Legal mechanisms for transboundary water management

This section discusses, first, legal mechanisms for water allocation, then legal mechanisms for the water-energy nexus. We have already mentioned the regional agreements and joint declarations that reflect the political commitment to cooperate on water. However, from a legal perspective, many of the agreements that form the basis for transboundary water management and the work of IFAS do not contain clear provisions relating to equitable and reasonable use of water resources, the obligation not to cause significant harm, or detailed procedural obligations with respect to notification, consultations, and negotiations; they are either of a merely declarative nature or lack effective mechanisms to ensure their compliance.

First, in the 1992 agreement on cooperation in joint management, use and protection of interstate sources of water resources, the five Central Asian states agreed to keep in place the quota system for water allocation established by the Soviet Union until a new strategy was developed, and founded the Interstate Commission for Water Coordination (ICWC).¹² These quotas are based on the Soviet plan for the allocation of water resources of the Syrdarya (1982) and of the Amu-darya (1987)—the latter one not taking into account Afghanistan as a major upstream riparian.

As can be seen in Table 11.2 above, this system allocated water mainly for the irrigation needs of downstream countries. The main reason was to provide food security for the growing population and boost cotton production. Water allocation for the (limited) irrigation areas in upstream countries is marginal and has therefore been contested by the upstream countries.¹³ Afghanistan is not considered at all, and while development efforts with potentially increased water usage in Afghanistan are still limited today, they might increase in the future. Since independence, the countries made several attempts to create a new, mutually acceptable arrangement that would govern the

Table 11.2 Water allocation quotas in the Aral Sea Basin, excluding Afghanistan

Source: Alfred Diebold and Jenniver Sehring, From the Glaciers to the Aral Sea: Water Unites (Trescher Verlag, 2012).

use of transboundary water resources. They produced significant research and data and involved leading Central Asian and international experts, but a new allocation mechanism has never been created. Nevertheless, formal legal mechanisms are only one part of the rules. Not seldom, cooperation—e.g., on water releases during drought times— is based on informal arrangements between water managers across borders that sometimes counteract official policies.¹⁴ In this respect, the ICWC meetings provide a platform for dialogue and sometimes important informal arrangements that ensure water supplies are made at their margins. This supports again the argument that the existence of such platforms is a value in itself.

Second, besides the question of water allocation, the reconciliation of the interests of the agriculture and energy sectors is the other major issue in the Aral Sea Basin to be tackled. As explained above, the unified energy system of the Soviet Union broke down after independence, and upstream states have increasingly been operating the dams for hydropower generation, which means water is increasingly being released in winter instead of in summer.

A positive example for a new legal mechanism was the 1998 agreement on water-energy-exchange at the Syrdarya: it regulates that Kyrgyzstan discharges water from the reservoirs in summer for the downstream states Kazakhstan and Uzbekistan, and these deliver energy fuels to Kyrgyzstan in winter, so that it does not need to produce hydropower. However, it was negotiated outside the IFAS framework and after a few years was not effectively implemented anymore.¹⁵

In the context of new dam constructions on the tributaries of the Amudarya and Syrdarya, the issue of hydropower has been excessively politicized. The massive Rogun hydropower project on the Vakhsh River, a major tributary of the Amudarya, led to increasing tensions between Tajikistan and Uzbekistan, as did, to a lesser extent, the plans around the Kambarata Cascade in the upper Syrdarya/Naryn River in Kyrgyzstan. In the case of Rogun, the World Bank facilitated independent technical, socioeconomic, environmental, and social impact assessment studies and regional consultations. IFAS representatives took part in these discussions, but IFAS did not play a leading role in addressing the issue. The tensions eased after a change of government in Uzbekistan in 2016, with the new president ready for dialogue and consideration of mutually acceptable compromises. One visible new effort was the proposal of the president of Kazakhstan at the IFAS Summit in Turkmenbashi in 2018 to establish a Water-Energy Consortium for Central Asia.¹⁶ It remains to be seen if and how it will materialize. In order to understand why this crucial water issue was hardly

Prolonging or resolving water conflicts 235 proactively addressed by IFAS, we need to look at the institutional mechanisms and their constraints.