This paper was published by the Georgetown International Environmental Law Review in January of 2003.  A final version of this paper can be found on Lexis or Westlaw at the following citation:

Stalemate in the Aral Sea Basin: Will Kyrgyzstan’s New Water Law Bring the Downstream Nations Back to the Multilateral Bargaining Table?

Gregory E. Heltzer*

Contents

I. Introduction.....

II. Causes of the Current State of Affairs in Central Asia.                     

A. Soviet Policies Still Wreaking Havoc Today......

B. Water Anxiety Grows: The Competition Between Upstream and Downstream Nations.................

C. Major Environmental Concerns: Drawing the World’s Attention.............

D. Upsetting the Balance.................

E. The Regional Structures in Place.....................

F. Major International Efforts and Pressure...............

G. The Rise of the Bilateral Agreement and Weakness of International Accords: Kyrgyzstan Forces the Issue.

III. International Law and Water as an Economic Good.....................

A. A Right to Water?..................

B. International Law and Free Water....................

IV. Kyrgyzstan’s New Law and Its Effect on Regional Discussions.........

A. Kyrgyzstan’s New Law and the Dublin Statement.............

B. Kyrgyzstan’s New Law and Implications for the Contested 1992 Almaty Agreement

C. Kyrgyzstan’s New Law Clarifies Aspects of the 1998 Syr Darya Framework Agreement...........

D. Kyrgyzstan’s Equity Argument.         

V. Solving Central Asia’s Water Stalemate..............

A. Reinstitute the Local Fee: When Fees Were Eliminated, Irrigation Became Wasteful..............

1. The Efficient Traditional Method of Irrigation with Strong Local Oversight.............

2. The Inefficient Soviet Style Irrigation Method and the Wastefulness of Free Water...........

3. The Importance of the Fee.............

VI. Conclusion....

VII. Appendix A: Map of Central Asia.                     

VIII. Appendix B: Timeline of Important Agreements and Events in Central Asia Since the Fracturing of the Soviet Union.......

I. Introduction

The fledgling nations of Central Asia – Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan – are dependent on the Amu Darya[1] and Syr Darya[2] for their water resources.[3]  These rivers[4] act as a “cultural, economic, geographical and political core for Central Asia.”[5]  The Amu Darya and the Syr Darya rivers account for ninety percent of the surface water in the Aral Sea Basin (the Basin) and support seventy-five percent of Central Asia’s population (forty-five million people).[6]  The Basin covers over 1.8 million square kilometers and is almost entirely composed of the five Central Asian nations.[7]

Historically populated by agrarian societies, the region contains plentiful arable land; however, most of this land is only useful when irrigated.[8]  Large-scale irrigation was made a reality during the Soviet reign.  Since then, it has decimated the water resources of the Basin in terms of quantity and quality.[9]  This stress on water resources is most clearly manifested in the precipitous decline of the Aral Sea itself.  During the last forty years, the sea has shrunk to one-third its historical[10] size.  The Aral Sea, located at the terminus of the Basin, is fed almost entirely by the Amu Darya and the Syr Darya.[11]  Because the rivers struggle to reach the sea, it is easy to conclude that overuse due to irrigation is at the root of the problem.

Over the last several decades, the Soviet Union’s geographical hold, “economic might and political-military power”[12] allowed it to dominate water management in the region.  Therefore, for much of the century the Kremlin was the governing body for settling water disputes in the region.[13]  The collapse of the Soviet Union in 1991 not only stunned the West, but also provided for an entirely new balance of power in Central Asia (not limited to water disputes).  The Central Asian republics, now each its own sovereign nation, have competing use interests for the waters of Central Asia.[14]  “None of these states is yet in a position, geographically, politically, economically or militarily, to dictate management policy for the Basin on its own terms;”[15] this makes negotiations an attractive method for resolving disputes.

Despite the power parity in the region, geographic and demographic statistics indicate that some nations have significant claims to future water allocations in the region.[16]  These claims should be taken into consideration in any water negotiations.  Four nations[17] have primary stakes in the region because their populations are almost entirely dependent on the Basin’s water: Tajikistan is entirely within the Basin; 99% of Uzbekistan is in the Basin; 99% of Turkmenistan’s population and 80% of its land are within the Basin; and 70% of Kyrgyzstan and more than half of its people are in the Basin.[18]  Though they have smaller percentages of their populations and landmasses dependent on the Aral Sea Basin, Kazakhstan and Afghanistan also have considerable interest in the region’s water allocations.[19]  Looking at the region from a basin perspective, no nation has a larger claim than Uzbekistan, which controls 25% of the Basin’s area and has 50% of the Basin’s population.[20]  Understanding these nations’ dependency on the waters of the Basin helps explain the current state of negotiations for water in the region.

The population of the Basin is largely dependent on water because agriculture is the leading economic force.[21]  The style of agriculture employed is “heavily dependent on extensive irrigation, requiring the application of huge quantities of water.”[22]  This form of irrigation has depleted all surface water in the Basin.[23]  Following the demise of the Soviet Union, the principal issue in this arid region has been finding a way to equitably allocate the region’s surface waters.  As Uzbekistan and Turkmenistan try to maintain their stranglehold on the region’s water withdrawals,[24] other Basin States are clamoring for an increase in their water share.[25]  The tensions associated with managing the region’s water have been steadily increasing, largely because of the upstream water-rich nations’ ability to cut off supply with Soviet-era infrastructure designed to control flow for the region.[26]  The cutoffs, used largely in negotiations over future water allocations and payment for infrastructure upkeep and water storage, have sparked acrimonious, and sometimes violent, relations among the nations.[27]

International negotiations over water in the Basin have been active for over a decade, and many multilateral agreements have been reached.[28]   However, these agreements[29] do not have adequate enforcement mechanisms[30] and have not held up when the region has experienced a drought or an especially cold winter.[31]  More distressing than the failure of these agreements is that the downstream nations, Uzbekistan and Turkmenistan, have changed their political course and now boycott regional negotiations; instead, they favor politically expedient but environmentally negligent bilateral agreements with the upstream nations.[32] 

The failure of these multilateral agreements is largely the result of conflicting water uses by upstream and downstream nations.[33]  For example, Kyrgyzstan, an upstream nation, desires to release water from its dams throughout the year and especially during the winter to generate electricity through hydropower to keep its cities lit and warm.[34]  However, this use directly conflicts with the downstream nations’ agricultural use.  The downstream nations want Kyrgyzstan to curb its water release until the spring and summer growing season. [35]

Bilateral barter agreements between upstream and downstream nations have served to mitigate these competing uses.  Since 1994, Kyrgyzstan has been receiving cotton, natural gas, oil, and coal from its downstream neighbors in exchange for holding the majority of the Syr Darya’s water back until the growing season.[36]  Meanwhile, on the larger Amu Darya, upstream Tajikistan has been learning from Kyrgyzstan’s example and is also orchestrating barter agreements with downstream users.[37]  The downstream nations are essentially compensating the upstream nations for infrastructure upkeep and for curbing the release of water during the winter months so that there will be enough water for lucrative downstream agriculture during the growing season.

