The Helmand River Dispute: International Legal Perspectives on the Afghan-Iranian Border Conflict

Photograph: Karla Marshall, ‘Helmand River with the Boghra Irrigation Canal (Nahr-e Bughra) in the middle distance and the town of Gereshk (Grishk) in the far distance, Helmand Province.’ (2011)

[Laurence Teillet is a PhD Candidate at Nottingham Law School, focusing on environmental activists prosecutions and convictions for piracy. With LLMs in International and Comparative Environmental Law, and Natural Resources Law, her research interests primarily lie in International Environmental Law and the Law of the Sea.]

[Ahmad Ali Shariati is a PhD Researcher at the University of Sussex’s School of Law, Politics, and Sociology. With a background in Public International Law and International Commercial Law, his interests include International Climate Change, International Energy Law, and Corporate Governance. His doctoral research centres on States’ responsibility for greenhouse gas emissions.]

The Helmand River is a historic waterway spanning over a thousand kilometres, flowing from southwestern Afghanistan to eastern Iran. This river holds significant ecological importance as it nourishes the Hamoun wetland and the Goud-e Zareh, a salt lake situated in the Sistan endorheic basin. Additionally, both Iran and Afghanistan heavily rely on the Helmand River for drinking water supply and agricultural irrigation.

Unfortunately, Iran and Afghanistan have been embroiled in disputes over the utilisation of the Helmand River for many years. Although a treaty was signed in 1973 to address the sharing of this cross-border resource, the expected peace and cooperation were not achieved. Each party accused the other of disregarding the provisions outlined in the agreement.

In 2022, following the takeover of the Afghan government by the Taliban, the Taliban redirected the flow of the Helmand River to prevent it from reaching Iran and the Hamoun wetland. This diversion not only posed a grave threat to the region’s ecological balance but also severely strained the relations between Afghanistan and Iran. Reports from various news sources indicated a “serious deterioration” in relations, an “emerging conflict,” “threats to regional stability,” and even “armed combat for access to water.” The conflict deescalated, and the redirection of the Helmand River ceased following discussions between Iran and the Taliban, during which both parties made commitments to uphold the provisions of the 1973 Treaty.

Figure 1: Redirection of the Helmand River by the Taliban. Mohsen Nagheeby and Jeroen Warner, ‘The 150-Year Itch: Afghanistan-Iran Hydropolitics Over the Helmand/Hirmand River’ (2022) 15 Water Alternatives, p. 569

Regrettably, however, these warnings proved to be prophetic. A tragic incident unfolded on 27 May 2023 at the border between Afghanistan and Iran near the Helmand River. The clash resulted in the loss of two Iranian border guards and one Taliban fighter. Two Iranian civilians were also injured. Each side involved in the conflict denies responsibility for initiating the violence: the Taliban de-facto interior ministry spokesman asserted that Iranian border forces initiated the gunfire towards Afghanistan and faced a retaliatory response, whereas Iran accused Taliban forces of firing the first shots.

The case of the Helmand River serves as a compelling example of the challenges associated with transboundary resources. In this blog post, we will delve into three key aspects. Firstly, we will provide an in-depth explanation of the 1973 Treaty between Iran and Afghanistan, highlighting its significance and intricate nature. Secondly, we will explore the international legal framework pertaining to shared water resources, shedding light on the relevant principles and agreements. Finally, we will examine the potential role of international law in regulating and preventing incidents like the recent one from occurring in the future. Examining the escalating conflicts related to transboundary water resources is crucial and time-sensitive, as they are expected to rise in frequency – the recent disagreement between Ethiopia and Egypt regarding access to the Blue Nile serving as another compelling illustration. Legal scholars need to proactively seek and propose pathways for peaceful resolution of such disputes before they intensify.

