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THE ROLE AND RELEVANCE OF THE UN WATERCOURSES CONVENTION
TO THE COUNTRIES OF CENTRAL ASIA AND AFGHANISTAN IN
THE ARAL SEA BASIN
Dinara Ziganshina
Consultant
July 2011
TABLE OF CONTENT
Executive Summary...................................................................................................................................4
1. Introduction.........................................................................................................................................6
2. Transboundary waters of the Aral Sea Basin: Challenges and opportunities.....................................7
2.1. Physical characteristic of the basin..............................................................................................7
2.2. Socioeconomic uses and environmental concerns.......................................................................9
2.3. Conclusion.................................................................................................................................13
3. The law relating to transboundary waters of the Aral Sea Basin......................................................14
3.1. Treaties at sub-regional level.....................................................................................................14
3.2. Treaties at regional and global levels.........................................................................................17
4. Comparative analysis of the UN Watercourses Convention and regional and sub-regional agreements...............................................................................................................................................19
4.1. The relationship of the UN Watercourses Convention with watercourse agreements..............19
4.2. Scope..........................................................................................................................................21
4.3. Substantive norms......................................................................................................................23
4.3.1. Equitable and reasonable utilisation...................................................................................24
4.3.2. No-harm rule.......................................................................................................................26
4.3.3. Protection of international watercourses and their ecosystems..........................................29
4.4. Procedural obligations and joint bodies.....................................................................................32
4.4.1. Cooperation through joint bodies........................................................................................32
4.4.2. Regular information exchange and consultations...............................................................33
4.4.3. Prior notification on planned measures and other related obligations................................37
4.4.4. Continuous monitoring and assessment..............................................................................42
4.4.5. Emergency cooperation......................................................................................................44
4.5. Compliance review and dispute settlement................................................................................47
5. The Aral Sea Basin states opinions towards the UN Watercourses Convention..............................49
5.1. The countries’ participation in the UN Watercourses Convention’s drafting, negotiation, and voting...................................................................................................................................................49
5.2. Perspectives for the UN Watercourses Convention in the region..............................................51
5.3. Misperceptions about the UN Watercourses Convention and the ways to address them..........54
6. Conclusion: The role and relevance of the UN Watercourses Convention in the Aral Sea Basin. . .55
Annex I. Existing treaty law in the Aral Sea Basin.................................................................................59
Annex II. The UN Watercourses Convention and UNECE Conventions and the weaknesses of the existing treaties in the Aral Sea Basin.....................................................................................................61
Annex III. List of interviewed people......................................................................................................63
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List of abbreviations
ASB Aral Sea Basin
ASBP Aral Sea Basin Programme
CARs Central Asian Republics
CAREWIB Central Asia Regional Water Information Base
CIS Commonwealth of Independent States
EIA Environmental Impact Assessment
IFAS International Fund for Saving the Aral Sea
ICWC Interstate Commission for Water Coordination
ICSD Interstate Commission for Sustainable Development
ILC International Law Commission
UN United Nations
UNECE United Nations Economic Commission for Europe
UNESCO United Nations Educational, Scientific and Cultural Organization
USSR Union of Soviet Socialist Republics
WWF World Wildlife Fund
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Executive Summary
The UN Convention on the Law of the Non-navigational Uses of International Watercourses (UN
Watercourses Convention) marks the culmination of a significant effort by the International Law
Commission (ILC), and UN Member States, over a 20-year period to codify and progressively develop
international law relating to transboundary waters - with a view to promoting international peace and
security.1 As part a long-term research programme between the IHP-HELP Centre for Water Law,
Policy and Science (under the auspices of UNESCO), University of Dundee and the World Wildlife
Fund (WWF), the present paper assesses the role and relevance of the Convention in building
cooperation over the Aral Sea Basin (ASB), shared among Afghanistan and five Central Asian
Republics (CARs): Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan, and
Uzbekistan. Of those countries, only Uzbekistan is a party to the Convention, having acceded to the
instrument in 2007. Hence, a key question is whether there are benefits for peaceful and effective
management of the region’s shared waters in more basin states acceding to the UN Watercourses
Convention.
A study shows that the ASB does not suffer from the lack of regulatory endeavours; the existing legal
framework is rather overwhelmed by numerous instruments seeking to govern the countries’ relations
over the use and protection of shared waters. The problem lies in the normative quality of these treaties,
most of which have been adopted with no links to each other, fall short incorporating the contemporary
principles of international water law and best water management practice, and fail to establish a sound
procedural system of transboundary water cooperation. In this context, the UN Watercourses
Convention can make a contribution to improving the legal framework for transboundary water
cooperation in the ASB and assist countries in building and maintaining effective and peaceful
management systems for their shared resources.
First of all, the UN Watercourses Convention helps to increase transparency of international law
by making it ‘more easily accessible and more transparent’ and providing ‘a more reliable
knowledge of the scope of their rights and obligation’.2
1 See preamble of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses, 36 ILM 700 (adopted 21 May 1997, not in force yet) [UN Watercourses Convention]. 2 Y. DINSTEIN, "The Interaction between Customary International Law and Treaties" (2006) 322 Receuil des cours 243, 365.
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Secondly, by joining the Convention, the ASB countries will benefit from new legal norms for
the contracting parties, such as the obligation to protect and preserve freshwater ecosystems and
the fact-finding procedure which did not reach customary status yet.
Further, not only do individual (customary) provisions but also the entire text of the Convention
that was carefully crafted to provide a system of interacting and mutually supporting rules and
procedures provide an additional value to the existing framework in the basin.
In particular, the UN Watercourses Convention can strengthen the substantive and procedural
system of cooperation in the basin, essentially ensuring more precision regarding the rule of
equitable and reasonable use and notification procedure on planned measures, which the sub-
regional agreements seem to subsume under ‘joint management’ and ‘joint consideration’
provisions.
Importantly, the UN Watercourses Convention can serve for the CARs and Afghanistan as a
common platform for the negotiation of future agreements in the ASB and as a background for
interpretation of bilateral treaties and arrangements increasingly emerging in the region.
The UN Watercourses Convention’s entry into force may enhance the collective interest
dimension of the law of international watercourses. Operating at the global scale, the UNWC
extends concerns about shared waters beyond the interests of riparian countries to the broader
interest of the international community in attaining sustainable development and maintaining
peace and security.
Similarly, the UN Watercourses Convention can contribute to enhancing the domestic
dimension of water management in the ASB by requiring changes within the jurisdiction of
individual countries. The domestic application is especially evident in the need for integrated
water resources management, ecosystem protection, and establishing ‘all appropriate measures’
such as relevant legal, administrative, technical and practical mechanisms for the
implementation of the Convention.
The UN Watercourses Convention’s contribution to the peaceful settlement of disputes is
manifested in its sound procedural system and a range of dispute settlement mechanisms,
including an impartial fact-finding commission.
Finally, the UN Watercourses Convention can play an expressive role by signalling the
willingness of those countries that join it to actively deploy the rules and principles of
international law to deal with the pressing water problems.5
1. Introduction
The UN Convention on the Law of the Non-navigational Uses of International Watercourses (UN
Watercourses Convention) marks the culmination of a significant effort by the International Law
Commission (ILC), and UN Member States, over a 20-year period to codify and progressively develop
international law relating to transboundary waters - with a view to promoting international peace and
security.3 Recent studies illustrate that this global water instrument, although not yet in force, has
already had a positive impact on transboundary cooperation between States. A long-term research
programme between the IHP-HELP Centre for Water Law, Policy and Science (under the auspices of
UNESCO), University of Dundee and the World Wildlife Fund (WWF) to examine the role and
relevance of the UN Watercourses Convention alone has documented a series of global and regional
benefits of the UN Watercourses Convention’s entry into force.4 As part of this initiative, the present
paper assesses the role and relevance of the Convention in building cooperation over the Aral Sea
Basin (ASB), shared among Afghanistan and five Central Asian Republics (CARs): Kazakhstan,
the Kyrgyz Republic, Tajikistan, Turkmenistan, and Uzbekistan. Of those countries, only
Uzbekistan is a party to the Convention, having acceded to the instrument in 2007. Hence, a key
question is whether there are benefits for peaceful and effective management of the region’s shared
waters in more basin states acceding to the UN Watercourses Convention.
To address the latter question and provide a context for the analysis, this study starts with an overview
of the ASB, and the challenges and opportunities for building water cooperation in the region. The
identification of existing treaty law in the basin will be followed by its comparative analysis with the
UN Watercourses Convention, taking into account the following criteria scope, substantive norms,
procedural norms and joint bodies, and compliance review and dispute settlement. The subsequent
3 See preamble of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses, 36 ILM 700 (adopted 21 May 1997, not in force yet) [UN Watercourses Convention]. 4 F. LOURES, A. RIEU-CLARKE, and M. VERCAMBRE, "Everything You Need to Know About the UN Watercourses Convention," (Gland: WWF International, 2008); A. RIEU-CLARKE and F. LOURES, "Still Not in Force: Should States Support the 1997 UN Watercourses Convention?" (2009) 18 RECIEL 2, 185; A. RIEU-CLARKE, P. WOUTERS, and F. LOURES, "The Role and Relevance of the UN Convention of the Law and of the Non-Navigational Uses of International Watercourses to the EU and Its Member States" (2008) Thematic and Regional Assessments of the Relevance and Applicability of the UN Watercourses Convention on the Law of the Non-navigational Uses of International Watercourses; A. GARANE, "UN Watercourses Convention: Applicability and Relevance in West Africa" (2007) Thematic and Regional Assessments of the Relevance and Applicability of the UN Watercourses Convention on the Law of the Non-navigational Uses of International Watercourses; D. MALZBENDER and A. EARLE, "The Impact and Implications of the Adoption of the 1997 UN Watercourse Convention for Countries in Southern Africa" (2008) Thematic and Regional Assessments of the Relevance and Applicability of the UN Watercourses Convention on the Law of the Non-navigational Uses of International Watercourses.
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section examines the basin states’ positions vis-à-vis the UN Watercourses Convention during its
drafting, negotiation and voting; ascertains the countries’ current attitudes towards the Convention; and
hypothesizes about the prospects for its widespread ratification in the region. The attitude towards the
Convention will be discerned by tracing policy declarations and outcomes from high-level meetings of
national leaders and high officials, press statements, speeches, and other policy pronouncements. This
is supplemented by the views of the countries’ representatives and experts expressed during an
international conference ‘Towards the 6th World Water Forum – Cooperative Actions for Water
Security’ held on 12-13 May 2011 in Tashkent, Uzbekistan. The study concludes by summarizing the
potential role the Convention can play in assisting the countries of the ASB to address contemporary
water-related challenges in a peaceful manner.
2. Transboundary waters of the Aral Sea Basin: Challenges and opportunities
2.1. Physical characteristic of the basin
The ASB, covering an area of
1,550,000 km2, is the largest basin
in Central Asia.5 It embodies the
entire territory of Tajikistan and
Uzbekistan, the major part of
Turkmenistan (excluding the
Krasnovodsk region), southern part
of Kazakhstan (the Kzyl-Orda and
the South Kazakh regions), three
regions of the Kyrgyz Republic
(Osh, Djalalabad, and Naryn), part
of northern Afghanistan, and north-
eastern Iran.6 The Amudarya and
Syrdarya are the two major rivers
belonging to the basin of the Aral
Sea.
5 CAWATERinfo, ‘Aral Sea Basin’ <http://cawater-info.net/aral/geo_e.htm > accessed 7 April 2011.6 See Ibid. and I. SEVERSKIY et al., Global International Waters Assessment Aral Sea, GIWA Regional Assessment 24 (Kalmar: University of Kalmar on behalf of United Nations Environment Programme, 2005). Given that the portion of Iran in the basin is insignificant, the present study will not address the involvement of Iran in regional water cooperation.
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Figure 1. The boundaries of the Aral Sea region. Source: GIWA RA 24, 2005
The Amudarya is the biggest river in Central Asia in terms of annual water runoff (79.4 km3/year) and
its basin is shared by Afghanistan, the Kyrgyz Republic, Tajikistan, Turkmenistan and Uzbekistan. The
Amudarya River originates in Tajikistan (where 74% of flow is formed), the Kyrgyz Republic (2%),
Afghanistan and Iran (13.9%),7 then forms the border between Afghanistan and Uzbekistan (8.5%),
crosses the territory of Turkmenistan (1.7%) and returns to Uzbekistan where it discharges into the Aral
Sea. It is 2540 km long from the headwaters of the Pyandzh, its main tributary, to the Aral Sea, and has
a catchment area of 309,000 km2. The Pyandzh and Vakhsh are the biggest tributaries of the Amudarya.
Other tributaries include Kafirnigan, Kunduz, Pamir, Surkhandarya and Zeravshan rivers. 8 The flow
regulation in the Amudarya basin is provided by two main reservoirs, namely the Nurek on the Vakhsh
(total capacity 10.5 km3) and the Tuyamuyun on the Amudarya (total capacity 7.3 km3), and a network
of small reservoirs and their associated canals. Given that there are still possibilities for further,
including long-term, flow regulation in the basin, a number of new dams and reservoirs are planned,
the largest of which includes the Rogun on the Vakhsh and the Dashtidjumn on the Pyandzh.
The Syrdarya is the longest river in Central Asia and its basin crosses the territories of Kazakhstan, the
Kyrgyz Republic, Tajikistan and Uzbekistan. The Syrdarya River is formed by the confluence of the
Naryn and Karadarya rivers. About 75.2% of the Syrdarya flow originates in the Kyrgyz Republic. The
river then flows across Uzbekistan and Tajikistan and discharges into the Aral Sea in Kazakhstan.
About 15.2% of the flow of the Syrdarya is formed in Uzbekistan, about 6.9% in Kazakhstan, and
about 2.7% in Tajikistan. The Syrdarya is up to 3019 km long from its main tributary, the Naryn
headwaters, to the Aral Sea, and has a catchment area of 219,000 km2. The other tributaries of the
Syrdarya include Karadarya, Chirchik, Angren and Keles. The flow of the rivers within the Syrdarya
basin is almost completely regulated. Major reservoirs include Toktogul on the Naryn (total capacity
19,500 km3), the Kayrakkum (total capacity 4,160 km3) and the Chardara (total capacity 5,700 km3) on
the Syrdarya, and the Andijan on the Karadarya (total capacity 1,900 km3).
7 Estimates on Afghanistan's contribution to the Amudarya flow vary. Variations in the estimates primarily depend on which parts of Northern Afghanistan and its various sub-basins are considered as part of Amu Darya basin. See M. AHMAD and W. MAHWASH, "Water Resource Development in Northern Afghanistan and Its Implication for Amu Darya Basin," in Working Paper no 36 (Washington, DC: World Bank, 2004) and D. W. RYCROFT and K. WEGERICH, "The Three Blind Spots of Afghanistan: Water Flow, Irrigation Development, and the Impact of Climate Change" (2009) 7 China and Eurasia Forum Quarterly 4, 115.8 Some hydrologists consider the Zeravshan as an independent river, since it lost connections with the Amudarya due to the development of irrigation in the lowland parts of the catchment area. See eg "Our Waters: Joining Hands across Borders. First Assessment of Transboundary Rivers, Lakes and Groundwaters" (New York and Geneva: UN Economic Commission for Europe, 2007) at 72.
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2.2. Socioeconomic uses and environmental concerns
The social and economic development of the CARs and Afghanistan depends on the waters of the
Amudarya and Syrdarya, and there are many competing claims over the use of their waters for
hydropower, irrigation, and the environment.
Water resources are an important source of electricity generation in the Aral Sea Basin countries,
constituting 27.3% of their total electricity consumption.9 Upstream, Tajikistan and the Kyrgyz
Republic cover up to 90% of their domestic energy needs and export electricity to other CARs and
Russia – the latter country imports approximately 10% of the total exports by the two former CARs.10
Tajikistan possesses vast amount of hydropower resources (40GW), of which about 10 per cent (4,326
MW) has been developed.11 The proposed Rogun HPP (3600 MW 13,000 GWh) on the Vakhsh and the
Dashtidjumn HPP (4000 MW 15,600 kWh) on the Pyandzh would increase significantly the
hydropower generation capacity of the country. Hydropower potential of Kyrgyzstan is estimated in
18,500 MW, and its installed capacity is about 2,950 MW.12 Such dominant reliance on hydropower
makes these countries vulnerable to climate change and variability. For instance, low water levels in
hydropower stations in very cold and dry 2007-2008 depressed electricity generation, leaving industries
and households with no access to heating and water supply, which led to severe socioeconomic
consequences in Tajikistan and Kyrgyzstan. In 2009, electricity generation dropped by 18.5% in the
Kyrgyz Republic during the first 11 months of 2008, and by 8% in Tajikistan for the year as a whole. 13
The hydropower situation in Afghanistan, another water tower of the region, is difficult to assess as
years of conflict have left the power grids severely damaged.14
9 S. IBATULLIN, V. YASINSKY, and A. MIRONENKOV, "Impact of Climate Change to Water Resources in Central Asia," in Sector Report No 6 (Almaty: Eurasian Development Bank, 2009) at 7.10 "Central Asian Human Development Report. Bringing Down Barriers: Regional Cooperation for Human Development and Human Security" (Bratislava: UNDP Regional Bureau for Europe and the Commonwealth of Independent States, 2005)at 86.11 ADB, Report and Recommendation of the President to the Board of Directors, Project Number: 42189 ‘Proposed Asian Development Fund Grant Republic of Tajikistan: Nurek 500 kV Switchyard Reconstruction Project’ (October 2008) <www.adb.org/Documents/RRPs/TAJ/42189-TAJ-RRP.pdf> accessed 10 April 2011.12 A. STAMALAEV, "Development of the Renewable Energy Sector in the Kyrgyz Republic (Ministry of Energy of the Kyrgyz Republic)" in International Energy Efficiency Forum and Workshop on Investments in Energy Efficiency and Renewable Energy Projects 28-30 September 2010 Astana, Kazakhstan (2010). See also IBATULLIN, YASINSKY, and MIRONENKOV, supra note Error: Reference source not found at 36 noting that when in the last century the hydropower potential of the two countries was assessed, it was done without taking climate change into account, and therefore now the assessment needs to be revised.13 "Central Asia Regional Risk Assessment: Responding to Water, Energy, and Food Insecurity" (New York: UNDP Regional Bureau for Europe and CIS, 2009) at 6.14 J. GRANIT et al., "Regional Water Intelligence Report Central Asia" (Stockholm: Stockholm International Water Institute 2010).
