3. Water is considered an essential resource for life and economic growth and states
are reluctant not to compromise on their national interest.
4. There is a use of conflicting theoretical approaches to justify respective rights of
co-riparian states.
The slow evolution that made international water law move beyond navigational
issues to non-navigational aspects of transboundary waters needs to be quickly
supplemented through a paradigm change. International water law needs to grow
beyond its concerns for transboundary waters. Indeed, unless international water law
is able to address the most basic challenges,195 it will lose its relevance in years to
come.196 The need is not only for international water law to address water specific
issues but also to address the cross-sectoral aspects of water law.
V SIGNIFICANCE OF SOFT LAW IN TERMS OF CONTROLLING INLAND WATER
POLLUTION
Soft law consists of principles adopted or recommended by international
organisations whether governmental such as the UN and Food and Agriculture
Organisation (FAO) or not. By nature, soft law is not a binding instrument, but by
practise, government cannot ignore this class of law.197 Soft law is often defined as
law in the process of making and nascent, incipient or potential law. It may be in the
form of a declaration, a resolution or a statement of principles, which is morally if
not legally binding. 198 Soft law can also be produced by INGOs 199 with high
academic prestige but the degree of acceptance depends on the reputation of these
organisations. The Helsinki Rules on international rivers drawn up by the ILA have
195
Such as access to sufficient clean water for everyone and other issues in associated with water.
196
Philippe Cullet, Water Law, Poverty and Development Water Sector Reforms in India (Oxford
University Press, 2009) 216.
197
According to Alexander Kiss, a prestigious specialist in this area of law.
198
Foo Kim Boon, ‘The Rio Declaration and its Influence on International Environmental Law’
(1992) Singapore Journal of Legal Studies 347, 350–51.
199
For example, the IIL, ILA or the IWRA.
154
been adopted by the members of different regional organisations and by some
governments all around the world. 200 The UN 201 and FAO 202 have published
compilations of treaties, legal texts, declarations and jurisprudence about the legal
status of transboundary water resources and established a clear distinction between
international conventions of general applications, those with a regional character and
bi or multilateral agreements. The latter two have contributed to define generally
accepted principles. Thus, it is generally understood that soft law creates and
delineates goals to be achieved in the future rather than actual duties, programmes
rather than prescriptions, guidelines rather than strict obligations.203
In the absence of any globally accepted mandatory regulatory framework, soft law
provides the normative framework and the procedure for coordinating behaviour,
controlling conflict, facilitating cooperation and establishing values among states to
maintain relations with each other.204 However, practical applications of these laws
are weak,205 because no mandatory provisions and inconsistent theories. They also
provide little guidance in relation to transboundary water management.206
In order to incorporate all social, political, environmental and economic
characteristics, an international watercourse should be managed based on hydrogeographical boundaries and thus not only on administrative and political
boundaries. 207 Some principles 208 are widely accepted worldwide by international
conventions, agreements and treaties. These internationally accepted principles
200
Cano, above n 10, 167.
201
Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers for
Other Purposes than Navigation, Sales No. 63.V.4, UN, New York 1963.
202
Legislative Study No. 15, 23, 65, FAO Publications, respectively in 1978, 1980, 1998.
203
Pierre-Marie Dupuy, ‘Soft Law and the International Law of the Environment’ (1991) 12 Michigan
Journal of International Law 420, 428.
204
Dillapenna and Gupta, above n 171, 10–11.
205
Thomas Bernauer, ‘Explaining Success and Failure in International River Management’ (2002) 64
Aquatic Science 1.
206
Aaron T Wolf, ‘International Water Conflict Resolution: Lessons from Comparative Analysis’
(1997) 13 Water Resources Development 333.
207
Muhammad Mizanur Rahaman and Olli Varis, ‘Integrated Water Resource Management:
Evolution, Prospects and Future Challenges’ (2005) 1 Sustainability: Science, Practice and Policy 15,
16.
208
Equitable and reasonable utilisation, obligation not to cause significant harm, prior notification and
cooperation and peaceful settlement of disputes.
155
formed the basis of the Helsinki Rules (1966), UNWC (1997) and Berlin Rules (2004)
and other recent initiatives in this arena. At a national level, these principles and
other water management benchmarks 209 could provide a framework for further
cooperation between the stakeholders for creating effective inland water resources
management and, hence, promoting SD and preventing inland water pollution. The
significance of soft law is that it may potentially become hard law in the near or
distant future.
VI GLOBAL CONVENTION OF UNIVERSAL APPLICATION TO MANAGE
TRANSBOUNDARY WATER
From a global point of view, the Mannheim Convention on the Rhine among
Belgium, France, Germany and the Netherlands (1868) is one of the major
multilateral
treaties
related
to
water.
210
This
convention
adopted
the
recommendations of the Congress of Vienna (1815) and the key principles of this
convention were the obligation of the member states to maintain the Rhine River
waterway as navigable. Some other treaties 211 not in universal terms but with
reference to specific waterways are affirming freedom of navigation. Most of the
early treaties and conventions, however, dealt with navigational uses of
transboundary watercourses.212 Increased demands for water subsequently propelled
innovation in the law that is applicable to the non-navigational uses of water, water
quality management and allocation of water.213 It is important to analyse treaty law
to find out to what extent principles related to transboundary water resources are
incorporated in these legal instruments.
O International Convention of Universal Application
The first General Conference on Freedom of Communication and Transit was held in
Barcelona in 1921. 214 The conference adopted the Convention and Statute on the
209
Discussed in Chapter 4 II.
210
D Hughes, Environmental Law (Butterworths, 2nd ed, 1992) 84.
211
Treaty of Paris for the River Danube (1856), Treaty of Berlin for the Rivers Niger and Congo
(1885), Treaty of Versailles for the Rivers Elbe, Oder, Niemen (1919).
212
Rahaman, above n 29, 213.
213
Biswas, above n 152, 437.
214
The initiative was taken by the League of Nations and involved more than 41 member states in the
establishment of cooperation among states without in any way influencing their rights of sovereignty.
156
Regime of Navigable Waterways of International Concern (1921) (Barcelona
Convention). This is considered a significant initiative in the development of
transboundary watercourses legal regimes. This convention restricts unilateral
management approaches on transboundary waterways and follows the principle of
not to cause any harm to other states.215 Further, it encourages and builds confidence
among the riparian states to place their argument and inform their intentions
regarding the shared water. The general principles and the outcomes articulated in
the convention made significant contribution to the development of transboundary
water resources law.
P International Convention of Regional Application
There is a long tradition of conflict, cooperation and dependency on transboundary
water resources in most of the European states. The United Nations Economic
Commission for Europe (UNECE) developed a legal framework for transboundary
water resources and member states and consultative institutions agreed to implement
the United Nations Convention on the Protection and Use of Transboundary
Watercourses and International Lakes (UNECEWC) in 1992 with a view to
strengthen national measures for the protection and ecologically sound management
of transboundary surface and groundwater.216
The UNECEWC obliges parties to prevent, control and reduce water pollution from
point and non-point sources. The convention includes monitoring, research and
development and consultations provisions. Further, it embraces warning and alarm
systems, mutual assistance and exchange of information between all riparians, as
well as public access to information. It urges the use of transboundary water
resources in an ecologically sound and rational manner with the aims of resource
conservation and environmental protection.217 The convention declares sustainability
215
Article 10 of Barcelona Convention.
216
United Nations Convention on the Protection and Use of Transboundary Watercourses and
International Lakes UN Doc ENWA/R.53 (17 March 1992) was adopted in 1992 and entered into
force in 1996. Initially negotiated as a regional instrument, but the members adopted amendments to
make the application of the convention universal and open for non-members states on 28 November
2003. The amendments entered into force on 6 February 2013, turning the convention into a global
legal framework for transboundary water cooperation. It is expected that non-ECE countries will be
able to join the convention as of the end of 2013.
217
Ibid art 2(2)(b). To ensure that transboundary waters are used with the aim of ecologically sound
and rational water management, conservation of water resources and environmental protection.
157
as is its goal and adopts both the precautionary and the polluter-pays principles to
protect transboundary water from pollution. 218 With few other objectives, the
convention specifically emphasises that any disputes about the interpretation or
application of the convention should be settled by negotiations or any other amicable
settlement. It further states that, after signing, ratifying, accepting, approving or
acceding the convention, parties may agree in writing to settle a dispute as
compulsory by a) submission to the ICJ or b) arbitration in accordance with the
procedure set out in Annex IV.219
Q United Nations Convention on Non-Navigational Uses of International
Watercourses (1997)
In 1970, the UNGA commissioned the ILC220 to draft a set of articles to govern nonnavigational uses of transboundary waters with a view to the progressive
development of international law and its codification.221 The UNGA forwarded the
work of IIL and ILA to the ILC to study the international watercourses issue with
specific attention to its progressive development and codification.222 After 21 years
of extensive work, the ILC prepared the draft text of the UNWC (1997) in 1991.223
After considerable discussion during 1991–1997 on the draft text, the UNWC was
finally adopted224 by the UNGA on May 21, 1997.225
218
Ibid arts 2(5)(a), (c).
219
Ibid art 22.
220
The General Assembly appointed ILC as a permanent subsidiary organ with the task of
encouraging the progressive development and codification of international law. Res 174(II), UN
GAOR (21 November 1947).
221
Progressive Development and Codification of the Rules of International Law Relating to
International Watercourses, Res 2669(XXV), UN GAOR (8 December 1970).
222
Stephen C McCaffrey, ‘The International Law Commission adopts Draft Articles on International
Watercourses’ (1995) 89 American Journal of International Law 395, 404.
223
Biswas, above n 152, 438.
224
The convention was adopted by Resolution 51/229 of the General Assembly. The UNGA called for
a vote on the resolution adopting the UN Watercourses Convention and was adopted by a vote of 103
for, and to three against (Burundi, China, Turkey), with 27 abstentions(Andorra, Argentina,
Azerbaijan, Belgium, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana,
Guatemala, India, Israel, Mali, Monaco, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda,
Spain, Tanzania and Uzbekistan) out of 135 states that were present during adoption.
225
The convention is not yet in force, because the required ratifications number for its entry into force
has not been reached.
158
The preamble of this convention highlighted the need to manage international
watercourses by promoting the rational and optimal utilisation of the watercourses.
Article 2(a) of the convention defines the term ‘watercourse’ as ‘a system of
surfacewaters and groundwater constituting by virtue of their physical relationship a
unitary whole and normally flowing into a common terminus’. This definition calls
the attention of states to the interrelationship between all parts of the system of
surface and underground waters that make up an international watercourse.226 The
convention adopts the principle of equitable and reasonable utilisation, approves the
principle of the obligation not to cause significant harm and promotes prior
consultation in a spirit of cooperation.227 However, it is hard to define these factors
precisely as they are broad and general and can be interpreted in a variety of
different ways.228
The basic principles for collaboration and building the transboundary water
governance regime are outlined in the draft UNWC. Even though this UN convention
is not ratified, 229 the principles 230 are regarded as CIL. The convention has
incorporated some fundamental principles developed by IGOs, INGOs and
international judicial bodies regarding the utilisation of transboundary water
resources. 231 Riparian states are guided by those principles in their quest for
governance frameworks.232 The approval of the UNWC (1997) came at a time when
water resources management, whether at the national or international level, started
facing major challenges, resulting largely from the unprecedented population growth,
226
Stephen McCaffrey, ‘The UN Convention on the Law of the Non-Navigational Uses of
International Watercourses: Prospects and Pitfalls’ in Aaron T Wolf (ed), Conflict Prevention and
Resolution in Water Systems (Edgar Elgar, 2002) 586, 587.
227
United Nations Convention on Non-Navigational Uses of International Watercourses (1997) arts
5–7.
228
Biswas, above n 152, 439.
229
United Nations Convention on Non-Navigational Uses of International Watercourses (1997),
above n 227, art 36. Ratification, approval, acceptance or accession to 35 documents is necessary to
bring the convention into force. This has not been achieved yet.
230
The principles are: a) equity in utilisation, b) the obligation to cooperate, not to cause harm, c)
holding of consultations on planned measures, to be notified to all riparians and importantly d) the
obligation to undertake pollution control and ecosystem protection.
231
Khalid, above n 163, 562.
232
Jakob Granit, ‘Identifying Business Models for Trans-boundary River Basin Institutions’ in Anton
Earle, Anders Jägerskog and Joakim Őjendal (eds), Trans-boundary Water Management Principles
and Practice (Earthscan, 2010) 143, 147.
159
environmental degradation, urbanisation and industrialisation. Those challenges led
to the sharpening of the competing demands of riparian states and to an increasing
attention to water resources worldwide.
The UNWC is a framework convention that addresses basic substantive and
procedural matters and leaves the details to the watercourse states themselves to
negotiate and agree upon. The convention calls for cooperation on the basis of
sovereign quality, territorial integrity and mutual benefit in order to attain optimal
utilisation of the international watercourse. 233 The basic principle the UNWC
proposes for using international watercourses is equitable and reasonable use of
water.234 Therefore, the basis for international watercourse use is agreement between
concerned states concerning their respective needs. 235 The factors that make up
equitable and reasonable use include natural factors, 236 socioeconomic factors and
the population dependent on the watercourse in each riparian states. However, the
convention does not prioritise among the factors and is not capable of a precise
definition of equitable and reasonable use. 237 Under the convention, equitable and
reasonable use is balanced with the principle of non-significant harm. In fact, the
convention is a package deal that balances equitable utilisation favoured by upperriparian and the no harm principle favoured by downstream riparians states.238
The establishment of the GWP and the WWC in 1996 and the convening by the
WWC of the six WWFs between 1997 and 2012 (in Marrakech, the Hague, Kyoto,
Mexico City, Istanbul and Marseille respectively), are clear indications of this global
attention. Those forums underscored, among other things, the fact that international
water can be a catalyst for cooperation as well as a cause for conflict and emphasised
the pressing need for collaborative action that the convention epitomises. In addition,
the convention has received the endorsements of the WWC, the World Commission
233
Salman M A Salman, ‘The United Nations Watercourses Convention Ten Years Later: Why Has Its
Entry Force Proven Difficult?’ (2006) 32(1) Water International 1, 14.
234
United Nations Convention on Non-Navigational Uses of International Watercourses (1997),
above n 227, art 5.
235
Cullet, above n 196, 23.
236
Such as geographical, hydrological, climate and ecological aspects.
237
P W Birnie and Alan E Boyle, International Law and the Environment (Oxford University Press,
2nd ed, 2002) 303.
238
Fitzmaurice and Loibl, above n 56, 26.
160
on Water for the 21st Century, the World Commission on Dams and more
importantly, the ICJ.239
Despite the irreplaceable role of water in lives, livelihoods and production, there is
no universal treaty in force to regulate the use and protection of shared water. The
absence of this kind of universal treaty has not precluded cooperation between
sovereign states, nor does it imply that the principles are not broadly accepted, but
clearly most states are not ready to commit themselves to a binding legal
obligation.240 Neither the UNWC (1997) nor any other international instruments offer
a take away formula to resolve the outstanding issues in order to share transboundary
water. However, a satisfactory resolution of the problem could be found by relying
on the existing and evolving principles of international environmental law in general
and international watercourses law in particular. Indeed, the Berlin Rules (2004),241
which include the expanded and revised versions of the Helsinki Rules (1966),
represent the most comprehensive set of rules on the use of transboundary
watercourses.242
R Impact of International Conventions
International conventions are the most commonly used or acceptable procedure for
creating rules of conduct between states where international water resources are
concerned. International agreements, irrespective of the name243 by which they are
known, usually come into effect by signing or ratifying by the contracting parties.
However, a fundamental distinction always remains between general conventions of
universal or of regional application and particular conventions of bilateral or
239
Salman, above n 233, 13.
240
David Grey, Claudia Sadoff and Genevieve Connors, ‘Effective Cooperation on Trans-Boundary
Waters: A Practical Perspective’ in Anders Jägerskog, Mark Zeitoun (eds), Getting Transboundary
Water Right: Theory and Practice for Effective Cooperation (Stockholm International Water Institute,
2009) 15.
241
The Berlin Rules 2004, adopted by the ILA, contain a helpful set of principles and rules for those
who are willing to enter into a cooperation mechanism for the conservation, development and
utilisation of shared watercourses.
242
Surya P Subedi, ‘Conclusions and Recommendations’ in Surya P Subedi (ed), International
Watercourses Law for the 21st Century The Case of the River Ganges Basin (Ashgate Publishing,
2005) 247, 249.
243
Convention, pact, charter, protocol and exchange of notes.
161
multilateral scope.244 One of the general conventions of the universal type that codify
rules of conduct where international water resources are concerned is the Barcelona
Convention (1921).245 Another convention concerning international water resources
is the convention relating to the development of the hydraulic power affecting more
than one state and protocol of signature (Geneva, 9 December 1923).246 Other than
these two universal conventions, there are number of regional agreements or
multilateral conventions designed to be applied within a territorial area, usually on a
continent basis, such as Asia, Africa, Europe and Latin America. A multilateral
agreement applies in the sphere of international watercourses divided into different
categories.247 However, nowadays most agreements concerning international water
resources are bilateral with an extreme variety.248
The PCIJ delivered very well-known judicial decision concerning the nonnavigational uses of international watercourses in the River Oder Case in 1929. This
case dealt with the jurisdiction of the international commission of the river,
specifically, and navigational rights, more generally. However, the decision
introduced an important new doctrine, ‘community of interest’, relevant for the nonnavigational uses of the transboundary water resources. Together with the doctrine of
limited sovereignty and the doctrine of community of interest, it motivated the
development of the basic principles of international watercourses law.249 Since the
244
Caponera, above n 6, 10.
245
Forty-two states were represented at the Barcelona Conference across the globe and an
International Convention of Universal Application came into force on 31 October 1922.
246
Thirty-nine states were represented at the Geneva Conference from all over the world and an
International Convention of Universal Application came into force on 30 June 1925.
247
1) Agreements relating to the general development and to specific utilisation of an international
water resource (river, basin, aquifer); 2) agreements resulting from cooperation between states within
the framework of institutions established for the purpose of utilising international water resources; 3)
agreements concerning technical and financial assistance between donors, on the one side (States or
international organizations and institutions) and co-basin states on the other, for the development of
international water resources.
248
1) Agreements for the integrated management of an international basin or water resource; 2)
agreements for the control of the harmful effects of water (flooding, erosion, salination) of an
international basin or water resource; 3) agreements for the control of water quality
(pollution/contamination control) and environmental protection of international waters; 4) agreements
for a specific use (navigation, irrigation, hydro-electric generation) or for the study of potential uses
and development of an international basin or water resource.
249
The principles of equitable and reasonable utilisation and the no-harm rule, incorporated in arts 5–
7 of the United Nations Convention on the Non-Navigational Uses of International Watercourses
(1997) 36 ILM 700.
162
River Oder Case, the doctrine has been widely acknowledged and applied in
international judicial and arbitral decisions and, particularly in Gabčíkovo v
Nagymaros, it extends also to non-navigational uses. One of the most well-known
decisions expressly dealing with non-navigational uses of international watercourses
is the 1957 arbitral decision in the Lake Lanoux Case.250 The tribunal recognised the
principle of limited territorial sovereignty of riparian states with respect to the use
and protection of shared waters. The tribunal states that there is a principle that
prohibits the upstream state from altering the water of a transboundary river in such a
fashion as seriously to prejudice the downstream state. 251 This doctrine was first
endorsed by the ICJ in the Corfu Channel Case in 1949.252 In the judgement, the ICJ
applied the general and well recognised principle expressed in the maxim sic utere
tuo ut alienum non-leadas, which means a state must not allow its territory to be
used for acts contrary to the rights of other states.253 Though the UNWC has not yet
gathered the required ratifications for its entry into force, some of its provisions254
are considered to have acquired the status of customary law.255 As for the ICJ, the
most notable cases concerning the non-navigational uses of international
watercourses include: the Gabčίkovo-Nagymaros Case between Hungary v Slovakia,
decided in 1997; the Pulp Mills Case between Uruguay v Argentina, decided in 2010,
and most recent, that concerning certain activities carried out by Nicaragua in the
border area between Costa Rica v Nicaragua, decided in 2013.
The legal status of international water resources and their utilisation require
consolidated treatment encompassing the control of harmful effects and of polluting
activities. When dealing with the water resources law, some systematic outline256
250
Gabčíkovo v Nagymaros Project (Hungary v Slovakia) (Judgement) [1997] ICJ Rep Lake Lanoux
Arbitation Case (Spain v France), Arbitral Tribunal (16 November 1957); the English version of the
award can be found at 24 ILR 101 (1957).
251
Lake Lanoux Arbitation Case (Spain v France) (1957) 24 International Law Reports 101, para 13.
252
United Kingdom of Great Britain and Northern Ireland v Albania, which did not concern
freshwater but rather maritime environment.
253
ICJ Reports 1949, at 22.
254
Such as the principle of reasonable and equitable utilisation.
255
ICJ confirmed it in the judgement of the Gabčíkovo v Nagymaros Case.
256
(1) Beneficial uses, including domestic, municipal, agricultural, industrial and recreational uses; (2)
harmful effects, including floods, soil erosion and siltation, drainage and sewerage and salination; and
(3) water use, quality and pollution control, including the waste and misuse of water, recycling and reuse.
163
needs to be considered. 257 Nevertheless, general principles and comprehensive
framework rules would certainly expedite the subsequent regulation of each
beneficial use, harmful effect and pollution control activity. Two categories of rules
of international law are required for the rational management 258 of international
water resources: one general rule governing the legal status of international water
resources is ensuring their equitable utilisation in the light of quantitative and
qualitative requirements and the other special rule governing each particular use,
harmful effects and pollution control activities in such a way that these special rules
can be adapted to individual situations.259
VII FUTURE INITIATIVES FOR SHARING TRANSBOUNDARY WATER
Water energises all sectors of society from basic food production to advanced
industrial technologies, and growing demands from many fronts place the water
sources under increased strain. Limited access to water can constrain development,
particularly with population growth and prevailing economic conditions converging
to add pressure on limited water resources. Growing demands for goods, services
and economic growth are increasing the pressure and competition for water
resources at the regional, national and local levels. In regions where water is shared,
transboundary water issues become even more critical to development. 260 Thus,
getting transboundary water resources managed adequately is not only important but
urgent to secure the livelihoods 261 of people and sustain the resources across the
globe. 262 The international water community has responded to the mounting
257
Dante A Caponera, ‘Outline for the Preparation of a National Water Resources Law Inventory’
(Background Paper No.7 FAO, Rome, 1975).
258
I.e., integrated conservation, development and utilisation.
259
Caponera, above n 6, 15.
260
Jakob Granit and Marius Claassen, ‘A Path Towards Realising Tangible Benefits in Transboundary River Basins’ in Anders Jägerskog, Mark Zeitoun (eds), Getting Transboundary Water
Right: Theory and Practice for Effective Cooperation (Stockholm International Water Institute, 2009)
22.
261
A livelihood comprises the capabilities, assets and activities required for a means of living. A
livelihood is sustainable when it maintain or enhance its capabilities and assets both now and future,
while not undermining the natural resource base. Department for International Development (undated)
<www.livelihoods.org>.
262
Anders Jägerskog, Mark Zeitoun, and Anders Berntell, ‘Addressing Trans-boundary Water
Management Challenges: Getting it Right’ in Anders Jägerskog, Mark Zeitoun (eds), Getting
Transboundary Water Right: Theory and Practice for Effective Cooperation (Stockholm International
Water Institute, 2009) 5.
164
challenges and pressure placed on shared waters. However, not all steps currently
being taken are moving us forward. The push for ‘hydro sovereignty’ at the 5th
WWF263 appears to be a reversion to the discredited Harmon Doctrine that had been
abandoned over a century ago. Resistance by the powerful riparian states to establish
legal and fair water-sharing principles reminds us that not all hegemons are leaders.
This makes the role of third parties all the more crucial. The international water
community can take responsibility to recognise and confront the reality of power
asymmetry, basin bullies and coercion in order to achieve effective cooperation.264
The scarcities of inland water are not speculative in nature or a probability that can
affect the distant future; they already exist and are distressing a large number of
people. Water shortage is an everyday reality for many regions of the world.
According to a former WWC President, ‘the time of easy water is definitely behind
us’.265 Thus, the countries that share transboundary water sources need to cooperate
and jointly explore opportunities to maximise SD. The ways transboundary water
resources are being managed in international law face several problems. First, the
threshold of transboundary ‘harm’ is still uncertain and that may undermine the
transboundary impact.266 Second, the state obligation to take adequate measures to
prevent transboundary harm can also be questionable; even some low-level risk of
significant transboundary harm may not raise an obligation of prevention.267 Third,
there is no universal compulsory jurisdiction to deal with transboundary disputes.268
In the above circumstances, the following emerging approaches can be helpful for
riparian states to capitalise maximum benefit in order to use transboundary water
resources:
263
Discussed in Chapter 1 II.
264
Mark Zeitoun and Anders Jägerskog, ‘Confronting power: Strategies to Support Less Powerful
States’ in Anders Jägerskog and Mark Zeitoun (eds), Getting Transboundary Water Right: Theory and
Practice for Effective Cooperation (Stockholm International Water Institute, 2009) 13.
265
Said by Loïc Fauchon at the preparatory meeting to launch the discussion at the 6 th WWF meeting
held in Marseille, 3–4 June 2010.
266
Handl, above n 175, 535.
267
Ibid 540.
268
Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment
(Oxford University Press, 3rd ed, 2009) 303.
165
S Transboundary Waters Opportunity (TWO)
Transboundary Waters Opportunity (TWO) is an approach that can assist riparian
states and other stakeholders to analyse potential benefits in a transboundary
watercourse to optimise economic growth, political stability and regional
integration.269 The conceptual framework of TWO has been developed as a flexible
tool to support decision making within the riparian economies to identify options and
to mitigate against the impacts of water variability. The concepts illustrate four270
key development opportunities and associated benefits. However, other potential
uses of water can be considered in different regional settings. The concept proposes
three271 potential sources of water to support development. The different potential
combinations of water sources and water uses explored through the analyses can be
presented as development opportunities. By showing the positive gains that can be
shared, stakeholders and countries can identify preferred options for development.272
T Strategic Environmental Assessment (SEA)
Riparian countries need structured approaches to evaluate, assess and agree on both
positive and negative impacts from identified development opportunities. All
riparian countries should have access to the same information to evaluate possible
benefits. This allows for informed decision making; such approaches promote
transparency and trust, which is important in the international context. SEA is
gaining increasing attention as a transparent and practical approach to analyse the
impacts of development programmes.
273
SEA attempts to bring cumulative
environmental, economic and social impacts of major development programmes to
the fore in the planning, project development and investment process. Especially in
269
David Phillips et al, The TWO Analysis: Introducing a Methodology for the Trans-boundary Water
Opportunities Analysis (Stockholm International Water Institute, 2008) 5.
270
1) Hydropower production and power trading, 2) primary production, 3) urban growth and
industrial development and 4) environmental and ecosystem services.
271
The first being ‘new water’ that can be introduced through desalination technologies, inter-basin
transfers or other means of adding water to the inland water cycle. Second, through more efficient use
of existing water resources, and third, other sources such as unallocated water can be put to
productive use.
272
Granit and Claassen, above n 260, 23.
273
Rafik Hirji and Richard Davis, ‘Strategic Environmental Assessment: Improving Water Resources
Governance and Decision Making’ (Main Report Discussion Paper Series No 12, World Bank, April
2009) 20.
166
developing countries, SEA can support cooperative planning in infrastructure
development
that
incorporates
sustainable
environmental
management
for
socioeconomic development.274
The immense GBM basin is shared by Bangladesh, Bhutan, China, India and Nepal.
The GBM is characterised by the world’s highest mountain (including the highest
peak, Mount Everest), greatest floodplains and largest basin population, many of
whom are extreme poor. The region has a unique monsoonal climate, with 50%
precipitation in 15 days and 90% of runoff in four months; very little hydraulic
infrastructure, with only 30 days of flow in artificial storage; extreme pollution and
very limited existing transboundary cooperation. 275 Future risks are undoubtedly
high and could potentially be mitigated through cooperation. Joint institutions for
information sharing could help predict and monitor the basin’s changing hydrology
and underpin early warning systems, thus enhancing both agricultural productivity
and disaster preparedness. Cooperative infrastructure development and/or operation
could help regulate river flows, mitigate floods and droughts, generate power and
irrigate fields. Cooperative environmental management could enhance water quality
and ensure environmental flows for ecosystem health. All of this cooperative
engagement could improve regional relationships ‘beyond the river’.276
GBM countries as a region have to address transboundary water through political
and technical cooperation. Politically, the region needs to take initiative to building
confidence between multiple countries together, and technically, countries will have
to invest in solving numerous issues and challenges arising out of water scarcity and
climate change, among others.277 Further, the region should learn lessons from the
best practices of other regions, where there have been multiple success stories278 in
relation to harnessing the water resources jointly. GBM co-basin states should try to
embed themselves to manage their transboundary water resources in an improved
274
Granit and Claassen, above n 260, 24.
275
Grey, Sadoff and Connors, above n 240, 17.
276
Ibid.
277
D Suba Chandran, ‘Regional Approach: Water as Cooperation’ in D Suba Chandran and J
Jeganaathan (eds), Energy and Environmental Security A Cooperative Approach in South Asia
(Institute of Peace & Conflicts Studies, 2011) 123, 130.
278
Mekong, Nile, Rhine and Zambezi.
167
manner for their mutual environmental, social and economic benefit. In this context,
Bangladesh as a lower-riparian can argue to incorporate above approaches in
designing bilateral and multilateral regulatory frameworks to manage transboundary
water resources. The national legal regime of Bangladesh pertaining to water does
not limit its scope to territorial jurisdiction. Rather, it promotes the opportunity to
implement the above approaches in managing transboundary water resources with
other riparian states.
VIII
CONCLUDING REMARKS
The above discussion has revealed that the fundamentals principles of international
watercourses law has significantly contributed to SD and management of
transboundary water resources. These principles have progressed through and been
recognised and incorporated into the international legal instruments relating to the
utilisation of transboundary water. Gradually, IGO and INGO initiatives are
developing transboundary water resources management regulatory frameworks279 of
regional and universal application.280
The CIL is very broad and general but lays out an effective global framework for the
control of inland water pollution. To date, no specific international initiatives281 have
been undertaken to control inland water pollution. However, the management and
utilisation of transboundary water among the riparian states is always a complicated
and difficult task.282 Many riparian states acknowledge and incorporate customary
and fundamental principles in bilateral and multilateral regulatory frameworks to
manage transboundary water resources. 283 As a sign of development in managing
shared waters, these regulatory frameworks have imposed certain obligations to
control inland water pollution; however, they are limited to transboundary impacts of
inland water.
279
Such frameworks contain a set of fundamental principles, many of which are reflected in judicial
decisions and arbitral awards on international water disputes.
280
Abedin, above n 53, 198.
281
These include international legal and policy instruments and case law.
282
Subedi, above n 25, 10.
283
Such as Mekong River Commission (MRC), Nile Basin Initiative (NBI) and Danube River Basin
Management Plan (DRBMP).
168
The next chapter will consider how much the emerging fundamental principles of
international watercourses law are recognised by the policy documents in
Bangladesh to protect inland water pollution at the national level. This thesis will
argue that the incorporation of these principles for SD, management and utilisation
of inland water resources is crucial for inland water pollution control.
169
CHAPTER 6: REGULATORY FRAMEWORKS FOR PROTECTING
INLAND WATER POLLUTION: CHALLENGES AND OPPORTUNITIES
IN BANGLADESH
I
INTRODUCTION
Water is deeply embedded in the life and wellbeing of the people of Bangladesh.1
