Water Law and Cooperation in the Euphrates-Tigris Region: A Comparative and Interdisciplinary Approach [1 ed.] 9789004258358, 9789004258341

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Water Law and Cooperation in the Euphrates-Tigris Region

Water Law and Cooperation in the Euphrates-Tigris Region A Comparative and Interdisciplinary Approach Edited by

Aysegül Kibaroglu Adele J. Kirschner Sigrid Mehring Rüdiger Wolfrum

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Advancing cooperation in the Euphrates and Tigris region: (2013: Okan University)  Water law and cooperation in the Euphrates-Tigris region : a comparative and interdisciplinary approach / edited by Aysegul Kibaroglu, Adele J. Kirschner, Sigrid Mehring, Rudiger Wolfrum.   pages cm.  Papers based on conference “Advancing cooperation in the Euphrates and Tigris region: institutional development and—multidisciplinary perspectives” held in the premises of Okan University in Istanbul, Turkey, in May 2012—ECIP text.  Includes bibliographical references and index.  ISBN 978-90-04-25834-1 (hardback : alk. paper) — ISBN 978-90-04-25835-8 (e-book) 1. Water resources development—Law and legislation—Euphrates River Watershed—Congresses. 2. Water resources development—Law and legislation—Tigris River Watershed—Congresses. 3. Euphrates River Watershed—International status 4. Tigris River Watershed—International status I. Kibaroglu, Aysegül, editor of compilation. II. Kirschner, Adele J. III. Mehring, Sigrid. IV. Wolfrum, Rüdiger, editor of compilation. V. Title.  KMC660.E93 A38 2013  341.4’42095674—dc23

2013026861

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-25834-1 (hardback) ISBN 978-90-04-25835-8 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. This book is printed on acid-free paper.

Contents

Preface ............................................................................................................................. ix Acknowledgements ..................................................................................................... xiii Abbreviations ................................................................................................................ xv Notes on the Editors ................................................................................................... xxiii Notes on the Contributors ........................................................................................ xxv PART I

International Water Law: Overview   1. A Survey of Challenges and Trends in the Context of International Water Law ................................................................................................................ Rüdiger Wolfrum and Adele J. Kirschner

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2. International Groundwater Law in the Euphrates and Tigris Region ....... 21 Kerstin Mechlem 3. Governing International Watercourses: Implications of the Human Right to Water ............................................................................................................ 39 Pierre Thielbörger PART II

The Use of Waters of the Euphrates and Tigris 4. Transboundary Water Relations in the Euphrates and Tigris Region ....... 63 Aysegül Kibaroglu

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    5. Sharing and Protecting the Euphrates and Tigris: Legal Status Quo ........ 83 Adele J. Kirschner and Katrin Tiroch     6. Advantages of Marketable Water Rights in the Tigris and Euphrates Basin ........................................................................................................ 119 Evin Wick     7. Dams on Euphrates and Tigris: Impact and Regulation Through International Law ..................................................................................................... 145 Nicolas Bremer     8. Hydrology .................................................................................................................... 177 Johannes Cullmann Part III

Comparative Analysis of National Water Laws in the Euphrates and Tigris Region and European Union Water Law     9. Water Law in Iraq: The Present Model for Water Resources Protection ............................................................................................... 193 Yadgar Kamal Ahmmad 10. Water Management Laws in the Syrian Arab Republic .............................. 217 Rana Kharouf-Gaudig    11. Legal Context of Water Management Policy in Turkey: Evolution of a Complex Framework in Three Stages ....................................................... 229 Vakur Sümer 12. EU Water Law and Its Relevance for the Euphrates and Tigris Region .... 257 Ulrich Beyerlin Part IV

International Experience from other Regions of the World: Comparative Perspectives 13. Procedural System of Transboundary Water Cooperation in the Aral Sea Basin ............................................................................................................ 281 Dinara Ziganshina



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14. The Jordan River: Legal and Institutional Aspects ....................................... 303 Marwan Haddad 15. The Amazon River Basin: Features, History and Legal Framework ........ 331 Lilian del Castillo-Laborde 16. International Cooperation to Protect the Rhine River: Lessons to be Learned for the Euphrates and Tigris Region? ......................................... 357 Katrin Tiroch 17. Sovereignty Revisited—Examining the Rules of International Law that Govern Transboundary Water Resources with a Focus on Upstream/Downstream State Practice—Possible Lessons Learned for the Euphrates-Tigris ......................................................................................... 373 Patricia Wouters Index .................................................................................................................................... 403

Preface

The question of sharing the waters of the Euphrates and Tigris rivers has been a recurring source of tension between Iraq, Syria and Turkey. The respective riparian state’s rights and obligations concerning the Euphrates and Tigris waters are highly contested. Moreover both rivers are severely suffering from increasing water demands and deterioration of water quality. Despite several attempts at a common management, negotiations have not yet led to a comprehensive final agreement among all riparians and little effort has been made to coordinate water development schemes or protect the rivers’ environment. The reasons for this are multiple, ranging from a lack of available data, over conflicting national development priorities to plain mutual distrust. In recent years, one has however been able to observe a growing determination towards the peaceful resolution of contentious water issues in pursuit of sustainable long term cooperation between the rivers’ riparian states. Law can provide a vehicle for this cooperation; international water law is designed to promote transboundary cooperation and trust. To give law its greatest effect, it is important that all actors have a common understanding of the governing legal framework. Even though at the moment many Arab states are undergoing fundamental changes and the fate of Syria remains uncertain, it is still of great significance to follow up on the overall, and in particular the legal developments regarding water management in the region. Unlike many other scholarly works on the subject, Water Law and Cooperation in the Euphrates Tigris Region puts the focus on the governing normative framework, but places it into the wider context of a comparative and inter-disciplinary dimension. The publication thus provides an opportunity to examine different aspects of managing and protecting the waters of the Euphrates and Tigris region including the difficulties and the possible solutions to the growing challenges. The publication is the result of a project on “Water Conflicts in International Law” by the Max Planck Institute for Comparative Public Law and International Law kindly funded by the German Foreign Office, which has for the last two years

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focused on the Euphrates and Tigris region. Next to creating a database for the relevant national and international law applicable to transboundary river basin disputes, the project, inter alia, worked to create a network of international as well as regional experts and scholars working on the subject. The culmination of this work was an international and inter-disciplinary conference on “Advancing Cooperation in the Euphrates and Tigris Region: Institutional Development and Multidisciplinary Perspectives” held in the premises of Okan University in Istanbul, Turkey, in May 2012. This conference was jointly organized with our friend and partner Aysegül Kibaroglu from Okan University, and the Euphrates Tigris Initiative for Cooperation (ETIC). The conference was attended by a wide-ranging group of participants from all riparian states as well as numerous other countries, indicating that the issues which were discussed and that are also mirrored in this publication, reflect some very crucial questions for the region. Although Water Law and Cooperation in the Euphrates Tigris Region is based on the results of this conference, the publication moves beyond merely reproducing the respective presentations. It provides a broader study of various aspects and dimensions of the Euphrates Tigris case. This publication is divided into four parts. Part I serves as an introduction to the legal dimension of transboundary water management. The contributions provide a basic overview of current issues and legal developments in the area of international water law, mapping out trends and contextualizing developments, which are equally relevant for the development of regional and national water law regimes worldwide. Subsequently, Part II examines transboundary issues and relations between Iraq, Syria and Turkey with regard to the effective use of the rivers by the riparians. Next to the physical setting and the hydrology, contributions in this part analyze the political backgrounds and applicable law, as well as the pertinent issues related to the building of large dams or discussing new perspectives for sharing, for example, the advantages of marketable water rights. Part III contains contributions by scholars from the respective riparian countries on the riparians’ national water law followed by a comparative case study of EU water regulations, which are increasingly becoming a determining factor in Turkish water policy. This adds an important and oftentimes neglected dimension. A legal water governance framework needs to be coherent at all levels. Hence, it is important that national laws reflect commitments made by states under international and regional agreements. The contributions in this book are not limited to the Euphrates and Tigris region. By providing case studies of legal and institutional aspects of water management systems in other international river basins, Part IV adds a comparative perspective. This legal comparison aims to help better understand how the different social, ecological and economic factors have influenced the development of certain regimes and also present how the abstract principles of water law are operationalized at the regional level. Eventually, these comparative cases can be used to draw lessons for the Euphrates Tigris region.



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By offering an arena for sharing ideas and developing future prospects, this timely and comprehensive publication not only provides a basis for deepening mutual exchange between scholars and experts from the riparians of the Euphrates and Tigris rivers, namely Iraq, Syria and Turkey, but will hopefully also foster a productive dialogue between practitioners and scholars of different backgrounds. Aysegül Kibaroglu, Adele Kirschner, Sigrid Mehring and Rüdiger Wolfrum

Acknowledgements

A publication such as this one would not have been possible without the help and support of several individuals and institutions. For funding our project work and in particular our joint conference on “Advancing Cooperation in the Euphrates Tigris Region: Institutional Development and Multidisciplinary Perspectives”, which took place from 2 to 4 May 2012 at Okan University in Istanbul, and which paved the way for this publication, we would like to express our sincere gratitude to the German Ministry of Foreign Affairs. The Conference was organized with the combined efforts of the Max Planck Institute for Comparative Public Law and International Law, the Okan University, and the Euphrates-Tigris Initiative for Cooperation (ETIC). In this respect, we would like to acknowledge with deep appreciation the support of Prof. Dr. Sule Kut, the Rector of the Okan University, Dr. Tilmann Röder, the Managing Director of the Max Planck Foundation for International Peace and the Rule of Law,* and Prof. Dr. Faisal Rifai, the Executive Director of the ETIC. Our heartfelt thanks also to the publishing staff at Brill, in particular Marie Sheldon, Diana Steele and Lisa Hanson, for their kind flexibility and dedicated work. We also wish to thank the authors for the informative and enriching contributions as well as their continued commitment. Not only did they all put considerable time and effort into the writing and reviewing process of their contributions, they also did all these in addition to their challenging occupations—for this we would like to express our utmost gratitude.

* The Max Planck Foundation for International Peace and the Rule of Law (MPFPR) is based in Heidelberg. It continues the extensive consulting, training and research projects of the “Global Knowledge Transfer” working group, which existed from 2002 to 2012 at the Max Planck Institute for Comparative Public Law and International Law. For more information please see .

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acknowledgements

Special thanks should go to Katrin Tiroch for her invaluable advice and support throughout the entire working process. Furthermore, we are especially grateful to Ethem Coban for his enduring editorial assistance in the preparation of this book and to Sirin Duygulu for her diligent work in the organization of the Conference. Last, but not least, we would like to thank our families for their kind support all along. Aysegül Kibaroglu, Adele Kirschner, Sigrid Mehring and Rüdiger Wolfrum

Abbreviations

ACP African, Caribbean, and Pacific Countries ACT Amazon Cooperation Treaty ACT-AP Amazon Cooperation Treaty Amendment Protocol ACTO Amazon Cooperation Treaty Organization AMWC Arab Ministerial Water Council ARIJ Applied Research Institute Jerusalem Art./Arts Article/Articles ASBP Aral Sea Basin Program ASCA Amazonian Strategic Cooperation Agenda AWR Available Water Resources bcm billion cubic meters BGBl. Bundesgesetzblatt (German Federal Law Gazette) BGR Bundesanstalt für Geowissenschaften und Rohstoffe (Federal Institute for Geosciences and Natural Resources) BICC Bonn International Center for Conversion CA Central Asia CARs Central Asian Republics CAREWIB Central Asia Regional Water Information Base CESCR Committee on Economic, Social and Cultural Rights cf. Confer CIUP Centro de Investigação da Universidade del Pacífico (Research ­Center of the University of the Pacific) COHRE Centre on Housing Rights and Evictions CPA Coalition Provisional Authority CPIE Council for Protecting and Improving the Environment CRC Convention on the Rights of the Child CSERGE Centre for Social and Economical Research on the Global Environment CTS Consolidated Treaty Series DCW Digital Chart of the World

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abbreviations

DF Distrito Federal (Federal District) DHI Danish Hydraulic Institute Doc. Document DSI Devlet Su İşleri (State Hydraulic Works) EC European Community ECAFE (UN) Economic Commission for Asia and the Far East EC OJ Official Journal of the European Coal and Steel Community Ed./ Eds Editor/Editors EIA Environmental Impact Assessment EPID Environmental Protection and Improvement Directorate  e.g. exempli gratia EIA Environmental Impact Assessment EQS Environmental Quality Standards ESCWA UN Economic and Social Commission for Western Asia ESIA Environmental Social Impact Assessment et al. et alii et seq. et sequens ETIC Euphrates-Tigris Initiative for Cooperation EU European Union EU OJ Official Journal of the European Union EUWI European Union Water Initiative EURAMES European Association of Middle Eastern Studies EWASH Emergency Water Sanitation and Hygiene Group in the Occupied Palestinian Territory FAO Food and Agriculture Organization  FIEOS Future Intelligent Earth Observing Satellites Ft. Foot GA UN General Assembly GAOR UN General Assembly Official Records GAP Güneydoğu Anandolu Projesi (Southeastern Anatolia Project) GDRS General Directorate of the Rural Services GIWA Global International Waters Assessment GIZ Deutsche Gesellschaft für Internationale Zusammenarbeit (GmbH) GOLD General Organization for Land Development GRID Global Resources Information Database GW Gigawatt ha Hectare HEPP Hydro-Electric Power Plants hm Hectometer HPCR Harvard Program on Humanitarian Policy and Conflict Research International Humanitarian Law Research Initiative HPP Hydroelectric Power Plant HRC Human Rights Council



abbreviations

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HSCC High-Level Strategic Cooperation Council ICAS Interstate Council on the Aral Sea ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICPR International Commission for the Protection of the Rhine against Pollution ICJ International Court of Justice ICSD Interstate Commission for Sustainable Development (Central Asia) ICSID International Centre for Settlement of Investments Disputes ICWC Interstate Commission for Water Coordination id. Idem i.e. Id est IFAS International Fund for Saving the Aral Sea IGRAC International Groundwater Resources Assessment Centre ILA International Law Association ILC International Law Commission ILM International Legal Materials ILR International Law Reports IO International Organization IPTRID International Programme for Technology and Research in Irrigation and Drainage ISKI İstanbul Su ve Kanalizasyon İdaresi (Istanbul Water and Sewage Administration) ISPRS International Society for Photogrammetry and Remote Sensing IUCN International Union for Conservation of Nature IWRM Integrated Water Resources Management JCWG Joint Committee Working Group JJRWA Joint Jordan River Water Authority JSET Joint Supervision and Enforcement Mechanism JRB Jordan River Basin JTC Joint Technical Committee JTWR Journal of Transboundary Water Resources JWC Joint Water Committee Kg Kilogram km Kilometer km² Square kilometer km³ Cubic kilometer KRG Kurdistan Regional Government KWh Kilowatt hour m Meter m³ Cubic meter m.a.s.l Meters above sea level MARA Ministry of Agriculture and Rural Affairs

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abbreviations

MC Medida Cautelar (provisional measure) mcm Million cubic meters mm Millimeter MoE Ministry of Environment MoEF Ministry of Environment and Forestry MOM Management Operation Maintenance MoU Memorandum of Understanding MoWFA Ministry of Forestry and Water Affairs MW Mega watt NATO North Atlantic Treaty Organization NAM Non-Aligned Movement NBI Nile Basin Initiative NGO Non-governmental Organization Nile-COM Council of Ministers of Water Affairs of the Nile Basin Nile-SEC Nile Basin Initiative Secretariat Nile-TAC Nile Technical Advisory Committee OAS Organization of American States OECD Organisation for Economic Co-operation and Development OPT Occupied Palestinian Territory  Para./paras Paragraph/Paragraphs PCIJ Permanent Court of International Justice PKK Partiya Karkerên Kurdistan (Kurdistan Workers’ Party) PLO Palestine Liberation Organization PNPCA Procedures for Notification, Prior Consultation and Agreement PNUMA Programa das Nações Unidas para o Meio Ambiente (United Nations Environment Programme) ppm Parts per million RAP Rhine Action Programme RBAS Regional Bureau for Arab States (UNDP) RBMP River Basin Management Plan RCC Revolutionary Command Council RGZ Entscheidungen des Reichsgerichts in Zivilsachen (Collections of the Reich Court in Civil Matters) RCL Reclamacao (Complaint) RSAP Regional Strategic Action Plan on Integrated Water Resources Management and Development s second SADC Southern African Development Community SASS Système Aquifère du Sahara Septentrional (Northwestern Sahara Aquifer System) SIC ICWC Scienctific-Information Center of the Interstate Coordination Water Commission of the Central Asia



abbreviations

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Stat. Statutes at Large T.C. Türkiye Cumhuriyeti (Republic of Turkey) TEAS Techno-Economic Assessment Study TEIA Transboundary Environmental Impact Assessment TEMA Türkiye Erozyonla Mücadele, Ağaçlandırma ve Doğal Varlıkları Koruma Vakfı (Turkish Foundation for Combating Soil Erosion, for Restoration and the Protection of Natural Habitats) TEU Treaty of the European Union TIAS Treaties and Other International Acts UN United Nations UNCED United Nations Conference on Environment and Development UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNECE United Nations Economic Commission for Europe UNEP United Nations Environment Programme UNEP-DHI United Nations Environment Programme Danish Hydraulic Institute UNESCO United Nations Educational, Scientific and Cultural Organization UNICEF United Nations Children’s Fund UNTS United Nations Treaty Series US United States of America USC United States Code USIAD Ulusal Sanayici İşadamları Derneği (National Industrialists’ and Businessmen’s Association) USSR Union of Soviet Socialist Republics VCLT Vienna Convention on the Law of Treaties WB World Bank WCD World Commission on Dams WESI Water and Environment Studies Institute WFD EU Water Framework Directive WHO World Health Organization WMO World Meteorological Organization World Bank OED World Bank Operations Evaluation Department WRI World Resources Institute Yr Year Journals AJIL American Journal of International Law ANN SCI Annals of Science

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abbreviations

Am. U. Intl’l L. Rev. American University International Law Review ArchVR Archiv des Völkerrechts Ariz. St. L. J. Arizona State Law Journal AsianJIL Asian Journal of International Law AJPIL Austrian Journal of Public and International Law AUHFD Ankara Üniversitesi Hukuk Fakültesi Dergisi Brook. J. Int’l L. Brooklyn Journal of International Law B. U. Int’l L. J. Boston University International Law Journal BYIL British Yearbook of International Law Can. J. Civ. Eng. Canadian Journal of Civil Engineering Colo. J. Int’l Envtl. L. & Pol’y Colorado Journal of International Environmental Law and Policy Colum. J. Envtl. L. Columbia Journal of Environmental Law DIP Development in Practice ELR Environmental Law Reporter E+Z Entwicklung und Zusammenarbeit GEO Global Environment Outlook Geophys. Res. Lett Geophysical Research Letter Georgetown Int’l Envr. Law Review Georgetown International Environmental Law Review Geo. Wash. Int’l L. Rev George Washington International Law Review Gonz. J. Int’l L. Gonzaga Journal of International Law Hum. Rts. Q. Human Rights Quarterly ICLR International Community Law Review IJIL Indian Journal of International Law Ind. J. Global Legal Stud. Indiana Journal of Global Legal Studies Int. J. Global Environmental Issues International Journal of Global Environmental Issues Int’l J. Sustainable Society International Journal of Sustainable Society Int’l J. Water Res. Devel. International Journal of Water Resources Development J. Appl. Sci. Journal of Applied Sciences JEL Journal of Environmental Law J. Geogr. Sci. Journal of Geographical Sciences J. Hydrol. Journal of Hydrology JIS Journal of Islamic Studies J. Peace Res. Journal of Peace Research JTWR Journal of Transboundary Water Resources LJIL Leiden Journal of International Law Max Planck UNYB Max Planck Yearbook of United Nations Law



abbreviations

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Mich. L. Rev. Michigan Law Review Millenn. J. Int. Stud. Millennium: Journal of International Studies Nat. Resources J. Natural Resources Journal NQHR Netherlands Quarterly of Human Rights N.Y .U Envtl. L. J. New York University Environmental Law Journal NYU J. Int’l L. & Pol. New York University Journal of International Law and Politics Pace Envtl. L. Rev Pace Environmental Law Review RdC Recueil des Cours de l’Académie de Droit International de la Haye (Collected Courses of the Hague Academy of International Law) RECIEL Review of European Community and International Environmental Law RGDIP Revue générale de droit international public RGL Revue de géographie de Lyon RIAA Reports of International Arbitral Awards Tex. Int’l L. J. Texas International Law Journal Turk. MFA J. Int’l Aff. Turkish Ministry of Foreign Affairs Journal of International Affairs TURK J AGRIC FOR Turkish Journal for Agriculture and Forestry U. Pa. J. Int’l Econ. L. University of Pennsylvania Journal of International Economic Law Water Res. Devel. Water Resources Development Yale F&ES Bulletin Yale School of Forestry & Environmental Studies Bulletin Y. Intl. Env. L. Yearbook of International Environmental Law YILC Yearbook of the International Law Commission

Notes on the Editors

Aysegül Kibaroglu Aysegül Kibaroglu is professor and faculty member in the International Relations Department at Okan University Istanbul, Turkey. Previously, she was a faculty member and the Vice Chair of the Department of International Relations at the Middle East Technical University Ankara, Turkey. Dr. Kibaroglu spent a postdoctoral fellowship in the International Water Law Research Institute at the University of Dundee, Scotland. Her areas of research include: transboundary water politics, international water law, political geography, environmental security and Turkish water policy. Dr. Kibaroglu has published extensively on the politics of water resources with an emphasis on the Euphrates Tigris river basin including a book volume entitled Building a Regime for the Waters of the Euphrates-Tigris River Basin (Kluwer Law International, 2002). She has co-edited a volume, Water Development and Poverty Reduction, with Olcay Ünver and Rajiv Gupta published by the Kluwer Academic Publishers (2003). She has also published articles in the International Negotiation Journal, Water International and the Journal of International Affairs. She co-edited a volume titled Turkey’s Water Policy: National Frameworks and International Cooperation by the Springer-Verlag in 2011. She has also worked as Advisor to the President of the Southeastern Anatolia Project Regional Development Administration from 2001 to 2003. Aysegül Kibaroglu is the founding member of the Euphrates-Tigris Initiative for Cooperation (ETIC), which was established in May 2005. Adele J. Kirschner Adele J. Kirschner studied law at the Universities of Heidelberg, Germany and Geneva, Switzerland, with a specialization in public international law. She works at the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg. Previously she was a research fellow at the Max Planck Institute for Comparative Public Law and International Law and a member of the Institute’s project on ‘Water Conflicts in International Law’. She is also pursuing a Ph.D. in international water law and has published several articles on the topic.

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notes on the editors

Sigrid Mehring Sigrid Mehring studied law at the University of Amsterdam and McGill University in Montréal, Canada which she completed with a LL.M. in public international law. Between 2009 and 2012, Sigrid Mehring worked as a research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany, where she also finished her Ph.D. In 2012, Sigrid joined the Institute’s project on ‘Water Conflicts in International Law’. Currently, Sigrid Mehring is a consultant on the right to health for the Deutsche Internationale Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH. Rüdiger Wolfrum Rüdiger Wolfrum is professor emeritus of national public law and international public law and has held chairs at the University of Mainz, Germany (1982), the University of Kiel, Germany (1982–1993) and at the University of Heidelberg, Germany (1993–2012). Professor Wolfrum was Director of the Institute of International Law at the University of Kiel, and from 1990 to 1993 was also elected as Vice-Rector of the University. He has been Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany, the major research institute on that topic in Germany, from 1993 until his retirement in 2012. From 1996 to 2002, he was the Vice President of the German Research Foundation. He was appointed as Judge at the International Tribunal for the Law of the Sea in Hamburg in August 1996 and has subsequently been re-elected to the position twice in 1999 and 2008 for a period of nine years. He has served as Vice President to the Tribunal from 1996 to 1999 and as President from 2005 to 2008. From 2001 to 2005 Professor Wolfrum was Vice President of the Max Planck Society for the Advancement of Sciences. Since 2013 he is Managing Director of the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg.

Notes on the Contributors

Yadgar Kamal Ahmmad Yadgar Kamal Ahmmad owns a Ph.D. in transboundary water law from the UNESCO Centre for Water Law, Policy and Science at the University of Dundee, Scotland. He holds an LL.M. in Petroleum Law and Policy from the University of Dundee, Scotland and an LL.B. (Ho) from the International Islamic University in Selangor, Malaysia. Currently he is a lecturer at the Law School of Koya University in Erbil, Iraq. Mr. Ahmmad’s area of expertise covers national and international water law, water policy, as well as international and comparative petroleum law and policy. Ulrich Beyerlin Ulrich Beyerlin studied law at the Tübingen University, Germany from 1963 to 1968. He received his first and second state examination in 1968 and 1972 respectively. In 1973 he joined the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany as a senior research fellow. He holds a Ph.D. in law from Tübingen University and was professor for public law and public international law at Heidelberg University from 1994 until his retirement in 2009. His research focus is on German, European and international environmental law. Professor Beyerlin was also Managing Editor of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht) from 1991 to 2007. His main publications include inter alia: Umweltvölkerrecht (Munich, 2000); Bridging the North-South Divide in International Environmental Law, ZaöRV 66 (2006), 259–296); Different Types of Norms in International Environmental Law: Policies, Principles, and Rules, in: D. ­Bodansky/ J. ­Brunnée/E. Hey (eds), Oxford Handbook of International Environmental Law (Oxford, 2007), 425– 448; and together with T. Marauhn: International Environmental Law (Oxford, 2011), pp. 484.

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notes on the contributors

Nikolas Bremer Nicolas Bremer has studied law in Germany, the United States and Peru. In 2008 he graduated from Bucerius Law School in Hamburg, Germany, with a specialization in public international law and European law. He began doctoral research the following year at Justus Liebig University in Giessen, Germany, on international law regulating the non-navigational uses of Euphrates and Tigris, with a special focus on dams. While conducting research on this topic, Mr. Bremer lived in the Levant region and traveled extensively throughout the Euphrates-Tigris region. Currently he works for an international law firm advising in commercial law, commercial arbitration and corporate law in the Middle East. Johannes Cullmann Johannes Cullmann received his Diplom (Masters Degree) in hydrology from the University of Technology in Dresden, Germany in 1999. He studied the hydro­ chemistry of floodplain lakes in Central Amazonia for a joint research project of the Max-Planck Workgroup for Tropical Ecology and the Brazilian National Institute of Amazonian Research (INPA) near Manaus, Brazil. He was also engaged in the German-Chilean technical cooperation in the field of integrated water resources management planning and river restoration in Chillan, Chile. At the University of Bochum, Germany, he was involved in research concerned with the application of the European Water Framework Directive. In 2007 he received a Ph.D. in Hydrology from the University of Technology in Dresden for his work on the synthesis of process models and artificial intelligence for flood forecasting. Since 2007 he heads the German National Secretariat for the International Hydrological Program (IHP) of UNESCO and the Hydrology and Water Resources Program (HWRP) of the WMO. He is editor of the journal Hydrology and Water Resources Management and member of the IHP Bureau for Europe and North America and Hydrological Advisor of the German Permanent Representative with the WMO. His research interests focus on the parameterization of hydrological models and global water resources management. Rana Kharouf-Gaudig Dr. Rana Kharouf-Gaudig is a lawyer. She has worked as a consultant for the UNESCO IHP and the FAO. In 2009, she organized an international training course on water management as a senior program specialist for the German Commission to the UNESCO. Moreover she was awarded the French national award of la Chancellerie des Universités de Paris, Académie de Paris—La Sorbonne for her Ph.D. in public international law on international fresh water law in the Middle East. She was also honored at Damascus University, Syria by ‘Modernising, Activating Women’s Role in Economic Development’ (MAWRED) for her role helping women in Syrian society and for her international achievements. Ms. KharoufGaudig was granted the UNESCO fellowship ‘Empowerment of Women in Peace Studies & Development’ from the Institute for Peace Studies at the Bibliotheca



notes on the contributors

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Alexandrina, Egypt. She holds a bachelor degree in law from the Lebanese University, Lebanon. Marwan Haddad Marwan Haddad is a full professor of environmental engineering in the Department of Civil Engineering at An-Najah National University (ANU) in Nablus, Palestine. Professor Haddad established the Water and Environmental Studies Center at ANU and is currently directing the Water and Environmental Studies Institute (WESI). Moreover, he directed the Civil Engineering Department for six years and was Dean at the College of Engineering. His main area of research lies in water quality and resource management. He has published over 150 papers, and edited over ten international conference proceedings. Specifically, Mr. Haddad directed ten major projects in his field of research financed inter alia by UNESCO, UNDP/ WRAP, UNCTAD, IDRC, SIDA and GTZ. He has received several national and international grants and awards such as the Fulbright fellowship, the American Society of Civil Engineers (ASCE) fellowship, and the Water International Best Paper Award. Aysegül Kibaroglu See ‘Notes on the Editors’ above. Adele J. Kirschner See ‘Notes on the Editors’ above. Lilian Del Castillo-Laborde Prof. Lilian de Castillo-Laborde chairs Public International Law at the University of Buenos Aires, Argentina, where she lectures inter alia undergraduate and postgraduate courses on international jurisdictions, jurisdictional immunities, and sources of international law. She is the author of the articles “Equitable Utilization of Shared Resources” and “La Plata Basin” for the Max Planck Encyclopedia of Public International Law. Prof. Lilian de Castillo-Laborde is Coordinator and former Director of the Plata Basin Office for the Argentinean Ministry of Foreign Affairs. She serves as Secretary General to the International Water Resources Association; Vice President to the Argentine Branch of the International Law Association; Member to the American Society of International Law, and Full Member to the Argentine Association of International Law. Prof. Lilian de Castillo-Laborde has published numerous books, articles, and book chapters inter alia: The Rio de la Plata and its Maritime Front Legal Regime (2007); “Case Law on International Watercourses”, in: W. Dellapenna and Gupta, The Evolution of the Law and Politics of Water (2009); and “The Rio de la Plata River Basin: The Patch towards Basin Institutions”, in: O. Varis (et al.), Management of Transboundary Rivers and Lakes.

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notes on the contributors

Kerstin Mechlem Kerstin Mechlem is a lecturer in international law and human rights at the University of Ulster, United Kingdom. She also works regularly as a consultant on natural resources law, especially water law, and human rights law for a number of international organizations, including FAO and UNESCO. She worked for two years as a researcher at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. At FAO she supported the negotiations of the Voluntary Guidelines on the Right to Food, advised the Special Rapporteur on Shared Natural Resources of the International Law Commission as a member of an interdisciplinary advisory group and gave advice to FAO Member States in Africa and Latin America on natural resources legislation, particularly in the field of water law. Kerstin Mechlem also delivered courses on international law for IDLO and UNITAR. Vakur Sümer Dr. Vakur Sümer is a researcher at Selçuk University Konya, Turkey. He has published several journal articles, as well as two book chapters and attended numerous international and national academic conferences. Vakur Sümer received his Ph.D. from the Middle East Technical University Ankara, Turkey. During 2008– 2009 he was visiting scholar at the Department of Environmental Science and Policy at the University of California Davis, USA. His research interests cover water issues, transboundary rivers, environmental problems and Turkey‘s accession to the European Union. Mr. Sumer is a Member of the International Studies Association Environmental Studies Section. He was awarded for his publication in the journal Water International by the Scientific and Technological Research Council of Turkey (TÜBITAK). Pierre Thielbörger Prof. Dr. Pierre Thielbörger is a J-professor for international law and international humanitarian law at the Institute for International Law of Peace and Armed Conflict and at the Law Faculty at the Ruhr-University Bochum, Germany. He also regularly teaches courses in law, negotiation and communication at various German universities and for the Studienstiftung des Deutschen Volkes. Previously, Dr. Thielbörger worked as a Teaching Fellow in Public Policy at Harvard Kennedy School where he was awarded with Harvard’s ‘Dean’s Award for Excellency in Student Teaching’. Dr. Thielbörger studied law with a focus on international law in Hamburg, Montreal (McGill) and Berlin. He also earned a Master’s degree of Public Policy from Harvard Kennedy School and completed a degree in Journalism & Communication Studies at the University of Hamburg. He holds a Ph.D. in international law from the European University Institute (EUI) in Florence, Italy. The topic of his doctoral dissertation is “The Human Right(s) to Water”. In 2010, his research on the human right to water was awarded with the ‘Harvard Carr Center Human Rights Award’. In 2011, Dr. Thielbörger received



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a Career Integration Grant (CIG) of the EU Funding Program 7 for the project ‘Water Scarcity and Armed Conflict’. Dr. Thielbörger’s most recent publications include the topics of the human right to water and sanitation, recent case law of the European Court of Human Rights and the 2011 military intervention in Libya. Dr. Thielbörger cooperates regularly with the UN Special Rapporteur on the human right to water and sanitation, Catarina de Albuquerque, and has recently completed a report for her on the special water and sanitation needs of island states. Katrin Tiroch Katrin Tiroch studied law at the Universities of Graz, Austria and Utrecht, the Netherlands. Currently she is associate expert at the UN Office of the High Commissioner for Human Rights in Geneva, Switzerland. Previously she worked as a research fellow for the Max Planck Institute of Comparative Public Law and International Law in Heidelberg, Germany. She was also a member of the Institute’s project on “Water Conflicts in International Law”. Her Ph.D. thesis analyzes the problem of marine pollution via rivers taking the Danube River and Black Sea as examples. Furthermore, she has published several articles on international environmental law (water law) and human rights issues and she has edited two books. Evin Wick Evin Wick holds a B.A. from Skidmore College and a J.D. from Georgetown University Law Center, USA where he completed his LL.M. in December 2012. While studying undergraduate economics he became interested in the application of market principles to environment problems. He has worked at the United States Coast Guard’s Office of Environmental Law. His submission in this volume was developed from work done in 2011 as a student of Professor Edith Brown Weiss in International Water Markets at Georgetown University Law Center. Originally from North Carolina, he currently lives in Washington, DC. Rüdiger Wolfrum See ‘Notes on the Editors’ above. Patricia Wouters Patricia Wouters, Ph.D., professor of international law, founding Director of the Dundee UNESCO Centre for Water Law, Policy and Science, visiting Professor at Xiamen Law School, China, visiting Professor at IRES, University of British Columbia, researches issues related to the rules of law (within an interdisciplinary context) that govern international watercourses. Professor Wouters has presented her research around the world and published extensively on topics related to transboundary waters. She has been appointed to a number of global water policy organisations and advisory boards, including the UN University Institute

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of Water, Environment and Health, and the Technical Expert Committee of the Global Water Partnership, and Global Agenda Council on Water Security, World Economic Forum. Professor Wouters continues her research in international water law and strives to contribute to building a new generation of ‘local water leaders’ with expertise in water law. Dinara Zinganshina Dinara R. Ziganshina serves as a Deputy Director for the Scientific Information Centre of Interstate Commission for Water Coordination (SIC ICWC) in Central Asia. She has worked on water management issues at national and transboundary levels and researches, consults, trains and teaches in diverse areas of national and international law as it relates to water. Dinara Ziganshina earned her law degree (J.D. equivalent) from the Tashkent State Institute of Law (Uzbekistan, 2001), LL.M. in Environmental and Natural Resources Law from the University of Oregon School of Law (USA, 2008), and Ph.D. in international water law from the University of Dundee (UK, 2012).

PART I

International Water Law: Overview

Chapter One

A Survey of Challenges and Trends in the Context of International Water Law Rüdiger Wolfrum and Adele J. Kirschner

I. Introduction Access to an adequate quantity of water of appropriate quality is a vital human need. This has been emphasized by the UN Committee on Economic, Social and Cultural Rights recognizing a human right to water, a right which, more recently, has been confirmed more generally.1 However, water is not only essential for each individual’s wellbeing, adequate access to water is equally essential for the eco­ nomic development of a society since industrial as well as agricultural develop­ ment depend thereupon. In consequence, a fair and sustainable management of the water resources becomes necessary in case of overall shortage as well as to accommodate the various competing usages. This requires cooperation among all actors not only at the national and local but also at the international level to share, effectively manage and protect the world’s freshwater bodies. Law has an important role to play when it comes to sharing international waters and cooperation is unlikely to be established sustain­ ably without appropriate legal support. Whereas it provides no universal remedy, a sound regulatory framework offers a structure providing stability and predict­ ability to the complex and delicate questions related to the development and use

1 See UN Doc. A/RES./64/292 of 28 July 2010; UN Doc. A/HRC/RES/15/9 of 30 September 2010; UN Committee on Economic Social and Cultural Rights (CESCR), “General Com­ ment No. 15: The Right to Water (arts 11 and 12)”, UN Doc. E/C.12/2002/11 of 20 January 2003; in general on the human right to water see e.g. P. Thielbörger, The Right(s) to Water, 2013; I. Winkler, The Human Right to Water, 2012; A. J. Kirschner, “The Human Right to Water and Sanitation”, in: A. von Bogdandy / R. Wolfrum (eds), Max Planck UNYB 15 (2011), 445; E. Riedel / P. Rothen (eds), The Human Right to Water, 2006; on the right in a transboundary context see P. Thielboerger in this book.

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of common waters. It has developed and been designed to prevent disputes and promote cooperative management approaches and trust.2 Clearly this body of law did not develop over night, but is the outcome of a long, complex and still ongoing evolutionary process.3 Just as approaches to water management are developing in response to new needs and global challenges,4 so is (international) law. The objective of this contribution is to give the reader a short overview of the development of international water law (II.), and to survey new challenges and trends (III.), by looking at how international law is respond­ ing to these new approaches and global challenges. Although the focus is on the international level, these developments are equally significant and challenging for the development of regional and national water law regimes worldwide. II. The Development of International Water Law The body of law pertaining to international fresh waters counts among one of the oldest and most developed fields of international (environmental) law.5 The pri­ mary focus of this area of law laid for a long time on navigation—in fact, treaties concerning navigation count among the earliest agreements institutionalizing cooperation between states.6 In contrast the legal framework relating to the nonnavigational use of freshwater has developed only fairly recently, necessitated, in particular, by a growing worldwide demand for water originating in the industrial

2 L. Boisson de Chazournes, “The Role of Diplomatic Means of Solving Water Disputes: A Special Emphasis on Institutional Mechnaims”, in: International Bureau of the Permanent Court of Arbitration (ed.), Resolution of International Water Disputes, 2003, 91 (91). 3 Cf. J. W. Dellapenna, “The Evolution of Global Water Law”, in: J. W. Dellapenna / J. Gupta (eds), The Evolution of the Law and Politics of Water, 2009, 3 (9). 4 See P. H. Gleick, “The Changing Water Paradigm: A Look at Twenty-First Century Water Resources Development”, Water International 25 (2000), 127. 5 The allocation of transboundary water resources among states was one of the first prob­ lems addressed by international agreements, U. Beyerlin / T. Marauhn, International Environmental Law, 2011, 88, 90; in fact, it can be said that the history of international water treaties dates as far back as ca. 3100 BC, when the two Sumerian city-states of Umma and Lagash settled a water dispute along the Tigris river through the crafting of a treaty—this is often said to be the ‘earliest recorded treaty’, see S. C. McCaffrey, The Law of International Watercourses, 2007, 58 et seq.; L. A. Teclaf, “Fiat or Custom: The Checkered Development of International Water Law”, Natural Resources Journal 31 (1991), 45 (60). 6 In 1815 the riparians of the Rhine established the so-called ‘Central Commission for Navigation on the Rhine’, which is regarded as one of the world’s first international organizations, see K. Schmalenbach, “International Organizations or Institutions, Gen­ eral Aspects”, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2008 (online edition), para. 1, available at: ; K. Tiroch, “Rhine River”, in: ibid. (2011).



a survey of challenges and trends

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revolution and accompanied by growing economies and populations. Although different legal theories regarding states’ respective rights to the use of a water­ course started to develop in the late 19th century—with upstream states mostly advocating a theory of absolute territorial sovereignty while downstream states usually promoted the theory of absolute territorial integrity,7 it was not until well into the middle of the 20th century that this area of law gained shape. The developments were largely influenced by fundamental contributions of the ‘Insti­ tut de Droit International’,8 which had already taken a pioneering step to deter­ mine ‘International Regulations Regarding the Use of International Watercourses for Purposes other than Navigation’ in 1911,9 the International Law Association (ILA)10 and the UN International Law Commission (ILC).11 Important codifica­ tions include, inter alia, the 1966 ILA Helsinki Rules, further updated in 2004 by the Berlin Rules,12 the 1997 Convention on the Law of the Non-­Navigational Uses

   7 The theoretical basis of international water law can be based on four principle theories: absolute territorial sovereignty, absolute territorial integrity, limited territorial sover­ eignty and the community of interest theory. For an overview of the theories and their implications for the development of international water law see McCaffrey, supra note 5, at 111 et seq.    8 The ‘Institut de Droit International’ (IDI) was founded in 1873 in Belgium as an ‘exclu­ sively learned society’ composed of the world’s leading international public lawyers. It is devoted to promote the progress of international law, see arts 1, 3 Statute of the Institut de Droit International (10 September 1873, as amended), available at: .    9 See IDI, “Resolution on International Regulations Regarding the Use of International Watercourses for Purposes other than Navigation”, Annuaire de l’Institut de Droit Inter­ national 24 (1911), 365; this resolution was then followed, inter alia, by the IDI, “Resolu­ tion on the Use of International Non-maritime Waters”, Annuaire de l’Institut de Droit International 49 (1961), 381. 10 The International Law Association (ILA) was founded in Brussels in 1873 as an interna­ tional non-governmental organization with the objective to promote the study, clarifi­ cation and development of international law and to further international understanding and respect for international law, see art. 3 (1) Constitution of the International Law Association (adopted August 2004), in: ILA, Report of the Seventy-First Conference (Ber­ lin 2004), 2004, 42; see also T. Stein, “International Law Association (ILA)”, in: Wolfrum, supra note 6. For further information on the development of the legal rules and prin­ ciples of international water law, see e.g. A. Teclaff, “Fiat or Custom: The Checkered Development of International Water Law”, Nat. Resources J. 31 (1991), 45 et seq. 11   The ILC is a subsidiary organ of the UN which was established by the UN GA in 1947 for the promotion of the progressive development of international law and its codifica­ tion, see art. 1 Statute of the ILC, UN Doc. A/Res/174 (II) of 21 November 1947; see also P. S. Rao, “International Law Commission (ILC)”, Wolfrum, supra note 6. 12 ILA, “Helsinki Rules on the Uses of the Waters of International Rivers”, Report of the Fifty-Second Conference: Helsinki: 14–20 August 1966, 1967, 484 (Helsinki Rules); Berlin Rules, Committee on Water Resources, “Water Resources Law—Fourth Report”, in: ILA, Report of the Seventy-First Conference, Berlin 2004.

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of International ­Watercourses (UN Watercourse Convention)13 as well as on a regional level,14 the 1992 UNECE Convention on the Protections and Use of Trans­ boundary Watercourses and International Lakes (UNECE Helsinki Convention),15 the EU Water Framework Directive (WFD)16 and the Protocol on Shared Water­ courses in the South African Development Community.17 The UN Watercourse Convention is the most comprehensive, authoritative and universally applicable framework of international water law. It establishes basic principles and rules for interstate cooperation on the management, use and protection of international watercourses, which are designed to be comple­ mented in agreements that take account of the specific characteristics of a par­ ticular watercourse. Albeit the Convention is still not in force since it has not yet received the necessary 35 ratifications, the general principles enshrined therein however largely reflect customary international law.18 Another—more modern—instrument was adopted by the ILC in 2008. This is a set of draft articles that are tailored to the utilization of groundwater in international aquifers.19 These Draft Articles on Transboundary Aquifers were developed to fill gaps left by the UN Watercourse Convention, which basically covers groundwater only in its relation to surface water. The Draft Articles have

13 Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, not yet entered into force), ILM 36 (1997), 700 (UN Watercourse Convention). The Convention was largely developed by the UN ILC and is based on the ILC ‘Draft Articles on the Law of Non-Navigational Uses of International Watercourses and Commentaries’, YILC II (1994), para. 222, 105, available at: (ILC Draft Articles). 14 This is not an exhaustive list. 15 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (with Annexes) (done 17 March 1992, entered into force 6 October 1996), UNTS Vol. 1936 No. 33207 (UNECE Helsinki Convention). 16 Council and Parliament Directive 2000/60/EC of 23 October 2000 establishing a Frame­ work for Community Action in the Field of Water Policy, EU OJ L327/1 of 22 December 2000; for a more detailed analysis of the EU Water Framework Directive (WFD), see the contribution by U. Beyerlin in this book. 17 Revised Protocol on Shared Watercourses in the Southern African Development Com­ munity (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), 321v (SADC Revised Protocol). 18 McCaffrey, supra note 5, at 376; J. W. Dellapenna, “The Customary International Law of transboundary fresh waters”, Int. J. Global Environmental Issues 1 (2001), 264. Gener­ ally on the development of customary international law and the different sources of international law see R. Wolfrum, “Sources of International Law”, in: Wolfrum, supra note 6, 2011. 19 ‘The Law of Transboundary Aquifers’ (11 December 2008), UN GAOR 63th Session, Supl. 49, UN Doc. A/RES/63/124 (vol. 1) (2008), 575 (ILC Draft Articles on Trans­ boundary Aquifers).



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g­ enerally adapted the fundamental principles to the specific characteristics of groundwater, while also progressively developing them in substance.20 Both the UN Convention and the Draft Articles on Transboundary Aquifers are based on the premise of cooperation and codification of universal principles such as the principles of equitable utilization and the no-harm rule. They offer the framework for states to make appropriate arrangements through more specific agreements concerning the management of their shared waters. A great number of shared freshwater bodies are nowadays subject to some kind of treaty regime. In fact several hundred agreements concerning the sharing of a watercourse exist to date.21 They can take different forms, bilateral and multilateral—some are specifically applicable to a watercourse others relate to the management of all waters in a certain region. These treaties are a major driver for the progressive development of international water law. Often they develop and enhance the general principles and set new standards for modern water management systems. Nevertheless, there are still many areas which are not sufficiently addressed and require (further) attention of the international community. III. Trends in, and Challenges to the Development of International Law Pertaining to Freshwater Management There are a number of emerging trends in global water governance that have impacted/characterized and are still impacting/characterizing international water law. The following part seeks to address whether and how far international water law has heeded to these developments. This overview is not exhaustive, but seeks to provide a selection of current trends and challenges of international water law. Specific issues are addressed and analysed in greater detail in various contributions throughout this book.22 1. Human Rights Law Whereas human rights are designed to apply in relation between individuals and states, they are not without impact on inter-state relations.23 In the context of

20 K. Mechlem, “Groundwater Protection”, in: Wolfrum, supra note 6, 2010, at paras 16 et seq.; G. E. Eckstein “Commentary on the UN International Law Commission’s Draft Articles on Transboundary Aquifers”, Colo. J. Int’l Envtl. L. & Pol’y 18 (2007), 583. 21   The Oregon State University Transboundary Freshwater Treaties Database currently lists more than 400 international treaties, see . 22 See e.g. the contributions by P. Thielboerger, K. Mechlem and P. Wouters in this book. 23 This is, inter alia, already indicated by the possibility of ‘inter-state complaint mecha­ nisms’ in many human rights treaties, see generally G. Ulfstein, “Human Rights, State Complaints”, in: Wolfrum, 2011, supra note 6.

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international water law, current developments with regard to the prioritization of the utilization of water for the purpose of fulfilling basic human needs over other uses, are no doubt influenced by developments in human rights law, in particular the human right to water. In the case of a conflict of uses, the rules of the UN Watercoure Convention give special preference to the utilization of water to sus­ tain human life, including both drinking water and water required for production of food in order to prevent starvation.24 In particular, this latter word is of some significance. Accordingly, the production of crops for export, for example, does not enjoy priority. Slightly more progressive, but still using the same language, the ILC Draft Articles on Transboundary Aquifers require states to consider basic human needs before a conflict of uses occurs, namely within the process of determining an equitable and reasonable utilization.25 Yet both frameworks are still based on the long predominant paradigm that international water law basically does not recognize a hierarchy between different uses.26 Other regional agreements and instruments are more progressive. In fact, one can perceive a tendency in younger water sharing treaties, such as e.g. the Senegal River Char­ ter and the Niger River Charter,27 to even expressly refer to the right to water. Similarly the UNECE Protocol on Water and Health, an additional protocol to the UNECE Helsinki Convention, has the declared aim of providing access to drink­ ing water for everyone.28 There is no doubt a trend to award increasing priority to the requirements of basic human needs and securing individuals’ access to water in the management of transboundary waters is gaining prominence. The right to water is slowly making its way into modern international water law.29 When vital human needs are at risk, they should be prioritized over any other use. 2. Protection of the Watercourse as well as Related Ecosystems and the Minimization of Environmental Harm Next to the importance of developing different uses for the benefit of their economies and populations, it is essential for states to ensure the environmental 24 Commentary to art. 10 (2) ILC Draft Articles, supra note 13, at para. 4. 25 See art. 5 (2) ILC Draft Articles on Transboundary Aquifers, supra note 19; C. Leb, “Dig Deep: Conflict Prevention through Protection of Basic Water Rights: The Role of Inter­ national Water Law in Conflict Prevention”, paper presented at the International Confer­ ence “Transboundary Aquifers: Challenges and New Directions” (ISARM), UNESCO Paris, 6–8 December 2010, 4. 26 Cf. art. VI ILA Helsinki Rules, supra note 12; art. 10 (1) UN Watercourse Convention, supra note 13; McCaffrey, supra note 5, at 48. 27 See Preamble Charte des Eaux du Fleuve Sénégal (Senegal River Charter) (concluded 18 May 2002), available at : ; arts 1, 4, 9, 15 and preamble La Charte de L’eau du Basin Niger (Niger River Charter) (signed 30 April 2008), available at: < http://www.ecolex.org >. 28 UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, ILM 38 (1999), 1708. 29 Kirschner, supra note 1, at 485.



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integrity of a river and its related ecosystem. This is not only critical to sustain functions for livelihoods and development but also for the safety of water sup­ plies to fulfil basic human needs. The main focus of international water law for a long time, however, was on resource utilization and the balancing of differ­ ent uses, neglecting issues such as conservation, water quality and ecosystem protection.30 Together with the development of a better scientific understand­ ing of causes and effects of environmental problems and the interdependence of different ecosystems, states have increasingly recognized the importance of protecting the environment and waters from pollution and other forms of harm. This is demonstrated by their commitment to a growing number of treaties that adopt broad management approaches, reflecting ecosystem integrity,31 or by even concluding specific treaties with the primary concern to protect a shared fresh­ water body.32 Treaties are also increasingly including a wide range of environ­ mental standards such as, for example, defining minimum flow requirements, prevention of the introduction of alien species, or pollution control to ensure the ecological balance of a watercourse. This trend was clearly influenced by parallel developments in (international) environmental law and standard setting and can be perceived on a global, regional as well as sub-regional level.33 On a global level, this development was greatly advanced by the adoption of the UN Watercourse Convention, which devotes Part IV to the protection, preservation and manage­ ment of a watercourse and related ecosystems.34 It includes provisions not only on the prevention of transboundary pollution, but also, for example, on protec­ tion of the ecosystem itself below the threshold of transboundary harm.35 As can be surveyed from the case studies in this book, the degree of attention paid to this issue on a regional and sub-regional level varies significantly. Whereas issues of environmental protection do not yet play a big role in the Euphrates-Tigris region, other regions have developed quite progressive environmental provisions

30 See O. McIntyre, “The Emergence of an ‘Ecosystem Approach’ to the Protection of International Watercourses under International Law”, RECIEL 13 (2004), 1. 31   On the concept of ecosystem approach see ibid. 32 See e.g. 1972 Canada Great Lakes Water Quality Agreement (revised in 1978)—one of the first of its kind; Convention on Cooperation for the Protection and Sustainable Use of the Danube River (signed 29 June 1994, entered into force 22 October 1994) (1996) BGBl II 874; Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003) EU OJ L289/31 of 16 November 2000. On the Rhine also see K. Tiroch in this book. 33 S. C. McCaffrey, “International Watercourses, Environmental Protection”, in: Wolfrum, supra note 6. 34 McIntyre, supra note 30, at 2. 35 See in particular art. 23 UN Watercourse Convention, supra note 13; commentaries to arts 21, 22, 23 ILC Draft Articles, supra note 13.

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and standards such as under the auspices of the UNECE or EU, or, for example, among riparians of the Rhine and the Amazon.36 3. Sustainable Management Approach At latest since the 1992 Rio Summit, the concept of sustainable development37 has been the Leitmotiv pervading (global) debates relating to activities in international environmental and developmental relations.38 Regardless of the fact whether it can be considered an established (customary) legal principle,39 or rather a policy goal and political idea,40 it can be traced in a multitude of international environ­ mental treaties and instruments throughout the world, pertaining to a wide range of issues, including the sharing of international freshwater bodies.41 In Europe, article 2 (5) (c) UNECE Helsinki Convention uses the words of the World Commission on Environment and Development42 stipulating that “(w)ater resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs”. Moreover, both the Rhine and Danube basin states have declared sustainable development as their basis for cooperation.43 The same holds true in Asia where riparians of the Mekong have explicitly agreed to cooperate for the 36 See the respective contributions by U. Beyerlin, L. Castillo-Laborde and K. Tiroch in this book. 37 Sustainable development is generally understood as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, World Commission on Environment and Development, Our Common Future, 1987, 43. Specific elements of sustainable development, or rather “norms” that can be deduced from this concept (Beyerlin / Marauhn, supra note 5, at 82), include, inter alia, ‘the integration of environmental protection and economic development’, ‘the right to development’, ‘equity in the allocation of resources with due regard to intergen­ erational and intra-generational equity’, cf. in particular Principles 3–8 UN Conference on Environment and Development, Rio Declaration on Environment and Development (14 June 1992), UN Doc. A/CONF. 151/26/Rev 1 vol. I, 3; R. Wolfrum, “International Environmental Law”, in: F. L. Morrison / R. Wolfrum (eds), International, Regional and National Environmental Law, 200, 3 (20 et seq.). 38 Wolfrum, supra note 37, at 20. 39 In this sense: P. Sands, Principles of International Environmental Law, 2003, 252. See also Separate Opinion of Judge Weeramantry in the ICJ Case Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, ICJ Reports (1997), 7 et seq. (88) considering sustainable development “to be more than a mere concept, but a principle with normative value”. 40 P. Birnie / A. Boyle, International Law and the Environment, 2009, 125 et seq.; Beyerlin / Marauhn, supra note 5, at 81–82. 41   Birnie / Boyle, supra note 39, at 562. 42 See supra note 37. 43 Art. 2 (5) Convention on Cooperation for the Protection and Sustainable Use of the Danube River, supra note 32; art. 3 (1) Convention on the Protection of the Rhine, supra note 32.



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sustainable development of the Mekong basin,44 and in Central Asia, as pointed out by Dinara Ziganshina in this book, where the Aral Sea basin states have established the Interstate Commission for Sustainable Development that seeks to coordinate and manage sub-regional cooperation in the field of environment and sustainable development in the region.45 Likewise several water sharing agreements in Africa or the Americas have incorporated the principle of sus­ tainable development.46 On the global level, the UN Watercourse Convention includes an express refer­ ence to sustainability, making ‘sustainable use’ an objective which states should aim for in the equitable and reasonable utilization of a watercourse.47 It means that, water as a ‘renewable’ resource must be kept at the level that would provide the maximum sustainable yield.48 The ILC Draft Articles on Transboundary Aqui­ fers take on a different language with regard to acknowledging sustainable use. This is due to the fact that the principle of sustainable utilization does—sensu stricto—not apply in relation to ‘non-recharging’ aquifers, since any extraction of water in such an aquifer depletes the resource and eventually destroys the aquifer. Article 4 (b) of the Draft Articles thus speaks of the ‘maximisation of 44 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (done 5 April 1995, entered into force 5 April 1995), ILM 34 (1995), 864. 45 See the contribution by D. Ziganshina in this book. 46 See e.g. SADC Revised Protocol, supra note 17; Treaty on Amazonian Cooperation (signed 3 July 1978, entered into force 12 August 1980), UNTS Vol. 1202 No. 19194; ILM 17 (1978), 1045. On the latter treaty see L. Del Calstillo-Laborde in this book. 47 Art. 5 UN Watercourse Convention, supra note 13. It should be mentioned that this reference was not yet contained in the ILC Draft Articles, supra note 13, but was only later included in the UN Working Group of the GA Sixth Committee when revising the Draft Articles in light of the concept of sustainable development (cf. e.g. the Sum­ mary Records of the UN GA Sixth Committee which was charged by UN GA Resolution, UN Doc. A/Res/49/52 of 9 December UN Doc. A/CONF.48/14/Rev.1 1994 to convene as a working group to elaborate a framework convention on the basis of the ILC Draft Articles, available at: ). On this development see e.g. A. Tanzi / M. Arcari, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing, 2001, 112 et seq. It should be noted, that the concept of sustainable development is also reflected in other provisions of the UN Watercourse Convention, in particular Part IV on protection, preservation and management. 48 For marine living resources, art. 119 para. 1 (a), of UN Convention on the Law of the Sea ((adopted 10 December 1982, entered into force 16 November 1994), UNTS Vol. 1833 No. 31363) and almost all fishery agreements uphold the ‘maximum sustainable yield’ principle. The size of a particular fish stock is kept at the level where the maximum annual catch is possible year after year. Such a level could be determined scientifically by studying the population dynamics of the fish stock. With regard to the renewable water resource of watercourses, no such precise description of this reasonable, optimal or sustainable utilization principle exists. However, it can be presumed that extraction of water is permitted up to the amount of water recharge to the watercourse so that the total quantity of the water in the watercourse remains stable.

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l­ ong-term benefits’, rather than ‘sustainable use’ as a defining element of equi­ table and reasonable utilization.49 A central role in the sustainable management of water resources is attributed to the concept of integrated water resources management (IWRM), which has been proclaimed ‘the’ global water management standard for efficient, equi­ table and sustainable development and management.50 The concept is based on the premise that all water resources constitute an integrated unit and that their management and use is essentially interconnected with other development related issues. Effective management thus requires a holistic—considering all types of interrelated fresh water bodies—and cross-sectoral approach.51 IWRM is designed as a policy instrument to promote such an integrated, as opposed to the long dominating sectoral, approach to water management.52 It is closely related to the trend (in treaty practice) to focus more on environmental protection by adopting/focusing on a holistic hydrological approach.53 This connection is, for instance, reflected in the EU WFD, which is based on the so-called ‘drainage basin concept’ and is likewise seen as an instrument adopting at least large elements of the IWRM approach.54

49 Art. 4 ILC Draft Articles on Transboundary Aquifers, supra note 19. Moreover, the con­ cept is also reflected or even explicitly mentioned in other provisions such as e.g. art. 7. In relation to non-renewable resources the concept merely takes a different emphasis by attempting to stretch the resource requiring its rational use, Wolfrum, supra note 37, at 24. 50 A. D. Tarlock, “Four Challenges for International Water Law”, Tul. Envtl. L.J. 23 (2009), 369 (404); it was, for example, endorsed in Chapter 18 Agenda 21, UN Conference on Environment and Development, Agenda 21 (14 June 1992), UN Doc. A/CONF. 151/26/Rev 1 vol. I, 9 and by the Commission on Sustainable Development, “Report of the Expert Group Meeting on Strategic Approaches to Freshwater Management”, Background Paper adopted at the Expert Group Meeting 27–30 January 1998, Harare, Zimbabwe. 51   Cf. Chapter 18 Agenda 21, supra note 50. See also A. K. Biswas, “Integrated Water Resources Management: A Reassessment”, Water International 29 (2004), 248 (248), who stresses the importance of a cross-sectoral approach to water management, but also questions the practical feasibility of effectively implementing IWRM. 52 Governments clearly expressed their frustration with regard to the sectoral approach in Chapter 18 of Agenda 21, supra note 50, where it reads that “the fragmentation of responsibilities for water resources development among sectoral agencies is proving (. . .) to be an ever greater impediment to promoting integrated water management” (para. 18.6). 53 Cf. e.g. Principle No. 1 of the Dublin Statement on Water and Sustainable Development (31 January 1992), available at: . 54 See e.g. S. Richter et al., “The Water Framework Directive as an approach for Integrated Water Resources Management: results from the experiences in Germany on implemen­ tation, and future perspectives”, Environ. Earth Sci. 69 (2013), 719; M. Mizanur Rahaman et al., “EU Water Framework Directive vs. Integrated Water Resources Management: The Seven Mismatches”, Water Resources Development 20 (2004), 565.



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4. Groundwater As has been pointed out, international law has only recently taken account of groundwater. Freshwater law has thus developed somewhat on two tracks. While surface water has been dealt with in numerous international agreements and other instruments, groundwater is, if at all, largely included only nominally in the scope of said instruments.55 The UN Watercourse Convention concentrates on surface water, covering groundwater only to a limited extent. It applies to international watercourses, which are defined as a “system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus” (article 2 (a)). A watercourse is of an international nature if parts of it are situated in different states. The requirement of a “system of surface waters and ground waters” excludes two types of aquifers: namely non-recharging ones such as parts of the Nubian sandstone aquifers system, one of the largest aquifer systems in the world, and recharging ones that are not linked to a body of surface water such as for example the mountain aquifer underlying Israel and the West Bank, which is recharged solely by precipitation in the highlands of the Judean Mountains.56 As mentioned above, to fill the gap, the ILC developed Draft Articles, adapting the fundamental principles to the specific characteristics of groundwater, while also progressively developing them in substance. The Draft Articles on Trans­ boundary Aquifers cannot yet be considered as binding international law and in contrast to the UN Watercourse Convention, it is more than doubtful whether their principles may be considered to be part of international customary law.57

55 Groundwater is mainly only included to the extent that it is related to surface water or is part of a system of surface water and groundwater. Typical examples for such treat­ ment are the UN Watercourse Convention, supra note 13, or the SADC Revised Protocol, supra note 17. Only very few treaties and other legal instruments address groundwater or contain provisions focusing on groundwater. For legal instruments that address groundwater, see S. Burchi / K. Mechlem (eds), Groundwater in International Law: Com­ pilation of Treaties and Other Legal Instruments, 2004. On international groundwater law in general, see K. Mechlem, “International Groundwater Law: Towards Closing the Gaps?”, Yearbook of International Environmental Law 14 (2003), 47, and in relation to the Euphrates-Tigris region see K. Mechlem in this book. 56 The Nubian Sandstone Aquifer is shared by Chad, Egypt, Libya and Sudan, see UNESCO, Atlas of Transboundary Aquifers, 248, 276. On the mountain aquifer shared by Israel and the Westbank, see Y. Harpaz et al., “Overview of the Mountain Aquifer: A Shared Israeli-Palestinian Resource”, in: E. Feitelson / M. Haddad, Management of Shared Groundwater Resources: The Israeli-Palestinian Case with an International Perspective, 2001, 43 et seq. 57 Works of the ILC have the nature of recommendation and are thus, with the exception of codified rules of customary international law, not binding on states, see P. S. Rao, “International Law Commission (ILC)”, in: Wolfrum, supra note 6.

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It should be noted that not all international water law instruments follow such a two track approach. For example, the ILA Berlin Rules, stipulate regulations for both surface and groundwater, or rather “all waters, as appropriate”.58 On a regional level the UNECE Helsinki Convention as well as the EU WFD apply equally to surface and groundwater. Another regional instrument which should be mentioned is the Treaty of Peace Between the State of Israel and the Hash­ emite Kingdom of Jordan of 1994 which, inter alia, refers to the utilization of the Jordan and the Yarmouk river as well as to Araba groundwater. Article 6 of said treaty sets forth general principles, including, inter alia, commitments not to harm each others water resources, to prevent pollution and to develop existing water resources together.59 5. Public Participation In the management of waters, States shall assure that persons (. . .) likely to be affected by water management decisions are able to participate, directly or indirectly, in processes by which those decisions are made and have a reasonable opportunity to express their views on programs, plans, projects, or activities relating to waters.60

Article 18 (1) of the ILA Berlin Rules is an ambitious and progressive expression of the right of the public to participate in environmental decision-making, clearly stating that the right to participation must apply to water related management and decision-making processes.61 At the latest since the 1992 Rio Summit and the proclamation of the Rio Declaration on Environment and Development62 the issue of public participation in environmental matters has been coining respective legal discourse, with implications both on the national and international level. Public participation is increasingly becoming an issue in environmental management. Several multilateral international and regional agreements from various fields of international environmental law include respective provisions on public partici­ pation and related issues, such as access to information and access to justice in environmental matters.63 Currently the most far-reaching treaty to develop legal

58 Art. 1 (1) ILA Berlin Rules, supra note 12. 59 On the legal regime of the Jordan river see M. Haddad in this book. 60 Art. 18 (1) ILA Berlin Rules, supra note 12. 61   Commentary to art. 18 ILA Berlin Rules, supra note 12, at para. 24. 62 See in particular Principle 10 Rio Declaration on Environment and Development, supra note 37. See also Principle No. 2 Dublin Statement on Water, supra note 53. 63 See, inter alia, the following instruments which promote public participation (albeit in part set out very general terms) arts 4 (1) (i), 6 (1) (iii), 7 (6) UN Framework Convention on Climate Change with Annexes (adopted 9 May 1992, entered into force 21 March 1994) UNTS Vol. 1771 No. 30822; art. 14 (1) (a) Convention on Biological Diversity (con­ cluded 5 June 1992, entered into force 29 December 1993) UNTS Vol. 1760 No. 30619; e.g. arts 3 (a), 5 (d), 9 (1), 19, 21, 22 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (opened for signature 14 October 1994, entered into force 26 December 1996) UNTS



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criteria and standards is the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (also known as Aarhus Convention), which explicitly obliges states to promote the principles of the Convention in international decision-making.64 International water law has only relatively recently responded to this trend. Neither the UN Watercourse Convention nor the Draft Articles on Transbound­ ary Aquifers express a right of public participation,65 and—with exception of the aforementioned ILA Berlin Rules—it is still only very rarely found in other international legal instruments or watercourse agreements. Nevertheless, there is, not surprisingly, some clear regional support for participatory rights in managing water resources within the UNECE and EU region. As discussed by Ulrich Bey­ erlin in his contribution, the WFD adopts a participatory management approach with regard to the adoption of river basin management plans, and, as pointed out by Katrin Tiroch in her case study of the Rhine, the Rhine River Commission has granted observer status to several NGOs in the ICPR framework. The case is similar in the Danube basin.66 6. Adaption to Climate Change Climate change poses a challenge for law and policy makers worldwide—the water sector is no exception. Although there might still be uncertainty with regard to the precise impacts and consequences of climate change, the hydrologi­ cal cycle is clearly affected by changes in atmospheric temperature. According to the Intergovernmental Panel on Climate Change, associated impacts of climate change on the water cycle are displayed in: changing precipitation patterns, intensity and extremes; widespread melting of snow and ice; increasing atmospheric water vapor; increasing evaporation; and changes in soil moisture and runoff.67

Vol. 1954 No. 33480. On related issues such as access to information and/or access to justice in environmental matters see e.g. arts 8, 11 (3), 16 UNECE Helsinki Convention, supra note 15. 64 Art. 3 (7) UNECE Convention on Access to Information, Public Participation in ­Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001), UNTS Vol. 2161 No. 37770 (Aarhus Conven­ tion); J. Ebbesson, “Public Participation in Environmental Matters”, in: Wolfrum, supra note 6, at paras 3, 5. 65 Art. 5 (2) UN Watercourse Convention, supra note 13, refers to ‘participation’ but only in the context of ‘equal participation’ of states in the use, protection and development of shared watercourse. 66 See art. 14 WFD, supra note 16; art. 14 (2) Convention on the Protection of the Rhine, supra note 32; art. 18 (6) Convention on Cooperation for the Protection and Sustainable Use of the Danube River, supra note 32, as well as respective contributions in this book. 67 B. C. Bates et al. (eds), Climate Change and Water—Technical Paper of the Intergovern­ mental Panel on Climate Change, 2008, 15.

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The changes are significantly affecting freshwater systems worldwide.68 Impacts are being felt very differently—some regions are, for example, experiencing extreme floods while others are struggling with severe droughts. Next to increas­ ing strain from non-climatic factors (such as, inter alia, population growth and pollution) these developments will further amplify the strain on the world’s fresh­ water resources, not to mention the social and economic impacts.69 In order for (international) water law to work under a changing climate it needs to be able to adapt to changing circumstances. This calls for flexible legal rules that support cooperative responses/adaption strategies.70 Although the UN Watercourse Convention does not expressly address the issue of climate change and its potential impacts,71 it is—as a framework convention—designed to be applied and adapted to a range of different circumstances by promoting flex­ ible and general rules as well as mechanisms that facilitate cooperation among states to develop more specific sharing regimes.72 Conversely, many states have in their specific water sharing agreements established rather rigid allocation regimes with fixed water sharing quota, that frequently do not anticipate longterm flow variability.73 Whereas agreement on rigid quotas through way of guar­ anteeing a fixed flow, may be a means to foster trust among co-riparians and to keep relations stable, it can just as easily lead to new tensions.74 This was, for example, the case in the Euphrates and Tigris region, where an agreement over a fixed yearly average flow of Euphrates waters sparked tensions between Syria and

68 Ibid., 76–113. 69 The Intergovernmental Panel on Climate Change predicts that changes in water quan­ tity and quality due to climate change are expected to affect food availability, stability, access and utilization, see ibid., 53–75. 70 Tarlock, supra note 49, at 383; G. Goldmann, “Adapting to Climate Change: A Study of International Rivers and their Legal Arrangements”, EcologyLQ 17 (1990), 741; S. C. McCaf­ frey, “The need for flexibility in freshwater treaty regimes”, Natural Resources Forum 27 (2003), 156. 71   Yet, the UN Watercourse Conventions mentions ‘climate’ as a factor to be considered when determining an equitable and reasonable use, cf. art. 6 UN Watercourse Conven­ tions, supra note 13. 72 See e.g. ibid. arts 3, 5, 7, 8, 24. This statement can also be made in relation to the rules customary international water law. 73 See e.g. Goldmann, supra note 70, analyzing the agreements concerning the Nile, Ganges and Colorado river; for the Euphrates and Tigris see Kirschner / Tiroch in this book; see also I. Fischhendler, “Legal and institutional adaptation to climate uncertainty: a study of international rivers”, Water Policy 6 (2004), 281; Tarlock, supra note 49, at 384. 74 Goldmann lists the following reasons for this tendency to agree on fixed allocation: (1) governments are more willing to enter into agreements that provide for certain terms, (2) it is easier to monitor compliance of respective treaties and (3) they provide a guarantee of minimum flow to downstream states, Goldmann, supra note 70, at 783 et seq.



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Turkey, when—as discussed by Nicolas Bremer in this book—due to the filling of major upstream dams, Turkey experienced difficulties in supplying Syria with the guaranteed amounts.75 While the difficulties were not (directly) related to climate change but concerned the filling of a very large dam, these events dem­ onstrate the conflict potential of such rigid allocations schemes as opposed to for example a proportional allocation of water. Yet the challenge remains more com­ plex and is not just dealt with by finding a flexible allocation formula—flexibility requires a high degree of (continuing) cooperation.76 Governments need to focus on developing and strengthening mechanisms that enable the implementation of flexible treaties and through which adaption can take place, a role which can, inter alia, be played by joint management institutions.77 Moreover, states need to develop common strategies on how to respond to extreme conditions such as severe floods or droughts. Several international water law instruments and trea­ ties provide guidance on this.78 IV. Outlook While many of the challenges surveyed above are not new and the trends, dis­ playing the international community’s reaction have been apparent for some time now,79 there is prospect for issues to gain a new momentum. The year 2013 has not only been proclaimed the UN Year of International Water Cooperation (UN GA Resolution 65/154), aimed at raising awareness on the potential for cooperation and its challenges,80 but is also marked by two other noteworthy (legal) devel­ opments related to transboundary water cooperation. This is firstly the ‘global opening’ of the UNECE Helsinki Convention in February of this year. Through the

75 Para. 6 Protocol on Matters Pertaining to Economic Cooperation between the Syrian Arab Republic and Turkey (signed and entered into force 17 July 1987), UNTS Vol. 1724 No. 30069. 76 McCaffrey, supra note 70, at 159. 77 See Goldmann, supra note 70, at 801; A. Drieschova et al., “Governance Mechanisms to Address Flow Variability in Water Treaties”, Global Environmental Change 18 (2008), 285; McCaffrey, supra note 70, discussing different ways of how to build flexibility into treaty regimes. 78 See, inter alia, art. 27 UN Watercourse Convention, supra note 13; chapter VII ILA Ber­ lin Rules, supra note 12; art. 14 UNECE Helsinki Convention, supra note 15; art. 4 (5) SADC Protocol, supra note 17; art. 17 ILC Draft Articles on Transboundary Aquifers, supra note 19. 79 It should however be noted that, there are still large regional disparities with regard to the level of government reaction. 80 See UN Doc. A/RES/65/154 of 11 February 2011, see also official website at: .

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entry into force of its amendment adopted in 2003,81 it is now open for accession to all UN Members States. Whereas the amendment’s text particu­larly encourages states bordering the ECE region to accede to the Convention, several states that do not share borders, or rather waters, with UNECE states have also declared their intention to accede—including the Euphrates-Tigris riparian Iraq.82 This would make the Helsinki Convention the first treaty in force designed to uni­ versally regulate the non-navigational utilization of shared water resources. The second development concerns the recent trend in ratification of the UN Water­ course Convention—with 12 accessions alone in the last three years—it is now counts 30 parties.83 If this trend continues, it looks as if its entry into force is also in close prospect.84 While these developments create new challenges, requiring governments, for example, to look into questions of treaty law related to the com­ patibility and complementarities of the two conventions, they equally provide new chances for the development of international water law.85 As well as send­ ing a clear political message that the management of shared freshwaters requires cooperation and joint efforts it will in many ways supplement and strengthen the existing legal architecture with regard to the management of freshwater.86 Several existing sharing agreements are extremely ill-equipped to deal with the increasing global challenges related to water management. Moreover, the major­ ity of river basins worldwide are not even subject to any agreement adequately regulating their use and protection.87 A stable global framework might trigger

81   In November 2003, the Parties to the UNECE Helsinki Convention, supra note 15, adopted amendments to arts 25 and 26 of the Convention by decision III/1, see UN Doc. ECE/MP.WAT/14 of 28 November 2003. 82 See UNECE Press Release “United Nations Secretary-General encourages countries to join UNECE Water Convention as it becomes global” of 29 November 2012, available at: . 83 On 20 February 2013, Niger became the 30th Party to the UN Watercourses Con­ vention, supra note 13. For current status of parties to the Convention see . 84 The Convention requires 35 ratifications for its entry into force, art. 36 UN Watercourse Convention, supra note 13. 85 See in particular A. Tanzi, “The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses”, Report of the UNECE Task Force on Legal and Administrative Aspects, 2000. 86 A. Rieu-Clarke, “Why should we care if the UN Watercourse Conventions enters into force? Part II”, post on International Water Law Project Blog, 22 July 2012, available at: . 87 “Cooperative management frameworks exist for only about 40 % of the world’s interna­ tional watercourses (. . .)”, moreover most are only partially covered, with about 80 %



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the adoption of more specific agreements on a regional and basin level. Finally, the entry into force will also enable synergies to develop between the freshwater conventions and other multilateral environmental agreements, which will facili­ tate the implementation of an integrated approach to water management.88 It will thus be exciting to observe the impact these events will have on the further development and consolidation of international law with regard to the sharing of international freshwaters.

of agreements involving only two parties, F. Loures et al., WWF, All You Need To Know About the UN Watercourses Convention, 2009, available at: . 88 Rieu-Clarke, supra note 86.

Chapter Two

International Groundwater Law in the Euphrates and Tigris Region Kerstin Mechlem

I. Introduction The difficulties surrounding the use of the Euphrates and Tigris rivers are wellknown and have been discussed widely, including with regard to rules of international water law. Far less attention has been paid to transboundary aquifers shared by the Euphrates and Tigris basin states, the three main ones being Iraq, Syria and Turkey, with Iran, Jordan and Saudi Arabia playing a more marginal role. With surface water demand increasingly outstripping availability and pressure growing on groundwater this situation might, however, change sooner or later and, as far as transboundary aquifers are concerned, international groundwater law might begin to play a bigger role in the water negotiations of these countries. Groundwater is far-and-away the largest source of freshwater in the world. Longstanding hydrological research and investigation of the global water cycle has demonstrated that 99 % of all accessible fresh water on the planet is found in aquifers.1 Groundwater provides about 50 % of the current potable water supplies; in some countries it can be more than 90 %.2 It is essential to agriculture and industry, sustains the baseflow of rivers and lakes and maintains the viability of many other ecosystems, including wetlands. Aquifer systems constitute the predominant reservoir and strategic reserve of freshwater that can be drawn upon in cases of drought. Over the last decades aquifers have increasingly been prone to pollution, which is highly problematic as the capacity of aquifers to recover is often limited. Also the rate at which global groundwater stocks are depleted has more than doubled between 1960 and 2000, fuelled by the advent of

1   UNESCO, Atlas of Transboundary Aquifers, 2009, 16. 2 See UNECE Task Force on Monitoring and Assessment, Inventory of Transboundary Groundwaters, 1999, 21.

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the diesel-powered pump since the 1960s and uncontrolled and illegal pumping in many parts of the world.3 In contrast to international river basins whose characteristics are usually wellknown, much information is still to be discovered with respect to transboundary aquifers. It was only in 2009 that UNESCO published a first world inventory of transboundary aquifers in which 273 shared aquifers were identified.4 Since then the International Groundwater Resources Assessment Centre (IGRAC) jointly with UNESCO has mapped the state of information presently available on the occurrence and extent of transboundary aquifers worldwide, including those shared by Iraq, Syria and Turkey.5 Whereas for 2009, 380 aquifers were listed, the latest studies count 445 transboundary aquifers and groundwater basins in the world.6 While the scientific knowledge about transboundary aquifers is growing at a fast pace, regulatory approaches or joint management attempts remain few and far between. Only a handful of transboundary aquifer agreements of varying types and natures have been concluded, i.e. for the Genevese Aquifer, the Nubian Sandstone Aquifer System, the Northwestern Aquifer System (also known under its French Acronym SASS), the Iullemeden Aquifer System, the Guaraní and, reportedly, the Disi Aquifer.7

3 Y. Wada / L. P. H. van Beek et al., “Global Depletion of Groundwater Resources”, Geo­ phys. Res. Lett. 37 (2010), 1. 4 UNESCO, supra note 1. 5 IGRAC is a joint initiative of UNESCO and World Meteorological Organization. 6 Available at: . 7 Convention relative à la protection, à l’utilisation, à la réalimentation et au suivi de la Nappe Souterraine Franco-Suisse du Genevois, entre la Communauté d’Agglomération de la Région Annemassienne, la Communauté de Communes du Genevois, la Com­ munauté de Viry-République et Canton de Genève (signed 18 December 2007, entered into force 1 January 2008), available at: ; preceded by Arrangement relatif à la protection, à l’utilisation et à la réalimentation de la nappe souterraine francosuisse du Genevois, Le Conseil d’Etat de la République et Canton de Genève-Préfet de Haute-Savoie (signed 9 June 1977, entered into force 1 January 1978), original text and unofficial English translation available at: ); Constitution of the Joint Authority for the Study and Development of the Nubian Sandstone Aquifer Waters (1992), reproduced in , Annex 7; Agreement No. 1—Terms of Reference for the Monitoring and Exchange of Groundwater Information of the Nubian Sandstone Aquifer System (signed 5 October 2000), and Agreement No. 2—Terms of Reference for Monitoring and Data Sharing (signed 5 October 2000), reprinted in: S. Burchi / K. Mechlem (eds), Ground­ water in International Law—Compilation of Treaties and Other Legal Instruments, 2005, 4–6; Establishment of a Consultation Mechanism for the Northwestern Sahara Aqui­ fer System (based on minutes endorsed in 2003), reprinted in: ibid., 6; Memorandum



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For the aquifers shared by Iraq, Syria and Turkey no systematic classification, identification and delineation has been completed to date. Also, for none of them has cooperation begun to be framed in legal terms. As relations are hence guided by general rules of international groundwater law this contribution will, after an overview of domestic and transboundary groundwater resources in the three countries (section II.), discuss relevant regional legal instruments (section III. 1.–2.) and finally analyze the UN ILC’s Draft Articles on the Law of Transboundary Aquifers, the most authoritative document on principles of international groundwater law (section III. 3.).8 II. Domestic and Transboundary Groundwater Resources in Iraq, Syria and Turkey The main supply of freshwater in Iraq, Syria and Turkey is provided by surface water bodies.9 While Turkey in particular and also Iraq have abundant freshwater resources compared to other Middle Eastern countries, Syria’s water situation is more critical and requires careful management.10 In all three countries the demand for groundwater is rapidly increasing, especially in areas with lack or extreme shortage of surface water or where groundwater-fed irrigated agriculture is expanding. In the interstate relations between these countries groundwater resources play only a marginal role to date despite the fact that transboundary effects of aquifer management can already be noticed in some areas. For instance, groundwater pollution caused by pesticide and herbicide use in Anatolia travels across the Turkish-Syrian border and is felt in Syria.11

of Understanding relating to the Setting up of a Consultative Mechanism [for the Iul­ lemeden Aquifer] (signed in 2009), on file with author; Agreement on the Guaraní Aquifer (signed 2 august 2010, not yet entered into force), available at: ; Memorandum of Understanding between Saudi Arabia and Jordan on the Disi Aquifer (signed in 2008), mentioned in: UN Economic and Social Commission for Western Asia (ESCWA), ESCWA Water Development Report 4: National Capacities for the Management of Shared Water Resources in ESCWA Member Countries, 2012, 59.    8 UN Doc. A/RES/63/124 of 11 December 2008, Annex.    9 Strategic Foresight Group, The Blue Peace, 2011, XVI, available at: . 10 Ibid., 18. 11   I bid., 30.

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1. Iraq Iraq’s exploitable groundwater resources are approximately 1.2–5 km3 per annum.12 Fourteen main aquifers/aquifer groups have been identified.13 Groundwater tables have been falling, inter alia, due to the effects of climate change.14 Precise hydrogeological information is still scarce. To address this problem UNESCO launched a project on “[a]n Advanced Hydrogeological Survey for Sustainable Groundwater Development in Iraq” in 2010. The objective is to gather sufficient information to enable the country to manage its aquifers in a controlled and sustainable manner by collecting, processing and managing hydrogeological data.15 2. Turkey Hydrogeological surveys carried out in 342 plains in order to assess groundwater potential, estimated the ‘reliable groundwater reserves’ or ‘exploitable ­groundwater’ at 14 km3 per annum.16 Although Turkey is endowed with prodigious amounts of water in relation to its land area and population, research provides evidence of falling groundwater tables. In recent years the average decrease in groundwater level was 2.5 cm per year and the maximum decrease occurred in May 2007 with a value of about 7.9 cm.17 A substantial amount of precipitation which feeds the Euphrates and its tributaries in Syria falls over Turkey and enters the rivers directly as runoff or as groundwater discharge.18 Groundwater flows from Turkey to other countries are estimated at 11 km3 per annum, of which 1.2 km3 per annum flow to the Ras-alAin (Khabour) springs feeding the Khabour river, situated in the Syria.19 Pumping in Turkey is blamed by some for diminished flow in the Ras-al-Ain springs at the head of the Syrian Khabour.20 12   I bid., 111. 13   S. Z. Jassim / J. C. Goff, Geology of Iraq, 2006, 254. 14   Strategic Foresight Group, supra note 9, at 14. 15   See ; . 16   FAO, “Aquastat Report Turkey”, Aquastat Water Reports 34 (2009), available at: . 17   S. Sarachi / S. Moghim et al., “Decreasing Trend of Groundwater in Turkey”, Ameri­ can Geophysical Union, Fall Meeting 2010, available at: . 18   P. Beaumont, “Restructuring of Water Usage in the Tigris-Euphrates Basin: The Impact of Modern Water Management Policies”, in: J. Albert / M. Bernhardsson et al. (eds), Transformations of Middle Eastern Natural Environments: Legacies and Lessons (Yale Bulletin Series No. 103), 1998, 168 (170), available at: . 19   F AO, supra note 16. 20 B. Zaitchik et al., “Spatial Analysis of Agricultural Land Use Changes in the Khar­ bour River Basin of Northeastern Syria”, Pecora 15/Land Satellite Information IV/



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3. Syria In Syria, average annual groundwater resources in total is 5.6 km3.21 Groundwater use, particularly for irrigation, has boomed over the last two decades. Groundwater constitutes less than 7 % of total freshwater resources but about 60 % of all irrigated area in Syria is currently irrigated by groundwater.22 Economic policies such as subsidized energy rates and supported prices for certain crops as well as widespread unlicensed and unmonitored pumping have resulted in severe overexploitation of groundwater resources across the country.23 In the region around the Khabour river, southernmost tributary to the Euphrates, near the north-eastern city of Hassakeh, vast areas, where farmers relied until the 1980s on rainfall to cultivate their crops, are now irrigated by groundwater and massive overpumping has led to the drying up of many springs, while most wells and shallow aquifers have been depleted. Groundwater extraction has lowered the water table in the Khabour, and it is believed that groundwater extraction for agriculture in the Syrian steppe is the primary reason that the Lower Khabour river has run dry every summer since 1999—a phenomenon previously unknown in recorded history.24 In addition, climate change has contributed to decreasing groundwater levels.25 4. Transboundary Aquifers Transboundary aquifers in the Euphrates and Tigris region have been comparably little studied and the information available remains fragmented and incomplete. The situation is further complicated by the fact that one and the same formation is sometimes called by different names in different sources. The Euphrates and the Tigris are fed by domestic groundwater resources, especially in their upper parts. There are also transboundary groundwater resources which overlap with the Euphrates-Tigris basin but which are not necessarily hydrologically linked to the latter. The latest IGRAC map lists only two aquifers shared by Iraq, Syria and Turkey. One aquifer, the Eocene/Helvetian aquifer with an extent of 9,700 km2 is shared by all three countries.26 The second aquifer, ISPRS Commission I/FIEOS 2002 Conference Proceedings, see . 21   Strategic Foresight Group, supra note 9, at 102. 22 M. Salman, “The Eupharates and Tigris, South Boundary Utilization and Views”, in: Bonn International Center for Conversion (BICC), Water, Development and Cooperation— Comparative Perspective: Euphrates—Tigris and Southern Africa, 2005, 140; Strategic Foresight Group, supra note 9, at 8. 23 Ibid. 24 Zaitchik et al., supra note 20. 25 Strategic Foresight Group, supra note 9, at 14. 26 International Groundwater Resources Assessment Centre (IGRAC), Transboundary Aqui­ fers of the World Map, 2012, available at: .

