The case of euphrates and tigris



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THE LAW OF TRANSBOUNDARY RIVERS

AND

THE CASE OF EUPHRATES AND TIGRIS
By: Professor Yuksel INAN

Bilkent University

Department of International Relations

Introduction


Due to the population increases, demand to water is increasing, not only for consumption but also for other purposes. While new technological innovations contribute positively to the optimum use of water, certain water uses sometimes might have negative effects on the society, e.g. in terms of environmental pollution.

In many parts of the world, the need for fresh and unpolluted water creates disputes when the riparian states do not approach to the concern in a constructive manner. Many of these disputes were settled by the goodwill of the concerned riparian states, primarily by means of meaningful negotiations and exceptionally through international adjudication [e.g. Lake Lanoux Case (France-Spain)]. The parties to the dispute or the adjudication organs aim to base their decisions on the principles of equity1 and justice, also aiming an optimum and a sustainable utilization of the concerned riparian states. Some of those disputes, which were settled through meaningful negotiations, as years pass by, can also be subject to a peaceful review through negotiations. The Nile River Agreement (Sudan and Egypt) and the Columbia River Agreement (Canada-USA) are among those which will be discussed between the parties in the near future, taking into account the past practice since the entry into force of the said agreements.

Water resources in the Eastern Mediterranean and in the Middle East, such as the Nile, Jordan, Tigris and Euphrates rivers are not rich enough to meet all the needs of the relevant riparian states. For this reason, the water resources of the said region should be optimally used and reasonably be allocated among the actual riparian states, according to the principles of justice and equity, taking into account that water is a scarce commodity for the riparian states.

The Euphrates and Tigris rivers are the two major and longest rivers of the Middle East. They both originate from Turkey and then flow through the territories of Syria and Iraq, where an actual shortage of water does not exist, even due to the misuse of water by old-fashioned technologies. Some states of the Middle East, which are not actually and geographically riparian to those rivers, regard the Euphrates and also the Tigris as if the panacea for the water problems of the countries to the south of Turkey. This idea lies on false facts and also on improper legal conceptions. First of all Turkey cannot be regarded as a water rich country, with its surface and ground water potentials, when its actual future needs to water are closely analyzed. Secondly international law, in principle, aims to settle disputes only among the riparian states. For that reason, it is up to the related state whether to allocate some water to a third state, which is not an actual riparian or a riparian but in need of more water, from its own share.2

Disputes related to the optimum and sustainable utilization of the waters of the Euphrates and Tigris rivers between Turkey, Syria and Iraq seems to have political and legal sides as well as consequences. This distinction has to be clearly drawn during the settlement process of the dispute between the parties, if a meaningful and durable settlement is aimed. Indeed, differences of opinion between the riparian states on the referred rivers not only rely on their legal views but also on their material interests.3 Therefore a settlement among the riparian states has to aim to combine those conflicting interests for the realization of an optimum and a sustainable utilization.

Syria and Iraq, by their displayed misleading policies till now and also by implicitly rejecting Turkey’s proposal for a “Three Staged Plan”, based on scientific and legal facts to contribute to an amicable settlement, only succeeded in prolonging the settlement of the related dispute by means of meaningful negotiations aiming a just and equitable settlement. On the other hand, it can be claimed that those countries also had contributed to the escalation of the dispute, while trying to have the political support of certain countries, especially the Islamic World’s.

If Syria and Iraq are really desirous to settle this transboundary river (watercourse) dispute with Turkey, they should provide all the relevant technical data on an objective and realistic bases, for the realization of an equitable, reasonable as well as the optimum utilization of the waters of Euphrates and Tigris rivers. It is a well-known principle of international law that no dispute can be settled without the mutual consent of the concerned states to the dispute, either through various diplomatic means or even by international adjudication. A unilateral application for a compulsory international adjudication seems impossible at the moment, since there is no agreement in force between the parties calling them for a compulsory settlement. Under those conditions, if the lower riparian states do not change their positions, the dispute will remain unresolved.

The Euphrates and Tigris rivers ought to be considered as a transboundary river (watercourse) and not an international river as the lower riparian states claim before some international foras, when the terms (Art. 2/a, b) of the “UN Convention on the Law of the Non-navigational Uses of International Watercourses” are taken into account4, since the Euphrates and Tigris rivers constitute a unitary whole due to their physical relationship and normally flow into a common terminus, parts of which are situated in different countries. In addition, it should be stressed that Syria and Iraq, by the various agreements concluded with Turkey had already accepted the transboundary nature of the Orontes, Euphrates and Tigris rivers, by addressing them as “regional waters” since the 1980s. Such as the “1921 Treaty of Ankara”5, 1923 “Lausanne Peace Treaty”6, 1946 “Protocol I (Protocol Related to the Regulation of the Waters of Euphrates and Tigris Rivers and Their Tributaries) of the Treaty of Friendship and Good Neighborliness”7, and since the 1980s by the “Economic and Technical Co-operation Protocols”8. By the referred protocols, they even agreed for the exchange of technical data aiming to contribute for a settlement. However, despite the written and binding legal promises, the terms of the agreements still do not work.


