Compliance of the Almaty Agreement on transboundary water cooperation with the International Water Law principles



Introduction

Different geographic landscapes naturally create conditions for unequal distribution of water resources between different countries. This in turn leads to uneven distribution of resources of the water bodies and benefits from using them. The last two decades have been characterized by a gradual growth of scientific attention towards the issues of hydropolitics, transboundary water governance and water diplomacy (Klimes et al. 2019; Molnar et al. 2017; Wolf 1998, 1999). A number of scientific evidences demonstrated causal relations between transboundary water conflict and geographic location (Warner and Zawahri 2012), power (Zeitoun and Warner 2006), economic interdependence of the riparian countries (Klaphake 2005) and other factors. In this body of literature, transboundary cooperation over shared waters is recognized as important factor for creating and enabling an environment for sustainable and long-term development of countries which are dependent on resources of the rivers. However, transboundary water cooperation is not always an easy and straightforward process. Founders and proponents of Institutionalist school of thoughts in transboundary water cooperation such as Aaron Wolf, Susanne Schmeier, Matthew Zentner and others argue that clearly formulated and accurately designed international agreement facilitates cooperation between countries (Zentner, 2011). According to Kittikhoun & Schmeier (2020) river basins with formally designed treaties tend to be more responsible towards their riparian neighbors.

In formulating international treaties principles of International Water Law (IWL) should serve as a basis. International water law principles call for more balanced and justified use of the resources — by that balancing the interests and needs of the riparian states. Using IWL principles might help to balance power and other injustices — be it geographic location, allocation o resources and others. However, embedding principles of International Water Law into cooperative processes between the riparian states is not a simple process. The variety of contextual factors and already existing normative regulations for cooperation raise challenges for successful implementation of the IWL principles in each specific basin.

Significant body of scientific literature was built in the field of International Water Law. A number of prominent scholars such as Attila Tanzi, Stephen McCaffrey, Patricia Wouters, Sergei Vinogradov and others have contributed to this interdisciplinary field by shedding light on implementation process of International Water Law principles in different contexts. Therefore, studying International Water Law, inclusion of its principles into existing normative frameworks for cooperation, and identifying hindering factors in their embodiment seem extremely important given the variety of the contexts existing as background in transboundary cooperation.

With this, it is important to consider specific features of each case of transboundary cooperation with the aim to understand the current standpoint, missing elements of the International Water Law principles in the existing cooperative frameworks, and identify challenges for adopting IWL principles — both through new agreements or by adjusting the existing ones.

With that, Zentner (2011) in his Springer-featured book argues that detailed and scrupulously elaborated international water treaty built on the principles of International Water Law leads to sustainable cooperation. However, in the case studies used to justify his arguments the author provides basins with the binary situation — good agreement-good cooperation, no agreement-bad cooperation. With the aim to provide further justification to the author’s statement, it might be useful to consider cases which are “in the middle” — there is a treaty and some cooperation, but not considered as successful.

Current research aims to contribute to the existing research by looking in more details into the regional agreement on joint management of Amudarya River Basin which was pointed out to be the case of weak transboundary cooperation (Ратнам, 2000, Allouche, 2007; Joint statement of heads of states—Founders of the International Fund for saving the Aral sea , 2009; Chatterjee et al., 2013; Menga, 2016; Krasznai, 2017), by identifying if its clauses comply with the IWL principles, and by trying to understand the relation between the design of the treaty and cooperation in the Basin.

Case study

Amudarya river is the main source of life for the countries of its basin. The Basin is located almost entirely in the region of Central Asia. Amudarya is the largest river in the region in terms of annual water flow (79.4 km3 per year). It originates in Tajikistan (74 % of the flow), Kyrgyzstan (2 %), Afghanistan and Iran (13.9 %), then forms the border between Afghanistan and Uzbekistan (8.5 %), crosses the territory of Turkmenistan (1,7 %) and flows back to Uzbekistan, where it used to discharge into the Aral Sea. During the last decade Amudarya is not reaching the Aral Sea anymore due to the extensive withdrawal of water for agriculture. It stretches for 2540 km from the headwaters of the Pyanj, its main tributary, to the Aral Sea and has a catchment area of 309,000 km2”.

