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The Environmental Law Centre has been developing considerable experience and knowledge in relation to water conservation and governance thanks to multiple projects implemented on the ground and further investigation on water-related matters. In this section you can find a series of legal advices we developed in response to specific needs.
The answers to questions and views expressed in them do not necessarily reflect IUCN official position. The responses provided aim at offering a technical contribution on the legal issues raised to the WLGSP.
Is the Vakhsh River internal or transboundary?
Is it necessary to establish institutions for the management of shared basins?
What are the principles that govern the behaviour of different States in relation to shared basins?
What part of a transboundary water basin is shared? The water, the river, or other natural resources of the river?
Is the Vakhsh River internal or transboundary?
Please take a look at the Amu Darya River Basin map at http://amudaryabasin.net/resources/amu-darya-river-basin. The Vakhsh River is one of the two major tributary rivers contributing to the Amu Darya flow. Tajikistan, an upstream riparian, claims that the Vakhsh is entirely located within its territory; therefore, it has the right to proceed with the projects along its domestic waterways without regional consultations. On the other hand, the downstream countries define the Vakhsh as a transboundary river. How would you define the Vakhsh River: is it internal or transboundary? Thanks!
Answer
The Vakhsh is a transboundary river shared between Kyrgyzstan (where it is known as Kytyl-Suu) and Tajikistan. Its headwaters are located in Kyrgyzstan, in the Pamir Mountains, then the river flows through Tajikistan and joins the Panj to form the Amu Darya, at the border of Tajikistan and Afghanistan [1].
A river can be classified as international when “falls under the sovereignty of several States in various forms, either because they separate two different States or successively cut across two or more States” (Aguilar and Iza 2011) [2]. Similarly, according to the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC), an “International watercourse means a watercourse, parts of which are situated in different States” (Article 2(b)). Rieu-Clark and alt. explain that the UNWC definition “covers a “watercourse systems” that cross international boundaries, including major and minor watercourses and their tributaries, and connected lakes and aquifers, glaciers, reservoirs, canals wetlands and floodplains" [3].
The Vakhsh is one of the main tributaries of the Amu Darya, which is the largest river in Central Asia and whose waters discharge into the Aral Sea. The Amu Darya can be considered a watercourse system in the sense of the above mentioned definition.
In 1992 five Aral Sea Basin States (not Afghanistan) signed an agreement [4] for the creation of the Interstate Commission for Water Coordination (ICWC). In its Preamble it is clearly recognized the “indissoluble interdependence of all republics interests in common water resources use according to common principles and equitable regulation of their consumption”. Moreover, unified and coordinated actions are identified as the only mechanisms to address socio-economic and ecological problems caused by the deficit of water resource and their disproportionate use. The concept of “community and unity” of regional water resources is re-emphasized in Article 1 which also states that “(…) [the] Parties have equal rights for their use and responsibility for their rational use and protection”. In addition, Article 3 [5] reflects the no transboundary harm principle, which is part of customary international law, Article 5 [6] states the importance of exchanging information, and Article 11 [7] establishes the binding nature of all ICWC decisions for all water consumers and users.
The ICWC [8] is supported by the BWO [9] “Amudarya” and “Syrdarya” which are its executive bodies, together with the Secretariat. Among its objective, the Statute of the ICWC establish its power of investigation on notification given by a Party when constructing new water structures that could affect water regimes in the shared waterways [10]. Although not explicitly mentioned in the 1992 Agreement, the duty of notification can be derived by the Statute’s provision and it is reinforced by the aforementioned idea that regional waters are a common and unified resources [11]. In addition, since the basin is the basic management unit, basin countries should consult with each other in order to ensure that the activities realized in the main course as well as in the connected surface and ground waterways are coordinated and consistent with each other and pursue the protection of the shared resources and their equitable and reasonable utilization.
However, it is also important to consider the adoption of a functional approach to evaluate wheter the activities developed by a basin State, especially when it is located upstream in a shared basin, would effectively have an impact on the quality and quantity of the water flows. Since “not every upstream resource utilisation subtracts benefits from the downstream users" [12] if the activities proposed are not expected to cause consistent impacts it could be argued that there is not a duty to notify them.
Given that the Vakhsh River is transboundary and part of the Amu Darya Basin, Tajikistan should inform the other riparian States according to the principles of cooperation and good neighbourliness. Moreover Tajikistan, being upstream, has the obligation to take into account the interests of the other riparian States and find an appropriate solution, in line with the decision of the Lake Lanoux Arbitration [13].
