India as a sovereign state is entitled to freedom from harm by China’s diversion of the shared river water

The draft outline of the fourteenth five-year plan in China (2021-25) which is slated for approval by the National People’s Congress (NPC) specifically mentions the building of hydropower dams on the lower reaches of Brahmaputra in the next five years. China as a sovereign state is entitled to go ahead with its developmental projects to meet the necessities of its people. But the use and diversion of shared natural resources is allowed in the international legal system with a certain caveat. The doctrine of permanent sovereignty over natural resources cannot be invoked to justify building of hydro-electric power projects on a shared natural resource- Brahmaputra river which originates from Tibet on its way to Bhutan, India and Bangladesh. The rule is quite clear and it is a hard law that no state has to use its territory in such a manner to cause adverse effects on another state’s territory.

India’s Concerns In Brahmaputra

India as a sovereign state is entitled to freedom from harm by China’s diversion of the shared river water. India must be interested in having advance knowledge of the proposed building of dams on the lower reaches of Brahmaputra River as the river is equally important from India’s viewpoint of water-energy-food nexus. Moreover, the river in South Asia is home for 130 million people. Development of new hydropower projects, upstream water diversions and possible climate changes introduce concerns amongst lower riparian countries-India and Bangladesh-about future water supply for energy and food production in the basin. India’s concerns and interests in the lower reaches of Brahmaputra merit attention as communities in the floodplains of the lower Brahmaputra basin continue to face extensive flooding due to increased river flows and extended droughts as a result of changes in monsoon rainfall. Climate change is having an adverse effect on the community livelihoods and the natural ecology of the Brahmaputra. Likewise China, India is also facing socio-economic pressures on the river due to increasing population and energy demand.

China’s Obligation To Conduct TEIA

No harm rule is a due diligence obligation of making the best efforts on the part of the project proponent party of harm prevention. China is obligated to demonstrate that it is prepared legally, administratively and scientifically that its building of a dam on the lower reaches of Brahmaputra will not cause trans-boundary damage on the Indian side. For this, China is required to conduct transboundary environmental impact assessment (TEIA). Conducting of TEIA is part of customary international law obligation, which means China cannot take this plea that in the absence of bilateral agreement with India it is not required to do so. TEIA is a procedure to evaluate how a proposed activity will impact the environment beyond the borders of the state conducting TEIA. It helps in environmental harm prevention and promotes cooperation among states, and consequently help avoid conflicts.

Chinese Approach To Deal With Shared River Water

Since the proposed hydroelectric power project on the Brahmaputra River is a planned project activity on the Brahmaputra River, China is obligated to conduct TEIA before going ahead with the construction work. International jurisprudence recognizes the obligation to conduct TEIA in the Pulp Mills case 2010, the Advisory Opinion on the Responsibilities and Obligations in the Area and the Indus Water Kishenganga Arbitration. This is really worrisome that the Chinese national law does not require assessing transboundary environmental impacts even though Chinese development works threaten the natural environment of international river basins. Although the Chinese Environmental Impact Assessment law requires the government to assess the environmental impacts of projects built within Chinese territory, the EIA law makes no reference to environmental impacts outside Chinese territory even where planned measures could have environmental effects in one of China’s neighbouring states. China claims that it adheres to the tenets of TEIA in shared natural resources. For instance, China entered into Memorandum of Understanding with India on provision of hydrological information of the Brahmaputra River in flood season to address similar concerns in India regarding China’s utilization of the Yarlung Tsangpo River (known downstream as the Brahmaputra).

In order to ensure peace and stability in the region, China needs to be part of the multilateral legal framework governing international water courses. China has yet to sign the 1997 UN Watercourses Convention and it is important to note that it is one of the three states that voted against this global instrument at the UN General Assembly. The Convention encourages the signatories’ states to the Convention to enter into bilateral agreement with states having shared water courses with a view to attaining optimum utilization thereof and benefits therefrom consistent with adequate protection of the watercourses. The bilateral agreements provide for the establishment of joint bodies to fulfil their obligations in the Convention. China’s approach is to somehow assuage the concerns of their neighbours while aggressively pursuing its national interests. The example from the Mekong River represents China’s perspective on shared waters. China shares a long water course with its neighbours – Vietnam, Laos, Cambodia, Thailand- in the Mekong River. Since it is upper riparian in the Mekong river, it has merely signed an agreement with its lower riparian neighbours to reduce their concerns relating to utilization of the Mekong river water as upper riparian by it.

What China Ought To Do?

China needs to adhere to international water law, which makes it quite clear the meaning of watershed referring to the whole geographical area covered by the water flowing into an international river. China must abide by the principle of equitable utilization which has evolved from early inter-state practice determining the legitimacy of a use by balancing all factors relevant to a particular use. It has to be determined from that whether the use is an equitable and reasonable one or not. Along with equitable utilization, no harm rule constitutes the fundamental norm of international water courses. China has not so far shown any seriousness to the basin wide development of the rivers which would only result in optimum and equitable utilization of shared waters in a spirit of cooperation with its lower riparian neighbours.