By Nazim Samoon
In March 2022, Afghanistan began construction on its largest ever irrigation infrastructure project, the QushTepa Canal. The canal spans over 285 km and boast a water discharge rate of 650 cubic meters per second, enabling it to irrigate up to 550,000 hectares of land. Located in northeren Afghanistan, on the Amu River Basin, this marks the country’s first-ever large-scale irrigation initiative.
The Amu Darya is considered the most crucial river for Afghanistan and Central Asian countries from a socio-economic, ecological, and political perspective, with nearly 80 million people depending on its water. The river has a catchment area of 309,000 square kilometers, and spans 2,540 km across Afghanistan, Tajikistan, Turkmenistan, Kyrgyzstan, and Uzbekistan with 1,250 km forming a common border between Tajikistan, Uzbekistan, and Turkmenistan.
In terms of geography, 25% of the Amu River basin falls within Afghanistan’s territory, contributing 28% of the river’s water production. However, Afghanistan consumes far less water than its co-riparian neighbors, Uzbekistan and Turkmenistan, currently utilizing only 6.25% of the total 67 bcm/year of water from the Amu River, which is approximately 5 billion cubic meters annually. In contrast, Uzbekistan (41.25%) and Turkmenistan (28.75%) utilize the most water, while Tajikistan (9.4%) mostly uses it for electricity production.
During the reign of President Muhammad Dawood Khan in the 1970s, the Afghan government made its first attempts to utilize the water of the Amu River and build irrigation and hydro power projects, including the QushTepa Canal in the north. During a trip to Moscow in 1977 to raise funds for the project, he discussed the canal with Soviet leaders. However, the project was never implemented due to the 1978 coup d’état, prolonged political instability, wars, and a lack of funds.
If the QushTepa Canal project is implemented according to the plan, it has the potential to be a game changer in the Amu Darya River Basin. The project’s main advantage is its ability to help Afghanistan balance its current high water production in the Amu with its low consumption rate, leading to a relatively higher consumption. This will give Afghanistan a better position in future hydropolitical relations with central Asian countries and ensure greater water security for the country.
This article examines the potential claims and concerns of downstream riparian countries, specifically Uzbekistan and Turkmenistan, regarding Afghanistan’s QushTepa canal project on the Amu Darya River Basin. The debate centres on theoretical and normative aspects of international water law pertaining to the rights of late-developing upstream states. As early developing downstream states, Uzbekistan and Turkmenistan are presumed to have violated the fundamental principle of international customary water law, which requires states to cause no harm. If this is the case, Afghanistan will be in a better position to reciprocate and defend its future uses of Amu Darya water.
The Legal Regime of Amu Darya River Basin
The Amu Darya river basin is an international watercourse and any new project proposed by any co-riparian state within the basin would be a politically sensitive issue, as there is no established legal and cooperative framework between all co-riparians. The current legal regime governing the basin is intricate and complicated, as it involves the shared use of the river by five co-riparian states: Afghanistan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan.
During the Union of Soviet Socialist Republics (USSR), the legal regime of the Amu Darya River Basin (ADRB) was defined between three different users: Afghanistan-USSR and USSR-four union republics, namely Kyrgyzstan, Tajikistan, Uzbekistan, and Turkmenistan. Afghanistan and USSR concluded two agreements and one protocol in 1946 and 1958, which mainly dealt with the management of frontier issues, navigation, and the Joint Execution of Works for the Integrated Utilization of Water Resources but did not address water sharing.
In the absence of a specific water-sharing agreement, the principles of equitable and reasonable utilization, as well as the obligation not to cause significant harm to other riparians, as established in customary international law, must be followed. These fundamental principles of international water law are enshrined in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC), which serves as the primary international legal instrument for the governance of shared transboundary water. Article 5 (1) of the UNWC requires all riparians to use an international watercourse in an equitable and reasonable manner. Additionally, the Convention includes a separate article on the obligation not to cause significant harm, which requires all watercourse states that, in utilizing an international watercourse in their territories, all appropriate measures should be taken to prevent the causing of significant harm to other watercourse states. However, there is confusion among some states and water practitioners, both legal and non-legal, regarding the relationship between the principles of equitable and reasonable utilization and the obligation causing no harm. This has led to misunderstandings regarding the rights and obligations of upstream and downstream riparians. Downstream riparians generally rely on the obligation not to cause harm to protect their existing uses and prevent upstream riparians from undertaking projects that could harm them. They require notification of any upstream activity that could affect their interests. While international water law does not limit the requirement of notification to downstream, most downstream riparians believe that notification is their exclusive right and does not apply to upstream states. However, a significant body of literature on the subject, suggests that upstream riparian states can also be negatively impacted by the downstream countries of their development. Thus it is important to recognize that harm can flow in both directions, and downstream countries can also harm upstream nations by foreclosing future uses of upper riparians.
The Foreclosed Future uses of Afghanistan
As previously discussed, international water law mandates that all states sharing an international watercourse must utilize it in an equitable and reasonable manner and take necessary measures to prevent significant harm to other states. Failure to consider the principle of causing significant harm may result in downstream riparian states unilaterally developing the watercourse, foreclosing upstream states future uses, which are still developing. Such foreclosure happens when a downstream state unilaterally develops the watercourse without consulting upstream states and subsequently declares that the future plans of upstream states are unacceptable due to harm caused to pre-established downstream uses. As a result, the upstream states are denied available use of water in the future under the principle of equitable and reasonable utilization, which has already been foreclosed by the downstream states. Downstream states invoke “prior use rights” and the principle of causing no harm to justify their actions.
In this context, it can be argued that Uzbekistan and Turkmenistan, as early-developing downstream countries, have violated the fundamental principle of international water law requiring states to cause no harm. Their unilateral actions have prevented Afghanistan from utilizing the Amu Darya River basin for future projects and enjoying equitable and reasonable uses.
Under international water law, Afghanistan has the right to claim its foreclosed uses by initiating irrigation and hydropower projects on the river to ensure its equitable and reasonable utilization. Therefore, under the principle of countermeasures in public international law, a violation of an obligation under IWL by one state can lead to a proportional breach of a corresponding obligation by another state, as long as the initial violation is a ‘serious or material’ breach. This means that if Uzbekistan and Turkmenistan have breached the obligation to ensure equitable and reasonable use in a “serious and material” way, upstream Afghanistan may have the legal right to proportionally breach the no-harm obligation. The International Court of Justice (ICJ) recognized this approach in the Gabcikovo-Nagymaros Project case between Hungary and Slovakia in 1997, where the court held that “the violation of other treaty rules or of rules of general int
ernational law may justify the taking of certain measures, including countermeasures, by the injured State.”
Assuming that downstream Uzbekistan and Turkmenistan have committed to violations of the fundamental principle of international customary water law, cause no harm, Afghanistan would be in a better position to reciprocate and take countermeasures to restore Amu Darya’s future uses.
Nazim Samoon is a researcher and expert in transboundary water governance. He specializes in writing about water-related issues from legal, political, and policy perspectives.
The views expressed in this article do not necessarily reflect Pajhwok’s editorial policy.