Political and legal arrangements

After several fruitless attempts to resolve disputes, such as the 1905 British arbitration (known as the “McMahon arbitration”) and a 1939 bilateral treaty (coming out of friendly relations between Reza Shah Pahlavi in Iran and Mohammad Zahir Shah in Afghanistan), Iran and Afghanistan, based on an American proposal, created the

Helmand River Delta Commission in 1948. Focused primarily on joint fact-finding, it presented its recommendation for water allocation between the two countries in 1951.20 The commission’s representatives estimated water demands at the time for merely irrigation and domestic use, without addressing the environmental requirements of the Hamoun wetlands.

Despite Iran’s initial rejection of the commission's report, and following a period of severe drought in the downstream part of the river, the two countries signed the Helmand River Water Treaty in 1973. The agreement centers on previous recommendations that were initially rejected by Iran—namely to supply Iran with an average of 22 cubic meter per second, with an additional four cubic meter per second for “goodwill and brotherly relations” in a normal (or above normal) water year. This is about 820 MCM per year or only 8.5 percent of the average surface water availability of 9,552 MCM in the whole basin; or 14 percent of 5,661.71 MCM measured at nearby Kajaki Dam, and less than 14 percent of the overall water demand and requirement in the Sistan.21 This highly asymmetric water allocation has been one of the major sources of contention.

In order to address the conflicts over the waters of the Helmand and to implement the provisions of the treaty, Article VIII directs each party to appoint a commissioner and deputy commissioner. The first protocol to the treaty sets out the commissioners’ authority and functions.

The signing of the treaty in 1973 was widely promoted by the officials of both countries. The Afghan prime minister, Mohammad Musa Shafiq, for instance, stated that the treaty “will solve the Helmand problem” and that “another 100 years of the two nations are [not] wasted on finding a solution for this difficulty.” Similarly, the Iranian prime minister, Amir Abbas Hoveyda, pointed out that, “there is no longer any question mark in relations between the two countries.”22

However, enthusiasm by the riparian states for the treaty quickly faltered. It did not enter into force until June 1977, when the instruments of ratification were exchanged.23 The delay in ratification can be explained by the discontent of the Afghan government and parliament, which perceived Afghanistan as acting as a “water dealer,”24 and “resented ‘giving away’ what they regarded as precious Afghan water.”25 There was also disdain for the treaty by some Iranians who accused their signatory of being a “traitor.”26

The treaty remained in abeyance and no official cooperation between the countries on water-related issues took place for some 20 years due to: (1) the great political upheaval in Afghanistan as a result of the Soviet invasion in 1979, the subsequent civil war, and the US-led invasion of 2001; and (2) the Iranian revolution of 1978-1979, and the subsequent war that Iraq waged against Iran from 1980 to 1988, initiated by the Western-backed Saddam Hussein.

Then, after a period of drought, civil war in Afghanistan, and the collapse of the Taliban, the countries held the first meeting of the Joint Committee of Commissioners27 (of the HRC) in Tehran in August 2004. Subsequent meetings of the HRC continued at a rate of around two per year. To date, 20 meetings of the HRC have been held in either Iran or Afghanistan. Iranian and Afghan commissaries held their nineteenth and twentieth meetings in Tehran and Kabul from 5 to 8 January and 11-12 June 2019, respectively, during which there were calls for expanding mutual water cooperation to better implement the treaty. The HRC’s administrative structure was changed at its nineteenth meeting by affording the commissioners the higher diplomatic level of deputy ministers; this change may be understood as another attempt to strengthen the role and influence of the HRC.28

In 2017, and in parallel to a meeting of the HRC, higher-level negotiations between Iran and Afghanistan sought to establish a Comprehensive Strategic Partnership on several issues, including security and water, with an emphasis on boosting economic cooperation between the countries.29 Although the HRC has a separate identity, these negotiations are assumed to provide hope as a catalyst to promote strategic collaboration between the countries over some related Helmand problems and thus indirectly improve the HRC’s performance. However, it is too early to assess the impact of the negotiations and analyze how they might overcome impediments that emanate from new waves of anarchy in Afghanistan, such as the re-empowering of the Taliban and the rise of Daesh.

Although there might be some critics of the treaty, generally speaking, Iran is supportive at a high political level.30 Similarly, despite decades of skepticism toward the treaty in Afghanistan, it has recently received the same official political support, and has even been described by Sultan Mahmoud Mahmoudi, a former Afghan commissioner, as “the best agreement in the region and the world.”31 Both countries have recognized that recent activities of the HRC will provide a basis for the creation of a constructive dialogue, not only to implement the provisions of the 1973 treaty but also to ensure the equitable and sustainable management of transboundary waters, including the preservation of the Hamoun wetlands.32 The disputes, however, have continued in practice while both sides still accuse each other of violating their treaty obligations.

The section below will address the following questions: Why did both countries accept the treaty despite strong national resistance? For example, why did Iran agree to receive a very low amount of water compared to its demand? And why have there been changes in Afghan government’s views about the treaty?

 
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