The democracy-development tension in dam projects

Political Geography 23 (2004) 701–730 www.politicalgeography.com

The democracy-development tension in dam projects The long hand of the law R. D’Souza  School of Law, University of Waikato, Private Bag 3501, Hamilton, New Zealand

Abstract ‘Democratic development’ comprises two ideas: the idea of democracy that calls for devolution of power to communities and the idea of development that calls for conceding power to global institutions public and private. The post-war world has witnessed the simultaneous decentralisation of political power and the centralisation of economic power. Recent movements against large dams draw attention to developmental conflicts that embody this tension but do not theorise the underlying dynamic. Taking the award of the Krishna Water Disputes Tribunal as a point of departure this paper examines the centralisation–decentralisation dynamic in water conflicts in the Krishna basin in Southern India. The paper argues that there is a hiatus in our understanding of legal and institutional relationships in the ‘the economic’ and ‘the political’, ‘the national’ and ‘the international’ and ‘the colonial’ and the ‘post-colonial’ in relation to problems of river basin development. It challenges some conceptual underpinnings of the development paradigm. # 2004 Elsevier Ltd. All rights reserved. Keywords: Democratic development; Dams; Law and society; Development planning; Krishna water dispute; Federalism

And the essential movement of scientific theory will be seen to consist of the movement from the manifest phenomena of social life, as conceptualized in the experience of the social agents concerned, to the essential relations that necessitate them. [. . .] Now it is through the capacity of social science to illuminate such relations that it may come to be ‘emacipatory’. But the emancipatory 

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potential of social science is contingent upon, and entirely a consequence of, its contextual explanatory power (Bhaskar, 1998).

The problem of economic centralisation and political decentralisation ‘Democratic development’ is a catchword that has been used to justify a wide range of economic, political, technical and institutional developments since the end of World War II. ‘Democratic development’ comprises democracy, an idea that entails devolution of power to nations internationally and to communities within nations; and development, an idea that entails conceding power to global economic institutions, public and private.1 While the decentralisation of political power and the centralisation of economic power may be seen to characterise the post-war era generally, in the ‘developing’2 countries, the tension between the two dynamic appears structural and irreconcilable. How do the two apparently opposing movements: the movement towards centralisation evident in economic development and the movement towards decentralisation evident in political democracy co-exist in a systemic way? River basin development and dam projects formed an important part of the ‘development’ agenda in the post-war era. It was one of the first ‘development’ questions to be taken up in the Economic and Social Council (ECOSOC) of the newly formed United Nations in the post-war era and remains an important part of multilateral and bilateral ‘development’ programmes since.3 Not surprisingly, it was in relation to river basin development that the tension between democracy and development became explosive and echoed through social and environmental movements in the ‘developing’ countries challenging the very notion of ‘development’ (Fisher, 1995; Thukral, 1992). 1 ‘Democratic development’, ‘democracy’ and ‘development’ are used here in the widest possible sense. The terms form part of an extensive discourse that spans the post-war era. The discourses include dominant discourses (e.g. Lipton & Toye, 1990; World Bank, 1978, 1994, 1997) and critical ones (e.g. Byres, 1997; Corbridge, 1986; Escobar, 1995; Leftwich, 1993; Moore & Schmitz, 1995; Washbrook, 1997). Both types of discourses have undergone significant transformations, evolution and developments during the period immediately following the end of World War II, the Cold War period coinciding with the three UN Development Decades and the post-Cold War discourses of ‘globalisation’ and development incorporating ideas about ‘civil society’ and ‘participatory democracy’. The discourses spill over a number of disciplines ranging from area studies, development geography, political science, economics, international relations, socio-legal studies, management, policy studies and public administration. It is not necessary to traverse the exhaustive literature for the purposes of this article. It is sufficient to note here that however interpreted, ‘democracy’ entails some form of devolution of power and ‘development’ requires some form of economic integration into institutions that transcend local communities. 2 ‘Developing’ countries and ‘development’ are contested and value laden terms with varying meanings and interpretations. Throughout this article, the terms are used within quotation marks simply to denote a set of nations and political–economic processes in societies with colonial histories. 3 The United Nation’s publication series from 1951 to the present, first as ‘Flood Control Series’ continued later as ‘Water Resources Series’, is a useful source for tracing the growth and development of dominant ideas about water and river basin development within the ECOSOC and UN agencies.

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Analysis of problems relating to river basin development is usually located within two dominant matrixes. The first is the state–citizen matrix within a nation (Amte, 1990; D’Souza, Mukhopadhyay, & Kothari, 1998; Fisher, 1995; Goldman, 1994; Iyer, 1994; Thukral, 1992). The second is the North–South matrix in international relations (Aviva, 1997; Bakker, 1999; McCully, 1996; Sklar & McCully, 1994). In turn, the two matrixes are founded on two dominant conceptual building blocks that have influenced our understanding of the post-war world. The first is the idea of a nation-state as an independent entity. Notwithstanding the political and economic power imbalances, international law under the United Nations system recognises the sovereign equality of all nation-states. National constitutions in the wake of nationalist movements for independence support this conception. Following from this conceptual foundation, in relation to river basin development, the nation-state is seen as primarily responsible for river basin problems and their solutions. The second dominant conceptual component relates to privileging economic relations over other social relations in societies as reflected in the sanctity of private property, autonomy of economic entities and actors, the mobilisation of knowledge towards creation of wealth (Buck-Morss, 1995). Consequently, utilitarian ideas of river basins as economic entities dominate the conceptualisation of ‘development’. Following from this conception, solutions to economic problems are seen as the mobilisation of rivers and river basin populations for wealth production. Ideas about ‘development’ within international institutions in the UN system and in international law are premised on privileging economic relations over other social and natural relations. The two matrixes embody the centralisation–decentralisation tension in ‘democratic development’. The conceptual building blocks on which the two matrixes rest are inadequate to explain how the two opposing movements, economic centralisation and political decentralisation cohere and exist in a systemic way. One problem has been the conflation, obfuscation, and/or under-differentiated understanding of the juridical state and the sociological state.4 The state continues to be the axis around which the tensions between ‘democracy’ and ‘development’ are played out. The conflation, obfuscation and/or differentiation has resulted in a disjuncture between the geo-historical continuities in the architecture of ‘developing societies’ that act as causally effective generative mechanisms today, and the critique of development in contemporary society from perspectives of social and distributive justice premised on a variety of political economy perspectives (Byres, 1997; Byres, 1998; Corbridge, 1986; Escobar, 1995; Leys, 1996; Kothari, 1988; McMichael, 1996; Moore & Schmitz, 1995; Sachs, 1992; Slater, 1993). Equally, the under-differentiation has naturalised the ‘inside–outside’ distinctions in international relations on which much of development assistance, good governance programmes and other international dimensions of development are premised. The international political economy approaches, with its emphasis on political economy, is inadequate to explain the systemic co-existence of juridical autonomy of the (neo)colonial, ‘developmental’ or ‘Third World’ state (depending on ideological 4

For example see in Hardt and Negri (2000), especially chapter 1.

