Trans-border river between Afghanistan and Pakistan

World over conflicts exist between states and within the states over the use of waters crossing boundaries. But, nations have developed mechanism for resolution of conflicts and most often such disputes are resolved through the facilitation of World Bank, Asian Development Bank and other international organisations.

Pakistan also shares river Kabul with Afghanistan but both have no water sharing agreement, though Afghanistan had signed a treaty with Iran on the Helmand River, from 1970s but not with other Central Asian States.

The Kabul river originating in the Hindu Kush gets abundant flows from the Kunar and several minor rivers originating in Pakistan’s Chitral region, running east past Kabul and Jalalabad before entering Pakistan. In Pakistan, the Kabul river assimilates with the Swat river and its tributaries, ultimately joining the Indus at Attock. Livelihood of around 25 million people living in the basin is dependent on the Kabul river while the dependence is expected to grow by 37 million in 2050.

Pakistan got focused with the announcement to commence work on the construction of the $236 million Shahtoot Dam on the Kabul river. With a height of 92 meters, it is designed to store 146 million cubic meters of water, boosting irrigation, having an estimated capacity to store 146 million cubic meters of potable water for 2 million residents of Kabul, and to irrigate 4,000 hectares of land in the Charasiab district.

Since most of rural population is without adequate access to drinking water and only 5 per cent of its population nationwide and 1 per cent in rural areas have access to improved sanitation, the government of Afghanistan considers the construction of such dams necessary.

Afghanistan produces merely 300MW of power — just 2 per cent of what is generated by Pakistan. Only 28 per cent of Afghan households are connected to power supply systems. On the other hand, this river provides 85 per cent of irrigation in Charsada, 80 per cent in Peshawar, and 47.5 per cent in Nowshera. This is also the main source of drinking water for millions of Pakistanis living around the basin.

The Warsak Dam, constructed downstream gives 250MW of electricity for the Peshawar Valley. With new dams on the upstream, water flow into the Warsak canal can be reduced by 8-11 per cent.

Pakistan is quite apprehensive about the Shahtoot river, which may reduce water flowing into its northern areas and beyond. In response, Afghanistan claims this will not divert any water flowing into Pakistan. Pakistan too has built several storage dams on Chitral river, impacting water availability in eastern Afghanistan. However, effort to effectively address these concerns are lacking on either side.

Experts opine that Afghanistan has the rights to use its water resources in line with the UN International Watercourses Convention, adherence to which would help it avert environmental harm and prevent infringing on the rights of riparian countries.

Under the International law, rivers which separate boundaries of two states from each other are known as boundary rivers or non-national rivers. They are owned by one or more than one state. States through which the rivers run are termed riparian states. These riparian states have rights over the river.

Regarding international rivers, there is a rule in international law that a state cannot alter the natural flow of the river which may be advantageous to other riparian states. In this connection celebrated jurist Oppenheim opined that it is not within the arbitrary power of one of the riparian states to alter the flow of the boundary and international rivers for it is a rule of international law that no state is allowed to alter the natural conditions of the territory of neighbouring state. Normally, problems as to the use and utilisation of river waters are settled by the riparian states through the conclusion of treaties. In the absence of any treaty, disputes are likely to arise between them as no definite rule exists in respect of the use of water of such rivers.

While launching the project the interests of co-riparian states must be taken into account. In case of rivers forming part of a drainage basin, each riparian state is entitled to a reasonable and equitable share in the beneficial uses of the waters of the basin. This principle is applied in numerous treaties. Essentially, while inking such treaties paramount consideration is to prevent the injury to the stakeholders in the most equitable manner.

Associated with it is the approved draft Article by Law Association on the uses of waters of international rivers, which resolved that these should have the title of the Helsinki Rules on the Uses of Waters of international rivers and certain international drainage basins, of approval, and break new ground in certain respects, for example in the proposed rules to deal with water pollution and floating timber. At least, the draft Articles reflect an enlightened appreciation of the new problems connected with regulations for the waters of international rivers and drainage basins, and could well serve as a basic draft for a proposed general Convention.

In this context, both Pakistan and Afghanistan have to respect the rights of each other as upper riparian and the lower riparian of the Kabul river. Equitable and reasonable use of water will lead them to a “win-win” solution. The 1997 UN Convention on Non-Navigational Uses of International Watercourses — to cause no harm to each other — provides the framework.

It is not out of place to mention that over 150 treaties have been signed over water, around which international law governing the sharing of water has evolved. It is high time that both sides exercised the option of dialogue to resolve the issue amicably.

Published in The Express Tribune, March 30^th, 2022.

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