In March 2022, Afghanistan started building on its largest ever irrigation infrastructure mission, the Qush Tepa Canal. The canal stretches for 285 km and boasts a water discharge fee of 650 cubic meters per second, enabling it to irrigate as much as 550,000 hectares of land. Positioned in northern Afghanistan, on the Amu River basin, this marks the nation’s first ever main irrigation initiative.
The Amu Darya is taken into account probably the most essential river for Afghanistan and the Central Asian international locations from a socio-economic, ecological and political perspective, with almost 80 million individuals relying on its water. The river has a drainage space of 309,000 sq. kilometers and stretches 2,540 km throughout Afghanistan, Tajikistan, Turkmenistan, Kyrgyzstan and Uzbekistan with 1,250 km forming a typical border between Tajikistan, Uzbekistan and Turkmenistan.
When it comes to geography, 25% of the Amu River basin falls throughout the territory of Afghanistan, contributing 28% of the river’s water output. Nonetheless, Afghanistan makes use of far much less water than its neighbors Uzbekistan and Turkmenistan, at the moment utilizing solely 6.25% of the entire 67 bcm/yr of water from the Amu River, which is roughly 5 billion cubic meters yearly. In distinction, Uzbekistan (41.25%) and Turkmenistan (28.75%) use probably the most water, whereas Tajikistan (9.4%) makes use of it largely for electrical energy era.
Through the reign of President Muhammad Dawood Khan within the Nineteen Seventies, the Afghan authorities made its first makes an attempt to harness the waters of the Amu River and construct irrigation and hydropower tasks, together with the Qush Tepa Canal within the north. Throughout a visit to Moscow in 1977 to boost funds for the mission, he mentioned the canal with Soviet leaders. Nonetheless, the mission was by no means accomplished as a result of 1978 coup, extended political instability, wars and lack of funds.
If the QushTepa Canal mission is carried out in keeping with plan, it has the potential to be a recreation changer within the Amu Darya River Basin. The mission’s essential benefit is its capability to assist Afghanistan steadiness the present excessive water manufacturing within the Amu with its low consumption, resulting in comparatively larger consumption. This may give Afghanistan a greater place in future hydropolitical relations with Central Asian international locations and guarantee higher water safety for the nation.
This text examines the potential claims and issues of downstream riparian international locations, particularly Uzbekistan and Turkmenistan, relating to Afghanistan’s QushTepa canal mission on the Amu Darya river basin. The controversy facilities on theoretical and normative features of worldwide water regulation relating to the rights of late developed upstream states. As early developed downstream states, Uzbekistan and Turkmenistan are believed to have violated the essential precept of customary worldwide regulation horizontally, which requires states to not trigger hurt. If that is so, Afghanistan shall be in a greater place to retaliate and defend its future use of Amu Darya water.
The Authorized Regime within the Amu Darya River Basin
The Amu Darya river basin is a global watercourse and any new mission proposed by any co-riparian state within the basin can be a politically delicate concern as there isn’t any established authorized and cooperative framework between all co-riparians. The present authorized regime governing the basin is convoluted and sophisticated, because it includes shared use of the river by 5 contiguous states: Afghanistan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan.
Through the Union of Soviet Socialist Republics (USSR), the authorized regime of the Amu Darya River Basin (ADRB) was outlined between three totally different customers: Afghanistan-USSR and the USSR-four Union Republics, specifically Kyrgyzstan, Tajikistan, Uzbekistan and Turkmenistan. Afghanistan and the USSR concluded two agreements and a protocol in 1946 and 1958, which primarily handled the administration of border points, navigation and joint execution of works for the built-in utilization of water assets, however didn’t cope with water sharing.
Within the absence of a selected water-sharing settlement, the ideas of truthful and affordable exploitation, in addition to the duty to not trigger important injury to different riverbanks, as laid down in customary worldwide regulation, should be adopted. These basic ideas of worldwide water regulation are enshrined within the United Nations Conference on the Legislation of the Non-Navigational Makes use of of Worldwide Watercourses (UNWC), which serves as the first worldwide authorized instrument governing shared transboundary waters. Article 5, subsection 1, of the UNWC requires all riparians to make use of a global watercourse in a good and affordable method.
As well as, the Conference comprises a separate article on the duty to not trigger important hurt, which requires all watercourse States, when exploiting a global watercourse of their territories, to take all acceptable measures to forestall different watercourse States from inflicting important hurt. .
Nonetheless, there may be confusion amongst some states and water practitioners, each authorized and non-legal, as to the connection between the ideas of truthful and affordable exploitation and the duty to not trigger hurt. This has led to misunderstandings relating to the rights and obligations of upstream and downstream riparians. Downstream seashores usually depend on the no-harm obligation to guard their present makes use of and stop upstream seashores from implementing tasks that might hurt them. They require notification of any upstream exercise which will have an effect on their pursuits.
Whereas worldwide water regulation doesn’t restrict the notification requirement to downstream, most downstream riparians imagine that notification is their unique proper and doesn’t apply to upstream states. Nonetheless, a substantial physique of literature on the topic means that upstream coastal states will also be negatively affected by downstream international locations of their improvement. Subsequently, it is very important acknowledge that hurt can movement in each instructions, and downstream international locations also can hurt upstream nations by foreclosing future use of higher river banks.
Afghanistan’s shielded future makes use of
As beforehand mentioned, worldwide water regulation mandates that each one states sharing a global watercourse should exploit it in a good and affordable method and take needed measures to forestall important hurt to different states. Failure to think about the precept of inflicting substantial hurt could end in downstream coastal states unilaterally growing the watercourse, and foreclosing the upstream states’ future makes use of, that are nonetheless below improvement.
Such foreclosures happens when a downstream state unilaterally develops the watercourse with out consulting upstream states and subsequently declares that the upstream states’ future plans are unacceptable due to injury brought on by pre-established downstream makes use of. In consequence, the upstream states are denied the out there use of water sooner or later below the precept of truthful and affordable utilization, which has already been excluded by the downstream states. Downstream states invoke “prior use rights” and the precept of inflicting no hurt to justify their actions.
On this context, it may be argued that Uzbekistan and Turkmenistan, as early growing downstream international locations, have violated the basic precept of worldwide water regulation that requires states to not trigger hurt. Their unilateral actions have prevented Afghanistan from utilizing the Amu Darya river basin for future tasks and having fun with truthful and equitable use.
Beneath worldwide water regulation, Afghanistan has the proper to assert its protected makes use of by initiating irrigation and hydropower tasks on the river to make sure its truthful and equitable use. Subsequently, a breach of an obligation below IWL below the precept of countermeasures in worldwide regulation by one State could result in a proportionate breach of a corresponding obligation by one other State, as long as the unique breach is a “severe or substantial” breach.
Which means that if Uzbekistan and Turkmenistan have breached the duty to make sure truthful and affordable use in a “severe and materials” approach, upstream Afghanistan could have the authorized proper to proportionately breach the duty to do no hurt. The Worldwide Court docket of Justice (ICJ) acknowledged this method within the Gabcikovo-Nagymaros mission case between Hungary and Slovakia in 1997, the place the Court docket held that “violation of different treaty guidelines or guidelines of normal worldwide regulation could justify the adoption of sure measures, together with countermeasures, from the injured State.”
Assuming that downstream Uzbekistan and Turkmenistan have dedicated to violating the essential precept of customary worldwide water regulation, inflicting no hurt, Afghanistan can be in a greater place to retaliate and take countermeasures to revive the Amu Darya’s future makes use of.
Nazim Samoon is a researcher and professional in transboundary water administration. He focuses on writing on water-related points from authorized, political and coverage views.