Brahmaputra: Will Ering's Letter Matter?

Lok Sabha MP from Aruchal East Constituency Ninong Ering has written to Prime Minister rendra Modi urging him to take up the matter of the sudden depletion in the water volume of the Siang River at Pasighat in Aruchal Pradesh and of the change in its water quality with the Chinese government (“Siang River recedes, Iring writes to PM”, The Sentinel, 28 November 2017). According to Iring, it could be due to diversion of the river – the Yarlung Tsangpo, as it is known in Tibet, which eventually becomes the majestic Brahmaputra in Assam after primarily traversing through Aruchal as the Siang – in Tibet as it was unusual for the water level of the river to recede during winter. Referring to reports of Chi’s water diversion strategy on the Brahmaputra in Tibet, he said in the letter that though Chi denied the allegations, the issue remained a matter of concern as the Siang had undergone a sudden change in its appearance and character. While on a visit to the Siang at Pasighat on November 25, the MP said that the recent report of Chi’s construction of a 1,000-km long tunnel to divert the Siang (Brahmaputra) in Tibet to its Xinjiang Province to the Taklamakam Desert was likely to be true. The letter said that “it has been already two months that the Siang River turned black and contamited”, which was “an unusual phenomenon”. Therefore, he has urged the Prime Minister to talk to the Chinese authority concerned – who obviously is none but the most powerful man in Chi, Xi Jinping, the President of that country. Ering says that there is no other reason for the dirtying of the mighty Siang except heavy land excavation in Chi that should be verified by an intertiol team.

In my past three articles appearing in this column last three consecutive Sundays – after extensive research on Chi’s new-age hydro-strategy on the issue of water war that Chi has unleashed on the Brahmaputra (“Water War: Northeast in Peril”, 12 November 2017; “Stealing the Brahmaputra Away?”, 19 November 2017; and “Conspiracy on the Brahmaputra”, 26 November 2017) – I have had occasion to dwell at length on the Great Western Route project of Chi to divert the waters of the Brahmaputra, apart from its ambitious and perilous plan to build the largest ever dam after its successful Three Gorges Dam on the Yangtze River, at the Great Bend area (the Brahmaputra Canyon, which is the world’s steepest and longest canyon), exactly the place where the Yarlung Tsangpo takes a stunning, sharp U-turn to enter Aruchal and eventually becomes the Brahmaputra in Assam. The implications have also been stated: tremendous damage to the fragile bio-diversity not just in the Great Bend area in Tibet but also far-reaching hydrological, ecological and economic impacts of the most catastrophic kinds in Aruchal and Assam, apart from Bangladesh of course. Highly erudite and illumiting research articles, apart from Brahma Chellaney’s epoch-making, award winning book Water: Asia’s New Battleground, have been quoted in those three write-ups. Now as I turn to the fourth part of the continued series on Chi vis-à-vis its dangerous strategic designs on the Brahmaputra in Tibet, especially in the wake of Ering’s recent letter of justified concern to the Indian Prime Minister, some serious deliberation on the Chi advantage factor – its upper legal hand on the issue, as it has rightly been called by experts – is in order.

First thing first. Chi has no water-sharing treaty with India, and therefore it “remains legally unencumbered to appropriate river waters and increase downward dependency”, to quote Chellaney from his classic book. The crux of the matter is that Chi, given 1) its ambitions to be the world’s top economic power, 2) its desperate need to rejuvete its exhausted Yellow River, 3) its need for responding to the water cries of its parched northwestern region (including Beijing, the capital itself), and 4) its well-crafted strategy to gain upper leverage against India in Aruchal that it lays claim to in entirety and not just in Tawang, has no reason to take up Indian concerns vis-à-vis the Brahmaputra with sympathy or with any sense of being a good neighbour. In fact, Chinese behaviour towards India after the 1962 war has never suggested even remotely that it has any intention at all to share the warmth of a good neighbour with its southern neighbour now competing well with the Chinese stride towards intertiol big-player stardom.

