Annotation. Transboundary water governance, understood as ownership, development and management of water resources, has been developing in Central Asia since collapse of the Soviet Union and emerges of national water legal systems. However, fairly developed water governance on transboundary basins in the region still requires strengthening through enhancing riparian states‘ cooperation on all levels of interstate cooperation – regional level, transboundary river basins and bilateral level. Joint management arrangements (JMA), which according to widespread international legal practice are used to facilitate interstate cooperation on transboundary water basins, still pose a sufficient challenge to all levels of transboundary water governance in Central Asia.

The most developed JMA in Central Asia is mechanism represented by International Fund for Saving Aral Sea (IFAS) representing all states on the regional level of water governance. Not a flawless legal nature of IFAS envisages current challenges to the development of JMA on all levels of interstate cooperation in Central Asia. Further it reflects the need for further development and strengthening of transboundary water governance in the region.

1. Meaning of water governance concept

Currently existing water crises, among others in Central Asia, are effects of a lucking concept for sustainable water governance (SEHRING 2009). Governance of transboundary waters of Central Asia requires clear and comprehensive rules, which are flexible enough to accommodate current and future challenges for the regional water sector. Maintaining fundamental legal standards of transboundary water governance is the way for securing regional stability, development and mutually beneficial interstate cooperation in Central Asia.

Not having binding legal definition governance may be understood as consisting of such key elements as: ownership, development and management of water resources. State remains permanently sovereign over all natural resources within its territory and these resources fall under explicit regulation of national law. This principle applies to Central Asian countries ownership over water resources. States‘ sovereignty over natural resources is however subject to limitation among other of environmental character not to cause damage to other states‘ environment. Proper application of this principle is important especially in case of transboundary water resources of Central Asia engraved with difficulties in cooperation between up-stream (Kirgizstan and Tajikistan) and down-stream (Kazakhstan, Turkmenistan and Uzbekistan) both on regional and bilateral level.

Management, however not in its narrow, technical sense, is essential element of the definition of governance. It is used to include, next to water development, also „waters‘ use, protection, allocation, regulation, and control, regarding the quality and the quantity of waters‖ (Berlin Rules). Management of transboundary watercourses, also in Central Asia, requires application of fundamental precepts reflected in the large number of international water law treaties and in customary water law. The principle of equitable and reasonable utilization of waters, principle no significant harm and principle of cooperation reflect general rules of law for determination of the scope of states‘ rights and obligations for purposes other than navigation in respect to international watercourses. Legal meaning of these three precepts requires some short clarification, since their application in Central Asian law practice still requires improvements. First; equal rights of a states to utilize international watercourse does not necessarily mean enjoying an equal share in a particular watercourse by all riparian states (SHELTON 2007). Second; reasonable use of waters does not equal most productive use or application of most efficient methods known, but is used to be defined in recognized international water policy instruments. Third, since countries shall take appropriate measures to minimize environmental harm within a state as well as across boundaries, there is no doubt that no state has the right to use or permit the use of its territory in such a manner that it causes damage in or to the territory or the properties (for instance to transboundary water resources) or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. 

A prerequisite of carrying into effect the equitable, reasonable and no harming transboundary water management is the states‘ obligation to cooperate (Art. 8 UN Water Convention). After the collapse of the Soviet Union independent national water systems in Central Asia were established, and interstate cooperation in management of transboundary rivers still requires improvement. States may cooperate using various instruments, especially through information exchange and consultations. Prior notification of planned activities which could cause significant transboundary harm (this essential procedural mechanism is known as environmental impact assessment), presents to states an obligation of customary character regardless whether watercourse states concluded any respective agreement on this issue. These mechanisms of cooperation are not common in interstate treaty practice on transboundary water management in Central Asia. 

