Barbara Janusz-Pawletta
International water law and interstate multilateral cooperation on transboundary
watercourses of Kazakhstan
1. Introduction
Transboundary water management is a condition sine qua non for viability of whole socioeconomic and political systems of states’. It is not a purely technical issue, but requires an
integrated approach to use of water in such areas like agriculture, natural sciences and
technology. In order to synchronize all these fields in frame of sustainable water management
proper international legal instruments are required. Existing water related challenges, among
others in Central Asia, are often referred to as being an outcome of weak water governance.
Transboundary water governance in Central Asia requires clear and comprehensive regulatory
frames, which are flexible enough to accommodate current and future challenges for the water
resource and related sectors.
Kazakhstan is heavily dependent on transboundary waters what requires a strong need for
interstate cooperation with its neighbor states like China, Kirgizstan, Russia and Uzbekistan.
While referring to the interstate cooperation on tranboundary watercourses of Kazakhstan one
would need to consider the following sub-levels of cooperation: (i) Regional multilateral level
of the Aral Sea basin, which Kazakhstan is a part of. The (ii) interstate basin level includes
multilateral cooperation exclusively among Kazakhstan and states, which share a basin of Syr
Darya and Irtysh serving for them a common transboundary watercourses. The (iii) bilateral
level of cooperation reflects Kazakhstan relations with no more than one neighboring states
(Kyrgyzstan, Uzbekistan, Turkmenistan, China, Russia) sharing common transboundary
watercourse. Since receiving the independence Kazakhstan used to be active on tranboundary
waters cooperation establishing a number of legal tranboundary relations on the multilateral
and bilateral levels. Due to the limited scope of this paper it deals merely with the frameworks
of Kazakhstan’s multilateral relations on tranboundary watercourses. In this respect two main
multilateral basins needs to be considered (i) Aral Sea basin shared by Kazakhstan together
with its neighbors like Kyrgyzstan, Turkmenistan and Uzbekistan and (ii) Irtysh basin shared
by Kazakhstan with China, Mongolia and Russia. Both basins differ sufficiently from each
other not only in terms of their territorial scope, but in regards to the exiting multilateral
structures which are relevant in the assessment of advancement of the multilateral
tranboundary cooperation on both watercourses.
Departing from the current experience in both basins Kazakhstan could include into it’s
negotiating position some new point in regards to the institutional framework to advance
existing framework of cooperation. In the Aral Sea basin Kazakhstan affords could be
devoted mainly to enhancement of the powers and capacities of the existing multilateral

Barbara Janusz - Pawletta, holds PhD in Law from Free University in Berlin; since 2006 teaches international
law - currently at the Kazakh-German University (DKU) in Almaty as Lecturer of German Academic Exchange
Service (DAAD); former scholar of the Thyssen Foundation in Berlin, Lomonosov State University in Moscow
and Woodrow Wilson Center for International Scholars in Washington DC; member of International Law
Association, London, Commission of the Law of the Sea of the Polish Academy of Science, Russian Society of
International Law.
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institutional structures (mainly of International Fund for Saving Aral Sea). In case of Irtysh
basin additional affords would be required to set up overall institutional structure gathering all
Irtysh riparian states to facilitate mutual cooperation. Kazakhstan has a special position within
both watercourses, which however differs in both basins. Being a downstream country but of
great economic potential in the context of Aral Sea basin Kazakhstan could increase its
impact into enhancement of the regional policy regarding the basin. Respectively, as a country
in the middle of the flow of the Irtysh basin (downstream country in relation to China, but
upstream country in relation to Russia) Kazakhstan could overtake a role as a mediator in
terms of water resources of the Irtysh between both obvious powers which are China and
Russia. In both cases Kazakhstan could strengthen its positing as a driving force towards
strengthening of regional multilateral cooperation in both tranboundary basins.
2. Legal mechanisms for successful transboundary cooperation
To establish well functioning transboundary water cooperation states shall apply main
instruments deriving from international water law. Management of transboundary
watercourses, also in Aral Sea and Irtysh basins, requires application of fundamental precepts
of international water law. The principle of equitable and reasonable utilization of waters,
principle of 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
with respect to international watercourses1. The legal meaning of these three precepts requires
some short clarification, since their application in regional law practice still requires
improvements. First, equal rights of a state to utilize international watercourse does not
necessarily mean enjoying an equal share in a particular watercourse by all riparian states 2.