The present chapter describes and analyses the regulatory frameworks for protecting
inland water from pollution in Bangladesh. It discusses constitutional provisions,
NWPo,2 different laws and regulations and current institutional frameworks that deal
with water resources management in the country. Further, various attempts to share
transboundary water resources and encourage regional collaboration in line with
international development are discussed, because huge flows of water enter into the
country from the outside.
In order to ensure the protection of inland water, conservation and management3 of
inland water resources as well as promulgated effective laws are significantly
interlinked and essential. A developing country like Bangladesh is confronted with
enormous challenges to prevent inland water pollution. The challenges include the
scarcity of water, inadequacies of laws and policies, sharing transboundary water and
future challenges in a changing climate. This chapter highlights some options to
overcome the situation and the importance of joint responsibility among the
governments, citizens and other stakeholders, with specific reference to legal and
policy development.
1
Giasuddin Ahmed Chowdhury, ‘Participatory Water Management Approach in Bangladesh’
(Symposium Proceedings, Regional Centre on Urban Water Management, Tehran, 15–16 December
2003) 71.
2
The government of Bangladesh issued the National Water Policy in 1999. Although this policy has
no legally binding effect, its main purpose is to provide guidance on the issues to be addressed in the
water laws and how to deal with them. The country has adopted a National Environment Policy in
1992.
3
Discussed in Chapter 7 V G.
170
II EARLY DEVELOPMENT OF LEGISLATIVE AND POLICY FRAMEWORK
Prior to the partition of the Indian subcontinent in 19474 there had been no national
scale government-led water sector development in the erstwhile East Pakistan. 5
During British occupation of Bengal, a public works programme for the construction
of local infrastructure such as small reservoirs to reduce the adverse impact of floods
and to ensure water from irrigation during dry seasons occurred. 6 Following
devastating floods in consecutive years 1954 and 1955, a UN mission (the Krug
mission) investigated the possibilities for water resource development in East
Pakistan. Following the UN mission’s recommendations, the East Pakistan Water
and Power Development Authority (EPWAPDA) was created in 1959.7
Bangladesh has a long history of water resource planning initiatives that starts from
the mid-1960s. Initially, it was focused on flood protection strategies in order to
prevent the food shortage in the country. The real beginning of water sector planning
in the erstwhile East Pakistan was marked by the completion in 1964 of a 20-year
water master plan, prepared by EPWAPDA with USAID assistance. In fact, the 1964
water master plan was not an integrated water resource development plan; rather, it
was a collection of individual water projects. Nonetheless, it formed the basis of all
water sector planning programmes in Bangladesh for the next two decades.
Following independence in 1971, from the two separate divisions 8 of the former
EPWAPDA, the BWDB was established in 1972.
The country gained support from several agencies immediately following
independence, including the International Bank for Reconstruction and Development
(IBRD) in 1972. IBRD produced a land and water sector study report with the
objective of providing a basis for all development programmes in accordance with
4
In 1947, the Indian subcontinent partitioned into two countries, namely, India and Pakistan. Twentyfour years later in 1971, after nine months of a bloody liberation war between the western and eastern
part of Pakistan, the eastern part of the country became the independent country of Bangladesh.
5
Matthew Chadwick and Anjan Datta, ‘Water Resource Management in Bangladesh- A Policy
Review’ (Working Paper No 1, the UK Department for International Development) 2.
6
‘Bangladesh Country Water Resources Assistance Strategy’ (Report No 32312-BD, World Bank, 20
December 2005) iv.
7
M Q Zaman, ‘Rivers of Life: Living with Floods in Bangladesh’ (1993) 33 Asian Survey 985, 991.
8
Water Development and Power Development Boards.
171
the 1964 master plan.9 In 1974, Bangladesh was once again hit by a severe flood,
which renewed interest in flood control and drainage. By the early 1980s, the
pressures of a rapidly increasing population and expanding agricultural and industrial
sectors had brought about the recognition of the need for long-term comprehensive
water resources development.10 There has been a significant shift in national policies
with an emphasis on a holistic vision of management in the water sector under the
concept of IWRM.11
The process to prepare a NWP was initiated by the government in 1983 with the
assistance of international organisations. 12 In 1983, the National Water Resources
Council (NWRC) was established as an inter-ministerial body. Later in the same year,
the Master Plan Organisation (MPO)13 was created and entrusted with the task to
draft the first NWP. Phase I of the NWP was completed in 1986 with a detailed
assessment of the country’s water resources development potential. However, this
strategy was not accepted by the government because of the reservations of BWDB.
It raises concerns in relation to the availability of groundwater and the inadequate
attention paid to the development of surfacewater resources.14
The NWP was extended (Phase II) in 1986 and was completed in 1991. During this
period, the MPO prepared a draft water code and outlined proposals to
institutionalise the process of planning and development of water resources.15 Phase
II had a 20 year planning horizon starting from 1991 and ending in 2010, but it was
also not accepted on the same grounds as phase I. Phase II was also criticised for
inadequately addressing the issue of non-agricultural water needs. Nonetheless, both
phases of NWP have made a significant contribution to the development of a national
database of the water resources of Bangladesh. This database provides a foundation
9
K B Sajjadur Rashid, Water Resources Management with Examples from Bangladesh (AH
Development, 2011) 48.
10
Chadwick and Datta, above n 5, 4.
11
Rashid, above n 9, 47.
12
The World Bank and UNDP.
13
The MPO was set up under the Ministry of Irrigation, Water Resources and Flood Control now
known as MoWR.
14
Rashid, above n 9, 48.
15
World Bank, Water Resource Management in Bangladesh: Steps Towards a New National Water
Plan (Rural Development Sector Unit, South Asia Region, Dhaka 1998).
172
for subsequent water sector planning. To recast the NWP within the appropriate intersectoral focus, the MPO was restructured as the WARPO in 1991 with the mandate
to ‘evolve national policies and strategies for utilisation and conservation of water by
all’.16
In February 1996, the World Bank reviewing the master plan observed that the plan
represented a useful beginning and a unique attempt to collect and bring together all
the necessary data on a scale sufficient to formulate an integrated plan for the
development of land and water resources. From 1996, all activities related to water
planning and management came under the jurisdiction of WARPO. The government
adopted NWPo in 1999 with the objectives of managing the country’s water
resources in a comprehensive, integrated and equitable manner. In 2001–2002,
MoWR prepared the NWMP to implement the directives provided in the NWPo,
which was approved by the government after an intensive review in 2004. The
NWMP is structured in a way that the objectives of 84 different programmes,
identified for the next 25 years, contribute individually and collectively to achieve
overall and intermediate sub-sectoral goals. 17 The programmes are grouped into
eight sub-sectoral clusters and spatially distributed across eight hydrologic regions18
of the country. The NWMP is a visionary instrument that considers long-term
sustainable management of water as public good. It has taken into account all
shortcomings of previous planning exercises and has tried to address the challenges
to inland water to satisfy the needs of both the environment and humans. However, a
major deficiency of the plan is not to include an assessment of climate change
impacts on the water sector.
The fundamental rights, 19 preamble or the state policies in the Constitution of
Bangladesh do not expressly mention any right to water or even a healthy and clean
16
Government of the People’s Republic of Bangladesh, ‘National Water Policy’ (Ministry of Water
Resources, 1999) 15.
17
See details in ‘National Water Management Plan’ (Report Vol 2, Ministry of Water Resources,
2001).
18
Discussed in Ch 2, III.
19
The fundamental rights are directly enforceable in the court and consistently used in Bangladesh to
protect the environment. Some related rights that are or could be used in Bangladesh for the
protection of the environment: right to life (art 31), right to liberty (art 32), improvement of the
standard of living (art 16) and steady economic growth (art 15).
173
environment. However, the judiciary stressed the need of harmonious interpretation
of the Constitution to ensure environmental protection.20 There are few cases where
the court dealt with conservation and equitable utilisation of natural resources 21 and
had to balance between unplanned development and ecological protection.22 While
interpreting the fundamental rights, both the High Court and Appellate Division
expanded the meaning of fundamental right to life to include protection and
preservation of the ecology and right to have pollution free environment. 23 A number
of constitutional articles have been interpreted by the High Court in a number of
cases,24 and the courts are willing to establish that the right to a clean environment is
the fundamental right. The judiciary stressed the need of harmonious interpretation
of the Constitution to ensure environmental protection and want to amend and
develop the existing fundamental rights in order to pressure the government to
implement the environmental policies. The judiciary adopted a holistic approach
while interpreting the fundamental rights and took account of the policy statements,
preamble and other provisions of the Constitution.25
The government of Bangladesh has developed some long term policies to control and
protect inland water pollution to cope with emerging issues in the water sector.26 In
addition to these, policies have been formulated for other sectors that have relevancy
20
Jona Razzaque, Access to Environmental Justice Role of the Judiciary in Bangladesh (25 February
2012) <http://www.eng-consult.com/BEN/papers/Paper-jona.PDF>.
21
M Farooque v Bangladesh (1997) Writ Petition No 948.
22
Two cases in this regards are Sharif N Ambia v Bangladesh (1995) WO No 937 and Khusi Kabir
and Others v Bangladesh (2000) Writ Petition No 3091.
23
The High Court Division [(1996) 48 DLR (HC) 438] states: ‘right to life … includes the enjoyment
of pollution free water and air, improvement of public health by creating and sustaining conditions
congenial to good health and ensuring quality of life consistent with human dignity’.
The Appellate Division [(1997) 49 DLR (AD) 1] states: ‘Article 31 and 32 … encompass within its
ambit, the protection and preservation of environment, ecological balance free from pollution of air
and water, sanitation without which life can be hardly enjoyed. Any act or omission contrary thereto
would be violative of the said right to life’.
24
Dr. M Farooque v Secretary, Ministry of Communication, Government of the People’s Republic of
Bangladesh and 12 Others (Unreported) and Khushi Kabir and Others v Government of Bangladesh
and Others (2000) Writ Petition No 3091.
25
Razzaque, above n 20.
26
The most significant policies are: National Water Policy 1999, Guideline for Participatory Water
Management 2001, National Water Management Plan 2002 and National Water Act 2010 (under
finalisation process).
174
to inland water.27 The NWPo and the NWMP both have taken measures of all the
major concerns arising out of past water management practices and issued policy
guidelines in resolving those issues. Moreover, the National Water Law (NWL) 2013
contains provisions for the preservation and development of water.28
The formulation of legislation for control and minimisation of water pollution in
Bangladesh were initiated as early as 1970 through the East Pakistan Water
Pollution Control Ordinance (WPCO).29 The East Pakistan Water Pollution Control
board was established according to that ordinance. According to the ordinance, any
person undertaking commercial or industrial activity should adopt measures for the
prevention, control and abatement of existing or potential pollution of any water,
including construction, modification, extension or alteration of disposal systems;
provide information to the board regarding wastes, sewerage or treatments works;
and permit any officer to inspect and search land and buildings. Further, there were
provisions to impose fines and imprisonment due to negligence or failure to comply
with these requirements.30
Bangladesh was severely underdeveloped, as a new nation in 1971, in almost every
aspect. With the limited resources of a war-torn nation, the infrastructure 31 was
inadequate to deal with the massive environmental problems, ranging from water to
forest. The WPCO 1970 was repealed and replaced by the Environment Pollution
Control Ordinance (EPCO) 1977.32 The ordinance extended the control, prevention
and abatement of pollution to the entire environment of the country and expanded
the definition of ‘pollution’ from that specifically relating to waters. The government
abolished the EPCO 1977 through passing the Bangladesh Environment
Conservation Act (ECA) 1995. This act provided the basis to enact the
27
Such as the National Agricultural Policy and the related Arsenic Mitigation Policy 2004 and
National Policy for Safe Water Supply and Sanitation 1998. National Fisheries Policy 1998, National
Energy Policy 1996, National Forestry Policy 1994, National Environment Policy 1992, Fisheries
and Livestock Policy 1998 have specific reference to water.
28
Discussed in Chapter 6 II B.
29
East Pakistan Ordinance No V of 1970, Government of Pakistan.
30
Md. Ashiqur Rahman, ‘Towards an Integrated Pollution Management Approach for the Buriganga
River in Bangladesh’ (Phd Thesis, The University of Sydney, 2011) 92.
31
Such as governmental, socio-economic and physical.
32
Bangladesh Ordinance No XIII of 1977, Government of the People’s Republic of Bangladesh.
175
Environmental Conservation Rules (ECR) 1997, which are considered the most
important legislative documents pertaining to water pollution abatement in
Bangladesh. The ECA 1995 and the accompanying ECR 1997 are arguably the most
important legislative documents for industrial water pollution. The ECA primarily
clarifies the DoE’s mandate and strategies for pollution control. The act defines the
functions of the DoE, provide considerable power regarding environmental
preservation and adopts a penalty system in case of non-compliance of the
procedures by an individual or a company. The ECR 1997 provides additional
guidance for specific components of the ECA 1995 and makes some major
contributions in pollution control. The ECR 1997 incorporates the development of
environmental quality standards for both ambient and effluent quality and
formulation of procedures for obtaining the environmental clearance certificate by all
industrial units.33
There are various legislations in place to protect inland water resources and control
inland water pollution in Bangladesh. Having numerous efforts is a clear indication
that the issue of inland water pollution has received substantial attention by the
government of Bangladesh. However, the bulk of these legislations are nonfunctional, not being implemented and remain unenforced because of weak
institutional capabilities, lack of knowledge about the law at the operational level,
conflicts with traditional rights and practices, absence of resource surveys and
records, inadequate resource allocations and judicial procedures. The existing
policies, rules and regulations are inadequate to deal with the current and emerging
problems of inland water. Therefore, there is a pragmatic need for research to help
alleviate this situation. The Institute of Water Modelling (IWM) in Bangladesh made
an observation that even though many more legislative provisions exist, they are
lacking in the effective implementing principles for controlling inland water
pollution of the country.34
33
Industries have been divided into four categories depending on environmental impact and location.
34
‘Industrial Environmental Compliance and Pollution Control in Greater Dhaka-Phase I’ (Final
Report, IWM, Dhaka, 2007).
176
Table 6.1: List of Legislation Related to Inland Water Pollution and Environmental
Conservation in Bangladesh
1.
Irrigation Act 1876
2.
Agriculture and Sanitary Improvement Act 1920
3.
Embankment and Drainage Act 1952
4.
Inland water and Transport Authority Ordinance 1958
5.
Water Pollution Control Ordinance 1970
6.
Dhaka Metropolitan Ordinance 1976
7.
Environmental Pollution Control Ordinance 1977
8.
Water Resource Planning Act 1992
9.
Bangladesh Environment Conservation Act 1995
10.
Water Supply and Sanitation Authority Act 1996
11.
Environment Conservation Rules 1997
12.
Environment Court Act 2000
13.
Bangladesh Water Development Authority Act 2000
14.
Environment Conservation (Amendment) Act 2002
15.
National Water Law 2013
The list of legislation provided above indicates that a number of ministries and
organisations are directly or indirectly involved in environmental protection and
inland water pollution control in Bangladesh. However, there is not any single
authority or organisation that takes leading responsibility for inland water pollution
control in Bangladesh. This thesis will argue that the importance of a single
management authority can enhance the possibility of control of inland water
pollution in Bangladesh.
A The Environment Court Act 2000
The Environmental Court Act 2000 supports the Environmental Conservation Act
1995 and the Environmental Conservation Rules (ECR) 1997 by providing for the
establishment of environmental courts. 35 In 2000, the government enacted the
Environment Court Act to provide a foundation for the formation of environmental
benches in Bangladesh for the trial of offences related to environmental pollution,
35
The Court is especially for the trial of offences relating to environmental pollution.
177
including water pollution.36 The Environment Court Act 2000 has been enacted in
order to establish environmental courts in all administrative divisions in Bangladesh
and defines the court’s jurisdiction, appropriate penalties, powers of search and entry
and procedures for investigation, trial and appeal. According to the act, the
Environment Court has the concurrent power 37 to hear the cases instituting as a
violation of ‘environmental law’ according to the Bangladesh ECA 199538 and rules
made there under.
The ECA 1995 and the Environmental Court Act 2000 were both amended in 2002
and the ECR 1997 was extended to include some other provisions such as certificate
of fitness and pollution under control certificates. Recently, the Environment Court
Act 2010 repealed39 the Environment Court Act 2000. However, this new Act retains
most of the provisions of the previous Act and introduces only few changes. The
Environment Court Act 2010 established environment courts in each district, 40
instead of each division.41 However, the qualification and status of the judges of the
environment courts remain same to the previous Act.42 The environment courts now
can adjudicate and resolve the offences under the environmental law if forwarded by
the Special Magistrates.43 The most significant change has been made by the new
law by introducing a limited form of conciliation.44 The process fully depends upon
the consent of the Director General (DG) and has been limited to within only two
offences.
36
Bangladesh Gazette (Government of the People’s Republic of Bangladesh, Act No. 11, 2000).
37
Concurrent power means the court has the jurisdiction to try both the civil and criminal cases.
38
The Bangladesh Environment Conservation Act (ECA) 1995 is the main legislative framework
document relating to environmental protection in Bangladesh. This umbrella act includes laws for
conservation of the environment, improvement of environmental standards and control and mitigation
of environmental pollution. This act established the DOE, and empowers its Director General to take
measures as he considers necessary, which includes conducting inquiries, preventing probable
accidents, advising the Government, coordinating with other authorities or agencies, and collecting
and publishing information about environmental pollution.
39
Environment Court Act 2010 s 24.
40
Ibid s 4(1). Bangladesh is divided in 64 districts and seven administrative divisions. Each division
comprises of few districts.
41
Environment Court Act 2000 (repealed) s 4(1).
42
Ibid s 4(2).
43
Ibid s 7(1).
44
Ibid s 18(1).
178
B National Water Law (NWL) 2013
Bangladesh started to promulgate an umbrella water law for the country in 2008. The
legislators are trying to consolidate and supplement the existing laws to regulate the
water resources of Bangladesh in order to facilitate and ensure integrated, equitable
and sustainable management, development, utilisation, conservation and protection
of inland water resources that include the way to control inland water pollution. The
draft of the NWL 2012 has accepted wide range of comments from stakeholders. The
draft has a provision to identify areas facing water crisis, but there is nothing on how
to recover from such crisis. The proposal to reduce pressure on groundwater in the
NWPo 1999 is also absent in the draft. Moreover, the draft provides the MoWR the
authority to formulate guidelines to identify specific areas for different kinds of
economic activities related to water resources, but no provision was kept to take
public opinion.
The parliament has passed the NWL 2013, which includes seven chapters and 47
sections. The NWL 2013 has inserted all the relevant definitions but not defined ‘the
river’, whereas river is one of the main sources of inland water. 45 Right and
utilisation of water belongs to the state on behalf of its people. 46 The government is
also responsible to amend and update NWPo and has the right to declare specific
areas are critical water dangers.47 Though NWPo 1999 and the draft version of the
law mentioned the right to water as a fundamental right, the NWL 2013 has not
acknowledged that. Even stakeholder or public participation in the consultation was
inadequate. The issues identified to include in the national water resources planning
are vast but unclear.
Although the NWPo is a well thought out, structured and comprehensive document,
which has the merits to be invoked as a law, this has never materialised due to its
limitations.48 Thus, an effort to perceive an umbrella water law is necessary49 and
would create a common platform to coagulate all existing water-related laws.
45
Bangladesh Water Law 2013 s (2)
46
Ibid s (3).
47
Ibid s (8), s (18).
48
Discussed in Chapter 7 III.
49
Ramaswamy R Iyer, Water Perspectives, Issues, Concerns (Sage Publications, 2003) 108.
179
Numerous laws, although not directly related to water, do have significant overlap
with water laws and related resolution by court in various cases. These laws lack
coordination in terms of practice or vision, hence are often mutually inconsistent.50
The NWL, with inputs from WPCO 1977, the Environment Protection Act 1995 and
the Environment Conservation Rules 1997, among others, needs to address the
protection of diverse water sources51 from pollution, contamination, degradation and
overexploitation. The conservation of the resource, awareness of scarcity, the
avoidance of waste and misuse are important concerns to be included in the NWL.52
In regard to industrial use, the NWL will have to provide a system for quantitative
approvals in accordance with certain norms (case-by-case and cumulative), inclusive
of a requirement of recycling and reuse, the prescription of effluent treatment and
setting standards for discharge.
C The National Water Policy (NWPo) 1999
Along with other legislation, the declaration of the NWPo 1999 is a bold step for the
water sector in Bangladesh. The absence of national water policy is highly
detrimental to overall development for a water dependent country like Bangladesh.53
The broad principles of the development of water resources and their rational
utilisation have been laid down in the policy.54 The policy is intended to guide both
public and private actions for ensuring optimal development and management of
water that benefits both individuals and the society. 55 The policy is designed to
ensure continued progress towards fulfilling the national goals of economic
development and poverty alleviation, improving the standard of living for the people
and protection of the national environment, with a periodical review provision, and it
can be revised as necessary.56
50
Ibid 111–112.
51
Rivers, lakes, other surfacewater bodies, groundwater aquifers and so on.
52
Iyer, above n 49, 118.
53
NWPo, above n 16, Foreward.
54
Ibid 1.
55
Ibid.
56
Ibid 2.
180
The planning framework suggested by the NWPo can be categorised into four broad
aspects. These are: 1) national goals, 2) improved management of the water sector, 3)
effective institutional, legal and regulatory measures and 4) efficient and equitable
development measures. The main choices that have guided strategy formulation
relate to the emphasis or priority to be given towards fulfilling the national goals of
economic development, poverty alleviation, food security, public health and safety,
decent standard of living and protection of natural environment.57 Thus, the selection
of appropriate institutional frameworks, sub-sectoral and regional measures, taking
account of their social, economic and environmental significance plays a crucial role.
Each strategy sets a different way towards achieving the same overall goal that
reflects the long-term needs for developing the water sector.
Bangladesh faces enormous challenges in resolving diverse problems and issues
related to water resources management and protecting inland water from pollution.58
The most critical of these are alternating abundance and scarcity during the dry and
wet seasons and ever-increasing water needs for the growing economy and
population.59 The formative objectives determined by the policy in relation to inland
water aims to address the harnessing and development and management of inland
water resources in an efficient and equitable manner. The policy brings institutional
changes to develop a legal and regulatory environment that will help in the shift
towards decentralisation and sound environmental management and improve the
investment atmosphere for both public and private sector.60 It also aims to expand the
knowledge and capabilities that will enable the country to design future water
resources management plans that encompass, with economic efficiency, gender
equity, social justice and environmental awareness through broad public
participation.61
57
Ibid.
58
Discussed in Chapter 3III.
59
Ibid.
60
Government of the People’s Republic of Bangladesh, above n 16,1.
61
Ibid 3.
181
The NWPo of Bangladesh was prepared with the aim to address the objectives of
improved water resources management and protection of the environment. 62 The
policy was envisaged to guide both public and private actions in the future to ensure
optimal development and management of water. The document acknowledges that
the water resources of Bangladesh are facing severe environmental stress and
identified six objectives for better water resources development and management,
but surprisingly does not even mention the term ‘climate change’ and does not
consider climate change as a threat to the water sector. The document allocated a full
section to ‘water for the environment’ and ‘river basin management’. It might be
expected that the issue of climate change would attract considerable attraction at
least in those two sections. However, neither has any mention of climate change
vulnerabilities to the water sector. The NWPo identifies some of the vulnerable
communities63 and sectors that may suffer from water-related problems and reports
some potential natural vulnerabilities and disasters, 64 but the linkage of climate
change with those is not at all apparent.65 The document proposes some policies as
potential remedial action without considering the threat of climate change. In terms
of climate policy integration with the water sector, the NWPo of Bangladesh is very
poor and cannot guide the water resource sector under a changing climate.
The NWPo provides the broad principles of development of water resources that will
guide and ensure optimal development and management of inland water. The policy
focuses on the fundamental issues of river basin management, planning and
management of water resources, water rights and allocation and water for
environmental, economic and financial management. It also lays down broad
principles for the development of water resources and their rational utilisation for
ensuring the optimal development and management of water. Both individuals and
the society will be largely benefitted by implementing this guideline. The policy
outlines essential areas for addressing the objectives of improved water resources
62
Nazmul Huq et al, ‘‘Climate Proofing’ Water Resources Development Policy: The Evidence from
Bangladesh’ in Walter Leal Filho (ed), Climate Change and the Sustainable Use of Water Resources
(Springer, 2012) 389, 395.
63
This document points out the poor, underprivileged, women and children as vulnerable groups.
64
Such as floods, lowering groundwater table, wetland destruction and shortage of irrigation water.
65
Huq et al, above n 62, 395.
182
management and protection of the environment that includes control of inland water
pollution. The areas are as follows.
1
River Basin Management
Bangladesh is the world’s largest deltaic plain comprising an intricate network of
over 250 rivers.66 These rivers originate in the upstream country and enter through its
borders; due to the lower-most riparian location, the country has no control over the
rivers.67 As a long-term measure, the policy emphasises to undertake essential steps
for basin-wide planning for development of the resources of the rivers entering its
borders. NWPo suggests short and intermediate term policies to initiate international
cooperation in water management. The provision encourages working with coriparian countries for exchange of all relevant data and information, joint assessment
for better understanding of overall basin potentials, mitigating flood and augmenting
flows of water during wet and dry seasons. 68 Further, it suggests working in
partnership with the co-riparian countries for the prevention of inland water pollution
by managing the effluents discharged from industrial, agricultural and domestic
pollutants sources.
2 Management of Water Resources
The process of planning and managing water resources requires a comprehensive
and integrated analysis of all related water-using sectors. The government’s
responsibility is to formulate and periodically review the rules, procedures and
guidelines on all aspects of water management with a view to undertake
comprehensive development and management of the inland water resources for
multipurpose use, such as agricultural, industrial, domestic and aquatic wildlife.
3 Water Ownership and Allocation
The ownership of water has been vested in the state not in an individual and the
government reserves the rights to allocate water to ensure equitable distribution for
effective development and use. The government is responsible to make the decision
66
Rahim M Quazi, ‘Strategic Water Resources Planning: A Case Study of Bangladesh’ (2001) 15
Water Resources Management 165, 168.
67
Government of the People’s Republic of Bangladesh, above n 16, 4.
68
Ibid.
183
of who gets water for what purpose(s), how much at what time for how long and
under what circumstances water use may be curtailed. 69 Different rules for water
allocation will be developed for in-stream needs, 70 off-stream withdrawal 71 and
groundwater recharge and abstraction. The government will exercise water allocation
power for allocating water during critical periods, regulate the extraction of water in
the identified scarcity zones. The government may decentralise the allocation power
to exercise and enforce the regulations to the local government or any local body.
4 Economic and Financial Management
Pricing and other economic incentives systems largely affecting water demand and
supply in Bangladesh thus changes are essential. A system of cost recovery, pricing
and economic incentives is necessary to balance the demand and supply of water.
Desirable practices like conjunctive use, water-saving technologies, harvesting,
transfers and recycling, both within and between sectors, will emerge only when
users perceive the scarcity value of water.72 The government pricing structure needs
to be matching with the goals and needs of the provider and the consumers. Pricing
need to be different based on consumption and commercial utilisation. In addition,
the rates for surface and groundwater need to reflect, to the extent possible, their
actual cost of delivery.
5 Research and Information Management
Some common and general understandings among the policy makers, experts,
stakeholders and the general public are essential regarding the changing environment
and the best possible ways to achieve the national water management goals. As
management decisions become increasingly complex and information sensitive, the
demand for supporting research and information management increases. 73 The
government can develop a central database consolidating information from different
sources on the existing hydrological systems, supply and use of national water
resources, water quality and ecosystem. Further, the government can promote and
69
Ibid 7.
70
Such as ecological, water quality, fisheries and navigation.
71
For example, irrigation, municipal and industrial use.
72
Government of the People’s Republic of Bangladesh, above n 16, 16.
73
Ibid 17.
184
strengthen the involvement of research organisations and academic institutions to
develop appropriate technologies for conjunctive use of rain, ground and
surfacewater.
6 Water for the Environment
Water is directly linked with most of the country’s environmental resources. It is
important that water resource management actions take care to avoid or minimise
environmental damages. However, contamination of surfacewater bodies and
groundwater aquifers by household activities, industrial discharge, agricultural
pollutants and non-point source urban runoff worsen water quality problems.74 The
government needs to ensure that different agencies and departments entrusted with
water resource management responsibilities (regulation, planning, construction,
operation and maintenance) are given full consideration to environmental protection
consistent with the NEMAP and the NWMP.
7 Stakeholders’ Participation
The stakeholders’ involvement is an integral part of water management. The roles of
stakeholders need to be increased in decision making and the implementation
process of water management. The government also need to lead the effort to ensure
greater participation of women in this regard.75
In addition to these laws and policies, Bangladesh has been involved in major
international conventions, protocols and treaties related to water and environment.
Those international instruments cover issues that include prevention of pollution,
conservation of ecosystems, climate change mitigation and the protection of
biological diversity.76 The national legal regime of Bangladesh pertaining to water
does not limit its scope to territorial jurisdiction. Rather, it promotes the
implementation of internationally accepted general principles of transboundary water
74
Ibid 14. Discussed in Chapter 2 VI.
75
Ibid 18.
76
The major environment related instruments that have an inland water effect are: Ramsar Convention
(1971), Agreement on the Network of Aquaculture Centres in Asia and the Pacific (1988), Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal
(1989). For details, see United Nations Department for Policy Coordination and Sustainable
Development, National Implementation of Agenda 21: Bangladesh Country Profile (12 February
2011) <http://www.un.org/esa/earthsummit/bang-cp.htm>.
185
resources management
77
under international law in partnership with other
stakeholder riparian states. Thus, Bangladesh’s experiences have created an enabling
environment for IWRM planning.78
D National Environmental Management Action Plan (NEMAP)
The NEMAP 79 prepared by the government of Bangladesh is the basis for
programmes and interventions aimed at promoting better resource management,
making people aware of environmental problems, including inland water pollution
and reversing the present trend of environmental degradation. This plan constitutes a
synthesis of the perception of the government and the people of Bangladesh in
relation to environmental issues and what needs to be done to address them.80 The
first phase of the plan was carried out in 1992 to identify some areas of concern. The
second and the third phase were completed respectively in 1993 and 1994 by
national and international consultants through a series of discussions and workshops.
The document was relevant for the period of 1995–2005.81 The NEMAP identified
inland water management of Bangladesh as a key environmental issue. As most of
the rivers flowing through Bangladesh originate in neighbouring countries, sharing
of water is another concern and also pollution of inland water is becoming a major
problem.
The NEMAP sets the policy framework for environmental development in
combination with a set of broad sectoral guidelines, which emphasise inter-alia the
following:82
77
Discussed in Chapter 5 II A.
78
ATM Shamsul Huda, ‘Integrated Water Resources Management in Bangladesh: An Assessment’ in
Asit K Biswas, Oli Varis, Cecilla Tortajada (eds), Integrated Water Resources Management in South
and South East Asia (Oxford University Press, 2005) 106.
79
The plan was prepared by the MOEF in consultation with government agencies, NGOs,
professional groups and academic researchers. They worked together through a series of workshops,
including a national workshop that helped to reach in a consensus to act as the basis of this action
plan.
80
Government of the People’s Republic of Bangladesh, ‘National Environment Management Action
Plan’ (Report Vol II, Ministry of Environment and Forest, 1995) 12.
81
Ibid 15.
82
Asian Development Bank, ‘Country Environmental Analysis Bangladesh’ (Draft Report No 3,
ADB, July 2004) 22.
186