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the Paleogene Aquifer, is shared by Bahrein, Iraq, Jordan, Kuwait, Oman, Qatar, Saudia Arabia, Syria, the United Arab Emirates and Yemen and has an extent of approximately 2,097,700 km2.27 A forthcoming inventory of shared water resources in Western Asia, currently prepared by the German Federal Institute for Geosciences and Natural Resources (Bundesanstalt für Geowissenschaften und Rohstoffe—BGR) and the Economic and Social Commission for Western Asia (ESCWA),28 will list two transboundary aquifer systems, the Jezira Tertiary Limestone Aquifer System shared by Syria and Turkey and the Neogene Aquifer System (North-West), Upper and Lower Fars, with the Jezira Basin as its main formation, shared by Iraq and Syria.29 It will also cover the Tauros Zagros region, where numerous, often small-scale aquifers exist, some of which are transboundary (Iran, Iraq, Turkey).30 The main geological formations there are the Pila-Spi/ Bekhme and the Bai Hassan Formation.31 Quite a few small aquifers in East-West direction along the Turkey-Syria border are also reported. One of them is the Ceylanpinar/Ras al-Ain Aquifer (exact dimensions not known) shared by Turkey and Syria, which is linked with the Khabour river and thus connected to the Euphrates and Tigris basin.32 It extends as an unconfined karstic aquifer underneath Turkish territory and discharges as a flowing well (artesian well) in Syria in a small radius, compared to other aquifers, in the town Ras al-Ain with a high discharge rate.33 How this aquifer relates to the aquifers on the IGRAC map and in particular the Eocene-Helvtian Aquifer

This aquifer provides a good example of the lack of information on aquifers in the region. On the 2009 predecessor map this aquifer—then referred to as Upper Jezira/ Mesopotamia Aquifer—had not yet been delineated and had an estimated size of 100,000 km, i.e. 10 times the size of the now mapped aquifer. E-mail from L. Heinrich, IGRAC, to author (18 October 2012). 27 Ibid., L. Heinreich also writes, that on the 2012 map the size of this aquifer has been falsely indicated as 37,300 km² due to a mix up with another aquifer, the Paleogene Cretaceous Aquifer. 28 Bundesanstalt für Geowissenschaften und Rohstoffe (Federal Institute for Geosciences and Natural Resources—BGR), BGR / ESCWA Inventory of Shared Water Resources in Western Asia, forthcoming, expected for 2013, e-mail from A. Renck, BGR Project Coor­ dinator, ESCWA, to author (23 November 2012). Some chapters are already available at: . 29 BGR / ESCWA, Inventory of Shared Water Resources in Western Asia (information brochure, no date), available at: . 30 Ibid. 31   E-mail from A. Renck, BGR Project Coordinator, ESCWA, to author (27 November 2012). 32 M. Öztan / M. Axelrod, “Sustainable Transboundary Groundwater Management and Shifting Political Scenarios: the Ceylanpinar Aquifer and Turkey-Syria Relations”, Water International 26 (2011), 671. 33 E-mail from M. Öztan to author (21 November 2012).



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remains unclear. In the BGR/ESCWA inventory under preparation it seems that it will be covered in the Jezira Tertiary Limestone chapter.34 In sum, information on the existence, extent and characteristics of transboundary aquifers in this part of the world is incomplete. Yet the state of knowledge and in particular beginning cross-border effects of groundwater use are sufficient to show the relevance of international groundwater law. III. The International Groundwater Law Framework for Iraq, Syria and Turkey 1. The Bi- and Trilateral Level No agreements have been forged for any of the aquifers shared by Iraq, Syria and Turkey. Also, none of the water treaties concluded among the three states addresses groundwater issues. Protocol I Relative to the Regulation of the Waters of the Tigris and Euphrates and of their Tributaries to the 1946 Treaty of Friendship and Good Neighborly Relations between Iraq and Turkey deals with water development plans on the Euphrates and Tigris rivers in the interests of both parties.35 In 1980 a Joint Technical Committee on Regional Waters was established between Turkey and Iraq, which Syria joined in 1983. Its mandate was to study matters relating to regional waters and to produce a report. While it served as a platform for communication on water matters among the countries it ceased working in 1992 without having been able to fulfill its objectives.36 In the water chapter of the 1987 Protocol on Matters Pertaining to Economic Cooperation between Turkey and Syria, Turkey undertakes to release a yearly average of more than 500 m3/s of the Euphrates at the Turkish Syrian border but no mention is made of groundwater.37 Also the 1989 Joint Minutes concerning the provisional division of the waters of the Euphrates River between Iraq and Syria focuses on river water allocation but leaves out groundwater allocation and protection questions.38 In 2009 Syria and Turkey concluded a Memorandum of Understanding in the Field of Remediation of Water Quality which addresses in

34 E-mail from Renck, supra note 31. 35 1946 Treaty of Friendship and Neighbourly Relations between Iraq and Turkey, Proto­ col 1, (signed 29 March 1946, entered into force 10 May 1948), UNTS Vol. 37 No. 580. 36 The Joint Technical Committee later took up work again. See A. Kibaroglu, Building a Regime for the Waters of the Euphrates-Tigris River Basin, 2002, 259 and A. Kibaroglu, in this book. 37 Art. 6 of the 1987 Protocol on Matters Pertaining to Economic Cooperation between Syria and Turkey (signed and entered into force 17 July 1987), UNTS Vol. 1724 No. 30069. 38 Joint Minutes Concerning the Provisional Division of the Waters of the Euphrates River (Iraq-Syria) (signed 17 April 1989), available at: (unofficial Eng­ lish translation).

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general terms water quality without defining any further its scope of application.39 The same applies to a Syrian-Turkish Memorandum of Understanding in the Field of Efficient Utilization of Water Resources and Combating Drought concluded the same year40 and a 2009 Memorandum of Understanding between Iraq and Turkey on Water.41 To summarize, the existing bilateral instruments—trilateral ones have not been concluded—focus on surface water and do not regulate aquifers shared by Iraq, Syria and Turkey. 2. Regional Instruments a. EU and UNECE Instruments As an EU accession country, Turkey is in the process of transposing the Water Framework Directive (WFD) into its national law. The WFD provides for a detailed, encompassing and ambitious regime of quantity and quality protection of all waters—rivers, lakes, coastal waters, and groundwater, domestic and transboundary—and sets the parameters for the water policy of each Member State.42 The protection of groundwater has become a key concern and target in the EU context and the WFD and a daughter directive provide the most advanced legal regime for domestic and transboundary groundwater resources worldwide. Surface and groundwater have to achieve “good status” by 2015 (article 4 (1) (a) (ii) and (b) (ii)). ‘Good groundwater status’ is defined in terms of both quantity and chemical status. The WFD aims particularly at reducing the pollution of groundwater to a significant extent. From 2013 a daughter directive on groundwater quality will complement the WFD and replace an existing directive on groundwater.43

39 Memorandum of Understanding in the Field of Remediation of Water Quality between the Government of the Republic of Turkey and the Government of Syrian Arab Republic (signed 23 September 2009), unofficial English translation reproduced in: Max Planck Institute for Comparative Public Law and International Law, Compilation of International Treaties and Other Documents Relative to the Euphrates and Tigris, 2012, 44, available at: . 40 Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Efficient Utilization of Water Resources and Combating Drought (signed 23 September 2009), unofficial English translation reproduced in: ibid., 47. 41   Memorandum of Understanding between the Ministry of Environment and Forestry of the Republic of Turkey and the Ministry of Water Resources of the Republic of Iraq on Water (signed 15 October 2009), unofficial English translation reproduced in: ibid., 51. 42 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy, EU OJ L327/1 of 22 December 2000 (WFD). See also the contribution by U. Beyerlin in this book. 43 Directive 2006/118/EC of the European Parliament and of the Council of 12 Decem­ ber 2006 on the protection of groundwater against pollution and deterioration, EU OJ



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For aquifers that extend beyond the territory of the EU, the WFD obliges Member States to endeavour to establish appropriate coordination with non-member states with a view to achieving the objectives of the Directive.44 Upon becoming an EU member Turkey would thus be under an obligation to seek cooperative arrangements with Iraq and Syria with the aim of achieving good groundwater status as defined in the EU WFD. Another instrument of potential future influence for shaping the legal aspects of transboundary aquifer management among the Euphrates and Tigris states is the legal framework provided by the UNECE with respect to water resources, in particular the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Helsinki Convention).45 Turkey is a member of the UNECE but has ratified neither the Convention nor the 1999 Protocol to the Convention on Water and Health.46 Iraq and Syria are not UNECE members but could benefit from a 2003 amendment to the UNECE Helsinki Convention, which entered into force on 6 February 2013 and opened the Convention for accession to all UN Member States.47 In the future the UNECE Helsinki Convention could turn into a global multilateral legal framework for transboundary water cooperation and could govern the water relations in the region one day. With regard to their shared aquifers, it is of particular interest that the UNECE is currently developing model provisions on transboundary groundwaters to enhance the organization’s work on these resources.48 For groundwater monitoring the UNECE has already issued detailed Groundwater Monitoring Guidelines in 2000.49 b. The ESCWA Draft Legal Framework on Shared Waters The management of transboundary aquifers underlying Iraq and Syria could also be governed one day by an emerging legal framework for shared waters within

L372/19 of 27 December 2006; Council Directive 80/68/EEC of 17 December 1979 on the Protection of Groundwater against Pollution Caused by Certain Dangerous Sub­ stances, EC OJ L20/43 of 27 January 1980. 44 Art. 3 paras 1 and 5 WFD, supra note 42. 45 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (with Annexes) (done 17 March 1992, entered into force 6 October 1996), UNTS Vol. 1936 No. 33207 (UNECE Helsinki Convention). 46 UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted 17 June 1999, entered into force 4 August 2005), UNTS Vol. 2331 No. 33207. 47 UN Doc. ECE/MP.WAT/14 of 12 January 2004. For the status of ratification see . 48 Draft Model Provisions on Transboundary Groundwaters, UNECE Doc. LB/2012/INF.2 of 11 and 12 June 2012. 49 UNECE, Task Force on Monitoring and Assessment, 2000.

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the Arab Region. A consultative intergovernmental process to this effect is currently ongoing among ESCWA States.50 Iraq and Syria are ESCWA members; Turkey is outside ESCWA’s geographical scope. In July 2010, at its second session, the Arab Ministerial Water Council (AMWC), a ministerial council under the League of Arab States, passed a resolution calling for the preparation of a draft legal framework on shared waters—surface waters and groundwater, renewable waters and non-renewable ones—within the Arab region.51 To this end, the AMWC requested the League of Arab States Center for Water Studies and Arab Water Security and ESCWA to prepare a draft. At its third session (Cairo, June 2011) the AMWC focused on the political sensitivity of shared waters and particularly of shared surface water resources. Concerns over the latter resulted in a resolution to reorient the legal framework to focus only on shared groundwater resources.52 Currently, discussions are under way whether to also prepare a separate agreement on surface water resources or to introduce for reconsideration by AMWC the proposal for an integrated legal framework that includes both surface and groundwater resources.53 A third round of consultations will be organized prior to the deliberations that will take place at the next ministerial session of the AMWC in mid-2013.54 The idea behind the undertaking to draft a legal framework on shared waters within the Arab region was to develop a common regional vision and a legal basis with a focus on regional priorities as a step towards achieving water security in the Arab region. The legal framework is intended to set out the main principles upon which cooperation, management and allocation of shared water resources are to be based. Possibly a focus on water allocation could be among the regional priorities given the number of water-scarce countries in the region.55 This would stand in contrast, for instance, to the UNECE approach taken by water-rich European countries and its focus on environmental issues. If a legal framework is developed, an adequate institutional setup will be needed to operationalize it. It would be possible to use the existing institutional

50 A draft of the legal framework is reproduced in: ESCWA, supra note 7, at 76. 51   League of Arab States, “Report and Resolutions of the Second Session of the Arab Min­ isterial Water Council” (in Arabic), Cairo, 1–2 July 2010, cited in: ibid., 29. 52 League of Arab States, “Report and Resolutions of the Third Session of the Arab Min­ isterial Water Council” (in Arabic), Cairo, 15–16 June 2011, Resolution 20, cited in: ibid., 48. 53 Ibid., 48. See also Second Intergovernmental Consultative Meeting on the Draft Legal Framework for Shared Groundwater Resources in the Arab Region: Meeting Report, 2011, UN Doc. E/ESCWA/SDPD/2011/IC.2/3 of 12 November 2012. 54 See . 55 ESCWA Working Paper, “The Joint Management of Shared Water Resources within an Integrated Water Resources Management Context: Fostering a Legal Framework for the Arab Region”, UN Doc. E/ESCWA/SDPD/2011/WP.2 of 20 May 2011.



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structure at the regional level, particularly the AMWC and its subsidiary institutions, committees and secretariat. Another alternative would be the establishment of a new separate specialized technical secretariat to assist the AMWC in following up upon implementation.56 If the Arab states managed to adopt a legal instrument on shared surface and groundwaters it would be the first official approach dealing with all freshwater resources in one instrument by building both on the UN Convention on the Nonnavigational Uses of International Watercourses (UN Watercourse Convention) and the ILC’s Draft Articles on the Law of Transboundary Aquifers.57 It could address water resources in a comprehensive way in line with principles of integrated water resources management. Whatever the outcome of the process will be, it is, however, likely that it will address only Arab states. It will thus not apply to the Arab states’ relations with important non-Arab countries like Turkey or Iran or the upper riparians of the Nile. In sum, no regional legal framework is in place or emerging that covers all countries of the Euphrates and Tigris region. Whereas regional instruments that are geographically only partly applicable may still provide inspiration to interstate negotiation processes, recourse has to be taken to the global level to determine interstate rights and obligations. 3. The Global Level: The Draft Articles on the Law of Transboundary Aquifers of the International Law Commission a. Rules and Principles of International Groundwater Law The instrument that lays down most authoritatively the rights and obligations of states sharing an aquifer is the Draft Articles on the Law of Transboundary Aquifers.58 The Draft Articles were developed by the ILC between 2002 and 2008 and taken note of by the UN General Assembly.59 They complement the work of the ILC on the non-navigational uses of international watercourses which had already resulted in the 1997 UN Watercourse Convention (not yet in force).60 The Draft Articles are the last of a line of other non-binding legal instruments on transboundary groundwater resources, among them the UNECE Charter on

56 ESCWA, supra note 7, at 75. 57 UN Convention on the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, not yet entered into force), annexed to UN Doc. A/RES/51/229 of 8 July 1997 (UN Watercourse Convention); also reprinted in ILM 36 (1997), 700. For the Draft Articles see supra note 8. 58 See supra note 8. 59 Ibid. 60 Supra note 57. For a more detailed discussion of the Draft Articles see K. Mechlem, “Moving Ahead in Protecting Freshwater Resources: The ILC’s Draft Articles on Trans­ boundary Aquifers”, LJIL 22 (2009), 801.

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Groundwater Management,61 the Seoul and Berlin Rules of the International Law Association,62 the Bellagio Draft Agreement Concerning the Use of Transboundary Groundwater,63 a model treaty developed by a group scholars, and a resolution by the ILC on non-recharging (‘fossil’) aquifers adopted jointly with the finalization of the ILC’s work on transboundary watercourses.64 The Draft Articles fill a gap left by the drafters of the UN Watercourses Convention. Although the latter formally applies to most shared groundwater resources, namely those hydrologically linked to a transboundary river or lake, it is unsatisfactory with regard to the management and protection of groundwater resources. Its provisions exclude certain types of aquifers, most importantly non-recharging aquifers which are particularly important in arid regions.65 In addition, the Convention’s substantive provisions are exclusively geared towards surface water and do not address the specific management challenges posed by groundwater.66 The 19 Draft Articles on Transboundary Aquifers mirror the approach and structure of the UN Watercourse Convention in an attempt to create a coherent system of water law. Preceded by a preamble, they are organized into four parts: (I) Introduction, (II) General Principles, (III) Protection, Preservation and Management and (IV) Miscellaneous. They apply to the utilization of transboundary aquifers, other activities that have or are likely to have an impact on such aquifers and measures for protection, preservation and management. Among the central principles of the Draft Articles are the two cardinal principles of international water law, namely the principle of equitable and reasonable utilization and the obligation not to cause significant harm. They are framed in a way that pays specific attention to the particularities of groundwater management. For instance, article 4 on equitable and reasonable utilization requires states to establish comprehensive utilization plans and not to utilize a recharging aquifer system at a level that would prevent continuance of its effective 61   Charter on Groundwater Management, adopted by the UNECE at its forty-fourth ses­ sion by Decision E (44), UN Doc. E/ECE/1197 ECE/ENVWA/12 (1989). 62 International Law Associaton (ILA), Seoul Rules on International Groundwaters, in: ILA, Report of the Sixty-Second Conference, Seoul 1986, 251; ILA, Berlin Rules, Commit­ tee on Water Resources, “Water Resources Law—Fourth Report”, in: ILA, Report of the Seventy-First Conference, Berlin 2004. 63 Draft Agreement Concerning the Use of Transboundary Groundwaters, reprinted and commented in R. D. Hayton / A. E. Utton, “Transboundary Groundwaters: The Bellagio Draft Treaty”, Nat. Resources J. 29 (1989), 663. 64 Called by the ILC ‘confined’ transboundary aquifers. ILC “Resolution on Confined Transboundary Groundwater”, YILC II (1994), 135, para. 1. For the history of the devel­ opment of international groundwater law, see K. Mechlem, “Past, Present and Future of the International Law of Transboundary Aquifers”, ICLR 13 (2011), 209. 65 G. Eckstein, “A Hydrogeological Perspective of the Status of Ground Water Resources under the UN Watercourses Convention”, Colum. J. Envtl. L. 30 (2005), 525; K. Mechlem, “Interna­ tional Groundwater Law: Towards Closing the Gaps?”, Y. Intl. Env. L. 47 (2003), 54. 66 Mechlem, supra note 65, at 57–62.



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functioning. According to article 5 on the obligation not to cause significant harm states are under an obligation to take all appropriate measures to prevent the causing of significant harm to other aquifer states when utilizing a transboundary aquifer—an obligation parallel to article 7 of the UN Watercourse Convention. In addition, states shall take all appropriate measures to prevent the causing of significant harm to another aquifer state caused by activities other than utilization of a transboundary aquifer that are likely to have an impact upon that aquifer (article 5 (II)). The latter obligation is highly relevant as a range of land-based activities can result in significant transboundary harm to aquifers. Examples are the sealing off of recharge areas because of large-scale construction work, agricultural run-off resulting in non-point pollution or industrial activities causing point source pollution (e.g. leaking gas stations). None of these activities falls under ‘utilizing an aquifer’, nonetheless they can have disastrous effects on water quantity and quality. The principles of equitable utilization and no significant harm are complemented by an obligation to cooperate, which is laid down both in general terms as well as in a specific cooperation obligation to regularly exchange data and information (article 7). States are also encouraged to establish joint mechanisms (article 7 (2), see also article 14) and to enter into bilateral or regional agreements and arrangements (article 9). Where knowledge about the nature and extent of a transboundary aquifer is inadequate, they shall employ their best efforts to collect and generate more complete data and information (article 8 (2)). This obligation is highly relevant because knowledge of the characteristics of most aquifers continues to be incomplete as the cases of Iraq, Syria and Turkey demonstrate. The Draft Articles therefore emphasize with good reason the importance of generating and exchanging data and information about a shared resource. Whereas the way the scope of the Draft Articles is framed signifies important progress in the protection of transboundary water resources, part II on General Principles sends out a more ambiguous message. The first general principle listed by the Draft Articles is the principle of sovereignty. According to article 3 of the Draft Articles states have sovereignty over the portion of a transboundary aquifer located within their territory. Although article 3 continues that this sovereignty has to be exercised in accordance with international law, the emphasis on sovereignty in a freshwater law instrument is unusual and has been criticized widely as a step backwards in international water law and as having a flavor of the infamous Harmon Doctrine.67 Concepts of sovereignty over transboundary groundwater resources contrast with the ‘community of interest’ in shared water resources approach developed by the Permanent Court of International Justice in the River Oder case and reaffirmed by the International Court of Justice in

67 For a detailed discussion of this issue see S. C. McCaffrey, “The International Law Com­ mission Adopts Draft Articles on Transboundary Aquifers”, AJIL 103 (2009), 272 (289).

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the Gabčíkovo-Nagymaros Project case.68 The fact that the Draft Articles refer to aquifers, i.e. the rock formation and the water contained in it (groundwater) and not to groundwater alone, the invisible nature of groundwater and its sometimes very slow flow patterns might have influenced the inclusion of the reference to sovereignty. The first aquifer treaty concluded after the finalization of the work on the Draft Articles, the Agreement on the Guaraní Aquifer, equally emphasizes sovereignty. The Draft Articles might in effect have set a precedent that is to be viewed very critically.69 The relatively short part III of the Draft Articles on protection, preservation and management issues deals with the protection and preservation of ecosystems; recharge and discharge zones; the prevention, reduction and control of pollution; monitoring; management and planned activities. In particular, its provision on pollution leaves much to be desired in terms of detail given the scale and severity of groundwater pollution, which is—in contrast to the pollution of rivers and lakes—often de facto irreversible.70 Whereas the UN Watercourse Convention requires sustainable use (article 5) of a transboundary watercourse and thus also of its related groundwater, such an obligation is at best implicit in the obligation not to utilize a recharging aquifer system at a level that would prevent continuance of its effective functioning (article 4). In other legal instruments groundwater quantity concerns have found a variety of clearer and stronger expressions ranging from limitations to abstraction,71 which are sometimes limited to the amount of natural or artificial recharge,72 to obligations to notify

68 Territorial Jurisdiction of the International Commission of the River Oder (United King­ dom v. Poland), Judgment, 10 September 1929, PCIJ Series A No. 23, 27; GabčíkovoNagymaros Project (Hungary v. Slowakia), Judgment, 25 September 1997, ICJ Reports (1997), 7. 69 Supra note 8. The Guaraní Aquifer system stores about 37.000 km3 of water and has a total surface of 1.190.000 km2. Organization of American States, Guaraní Aqui­ fer System, 2005, available at: . 70 Cf. for instance, art. 12 Draft Articles, supra note 8, with art. 21 UN Watercourse Convention, supra note 57. 71   Agreement between the Government of the Polish People’s Republic and the Govern­ ment of the Union of Soviet Socialist Republics Concerning the Use of Water Resources in Frontier Waters, Warsaw (signed 17 July 1964, entered into force 16 February 1965), UNTS Vol. 552 No. 8054, (English translation p. 188); Mexico-US agreement on the permanent and definitive solution to the salinity of the Colorado River Basin (Inter­ national Boundary and Water Commission Minute No. 242) (signed 30 August 1973), ILM 12 (1973), 1105 (limiting groundwater pumping within five miles of the US-Mexican border to a certain quantity); Treaty of Peace between the State of Israel and the Hash­ emite Kingdom of Jordan (signed 26 October 1994, entered into force 10 November 1994), UNTS Vol. 2042 No. 35325; EU WFD, supra note 42. 72 Genevese Aquifer Arrangement and Convention, supra note 7; art. 40 Berlin Rules, supra note 62.



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abstractions exceeding certain limits,73 to requirements of environmental impact assessments in such cases.74 Nonetheless, international groundwater law has moved significantly ahead with the Draft Articles. The UN General Assembly took note of the Draft Articles and encouraged states to make appropriate bilateral and regional aquifer arrangements taking them into account.75 The final form of the Draft Articles will be discussed in 2013.76 They might become a stepping stone for a convention on transboundary aquifers. Or they might remain a non-binding document of high authoritative value. Regardless of whether the Draft Articles will mature into an international treaty or not, they should help pave the way for more biand multilateral agreements. If negotiations for a convention take place, it will be highly desirable to provide for a regular meeting of parties and the establishment of a secretariat to ensure implementation, as is the case for most environmental conventions. Other issues to address or revisit would be, inter alia, the use of the term groundwater besides the term aquifer where appropriate, sovereignty, the emphasis given to sustainability and other principles of environmental law, and dispute resolution. b. Iraqi, Syrian and Turkish Positions on the Draft Articles During the drafting process, more specifically after adoption on first reading by the ILC, governments were invited to provide comments and suggestions on the Draft Articles.77 Among the 19 states that replied were Iraq and Turkey; Syria did not offer any comments. Iraq made a number of suggestions in the direction of strengthening the Draft Articles. It proposed, inter alia, to include the term ‘shared’ in the title (“shared transboundary water resources”),78 to apply the obligation not to utilize a recharging aquifer at a level that would prevent continuance of its effective functioning also to non-recharging aquifers,79 to include an article on cooperation with 73 Annex III (g) Tripartite Interim Agreement between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilization of the Water Resources of the Incomati and Maputo Watercourses (signed 29 August 2002), available at: . 74 Art. 2 (2) and para. 12 Appendix I UNECE Convention on Environmental Impact Assessment in a Transboundary Context (signed 25 February 1991, entered into force 10 September 1997), ILM 30 (1991), 800. 75 UN Doc. A/RES/63/124 of 11 December 2008; UN Doc. A/RES/66/104 of 9 December 2011. 76 Ibid. 77 ILC, “Shared Natural Resources: Comments and Observations by Governments on the Draft Articles on the Law of Transboundary Aquifers”, UN Doc. A/CN.4/595 of 26 March 2008; UN Doc. A/CN.4/595/Add.1 of 7 May 2008. 78 Ibid., para. 64. 79 Ibid., para. 100.

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international organizations,80 and, notably, to add compulsory recourse to international arbitration in case of a dispute concerning the interpretation or application of the Draft Articles.81 None of these suggestions found sufficient support to be taken up in the final Draft Articles. In contrast to Iraq, Turkey’s suggestions aimed primarily at creating rules for more unfettered utilization of transboundary aquifers. Turkey proposed to delete reference to ‘alternative water sources’ as a factor to be taken into account when establishing individually or jointly comprehensive utilization plans (article 4) and to delete the availability of alternatives to a particular existing and planned utilization of the aquifer as one of the factors for determining equitable and reasonable utilization (article 5).82 It also suggested weakening the obligation not to cause significant harm by turning it into a due diligence obligation and, where significant harm is nevertheless caused, it suggested obliging states to only ‘try’ to take all measures to eliminate or mitigate such harm instead of obliging them to take all such measures (article 6).83 Other suggestions with a view to minimizing states’ restrictions include shorter and more general obligations on monitoring and a right to proceed with a planned activity if no agreement can be reached on whether such an activity has adverse effects on a neighboring state.84 The Turkish suggestions also remained unsuccessful. The Turkish position with regard to the Draft Articles is in harmony with its position on the UN Watercourse Convention. Turkey, which is nearly exclusively an upstream state in all of its transboundary rivers, was, together with Burundi and China, one of only three nations that voted against the UN Watercourse Convention in the UN General Assembly.85 It espouses a rather absolutist position whereas the UN Watercourse Convention obligates states to an equitable and reasonable use of a transboundary watercourse as well as to taking all appropriate measures to prevent the causing of significant harm to other riparian states, which is incompatible with views of strong sovereignty rights over transboundary waters. In contrast to the Turkish position, both Iraq and Syria have ratified or acceded to the UN Watercourse Convention. IV. Concluding Remarks The extent and characteristics of transboundary aquifers shared by Iraq, Syria and Turkey have not yet been systematically identified, classified and delineated,

80 Ibid., para. 222. 81   Ibid., para. 223. 82 Ibid., paras 112, 130. 83 Ibid., para. 143. 84 Ibid., paras 177, 188. 85 See UN Doc. A/51/PV.99 of 21 May 1997.



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although efforts to improve this situation are underway.86 The latter will provide a necessary basis for cooperation because, as trite as it sounds, only what can be measured can be managed. To date no legal arrangements have been made for any of the shared aquifers and the water negotiations between and among the countries have focused on surface water resources. A number of reasons have been identified as impeding cooperation over the Euphrates and Tigris rivers. Among them are lack of communication, lack of agreement over data, inefficient water-management, uncoordinated planning and development, and unwillingness to engage in multilateral negotiations.87 It is likely that similar reasons hinder cooperative development of the countries’ shared aquifers. The situation is further aggravated by differences in view concerning the interplay of equitable and reasonable utilization and the obligation not to cause significant harm, with Turkey emphasizing sovereignty rights. With demand for water for current and future development plans outstripping supply, the need for rules on using transboundary aquifers and managing them in a sustainable manner might be felt more sharply in the near future. Stress on groundwater resources has already grown due to advances in drilling and pumping technologies which have induced a horizontal expansion of irrigated agriculture. Pressure is likely to increase even further in view of rapidly increasing populations and the effects of climate change. Informal cooperation over shared groundwater might serve as a first step. The few treaties concluded for transboundary aquifers show that it is often a long journey until the time is ripe for a binding arrangement. Experience also teaches that external technical and financial support may be necessary along the way: all legal arrangements, except those for the Genevese aquifer, were preceded by large, externally funded projects which had an important component of knowledge generation and study of the shared resource and which aimed at data and information collection and exchange.88 These projects served the double purpose of generating information and promoting trust and cooperation as important stepping stones towards more formal ties. It remains to be seen how the Turkish position will play out in forging such cooperative arrangements. At the regional level, the scope of existing and emerging legal instruments cuts across the Euphrates and Tigris states with Turkey belonging to the UNECE and Iraq and Syria to ESCWA. If the UNECE Helsinki Convention becomes open to non-UNECE member countries, it might theoretically become an option for Iraq, Syria and Turkey to have their water resources governed by this regional treaty,

86 See supra part II. 4. 87 G. Pring / B. Salman Banaei, “Tigris and Euphrates Rivers”, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law vol. IX, 2012. 88 Mechlem, supra note 64.

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which with regard to groundwater would be particularly interesting in view of the model provisions on transboundary groundwaters under preparation. To date, given the absence of more specific legal instruments, the most relevant guidance on principles of international groundwater law applicable to the region is offered by the ILC’s Draft Articles on the Law on Transboundary Aquifers. They lay down the main principles of international water law in a manner that takes into account the specific characteristics and management challenges of shared groundwater resources. As an output of the ILC they are of high authoritative value and—as recommended by the UN General Assembly—should be taken into account in bilateral or regional arrangements for the proper management of transboundary aquifers.

Chapter Three

Governing International Watercourses: Implications of the Human Right to Water Pierre Thielbörger*

I. Introduction Over the course of the last 20 years, the issue of the human right to water and sanitation1 has remarkably come into fashion. Since 1992, every 22nd of March is celebrated as annual ‘world water day’.2 Since 1997, six world water fora have been held, reaffirming on a tri-annual basis that, especially in times of climate change, water is one of the most important common goods and that no person should live deprived of it.3 The UN named the entire decade 2005–2015 as “The International Decade for Action: Water for Life”.4 The UN Millennium Development Goals of 2000 demand that the proportion of people living in hunger and thirst should be halved by 2015.5 Since 2008, Catarina de Albuquerque holds the

* Thanks to Sigrid Mehring and Adele Kirschner for very helpful comments on an earlier draft of this paper. Thanks also to my assistants Tobias Ackermann, Stephan Koloßa and Maresa Schneider for their support with editing and research. 1   For the purpose of this contribution, I will refer to the human right to water rather than to a human right to water ‘and sanitation’. This is by no means suggesting the latter is less important nor making a statement on the interesting question whether water and sanitation are two distinct rights or rather two elements of one united right. It is simply for reasons of brevity and relevance to this contribution that I refer to the right to water only. 2 For more information on the annual celebrations, see . 3 Webpage of the 5th World Water Forum, Istanbul 2009, including history of the four previous ones, available at: , and webpage of the 6th World Water Forum, Marseille 2012, . 4 UN Doc. A/RES/58/217 of 23 December 2003. 5 UN Doc. A/RES/52/2 of 18 September 2000, para. 19.

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mandate of the Independent Expert,6 since 2011 called Special Rapporteur,7 to monitor whether states obey their human rights obligations related to the issue of access to safe drinking water and sanitation. Finally, in 2010 the UN General Assembly8 as well as the UN Human Rights Council9 have both recognized a human right to water as forming part of international law. The law of transboundary watercourses has not benefitted much from this recent hype on the human right to water. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses10 (UN Watercourse Convention) of 1997 has still not been ratified by the required number of 35 states (article 36 (1) UN Watercourse Convention). As a result, it has not yet entered into force. Despite some positive recent developments—in particular the ratifications of Benin, Denmark, Luxembourg, Chad and Italy in 2012; and Niger in 2013 resulting in a current total of 30 ratifications11—it is not certain that the number of 35 ratifications will easily be reached in the next years. Politicians and academics alike tend to treat transboundary watercourses and a human right to water and sanitation as strictly separate. Just to give one example of this separation: the mandate of the Special Rapporteur on the human right to water and sanitation—the most important special procedure of the UN with respect to that right—explicitly excludes all matters relating to the issue of transboundary watercourses.12 After first developing an overview of the current status of the right to water in international law, this contribution examines the differences between the two legal fields (transboundary watercourses and the human right to water) in order to find an explanation for the traditional disconnection of both topics. It subsequently looks into existing water treaties to identify cases in which the human right to water was nevertheless referred to. In a final step, the contribution examines to what extent a human right to water—if accepted in international

   6 See UN Doc. A/HRC/RES/7/22 of 28 March 2008; UN Doc. A/HRC/9/28 of 2 December 2008, Annex IV.    7 UN Doc. A/HRC/RES/16/2 of 8 April 2011.    8 UN GA Resolution “The Human Right to Water and Sanitation”, UN Doc. A/RES/64/292 of 3 August 2010 (GA meeting held on 28 July 2010).    9 UN HRC Resolution “Human Rights and Access to Safe Drinking Water and Sanitation”, UN Doc. A/HRC/RES/15/9 of 6 October 2010. 10 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted 21 May 1997, not yet entered into force), ILM 36 (1997), 700 (UN Watercourse Convention). 11   For the current status of ratifications, please see the UN’s official website at . 12 UN Doc. A/HRC/RES/7/22 of 28 March 2008, preamble para. 13; UN Doc. A/HRC/RES/ 16/2 of 8 April 2011, preamble para. 8.



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law—can lead to increased duties of water assistance and cooperation between co-riparian states and how it supports the principles of ‘equitable utilization’ and even more ‘no-significant harm’—two well-established principles in the law of transboundary watercourses. II. Overview over the Current Status of the Human Right to Water and Sanitation Other contributions in this volume have explained in detail the current status of the law of transboundary watercourses,13 so this contribution will focus on shedding some light on the current status of the human right to water. In a short piece like this, one cannot comprehensively assess the current status of the human right to water in international law. Many authors have done so in great detail,14 coming to quite different conclusions, with some arguing that such a right remains emergent and others assuming it finally to have emerged. In terms of treaty law, the right to water was omitted when the two International Covenants15 were drafted in the 1960s. The time was simply not ripe for thinking of water as an individual right rather than a public good belonging to states.16 By contrast to the right to housing or the right to food, water remained entirely unmentioned. In the following decades, the right was mentioned only in some specialized human rights treaties, e.g. the Convention on the Elimination of All Forms of Discrimination against Women of 197917 or the Convention on the Rights of the Child of 1989.18 The application of those treaties is limited to the specific groups they were created for; they thus create no universally applicable human right. Additionally, the right to water was mentioned in several international statements and political affirmations, most importantly in the 1977

13 Especially R. Wolfrum / A. J. Kirschner, “A Survey of Current Challenges and Trends in the Context of International Water Law”, in this book. 14 To name just a few, S. R. Laskowski, Das Menschenrecht auf Wasser, 2010; S. M. A. Sal­ man / S. McInerney-Lankford, The Human Right to Water: Legal and Policy Dimensions, 2004; I. Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation”, 2012; P. Thielbörger, The Right(s) to Water, 2013. 15 The International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976), UNTS Vol. 999 No. 14688 (ICCPR), and the Interna­ tional Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), UNTS Vol. 993 No. 14531 (ICESCR). 16 See P. H. Gleick, “The human right to water”, Water Policy 1 (1998), 487 (490). 17 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entry into force 3 September 1981), UNTS Vol. 1249 No. 20378. 18 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990), UNTS Vol. 1577 No. 27531(CRC).

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Mar del Plata Declaration19 and the 1992 Dublin Statement.20 In 2010, the UN General Assembly and the Human Rights Council reaffirmed the right in two respective resolutions.21 All of these statements, however, are not legally binding and can thus, per se, not create new treaty law. An important development came in 2002, with General Comment No. 1522— also legally non-binding, but an authoritative interpretation of the International Covenant on Economic, Social and Cultural Rights23 (ICESCR). In this comment, the Committee on Economic, Social and Cultural Rights (CESCR) expressed its view that the rights of an adequate standard of living (article 11 ICESCR) and the right to health (article 12 ICESCR) must necessarily include a right to water.24 If one accepts this creation of new rights by a committee of experts, one can conclude that the right to water exists in international law, not merely as a selfstanding or independent right—which would be the usual conception of a newlycreated right. Thus, it would need to be understood as a, what some authors have called, right of a “unique status”.25 However, despite its great political meaning, one should not overestimate General Comment No. 15: in a ‘traditional’ understanding of international law, it did not create new treaty law. In terms of customary law, things are equally blurred. Most authors who have raised this question have concluded that such a right currently does not exist, in particular regarding the lack of consistent state practice (consuetudo).26 However, if one accepts a more flexible approach to the two necessary elements of practice

19   UN Water Conference, “Mar del Plata Action Plan” (14–25 March 1977), UN Doc. E/ CONF.70/29. 20 International Conference on Water and the Environment, Dublin Statement on Water and Sustainable Development (31 January 1992), Principle No. 4. 21   UN Doc. A/RES/64/292, supra note 8; UN Doc. A/HRC/RES/15/9, supra note 9. 22 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (arts 11 and 12), UN Doc. E/C.12/2002/11 of 20 January 2003. 23 N. Ando, “General Comments/Recommendations”, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2008 (online edition), available at: , para. 41; E. Filmer-Wilson, “The Human Rights-Based Approach to Development: The Right to Water”, NQHR 23 (2005), 213 (228); Salman / McInerneyLankford, supra note 14, at 40; P. Thielbörger, “The Human Right to Water Versus Investor Rights: Double-Dilemma or Pseudo-Conflict?”, in: P. Dupuy et al. (eds), Human Rights in International Investment Law and Arbitration, 2010, 487 (492). 24 General Comment No. 15, supra note 22, at para. 3. 25 A. Cahill, “The Human Right to Water—A Right of Unique Status: The Legal Status and Normative Content of the Right to Water”, The International Journal of Human Rights 9 (2005), 389 (395); agreeing with such a conclusion, A. J. Kirschner, “The Human Right to Water and Sanitation”, in: A. von Bogdandy / R. Wolfrum (eds), Max Planck UNYB 15 (2011), 445 (469). 26 A. J. Kirschner, supra note 25, at 445 (465); B. Rudolf, “Menschenrecht Wasser—­ Herleitung, Inhalt, Bedeutung und Probleme”, in: B. Rudolf (ed.), Menschenrecht ­Wasser?, 2007, 15.



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and legal opinion (opinio iuris),27 or one that focuses on the latter,28 one can potentially conclude that a human right to water has arisen as part of international custom. Such line of argument is largely based on a strongly crystallized opinio iuris, as recently evidenced by the 2010 UN General Assembly resolution and the 2010 Human Rights Council resolution (the latter being adopted unanimously without a vote); such an approach, however, rather disregards the evident lack of existing state practice. Thus, it is only safe to say that there is a clear trend moving in the direction of a human right to water, both in international treaty law and international custom. Whether such a right is still becoming established or is already established, remains open to debate. I will for the purpose of this contribution assume that, at least in its own unique way, the human right to water exists as a distinctive right, derived from other existing socio-economic rights, foremost article 11 (adequate standard of living) and article 12 (highest attainable standard of health) of the ICESCR. III. Differences of the Right to Water and the Issue of Transboundary Watercourses: An Explanation for the Categorical Divide There are several significant differences between the two topics, the right to water and the law of transboundary watercourses. These differences partly explain why both topics have been kept so strictly separate for such a long time. Firstly, the law of transboundary watercourses applies exclusively between states. Watercourses are considered part of state territory (often even a part of territory of which states are particularly protective). Human rights law, on the contrary, applies between the individual and the state. States have to respect, protect and fulfill29 the enjoyment of the human right to water of the respective individuals. Secondly, conflicts over transboundary watercourses always have per defini­ tionem an international, extraterritorial dimension. Otherwise, these conflicts would not be transboundary at all. The right to water, as any human right, is different: it is typically invoked by citizens against their ‘own’ states. Thus, human 27 F. L. Kirgis, Jr., “Custom on a Sliding Scale”, AJIL 81 (1987), 146–151; A. E. Roberts, “Tra­ ditional and Modern Approaches to Customary International Law: A Reconciliation”, AJIL 95 (2001), 757–791. 28 B. Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International Custom­ ary Law?”, IJIL 5 (1965), 23–48; N. Petersen, “Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation”, Am. U. Intl’l L. Rev. 23 (2008), 275–310. 29 E. Riedel, “International Covenant on Economic, Social and Cultural Rights (1966)”, in: Wolfrum, supra note 23, para. 14 et seq.

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rights create very limited extraterritorial obligations for states (see, however, the ‘caveat’ to this argument below). Thirdly, and directly related to the second point, human rights claims are usually decided by national courts. The level of effective judicial remedy of human rights is the national, not the international level. Only in a second step do international courts come into play. For the human right to water, the additional problem exists that socio-economic rights are currently still not easily enforceable on the international level. An optional protocol like that of the International Covenant on Civil and Political Rights (ICCPR), making individual complaints possible,30 for many years did not exist in the case of the ICESCR; only in 2008, such a protocol was successfully negotiated.31 Signed by 42 and now ratified by ten states, the Optional Protocol to the ICESCR entered into force on 5 May 2013 in accordance with its article 18.32 Thus, the right to water will in the future be directly enforceable at the international level in the form of an individual complaints procedure. However, due to the still small number of ratifications this possibility remains very limited for the foreseeable future. Thus, the national level remains, for now, the more effective level for the enforcement of socio-economic rights. Disputes on transboundary watercourses, on the contrary, are usually decided as a last resort by international courts33 or by international arbitral tribunals34 (if not previously settled, as in most cases, through negotiation or joint institutions).

30 See art. 5 of the First Optional Protocol to the ICCPR (adopted 19 December 1966, entered into force 23 March 1976), UNTS Vol. 999 No. 14688. 31 Optional Protocol to the ICESCR (adopted 10 December 2008, entered into force 5 May 2013), UN Doc. A/RES/63/117 of 10 December 2008. See C. Albuquerque, “Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights—The Missing Piece of the Interna­ tional Bill of Rights”, Hum. Rts. Q. 32 (2010), 144–178. 32 See . 33 Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder (United Kingdom et al. v. Poland), Judgement, 10 September 1929, PCIJ Series A No. 23; Diversion of Water from the Meuse (Netherlands v. Belgium), Judgement, 28 June 1937, PCIJ Series A/B No. 70; Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judge­ ment, 25 September 1997, ICJ Reports (1997), 7–84; Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010), 14–107; see also the pending case concerning the Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), available at: . 34 Just to give a few examples, see Affaire du Lac Lanoux (France v. Spain), Award, 16 November 1957, RIAA Vol. XII, 281–317; Indus Waters Kishenganga Arbitration (Paki­ stan v. India), Permanent Court of Arbitration, Order, 23 September 2011, available at: ; Bayview Irrigation District et al. v. United Mexican States, ICSID, Award, 19 June 2007, Case No. ARB(AF)/05/1, available at: .



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Thus, the bodies to decide the claims over the two respective fields of law, socioeconomic rights and the law of transboundary watercourses, differ largely. These are three important differences, but still do not wholly explain the categorical divide between both topics. At least as important as these legal differences, are economic and political reasons. Firstly, states are very protective of their water sources, as water has become one of the most precious natural resources in economic terms, sometimes called the ‘Blue Gold’.35 It holds significant economic value for agricultural and industrial uses.36 States have been uncertain for a long time about what new duties a human right to water would entail and what this would mean for their economies. They feared, and fear still, unknowingly creating obligations to share what they perceive as ‘their’ blue gold. Secondly, as old as the idea of states itself, is the key notion of their very existence: sovereignty. States have always been reluctant to accept any restrictions over their sovereignty. A striking indication for this reluctance of states to give up sovereignty, in particular in the field of water, is to be found in European Law: according to article 192 (2) (b) Treaty on the Functioning of the European Union37—the only norm that deals with the issue of water directly in the so-called Lisbon Treaty—European regulations and directives establishing measures that affect the quantitative management of water resources or their availability must be adopted by a unanimous vote by the Council. This is a clear derogation from the usual procedure applicable in EU environmental policy, which is to adopt legislation through a co-decision of the Council and the European Parliament.38 This derogation in European law emphasizes the sensitive importance of the management of states’ water resources in terms of their sovereignty. The exceptional requirement of unanimity shows that states remain unwilling to lose any rights over their internal water sources from their own grasp. This is not only true for European law, but even more so with regard to international law.

35 M. Barlow / T. Clarke, Blue Gold: The Fight to Stop the Corporate Theft of the World’s Water, 2003; M. S. Helal, “Sharing Blue Gold: The 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses Ten Years On”, Colo. J. Int’l Envtl. L. & Pol’y 18 (2007), 337; V. Petrova, “At the Frontiers of the Rush for Blue Gold: Water Privatization and the Human Right to Water”, Brook. J. Int’l L. 31 (2006), 577. 36 B. Aylward et al., Study for UN FAO: The Economic Value of Water for Agricultural, Domes­ tic and Industrial Uses: A Global Compilation of Economic Studies and Market Prices, available at: ; also see S. Tellinghuisen, “Water for Power Generation: What’s the Value”, Nat. Resources J. 50 (2010), 683–720. 37 Consolidated Versions of the Treaty on European Union and the Treaty on the Func­ tioning of the European Union (signed 13 December 2007), EU OJ C115/1 of 9 May 2008. 38 Ibid., art. 192 (1).

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Thus, keeping both topics strictly apart must be seen as an attempt by states ‘to be on the safe side’ with respect to the right to water. States want to ensure that an unknown emerging right would neither interfere with their economic interests nor with their sovereign domestic rights over what they conceive as their precious, albeit liquid, territory. IV. References to the Right to Water in Existing Watercourse Agreements and Judgments on International Watercourses Nevertheless states can, if they wish to, emphasize the importance of the human right to water, when concluding international agreements on transboundary watercourses. They do so voluntarily in order to emphasize their intent to promote the human right to water, when using shared watercourses in the future. An early example of such, albeit indirect, inclusion of the right in an international agreement is the Treaty between the United States of America and Great Britain relating to Transboundary Waters and Questions between the United States of America and Canada of 1909.39 Article 3 of that agreement ensures that any provision of the agreement is not “intended to interfere with the ordinary use of (the) waters for domestic and sanitary purposes”. One century later, such references have become much more explicit. Article 4 of the Charter of Water of the Senegal river of 2002,40 concluded between the Republic of Mali, the Islamic Republic of Mauretania and the Republic of Senegal, states that [t]he guiding principles of any distribution of water of the river aims at ensuring the populations of the coastal States, the full pleasure of the resource, in the respect of the safety of the people and the works, as well as basic human rights to a salubrious water, from the point of view of a durable development.

Even stronger, La Charte d l’Eau du Niger of 2008 refers in several of its articles to the right to water and prioritizes human needs over other uses,41 by stating inter alia that dans l’utilisation des ressources en eau du Bassin du Niger, aucun usage n’est prioritaire par rapport aux autres, mais en cas de concurrence entre plusieurs utilisations, une attention particulière devra être accordée aux besoins humains essentiels (article 15 (1)).

39 Treaty between the United States and Great Britain Relating to Boundary Waters, and Questions Arising Between the United States and Canada, Washington (signed 11 Janu­ ary 1909, entered into force on 5 May 1910), TIAS 3 (1910), 2607. 40 Charte des Eaux du Fleuve Sénégal (2002), available at: (Senegal River Charter). 41   Arts. 1, 4 and 15 as well as the preamble of the Charter, La Charte de l’Eau du Niger (signed 30 April 2008), available at: .



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In its preamble, the Charter even considers “le droit fondamental pour chaque individu d’accès à l’eau”. For a European example, the 1999 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes42 of the UNECE obliges state parties to take all appropriate measures for the purpose of ensuring adequate supplies of wholesome drinking water (article 4 (2) (a)) and adequate sanitation (article 4 (2) (b)). State parties shall be guided by the principle of equitable access to water, adequate in terms both of quantity and of quality, to be provided for all members of the population, in particular vulnerable persons (article 5 (l)). States must also pursue the aims of access to drinking water (article 6 (1) (a)) and provision of sanitation (article 6 (1) (b)) for everyone. Where such a reference is not included in an agreement—which still constitutes the majority of treaties on shared watercourses—or where no valid agreement exists at all, judges and arbitrators nevertheless have to decide whether or not to refer to the human right to water when settling disputes on shared watercourses. In 1997, in its famous Gabčíkovo-Nagymaros-case,43 the International Court of Justice (ICJ) linked transboundary watercourses exclusively with the interests of states. It accepted the concerns expressed by Hungary for its natural environment such as groundwater and the water supply of Budapest, as they constituted an “essential interest of that State”.44 It made no mention of a possible human right to water: the time to link individual rights with transboundary waters had simply not arrived. It is quite possible, however, that the ICJ, or an arbitral tribunal, would make such explicit reference to the human right to water, if confronted with a similar dispute today, some 15 years after the GabčíkovoNagymaros case. An example of such development is the recent Pulp Mills-case between Argentina and Uruguay,45 where both states argued over a certain use of the Uruguay River. The ICJ’s starting point in its ‘Order on the Request of Provisional Measures’ of 2006 and its judgment from 2010 is again that of the rights of riparian states, rather than individuals.46 The court refers explicitly back to its ­jurisdiction in the

42 UNECE Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, ILM 38 (1999), 1708. 43 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), supra note 33. 44 Ibid., para. 53; see also P. Dupuy, “Le droit a'leau—un droit international?”, EUI Work­ ing Papers No. 2006/06, 10. 45 Case concerning Pulp Mills on the River Uruguay, (Argentina v. Uruguay), Order on the Request for the Indication of Provisional Measures, 13 July 2006, ICJ Reports (2006), 113–135; for the judgment in 2010, see supra note 33. 46 Ibid., Provisional Measures, para. 80: “to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States” (emphasis added); Judgment, para. 177: “to reconcile the varied interests of riparian States in a transboundary context and in particular in the use of a shared natural resource” (emphasis added).

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Gabčíkovo-Nagymaros case47 stating that “the environment is not an abstraction, but represents the living space, the quality of life and the very health of human beings”.48 Given that the court earlier emphasized the “need to protect (the) natural environment and (. . .) the quality of the water of the river Uruguay”,49 the court accepted, albeit indirectly, a subtle link between human rights interests (e.g. life and health of human beings) and the quality of the water of the Uruguay river. However, the court (once again) missed a golden opportunity on this occasion: it made no direct reference to the human right to water of the riparian populations, nor to any human rights obligations. This is even more regrettable given that Uruguay itself had suggested such a link: it had affirmed its willingness to “respect (. . .) the environment and (. . .) the entire range of human rights of the Uruguayan and Argentine peoples.”50 The ‘timing’ of the judgment is in that respect curious, maybe even unfortunate: it was rendered in April 2010, while the affirmations of the human right to water through the General Assembly and the Human Rights Council occurred a few months later, namely in July and October of that year.51 It remains speculative, but not unlikely, that the court would have considered referring to the human right to water in its decision, if the judgment had been rendered ‘after’ the resolutions of the General Assembly and the Human Rights Council were rendered. It will be very interesting to note how the court will decide in the case of ‘Construction of a Road in Costa Rica Along the San Juan River’ between Nicaragua and Costa Rica:52 will the court finally establish an explicit link between human rights, or even a human right to water, and the use of transboundary watercourses? Judge Weeramantry, far ahead of his time and more direct than his successors in the Pulp Mills case in 2010, wrote in his separate opinion on the GabčíkovoNagymaros case in 1997 that the protection of the environment is (. . .) a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself  53

He continued to state that “damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments”.54 This is indeed remarkably similar to the language

47 Ibid., Provisional Measures, para. 72. 48 Ibid., para. 72. 49 Ibid. 50 Ibid., para. 56. 51   See supra notes 8 and 9. 52 Supra note 33. 53 Separate Opinion of Vice-President C. G. Weeramantry, ICJ Reports 1997, 88 (91). 54 Ibid.



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of the UN Watercourse Convention of the same year, which requires states in its article 10 (2) to “give special regards (. . .) to the requirements of vital human needs”, when settling a dispute about different uses of an international watercourse. Although the UN Watercourse Convention is phrased in terms of state obligations rather than in terms of individual rights, article 10 (2) clearly shares the same spirit as the human right to water and judge Weeramantry’s separate opinion: to prioritize the use of water for human consumption over other water uses and to hold states responsible for according water allocation decisions. Altogether, the growing acceptance of a human right to water has increasingly led state parties to reference the right when concluding international agreements on shared waters (and most likely will lead judges and quasi-judges in the future to do so as well, even where no agreement exists). This is indeed a welcome development. It reflects that states must keep in mind the vital importance of freshwater for populations when negotiating water agreements. It puts the individual on the international agenda in an important area which used to be a field of law reserved to states. Finally, it clarifies that states are trustees rather than owners of the freshwater resources on their territory. V. Normative Elements of a Right to Water to Intensify International Water Assistance and Cooperation If the human right to water is accepted as part of international law, and if it is included, explicitly or implicitly, in international water agreements, what international obligations with respect to international water cooperation and assistance could potentially arise for riparian states of a river basin? The previous section noted that a human right to water is more and more referred to in agreements on international watercourses and that judges might allude to it increasingly in the future when settling water disputes—but what does the human right to water actually have to say about the issue of transboundary watercourses? What positive contribution could the right make, if taken seriously, for the use of transboundary watercourses in terms of facilitating water assistance and cooperation? As a preliminary note, the general assumption remains that accepting a specific human right has little international implication for states. The applicability of human rights is generally limited by a state’s territory and jurisdiction;55 only in exceptional cases has the international community accepted obligations of states that are extraterritorial—a field of research that is currently much

55 See for example art. 2 (1) ICCPR, supra note 15; art. 2 (1) CRC, supra note 18; art. 1 European Convention for the Protection of Human Rights and Fundamental Free­ doms (adopted 4 November 1950, entered into force 3 September 1953), UNTS Vol. 213 No. 2889 and art. 1 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978), UNTS Vol. 1144 No. 17955.

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debated.56 Accepting a (new) human right means primarily accepting new obligations within a state’s territory and jurisdiction, not outside of it. This section tries to identify only those obligations that could exceptionally go beyond this traditional applicability of human rights. One should start by making a terminological distinction between international ‘assistance’ and international ‘cooperation’. One interpretation is to treat both terms interchangeably, as is suggested traditionally, inter alia, by the United States of America.57 Recent international treaties tend to focus more on the term ‘international cooperation’, disregarding international assistance altogether.58 This might be a rational attempt to replace two overlapping terms by one; it might also simply be terminological fuzziness. This contribution will follow the definition suggested, inter alia, by Matthew Craven who defines cooperation as all forms of “mutual action directed towards a common goal”, whereas assistance means “the provision or transfer of some good from one State to another”.59 No treaty, nor any other human rights instrument, offers a comprehensive definition or interpretation of international assistance or international cooperation— neither in general terms nor for the case of water specifically. This is not a result of negligence on the part of the respective drafters; it is rather a reflection of the fact that there is very little agreement amongst states about the definition, scope and legal status of these two terms. Rich countries tend to deny the existence of a legal obligation to provide any form of international assistance altogether,60 whereas developing countries, including many of the Group 77 States, insist

56 See, out of many, M. J. Dennis, “Application of Human Rights Treaties Extraterritori­ ally During Times of Armed Conflict and Military Occupation”, AJIL 99 (2005), 119–141; O. A. Hathaway et al., “Human Rights Abroad: When Do Human Rights Treaty Obliga­ tions Apply Extraterritorially?”, Ariz. St. L. J. 43 (2011), 389–426. 57 See for instance the statement of the US delegation during the drafting process of the ICESCR, UN GAOR 17 Sess., 1204th meeting of the Third Committee, para. 49, stating that “international cooperation in the original text of article 2, para. 1 adequately covered all forms of international assistance”. 58 See for instance arts 4, 17 and 24 (4) CRC, supra note 18, or, art. 4 and especially art. 32 Convention on the Rights of Persons with Disabilities, GAOR 61st Sess. Suppl. 49 Vol. 1, 65. 59 M. Craven, The International Covenant on Economic, Social and Cultural Rights—A Perspective on its Development, 1995, 146–147. 60 See for instance statements of Canada and France in the “Report of the Open-ended Working Group to consider options regarding the elaboration of an Optional Proto­ col to the ICESCR”, 2nd Session, 2005, UN Doc. E/CN.4/2005/52 of 10 February 2005, para. 76 et seq. On a similar debate concerning the right to development, see the statement of Germany on behalf of the European Union in the “Report of the Work­ ing Group on the Right to Development”, 8th Session, 2007, UN Doc. A/HRC/4/47 of 14 March 2007, para. 52 and Annex III, para. 63.



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that international assistance and cooperation are both legal obligations.61 Some academics have criticized this denial of responsibility and argued in ‘favour’ of such a legal obligation, following either directly from international treaties, in particular from the UN Charter and the International Covenants, or from an emerging norm of international customary law.62 If one looks into general international law, article 1 (3) of the UN Charter names as one purpose of the UN “[t]o achieve international co-operation in solving international problems of economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms” (emphasis added). In article 56 of the Charter, all members commit themselves “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in article 55” (emphasis added), including economic, social or health-related goals. Also the Universal Declaration on Human Rights recognizes a variety of international obligations.63 Article 22 of the Universal Declaration states that everyone “is entitled to the realization, through national effort and international cooperation (. . .), of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Article 28 gives everyone an entitlement to a social and ‘international order’ in which the rights of the Universal Declaration can be fully realized. Altogether, the drafters of both the UN Charter and of the Universal Declaration were fully aware that the goals of the UN, in particular the promotion of human rights such as the human right to water, are only possible through international collaboration. The provisions of the ICESCR, from which the human right to water would flow, are even more explicit. According to article 2 (1) ICESCR, each party has to take steps “individually and through international assistance and co-operation, especially economic and technical” (emphasis added) to progressively achieve the full realization of the rights of the ICESCR. Explicitly on the right to an adequate

61   See for instance statements of Nigeria and Egypt in the “Report of the Open-ended Working Group to consider options regarding the elaboration of an Optional Protocol to the ICESCR”, supra note 60, at para. 76. In the debate concerning the right to devel­ opment, see the statement of Algeria on behalf of the African States, in the “Report of the Working Group on the Right to Development”, supra note 60, at para. 18, and state­ ment of Cuba on behalf of the Non-Aligned Movement (NAM), para. 19 & Annex III, para. 62. 62 P. Alston, “Ships Passing in the Night: The Current State of the Human Rights and Devel­ opment Debate seen through the Lens of the Millennium Development Goals”, Hum. Rts. Q. 27 (2005), 755 (778); M. Sepulvéda, “Obligations of international assistance and cooperation in an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”, NQHR 24 (2006), 7–56. 63 As a resolution of the UN General Assembly, the Universal Declaration is not legally binding as treaty law; however, it reflects, in large part, customary law.

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standard of living, including adequate food, clothing and housing, article 11 (1) ICESCR obliges states to take steps towards the realization of the right, “recognizing to this effect the essential importance of international cooperation based on free consent.” Article 11 (2) ICESCR recognizes the right of everyone to be free from hunger and obliges states to take “individually and through international cooperation” (emphasis added) the necessary measures, i.e. “to ensure an equitable distribution of world food supplies in relation to need.” This international dimension of the ICESCR is somewhat remarkable. Economic and social rights differ from civil and political rights in their strict territorial focus, as stated above: whereas treaties on civil and political rights refer explicitly to the obligations of the state within whose territory and jurisdiction the respective right is guaranteed, the ICESCR contains no provision on its scope of application with regard to territory and jurisdiction.64 Instead, it places a stronger emphasis on international mechanisms and obligations;65 albeit territory and jurisdiction remain important factors to determine whether a state holds, in the ICJ’s words, “effective control” over a population.66 On top of these provisions in general international law, General Comment No. 15 of the CESCR albeit not per se legally-binding, but nevertheless a suitable guide for the right’s suitable normative content—dedicates a whole section to international obligations. It names states’ duties to respect, protect and fulfill, and gives all three of them an international flavour. The obligation to ‘respect’ a human right to water is mainly associated with the idea of the nation state, as it is often understood, rightly or wrongly,67 as a negative duty not to interrupt an existing water supply. However, there are different imaginable scenarios in which a state other than the host state itself carries the obligation to respect the right to water of people. A state might contaminate any source of freshwater that runs or lies between itself and another state. In inter-

64 Interestingly, the Optional Protocol of the ICESCR mentions in its art. 13 (“Protection Measures”) that [a] State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.(emphasis added). 65 Of course, these obligations of international cooperation and assistance are not sup­ ported by any correspondent international mechanisms to enforce them. 66 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports (2004), 107–113, para. 112. 67 In particular, Henry Shue has famously shown in his ground-breaking work that the distinction between negative and positive obligations, and ultimately between civil and political and socio-economic rights, is often a false one; see H. Shue, Basic Rights: Sub­­ sistence, Affluence, and U.S. Foreign Policy, 1996.



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national environmental law, it has been established since the Trail Smelter-case68 in the early 1940s that a state’s behaviour may not cause damage to the environment of another state. The tribunal in the Trail-Smelter-case found that under the principle of international law (. . .) no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.69

This principle has also been repeated in Principle 21 of the Stockholm Declaration of 197270 and in article 7 of the UN Watercourse Convention.71 This no-harm principle, originally taken from international environmental law, must equally apply to the protection of the human right to water. Even if we understand the Trail-Smelter case as mainly prohibiting one state from interfering in the affairs of another state (as was certainly intended by the tribunal at the time), polluting a water supply system in another state (via a shared watercourse) constitutes at the same time an infringement of the right to water of the people of that state. Socio-economic rights increasingly require respect from any state not only in an individual’s own country, but in all countries.72 General Comment No. 15 of the CESCR recognizes in paragraph 31 this general obligation to respect the (existing) enjoyment of the right to water in other countries and obligates states to refrain from any action that interferes with the right in other countries. As a special case of such disrespect, embargoes or similar measures that prevent the supply of water in other countries are generally excluded as instruments of political or economic pressure (paragraph 32). The human right to water, thus, requires that water shall never be used as an instrument of

68 Trail Smelter Arbitration (United States v. Canada), Award, (16 April 1938 and 11 March 1941), UN RIAA 3, 1905–1982. 69 Ibid., 1965. 70 UN Conference on the Human Environment, Stockholm Declaration of the United Nations Conference on the Human Environment (16 June 1972), UN Doc. A/CONF.48/14/ Rev 1, 3, Principle 21: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 71   Art. 7 (1) of the UN Watercourse Convention, supra note 10, states: “Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.” 72 For instance, the UN Committee on the Right of the Child argued that States must “respect and protect economic, social and cultural rights of children in all countries with no exception.” Committee on the Rights of the Child, “General Discussion on ‘Resources for the Rights of the Child—Responsibility of States’ ”, 46th session, 21 September– 5 October 2007, para. 51, available at: .

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political or economic pressure internationally. This idea is particularly relevant in the relationship between upstream and downstream states. Upstream states are banned from suppressing released water amounts (e.g. by regulating dams etc.) as a means of political pressure. In terms of a duty to ‘protect’, states have to prevent third parties from interfering with the right to water. In some situations this duty might develop an international dimension. Paragraph 33 of General Comment No. 15 explicitly mentions the case in which a state, or the community of states, is in a position to influence third parties to respect the right through legal or political means. Such steps must be taken in accordance with the UN Charter and applicable international law.73 Privatization of water supply systems through foreign investors is a typical case, where such a duty is at stake. If a project aimed at water privatization fails, e.g. water prices dramatically rise or the investor does not undertake the necessary infrastructure investments to ensure high quality, in certain circumstances not only the host states, but also the home state of the investor might have a special obligation to protect the right to water. In fact, private water investors often are headquartered in a state other than where the supply system is operated,74 while neighbouring states occasionally create joint private companies in order to manage a certain use of the shared watercourses (e.g. the management of supply systems and joint dam projects).75 If one accepts extraterritorial obligations of the right to water as suggested in the General Comment, the task for other states then is to regulate those transnational water companies headquartered in their jurisdiction, if legally possible, and prevent them from harming the right to water in other states as well. The most contested category of international obligations is that of the obligation to ‘fulfill’. Is there an emerging norm of international human rights law that those states, who are in the economic and financial position to provide

73 This is a very common description of the right to protect as an international responsi­ bility. General Comment No. 14 on the right to health, for instance, holds a very similar description, see Committee on Economic Social and Culutural Rights, General Com­ ment No. 14: The Right to Health (art. 12), UN Doc. E/C.12/2000/4 of 11 May 2000, para. 39. 74 See in particular the cases of France, and the UK, where several global water corporations are headquartered, D. Hall / E. Lobina, “International Actors and Multinational Water Company Strategies in Europe, 1990–2003”, Utilities Policy 15 (2007), 64 (68 et seq.). 75 Apart from the ‘Gabčíkovo-Nagymaros Project’, supra note 33, see for instance the ‘Itaipu Dam Project’ (a hydroelectric dam on the Paraná River located on the border between Brazil and Paraguay) being constructed and operated by Itaipu Binacional, an entity based on the Itaipu Treaty between Brazil and Paraguay (see ); or the ‘Lesotho Highlands Water Project’ (an ongoing water supply project by Lesotho and South Africa) operated by a joint commission, see )



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i­ nternational water assistance to those in a less prosperous position, are obligated to do so? Does this in particular apply between states that share waterbodies? Joint duties to fulfill certainly might be the exception, but must remain possible. As with the right to food, the primary obligation to fulfill the right to water always rests with the national government;76 however, in a time of increasing interconnected­ness, there is a need to extend such obligation, in certain cases, extraterritorially.77 An example for such an international obligation can arise from the voluntary acceptance of such a responsibility. In the case of close economic or political unions, as for instance within the EU, members of such unions have arguably started to take over certain common responsibilities which exceed the bare duty not to harm the other members’ economic system.78 Depending on the specific case, this can also include the duty to support the realization of economic rights in other member states. The question of whether such specific obligations exist or not needs to be decided on a case by case basis, and must be determined by virtue of the law that is agreed between those partners. However, it is important to keep in mind that in particular cases the obligation to fulfill the right to water rests on several states together, rather than on each state individually. Such an international dimension of the obligation to ‘fulfill’ is closely tied to the notion of states being ‘in a position to’ do so (see paragraph 38 of the General Comment No. 15). States who are (economically) more capable, have a greater responsibility. This is in some ways similar to the idea of ‘common but differentiated responsibilities’ as recognized as a soft law principle in international environmental law.79 The depletion and unequal distribution of water, the argument goes, imposes special duties upon more developed countries to assist in the fulfillment of the economic and social duties attached to the right to water in less developed states. General Comment No. 15 addresses the obligation to fulfill in paragraph 34—interestingly, without naming it explicitly. It suggests that the duty consists of two main elements: the obligation to ‘facilitate’ and the obligation to ‘provide’. Depending on the availability of resources, to ‘facilitate’ means an obligation to create an environment in which the population of other states is able to exercise their right to water.80 This obligation might include taking the initiative for exchange of expertise in the field of water governance 76 UN Commission on Human Rights, Report of the Special Rapporteur on the Right to Food, 16 March 2006, E/CN.4/2006/44, at para. 47. 77 Ibid. 78 For a more detailed description of duties under European Law, see in this collection, U. Beyerlin in this book. 79 See on this principle for instance P. G. Harris, “Common but Differentiated Respon­ sibility”, in: N.Y .U Envtl. L. J. 8 (1999), 27 et seq.; A. Ali, “A Conceptual Framework for Environmental Justice based on Shared but Differentiated Responsibilities”, CSERGE (University of Norfolk) Working Paper, 1–2. 80 Para. 34 is part of III “States Parties’ Obligations” and furthermore classified under the subheading “International Obligations”. Therefore, the wording “States should facilitate

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about shared watercourses and supporting further research on the management of these waters. In terms of the obligation to ‘provide’ international water assistance, General Comment No. 15 states that it is incumbent on state parties to provide international assistance and cooperation, especially economic and technical, to enable developing countries to fulfill their core obligations.81 It is interesting that the General Comment in paragraph 38 finally makes use of the term ‘obligation to fulfill’. However, reading carefully, paragraph 38 refers to ‘their’ (ergo: the developing countries’) duty to fulfill. Thus, it falls on developed countries to help fulfillling this duty, thereby indirectly suggesting that the developed states do not have a duty of their own towards the developing states. Paragraph 35 of the General Comment also obligates state parties to give due attention to the right to water in international agreements. It recommends considering the development of further legal instruments on the right to water. Consequently, if taken seriously as a binding human right, states should, when concluding agreements about shared watercourses, take steps to ensure that the right to water is not adversely affected. They should regularly consider the mentioning of the right in any agreement on shared watercourses that they seek. Finally, paragraph 36 obliges states, as members of international organisations, as far as international financial institutions are concerned, to make sure that lending policies, credit agreements and other international measures take due account of the right to water. In the joint financing of water projects of co-riparian states, this obligation might hold particular relevance. Altogether, General Comment No. 15 suggests that the international obligation to fulfill is focused on the realization of ‘core obligations’. It is not an attempt to equalize economic conditions in developing and developed countries, be they co-riparian states or in no way related to each other. It is rather meant to ensure that the very basic standard of the realization of the right to water can be met everywhere. In this (restrictive) reading, co-riparian states might indeed share increased mutual responsibilities to fulfill the right to water. On the whole, the ICESCR generally and General Comment No. 15 specifically emphasize that all three obligations—to respect, protect and fulfill the right to water—carry significant international dimensions. The right to water, like rivers and aquifers, is particularly unique in that its realization steadily surpasses national borders. General Comment No. 15 was very much written in this spirit.

realization of the right to water in other countries” can be interpreted as referring to an international obligation. 81   General Comment No. 15, supra note 22, at para. 38: For the avoidance of any doubt, the Committee wishes to emphasize that it is par­ ticularly incumbent on States parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and techni­ cal which enables developing countries to fulfil their core obligations indicated in paragraph 37 supra.



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Thus, when states or international courts refer to the right to water in international water agreements or judgments, it is also to remind the relevant parties that the right can often only be realized through mutual water cooperation. VI. Effects on the Euphrates-Tigris Region and on the ‘Equitable Utilization’ and ‘No-significant-Harm’ Principles Focusing specifically on the Euphrates-Tigris region, what are the attitudes of the co-riparian states towards the right to water and what does it mean for the cooperation they owe each other? The two 2010 UN resolutions in the General Assembly and the Human Rights Council hold great relevance in identifying states’ attitude towards the right to water. As none of the three states were present at the vote in the Human Rights Council82—and thus no conclusions can be drawn from the voting behaviour of that resolution—the main indicator remaining is the voting behaviour and the statements delivered at the event of the General Assembly resolution. It is noteworthy that Iraq and Syria voted in favour of the General Assembly resolution, while Turkey abstained.83 However, looking into Turkey’s explanation of its voting behaviour, this abstention was by no means motivated by opposition to the right in general. Turkey declared explicitly that it was expecting the Human Rights Council to adopt a resolution on the right to water later in 2010 (as then happened). Turkey simply did not want to prejudge that process (so called Geneva-Process) by any hastily drafted General Assembly resolution.84 It thereby indirectly even expressed its support for the right to water, as the resolution in the Human Rights Council mirrored exactly the expected outcome of that Geneva-Process. Turkey also never objected to the resolution of the Human Rights Council in the aftermath of its adoption. In terms of the use of Euphrates and Tigris, Turkey traditionally, like most upstream states, strongly favours the equitable utilization rule (as enshrined in article 5 of the UN Watercourse Convention) assuming this notion gives Turkey more flexibility in making previously unexplored uses of the rivers.85 Syria and Iraq, like most downstream states, rather support the no-significant-harm rule (as established in article 7 UN Watercourse Convention) assuming this ­principle

82 See the composition of the Human Rights Council in 2010 and 2011, available at: . 83 See documentation of the vote at the end of document UN Doc. GA/10967 of 28 July 2010, Department of Public Information, News and Media Division. 84 See the statement of the Turkish representative Mr. Şen before the vote, UN Doc. A/64/L.63/Rev.1 of 26 July 2010. 85 S. C. McCaffrey / M. Sinjela, “The 1997 United Nations Convention on International Water­courses”, AJIL 92 (1998), 97 (101).

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­ rovides for stronger protection of established uses and also protects the downp stream states in times of crisis.86 The human right to water is not officially linked to one of these two principles (although article 10 (2) of the Convention accords special regard being given to “vital human needs” when different water uses are conflicting.) This neutrality is certainly deliberate (in order not to create opposition amongst supporters of the one or the other group). Although the hierarchy between both principles is not entirely clear within the law of transboundary watercourses, a contextual reading of article 5 and article 7 of the UN Watercourse Convention suggests no automatic primacy of the no-significant harm principle:87 Article 7 (2) clearly states that harm might be caused while not engaging the harming state’s responsibility. This is a clear indicator for such non-hierarchy. Article 7 also suggests that significant harm might have to be tolerated in certain situations as article 7 is only guaranteed with “due regard to the provisions of articles 5 and 6”. Despite the human right’s prima facie neutrality in terms of these two principles, it is the principle of no-significant harm that in truth holds the closer link to the human right to water. The right to water and the no-significant-harm principle share the character of guaranteeing protection against certain ­interferences—at all times. The equitable use principle is a standard of balancing different interests between co-riparian states. In this respect, taking the human right to water seriously suggests regularly strengthening the no-significant harm principle vis-à-vis the principle of equitable utilization when settling disputes. However, the opposite scenario is also quite possible: in some instances, the right to water would also provide a formidable argument for strengthening the equitable utilization rule, namely when exploring new projects and new uses of water explicitly serve to promote and develop the further enjoyment of the human right to water of the co-riparian populations. However, a strengthened human right to water puts more emphasis on the further prioritization of human uses of freshwater over other uses—in shared watercourses generally and in the Euphrates-Tigris region specifically. The right to water can serve as a forceful reminder for the co-riparian governments when designing policies for the Euphrates-Tigris region in the future that they serve not only their own state interests, but the interests of their people and the people of co-riparian states. VII. Conclusion and Outlook The human right to water has gained remarkable momentum in recent years. This was possible inter alia because for a long time it was very explicitly detached from 86 Ibid. 87 Ibid.



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the law of international watercourses: a field of law stuck in deadlock because the UN Watercourse Convention of 1997 is still not ratified by the mandatory 35 states, although some progress has recently been made. However, over recent years, the human right to water and the law of transboundary watercourses have started to draw closer to each other. With the right to water being more and more established—regardless of the question whether such a right is in the last stages of emergence or has already emerged—there no longer seemed a significant risk from the perspective of the human right to connect with the issue of shared watercourses. From the converse perspective— the one of the law of transboundary watercourses—a greater connection of both topics seems in fact desirable: the law of international watercourses, in deadlock since 1997, can only benefit from the vibrant path that the human right to water has recently taken. This trend of connecting both topics can be observed in some recent agreements on international watercourses, most strikingly in the charters on the Senegal and the Niger River. In both agreements, there are clear and direct references to the human right to water that the co-riparian states feel committed to: whatever use is intended by the state parties for the shared waterbody, it cannot jeopardize the realization of the human right to water of the populations. Thus, states must prioritize uses for human consumption over economic uses. The rights of individuals have, forcefully and irrevocably, entered the discussion on transboundary watercourses. This is an important reminder for states that they are trustees rather than owners when dealing with common goods of their people such as freshwater resources. If accepted as a legally-binding human right—and if accepted in the form suggested by the CESCR in General Comment No. 15—all forms of the obligations to respect, to protect and to fulfill can also be seen in an international light. The general assumption remains that the primary subject of international law owing respect, protection and fulfillment of human rights is the state in whose territory and jurisdiction the rights-holders find themselves. However, for the category of economic and social rights, this limitation is less strict. The fulfillment of these human rights is often not possible, if confined to state borders alone. As General Comment No. 15 suggests, states hold a responsibility not only to respect, protect and fulfill the rights of individuals in their own sphere, but must also support the respect, protection and fulfillment of the rights of individuals in other states. In this light, the right to water strengthens the obligation for states sharing watercourses to cooperate and to facilitate the enjoyment of the right on the other side of the riverbank as well. This is true generally and in particular for the Euphrates-Tigris region. All riparian states of the Euphrates and Tigris region have, in one way or another, expressed their support for the acceptance of a human right to water in international law. They must also stand by this commitment when dealing with their shared waters of the Euphrates and Tigris rivers.

PART II

The Use of Waters of the Euphrates and Tigris

Chapter Four

Transboundary Water Relations in the Euphrates and Tigris Region Aysegül Kibaroglu

I. Introduction1 The current transboundary2 water dispute in the Euphrates and Tigris region was originally due to the emergence of large-scale water development projects initiated by the three riparians, namely Turkey, Syria and Iraq, in the early 1960s in competition with one another. The aim of these dam projects3 was to control and harness the waters of the two rivers, particularly at times of flooding and drought. At national level, other interests identified subsequently were the generation of hydropower and the provision of water for irrigation and drinking purposes. At transboundary level, however, water development projects were implemented in an uncoordinated fashion and increased the pressure on the limited supply of water in the rivers. As demand for water exceeded supply, the water authorities attempted to engage in dialogue and set up ad hoc institutions for negotiations. However, political rivalries among the riparians during the Cold War prevented any fruitful cooperation from taking root. The political circumstances of the Cold War, with Turkey a member of NATO and Syria and Iraq allied with the

1   Some of the discussions in this section are drawn from A. Kibaroglu / W. Scheumann, “Evolution of Transboundary Politics in the Euphrates-Tigris River System: New Per­ spectives and Political Challenges,” Global Governance: A Review of Multilateralism and International Organizations 19 (2013), 279–305. 2 The term ‘transboundary’ is used without prejudice to the divergent positions taken by the riparian states for the distinction between ‘international’ and ‘transboundary’; see A. Kirschner / K. Tiroch, “Sharing and Protecting the Euphrates and Tigris: Legal Status Quo” in this book. 3 For further discussion on dam development and international water law in the Euphra­ tes Tigris region see N. Bremer, “Dams on Euphrates and Tigris: Impacts, Conflict and Regulation” in this book.

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Soviet Union, aggravated the disputes over water. Transboundary water issues moved up the political ladder in the 1980s and became one of the main bones of contention on the foreign policy agendas of any pair of the three riparians. Water was regarded as one of the security issues between Turkey and Syria, along with other such thorny problems as border security and territorial claims. The Baathist regimes in power in both Syria and Iraq were in regional rivalry, and there were moments (as during the 1975 crisis) when water use in the Euphrates river basin became a pretext for the two regimes to come close to the brink of war. Though always marked by harsh rhetoric, Turkish-Iraqi relations were manageable by comparison, with the positive ramifications of complementary economies and a significant volume of trade as a result. With the turning of the millennium, bilateral political relations between Turkey and Syria became conducive to transboundary water dialogue. In this context, contacts were established at governmental and non-governmental level, with the focus particularly on water and regional development, and a series of protocols were signed to enable further cooperation. The regime change in Iraq created both uncertainties and opportunities. The Iraqi government(s) joined in the trilateral ministerial dialogue on water issues and even signed separate protocols with Turkey and Syria, which broadly addressed transboundary water use and management. However, the Iraqi parliament constantly criticised Turkey’s use of water upstream and became vocal over water rights. Even though Syrian-Iraqi relations experienced remarkable developments when new diplomatic relations were established in 2006, they were damaged again recently as a result of the border tensions and related political disputes that have arisen with the eruption of civil disorder in Syria. The recent domestic political unrest in Syria, ongoing since March 2011, has also led to the severing of bilateral political relations with Turkey and the blocking of any further transboundary water cooperation. This contribution discusses transboundary water relations in the EuphratesTigris region in its historical context, by paying particular attention to the reasons behind the water dispute and the institutions created at transboundary level for settling the dispute. II. Geography and Hydrology4 Turkey, Syria and Iraq constitute the main riparian states of the Euphrates and Tigris rivers. Iran is also a riparian in that it contributes between 9.7 and 11.2 bcm of water a year to the Tigris through its tributaries in the north and between 20

4 For further discussion on hydrology of the Euphrates and Tigris rivers see J. Cullmann, “Hydrology” in this book.



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and 24.8 bcm to the Shatt al-Arab waterway, which unites the Tigris and the Euphrates through the river Kharun.5 Total annual mean discharge (natural flow) of ‘the Euphrates’ is about 32 bcm whereas ‘the Tigris’ provides 52 bcm of total water supply annually in normal weather conditions.6 The Euphrates and the Tigris rivers start to flow scarcely 30 km from each other in the mountains of eastern Turkey, and travel southeast through Syria and Iraq to the Gulf.7 Of the Euphrates basin 28 % lies in Turkey, 17 % in Syria, 40 % in Iraq, 15 % in Saudi Arabia, and just 0.03 % in Jordan. The Euphrates river is 3,000 km long, divided between Turkey (1,230 km), Syria (710 km), and Iraq (1,060 km), whereas 62 % of the catchment area that produces inputs into the river is situated in Turkey and 38 % in Syria. It is estimated that Turkey contributes 89 % of the annual flow and Syria 11 %. The remaining basin countries contribute very little water.8 The Tigris river is 1,850 km long, with 400 km in Turkey, 32 km on the border between Turkey and Syria and 1,418 km in Iraq. Of the Tigris basin 12 % lies in Turkey, 0.2 % in Syria, 54 % in Iraq and 34 % in Iran. Turkey provides 51 %, Iraq 39 %, and Iran 10 % of the annual water volume of the Tigris.9 The amount of water available in the Euphrates-Tigris region is said to be generally enough for the vital needs of the three riparians. Yet, during the technical negotiations in the 1980s, the riparian governments declared their needs from both rivers, which indicated that total demand of the three riparians far exceeds the supply of each river, especially in the case of the Euphrates. Hence, there are mismatches between supply (average discharge) and demand in the EuphratesTigris region. Moreover, the Euphrates and Tigris rivers have extremely high seasonal and multi-annual variance in their flow. Further, the natural flows of both rivers (supply) passing from Turkey to Syria, and from Syria to Iraq change due to irrigation and energy projects that the riparians have already initiated. The rapidly increasing populations of these countries and the importance given to agricultural development and food production necessitate further utilization of these rivers.10

   5 See FAO, “Irrigation in the Middle East Region in Figures”, Aquastat Water Reports 34 (2009), 63–70, available at: .    6 J. F. Kolars / W. A. Mitchell, The Euphrates River and Southeast Anatolia Development Project, 1991, 3–8.    7 A. Kibaroglu / W. Scheumann, “Euphrates-Tigris River System: Political Rapproache­ ment and Transboundary Water Cooperation”, in: A. Kibaroglu et al. (eds), Turkey’s Water Policy: National Frameworks and International Cooperation, 2011, 277–301.    8 FAO, supra note 5.    9 Ibid. 10 A. Kibaroglu, Building a Regime for the Waters of the Euphrates-Tigris River Basin, 2002, 166–169.

