"Legal Aspects of Inter-State Cooperation in Allocation and Management of Water Use"
Source: DIAGNOSTIC REPORT ON WATER RESOURCESIN CENTRAL ASIA / http://www.cawater-info.net/library/eng/water-eng.pdf
Improving the efficiency of international legal regulation of water relations among the Central Asian countries is at present a key issue. It requires new approaches to inter-State negotiations on water use. Multilateral and bilateral agreements taking into account norms of international water law and specific inter-State relations in the region, national standards of law, requirements and interests ofcountries should serve as the legal framework for regional water relations. Several regional agreements listed in section A of this report, dealing with issues of water use and water allocation and related organizational issues, are currently in force. Despite the conclusion of regional and bilateral inter-State agreements, it is in this field that there remain the most acute contradictions calling for special attention. They reflect the drawbacks of the existing international legal framework and substantial differences in the priorities of the Central Asian
countries, and in their approaches to the legal regime of transboundary water bodies in the region. There is a view, voiced in particular by Kyrgyzstan and Tajikistan, that at present, in the context of regional cooperation, the problems of saving the Aral Sea quite often prevail over the economic interests of individual countries of the region. There are also differences of opinion regarding the long-term projections of water use - it is argued that they do not adequately take into account the dynamics of population growth and the resulting necessity to increase water use in order to meet drinking water, agricultural, industrial and other needs. The current water allocation system was established under the USSR within the unified framework of economic relations when the water resources were allocated asymmetrically to favour the development of irrigation farming in downstream countries. Water regulating facilities were constructed on the territories of the upstream countries to supply water to the lower reaches. Development of irrigation farming in the upstream countries was reduced to a minimum – in compensation, they got energy resources, agricultural and industrial products. After the emergence of sovereign countries in Central Asia, the former principles of water allocation stayed in force yet the upstream countries were deprived of the previous compensation. Kyrgyzstan and Tajikistan believe that the water allocation system in the region is inequitable and causes them serious harm as it does not make it possible for them to, firstly, develop irrigation farming to satisfy their food requirements and, secondly, use the system of hydropower stations in an optimal mode to cover winter requirements for electricity.
In this connection, there are proposals with regard to the need for concluding new long-term inter-State agreements based on new principles and mechanisms of water allocation among the Central Asian countries taking into account their interests. Among the most hottest issues is the problem of recognizing the proprietary right of each country to the water bodies on its territory and the water resources contained therein. These disagreements became most conspicuous with the adoption of the Law on the inter-State use of water bodies, water resources and water management facilities in Kyrgyzstan in June 2001, which
evoked an ambivalent response in the other countries of the region. This Law proclaimed a foreign policy of Kyrgyzstan based on the principle of paid water use in water relations with other countries. The existence of historical conflicts over water-related issues among the countries in the region is the reality one should bear in mind in the identification of compromise solutions that would take into account the interests of all the Central Asian countries. Settlement of issues where the views are conflicting through negotiations aimed at reaching mutually advantageous agreements is the only possible approach. Overall, there is general consent about the need to analyse the new situation and draw up new principles of water resource management. Among the international legal measures proposed for adoption by the countries, the following may be emphasized:
Harmonization of regional and national legal norms;
Development of standards and procedures for the use and protection of inter-State waterresources, water bodies and water management facilities, including a more precise assessment of the water volumes that can be withdrawn from water sources without causing harm to nature;
Development of procedures for the settlement of water disputes, including arbitration;
Joint control of the implementation of commitments assumed by each country;
Development of unified approaches to liability for damage and to assessment of the cost of damage caused by water management activities, and procedures for the reparation of damage;
Development of procedures for the implementation of joint water management projects;
Development of procedures and conditions for the exchange of information and operational mutual notification of accidents, floods, other technological and natural disasters in water bodies and water management systems;
Development of a legal mechanism for the implementation of the polluter pays principle, in combination with the establishment of a procedure for cost-sharing for water conservation measures among the countries concerned;
Development of legal, economic and organizational mechanisms for the execution of work and services in water flow regulation, flood control, shore protection, water supply by individual countries for the benefit of other countries in the region; - More precise definitions of functions and authorities of national and regional bodies;
Clarification of the status of the personnel of regional bodies. Separately, the following regional and subregional agreements, many of them in different drafting stages, would require finalization and possible adoption, including agreements on:
The strengthening of the organizational structure of management, protection and development of transboundary water resources in the Aral Sea basin;
The establishment and functioning of national, watershed and regional databases on the integrated use and protection of water resources in the Aral Sea basin;
Environmental approaches to water resource management;
The main principles of joint use of transboundary waters in the Syr Darya basin;
The establishment of a water and energy consortium;
Regulations on the funding of the ICWC executive bodies, and others.
The views of potential parties to these agreements differ both on the many fundamental issues relating to the subject matter and on the feasibility of certain agreements. This is because not only do their national interests differ, but the draft agreements proposed by the different parties are of a framework character and do not address some vital aspects of inter-State cooperation.