Are we ready for a Water Treaty with Afghanistan? Understanding the Laws Governing Kabul River Basin
September 19, 2017
IntroductionThe transboundary Kabul River Basin (KRB) is a shared lifeline for both Afghanistan and the north-western regions of Pakistan. Its centrality for the two countries makes it an extremely important shared resource. Therefore development and management of Kabul River waters is a decisive factor in achieving regional economic growth, food security, alleviating poverty, energy security, and providing a safe and stable supply of water. However, due to a strained political relationship, the River has been left out of the agenda, with little to no collaboration between the riparian countries or consideration of an integrated basin-wide approach. While there is a need for establishing a water treaty setting out joint governance of the Basin's waters, our current understanding is marred by technical, socio-economic, and legal challenges and limitations. Background Under USAID's Partnership for Enhanced Engagement in Research (PEER) program, LEAD Pakistan has undertaken a comprehensive research initiative titled 'Understanding our Joint Water-Climate Change Challenge and Exploring Policy Options for Cooperation on the Afghan-Pak Transboundary Kabul River Basin'. Building on informed scientific evidence, the project aims to ensure participation and engagement of multiple stakeholders from Pakistan and Afghanistan, through a series of stakeholder consultations, exchange meetings, expert talks, and policy dialogues. As part of this initiative, LEAD Pakistan hosted an interactive session with Mr. Ahmad Rafay Alam, a renowned environmental lawyer. The aim of the session was to provide an understanding of the regional and international laws governing shared basins and how they can be translated into developing an outline for the legal framework of governing the waters of the KRB. Proceedings While calls for instituting a treaty or agreement between Pakistan and Afghanistan on the Kabul River are common in the political rhetoric of both countries, the question of whether there is enough reliable underlying information to initiate such a discourse is often neglected. Multiple studies have been conducted on both sides of the basin, however there is a lack of reliable knowledge on the various aspects necessary for integrated-basin wide management on the principles of benefit sharing. The significance of Kabul River Basin Unlike Pakistan, where the Indus River is considered the backbone and lifeline of the country, Afghanistan is fed by multiple rivers. KRB is one of the five principal basins of Afghanistan, along with the Amu Darya, Helmand, Northern, and Hari Rod-Murghab rivers. However, four out of these five rivers are transboundary in nature, making Afghanistan's water resources intrinsically linked with international diplomacy and foreign policy. It is difficult for Afghanistan to consider harnessing its own water resources without introducing a transboundary, and ultimately a diplomacy, element. Despite the various water resources in Afghanistan and KRB covering only about 12% of the country's territory, KRB is by far the most significant and important of the five rivers. It drains about one fourth of the country's annual flows and sustains over 35% of the country's population in a region which is the hub of most development, infrastructure, irrigation, agriculture, and hydropower initiatives. According to Mr. Alam, 'if there is anything happening in Afghanistan regarding water, it is safe to assume that is happening in the Kabul River Basin'. Water-related provisions in Afghanistan laws Afghanistan's Constitution is relatively nascent and envisages a unitary state where provinces do not have the provisions to pass provincial laws. The past generation of laws stated that water from rivers is 'public property' and everyone has a right to use it as long as it is not 'contrary to public interests or special laws'. This memory of water as a basic right and public property has continued into twenty first century laws. Presently, the two main laws concerning water are the Afghanistan Environmental Law and Afghanistan Water Law. The Environmental Law has two fundamental foci: natural resources must be conserved and protected, and water resource management will be based on the principles of integrated watershed management. Similarly, the Water Law was enacted for the purpose of conservation, equitable distribution, and the efficient and sustainable use of water resources. In principle, the governing laws indicate that water belongs to the public and government is responsible for its protection and management. However, the state's ability to harness and provide water resources to the population is severely hampered by a) a lack of engagement with communities and b) the overlapping responsibilities shared by several ministries. Since most water management in Afghanistan stems from traditional practices used in villages and amongst clans, when the state intervenes, it has little to no credibility in these cases. Similarly, inter-ministerial rivalries stemming from multiple delegated duties and responsibilities on water have resulted in a lack of coordination. Any sort of investment in the water sector or hydropower in Afghanistan must therefore involve local communities and have a strong element of community ownership, while ministries must also take accountability and coordinate with each other to avoid confusion and inefficiency. Water-related provisions in Pakistan laws Pakistan is a federation with considerable power accorded to the provinces post-18th amendment of the Constitution. Therefore, there are two tiers of water laws that need to be considered when discussing the KRB: the federal laws applicable throughout Pakistan and the provincial laws of Khyber Pakhtunkhwa province. The 18th amendment completely decentralizes the subject of water, leaving it to the provinces to pass their own laws. Yet, there are a few exception to this general principle. First, the Rules of Business determine the responsibilities of various ministries and divisions, giving some responsibility to the federal government through the water-related ministries. Similarly, the WAPDA Act of 1958, Water Apportionment Accord of 1992, and Indus Rivers Authority Act of 1992 all give some power to the federal government to prepare national-level plans and schemes. Conclusion and Way Forward A water treaty between the two countries based on international transboundary water laws and the UN Watercourse Convention would require both countries to utilize the Kabul River waters in an equitable and reasonable manner, with a view to attaining optimal and sustainable utilization thereof. Moreover, such a treaty would enforce obligations on both parties not to cause significant harm to the other and to use surface water and groundwater conjunctively while ensuring a regular exchange of data and introducing a system of negotiating differences in planned measures. However, a formal treaty implies that there is adequate availability and reliability of information about the characteristics of the Basin and that both parties have sufficient understanding of the ground realities. Thus, before aiming for a legal treaty, we should ask ourselves a few important questions: What exactly would Kabul and Islamabad negotiate over? Would an allocation-based arrangement be in each country's long-term best interests? Can Pakistan and Afghanistan agree on sharing information and data without becoming suspicious of each other? While a treaty would ultimately be beneficial for everyone, we should aim to start the process with soft actions such as collaborative research, joint statements, sharing of information, and trust building exercises between the two states.