maintenance of the ecological balance through protection and improvement
of the environment for the development of the country;

identification and control of all types of activities related to pollution and
degradation of environment;

undertaking environmentally sound development programmes in all sectors;

sustainable long-term and environmentally congenial utilisation of all natural
resources.
Based on a national consultative process, the NEMAP 1995 has identified the main
water-related issues in the country. The NEMAP calls for the MoWR and other
organisations to undertake action 83 in the water-related fields. The significance of
this plan in terms of inland water pollution was enormous. This is the first of its kind
that allowed massive stakeholder participation in the adopting process. The plan had
an overall environmental aspect but as a natural resources water was a central and
integral part of it.
E National Water Management Plan (NWMP)
National level planning of the water resources of Bangladesh dates back to 1964.84
Later in 1986, the MPO prepared a draft NWP for the country that was updated in
1991. Both the plans have resulted in a substantial appreciation of the nation’s water
resources, although the plans significantly varied in terms of development
approaches. The plans put an excessive focus on the needs of the agricultural sector
(irrigation, drainage and flood protection) to the detriment of other sectors (water
supply, sanitation and industry) plus environmental and other in-stream demands.85
Further, earlier plans were also criticised for failing to address the social and
environmental impacts of water resource development, inadequacy for policy
83
Actions included: 1) carry out mitigation and restoration activities to improve problems with
drainage in wetlands, flooding, salinity and biodiversity, 2) prepare guideline together with the LGED
to address unplanned abstraction of groundwater, 3) develop guidelines for the environmental review
of water sector projects, 4) formulate a strategy at both national and international levels to address the
problem of reduced availability of water during the dry season, and 5) develop a comprehensive plan
for the development and management of the water sector database (an activity of WARPO).
84
The First Water Master Plan was published by the East Pakistan Water and Power Development
Authority (EPWPDA).
85
Government of the People’s Republic of Bangladesh, ‘National Water Management Plan’ (Report
Vol 2, Ministry of Water Resources, 2001) 1.
187
frameworks and for not having any supporting strategies. Considering the
recommendations from the Bangladesh Water and Flood Management Strategy
(BWFMS), the government of Bangladesh developed a supporting approach related
to water sector development to achieve overall national goals. The NWMP provides
the guiding principle for water resource management in Bangladesh. It is a
comprehensive plan and includes a detailed investment option in the water sector.86
It also sets out a framework for action that the government intends to take to ensure
development of effective institutions and legal and regulatory measures of the water
sector.87
The NWMP addresses the overall water resource management issues in each
hydrological region and the country as a whole. The scope of the plan has been
determined as:

to contribute in a balanced fashion to the overall national goals of economic
development and protection of natural environment;

to provide a framework plan for developing and managing water resources in
an integrated and comprehensive manner;

to be realistic about the prospects for institutional and implementation
capacity;

to be reviewed and updated every five years and a prospective plan made for
the long term.
The NWMP is a framework plan for realising the directives of the NWPo, within
which line agencies and other organisations are expected to plan and implement their
own activities in a coordinated manner. 88 The process of planning and managing
water resources requires a comprehensive and integrated analysis of water-related
hydrological, environmental and institutional factors. The continued development
and management of the nation’s water resources should include the protection,
86
ADB, above n 82, 46.
87
Government of the People’s Republic of Bangladesh, above n 85, 5.
88
Huda, above n 78, 130.
188
restoration and preservation of the environment and should take care to avoid or
minimise environmental damage.89
The extent and intensity of the crisis in water resource management is well known,
but how to deal with it is becoming more difficult day by day.90 In recent years, the
pressure for the restructuring of the water sector has grown and the government
recognise the inadequacy of the existing legislative and policy framework for
meeting the needs of the sector and proposed restructuring. The development of a
framework of national legislation, regulations and local by-laws for encouraging
sound management of water pollution can potentially protect harmful effects of
inland water pollution. Inland water pollution control also depends on some
institutional framework, and pollution controls success usually depends on the
combination of regulatory and institutional processes.
III INSTITUTIONAL FRAMEWORK OF THE WATER SECTOR IN BANGLADESH
Under the MoEF, DoE91 is the primary institution that has the authority to regulate
and enforce environmental management, including the control of pollution of water
resources. DoE is the main body to give clearance certificates to establish any
industrial unit or project, in the manner prescribed by the rules.92 This gives mandate
to the DoE for granting permits to discharge wastewater, monitoring authority to
compliance with the permit and taking actions for non-compliance.93 This provision
subsequently vested the authority of the DoE to issue and renew an Environment
Clearance Certificate (ECC) for anyone who intends to discharge the industrial
effluent. However, the DoE has consistently been underresourced and needs
institutional strengthening. Different NGOs are collaborating on the Sustainable
Environment Management Programme (SEMP), which has recently commenced to
89
The Coastal Zone Policy of Bangladesh 2005, (Policy 4.2 and 4.12).
90
Saifuddin Ahmed, ‘The Status and Challenges of Water Infrastructure Development in Bangladesh’
(Paper Presented at the 1st Regional Workshop on the Development of Eco-Efficient Water
Infrastructure in Asia Pacific, Seoul, 10-12 November 2008) 2.
91
DoE’s key duties related to the water sector include: 1) pollution control, including monitoring
effluent sources, ensuring mitigation of inland water pollution; 2) setting WQS for particular uses of
water and for discharge of water bodies.
92
Scetion 12 of ECA 1995.
93
The procedures to granting permit are explained in ECR 1997.
189
strengthen DoE with the help of the UNDP.94 Further, the Bangladesh Environmental
Management Project (BEMP) is working to strengthen the DoE.95 This department is
also assigned to monitor the water quality of the rivers and to enforce the legislation
for pollution control. Both BEMP and SEMP were launched respectively in 1998 and
2000 to improve water quality monitoring and to estimate pollution loads in rivers
and water bodies. However, the monitoring procedures96 are ambiguous and data are
not easily accessible. In relation to inland water pollution management, regular
monitoring and interaction with industries at the government level are not
adequate.97
Bangladesh has a tradition of top-down management, which means government
departments and also most other organisations make decisions on behalf of the
stakeholders. However, with the progress of democracy, that tradition is beginning to
give way to a more participatory approach.98 In terms of enforcement, all the waterrelated legislation takes a ‘command-and-control’ approach with no economic
incentives for compliance. In terms of technical assessment of compliance and
subsequent enforcement, the DoE is as yet underresourced in technical personnel and
suitable laboratory facilities.99
The DoE is primarily responsible to monitor water quality in inland water sources in
and around the major industrial areas of the country. However, the extent of the
current monitoring and testing facility is totally inadequate to address the need for
94
Sustainable Development Networking Programme, ‘SEMP: the Green Vehicle to Promote
Bangladesh Environment’ (14 September 2012) Sustainable Environment Management Programme
<http://www.sdnbd.org/semp_the_green_vehicle.htm> .
95
This programme is supported by the Canadian government.
96
Such as frequency, parameters and positions.
97
World Bank, ‘Institutional and Economic Analysis of Industrial Effluent Pollution and Control in
the Greater Dhaka Watershed’ (Final Draft, South Asia Sustainable Development Sector Unit,
Washington, 2008).
98
At an early stage, the NEMAP involved an extensive process of public consultations to identify
priorities for addressing environmental problems and drafting the Bangladesh Water Law 2012 gave
opportunity to the stakeholders to share their thoughts.
99
Ian Metacalfe, ‘Long-Term Environmental Issues for Bangladesh’ in Moazzem Hossain, A K M
Nurun Nabi and Iyanatul Islam (eds), Bangladesh’s Development Agenda and Vision 2020 Rhetoric or
Reality (The University Press Limited, 2003) 301, 316.
190
comprehensive water quality monitoring across the country.100 Analytical capability
for water quality has been enhanced significantly over the last couple of years.
Currently there are a number of agencies101 with good laboratory facilities that are
equipped with modern sophisticated instruments, but a general lack of good quality
analytical facilities are remains. This is mostly due to the absence or shortage of
properly trained staff. 102 The organisational structure of the DoE needs further
decentralisation and needs to be provided with adequate resource to procure the
various equipment and tools for regular monitoring of water quality at selected
locations. 103 In addition, a statistical database of key water variables along with
measurable and meaningful indicators should be created and made easily available to
public. The capacity building within the DoE should be addressed to enforce the
ECA 1995 and the ECR 1997. This thesis suggests that the DoE, under the MoEF,
should be strengthened and upgraded with an adequate number of qualified technical
personnel to carry out the tasks.
Although much progress has been made, and a large number of rules and regulations
have been framed and developed over the past decade, there is a lack of capacity to
enforce them and lack of skills in taking appropriate action to ensure that inland
water pollution issues are addressed properly. There are apparent overlappings in the
mandates of different institutions in developing inland water policies, and major
agencies active in the water sector have relevant skills shortages. Current legal
frameworks require all concerned ministries and implementing agencies 104 to
conform to inland water pollution rules and standards. However, without a strong
DoE and proper resources, the quality of inland water cannot be certain.
Most of the organisation and water-related legislation in Bangladesh mainly adopts a
command-and-control approach, that is, a top-down approach. In this approach, most
100
Kazi Matin Ahmed, ‘Groundwater Contamination in Bangladesh’ in R Quentin Grafton and Karren
Hussey (eds), Water Resources Planning and Management (Cambridge University Press, 2011) 529,
554.
101
Bangladesh Council for Scientific and Industrial Research (BCSIR), Department of Public Health
Engineering (DPHE), Bangladesh Agricultural Research Institute (BARI).
102
Ahmed, above n 100, 554–555.
103
Khandaker Mainuddin, ‘Environmental Governance in Bangladesh’ (02 February 2013) 127, 150
<http://pub.iges.or.jp/modules/envirolib/upload/817/attach/eng_part3.pdf>.
104
Major agencies are BWDB, LGED and DWASA.
191
of the initiatives come from higher officials without taking into the opinion of
stakeholders. In Bangladesh, law making processes are dominated by an
authoritarian approach, which means that law is not an instrument of social
engineering for the people.105 Table 6.2 presents a summary of key responsibilities of
different ministries and major government organisations who are involved in
different capacities in relation to inland water. In the absence of clearly defined tasks
of these organisations in order to control inland water pollution, overlapping of
responsibilities within these agencies often lead to a blame culture.106
Table 6.2: Responsibilities of Major Government Organisations to Control Inland
Water Pollution
Organisation
Responsibilities in inland water pollution control
MoEF
Apex body to formulate water-related policies and
regulations.
NWRC
Responsible for coordinating all aspects of water management
and operates through its Executive Committee.
DoE
Setting WQS for particular uses of water and for discharge to
water bodies; conservation, improvement and monitoring of
overall environmental quality; establishing regulations and
guidelines for activities that affect the environment; control
and mitigation of industrial pollution of the environment;
reviewing EIAs and managing the environmental clearance
process and promoting environmental awareness.
Dhaka Water
Supply and
Sewerage Authority
(DWASA)
Providing pure water to Dhaka dwellers, regular disposal of
sewage and storm water disposal.
Ministry of
Industries (MOI)
Compliance with inland water pollution regulations within
small and large-scale industries.
BWDB
Coordination and implementation of NWMP.
WARPO
Exclusive institutions for macro-level inland water resource
planning.
IWM
Perform the entire mathematical water modelling task in
Bangladesh.
105
Md Saiful Karim, ‘Implementation of the MARPOL Convention in Bangladesh’ (2009) 6
Macquarie Journal of International & Comparative Environmental Law 51, 80.
106
World Bank, above n 97.
192
Close to 40 different agencies and organisations are involved in the water sector. The
NWPo highlights that the governance and management of the water resources require
a great deal of coordination between existing institutions.107 The policy recommends
two important principles for institutional restructuring and strengthening. 108 The
policy also recognises the importance of an appropriate legislative framework for
effective implementation of the water policy. The NWPo provides the basic
framework for the formulation of the NWMP and urges the government to enact a
National Water Code, revising and consolidating the laws governing ownership and
appropriation, development and utilisation, conservation and protection of inland
water resources.109
Institutional arrangements in Bangladesh have been established by legislation that
provides the basic operational framework for particularly government institutions to
be involved in legislation, regulation and operational aspects. Water legislation has
two basic functions: conferring necessary powers over water and land to the
government, while preserving or granting such rights to individual users in
consistent with the goals of the country; and establishing a basic administrative
framework and institutions to execute the various functions assigned. Responsibility
for water resources development lies largely with the BWDB in the MoWR.
Currently, 13 different ministries along with 35 government organisations have been
identified as working for the development of the water sector. The main agencies and
their main area of responsibilities are as follows.
F The National Economic Council (NEC)
This is the highest executive body of the government involved in the national policy
making and planning process. This council is responsible for policy decisions on the
basis of recommendations from the Executive Committee of the National Economic
Council (ECNEC).110
107
Government of the People’s Republic of Bangladesh, above n 16, 19.
108
First, there should be separation of policy, planning and regulatory functions at each level of
government. Second, each institution must be held accountable for financial and operational
performance individually.
109
Rashid, above n 9, 100.
110
Government of the People’ s Republic of Bangladesh, ‘Rio + 20: National Report on Sustainable
Development’ (Report, Ministry of Environment and Forest, May 2012) 9.
193
G The National Water Resources Council (NWRC)
This is the highest body for the formulation of water policy and ensuring interagency
coordination. This high powered council consists of ministers from respective
ministries and is chaired by the Prime Minister.111 The NWRC coordinate all water
resources management activities in the country. Particularly, it formulates policy on
different aspects of water resource management and provides directions for optimal
development and utilisation of the national water resources. The council is also
responsible for overseeing the preparation and implementation of the NWMP. In
addition, the council provides directions on the development of efficient institutions
for managing the water resources and appropriate coordination among different
water sector agencies.112
H The Ministry of Environment and Forest (MoEF)
The Environment Pollution Control Ordinance (EPCO) 1977 reconstituted the board
and renamed it the Environmental Pollution Control Board with a similar mandate to
that detailed in the 1970 ordinance. However, the jurisdiction of the board was
extended beyond permitting officers to inspect buildings and land, to allow them to
inspect and test any wastes, air, water, soil, plants and materials of the disposal
system.113 Until 1977, the Department of Public Health Engineering (DPHE) and the
local government bodies were the only institutions at government level responsible
for environmental management. This placement of environmental responsibility
within the jurisdiction of a public health department indicates that environmental
problems are treated as peripheral to the more important problems of public health
and are framed in terms of detriment to public health.
The Environmental Pollution Control Board was assisted by a ‘Pollution Control
Cell’ to specifically focus on the pollution control activities of the board, from the
beginning. Subsequently, the responsibilities of the Pollution Control Cell were
enhanced and ultimately it grew into the Department of Environmental Pollution
Control in 1985, which was renamed as the DoE in 1989. During the same year, the
111
Rashid Faruqee, ‘Bangladesh Water Sector Review’ (Report, Asian Development Bank, November
2003) 64.
112
Government of the People’s Republic of Bangladesh, above n 16, 19.
113
Bangladesh Gazette (Government of the People’s Republic of Bangladesh, 1977).
194
government abolished the Environmental Pollution Control Board and established a
separate MoEF under the central government for the purpose of planning, promoting,
coordinating and overseeing the implementation of emerging environmental related
matters in Bangladesh. Since the creation of MoEF, the DoE became the main
organisation for environmental management and pollution control in Bangladesh.114
The MoEF was created to increase the capacity of the government to deal with
environmental problems and the DoE became the technical arm for environmental
planning, management and monitoring. The objectives of the DoE include SD of the
country, conservation of natural resources and a paradigm shift in the government’s
thinking from short-term pollution control to creating a long-term meaningful living
environment for all citizens. The government expanded the mandate of DoE to
include a stronger role in the environmental impact assessment and in formulating
guidelines and advising line agencies, but still focuses primarily on pollution control
that had existed since the 1970s. The reconstruction of the DoE was, for the most
part, a structural change that did not do much to improve the environmental
management of the country. Both the MoEF and the DoE lack not only equipment
but also suffer a shortage of expert personnel.
I
The Ministry of Water Resources (MoWR)
The Ministry is responsible for all aspects of water resources, including the
expansion of irrigated areas, water conservation, use of surface and groundwater and
river management. 115 The Ministry is also accountable for processing matters
relating to treaties and agreements with other countries and world bodies in the field
of water development and management. Moreover, it is accountable for formulation
of a framework for institutional reforms to guide all water sector related activities
and will:

exercise water allocation power in identified scarcity zones on the basis of
specified priorities and determine the priority for allocating water during
critical periods;
114
Government of the People’ s Republic of Bangladesh, above n 110, 9.
115
Government of the People’s Republic of Bangladesh, above n 85, 18.
195

sustain shallow groundwater aquifers, regulating the extraction of water in
identified scarcity zones with full public knowledge;

prepare specific drought monitoring and contingency plans for each
hydrological region experiencing recurrent seasonal shortage of water;

empower local government to allocate water in scarcity zones, monitor the
water regimes and enforce the regulations;

confer water rights on private and community bodies to provide secure,
defensible and enforceable rights to ground/surfacewater;

ensure the minimum requirement of stream flows for maintaining the
conveyance of the channel.116
J
Water Resources Planning Organisation (WARPO)
Under the MoWR, the government created the MPO in 1983 to formulate a
prospective plan (1985–2005) for water resources development. The MPO prepared
a draft water code and outlined proposals to institutionalise the process of planning
and development of water resources.117 The MPO was restructured as the WARPO in
1991 with the mandate to evolve national policies and strategies for utilisation and
conservation of water by all.118 WARPO was set up under the Water Resource Act
1992. 119 This act and NWPo 1999 assigned various responsibilities 120 to the
organisation. WARPO is the exclusive government institution for macro-level inland
water resource planning and acts as the secretariat of the Executive Committee of the
National Water Resources Council (ECNWRC). This organisation has developed a
national water resources database and periodically updates it.
116
Government of the People’s Republic of Bangladesh, above n 16, 8.
117
World Bank, above n 15.
118
Government of the People’s Republic of Bangladesh, above n 16, 5.
119
Act xii of 1992 provides the legal framework for the organisation.
120
Principal responsibilities fall into two categories, namely core services and periodic services. Core
services includes i) setting up and updating the National Water Resources Database (NWRD), ii)
functioning as ‘clearing house’ for all water sector projects identified by different agencies and
reporting to the ECNWRC on their conformity to the NWMP, iii) responding to the NWRC and
ECNWRC request for information and advice .Periodic services are: i) preparing and periodically
updating NWMP, ii) performing any other functions as may be assigned by the government, iii)
advising the ECNWRC on policy, planning and regulatory matters of water resources.
196
WARPO is the mandated planning agency for water resource management and has
the responsibility to advise on policy planning and regulatory matters concerning
water resources management. It is also emphasised in the NWP that the activity of
WARPO should be complementary to the role of the DoE and active cooperation
between the two organisations needs to be strengthened. The involvement of
WARPO in pre-screening EIAs for water sector projects, in advance of submission to
DoE for final clearance, would relieve part of the burden of the DoE. In addition to
its contribution in such clearing-house activities, the WARPO Environmental Section
is being prepared to play an active role in raising environmental standards as a whole
in the water sector. To this end, WARPO is expected to progressively undertake the
following functions:

participation in the development of the NWMP and subsequent updates to
ensure fulfilment of NWP environmental objectives;

in collaboration with DoE and other line agencies, develop environmental
standards and guidelines relevant to the water sector, in conformity with the
NWP and the various laws and regulations;

monitoring the efficacy of water sector standards and guidelines in achieving
the aims and objectives of the NWP and NWMP and as necessary
recommending improvements;

raising environmental awareness of water-related issues through relevant
agencies to wider civil society;