Unfortunately, these bilateral agreements are failing as well.  Such agreements are generally informal, the terms of the agreements are not released for public examination, and if the agreements are violated they are difficult to enforce.  Water released to downstream users can be used as a political tool to force payment for water or the settling of debt owed.[38]  The upstream nations justify these political water games because they feel “shortchanged” by the barter agreements and instead want cash for maintaining upstream infrastructure.[39]

Upstream Kyrgyzstan has shaken up the status quo of yearly bilateral agreements to curb water release during non-growing periods by trying to turn water into a commodity.[40]  Kyrgyzstan wants to replace barter agreements with cash compensation for water released to its downstream users, Uzbekistan and Kazakhstan.[41]  While this may sound similar to the barter agreements already in place, charging downstream nations cash for water is unprecedented in the international community.  Uzbekistan and Kazakhstan have condemned this move, focusing their attacks on the law passed by the Kyrgyz pParliament, while ignoring the Kyrgyz explanation for the law.[42]  The law calls for the selling of water as a commodity.[43]  Kyrgyzstan desires to sell water at a price that would extract enough in fees out of its downstream neighbors to pay the downstream nations’ equitable portion of Kyrgyzstan’s yearly U.S. $25 million dollar infrastructure upkeep bill.[44]  Attempting to eliminate the barter agreements in favor of a fee for water could be a blessing and help the region’s transitioning economies.

By charging a fee for water rather than bartering for water, Kyrgyzstan encourages efficiency from its downstream users.  The resources Kyrgyzstan receives in return for the water are produced at a cheaper cost than the price these resources are assigned in the barter exchanges.  Efficient water use would greatly benefit the region’s productivity, environment, stability, and overall health, as access to safer drinking water would probably increase.  Furthermore, by forcing payment from downstream users, Kyrgyzstan could bring Uzbekistan, the biggest player in the region, back to the multilateral bargaining table, which would aid the region in determining equitable allocations based upon international water principles.  Once an equitable agreement is reached, each nation would own a certain amount of the region’s water, and could then contract away surplus water for a price on a yearly basis.  However, until that time, Uzbekistan must negotiate with Kyrgyzstan and pay for its water.  Uzbekistan may soon realize it is far cheaper to reach equitable water allocations at the regional level and pay for only part of the water it receives rather than pay for all the water it receives.

This note will analyze the unique problems of water management in Central Asia in the wake of the Soviet collapse.  The primary focus is on the possible outcomes of recent politicking over payment for water in the region between upstream and downstream nations.  Part II will examine the causes of the current state of water affairs in Central Asia.  Part III will analyze international law and discuss whether water can be treated as an economic good.  Part IV will examine Kyrgyzstan’s new water law and its effect on regional discussions.  Part V will look at possible future outcomes as a result of pursuing water fees in Central Asia.

II. Causes of the Current State of Affairs in Central Asia

A. soviet policies still wreaking havoc today

The Central Asian nations are all ex-republics of the Soviet Union, and the policies of this former global superpower have shaped the issues the region faces today.[45]  In the 1920s and 1930s, the Soviets created five republics in Central Asia, substantially redrawing the region’s political boundaries.[46]  The creation of the new republics disrupted the region’s natural watershed by dividing the two major watercourses into upstream and downstream regions.[47]  The consequences of the division of the republics in this fashion were further exacerbated by two decisions.  First, the Soviets constructed massive water storage infrastructure in the upstream republics to provide control mechanisms for the region’s water.[48]  Second, the Soviets continued their Tsarist predecessors’ goal of transforming the arid downstream republics into money making agricultural societies[49] whose primary crops were water-intensive cotton and rice.[50]  The infrastructure implemented and the agriculture goal for the arid downstream regions forced the republics to be interdependent during the Soviet reign.

As far as managing the water by employing a total basin approach, the Soviets’ plan was the responsible and proper[51] method of approaching the issue.  However, the Soviet redrawing of political borders, the construction of water infrastructure, and Moscow’s fascination with irrigating as many hectares as possible haves led to today’s highly political water dispute.  When the Soviet Union disintegrated along the political boundaries it had created, it gave birth to a water conflict because Moscow was no longer the sovereign decisionmaker for the region.[52]  Today, instead of one nation implementing a single water policy for the region, five competing nations must negotiate for water use – the water towers of Kyrgyzstan and Tajikistan and the water dependent nations of Uzbekistan, Kazakhstan, and Turkmenistan.[53]

B. water anxiety grows: the competition between upstream and downstream nations

Because little, if any, surface water currently reaches the Aral Sea (a problem that can only be solved through the implementation of better, more efficient irrigation techniques), the riverine waters in Central Asia are fully allocated.[54]  Of the four largest rivers and tributaries in the region, each is shared by at least two nations.[55]  More than half of Uzbekistan’s water and ninety-eight percent of Turkmenistan’s water originates in another nation.[56]  Seventy-three percent of Aral Sea Basin water is allocated to the three downstream arid states of Kazakhstan, Turkmenistan, and Uzbekistan,[57] while the upstream nations of Kyrgyzstan and Tajikistan are only allocated 0.4% and 11% of the Basin’s water respectively, despite providing 80% of Central Asia’s available surface water.[58]  This water use scenario triggers a classic struggle between upstream and downstream riparians.