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III. Harmonious Relations in the Region (First Half of the 20th Century) Hydropolitical relations among the three riparians in the Euphrates-Tigris region, namely Turkey, Syria and Iraq during the period between 1920s and 1960s could be characterized as harmonious. None of the countries were engaged in major development projects that could have resulted in excessive consumptive utilization of the Euphrates and Tigris rivers. Even the inefficient and ineffective development and management practices of the three riparians did not have substantial negative impacts on the quantity or quality of the waters.11 While particular treaties were signed either between the mandate power France (on behalf of Syria) and Turkey, or between Turkey and Iraq, such treaties had little significance as the riparians were utilizing very little amounts of water at the time and did not need to seriously call on the treaties to resolve disputes. The first legal arrangement among the riparians was an agreement signed by France and Turkey in Ankara on 20 October 1921 with a view to promoting peace between the two countries. Under article XII of that treaty concerning the ­‘Distribution and Removal of Waters’ it was agreed that “the city of Aleppo may also organize, at its own expense, a water-supply from the Euphrates in Turkish territory in order to meet the requirements of the district.”12 Article 109 of the 1923 Lausanne Peace Treaty covers another legal aspect of the issue, stating that, if, the fixing of a new frontier results in the river system of one state being dependent on facilities that were established before the war and are now located within the borders of another state, the parties concerned must conclude an agreement which is capable of safeguarding their respective interests and sovereign rights and that, in the absence of an agreement, the dispute will be settled by arbitration.13 In that period, one of the most important legal texts, which sets the harmonious relations between Iraq and Turkey as relates to the water resources of the Euphrates and Tigris rivers and their tributaries is the Protocol annexed to the 1946 Treaty of Friendship and Good Neighbourly Relations.14 The protocol provides a framework for the two parties to deal with their respective interests along 11   A. Kibaroglu / O. Unver, “An Institutional Framework for Facilitating Cooperation in the Euphrates-Tigris River Basin”, International Negotiation: A Journal of Theory and Practice 5 (2000), 312. 12 Agreement with a View to Promoting Peace, with Protocol relating thereto, Protocol concerning its coming into force, and Exchange of Notes (signed 20 October 1921, ente­ red into force 28 October 1921), UNTS Vol. 54 No. 1284. 13 Treaty of Peace with Turkey, with related Documents (signed 24 July 1923), UNTS Vol. 28 No. 701. 14 Treaty of Friendship and Good Neighbourly Relations between Iraq and Turkey, and Six Annexed Protocols (signed 29 March 1946, entered into force 10 May 1948), UNTS Vol. 37 No. 580.



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the rivers’ system. It emphasises the urgency of installing flood control works on the rivers and underlines the positive impact that storage facilities sited on Turkish soil would have for both. The parties agreed that, if the most suitable sites were on Turkish territory, the entire cost would be met by Iraq. Permanent observation stations would be built, operated and maintained by Turkey, with Turkey and Iraq sharing the costs equally. Turkey agreed to inform Iraq of its construction plans and, if it determined it needed water for irrigation and hydropower purposes, separate negotiations would be held.15 In recognizing rights and obligations for both the upstream and downstream states, the protocol seems quite well-adjusted, since contemporary bilateral water treaties such as the 1987 Protocol between Turkey and Syria and the 1990 Protocol between Syria and Iraq (presented in detail in the following related section) seem less balanced in their recognition of upper and lower riparian rights and obligations. During this initial period, the riparian countries were mainly concerned with water supply for urban and rural populations. Bureaucracies with technical expertise were busy with the initial organizational set-up and the planning of irrigation systems and dam construction. Transboundary waters were the subject of domestic planning and development exercises and had little to do with the foreign policy agenda.16 IV. Hydraulic Mission17 (From the 1950s to 1990s) The water question emerged on the regional agenda in the Euphrates-Tigris region when the three riparians initiated major water and land resources development projects. It is only since the 1960s that Turkey and Syria have put forward ambitious plans to develop the waters of the Euphrates and Tigris rivers for energy and irrigation purposes. Iraq also announced new schemes for an extension of its irrigated area in the same period.18

15 Treaty of Friendship and Good Neighbourly Relations between Iraq and Turkey, and Six Annexed Protocols, supra note 14. 16 Kibaroglu / Scheumann, supra note 1, at 283. 17 The first 75 years of the 20th century witnessed concerted efforts, especially in the industrialized world, to build up physical structures, namely dams and irrigation canals. The accelerated effort of building thousands of water resources infrastructure systems is called the ‘hydraulic mission’. The hydraulic mission, which was first and most fully implemented in the industrialized countries, proved to be readily exportable to the devel­ oping countries in the second half of the twentieth century, including the riparian states of the Euphrates-Tigris region. See J. A. Allan, “Integrated Water Resources Management is a more Political than a Technical Challenge”, in: A. S. Alsharhan / W. W. Wood (eds), Water Resources Perspectives: Evaluation, Management and Policy, 2003, 9. 18 Kibaroglu, supra note 10, at 221.

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Turkey had been planning to develop the Euphrates waters since the mid1950s. The construction of the Keban Dam started in 1965. Since, the Keban Project was solely a hydropower project it caused no loss of water potential to the downstream riparians. Construction of the Karakaya Dam, further downstream from Keban started in 1976. Karakaya entered service in 1987, while work on the Atatürk Dam had been under way since 1980. Consequently, the construction of these three major dams, which were originally planned to be a part of a Lower Euphrates project initiated the most ambitious development scheme in Turkey, namely the Southeastern Anatolia Project (GAP, Turkish acronym) in 1980. GAP is designed to develop the waters of the Euphrates and Tigris rivers for hydroelectric power generation and irrigation. Within the framework of the GAP, it was expected that 27 billion kilowatt-hours of hydroelectric energy would be generated annually, and 1.7 million ha of land would be irrigated, accounting for nearly one-fifth of the irrigable land of Turkey. This would be accomplished through the construction of 22 dams, 19 hydropower plants, and extensive irrigation and drainage networks. As of 2012 74 % of the energy schemes (installed capacity) and 17.3 % (313,165 ha) of the irrigation systems have been completed.19 Syria initiated the Euphrates Valley Project in the early 1960s. In this context, in 1963, the Government of Syria decided to build a large dam on the Euphrates river as a response to the country’s increasing energy and food needs.20 The Tabqa Dam (renamed Al-Thawra meaning ‘revolution’ in Arabic) became operational in 1973. The government set a number of objectives to be followed in the context of the Euphrates Valley Project: irrigating an area as wide as 640,000 ha—an area which has been downsized over the years; generation of electric energy needed for urban use and industrial development; and regulating the flow of Euphrates in order to prevent seasonal flooding. Based on various official sources and her compilation Marwa Daoudy presented the completed irrigation areas to amount to 113,155 ha in the Euphrates basin in Syria.21 In Iraq, total gross dam capacity of the major dams in the Tigris basin is estimated at 102.2 bcm, of which on-river dam capacity is 29.4 bcm (7 dams). The off-river storage Samarra-Tharthar Dam, constructed in 1954, has a capacity of 72.8 bcm. It is filled with Wadi Tharthar waters and, since 1985, also with Euphrates water. Total gross capacity of the major dams in the Euphrates basin, in Iraq, is estimated at 37.5 bcm, of which on-river dam capacity is 34.2 bcm. The off-river Ramadi-Habbaniya Dam, constructed in 1951, has a capacity of

19   GAP Administration, Latest Status of the GAP, 2012, available at: . 20 See J. A. Allan, Developing Euphrates Water in Syria: The Plans and Their Realisations 1946–86, 1986. 21   M  . Daoudy, The Water Divide between Syria, Turkey and Iraq, Negotiation, Security and Power Asymmetry, 2005, 85–95.



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3.3 bcm; it can be filled with upstream Euphrates waters and drains into the Euphrates downstream.22 The keystone of Iraq’s water development scheme is the vast Thartar Canal (Depression) between the Tigris and the Euphrates northwest of Baghdad with a surface area of 2,710 km2. Its vast total capacity is twice that of the Atatürk Dam and as much as the active capacity of the Aswan Dam. It is filled by diverting water from the Tigris at the Samara Dam to protect Baghdad against the dangers of flooding. Moreover, with the Thartar Canal, Iraq has already been able to alleviate water shortages within the Euphrates basin by diverting the Tigris water (where Iraq has a surplus) into Lake Thartar and then into the Euphrates when there is not enough water to feed the dependent irrigation projects. Taking into consideration the constraints of water salinity in the Thartar Canal and the amount of water that can be stored and transferred from the Tigris to the Thartar Lake reservoir, it may be assumed that about 6 bcm of water could be transferred annually from the Thartar reservoir to the Euphrates river.23 During the hydraulic mission, Iran also developed water resources, yet water use for consumptive uses such as irrigation and domestic uses or for hydropower in the Tigris basin did not cause transboundary water sharing disputes between Iran and Iraq during this period. Dams have always played an important role in harnessing Iranian water reserves and the long-term objective of the Islamic Republic of Iran’s water resources development plan is based on the control and regulation of water resources through dams.24 V. Rising of the Transboundary Waters Disputes (From the 1960s to 1990s) Owing to the competitive and uncoordinated nature of these water development projects, disagreements over transboundary water uses surfaced in the late 1960s. During this period, transboundary water issues were regarded by each country’s political leadership as falling within the middle range of economic and technical objectives, which could be handled by official technical delegations. The main theme of these technical negotiations was the impact of the construction of the Keban Dam in Turkey and the Tabqa Dam in Syria on Iraq’s historical water use patterns. While Turkey suggested the establishment of a joint technical committee to determine the water and irrigation needs of the riparians, Iraq insisted on a guarantee of specific flows and a water-sharing agreement. While Turkey released

22 FAO, supra note 5, at 67. 23 Ibid. 24 FAO, Aquastat, Iran, 2008, see .

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certain flows during the construction and impounding of the Keban Dam, no final allocation agreement was reached even after numerous technical meetings.25 These meetings did not achieve the expressed aim of coordinating the water development and use patterns of the three riparians. Turkey began impounding the Keban reservoir at the same time as Syria was completing the construction of the Tabqa Dam—during a period of severe drought. The impounding of the two reservoirs triggered a crisis in the spring of 1975. Iraq accused Syria of reducing the river’s flow to intolerable levels, while Syria blamed Turkey. The Iraqi government was not satisfied with the Syrian response, and the mounting frustration resulted in mutual threats that brought the parties to the brink of armed hostility. A war over water was averted when, thanks to Saudi Arabia’s mediation, Syria released additional quantities of water to Iraq.26 1. Joint Technical Committee In the early 1980s, the imminent interest in use of the Euphrates and Tigris by Turkey created new demands for cooperation. Because the issues involved in water development schemes along the Tigris and Euphrates are so complex and far-reaching, the three riparians had to find ways of structuring the dialogue among them. Hence, this time Iraq took the initiative for the formation of a permanent Joint Technical Committee (JTC). At the end of the first meeting of the Joint Economic Commission27 between Turkey and Iraq in 1980, a new JTC was established to discuss and finalize the water issue among the riparians. Syria joined the JTC in 1983 whereupon Turkey, Syria, and Iraq held sixteen meetings up to 1993. The essential mandate given to the JTC was defined to be determining the methods and procedures that would lead to a definition of the reasonable and appropriate amount of water that each country would need from both rivers. The major items on the agenda of the JTC were the exchange of hydrological and meteorological data and information on the Euphrates-Tigris region, the sharing of information on progress achieved in the construction of dams and irrigation schemes in the three riparian countries, and the discussion of initial plans for filling the Karakaya and Atatürk Reservoirs.28 However, after sixteen meetings, the JTC proved unable to fulfill its objectives and the talks became deadlocked and failed to produce even outlines of its meetings. The major issues that led to the deadlock were related to both the 25 Kibaroglu / Unver, supra note 11, at 311–330. 26 Kibaroglu, supra note 10, at 226. 27 Joint Economic Commission (JEC) Meetings is a platform where bilateral commercial and economic matters that are covered in the commercial, economic and industrial cooperation agreements concluded between Turkey and certain countries are dis­ cussed at the highest level and in the most comprehensive way. See for further details . 28 Supra note 27.



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subject and the object of negotiations: whether the Euphrates and the Tigris were to be considered a single system or whether the discussions could be limited exclusively to the Euphrates. The wording of the final objective of the JTC, i.e. reaching a common terminology, was also problematic: whether to formulate a proposal for the ‘sharing’ of ‘international rivers’, or to achieve a trilateral regime for determining the ‘allocation of transboundary watercourses’. Iraq and Syria consider the Euphrates an ‘international’ river and insisted on an immediate sharing agreement under which the waters of the Euphrates would be shared on the basis of each country stating its water needs. On the other hand, Turkey regarded the Euphrates and Tigris as forming a single ‘transboundary’ river basin where the waters should be ‘allocated’ according to the objective needs.29 The JTC meetings, at which claims and counter-claims concerning the use of the rivers and the nature of customary international water law were voiced, did not make an effective contribution to the settlement of the regional water dispute. The JTC did not provide a platform for delineating the co-riparians’ priorities and needs as a basis for addressing regional water problems such as shortages and contamination of regional waters as well as the severe impacts of droughts. In this respect, water use patterns and the riparians’ related legislation and institutional structures never had a chance of being discussed at the JTC meetings. National management and allocation policies and water management practices within the riparian countries simply could not be debated during those negotiations.30 2. Bilateral Treaties for Water Allocation31 a. The Protocol of 1987 between Turkey and Syria The Turkish-Syrian Joint Economic Commission meeting on 17 July 1987 had an important outcome regarding negotiations on the water issue. The Protocol of Economic Cooperation signed by Turkey and Syria at the end of the meeting included provisions for water. It is important to note that the Protocol was regarded as a temporary arrangement. The text of article 6 of the Protocol reads as follows: During the filling up period of the Atatürk dam reservoir and until the final allocation of the waters of Euphrates among the three riparian countries the Turkish side undertakes to release a yearly average of more than 500 m3/sec at the Turkish-Syrian

29 Ibid. 30 Kibaroglu / Scheumann, supra note 1, at 287. 31     For further discussion on the water treaties in the Euphrates Tigris region see Kirschner / Tiroch, supra note 2.

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b. Water Allocation Agreement between Syria and Iraq: The Protocol of 1989 Syria and Iraq perceived the interruption to the flow of the Euphrates due to the impounding of the Atatürk Dam as the beginning of many such interruptions that would be the consequence of the envisaged projects within the framework of GAP. Hence, the thirteenth meeting of the JTC, held in Baghdad on 16 April 1989, provided the occasion for a bilateral accord between Syria and Iraq, according to which 58 % of the Euphrates water coming from Turkey would be released to Iraq by Syria.33 However, the existence of these bilateral accords, both relating only to the Euphrates, could not be accepted as evidence of basin-wide cooperation. Both agreements were bilateral and predominantly concerned with water quantity issues. The riparians could not agree on more comprehensive forms of cooperation that would adopt an integrated approach to the various aspects of water use and needs (quality, quantity, flood protection, preservation of ecosystems and prevention of accidents) and might potentially facilitate negotiations by linking water management issues. The agreements lacked effective organizational back-up, at least in the form of joint monitoring. Most critically, both treaties failed to address fluctuations in flow, meaning that they contained no clauses referring to the periods of drought which frequently occur in the basin and cause drastic changes in the flow regime, requiring urgent adjustment to the use of the rivers.34 3. The Three Stage Plan of Turkey As a result of his empirical work on the water negotiations that have taken place regarding various transboundary river basins, A. T. Wolf concludes that in almost all of the disputes that have been resolved, particularly on arid or exotic streams, the paradigms used for negotiations have not been ‘rights-based’ at all—neither on relative hydrography nor specifically on chronology of use—but rather ‘needsbased’. ‘Needs’ can be defined by one or a combination of the following: irrigable land, population, or the requirements of a specific project, or a sector.35

32 Para. 6 Protocol on Matters Pertaining to Economic Cooperation between Turkey and the Syrian Arab Republic (signed and entered into force 17 July 1987) UNTS Vol. 1724 No. 30069. 33 Para. 1 Joint Minutes Concerning the provisional Division of the Waters of the Euphra­ tes River (Iraq-Syria) (signed 17 April 1989), available at: . 34 Kibaroglu / Scheumann, supra note 1, 288. 35 A. T. Wolf, “Criteria for Equitable Allocations: The Heart of International Water Con­ flict”, Natural Resources Forum 23 (1999), 3 (30).



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Turkey’s needs-based approach was expressed in the ‘Three-Stage Plan’ put forward by Turkish technocrats. According to this, inventory studies of water and land resources throughout the region comprising the territories of the various states would be undertaken and jointly evaluated. On the basis of these studies, the means and measures needed to attain the most reasonable, optimum utilization of resources would be defined. Although founded on principles of scientific rationality, the likely result of the acceptance of Turkey’s proposal as a basis for tripartite negotiations would be to reveal the lesser viability of Syria’s and Iraq’s irrigation expansion plans, which would, of course, be unacceptable to them.36 On the other hand, Syria and Iraq insisted on an immediate agreement under which the waters of the Euphrates would be shared on the basis of the water rights claimed by each country. Both countries asserted that, as the annual average flow of the Euphrates river was around 1,000 m3/s, Turkey should keep only one-third of the flow for itself and allow the remaining two thirds to be shared by Syria and Iraq.37 VI. Emergence of Cooperation Frameworks (1990s-onwards) Beginning in the late 1990s, however, the opportunity for a lasting solution over the Euphrates and Tigris rivers has been an emerging trend as cooperation, mainly in the security domain, has intensified between two of its major riparian states, Turkey and Syria. It is important to note that, in 1998, Turkish-Syrian relations became very tense when Turkey threatened Syria with all appropriate measures if it continued to support the PKK, the Kurdish separatist terrorist organization. War was prevented by the mediation of Egypt and Iran. Syria decided not to risk a war and expelled the PKK leader, who was subsequently captured in February 1999. This event paved the way for the conclusion of the Turkish-Syrian Ceyhan Security Agreement in October 1998,38 which marked the beginning of a new era that is based on more cooperative initiatives of interest to both sides. One of the first initiatives was a joint communiqué signed between Southeastern Anatolia Project Regional Development Administration from Turkey and the General Organization for Land Development (GOLD), under the Syrian Ministry of Irrigation, in 2001.39 Even though the dialogue between these two leading institutions has not resulted in concrete project implementation or regular 36 P. A. Williams, “Turkey’s Water Diplomacy: A Theoretical Discussion”, in: Kibaroglu, supra note 7, at 197. 37 Kibaroglu / Scheumann, supra note 1, 287. 38 Hurriyet, 21 October 1998. 39 A joint Communiqué between the Republic of Turkey, Prime Ministry, Southeastern Anatolia Project Regional Development Administration and the Syrian Arab Republic, Ministry of Irrigation, General Organization for Land Development, 23 August 2001, Ankara, Turkey, on file with author.

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exchange programmes, it has served as a semi-formal consultation mechanism and paved the way for initiatives taken by other government departments and agencies in 2008 and 2009 with the similar objective of solving transboundary water problems within a broader framework of political, economic and social development. Once again the water issue was relegated to the technical level and was handled by intergovernmental networks composed of technocrats. GAP-GOLD cooperation is based on the common understanding of the sustainable utilization of the region’s land and water resources through conducting joint rural development and environmental protection projects, joint training programs, expert and technology exchanges, and study missions. Syrian and Turkish delegations paid visits to each other’s development project sites. During these contacts they had opportunities to exchange experiences pertaining to the positive and negative impacts of the decades’ old water and land resources development projects. Unlike the technical negotiations in the 1960s, the GAP-GOLD dialogue included diversified issues such as urban and rural water quality management, rural development, participatory irrigation management and agricultural research.40 1. New Perspectives on Transboundary Water Issues In 2008, the governments of Turkey, Syria and Iraq embarked upon cooperative foreign policy initiatives. The political reasons behind these initiatives can be analyzed at contextual, regional, bilateral and domestic levels, the analysis of which is beyond the focus of this contribution.41 However, the political will expressed and sealed at the highest levels has also reflected on cooperative initiatives related to transboundary water development and management in the Euphrates and Tigris region. In this context, Turkey and Iraq signed the Joint Political Declaration on the Establishment of the High-Level Strategic Cooperation Council (HSCC) on 10 July 2008.42 Accordingly, the first ministerial meeting under the HSCC, a mechanism of joint meetings of the Iraqi and Turkish cabinets, jointly led by Turkish Foreign Minister and his Iraqi counterpart occurred on 17–18 September 2009 in Istanbul. According to the strategic partnership agreement signed between Ankara and Baghdad, the HSCC would meet at least once a year, with the prime ministers of the two countries presiding over the meeting. The ministerial level mechanism, meanwhile, would meet at least three times a year, while technical delegations

40 A. Kibaroglu / W. Scheumann, “Euphrates Tigris Rivers System: Political Rapprochement and Transboundary Water Cooperation”, in: Kibaroglu, supra note 7, at 270 (290–291). 41 M. Altunisik / L. G. Martin, “Making Sense of the Turkish Foreign Policy in the Middle East under AKP”, Turkish Studies (2011) 12. 42 See .



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would come together four times a year. Decisions made at the HSCC would be implemented through an action plan. On the other side, a similar bilateral HSCC was created between Turkey and Syria, which met in Damascus on 22–23 December 2009. A short while after the Turkish-Syrian Strategic Cooperation Council Agreement was signed on 13 October 2009, and following a ministerial meeting which took place in Aleppo and Gaziantep with the contribution of various ministers, the Council’s meeting at the prime ministerial level gave clues about the progressive approach adopted in Ankara-Damascus relations, and possibly paved the way beyond good wishes towards more institutional and concrete steps and processes.43  Broadening the scope of the cooperation agenda to take in sectors of socioeconomic development, including water, and simultaneously fostering a situation of regional interdependence were in fact the main aims underlying the establishment of both the Turkish-Syrian and Turkish-Iraqi HSCCs, which were set up to address more than the water predicament in the region. However, the comprehensive and strategic nature of the HSCCs resulted in an innovative approach to transboundary water issues in that the water and diplomatic bureaucracies were empowered to draft and sign a series of memorandum of understandings addressing problems associated with water development, management and use. a. The Memorandum of Understanding on Water between Turkey and Iraq Forty eight Memoranda of Understandings (MoU) were signed between Turkey and Iraq on 15 October 2009 during the HSCC meeting, one of which was on ‘water’. Even though it is not indicated in the title44 of the MoU there are references in the MoU to the fact that it is about the ‘waters’ of the ‘Euphrates and Tigris’ rivers. In line with the functional approach envisaged, the MoU was signed between the Iraqi Ministry of Water Resources and the Turkish Ministry of Environment and Forestry, which are the government bureaucracies who are in charge of all technical matters, including particularly water development and management and protection of the water resources. In article 2, the MoU identified particular issues in need of urgent transboundary cooperation such as: assessment of water resources which tend to diminish because of the increase in water use and as a result of climate change; assessment and calibration of existing hydrological measurement stations; modernization of existing irrigation

43 “Turkey, Syria Renew Diplomatic Pledges”, Hurriyet Daily News, 21 of December 2010, available at: . 44 The Memorandum of Understanding (MoU) between the Ministry of Environment and Forestry of the Republic of Turkey and the Ministry of Water Resources of the Repub­ lic of Iraq on Water, (15 October 2009) (published in Turkish on the Turkish Grand National Assembly website) on file with the author.

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systems; preventing water loss in domestic water supply and provision of safe water; construction of water supply and water treatment facilities in Iraq with the participation of Turkish companies; developing mechanisms to solve problems arising during periods of drought; conducting joint investigation, planning and projects aimed at flood protection.45 In article 3, modalities of cooperation are also described in the MoU. The parties agree to transfer knowledge, experience and technology on water management practices by developing cooperation projects, and conducting Research and Development (R&D) activities. It is interesting to note that rather than arguing only for their water shares, as happened in the past during the JTC meetings, concerned authorities in Iraq and Turkey preferred to agree on addressing and solving some common issues of concern in transboundary water management and use. Those issues are directly related to water development, use and management practices at national levels, which actually have direct impacts on transboundary water policies and practices. The MoU also specifically addresses emerging regional (even global) issues such as the impacts of climate change on regional water resources, which had been neglected for decades. Another distinguishing characteristic of the MoU (article 5) is that it envisages involving non-­governmental entities such as academic institutions, private firms and non-governmental organizations (NGOs) to join activities within the framework of the MoU.46 b. The Memorandum of Understanding on the Tigris Waters On December 23 and 24, 2009 Turkey and Syria signed fifty MoUs at the first meeting of the HSCC in Damascus including four, which are related to regional waters, namely the Euphrates, Tigris and the Orontes.47 Turkey and Syria signed the MoU on the Tigris under which Turkey agreed that Syria could pump 1.25 bcm of water from the Tigris annually, when the flow of water is within the average.48 The water withdrawals are arranged according to monthly flows, and it is indicated that pumping will be done when

45 Kibaroglu / Scheumann, supra note 1, 292. 46 Ibid. 47 The Memorandum of Understanding Between the Government of the Republic of Tur­ key and the Government of the Syrian Arab Republic for the Construction of a Joint Dam on the Orontes River Under the Name ‘Friendship Dam’, (23 December 2009) (published in Turkish on the Turkish Grand National Assembly website), on file with the author. 48 The Memorandum of Understanding Between the Government of the Republic of Tur­ key and the Government of the Syrian Arab Republic on Establishment of a Pump­ ing Station in the Territories of Syrian Arab Republic for Water Withdrawal From the Tigris River, December 23, 2009, (published in Turkish at the Turkish Grand National Assembly website) on file with the author.



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time and place allows.49 This MoU may enable Syrian authorities to expand irrigation in the north-eastern Syria by pumping water from the Tigris river, which forms the boundary between Turkey and Syria and between Syria and Iraq. From the Turkish point of view, achieving an agreement with Syria about the use of the Tigris waters is real progress in terms of developing a regional understanding on transboundary waters which includes both Euphrates and Tigris waters.50 c. Memoranda of Understandings on Water Efficiency, Drought Management and Quality Remediation Two more MoU signed between Turkey and Syria include issues which have only recently entered the agenda of transboundary water negotiations among the concerned technocrats and diplomats.51 In this respect, it is interesting to note that within a framework of an official agreement the parties have dealt, for the first time, with the protection of environment, management of water resources quality, and scrutinized the issues of water efficiency, drought management and flood protection in tackling with the negative impacts of climate change. As opposed to the bilateral agreement concluded in 1987 on sharing the waters of the Euphrates, these MoUs have focused on how the riparian states use, manage, protect and develop the diminishing water resources of the Euphrates and Tigris rivers. Analyzing the wording of these two MoUs reveals that water bureaucracies (technocrats) have had a chance to address urgent problems of acute shortages and quality deterioration of water resources, based on the political will expressed at the highest level of the HSCC. The parties no longer adopted only reserved and rigid positions about their water shares and rights, but openly discussed new and efficient methods and procedures to manage water supply and demand for agricultural, industrial and domestic uses. Hence, the issues covered in the MoUs are

49 In 2002, a bilateral agreement between Syria and Iraq was signed concerning the instal­ lation of a Syrian pump station on the Tigris river for irrigation purposes. The quantity of water drawn annually from the Tigris river, when the flow of water is within the average, will be 1.25 bcm with a drainage capacity proportional to the projected sur­face of 150,000 ha. Personal communication with the Turkish officials at the Ministry of Foreign Affairs and State Hydraulic Works (DSI, Turkish acronym), January 2010. 50 Kibaroglu / Scheumann, supra note 1, 293. 51   Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Efficient Utilization of Water Resources and Combating Drought (23 September 2009); Memorandum of Understanding between the Government of the Republic of Turkey and the Gov­ ernment of the Syrian Arab Republic in the Field of Remediation of Water Quality (23 December 2009), (published in Turkish at the Turkish Grand National Assembly website) on file with the author. “Joint Statement of the First Meeting of the High-Level Strategic Cooperation Council between Syria and Turkey”, Syrian Arab News Agency, 24 December 2009.

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diversified, ranging from various ways of supply management such as cloud seeding (artificial rain) to increase precipitation, installation of early flood warning systems and flood protection measures, agricultural practices with drought resistant crops; to various ways and means of demand management such as sharing of knowledge and experience on modern irrigation techniques, prevention of water loss in domestic water supply; organization of training programs on the operation of dams and efficient utilization of water resources; sharing knowledge and technology pertaining to waste water storage and reuse of treated waste water in agriculture and industry; cooperation on the development of land use techniques to increase saving of soil water.52 The general approach and the content of the MoUs also display the fact that Turkey’s firsthand experience with the European Union’s water policy and water management approach is broadly translated to the envisioned principles in the MoUs. Hence, the Turkish bureaucracy of the Ministry of Environment and Forestry (MoEF),53 in particular, is interested in implementing these MoUs as, in their contention, implementation of them would be a useful practice for the implementation and extension of the new water legislation in Turkey.54 In this respect, the ‘river basin level’ water management approach, which is adopted from the European Union water legislation, namely the EU Water Framework Directive (2000) would be practiced not only at the national river basins of Turkey but at the transboundary river basins such as the Euphrates, Tigris, and Orontes. Moreover, adopting common standards for measuring (gauging) water resources quantity and monitoring of the transboundary water quality are also one of the main objectives of the MoEF particularly as relates to their cooperation with Syria and Iraq. In this context, one of the main aims of the Turkish bureaucracy is to establish environmental quality standards and to implement polluter pays and cost recovery principles at the transboundary level as the relevant MoU55 stipulates.56

52 Kibaroglu / Scheumann, supra note 1, at 294. 53 Since June 2011, the Ministry of Environment and Forestry has been reorganized and renamed as the Ministry of Forestry and Water Affairs, Turkey. See . 54 A series of laws and by- laws have been adopted in Turkey since mid 2000s, which are related to environmental protection and water quality management in domestic, agri­ cultural and industrial sectors. This legal reorientation is basically guided by the Euro­ pean Union water legislation within the framework of accession partnership process. 55 The Memorandum of Understanding between the Government of the Republic of Tur­ key and the Government of the Syrian Arab Republic in the Field of Remediation of Water Quality, supra note 51. 56 Kibaroglu / Scheumann, supra note 1, at 294.



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2. ETIC—the Non-governmental Network57 Another significant development in the region is the Euphrates-Tigris Initiative for Cooperation (ETIC) established in May 2005 by a group of scholars and professionals from the three major riparian countries. The overall goal of the initiative is to promote cooperation among the three riparians to achieve technical, social and economic development in the Euphrates-Tigris region. The composition and the role of ETIC remarkably fit the epistemic community theory and its role in institutional bargaining. Epistemic communities are a “network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area.”58 The origin of ETIC may be traced to early meetings among the concerned scientists from Iraq, Syria, Turkey and the United States in 2004.59 This group of dedicated scholars has been meeting with flexible agendas. At the first stage of these gatherings, the participants shared information concerning national water policies and raised the significance of water issues in the countries’ socio­economic development targets. In a short period of time, the members of the group have been able to develop a common understanding of the existing conditions, pressing problems and needs in the region. In doing so, these concerned scientists have decided to turn their expertise and experience into the joint initiative of the ETIC. The ETIC is a track-two effort, meaning that it is voluntary, non-official, nonbinding, non-profit seeking and non-governmental. It is not affiliated with any government, but it aims to contribute positively to efforts, official and unofficial, that will enhance the dialogue, understanding and collaboration among the riparians of the Euphrates-Tigris region. As a multi-riparian initiative, ETIC has been unique in that it looks beyond water rights, per se, to themes related to environmental protection, development and gender equity, water management, governance, and grass-roots participation in a holistic, multi-stakeholder framework.60

57 This section is mainly drawn from A. Kibaroglu, “The Role of Epistemic Communities in Offering New Cooperation Frameworks in the Euphrates-Tigris Rivers System”, Journal of International Affairs 61 (2008), 191. 58 P. M. Haas, “Introduction: Epistemic Communities and International Policy Coordina­ tion”, International Organization 46 (1992), 1. 59 As a spin-off from a project conducted by the International Center for Peace at the University of Oklahoma, some Iraqi, Syrian and Turkish participants in the said project have decided to launch a cooperation initiative, in collaboration with the University of Oklahoma and Kent State University (on file with author). 60 Summary statement presented at the conclusion of the XII World Water Congress, 26 November 2005, New Delhi, India; ETIC Newsletter 3 (2005), Euphrates-Tigris Initia­ tive for Cooperation (ETIC) workshop synthesis document (presented at World Water Week, Swedish International Water Institute, Stockholm, 21 August 2006). On file with author.

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The ETIC members contend that awareness of socio-economic development is compulsory to understand the real dynamics of the region. Hence, the vision61 of the ETIC is defined by the founders as “quality of life for people in all communities, including rural and urban areas, is improved, and harmony among countries and with nature in the Euphrates-Tigris region is achieved” to promote cooperation for technical, social and economic development in the Euphrates-Tigris region. In line with its vision and overall goal, ETIC prepares and implements joint training and capacity building programs62 as well as research and projects63 with an aim to respond to the common needs and concerns of the people in the region.64 In conducting these activities ETIC has built partnerships with the international organizations, NGOs and with the universities. VII. Conclusion This contribution analyses the evolution of transboundary water relations in the Euphrates-Tigris region in its historical and geographic context. In the first half of the 20th century the riparian states focused on their domestic need for socioeconomic development rather than the formulation of external water policies. The second period saw the advent of competitive transboundary water politics shaped by the initiation of uncoordinated, large-scale water development projects. The third period was the most complex, given the link between transboundary water issues and non-riparian security issues. Throughout the evolution of their transboundary water policies, the goal pursued by each riparian has not changed: Turkey has been keen to determine what is needed and how resources should be allocated, while Iraq and Syria have adopted the same line of reasoning, that a sharing agreement should be concluded on the basis of a declaration of riparian rights. Yet there has been a change in what is done and how it is done in the region since the early 2000s. The high-level contacts have produced a framework for regional cooperation of which water is an integral component. Issues of mutual concern, such as drought management, efficient management of resources and the improvement of water quality, have come to the fore during

61   ETIC’s Vision and Mission Document (on file with author). 62 ETIC organized a training program in 2006 on dam safety in collaboration with the UNESCO for professionals from Iran, Iraq, Syria and Turkey. ETIC organized a work­ shop on knowledge technology in March 2009 in Gaziantep, Turkey for participants from Iraq, Syria and Turkey. The last training workshop was organized by ETIC in Aleppo in January 2010 on geographical information systems and their implementa­ tion in natural resources management (on file with author). 63 ETIC has been pursuing a research activity entitled “Collaborative Planning and Knowl­ edge Development in the Tigris-Euphrates Region”. The stakeholders in this activity are Iraqi, Syrian and Turkish universities faculty members (on file with author). 64 ETIC Newsletter 4 (2006).



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the transboundary water talks. Moreover, new instruments of statecraft, namely the environmental bureaucracies, and non-governmental entities, such as the ETIC, have begun to play key roles in shaping the water cooperation agenda. However, thorough analyses reveal that the change involving various cooperative initiatives is more closely and intimately related to the change in overall political relations, with decisions being taken at the highest level. It cannot be denied, therefore, that the overarching problem of deteriorating political relations in the region may have a counter effect on the development of transboundary water cooperation. As political will fades, particularly in Turkish-Syrian relations, technocratic and diplomatic bureaucracies are encountering serious difficulties in implementing the new water MoUs. They are closely linked to decision-­making at the highest level. But it should also be noted that, since the early 2000s, contacts have been made, existing networks have been revitalized, and new ones have been created. Thus a partial institutionalization of water cooperation had already begun before it was abruptly halted in 2011 as overarching bilateral political relations worsened. When it has a chance to resume, transboundary water cooperation should start from a variety of perspectives and issues, which may again provide opportunities for regional cooperation.

Chapter Five

Sharing and Protecting the Euphrates and Tigris: Legal Status Quo Adele J. Kirschner and Katrin Tiroch*

I. Introduction1 Management of freshwater resources is complex and involves many challenges. The Euphrates and Tigris rivers2 are no exception to that. Their utilization and protection has been the subject of many disputes between the riparian states Iraq, Syria and Turkey,3 which are faced with growing and compet­ ing demands, decreasing availability and environmental degradation of their water resources. Other factors, such as the effects of climate change or difficult political relations among the riparians, further exacerbate the problem. Alongside technical knowledge and political will, an adequate legal framework is among the essential tools in dealing with these challenges. The present con­ tribution will take stock of and analyze the current international legal frame­ work governing the management of water resources in the Euphrates and Tigris region. In doing so, the contribution focuses on three main questions of inter­ national water law: How to ‘define’ a shared water resource in order to set the

* The views expressed herein are Katrin Tiroch’s own personal views and do not necessar­ ily reflect the views of the UN. Both authors have previously worked together in a global knowledge transfer project on “Water Conflicts in International Law” at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. 1   Some discussions in this contribution are based on a previous article of both authors; see A. J. Kirschner / K. Tiroch, “The Waters of the Euphrates and Tigris: An International Law Perspective”, in: A. von Bogdandy / R. Wolfrum (eds), Max Planck UNYB 16 (2012), 329. 2 The terms ‘Euphrates and Tigris rivers’, ‘both rivers’ and the ‘two rivers’ are used without prejudice to the divergent positions taken by the riparian states whether they should be considered as two separate rivers or one single basin; see in particular section II. 1. infra. The same applies for the distinction between ‘international’ and ‘transboundary’; see in particular section II. 2. infra. 3 Although Saudi Arabia and Iran are drainage basin states, up until now negotiations have only taken place between the three main Euphrates and Tigris riparians, Iraq, Syria and Turkey. The contribution will, therefore, focus on these three countries.

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parameters for negotiation (II); how to ‘share’ it between different riparians (III); and how to ‘protect’ it from environmental degradation (IV). For each question, the contribution analyzes respective requirements of international (customary) law,4 the different positions of the riparians and the existing legal arrangements between them. Despite several attempts at a common management of the Euphrates and Tigris rivers, negotiations have not yet led to an agreement including all three riparian states or possibly even all basin states. However, the riparian states have concluded several relevant bilateral agreements summarized in the below table, which the contribution will take as the basis for its analysis.

1. 2. 3. 4.

5.

6.

Agreement5

Date

Treaty of Friendship and Neighbourly Relations between Iraq and Turkey, and Six Annexed Protocols Protocol on Matters Pertaining to Economic Cooperation between the Syrian Arab Republic and Turkey Joint Minutes Concerning the Provisional Division of the Waters of the Euphrates River (Syria-Iraq) Joint Communiqué on Cooperation between the Syrian Arab Republic and Turkey Joint Communiqué between Republic of Turkey Prime Ministry Southeastern Anatolia Project Regional Development Administration (GAP) and Arab Republic of Syria Ministry of Irrigation General Organization for Land Development (GOLD) Agreement on Setting Up a Syrian Pumping Station on the River Tigris between Syria and Iraq

Signed 29 March 1946; entered into force 10 May 1948 Signed and entered into force 17 July 1987 Signed 17 April 1989 Signed and entered into force 20 January 1993 Signed 23 August 2001

Signed 9 April 2002

4 The authors of this contribution contend that the norms described below are legally binding norms, i.e. norms of customary international law. Although this argument may be contested, it cannot be denied that these fundamental principles and rules will, at a minimum, influence the setting of terms in the debate and provide guidelines for volun­ tary compliance as well as for the negotiations of a future agreement, cf. D. Bodansky, “Customary (and Not So Customary) International Environmental Law”, Ind. J. Global Legal Stud. 3 (1995–1996), 105 (119). 5 For an analysis of relevant agreements before 1945, please see Kirschner / Tiroch, supra note 1, at 341 et seq. All agreements are printed in the Max Planck Compilation of Inter­ national Treaties and Other Documents Relative to the Euphrates and Tigris, 2012, avail­ able at: < http://www.mpil.de/red/water>.



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(cont.) Agreement

Date

7. Implementation Protocol between Republic of

Signed 25 July 2003

8.

Signed 23 September 2009

9. 10.

11.

Turkey Prime Ministry Southeastern Anatolia Project Regional Development Administration (GAP) and Arab Republic of Syria Ministry of Irrigation General Organization for Land Development (GOLD) Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic on Establishment of a Pumping Station in the Territories of the Syrian Arab Republic for Water Withdrawal from the Tigris River Memorandum of Understanding in the Field of Remediaton of Water Quality between the Government of the Republic of Turkey and the Government of Syrian Arab Republic Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Efficient Utilization of Water Resources and Combating Drought Memorandum of Understanding between the Ministry of Environment and Forestry of the Republic of Turkey and the Ministry of Water Resources of the Republic of Iraq on Water

Signed 23 September 2009

Signed 23 September 2009

Signed 15 October 2009

II. Finding a Common Terminology In order to be able to have a meaningful discussion about the legal regime appli­ cable to a specific (transboundary) river, it is essential to clearly establish the subject matter at hand. Therefore, international agreements commonly provide definitions on certain terms, in particular, concerning their scope of application. Since finding such terminology is a controversial issue between the Euphrates and Tigris riparian states, this contribution will first address the following two related questions before entering into the main substantive issues of sharing and protecting water resources: 1. Are the Euphrates and Tigris two ‘separate rivers’ or a ‘single basin’? 2. Are they ‘international’ or ‘transboundary’ rivers? 1. The Euphrates and Tigris: An Integrated System or Two Separate Rivers? The definition of a watercourse and, consequently, the geographic scope of application of an agreement, which generally defines the type of water resources

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governed by an agreement using geographical and/or hydrographical parameters,6 has always been a source of discussion and dispute in international water law.7 Also, within the Euphrates and Tigris region, the riparian states have not yet been able to agree upon a common definition of both rivers in the spatial sense. The dispute centers on the question whether both rivers can be considered as an inte­ grated system or whether they are to be discussed and treated separately. a. Definition of a River in International Water Law Various different approaches have evolved in international law as to the defi­ nition of a watercourse. Older state practice reflects a narrow approach rooted in states’ territorial assertions. Agreements typically limited their geographical scope of application to the physical channel of the main river; even their tributar­ ies were not covered.8 A better scientific understanding of the interdependence between different eco-systems as well as increased awareness of environmental problems led to a paradigm shift towards more holistic, eco-system oriented approaches.9 They are based on the understanding that due to the interconnec­ tion of natural systems as well as the complexity of their interaction, activities can lead to unforeseen consequences, sometimes even of irreversible character.10 Accordingly, an eco-system oriented approach also implies a broad definition of an international watercourse in the spatial sense.11 Today, many agreements dealing with the utilization, management and/ or protection of transboundary watercourses base the definition of their geo­ graphical scope of application on one of two (comparatively broad) concepts: ‘(drainage) basin’ or ‘watercourse’.12 Pioneering work was done in that regard by the International Law Association (ILA), which introduced the concept of an

   6 S. Vinogradov et al., “Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law”, UNESCO-IHP PC-CP Series 2 (2003), 46.    7 See section II. 1. b. infra.    8 See e.g. A. Tanzi / M. Arcari, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing, 2001, 57. See also the replies of governments to the ILC’s questionnaire, “The Law of Non-Navigational Uses of International Water­ courses: Replies of Governments to the Commission’s Questionnaire”, UN Doc A/ CN.4/294 and Add. 1 of 1 April 1976.    9 Tanzi / Arcari, supra note 8, at 8, 9; O. McIntyre, “The Emergence of an ‘Ecosystem Approach’ to the Protection of International Watercourses under International Law”, RECIEL 13 (2004), 1 (2). 10 See S. C. McCaffrey, The Law of International Watercourses, 2007, 447. 11   J . Brunée / S. J. Toope, “Environmental Security and Freshwater Resources: A Case for International Ecosystem Law”, Y. Intl. Env. L. 5 (1994), 41 (55). 12 Vinogradov et al., supra note 6, at 46.



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international drainage basin in their so-called Helsinki Rules, adopted as early as 1966.13 According to their article 2, an international drainage basin is a geographical area extending over two or more states determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.

The concept of an international drainage basin has, however, also faced resis­ tance by a variety of states. It is criticized for interfering with the sovereignty of states, since the application of the concept could result in regulating not only the use of water resources but also of land territory.14 In its work on the Draft Articles on the Non-navigational Uses of International Watercourses (ILC Draft Articles),15 the International Law Commission (ILC), therefore, adopted the parallel concept of an ‘international watercourse’, which also forms the basis of the UN Conven­ tion on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourse Convention).16 According to both instruments a watercourse’ means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.17

Even if the wording of the article suggests a narrower approach than the drain­ age basin approach adopted by the ILA, the concept of an international water­ course still goes beyond the traditional notion of a river and takes into account the natural relationship of different, interconnected components of a water resource. Moreover, some authors even argue that the UN Watercourse Conven­ tion indirectly applies to land-based activities taking place within a river basin

13 International Law Association (ILA), “Helsinki Rules on the Uses of the Waters of Inter­ national Rivers”, Report of the Fifty-Second Conference: Helsinki: 14–20 August 1966, 1967, 484 (Helsinki Rules). 14 During the drafting of the UN ILC “Draft Articles on the Law of Non-Navigational Uses of International Watercourses and Commentaries”, YILC II (1994), para. 222, 105, avail­ able at: , the ILC gathered the opinion of states on the question whether the concept of an ‘international drainage basin’ adopted by the ILA should be used as a basis for their work. For the different replies of states, please see ILC’s questionnaire, supra note 8; see also J. L. Wes­ coat, “Beyond the River Basin: The Changing Geography of International Water Prob­ lems and International Watercourse Law”, Colo. J. Int’l Envtl. L. & Pol’y 3 (1992), 301. 15 ILC Draft Articles, supra note 14. 16 Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, not yet entered into force), ILM 36 (1997), 700 (UN Watercourse Convention). 17 Art. 2 (b) ILC Draft Articles, supra note 14; corresponding to art. 2 (a) UN Watercourse Convention, supra note 16.

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to the extent that they have an impact on the use, management or protection of the watercourse.18 The instrument currently offering the most extensive geographical scope of application is the EU Water Framework Directive (WFD), which was adopted in 2000.19 It covers all EU waters, including not only inland surface waters, transi­ tional waters, and groundwater, but also coastal waters.20 Furthermore, it should be pointed out that the Directive applies to both national and international waters.21 Moreover, it establishes the so-called river basin districts, which are defined as the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters, which is identified (. . .) as the main unit for management of river basins.22

b. Positions of the Riparians Syria and Iraq view the Euphrates and Tigris as two distinct rivers. According to them, both rivers flow separately for most of their way and are clearly divided by hydrological boundaries. The confluence of both rivers to form the Shatt-al-Arab is considered negligible.23 Turkey, on the contrary, argues that the Euphrates and Tigris merge at the Shatt-al-Arab and that Iraq has even intentionally connected the two rivers by constructing an artificial canal.24 The difference in their posi­ tions is explained by the fact that all sides hope to gain the most benefits from

18   Cf. A. Rieu-Clarke et al., UN Watercourses Convention: User’s Guide, 2012, 78, 86; McCaf­ frey, supra note 10, at 37; see also UN ILC Special Rapporteur S. C. McCaffrey, “Sev­ enth Report on the Law of the Non-Navigational Uses of International Watercourses”, UN Doc. A/CN.4/436 and Corr. of 15 March 1991, 1–3; Tanzi /Arcari, supra note 8, at 58–60; O. McIntyre, Environmental Protection of International Watercourses under Inter­ national Law, 2007, 218, 219; D. Nauschütt, Die Konvention über das Recht der nicht­schiffahrtlichen Nutzung internationaler Wasserläufe: Eine Studie über die Entstehung einer völkerrechtlichen Konvention und eine Bewertung der Konvention vor dem Hinter­ grund geltenden Wasserrechts, 2009, 351–353. 19   C  ouncil and Parliament Directive 2000/60/EC of 23 October 2000 establishing a Frame­ work for Community Action in the Field of Water Policy, EU OJ L327/1 of 22 December 2000; for a more detailed analysis of the EU Water Framework Directive (WFD), see the contribution of U. Beyerlin in this book. 20 Ibid., art. 1; for the respective definitions see also ibid., arts 2 (1), (2), (6) and (7). 21   Ibid., art. 3. 22 Emphasis added. Ibid., art. 2 (15); ‘river basin’ is defined in art. 2 (13) as: The area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta. 23 Iraqi Ministry of Water Resources, Facts on the Joint Waters with Turkey, 1999, 29, 35 (on file with the authors). On the geography and hydrology of the Euphrates and Tigris see J. Cullmann in this book. 24 M. Biedler, “Hydropolitics of the Tigris-Euphrates River Basin with Implications for the European Union”, Centre Européen de Recherche Internationale et Stratégique: Research Paper No. 1 (2004), 17 (21).



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their respective arguments. On the one hand, Syria and Iraq fear that their claims to a larger share of the Euphrates river would be weakened if they were to con­ sider the rivers as part of an integrated system.25 Turkey, on the other hand, is try­ ing to retain its development schemes for the Euphrates since it is more suitable for water development projects than the Tigris due to favorable conditions.26 c. Current Legal Regime The agreements signed between the three riparian states do not shed much light on an approach followed, if they follow any. None of the agreements provides for a definition of its exact scope of application. Most of them simply refer to the Euphrates and/or Tigris,27 sometimes also mentioning their tributaries.28 Only the 2009 Memorandum of Understanding (MoU) in the Field of Remediation of Water Quality concluded between Turkey and Syria contains an interesting refer­ ence to “the protection of water quality at the basins level”.29 However, the MoU does not give any further explanation on the exact meaning of the term. It might

25 Ibid.; this is due to the possibility of feeding irrigation areas not only with water from the Euphrates but also from the Tigris. 26 The argument can be made that, when the Euphrates and Tigris are viewed as one basin, it would be easier for Turkey to defend its intensive utilization of Euphrates waters (as opposed to the Tigris), since water shares would be calculated on the basis of water available in both rivers. According to Peter Beaumont, the overall water manage­ ment of the Tigris is a lot more complex than that of the Euphrates, see P. Beaumont, “Restructuring of Water Usage in the Tigris-Euphrates Basin: The Impact of Modern Water Management Policies”, in: J. Albert et al. (eds), Transformations of Middle Eastern Natural Environments Yale F&Es Publication Series Bulletin No. 103 (1998), 168 (170). 27 For instance, the Protocol on Matters Pertaining to Economic Cooperation between the Syrian Arab Republic and Turkey (signed and entered into force 17 July 1987), UNTS Vol. 1724 No. 30069, refers to the “allocation of the waters of Euphrates” (para. 6) and to work together to regulate the allocation of “the waters of the Euphrates and Tigris” (para. 7). 28 See Treaty of Friendship and Neighbourly Relations between Iraq and Turkey, and Six Annexed Protocols (signed 29 March 1946, entered into force 10 May 1948), UNTS Vol. 37 No. 580. Protocol No. 1 refers to the Tigris and Euphrates and their tributaries (preamble, arts 1, 5); moreover, the 2002 Agreement on Setting Up a Syrian Pumping Station on the River Tigris between Syria and Iraq (done 9 April 2002), on file with the authors (unoffi­ cial translation), refers to tributaries of the Tigris and even specifically defines the Khabur as tributary of the river Tigris among its ‘technical terms’ (arts 1 (10), 3 (3)). 29 Art. 2 of the Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Remediation of Water Quality (23 September 2009), on file with the authors (unofficial translation), (MoU on Remediation of Water Quality) states: The Parties shall cooperate in the following areas: 1. In relation to remediation and protection of water quality at the basins level, joint work on prevention of pollution coming from residential areas, agriculture, industry and other activities and the vari­ ation in the amount of water and its effect on the pollution, (. . .) (emphasis added).

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be a hint towards the acceptance of a comprehensive drainage basin approach. Yet, since the term ‘basin’ is used in the plural and the MoU is not limited to the Euphrates and Tigris, ultimately it does not give a clear reference concerning the controversial subject at hand. Moreover, the agreements leave many questions open, such as the issue of groundwater, which is not addressed. International law provides us with a clearer answer. It is a fact that the Euphra­ tes and Tigris merge in Iraq to form the Shatt-al-Arab which after about 200 km drains into a common terminus, the Persian Gulf.30 Hence, both rivers are inter­ connected and, according to the various (modern) approaches referred to above, should be considered a unitary whole. However, although international water law is prone to a single basin approach, ultimately it does not impose an obliga­ tion to follow it.31 Rather, it is a decision over which the riparian states need to find an understanding. Whether to treat the two rivers separately, be it in two separate agreements or one agreement, or treat the Euphrates and Tigris as a single basin is a matter which needs to be negotiated. Nevertheless, from an eco­ logical perspective, the importance of adopting a holistic approach, which takes into account the factual connection of the Euphrates and Tigris rivers, cannot be stressed enough. 2. Are the Euphrates and Tigris ‘International’ or ‘Transboundary’ Rivers? In addition to disagreeing on the definition of a watercourse, the riparian states lack consensus on the use of the terms ‘international’ and ‘transboundary’. a. International Water Law International law does not prescribe a certain terminology in that regard. In fact, the ILC has used both terms interchangeably. The ILC Draft Articles on the Law of Non-Navigational Uses of International Watercourses and, accordingly, the UN Watercourse Convention defines a watercourse as ‘international’ when parts of it are “situated in different States”.32 Yet, the UN ILC Draft Articles on the Law of Transboundary Aquifers define an aquifer as ‘transboundary’ when parts of it are

30 See e.g. R. Moschtaghi, “Shatt al Arab”, in: R. Wolfrum (ed.), The Max Planck Encyclope­ dia of Public International Law, 2008 (online edition), available at: , para. 1. 31   S ee also art. 3 (4) UN Watercourse Convention, supra note 16, which leaves it open to watercourse states to “define the waters to which it applies”; similarly, the UNECE Con­ vention on the Protection and Use of Transboundary Watercourses and International Lakes (with Annexes) (done 17 March 1992, entered into force 6 October 1996), UNTS Vol. 1936 No. 33207 (UNECE Helsinki Convention) leaves it open to the riparian parties to “specify the catchment area, or part(s) thereof, subject to cooperation” (art. 9 (1)). 32 See art. 2 (a) ILC Draft Articles, supra note 14, and art. 2 (b) UN Watercourse Conven­ tion, supra note 16.



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“situated in different States”.33 It is important to point out that the ILC connected the same meaning to ‘transboundary’ and ‘international’ in both cases. b. Positions of the Riparians Syria and Iraq view the Euphrates and Tigris as ‘international’ rivers in line with the definition of the UN Watercourse Convention34 and argue for an equal share of the waters between all three riparians.35 On the contrary, Turkey considers riv­ ers as ‘international’ only if they form a boundary between two or more states.36 Hence, it does not recognize the international character of the Euphrates and Tigris, but maintains that they are ‘transboundary’ or ‘trans-border’ rivers. Conse­ quently, the Euphrates and Tigris fall under Turkey’s exclusive sovereignty until they cross the Turkish border.37 Only after the Euphrates and Tigris join in Iraq to form the Shatt-al-Arab, do the two become an ‘international’ river. Before this point, as argued by Turkey, each state shall enjoy full sovereign rights to make use of the water flowing through its territory.38 c. Current Legal Regime The agreements concluded so far between the riparian states do not provide any hint on that issue. None of them refer to the Euphrates or Tigris as ‘international’ or as ‘transboundary’ rivers; the question seems to have been deliberately left out. Turkey’s distinction regarding ‘transboundary’ and ‘international’ ­rivers resem­ bles a historic differentiation drawn between watercourses that form or traverse boundaries, respectively called ‘contiguous’ and ‘successive’ watercourses.39 The legal rules governing both types of watercourses are, however, the same.40 The UNECE Helsinki Convention provides a good example in that regard. It uses

33 See art. 2 (c) ‘The Law of Transboundary Aquifers’ (11 December 2008), UN GAOR 63th Session, Supp. 49, UN Doc. A/RES/63/124 (vol. 1) (2008), 575. 34 Iraqi Ministry of Water Resources, supra note 23, at 29, 35; M. Jouejati, “Water Politics as High Politics: The Case of Turkey and Syria”, in: H. J. Barkey (ed.), Reluctant Neighbor: Turkey’s Role in the Middle East, 1996, 131 (136). For a detailed analysis of this issue see N. Bremer, The Regulation of the Non-Navigational Use of the Euphrates and Tigris River System, forthcoming, part 1, E. II. 2. 35 Iraqi Ministry of Water Resources, supra note 23, at 29. 36 A. Kibaroglu et al., Cooperation on Turkey’s Transboundary Waters, Status Report com­ missioned by the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety, 2005, 20. 37 Republic of Turkey, “Turkey Water Report 2009”, Report of the General Directorate of State Hydraulic Works (2009), 48. 38 Ibid. 39 This distinction was primarily made in the law of navigational uses of watercourses. On this issue see McCaffrey, supra note 10, at 41 et seq. 40 Ibid., 44 et seq.

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the term ‘transboundary’ for border as well as for cross-border rivers without making any distinction in treatment.41 The underlying problem here is actually not one of use of terms, but about the scope of rights a state possesses vis-à-vis its co-riparians.42 Again, the riparian states base their claims on arguments, according to which they expect to gain the most benefits. The disagreement on certain terms when describing the Euphrates and Tigris is, however, not only a barrier to cooperation, but can also make it dif­ ficult to relate to international law. III. Sharing the Waters of the Euphrates and Tigris Sharing common water resources is a highly complicated issue involving a range of different interests and sensitivities. The task is not made easier by decreasing supplies, continuing population growth and other (unpredictable) factors, such as, the effects of climate change. Yet, international law provides for a framework of rules that could help states to reconcile conflicting interests and put in place a fair and effective sharing regime. This encompasses substantive and procedural rules, including mechanisms of dispute settlement, incumbent upon states shar­ ing a watercourse. 1. Substantive Rules a. International Water Law The fundamental principle43 governing the sharing of waters between the riparians of a common watercourse is that of equitable and reasonable utilization.44 It can be regarded as a well-established principle of customary international water law.45 41   Art. 1 (1) UNECE Helsinki Convention, supra note 31. 42 H. Chalabi / T. Majzoub, “Turkey, the Waters of the Euphrates and Public International Law”, in: J. A. Allan / C. Mallat (eds), Water in the Middle East: Legal, Political and Com­ mercial Implications, 1995, 189 (220). 43 For a discussion of the distinction between policies, legal rules and legal principles, see U. Beyerlin, “ ‘Prinzipien’ im Umweltvölkerrecht—ein pathologisches Phänomen?”, in: H.-J. Cremer et al. (eds), Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger, 2002, 31; U. Beyerlin, “Different Types of Norms in International Environ­ mental Law: Policies, Principles and Rules”, in: D. Bodansky et al. (eds), The Oxford Handbook of International Environmental Law, 2007, 425; for the purposes of this study, the substantive norms of international water law (equitable and reasonable utilization and obligation not to cause harm) will be referred by the terms ‘principle’ of equi­ table and reasonable utilization and no-harm ‘rule’ since this is what they are generally called. This terminology however is used without prejudice whether either norm is considered a ‘principle’ or ‘rule’ of international law. 44 Cf. McCaffrey, supra note 10, at 404. 45 For a survey of state practice, see UN ILC Special Rapporteur S. C. McCaffrey, “Second Report on the Law of the Non-navigational Uses of International Watercourses”, UN Doc. A/CN.4/399 of 21 May 1986; this is supported by the consistent inclusions of the



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Accordingly, all watercourse states have a right to an equal share of its uses and benefits and no state has a priori a superior claim on the resource.46 At the same time, states also have the correlative obligation not to exceed their rights and unduly interfere with the rights of other states.47 It should also be stressed that equal rights do not imply the equal apportionment of a watercourse. Equity does not mean equality of the share. Similarly, the objective of an optimal utilization does not entail that a state capable of making the most efficient—economically or technologically—or monetarily valuable use should have a prior claim against other states.48 It rather aims to attain an optimal balance between different uses and claims. What is equitable and what is reasonable cannot be strictly defined but needs to be determined on a case-by-case basis. This necessitates states to develop more specific arrangements laying out the rules on how to share their joint waters.49 In particular, they need to agree on criteria on which to base their assessment of an equitable and reasonable use.50 The second fundamental pillar of international water law is the obligation not to cause harm to other riparian states, or also called the no-harm rule.51

norm in treaties and other documents, cf. art. 5 UN Watercourse Convention, supra note 16; art. IV ILA Helsinki Rules, supra note 13; art. 12 ILA Berlin Rules, Commit­ tee on Water Resources, “Water Resources Law—Fourth Report”, in: ILA, Report of the Seventy-First Conference, Berlin 2004; art. 5 Agreement on the Cooperation for the Sus­ tainable Development of the Mekong River Basin (done 5 April 1995, entered into force 5 April 1995), ILM 34 (1995), 864; art. 5 ILC Draft Articles, supra note 14; see also L. del Castillo-Laborde, “Equitable Utilization of Shared Resources”, in: Wolfrum, supra note 30, at para. 16; McCaffrey, supra note 10, at 376 and references cited at 384 et seq.; see also references cited by C. Behrmann, Das Prinzip der angemessenen und vernünftigen Nutzung und Teilhabe nach der VN-Wasserlaufkonvention, 2008, 63, 64. For case law see Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, ICJ Reports 1997, 7 (paras 78, 85, 147); Affaire du Lac Lanoux (France v. Spain), Award, 16 November 1957, RIAA Vol. XII, 281 (315); Territorial Jurisdiction of the International Commission of the River Oder (United Kingdom v. Poland), Judgment, 10 September 1929, PCIJ Series A No. 23, 27. 46 Therefore, it is also irrelevant where the source of an international watercourse lies; see Behrmann, supra note 45, at 65. 47 Ibid., 64, 65. 48 Commentaries to art. 5 ILC Draft Articles, supra note 14, at paras 3, 8. 49 D. Ziganshina, “International Water Law in Central Asia: The Nature of Substantive Norms and what Flows from it”, AsianJIL 2 (2012), 169 (179). 50 Such criteria include, inter alia, geographical, social and economic circumstances, as well as existing and potential uses, conservation and protection measures and available alternatives, cf. art. 6 UN Watercourse Convention, supra note 16; art. IV ILA Helsinki Rules, supra note 13; art. 13 ILA Berlin Rules, supra note 45. This list is not exhaustive and essentially it is up to the states concerned to determine and agree on the weighting of criteria at a case by case basis. 51   The customary status of this norm enjoys widespread support, see e.g. art. 7 UN Water­ course Convention, supra note 16; art. 2 (1) UNECE Helsinki Convention, supra note 31; art. X ILA Helsinki Rules, supra note 13; art. 16 ILA Berlin Rules, supra note 45; Principle 21 UN Conference on the Human Environment, Stockholm Declaration of

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This means prevention of the causing of harm to other riparians through activi­ ties related to a shared watercourse. State practice and case law require the harm to exceed a certain threshold, i.e. to be sufficiently serious or significant.52 The rule, however, does not entail responsibility for the mere occurrence of a particular result (obligation of result), but rather, the required standard of conduct is one of due diligence. Accordingly, states should take all appropriate measures not to cause significant harm (obligation of conduct). The concrete measures required are to be established taking into account the facts and cir­ cumstances of each particular situation, as well as the capabilities of the state concerned.53 Finally, it is important to note that the no-harm rule not only constrains activi­ ties of upstream states. It is clear that the environment of a downstream state may be (factually) harmed by an upstream use. However, there is also potential of harm the other way round. In particular, heavy downstream use may have the legal effect of imposing limitations on an upstream state’s utilization of a water­ course as its use may alter the equitable balance of uses. Thus, harm can also be of a legal nature. The upstream state may in effect be deprived of its right to use a watercourse or engage in a planned activity by downstream uses. Consequently, the obligation to prevent harm does not permit a downstream state to completely restrict the economic development of an upstream state.54 b. Positions of the Riparians Notwithstanding the fact that they have so far not been able to reach a com­ prehensive sharing agreement, all three riparians basically recognize in their

the United Nations Conference on the Human Environment (16 June 1972), UN Doc. A/CONF.48/14/Rev 1, 3; Principle 2 UN Conference on Environment and Development, Rio Declaration on Environment and Development (14 June 1992), UN Doc. A/CONF. 151/26/Rev 1 vol I, 3; Affaire du Lac Lanoux supra note 45, at 281 (308); in support of the no-harm rule but not on international water law itself: Trail Smelter (United States of America v. Canada), Award, 16 April 1938 and 11 March 1941, 3 RIAA 1905 (1941), 1965; Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Mer­ its), Judgment, 9 April 1949, ICJ Reports (1949), 4 et seq. (22); see also McCaffrey, supra note 10, at 406 et seq.; McIntyre, supra note 18, at 87 et seq.; G. Handl, “Transboundary Impacts”, in: Bodanksy et al., supra note 43, 534. 52 McIntyre, supra note 18, at 93; see also T. Bruha / C. A. Maaß, “Schutz der Süßwasser­ ressourcen im Völkerrecht—Prinzipien, Instrumente und neuere Entwicklungen”, in: T. Bruha / H.-J. Koch (eds), Integrierte Gewässerpolitik: Gewässerschutz, Wassernutzung, Lebensraumschutz, 2001, 69 (79–83); the term ‘significant’ is used by the ILC and in art. 7 UN Watercourse Convention, supra note 16. 53 The standard of due diligence requires the adoption of adequate legislation and admin­ istrative measures as well as their enforcement, McIntyre, supra note 18, at 102. 54 McCaffrey, supra note 10, at 410 et seq.



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f­ oreign (water) policies that transboundary water resources should be used in an equitable and reasonable manner, without causing harm to other states.55 aa. Turkey Albeit widely perceived as reluctant, Turkey has expressed its adherence to the principle of equitable and reasonable utilization and the no-harm rule.56 The per­ ception that Turkey opposes these norms largely stems from the fact that it has refused to sign the UN Watercourse Convention and was, moreover, among the three states that voted against its adoption in 1997.57 Yet, rather than being an objection to the principles themselves, Turkey’s refusal seems to be based on the view that the UN Watercourse Convention goes far beyond the scope of a frame­ work document and should be limited to enacting basic principles.58 Moreover, Turkey with its Three Stages Plan for Optimum, Equitable and Rea­ sonable Utilization of the Transboundary Watercourse of the Euphrates Tigris Basin59 has presented an official action plan for the optimal use and allocation of 55 See Turkish Ministry of Foreign Affairs, “Water Issues between Turkey, Syria and Iraq”, a Study by the Department of Regional and Transboundary Waters, 11, available at: ; reiterated in Turkey Water Report 2009, supra note 37, at 46 et seq; Iraqi Ministry of Water Resources, supra note 23, at 29, wherein the Iraqi Government generally refers to the application of these rules of international law. Whereas it is difficult to obtain official statements on Syrian foreign water policy, the country has clearly accepted the ‘principle of equitable and reasonable use’ as well as the ‘no-harm rule’ by ratification of the UN Watercourse Convention. The same also goes for Iraq. 56 See for example Turkey’s written comment on the ILC Draft Articles in: UN GA, “Con­ vention on the Law of the Non-navigational Uses of International Watercourses: Draft Articles on the Law of the Non-navigational Uses of International Watercourses and Resolution on Confined Transboundary Groundwater, Report of the Secretary-General”, UN Doc. A/51/257 of 6 August 1996, 28 and Turkish Ministry of Foreign Affairs, “Water Issues between Turkey, Syria and Iraq”, Perceptions: Journal of International Affairs 1 (1996), chapter III; Turkey Water Report 2009, supra note 37, at 52. 57 Apart from Turkey, China and Burundi also voted against the UN Watercourse Conven­ tion. For the voting records see UN GA, Verbatim Records of Plenary Meeting No. 99 of 21 May 1997, UN Doc. A/51/PV.99 of 21 May 1997, 7 et seq. 58 Turkey has, inter alia, raised the following points during the negotiations of the UN Watercourse Convention: (1) in general it criticized that the UN Watercourse Conven­ tion went far beyond the scope of a framework document, which should be limited to enacting basic principles; (2) it proposed to omit art. 7 completely since according to its view the obligation to prevent harm is subsidiary to that of equitable and reasonable uti­ lization; (3) the dispute settlement clause in art. 33 should be omitted and it should be up to the states concerned to determine the rules of procedure since compulsory rules do not fit into a framework convention. See UN GA, “Report of the Secretary-­General”, supra note 56, at 12, 35, 53. For more on the Turkish position with regard to the UN Watercourse Convention and, in particular, on the question whether Turkey could be regarded as a ‘persistent objector’, see Kirschner / Tiroch, supra note 1, at 381. 59 Three Stages Plan for Optimum, Equitable and Reasonable Utilization of the Trans­ boundary Watercourse of the Euphrates Tigris Basin (Three Stages Plan), see Turkish

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the Euphrates and Tigris. It foresees the waters to be allocated according to the needs of each riparian60 following an assessment, inventory and evaluation of all available water and land resources in the basin.61 Yet, albeit clearly advocat­ ing equitable and reasonable utilization, the subtext of Turkey’s plan seems to be directed towards awarding priority to the most efficient or ‘optimal use’. The reference to ‘optimal use’ is not new to international water law and can be found in several codifications, including treaties on the subject.62 Rather than a factor to be considered in the assessment of an equitable and reasonable character of a certain use, it is a goal according to which the rule is to be interpreted and applied.63 The scope and meaning of this goal was a particular point of conten­ tion between Turkey and its lower riparians during the negotiations of the UN Watercourse Convention, which in its article 5 (1) also includes a reference to optimal use.64 Turkey supported a primarily economic understanding of this ref­ erence relating it to achieving the most efficient and beneficial exploitation of a watercourse, in a way that avoids the wasting of water.65 Iraq and Syria, both fearing that this understanding would award priority to Turkey’s water develop­ Ministry of Foreign Affairs “Water Issues between Turkey, Syria and Iraq”, supra note 55, at chapter I. C. 4. A., chapter IV. 60 Ibid., see also A. Kibaroglu, Building a Regime for the Waters of the Euphrates-Tigris River Basin, 2002, 244; W. Scheumann, “Conflicts on the Euphrates: an Analysis of Water and Non-water Issues”, in: W. Scheumann / M. Schiffler (eds), Water in the Middle East: Potential for Conflicts and Prospects for Cooperation, 1998, 113 (128). 61   Three Stages Plan, supra note 59. For particulars see A. Kibaroglu in this book. 62 See arts 8 (1), 24 (2) (b) UN Watercourse Convention, supra note 16; art. 12 (2) Berlin Rules, supra note 45; art. 3 (7) Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) (signed 7 August 2000, entered into force 22 September 2003), ILM 40 (2001), 321; preamble of the Agreement between Ban­ gladesh and India on Sharing of the Ganges Waters at Farakka and on Augmenting Its Flows, (signed 5 November 1977, entered into force 5 November 1977) UNTS Vol. 1066 No. 16210; Recommendation 51 of the Action Plan for the Human Environment, adopted at the UN Conference on Human Environment, Report of the United Nations Conference on the Human Environment, (Stockholm, 5–16 June 1972), UN Doc. A/ CONF.48/14/Rev.1 of 1973, 17. On the inter-play of this concept with the principle of equitable and reasonable utilization see G. Hafner, “The Optimum Utilization Principle and the Non-Navigational Uses of Drainage Basins”, AJPIL 45 (1993), 113. 63 Tanzi / Arcari, supra note 8, at 104. 64 Art. 5 (1) UN Watercourse Convention provides: 1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attain­ ing optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse (emphasis added). 65 Cf. Turkey’s comments on the ILC Draft Articles, supra note 14: The principle of optimal utilization should aim both at protecting the watercourses and at optimizing the interests of riparian states in a way which avoids water waste.



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ment plans,66 protested and advocated for an express clarification of the ‘optimal use’ reference in the text of the UN Watercourse Convention.67 Although such a reference was finally not included in the text, a change of wording obliging states to take into account the interests of all watercourse states, was able to appease the lower riparians.68 According to the ILC’s commentary on its draft articles, ‘optimal utilization’ refers to the attainment of the best possible uses and ben­ efits in light of all circumstances and in a manner consistent with its adequate protection.69 Thus it does not prioritize the most efficient or economically valu­ able use of a certain state, but seeks to achieve maximum benefit for all riparians consistent with the adequate protection of the resource.70 bb. Iraq and Syria Iraq and particularly Syria have less often commented on their positions with regard to the above-mentioned substantive norms. This is most likely explained by the fact that both riparians have ratified the UN Watercourse Convention and, therefore, have accepted to abide by both substantive norms as expressed therein,71 in addition to customary international law.72

Turkey believes that the notion of ‘optimal utilization’ should not be restricted to protec­ tion only but should be seen also as comprising the concept of ‘efficient use’, UN Doc. A/51/275 of 6 August 1996, 36. 66 In particular the upper stretch of the Euphrates in Turkey is, generally, regarded as a good location for building dams, cf. Beaumont, supra note 26, at 170. 67 In the negotiations of the UN Watercourse Convention in the UN GA Sixth Commit­ tee both Syria and Iraq brought forward proposals to amend the wording of art. 5 ILC Draft Articles, supra note 14, in order prevent any misunderstandings with regard to a possible economic connotation of the ‘optimal use’ reference. See proposal submitted by the Syrian Arab Republic, UN Doc. A/C.6/51/NUW/WG/CRP.41 of 14 October 1996, proposal submitted by Iraq, UN Doc. A/C.6/51/NUW/WG/CRP.13 of 8 October 1996. 68 Tanzi / Arcari, supra note 8, at 108. 69 Commentary to art. 5, para. (3), ILC Draft Articles, supra note 14. 70 Ibid. 71   In general, prior to the entry into force of a treaty, states are obliged to refrain from acts that would defeat the object and purpose of a treaty they have committed them­ selves to (through signature and/or ratification), see art. 18 Vienna Convention on the Law of Treaties (VCLT), (adopted and opened for signature 23 May 1969, entered into force 27 January 1980) UNTS Vol. 1155 No. 18232). Next to being an expression of the principle of good faith, the obligation is regarded to reflect customary international law (O. Dörr, “Article 18”, in: O. Dörr / K. Schmalenbach (eds), Vienna Convention on the Law of Treaties a Commentary, 2012, 219 (220 et seq.)) and is, thus, also binding upon states which are not party to the VCLT, such as Iraq. On the current status of the VCLT see . 72 It should be noted that there is still disagreement about the exact status, scope and relationship of the norms contained in the UN Watercourse Convention and customary international water law, cf. O. McIntyre, “The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Resources”, Natural Resources Journal 46 (2006), 157; P. M. Dupuy, “Formation of Customary Law

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The Iraqi position is, however, somewhat ambiguous. According to a document entitled “Facts on the Joint Waters with Turkey” issued by the Ministry of Water Resources in 1999, the Iraqi government calls for the riparians to find a solution with regard to the Euphrates and Tigris that is in accordance with international law.73 It underscores the need for Iraq to secure an equitable and reasonable share of the rivers.74 At the same time, the document repeatedly makes reference to Iraq’s historical or acquired rights,75 which shall take “precedence over the uses of other riparian states”.76 Hence, Iraq is, on the one hand, calling for a “fair and reasonable utilization based on international law”77 while it is, on the other hand, expressly concerned to primarily secure acquired rights. Generally, international water law does not recognize a hierarchy between different uses.78 Established uses are but one factor that states should consider when determining equitable and reasonable utilization. Rather than suggesting a different interpretation of the equitable and reasonable use principle, Iraq’s position more likely expresses a certain fear with regard to the lack of consideration of existing uses in negotia­ tions with its co-riparians. In general, as has become clear from the above analysis, one of the main obsta­ cles for the Euphrates and Tigris riparians to agree on a way to share their com­ mon waters is that they have different ideas about criteria to determine equitable and reasonable uses. More precisely, they disagree on how to weight the different criteria. c. Current Legal Regime When looking for an express reference to these rules in the existing agreements reached so far,79 one will notice quickly that the search is in vain. What they establish can at best be dubbed rudiments of substantive rules of international

and General Principles”, in: Bodanksy et al., supra note 43, 449 (450 et seq.). As stated supra (see supra note 4) the authors of this contribution, however, contend that the norms described herein are norms of customary international law. 73 Iraqi Ministry of Water Resources, supra note 23, at 1. Although the document dates from 1999 the Ministry of Water Resources still used it as a reference in 2010. 74 Ibid., 13. 75 Historically as well as in modern times Iraq has been the first and principal user of the Euphrates and Tigris, starting with the very beginning of agricultural development in Mesopotamia approximately 4000 B.C. until construction of the first modern water works beginning of the 20th century, cf. H. Elver, Peaceful Uses of International Rivers: The Euphrates Tigris Dispute, 2002, 337. 76 Iraqi Ministry of Water Resources, supra note 23, at 25. 77 Ibid., 29. 78 For the most part, with the exception of special consideration of uses for vital humans needs (cf. art. 10 (1) UN Watercourse Convention, supra note 16), international water law leaves it up to states to agree on criteria for sharing. 79 For an overview see Kirschner / Tiroch, supra note 1.



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law. Nevertheless, they set some parameters and offer a basis for any future negotiation. In the 1946 Treaty of Friendship and Neighborly Relations between Iraq and Turkey,80 more precisely its Protocol No. 1 relative to the Euphrates and Tigris, both states underscore the importance of the construction of conservation works on the rivers to regulate the water flow and to protect Iraq from the consequences of floods.81 It goes on to demand that the parties shall construct the envisaged conservation works “in the interest of both countries”.82 Whereas these stipula­ tions may suggest the inclusion of certain equity considerations and perhaps a basic conviction to prevent the causing of harm (no-harm rule), they more likely reflect an expression of “standard neighborhood law” of the time,83 requiring states to generally take legitimate interests of their neighbors into consideration.84 This is, for the time, also not very surprising since the rules and principles of international water law regarding non-navigational uses were still in a rather embryonic stage. Nevertheless, the treaty documents a sincere attempt by the two riparians to find a way to accommodate individual interests with regard to the Euphrates and Tigris. Finally, it must be added, that the agreement stems from a time when Turkey was not yet making extensive use of the two rivers’ waters. Subsequently, their relationship deteriorated85 and the planned measures were never implemented. The 1987 Protocol on Matters Pertaining to Economic Cooperation between Syria and Turkey includes an allocation formula with respect to the Euphrates: Turkey agreed to allow a yearly average flow of more than 500 m³/s through to Syria. If the monthly flow falls under this level, it, additionally, accepted to make up for the difference in the following months.86 Two years later, Iraq and Syria also agreed upon a formula fixing the water share between them: Iraq was to get 58 % and Syria the remainder of 42 % of the Euphrates waters.87 In contrast to the preceding Turkish-Syrian agreement, which apportions the waters according to fixed quotas, the joint minutes provide for more flexibility to adapt to changing circumstances by referring to certain percentages of available water (for instance,

80 Treaty of Friendship and Neighborly Relations (1946), supra note 28. 81   Ibid., preamble. 82 Ibid. 83 R. A. Hager, “The Euphrates Basin: In Search of a Legal Regime”, Georgetown Int’l Envr. Law Review 3 (1990), 207 (214, 215). 84 L. Boisson de Chazournes / D. Campanelli, “Neighbour States”, in: Wolfrum, supra note 30, 2006, at para. 11. 85 See A. Kibaroglu in this book. 86 Para. 6 Protocol on Matters Pertaining to Economic Cooperation (1987), supra note 27. This provision was included with a view to appease Syria in light of the upcoming impounding of the Atatürk dam. See Kirschner / Tiroch, supra note 1, at 348 et seq., 371. 87 Para. 1 Joint Minutes Concerning the Provisional Division of the Waters of the Euphra­ tes River (Iraq-Syria) (signed 17 April 1989), available at: .

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in the case of water shortage due to drought).88 Still, both agreements are very narrow in focus and basically deal with one single issue only: the allocation of water between the riparians, leaving out important aspects, such as managing (conflicting) uses, water quality and resource protection. This can, however, most likely be explained by the fact that, at the time, the riparians were mainly focusing on the expansion of individual irrigation-schemes and hydropower production,89 thus, being predominantly occupied with quantity related water issues. Another reason for their limited scope may be that both agreements were considered provisional until a final agreement on the Euphrates waters would be reached among the three riparians.90 Moreover, since there is little information available on how these quotas came to be, which criteria were considered and how they were weighted, it is difficult to analyze their reasonableness and equity. Yet, what can be said is that an equitable and reasonable formula would clearly need to be negotiated by all riparians together. In the early 2000s, Iraq and Syria concluded a specific agreement for the pur­ pose of setting up a pumping station on the Tigris, which, inter alia, lays down the technical details with regard to the amounts of water Syria may withdraw.91 Arti­ cle 6 of the agreement calls upon Syria not to discharge agricultural and drainage water into the river so as to avoid pollution of the waters reaching Iraq.92 This can be regarded as a rudimentary inclusion of the no-harm rule. Interestingly, the agreement also contains a very general, blanket clause-like reference to the UN Watercourse Convention, stipulating that “all issues not provided for in this agreement shall be dealt with under the Convention (. . .)”.93 The meaning of this clause is not completely clear. The wording suggests that the UN Watercourse Convention could be used as a fill-in for any gaps in the agreement. This would include the substantive sharing rules of equitable and reasonable utilization and no-harm, as they are not explicitly mentioned therein. According to the rules of treaty interpretation the provision would, however, need to be seen in light of the object and purpose of the agreement,94 which is clearly narrow in focus, and does not display any intention of the parties to comprehensively regulate the use of the Tigris. Nevertheless, it certainly underscores their commitment to the rules of international water law as enshrined in the UN Watercourse Convention. 88 The issue of the rigid and inflexible quota has already caused Turkey difficulties in the past. On this issue see N. Bremer’s contribution in this book. 89 See A. Kibaroglu in this book. 90 Para. 6 Protocol on Matters Pertaining to Economic Cooperation (1987), supra note 27; Preamble Joint Minutes Concerning the Provisional Division of the Waters (1989), supra note 87. 91   Pumping Station Agreement (2002), supra note 28. 92 On this particular article see also section III. 3 infra. 93 Art. 7 Pumping Station Agreement (2002), supra note 28. 94 Cf. art. 31 (1) VCLT, supra note 71. The rules of treaty interpretation as established in the VCLT reflect customary international law, see O. Dörr, “Article 31”, in: Dörr / ­Schmalenbach, supra note 71, 521 (523), and are, thus, also binding on Iraq, see supra note 71.



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2. Procedural Rules and Institutional Mechanisms The success of a sharing agreement is also largely dependent on rules of proce­ dure. Not only are they part and parcel of achieving the aims of the substantive rules, but they offer a predictable framework for states when developing interna­ tional watercourses which fosters stability and can help avoid dispute. The duty to cooperate is considered an overarching principle embracing all procedural obligations.95 It requires states to co-ordinate their actions so as to achieve a specific goal.96 Continuous cooperation is not only a necessary and indispensable requirement for the effective functioning of other procedural rules, but also the driving force for the attainment, as well as the maintenance, of an equitable sharing of the uses and benefits of an international watercourse.97 More specific procedural duties further shape the duty to cooperate. The most important of these being, inter alia, the obligation of prior notification, the obli­ gation to exchange data and information, the obligation to consult with poten­ tially affected states and the obligation to conduct an environmental impact assessment (EIA).98 To facilitate cooperation and implement related duties, states frequently resort to the formation of joint bodies and commissions.99 Not only do they provide the institutional basis to structure negotiations and provide a forum to, for instance, regularly exchange data and information, but, in more general terms, they repre­ sent the primary mechanism to support and ensure continued implementation of, and compliance with an agreement.100 a. Cooperation in the Joint Technical Committee The most ambitious and far-reaching form of cooperation between the riparians was a joint technical committee (JTC). The establishment of a joint body or insti­ tution to enhance cooperation in water issues came up for the first time in the 1960s, when the riparians started to meet on a trilateral basis due to upcoming plans to impound large dams along the Euphrates (Keban, Tabqa, Haditha).101 The JTC had originally been proposed by Turkey as a forum for technical experts from all three countries to monitor the discharges of the rivers, study and determine the irrigation needs of each riparian and to eventually pave the way as a platform

   95 On the issue of cooperation as a legal duty see McCaffrey, supra note 10, at 465 et seq.    96 R. Wolfrum, “Co-operation, International Law of”, in: Wolfrum, supra note 30, para. 2.    97 Cf. McCaffrey, supra note 10, at 466.    98 B. Baker Röben, “International Freshwaters”, in: F. L. Morrison / R. Wolfrum (eds), International, Regional and National Environmental Law, 2000, 285 (303, 304).    99 McCaffrey supra note 10, at 470 et seq. 100 P. Wouters, “The International Law of Watercourses: New Dimensions”, Collected Courses of the Xiamen Academy of International Law 3 (2010), 347 (407). 101   K  ibaroglu, supra note 60, at 223 et seq.