advising on environmental impacts of the portfolio of projects included in
other government departments with an interest in environmental management
of water resources, such as the Department of Fisheries (DoF), Forest
Department (FD).
From its position of neutrality, WARPO is the instigator of sector-wide IWRM
programmes covering multidisciplinary and inter-sectoral skill development. 121 In
addition, the government has to provide continuous support to the capacity
development of all its organisations through in-service training programmes. Most
121
Government of the People’s Republic of Bangladesh, ‘National Water Management Plan’ (Report
Vol 5, Ministry of Water Resources, 2001) 12.
197
actions are seen as short-term requirements to initiate as quickly as possible the
development of the water sector institutions, whereas training and capacity building
of local government institutions are seen as continuing in the long term. As the apex
planning body in the water sector, WARPO plays a pivotal role in ensuring the
cooperation of the other organisations. Apart from those government ministries and
organisations, there are many NGOs122 working in Bangladesh with environmental
interests. A few are functioning with specific environmental interests that relate to
the water sector.
K Implementing Agencies
Water policies and strategies reflect a nation’s priorities and set up the long-term
ability of a nation to manage its water resources. The institutions are the tools for
devising or setting those priorities, but unfortunately, the institutions that deal with
water in Bangladesh and water resources have serious flaws.123
8 Bangladesh Water Development Board (BWDB)
The BWDB is the key institution responsible for future management of water
resources in the country.124 Their responsibilities include the planning and execution
of medium and large-scale water resource development projects, river dredging,
irrigation, flood forecasting and data collection. 125 The original mandate of the
organisation was proven inappropriate with time because of the economic, social and
demographic changes. The BWDB is the predecessor of the erstwhile EPWAPDA,
which started operation in 1959. After the independence of Bangladesh, the authority
was restructured in 1972 into two different organisations to deal with water and
power separately. The BWDB was created under the Bangladesh Water and Power
Development Boards Order 1972126 as a fully autonomous organisation.
122
These include: the International Union for the Conservation of Nature (IUCN), National EIA
Association, International Centre for Living Aquatic Resource Management (ICLARM), Surfacewater
Modelling Centre (SWMC), Environment and GIS Support for Water Sector Planning Project (EGIS),
and the Bangladesh Environmental Lawyers Association (BELA). Apart from being a significant
lobbying body, BELA has also provided assistance with drafting environmental legislation.
123
Mahesh Chandra Chaturvedy, Ganga-Brahmaputra-Meghna Waters Advances in Development and
Management (CRC Press Taylor and Francis Group, 2013) 180.
124
Faruqee, above n 111, 27.
125
Government of the People’s Republic of Bangladesh, above n 85, 18.
126
Presidential Order No 59 of 1972.
198
The BWDB was established in 1972 and was reconstituted in 2000 under a new act
and aligns its responsibilities to those set out in the NWPo. The functions of the
board include construction and maintenance of water management structures and the
establishment and training of water user associations and other stakeholder
organisations. This organisation is responsible for the development and management
of the river systems, which is encouraged to operate on a regional basis. In addition,
nationwide groundwater monitoring and management responsibility also belongs to
this board.
9 Local Government Engineering Department (LGED)
The LGED is entrusted for planning and implementation of local level, small-scale
water resources infrastructure development. The broad objectives of the LGED’s
development activities are to improve the socioeconomic condition of the country
through supply of infrastructures at local level and capacity building of the
stakeholders. The responsibility of this department includes the management of local
water resources, water supply, urban and peri-urban services.
Water is an ultimate necessity in many ways for satisfying basic human needs, food
production, industrial uses, energy production and maintenance of regional and
global ecosystems.127 Having water pollution laws and institutions in place has not
been able to prevent the growing pollution and contamination of water sources,
which in effect make much of the available water resources unusable. 128 In recent
years, the reckless exploitation of groundwater and the consequent depletion and
contamination of aquifers have begun to cause serious concern.129 The contemporary
and long-term needs of humans as well as the ecological community must be
addressed and all available preventive measures need to be taken.
A more efficient use of available water resources is not possible without: 1) the
technical competence to compensate for variations in water availability over time
and space, 2) the presence of geological and topographical features for stored water
to be economically and safely retrieved and 3) the ability to manage shared water
127
P C Bansil, Water Management in India (Concept Publishing Company, 2004) 27.
128
Ramaswamy R Iyer, Towards Water Wisdom Limits, Justice, Harmony (Sage Publications, 2007)
18.
129
Ibid 58.
199
resources successfully, including a way of including the true cost of water in the
price people pay for it. 130 Today, the reality is that renewable inland water
availability is finite, while population growth will continuously increase water
demand; this is starting to cause serious concern in developing nations. 131 Since the
late 1990s, there has been growing awareness of the need for a more integrated,
multisectoral approach to inland water management. It is increasingly felt that a new
approach to planning, construction, operation and maintenance as well as
management is required to address the water issues of Bangladesh. Particularly,
participation of all stakeholders is considered to be crucial in order to ensure the
long-term integration of the social and environmental considerations.
IV EXISTING CHALLENGES OF INLAND WATER POLLUTION
Bangladesh is one of the largest deltas of the world, formed by its complex river
system and situated in the tropical zone. Water regulates the social life and economic
activities, facilitates biodiversity, maintains environmental balance and to a great
extent supports mass people to have access to common property resources. 132
Agriculture generates about 60% of the total employment and shares 36% of the
GDP of Bangladesh. The water sector has become key to meeting the food
requirements of a faster growing population and for overall national development of
the country. The dry season scarcity and abundance of water in the rainy season
bring huge suffering for Bangladesh. The yearly cycle of both flood and drought has
always made water management critical and agricultural production risky. 133 In
addition, a major part of inland water is a transboundary resource and a serious
complication arises in common rivers, shared lakes and other water bodies.
130
Peter H Gleick, ‘An Introduction to Global Freshwater Issues’ in Peter H Gleick (ed), Water in
Crisis A guide to the world’s Fresh Water Resources (1993) 3, 9.
131
Ibid.
132
M A Quassem, ‘Water Institutions-Bangladesh Experience’ (18 October 2011) Water Resource
Planning Organisation < http://www.citeseerx.ist.psu.edu/viewdoc/download>.
133
Nasima Tanveer Chowdhury, ‘The Economic Value of water in the Ganges-Brahmaputra-Meghna
(GBM) River Basin’ (09 January 2012) <http://at www.beijer.kva.se>.
200
L Scarcity of Available Water
Bangladesh has an abundance of water on a per capita, per annum basis. 134 It is
declining due to increasing population but the availability will still be 7679 million
m³ by 2025. Water is considered an essential component of vital ecosystems135 and a
key determinant of the character and health of those ecosystems. 136 Scarcity or
decreasing quality of water has a negative impact on all aspects of human life.
Therefore, the transboundary water resources are a valuable natural asset to all
riparian states, in terms of maintaining the sates’ economic and social wellbeing.
Adequate maintenance of freshwater resources is very important for ecological
welfare. 137 Daily uses of water and consequences of its scarcity for individuals,
society and regional ecosystems show that water is essential for life. 138 The water
scarcities have already led to direct violent conflict over this limited environmental
resource.139
134
Qazi Kholiquzzaman Ahmad, ‘Climate Change and Freshwater Resources of Bangladesh’ in
Moazzem Hossain and Eliyathamby Selvanathan (eds), Climate Change and Growth in Asia ( Edward
Elgar, 2011) 62, 66.
135
Thomas Naff, ‘Islamic Law and the Politics of Water’ in Joseph W Dillapenna and Joyeeta Gupta
(eds), The Evaluation of the Law and Politics of Water (Springer, 2008) 37.
136
An ecosystem is a natural unit comprising plants, animals and micro-organisms (biotic factors) in
an area functioning together with all of the non-living physical (abiotic) factors of the environment.
137
Md. Jakerul Abedin, ‘The Ganga-Brahmaputra-Meghna (GBM) Watershed Governance: Potential
for a Multilateral Regulatory and Integrated Management under International Law’ (PhD Thesis,
Macquarie University, 2013), 63.
138
Samuel P Huston, Management of Water Scarcity and the Application of Conflict Resolution:
Cases of India and China (Masters Thesis, University of Bradford, 2006).
139
Murshed Ahmed, ‘Regional Co-operation on Transboundary Water Resources Management:
Opportunities and Challenges’ (Paper presented at the Bangladesh Economic Association Conference,
Dhaka, Bangladesh, 2007) 9.
201
Table 6.3: Population Growth and Annual Per Capita Water Availability140
Year
Population in millions
Water availability (annual) m³
1991
111
12162
2000
131
10305
2010
150
9000
2020
170
7941
2025
176
7670
The above table reveals the fact that water is scare now and will be very scarce in the
coming years. 141 The availability of inland water, in quantity and quality, is
becoming scarce and creating socioeconomic and political problems.142 Due to largescale groundwater abstractions and inadequate replenishment, irrigation and
household water shortage pose serious problems in the NW region and other dry
parts of the country. In urban centres, particularly in Dhaka (NC region) clean
drinking water availability is a major challenge because of the ever-increasing
population, declining groundwater accessibility and pollution of surrounding river
water. The SW region of the country faces severe freshwater shortages during lean
season because of little or no diversion of water from the Ganges.143 During the lean
season (1 January to 31 May) Bangladesh suffers from scarcity of water due to low
flows through the transboundary rivers because of upper riparians undue abstractions.
Riparian countries are not harnessing the scope of generating water flows or
minimising the wastages of water and also not maintaining SD of common water
resource bases. They are using the scope to meet their own demand without
considering the resource vulnerability, environmental degradation and norms of
international practice.
140
Q K Ahmad et al, ‘GBM Regional Water Vision: Bangladesh Perspective’ in Q K Ahmad et al
(eds), Ganges- Brahmaputra- Meghna Region A Framework for Sustainable Development (The
University Press Limited, 2001) 31, 50.
141
The water availability of Bangladesh was briefly highlighted in Chapter 2 IV.
142
Ahmed, above n 139, 3.
143
Ahmad, above n 134, 67.
202
M Water-Sharing Problem
A water-sharing problem exists all over the world but it is becoming life threatening
in Bangladesh because a huge number of people are dependent on a limited available
water source. Bangladesh and neighbouring India have a long history of disputes
over water-sharing. It started with the Farakka barrage issue of the Ganges water
flow and further aggravated recently with the distribution of water of the river Teesta
and construction of a dam named Tipaimukh. Since 1975, Bangladesh was trying to
raise water-sharing issues to the regional and international level to create a guideline
for the equitable sharing of water from transboundary water resources with India.
However, due to the lack of binding legal instruments, it was suggested to solve the
problem amicably and bilaterally. However, most bilateral negotiations have been
unsuccessful because of imbalanced bargaining power 144 between the negotiating
states. In many cases, a bilateral treaty is ignored by the upstream users due to
geographically privileged position and water unavailability reason. Bangladesh is
located at the bottom of the second largest hydraulic region in the world. 145 The
country is extremely vulnerable to both floods (during the rainy season) and scarcity
of water (during the lean season) and most badly affected on both counts. Protecting
inland water from pollution both within the country as well as regional context is
becoming increasingly complex because of water-sharing impacts.
N Regulatory Challenges
International legal instruments provide some guidance to solve most of the
international multidisciplinary issues where the state parties agree to follow, as they
are legally bound to follow those agreements. Unfortunately, there are no
international and legally binding instruments to guide the transboundary common
water resources. The International Convention on the Non-Navigational Uses of
International Watercourses 1997 is an international instrument without the power of
implementation. It is now globally146 recognised that in the case of a transboundary
river, each riparian has the right to an equitable share of its waters. This is also
144
Aaron T Wolf, Regional Water Cooperation as Confidence Building: Water Management as a
Strategy for Peace (Adelphi Research, 2004), 9. ‘Power’ in regional hydropolitics can include riparian
position, with an upstream riparian having relatively more economic, military, and political strength.
145
Ahmad, above n 134, 73.
146
Art 4 of Helsinky Rules, UN Convention 1997.
203
recognised147 in the 30 year treaty on Ganges water-sharing between Bangladesh and
India (1996).
Different kinds of benefits can be derived from transboundary rivers that include:
from the river (increased food and energy production), because of the river (reduced
geopolitical tensions, enhanced flood management), beyond the river (catalysing
wider cooperation and economic integration) and to the river (improved water
quality and conserved biodiversity). River waters are to be utilised for economic,
social, transportation and household purposes. Rivers can be a perpetual source of
benefit if they remain healthy.148
At the national level, there are national policies, plans, laws and institutions for water
governance that are limited to national water resources management and are not fully
conducive to IWRM planning in respect to water and related sources. At the regional
level, there is no regional or multilateral agreement in the riparian countries that
could give guidance for the protection of common water resources from pollution.
There are some bilateral agreements that do not always address the common interests
for either the resource itself and the regional environment or the riparian states. It is
clearly evident that there are regulatory limitations in the protection of transboundary
waters from pollution. Therefore, it is argued that a regulatory framework is much
needed among the riparian states to manage and share transboundary waters.
O Potential Future Challenges in a Changing Climate
Bangladesh is at the forefront of adverse climate change impacts. 149 Since the
country already suffers from multiple stresses,150 it is believed to deteriorate further
by the impact of climate change. Despite the availability of reliable data, it can be
stated that consequent to the rising sea level by global warming, huge areas of
Bangladesh will be permanently inundated and this is a threat to the existence of
147
Article 9 of the Treaty states: ‘Guided by the principles of equity, fairness and no herm to either
party, both the Governments agree to conclude water sharing Treaty/Agreements with regard to other
common rivers’.
148
Ahmad, above n 134, 75.
149
Ibid 64.
150
Disadvantageous geographical location and climate reality, deltaic country with mighty river crisscrossing the country, high density of population and widespread poverty, policy and institutional
weaknesses, shortage of resources and lack of technological advancement.
204
many people in the country.151 The severity depends on the level of global warming
and sea level rising. The country is experiencing extreme weather events more
frequently, which are undoubtedly related to climate change. For example, in 2008,
Bangladesh suffered a severity of reduced rainfall during the rainy season (June to
August). The country was devastated by two floods and a severe cyclone in 2007 and
another overwhelming cyclone in 2009.152
The impact of climate change is visible prominently in the water sector. Both
quantity and quality of inland water resources are adversely affected in a major way
through climate change.153 The impacts of climate change in relation to inland water
system reliability are adversely affected by various forms of water pollution
intensified by high temperatures, increased precipitation intensity and longer periods
of low flows. Also, the functions and operation of existing water infrastructures are
affected by climate change.154
151
Sonja Butzengeiger, and Britta Horstmann, Sea-Level Rise in Bangladesh and the Netherlands One
Phenomenon Many Consequences (Germanwatch, 2004) 6.
152
Ahmad, above n 134, 65.
153
Ibid.
154
Ibid 66.
205
Table 6.4: Implications of Climate Change for the Water Sector155
Sector
Sector level
Physical and
biophysical
Socioeconomic and
political
Water
resources
Change in water volume
(timing and flow).
Increase in salinity in the
inland water bodies.
Decrease in water
quality.
Uncertainty of
availability of
water, reduction in
water quality and
access.
Availability decline
in access to food
and fisheries.
Agriculture
Reduction in cereal crop
yields. Affect farm
animals (quantity and
quality of output
produced.
Increase
desertification,
loss of soil
fertility.
Food crisis,
malnutrition.
Extreme
weather
events
Higher frequency and
severity of extreme
weather events likely to
damage infrastructure.
Interrupt daily economic
activities, injury and
deaths of humans and
animals.
Drastic changes in
physical,
biophysical
conditions.
High costs of
rehabilitation,
adaptation and
mitigation. Loss of
livelihood and
income.
The issues of water and climate change intersect each other. Climate change
influences the Earth’s ecosystems and, particularly through the main intermediary of
water, the livelihoods and wellbeing of people. 156 Climate change not only poses
impacts to water resources directly but also indirectly through its influencing other
drivers.157 It can directly affect the hydrological cycle158 and indirectly may alter the
timing magnitude and duration of precipitation events, which can pose problems to
the sustainability of the water supply. 159 On the one hand, higher intensity
155
M Adil Khan, ‘Climate Change, Vulnerabilities and South Asia: Issues, Challenges and Options’ in
Moazzem Hossain and Eliyathamby Selvanathan (eds), Climate Change and Growth in Asia (Edward
Elgar, 2011) 147, 152.
156
UN Water,
Climate
Change
<http://www.unwater.org/downloads>.
Adaptation
is
Mainly
about
Water
(2009)
157
Richard Connor et al, ‘Climate Change and Possible Futures’ (The UN World Water Development
Report No 3, UNESCO, 2009) 68.
158
The hydrological cycle is the movement of water in its various forms (vapour, liquid and solid)
through the Earth’s broad biophysical environment.
159
Connor et al, above n 157, 68–69.
206
precipitation may bring too much water that may cause floods, river erosion and
result in loss of life and infrastructure.160 On the other hand, low minimum flows can
affect water availability and quality. Further, global warming is likely to intensify the
global hydrological cycle with other substantial effects. 161 Sea level rise due to
global warming would have a serious effect on urban and regional water supply. In
2003, the United Nations Educational Scientific and Cultural Organisation
(UNESCO) World Water Assessment Programme Coordinator, Olcay Űnver stated:
Water is an integral component of climate change and the primary medium through which it
exibits its impacts. We must act now and act together, if we are rise to the challenges of
climate change to ensure long-term economic, environmental and social sustainability and
avert a global water crisis.162
In particular, some developing countries are experiencing increased vulnerability due
to climate change through increase frequency of floods, severe storms, droughts and
frequently changing sources of precipitation.163 Due to the impacts of climate change,
each country will face its own challenges and must determine the response process
on a short, medium and long-term basis. Adaptation to climate change impacts on
water resources require a long-term climate focused, coordinated management
approach at the local, national and regional level.164
Bangladesh is widely recognised as one of the countries most vulnerable to climate
change. Increased variability of temperature, rainfall and occurrence of natural
hazards are expected to affect the availability of both surface and groundwater. The
availability of surfacewater is very limited during the dry season; groundwater has
increasingly become an important source for irrigation, domestic and industrial
160
UNDP and SAARC, South Asia Environment Outlook 2009 (United Nations Environment
Programme, 2009) xiii-xiv.
161
Abedin, above n 137, 67.
162
UNESCO, Climate Change and Water An Overview From the World Water Development Report 3:
Water in a Changing World (UN World Water Assessment Programme, 2009) Foreword.
163
B G Verghese, ‘Towards an Eastern Himalayan Rivers Concord’ in Asit K Biswas and Tsuyoshi
Hashimoto (eds), Asian International Waters from Ganges- Brahmaputra to Mekong (Oxford
University Press, 1996) 25, 47.
164
UNESCO, ‘Briefing Note: Implications of Climate Change on Water’ (2009) 4.
207
purposes. Due to the overexploitation of groundwater, some environmental hazards
and a number of adverse effects165 have emerged in many areas of the country.
Overall, the gross amount available for human use and sustainable ecosystem can be
influenced by other factors, including pollution that makes water unfit for intended
use, climate change that has an impact on global and local water cycle or population
growth that directly impacts per capita availability. 166 In addition, the impact of
climate change on the use and supply of water resources and the demand for water
by different sectors and stakeholders is enormous. 167 Climate change impacts, in
particular, decreases in water availability, are likely to lead to conflicts of interests
among the users.
V OPPORTUNITIES TO PREVENT INLAND WATER POLLUTION
Cooperation on the transboundary water resources may reduce existing conflicts
between the riparian countries and contribute to the protection of inland water from
pollution. In some cases, the riparian countries share the water of transboundary
resources on volumetric water allocations where the issue of measurement is always
controversial. In shared water resources, cooperation among the riparians and the
relationship of volumetric water allocations and the sharing of benefits are very
important. The efficient, integrated, cooperative management of transboundary water
resources can yield major benefits for every single user.168 It is important to identify
the characteristics of transboundary water resources in deciding the preferable
opportunities of the riparians for future development. However, many national and
regional solutions depend upon strong political will and sustained commitments
from all the co-riparian countries. In attempts to optimise the potential uses of
165
There has been evidence of permanent depletion of groundwater levels in some locations,
particularly in Dhaka Metropolitan area where the average annual decline of water level is about 3
metres.
166
Philippe Cullet, Water Law, Poverty and Development Water Sector Reforms in India (Oxford
University Press, 2009) 9.
167
P Canelas de Castro, ‘Climate Change and Water Management: is EU Water Law Adapted to
Climate Change?’ in C A Brebbia and V Popov (eds), Water Resources Management VI (WIT Press,
2011) 827, 829.
168
Caudia W Sadoff and David Grey, ‘Beyond the River: the Benefits of Cooperation on International
Rivers’ (2002) 4 Water Policy 389, 389.
208
transboundary waters, certain types of options and management planning may be
looked for preferentially, both by external means and by the riparians themselves.169
Table 6.5: Types of Cooperation and Benefits of Transboundary Rivers
Types
Challenges
Opportunities
Increasing
benefits to
the river
Degraded water quality,
watersheds, wetlands and
biodiversity.
Improved water quality, river flow
characteristics, biodiversity and
overall sustainability.
Increasing
benefits from
the river
Increasing demand for
water, sub-optimal water
resource management and
development.
Improved water resources
management for hydropower and
agricultural production, environmental
conservation, water quality and
recreation.
Reducing
costs because
of the river
Tense regional relation,
political and economic
impacts.
Policy shift to cooperation and
development, reduced
dispute/conflicts risks and military
expenditure. Improved selfsufficiency to food and energy.
Increasing
benefits
beyond the
river
Regional fragmentation.
Integration of regional infrastructure
and trade.
For example, one country may severely need the water for agriculture while another
country may desperately be looking for hydropower electricity or seeking data. Since
water is a commodity of multipurpose, transboundary waters require a holistic
approach to development, utilisation and management. The multipurpose uses of
transboundary water may bring multiple potential benefits in environment, economic
development, regional integration, hydropower generation, data sharing, technology
transfer, increased trade and reduced military expenditure.170
169
David Phillips et al, ‘Transboundary Water Co-operation and a Tool for Conflict Prevention and
Broader Benefit Sharing’ (Global Development Studies No 4, Ministry for Foreign Affairs, Sweden,
2006) 12.
170
Ibid.
209
P Increase the Water Availability
Inadequacy of water during the lean season and plenty of water in the rainy season is
the major problem existing in Bangladesh. The shortage and abundance of water
creates all other problems and accelerates conflicts over inland water pollution.
There are scopes to increase the availability of water in the lean season through flow
augmentation; cooperation among the riparian countries for augmenting dry season’s
flows in the transboundary rivers needs to be given more emphasis. 171 Countries
need take a joint initiative to build water reservoirs with a mutual understanding it
can control water flow for the benefit of all riparian countries. The riparian countries
can address the longstanding water-related problems, including flood havoc,
desertification and flash flooding by following integrated and regulated water
management.172 For this purpose, countries need to cooperate with each other under
an integrated multilateral management plan to increase water availability. At the
country level, rainwater harvesting can be a potential source of freshwater and
increase water availability in Bangladesh. The country may initiate activities in
collecting rain water in ponds by promoting cooperative groups in rural areas and
also by establishing facilities in urban houses to tap rainwater.173
Q Right to Water and Equitable Utilisation of Water
Right to water and equitable allocation of transboundary water among the riparians
are always conflicting issues around the world. All states agree on one point, that
only riparian states (states across which or along which a river flows) have any legal
right, in the absence of any agreement, to use the water of a river, lake or other
surface source. 174 However, the patterns of claims and counterclaims to use
transboundary water diverge sharply based on the interest of the individual riparian
state. The uppermost riparian state always initially claims ‘absolute territorial
171
AQUASTAT, Bangladesh Prospect for Agricultural Water
<http://www.fao.org/nr/water/aquastat/countries/bangladesh/index.stm>.
Management
(2010)
172
‘Integrated Management a Must to Address Water Problems in S Asia’, The Daily Star (online), 10
July 2010 <http://www.thedailystar.net/newDesign/news-details.php?nid=146155>
173
Ahmad, above n 134, 72.
174
International Law Commission, draft articles on the law of Non-navigational Uses of International
Watercourses (draft arts II) art 4, Report of the 46th Meeting of the International Law Commission, 2
May–22 July, 1994.
210
sovereignty’.175 On the other hand, lower-riparian states generally open by claiming
a right to the ‘absolute integrity of the watercourse’.176 Commentators have further
explained that these claims:
are grounded in an individualistic and anarchical conception of international law in which
personal and egotistical interests are raised to the level of guiding principles and no solution
is offered for the conflicting interests of the upper and lower riparians. 177
The inappropriateness of both claims ensure that neither claim will prevail, although
the process of negotiating or otherwise resolving the dispute embodied in these
claims might last for decades. 178 The usual solution is found in a concept of
‘restricted sovereignty’ 179 that goes with ‘equitable utilisation’. 180 Each state’s
sovereignty over its water resources is restricted by the obligation not to impose
unreasonable injury on another state. Better evidence of the customary law of
internationally shared waters is found in arbitral and judicial decisions, which are
unanimously in favour of the rule of restricted sovereignty. The restricted
sovereignty concept was upheld by the statement of the PCIJ181 in the case relating to
the territorial jurisdiction of the international commission of the River Oder:182
When consideration is given to the manner in which states have regarded the concrete
situations arising out of the fact that a single waterway traverses or separates the territory of
more than one state and the possibility of fulfilling the requirements of justice and the
considerations of utility which this fact places in relief, it is at once seen that a solution of the
problem has been sought not in the idea of a right passage in favour of upstream states, but in
that of a community of interest of riparian states. This community of interest in a
175
By this claim, the upper riparian state asserts a right to do whatever it chooses with the water
regardless of its effect on other riparian states.
176
By this claim, the lower riparian states claim that upper riparian states can do nothing that affects
the quantity or quality of water that flows down the watercourse. Detailed discussed in Chapter 4 III.
177
Friedrich Joseph Berber, Rivers in International Law (Stevens & Sons, 1959) 77–78.
178
Joseph W Dellapenna, ‘The Customary International Law of Transboundary Fresh Waters’ (2011)
1(3–4) International Journal of Global Issues 264, 270.
179
Discussed in Chapter 4 III.
180
By this claim both upper and lower riparians of the same stream often are the first to assert a
theory of restricted sovereignty under which each state recognises the right of all riparians to use
water from a common source so long as their uses do not interfere unreasonably with uses in other
riparian states.
181
The predecessor institution to the International Court of Justice.
182
Permanent Commission of the River Oder Case (1929) PCIJ, serial A No 23- Series C no 17–11
(Judgement of September 1929) 27.
211
transboundary river becomes the basis of a common legal right, the essential features of
which are the perfect equality of all riparian states in the use of the whole course of the river
and exclusion of any preferential privileges of any riparian state in relation to others.’
International customary rules and obligations regarding the right to water and
equitable allocation of water are being ignored. Although states are responsible not
to violate the other states’ rights, this principle is ignored. Inadequacy of available
water is one of the reasons of this situation. This problem can be overcome or the
situation may be improved if the riparian states manage the transboundary water
together. In order to achieve this, a legally binding multilateral regulatory framework
and an institutional management mechanism is necessary.
The concept of equitable utilisation is a flexible doctrine that calls for the exercise of
an informed judgement on a consideration of many factors to secure a just and
equitable allocation.183 To utilise the water in a common source, it is not simply who
got to the river first or who is upstream or downstream, but what is equitable and
reasonable under the circumstances. The doctrine is flexible in a sense that equitable
apportionment may change over time and no state has an inherently superior
claim.184 The principle of equitable utilisation was well affirmed in a case decided by
the US Supreme Court in 1931.185 Justice Oliver Wendell Holmes stated:
A river is more than an amenity, it is a treasure. It offers a necessity of life that must be
rationed among those who have power over it. New York has the physical power to cut off
all the water within its jurisdiction. However, clearly the exercise of such a power to the
destruction of the interest of lower states could not be tolerated. And on the other hand
equally little could New Jersey be permitted to require New York to give up its power
altogether in order that the river might come down to it undiminished. Both states have real
and substantial interests in the river that must be reconciled as best they may. The different
traditions and practices in different parts of the country may lead to varying results but the
effort always is to secure an equitable apportionment without quibbling over formulas. 186
Upstream states cannot cut off all the water from the downstream states, and the
latter cannot require the former to give up its power altogether. Justice Holmes
183
Colorado v New Mexico (1982) 459 US 176, 183.
184
Stephen C Mccaffrey, The Law of International Watercourses (Oxford University Press, 2nd ed,
2007) 388.
185
New Jersey v New York (1931) 283 US 336.
186
Ibid 342–43.
212
effectively rejects both the absolute territorial sovereignty and the absolute territorial
integrity theories187 and recognises that both states have real and substantial interests
and these interests must be reconciled as best they may. It is not to simply declare
one state the absolute winner and the other the absolute loser.188 The object of this
reconciliation process is always securing an equitable apportionment.
R Water Management Through Regional Development Strategies
The logical progression of events from Mar del Plata to Marseille has prioritised
water action on the global agenda and suggested certain policy actions to mitigate
the global water crisis. 189 These forums have urged for better cooperation among
states sharing transboundary water and encouraged the UN to take the lead in liaising,
arbitrating and collaborating with other organisations involved in the water sector.190
The outcomes bring awareness as to which individuals, society, national and
international organisations are expected to act individually or collectively to
maintain water resources quality for healthy and sustainable ecosystems all over the
world. Sustainable water governance requires a long-term vision, a far-reaching
development plan, sustainable social justice, pragmatic political leadership and
consistent management approach.191 Politicians and bureaucrats are responsible, as
the leading negotiators, for putting the management and conservation of water
resources on regional and global agendas for development.
Regional cooperation is necessary to best address the scarcity of water resources.
Riparian states need to establish an integrated and joint water management plan,
including surveillance and early warning systems. Preparing a contingency plan and
the regular exchange of data, information, knowledge and technology can accelerate
this process.192 The national water laws and policies are encouraged and guided by
the relevant international legal instruments. These domestic instruments have
incorporated basic concepts of IWRM and accepted some other internationally
187
Discussed in Chapter 3 IV C 4.
188
Mccaffrey, above n 185, 386.
189
Discussed in Chapter 5 III C.
190
Abedin, above n 137, 111.
191
Ahmed, above n 139, 5.
192
Food and Agriculture Organisation, Treaties Concerning the Non-Navigational Uses of
International Watercourses-Africa (FAO of the United Nations, Rome, 1997) 29.
213
accepted fundamental principles of international watercourses law. The largest part
of Bangladesh’s inland water resources is contributed by transboundary rivers that
flow into or through its neighbours, namely, India, Nepal and Myanmar. This
geopolitical reality suggests that no meaningful or optimal national water resource
planning is possible in relation to these rivers without bilateral or regional
collaboration. 193 Bangladesh, as a lower-riparian state, has significant interest in
managing transboundary water for its social and economic sustainability. This thesis
argues that Bangladesh needs to be integrated regionally with stakeholder co-riparian
states for the sustainable management and optimal utilisation of transboundary water
to meet its present and future water demands 194 and to protect inland water from
pollution.
VI WATER-SHARING TREATIES BETWEEN INDIA AND BANGLADESH
Water-sharing disputes have dominated and strained Bangladesh’s relationship with
India for more than half a century.195 More than two-thirds of the total land area of
Bangladesh are covered by the combined basins of three enormous rivers, while only
8% of their drainage area lies within the country’s territory. 196 More than 90% of the
drainage area is subject to the sovereign control of other co-riparian states. As a
lower-riparian, it is therefore heavily vulnerable to the downstream effects of India’s
water management effort.
The Ganges is one of the most important transboundary water resources and plays a
crucial role in the South Asian region’s economy, ecology and people’s lives and
livelihoods. 197 The Ganges water-sharing disputes date back to 1951 when India
planned to construct a barrage on the Ganges River at Farakka, a few kilometres
193
Mahesh Chandra Chaturvedi, India’s Waters Advances in Development and Management (CRC
Press, 2012) 66.
194
Abedin, above n 137, 84.
195
David Lewis, Bangladesh Politics, Economy and Civil Society (Cambridge University Press, 2011)
173.
196
Shapan Adnan, ‘Intellectual Critiques, People’s Resistance and Inter-riparian Contestations:
Constrains to the Power of the State Regarding Flood Water Control and water Management in
Ganges-Brahmaputra-Meghna Delta of Bangladesh’ in Devleena Ghosh, Heather Goodall and
Stephanie Hemelryk Donald (eds), Water, Sovereignty and Borders in Asia and Oceania (Routledge,
2009) 106, 104–24.
197
Mosharefa Shahjahan, Integrated River Basin Management for the Ganges: Lessons from the
Murray Darling and Mekong River Basins (A Bangladesh Perspective) (Phd Thesis, University of
Adelaide, 2008) 137.
214
upstream of the then East Pakistan (presently Bangladesh). India constructed a
barrage at Farakka that was designed to divert water into a tributary feeding the
increasingly silted Calcutta Port (presently Kolkata). The scheme quickly became a
source of political tension between the two countries. Despite several protests from
the erstwhile Pakistan, India started the construction of the barrage in 1962, which
was completed in 1971. A decade (1961–1971) of dialogue and discussion between
India and Pakistan failed due to mistrust between the two countries. 198 In 1971,
Bangladesh became independent and as a sovereign state signed a 25-year ‘Treaty of
Friendship’ with India that includes some provisions to share and develop water
resources.199
The India-Bangladesh JRC was established in 1972 to develop the common water
resources between the two countries on a mutual basis. 200 Bangladesh agreed to
allow India to carry out a test run of the Farakka barrage for a 40-day period from 21
April to 31 May 1975.201 Operation of the barrage was not well received in either
India or in Bangladesh. Despite the dissatisfaction in Bangladesh and within its own
territory, India continued the operation of the barrage even after the test run period.
In January 1976, while India continued unilateral withdrawal prior to the lean season,
the government of Bangladesh lodged a formal protest with India and later took the
issue to the UN202 and the negotiations moved from the bilateral to the international
level.
Since the commissioning of the barrage in 1975, the Ganges flow measured at the
Hardinge Bridge point in Bangladesh has decreased substantially during the dry
season (January to May)203 and the barrage is causing huge environmental damage.
In response, the governments of Bangladesh and India have signed two water treaties
198
Ben Crow and Nirvikar Singh, ‘Impediments and Innovation in International Rivers: The Waters of
South Asia’ (2000) 28 (11) World Development 1907, 1911.
199
Ben Crow, A Lindquist and D Wilson, Sharing the Ganges: The Politics of River Development
(The University Press Limited, 1995) 99.
200
Ashok Swain, ‘Conflicts over Water the Ganges Water Disputes’ (1993) 24(4) Security Dialogue
429, 431.
201
Ibid.
202
Ibid.
203
Discussed in Chapter 2 IV H 2.
215
and Memorandum of Understandings (MoUs) 204 for sharing the Ganges water at
Farakka.205
S The Agreement 1977
Bilateral negotiations resumed with more emphasis given to the settlement of the
water-sharing arrangement between the two countries. After six months of detailed
negotiations, according to the direction of the UNGA Special Political Committee
for Resolution, the first agreement on the sharing of the Ganges water at Farakka
was signed in 1977206 for a period of five years. This agreement was concluded in
the light of promoting and strengthening the relations of friendship and good
neighbourliness of the two riparians.207 The agreement208 also provided scope for the
joint study by the JRC to weigh out a solution to the augmentation problem of the
dry season water flow in the river.
Section A of the agreement deals with the arrangements for sharing the Ganges
water at Farakka (Articles I–VII). Article II recognises ‘the principle of riparian
rights of access to water’209 and allocates the share of water in the dry season flow at
Farakka. 210 This agreement strengthens ‘the principle of joint management’ by
assigning more duties to the Joint Committee and JRC. Article IV establishes a Joint
Committee211 to observe and record daily water flow data at Farakka in India as well
204
Treaties are signed in 1977 and 1996 and MoUs in 1983 and 1985.
205
Muhammad Mizanur Rahaman, ‘The Potentials of International Water Laws Towards Achieving
Integrated Ganges Basin Management’ (Paper Presented at the XII World Water Congress: Water for
Sustainable Development: Towards Innovative Solutions, New Delhi, India, 22–25 November
2005)175.
206
The Ganges Water Agreement was signed by both countries on 5 November 1977.
207
Abedin, above n 137, 236.
208
The 1977 agreement set a water sharing period divided into 15 slots, each having 10 days during
the dry season based on 75% dependable flow at Farakka during 1948–1973. The water ratio was
60:40 for Bangladesh and India respectively with a minimum flow of 34,500 cusec for Bangladesh
and 2500 cusec for India. Bangladesh was guaranteed 80% of its share during each of the slots. For
details see M Rafiqul Islam, Ganges Water Disputes: Its International Legal Aspects (University Press
Limited, 1987) 158–159.
209
Discussed in Chapter 5 II A.
210
Clause (ii) of Article II was known as ‘the guarantee clause’.
211
According to Article VII, the Joint Committee is responsible for implementing the water sharing
arrangements and provides a mechanism for the settlement of disputes.
216
as Harding Bridge point in Bangladesh. 212 Section B deals with the long-term
arrangement for augmenting the Ganges water flow (Articles VIII–XI). Article IX
empowers the JRC to find a long-term economical and feasible solution for Ganges
water scarcity during the non-monsoon season. Section C includes the review
mechanism and duration of the agreement (Articles XII–XV). Article XII states that
the quantum of waters agreed to be released to Bangladesh at Farakka shall not be
reduced during the period for which the agreement is to be in force.
The agreement states that any difference, disagreement or disputes relating to the
water-sharing arrangements, if not resolved by the Joint Committee, shall be referred
to a panel of an equal number of experts nominated by the two governments. This
agreement further mentioned that if any dispute remains unresolved, the two
governments shall meet urgently at the appropriate level to resolve it by mutual
discussion and, failing that, by such other arrangement as both parties mutually agree
upon. This provision is a good example of a peaceful settlement of disputes that is a
recognised principle of sharing transboundary water resource. 213 However, the
agreement expired after five years in November 1982 without any permanent
solution to the augmentation of the dry season flow of the Ganges at Farakka.
T The Ganges Treaty 1996
After the expiry of the 1977 agreement in 1982, a temporary water-sharing
arrangement was made by signing a MoU214 the same year between Bangladesh and
