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

ii

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

iii

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.

iv

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

v

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.

vi

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).

vii

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

viii

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.

ix

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 VII Chapter 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

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K Non-point Sources of Inland Water Pollution .........................................................50

VII Impacts 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

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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 Non-

Navigational 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

VII Future 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

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4 Economic and Financial Management ...........................................................184

5 Research and Information Management.........................................................184 6 Water for the Environment .............................................................................185 7 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

VII Concluding 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

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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 VII Others ............................................................................................................................317

xiv

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

xv

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 Pollution-

Related Issues ................................................................................... 230

xvi

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

xvii

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)

xviii

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’.

xix

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

xx

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

xxi

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

xxii

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

1

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 resource5

on which all living beings are directly and

ecosystems6 are indirectly dependent.

7 Inland water resources include the rivers,

lakes, natural wetlands, groundwaters and reservoirs of a country. Transboundary

water resources8 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.

2

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 self-

reliance 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.

13Sustainable 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.

3

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.

4

availability of freshwater is highly seasonal23

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 capacity27

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.

5

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.

6

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 Agenda Item 21, above n 34, para 18.38.

38 2

nd 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 3

rd World Water Forum held in Kyoto, Japan from 16–23 March 2003.

7

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

WWF42

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: promoting-

institutional 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’.

8

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 environment47

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 laws51

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).

9

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.

10

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 200462

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.

60AQUASTAT, FAO’s Information System in Water and Agriculture (2010)

<http://www.fao.org/nr/water/aquastat/countries_regions/bangladesh/index.stm>.

61 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.

11

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.

12

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

13

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.

14

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).

15

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).

16

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.

17

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, 3

rd ed, 2010) 40.

18

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.

19

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.

20

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.

21

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

22

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.

23

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.

24

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 freshwater2 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.

25

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, 2

nd 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>.

26

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 Water-

Introducing 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.

27

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.

28

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 place17

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 4

th 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.

29

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 water-

related 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 11

oC 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.

30

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 three-

quarters 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.

31

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.

32

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.

33

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>.

34

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.

35

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.

45A 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.

36

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

groundwater51

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.

37

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.

38

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>.

39

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.

40

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.

41

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.

42

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.

43

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.

78Water Pollution FAQ (20 January 2011) Water Treatment Solutions Lenntech

<http://www.lenntech.com/water-pollution-faq.htm>.

79Water Pollution (12 August 11) National Institute of Environmental Health Sciences

<http://www.niehs.nih.gov/health/topics/exposure/water-poll/index.cfm>.

44

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 oxygen-

demanding 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.

45

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 sources86

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.

46

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-water-

pollution.html>.

47

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.

48

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

establishments

Textiles,

apparels,

tanneries

Paper, paper

products,

printing

Chemicals,

plastics,

petroleum

Non-metallic

minerals

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.

49

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, sodium-

sulphide, 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.

50

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.

51

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 fertilisers111

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.

52

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.

53

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 consumptive125

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.

54

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.

55

water pollutants can be divided into two categories: macro-pollutants133

and micro-

pollutants.134

Table 2.7: Sequence of Water Pollutant Sources and Their Impacts

Pollutant

sources

Source

type

Pollutant types Quality problem Major

challenges

Agriculture Non-

point

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

Non-

point

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.

56

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.

57

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.

58

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 well-

established 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.

59

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 sources8 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.

60

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 by-

law 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, 3

rd ed, 1999) 389.

15 Technological means the available technology to reduce inputs of pollutant into waters.

61

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 >.

62

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.

63

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.

26I 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.

64

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.

65

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.

66

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.

67

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.

68

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 multi-

sector 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 terms46

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.

69

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.

70

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.

71

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.

72

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 6–8.5 6–9.5

SS 10

TDS 500 2000, 1500

Temperature

(ᴼC)

20–30 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.

73

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).

74

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.

75

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 controls70

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, 2

nd 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).

76

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.

77

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.

78

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, 37

th session, 48

th 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.

79

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.

80

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 outdated100

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.

81

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 co-

riparian 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.

82

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).

