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The Law of International Water Courses and the Middle East Yüksel Inan

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The Law of International Water Courses and the Middle East Yüksel Inan THE LAW OF INTERNATIONAL WATER COURSES AND THE MIDDLE EAST YÜKSEL INAN Dr Yüksel Inan is Professor of International Law at the Department of International Relations, Bilkent University, Ankara. INTRODUCTION Due to the rising population and its growing needs, the demand for water is inevitably increasing, not arithmetically but geometrically. While new technological innovations improve our ability to meet the new demands on water resources, it also plays an important role in increasing the need for water for production and creates new and additional problems for people and for the environment, e.g. sea pollution. In many parts of the world and on many occasions, the need for fresh unpolluted water has caused disputes. In many of these disputes, the watercourse states involved reached a settlement either by negotiation or, exceptionally, by international adjudication, where decisions were based on equity and justice, aiming at an optimum and sustainable utilisation of the water. Generally, the riparian states were satisfied. To name some of those settled disputes: - Lake Lanoux Case (France-Spain, settled by international adjudication) - Colombia River Dispute (Canada-USA, settled by negotiations) - Indus River Dispute (Pakistan-India, settled by negotiations) - Colorado and Tijuana River Disputes (USA-Mexico, settled by negotiations) - The Chad River Basin Dispute (Cameroon-Chad-Niger-Nigeria, settled by negotiations) - The Nile River Dispute (Sudan-Egypt, settled by negotiations). In the Eastern Mediterranean and the Middle East, water resources such as the Nile, the Jordan, the Tigris and the Euphrates rivers, are not rich enough to meet all the needs of the regional states. Since water is a scarce commodity in the region, all the water resources of the Middle East region should be optimally used and reasonably allocated among the watercourse states. Two major rivers of the Middle East are the Euphrates and Tigris both of which originate in Turkey and flow through territories of Syria and Iraq. Some states of the Middle East regard the Euphrates as the panacea for the water problems of the countries laying to the south east of Turkey. However, this idea is based on a misconception because Turkey is not a water rich country, as can be seen when its future water needs are analysed and compared with its surface and ground water potentials. These misconceptions also raise the question of whether disputes between Turkey and its southern neighbours over the optimum and sustainable utilisation of the waters of the Euphrates and Tigris rivers are political or legal. This question also has to be clearly defined. Differences of opinion between the watercourse states rely not only on their legal views but also on their material interests. There are certain criteria that help us to determine whether a dispute is legal or political. It is obvious that the parties are in a conflict over which norm of international law ought to be applied to the case and in what manner it ought to be interpreted. These are the two basic criteria in determining a legal dispute. Under these criteria, the dispute between Turkey and its southern neighbours is obviously a legal one over the optimum and sustainable utilisation of the waters of the Euphrates and Tigris rivers. But, Syria and Iraq, by claiming that the dispute concerns their vital interests, argue that it is a political one and, by misinforming third-party states, they want to drag the dispute into political forums. Resolution 5553 of 21 March 1996 of the Council of the Arab League is clear evidence of this conviction. This resolution, contrary to the norms of international law, declared these waters ‘international rivers’ and called for a just sharing, albeit that these waters are not shared resources. Further, the resolution implicitly threatened Turkey by calling on international financial institutions to withhold any aid or loans to Turkey for projects either under construction or planned on the Euphrates and Tigris rivers until the other states on these watercourses, Syria and Iraq, give their agreement. In addition, the resolution called on Turkey to stop the flow of polluted water (as if it existed) to Syria and Iraq. In the future, when irrigation of the plains of ?anl›urfa in Turkey is accomplished, the reuse of those waters, which will be polluted to an extent, will be diluted by 30 per cent with fresh water. Inevitably, this scheme will also mean Turkey saves through the optimal use of its natural resources. Syria and Iraq, through their misleading policies and their implicit rejection of Turkey’s well known proposal for a Three-Staged Plan, have only succeeded