India for sharing the dry season flow of the Ganges for an 18-month period.215 There
was not any kind of water-sharing agreements for the year 1985 between the
countries.216 Another MoU was signed on 22 November 1985 for a period of three
years, expiring on 31 May 1988.217 The provisions of these two MoUs were similar
to the 1977 agreement with the exception of the absence of the 80% guarantee
212
Muhammad Mizanur Rahaman, ‘The Ganges Water Conflict A Comparative Analysis of 1977
Agreement and 1996 Treaty’ (2006) (1/2) Asteriskos 195, 201–202.
213
Discussed in Chapter 4 II A 4.
214
Agreement concluded at the administrative level is known as MoU.
215
Islam, above n 208, 178–179.
216
Salman M A Salman and Kishor Uprety, Conflict and Cooperation on South Asia’s International
Rivers: A Legal Perspective (The World Bank, 2002) 163.
217
Ibid 181.
217
clause.218 There were not any agreed water-sharing arrangements from June 1988 to
November 1996 between the states. In the absence of any sharing arrangement, India
continues with unilateral withdrawal at an alarming rate of the Ganges waters during
the dry season at Farakka, evident from the dry season flows of the Ganges at
Hardinge Bridge. The progressive utilisation of the waters upstream in India,
coupled with the massive unilateral withdrawal, culminated in the lowest recorded
flow at Hardinge Bridge of 13,521 cusecs in 1992, compared with historical average
flows of 75,000 cusecs during the last 10-day period of March.219 However, after a
long diplomatic and political negotiation, the two governments signed the most
recent treaty on 12 December 1996 for sharing the dry season (1 January to 31 May)
Ganges waters at Farakka, for a period of 30 years.220
This treaty establishes the formula of water-sharing of the Ganges at Farakka during
the dry season. It provides an indicative schedule of the water-sharing arrangement
based on 40 years’ (1949–1988) 10-day period average availability of water at
Farakka.221 Both countries agree to follow the general principles of CIL or precedent
to ensure a fair and objective solution without affecting other parties’ rights and
entitlements to access water.222 This treaty recognises the necessity of finding a longterm flow augmentation solution and an agreed plan for resource utilisation for the
mutual benefit of both countries. 223 The ‘principle of joint management’ is
strengthened by assigning more duties to the Joint Committee and JRC (Articles IV–
VII). It establishes and sets out the jurisdiction of the Joint Committee for
monitoring the treaty and swapping information. It makes the Joint Committee
responsible for implementing the arrangement of the treaty (Article VII).
218
Ibid 177.
219
A Nishat and M F K Pasha, ‘A Review of the Ganges Treaty of 1996’ (Paper Presented at
Globalization and Water Resources Management: The Changing Value of Water, AWRA/IWLRI
University of Dundee International Speciality Conference, 6–8 August 2001) 3.
220
Ashok Subramanian, Bridget Brown and Aaron T Wolf, Reaching Across the Waters: Facing the
Risks of Cooperation in International Waters (World Bank, 2012) 14–17.
221
Article II, Annexure I and II, both are noteworthy, as they incorporated the equality and no harm
rule or the theory of limited territorial sovereignty.
222
Abedin, above n 137, 238.
223
Subramanian, Brown and Wolf, above n 220, 17.
218
The sharing of the Ganges water between the two countries will be in 10-day periods
from 1 January to 31 May every year in accordance with the formula given in Table
6.6. The treaty further stipulates that both the countries shall receive a guaranteed
flow of 35,000 cusecs 224 of water in alternative three 10-day periods in between
March 11 to May 10225 of every year. In the event of the flows below 50,000 cusec
in any 10-day period, the two governments need to enter immediate consultations to
make adjustments in accordance with principles of equity and no harm to either
party.226
Table 6.6: Ganges Water-Sharing
Availability at Farakka
Share of Bangladesh
Share of India
70,000 cusecs or less
50%
50%
70–75,000 cusec
35,000 cusecs
Balance of flow
75,000 cusecs or more
Balance of flow
40,000 cusecs
This treaty is based on the principles of ‘reasonable and equitable sharing’,
‘obligation not to cause harm’ and ‘non-recognition of unilateral action’. 227 The
inclusion of these principles is certainly a breakthrough that will in turn reduce the
conflict and accelerating cooperation between the riparian countries. 228 Article IX
discourages any unilateral projects on the transboundary water resources and agrees
to share water guided by the principles of equity, fairness and no harm to either party.
This article opens up the provision of ensuring the cooperation for remaining
common rivers between the countries. As a signatory, it has become an obligation for
India. Article X indicates that both states have the responsibility to transboundary
water-sharing through agreement and cooperation. It can be concluded that the treaty
224
Cusec means water flow in cubic feet per second
225
I.e., March 11–20, April 1–10 and April 21–30 for Bangladesh, and March 21–31, April 11–20 and
May 1–10 for India.
226
Article II(iii) of the Ganges Treaty.
227
Non Navigational Laws and Helsinki Rules 1966 are adopted accordingly to formulate the Treaty.
228
Rahaman, above n 212, 206.
219
recognises the necessity of integrated management of the river system and follows
‘the principle of joint management’.
Compared with the 1977 agreement, the weakness of the Ganges Water Treaty is that
it does not include a clear conflict resolution and arbitration mechanism.229 Though
the JRC is the only formal institution for dealing with transboundary water issues
between the two nations, it does not include any authoritative power to JRC for the
implementation of the treaty.230 The positive development is the inclusion of Article
IV of Helsinki Rules.231 The absence of guarantee clause is a limitation of this treaty
but both countries are agreed to share water equally whenever the water flow falls
below an agreed amount of 70,000 cubic feet per second. In addition, there are also
some provisions in the treaty for both parties to discuss options for the augmentation
of the Ganges flow during the dry period and optimum allocation of waters of other
common rivers between Bangladesh and India. 232 Both the agreement and treaties
incorporate many of the internationally accepted fundamental principles of
international watercourses law.233 The inclusion of these principles in two bilateral
instruments opens up a new horizon and offers the prospect of common ground in
the integrated management of transboundary water resources.
Ganges water-sharing treaty is a narrow treaty in its scope and is mainly confined to
the sharing of available water between the countries. It has no provision for the
management of water resources. The treaty is not to figure out the conservation of
water, the protection of the ecosystem or aquatic life or the concept of sustainable
use or exploitation of water. It does not contain any provision concerning the control
of pollution of the river.234 Also, there is no provision for the judicial settlement of
229
Rahaman, above n 205, 182.
230
Rahaman, above n 212, 206.
231
Article IV of the Helsinki Rules: ‘Each Basin State is entitled, within its territory, to a reasonable
and equitable share in the beneficial uses of the waters of an international drainage basin.’
232
Nishat and Pasha, above n 219, 3.
233
Provisions for the protection of environment (Articles 7, 20 and 21 of the United Nations
Convention on the Non-Navigational Uses of International Watercourses (1997) 36 ILM 700 and
Articles IX-XI of the Helsinki Rules 1966 are not directly incorporated in the 1996 Ganges Treaty.
However, the rights and obligation of riparian states’ to protect and preserve the water resources and
to prevent, reduce and control of pollution are adopted.
234
Surya P Subedi, ‘Conclusions and Recommendations’ in Surya P Subedi (ed), International
Watercourses Law for the 21st Century The Case of the River Ganges Basin (Ashgate, 2005) 247, 247.
220
disputes between the parties and even some of the provisions providing the formulae
for water-sharing are contradictory. All in all, it is a treaty with a narrow vision and
fraught with a number of difficulties.
U The Teesta Water-Sharing Issues
Bangladesh and India share 54 transboundary rivers and India has taken unilateral
actions over 43 of them by building artificial structures such as dams, barrages and
reservoirs. Both the riparians have another longstanding dispute in relation to Teesta,
the fourth major river that flows between the countries. Teesta is the main source of
irrigation water in the NW hydrological region of Bangladesh. It is also the lifeline
of the Indian state of Sikkim.235 The river Teesta originates from the Jongsong Peak
in the glaciers of the Himalayas in Sikkim (India) and flows through the northern
part of West Bengal in India before entering into Bangladesh and finally merging
with the river Brahmaputra.236 Both the countries have built barrages into the river.
India built a barrage upstream in Teesta at Gazaldoba and unilaterally diverted 85%
of water from the river’s flow.237 Due to the importance, Bangladesh built a barrage
during the 1990s, although the barrage constructed upstream by India has hampered
its operation.
Bangladesh has to irrigate 632,000 hectares of farming land with waters from the
Teesta and the population dependent on the Teesta water are 21 million for
Bangladesh and 8.5 million for India; the overall ratio is 70:30 respectively for
Bangladesh and India.238 In the absence of any treaty or agreement, Bangladesh does
not even receive a minimum amount of water in the dry season from the Teesta.
Conversely, during summer and monsoon, Bangladesh gets so much excess water
from the Teesta that it brings many socioeconomic and environmental problems.239
Bangladesh is always demanding an equitable and reasonable share of the water of
235
H G Joshi, Sikkim: Past and Present (Mittal Publication, 2004) 1.
236
Muhammad Mizanur Rahaman and Olli Varis, ‘Integrated Water Management of the Brahmaputra
Basin: Perspective and Hope for Regional Development’ (2009) 33 Natural Resources Forum 60, 65.
237
Barrister Harun ur Rashid, ‘Teesta Water Issue: A Few Hard Facts’, The Daily Star, 11 January
2012 <http://www.thedailystar.net/newDesign/news-details.php?nid=217791>.
238
Ibid.
239
Such as floods that destroy houses, agricultural land, roads, riverbanks and embankments.
221
the Teesta in the dry season and is interested to develop joint management through
the JRC.
In the beginning of the negotiations between the two countries, Bangladesh proposed
equal sharing of the water, keeping 20% for river flow of Teesta. This means the
sharing would be out of the 80% remaining water and both countries would get 40%
each. However, India claimed 15% more water than proposed by Bangladesh for an
agreement period of 15 years. 240 In 1983, Bangladesh and India reached an
agreement on ad hoc sharing of the Teesta waters. According to the agreement, 36%
of water is allocated for Bangladesh, 39% for India and the remaining 25% is
allocated for the environment.241 However, due to controversies over the real data on
water flow, this agreement was never implemented and extended further.
In March 2010, at the ministerial-level meeting of the JRC, both the states agreed to
sign an agreement on the sharing of Teesta water within one year.242 The proposed
bilateral treaty was an expansion of the 1983 agreement, proposing an equal
allocation of water between the states, with India to get 42.5% while Bangladesh
would get 37.5% (of the 80% of water allocated for use).243 However, the deal was
cancelled at the very last minute due to the newly elected Chief Minister of
Paschimbango objecting to the previously agreed ratio. The Paschimbango
government has constituted an expert committee to assess water availability in the
Teesta, the impact of water-sharing agreement and to find an acceptable solution in
this issue.244 Also, the government of Bangladesh has emphasised the need to find
the permanent solution in this issue. Recently, it has been discussed at the 2nd Joint
Consultative Commission meeting at the level of foreign ministers in February 2013
and during the Indian President’s visits to Bangladesh in early March 2013.245 As of
240
Rashid, above n 237.
241
Aaron T Wolf, Atlas of International Freshwater Agreements (United Nations Environment
Programme, 2002) 59.
242
Abedin, above n 137, 240.
243
Rashid, above n 237,
244
Ibid.
245
Press Information Bureau of India, Teesta River Issue, Government of India (15 March 2013)
<http://pib.nic.in/newsite/erelease.aspx/relid=93197>.
222
today, the sharing of the Teesta water is a source of tension between Bangladesh and
India.
More recently, India’s Tipaimukh hydroelectric dam project is another example of
disregarding Bangladesh’s water right. 246 The proposed project involves plans to
build a dam near the confluence of two rivers—the Barak and the Tuivai—in
Manipur, just 60 miles from the Bangladesh border. India’s unilateral decision to
build the dam and a barrage in the further downstream is likely to have enormous
adverse impact on the NE hydrological region of Bangladesh.247
The lack of an institutional framework is another constraint that has prevented
meaningful and durable regional cooperation. Each country has its own institutions
for water resource planning and management at the national levels. Cross-border or
regional issues have been dealt with bilaterally often on an ad hoc basis. The JRC of
India and Bangladesh has succeeded to some extent but failed to develop a
sustainable approach because of the lack of political consensus and willingness, and
the fact it did nor integrate other stakeholder riparian states under multilateral
cooperation. 248 Thus, in order to bring a true IWRM, an apex body needs to be
established with a mandate to develop, utilise and manage the vast potentials of the
water resources in the GBM region. 249 This thesis argues for the importance of
establishing a national authority for inland water pollution and a regional authority
that can expedite this initiative for long-term benefit.
VII CONCLUDING REMARKS
In order to evaluate the inland water pollution control regime in Bangladesh, the
relevant national policies were considered and analysed in this chapter. The
performance of the present system in terms of several aspects such as relevant
national policies, legislative framework, organisational capacity, enforcement and
monitoring status and extent of stakeholder involvement should be considered. In
246
Lewis, above n 195, 174.
247
Rashid, above n 9, 129.
248
Surya P Subedi, ‘Regulation of Shared Water Resources in International Law: The Challenges of
Balancing Competing Demands’ in Surya P Subedi (ed), International Watercourses Law for the 21st
Century and the Case of the River Ganges Basin (Ashgate, 2005) 17.
249
Ahmad et al, above n 140, 70.
223
depth knowledge about those elements is essential to understand the capacity and
needs of the present regulatory system and is helpful for suggesting future initiatives.
The country has policies, plans, regulations, bilateral water-sharing treaties and
many organisations to deal with inland water sources. Despite the high dependency
on this source, there is no effective measure for protecting it from pollution. Existing
quality monitoring systems are inadequate to provide any early warnings. Although
there are many agencies such as IWM, Center for Environmental and Geographic
Information Services (CEGIS) and RRI involved in inland water development, there
is a need for one specific agency or organisation to protect quality and quantity of
inland water in the country to ensure that the development of this vital resource is
sustainable. The next chapter indicates the essential changes in the organisational
and legal regime that can lead to more effective prevention of inland water pollution.
This thesis suggests that water needs to be treated as a precious resource and
managed with a view to maximum social benefit rather than narrow self-interest for
the wellbeing of the people of Bangladesh.
224
CHAPTER 7: CURRENT PREVENTIVE ARRANGEMENTS FOR
INLAND WATER POLLUTION IN BANGLADESH: STRENGTHS,
WEAKNESSES AND PROSPECTIVE REFORMS
I
INTRODUCTION
This chapter evaluates the competency of the present regimes in preventing inland
water pollution of Bangladesh with reference to major legal and policy response
from the government. In doing so, the achievements and the failures in controlling
inland water pollution are identified, followed by a discussion of regulatory reform
with a view to achieving more efficient outcomes. This chapter also identifies and
notes necessary changes to expedite the process of protecting inland water pollution
of Bangladesh.
As research aims to formulate a more effective, sustainable and feasible approach to
control inland water pollution in Bangladesh, existing policies, plans, legislations
and institutional arrangements relating to inland water pollution have been evaluated.
Underlying principles of regulatory frameworks and their efficacy and shortcomings
are both critically analysed in this chapter. It has been revealed that there are a range
of legislations, organisations and management principles available for the control of
inland water pollution, but the efficacy and adequacy has rarely been tested through
the appropriate mechanism. In order to address inland water pollution effectively,
more comprehensive and integrated legal and institutional arrangements and
responses, including a singular authority, is proposed as a way forward. Institutional
capacity along with the flexible application mechanisms are needed to ensure that
unpolluted inland water resources remain available in the future.1
II MAJOR LEGAL AND POLICY RESPONSES IN INLAND WATER IN BANGLADESH
In Bangladesh, water quality and pollution control issues are emphasised in a
number of policies, including the NEP 1992. The NEP 1992 was an outcome of the
National Conservation Strategy and was launched with a view to provide protection
and sustainable management of the environment. The main objectives of the policy
include: 1) identify and regulate activities that pollute and degrade the environment;
1
G J Alaerts, ‘Institutional Arrangements’ in Richard Helmer and Ivanildo Hespanhol (eds), Water
Pollution Control A Guide to the Use of Water Quality Management Principles (E & FN Spon, 1997)
219, 219–220.
225
2) maintain ecological balance and overall development through protection and the
improvement of the environment; 3) ensure sustainable use of all natural resources
for all sectors that help environmentally sound development; and 4) actively remain
associated with all international environmental initiatives to the maximum possible
extent. 2 In 1995, the NEMAP was prepared by the government as an outline of
programmes and interventions aimed at implementing NEP 1992. The NEMAP is
intended to promote a participatory (stakeholder) based approach for better resource
management. It recognises the role of communities and NGOs for natural resource
management as vital: ‘environmental issues cannot be addressed by the government
alone but require the participation of civil society and non-government
organisations’.3
This provision within the government policy clearly authorises the scope of
stakeholder participation for natural resource management. However, an explicit
framework, including the roles of the stakeholders for such interventions in water
pollution control activities, has been missing in this action plan. Moreover, no
government action programme that formalises the participatory based approach for
inland water pollution control has been implemented since the formulation of the
NEMAP.
Consequently, with over 50 clauses of relevance to the environment, the sectorspecific NWPo was prepared by the government in 1999 to ensure that the use and
the management of water resources are fully environment friendly. This policy
particularly emphasises on water resource management practices that aim to
diminish environmental degradation. Specific provisions within this policy include
the protection, restoration and enhancement of the water resources and quality,
including strengthening of the regulations concerning agrochemicals and industrial
effluent monitoring. The policy also adds the participation of local communities as a
requirement for all water sector development as subject to an environmental
assessment procedure and for the planning and management process.4
2
A Atiq Rahman et al, ‘Bangladesh: State of the Environment 2001 (Report, United Nations
Environmental Programme, 2001) 54.
3
Government of the People’s Republic of Bangladesh, ‘National Environment Management Action
Plan’ (Report Vol 1a, Ministry of Environment and Forests, 1995) 19.
4
Ibid 55.
226
The national policies have adequate clauses relating to protecting water pollution,
which includes effluent discharge monitoring, industrial zoning regulations,
participation of stakeholders, involvement of civil society and strengthening of the
regulatory system.5 In particular, the NWPo opens up the opportunity to focus on
pollution control of water bodies, but in practice, very few programmes have been
developed where both government and the private sector address these issues. 6
Nevertheless, the NWPo is comprehensive and trying to address many relevant
aspects of water management. One key focus of the policy is stakeholder
participation, where all stakeholders are to actively and fruitfully participate in water
management decision making at all stages. 7 The NWPo of Bangladesh provides
policy direction and sets new paradigms for the water sector. It aims to provide
directions to all agencies working with the water sector and all institutions that relate
to the water sector, for the achievement of specified objectives, including the
efficient, equitable management of institutional changes and developing a regulatory
environment. The policy encourages Bangladesh to manage its water resources in a
comprehensive, integrated and equitable manner, both for the people and for the
protection of the natural environment.8
In line with the requirements of the NWPo, the NWMP was prepared with regard for
the interests of all water-related sectors and taking full account of other sectoral
policies of the government. The NWMP was prepared by the WARPO of the MoWR.
This plan has provided necessary advice on follow-up actions to be taken for
implementing the NWPo, thereby contributing to national economic development
through rational management of water resources, in a way that protects the
environment and improves the quality of life for the people of Bangladesh.9 A wide
range of development measures, identified through a participatory process, considers
5
Ibid 58.
6
Ana Marr, Nandita Dasgupta, ‘Industrial Water Pollution in Dhaka, Bangladesh: Strategies and
Incentives for Pollution Control in Small and Medium Enterprises’ (2009) 3(11) The International
Journal of Interdisciplinary Social Science 97.
7
Government of the People’s Republic of Bangladesh, ‘National Water Policy’ (Policy, Ministry of
Water Resources, 1999) 18.
8
Nahid Islam, The Law of Non-Navigational Uses of International Watercourses: Options for
Regional Regime-Building in Asia (Kluwer Law International, 2010) 348.
9
Government of the People’s Republic of Bangladesh, ‘National Environment Management Action
Plan’ (Report Vol 5, Ministry of Environment and Forests, 2001) 1.
227
how well each of the measures addresses national goals and is applicable to present
and future regional needs. The implications of phasing in the selected measures,
reflecting the three main strategies,10 are considered in the form of alternative shortmedium and long-term programmes.11 Both the NWPo and NWMP exclusively deal
with the rational use of water resources and are based on the idea of traditional
IWRM.12
In general, the policies and legislation in place to protect water bodies from pollution
have been well constructed and comprehensive in Bangladesh. 13 They have adequate
clauses relating to water quality protection, which includes effluent discharge
monitoring, involvement of civil society and NGOs, industrial zoning regulations
and strengthening of the regulatory system.14 In addition to the national policies, the
government has also incorporated provisions within various Five-Year Plan
documents, which reflect their initiative to protect the environment and control
inland water pollution. However, current policies do not provide incentives for
changing polluter behaviour and are comprehensively reliant on direct regulation
mechanisms. The NEP does not clarify the measures needed for integrated efforts for
environmental protection, including water resources. Further, the government is not
yet to adopt any firm policy to reduce pollution arising from industrial effluent and
municipal wastewater discharge, specifically in surfacewater bodies.
Over the last decade, a large number of rules and regulations have been made,
particularly in identifying water pollution issues and potential solutions. An analysis
of policy, legal and regulatory frameworks to address the inland water pollution
problems is presented as follows.
10
Three main strategies have been considered: balanced development, economic growth and health
and environment strategy, each representing a different understanding of the relative importance of
the individual national goals.
11
Government of the People’s Republic of Bangladesh, above n 9,1.
12
Nazmul Huq and Jean Hugé, ‘‘Greening’ Integrated Water Resources Management Policies for
Tackling Climate Change Impacts: A Call for Sustainable Development’ in Walter Leal Filho (ed),
Climate Change and the Sustainable Use of Water Resources (Springer, 2012) 173, 181.
13
Alexandra Clemett, ‘A Review of Environmental Policy and Legislation in Bangladesh’ (Research
Report, Section 2, Department for International Development, UK, 2004) 9.
14
Government of the People’s Republic of Bangladesh, above n 3, 54 .
228
Table 7.1: Regulatory Frameworks to Address the Inland Water Pollution Problems15
Pressures
Policy, Legal
and Regulatory
Framework
Program
Undertaken
Possible Options
to Address the
Problem
Industrial effluent
Industrial policy,
ECA, ECR and
guidelines for
industrial EIA.
Need institutional
strengthening and
enforcement of laws
and regulations.
Installation of
treatment plant,
land zoning,
enforcement of
ECA and ECR.
Agrochemical
Present legal and
regulatory
framework is not
adequate.
Need wider
knowledge
regarding balanced
use of agrochemical.
Awareness
campaign.
Low water flow
and upstream
withdrawal in the
river system in
dry season
NWPo, watersharing treaties.
Augmentation of dry Strengthening of
season water flow,
regional
consumptive use of
cooperation.
surface and
groundwater.
There is large number of rules and regulations to protect inland water from pollution
but concerns prevail regarding the implementation of national policies due to the
shortage of skills and expert persons for taking appropriate action, and lack of
institutional capability and awareness to properly address the policy objectives and
goals. 16 Possible future concerns on inland water pollution issues and required
actions are presented as follows.
15
Ibid 56.
16
Ibid 57.
229
Table 7.2: Future Concerns Regarding National Policies and Water Pollution-Related
Issues
National Policies and Key
Water-related Issues
Future Concerns
Need to Address the Issues
Agriculture (1999):
increased environmental
friendly, sustainable
agriculture; strengthening
agro-fisheries.
Increased water
pollution due to
unbalanced use of
agrochemicals.
Strengthening activities and
raise awareness about
balanced use of
agrochemicals.
Industry (1999): raising
industrial GDP, encourage
environmentally sustainable
ISO certification.
Increased production
could increase
pollution severity.
Institutional strengthening to
enforce environmental rules
and regulations and better
coordination between
different ministries.
Drinking water supply
(1998).
Surfacewater quality
and groundwater
arsenic mitigation.
Institutional strengthening,
coordination, awareness
raising and stakeholder
participation.
Water quality along with other environmental issues was emphasised in the NEP
1992 and more detail was outlined in the ECA 1995 and Environment Conservation
Rules 1997. For over a decade, it has been clear that it is not the primarily the acts,
laws and rules addressing water pollution and management of water resources that
are inadequate, but rather there are difficulties leading to a failure to implement
them. 17 However, there have been few initiatives to address the problems. Clear
measures for ensuring compliance with the environmental laws and regulations,
including enforcement, are lacking. Without a clear strategy for action in and around
the main cities, water quality will continue to worsen in the foreseeable future,
constituting a major threat to millions of lives and livelihoods, particularly the poor.
III SHORTCOMINGS OF THE CURRENT ARRANGEMENTS
Bangladesh has been made good progress by adopting comprehensive sector reviews
and developing national policies and reforms, with the NWPo approved in 1999,
promulgating the Environment Court Act 2002 and adopting the NWL 2013. The
NWPo is a solid document that reflects significant changes to the dominant approach,
17
Improved Environmental Governance: A Framework for Action to Meet National Environmental
Quality Standards for Wastewater Project (Concept Note, 24 June 2013) 2
<http://www.dfid.gov.uk/r4d/PDF/Outputs/Water/R8161-ActionFramework.pdf >.
230
but is also limited in terms of the details through which the policy intentions will be
implemented or the capacities of the institutions to enact crucial pieces of the policy.
Implementation18 has been less successful and revision of water-related law is taking
more time than expected. Particular areas of weakness include a lack of formal
arrangements for water allocation and ineffective regulation of wastewater
discharges. State-provided service coverage and quality is poor because of the low
levels of cost recovery and inadequate budgets for operation and maintenance. Public
participation, government-stakeholder partnerships, gender equity and devolution are
incorporated into official policies but generally implementation is slow and overall
capacity building is limited despite of well-provided technical education and training.
The government of Bangladesh acknowledges water as a finite resource with huge
significance for the environment and livelihoods in its NWPo. This policy provides a
comprehensive policy framework for pressing water issues in Bangladesh such as
river basin planning, water rights and allocation, delineation of public and private
domains, water supply and sanitation, preservation of the natural environment and
the developmental concerns of fisheries, navigation and agriculture. The policy also
provides guidance on its economic and financial management (water pricing),
participation by stakeholders, decentralised management and delivery structures. In
essence, the NWPo is the cornerstone that guides water management in Bangladesh.
The broader NWPo is a key document that accommodates different modes of
governance and institutions working in the area. Further, the Guidelines for
Participatory Water Management (GPWM)19 operationalise the focus on communitybased management in water as envisaged in the NWP.
The NWPo of Bangladesh is an ambitious and well-developed policy document in
many ways. It attempts to link various water management problems underneath its
wings, taking a cross-sectoral and comprehensive approach of viewing water
governance from agriculture, industry, domestic and energy sectors. In this sense, it
is before its time, as water has often been segmented from its use in various sectors.
In addition, the policy states that water is a basic human right and explicitly
18
Implementation is the process of putting a decision or plan into effect.
19
Government of the People’s Republic of Bangladesh, ‘National Water Management Plan’ (Report
Vol 2, Ministry of Water Resources, 2001) 210.
231
recognises the socioeconomic equity dimensions of water in 1999, although this was
not formally recognised by the international community until 2011. Further, when
many countries worldwide were unquestionably following rapid privatisation in the
late 1990s, the Bangladesh government urged for a trade-off between private
investments in the water sector and the need for public sector involvement in large,
bulk capital investments that require economies of scale.
Bangladesh is the lower-most riparian state of the GBM basin and the NWPo
recognises Bangladesh’s weak position in controlling its own water flows. 20 It is
therefore admirable that the policy places river basin management and seeking
cooperation, collaboration and coordination with co-riparian basin states as the first
policy element. 21 Further, the policy recognises that the process of planning and
managing water resources requires a comprehensive and integrated analysis of
relevant hydrological, topographical, social, political, economic, environmental and
institutional factors across all water-using systems.
The NWPo outlines the responsibilities for the key agencies involved, with the
ECNWRC established to resolve any interagency conflict in terms of regional and
local water management plans. Considering the importance of cross-sectoral
coordination, designating a special government unit tasked to resolve such tensions
is a practical prevention measure. It is specified that the government will frame the
rules and procedures for combining water and land use, showing a holistic approach.
Further, it is also stated that the NWPo will be revised when necessary,
demonstrating a flexible attitude. As a whole, for planning and management, the
policy is thinking long-term and trying to practically address the multifaceted uses of
water in the country currently and for the future. This perspective and outlook on
water governance and management is notably the greatest strength of NWPo.
The NWPo provides a sound identification of the different problems related to the
lack of quality drinking water that ranges from point to non-point sources of inland
water pollution. 22 However, the policy prescription envisaged seems to have an
urban focus. For instance, it mentions preservation of natural depressions and water
20
Government of the People’s Republic of Bangladesh, above n 7, 4.
21
Ibid.
22
Ibid 10.
232
bodies in major urban areas, as well as drainage and wastewater treatment by public
water and sewerage institutions. Very little is mentioned in reference to more remote
rural areas and their water situation, except that local governments have the mandate
to create ‘awareness among the people in checking water pollution’.23 Considering
how agriculture and aquaculture have a tremendous impact on drinking water quality
and that the NWPo explicitly acknowledges these challenges, it is an inadequacy not
to provide any guidance.
The NWPo has highlighted the effluent discharge problem as a critical water
management issue and has set broad guidelines to prevent industrial water pollution,
and the policy defines the government’s concept of water resources as well as longterm priorities for exploitation of the resource. The policy should also ensure the
willingness of government to ensure long-term protection and sustainable
exploitation of water resources along with social and economic development. 24
However, the NWPo does not specify which institution is responsible for water
issues in agriculture, industries, domestic areas or the environment. Though there is a
view that the ECNWRC will resolve any interagency conflict in terms of regional
and local water management plans, it is not clear how this would work in practice
when these different ministries and departments work on their own issues and for
their own goals.
Bangladesh has managed to achieve very little in line with the declaration of NWPo,
even after 15 years. In fact, the situation has further worsened in some respect. 25 The
situation may further aggravate putting the country under the category of water stress.
Thus, the old policy needs to be revised and replaced by a new one. Existing policy
emphasises IWRM for optimal and sustainable utilisation of the available ground
and surfacewater, use of traditional methods of water conservation and nonconventional methods for water utilisation and demand management.26 The revised
policy could aim at integrating quantity and quality aspects as well as environmental
23
Ibid 11.
24
H Larsen, N H Ipsen and L Ulmgren, ‘Policy and Principles’ in Richard Helmer and Ivanildo
Hespanhol (eds), Water Pollution Control A Guide to the Use of Water Quality Management
Principles (E & FN Spon, 1997) 1, 3.
25
Such as unregulated groundwater, augmentation of supply or maintaining the quality.
26
Government of the People’s Republic of Bangladesh, above n 7, 3.
233
considerations for water through adequate institutional arrangements. The policy
could stress the involvement of stakeholders in the decision making process and
participatory approaches in inland water resources management. Moreover, policy
must include combating the impact of climate change and sea level rise. Both of
these issues remain untouched in the present NWPo in Bangladesh. Despite many
shortcomings, the policy is considered a landmark document conveying the message
that inland water is an increasingly scarce and valuable resource. SD is impossible
without water, and all efforts should be made to guarantee sustainable use of inland
water.
There are a number of laws and policies that embrace the inland water quality issue
without having any specific legislation to protect the quality of water in the country.
The EPA 1995 sets criteria for waste dumping in inland water, generally covering the
WQS of the country. The National Policy for Safe Water Supply and Sanitation 1998
specifically sets goals for the supply of safe drinking water and NWPo highlights
water quality issues.27 The ECR 1997 is considered a significant part of the legal
basis for pollution control in Bangladesh, despite some prevailing weaknesses in this
regulation. One limitation is that it aims to control water pollution only on the basis
of the concentration of pollutants. Thus, the system does not provide incentives to
the polluters nor impose any extra charges on them on the basis of their excess load
of pollution.28 Moreover, the mandatory provision of the rules is that each industry
or establishment (within Orange B and Red categories) should have an in-house
Effluent Treatment Plant (ETP) to get the ECC from the DoE.29 This type of direct
regulatory measure gives little incentives for the pollution causing agents to innovate
or invest in more efficient pollution control or cleaner process technologies. Another
limitation of the ECR 1997 is that it does not specify how the DoE would deal with
the industries that were established without having any ETP prior to this legislation.
27
Kazi Matin Ahmed, ‘Groundwater Contamination in Bangladesh’ in R Quentin Grafton and Karren
Hussey (eds), Water Resources Planning and Management (Cambridge University Press, 2011) 529,
554.
28
Md Ashiqur Rahman, Towards an Integrated Pollution Management Approach for the Buriganga
River in Bangladesh (Phd Thesis, The University of Sydney, 2011) 93.
29
Guide to the ECA 1995 and ECR 1997 of the Government of Bangladesh, Bangladesh Centre for
Advanced Studies, Dhaka.
234
As a result, despite having the provision of ETP, very few industries have installed
the ETP so far.30
The monitoring of inland water quality by NGOs and Community-Based
Organisations (CBOs) would be a new practice in Bangladesh. It may be anticipated
that these organisations would be able to perform this responsibility in an effective
manner given the capacity and the willingness of the local people for their
contribution. According to the proposed system, shifting responsibility for water
quality monitoring from the regulatory authorities to the community groups may also
lower the administrative costs. 31 However, for this purpose, a procedure and
guideline 32 for water quality monitoring by the NGOs and CBOs is required to
simplify their tasks. Moreover, necessary training programmes should be directed by
experts in the field to capacity building of those organisations for this purpose. An
effective monitoring process is necessary to make sure that the management
programmes are working and to assess water quality continuously.33
Since surface and groundwater are interacting, the quality of water in one regime has
implications for that in the other. Over the years, the quality of both surface and
groundwater has deteriorated to such an extent that it has now become a matter of
serious concern in every region. Hence, a holistic approach is needed to monitor the
water quality of the whole country together in preventing its further deterioration.
Water quality monitoring is an ongoing and expensive task and the responsibility
usually lies with government agencies. In Bangladesh, water quality in different
locations is mainly determined and monitored by different government agencies.
The development of water policies in Bangladesh has been closely linked to the
introduction of water sector modifications and more recently water law reforms.
Despite the importance of water in all aspects of life and the existence of a number
of water-related laws and regulations and case law, the policies failed to provide a
30
Rejaul Karim Byron, ‘Industries Care Little for Waste Management’, The Daily Star (Dhaka), 19
February 2006, <http://archive.thedailystar.net/2006/02/19/d60219011310.htm>.
31
World Bank, Pollution Prevention and Abatement Handbook 1998 Toward Cleaner Production
(The World Bank Group, 1999) 5.
32
The guideline may include the methods for testing the water quality parameters, frequency of water
quality monitoring and choice of parameters.
33
Neil S Grigg, Water Resources Management Principles, Regulations, and Cases (McGraw-Hill,
1996) 315.
235
unified direction to the water sector. Thus, NWPo constituted the first attempt to
provide a general framework within which the water sector should operate. This
policy establishes basic principles for all activities related to water and ensures
consistency throughout the various sectors.34
It is evident from international experiences that a number of institutional,
administrative, technical and economic conditions are necessary in order to
implement a pollution control system to improve inland water quality. It is
commonly agreed that the successful implementation of any pollution control
depends on following measures: appropriate legislative measures, stakeholders’
involvement, political commitment, cost-effectiveness, strong organisational
capacity (for effective administration, monitoring and enforcement), appropriate
engineering and technical measures and a long-term action plan.35
At the policy level, when it comes to national governments, water is dealt with by
many ministries, for example, agriculture, transport and navigation, power, industry,
forest and environment. In fact, there often tends to be little coordination between
them and their focus is likely to be more on development issues, other than water
resource management. An example of a problem stemming from a lack integrated
planning at the policy level could be a clash of interests between a MoWR and a
Ministry of Agriculture. In a developing country like Bangladesh, the MoWR may
well have an objective to conserve water (because of water scarcity), whereas the
Ministry of Agriculture may well have an objective to increase crop production (to
feed the people and create a surplus for future). In isolation, both objectives are
acceptable and reasonable, but if increasing crop production means using more
irrigation with no consideration of improving efficiency, then a serious problem
could well arise.36
NWL 2013 is considered the most recent legislative initiative and provides unlimited
power to the Executive Committee to take any action that they deem necessary to
34
Philippe Cullet, Water Law, Poverty and Development Water Sector Reforms in India (Oxford
University Press, 2009) 93.
35
Rahman, above n 28, 142.
36
Gareth J Lloyd, Patrick McCarron and Lucía Stacy, Integrated Water Resources Management: How
has IWRM Helped Exert Sustainable Water Resource Management in the Rufiji River Basin in
Tanzania? (22 April 2013) 50 < http://rudar.ruc.dk/bitstream/1800/1259/1/IWRM%20TANZAN.pdf
>.
236
implement various provisions of the Act. This Act also exempts the government
authority of any violation, non-compliance, negligence, wrongfully causing financial
damage to individuals or organisations, and/or avoidance to implement this Act in
the name of good faith. Limitless power of the Executive Committee without any
provision for check against such power may lead to wrong-doing and anarchy. No
court can accept a law suit under the provision of this Act without a written
complaint from the DG of WARPO or their appointee, which is a severe drawback
of this Act. Although an accused will be allowed to defend themselves in the court,
there is no clear provision to appeal against any judgement given out by a court.
The act provides provisions for punishment and financial penalty for non-compliance
with the act, including negligence to abide by government policy, ordinance, noncooperation with government officials, refusal to present necessary documents,
providing false information, affiliation with perpetrators and protection measures for
water resources management. Punishment related to water quality degradation
caused by industrial discharge and other sources of pollution is not adequately
addressed in this act. Since the act outlines various punishable activities, it is
expected that provisions for punishment and penalty for water quality degradation be
included in future amendments. Moreover, people’s access to sufficient and quality
water is not recognised as a fundamental right in the NWL 2013.
Currently, in Bangladesh there is no effective system of sharing information related
to inland water pollution. Disclosure of information is a prerequisite for effective