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to prepare a water sharing agreement.102 Although Iraq had initially pushed for a permanent JTC, meetings were only convened on an ad-hoc basis. There was also disagreement over the functions the JTC should exercise,103 as well as the scope of its jurisdiction (whether it should be limited to the Euphrates or also include the Tigris).104 Nevertheless, the riparians managed to hold a series of meetings on a sporadic basis before relations severed due to political tensions caused through the unilateral filling of the Keban and Tabqa dams in the mid 1970s.105 Another JTC was formed again in 1980 between Turkey and Iraq,106 with Syria joining in 1983, but it also met only sporadically and cooperation was mainly on a technical level. The primary topic of discussion was the so-called Güneydoğu Anadolu Projesi (South-East Anatolia Project—GAP) works being planned and built in south-eastern Turkey. Of particular concern was the building of the Atat­ urk dam. The JTC was to identify a reasonable and appropriate method for water allocation,107 but, eventually, was unable to achieve its purpose. After 16 meet­ ings, it concluded its last session in 1993. The parties had split over the question of formulating a proposal to share the rivers; in particular, they could not agree on a regime to determine their equitable utilization.108 Throughout the 1990s, a variety of bilateral and trilateral talks were held but they repeatedly failed.109 It was not until the late 2000s that a new dynamic expressed in cooperative foreign policy initiatives, which had also reactivated cooperation on water issues, could be witnessed.110 In 2007, Turkey and Syria decided to revive the JTC and held a series of meetings. They agreed to share information on meteorological patterns and water quality. This was followed in 2009 by a great variety of MoUs signed between the riparians.111

102 A. Kibaroglu / W. Scheumann, “Euphrates-Tigris River System: Political Rapproche­ ment and Transboundary Water Cooperation”, in: A. Kibaroglu et al., Turkey’s Water Policy, 2012, 277 (282). 103 Kibaroglu et al., supra note 36, at 61. 104 Kibaroglu, supra note 60, at 224; Elver, supra note 75, at 406. 105 Cf. A. Kibaroglu in this book. 106 Some authors mention a Protocol of the Joint Economic Committee between Turkey and Iraq from 1980, which the authors of this contribution were, however, unable to obtain; see e.g. A. T. Wolf / J. T. Newton, Case Study Transboundary Dispute Reso­ lution: the Tigris-Euphrates Basin, 3, see ; Elver, supra note 75, at 421, referring to a “Protocol for Techno-Economic Cooperation”. 107 Kibaroglu et al., supra note 36, at 61. 108 Elver, supra note 75, at 407–408. 109 It should be noted that the information and literature on the events occurring after 1990 is even scarcer and harder to obtain than before. 110   See A. Kibaroglu in this book. 111   Turkey and Iraq agreed to cooperate in various fields, such as politics, economy, energy, culture, security as well as water and signed 48 MoUs. The agreement on water issues concerned the exchange of data, information and expert knowledge, the effi­cient use of water resources and the strengthening of the JTC. Similarly, Turkey



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Nevertheless, and despite the fact that the “on-and-off”112 JTCs was not able to progress on the question of how to share the waters of the Euphrates and Tigris, it is said to have served the riparians as a valuable means of communication.113 It offered a forum in which states could negotiate and, at the same time, shows that they saw the need for this. In turn, alongside a difficult political situation and the riparians persistence with regard to their positions,114 shortcomings of the JTC also included that it was not formally established on legal grounds. Although individual treaties refer to the JTC,115 there is no document formally establishing it as a permanent joint body (as has been the case, for example, with institutions in other river basins such as the Danube, the Mekong, the Niger or the Rhine).116 b. Information Exchange and Joint Monitoring It is of crucial importance that states regularly confer with each other and exchange data and information concerning the condition of a watercourse.117 The obligation is closely linked with the principle of equitable and reasonable utiliza­ and Syria enhanced their cooperation by signing 50 agreements and MoUs, four of which are noted to concern water issues. Finally, sources also refer to a tripartite MoU from 2009 on strengthening cooperation, initiating water education programs, estab­ lishing joint measurement stations, monitoring and evaluating the impact of climate change and exchange of information on these issues. Cf. Strategic Foresight Group, The Blue Peace: Rethinking Middle East Water, 2011, 30, 31, available at: ; see also Kibaroglu / ­Scheumann, supra note 102, at 293, 294; “Turkey, Syria, Iraq Sign MoU for Use of Water Resource”, Xinhuanet News, 4 September 2009, available at: . 112 Elver, supra note 75, at 429. 113 Kibaroglu / Scheumann, supra note 102, at 286. 114 Ibid. 115 See art. 8 Protocol on Matters Pertaining to Economic Cooperation (1987), supra note 27; art. 2 Joint Minutes Concerning the Provisional Division of the Waters (1989), supra note 87, refers to a “joint committee” rather than the JTC; art. 5 Pumping Station Agreement (2002), supra note 28; art. 2 (h) Memorandum of Understanding between the Ministry of Environment and Forestry of the Republic of Turkey and the Ministry of Water Resources of the Republic of Iraq on Water (signed 15 October 2009), on file with the authors (unofficial translation) (MoU on Water), which stipulates that the “frequency of the trilateral JTC meetings will be increased (. . .) if deemed necessary trilateral meetings will be organized at the Ministerial level”. 116 On the Rhine, see K. Tiroch in this book. On the Danube, the Mekong and the Niger see respectively A. F. Zeilinger, “Danube River”, in: Wolfrum, supra note 30; E. Morg­ era, “Mekong River”, in: Wolfrum, supra note 30; S. M. A. Salman, “Niger River”, in: Wolfrum, supra note 30. 117 This obligation has been recognized in a variety of instruments, such as art. 8 Conven­ tion on Long-Range Transboundary Air Pollution (done 13 November 1979, entered into force 16 March 1983) UNTS Vol. 1302 No. 21623; art. 5 Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 Septem­ ber 1988) UNTS Vol. 1513 No. 26164; arts 6 and 13 UNECE Helsinki Convention, supra note 31; art. 9 UN Watercourse Convention, supra note 16; art. 6 Indus Waters Treaty

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tion, as without exchange of data and information or joint monitoring and data collection, the ongoing evaluation of uses along with the weighting of all relevant factors as well as the adequate protection of a watercourse are rendered difficult, if not impossible.118 References to information exchange or even joint monitoring through the establishment of observation stations to collect relevant technical data are found quite frequently in several of the existing treaties and understandings in the Euphrates-Tigris region. In the majority, these references are, however, limited to the implementation of certain projects rather than imposing general duties. Protocol No. 1 of the 1946 Treaty of Friendship between Iraq and Turkey pro­ vides for joint assessment, monitoring and information exchange mechanisms. Alongside the installation of permanent observation stations in Turkish terri­ tory, Turkey committed itself to regularly communicate measuring results to the competent Iraqi authorities, as well as to provide Iraqi experts with assistance and facilities so that they can collect “hydraulic, geological and other informa­ tion” needed for developing the waters of both rivers and their tributaries.119 It is interesting to note that these data collections were not necessarily foreseen for the development of downstream waters, since in the preamble both parties consider that the most suitable location for construction works was likely to be in Turkish territory. These quite far-reaching obligations may appear striking today. However, this agreement stems from a time when Turkey was not (yet) making extensive use of the two rivers’ waters. Presumably, Iraq would nowadays also not be interested in major water (control) infrastructure outside its borders. Never­ theless, it shows an early acknowledgment by both states of the importance of cooperation, sharing of information and the need for consultation for the mutual benefit of both. Yet, it includes no clear standards for such cooperation.120 More­ over, the agreement did not include Syria and has also fallen into disuse. Syria signed two agreements to set up pumping stations for water withdrawal from the Tigris river with Iraq in 2002 and with Turkey in 2009. Both allow Syria to withdraw water from the river on the condition that it reports on all phases of implementation of the project and the quantities withdrawn. In the 2002 agreement the parties agreed to jointly monitor the river’s discharges by setting up respective monitoring stations. Particular focus was put on monitoring the river’s pollution rate. Both parties further agreed to compare their results from

1960, UNTS Vol. 419 No. 6032; for further references see McIntyre, supra note 18, at 333–337. 118   McCaffrey, supra note 10, at 478, 479. 119   See arts 1, 3 Treaty of Friendship and Neighborly Relations (1946), supra note 28. 120 R. A. Lien, “Still Thirsting: Prospects for a Multilateral Treaty on the Euphrates and Tigris Rivers Following the Adoption of the United Nations Convention of Interna­ tional Watercourses”, B. U. Int’l L. J. 16 (1998), 273 (286).



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the examination of water samples from both countries and in case “any varia­ tion is noticed, both Parties shall convene a meeting (. . .) to define the remedial action”.121 The 2009 agreement does not contain such far-reaching stipulations with regard to joint monitoring. However, it lays a strong emphasis on regular communication of data and information related to the planning and operation of the pumping station on Syrian territory. In the same year, Turkey and Syria also concluded an MoU on the “efficient utilization of water resources and combating drought”.122 Less than one month later, Turkey signed another agreement with Iraq referring more generally to ‘water’, yet also specifically mentioning the Euphrates and Tigris.123 Both MoUs quite often make reference to joint monitoring and the need for information exchange on a range of issues and more remarkably foresee the establishment of a joint database on hydrological and meteorological data with the possibility to invite the respective ‘missing’ party to join them in this cooperation. The later MoU between Iraq and Turkey, even and consequently, speaks of Syria’s involve­ ment in the database. Turkey’s efforts to agree on similar provisions with both its riparian neighbors certainly constituted a remarkable progress in cooperative relations between the riparian states.124 c. The Obligation to Notify and the Obligation to Consult The obligation to notify125 requires a state to provide prior and timely notification to other watercourse states about planned activities within its territory or under its control that may have a significant adverse effect.126 Prior notification is, thus,

121   Art. 6 (2) Pumping Station Agreement (2002), supra note 28. 122 Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Efficient Utilization of Water Resources and Combating Drought (signed 23 September 2009), on file with the authors (unofficial translation) (MoU on Efficient Utilization of Water Resources). 123 MoU on Water (2009), supra note 115. 124 Ibid., art. 2 (f.). 125 For conventions and other instruments that contain a similar obligation see e.g. Prin­ ciple 19 Rio Declaration on Environment and Development, supra note 51; art. 14 Con­ vention on Biological Diversity (concluded 5 June 1992, entered into force 29 December 1993) UNTS Vol. 1760 No. 30619; arts 3, 10 Convention on the Transboundary Effects of Industrial Accidents (done 17 March 1992, entered into force 19 April 2000), ILM 31 (1992), 1333; see Section III UN Watercourse Convention, supra note 16; art. 6 UNECE Helsinki Convention, supra note 31; art. 4 SADC, supra note 62; for further references see: UN ILC, Special Rapporteur S. C. McCaffrey, “Third Report on the Law of the Nonnavigational Uses of International Watercourses”, UN Doc. A/CN.4/406 of 11 December 1981, paras 63 et seq.; McCaffrey, supra note 10, at 473. 126 Cf. art. 12 UN Watercourse Convention, supra note 16.

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an important means to help promote the equitable and reasonable use of a river.127 It prepares co-riparians and enables them to respond by making respective arrangements. As a logical precondition, a state needs to be informed adequately in order to enable it to assess potential (environmental) implications of planned measures correctly. Therefore, it is necessary that a notification includes suffi­ cient information, including the results of any EIA.128 Closely connected to this obligation is the duty to enter into consultations with co-riparian states.129 This is not restricted to planned measures but arises in a variety of circumstances.130 Generally, it requires states to communicate in order to find strategies on how to accommodate different interests. Consultations are a step that precedes formal negotiation, providing a first opportunity for states to exchange their views.131 In the Euphrates-Tigris region there is no established consultation or notifi­ cation procedure in place. Turkey, in particular, has more than once voiced its reservations about the detailed mechanism of notification established by the UN Watercourse Convention.132 According to the statement issued by the Turk­ ish UN Ambassador at the occasion of a plenary meeting of the General Assem­ bly prior to the adoption of the UN Watercourse Convention “[the] mechanism for planned measures [established by the draft Convention] (. . .) has no basis in general and customary international law.”133 Whereas there is evidence that a state is required by international customary law to notify potentially affected co-riparians about planned measures,134 this does not necessarily extend to the detailed and far-reaching notification procedure provided for in the UN Watercourse Convention.135 Moreover, Turkey’s reluctance seems to be based mainly on an understanding of the obligation to notify to include the need to obtain prior consent from its co-riparians. While it flows from the obligation to notify, if not from the principle of good faith, that the notifying state must stay 127 McCaffrey, supra note 10, at 473. 128 See art. 12 UN Watercourse Convention, supra note 16; for further information see McIntyre, supra note 18, at 324 et seq. 129 A great variety of treaty instruments require states to enter into consultations, cf. e.g. art. 5 Convention on Environmental Impact Assessment in a Transboundary Context (done 25 February 1991, entered into force 10 September 1997), ILM 30 (1991), 802; art. 4 Convention on the Transboundary Effects of Industrial Accidents, supra note 125; art. 5 Convention on Long-Range Transboundary Air Pollution, supra note 117; for further references see McIntyre, supra note 18, at 337 et seq. 130 See also arts 3 (5), 4, 7 (2), 11, 17, 18 (2) and (3), 19 (3), 21 (3), 24 (1), 26 (2), 30 UN Water­ course Convention, supra note 16. 131   M  cCaffrey, supra note 10, at 477. 132 Turkey Water Report 2009, supra note 37; UN GAOR, UN Doc. A/51/PV.99 of 21 May 1997, 4. 133 UN GAOR, UN Doc. A/51/PV.99 of 21 May 1997, 4. 134 McCaffrey, supra note 10, at 473. Also citing further references. 135 Tanzi / Arcari, supra note 8, at 210. See also for information on the UN Watercourse Convention procedure.



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the implementation of its plans for a reasonable period of time to enable the notified state to react and make a reasonable impact assessment,136 this does not give the notified riparian a right to veto.137 Rather, the former must consult the latter to find a way to reconcile different interests.138 Nonetheless, Turkey’s reluctance in this respect cannot be interpreted in such a way to conclude that it would reject any transboundary cooperation.139 Early and more recent agree­ ments and understandings provide evidence to the contrary. Some make refer­ ence to the importance of notifying and consulting each other. In 1946, when all three riparians were not yet significantly developing their waters,140 Turkey pledged that it shall keep Iraq informed of her plans for the construction of conservation works on either of the two rivers or their tributaries, in order that these works may (. . .) be adapted (. . .) to the interest of both Iraq and Turkey.141

Indeed, this very exemplary clause fell into disuse even before Turkey began the construction of the GAP and has so far not been affirmed in any subsequent trea­ ties or understandings. The 1987 Protocol between Syria and Turkey touches upon the issue of con­ sultation or rather records Turkey’s so-called ‘Peace Pipeline’ proposal made to Syria.142 It establishes that Turkey informed Syria about the details of the pro­ posed project. Syria, then again, stated its interest in and principal endorsement of the project under the premise that Turkey commissions an international con­ sultancy firm with a technical and economic feasibility study which Syria agreed to facilitate on its portion of the project. Finally, Syria agreed to enter into nego­ tiations in case results were positive.143 Moreover, the protocol stipulates that “the two Sides shall work together with the Iraqi Side to allocate the waters of the rivers (. . .) in the shortest time possible,”144 which can be regarded as a call, albeit a very general one, for joint efforts to communicate and negotiate with their riparian neighbor (obligation to consult). Finally, the Pumping Station MoU signed between Syria and Turkey in 2009 contains a provision requiring Syria ‘to notify’ Turkey on the progress of

136 Cf. ibid. 137 Cf. Affaire du Lac Lanoux, supra note 45, at 306. 138 McCaffrey, supra note 10, at 476; A. Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint, 1993, 165. 139 A. Kibaroglu et al., “Cooperation on Turkey’s Transboundary Waters: Analysis and Rec­ ommendations”, in: A. Kibaroglu et al., supra note 102, at 313 (317, 318). 140 See A. Kibaroglu in this book. 141   Art. 5 Treaty of Friendship and Neighborly Relations (1946), supra note 28. 142 Kirschner / Tiroch, supra note 1, at 371. 143 Para. 10 Protocol on Matters Pertaining to Economic Cooperation (1987), supra note 27. 144 Ibid., para. 7.

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i­ mplementation with regard to the planned pumping station.145 Yet, since this notification is restricted to an already agreed ‘joint’ project rather than laying down a general obligation to notify one another about planned activities, it should probably rather be classified as a provision of information exchange. Whereas several of the existing agreements reached between the riparians make explicit reference to ‘cooperation’ on water issues, the above analysis shows that they do not really establish an effective regime of procedural rules or joint institutional mechanisms to facilitate it.146 Some procedural rules are missing entirely, such as the obligation to conduct an EIA. 3. Dispute Settlement Disputes147 concerning the use of shared waters “are both common and current”.148 With fresh water being the lifeline to sustain populations, economies and ecosystems, finding agreement over a method of sharing is often a sensitive issue. In a region, such as the Euphrates and Tigris, where the riparians have not yet been able to sufficiently develop terms for sharing their waters, the likelihood of dispute may be even greater. In fact, the relation between the riparians has been characterized by water-related conflicts. In the mid 1970s, water issues even brought Iraq and Syria on the verge of armed hostilities.149 a. International Water Law As a general rule of international law, states have an obligation to peacefully settle any disputes between them.150 Article 33 of the UN Charter contains an extensive (but not exhaustive) list of dispute settlement means. These include, on the one hand, non-judicial (diplomatic) means, such as negotiation, inquiry, mediation, conciliation, and, on the other hand, judicial means, such as arbitra­ tion or judicial settlement through, for instance, recourse to the International

145 Art. 1 Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic on Establishment of a Pump­ ing Station in the Territories of the Syrian Arab Republic for Water Withdrawal from the Tigris River (signed 23 September 2009), on file with the authors (unofficial trans­ lation) (Pumping Station MoU). 146 See also N. Bremer in this book. 147 The term ‘dispute’ is understood in a broad sense ranging from minor disagreement to serious controversies, see S. C. McCaffrey, “Water Disputes Defined: Characteristics and Trends for Resolving Them”, in: International Bureau of the Permanent Court of Arbitration (ed.), Resolution of International Water Disputes, 2003, 49 (49 et seq.). 148 P. Wouters et al., “Water Security, Hydrosolidarity, and International Law: A River Runs Through it . . .”, in: Y. Intl. Env. L. 19 (2008), 97 (119). 149 See Kirschner / Tiroch, supra note 1, at 347 et seq. 150 See art. 2 (3) Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945), Stat. 59 (1945), 1031.



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Court of Justice.151 States are free to resort to the means of their own choice; there is no hierarchy between them. Modern water law agreements often contain dispute settlement clauses.152 The UN Watercourse Convention also sets out respective procedures to settle potential disputes in its article 33. However, it should be noted that the provi­ sion as contained in the UN Watercourse Convention does not enjoy the status of customary law and was hotly debated in the UN GA working group. States were, in particular, divided over the question whether a framework agreement should at all, and if so to what extent, include dispute settlement mechanisms. In particular, the fact-finding procedure endorsed in article 33 UN Watercourse Convention, which can be launched unilaterally by one party without requiring the consent of other parties to the dispute, was highly contested in the UN GA working group.153 b. Positions of the Riparians Turkey seems to be particularly sensitive about the issue of third-party dispute settlement, at least, when it comes to disputes concerning fresh water. It has made clear that one of the major reasons for voting against the adoption of the UN Watercourse Convention was its dispute settlement clause. According to Turkey, it should be up to the states concerned to determine the rules of proce­ dure for dispute settlement. Therefore, in particular, it argues that compulsory

151   Two prominent ICJ cases concerned the utilization of transboundary rivers. See ­Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), supra note 45; and more recently Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010), 14. See also the case currently pending between Costa Rica and Nicaragua concerning the Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) available at: . The ICJ is, however, not necessarily the preferred forum for judicial adjudication of environmental disputes; see A. Boyle, “Environmental ­Dispute Settlement”, in: Wolfrum, supra note 30, 2009, para. 2. 152 See e.g. Convention on Cooperation for the Protection and Sustainable Use of the Dan­ ube River (signed 29 June 1994, entered into force 22 October 1994) BGBl II 1996/874; Convention on the Protection of the Rhine (signed 12 April 1999, entered into force 1 January 2003) EU OJ L289/31 of 16 November 2000; Agreement on the Coopera­ tion for the Sustainable Development of the Mekong River Basin (done 5 April 1995, entered into force 5 April 1995), ILM 34 (1995), 864; SADC, supra note 62; UNECE Helsinki Convention, supra note 31. 153 See the Summary Records of UN GA Sixth Committee which was charged by UN GA Resolution, UN Doc. A/Res/49/52 of 9 December UN Doc. A/CONF.48/14/Rev.1 1994 with convening as a working group to elaborate a framework convention on the basis of the ILC Draft Articles, available at: .

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procedures154 do not fit into a framework convention.155 Nevertheless, it cannot be observed that Turkey generally opposes (or rather persistently objected to)156 the rules of international dispute settlement, which are not only enshrined in the UN Charter, but are also reflecting customary international law.157 Syria, on the contrary, was among the states that pleaded for the inclusion of a mandatory dis­ pute settlement provision in the UN Watercourse Convention, while Iraq seems to have been rather silent on the issue.158 c. Current Legal Regime Whereas the early treaties between the riparians of the Euphrates and Tigris do not anticipate the possibility of dispute, several of the more recent agreements and MoUs contain an almost identical clause stipulating that disputes shall be resolved through direct bilateral negotiations only.159 These clauses clearly seem to express the Turkish anxiety with regard to third-party dispute resolution. How­ ever, it should be noted that such clauses are not uncommon. In fact, a majority of disputes are resolved by negotiation rather than submitting them to thirdparty settlement.160 Likewise, Iraq and Syria agreed on bilateral negotiations as

154 Albeit the outcome of the fact finding commission is not binding, it is considered a ‘compulsory’ mechanism since it can be launched unilaterally by one party with­ out requiring the consent of other parties to the dispute. Cf. P. Wouters, “Universal and Regional Approaches to Resolving International Water Disputes: What Lessons Learned from State Practice”, in: International Bureau of the Permanent Court of Arbi­ tration (ed.), Resolution of International Water Disputes, 2003, 111 (125) who states that it is, thus, perhaps more “akin to compulsory conciliation” (emphasis added). 155 See UN Doc. A/51/275 of 6 August 1996, 15, 68; see also UN Doc. A/C.6/51/SR.59 of 16 December 1997, 3; UN Doc. A/51/PV.99 of 21 May 1997, 4. 156 In principle once a rule of customary international law has been established a state can not exempt itself unilaterally. An exception to this rule is made, when a state has persistently objected to a rule during its formative stage, O. Elias, “Persistent Objector”, in: Wolfrum, supra note 30, 2006, para. 1. 157 Cf. Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America) ICJ Reports 14 (1986), para. 290; A. Pellet, “Peaceful Settle­ ment of Disputes”, in: Wolfrum, supra note 30, 2010, para. 5. 158 Cf. UN Doc. A/C.6/51/SR.59 of 3 April 1997, 6; UN Doc. A/C.6/51/SR.20 of 14 October 1996, 1. 159 See art. 8 Pumping Station Agreement (2002), supra note 28; art. 10 Pumping Station MoU (2009), supra note 145; art. 8 Memorandum of Understanding on Remediation of Water Quality (2009), supra note 29; art. 7 MoU on Efficient Utilization of Water Resources (2009), supra note 122; art. 8 MoU on Water, supra note 115. 160 Wouters notes a regional difference, whereas states in Africa or Europe are more will­ ing to accept third-party involvement, states in North America and Asia put more emphasis on joint institutions and bodies with basically no recourse to third-party settlement, Wouters, supra note 154, at 111. See also S. C. McCaffrey, “Water Disputes Defined: Characteristics and Trends for Resolving Them”, in: International Bureau of the Permanent Court of Arbitration, supra note 154, 49 (89).



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their preferred means of dispute resolution.161 This, however, only concerns dis­ putes in relation to the specific agreement. For disputes relating to the applica­ tion and interpretation of the UN Watercourse Convention, Iraq and Syria have accepted the dispute settlement procedure established by article 33 UN Water­ course Convention.162 IV. Environmental Protection of International Rivers 1. Environmental Problems of the Euphrates and Tigris Rivers Heavy use of the Euphrates and Tigris waters has not only led to controversies over the sharing of the two rivers but has also had its effect on their environ­ ment. Both rivers suffer from over-exploitation and environmental degradation. Water shortage and decline of water quality, caused, inter alia, by excessive water withdrawals, irrigation return flow and other pollution input are among the core problems.163 Rapid salinity increase, severe deterioration of the marshlands and flood impacts constitute further challenges.164 The fact that water treatment facil­ ities and other water infrastructure have been destroyed during different wars in the region also adds to the problem.165 Moreover, the Euphrates and Tigris region, which is already struggling with unfavorable climate conditions, is affected by climate change. According to a recent report of the Intergovernmental Panel on Climate Change, the Euphrates and Tigris region is seen as particularly vulnerable in this respect.166 2. International Water Law As already mentioned above,167 traditionally, international agreements between riparian states primarily aimed at accommodating diverging utilization interests of international freshwater resources. For a long time, environmental benefits 161   Art. 8 Pumping Station Agreement (2002), supra note 28. 162 See art. 33 UN Watercourse Convention, supra note 16, stipulating that the procedures set forth therein apply in the “absence of an applicable agreement”. 163 According to the estimates of some recent studies, the Euphrates and Tigris region is suffering from the second fastest water depletion rate in the world, see “The Less Fertile Crescent: the Waters of Babylon are Running Dry”, The Economist, 9 March 2013, avail­ able at: . 164 D. Grey / D. Blackmore, Iraq—A Strategy to Negotiate with Co-Riparian States Respond­ ing to a “Note Verbale” to RBAS-UNDP, 2011, on file with the authors, 8. 165 G. R. Pring / B. Salman Banaei, “Tigris and Euphrates Rivers”, in: Wolfrum, supra note 30, para. 8. 166 B. C. Bates et al. (eds), Climate Change and Water—Technical Paper of the Intergovern­ mental Panel on Climate Change, 2008, 87. 167 See part II. 1. on the definition of international watercourses.

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were to a great extent mere side-effects in case they coincided with territorial or other interests of states, such as economic or health-related considerations.168 It is comparatively recent that states have begun to develop norms and stan­ dards specifically focusing on the protection of water resources.169 Nowadays modern agreements no longer predominantly reflect the interests of states in using a watercourse but adopt a more environmentally-focused approach. Hence, watercourse agreements are increasingly based on ecological objectives, such as pollution prevention and reduction and the ecological protection, restoration or conservation of a water resource. Likewise, a development away from a frag­ mented approach, concentrating on single-subject issues, such as certain types of pollutants, towards integrated, holistic management of international water­ courses can be observed.170 A growing body of treaty practice demonstrates the broad commitment to the protection of water resources.171 More and more agreements are specifically designed to facilitate cooperation in environmental matters and ensure the eco­ logical integrity of the resource by prescribing environmental protection norms, standards and measures.172 In that context, it should be highlighted that the obligation to protect an international watercourse goes further than the above mentioned no-harm rule. It requires states to protect watercourses per se and is, thus, not dependent on the harm suffered by other states.173 In terms of concrete obligations, environmental agreements regulate, inter alia, the discharge of waste water, set emission limits and water quality objectives, prescribe the application of best available technologies and techniques, establish licensing procedures, or include the obligation to conduct EIAs, to name but a few examples. Moreover, joint bodies and institutions have been established with the specific goal of fur­ thering cooperation to protect water resources and related eco-systems.174 This trend in international water law follows the emergence and develop­ ment of (customary) principles and rules in international environmental law. These include, among others, the obligation to prevent or abate (transboundary)

168 McIntyre, supra note 9, at 1. 169 S. C. McCaffrey, “International Watercourses, Environmental Protection”, in: Wolfrum, supra note 30, para. 3. 170 Cf. Brunnée / Toope, supra note 11, at 55. 171   See e.g. Convention on Cooperation for the Protection and Sustainable Use of the Dan­ ube River, supra note 152; Convention on the Protection of the Rhine, supra note 152; Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin supra note 152; UNECE Helsinki Convention, supra note 31; SADC, supra note 62; see also McCaffrey, supra note 169, at paras 28–33. 172 U. Beyerlin, Umweltvölkerrecht, 2000, 85; U. Beyerlin / J. Grote Stoutenburg, “Environ­ ment, International Protection”, in: Wolfrum, supra note 30, para. 57 et seq. 173 See Tanzi / Arcari, supra note 8, at 243; McCaffrey, supra note 169, at para. 8. 174 See e.g. McIntyre, supra note 18, at 372 et seq.



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environmental harm, the precautionary principle; the polluter pays principle; sustainable development and the obligation to protect different eco-systems.175 A key concept that has emerged in that context is the so-called integrated water resources management (IWRM).176 A commonly used definition describes IWRM as a process which promotes the co-ordinated development and management of water, land and related resources, in order to maximize the resultant economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems.177

Furthermore, there are other legal instruments that may directly or indirectly influence the protection of an international watercourse. For instance, Iraq, Syria as well as Turkey are parties to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention).178 Recognizing the importance of wetlands and their resources, the Ramsar Convention creates a framework for international cooperation, as well as national and local action, for their conservation and wise use.179 In order to achieve its objectives, the Ramsar Convention provides for the establishment of a list of Wetlands of International Importance, the so-called ‘Ramsar sites’. In total, 15 wetlands of the three coun­ tries were designated as Ramsar sites in accordance with article 2 of the Ramsar Convention.180 Among them is the Hawizeh Marsh, which is part of the Meso­ potamian marshlands complex, located for most part in the south of Iraq near the confluence of Euphrates and Tigris.181 Another example for an international 175 Ibid., 191 et seq; generally on principles of environmental law see: R. Wolfrum, “Interna­ tional Environmental Law: Purposes, Principles and Means of Ensuring Compliance”, in: Morrison / Wolfrum (eds), supra note 98, 3. 176 U. Beyerlin / T. Marauhn, International Environmental Law, 2011, 89, 90. 177 Even though there is no general definition of IWRM, the definition adopted by the Global Water Partnership has been widely accepted; Global Water Partnership Techni­ cal Advisory Committee, Integrated Water Resources Management, 2000, 22; UNESCO, Integrated Water Resources Management (IWRM) in Action, 2009, 3. See also R. Wolfrum / A. J. Kirschner in this book. 178 Convention on Wetlands of International Importance Especially as Waterfowl Habi­ tat (signed 2 February 1971, entered into force 21 December 1975) UNTS Vol. 996 No. 14583. 179 The concept of wise use refers to “the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development” (footnotes omitted); Ramsar Conference of Parties, Reso­ lution IX.1 Annex A: A Conceptual Framework for the wise use of wetlands and the maintenance of their ecological character, see . 180 As of 5 December 2012; see List of Wetlands of International Importance, available at: . Thirteen of them were, however, designated by Turkey. 181   The other part is located in Iran; see “The Annotated Ramsar List of Wetlands of Inter­ national Importance: Iraq”, available at: .

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instrument that may contribute to the safeguarding of the Euphrates and Tigris rivers182 is the Convention on Biological Diversity, which was also ratified by all three riparian countries.183 The Convention aims to protect the Earth’s biological resources, including freshwater resources. 3. Current Legal Regime Environmental considerations do not (yet) play a big role in the Euphrates and Tigris region. Nevertheless, some scattered provisions and references which point at the importance of protection of water resources and sustainable development can be found in the more recent agreements concluded between the riparian states. a. 2002 Pumping Station Agreement between Syria and Iraq The 2002 Pumping Station Agreement between Syria and Iraq, for instance, obliges Syria to set up a measuring station on the Tigris river in order to jointly monitor not only water discharges but also water quality. The measuring station should be placed near the main pumping station.184 Syria is, furthermore, required to establish installations to control and examine water samples at the water inlet of the pumping station.185 Article 6 of the agreement is also worth looking at from an environmental perspective since it seeks to prevent pollution of the river’s water. As already mentioned above, it commits Syria not to dispose agricultural drainage water or any other water such as wastewater, into the River Tigris or any watercourses running from the project in the Syrian territory, into the Iraqi territory.186

182 Further important global instruments, inter alia, include the UN Framework Con­ vention on Climate Change with Annexes (adopted 9 May 1992, entered into force 21 March 1994) UNTS Vol. 1771 No. 30822, the Convention on the Conservation of Migratory Species of Wild Animals (concluded 23 June 1979, entered into force 1 November 1983) UNTS Vol. 1651 No. 28395 (Bonn Convention), the Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (opened for signature 14 October 1994, entered into force 26 December 1996) UNTS Vol. 1954 No. 33480, and the Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) UNTS Vol. 1037 No. 15511. 183 Convention on Biological Diversity (concluded 5 June 1992, entered into force 29 December 1993) UNTS Vol 1760 No. 30619; Syria and Turkey are also parties to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (done 29 January 2000, entered into force 11 September 2003), ILM 39 (2000), 1027. 184 Cf. arts 5 (1), 1 (9) Pumping Station Agreement (2002), supra note 28. 185 Ibid., art. 5 (2). 186 Ibid., art. 6 (1), which reads: The Second Party [i.e. Syria] shall be committed to the non-disposal of agricultural drainage water or any other water such as wastewater, into the River Tigris or any watercourses running from the project in the Syrian territory, into the Iraqi territory,



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b. 2009 Pumping Station Agreement between Syria and Turkey In the 2009 Pumping Station Agreement concluded between Syria and Turkey, some, albeit quite limited, environmental considerations can also be detected. According to its article 3, if Syria considers the construction of a water diversion facility or a water collection volume for pumping, it is required to provide Tur­ key with information related to the project, including on possible environmen­ tal effects.187 However, except for the obligation to coordinate with Turkey, the agreement does not make any concrete reference to further action required in case environmental effects are likely to occur. c. 2009 Memoranda of Understanding between Syria and Turkey In the preamble of the MoU on Efficient Utilization of Water Resources,188 the contracting parties acknowledge the importance of sustainable development for the protection and effective utilization of water resources as well as the restora­ tion of water quality. Moreover, the importance of monitoring and assessment of meteorological and hydrological data for, inter alia, preserving water resources in quantity and quality, is stressed. Apart from its preamble, the MoU, however, does not contain any specific references to the protection of water resources. Even though a preamble, in general, does not lay down legal obligations, it may still be of relevance. A preamble usually defines the purposes and considerations for the conclusion of an agreement.189 Moreover, it may perform several func­ tions; in particular, it may be used for the interpretation of agreements.190 The preamble of the MoU might not be very precise but, arguably, its parties may not interpret any provision in a way that would conflict with the aims of sustainable development and the preservation and protection of water resources. This is further underscored by the second MoU concluded between Syria and Turkey which specifically deals with the remediation of water quality.191 Again, the preamble of the MoU highlights the importance of a sustainable development approach in the protection of water resources and improvement

as this constitutes an influencing factor in increasing pollution of the river’s water inflows into the Iraqi territory. 187 Art. 3 Pumping Station MoU (2009), supra note 145, on file with the authors (unofficial translation), which reads: If the creation of a water diversion facility or water collection volume through exca­ vation or construction is being considered for pumping, the Syrian side shall submit all information related to project, construction and all possible environmental effects of this facility to the Turkish side and coordinate with it. 188 MoU on Efficient Utilization of Water Resources (2009), supra note 122. 189 M. M. Mebengue, “Preambles”, in: Wolfrum, supra note 30, para. 1. 190 Ibid., para. 2 et seq., cf. also art. 31 (2) VCLT, supra note 71. 191   MoU on Remediation of Water Quality (2009), supra note 29.

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of water quality and, beyond that, links it to the health and welfare of present and future generations. The agreement aims to reduce water pollution and improve water quality. Cooperation should take place through transfer of knowledge, experience and technology on the basis of equality, reciprocity and mutual benefit.192 Article 3 of the MoU specifies the different forms of cooperation. For instance, the par­ ties shall collaborate in joint scientific-technical research and programmes; exchange officers, experts and researchers; or organize training programmes, meetings, conferences and symposiums. Areas of cooperation are quite extensive and include, inter alia, the comparison of legislative and institutional structures; planning, construction, maintenance and reparation of (water) infrastructure; use of best technologies; water treatment; prevention of pollution originating from agriculture, industry and other sources; or other modern concepts such as the implementation of the polluter pays and cost recovery principles; manage­ ment of cost analysis, incentives and subsidies systems; management of permit, auditing and sanction systems and setting up of emission standards as well as the transition to environmental quality standards.193 It is also noteworthy that article 2 (1) of the MoU recognizes that variations in water quantity might have effects on its quality. In comparison to earlier agreements between the Euphrates and Tigris riparian states, the 2009 MoU in the field of remediation of water quality between Syria and Turkey is by far the most progressive concerning the protection of water resources. It includes many modern concepts and addresses a variety of areas where cooperation is very desirable. Another positive aspect is the possibility— upon mutual consent and invitation of the parties—for other relevant stakehold­ ers, such as government agencies, academic institutions, private enterprises or non-governmental organizations, to participate in these cooperative activities. Moreover, article 6 of the MoU requires each contracting party to designate a national coordinator who is responsible for the management of the envisaged cooperative activities. The national coordinator is also in charge of preparing an annual working program which specifies the concrete activities envisaged under the MoU. However, despite its positive aspects, the MoU still only contains a general guideline for cooperation and does not provide any substantive obligations for the parties, such as concrete emission limits, in order to achieve prevention of pollution and improvement of water quality. The success of such an agreement depends very much on the political will of the parties to carry out their envisaged activities and, consequently, to elaborate, agree on and implement substantive

192 Ibid., art. 1. 193 Ibid., art. 2.



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environmental protection obligations. Nonetheless, the MoU could be seen as a starting point for the future development of such substantive provisions. d. 2009 Memorandum of Understanding between Turkey and Iraq According to its article 1, the 2009 MoU between Iraq and Turkey regulates cooperation for the utilization and protection of water resources between both states.194 Like the two 2009 MoUs concluded between Syria and Turkey, its pre­ amble highlights the importance of sustainable development for the protection and utilization of water resources for the health and wealth of present and future generations. Yet, notwithstanding the explicit reference to the protection of water resources as one of its aims, the rest of the MoU neither specifically addresses similar areas of cooperation, nor makes reference to modern concepts for the protection of the aquatic environment as in the 2009 MoU on remediation of water quality referred to above. Rather, the MoU resembles the 2009 MoU on the efficient uti­ lization of water resources and combating drought between Syria and Turkey. V. Conclusion In sum, the above analysis has made clear that the existing treaties concluded between Iraq, Syria and Turkey fail to establish an effective and comprehensive regime for the sharing of their waters. This can be attributed to the following reasons: To begin with, the riparians have not yet been able to agree on basic parameters for any negotiation: a common understanding of terms. Their disagreement over the definition of the Euphrates and Tigris and their reluctance to compromise or make concessions to the views of their co-riparians constitute a barrier to coop­ eration. In addition, their different interpretation and use of terms makes it dif­ ficult to relate to international (water) law. Furthermore, the bilateral agreements do not sufficiently shape and imple­ ment the core principles and rules of international water law, if they are referred to at all. A particular obstacle seems to lie in the fact that there is no coop­ erative framework based on an effective regime of procedural rules or joint institutional mechanisms.195 Where the procedural rules are addressed, they are established only rudimentarily. Others are missing entirely, such as the obligation to conduct an EIA. Apart from the agreements, it has been estab­ lished that all three states, in principle, accept the core norms of ­international

194 Art. 1 MoU on Water (2009), supra note 115. 195 See also N. Bremer in this book.

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water law. In relations between Iraq and Syria, the UN Watercourse Con­ vention can additionally act to fill gaps. Yet again (and not surprisingly), the riparians have a different understanding of the content and extent of respec­ tive obligations, twisting them as much as possible to their liking.196 For stability and sustainability of relations, it is, however, crucial that the riparians agree on the scope and content of these norms. Finally, with regard to environmental protection, the increasing integration of environmental concerns in their agreements on water issues should be high­ lighted. In particular, the 2009 MoU on the remediation of water quality between Syria and Turkey comprises some progressive approaches to international envi­ ronmental law. However, despite these positive developments, utilization and allocation of water resources is still at the forefront of the interests. In addition, even if environmental concerns are gradually being considered, issues are still addressed piecemeal. No comprehensive approach to environmental protection has yet been adopted by the riparian states. The focus also clearly still lies on regulating areas of cooperation or procedure rather than elaborating substantive obligations related to environmental protection. In light of the environmental degradation of both rivers, including the devastating situation of the marshlands in Iraq, the significance of incorporating the aspect of environmental protection in a comprehensive manner in any possible future (trilateral) agreement, once again, cannot be stressed enough. Unfortunately, the dire situation in Syria has severed relations and put on hold any dialogue on water issues. It is definitely a setback for the achievements in water cooperation of the past years. The chances of reaching a trilateral, possibly multilateral agreement have been deferred for the unforeseeable future. How­ ever, even though the fate of Syria is still uncertain, the authors contend that once the conflict ends, water—as the vital source for life—will quickly be at the forefront of interests again. Hopefully, this will then open new opportunities for peaceful cooperation on water resources in the region.

196 In particular, controversy exists over the definition as well as quantification of equi­ table and reasonable utilization. The riparians disagree how to weight different criteria to determine water needs, a problem which of political rather than legal nature.

chapter six

Advantages of Marketable Water Rights in the Tigris and Euphrates Basin Evin Wick*

I. Introduction The riparian states of Turkey, Syria, Iran, and Iraq have a tumultuous relationship regarding water, producing a series of treaties against a background of mistrust and combative rhetoric escalating at times to small-scale military conflict.1 Each state sees only the value in its own domestic water uses. While historically areas in the lower river delta were the most developed, in recent decades Turkey, Syria, and Iran have actively built dams and expanded irrigation on Tigris and Euphrates tributaries with further expansions planned. The riparian states need to address their conflicting development goals as well as their inefficient use of, and growing demands for, a limited water supply. Existing treaties and agreements have proved unable to deal with growing and conflicting demands; the existing tripartite Joint Technical Committee, though revitalized between 2007 and 2009, has not met regularly since the 1990s and does not include Iran.2 To resolve the current untenable situation the basin states

* The author is extraordinarily grateful for the advice and guidance of Edith Brown Weiss, J. D., Ph.D., Francis Cabell Brown Professor of International Law at Georgetown University Law Center. 1  Iran has only recently begun serious efforts to expand its use of Tigris tributaries and thus has not been included in most comprehensive work on water issues in the region. However, Iran has a series of projects effecting water flows to the Tigris and Shatt al-Arab. The water flows from Iran are significant although there is less scholarship to build on. 2 E. Yavuz, “Turkey, Iraq, Syria to Initiate Water Talks”, Today’s Zaman, 12 March 2008, avail­ able at: . See C. Leb, “The Tigris-Euphrates Joint Technical Committee—deadlocked”, IUCN Water Programme SHARE Toolkit, 2008, available at: .

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need a high-quality, creative, and adaptive agreement leveraging their shared values and resources.3 Inevitably the riparian states must revisit past water agreements and try again to create an effective framework for the management of the Tigris and Euphrates basin.4 These efforts must not be wasted on proposals requiring politicians to abandon their countries’ historic water claims, scientists to analyze incredible amounts of data to determine where and when water is best used, or bureaucrats to allocate water in perfect accordance with public interest. A market-based approach that allows for the transfer of water use rights should be part of this solution. Emphasizing price, the right to use, and flexibility over ownership and permanence, transferable water use rights can help break the deadlock of conflicting views on legal rights to the rivers. Water markets will provide valuable price information that can inform domestic and regional water policy including subsidies and infrastructure projects. By adopting a marketable rights system in the Tigris-Euphrates basin the riparian states will be better able to address their conflicting goals, inefficient use, growing demand, and scarce supply with an efficient, flexible, and politically feasible framework. II. Background The Tigris and Euphrates rivers have been a center for civilization for ­millennia.5 Historically entirely within the Ottoman Empire, tributaries in present day Turkey, Syria, Northern Iraq, and Iran feed the rivers.6 Both rivers originate in Turkey’s eastern mountains and flow through Turkey, Iraq and Syria before merging to form the Shatt al-Arab in Iraq and flowing to the Persian Gulf.7 80 % of the Euphrates flow originates in Turkey, 11 % in Syria, and essentially none in Iraq.

3 F. Gordon, Fresh Water Resources and Interstate Cooperation—Strategies to Mitigate an Environmental Risk, 2008, 15. 4 There has been some controversy over whether to view the Tigris and Euphrates rivers as a single basin or as two separate basins. Turkey is adamant that the basins be con­ sidered together, suggesting that Iraq can make up shortfalls in Euphrates’ water with water from the Tigris. Iraq and Syria have generally preferred to view the two rivers as distinct. Though market principles advocated could be applied to a single river agree­ ment because the rivers merge into one and are connected by a canal, for simplicity this paper refers to a single basin. 5 G. McGuire et al., “Tigris-Euphrates River System”, Encyclopedia Britannica Online Aca­ demic Edition, 2011, available at: . 6 H. Elver, Peaceful Uses of International Rivers: The Euphrates and Tigris Rivers Dispute, 2002, 343 et seq. 7 S. C. McCaffrey, “Case Study: Tigris-Euphrates Basin”, in: P. Gleick (ed.), Water in Crisis, 1993, 92 (93).



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51 % of the Tigris flow originates Turkey, 39 % in Iraq, 10 % in Iran, and essentially none in Syria.8 The Karun from Iran enters the Shatt al-Arab in southern Iraq. The riparians have signed multiple, bilateral water agreements including the 1989 ‘Agreement on Sharing of the Euphrates’ between Iraq and Syria which allocated 58 % of the Euphrates’ water from Turkey to Iraq and 42 % to ­Syria.9 Despite those agreements tensions still flare, as in 1990 when in filling the Atatürk Dam Turkey broke its agreement to maintain minimum Euphrates flows of 500 m3/s.10 1. Planned Projects Currently, in good years flows in the Tigris and Euphrates meet current uses, but in drought years water supply in Iraq reaches dangerous lows.11 The four riparians’ ambitious development goals and inefficient water use promise to bring about further water conflict. The largest development project is Turkey’s ‘Güneydoğu Anadolu’ Project (GAP) to develop Southeastern Turkey, providing hydropower for industry and irrigating 1.7 million ha of agricultural land.12 Iraq, rebuilding after two decades of war and sanctions, is working to restore agriculture productivity, expand irrigation, and reclaim drained marshes.13 Syria has struggled to fulfill its plans to  8 FAO, “General Summary Middle East Region, Tigris Euphrates Basin”, Aquastat Survey (2009), available at: ; see also K. Wegerich / J. Warner, The Politics of Water, 2010, 126 et seq.   9 Joint Minutes Concerning the Provisional Division of the Waters of the Euphrates River (Iraq-Syria) (signed 17 April 1989), English version available at: . 10 “Releases were increased in the 52 days prior to the filling of the dam”, Turkish Min­ istry of Foreign Affairs, “Water Issues between Turkey, Syria and Iraq”, a Study by the Department of Regional and Transboundary Waters, available at: , 6–7, Table 5. 11  C. Robertson, “Iraq Suffers as the Euphrates River Dwindles”, New York Times, 13 July 2009, available at: . 12 W. Scheumann, “Conflicts on the Euphrates: An Analysis of Water and Non-Water Issues”, in: W. Scheumann / M. Schiffler (eds), Water in the Middle East Potential for Conflicts and Prospects for Cooperation, 1998, 115 (133). 13 See generally US Department of Agriculture Foreign Agricultural Service, Fact Sheet: U.S.–Iraq Agricultural Extension Revitalization Project, 2009, available at: ; Republic of Iraq, Ministry of Water Resources, “Ministry of Water Resources carries out large cam­ paign to dredge and remove sediments from river courses, branch streams and sur­ face water in the whole governorates”, Ministry News, 21 October 2010, available at: ; A. Alwash et al., “Iraq’s Marshlands—Demise and the Impending Rebirth of an Ecosystem”, The Iraq Founda­ tion, 2004, available at: .

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irrigate 640,000 ha of land through the Upper Euphrates Project but more modest projects will still increase water demand.14 Further, Syria must find water to supplant its unsustainable ground water withdrawals.15 Iran plans to construct several large dams in its western mountains—including one that will be among the world’s largest—along with many smaller dams.16 Throughout the region tremendously inefficient use of water that is free or nearly so amplifies demand for both urban and agricultural users.17 Agricultural loss rates approach 40 % due to seepage, waste, bad infrastructure, and high evaporation.18 In Iraq the loss rates may be even higher.19 Agricultural use consumes most of the region’s water, accounting for over half of water use in Turkey, 88 % in Syria, 92 % in Iran, and 90 % of Iraq’s Euphrates water use.20 While river flows vary significantly seasonally and annually, by one estimate completing all planned Euphrates river projects would, with evaporation, exceed the annual discharge of 31 bcm by over 50 %.21 Though Iraq lacks good information on its current use and Syria’s ability to complete its planned projects is suspect, as each riparian attempts to expand its already inefficient use without a management agreement conflict is inevitable. 2. Riparian State Positions As discussed below in greater depth, the UN Convention on the Non-Navigational Uses of International Watercourses (the UN Watercourse Convention)22 mandates that member countries utilize water resources in an ‘equitable and reasonable’ manner. All four states have incompatible legal positions based on differing 14  Scheumann, supra note 12, at 118, 120. 15  E  lver, supra note 6, at 357. 16  “VP: Iran’s Dam Construction Industry Ranks 3rd in World”, Fars News Agency, 9 Octo­ ber 2011, available at: ; Iran Water and Power Resources Development Co., “Bakhtiari Project, Project Intro­ duction”, available at: . 17  J. H. Adler, “Warming up to Water Markets”, Regulation 31 (2008), 14 (16). 18  Scheumann, supra note 12, at 119. 19  US AID, Irrigation Water Management Assessment and Priorities for Iraq, 2004, available at: . 20 Scheumann, supra note 12, at 114 (reporting 83 % in Syria, 92 % in Iraq, and 50+ % in Turkey); I. Mardin, The Water Sector in the Syrian Arab Republic, available at: ; FAO, “Irrigation in the Middle East Region in Figures—Aquastat Survey”, Aquastat Water Reports 34 (2009), available at: , 190 (figure 3). 21  S cheumann, supra note 12, at 119. 22 Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, not yet entered into force), ILM 36 (1997), 700 (UN Watercourse Convention).



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legal doctrines and interpretations of what ‘equitable and reasonable utilization’ of water requires.23 Turkey has historically claimed the absolute right to develop the Euphrates on Turkish territory.24 Currently, Turkey advocates a basin-wide management proposal based on studies of use and efficiency, arguably consistent with international standards.25 With its political stability, cooler climate, and superior infrastructure Turkey believes that technical data will bear out that large quantities of water can be put to optimum use in Turkey. Syria interprets ‘equitable and reasonable’ to mean that each riparian would state their claimed water rights based on intended development uses and these would be met as best as possible.26 That is the Euphrates, currently ­over-allocated, would be allocated based on a proportional reduction of current claims. Iraq has historically claimed an absolute water right for its preexisting uses giving it a superior claim to Turkey and Syria.27 Accordingly, Iraq has advocated apportioning the waters of the Euphrates based first on current uses, second on projects under construction, and third by future development plans, thus placing Iraq’s established irrigation networks ahead of Turkey’s development plans.28 Iran’s position is less certain but its actions in stopping water flow to Iraq indicate a legal position supporting vast autonomy for upstream riparians.29 In contrast, Iran’s votes in support of the UN Watercourse Convention indicate willingness to participate in international legal norms on the subject.30 The current positions of the riparians, focused on mutually exclusive ownership of the rivers and based on the discredited legal doctrines of absolute territorial integrity (Iraq) and absolute territorial sovereignty (Turkey), must be set aside in favor of more innovative solutions.31 Turkey has proposed a solution based on the

23 Scheumann, supra note 12, at 127. 24 Ibid. 25 “Irrigation water-demand estimation and water resources systems simulations under various water resources development and hydro-climatic condition modeling needs to be undertaken”, Wegerich / Warner, supra note 8, at 126. 26 Ibid. 27 Elver, supra note 6, at 425. 28 Scheumann, supra note 12, at 127. 29 Describing a recent stoppage of water flows to Iraq, see A. Hussein, “Iran’s Blockage of Alwand River Leaves Diyala in Water Crisis”, Rudaw, 14 August 2012, available at: . 30 G. W. Sherk et al., “Water Wars in the Near Future? Reconciling Competing Claims for the World’s Diminishing Freshwater Resources—The Challenge of the Next Mil­ lennium”, The Centre for Energy, Petroleum and Mineral Law and Policy University of Dundee Internet Journal 3 (1998), available at: , tables 1–3. 31  “History has been no kinder to the doctrine of absolute territorial integrity than to its theoretical opposite, absolute territorial sovereignty. Both doctrines are in essence

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collection and analysis of impossible amounts of data. A better agreement will move the parties away from focusing on how much water they own and toward an examination of how much water they wish to use, at what cost, and what they might gain through exchange. III. The Benefits of Water Markets A successful framework agreement for water management in the Tigris-Euphrates basin should provide equitable distribution of benefits, adaptable management, flexible allocations, and dispute resolution.32 Incorporating transferable water use rights will improve any agreement and help address many water management challenges.33 Transferable water rights will: 1. Provide a net benefit outcome for all trading participants;34 2. Manage supply and demand, directing water to its highest value use;35 3. Enable superior resource allocation by generating pricing information.36 Though a cross-border system of transferable water rights between and within Turkey, Syria, Iraq, and Iran would be unprecedented, Spain, Australia, South Africa, Chile, and the western states of the US all incorporate significant market elements into water policy. Chile and the Southwestern US, like the basin states, have arid climates, large agricultural sectors, growing urban centers, and water laws that have evolved over time. Because of these shared characteristics, the experience with water markets in Chile and the Southwestern US illustrates the potential for transferable water rights in the Tigris-Euphrates basin.37

factually myopic and legally ‘anarchic’.” S. C. McCaffrey, The Law of International Water­ courses, 2007, 133. 32 Gordon, supra note 3, at 18. 33 F. Fisher / A. Huber-Lee (eds), Liquid Assets: An Economic Approach for Water Manage­ ment and Conflict Resolution in the Middle East and Beyond, 2005, 66. 34 Gordon, supra note 3, at 33. 35 Adler, supra note 17, at 14. 36 Ibid. 37 H. Vaux / G. E. Schweitzer, “Preface”, in: H. Vaux et al., Water Conservation, Reuse, and Recycling: Proceedings of an Iranian-American Workshop, 2005, vii, viii, identify­ ing, economic and population growth, urbanization, ground water overdraft, need for improved management regimes, and disparity between water distribution and popula­ tion distribution among the “similarities between the water situation in Iran and that in the United States”; G. H. Kanai, “Potential Gains From Water Markets Construction: Saveh Region Case Study”, Environmental Sciences 6 (2009), (65) 66, looks to studies in Chile and California as evidence of the potential for Iran, available at: .



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1. Voluntary Water Transfers between Consenting Parties Create Value for all Parties Water rights transfers offer financial benefits where one user values a given amount of water less than another user and they have an effective means of transfer.38 Throughout the world, agricultural users often pay only production costs while urban users must pay a scarcity premium for water.39 Water transfers can happen locally between users in a water district or from one district to a nearby city.40 Alternately, states can establish water banks by buying at one price and selling at another.41 Either way, if farmers can reduce their use and sell water at a premium to urban users who can reduce water costs, the transaction benefits both parties.42 In the Tigris-Euphrates basin, those who are unable to use their water allocation effectively, like farmers whose land has become too saline, would be able to sell their rights to other basin users who desire additional water. Individual users will weigh economic factors, like ability to find nonfarm work or the cost of moving, and socio-cultural ones, like leaving a long-held occupation or land passed down through generations, in their decision to sell water rights and will only transfer their rights when the aggregate factors considered favor doing so. Where inefficient agriculture consumes a large percentage of available water the transfer of a small percentage to industrial and residential uses can have significant benefits at minimal cost. In the US State of Missouri a 30 % increase in industrial and residential water use taken entirely from agriculture is estimated to result in only a 1.3 % loss in agricultural productivity.43 In the American Southwest most transfers are small and local but a few large-scale transfers

38  J. Brewer et al., “Water Markets in the West, Prices Trading and Contractual Forms”, National Bureau of Economic Research, Working Paper 13002 (2007), 2. 39  The price of irrigation water in particular has been heavily subsidized throughout the world, leading to overuse and the allocation of water to low-value crops. Pricing regimes for industrial water are most often of a flat- or bulk-rate type, or even include quantity discounts—only rarely are prices structured to provide incentives to conserve. Waterrelevant subsidies to industries are still frequent, usually in the area of water discharge and sewer systems. Water services for domestic purposes are most often underpriced: although operating costs are generally covered by charges, the full costs involved in water supply and wastewater discharge are not. For a full discussion on water pric­ ing, see OECD, “Water Subsidies and the Environment, (OECD/GD(97)220)” in: Water Consumption and Sustainable Water Resources Management, OECD Proceedings (1998), 23 (footnote 10). 40 Brewer et al., supra note 38, at 4. 41  T. Anderson / P. Snyder, Water Markets, 1997, 102, (citing MacDannel (1989)). 42 Brewer et al., supra note 38, at 2. 43 R. Walh, Markets for Federal Water: Subsidies, Property Rights, and the Bureau of Recla­ mation, 1989, 188–190.

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from irrigation districts to municipalities yield outsized benefits.44 Price spreads between agricultural and urban users can be massive, with residential users paying hundreds (sometimes thousands) of dollars per hm while agricultural water can be had for $ 120/hm.45 These disparities create opportunity even accounting for transaction costs, legal hurdles, and the differences in water requirements.46 To this end, the San Diego California County Water Authority has contracted to buy up to 25,000 hm annually from the Imperial Irrigation District to meet urban water needs at a current price of $ 3980/hm for up to 75 years.47 Internationally, a common Tigris Euphrates water market could effectively facilitate water transfers. Despite limited buyers and sellers, transfers made at the state level will create value.48 In the American Southwest benefits accrue despite Arizona being the only seller and Nevada being the primary buyer.49 Even in a bilateral situation one party will have a selling price and another an asking price and only where these meet can a deal occur, with both states believing that the sale places them in a superior position to their previous one.50 The riparians can contract for physical water storage, spot sales of a specific amount of water, and short or long-term leases or sales of water rights.51 If, after concluding an initial allocation agreement, the basin states engaged in only modest or infrequent trades this could indicate that the allocation of water in the agreement was appropriate or that states can meet their water needs cost effectively through conservation. Marketable use rights allow parties on both sides to improve their position through trade, independent of flawed initial allotments or of policy choices.52 2. Transferable Water Rights Allocate Scarce Water Supply to where Demand is Greatest In the Tigris-Euphrates basin, as throughout the world, “water is over consumed and wasted in large part because consumers do not receive appropriate signals

44 G. B. Fisvold / K. Emerick, “Applying Bargaining Theory to Western Water Transfers”, in: B. G. Colby / G. B. Frisvold, Adaptation and Resilience, The Economy of Climate, water and Energy challenges in the American Southwest, 2011, 44 et seq. 45 Brewer et al., supra note 38, at 2. 46 Frisvold / Emerick, supra note 44, at 44. 47 200,000 acre-ft. at $ 491/acre-ft., San Diego County Water Authority, “Colorado River Water Transfer Agreements”, 2012, available at: . 48 Frisvold / Emerick, supra note 44, at 61. 49 A. Baillat, International Trade in Water Rights, 2010, 160–161. 50 Frisvold / Emerick, supra note 44, at 45. 51  B  rewer et al., supra note 38, at 3. 52 Fisher / Huber-Lee, supra note 33, at 69, 213.



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about the value of the resources.”53 Voluntary exchanges “facilitate the allocation of resources to their highest valued use through voluntary exchange and generation of information about relative scarcity and demand.”54 This allows water to reach those that value it most greatly in times of drought and provides a monetary incentive for those who can use water more efficiently to do so. Supply management is particularly critical in arid and water scarce areas like the Tigris-Euphrates basin. Unable to stop climate change or increase rivers flows, transferable rights can help reduce the impact of water scarcity by enabling users to cope with droughts and disruptions by buying or leasing rights from other users.55 While drought makes water scarcer for all, some users will be able to access other water sources or reduce their water use, and can thus sell water at a profit to those unable to reduce their use.56 The ability to tap a market for water allows for more flexibility and less invasive water management. Like Mesopotamia, the American Southwest is water scarce; “most States anticipate water shortages” and future climate change may exacerbate current scarcity.57 In the Colorado river basin, states gain flexibility in water management through water banking. 58 Nevada both buys water from Arizona and pays Arizona to store water in lake Mead and in underground storage facilities for its use.59 If Turkey, Syria, Iraq, and Iran were able to purchase water rights or store water elsewhere they would require fewer additional dams and other supply infrastructure. Further, Iraq and Syria could pay to store water in Turkey where evaporation rates are lower. Water use is directly affected by the price of water: where water is priced, use can be drastically less than in areas where it is unmetered.60 Conservation measures have costs and transferable use rights make water that would be wasted valuable, encouraging users to adopt efficiency and conservation measures they otherwise would not.61 In parts of the US, agricultural water users are the beneficiaries of long-term subsidies with many users paying only pumping or ­delivery

53 Water Consumption and Sustainable Water Resources Management, OECD Proceed­ ings, 1998, 23. 54 Adler, supra note 17, at 15. 55 Ibid., 17. 56 Frisvold / Emerick, supra note 44, at 60. 57 Adler, supra note 17, at 14. Describing the economic impact of the summer 2012 drought in the US, see N. Shah / C. Dougherty, “Drought’s Grip Is Wide, Deep”, Wall Street Jour­ nal, 4 September 2012, available at: . 58 Baillat, supra note 49, at 155. 59 Ibid., 162. 60 In Clovis where water use is metered 40 % less than nearby Fresno which is not metered. E. Hanak, Water for Growth: California’s New Frontier, 2005, 13. 61  Adler, supra note 17, at 17.

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costs.62 These subsidies encourage profligate use and wasteful irrigation.63 If agricultural users can sell water they will gain an incentive to use water more conservatively.64 In other parts of the US, water prices are increasing and some farmers are responding by investing in water conservation technologies like drip ­irrigation.65 Others are fallowing marginal land and selling the water that is saved.66 Contrast this with Chile where the water regulator regularly issues new rights and farmers have not engaged in serious conservation nor the fallowing of fields.67 In the Tigris-Euphrates basin the opportunity to sell excess water, or the knowledge that additional water could be costly, should encourage the adoption of more efficient farming techniques like drip irrigation.68 As the riparians assess projects they may decide that water recycling and reuse make economic sense because those water rights can be sold to a neighbor. This holds particular promise for the release of water currently being lost to evaporation behind dams. 3. Water Markets Generate Price Data Reflecting How Different Users Value Water Markets take advantage of localized and dispersed information about resource supplies and demands including subjective valuation and individualized use for different resources in different places.69

With pricing data water regulators can observe how users value water and make choices about agricultural policy accordingly.70 Prices communicate “information about collective judgments about the relative scarcity of resources across time and space. As market conditions fluctuate, market prices change accordingly.”71 Currently, water prices in the Tigris-Euphrates region are difficult to discern and it is unclear what, if anything, these prices reflect, with many users paying nothing for water. In Turkey users seem to be paying about two Turkish Lira (TL) per m³, but only half of users are paying this.72 62 Brewer et al., supra note 38, at 2. 63 Adler, supra note 17, at 16. 64 Ibid. 65 D. Jehl, “Saving Water, U.S. Farmers Are Worried They’ll Parch”, New York Times, 28 August 2002, available at: . 66 Baillat, supra note 49, at 173. 67 C. Bauer, Against the Current, Privatization, Water Markets, and the State in Chile, 1998, 35, 53. 68 S. Soza, “Efficient irrigation method holds promise for Iraq”, US Army, 8 March 2010, available at: . 69 Adler, supra note 17, at 15. 70 Fisher / Huber-Lee, supra note 33, at 46. 71  Adler, supra note 17, at 16. 72 “There is almost no volumetric pricing system in irrigation, whereas volumetric charges are common in domestic and industrial use.” E. H. Cakmak, “Agricultural Water



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In Syria the most useful indicator of water price may be the fine of five Syrian Pounds per m³ levied for exceeding allowed use, the equivalent of 0.18 TL.73 In Iraq current prices may be as low as US $ 0.0034, or 0.006 TL per m³, covering less then 5 % of costs.74 In Iran urban water tariffs are complex but well below regional averages while many agriculture users pay nothing for water.75 Markets “incorporate far more information than centralized administrative entities and at far lower cost”.76 To accurately process a similar level of information would be an extraordinarily difficult and time-consuming effort in central planning requiring constant long-term studies.77 As basin states contemplate additional infrastructure projects information about water value is critical. Domestically, water price information can inform subsidies, agricultural policy, and where infrastructure improvement is needed.78 Internationally, water pricing can inform negotiators about the value of what they are negotiating over.79 The experiences in the western US and to a lesser extent Chile demonstrates that marketable water use rights can help create value, manage supply, foster efficiency, and provide information to regulators, even in very imperfect circumstances. However, the application of water markets to the Tigris-Euphrates basin poses additional specific challenges. IV. Challenges in the Tigris-Euphrates Basin The realities of the Tigris-Euphrates basin combine political uncertainty with deep-seeded conflict with irreconcilable perspectives on water ownership, undefined property rights in water, limited water infrastructure, the need to comply with international water law, continuing environmental degradation, and the

Pricing: Turkey”, OECD Background Report (2010), available at: . 73 In Syria, “[a]lmost nowhere do farmers pay anything near the supply cost of water, let alone its economic cost”, M. Salman / W. Mualla, “Water Demand Management in Syria: Centralized and Decentralized Views”, Water Policy 10 (2008), 549, available at: ; calculated exchange rates available at: . 74 UNICEF et al., “Water in Iraq: Facts and Figures”, World Water Day 2011, available at: . 75 A. Keshavarz et al., “Water Allocation and Pricing in Agriculture of Iran”, in: Water Conser­ vation, Reuse, and Recycling: Proceedings of an Iranian-American Workshop, 2005, 161; The World Bank Iran, “Ahwaz and Shiraz Water Supply and Sanitation Project”, 2004, avail­ able at: . 76 Ibid. 77 Ibid. 78 Fisher / Huber-Lee, supra note 33, at 35, 38, 46. 79 Ibid., 65.

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presence of international legal regimes and a strong Islamic tradition. These challenges are not insurmountable, as transferable water use rights can: 1.  Break deadlock over conflicting legal positions, 2. Support the allocation of all the basin waters, 3. Be implemented with less data than other serious proposals, 4. Be adapted to some limitations and restrictions of local law, 5. Be exchanged locally with little additional infrastructure, 6. Help a management agreement withstand political change, 7. Provide an avenue for addressing environmental concerns, 8. Comply with international water law and treaties, and 9. Be consistent with Islamic Law. 1. The Riparians must Move beyond Entrenched Positions on Water Ownership Rights Transferable water use rights separate the right to use water from the right to own water, with the latter becoming only the right to sell water and receive compensation in exchange.80 If a state sells this water domestically it may receive compensation from its users, or if it sells the water to another state it will receive compensation from that state.81 The value of compensation may not be large: though states will pay dearly for a basic quantity of water the marginal value of additional water declines sharply.82 Turkey, Syria, Iraq, and Iran each desire water for their own uses, be these industrial, urban, or agricultural. This water, even if apparently in short supply, is available to any of these countries for the right price.83 Turkey has ample supplies of fresh water and has examined exporting water to Jordan, Israel, and Saudi Arabia.84 Syria, Iraq, and Iran have ocean access and can use desalination to meet water demands. Producing such water is costly and transporting into the areas irrigated by the Tigris and Euphrates rivers more so, but desalination provides an upper bound to the price of disputed water.85 Because the Tigris and Euphrates rivers offer cheap, accessible, and convenient fresh water demand exceeds supply.86

80 Ibid., 63. 81  Ibid., 5. 82 Ibid. 83 Ibid., 3–4. 84 A. Kibaroglu et al., Cooperation on Turkey’s Transboundary Waters, Status Report com­ missioned by the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety, 2005, 79–80, available at: . 85 Fisher / Huber-Lee, supra note 33, at 63. 86 Ibid., 5.



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States could meet their needs for additional water through conservation or importation of the end product (the food or hydro-power they would use the water to produce).87 For example, a state could import watermelon from a water rich state instead of growing the watermelon locally. The payment for water does not need to be in cash; cash is an accounting mechanism and consideration could be made in oil, gold, or widgets.88 Many observers have noted the parallels between water and oil in the region, most infamously when then Turkish President, Süleyman Demirel, said “neither Syria nor Iraq can lay claim to Turkey’s rivers any more than Ankara could claim their oil. (. . .) The water resources are Turkey’s, the oil resources are theirs.”89 This combative statement also suggests a solution in the exchange of water for oil. As any water management agreement will grant a significant portion of Tigris-Euphrates water to Turkey, if Iraq or Syria desire water use exceeding their initial allocation and Turkey desires oil, they could exchange oil for additional water rights. Alternately Iraq or Syria could purchase Turkish or Iranian hydropower, receive the water released during its generation, and reduce the need for hydropower.90 Emphasizing economic value instead of historic claims will make a solution more politically feasible because states can realize their development goals through exchange and the starting allocation becomes less consequential.91 2. Water Rights can Work in Conjunction with an Interim Allocation Agreement To implement a basin management agreement with transferable water use rights the basin states first need to determine some relatively stable allocation between them. This initial allocation could incorporate existing agreements along with other criteria. An initial allocation agreement could be inexact; states would not need to agree on how to allocate all of the water rights in the basin.92 If the states allocated a large portion of the water rights they could put the remaining water rights into a trust able to sell water rights to the highest bidder.93 The negotiations for the remaining water allocation would then focus on how to allocate the receipts of the trust.94 The existence of prices for water could help facilitate an

87 Ibid., 5, 12. 88 Ibid., 65. 89 The opening of the Ataturk Dam on 25 July 1992 was widely reported, see F. Murch, “Thirsting for War”, BBC News, 5 October 2000, available at: . 90 C. Reed, “Paradise Lost”, Havard Magazine, January/February 2005, quoting A. Alwash. 91  Baillat, supra note 49, at 138. See R. H. Coase, “The Problem of Social Cost”, Journal of Law and Economics 3 (1960), 1. 92 Fisher / Huber-Lee, supra note 33, at 66. 93 Ibid. 94 Ibid.

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agreement by demonstrating the cash value of the water that is at stake and by showing the riparians that they can procure the water they need. 3. Any Basin Management Agreement will Require Reliable Data on Current Water Use The riparians, and Iraq in particular, may lack strong data on current total use and on water consumption by domestic users.95 This is extremely problematic; to trade, buyers and sellers require sufficient data to know how much water is being transferred. Even approximating water use, using variables like area under cultivation and local average use, requires information that may not be currently available. Additionally, determining what consumptive rights users should be granted is technically challenging and will require additional data and information exchanges between the states.96 Troublingly, and examined in more detail below, a state lacking appropriate data could agree to a water transfer that would violate the UN Watercourse Convention.97 Use data is paramount to an agreement that includes a water marketing mechanism but would also be necessary to any agreement that does not. The use data needed to allow transfers is markedly less than that required under Turkey’s “[three] stage plan for optimal equitable and reasonable utilization” of the rivers, or other plans based on determining where water would be best used.98 Emphasizing data sharing and basin-wide development, Turkey’s plan calls for a detailed study of where water would be best used to determine appropriate allocations.99 Such a proposal requires not only data on current water use levels but “the collection and coordination of a myriad amount of information” on how water is currently used and potential future uses.100 Collecting and processing this vast data would need to be constant and consistent to respond to changes in water flows and other conditions. The lack of adequate data inhibits any initial allocation, but an agreement that incorporates water marketing will be more flexible in the face of this incomplete data than one that does not. For example, if water were initially intentionally under-allocated, due to uncertainty about flow volume, additional water could

 95  Iraq really doesn’t know how much water it has or how much it needs (. . .) Negotia­ tors from Baghdad arriving at summits have found it almost impossible to get what they want out of talks because they can’t accurately state what they actually need. C. Walther, former water projects coordinator in Iraq for the UNESCO in: “Water pacts re-examined amid Arab Spring”, United Press International, 14 June 2012.   96 Frisvold / Emerick, supra note 44, at 58.   97 Art. 7 UN Watercourse Convention, supra note 22.   98 Turkish Ministry of Foreign Affairs, supra note 10, at 12–13.   99 Ibid. 100 Adler, supra note 17, at 16.



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be auctioned as it is demonstrated to be available.101 Further, as the transfer of water rights is a positive sum game, small fees could be attached to transfers that could go toward repaying the cost of future data collection. A requirement that those selling water use rights collect data would create economic incentives for investment in data collection, as market participants will want as much information as possible on how much water and of what quality is being bought and sold. Any management agreement will require data; water markets will harness value from that data. 4. Current Legal Regimes can be Modified to Recognize Water Rights To realize the benefits of a market a property right in water must be clearly defined, enforceable, and transferable. Though these requirements are absolute, there is flexibility in implementation. Water rights can be a specific quantity or a share of a river, they can be subject to requirements, and transferability can be limited.102 To allow trading in water use rights the riparians will need to modify their water laws. Iraq’s Constitution provides unclear guidance on water rights with water authority existing at both the federal and regional levels.103 Article 110 grants the federal government “exclusive authorities” for “planning policies relating to water sources from outside Iraq and guaranteeing the rate of water flow to Iraq and its just distribution inside Iraq in accordance with international laws and conventions.”104 In guaranteeing the water flow to Iraq, the federal government could buy water use rights from neighbors. Responsible for distributing water justly, the federal government could distribute water rights using criteria to ensure fairness. Once a just distribution is made the trading of rights would optimize water use. Parties who felt the federal grants did not meet their demand could buy more water while those whose ‘just’ share exceeded their needs could sell their water. Confusingly article 114 shares between the federal and regional authorities the power “to formulate and regulate the internal water resources policy in a way that guarantees their just distribution.”105 Kurdistan, Iraq’s only region, is the source of several important Tigris tributaries and as such controls much of Iraq’s water.106 Kurdish regional authorities would need to approve any

101 Bauer, supra note 67, at 35. 102 Adler, supra note 17, at 16. 103 S. L. Murthy, “Iraq’s Constitutional Mandate to Justly Distribute Water: The Implica­ tions of Federalism, Islam, International Law and Human Rights”, Geo. Wash. Int’l L. Rev. 42 (2011), 749 (751). 104 Art. 110 (8) Constitution of Iraq (2005), available in English at: . 105 Ibid., art. 114 (7). 106 Murthy, supra note 103, at 751.

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allocation of water rights within Kurdistan.107 More importantly, the distribution of water rights between Kurdistan and the rest of Iraq remains unsettled. Though markets could help inform this discussion, the issue threatens to undermine any potential agreement between the basin states.108 Similarly, Syria’s 2005 water law lacks clarity. Article 2 represents water as being a public good, but the subsequent ten articles detail the practice for recognizing previously acquired water rights.109 Article 32 provides that agricultural licenses “shall be issued in the name of the owner or lessee of the property and shall remain valid for the interest of the property, regardless of any transfer of ownership or investment right.”110 Per article 28 the Ministry of Irrigation will determine “the water quantity for which a license can be issued” subject to availability.111 Further articles set forth penalties and fees for excessive and unlicensed use.112 Thus while Syrian water law does not allow the transfer of water rights, water use rights are established and recorded. Turkish water law can be found in almost one hundred different acts and contradictions exist between them.113 The Constitution of 1982 establishes water as “a public good under the state’s trusteeship” and article 715 of the 2001 Civil Code provides that water “shall be under the command and possession of the Government.”114 Turkey maintains the state ownership of water, with the exception of springs on private land.115 The most important water regulator is the State Hydraulic Works (DSI), established “to develop surface and groundwater resources, to make optimal use of them and to develop them in such a way as to achieve optimum benefit.”116 DSI can transfer the operation of an irrigation net-

107  Ibid. 108 Ibid. 109 Art. 2 Water Legislation, Law 31 (2005) (Syria), available at: . English version available at: . 110  I bid., art. 32. 111  Ibid., art. 28. 112  I bid., see e.g. art. 35: [a]ny person who pumps a greater quantity of water established for pumping ground­ water from wells as specified in the license issued shall pay a fine equaling five Syrian pounds against each m³ of extra water pumped than the allowed quantity. This fine shall be doubled if the violation is repeated. If the offence is committed for the third time, the license will be suspended for one year and the pumping device will be removed at the offender’s expense. 113  A. Kibaroglu, Legislative Framework for Water Management in Turkey, 2012, avail­ able at: . 114  Ibid. at 3 (Civil Code, art. 715 (2001) (Turkish)). 115  Ibid. at 3 (Civil Code, art. 756 (2001) (Turkish)). 116  Act No. 6200 on the Organization and Duties of the General Directorate of the State Hydraulic Directorate, 1953.



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work to municipalities, cooperatives, or an irrigation association (covering lands in multiple administrative districts).117 Thus Turkish law does not provide for the transfer of water use rights but does provide for the distribution of licenses for usufruct rights and acknowledges irrigation management organizations. These irrigation management organizations could form the basis for water transfers. Iran has both public and private irrigation networks though water is a public good.118 The drying of large lakes, the regular stoppage of flows to Iraq, and the availability of cheap water combined with low returns on water use in both public and private networks indicate flawed water management practices.119 Working to improve water management, Iran has a Comprehensive Water Plan that seeks to encourage conservation, privatization, and investment.120 Small-scale water markets enjoy official support.121 While only Iran currently has laws that contemplate water markets, new water laws can be adapted and the water laws in all of the riparians should be reviewed and improved in any event, providing opportunity to add statutes to facilitate water markets. One way to establish water rights is through deliberate legal transformation. Chile rewrote its water code in 1981, separating water rights from land and making them transferable to enable water markets. Chile’s Civil Code of 1855 still provides the definition of water as ‘bienes naciaonales de uso pubilco’ and the right to water remains usufruct, entitling the holder only to the use of the water and not the water itself.122 Chile allows rights to be bought, sold, leased, and

117  Kibaroglu, supra note 113, at 4. 118  FAO, “Aquastat Report Iran (Islamic Republic of )”, Aquastat Water Reports 34 (2009), available at: . 119  M. Xuequan, “Iran resumes water flow in joint river to Iraq after months of cut”, Eng­ lish news.com, 10 October 2011, available at: . See generally, R. C. Foltz, “Iran’s Water Crisis: Cultural, Political, And Ethical Dimensions”, Journal of Agricultural and Environmental Ethics 15 (2002), 357, available at . 120 Generally, M. Nikravesh et al., “Institutional Capacity Development of Water Resource Management in Iran”, in: M. K. Bokland et al. (eds), Capacity Development for Improved Water Management, 2009, 159 (168–175). 121  FAO  , supra note 118; F. Molle et al., “Robbing Yadullah’s Water to Irrigate Saeid’s Gar­ den: Hydrology and Water Rights in a Village of Central Iran”, International Water Management Institute Research Report 80, (2005); Ministry of Energy Iran, “Orga­ nizing and Developing Local Water Markets”, Vision and strategic plan for long-term planning document of the Ministry of Energy, Water Sector Strategies, 36, available at: (Persian). 122 Bauer, supra note 67, at 34.

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­ ortgaged and the General Water Directorate auctions new rights.123 In Chile, m despite a relatively thin market and rights that are not fully inscribed, trading remains functional with many observers seeing benefits.124 Turkey, Syria, Iraq, and Iran would need to modify their water laws but a gradual reform could work better than a complete Chilean-style overhaul. In the southwestern US law reform efforts to improve transferability, starting with private right of use, offer a model for more gradual reform.125 In the western US water rights are based on the Prior Appropriations Doctrine that creates a vested right based on prior use.126 Historically these rights were explicitly nontransferable and retaining them required placing the water in beneficial use.127 The 1902 Water Reclamation Act required water be put to beneficial use, that irrigation occur on appurtenant land, and that “an actual bona fide resident” use the water.128 The prior appropriations doctrine and elements of older laws not helpful for water marketing continue to influence the definition of water use rights, but states have been successful in developing water markets despite leaving many of these laws on their books. Today in Colorado water owners are allowed to transfer their water rights, but only to the extent of water in consumptive use rather than the amount appropriated to them.129 While a sensible restriction, determining consumptive use is difficult and time consuming, leading to high transaction costs and long waiting periods. New Mexico also requires transferred water be in consumptive use but defines consumptive use at predetermined levels, clarifying the property right that can be transferred. This leads to faster transaction times and lower costs without requiring rejection of a key element of the prior appropriations doctrine.130 Water transfers, via a water bank or within an irrigation district, can create value even in severely restricted market. California used a water bank during a 1991 drought to quickly rationalize pricing and generate revenue with the state 123 Ibid., 35, “where this new water originates is unclear and the issuance of new rights may have hindered the development of the market.” 124 M. Rios Brehem / J. Quiroz, “The Market for Water Rights in Chile”, World Bank Techni­ cal Paper No. 285 (1995). 125 R. Teerink / M. Nakashima, “Water Allocation, Rights, and Pricing”, World Bank Techni­ cal Paper No. 198 (1993), 17. 126 Ibid. 127 Ibid., 118, 122–123. See e.g. art. XIV (3) Constitution of the State California: “[w]ater resources of the State be put to beneficial use to the fullest extent to which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented.” 128 Walh, supra note 43, at 148–149; Water Reclamation Act (1902), Stat. 32 (1902), 388; 43 USC § 391, § 8 (repeal recognized 1971), § 5 (Repealed by the Reclamation Reform Act 1982). See generally, Walh, supra note 43, chapter 5: Policy Recommendations, chapter 6: Policy Changes to Facilitate Voluntary Water Transfers. 129 Anderson / Snyder, supra note 41, at 788. 130 Ibid., 101, (1990) 1188 (citing Colby).



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purchasing water at $ 125 per acre-ft. and selling at $ 175 per acre-ft.131 Even where the state, acting as a middleman, controls the market all participants will still realize benefits so long as trading remains voluntary.132 Another model is the implementation of geographically defined ‘water districts’ that hold water rights under state law.133 The district distributes water on a pro rata basis to shareholders (area irrigators). Within a district, shareholders trade by buying or selling shares, and many districts in the American Southwest have active markets.134 Because trading on the shares does not affect the ownership of the water (the water is owned by the district) it is usually not subject to state law, but does transfer the right to use water.135 Though existing domestic laws in the Tigris-Euphrates basin do not allow the transfer of water use rights, modifications could be implemented piecemeal, as they have been in the US, to allow transfers but still impose any number of restrictions. In the interim transfers can occur at the local level without fully transferable water rights or in a state controlled market. 5. The Rivers and Existing Canals are much of the Infrastructure Needed Allowing exchanges only within the Tigris or the Euphrates will help limit transaction and transport costs, making trading more effective.136 Physically transporting water from one river basin into another is very costly. In the US reports dating back nearly 40 years recommend stringent criteria for intrabasin transfers, including that a project be the least costly alternative, that the benefits exceed total cost, and that net gain be compared with alternative investments.137 High transaction costs have doomed plans for intrabasin transfer between water rich Canada and California’s coastal cities. Shipping water from Canada to California’s coastal cities is unappealing because the high cost of building the facilities requires long-term commitments while water needs and availability change. The contracts cannot be made sufficiently flexible and cost effective.138 In Chile water management is done largely through canal users associations which localizes and simplifies the process of transfers because the members are linked to the same water use, engage in similar uses, and can easily contact one

131 Ibid. 132 Ibid., 103. 133 Ibid. 134 Ibid. 135 Ibid. 136 Brewer, supra note 38, at 8–9. 137 National Water Commission, “Water Policies for the Future”, Final Report to the Presi­ dent and to the Congress of the United States by the National Water Commission (1973). 138 T. L. Anderson, Continental Water Marketing, 1994, 49, 50.

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another.139 No complex trading platform is needed for one user to sell and a buyer to buy. Third party negative effects are minimized when water transfers occur within a basin as some uses actually return water to the basin. This is particularly true with irrigation: on average 70 % of water is consumed but the other 30 % is recycled back into the river. If initially the water is transferred out of the basin, this 30 % does not return to provide flow or be reused.140 Allowing trading amongst users of the same canal or irrigation system can be achieved without building new infrastructure, auditing uses, or developing complex trading platforms. As Turkey, Iraq, and Syria all have access to both the Tigris and Euphrates they can buy and sell water to one another on either, while Iran would initially be limited to trading with Iraq. This would not negate the need for considerable investment in water measurement technology. 6. Political Uncertainty is an Issue Facing the Region and any Agreement must be Flexible In Turkey there is a political shift toward closer ties with Europe. In Iraq a democratic government follows Saddam Husain’s rule and US occupation. In Syria insurgents are challenging the Baath party’s forty-year rule. In Iran the revolutionary government is subject to international sanctions. Thus, a well-crafted water management agreement should be able to withstand political change, even of the highly disruptive sort, in order to prevent water conflict notwithstanding shifts in political orientation or economic development.141 In Chile, a rightwing military junta rewrote water law with the explicit purpose of fostering water markets.142 These laws have stayed in place and water markets have grown since the transition back to civilian rule in 1991.143 In 2005 Chile enacted modest reform of the water law, including a tax on unused water rights.144 While Chile has rejected and

139 Bauer, supra note 67, at 35. These organizations are responsible for the construction of the ¾ of Chile’s irrigation system built before 1920. 140 Frisvold / Emerick, supra note 44, at 47. 141  Gordon, supra note 3, at 14 (citing Wolf (2003)). 142 Bauer, supra note 67, at 34, 70. 143 A. Barrionuevo, “Chilean Town Withers Under Free Market For Water”, New York Times, 14 March 2009, available at: . 144 C. J. Bauer, “The Experience of Chilean Water Markets”, in: Expo Zaragoza Water Tri­ bune, Thematic Week on Economics and Financing: The Role of Market Instruments in Inte­ grated Water Management 2008, 7, available at: . Forthcoming as “The experience of water markets and the market model in Chile,” in Josefina Maestu (ed.), Water Trading and Global Water Scarcity: International Perspectives.



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prosecuted the military dictatorship that created the market, Chile has sought only refinement of the market itself.145 The institution of tradable water use rights will create value and provide flexibility, making a water management agreement more durable than an agreement without such features and will prove more reliable than agreements based on current political considerations.146 In order to have legitimacy, the negotiation of an international allocation agreement on which trading would be based cannot occur until the civil war in Syria ends.147 7. Environmental Degradation can be Addressed through Water Markets Iraq, in particular, faces two environmental problems that will demand large quantities of fresh water to address. The first is salinization from poor irrigation practices. This affects 70 % of Iraq’s agricultural land, rendering 20 % unusable.148 The second results from efforts in the 1990’s to stem political opposition in Iraq’s unique southern marshes. The marshes were drained in a systematic effort to crush opposition amongst the ‘Marsh Arabs’ living there.149 Since 2003 residents have returned, reclaiming and reflooding some marshes.150 With water markets Iraq could purchase the water for restoring the marshes and the salinized agricultural land from other riparians or reassess the feasibility of some projects. Perhaps some farmers on marginal land would rather receive payment for their water rights than try to restore the land. Further, if a private charitable organization or non-governmental organization desires water for non-consumptive use, like providing in-stream-flows for species habitat, it can purchase that water from consumptive users and leave it in the river to provide species habitat.151 Internally the riparians can allocate water to environmental projects while in a basin management agreement the four states should leave some allocation for in-stream-flows.