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Irrigated agriculture accounts for more than 90% of the total water withdrawals in the basin, and plays
a vital role in supporting the economy and livelihoods.15 In 2009, agricultural output supported by
irrigation accounted for 12% of the gross domestic product in Turkmenistan; 20% in Uzbekistan; 22%
in Tajikistan; 29% in the Kyrgyz Republic; and 33% in Afghanistan.16 Although the national economy
of Kazakhstan is less dependent on irrigated agriculture (6%), farming has substantial importance in the
lowlands of the Syrdarya. Ahmad and Mahwash state that, although the Amudarya basin constitutes
only 12% of the Afghan territory, it supports about 25% of the Afghan population.17 An estimated 22
million people depend directly or indirectly on irrigated agriculture in CARs.18 Currently, 60% of
Central Asia’s population lives in rural areas, and almost half of the rural population lives in poverty,
directly or indirectly depending on natural resources to sustain their livelihoods.19 Additionally,
agricultural demand for water in the region is most likely to increase as a result of the expansion of
irrigated lands in Northern Afghanistan – in furtherance of Afghanistan’s 2007 Water Strategy and as
supported by a flow of international investment in the sector.20
Clearly, both hydropower production and irrigated agriculture are crucial for the region. The
difficulties arise, however, in accommodating the different seasonal requirements of these two
dominant water uses. Since the highest demand for electricity occurs in the coldest time, the interests of
hydropower production require the releases of water from upstream reservoirs in winter. Conversely,
irrigated agriculture depends on water releases in the summer months. In the Soviet time, a system of
reservoirs and hydropower stations along the Amudarya and Syrdarya rivers accumulated their flow
during the non-irrigation season and provided reliable water supply for agriculture. Power generation
was secondary to agricultural needs, and fossil fuel alleviated electricity deficits in the upstream
countries. Upon independence, the economic basis of this regional arrangement was undermined. Fossil
15 Ibid. at 15.16 World Bank (2011) <http://data.worldbank.org/> accessed 31 Match 2011.17 at 1.18 "Central Asian Human Development Report. Bringing Down Barriers: Regional Cooperation for Human Development and Human Security," supra note Error: Reference source not found at 86.19 World Bank, ‘Data by country’ (2010) <http://data.worldbank.org> accessed 7 April 2011. 20 W. KLEMM and S. S. SHOBAIR, "The Afghan Part of Amu Darya Basin. Impact of Irrigation in Northern Afghanistan on Water Use in the Amu Darya Basin," (Rome/Kabul: FAO, 2010) at 10 (stating that ‘By 2020, the three planned major irrigation projects would comprise an additionally irrigated area of some 200,000 ha resulting in a total irrigated area in the Afghan part of the Amu Darya Basin (without the Northern Basins whose rivers do not contribute water to the Amu Darya) of approximately 600,000 ha corresponding to an annual maximum of 6,000 million m³ water withdrawn from Panj, Amu Darya itself and the major ‘boundary’ rivers Kokcha and Kunduz.’). See also "Speech by Mr. Nabiel, Ministry of Foreign Affairs, Afghanistan," in UNECE Workshop on transboundary water management in Central Asia (Almaty: UNECE 2010)(stating ‘We had designed ambitious projects for irrigation and hydropower before 1978 – 1979, but the war prevented us to implement them. Now is the time we start implementing some of them and we ask for the understanding and cooperation of our neighbours.’). "Avoiding Water Wars: Water Scarcity and Central Asia's Growing Importance for Stability in Afghanistan and Pakistan. A Majority Staff Report Prepared for the Use of the Committee on Foreign Relations United Nations Senate," (Washington, DC: 112th Congress 1st Session, 2011) at 1 and 13 (stating that in 2009 the Unites States provided approximately $46.8 million in assistance for water-related activities in Afghanistan and Pakistan).
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fuel prices went up, energy trade between the countries was put on a commercial footing, and upstream
countries, poor in fossil fuel, declared their interests in the generation of electricity, and changed the
use of reservoirs from irrigation to hydropower production.
This shift was especially noticeable in the Syrdarya basin where switching the operation of the
Toktogul reservoir from irrigation to electricity production resulted in a substantial change in flow
patterns, with the peak of water releases in winter rather than in summer. As a result, farmers reliant
upon irrigation faced water shortages. What is more, south Kazakhstan and Uzbekistan had to deal with
the threat of their lowlands inundation since the frozen waterways and canals were unable to handle
excessive water releases in winter. Some of the water from winter releases was, therefore, diverted
wastefully into the Arnasai depression.21
In the Amudarya basin, flow regulation issues are shaped by Tajikistan’s plans for building new dams
on the Vakhsh and Pyandzh tributaries. Presently, only seasonal flow regulation is carried out in the
basin, namely by the Nurek and Tuyamuyun reservoirs. If done right and operated accordingly, the
proposed Rogun hydropower project can potentially introduce long-term flow regulation in the interests
of irrigation, hydropower production and water supply.22 However, the project raises concerns as to its
ecological and seismic safety, as well as socioeconomic and cultural impacts across the region.23 The
World Bank Currently is supporting the preparation of an assessment study for the proposed Rogun
HPP to examine its techno-economic, environmental, and social impacts.24
The changes in river flow following the construction of existing reservoirs and the excessive water
withdrawals for irrigation have profoundly affected the quality of water and modified the deltas of the
rivers and floodplain environment. One of the most telling examples of this is the devastating
degradation of the Aral Sea, its ecosystem, and surrounding areas. The Aral Sea, once the world's
fourth-largest lake, today consists only of a series of separate bodies of water surrounded by a vast
21 As for now, the Arnasai is a part of the Aydar Arnasai Lakes System, the largest lake system in the Republic of Uzbekistan. These lakes were formed as a result of emergency dumping of water from the Chardara reservoir in the catastrophically high-water year of 1969 (20.1 km3). See The Aydar Arnasay Lake System (Uzbekistan). Information Sheet on Ramsar Wetlands – 2008 Ramsar Uzbekistan 2UZ002 <http://ramsar.wetlands.org> accessed 7 April 2011. 22 V. A. DUKHOVNY and A. SOROKIN, "Assessment of the Impact of Rogun Reservoir on Amudarya River Water Regime. In Russian" (Tashkent: SIC ICWC, 2007).23 Address by President Islam Karimov at the meeting of heads of the IFAS founding states. Permanent Mission of the Republic of Uzbekistan to the United Nations (28 April 2009) <www.un.int/wcm/content/site/uzbekistan/pid/9548> accessed 7 April 2011. Kazakhstan has recently supported Uzbekistan's position; J Lillis `Uzbekistan: Nazarbayev Makes Diplomatic Trade-Off With Karimov' Eurasia Insight (18 March 2010) <www.eurasianet.org/departments/insightb/articles/eav031810_pr.shtml> accessed 7 April 2011.24 World Bank, ‘Assessment Studies for Proposed Rogun Regional Water Reservoir and Hydropower Project in Tajikistan’ <http://go.worldbank.org/ZQXIA8J0H0> accessed 7 April 2011. It was announced in mid-November 2010 that the Rogun feasibility study tender was won by a consortium comprising France's Coyne et Bellier Consulting Engineers, Italy's Electroconsult, and Great Britain's IPA Energy Water Consulting. <http://en.rian.ru/international_affairs/20101125/161493582.html> accessed 7 April 2010.
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saline desert. Increased water salinity, the degradation of deltas and the decrease of their areas led to a
severe reduction in biodiversity in the region.25 The situation is accompanied by poor water quality as a
result of agricultural discharges, which is especially critical in the lowlands of Kazakhstan,
Turkmenistan, and Uzbekistan, resulting in increased illness (e.g., kidney disease, oncological and
acute infectious diseases), and adult and child mortality rates.26
The shrinkage of the Aral Sea also affected the climate of the region, with both summer and winter
temperatures becoming more extreme. Global climate change exacerbates the situation further. UNEP’s
2005 Global International Waters Assessment forecasts that, by 2050, the glaciers on the mountains of
Central Asia may shrink by 1/3 in area and volume if the current rate of 0.8–1.0% decrease per year
continues. In the 20th century, the glaciers of Tajikistan decreased on average by 20-30%; and the
glaciers of Afghanistan, on the left bank of Pyandzh, by 50-70%.27 Glacial retreat causes flood events
in the short-term, and declines in long-term water availability, thus intensifying the aridity of the
region.28 According to some projections, by 2050, the runoff of the Syrdarya and the Amudarya rivers
may decrease by up to 6-10% and 10-15%, respectively.29 Given that currently the volume of water
resources used already exceeds available supplies,30 further declines in water availability could threaten
the region’s water security profoundly. The intensity of droughts, floods and other extreme events, such
as mudflows and avalanches, is also expected to increase in the region.31 Climate change seems to hit at
stationarity, a foundational concept in hydrology that stands for the idea that natural systems fluctuate
within an unchanging envelope of variability.32 Assuming climatic stationarity, hydrologists could
predict probability distributions arising from historic records. In a new non-stationary world, such
projections are dubious. Consequently, changes in the climatic and hydrological systems will further
affect ecosystems, human health, and economies; intensify the tense competition over water between
25 SEVERSKIY et al., supra note Error: Reference source not found at 30.26 "Environmental Performance Review of Uzbekistan: Second Review" (New York and Geneva: United Nations Economic Commission for Europe, 2010).27 IBATULLIN, YASINSKY, and MIRONENKOV, supra note Error: Reference source not found at 16. 28 Ibid. at 30.29 Ibid. at 28. 30 Due to the use of return waters, the volume of water resources used in the Aral Sea Basin exceeds available supplies; in the Syrdarya Basin 130-150% of available water resources are used and in the Amudarya Basin, 100-110%. See N. KIPSHAKBAEV and V. SOKOLOV, "Water Resources of the Aral Sea Basin-Formation, Distribution, Usage. Water Resources of Central Asia. In Russian" (Tashkent: SIC ICWC, 2002). 31 B. C. BATES et al., eds., Climate Change and Water. Technical Paper of the Intergovernmental Panel on Climate Change (Geneva: IPCC Secretariat, 2008) at 87 and IBATULLIN, YASINSKY, and MIRONENKOV, supra note Error:Reference source not found at 22, 24 and 27.32 P. C. D. MILLY et al., "Stationarity Is Dead: Whither Water Management?" (2008) 319 Science 5863, (arguing that ‘stationarity is dead because substantial anthropogenic change of Earth’s climate is altering the means and extremes of precipitation, evapotranspiration, and rates of discharge of rivers).
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agricultural and hydropower sectors; and challenge traditional water planning and management
techniques.33
Dam safety is another issue occupying a special place in regional water cooperation. While bringing
multiple benefits in terms of seasonal and long-term flow regulation, large dams also bear a significant
potential threat. In the case of natural events and anthropogenic accidents, disastrous effects may occur
across the region. The natural ageing of dams in Central Asia, many of which were built 30 to 40 years
ago, requires close supervision of their technical condition and the execution of proper repair and
rehabilitation work.34 The high seismic activity of the region adds another layer of complication for
dam operations and calls for extra-care in their construction.35 Serious risk, with severe transboundary
implications, comes from the high-mountain Lake Sarez (Tajikistan), with an unsafe natural 567-metre-
high landslide dam, which was formed at the Mugrab River in 1911 as the result of a severe
earthquake.36 A breach of the dam at Lake Sarez could affect up to 6 million people and flood
approximately 52,000 km2 in the territories of Afghanistan, Tajikistan, Turkmenistan and Uzbekistan.37
To complicate the situation further, the ASB is the world’s top-10 polluted areas in terms of uranium
radioactive waste.38 About two million m3 of uranium tailings are located in the upper reaches of the
Syrdarya basin, in 92 toxic waste sites in the Kyrgyz Republic, inherited from the Soviet past. The fact
that these sites are located close to rivers heightens the potential for transboundary impacts and requires
active cooperation between the countries concerned.
2.3. Conclusion
The above overview highlights some of the major water-related challenges facing the countries of the
ASB. The countries’ economies and the livelihoods of their populations depend profoundly on the
availability and quality of the basin’s waters, and are vulnerable to seasonal climate and weather
33 BATES et al., eds., supra note Error: Reference source not found at 87 and 88 (stating that ‘consequences of enhanced snow and glacier melt, as well as rising snow lines, would be unfavourable for downstream agriculture in several countries of south and central Asia’ and ‘changes in runoff could have a significant effect on the power output of hydropower-generating countries such as Tajikistan, which is the third largest hydro-electricity producer in the world’).34 "Dam Safety in Central Asia: Capacity-Building and Regional Cooperation" in Water Series No 5 (Geneva: UN Economic Commission for Europe 2007) at 1.35 "Central Asian Human Development Report. Bringing Down Barriers: Regional Cooperation for Human Development and Human Security", supra note Error: Reference source not found at 116 (stating that ‘The entire southern part of Central Asia lies in one of the world’s most active seismic belts. Severe earthquakes, causing great damage to people and infrastructure, have been common in that region). See also "Disaster Risk Reduction in Central Asia, Building Partnerships to Secure Development Gains" ECHO and UNISDR Newsletter 2009.36 "Sarez Lake: Latest Achievements and Unresolved Problems" 2007; "Usoi Landslide Dam and Lake Sarez: An Assessment of Hazard and Risk in the Pamir Mountains, Tajikistan" (United Nations International Strategy for Disaster Reduction Secretariat, 2000).37 "Dam Safety in Central Asia: Capacity-Building and Regional Cooperation," supra note Error: Reference source notfound at 6.38 GRANIT et al., supra note Error: Reference source not found at 7.
13
conditions. Such dependency has compromised a delicate ecological balance in the region and put
under stress its environmental integrity. It has also aggravated the competition for resources between
sectors, such as irrigated agriculture and hydropower production; and ultimately between upstream and
downstream countries trying to reach energy and food self-sufficiency. A complex web of water,
energy and environmental problems in the region can be addressed in a holistic, mutually beneficial
and peaceful manner only through collaborative actions whether that is cooperation to increase
economic benefits or cooperation to mitigate negative effects.
3. The law relating to transboundary waters of the Aral Sea Basin
The CARs have recognised the need to address these problems in a coordinated way at the top political
level, including by establishing the Aral Sea Basin Programme (ASBP) – a programme of concrete
actions to improve the environmental and socioeconomic condition in the Aral Sea basin and attract
much-needed investment.39 Additionally, in the past two decades, the countries adopted a number of
sub-regional agreements, established new regional institutions, and joined regional and global
environmental and water-related treaties. Some of these legal arrangements are to be traced back to the
pre-independence period; others were adopted in recent decades. A brief overview of these treaties
follows.
3.1. Treaties at sub-regional level
In Soviet times, the use and management of the Amudarya and Syrdarya basins by five CARs was
regulated according to the Schemes of Complex Water Resources Use and Protection, which were
endorsed by the central management of the Ministry of Reclamation and Water Management.40 In
1992, the countries reiterated the validity of those schemes in the Almaty Agreement, which was
adopted by all CARs as newly independent states to manage jointly shared waters.41 In addition, the 39 In 1994, the heads of CARs decided to adopt the Programme of concrete actions for environmental improvement in the Aral Sea basin over the next 3-5 years (ASBP-1) and to approve the main provisions of the strategy for addressing problems of the Priaralie and the Aral Sea basins in light of regional socio-economic development. In 2002 they approved the Programme of concrete actions on environmental and socio-economic improvement in the Aral Sea basin for 2003-2010 (ASBP-2). In 2009, they mandated relevant agencies to develop ASBP-3.40 See Resolution of the Expert Sub-Commission to the Gosplan (State Planning Committee) State Expert Commission of the USSR (12 March 1982); Protocol of the Scientific and Technical Council of the Ministry of Water Resources Management of the USSR on Approval of the Principles of Inter-Republican Water Allocation of the Syrdarya River Basin Resources No 413 (29 February 1984); Protocol of the Scientific and Technical Council of the Ministry of Water Resources Management of the USSR on Approval of the Principles of Inter-Republican Water Allocation of the Amudarya River Basin Resources No 556 (10 September 1987); Decision of the Gosplan State Expert Commission of the USSR No 11 (5 March 1982). 41 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on Cooperation in the Field of Joint Management of the Use and Conservation of Water Resources of Interstate Sources, an unofficial English translation can be found at
14
1993 Kzyl-Orda Agreement, also adopted among all 5 CARs, includes a range of ‘common objectives’
to be pursued to mitigate the Aral Sea crisis.42 The 1999 Agreement on the Status of the International
Fund for Saving the Aral Sea and its organizations, along with the statutes of each particular
organization, further articulate the functions and duties of the regional water institutions established in
the 1992 Almaty Agreement and the 1993 Kzyl-Orda Agreement.43
Other sub-regional agreements to address water-related issues, ranging from specific arrangements on
water and energy trade to general environmental treaties, are:
The 1996 Chardjev Agreement, between Uzbekistan and Turkmenistan, regulates water
management issues, including water allocation in the Amudarya's lower reaches.44
Also in 1996, Kazakhstan, the Kyrgyz Republic and Uzbekistan committed to foster economic
cooperation on the use of fuel and water resources, construction and operation of gas pipelines,
mostly touching the Syrdarya basin.45
Two years later, those same countries concluded a watercourse-specific agreement on the use of the
water and energy resources of the Syrdarya basin, with the aim of producing a cooperative
framework.46 Tajikistan joined the latter agreement in 1999.
Given the close connection between energy and water resources in the region, the 1999 Agreement
on Parallel Operation of the Energy Systems of Central Asian States aims to foster more effective
operation of the energy system towards establishing a regional ‘integral market for electricity’.47
<http://cawater-info.net/library/eng/l/ca_cooperation.pdf> (signed 18 February 1992) [1992 Almaty Agreement]. 42 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on Joint Actions for Addressing the Problems of the Aral Sea and Its Coastal Area, Improving the Environment, and Ensuring the Social and Economic Development of the Aral Sea Region, an official English translation can be found at <http://cawater-info.net/library/eng/l/kzyl-orda_agreement.pdf > (signed 26 March 1993) [1993 Kzyl-Orda Agreement]. 43 The Statute of the IFAS; The Statute of Executive Committee of IFAS of 1997, 1999, 2002 and 2009; the Statute of ICSD of 2000; the Statute of the ICWC of 1992 and 2008; the Statue of BWO Amudarya of 1992; the Statute of BWO Syrdarya of 1992; the Statute of the Secretariat of the ICWC of 1993; the Statute of the Secretariat of the ICSD of 2001, the Statute of the SIC ICWC of 1996, the statute of SIC ICSD of 2001.44 Agreement between Turkmenistan and the Republic of Uzbekistan on Cooperation over Water Management Issues an unofficial English translation can be found at <www.cawater-info.net/library/rus/uzb_tur_1.pdf> (signed 16 January 1996) [1996 Chardjev Agreement]. 45 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic and the Government of the Republic of Uzbekistan on the Use of Fuel and Water Resources, Construction and Operation of Gas Pipelines in Central Asian Region, (signed 5 April 1996) [1996 Agreement on the Use of Fuel and Water Resources, Construction and Operation of Gas Pipelines]. 46 Agreement between the Governments of the Republic of Kazakhstan, the Kyrgyz Republic, and the Republic of Uzbekistan on the Use of Water and Energy Resources of the Syrdarya Basin, an unofficial English translation can be found at <http://cawater-info.net/library/eng/l/syrdarya_water_energy.pdf> (signed 17 March 1998, Tajikistan joined in 1999) [1998 Syrdarya Agreement]. 47 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, the Government of the Republic of Tajikistan and the Government of the Republic of Uzbekistan on the Parallel Operation of the Energy Systems of Central Asian States, an unofficial English translation can be found at
15
Kazakhstan, the Kyrgyz Republic and Uzbekistan also entered into an agreement that regulates
wider environmental issues by stipulating the areas of cooperation in the use and protection of
natural resources.48
In 1999, those 3 countries, plus Tajikistan, adopted a treaty on cooperation in the sphere of
hydrometeorology.49
The 2006 Framework Sustainable Development Convention, signed by the Kyrgyz Republic,
Tajikistan and Turkmenistan, with its entry into force pending, seeks to ensure effective
environmental protection for the sustainable development of Central Asia.50
The above sub-regional agreements define rights and obligations only with respect to the five CARs.
