04 May The Qosh Tepeh Canal and Afghanistan’s Water Right in Amu Darya
[Ikramuddin Kamil holds an LL.M and MPhil in International Law from South Asian University. He currently serves as an Assistant Professor at Bakhtar University.]
Uzbekistan has recently requested to hold talks with Afghanistan about managing the use of the Amu Darya and, in particular, it proposed technical assistance for the construction of the Qosh Tepeh Canal. Uzbekistan, though, did not protest against the construction of the Canal; however, it implicitly stated that the current design of Canal would nevertheless harm its established and legally protected use.
On March 30, 2022, Mulla Abdul Ghani Baradar, the Deputy Prime Minister of the current Afghan government, inaugurated the Qush Tepeh Canal. The canal spans a length of 285 kilometers and has a width of 152 meters and a depth of 8.5 meters. The canal’s construction, which is expected to be completed in three phases over five years, will allow Afghanistan to divert up to 650 cubic meters of water per second from the Amu Darya, a river shared with Central Asia. Currently, 72 percent of the first phase, which covers a distance of 108 kilometers, has been completed. While this project has significant implications for Afghanistan’s water supply and irrigation, it may also affect neighboring countries that rely on the Amu Darya.
As Afghanistan seeks to expand its water infrastructure with the construction of the Qosh Tepeh Canal, questions arise over the country’s right to develop such projects under international law. The right to develop water resources over a shared river is a complex issue that involves balancing the needs of developing countries with the interests of upstream and downstream States, as well as the protection of the environment. This article examines Afghanistan’s legal rights and obligations under international law as a late developer in constructing the canal.
Afghanistan and the Amu Darya Water Management: From Exclusion to Inclusion
Amu Darya’s water allocation for agriculture is a legacy of the Soviet Union. The former USSR allocated the river’s water among the four Central Asian Republics (CARs), namely Tajikistan, Uzbekistan, Turkmenistan, and the Kyrgyz Republic, through Protocol 566. Protocol 566 presumed that Afghanistan would divert 2.1 cubic kilometers of water from the Amu Darya Basin. After their independence in 1991, the CARs agreed to retain the allocation quotas in the Almaty Agreement. Afghanistan, on the other hand, was excluded from regional water-sharing treaties and water management mechanisms.
Afghanistan was excluded from regional water-sharing agreements and organizations due to various reasons. The World Bank report indicates that Afghanistan can only divert 5 to 6 cubic kilometers amount of water, less than 2%, and this would take two decades to achieve. Thus the neighboring countries in the past did not feel a sense of competition to reach an agreement with Afghanistan. Moreover, decades of instability and weak governance in Afghanistan contributed to the exclusion. Additionally, stakeholders in the Amu Darya basin held different values and interests, with separate laws defining water as a national wealth and not a public or common good. The member States of the Almaty Agreement decided on issues through consensus and did not want to alter their existing institutional framework by including Afghanistan.
The construction of the Qosh Tepeh Canal has transformed the equation in the Amu Darya basin. The canal, originally planned in the 1970s, provided Afghanistan with the means to divert a significant amount of water from the Amu Darya. Therefore, downstream countries like Turkmenistan and Uzbekistan have proposed technical negotiations with Afghanistan over the use of the Amu Darya. This could potentially lead to Afghanistan’s inclusion in regional water-sharing agreements or the creation of a new legal framework. Despite past resistance from Central Asian countries, Turkmenistan and Uzbekistan’s willingness to engage in talks is a positive step towards promoting regional cooperation in sustainable water management.
Qosh Tepeh Canal and International Law
Afghanistan has never been party to any agreement that governs the allocation of Amu Darya. In the absence of any treaty, the principles of customary international law to which Afghanistan is not a persistent objector will apply to Qosh Tepeh Canal. The doctrine of “equitable and reasonable utilization” is the general rule of law for the determination of the rights and obligations of states in the field of international watercourse law. This principle requires watercourse states to utilize international water in an equitable and reasonable manner and to participate in the use, development, and protection of an international watercourse in an equitable and reasonable manner. The “no-harm rule” requires states not to cause significant harm to other states. More precisely, riparian countries (both upstream and downstream) should not use a shared watercourse in way that cause damage and undesirable impact to co-riparian countries.
The principle of equitable and reasonable utilization gives all riparian states an equal right to utilize a shared watercourse in an equitable manner, which means that not all new uses by late developers necessarily violate the no-harm rule. Essentially, under this principle, each riparian State has a right to an equitable and reasonable share of shared watercourse. Therefore, Afghanistan as an upstream State in the Amu Darya basin may initiate new uses of shared water resources, such as building dams, canals or diverting water for agricultural purposes, as long as it is consistent with the principle of equitable and reasonable utilization, even if the result of such uses cause harm to downstream State(s).
Now the question is that, is only the upstream riparian State(s) harm their downstream counterparts, as it is often assumed. Thus, based on this assumption, the obligation not to cause harm is a one-way obligation. It is indeed true that an upstream State(s) may cause harm to downstream State(s) through various ways, such as pollution, building a dam or a canal that diverts the water of the shared river and which adversely affects the flow of the river or by leaving insufficient water for the ecology of the river. Similarly, (as discussed here), the no-harm rule, on its face, seems to impose most of the obligations on the upstream state and gives most rights to the downstream riparian State(s). However, the idea that only the upstream State(s) can cause harm, is a misconception. Downstream riparian State(s) can also harm upstream State(s) by foreclosing future uses through their prior or past uses and claiming rights to such water. The Blue Nile Basin case better exemplifies it, where Egypt and Sudan consistently argue in favor of their historical rights and strongly protest against the construction of the Grand Ethiopian Renaissance Dam (GERD) by upstream Ethiopia. The downstream Egypt and Sudan arguments essentially foreclose the present and future use of upstream Ethiopia. Though, in the case of Qosh Tepeh Canal, the CARs do not deny Afghanistan’s right to an equitable and reasonable share in the river, however, to what extent Afghanistan can divert water from the Amu Darya could become a leading cause of tension between Afghanistan and CARs.
To summarize, the construction of the Qosh Tepeh canal is not a new water use but rather a restoration of Afghanistan’s previous level of water use and implementing its decades old plans. The canal, which was originally planned in the 1970s, aims to restore Afghanistan’s equitable share in the Amu Darya and address the decreasing use of transboundary waters over the past few decades. By doing so, Afghanistan is not initiating a new use of water but rather fulfilling its historical water usage and management plans. In addition, the customary international law principles apply both to Afghanistan and CARs. CARs use of Amu Darya should also be equitable and reasonable and should not to cause harm to Afghanistan. The CARs are also bound to notify Afghanistan of planned measures over the shared river, which they have failed to do in the case of Amu Darya. Finally, a strict application of the no-harm rule can lead to a situation where every new activity regarding the use of water by a later developing upstream state, (such as Afghanistan) will be considered a violation of the no-harm rule as it interferes with established uses of the downstream state and causes harm. Such a strict interpretation is neither supported by state practice nor by case law.