The Afghan-Iranian Helmand-River Water Treaty

The 1973 Treaty, although concise, contains intriguing provisions for the joint management of the Helmand River. Article 2 establishes the minimum quantity of water that Afghanistan must allow to flow into Iran during normal water years. Article 4 takes into account the potential impact of climatic factors on the water flow, allowing for adjustments accordingly. Article 5 specifically addresses the rights and responsibilities of Afghanistan and Iran as upstream and downstream countries of the Helmand River. It provides that Afghanistan agrees not to take any actions that would completely or partially deprive Iran of its water rights, while Afghanistan retains full discretion over the remaining water and its utilisation. Iran, on the other hand, agrees not to make claims for water in excess of the specified amounts in the Treaty, even if additional water could be beneficially used. Lastly, Article 11 addresses extreme drought or force majeure situations, requiring immediate consultation between the parties to develop and implement necessary plans. The second Protocol to the 1973 Treaty envisages the peaceful settlement of disputes, through good offices or arbitration.

However, the effectiveness of the 1973 Treaty is being tested in light of the harsh realities both countries face. Afghanistan and Iran are grappling with the impacts of climate change, including recurring droughts, which have profound consequences on their populations. Access to freshwater resources has become a critical concern, not only for sustaining livelihoods but also for securing strategic positions of power in the region.

The vulnerability of the Afghan population to such climate-related disasters is immense, given the limited financial resources available for developing effective adaptation strategies. Moreover, Afghanistan’s heavy reliance on the primary sector, with agriculture accounting for 42.5% of jobs and 25.8% of GDP in 2019, adds to its vulnerability to climate impacts. The recurring droughts between 1997 and 2007, for instance, resulted in a significant decline in livestock populations, while the 2017-2018 drought led to a 50% reduction in harvests. Insufficient water resources and weak irrigation systems further compound the challenges, making the production of essential food items unpredictable and jeopardising the livelihoods of millions of farmers.

Similar risks are also evident in Iran, where access to clean and safe water is identified as the country’s primary vulnerability factor by the World Health Organisation, particularly for those residing in drought-prone areas. Research consistently indicates that under all climate scenarios, Iran’s overall crop yield is projected to decline. Furthermore, climate change has already led to a reduction in water resources across various regions of the country. With diminishing precipitation and rising temperatures, the demand for irrigation water is expected to increase significantly while available water resources will decrease, ultimately posing a severe threat to food security.

The 1973 Treaty is ill-equipped to address the current reality of evolving climate conditions. Although it incorporates provisions to consider climatic events, droughts, and force majeure, it lacks specific provisions regarding the development of adaptation measures in response to the changing climate around the Helmand River. This raises the question of the role of international water law in addressing this crucial aspect.

International Water Law: the 1997 UN Watercourses Convention and the 1966 Helsinki Rules

In response to the evolving utilisation of international watercourses for purposes beyond navigation, such as irrigation, industry, and recreation, and the growing demand for freshwater due to population growth, nations have found it imperative to develop a legal framework to govern the utilisation of transboundary freshwater resources. Recognising this need, the International Law Association (ILA) has played a pivotal role in drafting two key conventions on this matter: the Helsinki Rules of 1966, which provide guiding principles for the use, management, and resolution of disputes concerning international rivers, and the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (hereafter UN Watercourses Convention).

It is worth noting that neither Iran nor Afghanistan are parties to the UN Watercourses Convention. Nevertheless, the examination of the Convention’s provisions remains relevant as the treaty was drafted based on pre-existing rules of customary international law concerning the non-navigational use of international watercourses.

The legal framework governing transboundary freshwater resources is anchored in several key principles.

Firstly, international water law emphasises the principles of equitable and reasonable use and participation. It asserts that international watercourses should be utilised and managed by states in a manner that strives for optimal and sustainable utilisation and benefits, while ensuring adequate protection of the watercourse. Various factors come into play when determining whether the use of a watercourse is equitable and reasonable. These factors encompass geographical, hydrographic, ecological, and economic considerations. Article 6 of the UN Watercourses Convention provides further elaboration on these factors. It is important to note that there is no hierarchical order amongst these factors, as the objective is to achieve a satisfactory balance. However, in cases of conflicting uses, special attention must be given to meeting the basic human needs associated with the watercourse.

Secondly, Article 7 of the UN Watercourses Convention highlights the legal framework concerning cross-border damage. The origins of cross-border environmental law can be traced back to the landmark Trail Smelter arbitration case between Canada and the United States in 1941. It affirmed that no state has the right to utilise its territory in a manner that causes damage to another state or its property within that territory. This decision established the customary nature of international liability for transboundary environmental damage, a principle reiterated in subsequent international jurisprudence.

