Legality of Potential Iranian Countermeasures against Afghanistan over Helmand River

Ikramuddin
Iranian foreign minister Javad Zarif said in a recent interview with the State television of Iran that Iran can leverage the issues of Afghan refugees and border transactions to resolve the problem of water distribution with Afghanistan. This is the second time Iran has threatened Afghanistan of countermeasures in less than a year. Earlier, in May 2018 Zarif warned that if Iran did not receive their due share in the Helmand River, they would take some strict countermeasures. Mr. Zarif claimed that Iran did not receive its share (22+4 cubic meters per second) of water from the Helmand River as required by the 1973 Helmand River Treaty for the last three months and they have submitted a formal letter of complaint to Afghanistan and summoned Afghan Ambassador to Iran to the Ministry of Foreign Affairs on the issue.
The principal question is that, does Iran have any right under the 1973 Treaty and International Customary or Conventional Law to resort to countermeasures for the implementation of the 1973 Treaty? If the answer is in the affirmative then how can it be achieved? If it is negative, then what other legal means Iran has at its disposal for securing the implementation of the 1973 Treaty? Before proceeding to address these questions in light of both the 1973 Helmand River Treaty and Customary International Law it would be most useful to briefly discuss the basic elements of this bilateral accord.
The 1973 Helmand River Treaty
Afghanistan and Iran entered into a treaty over the apportionment of Helmand River in 1973. This Treaty has specified the share of Iran in the water of Helmand River. Article II of the Treaty declares that Afghanistan shall deliver 22 cubic meters per second annually to Iran [as their water right] and additional four cubic meters per second as the expression of goodwill and brotherly relations in a normal or above normal year. The normal year has been defined in article 1 (c) of the Treaty. It is a year during which the total water flow from the first of October to the end of succeeding September measured and calculated at the hydrometric station at Dehrawud is 4,590,000 acre-feet or 5661.715 cubic meters. However, this amount of water is subject to reduction in the event of climate change. If there is a reduction in the water of the Helmand River, Iran’s rightful share of the water will reduce. Article IV of the Treaty states that if the water flow is less than a normal year, Iran’s share will be reduced and adjusted, but when the water flow of the river is more than a normal year then Iran will receive their share under Articles II and III of the Treaty. Recent reports indicate that in past winter and spring there was less precipitation and it resulted in a drought which has affected thousands of people in northern and southern Afghanistan. The drought had also affected the flow of the Helmand River, and considerable reduction in the water of Helmand River was observed.
If the fall in precipitation this year has caused the water flow of Helmand River to go below normal year as defined in Article I of the Treaty, then Iran’s share in the water will proportionally reduce under Article IV of the Treaty. The claim of 26 cubic meters in a second in a year when the water flow is below the limits of normal year, has no legal basis under the Treaty.
Iran’s Objections Against Afghanistan’s Development Projects
Iran has constantly objected to the developmental projects that Afghanistan has initiated. They have always argued that establishing Dams on the Helmand River will reduce or block water from reaching Iran. The provisions of the 1973 Treaty are very clear with respect to the developmental projects and Dams. Article V of the Treaty states that Iran shall not claim the water of the Helmand River more than the amount specified in Article II, even if an additional amount of water is available in the Helmand River and may be put to beneficial use by Iran. Additionally, Afghanistan shall retain all rights to use or dispose of the water of the Helmand River as it chooses. Afghanistan will have absolute sovereignty over the remaining water of the Helmand River, and it can use it as it prefers. It has the right and power to implement agricultural, hydro-electrical and reservoir projects on the remaining water of Helmand River. The responsibility of Afghanistan is that it shall not pollute the water and shall not take any action which will lead to depriving Iran of its water right entirely or partially. Article V shall be read along with Article II (Iran water right), III (monthly distribution) and IV (climate change) of the Treaty.
Countermeasures
The fact that the 1973 Treaty has dispute settlement mechanism, the threat of countermeasures is peculiar. Iran did not have recourse to the provisions of the 1973 Treaty which provides for the mandatory dispute settlement mechanism. Article IX of the Treaty states that where differences arise between the two States, it shall be resolved through diplomatic channels, and if that did not bear any fruit, then they shall have recourse to the good offices of the third party and lastly if neither of the above efforts results in a solution, the differences shall be submitted to arbitration pursuant to the provisions of protocol no. 2 annexed to the Treaty. Moreover, to oversee the implementation of the Treaty a joint commission from the representatives of both the parties has to be established under Article VIII and protocol 1 of the Treaty. Initial differences are mostly resolved by the commissioners of both the parties. Among other things the commissioners in extreme drought or force majeure shall enter into consultation and shall formulate and submit an urgent necessary plan for meeting or minimizing the emergency to their respective governments.
In a nutshell, either the difference shall be resolved by the commissioners or through the procedure laid down in Article IX of the Treaty and annexed protocol 2. The Treaty neither explicitly nor implicitly allows for countermeasures that a party can take in case of an alleged violation of the provision by one party. Thus, Iran’s potential countermeasures will constitute a violation of Articles VIII, IX, XI, protocol 1 and protocol 2 which has provided detailed procedures that has to be followed for settling any such dispute.
Additionally, customary international law (Art. 22 of Draft Articles on the Responsibility of States for Internationally Wrongful Acts) does allow States to take countermeasures in respect of an internationally wrongful act that is directed against the injured State. However, to do that, certain substantive and procedural conditions must be met for the legality of such countermeasures. One major limitation (Art. 50 of State Responsibility) is that a State cannot resort to countermeasures is a situation where it is under an obligation to fulfill any dispute settlement procedure that is applicable between the two States. Moreover, a State cannot rely on the customary international law when it has contracted out of any relevant rule(s) of the customary international law by entering into a treaty. By agreeing to be bound by treaty provisions, States are deviating from the general legal position, unless it is a jus cogens norm.
Continuous Violations of the 1973 Treaty
Since the Treaty entered into force in 1974 Afghanistan has continuously complied with the provisions of the Treaty. However, as Afghanistan has not implemented necessary projects on the Helmand River to manage the water of the river properly, Iran from the beginning has received two-three times more water than what is allocated under the Treaty. A report published in 1984 indicates, inter alia, that Iran has received on an annual average basis an amount of 63 cubic meters per second or almost three times their share under the Treaty. Similarly, the Ministry of Water and Energy of Afghanistan also claims that Iran receives water four times their share under the Treaty.
Furthermore, Iran has installed in border area almost 100 water pumps that are capable of extracting thousands of cubic meters of water per year and will have adverse impact on the water in Afghanistan. Iran has also built 30 dams on those rivers that flow to Afghanistan, and it has blocked the flow of water into Afghanistan. All these acts constitute a potential violation of customary international law and of Article 7 of the Convention on the Law of Non-Navigational Uses of International Watercourses which imposes an obligation on States not to cause significant harm to other riparian States.
To conclude, Iran’s statements for countermeasures have no legal basis under the provisions of the 1973 Treaty as well as existing Customary International Law. Taking countermeasures without recourse to the terms of the Treaty will constitute a violation of the general international law and the 1973 Treaty.