In determining the manner of cooperation states ―may consider the establishment of joint mechanisms or commissions to facilitate cooperation‖ (Art. 8 UN Water Convention). Two of here mentioned forms of interstate cooperation do not preclude using of other mechanisms of transboundary states‘ cooperation. Divergence of legal models applicable to state cooperation in water governance worldwide come from states‘ and regions ‗political and physical settings (Berlin Recommendations) as well as from economic, social and cultural traditions of states. To draw some general analysis on the diverse forms facilitating intrastate water cooperation it might be referred to the notion of ―Joint Management Arrangements‖ (JMA), expressing the more expansive approach to the research‘s object. This term is to be understand according to ILA Berlin Rules (Art. 64) as ―a basin wide or joint agency or commission with authority to undertake the integrated management of waters of an international drainage basin‖ to be established by basin states when necessary to ensure the equitable and sustainable use of waters and the prevention of harm; or as any ―other joint mechanisms for the management of waters‖ to be established by basin states when appropriate. 

Undertaking of JMA, although not compulsory, is widespread in international legal practice and is viewed as a most effective tool of states‘ cooperation. Regulation of this legal instrument of transboundary water governance has been chosen for an assessment of the current status and of challenges to governance of transboundary water resources in Central Asia (chapter 3). The general assessment has been supported through exemplifying analysis of the legal status of International Fund for Saving Aral Sea, IFAS (chapter 4). The analyses have been conducted against the necessary background information on current framework of legal regulations on transboundary watercourses in Central Asia (chapter 2). 

2. System of legal regulations and transboundary water governance in Central Asia

Current legal framework for interstate cooperation in governing of transboundary water resources in Central Asia consist of international agreements of either multilateral or bilateral character, as well as either of agreements of general nature or related to specific watercourses or areas of cooperation. These fairly developed regulations (both treaties and ―soft law‖ instruments) have been strengthened by joining by some of Central Asian states of the international water agreements, however still requires improvement. Despite a big number of existing interstate water laws the legal framework proves to be deficient, among others in regards to interstate joint management arrangements on transboundary water cooperation. Weakness of transboundary water governance in Central Asia is being reflected on all levels of interstate cooperation: regional, basin and bilateral levels, including not flawless JMA set up on all these levels. On the regional level of the Aral Sea basin governance is insufficient due to failing to reflect of fundamental international water law principles in the regional laws and due to having set up an improvement requiring legal basis for institutional interstate cooperation; on the level of transboundary river basins involving more than two riparian states, governance is almost complete absent; the bilateral level for watercourses shared by two states comprises very few examples of interstate water governance within Central Asian region. 

Regional level 

Currently the only regional law source of a general nature – Agreement on cooperation in the joint management, use and protection of water resources of interstate sources – was adopted and signed by all five Central Asian states immediately after dissemination of the sinle water management system maintained by Soviet Union till 1992. This document and some others which followed and contributed to building of system of water law sorted out the most urgent issues in water use and allocation between the newly independent states of Central Asia. Unfortunately, nowadays this system – having just declarative character (no adoption of foreseen additional protocols), being outdated or just not properly implemented – does not reflect current water relations on the regional level. The existing regional water framework directly refers neither to legal principles of equitable and reasonable utilization nor to basin management principle. These precepts became part merely of not legally binding three groups of region wide documents: first, Framework Convention for the protection of the environment for sustainable development in Central Asia (2006), which is not in force yet; secondly, Regulations of Heads of States of rather uncertain legal nature, but able to impact the previously legally fixed acts of institutional cooperation among states; thirdly, other ―soft law‖ documents issued by heads of Central Asian states (See: Nukus Declaration of Central Asian States on Sustainable Development of the Aral Sea Basin (1995); the Ashgabat Declaration (1999); the Tashkent Statement (2001); the Dushanbe Declaration (2002); and the Joint Statement of the Heads of State Founders of IFAS (2009)), which enjoy high political significance, however luck legal force. 

Institutional mechanisms for water cooperation on the regional level are fairly developed, however not flawless. International Fund for Saving Aral Sea (IFAS) is ―the most important regional mechanism for cooperation in the Aral Sea basin as a whole‖, which since 2009 holds status of an observer status at the United Nations General Assembly. The Agreement on the legal status of International Fund for Saving Aral Sea, IFAS (1999) converted IFAS into principal body of region-wide water cooperation, but has caused confusion through absorbing into its system the already existing in the region international organisations: Interstate Commission for Water Coordination (ICWC) and the Interstate Commission on Sustainable Development (ICSD) and their subsidiary organs. Unclear legal nature of IFAS has been chosen as a clear example of existing challenges to transboundary water governance and elaborated in the fourth chapter.

