UNDP 2003: Water-related legal and institutional structures in Central Asia

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UNDP's Central Asian Water Mission 2003

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Final Report and Recommendations: Summary

In accordance with its Terms of Reference (Annex D), from June 15, 2003 through July 2, 2003, a mission team (the “Mission”) composed of Mr. Michael Rathnam and Dr. Eric Sievers (representing UNDP contractor Baker & McKenzie) visited Kyrgyzstan, Tajikistan, Uzbekistan, Kazakhstan, and Turkmenistan.


The principal tasks of the Mission as defined in the Terms of Reference were to:

  • Recommend a two or three year strategy the UN system could adopt in the area of Central Asian water resource management;
  • Prepare an overall assessment of current regional institutional structures for Central Asian water resource management;
  • Review the intentions, possible responses to, and possible outcomes of the proposal by four Central Asian states to create a “special UN Commission” (the “Commission”); and
  • Examine other possible approaches with respect to international or intergovernmental structures, such as water basin management bodies around the world and international research and development programmes, including whether a Commission is the best solution.


Regional Institutional framework

The general focus of Soviet water policies in the Aral Sea Basin since the 1950s was to allocate water resources among the republics and construct water installations so as to maximize expansion of irrigated agriculture on a region-wide basis, thereby facilitating regional economic growth. While this water policy brought economic benefits to the region, it also entailed a number of externalities, the most well known of which are environmental.


The Soviet Union used a number of institutions to manage these allocations, construction projects and compensatory schemes. The water problems of the Aral Sea Basin were internationalized with the breakup of the Soviet Union, and republics adherence to the general Soviet water regime also began to falter. However, the institutional modalities for managing allocation of the Syrdarya and the Amudarya rivers’ waters were not fundamentally changed with the disassembly of the USSR. Essentially the structures in place in 1987 have remained intact, and the principles and persons driving these structures remain at the center of institutions that exist today.


In February 1992, the NIS entered into a treaty on Cooperation in the Joint Use and Protection of Water Resources of Interstate Significance affirming the “existing structure and principles of allocation” of trans-boundary waters, pledging the NIS “strictly to observe the coordinated procedures and established rules on use and protection of water resources,” recognizing the Aral Sea as of common interest to the NIS, and including a mandate to form an Interstate Commission on Water Coordination (“ICWC”). This treaty also made BVOs subordinate to the ICWC.


In March 1993, the NIS also entered into an Agreement on Joint Efforts to Resolve the Problems of the Aral Sea and Surrounding Area and on Environmental Mitigation and Ensuring the Socio-Economic Development of the Aral Region. This 1993 treaty included a decision to create an Interstate Council on the Aral Sea (“ICAS”), with an executive committee based in Tashkent, under whose auspices would operate the still-to-be formed ICWC and an Interstate Commission on Socio-Economic Development and Scientific, Technical and Ecological Cooperation (“ICDSTEC”). A primary purpose of the 1993 treaty was to restore the Aral Sea. On April 1, 1993, the NIS presidents reportedly agreed to create IFAS.


Following the involvement of the international community in addressing the Aral Sea Basin crisis and concomitant emphasis on regional cooperation to resolve the water management issues, a regional institutional framework for addressing the Aral Sea Basin crisis was presented by NIS representatives at an international seminar sponsored by UNDP/UNEP/World Bank in Washington on April 26, 1993. This institutional framework comprised ICAS, EC-ICAS, IFAS, ICWC, ICDSTEC, and the BVOs. The international donor community endorsed this emerging institutional framework, including the proposed structure at the Donors’ meeting held in Paris on June 23-24, 1994.


A February 1997 meeting of the NIS presidents and ICAS decided that ICAS (including its Executive Committee in Tashkent) and the IFAS in Almaty be merged. The successor organization was also called IFAS. At this meeting it was also decided that the presidency of IFAS would rotate in a two-year cycle among the NIS presidents. Also, a full time chairman of the Executive Committee of IFAS (“EC-IFAS”) with a conterminous two-year term was appointed.