Second, reasonable use of waters does not equal most productive use or application of most
efficient methods known3, 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
evidence4
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, EIA), presents to states an obligation of customary character regardless of
whether watercourse states concluded any respective agreement on this issue. These
mechanism of cooperation is not very common in interstate treaty practice on transboundary
water management within transboundary basins shared by Kazakhstan with other riparian
states. Second important tool of transboundary cooperation is set up of basin institutions
1
Current legal challenges to institutional governance of transboundary water resources in Central Asia and joint
management arrangements, B. Janusz-Pawletta Environvironmental Earth Sciciences (2015) 73:887–896.
2
Shelton D (2007) Equity. In: Bodansky D, Brunne´e J, Hey E (eds) The oxford handbook of international
environmental law. Oxford University Press, Oxford, pp 640–654.
3
See: Art. 6 of UN Water Convention from 1997
4
Trail Smelter, Arbitral Tribunal Judgment (USA vs. Canada) 1938/1941, 3 R.I.A.A. 1905, Case Concerning
nuclear test (New Zealand and Austria vs. France) 1974, ICJ Rep. 457, Art. 3 Convention on Biological
Diversity (1992), Preamble to Information from the United Nations Framework Convention on Climate Change,
Principle 21 of Stockholm Declaration, Para 21(e) World Charter for Nature.
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involving all riparian states5 and other relevant partners. Institutional mechanisms are to be
listed among core elements of effective transboundary watercourse regimes6. In determining
the manner of cooperation states ‘‘may consider the establishment of joint mechanisms or
commissions to facilitate cooperation’’ (Art. 8 UN Water Convention), where existing
divergence of legal models applicable to state cooperation in water governance worldwide
comes from states’ and regions ‘political and physical settings12 as well as from economic,
social and cultural traditions of states. All such frameworks could be defined as ‘‘joint
management arrangements’’ to be understand as ‘‘a basin wide or joint agency or commission
with authority to undertake the integrated management of waters of an international drainage
basin’’7 They shall 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. In essence,
basin organizations are umbrella organizations for basin management. To keep basin
constituencies and decision makers in all sectors and at all levels, in both the public and
private sector, fully informed and involved basin organizations can take many forms: statutory
decision making and/or advisory bodies, management bodies, development entities and
regulatory bodies (Global water partnership (GWP) & International Network of Basin
Organizations (INBO) 2012).
3. International legal framework deriving from acts of international water and
environmental law signed by Kazakhstan applicable to Aral Sea and Irtysh basins
While looking for some common nominator to assess the potential for transboudary
Kazakhstan’s cooperation in Aral Sea and Irtysh basins one shall refer to international legal
regulations signed by Kazakhstan. They create an obligatory framework for cooperation
between Kazakhstan and these of its neighbor states, which committed themselves to similar
provisions. All they to some extend include the before mentioned principles and mechanisms
relevant for setting up effective framework for tranboundary water cooperation. This here
reflected legal framework is to be derived from acts of international water and environmental
laws and shall be applied in Kazakhstan’s tranboundary cooperation in the Aral Sea and Irtysh
basins for the sake of strengthening of effective regional cooperation. At the same time, these
acts per se create obligations also for Kazakhstan’s neighbor countries in both basins in
regards to implementation of their specific rules and institutional settings into the
tranboundary water management.
