Image source: www.globalvillagespace.com
Until now, Afghanistan has practically not used the Amu Darya due to long-lasting internal wars. In the 1980s, the Soviet Union distributed Amu Darya water, giving priority to the interests of the downstream Uzbekistan and Turkmenistan. Even after 1991, no agreement on the development of Amu Darya water was concluded between the Central Asian countries and Afghanistan. But with new canal, so-called Kosh Tepa canal, status quo in Central Asian water market is likely to change in near future. If the Taliban interim government keeps peace in the country and completes the Kosh Tepa canal as it planned, the previous balance of water distribution in the region will face serious challenges.
Geographically, Central Asia is located in the center of the Eurasian continent, far from the oceans. This means that the main source of income for the population of this region is agriculture and natural resources. Therefore, water is both a natural resource and a political power for upstream countries. According to the 2022 report of the Eurasian Development Bank (EDB), there will be a water shortage in Central Asia by 2050. The Kosh Tepa canal on the Afghan side may cause this deficit to accelerate even more.
From the perspective of downstream countries, one cannot stop himself to ask following questions:
First, to what extent Afghanistan’s right to use the Amu Darya recognized under the international law?
Second, what obligations will the Islamic Republic of Afghanistan have in relation to other countries of Central Asia in the use of Amu Darya waters?
In this blog post, I will discuss the Afghan government’s plans to use the Amu Darya and their impact on water distribution in the Central Asian region. Special focus will be a legality of Kosh Tepa canal according to regional international law in Central Asia.
Few words on Kosh Tepa irrigation canal
The construction of this canal began in March 2022. It is said to be 280 km long, 100 meters wide and 8.5 meters deep. It is assumed that this project will last for 5 years and through this, Afghanistan’s agriculture will be able to provide itself with water. The mega project is said to cost the Taliban government 680 million US dollars. Importantly, after completion, this canal will have a capacity of 650 cubic meters per second, with a capacity of 10 billion cubic meters per year. According to media reports, more than 22 km of canal works have been completed so far, and 33 million cubic meters of soil has been moved.
Impact on downstream countries
If this project is completed and commissioned by the Afghan government, according to my personal calculation, if 650 cubic meters of water per second are transferred from this canal, this means that 26% of Amu Darya waters will be diverted to the Kosh Tepa canal. This can lead to serious water shortages in the agricultural lands of the downstream countries, such as Turkmenistan and Uzbekistan.
More specifically, Afghanistan intends to take water for this canal from the upper reaches of Amu Darya. It is clear that this will cause a water shortage in the downstream regions, especially in Bukhara, Khorezm, Navoi and Karakalpakstan of Uzbekistan. In addition, it may be necessary to change or rebuild the water facilities in those areas after the water volume changes, which means additional costs.
Afghanistan’s right to use Amu Darya water
Water relations in Central Asia are legally regulated by the Agreement “On Cooperation in the Field of Management and Protection of Water Resources of Interstate Sources” (Agreement on Cooperation) adopted between the five republics of Central Asia. The Interstate Coordinating Water Management Commission (Commission) plays a key role in water resources management. The commission coordinates comprehensive and rational use of regional water resources, defines and develops and approves a long-term program of water supply.
In addition, water use in the region is regulated by the 1992 UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention). Only Turkmenistan, Uzbekistan and Kazakhstan signed this important document from Central Asian countries. Importantly, Afghanistan has not joined almost any of the above-mentioned agreements on the use of water resources in Central Asia. But they are digging a big canal from the Amu Darya, providing water to a large part of the region, and diverting a large part of the water to another direction.
However, it would be a mistake to call it a surprise. Because no one can deny Afghanistan’s right to use the Amu Darya. The non-participation of the latter in global and regional agreements does not impose any rights and obligations on Afghans in the use of water. That is, the fact that Afghans have not used water until now does not limit their rights in this regard. The reason is that most of the southern shores of the Amu Darya are located in the territory of Afghanistan.