In April 1999, the NIS presidents entered into a new agreement and a new charter (allowing non NIS states to become IFAS participants) concerning IFAS. This agreement established that IFAS is composed of six major units:

  • The Board of IFAS
  • An Audit Commission
  • EC-IFAS
  • Branches of the EC-IFAS in NIS states
  • ICWC, the ICWC Secretariat, the Scientific Information Center of ICWC (“SIC-ICWC”), and the BVOs; and
  • SDC, its Secretariat, and the Scientific Information Center under the Turkmenistan Desert Institute (“SIC-SDC”)


The Aral Sea regional institutional structures were established to foster regional cooperation, implement ASBP, mobilize financial and technical resources, and to coordinate donor activities within the framework of ASBP. It is now over a decade since the regional institutional structures were established. Today, some posit that the fact these institutions still exist proves that they have “passed the test of time.” Yet, it is abundantly clear that the regional institutional structures are ineffective and have failed to fulfill their mandates. The integrity of the institutional framework and its hierarchical relationships have seriously eroded over the years as a result of a number of factors, notably (i) lack of political will to address institutional issues in a timely manner, (ii) lack of clear mandates, responsibilities and accountability of IFAS and its sub-bodies, (iii) failure of donor commitment to fully engage EC-IFAS in preparation and implementation of projects, (iv) agreements between sub-bodies of IFAS (and national institutions) and donor agencies on ASBP without the involvement of the IFAS Board or EC-IFAS on donor financed projects and activities, (v) permanent location of EC-IFAS, (vi) inadequate funding by the states to cover core operational expenses of IFAS, (vii) lack of unified donor stance on institutional issues, regional cooperation and trans-boundary water issues, national and regional water management and sustainable development policies and practices, and (viii) donor support for establishment of new regional institutions that duplicate existing mandates of IFAS and its sub-bodies.


One of the major shortcomings of the institutional framework has been the ineffectiveness of the SDC. The establishment of the SDC was to broaden the mandate of the regional institutional framework to address the “sustainable development” dimensions of water usage, because at the outset it was recognized (particularly by the donor community) that regional water issues could not be solely resolved by ICWC. However, since its establishment in 1993, the SDC has largely been ineffective in spite of considerable assistance under the UNDP Aral Sea Basin Capacity Development Project (“ASBCDP”). Consequently, it can be surmised that after a decade, the absence of a solid foundation for sustainable development reforms is certainly not due to lack of institutional mandates, but rather due to the weakness of the environmental ministries (especially in comparison with the agricultural and water ministries that support ICWC) notwithstanding substantial donor support for capacity building within these ministries and for the SDC network.


Legal Issues

The USSR regulated the Aral Sea basin’s rivers under Soviet federal and Soviet republican laws. It is well recognized that this legal regime involved deliveries of cotton and other agricultural products to the Soviet federal government and subsidies back to the republics from Moscow. Nevertheless, the Water Equity Obligations of this regime remain poorly understood by the Aral donor community.


The Soviet legal regime deserves special mention for two reasons. First, the republics belying Western misconceptions about the Soviet state’s monolithic nature, often failed to fulfill their legal obligations. Second, despite its implementation problems, the Soviet legal regime attempted to rationally plan for the development of the Aral Sea basin, to maximize the aggregate benefits of utilization of the basin’s resources, and to share the benefits of this development among all the riparian republics. While perhaps not sustainable and while not without environmental problems, this regime nevertheless spurred economic growth in Central Asia. Also of no small importance, on paper this regime manifests exactly the type of basin-wide equitable cooperation favored under international law for international rivers.


The Soviet legal regime, however, was not an international regime. Absent some very specific actions by the republics, it existed purely under national law. When the USSR disappeared, the republics no longer had enforceable obligations between each other arising out of Soviet law.