in prolonging this dispute which must be settled through negotiations for a just and equitable settlement. In fact, they have contributed to the escalation of the dispute, especially in international forums, by trying to win the political support of certain countries. If Syria and Iraq really want to settle this dispute, they should provide all the technical data on objective and realistic grounds. As all statesmen and jurists know, no dispute can be settled without the consent of the concerned states, either by adjudication or by other political ways. To emphasise, since no agreement exists either bilaterally or multilaterally between Turkey, Syria and Iraq for the compulsory settlement of disputes, objective and sincere consent is essential if the riparian states want peaceful resolution of this dispute. EUPHRATES AND TIGRIS: INTERNATIONAL WATER OR INTERNATIONAL WATERCOURSE When the terms of the Convention on the Law of the Non-navigational Uses of International Watercourses are analysed (article 1), we conclude that the Euphrates and Tigris ought to be defined as international watercourses. An international (transboundary) watercourse is a system of surface and ground water that constitutes a unitary whole due to their physical relationship and normally flow into a common terminus, parts of which are situated in different states. This definition excludes navigational criteria and, due to this, the concept of ‘international water (river)’ ought not to be used – it is the wrong concept for this case. It is impossible to navigate on the Euphrates and Tigris rivers above the Shatt-al-Arab region. The judgements of international tribunals for international rivers (e.g. the Permanent Court of International Justice and the Oder River Case) also took into account navigational criteria, or the priority that would be given to navigation, for the validity of the term ‘international water (river)’. A riparian state’s sovereign powers over international waters (rivers) are much more limited than a state’s over an international (transboundary) watercourse. In addition to this basic factor, an international authority or organisation governs or supervises the regime of an international river for certain cases and for certain uses. Since the first half of the twentieth century, the concerned riparian (watercourse) states have accepted in various agreements, the international watercourse character of the Orontes, Euphrates and Tigris rivers. Such as the 1921 Treaty of Ankara, 1923 Lausanne Peace Treaty, 1939 Ankara Agreement, 1946 Treaty of Friendship and, since the 1980s, the Technical Co- operation Protocols. The minutes and the texts of the said protocols expressly declared those waters "regional waters (rivers)" and not "international waters (rivers)". INTERNATIONAL WATERCOURSES AND TURKEY’S GEOGRAPHICAL LOCATION Turkey, due to its geographical location, is sometimes a lower and sometimes an upper riparian state to some international watercourses in the region. It is a lower riparian to the Meritza, Tundzha, Arda and Orontes rivers and an upper riparian to the Çoruh, Kuruçay, Arpaçay, Aras, Zap, Habur, Euphrates and Tigris rivers. This geographic reality in the case of an absence of agreements between the watercourse states, puts Turkey at a disadvantage, before some of the provisions of the "1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses". Both the norms of customary international law and some norms of the said convention limit the sovereign powers of the riparian states to some extent (mainly for consumption purposes) in order to achieve optimum utilisation. Due to this, some of the Middle Eastern and East Mediterranean countries’ need for water can only be met through the unused or surplus sources of national rivers. Those sources for the region, for the time being, could be the national waters (rivers) of Turkey, such as Seyhan, Ceyhan and Manavgat. Indeed, Turkey is willing and ready to meet the fresh water need of Northern Cyprus using the waters of the Manavgat. This project could also help those Middle East and Eastern Mediterranean countries in need of fresh water that really want to meet their demand. As an example of the export of water, during a draught in 1993, Turkey irrigated its soil in Thrace using Bulgarian water by paying an agreed charge. RULES APPLICABLE TO INTERNATIONAL WATERCOURSE SYSTEMS Turkey, being well aware that the Euphrates and Tigris rivers are international (transboundary) watercourses, fully complied with its international obligations arising from customary international law. It informed the lower riparian states, Syria and Iraq, and furnished them with the necessary technical data about its projects, their uses and contributions to Turkey and to them. Turkey also placed itself under international commitments for its promises to the lower riparian states because
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