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preferences) and the unequal relations between states in the international political economy (e.g. Arrighi, 1993; Cox, 1993a,b; Gill, 1991, 1993; Halliday, 1992; Harshe, 1997). The representation of law in geography and of space in law forms part of a growing literature on law, space and society. Generally speaking, the literature focuses discursively around politics of representation informed by hypostatisation of the state and corporate economic actors or voluntarism, i.e. attributing to the state/ corporate actors a will analogous to human beings (Blomley, 1994; Blomley, Delaney, & Ford, 2001: Part II; Chouinard, 1994; Clark, 1992; Johnston, 1990; Murphy, 1994; Stewart, 1995). There is a hiatus in our understanding of the operation of law and legal processes between ‘the economic’ and ‘the political’. The hiatus serves to conceal the real nature of ‘development’ in the post-war era by mystifying the ‘the national’ and ‘the international’ dimensions of ‘development’ on the one hand, and ‘the colonial’ and ‘the post-colonial’ dimensions on the other. Interstate water conflicts provide an interesting point of departure to explore the structural dimensions of law in ‘democratic development’. Being conflicts between states, interstate water conflicts are neither within the citizen–state matrix nor within the North–South matrix of international development agencies, although they impact upon and are impacted by both. In this article the award (hereafter the Krishna Award) of the Krishna Water Disputes Tribunal (hereafter the Tribunal) on the interstate conflicts over the waters of the river Krishna in Southern India is used as the vehicle to critically examine the role of law in the structural tension and coherence between democracy and development. Dams, development and democracy under post-war capitalism River basin projects as ‘spatialised global commodities’ River basin projects lie at the heart of river basin development and interstate (and intrastate) conflicts over water (D’Souza, 2002, 2001). A dam is ex-facie a structure, yet another object produced regularly by economic actors, national and international. A dam is a commodity analogous to trains in railway systems. Yet, it is a very different type of commodity from goods and chattel, in that, it encompasses territory different from political boundaries of the state, it includes resident populations, and alters the nature–society–human relations between its users (consumers). Marx began his enquiry into capitalist society with analysis of commodity production as the starting point to analyse the social and institutional framework required for commodity production. In the process, he analysed capitalism as a total social system. Later, Marxist theorists analysed post-war capitalism, the emergence of monopolistic finance capitalism and new divisions of labour (Baran & Sweezy, 1973; Sweezy, 1970). Dependency theories, theories of neo-colonialism and imperialism focused on the economic aspects of the relationship and the political fall-out of the economic relations as if ‘the economic’ and ‘the political’ were two existential categories that needed to be conceptually integrated (Harshe, 1997; Leys, 1996). Geographers introduced the spatial dimensions of capital (Harvey,

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1982, 1985; Massey, 1992a,b; Slater, 1977, 1993). Constitutive theories interrogated the methodology behind political economy approaches. They suggested that the two categories did not exist ‘out there’ as independent realities. Instead they were analytical categories that need to be understood as constitutive elements of a single reality together with other constitutive elements such as law, space, gender, race and ethnicity, environment and other social relations (Hunt, 1993; Massey, 1992a,b). The new insights led to calls for re-envisioning capitalism (Buck-Morss, 1995). The modes of re-envisioning emphasised different dimensions of capitalism. Some emphasised political economy (Castree, 1999), others emphasised divisions of labour (Sayer, 1995) and yet others emphasised regulatory aspects especially in the context of ‘globalisation’ (Jessop, 2000). Envisioning dams as commodities call for re-envisioning the nature of the commodity itself. It invites attention to the ways in which nature–society–human relations are reconstituted within the commodity and the ways in which alienation from nature and labour is played out. These aspects of river basin projects in the specific geo-historical context of India are developed more fully elsewhere.5 The analytical categories and concepts deployed to critique capitalism in social theory (exemplified above) universalise their application. The same categories, e.g. class, capital, economy, state and so on, are extended to societies with colonial histories. The (neo)colonial/Third World/developing societies must therefore be understood on the same terms as the imperial/First World/developed societies. Social theory under these conditions may be able to sustain the critique of development at empirical levels, the moral/ethical levels and the scoio-political levels. However, the analytical categories and concepts do not go far enough to explain why and how, national independence, liberation and political autonomy notwithstanding, structural features of colonial relations continue to persist, to be reproduced and be adapted to new and evolving stages of capitalism and imperialism. The conflation/obfuscation/under-determination of the juridical and sociological state has resulted, in part at least in analysis of territoriality that has not only remained state-centred by and large, but has, equally, focused on construction of scale, conceptualised in hierarchical terms as global, regional, national and local levels of analysis (Agnew, 1997; Brenner, 2000; Delaney & Leitner, 1997; Driver, 1991; Herod, 1997; Leitner, 1997; Miller, 1997). However, conceptualising scale in terms of levels and hierarchy misses the dimension of geo-historical depth and geohistorical stratification so essential to any understanding of (neo)colonial/‘developing’/‘Third World’ societies (D’Souza, 2003). The above riders and qualifiers notwithstanding, the insights provided by some of the theoretical developments in the post-war era make it possible to see a river basin project as a ‘commodity’. In the era of monopolistic finance capital, river basin projects emerged as commodities on expanded spatial scales. However, the spatial scale of the commodity makes a qualitative difference to the nature of the 5

See D’Souza (forthcoming).