Basin level

In the current regime of water management in Central Asia arrangement on the level of transboundary river basins involving more than two riparian states are almost absent. The only such an agreement The 1998 Agreement on the use of water and energy resources in the Syr Darya River basin reflects a rather specific, however very important issue of reciprocal water and energy exchange regime among the Syr Darya basin countries. This agreement of rather technical but not general nature does not reflect common principles of water law. It didn‘t create its own, but referred to earlier established institutions for management of Syr Daria.

Bilateral level

On the bilateral level of cooperation of basin states there are some agreements aimed at defining special regime of cooperation between two riparian watercourse states within Central Asia region, including: between Uzbekistan and Turkmenistan, Kazakhstan and the Kyrgyz Republic and between Kyrgyzstan and Uzbekistan. There are ongoing bilateral interstate negotiations on finalizing transboundary cooperation between Kyrgyzstan and Tajikistan, which outcome cannot be determined on this stage of negotiations. Some Central Asian states contains bilateral cooperation based on relevant bilateral agreements, incl. bilateral transboundary water commissions, with countries neighbouring the region – Kazakhstan with China and Russia, Turkmenistan with Islamic Republic of Iran and Tajikistan with Afghanistan (see Table 1). Existing bilateral agreements could be further developed to introduce broader spectrum of cooperation fields‘ reflecting integrated approach to water management.

Well established legal regime (agreements and soft law instruments) for interstate cooperation in the governance of transboundary water resources in Central Asia, however developing for more than last 20 years, is far from perfect. This regime is currently in operation at two levels: regional (including acts of a general nature) and bilateral (related to specific areas of water cooperation). Since the regime requires modernization and strengthening it is nowadays subject to gradual and constant but protracted development, both on regional as well as on bilateral level. A difficulty in implementation of the key means of transboundary water governance on regional level – JMA– is an important indicator of current challenges to governance of transboundary water resources in Central Asia and will be elaborated below. 

3. Joint management arrangements (JMA) in interstate cooperation in Central Asia

There is no general legal obligation for basin states to enter into transboundary administrative cooperation and to undertake joint management arrangements. In fact however it is a wide spread state practice to establish such arrangements, often viewed as precondition of effective implementation of basic water law principles. More than twenty percent of worldwide identified transboundary water treaties have created JMA (LAUTZE et. al., 2013). Most important multilateral water law agreements – the UN Water Convention (1997) and the Helsinki Convention (1992) refer to establishment of joint bodies/ joint cooperation mechanisms or commissions and determine their scope of activities. The later ones went so far to set a legal obligation for states (not just a recommendation to do so, as it is the case in the UN Water Convention) to establish joint bodies aimed to support interstate bilateral or multilateral cooperation with respect to states being members of Helsinki Convention. Three of five Central Asian states (Kazakhstan, Turkmenistan and Uzbekistan) are currently members to Helsinki Convention and therefore obliged to implement it and comply with its provisions, also in case of the absence of respective bilateral or multilateral agreements between them. Current praxis at bilateral level, also among states not bound by universal JMA requirements, reflects states‘ understanding for the importance of establishment of joint management arrangements in transboundary water basins of Central Asia.

Table 1. Bilateral interstate agreements on transboundary waters in Central Asia

Date of signature

Title of agreement Joint management mechanism

2000  Agreement between the Government of the Republic of Kazakhstan and the Government of Kyrgyz Republic on the Use of Water Management Facilities of Intergovernmental Status on the Rivers Chu and Talas

Joint Commission

The JMA on transboundary waters can be classified according to two criteria‘s, first, scope of application of a joint management arrangements, and second, type of institutional agreements creating legal basis for creating JMA.

