Lack of Legislation: The Case of the Qosh Tepa Canal and Fundamental Questions About the Adequacy of International Law

Abstract

Afghanistan is building a new irrigation canal. Set on the Amu Darya, it is set to reduce downflow up to 30%, thereby negatively affecting the downstream countries Uzbekistan and Turkmenistan. This article examines the possible legal consequences of the Qosh Tepa Canal for the riparian states, both under regional treaty obligations and customary international law. The Amu Darya Basin is governed by the Interstate Commission for Water Coordination of Central Asia (ICWC), but Afghanistan is not part of it. The article shows that the ICWC is legislatively weak as it operates by consensus and it lacks a mandatory dispute resolution mechanism. However, this very flexibility means its members can adapt their annual water quotas to reduced flows, leaving their treaty obligations intact. A bilateral agreement between Uzbekistan and Afghanistan remains unratified and adds little beyond a reaffirmation of existing customary norms. Turning to customary law, three possible principles of customary law are examined: those of Cooperation; No Significant Harm; and Equitable and Reasonable Usage. It is shown that the principle of cooperation is not reflected in state practice and therefore no customary law, as evidenced by the limited and geographically skewed ratification of the UN Watercourses Convention and even by regional precedents including the Rogun Dam and the Salma Dam. The remaining two principles, while arguably binding on Afghanistan, are so deliberately vague and case-by-case in their application that they offer little practical legal recourse. The article ultimately presents the Qosh Tepa Canal as a case study in the limits of international water management law, where the absence of enforceable obligations leaves the resolution of major transboundary water conflicts to political rather than legal means.