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Current legal challenges to institutional governance of transboundary water resources in Central Asia and joint management arrangements

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Abstract

Transboundary water governance, understood as ownership, development and management of water resources, has been developing in Central Asia since the collapse of the Soviet Union and emergence of national water legal systems. However, fairly developed water governance on transboundary basins in the region still requires strengthening through enhancing riparian states’ institutional cooperation at all levels of interstate cooperation—regional level, transboundary river basins and bilateral level. Joint management arrangements (JMA), which according to widespread international legal practice are used to facilitate interstate cooperation on transboundary water basins, still pose a sufficient challenge to all levels of transboundary water governance in Central Asia. The most developed JMA in Central Asia is the mechanism represented by International Fund for Saving Aral Sea (IFAS), representing all states on the regional level of water governance. Not a flawless legal nature of IFAS envisages current challenges to the development of JMA at all institutional levels of interstate cooperation in Central Asia. Further, it reflects the need for further development and strengthening of transboundary water governance in the region.

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Notes

  1. UNGA Res. 1803 (XVII), (1962), Art.1 of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights (1966), Principle 21 of the Stockholm Declaration (1972), Principle 2 of the Rio Declaration (1992).

  2. Commentaries to Draft Articles on Prevention of Transboundary harm from hazardous activities, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR Supp. (No. 10), UN Doc. A/56/10.

  3. Commentary to Art. 1 of Berlin Rules on Water Resources of the International Law Association, 2004 (ILA Berlin Rules), see: http://www.ila-hq.org/en/committees/index.cfm/cid/32 (last visit 10.06.2013).

  4. Strengthening Water Management and transboundary Water Cooperation in Central Asia: the role of UNECE Environmental conventions, p 66

  5. United Nations General Assembly Resolution 63/124 of 11 December 2008, Annex.

  6. Art. 6 of Convention on the Law of the Non-navigational Uses of International Watercourses, 1997 (UN Water Convention) stipulates that utilization of an international watercourse in an equitable and reasonable manner requires taking into account all relevant factors and circumstances (including factors of a natural and socio-economic character, states’ population dependence on the watercourse in each watercourse state; existing and potential uses of the watercourse; conservation, protection, development and economy of use of the water resources of the watercourse; availability of alternatives, of comparable value, to a particular planned or existing use).

  7. Gabcíkovo-Nagymoros Case (Hungary vs. Slovakia), 1997 ICJ No. 92 & 53. Art. 5 The Convention on the Protection and Use of Transboundary Watercourses and International Lake, 1992 (Helsinki Convention).

  8. Trail Smelter, Arbitral Tribunal Judgment (USA vs. Canada) 1938/1941, 3 R.I.A.A. 1905, Case Concerning nuclear test (New Zealand and Austria vs. France) 1974, ICJ Rep. 457, Art. 3 Convention on Biological Diversity (1992), Preamble to Information from the United Nations Framework Convention on Climate Change, Principle 21 of Stockholm Declaration, Para 21(e) World Charter for Nature.

  9. Art. 8 UN Water Convention.

  10. UNGA Res. 3129 (1973), Art. 3 of Charter of Economic Rights and Duties of States; UNGA Res. 3281 (XXIX), (1974), UNEP's Draft Principles for the Conduct of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States [UNEP/GC.6/17(1978)].

  11. See Pulp Mills on the River Uruguay (Argentina vs. Uruguay.), 178-80 (Judgment of International Court of Justice from April 20, 2010), available at http://www.icj-cij.org/docket/files/135/15877.pdf (last visit 22.04.2010).

  12. “Berlin Recommendations: Lessons Learned, Challenges and Issues for the Future” adopted by the International Round Table: Transboundary Water Management—Experience of International River and Lake Commissions (Berlin, 27–30 September 1998), http://www.bmu.de/files/pdfs/allgemein/application/pdf/petersberg_berlin_recommendations1998.pdf (last visit 11.06.2013).

  13. See: Nukus Declaration of Central Asian States on Sustainable Development of the Aral Sea Basin (1995); the Ashgabat Declaration (1999); the Tashkent Statement (2001); the Dushanbe Declaration (2002); and the Joint Statement of the Heads of State - Founders of IFAS (2009).