According to criterion of a scope of application of JMA, one can specify five categories of arrangements covering:

• entire watercourse basin (see Table 1: Agreement Concerning Use of Water and Energy Resources in Syr Darya River Basin, 1998, using earlier established bodies);
• merely a part of watercourse basin (not represented in Central Asia);
• boundary waters (not represented in Central Asia);
• any other waters (for instance multiple basins) shared by basin states (see Table 1: Agreement on joint action to address the problem of the Aral Sea and surrounding areas, environmental improvement and socioeconomic development of the Aral Sea region, 1993, nowadays represented by IFAS);
• a particular project, program or use of a watercourse (see Table 1: Agreement on Chu and Talas Rivers, 2000, represented by Chu-Talas Commission and Agreement on Panj River, 2010, represented by Working Group).

From the point of view of institutional agreements the JMA on transboundary waters can be classified into following arrangements (UNECE 2009):

• without designation of an institution to implement the agreement;
• the appointment of plenipotentiaries (governmental representatives);
• the establishment of a joint commission, to be understood broadly, responsible for the implementation of the The notion of the latest mechanism varies in states practice between: committee, council, organisation or authority.

Less of international transboundary waters treaties do not foresee any JMA for implementing of the provisions of respective agreement and these are rather treaties of narrow scope of interstate cooperation. In Central Asia The agreement between the Republic of Uzbekistan and Turkmenistan about cooperation on water economic questions (1996) does not stipulate creation of any common administrative mechanism to implement the goals of this agreement. None of transboundary water agreements in Central Asia foresees mechanism of plenipotentiaries for their implementation. There are however treaties, both on regional and bilateral level, which provide for joint mechanisms for the management of transboundary waters in Central Asia.

Reviewing the state treaty practise we can see that joint mechanisms of water management take form of ―permanent organization acting in an official capacity, whose members are appointed by or acting on behalf of national governments‖, and might be divided according to following classification system: committee, commission and authority (LAUTZE et. al., 2013). The least of all powerful mechanisms is council, consisting of state representatives without regular full-time staff meeting every several mounts to discuss policy directions advising their governments. Such a model of cooperation is represented by a bilateral working group, set up in 2013 to implement the Agreement between the Government of the Republic of Tajikistan and Islamic republic of Afghanistan on Hydrological monitoring and gauging stations on the River Panj. Secondly, a commission, which consist of a group of states‘ appointed officials, supported by full-time staff and a technical office, to monitor and regulate management of transboundary watercourse. Without doubts an fairly advanced model of such interstate cooperation reflects Basin Commission on Chu and Talas rivers between Kazakhstan and Kirgizstan. Thirdly, an Authority, which consist of a group of states‘ appointed officials, supported by full-time staff and a technical office, to develop and implement management of transboundary watercourse, in addition to some or all of the functions performed by commissions. The latest category will be helpful in this paper for the purpose of further research on the most developed example of joint mechanism of water management on regional level in Central Asia IFAS. Analysis of the legal nature of the chosen mechanism shall envisage current status and prospects, but also difficulties, in establishment and development of interstate JMA on transboundary waters in Central Asia. Presentation of IFAS will include definition of its legal status, functions, organisational structure, rules of procedure and decision making process. 

4. IFAS as joint management mechanisms on regional level of interstate cooperation in Central Asia

The International Fund for Saving the Aral Sea (IFAS) is the only mechanism involving all five countries of Aral Sea basin. Originally IFAS was established upon Head of States Decision from 1993 on Funding of IFAS to perform financial support to Interstate Council for Saving the Aral Sea but eventually according to the 1999 Agreement replaced it. Mindful of its unique position and institutional importance some weaknesses are to be stated in its legal nature reflecting challenges in regional water governance and directly impact its effectiveness.

Scope of application of IFAS covers a whole basin of Aral Sea. Assessing IFAS according to the earlier mentioned classification of joint mechanisms of water management It can be described as an Authority. IFAS is a high-level body empowered by direct involvement of heads of state (see Table 2: IFAS Council). Typically for Authorities IFAS includes also a political council (See Table 2: IFAS Governing Board), a secretariat (see Table 2: EC IFAS) and technical committees. Unusual is however that an inherent part of the IFAS structure are two separate international organizations whose subunits hold status of international organisations (See Table 2: ICWC and ICSD).

