15:17, 10 мая 2016

Международное право в области совместного использования трансграничных водотоков (на примере республики Казахстан)


The problem of legal order of international watercourses is one of the oldest in international law and it has been a burning is­sue for about two thousand years. Globally there are a good num­ber of rivers and also underground water-bearing basins which belong to the category of "international" water objects, i.e. such as those that either cross the border between two and more countries or are divided by borders. Besides navigation, they are used as the sources of water supply for various industrial purposes, agricul­tural irrigation, electric power production, disposal of domestic and factory waste. Meanwhile, many regions and countries lack water resources. Growing pollution and decay of developed water resources has become one of the most critical socio-economic and ecological problems.

Water is a vital element. Socio-economic development is closely related with water. The world is known to be suffering from water crisis. The statistics says that more than 2 billion people lack water supply in more than 40 countries, 1,1 billion people do not have enough fresh water, and 2,4 billion people do not have an access to clean drinking water. The current forecast guarantees that by 2050, at least, one out of 4 people will have been living in the country the population of which will suffer from chronic diseases or fresh water deficiency.

Speaking about countrywide water deficiency growth and water supply regulations, we should mention the increase of con­flicts on the subject of using and access to limited sources. Water is noted to have been a reason for growing conflicts between nations. This conclusion seems to be credible, but is not absolutely truthful. Water is a widely-used limited source and there are many exam­ples of water serving as a mediator of cooperation for common interests. Probably, today we can have more reasons to acknowledge international water resources as possible agents of cooperation or means of profit distribution after their common use together with a positive influence on other aspects of cross-cultural relationships. These processes force the countries to develop international part­nership in the sphere of consumption and international water con­servation.

The Republic of Kazakhstan is divided into four main hy­drologic regions: the basin of the Ob River that runs in the Arctic Ocean, the basin of the Caspian Sea, the basin of the Aral Sea and inland lakes. Among them there are 39 000 rivers and brooks, out of which 7 000 run for 10 km. Surface waters are unequally distrib­uted across the country and known for dramatic longstanding and seasonal dynamics. The central part of Kazakhstan obtains only 3 % out of the whole water supply on the country. Western and south-western regions (Atyrau, Kyzylorda and Mangistau region in particular) have got significant water deficiency.

According to the expert's assessment, Kazakhstan is one of the countries on Eurasian continent that suffers from significant water resource deficiency. Almost a half of surface waters (44,9 m3) come from neighboring countries. For the last 15 years there has been a tendency of decreasing natural resources of surface waters in Kazakhstan. Moreover, the general volume of annual flow de­crease is dated, about 90 % equal to the flow decrease of boundary countries.

All the major rivers of the country (the Irtysh, the Ili, the Syrdaria, the Ural and others) are international. Kazakhstan pays a good attention to the issues of use and protection of water re­sources, including international. In "The Strategy of 2050": in a new political course of the country dated from December 14, 2012 the President N.A. Nazarbayev refers significant water deficiency to ten global challenges of the XXI century.

The level of scientific development of the topic is not high. In the publications of the last decade a huge attention has been de­voted to a global issue of fresh water crisis and water resource use of international rivers. The most part of works describe geographi­cal, technical, economic, social and other aspects of the problem. Data analysis (of Highest Certification Committee on the topic of dissertations for degrees of candidate and doctor of law who have defended for the last several years) has showed that the theme of water resources of Kazakhstan has not been studied purposeful­ly. The problem of water supply and shared use of international water resources is one of the main knots of conflicts. The highest significance of research was depicted in general theoretic and spe­cific scientific works of Kazakhstan lawyers (Mukhasheva А.А., Suleimenova S.Zh., Gavrilova Y.A. and others), and their foreign colleagues (Eyubov E.Y., Vystorobets Y.A., Porokh A.N., Rysbkov Y., McCaffrey S., Weits R., Salman М.А. and others), also in work reports of International Law Commission, international legal notes of universal, regional and bilateral character.

