When Chinese Premier Wen Jiabao visited India in mid-December last year, one of the issues on which his stand was keenly anticipated was that of the hydropower and dam construction on the Brahmaputra in Tibet/China. It has been long speculated that the Chinese are planning a large number of dams on the Yarlung Tsangpo (as the Brahmaputra is known in Tibet). Among the many dams and diversions that China is supposed to have planned on the river, one gigantic project stands out. This is the 40,000 MW hydropower and diversion project at the Great Bend on the river just before it enters India.

The Tsangpo flows through 1625 kilometres in Tibet, and then enters India in Arunachal Pradesh, where it is known as the Siang. Further down, the Siang after its confluence with the Dibang and Lohit - is known as the Brahmaputra. India is thus on the downstream side of all the developments being planned in China on the river.

These projects have been agitating the Indian establishment for quite some time. On one hand, there is some concern about possible risks - for example, in case of dam failure due to an earthquake - which these projects may pose to the Indian areas downstream.

However, the main concern of the establishment is along the more familiar lines of the right to the waters of the river. The question of how to share waters of transboundary rivers has been responsible for some of the most bitter disputes - both, across international boundaries and between national divisions. In this case too, the issue that seems foremost in the concerns of the Indian government is whether the Chinese activities will jeopardise India's own program of building dams on the Siang river.

A large number of dams and hydropower projects are being planned in the state of Arunachal Pradesh (at the last count 132 projects totalling to 40,145 MW had been allotted to various developers), and the Siang basin itself is stated to have a potential of about 20,000 MW. It should be noted that such "potential" involves building cascades of large dams and diversions at multiple locations in the river, leading to massive social and environmental impacts. There is apprehension in the Indian water and power ministries that China's dam construction program on the Tsangpo could adversely affect this potential.

To address this, it is argued that India should quickly build its dams on the Siang, thus establishing its "first user right" and creating a strong bargaining position to detract China from building projects that can adversely affect India.

As a result, both the State and Centre have been advocating pushing the projects with overriding priority - the unsaid, in fact, sometimes said implication being the short-circuiting of "undue" delays on the environmental front. Thus, on 2 April 2010, Jairam Ramesh, Minister of State for Environment and Forests, approved the Terms of Reference for the 2700 MW Lower Siang hydropower project "overriding a number of objections", as he himself states in a letter he wrote to the Prime Minister on 14 October 2010.

The Tsangpo flows through 1625 kilometres in Tibet, and then enters India in Arunachal Pradesh, where it is known as the Siang. Further down, the Siang - after its confluence with the Dibang and Lohit - is known as the Brahmaputra. India is thus on the downstream side of all the developments being planned in China on the river.

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This has raised serious apprehensions that the harmful impacts on the ecology and communities of the area will be brushed aside at the altar of "strategic goals." While local communities and the environment are often sacrificed in projects of "national interest", it is feared in this case "strategic interest" will be used to ride rough-shod on these concerns.

On 12 August 2010, the Arunachal Citizens Rights, a prominent civil society organisation also active on the issues of dams and hydropower in the state issued a press release, expressing "grave concern at the unilateral decision of the Government of India to impose large storage dam projects on Subansiri, Siang and Lohit river basins, the tributaries of Brahmaputra, as a strategy to counter China's proposed dam building on Tsangpo." They also called on the Government that "rather than making us, the people of Arunachal, the sacrificial lambs and guineapigs out of the India-China geopolitical strategy and negotiations, India should immediately explore the possibility of a joint discussion with China on the issue of riparian rights and water sharing of rivers which flow through both the countries."

The irony is that this attempt at creating "first user right" is unlikely to serve the purpose it is intended. It is true that when water allocations of shared rivers are negotiated, existing uses do carry some weight. However, it should be noted that this is only one of the many factors that matter. Since India and China do not have any treaty or agreement on sharing of transboundary rivers, one has to look at international norms. The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, was adopted by the General Assembly in May 1997, but it is still not in force as sufficient number of countries have not ratified it. In any case, China had voted against it and India had abstained.

The 1966 Helsinki Rules on the Use of Waters of International Rivers provide what many experts contend are long accepted principles, though it should be borne in mind that they are not legally binding. These rules say that "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." Thus, the overarching principle is that of a reasonable and equitable share, not whatever was the existing use.

