Anarchy and the Law of International Watercourses: unpacking the role of equitable and reasonable utilisation principle in the pursuit of water conflict transformation

Nagheeby, Mohsen (2021) Anarchy and the Law of International Watercourses: unpacking the role of equitable and reasonable utilisation principle in the pursuit of water conflict transformation. Diploma thesis, Northumbria University.

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Abstract

This thesis investigates the role of the principle of equitable and reasonable utilisation (ERU), as the core customary principle of international water law, in improving hydropolitical relations within anarchic geopolitical setting. By critically analysing the interactions between anarchy and the ERU principle, the study also provides an in-depth understanding of hydropolitical relations in the Helmand River Basin between Afghanistan and Iran.

On the theoretical level, while arguing that anarchic geopolitical setting is a critical determinant of shaping hydropolitical relations, this study tackles the root causes of the failure to implement the ERU principle within such anarchic environment. Drawing upon the two frameworks of Interactional International Law and Transboundary Waters Interaction NexuS (TWINS), the study introduces the Universe of Hydropolitical Relations in order to provide a more nuanced explanation of the complex and interlinked legal and political circumstances surrounding international watercourses. The analysis shows how the interests and identities of states should be more carefully considered together if a “transformation” towards equity is expected in hydropolitical relations. The effectiveness of such transformation depends, in part, on the specific anarchic setting. This thesis, therefore, places a theoretical focus on the ERU principle, whether it has normative power to shape state’s interest and identity, its legitimate function to attack symptoms of anarchy and its potential for rendering hydropolitical relations equitable and sustainable.

At the case-study level, the study assesses the existing treaty over the Helmand River with regards to the ERU principle. With its limited capacity to address the “life cycle of norms” through interactional international law, the analysis shows that the treaty rarely reflects the notion of equity. Despite limited cooperation between Afghanistan and Iran, both riparian states have continued to unilaterally utilise their shared waters. Within such an anarchic setting, the ERU principle serves rather as a bargaining strategy. While Afghanistan has been developing dams, a lack of a positive response to calls to consider environmental impacts and revive the Hamoun wetlands through mutual cooperation reflects a situation that is reminiscent of the “tragedy of the commons.” However, despite the situation in the basin remaining ad hoc for over a century, new developments in cooperation may contribute to creating a shared understanding between Afghanistan and Iran with regard to the utilisation of the Helmand River.

The outcomes of the research will contribute not only to enriching the existing knowledge of complex hydropolitical dynamics but will also benefit policymaking on water diplomacy and peace building processes for international waters at the regional and global levels, such as the 2030 UN agenda. At the case study level, the research will provide in-depth and updated analytical insight into the Helmand River Basin which suffers from limited evidence-based research. In addition, it is expected that practical insights from the case study will help build guidelines for use in other transboundary river basins.

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