Legal issues

Legal aspects of inter-State cooperation in allocation and management of water use

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 of countries 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 water resources, 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 Syrdarya 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.

mprovement of the legal framework at the national level

The specifics of national legislation may be characterized by the example of three countries, Kazakhstan, Kyrgyzstan and Tajikistan, which have somewhat different approaches to the formulation of domestic and external water policies.

In Kazakhstan, the legal framework for water management policy is found in the Water Code adopted in 1993 and government regulations on water sector development and the management of water use and protection. Under Kazakhstan’s Water Code:

• All the waters in its territory constitute a unified reserve of water resources that is owned by the State;
• Water resource management is based on a combination of watershed and administrative-territorial principles ensuring the protection and sustainability of the water resources, optimal conditions of water use, preservation of environmental sustainability;
• The distribution of water resources within basins of rivers, lakes and other water bodies among administrative-territorial units is based on the watershed principle.

The principal objective at the national level is to implement a scientific, technological and investment policy ensuring a rational use of water resources, conservation of the reserve of water resources, fulfilment of water requirements for the national economy and the population, protection of water bodies and small rivers, efficient attainment of inter-State, inter-sectoral and interregional objectives relating to the use and protection of water.

At the watershed and interregional level, watershed directorates have been established, with their main objectives being the regulation of water relations within each basin, distribution of the water resources among water users, interregional water allocation within the basin, issue of permits for special water use, establishment of water use limits and operational regimes for reservoirs, operational control of their observance, elaboration of operational water management plans for the basin, record keeping of State water use, control of technical safety of water management facilities.

The primary level in the water management system is the territorial water management enterprises. It is at this level that territorial problems relating to water supply for the public and the economic sectors, maintenance and operation of water management facilities are addressed. The main task at present is to transfer the water management facilities of district and inter-district significance and their servicing enterprises to municipal ownership controlled by local executive authorities.

In Kyrgyzstan, under the current water legislation, the water resources of natural water bodies are owned by the State, while water resources withdrawn from water bodies may be owned by legal and physical persons. Water consumption from natural water bodies and waste discharge to water bodies were formerly based on licensing. This arrangement basically corresponded to world practices.

In January 2001, the Law on licensing was amended to cancel the water use licensing arrangement. This resulted in a legal vacuum regarding the procedures for using State property, which could have negative legal and factual consequences. In 2001, it was decided to develop a new water code. The preparatory work and consultations conducted to date revealed the following basic approaches to the improvement of water legislation:

• The need to reflect a balanced long-term State water policy adequate to the existing socio-economic situation in the country and formulated in the framework of a national water strategy;
• Elimination of contradictions in existing legal acts and regulations;
• Elimination of parallel legislative norms;
• Development of a law as a direct-action legal normative act decreasing the need for supplementary regulations;
• Adaptation of water relations to market-economy conditions;
• Specification of procedures related to inter-State water relations taking into account provisions of the concluded treaties and international water law;
• Reflection of new principles of management of water use and water management facilities;
• A legal basis for the development of water user associations and denationalization of water management capital assets;
• Development of mechanisms for enforcing the legislation;
• Broadening of the legal regulation of economic activities of water users.

The new Water Code was accepted in 2004.

Tajikistan adopted its new Water Code in November 2000. It strengthened the economic mechanism of water use, defined the organizational system for the regulation of water use and protection, and defined the procedures for the establishment and activities of water users associations. It also tackled the issues of technical improvement of land-reclamation systems, expanded the rights and responsibilities of water users, established legal liability for water-related offences. At present, the legislation is being adjusted to the Water Code. Until completion of this work, the general principle is that the former legislation shall remain in effect as long as it does not contradict the newly adopted Water Code.

In 2001, the national Concept of sound use and protection of water resources was adopted in Tajikistan. It will definitely have a major impact on the development of water and environmental protection legislation, and on the long-term international cooperation of Tajikistan with the other Central Asian countries on water use and protection.

According to the Constitution of Tajikistan, water is the exclusive property of the State, and the State guarantees efficient use and protection of waters for the public benefit. Tajikistan’s legislation does not define transboundary water resources though it uses the term “transboundary water bodies”. They are defined as water bodies whose waters are used in accordance with international treaties.

A review of national legislation indicates that it needs modernizing with due regard for democratization and market-based relations, guaranteed equal rights of all consumers to water, participation of water users in water resource management, development of organizational forms of water management and water protection.