145 “Pinochet Charged with Kidnapping”, BBC News, 1 December 2000, available at: . 146 Gordon, supra note 3, at 98. 147 “Turks Grant Recognition to Coalition of Syrians”, New York Times, 15 November 2012, available at: . Turkey, along with France, the US and others, recognize the Syrian opposition as the legitimate represen­ tative of the Syrian people. 148 US AID, Irrigation Water Management Assessment and Priorities For Iraq, 2004, at 1, available at: . 149 “The marshes of southern Iraq, One-third of paradise”, The Economist, 24 February 2005, available at: . 150 Ibid. 151  L. M. Paretchan, “Choreographing NGO Strategies to Protect Instream Flows”, Nat. Resources J. 42 (2002), 33.

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8. Consensual Water Rights Transfers can be Consistent with International Water Law The UN Watercourse Convention, though not yet in force, is the leading statement of international water law. The ‘equitable and reasonable’ requirement of article 5 is widely regarded as being customary international law.152 Though Turkey claims not to be bound by the UN Watercourse Convention, Syria signed in 1998 and Iraq became a party in 2001.153 Iran, while not a signatory, consistently voted in support of the UN Watercourse Convention during drafting.154 All riparians pay homage to the UN Watercourse Convention’s article 5 requirement to “in their respective territories utilize an international watercourse in an equitable and reasonable manner.”155 Marketable water rights may be compatible with article 5’s requirement that watercourses be developed “with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse,” but are incompatible with article 6’s factors for equitable and reasonable utilization.156 Article 6 lists as factors the geographic and hydrological character of the watercourse, watercourse states’ social and economic needs, population dependent on the watercourse, effects of use on other states, existing and potential uses, conservation value, and the availability of alternatives to a planned use.157 These article 6 factors are variable and not all exchanges of water use rights will lead to results that satisfy them. It appears that articles 5 and 6 do not contemplate water markets where users enter into trades that do take account all of the article 6 factors for equitable and reasonable use. Water rights marketing recognizes that initial allocations may be suboptimal (or become so as states develop independently) and facilitates states achieving reasonable water distribution that may not necessarily be equitable. Accepting imperfect allocations and rectifying

152 S. C. McCaffery, “Convention on the Law of the Non-navigational Uses of International Watercourses”, available at: , introduction. See Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, ICJ Reports 1997, 7. 153 The treaty currently has 27 parties out of a required 35. Iraq acceded 9 July 2001; Syria ratified 2 April 1998, UN Treaty Collection, available at: . 154 Sherk et al., supra note 30. 155 Art. 5 UN Watercourse Convention, supra note 22. See also Republic of Turkey, Min­ istry of Foreign Affairs, Turkey’s Policy on Water Issues, 2011, available at: . 156 Art. 5 UN Watercourse Convention, supra note 22; E. Brown-Weiss, The Evolution of International Water Law, RdC 331 (2007), 167 (227–228), highlights the difficulty of reconciling international water law and international water markets. 157 Art. 6 UN Watercourse Convention, supra note 22.



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them through trade is paramount to water markets and anathema to the requirements of article 6. Fortunately, the UN Watercourse Convention contemplates that states might do by agreement that which it otherwise prohibits. Article 24 allows states to enter agreements for “promoting the rational and optimal utilization, protection and control of the watercourse.”158 And article 3 provides that such agreements apply and adjust the provisions of the present Convention (. . .) except insofar as the agreement adversely affects, to a significant extent, the use by one or more other watercourse states of the waters of the watercourse, without their express consent.159

This ‘no significant adverse effects without consent’ standard is much lower than the equitable and reasonable use proscribed by article 6. In a watercourse agreement that allows trades consent will be given at two levels: first when the states enter the agreement and second, because a transaction cannot occur without two willing parties, whenever a transaction occurs. A potential problem could still arise if a state entered into an agreement or transaction that caused significant harm. That a voluntary agreement would result in significant harm is not impossible and could arise from a number of scenarios. In one, a government could agree to a water sale that left it unable to meet domestic water needs. Though this could be the result of malevolence it is more likely that it would arise from a state acting with insufficient data about its current domestic uses. In another, if a large downstream user in Iraq sold water rights to Turkey all users in between could suffer from reduced water quality. Another troubling scenario would involve a sub-national water authority selling the rights to more water than it is authorized to: here the Kurdish regional government possesses a particular challenge. Fortunately the later two scenarios could be addressed by requiring government approval for international sales over a certain amount. Regarding the former, harmful transactions made out of ignorance should be avoidable with better data but malevolent state action would go unchecked. By entering into a watercourse agreement that allows trading, the riparians can move beyond inequitable water allocation and seek rational and optimal utilization of the Tigris and Euphrates waters through transfers by consenting parties that do not cause significant harm while still complying with the UN Watercourse Convention. Transferable water use rights cannot stop upstream states closing dams and, in violation of international law, denying water to downstream users.160 Transferable water rights can help create an agreement rendering such scenarios much less likely.161 158 Ibid. 159 Ibid. 160 Elver, supra note 6, at 347–348, 352. 161 Fisher / Huber-Lee, supra note 33, at 71.

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9. Islamic Law Allows Transferable Water Rights with Only Modest Restriction The Syrian and Iraqi constitutions recognize Islam as a principle basis for legislation while Iran titles itself an Islamic Republic. Joining an agreement contradictory to Islamic principles would be difficult for any of the three.162 Consistency with Islamic law may also be important for cultural acceptance as Muslims make up 98 % of the population of Turkey, 92 % of the population of Syria, and 99 % of the populations of Iraq and Iran.163 In addition to the Koran, Islamic law is found in thousands of Hadiths, recording of acts of the prophet Mohammed; Ijma, scholarly consensus; and Qiyas, analytical deductions.164 Different schools of jurisprudence attribute differing weight to sources leading to varying interpretations.165 A contemporary examination of the Ibahi code, a branch of Islamic practice developed in Oman and North Africa, describes a flexible and pragmatic water law.166 Water may be “separable from land and crop (. . .) land and water form an associated unit and that the appropriations are only suitable to the cultivation practices for which they were designed.”167 In times of flood and drought “[t]emporary surpluses and shortages may arise and water rights may be rented or temporarily sold.”168 A 10th Century Shafi’i Jurist reviewing Islamic law of governance also encountered pragmatic approaches: finding three ways canal users might divide water, including pro rata division, negotiated volume release, and random ordered rotation;169 That a well owner possessing a surplus is obliged to allow humans and thirsty animals to drink from it, though he may charge for the latter depending circumstances, but is not to provide water for crops or plants;170 similarly the owner of a spring can sell water to farmers but not herders;171 and the owner of a well or spring may

162 “Islamic jurisprudence is a main source of legislation”, art. 3 (2) Constitution of the Syrian Arab Republic, (1973); “First: Islam is the official religion of the State and is a foundation source of legislation: A. No law may be enacted that contradicts the estab­ lished provisions of Islam”, art 2 (1) Constitution of Iraq, supra note 104. 163 PEW Forum, “Mapping the Global Muslim Population”, October 2009, available at; . 164 See generally, W. B. Hallaq, “The law how is it found”, An introduction to Islamic Law, 2009, 14–26. 165 The primary school of Sunni Jurisprudence are Hanafi, Maliki, Shafi’ i and Hanbali, each named after their respective master jurist. Shai and other Islamic groups have separate legal schools, Ibid., 31. 166 J. C. Wilkinson, “Muslim Land and Water Law”, JIS 1 (1990), 54, 59–60, 67. 167 Ibid., 63. 168 Ibid., 62. 169 Al-Mawardi, “Al-Ahkām al-Sultāniyya w’ al-Wilāyāt al-Dīniyya”, translated in: W. H. Wahba, The Ordinances of Government, (1996), 198. 170 Ibid., 200. 171  Ibid., 201.



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“sell it and keep its price.”172 Such rules compliment marketable water use rights, allowing liberal short-term leasing of water rights in times of flood or drought but requiring that long-term use transfers occur between users whose water use will have comparable third party effects, while recognizing the need to provide basic access to drinking water. Complying with Islamic law will require regulations on upstream users buying water rights and leading to higher salinity and reduced in stream flows for users located between the buyer and the seller who would have access to less water and water subject to greater use and thus of lesser quality than before the trade. V. Conclusion Marketable water use rights will improve a Tigris-Euphrates basin management agreement, help address local conditions, create value, and provide flexibility. Initially the riparians should enter into a basin management agreement using the best data available on river flows and domestic consumption, and incorporating existing agreements. The agreement should allocate water rights using conservative estimates of water flows, if the states can agree only on an incomplete allocation of the water flows they should place the disputed rights into a trust able to sell water rights. Negotiations over the water rights would become negotiation over the receipts of the trust. These negotiations could continue over time as more data was collected about river flows and states learned more about their domestic water use. Domestically, states should define and recognize the current status of water rights. A gradual process will permit trading and regulation to evolve over time. Small-scale water markets will develop within each state, using national law to determine current allocations and limit total allocation to what is sustainable. States could begin to recognize and reduce subsidies, moving toward market based pricing or at least to pricing that covered cost. Transfers might occur within districts or from agricultural districts to cities. Including transferable water use rights at both the international and domestic level will make any Tigris-Euphrates allocation agreement more palatable, efficient, and sustainable.

172 Ibid.

chapter seven

Dams on Euphrates and Tigris: Impact and Regulation Through International Law Nicolas Bremer

I. Introduction Mesopotamia—the land between two rivers—was historically perceived as a freshwater rich region in the arid Arabian Peninsula. Despite the intense seasonal and yearly fluctuations of the flow of Euphrates and Tigris, their water was the basis for the advance of Neolithic and Bronze Age civilizations such as the Hattian and Hittitian cultures in Anatolia, the Assyrian culture in Northern Mesopotamia, the Babylonian culture in central Mesopotamia and the Sumerian culture in southern Mesopotamia. While not new to the desert regions of Syria and Iraq, freshwater scarcity is a rather recent issue on the banks of Euphrates and Tigris, as is the international dimension of freshwater distribution and utilization. Significant international tension over the water of Euphrates and Tigris did not occur before the 1970s, when the first large dams were constructed on the Euphrates. Large dams impact rivers unlike any other freshwater development. They change the most essential characteristic of a river: its flow. While early dams were too small to form reservoirs extensive enough to significantly affect a river’s flow, technological advances in the early 20th century enabled humans to build dams large enough to fundamentally alter a river’s flow regime. Dams of such scale are generally referred to as ‘large dams’.1 The first dam that could be described as a large dam in this sense is the Hoover Dam built in the United States on the Colorado river in the 1930s. Construction of the first large dam in the EuphratesTigris river system, the Turkish Keban Dam on the Euphrates, began in 1966.

1 Dams with a height of at least 15 m or with a reservoir capacity of at least 3 mcm are considered as large dams; World Commission on Dams (WCD), “Dams and Develop­ ment, A new Framework for Decision-Making”, The Report of the World Commission on Dams, 2000, 11.

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Syria followed shortly after, in 1968, and took up construction of the Tabqa Dam on the Euphrates. These dams and those subsequently erected on Euphrates and Tigris substantially altered the natural flow regime of Euphrates and Tigris and enabled the riparian states2 to noticeably influence the rivers’ flow. This potential to change the rivers’ flow is one of the core factors of the tensions over the waters of the Euphrates and Tigris. Another key issue is the huge amount of freshwater the states will require to operate their irrigation and hydro-electric developments. The water demand of the Iraqi, Syrian and Turkish freshwater developments planned on the Euphrates are estimated to by far exceed the flow of the river and those of the Tigris will require close to its total flow. At the center of these developments, again, are dams. Thus, dams are at the heart of the dispute over the waters of the Euphrates and Tigris. Therefore this contribution seeks to introduce the reader to the large dams built and planned on Euphrates and Tigris and the freshwater developments they supply, their impact on the rivers and specifically the regulation of such developments under international law. The contribution will first give an overview of the uses and impacts of large dam projects and the conflict over dams in the Euphrates-Tigris region. The second section will then discuss the extent to which large dam projects are regulated by international law. To further illustrate such regulation and its acceptance by the Euphrates-Tigris riparian states, specific dam projects constructed and planned on Euphrates and Tigris will be used as examples when discussing the international law on non-navigational uses of freshwater.

2 Euphrates and Tigris spring from the mountains of southeastern Anatolia. The Euphra­ tes then flows through northern Syria and Iraq, while the Tigris merely touches Syria on a short stretch where it forms the border between Syria and Turkey before it enters Iraq. In southern Iraq the two rivers enter the aquifer of the Mesopotamian Marshlands and just north of Basra they join to form the Shatt al-Arab and discharge into the Per­ sian Gulf. Since the Tigris receives significant tributaries from rivers that originate in the Iranian Zagros Mountains and the Shatt al-Arab is in part a border river between Iran and Iraq, Iran also is a riparian state of the Euphrates-Tigris river system. In addi­ tion, the Euphrates feeds groundwater reservoirs in Jordan and Saudi Arabia and the Shatt al-Arab aquifer extends onto Kuwaiti territory. Hence Jordan, Kuwait and Saudi Arabia are riparian states of the Euphrates-Tigris river system’s aquifer. Still, since the interests of Iraq, Syria and Turkey in the Euphrates-Tigris river system far exceed those of Iran, Jordan, Kuwait and Saudi Arabia this contribution will focus on Iraq, Syria and Turkey. The term ‘riparian states’ when used in reference to Euphrates and Tigris is, therefore, to be understood as referring to Iraq, Syria and Turkey. For an overview of the course of Euphrates and Tigris and the interests their riparian states have in their use see inter alia FAO, “Irrigation in the Middle East, Region in Figures, Aquastat Survey 2008”, FAO Water Report 34 (2009), 65; D. Altinbilek, “Development and Management of the Euphrates-Tigris Basin”, Int’l J. Water Res. Devel. 20 (2004), 15 (18).



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II. Large Dams and Subsequent Freshwater Developments—Conflict over Dams in the Euphrates-Tigris River System All three riparian states have significantly developed their uses of Euphrates and Tigris’ waters over the last 50 years and continue to intensify their developments: Turkey with the Southeastern Anatolia Project (GAP, in its Turkish acronym) which comprises 22 large dams; Syria with three large dams on the Euphrates, with the Tabqa Dam being the central development; and Iraq with 15 large and medium sized dams on Euphrates and Tigris.3 The situation is especially disconcerting on the Euphrates. According to the estimates of hydrologists, the Turkish developments alone will withdraw between 50 to 70 % of the total flow of the Euphrates when they are finalized. When added up, water demand of the Iraqi, Syrian and Turkish freshwater developments on the Euphrates is expected to exceed about 150 % of the total flow of the Euphrates when they become fully operational.4 While the situation on the Tigris is less stressed, it is nonetheless alarming. According to estimates by Beaumont the total water demand of the freshwater developments planned and finalized on the Tigris by the riparian states possibly would exceed the Tigris’s total flow.5

3 FAO, supra note 2, at 69. 4 Kliot estimates the water demand with about 50.9 km3 per year and a flow of 31 km3 per year (hence the demand would exceed the availability by 19.9 km3 per year); N. Kliot, Water Resources and Conflicts in the Middle East, 1993, 135 et seq. Beaumont estimates the water demand with 42.3 to 54.8 km3 per year and the flow with 31.8 km3 per year (hence the demand would exceed the availability by 10.5 to 23 km3 per year); P. Beaumont, “Restructuring of Water Usage in the Tigris-Euphrates Basin: The Impact of Modern Water Management Policies”, Yale F&ES Bulletin 103 (1998), 168 (179). Also cf. D. Brauer, “Umstrittene Entwicklung: Die Staudammprojekte der Türkei an Euphrat und Tigris”, E+Z 6 (2001), 188 et seq.; W. Scheumann, “Conflicts on the Euphrates, An Analysis of Water and Non-water Issues”, in: W. Scheumann / M. Schiffler (eds), Water in the Middle East: The Potential of Conflicts and Prospect for Cooperation, 1998, 117. Altinbilek on the other hand does not expect the water demands to be so high. He estimates it to be ca. 35.5 km3 per year and the total flow of the Euphrates to be 31.68 km3 per year (hence the demand would exceed the availability by 3.82 km3 per year); Altinbilek, supra note 2, at 27. 5 Beaumont estimates the water demand with 44.4 to 68.3 km3 per year and the flow with 52.7 km3 per year (hence the relation might shift between the water availability exceed­ ing the demand by 8.2 km3 per year and the water demand exceeding the availability by 15.7 km3 per year); Beaumont, supra note 4, at 182. It should be noted that Beau­ mont did not consider the 1.25 km3 per year of the Tigris’ water granted to Syria by Iraq (art. 3 (1) Agreement between the Republic of Iraq and the Arabic Republic of Syria on the Construction of a Syrian Pumping Station on the Tigris of 2002, published in: art. 2 of the Official Gazette of the Arabic Republic of Syria of 8 October 2003) and Turkey (art. 4 (1) Memorandum of Understanding Between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic on Establishment of a Pump­ ing Station in the Territories of Syrian Arab Republic for Water Withdrawal from the

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Other hydrologists expect that the water demands will amount to a large portion of the Tigris’s total flow; however, they do not expect it to exceed the flow.6 In addition to the issue of water quantity, poor water quality and especially high water salinity threaten the freshwater supply of the Euphrates-Tigris region. While salinization is a growing concern on the Tigris, the situation is utterly devastating on the Euphrates. In fact, salinization of the Euphrates is so dramatic that—according to World Health Organization (WHO) standards—the Euphrates’ water is unfit for human consumption downstream from the Syrian-Turkish border.7 1. The Applications and Effects of Large Dams and Subsequent Freshwater Development Projects Dams can serve multiple purposes. In particular, in semi-arid and arid regions securing a supply of freshwater for drinking has always been an essential use of dams. However, from the Neolithic age until today, probably the most important application of dams in the Euphrates-Tigris region is supplying irrigation schemes with water.8 This is due to the intense seasonal and yearly fluctuations in the flow of Euphrates and Tigris, which make the steady supply control that dams provide indispensable for the development of larger irrigation schemes. In addition to dams and their reservoirs, irrigation schemes require extensive infrastructure for water transportation, irrigation and drainage. Regrettably many irrigation schemes in the Euphrates-Tigris region are equipped with inefficient infrastructure. For example some irrigation schemes in the region still use open channels as means of water transportation rather than solid gutters or enclosed pipes, which lose far less water through seepage and evaporation.9 Furthermore, large areas in the Euphrates-Tigris region are irrigated not with sprinklers or

Tigris River of 2009, concluded in Arabic, English and Turkish, unpublished, on file with the author). Hence, the water demand estimated by Beaumont has to be increased by 1.25 km3 per year. 6 Kliot estimates the water demand with about 38.7 km3 per year and a flow of 49.2 km3 per year (hence the water availability would exceed the demand by 10.5 km3 per year); Kliot, supra note 4, at 135, 141, 144. Altinbilek estimates the water demand with 47.7 km3 per year at a flow of 48 to 52.6 km3 per year (hence the water availability would exceed the demand by 0.3 to 4.9 km3 per year); Altinbilek, supra note 2, at 27. Like Beaumont, these authors did not consider the 1.25 km3 water per year granted to Syria by Iraq and Turkey. 7 Water with a salinity of 300 ppm is regarded as drinking water with excellent quality; water with a salinity of 300 to 600 ppm is regarded as having good drinking water qual­ ity; and water with a salinity of more than 1,000 ppm cannot be used as drinking water; WHO, Guidelines for Drinking-water Quality, 2011, 228. 8 Close to all dams operated on Euphrates and Tigris serve at least among other uses as a reservoir for irrigation schemes; FAO, supra note 2, at 69. 9 FAO, supra note 2, at 207 et seq., 347 et seq., 363 et seq.



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drip irrigation, but rather by so-called simple surface irrigation, which consists of indiscriminately flushing water onto fields, the result of which is inefficient use of irrigation water.10 Still, inefficiency is not the only problem with improper irrigation. Excessive irrigation can cause the groundwater level to rise (so-called ‘water logging’). Where the groundwater level is close to the surface groundwater, salt naturally stored in the ground is drawn to the surface by capillary action. When this water is evaporated from the top soil layers it causes soil salinization.11 The salts stored in the top soil layers are then flushed out and transported back into the freshwater systems by the irrigation return flow.12 In the Euphrates, salinization is already a huge problem. While the salinity of the river’s headwaters is quite low with about 260 parts per million (ppm), it rises substantially to about 1,040 ppm at the Syrian-Turkish border.13 While the salinity of the Euphrates’ water rises only slightly to about 1,100 ppm downstream from the Syrian-Turkish border, it again increases substantially downstream from the Iraqi city of Kufa (ca. 150 km south of Baghdad) to about 3,000 ppm at Samawah (ca. 150 km downstream from Kufa) and peaks at about 4,000 ppm at Nassiriah (ca. 100 km downstream from Samawah).14 These measurements are extremely alarming considering that according to WHO standards, water with a salinity exceeding 1,000 ppm is unfit for human

10 In simple surface irrigation ca. 15 to 40 % of the irrigation water is lost through seepage or evaporation. Where sprinkler irrigation is used ca. 10 to 30 % is lost. Drip irrigation schemes lose between 10 and 12 %; FAO, supra note 2, at 12; UNESCO, UN World Water Development Report 3, 2009, 260. 11  WCD, supra note 1, at 66. Capillary action is a liquid’s ability to flow against gravity in a narrow space such as the spaces between soil particles due to inter-molecular attractive forces between the liquid and solid surrounding surfaces. Where the space the liquid is in is sufficiently small, the combination of surface tension (caused by cohesion within the liquid) and the adhesion forces between the liquid and container act to lift the liquid; J. Marcinek / E. Rosenkranz, Das Wasser der Erde, Eine geographische Meeresund Gewässerkunde, 2000, 239 et seq. 12 K. A. Rahi / T. Halihan, “Changes in the Salinity of the Euphrates River System in Iraq”, Reg Environ Change 10 (2010), 27 (31); P. H. Gleick, “Fresh Water Data”, in: P. H. Gleick (ed.), Water in Crisis, A Guide to the World’s Fresh Water Resources, 1993, 232. 13 Rahi / Halihan, supra note 12, at 31; M. A. al-Layla / L. N. Fathalla, “Impact of Lakes on Water Quality”, in: S. Ragone (ed.), Regional Characterization of Water Quality, 1989, 169. 14 Data from 2001 according to Iraqi Ministry of Irrigation, “Findings of the Study on the Development in Salinity of the Rivers Euphrates and Tigris between 1997 and 2001”, conducted by the Iraqi Ministry of Irrigation, issued in 2003. More recent data is not available. Still, hydrologists assume that the salinity of the Euphrates in Iraq rose by about 100 ppm per year since 2001; Rahi / Halihan, supra note 12, at 29 et seq. How­ ever, since this assumption is not confirmed by data, this study is based on the data collected in 2001.

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consumption.15 Where the salinity rises above 2,000 ppm it cannot be utilized for crop irrigation and where it exceeds 3,000 ppm, the water cannot be fed to even the more resistant livestock without danger of severe health problems for the animals.16 Thus, the Euphrates’ water is unfit for human consumption downstream from the Syrian-Turkish border and cannot be utilized for irrigation or as drinking water for livestock downstream from Samawah. The Tigris is, so far, much less affected by salinization. Its headwaters have a salinity of 275 ppm, and at present no rise in the Tigris’ salinity upstream from where it enters Iraq is documented.17 However, in a joint position paper issued in 1999 the Iraqi Ministry of Foreign Affairs and the Iraqi Ministry of Irrigation assume that when the GAP Tigris developments are fully operational they will cause the Tigris’ salinity to rise to 375 ppm at Faysh Khabour, where it enters Iraq.18 And according to a more recent study by the Iraqi Ministry of Water Resources, the concentration of salts in the Tigris’ water will even rise to 550 ppm at Faysh Khabour.19 Nonetheless, compared to the Euphrates, the increase in salinity of the Tigris’ water in Turkey is far less substantial. Furthermore it needs to be pointed out, that the data presented by the Iraqi ministries was never commented on by Turkey and is not supported by independent sources. As of now, the salinity rises to 1,000 ppm at Baghdad and stays on this level until Kut (ca. 200 km downstream of Baghdad). At Ali al-Sharki (150 km downstream of Kut) the river’s salinity reaches its highest level with 2,250 ppm.20 Another consequence of improper irrigation is erosion. Excess irrigation water that runs off washes away large amounts of soil, resulting in a decline in the fertility of the irrigated areas. This is a significant problem in the irrigation projects

15  Water with a salinity of 300 ppm is regarded as drinking water with excellent quality; water with a salinity of 300 to 600 ppm is regarded as having good drinking water quality; and water with a salinity of more than 1,000 ppm cannot be used as drinking water; WHO, supra note 7, at 228; WHO, “Total Dissolved Solids in Drinking-water, Background document for development of WHO Guidelines for Drinking-water Qual­ ity”, WHO Doc. WHO/SDE/WSH/03.04/16 of 2003, 1. 16  FAO, “Water Quality for Agriculture”, 1976, Chapters 1.4 and 6.2, available at: . 17  Iraqi Ministry of Irrigation, supra note 14; al-Layla / Fathalla, supra note 13, at 167. 18  Iraqi Ministry of Foreign Affairs / Iraqi Ministry of Irrigation, The Division of Waters under the International Law, Facts on the joint Waters with Turkey, 1999, 16 (on file with the author). 19  Iraqi Ministry of Water Resources, The Ilisu Dam on the Tigris River in Turkey, 2006, 11 (on file with the author). 20 Data from 2001 according to Iraqi Ministry of Irrigation, supra note 14. There are no more recent studies on salinity of the Tigris available. An older study of 1990 shows that the Tigris’s water had a salinity of 275 ppm when entering Iraq and rose to about 465 ppm due to the discharge of the Samarra-Tharthar Reservoir. Until the Tigris joins with the Euphrates, its water did not rise above 820 ppm in 1982; al-Layla / Fathalla, supra note 13, at 168.



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in the Turkish Şanliurfa-Harran Plain, which are supplied with water from the Atatürk Dam’s reservoir. These lands are so badly affected by erosion that on some fields the bedrock is exposed, rendering them useless for growing crops. As a result of the erosion in Turkey, the Euphrates transports about 670 tons of sediments per day at the Syrian-Turkish border.21 Irrigation, however, does not remain the only use of dams. Especially where rivers are charged by the annual snowmelt, as for example Euphrates and Tigris, the seasonal flow can fluctuate quite drastically. Peak flows in late spring and early summer can cause severe floods. The first dams used for flood control date back to about 2,650 B.C.22 Like irrigation, flood control is still a crucial use of dams today. For instance the Iraqi Samarra-Tharthar Dam system, the largest reservoir in the Euphrates-Tigris river system, solely serves as a means to control spring floods on the Tigris.23 A comparatively new use of dams is their capacity for energy production. To this end, dam reservoirs are used as storage for Hydro-Electric Power Plants (HEPP). Energy production and the trade of energy are comparatively lucrative uses of dams, which is why most dams are equipped with HEPP today, even if their main purpose may be a different one.24 While there are different types of HEPP, all relevant HEPP on Euphrates and Tigris are water storage HEPP. Such water storage HEPP store energy in the form of the potential energy (storage energy) of a river by backing up its water in a reservoir during periods with high 21  FAO, “Identification Report Project, Research and Development (R&D) Programme for Sustainable Agricultural Water Management in Southeastern Anatolia”, Report of the International Programme for Technology and Research in Irrigation and Drainage (IPTRID) Identification Mission to the GAP Region, 2003, 27 et seq.; M. Berkun, “Envi­ ronmental Evaluation of Turkey’s Transboundary Rivers’ Hydropower Systems”, Can. J. Civ. Eng. 37 (2010), 684 (688); Y. Darama et al., “Problems Related to the Soil Erosion and Sediment Tansport in the Şanliurfa-Harran Irrigation Scheme”, in: V. Eroğlu (ed.), International Congress on River Basin Management, Congress Proceedings, 2007, 553. 22 The oldest documented flood control dam is the Sad al-Kafara, erected on the Nile close to the Egyptian city of Memphis around 2,650 B.C. The first flood control dam in the Euphrates-Tigris river system is said to be the Marduk or Nimrud Dam. Historians believe it was erected in Iraq between Samarra and Baghdad at around 2,000 B.C., L. W. Mays, “A Brief History of Water Technology During Antiquity, Before the Romans”, in: L. W. Mays (ed.), Ancient Water Technology, 2009, 2, 58 et seq.; N. J. Schnitter, A His­ tory of Dams, The Useful Pyramids, 1994, 1 et seq.; N. Smith, A History of Dams, 1971, 1 et seq., 8. Schnitter, however, believes the Marduk Dam to be merely a legend; Schnit­ ter, at 16 et seq. 23 For an overview of the layout and operation of the Samarra-Tharthar dam system see C. Jones et al., “Hydrologic Impacts of Engineering Projects on the Tigris-Euphrates System and its Marshlands”, J. Hydrol. 353 (2008), 59 (69). 24 Aside from the Palandoken Dam, there is no Turkish dam on the two rivers with a water storage capacity of more than 0.2 km3 which is not equipped with an HydroElectric Power Plants (HEPP) and all large dams in Syria and Iraq are equipped with HEPPs; FAO, supra note 2, at 69.

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flows or when the energy demands can be satisfied by other power plants. When the energy demand rises or the flow of the river is particularly low, the stored water can be released through the turbines of the HEPP to convert the potential energy into electric energy. Due to their ability to adjust to short-term fluctuations in energy demand, water storage HEPP are commonly used to satisfy peak energy demands.25 In the 1960s and 1970s dams were seen as a good investment due to the possibility to generate energy without emitting carbon.26 It was not until the 1980s that the adverse social and ecological impacts of large dams and HEPP became a significant point of concern.27 Specifically dams equipped with water storage HEPP tremendously impact a river’s flow regime. To operate an HEPP, large amounts of water are held back in a dam’s reservoir during times of high natural flows in order to release this water supplementary to the natural flow during times of low natural flow. Thereby the dam stabilizes natural flow fluctuations, altering the natural flow regime of the river. Such a stabilization of a river’s flow may seem beneficial, since it enhances the overall usability of the river. Naturally occurring floods are, however, important for maintaining a river’s profile because of the large amounts of sediment they move and deposit. Reduced flooding, therefore, can cause sediments to build up, reducing water depth, filling in pools and smothering habitats. Furthermore without natural flooding, the river channel’s size may decrease, rendering it incapable of containing increased flows during intense wet years.28 In addition a change in a river’s flow regime may make previous river developments obsolete. For instance when Iraq constructed the Mosul dam on the Tigris in the 1980s, the dam was designed to balance the heavy fluctuations in the Tigris’ flow. When the Ilisu Dam is finalized upstream on the Tigris in Turkey this dam will, however, stabilize the Tigris’ flow. Consequently the Mosul Dam may become partially obsolete. To stabilize the Tigris’ flow in order to allow operation of the HEPP and irrigation schemes connected to the Mosul Dam, the Mosul Dam will only need to

25 W. Atkins, Water Encyclopedia, Hydrolectirc Power, available at: ; A. Khaligh / O. C. Onar, “Energy Sources”, in: Rashid (ed.), Power Electronics Handbook, 2011, 1298. 26 The oil crisis of the 1970s played a key role in the growing interest in alternative sources of energy such as water power; UNESCO, supra note 10, at 118. 27 World Bank, OED Précis No. 125, World Bank Lending for Large Dams, A Preliminary Review of Impact, 1996, para. 1 et seq. 28 For an overview of how the natural flow regime defines a river and the consequences that changes of flow patterns might have on the river’s dynamic and biosphere, see e.g. S. E. Bunn / A. H. Arthington, “Basic Principles and Ecological Consequences of Altered Flow Regimes for Aquatic Biodiversity”, Environmental Management 30 (2002), 492 (493 et seq.); N. L. Poff et al., “The Natural Flow Regime, A Paradigm for River Con­ servation and Restoration”, BioScience 47 (1997), 769 (771 et seq.).



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balance minor fluctuations caused by the Ilisu Dam’s HEPP and downstream from the Ilisu Dam rather than the significant fluctuations of the Tigris’ natural flow. For this purpose a dam smaller than the Mosul Dam would be sufficient. Thus the implementation of the Ilisu Dam may render the Mosul Dam oversized for the Tigris’ fluctuation at the location of the Mosul Dam. Still, the implementation of the Ilisu Dam would not affect the operation of the HEPP and the irrigation schemes connected to the Mosul Dam, and hence would not affect the utilization of the Tigris through the developments connected to the Mosul Dam.29 No less important than their hydrological and geomorphic impacts, dams also have immense social consequences. As dam reservoirs flood vast areas and often submerge towns and cities, people have to be resettled and may lose their livelihoods.30 Resettlement—both in its theory and execution—is a huge source of tension in regard to the Turkish Ilisu Dam. In addition to the already controversial issue of resettlement, some of the towns that will be flooded by the Ilisu Dam’s reservoir are of historic value. Furthermore, the risk of waterborne diseases or diseases transmitted by insects thriving in water increases in the vicinity of large bodies of freshwater such as dam reservoirs.31 2. Conflict over Dams in the Euphrates-Tigris River System Dams have a particularly long history in the Euphrates-Tigris region. Around 5,500 B.C. early populations in central Iraq started diverting water from Euphrates and Tigris with stone dams to form reservoirs, which they used as a steady water supply for irrigation. This technique made them less dependent on the immensely fluctuating flow of Euphrates and Tigris and enabled the Sumerian civilization to evolve in southern Iraq, an area with particularly low precipitation.32

29 For the changes in the Tigris’ flow caused by the operation of the Ilisu Dam see inter alia Ilisu Engineers Group, Ilisu Dam and HEPP Environmental Impact Assessment Report 2001, 40–42. 30 ECA Watch, A Trojan Horse for Large Dams, How Export Credit Agencies are Offering a New Subsidies for Destructive Projects under the Guise of Environmental Protection, 2005, 4; A. Epiney, “Nachbarrechtliche Pflichten im internationalen Wasserrecht und Implikationen von Drittstaaten, Aufgezeigt am Beispiel des Staudammprojekts‚ Ilisu’ (Türkei)”, ArchVR 39 (2001), 1 (7). 31  Waterborne diseases are diseases caused by agents directly transmitted when contami­ nated water is consumed. Diseases passed by insects are e.g. malaria, which is passed by mosquitoes, which depend on water for reproduction; cf. FAO, supra note 2, at 58 et seq. 32 Cf. World Bank, Iraq, Country Water Resource Assistance Strategy, Addressing Major Threats to People’s Livelihood, 2006, 1; Altinbilek, supra note 2, at 20; Mays, supra note 22, at 1. The significance of artificial irrigation in early Mesopotamian cultures is fur­ ther illustrated by early Mesopotamian legislative texts, e.g. the Codex Ur-Namma, a legal document drafted ca. 2,100 B.C. during the third dynasty of Ur, a city located in southwestern Iraq, entitles a person to compensation for damages cause by improper

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In the 1950s and 1960s Iraq, Syria and Turkey started to significantly extend their development of Euphrates and Tigris. Their growing interest in the two rivers and their large-scale development led them to commence the first trilateral negotiations on the distribution and utilization of the water of the Euphrates and Tigris in 1965. During these meetings, the three countries exchanged information on anticipated hydrological works on the two rivers, such as the Turkish Keban Dam and the Syrian Tabqa Dam.33 The first notable water related crisis between the Euphrates-Tigris riparian states arose shortly after Syria and Turkey finalized the Tabqa Dam and the Keban Dam, respectively, on the Euphrates in 1974. Both states held back large amounts of water for the initial impounding of the dams’ reservoirs in the 1970s, which was already a dry period in the region. In total, the flow of the Euphrates at the Iraqi-Syrian border was reduced by ca. 50 %.34 Iraq considered this flow reduction to be unbearable.35 At first, it sought a diplomatic solution with Syria through the Arab League and started tripartite negotiations with Syria and Turkey in an ad hoc established Joint Technical Committee ( JTC). However, no agreement could be reached, and tension continued to build, reaching its zenith after Iraq threatened to bomb the Tabqa Dam, and Iraq and Syria moved troops to their shared border in 1975.36 Finally, under mediation by Saudi Arabia, Iraq and Syria found a peaceful solution when Syria agreed to let 40 % of the ­Euphrates’

irrigation (cf. para. 31 Codex Ur-Namma: “if a man floods another man’s field, he shall measure and deliver 900 silas of grain per 100 sars of field”; English translation as cited in M. T. Roth, Law Collections from Mesopotamia and Asia Minor, 1997, 21. A similar provision can be found in the Codex Hammurabi, a legal text drafted by the Babylonian king Hammurabi at around 1,750 B.C. para. 53 Codex Hammurabi provides that: If a man neglects to reinforce the embankment of [the irrigation canal of ] his field and does not reinforce its embankment, and a breach opens in its embankment and allows water to carry away the common irrigated area, the man in whose embank­ ment the breach opened shall replace the grain loss he caused. 33 H. Elver, Peaceful Uses of International Rivers, The Euphrates and Tigris Rivers Dispute, 2002, 405; A. Kibaroglu, Building a Regime for the Waters of the Euphrates-Tigris River Basin, 2002, 223 et seq. 34 A. Bourgey, “Le barrage de Tabqa et l’aménagement du bassin l’Euphrate en Syrie”, RGL 49 (1974), 343 (349); E. Burleson, “Equitable and Reasonable Use of Water within the Euphrates-Tigris River Basin”, ELR 35 (2005), 10041 (10046); Elver, supra note 33, at 374. Cunningham even claims the flow was reduced by 67 %; S. L. Cunningham, “Do Brothers Divide Shares Forever, Obstacles to the Effective Use of International Law in the Euphrates River Basin Water Issues”, U. Pa. J. Int’l Econ. L. 21 (2001), 131 (136). How­ ever the FAO claims the flow was only reduced by 25 %; FAO, supra note 2, at 68. 35 Burleson, supra note 34, at 10046; Elver, supra note 33, at 374. 36 Burleson, supra note 34, at 10046; Cunningham, supra note 34, at 136; Kliot, supra note 4, at 161.



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water it received from Turkey run off to Iraq during the initial impounding of the Tabqa Dam’s reservoir.37 Meetings of the JTC commenced again in 1980. Of particular concern to the discussions in these JTC meetings was the Atatürk Dam, of which construction began in 1983 on the Euphrates in Turkey. Although the JTC failed to introduce a comprehensive allocation of the Euphrates’ flow, Syria and Turkey reached an agreement in 1987—the Syrian-Turkish Protocol on Economic Cooperation38— which in its article 6 required Turkey to maintain a minimum flow of the Euphrates of 500 m3/s at the Syrian-Turkish border. Still, when Turkey commenced the initial impounding of the Atatürk Dam’s reservoir in early 1990 Turkey reduced the Euphrates flow to about 65 m3/s in the second half of January and to about 50 m3/s in the first half of February.39 Turkey maintained that this massive reduction was necessary for technical reasons. However, both Iraq and Syria protested the reduction and expressed concerns that with the reduction Turkey intended to assert its power over the Euphrates’ flow rather than fulfil technical requirements.40 Shortly thereafter a new dispute arose over the Turkish Birecik Dam located just upstream from the Syrian-Turkish border on the Euphrates. Iraq and Syria argued the Birecik Dam would inequitably impair their uses of the Euphrates.41 In paragraph 4 of the Damascus Declaration issued in 1995 Syria accused Turkey of both letting untreated polluted water run off into Syria and constructing dams without consulting Iraq and Syria. It went on to demand that Turkey should honor the provisions of the Syrian-Turkish Protocol on Economic Cooperation.42 Turkey dismissed these accusations and argued that the Birecik Dam in fact served the interests of the lower riparian states, since it served as an after-bay dam to balance fluctuations in the Euphrates’ flow caused by the Keban Dam and the Atatürk Dam.43 37  The agreement was never made public. All details published on its content derive from statements of Iraqi officials; cf. FAO, supra note 2, at 68; Cunningham, supra note 34, at 136. 38 Protocol on Matters pertaining to Economic Cooperation between the Syrian Arab Republic and the Republic of Turkey of 1987, English text published in: UNTS Vol. 1724 No. 30069. 39  Turkish Ministry of Foreign Affairs, “Water Issues between Turkey, Syria and Iraq”, Turk. MFA J. Int’l Aff. I (1996), 101 (108); E. Struck, “Das Wasser von Euphrat und Tigris, Die Instrumentalisierung einer natürlichen Ressource”, in: R. Glaser / K. Kremb (eds), Asien, 2007, 36; Elver, supra note 33, at 375. 40 Struck, supra note 39, at 36; Elver, supra note 33, at 376: Also cf. Iraqi Ministry of For­ eign Affairs / Iraqi Ministry of Irrigation, supra note 18, at 28. 41  Elver, supra note 33, at 378. 42 The Damascus Declaration was signed by Bahrain, Egypt, Kuwait, Oman, Qatar, Saudi Arabia, Syria and the United Arab Emirates. For the text of the Damascus Declaration of 1995 see . 43 For the Turkish position cf. Turkish Ministry of Foreign Affairs, supra note 39, at 107.

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The most recent conflict regarding the water of Euphrates and Tigris was sparked by the construction of the Ilisu Dam by Turkey on the Tigris. Construction first began in 1999. Unlike in earlier disputes, in the Ilisu Dam dispute Iraq and Syria appealed not only to Turkey and the Arab States, but also included states outside the Middle East. For example, they addressed a number of European states with a call to protest against investments in the Ilisu project by these states and private companies registered in these states.44 Another new aspect in the Ilisu Dam dispute is the significant involvement of, for the most part, European non-governmental organizations. While these institutions primarily criticize the adverse social effects of the Ilisu Dam in Turkey, they also address concerns regarding the dam’s impact on Iraq and Syria.45 The substantial public criticism of the dam project was successful insofar as nearly all foreign investors withdrew from the project and, as a result, Turkey had to suspend construction of the dam.46 However, after Turkey was able to secure the necessary funding for the dam through different Turkish banks in late 2009, construction on the Ilisu Dam was taken up again in 2010.47 III. Dams in International Law Unlike domestic law, international law is not created by a specific legislative authority but rather by its primary subjects—the states—themselves. Thus

44 A number of western states and foreign private investors considered investing in the Ilisu Dam project; cf. Epiney, supra note 30 at 6; Elver, supra note 33, at 382. Syria and the Arab League contested these investments and maintained the Ilisu Dam project itself and Turkey’s implementation of the project would infringe international law; Elver, supra note 33, at 381; P. Brown, “Ilisu Dam in Jeopardy as Balfour Drops Out”, The Guardian, 14 November 2001, available at: . In a letter dated 8 March 2007 the Iraqi Minister of For­ eign Affairs, Mr. Khosiar Zibari, addressed the EU’s Commissioner of Foreign Affairs, Ms. Benita Ferrero Waldner, and requested that the Commissioner: Interfere to the Government of Turkey to commit itself to give the necessary consid­ erations for the rights of Iraq and Syria in the water of Tigris and Euphrates and to change its plans and projects on these two rivers. Letter by the Iraqi Minister of Foreign Affairs, Mr. Kosiar Zibari to the EU’s Commis­ sioner of Foreign Affairs, Ms. Benita Ferrero Waldner, dated 8 March 2007 (on file with the author). 45 See e.g. the Corner House / Kurdish Human Rights Project, The Ilisu Dam, A Human Rights Disaster in the Making, 1999, 6 et seq.; Kurdish Human Rights Project et al., Downstream Impacts of Turkish Dam Construction on Syria and Iraq, Joint Report of Fact-Finding Mission to Syria and Iraq, 2002, 19 et seq., available at: . 46 ECA Watch, supra note 30, at 20. 47 Z. Elci, “Turkey says to go ahead with Ilisu Dam Construction”, Reuters, 30 December 2009, available at: .



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international law constitutes a cooperative rather than a subordinate legal system. The main sources of international law are treaties, customary law and general principles of law.48 An international treaty is an agreement entered into by actors of international law, competent to conclude international treaties, through mutual and corresponding declaration of intent aimed to constitute, alter, or terminate relations under international law.49 There is, however, no universally binding treaty regulating non-navigational uses of international freshwater systems in force. While the UN attempted to establish a framework convention on the issue, the UN Watercourse Convention50 has not entered into force yet due to an insufficient number of ratifications.51 Nonetheless, since both Iraq and Syria are bound to it,52 and central provisions of the UN Watercourse Convention—such as article 5 (doctrine of equitable utilization), article 7 (no-harm rule), article 11 (obligation to prior notification)— codify international customary law, it still is relevant for the non-navigational use of Euphrates and Tigris.53 It should be noted, however, that specifically Turkey strongly opposes the UN Watercourse Convention.54 In the absence of a universally binding treaty, regional and bilateral treaties largely regulate the non-navigational use of international freshwater systems. In the case of Euphrates and Tigris, however, there are few and only rudimentary treaty regulations addressing their non-navigational use. International customary

48 See art. 38 Statute of the International Court of Justice, 26 June 1945, Stat. 59 (1945), 1055. 49 Fitzmaurice, “Treaties”, in: R. Wolfrum (ed.), Max Planck Encyclopaedia of Public Inter­ national Law, 2008 (online edition), available at: , para. 16 et seq.; G. Dahm et al., Völkerrecht, Vol. I/III, 1989, 513; P. Malanczuk, Akehurst’s Modern Introduction to Public International Law, 2007, 36 et seq.; M. N. Shaw, International Law, 2008, 904 et seq. 50 UN Convention on the Law of the Non-Navigational Uses of International Water­ courses (UN Watercourse Convention, adopted 21 May 1997, not yet entered into force) ILM 36 (1997), 700. 51  Pursuant to art. 36 UN Watercourse Convention the convention enters into force upon the “deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations”. However, as of July 2013 only 30 states have ratified the convention or declared their acceptance or approval of or their accession to it, see . 52 Iraq declared accession to the convention and Syria ratified it, see . 53 M. M. Rahaman, “Principles of International Water Law: Creating Effective Transbound­ ary Water Resources Management”, Int’l J. Sustainable Society 1 (2009), 207 (210 et seq.); M. A. Salman, “The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law”, Int’l J. Water Res. Devel. 23 (2007), 625 (631 et seq.). 54 See e.g. Turkey’s position in the discussions preceding the UN GA’s adaption of the ILC Draft Articles on International Watercourses as UN Watercourse Convention, Report of the fifty-first Session of the UN GA, UN Doc. A/51/PV.99 of 21 May 1997, 5.

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law, therefore, is an important factor in the regulation of the distribution and utilization of the rivers’ water. International customary law is a general practice accepted as law. Thus the constitutive elements of international customary law are twofold: a general practice and the belief of the practicing entities that international law obliges them to abide by this practice (so-called opinio iuris). Practice in this sense means active or passive state conduct (e.g. official acts of government, conclusive behavior, omissions). To be regarded as general such practice has to be of a certain duration, unity and extent.55 In this respect the participation of the vast majority of states (often referred to as ‘quasi-universal practice’) is sufficient. In addition the states have to partake in this quasi-universal practice because they believe they are obligated to do so by international law. Like the general practice, this opinio iuris does not have to be shared by all states; a quasi-universal opinio iuris is sufficient.56 Since international customary law may evolve without the participation of all states, a state may exclude itself from the legal binding force of a provision of international customary law by persistent objection; i.e. by continuously expressing its opposition to the provision.57 When addressing international law governing non-navigational uses of freshwater a distinction is generally made between so-called ‘material’ and ‘procedural’ regulations. Procedural in this sense is not to be understood as regulations concerning legal proceedings, but rather obligations to inform and consult; thus provisions indirectly affecting the utilization and distribution of freshwater to the non-navigational use of freshwater. Material regulations are those directly ­applying to the distribution and utilization of the water of international freshwater systems.

55 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, ICJ Reports (1969), 4, paras 73 et seq.; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports (1996), 226, para. 64; I. Brownlie, Principles of Public Interna­ tional Law, 2008, 7 et seq.; Dahm et al., supra note 49, at 864; Malanczuk, supra note 49, at 39 et seq.; M. Schröder, “Verantwortlichkeit, Völkerstrafrecht, Streitbeilegung und Sanktionen”, in: W. Vitzthum (ed.), Völkerrecht, 2010, paras 4 et seq.; T. Treves, “Customary International Law”, in: Wolfrum, supra note 49, para. 10 et seq. 56 Cf. North Sea Continental Shelf Cases, supra note 55; Legality of the Threat or Use of Nuclear Weapons, supra note 55; Treves, supra note 55; Brownlie, supra note 55, at 7 et seq. 57 Asylum Case (Colombia v. Peru), Judgment, 20 November 1950, ICJ Reports (1950), 266 (277 et seq.); Fisheries Case (United Kingdom v. Norway), Judgment, 18 December 1951, ICJ Reports (1951), 116 (131); W. Vitzthum, “Begriff, Geschichte und Rechtsquellen des Völkerrechts”, in W. Vitzthum (ed.), supra note 55, para. 133. Some voices in the legal doctrine even go so far to assume that international customary law even binds states that explicitly objected to its formation; cf. J. I. Charney, “The Persistent Objector Rule and the Development of Customary International Law”, BYIL 56 (1985), 1 (21 et seq.); P. Weil, “Towards Relative Normativity in International Law ?”, AJIL 77 (1983), 413 (437 et seq.).



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1. Material Regulation The material regulations of international water law determine to what extent a state may impact an international freshwater system; thus how much water a state may withdraw and to what extent a state may influence the flow regime and water quality of an international freshwater system. Since dams have considerable impact on all these issues, this section discusses how material regulations of international water law regulate the implementation and operation of dams on international rivers and specifically on Euphrates and Tigris. a. Treaty Provisions A document specifically addressing dams is the Syrian-Turkish Memorandum of Understanding on the Friendship Dam,58 in which Syria and Turkey affirmed their intentions to jointly construct and operate a dam on the river Orontes. This Memorandum of Understanding, however, does not include any provisions regulating the specific operation of the dam. However, the Syrian-Turkish Protocol on Economic Cooperation of 1987,59 the Iraqi-Syrian Communiqué on the Distribution of the Euphrates’s Water of 1989,60 the Iraqi-Syria Agreement on a Syrian Pumping Station on the Tigris of 200261 and the Syrian-Turkish Memorandum of Understanding on a Pumping Station on the Tigris of 200962 contain provisions on the quantitative distribution of the flow of Euphrates and Tigris and are thus relevant in respect to dams. aa. Distribution of the Euphrates’ Flow Syria and Turkey agreed to a quantitative distribution of the Euphrates’ flow in the Syrian-Turkish Protocol on Economic Cooperation.63 Pursuant to the ­protocol’s article 6, Turkey is required to maintain a minimum flow of the Euphrates of 500 m3/s at the Syrian-Turkish border. If the average flow falls below 500 m3/s during one month article 6 obliges Turkey to make up for the low flow in the following month. 58 Memorandum of Understanding Between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic for the Construction of a Joint Dam on the Orontes River under the Name ‘Friendship Dam’, 2009, concluded in Arabic, English and Turkish, (on file with the author). 59 Protocol on Matters pertaining to Economic Cooperation between the Syrian Arab Republic and the Republic of Turkey of 1987, supra note 38. 60 Joint Communiqué on the Preliminary Distribution of the Euphrates’s Water between the Arab Republic of Syria and the Republic of Iraq of 1989, published in: Official Gazette of the Republic of Iraq, 12 January 1990, available at: . 61  Supra note 5. 62 Ibid. 63 Protocol on Matters pertaining to Economic Cooperation between the Syrian Arab Republic and the Republic of Turkey of 1987, supra note 38.

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In principle Turkey seems to fulfill this obligation. During the initial impounding of the Atatürk Dam’s reservoir in early 1990, however, Turkey massively reduced the flow of the Euphrates at the Syrian-Turkish border to about 65 m3/s from 13 to 31 January 1990 and 50 m3/s from 1 to 12 February 1990.64 Despite the fact that Turkey released a surplus of water in the first half of January, the average flow of the Euphrates at the Syrian-Turkish border was only 348 m3/s in January 1990.65 Hence Turkey was obligated to release at least 652 m3/s of water in February. Nonetheless Turkey only released 444 m3/s in February;66 thus it infringed its obligation under article 6 in February 1990. Still, despite the fact that article 6 explicitly requires low flows in one month to be compensated for in the following month, Turkey claims that it did not infringe its obligations under article 6, since a surplus of water was released in November and December 1989.67 While Turkey seems to assume that compensating for low flows in advance would sufficiently safeguard Iraqi and Syrian interest, this allegation not only contradicts the wording of article 6 but also its purpose. Compensation prior to a reduction would not be compatible with the purpose of a minimum flow agreement such as article 6. Such an agreement serves to safeguard the lower riparian states. Thus the flow has to be kept constantly at or above the minimum agreed amount. Should the flow, as an exception, fall below the minimum agreed upon, the lower riparian states are to be compensated in the following month in order to limit harm caused by the flow reduction. If however the upper riparian states were free to compensate for flows that fall short of the agreed minimum in advance, they could deduct the amount 64 Turkish Ministry of Foreign Affairs, supra note 39, at 108; Struck, supra note 39, at 36; Elver, supra note 33, at 375. 65 From 1 to 12 January 1990, the Euphrates’ average flow at the Syrian-Turkish border was 740 m3/s. Since the average flow was reduced to 65 m3/s during the remainder of the month, the average flow of the Euphrates at the Syrian-Turkish border for the whole of January 1990 was 348 m3/s. Data according to Turkish Ministry of Foreign Affairs, supra note 39, at 108. To the author’s knowledge Iraq and Syria did not object to this data. 66 Neither Iraq nor Syria contested the amount of water they received from the Euphrates after 12 February. Hence it can be assumed that the average flow was at least 500 m3/s. Yet since the impounding of the reservoir took until 1992, the flow of the Euphrates was most likely still reduced. As there is no data available on the Euphrates’s flow for the time after 12 February 1990, this study assumes in Turkey’s favor that the average flow was as high as it was before the impounding of the Atatürk Dam’s reservoir began, thus 740 m3/s. 67 According to the Turkish Ministry of Foreign Affairs, Turkey released an average of 625 m3/s between 23 and 30 November 1989 818 m3/s between 1 and 31 December 1989, and 740 m3/s from 1 to 13 January 1990 of the Euphrates’s water to Syria. Thus the Euphrates’s average flow at the Syrian-Turkish border was 509 m3/s between 23 Nov­ ember 1989 and 12 February 1990. Turkey maintains it was therefore not obligated to make up for any flow reductions that occurred in early 1990, Turkish Ministry of For­ eign Affairs, supra note 39, at 106; Turkish Ministry of Foreign Affairs, “Water: A Source of Conflict or Cooperation in the Middle East?”, 1998 , 6, available at: .



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of any surplus water running off in one month, from the flow in the following month. Thus, where the flow of the concerned river exceeded the minimum flow during one month, the upper riparian states would be free to reduce the river’s flow below the agreed minimum during the following month. This may entice upper riparian states to reduce a river’s flow below the agreed minimum after a period of high flows, to for example secure additional water supply in water scarce periods. Hence, if one was to allow an upper riparian state to compensate for low flows beforehand, the minimum flow agreed upon may in practice become the total share of the lower riparian states rather than a minimum requirement. This, however, would compromise, the purpose of the minimum flow agreement—to stipulate a minimum flow that the river’s flow may only fall short of in extraordinary situations to prevent or reduce harm caused to the lower riparian states. Consequently Turkey did infringe its obligation under article 6 of the SyrianTurkish Protocol on Economic Cooperation and thus international law when it did not make up for January’s low flows in February 1990. The distribution of the Euphrates’ flow between Iraq and Syria is governed by the Iraqi-Syrian Communiqué on the Distribution of the Euphrates’ Water.68 As per article 1 of the Communiqué, Syria is required to let 58 % of the Euphrates’ flow passing the Syrian-Turkish border run off into Iraq. While Iraq contested the reduction of the Euphrates flow during the initial impounding of the Tabqa Dam in the 1970s, the Iraqi-Syrian Communiqué on the Distribution of the Euphrates’ Water is not relevant for this incident, since it was not concluded until 1989. During the initial impounding of the Atatürk Dam, however, Iraq was entitled to 58 % of the reduced flow that passed the Syrian-Turkish border. However, there is no data on the Euphrates’ flow at the Iraqi-Syrian border and Iraq did not contest that Syria withdrew more than 42 % of the Euphrates’ flow it received at the Syrian-Turkish border. Thus it seems likely that Syria did comply with the Communiqué on the Distribution of the Euphrates’ Water during the initial impounding of the Atatürk Dam. A definite statement can, however, not be made. bb. Distribution of the Tigris’ Flow The allocation of the Tigris’ flow is even less regulated by treaty provision. The only provisions on the quantitative distribution of the Tigris’ flow are bilateral agreements on water quantities that Syria may withdraw using a pumping station on the Tigris. Pursuant to article 3 (1) and (4) Iraqi-Syria Agreement on a Syrian Pumping Station on the Tigris and article 4 (1) Syrian-Turkish Memorandum of Understanding on a Pumping Station on the Tigris, Syria may withdraw 1.25 km3 of water from the Tigris per year. Since this water quota is rather small compared to the average yearly flow of the Tigris at the location of the pumping station, it is unlikely that the Turkish dams on the Tigris will conflict with these provisions. 68 Joint Communiqué on the Preliminary Distribution of the Euphrates’s Water between the Arab Republic of Syria and the Republic of Iraq, supra note 60.

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b. International Customary Law Turkey repeatedly alleged that international customary law is not or not fully applicable in respect to the non-navigational use of Euphrates and Tigris on the ground of their being transboundary rather than international rivers. According to Turkey only the use of those rivers that form the border between states (international rivers) is subject to international customary law.69 Rivers flowing through different states successively—entitled transboundary rivers by Turkey— on the other hand are not subject to international customary law. Their use may only be regulated by treaties. In absence of such treaties the use of transboundary rivers remains an internal matter of each riparian state—thus each riparian state may in its territory utilize a transboundary river as it sees fit without regard to the interests of co-riparian states.70 International law, however, does not differentiate between transboundary and international rivers in regard to non-navigational use of freshwater, but rather uses both terms synonymously. Consequently, the non-navigational use of Euphrates and Tigris is governed by international customary law as far as it is binding for their riparian states. Furthermore, it should be noted that some statements by Turkish authorities suggest that Turkey may have in part withdrawn from this position. For instance, in a position paper on the utilization of Euphrates and Tigris, the Turkish Ministry of Foreign Affairs stated that the obligation not to cause significant harm (‘noharm rule’) and the doctrine of equitable and reasonable utilization (‘doctrine of equitable utilization’) are established as international customary law. Still, the Ministry does not explicitly state that these apply to Euphrates and Tigris. Yet, since the Ministry mentions both provisions in a position paper on the utilization of Euphrates and Tigris it is likely that the Ministry considers them to be binding for the utilization of Euphrates and Tigris. Assuming this, Turkey would only be opposing the obligations of prior notification and consultation as binding obligations of international customary law in regard to non-navigational uses of freshwater.71 The central material provisions of international customary law applicable to the non-navigational use of freshwater are the no-harm rule and the doctrine of equitable utilization. Both provisions are commonly considered as originating from the theory of limited territorial sovereignty. According to this theory, a riparian state has territorial sovereignty over the part of an international freshwater 69 Turkish Ministry of Foreign Affairs, Background Paper on International Law Issues Con­ cerning the Euphrates/Tigris Watercourse System, 1990, 3. 70 Turkish Ministry of Foreign Affairs, supra note 39, at 106. Also cf. Turkish Ministry of Foreign Affairs, supra note 67. 71  Cf. Turkish Ministry of Foreign Affairs, supra note 39, at 106. Also cf. Turkish Ministry of Foreign Affairs, supra note 67. For a detailed overview of this issue, see N. Bremer, The Regulation of the Non-Navigational Use of the Euphrates and Tigris River System, forthcoming (on file with the author), part 1, E., II., 1.



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system that is located on its territory, but is limited in exercising its sovereign right to utilize said freshwater system insofar as the riparian state has to respect the right of the other riparian states to utilize the system.72 Like the theory of limited state sovereignty, both the no-harm rule and the doctrine of equitable utilization regulate the non-navigational use of freshwater based on state borders. Since international freshwater systems are, however, interdependent hydrological systems such an approach is not the most effective. The theory of community of interests seeks to offer a solution to the inability of the theory of limited sovereignty to reflect the interdependent character of freshwater systems. This theory considers international freshwater systems as one legal entity regardless of state borders. Consequently the right to utilize the system is considered to derive not from each individual riparian state, but rather from the collective right of all riparian states.73 States, however, have been reluctant to implement such a collective approach. Hence, the concept of community of interest remains a non-binding theory rather than a rule or principle binding as international customary law.74 Another concept increasingly recognized by states is that of sustainable development. Pursuant to this concept natural resources should only be used insofar that they and their usability is preserved.75 In the case of freshwater, the concept of sustainable development would require that the amount of water withdrawn from a freshwater system does not exceed the amount it receives through the hydrological cycle and that its water is not polluted to an extent that cannot be regenerated by the hydrological cycle. While the concept of sustainable development has been included in a growing number of treaties and declarations, it is generally considered an objective rather than a legally binding obligation.76

72 L. Caflisch, “Règles Générales du Droit des Cours d’Eau Internationaux”, RdC 219 (1989), 9 (55); J. E. Cohen, “International Law and the Water Politics of the Euphrates”, NYU J. Int’l L. & Pol. 24 (1991), 503 (524); Salman, supra note 53, at 627; S. C. McCaffrey, The Law of International Watercourses, 2007, 135. 73 Caflisch, supra note 72, at 59; Cohen, supra note 72, at 525; F. J. Berber, Die Rechts­ quellen des internationalen Wassernutzungsrechts, 1955, 15; McCaffrey, supra note 72, at 147 et seq. 74 Cohen, supra note 72, at 525; Rahaman, supra note 53, at 210; Salman, supra note 53, at 627 et seq.; J. G. Lammers, Pollution of International Watercourses, 1984, 561; McCaffrey, supra note 72, at 168. 75 World Commission on Environment and Development, “Report of the World Commis­ sion on Environment and Development, Our Common Future”, Annex to the Report of the UN GA on the work of its forty-second session, UN Doc. A/42/427 of 4 August 1987, chapter 2, para. 12, 56; R. Bartholomäi, Sustainable Development und Völkerrecht, Nach­ haltige Entwicklung und intergenerative Gerechtigkeit in der Staatenpraxis, 1997, 192; M. Fitzmaurice, Contemporary Issues in International Environmental Law, 2009, 96. 76 See e.g. principle 1 para. 1 Bahrain Environmental Code of Conduct for the Middle East of 1994, available at: ; art. 4.3 Agreement between the governments of the Republic of Angola, the

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Hence the concept of sustainable development cannot be understood to be binding as international customary law yet. aa. The Obligation not to Cause Significant Harm (No-harm Rule) The no-harm rule prohibits states to use their territory or allow for their territory to be used in a way that causes harm to or in the territory of another state.77 However, it does not require states to refrain from any activity that may cause harm to or in other states. First of all, pursuant to state practice and opinio iuris the no-harm rule only prohibits activities that are likely to cause significant transboundary harm.78 Also, international jurisdiction79 and doctrine80 support this interpretation of the relevant state practice and opinio iuris. Still, there is no

Republic of Botswana, and the Republic of Namibia on the establishment of a perma­ nent Okavango River Basin Water Commission of 1994, in extracts published in: FAO Legislative Study 61 (1997), 142 et seq.; Principle 8 Rio Declaration on Environment and Development of 1992, ILM 31 (1992), 874 et seq.; art. 3 (4) Revised Protocol on Shared Watercourse Systems in the Southern African Development Community Region of 2000, ILM 40 (2001), 321 et seq. 77 Trail Smelter Arbitration (United States v. Canada), Award, 16 April 1938 and 11 March 1941, RIAA 3, 1905–1982; A. Epiney, “Das «Verbot erheblicher grenzüberschreitender Umweltbeeinträchtigungen», Relikt oder konkretisierungsfähige Grundnorm?”, ArchVR 33 (1995), 309 (317 et seq.); Rahaman, supra note 53, at 211; McCaffrey, supra note 72, at 406 et seq. 78 See e.g. art. 3 (1) Agreement between the Federal Republic of Germany, the Republic of Austria and the Swiss Confederation Regulating the Withdrawal of Water From Lake Constance (1966), UNTS Vol. 620 No. 8956; art. 6 Convention on Cooperation for the Protection and Sustainable Use of the Danube River (1994), BGBl. 1996 Part II No. 25, 875 et seq.; art. 2 (a) United Nations Framework Convention on Climate Change (1992), ILM 31 (1992), 849 et seq.; art. 5 Framework for General Co-operation Between the Arab Republic of Egypt and Ethiopia signed at Cairo (1993), FAO Legislative Studies 61 (1997), 159 et seq.; art. IV (10) The Indus Water Treaty (1960), UNTS Vol. 419 No. 6032; arts 6 (2) and (4) (b) Treaty of Peace Between the State of Israel and the Hashemite Kingdom of Jordan (1994), ILM 34 (1995), 43 et seq.; art. 7 Agreement on the Cooperation for Sustainable Development of the Mekong River Basin (1995), ILM 34 (1995), 864 et seq. For examples of states explicitly declaring they regard the no-harm rule as binding international customary law governing non-navigational uses of freshwater see “The Law of Non-Navigational Uses of International Watercourses: Replies of Governments to the Commission’s Questionnaire”, UN Doc. A/CN.4/294 of 1 April 1976, YILC 1976 Vol. II/1, 147 (153 et seq., 156); “The Law of the Non-Navigational Uses of International Watercourses—Comments and Observations Received from Governments”, UN Doc. A/CN.4/447 and Add. 1–3 of 3 March, 15 April, 18 May and 14 June 1993, YILC 1993 Vol. II/1, 145 (148, 153 et seq., 157 et seq., 161, 164 et seq., 170, 173, 175). 79 Trail Smelter Arbitration, supra note 76, at 1965; Lac Lanoux (France v. Spain), Award, 16 November 1957, RIAA 281 Vol. XII, 101 (122 et seq.); Constitutional Court of the Ger­ man Reich, Danube Case Judgment (1927), RGZ 116 (1927), annex No. 2, 18 (30); US Supreme Court, Missouri v. Illinois, Judgment (1906), U.S. 200 (1906), 496 (521). 80 Epiney, supra note 77, at 334 et seq.; U. Beyerlin / T. Marauhn, International Environ­ mental Law, 2011, 44; McCaffrey, supra note 72, at 409.



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universal standard defining what is ‘significant’ and how high the possibility of an activity causing such significant harm has to be to be ‘likely’ within the meaning of the no-harm rule. Furthermore the no-harm rule requires states to act in due diligence. Thus, under the no-harm rule states are not generally responsible for any significant harm caused, but rather are required to take all reasonable measures not to cause significant harm. What measures are required, again, is not defined by a universal standard, but rather has to be evaluated taking into account the circumstances of each individual situation.81 To determine what measures a state has to take to prevent significant transboundary harm from being caused, one has to assess, for example, the state of the environment affected, the likelihood of harm being caused, the substantiality of such harm, and the economic and technical capacity of the acting state to implement precautionary measures. Thus in respect to non-navigational uses of freshwater, the no-harm rule prohibits states from using or allowing the use of their share of an international freshwater system in a way that is likely to cause significant harm to or in other riparian states unless the state took all reasonable measures to prevent significant transboundary harm from being caused. Such harm could be caused by a massive reduction of the freshwater system’s flow, a change in its flow regime or pollution of its water. Since both Iraq and Syria are bound by the UN Watercourse Convention, they are bound to the no-harm rule as provided for in article 7 (1) UN Watercourse Convention.82 Although Turkey did not ratify the UN Watercourse Convention or declare in any other way that it would be bound by it, the no-harm rule is still binding for Turkey, as Turkey not only failed to persistently object to the no-harm rule but accepted it as binding international customary law.83 Consequently, the no-harm rule is applicable to dams on Euphrates and Tigris.

81  Beyerlin / Marauhn, supra note 80, at 42; M. Fitzmaurice, “International Responsibil­ ity and Liability”, in: D. Bodansky et al. (eds), The Oxford Handbook of International Environmental Law, 2007, 1014; G. Handl, “Transboundary Impacts”, in: ibid., at 538; A. Amaral Dergint, Nutzung von Binnengewässern und völkerrechtliche Haftung für gren­ züberschreitende Umweltschäden, 2006, 226 et seq.; Lammers, supra note 74, at 348 et seq.; McCaffrey, supra note 72, at 410 et seq. 82 UN Watercourse Convention (1997), supra note 50. 83 While Turkey voted against the adoption of the ILC Draft Articles on Interna­ tional Watercourses as the UN Watercourse Convention through UN GA Resolution A/RES/51/229 of 8 July 1997, Turkey explicitly did not object to the no-harm rule as pro­ vided for in art. 7 (1) UN Watercourse Convention, but merely contested that the Con­ vention did not clearly address the no-harm rule’s relation to the doctrine of equitable utilization, Report of the fifty-first Session of the UN GA, UN Doc. A/51/PV.99 of 21 May 1997, 5, 8. Furthermore the Turkish Ministry of Foreign Affairs and the Turkish General Directorate of State Hydraulic Works (Turk. ‘Devlet Su Işleri’ or DSI) explicitly accepted the no-harm rule as binding international customary law; Turkish Ministry of Foreign Affairs, supra note 67, at 8; also cf. the Report by the Turkish Foreign Ministry entitled

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Considering that the average flow of the Euphrates during a dry year is about 800 m3/s at the Syrian-Turkish border,84 it could well be argued that the initial impounding of the Atatürk Dam’s reservoir infringed the no-harm rule when the Euphrates’ flow was reduced to 65 m3/s in the first half of January and 50 m3/s in the first half of February 1990.85 However, since data on how much water is withdrawn to supply the irrigation schemes connected to the Atatürk Dam is not openly available, this contribution cannot make any statement as to whether the operation of the Atatürk Dam infringes the no-harm rule in regard to its impact on the quantity of the Euphrates’s flow. As for the Turkish developments on the Euphrates as a whole, they most definitely infringe the no-harm rule at least due to their tremendous impact on the Euphrates’ salinity. The GAP Euphrates developments cause the salt concentration in the Euphrates’ water to rise from 275 ppm in the headwaters of the river to 1,040 ppm at the Syrian-Turkish border. Consequently the Euphrates’ water is not fit for human consumption according to WHO standards when the river enters Syria.86 Since human consumption is an essential application of freshwater and the Euphrates alone makes up about half of the Syrian freshwater resources and is a significant source of freshwater for Iraq as well,87 the increase in salinity of the Euphrates’ water occurring in Turkey has to be regarded as a significant harm to the lower riparian states. The salinization caused by the Syrian developments such as the irrigation schemes connected to the Tabqa Dam is only minor. On the whole stretch that the Euphrates passes through Syria its salinity only rises by about 60 ppm to about 1,100 ppm at the Iraqi-Syrian border.88 While the Euphrates water still remains unfit for human consumption at the Iraqi-Syrian border, the minor rise in ­salinity .

“Turkey’s Policy on Water Issues”, available at: ; DSI, Turkey Water Report 2009, 2009, 48. 84 Cf. Altinbilek, supra note 2, at 27; Beaumont, supra note 4, at 179; Kliot, supra note 4, at 135, 141. 85 For a detailed assessment of the compliance of the initial impounding of the Atatürk Dam’s reservoir, see Bremer, supra note 71, at Part 2, B., II., 5., a), (5). 86 Water with a salinity of 300 ppm is regarded as drinking water with excellent quality; water with a salinity of 300 to 600 ppm is regarded as having good drinking water quality; and water with a salinity of more than 1,000 ppm cannot be used as drinking water; WHO, supra note 7, at 228; WHO, supra note 15, at 1. 87 Cf. FAO, supra note 2, at. 342 et seq. 88 Data from 2001 according to Iraqi Ministry of Irrigation, “Findings of the Study on the Development in Salinity of the Rivers Euphrates and Tigris between 1997 and 2001”, conducted by the Iraqi Ministry of Irrigation, issued in 2003. More recent data is not available. Still, hydrologists assume that the salinity of the Euphrates in Iraq rose by about 100 ppm per year since 2001; Rahi / Halihan, supra note 12, at 29 et seq. How­ ever, since this assumption is not confirmed by data, this study is based on the data collected in 2001.



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caused by Syrian developments is not substantial enough to be considered significant transboundary harm within the meaning of the no-harm rule. In Iraq, however, the salinity of the Euphrates rises substantially again and reaches its peak of 4,000 ppm at Nassiriah (ca. 100 km downstream from Samawah). Thus—according to WHO standards—the water of the Euphrates cannot be used for human consumption or agricultural purposes downstream from Nassiriah.89 While the salinity of the Euphrates is already considerably high when the river enters Iraq, the rise occurring in Iraq is still substantial enough to be regarded as significant harm within the meaning of the no-harm rule. Particularly, since due to the salinization occurring in Iraq the Euphrates’ water is unfit for its application for agricultural purposes. In addition, the enormous effect large dams have on a river’s flow regime may cause significant transboundary harm. For instance, the Ilisu Dam is expected to substantially alter the flow regime of the Tigris. While the Tigris’ natural flow at the location of the Ilisu Dam varies between a low of 115 m3/s in September to a high of 1,400 m3/s in April, during a year with medium flow, once the Ilisu Dam is operational the flow is expected to vary from a low of 265 m3/s in September to a peak of 665 m3/s in April.90 There is no data on the fluctuations caused in the flow of Euphrates and Tigris by Iraqi dams such as the Mosul Dam or Syrian dams such as the Tabqa Dam. Yet, since the reservoirs of these dams also serve to supply HEPPs, it is to be expected that they have a similar effect on the flow regime of the rivers.91 While this balancing of the Euphrates’ and the Tigris’ flow regime may enhance the use of the river, it will adversely affect the biosphere and the geomorphic features of the river. Whether these effects will be substantial enough to be regarded as significant transboundary harm, however, cannot be assessed so far due to a lack of available data. bb. The Doctrine of Equitable and Reasonable Utilization Like the no-harm rule, the doctrine of equitable utilization considers states to have exclusive territorial sovereignty over the part of an international freshwater system that is located on their territory. When utilizing an international freshwater system the doctrine, however, requires the riparian states to equitably

89 Data from 2001 according to Iraqi Ministry of Irrigation, “Findings of the Study on the Development in Salinity of the Rivers Euphrates and Tigris between 1997 and 2001”, conducted by the Iraqi Ministry of Irrigation, issued in 2003. More recent data is not available. Still, hydrologists assume that the salinity of the Euphrates in Iraq rose by about 100 ppm per year since 2001; Rahi / Halihan, supra note 12, at 29 et seq. How­ ever, since this assumption is not confirmed by data, this study is based on the data collected in 2001. 90 Data according to Ilisu Engineers Group, supra note 29, at 40–42. 91  Close to all dams operated on Euphrates and Tigris serve at least among other uses as a reservoir for irrigation schemes; FAO, supra note 2, at 69.

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and reasonably consider the interest of the other riparian states in the system. It should, however, be pointed out that the doctrine does not require an equal appropriation. Instead, what is reasonable and equitable in this sense is to be determined individually for each case, based on a comprehensive assessment of all factors impacting the utilization of the international freshwater system.92 The doctrine of equitable utilization is widely recognized as legally binding by states.93 Furthermore, an assessment of case law94 and the doctrine95 supports the assumption that it is binding as international customary law. For Iraq and Syria, the doctrine of equitable utilization is binding as per articles 5 and 6 of the UN Watercourse Convention96 and, for Turkey, since it accepted the doctrine as binding international customary law.97 Since both the no-harm rule and the doctrine of equitable utilization require states to consider the interests of co-riparian states when utilizing an international freshwater system but put different standards to such consideration, there

92 See e.g. Epiney, supra note 30, at 28 et seq.; Rahaman, supra note 53, at 210 et seq.; C. Behrmann, Das Prinzip der angemessenen und vernünftigen Nutzung und Teilhabe nach der VN-Wasserkonvention, 2008, 63; P. Birnie et al., International Law and the Envi­ ronment, 2009, 549 et seq.; McCaffrey, supra note 72, at 405. 93 For an overview of treaties including the doctrine of equitable utilisation see UN ILC Special Rapporteur S. C. McCaffrey, “Second Report on the Law of the Non-navigational Uses of International Watercourses”, UN Doc. A/CN.4/399 of 21 May 1986, YILC 1986 Vol. II/1, 87 (103 et seq., 134 et seq.); UN ILC Special Rapporteur S. Schwebel, “Third Report on the Law of the Non-Navigational Uses of International Watercourses”, UN Doc. A/CN.4/348 of 11 December 1981, YILC 1982 Vol. II/1, 65 (76 et seq.). For exam­ ples of states explicitly declaring to believe the doctrine of equitable utilization to be binding international customary law, see “The Law of the Non-Navigational Uses of International Watercourses—Comments and Observations Received from Govern­ ments”, UN Doc. A/CN.4/447 of 3 March 1993 and Add. 1 of 15 April 1993, Add. 2 of 18 May 1993, and Add. 3 of 14 June 1993, YILC 1993 Vol. II/1, 152, 154, 157, 163 et seq., 170, 172, 174. 94 See e.g. Lac Lanoux (France v. Spain), supra note 78, at 140; Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, 25 September 1997, ICJ Reports (1997), 7, para. 85. 95 See e.g. Epiney, supra note 30, at 28 et seq.; Y. Inan, “The Law of International Water Courses and the Middle East”, Turk. MFA J. Int’l Aff. V (2000), 173 (181); Rahaman, supra note 53, at 210 et seq.; Behrmann, supra note 92, at 63, 66; Birnie et al., supra note 92, at 549 et seq.; McCaffrey, supra note 72, at 386 et seq., 405. 96 UN Watercourse Convention supra note 50. 97 Turkey did not reject the UN Watercourse Convention due to its inclusion of the doc­ trine of equitable utilization; rather, Turkey stated that the doctrine of equitable uti­ lization should have been given a more predominant role within the Convention, see Report of the fifty-first Session of the UN GA 99th plenary meeting, UN Doc. A/51/PV.99 of 21 May 1997, 5. In addition, the Turkish Ministry of Foreign Affairs explicitly stated that the doctrine was binding international customary law; Turkish Ministry of Foreign Affairs, supra note 67, at 8; also cf. the Report by the Turkish Foreign Ministry, supra note 83.



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is the potential of a conflict of norms.98 The relationship between the doctrine of equitable utilization and the no-harm rule was one of the main reasons Turkey opposed the adoption of the UN Watercourse Convention per UN GA Resolution A/RES/51/229. Turkey argued that since the UN Watercourse Convention did not state that the doctrine of equitable utilization had precedence over the no-harm rule the Convention’s text was “liable to create confusion as far as implementation of the whole Convention is concerned”.99 However, the relationship between the no-harm rule and the doctrine of equitable utilization is not yet defined by universally binding international law or a specific agreement between the Euphrates Tigris riparian states. Consequently the massive reduction of the Euphrates due to the initial impounding of the Atatürk Dam’s reservoir in early 1990 and the substantial rise in salinity of the Euphrates’ water caused by Turkish developments of the river do not infringe the doctrine of equitable utilization merely because they infringe the no-harm rule. Still, considering the substantial impact both issues had and still have on the utilization of the Euphrates by its lower riparian states, it could well be regarded as unreasonable and inequitable. It would thus be an infringement of the doctrine of equitable utilization. The same is true for the salinization of the Euphrates occurring in Iraq. Since the rise is so substantial that the water of the Euphrates cannot be used for agricultural purposes, it could well be regarded as an infringement of the doctrine of equitable utilization. The same is true for the changes in flow regime that are expected to be caused by the Ilisu Dam and Mosul Dam on the Tigris and the Tabqa Dam on the Euphrates. Yet since there is no data assessment of the potential impact that these changes in the Euphrates’ and Tigris’ flow regime will have on the rivers and their usability, no statement can be made as to whether these dams would constitute an unreasonable and inequitable utilization of the Euphrates and Tigris and, thus, would infringe the doctrine of equitable utilization. 2. Procedural Regulations Procedural regulations, i.e. obligations to exchange information and duties to consult, provide a framework for the implementation of the material provisions. Moreover, they enable cooperation between riparian states and thus help evade disputes over the non-navigational use of an international freshwater system. 98 Specifically, a particular development may unreasonably impact the use of a freshwater system in another riparian state while not being so invasive to be considered as causing significant transboundary harm. On the other hand, where the riparian states’ use of an international freshwater system is already highly developed, any additional withdrawal of water in one state may significantly harm the hydrological developments in another state while the amount of water withdrawn itself is still in line with a reasonable and equitable use of the system. 99 UN Doc. A/51/PV.99 of 21 May 1997, supra note 97.

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Although such provisions are of utmost importance to ensure an efficient utilization and distribution of water in an international freshwater system there are few treaty provisions that provide for the exchange of hydrological data and the consultation on hydrologic developments between the Euphrates-Tigris riparian states. a. Treaty Provisions There are different treaty provisions binding to the Euphrates-Tigris riparian states that require them to exchange freshwater related data. For instance, article 3 (3) of the 1946 Iraqi-Turkish Euphrates-Tigris Protocol requires that Turkey continuously communicate to Iraq the water levels measured on Euphrates and Tigris in Turkey.100 Furthermore Turkey concluded bilateral memoranda of understanding both with Iraq and with Syria that provide for the establishment of a comprehensive joint database on freshwater related data.101 Since dams and the hydrological developments they supply have considerable effect on the quantity of a freshwater system’s flow as well as its flow regime and water quality, the impact of dams and their subsequent developments will affect the data to be exchanged pursuant to these obligations. However, since they do not specifically apply to dams, this study will not discuss in detail whether the Euphrates-Tigris riparian states comply with them. There are, however, treaty provisions that specifically address obligations to exchange information in regard to specific developments. Thus, pursuant to article 5 of the Iraqi-Turkish Euphrates-Tigris Protocol Turkey shall keep Iraq informed of her plans for the construction of conservation works on either of the two rivers [Euphrates and Tigris] and their tributaries.102

As dams store water and are thus considered conservation works within the meaning of article 5, Turkey is obliged to inform Iraq with regard to its plans to construct dams on Euphrates and Tigris. Specifically with regard to the Ilisu Dam it was unclear whether Turkey had done so. However, considering the extensive 100 Treaty of Friendship and Neighbourly Relations, Annex No. 1, Protocol Relative to the Regulation of the Waters of the Tigris and Euphrates and of their Tributaries, annexed to the Treaty of Friendship and Neighbourly Relations between Iraq and Turkey (1946), UNTS Vol. 37 No. 580. 101  Art. 2 (f ) Memorandum of Understanding between the Ministry of Environment and Forestry of the Republic of Turkey and the Ministry of Water Resources of the Repub­ lic of Iraq on Water (2009), unofficial English translation (on file with the author); art. 2 (m) Memorandum of Understanding between the Government of the Republic of Turkey and the Government of the Syrian Arab Republic in the Field of Efficient Utilization of Water Resources and Combating of Drought (2009), concluded in Ara­ bic, English and Turkish (on file with the author). 102 UN Doc. A/51/PV.99 of 21 May 1997, supra note 97.



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information on which the Iraqi Ministry of Water Resources based its position paper on the Ilisu Dam issued in 2006, it seems fair to assume that Turkey did in fact provide Iraq with detailed information on the Ilisu Dam at least prior to when the construction of the dam was recommenced in 2010.103 Since Iraq and Syria are bound to the UN Watercourse Convention104 they are obligated to notify each other prior to implementing or permitting the implementation of measures that may have significant adverse effects on Euphrates and Tigris pursuant to article 12 UN Watercourse Convention. Moreover, as per the procedure described in articles 13 et seq. UN Watercourse Convention, they are required to consult on the basis of the data transferred during such notification. However, the procedure described in articles 13 et seq. UN Watercourse Convention does not require the notifying state to consider comments made by the notified state. However, due to a lack of available information no statement can be made as to whether Iraq and Syria complied with these obligations. In relations between Syria and Turkey, treaty provisions only require Syria to notify Turkey with respect to water collection volumes planned in connection with a Syrian pumping station on the Tigris.105 b. International Customary Law International customary law provides for a number of procedural provisions with regard to the utilization of watercourses by different states. These are the obligation to exchange freshwater related information on a regular basis, the obligation to prior notification and the obligation to prior consultation.106 The most general of these, the obligation to exchange freshwater related information on a regular basis, requires the riparian states of an international freshwater system to regularly exchange data on all factors possibly impacting the use of the system. This includes data on the system’s flow, precipitation and other meteorological data, information on the operation of existing and new plans to implement freshwater developments, water pollution, etc.107 While this obligation is relevant with regard to dams, since states will have to include information on the operation of dams and plans to construct new dams

103 Iraqi Ministry of Water Resources, supra note 19, at 6. 104 See part III. Dams in International Law. 105 Art. 3 Syrian-Turkish Memorandum of Understanding on a Pumping Station on the Tigris, supra note 5. 106 While the obligation to perform transboundary environmental impact assessment prior to the implementation of certain measures is often discussed as a procedural regulation, this study will discuss it in a separate section due to its relevance for the regulation of dams. 107 Cf. Epiney, supra note 30, at 10 et seq.; A. Kiss / D. Shelton, International Environmental Law, 2004, 198; McCaffrey, supra note 72, at 464 et seq., 472 et seq., 478.