The high water use by downstream nations is not itself a problem.  However, when the waters are fully allocated and the upstream, water-controlling nations begin demanding higher allocations because the current scheme is inequitable, strife is sure to follow.  The surface water in Central Asia is of high economic significance.[59]  Ninety percent of the region’s crops are grown on irrigated land.[60] In Turkmenistan and Uzbekistan, cotton farming is the leading employer and income generator.[61]  Forty-four percent of Turkmenistan’s workforce is employed in the cotton industry and over seventy-five percent of Uzbekistan’s revenue is generated through cotton farming.[62]  In stark contrast, the upstream nations are not so agriculturally dependent that they require massive amounts of surface water for farming.  Instead, these nations depend on water for hydroelectric power.[63]  During the Soviet era, these nations did not have to deal with competing water use concerns; free water was provided to the downstream nations and free fossil fuels were provided for heat and electricity to the upstream nations.[64]  Because the nations of Central Asia are no longer part of the Soviet economic system, “the promotion of national economic interests and mutually incompatible demands for water” have complicated the politics in the region.[65]

C. major environmental concerns: drawing the world’s attention

The Aral Sea serves as a constant reminder to the region of the continuing stress placed on water resources there.  The disappearance of the Aral Sea is considered “one of the most serious environmental crises in the world.”[66]  As the sea recedes, massive amounts of salt and other minerals accumulate on the former sea bottom and mix with the remnants of toxic pesticides and herbicides.[67]  The salt, dust, minerals, and chemicals form a toxic brew that often gets caught up in windstorms and covers areas up to 500 kilometers away with the mixture.[68]  Not only does the sea bottom degrade the arable land surrounding the sea, it also causes severe respiratory problems for many people.[69] The overuse of the Basin’s surface water has also destroyed the Aral’s fishery, on which so many depended.[70]  As the surface waters flowing to the Aral reduced in size, the brackish sea became too salty and polluted for indigenous fish, effectively eliminating 60,000 jobs associated with the fishery.[71]  Fallout from the desiccation of the Aral Sea also extends to loss of biodiversity in the river deltas, climate change in the region surrounding the diminished sea, and pollution of groundwater – directly impacting the safety of drinking water in the region.[72] 

Compounding the overuse problem in the Aral Sea Basin is population growth.[73]  In Uzbekistan alone there are 400,000 new mouths to feed each year.[74] The Central Asian nations grew by 140% between 1959 and 1989 and are projected to increase by another third before 2020.[75]  The most phenomenal population increases are occurring in the Ferghana Valley,[76] possibly the most fertile region of Central Asia, whose borders are shared and disputed by three nations: Kyrgyzstan, Uzbekistan, and Tajikistan.  Furthermore, over half of the Basin’s population lives in the prime irrigated areas of the Ferghana Valley, Lower Zeravshan, and the Tashkent-Khujand Corridor,[77] demonstrating the connection between farming and intense competition for finite water resources.[78]

The environmental degradation in the Basin is so dynamic that it has drawn intense international interest to the region.[79]  Unfortunately, the international advisors are more concerned with solving the environmental problems by curtailing water use and saving the Aral, rather than taking into consideration the desires of the Basin nations.[80]  This international position has upset the Basin nations, who would rather fully allocate the water to aid their economies and deal with the environmental costs ex post facto rather than ex ante.[81]  Following the demise of the Soviet Union, the nations began meeting to allocate the waters of Central Asia and at the behest of the international community, much lip service was paid to the environmental problems the region faces.[82]  These meetings seemed to have solved the allocation issues by leaving intact the same water distribution levels as under Soviet rule,[83] while carving off a small portion for the Aral Sea. [84]  However, the distribution scheme was seriously flawed because the allocation levels are not equitable for the upstream states and because the downstream nations have little interest in helping the Aral Sea if it will hurt their economic interests in irrigated agriculture.[85]

D. upsetting the balance

Unfortunately, leaving the water allocation levels at pre-sovereignty levels is not an equitable solution for the region.  Today, the upstream states are responsible for infrastructure upkeep, but receive little benefit in return.[86]  Also, under the Soviet economic plan, the upstream republics were receiving fossil fuels for electricity and heat from downstream republics, in exchange for the upstream republics’ controlled release of water during the summer months.[87]  This was an even bargain because the upstream republics then had enough heat during the winter so that they did not need to rely on hydroelectric power and release water during the winter.  They could instead save the water and release it for the downstream users during the crucial summer growing season.  Furthermore, the massive economic gains made in growing cotton from the free upstream water did not benefit the individual republic in which it was grown, but instead went to the Kremlin’s coffers and was used for the good of the region, and nation, as a whole.[88] 

When the nations gained sovereignty, the natural resource allocation balance was upset.  In 1992, the Almaty Agreement set water allocation amounts at Soviet-era levels.[89]  This agreement amounted to an economic windfall for the downstream nations.[90]  The new downstream nations’ coffers were being filled with money made from cotton, and they no longer had to provide their fossil fuel resources for free.[91]

E. the regional structures in place

Most nations with trans-boundary water resources can see possible water disputes approaching years in advance.[92]  These nations then have the requisite foresight to negotiate over water allocation amounts and implement water basin management regimes before the resource becomes too overstressed.[93]  The Soviet Union implemented an inequitable regime to maximize arable land in its possession, believing Central Asia to be “a single agricultural region for economic purposes.”[94]  Following the collapse of the Soviet Union, the Central Asian nations “were forced to rapidly develop management strategies and assume responsibility”[95] and did not have the luxury of time. The nations began developing their own divergent views on appropriate water use.[96]  An inequitable scheme could no longer work because each nation was sovereign; instead, the region required a new and more cooperative allocation system.[97]

Following their independence, each nation claimed equitable shares to water resources in Central Asia.  On September 12, 1991, the nations jointly stated “that mutual water resources management would be on a basis for equity and joint benefits.”[98]  On the heels of this statement, the nations put together the Almaty Agreement[99] in February 1992.  Under this agreement, the nations acknowledged that “only [through] unification and joint coordination of action could the region’s water crisis be effectively managed”[100] and that the region’s waters were “common and integral.”[101]  The agreement retained the water allocations put in place by the previous Soviet regime; refrained from commencing projects and activities that would deviate from agreed water shares, including projects that would affect water quality; pledged the free exchange of water basin information; and agreed to carry out projects that would jointly address the desiccation of the Aral Sea.[102]