Afghanistan, the riparian country to the Amudarya, is not formally involved in regional water
management. However, the legal basis for such cooperation exists, comprising of relevant customary
and treaty norms. Several agreements were concluded between Afghanistan and Russia (and, later, the
USSR) on frontier matters that touch upon water use issues, including: the 1843 Agreement between
Russia and the Great Britain; the 1887/1985 Protocol on Delimitation; the Exchange of Notes of 11
March 1985 between Great Britain and Russia; the 1921 Treaty of Friendship between Afghanistan and
the Soviet Union; the 1931 Treaty concerning neutrality and non-aggression between the USSR and
Afghanistan;51 the 1946 Frontier Agreement between Afghanistan and the USSR;52 the 1958 Treaty
concerning the regime of the Soviet-Afghan state frontier;53 the 1958 Protocol between the USSR and
Afghanistan on the joint execution of works for the integrated utilization of the water resources in the
frontier section of the Amudarya;54 the 1968 Agreement on economic and technical co-operation during
<www.cawater-info.net/library/eng/l/parallel-agreement.pdf> (signed 17 June 1999) [1999 Agreement on the Parallel Operation of the CARs' Energy System]. 48 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic and the Government of the Republic of Uzbekistan on Cooperation in the Area of Environment and Rational Nature U se, an unofficial English translation can be found at <www.cawater-info.net/library/eng/l/nature_use.pdf> (signed 17 March 1998) [1998 Environmental Cooperation Agreement]. 49 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, the Government of the Republic of Tajikistan and the Government the Republic of Uzbekistan on Cooperation in the Sphere of Hydromet, (signed 17 June 1999) [1999 Agreement on Hydromet]. 50 Framework Convention on Environmental Protection for Sustainable Development in Central Asia (signed 22 November 2006 by the Kyrgyz Republic, Tajikistan and Turkmenistan, not yet in force) [2006 Framework Convention on Sustainable Development in CA]. 51 Treaty between the Union of Soviet Socialist Republics and Afghanistan of Neutrality and Non-Aggression 157 UNTS 371 (signed 24 June 1931) [1931 Soviet-Afghan Treaty on Neutrality]. 52 Frontier Agreement between Afghanistan and the Union of Soviet Socialist Republics (Including Exchange of Notes), 31 UNTS 158 (signed 13 June 1946, entered into force 17 January 1947) [1946 Soviet-Afghan Frontier Agreement]. 53 Treaty between the Government of the Union of Soviet Socialist Republics and the Royal Government of Afghanistan Concerning the Regime of the Soviet-Afghan State Frontier (with Annexes and Protocols), 321 UNTS 166 (1959) (signed 18 January 1958) [1958 Soviet-Afghan Frontier Treaty]. 54 Protocol between the Union of Soviet Socialist Republics and Afghanistan on the Joint Execution of Works for the Integrated Utilization of the Water Resources in the Frontier Section of the Amudarya, <www.cawater-info.net/library/eng/afghanistan_ussr_en.pdf> (signed 25 June 1958) [1958 Soviet-Afghan Protocol on
16
the period 1967-1972;55 and the 1978 Treaty of friendship, good-neighbourliness and cooperation.56
According to the rules of treaty succession, these agreements are still in force to the extent that they
create rights and obligations ‘attaching to’ the parts of the Amudarya basin to which they relate.57
3.2. Treaties at regional and global levels
The 5 CARs cooperate in addressing water-related problems under the umbrella of the Commonwealth
of Independent States (CIS) and the UNECE.
The cooperation under the auspices of CIS is based on its Charter, which, among other things, deals
with environmental issues.58 The 1992 Agreement on Interaction in the Field of Ecology and
Environmental Protection fleshes out the specifics of such cooperation.59 In 1998, the countries adopted
an agreement on informational cooperation in the field of ecology and environmental protection, which
has been ratified by Kazakhstan, the Kyrgyz Republic and Tajikistan.60 At the same date, Belarus, the
Russian Federation, Kazakhstan and Tajikistan signed an agreement on the main principles of
interactions in the field of rational use and protection of the transboundary watercourses of CIS (1998
CIS Transboundary Waters Agreement).61 This agreement refers to the 1966 Helsinki Rules and the
UNECE Convention on the Protection and Use of Transboundary Watercourses and International
Lakes (UNECE Water Convention) and is substantially grounded on the latter's provisions. Among the
CARs, only Tajikistan is a party to the 1998 CIS Transboundary Waters Agreement. Kazakhstan has
Amudarya]. 55 Agreement on Economic and Technical Co-Operation During the Period 1967-1972 (with Annexes), 31 UNTS 124 (1970) (signed 6 February 1968). 56 Treaty of Friendship, Good-Neighbourliness and Co Operation 1145 UNTS 133 (1979) (signed 5 December 1978) [1978 Soviet-Afghan Treaty of Friendship].57 Succession of States does not affect [...] obligations [or...]rights established by a treaty [...] relating to the use of any territory [...] and considered as attached to that territory (article 11) [or] relating to the regime of a boundary (article 12). Vienna Convention on Succession of States in Respect of Treaties, United Nations, Treaty Series, vol. 1946, p. 3 (adopted 23 August 1978, entered into force 6 November 1996) [1978 Vienna Convention on Succession]. See also Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), General List No 92 [1997] ICJ, 37 ILM 162 [1998] at 72, para 123 (where the Court considered that Article 12 reflects a rule of customary law).58 Charter of the Commonwealth of Independent States (adopted 22 June 1993) 34 ILM 1279 (1995).59 Agreement on Interaction in the Field of Ecology and Environmental Protection, (signed 8 February 1992; all CARs are parties) [1992 CIS Agreement on the Environmental Interaction]. 60 Agreement on Informational Cooperation in the Field of Ecology and the Environmental Protection, (11 September 1998; among others ratified by Kazakhstan, the Kyrgyz Republic and Tajikistan) [1998 CIS Agreement on Informational Cooperation]. 61 Agreement between Government of the Republic of Belarus, the Government of the Russian Federation, the Government of the Republic of Kazakhstan and the Government of the Republic of Tajikistan on the Main Principles of Interaction in the Field of Rational Use and Protection of the Transboundary Water Bodies <www.cawater-info.net/library/rus/moscow4.pdf> (adopted 11 September 1998, in force for Belarus, Russian Federation and Tajikistan 6 June 2002), <www.cawater-info.net/library/rus/moscow4.pdf> [1998 CIS Agreement on Transboundary Waters].
17
signed the treaty, although it has not ratified it yet, with a reservation that interactions in the field of
rational use and protection of transboundary watercourses shall be a subject to separate agreements
between parties concerned.
In the early 2000s, the CARs turned towards regional water-related frameworks under the auspices of
the UNECE. In 1999, Turkmenistan was the first among the CARs to join the Aarhus Convention on
access to information, public participation in decision-making and access to justice in environmental
matters.62 This step was followed by Kazakhstan, the Kyrgyz Republic and Tajikistan in 2001. In the
same year, Kazakhstan and the Kyrgyz Republic acceded to the Espoo Convention, which obliges
parties to notify and consult each other on all major projects likely to have a significant adverse
environmental impact across borders.63 In 2004, Tajikistan took formal steps with a view to becoming a
contracting party to the Espoo Convention.64 Also in 2001, Kazakhstan was the first CARs to accede to
the Convention on the transboundary effects of industrial accidents65 and to the UNECE Water
Convention, which aims to prevent, control and reduce transboundary impact.66 Uzbekistan joined the
UNECE Water Convention in 2007. Afghanistan is not a member of the UNECE and, therefore, is not
eligible to participate in these agreements. However, the situation might change if the 2003
Amendment to the UNECE Water Convention comes into force and becomes fully operation, allowing
accession by countries outside the UNECE region.67
In addition, all CARs, plus Afghanistan, are parties to global multilateral environmental treaties
relevant to transboundary waters. These include the Convention on Biological Diversity that promotes
the conservation of biological diversity, the sustainable use of its components, and the fair and
equitable sharing of the benefits arising out of the utilisation of genetic resources;68 the UN Convention
to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa (Convention on Desertification), which aims to combat desertification and
62 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, 38 I.L.M. 517 (1999) (entered into force 30 October 2001) [Aarhus Convention]. 63 UNECE Convention on Environmental Impact Assessment in a Transboundary Context, 30 ILM 800 (1991) (adopted 25 February 1991, entered into force 10 September 1997) [Espoo Convention]. 64 Tajikistan promulgated the Decree of 1287 on Accession to UNECE Convention on environmental impact assessment in a transboundary context on 17 February 2004, but the Depositary of the Convention has not yet received the ratification documents.65 UNECE Convention on the Transboundary Effects of Industrial Accidents, 31 ILM 1330 (1992) (adopted 17 March 1992, entered into force 19 April 2000) [UNECE Convention on Industrial Accidents]. 66 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 31 ILM 1312 (adopted 17 March 1992, in force 6 October 1996) [UNECE Water Convention]. 67 Amendment to Articles 25 and 26 of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, (adopted by decision III/1 of the Meeting of the Parties to the Convention of 28 November 2003, not in force) [Amendment to the UNECE Water Convention]. 68 UN Convention on Biological Diversity, 31 ILM 818 (adopted 5 June 1992, in force 29 December 1993) [Convention on Biodiversity].
18
mitigate the effects of drought through effective actions at all levels;69 and the UN Framework
Convention on Climate Change, which sets an overall framework for intergovernmental efforts to
tackle climate change.70 The 5 CARs also work together under the Convention on Wetlands of
International Importance Especially as Waterfowl Habitat (Ramsar Convention), which provides a
cooperative framework for the conservation of wetland habitats.71
In summary, there is a range of treaties applicable to the transboundary waters of the Aral Sea Basin.
Nevertheless, there is still no watercourse-specific agreement on the Amudarya basin that would cover
the whole basin and involve all riparian countries, including Afghanistan. The 1998 Syrdarya
Agreement includes all riparians but its functional scope is limited to water and energy exchange. The
1992 Almaty Agreement, the only overarching instrument for the ASB, fails to include Afghanistan
and its catchment area into join management framework. The CIS and UNECE agreements have not
been ratified by all basin states. Apart from these shortcomings, it remains to be explored whether these
agreements contain core elements related to a legal regime for the management of transboundary
waters, namely scope, substantive and procedural rules, compliance and dispute settlement
mechanisms. Structured around these elements, the next section will explore similarities and
differences between the existing legal provisions regulating transboundary waters in the ASB and the
UN Watercourses Convention. It will start, however, with addressing the relationship between the
Convention and watercourse agreements.
4. Comparative analysis of the UN Watercourses Convention and regional and sub-regional
agreements
4.1. The relationship of the UN Watercourses Convention with watercourse agreements
The previous section has demonstrated that the legal architecture of transboundary water cooperation in
the ASB is composed of numerous agreements at different levels. The abundance of treaties on the
subject matter raises the question of their relationship with each other. Although most often treaties
complement each other, clarity over their relationship is important in case of conflicting obligations.
69 UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 33 ILM 1328 (adopted 14 October 1994, entered into force 26 December 1996) [Convention on Desertification]. 70 UN Framework Convention on Climate Change, 31 ILM 849 (adopted 9 May 1992, entered into force 21 March 1994) [UNFCCC]. 71 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 996 UNTS 245 (adopted 2 February 1971, entered into force 21 December 1975) [Ramsar Convention].
19
Given its scope, this study confines itself to addressing only the relationship between the UN
Watercourses Convention and the watercourse treaties.
The UN Watercourses Convention – a universal framework instrument – carefully spells out its
relationship with existing and future watercourse agreements. The five main pillars of such relationship
can be derived from Article 3 of the Convention: it enunciates that the UN Watercourses Convention
does not affect the rights and obligations of a watercourse state arising from existing treaties, unless
agreed otherwise.72 This provision sets forth the complimentary and residual role of the Convention,
explicitly stating that if there is a conflict in the provisions of the existing agreements and the UN
Watercourses Convention, the former will prevail. However, the Convention allows watercourse states
to decide, on a case-by-case basis, whether they want to give priority to the UN Watercourses
Convention’s provisions in their relations concerning a particular international watercourse. Referring
to the customary law of treaties, Tanzi points out:
[A]part from the fact that the case-law of the International Court of Justice seems to give
prevalence to the principle of the lex specialis over that of the lex posterior, the fact is that arts.
30 and 59 of the Vienna Convention leave the parties to international treaties free to rule on a
case by case basis the legal effects of such treaties between the parties with respect to pre-
existing or future treaties on the same subject matter.73
The UN Watercourses Convention nonetheless encourages watercourse states to harmonise
watercourse agreements with its basic principles, to avoid conflicts.74 The third pillar relates to the
relationship of the UN Watercourses Convention, as a framework instrument, with future watercourse
agreements: the UN Watercourses Convention may be applied and adjusted to the characteristics and
uses of a particular international watercourse or parts thereof, when watercourse states enter into
watercourse agreements.75 The 1994 ILC Commentary explains, ‘[the UN Watercourses Convention
approach is] that of a framework agreement, which will provide for the States parties the general
principles and rules governing the non-navigational uses of international watercourses, in the absence
72 art 3(1).73 A. TANZI, "The Relationship between the UNECE Water Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the UN Watercourses Convention on the Law of the Non Navigational Uses of International Watercourses," in Report of the UN ECE Task Force on Legal and Administrative Aspec ts (Geneva: UNECE, 2000) at 72. See also Vienna Convention on the Law of Treaties, 8 ILM 679 (adopted 23 May 1969, entered into force 27 January 1980) [1969 Vienna Convention] (Article 30 deals with application of successive treaties relating to the same subject matter and Article 59 regulates termination or suspension of the operation of a treaty implied by conclusion of a later treaty).74 art 3(2).75 Ibid. arts 3(3) and 3(5).
20
of specific agreement among the States concerned, and provide guidelines for the negotiation of future
agreements.’76
With a view to avoiding contradictory obligations, the Convention seems to limit the extent of
deviation from its provisions by using the words ‘apply and adjust’. In this sense, under the 1969
Vienna Convention on the Law of Treaties, the modification of multilateral treaties shall ‘not relate to a
provision, derogation from which is incompatible with the effective execution of the object and
purpose of the treaty as a whole.’77 Finally, Article 3(6) of the UN Watercourses Convention articulates
the general rule that rights and obligations of third states, namely non-participating watercourse states,
shall not be affected by such watercourse agreements.78
4.2. Scope
As was noted above, the substantive scope of sub-regional agreements varies from specific
arrangements for water and energy trade regulation to general environmental issues, with the 1992
Almaty Agreement – the most relevant of them – laying a foundation for the ‘joint management of
interstate water resources use and protection’ in the region. In a complimentary way, the UN
Watercourses Convention seeks to regulate ‘uses of international watercourses and of their waters for
purpose other than navigation and to measures of protection, preservation and management related to
the uses of those watercourses and their waters.’79 The scope of the UN Watercourses Convention is
broader in a sense that includes land-based activities which might affect the protection, preservation
and management related to an international watercourse. Some scholars interpret this provision as
implicitly adopting a drainage basin approach which finds further support in the Convention’s
substantive rules and principles discussed below.80
In terms of the geographical or hydrological extent of the waters covered by each legal regime, the
1992 Almaty Agreement recognises ‘water resources of interstate sources’ as ‘common and integral’
for the region. The current scope of water allocation and regulation under this agreement, as
revalidation of the Soviet rules, covers the main stem of the Pyandzh, Vakhsh, Kafirnigan and
Amudarya rivers in the Amudarya basin, and the main stem of the Syrdarya and Chirchik rivers in the
76 Commentary to the Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, Report of the International Law Commission on the work of its forty-sixth session, [1994] 2(2) Y B Int’l L Comm’n, at 222 [ILC Commentary to 1994 Draft Articles] at 92 para 2.771969 Vienna Convention, supra note Error: Reference source not found, art 41(1)(b)(ii).78 art 3(6).79 Ibid. art 1.80 TANZI, The Relationship between the UNECE Water Convention and the UN Watercourses Convention, supra note Error: Reference source not found at 7 and RIEU-CLARKE, WOUTERS and LOURES, The Role and Relevance of the UN Watercourses Convention to the EU and Its Member States, supra note Error: Reference source not found at 11.
21
Syrdarya basin. The 2006 Framework Sustainable Development Convention, if it enters into force, will
apply the scope of a legal regulation to ‘all territories under national jurisdictions of the Contracting
Parties with special regard to the Aral Sea basin area’ and ‘all kind of activities exercised by the
Contracting Parties within its jurisdiction.’81 Hence, the existing instruments do not extend the scope of
regulation to transboundary groundwater and only partly include freshwater ecosystems, which will be
discussed in more detail below.
In this context, countries would benefit from the UN Watercourses Convention and the UNECE Water
Convention, which reflect contemporary approaches to water use and protection by defining a
hydrological scope based on the concepts of a ‘watercourse’ (or a river system) and an ‘ecosystem’. 82
The UN Watercourses Convention determines the rights and obligations of ‘watercourse states’83 with
respect to a ‘watercourse,’ defined as ‘a system of surface waters and groundwaters constituting by
virtue of their physical relationship a unitary whole and normally flowing into a common terminus.’84
The UNECE Water Convention distinguishes two categories of States – ‘Parties’ and ‘Riparian
Parties’85 – and deals with ‘transboundary waters’ defined as ‘any surface or ground waters which
mark, cross or are located on boundaries between two or more States; wherever transboundary waters
flow directly into the sea, these transboundary waters end at a straight line across their respective
mouths between points on the low-water line of their banks’.86 In addition to the explicit reference to
groundwater and the idea of ‘hydrologic system composed of … rivers, lakes, aquifers, glaciers,
reservoirs and canals’,87 these instruments have a broadened scope that includes provisions related to
freshwater ecosystems. ‘Watercourse ecosystem’ under the UN Watercourses Convention does not
cover areas beyond the watercourse itself,88 whereas UNECE Recommendations include in the
definition of ‘water-related ecosystems’, ‘ecosystems such as forests, wetlands, grasslands, and
agricultural land that play vital roles in the hydrological cycle through the services they provide’.89
81 art 2.82 at 90-91; UNECE Guide to Implementing the Convention Meeting of the Parties to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (5th Sess 10-12 November 2009 Geneva) ECE/Mp.Wat/2009/L.2. [UNECE Guide to Implementing the Convention] at 23 art 1(2).83 “Watercourse State” means a State Party to the present Convention in whose territory part of an international watercourse is situated, or a Party that is a regional economic integration organization, in the territory of one or more of whose Member States part of an international watercourse is situated’ art 2(c).84 “International watercourse” means a watercourse, parts of which are situated in different States.’ Ibid. arts 2(a) and 2(b).85 "Party" means, unless the text otherwise indicates, a Contracting Party to this Convention’ and "Riparian Parties" means the Parties bordering the same transboundary waters’ 86 Ibid. art 1(1).87 See eg at 90.88 The ILC commentary to 1994 Draft Articles refers to ‘ecosystem’ as ‘an ecological unit consisting of living and non-living components that are interdependent and function as a community. Ibid, at 118-119.89 Recommendations for payments for ecosystem services in Integrated Water Resources Management. (ECE/MP.WAT/22; United Nations, 2007) <www.unece.org/env/water/publications/pub74.htm> accessed 9 April 2011.
