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International Water Law in Central Asia: The Nature of Substantive Norms and what Flows from It

Published online by Cambridge University Press:  06 September 2011

Dinara ZIGANSHINA
Dinara ZIGANSHINA*
Affiliation:
University of Dundee, Scotland, United Kingdom
*
[email protected]
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Abstract

Water security issues arising from the Central Asian states’ heavy reliance on, and competition over, the shared waters of the Aral Sea Basin have attracted urgent political and academic discussion. However, any analysis of the role that international law plays in addressing these substantive complex problems remains incomplete and imprecise. This article sets the stage for a deeper understanding of international law and of its potential operation in the context of the transboundary waters in the Aral Sea Basin. It seeks to explore the substantive norms operating in the field, namely, the rule of equitable and reasonable use, the no-harm rule, and obligations relating to environmental protection, with a view to understanding how these substantive norms work and ascertaining what conduct is required of the states with respect to their shared watercourses.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 1 , January 2012 , pp. 169 - 192
Copyright
Copyright © Asian Journal of International Law 2011

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Footnotes

*

PhD Research Scholar, IHP-HELP Centre for Water Law, Policy and Science under the auspices of UNESCO, University of Dundee, Scotland, United Kingdom; Legal Adviser, Scientific Information Centre of Interstate Commission for Water Coordination in Central Asia. I would like to thank my colleagues Hugo Tremblay, Jing Lee, and Mónica García Quesada, participants in the NUS-AsianSIL 2nd Young Scholars Workshop, “Asian Approaches to International Law: Theory, Institutions, Processes and Practices”, Singapore, from 30 September to 1 October 2010, and two anonymous reviewers for their comments on earlier drafts. All translations in the text are done by me.

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17. See “Joint Statement by the Heads of Founder-States of the International Fund for Saving the Aral Sea” (28 April 2009), online: CaWater-info 〈http://cawater-info.net/bk/water_law/pdf/ifas_almaty2009_e.pdf〉; “Findings of the Central Asian Countries Reports on the Effectiveness of Existing Basin Agreements from the Standpoint of National Interests”, prepared by the national working groups in the Asian Development Bank (ADB), “TA 6163-REG: Improved Management of Shared Water Resources in Central Asia” (2005) (on file with author).

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39. Ibid., art. 5(2).

40. Ibid., art. 6.

41. Ibid., art. 10.

42. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 98, para. 9. See also Alistair Stephen RIEU-CLARKE, A Fresh Approach to International Law in the Field of Sustainable Development: Lessons from the Law of International Watercourses (London: IWA Publishing, 2005) at 104.

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45. 1997 UN Convention, supra note 14, art. 5(1).

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47. UNECE Guide to Implementing the Convention Meeting of the Parties to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 5th Session of the Meeting of the Parties, 10−12 November 2009, UN Doc. ECE/MP.WAT/2009/L.2., at 33, para. 102 [UNECE Guide to Implementing the Convention]. See also Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), [1997] I.C.J. General List No.92, 37 I.L.M. 162 (1998); Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010] I.C.J. General List No. 135; Owen MCINTYRE, “The Proceduralization and Growing Maturity of International Water Law: Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), International Court of Justice, 20 April 2010” (2010) 22 Journal of Environmental Law 475.

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54. Ibid., art. 2(2)(c).

55. Ibid., preamble.

56. UNECE Guide to Implementing the Convention, supra note 47 at 10, para 26. Co-operative conduct from other than riparian states to ensure equitable and reasonable use of transboundary waters gains relevance and importance in the context of the globalized world that struggles to achieve water security and ensure water for all. See HOEKSTRA, Arjen Y. and CHAPAGAIN, Ashok K., Globalization of Water: Sharing the Planet's Freshwater Resources (Oxford: Blackwell Publishing, 2007)CrossRefGoogle Scholar; DUKHOVNY, V.A., “Water and Globalization: Case Study of Central Asia” (2007) 56 Irrigation and Drainage 1CrossRefGoogle Scholar; and WOUTERS, Patricia, VINOGRADOV, Sergei, and Bjørn-Oliver MAGSIG, “Water Security, Hydrosolidarity and International Law: A River Runs Through It …” (2009) 19 Yearbook of International Environmental Law 97CrossRefGoogle Scholar. See also United Nations Millennium Declaration, 8 September 2000, GA Res. 55/2, UN Doc A/RES/55/2 at 2, para 5.

