Beyond Renewal: Rethinking the Post 2026 Ganges Water Governance Framework
It is now part of the international customary law that no states are allowed to use the international watercourses even in their own territories, in such a way that would cause significant harm to other basin states or to their environment.
The 1996 Ganges Water Sharing Treaty (GWST) between India and Bangladesh is due to expire in December 2026, posing mounting hydro-political and legal challenges for Bangladesh as a climate-vulnerable downstream region.
Renewal of the Treaty accepting the 1996 framework puts Bangladesh in a structurally weaker position before fresh negotiations can begin, since the treaty was concluded based on selective and outdated data (1949-1988) on water available at Farakka, without giving due consideration to adverse ecological impact, excluding upstream water flows and upper riparian regions despite the transboundary character of the Ganges River Basin spanning over Bangladesh, China, India and Nepal.
Despite domestic pressure to internationalise the matter, the then Bangladeshi prime minister, Sheikh Hasina, refrained from addressing the water issue in her 1996 UN General Assembly speech.
It is now part of the international customary law that no states are allowed to use the international watercourses even in their own territories, in such a way that would cause significant harm to other basin states or to their environment; international water law and human rights law mandates that all individuals have access to safe, adequate and affordable water and obligates equitable and reasonable water sharing by these states.
But the Farakka barrage, located approximately 10 kilometres from the India-Bangladesh border, commissioned by India to divert water unilaterally, is continuously causing ecological damages and violations of lawful water rights in Bangladesh.
Allocation formulas alone on bilateral basis does not guarantee downstream security; Bangladesh requires a new treaty framework that guarantees dynamic water-sharing formulas, guaranteed minimum ecological flow, binding dispute resolution or third-party adjudication, real-time data and information sharing obligations, climate change adaptation clauses, basin-wide approach, an integrated system of surface and groundwater sharing mechanism.
Thus, Bangladesh should declare the GWST obsolete before it enters into a fresh formal negotiation in 2026 or afterwards, and should follow the international best practice in protection of downstream interests, such as the Indus water treaty, the Mahakali River treaty, Mekong agreement, UN Watercourses convention.
The GWST has been criticized to be vague and a significant compatibility gap exists with the UN Convention on the Law of Non-Navigational Uses of International Watercourses (UNWC) 1997, 1992 UNECE Watercourse Convention and the 2004 ILA Berlin rules. The scope of the GWST is limited to the sharing of surface water and excludes tributaries and groundwater flowing into a common terminus (Art. 2(a), UNWC).
Even though the preamble mentions the need for developing strategies for augmenting the flow of the Ganges, the treaty text does not mention anything regarding the study of the augmentation proposals.
During the negotiation period in 1974 and 1978, Bangladesh proposed to augment the water flow of the Ganges by constructing storage facilities like dams and reservoirs in the upper parts of the Ganges Basin, mostly in Nepal.
But as this would amount to the regionalisation of the issue, India opposed the proposal, foreclosing the possibility through cooperation with Nepal.
The preamble also indicates desire of the two countries to work towards ‘optimal utilization’ of water resources but lacks any provision or guidance on the operationalization of joint and ‘sustainable development’ of the basin.
Moreover, the text of the treaty mentions “principle of equity, fairness and no harm” as guiding principles (Art. IX, X) but falls short of defining the means and mechanism to do so at the basin level to support the augmentation of the flow.
The term “equitable” is also narrowly defined to mean only the division of water into equal portions rather than ‘the equal right to use the water for beneficial purposes’. Even though the treaty mentions the no harm principle (Art. II), there is no procedural guidance on how to eliminate or mitigate any potential harm and related duty to protect the ecosystem.
Furthermore, each riparian state of an international watercourse bears the responsibility to exchange data and information concerning the condition of the watercourse including any present and future planned activities along the watercourse.
Although GWST contains institutional and procedural mechanisms for the exchange of information (Art. IV), India provides selective and limited information only about the Farakka, whereas information about all other hydro projects and constructions in the upstream and their effects on the shared water framework are kept outside the purview of the framework.
Another major defect of the GWST is that it does not have well-defined dispute settlement mechanisms or even a ‘minimum guarantee clause’ similar to Art. 2 of the 1977 short-term agreement. Thus, renewal of the GWST without major modifications means Bangladesh bargains from a weaker position as a vulnerable downstream state facing growing climate change challenges.
However, Bangladesh can learn from the experience of other lower riparian states through treaty borrowing and implementing international best practice. The Mekong Agreement treats the river as a single hydrological and ecological unit containing provisions related to collective basin responsibility, ecosystem-based basin approach, institutionalizing collective decision-making across the basin, basin-wide monitoring and coordinated planning, making it the strongest basin-wide governance mechanism.
Bangladesh should also consider involvement of a third party which has proven to be successful in the case of the Indus Water Treaty through the World Bank’s successful involvement as a neutral mediator in solving bilateral disputes between the two countries.
A cooperative framework may also be prepared following the Mahakali Treaty (India & Nepal) to develop joint basin projects like the Pancheshwar Multipurpose project for mutual benefits involving multilateral institutions like the World Bank or ADB.
Empirical analyses suggest that while information exchange and enforcement provisions (even through third party settlement) in river treaties are most effective in preventing militarization over river claims, conflict resolution mechanisms, monitoring and river based organizations without proper mechanisms are less effective.
Thus policymakers should invest their time in including enforcement and information exchange provisions focused on a coordinated basin-wide governance involving both India and Nepal. The framework should also integrate human rights and environmental obligations as Bangladesh and India both are signatory to the ICCPR, ICESCR and CBD, obliging the states to strike a balance between equitable utilization of the water resources and protection of the downstream water rights affecting the local communities.
Julian Rafah has completed LL.B. & LL.M. from the Department of Law, University of Dhaka and Taposhi Rabeya is a LL.B. Final Year student at the Department of Law, University of Dhaka.
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