Among the international conventions of great importance for tranboundary cooperation of
Kazakhstan first group contains acts of general thematic scope.The main such act is
Convention on the Protection and Use of Transboundary Waters and International Lakes
(UNECE Water Convention), to which out of Kazakhstan neighbors only Uzbekistan and
Turkmenistan are parties to. The UNECE Water Convention codifies the principles of
international water law and has a distinctly cooperative spirit however also provides an
institutional framework for resolving of disputes. There is also a number of other international
conventions, which govern specific aspects related to transboundary waters management,
which Kazakhstan and some of its neighbors are party to. They create the obligation for state
parties to follow their provisions in managing their transboundary waters. It is important to
5
Saleth M (2004) Introduction to special section on River Basin Management: economics, management, and policy, Water Resour
Res 40(8)
6
Wouters P, GWP (2013) International law–facilitating transboundary water cooperation. ttp://www.gwptoolbox.org/images/stories/
gwplibrary/background/tec_17_final_final.pdf (last visited 21/01/2014), p 17
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International Law Association” Berlin Rules on Water Resources” (Art. 64)
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name at least a few of the global agreements, which were adopted by Kazakhstan, and which
objects of regulation were identified within Kazakhstan territory: (i) Convention on
Environmental Impact Assessment in a Transboundary Context (Espoo Convention, from
1991. The Espoo Convention is of great importance for ensuring assessment of impacts across
nexus, where new projects in the fields of also water, agriculture and energy with possible
harmful environmental impact must be discussed with potentially affected neighboring states
(only Kyrgyzstan is a party to, but not Uzbekistan, Turkmenistan, China nor Russia); (ii)
Convention on the Transboundary Effects of Industrial Accidents from 1992 (only Russia is a
party to). This convention protects human being and nature from frequency and severity effect
of industrial accidents, which may occur in all sectors of nexus; (iii) Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in Environmental
Matters (Aarhus Convention, from 1998) providing important condition for putting into effect
the concept of regional cooperation in the Aral Sea basin (only Kyrgyzstan and Turkmenistan
are parties to). Out of regulations offered by modern international law, Kazakhstan cooperates
all Kazakhstan neighbors also in the following framework: (iv) The Convention on Wetlands
Ramsar Convention, 1971, (v) Convention on Biological Diversity, 1992, (vi) Convention to
Combat Desertification 1994; (vii) United Nations Framework Convention on Climate
Change, 1992.
Each and every of the above mentioned international legal conventions offer a prospective
platform for strengthening regional ties between Kazakhstan and its neighbors in the Aral Sea
basin. To full exhaust this potential Kazakhstan could even stronger overtake the lead in
promoting the principles and mechanisms offered by these conventions.
4. Legal and institutional framework regulating regional level of cooperation on
transboundary watercourses in the Aral Sea basin
The legal and institutional framework developing since the 1990s proved unable to solve the
conflict of interests (like regarding the use and allocation between the newly independent
states of Central Asia), but remained strong enough to prevent its further escalation. The
cooperation on this level is based on two types of acts: (1) acts, which were adopted by all the
states of the Aral Sea basin, including Kazakhstan, after the collapse of the Soviet Union and
remain binding also for them; (2) regional soft law documents.
(1) Current regional water law has just declarative character since there was no adoption of
foreseen additional protocols, being outdated or just improperly implemented 8 . It directly
refers neither to the legal principles of equitable and reasonable utilization of resources, nor to
the basin management principle. Also, the current agreements do not regulate groundwater.
The legal framework reflects the obligation not to cause significant harm, and includes
provisions on protection of international watercourses and their ecosystems, which are
however mostly of a general nature. The dispute settlement system works despite absence of
clear regulation to non-compliance monitoring and possible consequences. The regional
agreements recognize the need for creating joint bodies.
(2) regional soft law documents are represented by Regulations of Heads of States, which
despite of rather uncertain legal nature, widely impact institutional cooperation among states;
third, other ‘‘soft law’’ documents issued by the Heads of the Central Asian states defining
8
Strengthening the institutional and legal frameworks of International Fund for Saving Aral Sea: review and
proposals, Discussion Paper of UNECE, GTZ, EC IFAS (draft), 2010.
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political directions of development for the entire Aral Sea Basin,9 which enjoy high political
significance, while lack legal force.