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when they exchange information due to the substantial impact dams have on freshwater systems, the other two obligations relate specifically to dams. Therefore they shall be discussed in more detail here. aa. Obligation to Prior Notification Pursuant to the obligation to prior notification as binding international customary law, states are required to notify each other with regard to measures that are likely to have a significant impact on an international freshwater system prior to implementing or permitting the implementation of these measures.108 Since article 12 UN Watercourse Convention provides for the same obligation, Iraq and Syria are bound to the obligation to prior notification as accepted as international customary law. Even though Turkey specifically objected to Part III of the UN Watercourse Convention (articles 12–19),109 Turkey is bound to the obligation to prior notification. While Turkey did in fact object to the binding effect of the obligation to prior notification on more than one occasion,110 Turkey did not do so consistently, but rather accepted that there was a binding obligation of states to notify each other prior to implementing or permitting the implementation of certain measures on other occasions.111 Thus Turkey did not persistently object to the obligation to prior notification and did not exclude itself from its binding force. Syria alleged that Turkey constructed dams on Euphrates and Tigris without notifying Iraq and Syria in accordance with paragraph 4 Damascus Declaration.112 Turkey, however, claims to have complied with its obligation to notify.113 Nevertheless, at least prior to when construction on the Ilisu Dam in Turkey was taken up for a second time, Turkey most likely notified Iraq and probably also Syria of its plans to construct the dam.114

108 See e.g. Lac Lanoux (France v. Spain), supra note 79, at 139 et seq.; Caflisch, supra note 72, at 195; Beyerlin / Marauhn, supra note 80, at 228; Birnie et al., supra note 92, at 565 et seq.; Kiss / Shelton, supra note 107, at 197; McCaffrey, supra note 72, at 473. 109 UN Doc. A/51/PV.99 of 21 May 1997, supra note 97, at 4. 110  See e.g. DSI, supra note 83, at 50. 111  See e.g. Turkish Ministry of Foreign Affairs, supra note 67, at 6. Also cf. the ministerial meeting held between Iraq, Syria and Turkey in Turkey in March 2007 during which the Turkish side agreed to provide Iraq and Syria with technical data on the Ilisu Dam; Minutes of Meeting between the Iraqi Minister of Water Resources, Dr. Abdel Latif Jamal Rasheed, the Syrian Minister of Irrigation, Eng Nadir al Buni, and the Turkish Minister of Energy and Natural Resources, Dr. Mohamed Hilmi Gülar, held in Turkey on 22 March 2007 (English translation on file with the author). 112  Protocol on Matters pertaining to Economic Cooperation between the Syrian Arab Republic and the Republic of Turkey of 1987, supra note 38. 113  See e.g. Turkish Ministry of Foreign Affairs, supra note 67, at 6. 114  Considering the extensive information the Iraqi Ministry of Water Resources pre­ sented in its position paper on the Ilisu Dam issued in 2006 (cf. Iraqi Ministry of Water Resources, supra note 19, at 6), Turkey most likely informed Iraq in regard to the Ilisu



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There is no information available on whether Iraq and Syria notified the coriparian states with regard to dams they constructed on Euphrates and Tigris prior to their implementation. Thus no definite statement can be made on whether Iraq and Syria complied with their obligation to prior notification deriving from the UN Watercourse Convention and international customary law. bb. Obligation to Prior Consultation Pursuant to the obligation to prior consultation as binding international customary law, a riparian state seeking to implement or allow the implementation of a measure that is likely to have a significant impact on an international freshwater system, is required to consult the other riparian states based on the information supplied in compliance with the obligation to prior notification. Nevertheless, the notifying state is ultimately free to decide whether to implement or allow the implementation of the proposed measure without regard to the comments made by the other riparian states.115 Iraq and Syria are bound to the obligation to prior consultation by articles 13 et seq. UN Watercourse Convention. Turkey, on the other hand, objected to this obligation on different occasions.116 However, Turkey did so because it believed the obligation to prior consultation to impose a requirement to obtain the consent of all riparian states of an international freshwater system before implementing or permitting the implementation of a proposed measure. This becomes particularly clear in Turkey’s critique of the UN Watercourse Convention. While Turkey rejected Part III of the UN Watercourse Convention, it explicitly excluded article 11 UN Watercourse Convention when doing so.117 Article 11 UN Watercourse Convention states that “watercourse States shall (. . .) consult each other (. . .) on the possible effects of planned measures on the condition of an international watercourse”.118 Thus Turkey did object to the specific procedure of consultation provided for in article 13 et seq. UN Watercourse Convention

Dam. While the author was not able to obtain official information of whether Turkey also notified Syria in regard to the Ilisu Dam it seems unlikely that Turkey would notify Iraq but not Syria. 115 See e.g. Lac Lanoux (France v. Spain), supra note 79, at 128; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgement, 20 April 2010, ICJ Reports (2010) 14, paras 143, 145; S. C. McCaffrey, “The Law of the Non-Navigational Uses of International Watercourses”, Third Report on the Law of the Non-Navigational Uses of International Watercourses, by Stephen C. McCaffrey, Special Rapporteur, UN Doc. A/CN.4/406 and Add. 1 and 2 of 30 March, 6 and 8 April 1987, YILC 1987 Vol. II/1, 15 (38 et seq.); Birnie et al., supra note 92, at 565 et seq.; Kiss / Shelton, supra note 107, at 200 et seq. 116 For instance Turkey did so during the discussion preceding the adaptation of the ILC Draft Articles on International Watercourses as UN Watercourse Convention by the UN GA; UN Doc. A/51/PV.99 of 21 May 1997, supra note 97. Also cf. Turkish Ministry of Foreign Affairs, supra note 67, at 8. 117 UN Doc. A/51/PV.99 of 21 May 1997, supra note 97, at 4. 118 See part III. Dams in International Law.

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but not to the obligation to prior consultation in general. Furthermore, Turkey expressed the will to consult with Iraq and Syria on the Ilisu Dam in a ministerial meeting held between the three states in Turkey in March 2007.119 Thus, Turkey is also bound by the obligation to prior consultation. There is little information available on whether the Euphrates-Tigris riparian states discussed their plans to develop Euphrates and Tigris; however, it seems that they are willing to do so. Especially of late, they have been engaging more in discussions on the non-navigational use of Euphrates and Tigris as is illustrated by the large number of memoranda of understanding concerning the utilization of freshwater recently concluded.120 3. Environmental Impact Assessment An environmental impact assessment (EIA) is a rather recent regulatory measure. Current developments in international law have led to the evolution of an obligation of international customary law that requires states to conduct a transboundary EIA with respect to measures that are likely to have considerable transboundary impact. In particular, the decision of the International Court of Justice in the ‘Pulp Mill Case’ of 2010 is considered to be a key part of this development.121 International customary law, however, does not stipulate a specific content or procedure of EIA. It merely obligates a state under whose jurisdiction the measure subject to the EIA is proposed to notify the possibly affected states of the EIA’s findings and to consult with them before deciding on the environmental viability of the proposed measure. The affected population of foreign states, however, is not entitled to participate in the EIA. Whether international customary law requires continuous monitoring of measures that required an EIA cannot be finally answered.122 Since the development to international customary law in regard to EIA is rather recent, the only dam for which these provisions are relevant is the Ilisu Dam. EIAs were in fact conducted on the Ilisu Dam in 2001 and 2005. These also inter alia took the transboundary effects of the dam into account.123 Whether the assessments of the Ilisu Dam’s transboundary effects were correct and sufficiently

119  Minutes of Meeting, supra note 111. 120 S. Waslekar, The Blue Peace, Rethinking the Middle East Water, 2011, 30 et seq. 121  Pulp Mills on the River Uruguay (Argentina v. Uruguay), supra note 115. 122 See e.g. Pulp Mills on the River Uruguay (Argentina v. Uruguay), supra note 115, at paras 120, 204 et seq., 215 et seq.; A. Epiney, “Environmental Impact Assessment”, in: Wolfrum, supra note 49, para 47; Beyerlin / Marauhn, supra note 80, at 233 et seq.; Birnie et al., supra note 92; Kiss / Shelton, supra note 107, at 236 et seq.; P. Sands / J. Peel, Principles of International Environmental Law, 2012, 601 et seq. 123 See e.g. Ilisu Engineers Group, supra note 29, at 4–15 et seq., 4–36, 4–47; Ilisu Environ­ mental Group, Ilisu Dam and HEPP Environmental Impact Assessment Report, Update 31 July 2005, (on file with the author) 4–19, 4–25 et seq., 4–30.



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comprehensive is, however, disputed.124 Furthermore, the present author was not able to obtain an official statement from Iraq, Syria or Turkey on whether the findings of the EIAs were transmitted to Iraq and Syria. Thus, this contribution cannot make a statement as to whether Turkey complied with international law regarding EIA with respect to the Ilisu Dam. III. Conclusion In conclusion, it can be said that while the non-navigational use of Euphrates and Tigris is governed only rudimentarily through treaty provisions, there are considerable principles provided for by international customary law. The ­Euphrates-Tigris riparian states have, however, on different occasions infringed these provisions, especially with respect to large dams they have constructed and operated on the two rivers. Nonetheless when assessing how Iraq, Syria and Turkey use Euphrates and Tigris for non-navigational purposes a definite trend towards more compliance with international law and more cooperation can be identified. Up until the 1990s the three states pursued rather unilateral policies. For instance, the initial impounding of the reservoir of the Syrian Tabqa Dam led to tension between Iraq and Syria, since Iraq considered the reduction caused by Syria impounding the Tabqa Dam’s reservoir to be unbearable. And when Turkey initially impounded the Atatürk Dam’s reservoir, the flow of the Euphrates below the dam was reduced substantially for about two months, which led to considerable dispute with Iraq and Syria. Until today the salinization caused predominantly by irrigation schemes operated as part of large projects on Euphrates and Tigris in Iraq and Turkey materially diminishes the usability of the Euphrates’ water. In particular, the salinization of the Euphrates caused in Iraq and Turkey exceeds what is permissible according to the no-harm rule and the doctrine of equitable utilization. In addition, the impact large dam projects have on the flow regime of Euphrates and Tigris is disconcerting. However, due to a lack of available data, no definite statement can be made as to whether these effects infringe international law. The dispute over the Ilisu Dam and how Turkey engaged the project, however, show a growing commitment to international law and cooperation between the Euphrates-Tigris riparian states. Especially the fact that Turkey conducted an EIA and informed and notified the lower riparian states on the dam prior to its implementation represents a positive development. Furthermore, the riparian states concluded a number of memoranda of understanding addressing cooperation in utilization and distribution of the waters of the Euphrates and Tigris.

124 See Philip Williams & Associates, A Review of the Hydrologic and Geomorphic Impacts of the Proposed Ilisu Dam, (on file with the author).

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However, the riparian states were only able to come to bilateral memoranda of understanding and agreements. In addition, these bilateral efforts are not coordinated on a regional level. This bares the risk of a fragmentation of as well as conflict of norms concerning the regulation of non-navigational uses of Euphrates and Tigris. Since the riparian states do not coordinate the bilateral regulations and understandings, a number of documents are relevant for the regulation of the non-navigational use of the two rivers. In addition, due to the recent efforts of Turkey to conclude bilateral memoranda of understanding with Iraq and Syria, there is an imbalance in regulation. While there are a growing number of instruments governing non-navigational use of Euphrates and Tigris between Turkey and Iraq and Turkey and Syria, there has been little progress in relations between Iraq and Syria. Furthermore, existing and future bilateral instruments may provide for regulations that differ or even contradict regulations of other bilateral agreements; thus leading to a conflict of norms. Considering the possible risk of a bilateral approach a trilateral agreement may be a suitable option to regulate non-navigational uses of Euphrates and Tigris. Such a trilateral agreement could also foster further coordination of the freshwater developments of Iraq, Syria and Turkey. Still, due to the political unrest in Syria and the strain it put especially on the Syrian-Turkish relations future developments—and a trilateral agreement in particular—presently appear to be out of reach.

Chapter Eight

Hydrology Johannes Cullmann

I. Introduction This contribution gives a general overview of the Euphrates-Tigris basin and then portrays hydrological characteristics with the aim of supporting the understanding of water resources management and related implications. The information provided here is based on data that is freely and openly available.1 As water resources in the area are subject to political sensitivity, published data only partially describes the real hydrological processes and their dynamics—both in time and space. This lack of information is, amongst other reasons, a consequence of transboundary political dissension. Incomplete and sometimes contradictory data prejudices a sound assessment of the issues at stake and hinders the development of collaborative solutions for actual and imminent water related challenges in the whole region. This contrasts with the positive experiences that have been achieved in the Danube river basin, where data exchange and scientific cooperation triggered the improvement of societal understanding and political development despite the Iron Curtain as early as the 1970s and 1980s.2 II. General Characteristics Six countries share parts of the Euphrates-Tigris basin, namely Turkey (22 %), Syria (11 %), Iraq (46 %), Saudi-Arabia (1.9 %), Iran (19 %) and Jordan (0.03 %).3 The drainage area of Euphrates is roughly 580,000 km², the river itself has a length

1   Global Runoff Data Centre (GRDC), World Meteorological Organization (WMO) Data Centre, data request June 2012. 2 A. Stancik / S. Jovanovic, Danube—Hydrology of the River Danube, 1988, 8 et seq. 3 K. Frenken, “Irrigation in the Middle East Region in Figures”, FAO Water Reports 34 (2009), 63.

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of 3,000 km. The Tigris has a length of 1,850 km and drains an area of about 370,000 km².4 The two rivers are the primary arteries of southeastern Turkey, Syria and Iraq and provide services for power generation, urban sanitation, drinking water and agriculture. Both rivers have greatly influenced the history and culture of the Middle East over several millennia and are still at the centre of politics and policy in the Middle East. 1. Physiography, Climate and Land Use The Euphrates and Tigris are the two major and longest rivers in the Middle East. They originate in Turkey and flow through Syria and Iraq to reach the Persian Gulf. The Euphrates river valley is shared by riparian countries as follows:

Source: FAO Aquastat, Euphrates Tigris River Basin, 2009, available at: . Reproduced with the courtesy of UN FAO. Figure 1. Euphrates and Tigris River Basin

4 Frenken, supra note 3, at 65; UNEP-DHI Centre for Water and Environment, The Ben­ efits and the Challenges of Linked Coastal and River Basin Management—Case studies, 2007, 84.



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21.1 % on Turkish territory, 16.5 % on Syrian territory, 13.4 % in Saudi Arabia and 49 % lie within Iraq. The Tigris is shared by Turkey 14.3 %, Syria 0.2 %, Iraq 38.3 %, and Iran 47.2 %.5 The rivers join to form the Shatt Al-Arab about 200 km upstream of the Persian Gulf. Both rivers are fed by several tributaries in Turkey, and ­during their journey to the Gulf their maximum water potential lies within Turkish territory. a. Physiography of the Euphrates The Euphrates has two main headwaters, the Karasu (western Euphrates) and the Murat (eastern Euphrates), that rise in the mountains of the highlands in eastern Turkey and flow eastwards until they join at the Keban Reservoir that was created by the construction of the Keban Dam in the early 1970s. From there, the combined Euphrates flows through the southeastern Taurus mountains. Some 40 km downstream of the Keban Dam, the Euphrates enters the Karakaya Reservoir receiving smaller contributions from the Tohma tributary. Further downstream, the Euphrates and Khata rivers form lake Atatürk, Turkey’s largest artificial reservoir that is impounded by the world’s sixth largest dam. Downstream of the Atatürk Dam two smaller dams (Birecik and Karkamis) are located on the river before the Euphrates crosses into Syria at Karkamis. In Syria, the river is joined by the Sajur river on the right bank of the Tishreen Reservoir before it enters lake Al Assad, Syria’s largest reservoir with a storage capacity of 11.7 km³ and a surface area of about 610 km², impounded by Al Tabqa dam. Downstream of the Al Tabqa Dam, power is generated by means of the smaller Al Baath dam 0.09 km³. The Euphrates then flows southeast across the Syrian semi-desert plateau where its waters are supplemented by the Balikh and the Khabur rivers, both rising in the Syrian-Turkish border region. The Khabur is the largest and last permanent tributary of the Euphrates. Further downstream, the Euphrates gains no additional natural inflow. The Euphrates crosses the Iraqi border east of Abu Kamal and narrows to an alluvial strip before it enters lake Qadisiyah formed by the Haditha Dam. Below Hit the river begins to widen and enters the large alluvial Mesopotamian Plain at Ramadi. From there on, the Euphrates loses parts of its water to a series of depressions and both natural and man-made diversions and abstractions. The lakes Habbaniyah and Razazah (also called Milh) are situated south of Ramadi. Both cover depressions into which excess water from the Euphrates is diverted by controlled escape channels. North of Ramadi is lake Tharthar, another depression that drains the Wadi Tharthar and is connected to both the Tigris and Euphrates. Between Musayib and Hindiyah, the river splits into two branches, Hillah and Hindiyah. The Hindiyah Barrage regulates the flow into both branches and diverts 5 D. Altinbilek, “Development and Management of the Euphrates-Tigris Basin”, Int’l J. Water Res. Devel. 20 (2004), 15.

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excess water from the Euphrates to lake Razazah. The Hillah branch divides into numerous channels and allows for irrigation of semi-arid areas to the east and south, while the Hindiyah branch forms the border between the desert areas in the west and the Mesopotamian Plain in the east and carries the main flow. Downstream of Nasiriyah, the Euphrates intersects the main outfall drain (also called the third river), a 565 km long canal that drains large parts of the Mesopotamian Plain and the southern parts of the Mesopotamian Marshes into the Persian Gulf.6 From there, the river meanders in an easterly direction and tangles into many channels, some of which flow towards lake Hammar and the Hammar Marshes while the remainder join the Tigris near Qurnah.7 The conjunction of Euphrates and Tigris forms the Shatt al-Arab. Joined by the Karun river, that rises in the Zagros mountains in Iran, about 30 km downstream of Basra, the Shatt al-Arab flows another 80 km southeast before it enters the Persian Gulf. b. Physiography of the Tigris The Tigris is the second largest river in southwest Asia and rises in the AntiTaurus mountains of southeastern Turkey from lake Hazar (elevation 1150 m). Impounded by the Kralkizi and Dicle dams in its headwaters, the Tigris flows southeast crossing the agriculturally important Diyarbakir province. It is fed by a number of smaller tributaries with the Batman and Botan rivers being the two largest. Downstream of the Turkish city Cizre, the Tigris flows along the border between Turkey and Syria for 32 km and receives the waters of (Little) Khabur at the border with Iraq. Approximately 50 km northwest of Mosul, the Mosul Dam banks the river and forms the largest reservoir in the region. Downstream of Mosul, the Tigris flows south and the two largest tributaries join the Tigris on its left bank: the Greater Zab and Lesser Zab rivers that originate from the Turkish and Iranian Zagros mountains, respectively. Between Tikrit and Samarra the Tigris enters the Mesopotamian plain. Near Samarra, a barrage diverts excess water from the Tigris to lake Tharthar. c. Geological Structure and Relief The Euphrates-Tigris basin, sloping from north to south, spans parts of four physiographic regions: 1) the Taurus and Zagros mountains in the north, northeast and east; 6 Frenken, supra note 3, at 67, 204. 7 Iraqi Ministries of Water Resources, Municipalities and Public Works, and Environment, New Eden: Master Plan for Integrated Water Resources Management in the Marshlands Area, 2005, 37 et seq., available at: .



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2) the Jezira plain and uplands in southeastern Turkey, northeastern Syria and northwestern Iraq, stretching from the Euphrates in the east to the Tigris in the west; 3) the Syrian desert in the west and southwest; and 4) the central flood plain (Mesopotamian Plain) in Iraq that is covered by flat alluvium which was deposited by both the Tigris and Euphrates rivers.8 The geologically young mountain ranges of Taurus and Zagros were formed during obduction, subduction and continental collision episodes in the Late Cretaceous and Paleocene eras. They are characterized by a rugged topography, steep slopes and deeply incised valleys. The Mesopotamian zone extends from Baiji in the northwest to the Persian Gulf in the southeast covering 110,000 km² and is relatively flat with a gradient of less than 10 cm per km sloping from 155 m.a.s.l. near Baiji to 30 m.a.s.l. near Baghdad to sea level at the Persian Gulf. The quaternary sediments of the Mesopotamian Plain were deposited by the Tigris, Euphrates, Diyala and Adhaim rivers, exceeding 250 m of thickness in some places. The upper part comprises fluviatile flood silts and aeolian silts deposited in the Plio-Pleistocene, Pleistocene and Holocene. Sediment accumulation formed a complex system of natural levees that follow the course of the rivers and pass gradually into a flood plain and eventually into a flood basin. d. Climate The climate in the Euphrates-Tigris river basin is defined by its location in a continental subtropical zone. It is characterized by inter-annual temperature oscillations and by extremely pronounced diurnal temperature variations. Wet winters and dry summers are characteristic. In the mountainous headwater regions most of the precipitation occurs between October and April, a lot of which is deposited as snow. The climate of the Mesopotamian Plain is semi-arid with maximum temperatures up to + 53° C in July/August and minimum temperatures as low as –7° C in January. Average annual precipitation is 150 mm/yr with a maximum of 250 mm/yr in the northeast near Jabal Hemrin. The deserts in the southwest receive less than 100 mm/yr causing semi-desert to desert climatic conditions.9 e. Irrigation & Hydropower Twenty-one dams with storage volumes of more than 1 km³ actually impound water in the Euphrates-Tigris river basin. Most of them serve multiple purposes

8 S. Z. Jassim / J. C. Goff, Geology of Iraq, 2006, 28 et seq. 9 Ibid., 187.

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with ­hydropower production and irrigation as principal target functions.10 Some structures have been built for flood protection. Irrigated agriculture is one of the main sources of income for large parts of the population living in the river basin. In Syria, the Taqba Dam has been designed and built to irrigate 640,000 ha. Currently, only about 38 % of the projected area is in use. The other 72 % of potentially irrigable land lies fallow due to salinization and poor land quality.11 The total of irrigable land in Syria amounts to up to 775,000 ha; in Iraq about 2 million ha are irrigable. With the 8.5 million ha of irrigable land that lies in Turkey, the total surface of potentially irrigated agriculture exceeds 5 million ha.12 Table 1. Large dams in the Euphrates-Tigris basin (with a storage capacity of more than 1 km³) Country

Turkey

Name

Completion

River

Capacity Surface (km³) area (km²)

Use*

Keban Karakaya Atatürk Ozluce Birecik Kralkizi Palandoken Batman

1974 1987 1992 2000 2000 1997 1997 1998

Euphrates Euphrates Euphrates Peri Euphrates Maden Euphrates Tigris

30.6 9.6 48.7 1.08 1.22 1.92 1.56 1.18

675 268 817 — 56 58 — 49

H, I H H, I

Syria

Tishreen Al Tabqa

1999 1975

Euphrates Euphrates

1.9 11.7

166 610

H H, I

Iran

Karun 3 Dez Karun 1 Karkheh

2004 1962 1976 2001

Karun Dez Karun Karkheh

2.97 2.86 3.14 5.56

48 65 — 162

H, I H, I, W H, I H, I, W

Iraq

Haditha Mosul Dokan Dibbis Samarra-Thathar Derbandi Khan Hamrin

1984 1985 1961 1965 1954 1962 1980

Euphrates Tigris Lesser Zab Tigris Tigris Diyala Diyala

500 326 270 32 — 121 440

H, I H, I I I F I

8.2 12.5 6.8 3 72.8 3 4

H H I H, I, F

* I = Irrigation; H = Hydropower; F = Flood protection; W = Water supply. Source: Adapted from K. Frenken, “Irrigation in the Middle East Region in Figures”, FAO Water Reports 34 (2009), 35.

10 Frenken, supra note 3, at 35. 11   FAO, “Syrian Agriculture at the Crossroads”, FAO Agricultural Policy and Economic Development Series 8 (2003), 129. 12 FAO, supra note 11; Altinbilek, supra note 5, at 24.



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Hydropower generation is estimated to reach more than 3 billion US $ for a price of 0.1 US $ per KWh. Total usable hydropower potential of the installed 21 dams is above 12 GW. 2. Hydrological Characteristics From their headwaters to the confluence, the discharge patterns of both the Euphrates and Tigris exhibit remarkable dynamics that reflect contribution of runoff from hydrologically different regions, diversion of irrigation water, natural distributaries in the lower parts of the basin and, more recently, the attenuation of the hydrological regimes due to embankment dams that have been built in the upper parts of the main streams and some of their tributaries. Both the Euphrates and Tigris exhibit nivo-pluvial flow regimes, i.e. they are characterized by strong snowmelt peaks that are superimposed by seasonal rainfall, mostly between March and May. a. Euphrates The Euphrates’ watershed in Turkey has eleven branches, the principal one is the Euphrates-Belkizkoy. An overview of the Euphrates and its main affluent is given in table 2. Annual precipitation forces hydrological processes in the watershed with a mean of 540 mm. This corresponds to 16.8 % of the entire runoff generated in Turkey. Mean annual water flow of the Euphrates in Turkey is estimated at 31.5 km³—this equals a mean annual runoff of 262 mm. The climate graph of Gaziantep (see figure 2) is characteristic of the flow generation in the Euphrates. Most of the precipitation falls as snow in the winter, yet spring triggers snowmelt that leads to flow peaks in April and May. The summers are dry and warm and the basin storage is emptied, implying minimum flows in September and October.13 Table 2. The Euphrates river and its main tributaries (own compilation) River name Euphrates Karasu Murat Sajur Balikh Khabur

Length (km) 2740 450 650 108 116 468

Basin size (km²) 579.314 (1) 22.000 40.000 2.042 14.400 37.081

Mean discharge (m³/s) 360 (Hit) – – 4.1 6 45

13 D. K. Saleh, “Stream Gage Descriptions and Streamflow Statistics for Sites in the Tigris River and Euphrates River Basins, Iraq”, US Geological Survey Data Series 540 (2010), available at: .

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Source: Klimadiagramm der Geokordinaten X: 37.25 / Y: 37.25, available at: . Figure 2. Climate Graph for Gaziantep

Historically, runoff in the river had been characterized by pronounced spring floods. These floods had both positive and negative implications. They fertilized agricultural land with sediments from the upper catchment. They also threatened agriculture and human livelihood whenever flood seasons produced extreme events (see 1970 in figure 3). After the first large dams were finished, hydrologic dynamics changed drastically (see figure 3 and figure 4). In figure 3 it is notable that the floods that occurred until the early 1970s did not repeat after the ­construction of the Keban and Al Tabqa dams. In the mid and late 1970s the effect of filling these reservoirs became clearly visible: the Euphrates’ flow was reduced significantly. From the late 1970s until the early 1990s, the flow regime of the Euphrates was clearly smoothed, peak floods were reduced and low flows were less drastic due to beneficial reservoir operation. Water was stored in times of abundance, potential flood events where thus mitigated, especially in springtime. Water was released in times of large demands, e.g. during dry spells in summer. The filling of the Atatürk Dam finalized this phase of positive impacts of water management. Until 2000, low flows were extreme and the overall flows were drastically reduced. In figure 4, this becomes evident. The difference in mean monthly flows before and after the construction of the big dams is about 50 %. This share of the water is diverted in Turkey, Syria and Iraq and no longer makes it to the lower reaches of Euphrates. This hydrological condition is amongst the causes of serious water shortage and water quality problems in Iraq. Unfortunately, the data that is being discussed in this article ends in 1998. Flow data from the Euphrates is apparently used as a means of politics, thus hampering independent serious scientific interpretation of the actual situation of the Euphrates. This statement is based on the fact that no actual flow data is available at the Global Runoff Data Centre (GRDC), the only neutral, UN mandated flow data compendium worldwide.14 14 See .



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Source: Reproduced with the courtesy of US Geological Survey (Department of the Interior available at: ). Figure 3. Monthly discharge of the Euphrates (Hit), 1932–199815

Source: Reproduced with the courtesy of US Geological Survey (Department of the Interior available at: ). Figure 4. The average monthly discharge of the Euphrates (Hit) before (1932–1973) and after (1974–1998) the dam constructions16

15 Saleh, supra note 13, at 135 et seq. 16 Ibid.

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b. Tigris As both the Euphrates and Tigris originate from the same climate area, dynamics of hydrology are quite similar in the upper reaches. Table 3 summarizes characteristic information on the Tigris and its main affluents. Snowmelt processes dominate runoff generation in Tigris headwater catchments. Maximum flows occur in April/May. A characteristic climate graph (see figure 5) portrays the precipitation dynamics in the upper Tigris basin. Minimum flows occur in September/October, when temperatures start to fall and the basin has dried out after a long and hot summer without significant precipitation. Table 3. Main tributaries of the Tigris (own compilation) Name Tigris Khabur Greater Zab Lesser Zab Adhaim Diyala

Length (km)

Basin size (km²)

Mean discharge (m³/s)

1,750 – 473 456 – –

371,562 (1) – 26,470 (2) 22,250 (2) 13,000 –

1,000 (Baghdad) 65 420 220 25 180

Source: Klimadiagramm der Geo-Koordinaten X: 40.25 / Y: 37.75, available at: . Figure 5. Climate Graph for Diyarbakir



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The longitudinal profile of the Tigris shows steep gradients along the first 200 km. The impoundment of the Mosul dam can be seen in figure 6. The main hydrological difference to the Euphrates is that the Tigris receives considerable contributions in its middle and lower reaches (Greater and Lesser Zab, Diyala, see figure 6), while the Euphrates does not receive considerable inflow once it leaves the Turkish headwaters. Development of hydrodynamics in the Tigris exhibits parallels to the situation of the Euphrates. The flooding had been addressed as early as the mid 1950s, when management of the Samarra-Thathar infrastructure started. The river shows amelioration of its low flow situation in recent years. This is a positive result of water management in the Tigris, especially on Iraqi territory, as far as Samarra-Thathar is concerned. For an integral assessment of the potential benefit of water management it would be necessary to conduct a multi-objective optimization exercise that integrates all existing infrastructure. Total abstraction rate from the Tigris is less than for the Euphrates. When comparing the situation before and after 1960 (figure 8), we can see that flow reduction is about one third of the total volume. However, overall water abstraction is, like in the Euphrates, a serious issue for the Tigris. The contributions of the tributaries of the Tigris are depicted in figure 9. They show the characteristic pluvio-nival snowmelt. The Adhaim river is the exception to the rule, it is situated in a purely nival flow regime and snow does not play a role in its runoff generation.

Source: Derived from US Geological Survey HydroSHEDS Data-website, available at: . Figure 6. Longitudinal profile of the Tigris

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Source: Reproduced with the courtesy of US Geological Survey (Department of the Interior available at: ). Figure 7. Monthly discharge of the Tigris (Baghdad), 1930–200417

Source: Reproduced with the courtesy of US Geological Survey (Department of the Interior available at: ). Figure 8. The average monthly discharge of the Tigris (Baghdad) before (1930–1960) and after (1961–2004) the dam constructions18

17 Saleh, supra note 13, at 111. 18 Ibid., 110.



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Figure 9. Average monthly discharge of the Tigris tributaries Khabur, Greater Zab, Lesser Zab, Adhaim and Diyala19

III. Conclusion This brief overview on the hydrology of Euphrates and Tigris leads to a number of conclusions: 1) The natural runoff regime has been drastically changed as a result of impound­ ment and abstraction; 2) Infrastructure has potentially positive effects (flood mitigation, irrigation); 3) Uncontrolled and uncoordinated water management compromises availability of high quality water throughout the river basin, especially in the downstream areas. Possible solutions for actual water related issues are readily available. Data exchange and cooperative assessment of water resources availability are indispensable preconditions for optimizing transboundary water management. Optimizing water management is a multi-faceted challenge that involves tackling supply and demand sides in all riparian states. Fixed water quota are inadequate tools for addressing highly dynamic hydrological processes that need to be taken into account in order to satisfy the needs of multiple stakeholders with competing claims. The actual situation will quickly worsen due to population growth, economic and agricultural development and possibly also due to climate change. This calls for impartial, transparent processes that involve all riparian states.

19 Compiled from Saleh, supra note 13. Reproduced with the courtesy of US Geological Survey (Department of the Interior available at: ).

part iii

Comparative Analysis of National Water Laws in the Euphrates and Tigris Region and European Union Water Law

chapter nine

Water Law in Iraq: The Present Model for Water Resources Protection Yadgar Kamal Ahmmad*

I. Introduction The Tigris and Euphrates river basin was the home of the world’s earliest advanced civilizations who lived in Iraq (known in ancient times as Mesopotamia). The riv­ ers have played a critical role for connecting people through their navigable chan­ nels and promoting concentrations of human settlement and development along those riverbanks.1 From the 20th century onwards, Iraq turned into a beleaguered country fueled by internal conflicts that caused major destruction of the country’s infrastructure first established in 1921.2 Its present population has reached 31 mil­ lion with people of different ethnic, religious, sectarian, and social backgrounds of fragile integration.3 Hence, Iraq has transformed into a weak country in an already volatile region where international relations are driven by numerous fac­ tors, such as oil, politics, extremism, economics, and outside interventions.4 Iraq mainly depends on both surface water and groundwater. The surface water is principally dependant on the Tigris and Euphrates rivers which are trans­ boundary rivers coming from the upstream countries. In the last two decades

* The author expresses his profound gratitude to both Ms. Adele Kirschner and Ms. Sigrid Mehring, from the Max Plank Institute for Comparative Public Law and International Law in Heidelberg, Germany, for their genuine efforts that have contributed to the out­ come of this article. 1  See A. Tanzi / M. Arcari, The UN Convention on the Law of International Watercourses, A Framework for Sharing, 2001, 4. See also A. T. Wolf, “Conflict and Cooperation along International Waterways”, Water Policy 1 (1998), 251, available at: . 2  See CIA, The World Factbook, available at: . 3 Ibid. 4 See F. M. Lorenz, “Strategic Water for Iraq: the Need for Planning and Action”, Am. U. Intl’l L. Rev. 14 (2008), 275.

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water resources management in Iraq has deteriorated extensively. The reasons for this to some extent lay in the eight-year Iraqi-Iranian war during the 1980s, followed by the Gulf War in the early 1990s. However, the indubitable cause was the 12 years of economic sanctions during which managing water resources brought further burdens on the central government. After the US-led invasion in 2003, the water infrastructure suffered severe damage due to looting and con­ tinuous political turmoil in Iraq. These factors have essentially created a difficult process for the current Iraqi lawmakers and administration in terms of implementing reform measures in the country’s legal system. These difficulties are compounded by Iraq’s unfavorable geographical downstream position where over two-thirds of its water resources come from the neighboring Turkey, Syria and Iran. Thus, passing satisfactory reg­ ulations on managing water resources in Iraq has continued to be a complicated issue for the legislature, despite the fact that the adoption of water resources legislations has increased since the 1920s.5 This contribution focuses on the Iraqi water law and examines the present laws in force as they relate to managing and protecting water resources. It also addresses the question whether these laws are competent to manage water resources in Iraq, or whether reform is crucial. At the outset, although the legislature in Iraq had issued various laws and regulations to protect the country’s water resources, it cannot be said that water legislation had been properly implemented and enforced before the 1980s. This is probably because social and political circumstances in Iraq were different at the time, largely owing to all the internal conflicts, which resulted in government agencies showing tolerance with regard to enforcing these laws, notwithstanding that infringements took place in different parts of the country. In this context, this contribution also reviews older and abolished laws, which constitute the basis for the succeeding laws on water resources management for the modern Iraq. For example, the first law regulating the protection of water resources in Iraq was known as Law of Monitoring Irrigation and Small Dams of 1923, which provided a clear definition of what an irrigation system includes in

5 This does not mean there had not been any laws regulating and protecting water resources before the establishment of the State of Iraq. There were laws derived from Islamic Sharia, whether from Holy Quran, Prophetic Sunnah or scholars’ books. Further, the Ottoman State had issued special laws dealing with this matter, and those were known as water laws Al-Hujaj (note from the author: this means arguments or reason­ ing). Courts used to depend on those laws when deciding on rights of water. This matter was addressed in arts 1248–1253 and 1262–1265; Judicial Ruling Journal. See Arab League / Arab Organization of Agricultural Development, Study on Developing Laws and Legisla­ tions of the Use and Development of Arab Water Resources, 2000, 53.



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relation to water resources.6 While this law was abolished by Irrigation Law No. 6 of 1962, the former law’s provisions were significantly revisited and emphasized in the latter.7 Next, the so-called Al-Makarih8 law for cleaning streets and transporting gar­ bage, adopted in 1935, comprised regulations for removing ‘Makarih’ and pre­ venting river pollution, which was also the focus of article 2 of Law No. 6 of Public Health of 1929. Although the Al-Makarih law is no longer in force (replaced by Law No. 45 of 1958, which in turn was abolished by article 21 of Regulation No. 44 of 1968),9 its articles 15, 16 and 17 clearly prohibited activities that cause con­ tamination of the public waters and rivers in Iraq. This is a clear example of an effective law on protecting water resources in Iraq. There are in fact numerous laws on protecting water resources based on the social, political and economic developments that Iraq experienced throughout the 20th century. However, regulation did not take place at the constitutional level until recently, as discussed below. II. Iraqi Constitutions from 1925 to 2005 Generally, constitutions in various countries acknowledge the importance of water resources management. Owing to the diversity of natural resources in general and water resources in particular, most national constitutions have overtly indi­ cated provisions on water resources regarding the nature of ownership, utilization

6 According to art. 2 (3), irrigation system means: (a) All channels, streams pipes and water reservoirs constructed at the government expense or being under its observation and control to distribute or store water; (b) all works, small dams, installations and creeks, which are distributed, or small parts of them being adjacent to streams, creeks, pipes, water reservoirs and all erected installations to facilitate the construction or maintenance of streams, creeks, pipes or water reservoirs; (c) Streams, connection works and flood control; and (d) Any part of a river, waterway, marsh, places where natural water concentrate or natural water leftover, which the Minister of Transport and Works consider as one of the works of irrigation. See Iraqi Official Gazette No. 100 of 4 October 1923, 169, available at: . 7 See Irrigation Law No. 6 of 1962 and its amendments, infra, section V. 3. 8 Makarih means anything disgusting, causing bad smell and resulting in public diseases. Linguistically, it is anything the public hates or dislikes. This word is obsolete and no longer used in this sense, but is referred to as an old Iraqi slang. See Iraqi Official Gazette No. 1379 of 31 January 1935, 15, available at: . 9 See Iraqi Official Gazette No. 1621 of 12 September 1968, 238, Vol. 2, available at: .

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and protection. However, this was not the case for the successive constitutions in Iraq. Unlike the present constitution, past constitutions adopted in Iraq through­ out the 20th century did not address the magnitude of water management issues. Instead, they only included water resources within the general definition of natural resources. The reasons for this were various, but mainly owing to the abundance of water resources vis-à-vis low population density, the low level of industrial activity and the instability that Iraq experienced during this period. Iraq’s legal system represents a mixed system composed of French civil law and Islamic law. Since 1921 the country has adopted eight constitutions. The first entered into force under the auspices of the British military occupation in 192510 and remained effective until the 1958 revolution,11 when subsequently interim constitutions were adopted in 1963,12 1964,13 1968,14 and 1970.15 The Constitu­ tion of 1970 remained applicable until the Transitional Administrative Law was adopted in March 2004.16 However, the current constitution, which was adopted

10 Art. 94 states that no monopoly or concession shall be granted for dealing with or using any of the natural resources of the land, nor for any public service, nor shall the state revenues be farmed out, except in accordance with law, provided that where the period relating to them exceeds eight years, they must in each case be the subject of a special law. See Constitution of the Kingdom of Iraq 1925, available at: . 11  See Interim Constitution of the Republic of Iraq 1958, available at: . 12 See Constitution of the Republic of Iraq 1963, available at: . 13 Art. 9 states that wealth of natural resources and forces are all the property of the state, which ensures proper utilization. See Constitution of the Republic of Iraq 1964, avail­ able at: . 14 Art. 14 states that natural resources are owned by the state to ensure proper exploi­ tation. See Constitution of the Republic of Iraq 1968, available at: . 15 Art. 13 Public Property and Planning, national resources and basic means of production are owned by the People. They are directly invested by the Central Authority in the Iraqi Republic, according to exigencies of the general planning of the national econ­ omy. See Constitution of the Republic of Iraq 1970, available at: . 16 Art. 25 (E) states that: The Iraqi Transitional Government shall have exclusive competence in the following matters: (E) Managing the natural resources of Iraq, which belong to all the people of all the regions and governorates of Iraq, in consultation with the governments of the regions and the administrations of the governorates, (. . .) for dealing with their situations in a positive way, for their needs, and for the degree of development of the different areas of the country. Coalition Provisional Authority, Law of Administration for the State of Iraq for the Transi­ tional Period, Centre for Studies on New Religions, available at: .



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on 15 October 2005, took a significant step by including tasks for managing water resources beyond defining the general meaning of natural resources.17 Article 110 assigns the federal authorities with the task of drawing up water policies because of their paramount importance and the danger to Iraq’s national security that could result from imminent water shortage. Thus, the federal authorities should necessarily control all water resources in the country. The article reads accordingly: The Federal authorities shall have exclusive powers in the following matters: (. . .) Eighth:—Planning policies relating to water sources from outside Iraq, and guaran­ teeing rates of water flow to Iraq.

This article stipulates that the federal government, as the major sovereign author­ ity and the real owner of this public property, is in charge of water resources plan­ ning and policies, especially when no other authority is capable of operating and maintaining it. Although the article does not literally mention ‘water resources management’ nor explicitly refers to ‘water protection’, it is arguably sufficient to use the term ‘planning and policies’ to encompass protection and management of water resources. Other than the constitution, which is the supreme law of the country, there are other laws in force concerning the regulation and protection of water resources in Iraq. These laws can be analyzed under five categories, namely the laws related to the establishment of water governance institutions, public waters and rivers laws, irrigation laws, environmental protection laws and other relevant laws. They are discussed in the following. III. Water Governance Institutions 1. Ministry of Water Resources: Law No. 50 of 2008 In principle, Law No. 50 has an essential perspective introduced by the Iraqi Par­ liament since 200318 as it assigns the formation of a legal and technical frame­ work for regulating Iraq’s national water resources to the federal government’s Ministry of Water Resources. The law has two important implications. The first is to achieve the requirements of article 110 of the 2005 Constitution; while the second is the initiation of a new framework for water governance assigned to this Ministry. Article 2 of this law states that the Ministry is in charge of planning and investment in water resources in Iraq and utilization of ground and surface water

17 See Iraqi Constitution 2005, available at: (translated by United Nations Assistance Mission for Iraq). 18 See Iraqi Official Gazette No. 4098 of 24 November 2008, 8, available at: .

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to achieve the ideal use of water resources, to develop water resources, and to determine water sources and uses.19 2. Iraqi Kurdistan Region Ministry of Water Resources: Law No. 9 of 2006 So far only the Kurdistan region, as the only regional authority, has power to determine its internal water policy by virtue of article 114 (7) of the 2005 Consti­ tution, which states: The following competencies shall be shared between the federal authorities and regional authorities: (. . .) Seventh: To formulate and regulate the internal water resources policy in a way that guarantees their just distribution, and this shall be regulated by a law.

Thus, article 114 of the 2005 Constitution guaranteed the introduction of Law No. 9 which establishes the Ministry of Water Resources for the Kurdistan region. On the contrary, the governorates do not have guaranteed constitutional authority over any aspect of internal water resources policy unless the federal government devolves it to them in accordance with article 123 of the 2005 Constitution.20 Law No. 9 requires the Ministry to aim for strategies, policies and plans to develop, improve and invest ground and surface water resources in the region, and conduct technical and economic feasibility studies for projects concerned with water resources. In addition, the Ministry should also construct and oper­ ate dams and undertake irrigation projects, and assess the integrity of dams and utilize water to achieve the ideal use of water resources. The Ministry should also maintain the region’s soil within the general development plans and policies of the region’s Authority.21 It should be borne in mind that before 1991, all the laws passed by succes­ sive Iraqi legislators were considered as the governing law of the entire country, unless a specific law itself made exceptions. Subsequent to the Gulf War in 1991, there was a no-fly zone proclaimed by the US, UK and France on the basis of

19 Art. 2 (3) states that (. . .) sponsor Iraq rights in common international water and maintain communica­ tion and information exchange with riparian neighboring countries on river basins, in a manner to reach fair agreements to divide the quantity of water entering Iraq. Fourth: preserve ground and surface water from pollution, giving priority to the envi­ ronmental aspect, and revive and maintain marshlands and other water surfaces. 20 See S. L. Murthy, “Iraq’s Constitutional Mandate to Justly Distribute Water: The Impli­ cations of Federalism, Islam, International Law and Human Rights”, Geo. Wash. Intl. L. Rev. 42 (2011), 1. 21 Art. 2, see Kurdistan Official Gazette No. 63 of 21 January 2007, 53, available at: .



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Resolution 688 adopted by the UN Security Council on 5 April 199122 that pro­ tected the Kurdistan region from the hostility of the central government. This scenario has changed the shape of enforcing the law in Iraq, as the Kurdistan region had established its own de facto government called Kurdistan Regional Government (KRG) and competent parliament to enact laws away from the con­ trol of the central government in Baghdad. Thus, laws and regulations issued by the Kurdistan Region parliament are only applicable to those areas controlled by the KRG. Even after the 2003 USled invasion in Iraq this pattern has continued to be the practice until today. On the other hand, any law issued or amended by the Federal Government will not necessarily be enforceable in Kurdistan until the parliament of the Kurdistan Region approves it. The best example to this argument is Companies Law No. 21 of 1997 as amended, which is still a valid law in Iraq, was not enforceable in the Kurdistan Region, until law No. 28 of 200723 was issued by the parliament of the Kurdistan Region endorsing the enforcement of the law No. 27 of 1997. As to the post invasion’s disputed areas such as Kirkuk city and its suburbs, it is sug­ gested that federal legislation will prevail until the final settlement of the dispute has been achieved, as required by article 140 of the 2005 Constitution. 3. Ministry of Environment: Order 44 of 2003 Although the Iraqi Ministry of Environment was only established in 2003, in com­ parison with other countries in the Middle East, Iraq had a well-developed system of environmental governance and monitoring prior to the formal constitution of this Ministry, according to the United Nations Environmental Report.24 Thus, it is important to briefly discuss how environmental governance institutions were established and then to examine how relevant they are to water resources protec­ tion in Iraq. First of all, the Directorate of Human Environment was created under the Ministry of Health in 1972 immediately after the United Nations Conference on

22 UN SC, UN Doc. S/Res/688 of 5 April 1991, available at . 23 Art. 1 Law No. 28 of 2007 states that Iraqi Companies Law No. 21 of 1997 and its provi­ sions shall be in force in the Kurdistan Region until a special companies law will be passed in the Region. See Law No. 28 of 2007 for enforcing the Companies Act (federal) No. 21 of 1997 as amended in the Kurdistan Region-Iraq, Iraqi Official Gazette No. 77 of 25 December 2007, 53, available at: . 24 Ministry of Environment, Government of Iraq / Post-Conflict Branch, United Nations Environment Programme, “Iraq Institutional Capacity Assessment Report”, June 2006, available at: .

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the Human Environment.25 This was followed by the establishment of the Envi­ ronment Protection Centre within the Ministry of Health, which was afterwards transformed into the Environmental Protection and Improvement Directorate (EPID) in 1986.26 The EPID structure was rearranged by virtue of article 11 (1) of the Environment Protection and Improvement Law No. 3 of 1997.27 The article reads: “there shall be an established directorate under this law called the Envi­ ronmental Protection and Improvement Directorate and linked to the Council.” The term ‘Council’ was defined by article 3 as the Council for Protecting and Improving the Environment (CPIE). In fact, it is clear from reading article 3 that the main aim of Law No. 3 of 1997 was to establish the CPIE under the auspices of the Council of Ministers.28 At that time, the EPID was designated as an independent body and formally dissociated from the Ministry of Health. Additionally, various governmental and non-governmental representatives and experts were set up within this new insti­ tutional framework. Ironically, Law No. 3 of 1997 established budgetary and tech­ nical independence for EPID, yet, it continued to receive administrative support from the Ministry of Health, of which it was widely regarded to be an integral part. When the administrative vacuum occurred in Iraq in 2003 after the invasion, and in the absence of a functional Environment Council, the EPID was initially reintegrated for administrative and budgetary purposes into the Ministry of Health. In mid-August 2003, EPID staff relocated from the Ministry of Health to the Department of Environmental Laboratories building in Baghdad. On 1 September 2003, the Iraqi Governing Council announced its Cabinet, which included the appointment of a Minister of Environment. In parallel, the Governing Council developed and submitted a proposal for an institutional structure for a new Environment Ministry. Under the proposal, the existing EPID (which was under the Ministry of Health, as mentioned above) was intended to form the core of the Ministry of Environment,29 in order to avoid overlapping tasks and activities between the EPID and the Ministry of Environment.

25 See United Nations Environment Programme (UNEP), “Declaration of the United Nations Con­ference on the Human Environment”, 16 June 1972, available at: . 26 Iraqi Ministry of Environment website, available at: . 27 See Iraqi Official Gazette No. 3890 of 6 August 2001, 90, available at: . 28 Art. 3 reads as follows: Under this law there shall be an established Council called Council for Protecting and Improving the Environment (CPIE) linked to the Council of Ministers and it is represented by its President or his nominee. 29 The resolution, known as CPA Order 44, gave the Ministry of Environment the mandate to protect and conserve Iraq’s environment, as well as protect the residents of Iraq from environmental pollutants and environmental risks to human health. The Order further



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Finally, the Ministry of Environment was officially established by a resolution passed by the Iraqi Governing Council and signed by the Coalition Provisional Authority (CPA) by Ambassador L. Paul Bremer on 3 September 2003. In addition, the CPA Order abolished the CPIE created by Law No. 3 of 1997, as it was connected with the previous regime’s Council of Ministers.30 Instead, it set up a consultative body composed of representatives of other ministries to coordinate on policies and programs affecting the environment.31 Interestingly, the rules and regula­ tions passed under this law still remain in force. This is evident from article 37 of the new Environment Protection and Improvement Law No. 27 of 2009, which states: (. . .) the Environment Protection and Improvement Law No. 3 of 1997 is abolished, but the rules and regulations issued thereunder remain effective as long as they do not contradict the provisions of this law until they are replaced or repealed.32

Furthermore, even the above-mentioned abolished CPIE was re-established by virtue of article 3 of Law No. 27 of 2009, in accordance with the new Iraqi Federal system. Articles relating to protecting water resources under Law No. 27 of 2009 will be discussed subsequently.33 What is so important about Law No. 3 of 1997 is that it prepared the ground for enacting the new regulation related to water resources protection in Iraq entitled: Law of Conserving Water Resources No. 2 of 2001 which is still in force.34 This law has extended the mandate and responsibilities of the EPID to address broader environmental issues related to water resources. It was perhaps one of the most effective water regulations in the country before the US-led invasion. Given the importance of water resources vis-à-vis the environmental, economic and social development in Iraq, and the growing phenomenon of water pollution alongside the scarcity of water resources, it had become necessary to issue laws regulating the utilization of water resources for purposes other than domestic use. Law No. 2 of 2001 also includes rules regarding the management, utilization and preservation of water resources inside Iraq, in addition to provisions on the

stated that the Ministry of Environment was responsible for integrating environmental concerns in other sectors, such as economic development, energy, transportation, agri­ culture, industry and trade. Other duties included the development of environmental policies and programs, as well as the creation and enforcement of environmental stan­ dards. See The Coalition Provisional Authority, Order 44, Establishment of The Min­ istry of Environment, 14 November 2003, available at: . 30 See ibid., Section 3, Structure 2 of Order 44 of the CPA. 31  Ministry of Environment, Government of Iraq / Post-Conflict Branch, United Nations Environment Programme, supra note 24. 32 See supra note 27, at 505. 33 See Environmental Protection and Improvement Law No. 27 of 2009, infra, section VI.1. 34 See supra note 27, at 505.

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discharge of wastes into public waters which determine how to dispose of or recycle wastewater. For example, article 3 of the regulation prohibits the dis­ charge or casting of wastes into public water for both public and private entities. Such entities are strictly not allowed to discharge wastes, for any reason whatso­ ever, except following the obtainment of an approval to discharge those wastes as per the criteria and specifications set out by the EPID. Article 4 further prohibits discharging any pollutant into public waters. In this context, article 5 authorizes the EPID to issue environmental determinants of quality of wastewater discharged into public water, sanitary sewer or rainwater network systems in respect of the chemical and biogenic nature and the use of the discharged water. This also includes wastewater containing dangerous or toxic substances intended to be discharged into these systems, depending on the nature of those substances, taking into consideration a set of factors about the effects of these (toxic) pollutants on organisms, especially on the human body. Moreover, article 6 obliges the owners of small private businesses that pro­ duce wastes containing radioactive substances to use the required methods to treat these substances before discharging them into public water, irrespective of their financial cost. Under this article, the owner must submit full details on the required procedures that he will take to remove the pollution impacts, explain­ ing the environmental impact of the respective project, to the EPID. This article also obligates a shop owner to apply for an annual permit or license from the EPID to discharge wastewater resulting from any activity performed in the said business’ premises into public water, sanitation or rainwater systems networks.35 The EPID may issue the license only after ascertaining that the shop meets the relevant health requirements to be observed in accordance with the orders and instructions set forth in article 5 (b) and (c). Conceivably one of the most important articles of this law is article 9. It pro­ hibits disposing certain materials in the vicinity of water treatment and purifica­ tion stations, such as pollutants causing metal erosion, high viscosity materials affecting water projects, and other non-disintegrated materials. These materials are considered to be dangerous and have negative effects on these projects which eventually lead to pollution. The article also prohibits disposing carcasses, human and animal waste, decayed material, or other wastes of any kind into public waterways or riverbanks. This issue was also mentioned by article 10 of the Regu­ lation on the Protection of Rivers and Public Water from Pollution, Law No. 25 of 1967,36 and article 496 of Penal Code No. 111 of 1969 and its amendments.37 35 See supra note 27, art. 6. 36 See Protection of Rivers and Public Water from Pollution No. 25 of 1967, infra, section IV. 4. 37 See Section 6.6 of the Penal Code No. 111 of 1969 and its amendments, Iraqi Official Gazette No. 111 of 1969, available at: .



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Article 9 furthermore prohibits washing animals, their skins, intestines, wool or any materials damaging the environment or public health in water or passing stools or urinating into waterways or at riverbanks.38 In addition, Law No. 2 of 2001 further introduces mechanisms for the pres­ ervation of public water. Hence, provincial councils are authorized to protect and improve the environment through coordination with local peoples’ councils and to make plans for each governorate to protect public water from pollution and improve its quality according to timetables. These plans are to be presented to the Council of Environmental Protection and Improvement.39 Furthermore, the provincial councils’ plans for the protection of public water from pollution must identify the sources of pollution in public water and indicate the proposed treatment method. The plans must also account for future projects for treating pollutant sources to the national water with recommendations on budget funds, timetables for the execution and implementing methods.40 Last but not least, this law (Law on Conserving Water Resources No. 2 of 2001) for the first time introduced mechanisms to ensure how wastewater should be processed, disposed or recycled through engaging with local people’s partici­ pation because, as suggested by the UN Global Environment Outlook Report 2000, policies implemented without public participation have proved to be unsustainable.41 4. Law of the General Authority for Water and Sewage: Law No. 27 of 1999 The Law of the General Authority for Water and Sewage is another valid law, which defines the obligations and mandate of the local authorities in charge of processing drinking and raw water in one hand, and the discharge of sewage and rainwater runoff in the other for all parts of Iraq outside the boundaries of the Municipality of Baghdad.42 This law entails that the processing should be done

38 Ibid., art. 9 (c). 39 Ibid., art. 12. 40 Ibid., art. 13. 41  UNEP, GEO 2000, 5, available at: . 42 The Municipality of Baghdad has a special directorate called Water Directorate, which is particularly established and responsible for water governance in Baghdad only. It is noteworthy that before 1987, although Baghdad was (and still is) the capital city of Iraq, it was considered as a governorate like the rest of the other 17 governorates in Iraq in terms of administration. However, in 1987, this name was changed to the City of Baghdad, and the Municipality of Capital Baghdad was changed to the Municipality of Baghdad. This municipality’s organizational restructuring took place after modify­ ing administrative units and setting new boundaries for the city of Baghdad. In addi­ tion, the Municipality was brought directly under the Council of Ministers, and this is still the case. See History of Municipality of Baghdad, Municipality of Baghdad website, available at: .

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according to needs and long-term planning, taking into account economic, social and health developments.43 Interestingly, this law entailed compulsory connection of all the private prop­ erties to a national water grid in the years 1998 and 1999 which were considered as severe drought years in the Middle East region. In this context, article 11 states accordingly: If the installation of water and sewage networks is completed in an area where a property is located, the owner or the person in charge of the property is obliged to participate in these networks. If the owner declines to participate, the competent authority should work on his/her behalf and pay the aggregated expenditure for such installation in accordance with the provisions of the law of the collection of govern­ ment debt.44

Although article 2 is explicit about enforcing this law in all of Iraq except Bagh­ dad, one should consider that this law was not effective in Kurdistan Region for being a semi-autonomous area, possessing a separate parliament and outside the control of the Central Government of Baghdad at that time, as was mentioned earlier. Even nowadays, this law is not enforceable in the Kurdistan Region as it has not been approved by the parliament of Kurdistan.45 IV. Public Waters and Rivers Laws Public waters and rivers are generally described by various laws in Iraq. This sec­ tion highlights four laws elucidating what public waters consist of and which waters must be protected from pollutants. It is worth mentioning that all these laws are still in force, notwithstanding that they were endorsed in the second half of the 20th century. They are as follows: 1. Beaches Utilization: Law No. 59 of 1987 Article 1 of the Beaches Utilization Law defines a river as a main natural waterway that has a source and estuary and is fed by springs, groundwater, lakes and tribu­ taries. These sources all contribute to the water flow of a river, be it continuously or intermittently throughout the year. Article 2 underlines that the objectives of this law are to secure the passage of floodwater and prevent pollution caused to the rivers, particularly the Tigris and 43 Art. 2, see Iraqi Official Gazette No. 3788 of 23 August 1999, 495, available at: . 44 Ibid. 45 In order to ascertain the accuracy of this statement, the author interviewed Dr. Anwar Omer Qader, the General Director of Planning and Following, Kurdistan Regional Gov­ ernment, Ministry of Agriculture and Water Resources on 28 November 2012.



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Euphrates and their tributaries. It is suggested that this law ignores the legal own­ ership status of the land, be it ownership right, right to use the land, or even if it is a rented or trespassed land, as far as pollution is concerned. Under article 2 (2), the Ministry of Irrigation was given the power to order the removal of any instal­ lations or barriers erected, even before the issuance of this law, which hinder the flow of water in the river basins. The reason is to prevent narrowing water­ ways that will ultimately incapacitate the basins to absorb flood waves. Since the two rivers are crucial for the peoples’ life and economic development in Iraq, this law has, to a certain extent, retroactive effects. However, the approval of the President of the Republic was needed for removing any installations or barriers erected before the issuance of this law.46 2. Hydrocarbon Resources Preservation: Law No. 84 of 1985 The Hydrocarbon Resources Preservation Law seeks to preserve the water envi­ ronment and prevent it from pollution resulting from the rupture of oil pipes or oil spills into rivers. Although this law is not explicit about the definition of public water, it refers implicitly to public water because all kinds of waters located in public lands are public property, and therefore considered as public waters. At the same time, this law concerns oil companies which operate in public lands based on concessions and production-sharing agreements. Hence, article 4 underpins that: The operating party must take all measures and precautions to prevent damage and risks that may result from processes that threaten the health and lives of individuals (. . .) and must prevent air and surface and groundwater from pollution whenever possible.

Under this article, not only surface water, but also groundwater is considered as public water, and thus crucial to be protected. Next, article 8 (2) spells that: The operating party is prohibited from pouring oil and its derivatives on the ground or in the [public] water (. . .) and must desist from burning gas, unless it cannot be invested economically.47

46 Art. 2 (a) and (b). See Iraqi Official Gazette No. 3157 of 6 July 1987, 390, Vol. 2, available at: . 47 According to art. 47 these specifications must take the following into consideration. It states: The passage of pipelines through different areas, and cross with rivers, waterways and railways to ensure their protection from external factors such as erosion and exposure to breakage. See Iraqi Official Gazette No. 3061 of 21 October 1985, 734, Vol. 2, available at: .

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Article 47 provides that the Minister of Oil shall issue instructions in line with the appropriate technical specifications adopted in the oil industry so as to safely operate and maintain the facilities of transportation, storage, loading and distri­ bution of water.48 3. Fishing, Exploiting and Protecting Aquaculture: Law No. 48 of 1976 The Fishing, Exploiting and Protecting Aquaculture Law obliges fishing compa­ nies to preserve aquaculture in public water in the way prescribed by articles 1 and 3. Article 4 defines public water as internal public water including rivers, lakes, marshes, water reservoirs, fish farms, swamps both permanent and tem­ porary, as well as drainages, streams, ponds, common gulfs, creeks and regional water and their marshes, swamps, ponds, and gulfs.49 It is worth mentioning that article 28 (2) states that “nothing in this law shall prevent penalties under any other law, if the offense involves more severe penalty.” 4. Protection of Rivers and Public Water from Pollution: Regulation No. 25 of 1967 The Regulation on the Protection of Rivers and Public Water from Pollu­ tion clearly describes what public water consists of under article 2. The article states that: For the purpose of applying the provisions of this law, public water means all riv­ ers in Iraq and their tributaries, tables and canals, and their original and second­ ary branches, sewer and original and secondary branches, lakes, marshes, ponds and swamps, springs and wells and other groundwater, and docks and other water parks.50

Apart from the above definition, this law addresses several matters related to the discharge of wastewater whose discharge into public water and sewage systems is prohibited. Article 7 prohibits discharging wastewater from shops into pub­ lic water if either absorbed vital oxygen or floating materials exceed the rates ­determined by the health authority, or by virtue of any other instruction given by the Minister of Health. Moreover, articles 8 and 9 of the regulation provide

48 Ibid. 49 Art. 1, See Iraqi Official Gazette No. 2527 of 3 May 1976, 2, Vol. 1, available at: . 50 See Iraqi Official Gazette No. 1446 of 16 July 1967, 108, Vol. 2, available at: . It is noteworthy that the articles of this Regulation came to achieve the pur­ pose of the Public Health Law No. 45 of 1958 (comprised of 15 articles, but no longer in force as it was replaced by art. 102 of Law No. 89 of 1981).



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mechanisms to control water pollution caused by discharges of waste water into public water by shop owners.51 Furthermore, the word ‘shop’ is defined by article 1 of this law to include any public or private factory, store or any other institution whether publicly or privately owned. Article 10 prohibits disposing of animal car­ casses, secretions, feces, any decayed substance, whether solid or liquid, garbage of any kind, or any other harmful materials into any public waterway or over its beaches. Orders to commit such acts are equally prohibited. Although this law is still in force, its text overlaps with article 9 of the Regula­ tions on Preservation of Water Resources No. 2 of 200152 and may cause confu­ sion for both the public and in particular judicial authorities to decide which law should prevail although the more recent law provides more details. Moreover, the regulation addresses the means of using public water and drink­ ing water and tackles some of the problems resulting from water pollution. It holds anyone who performs such prohibited activities liable (article 15). It also establishes methods to prevent certain negative effects of water usage, as it, pur­ suant to article 11, prohibits the casting of leftovers and discharge of wastewater into any river, channel, waterway or stream. Article 12 of the regulation prohibits the use of water resources for wasteful use, such as washing leathers, clothes or any other polluted material in a river, channel or waterway. Finally, the regula­ tion provides several instructions concerning the permitted level of pollution in general.53 V. Irrigation Laws There are three main laws endorsed in the last five decades dealing with irrigated lands in Iraq which are still in force, including some amendments not relevant to water issues. However, each of these laws has particular provisions holding the government and its entities responsible for maintaining, monitoring and improv­ ing waterways.

51  Ibid. 52 Art. 9, supra note 27. 53 The regulations include the following instructions: Instructions No. 1 determine fixed percentages in tables for permissible materials in terms of hydrogen sulfide, poison­ ous materials and other substances. If these materials exceed those percentages, they will be deemed harmful, as per the provisions of art. 7 (3). Instructions No. 2 deter­ mine the temperature of water discharged by a shop, which must not be more than 80 degrees centigrade. Instructions No. 3 address the procedures for granting licenses for water discharged by a shop, before taking drinking water. Instructions No. 4 address the issue of refraining from the discharge of waste water into public water in any shape or form.

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1. Maintenance of Irrigation and Drainage Systems: Law No. 12 of 1995 The Maintenance of Irrigation and Drainage Systems Law aims to maintain irri­ gation and drainage networks. Article 1 necessitates facilitating and securing the operation management in accordance with plans approved by the relevant directorates under both the Ministries of Irrigation and Agriculture. It also aims to protect irrigated agricultural lands from negligence, harmful salinity and low fertility, and to identify those responsible for causing this. Although this law was introduced mainly for purposes of managing irrigation, it does not ignore the importance of protecting natural rivers. Its article 5 places responsibilities on the general committee of the irrigation project operation and the irrigation directorates in the governorates responsible for the maintenance of rivers and streams. This includes natural rivers, main drainage, estuaries, evapo­ ration basins, and drainages delineated in the design maps, their installations and pumping stations located on them.54 2. Irrigation Ministry Companies and Bodies Law No. 44 of 1987 The Irrigation Ministry Companies and Bodies Law establishes 13 state compa­ nies to assist the Ministry in carrying out its duties and objectives.55 Among those 13 companies, three are given specific tasks to clean river beds in order to main­ tain a smooth flow of water and protect the water environment.56 In this con­ text, article 2 (4) of this law provides that Al-Muthanna, Al-Hadba’ and Al-Nasir Companies for the Maintenance of Irrigation Projects are responsible for imple­ menting contracts related to the maintenance of rivers, irrigation and drainage

54 Art. 5, see Iraqi Official Gazette No. 3578 of 28 August 1995, 260, available at: . 55 Art. 1 of this law states that: This law establishes 13 state enterprises which are directly linked to the Ministry of Irrigation, they are: Al-Rafidain Company for Construction of Dams, Al-Salah ad Din Company for Land Reclamation, Al-Nahrawan Company for Land Reclamation, Palestine Company for Land Reclamation, Green Company for the Cultivation of Reclaimed Land, Zora Company for the Cultivation of Reclaimed Land, ­Al-Muthanna Company for the Maintenance of Irrigation Projects, Al-Hadba› Company for the Maintenance of Irrigation Projects, Nasr Company for Maintenance of Irrigation Projects, Drilling Water Wells Company, Repairing Machinery and Equipment Com­ pany, General Authority for Land Surveys, and General Authority for Oases and Soil Conservation. See Iraqi Official Gazette No. 3153 of 8 June 1987, 360, Vol. 1, available at: . 56 Ibid.



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networks as well as maintenance of the related installations, instruments and other facilities within and outside the country.57 3. Irrigation Law No. 6 of 1962 and Its Amendments The Irrigation Law was mainly introduced to regulate irrigation activities and the protection of water resources. Under this law, the state bears the responsibility of monitoring, operating and protecting lakes and rivers as well as monitoring and improving natural and man-made waterways, which are constructed to store, distribute and discharge water. In this context, article 1 states that irrigation sys­ tem works are those that deal with lakes, marshes and natural waterways used for watering, or water drainage and its excess water. The article further includes synthetic sewage constructed by the state for the purpose of water storage, distribution or disposal of water entering the sewer basins, in which all scientific or technical information must be collected for the purposes of irrigation or drain­ age system. Interestingly, this law imposes the death penalty upon anyone who maliciously changes or damages an irrigation course, which results in human casualties, as clearly stated in article 15.58 As to the question whether this article (which pro­ vides for capital punishment) is still in force, it can be argued that this provision is still valid for two reasons. Firstly, there is no successive law to replace it, and secondly the penalty itself stands in parallel with article 406 (1) (a) and (b) of the Iraqi Penal Code No. 111 of 1969 allowing the death penalty.59 Finally, most of the subject matter and the articles’ provisions under this law stem from the earlier law of Monitoring Irrigation and Small Dams Related Mat­ ters in Iraq of 1923, but with modifications that suited the new environment in Iraq. The latter was repealed by virtue of article 18 of the new law so as to avoid confusion and overlapping legal texts. VI. Environmental Protection Laws There are two main environmental laws in Iraq and both of them make extensive references to protecting water resources in the country.

57 Ibid. 58 See Iraqi Official Gazette No. 645 of 20 January 1962, 25, available at: . 59 Art. 406 states that the death penalty will be imposed upon anyone who intentionally kills in one of the following cases: a) if the murder is premeditated; b) if the murder caused by using a toxic substance, cracker or explosive. See Penal Code No. 111 of 1969, supra note 37, at 671.

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1. Environmental Protection and Improvement Law No. 27 of 2009 The Environmental Protection and Improvement Law aims to improve and pro­ tect the environment, including national and territorial waters, from pollution, reducing its negative effects on health, on the environment and on other natural resources. The Iraqi parliament introduced this law against a background of con­ siderable improvement in the security situation in Iraq compared to the years before 2007. This improvement promoted some economic development in the middle and southern part of the country which resulted in increased pollution, especially from industrial and household discharges dumped into the rivers and other water resources. One of the most important articles of this law is article 14 which identifies water pollutants as well as a number of harmful acts which are strictly prohibited. For example, it prohibits discharging any domestic, industrial, service or agricul­ tural liquid wastes or poisonous materials into national water resources, whether surface or groundwater, or into Iraqi maritime zones unless prior treatments have been made.60 Penalties will be imposed upon anyone who violates the legal obli­ gations set forth in the law. Hence, article 33 of the law states: First: the minister [Minister of Environment] or his authorized representative may warn any establishment, factory or any authority or environment polluter to remove the affecting factor within ten days from the date a warning notification is served. In case of non-compliance with the minister’s order, the minister may suspend the activity or order temporary closure for no longer than thirty days, which may be extended until the violation is removed.

This article also imposes a fine between one million and ten million Iraqi Dinars, which is renewable on a monthly basis until the violation is removed, on anyone who violates any provisions of this law. The powers to enforce this law are vested in the executive authority, the Minister or an authorized director general.61 2. Iraqi Kurdistan Region Environment Protection and Improvement Law: Law No. 8 of 2008 The Environment Protection and Improvement Law determines the permissible levels of water pollution and treatment in the Kurdistan region. Article 22 prohib­ its discharging or putting any harmful substances, whether liquid, gaseous, radio­ active or thermal, into water resources unless when processed in accordance with applicable standards. The article does not differentiate between public or private water resources, it refers to all kinds of water resources.

60 See Iraqi Official Gazette No. 4142 of 25 January 2010, 8, available at: . 61  Ibid.



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There are similarities between this article and article 14 of the Environmental Protection and Improvement Law 2009, such as the definitions and the prohibi­ tion of discharging a number of pollutants into the water resources. Article 23 establishes that “regional standards for surface water and ground­ water and drinking water should be set systematically”. Article 24 places the responsibility on the Ministry of Environment of the KRG to determine the level of pollution allowed in water used for drinking, irrigation, industry and services, which shall be reviewed from time to time, as circumstances require.62 VII. Other Related Laws There are also a number of laws in Iraq that were not mainly endorsed for the purpose of protecting water resources. Nonetheless, each of them have specified provisions relevant to this matter and are still in force. 1. Forests and Woodlots: Law No. 30 of 2009 The Forests and Woodlots Law aims to prevent logging in order to protect water­ ways and springs. It attempts to create a balance between protecting the envi­ ronment as well as water resources at the same time. Article 9 thereof states that trees in private sector forests should not be cut if the existing forest is essential for the protection of waterways and springs.63 2. Law on the Protection and Development of Agricultural Production in the Kurdistan Region-Iraq No. 4 of 2008 The Law on the Protection and Development of Agricultural Production in the Kurdistan Region-Iraq No. 4 of 2008 refers to all agricultural lands, plants, groves, forests, pastures and livestock and its produce, water resources and other agri­ cultural production in the definition of national resources, as specified in article 1. The article also holds owners and other persons utilizing and developing the resources according to plans and strategies of the regional authorities liable if such usage results in damaging and harming them. Article 2 provides for treat­ ments to be made on lands in order to expand irrigation areas and provide sys­ tems for the rational use of water.64

62 See Kurdistan Official Gazette No. 90 of 8 November 2008, 41, available at: . 63 See supra note 60. 64 See Kurdistan Official Gazette No. 87 of 6 December 2008, 19, available at: .

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3. Public Roads Law No. 35 of 2002 A relevant part of the Public Roads Law was introduced with the purpose of securing the flow of water, rivers, streams and drainage canals when affected by projects of public roads and bridges. Accordingly, article 18 obligates companies working on road construction to, for example, build alternative roads in case a construction project may otherwise interfere with a rivers flow.65 4. Natural Pastures Law No. 2 of 1983 The Natural Pastures Law prohibits ploughing or cultivation in natural pastures without prior approval from the authorities (mainly the Minister of Agriculture and Agrarian Reform of that time), according to articles 9 and 10. However, article 12 expresses more precisely that penalties will be imposed against anyone who causes damage to water springs, wells, water distribution facilities, or any other water source in these pastures, or to fences, signs, border landmarks, or other structures in a natural pasture.66 The penalty should not exceed one year impris­ onment and a fine may not exceed 500 Iraqi Dinars. If the violation is repeated, the penalty will be imprisonment for a term not exceeding two years and a fine not exceeding 1,000 Iraqi Dinars.67 5. Public Health Law No. 89 of 1981 Chapter V of the Public Health Law No. 89 of 198168 is dedicated to the issue of drinking water in order to obviate the great damage that water pollution could cause to public health. Under this law, article 64 sets out the procedures to be implemented by the state authorities in charge of supplying water to the citizens. Moreover, article 65 requires the obtainment of approval from the compe­ tent health authorities when planning to conduct studies and suggesting designs

65 Art. 18 also obligates the construction companies to build alternative roads if the exist­ ing ones hiders the new projects, see Iraqi Official Gazette No. 3947 of 9 September 2002, 450, Vol. 2 available at: . 66 Art. 12, See Iraqi Official Gazette No. 2922 of 31 January 1983, 74, Vol. 1, available at: . 67 Ibid. Also in 1982, the value of the Iraqi Dinar was equal to US $ 3.22, and sustained this official exchange rate without additional devaluation despite mounting debt until the year 1988. See “eDinar Financial”, Securing a Changing World Website, available at: . 68 See Iraqi Official Gazette No. 2848 of 17 August 1981, 759, Vol. 2, available at: .



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for projects of drinking water supply. It further stipulates the submission of infor­ mation related to the water quality at the source. Article 65 addresses a vital issue, which is the degree of using the source and the methods of subsequent purification and treatment of the water source. Arti­ cle 67 obliges the competent authorities to ensure that drinking water quality is suitable for human consumption as well as to assess the feasibility of these drinking water projects all over Iraq. Additionally, this article states the necessity that every new drinking water installation project must contain a unit for purify­ ing drinking water and integrated laboratories to conduct mycological, chemical and physical tests to identify the efficiency of purification stages and ensure that the supplied water corresponds with the standards. The laboratories must also provide the health authority in the area with the drinking water test results.69 Finally, article 105 stipulates that regulations, instructions and statements may be issued to facilitate the implementation of the provisions of this law.70 6. Penal Code No. 111 of 1969 and Its Amendments There are a number of articles under the Iraqi Penal Code and its amendments dealing with water related issues. For instance, article 368 criminalizes acts which harm the public health that are related to the environment and its protection, such as causing the spread of harmful diseases like cholera. Under the provisions of this article, the perpetrator is considered to have committed a crime punish­ able under the law.71 Article 496 (2) addresses infringements related to public health. According to this article, a person who disposes animal carcasses, dirty materials or items

69 Art. 67, para. 1, 2 and 3 of the of the Public Health Law No. 89 of 1981. 70 Art. 105 of the of the Public Health Law No. 89 of 1981. 71  The old text of the article states that: Punishable by imprisonment for a term not exceeding one year or a fine not exceed­ ing one hundred dinars to anyone whose mistake caused the spread of serious dis­ ease that of harmful to the lives of individuals. However, the text of this article was amended during Paul Bremer’s CPA in Iraq in 2003. Art. (3) of the CPA Order amended the Penal Code and the Code of Criminal Procedure, No. 31 of 10 September 2003, and replaced it with the following text: Punishable by imprisonment for a term of fifteen years or a fine not exceeding one hundred dinars each of his mistake caused the spread of serious disease is harmful to the lives of individuals. If the act caused death or a permanent disability to a man, the penalty prescribed to the perpetrator as the crime of murder or crime in line with victimization as the case may be. See Iraqi Official Gazette No. 3980 of 10 September 2003, 31, available at: .

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harmful to public health in a river, conduit, drainage or any waterway may be subject to punishment.72 VIII. Concluding Remarks and Recommendations After presenting and analyzing a list of laws in force regarding water resources management in Iraq, we must now consider whether these laws are competent to manage water resources in Iraq or whether reform is crucial. As a general point of view, one may agree with the competency of the Iraqi legislature and laws on water resources, for the following reasons. Establishing two ministries, i.e. the Ministry of Water Resources (by Law No. 50 of 2008 by the Federal government) and the Iraqi Kurdistan Region’s Ministry of Water Resources (by Law No. 9 of 2006), which are directly involved with water resources management is a remarkable development in post-2003 Iraq. It shows that both the Federal Government and the KRG have intensified their works, projects and studies in order to generate solid strategies on how to meet 21st century water demands of the Iraqis as well as to protect waterways and the environment. It is evident that successive lawmakers in Iraq have shown a degree of aware­ ness pertinent to water governance in general and particularly to its protection in the country in various sectors. For example, it has been discussed how the Forests and Woodlots Law No. 30 of 2009 aims to protect waterways in article 9, and how the Environmental Protection and Improvement Law was passed to reduce water pollution by virtue of article 14 which categorizes pollutants and determines what is considered as harmful acts. Also, all the cited laws from the Public Roads Law, the Regulations on Preservation of Water Resources, the Law of the General Authority for Water and Sewage, to the Law on Monitoring Irriga­ tion and Small Dams Related Matters in Iraq, and including those of the Kurd­ istan Region are evidence of the degree of the Iraqi government’s seriousness in managing its national water resources. Needless to mention that article 110 of the 2005 Constitution is a landmark for the Federal Government’s dedication to water resources management in Iraq. Furthermore, the Regulations on Preservation of Water Resources (Law No. 2 of 2001) issued by the Iraqi Council of Ministers in 2001 constitutes a significant step taken by the Iraqi government for the new millennium. The policymakers understood just in time (if not too late) that it was imperative to integrate water 72 Art. 496 (2) was amended twice by the Revolutionary Command Council (RCC), Reso­ lution No. 77 of 14 January 1982, and by RCC Resolution No. 188 of 7 February 1984. See Iraqi Official Gazette No. 2982 of 27 February 1984, 139, Vol. 1, available at: .



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resources into the environmental, economic and social developments in Iraq. The growing phenomenon of water pollution alongside the scarcity of water resources was a warning for Iraqi policymakers to take the matter seriously. The regulation mainly focused on the management, utilization and preservation of water wealth. It established provisions on the discharge of wastes into public waters and deter­ mined how wastewater should be processed, disposed or recycled by encouraging public participation. However, there are indispensible multifaceted setbacks facing the Iraqi water laws that could bring their credibility into question, unless profound reforms are carefully planned and implemented, as discussed below. Firstly, most of the laws require practical and technical detail to achieve the objectives established by the set of obligations on water resources management. In addition, some of them have been drafted in a general style, missing an indepth, scientific dimension and detailed mechanisms. Certain overlaps between the new and preceding laws are observed. For instance, article 9 of the Regu­ lations on Preservation of Water Resources No. 2 of 2001 and article 10 of the Protection of Rivers and Public Water from Pollution No. 25 of 1967, and the Penal Code No. 111 of 1969 and its amendments, where the texts are very much similar to each other without cross-referencing. This phenomenon could cause confu­ sion among the public about which law should be applied first. Furthermore, insufficient literature, unreliable texts and legal documents on water resources management in Iraq have become a barrier for the legal analysts and experts in the field to contribute to and develop the discipline. Secondly, the general implementation of Iraqi national laws relevant to water resources is believed to be dismal. This can be attributed to a number of factors; primarily lack of adequate funding from the government and weak monitoring and follow-up procedures because of diverse political assessments by statesmen. Apart from that, no strong coordination between the different public sectors has been evident; such coordination could promote the successful implementation of the law on particular subjects. To remedy these concerns, a comprehensive review of the legal framework of water resource management in Iraq should be a priority of the legislature. Review is essential to keep these laws updated in a manner consistent with the condi­ tions of the water resources in Iraq, and in line with new data. Upon reviewing all the existing laws, it is highly recommended for the legislature to create a com­ prehensive legal framework for protecting water resources of the country, includ­ ing the Kurdistan region. The legislature should also clearly identify the role of the government, the rights of various end-users, and effective implementation mechanisms including penalties against infringements. Moreover, it should also be flexible and should be reviewed from time to time in light of the prevailing circumstances. Today, in fact, Iraq does not have sufficient surface water to meet its national demand. Recently, this has led to a growing dependency on groundwater. Thus,

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it is vital to create a robust legal framework for the existing surface water and groundwater rights. They are still largely open access resources to the public despite existing but ineffective regulations. Furthermore, the rules for granting licenses for digging wells in the Kurdistan region were enforced only recently. Yet, public understanding of rights to surface and groundwater dates back centu­ ries and is not well adapted to situations of water shortage. Moreover, the existing laws do not advocate good water governance for the present population of Iraq, nor do they provide incentives for economic use or for orderly transfers among sectors. The role of non-governmental organizations (NGOs) whose activities are in the field of environment and water resources are of great importance since their exis­ tence helps promote and enhance the awareness of society as a whole. According to the UN Global Environment Outlook Report 2000, while most regions are now trying to strengthen their institutions, regulations are reliant on voluntary action by the private sector and on more public and NGO participation. This develop­ ment is fed by the increasing complexity of environmental regulation and high control costs as well as the private sector’s demands for more flexibility, selfregulation and cost-effectiveness.73 Participation by NGOs and the whole com­ munity is increasingly viewed as a valuable part of any environmental protection program and could also play an integral role in Iraq. For example, if environmental education were introduced in the curriculum, right from primary school, it could pave the way for the NGOs to partake, sponsor and provide for a broader aware­ ness by carrying out activities on environmental protection inside the schools. If parts of these curricula would be devoted to the topic of water, its protection, pollution prevention and incorrect uses, this would be an immense achievement. Subsequently, this awareness would spread in communities throughout the coun­ try. This was one of the ways how public participation in environmental issues became viable in Western Europe, and there are positive trends following this example in Central and Eastern Europe.74 Therefore, it is highly recommended that a similar approach is introduced and encouraged in Iraq, principally focusing on saving fresh water and protecting waterways. Finally yet importantly, cooperation and coordination between the various governmental institutions could also be another significant impetus to serve this end, yet it needs to become obligatory by law in Iraq. When the law enforces scientific and technical research, exchange of information, technical means and methods of regulating water resources, the relevant sectors will duly observe their rights and duties. This will pave the way for the improvement of the current legal framework, or even the introduction of a new effective legal framework and wellstructured national water law for modern Iraq.

73 See UNEP, supra note 41, at 5. 74 Ibid., 8.

chapter ten

Water Management Laws in the Syrian Arab Republic Rana Kharouf-Gaudig*

I. An Overview of the Syrian Legal System The Constitution of the Syrian Arab Republic of 20121 provides for a republican system of government with the rule of law as its governing basis. The state has three branches: a legislative, an executive, and a judicial branch. The legislative authority is assumed by the People’s Assembly.2 The ­members of the People’s Assembly are elected by a public, secret, direct and equal vote, with a term of office of four years. In certain exceptional cases, legislative authority is also granted to the President of the Republic.3 The President of the Republic, with the Cabinet, exercises executive authority and heads the executive branch. He is elected by the people directly and appoints the Prime Minister and ministers. The judicial branch is independent and the Supreme Constitutional Court

* The author would like to thank Adele J. Kirschner for her kind assistance that has con­ tributed to the outcome of this article. 1  The Constitution of the Syrian Arab Republic was approved by Decree No. 94 of 27 Feb­ ruary 2012, which amended the provisions of the previous 1973 Constitution. 2 Art. 55 of the Constitution (2012), available at: . 3 Art. 113 of the Constitution (2012) stipulates: 1.  The President of the Republic assumes the authority of legislation when the Peo­ ple’s Assembly is not in session, or during sessions if absolute necessity requires this, or in the period during which the Assembly is dissolved. 2. These legislation shall be referred to the Assembly within 15 days of its first session. 3. The Assembly has the right to revoke such legislation or amend them in a law with a majority of two thirds of the members registered for attending the session, provided it is no less than the absolute majority of all its members. Such amend­ ment or revocation shall not have a retroactive effect. If they are not amended or revoked, they shall be considered approved.

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has jurisdiction to consider appeals regarding the election of the President of the Republic4 as well as members of the People’s Assembly.5 1. Administrative Division Syria is a unitary state with a central government. It has three levels of local government: provinces, departments and towns. Its 14 provinces are divided into districts, and the districts are divided into sub-districts (20 departments and towns divided into boroughs). Likewise, the 20 departments (which include Syria’s major cities) as well as the towns and municipalities are divided into neighbourhoods.6 Each administrative unit, such as provinces, cities, towns, and municipalities, has a legal personality and fiscal autonomy.7 2. Sources of Law and Hierarchy Legislation pertaining to water in Syria varies according to its legislative source. As the legal system in Syria is based on the Latin system regarding the classification of legal sources according to a binding force, the rules of governance are determined hierarchically, with international treaties and agreements ranking first, followed by the Constitution, laws, custom, independent judicial opinions, and Islamic doctrine. The Constitution ranks first in national law. It is followed by legislation (or statutory law, i.e. a set of written legal rules enacted by the legislature). Then come the regulations detailing, explaining, and implementing the laws passed by parliament. These regulations are issued by the executive branch, either by the President of the Republic (regulatory edicts) or by the relevant minister, public enterprises or local councils (regulatory decrees). II. National Laws Relating to Water Management The legal rules governing water management in Syria stem from multiple sources, including the Constitution, regular laws, regulations, custom, case law, and legal theory.

