Ashraf Ghani’s ambitions to divert the Helmand River now serve his enemy, the Taliban: an International Law perspective

One tragedy follows another in Afghanistan. Occurring amid many other dramatic events, the diversion of the Helmand (Hirmand) River, which flows through Afghanistan and Iran, by the Taliban in January 2022 was almost lost in the news. This deliberate act can cause huge economic losses, degrade entire ecosystems, and threaten the lives of those dependent upon its waters. The question is whether or not Afghanistan is legally permitted to call upon its sovereign right to divert the natural course of the Helmand River to the detriment of the livelihoods of people in downstream areas of the river in Iran and in Afghanistan and to the detriment of the ecosystem.

In March 2021, at the opening of the Kamal Khan Dam on the Helmand River near the Iranian border, Ashraf Ghani, the (former) president of Afghanistan, said that “from today, the control of water in the province is now in the hands of Afghans”, and stressed that from now on, Afghanistan “would no longer give free water to anyone”, while “Iran can get extra water if it gives oil in return”. Soon afterward he left the country, and the dam came under the control of the Taliban, who had just seized power following the signing of a “Peace Deal” with the U.S. Afghanistan’s wishes to fully control its water for leverage swiftly seemed to become a reality, only one year after the dam’s opening, though under the control of its new rulers, the Taliban. With an ambition to overcome various infrastructural and agricultural challenges, the dam was intended to block the river flow downstream and store water, but these were not the only goals. Following a plan predetermined by the former regime, when the dam reached its full capacity in January 2022, the extra water arriving by way of natural floods was diverted to the south – the uninhabitable Goad-e-Zereh depression – and Afghanistan blocked the natural river course, thereby depriving downstream regions, i.e. Iran and the Hamoun wetlands, of the water flow. Even the opening of one of the dam’s gates by the Taliban prompted severe criticism from former authorities, and very soon after, the Taliban rejected allegations that the gates were being opened for the benefit of Iran. Ultimately, no water reached Iran.

The water diversion and degradation of the environment during the current dry season has not only seriously intensified the negative effects of ongoing droughts, but also threatens catastrophic harm to the livelihoods of people and the ecosystem. History seems to be repeating itself, as this situation recalls the tensions in 2001–2002 over the closure of the gates by Afghanistan at another upstream dam on the Helmand River, the Kajaki Dam, which led Iran to register two official complaints with the United Nations Security Council (UNSC). This time, however, Iran has not yet responded to Afghanistan’s actions at so high a political level, perhaps because of other security concerns in the region. Politically speaking, the main reason for Afghanistan’s deliberate water diversion is seemingly to gain as much leverage as possible. However, while the whole region is vulnerable to water scarcity, this act of water diversion can hurt the people of Afghanistan in downstream areas even more than it hurts Iran, due to lack of infrastructure and basic public services. Legally speaking, however, Afghanistan (that is, the Taliban)’s decision to deliberately deprive millions of Iranian and Afghan citizens of their water rights in downstream areas and in the Hamoun wetlands is evidently unlawful. Against this background, I intend to highlight some notable implications of Afghanistan’s diversion of water flow in relation to international law.

The Helmand River: the vital lifeblood of its delta’s communities

The Helmand River is an endorheic river that rises in Afghanistan and flows south-west, where after about 1,000 km it reaches Iran and the Hamoun Wetlands. The Helmand River is the lifeblood of the population in the river delta on both sides of the border, which is one of the poorest regions of these countries. The livelihood of people living around the Hamoun wetlands is highly dependent on the water resources of the Helmand River, which support activities such as fishing, reed harvesting, and bird-hunting. The Hamoun wetlands have already experienced significant depletion, seriously threatening the ecosystem and livelihoods of local communities on both sides of the border. The Iranian side of the wetlands is listed as a Ramsar site in the Ramsar Convention on Wetlands of International Importance (1971) and was recognised as a UNESCO Biosphere Reserve in 2016. The region surrounding the Hamoun Wetlands in both countries has already been suffering a serious deterioration of water and ecosystem services, which has had significant repercussions for the agricultural and economic development of the region, and more immediately has intensified the public health risk created by dust storms.

The two countries signed the Helmand River Water Treaty in 1973, and Afghanistan agreed to supply Iran with an average of 26 cubic meters of water per second in a normal (or above normal) water year, specifically for agricultural purposes. This is about 820 million cubic meters (MCM) of water per year solely for irrigation, which is less than 14 percent of the overall water demand and requirement of the Iranian side. In accordance with the first protocol of the treaty, Iranian and Afghan representatives held their 25th Joint Committee of Commissioners in June 2022. However, although many details have not been provided to the public, it seems that, once again, there was an outcome typical of the last 18 years of negotiations. Afghanistan (the Taliban) said both sides agreed to implement the treaty and Afghanistan would fulfill Iran’s water rights, while Iran accused Afghanistan of not being committed to the treaty. Iran asserts that they have received only 4 MCM of water from their expected 820 MCM so far this year, while the Hamoun wetlands’ water demand has not been met by Afghanistan. Iran also made a bitter complaint to Afghanistan about the diversion of 950 MCM of water flow from the natural course of the river and the depriving of downstream households and the Hamoun wetlands of their water rights.

The question is whether or not Afghanistan is legally permitted to call upon its sovereign right to divert the natural course of the Helmand River to the detriment of the livelihoods of downstream people and the ecosystem.

