Background and Theoretical Foundations: The International Hamoun Wetland, a designated biosphere reserve, is facing destruction despite its rich biodiversity and valuable economic, social, and cultural capacities for local communities. The consequences of this destruction are clearly observable through climate change, dust storms, and the migration of local populations. Apart from internal factors, a primary driver of this situation is the upstream government's utilization practices of the rivers flowing into the wetland. The 1973 Helmand River Treaty between Iran and Afghanistan solely stipulates water rights for agriculture and drinking, without allocating environmental water rights for the wetland.
The significance of this vital ecosystem for the people of Sistan has prompted this research to investigate the legal status of water rights, specifically environmental water flows, for an international wetland. Furthermore, it examines the extent to which Afghanistan's treaty and customary obligations mandate the provision of these flows.
Methodology: This research employs a descriptive-analytical approach. Data were gathered from library sources, including international instruments, international court judgments, and legal scholars' opinions.
Findings: While environmental flows are not inherently or explicitly a binding obligation for Afghanistan, based on certain other treaty and customary rules, there is an obligation for states hosting waters flowing into an international wetland to provide them
Conclusion: Although a specific treaty for environmental flows does not exist in international law, provisions within certain treaties can substantiate the necessity of preserving such water flows and maintaining wetland ecosystems. Afghanistan, in fulfilling its treaty obligations under the Convention on Biological Diversity, is obliged to adopt appropriate measures for the conservation of species and ecosystems. Given the significant richness of aquatic and terrestrial animal and plant species in the Hamoun Wetland and its value as an ecosystem, Afghanistan is bound to take action to protect it. The most evident form of action is the fair utilization of international waterways flowing into the wetland and the allocation of environmental water rights to it. Moreover, based on the decisions of the Conferences of the Parties to the Convention on Biological Diversity, which are considered subsequent practice of the contracting states under rules of interpretation, Afghanistan is obligated to apply an ecosystem approach to the wetland.
Furthermore, in addition to its habitat capacity for various species, the Hamoun Wetland hosts migratory birds. Due to Afghanistan's membership in the Convention on the Conservation of Migratory Species of Wild Animals, it is obligated to conserve this expanse, which again necessitates the provision of adequate water. Afghanistan is also obliged, under the Convention to Combat Desertification and the effects of its upstream activities, to ensure water flow for downstream areas and the Hamoun Wetland.
The obligations enshrined in the Ramsar Convention and the Convention on the Law of the Non-navigational Uses of International Watercourses, despite Afghanistan's non-membership, have acquired customary status. The customary principles of protecting international wetlands, reasonable and equitable utilization of international watercourses, and the prohibition of harm to other states' environments compel Afghanistan to reasonably use the waterways leading to the wetland and to provide water rights for the protection of its ecosystem.
Specific treaties, state practice in domestic legislation, and soft law instruments are also playing an increasingly vital role in solidifying the allocation of environmental flows. These legal requirements enhance Iran's bargaining power in political negotiations with the Afghan government and can be effective alongside other strategies. |
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