Turkey’s National And Transboundary Rivers

Turkey has a surface of 780.576 km2. Within this land she has some national rivers over which she is fully sovereign according to the principles of international law. Yesilirmak, Kizilirmak and Sakarya flow into the Black Sea, Gediz and the two Menderes rivers into the Aegean, and Ceyhan, Seyhan and Manavgat into the Mediterranean. Turkey, due to its sovereign rights over those national rivers (inland waters), recently started to meet and is also ready to meet the fresh water demands of the countries at the Eastern Mediterranean region, e.g. the water demands of the TRNC and Israel. The waters of Manavgat meet the fresh water need of those two countries, since the waters of this river are not yet utilized by Turkey or they are her surplus resources at the moment.

In addition to the above-mentioned Turkish national rivers, Turkey also has several transboundary rivers. She is sometimes an upper riparian and sometimes a lower riparian to those transboundary rivers flowing on her territory. She is a lower riparian to the rivers of Meritza, Tundzha, Arda and Orontes, and an upper riparian to the rivers of Coruh, Kurucay, Arpacay, Aras, Zap, Habur, Euphrates and Tigris rivers.

Turkey, as stated above, is sometimes a lower and sometimes an upper riparian state to some of her transboundary rivers. Where she is an upper riparian, and in case of an absence of an agreement between the related riparian states, this in principle puts Turkey in a disadvantageous position and limits her sovereign rights to an extent due to the principles of customary international law, mainly for consumption purposes, in trying to realize an optimum utilization of those waters.

Rules Applicable To Transboundary Watercourse Systems


The rules applied by states for the settlement of bilateral or regional transboundary river disputes do not have uniform or similar provisions and follows a pattern, but some provisions of those agreements do constitute precedents. The agreements concluded till now, despite their contributions to the development of the principles of international law in this area, still have not gained an unchallengeable nature of being norms of customary international law. For this reason it is hard to claim the existence of erga omnes customary international norms, in this field, that binds every state.

The stated reality had led the UN General Assembly to ask from the ILC in 1972 to prepare a frame convention “related to the non-navigational uses of international watercourses”. The draft articles prepared by the ILC were finally debated at the Working Group of the Sixth Committee on 6-25 October 1996 and 24 March-4 April 1997 and the text adopted was later voted at the UN General Assembly on 21 May 1997. By Resolution 51/2299, the UN General Assembly adopted the “Convention on the Law of Non-navigational Uses of International Watercourses”10 by a vote of 103 in favor to 3 against11, with 27 abstentions12. The Convention was open to signature on the same day and remained open until 20 May 2000, and now remains open to acceptance, approval or accession. Since its adoption in May 1997, the Convention still has not come into force due to the lack of the required number of ratifications (Art. 35)13. In other words, since the last seven years, despite being approved by a UN General Assembly Resolution with a sufficient majority, it still did not find the necessary legal support for its entry into force. Even if it was in force, it could only bind the states that are parties to it and not the third states. For this reason, we can neither speak about a framework multilateral treaty in force nor customary norms that deal with the utilization, conservation and management of transboundary water resources.

The Convention, till now, only attracted 16 signatories and 12 ratifications since it was open for signature in 199714. This can easily be interpreted that even the states voted in favor are not satisfied with its provisions and the Convention seems at the moment a dead born one. However, despite this, it is also possible to claim that the Convention also has some positive points, reflecting the international practice, which might contribute to the related law area and which has to be taken into account by the states, jurists and also by the codifiers. Those principles will contribute to and might form the legal foundation in this area of law. Such as:

* the convention declares the principle that transboundary rivers are

shared resources of the riparian states and imposes constraints on the

sovereign rights (absolute sovereign rights) of the riparian states, as

long as no such contrary agreement exists between the related states;



* it lays down the basic obligation and duties of the riparian states

sharing the same basin, simply the mechanisms to cooperate, to give

data and prior information of a technical nature for future uses, and not

to cause significant harm to the others or to take measures in order to

eliminate or litigate such harm with the affected state if such a harm is

really caused;



* it aims to guide the riparian states to negotiate in good faith for

reaching to an amicable settlement and during negotiations to take into

account, in order to balance the interests, all the relevant factors related

to the reasonable, optimum, equitable, and sustainable utilization of the

water resources and to realize an integrated water resources

management;



* transboundary rivers and related installations, in case of an international or a non-

international armed conflict, shall not be used in violation of the principles of

international law and shall enjoy the protection accorded by international law.




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