The Taliban’s violation of the 1973 Treaty

The 1973 Helmand Water Treaty was agreed upon between Iran and Afghanistan with the aim of guaranteeing Iran’s water right from the Helmand River. However, the 1973 treaty also preserves Afghanistan’s right to unilateral water development. A key question is whether the way in which Afghanistan exercises its rights can be considered compliant with its obligations under the 1973 treaty. Among other Articles concerning principally the terms of the water distribution, Article V of the treaty is important and quite controversial. The first paragraph of Article V states that Afghanistan agrees not to deprive Iran partly or wholly of its water right as defined in the preceding three Articles. But the second paragraph of Article V gives Afghanistan the right to utilise the balance of the Helmand water (in other words, all water other than Iran’s allocation) as it pleases. Pursuant to that right, paragraph three states that Iran is entitled to no more water than is described in the treaty, even if extra water is available that might be put to good use in Iran.

Since the core of the treaty is agreeing on Iran’s water allocation (for agriculture), Article V gives priority to meeting Iran’s water rights based on Articles II, III, and IV of the treaty; then, Afghanistan retains all rights to utilise the water remaining after Iran gets its allocation. As is clear from Afghan media and the interview with Taliban officials following the last joint meeting, Afghanistan has not yet committed to the first paragraph of Article V. This means that Afghanistan has begun to store water and divert the natural river course rather than fulfilling its obligation to meet Iran’s water right. Afghanistan has accordingly failed to comply with the 1973 treaty, and has contravened the first paragraph of Article V, which has precedence over the second paragraph’s declaration to grant Afghanistan the freedom to use the remaining water as it wishes.

The Taliban’s violation of the customary principles of International Water Law       

Another important question arises: does Afghanistan have an absolute right to utilise water “as it chooses” (Article V, para. 2) without taking care of “vital human needs” and the ecosystem of the international watercourse? This question should be placed in the context of international water law. The Helmand River is defined as an international or transboundary watercourse. Afghanistan and Iran are therefore obliged to share the river’s waters under the applicable treaty and customary law. International water law is largely covered by the 1997 UN Watercourses Convention and the 1992 United Nations Economic Commission for Europe (UNECE) Water Convention. Neither Afghanistan nor Iran is a participant or signatory of the above Conventions. However, the principle of equitable and reasonable utilization (ERU), as a core principle, and the no-harm rule form part of customary law and are therefore applicable to all states, including Afghanistan. As regards the water requirements that take precedence in the terms of the ERU principle, although no use enjoys inherent priority, “special regard” is paid to “vital human needs” in Article 10(2) of the UN Watercourses Convention, while the significance of environmental protection is stressed in Article 20: “Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses”. Accordingly, if water use threatens the availability of water sufficient to sustain human life consistent with an individual’s right to water, it is considered inequitable, and the preservation of ecosystems at international watercourses is a central concern. The obligation to protect ecosystems is closely connected to the obligation of maintaining the [minimum] environmental flow which is now recognized in general international water law. The obligation of environmental flows, as an important feature of ERU, has also received significant support from recent arbitral and judicial decisions e.g., the case of Kishenganga Arbitration (Pakistan vs. India).

Both Iran and Afghanistan have an equal duty to protect and preserve the ecosystems of the Helmand River Basin and have a shared responsibility for liability and compensation for environmental damage caused by their activities within and beyond their jurisdiction. However, the protection of the Hamoun Wetlands without the cooperation of Afghanistan (as the main source of water) is either unfeasible or inadequate for downstream Iran. In this respect, by breaking its obligation to cooperate and to give adequate notification of planned works, Afghanistan’s decision to deprive downstream lands of natural water flow could be strongly condemned as a breach of the ERU principle in two important ways: a failure to protect vital human needs and to safeguard the affected ecosystems. Scientific findings have already shown severe humanitarian harms resulting from the operation of the Kamal Khan dam as well as a massive irrigation expansion including opium cultivation, to the detriment of the Hamoun wetlands. Consequently, there has been a devastating effect on the livelihoods and health of the dependent population, which has led to involuntary displacement and resettlement. By diverting the natural river course, Afghanistan has inevitably posed serious threats to vital human needs and the ecosystems of the whole basin, and has therefore violated customary principles of international water law.

The Taliban’s violation of international human rights law

The humanitarian conditions caused by Afghanistan’s deliberate action to divert water flow, alongside its failure to cooperate on the matter, are increasingly desperate, with hundreds of thousands of people on both sides of the border suffering water (and food) deprivation. As regards international human rights law, both the international community and authoritative human rights bodies growingly recognise the human right to water. Under Articles 11 and 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to water is legally binding. General Comment 15 – adopted in 2002 by the UN Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the ICESCR – declares that “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights”. Both Iran and Afghanistan have ratified and acceded to the ICESCR. Even though the 1973 treaty does not explicitly deal with the responsibilities of both states concerning the human right to water, all states are obliged to respect the human right to water according to their duties (including positive and negative obligations) under international human rights law. Given the significant transboundary damage resulting from the diversion of the river – denying human vital needs by depriving downstream people of a basic right to drinking water, causing loss of livelihoods, displacing the local downstream residents, and destroying the ecosystem – Afghanistan has not complied with its obligation to assure the rights of individuals under international human rights law.