The Helsinki Rules further provide a list of 11 factors that they deem are "relevant" to determine what is equitable and reasonable, with a proviso that the relevant factors are not limited to these but could include others. Only one of these factors is the "past or existing utilisation". Other factors include extent of drainage basin in each state, economic and social needs of each State, population dependent on the waters in each state etc.

The World Commission on Dams calls for "agreements ... based on principles of equitable and reasonable utilisation, no significant harm, prior information and the Commission's strategic priorities" and also notes that the meaning of these terms is still evolving.

All these clearly show the extremely limited validity of any argument based on "existing uses." Thus, the argument of creating "first user rights" for gaining negotiating strength is a specious argument, and that in practise, it would be of doubtful utility. Given that this would come at the heavy cost of pushing projects over the heads of strong local protests, projects that will severely impact communities and the ecology, this strategy is doubly flawed.

The real first uses

Missing conspicuously in this pitch by the Indian Government are the real "first user rights" that already exist. It is incongruous, in this day and age, to suggest that the waters of a river are considered as "being used" only if they are being used to generate hydropower or are being diverted for irrigation. In reality, the waters of the Brahmaputra are already performing a large variety of functions, sustaining rich ecosystems, flora and fauna, cultures and a wide range of livelihoods.

The Brahmaputra basin in the North East sustains a great diversity of flora and fauna. The flood plains of the river have a large number of wetlands or beels, which perform the function of water retention and support traditional fisheries. The Kaziranga National Park, a World Heritage Site is also sustained by the Brahmaputra. If at all the Government of India wants use the "first user" argument, these "existing uses" would provide far stronger grounds. Apart from the fact that these "uses" have been in existence for centuries, the also provide sustenance to millions of people and to rich ecosystems.

The Government should initiate a comprehensive documentation of these critically important ecological, livelihood-providing and cultural functions being performed by the Brahmaputra (and its tributaries) and how upstream developments in China would affect them, as they surely would. Such a report would make a powerful case. However, it would also raise questions on India's own unbridled dam building plans in the North East.

In reality, the dam building, hydropower development and river diversion plans of both, China and India are likely to have severe social and environmental impacts. The race on either side to carry out the construction at fast pace so as to claim first user rights will only aggravate these impacts, without really offering any strategic advantages.

In the long run, a true peaceful, long lasting and sustainable solution of the transboundary issue can only come from good faith negotiations based on the principles of reasonable and equitable sharing, no significant harm, information sharing and respecting the rights of the local communities and the environment. To do this, both the countries must forsake the rush to create infrastructure without due diligence - which can destroy the very basis of "good faith". Instead, they must immediately initiate comprehensive dialogue on this issue that involves the local communities and representatives, puts environmental, cultural and livelihood needs on the same footing as other economic aspects, and helps both countries move towards an equitable treaty or agreement.

In September 2010, about 50 organisations from the North East sent a common memorandum to the Prime Minister of India and the Premier of China. In the memo, they asserted that "several communities in this stretch of river identify it by several names and attach spiritual, cultural and economic importance to nature, and they are first users and in fact the defenders and protectors of the river and its ecosystem. We fear that this being not only one of the finest rivers but also the finest ecosystems on earth, the communities surviving on this ecosystem will be destroyed by the politics of water and energy and the game of one-upmanship of these great nations".

They also called on the two governments to stop all existing and proposed dam construction activities on Siang River and collectively agree to hold these river(s) as Heritage Rivers for all future generations to come, and hoped that "there will be sanity and boldness in dealing with the proposed dams in upper and lower reaches of Yarlung Sangpo/Siang/Brahmaputra rivers."

It is important for the governments to respect these sentiments of the people of the valley.

Wen Jiabao's recent visit to India also seems to have opened up important opportunities. The Joint Communiqué issued by the two Governments during this visit states that "The two sides reiterated that they will promote and enhance cooperation in this field [of trans-border rivers]". Wen Jiabao also said that "China takes seriously India's concern about the trans-border rivers, and we are ready to further improve the joint working mechanism ... We will do whatever we can and do it even better ..."

We must treat this as an invitation to move forward along the direction of comprehensive negotiations, for the sane and bold course of action that the communities in the region are calling for.