The Central Asian nations have formed various organizations to oversee the Aral Sea Basin, clearly indicating their desire to negotiate and best manage the region’s water.  These organizations include: the Interstate Commission for Water Coordination (ICWC); the Basin water-management authorities (BVOs)[103] – one for the Amu Darya and one for the Syr Darya; the Interstate Council on Problems of the Aral Sea Basin (ICAS); and the International Fund for the Aral Sea (IFAS).[104]

Over the last decade, the ICWC became part of the ICAS, which was then swallowed by a redesigned IFAS in 1997.[105]  The goal of combining these organizations was “to reduce duplication of effort, simplify the administrative structure, overcome bureaucratic inertia and revitalize improvement efforts in the Aral Sea Basin.”[106]  The new IFAS is led by the head of state of one of the Central Asian nations and rotates every two years.[107]  It is composed of the Deputy Prime Ministers of the Central Asian nations that oversee agriculture, water, and the environment.[108]  IFAS’s  annual contributions now stand at 0.3% of GNP from Uzbekistan, Kazakhstan, and Turkmenistan, and 0.1% from Kyrgyzstan and Tajikistan.[109]  The integration of these organizations and the continual agreements that these structures churn out – the nations signed as many as three hundred agreements on the Basin between 1991 and 1994[110] – indicate that the countries are well aware of the gravity of the situation.

The organizations in place collectively decide water allocation amounts among the nations, oversee the regulation of surface waters in the Basin, and act as a sounding board for future projects on the watercourses.[111]  Most notably, the IFAS provides a forum for continuous dialogue among the nations to settle disputes.[112]  It would seem that IFAS is the critical structure for dealing with water disputes in the region and for overseeing the Aral Sea Basin; however, in practice, the organization is weak, with little actual political commitment and minimal financial and legal backing.[113]

F. major international efforts and pressure

Since the collapse of the Soviet Union, international non-governmental organizations and donors have led the charge in promoting peaceful solutions for the management of Aral Sea Basin waters.[114]  International pressure to avoid a water conflict in the region is largely responsible for the quick agreement on water allocation reached in 1992.  The 1992 pact, which was based on inequitable Soviet-era water allocations, probably avoided a stalemate and has aided the nations transition to sovereign powers.  However, by endorsing and giving precedent to the Soviet allocation amounts, the region and the international community have aided the downstream nations in securing water for inefficient irrigation practices.

The World Bank (the Bank) has been the most active player in Central Asia since 1992.  The Bank created the Aral Sea Basin Program (ASBP), a project that was scheduled to run for fifteen to twenty years and cost U.S. $250 million.[115]  The ASBP has three primary goals: “(1) the rehabilitation and development of the Aral Sea disaster zone; (2) strategic planning and comprehensive management of the water resources of the Amu Darya and Syr Darya; (3) building institutions for planning and implementing the above programs.”[116]  The Bank encouraged the formation of the ICAS and IFAS and through these organizations has sought fulfillment of the ASBP’s agenda.[117]  The preparatory phase of the program ended in mid-1997, and since then the program has been focused on improving management of the water resources.  Specifically, it seeks to determine ways to deal with water quality concerns by developing low cost conservation measures at the local, farm-specific level.[118]  Other aspects of the program involve strengthening water-sharing among the nations, educating the public to effect a behavioral change in the way Central Asian nations use water, improving dam and reservoir management, and, most importantly, monitoring water quality and quantity exchanged between the nations’ watercourses.[119]  Without accurate numbers on water quality and quantity, it is impossible to reach an equitable solution.[120]  Monitoring is the “precondition of more effective and accepted interstate water management/sharing agreements.”[121]

Another key program in the region is the United States Agency for International Development (USAID).  This program focuses on the Syr Darya Basin, specifically the Toktogul dam and reservoir.  This storage facility, built by the Soviets and currently owned by Kyrgyzstan, controls downstream water release for Uzbekistan and Kazakhstan.[122]  The primary disagreement over the dam involves the competing water uses of irrigation and hydropower and trying to reach an equitable agreement to avoid a conflict.[123]  In 1998, the Syr Darya Basin countries signed a framework agreement to aid the nations in settling future disputes.[124]  USAID then formed a small follow-up project to help implement the agreement reached, but this has met with much stronger resistance, due primarily to Uzbekistan’s desire to solve water issues with more direct bilateral agreements rather than through multilateral roundtables.[125]

G. the rise of the bilateral agreement and weakness of international accords: kyrgyzstan forces the issue

The regional allocation agreements and frameworks implemented during the last decade are very helpful in assessing the state of affairs on the water issue throughout the region, but have had very little actual effect when water resources have become stressed or when water is used as a pawn in much broader economic negotiations among nations.  When dialogue at the roundtable fails, bilateral swap or barter agreements[126] have picked up the slack and steered the region through crisis on an increasing basis.[127]  Over the last decade, the bilateral agreements have primarily involved only upstream Kyrgyzstan and its downstream neighbors on the Syr Darya, because the Syr Darya contains less water than the Amu Darya.[128]  The scarcer the resource, the faster nations must allocate it properly or suffer.  Furthermore, the other upstream nation, Tajikistan, was involved in a civil war, which dramatically hindered its ability to negotiate with downstream nations over water allocation.[129]

As far back as 1994, upstream Kyrgyzstan and downstream Uzbekistan made an informal barter agreement, “under which Uzbekistan agreed to provide Kyrgyzstan with winter heat and electricity in exchange for water during the growing season.”[130]  This informal arrangement was secured just two years after the Almaty agreement allegedly set the water allocation amounts in the region at Soviet-era levels.  However, following independence, two key aspects of the Soviet-era allocations changed: (1) Uzbekistan was now gaining all of the proceeds from their cotton[131] plantations, not the Kremlin; and (2) Kyrgyzstan was no longer receiving subsidies of fuel and electricity to keep the nation operational during the cold winter months.[132]  It was not until these two issues became apparent that downstream Uzbekistan backed off its right to water free of charge – Uzbekistan simply could not justify the exorbitant amount of water it used without paying for infrastructure upkeep in some fashion.[133]  The argument can therefore be made that water in the region has never been free, save for a short period just following the nations’ independence from the Soviet Union.[134]

The notion that water in the region is not free is the key to understanding the issues facing Central Asia and water allocation.  If the issue was that Kyrgyzstan was trying to charge Uzbekistan money for potable drinking water, the equities[135] would be much different and the notion of charging money for water would then be unpalatable.  Instead, it seems there is more than enough water in the Central Asian nations to support their populations and economies.[136]  However, there is not enough water to satisfy all the uses and plans that these nations’ governments have.[137]  The primary explanation for the lack of water for all these uses is inefficient distribution and use stemming from the nations’ water-intensive irrigation techniques.[138]  It has been estimated that “[c]rops in Central Asia may receive between four and six times the amount of water they require.”[139]  By forcing the downstream nations to value the water and invest in better delivery systems, the entire region would benefit.

