Dispute Over Helmand: Problems Beyond the Equitable Apportionment

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U.S. Navy Seaman Derek Happel patrols along the Helmand River in Sangin in Afghanistan's Helmand province, July 11, 2012. Photo: US Department of Defense

By: Nazeem Samoon

Due to global population growth and economic development, demand for fresh water and its consumption is steadily increasing. In early 20th century, world population grew at an annual rate of 0.8 percent, while since 1980s it has reached 1.9 percent. Population growth is now an issue of great concern in the developing region of Asia, Africa and Latin America, which accounted for 85 percent of the increase of global population since 1950s. Climate change, consistent droughts and inefficient use of water on the other hand have led to scarcity of fresh waters.

Data shows that in 2016, 411 million people in total were affected by climate change, 94 percent of whom were affected by drought. For instance, droughts caused an average US$ 6–8 billion worth of losses in agriculture in the United States annually. According to existing climate change scenarios, water scarcity in some arid and semi-arid places may displace anywhere between 24 and 700 million people by 2030. A new research conducted by Hindu Kush Himalayan Monitoring and Assessment Program (HIMAP) suggests that nearly 240 million settled population in the range of Hindu Kush Himalayan Mountains will be affected by glacier retreat and rainfall variations. The HKH region is bounded by eight countries – Afghanistan, Pakistan, India, China, Nepal, Bhutan, Bangladesh and Myanmar. Among these, the most challenging issue is world population growth. As compared to 40 years ago, the world population has been doubled.

As of 2018, it stood at 7.7 billion and the United Nations forecasts that it could rise to 9 billion by 2050. Urbanization or living in urban areas is also increasing. According to the “Population Division” report from the UN’s Department of Economic and Social Affairs, currently around 55 percent of the world’s population is living in an urban area or city and it is expected that the number will rise to 68 percent over the coming decades. These growing urban areas will experience increasing difficulty in providing adequate supplies of water to their inhabitants. It is argued that by 2025, over 30 countries will be unable to provide 1,000 cubic meters of water per person per year because of population growth. In some countries the situation is considerably worse:  in 1990 there were 12 countries in which water availability was less than 500 cubic meter per person per year; but now this number is projected to increase to 19 by 2025.

Unequitable use and poor management of waters also contribute to scarcity of fresh water. According to the World Bank, in most regions of the world, over 70 percent of freshwater is used for agriculture. The recent report published by World Bank indicates that the efficiency and productivity from freshwater water in Pakistan is very low. Report states that “While irrigation dominates water use in the country, the 4 major crops including rice, wheat, sugarcane and cotton use 80 percent of water but contribute only 5 percent to Gross Domestic Product (GDP).”

To addressing these challenges, certain legal and cooperative frameworks have been established at international level. There is an extensive treaty practice in this field and yet two-third of the world’s 263 international river basins and major trans-boundary aquifer systems lack any type of cooperative management framework. At the global level, two important UN conventions provide a comprehensive framework for the development and management of trans-boundary waters.

The UN 1997 Convention on the law of non-navigational uses of International watercourses and the UN Economic commission for Europe convention on the protection and use of Trans-boundary watercourses and international lakes, offer complementary instruments, each aimed at providing guidance to watercourse states in the management of their shared fresh resources. However, as far as Afghanistan is concerned, of its four trans-boundary river basins, only Helmand is governed by a modern legal framework. The issue which I am going to explore here is that, whether the current dispute over Helmand River is legal in nature or beyond it? First, let’s have a brief look at 1973 Helmand Treaty.

The Helmand Water Treaty

The 1973 Helmand Water Treaty is perceived as the most equitable based treaty in the modern history of international watercourses in the region. Despite ending nearly a century old dispute between two riparian states, the Helmand Treaty defined the legal status of Helmand River for the first time and characterized it as an international river basin. Under the article 4 of the treaty, Afghanistan agreed not to take any action which might deprive Iran totally or partially of its due share. This obligation is rooted in the limited territorial doctrine which reflected in international watercourse law as the principle of “Equitable and reasonable utilization”. International watercourse law requires every riparian states to utilize an international watercourse on the equitable and reasonable manner. 