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commodity, to commodity production, and to social relations involved in the commodity production. As such, they do not circulate like other commodities within institutionalised market structures that though, constructed through law, are dispersed over space. Instead, they compel all other factors of production to circulate through a specific site, the river basin project. Like other commodity production, river basin projects are possible only within an appropriate legal and institutional framework. In the erstwhile colonies, colonialism, the earlier form of imperialism provided the legal and institutional fabric supportive of asymmetrical structural transformation of the colonies compatible with capitalism. The institution of the colonial state, property regimes, resource use regimes and a labour force freed from ties to the land are some of the constituents of the structural transformation (Alavi, 1975, 1982; Bagchi, 1973; Chandra, 1980; Cohn, 1997; Dutt, 1940; Kalpagam, 1997; Ramachandran, 1980; Wallerstein, 1986; Washbrook, 1990). The post-war UN system builds on these changes and consolidates the legal and institutional developments that occurred during direct colonial rule, especially in the last phases. As ‘spatialised global commodities’, river basin projects embody in a physical way all the macro-level contradictions in post-war world order. Four types of contradictions are identified in Fig. 1. They are: (i) contradictions between people; (ii) international–federal contradictions; (iii) contradictions between international institutions and western/capitalist governments; and (iv) federal–State contradictions. Contradictions between people include conflicts between water users, such as the head-enders and tail-enders in projects, or between cash crop growing, market oriented ‘modern’ farmers and subsistence farmers. They include people affected by dam projects due to submergence of land, rehabilitation and resettlement disputes or access to the uses of dams by way of irrigation water, power or domestic uses, and conflicts arising from the environmental affects of dams. Generally, contradictions between people arising out of dams embody tensions between classes and communities. The law conceptualises these contradictions as conflicts arising within the citizen–state matrix. The resolution is prescribed within civil and public law that characterises a constitutional democracy. In recent times such conflicts over water have become the foci of movements for social justice. National–international conflicts over water embody the ‘North–South’ tensions that underpin the politics of ‘development’ internationally. ‘North–South’ relations have become increasingly contentious since the 1970s. In relation to water, the conflicts include terms of lending, debt servicing, the economic regimes of international organisations, meaning and interpretation of the right to development, polices and programmes within UN agencies and perceptions of ‘dependency’, colonial inheritances and power-relations between ‘developed’ and ‘developing’ countries. These contradictions are conceptualised as conflicts in international relations within the ‘North–South’ matrix and seen as unrelated to domestic conflicts in law. The contradictions between international institutions and governments of ‘developed’ capitalist nations generally relate to normative aspects of governance and arise within organisations of ‘developed’ nations such as the Organisation of Economic Co-operation and Development (OECD) and G-8 nations. The econ-

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Fig. 1. Macro-level contradictions in river basin projects.

omic differences could include tensions between the need to maintain a rate of return on investments in river basin projects and the need for stability in international relations and the international political economy. Or, the ideological approaches to maintain the legitimacy of the development ‘project’. Or, differences over institutional mechanisms, policies and programmes towards ‘developing’ countries and managing problems arising from the human and environmental consequences of river basin projects. Although, how these tensions are resolved have a vital bearing on ‘development’, they are viewed as internal matters between ‘developed’ nations inter-se. Federal–State contradictions include jurisdiction and control over water, dams, and project finances, fiscal-financial relations between the federation and the states, indebtedness of the states, the political fall out of ‘development’, demands of agriculture and industry and competition between States for federal projects,

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investments and aid. The federal–State contradictions are addressed within legal and constitutional structures that characterise the state and provide the structural mechanisms within which the contradictions within the two matrixes are played out. The essential character of the contradictions in social relations over water, however, is not different from those under colonisation (Ahmad, 1992; Bhatia, 1963; Bolding, Mollinga, & Straaten, 1995; D’Souza, 2001, 2002, (forthcoming); Rao, 1985, 1988; Sengupta, 1985a,b, 1986; Vani, 1992). Yet, the legal and institutional changes that followed the transformation of capital during and after the World Wars help envision water problems as ‘developmental’ conflicts that are new; and not as colonial conflicts that continue under new conditions. The legal and institutional changes in the post-war era introduced internal schisms in river basin projects, the ‘spatialised global commodities’ by incorporating different dimensions of the commodity into different institutionally autonomous legal regimes. The principles, ideologies, legal theories and practices that inform the different legal regimes are distinct and different. Over time, as all the latent contradictions in the river basin projects unfolded, they became the foci of citizen–state conflicts, federal–State conflicts, North–South tensions within international organisations and aid programs, even as popular movements for social and environmental justice turned against the development paradigm that underpinned the river basin projects. Yet, the framework of international and national law in the post World War II era fetishised the relations between different actors in river basin projects, viz., the UN organs, specialised agencies and institutions, the federal, State and Western governments, the private dam construction and investment corporations. The tensions exacerbated the internal schism in river basin projects. The disparate legal institutions entailed different legal and policy remedies that obscured the interconnected nature of the problems, their genesis in common causal mechanisms and structures and impaired the ways in which change was envisioned. More importantly, it fetishised the democratic implications of the development ‘project’ and the economic implications of popular democracy. Phases of colonialism and the law Historically, imperialism has undergone different phases following the transformation of capitalism from mercantile capitalism under Dutch hegemony to industrial capitalism under British hegemony and finance capitalism under US hegemony. Summarising each phase simplistically, it is possible to say the essential feature of imperialism in the mercantile phase was capital accumulation through unequal trade in products and expropriation of natural wealth of the colonies (Dobb, 1963). Industrial capitalism saw the structural transformation of social production in the colonies to support the capitalist/industrial economies of Western Europe (Alavi, 1975, 1982; Bagchi, 1973; Chandra, 1980; Wallerstein, 1986; Washbrook, 1990). Under finance capitalism, the separation of investment and production

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made possible the maintenance of imperial/neo-colonial relations through economic control from distant geographical places. Each phase developed distinctive legal and institutional structures. They involved internal and external dimensions. During the mercantile phase of capitalism, international law, after the Concert of Europe and through bilateral treaties between European powers regulated rules of navigation, trade and commerce between European nations in distant places including the Indian subcontinent. Internally, British, French, Portuguese and Dutch traders negotiated treaties with native rulers in India that gave them trading and tariff privileges initially but later included rights to collect revenue. That the legal regimes could not contain the rivalries, resistances and social developments that led to transformation of capitalism to the next phase ought not to minimise the role of law in stabilising the regime of mercantile capitalism and allowing for the growth of capitalism to the next phase. The industrial capitalism phase introduced English law to India, the colonial bureaucracy, including the irrigation bureaucracy and state institutions to administer and manage the economy (Coelho, 1973; Dhavan, 1989; Galanter, 1989). Externally, the Treaty of Vienna in 1815 and developments in international law thereafter recognised the colonial ‘possessions’ of European powers inter-se and de-recognised the sovereignty of Indian rulers as equals and developed the rules that defined the Empire system (Anand, 1972; Chimni, 1993). The period beginning before World War I until the end of World War II (roughly 1905–1945) may be seen as a period of transition. During that time, legal and institutional transformation that facilitated the change from imperialism of the industrial capitalism era to imperialism of the finance capitalism era occurred in the colonies. In India, the far-reaching constitutional changes in the jurisdiction and powers over water and important institutional developments occurred during that period. The changes during that time enabled national-political independence to co-exist with economic subordination to international capital in the postwar era. The two dimensions, the internal consisting of domestic law and institutions and external consisting of international law and institutions, constitute two sides of the same historical moment in the transformation of capitalism from one phase to the next. Ideological and policy debates that preceded the transformation and during and after it centred on three types of arguments: political, economic, moral/ethical. Often the arguments were seen as unrelated or mutually exclusive issues, when in fact all three contributed to the specific ways in which imperial–colonial relations were reconstituted in different places (Darby, 1987; Harshe, 1997). Such approaches continue to influence ways in which modern day imperialism is reconstituted. Catch phrases like ‘democratic development’ encompass divergent economic, political and moral/ethical meanings that constitute the weft and warp of the fabric of imperialism in the era of finance capital. The Krishna Award provides insights into the weft and the warp that help sustain river basin projects as ‘spatialised global commodities’ in the context of (neo)colonialism and/or ‘underdevelopment’.