III. International Law and Water as an Economic Good

A. a right to water?

The leaders of downstream Uzbekistan, Kazakhstan, and Turkmenistan[140] have stated their opposition to Kyrgyzstan’s desire to charge cash for water they receive.[141]  This issue will take on extraordinary importance if, as is likely, Tajikistan follows suit and also decides to charge cash for water.[142]  The opposing nations’ leaders only argument against the proposal is that it contradicts “international norms and rules,”[143] an inaccurate statement.  The “international norms” on which these downstream nations are basing their opposition have largely been set by the influential writings of Stephen McCaffrey and Peter Gleick, who contend that there may be a right to water for vital human needs.[144]  These writers have articulately and passionately argued that international law suggests that water must be made available to those who need it for drinking and sanitation purposes.[145]  The writers note that little attention in international law has been given to whether there is a right to water[146] and that water rights have been mentioned explicitly only once, in the Convention of the Rights of the Child.[147]  However, they contend that a right so important as access to safe drinking water can be inferred from existing covenants and declarations on human rights agreed to by members of the United Nations.[148]

But by basing the counterargument of the downstream nations on this notion of a possible general human right to water, the leaders are conflating two issues.  The “international norms” of which they speak would only apply to situations where there is not enough water to provide potable drinking water.  This is not the problem in Central Asia.  In Central Asia there is plenty of water available to drink and for sanitation purposes, but the way in which the downstream governments use that water is creating the water crisis.  By charging a fee for water, Kyrgyzstan would be aiding these nations in maintaining their future water supply, and forcing them to re-evaluate the wasteful way in which they use water.[149]

The downstream nations have a good argument for establishing a right under McCaffrey’s and Gleick’s scholarly analyses to receive enough water, free of charge, from upstream watercourse nations for the basic human needs of its population.[150] However, under this theory, the downstream nations are not necessarily entitled to all the water they have historically received without a fee because a large percentage of the water they have historically received is in excess of what these nations’ populations require for basic human needs. Therefore, even if there is a right to water for basic human needs, the downstream nations must still compensate the upstream nations for infrastructure upkeep for the water received in excess of basic human needs.

Upstream Kyrgyzstan and Tajikistan, as well as international parties, have sought multilateral negotiations on equitable water management in the Basin, but these attempts have largely failed because of boycotts by the downstream nations.[151]  Any Basin-wide agreement would require downstream nations to contribute funds to maintain infrastructure that largely benefits downstream interests.  By boycotting regional negotiations on Basin water management, the downstream nations are forcing Kyrgyzstan and Tajikistan to threaten cut-offs unless they are paid.  Therefore, the move by Kyrgyzstan (with Tajikistan likely to follow suit) to charge a fee for water is a product of downstream nations’ own intractableness.  While the downstream nations do have strong equitable interests in Basin water allocations negotiated at the multilateral level, they are effectively ceding that right by refusing to negotiate on a regional basis.

The downstream nations’ position is further weakened when looking at their rhetoric.  These nations continually reiterate that they will not pay for water.[152] However, these nations would not be paying for water; they would be paying for infrastructure upkeep and compensating Kyrgyzstan and Tajikistan for lost hydropower use.  By phrasing their opposition based upon “international norms,” the downstream nations are muddying the waters and confusing issues to put political pressure on the upstream nations.  This tactic seems to have had some effect, as the newspaper headlines coming from the region are alarmist in nature and always refer to the destabilizing effect of water on the region.[153]

B. international law and free water

Modern international law suggests that water, unlike fossil fuels, is a “free” resource and should be given openly in equitable amounts to downstream users.  The preeminent framework for analyzing watercourse disputes, the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, was developed in 1997.[154]  It has yet to be ratified, but arguably represents the current consensus among the world’s nations on international water law.    The Convention does not explicitly state that water should not be sold to downstream users, but does make provisions for a balancing of equitable uses with “vital human needs.”[155]  By declaring that “vital human needs” play a role in determining allocation amounts between nations, it suggests that water is a resource that must in some circumstances be permitted to pass through free of any constraints – including payment.  Analyzing the Convention more broadly, it seems that water must be allocated in “equitable and reasonable” terms as discussed in Article 5, while taking into consideration that every nation along a watercourse has a stake in the water:  “[E]every watercourse State is entitled to participate in the negotiation of and to become a party to a watercourse agreement that applies to the entire international watercourse . . . .….”[156]  Taking Article 4 of the Convention, “Parties to water course agreement,” and Article 6, “Factors relevant to equitable and reasonable utilization” together, it can be surmised that the intended purpose of the Convention would be to determine water entitlements for each nation along a watercourse.  The word “entitlement” means that each watercourse nation would be allocated a certain amount of water based upon the Article 6 factors.[157]  If the watercourse nations are entitled to a certain amount of water based upon equitable and reasonable factors, then an upstream nation could not charge downstream nations for water that exceeds the upstream nation’s quota.  Stated more succinctly, to charge another nation for water, the upstream nation would have to give up some portion of its entitlement for a fee.

While the water itself is considered free, the Convention does acknowledge that all users should pay for aiding infrastructure upkeep, albeit infrastructure in one’s own territory.[158]  Article 26, Section 1 of the Convention says, “[w]atercourse states shall, within their respective territories, employ their best efforts to maintain and protect installations, facilities and other works related to an international watercourse.”[159]  This statement seems to suggest that nations are responsible for upkeep of infrastructure within their territory.  However, the Convention assumes that each nation has its own infrastructure to maintain.  While the downstream nations do have their own water infrastructure, this infrastructure is for agriculture – a domestic purpose.  The infrastructure for which that Kyrgyzstan and Tajikistan seek help with is for downstream international purposes.  Furthermore, since independence, the upstream nations have been receiving bartered payment for storing water, curbing water use, and maintaining water infrastructure.  For the above reasons, it seems that Article 26 of the Convention has little application in the Basin.