22
Concerning legal actors eligible to participate in the utilisation of the resource, the existing basin
agreements define rights and obligations only with respect to the five CARs. Afghanistan, a riparian
country to the Amudarya basin, is not formally involved in regional water management, although any
significant water resources development on the territory of Afghanistan can potentially affect
downstream use. The 1987 Protocol of the Scientific and Technical Council of the Ministry of
Melioration and Water Management of USSR, which established still valid water distribution limits for
the Amudarya basin, deducted Afghanistan’s estimated water withdrawal (2.1 bcm) from the river’s
flow to estimate water availability for allocation purposes among the five CARs. Clearly, the absence
of a new treaty between all riparian countries does not preclude them from using the waters of an
international watercourse90 as long as this use in conformity with the rules of customary law and other
international legal commitments. Nevertheless, the UN Watercourses Convention is useful in
promoting a basin-wide approach to the management of international watercourses. Article 4(1) of the
UN Watercourses Convention entitles each watercourse state ‘to participate in the negotiation of and to
become a party to any watercourse agreement that applies to the entire international watercourse, as
well as to participate in any relevant consultations.’ It also provides that ‘a watercourse State whose use
of an international watercourse may be affected to a significant extent by the implementation of a
proposed watercourse agreement that applies only to a part of the watercourse or to a particular project,
programme or use is entitled to participate in consultations on such an agreement and, where
appropriate, in the negotiation thereof in good faith with a view to becoming a party thereto, to the
extent that its use is thereby affected.’91
4.3. Substantive norms
There are 2 substantive norms considered to be the basic principles of international water law: the
principle of equitable and reasonable use and the no-harm rule. Emerging as specific applications of
those principles are procedures and obligations related to the sustainable and optimal management, use
and protection of international watercourses and their ecosystems.
4.3.1. Equitable and reasonable utilisation
The rule of equitable and reasonable use is broadly recognized as ‘a general rule of law for the
determination of the rights and obligations of States’ with respect to international watercourses.92 The 90 ‘…watercourse States are not under an obligation to conclude an agreement before using the waters of international watercourse. To require conclusion of an agreement as a pre-condition of use would be to afford watercourse States the power to veto a use by other watercourse States of the waters of international waters by simply refusing to reach agreement… Nor does it find support in State practice or international judicial decisions (indeed, the Lake Lanoux arbitral award negates it). See at 94 para 17.91 art 4(2).92 at 98.
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aforementioned agreements applicable to the Aral Sea basin contain no explicit provisions on equitable
and reasonable use. Some preambular recitals in such treaties vaguely refer to ‘adherence to the
principle of international water law;’93 ‘established international practice;’94 ‘equitable solution in
utilisation of water and energy resources… in accordance with norms of international law;’95 and
‘solving the issues of joint management of water resources on the basis of common regional principles
and equitable regulation of their consumption.’96
Those statements fall short of specifying either what the equitable and reasonable use rule implies in
general or what it would require in the context of the ASB. For example, the 1992 Almaty Agreement
validates the Soviet Schemes for Complex Water Resources Use and Protections97 that provide for
detailed regulations on water allocation (percentage) and use between the CARs. However, neither the
1992 Agreement nor the Schemes navigate cases when the ‘equity’ of these norms is questioned.98
In contrast, the UN Watercourses Convention presents the rule of equitable and reasonable use as being
responsive to the necessities of time and place, and as providing a flexible all-encompassing approach
to reconciling a broad range of existing and new economic, social and environmental issues – which
ultimately provides for a legal framework for such discussions and, if necessary, adjustments.99
Therefore, it would be inaccurate to assume that the UN Watercourses Convention ‘protects the first
developer [in the basin] from the start’ or ‘freeze[s] power relations that prevailed at a particular time
period.’100
Article 5 of the UN Watercourses Convention codifies this fundamental customary rule of international
water law, stating that watercourse states ‘shall in their respective territories utilize an international
watercourse in an equitable and reasonable manner’101 and ‘shall participate in the use, development
93
94 95 1998 Syrdarya Agreement, supra note Error: Reference source not found.96 preamble.97 Separate schemes for two principal river basins - the Scheme of Complex Water Resources Use and Protection for the Amudarya River and the Scheme of Complex Water Resources Use and Protection for the Syrdarya River – provide detailed provisions for water allocation, use, management and protection.98 Concerns were raised by some countries’ representatives that the agreement favours a status quo that does not take into account current political, economic and social circumstances and the new national interests of the states. See ADB TA 6163-REG: Improved Management of Shared Water Resources in Central Asia. Findings of the CARs reports on the effectiveness of existing basin agreements from the standpoint of national interests prepared by the national working groups (2005), online: CaWaterInfo <http://cawater-info.net/reta/documents/index_e.htm>; Cf D. KEMELOVA and G. ZHALKUBAEV, "Water, Conflict, and Regional Security in Central Asia Revisited" (2003) 11 New York University Environmental Law Journal 479.99 art 6(2). 100 K.WEGERICH and O. OLSSON, “Late Developers and the unequity of ‘equitable utilization’ and the harm of ‘do not harm”, (2010) 35(6) Water International 707, at 709 and 714.101 art 5(1).
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and protection of an international watercourse in an equitable and reasonable manner.’102 Article 6
provides a non-exhaustive list of factors and circumstances that should be taken into account in an
objective manner in order to determine ‘equitable and reasonable utilisation.’ These include:
(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;
(b) The social and economic needs of the watercourse States concerned;
(c) The population dependent on the watercourse in each watercourse State;
(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;
(e) Existing and potential uses of the watercourse;
(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;
(g) The availability of alternatives, of comparable value, to a particular planned or existing use.103
Although historically the formula of equitable and reasonable use has been developed as a basis for
water allocation, the rule also embraces the issues of water quality and ecosystem considerations.
Article 5(1) of the UN Watercourses Convention clearly requires that ‘an international watercourse
shall be used and developed […] with a view to attaining optimal and sustainable utilization
thereof.’ The UNECE Water Convention adds to this development. Article 2(2)(c) provides that
‘[t]he Parties shall […] take all appropriate measures […] to ensure that transboundary waters are
used in a reasonable and equitable way, taking into particular account their transboundary character,
in the case of activities which cause or are likely to cause transboundary impact.’ The Guide to
Implementing the Convention points out,
Article 2(2)(c) should be read in conjunction with article 2(5)(c), according to which ‘water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs’. This is fully in line with the contemporary developments of international customary water law according to which the principle of equitable use incorporates that of sustainable development. That is to say that a use of an international water body may not be considered as equitable, therefore legal, if it is not sustainable.104
102 Ibid., art 5(2).103 Ibid., art 6. 104 at 33 para 102. See also Gabčíkovo-Nagymaros Case, Case Concerning Pulp Mills on the River Uruguay (Argentina V Uruguay) ICJ General List No 135 (2010) <http://www.icj-cij.org/docket/files/135/15877.pdf> [Pulp Mills Case], O. MCINTYRE, "The Proceduralisation and Growing Maturity of International Water Law. Case Concerning Pulp Mills on the River Uruguay (Argentina V Uruguay), International Court of Justice, 20 April 2010" (2010) 22 Journal of Environmental Law 3, 475.
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Finally, as 2006 UNDP’s Human Development Report puts it, the UN Watercourses Convention ‘set[s]
out principles central to human development’ and ‘provides a framework for putting people at the
centre of transboundary water governance.’105 It does so inter alia by requiring ‘special regard’ to be
given to ‘the requirements of vital human needs’ in weighting and balancing various factors and
circumstances relevant to equitable and reasonable use.106
The UN Watercourses Convention may also be useful in regulating the relations between the CARs and
Afghanistan, since the provisions of the existing treaties on Afghanistan’s water use are rather limited.
For example, the 1946 Afghan-Soviet Frontier Agreement only goes as far as to govern the utilisation
of the waters of the river Kushka and the construction of a dam on the river Murghab.107 The 1958
Treaty states that ‘[q]uestions concerning the use of waters that are connected with frontier waters shall
be governed by special agreements between the Contracting Parties.’108 – agreements that have yet to be
negotiated and adopted.
4.3.2. No-harm rule
Another fundamental substantive norm applicable to international watercourses is the no-harm rule,
which derives its normative foundation from sic utere tuo ut alienum non laedas, or the good
neighbourliness principle.109
In the ASB, Article 3 of the 1992 Almaty Agreement requires parties ‘to prevent actions on its territory
which can infringe on the interests of the other Parties and cause damage to them, lead to deviation
from agreed values of water discharges and pollution of water sources.’ According to this provision’s
clear-cut formulation, its addressees must take all measures needed to ensure that no transboundary
harm originates from their respective territories. Moreover, the article does not touch the threshold of
105 "Human Development Report 2006. Beyond Scarcity: Power, Poverty and the Global Water Crisis ", (New York: United Nations Development Programme, 2006) at 218. 106 art 10.107 1946 Soviet-Afghan Frontier Agreement, supra note Error: Reference source not found, Note III released Afghanistan from prohibition to use water from the river Kushka north of Chihil Dukter but provided that it ‘shall not increase the quality of water taken from the river Kushka in this area and shall observe the status quo in this respect.’ The Agreement is also endorsed the Soviet Government’s waiver to construct a dam on the river Murghab and to utilize the Afghan bank of the river for this purpose, on condition that the Afghans, too, would forego construction of such a dam on their territory ‘as would diminish the flow of water from this river on to Soviet territory.’108 art 16. 109 S. C. McCAFFREY, The Law of International Watercourses - Non-Navigational Uses (Oxford: Oxford University Press, 2001); A. TANZI and M. ARCARI, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing, ed. Patricia Wouters & Sergei Vinogradov, International and National Water Law and Policy Series (The Hague: Kluwer Law International 2001).
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harm that must be prevented,110 such as ‘significant’111, ‘appreciable’,112 ‘substantial’113 or ‘serious.’114
Read in line with the title and preambular provisions of the agreement, this provision clearly limits the
unilateral actions of the states within their jurisdiction unless any possibly harmful activity is
coordinated and concerted among the parties.115
Apart from the Almaty Agreement, the 1998 Environmental Cooperation Agreement requires
Kazakhstan, the Kyrgyz Republic and Uzbekistan to cooperate and ‘coordinate their actions in building
new facilities in frontier areas or in any areas that might have adverse transboundary impact’116, ‘with a
view to attaining practical results.’117 Finally, Article 9(3)(e) of the 2006 Sustainable Development
Convention encourages states to set up rules and procedures concerning measures to be taken to
prevent and reduce water pollution to a level that does not harm the territories of downstream countries.
Treaties with Afghanistan also require the avoidance of harm arising from the use of frontier rivers.
The 1958 Soviet-Afghan Frontier Treaty states: ‘[t]he location and direction of frontier watercourses
shall as far as possible be preserved unchanged;’ ‘[n]either Contracting Party shall cause an artificial
displacement of river beds;’ ‘[m]ineral deposits in the immediate vicinity of the frontier line shall be so
prospected or worked and agricultural operations so conducted as not to harm the territory of the other
Party.’118 More to the point, Article 19 states that the parties shall reach an agreement before
introducing any changes that may influence the flow of water or cause other damages. Specifically,
110 As McCaffrey points out, ‘the function of the threshold of harm would seem to be to indicate the point at which a riparian state, believing it has suffered harm as a result of the conduct of another riparian state, may raise the matter with that other state, with a legitimate expectation that the other state will respond in an appropriate way’ and ‘the threshold is not one of prohibited harm’ but ‘a level of harm that is low enough to trigger discussions before serious damage is done, and high enough so that consultations are not required over merely trivial harm.’ McCAFFREY, supra note Error:Reference source not found, at 433, 435. 111 art 7.112 Art 7 of the draft articles adopted on first reading by the ILC in 1991, Draft Articles on the Law of Non-Navigational Uses of International Watercourses, Report of the ILC on the Work of Its Forty-Third Session, U.N. GAOR, 46th Sess., Supp. (No. 10), UN Doc. A/46/10 (1991), reprinted in [1991] 2(2) Y.B. Int’l L. Comm’n 1, at 66, [ILC Report on 1991 Draft Articles] 67.113 Helsinki Rules on the Uses of the Water of International Rivers (International Law Association, Helsinki 1966), reprinted in S Bogdanovic, International Law of Water Resources: Contribution of the International Law Association (1954-2000) (Kluwer Law International, The Hague 2001) [1966 Helsinki Rules], [1966 Helsinki Rules] art X.114 P. SANDS, "Water and International Law: Science and Evidence in International Litigation" (2010) 22 Environmental Law and Management 151, Declaration of the UN Conference on Environment and Development (Rio De Janeiro, 13 June 1992) in Report of the United Nations Conference on Environment and Development, Annex I, UN Doc A/Conf.151/26 (Vol. I) reprinted in 31 ILM 876 (1992)[Rio Declaration].115 The title and preamble of the 1992 Almaty Agreement, supra note Error: Reference source not found, reflect its spirit of ‘joint management’ and ‘consolidation and coordination of actions.’ See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 8 ILM 679 art 31(3)(c). 116 art 2.117 Ibid., preamble.118 arts 9(1), 9(3) and 24(2).
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1. Existing bridges, dams, dikes and other similar structures on frontier watercourses shall be preserved and may be used.
2. Bridges, dams and other similar structures likely to hinder navigation or influence the flow of water shall not be erected on frontier watercourses except by agreement between the two Parties.
3. New dikes which might affect the flow of water and the state of the banks, and also cause damage thereto, may not be erected on frontier watercourses except by agreement between the two Parties.
4. Should the need arise for reconstruction or demolition of any installations on frontier rivers that might change the water level of those rivers, the necessary work may not be undertaken without the consent of the other Party.119
Under the auspices of the CIS, Article 2 of the 1998 CIS Agreement on Transboundary Waters requires
parties to ‘refrain from water management activities that may cause negative impact on environment,
including water bodies;’ ‘take measures in order to prevent and eliminate surface and groundwater
pollution and depletion;’ and ‘estimate damages caused to water bodies by uses in a neighboring state
according to a unified methodology.’120 As per the preambular recitals of the 1992 CIS Agreement on
the Environmental Interaction, ‘economical and other activities within the territory of a state shall not
cause harm to the environment, the quality of life and economic activities in other states.’121
Thus, the existing treaty law in the ASB incorporates the no-harm rule in a way imposing significant
restrictions on the activities within the territories of states unless these actions coordinated with the
affected parties. Hence, by committing to the UN Watercourses Convention, the CARs will not be
under any stricter requirements than arise for them from the existing treaties. Under the UNWC states
are not under an absolute obligation to guarantee that no significant transboundary harm occurs. Rather,
states are required to ‘take all appropriate measures to prevent the causing of significant harm to other
watercourse States.’122 In a similar fashion, Article 2(1) of the UNECE Water Convention provides that
‘[t]he Parties shall take all appropriate measures to prevent, control and reduce any transboundary
impact.’123 At the same time, the UNWC can introduce more clarity in the legal relationship between
the no-harm obligation and the equitable and reasonable use rule,124 which is lacking in the existing
119 Ibid. art 19.120 art 2.121 preamble.122 art 7(1) envisages the no-harm rule, providing that “[w]atercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.” The ILC commentary to Article 7 explains that “[t]he obligation of due diligence contained in article 7 […] is an obligation of conduct, not an obligation of result”. at 103 para 4.123 See also art 2(1). 124 art 7(2) has subordinated the principle of significant harm to the principle of equitable and reasonable utilisation.
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applicable legal framework, and help to decipher the requirement of ‘consolidation and coordination of
action’ essentially through its procedural system discussed below.
4.3.3. Protection of international watercourses and their ecosystems
The ASB agreements explicitly recognize the Aral Sea itself and its deltas as a legitimate water user.
Article 1 of the 1993 Kzyl-Orda Agreement states that a ‘common objective’ of the CARs is to ensure
that water flows to the Aral Sea in order to ‘sustain[…] its lowered but stable, ecologically acceptable,
levels and by this means preserve[…] the Sea as an object of nature[…].’125 Moreover, a 1988 Decree
of the Council of Ministers of the USSR established the requirements of minimum flows to the deltas
of the Amudarya and Syrdarya basins and to the Aral Sea.126
In terms of additional ecosystem-related obligations, Article 3 of the 1993 Kzyl-Orda Agreement
stipulates that “common objectives relating to the protection of the environment include the
maintenance of appropriate water quality, restoration of degraded ecosystems in the region, and the
development and implementation of a coordinated strategy for social and economic development that
meets environmental security objectives for peoples of the region.” Despite its positive intentions, the
1993 Kzyl-Orda Agreement’s provisions seem to be expressed in rather hortatory terms or as overall
goals rather than as precisely defined obligations. Nonetheless, these can be viewed as programmatic
obligations when read together with the title of the agreement (‘On Joint Actions to Resolve the
Problems…’).127
According to the 1998 Environmental Cooperation Agreement, the parties shall cooperate on a wide
range of environmental protection areas, including transboundary water resources conservation,
rational use and pollution prevention.128
125 art 1.126 A 1988 Decree of the Council of Ministers of the USSR on Measures for Radical Improvement of Ecological and Sanitary Situation in the Region of the Aral Sea, Enhancing the Efficiency and Use to Strengthen the Protection of the Water and Land Resources in its Basin. According to the Decree minimum inflows to the deltas of the Amudarya and Syrdarya and to the Aral Sea (including drainage waters) are as follows: 8.7 km3 in 1990; 11 km3 in 1995; 15 km3 in 2000; and 20 km3 by 2005.127 See C. G. WEERAMANTRY, Universalising International Law (Leiden/Boston: Martinus Nijhoff Publishers, 2004) at 21 observing that ‘The Treaty brought into existence a certain regime which results from all of its provisions in conjunction. It forms a complete whole, the different provisions of which cannot be dissociated from others and considered apart by themselves.’ 128 art 2.
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The 2006 Framework Convention on Sustainable Development requires parties ‘to ensure effective
environmental protection for sustainable development in Central Asia, including […] reduction and
prevention of transboundary harm to the environment.’129
The 1958 Treaty between USSR and Afghanistan requires the competent authorities of both
Contracting Parties to ‘take the necessary measures to protect the frontier waters from pollution by
acids and waste products and from fouling by any other means.’130 It further prohibits the nationals of
the Counteracting Parties to fish in frontier waters using ‘explosive, poisonous or narcotic substances
that result in the destruction or mutilation of fish.’131
Under the Commonwealth umbrella, the 1992 CIS Agreement on the Environmental Interaction, ‘based
on an understanding of the integrity and indivisibility of the environment,’132 stipulates that ‘the
Contracting Parties within their territories shall establish science-based norms for the inclusion of
natural resources in economic and other activities and shall limit their irretrievable [consumptive]
withdrawals, taking into account the need to ensure a universal ecological security and wellbeing.’133
The terms of the 1998 CIS Agreement on Transboundary Waters require more engagement from the
parties to achieve the objectives of environmental protection. The instrument stipulates a set of general
substantive and procedural measures for cooperation over ‘the protection of water bodies’ referred to as
‘an activity or a set of measures aimed at conservation and restoration of water bodies, including
remedial measures for water pollution, clogging and depletion, negative economic intervention into
water regime of rivers, water body and groundwater source.’134 Among such measures, ‘the Parties are
obliged to refrain from water management activities that may cause negative impact on the
environment, including water bodies’ and ‘to take measures in order to prevent and eliminate surface
and ground water pollution and depletion.’135
The value of the UN Watercourses Convention with respect to the environmental protection lies in
incorporating the environmental factor into ‘virtually all provisions of the convention.’136 Tanzi
considers that the concept of sustainability has played an essential role in reconciling ‘the long-standing
conflict between the ‘equitable and reasonable utilization’ and the ‘no-harm’ doctrines with respect to
129 art 3.130 art 13.131 Ibid. art 22(1)(a).132 preamble.133 Ibid., art 2. 134 1998 CIS art 1. 135 Ibid., art 2.136 TANZI and ARCARI, The UN Convention on the Law of International Watercourses, supra note Error: Referencesource not found, 225.