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Democracy and development in the Krishna Award The award The Krishna Award determined interstate conflicts over Krishna waters between the states of Maharashtra, Karnataka (formerly Mysore) and Andhra Pradesh in Southern India. Fig. 2 shows the political boundaries of the three states and the boundaries of the Krishna basin. The disputes arose due to withdrawals and use of water for irrigation, power and domestic consumption from a number of single and multipurpose dam projects that the states had constructed. The projects were

Fig. 2. Political boundaries of the States of the Krishna basin after 1956. Source: Adapted from Kumar (1982).

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undertaken pursuant to development planning under the federal Five Year plans premised on dominant ideas about economic self-reliance and nation building in the post-Independence era. Equally, the development plans were an integral part of the wider development strategies pursued by international multilateral and bilateral development agencies and supported with material, institutional and intellectual resources (Meier, 1984; Meier & Schultz, 1987; Meier, Seers, & Bauer, 1984). The projects in the Krishna basin were continuations and extensions of projects undertaken under colonial rule, especially after wartime exigencies and inter-imperialist rivalries expanded industrialisation of India (D’Souza, 2002, 2001). After Independence, disputes over Krishna waters first came to a flash point in 1951. Eventually, the disputes were referred for adjudication to the specially constituted Tribunal under the Interstate Water Disputes Act 1957 (Inter-State Water Disputes Act, 1956). The Krishna Award was published in 1973 followed by a supplementary award in 1976 and was effective until May 2000 (Krishna Water Disputes Tribunal, 1973a,b,c,d, 1976). Developmental questions before the Tribunal manifested as disputes relating to development planning and water use and allocation premised on dominant ideas about economic development internationally and nationally. Questions about democracy manifested as disputes arising from federalism, the reconstitution of state boundaries and reorganisation of states based on ideas about self-determination and self-governance of different linguistic and ethnic nationalities that comprise India. The disputes juxtaposed conflicting values of ‘development’ and ‘democracy’, their meanings and interpretations and the primacy or otherwise of one over the other. The Tribunal was required to reconcile the principles and values entailed in both ‘development’ and ‘democracy’, by relying on principles of legal interpretation and through recourse to legal processes. The reconciliation enabled the continued expansion of dam projects in the basin, the ‘developmental’ merits of which continue to be debated. ‘Development’ and the disputed agreement of July 1951 The immediate cause for seeking adjudication arose from the State of Karnataka’s (formerly Mysore) frustration with the Planning Commission’s approach to river basin projects as exemplified in the Agreement of 1951. After Independence on 15 August 1947, India adopted a federal democratic republican constitution on 26 January 1950. In July 1951, the Planning Commission convened an interstate conference of five States (as they existed prior to reorganisation of States in 1956): Bombay, Madras, Hyderabad, Mysore and Madhya Pradesh. The meeting was to discuss the utilisation of the waters of the Krishna and Godavari rivers and to decide on projects to be included in the First Five Year Plan (1951–1955) (Krishna Water Disputes Tribunal, 1973a: Chapter IV). In the pre-Independence period, the States of Bombay and Madras had already initiated important schemes that were stalled due to major intervening circumstances: the economic depression, World War II and the intensification of the nationalist movement. After Independence, they applied for continuation of those projects under the First Plan. The First Plan itself was a

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continuation of the post-war reconstruction plans put in place during the Second World War by the Reconstruction Committee in Council (RCC) of the colonial government. The RCC of the war period was reconstituted as the Planning Commission in the post-Independence period in March 1950 (Central Water Commission, 1993). Before Independence, Mysore and Hyderabad were Princely States.6 Both States were integrated into the Union of India in 1949 (Menon, 1956). Those States were not part of the post-war development planning under the RCC. After Independence, the Government of India resumed work on large-scale river basin projects that had been suspended due to the three intervening circumstances (Central Water Commission, 1993; Puttaswamaiah, 1980; Rothermund, 1981, 1981–1982). Mysore did not have projects under construction or consideration in the Krishna basin as most parts of the basin were outside the State at that time and had been invited to the conference only as a party with interest in the waters of the Krishna. Fig. 3 shows the territorial changes in the state of Mysore prior to Independence, postIndependence (1947) and post-reorganisation of states (1956). Members of the Planning Commission, officials from federal ministries, members of the Central Water and Power Commission (CWPC) and the State ministers with their chief engineers attended the conference. Over half a day’s proceedings, the engineers representing the States and the federal ministries allocated the waters of the second largest river between States and between a number of large projects (Krishna Water Disputes Tribunal, 1973a: p. 43). The CWPC based its assessment of water availability on minimal data gathered from discharge observations at a single site in Bezwada (Vijaywada). The demand by States for projects and water allocation was neither rationalised nor explained. At the end of the conference, a memorandum came to be signed that purported to allocate waters of the Krishna among the States for a period of 25 years. The legality of the memorandum, referred to as the Agreement of 1951, was impugned before the Tribunal. Notwithstanding its legal status, the perfunctory nature of the determination of issues fundamental to water allocation, availability and need, is obvious in the Agreement of 1951. International factors existed that could explain the Planning Commission’s perfunctory approach to the Agreement of 1951. In January 1950, the UK, under the new UN umbrella convened a Commonwealth Foreign Ministers Conference in Colombo with the aim of keeping the sterling bloc countries together. The conference finalised the Colombo Plan with the aim of stimulating ‘productive capacity’ of the countries of the South and South East Asia. The initiative was under the ECOSOC. A permanent Consultative Committee of Commonwealth Governments 6

The Princely States were legally autonomous protectorates of Britain outside direct British rule in India and described as ‘indirect’ rule. About two-thirds of the present territory of India was under ‘indirect rule’. After Independence, the Princely States were integrated into the Union of India under a federal constitution.