Theoretical and practical value of the research is implied in the fact that contains factual information relying on which the very analysis and appropriate conclusions have been made. The current regulations of the research can be used in: further studying of the law of the non­navigational uses of international watercourses; helping specialists engaged with problems of the law of the non-navigational uses of international watercourses; scientific research and an educational process of schools.

Surface and underground waters do not follow political bor­ders. That means that countries must cooperate to manage water resources.

Speaking about the role of international conventions in regu­lating social relationships in the Republic of Kazakhstan, it should be mentioned that all the norms of international law (besides the water one) are the part of Kazakhstan legal system. Being an open democratic state, the Republic strives for partnership with interna­tional communities in all cross-cultural spheres of life that causes the need for unified legal regulation of social relationships.

Kazakhstan joined the Convention of Economic Commission for Europe of the UN (ECE) on conservation and use of interna­tional watercourses and international lakes (Water Convention), signed in Helsinki (Finland) in March 1992, by the Law of Kazakh­stan since October 23, 2000.

The Parties of the Convention number 39 titles, including the European Union (EU). Russia joined the Convention on April 13, 1993. The Convention became effective for Russia on October 6, 1996. Later the Republic of Uzbekistan (one of the Central Asia countries) joined the Water Convention (September 4, 2007). In 1992 Kazakhstan and Uzbekistan joining the Water Convention of ECE proves not only an expression of goodwill and tendency to act within legal limits of TWR regulations, but also provides op­portunities for common efforts to fulfill the Convention, including both national and international (international) levels. That implies the development of legal and other measures on realization of the Convention (appointment of responsible people, control over work, etc.).

In compliance with the decision of the Sixth Conference of Water Convention parties held in Rome (Italy) in the period of No­vember 28-30, 2012, starting from February, 2013, the Convention of ECE on the conservation and use of international watercourses and international lakes will be available for joining of the coun­tries that are not the part of ECE of the UN, i.e. the Convention will become global. As a result, its role and significance will grow while settling difficult international problems of international wa­ters use.

The importance of Water Convention for Kazakhstan is out of the question. Suffice it to say that almost the half of surface water supplies comes in Kazakhstan from neighboring countries. All the main rivers of the country (the Irtysh, the Ili, the Syrdarya, the Ural and others) are international.

The UN Convention on «The Law of the Non-navigational Uses of International Watercourses» accepted on May 2, 1997 in New-York (hereinafter referred as - the UN Convention of 1997). As the Convention on the law of the non-navigational uses of in­ternational watercourses dated from May 21, 1997 (the UN Con­vention of 1997) did not become effective (but its statements are widely used in international water law, because its sets the main le­gal principles that create the fundamentals of international waters regulation), the Convention consider the measures for acceptance on a global scale. The Russian Federation signed the UN Conven­tion on November 15, 1997. The Republic of Kazakhstan is taking measures to join the UN Convention of 1997.

According to R.M. Valeev and G.I. Kurdyukov, the method of bilateral control prevails in international ecological law over the method of multilateral control, because the number of bilateral agreements is bigger than the number of multilateral.

After the collapse of the Soviet Union and formation of in­dependent countries on its territory many domestic problems of use, distribution and conservation of water resources have gained an international character. Since the beginning of the 90s all the countries of Eastern Europe, the Caucasus and Central Asia have taken measures to settle international water resource partnership. Most of them have become members of international conventions and agreements in this sphere and/or signed mutual bilateral and multilateral agreements and created joint institutions for encour­agement of international water partnership.

The agreements on international waters contain the statement about creation of joint institutions or systems aimed at serving as a coordination center of international cooperation on the issues of operational management of watercourses of common use. Such in­ternational joint institutions play the role of an important element of most legal regimes of watercourses. They are used as tools to co­ordinate the governmental efforts applied for management of wa­ter resources, especially by the means of matching contradictory interests and recognizing the opportunities for reciprocal work.