83

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 lower-

riparian 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.

84

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.

85

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.

86

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 authority-

independent 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.

87

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

crisis139

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, 2

nd 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.

88

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.

89

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 are poor because of inappropriate and rigid institutional

arrangements.152

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.

90

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.

158Alexandra 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.

91

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.

92

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 E-

97–02, 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.

93

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.

94

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.

95

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.

96

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 report10

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.

97

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

Declaration18

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

98

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

problems21

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 2

nd World Water Forum, Hague, March 2000.

99

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.

100

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 Rio-

Dublin 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.

31Global 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>.

101

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 matters35

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

102

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.

103

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.

104

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.

105

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 polluter-

pays 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 of Natural Resources’ (2007)

<http://www.csu.edu.au/faculty/science/ses/>.

59 Bruch, above n 55, 93.

106

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.

65The Precautionary Principle Project (27 September 2012)

<http://www.pprinciple.net/the_precautionary_principle.html>.

66 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.

107

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.

108

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 well-

tested 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.

109

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).

821992 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.

110

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 polluter-

pays 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 5

th Environmental Action Programme of the European Commission, Towards Sustainability, COM

92 11 (23) 67.

86 Howarth, above n 80, 141.

111

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.

91Meredith 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.

112

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.

113

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.

114

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.

115

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.

116

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 sectoral111

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 sectors116

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.

117

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.

118

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.

119

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 principles128

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 21

st 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.

120

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 one-

size-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.

121

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.

122

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 INGOs1 and

various judicial and arbitral decisions are analysed. This charter examines

inadequacies and discrepancies between the benchmarks management principles2

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.

123

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.

124

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.

125

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 principles22

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 21

st Century: The Case of the River

Ganges Basin (Ashgate, 2005) 8.

126

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 decisions31

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).

29Muhammad 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.

127

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

Commission36

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.

128

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 Case43

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 Case44

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.

129

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 agreements51

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.

130

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.

131

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 treaty60

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 principles63

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.

132

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.

133

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.

134

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.

135

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.

136

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.

137

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 far-

reaching 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.

138

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.

139

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-rio20-

outcome-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>.

140

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 Feb 2013)

<http://www.un.org/works/Lesson_Plans/.../Lesson_Plan_on_Water.doc> .

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 5

th WWF.

141

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 challenges112

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.

142

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 articles118

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.

143

recognised that riparian states have a shared responsibility to each other and put

some embargo121

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.

144

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

resources130

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.

145

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.

146

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

resolution144

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’.

147

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.

148

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.

149

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 recommend166

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.

150

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

Rules176

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.

151

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.

152

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 non-

discrimination, 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.

153

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.

154

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 INGOs199

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.

155

been adopted by the members of different regional organisations and by some

governments all around the world.200

The UN201

and FAO202

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 hydro-

geographical boundaries and thus not only on administrative and political

boundaries.207

Some principles208

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.

156

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 benchmarks209

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 treaties211

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, 2

nd 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.

157

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.

158

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 non-

navigational 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.

159

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 principles230

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.

160

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 upper-

riparian 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.

161

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.

162

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 non-

navigational 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 non-

navigational 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.

245Forty-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.

163

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 re-

use.

164

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 management258

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 livelihoods261

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 Trans-

boundary 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>.

262Anders 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.

165

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.

166

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.

167

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.

168

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).

169

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.

170

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.

171

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 divisions8 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. Twenty-

four 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.

172

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).

173

for subsequent water sector planning. To recast the NWP within the appropriate inter-

sectoral 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).

174

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 resources21

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).

175

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 infrastructure31

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.

176

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 non-

functional, 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).

177

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.

178

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 power37

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).

179

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.

180

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.

181

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.

182

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.

183

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 co-

riparian 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.

184

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 withdrawal71

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.

185

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>.

186

resources management77

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 NEMAP79

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.

187

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 action83

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.

188

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.

189

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.

190

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 water-

related 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.

191

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 agencies104

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.

192

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.

193

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.

194

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).

195

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.

196

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 responsibilities120

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.

197

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.

198

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.

199

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.