New states, at the moment they attain their sovereignty, are subject to large number of legal obligations. They are not subject to any treaties, such as any collective defense treaties or customs union treaties. However, they are subject to customary international law, and as customary law, they are subject to a special kind of treaty that codifies customary law. Such codification documents exist in the field of treaty interpretation, state responsibility, and, as of recently and in the form of the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, international transboundary watercourses. Accordingly, although no NIS has become a party, at the moment the NIS attained their sovereignty, this 1997 treaty spells out what rights and obligations they had to each other under international customary law.


There is an added dimension to the applicability of international customary law in the context of Central Asian water. Customary law not only requires that states cooperate in order to build a rational and equitable regime for the long-term use of shared water resources, it also requires that states not take actions to disrupt any such established regime. To the extent that, at the date of the disassembly of the USSR, the NIS continued to engage in and implement the Soviet water regime, this regime may have acquired some international force as a rational and equitable regime in place. Accordingly, state actions to destabilize or reject this regime may have been, and may even continue to be, unlawful.


There are several treaties that suggest that the NIS have at various times and in various contexts agreed in express treaties to elevate the Soviet legal water regime into an international regime. There are also numerous treaties between the NIS calling for “new water allocation approaches” and otherwise agreeing to abandon the Soviet legal regime. The aggregate impact of interplay of these treaties under international law is unclear. Yet, the pro-Soviet regime treaties appear to be more specific and less declaratory than the anti-Soviet regime treaties, meaning that it would appear that there is at least a strong possibility that the Soviet regime was elevated to international legal status and is still, legally, in force, even if it is not complied with by the NIS.


Many donors and states have extended considerable time and energy into, respectively, urging the NIS to become parties to the 1997 UN treaty and debating whether or not it is in a state’s interest to become a party to this treaty. These efforts are troubling to the extent that they take place without an appreciation of the fact that accession to this treaty will not change the legal situation in the region as all the NIS are already subject to this treaty’s provisions as customary law.


The prevailing view among the NIS (and many donors) is that no international law currently applies to the region’s international watercourses and so a treaty is needed to fill a lawless vacuum. This is wrong. The actual affect of the NIS adopting a water treaty is that a new treaty will change the baseline created by the 1997 UN treaty’s interplay with other treaties in force. As long as the NIS do not understand the actual impact of their ratification of any new water treaties and as long as donors remain unwilling or unable to explain this actual impact, it would be dangerous, counterproductive, and irresponsible for donors to encourage any NIS to become parties to any new treaties.

Special UN Commission

The Dushanbe Declaration, in pertinent part, stresses that the NIS have decided to:

accept as justified UNDP’s critical observations about EC-IFAS’s activities, and as deserving of attentive consideration in EC-IFAS’s ongoing activities; . . .

note the necessity of creating a special UN commission entrusted with coordinating the Aral Sea Basin activities of international organizations and donors.

These two parts of the Dushanbe Declaration should be read together as “we, the NIS, admit that IFAS has its problems—now, you, the international community admit your mistakes and start coordinating yourselves.” Notably, the Dushanbe Declaration does not call for “creation of a new international institution” for addressing the water management issues in the region. Nor does it call for IFAS to be placed under the Commission. Accordingly, by the terms of the Dushanbe Declaration, the NIS have requested only that a new commission coordinate donors.


The only point on which all NIS appeared to agree was that a Commission would make a positive contribution if it coordinated donors. However, others suggested a broader mandate that would include (i) mobilization of funding for Phase 2 of ASBP, (ii) strengthening IFAS capacity through provision of financial resources, (iii) promoting the establishment of water/energy consortia in the region, and/or (iv) through the Commission’s transforming IFAS into a river commission as well-known and well-funded as that in existence for the Mekong River.


The Mission, however, relates its overwhelming impression that the main reason why some states would support a Commission mandate more expansive than donor coordination lies in an assumption that this would mobilize additional financial resources for the NIS.


Conclusions and Recommendations

Institutional Strategy

A UN strategy should be preconditioned on political commitment and consensus between the NIS at the highest level in addressing, comprehensively, water resource management issues in the region. Regrettably, the experience of the last decade shows that political expediency has prevailed over earnest consideration of issues.


