Floods in Bangladesh and India's responsibilities under international environmental law

Bangladesh is prone to flooding due to its geographical location. The country is surrounded by mountains on three sides: the Rajmahal Hills to the west, the Himalayan Mountains to the north, and the Meghalaya Plateau and Tripura-Chittagong Hills to the east. 

Rainwater runoff from these vast hilly areas, along with Himalayan snowmelt, creates significant runoff in Bangladesh, which receives 80% of its rainfall between May and September. 

Additionally, the low-lying land, part of the Ganges-Brahmaputra delta, brings water from upstream countries like India. Consequently, flooding is a critical issue in Bangladesh, a country characterised by low tides.

Recently, eight districts in Bangladesh have experienced the worst flooding in recorded history. Three million people have been reported stranded in these districts, and more areas are rapidly submerging. Continuous rainfall, caused by a persistent monsoon low-pressure system, coupled with a strong Madden-Julian Oscillation and the jet stream's current position over Central Asia, is responsible for the disastrous flood conditions.

The Indian Ministry of External Affairs has stated that the allegations that the opening of the Dumbur Dam is responsible for the floods in Bangladesh are factually incorrect. According to India, the catchment areas of the Gumti River, which flows through both countries, have seen the heaviest rains of the year in recent days, contributing to the floods in Bangladesh.

However, despite India informing Bangladesh about the heavy rainfall and impending floods, there was no specific information provided regarding the opening of the dam. In addition to the Dumbur Dam in Tripura, the Kalashi Dam in the same region has contributed to the flooding in Feni, one of the most severely affected areas.

Water disputes have long been a point of contention between Bangladesh and India. In 1976, Bangladesh even raised the issue at the United Nations General Assembly due to India's unilateral withdrawal of water at Farakka. Prior to the Farakka Project, India had denounced the Statute on the Regime of Navigable Waterways of International Concern (1921), which could have been invoked by East Pakistan to bolster its argument against the project. 

The reduced flow of the Ganges has severely affected 33% of Bangladesh's population, who depend on the Ganges basin.

It is important to note that under the customary rules of International Environmental Law and Principle 21 of the Stockholm Declaration, India is obligated to refrain from taking any actions that could have disastrous environmental consequences in Bangladesh.

Moreover, any steps taken by India must adhere to the principle of "Prevention of Harm" (also known as the principle of transboundary harm), which dictates that no state has the right to use its territory in a way that causes harm to another state. This principle is enshrined in the Stockholm Declaration (1972) and the Rio Declaration (1992). 

The objective of this rule is to minimise the risk of environmental harm and ensure that any administrative decisions with environmental impacts are thoroughly evaluated. The principle is violated when a state fails to meet a specific standard of care and neglects to take proportionate measures to mitigate foreseeable risks.

The rule of prior notification requires that if a state's activities have the potential to damage the environment beyond its borders, it must provide the affected state(s) with prior notice and, ideally, engage in discussions in good faith. This rule is included in international agreements such as the Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) and the United Nations Convention on the Law of the Sea (1982).

Additionally, states are obligated to cooperate on global environmental matters, including those that affect neighbouring countries. Principle 24 of the Stockholm Declaration states:

"International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing."

If India is found to have violated the principles of prevention of harm and prior notification (and consultation), it can be held liable for committing internationally wrongful acts. However, both Bangladesh and India have refrained from ratifying the Watercourses Convention Treaty, which means that disputes related to international watercourses and water-sharing must be addressed through bilateral talks and agreements. 

Dispute resolution processes can occur in stages, beginning with bilateral negotiations, followed by optional third-party settlement methods, and, if no resolution is reached, an obligatory fact-finding commission.

Bangladesh must investigate the veracity of India's claims and take necessary diplomatic steps. Syeda Rizwana Hasan, Adviser for Environment, Forestry, and Climate Change, has stated that the ministry would take the necessary steps to initiate cooperative bilateral or multilateral solutions for issues related to international rivers. Professor Muhammad Yunus, Chief Advisor, recently met with the Indian High Commissioner in Dhaka to explore opportunities for early warning systems for flash floods.

A cooperative bilateral resolution of this issue is highly desirable for both countries. To achieve this, Bangladesh and India must fulfil their respective obligations under International Environmental Law. Bangladesh should also raise the issue with the Indo-Bangladesh Joint Rivers Commission, the bilateral working group of the two nations.

As a downstream country, Bangladesh has long been affected by India's upstream actions on shared watercourses. Historically, India has not voluntarily agreed to equitable water distribution. If Bangladesh ratifies the Watercourses Convention, it will have the opportunity to seek redress from the United Nations, even if India does not ratify the convention.

Kanak Kanti Karmakar is an Apprentice Lawyer at District and Sessions Judge Court, Dhaka. Pritom Kanti Karmakar is a LLB Student at Stamford University Bangladesh, Dhaka.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.