  14. UNGA Res. (11.12.2008) on Observer status for the International Fund for saving the Aral Sea in the General Assembly, Nr. A/RES/63/133.

  15. IFAS was established as a financial arm of ICWC and eventually replaced it.

  16. Such a merging of institutions active in the field of water management in Central Asia (ICSD, ICWC, IFAS) could have offered a chance for successful implementation of principles of integrated water resource management at the regional level. From the legal point of view it would however require a change of the legal status of all these bodies to avoid the subordination of legally independent international law subjects (ICSD, ICWC) under the structure of another international law subject (IFAS).

  17. ILA Res. on International Water Resources Administration (Madrid, 1976)—ILA, ‘Report of the Fifty-Seventh Conference, Madrid’ (1976), in S. Bogdanović, International Law of Water Resources—Contribution of the International Law Association (1954–2000) 245–268 (Kluwer Law International 2001); Art. 64 of Berlin Rules on Water Resources, International Law Association (2004) at http://www.ila-hq.org/en/committees/index.cfm/cid/32 (last visit 11.06.2013).

  18. UN Water Convention, however not in force yet, is a treaty of universal applicability to transboundary waters (For details on another water agreement applicable worldwide see footnote No. 17). This Convention is however supposed to enter into force in August 2014. According to Art. 8 states shall cooperate and “in determining the manner of such cooperation, they may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions”. Further (Art. 24) convention stipulates that “establishment of a joint management mechanism may serve as a toll for management of an international watercourse, in particular, to planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted; and otherwise promoting the rational and optimal utilization, protection and control of the watercourse”.

  19. Helsinki Convention has been developed by United Nations Economic Commission for Europe for its member states, but its amendment from 2003 allows joining this convention also for UN members from outside the UNECE region, increasing its meaning. According to its Art. 9, riparian parties “shall on the basis of equality and reciprocity enter into bilateral or multilateral agreements or other arrangements, where these do not yet exist, or adapt existing ones, where necessary to eliminate the contradictions with the basic principles of this Convention/…/The agreements or arrangements shall provide for the establishment of joint bodies”.

  20. “River Basin Commissions and Other Institutions for Transboundary Water Cooperation”, Capacity for Water Cooperation in Eastern Europe, Caucasus and Central Asia, United Nations Economic Commission for Europe, New York and Geneva (2009), at 1, page 10.

  21. This Agreement regulates joint waterworks regulating water drain into the Aral Sea, including ownership, apportioning of water, joint conduct of land reclamation and management of irrigation systems and waterworks, preventing of riverbed deformation and floods.

  22. This explanation has been provided by authors of the cited paper for definition for a notion of “international river basin organisations (IRBO)”. It reflects state praxis based outcome of research on establishment and functioning of what is called in the present paper as “joint management arrangements”. The notion of IRBO is not common in legal teaching and for the purpose of the here presented paper not suitable, since this paper analyses, for instance, the legal nature of IFAS covering not just one international river basin, but the basin of the Aral Sea, which consists of the drainage area of the two rivers, Amu Darya and Syr Darya.

  23. For more detailed analysis see: “Strengthening the Institutional and Legal Frameworks of the International Fund for saving the Aral Sea: review and proposals, Discussion paper, 2010, at: http://www.unece.org/fileadmin/DAM/env/water/cadialogue/docs/Draft_Paper_united_FINAL_ENG.pdf(last visit 09.06.2013).

  24. The 1993 Agreement on joint action to address the problem of the Aral Sea and surrounding areas, environmental improvement and socio-economic development of the Aral Sea region established the predecessor of ICSD (Inter-State Council for the Aral Sea basin and the Commission on Socio-Economic Development, Scientific, Technical, and Environmental Cooperation).

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  1. Kazakh-German University, Pushkin k. 111-113, Almaty, 050010, Kazakhstan

    Barbara Janusz-Pawletta

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Janusz-Pawletta, B. Current legal challenges to institutional governance of transboundary water resources in Central Asia and joint management arrangements. Environ Earth Sci 73, 887–896 (2015). https://doi.org/10.1007/s12665-014-3471-7

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