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Fig. 3. Territorial changes in the State of Karnataka (Mysore). Source: Puttaswamaiah (1980).

was formed to recommend the extent of technical and financial assistance to be given to each country (Khan, 1961). In India, the federal government announced the formation of the Planning Commission on 15 March 1950 and in July 1950 it was called upon, on short notice, to prepare Six Year Plan of economic development to be placed before the Commonwealth Consultative Committee. The Planning Commission did that by

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the end of August 1950 and the plan was later incorporated into the Colombo Plan for Co-operative Economic Development in South and South East Asia. In the First Five Year Plan such projects included infrastructure projects undertaken by the RCC. They included amongst other things, large-scale river valley project such as the Damodar Valley, the Hirakud and Bhakra Nangal. Resources for the Colombo Plan were mobilised from bilateral government assistance, multilateral assistance and from international institutions and private sources. In January 1954, the US agreed to the use of the IMF’s resources for stabilising the sterling convertibility following the Randall Commission on US Foreign Economic Policy recommendations on expansion of world trade. The Colombo Plan came into effect on 1 July 1951 (Khan, 1961). If the Planning Commission wanted to access international capital for the Second Plan (1956–1960) it was vital that projects were identified and investigated quickly. Thus, ideas about ‘development’, the central role of development planning, and the institutional changes required for it in India dovetailed ideas about ‘development’ and development planning in multilateral organisations within the UN and bilateral organisations. The constitutional changes in India dovetailed the changes in international law that saw the incorporation of economic development in the UN charter and the development of the principle of right to development. The Planning Commission members emphasised three issues at the opening session of the interstate conference. First, only projects that had been thoroughly investigated and found to be ‘technically, economically and financially justifiable’, were to be included in the First Plan (Krishna Water Disputes Tribunal, 1973a: p. 41). This criteria favoured areas under direct British rule before Independence. The directly ruled British provinces developed a political economy, law and institutions and scientific and technical organisations that were integrated with the industrial capitalism that developed in Britain. The Princely States had not developed institutions, political or economic, consistent with the metropolitan economy (Baber, 1998: p. 80; Central Board of Irrigation and Power, 1977: p. 90; Central Water Commission, 1986: p. 100; Hettne, 1978: p. 434; Hurd, 1975a: p. 21, b: p. 22; Maheshwari, 1976: p. 485, 1987: p. 118; Menon, 1956: p. 291; Ray, 1988: p. 468; Rukhsana, 1994: p. 60; Sharma, 1967: p. 125). Immediately after Independence the regions under direct rule were better placed to take advantage of the new capital investments that the post-war reconstruction plans and expansion of finance capital brought. The second was the way the Planning Commission defined ‘national interest’ soon after Independence. ‘National interest’ implied effacing regional and local boundaries in the interest of ‘The Nation’ and privileged the international boundary over all others. Regional issues or local interests were viewed as parochial that in ‘national interest’ ought not to influence decisions on water sharing between States. The third point was the flip side of the second and relates to defining ‘development’. Regional development was considered important because some regions were ‘backward’. Generally, the Princely States were less integrated into the modern metropolitan economy and fitted the criteria of ‘backwardness’. Thus, regions were

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conceptualised as purely economic spaces where only development planning could advance the ‘backward’ areas. ‘National interest’ and development of backward areas required proactive federal intervention through planning. The Planning Commission, though an executive agency without constitutional status, acquired a standing that obfuscated division of subjects and powers between federation and States and jurisdiction over water and rivers under the federal constitution. The Agreement of 1951 allocated water based on existing utilisation and new planned projects, thereby continuing the economic lead that the regions under direct colonial rule had. The Planning Commission assumed the States would ratify the 1951 Agreement. However, Mysore refused to ratify the Agreement unless her claim for water was allowed in full. Within one year of the Constitution and two years of the integration of States into a federation, the federal government faced its first major challenge. The Agreement of 1951 is problematic on three counts then: the legality, the method adopted for determining water availability, and its allocation. However, the challenge to the Agreement has wider significance for several reasons. First, it gives an idea of the imperial style of governance that the federal government inherited from the colonial government on transfer of power. Second, it exemplifies the continuity in the visions of ‘development’ in the post-war and post-Independence era. More importantly, in the long term, the States’ resistance and assertion of their constitutional powers within a federation prompted the federal government to pay attention to the procedural aspects of federal governance in a manner the colonial government was never required to. The first (1951–1956), second (1956–1961) and to an extent the third plans (1961–1966) reconstituted India’s economic relations with the West in the post-war period. The first two plans and to a lesser extent the third plan were characterised by large bilateral and multilateral assistance to infrastructure projects. The role of UN agencies, organs, and institutions was to mobilise resources for development planning globally. Consequently, by 1955–1956 India was already the largest debtor to the World Bank (Bhambhri, 1980: p. 52; Khan, 1961: p. 477). In the context of international and federal mobilisation for river basin projects, the intervening movements for linguistic reorganisation of States, an issue that had nothing to do with development planning or with river basin projects had profound implications for the Agreement of 1951, and for sharing Krishna waters. States reorganisation, ‘democracy’ and ‘development’ Colonial rule divided people in the Indian sub-continent arbitrarily based on the euphemistic term ‘administrative convenience’. The freedom movement promised to the people in British India freedom from colonial rule and to the people in the Princely States freedom from autocratic rule, and to all people reorganisation of States based on broad linguistic groups (Government of India, 1955). After Independence, the clamour for reorganisation of States culminated in the States Reorganisation Act 1956. The Act redrew the political boundaries of States in the Krishna basin and created new States with very different political economies. The

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State of Hyderabad was dissolved and integrated with the States of Mysore, Andhra Pradesh and Maharashtra. The Krishna basin regions of Madras State merged with Andhra Pradesh. The territorial changes intertwined with ideas of statehood and self-determination and made States more assertive of their constitutional status. Fig. 4 shows the state boundaries after Independence in 1947 but before States reorganisation in 1956. In the popular conception, federalism was an extension of the democratic principles embodied in the struggle for Independence. It was conceptualised as some-

Fig. 4. State boundaries of the Krishna basin after Independence (1947) and before states reorganisation (1956). Source: Adapted from Ministry of Information and Broadcasting (1950: p. 14).

