Introduction:

The management of transboundary water resources, particularly in the context of dam construction, has evolved into one of the most critical challenges among nations and the governing rules of international law. Initially, disputes among states over shared water resources were primarily confined to navigation. However, with the passage of time, other capacities of this vital resource, such as irrigation, hydroelectric power generation, and dam construction, have gained prominence. The government of Iran and its neighbors are also confronted with the issue of dam construction on shared watercourses, including the Bakhshabad Dam on the Farah River.

This dam, situated in the Bala Buluk district of Farah province, represents a crucial water supply and power generation project for Afghanistan, with an estimated storage capacity of 1.2 to 1.3 billion cubic meters and a power generation capacity of 27 megawatts. Upon completion, the project is projected to fully regulate approximately 75% of the Farah River’s peak annual flow. Given that the Farah River is the primary water source for the Hamun-e-Saberi wetland, it is anticipated that no water will reach the wetland in Iran during normal or dry years. This development will inflict irreparable damage on the wetland and the livelihoods of local populations. Moreover, as at least three of the four primary wind corridors in the Sistan region traverse the Hamun Wetland, particularly the Hamun-e-Saberi, the incidence and intensity of regional dust storms are expected to escalate. The legal status of the Bakhshabad Dam construction is the subject of this research.

Research Question:

This article seeks to address the question of what legal standing and status, under international law, Afghanistan’s action as an upstream state in constructing the dam on the Farah River holds in the aforementioned circumstances.

Given that neither state is a party to a global multilateral treaty on this subject, and no bilateral agreement on the utilization of the Farah River has been reached, it is imperative to examine the customary international law rules governing the use of international watercourses. Legal scholars identify the principle of equitable and reasonable utilization, the prohibition of significant harm, and certain procedural obligations as customary rules governing states’ non-navigational uses of shared watercourses.

Methodology:

This research employs a doctrinal methodology with a predominantly positivist approach. The data for this study is compiled from library resources, including legal scholars’ works, international documents, and judicial decisions.

Key Findings:

The principle of equitable and reasonable utilization forms the core of international watercourse law and primarily serves as the basis for upstream states’ new utilization of international watercourses. According to the majority of legal scholars, the International Court of Justice’s exclusive reference to the principle of equitable and reasonable utilization in the Gabčíkovo-Nagymaros case and the 1997 Convention’s articulation affirm its status as the guiding principle of international watercourse law. The principle of significant harm acts as a factor in determining the equitability and reasonableness of utilization and does not necessarily preclude a reasonable and equitable use of the watercourse by the upstream state. The determination of equitability and reasonableness is assessed based on factors such as the drainage basin’s geography, particularly the distribution of surface waters among the relevant states, the basin’s hydrology and each state’s water relations, climate, prior uses, particularly those that have continued, each state’s needs, the availability of alternative resources and their cost, and the necessity to minimize resource wastage. A new use that causes significant harm to another riparian state negates its reasonableness and equitability. Consequently, in the case of the Bakhshabad Dam, Afghanistan must initially conduct a scientific and objective assessment of the benefits and detriments of both states’ utilization based on empirical data and information from other riparian states. If a balance between these factors is not established, as is seemingly the case, Afghanistan’s dam construction cannot be considered equitable and reasonable. Based on the assessment results, the project should be modified or altered, or Afghanistan should compensate Iran for any damages. Furthermore, given the independence of procedural obligations from substantive ones and the failure to fulfill the required actions, Afghanistan has breached its customary procedural obligations, such as prior notification, consultation, and environmental impact assessment, during the dam construction process.

Contribution to the Field:

This article is written in light of the critical living conditions of the Sistan people, the persistent dust storms, and the necessity to comprehend the capabilities and limitations of international law.

Implications and Applications:

This article aims to elucidate the nuances, capacities, and limitations of international watercourse law to enhance the substance of Iran’s negotiations with Afghanistan. However, achieving agreements with neighboring states remains the most effective mechanism for managing shared watercourses.

Conclusion:

The legitimacy of dam construction with transboundary effects under international law is predicated on the principle of equitable and reasonable utilization, subject to various conditions. However, the infliction of significant harm on other states mandates the modification or alteration of the dam-building state’s action or obligates it to provide compensation. Additionally, the state is required to conduct an environmental impact assessment, provide prior notification to other riparian states, and consult with them before and during dam construction. (this Abstract translated by Gemini Ai)