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[1] As shown in the map available at p. 109 of the UNECE Second Assessment of Transboundary Rivers, Lakes and Groundwaters (2011). Accessible at http://www.unece.org/fileadmin/DAM/env/water/publications/assessment/English/G_PartIV_Chapter3_En.pdf
[2] Grethel Aguilar Rojas and Alejandro Iza (2011). Governance of Shared Waters. Legal and Institutional Issues. Gland, Switzerland, IUCN.
[3] Alistair Rieu-Clark, Ruby Monihan and Bjørn-Oliver Magsig (2012). UN Watercourses Convention User’s Guide. Dundee, United Kingdom, IHP-HELP Centre for Water Law, Policy and Science.
[4] Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan and the Republic of Uzbekistan on co-operation in interstate sources' sources' water resources use and protection common management, from now onward the 1992 Agreement. Accessible at http://www.icwc-aral.uz/statute1.htm
[5] Article 3 states “Each Party participating in the agreement is obliged do not allow some action within its territory which can break interests of other parties and to make damage to them or lead to change of agreed water discharges and water sources pollution”.
[6] Article 5: “Parties will facilitate wide information exchange on scientific-technical progress in water- economy, complex use and protection of water resources, common research carrying out for scientific-technical provision and expertise of water related projects”.
[7] Articles 11: “All decisions by ICWC on the established water intake limits, water resources rational use and protection are obligatory for all water consumers and water users”.
[8] According to Article 8 “ Interstate Commission for Water Coordination is entitled:
- to determine of water policy in the region, elaborate of its directions with due regard to all economic branches needs, complex and rational use of water resources, prospective program on the region water supply and measures for its realization;
- to elaborate and affirm water consumption limits annually for each republic of the region and the region as a whole, appropriate scheduling of water reservoirs operation, their correction according to updated forecasts depending on water supply and water-economic situation”.
[9] BWO stays for Basin Water Organization
[10] Statute of the Interstate Commission for Water Coordination of Central Asia, Article 2: “The main objectives of ICWC are as follows” paragraph 18 “Investigation of notification by one of the Parties about construction of new water structures impacting water regimes in shared waterways.”
[11] According to Article 1 of the 1992 Agreement
[12] Kai Wegerich, Olicer Olsson, Jochen Froebrich (2007). Reliving the past in a changed environment: Hydropower ambitions, opportunities and constrains in Tajikistan. In Energy Policy N. 35 (2007), pp. 3815 – 3825.
[13] Lake Lanoux Arbitration (France v. Spain), November 16, 1957. Accessible at http://www.ecolex.org/server2.php/libcat/docs/COU/Full/En/COU-143747E.pdf For more information on the Lake Lanoux Arbitration see Aguilar and Iza, cit., p. 104.
Is it necessary to establish institutions for the management of shared basins?
Answer
The setting up of an institution is a mechanism to promote integrated water basin management, to provide relevant content and implement the duties and powers of the States to use water in an equitable manner, and not to cause damage.
What are the principles that govern the behaviour of different States in relation to shared basins?
Answer
The principle of cooperation establishes a general obligation of riparian States to act jointly and in good faith in the management of shared water resources. The principle of ‘integrated management’ points to the duty of States to manage the basin as a unit, including that of surface and underground waters and any connected resources. The principle of sustainability implies the need to consider the waters of a shared basin within the particular context of the ecosystems of which they are part, in order to ensure a balance between environmental protection and use. The precautionary principle refers to the need to prevent, reduce or control damage or harm to the aquatic environment, even when there is no certainty that damage may be caused. The duty not to cause harm refers to a due diligence duty to avoid known risks that could result in damage to the basin’s resources. The participation principle establishes equitable, reasonable and sustainable use of the basin. It also refers to public participation in the management of the basin.
What part of a transboundary water basin is shared? The water, the river, or other natural resources of the river?
Answer
The water basin includes other resources besides the river and which are connected to it. Some of these are divisible by nature, such as the channel for example, where each State exercises limited sovereignty over the portion of the channel passing through its territory. The water flowing in the basin itself is a non-divisible natural resource. States exercise joint ownership over this resource which leads to shared sovereignty. The same applies to the living resources that inhabit the waters and which have independent mobility.