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thing analogous to ‘sovereignty’ as a concept in international relations. Reorganisation of states on the basis of linguistic groups of population was comparable to ‘self-determination’ with all the associated ideas of devolution of political power, self-governance and autonomy. Jurisdiction over water was a contentious issue in the Constituent Assembly that drafted India’s constitution. In the interests of integrating the Princely States into an Indian federation, it was important that too much power was not taken away from the States. Water was an important resource, especially when agriculture was a State subject. Others saw federal control over water as an important means of continued expansion of metropolitan interests, international and national in water resources in the post-war period (Central Water Commission, 1993; Rao, 1967). The Constituent Assembly retained status quo ante, by continuing intact, the provisions for jurisdiction over water in the pre-Independence constitution of 1935. Briefly, the 1935 reforms devolved jurisdiction over water to the provinces but retained the federal dominance over tax sharing, sources of revenue and fiscal federal–State relations. At the same time, the Act of 1935 provided for mechanisms to resolve interstate disputes over water (Gupta, 1989; Nanda, 1987; Thimmaiah, 1985). The problem of reconciling ideas about ‘democracy’ and devolution of power with economic ‘development’ in relation to water was left unresolved by the Constituent Assembly. It returned with vehemence in the movements for linguistic reorganisation of States where river basin projects became a direct issue in the manner in which State boundaries were demarcated. The terms of reference of the States Reorganisation Commission reporting in 1956 and appointed to study and make recommendations on States reorganisation, directed the Commission to give importance to language and culture of an area in reorganisation of States but to take into account other economic and administrative factors including: . . . changes which interfere with the successful prosecution of such national plan [and] would be harmful to national interest (Government of India, 1955). While affirming language as the basic principle of reorganisation, it introduced four riders of which, ‘successful working of the national plan’ was one (Government of India, 1955). Views about river basin development clearly influenced the Commission’s thinking. Demands for the unmediated affirmation of the linguistic principle on the one hand, and a unified nation-state subordinated to the needs of development on the other formed the spectrum of views before the Commission. Rejecting the view that every State should have access to the headworks of river valley projects which benefit it, or be able to control the catchment area of the river or water in question, the Commission held: The number of instances in which headworks are situated on or near the borders of existing States is so large, and there is so little chance of reducing this number substantially by adopting any scheme of reorganisation other than one based on the unity of river valleys, that multiple control of irrigation and power

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projects cannot be rejected in principle. [. . .] with so many river valley projects being planned or in operation the question of redrawing the state boundaries will become very complicated and [. . .] it is clear to us that where territorial adjustments intended to secure access to head-works or unified control over river valley projects do not come into conflict with other important considerations it will be a clear advantage to make provision for them for the reason that multiplicity of jurisdictions hampers smooth execution of projects and leads very often to unnecessary friction and controversies (Government of India, 1955). (emphasis added). The Commission reiterated the principle that there could not be a single test of either language or culture, contending that a ‘balanced approach’ taking into consideration all these factors was needed. Water conflicts pursuant to the reorganisation of States remained entangled in federal–State wrangling and continued until mid-1960s, when they resurfaced before the Tribunal for adjudication. Issues before the Tribunal: economic equity vs. political rights Before the Tribunal, the States identified six grievances under the States Reorganisation Act 1956 regarding sharing Krishna waters: (i) transfer of Krishna waters outside the basin; (ii) changes to project design post-reorganisation of States that withdrew benefits to areas that fell within new territorial boundaries; (iii) changes to project design extending benefits to a State where new territories were merged with a State; (iv) demands for extension of the benefits of a project in one State to another; (v) extending the scope of a project pursuant to reorganisation of States; (vi) continued supply of power where power stations fell within another State on reorganisation. Sections 107 and 108 of the Act deal with interstate water sharing following from the territorial changes and are based on principles governing international treaties on transboundary water sharing. Essentially, Sections 107 and 108 of the Act provided for maintaining status quo ante with regards to projects completed, commissioned or planned. The Tribunal allocated Krishna waters between the States by applying legal principles of ‘equitable apportionment’ developed in Anglo-American jurisprudence. It did this first by quantifying the waters to determine dependable flow using hydrological data and quantitative methods.7 The Tribunal then evolved criteria for determining ‘equitable apportionment’ and prioritised the uses based on the criteria. Protection of existing uses was deducted from the dependable flow to determine the allocable surplus available for new projects. Projects in operation or under construction before 27/07/51, the date of the disputed agreement were treated as protected use. In September 1960, the Planning commission convened another interstate conference as a last ditch but unsuccessful attempt to iron out the 7

The adequacy or otherwise of the hydrological data and the quantitative methods used is beyond the scope of this paper.

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disputes relating to the 1951 Agreement and the States Reorganisation Act 1956. At the September 1960 conference, Mysore and Maharashtra protested against clearance of any new project and followed up their protests with application for reference of the dispute for adjudication. The Tribunal considered the projects commenced or completed between July 1951 and September 1960 as preferential use to be granted after meeting protected uses. Any utilisation made or proposed after September 1960 was regarded a new use. New uses were permitted only if there was allocable surplus left after meeting protected and preferential uses. The Tribunal determined a hierarchy of uses based on cut off dates that were based on principles of intelligible differentia in law, legal definitions of dispute that include the positive act of assertion of a claim by one party and denial of it by another. The political bases of the claims such as: the legal validity of colonial treaties after Independence and unification of India, the status of federal planning in the constitutional scheme, the jurisdiction of States over water, federal–State fiscal and financial relations, the encroachment by federal planning in the constitutional division of subjects between the federal and State authorities and whether water claims follow territorial changes, were not inquired into. The contentious Agreement of 1951 was declared illegal and all claims arising out of it merged into one of equitable apportionment. Similarly, all claims arising from States Reorganisation Act 1956 were declined and reconceptualised as issues of equity to be resolved on strictly quantitative criteria. Such criteria included: availability of water; efficient utilisation; cost–benefit analysis; preferential uses of irrigation over power generation; and the hierarchy of ‘protected’, ‘preferential’ and ‘new’ uses. In determining these legal questions, the Tribunal could draw on international law developed and expressed in the Helsinki Rules 1966; the UN recommendations and norms developed by the regional organs of the ECOSOC; by the experts in international water organisations such as the WMO and UNESCO supported programmes; and US and European law that sat well with the colonial systems in place. By drawing on international sources of law and scientific and technical conceptions of river basin development, the Tribunal could reframe the question of water sharing as one of economic equity rather than political rights. The Tribunal, through the interpretative process of the law, expanded upon principles developed under colonial law. Colonial law and policy classified water projects as major works and minor works based on revenue to begin with and later included the area serviced by the project as a further criterion for classification (Vani, 1992). Colonial law also differentiated projects as productive or protective based on rainfall. Such classification in turn determined the jurisdiction of State authorities, planning priorities, revenue and water charges and defined state responsibilities or absence of it for repair and maintenance. The Tribunal expanded on these principles by including the water utilisation of the projects as another criterion of classification and treated projects using more than three TMC water as major works; those using between 1 and 3 TMC as medium works; and those using less than one TMC as minor works. The Krishna Award cleared 36 major and 23 medium projects.

