SUPREME COURT URGED TO RECONSIDER WEST SETI DECISION
Dr. AB Thapa
At present our country is heading for the implementation of the West Seti storage dam project. This project will have a concrete faced gravel fill type dam which could be the highest dam of this type in the whole world. The dam will impound a vast storage reservoir. It will be about 1,500 million cubic meters in volume. Needless to say that the failure of the West Seti dam would result to a colossal loss of life and property. It still remains unanswered who would be held responsible for failure of the mammoth West Seti dam, which is proposed to be built by a private developer perhaps even without being thoroughly examined by a competent panel of experts on behalf of the government. Let us not forget that slight negligence resulted to failure of the Malpasset dam near Frejus in Southern France. Similarly Italy was hit by 261 meters high Vaijont dam disaster.
It does appear that the Supreme Court has not been properly informed by the concerned government agency about various critical issues pertaining to the West Seti project. It is hoped that the full court of the Supreme Court will soon be reviewing the earlier decision of the two judges on West Seti taking into cognizance the evidences described hereinafter.
Banke People Seek Justice
The very recent decision of the Supreme Court on West Seti project has greatly shocked those of us, who know that a vast number of people of Nepal living in Banke district would be displaced from their ancestral homes due to widespread submergence once the West Seti storage project becomes operational. The controversial Laxmanpur barrage located very close to Indo-Nepal border is a direct extension of the West Seti storage dam project. People of Banke district are already suffering from the partial submergence after the completion of the Laxmanpur project. The flooding situation would greatly worsen when the West Seti project starts to operate.
There can hardly be any justification to the government decision to implement any project enhancing the viability of the Laxmanpur barrage when our civil society and the local inhabitants since a long time are demanding the demolition of that barrage.
Irrigation Benefit to India Twice the Power Benefit
It is explained hereinafter how the net irrigation benefits accruing to India from the use of the augmented regulated flow of the West Seti could be almost twice as much as the total net power benefit of that project.
According to the feasibility study of the Karnali High Dam project carried out under the assistance of the World Bank in close collaboration with the governments of India and Nepal the total net discounted irrigation benefit of the West Seti project accruing to India at a discount rate of 10% at 1989 price level for the reference year 2003 is found to be as high as 720 million US Dollars. Similarly, based on the feasibility study carried out by the SOGREAH, if the year 2003 is taken as the reference year and the 1989 price level is adopted at a discount rate of 10%, the total discounted power benefit of the West Seti project would be 912 million US Dollars against a discounted cost of the project estimated at 456 million US Dollars. Thus the total net discounted power benefit of the project could be only 456 million US Dollars. It implies that the net irrigation benefit accruing to India would be almost twice the total net power benefit.
Nepal Would Forfeit Forever its Right
Nepal would forfeit forever its right to benefit in perpetuity from the regulated flow of the West Seti if agreements are not signed in advance between the governments of India and Nepal on the benefit sharing issue. Our full right to ownership of waters stored in our proposed storage reservoirs is guaranteed by widely accepted international practices. Moreover, India too is willing to buy water from our country. It is quite unfortunate that our decision makers under the pressure of some multinationals are turning a blind eye to it.
International Principles Governing Water Export
It can be generally said in reference to storage projects proposed in Nepal that the guaranteed availability of water would be quadruplicated after the construction of storage projects. In other words West Seti with a storage dam would be equivalent to four West Seti rivers. Our right to ownership of such vastly augmented flow of the West Seti is guaranteed by international laws as described hereinafter.
Various treaties and agreements including the Columbia River Treaty and the more recent Lesotho Highland Water Project Treaty can be construed to serve as the basis governing the water export according to the Article 38 of the Statute of the International Court of Justice. The Statute provides that the Court, whose function is to decide in accordance with international law- both in general and international water resources- such disputes as are submitted to it shall apply international conventions, treaties between states, customs, general principles of law, etc.
Columbia River Treaty
The Columbia River treaty between the United States and Canada signed on Sept. 16, 1964, constitutes an incontrovertible advance in international law. The treaty, whose ratification was delayed for three and a half years represents a modern approach to international water problems. It also embodies the so-called downstream benefit ( water export) theory, which prescribes that benefits accruing to the lower riparian because of installations and works constructed in the territory of the upper riparian be divided equally between the two. Upper riparian is entitled to this benefit in perpetuity. This theory has virtually become one of the general principles of international law.
Lesotho Highland Water Project Treaty
Realization of the Lesotho Highland Water Project is made possible under a Treaty signed by the Republic of South Africa and Lesotho in 1986. Under the terms of the Treaty, the South Africa agrees to pay in perpetuity a royalty for all water made available to it after hydroelectricity generation in Lesotho.
India Willing to Pay
Recently the information provided in the Indian news media clearly suggests that the Government of India is now engaged in developing a policy to obtain the consent of Nepal and Bhutan through a revenue sharing agreements in respect of the regulated waters discharged from the storage reservoirs built inside our countries. Unfortunately, our country is not paying attention to this highly important development that would help to maximize the benefits accruing to our country from the large storage dam projects to be implemented inside Nepal.
Water Export Sensitive Issue
Water export or downstream benefit sharing is a very sensitive issue. It is evidenced from way the Columbia River Treaty between the USA and Canada was finalized that our government or in its place a government of any other country must feel itself duty bound to immediately step in to make correction once it is realized that some mistakes have been made. Canada had turned down the Columbia River Treaty even after initialing the Treaty in White House followed by its approval in the US Congress once the Canadian Government realized that the Treaty does not fully meet the aspirations of its people. Ultimately the USA was forced to make substantial amendments to the Treaty according to the wishes of Canada.