4 Art. 89 of the Constitution (2012). 5 The power to consider appeals regarding the election of members of the People’s Assem­ bly has been added as one of the jurisdictions of the Supreme Constitutional Court, after amending art. 49 (a) of the General Elections Law, under Decree No. 25 of 2012. 6 Art. 73 Local Administration Act (2011). 7 Ibid., art. 7.



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1. The Constitution The Constitution currently in force contains only two articles relating to water management.8 Article 14 states that: Natural resources, enterprises, institutions, and public utilities are publicly owned, the state shall supervise their investment and management for the benefit of all people, and citizens have a duty to protect them.

Likewise, article 27 of the Constitution provides that “environmental protection is the responsibility of the state and the community, and it is mandatory for every citizen”. The implementation of these articles is ensured by the so-called ‘Water Legislation’,9 which is described in the following. 2. Water Legislation The principle source of water law is Act No. 31 or rather the Water Legislation. Its adoption in 2005 represented substantial progress for the legislative framework concerning the protection of water resources in Syria. The law falls within the context of a reform initiative to update the laws in order to better respond to economic developments and environmental challenges such as climate change, desertification and their impact on water scarcity. Its adoption was an integral part of a series of modern laws dealing with water, most notably the Sanitation Act of 2004, the Environmental Act of 2002 (amended in 2004), and the Local Administration Act of 2011. The Water Legislation was notably passed in order to replace previous laws and regulations concerning water use and to achieve more consistency, since they had been a frequent subject of confusion for the authorities and institutions involved. The Water Legislation contains 57 articles divided into eleven chapters dealing with definitions; rules for water demand management; general provisions for the organization of its usage and utilization in a rational and orderly manner; protection of the water installations against tampering; preservation of the quality and the quantity of groundwater; promoting and increasing the efficiency of public irrigation and potable water networks; and waste reduction. Its provisions deal in particular with the following aspects, which aim at contributing to the sustainable development of water resources:

8 Constitution of the Syrian Arab Republic of 2012, supra note 1. 9 Enacted on 16 November 2005, available at: . English version available at: .

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a. Ownership Article 2 of the Water Legislation deals with the classification of water which is considered public property. This explicitly refers to all major water resources in the country including their various constitutive elements (tributaries, groundwaters etc.).10 Furthermore, the Water Legislation contains provisions relating to the establishment and liquidation of rights that are claimed to have been previously acquired.11 They set forth in detail the procedures and principles with respect to the legal action that must be undertaken by persons who claim to have acquired rights to public water, or rights to dispose or utilize it, whether by virtue of a custom or in accordance with legal documents, and to re-establish their rights.12 Concerned individuals can for example file a claim for compensation in relation to any irrecoverable ownership rights before a special committee, chaired by a judge. Whereas the committee is empowered to grant compensation, the amount is based on a suggestion from the Minister of Water Resources.13 b. The Relevant Administrative Authorities The Ministry of Water Resources (up until 2012 called the Ministry of Irrigation)14 is the main governmental agency charged with directly supervising water management in Syria. It is involved with the investment in public water systems and strategic planning for the water sector. The Water Legislation, under article 1, establishes another authority: the High Commission for Water. This represents the highest national authority responsible for formulating state water policy and adopting a strategy to implement it. The Commission is designed as a coordinating committee bringing together all ­authorities

10 According to art. 2 Water Legislation: The following shall be classified as public water property: Inland waters, sea water, the seashore, the seashore up to the farthest distance the sea waves can reach on land (. . .), Syria’s share of common international watercourses located within the borders of the Syrian Arab Republic, the direct buffer zone for water sources and main public water installations, provided it shall not be less than six meters. 11  Arts 7–8 Water Legislation. 12 Arts 4–19 Water Legislation, and arts 7–8 of the Implementing Instructions of the Water Legislation, enacted on 16 November 2005, available at: . For English version see . 13 See arts 7–8 Water Legislation. 14 The Ministry of Water Resources was established by Act No. 44 of 2012 to replace the Ministry of Irrigation (available at: ). The Water Legisla­ tion has not yet been adjusted accordingly and still mentions the Ministry of Irrigation. For more coherence in the following text, the Ministry of Irrigation will thus be referred to as the Ministry of Water Resources.



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involved in the management of the country’s water sector. This Commission15 is chaired by the Prime Minister or his authorized representative.16 The chairperson of the Commission can however invite whichever specialists he deems important to attend the meetings. The Commission meets once every six months, yet can also be called up whenever necessary. Another task of the Commission is to monitor the implementation of international law,17 in particular the terms of the UN Convention on the Non-Navigational Uses of International Watercourses18 with regard to waters shared with neighbouring countries. Article 1 of the Water Legislation entrusts the administrative tasks related to the management of Syria’s river basins to a single administrative entity called the Basin Management Commission. It is charged with implementing the water policy stipulated by the High Commission for Water for each basin. The Water Legislation has indicated the need for coordination with the rest of the relevant ministries when issuing instructions regulating the granting of licenses for investment in public water. To facilitate stakeholder synergy, the Water Legislation calls for the involved ministries and authorities to cooperate and coordinate their actions.19 For example, it explicitly calls for coordination between the Ministry of Water Resources and the other relevant ministries when issuing instructions regulating the granting of licenses for investment in public water.20 Moreover, the Water Legislation foresees public participation in water management by establishing Water Users’ Associations. These are non-governmental, civil cooperative organizations, the affiliation to which is mandatory upon beneficiaries. Water Users’ Associations are run by their members for their own benefit in order to achieve a better water management.21

15  The High Commission for Water is comprised of: the Minister of Irrigation (now Min­ ister of Water Resources) in his capacity as Vice-President; the Minister of Environ­ mental and Local Administration; the Minister of Agriculture and Agrarian Reform; the Minister of Foreign Affairs; the Minister of Industry; the Minister of Housing and Construction and the Chairman of the State Planning Commission as well as persons from non-governmental entities such as the President of the General Union of Farmers, and the President of the General Union of Women. Cf. Resolution 4679 issued by the Prime Minister on 23 October 2008 related to the amendment of para. 1 of Resolution 628 of 13 February 2007 regarding the reconfiguration of the members of the High Commission for Water. 16  Art. 1 Water Legislation. 17  Art. 1 Implementing Instructions of the Water Legislation and Resolution 628 of 13 Feb­ ruary 2007 related to the Executive Instructions of the High Commission for Water. 18  Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature 21 May 1997, not yet entered into force), 36 ILM (1997), 700 (UN Watercourse Convention). 19 Art. 50 Water Legislation. 20 Ibid., art. 24 (a). 21  Arts 45–48 Implementing Instructions of the Water Legislation.

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The Water Users’ Associations participate in water management including the management of irrigation systems and other water usage systems. Participation is two-pronged, i.e.: – First, participation on the part of beneficiaries themselves in activities among themselves; – Second, participation on the part of the executive (governmental) entities on one hand and water beneficiaries on the other hand. Participation among consumers shall take place through Water Users’ Associations, which they themselves shall form and run in order to achieve their interests, whereas participation between the executive entities and these Associations shall take place in various forms, i.e. ranging from making information available, to assigning management and devolving ownership to Associations under the supervision and control of governmental authorities. c. Water Demand Management and Resource Protection The Water Legislation provides for a number of measures to preserve water quality and quantity. To prevent uncoordinated well drilling, the Water Legislation requires the obtainment of a license for well drilling activities as well as for the installation of pumping equipment for public and private entities.22 According to article 23, this license needs to be obtained in advance and is liable to a fee which is collected upon issuance of the license.23 The law foresees an exception to prior obtainment in emergency cases with regard to wells being utilized for drinking water, provided that the Ministry of Water Resources is informed accordingly during the drilling process. This exception goes in line with other articles of the law granting priority to exploration activities regarding drinking water,24 such as article 43, which provides that in cases of necessity, subject to ministerial approval, public authorities may carry out drilling activities on a third party’s land, provided that priority is given to drinking water. Nevertheless, abuses of the drinking water and sanitation systems are common and illegal well drilling, in particular, is still a big problem in Syria, putting a lot of pressure on available groundwater resources. In an attempt to combat such abuses, the Water Legislation has introduced a water policing apparatus25 which is assigned with detecting contraventions of the Water Legislation. The unit is composed of personnel serving in the field of water resources and utilization,

22 Arts 23–34 Water Legislation. 23 Ibid., art. 34. 24 Arts 23–26 Implementing Instructions of the Water Legislation. 25 Art. 7 (2) Water Legislation.



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which can act in a judicial capacity and deliver reports to a public prosecutor to institute legal action.26 This mechanism thus allows the experts working in the pertinent institutions to take action against abuses of the water law, including the initiation of judicial proceedings. The law also imposes heavy penalties on anyone who harms water resources.27 For example, the intentional destruction or damaging of a water utility is punished between six months and one year of imprisonment and fined with 10,000 to 100,000 Syrian pounds. In line with this measure is the decision of the Syrian legislator in 2008 to exclude the possibility of invoking mitigating circumstances or even suspension of the sentence in relation to water-related crimes under the Syrian Criminal Code.28 In order to avoid water waste, well owners are required to use modern irrigation technologies in accordance with the specifications and decisions of the High Commission for Water.29 Moreover, water pumping is restricted or rather depends on water quotas30 which fix the quantity of water allowed to be pumped from a certain source and are licensed based on the potential water available in each basin and small drainage basin.31 Accordingly, article 28 requires all pumping equipment, including private household, to be equipped with water meters in order to control whether the amount of water being pumped remains within the quotas. A further measure particularly aims to protect water sources from pollution or depletion. It foresees the establishment of buffer zones of at least six meters around each water source within which it is forbidden to erect buildings or installations of any kind or to occupy the same.32 Finally, in order to improve water resource protection and prevent their pollution, the law also includes provisions addressing pollution. Article 22 (2) generally prohibits the use of sewage water and agricultural water for irrigation with the exception of cases in which the user has obtained a permit from the Ministry of Water Resources, the issuance of which again depends on the quantity and quality of the water in the drainage canal. Moreover the Implementing Instructions of the Water Legislation also require a mandatory periodic inspection to be

26 Ibid., arts 37, 38, 39, 40, 41 and 42. 27 Ibid., arts 35, 36. 28 Art. 1 Decree No. 23 issued on 28 April 2008 stipulates that the article under No. 35bis is to be added to Act No. 31 of 16 November 2005, and it reads as follows: Discretionary mitigating circumstances do not apply to offenses punishable under this Law, nor do the provisions of a suspended sentence as specified in Article 168 et seq. of the Penal Code. 29 Art. 52 Water Legislation. 30 Water quota is defined in art. 1 as the quantity of water allocated during the irrigation cycle to each hectare to be irrigated according to the adopted agricultural cycle. The quantity is estimated by m3/ha or by l/s/ha. 31  Art. 28 Water Legislation. 32 Arts 2–5 Implementing Instructions of the Water Legislation.

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conducted in order to assess the operating performance of the water systems for all usages including irrigation, drainage, and drinking water.33 3. Environmental Laws and Regulations a. The Environmental Protection Act The Environmental Protection Act No. 50 of 200234 consists of 37 articles divided into eight sections. Section one defines environmental pollution as any quantitative or qualitative change in the physical, chemical or biological characteristics of one or more elements of the environment, resulting from pollutants, leading to damage that threatens the health or life of humans, animals, or the safety of natural resources.35 Additionally, it defines environmental protection as a set of regulations and procedures, which ensure the continued balance of the environment and its developmental integration, and maintains a safe healthy environment to enjoy life, and benefit from the resources and property in the best possible manner.36 Section II addresses the duties of the General Authority for Environmental Affairs, which has legal personality and fiscal and administrative autonomy and is subordinate to the Minister of the Environment.37 The General Authority for Environmental Affairs aims to establish the basic rules for the safety and protection of the environment from pollution. Its duties38 include preparing the specifications and standards for various elements of the environment and laying the groundwork and procedures necessary to assess their environmental degradation; establishing an environmental databank, organizing it and following up on its development; and drafting legislation, regulations, and studies to ensure the preservation of the various environmental elements and methods of development. Article 15 provides that the General Authority shall also strive to strengthen relations between the Syrian Arab Republic and countries, bodies and international and regional organizations in matters, affairs and agreements relating to the preservation of the environment. Section III specifies how the General Authority is established, set up and managed. Section IV describes the duties of the Minister of Environment, which includes the task of monitoring the implementation of the laws and regulations relating to environmental matters.39 Section V covers the establishment of the 33 Art. 1 Implementing Instructions of the Water Legislation. 34 As amended by Act No. 17 of 2004, published in the Official Gazette No. 32 (2002), 2068 et seq., available at: . 35 Art. 1 Act No. 50 (2002). 36 Ibid. 37 Ibid., art. 2. 38 Ibid., art. 3. 39 Ibid., art. 12.



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Environmental Protection Council under the Ministry of Environment, its composition and duties.40 The Council is responsible for approving public policy for the protection of the environment and national strategy plans, and programs in accordance with the state’s general policy.41 It also decides on and approves any specifications and standard criteria relating to elements of the environment and pollution. Lastly, the Environmental Protection Council submits an annual report on the environmental situation to the cabinet. Section VI devotes special provisions to a fund for the support and protection of the environment.42 This, for example, includes the allocation of money for the treatment of damage to the environment or investments in environment friendly technology. Section VII specifies liability and compensation for environmental damages. Article 22 stipulates that the General Authority for Environmental Affairs and the competent authorities have a mandate to preserve water, air, soil, plants, animals, the environment, and sea life from pollution. Moreover it sets out the penalties for tort liability arising from negligence. Article 29 provides that anyone responsible for damage to the environment or to living beings, whether knowingly or out of negligence, will be held liable for the amount of damages that the General Authority for Environmental Affairs deems adequate to restore the situation to its previous state. Out of regard for the importance of the safety and preservation of the environment, the Act provides that offenses will be processed as a matter of urgency by the courts which may sentence the guilty party to more severe penalties than under any other law.43 b. The Sanitation Act The Sanitation Act of 2004 includes several provisions relating to water preservation.44 It generally prohibits the dumping of any kind of waste into rivers, watercourses and streams45 and provides for fining those who violate these provisions. The fines range from 1,000 to 3,000 Syrian pounds.46 In particular, the Act prohibits the dumping of waste, oil, grease, and similar liquids of all types into containers, bodies of water, public sewage, rivers, streams and their protected

40 The Environmental Protection Council replaced the Supreme Council for Environmen­ tal Safety whose formation is specified in Legislative Decree No. 11 of 1991. 41  See art. 17 Act No. 50 (2002), which reads that the fund shall be made up of “grants, donations and money offered by the Arab and international organizations, authorities and funds (. . .) in addition to the money allocated by the state”. 42 Arts 18, 19 Act No. 50 (2002). 43 Ibid., art. 32. 44 Act No. 49, issued on 12 May 2004, published in the Official Gazette Part 1 (2004), 2948 et seq. 45 Arts 6–9 Act No. 49 (2004). 46 Ibid., art. 38 (2).

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areas. It also prohibits any diversion of salt water to streams, lakes and rivers.47 Moreover it requires that medical waste liquids be treated before they are discharged into the public sewage network.48 Furthermore, the Act has incorporated the ‘polluter pays principle’ stipulating that the cost of disposing of toxic waste or hazardous materials is to be carried by the one who produced or generated it.49 In addition anyone who produces or generates industrial or medical waste should be responsible for any damage to the environment resulting from the waste,50 and the owners of installations and industrial plants and their directors and investors in the public, private and combined sectors are obliged to treat industrial waste (that is contaminated and harmful to the environment) prior to final disposal. c. The Local Administration Act The new Local Administration Act of 2011 modified the organizational and institutional structure of the Syrian administrative division and the administrative units.51 It established the High Council for Local Administration which is tasked to develop a national plan of local administration in Syria for the local councils. The Act is considered a paradigm shift because it responds to the need to encourage public participation in decision-making. It stipulates that local council members need to be elected directly by the people and creates ­high-ranking autonomous positions, such as, for example, the President of the Provincial Council who is independent from the Governor. Moreover it provides for the decentralization of powers and grants responsibilities to the local administration. It identifies the powers and authorities of the Councils of administrative units whose management was suffering from inconsistencies in the implementation instructions. The Councils are responsible for the formulation of short and long-term strategy plans for the local governments and for overseeing the transfer of duties from a number of provincial ministerial directorates, departments and public institutions to local authorities. The Act also foresees the creation of joint departments among the administrative units for the implementation of joint projects, as well as offices for the coordination of services among the parties concerned. Since the Local Administration Act has only recently been enacted, it is still difficult to determine the effectiveness of this reorganization of administrative units and its particular effect on water management. However, it is important to note the impact of the decentralization of powers and duties of administrative

47 Ibid., arts 6, 18, 27. 48 Ibid., art. 23 (h). 49 Ibid., art. 15. 50 Ibid., arts 8, 22. 51  Enacted on 23 August 2011 by Decree No. 107 of 2011.



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units for elaborating development plans, including water management. Through the transfer of powers from some ministerial directorates to local authorities, the latter are given the capacity to set up companies or enter into partnerships with public or private entities. Moreover, municipalities are allowed to launch investment projects at a rate equal to 25 % of their independent budget in order to improve the financial revenues of the administrative units. It is for the future to see what effects and results this transfer of powers will bring for the development of the administrative units in general, and what the envisaged increased civil society participation will bring for the country’s water management in particular, especially since the administrative units are responsible for the preservation of the environment from pollution. d. Other Legal Texts – Act No. 10 of 3 March 1972 relating to the Pollution of Regional Syrian Arab Waters and International Waters; – Act No. 18 of 1976 on Appropriation; – Act No. 3 of 1984 and its Provisions on the Reclamation of Agricultural Land; – Decree No. 7 of 1996 on the Costs of Reclamation of Agricultural Land; – Legislative Decree No. 8 of 1996 on the Cost of Irrigation; and – Legislative Decree No. 84 of 2005 on Public Construction Companies. III. Appraisal Syria’s national laws relating to water management have been continually improved over the last ten years, a development which can be observed from a vertical and horizontal perspective. From a vertical perspective, the water laws have been adapted towards more coherence with different levels of law, particularly international water law. As well as hierarchical reasons, national water law in Syria is subordinate to the international law; this development may be explained by the fact that most of Syria’s important water sources come from outside the country. This is not only a strong encouragement for legislators to keep relations stable with co-riparians and pay attention to the compliance with international conventions, but has also influenced the development of a national water law, which aims to be coherent with the objective of international law, i.e. the optimal management of water resources, avoiding of conflict and stakeholder cooperation.52 National water 52 For this reason, the national water laws make reference to the UN Watercourse Convention; see the duties of the High Com­mission for Water in art. 1 Implementing Instructions of the Water Legislation and Resolution 628 of 13 February 2007 related to the Executive Instructions of the High Commission for Water. With regard to this matter, it is important to emphasize the permanent reference of Syria to the UN

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laws are thus inspired from developments in international law. This can also be observed by the adoption of new trends and concepts related to international water management, such as the concept of integrated water resources management (IWRM). Elements of IWRM are reflected in the Water Legislation, which aims to achieve an optimal management of water quality and quantity in Syria. Another example of this new multilevel approach in the development of laws is the drafting of a technical national plan for the modernization of irrigation techniques (established by Legislative Decree No. 91 of 2005) which is in line with the Water Legislation’s provisions to employ modern methods of irrigation.53 Positive developments can also be observed from a horizontal perspective, particularly reflected in the efforts to improve stakeholder synergy and better coordination between the authorities involved in water management. In sum, it can be said that the revision and adoption of laws is not an easy task which has also caused problems in the past. Nevertheless, the current water laws are an important achievement towards an optimal management of water resources. Their success will however depend upon the strict implementation of the law, which is often the main difficulty.

Watercourse Convention of 1997 as a legal framework, which can be constructive for a definitive agreement in Tigris and Euphrates basins (in order to replace the current modus vivendi the Protocol of 1987), and it can be useful for building a legal base of sustainable development of water resources and ensure a strong foundation of peace between the riparian countries. 53 See arts 25, 52 Water Legislation.

CHAPTER ELEVEN

Legal Context in Water Management Policy in Turkey: Evolution of a Complex Framework in Three Stages Vakur Sümer*

I. Introduction Following the collapse of the Ottoman Empire and the subsequent War of Liberation (1919−1922), the Republic of Turkey was founded in 1923. The Republic tried to make a fresh start and adopted Western style legal regulations in order to develop the war-torn country. Water legislation was one of the areas the founding fathers tried to modernize. Still, some of the legislation (such as the Law on Waters of 1926) governing water management dates back to the early years of the Republic. Over time, many pieces of legislation have been adopted and water management in Turkey experienced many important changes. This contribution will entail an examination of the historical evolution including the changes and continuities of the legal regime for water management in Turkey. The methodology in analyzing the water related legislation in Turkey will be an examination of the content of the legal texts. Legal texts are important sources for delineating basic priorities and emphases of Turkish policymakers. Water laws generally reflect the compromise reached between different competing uses of waters which are represented by a number of interested parties in society. Thus, the nature of water management in a given country becomes visible in laws, by-laws, statutes etc. These are “the materials out of which the fields of visibility of government are literally constructed.”1 For Walters, the power of inscription lies in “grasping the mundane and generally ignored realm of practices which enable realities to be inscribed, and spaces of visibility assembled.”2 The legal texts perform their function not only by stating the basic purposes of the relevant policy, but also through defining and limiting the roles, duties, * E-mail: [email protected]. 1  W. Walters, “The Power of Inscription: Beyond Social Construction and Deconstruction in European Integration Studies”, Millenn. J. Int. Stud. 31 (2002), 83 (91). 2 Ibid.

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competences and responsibilities of public organizations involved in various water management issues. Within this context, studying the legal texts, one can have a perception of which water use is prioritized, how pricing instruments are utilized, which organizations are given a powerful status, or to what extent public participation is envisaged in policy making processes. In light of this, studying the wording of and changes in the legal texts, this contribution will analyze the fundamental elements that these legal texts contain. Analyzing the content of legal texts will provide insights into the continuing and changing priorities in Turkey’s water management policy. The basic arguments in this contribution are summarized as follows: The legal regime for water management in Turkey is characterized by the lack of a comprehensive legal framework, ambiguity in terms of ‘user rights’, and a variety of roles of responsible authorities which creates a complex and fragmented organizational structure. With regards to the protection of water quality and the issue of monitoring, legal regulations have not yet been translated into effective implementation and enforcement. Through an analysis of the legal water management policy and legislation of Turkey, three successive phases are recognizable. Beginning from the date of its establishment, Turkey is a country with its own political and economic setting which is characterized by its desire to deliver sufficient amounts of good quality water to satisfy its people’s and economy’s needs in terms of drinking water, water for irrigation and hydro-electric production.3 The first 30 years of the Republic (the first phase) comprised framework legislation aiming to provide a legal basis for Turkey’s water management policy (e.g. Law on Waters, Village Law, Law on Municipalities) and integrating the issue of public health. Individual uncoordinated projects were other major characteristics of this phase. Following the consolidation of the Republic, Turkey adopted a water management paradigm where ‘water resources development’ was prioritized. Particularly beginning from the mid-1950s, Turkey experienced a second phase, namely of systematic construction of physical water works aiming to benefit from its water resources (drinking water, irrigation, hydroelectricity) as well as to prevent dangers associated with water, such as floods. In this regard, the establishment of the State Hydraulic Works (DSI, Turkish acronym), the major organization for water resources development throughout the country, in 1954 can be regarded as the starting point for the systematic works for water resources exploration and construction.4

3 V. Sümer, “The European Union Water Framework Directive and Turkey’s Water Man­ agement Policy: An Analysis”, unpublished Ph.D. Thesis, Middle East Technical Univer­ sity, 2011, Ankara, 10, (on file with the author). 4 Ibid.



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By the early 1980s, increase of environmental awareness on the global agenda and its ramifications for the local setting, namely in Turkey, paved the way for enactments of legislation making the protection of the environment one of the basic fundamentals in water management policies. Thus with this third phase, the issue of water quality gained prominence, along with the continued prioritization of water resources development. The reference to ‘environment’ in the 1982 Constitution,5 the Law on Environment of 1983,6 the establishment of the Undersecretary for Environment, and the By-Law on Control and Prevention of Water Pollution (1988) are major examples of this era. Thus, along with the continued priority of water resources development, the 1980s witnessed the ascendance of ‘water quality’ issues in the enactments of a number of respective laws and regulations.7 Turkey’s developing relations with the EU also contributed to a rise of legal salience of the issue of ‘water quality’ in Turkey.8 Within this context, namely the gradual integration of environmental concerns into water management policy, it could be argued that water management legislation in Turkey had begun to be more ‘integrated’ when compared with the priorities of the 1950s up until the 1980s. II. Water Management in Turkey: Legislative Framework 1. Sources of Law In Turkey, sources of law can be divided into a number of categories: the Constitution, laws, decree-laws, regulations, by-laws, communiqués, circulars, international agreements, and customary law.9 With regard to water management, the three most often used categories of legislation are laws, decree-laws, and by-laws. Proposals for laws (‘Kanunlar’ in Turkish) are prepared by the relevant Ministry or the Council of Ministers. The draft law is then sent to Parliament by the Council of Ministers for evaluation where it is passed on to the Parliament’s related committee(s) (e.g. Legal Committee, Environmental Committee).10 Subsequently,  5 Art. 56 of the 1982 Constitution refers to the concept of ‘environment’.  6 In accordance with art. 31 of this law, several by-laws are enacted (By-law on Control and Prevention of Water Pollution of 1988, Official Gazette No. 19919 of 4 September 1988, is one of these by-laws).   7 Sümer, supra note 3.   8 W. Scheumann et al., “Trajectories of Turkey’s Water Policy”, in: A. Kibaroglu et al. (eds), Turkey’s Water Policy: National Frameworks and International Cooperation, 2011, xxvi.   9 K. Gozler, Hukuka Giris, 1998, 131–160. 10 The committees (‘Komisyon’ in Turkish) which constitute the foundation for the leg­ islative and supervisory activities of the Assembly are specialized committees. They undertake activities on various subjects and perform duties on behalf of the General Assembly. There are 17 committees in Parliament that have been established according

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the draft law is sent to the Parliament’s General Assembly for discussion. After the Parliament’s approval, it is sent to the President. Following the signature of the President, laws are published in the Official Gazette which lets them enter into force.11 In accordance with article 91 of the Constitution, the Parliament may authorize the Council of Ministers to issue decree-laws (‘Kanun Hükmünde Kararnameler’ in Turkish) which are also known as ‘decrees having the force of law’. For instance, the law establishing the Ministry of Environment was a decree-law (No. 443). Decree-laws enter into force on the day they are published in the Official Gazette. According to article 124 of the Constitution, the Prime Minister’s Office, ministries and other public authorities can publish written instructions on relevant laws and by-laws (‘Yönetmelikler’ in Turkish) in their own areas of authority, or they can explain the provisions of these by-laws. 2. Water Related Laws and Regulations a. The Constitution The Constitution of 1982, which is still in force, established two basic principles with regard to water in article 168. The first principle states that water is a public good under the state’s trusteeship. The second principle, accordingly, states that the authority to explore and manage water resources is vested in the state.12 Yet, article 168 also stipulates that the state can grant the right to explore and manage water resources to natural or legal persons for a definite amount of time.

to the provisions of the Constitution and the Parliament’s Rules of Procedure (‘İçtüzük’ in Turkish). The political parties, in proportion to the number of their members, are represented in the committees. According to art. 35 of the Rules of Procedure, commit­ tees may accept, amend, or reject the law proposals. Following the designated period (45 days for the main committee, to which the proposed law relates most directly; 15 days for auxiliary committees, to which proposed legislation is in relation), the gov­ ernment or those who proposed the legislation, may decide to transfer the proposal to the General Assembly. If the proposals are not discussed by the committee(s) within the designated periods, they are sent to the Consultative Committee (‘Danışma Kurulu’ in Turkish), an organ which is responsible for, inter alia, regulating the agenda of the General Assembly. The Consultative Committee then sends the proposal to the General Assembly (Parliament’s Rules of Procedure, available online at: ). 11 For a detailed review, see E. Özbudun, Anayasa Hukuku (Constitutional Law), 2003, 117. 12 Art. 168 of the 1982 Constitution is entitled “Exploration and Management of Natural Properties and Resources”.



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The modern Turkish Constitutions have differed from previous laws such as the Mecelle13 in terms of their understanding of water. The Constitutions of 1961 and 198214 left the ‘individualist’ (‘ferdiyetçi ’ in Turkish) and ‘private law’ priorities aside and regulated the legal aspects of water on public law grounds only. The economic and social problems of the 20th century (e.g. migration to urban areas, high rate of population increase.) as well as goals designated in ‘development plans’ necessitated a rational utilization of water resources, which was also made possible by the technical possibilities of the era. Thus, re-assessment of water resources within the context of public law became essential.15 b. The Law on Waters The first specific law on water enacted in the Republican era is the Law on Waters, No. 831 which entered into force on 10 May 1926. It is a relatively short law with only nine articles. It stipulates in article 1 that the responsibility for supply and management of water resources to towns and cities lies with the municipalities, whereas in the villages, this authority will be performed by the Village Council of Elders (‘Köy Ihtiyar Heyeti’ in Turkish), in accordance with the Village Law, No. 442.16 Projects in municipalities aimed at the (re)construction or modification of water related infrastructure will be approved by the Ministry of Health and Social Aid (‘Sihhiye ve Muavenet-i İctimaiye Vekaleti’ (later, ‘Saglik ve Sosyal Yardim Bakanligi’) in Turkish). In villages, local health officials shall be responsible for the control and approval of these kinds of projects. Overall, along with the Prime Minister’s Office, the Ministry of Interior and the Ministry of Health and Social Aid are cited as the responsible ministries for the execution of this Law. Although officially still in force, the Law on Waters has in the meantime lost its practical relevance due to the enactment of new laws and institutional changes in the water sector. Nevertheless it is remarkable in its approach to water supply as it attributes great importance to matters of health, probably due to the poor quality of water concomitant to the impaired water infrastructure of the newly born Republic. Given the fact that the authority to approve of water projects belonged to the Ministry of Health and Social Aid, this law also demonstrates that at that

13 Mecelle (‘Mecelle-i Ahkam-ı Adliyye’ in Turkish) was the Civil Code of the Ottoman Empire in the late 19th and early 20th centuries. It entered into force in 1877, following lengthy preparations. It was essentially an attempt of codification of rules of Sharia’a and customary rules. It remained in force until 1926. 14 In the 1924 Constitution there was no water related article. 15 D. Yildiz / Ö. Özbay, Su ve Toprak (Water and Soil), 2009, 51. 16 Act No. 442 entered into force on 7 April 1924, Official Gazette No. 68. According to art. 13 of this law, supply of water to villages and protection of villages’ water were among the compulsory duties of villagers.

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time Turkey lacked engineering expertise and a water specific administrative organization or approach to water infrastructure development. c. The Civil Code The Civil Code is another fundamental legal text which contains water specific norms. In 1926, Turkey adopted a Civil Code (‘Türk Kanun-i Medenisi’ in Turkish),17 which was adapted from the Swiss Federal Civil Code of 1912. Article 641 of the Civil Code (1926) stipulates that any unclaimed property belongs to the state and that water is a public good available for public use. This clarification was deemed necessary because the Law on the Implementation of the Civil Code18 explicitly abolished the Mecelle, which had accepted historic water rights granting private ownership over water resources. However, in spite of article 641 of the Civil Code, no legal regulation has since been enacted which clarifies the management of public surface water.19 Furthermore, article 644 of the Civil Code regulated springs as a subject of private ownership. But many springs turn into a body of surface water (such as creeks) and could then become a subject of public property.20 As a result, the problems arising from the lack of respective regulations which would delineate the limits between the ‘private’ and ‘public’ domains are hitherto resolved by courts. Since the Civil Code respects customs, traditions and sustained practices as reference points, courts’ decisions often refer to them resulting in case-specific or ad hoc formulations. This practice led to varying decisions with some courts granting private water rights to public surface waters and allowing them to be registered in the cadastral registry.21 Waters recorded in the cadastral registry are recognized as private waters which gives the owner the right to sell or transfer those waters.22 According to the renewed Civil Code (2001)23 water resources fall in two categories. The first category concerns the public water resources and the second concerns water resources in the domain of private law and private ­proprietorship. 17  Act No. 743. 18  Art. 43 of Act No. 864, Official Gazette No. 402 of 29 May 1926. 19  Yildiz / Özbay, supra note 15, at 53–54. Also see I. Duygulu, “Su” (water), online paper, available at: ; M. Edip Dogrusöz, Sular Hukuku (Water Law), 1997, 50; and A. Kibaroglu / A. Baskan, “Turkey’s Water Policy Framework”, in: Kibaroglu, supra note 8, 4. 20 For a discussion on related jurisprudence of the Supreme Court (‘Yargitay’ in Turkish), see E. Arsebuk, “Yargitay Birinci Hukuk Dairesi: Kaynak ve Yeralti Sulari”, AUHFD 8 (1951), 733 (738). 21  For a detailed account on these varying decisions, see Yargitay Buyuk Genel Kurulu, “Yargitay İctihadi Birlestirme Karari”, 1985/1 E, 1985/4 K, 29.04.1985, available at: . 22 Duygulu, supra note 19. 23 Turkish Civil Code, Act No. 4721, Official Gazette No. 24607 of 22 November 2001.



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This categorization can be inferred from article 715 of the Civil Code (2001) which reads “the assets under nobody’s possession and the commodities at the service of the public shall be under the command and possession of the Government”.24 As a second category, article 756 of the Civil Code (2001) regulates springs as a subject to private ownership.25 The article specifies that “any spring is an integral part of the land, the ownership of a spring may be allowed only together with the ownership of the land.”26 According to Özdemir Özbay, a former DSI legal adviser, articles 715 and 756 should be assessed in conjunction, meaning that, except for privately owned springs, surface and groundwater resources cannot be owned but are subject to user rights which are granted for beneficial use only, such as domestic and agricultural use, fishing, hydropower generation, industry and mining, transportation, and medicinal or thermal uses.27 This ­understanding was later reinforced by two laws. First, by the enactment of Act No. 138,28 which amended article 679 of the Civil Code (1926).29 Groundwater was defined as public water and was placed under the state’s trusteeship. Second, as explained below in detail, Act No. 16730 further stipulated that groundwater be regulated according to the principles of public law.31 With springs thus being subject to private ownership, one needed to find a way to protect public interest, in particular drinking water supply and access to these water sources.32 For Dogrusöz, regarding springs as a subject of private ownership is contrary to a modern understanding of the law and technical realities.33 However the By-law on Water Intended for Human Consumption (‘Insani Tüketim Amacli Sular Hakkinda Yönetmelik’ in Turkish) which was adopted on 17 ­February

24 A. A. Coskun, “Water Law: the Current State of Regulation in Turkey”, Water Interna­ tional, 28: 1 (2003), 70 (70). 25 Similar to art. 679 of the Civil Code (1926). 26 Coskun, supra note 24, at 74. 27 Ö. Özbay, Türkiye Su Mevzuatinin Gecirdiği Evreler ve Günümüzde Durum (Stages of Turkey’s Water Legislation and Today’s Situation), available at: . 28 Act No. 138, Official Gazette No. 10666 of 23 November 1960. 29 According to art. 679 of the Civil Code (1926) springs (‘kaynaklar’ in Turkish) fall into the category of private waters because springs constitute the indispensable elements of the land concerned. Doğrusöz emphasizes that as methods of hydrological and geo­ logical surveys improved, the physical relations between the springs and groundwater, and the significance of groundwater was acknowledged accordingly. Also see A. Demir, Türkiye İc Sularindan Faydalanma, 1963, 85. 30 Act No. 167, Official Gazette No. 10688 of 23 December 1960. 31  Yildiz / Özbay, supra note 15, at 55. 32 Dogrusöz, supra note 19, at 49. For an early account on the problems arising from the private ownership of springs, see Arsebuk, supra note 20. 33 Dogrusöz, supra note 19, at 50.

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200534 established significant mechanisms of control for spring water.35 This somewhat eliminated the concerns over the issue of ‘public interest’. According to this by-law, inspectors from the Ministry of Health will control spring water facilities annually. Additionally, the provincial units of the Ministry of Health will be responsible for controlling the quality of this water in three month ­periods.36 Moreover, article 24 of this by-law stipulates that ‘spring protection zones’ (‘kaynak koruma alani’ in Turkish) shall be established by a council consisting of the director of the Provincial Directorate of the Ministry of Health (or one of his/her deputies), the head of the unit of food and environmental control, a civil engineer, a mechanical engineer, a geological engineer, a chemical engineer, a medicinal technician, and an expert from the Public Improvement Directorate (‘Imar Müdürlügü’ in Turkish). Any activity with a risk of deteriorating the quality of spring water is prohibited within these zones.37 To conclude, the Civil Code prioritizes the ‘public’ nature of water resources yet also respects historic rights and private ownership. Therefore, it tries to seek a balance between ‘public’ and ‘private’ interest. As the question of springs demonstrated, some exceptions to the public ownership of water in the Code created problems which were settled by courts afterwards. These problems became protracted and attempts were made to resolve them by legislative means in the 2000s. Furthermore, the Civil Code has suffered from the problems arising from the intensification of competition over limited water resources by a rapidly increasing population. As a consequence, the need for a clear legal delineation of the boundaries between the ‘public’ and ‘private’ spheres has gained prominence in the debates around water management. The Civil Code is, thus, to be regarded as a progressive, yet not finalized step towards a comprehensive and modern legal approach to water management in Turkey. d. Act No. 6200 on the Organization and Duties of the State Hydraulic Works Act No. 6200 on the Organization and Duties of the State Hydraulic Works (‘Devlet Su Isleri’, acronym DSI in Turkish)38 of 1954 empowers DSI to coordinate

34 By-law on Water Intended for Human Consumption (‘Insani Tüketim Amacli Sular Hak­ kinda Yönetmelik’ in Turkish), Official Gazette No. 25730 of 17 February 2005. This bylaw was adopted within the framework of harmonization with the EU Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consump­ tion, EU OJ L/330/32 of 5 December 1998. 35 The exceptions to this by-law are natural mineral waters and waters used for medicinal purposes (such as thermal waters), art. 2 which is in line with art. 3.1 of the EU Council Directive 98/83/EC, supra note 34. 36 Art. 46 of the By-law on Water Intended for Human Consumption, supra note 34. 37 Ibid., art. 24. 38 The Act was adopted in Parliament on 18 December 1953 and was published in Official Gazette No. 8592 on 25 December 1953.



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water use at the national level.39 Article 1 of the Act states the basic purpose of the establishment of DSI: “to prevent the damages of, and to multi-dimensionally benefit from surface and groundwater”. DSI was first established as an institution under the Ministry of Public Works (‘Bayindirlik Bakanligi’ in Turkish) and now it operates under the Ministry of Forestry and Water Affairs (MoFWA). Article 2 provides a long list of duties and powers of DSI, such as constructing dams, building flood control facilities, equipping land with irrigation facilities, reclaiming swamps, generating hydroelectric power, improving rivers for navigation, carrying out all kind of related surveys, projects and construction, and executing the duties of operation, maintenance, and repair of the facilities. It is important to note that Act No. 6200 does not explicitly give DSI a mandate to manage water resources on the basis of river basins.40 Its regional directorates are strictly organized along administrative boundaries and Act No. 6200 does not recognize the ‘river basin’ as a unit of operation.41 Rather, its basic aim is to empower DSI with developing Turkey’s water resources with a mandate limited to the construction and management of water infrastructure. The focus of this Act clearly lies in the prioritization of the construction of physical waterworks mainly for the provision of water for drinking, irrigation and energy production, as well as flood control. These comprise the ‘core’ duties of DSI which are formulated around the themes of “benefitting from” and “preventing the damages of ” water resources. A set of auxiliary duties surround these ‘core’ duties. These auxiliary duties include conducting projects and project surveys, the operation, maintenance, and repair of the facilities, and other monitoring activities. Therefore, Act No. 6200 placed greater emphasis on the development of ‘water quantity’ over the improvement of ‘water quality’. With regard to the needs in the mid-1950s, prioritization of ‘water quantity’ development was a rational decision since, according to Özbay, at the time water resources were undeveloped, yet available in abundance relative to the population and its water demands. Indeed, the paradigm of time ‘hydraulic mission’42 had produced some model institutions responsible for the construction of dams and irrigation networks,43 creating a sizeable increase in agricultural production and, thus, in people’s wealth. Since 39 Özbay, supra note 27. 40 Yildiz / Özbay, supra note 15, at 75. 41  This is (partly) due to the fact, that management on a river basin basis (on this issue, in particular with relation to the Water Framework Directive, see U. Beyerlin, “EU Water Law and its Relevance for the Euphrates and Tigris Region” in this book) encompasses a wider range of management issues (such as public participation and land-use plan­ ning) which would go well beyond DSI’s mandate. DSI’s role is limited to construction of water infrastructure only. 42 J. A. Allan, “Integrated Water Resources Management is a more Political than a Tech­ nical Challenge” in: A. S. Alsharhan / W. W. Wood (eds), Water Resources Perspectives: Evaluation, Management and Policy, 2003, 9–23. 43 The most notable example was the Tennessee Valley Authority in the USA.

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Turkey was still lacking the essential water related infrastructure necessary for such an economic and social development, state officials were of the opinion that the creation of an authority capable of systematically developing water resources for the benefit of the country and its people was indispensable. Hence, as the major output of this thinking, Act No. 6200 established DSI to cater to these needs. However, today authorities regard it as essential to adopt a comprehensive ‘new’ water law which clearly defines the river basin management approach. This could be made possible by determining a central authority for water management activities related to licensing, regulation, and control of water uses.44 e. Act No. 167 on Groundwater Act No. 167, the so-called ‘Groundwater Law’, entered into force on 23 December 1960.45 Article 1 of the law states that “[g]roundwaters are public waters and under State trusteeship.” Investigation, utilization, protection, and respective licensing of these waters is subject to this law. Generally, the Act empowers DSI to conduct project works concerning groundwater and to drill or have deep wells drilled, to transfer or lease deep wells, to protect and record groundwater, and to grant licenses for respective project works as well as the use, rehabilitation and modification of deep wells. Upon determination of their boundaries and characteristics, followed by a proposal by DSI, the relevant Ministry46 can declare ‘groundwater utilization areas’ (‘Yeralti Suyu İsletme Sahalari’ in Turkish) (article 3). Within these areas, the number of wells, their location, depth, and other properties, as well as the amount of water to be withdrawn are determined by DSI. According to article 5, apart from these declared groundwater utilization areas, every landowner has a right to explore and utilize the groundwater within his/her land. The amount of groundwater that can be used by a landowner is limited by the term “sufficient for his/her useful needs”. The amount “sufficient for (. . .) useful needs” is determined by DSI on the basis of opinions issued by the relevant Ministries.47 44 Yildiz / Özbay, supra note 15, at 75. 45 Groundwater Law, Official Gazette No. 10688 of 23 December 1960. 46 Ibid., art. 3 does not specify the Ministry. However, the Statute on Groundwaters, in Official Gazette No. 10875 of 8 August 1961, states that the Ministry of Public Works (‘Bayindirlik Bakanligi’ in Turkish) will decide on the Groundwater Utilization Areas. 47 Neither Act No. 167, supra note 30, nor the Statute on Groundwaters, supra note 46, refers to these Ministries. However, the Statute on Groundwaters specifies that the use­ ful needs of the following water uses will be evaluated in coordination with the relevant ministries: drinking water, water used for animals, municipal services, irrigation activi­ ties, and water used for mining and industrial activities or sporting facilities. Therefore, the relevant ministries may include the Ministry of Interior, the Ministry of Health, the Ministry of Environment and Forestry, the Ministry of Youth and Sports, the Ministry of Agriculture and Rural Affairs, the Ministry of Public Works and Settlement, and the Ministry of Industry and Trade, depending on the water use. Although these Ministries



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Act. No. 167 is supported by a statute (‘Yeralti Sulari Tüzügü’ in Turkish), which entered into force in 1961.48 It governs the possibilities to benefit from a neighboring groundwater resource in case there is no water available on a territory or when the cost of extracting the groundwater in an area is excessively high. With regard to the implementation of Act No. 167, the increasing number of use applications poses problems. Although the number of applications exceeds the available reserves, the Act does not address such discrepancies. As it is built upon the logic of ‘first come, first served’, it is unable to satisfy the needs of ­newcomers.49 Another significant problem related with the Act, or rather groundwater in general, is the widespread phenomenon of illegal wells. In this regard, it has been argued by experts that a revision of Act No. 167 should be made which would contain more dissuasive provisions against illegal well drilling.50 In short, given the legal inconsistencies exacerbated by a lack of effective monitoring,51 it has been argued that the groundwater management in Turkey remains ‘anarchic’.52 DSI has acknowledged the need for a revision of Act No. 167.53 Finally, Act No. 167 (along with Act No. 138, which excluded groundwater from the realm of ‘private water’) is significant in the sense that it reinforced the status of groundwater as public water and authorizes DSI as the single authority for managing it.54 In terms of responsible authorities this presented quite a contrast

may be involved in the determination of useful needs, in practice most of the decisions are reportedly determined by the Ministry of Industry and Trade and the Ministry of Agriculture and Rural Affairs. (E. Immet, Branch Manager, Groundwaters and Geotech­ nic Branch, DG XI, DSI, Edirne, personal interview, Edirne, October 2010). 48 Statute on Groundwaters, supra note 46. 49 Immet, supra note 47. 50 USIAD, Su Kaynaklari Bakanligi Kurulus Kanunu Tasari Taslagi Önerisi (Proposal for Establishment of Water Resources Ministry), Ada Strateji, 10 April 2010, 24. 51  Apart from this problem, as the major causes of problems in quality monitoring, Yalcin Özkapitan (Director of the Quality Control Laboratory at DG XI. of DSI, Edirne) men­ tions the lack of funding and personnel. For instance, the analyses of groundwater in terms of pesticide contamination could only be made at a laboratory in Ankara (per­ sonal interview, October 2010). The detrimental impacts of inefficient monitoring of groundwater quality are empirically demonstrated through case studies. For instance see, M. Kaplan et al., “Antalya—Kumluca Yöresi Kuyu Sularinin Nitrat İcerikleri”, TURK J AGRIC FOR 23 (1999), 309. 52 World Bank, Irrigation and Water Resources with a Focus on Irrigation Prioritisation and Management, Water Resources and Institutions Working Paper, 2006, 69. 53 Immet, supra note 47. 54 With the exception of spring waters (see above). In this respect, an official report drafted by a group of experts (‘Özel İhtisas Komisyonu’ in Turkish) recommended that ‘spring waters’ should also be brought under the framework of Act No. 167, supra note 30. See Republic of Turkey, State Planning Organization (‘Devlet Planlama Teskilatı’ in Turk­ish), Dokuzuncu Kalkinma Plani, Toprak ve Su Kaynaklarinin Kullanimi ve Yönetimi, Özel Ihtisas Komisyonu Raporu, 2007, 92.

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to the multiple authorities involved in surface water management.55 However, this clear-cut responsibility for groundwater management created by Act No. 167 did not last long and was changed by several subsequent enactments of legislation. According to Özbay,56 this was mainly caused by the subsequent enactments of Act No. 3202, which instituted the General Directorate of the Rural Services (GDRS), and Act No. 2560, which introduced the Istanbul Water and Sewage Administration,57 two new authorities also operating in the realm of Act No. 167. In sum, at its time of adoption, Act No. 167 was one of the laws which largely contributed to establishing the supremacy of DSI with regard to water management policy in Turkey. In this respect, it can be seen as complementary to the framework that was established by Act No. 6200. However, the uncoordinated subsequent passing of new legislation has had a negative impact on the management framework created by these Acts, which ultimately necessitates a reappraisal of Act No. 167. f. Act No 1053 on Supply of Drinking, Domestic, and Industrial Water According to the Law on Supply of Drinking, Domestic, and Industrial Water to Cities with Municipalities, which entered into force on 16 July 1968,58 DSI is entrusted with the provision of water to cities with more than 100,000 inhabitants. For this it shall construct dams and transmission lines, water treatment plants, and water storage facilities, provided that the government respectively authorizes DSI and that the city council concerned also approves. In 2007 the population criterion was amended. The amending Act No. 5625,59 repealed the population criterion making DSI responsible for the water supply to all 3,225 Turkish municipalities. This Act has largely extended DSI’s duties and is seen as

55 It is asserted that Act No. 167, supra note 30, is more ‘explicit’ than Act No. 6200, supra note 38, and ‘does’ give DSI powers to control the groundwater resources (World Bank, supra note 52, at 69). 56 Özbay, supra note 27. 57 Authorities of the Water and Sewage Administrations are to take legal, technical and administrative measures for the prevention of groundwater pollution and a decrease in groundwater quantity. Supplying potable water to rural communities by drilling groundwater wells is one of the main duties of the Special Provincial Administra­ tions after the abolition of the GDRS (2005). It does not receive licenses to provide groundwater, according to its organizational law. See F. Vligthenhardt et al., “A New Approach for Groundwater Management in Turkey: A Groundwater Management Plan according to EU Groundwater Directive (80/68/EEC) and Water Framework directive (2000/60/EC)”, Paper presented at International Congress on River Basin Management, 2007, 68−69. 58 Official Gazette No. 12951 of 16 July 1968. 59 Official Gazette No. 26504 of 26 April 2007.



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complementary to Act No. 6200 establishing DSI. Yildiz and Özbay argue that the aims of the latter are supported by Act. No. 1053.60 Act No. 1053 is notable in respect of its incorporation of ‘waste water treatment’ into the water management policy. It reflects the increasing salience of urbanization in the water management context in Turkey in the late 1960s. At the time, due to the continued migration from rural areas to cities, the need for water related infrastructure in urban areas was high on the political agenda. As the municipalities were unable to cope with this due to insufficient financial and administrative capacities, DSI, with its experience in construction works, was selected as the appropriate authority to realize these works. This is another reason for the prominence of DSI in water management issues. This evolving stronghold of DSI was later criticized by those who demanded a more de-centralized water management. Next to the previously discussed acts (Act No. 6200 and Act No. 167), Act No. 1053 is the third major law which shaped the important role of DSI in water management issues. However, the coherent framework created by these acts was damaged by subsequent legislation which created exceptions and dispersed the duties formerly handled by DSI among a number of institutions. The second problem regarding this framework is related to the fact that Act No. 1053 was not updated according to changing needs. For instance, the stipulations related to water quality monitoring, which gained significance as a result of the increased industrialization and urbanization, were not incorporated into the subsequent legal framework. Pollution was instead addressed by a separate body of by-laws, which have been enacted since the late 1980s.61 g. Act No. 2560 on the Establishment and Duties of the Istanbul Water and Sewage Administration Act No. 2560 on the Establishment and Duties of the Istanbul Water and Sewage Administration (ISKI),62 commonly known as the ISKI Law, established an autonomous institution with responsibility for the planning, design, construction, and operation of all water supply and sewerage services in the metropolitan area of Istanbul.63 The mandate of ISKI was altered by Governmental Decree No. 56 of 7 February 198364 which amended Act No. 2560. With the reorganization of the Istanbul Municipality as a metropolitan municipality in 1984, ISKI was

60 Yildiz / Özbay, supra note 15, at 65. 61  Sümer, supra note 3, at 171. 62 ISKI is the Turkish Acronym for ‘Istanbul Su ve Kanalizasyon Idaresi’. Act No. 2560, Official Gazette No. 17523 of 23 November 1981. 63 Ibid., art. 1. 64 Yildiz / Özbay, supra note 15, at 138.

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s­ ubordinated to the Istanbul Metropolitan Municipality as a public entity with an independent budget. The establishment of ISKI can be seen as a turning point in Turkey’s water policy because the way of organizing water and sewerage administration through autonomous municipal authorities was used as a model for other metropolitan municipalities, such as Ankara in 1987 and Izmir in 1989. There are currently 16 water and sewerage administrations within metropolitan municipalities.65 In order to fund water infrastructure, metropolitan municipalities and their subordinate organizations began to look for possibilities beyond the Bank of Provinces framework66 and started to finance large-scale urban infrastructure investments through utilization of foreign loans, which ultimately resulted in an increase in privatization of municipal services.67 Therefore, the ISKI Law represents the beginning of an era in which decentralization caused pressure to privatize. As a consequence, it could be argued that decentralization of water services in Turkey has gone hand in hand with the privatization of public services. h. Act No. 2872 on the Environment The Law on the Environment was adopted on 11 August 1983.68 It defines the basic principles69 and concepts70 of Turkish environmental policy and introduces measures for a number of mechanisms concerning the protection of the environment and the prohibition of pollution. According to the framework drawn by the Act, ‘environmental protection’ and ‘prevention of pollution’ are the two pillars that Turkey’s environmental policy is built upon. The authority to control and enforce this law was given to the General Directorate on Environment71 which operated under the aegis of the Prime Minister’s Office. In 1989, an UnderSecretariat (‘Müstesarlik’ in Turkish) was founded and served with this mandate until the establishment of the Ministry of Environment in 1991. Additionally, according to article 24, the metropolitan municipalities (within their borders), the coast guard (‘Sahil Güvenlik’ in Turkish), the Provincial Governors and the Provincial District Governors (‘Kaymakam’ in Turkish) have authority to impose

65 T. Cinar, “Privatization of Urban Water Sewerage Services in Turkey: Some Trends”, DIP 19 (2009), 350 (351). 66 The Bank of Provinces is a public bank which was founded in order to provide credits for municipalities for infrastructure investments. 67 Çınar, supra note 66, at 354. 68 Act No. 2872, Official Gazette No. 18132 of 11 August 1983. 69 Ö. Bilen, Türkiye’nin Su Gündemi: Su Yönetimi ve AB Su Politikalari, 2009, 291. 70 Art. 2 provides definitions of the following concepts: ‘protection of environment’, ‘ecological balance’, ‘environmental pollution’, ‘polluter’, ‘waste’, and ‘receiving body’ (which stands for ‘receiving water body’). 71 Art. 12 of the Law on the Environment, supra note 69.



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fines against polluters. Yet, the latter three can only impose fines outside metropolitan municipality borders.72 The law also acknowledges the principle of ‘sustainable development’, although the very word ‘sustainable’ is not mentioned in the text. Article 1, which states the purpose of the Law, refers to the measures aiming to protect and improve today’s and future generations’ levels of health, civilization and their standard of living. The law also seeks a balance between economic and social development goals of the country as well as environmental measures.73 It can thus be argued that the principle of sustainability was implicitly adopted by Act No. 2872. Furthermore, it adopts an integrated approach to environmental protection and the prevention of pollution; article 3 (g) requires a ‘holistic’ implementation of respective measures. Act No. 2872 created significant implications not only because it was a turning point in terms of the environmental policies in general, but also because it marked the start of a new phase in Turkey’s water management policy. The issue of water quality gradually gained significance in the management of the country’s water resources. The emphasis on the concepts of ‘protection of the environment’ and ‘prevention of pollution’ appeared as two new beacons to concentrate on for the water management policy in Turkey. Within this framework, most of the subsequent water quality legislation, including the by-law on Water Pollution Control (1988) and amendments to it (2004, 2008), as well as the Environmental Impact Assessment by-laws (1993), was enacted within the context defined by Act No. 2872. i. Decree-Law No. 443 and Act No. 4856 on the Establishment of the Ministry of Environment and Forestry The Ministry of Environment was established by Decree-Law No. 443 which was adopted on 21 August 1991.74 In 2003, the Ministry of Environment and the Ministry of Forestry were merged into a single Ministry, the Ministry of Environment and Forestry (MoEF) through Act No. 4856 on the Organization and Duties of the Ministry of Environment and Forestry.75 Concerning the MoEF’s responsibilities related to water management, Act No. 4856 has led to an increase of responsibility when compared to Decree-Law No. 443. The water related responsibilities of the MoEF are mainly relevant to the area of managing ‘water quality’. They are listed in article 9 of the Act. The

72 Ibid., art. 24 (b) and (c). 73 Ibid., art. 1. Art. 3 (b) also mentions the need for calculations of both positive and nega­ tive impacts of environmental measures, considering the economic development goals, and cost-benefit analysis of these measures. 74 Decree-Law No. 443, Official Gazette No. 20967 of 16 August 1991. 75 Act No. 4856, Official Gazette No. 25102 of 8 May 2003.

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major authority involved in executing related tasks is the General Directorate of Environment Management. Analysis of these responsibilities will help us to view the main approach of Turkish lawmakers towards the issue of water quality in particular, and water management paradigms in general. Article 2 mentions the MoEF’s overarching duties in a broader sense, while article 9 provides, inter alia, the water specific duties of the MoEF and its subordinated unit, the General Directorate of Environmental Management. Finally, while article 2 enumerates the broad duties of the MoEF, it repeatedly emphasizes the ‘development’ perspective, i.e. the prioritization of water development works. According to article 9, the General Directorate of Environment Management is responsible for improving the quality of surface and groundwater as well as protecting them from further pollution. Not surprisingly, the responsibilities of the MoEF concern the ‘water quality’ aspect of water management. However what is striking is the Act’s emphasis on an ‘integrated management’ based on a river basin approach76 a concept adopted by the EU’s Water Framework Directive (WFD).77 It is important to note that this approach was not yet contained in Decree-Law No. 443. Therefore, it can be concluded that from 1991 to 2003 there was a visible shift and extension of the responsibilities of the MoEF, making them compatible with the goals of the WFD in a broader perspective. However, as mentioned above, the numerous emphases on ‘development’ in article 2 possibly demarcate the boundaries for a water quality oriented approach of the law. In 2011, the MoEF was abolished and its responsibilities were split between two newly created ministries: the MoWFA to which DSI is attached (therefore DSI related authorities and responsibilities rest with this ministry), and the Ministry of Environment and Urban Planning (responsible for industrial wastewaters, coastal waters and bathing waters). Although a specific ministry for water affairs was established for the first time, the concomitant mandating of the Ministry of Environment and Urban Planning with several issues of water quality management has only led to another increase in the fragmentation of Turkey’s water management framework both in the legal and organizational context.

76 ‘River basin approach’ is a concept used to frame management of water resources taking river basins as main units of governance. According to this understanding, the geo-spatial unit of river basins should also be the major administrative units for water management. On this issue see F. Molle, “River-basin Planning and Management: The Social Life of a Concept”, Geoforum 40 (2009), 484. 77 Council and Parliament Directive 2000/60/EC of 23 October 2000 establishing a frame­ work for community action in the field of water policy, EC OJ L327/1, 22 December 2000. This issue is thoroughly discussed in U. Beyerlin’s contribution to this book, supra note 41.



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j. By-law 1991 (and revisions) on Water Pollution Control The By-law on Water Pollution Control of 198878 is a specific by-law intended to protect surface- and groundwater resources of the country as well as to prevent their pollution. This by-law is noteworthy in the sense that it is the first legislation specifically designed for the protection of water quality. It marks the rising significance of environmental concerns and water quality issues in Turkish water management policies. In 2004, it was amended by a new by-law which had been envisaged in the framework for the National Program for the adoption of EU acquis communautaire.79 Through this new by-law, Turkey’s basic legislation on water quality has mostly been aligned to that of the EU. According to the new by-law, several authorities became responsible for different aspects of the prevention of water pollution: the MoEF, the Ministry of Health, the Ministry of Industry and Trade, the Ministry of Culture and Tourism, Provincial and District Governors, DSI, and the municipalities. In this regard, it can be argued that the new by-law on water quality did little to counteract the increased fragmentation of institutional responsibility, a negative feature of the Turkish water management framework, which has continually been referred to in progress reports of the European Commission,80 as well as of project consultancy firms, such as Grontmij.81 The by-law of 200482 required DSI and the MoEF to respectively prepare ‘basin plans’ and ‘basin protection plans’ (article 5). The following definitions of these plans are provided in article 3. Basin plans are defined as water use plans containing all the works and studies aiming to benefit from water resources in an efficient manner and to use these resources for irrigation, flood control, navigation, supply of drinking and domestic water, hydro-electrical energy production, drainage, river basin regulation, and similar purposes.

A basin protection plan is defined as a water quality protection plan containing all the works and studies undertaken to protect the water resources potential for all purposes of use, to make use of the

78 By-law of Control of Water Pollution 1988, supra note 6. 79 By-law of Control of Water Pollution, Official Gazette No. 25687 of 31 December 2004. 80  S ee for instance, European Commission, Annual Progress Report-Turkey (2008), 77−78. 81 See Grontmij Water and Reststoffen BV, Institutional and Legal Strengthening in the Field of Water Management in Turkey: Report on the legal and institutional developments required to meet EU legal requirements in the Field Of Water Management in Turkey, 2004. 82 The By-law of Control of Water Pollution 1988, supra note 6, only required the prepara­ tion of ‘basin plans’, to be prepared by Provincial Governors and Directorate Generals’ of DSI in cooperation.

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vakur sümer water resources potential in the best way, to prevent pollution, and to improve water quality of water resources that have already been polluted.83

Moreover, the By-law on Water Pollution Control (2004) defines emission limit values, i.e. “the maximum allowable discharge of pollutants84 into receiving natural and artificial water bodies”. It divides inland surface waters into four categories,85 and defines water quality standards for each category of receiving water bodies. In case the MoEF authorities determine that the current and future usage of the respective water bodies is negatively affected, the discharge limit values are reduced.86 The By-law on Water Pollution Control also regulates “the permit system for direct (into receiving waters) and indirect dischargers (into municipal sewage systems)”.87 The By-law on Control of Water Pollution was again amended on 13 February 2008.88 The amendment further harmonized Turkish water pollution control legislation with the European Directives incorporating them into Turkish law.89 It also authorized provincial branches of the MoEF to issue discharge permits (prior to this by-law, the highest authority in the province, namely Governor was the responsible authority). The 2008 revision of the by-law provides more detailed definitions of several terms, like for example ‘eutrophication’,90 and introduced several new concepts, like inter alia ‘sensitive water zone’, ‘urban waste water’, ‘recreational areas’ and ‘bathing water’. The definitions of these concepts have been aligned with those of the WFD. This amendment attempted to bridge the

83 Art. 3 of the By-law of Control of Water Pollution, supra note 80. 84 These include priority substances listed in the Dangerous Substances Directive; Council Directive 76/464/EEC of 4 May 1978 on pollution caused by certain dangerous sub­ stances discharged into the aquatic environment of the Community, EC OJ L/129 of 18 May 1976, and the Council Directive 91/676/EEC of 12 December 1991 concerning the Protection of Waters against Pollution by Nitrates from Agricultural Sources have the objective of reducing water pollution caused or induced by nitrates from agricultural sources, EC OJ L/375/1 of 31 December 1991. 85 Classification is based on a) physical and inorganic chemical, b) organic, c) inorganic pollution and d) bacteriologic parameters. Class I waters refer to high quality waters, Class II waters refer to minimal pollution, Class III refers to polluted water and Class IV refers to highly polluted water (the number of parameters on which assessments rest was extended to 45 in 2004), G. Orhan / W. Scheumann, “Turkey’s Policy for Combating Water Pollution”, in: Kibaroglu, supra note 8, 117−138. 86 Art. 39 (b) of the Amendment to the By-law on Control of Water Pollution (2004), supra note 80. 87 Orhan / Scheumann, supra note 86, at 127. 88 Official Gazette No. 26687 of 13 February 2008. 89 For instance, the definitions are updated according to the By-law on Waters Intended for Human Consumption, supra note 34. 90  Eutrophication practically means excessive enrichment of waters with nutrients, causing quality degradation. For various detailed definitions, see .



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remaining discrepancies between Turkish and EU legislation relating to water pollution control. Another significant amendment in the by-law is that, for the first time, it contained an obligation not to release untreated waste water into receiving water bodies.91 This contributed to a more stringent prohibition of the discharge of waste water into drinking water bodies.92 In particular since the absolute protection zone was extended from 100 to 300 m (article 17) starting from the maximum water level and all mining activities93 are now prohibited within the medium range of a protection zone.94 All these changes reveal that the revisions to the By-Law of 2008 comprise a notable step forward in terms of harmonization with EU legislation on water pollution control. It provides for more stringent rules, more detailed definitions, and more responsibility for the Provincial Directorates of MoEF. In sum, one can say that the first version of the By-law on Water Pollution Control (1988) represented the embodiment of the environmental focus in Turkey’s water management policy, which was introduced by the Law on Environment in 1983. The establishment of the Ministry of Environment (1991) created a more institutionalized footing for the implementation of this by-law. Subsequently the by-law was amended twice (2004, 2008) with a view to ensure compliance with the EU’s standards. Therefore, first having been initiated as an internal (national) attempt to ameliorate water pollution, the By-law on Water Pollution Control has become a subject of the EU membership negotiations. Through its amendments, the scope of the legislation was widened, more detailed provisions have increased, and provisions have become stricter in terms of limits. In this respect, from an environmental perspective, it could be argued that Turkey’s water pollution legislation experienced a progressive development through successive rounds of amendments, caused by the double effect of internal political will and inspiration from EU standards. k. Summary on Water Related Laws and Regulations The laws analyzed above can be considered among the most fundamental legislation that has been adopted in Turkey concerning water management, since

91 Art. 4 ( j) of the 2008 Amendment to the By-law of Control of Water Pollution, supra note 89. 92 Ibid., art. 16 (a) prohibits ‘treated’ waste water discharges as well. 93 According to art. 19 (e) of the 2004 By-law on Control of Water Pollution, supra note 87, mining companies are obliged to provide a written document signed by the representative(s) of the company to the MoEF to guarantee that water resources’ quan­ tity and quality will not be harmed; that the health of persons or the public will not be harmed; that mining activities will not create waste water discharges, and that the mining area will be returned to nature into pristine condition. 94 Ibid., art. 19 defines the boundaries of the medium range protection zone as “a strip of 1 km in width, which begins from the boundaries of the short range protection zone”.

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water appears to be part of their basic focus. However, there are still a substantial number of laws and by-laws governing water management other than these. One can find provisions related to water use, management and allocation in almost 100 different laws, by-laws, decrees etc. Because of this complexity and fragmentation, there are still many practical difficulties and contradictions in the implementation and enforcement of water-related legislation.95 Taking into account the legal framework, it is possible to divide the history of Turkey’s water management policy into three successive phases. The first phase is characterized by the enactment of framework laws, such as the Village Law (1924), the Law on Waters (1926), or the Law on Municipalities (1930). It essentially covers the first three decades of the Republic.96 Given the lack of ­water-specific legislation and official organizations, this phase was primarily characterized by the development of individual projects of irrigation and drinking water, without taking into account the basin as a whole. Moreover it was marked by the lack of technical personnel and data on rivers which prevented a systematic approach to water resources development. One of the priorities of the era was to improve public health. This priority had implications for water issues, as well. For instance, the main responsibility to implement the Law on Waters was given to the Ministry of Health and Social Aid. Similarly, the drying up of swamps was seen as essential for the elimination of certain diseases like malaria. The second phase was characterized by the introduction of systematic water development works in Turkey. The inception of the second phase was marked by the establishment of DSI in 1954. The creation of DSI with independent economic resources and its own technical personnel provided an impetus for water resources development works in accordance with technical and economic necessities. In this respect, first, exploratory studies were conducted in river basins across the country. Hence, this phase is called “the phase of systematic planning at the basin level”.97 Also, in order to provide data required during exploratory studies, which was lacking at the time, observatory studies were conducted and gauging stations were set up. As the studies on different basins necessitated a specific organizational setting, in the 1960s, DSI adopted the view that water resources development planning should be done in proximity of the water resource itself. Hence, DSI established the Directorate Generals. In this phase, two laws reinforced the status of DSI as the major public agency in development of water resources. Firstly, the Groundwater Law of 1960 established that DSI is ultimately responsible for the utilization and management of groundwater. Secondly, Act No. 1053 of 1968 granted DSI the responsibility to provide water supply for the cities with a population greater than 100,000. The construction of physical

95 Özbay, supra note 27. 96 Bilen, supra note 70, at 293. 97 Republic of Turkey, State Planning Organization, supra note 54, at 104.



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works for drinking water supply, hydropower generation, irrigation development, and flood control were four of the main priorities of this phase. In this regard, from the beginning of the mid-1950s until the early 1980s water management in Turkey was distinguished by the design and construction of water development works aiming to satisfy the specific sectoral needs and to prevent water related damages.98 While environmental concerns were largely ignored during the second phase, one can still discern some embryonic forms of practices with regard to environmental protection. For instance, in the 1960s DSI began to construct ‘fish ladders’ to save migratory fish by means of physical constructions diverting water from rivers which do not store water (i.e. dams were excluded).99 Similarly, in 1975 DSI contributed to the organization of one of the first scientific meetings during which interrelations between water and the environment were discussed.100 The third phase is marked by changing priorities in water management policies. Since the 1980s, the rapid urbanization and industrialization have had negative impacts on water quality and the quantity of water available. Therefore, the priorities with regard to water allocation shifted from previously satisfying only the irrigational needs, to ensuring a drinking and industrial water supply. In other words, the competition among different water uses became important with considerable ramifications. This was accompanied by discussions on issues such as inter-basin water transfers and water resources planning and management at the basin level.101 The rapid urbanization and industrialization in proximity of bigger cities necessitated different models in water supply and water services in metropolitan areas which resulted in the establishment of an autonomous water services administration on the municipal administrative level. Act No. 2860, which first established one of these administrations, namely ISKI, is noteworthy. The negative externalities of urbanization and industrialization have another ramification on water management policies, which can be seen in the increase of environmental sensitivities. The enactment of the Law on Environment in 1983 and then the introduction of the By-Law on Environmental Impact Assessment in 1993102 have required DSI to analyze the environmental impacts of projects executed under its authority.103 The establishment of the Ministry of ­Environment

 98 Ibid. 99 Bilen, supra note 70, at 297. 100 Together with Association for Protection of Turkey’s Nature (‘Türkiye Tabiatını Koruma Derneği’ in Turkish). See ibid. 101 Republic of Turkey, State Planning Organization, supra note 54. 102 For a detailed account on the role of Environmental Impact Assessment Directive in Turkey’s water policy in general, and in dam planning in particular, consult W. Scheu­ mann et al., “Environmental Impact Assessment in Turkey’s Dam Planning”, in: Kibaro­ glu, supra note 8, 139−160. 103 Bilen, supra note 70, at 297.

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in 1991 effectively raised the issue of environmental protection, including water management issues, to the political agenda. Furthermore, the phase witnessed the introduction of concerns regarding water quality issues into water management policies. The introduction of the Water Pollution Control By-law of 1988 is significant in this respect. Later in this phase, the impact of the EU can be observed. Beginning with the official application of the Republic of Turkey for EU membership, legislation in Turkey has increasingly been examined vis à vis the legislation adopted at the EU level. From the early 2000s onwards, i.e. with the official declaration of Turkey as a candidate country to the EU, the adoption of by-laws in water management gained momentum. The EU’s impact also contributed to the debate about the enactment of a comprehensive water law framework since the introduction of such a law is recommended by the EU. Moreover, the third phase was marked by a certain level of decentralization in some areas of water management. Five steps are remarkable in this respect. First is the establishment of autonomous authorities within metropolitan municipal structures (as independent entities in 1981 and as municipalities’ subordinate organization from 1984 onwards). Their budgetary autonomy prepared the ground for seeking external funds on their own, away from the national budget framework. The second step was the closure of GDRS and the subsequent transfer of GDRS tasks to Special Provincial Administrations in 2005. Third is the transfer of irrigation networks to irrigation associations (accelerated from 1993 onwards). Fourth is the transfer of the GAP Regional Administration (‘Güneydoğu Anadolu Projesi Bölge Kalkınma İdaresi’ in Turkish) to Şanlıurfa, a city of the region concerned, in 2008.104 The fifth step is related to the water quality management. The By-law on Control of Water Pollution (2008) increased the role for Provincial Directorates under MoEF. One of the notable trends during the third phase is ‘privatization’. Increasing the autonomy of municipal water services sections (1981 and 1984), triggered a

104 It should be noted that the GAP Regional Administration’s main role is not related to ‘water management’ per se. Rather it is about ‘coordination’ of the sustainable human development activities, including water management. Thus, some of its coordinating activities have relevance for water management issues. An example is education for farmers. Also, GAP Regional Administration works in cooperation with DSI in assessing groundwater potentials in some plains (Ceylanpinar and Harran), and managementoperation-maintenance of irrigation systems (also known as GAP-MOM); and in cooperation with DSI and MARA, regulation of water in irrigation canals and proj­ ects designed to determine the best irrigation systems in light of the climate of the region, soil characteristics, water availability and established practices of farmers. GAP Regional Administration works in conjunction with the Agency for Agrarian Reform, DSI, Cadastral Office and MARA in land consolidation projects. In short, transfer of GAP Regional Administration headquarters to Sanliurfa is to be seen as a step towards granting more autonomy to the local centers.



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wave of privatization in some instances.105 Apart from this, the practice of using subcontractors (‘taşeron’ in Turkish) through tender operations for the realization of a wide range of works (surveys, projects, constructions) gained prominence in state organizations since the mid-1980s. In this context, greater private sector involvement for the generation of hydroelectricity and in water resources development is encouraged through the introduction of Build-Operate-Transfer (BOT) scheme in 1984, followed by the Electricity Market Law No. 4628 in 2001, and the Renewable Energy Law No. 5346 in 2005.106 III. Analysis and Conclusion Adopting the above classification and content analysis perspective, several characteristics of the legal framework of current Turkish water management may be discerned including certain deficits. This analysis will examine the continuing priorities and changing approaches in water management legislation in Turkey. Concerning the characteristics of the legal framework prevailing in Turkey’s water management one can first of all recognize that many of the water specific laws are outdated and insufficient to satisfy Turkey’s current water needs.107 For instance, the Law on Waters dates back to 1926. This insufficiency is also related to some fundamental changes in conditions. For instance, Act No. 167 adopts the ‘first come, first served’ understanding with regard to granting groundwater utilization permits. This was not so problematic at the time of its enactment when the population of Turkey counted only around 27 million108 and the available reserves were able to meet demand. As Ercüment Immet109 states, the available groundwater reserves are now unable to satisfy the demands of the population. In addition to these problems, these laws do not reflect an integrated water resource management approach, although this approach has been adopted in several official documents in Turkey such as the Five Year Development Plans.110 However, 105 For instance, Kocaeli, Antalya metropolitan municipalities; CALBIR in Çesme munici­ pality, İzmir. 106 For a detailed account on the privatization in hydroelectricity sector in Turkey in par­ ticular, see A. Baskan, “Liberalization of Turkey’s Hydroelectricity Sector”, in: Kibaro­ glu, supra note 8, 83–91. 107 A. Günes, “Avrupa Birligi Su Cerceve Yönergesi ve Türk Su Hukuku” (European Union Water Framework Directive and Turkish Water Law), Paper presented at EU, German and Turkish Environmental Law Symposium on 18–20 October 2010 in İstanbul, Turkey, 10. 108 See . 109 Immet, supra note 47. 110  The Five Year Development Plans in Turkey have been initiated after the establish­ ment of State Planning Organization on 30 September 1960. The main objective of these plans was to make optimal use of the existing socio-economic potential of the country and benefit as much as possible from this potential. The first Five Year Devel­ opment Plan was implemented between 1963 and 1967. See . For more recent information, see Republic of Turkey, State Plan­ ning Organization, Ninth Five Year Development Plan, Official Gazette No. 26215 of 1 July 2006, 76. 111 Kibaroglu / Baskan, supra note 19, at 3–25. 112 Gunes, supra note 108, at 12–13. 113 For instance, in England and Wales water services were privatized in 1989. C. van der Berg, “Water Privatization and regulation in England and Wales”, Journal of Public Pol­ icy for the Private Sector, 1997, 15, available at: .



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­ easures.114 Hence, it could be argued that to catalyze change in Turkey’s water m management policy, public authorities will need to be convinced first. Third of all, there is a lack of clarity with regards to user rights and ownership in Turkey’s legal framework concerning water management. According to the customary practice in Turkey, assigned user rights enjoy the right of ‘prior appropriation’.115 These user rights cannot be sold or transferred. User rights to water resources are subject to title deed registration.116 In other words, for a person to establish his/her title to the land and water resources of that land, all important instruments (complementary assets in the land, such as water) related to that land should be registered. Until 1960, this legal framework for ‘user rights’ was also applicable for groundwater resources. But with Act No. 167, groundwater resources were transferred from the ‘private’ to the ‘public’ domain. While private water is subject to detailed legislation, there is no specific, comprehensive legislation governing public water (‘umuma ait sular’ in Turkish).117 Another view on the issue, however, asserts that DSI is the ultimate authority to allocate public water resources. Former legal adviser at the DSI, Özbay contends Act No. 6200 on the Organization and Duties of the State Hydraulic Works empowers the DSI to coordinate water use at the national level, despite the existence of separate legislation dealing respectively with matters such as rural and urban water supply, groundwater, irrigation and hydropower.118

Obtaining prior approval from DSI concerning the source and volume of water to be used for each project is necessary for any agency involved in a water development projects or investing in the water-sector. Additionally, when a conflict between a user and the supplier, namely DSI, about public surface and groundwater resources emerges, the cases are dealt with by administrative courts, instead of ordinary courts. The administrative courts’ and the Council of State (‘Danistay’ in Turkish)119 decisions validate the DSI as the ultimate authority to allocate public water resources.120

114  Republic of Turkey, State Planning Organization, supra note 54, at 63. 115  According to this principle, the first person to use a quantity of water from a water source for a beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can use the remaining water for their own beneficial purposes provided that they do not impinge on the rights of previous users. Basic Water Law Concepts, available at: . 116  ‘Tapu sicili’ in Turkish. 117  Duygulu, supra note 19. 118 Ö. Özbay, Water Law Expert from Toprak-Su-Enerji, and former Senior Law Adviser, DSI, personal interview, Ankara, December 2009. 119 The Council of State is the highest administrative court in Turkey. 120  Özbay, supra note 27.

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Lastly, another characteristic of Turkish water management is that Turkey has no comprehensive water law ‘framework’,121 but, as may be seen above, numerous laws which regulate different aspects of water related public sector activity. This is a result of Turkey’s water management history which is characterized by the enactment of various laws, by-laws, etc. and a lack of co-ordination between different agencies. Because different laws and by-laws authorize a number of different institutions to manage the same water resources, conflicts over tasks and responsibilities in the water sector have emerged. For instance, the By-law on Water Pollution Control authorizes numerous ministries and other official authorities to manage different aspects of water pollution. The problem with this approach lies in the fact that dealing with water pollution through uncoordinated efforts of multiple authorities will not yield notable results. Because water pollution does not respect administrative borders, inevitably an overlap of competencies occurs. Water pollution in surface water may for example pollute groundwater through leakages. To illustrate, in accordance with article 6 of Act No. 2634 on Promotion of Tourism (‘Turizmi Tesvik Kanunu’ in Turkish)122 the Ministry of Tourism and Culture has the mandate to manage water pollution within Culture and Tourism Protection and Development Zones (‘Kültür ve Turizm Koruma ve Gelisim Bölgeleri’ in Turkish). Meanwhile, the evaluations and analyses of groundwater pollution are conducted by DSI, while enforcement regarding pollution of groundwater is carried out by MoWFA. Because of the holistic nature of the water cycle, all these fragmented mandates are not capable of creating a coherent framework through which the issue of water pollution can be effectively addressed. Against this background, a comprehensive framework law which provides for the guiding principles, norms, rules and procedures in water resources management and allocation, has come to be seen as essential.123 The need for the process of formulating, consulting on, and passing a modern water law that gives legally enforceable water rights to water users, and which establishes a water resources management and regulatory authority with full legal powers to license and enforce water abstractions and discharges124

is emphasized. One of the most significant elements of this new structure should be the empowerment of such a regulatory legal authority with a mandate for central planning on the basis of the river basin approach.125 Creating such a legal authority and establishing legally respected individual water rights could contribute

121 Grontmij Water and Reststoffen BV, supra note 82, at 12. 122 Act No. 2634, Official Gazette No. 17635 of 16 March 1982. 123 M. Emin Baris/ A. Ayfer Karadag, “Water Resources Management Issues in Turkey and Recommendations”, J. Appl. Sci. 7 (2007), 3900−3908. 124 Kibaroglu / Baskan, supra note 19, at 20. 125 D. Yildiz, civil engineer and water policy expert, online statement of 12 April 2010, available at: .



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to a change in adopted practices through which water resources are managed and developed. The need for a framework law is also mentioned within the context of Turkey’s possible EU membership. The Report on Legal and Institutional Developments Required to Meet EU Legal Requirements in the Field of Water Management in Turkey126 states [h]aving a comprehensive Water Law would make it easier to transpose the daughter directives, which are still being developed under the WFD. It would make it also easier to transpose the current EU water directives and to repeal those regulations, which transpose directives, which will be repealed once they are fully implemented by the WFD.127

In this view, a new water law could be beneficial in demarcating the boundaries of the duties of the MoWFA and other official organizations. Hence, the overlaps and duplication in responsibilities between the organizations could be abolished or, at least, minimized.128 The governmental authorities agree with the view that a reappraisal of water legislation and the introduction of a new comprehensive water law, along with the re-organization of the organizational setting is necessary, especially during the harmonization with the EU requirements.129 Several drafts for such a comprehensive water law have been prepared since the late 1990s.130 Yet none of these drafts have so far been put forward for parliamentary discussion. It is asserted that this delay in parliamentary procedures regarding such a framework water law stems from the fact that the need for a new water law has yet not been regarded as a priority issue by the Turkish government.131 When analyzing these drafts, one can recognize some common elements: First, all drafts acknowledge the need for a ‘river basin approach’ in water management policy. Secondly, all drafts emphasize the need for continuation of public involvement in water management policy. Third, the drafts give due diligence to protection of water resources in terms of both quantity and quality. Adoption of a new water law which would provide a framework compatible with basic principles in the WFD was one of the promises of Turkey in the context

126 Grontmij Water and Reststoffen BV, supra note 82. 127 Ibid., 12. 128 Ibid. 129 See Republic of Turkey, State Planning Organization, supra note 54, at 62–67. 130 A draft water law was prepared by contributions of official organizations under the leadership of DSI. Apart from DSI’s study, another draft law, namely the Draft Water Law (‘Su Kanunu Taslagi’ in Turkish) was prepared by TEMA (Turkish Acronym for ‘Türkiye Erozyonla Mücadele, Agaclandirma ve Dogal Varlikları Koruma Vakfi’). Also, USİAD (Turkish acronym for ‘Ulusal Sanayici ve Isadamlari Dernegi’—National Asso­ ciation of Industrialists and Businessmen) prepared a draft law for the creation of a ‘Water Resources Ministry’. 131 Kibaroglu / Baskan, supra note 19, at 21.

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of EU accession negotiations which started in 2009 for the Environment Chapter. Against this background, on 8 October 2012 a new draft law was published by the MoWFA for consultations with various stakeholders including among others NGOs, universities, and water users. It aims to eliminate the current situation of fragmented water management and to create an efficient governance scheme in which the MoWFA would be the single main authority. The draft law adopts the view that water management should be based on the ‘the river basin management’ concept. Furthermore, the draft enshrines the principle of full-cost-recovery.132 In this respect, it is a step forward in complying with some of the basic principles of the WFD. However, there are limitations to this. To illustrate, although the draft law outspokenly targets the development of a participatory framework for water management,133 it falls short of explaining how this participation is going to be realized. Another example is the management of transboundary waters. There is simply no reference to ‘transboundary waters’. The draft law only mentions bodies of water forming boundaries. One of fundamental novelties that the draft law brings is the creation of new authorities for control and monitoring.134 Yet, it is questionable whether the creation of these new authorities does not counteract with the aforementioned aim of managing water resources through the powers of a single authority. The draft law is now pending to be transferred to Parliament for further consultations and possible amendments. Thus, it would be speculative to draw hasty conclusions about the scope of changes that this draft law would ultimately bring to Turkey’s water management. Turkey’s lack of a comprehensive water law framework, unclear demarcation lines both for user rights and for roles of responsible organizations were among the basic traits of the country’s legal context framing water. Although legal regulations with respect to water quality monitoring are in place, effective implementation and enforcement has always remained a serious concern.

132 The full-cost-recovery principle calls upon States to ensure the recovery of costs asso­ ciated with water services, including financial, environmental and resource costs. For a detailed discussion on the subject see R. Brouwer et al., “Economic Valuation of Environmental and Resource Costs and Benefits in the Water Framework Directive: Technical Guidelines for Practitioners”, AquaMoney 2009, available at: . Also see H. Unnerstall, “The Pinciple of Full Cost Recovery in the EU-Water Framework Directive: Genesis and Content”, JEC 19 (2007), 29; V. Sümer / C. Muluk, “Challenges for Turkey to Implement the EU Water Framework Directive”, in: Kibaroglu, supra note 8, 50 et seq. 133 Art. 1 of the Draft Water Law, available at: . 134 High Council for Water Management (responsible for safeguarding the general prin­ ciples of Basin Plans) and basin-wide Water Allocation Councils.

