CHAPTER FIVE

GOVERNMENT RESPONSES TO THE WATER ISSUE

Facing new realities of the early 1990s, the Central Asian countries have recognized the necessity to legally adjust their upstream-downstream relations. Over the last decade, the riparian states signed several water treaties and established different interstate organizations in an attempt to achieve this goal. The provisions of these treaties as well as functions of the institutions have gone through a process of corrections and revisions. Yet, they turned out to be unsuccessful in settling the riparian discord between some Central Asian states; namely between Kyrgyzstan, Uzbekistan and Kazakhstan.

Some researchers of water politics hypothesise that the failure of the treaties and the basin arrangements was a result of the time factor, when “the states were forced to rapidly develop management strategies and assume responsibility”¹⁴⁸ imposed either by the treaties or by the institutions. Undoubtedly, the swift political developments of that period did not allow the basin states to negotiate thoroughly the water issue or to develop a sound model of upstream-downstream relations. Nevertheless, there were other crucial factors that undermined the efforts of the co-riparians. These factors included the flat reluctance to forgo individual interests in the name of regional cooperation, the desire for unilateral profit, and the weakness of the enforcement mechanisms of the agreements concerned.

 

5.1 The 1992 Water Treaty

In February 1992, several months after the fragmentation of the Soviet Union, representatives of all Central Asian countries gathered at Almaty (Kazakhstan) to negotiate the management of the water of the region. The meeting resulted in the signing of a treaty on Cooperation in the Field of Joint Management, Use and Protection of Water Resources. The treaty was the first attempt in the history of the newly independent states to settle the water issue that gradually became visible in state interactions. There are several points that make this treaty noteworthy.

First of all, there is a preamble that introduced the main concern of the treaty: “socio-economic problems…[and] ecology-related tension, which have appeared as a result of exhaustion of water resources.”¹⁴⁹ Unquestionably, the disintegrative processes of the early 1990s adversely affected social standards and the economic situations of the majority of the countries. However, the degree of dependence of the national economies on water supplies, as discussed in Chapter Four, makes it possible to assume that the expression socio-economic problems probably referred to challenges faced by the downstream water users.

As for environmental degradation caused by the “exhaustion” of water resources, the way in which this statement has been formulated raises questions. Definitely, there are acute ecological problems in the region associated with desertification and salinization, bio-diversity loss, the shrinking the Aral Sea and others. It is important to emphasize here that degradation has been caused by water mismanagement rather than by the alleged exhaustion of the precious resource.

In fact, recent research has found that the average water consumption in Central Asia is two times higher than in industrialised countries, possessing plentiful water resources.¹⁵⁰ Such high consumption is a result of deterioration of irrigation systems as well as hydraulic units and facilities. For the last ten years little has been done to rehabilitate the hydraulic infrastructure, and to reduce consumption. Moreover, speculating on ecological issues, some riparian states have striven to secure guaranteed water supplies for their water-dependent industries instead of reducing their extravagant water use for the sake of the environment of the region.

Other remarkable points, in terms of their significance for establishing a model of upstream-downstream relations, were stipulated in articles 1, 3, 6 and 12 of the treaty. Thus, for example, article 1 gave the signatories to the treaty equal rights to water resources of the region. Article 3 confirmed the agreement of the co-riparians “not to take any actions that could affect the interests of other parties, which could do damage or result in changes of agreed water releases and lead to pollution of water sources.”¹⁵¹ Further, article 6 pointed out that a littoral state could not make a unilateral decision to develop and use its water potential. In the end, article 12 referred to the consent of the parties “to elaborate a mechanism of economic and other responsibility for breach of established water regime and quotas.”¹⁵²

The last article 7, stipulating the establishment of an interstate water coordinating commission, could be named the most important item of the treaty.¹⁵³ This is so because the proposed commission could become a facilitator in the process of defining the needs of each littoral state and smoothing out conflicts between the co-riparians. In reality, this commission was unable to overcome riparian discords within the region and to resolve conflicting interests of the upstream and downstream water users.

Analysing the provisions of the 1992 water treaty, it becomes obvious that the treaty had been initially doomed to fail because of its narrow focus on the economic and environmental problems of the downstream states, Uzbekistan and Kazakhstan. The treaty basically gave approval for water allocation schemes, which worked successfully in the conditions of the united planned economy.¹⁵⁴ The document neglected to consider the new political realities of the early 1990s. This shortcoming led to a situation, when the needs and interests of the upstream countries, Kyrgyzstan and Tajikistan were given up to the economic well-being and the ecological safety of the downstream neighbours, Uzbekistan and Kazakhstan.