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which [it] appears to be the lowest common denominator.’137 What is more, the Convention sets forth a
separate obligation to protect and preserve the ecosystems of international watercourses in Article 20
which ultimately can serve as a basis for the implementation of equitable and reasonable use.138
Because this obligation has probably not yet become a customary norm of international law, by joining
the UN Watercourses Convention, the CARs and Afghanistan may not only strengthen the legal
framework for the protection of freshwater ecosystems within their shared basins but also contribute to
strengthening the law of international watercourses in general.
In a similar fashion, the UNECE Water Convention furthers the protection of international
watercourses by establishing sound rules for the Parties to ‘take all appropriate measures’ in order ‘to
ensure that transboundary waters are used with the aim of ecologically sound and rational water
management, conservation of water resources and environmental protection’; ‘to ensure conservation
and, where necessary, restoration of ecosystems;’139 and providing a definition of ‘transboundary
impact’ that encompasses environmental considerations.140 The Convention stipulates that principles
such as the precautionary principle, the polluter-pays principle, intergenerational equity141 shall guide
the Parties in implementation of the above measures, and it calls for measures to promote sustainable
water-resources management, including the application of the ecosystem approach.142 Article 3 requires
the development of limits on pollution discharges based on ‘best available technology’ or ‘best
environmental practices.’ The Riparian Parties shall cooperate ‘in order to develop harmonized
policies, programmes and strategies [...] aimed at the protection of the environment of transboundary
waters.’143 The Convention’s annexes specify the content of the due diligence requirement to protect the
environment by defining the term ‘best available technology’ (Annex I), and providing guidelines for
developing best environmental practices (Annex II) and water-quality objectives and criteria (Annex
III).
4.4. Procedural obligations and joint bodies
Procedural cooperation between states and through joint bodies is an important means of giving
concrete content to the stated obligations and ensuring that these are consistently implemented and
complied with. Procedural rules and strategies of cooperation over transboundary waters may relate to
137 A. TANZI, "Reducing the Gap between International Water Law and Human Rights Law: The UNECE Protocol on Water and Health" (2010) 12 International Community Law Review 267 at 270.138 McCAFFREY, The Law of International Watercourses - Non-Navigational Uses, supra note Error: Reference source notfound, 386.139 art 2(2).140 Ibid., art 1(2).141 Ibid., art 2(5).142 Ibid., art 3(1)(i).143 Ibid., art 2(6).
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the establishment of joint bodies, the exchange of information among riparian states, interstate
consultations, notification about proposed activities, impact assessments and monitoring, and responses
to emergency situations.
4.4.1. Cooperation through joint bodies
It is widely recognised that transboundary water management is most effectively accomplished through
joint bodies established by the states concerned.144 Treaties specific to the ASB envisage the need for
joint bodies in strong language. The 1992 Almaty Agreement established the Interstate Commission for
Water Coordination (ICWC) in Central Asia as a body responsible for water management policy in the
region145 and subordinated to it two basin water organisations for the Amudarya and the Syrdarya.146
The ICWC is formed of the heads of water management authorities from the five CARs who meet on a
quarterly basis to decide on water allocation and other issues. The institutional framework of the ICWC
and its executive bodies offers also a forum for information exchange, capacity building, and
conducting and coordinating research and pilot projects. As a matter of institutional improvement, the
1993 Kzyl-Orda treaty placed the ICWC under the newly-established Interstate Council on the Aral Sea
(ICAS).147 In 1997, the ICAS was transformed into the International Fund for Saving the Aral Sea
(IFAS)148 and its status was stipulated in a separate agreement.149 In addition to the ICWC, the
organizational structure of the IFAS includes the Interstate Commission for Sustainable Development
(ICSD) that seeks ‘to coordinate and manage regional cooperation in the field of environment and
sustainable development’ in Central Asia.150 The CARs are currently working on strengthening this
institutional framework to improve its performance and enable better coordination among its 144 McCaffrey writes that the, ‘management of international watercourse systems through joint institutions is not only an increasingly common phenomenon, but also a form of co-operation between watercourse states that is almost indispensable if anything approaching optimum utilisation and protection of the system of waters is to attained’. S McCaffrey, Sixth Report on the Law of the Non-navigational Uses of International Watercourses, [1990] 2(2) Y B Int’l L Comm’n, pt.2, at 41 UN Doc A/C.N.4/427 and Corr 1, and Add1, at para 7. See also Pulp Mills Case, (where the Court very clearly linked the functioning of cooperative institutions to the effective fulfilment of substantive obligations. It stated that the overall objective of optimum and rational utilisation ‘must also be ensured through CARU, which constitutes ‘‘the joint machinery’’ necessary for its achievement’ and, further, that ‘[i]n addition to its [procedural] role in that context, the functions of CARU relate to almost all aspects of the implementation of the substantive provisions of the 1975 Statute’).145 art 7.146 Ibid. art 9.147 art 2.148 The International Fund for saving the Aral Sea (IFAS) is an interstate organization founded to develop and finance environmental and scientific-practical projects and programs aimed at environmental improvement in areas under the impact of Aral disaster as well as at solving common socio-economic problems in the region. The IFAS has two intergovernmental bodies Interstate Commission for Water Coordination (ICWC) and Interstate Commission for Sustainable Development (ICSD). See the 1999 Statute of the IFAS, supra note Error: Reference source not found. In 2008, the IFAS was granted the observer status in the United Nations General Assembly.United Nations General Assembly Resolution on Observer status for the International Fund for Saving the Aral Sea in the General Assembly UN GAOR, 63d Sess, Agenda item 156, UN Doc A/C.6/63/L.13, 14 November 2008.149 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on the Status of IFAS and Its Organizations (signed 9 April 1999), an unofficial English translation at <http://www.cawater-info.net/library/eng/ifas_e_1.pdf> [1999 IFAS Agreement].
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organizations.151 The UNECE Water Convention, which spells out the basic tasks of joint bodies
(Article 9(2)), can be useful in this endeavor. Although the UN Watercourses Convention is not
mandatory with regard to setting up joint bodies, the fact they have already been established in the
region is an advantage, as such bodies could be tasked with the convention’s implementation.152
4.4.2. Regular information exchange and consultations
Regular information exchange and consultations have become key elements of the international legal
body of procedural rules governing transboundary waters. They serve as tools for states to reach and
maintain an equitable balance of uses and benefits, and and prevent transboundary harm.153 Most CIS
and sub-regional agreements, however, only require parties to promote rather than to ensure the
exchange of information related to international watercourses. For example, the 1998 CIS Agreement
on Transboundary Waters requires countries ‘to establish principles of cooperation;’154 the 1992
Almaty Agreement provides that the parties ‘shall facilitate a wide information exchange'.155 In
contrast, the UN Watercourses Convention and the UNECE Water Convention codify and clarify a
clear duty of information exc.156
As for the type of data to be shared, the agreements applicable to the ASB refer to, e.g.:
a) ‘Radioecological Monitoring, water chemistry and hydrometeorology of water bodies’157 and
‘matters related to the Convention’158 (1998 CIS Agreement on Transboundary Waters);
150 Statute of the Interstate Commission for Sustainable Development (ICSD) (approved by the Decision of ICSD on 18 October 2000, Almaty). The ICSD is comprised of 15 members, including three representatives from each of the CARs (Ministers of the Environmental Protection, deputy Ministers of Economic Affairs, representatives from science and other areas) appointed by respective governments. 151 Project ‘Regional Dialogue and Cooperation on Water Resources' Management in Central Asia’ implemented by the IFAS Executive Committee and UNECE, financed by the Government of Germany through GTZ. See <http://unece.org/env/water/cadialogue/cadwelcome.htm> accessed 9 April 2011. 152 art 24(1) states, ‘Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism.’ [emphasis added].153 at 477 (stating that [c]onsultations are a key element of the processes that maintain a fair balance of uses and prevent unreasonable harm.’); at 107-108. 154 art 2 reads, ‘The Parties are obliged ... to establish principles of cooperation governing the regular exchange of information and forecasts on radioecological monitoring, water chemistry and hydrometeorology of water bodies [...].’155 art 5.156 UN Watercourses Convention, supra note Error: Reference source not found, art 9 and UNECE Water Convention, supra note Error: Reference source not found, art 13. 157 art 2.158 Ibid. art 3.
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b) ‘Scientific and technical progress in the field of water management, complex use and protection of
water resources,” and the results of “joint studies” and “expert appraisals of project plans of water
management facilities and economic assets” (1992 Almaty Agreement);159
c) ‘The level and volume of water in frontier rivers and … precipitation in the interior of the territory
of the two Parties as might avert danger or damage from flooding” (1958 Soviet-Afghan Frontier
Agreement);160
d) Ecology and environmental protection, including information about transboundary transport of
pollutants and possible transboundary impact of planned measures (1998 CIS Informational
Cooperation Agreement);161 and
e) “Full information on water resources use, water use infrastructure, legal and other documents that
define status of water as a resource, and water use procedure in the republics” (1991 Statement of
the Heads of the CARs’ water authorities).162
If taken together, these provisions are useful in defining the content of the information to be exchanged.
However, as regional and basin-specific treaties, the instruments at hand could have been even more
specific in exemplifying the relevant data to be shared, according to the characteristics and needs of the
basin. This would have better provided the riparian countries with the material necessary to comply
with their substantive obligations.
Such specification would have been of particular relevance in the development of a regional
information exchange system, which the CARs have identified as a priority step towards improving
water management.163 The establishment of a unified information system on water resources use,
monitoring of irrigation lands and hydrometeorological support is among ICWC’s main tasks.164 The
Central Asia Regional Water Information Base (CAREWIB) project was developed in response to such
a provision, and aims to ensure transparency and public awareness, and support decision-making in the
159 art 5.1601958 Soviet-Afghan Frontier Treaty, supra note Error: Reference source not found, art 17 states,
The competent authorities of the Contracting Parties shall exchange as regularly as possible such information concerning the level and volume of water in frontier rivers and also concerning precipitation in the interior of the territory of the two Parties as might avert danger or damage from flooding. The competent authorities shall as necessary also agree on a mutual system of signals during periods of high water.
161 arts 1 and 3.162 The 1991 Statement by the Heads of the CARs’ water authorities, para 6.163 `Database and Management Information System for Water and Environment' project was listed as a priority project in the ASBP-1. The ASBP-2 included as one of the activities `Strengthening Material/ Technical and Legal Basis for Interstate Organisations, Development of Regional Information System Designed to Manage Water Resources of the Aral Sea Basin'.164 1992 ICWC Statute, supra note Error: Reference source not found, para 2.6.
34
water sector.165 The CAREWIB and the CAWater-Info portal166 are acknowledged as “official
system[s] for keeping records, collection, use and analysis of data, and modelling of water and land
resources in the Aral Sea basin.”167 Although Afghanistan neither is a member of the ICWC nor has
participated in information exchange in the region, the CAREWIB project seeks to collect and
systematise water-related data from that riparian as well.168 Theses practical endeavors can be further
supported by the provisions of the UN Watercourses Convention, which details what information
should be exchanged, when and how.
As a general minimum requirement of customary international law, reflected in the UN Watercourses
Convention, countries have to exchange ‘readily available data and information’ concerning an
international watercourse. Although none of the instruments that impose the obligation to exchange
information and data defines the terms ‘data’ or ‘information’, it is clear, from their ordinary meaning,
that the terms include both raw data and information in the form of analyses, forecasts and reports. 169
The UN Watercourses Convention provides that the data and information subject to exchange relates to
‘the condition of the watercourse, in particular that of a hydrological, meteorological, hydrogeological
and ecological nature and related to the water quality as well as related forecasts.’ 170 The 1994 ILC
Commentaries spell out that this requirement ‘is designed to ensure that watercourse States will have
the facts necessary to enable them to comply with their obligations under articles 5, 6 and 7’.171
This set of data and information, although non-exhaustive, seems to be restricted to ‘the condition of
the international watercourse’ rather than to the wider range of factors relevant to equitable and
reasonable utilisation listed in Article 6 of the Convention. Article 13(1) of the UNECE Water
Convention also establishes a non-exhaustive list of the data to be shared, pertaining mainly to
watershed protection and preservation,172 while encouraging ‘the widest exchange of information, as
165 The project is funded by the Swiss Agency for Development Cooperation and implemented by the Scientific Information Centre of the ICWC with the assistance of UNECE and the UNEP/GRID-Arendal Office in Geneva, in close cooperation with five national water management organisations. For more information see <www.cawater-info.net/about_e.htm> accessed 4 April 2011.166 <www.cawater-info.net>167 CAREWIB 2008 Progress Report (CAREWIB Tashkent/Arendal/Geneva 2009) <http://cawater-info.net/library/eng/carewib/report_2008_en.pdf> accessed 10 April 2011.168 CAWATERInfo - Portal of Knowledge for Water and Environmental Issues in Central Asia. Database on Water resources of Afghanistan at http://www.cawater-info.net/afghanistan/data/index_e.htm and Knowledge Base on Afghanistan at <www.cawater-info.net/afghanistan/knowledge-base_e.htm> accessed 10 April 2011.169 See eg S. STEC and S. CASEY-LEFKOWITZ, The Aarhus Convention: An Implementation Guide (New York/ Geneva: United Nations, 2002) at 100 (explaining that ‘the environmental information might include such items as analyses, summaries, sampling or monitoring data, background documentation, expert opinions, feasibility studies, draft impact statements, forecasts and agency reports.’).170 art 9(1). 171 at 107 para 2.172 art 13(1) states,
35
early as possible, on issues covered by the provisions of this Convention.’173 Both instruments contain
provisions to protect certain categories of information: Article 31 of the UN Watercourses Convention
exempts from the exchange information vital to national defence or security;174 Article 8 of the UNECE
Water Convention protects information ‘related to industrial and commercial secrecy, including
intellectual property, or national security.’175
In requiring the ‘regular’ exchange of data and information, as distinct from the provision on
information concerning planned measures (discussed below), the UN Watercourses Convention calls
for establishing ‘an ongoing and systematic process’ of information flow between countries sharing an
international watercourse.176 However, the UN Convention does not specify how to transmit relevant
data and information – directly or indirectly, while the UNECE Water Convention indicates joint
bodies as a preferential platform for information exchange.177
By joining to the UN Watercourses Convention, the countries would also have clearer guidelines on
consultations with each other with respect to their shared waters. To date, the agreements concluded
under the umbrella of the Commonwealth and within the Aral Sea Basin make no direct reference to
regular consultations. The only exception is Article 3 of the 1998 CIS Transboundary Waters
Agreement which requires the Parties to enter into mutual consultations when they develop water
protection measures.178 For the rest, the regional and sub-regional agreements encompass consultation
mainly as a means of dispute settlement.179 By contrast, the UN Watercourses Convention envisages a
set of obligations on consultations between riparians. As a matter of customary law, the UN
Watercourses Convention strictly requires countries to consult each other at least in two instances:
when planned measures in one country may cause significant transboundary effect in another, and
when it is necessary to achieve and maintain equitable and reasonable use.180 The former case will be
The Riparian Parties shall, within the framework of relevant agreements or other arrangements according to article 9 of this Convention, exchange reasonably available data, inter alia, on: (a) Environmental conditions of transboundary waters; (b) Experience gained in the application and operation of best available technology and results of research and development; (c) Emission and monitoring data; (d) Measures taken and planned to be taken to prevent, control and reduce transboundary impact; (e) Permits or regulations for waste-water discharges issued by the competent authority or appropriate body.
173Ibid. art 6. 174 Ibid. art 31.175 art 8. 176 at 108 para 4.177 See eg art 9(2) includes the tasks of joint bodies ‘(c) To draw up inventories and exchange information on the pollution sources mentioned in paragraph 2 (a) of this article; (h) To serve as a forum for the exchange of information on existing and planned uses of water and related installations that are likely to cause transboundary impact; (i) To promote cooperation and exchange of information on the best available technology in accordance with the provisions of article 13 of this Convention, as well as to encourage cooperation in scientific research programmes.178 art 3. 179 See eg art 14, art 7, art 13, art 7.180 at 477.
36
considered below in the section on notification on planned measures and other related obligations. As
far as the latter is concerned, the Convention states, ‘In the application of article 5 [on Equitable and
reasonable utilization and participation] or paragraph 1 of [Article on factors relevant to equitable and
reasonable utilization], watercourse States concerned shall, when the need arises, enter into
consultations in a spirit of cooperation.’181
The Convention also requires countries to consult each other, directly or indirectly,182 in other
circumstances, e.g., negotiations on watercourse agreements,183 harm elimination or mitigation,184
pollution control measures,185 the management of an international watercourse,186 and the safe
operation, maintenance and protection of installations.187 Moreover, Article 4 sets forth an entitlement
of every watercourse state ‘to participate in the negotiation of and to become a party to any watercourse
agreement that applies to the entire international watercourse, as well as to participate in any relevant
consultations.’188 In similar fashion, the UNECE Water Convention prescribes in forceful terms that
consultations between the Riparian Parties ‘shall be held […] on the basis of reciprocity, good faith and
good-neighbourliness’ and ‘aim at cooperation regarding the issues covered by the […] Convention.’189
It further assigns an important role to river basin commissions by requiring that ‘[a]ny such
consultations shall be conducted through a joint body […] where one exists.’190
4.4.3. Prior notification on planned measures and other related obligations
The CARs and Afghanistan have not agreed on detailed procedures to be invoked in the case of
planned measures on an international watercourse. The language of sub-regional agreements only go as
far as to suggest that water management projects are subject to ‘joint consideration’ by the parties
concerned or an agreement between them.
a) The preamble of the 1992 Almaty Agreement refers to the need for ‘coordinated and organised
solution to the issues’ and ‘unified and coordinated actions,’ but the operative part of the
agreement falls short of specifying those procedures. 181 art 6 (2). McCaffrey states that ‘it might be argued, with some force, that regular consultations are indirectly required by the very nature of the obligation of equitable and reasonable utilization, namely, that it is a process premised on regular communication between states sharing an international watercourse. McCAFFREY, The Law of International Watercourses - Non-Navigational Uses, supra note Error: Reference source not found, at 478.182 Ibid. art 30.183 art 3 (5).184 Ibid. art 7(2).185 Ibid. art 21(3).186 Ibid. art 24(1). 187 Ibid. art 26(2).188 Ibid. art 4.189 art 10.190 Ibid.
