Case Study: The Euphrates and the Tigris Rivers as Political and Legal Structures

1. Case Study: The Euphrates and the Tigris Rivers as Political and Legal Structures Joseph W. Dellapenna Villanova University dellapen@law.villanova.edu

3. A Few Facts • The Euphrates • An exotic river • Average flow at Hit—32 BCM, range 10-48 BCM • 98% of flow from Turkey; 2% from Syria • Traditionally, 90% of use in Iraq • The Tigris • Not an exotic river • Average flow at Mosul—23 BCM • Average flow at Kut—49 BCM, range 20-60 BCM • Traditionally less developed uses • The Marshes and the Shatt al Arab • Largest wetland in southwestern Asia • With the Marshes holding the water, an avearge of only 20 BCM reached the Gulf • Traditional home of the Ma’adan (Marsh Arabs) • Destroyed after 1991 uprising in order to preclude resistance to the Baghdad regime

4. The Legal Structure of the Rivers • Upstream development challenges Iraqi uses • Syrian construction of the Tabqa Dam nearly results in war with Iraq in 1975 • Turkey’s Southeast Anatolia Project curtails water for both Syria and Iraq • Few and limited agreements between the States • Most of the basin was within the Ottoman Empire until 1918 • Treaties by the mandatory powers merely promised consultation on the use of the rivers • 1930 Iraqi-Turkish Treaty—Turkey promised not to alter the river without Iraq’s consent • 1946 Iraqi-Turkish Treaty—Turkey agreed to allow Iraq to build dams in Turkey to manage the river (never built) • By 1965, Iraq, Syria, and Turkey established two consultative committees • In 1983, the three countries established the Trilateral Consultative Committee on the Tigris and the Euphrates • In 1990, Turkey pledged to deliver 500 cms of Euphrates water at the Syria border (equivalent to 9 BCM annually) • Iraqi-Syrian agreement of 1990 agreed 42% of Euphrates to Syria, 58% to Iraq • No consultations on the rivers after the Gulf War of 1991

5. The Nature of Customary International Law • Two requirements to prove customary international law: • A consistent practices by States • Out of a sense of legal obligation (opinio juris) • Consider customary law in local settings • Consider a trail between villages • Many real world examples • In good measure, the common law is customary law

6. Milestones in International Water Law • State practice crystallizes for trans-boundary water resources (1900-1950) • The Helsinki Rules approved (ILA, 1966) • The UN Convention on Non-Navigational Uses of International Watercourses approved (1997) • The Gabcikovo-Nagymoros Decision (1997)

7. Customary Rules of International Water Law • Only riparian states have a legal claim upon a water resource • Traditional (competing) theories • Absolute Territorial Sovereignty • Absolute Riverine Integrity • Equitable Utilization

8. The Codified Law of Transboundary Waters and Beyond • Helsinki Rules -equitable utilization is the only rule that matters • UN Convention - major debate regarding the relation of equitable utilization to the “no harm rule” • Needed: adequate coordination of international environmental law, international human rights law, and international water law • States are developing a new governing paradigm - joint, basin-wide management (sometimes called “equitable participation”)

9. The Berlin Rules as aNew International Law of Water Rights • Why the Berlin Rules? • The UN Convention might never come into effect • The UN Convention says little or nothing about most of the questions posed here • Even when the UN Convention does address a point, it provides only a very general framework • The New Paradigm • The Duty to Cooperate • Conjunctive Management • Integrated Management • Equitable Utilization • Sustainable Use • Minimization of Environmental Harm

10. Accessing the Berlin Rules • Go to www.ila-hq.org • Click on “Committees” • Click on “List of Committees” • Scroll down the list to “Former Committees Which Have Completed Their Work in 2000, 2002, and 2004” • Click on “Water Resources Law” to go to the Committee’s Homepage • You will find four relevant documents: • “The 2004 Final Report” (the Berlin Rules) • “The 2004 Resolution English” (the resolution approving the final report) • “The 2004 Resolution French” (the resolution approving the final report) • “The Sources of the 2004 Final Report” (a collection of representative excerpts from international legal instruments that support the provisions of the Berlin Rules)

11. Participatory Water Management Systems • Cooperation between states • Including affected populations • Including all relevant dimensions of the water cycle • even today little clear law regarding groundwater • UN Convention says very little about this • Integrating water resources with other environmental management processes

12. Equitable Utilization • No a priori preferences • Allocation based on: • natural features of the drainage basin • past, present, and foreseeable future needs • alternative means for satisfying needs • the sustainability of use • the avoidance of unnecessary harm • the possibility of compensation for injuries

13. Sustainability and Minimization of Environmental Harm • Ecological Integrity • Prior Assessment of Impacts • Precautionary Principle • Least Net Environmental Harm • Harmonization and Coordination of National Policies • Compensation for Injuries (“Polluter Pays”)

14. Applying Equitable Utilization to the Two Rivers • Differing degrees of reliance on the two rivers • The two rivers provide 45% of the water available to Turkey • The two rivers provide 80% of the water available to Syria • The two rivers provide 98% of the water available to Iraq • The “Peace Pipeline” • And what of ecological needs?

15. An Aside on Shari’a • Did Allah give Turkey the water? • What does shari’a teach about water? • The “path to the watering place” • Water is a communal resource: • Under most schools of shari’a, water in nature cannot be owned or sold • One can own the instruments by which water is exploited (a well, dam, ditch, or canal) • Chafa—the right of satisfy thirst • Chirb—the right to irrigate • Customary rights within particular communities are recognized and enforced

16. What Next? • Cooperative management or conflict? • Disputes over water are common • Actual military conflicts over water are rare • Water is too important to fight over • Can States cooperative over water without cooperating on other matters? • At the very least, cooperative water management regimes create experiences of cooperation • Water management must be integrated with the management of other resources