This principle helps riparian states to distribute the natural resources in a manner that all countries benefit from it. Today the principle of equitable utilization constitute the core objective of every international water agreement and other related legal instruments. Despite its consistent state practice, the principle has evolved as a customary international law as well. International court of justice (ICJ) also recognized the principle as governing rule of utilizing natural resources. The 1973 Helmand Treaty incorporated the aforementioned principle and therefore the current legal framework leaves no doubt about the equitable apportionment of the Helmand water.

Unsustainable Use

What I observed during my studies is that, dispute over Helmand water is not legal in nature, rather it is correlated with ecological, climatic, poor water management and political issues. One prominent characteristic of Helmand River is that, the river considerably fluctuates not only seasonally but also from year to year.

Helmand River Basins

The seasonally flow and periodic droughts lead to water shortage in either side of the basin. If we look at the chronicle of disputes from Goldsmid arbitration (1872) to US mediation (1951), every dispute had arose in the time of severe drought.  

What is more important here is the water which originates from Hindu Kush Mountain in Afghanistan and then moves through the western of the country and drains into the international lake Hamun Hirmand, does not receive adequate water. The reason is that Iran diverts the water to supply four reservoirs (The Chah-nimeh) to store freshwater for the provincial capital, Zahedan and other towns. Iran has built several dams on the river as well, which caused to reduce the volume of water flowing to Hamun Hirmand and eventually this unsustainable use of water dried the Hamun. Besides, Iranian Sistan suffers from intense evaporation and environmental degradation caused by “Wind of 120 Days”.

Generally speaking, the area has not received adequate attention in the development plans of the Government of Iran to manage the trans-boundary water resources as such to fulfill the equitable and reasonable utilization. International law requires states to utilize water in an equitable manner. Yet, Iran has failed to maintain the ecosystem of the river. The Hamun Hirmand is the seventh international wetlands and is registered with UN as world biosphere reservoir, but due to shortage of water, the ecosystem of Hamun has destroyed and led to the major displacement and extinction of plants and animal which was a major source of food for the sistan and Baluchistan people. However, the government of Iran blames Afghanistan for not giving its water right.

The dispute is also political. Although article 9 of the Helmand treaty anticipated that “in the event that a difference should develop in the interpretation or application of the treaty, the parties shall endeavor first to solve the difference through diplomatic negotiation. Secondly, through the use of good offices of third party. If neither effort result in a solution the difference shall be submitted to arbitration pursuant to the provision of the annexed protocol No. 2.” Yet, Iran has never resorted to the means of dispute settlement embodied in the treaty, rather Iran threatens Afghanistan by using leverage.

In August 2018, Iran’s Foreign Minister Jawad Zareef asserted in a media interview that Iran will use different leverages to take more water rights from Afghanistan.  At the same time, Iranian President Hassan Rouhani, in a July 2017 conference, said that “we cannot remain silent about the thing which is apparently damaging our environment. Construction of several dams in Afghanistan such as Kajaki, Kamal Khan and Salma in the north and south of Afghanistan are concerns.” The government of Afghanistan accuses Iran for unsustainable and overuse of water. 

Kajaki Dam

The Exit Strategy

A comprehensive cooperative framework is required for tackling the problem. Cooperative management and development could bring a vast range of benefits, including increased hydropower and food production; better access to water for domestic use; improved management of watersheds and reduced environmental degradation; reduced pollution and more control over damage from floods and droughts. The riparian States today are not sure of their water security due to uncoordinated development going on these basin States. These are the result of non‐cooperation by the basin States. Today, the use and management of shared water resources requires cooperation of all the riparian States. Cooperation is not a choice but a must.

A trans-boundary joint commission between Afghanistan and Iran should serve as a formal body that would negotiate water-sharing agreements, collect and share data and build confidence and capacity on both sides. It should have as its initial mandate the creation of a technical working groups to review the entire course of the Helmand and to assess existing and planned infrastructure agriculture production and population density and growth. The technical working group would oversee data collection, monitoring and modeling of the Helmand River Basin, including the Farah Rud. It would assess future changes and make recommendations. The Mekong Trans-boundary river basin commission can be a good model in this regard. The Mekong River Commission is an inter-governmental body that works directly with the governments of Cambodia, Laos, Thailand and Vietnam to jointly manage the shared water resources and the sustainable development of the Mekong River.

Nazeem Samoon is a Masters student of International law at South Asian University. He tweets at @n_samoon

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