Institutional mechanisms for interstate cooperation at the regional level are fairly developed;
however, they have some flaws. International Fund for Saving Aral Sea (IFAS) is the main
regional mechanism for cooperation in the Aral Sea basin as a whole, which since 2009 holds
the status of an observer at the United Nations General Assembly. The Agreement on the
legal status of International Fund for Saving Aral Sea, IFAS (1999), converted IFAS into the
principal body of region-wide water cooperation, but has caused confusion through absorbing
into its system the already existing international intergovernmental organizations in the
region: the Interstate Commission for Water Coordination (ICWC), the Interstate Commission
on Sustainable Development (ICSD), and their subsidiary organs. ICWC is a regional body,
equipped with a status of international organisation, empowered to address jointly
management, use and protection of waters of interstate sources of the Amu Darya and Syr
Darya rivers. On the water allocation level, ICWC however lacks authority to ensure
implementation of its decisions by member states; first of all, due to the fact that national
ministries in the area of energy are not represented within the ICWC structure, excluding this
important type of watercourses usage from the ICWC authority. Important omission in the
status of ICWC is also its lack of competence in settling disputes among states on irrigation
flow regime, as well as no competence in protection of environment.
The environmental protection and sustainable development are covered by the mandate of
ICSD, which is not limited to water resources, and operates through development of relevant
strategies, etc. Already in 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 a predecessor of ICSD which was the
Commission on Socio-Economic Development, Scientific, Technical, and Environmental
Cooperation. ICSD consists of member states delegations, each including a head of the
environmental agency, a deputy minister of economy and a representative of the scientific
community. Since activities are not sufficiently integrated into IFAS work it weakens its
position within the regional cooperation schema in Central Asia.
A merger of institutions active in the field of water and related management in Central Asia
(ICSD, ICWC, IFAS) and related consolidation of mandates could have offered a chance for
successful implementation of principles of improved intersectoral coordination into practice at
the regional level. To enhance its effectiveness it still requires harmonization of their
competences, better coordination, and a adopt of the legal status of all these bodies to avoid
the subordination of legally independent international law subjects (ICSD, ICWC) under the
structure of another international law subject (IFAS).
5. Legal basis regulating regional level of cooperation on transboundary
watercourses in the Irtysh basin
9
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).
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Current tranboundary legal framework on the Irtysh River basin is regulated by two unrelated
sets of bilateral arrangements between China and Kazakhstan, on the one hand, and between
Russia and Kazakhstan, on the other10. Sino-Kazakh cooperation is based primarily on two
water-related agreements concluded in 2001 and 2011. The 2001 Water Agreement is an
agreement of framework character and limited scope covering “transboundary rivers” rather
than “waters.” It provides for basic water management principles, equity and rationality”
(Article 2), but without offering definition of these notions. However stipulates that “taking
into account mutual interests, no Party shall limit the other Party in the rational use and
protection of the water resources of transboundary rivers” (Article 4), which indirectly means
giving up further discussion about the question on allocation of tranboundary water resources.
So that the question for allocation of water resources remains unresolved only negotiations are
being conducted on the allocation of waters of separate transboundary watercourses. Parties
agreed to limit their freedom of rational use by the requirement for appropriate measures “to
prevent or mitigate serious harm” to another State, but only “as a result of flooding disasters
and man-made accidents” (Article 3). The Agreement offers rather little protection against
harm caused by normal (if excessive) uses of shared waters. It creates a Joint Commission
with a broad mandate for “issues relevant to the implementation of the Agreement.” It
includes with two working groups: on monitoring, analysis, and assessment of the water
quality in transboundary rivers, and on operational responses to emergencies and the
prevention of pollution. Thus, currently bilateral cooperation on the Irtysh between China and
Kazakhstan is being facilitated by two joint commissions functioning in parallel, first,
composed of the representatives of the national water agencies, second- comprised of the
respective ministries of the environment. It may lead to duplication and overlap of
competencies.
The Russian-Kazakh framework of cooperation is based on the Water Agreement11 which was
concluded in 2010 and replaced the treaty of 199212. The 2010 Water Agreement applies to all
transboundary waters, surface and ground. It clearly defines substantive and procedural
obligations of the parties, where parties agreed to prevent transboundary impact impact by
refraining from activities which may cause deterioration of the hydrological and hydrochemical regime of transboundary waters and related ecosystems; taking measures to control
and eliminate pollution, and mitigating negative effects of natural phenomena, such as floods
and erosion; taking measures which ensure proper maintenance of hydrotechnical installations
and waste treatment facilities (Art. 3). Parties obliged themselves to the rational utilization
and protection of transboundary water bodies and the responsibility to ensure that their
activities do not cause damage to transboundary water bodies of another Party and to respect
their earlier agreements and past decisions on the allocation of transboundary water resources.