Returning to the UN Watercourses Convention, the interaction between Articles 6 and 7 may give rise to questions. It remains unclear whether a state’s exploitation of a transboundary water resource is permissible as long as its overall participation in the resource is equitable and reasonable, or if the “no harm” rule is absolute and prohibits any interference with existing uses. Boisson de Chazournes argues that the former hypothesis should be adopted, suggesting that interference is authorised as long as it meets the criterion of fair and reasonable use. However, there are significant scholarly disagreements on this point.

While transboundary freshwater law may not be revolutionary in terms of environmental protection, it does incorporate innovative mechanisms. Of particular interest is the concept of justified interference, which, according to Boisson de Chazournes, allows for intervention based on the presence of a shared interest. Under this interpretation, in the event of another unilateral redirection of the Helmand River by the Taliban, Iran could potentially argue that interference in Afghanistan’s management of the Helmand River’s flow is justified by its right to meet the basic human needs of its population. However, resorting to unilateral actions and sparking conflicts in such an unstable region is not a viable solution, in our opinion.

Navigating Scarce Water Resources in Tense Regions: Exploring the Potential of International Climate Change Law to Prevent Further Conflicts

International water law establishes that states have a fundamental obligation to ensure fair and equitable access to shared water resources. While there is no strict hierarchy among water uses, priority should be granted to meeting essential human needs. However, the challenge arises when both countries are grappling with meeting these basic needs.

Although the Taliban’s actions have undeniably violated the terms of the 1973 Treaty by obstructing Iran’s access to its rightful share of water resources, it is crucial to acknowledge that both countries are grappling with severe water scarcity. In such circumstances, conflicts are bound to arise as both states prioritise meeting the basic needs of their respective populations.

Given the current circumstances, it can be argued that international water law may not be the most effective approach to address and prevent further conflicts. However, we propose that international climate change law could offer relevant solutions and obligations for states, encompassing both climate mitigation and adaptation measures.

The international climate regime currently lacks clear and binding obligations for states to undertake ambitious measures for climate mitigation and adaptation. Moreover, the absence of certain countries, such as Iran, from the Paris Agreement, the latest implementation treaty of the UN Framework on Climate Change, raises questions about the crystallisation of customary international law regarding aspects of the climate change regime. To address this uncertainty, the United Nations General Assembly (UNGA) has called upon the International Court of Justice (ICJ) to provide an advisory opinion on states’ responsibilities concerning climate change. The UNGA resolution specifically requests the ICJ to clarify the obligations of states under international law in safeguarding the climate system from anthropogenic greenhouse gas emissions.

In order to prevent conflicts in water-sensitive regions, it is crucial for the ICJ to assert states’ obligations to implement credible adaptive measures. This includes clearly defining the responsibilities of developed states to contribute to the financing of such measures. Given the persistent presence of droughts and water scarcity in Afghanistan and Iran, it is imperative to focus on the development of drought-resistant agriculture, the modernisation of irrigation systems, and the effective protection of local ecosystems. Furthermore, in order to reduce the over-reliance on the depleting Helmand River, it is crucial to prioritise the financing and development of reliable water supply infrastructure, providing fresh water from other sources in vulnerable regions. These steps toward a more sustainable management of the Helmand Region have the potential to foster a peaceful sharing of resources between Iran and Afghanistan.

Unfortunately, climate change adaptation has not been a central topic in discussions between the two countries to resolve their disagreements over the management of the Helmand River. Access to water has become a tool for diplomatic negotiation, forcing Iran to enter in relations with the de facto government of its neighbouring country. Some observers have reported that water has been used as a form of currency, traded for oil, gas, or electricity from Iran. This approach to resolving water conflicts is clearly unsustainable in the long term.

The establishment of a robust and coherent international climate change regime, in conjunction with the existing framework in international water law, may not provide a definitive solution to all challenges, but it can foster a more harmonious sharing of transboundary water resources, promoting cooperation and reducing conflicts.