57. 1993 Kzyl-Orda Agreement, supra note 10.

58. 1998 Commonwealth Agreement on Transboundary Waters, supra note 12.

59. 1998 Syrdarya Agreement, supra note 11.

60. 1992 Almaty Agreement, supra note 9.

61. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980), art. 31(2) [1969 Vienna Convention]. See also FITZMAURICE, Gerald, “The Law and Procedure of the International Court of Justice 1951−4: Treaty Interpretation and Other Treaty Points” (1957) 33 British Yearbook of International Law 203 at 209Google Scholar.

62. 1992 Almaty Agreement, supra note 9, preamble.

63. Separate schemes for two principal river basins—the Scheme of Complex Water Resources Use and Protection for the Amudarya River and the Scheme of Complex Water Resources Use and Protection for the Syrdarya River—provide detailed provisions for water allocation, use, management, and protection. See Resolution of the Expert Sub-Commission to the Gosplan (State Planning Committee) State Expert Commission of the USSR (12 March 1982); Protocol of the Scientific and Technical Council of the Ministry of Water Resources Management of the USSR on Approval of the Principles of Inter-Republican Water Allocation of the Syrdarya River Basin Resources No. 413 (29 February 1984); Protocol of the Scientific and Technical Council of the Ministry of Water Resources Management of the USSR on Approval of the Principles of Inter-Republican Water Allocation of the Amudarya River Basin Resources No. 556 (10 September 1987); Decision of the Gosplan State Expert Commission of the USSR No. 11 (5 March 1982) (on file with author).

64. See ADB TA 6163-REG, supra note 17; KEMELOVA, Dinara and ZHALKUBAEV, Gennady, “Water, Conflict and Regional Security in Central Asia Revisited” (2003) 11 New York University Environmental Law Journal 479Google Scholar.

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66. Afghanistan, a riparian state to the Amudarya basin, is not formally involved in regional water management. Although existing basin agreements define rights and obligations only with respect to the five post-Soviet Central Asian states, a 1987 Protocol of the Scientific and Technical Council of the Ministry of Melioration and Water Management of the USSR, which established still-valid water distribution limits for the Amudarya basin, has deducted the Afghanistan's supposed water withdrawal (2.1 bcm) from the river's runoff to estimate the basin water availability for subsequent allocation among the five Central Asian states.

67. The benefit sharing, defined as “any action designed to change the allocation of costs and benefits associated with cooperation”, has gained its advocates and sceptics in application to shared waters. SADOFF, Claudia W. and David GREY, “Beyond the River: The Benefits of Cooperation on International Rivers” (2002) 4 Water Policy 389CrossRefGoogle Scholar.

68. See 1998 Syrdarya Agreement, supra note 11.

69. TARLOCK, Dan and WOUTERS, Patricia, “Are Shared Benefits of International Waters an Equitable Apportionment?” (2007) 18 Colorado Journal of International Environmental Law and Policy 523Google Scholar. See also Dukhovny, supra note 56.

70. Draft Agreement on the Syrdarya River Basin (Version 2007) (on file with author), art. 4.

71. The objective criteria specified in art. 6 of 1997 UN Convention, supra note 14.

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74. 1997 UN Convention, supra note 14, art. 7(1).

75. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 103, para 4.

76. 1992 UNECE Convention, supra note 13, art. 2(1).