Secondly, in the absence of any universally or widely accepted intertiol water law or convention – which the often-vaunted 1997 UN Convention on Non-vigation Uses of Intertiol Watercourses is not, given that the two giant Asian stakeholders in the water war, India and Chi, are not its sigtories – it all falls back to the principles of intertiol customary law on transborder water flows such as the Brahmaputra. Under these principles, Chi has a great advantage over India. One of the key principles is the “doctrine of prior appropriation”, which in simple words means that the priority right to the use of a river belongs to the first user of the river, with the first user called “senior appropriator”. In the case of the Brahmaputra, the senior appropriator is obviously Chi from where the river origites – Tibet, now, unfortutely, acknowledged by India not as an “autonomous” region in Chi as was the practice before 2003 but as “part of the territory of the People’s Republic of Chi” over which Chi has absolute sovereignty. Therefore, Chi has greater rights over the Brahmaputra than India has. This is of India’s own making. India is helpless because it is a lower-riparian state and under no intertiol law is Chi, being an upper-riparian state, bound to address the hydro-concerns of the lower riparian.  Chellaney writes: “The central legal element in prior approximation is the diversion of water (emphasis added) from a watercourse for ‘beneficial’ applications, including irrigation, industrial or mining purposes, electricity generation, and municipal supply.” Now, given this legal reality, Chi can cite any of those beneficial applications and embark on its gargantuan water diversion task at the Great Bend or, not to defy the laws of physics, shift the diversion point to 3,588-metre-high Shoumatan site towards the west of the Great Bend up the river course as reported in many well-established intertiol jourls. How can India then complain?

Thirdly, the principles of intertiol customary law on transborder rivers also entail the “law of riparian rights”. This law gives the privilege of proprietary water rights to the owners of the lands contiguous to rivers. In the case of Chi vis-à-vis the Brahmaputra, such rights belong to Chi, the owner, whose land is contiguous to the river which origites right there, and it thus, again, makes Chi the senior appropriator. The other important consideration is that in intertiol customary law, in fact, the riparian landowner has the right to water uses well beyond the bank of a river – in the instant case, the Brahmaputra in Tibet. In other words, India is trapped. Since India has accepted Tibet as a Chinese territory over which Chinese sovereignty is undisputed, there is no way India can challenge the law of riparian rights when it comes to the smart Chinese hydro-tactics on the Brahmaputra in Tibet. Chellaney rightly makes the point that “India has accepted that Chi, by law, is the rightful owner of the transboundary basins in Tibet (emphasis added)” and that “Chi thus cannot be challenged over its assertion of sovereign ‘riparian rights’ on those shared water resources”, which ultimately implies that “the law of riparian rights indeed empowers upper-riparian Chi to a reasoble water share, but without reasobleness being defined”. Therefore, let us understand this very clearly, and it is for the political and diplomatic circles in New Delhi to understand this far more clearly and precisely: In accordance with its riparian rights as suggested by customary intertiol law, Chi holds the right to build dams or divert the waters of any intertiol river – and here we are concerned with the Brahmaputra – origiting in its territory, no matter whether the beneficiaries of such projects are Tibetans or the mainland Chinese in the parched Northwest Chi. This is serious threat to downstream areas such as Aruchal and Assam. 

So where does this leave India in? It is in this context that the Aruchal East Constituency MP’s letter to the Indian Prime Minister assumes a strange conclusive form, given especially the reality that India has lost all its bargaining ground in the matter of the Brahmaputra origiting in Tibet by accepting Tibet as an integral part of Chi which has absolute sovereignty – not restricted sovereignty or suzerainty as was the case of India’s acceptance earlier – over the land of the Dalai Lama (who, strangely again from the angle as above, lives as the spiritual guru of the Tibetans in India that Chi opposes staunchly on every suitable occasion such as his visits to Aruchal Pradesh). How the Indian Prime Minister reacts to the letter, will be interesting. 

(Bikash Sarmah, a freelance jourlist, is doing independent research on Chi’s hydropolitics and may be reached at bksarmah07@rediffmail.com)