The procedural obligations include prior notification of planned measures which may cause
transboundary impact; consultations on such measures, exchange of information; monitoring
of transboundary water bodies, compensation of transboundary harm caused by activities on
transboundary water bodies, etc. In terms of procedural cooperation the Agreement
establishes a Joint Commission with wider mandate as the previous body for instance to
determine the parameters of water flow and to modify the water allocation limits in
10
Sergei Vinogradov and Patricia Wouters, Sino-Russian Transboundary Waters: A Legal Perspective on
Cooperation, STOCKHOLM PAPER, December 2013, p. 54.
11
Agreement between the Government of the Russian Federation and the Government of the Republic of
Kazakhstan on Joint Utilisation and Protection of Transboundary Water Bodies from 2010.
12
Agreement between the Government of the Russian Federation and the Government of the Republic of
Kazakhstan on Joint Utilisation and Protection of Transboundary Water Bodies from 1992.
6
transboundary watercourses on the basis of joint assessment of water requirements; to study
planned measures, determine the amount of harm caused compensation.
Both sets of agreements apply to the basin of the Irtysh River merely within the territories
of the two signatory states. They do not affect the manner in which the upper or lower reaches
are used. Nonetheless, each time will defining its policy towards Irtysh Kazakhstan must take
into account its obligations vis-avis Russia when dealing with China and other way around
duties regarding China when dealing with Russia. It creates obvious difficulties for
Kazakhstan in setting its Irtysh strategy. Therefore it seems to be a very important strategic
action to constantly struggle towards setting up mutual legal framework for the whole Irtysh
basin. One of the important goals would be to aim at creating a basin wider joint body, which
is not an easy task, with the responsibility for management, use and protection of whole Irtysh
basin in the mutually beneficial multilateral way.
6. Conclusions
Fairly well-established legal regime for interstate cooperation in the governance of
transboundary water resources shared by Kazakhstan has been developing already for the last
twenty five years. Existing regime of interstate cooperation in Syr Darya Basin is nowadays
subject to gradual and constant, but protracted development.
A difficulty in proper implementation and enhancement of existing policy documents, legal
regulations as well as effectiveness of the institutional mechanisms of transboundary water
governance is an important indicator of current challenges to interstate cooperation on the
scare resources, such as water. The existing framework of cooperation needs strengthening
and modernization to be able to properly implement existing and future challenges to
interstate multilateral cooperation in Syr Darya Basin and Irtysh basins.
A prerequisite of carrying into effect the equitable, reasonable and no harming transboundary
water management is the states’ obligation to cooperate. The fundamental importance of
cooperation between riparian states is the inevitable result of the fact that an international
watercourse is a shared natural resource. Water law facilitates creation of a proper water
management strategy for every transboundary water basin. Management of transboundary
waters shared by Kazakhstan requires clear and comprehensive rules, which are flexible
enough to accommodate current and future challenges. Maintaining the basic legal standards
for transboundary water management is the way for securing regional stability, development
and mutual international cooperation.
The level of today cooperation between Kazakhstan and its neighbours could still be
improved for the sake of mutual benefits, especially in the view of magnitude and complexity
of water usage problems between all mentioned countries. Its proper management is to be
seen as a one of the greatest challenges of the years to come in the bilateral relations. Unclear
is how to allocate limited water resources in their transboundary rivers.
There is number of the opportunities for more effective cooperation is introduction of the
Integrated River Basin Management (IRBM) on the tranboudary rivers between Kazakhstan
and neighbouring states. There is a need for catalysing greater capacity building and
commitment from both states to push for stronger IRBM requiring addressing basin-wide
impacts of dam and other infrastructure projects upstream. Important see to be strengthening
environmental impact assessments (EIAs) and public participation in decision-making on all
hydrologic infrastructure, which could prove advantageous for protecting downstream country
on the transboundary rivers.
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