Case Study: The Euphrates Case Study: The Euphrates and the Tigris Rivers as and the Tigris Rivers as

Political and Legal StructuresPolitical and Legal StructuresJoseph W. DellapennaJoseph W. Dellapenna

Villanova UniversityVillanova University

dellapen@law.villanova.edudellapen@law.villanova.edu

A Few FactsA 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

The Legal Structure of the RiversThe 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

The Nature of Customary The Nature of Customary International LawInternational 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

Milestones in International Water Milestones in International Water LawLaw

• 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)

Customary Rules of International Customary Rules of International Water LawWater Law

• Only riparian states have a legal claim upon a water resource

• Traditional (competing) theories – Absolute Territorial Sovereignty– Absolute Riverine Integrity– Equitable Utilization

The Codified Law of The Codified Law of Transboundary Waters and BeyondTransboundary 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”)

The The Berlin Rules Berlin Rules as aas a New New International Law of Water RightsInternational 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

Accessing the Accessing the Berlin RulesBerlin 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)

Participatory Water Management Participatory Water Management SystemsSystems

• 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

Equitable UtilizationEquitable 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

Sustainability and Minimization of Sustainability and Minimization of Environmental HarmEnvironmental Harm

• Ecological Integrity

• Prior Assessment of Impacts

• Precautionary Principle

• Least Net Environmental Harm

• Harmonization and Coordination of National Policies

• Compensation for Injuries (“Polluter Pays”)

Applying Equitable Utilization to the Applying Equitable Utilization to the Two RiversTwo 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?

An Aside on Shari’aAn 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

What Next?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