Water of Amudarya river is used to improve the economic condition of the countries on the river bank. Tajikistan has several hydroelectric power plants (HPP) and uses water to provide electricity to its country and exports to neighboring countries, thereby improving the economic condition of the country. The HPP is used at full capacity during the winter. In the summer, in the downstream countries, during the growing season, agriculture in Tajikistan is in the process of filling dams in preparation for next winter, which causes an imbalance in irrigation regime. Afghanistan uses water for agriculture, although it has a good geographic location for the construction of a hydroelectric power station, which in the end may complicate the situation for the downstream countries. In the middle and lower reaches of the country, Turkmenistan and Uzbekistan are agricultural producers and leaders in the production of cotton, rice and wheat in Central Asia. As a result, the water of the Amu Darya is completely disassembled for irrigation and does not reach the Aral Sea.

Dinara Ziganshina and Barbara Janusz-Pawletta are the most prominent scholars who focused on the legal and institutional aspects of cooperation in the Aral Sea Basin countries, as well as other scholars as Sergei Vinogradov and Bakhtiyor Mukhamadiev. The scholars could identify weaknesses of existing legal and institutional aspects of cooperation between Central Asian countries, and propose potential solutions. However, during the last decades there is no progress towards improving existing legal framework for cooperation. Therefore, it is important to do additional research in order to identify potential pitfalls in future cooperative arrangements.

Substantive rules

Taking into account framework character of the UNECE Water Convention, it is anticipated that substantive and procedural norms of the document would provide general recommendations and guidance for the tailor-made agreements for each particular basin. With the aim to identify if legal and institutional framework of cooperation over Amudarya River complies with the substantive and procedural norms of the International Water Law we analyzed patterns of compliance of the clauses of Almaty Agreement 1992 represented by the UNECE Convention of 1992 we could identify some patterns. The following chapter represents the results and provides discussions.

Article 1 of the Almaty Agreement states that parties to the Agreement “shall have equal rights to water use and responsibility to ensure rational use and protection of water”. This clearly resonates with the article 1, clause 6 of the Convention stating that “The Riparian Parties shall cooperate on the basis of equality and reciprocity”.

Article 2 of the Agreement — “The Parties shall ensure that the agreed procedure and established rules for water use and protection are strictly observed” cannot be associated with a specific part of the Convention. The limitation, or “soft” engaging power of the Convention is embodied here in vague formulations. While Almaty Agreement can impose compulsory rules, the Convention provides more generalized recommendations. This however can be traced in few articles: article 2 and its second and third clauses, and in the others, through the words “…shall take all appropriate measures…”, “…measures shall be taken, where possible…”. Based on that we could conclude that Almaty Agreement provides rigorous rules of compliance, in comparison to the Convention.

At the same time, while being ambiguous in formulating the obligations and responsibilities, the Convention provides much more nuanced approach to discussing transboundary issues. For example, the Convention specifies measures necessary for prevention, control and reduction of transboundary impact (article 3). This extensive list is not to the same degree represented in the Almaty Agreement.

The article 3 provides similar rigorous formulation as the previously mentioned article — “… shall refrain from actions on their respective territories that might affect interests of other contracting Parties and cause them harm, lead to deviation from agreed volumes of water discharges and pollution of water sources…”. In contrast, the Convention provides extensive least of activities which should be considered as harm, and which activities should be undertaken, under the article 3. Additionally, the Convention introduces polluter-pays principle from the article 2. This obligation, as well as the reimbursement of costs and any other economic stimulus were not mentioned in any clauses of the agreement.

Article 4 specifies environmental flow, but depending on water availability in each year concerned. Special decisions are needed for low water level years. Again, the Convention does not specify any water object, but stresses the need to consider needs of future generations in planning water use and protection.

Procedural norms

Procedural norms constitute significant part of Almaty Agreement.

Article 5 obliges countries to cooperate in sharing information and scientific products, and joint research. Article 5 of the Convention provides much more detailed specification of joint activities, such as joint production of methods for reducing transboundary impact, preparation of methods of safe building of hydraulic constructions on transboundary rivers, and others.

Article 6 obliged countries to make joint decisions about using productive capacities of water management of the republics. Clause 6 of the article 2 of the Convention specifies that countries shall coordinate their national policies, strategies and programs in order to minimize transboundary impact.

Establishment of the Interstate Commission for Water Coordination (ICWC) is prescribed by the Article 7 of Almaty Agreement. Some normative clauses of the Convention are reflected in the tasks of ICWC, such as defining water management policy in the region, and development and approval of water use limits. Second clause of the Article 9 of the Convention, which obliges countries to establish joint bodies, provides much more detailed and specified list of activities to be implemented by a joint bodies. From all list of activities to be implemented by the joint bodies specified by the Convention, the Agreement focus on only two.

Articles 9–11 of the Agreement specifies organizational details of functioning of ICWC which was not considered in the Convention. Article 12 provides information about economic and other measures for non-compliance with the agreed norms and limits of water use.