200

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>.

201

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).

139Murshed Ahmed, ‘Regional Co-operation on Transboundary Water Resources Management:

Opportunities and Challenges’ (Paper presented at the Bangladesh Economic Association Conference,

Dhaka, Bangladesh, 2007) 9.

202

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 large-

scale 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.

203

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 power144

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.

204

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 criss-

crossing the country, high density of population and widespread poverty, policy and institutional

weaknesses, shortage of resources and lack of technological advancement.

205

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.

206

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.

156UN Water, Climate Change Adaptation is Mainly about Water (2009)

<http://www.unwater.org/downloads>.

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.

207

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.

208

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.

209

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 self-

sufficiency 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.

210

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 Management (2010)

<http://www.fao.org/nr/water/aquastat/countries/bangladesh/index.stm>.

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.

211

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.

212

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, 2

nd ed,

2007) 388.

185 New Jersey v New York (1931) 283 US 336.

186 Ibid 342–43.

213

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.

192Food and Agriculture Organisation, Treaties Concerning the Non-Navigational Uses of

International Watercourses-Africa (FAO of the United Nations, Rome, 1997) 29.

214

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 demands194

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.

196Shapan 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.

197Mosharefa 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.

215

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.

216

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.

217

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.

218

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 long-

term 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.

219

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 cusecs224

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.

220

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.

221

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.

222

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>.

223

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.

224

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.

225

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.

226

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 sector-

specific 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.

227

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.

228

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 short-

medium 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 .

229

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, water-

sharing treaties.

Augmentation of dry

season water flow,

consumptive use of

surface and

groundwater.

Strengthening of

regional

cooperation.

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.

230

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 >.

231

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 community-

based 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.

232

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.

233

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 long-

term 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 non-

conventional 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.

234

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.

235

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

guideline32

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.

236

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

>.

237

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, non-

cooperation 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

238

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 non-

transparency and lack of data exchange exist among the countries relating to their

water sector activities and within each country among different government and non-

government 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.

239

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 ready-

made 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 21

st 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.

240

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.

241

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 Conference60

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).

242

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.

243

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 issues72

are increasingly taking a place in the constitutions of

countries.73

Such constitutional provisions74

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 15

th amendment of the Constitution of Bangladesh, amended in 30th June 2011.

76 Principle 2 of the Dublin principles.

244

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.

245

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.

246

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

principle86

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.

247

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.

248

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.

249

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.

250

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 inefficient107

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.

251

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.

252

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.

253

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.

254

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.

255

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.

256

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 types129

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.

257

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.

258

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.

259

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.

260

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.

261

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.

262

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

points157

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.

263

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 initiatives165

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.

264

Revisiting existing legal principles with a view to devise an efficient and cost-

effective 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.

265

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, 55

th sess, 8th

plen mtg, Agenda Item 60(b); UN Doc A/RES/55/2 (8 September 2000) 5. Discussed in Chaper 5 III

F.

266

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 instruments8 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.

267

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

268

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 culture10

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 biodegradable14

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.

269

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.

270

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 non-

compliance 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.

271

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

>.

272

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.

273

(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 forum29

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.

274

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.

275

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 system38

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 resources40

into the

MoWR exclusively. In this context, Brazil also has one central agency to manage

nationwide water resources. The country has a number of articles41

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.

276

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.

277

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.

278

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.

279

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.

280

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IV CONFERENCE PAPERS, WORKING PAPERS AND REPORTS

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Jønch-Clausen, Torkil, ‘Integrated Water Resources Management (IWRM) and Water

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Ministry of Water Resources, ‘National Water Policy’ (Government of India, 2012)

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Proceedings of the Tenth Conference (Inter-American Bar Association Buenos Aires,

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Rahaman, Muhammad Mizanur, ‘The Potentials of International Water Laws

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XII World Water Congress: Water for Sustainable Development- Towards Innovative

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Rahman, A Atiq, et al, ‘Bangladesh: State of the Environment 2001 (Report, United

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Rahman, Muhammad Mizanur, ‘Bangladesh – From a Country of Flood to a Country

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