In the whole variety of agreements on international waters we can distinguish three types of institutional organizations of state cooperation:

  • lack of agreement about the authority of agreement realiza­tion;
  • appointment of Authorized agents (government representa­tives) to support the agreement realization;
  • creation of joint commission of supporting the state partner­ship in agreement realization.

The agreements on international waters, that do not imply any authority formation or institutional mechanisms, are seldom noted. On the whole, it is natural for the agreements regulating a close range of problems. For example, the agreement between Russia and China on the main principles of shared economic use of separate islands and adjoining water area on the boundary rivers of 1997. But there is no proof of the issue in practice of international cooperation of Kazakhstan.

Frequently, countries sign an agreement that does not con­sider any authority or another institutional mechanism; however, with time they realize the importance of institutional mechanism agent for its more effective application. For example, due to the Agreement between the Government of Kazakhstan and Kyrgyz­stan on the use of water facilities of international use on the Chou and the Talas Rivers (2000) the Commission was created later than the year of 2006.

The Institution of Authorized is mentioned in the agreements signed since the beginning of the 90s together with Eastern Europe, the Caucasus and Central Asia14. At the same time, currently the institute of Authorized does not dominate in the mentioned region.

The institution of Authorized, unlike the institution of joint commissions, lacks extra staff members or other organizational ele­ments, the main function of which was to realize an agreement and accepted decisions. The very institution also lacks own finances, used for agreement realization campaign. The functions and objec­tives of the Authorized are generally described in corresponding agreements.

The creation of joint commission to support the state coop­eration on the issue of agreement realization for Kazakhstan is the main mechanism of control of international water resources. Re­lying on the signed agreements on the cooperation in the sphere of water resource use and conservation between Kazakhstan and other neighboring countries (Russia, Kyrgyzstan, Uzbekistan, Ta­jikistan, China) the joint commissions on agreement realization were created.

February 18, 1992, Almaty (Kazakhstan) the first international multilateral agreement on international waters in the region of CIS - the Agreement between Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan and Turkmenistan on the cooperation in the sphere of shared management of use and conservation of international water resources was signed. In compliance with the very Agreement In­ternational Coordinating Hydro Economic Commission (ICHEC) of Central Asia was established. The ICHEC of Central Asia must define water resource policy in the region taking into account all the branches of economy, complex and rational use of water re­sources, prospective program of regional water supply and its re­alization measures (Article 8). Article 9 of the Agreement appoints executive and controlling bodies of the Commission - basin hydro economic unions such as «Amudarya» и «Syrdariya», that are re­sponsible for the functioning of main river basins of the region - the Amudarya and the Syrdariya Rivers respectively.

One of the best examples of successful bilateral partnership "in the spirit of the UN Water Conventions" - the UN ECE Wa­ter Convention of 1992 and The UN Convention of 1997 is one between Uzbekistan and Kazakhstan about passing winter and spring floods on the Syrdariya River. In such conditions the coop­eration between Uzbekistan and Kazakhstan on the lower Syrdari- ya safety guarantee deserves specific attention and research. In particular, in February of 2005 was a critical situation with spring floods, the Parties agreed that Uzbekistan would pass about 2 km3 of floods through the Arnasai lake system (Uzbekistan) within 2 months. That step was the only one possible not to let floods in the southern regions of Kazakhstan and stream-bank erosion of Shardarin basin (Kazakhstan), the capacity of which is not possible for a big volume of floods. The UN Convention of 1997 procedures and relevant statements (such as "mutual help", "notification", "consultations", etc.) were followed, although, Kazakhstan and Uzbekistan were not its Parties. The work was done quite quickly.

During consultations there was a verbal agreement and measures taken on the issue of two UN Water Conventions providing safety of Shardara dam and later- the Protocol was designed to be signed by the President of Uzbekistan.