37
b) Article 10 of the 1998 Syrdarya Agreement establishes that such matters as the construction of
new water facilities, dam safety, water conservation issues and wastewater disposal are subject
to joint consideration by the countries, but the procedures for such consideration remain to be
defined.
c) The 1998 Environmental Cooperation Agreement between Kazakhstan, the Kyrgyz Republic
and Uzbekistan stipulates that the Parties are to coordinate on the building of new facilities in
frontier zones, as well as of facilities that may have transboundary adverse effect, irrespective
of their geographical location. Again, the agreement is silent about how this coordination
should take place.191
d) Article 19 of the 1958 Soviet-Afghan Frontier Treaty requires prior agreement between the
parties for the construction of new facilities or the introduction of any changes that are ‘likely to
hinder navigation or influence the flow of water’ or ‘may affect the flow of water and the state
of the banks, and also cause damage thereto.’192
e) The 2006 Convention on Sustainable Development is more detailed in this regard, but is not yet
in force. It determines that transboundary harm and other adverse effects are to be prevented
and reduced inter alia through the ‘prior, timely and accompanied by appropriate information
notification of the Parties exposed to the danger of adverse effect and consultations in the spirit
of good will.’193
Existing joint bodies also lack a clear mandate that would stipulate their role in procedures concerning
planned measures.
a) The 1992 ICWC Statute gives the Commission the mandate to ‘coordina[te] implementation of
large water-related works and joint use of existing water management potential of the
countries’.194
b) The 2008 ICWC Statute takes one step further by authorising the Commission to “take up
notifications from a Party concerning construction of new water facilities that affect regimes of
water resources of interstate watercourses’ and to ‘flesh out proposals of the countries on
191 art 2(z).192 arts 19(2) and 19(3).193 art 4.1941992 ICWC Statute, supra note Error: Reference source not found, para 2.5.
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construction, reconstruction and operation of water management facilities of interstate
significance with countries’ shared funding.”195
Although positive in abstracto, these provisions carry little legal weight in the absence of relevant
procedural obligations and agreed timetables. Therefore, the UN Watercourses Convention, with its
sound and detailed procedural framework to guide countries in the case of planned measures, is of
exceptional relevance for the countries in the ASB. As a reflection of the customary law, Article 12 of
the UN Watercourses Convention states that, “before a watercourse State implements or permits the
implementation of planned measures which may have a significant adverse effect upon other
watercourse States, it shall provide those States with timely notification thereof.”196
In McCaffrey’s words, “[t]he duty to provide notification under the Convention arises when ‘the
planning state has reason to believe that the measures in question may have a significant adverse effect
upon other states.”197 The threshold of ‘likelihood of significant adverse effect’ – which is a lower than
that of ‘significant harm’ – is employed here to prevent a breach of the no-significant harm obligation
by triggering the procedural system concerning planned measures.198
McCaffrey and others stress that a determination of a likelihood of significant adverse effect is best
made through an impact assessment.199 Supported by widespread state practice, environmental impact
assessments (EIA) are considered today an essential part of interstate cooperation on planned measures.
The UN Watercourses Convention, rather than actually imposing an independent obligation to conduct
EIAs, considers EIA as a source of ‘available technical data and information’ under a general
obligation to notify and exchange information on planned measures.200 As McCaffrey explains, this
195 2008 ICWC Statute, supra note Error: Reference source not found, paras 2.18 - 2.19.196 art 12. 197 at 406. 198 at 111, para 2.See also Dissenting Opinion of Gavan Griffith QC in Dispute Concerning Article 9 of the OSPAR Convention (Ireland/UK) which states, that [...] “likely” in its ordinary meaning means “probable” as something expected but not certain to happen. The result of “likely adverse effect” is not a fact that is required to be proven empirically, but is merely to be recognised as a possibility as something may, but not necessarily will happen. Perhaps the phrase “reasonably to be expected” accurately expresses the standard.[...] In other words, when qualifying an activity as potentially harmful the Tribunal must be guided by the word “likely” that applies a lower threshold of proof for satisfaction at the level that is not “adverse effect” that must be established, but merely the likelihood of such adverse effect. Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland V. United Kingdom), Final Award of 2 July 2003, Permanent Court of Arbitration, OSPAR Arbitral Tribunal <www.pca-cpa.org> at 89 para 81-82.199 at 408. See also N. CRAICK, The International Law of Environmental Impact Assessment: Process, Substance and Integration (New York: Cambridge University Press, 2008) arguing that ‘Where the UNEP EIA Goals and Principles advance the development of international EIA obligations is that they make explicit what was until that time largely presumed -- that notification, exchange of information and consultation shall be undertaken on the basis of the information contained within the EIA document.’ 200art 12.
39
wording was the result of a compromise between government delegations which either supported or
opposed the idea of including EIA as a separate requirement.201
As far as EIAs are concerned, the UN Watercourses Convention seems to impose a less strict
obligation than those found in the regional and sub-regional agreements. There are 2 UNECE
conventions that formulate EIA provisions in a more robust way and specifically require parties to
undertake EIAs:
a) The UNECE Water Convention requires parties to ensure that an EIA and ‘other means of
assessment’ are applied in order to ‘prevent, control and reduce transboundary impact.’202
b) The 1991 Espoo Convention, a regional stand-alone procedural mechanism on EIA, obliges
parties to assess the transboundary environmental impact of specified activities, and to notify
and consult with potentially affected parties about those effects. It also prescribes detailed
provisions for such an assessment.203
EIA-related provisions in the 1992 CIS Agreement on the Environmental Interaction, the 1998 CIS
Agreement on Informational Cooperation Waters, and the 2006 Framework Convention on Sustainable
Development in CA require parties to conduct assessments, harmonise national EIA procedures, and
exchange information about those assessments.204
However, some level of legal uncertainty with respect to these assessments remains, given that those
agreements envisage diverse thresholds of harm potential to trigger the obligations to conduct EIAs.
Customary law and the Espoo Convention require a likelihood of significant adverse impact/harm to be
foreseen for conducting a transboundary EIA.205 The 2006 Framework Convention on Sustainable
Development in CA, the 1992 CIS Agreement on the Environmental Interaction and the 1998
Environmental Cooperation Agreement lower the threshold of risk by requiring the likelihood of
adverse impact or any impact that potentially may cross a border when deciding whether a TIA is 201 .202 art 3(1)(h) reads,
To prevent, control and reduce transboundary impact, the Parties shall develop, adopt, implement and, as far as possible, render compatible relevant legal, administrative, economic, financial and technical measures, in order to ensure, inter alia, that environmental impact assessment and other means of assessment are applied.
See also states that ‘While the SEA Protocol is not yet in force, SEA is relevant nonetheless for the implementation of article 3 (1(h)) of the Water Convention, insofar as it falls within the scope of the expression “other means of assessment” contained in the provision under review.’ 203 204 arts 2 and 3, 1998 CIS Agreement on Informational Cooperation, supra note Error: Reference source not found, arts 2(1) and 3, and arts 2(b), 4(6) and 7. 205 See e g, Principle 17 of the Rio Declaration, supra note Error: Reference source not found; Article 7 of the ILC’s 2001 Article and its commentary in ILC Report (2001) Commentary to the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN Doc A/56/10 (2001) [International Law Commission Commentary to 2001 Draft Articles], at 157 para 1.
40
required.206 Albeit this lack of consistency, the threshold of significant harm seems to be the minimum
which the CARs and Afghanistan have to respect according to customary law requirements.
Despite the weak language of the UN Watercourses Convention on EIAs, Article 12 is instructive in
including the results of EIAs in the package of notification documents207 and read alongside customary
international law would require EIA, stemming, for example, from duty to cooperate in good faith.
In addition, the UN Watercourses Convention envisages a set of provisions on reply or absent of reply
to notification.208 Importantly, the convention also considers the duties to exchange information,
consult and negotiate on the possible effects of planned measures as a part of the overall consultation
system. These requirements help establish the process of a two-way communication between the parties
concerned and ‘avoid problems inherent in unilateral assessments of the actual nature of such
effects.’209 The UN Watercourses Convention establishes a 6-month period within which the notified
state is expected ‘to study and evaluate the possible effects of the planned measures and to
communicate the findings’ to the states implementing the measure. The Espoo Convention requires the
notified State to reply within ‘a reasonable time.’210 Moreover, the Espoo Convention lays down the
possible content of consultations,211 and requests consultations on the revision of the decision on the
proposed activity212 and during the post-project analysis.213 Therefore, for Kazakhstan and Kyrgyzstan,
as parties to the Espoo Convention, the accession to the UN Watercourses Convention will not impose
additional burden with respect to the consultation procedures on planned measures.
206 2006 Framework Convention on Sustainable Development in CA, supra note Error: Reference source not found, art 2(b) reads, “[The Parties] shall ensure that any plans, strategies, projects and activities that may have adverse affect on natural resources and the environment as a whole are subject to appropriate impact assessments at early stages; and that ecological monitoring and audit of these are conducted regularly.” 1992 CIS Agreement on Environmental Interaction, supra note Error: Reference source not found, uses the expression ‘affect or may affect the interest’ and the 1998 CIS Environmental Cooperation Agreement, supra note Error: Reference source not found - ‘have or may have impact’.207 UN Watercourses Convention, supra note Error: Reference source not found, art 12, requires that ‘notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.’ The terms of the Espoo Convention are more detailed with the respect to the content of notification by prescribing that the notification shall contain, inter alia, information on the proposed activity and its possible transboundary impact, the nature of the possible decision, and the indication of a reasonable timeframe for a response by a notifying country, and may include relevant information regarding the environmental impact assessment procedure. See Espoo Convention, supra note Error: Reference source notfound, arts 3(2)-(5).208 UN Watercourses Convention, supra note Error: Reference source not found, arts 13 (Period for reply to notification), 14 (Obligations of the notifying State during the period for reply), 15 (Reply to notification), and 16 (Absence of reply to notification). Espoo Convention, supra note Error: Reference source not found, art 3. 209 ILC Commentary to 1994 Draft Articles, supra note Error: Reference source not found, at 111, para 3.210art 13 and arts 3(2)(c) art 5.211 Ibid. art 5.212 Ibid. art 6.213 Ibid. art 7.
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4.4.4. Continuous monitoring and assessment
As a result of increased understanding of the systemic nature of environmental changes and the
extended consequences of any intervention, the scope of impact assessments is gradually broadening
and other types of assessment, beyond the project level, have begun to emerge in state practice. Among
these are procedures for the monitoring and mitigation of adverse effects, strategic environmental
assessments, as well as integrated assessments to better accommodate diverse environmental,
economic, social and cultural impacts.
The need for both prior and ongoing assessments of the effect of activities on transboundary waters
finds support in regional treaty practice. The 2006 Framework Convention on Sustainable
Development in CA goes beyond the requirement of ad hoc assessments by prescribing that Parties
‘shall ensure that ecological monitoring and audit of [any plans, strategies, projects and activities that
may have an adverse affect on natural resources and the environment as a whole] are conducted
regularly.’214 This provision, combined with the requirement to ‘cooperate in establishing regional
mechanisms for monitoring of basic parameters and indicators of the environmental status,”215 echoes
other requirements contained in the relevant legal instruments: to conduct joint monitoring and joint or
coordinated assessments of the conditions of transboundary waters (UNECE Water Convention);216
“take measures for establishing a common monitoring system of water bodies” (1998 CIS Agreement
on Transboundary Waters);217 undertake post-project analysis (Espoo Convention);,218 and the
management of an international watercourse (UN Watercourses Convention).219 This is also consistent
with the decisions of by international courts and tribunals emphasizing that the no-harm and equitable
and reasonable use principles anticipates the obligation of continuous monitoring.220
214 art 2(b) reads, the Parties ‘shall ensure that any plans, strategies, projects and activities that may have adverse affect on natural resources and the environment as a whole are subject to appropriate impact assessments at early stages; and that ecological monitoring and audit of these are conducted regularly.’215 Ibid. art 7.216 art 11.217 art 4. 218 art 7. 219 UN Watercourses Convention, supra note Error: Reference source not found, art 24 reads,
1.Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism.2.For the purposes of this article, “management” refers, in particular, to: (a) Planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted; and (b) Otherwise promoting the rational and optimal utilization, protection and control of the watercourse.
See ILC Commentary to 1994 Draft Articles, supra note Error: Reference source not found, at 125(3), that explains that, together, subparagraphs (a) and (b) would include such functions as: planning of sustainable, multi-purpose and integrated development of international watercourses; facilitation of regular communication and exchange of data and information between watercourse States; and monitoring of international watercourses on a continuous basis [emphasis added].220 See, e.g., Gabčíkovo-Nagymaros Case, (Separate Opinion of Judge Weeramantry); Pulp Mills Case, para 281; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia V. Singapore), Reports of International Arbitral Awards, Vol. XXVII pp.133-145, UN (2008) Espoo Inquiry Commission. Report on the Likely
42
Since impacts not only on the environment, but also on persons and property fall within the scope of
the obligation of no-harm, other means of assessment may be required to evaluate risks. With respect to
the UN Watercourses Convention, McCaffrey noted that its terms are restricted in that it refers to
‘environmental impact assessment’ rather than the more general and unqualified term ‘impact
assessment’.221 In contrast, ‘impact assessment,’ as one of ‘appropriate methods,’ shall be employed by
the parties to the Convention on Climate Change ‘taking into account their common but differentiated
responsibilities’ and ‘with a view to minimizing adverse effects on the economy, on public health and
on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to
climate change.”222 In a similar fashion, the 2006 Framework Convention on Sustainable Development
in CA prescribes the duty to conduct ‘impact assessments’ in order to take environmental, social and
cultural considerations into account.223
The practice of international financial institutions (IFIs) illustrates a more inclusive approach to impact
assessment. For instance, the World Bank is presently supporting the preparation of an Assessment
Study for the proposed Rogun HPP in Tajikistan to assess (a) techno-economic aspects and dam safety,
and (b) environmental/ social impacts.224 The Techno-Economic Assessment Study (TEAS) will
conduct the analysis of techno-economic aspects of the construction of the Rogun HPP, including dam
type, dam height, construction phasing, reservoir operations and dam safety issues, and the entire
Vaksh River Development Masterplan.225 The Environmental and Social Impact Assessment (ESIA)
will address the environmental, socioeconomic and cultural situation at the project site, and identify
potential impacts, including the cumulative impact of the entire Vakhsh river cascade, on the relevant
areas of Tajikistan and all the riparian states.226 The ESIA will also assess Tajikistan’s energy policy,
from environmental and social perspectives (strategic impact assessment),227 and in terms of riparian
Significant Adverse Transboundary Impacts of the Danube - Black Sea Navigation Route at the Border of Romania and the Ukraine. July, 2006. 221 McCAFFREY, The Law of International Watercourses, supra note Error: Reference source not found, at 475.222 .223 art 6.224 World Bank, ‘Assessment Studies for Proposed Rogun Regional Water Reservoir and Hydropower Project in Tajikistan’ <http://go.worldbank.org/ZQXIA8J0H0> accessed 7 April 2011. 225 The Study will include the assessment of the construction work on the Rogun HEP done to date and future works. The Rogun HPP Project is based mainly on estimates calculated back in 1978, in particular the technical and engineering estimates of the geological, hydrological and seismological elements of its construction. Today the project needs additional and updated documentation, namely engineering specifications, financial analyses, additional safety audits, and environmental impact assessments for all countries of the river basin. Techno-Economic Assessment Study (TEAS) for the Rogun Hydroelectric Power Plant Construction Project. Terms of Reference, World Bank (3 April 2010) [ToR for the Rogun TEAS] annex 5.226 Environemntal and Social Impact Assessment Study (ESIA) for the Rogun Hydroelectric Power Plant Construction Project. Terms of Reference, World Bank (3 April 2010) [ToR for the Rogun ESIA]. 227 Ibid. para 21-22
43
and cross-border impacts (regional impacts).228 The studies will be undertaken separately, but in
parallel. The recommendations of the TEAS will include possible tradeoffs between techno-economic
issues and the issues of dam safety, environmental, social, resettlement impacts on other riparian
states.229 The assessments will be based on Tajik laws and regulations, international good practices and
the World Bank’s Safeguard Policies, which are to be consistent with relevant customary and treaty
law.230
4.4.5. Emergency cooperation
The devastating effects of natural and human-induced disasters on people and the environment ignore
political boundaries and call for active cooperation between countries in order to prevent, reduce and
eliminate such effects. The UNWC treats these cases as a matter of ‘emergency’, understood as ‘a
situation that causes, or poses an imminent threat of causing, serious harm to [states…] and that results
suddenly from natural causes, such as floods, the breaking up of ice, and slides or earthquakes, or from
human conduct, such as industrial accidents.’231 Accordingly, what distinguishes ‘emergency’ from
other situations or activities that may have transboundary effects is that it involves ‘imminent threat’
and results ‘suddenly.’ The need for cooperation throughout all phases of emergency situations, such as
prevention, preparedness, response and restoration, gains even greater salience in the light of
continuing extreme climatic and weather events.232
In the context of the ASB,
Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan must ensure timely forecasting of natural
hydrometeorological events and provide assistance to each other on the basis of international law in
case of their occurrence.233
228 Such regional impacts might include but not limited to ‘the impacts (during the construction and operating phases of Rogun HEP) on irrigation, agriculture, drinking and industrial water supplies, sanitary flows, sedimentation, flooding etc in the downstream countries, as well as impact on the agreed flow of water to Aral Sea and impacts on the downstream countries relating to the safety of the dam, ToR for the Rogun TEAS, supra note Error: Reference source not foundat 4. See also para 27, and also paragraphs 16, 33, 44, 47, 51, 52, 55, 56, 58, 60.229 230 As an organisation with international legal personality, the World Bank committed to pursue its activities in compliance with international environmental instruments. The World Bank Operational Manual. Operational Policies OP 4.01, 1999 para 3 states that ‘The Bank does not finance project activities that would contravene [the obligations of the country, pertaining to project activities, under relevant international environmental treaties and agreements]'. 231 UN Watercourses Convention, supra note Error: Reference source not found, art 28.232 para 206. 233 see especially preambular recitals and art 3 on the forms of cooperation.
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Under the Agreement on the Parallel Operation of the Energy System, those 4 countries must
provide mutual assistance in the case of emergencies for implementing remedial actions on energy
facilities and restoring normal energy supply for consumers.234
In their efforts to prevent emergencies arising from the possible breakdown of tailings and rock
dump due to adverse natural, climatic and hydrometeorological conditions, Kazakhstan, Kyrgyzstan
and Uzbekistan agreed to assess the danger, prepare tailings deactivation and closure projects, and
undertake activities on rock dump reclamation.235
The 1996 Agreement on the Use of Fuel and Energy Resources and Water Resources, Construction
and Operation of Gas Pipelines requires parties to nominate the ministries and agencies in charge of
information exchange on the occurrence or likelihood of occurrence of contingency situations on
reservoir cascades, hydropower stations and interconnection lines, and to participate jointly in their
prevention and elimination.236
The tasks of the ICWC include emergencies-related functions, including the development of joint
contingency plans to prevent emergencies and natural disasters, and eliminate their consequences.237
The CARs and Afghanistan have agreed to exchange information in order to avert danger or
damage from flooding, and alert each other during periods of high water. 238
Treaty law under the umbrella of the Commonwealth envisages preventive and responsive
obligations dealing with emergencies situations in forceful language, requiring parties to: take
measures to reduce and eliminate the effects of natural and human-induced emergencies, such as
floods, ice drift and accidental pollution (1998 CIS Transboundary Waters Agreement);239 set up
and maintain special forces and assets in order to prevent ecological disasters and accidents, as well
234 art 8.235 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, the Government of the Republic of Tajikistan and the Government the Republic of Uzbekistan on Joint Activities on the Rehabilitation of the Tailings and Rock Dump that Have Transboundary Effect (signed 5 April 1996) arts 1-5. 236 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic and the Government of the Republic of Uzbekistan on the Use of Fuel and Water Resources, Construction and Operation of Gas Pipelines in Central Asian Region, (signed 5 April 1996) art 1. 237 1992 ICWC Statute, supra note Error: Reference source not found, art 2(9) and 2008 ICWC Statute, supra note Error:Reference source not found, para 2.14.238 art 17 reads,
The competent authorities of the Contracting Parties shall exchange as regularly as possible such information concerning the level and volume of water in frontier rivers and also concerning precipitation in the interior of the territory of the two Parties as might avert danger or damage from flooding. The competent authorities shall as necessary also agree on a mutual system of signals during periods of high water.