implementation and administration of and compliance with any pollution abatement
instrument. The government should have a positive attitude towards transparency of
information and should play an active role in the generation and dissemination of
information. The regulatory authority should maintain a database on relevant
pollution-related information on the inland water and should provide that
information when required. The data on pollution could be generated through
community involvement and by ensuring a regular monitoring of water quality
parameters both at receptor and discharge points. Moreover, the polluters could also
be held liable for not providing information on their current pollution emission rates
(both in terms of load and concentration) on a regular (monthly or annual) basis. In
this regard, there should be legal provisions for imposing significant penalties by the
237
authority (such as the proposed Inland Water Management Authority (IWMA)) for
providing false statements by the pollution emitters.
Inadequacy of data is an impediment in the process of formulating a long-term water
vision. A large number of water-related data have been generated by each riparian
country but there has not been any coordination in exchanging or compilation of
these data at regional levels. Even at the national levels, data generated by different
agencies are used or stored in a disjointed fashion. The problems of nontransparency and lack of data exchange exist among the countries relating to their
water sector activities and within each country among different government and nongovernment agencies. Free and unfettered flow of data and information throughout
the region along with the generation of new baseline data are essential prerequisites
for vision realisation.37
IV REGULATORY REFORM OF INLAND WATER POLLUTION: NECESSARY
ELEMENTS
According to the ADB, water sector reform requires the whole of a country’s
policies, planning, implementation and other supporting activities to develop and
manage water resources and deliver water services to all users.38 Water sector reform
means to address the current water crisis, which is most of the time essentially a
crisis of governance that must be addressed through reforms in water resources
management. Though the legal systems have recognised that water is unlike other
substances and directly linked to the survival of all living beings, the drafters of the
Constitution of Bangladesh failed to include an explicit mention of water.
Traditionally, water law has been made up of different rules for different bodies39 of
water, often treating surface and groundwater separately. 40 The first reason for
regulatory reforms is that the existing framework for inland water-related laws dates
back to the late 19th century when the issues in the water sector were drastically
37
Q K Ahmad et al, ‘GBM Regional Water Vision: Bangladesh Perspectives in Q K Ahmad et al
(eds), Ganges-Brahmaputra-Meghna Region A Framework for Sustainable Development (The
University Press Limited, 2001) 31, 70.
38
Asian Development Bank, ‘Response of the Asian Development Bank of the Report of the World
Panel on Financing Water Infrastructure’ (Report, ADB, January 2004) 3.
39
Irrigation has been treated separately from drinking water.
40
Cullet, above n 34, 28.
238
different.41 In addition to the dated nature of existing water law, to some extent some
of the provisions are also unclear, ambiguous and difficult to understand. Further,
regarding ongoing reforms, even the UNDP makes the point that there are no readymade solutions42 that can be successfully implemented in all countries of the world.43
Other international institutions44 have had an important role in the adoption of water
sector reform in Bangladesh.
The proposed reforms are a relatively simple alternative or addition that can be used
to rally people in different areas of the water sector.45 Water sector reforms are based
on the recognition that sustainable water management can contribute to the
protection of ecosystems.46 Water sector reforms use the environment as the starting
point for a set of economic and policy measures that form the core of reforms. 47
Regulatory reforms start by assessing the existing laws and principles, determine
they require any amendment or not and examine whether the anticipated measures
are compatible in terms of constitutional and international law and then propose an
alternative. Reforms of the existing regulatory frameworks are necessary to face the
challenges of the coming periods.
Decentralisation and user participation are the cornerstone principles of water sector
reforms.48 In the context of water sector reforms, decentralisation is often used to
refer to the transfer of responsibilities to civil society and the private sector rather
than its usual meaning of the transfer of authority from a central to a local
government.49 Under water sector reforms, participation is also understood as a way
41
Water was abundant, industrialisation and population was less.
42
This is true because of the significant variety of environment, weather and socio-economic
conditions in different parts of the world.
43
United Nations Development Programme, Human Development Report 2006- Beyond Scarcity:
Power, Poverty and the Global Water Crisis (Palgrave Macmillan, 2006) 11.
44
World Bank (WB) and Asian Development Bank (ADB).
45
Cullet, above n 34, 178.
46
Ministerial Declaration of the Hague on Water Security in the 21st Century, World Water Forum, 22
March 2000. Discussed in Chapter I II.
47
Water–A Key to Sustainable Development (Conference Report, Federal Ministry for the
Environment Nature Conservation and Neuclear Safety and Federal Ministry for Economic
Cooperation and Development, Germany, 3–7 December 2001) 27.
48
Government of the People’s Republic of Bangladesh, above n 7, 3.
49
Cullet, above n 34, 75.
239
to make water users more responsible for water management.50 As indicated by the
UN Commission on SD, participation includes involvement of stakeholders in
planning and management but does not compulsorily include participation in the
decision making process. 51 These two principles are much needed because of the
failure of centralised schemes to deliver benefits to water users at the local level. 52
At the global level, the Aarhus Convention53 codified the process, urging for specific
rights for community participation in environmental decisions.54 The 2004 ILA rules
on water resources acknowledge that participation is deeply ingrained in
international law and the rules provides for a general right to participate in water
management decisions and a right to have access to relevant information.55
In the context of regulatory reform process, one of the important things that need to
be ensured is that the unitary nature of water needs to be reflected effectively. The
sectoral nature of water law needs to be dismantled.56 Sources of inland water do not
respect state boundaries. Rivers and even underground aquifers often cut across state
boundaries. Water is an inseparable source, rainfall, rivers or any other surfacewaters
and groundwater are all parts of one system and water itself is also a part of larger
ecological system.57 Proposed reforms conduct a detail analysis of existing legal and
institutional arrangements to determine what needs to be kept, updated or changed in
accordance with updated circumstances in law58 and in the water sector in general.59
50
UNDP, ‘The Challenges of Water Governance’ in UNESCO (ed), Water: A Shared Responsibility,
(UNESCO-Berghahn Book, 2006) 43, 75.
51
Policy Options and Practical Measures to Expedite Implementation in Water, Sanitation and
Human Settlements, Commission on Sustainable Development, Report on the Thirteenth Session, Res
13/1, UN Doc E/2005/29-E/CN.17/2005/12 (11–22 April 2005) s A(a)(iv).
52
Cullet, above n 34, 75.
53
Aarhus Convention on Access to Information, Public Participation and Access to Justice in
Environmental Matters, opened for signature 25th June, 1998 (entered into force 30th October, 2001).
54
Donna Craig and M Jeffrey, ‘Non-Lawyers and Legal Regimes: Public Participation for
Ecologically Sustainable Development’ in David Leary and Balakrishna Pisupati (eds), Future of
International Environmental Law (United Nations University Press, 2010) 103, 103.
55
Berlin Rules on Water Resources, International Law association, Report of the Seventy-first
Conference- Berlin (2004), art 18.
56
Cullet, above n 34, 29.
57
P C Bansil, Water Management in India (Concept Publishing Company, 2004) 505.
58
Such as constitutional amendments or Supreme Court judgements.
59
Cullet, above n 34, 179.
240
There are some necessary elements that any country needs to consider when
preparing a regulatory framework for water resources management. The
recommendations and resolutions of the Mar del Plata Conference 60 have been
reflected in water legislation worldwide. The detailed road map for water legislation
set out in the recommendations is still valid, constructive, relevant and practical. The
Dublin principles61 have sharpened and focused the Mar del Plata recommendations.
However, it should be emphasised that the reformation of water legislation must
accommodate emerging trends in water resource management, development and
protection62 in order to control water pollution effectively.
A Preparing Water Legislation
At the international conferences and forums held since 1970, most urged
governments to adopt policy and legislation that lay down a clear set of rules for
dealing with water resources issues and are flexible to accommodate future changes
in priorities and perspectives.63 A detailed road map for both water legislation and
national water policy were in place along with other features in the Mar del Plata
Conference. With regard to water legislation, the recommendations issued in the
conference are still highly relevant and legitimate in a Bangladeshi context. Some
recommendations are:64
1. A review of existing rules and regulations on water resources should be prepared
in order to improve water resource management, protection of quality, prevention
of pollution, effluent discharges and abstraction.
2. The legislation should be comprehensive and be consistent. It should be framed
in the simplest way possible and spell out the responsibilities and powers of
respective governmental agencies.
60
The conference recommended that national water policy should be conceived and carried out within
the framework of an interdisciplinary national economic, social and environmental development. The
NWPo of Bangladesh has replicated that.
61
Discussed in Chapter 1II.
62
Salman M A Salman and Daniel D Bradlow, Regulatory Frameworks for Water Resources
Management A Comparative Study (The World Bank, 2006) 141.
63
Discussed in Chapter 5 III.
64
See the Report of the UN Water Conference, Mar del Plata 14-25 March 1977 (Report, UN
Publications, Sales No. E 77 II.A.12).
241
3. Implementation procedure should be easy and priority to the public interest while
protecting reasonable interest of individuals.
4. The rights, obligations and responsibilities should be define clearly and
emphasise the role of public bodies in controlling the quantity and quality of
water.
5. Priority should be accorded to the effective enforcement of the legislation. To
achieve this object, where necessary administrative and other arrangements
should be strengthened.
6. Public participation should be an integral component in the decision making
process. Every effort needs to be made to convince the public.
7. Special emphasis should be given to the role of women.
The Mar del Plata Conference recommended that national water policy should be
carried out within the framework of an interdisciplinary national economic, social
and environmental development policy. 65 Water policy should recognise water
development as an essential infrastructural facility in a country’s development
plans.66
Proposed legislation needs to address the protection of water resources. Such
protection includes the prevention and abatement of both point and non-point source
pollution;67 regulation of the discharge of wastewater, other wastes and particularly
irrigation practices; and adoption of detailed procedures for enforcement of WQS,
particularly for water for domestic uses.68 It may be considered that the above issues
need to be addressed under the umbrella of management of water resources. The
legislation needs to be specifying the responsibility of the government of each level
for ensuring protection of water quality.
The purpose of reviewing existing rules and regulations is to find areas of strength
and weakness and examine, based on the implementation experience, where the rules
worked and where not. This process will facilitate identifying both issues and gaps
65
Salman and Bradlow, above n 62, 5.
66
The NWPo of Bangladesh was adopted by the Ministry of Water Resources 1999. This policy is
fairly comprehensive, elaborative and addresses the issues highlighted in the Mar del Plata
recommendations in a shorter but focused manner.
67
The most commonly accepted definition of the term pollution is that used by the UNCW 1997, see
Chapter 2.
68
Salman and Bradlow, above n 62, 149.
242
that need to be addressed in proposed statutes. The basic element for the regulatory
framework for water resource management, to be included in one legal instrument to
the possible extent, is important. This way, policymakers, different users and other
concerned entities can rely on a single specific legal instrument. 69 This approach
decreases inconsistency or even conflicting provisions scattered in a number of laws.
It also decreases the possibility of gaps or overlapping provisions in different
legislation. 70 Having said that, some by-laws are still needed to address in detail
some of the basic provisions in the water law. The advantage of by-laws is that they
provide flexibility for meeting changing circumstances without the amendment of
the basic legislation. However, this flexibility should only be used where necessary
otherwise it could result in loss of predictability in water legislation.71
Major water issues 72 are increasingly taking a place in the constitutions of
countries. 73 Such constitutional provisions 74 provide guiding principles for water
legislation. 75 The process of revising an existing law or even formulating a new
water law should be transparent, participatory and inclusive. The process needs to
involve concerns of governments, ministries and agencies, representatives of
different stakeholders and the private sector. Development and management of water
should be based on a participatory approach involving users, planners and policy
makers at all levels.76
69
The government of Bangladesh enacted The Water Law 2013 as an umbrella act to adequately
manage inland water of the country.
70
Salman and Bradlow, above n 62, 143 .
71
Ibid.
72
Ownership, accessibility and protection.
73
Such as the constitutions of Brazil and South Africa. The Constitution of Brazil clearly mentioned
the establishment of ‘a national system for management of water resources’ and defines criteria for
granting rights of water use (art XIX). This is the only constitution that explicitly requires establishing
a national water resources management system. The Constitution of South Africa establishes that
‘Everyone has the right to have access to … sufficient food and water, and social security’ (art 27).
This is the first explicit constitutional reference of the right to water.
74
Such as right to water or establish a national system of water management.
75
In the 15th amendment of the Constitution of Bangladesh, amended in 30th June 2011.
76
Principle 2 of the Dublin principles.
243
B Underlying Principles and Priorities
The broad framework should consider and ensure the application of basic principles
throughout the water sector irrespective of its source and use. Difference can only be
made at the more specific implementation level depending on local circumstances,
but the basic framework should be the same because of the unitary nature of water
and the water cycle.77 The various links from the local to the national level indicate
that there is a need for a comprehensive national framework to mobilise efficiency in
terms of planning and coordination within international stages.
Inland water is part of a global cycle and no individual or government has the
capacity to control it. Water cannot be compared to any other substance because of
its special role in sustaining life on Earth. Thus, water needs to be treated
consistently regardless of its source or use. 78 Water availability and quality is
dependent on numerous interrelated elements from the local to the global level and
these elements each have significant influence on one another. While rainwater
harvesting and groundwater recharge in general are of great importance at the local
level, this can only be useful if groundwater is not polluted by various other usage of
water. Also, water laws are not the only determining factor in local actions or
practice, environmental laws and regulations play a role to regulate course of actions.
Other influencing aspects on national water policies range from national to
international policies regarding global warming and sea level rise. It is therefore
unhelpful to conceive of water as a substance that can be controlled and
appropriated.79
The most efficient and effective outcome of water pollution control is obtained
within a framework of defined policies, plans and coordinating activities. There may
be obvious shortcoming in the existing situation that needs urgent attention and for
which remedial actions may be required independently of the overall general policy
and planning. In Bangladesh, problems associated with an absence of clear
responsibilities, with the overlapping of institutional boundaries, duplication of work
77
1992 Rio Declaration on Environment and Development, Agenda Item 21, UN Doc
A/CONF.151/26 (14 June 1992) para 18(35).
78
The concept of differentiating water as public or private is somewhat ridiculous from a hydrological
prospective.
79
Cullet, above n 34, 188.
244
and a lack of coordination between involved institutions are common obstacles to
effective water pollution control.80
C Management Principles
The challenges facing water resources are daunting, and environmental degradation,
urbanisation and industrialisation are compounding the challenges.81 In this context,
international principles facilitate a better understanding of the implications of various
approaches for pollution control or sharing common water resources, but the
solutions for inland water pollution control need to be developed by considering the
national needs and institutional capacity. It is not possible to completely adopt
international practices in a new context. However, suitable policy measures for
inland pollution can be formulated in light of the lessons learned from the
international experiences. Some recognised management and guiding principles
provide a suitable basis for better management of water pollution. 82 The policy
maker should consider those benchmark principles prior to formulating any policy
and needs to make necessary changes to adopt those in any existing policies.
Existing international water law largely focuses on transboundary waters.
International water law has progressed over time from being primarily concerned
with rules concerning navigation to progressively including non-navigational uses of
transboundary watercourses.83 A series of well-developed management principles are
recognised in international water law. These principles, to some extent, have
influenced the development of legal provisions in relation to inland water pollution
in Bangladesh over time. As a result, some of those basic principles are embedded in
the domestic water law.
1
Prevent Pollution Rather than Treat
Remedial actions to clean up polluted water bodies are generally much more
expensive than applying measures to prevent pollution from occurring. 84 Although
wastewater treatment facilities have been improved, the most logical approach is to
80
Alaerts, above n 1, 283.
81
Salman and Bradlow, above n 62, 163.
82
Discussed in Chapter 4 II.
83
Steffen C McCaffrey, The Law of International Watercourses (Oxford University Press, 2007) 64.
84
Larsen, Ipsen and Ulmgren, above n 24, 3.
245
prevent the production of wastes that require treatment. Thus, approaches to control
water pollution should be focused on wastewater minimisation, recycling of water
and refinement of raw materials and production processes, instead of giving priority
to traditional end-of-pipe treatments. An increasing proportion of inland water
pollution originates from diffuse sources that cannot be controlled by the above
mentioned approach. Thus, best environmental practice can give guidance on how to
prevent or reduce pollution of inland water bodies.
2 Apply the Precautionary and Polluter-pays Principles
Discharge of suspected hazardous substances into inland water is widely accepted,
even though scientific research has explicitly proved a pivotal connection between
the substance and a well-defined environmental impact. Domestic, industrial and
agricultural users produce large quantities of waste and water resources provide a
cheap and effective way of disposing of many of these.85 Thus, the precautionary
principle 86 should be implemented to avoid potential environmental damage by
hazardous substances. The polluter-pays principle87 is not a new concept, where the
costs of pollution prevention, control and reduction measures are borne by the
polluter, but it has not yet been fully implemented.88 This is an economic instrument
aimed to encourage and induce polluter behaviour that puts less strain on the inland
water resources.
3 Introduce Water Pollution Control at the Lowest Appropriate Level
The appropriate level is the level where significant impacts are experienced. The
national level for major water bodies is where no significant water pollution impacts
are anticipated for neighbouring states. If significant impacts occur across several
nations, the appropriate management level is international. Where a specific water
quality issue only has a possible impact within a local community, then the
community level is the proper management level. The intention of this principle is to
85
Christopher F Mason, Biology of Freshwater Pollution (Pearson Education Limited, 4th ed, 2002)
15.
86
Discussed in Chapter 4 II D.
87
Ibid 4 II E.
88
Larsen, Ipsen and Ulmgren, above n 24, 4.
246
initiate a decentralisation control process to prevent inland water from pollution.89 It
is important to know whether a certain water pollution problem exists only in a local
community or whether it is a national problem. Depending on situation it might only
be necessary to consider a local by-law or imposing regulations nationwide or take
other appropriate measures.
4 Participatory Approach
The participatory approach raises awareness of the importance of water pollution
control between the policy makers and general stakeholders. Decisions should be
taken with the involvement of the public affected by the planning and
implementation of water pollution control activities in order to get more benefit. It
may take time but ideally contributes to the convergence of the view of the public
and governmental authorities on water pollution control measures. 90 Cooperation
need to be established in order to ensure the coordination of water pollution control
efforts within water-related sectors. Such cooperation allows decision makers from
different sectors to influence water pollution policy, and put forward ideas and plans
from different sectors with impacts on water quality.
5 Promote International Cooperation on Water Pollution Control
An effective solution for transboundary water pollution control requires international
cooperation and coordination. In a number of cases, 91 international bodies with
representatives from riparian states have been successfully working on the pollution
control of the shared water resources with the objectives of strengthening
international cooperation.92 There are widely accepted principles93 on water pollution
control, and a few countries have already started international cooperation but there
is still enormous opportunity for concerted planning and action at an international
level.
The above discussion reveals that often inland water management makes social and
economic life more secure than it would otherwise have been. Thus, societies will
89
Ibid 6.
90
Ibid 7.
91
The Danube, Mekong, Indus and Ganges rivers.
92
Larsen, Ipsen and Ulmgren, above n 24, 8.
93
Discussed in Chapter 5 II A.
247
use their own practices of governance to determine the appropriate balance between
social, economic and environmental goals, which will change over time. Most
importantly, contradiction between the protection of inland water pollution and
promotion of economic and social development is not necessary. 94 Inland water
resources management entails some other key factors95 as well. Better management
of water differs at different scales but often needs the support of a sound policy
framework at regional and national levels. In addition, water resources planning and
management must be linked with overall SD strategy and the public administration
framework of a country.96
Awareness and concern about inland water pollution has been increased all over the
world. Internationally, new approaches towards achieving sustainable exploitation of
water resources have been developed.97 A properly developed policy framework is a
key element in the protection of inland water pollution. A number of possible
elements for such policies have been identified and recognised in different
international legal instruments. 98 The declarations and resolutions of the many
different forums and conferences that have addressed the challenges of the water
sector urged the states, inter alia, to adopt water legislation. They call for water
legislation that lays down clear and comprehensive rules but that is sufficiently
flexible to accommodate future challenges and changes in priorities and perspectives.
The ‘priority actions’ recommended by the International Conference on Freshwater
held in Bonn, December 2001, refer only occasionally to legislation, but the Bonn
‘actions’
99
imply the availability of a supportive and enabling domestic,
94
Roberto Lenton and Mike Muller, ‘Conclusions: Lessons Learned and Final Reflections’ in Roberto
Lenton and Mike Muller (eds), Integrated Water Resources Management in Practice Better Water
Management for Development (Earthscan, 2009) 205, 207.
95
Ibid 208. Effective water management requires: 1) the sustained collective effort and engagement
women and men in all sector of society to successfully achieve the goal. 2) economically, socially and
environmentally sound investments in infrastructure as well as competent and trusted management
institutions and 3) policy reforms and their implementation will only succeed if pragmatic, sensibly
sequenced institutional approaches that respond to contextual realities have the greatest chance of
working in practice.
96
Ibid.
97
Larsen, Ipsen and Ulmgren, above n 24, 1.
98
Discussed in Chapter 5 VI.
99
Stefano Burchi, ‘Water Laws for Water Security in the Twenty-first Century’ in Julie Trottier and
Paul Slack (eds), Managing Water Resources Past and Present (Oxford University Press, 2004)
117,124.
248
legal/regulatory framework. 100 Awareness has grown over the need to develop
sustainable practices for the protection, efficient use and management of global and
regional water resources. This is reflected in the series of global initiatives,
commitments and activities related to optimal utilisation and management of water
resources101
In addressing water regulation at the national level, international water law remains
of limited relevance because existing conventions largely focus on international
watercourses and transboundary impacts. Moreover, the reasons behind inland water
pollution are partially domestic in nature. Thus, international water law fails to
provide an effective basis for allocating and protecting water and is not developed in
relation to cooperation on issues related to water found within national boundaries.102
Moreover, when establishing a link between international and national water law, in
particular, in the context of ongoing reforms, it is hard to find a conventional
relationship. International law mostly focuses on shared watercourses but national
water law in most countries of the world address much broader issues.103 Overall, an
absence of broader framework in international water law does not contribute much to
the development of national water law.
D Institutional Arrangements
Inland water pollution control embraces three main functions: water quality
management, regulation and standard setting and collection and treatment of
domestic and industrial wastewater. Each function needs an appropriate institutional
arrangement in order to make the whole system work effectively. In many instances,
100
Framework providing in particular: 1) stable and transparent rules that enable all water users to
gain equitable access to, and make use of, water; 2) water resources planning mechanism; 3)
mechanisms for the allocation of water resources that should balance competing demands and take
into account the social, economic and environmental values of water, while ensuring efficiency of
water use; 4) arrangements to protect ecosystems and preserve or restore the ecological integrity of
groundwater, rivers and all other inland water sources; 5) effective legal frameworks for protecting
water quality (in this instance Bonn ‘actions’ make explicit reference to legislation; 7) the
participation of the people in general and of local stakeholders in particular, in managing local water
needs and resource.
101
K B Sajjadur Rashid, Water Resources Management with Examples from Bangladesh (AH
Development, 2011) 11.
102
Antoinette Hildering, International Law, Sustainable Development and Water Management
(Eburon, 2004) 58.
103
Cullet, above n 34, 25.
249
the regulatory function has proved to be a comparatively easy part of the overall task.
There is not any existing ideal type that could be prescribed to any country, at any
moment, in the world. In order to render the organisations flexible, task and
performance oriented and financially well managed, they require a large degree of
autonomy. For this purpose, the conventional command-and-control must be
deregulated and replaced by measures that ensure self-regulation. This may include
arrangements for competition, avoidance or control of monopolies or the prevention
of executive organisations from regulating themselves.104
The successful implementation of a government’s policy primarily depends on the
institutional arrangement. Other factors such as availability of capital, technology
and human resources (expertise) are also important prerequisites. 105 However, the
maximum benefit can only be generated if the institutional arrangements make the
resources work effectively. Proposed legislation needs to cover widely the
institutional arrangements
for dealing with
water resources.
Responsible
institutions106 for implementing water policies and strategies suffer from deficiencies
and drawbacks in Bangladesh. They are often inefficient 107 and below par in the
manner they operate in various aspects.108
While accepting that much of the work needs to be carried out by a variety of
organisations at different levels, governments tend to keep control by means of
regulations. For example, over the past decade, the government of Bangladesh has
defined nationwide environmental and WQS and decided on the targets for pollution
control achievements. Multiple government authorities and organisations are
working on inland water pollution in Bangladesh. The involvement of multiple
authorities should be aborted in favour of a single exclusive authority that would be
responsible for inland water pollution control of the country. To this purpose, an
IWMA could be formed to work under the supervision of the MoEF. This should be
104
Alaerts, above n 1, 242.
105
Ibid, 221–222.
106
Discussed in Chapter 6 III.
107
Such as implementations of rules, accountability and responsiveness toward users’ needs, legal and
regulatory aspects.
108
Q K Ahmad et al, ‘A Framework for Sustainable Development of the GBM Region’ in Q K Ahmad
et al (eds), Ganges-Brahmaputra-Meghna Region A Framework for Sustainable Development (The
University Press Limited, 2001)1, 13.
250
a special governmental entity solely empowered to manage and regulate inland water
in the entire country. In this context, the existing activities of other relevant
government authorities109 should be merged into this authority. This process could
eliminate the observed problems110 in order to protect inland water from pollution.
An institution can only perform well if they are properly managed, guided and
staffed. This implies that the staff has a clear and shared view of their purpose and
how this will be achieved. Moreover, adequate staff is needed with the right
combination of levels of expertise and leadership, and require dynamic personnel
management.
111
Institutional architecture should from one perspective ensure
consistency of policy over the whole territory, yet also allow for sufficient flexibility,
particularly in order to respond to local issues and demands and to adapt to changing
conditions in the country. The first requirements call for a centralised, top-down
approach, with adequate control from the top. The second, however, tends to put
more responsibility at the local levels and demands a bottom-up approach.112
The business as usual approach of addressing water problems by top-down methods
is in many respects outdated. Top- down approaches may remain necessary for large
and medium scale technical projects such as building of new reservoirs or
transferring water projects. Bottom-up approaches include household scale water
supply, efforts at crop production through soil and water conservation measures and
the use of individual initiatives to have irrigation water available in small, local
watercourses.
113
Water sector planning is now changing from a top-down
technocratic approach to a bottom-up grassroots approach and giving emphasis to
establish a genuine participatory water management environment. Meeting each goal
depends on providing an adequate water supply. Mechanisms to reduce the level of
top-down regulation can be done through the decentralisation and devolution of
decision making to lower administrative levels as possible; in some cases, water
109
Discussed in Chapter 6 III.
110
Problems include blame culture, double standards and the absence of coordination within the
existing government organisations.
111
Alaerts, above n 1, 230.
112
Ibid 227.
113
Malin Falkenmark and Gunnar Lindh, ‘Water and Economic Development’ in Peter H Gleick (ed),
Water in Crisis A Guide to the World’s Fresh Water Resources (1993) 80, 91.
251
quality management organisations should be allowed to operate as autonomous
entities without explicit interference by the government.
The organisation that would fulfil the requirements best in a given country and in a
particular period of its development depends on the local characteristics, such as the
hydrogeology and topography, industrialisation, culture, economy and the natural
environment. The institutional arrangements will have to adjust continuously
because the institutional environment around the sector changes so much. Moreover,
there is no secure, optimum model for institutional arrangements that would suit all
countries, at all times.
E Enforcement of Regulations and Dispute Settlement
An important role can be played by the government in preventing and controlling
inland water pollution through enacting legislations with specific reference to inland
water pollution. Legislation is the oldest and most widespread method sometimes
referred to as the command-and-control or regulatory approach.114 The basic premise
is that the state can place restrictions in order to reduce or control pollution. The
authority and ability of any state to regulate, allocate and control its water resource
depends primarily on whether the state has in place a legal framework for dealing
with water resources and, if it does, what approach the framework prescribes for
ownership and allocation of water. This framework could be a separate water law, as
in most countries; provisions in different laws; administrative or executive decrees or
regulations; customary or traditional law; or even court decisions. Increasingly,
countries are making explicit references in their constitutions to their water resources
and to the need to manage them properly and efficiently.
The demand for inland water is increasing sharply and rapidly because of the growth
of population, the pace of urbanisation and the process of economic development.115
The pressure on the available (finite) supply is already acute and likely to become
severe and could the cause of conflicts between different uses, user groups, areas and
political units. As water increasingly becomes a scare resource, it is threatened both
114
Julie Stauffer, The Water Crisis: Constructing Solutions to Freshwater Pollution (Earthscan, 1998)
65.
115
Ramaswamy R Iyer, Towards Water Wisdom Limits, Justice, Harmony (Sage Publications, 2007)
18.
252
quantitatively and qualitatively. Competing demands between different uses and
users are becoming steadily competitive; countries are moving faster in the direction
of adopting water resource legislations to address in detail different issues facing or
emerging in the water sector. In Bangladesh, provisions that regulate water resources
are scattered through different laws and regulations and in some instance they are
incompatible with each other. Overlapping jurisdiction of different entities
functioning in water resources management is also common.116 Existing legislation
is often complex, lags behind modern management practices and techniques and
perpetuates an undesirable fragmentation of responsibilities between different
entities within a government.
The widespread process of legal reformation in relation to inland water requires
much more attention than it has been given up until now. In this context, the main
issue that arises is not whether water law reforms are necessary but what kinds of
reforms should be introduced or most effective for Bangladesh. In this thesis,
suggested legal reformation focuses on the local and national level where water law
needs further development.
V FUTURE INITIATIVES FOR THE IMPROVEMENT OF INLAND WATER SITUATION
Over the past few decades, the rapid development of environmental law has been
integrated in direct and indirect ways in water instruments. The links between water
and environment have been taken up in different ways in recent years. First, some
environmental concerns have been incorporated in international and national water
law. Second, a number of principles developed through environmental law also
apply in the context of water, and third, water sector reforms are largely premised on
the need to address environmental aspects of the water sector.117 The environmental
concerns are increasingly important in water law. Water scarcity is usually not
defined as absolute scarcity of freshwater, which is not yet a global concern. Rather,
it is the increasing scarcity of clean freshwater, whether due to excessive
116
Discussed in Chapter 6 III.
117
Cullet, above n 34, 59.
253
withdrawals or to decreasing quality. Scarcity and misuse of inland water are thus
seen as threats to the protection of the environment.118
Some of the basic principles of environmental law are directly applicable in the
context of water. This is a logical extension of the fact that water has been a direct or
indirect concern in environmental law from the outset.119 Most of the environmental
law principles have relevancy in the context of water; some of them are of special
relevance to water law. The principle of prevention seeks to ensure that measures are
taken to avoid the known negative environmental impacts of planned activities. The
inclusion of this principle in water law has proved effective to control inland water
pollution. The precautionary principle builds on the idea of prevention but adds an
important dimension. It suggests that measures must be taken to avert environmental
harm even in situations where scientific knowledge is not conclusive as to the exact
impacts of a planned activity.120 It is one of the principles of the UNECEWC 1992,
providing a basis to implement commitments to prevent, control and reduce
transboundary impacts of water. 121 However, not a single water legislation in
Bangladesh directly includes this principle. The synergy between environmental law
and water law has been built over the last couple of decades. Indeed, links between
water and environment are increasing; both are equally important.
F Protection of Water Resources
Water is a necessary commodity in household and municipal activities and an
essential factor in agricultural and industrial production.122 It is an important factor
for economic development but other factors have an impact on a nation’s economic
development. For example, a country where agriculture is the predominant economic
base is likely to exhibit a stronger relationship between water and development than
an industrial country less dependent on agriculture. Moreover, water demand in
118
Introduction to the Dublin Statement on Water and Sustainable Development, International
Conference on Water and the Environment, Dublin, 31 January 1992.
119
Declaration of the United Nations Conference on the Human Environment, Stockholm, UN Doc
A/CONF.48/14/Rev 1 (16 June 1972) principle 2.
120
P Sands, Principles of International Environmental Law (Cambridge University Press, 2003) 247.
121
UNECEWC 1992 UN Doc ENWA/R.53 (17 March 1992) art 2(5)(a).
122
Falkenmark and Lindh, above n 113, 80.
254
developed countries may likely be reduced through technological advances in
managing industrial processes.123
Water management in Bangladesh is a most serious problem because to a large
extent water is the ‘lifeblood’ of Bangladesh. Although water is an important asset,
its quality is being adversely affected by pollution and increasing use of it. Further,
the allocation of water among users appears not to be optimal from an economic
point of view and economic benefits from water resources are not maximised at
present in Bangladesh. 124 A developing country like Bangladesh does not have
separate water pollution and socioeconomic crises; they are interdependent and
interacting. The country has the problem of disposal of the wastewater and other
wastes from urban centres that now threaten natural ecosystems. Despite the
technological development, water demand in growing urban areas cannot be satisfied
indefinitely. Decision makers must carefully consider long-term holistic plans that
fulfil the demands for sustainable socioeconomic development at a national as well
as a global level.125
6 Groundwater
To facilitate the development and management of groundwater resources of
Bangladesh, strengthening and capacity building of appropriate organisations is
required. Thus, the creation or identification of an organisation like a ‘Groundwater
Board/Agency/Commission’ has been recommended by the Groundwater Task Force
(GWTF) in 2002 and other experts. As BWDB has the mandate of investigating and
monitoring the status of groundwater all over the country and has been working in
this area for four decades, field and laboratory facilities as well as appropriate
manpower of this organisation should be strengthened for effective management of
groundwater resources for agricultural, rural and urban water supplies. A
‘Groundwater Act’ or ‘Groundwater Conservation Act’ recommended by the GWTF
123
Ibid.
124
Mohammad Alauddin and Clement Allan Tisdell, The Environment and Economic Development in
South Asia (St. Martin’s Press, 1998) 38.
125
Falkenmark and Lindh, above n 113, 87.
255
and experts to control all sorts of activities needs to be enacted soon to ensure
sustainable long-term use of groundwater.126
Dependency on limited groundwater resources can be reduced by the utilisation of
available surfacewater. Conjunctive use of surfacewater will minimise the seasonal
fluctuation rate of the water table and lessen stress on groundwater resources. In
addition, excessive withdrawal of groundwater for irrigation, industrial and domestic
use needs to be controlled by policy and legislation. Moreover, the regional
modelling of the groundwater systems has to be developed to plan for agricultural,
rural and urban water supplies. Effective groundwater resource management can be
used to forecast the groundwater situation in advance for dry season. This can also
help in developing priorities for long-term use to minimise the increasing stress on
groundwater supply in an area, and to assess the causes of groundwater pollution and
alternative measures of protecting the resource in the future.127
7 Surfacewater
Different ways of using water very often lead to conflicting functions. Industries
producing large amounts of wastewater may pollute the ground or surfacewater in
the surrounding aquifer, which in turn affects the quality of water pumped for
drinking purposes. The increase of water pollution from industrial activities may
affect the quality of surfacewater; also, the groundwater table is lowered and could
affect agriculture if it is over-pumped.128 Industries are the main sources of different
types of chemical contamination in inland water resources. Different types 129 of
persistent industrial chemicals now contaminate and are detected in every step of the
water cycle. Each sector of industry produces its own particular combination of
pollutants. The metal working industry discharges chromium, nickel, zinc, cadmium,
lead, iron and titanium compounds; textiles and leather industry release sulphates
126
Anwar Zahid and Syed Reaz Uddin Ahmed, ‘Groundwater Resources Development in Bangladesh:
Contribution to Irrigation for Food Security and Constraints to Sustainability’ (26 March 2011) 27, 45
<http://publications.iwmi.org/pdf/H039306.pdf>.
127
Ibid 44.
128