Strategic directions of the IFAS are decided by the Council of Heads of State of Central Asia meeting every 2- 3 years often in form of Decisions, Regulations or other soft law acts. These documents, however of recommendatory character, enjoy high political gravity while lucking judicial force. In the regional state praxis their unusual status allows them to amend the existing binding treaties on existing institutional cooperation of states (see: Regulations on IFAS, ICWC, ICSD, and Decisions on IFAS, etc.). However, according to international law theory such recommendatory documents do not poses status of international governmental treaties either in form or contents. Therefore, they are not equal with binding international agreements concluded among state, neither poses legal force, which in case of dispute would make them prevailing over national legislation of states.

IFAS Presidency, a powerful executive organ of IFAS, is carried by a president of the one of the member countries. There is on-going discussion to review IFAS President‘s scope of executive functions, which was originally justified by the weak regional water cooperation structures, but now might be shifted to Governing Board representing all member countries at the level of the Deputy Prime Ministers. IFAS Presidency is performed on rotatory basis. This solution might seem to be politically unavoidable but is technically and financially inefficient. Rotation of Presidency and respective replacement of EC IFAS between member states induces staff disrupting continuity of works and causes extra financial expenditures.

Legal nature of IFAS is unclear. The 1999 Agreement on the Status of the International Fund for Saving the Aral Sea (IFAS) and its Organizations absorbed into IFAS system the already existing international organisations (ICWC and ICSD), while not defining whether they shall be accounted as ―IFAS organisations‖ and in which way they are subordinated to IFAS. The same Agreement did neither specified IFAS legal status, whether it is an international organisation. Due to its political range IFAS shall probably be accounted for an international interstate organisation. Inclusion into IFAS‘s structure of number of entities enjoying status of an international organisation (EC IFAS, ICWC and ICSD and their subordinated entities) has created a dubious legal situation regarding the structure of water governance on the regional level in Central Asia.

In practice all three entities of IFAS – Executive Committee, ICWC and ICSD – operate quite independently of each other. Also their national branches and divisions located in different member states do not coordinate activities between themselves. There is little cooperation between national units of IFAS. Neither specific competence of all three IFAS institutions was clearly defined. IFAS main function is to financially support common activities of mutual interest to all riparian states to save the Aral Sea (environmental monitoring system, mobilizing financial resources for joint activities, etc.). Its Executive Committee is standing permanent executive body and operates as secretariat, providing administrative and technical support to IFAS statutory activities.

ICWC fulfils separately defined functions. It is an inter-agency body represented on the level of heads of water management departments of the Central Asian countries and has two executive bodies – basin water organizations – created already in the 1980s to control the inter-republic distribution of waters of Amu Darya and Syr Darya. ICWC is responsible for the management, use and protection of water resources of the Amu Darya and Syr Darya rivers. On the water allocation level ICWC lucks however authority to ensure implement of its decisions by member states, neither provides for mechanism of dispute settlement between states on irrigation flow regime. The mandate of ICSD is not limited to water area but includes environmental protection and sustainable development through developing of strategies, etc.13 ICSD consists of member states‘ delegations each including head of the environmental agency, deputy minister of economy and a representative of the scientific community. It activities are not integrated into IFAS what weakens its position within regional cooperation schema in Central Asia. The future entrance into force of the only regional environmental convention from 2006 Framework Convention for the protection of the environment for sustainable development in Central Asia, which establishes its own regional mechanisms of environmental cooperation, might further weaken ICSD position.

Financing of the activities of IFAS shall be based on member states contributions (Kazakhstan, Turkmenistan and Uzbekistan shall pay 0.3% of yearly budget, and Kirgizstan and Tajikistan – 0.1%), what was fixed in Presidents‘ decision from 27 February 1997. In praxis however activities of EC IFAS are financed by country of Presidency and by international donors and luck of financial stability hampers its efficiency.

Unclear legal status of IFAS, including its institutions, and their lucking interdependence, makes its review a matter of urgency. Readiness to strengthen the efficiency of institutional and legal frameworks of the IFAS has been expressed by the heads of member states on 28 April 2009 but not carried into effect yet regardless of continues affords of special Working Group on Strengthening Institutional and legal Frameworks and the Development of Aral Sea Basin Program led under IFAS auspices till today.