In 1992 the International Coordinating Hydro Economic Com­mission (ICHEC) of the Aral Sea basin was formed. That proved to be a reflection of state officials' understanding of importance of common management of water resource use and conservation. To overcome an ecological crisis and improve a socio-economic situ­ation in the basin of the Aral Sea, the governors of Central Asia countries created the International Fund for saving the Aral Sea (IFSAS) in 1993. Still, we have failed to manage with the problem of the Aral drying. The sea itself is divided between Kazakhstan (the northern part) and Uzbekistan (the southern part). Meanwhile, there is a progressing irrigation of the Aral northern segment, but the irrigation of the southern segment is stagnated or is likely to be stopped under developing of hydrocarbons in the field, which were deposited on the bottom of the sea.

On the one hand, Kazakhstan and Uzbekistan really share the interests on the issue of regional management of water resources. Two countries consume the stock of Central Asia water resources for agricultural irrigation and common consumption. Unlike this fact, Kyrgyzstan and Tajikistan try to recycle water resources into electric power, the part of which they can sell to neighboring countries.

Kazakhstan and China are joined by 24 international rivers, the biggest of which is the Irtysh, the Ili, the Talas, the Horgos. These river resources are the most important source of fresh wa­ter for Kazakhstan.

International consumption of water resources has been be­coming a burning issue of foreign economic policy of Kazakhstan and Central Asia. The argument does not deal only with economic ques­tions, but also with political, economic, cultural and other aspects of na­ture protection.

Nowadays water issues are discussed within the framework of Joint Kazakhstan-Chinese commission on use and conservation of international waters. Till the present time 9 meetings of the com­mission have been held. The main official document that hast to regulate water relations of Kazakhstan and China was signed in 2001. It is called "Partnership in the sphere of use and conservation of international waters".

Besides the very document, within the period from 2001 to the present day more than twenty agreements and contracts have been signed. They regulate the rational use of international water re­sources in Kazakhstan and China. During the sixth meeting of the commission (December 4, Beijing) the Chinese party was given a project on "The Concept of Apportionment on the Irtysh and the Ili Rivers", and also the project on "The Agreement on International

Waters Quality Control and Pollution Prevention". Moreover, the governments of Kazakhstan and China concluded an agreement on international waters quality control, confirmed by the govern­ment regulation of Kazakhstan since September 30, 2011 № 1114.

Despite the entire necessary normative regulatory database for final solution of water crisis between the countries, in fact, the Chinese party does not carry out its obligations.

Chinese Water code, accepted in July of 1988, in the articles 51 and 52, confirms the prevailing statements of possible interna­tional agreements on international water resource use. The code empowers China and its territorial board to settle water use issues for the country benefit. The increase of water intake from the Irtysh and the Ili Rivers on China's territory has become a controversial moment in Kazakhstan-China relationships in the sphere of shared use of water resources. The problem takes the first place in the agenda of international waters use by China's neighboring coun­tries. The Irtysh joins three friendly countries united by strategic cooperation - China, Kazakhstan and Russia. The river has been the topic of disputes on different levels for twenty years. Unlike Russia and Kazakhstan mutual agreement on rational river man­agement, china takes a different position. China is planning to build new canals, reservoirs, dams, HES on the Irtysh and other river heads of international rivers, that may cause ecological disas­ter for Eastern and Central Kazakhstan.

Being signed an international agreement must contain the wa­tercourses that it can authorize. Such requirement is described in the UN Convention of 1997 on the law of the non-navigational uses of international watercourses. The Convention states: «The coun­try of watercourse takes part in use, development and conserva­tion of international watercourse in the just and rational way. Such participation implies the right to use the watercourse, support its conservation and development ...» (Article 5). «The country of the watercourse while using an international watercourse on its ter­ritory takes all the required measures to prevent severe damages for other countries of the watercourse», in case of the damage they claim «a compensation issue» (Article 7). China did not put a signa­ture on any international legal document of water bodies.