IV. Kyrgyzstan’s New Law and Its Effect on Regional Discussions

A. kyrgyzstan’s new law and the dublin statement

On June 29, 2001 Kyrgyzstan’s parliament published a law on “the inter-governmental use of water resources, dams and other water-related installations.”[160]  President Askar Akayev signed the law into effect on July 23, 2001.[161]  This law is modeled on the 1992 Dublin Statement on Water and Sustainable Development[162] and states that “water has an economic value in all its competing uses and should be recognized as an economic good.”[163]  These words are exactly the same as those used in Principle Number 4 of the Dublin Statement.[164]

The media and international response to this new law has been shrill.[165]  Most articles postulate that if members of the region adhere to the agreement, then Kyrgyzstan, and Tajikistan, if it follows Kyrgyzstan’s lead, will force payments from their downstream neighbors for water.[166]   This is in contrast to previous arrangements where Kyrgyzstan and Tajikistan only received barter payments for maintenance of the water infrastructure, curbing release of water during the non-growing season, and storing water.[167]  However, these articles have failed to analyze the accompanying language of Principle Number 4 and the statements of Kyrgyzstan’s Prime Minister.

The accompanying language of Principle Number 4 in the Dublin Statement recognizes “the basic right of all human beings to have access to clean water . . . …at an affordable price . . . . .…Managing water as an economic good is an important way of achieving efficient and equitable use, and of encouraging conservation and protection of water resources.”[168]  Inherent in these words is the notion that Kyrgyzstan could never charge the full value of water because that would prevent all human beings from having access to that water.  Rather, Kyrgyzstan is attempting to change the form of payment for its water storage, infrastructure upkeep, and loss of hydropower generation during the winter months from the barter arrangements already in place to a fee structure.

The statements of Kyrgyz Prime Minister Bakiev also support the notion that the new Kyrgyz water law is intended only to force cash payment for installation maintenance, water storage, and the loss of hydropower generation during the winter months.  Prime Minister Bakiev has intimated that the recently passed legislation was put in effect because Kyrgyzstan uses less than twenty-five percent of the water in Kyrgyz reservoirs and “our neighbors don’t pay anything for the water they get. We’re paying for it.”[169]  The Prime Minister’s statements suggest that the impetus for the law was that his nation feels “short-changed” by the bilateral barter agreements.[170]  The hope is that the new water law will more equitably compensate Kyrgyzstan for the control services it provides to its downstream neighbors.

B. kyrgyzstan’s new law and implications for the contested 1992 almaty agreement

The new law approved by the Kyrgyzstan’s parliament and signed by President Akayev caps years of discussion on how to treat Kyrgyzstan’s water and, more importantly, suggests a new official stance by Kyrgyzstan that the Almaty Agreement has no force.[171]  The 1992 Almaty Agreement, which codified Soviet-era water allocations for the five fledgling nations, has frustrated international water negotiations in the region for years.[172]  Language in that treaty defined water resources in the region as “common and integral,” thereby frustrating attempts to make water into an international commodity.[173]  Over the last decade, despite entering into barter agreements for water storing, Uzbekistan has tried to rely on the language from this accord in all subsequent negotiations, claiming that all signatories of the agreement must abide by it.[174]  However, the Kyrgyz Parliament, led by Mr. Tudarkun Usubaliev, a revered politician and leader of the republic from 1961-1985, has debated the validity of the agreement from the start.[175]  Usubaliev and his fellow detractors have claimed that the “agreement was never ratified by Parliament, and that [the] agreement violates the terms in Kyrgyzstan’s own Law on Water,” and that the Minister of Water Economy who signed the agreement had no authority to do so.[176]  By signing a law that transforms water into a commodity that can be sold at the international level, the legislature and executive branches of Kyrgyzstan are agreeing that the 1992 Almaty Agreement has no force.  While the Almaty Agreement has had no actual force for years, it has been the basis for Uzbekistan’s and Turkmenistan’s boycotts of recent multilateral negotiations.  If Kyrgyzstan can force a change in the type of payment it receives from its downstream neighbors, these nations may rethink their boycott of multilateral negotiations and return to the bargaining table to more equitably allocate the Basin’s water according to the upstream nations’ desires.

C. kyrgyzstan’s new law clarifies aspects of the 1998 syr darya framework agreement

The 1998 Framework Agreement[177] among the governments of Kazakhstan, Uzbekistan, and Kyrgyzstan[178] is a framework agreement that is the closest the region has come to achieving a more equitable multilateral accord since the inequitable Basin-wide 1992 Almaty Agreement.  The 1998 Framework Agreement acknowledges the competing-use issues between upstream and downstream nations, noting that any curbing of water release by an upstream nation for downstream concerns should be met with equivalent “compensations for energy losses.”[179]  Infrastructure upkeep costs, also known as operation and maintenance costs, are to be paid for by the nation that owns the facilities.[180]  The agreement also codifies past bilateral barter agreements, explicitly stating that the purpose of Kazakhstan’s or Uzbekistan’s payment by coal, gas, electricity, fuel oil, or labor and services is for water storage by Kyrgyzstan.[181]  Implicit in the notion of Kyrgyzstan being paid for storing water is the idea that the water stored, though on Kyrgyzstan’s land, is not owned by Kyrgyzstan.  This suggests that Kyrgyzstan, Uzbekistan, and Kazakhstan have agreed in principle that each nation is entitled to an equitable share of water.  In an accompanying agreement, the nations outlined what these equitable shares were.[182]  However, the shares outlined have not been adhered to in the years following the agreement, largely because of drought and failure of the downstream nations to adequately compensate Kyrgyzstan for water storage and lost hydroelectricity production during the winter months.[183]

The 1998 Framework Agreement, therefore, explicitly provides that downstream nations must compensate Kyrgyzstan for two things: (1) water storage – curbing of non-growing season water release; and (2) potential energy supplies lost because of  water storing.[184]  The agreement explicitly states that operation and maintenance costs must be paid for by the nation that owns the infrastructure.[185]  However, if this is true, what determines the cost of water storage?  The cost of water storage must necessarily be the operation and maintenance of infrastructure if compensation for energy not generated is treated as a separate source of compensation, which is how the Framework Agreement treats it.  Thus, Kyrgyzstan’s new water law builds on aspects of the 1998 Framework Agreement by attempting to flesh out what Kyrgyzstan should be compensated for.