Besides, there is another issue, which brings into question the legitimacy of this treaty. One of the signatories to the document, namely, the Minister of Water Economy of Kyrgyzstan, “did not have the proper authority to sign an international agreement.”¹⁵⁵ Later, this omission contributed considerably to the desire of the state to abrogate the unprofitable agreement and to begin negotiations on a new one.

 

5.2 The 1996 Treaty

The next attempt to create a viable framework for the upstream-downstream relations in Central Asia dates back to April 1996, when delegations from Kyrgyzstan, Uzbekistan and Kazakhstan met in Tashkent (Uzbekistan). Learning a lesson from the earlier treaty, the parties concluded an intergovernmental treaty on the Use of Energy and Water Resources, Construction and Exploitation of Gas Pipelines of the Central Asian Region, which to some extent was profitable for the co-riparians.

The new orientation of this treaty can be easily observed from its title and article 1. The article gave one to understand that the parties eventually recognized the indissoluble connection between the water issue and energy problems in the basin. This understanding came after a number of incidents, which occurred over 1992 to 1995. During this period under the pressure of the circumstances discussed in Chapter Three, upstream Kyrgyzstan changed the operational regime of the Toktogul reservoir from irrigation to power mode, which meant less water was released downstream. Such changes immediately affected economies of downstream Uzbekistan and Kazakhstan, prompting them to link the water issue with supplies of energy resources to upstream Kyrgyzstan.

The main points of article 1 included (i) the co-financing and join implementation of energy projects, (ii) the elaboration of the principles of sharing costs associated with the operation and maintenance of interstate water facilities and (iii) “joint responsibility for non-observance or unconfirmed alterations of energy resources supply schedule as well as reservoir operational regimes adopted by the parties.”¹⁵⁶ Further, article 3 of the treaty consolidated the commitment of the co-riparians to build their relationships in the field of power engineering “on the basis of complementarity and mutual benefit.”¹⁵⁷ Article 6, then, stated that the member-states undertake to “carry out common coordinated policy in the sphere of water use and energy sector.”¹⁵⁸

None of these items was observed in full. In spite of the recognition of the strong link of water and energy problems, neither the upstream nor downstream riparians could put into practice the idea of the exchange of water for energy supplies as advanced in article 1. Thus, for instance, the government of Kazakhstan failed to find funds to buy coal from its privatised coal sector for subsequent delivery to Kyrgyzstan. At the same time, Uzbekistan cut gas supplies to Kyrgyzstan because of its debt. Upstream Kyrgyzstan in turn directed its water potential to make up for the energy deficiency caused by these non-deliveries. As a consequence of the change of the operational regime of the Kyrgyz main reservoir, both Uzbekistan and Kazakhstan suffered water shortages in the summer months.

Furthermore, statements on resource transfers, based on mutual benefits, also remained on paper. While energy-rich countries, Uzbekistan and Kazakhstan increased the export price of their coal and gas up to the market level, Kyrgyzstan over 1995 – 1997 was exporting electricity to its neighbours at a minimum, if not scanty, price: 0,02 cent per kWh to Kazakhstan and 3 cent per kWh to Uzbekistan. For comparison, the average market price of electricity during that period was 6 cent per kWh. Nevertheless, given minimum prices, Kazakhstan did not pay for the electricity imported from Kyrgyzstan, incurring debts of US$ 25 million.¹⁵⁹

Despite the beneficial provisions for both the upstream and downstream water users, the 1996 treaty also failed. The signatories pursued their own unilateral interests and they were reluctant to stick to previously agreed provisions.