77. UNECE Guide to Implementing the Convention, supra note 47 at 29, para 95.

78. McCaffrey, supra note 73 at 347.

79. Ibid., at 370−1; Tanzi and Arcari, supra note 73 at 179. It should be noted, however, that the relationship between these two rules was a most contentious issue during the preparation of the 1997 UN Convention. The primacy of the equitable utilization under the no-harm rule is questioned, even after the adoption of the 1997 UN Convention. See Commentary to Berlin Rules on Water Resources (2004), Report of the Seventy-First International Law Association Conference, Berlin [Commentary to Berlin Rules]. See also SALMAN, Salman M. A., “The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law” (2007) 23(4) Water Resources Development 625CrossRefGoogle Scholar.

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81. International Law Commission Commentary to 2001 Draft Articles, supra note 29 at 165.

82. 1998 Commonwealth Agreement on Transboundary Waters, supra note 12.

83. 1992 Commonwealth Agreement on Environmental Interaction, supra note 12.

84. 1992 Almaty Agreement, supra note 9, art. 3.

85. McCaffrey, supra note 73 at 433, 435.

86. 1997 UN Convention, supra note 14, art. 7.

87. Article 7 of the draft articles was adopted on first reading by the ILC in 1991. Draft Articles on the Law of Non-Navigational Uses of International Watercourses, Report of the International Law Commission (ILC) on the Work of its Forty-third Session, UN GAOR, 46th Sess., Supp. (No. 10), UN Doc. A/46/10 (1991) [ILC Report on 1991 Draft Articles].

88. International Law Association, “Helsinki Rules on the Uses of the Water of International Rivers”, Helsinki, 1966, reprinted in BOGDANOVIC, Slavko, International Law of Water Resources: Contribution of the International Law Association (1954−2000) (The Hague: Kluwer Law International, 2001)Google Scholar, art. X [1966 Helsinki Rules].

89. Trail Smelter Arbitration (U.S. v. Canada), (1941) 3 R.I.A.A. 1905 at 1965; Declaration of the UN Conference on Environment and Development, Report of the United Nations Conference on Environment and Development, Annex I, UN Doc. A/Conf.151/26 (Vol. I) [Rio Declaration].

90. BODANSKY, Daniel, “What's So Bad About Unilateral Action to Protect the Environment?” (2000) 11 European Journal of International Law 339 at 342Google Scholar.

91. See Brunnée and Toope, supra note 23 at 26−7.

92. JACOBSON, Harold K. and Edith BROWN WEISS, “A Framework for Analysis”, in Brown Weiss and Jacobson, eds., supra note 36, 1 at 4Google Scholar. See also Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] I.C.J. Rep. 14, para. 275.

93. Agreement Between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic and the Government of the Republic of Uzbekistan on Cooperation in the Area of Environment and Rational Nature Use, 17 March 1998, online: CaWaterInfo 〈www.cawater-info.net/library/eng/l/nature_use.pdf〉 (an unofficial English translation) [1998 Environmental Cooperation Agreement], art. 2.

94. Ibid., preamble.

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96. McCaffrey, , supra note 73 at 373Google Scholar.

97. The Alabama tribunal's define “due diligence” as “a diligence proportioned to the magnitude of the subject and to dignity and strength of the power which is exercising it” and thus relates it to the nature of the activity and the relevant state's capacity (a developed country would often be held to a higher standard of care than a developing one). See Alabama Claims Arbitration, reported in (1872) 1 Moore, International Arbitrations 495 at 572−3. The ILC Commentary to Article 3 of the 2001 Draft, supra note 29 at 155, para. 17, states: “The main elements of the obligation of due diligence involved in the duty of prevention could be thus stated: the degree of care in question is that expected of a good Government”. Article 10 to the ILC Draft, supra note 29 at 374, also sets out factors to be taken into account, including the degree of risk of significant harm, the importance of activity, the degree of preparedness to contribute to the costs of prevention, the economic viability of the activity in relation to the costs of prevention, and the standards of prevention. See also Nollkaemper, supra note 23 at 44.

98. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 103.

99. Birnie, Boyle, and Redgwell, supra note 72 at 556 give another example of Articles 7 and 8 of the 1995 Mekong Agreement,

which require parties to make every effort to “avoid, minimize and mitigate” harmful effects to the environment, but also call for cessation of uses causing substantial damage, and compensation thereof. In effect this latter provision amounts to a prohibition of such harmful uses.