Table 2: Structure of IFAS

Source: http://www.ec-ifas.org/uploads/posts/2011-10/1318574382_ifas-structure.jpg (last visit 13.06.2013) 

5. Conclusions

Currently existing water crises in Central Asia are effects of a lucking concept for sustainable water 13 The 1993 Agreement on joint action to address the problem of the Aral Sea and surrounding areas, environmental improvement and socio-economic development of the Aral Sea region established the predecessor of ICSD (Inter-State Council for the Aral Sea basin and the Commission on Socio-Economic Development, Scientific, Technical, and Environmental Cooperation), governance, including ownership, development and management of water resources. Transboundary water governance in Central Asia has been developing since collapse of the Soviet Union and emerges of national legal water regulations. The equitable, reasonable and not harmful transboundary water governance in Central Asia is possible merely through enhancing states‘ cooperation. Existing diverse institutional forms facilitating intrastate water cooperation might be analyzed under broad notion of JMA.

Undertaking of JMA, although not compulsory, is widespread in international legal practice. It however still remains challenge to transboundary water governance in Central Asia on all levels of interstate cooperation: regional – due to weak institutional legal basis; bilateral – while represented by a few examples of interstate water governance mechanisms and its almost complete absence on the level of transboundary river basins involving more than two riparian states.

JMA in interstate cooperation in Central Asia is reflected in state‘s multilateral and bilateral treaty practice on the level of multiple basin and bilateral level on particular water uses. Most frequent form of JMA on bilateral level is basin commission (with an example of most developed Basin Commission on Chu Talas Rivers). Water governance on the regional level is carried by International Fund for Saving Aral Sea, which can be classified as an Authority empowered by direct involvement of heads of states.

Analysis of the legal nature of IFAS, being most developed mechanism of interstate cooperation in Central Asia, envisages current status, quo but also difficulties, in establishment and development of interstate JMA on transboundary waters in Central Asia. Since 2009 there are ongoing works on strengthening of efficiency of institutional and legal frameworks of IFAS. Some problems are related to the division of the scope of competences between IFAS Presidency and Governing Board, as well as to efficiency of its rotatory form of work. Unclear remains the legal status of IFAS itself, which although nowhere fixed as an international organization includes in its structure entities possessing such a legal form (EC IFAS, ICWC, ICSD, etc.). Neither, the hierarchy nor interrelations between IFAS organizations have been clearly settled.

Uncertainties regarding conduct of water governance, in this paper discussed upon the examples of JMA, are best visible on regional level of state cooperation in form of not flawless system of IFAS. This exemplification reflects similar problems of water governance in Central Asia, existing on bilateral and basin level of water governance, and requires further its development and strengthening.

References:

1. Sehring J (2009) Wasser-Governance in Zentralasien: institutionelle Rahmenbedingungen und Herausforderungen. In: Kramer M (ed) Integratives und nachhaltigkeitsorientiertes Wassermanagement. Kooperationspotentiale zwischen Deutschland und Zentralasien, Wiesbaden, pp 69 81.
2. Shelton D (2007) Equity. In: Bodansky D, Brunnée J and Hey E (eds) The Oxford Handbook of International Environmental Law, Oxford University Press, pp 640 & 654
3. Strengthening Water Management and transboundary Water Cooperation in Central Asia: the role of UNECE Environmental conventions, pp 66
4. Lautze J, Wegerich K., Kazbekov J, Yakubov M (2013) International river basin organizations: variation, options and insights. In: Water International, Routledge, Vol. 38, No. 1, pp 31 & 33 
5. Berlin Rules Commentary to Art. 1 of Berlin Rules on Water Resources of the International Law Association, 2004 (ILA Berlin Rules), see: http://www.ila-hq.org/en/committees/index.cfm/cid/32 (last visit 10.06.2013). 
6. ―Berlin Recommendations: Lessons Learned, Challenges and Issues for the Future‖ adopted by the International Round Table: Transboundary Water Management Experience of International River and Lake Commissions (Berlin, 27-30 September 1998), http://www.bmu.de/files/pdfs/allgemein/application/pdf/petersberg_berlin_recommendations1998.pdf (last visit 11.06.2013)