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By determining the disputes exclusively on the principles of equitable appropriation, the Tribunal was able to de-historicise and de-spatialise the entitlements to water. At the same time, by reconceptualising the dispute as one of equitable apportionment the Tribunal was able to save the federal structure nationally (at least for the time being), enough to allow ‘development’, an essential dimension of post-war capitalism, to continue. Law and legal processes, by de-historicising and de-spatialising relations/conflicts over water, reconceptualised the nature of the relations/conflicts over water in ways that sustained, reproduced, adapted and entrenched structures of historically constructed colonialism, under post-war capitalism after-Independence.

‘Democratic development’: the national and international strands Histories of Krishna waters: the temporal tension It is possible to write at least three types of histories of the disputes over Krishna waters depending on the disciplinary orientation of the research. One is the legal history of the dispute. In India, this commences from January 1950 when India adopted her Constitution and became a sovereign federal democratic republic. The second is the ‘developmental’ history that can be traced back to 1905 but took more concrete shape after the First World War and the transformations in the world economic order. The third is the colonial history. It can be traced back to the First War of Independence in 1857 when Britain ended the policy of annexation and introduced dual systems of imperial rule: direct rule for the annexed territories and indirect rule for the Princely States. A more holistic reading of the histories of conflicts over Krishna waters reveals that the political history of water conflicts is one of increasing decentralisation and democratisation of control over water. The economic history on the other hand is one of greater centralisation and loss of control to international capital and institutions. Beginning with ‘high’ imperialism of the colonial era in 1857, the trajectories of political developments progress towards devolving power to the Indian people. The States Reorganisation Act of 1956 was the culmination of a process of constitutional reforms that began in 1905. It saw India transformed from a unitary state under colonial rule to a federal democratic constitutional republic. Political controversies over the control and jurisdiction over water reflect this movement towards decentralisation.8 The economic movement in contrast is towards systemic centralisation. During the era of ‘high’ imperialism in the wake of the Industrial Revolution, a variety of indigenous economic and production systems existed in the Indian sub-continent within different types of political entities and institutions. 8

The amendments to the Indian constitution in 1993, that devolved powers on the village councils, is a further step in this direction of political devolution. Water is one of the subjects where further devolution of powers has occurred. However, the more recent changes are not included in the analysis. The focus of this paper is on the Krishna Award of 1976.

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(Bolding, Mollinga, & Straaten, 1995; Rao, 1985, 1988; Sengupta, 1985b, 1986). Since then, the economic movement has been towards progressive centralisation, in other words subordination and integration of the economy to external imperialcapitalist economies. The Constitutional reforms in India between 1905 and 1945 reflected the two strands and echoed through the Independence movement. One set of changes involved creating provincial units dividing power between the Central and Provincial governments. The other involved efforts to integrate the Princely States into an Indian Union under a federal structure. The devolution of powers had two defining characteristics. First, in the division of powers, subjects of importance to the imperial metropolitan economy remained with the Central government, while subjects of local interest and those involving extensive local administration remained with the Provinces. Second, taxing powers, revenue sharing arrangements and special executive powers remained heavily weighted in favour of the Central government. Water was an important subject in the devolution of powers in the constitutional reforms of 1919 and 1935. Despite the transfer of jurisdiction over water in 1935 to the provinces, conceptions of post-war reconstruction, of which development planning and river basin development were important constituents, made extensive federal involvement possible. After Independence, India retained the constitutional framework nearly intact (D’Souza, 2001, 2002). It was against such constitutional history that popular movements arose for reorganisation of States mainly based on language. The international dimension: the spatial tension Post-war reconstruction comprised three components: reconstitution of relations between the Allies and Axis powers, neutralising the ‘socialist’ bloc, and restructuring relations between the colonies and the imperialist powers. In the post-war world, ‘development’ emerged as the key axis around which imperialist relations came to be reconstituted. The development ‘project’ as McMichael (1996) describes it, comprised economic, political and moral/ethical arguments. It mobilised economic, political and ideological resources for imperialism in the post-war world on a global scale. The UN system emerged as the structural umbrella under which US led finance capital could ‘mobilise from the top’ (to borrow a phrase from Bjorn Hettne (1978)) comparable to the Empire ‘system’ that provided the structural umbrella for industrial capitalism under British leadership to ‘mobilise from the top’. The architecture of the UN and its internal structure reflect this. In order to understand ‘mobilisation from the top’, the workings of the UN system and the ways in which US leadership is secured in international affairs within it, three constitutional aspects of the post-war world need mention. The first relates to the UN Charter and the nature of the institutions created under it and their inter-relationships. Broadly speaking, the UN system is built around the General Assembly, the Security Council, and the Specialised Agencies, each with a different constitutional structure. Taking a simplistic view, the Security Council deals with political processes. The Security Council privileges nations with veto-powers over all other nations. Organs like the International Law Commission deal with

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normative aspects of the state system. The Specialised Agencies such as the International Monetary Fund (IMF), the World Bank (WB) and the World Trade Organisation (WTO) (the Bretton Woods organisations) deal with international economic regimes. The General Assembly provides the ‘citizenship’ that other nation-states within its jurisdiction and makes ‘mobilising from the top’ possible. Organs like the ECOSOC provide the space where different branches of the UN system can be brought together. The second constitutional aspect concerns the status of the Specialised Agencies within the United Nations, a feature that has implications for the UN system as a whole, from perspectives of capitalism and imperialism. The constitutions or WB and IMF give five of the largest capitalist nations, as largest subscribers to the capital/fiscal base of the organisations, a dominant position over all other nations/ subscribers of the organisations. The third constitutional aspect concerns the relationship of the US to the United Nations, its organs, the specialised agencies, and the ways in which US domestic law and UN institutional structures are synchronised (Brown, 1992). Historically, the constitutions of two of the most important Specialised Agencies within the UN system, the WB and the IMF, were shaped by the US and the UK, their bilateral relations in the context of Britain’s war debts and their negotiations over the nature of the post-war world order. The constitutions of the WB and IMF synchronise with domestic US laws such as the Bretton Woods Agreement Act 1946. Other constitutional features and state-organs like the National Advisory Council give the US a special status within the Bretton Woods organisations (Brown, 1992; Dormael, 1978; Grabbe, 1991). Other Specialised Agencies such as the UNESCO, WMO, the FAO, deal with science and technology, and generally with the infrastructure and standardisation needs of a global regime. Some of these Specialised Agencies were reconstituted from the League of Nations, others were formed after the UN, but all seek to universalise and integrate globally the dominant ideological and intellectual resources generated in the West. The UN’s Economic and Social Council (ECOSOC) co-ordinates the different constituents of the UN, the nation-states, private and public international organisations, science and technology, addressing infrastructure and standardisation needs of global regimes of capital and reconciling political and economic interests. The special status of the US in the Bretton Woods organisations and in the Security Council secures the leadership role of the US. The special status of the five largest capitalist powers within the Bretton Woods organisations and three allied powers out of the five veto power countries in the Security Council secures their dominance in the constitution of the post-war world order. The institutional underpinnings of the UN thus undermine the philosophical premises of sovereign equality of nation-states on which it is founded. Workings of the three constitutional aspects of UN go to the heart of the legal and institutional aspects of the development ‘project’ of which river basin development has been a major component, internationally and in India.