Due to donor differences and vested interests of bureaucrats and technical specialists in the NIS, it is unlikely that the five presidents are fully cognizant of the gravity of the water management issues and their impact on sustainable development both at the national and regional levels. To resolve this impediment to meaningful domestic political will, the Mission recommends that the UN lead an effort to generate a letter from the Secretary General to the five NIS Presidents (on behalf of the donor community) setting forth issues that must be resolved within IFAS.


Consonant with the tenor of this proposed letter, discrete efforts should be made to address the institutional dead-ends of the current IFAS structure. As a first step, provided there is demonstrable commitment at the level of some of the NIS presidents, the UN may wish to consider establishing a UN Trust Fund for IFAS. At present, there is insufficient accountability among IFAS members regarding annual dues or the expenditures of such dues, nor is there stable or sufficient funding for the modest financial needs of EC-IFAS. The legal foundation for such a trust fund was laid by IFAS itself during the 2002 Dushanbe meeting, when four NIS presidents adopted a decision to centralize IFAS funding.


It is abundantly clear that the lack of donor coordination is a major issue that is recognized both by the states and the donor community. Coordination between the donors as well by IFAS of donor programs and activities has been a principle shortcoming of the water resource management and sustainable development efforts in the region over the past decade. At the regional level, the IFAS structures have failed effectively to coordinate donor activities, and within the donor community there is no lead agency to ensure effective coordination between donors. Although some initiative has been taken recently to strengthen donor coordination on an informal basis, the Mission’s assessment, based on consultations with the donor community and observation at the IFAS Donors’ Meeting, suggests that a more formal mechanism is necessary.


This more formal mechanism would be the Commission. However, the Mission notes no consensus between the NIS on the scope of the mandate of the Commission, although there is general support for, in some circumstances, creating a Commission. Likewise, on the donor side, it is perhaps an opportune time to pursue donor coordination, as the major donors all face a number of problems that they cannot resolve alone. Unified donor stances on the structure of IFAS, accountability, the role of SIC-ICAS, and similar issues would be likely to produce results useful to all donors. The Mission notes, however, that the Dushanbe Declaration perhaps did not intend this aspect of donor coordination. Furthermore, the most critical aspect of creating a Commission would be in securing the consent of major donors to be accountable to it. Therefore, creating a Commission at this stage, solely for the purposes of donor coordination, would be premature without a consensus among the five states and uncertainty about donor consent.


Notwithstanding the above, the idea of creating a Commission would merit further consideration provided there is consensus among the states and the donor community on a broader mandate for such a Commission. The Mission, therefore, recommends that the UN should continue to pursue the idea of establishing a Commission with the NIS and the donor community.


Legal Strategy

By any measure, the NIS evidence insufficient capacity in international law. Unfortunately, donors to date have exacerbated this lack of capacity through aid initiatives that have disregarded international law and failed to consider the international law applicable to the NIS. As the Aral Sea Basin’s problems are so obviously transboundary and as international law takes precedence over national law in each of the NIS’s domestic legal systems, aid initiatives focusing on reforms to national legislation have also been compromised by donor failure to clarify applicable international law.


Because neither donors nor the NIS have educated themselves about the very complicated succession, treaty, and customary law issues impacting water resources in Central Asia, the situation in Central Asia today with regard to water law is more confused than it was even in 1994. It is more confusing due to the past decade’s failure to see resolution of simmering disputes, new or potential water disputes with China and Afghanistan, and the appearance of roughly 150 new NIS water agreements, many donor driven. For the sake of the success of current and future donor programs and also because donors are responsible for worsening the situation in the NIS, the Mission considers it necessary for the donor community to support the completion of a thorough baseline legal analysis of Central Asian’s international water regime as soon as possible.


SEE BELOW FOR THE FULL REPORT

References

See also

  1. Status and importance of water-relevant international legal instruments for the 5 Central Asian countries
  2. UNRCCA

External Resources

Attachments

 UNDP Central Asian Water Mission 2003 Final Report.doc

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