 

5.3 The 1997 Treaty

In the summer of 1997 Kyrgyzstan, Uzbekistan, Tajikistan and Kazakhstan conducted series of roundtable meetings, backed by the Environment Policy and Technology Project of the U.S. International Development Agency. In September 1997 after preliminary consultations the basin states signed a new treaty on the Use of the Syr Darya Water Resources.¹⁶⁰

Like in case of the previous treaties, there were certain items that deserved to be examined. The first item is article 4 of the treaty, which provided for compensation to the upper riparian, Kyrgyzstan, for energy loss as a result of the reduction of water releases during the winter period. The article further explained that compensation should be made in the form of coal, gas, and electricity or their monetary equivalents. The article also added that “a tariff should be included in these exchanges based on the cost of operation, maintenance and reconstruction of hydrotechnical facilities.”¹⁶¹

The treaty generally repeated some principles, which had been incorporated in previous treaties. Namely, it stated that the signatories agreed to implement joint hydropower projects, to reduce pollution of the river and to develop water saving technologies. What is of crucial importance in this treaty was the idea to “promote the use of money as a replacement for the current water and energy barter.”¹⁶² Perhaps, this idea is worthy of further attention and study.

Besides, for the first time some technical details were discussed and appeared directly in the agreement. Some of these details were as follows: Kyrgyzstan was supposed to receive 1.1 billion kWh of power in electricity or coal valued at US $ 22 million from Kazakhstan and 400 kWh of power plus 500 m³ of gas valued at US $ 48.5 million from Uzbekistan. Undoubtedly, such details were in favour of Kyrgyzstan in the sense that they determined the amounts of energy supplies as well as their fixed monetary values. In return Kyrgyzstan should deliver 3.25 km³ of water from the Toktogul reservoir in monthly flows and 1.1 billion kWh of summer hydroelectricity to both Kazakhstan and Uzbekistan.

Nevertheless, the 1997 treaty was also unsuccessful. This time the issue of payment of operation and maintenance costs became a stumbling block between the upstream and downstream states. Besides, there was the lack of agreement on tariffs for the Kyrgyz electricity. This discord was rooted in the fact that Uzbekistan was supposed to pay more than Kazakhstan for the same amount of electric power supplies.¹⁶³

 

5.4 The 1998 Treaty

The next official negotiations on the issue of water sharing and energy trade took place in March 1998 in Bishkek (Kyrgyzstan). The meeting resulted in the signing of two important documents: a treaty on the Use of Water and Energy Resources of the Syr Darya River basin and a specific treaty on the Joint and Combined Use of Water and Energy Resources of the Naryn-Syr Darya Cascade of Reservoirs in 1998.

The treaty on the Use of Water and Energy Resources of the Syr Darya River basin consisted of the fourteen articles. Among of them, provisions of articles 1, 3, 4 and 7 deserve special attention in the sense that they reflected additional approaches towards the water and energy problems of the co-riparians.

Article 1 of the treaty determined two types of the operational regime for the Naryn-Syr Darya cascade of reservoirs with a particular schedule for each of the regimes. Thus, for instance, the reservoirs were supposed to operate in the growing season regime from April 01 to October 01, whereas the non-growing season regime should begin in October 01 and finish in April 01.¹⁶⁴ In general terms, such concrete schedules were designed to achieve a balanced operation of the hydraulic infrastructure of the Syr Darya River basin. In terms of specific goals, this schedule could allow the downstream water users, Uzbekistan and Kazakhstan to obtain irrigational water in time.

Drafting article 3 of the treaty, the co-riparians tried once again to seek mutual commitments not to affect the interests of each other. The article consolidated this step by declaring that “the parties commit themselves not to take actions infringing upon the agreed operational regime and delivery schedule of energy resources.”¹⁶⁵ In practice, however, some of the co-riparian states, due to different reasons and under some circumstances, failed to comply with this provision.¹⁶⁶ In fact, while the Kyrgyz and Uzbek sides managed to meet the provision, Kazakhstan with its privatised energy sector interrupted several times supplies for the circle electric grid of Central Asia, causing considerable losses in Kyrgyzstan and Uzbekistan.

The next important point, article 4, obliged downstream Uzbekistan and Kazakhstan to buy equal shares of Kyrgyz hydroelectricity, which was generated during the water releases in the growing season. According to this article, payments for electric power should be carried out in the form of coal and/or gas supplies or in money.

Finally, article 7 introduced the issue of costs related to the operation and maintenance of hydraulic units. In particular, it stated that “the operation, maintenance and reconstruction of hydraulic…facilities shall be covered in accordance with the ownership of the property referred to in the balance sheet and the legal right of ownership.”¹⁶⁷ Such wording probably was in favour of the lower riparian states because the main water facilities of the Syr Darya River basin, which serve mainly the needs of Uzbekistan and Kazakhstan, are situated upstream the river, in Kyrgyzstan. So, by referring to the ownership of the property referred to in the balance sheet and the legal right of ownership, the downstream water users succeeded to avoid the considerable capital investments required to keep the facilities in a proper working condition.