D. kyrgyzstan’s equity argument

Since 1997, Kyrgyzstan has begun to vocalize its desire to treat water as “any other valuable commodity – something that can be bought and sold, for a real market price.”[186]  The equity argument in favor of selling water as a commodity is surprisingly strong.  The Director of Kyrgyzstan’s Institute of Hydroenergy has noted that “of the 50,000 million cubic meters of water that Kyrgyzstan’s lakes and reservoirs collect each year, only 12,000 million cubic meters remain in the country.”[187]  While Uzbekistan irrigates 1.6 million hectares of fields each summer, Kyrgyzstan is limited by the water it releases to Uzbekistan to only 0.5 million irrigated hectares.[188]  Furthermore, because of Uzbekistan’s high water use, water that could have been held back for hydropower generation during the cold winter months was already released during the summer, thus limiting Kyrgyzstan’s autumn and winter hydropower generation .[189]  This practice of being unable to generate electricity during the hard winter months is very costly as Kyrgyzstan is then forced to import electricity from Uzbekistan.  Even more surprising is that “Uzbekistan makes no contribution to [Kyrgyzstan’s] upkeep of dams and mountain weather stations which monitor water levels.”[190]  It therefore seems logical that to untangle this mess and to achieve maximum efficiency in poverty-stricken nations, a price should be placed on every resource.  Bartering may solve disputes today, but for true economic freedom and best use of the resources involved, cash payment is the only way to move forward.

V. Solving Central Asia’s Water Stalemate

Since the nascent days of independence, Kyrgyzstan has pressed its downstream neighbors for payment on water provided from its reservoirs so that it could maintain its crumbling water infrastructure, which is vital to downstream interests.  Following Kyrgyzstan’s lead, Tajikistan has also recently become involved in downstream barter agreements to aid it in infrastructure upkeep.[191]  Since 1994, Uzbekistan has provided natural gas, coal, and cotton to Kyrgyzstan and Tajikistan to compensate the nations for money spent on infrastructure upkeep, water storage, and the curbing of water release during the non-growing season.[192]  Recently, Kazakhstan has provided coal and power engineering equipment to aid Kyrgyzstan in maintaining its infrastructure.[193]  However, the value of these resources is often far less than the cost of upkeep of infrastructure and usually is just enough to keep the upstream nations warm and operational during the winter.[194]  This inequity chafes the upstream nations.

The current bilateral barter agreements are seriously flawed in other respects as well.  The barter agreements allow upstream nations to hold any downstream nation hostage on a political whim.  In the past, Uzbekistan, downstream from Kyrgyzstan, but upstream from other Basin nations, has cut off Kazakhstan’s water for non-payment of debt.[195]  Kazakhstan retaliated by halting international telephone calls routed through Kazakhstan to and from Uzbekistan, forcing callers to use a far more expensive network.[196]  In another example, Kyrgyzstan has frozen the release of Kazakhstan’s water until the debt Kyrgyzstan owed Kazakhstan was relieved.[197]  Uzbekistan has interrupted natural gas deliveries to Kyrgyzstan on numerous occasions as a pre-emptive strike,[198] and Kyrgyzstan has threatened to sell water to China if Uzbekistan does not pay for its water use.[199]  Troops have been massed on borders in the region in response to water politics,[200] and there have even been extortion disputes at the local level, with one farmer refusing to release his upstream water until the downstream farmer ceded to some sort of demand.[201]  Furthermore, all of these disagreements tend to occur just before or during the growing season, seriously hampering the cultivation of lucrative crops and resulting in massive agricultural losses.[202]

The upstream nations have become very frustrated with bilateral barter agreements, with Kyrgyzstan being the most vocal on the subject and Tajikistan following suit.[203]  Since 1997 there has been talk of charging cash for the water provided to downstream users, and in 2001 Kyrgyzstan officially started moving towards this end with the signing of the new water law.[204]  The Kyrgyz pParliament approved the law that defines water as a commodity and, one month later, Kyrgyzstan announced that it was preparing a method of charging downstream users for water.[205]  Kazakhstan and Uzbekistan have both spoken out against the new law saying that it “contradicts the international norms.”[206]

However, the goal of this movement is not to create a market for water and charge the full price for water, but to get compensation for infrastructure upkeep, water storage, and loss of hydropower generation during the winter months.[207]  The payment that Kyrgyzstan and Tajikistan desire can more accurately be described as a fee to maintain the upstream nations’ future ability to provide water for their downstream neighbors.  Furthermore, Kazakhstan’s and Uzbekistan’s rhetoric on the subject is puzzling considering that they have already been involved in barter deals to provide the same ends.

Kyrgyzstan’s water fee plan, which will also probably be implemented by Tajikistan, is not new to the region and should be supported by the international community until the downstream nations return to the multilateral bargaining table.  The 1998 USAID-led agreement on the Syr Darya Basin states that developing a pricing mechanism based on a single tariff is a primary future goal of the region.[208]  If Kyrgyzstan and Tajikistan are able to secure fee payment from the downstream nations rather than the current barter agreements, it will force the downstream nations to quantify the cost of water they are receiving.  The logical outgrowth of the new payment to the upstream nations would be for the downstream countries to place the new fee burden on their water users, forcing them to become more efficient with water and to institute water metering at the local level.