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Convergence of law, history and geography In the post-war period, development planning emerged as the most important vehicle for river basin development. It was a convergence of three strands in postwar thinking: (i) the international/imperial strand; (ii) the national/statist strand; and (iii) popular/democratic strand. All three strands contributed to the relatively uninterrupted expansion of the development ‘project’ in the post-war period. Development planning was the axis around which: (i) the WB could mobilise capital from private capital markets and co-ordinate bilateral and multilateral development assistance from Western governments; (ii) the IMF could maintain monetary and fiscal conditions required for finance capital to circulate; (iii) the knowledge organisations in the UN could mobilise private interests in different sectors of the economy and industry to generate scientific, technological and intellectual resources in support of development planning and; (iv) together they could concertedly canvass development planning as a main vehicle for the development ‘project’ in developing countries. In turn, the largest capital contributing nations under US leadership could mobilise the UN organs, organisations and agencies in support of development ‘planning’ as the preferred vehicle for the development ‘project’ and influence the ways in which development planning was conceptualised. Within this strand, ideas of development planning were inspired by Keynesian paradigms, capitalism, private property, the supremacy of market regulation, and individual rights and liberties, ideas deeply embedded in European social history (Byres, 1997; Meier and Schultz, 1987; Meier, Seers, & Bauer, 1984; Tinbergen, 1967; United Nations, 1951). In ‘mature’ colonies such as India, ideas of development planning and river basin development emerged under colonial rule during and at the end of the World Wars and before national independence (Chattopadhyay, 1987). The nationalist strand in development planning was premised on assumptions about the character of the state. Strengthened by the political and economic space provided by the decline of Britain as a global power, it saw an interventionist state as a necessary component of a nationalist project that could mediate between international capital and the national capitalists, externally on the one hand, and between the nationalist capitalists and the diverse classes of people in India, internally, on the other. Generally, it was premised upon a view of the state as an instrument of social change, however, that may be interpreted. The state is conceived in ‘voluntarist’ terms as a political entity possessing ‘will’ that could to be exercised for making political choices. Critical approaches to development planning in India seek to understand it in terms of class, capital accumulation, hegemony, productive forces and relations of production (Byres, 1997; Chatterjee, 1994; Singh, 1997). Such views are also premised on what Taylor (1994) calls ‘the container view’ of the state, where the focus is on the internal dynamics within India. The popular strand in development planning related to the aspirations of diverse classes of people of India and the meaning that ideas of freedom and independence had for them. Ideologically inspired by socialism of different varieties, this strand saw an interventionist state as the means to an egalitarian and just social order

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healing the historical wrongs of imperialism and colonialism on the one hand and feudalism and tradition on the other. In that conception, political independence was the first step to economic independence that development planning would bring. Each strand generated its own historiography. Nevertheless, such convergence of ideas created a stable regime for river basin development. The reduction of ‘development’ to economic aspects that were internationally integrated and to political aspects that were nationally bounded fetishised the problematic nature of law and institutions in ‘democratic development’. In the post-war era, ideas of ‘development’ and ‘development planning’ conceptualised river basin development as a set of discrete projects on a river basin. Internationally, the project-centred approach to development enabled multilateral and bilateral institutions to mobilise capital globally and identify projects in national plans for strategic investments. In turn, the project-centred approach arose from the separation of investment from production functions that accompanied the monopolistic and oligarchical nature of capitalist expansion in the post-war period. Commenced during the inter-imperialist rivalries before and during the World Wars, such expansion matured in the (neo) colonies during the period of post-war reconstruction. The ‘project approach’ was central to development planning. It reduced river basin development to a series of discrete projects on a river basin that would bring quantifiable benefits at quantified costs to the area serviced by the project. It enabled federal planning to classify projects into ‘major’, ‘minor’ and ‘medium’. Major projects justified international involvement; medium justified federal involvement and minor could be left to the States. In turn, federal planning enabled international institutions through selective and targeted investments to mobilise the nation for the development ‘project’ internationally. The legal systems introduced first by colonial governments and developed further under the post-war UN system as international law identified each project as an independent legal entity and defined the obligations of the social actors involved in it as contractual obligations in law. This obfuscated the real nature of social relations over water as one that was formed by colonialism historically and ‘underdevelopment’ geographically. In the regulation of rivers, law is often seen as an unproblematic instrument designed to give effect to stated policy goals, ignoring the problematic nature of law in societies with colonial histories. The Krishna Award and the role of the Tribunal in reconciling political ideas of democratic federalism and economic ideas of ‘development’ and development planning need to be understood within the broader historical and geographical context of post-war capitalism. Thus, to sum up, viewing river basin projects as ‘spatialised global commodities’ invites attention to the legal and institutional framework for commodity production. In the context of post-war capitalism and (neo)colonialism, the legal and institutional framework comprise the national and international components of regulation under the UN umbrella. The UN system builds upon the legal and institutional changes introduced historically under direct colonialism. ‘Democratic

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development’ under the overarching UN system becomes a means of reconciling the economic imperialism with political stability where the discourse of ‘decentralisation’ becomes finding a ‘level’ within a hierarchy of institutions, international and national, and not ‘self-determination’, an idea that underpinned national liberation struggles. Contradictions are however inherent in river basin projects as ‘spatialised global commodities’. Nevertheless, the structurally irreconcilable tensions could be managed, at least until now by law and legal processes, as shown by the Krishna Waters Disputes Tribunal and the ways in which the tensions between ‘democracy’ and ‘development’ were played out. For how long the contradictions can continue be managed is a question that history alone can answer.

Acknowledgements The author wishes to thank two anonymous referees whose suggestions have improved this work greatly.

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