Interests of the states in the lower reaches of the Amu Darya
The lower reaches of Amu Darya are mainly used by Uzbekistan and Turkmenistan. Afghanistan cannot be denied the use of river water, while at the same time it has no right to harm their interests. The 1992 Water Convention can be cited as the legal basis for this. In accordance with Article 9 of this Convention,
The littoral parties shall, on the basis of equality and reciprocity, conclude bilateral or multilateral agreements or other agreements that do not already exist or, where necessary, adapt existing ones to eliminate conflicts that conflict with the basic principles of this Convention. defines interactions and actions to prevent, control and reduce transboundary impacts.
To be more specific, it is necessary to take into account the water-using population, industry, and irrigation areas of the downstream countries in the distribution of Amu Darya water. For example, Afghans are currently demanding 17 million cubic meters of water from the Amu Darya, whose water is decreasing year by year, and this does not mean that they the right to receive that much water. In this regard, the cooperation of the relevant parties is desirable.
Therefore, we must recognize the right of Afghanistan to use the waters of Amu Darya, which has not agreed to any agreement on the use of water. Nevertheless, the Afghan side is obliged to refer to the principles of the Water Convention and take into account the interests of the coastal countries. But the Afghan government may not recognize any neighbouring country’s rights to use the Amu Darya. What happens next? In this case, in accordance with Article 22 of the Convention, the disaffected party or parties may appeal to the International Court of Justice.
But what if Afghanistan does not want to join the agreements? What if they do not agree to the international court? They have the right to do so. Even if two countries suffer from this, will we give them 17 million cubic meters of water?
Here we rely on other norms of international law. These are, first, international customary law. According to it, usually, sovereign states must agree to be bound by a certain treaty or legal norm. However, customary international law is sufficiently widespread internationally that it does not need the consent of states to be binding. Only in such cases, the state could not object to the law. That is, silence here means consent. So the two countries should comment on Afghanistan’s actions. Or, if Afghanistan states in the international arena that it has not used the river for many years and now wants to pay a lot of water, then the above international customary law can be said.
Secondly, fair and reasonable use and participation in Article 5 of 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses. It is written that the countries of the watercourse must use the international watercourse fairly and rationally in their territories.
Thirdly, the most controversial article 7 of 1997 convention mentions the duty not to cause great harm. Watercourse states shall take appropriate measures to prevent serious harm to other watercourse states in the use of international watercourses in their territories. If there is serious damage to another watercourse, in the absence of such an agreement, measures will be taken taking into account the provisions of this law. Therefore, even if Afghanistan says that it will not sign a contract, it cannot avoid responsibility. If so how can liability be determined? In accordance with Articles 5-6 of this Convention, ways to eliminate damage, or mitigation and, if necessary, compensation, will be considered in consultation with the injured state.
In this blogpost, I analysed the rights and obligations of the Islamic Republic of Afghanistan in using the Amu Darya. The analysis revealed the following. First, although Afghanistan has hardly used the Amu Darya for many years, no one can veto the right of Afghans to use the river’s water. Secondly, I looked at what legal norms exist in Central Asia and the international arena regarding the use of river waters. I found that the Afghan side has not yet signed an international agreement on Amu Darya water with other Central Asian countries. This does not mean that Afghans can use the water of the river as they wish, and as I have proved, they have to count with other countries in the use of the river. Thirdly, my analysis showed that the necessity to conclude a multilateral agreement between countries on the use of Amu Darya should be on the agenda. If a dispute arises regarding the use of water, the disaffected parties should apply to the International Court of Justice. If we look at this situation from a political point of view, the Afghan side probably does not want to deteriorate its relations with its closest neighbouring countries. My last conclusion is that the situation itself shows that downstream countries of Amu Darya shall introduce new technologies in agriculture so they lessen the effect of Kosh Tepa canal to their economies and population.
Cite as: Shahriyor Abduboqiyev, “Legality of Taliban’s new Qosh Tepa canal from Amu Darya”, Uzbekistan Law Blog, 10.03.2023.