A. reinstitute the local fee: when fees were eliminated, irrigation became wasteful

The Soviets did a great disservice to Central Asia when they rejected traditional irrigation practices that had been used for centuries and replaced those practices with more modern centralized approaches that led to extreme waste and inefficiency.[209]

1. The Efficient Traditional Method of Irrigation with Strong Local Oversight

If traditional forms of irrigated agriculture were still practiced in Central Asia, the surface waters of the region would not be so depleted. “The traditional system of irrigated agriculture in the Aral Sea Basin was essentially preserved until the mid-1920s.”[210]  The traditional irrigation method “had been developed over thousands of years and had survived through wars, social collapse, natural catastrophes and the Tsarist conquest of the region.”[211] Individual farmers and their extended families oversaw nearly all of the irrigated land locally.[212]  These micro-managed farms were generally no bigger than two or three hectares and the fields that comprised each farm were heavily regulated and had permanent walls lined with trees breaking up the land into plots approximately 0.5 hectares in area.[213]  Animal waste was the primary fertilizer, which emphasizes that those who lived there were accustomed to using all resources to their maximum efficiency.[214]

The traditionally irrigated farms were a sustainable method of agriculture in the region.  The small size of the fields allowed the farmers to prevent unequal distribution of water and run-off.[215]  The trees lining the borders of each plot served as a fuel source during the winter, prevented waterlogging, and lowered wind speeds to prevent erosion and evaporation from the soil.[216]  Despite having poor delivery canals, which is where most of the inefficiencies were concentrated, water was on the whole used very efficiently with the traditional irrigation method.[217]

The traditional administrative regime for water disbursement that was in place when Soviet authorities assumed control of water distribution in Central Asia fostered strong oversight to maintain efficient use of water.[218]  Those who used water for irrigation were not only taxed to maintain the canals and water distribution system, but were expected to help build and maintain the local systems themselves.[219]  Farmers had “obligatory annual work to clean canals of sediments, repair dams and other facilities and deal with any other maintenance or construction issues that needed attention.”[220]  Furthermore, “Islamic law saw water as social property,” and farmers were encouraged to cooperate locally in maintaining their irrigation systems.[221]  The arid environment also contributed to the general mindset in the region that water should be used carefully.  The traditional method of irrigation was sustainable, and while what has replaced it is not.

2. The Inefficient Soviet Style Irrigation Method and the Wastefulness of Free Water

The Soviets could have used the best aspects of the traditional irrigation techniques and introduced more modern Western technologies to improve the efficiency of the small farms in Central Asia.  Instead, the Soviets viewed the traditional irrigation method as “primitive, backward and inefficient, as well as exploitative and oppressive of the peasantry.”[222]  The Soviets instituted state control of irrigation and agriculture,[223] thus eliminating the fees on the actual farmers.[224]  They increased the plot size of farms, and sought to get as many acres irrigated as possible.[225]  But with the increase in plot sizes and inattention to efficient distribution techniques, the Soviets ended up using all of the water available in the region and wasting most of it.[226]  The Amu Darya and Syr Darya water supplies “were approaching exhaustion,”[227] fields were waterlogged and salinized, and yield was declining.[228]  Even worse, the new administrative methods “killed off the art of irrigation learnt over centuries.  When water [was] provided it [was] done so only in huge quantities that harm[ed] both vegetation and people.”[229]  By removing ownership of the farmland from local families and making these farmers and peasants employees of the state, apathy towards farming led to irresponsibility that has become “rooted in people’s attitudes for decades.”[230]

3. The Importance of the Fee

The modernization of Central Asia’s agricultural techniques is not the sole reason for the current water strife in the region.  More accurately, the issue is one of inefficiency and waste that has accompanied the modernization.  By removing land ownership and subsidizing water projects, the Soviets removed the type of local monitoring necessary to prevent land from becoming damaged and water from being wasted.  Without the individual farmers being constantly conscious of water use, because of fees associated with its misuse, waste at the local level became rampant.  Furthermore, even with the demise of the Soviet Union this waste has yet to be alleviated because water use continues to be subsidized[231] in the agrarian societies of Uzbekistan and Turkmenistan, two nations that used more than seventy-two percent of Aral Sea Basin water in 1995.[232]

One of the best methods for efficiently allocating a scarce resource is through price.[233]  By charging an amount of money for water that does not force a farm into bankruptcy or even significantly hurt the farm’s bottom line, the Central Asian nations can encourage efficiency in irrigation practices. Kazakhstan and Kyrgyzstan have experimented with irrigation fees over the last several years.[234]  The water fees collected in these nations have not been enough to cover infrastructure upkeep costs.[235]  However, detractors who point to this “failure” of water fees are missing the point.  The long-term goal of water pricing may ultimately be to cover the cost of operation and maintenance or even future water projects, but in the short- to mid-term the goal is to use water more efficiently so that there is more available for all competing uses.  If Kyrgyzstan is successful in charging downstream nations for water, it is very likely that fees will be passed on to the local level for water use.  If the local farmers need to limit their water use to cut down on the fees assessed, then irrigation practices will be influenced.  The primary obstacle to imposing a local fee on farmers is a water metering system.[236]  Currently, water usage tends to be “calculated by multiplying the area of each crop by the water usage norm for each crop raised (i.e., what should be used, not what is used) and summing the results.”[237]  The inefficiencies of such a practice suggest that there is little actual monitoring at the local level.  Instituting metering at the local level should be at the forefront of any international effort for water conservation in Central Asia because this is the most direct method of improving water use efficiency.  Only when a farmer can be shown the amount of water used with accurate data, in comparison with other more efficient and productive farms, will irrigation abuses wane.[238]

VI. Conclusion

The Aral Sea Basin is flush with water.  However, the amount of water available from year to year fluctuates substantially due to drought cycles.[239]  During these droughts the Basin nations feel the strain on their agriculturally dependent economic systems, and during years of plenty the water cannot be properly stored to prepare for these droughts because of a crumbling water infrastructure.  A multilateral agreement that equitably allocates surface water is needed in the Central Asian region because it is just the first step in addressing the water management issues this region faces.  Only after allocation levels are set can these nations proceed to address other issues like joint infrastructure upkeep, creating a regional authority with control over water distribution, and better monitoring and fee implementation at the local level.  Currently, Uzbekistan and Turkmenistan are boycotting multilateral discussions on allocating the Basin’s water and are keeping this process from moving forward.  Kyrgyzstan’s move towards requiring cash payments for water, rather than continuing with inefficient barter exchanges, may force these nations back to the multilateral bargaining table, especially if Tajikistan follows Kyrgyzstan’s lead.  In a region struggling for stability, this may be the best avenue toward equitable allocation of water resources.

VII. Appendix A: Map of Central Asia

VIII. Appendix B: Timeline of Important Agreements and Events in Central Asia Since the Fracturing of the Soviet Union