The dispute over the Helmand River between Iran and Afghanistan is an old one. In the 1870s, when Afghanistan was still under British control, the border between the neighbors was drawn along the main branch of the river. Helmand is a lifeline for both countries. It is Afghanistan’s longest river and it runs into Hamoun Lake. 

In March 2021, the Kamal Khan Dam finally opened after years of setback on the lower Helmand. Naturally, it was met with animus in Iran. In 1973, the two signed the Helmand River Treaty. The agreement guaranteed Iran with a monthly allocation of water from the river. But Tehran insists that its neighbor has consistently failed to hold its end of the deal.

According to Kabul, the dam was built to solve many of the region’s vast infrastructural and agricultural challenges, such as providing farmers in the Nimruz Province with a steady supply of water and electricity. However, Tehran has attempted to halt its construction for years, maintaining that it would interrupt the water supply that feeds the Hamoun wetlands. 

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At the inauguration, former President Ashraf Gani said, “Afghanistan would no longer give free water to anyone, so Iran should provide fuel to Afghans in exchange for water.” Not long after, the country came under the control of the Taliban. 

In late July 2022, Iran’s Foreign Minister Hossein Amir Abdollahian warned his counterpart, Afghanistan’s Amir Khan Muttaqi, that prohibiting Tehran from its rightful access to the Helmand River will only cause further strain to an already splintered relationship. President Ebrahim Raisi, too, urged serious action. 

This article will attempt to address the following question: Is Afghanistan legally permitted to divert the natural course of the Helmand River? Before we begin, let’s underscore the key elements of this bilateral accord.

An Overview of the Helmand River Treaty

According to the Helmand River Treaty of 1973, Afghanistan must deliver water from the Helmand River to Iran at a rate of 22 cubic meters per second per annum (normal water year) with an additional four cubic meters per second for “goodwill and brotherly relations.” This would supply Iran with an annual average of 556,000 acre-feet or 820 million cubic meters under normal conditions. 

But although the treaty guarantees Iran’s access to the Helmand River, Article V gives Afghanistan full rights to the remaining water supply. Article V begins by stipulating Iran’s rightful allocation as specified in the previous articles. However, it continues by stating that Afghanistan, “shall retain all rights to the balance of the water of the Helmand River and may make such use or disposition of the water as it chooses.” 

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The final paragraph of the article emphasizes that Iran is only entitled to the specified amount of water agreed upon, irrespective if  “additional amounts of water may be available” and “be put to beneficial use.” 

Thus, Afghanistan unequivocally has unilateral rights over the remaining water supply of the Helmand River. This means that it has the power to implement agricultural, hydroelectric, and reservoir projects as it sees fit. 

Afghanistan’s sole responsibility is not to pollute the water or take any action that will deprive Iran of its water right entirely or partially. Article V must be read along with Article II (Iran water rights), III (monthly distribution), and IV (i.e., climate change). An argument based on the first paragraph of Article V without considering the context of the treaty and its other provisions will end in unreasonable conclusions.

No Harm, No Foul

That the Helmand River Treaty permits Afghanistan the right to pursue developmental projects over the remaining waters is incontrovertible. However, the question remains whether the development of dams or canals is permissible under customary international law. 

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The Helmand River is considered to be an international or transboundary watercourse. The two neighbors are therefore legally obligated to share the river’s waters. The principle of equitable and reasonable utilization and the no-harm rule is regarded as the cornerstones of international water law and were included in the UN Watercourse Convention in 1997. 

According to the principle of equitable and reasonable utilization, all states are obligated to “use an international watercourse in a manner that is equitable and reasonable vis-a-vis other states sharing the watercourse.” The no-harm rule requires states not to cause significant harm to other states. More precisely, “riparian countries should not use their territorial waters in ways that cause damage and undesirable impact to downstream co-riparian countries.”

Indeed, states have an equal right to an equitable share of a shared river. But the term “equitable” must not be confused with “equal.” Every state has the right to use water equitably but is not entitled to an equal share of the water. Therefore, under customary international law, it is permissible for Afghanistan to develop projects on the Helmand River, so long as they do not cause significant environmental damage to its neighbor. 

It should be stated that without clearly understanding the principle of equitable and reasonable utilization, any activity will be deemed a violation. Such a strict interpretation is neither supported by state practice nor by case law.

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To conclude, neither the Helmand River Treaty nor customary international law denies Afghanistan the right to construct Kamal Khan Dam. It is not a violation of the two aforementioned components of international law. Instead, the Helmand river treaty gives Afghanistan an absolute right to use the remaining water of the Helmand River as it chooses.

What Needs to be Done?

Clearly, the passage of the Helmand River Treaty in 1973, has not led to any peaceful resolution between Iran and Afghanistan. The terms of the agreement have repeatedly been violated, according to Tehran. But Kabul has always insisted that these claims are baseless. 

Iran has complained before that the proper allocation of water was not delivered to them. But these complaints were made at a time when the Helmand River Basin was under drought which severely reduced the river’s water flow. Nonetheless, this must be addressed.

Before, the construction of Kamal Khan Dam, Iran wasn’t ready at all to build these three joint hydrometric stations. It was only agreed upon in the 21st meeting of commissioners (October 2019) when Afghanistan was about to inaugurate Kamal Khan Dam. Kamal Khan Dam is a regulatory dam that diverts/regulate the water of the Helmand river. Before the construction of the Kamal Khan Dam, the water of the Helmand river was flowing to Iran uninterrupted.

To solve this impasse, Afghanistan and Iran must: jointly determine places of delivery and construct joint hydrometric stations as defined under Article III of the treaty. Joint hydrometric stations will settle the issue of the amount of water that is required to be delivered to Iran. Each issue has been addressed by the Helmand River Commissioners who’ve convened at least twenty-five times in the past 20 years. 

Iran has always been against the building of joint hydrometric stations. The reason is that Iran had been receiving more water during normal and above-normal water years. The construction of joint hydrometric stations would regulate their water share more strictly.

An agreement was reached to build joint hydrometric stations in the 21st meeting of the Joint Committee of Commissioners of Helmand River. However, it remains only on paper. Similarly, in August 2022, Afghanistan and Iran again agreed to a timeline for the construction of joint hydrometric stations. But experience shows that it will take years to complete.

In the meantime, Iran should stop digging wells and installing heavy-duty water pumps along the river. Iran has expanded its irrigation and installed pumps through which it diverts 26 million cubic water annually to Zahedan. Such projects will only increase Iran’s water demand. Furthermore, Afghanistan should register the Gowd-e-Zera lake as an international wetland as it is considered to be a part of the Hamouns. [Naveed Ahsan edited this article.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.