Jacques Ganoulis and Jean Fried, ‘Transboundary Water Resources Management: Needs for a
Coordinated Multidisciplinary Approach’ in Jacques Ganoulis, Alice Aureli and Jean Fried (eds),
Transboundary Water Resources Management: A Multidisciplinary Approach (Wiley VCH, 2011) 9,
19.
129
Organohalogen compounds, pesticides and polycyclic aromatic hydrocarbons.
256
and chromium based substances; the pulp and paper industry relies heavily on
chlorine-based substances and as a result effluents contain dioxins and furans as well
as SSs and organic wastes.
Previously, water resource planning predominantly focused on quantity of water
supply rather than its quality. Meanwhile, water quality has progressively
deteriorated
due
to
ever-increasing
withdrawals
for
various
use,
rapid
industrialisation and insufficient stream flows failing to dissolve pollutants during
dry seasons. 130 The increased use of agrochemicals and discharge of untreated
domestic and industrial effluents into the inland water resources add further
complexity in this matter.131 Increasing water pollution from all sources is a major
issue, and control of non-point sources of pollution is an urgent requirement for
developing countries.132 Compared to domestic wastewater disposal, the situation is
even more serious and complex with industrial wastewater discharges. Industrial
wastewater discharges receive inadequate treatment in most parts of the country.
With fast industrial and urban growth, proper wastewater management is rapidly
becoming a serious social, economic and health issue in Bangladesh.133
Governments are primarily responsible for ensuring sustainable and equitable
management of water.134 Water is considered public property and the superior user
right belongs to the government. The government becomes the public custodian of
water resources on behalf of the entire population of the state.135 This thesis is argues
that both the ground and surfacewater should be owned, controlled, regulated and
allocated by the state.
130
Discussed in Chapter 3 III.
131
Ahmad et al, above n 108, 10.
132
Asit K Biswas and Cecilia Tortajada, ‘Changing Global Water Management Landscape’ in Asit K
Biswas, Cecilia Tortajada, Rafael Izquierdo (eds), Water Management in 2020 and Beyond (2009) 1,
22.
133
Ibid 23. Discussed in Chapter 2 VII.
134
Declaration of the Ministerial Session of the International Conference on Freshwater, held in Bonn,
Germany, December 2001.
135
Carl J Bauer, Siren Song – Chilean Water Law as a Model for International Reform (RFF Press,
2004) 31.
257
G Conservation and Demand Management
Current approaches towards water resources management tend to be supply
driven.136 There is a pragmatic need to shift from the conventional approach to water
conservation137 and demand management138 for the sustainability of water resources
and environment. Water conservation potentially makes some positive impacts in
order to promote and attain sustainability in different kinds of water use.
Conservation is the minimisation of loss or waste, care and protection of water
resources and the efficient and effective use of water. Conservation should be
considered both an objective as well as a strategy in water resource management.
The goals of water conservation efforts include sustainability,139 energy and habitat
conservation.140
In its simplest sense, water demand management means getting the most from the
water. Water demand management includes any action that increases the amount of
useable freshwater or that keeps water cleaner in the course of that use than it
otherwise would be. It is the development and implementation of strategies aimed at
influencing demand, so as to achieve efficient and sustainable use of a scarce
resource. 141 Demand management is aimed at increasing the supply according to
demand, which is in contrast with the traditional supply management. Demand
management targets the water user rather than the supply of water to achieve more
desirable allocations and sustainable use of water. This strategy is mainly focused on
non-structural measures142 to change the behavioural pattern of water users and the
creation of the institutional and policy environment that enables this approach.143
136
Supply-driven means whenever and wherever there is a shortage of water, the solution usually
involves the capital investment in new water supply schemes or projects.
137
Conservation is the minimisation of loss or waste, care and protection of water resources and the
efficient and effective use of water.
138
Demand management can be considered a component of water conservation.
139
The withdrawal or abstraction of freshwater from a resource should not exceed its natural recharge
limit, in order to ensure availability of inland water for future generations.
140
Efforts need to be put into saving energy in energy demanding tasks and minimisation of human
water use could help to preserve inland water habitats for local aquatic life.
141
Hubert Savenije and Pieter van der Zaag, ‘Water as an Economic Good and Demand Management
Paradigms with Pitfalls’ (2002) 27(1) Water International 98, 99–100.
142
Such as economic and legal incentives.
143
Savenije and Zaag, above n 141, 100.
258
Thus, water demand management is a strategy that is adopted and implemented by a
water institution or consumer to influence the demand and usage of water in order to
achieve environmental protection, sustainability of water supply and services,
economic efficiency, social development and equity and political acceptability.
Restraining demand and managing demand within availability seems more important
than anything else. The approach must be to meet the essential water needs and
curtail the less essential or non-essential uses and restrain and manage the demand
with the availability to the greatest extent possible.144 Water demand management is
an integral part of IWRM. It is usually approached through implementing a wide
range of technical, planning, economic, regulatory and participatory instruments, in
order to influence water demand and to improve the efficiency and effectiveness of
water utilisation. 145 Water demand management focuses on strengthening water
resources allocation, conservation and protection according to the water resource
availability to increase overall water-use efficiency and benefits.
In Bangladesh, the individual has only water-use rights and the government reserves
the right to allocate water for different users to ensure equitable distribution and
efficient use.146 However, well-defined water-use rights have been absent. This thesis
argues that a regulatory reform is necessary to regulate the use of water through
prioritising sectoral allocation in line with the declaration specified in NWPo 1999.
H Policy and Legislative Changes
Policy statements regarding water pollution control can be found within the
legislative framework such as government acts, regulations, different actions and
master plans. However, the statements are rarely coherent; inconsistencies and
contradictions often exist because they have been developed separately with different
purposes. Control of water pollution is usually addressed in environmental
legislation and action plans, but also within the framework of water resources
management planning.147 Water pollution control policy needs to be coherent with
144
Iyer, above n 115, 229.
145
Bekhithemba Gumbo, Laura Forster and Jaap Arntzen, ‘Capacity Building in Water Demand
Management as A Key Component for Attaining Millennium Development Goals’ (2005) 30 Physics
and Chemistry of the Earth 984, 984.
146
Rashid, above n 101, 90.
147
Larsen, Ipsen and Ulmgren, above n 24, 1.
259
government statutes, legislations and constitutions. Policy statements should be
defined for environment and water resources management as well as for particular
sector development. Some general principles that should be considered within the
policy making process include consultations and consensus with all other ministries
relevant for water resource management and organisations responsible for overall
economic development policies. Further, appropriate water resources policy
statements should be taken into account when formulating new development policies
for other sectors, and the policy statements must be realistic, should be formulated
clearly and concisely and need to be relatively long-lived because they must pass a
laborious political adoption process.148
The policy and legal reform should incorporate the scope to impose strict regulations
at short notice in case of emergency situations. In this context, agreements between
polluters and regulatory authorities could be formed in order to ensure the protection
of inland water. Moreover, provisions should be included within the legislation for
stakeholders’ participation and consultation and also for the availability of
information both by the regulatory authority and polluters.149 In a nutshell, there is
not a once-and-for-all solution for addressing water-related issues. It requires
systematic improvement and cooperation of different institutions managing inland
water, approaches and instruments at multilevels to provide adequate resources for
long-term planning, assessment, decision making, monitoring and continuous
learning.
The regulatory authority needs to be equipped with appropriate methods and
technical personnel to coordinate the activities of regular monitoring of effluent
discharges in the water resources. Raising public opinion and awareness of the
inland water pollution can play a crucial role. In this respect, specific tasks and
responsibilities of NGOs and CBOs need to be specified to ensure their effective
involvement in inland water pollution control. These organisations can be directly
involved in a regular and systematic monitoring process and raising the level of
awareness of the public regarding the impact of inland water pollution and
148
Ibid, 2.
149
Rahman, above n 28, 146.
260
maintaining social pressure on the authority and polluters to keep the inland water
sources clean and healthy.
I
Political Consensus
Bangladesh has lacked established democratic conditions and strong civil institutions
since independence. As a result, the country is distrusted, especially when
intervening in the allocation of rights to natural sources.
150
Disputes over
transboundary water resources are considered an economic, social and political
problem. The water availability challenges in the transboundary water resources that
always influence both the quantity and quality of the available water lead to water
disputes among stakeholder states and create geopolitical problems. 151 Politics is
central to any intra-social conflict and this is particularly applicable in the case of
water-sharing conflicts among riparian states; people depend on their government
and politicians in times of crisis to resolve water issues.152 In many cases, political
leadership is capable to guide a society or state to minimise or resolve violent water
conflicts. However, disorganised political leadership or tricks in the political
negotiations allow water conflicts to develop in severity beyond what would
otherwise have been the case.153
Efficient water management and assured share of dry season flows of transboundary
rivers are vital questions for Bangladesh. As water is a basic need for human beings,
effective cooperation between the riparian countries would ensure sensible water
management in the region and hence reduce the sources of conflicts and promote
cooperation in other sectors as well. Unless regional and international communities
act now to promote multilateral cooperation in the GBM basin, there will be a
serious humanitarian and ecological crisis in Bangladesh as well as for the whole
region. The regional and international community can play a lead role in raising the
issue on the regional or international agenda and also promoting effective
150
Geof Wood, ‘Contesting Water in Bangladesh: Knowledge, Rights and Governance’ (1999) 11
Journal of International Development 731, 751.
151
Murshed Ahmed, ‘Regional Cooperation on TWRs Management: Opportunities and Challenges’
(Paper presented at the Bangladesh Economic Association Conference, Dhaka, Bangladesh, 2007) 10.
152
Samuel P Huston, Management of Water Scarcity and the Application of Conflict Resolution:
Cases of India and China (Masters Thesis, University of Bradford, 2006) 31.
153
Kishore C Dash, ‘Domestic Support, Weak Governments, and Regional Cooperation: A Case Study
of South Asia’ (2007) 6(1) Contemporary South Asia 57, 63.
261
transboundary multilateral cooperation between all riparian countries154 of this basin.
Integrated transboundary water resources management based on principles of
equitable utilisation, obligation not to cause significant harm and principles of
consultation and notification could ensure prosperity for all riparian countries155 and
help to achieve MDGs and SD in Bangladesh as well as in the whole region.156
The management of water resources is a complicated process from multisectoral
points 157 of view. This involves not only the classical tools of water resource
management, especially scientific and technical, but also the specific legal, economic
and socio-historical tools. Among others, joint institutions, common monitoring
networks, information and data sharing and a common vision for SD of the entire
transboundary water resources can be listed. To conclude, both scientific and
political dimensions play specific roles in transboundary water resources
management, which requires innovative approaches especially in terms of regional
cooperation.158
Another constraint, which is a by-product of mindset, is more political in nature.
There appears to be a total failure on the part of the political leadership in each of the
riparian countries to mould public opinion in favour of developing a vision for
regional cooperation. Any national consensus on the benefit of regional cooperation
remains elusive and the issues remain contentious. The onus of removing this
constraints lies with the political leadership in each country. The success will depend
on an attitudinal shift in favour of regionalism on their own part and, then, on their
political acumen and capability to motivate others.159
This thesis suggests that in order to establish a successful and sustainable
management authority to control inland water pollution, the government of
Bangladesh could introduce a set of approaches. These approaches require a
154
I.e., Nepal, India, Bhutan, China and Bangladesh
155
Discussed in Chapter 5 III A.
156
Muhammad Mizanur Rahman, ‘Bangladesh – From a Country of Flood to a Country of Water
Scarcity-Sustainable Perspective for Solutions’ (Paper presented at Seminar on Environment and
Development, Hamburg, Germany, 9–10 December 2005) 12.
157
Such as scientific, legal, economic and social.
158
Ganoulis and Fried, above n 128, 23.
159
Ahmad et al, above n 37, 70.
262
paradigm shift at the policy level; some important mindset changes can play a vital
role in creating a new dimension using a combination of pollution control
instruments.160 However, in Bangladesh, problems of implementation arise not only
from the inconsistency of policies, incapable administration and the instable political
situation but are also affected by other social barriers.161 Hence, the application of
such approaches in order to solve inland water pollution problems effectively
through a combination of pollution control instruments necessitates the
implementation of a set of policy initiatives, as discussed above.
VI CONCLUDING REMARKS
The conventional view of pollution regulation generally focuses exclusively on
interactions between the government and the pollution emitters. However, in the
proposed approach, the responsibility to apply various pollution management
elements is shared among different stakeholders.162 Success in pollution control and
management largely depends on the right combination of economic and regulatory
mechanisms supported by adequate monitoring and an enhanced capacity of relevant
organisations.
163
An integrated approach combining national, regional and
international legal instruments could lead to innovative and cost-effective processes
to protect inland water pollution. 164 By introducing this integrated approach, the
intended pollution control system will not only be confined to monitoring at the
discharge points and enforcing rules and standards by the regulators, but also adopt
non-traditional measures such as community monitoring and participation. These
alternative measures will provide more flexibility, efficiency and cost-effectiveness
for inland water pollution control. However, some policy initiatives 165 need to be
undertaken by the government in order to apply the proposed integrated approach in
practice.
160
Rahman, above n 28, 145.
161
Discussed in Chapter 3 V.
162
Including regulators, community members and pollution emitters.
163
1992 Rio Declaration on Environment and Development, Agenda Item 21, above n 77, para 63.
164
Rahman, above n 28, 143.
165
These include bringing necessary changes in legislation; strengthening organisational capacity;
providing economic incentives for pollution emitters; involving local community to monitor the river
water quality; and incorporating disclosure of information.
263
Revisiting existing legal principles with a view to devise an efficient and costeffective means to tackle inland water pollution is reinforced from all quarters.
Community engagement in this aspect is denoted as one of the effective approaches
to deal with the inland water pollution issue. Promoting global cooperation along
with local and regional political consensus is also determined as a salient feature of
this discussion. However, the individual state has its sole and important role to play
in relation to protecting inland water from pollution. Main responsibilities include
but are not limited to legislating on water, regulating the use of inland water from
diverse resources, protecting inland water resources and promoting resource
conservation. Moreover, the state enters into agreements and treaties with riparian
countries over common transboundary water sources. Therefore, efforts must be
made by the government to harmonise formal law166 and customary law since they
often are in conflict in a developing country like Bangladesh due to their fragile
connectivity.167 This chapter urges the availability of a combination of measures for
controlling inland water pollution. The policy instruments are not mutually exclusive
categories, and thus a combination of two or more of these instruments is more
beneficial to a sustainable water pollution control strategy.
166
Formal law is perceived and practiced by the state and its institutions, but customary law is
initiated by civil society institutions.
167
Iyer, above n 115, 155.
264
CHAPTER 8: MAJOR FINDINGS AND CONCLUSION
I
INTRODUCTION
This concluding chapter draws together the main ideas and discussions of the earlier
chapters. The key outcomes of the research are summarised and integrated, and the
adequacy of the present regimes of water pollution laws and some recommendations
for improvement are elucidated. This thesis has sought to identify the scope,
problems and the challenges of implementing regimes relating to inland water
pollution in Bangladesh.
International law and policy particularly related to inland water have been promoted
through various global efforts like the Rio Declaration, the UNWC and the Berlin
Rules. International and national practices, legal, policy and institutional frameworks
have been developed to support water management, including transboundary water
resources in many countries. Many of these standards, guidelines and best practices
are non-binding principles (soft law) in international regimes. However, some have
been embedded in national legal and policy frameworks relating to inland water
management in Bangladesh. Guidelines and frameworks developed by international
communities such as the ILA and ILC and the goals determined by the different
INGOs and SD principles need to be taken in consideration when formulating legal
and policy frameworks for inland water management in Bangladesh. This thesis
argues for an integrated, cross-sectoral, legal and policy reform in Bangladesh to
reflect these internationally recognised practices.
Reform needs to be enabling as well as prescriptive in order to work as per the
desired objectives. In relation to control and management of inland water pollution,
policy consensuses are found in a variety of soft law instruments and in the strategies
and policies of specific institutions.1 One of the key documents in this context is the
Dublin Statement 1992.2 The international community has also taken in a number of
different policy initiatives related to water. One of the key instruments is MDGs,3
1
Particularly development banks like the WB and ADB.
2
Dublin Statement on Water and Sustainable Development, International Conference on Water and
the Environment, Dublin, 31 January 1992.
3
United Nations Millennium Declaration, A/Res/55/2; UNGAOR Committee A/55/L.2, 55th sess, 8th
plen mtg, Agenda Item 60(b); UN Doc A/RES/55/2 (8 September 2000) 5. Discussed in Chaper 5 III
F.
265
which have been reaffirmed in the plan of implementation of the WSSD.4 It proposes
a number of actions focusing on prevention of water pollution and adopting some
measures to promote sustainable water use and to address water scarcity. 5 The plan
also recognises the need for concerted action of all countries to prioritise water in
national strategies.6 It also highlights the links between agriculture and water, and
calls for the introduction of policies and legislations for agricultural enterprises and
farmers to monitor and manage water use and quality.7
It has been identified in this research that Bangladesh is highly enriched and
naturally blessed with inland water resources. However, the country suffers, together
with point and non-point sources of pollution, problems in both dry and wet seasons
(see Chapter 2). Moreover, legal and conceptual issues, including the acceptable
threshold limit and the role of sovereignty to protect inland water pollution are still
undecided (see Chapter 3). The management principles of water have indicated that
there are measures already in place to combat the inland water pollution problem all
over the world. This thesis demonstrates that the country acknowledges and
incorporates international principles in formulating national water resources
management policies and laws and introducing IWRM and AWM planning in the
management of inland water resources (see Chapter 4). However, in the absence of a
legally binding internationally accredited regulatory framework of regional or
universal application, riparian states are not using the common resources in a
sustainable manner.
This thesis discusses the development of CIL, international legal instruments 8 of
regional and universal application, IGO and INGO declarations (see Chapter 5).
Further, from the management perspective, an effective system of pollution control
cannot be established unless the efforts are cooperatively put in practice.9 In addition,
4
United Nations, Report of the World Summit on Sustainable Development, UN Doc A/CONF.199/20
(2002) 6. Discussed in Chaper 5 III G.
5
Ibid para 24.
6
Ibid para 6.
7
Ibid para 38(i-j).
8
Conventions, treaties and agreements.
9
Md Ashiqur Rahman, Towards an Integrated Pollution Management Approach for the Buriganga
River in Bangladesh (The University of Sydney, Ph.D thesis, 2011) 144.
266
an assortment of responsibilities with the overlapping of organisational boundaries
and the absence of any incentive-based mechanism for the stakeholders render the
present system ineffective.
This thesis analyses the existing legal regimes, examines bilateral water-sharing
agreements, evolving national laws and policies relating to water with a view to
pinpointing some legal reform that can help the country to protect itself from inland
water pollution (see Chapter 6). This research suggests an effective improvement or
alternative to the present system and has sought to determine and propose measures
that could be incorporated within the existing system by the relevant stakeholders
(see Chapter 7). Further, the proposed integrated approach recommends formulating
a standard procedure and guideline for protecting inland water from pollution by
establishing a management authority (see Chapter 8). In addition, necessary training
programmes should be directed by experts to enhance capacity building of the
community. Giving the community a responsible role in monitoring and recording
failures and improvements could provide the necessary focus of attention and
impetus required to resolve the inland water pollution problem of the country.
In the context of a developing country like Bangladesh, there are limitations in the
availability of consistent long-term data on river flow, water quality parameters,
pollution load as well as lack of cooperation from pollution mitigation organisations
and transparency of information on policy documents. Moreover, physical resources
such as time, budget and circumstantial limitations is always an issue. This research
only considers the changes in the quality of water that can be directly attributed to
human conduct and does not include natural contamination of water for this study’s
purpose. The thesis acknowledges that the debate and study of inland water pollution
is still at a very early stage in Bangladesh, especially from a legal and institutional
viewpoint.
Some recommendations have been proved in practice elsewhere in the world and
should be adopted in Bangladesh. Some theoretical suggestions may be difficult and
challenging as practical strategies and actions. The proposed approaches and
strategies will need to be tested and improved with the emerging information,
knowledge and experiences. Further, the emerging principles of water-sharing,
evolving technologies to improve the water quality and policy instruments of
267
protecting inland water pollution also entail a constant review and modification of
the recommendations to better reflect and reveal the changing circumstances.
Inherent political, institutional and economic constraints make it difficult to reform
the public sector water institutions in Bangladesh. The working culture of a nation
always affects the performance of its public sector institutions. To a very significant
extent, national culture 10 determines the performance and efficiencies of public
sector institutions, which are run by the people rather than the prevailing laws and
regulations. Further, when all other government institutions are not working properly,
it is almost impossible to conceive that only the water institutions could be
significantly more efficient.11 While the institutional environment is influenced by
the overall cultural, socioeconomic and political situation of a country or region, the
institutional structure is defined by the interactive effects of legal, policy and
administrative
components
and
their
constituent
aspects.
12
The
present
interdisciplinary study was conducted keeping all these factors in perspective.
II MAJOR FINDINGS AND CONCLUSION
Overall, Bangladesh’s inland water quality is not acceptable according to DoE
standards for the parameters13 during both dry and wet seasons. However, the data
confirmed that some of the parameters are still within acceptable limits throughout
the year. It can be concluded from the observed data, particularly from the
perspective of Dissolved Oxygen (DO) concentration, that quality is alarmingly
lower than acceptable limit. The reason behind that is most likely due to the emission
of biodegradable 14 organic matter from industrial liquid effluent and untreated
municipal waste water. Therefore, a sustainable management system is required in
order to control the discharge of pollutants into the water resources. Otherwise, the
10
Lack of environmental awareness, endemic poverty,
11
Asit K Biswas, ‘Institutions for Resources Management: A Case Study from Sri Lanka’ in Chennat
Gopalkrishnan, Cecilia Tortajada, Asit K Biswas (eds), Water Institutions: Policies, Performance and
Prospects (Springer, 2005) 24, 27.
12
R Maria Saleth, ‘Water Institutions in India: Structure, Performance, and Change’ in Chennat
Gopalkrishnan, Cecilia Tortajada, Asit K Biswas (eds), Water Institutions: Policies, Performance and
Prospects (Springer, 2005) 47, 49.
13
Discussed in Chapter 3 IV A.
14
Substance that is capable to being decomposed by bacteria or other living organisms.
268
healthy existence of the water resources would be strongly compromised in both dry
and wet seasons.
The research also assessed that the quality of the river water (in terms of oxygen
variables) is very poor and some of the rivers in the NC region are excessively
polluted through municipal and industrial wastewater sources discharged directly
into the river with either partial or no treatment. These observations further indicate
the need of pollution reduction from the discharge point. There are already
regulations in place to protect this, but due to corruption, it is continuing.
The main reasons for the inland water pollution can be summarised as the inland
water sources being heavily exploited to meet the ever-increasing demand of the
growing population. This rapid urbanisation reduces the open surface areas for water
absorption, thereby limiting the natural recharge of groundwater. Also, extensive
abstraction of groundwater results in depletion in the groundwater table. This can be
seen everywhere in the country where the levels in wells have dropped significantly
and rivers are unseasonably dry. Moreover, there is severe contamination of most
surfacewater sources due to extensive industrial and fertiliser-pesticide based
agricultural activities.15 Though agriculture is the major consumer of inland water,
the importance of requirements of water for domestic and industrial uses can hardly
be over emphasised. The problems of water supply for domestic and industrial use in
different hydrological regions are not similar, so the provisions of their solutions are
also different.16
The research has identified that a number of policies and regulations with a fairly
comprehensive set of legislations are in place for pollution management in
Bangladesh, 17 and are also applicable to inland water sources. The existing
management system focuses on direct regulatory measures and emphasises
expensive technological solutions for the surfacewater quality problem. However,
the states of compliance and enforcement of the regulatory measures are not
satisfactory, leading to persistent pollution. There are weaknesses within the
15
Sanjib Das et al, ‘Determination of Urbanization Impact on Rain water Quality with the Help of
Water Quality Index and Urban Index’ in Bipal K Jana and Mrinmoy Majumder (eds), Impact of
Climate Change on Natural Resource Management (Springer, 2010) 131, 133.
16
Discussed in Chapter 2 III.
17
Discussed in Chapter 6 II.
269
organisational capacity for successful implementation of pollution control
regulations and programmes. In addition, lack of information disclosure raises
questions as to the transparency and the accountability of the present system and
limits participation of interested stakeholders in pollution control. Moreover, there is
no provision within the present system to provide any economic incentive to the
pollution emitters for pollution mitigation and adoption of new technologies. Despite
the provisions made within the national policies, no action programme has been
developed to ensure the effective contribution of NGOs for pollution control,
although evidence shows that the local community is willing and has the potential to
directly participate in the process.
This research established that there are too many institutional players in the current
system to control inland water pollution in Bangladesh. 18 A major limitation was
identified as the absence of a single authority with sole responsibility to coordinate
the efforts of different organisations and programmes towards controlling the
pollution problem. 19 This has led to a blame culture giving rise to organisational
inefficiency. The research established that a shift to a new paradigm is necessary by
involving relevant stakeholders and incorporating alternative pollution control
measures to improve the inland water situation of the country. This research also
indicated that there are no incentives for environmental compliance in the present
mechanism in Bangladesh. The government has to find some incentive-based
mechanisms for solving inland water pollution problems. Financial capacity of the
government may be considered a barrier but should not be an excuse for noncompliance with global standards. Understanding the dire urgency of the issue at the
governmental level is the first step in building proactivity and efficiency for policing
the implementation of at least some of the management standards.
Integrated institutional management is very important for domestic and
transboundary water resources management. It works as a central organ to liaise with
other related agencies for SD and management. Integrated water management is not
only important as a means of integrating different water-related issues, but also
critical in managing the relationships between quantity and quality and between
18
Discussed in Chapter 6 III.
19
Discussed in Chapter 8 II.
270
upstream and downstream water interests. 20 The individual and joint institutional
capacities of water resources management in Bangladesh are administratively weak,
financially and technologically disadvantaged or geo-politically motivated. These
institutions are not well designed to fit IWRM planning practices. Moreover, they are
not interlinked or integrated with national water- and land-related agencies or
connected with similar institutions of other stakeholder states to manage and share
transboundary water resources.21 The water resources sector of Bangladesh requires
the satisfaction of multi-sector water needs with limited resources and should
promote efficient and socially responsible water use, uphold stakeholders’
responsibilities, decentralise state activities and work towards suitable water quality
management and ecosystem maintenance.22
An integrated approach to water resource management can recognise the
interlinkages between water sector problems and can fully exploit both the
interlinkages and synergies among institutional aspects. Consequently, an integrated
approach can begin by taking into account all water-related problems within a given
area and can then get the key institutions to work together to find solutions. An
integrated plan has a role both at the policy level and planning level. Agreement
between stakeholders on a broad strategy serves to coordinate and harmonise
interests and seeks to minimise the prospect of conflict when policy moves to plan
and finally actions.23
The aim of this thesis has been to contribute to the resolution of problematic inland
water pollution in Bangladesh in ways that are consistent with international
management principles and concepts that uphold the ideas of sustainability. The first
step on this journey was to discover what the current situation of the inland water
20
Kent W Thornton et al, ‘Moving Toward Sustainable Water Resources Management: A Framework
and Guidelines for Implementation’ (Synthesis Report, No 00-OSM 6A, Water Environment Research
Foundation, 2006) 5.
21
Md Jakerul Abedin, The Ganga-Brahmaputra-Meghna (GBM) Watershed Governance: Potential
for a Multilateral Regulatory and Integrated Management under International Law (PhD Thesis,
Macquarie University 2012), 98.
22
Ibid 246.
23
Gareth J Lloyd, Patrick McCarron and Lucía Stacy, Integrated Water Resources Management: How
has IWRM Helped Exert Sustainable Water Resource Management in the Rufiji River Basin in
Tanzania? 49 (22 April 2013) <http://rudar.ruc.dk/bitstream/1800/1259/1/IWRM%20TANZAN.pdf
>.
271
pollution in Bangladesh through sources and effects. On the one hand, the country is
well resourced in relation to inland water, on the other hand, resources have been
polluted and quality is deteriorating day by day. Both point and non-point sources of
inland water pollution exist in the country with undecided threshold limits of
contamination and pollution. The situation has been worsened by other social,
economic and political constraints.
This thesis suggests that international management principles such as IWRM, AWM,
polluter-pays and the precautionary principles should be used as a benchmark to
improve the situation. In this context, different theories and doctrines that use
transboundary water resources are more likely to prioritise to get overall benefit for
the country, which is geographically lower-riparian of mighty rivers. Arrangements
for inland water pollution should emphasise cooperation between stakeholders
locally, nationally and internationally, as the decisions about inland water pollution
planning would incorporate cooperation and processes that bring the diverse
knowledge and interests of policy makers, professional experts and stakeholders
together.
This thesis also conducted a review of literature to discover the role of the CIL in
protecting inland water pollution. Non-legally binding instruments, often referred to
as ‘soft law’ such as declarations, resolutions and recommendations adopted by the
UNGA and different international organisations and conferences, have also
indirectly contributed to the formation of international law.
24
In line with
international development the regulatory framework in Bangladesh faces some
challenges. Institutional, policy and legislative reforms are necessary for the success
of control of inland water pollution.
It was found that effective participation from the community in terms of water
quality monitoring and application and endorsing international water resources
management policies would ensure the healthy existence of inland water sources.
However, it is important to note that the suggested paradigm shift of the pollution
control system with the new strategies (benchmark principles and singular
comprehensive authority) is intended to replace the present regulatory measures
24
Sergei Vinogradov, Patricia Wouters and Patricia Jones, ‘Transforming Potential Conflict into
Cooperation Potential: The Role of International Water Law’ (Report No 2, UNESCO, 2003) 10.
272
(particularly the ambivalent WQS). The new approach will create the opportunity to
provide economic incentives to the pollution emitters who can take appropriate
measures to mitigate their pollution. It is evident that this reform necessitates
legislative changes, strong organisational capacity, disclosure of information and
public participation. The effective implementation of any one of these reforms
depends largely on the improvement or operation of other reforms. For example, the
application of polluter-pays or precautionary principles requires effective public
participation. In turn, public participation could be enhanced through institutional
reform where the role of local governments is recognised and communities are
represented in different organisations. A particular legal reform will not be effective
unless it is supported by various states and non-state actors relating to inland water
resource management.
In order to manage water resources in a systematic manner, the Indian Parliament
adopted the Water (Prevention and Control of Pollution) Act in 1974. 25 The Act
includes various provisions for the prevention and control of water pollution and the
maintaining or restoring of the wholesomeness of water in India. For example, the
Act provides for the composition of a central board, individual state boards and joint
boards in order to manage and protect inland water resources. 26 In addition to the
above Act, the Indian government adopted a National Water Policy in 1987,27 with a
view to addressing water pollution issues in a comprehensive manner. The policy
provides guidelines to address the current scenario regarding water resources and
their management in India. This national policy emphasises community participation
and Integrated Water Resources Management (IWRM) in order to improve the
inland water situation,
28
consistent with broader environmental management
approaches. The policy recommends having a single forum 29 at the national level to
address issues relating to inland water. This national forum would be responsible for
cooperation, coordination and reconciliation between various actors and users of
water resources. The policy also recommends that a national framework law be
25
Act no. 6, 1974.
26
Sections 3, 4 and 13 of the Water (Prevention and Control of Pollution) Act 1974.
27
The policy was reviewed and updated in 2002 and later in 2012.
28
Ibid 12.5.
29
Ibid 12.1.
273
adopted as an umbrella statement of general principles governing the exercise of
legislative and executive powers by the various governing bodies.30
Along with some other states of India, West Bengal31 adopted the State Water Policy
in 2012 in order to combat the environmental situation. The State Water Policy
(hereinafter WB Policy) is framed in line with the National Water Policy 2012 to
ensure equitable, economical and optimal use of inland water resources. The WB
Policy takes a multi-sectoral, multi-disciplinary and participatory approach in
relation to the planning, development and management of inland water resources,
including water pollution control.32 The WB Policy suggests rearranging the existing
local bodies and institutions within the water resources sector, so that suitable
measures can be undertaken to prevent and reduce inland water pollution in West
Bengal. In this context, the WB Policy suggests a participatory approach to water
resources management. 33 In addition, private sector participation is encouraged in
order to promote innovative ideas and generate financial resources.34 The WB Policy
makes provisions to monitor and maintain water quality, as laid down by the State
Pollution Control Board. 35 Conjunctive use of ground and surface water in a
scientific manner is promoted, 36 and the policy also argues for proper statutory
provision of punishment for polluting water resources and causing the deterioration
of water quality.37
From an operational perspective, an action plan has been included in the WB Policy
to achieve the desired goals relating to inland water pollution control. These include:
re-assessment of both ground and surface water potentiality, preparation of plans for
integrated development and management of water resources, and encouragement of
30
Government of India, ‘National Water Policy’ (Ministry of Water Resources, 2012) 2.1.
31
West Bengal is noted here because a number of rivers in the Ganga Brahmaputra Basin are shared
by both Bangladesh and West Bengal. Bangladesh and West Bengal are both confronting similar
obstacles and challenges in managing their inland water pollution resources in a sustainable
manner.
32
State Government of West Bengal, ‘State Water Policy’ (State Government of West Bengal, 2012)
6.1.
33
Ibid 14.
34
Ibid 15.
35
Ibid 16.1.
36
Ibid 18.2.
37
Ibid 16.4.
274
private sector participation in planning, development and management of water
resources. The plan also focuses on improving ecology by sustaining a minimum
water flow in rivers and providing a management information system 38 for effective
implementation of the policy.
In South Asia, Nepal adopted the Water Resource Act (WRA) 1992 in order to
manage water resources of the country. The WRA 1992 is intended to establish legal
arrangements for determining beneficial uses of water resources, preventing
environmental damage and keeping water resources free from pollution.39 Although
not specifically mentioned in the WRA 1992, the government has vested the
responsibilities over the use and the prevention of pollution of water resources and
other matters relating to the development and utilisation of water resources 40 into the
MoWR exclusively. In this context, Brazil also has one central agency to manage
nationwide water resources. The country has a number of articles
41
in the
Constitution on the establishment of a national system for the management of water
resources and has also adopted the National Water Resources Policy (NWRP) in
1997. The country established the National Water Agency (Agencia Nacional De
Aguas, ANA) as a national institution for implementing NWRP and coordinating the
national water management system. This institution coordinates IWRM and has
authority to arbitrate any conflicts related to inland water resources. It is also
responsible for planning, regulating and supervising the use, conservation and
recovery of water resources and is liable for encouraging the charging of fees for
water usage.42
Based on the benchmark management principles, 43 this research recommends the
formation of a separate entity proposed to be called the IWMA, which will be
assigned with the sole responsibility to control inland water pollution in Bangladesh.
38
Ibid 29.
39
Preamble of WRA.
40
Shantam S Khadka, ‘Water Use and Water Rights in Nepal: Legal Perspective’ in Rajendra Pradhan
et al (eds), Water Rights, Conflict and Policy (International Irrigation Management Institute, 1997) 13,
18.
41
Articles 20 (III), 21 (XIX), 26 of the Constitution of Brazil.
42
Article 32 of NWRP of Brazil.
43
Discussed in Chapter 4.
275
The IWMA can deal exclusively with the inland water pollution problem of the
country under the MoWR. The major tasks of this authority would be to set WQS
and conduct monitoring at effluent discharge points. It would also formulate policies
for water conservation, enforce regulations and develop protocol for inland water
quality monitoring. In addition, this authority would be responsible for sharing water
quality and pollution-related information with the stakeholders and the riparian states.
This proposed authority would act as an apex body to coordinate the activities of
various stakeholders and facilitate the implementation of alternative pollution control
measures for the inland water resources nationally and internationally. The
establishment of IWMA will have significant impacts in the water sector and should
be given the following powers to exercise:44