239 arts 1 and 6.45
as to eliminate their effects (1992 CIS Environmental Interaction Agreement);240 and warn each
other of environmental emergencies, accidents and hazardous waste transfers (1998 CIS
Informational Cooperation Agreement).241
The presence of emergency-related obligations in the regional and sub-regional agreements is laudable
and does credit to the countries’ intentions to cooperate in critical situations. It also makes it easier for
the countries to commit to largely similar obligations under the UN Watercourses Convention. 242 This
is especially so for Kazakhstan, which is also a party to the UNECE Water Convention on the
Transboundary Effects of Industrial Accidents – designed to protect human beings and the environment
against industrial accidents,243 and of the UNECE Water Convention, with emergency-related
provisions.244
In terms of benefits from joining the UN Watercourses Convention, since the relevant provisions
dealing with emergencies are scattered in various regional and sub-regional, and not always water,
treaties, the UN Watercourses Convention can serve as a single reference point for their application to
transboundary waters. In addition, in fleshing out the anticipatory and responsive actions in the case of
emergencies, the UN Watercourses Convention establishes linkages between these and other
obligations under the Convention. As the 1994 ILC Commentary explains that Article 27245 is an
application of the general obligation of equitable participation that received a special consideration due
to the severity of these problems.246 A response to an actual emergency situation differs from other
convention’s obligations by requiring the countries notify each other ‘without delay and by the most
expeditious means available.’247 Hence, the UN Watercourses Convention can play an important
complimentary role with respect to cooperation on emergency situations in the ASB.
240 arts 2-4. 241 art 3. 242 UN Watercourses Convention, supra note Error: Reference source not found, arts 27-28. 243 244 UNECE Water Convention, supra note Error: Reference source not found, arts 3(j) and 14.245 UN Watercourses Convention, art 27. 246 ILC Commentary to 1994 Draft Articles, supra note Error: Reference source not found, at 129 para 2. See also at 222 (discussing complementary role of the Article 27 Article 27 may fulfil a complementary role with respect to Article 7 together with other provisions, namely, with respect to Article 9, on regular exchange of data and information, to Part III on planned measures, to Articles 5(2), 20 and 21 on protection and preservation of the ecosystems of international watercourses, to Article 24 on the obligation of consultation on management, and to Articles 25 and 26, insofar as they provide, respectively, the obligation to co-operate in the regulation of the flow and in the operation, maintenance and protection of installations. Cf. S. VINOGRADOV, P. WOUTERS, and P. JONES, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law, IHP-VI Technical Documents in Hydrology No 2 PC-CP Series (Paris: UNESCO, 2003) at 25 (arguing that: ‘However, there is no international customary legal obligation that would require a state to prevent or mitigate natural conditions on its territory, which contribute to naturally occurring hazards, such as flooding.’).247art 28(2). See also Article 17 of the 2001 ILC Draft Articles, supra note Error: Reference source not found.
46
4.5. Compliance review and dispute settlement
The aforementioned sub-regional agreements do not provide for a compliance review procedure.
Article 2 of the 1992 Almaty Agreement prescribes that the parties shall ensure that the agreed regime
is ‘strictly observed,’ but it remains unclear how non-compliance shall be detected and monitored. The
same agreement stipulates that, by 1992, Parties should have elaborated economic and other measures
to deal with the cases of non-compliance with the established regime and limits of water use. However,
such mechanisms are still lacking. Some disjointed attempts to monitor and facilitate compliance have
been undertaken under the 1998 Syrdarya Agreement. Article 5 stipulates that parties shall take
appropriate measures to ensure compliance with the provisions of the agreement through various forms
of guarantees, such as credit lines, security deposits and others. Article 7 of the 2001 Protocol adopted
to implement the 1998 Syrdarya Agreement states that, when necessary, the parties shall allow
observers from other contracting parties access to water management facilities in the Syrdarya River
Basin operation area. Although a compliance control system is yet to be established in the region, the
activities of the ICWC and its executive bodies appear to provide a basis on which such a system can
be built. Although the ICWC does not have a mandate to monitor compliance, its practice helps to
establish a collective and transparent forum for preventing and addressing controversies. A recent
development of regional and national information systems on water and environmental issues under the
aegis of the ICWC is one of the examples.
The UN Watercourses Convention does not require compliance monitoring, but does establish various
provisions to facilitate it. These include Articles 8 (general obligation to cooperate), 9 (regular
exchange of data and information), 11-19 (planned measures), and 24 (management). Another issue is
the lack of government mechanisms under the convention, such as the Meeting of the Parties or the
Secretariat, to facilitate and review compliance.248 This does not preclude the parties to the Convention
establish such institutions in the future if they so decide, following, for instance, the model of the
Ramsar Convention249 or conventions under the umbrella of the UNECE which provide a sound
institutional support to facilitate implementation and compliance with their requirements through the
Meetings of the Parties, secretariats, implementation and compliance committees, and various working
248 In his 6th Report, the Special Rapporteur had proposed a draft article on the Conference of the Parties that would provide for ‘institutionalized and regular collective action by the contracting parties,’ and ‘permit the parties to review, on a regular basis, the effectiveness of the convention in question and monitor its performance.’ The Special Rapporteur was hesitant to propose the establishment of the Secretariat ‘in connection to what is envisaged as a framework agreement.’ Sixth Report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen C. McCaffrey, Special Rapporteur, [1990] 2(10 Y B Int’l L Comm’n, 41 [6th Report by McCaffrey], 64 para 1 and 65 para 3. 249 Second Meeting of the Conference of the Contracting Parties (May 1984, Groningen, Netherlands) established the framework for implementing the Ramsar Convention. <www.ramsar.org> accessed 3 July 2011.
47
groups and boards.250 Some of these agreements also set up compliance review and monitoring
systems.251
Dispute settlement mechanisms relating to transboundary waters are largely undeveloped in Central
Asia. The 1992 Agreement refers any dispute that could arise between the Parties to the Ministers of
Water Resources for the five CARs. In other words, disputes shall be resolved internally within the
ICWC, the body responsible for the implementation of this agreement. As such, the ICWC acts to
prevent and resolve emerging controversies and provides a forum where representatives of the five
basin states can meet, discuss, and make binding decisions on contentious issues. The 1992 Agreement
further states that ‘if necessary, an impartial third party can be involved’252 but fails to detail the
procedure for such a dispute settlement, and further measures if a dispute cannot be resolved in this
manner. Article 9 of the 1998 Syrdarya Agreement prescribes that ‘Any dispute or controversy under
this agreement is subject of negotiation and consultations. If the dispute cannot be resolved in this
manner, the issue shall be submitted to an ad hoc arbitral tribunal.’ However, the agreement does not
specify the rules and procedures by which such tribunal shall operate.
Hence, as far as dispute settlement is concerned, the UN Watercourses Convention has much to offer to
supplement the insufficient provisions of the existing sub-regional instruments. The relevant provisions
reiterate the residual character of the UN Watercourses Convention by stating that its dispute settlement
provisions can be invoked in the absence of an applicable agreement between the parties.253 Further, the
Convention requires that the parties concerned shall seek a settlement of the dispute by peaceful means.
Such means may include negotiations, good offices, mediation or conciliation by a third party, or joint
watercourse institutions. The parties may also agree to submit the dispute to arbitration, according to
the procedure established in the Annexes to the Convention, or to the International Court of Justice.
What is more, the Convention provides an innovative mechanism of an impartial fact-finding
commission to resolve a dispute, which can be triggered if the parties concerned have not been able to
settle their dispute through negotiation or any other means within six months from the time of the
request for negotiations.254 Upon completion of its investigation, the Commission issues report with ‘its
findings and the reasons therefor and such recommendation such recommendations as it deems
250 See eg arts 17 and 19, Espoo Convention, supra note Error: Reference source not found, arts 11 and 13 and Decision II/4 of the 2nd Meeting of the Parties revised as Decision III/2. 251 See eg Decision II/10 on the review of the and Aarhus Convention, art 10(2).252 art 13.253 UN Watercourses Convention, supra note Error: Reference source not found, art 33(1).254 Ibid. art 33(3-10).
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appropriate for an equitable solution of the dispute, which the parties concerned shall consider in good
faith.’255
5. The Aral Sea Basin states opinions towards the UN Watercourses Convention
5.1. The countries’ participation in the UN Watercourses Convention’s drafting, negotiation, and
voting
The ASB countries did not participate actively in the preparation of the draft articles by the
International Law Commission (ILC) in 1974-1994 nor in the negotiation of the Convention in the
Sixth (Legal) Committee of the General Assembly in 1996-1997. These countries did not submit
written replies to the ILC’s questionnaire designed to elicit the views of states on international
watercourses use and management with a view to facilitating the future study of the topic by the ILC.
No reply was received from the USSR to the ILC’s questionnaire before 1991; neither comments nor
observations were submitted by the newly independent CARs after gaining independence or by
Afghanistan.
The Special Rapporteurs’ reports contain only one reference to the opinion expressed from the region,
namely from the representative of Afghanistan on the systems approach to defining the hydrological
scope of the Convention, supporting the term ‘international watercourse’ rather than ‘international
watercourse system.’ The Afghan representative stated that, non-navigational uses of international
waterways ‘had always been considered at the regional level, in the light of particular geographical or
other requirements;” moreover, “the new concepts formulated by the Commission, based on the notion
of systems, had no antecedents in State practice.’256
Nonetheless, during the Convention’s drafting, the Special Rapporteus analysed state practice from the
region as a basis to develop its text. In his 3rd Report, Mr Schwebel cites the 1958 Soviet-Afghan
Frontier Treaty as a rare example of water-related treaties in Asia dealing with water quality issues.257
The 1994 ILC’s Commentary to Article 20 on protection and preservation also make a reference to this
treaty.258 The reports refer to the region’s state practice to substantiate other issues, such as water
255 Ibid. art 33(8).256 Third Report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen M. Schwebel, Special Rapporteur, [1982] 2(1) Y B Int’l L Comm’n, 65 [3rd Report by Schwebel ] at 70 para 11.257 Ibid. 125 para 255.258at 120 para 7.
49
allocation (Helmand River Delta Case between Afghanistan and Iran),259 exchange of information on
floods (Amudarya),260 prevention and control of water-related hazards (Helmand River Delta Case),261
joint commissions (Helmand River Delta Commission),262 dispute settlement procedures (Helmand
River Delta case arbitration).263 Understandably, the reports do not include practice between the CARs
in the Amudarya and Syrdarya basins, which only became transboundary in 1991, after the demolition
of the USSR.
The fact that five CARs were part of the USSR until 1991 explains partly their absence in the ILC’s
work. It is less obvious why the countries of the region did not participate actively in the deliberations
that took place in the Sixth Committee and in the Working Group of the Whole in 1996-1997.264 Most
likely, the participation of Afghanistan was hampered by a continuous state of war in this country since
the late 1970s. The non-participation of the CARs may be explained by a number of reasons, such as
the unpreparedness or unwillingness of the countries to engage in active international negotiations at
that stage, the lack of interest in the issue at the time, or the treatment of transboundary water issues as
a concern to be resolved within the region through basin agreements.265 The latter point is evident in a
large number of treaties concluded between the CARs or within the CIS in the 1990s.
Nonetheless, during the Convention’s adoption at the UN General Assembly in 1997, no country from
the Aral Sea region voted against it. Kazakhstan was in favour of the Convention, Uzbekistan abstained
from voting, Afghanistan, the Kyrgyz Republic, Tajikistan and Turkmenistan were absent during the
voting procedure.266
5.2. Perspectives for the UN Watercourses Convention in the region
Uzbekistan remains the only country from the region that joined the UN Watercourses Convention. The
example of Uzbekistan, which abstained from voting but eventually acceded to the Convention,
259 Second Report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen C. McCaffrey, Special Rapporteur, [1986] 2(1) Y B Int’l L Comm’n, 87 [2nd Report by McCaffrey] at 121 para 130-132 .260 Fifth Report on the Law of the Non-Navigational Uses of International Watercourses by Mr. Stephen C. McCaffrey, Special Rapporteur, [1989] 2(1) Y B Int’l L Comm’n, 91 [5th Report by McCaffrey] at 98 para 20 refers to article 17 of the 1958 Soviet-Afghan Frontier on the exchange of information with a view to averting flood hazards.261 at 151, 157 paras 339, 365. 262 Third Report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen C. McCaffrey, Special Rapporteur, [1987] 2(1) Y B Int’l L Comm’n, 15 [3rd Report by McCaffrey] at 22 para 29 and at 73 para 79 (discussing the advantages of permanent commissions composed of nationals of the co-basin states vis-a-vis ad hoc export bodies composed from engineers from disinterested countries).263 3rd Report by Schwebel, supra note Error: Reference source not found at 181 para 473, and at 69 para 55.264 The summary records of the meetings of the Sixth (Legal) Committee of the General Assembly conducted in 1996-97 contain no reference to the comments from the countries. 265 2nd Report by McCaffrey, supra note Error: Reference source not found, at 97 para 51.266 UN General Assembly, 51st Session, 99th plenary meeting .Agenda item 144 Convention on the law of the non-navigational uses of international watercourses. 21 May 1997 (A/51/PV.99). Official Records. 21 May 1997.
50
demonstrates the possibility of changes in the position of the countries.267 One can speculate on the
reasons for such change, which may be grounded on political considerations, increased environmental
and social concerns related to transboundary waters, or improved legal understanding of the benefits
from the Convention for the peaceful use of the resource. It is also possible that the country intended to
express its position to the international community by cementing its adherence to international water
law as a basis of the relations over shared waters.268 In this context, what are the chances that other
countries of the region will join the UN Watercourses Convention?
Kazakhstan, voting in favour of the Convention, is the most likely candidate. Back in 2008, the
Chairman of the Committee on Water Resources of the Kazakhstan Ministry of Agriculture announced
that the Kazakh government intends to ratify the Convention ‘very soon.’269 It would be a logical, and
not very demanding, step for this country, since it has already committed to all water-related UNECE
Conventions which impose the similar or even stricter obligations on their parties. As was shown
above, the Espoo Convention sets forth detailed provisions on notification procedures in case of
planned measures, the UNECE Water Convention stipulates stringent requirements on preventing,
controlling transboundary harm, environmental protection, and establishing joint bodies.
The chances that Tajikistan accedes to the Convention in a short run appear to be not very high, despite
the presence of some encouraging signs to the contrary. Emomali Rahmon, the President of Tajikistan,
continuously highlights the key role of international agreements in addressing water-related problems
in the region. For instance, in his address at the 1st Asian Pacific Water Summit, Emomali Rahmon
stated, ‘Elaboration and adoption of International Water Convention could be one of the important
steps in a unification of efforts which would determine universal principles of water policy taking into
account ensuring the interests of all consumers.’270
Tajikistan also takes the lead in organising international water-related events, paying due regard to the
role of international law. In this respect the recent 2010 Dushanbe Declaration is illustrative in
‘[r]ecognizing that transboundary water cooperation needs to be guided by regional and international
267 Other examples of the states abstained from voting but then changing its position towards the Convention include Spain and France (acceded on 24 Sept 2009 and 24 Feb 2011 respectively) and Paraguay (signed on 24 Aug 1998). Multilateral Treaties Deposited with the Secretary-General, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-12&chapter=27&lang=en268 See eg O. A. HATHAWAY, "Do Human Rights Treaties Make a Difference?" (2001-2002) 111 Yale Law Journal 1935 (arguing that argues that human rights treaties might fulfil both instrumental -`create binding law that is intended to have particular effects' - and expressive -`express the position of those countries than join them'- functions. 269 Forum-ADB, “Regional Water Forum opens in Central Asia and the Caucasus” (14 July 2008) Astana <www.forum-adb.org/inner.php?sec=4&id=84&b=1> accessed 9 April 2011.270 ‘Address by the President of the Republic of Tajikistan His Excellency Emomali Rahmon at the 1st Asian Pacific Water Summit’ (4 Decemder 2007) <http://www.tajikistan.jp/index.en.php> accessed 9 April 2011.
51
agreements, as well as should be fostered among countries including within existing mechanisms and
modalities of water diplomacy.’271
The existing legal commitments of Tajikistan set the pace for its joining to the UN Convention. For
example, under the 1998 CIS Agreement on Transboundary Waters Tajikistan agreed to take into
account the provisions of the 1966 Helsinki Rules, on which the UN Watercourses Convention is
largely based, and the UNECE Water Convention.272 If Tajikistan completes the ratification process to
the Espoo Convention, it will be a party to another instrument largely aligned with the procedural
norms of international water law. To a certain extent, the country’s decision to join to the Convention
may be influenced by the process of impact assessment of the proposed Rogun HPP on the Vakhsh
River, a main tributary of Amudarya. As was discussed above, the assessment should be based on Tajik
laws and regulation, international good practices and the World Bank’s Safeguard Policies that are to
be consistent with relevant customary and treaty law. Finally, one might think that at least certain
preparatory work to join the Convention is ongoing in Tajikistan, since some officials and media pre-
launched the country’s ratification to it.273 To assist the country to make an informed decision to join
the Convention, awareness raising activities might be required.
The position of Turkmenistan regarding water resources use in the region also seems to be generally in
favour of treaties. In particular, the Head of the Delegation of Turkmenistan at the 7 th Meeting of the
OSCE Ministerial Council in Athens stated,
Turkmenistan has a clear and precise position on this matter. In principle, all the issues in this
sphere need to be dealt with on the basis of mutual respect, with due account taken of the
generally recognized norms and principles of international law, in particular the United Nations
conventions governing the use of the of the water resources of transboundary watercourses and
international lakes and also the protection of the environment in a transboundary context.274
The 2004 Agreement between Turkmenistan and the Republic of Uzbekistan on Friendship,
Confidence Building and Cooperation Development also stresses the need for environmental
cooperation at global scale. Article 13 states, ‘The High Contracting Parties develop cooperation in the
271 High Level International Conference on the Mid-term Comprehensive Review of the Implementation of the International Decade for Action, "Water for Life," 2005-2015 (8-10 June 2010) Dushanbe, Tajikistan <www.waterconference2010.tj/> accessed 9 April 2011.272 1998 CIS Agreement on Transboundary Waters, supra note Error: Reference source not found, preamble.273 "Tajikistan leads the way" by Struan Stevenson, Personal Representative of the President in Office of the OSCE (Kazakhstan) responsible for the Ecology & Environment of Central Asia <www.tajembassy.org.uk/news.htm> accessed 10 April 2011. 274 Statement by Mr. Esen Aydogdyev, Head of The Delegation of Turkmenistan, at the Seventeenth Meeting of the OSCE Ministerial Council, Athens, MC.DEL/27/09 1 December 2009 <www.osce.org/cio/40606> accessed 9 April 2011.
