Moslem Law and Water Relations in Central Asia

Rysbekov Yusup Khaidarovich
Scientific-Information Center of Interstate Coordination Water Commission (SIC ICWC) of Central Asia
e-mails: yusuprysbekov@icwc-aral.uz

Abstract

Issues of various legal systems genesis are of significance in terms of application study bearing in mind adaptability of some of their provisions, principles and norms for elaborating national and international (regional) legislation in the water sphere.

Prior to Islamic period legal relations at the earliest stage of states emergence had been forming within the framework of religious-philosophical doctrines, most known of which was Zoroastrianism on the territory of Central Asia (CA) Maverannakhr. Moslem Law (ML) started establishing itself in Maverannakhr, which became the part of the Arab Caliphate, in the end of VII – beginning of VIII cc. Considerable contribution into the development of ML was made in IX-XII cc. by our compatriots: Al Bukhary, At-Termezy, and others. With the beginning of Russian domination in Turkestan (second half of XIX century) the ML-development stopped.

Islam’s proliferation in arid climate zones determined specific character of ML.  Since the artificial irrigation could be effectively managed only by efforts of community, institutes of private and communal ownership of land emerged. I major part, ML norms are imperative and conditioned by its public nature as well as orientation at satisfying common interests.

The problems of CA trans-boundary water management (TWRM), if expressed in one phrase, boil down to “mismatch of interests between upper and lower reaches”. The basic part of the CA-water resources is formed in Kyrgyzstan, Tajikistan and Afghanistan, which are interested in water-power engineering’s development of, and is spent in Kazakhstan, Turkmenistan and Uzbekistan, which develop irrigation.

A line of ML-rules are conformable of the current situation with CA-TWRM:

• In case contradictions occur as to the amount of water, available for use by co-owners of the river, this is to be determined in proportion to areas of their land plots;
• If water distribution is carried out through gateways, then it is forbidden to do both to enlarge and to remove them up the stream;
• If each of co-owners of the river has the right for a known number of gateways, then nobody of them may add a single gateway; etc.
• But it is represented especially important to stop on the following ML-norm:
• If some of the owners cannot make use of the river other than putting a barrage across it and co-owners reach the agreement between themselves, then the turn to withdraw water for irrigation must start from downstream and proceed upstream.

This norm may be accepted as one of the key principles of CA-WRM at the regional and national level. This would to a great extent facilitate observance of water discipline by upstream water users. The above-named norm has not emerged from nowhere; overuse of water by upstream water users is actually beyond enforced control (within the legal framework), as opposed to downstream practices (to turn off water is quite enough for controlling the set limits). In our opinion, implementation of these ML-norm to CA-regional and national water legislation each country of CA is an imperative of the present times.