100. Tanzi and Arcari, supra note 73 at 225.

101. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 97.

102. 1997 UN Convention, supra note 14.

103. TANZI, Attila, “Reducing the Gap Between International Water Law and Human Rights Law: The UNECE Protocol on Water and Health” (2010) 12 International Community Law Review 267 at 270Google Scholar.

104. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 122, para. 3.

105. McCaffrey, , supra note 73 at 385−6Google Scholar.

106. Article 22 of the 1997 UN Convention, supra note 14, states that “Watercourse States shall take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse which may have effects detrimental to the ecosystem of the watercourse resulting in significant harm to other watercourse States”.

107. Tanzi and Arcari, supra note 73 at 238.

108. International Law Commission Commentary to 1994 Draft Articles, supra note 29 at 119.

109. Ibid., at 118.

110. See MCCAFFREY, Stephen C., The Law of International Watercourses—Non-Navigational Uses, 2nd edn. (Oxford: Oxford University Press, 2007) at 257 and 462Google Scholar: “there is now at least an emerging obligation to protect international watercourses systems and their ecosystems against degradation”,

[w]hile this obligation may be described as “new” or “emerging”, its basic elements are already part of general international law. The obligation, as formulated in Article 20 of the UN Convention, simply reflects advances in scientific knowledge about the interrelationships of natural systems.

Birnie, Boyle, and Redgwell, supra note 72 at 559–60. For the opposite view, see Commentary to Berlin Rules, supra note 79 at 28. The Berlin Rules were adopted by the International Law Association in 2004 as a result of the revision of the Helsinki and other International Law Association Rules on International Water Resources. Four members of the ILA Water Resources Committee, namely Slavko Bogdanovic, Charles Bourne, Stefano Burchi, and Patricia Wouters, submitted a dissenting opinion, stating that the Rules “mark a radical and unwarranted departure from existing customary law”. See also SALMAN, supra note 79 on the status and role of the Berlin Rules.

111. Birnie, Boyle, and Redgwell, supra note 72 at 552.

112. 1992 UNECE Convention, supra note 13, art. 2(2).

113. Ibid., art. 1(2) reads:

“Transboundary impact” means any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors.

114. Ibid., art. 2(5).

115. Ibid., art. 3(1)(i).

116. Ibid., art. 2(6).

117. 1992 Commonwealth Agreement on Environmental Interaction, supra note 12, preamble.

118. Ibid., art. 2.

119. 1998 Commonwealth Agreement on Transboundary Waters, supra note 12, art. 1.

120. Ibid., art. 2.

121. 1993 Kzyl-Orda Agreement, supra note 10, art. 1.

122. A 1988 Decree of the Council of Ministers of the USSR on Measures for Radical Improvement of Ecological and Sanitary Situation in the Region of the Aral Sea, Enhancing the Efficiency and Use to Strengthen the Protection of the Water and Land Resources in its Basin. According to the Decree minimum inflows to the deltas of the Amudarya and Syrdarya and to the Aral Sea (including drainage waters) are as follows: 8.7 km3 in 1990; 11 km3 in 1995; 15 km3 in 2000; and 20 km3 by 2005.

123. See Diversion of Water from the River Meuse, 1937 P.C.I.J. (Ser. A) No. 70 at 21 (observing that “The Treaty brought into existence a certain regime which results from all of its provisions in conjunction. It forms a complete whole, the different provisions of which cannot be dissociated from others and considered apart by themselves”).

124. 1998 Environmental Cooperation Agreement, supra note 11, art. 2.

125. 2006 Framework Convention on Sustainable Development in CA, supra note 11, art. 3.

126. Ramsar Convention, supra note 16.

127. Ibid., supra note 16, art. 1 defines “wetlands” as:

areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.