Being signed by China, bilateral documents regulate only the opportunity to state "a significant influence", but do not contain any legal features for compensation of damages and elimination of influence source.

Luzyanin S. emphasized China's reluctance to discuss the issue of the Irtysh in trilateral format. At the same time the very water issues of China cannot be solved by Asian countries of the Mekong and the Brahmaputra river basins. China considers Central Asia as an area of cheap electric power delivery.

China's consumption of international water bodies reflects its water policy towards neighboring countries, in the contracts of which China regulates the principles of neighborly relations. Such policy contradicts the principles of friendship and good relations, cooperation within the framework of reciprocal equal relationships and it leads to conflicts, interethnic and territorial problems.

Besides the longest border in the world, Russia and Kazakh­stan have many common watercourses that gained the interna­tional status due to the collapse of the Soviet Union. Common use of international waters implies the search of compromises settling complicated problems. They must be for both countries' benefit and it should be good for a constructive dialogue on rational use, conservation and management of water resources.

The main rivers such as the Ural, the Tobol, the Ishim, and the Irtysh run across Kazakhstan starting from Russia. The main threat of their ecological balance damage is pollution by harmful and toxic substances, done by industrial plants and agricultural farms.

The basic pollutants of international waters are nitrogen com­pounds. (1-6 MPC), oil products (1-3 MPC), copper (1-3 MPC), zinc (1-4 MPC), borates и sulphates (1-7 MPC). Without holding ecolog­ical campaigns the situation in the region can get beyond control. It will lead to the consequences such as: water balance deterioration; the deltas decay; water resource uselessness for agricultural work; decline of social and economic status of the population, that live along the rivers; people's ill health.

To solve the abovementioned problems the Republic of Ka­zakhstan pays attention to the importance of international interac­tion in the sphere of use and conservation of international water resources.

Nowadays the exclusive importance refers to the issues of in­ternational partnership on shared water resources use.

Kazakhstan is an active follower of solving all the existing questions about international water resource use that correspond to global legal norms.

The Ural, the Yessil, the Tobol, the Irtysh, the Big and Small Uzen rivers - are among twenty international rivers that realize the cooperation between Kazakhstan and Russia in the sphere of use and conservation of international water bodies.

Contractual and legal database of Kazakhstan and Russia in the sphere of use and conservation of international water bodies consists of the following documents:

  • Agreement on the main principles of cooperation in the sphere of rational use and conservation of international water bod­ies of CIS countries. (Moscow, September 11, 1998)
  • Agreement between the governments of Kazakhstan and Russia on the partnership in the sphere of environmental protec­tion since December 22, 2004;
  • Agreement between the governments of Kazakhstan and Russia on the common use and conservation of international water bodies since September 7, 2010 (instead of the Agreement between the governments of Kazakhstan and Russia on the common use and conservation of international water bodies since August 27, 1992).
  • Russian-Kazakhstan agreement on neighborly relations and unity in the 21st century (Yekaterinburg, November 11, 2013). The parties of the agreement develop cooperation in the sphere of environmental protection paying attention to the Caspian Sea status and international watercourses.

Today Kazakhstan-Russian commission on common use and conservation of international water bodies functions (hereinafter referred as - Commission). Since 1993 up to 2013 21 meetings of the Commission were held.

Co-chairmen of the Commission are vice-minister of Kazakh­stan environmental protection and deputy of Federal Agency of water resources.

Within the framework of the Commission the following workgroups are formed:

  • Workgroup in the basin of the Ural,
  • Workgroup in the basin of the Irtysh,
  • Workgroup in the basin of the Ishim,
  • Workgroup in the basin of the Tobol,
  • Workgroup in the basin of the Big and Small Uzen rivers
  • Workgroup in the basin of the Kirach channel (the Volga).

Due to the Commission meetings and their workgroups a sig­nificant progress has been achieved in bilateral water cooperation. The separate attention is given to the issues of saving the ecosys­tem of international rivers.