In the course of the Bishkek meeting, the co-riparians also concluded a specific treaty on the Joint and Combined Use of Water and Energy Resources of the Naryn-Syr Darya Cascade of Reservoirs in 1998. In general terms, this treaty was beneficial for each riparian state since its articles 1, 2, 3 and 4 provided very concrete information about energy resources deliveries to Kyrgyzstan as well as water supplies for Uzbekistan and Kazakhstan. Besides, article 6 of this treaty clearly stated that commitments on water supplies by Kyrgyzstan would be fulfilled only on condition that the lower riparians would perform their obligations related to coal/gas supplies and electricity imports. Finally, under article 7 Kyrgyzstan was required to decrease its energy consumption by 10%, which was undoubtedly profitable for the downstream neighbours.

The treaty on the Use of Water and Energy Resources of the Syr Darya River basin together with the specific treaty was recognised as “a great achievement in the area of solution of water and energy problems.”¹⁶⁸ Indeed, these documents were aimed at finding the most perfect and just solution to the water issue and energy sharing in the Syr Darya River basin. Nevertheless, like in previous cases, the two treaties failed by and large because of the non-compliance problem.

 

5.5 The 1999 Draft Agreement

In 1999 Kyrgyzstan, Uzbekistan and Kazakhstan made a decision to revise the specific treaty on the Joint and Combined Use of Water and Energy Resources of the Naryn-Syr Darya Cascade of Reservoirs in 1998 because of the problems associated with non-observation of its provisions. The parties worked out a new draft agreement, which reiterated the main provisions of the previous document and included some new proposals of the co-riparians.

This draft agreement reflected the opposed nature of the upstream-downstream relations within the riparian community of the Syr Darya River basin. In general, the essence of this antagonism lies in the fact that while Kyrgyzstan was interested in prolongation of the provisions of the 1998 specific treaty, downstream Uzbekistan and Kazakhstan tried to abrogate the concrete schedules of energy resources deliveries adopted in 1998.

The new proposals included a requirement that Kazakhstan pay off its electricity debt to Kyrgyzstan, which suggested certain items that would oblige Kazakhstan to pay up. Kazakhstan, however, was against such modifications. Besides, the downstream states expressed their desire to revise the electricity tariff proposed by the Kyrgyz side, arguing that it did not meet market realities within the countries.¹⁶⁹

As a consequence of the lack of agreement among the co-riparians, the 1999 Draft Agreement failed to get beyond the initial stage and has never been signed.

 

5.6 The 2002 Initiatives

According to recent press reports Kyrgyzstan, Uzbekistan and Kazakhstan have approved a draft of a new intergovernmental treaty on the use of water and energy resources of the Syr Darya River basin.¹⁷⁰ This draft treaty is of great interest for the future in the sense that it can shed light on the new approaches of the basin states to the water issue.

 

5.7 Conclusion

For a decade the co-riparians of the Syr Darya River basin have been negotiating water sharing and energy transfer issues. These talks resulted in the signing of interstate treaties and the creation of different interstate institutions. As time has shown, these treaties as well as the institutions were unable to resolve discord between the riparian states of the Syr Darya River basin; namely between Kyrgyzstan, Uzbekistan and Kazakhstan.

There are different forces that weaken the agreements and the arrangements. Thus, for example, one of the main reasons for the failure of the 1992 Water Treaty was the flat reluctance to forgo individual interests in the name of regional cooperation. In fact, the Treaty served the unilateral interests of the downstream riparians, leaving behind the needs of the upper riparian states. Being frustrated by this limitation, the upstream state continued to agitate for more favourable conditions, destabilizing the treaty.

As for the subsequent treaties, they failed mainly because of the aspiration for short-term unilateral profit and the weakness of the enforcement mechanisms of the agreements, which in turn created a non-compliance mentality. Indeed, attempting to cope with economic challenges of the 1990s, both upper and lower riparians fixed high export prices for their resources, be they minerals such as coal, gas and oil, or energy in the form of hydropower. Such attitudes contributed to regional disintegration and made it difficult for the co-riparians to stick to mutual obligations under the treaties.