The first broad prerogative of IWMA is to establish a regulatory system for
the water resources of the country to regulate their use and apportion
entitlements to use water between different recognised categories of use.

The IWMA must promote the efficient use of water, minimise wastage and
fix reasonable use criteria. Allocating specific amounts to specific users or
groups of users according to the availability of water could be another task.

The authority has to work on the water quality issue on the basis of some
guiding principles and criteria set out by international organisations, and the
extensive powers of the authority need to be exercised within the framework
of the NWPo.
One of the key research contributions of this thesis has been the novelty of
suggesting an exclusive managing authority to protect inland water pollution.
Considering inland water situation in the country, the following recommendations
for consideration and implementation are made:
1. Drinking water quality is evaluated on the basis of the physical, chemical and
biological parameters. However, international guidelines as formulated by the
WHO may be followed in order to maintain a standard throughout the country. If
there is an area where diffuse pollution is occurring and experiencing
groundwater pollution, the government may take the authority to declare that
44
Philippe Cullet, Water Law, Poverty and Development Water Sector Reforms in India (Oxford
University Press, 2009) 120–121.
276
area as a ‘protected aquifer area’ zone. In such areas, groundwater withdrawal
may be limited or frozen for a period to allow recovery of the aquifer.45
2. IWRM and AWM may be implemented all over the country without
compromising the sustainability of the ecosystem to promote coordinated
development and management of inland water. A holistic approach to water
management may be evolved by integrating surface and groundwater
management, upstream and downstream interests and quantity and quality of
inland water. Many countries are implementing IWRM planning for the SD,
management and utilisation of water resources within their sovereign territory.
International and regional organisations working on water resources management
are always urging co-basin states to do this. However, the success of IWRM is
relatively low, with many states under water stress.46
3. The present mindset of the major stakeholders needs to be changed so that all of
the relevant participants can undertake their responsibility instead of thinking
that water is government business. There needs to be a transformation in the way
people think about water. Good governance is an important prerequisite to
solving inland water pollution problems. Governance includes policy, legal
frameworks, management approaches, institutional structures and decision
making processes. Another essential requirement is political will to address the
problems, including corruption and inefficiency.
47
In addition, rainwater
harvesting can be a good option for the country. The government can promote
rainwater harvesting and introduce micro-watershed development throughout the
country to the maximum extent technically feasible without adverse effects.48
4. A synergy needs to be established between the government and the NGOs to
ensure adequate availability of quality water and its conservation. It is important
45
Stefano Burchi, ‘Water Laws for Water Security in the Twenty-First Century’ in Julie Trottier and
Paul Slack (eds), Managing Water Resources Past and Present (Oxford University Press, 2004) 117,
121.
46
Shilp Verma, IWRM Challenges in Developing Countries: Lessons from India and Elsewhere
(International Water Management Institute, 2007) 2.
47
D H Smith, ‘Environmentally Sustainable Water Use for Sustainable Development and Enhancing
Security in Central Asia’ in Hartmut Vogtmann and Nikolai Dobretsov (eds), Transboundary Water
Resources: Strategies for Regional Security and Ecological Stability (Springer, 2005) 1, 5.
48
Ramaswamy R Iyer, Towards Water Wisdom Limits, Justice, Harmony (Sage Publications, 2007)
228.
277
to establish a constructive working relationship between civil society institutions
and relevant government ministries and organisations. A voice for women in
water management and a proper place for them in water governance institutions
need to be ensured. Moreover, a community-government partnership approach is
suggested. Power can be delegated to the community to manage and distribute
water from the public supply, and charges can be collected by the community
according to usage and returned to the government on behalf of a group or area.
Nationally, irrespective of social status and political affiliation of the encroachers
and polluters, the country needs to uphold the rule of law and ensure constant
vigilance and monitoring.
5. At the regional level, the riparian countries should coordinate their actions to
manage intra-country flow of polluted water and thus develop a cognitive
method to monitor water quality and consequently share gathered information
and knowledge.49 Riparian countries need to overcome the existing mindset in
their region. This mindset is characterised by an endemic absence of goodwill,
lack of mutual confidence, mistrust, suspicion of motives and differences in
perception. These are inherited from past experiences, which were often bound
up with confidence-eroding steps and failure to transcend narrow and short-term
perspectives.50
6. The utilisation of transboundary water resources encompass fundamental
principles of international watercourses law, which later become CIL. 51 This
process is accelerating throughout the world, with many riparian states having
developed normative multilateral and regulatory frameworks to manage shared
water resources.52 For example, in Asia, the co-riparian states have entered into
an agreement and established an integrated management institution to manage
49
Q K Ahmad et al, ‘A Framework for Sustainable Development of the GBM Region’ in Q K Ahmad
et al (eds), Ganges-Brahmaputra-Meghna Region A Framework for Sustainable Development (The
University Press Limited, 2001) 1, 23.
50
Q K Ahmad et al, ‘GBM Regional Water Vision: Bangladesh Perspectives’ in Q K Ahmad et al
(eds), Ganges-Brahmaputra-Meghna Region: A Framework for Sustainable Development (The
University Press Limited, 2001) 31, 69.
51
Discussed in Chapter 5 II A.
52
Eyal Benvenisti, ‘Collective Action in the Utilization of Shared Freshwater: Challenges of
International Water Resources Law’ (1996) 90(3) American Society of International Law 384, 394.
278
the Mekong River together. 53 The multilateral Mekong Agreement (1995) 54
incorporates internationally accepted fundamental principles55 of transboundary
water resources. Moreover, the agreement creates scope for further cooperation
with stakeholder states, increases the potential benefits and establishes the
integrated institutional structure incorporating the basic concept of IWRM
planning for the SD, conservation, protection, management and optimal
utilisation of shared water.
The magnitude and complexities of water planning and management practices have
changed radically in the last two decades. The approaches, techniques and solutions
that were used extensively earlier may not be acceptable anymore in social, political
and institutional terms. Issues like decentralisation, public participation, transparent
governance, globalisation and increasing emphasis on poverty alleviation were not
explicitly considered earlier. 56 Water is primarily a life supporting substance and
only secondarily anything else. Reasonable access57 to water is a basic need and right
and cannot be denied to anyone. The scarcity of available water, the existing
management and sharing arrangement of transboundary water resources, inadequate
policy and legislations, increasing climate change threats to water and violation of
CILs relating to riparian rights create huge socioeconomic and environmental
problems in Bangladesh. This thesis argues that these issues can be solved by
introducing an integrated institutional management authority that allows the
stakeholders to act together.
53
Patricia Wouters and Dinara Ziganshina, ‘Tackling the Global Water Crisis’ in R Quentin Grafton
and Karen Hussy (eds), Water Resources Planning and Management (Cambridge University Press,
2011) 175, 183.
54
Cambodia, Laos, Thailand and Vietnam signed the agreement on 5 April 1995.
55
Equitable and reasonable utilisation, not to cause significant harm to others, cooperation and joint
management and exchange of data and information.
56
Asit K Biswas, ‘Institutions for Resources Management: A Case Study from Sri Lanka’ in Chennat
Gopalkrishnan, Cecilia Tortajada, Asit K Biswas (eds), Water Institutions: Policies, Performance and
Prospects (Springer, 2005) 24, 44–45.
57
The WHO and United Nations Children’s Fund, Global Water Supply and Sanitation Assessment
Report (2000) defined reasonable access as each person having access to water at least 20 litres per
day at a distance of not more than 1 kilometre from their dwelling.
279
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III JOURNAL ARTICLES
Ahmad, Q K, ‘Towards Poverty Alleviation: The Water Sector Perspective’ (2003)
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IV CONFERENCE PAPERS, WORKING PAPERS AND REPORTS
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VII OTHERS
Abedin, Md Jakerul, The Ganga-Brahmaputra-Meghna (GBM) Watershed
Governance: Potential for a Multilateral Regulatory and Integrated Management
Under International Law (PhD Thesis, Macquarie University, 2013)
Alam, Md Khorshed, Cleanup of the Buriganga River Integrating the Environment
into Decision Making (PhD Thesis, Murdoch University, 2003)
Bangladesh Bureau of Statistics, Yearbook of Agricultural Statistics of Bangladesh
(Bangladesh Government Press, 2006)
Huston, Samuel P, Management of Water Scarcity and the Application of Conflict
Resolution: Cases of India and China (Masters Thesis, University of Bradford, 2006)
Kranzlin, Irene, Pond Management in Rural Bangladesh: System Changes, Problems
and Prospects and Implications for Sustainable Development (PhD Thesis, Basel
University, 2000)
Matsumoto, Kyoko, ‘Transboundary Groundwater and International Law: Past
Practices and Current Implications’ (MSC Research Paper, Oregon State University,
2002)
Rahman, Md Ashiqur, Towards an Integrated Pollution Management Approach for
the Buriganga River in Bangladesh (Phd Thesis, The University of Sydney, 2011)
Shahjahan, Mosharefa, Integrated River Basin Management for the Ganges: Lessons
from the Murray Darling and Mekong River Basins (A Bangladesh Perspective) (Phd
Thesis, University of Adelaide, 2008)
317