Article 13 mentions that the disagreements are to be solved by the heads of respective water agencies, and, if needed, with participation of a neutral party. The Convention in its article 22 provides much more specified instructions for the cases of disagreements. Article 14 states that the Agreement can be changed with the agreement of all parties, which is in general aligned with the Article 9 of the Convention.

Results

The analysis of the alignment of the clauses of Almaty Agreement with the UNECE Convention clauses enabled to draw the following results.

First of all, formulation of obligations and enforcement in substantive norms of Almaty Agreement is much more direct, inambiguous, and rigorous, in comparison to vague and ambiguous clauses of UNECE Convention. At the same time, despite its vagueness in terms of taking obligations and enforcement, the Convention provides much more specified list of measures to prevent, control and reduce transboundary impact. With regard to the latter Almaty Agreement does not specify which activities are implied under “cause harm”. The only specifications available are “deviation from agreed volumes of water discharges” and “pollution of water sources”.

Secondly, it might seem that both documents specify procedural norms in significant details. However, when looking into details it became clear that the UNECE Water Convention provided wide range of specific measures for facilitating cooperation over transboundary rivers, such as data exchange, monitoring, prevention of information, joint bodies, consultation, common research and others. While being more specific about the activities of regional joint bodies — Interstate Commission for Water Coordination, the Almaty Agreement does not specify other cooperation mechanisms such as details of joint scientific cooperation — which norms/products should be produced as a result of joint work. Besides, the Agreement does not specify which activities should be undertaken to prevent or minimize further negative transboundary impact. In this sense, Almaty Agreement seems more like an umbrella agreement which needs more clarification with the help of signing additional agreements.

In the Almaty Agreement some basin-specific needs were mentioned, such as water for environmental needs and joint activities on solving problems associated with the shrinkage of the Aral Sea. Another region-specific peculiarity is a clear focus on water for agricultural needs, which proves upstream countries’ claim that downstream countries try to dominate the legal and institutional arrangements existing in the region. Need of the upstream countries in energy production were not reflected in the Agreement.

Conclusion

It is generally well-known that agreements on transboundary waters should be tailor-made for each basin, considering geographic peculiarities, infrastructure, positions, needs of the riparian states, agreements reached in non-water areas and other factors. However, current research was an attempt to bridge the gap in understanding the compliance between the existing transboundary treaty and international water law principles. As the principles reflected in UNECE Convention were developed as a set of unified rules which could be applied to any transboundary basin, in-depth exploration of the treaties is beneficial both in theoretical and practical terms — first for better understanding if the design of the treaty could be one of the factors affecting cooperation in the basin, and secondly — in understanding how the existing treaty could be improved.

The research demonstrated that in a basins with a treaty but with unsatisfactory level of cooperation, a treaty does not fully comply with the International Water Law principles, with that proving the hypothesis. To come to this conclusion, using the case study of Amudarya basin, it was possible to draw few important lessons. First of all, it was proven that despite the existence of the treaty, cooperation is not easy and straightforward. For example, in the basin of concern good level of cooperation was not guaranteed with the signature of the treaty. Despite the existence of the treaty signed by the vast majority of the riparian states, vast majority of scholars and practitioners agree that cooperation in Amudarya basin is unsatisfactory.

Secondly, despite more generalized and framework character of UNECE Convention, it was proven that in comparison to some regional treaties, it provides much more detailed instructions for cooperating parties. For example, despite the finding that agreement on Amudarya river is (not surprisingly) much more rigorous in terms of enforcement, it remains still quite vague and ambiguous in terms of specific actions and activities to undertake cooperation. Based on the purpose of the UNECE Convention, it could be recommended to specify clauses on the regional treaty on Amudarya river basin, similarly to the clauses of the Convention, or even in more details. One of the caveats here might be, however, that that the Convention, being initially designed for European countries, does reflect priorities of European countries, for example in water quality issues, in contrast to the other issues. Therefore, the assumption of considering the Convention as the most suitable set of IWL principles should be made explicit.

With the above, the research does not disprove arguments of Zentner (2011) that the design of the treaty affects cooperation between riparian countries. However, at the same time the research does not consider other factors which can be similarly, or to a more or to a lesser degree affect cooperation. The letter could be considered as a prospects for future research.

The methodology of the research makes it replicable in application to any other transboundary treaty in the world. The findings of this research might be useful for scholars who are interested in the issues of transboundary water cooperation, especially in legal and institutional aspects. For the basins which already have a treaty it might provide avenues for possible improvement, while for the basins without treaties it might be useful source of knowledge for identifying which aspects should be taken into account when drafting, refining, and negotiating a treaty.

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