Being impeded by these forces, the provisions of the treaties have failed or remained paper agreements only. In reality, Kyrgyzstan, Uzbekistan and Kazakhstan have continued to dispute over the transnational water resources of the Syr Darya River basin.

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¹⁴⁸ Stuart Horsman. “Water in Central Asia: Regional Cooperation or Conflict?” In Central Asian Security: the New International Context, edited by Roy Allison and Lena Jonson. Washington: Brookings Institution Press, 2001, p. 72.
¹⁴⁹ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 104.
¹⁵⁰ Sharipzhan Nadyrov. Geokonfliktologiya I Printsipy Sovmestnogo Ispolzovaniya Vodno-energeticheskih Resursov Transgranichnyh Rek v Stranah Tsentralnoi Azii. [A Study of the Geopolitics and Principles of Joint Use of Water-Energy Resources of Transboundary Rivers in the Central Asian Countries]. Hokkaido University, the Slavic Research Centre, Unpublished Seminar Paper, 2002, p. 5.
¹⁵¹ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 104.
¹⁵² Valentina Kasymova, p. 106.
¹⁵³ Valentina Kasymova, p. 105.
¹⁵⁴ Elisa Chait. “Water Politics of Syr Darya Basin, Central Asia: Question of State Interests.” 7 pages. <http://www.iwra.siu.edu/pdf/Chait.pdf> (March 20, 2002).
¹⁵⁵ Elisa Chait. “Water Politics of Syr Darya Basin, Central Asia: Question of State Interests.” 7 pages. <http://www.iwra.siu.edu/pdf/Chait.pdf> (March 20, 2002).
¹⁵⁶ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 113.
¹⁵⁷ Valentina Kasymova, 113.
¹⁵⁸ Valentina Kasymova, 114.
¹⁵⁹ Turdukun Usubaliev. Zakon Kyrgyzskoi Respubliku o Mezhgosudarstvennom Ispolzovanii Vodnyh Obektov, Vodnyh Resursov I Vodohozyaistvennyh Sooruzhenii Kyrgyzskoi Respubliki. [The Law of the Kyrgyz Repyublic on Interstate Use of Hydraulic Unites, Water Resources and Water Facilities of the Kyrgyz Republic]. Bishkek: Sham Publication House, 2002, p. 23.
¹⁶⁰ Sandra Akmatsoy and Daene McKinney. “Aral Sea Water Rights.” Centre for Research in Water Resources, CRWR Online Report 98 no. 3. 205 pages. <http://www.ce.utexas.edu/centers/crwr/reports/online.html> (February 26, 2002).
¹⁶¹ Sandra Akmatsoy and Daene McKinney.
¹⁶² Sandra Akmatsoy and Daene McKinney. “Aral Sea Water Rights.” Centre for Research in Water Resources, CRWR Online Report 98 no. 3. 205 pages. <http://www.ce.utexas.edu/centers/crwr/reports/online.html> (February 26, 2002).
¹⁶³ Sandra Akmatsoy and Daene McKinney.
¹⁶⁴ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 116.
¹⁶⁵ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 117.
¹⁶⁶ Valentina Kasymova. “National Constraining Factors to the Agreement on Water and Energy Use in the Syr Darya River Basin: the Kyrgyz Republic.” US Agency for International Development, Central Asia Mission, 1999, p. 10.
¹⁶⁷ Valentina Kasymova. Voda, Energiya, Ekologiya [Water, Energy, Ecology]. Bishkek: International Fund for Saving the Aral Sea, 2000, p. 117.
¹⁶⁸ Valentina Kasymova. “National Constraining Factors to the Agreement on Water and Energy Use in the Syr Darya River Basin: the Kyrgyz Republic.” US Agency for International Development, Central Asia Mission, 1999, p. 9.
¹⁶⁹ Valentina Kasymova. “National Constraining Factors to the Agreement on Water and Energy Use in the Syr Darya River Basin: the Kyrgyz Republic.” US Agency for International Development, Central Asia Mission, 1999, p. 14.
¹⁷⁰ “Kazakh-Uzbek-Kyrgyz Agreement On Water Use.” UzReport.com. March 20, 2002, 1 page. <http://uzreport.com/eng/disp_news.cfm?ch=238&dep=34&vrec=3405> (March 21, 2002).