52
area of ecology, environmental protection, and [sic] the rational use of natural resources. These
promote coordinated actions in this area at regional and global level, aiming at establishing an
international system of environmental security.’275 The official representative of Turkmenistan in the
international water conference in Tashkent stated that preparatory procedures to join the UN
Watercourses Convention are under way in his country.
In early 2000s, the Ministry of Foreign Affairs of the Kyrgyz Republic found it inadvisable for the
country to accede to the UN Watercourses Convention. An official of the Department of Water
Management of the Kyrgyz Republic wrote back then, ‘The position of the Department of the Water
Management [on the accession to the UN Watercourses Convention and the UNECE Water
Convention] concurs with the position of the Ministry of Foreign Affairs of the Kyrgyz Republic on
this matter and states as follow: “The participation of Kyrgyzstan in the above Conventions is
unnecessary at this stage.”276 No evidence of a changed attitude towards the Convention can be traced
in the media and policy statements after then. The head of the Kyrgyz delegation on the international
conference in Tashkent largely supported this proposition and added that his country considers joining
the Protocol on Water and Health under UNECE Water Convention as a first step. He further stated
that Kyrgyzstan would be more willing to sign up to the UN Watercourses Convention than UNECE
Water Convention as more relevant to the issues in the Central Asian region. The need for training and
awareness raising was reiterated.
Afghanistan appears to be in a stage of assessing the current international legal environment with
respect to shared waters. In his presentation at the UNECE ‘Workshop on transboundary water
management in Central Asia’ on 13-15 October 2010 in Almaty, Kazakhstan, Mr. Sultan Mahmood
Mahmoodi, Director General of Water Affairs Management of the Ministry of Energy and Water
stated,
Afghanistan is now getting ready to deal with transboundary water issues and makes efforts for
any dialogue understanding with neighboring countries in the not far away future to result in
signing up to international agreement since we believe that dialogue and understanding and
international agreement to be the only effective solution regarding transboundary water.
275 Agreement between Turkmenistan and the Republic of Uzbekistan on Friendship, Confidence Building and Cooperation Development <www.cawater-info.net/library/rus/uzb_tur_4.pdf> (signed 19 November 2004).] 276 A. DJALOOBAEV, "Legislations of the Kyrgyz Republic on Water Resources Use. Laws and Regulations in the Kyrgyz Republic and Problems Related to Accession to the Convention on Transboundary Waters (in Russian)," in CAWATERinfo <www.cawater-info.net/library/rus/djayloobaev.pdf>, No date.
53
In a concluding note, the CARs and Afghanistan are likely to be interested in becoming parties to the
UN Convention but more consistent endeavours should be made to eradicate common misperceptions
about the Convention in the region, to which we will turn next.
5.3. Misperceptions about the UN Watercourses Convention and the ways to address them
Misperceptions about the normative requirements imposed by the UN Watercourses Convention are
still present in the region. The provisions of the UN Watercourses Convention have been interpreted as
giving preferential treatment to the interests of wealthy and powerful states, ignoring the situation in
water-stress countries, leaving too much discretion on individual states to interpret its provisions on
their own benefits, and being vague and imprecise in defining the rights and obligations imposed on
riparian countries.
A careful analysis of the UN Watercourses Convention and the broader international legal environment
in which it sits dispels some of these apprehensions and clarifies others. Section 4 of this study has
shown that the Convention imposes identical obligations on all watercourse states, irrespective of their
location on an international watercourse: all riparian states shall use an international watercourse in an
equitable and reasonable manner, prevent significant transboundary harm, protect and preserve
freshwater ecosystems, and make use of the procedural system of data sharing, notification,
consultations, negotiations, and dispute settlement. The framework and residual character of the UN
Watercourses Convention should be taken into account when concerns are raised about its imprecise
and vague requirements. The framework nature of the Convention implies that it lays down
‘sufficiently broad’277 rules that can be applied and adjusted to the world’s 276 international river
basins and 275 transboundary aquifers.278
Differences in the characteristics and uses of the watercourse, geopolitical factors, socio-economic
conditions, and demographic and climate change implications make it impossible to design a global
treaty that would address all issues and peculiarities in individual river basins. If more detailed and
precise provisions are required, they shall be agreed upon by the riparians for a particular watercourse.
However, even within the context of a particular watercourse, the formulation of clear-cut rules is
rather challenging, given a complex and constantly changing environment of transboundary water
management. Hence, the framework approach of the UN Watercourses Convention is helpful in 277 Second Report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen M. Schwebel, Special Rapporteur, [1980] 2(1) Y B Int’l L Comm’n, 159 [2nd Report by Schwebel] at 163 para 23.278 A. T. WOLF et al., "International River Basins of the World" (1999) 15 International Journal of Water Resources Development 4, 387. See the provisional findings of an inventory of transboundary aquifers implemented by Internationally Shared Aquifers Resources Management Programme (ISARM) at <www.isarm.net/>. ISARM has so far inventoried 275 transboundary aquifers: 68 on the American continent, 40 in Africa, 65 in South Eastern Europe, and 12 in Asia where the inventory is still in progress.
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sketching the normative limits of appropriate behavior while incorporating mechanisms of adaptation
to new circumstances and addressing constantly changing needs and values. Importantly, the UN
Watercourses Convention, being residual in character, comes into play if states do not agree upon
specific arrangements tailored to a given basin’s characteristics or if these agreements fall short of
providing a comprehensive regulation.
Misperceptions about the UN Watercourses Convention should be further clarified to help countries
make an informed decision about joining the Convention. In addressing existing misperceptions, care
should be taken not to create additional confusions, including false claims that the UN Watercourses
Convention is a panacea for building effective transboundary cooperation in the ASB. While it would
be much easier if this were true, it is not. However, as this study has shown, the Convention can make a
contribution to transboundary water cooperation in the ASB, and assist countries in building and
maintaining effective and peaceful management systems for their shared resources.
6. Conclusion: The role and relevance of the UN Watercourses Convention in the Aral Sea Basin
The foregoing analysis has shown the ASB does not suffer from the lack of regulatory endeavours; the
existing legal framework is rather overwhelmed by numerous instruments seeking to govern the
countries’ relations over the use and protection of shared waters. The problem lies in the normative
quality of these treaties, most of which have been adopted with no links to each other, fall short
incorporating the contemporary principles of international water law and best water management
practice, and neglect the significance of establishing a sound procedural system of transboundary water
cooperation. In this context, the need for the improvement of the existing legal framework is
undeniable, although the caution of the ASB countries towards new regulatory instruments is also
understandable.
The above review have also demonstrated that the UN Watercourses Convention can make contribution
to improving the legal framework for transboundary water cooperation in the ASB and assist countries
in building and maintaining effective and peaceful management systems for their shared resources.
Some of the roles that the UN Watercourses Convention can play are summarized below.
The relative clarity of language of the jus scriptum and a universal reference to the UN Watercourses
Convention’s customary provisions helps to increase transparency of international law which is an
essential prerequisite for building trust among the countries. The UN Watercourses Convention
codified and crystallised existing customary legal norms in the field. In doing so, the Convention
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makes it easier for riparian countries to consult the written text and rely on its specific language in
interpreting their customary rights and obligations. The law of international watercourses became
‘more easily accessible and more transparent’ and the countries got ‘a more reliable knowledge of the
scope of their rights and obligation’.279 The CARs make use of the Convention’s customary provisions
when they apply or interpret their international legal rights and obligations vis-à-vis each other and
Afghanistan.
The UN Watercourses Convention promotes novel approaches and creates new legal norms for the
contracting parties, such as the obligation to protect and preserve freshwater ecosystems and the fact-
finding procedure. Strong endorsement of the UN Watercourses Convention will also fill loopholes in
customary law by providing missing definitions (e.g. ‘international watercourse’), prescribing
timeframes (e.g. 6-month period for reply to notification) and clarifying linkages between norms (e.g.
between the equitable and reasonable use rule and no-significant harm). Professor Bourne notes on this
matter, ‘In fleshing out these basic rules, such as providing for a six-month time limit, the ILC has
engaged in beneficial progressive development of the law [...] the new provisions merely elaborate the
existing law and will make it more effective.’280By joining the UN Watercourses Convention, the CARs
and Afghanistan will be able to not only strengthen the legal framework for their shared waters, but
also contribute to strengthening the law of international watercourses at a global level.
The UN Watercourses Convention establishes a regime that results from all of its provisions in
conjunction. By joining the UN Watercourses Convention, the CARs and Afghanistan can benefit not
only from its individual (customary) provisions but also the entire text of the Convention that was
carefully crafted to provide a system of interacting and mutually supporting rules and procedures. The
substantive and procedural rules of the UN Watercourses Convention interlaced with one another,
make a sound framework for ‘the utilization, development, conservation, management and protection
of international watercourses and the promotion of the optimal and sustainable utilization thereof for
present and future generations.’281
The UN Watercourses Convention can play a supplementary role to the existing agreements which do
not comprehensively define the rights and obligations of the parties. Given its framework and residual
nature, the norms of the UN Watercourses Convention are mostly couched in broad terms to be applied
to a range of different river basins. Nonetheless, as the analysis above demonstrated, some of its
provisions are still more precise and specific than the norms of sub-regional agreements in the ASB.
279 Yoram Dinstein, 'The Interaction between Customary International Law and Treaties' 322 Receuil des cours 243, 365.280 C. B. BOURNE, "The International Law Commission's Draft Articles on the Law of International Watercourse: Principles and Planned Measures" (1992) 3 Colorado Journal of International Environmental Law and Policy 1, 65 at 72. 281 UN Watercourses Convention, preamble.
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The rule of equitable and reasonable use and notification procedure on planned measures, which the
sub-regional agreements seem to subsume under ‘joint management’ and ‘joint consideration’
provisions, are the most notable examples. In this context, the UN Watercourses Convention can
strengthen the substantive and procedural system of cooperation in the basin.
The UN Watercourses Convention can serve for the CARs and Afghanistan as a common platform for
the negotiation of future agreements in the ASB, since this global framework instrument does not
preclude or dismiss the need for watercourse agreements.282 Existing legal arrangements in the basin
were not designed to accommodate changing circumstances, nor can they be easily amended. As a
result, many treaties became stagnant and lost their effectiveness. The negotiations of new agreements
have not succeeded so far. Hence, the CARs and Afghanistan may want to join the UN Watercourses
Convention to have an agreed common framework at the global level, and later on they can strengthen
their commitments and/or adjust them to the characteristics of their watercourses. It might be also
useful to have the UN Watercourses Convention as a background for interpretation of bilateral treaties
and arrangements increasingly emerging in the region.283
The UN Watercourses Convention’s entry into force may enhance the collective interest dimension of
the law of international watercourses. Operating at the global scale, the UN Watercourses Convention
extends concerns about shared waters beyond the interests of riparian countries to the broader interest
of the international community in attaining sustainable development and maintaining peace and
security. Cooperative conduct from all states in ensuring equitable and reasonable use of transboundary
waters gains a special relevance and importance in the context of the globalised world that struggles to
achieve water security and ensure water for all. 284
Similarly, the UN Watercourses Convention can contribute to enhancing the domestic dimension of
water management by requiring changes within the jurisdiction of individual countries. The domestic
application is especially evident in the need for integrated water resources management, ecosystem
protection, and establishing ‘all appropriate measures’ such as relevant legal, administrative, technical
and practical mechanisms for the implementation of the Convention.
282 UNWC art 3(1).283 Granit and others,'Regional Water Intelligence Report Central Asia' 17-18.284 See eg A. Y. HOEKSTRA and A. K. CHAPAGAIN, Globalization of Water: Sharing the Planet's Freshwater Resources (Oxford: Blackwell Publishing, 2007), V. A. DUKHOVNY, "Water and Globalization: Case Study of Central Asia" (2007) 56 Irrigation and Drainage 5, ; P. WOUTERS, S. VINOGRADOV, and B.-O. MAGSIG, "Water Security, Hydrosolidarity and International Law: A River Runs through It..." (2009) 19 Yearbook of International Environmental Law 97
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The UN Watercourses Convention’s contribution to the peaceful settlement of disputes is manifested in
its sound procedural system and a range of dispute settlement mechanisms, including an impartial fact-
finding commission.
Finally, the UN Watercourses Convention can play an expressive role by signalling the willingness of
those countries that join it to actively deploy the rules and principles of international law to deal with
the pressing water problems.285
In a concluding note, the UN Watercourses Convention has much to offer to the countries in the ASB
in addressing their transboundary water problems. But the affirmative actions from the countries to take
an informed decision to join the Convention and implement it provisions are essential prerequisites. It
is now up to the countries to invoke its potential for ensuring water security for all.
285 Oona A. Hathaway, 'Do Human Rights Treaties Make a Difference?' 111 Yale Law Journal 1935.58
Annex I. Existing treaty law in the Aral Sea Basin
Treaties applicable to the ASB Afg Kz Kg Tj Tm Uz
Post-Soviet Central Asia
Agreement on Cooperation in the Field of Joint Management of the Use and Conservation of Water Resources of Interstate Sources (1992, Almaty)
- √ √ √ √ √
Agreement on Joint Actions for Addressing the Problems of the Aral Sea and its Coastal Area, Improving the Environment, and Ensuring the Social and Economic Development of the Aral Sea Region (1993, Kzyl-Orda)
- √ √ √ √ √
Agreement on Cooperation over Water Management Issues (1996, Chardjev)
- - - - √ √
Agreement on the Use of Fuel and Water Resources, Construction and Operation of Gas Pipelines in Central Asian Region (1996, Tashkent)
- √ √ - - √
Agreement on the Use of Water and Energy Resources of the Syrdarya Basin (1998, Bishkek)
- √ √ √ - √
Agreement on Cooperation in the Area of Environment and Rational Nature Use (1998, Bishkek)
- √ √ - - √
Agreement on the Parallel Operation of the Energy Systems of Central Asian States (1999, Bishkek)
- √ √ √ - √
Agreement on Cooperation in the Sphere of Hydromet (1999, Bishkek)
- √ √ √ - √
Agreement on the Status of the IFAS and its Organizations (1999, Ashgabad)
- √ √ √ √ √
Framework Convention on Environmental Protection for Sustainable Development in Central Asia (2006, not in force, Ashgabad)
- - s s s -
Commonwealth of Independent States (CIS) Afg Kz Kg Tj Tm Uz
Charter of the CIS (1993, Minsk) - √ √ √ √ √
Agreement on Interaction in the Field of Ecology and Environmental Protection (1992, Moscow)
- √ √ √ √ √
Agreement on the Main Principles of Interaction in the Field of Rational Use and Protection of the Transboundary Water Bodies (1998, Moscow)
- s - √ - -
59
Agreement on Informational Cooperation in the Field of Ecology and the Environmental Protection (1998, Moscow)
- √ √ √ - -
UN Economic Commission for Europe Afg Kz Kg Tj Tm Uz
Convention on Environmental Impact Assessment in a Transboundary Context (1991, Espoo)
- √ √ s - -
Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992, Helsinki)
- √ - - - √
Convention on the Transboundary Effects of Industrial Accidents (1992, Helsinki)
- √ - - - -
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998, Aarhus)
- √ √ √ √ -
Global conventions Afg Kz Kg Tj Tm Uz
UN Convention on the Law of the Non-Navigational Uses of International Watercourses (1997, New York)
- - - - - √
Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971, Ramsar)
- √ √ √ √ √
Convention on Biological Diversity (1992, Rio de Janeiro) √ √ √ √ √ √
UN Framework Convention on Climate Change (1992, New York)
√ √ √ √ √ √
UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994, Paris)
√ √ √ √ √ √
Selected agreements between the Soviet Union and Afghanistan
Frontier Agreement (1946, Moscow)
Treaty Concerning the Regime of the Soviet-Afghan State Frontier (1958, Moscow)
Protocol on the Joint Execution of Works for the Integrated Utilization of the Water Resources in the Frontier Section of the Amudarya (1958, Kabul)
60
Annex II. The UN Watercourses Convention and UNECE Conventions and the weaknesses of the existing treaties in the Aral Sea Basin
Treaties in the ASB, AFG, and CIS UNWC & UNECE Conventions
1. ScopeDo not include all riparian; Limited scope on groundwater and ecosystem
a system of surface waters and groundwaters - UNWC, arts 2(a) and 2(b); 1992 UNECE, art 1(1)
‘ecosystems’ - UNWC & 1992 UNECE) ‘drainage basin approach’ - UNWC, art 1(1)
2. Substantive obligations
2.1. Equitable and reasonable use
No explicit provisions Detailed provisions –UNWC Links with other substantive and procedural
rules - UNWC Complimentary and residual role to existing
agreements2.2. No harm
Incorporate the no-harm rule, imposing significant restrictions on the activities within the territories of states unless these actions coordinated with the affected parties
Codified in UNWC and 1992 UNECE Details due diligence - 1992 UNECE Clarity in the legal relationship with ERU which
is lacking in the existing legal framework in the basin - UNWC
Complimentary and residual role
2.3. Protection of international watercourses and their ecosystem
There are provisions to protect environment but these are mostly general.
Detailed provisions in 1992 UNECE UNWC - Environmental consideration included
in ERU and other provisions, including art 20-23
3. Procedural obligations and joint bodies
3.1. Cooperation though joint bodies
Joint bodies exists but their mandate is weak
1992 UNECE spells out the basic tasks of these bodies
3.2. Regular information exchange
Promote rather than ensure the exchange of information. The scope of the exchange is wide but the content is less specific.
Stringent terms in UNWC & 1992 UNECE A basis for development of a specific sets of
data and information
3.3. ConsultationsNo direct reference to regular consultations, except 1998 CIS TW Agreement
Clear guidelines on consultations on different matters - UNWC and 1992 UNECE.
Role for river basin commissions – 1992 61
UNECE3.4 Prior notification on planned measures, reply or absent of reply
No agreed detailed provisions but reference to ‘joint consideration’ and ‘joint managemet’
Sound and detailed procedural framework - UNWC & Espoo Convention
3.5. Environmental impact assessmentRequire conduct assessments, harmonise national EIA procedures, and exchange information. No detailed procedure on transboundary EIA
Detailed procedure in Espoo Convention UNWC includes EIA in the package of
notification documents
3.6. Emergency cooperationEmergency-related obligations exist UNWC (art 27-28) complimentary role
A single reference point for emergency in transboundary waters
Links with other obligations
4. Compliance reviewNo compliance review procedures Compliance review and monitoring (e.g.
reporting) under Espoo Convention and Aarhus Convention
Institutional mechanisms such as the Meeting of the Parties, Secretariats, Implementation and Compliance Committees, Working Groups) under the UNECE Conventions
Does not exist in UNWC but can be established by the decision of the parties
5. Dispute settlementNo detailed dispute settlement procedure A range of means, including an innovative
mechanism of an impartial fact-finding commission - UNWC
A would-be implementation mechanism under 1992 UNECE Convention
62
Annex III. List of interviewed people
1. Chingiz UZAKBAEV, Deputy Chair of the State Committee for Water Resources and Land Reclamation of the Kyrgyz Republic
2. Sultan RAKHIMOV, First Deputy Minister of Land Reclamation and Water Resources of the Republic of Tajikistan
3. Аhmet MUKHAMEDOV, Deputy Minister of Water Resources of Turkmenistan
4. Amirhan KENSHIMOV, UNDP-Kazakhstan
5. Abdybay Djaloobaev, the Kyrgyz Republic
6. Mavlon Kazakov, IFAS-Tajikistan
63