128. The wise use of wetlands, the cornerstone of the Convention, has been defined by the COP as the “sustainable use of wetlands for the benefit of mankind in a way that is compatible with maintaining the natural properties of the ecosystem”. See “Recomnendation 3.3. Wise Use of Wetlands”, Third Meeting of the Conference of the Parties (Regina, Canada, 27 May – 5 June 1987), online: Ramsar 〈www.ramsar.org/pdf/rec/key_rec_3.03e.pdf〉.

129. Ramsar Convention, supra note 16, preamble.

130. Ibid., art. 5.

131. Guidelines for the Allocation and Management of Water for Maintaining the Ecological Functions of Wetlands, Resolution VIII.1, 8th Meeting of the Conference of the Contracting Parties to the Convention on Wetlands (Ramsar, Iran, 1971), Valencia, Spain, 18−26 November 2002, online: Ramsar 〈www.ramsar.org/pdf/res/key_res_viii_01_e.pdf〉. See also Guidelines for International Cooperation Under the Ramsar Convention, Resolution VII.19, 7th Meeting of the Conference of the Contracting Parties to the Convention on Wetlands, San José, Costa Rica, 10−18 May 1999, online: Ramsar 〈www.ramsar.org/pdf/res/key_res_vii.19e.pdf〉.

132. The Aydar Arnasay Lakes System (the AALS) is the largest reservoir of Uzbekistan, consisting of freshwater lakes situated in the middle stream of the Syrdarya river and on the irrigated massif of the Golodnaya steppe and the Kyzylkum desert. It was formed as a result of emergency dumping of water from the Chardara reservoir in 1969 (20.1 km3). In recent decades, Kazakhstan and Uzbekistan were forced to divert water into the AALS regularly, due to a change in the operating regime of the Toktogul reservoir which resulted in a substantial shift in flow patterns, with the peak of water releases in winter rather than in summer. A low carrying capacity of the riverbed downstream of the Chardara reservoir (400 to 600 m3/sec in winter) did not allow for the direction of flow to the Aral Sea. Today, the AALS's size is about 42 km3. See The Aydar Arnasay Lake System (Uzbekistan), Information Sheet on Ramsar Wetlands—2008 Ramsar Uzbekistan 2UZ002, online: Ramsar 〈http://ramsar.wetlands.org〉; G. Glysin, “From Aral to Arnasay”, in Ecological Almanac Simply Writing on Environment (in Russian 2005), online: Kungrad 〈http://kungrad.com/aral/book/arnasai/〉.

133. “The Aydar Arnasay Lakes System” (July 2008), Ramsar site No.1841, online: Ramsar 〈http://ramsar.wetlands.org〉.

134. Convention on Biodiversity, supra note 16, pursues the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

135. Ibid., art. 6(b).

136. Ibid., art. 8(d).

137. Ibid., art. 8(f).

138. Ibid., art. 8(h).

139. Ibid., art. 5.

140. See “Conference of the Parties Decisions”, online: Convention on Biological Diversity 〈www.cbd.int/decisions/cop/〉.

141. UNECE Guide to Implementing the Convention, supra note 47.

142. As Patterson explained:

Meaning—the basis of objectivity—is made possible by the harmony in action and judgment of participants in legal practice over time. Most importantly, it is in virtue of what participants in legal practice have in common that normativity and objectivity are possible.

PATTERSON, Dennis, “Interpretation in Law” (2005) 42 San Diego Law Review 685 at 686Google Scholar. See also Franck, supra note 23; Chayes and Chayes, supra note 23; and Abbott et al., supra note 24.

143. Bodansky, supra note 24 at 104; and OSPAR Award, supra note 34.

144. See The Arbitral Tribunal's hierarchy of obligations in OSPAR Award, supra note 34.

145. MCLACHLAN, Campbell, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention” (2005) 54 International and Comparative Law Quarterly 279 at 286Google Scholar.

146. Rieu-Clarke and Loures, supra note 15Google Scholar.

147. WEERAMANTRY, Christopher Gregory, Universalising International Law (Leiden/Boston: Martinus Nijhoff Publishers, 2004) at 37Google Scholar.