Within the Commission framework we assess the condition and results of international water resource monitoring, hold a common check of agricultural activity of the plants, that can in­fluence water resources, pass the floods, mind the reservoirs and terms of territorial water supply in an economical situation. The majority of decisions accepted by Kazakhstan-Russian Commis­sion is realized.

At present Kazakhstan has signed more than ten agreements on the use and conservation of international water resources with neighboring countries.

Since the demand of water is increasing together with increas­ing needs, we have to realize a determined policy in the sphere of control of water resource use, the policy integrated with various aspects of territorial water supply, economic and environmental branches. The use of water resources is connected with a number of contradictions that can appear on intersectional, local and inter­national levels. To settle the very problems we have to communi­cate on a cross-cultural level and develop global partnership.

Water is a vital source and humanity, during the whole life, has been creating communities, economy and cities near the rivers. When we build dams, intake water, use it, pollute it, sell the resource and worship water, actually, we play with hydrologic cycle. The real prob­lem is in the need for management of water resource use, fresh water ecosystem and damages. Maybe, in early times mankind did not have such a big demand of water, treating it as a renewable source because, at least, on a local level the hydrologic cycle, seasonal variations of precipitation and flood provided constant water resumption. Glob­ally, water is viewed as limited and vulnerable resource. Hydrologic cycle does not follow political borders. In the result of aero-aquatic exchange even the farthest water ecosystems are connected with the world. The confirmation of its interdependence will lead to proper partnership and, factually, to strengthening of international connec­tions сотрудничеству in the sphere of water resource use.

Kazakhstan has got a good opportunity to play a leading role in the development and improvement of international efforts to support our future water resource use. To solve the problem of interests con­flict between irrigation and hydro energy in the basins of international rivers Petrov G.N., Akhmedov №.М. suggest an approach that lacks all the disadvantages of abovementioned ways and offers a simple solution. The main basis for the idea is a principle of countries with international basins interaction. The countries owning the river heads (and owners of dam and power stations) serve to regulate the course of the countries owning the lower rivers that are used for irrigation. The service of course regulation acts as transition from national en­ergy regime of upper river to irrigational regime which the lower river countries are interested in. the latter ones can compensate all the losses and expenses wasted by the upper river countries. The very ap­proach is confirmed in «the Agreement between the governments of Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan on the use of the Syrdarya basin resources», (Bishkek 17.03.1998).

The country depends on and need coordinated international acts more and more. Those who are informed and understand our collective impact on fresh water resources can achieve consensus that can make common efforts possible. Today international part­nership in river resource use is getting important (especially the use of the Aral and Caspian Seas' basins). International Coordi­nating Hydro Economic Commission (ICHEC) of Central Asia and Kazakhstan-Russian commission on the issues of use and conser­vation of international water resources work successfully.

The main unresolved problems of international water resource relations are:

Arrangement of trilateral Russian-Kazakhstan-Chinese cooperation in the sphere of common use and conservation of international water resources of the Yertis river basin;

Conclusion of hydro electric balance of the Bid and Small Uzen rivers;

Pollution and drying of the Zhaiyk river resources in the result of economic activity in Orenburg region (Russia) and Aktyubinsk region (Kazakhstan);

Fragile hydro electric balance and critical situation with water quality in the basin of the Tobyl river.

The small rivers also deserve our attention. They function as capillaries supplying the main water arteries. All the states are interested in fresh water; healthy water that is why, the search of compromise is possible and wanted due to the increasing fresh water deficiency.

It should be noted that today the government must rely mainly on organized and fast realizable measures for stable development, which must be realized for problem solution connected with global water resources.

ХАСЕНОВА Мольдир Нургазыевна

магистр права, старший преподаватель кафедры Права и международных отноше­ний Казахстанско-Американского свободного университета (КАСУ), г. Усть-Каменогорск, Казахстан


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