Chapter Twelve

EU Water Law and its Relevance for the Euphrates and Tigris Region Ulrich Beyerlin

I. Introduction Searching for ways and means to enhance the cooperation between the riparian states in the Euphrates and Tigris region (ET region),1 it may be helpful to have a closer comparative look at current EU water law which may become relevant for inter-state cooperation in the ET region in two ways: Firstly, if Turkey succeeds in getting full membership of the EU, it would be bound by the total body of EU law, including water law. This may have consequences for the initiatives of Turkey to enhance its transboundary water relations with Syria and Iraq. Turkey, associate member of the European Economic Community since late 1964, submitted its application for formal membership in the European Community in April 1987. However, it was not until December 1999 that Turkey was recognized by the Helsinki European Council as a candidate for EU membership. It took European leaders another five years to start accession negotiations with Turkey from October 2005 to date. The success of Turkey’s formal candidacy, inter alia, depends on its falling fully in line with the total of 35 chapters of the ‘acquis communautaire’ which includes environmental protection. Thus, only once Turkey meets the water-related ‘acquis’, member states of the EU may agree on granting Turkey full membership to the EU. At present, Turkey still appears to be far from reaching this target. The EU Commission in its annual progress reports from 2001 onwards has consistently criticized Turkey’s water policy.2 Turkey has been repeatedly blamed (1) for not 1 For a concise survey of the current state of the water problems in the ET region see A. Kibaroglu, Water for Sustainable Development in the Euphrates-Tigris River Basin, Paper presented at the 2nd Asia Pacific Association of Hydrology and Water Resources Volume II, 5–8 July 2004, available at: . 2 See for more details V. Sumer / C. Muluk, “Challenges for Turkey to Implement the EU Water Framework Directive”, in: A. Kibaroglu et al. (eds), Turkey’s Water Policy, 2011, 43 (52 et seq.).

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having organized its institutional framework for water management on a river basin basis, and (2) for its rather poor consultations on water issues with its neighbouring states. Thus, it appears that as yet Turkey has not met the expectations that EU member states have set it.3 Secondly, if Turkey remains outside the EU for a long time, the question is plain: What can Turkey, Syria and Iraq learn from EU water law? Could EU water law serve as a model for shaping water relations between the riparian states of the Euphrates and Tigris? The subsequent observations will begin by showing how EU water law developed over the last four decades (II.). This brief historical review will be followed by a compilation and assessment of the most important EU water law directives, headed by the EU Water Framework Directive (WFD) of 2000,4 as well as relevant EU ‘soft law’ documents (III.). After this, a more detailed analysis of the WFD’s river basin approach5 will be given (IV.). Finally, some conclusions will be drawn from the findings made above (V.). II. Historical Development of the EU’s Water Law The legislative development of the EU’s water law can be divided into three different phases.6 During a first legislative period (1975 to 1980), two different types of water-related directives were adopted, namely ‘water use’ directives and ‘water pollution’ directives, which EU member states were obliged to transpose into their domestic legal orders. The first type of directive defined public health-oriented standards for the quality of various water types, namely Directive 75/440 of 16 June 1975 on the protection of surface water for the abstraction of drinking water;7 Directive 76/160 of 8 December 1975 concerning the quality of bathing water;8 Directive 78/659 of 18 July 1978 on the quality of fresh waters needing protection or improvement in

3 For a survey of the steps of Turkey towards implementing the Water Framework Direc­ tive (WFD) see ibid., 43 (54 et seq., 65). 4 Council and Parliament Directive 2000/60/EC of 23 October 2000 establishing a frame­ work for community action in the field of water policy, EC OJ L327/1 of 22 December 2000. 5 This approach is reflected in art. 3 WFD; its text is annexed to this contribution. 6 See for such a typology G. Kallis / D. Butler, “The EU Water Framework Directive: Mea­ sures and Implications”, Water Policy 3 (2001), 125, (126 et seq.); A. Kibaroglu / V. Sumer, “Diverging Water Management Paradigms between Turkey and the European Union”, Water International 32 (2007), 739 (746); Sumer / Muluk, supra note 2, at 44 et seq.; cf. also L. Krämer, EU Environmental Law, 2011, 252 et seq. 7 EC OJ L194/6 of 25 July 1975. 8 EC OJ L31/1 of February 1976.



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order to support fish life;9 and Directive 79/923 of 30 October 1979 on the quality required of shellfish waters.10 The second type of directive aimed at harmonizing pollution control efforts within the European Communities and defined the permissible levels of discharge of dangerous substances to surface and groundwaters, namely Directive 76/464 of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the community;11 and Directive 80/68 of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances.12 During a second period (1981 to 1996), two new directives were adopted, namely Directive 91/271 of 21 May 1991 concerning urban waste water treatment13 and Directive 91/676 of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources.14 These directives were accompanied by others, such as Directive 92/43 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora15 and Directive 96/61 of 24 September 1996 concerning integrated pollution prevention and control16 that both have only an indirect impact on water protection and management. A third period that is still running started in the middle of the 1990s. It has been marked by intensive efforts of the EU organs to give greater coherence to measures on water protection which considerably suffered from a lack of legislative coordination. In 1994, the EU Commission made a Proposal for a Council Directive on the ecological quality of water17 responding to: The need for a comprehensive framework and measures covering all relevant aspects of water quality, in order to protect water in the Community from further deterioration and in order to attain the high level of environmental protection aimed at in the Treaty.18

However, this proposal was met with little enthusiasm in the European Parliament. This is why, upon the request of the latter, the EU Commission presented the Communication ‘European Community Water Policy’ in 199619 and another 9 EC OJ L222/1 of 14 August 1978. 10 EC OJ L281/47 of 10 November 1979. 11  See for a codified version of Directive 76/464 Directive 2006/11 of 15 February 2006; EU OJ L64/52 of 4 March 2006. 12 EC OJ L20/43 of 26 January 1980. 13 EC OJ L135/1 of 30 May 1991. 14 EC OJ L375/1 of 31 December 1991. 15 EU OJ L206/7 of 22 July 1992. 16 EC OJ L257/10 of 10 October 1996. This directive has been substantially amended sev­ eral times. See lastly EU Directive 2008/1 of 15 January 2008 (Codified version); EU OJ L24/8 of 29 January 2008. 17 COM (93) 680 final of 15 June 1994. 18 Indent 12 of the proposed Directive, ibid., 19. 19 COM (96) 59 final of 21 February 1996.

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proposal for a ‘Council Directive establishing a framework for Community action in the field of water policy’ in 1997.20 Based on this proposal, the European Parliament and the EU Council adopted Directive 2000/60 of the same title on 23 October 2000, i.e. the WFD. According to its article 24, member states had to “bring into force laws, regulations and administrative provisions necessary to comply with this Directive at the latest 22 December 2003”.21 During the first decade of the 21st century the European Parliament and the EU Council adopted another three directives in the field of water policy that pursue, like the WFD, an ‘integrated approach’: these are Directive 2006/118 of 12 December 2006 on the protection of groundwater against pollution and deterioration;22 Directive 2007/60/EC of 23 October 2007 on the assessment and management of flood risks;23 and Directive 2008/105 of 16 December 2008 on environmental quality standards in the field of water policy.24 III. Single Instruments of EU Water Law and Policy 1. Legally Binding Instruments a. Water Framework Directive (WFD) The WFD is the cornerstone of this new, integrated type of EU legislation. It protects all waters, particularly surface waters like rivers and lakes, but also groundwater and coastal waters. It aims, in its article 1, at achieving five objectives, i.e. to prevent the further deterioration of aquatic and terrestrial ecosystems, as well as to protect and improve these ecosystems; to promote sustainable water use based on a long-term protection of available water resources; to enhance the protection and improvement of the aquatic environment through the progressive reduction of discharges; to ensure the progressive reduction of pollution of groundwater and to prevent its further pollution; and to mitigate the effects of floods and droughts. These broadly worded environmental objectives in article 1 WFD are specified and concretized for ‘surface waters’, ‘groundwater’ and ‘protected areas’ in article 4 WFD.25 According to the latter provision, the WFD aims at harmonizing and streamlining existing water legislation throughout the EU, as well as achieving for the said categories of waters ‘good surface water status’, ‘good groundwater

20 Proposal, COM (97) 49 final of 26 February 1997. 21 Cf. to the whole Krämer, supra note 6, at 253. 22 EU OJ L372/19 of 27 December 2006. 23 EU OJ L288/27 of 6 November 2007. 24 EU OJ L348/84 of 24 December 2008. 25 See its text in the Annex to this contribution.



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status’ and, with regard to protected areas, ‘compliance with any standards and objectives’ all over the EU by 2015, at the latest.26 In their efforts to achieve these objectives, member states must be aware of the acknowledgement in the preamble of the WFD that “water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such”.27 However, this acknowledgement is too vaguely worded to deduce from it a clear-cut legal obligation of riparian states of a transboundary watercourse to preserve the latter as heritage, and to ensure that all people living within the river basin concerned have an equitable share in the benefits resulting from the utilization of the water resources they share. Another important feature of the WFD is ‘public participation’, as indicated in its preamble with the words: To ensure the participation of the general public including users of water in the establishment and updating of river basin management plans, it is necessary to provide proper information of planned measures and to report on progress with their implementation with a view to the involvement of the general public before final decisions on the necessary measures are adopted.28

This commitment is slightly substantiated in article 14 WFD which states that: Member States shall encourage the active involvement of all interested parties in the implementation of this Directive, in particular in the production, review and updating of the river basin management plans.

Member states are, inter alia, obliged to: Publish and make available for comments to the public, including users (. . .) a timetable and work programme for the production of the consultation measures to be taken, at least three years before the beginning of the period to which the plan refers (article 14 (1) (a)).

Moreover, they have to “allow, at least six months to comment in writing on [all documents made available] in order to allow active involvement and consultation” (article 14 (2)). According to article 3 WFD which is entitled “Coordination of administrative arrangements within river basin districts”,29 the WFD pursues a river basin approach. This approach could be of particular importance for interstate water-related cooperation in the ET region. Therefore, it will be separately addressed in section (IV.) below.

26 Art. 4 (1) (a) (ii), (b) (ii), (c) WFD. 27 Indent 1 of the preamble of the WFD. 28 Indent 46 of the WFD’s preamble; EC OJ L327/5, supra note 4. 29 See its text in the Annex to this contribution.

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b. Groundwater Protection Directive (2006) As shown above, the progressive reduction of groundwater pollution is one of the key goals of the WFD. However, due to its character as a directive “establishing a framework for Community action in the field of water policy”, at the time when the WFD was adopted, it was clear enough that the WFD’s framework provisions concerning groundwater protection were in need of being subsequently further elaborated and specified by a more specific EU directive. Accordingly, article 17 (1) WFD called upon the European Parliament and the Council of the EU to “adopt specific measures to prevent and control groundwater pollution (. . .) aimed at achieving the objective of good groundwater chemical status”. Both organs met this obligation with the adoption of Directive 2006/118. Recognizing that “groundwater is a valuable natural resource and as such should be protected from deterioration and chemical pollution” and that “this is particularly important for groundwater-dependent ecosystems and for the use of groundwater in water supply for human consumption”,30 the 2006 Groundwater Protection Directive “establishes specific measures (. . .) in order to prevent and control groundwater pollution”, including in particular: (a) Criteria for the assessment of good groundwater chemical status; and (b) Criteria for the identification and reversal of significant and sustained upward trends and for the definition of starting points for trend reversals (article 1). The scholarly estimation of the merits of this new Groundwater Protection Directive is divided. Due to its comprehensive approach to groundwater pollution applying a familiar federal-style of regulation, this Directive has been praised by R. Thomas as “an excellent starting point and model for the development of federal groundwater legislation in the United States”.31 By contrast, L. Krämer has been of the opinion that “the added value of this new legislation for the environment is limited”, because it “enters into the line of re-nationalising water legislation”.32 c. Flood Risks Directive (2007) While reducing the risk of floods is not one of the principal objectives of the WFD, it is the purpose of the Flood Risks Directive to: Establish a framework for the assessment and management of flood risks, aiming at the reduction of the adverse consequences for human health, the environment, cultural heritage and economic activity associated with floods in the Community (article 1). 30 Groundwater Directive, preamble, indent 1. 31 For a positive assessment of this Directive see R. Thomas, “The European Directive on the Protection of Groundwater: A Model for the United States”, Pace Envtl. L. Rev. 26 (2009), 259 (282). 32 Krämer, supra note 6, at 262.



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As regards the tools for achieving effective flood prevention and mitigation, this Directive provides that in each river basin district or unit of management the flood risks and needs for further action must be assessed (articles 4 and 5); moreover, it requires the establishment of flood hazard maps and flood risk maps showing the potential adverse consequences associated with different flood scenarios (article 6), as well as the establishment of flood risk management plans for the areas identified to be at risk (articles 7 and 8). d. Environmental Quality Standards Directive (2008) This Directive lays down environmental quality standards (EQS) for priority substances and certain other pollutants as provided for in article 16 WFD, with the aim of achieving good surface water chemical status in accordance with the objectives of article 4 WFD (article 1 EQS Directive). It induces member states to: Implement the necessary measures (. . .) with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances (preamble, indent 6).

2. Legally Non-binding Instruments a. EC Commission, 2002 Communication ‘Water Management in Developing Countries’33 The Commission, in its 2002 Communication, outlined “a comprehensive and integrated approach that is valid for all aspects of water resources management and for all users of water” and advocated the building of “strategies based on the overarching principles of Integrated Water Resource management”.34 In its conclusions, the Commission stressed the need for a ‘shift in thinking’, namely to: Recognise that all water users have a responsibility; to apply a real integrated approach in which all actors cooperate as partners (. . .) in preventing water pollution. Moving towards a sustainable water behaviour requires the establishment of new societal norms: to introduce the need for valuing water by increasing the perception of its preciousness in all its uses; to look for innovative solutions, sustainable in the longterm, while recognising that there is no ‘blue-print’ solution for all problems.35

Furthermore, the Commission concluded that: Action and, in most cases new approaches, are needed to tackle urgent and long-term priorities in providing water services, expanding sanitation coverage and hygiene education, meeting the urban challenge, achieving water-food security, protecting 33 Communication from the Commission to the Council and the European Parliament, Water Management in Developing Countries: Policy and Priorities for EU Development Cooperation, COM (2002) 132 final of 12 March 2002. 34 Ibid., 3. 35 Communication from the Commission to the Council and the European Parliament, supra note 33, at 24.

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ulrich beyerlin water eco-systems, managing floods. Conflict prevention and peace-building, which are political priorities for the EU, include sustainable and equitable management of shared natural resources, such as water. In all these activities, the EU (. . .) has an important role to play. Good practices have to be developed and promoted, in close coordination with EU Member States and international organisations, partnerships and networks (. . .). Such practices can build on the experience of water management within EU river basins and in the diversity of European approaches to management of water services, and on EC-supported research.36

This Communication was endorsed by the EU Council in its resolution of 30 May 2002 on water management in developing countries.37 b. EU Water Initiative (EUWI) Based on the 2002 Communication’s framework of thinking, EUWI was launched at the 2002 Johannesburg Summit for Sustainable Development as a response to declining investment in water and sanitation.38 Its goal is “to create the conditions for mobilizing all available EU resources (. . .), and to coordinate them to achieve the water-related Millennium Development Goals (MDGs) in partner countries”.39 This is based on its acknowledgement that: Water resources management needs to be addressed at all levels, including the natural river, lake or groundwater basin. Integrated water resources management with strong stakeholder participation, a pro-poor emphasis, and gender sensitivity is a key approach to ensure the integration of water services within an overall water management framework. Integrated water resource management also provides a framework to promote peace and security in transboundary water basins. As such the EU also confirms its support for initiatives that promote regional co-operation and economic development in transboundary water courses.40

The EU Commission, in its 2004 Communication, explained the future development of EUWI and proposed the modalities for the establishment of an ACP-EU Water Facility.41 The key elements of EUWI are to reinforce political commitment

36 Ibid. 37 See Doc. DEVGEN 83 ENV 309, 9696/02. 38 See . 39 See EC Commission, Communication on the Future Development of the EU Water Ini­ tiative and the Modalities of the Water Facility for ACP Countries of COM (2004) 43 final of 26 January 2004; cf. A. S. Rieu-Clarke et al. (eds), The Role and Relevance of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses to the EU and its Member States, paper published by the University of Dundee, Centre for Water Law, Policy and Science, 34 et seq., available at: . 40 EC Commission, ibid., 6. 41  ACP stands for African, Caribbean and Pacific countries. For more information on the ACP-EU Water Facility, consult .



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to action; promote better water governance arrangements; improve coordination and cooperation; encourage regional and sub-regional cooperation on water management issues; and to catalyze additional funding.42 Accordingly, the EU Commission proposed that the conditional amount of EUR one billion be released and used for the establishment of an ACP-EU Water Facility.43 IV. River Basin Approach of the WFD 1. Normative Framework Already in its preamble, the WFD acknowledges that: Within a river basin where use of water may have transboundary effects, the requirements for the achievement of the environmental objectives established under this Directive (. . .) should be coordinated for the whole of the river basin district. For river basins extending beyond the boundaries of the Community, Member States should endeavour to ensure the appropriate coordination with the relevant non-member states.44

In line with this statement, article 3 WFD pursues a clear river basin approach according to which EU member states are required to identify the individual river basins lying within their national territory and to: Assign them to individual river basin districts. (. . .) Where groundwaters do not fully follow a particular river basin, they shall be identified and assigned to the nearest or most appropriate river basin district (article 3 (1) WFD).

‘River basin’ means: The area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta (article 2 (13) WFD).

EU member states have to ensure that “a river basin covering the territory of more than one member state is assigned to an international river basin district”. Each member state shall ensure the appropriate administrative arrangements, including the identification of the appropriate competent authority, for the application of the rules of the Directive within the portion of any international river basin district lying within its territory (article 3 (3) WFD). Article 3 (5) WFD reads as follows: Where a river basin district extends beyond the territory of the Community, the Member State or Member States concerned shall endeavour to establish appropriate

42 Ibid., 7 et seq. 43 Ibid., 25 et seq. 44 Indent 35 of the preamble of the WFD; EC OJ L/327/4, supra note 4.

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ulrich beyerlin coordination with the relevant non-Member states, with the aim of achieving the objectives of this Directive throughout the river basin district. Member States shall ensure the application of the rules of this Directive within their territory.45

Thus, under article 3 WFD three situations must be distinguished. Firstly, where the entire river basin is lying within the national territory of one EU member state, it suffices to establish one national administrative unit only. Secondly, where the river basin crosses state borders, as in the ET region, an international river basin district must be established and administered by a competent international body representing all riparian states. Thirdly, where one part of the river basin is lying within an EU member state, while another part, or other parts, of the river basin is, or are, lying in the territory of one non-member state, or respectively, in the territories of various non-member states, the member state concerned is obliged to “endeavour to establish appropriate coordination” with the riparian non-member state(s). According to its articles 5, 11 and 18, the WFD with its river basin approach had to be implemented in a three stage process. Firstly, EU member states were to analyze the characteristics of each river basin district or the portion of an international river basin district. This analysis had to be undertaken according to the technical specifications set out in Annexes II and III by the end of 2007 at the latest (article 5 WFD). Secondly, EU member states had to establish for each river basin district, or the part of an international river basin district within their territory, a ‘programme of measures’ in order to achieve the protection and sustainable use of the water resources, as required under article 4 WFD, by the end of 2009 (article 11 (1) and (7—first half sentence) WFD). Thirdly, these ‘programmes of measures’, including the ‘basic’ measures specified in paragraph 3, and, where necessary, ‘supplementary’ measures (article 11 (2) WFD), had to be made operational by the end of 2012 at the latest (article 11 (7—second half sentence) WFD). Under article 13 WFD each EU member state must ensure that a river basin management plan (RBMP) is produced for each river basin district lying entirely within its territory (paragraph 1). In the case of an international river basin district falling entirely within the EU, member states shall ensure coordination with the aim of producing a single RBMP (paragraph 2). Where an international river basin district extends beyond the boundaries of the EU, Member States shall endeavour to produce a single river basin management plan, and, where this is not possible, the plan shall at least cover the portion of the international river basin district lying within the territory of the Member State concerned (paragraph 3).

By 2010, only 14 EU member states had complied with their obligation to adopt RBMPs. According to a report that has been published by the European

45 For an analysis of art. 3 (5) WFD see Krämer, supra note 6, at 253 et seq.



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Environmental Bureau, there are “serious doubts over the effectiveness of the WFD implementation to change specific and well known unsustainable water management practices”, because the result of ten years of effort towards developing RBMPs “shows very limited progress and does not meet basic expectations for legal correctness, let alone expectations for environmental ambitions”.46 Unfortunately, the WFD deals with the problems of water-related pollution and protection of the aquatic environment only in a rather incidental manner. Article 11 (6) WFD requires that member states, in implementing measures as specified in paragraph 3, “take all appropriate steps not to increase pollution of marine waters”. Furthermore, these measures “may on no account lead, either directly or indirectly, to increased pollution of surface waters”. Paragraph 6 ends with the rather ominous disclaimer that “this requirement shall not apply where it would result in increased pollution of the environment as a whole”. This rather weak and unspecified clause is complemented by article 16 WFD according to which the European Parliament and the Council of the EU have to develop ‘strategies against water pollution’ in the years to come. Both organs commit themselves to: Adopt specific measures against pollution of water by individual pollutants or groups of pollutants presenting a significant risk to or via the aquatic environment, including such risks to waters used for the abstraction of drinking water.

All these prospective legislative steps have to be taken on the basis of pertinent proposals to be submitted by the EU Commission, within certain periods of time, in line with a number of detailed substantive specifications laid down in article 16. Accordingly, in early 2012, the EU Commission launched a Proposal for a Directive of the European Parliament and of the Council amending Directives 2000/60/ EC and 2008/105/EC47 which will be based on article 16 (4) WFD. This Proposal concerns: The review of the list of priority substances (. . .) in the field of water policy, i.e. the chemicals identified among those presenting a significant risk to or via the aquatic environment at EU level which are listed in Annex X to the Water Framework Directive (WFD) 2000/60/EC.48

2. Relevance for Inter-state Cooperation in the ET Region? The riparian states of the Euphrates and Tigris have always faced water problems that typically arise in the upper-lower riparian relationship with its particular dynamics. As the country of origin and upstream riparian of both rivers, Turkey

46 S. Scheuer, 10 Years of the Water Framework Directive: A Toothless Tiger? A Snapshot Assessment of EU Environmental Ambitions, report published by the European Environ­ mental Bureau, 2010, available at: . 47 COM (2011) 876 final of 31 January 2012. 48 Ibid., 2.

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enjoys physical rather than effective control of the ET river basin, while Syria and Iraq suffer from the disadvantages that downstream riparian countries typically bear for geographical reasons. Until today, upstream/downstream countries have produced a variety of arguments with regard to their rights as co-riparians; these include concepts such as absolute territorial sovereignty, absolute territorial integrity, limited territorial sovereignty and equitable utilization of shared water resources.49 In the following, we will see that the future co-riparian efforts to solve the pending water-related problems in the ET region should best be guided by the latter concept. The Euphrates, approximately 2,700–3,000 km long, and the Tigris, more than 1,800 km long, both originate from the high mountains in eastern Turkey, flow down through Turkey, Syria and Iraq, and eventually join to form the Shatt AlArab 200 km before they flow into the Persian Gulf. The drainage basin of the Euphrates lies within the territories of Turkey (28 %), Syria (17 %), Iraq (40 %) and Saudi Arabia (15 %), while the drainage basin of the Tigris lies within the territories of Turkey (12 %), Syria (0.2 %), Iraq (54 %) and Iran (34 %).50 The contribution from each riparian country to the annual flow of both rivers immensely varies.51 Turkey contributes 89 %, Syria 11 % and Iraq nothing to the run-off of the Euphrates. As regards the Tigris, the picture is different. Turkey provides 51 %, Iraq 39 %, and the Iran 10 % of the annual water volume of the Tigris.52 All three riparian states have developed immense water storage capacities over the years that “have only fostered the individual accumulation of waters rather than an attitude of sharing”.53 The demands of the three riparian states for the water of the Euphrates and Tigris have been estimated to unrealistically amount to 148 % of the total flow capacity of the Euphrates and 111 % of that of the Tigris.54 As a result, “ineffective and inefficient demand management practices” are “one of the main factors influencing the water imbalance in the region”.55 49 Cf. U. Beyerlin / T. Marauhn, International Environmental Law, 2011, 88. 50 See G. Pring / B. Salman Banaei, “Tigris and Euphrates Rivers”, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, 2008 (online edition), available at: , para. 6; A. Kirschner / K. Tiroch, “Waters of Euphrates and Tigris: An International Law Perspective”, Max Planck UNYB 16 (2012), 329 (334), with references. 51 Turkish Ministry of Foreign Affairs, “Water: A Source of Conflict of Cooperation in the Middle East? A Scramble for Water Resources is Under Way in the Middle East”, avail­ able at: ; cf. also Pring / Salman Banaei, supra note 50, at para. 7. 52 FAO, “Irrigation of the Middle East Region in Figures”, Aquastat Water Reports 34 (2009), 359. 53 Kirschner / Tiroch, supra note 50, at 341. 54 See Turkish Ministry of Foreign Affairs, supra note 51, at 4. 55 Kirschner / Tiroch, supra note 50, at 341; cf. T. Naff / R. C. Matson, Water in the Middle East: Conflict or Cooperation?, 1984, 89.



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The Euphrates and Tigris can easily be considered to form a ‘river basin’— whether one or two river basins, is another question. Contrary to Turkey, Syria and Iraq consider the Euphrates and Tigris as forming two separate rivers. However, due to the very fact that (1) via lake Tharthar the Euphrates and Tigris have been intentionally interconnected by Iraq; and (2) that both rivers, after joining at the Shatt-al-Arab, empty into the Persian Gulf as a single river, there is much in favor of arguing that both rivers form a single river basin system.56 Turkey, Syria and Iraq also disagree on the question whether the Euphrates and Tigris are ‘transboundary rivers’, as viewed by Turkey, or ‘international rivers’, as viewed by Syria and Iraq. However, making such a distinction appears to be hardly in line with current international water law. According to the 1997 UN Watercourse Convention, the Euphrates and Tigris are ‘international’ in character, while the International Law Commission (ILC), in its Draft Article 2 (a) on the Law of the Non-navigational Uses of International Watercourses, takes the position that ‘transboundary’ means the same as ‘international’. Consequently, both terms can be used interchangeably.57 EU water law, including the WFD, cannot become directly relevant for solving the pending water problems in the ET region, unless Turkey formally becomes an EU member state. While Turkey may meet the requirement to be ‘a European State’ as laid down in article 49 Treaty of the European Union (TEU), Syria and Iraq will never become members of the EU for geographical reasons. As indicated above, the success of Turkey’s application for EU membership, inter alia, depends on its falling fully in line with the water-related ‘acquis communautaire’. Although Turkey has made some progress towards aligning with the WFD,58 it is still far from fully meeting the EU ‘water acquis’. V. Sumer and C. Muluk rightly argue that the Turkish “process of alignment could possibly

56 For the Iraqi position see Iraqi Ministry of Water Resources, Facts on the Joint Waters with Turkey, 1999, 29, 35 (on file with the author); and for the Turkish position M. Bie­ dler, Hydropolitics of the Tigris-Euphrates River Basin with Implications for the European Union, Centre Européen de Recherche Internationale et Stratégique, research paper no. 1 (2004), 21. For a survey of relevant discussion see Kirschner / Tiroch, supra note 50, at 376 et seq. 57 See for this controversy again Iraqi Ministry of Water Resources, supra note 56, at 29, 35; M. Jouejati, “Water Politics as High Politics: The Case of Turkey and Syria”, in: H. J. Bar­ key (ed.), Reluctant Neighbor: Turkey’s Role in the Middle East, 1996, 131, at 136 et seq.; A. Kibaroglu et al. (eds), Cooperation on Turkey’s Transboundary Waters, Status Report commissioned by the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety, 2005, 20, available at: . Cf. also Kirschner / Tiroch, supra note 50, at 377 et seq.; N. Bremer, The Regulation of the Non-Navigational Use of the Euphrates and Tigris River System, (forthcoming). 58 See particularly Sumer / Muluk, supra note 2, at 52 et seq.

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move faster and easier, if and when Turkey gets a clearer membership perspective from the EU”.59 Both authors conclude that: Turkey stands at a cross-road where two ways are open: one is the minimum implementation of the WFD without changing the essence of the water management in the country. A second is to transform the way water is managed, and to try to implement the WFD in order to reach ‘good status’ for its waters. Turkey’s success in the implementation of the WFD depends on which path it will choose to follow.60

As a future member of the EU, Turkey would be required under article 3 (5) WFD to endeavour to coordinate, as appropriate, its water-related activities with those of Syria and Iraq, with the aim of achieving the WFD’s objectives throughout the ET region. However, the wording of this legal obligation appears to be rather weak. The obligation clause “shall endeavour to establish appropriate coordination” is wide enough to give ample leeway to the EU member states for discretion. As it is also clear that the obligation to coordinate includes neither the undertaking of joint actions with Syria and Iraq, nor the establishment of a tripartite river basin unit together with these states, if Turkey becomes an EU member State, its obligation under article 3 (5) WFD is clearly weak in both substance and scope. Nonetheless, Turkey would be legally bound to establish, together with Syria and Iraq, adequate mechanisms of coordination that are flexible and efficient enough to solve the pending water use problems in the spirit of good neighbourliness, faithful partnership and willingness to compromise. Aware of the acknowledgement in the WFD’s preamble that water is a “heritage which must be protected, defended and treated as such”, Turkey should engage in intensive consultations with Syria and Iraq with the aim of undertaking joint efforts towards the establishment of reliable cooperative mechanisms in the ET region that offer all three riparian states the chance to participate in, and benefit from, a co-riparian system of protection and equitable utilization of the water resources they share in the ET region. If Turkey fails to achieve formal EU membership in the near future, it remains to be asked what the riparian states of the Euphrates and Tigris could learn from EU water law. The WFD defines a number of important substantive objectives to be achieved by means of cooperation, but largely abstains from specifying and substantiating these objectives in detail. Typical for its regulatory self-restraint is article 4 (1) (a) WFD which requires the achievement of ‘good surface water status’ or ‘good ecological potential and good surface water chemical status’. Unfortunately, these water quality standards to be achieved under the WFD remain rather undefined in substance. Apart from that, the WFD fails to address the particular dynamics of the upper-lower riparian relationship, as well as the role which a hegemonic 59 Ibid., 65. 60 Ibid.



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riparian state plays with regard to the allocation of transboundary water resources.61 In these respects, the lessons which the riparian states of the Euphrates and Tigris may draw from the WFD and the other water-related EU directives are admittedly modest. The merit of the WFD rather consists in delivering a comprehensive procedural framework of cooperation, including clear-cut time schedules for cooperation of co-riparian states sharing international river basins, as laid down in its article 3, and guidelines for structuring the process of gradually realizing the international river basin approach in practice. In this respect, Turkey, Syria and Iraq could learn significantly from the WFD. V. Conclusions The WFD prototypically shows that the fewer the substantive rules and the bigger their normative gaps, the more there is a need for complementary procedural norms. Its strength lies in providing a model for a legally binding procedural framework of cooperation with the ultimate aim of establishing mechanisms of protection and equitable utilization of water resources located within international river basins such as the ET basin. If practised in the spirit of faithful partnership, the co-riparian cooperation model of the WFD appears to be good enough to be applied to the ET region, if necessary, subject to suitable modifications. Turkey, Syria and Iraq should make joint efforts to solve the pending water problems in the ET region in a protracted multi-stage cooperation process. The slighter the chance to shortly reach a detailed substantive agreement, the more important is an understanding between all riparians on all necessary procedural steps to find a compromise on substantive questions at a later date in line with the principles and rules of relevant international law. As a first step, the riparian states of the Euphrates and Tigris should agree upon a time-schedule for entering into tripartite consultations at various levels, either formal or informal in character. In a second step, the already existing mechanisms of coordination and consultations, such as the Joint Technical Committee (JTC), established by the three co-riparian states,62 should be intensified and widened. In a third step, state officials, preferably at the ministerial level, should enter into consultations with the aim of agreeing upon a cooperation process aimed at achieving certain long-term cooperation objectives, including the environmental soundness of the river basin concerned. Such a process may be set in motion by

61 Cf. Beyerlin / Marauhn, supra note 49, at 88. 62 The Joint Technical Committee (JTC) is a body that was originally set up by Turkey and Iraq in 1980 to discuss technical water issues, with Syria joining in 1983. Having become inoperative in 1993, it was reactivated only in 2007. Cf. Kibaroglu, supra note 1, at 2 et seq. and Kirschner / Tiroch, supra note 50, at 348.

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signing informal ‘memoranda of understanding’ between all three riparians on the basis of which the states may compromise on all important substantive water issues by later entering into legally binding agreements. Annex Art. 3 WFD (2000): Coordination of administrative arrangements within river basin districts 1. Member States shall identify the individual river basins lying within their national territory and, for the purposes of this Directive, shall assign them to individual river basin districts. Small river basins may be combined with larger river basins or joined with neighbouring small basins to form individual river basin districts where appropriate. Where groundwaters do not fully follow a particular river basin, they shall be identified and assigned to the nearest or most appropriate river basin district. Coastal waters shall be identified and assigned to the nearest or most appropriate river basin district or districts. 2. Member States shall ensure the appropriate administrative arrangements, including the identification of the appropriate competent authority, for the application of the rules of this Directive within each river basin district lying within their territory. 3. Member States shall ensure that a river basin covering the territory of more than one Member State is assigned to an international river basin district. At the request of the Member States involved, the Commission shall act to facilitate the assigning to such international river basin districts. Each Member State shall ensure the appropriate administrative arrangements, including the identification of the appropriate competent authority, for the application of the rules of this Directive within the portion of any international river basin district lying within its territory. 4. Member States shall ensure that the requirements of this Directive for the achievement of the environmental objectives established under Article 4, and in particular all programmes of measures are coordinated for the whole of the river basin district. For international river basin districts the Member States concerned shall together ensure this coordination and may, for this purpose, use existing structures stemming from international agreements. At the request of the Member States involved, the Commission shall act to facilitate the establishment of the programmes of measures. 5. Where a river basin district extends beyond the territory of the Community, the Member State or Member States concerned shall endeavour to establish appropriate coordination with the relevant non-Member States, with the aim of achieving the objectives of this Directive throughout the river basin district. Member States shall ensure the application of the rules of this Directive within their territory.



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6. Member States may identify an existing national or international body as competent authority for the purposes of this Directive. 7. Member States shall identify the competent authority by the date mentioned in Article 24. 8. Member States shall provide the Commission with a list of their competent authorities and of the competent authorities of all the international bodies in which they participate at the latest six months after the date mentioned in Article 24. For each competent authority the information set out in Annex I shall be provided. 9. Member States shall inform the Commission of any changes to the information provided according to paragraph 8 within three months of the change coming into effect. Article 4 (1) WFD (2000): Environmental objectives 1. In making operational the programmes of measures specified in the river basin management plans: (a) for surface waters, (i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8; (ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8; (iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8; (iv) Member States shall implement the necessary measures in accordance with Article 16 (1) and (8), with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances without prejudice to the relevant international agreements referred to in Article 1 for the parties concerned;

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(b) for groundwater, (i) Member States shall implement the measures necessary to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8 of this Article and subject to the application of Article 11 (3) ( j); (ii) Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of Article 11 (3) ( j); (iii) Member States shall implement the measures necessary to reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order progressively to reduce pollution of groundwater. Measures to achieve trend reversal shall be implemented in accordance with paragraphs 2, 4 and 5 of Article 17, taking into account the applicable standards set out in relevant Community legislation, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8; (c) for protected areas, Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established. 2. Where more than one of the objectives under paragraph 1 relates to a given body of water, the most stringent shall apply. 3. Member States may designate a body of surface water as artificial or heavily modified, when: (a) the changes to the hydromorphological characteristics of that body which would be necessary for achieving good ecological status would have significant adverse effects on: (i) the wider environment; (ii) navigation, including port facilities, or recreation; (iii) activities for the purposes of which water is stored, such as drinkingwater supply, power generation or irrigation; (iv) water regulation, flood protection, land drainage, or (v) other equally important sustainable human development activities; 22.12.2000 EN Official Journal of the European Communities L 327/9



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(b) the beneficial objectives served by the artificial or modified characteristics of the water body cannot, for reasons of technical feasibility or disproportionate costs, reasonably be achieved by other means, which are a significantly better environmental option. Such designation and the reasons for it shall be specifically mentioned in the river basin management plans required under Article 13 and reviewed every six years. 4. The deadlines established under paragraph 1 may be extended for the purposes of phased achievement of the objectives for bodies of water, provided that no further deterioration occurs in the status of the affected body of water when all of the following conditions are met: (a) Member States determine that all necessary improvements in the status of bodies of water cannot reasonably be achieved within the timescales set out in that paragraph for at least one of the following reasons: (i) the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility; (ii) completing the improvements within the timescale would be disproportionately expensive; (iii) natural conditions do not allow timely improvement in the status of the body of water. (b) Extension of the deadline, and the reasons for it, are specifically set out and explained in the river basin management plan required under Article 13. (c) Extensions shall be limited to a maximum of two further updates of the river basin management plan except in cases where the natural conditions are such that the objectives cannot be achieved within this period. (d) A summary of the measures required under Article 11 which are envisaged as necessary to bring the bodies of water progressively to the required status by the extended deadline, the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation are set out in the river basin management plan. A review of the implementation of these measures and a summary of any additional measures shall be included in updates of the river basin management plan. 5. Member States may aim to achieve less stringent environmental objectives than those required under paragraph 1 for specific bodies of water when they are so affected by human activity, as determined in accordance with Article 5 (1), or their natural condition is such that the achievement of these objectives would be infeasible or disproportionately expensive, and all the following conditions are met: (a) the environmental and socioeconomic needs served by such human activity cannot be achieved by other means, which are a significantly better environmental option not entailing disproportionate costs; (b) Member States ensure, for surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably

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have been avoided due to the nature of the human activity or pollution, for groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution; (c) no further deterioration occurs in the status of the affected body of water; (d) the establishment of less stringent environmental objectives, and the reasons for it, are specifically mentioned in the river basin management plan required under Article 13 and those objectives are reviewed every six years. 6. Temporary deterioration in the status of bodies of water shall not be in breach of the requirements of this Directive if this is the result of circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen, in particular extreme floods and prolonged droughts, or the result of circumstances due to accidents which could not reasonably have been foreseen, when all of the following conditions have been met: (a) all practicable steps are taken to prevent further deterioration in status and in order not to compromise the achievement of the objectives of this Directive in other bodies of water not affected by those circumstances; L327/10 EN Official Journal of the European Communities 22.12.2000 (b) the conditions under which circumstances that are exceptional or that could not reasonably have been foreseen may be declared, including the adoption of the appropriate indicators, are stated in the river basin management plan; (c) the measures to be taken under such exceptional circumstances are included in the programme of measures and will not compromise the recovery of the quality of the body of water once the circumstances are over; (d) the effects of the circumstances that are exceptional or that could not reasonably have been foreseen are reviewed annually and, subject to the reasons set out in paragraph 4(a), all practicable measures are taken with the aim of restoring the body of water to its status prior to the effects of those circumstances as soon as reasonably practicable, and (e) a summary of the effects of the circumstances and of such measures taken or to be taken in accordance with paragraphs (a) and (d) are included in the next update of the river basin management plan. 7. Member States will not be in breach of this Directive when: failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities and all the following conditions are met:



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(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water; (b) the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years; (c) the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and (d) the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option. 8. When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the application does not permanently exclude or compromise the achievement of the objectives of this Directive in other bodies of water within the same river basin district and is consistent with the implementation of other Community environmental legislation. 9. Steps must be taken to ensure that the application of the new provisions, including the application of paragraphs 3, 4, 5, 6 and 7, guarantees at least the same level of protection as the existing Community legislation.

part IV

International Experience from other Regions of the World: Comparative Perspectives

Chapter Thirteen

Procedural System of Transboundary Water Cooperation in the Aral Sea Basin Dinara Ziganshina*

The law of international watercourses with its two basic norms of the equitable and reasonable use and the no-harm rule is one of those areas of international law where open-textured and elastic substantive rules prevail. Hence, procedural cooperation between riparian states and through joint bodies is an important means of giving concrete content to the stated obligations and ensuring that these are consistently implemented and complied with.1 Being an autonomous legal obligation itself,2 the general duty to cooperate regarding transboundary waters also translates into specific procedural obligations to establish joint bodies, to exchange information with riparian states, to consult with each other, to notify regarding proposed activities, to conduct environmental impact assessments, and to work together in emergency situations. The extent to which this repertoire of obligations is built into the existing legal architecture of transboundary water cooperation varies from basin to basin. This chapter takes the example of the * The views expressed in this chapter are those of the author and do not necessarily reflect the opinion of the Scientific Information Center of the Interstate Commission for Water Coordination (SIC ICWC). 1 GAOR 46th Sess. Suppl. No 10, UN Doc. A/46/10 of 29 April–19 July 1991, UN ILC, “Draft Articles on the Law of Non-navigational Uses of International Watercourses and Com­ mentaries Thereto and Resolution on Transboundary Confined Groundwater”, YILC II (1994), 105 para. 2 stresses that, within the law of international watercourses, the duty to cooperate provides “an important basis for the attainment and maintenance of an equitable allocation of the uses and benefits of the watercourse and for the smooth func­ tioning of the procedural rules.” 2 A survey with the broad support for this general obligation in treaty practice, decisional law, resolutions of international organisations and other international legal instruments is provided in the Special Rapporteur McCaffrey’s third report, UN Doc A/CN.4/406 and Add. l and 2 of 30 March 1987, 6 and 8 April 1987, “Report of the International Law Com­ mission on the Work of its Thirty-ninth Session”, YILC II (1987), 23–28. See also A. Tanzi / M. Arcari, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing, 2001, 183.

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Aral Sea basin to examine whether riparian states established a sound procedural system of cooperation to facilitate their interactions over shared waters.3 This contribution is organised as follows. The following section sets the scene by outlining the main characteristics of the Aral Sea basin and its major transboundary water issues. Section II provides a brief overview of the legal architecture for transboundary water cooperation in the region. Building blocks of a procedural system of transboundary water cooperation in the Aral Sea basin, including obligations to establish joint bodies, to exchange information with riparian states, to consult with each other, to notify regarding proposed activities, to conduct environmental impact assessments, to work together in emergency situations as well as compliance and dispute settlement arrangements which are explored throughout sections III–VIII. The concluding section summarises the main findings of the analysis and discusses possible ways to foster transboundary water cooperation in the region. I. Transboundary Water Issues in the Aral Sea Basin Afghanistan and five post-Soviet Central Asian republics (CARs)—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—share the Aral Sea basin, total available surface water resources of which comes to 116.5 km3/yr. The Amudarya and the Syrdarya are the two principal rivers belonging to the Aral Sea basin. The Amudarya, the biggest river in Central Asia with 79.2 km3/yr annual water runoff, originates in Tajikistan where 74 % of flow is formed, with Kyrgyzstan later contributing 2 % and Afghanistan and Iran 13.9 %.4 After flowing through Tajikistan the river then forms the border between Afghanistan and Uzbekistan (contributing 8.5 %), crosses the territory of Turkmenistan (1.7 %)

3 The key substantive norms of the law of transboundary watercourses as applied to the Aral Sea basin, namely, the rule of equitable and reasonable use, the no-harm rule, and obligations relating to environmental protection, have been discussed by the author elsewhere. This analysis has shown that due to their complex and indeterminate nature, these substantive norms necessitate that a sound procedural and institutional system is in place to interpret, implement, and develop these norms. See D. Ziganshina, “Inter­ national Water Law in Central Asia: The Nature of Substantive Norms and What Flows From It”, Asian JIL 20 (2012), 169. 4 Estimates on Afghanistan’s contribution to the Amudarya flow vary, primarily depend­ ing on which parts of Northern Afghanistan and its various sub-basins are considered as part of Amudarya basin. See V. Dukhovny / V. Sokolov, “Assessment of Water Resources in Northern Afghanistan, its Use and Impact on the Region of the Amudayra River Basin”, SIC IWC (2002), 17; M. Ahmad / W. Mahwash, “Water Resource Development in Northern Afghanistan and its Implication for Amu Darya Basin”, World Bank Working Paper No. 36 (2004), 3.

procedural system of transboundary water cooperation 283 and then returns to Uzbekistan where it discharges into the Aral Sea.5 The Syrdarya, with 37.2 km3/yr of average water runoff, is formed by the confluence of the Naryn and Karadarya rivers in Kyrgyzstan (75.2 % of flow); then the river flows across Uzbekistan (15.2 %) and Tajikistan (2.7 %) and discharges into the Aral Sea in Kazakhstan (6.9 %).6 The Amudarya and the Syrdarya sustain the basin countries’ economies, the livelihoods of their populations, and the health and integrity of freshwater ecosystems. High dependency on the availability and quality of the Aral Sea basin’s waters has already compromised a delicate ecological balance in the region and put its environmental integrity under stress. One of the most telling examples of this is the devastating degradation of the Aral Sea, its ecosystem, and surrounding areas. This degradation has also aggravated the competition for resources between sectors, such as irrigated agriculture and hydropower production; and ultimately between upstream and downstream countries trying to reach energy and food self-sufficiency. The large-scale hydropower development in the upper reaches of the Amudarya and Syrdarya may complicate the issues further—unless countries find peaceful and mutually acceptable ways to deal with the conflicts of interests over the planned measures and the regimes of water resources use. Pressure on water resources is further aggravated by the increasing demand for water due to population growth and expected decrease in river flow influenced by climate change. Additionally, demand for water in the basin is most likely to increase as a result of the expansion of irrigated lands in northern Afghanistan.7 This complex web of water, energy, and environmental issues can be addressed in a mutually beneficial way only through collaborative actions either by cooperation to increase economic benefits or by cooperation to mitigate negative effects. II. Legal Architecture of Transboundary Water Cooperation The legal architecture of transboundary water cooperation in the Aral Sea basin is composed of numerous agreements at bilateral, sub-regional, regional, and global levels. At a sub-regional level, the CARs concluded the 1992 Almaty Agreement that recognizes regional water resources as ‘common and integral’ and validates the Soviet management status quo over shared waters across Central Asia,8 the 5 Currently, the Aral Sea has in fact divided into two water bodies—the Small Aral Sea in the north and the Large Aral Sea in the south. The Syrdarya flows into the Small Aral Sea and the Amudarya into the Large Aral Sea. 6 CAWATERinfo, “Aral Sea Basin”, available at: . 7 W. Klemm / S. S. Shobair, “The Afghan Part of Amu Darya Basin. Impact of Irrigation in Northern Afghanistan on water use in the Amu Darya Basin”, FAO Paper, 2010, 10. 8 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on Cooperation in the Field

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1993 Kzyl-Orda Agreement that defines the ‘common objectives’ to be pursued to mitigate the Aral Sea crisis,9 and the 1998 Syrdarya Agreement regarding the use of the water and energy resources in the Syrdarya basin, and many others.10 Some of these states have also joined agreements at a regional level under the auspices of the Commonwealth of Independent States (the Commonwealth)11

of Joint Management of the Use and Conservation of Water Resources of Interstate Sources (signed 18 February 1992), available at: (an unofficial English translation) (1992 Almaty Agreement). 9 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on Joint Actions for Address­ ing the Problems of the Aral Sea and Its Coastal Area, Improving the Environment, and Ensuring the Social and Economic Development of the Aral Sea Region (signed 26 March 1993), available at: (an unofficial English translation) (1993 Kzyl-Orda Agreement). 10 Agreement between Turkmenistan and the Republic of Uzbekistan on Cooperation over Water Management Issues (signed 16 January 1996), available at: (an unofficial English translation); Agreement between the Governments of the Republic of Kazakhstan, the Kyrgyz Republic, and the Republic of Uzbekistan on the Use of Water and Energy Resources of the Syrdarya Basin (signed 17 March 1998), available at: (an unofficial English translation) (1998 Syrdarya Agreement); Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, the Government of the Republic of Tajikistan, and the Govern­ ment of the Republic of Uzbekistan on the Parallel Operation of the Energy Systems of Central Asian States (signed 17 June 1999), available at: (an unofficial English translation); Agree­ ment between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, and the Government of the Republic of Uzbekistan on Cooperation in the Area of Environment and Rational Nature Use (signed 17 March 1998), available at: (an unofficial English translation) (1998 Environmental Cooperation Agreement); Framework Convention on Environmental Protection for Sustainable Development in Central Asia (adopted 22 November 2006, not entered into force yet, signed by Kyrgyzstan, Tajikistan, and Turkmenistan) (2006 Framework Convention on Sustainable Development in CA). 11  Agreement on Interaction in the Field of Ecology and the Environmental Protection (signed 8 February 1992) (all Central Asian States are parties), available at: (in Russian) (1992 Commonwealth Agree­ ment on Environmental Interaction); Agreement between Government of the Republic of Belarus, the Government of the Russian Federation, the Government of the Republic of Kazakhstan, and the Government of the Republic of Tajikistan on the Main Principles of Interaction in the Field of Rational Use and Protection of the Transboundary Water Bodies (signed 11 September 1998, entered into force for Belarus, Russian Federation, and Tajikistan on 6 June 2002), available at: (1998 Commonwealth Agreement on Transboundary Waters); Agree­ ment on Informational Cooperation in the Field of Ecology and the Environmental Protection (signed 11 September 1998, among others ratified by Kazakhstan, Kyrgyzstan, and Tajikistan), available at: (1998 Commonwealth Agreement on Informational Cooperation).

procedural system of transboundary water cooperation 285 and under the auspices of UNECE.12 At a global level, Uzbekistan became a party to the UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourse Convention),13 a framework instrument that— although not yet in force—has already had a positive impact on the international legal environment through the process of codification and crystallization of the customary rules of international water law.14 All six states are also parties to a range of multilateral environmental agreements which cover water-related issues to different extents.15 It should be noted that Afghanistan, a riparian country to the Amudarya, is not formally involved in sub-regional water management. However, the legal basis for such cooperation exists within applicable customary and treaty norms. Several agreements were concluded between Afghanistan and Russia (and, later, the USSR) on frontier matters that touch upon water use issues, the most relevant of

12 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (done 17 March 1992, entered into force 6 October 1996), ILM 31 (1992), 1312, (1992 UNECE Helsinki Convention) (Kazakhstan, Turkmenistan, and Uzbekistan); UNECE Convention on Environmental Impact Assessment in a Trans­ boundary Context (done 25 February 1991, entered into force 10 September 1997), ILM 30 (1991), 800 (Espoo Convention) (Kazakhstan and Kyrgyzstan); UNECE Convention on the Transboundary Effects of Industrial Accidents (done 17 March 1992, entered into force 19 April 2000), ILM 31 (1992), 1330 (UNECE Convention on Industrial Acci­ dents) (Kazakhstan); UNECE Convention on Access to Information, Public Participa­ tion in Decision-Making and Access to Justice in Environmental Matters (done 25 June 1998, entered into force 30 October 2001), ILM 38 (1999), 517 (Aarhus Convention) (Kazakhstan, Kyrgyzstan, Tajikistan, and Turkmenistan). Afghanistan is not a member of the UNECE but will be eligible to participate in these agreements when the 2003 Amendment to the 1992 UNECE Water Convention, allowing accession by countries outside the UNECE region, comes into force. Amendment to arts 25 and 26 of the Con­ vention on the Protection and Use of Transboundary Watercourses and International Lakes, (adopted by decision III/1 of the Meeting of the Parties to the Convention of 28 November 2003, not in force). 13 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted 21 May 1997, not yet entered into force), ILM 36 (1997), 700 (UN Watercourse Convention). 14 A. Rieu-Clarke / F. R. Loures, “Still Not in Force: Should States Support the 1997 UN Watercourses Convention?”, RECIEL 18 (2009), 185. 15 Convention on Wetlands of International Importance Especially as Waterfowl Habi­ tat (signed 2 February 1971, entered into force 21 December 1975) UNTS Vol. 996 No. 14583; UN Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993), ILM 31 (1992), 818; UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996), ILM 33 (1994), 1328; UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994), ILM 31 (1992), 849.

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which include the 1946 Frontier Agreement between Afghanistan and the USSR,16 the 1958 Treaty concerning the regime of the Soviet-Afghan state frontier,17 the 1958 Protocol between the USSR and Afghanistan on the joint execution of works for the integrated utilization of the water resources in the frontier section of the Amudarya,18 and the 1978 Treaty of Friendship, Good-Neighbourliness and Coop­ eration.19 According to the rules of treaty succession, these agreements would still be in force to the extent that they create rights and obligations ‘attaching to’ the parts of the Amudarya basin to which they relate within the meaning of article 12 of the Vienna Convention on Succession of States in respect of Treaties.20 The following sections consider whether this multilevel legal framework enables a sound procedural system of transboundary water cooperation in the Aral Sea basin by envisaging obligations to establish joint bodies, to exchange information with riparian states, to consult with each other, to notify regard­ ing proposed activities, to conduct environmental impact assessments, to work together in emergency situations as well as compliance and dispute settlement arrangements. III. Cooperation through Joint Bodies Joint bodies are important institutions of transboundary water cooperation in the Aral Sea basin. The Interstate Commission for Water Coordination (ICWC), consisting of the heads of the water management authorities from the five CARs, was established by the 1992 Almaty Agreement to deal with transboundary water allocation and other water management issues in the basin. The executive

16  Frontier Agreement between Afghanistan and the Union of Soviet Socialist Republics (including Exchange of Notes) (signed 13 June 1946, entered into force 17 January 1947), UNTS Vol. 31 No. 476. 17  Treaty between the Government of the Union of Soviet Socialist Republics and the Royal Government of Afghanistan concerning the Regime of the Soviet-Afghan State Frontier (with Annexes and Protocols) (signed 18 January 1958), UNTS Vol. 321 No. 4655. 18  Protocol between the Union of Soviet Socialist Republics and Afghanistan on the Joint Execution of Works for the Integrated Utilization of the Water Resources in the Fron­ tier Section of the Amudarya (signed 25 June 1958), available at: . 19  Treaty of Friendship, Good-neighbourliness and Cooperation (signed 5 December 1978), UNTS Vol. 1145 No. 17976. 20 “Succession of States does not affect (. . .) obligations [or . . .] rights established by a treaty (. . .) relating to the use of any territory (. . .) and considered as attached to that territory” (art. 11) or “relating to the regime of a boundary” (art. 12), Vienna Convention on Succession of States in Respect of Treaties, (adopted 23 August 1978, entered into force 6 November 1996), UNTS 1946 No. 33356. See also Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, 7 (72 para. 123), where the Court considered that art. 12 reflects a rule of customary law.

procedural system of transboundary water cooperation 287 bodies of the ICWC include two basin water organisations at the Amudarya and the Syrdarya rivers, the Secretariat, the Scientific Information Centre and the Coordination-Metrological Centre. In 1993, the ICWC was placed under the newly established Interstate Council on the Aral Sea (ICAS), which in 1997 was merged with the International Fund for Saving the Aral Sea (IFAS).21 In addition to the ICWC, the organisational structure of the IFAS includes the Interstate Commission for Sustainable Development (ICSD) that seeks to coordinate and manage sub-regional cooperation in the field of environment and sustainable development in Central Asia.22 The contribution of these institutions to transboundary water cooperation in the region is significant. In addition to providing a forum for information exchange, capacity building, conducting and coordinating research, and joint projects, these bodies have played a profound role in law development and implementation in the years after independence. Thus, protocols adopted in ICWC quarterly meetings not only set up water allocation quotas for each country and the Aral Sea but also try to accommodate irrigation and hydropower requirements as far as possible.23 These protocols also gave a green light to introducing contemporary approaches to water management such as integrated water resources management, strengthening informational cooperation, decision support systems, and automation of head water facilities. Despite their positive influence, the existing institutions have also been criticised for their failure to include main stakeholders in their decision-making frameworks, lack of inter-agency coordination and transparency, low financial sustainability, and unfair geographical distribution of executive bodies.24 Indeed, the fact that the ICWC has no representatives from either energy or environmental sectors and insufficiently coordinates its activity with other sub-regional 21  The International Fund for saving the Aral Sea (IFAS) is an interstate organisation founded to develop and finance environmental and scientific-practical projects and programs aimed at environmental improvement in areas under the impact of the Aral Sea disaster as well as at solving common socio-economic problems in the region. In 2008, the IFAS was granted observer status in the UN GA. See UN GA “Resolution on Observer status for the International Fund for Saving the Aral Sea in the General Assem­ bly”, UN GAOR, 63rd Sess., Agenda Item 156, UN Doc. A/C.6/63/L.13 of 14 November 2008. 22 Agreement between the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, Turkmenistan, and the Republic of Uzbekistan on the Status of IFAS and its Organizations (signed 9 April 1999), available at: (an unofficial English translation). 23 Information about ICWC meetings available at: . 24 “Strengthening the Institutional and Legal Frameworks of the International Fund for Saving the Aral Sea: Review and Proposals”, Discussion paper prepared under the project ‘Regional Dialogue and Cooperation on Water Resources Management in Central Asia’ 2010, available at: .

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organisations may undermine its ability to take a strategic and integrated approach to transboundary water management in the Amudarya and Syrdarya basins. Intentions to establish a basin-wide advisory body, bringing together all stakeholders, for each river basin organisation incorporated into a new draft agreement on organisational structure,25 and current efforts to restructure the existing institutional framework led by the IFAS Executive Committee and UNECE seek to address some of these shortcomings. The attempts to advance the institutional framework of transboundary water cooperation in Central Asia have been undertaken within two Aral Sea Basin Programs (ASBP)26 with the support of the World Bank, European Union, and the Asian Development Bank. Most recently, under the ASBP-3, the UNECE Programme on Regional Dialogue and Cooperation on Water Resources Management in Central Asia provided assistance to the IFAS Executive Committee and other regional institutions to analyze the needs for reforms in the institutional setting for transboundary water management in the sub-region.27 Based on the 2009 Joint Statement of the Heads of State, inputs from sub-regional and national experts, and proposals voiced during meetings international consultants put forward two options for improving the institutional framework for cooperation in the sub-region. The first (softer) option suggests strengthening the existing mechanism for sub-regional cooperation through better coordination between interstate organizations, clarification of their responsibilities, and introduction of integrated water resources management principles and a fairer geographical distribution of seats of regional bodies.28 The second (more radical) alternative advises countries to establish a new sub-regional organization by transforming IFAS into a consolidated sub-regional organization dealing with sustainable development, environmental protection, and integrated water resources management and setting up international river basin commissions for the Amudarya and 25 Art. 6 (7) Draft Agreement on Strengthening the Organisational Structure for Trans­ boundary Water Management, Protection and Rational Use in the Aral Sea Basin (Ver­ sion 1/2007) (on file with author). 26 In 1994, the heads of the Central Asian Republics (CARs) decided to adopt the Pro­ gramme on concrete actions for environmental improvement in the Aral Sea basin over the next three to five years (ASBP-1). In 2002, they approved the Programme for concrete actions on environmental and socio-economic improvement in the Aral Sea basin for 2003-2012 (ASBP-2), and in 2012 the ASBP-3 was approved by all CARs. 27 Project ‘Regional Dialogue and Cooperation on Water Resources’ Management in Cen­ tral Asia’ implemented by the IFAS Executive Committee and UNECE, financed by the government of Germany through Deutsche Gesellschaft für Internationale Zusamme­ narbeit GmbH (GIZ—formerly known as ‘Deutsche Gesellschaft für technische Zusam­ menarbeit GmbH’) in the framework of the Berlin Water Process. The commitments to improve the organisational structure and legal framework of the IFAS were expressed by the Presidents of five CARs at the IFAS summit in Almaty, 28 April 2009. 28 Discussion paper on Strengthening the Institutional and Legal Frameworks of the IFAS, supra note 4, at 23.

procedural system of transboundary water cooperation 289 Syrdarya instead of the current basin water organizations.29 These recommendations met a mixed response in the countries and remain subject to further discussion. Whatever choices are made to improve existing institutional setup, the results should contribute to smooth and effective functioning of a procedural system of transboundary water cooperation in the region. IV. Regular Information Exchange and Consultations Regular information exchange and consultations have become key elements of an international legal body of procedural norms governing transboundary waters. They serve as tools for riparian states to reach and maintain an equitable balance of uses and benefits, and prevent transboundary harm.30 As a matter of general legal duty,31 the Aral Sea countries shall, on a regular basis, exchange readily available data and information concerning an international watercourse (article 9 of the UN Watercourse Convention and article 13 the 1992 UNECE Helsinki Convention). In contrast, the Commonwealth and sub-regional agreements require their parties to ‘promote’ rather than ensure that the information on international watercourses is shared. Thus, the 1998 Commonwealth Agreement on Transboundary Waters requires countries “to establish principles of cooperation governing regular information exchange” (article 2) and the 1992 Almaty Agreement provides that the parties “shall facilitate a wide information exchange” (article 5). The scope of information subject to exchange in the Commonwealth treaties and treaties specific to states in the Aral Sea basin is rather wide but the content is less specific. As for the type of information to be shared, these agreements refer to “radioecological monitoring, water chemistry and hydrometeorology of water bodies” and “matters related to the Convention” (articles 2 and 3 1998 Commonwealth Agreement on Transboundary Waters); “scientific and technical progress in the field of water management, complex use and protection of water resources” and the results of “joint studies” and “expert appraisals of project plans of water management facilities and economic assets” (article 5 1992 Almaty Agreement); “[t]he level and volume of water in frontier rivers and (. . .) precipitation in the

29 Ibid., 29. 30 S. C. McCaffrey, The Law of International Watercourses—Non-navigational Uses, 2007, 477; R. Higgins, Problems and Process: International Law and How We Use it, 1994, 136. 31  A broad recognition of the need for the systematic exchange of a wide range of data and information relating to international watercourses and ultimately crystallization of this general obligation into a customary rule is illustrated by the Special Rapporteurs in their reports. See e.g. second report by S. Schwebel, UN Doc. A/CN.4/332 and Add. 1 of 24 April and 22 May 1980, YILC II (1980); The third report of S. C. McCaffrey, supra note 2, and the fourth report of S. C. McCaffrey, UN Doc. A/CN.4/412 and Add. l and 2 of 3 March, 3 and 9 May 1988, YILC II (1988).

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interior of the territory of the two Parties as might avert danger or damage from flooding” (1958 Soviet-Afghan Frontier Agreement);32 ecology and environmental protection, including information about transboundary transport of pollutants and possible transboundary impact of planned measures (articles 1 and 3 1998 Commonwealth Informational Cooperation Agreement); and “full information on water resources use, water use infrastructure, legal and other documents that define status of water as a resource, and water use procedure in the republics” (paragraph 6 1991 Statement of the Heads of the CARs’ water authorities). If taken together, these provisions are useful in defining the content of the information to be exchanged in the Aral Sea basin. However, as regional and basin-specific treaties, these instruments could have been even more specific in exemplifying the relevant data to be shared, according to the characteristics and needs of the basin. This would have better provided the riparian countries with the material necessary to comply with their substantive obligations. The language of existing instruments is sufficiently precise with respect to the time when data and information should be provided and less so on the means of exchange. In requiring the “regular” exchange of data and information, as distinct from ad hoc provision of information concerning planned measures, this customary rule calls for establishing “an ongoing and systematic process” of information flow between countries sharing an international watercourse.33 Riparian countries are generally free to choose how to transmit relevant data and information—directly or indirectly—while the 1992 UNECE Helsinki Convention indicates joint bodies as a preferential platform for information exchange.34 State practice around the world, including in Central Asia, also demonstrates that the most effective way to establish a regular information exchange is through an institutional mechanism or a specific information system established for the river basins concerned. In Central Asia, the heads of the countries have identified the development of a sub-regional information exchange system as a priority area in the ASBPs.35 The establishment of a unified information system on water resources use, monitoring of irrigation lands, and hydrometeorological support is included in the main tasks of ICWC.36 The Central Asia Regional Water Information Base (CAREWIB) was developed in response to this, with the aims of ensuring transparency and

32 Art. 17 1958 Soviet-Afghan Frontier Treaty. 33 1994 ILC Commentaries, supra note 1, at 108, para. 4. 34 Art. 9 (2) 1992 UNECE Helsinki Convention. 35 ‘Database and Management Information System for Water and Environment’ Project was listed as a priority project in the ASBP-1. The ASBP-2 included as one of the activi­ ties ‘Strengthening Material/Technical and Legal Basis for Interstate Organisations, Development of Regional Information System Designed to Manage Water Resources of the Aral Sea Basin’. 36 Para. 2.6 1992 ICWC Statute.

procedural system of transboundary water cooperation 291 public awareness and supporting decision making in the water sector.37 The CAREWIB Information System and the CAWater-Info portal (www.cawater-info .net) are acknowledged as “an official system for keeping records, collection, use and analysis of data, and modelling of water and land resources in the Aral Sea basin”.38 Not only does this information platform seek to provide raw data and information on the water situation in the region but also analytical materials to facilitate better understanding and knowledge among main stakeholders. Although Afghanistan neither is a member of the ICWC nor participates in the information exchange in the sub-region, the CAREWIB project also seeks to collect and systematise the water-related data about this riparian country to the Amudarya river basin.39 These practical efforts are complicated, however, by the fact that the monitoring of water resources has significantly deteriorated over the past 20 years, with the quality and reliability of hydrometeorological data declining and the monitoring of water quality almost absent.40 Besides, the countries are still protective over their own data and credibility to each other and regional institutions in the delivery, use, and management of information is still to be established.41 Such credibility, substantially depending on the reliability and accuracy of information that countries bring into the decision-making process, could yield positive outcomes in terms of increased trust that might ease future interactions. Another set of problems relates to information management at the sub-regional level. It is widely acknowledged that the CAREWIB has played a prominent role in laying down the foundation for a regional information system on water and the environment in Central Asia but the project was also heavily criticized for not being able to achieve better results in terms of transparency, national ownership, and financial sustainability.42 Recently, a range of proposals have been put forward aimed at modernizing this regional information system in organizational, 37 The CAREWIB project is funded by the Swiss Agency for Development Cooperation and implemented by the Scientific Information Centre of the ICWC with the assistance of UNECE and the UNEP/GRID-Arendal Office in Geneva, in close cooperation with five national water management organisations. 38 CAREWIB, 2008 Progress Report (2009), available at: . 39 CAWATERInfo—Portal of Knowledge for Water and Environmental Issues in Central Asia. Database on Water Resources of Afghanistan, available at: and Knowledge Base on Afghanistan, available at: . 40 UN Doc ECE/MP.WAT/33; UNECE, Second Assessment of Transboundary Rivers, Lakes and Groundwaters, 2011, 16. 41 See e.g. K. Wegerich, “Hydro-hegemony in the Amu Darya Basin”, Water Policy 10 (2008), 71. 42 Discussions during a special session on the future of the CAREWIB project organized by the Executive Committee of the Interstate Fund for the saving Aral Sea on 18 Sep­ tember 2012.

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political, substantive, technical, and financial terms.43 Putting all these requirements into practice in light of very limited funds available will require serious commitments and dedication from regional organizations and national states. In addition to information exchange, riparian countries are also required to enter into consultations with each other with respect to their shared waters. As a matter of customary law,44 the UN Watercourse Convention strictly requires countries to consult each other at least in two instances: (i) when planned measures in one country may cause significant transboundary effect in another, and (ii) when it is necessary to achieve and maintain equitable and reasonable use. The former case will be considered in the section below on notification on planned measures and other related obligations. As far as the latter is concerned, the Convention states: [i]n the application of article 5 [on equitable and reasonable utilization and participation] or paragraph 1 of article 6 [on factors relevant to equitable and reasonable utilization], watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.45

To date, the agreements concluded under the umbrella of the Commonwealth and within the Aral Sea basin make no direct reference to regular consultations. The only exception is article 3 of the 1998 Commonwealth Agreement on Transboundary Waters, which requires the parties to enter into mutual consultations when they develop water protection measures. For the rest, the regional and sub-regional agreements encompass consultation mainly as a means of dispute settlement.46

43 See e.g. N. Denisov / B. Libert, “Vision for Water Information in Central Asia”, 2012, available at: . 44 McCaffrey, supra note 30, at 476, 480. 45 Art. 6 (2) UN Watercourse Convention; McCaffrey, supra note 30, at 478. 46 See e.g. art. 14 1999 IFAS Agreement; art. 12 Agreement between the Government of the Republic of Kazakhstan and the Government of the Kyrgyz Republic on the Use of Water Management Facilities of Intergovernmental Status on the Rivers Chu and Talas, Astana (signed 21 January 2000), available at: ; art. 7 Agreement between the Government of the Republic of Kazakhstan, the Government of the Kyrgyz Republic, the Government of the Republic of Tajikistan and the Government the Republic of Uzbekistan on Cooperation in the Sphere of Hydromet, Bishkek (signed 17 June 1999), available at: , (Agreement on Hydromet); art. 13 1998 Commonwealth Agreement on Transboundary Waters; art. 7 1998 Commonwealth Informational Coop­ eration Agreement.

procedural system of transboundary water cooperation 293 V. Prior Notification on Planned Measures and Other Related Obligations The law of international watercourses provides for a definite procedural framework to aid countries in maintaining an equitable balance between their respective uses, when the need to consider new uses occurs.47 As a part of customary international law, riparian states have the obligations to exchange information, to conduct an environmental impact assessment, to give prior notification, and to consult each other on possible effects of planned measures that may have a significant adverse effect.48 Discussions in this section are centered on the obligation to give prior notification as the core of the procedural system applicable with respect to planned measures, while pointing out the principal terms of other related obligations. In the context of the Aral Sea basin, countries have not agreed on detailed procedures to be invoked in case of planned measures on international watercourses. The language of sub-regional agreements only goes as far as to suggest that water management projects are subject to ‘joint consideration’ by the parties concerned.49 The preambular recitals of the 1992 Almaty Agreement refer to the need for “coordinated and organised solution to the issues” and “unified and coordinated actions” but the operative part of the agreement falls short of specifying those procedures. Similarly, while the terms of article 10 of the 1998 Syrdarya Agreement clearly endorse that such matters as the construction of new water facilities, dam safety, water conservation issues, and wastewater disposal are subject to joint consideration by the countries, the procedures for such consideration remain to be defined. The 1998 Environmental Cooperation Agreement between Kazakhstan, Kyrgyzstan, and Uzbekistan stipulates that the Parties cooperate in the coordination of actions on building new facilities in frontier zones as well as facilities that may have transboundary adverse effects irrespective of their geographical location. Yet, again the treaty is silent about how this coordination should take place (article 2 (z)). Article 19 of the 1958 Soviet-Afghan Frontier Treaty requires prior agreement between the parties for the construction of new facilities or the introduction of any changes that are “likely to hinder navigation or influence the flow of water” or “may affect the flow of water and the state of the banks, and also cause damage thereto.”50 Finally, the 2006 Framework

47 1994 ILC Commentaries, supra note 1, at 111, para. 1. 48 See e.g. McCaffrey, supra note 30, at 409 (discussing “the procedural system applica­ ble in respect of planned measures”). See e.g. Affaire du Lac Lanoux (France v. Spain), Award, 16 November 1957, RIAA Vol. XII, 281; Gabčíkovo-Nagymaros Project, supra note 20, at 7; Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, ICJ Reports (2010), 14 (Pulp Mills case). 49 Afghanistan is not a party to these agreements. 50 Art. 19 (2), (3) 1958 Soviet-Afghan Frontier Treaty.

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Convention on Sustainable Development is more detailed in this regard although it is not yet in force. It determines that the principle that transboundary harm and other adverse effects are to be prevented and reduced, among others, through “prior, timely and accompanied by appropriate information notification of the Parties exposed to the danger of adverse effect and consultations in the spirit of good will” should “guide” the Parties in their relations (article 4). Existing joint bodies also lack a clear mandate that would stipulate their role in procedures concerning planned measures. The 1992 ICWC Statute gives the Commission the mandate to “coordina[te] implementation of large water-related works and joint use of existing water management potential of the countries”.51 Although positive in abstracto, these provisions carry little legal weight in the absence of relevant treaty obligations and agreed timetables. In this case, the UN Watercourse Convention and the 1991 Espoo Convention, with their sound and detailed procedural frameworks to guide countries in the case of planned measures, are of exceptional relevance for the countries in the Aral Sea basin. As a reflection of customary law,52 article 12 of the UN Watercourse Convention forcefully states, “[b]efore a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof.” As it follows from this and other relevant provisions, there are at least two preconditions for a duty of prior notification to arise. First, there shall be “planned measures”. Second, only planned measures “which may have a significant adverse effect upon other watercourse States” are subject to prior notification under this customary rule. McCaffrey and others stress that a determination of a likelihood of significant adverse effects is best made through an impact assessment.53 Supported by widespread state practice, environmental impact assessment (EIA) has become an essential part of inter-state cooperation on planned measures. Recently, this distinct form of public decision-making has reached the status of a customary obligation for activities that may have a transboundary impact.54 In clarifying the legal nature of EIA in an international domain, the International Court of Justice (ICJ) stated in the recent Pulp Mills case:

51 Para. 2.5 1992 ICWC Statute. 52 McCaffrey, supra note 30, at 471; S. Vinogradov et al., “Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law”, UNESCO-IHP PC-CP Series 2 (2003), 55. 53 McCaffrey, supra note 30, at 475. 54 Having considered implicitly the issue of transboundary environmental impact assess­ ments in a few previous cases, the ICJ has stated in the recent Pulp Mill case: [I]t may now be considered a requirement under general international law to under­ take an environmental impact assessment where there are a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.

procedural system of transboundary water cooperation 295 [D]ue diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable [to] affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.55

In addition to this customary obligation, the 1992 Commonwealth Agreement on the Environmental Interaction, the 1998 Commonwealth Agreement on Informational Cooperation, and the 2006 Framework Convention on Sustainable Development in CA also require parties to conduct assessments, harmonise national EIA procedures, and exchange information about those assessments.56 However, some level of legal uncertainty with respect to these assessments remains, given that these agreements envisage diverse thresholds of harm potential to trigger the obligations to conduct EIA. Customary law and the 1991 Espoo Convention require a likelihood of ‘significant’ adverse impact/harm to be foreseen for conducting a transboundary EIA.57 The 2006 Framework Convention on Sustainable Development in CA, the 1992 Commonwealth Agreement on the Environmental Interaction and the 1998 Environmental Cooperation Agreement lower the threshold of risk by requiring the likelihood of ‘adverse’ impact or ‘any’ impact that potentially may cross a border when deciding whether a transboundary EIA is required.58 While the presence of different standards does not help to increase consistency and coherence of legal frameworks in general, the threshold of significant harm seems to be the minimum which the CARs have to respect according to customary law requirements.

Pulp Mills case, supra note 48, at 61 para. 204. See also Separate Opinion of Justice Weera­mantry, Request for an Examination of Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs. France), Order, 22 September 1995, ICJ Reports (1995), 344. Weeramantry states that the princi­ple of a transboundary environmental impact assessment was “gathering strength and international acceptance, and [had] reached the level of general recognition [such that the] Court should take notice of it”; Gabčíkovo-Nagymaros Project, supra note 20. 55 Pulp Mills case, supra note 48, at 61 para. 204. See also Judge Weeramantry’s separate opinion. 56 Arts 2, 3 1992 Commonwealth Agreement on the Environmental Interaction; arts 2 (1), 3 1998 Commonwealth Agreement on Informational Cooperation; arts 2 (b), 4 (6), 7 2006 Framework Convention on Sustainable Development in CA. 57 See e.g. Principle 17 Declaration of the UN Conference on Environment and Develop­ ment, Rio de Janeiro, UN Doc. A/Conf.151/26 (Vol I) of 3–14 June 1992; GAOR 56th. Sess. Suppl. No. 10, UN Doc. A/56/10 of 23 April–1 June and 2 July–10 August 2001, “Com­ mentary to the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities”, in: YILC II (2001), 157, para. 1, art. 7. 58 Art. 2 (b) 2006 Framework Convention on Sustainable Development in CA; 1992 Com­ monwealth Agreement on Environmental Interaction uses the expression “affect or may affect the interest” and the 1998 Commonwealth Environmental Cooperation Agreement—“have or may have impact”.

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Currently, the World Bank is supporting the preparation of an Assessment Study for the proposed Rogun Hydropower Plant (HPP) in Tajikistan to assess its (a) techno-economic/dam safety and (b) environmental/social impacts.59 The Techno-Economic Assessment Study (TEAS) conducts the analysis of technoeconomic aspects of the construction of the Rogun HPP, including dam type, dam height, construction phasing, reservoir operations, and dam safety issues, and the entire Vaksh River Development Masterplan.60 The Environmental and Social Impact Assessment (ESIA) addresses the environmental, socio-economic, and cultural situation at the project site, identifies potential impacts, including the cumulative impact of the entire Vakhsh river cascade on the relevant areas of Tajikistan and all the riparian states. Among others, the ESIA will assess Tajikistan’s energy policy from environmental and social perspectives (strategic impact assessment) and in terms of riparian and cross-border impacts (regional impacts).61 The Assessment Studies will be undertaken separately but in parallel, and the recommendations of the TEAS will include possible trade-offs between technoeconomic issues and the safeguard issues of dam safety, environmental and social concerns, resettlement, and impacts on other riparian states.62 Assessments will be based on Tajik laws and regulations, international good practices, and the World Bank’s Safeguard Policies,63 which are to be consistent with relevant customary and treaty law.64 59 World Bank, “Techno-economic Assessment Study (TEAS) for the Rogun Hydroelec­ tric Power Plant Construction Project. Terms of Reference”, 3 April 2010; World Bank, “Environmental and Social Impact Assessment Study (ESIA) for the Rogun Hydroelec­ tric Power Plant Construction Project. Terms of Reference”, 3 April 2010, available at: . 60 A river development masterplan is a key document that defines all development activi­ ties in a given area. 61 Such regional impacts might include but are not limited to “the impacts (during the construction and operating phases of Rogun HPP) on irrigation, agriculture, drinking and industrial water supplies, sanitary flows, sedimentation, flooding etc. in the down­ stream countries, as well as impact on the agreed flow of water to Aral Sea and impacts on the downstream countries relating to the safety of the dam.” ToR for the Rogun TEAS, supra note 61, at 4. See also ToR for the Rogun ESIA, supra note 61, para. 27 and also paras 16, 33, 44, 47, 51, 52, 55, 56, 58, and 60. 62 Terms of Reference for the Rogun TEAS, supra note 59. 63 World Bank Environmental Policies include Operational Policy (OP) 4.01 Environmen­ tal Assessment, OP 4.04 Natural Habitats, OP 4.09 Pest Management, OP 4.36 Forestry, OP 4.37 Safety of Dams; Social Policies include OP 4.11 Physical Cultural Resources, OP 4.12 Involuntary Resettlement, and OP 4.10 Indigenous Peoples; and Legal Policies include OP 7.60 Disputed Areas and OP 7.50 International Waterways, available at: . 64 As an organisation with international legal personality, the World Bank committed to pursue its activities in compliance with international environmental instruments. Para. 3 OP 4.01 states that “[t]he Bank does not finance project activities that would

procedural system of transboundary water cooperation 297 The foregoing analysis shows that the Aral Sea basin countries have expressed their intentions to conduct transboundary EIAs in forceful language. However, specific and clear procedures on water-related assessments are still lacking in the sub-region. The content and process of transboundary EIA have not been set out in a single instrument that would be applicable to all countries of the Aral Sea basin. The 1991 Espoo Convention’s requirements on the type of information to be included in transboundary EIA and the procedures to be followed are obligatory only for Kazakhstan and the Kyrgyz Republic as its parties. The Guidelines on EIA in a Transboundary Context for the CARs developed by the countries’ experts on the basis of the 1991 Espoo Convention provide a good starting point but cannot substitute binding commitments.65 VI. Emergency Cooperation The devastating effects of natural and human-induced disasters on people and the environment ignore political boundaries and call for active cooperation between the countries in order to prevent, reduce, and eliminate the harmful effects of these events. The UN Watercourse Convention treats these cases as a matter of ‘emergency’, understood as a situation that causes, or poses an imminent threat of causing, serious harm to watercourse States or other States and that results suddenly from natural causes, such as floods, the breaking up of ice, and slides or earthquakes, or from human conduct, such as industrial accidents.66

Accordingly, what distinguishes an ‘emergency’ from other situations or activities that may have transboundary effects is that it involves ‘imminent threat’ and results ‘suddenly’.67 The need for cooperation throughout all phases of an emergency situation, such as prevention, preparedness, response and restoration, gains even greater significance in light of continuing extreme climatic and other events.

contravene the obligations of the country, pertaining to project activities, under rel­ evant international environmental treaties and agreements”. 65 UNECE, “UNECE Draft Guidelines on EIA in a Transboundary Context for Central Asian Countries”, Meeting of The Parties to the Convention on Environmental Impact Assess­ ment in a Transboundary Context Working Group on Environmental Impact Assessment, 10th Sess. 21–23 May 2007, Item 4 (d) of the provisional agenda, UN Doc. ECE/MP.EIA/ WG.1/2007/6. See also OSCE, “Environmental Impact Assessment in a Transboundary Context: Pilot Project in Central Asia”, Project Report 2010, available at: . 66 Art. 27 UN Watercourse Convention. 67 See Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Merits), Judgment, 9 April 1949, ICJ Reports (1949), 4 on the discussion of ‘imminent threat’.

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Today, the general duty to notify each other and cooperate in cases of emergency is widely endorsed in state practice.68 Its application to transboundary waters, as a matter of customary law, finds reflection in the forceful and precise language of articles 27 and 28 of the UN Watercourse Convention and articles 3 ( j) and 14 of 1992 UNECE Helsinki Convention. These obligations set forth both anticipatory and responsive actions for states. The treaty law under the umbrella of the Commonwealth envisages preventive and responsive obligations that deal with emergency situations in forceful language. In the 1998 Commonwealth Agreement on Transboundary Waters parties assume the due diligence obligation to take measures to reduce and eliminate the effects of natural and human-induced emergencies, such as floods, ice drift, and accidental pollution (articles 1 and 6). The 1992 Commonwealth Agreement on Environmental Interaction obliges its parties to set up and maintain special forces and assets in order to prevent ecological disasters and accidents as well as eliminate their effects (articles 2–4). It is a main task of the parties to the 1998 Commonwealth Agreement on Informational Cooperation to alert each other about environmental emergencies, accidents and hazardous waste transfers (article 3). Interestingly, the terms of the 1998 Commonwealth Agreement on Transboundary Waters state that parties (not only the state where the emergencies (may) originate) assume a due diligence obligation to take measures, individually or when necessary in concurrence with other interested parties, to reduce and eliminate the effects of natural and human-induced emergencies, such as floods, ice drift and accidental pollution (articles 1 and 6). In the context of the Aral Sea basin, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan must cooperate to ensure timely forecasting of natural hydrometeorological events and provide assistance to each other on the basis of international law in case of their occurrence.69 Under the Agreement on the Parallel Operation of the Energy System, these four countries must provide mutual assistance in cases of emergency by implementing remedial actions on energy facilities and restoring normal energy supply for consumers (article 8). In their efforts to prevent emergencies arising from the possible breakdown of tailings and rock dump due to adverse natural, climatic and hydrometeorological conditions, Kazakhstan, Kyrgyzstan and Uzbekistan agreed to assess the danger, prepare tailings deactivation and closure projects, and undertake activities on rock dump

68 P. Birnie et al., International Law and the Environment, 2009, 571; G. Handl, “Trans­ boundary Impacts”, in: D. Bodansky et al. (eds), The Oxford Handbook of International Environmental Law, 2007, 542; International Law Association, Berlin Rules, Commit­ tee on Water Resources, “Water Resources Law—Fourth Report”, in: ILA, Report of the Seventy-First Conference, Berlin 2004, 33; Principle 18 Rio Declaration. 69 Preambular recitals 1999 Agreement on Hydromet and art. 3 on the forms of cooperation.

procedural system of transboundary water cooperation 299 reclamation.70 Further, the 1996 Agreement on the Use of Fuel and Energy Resources and Water Resources, Construction and Operation of Gas Pipelines requires these three countries to nominate the ministries and agencies in charge of information exchange on the occurrence or likelihood of occurrence of contingency situations in reservoir cascades, hydropower stations, and interconnection lines and to participate jointly in their prevention and elimination.71 Finally, the 1958 Soviet-Afghan Frontier Treaty prescribes parties to exchange information in order to avert danger or damage from flooding, and alert each other during periods of high water.72 VII. Compliance Review At the basin level, beyond the basic procedural rules related to notification, consultation and exchange of information, specific legal norms related to implementation and compliance are relatively limited. The sub-regional agreements do not provide for a compliance review procedure. Article 2 of the 1992 Almaty Agreement prescribes in forceful language that parties shall ensure that the agreed regime is ‘strictly observed’ but it remains unclear how non-compliance shall be detected and monitored.73 The same agreement stipulates that, by 1992, parties should have elaborated economic and other measures to deal with cases of non-compliance with the established regime and limits of water use; however, such mechanisms are still lacking.74 Some disjointed attempts to monitor and facilitate compliance have been undertaken under the 1998 Syrdarya Agreement. Article 5 stipulates that parties shall take appropriate measures to ensure compliance with the provisions of the agreement through various forms of guarantees, such as credit lines, security deposits, and others.75 Article 7 of the 2001 Protocol adopted to implement the 1998 Syrdarya Agreement states that, when necessary,

70 Arts 1–5 Agreement between the Government of the Republic of Kazakhstan, the Gov­ ernment of the Kyrgyz Republic, the Government of the Republic of Tajikistan, and the Government the Republic of Uzbekistan on Joint Activities on the Rehabilitation of the Tailings and Rock Dump that have Transboundary Effect (signed 5 April 1996), available at: (in Russian). 71  Art. 1 Agreement between the Government of the Republic of Kazakhstan, the Govern­ ment of the Kyrgyz Republic, and the Government of the Republic of Uzbekistan on the Use of Fuel and Water Resources, Construction and Operation of Gas Pipelines in Central Asian Region (signed 5 April 1996), available at: (in Russian). 72 Art. 17 1958 Soviet-Afghan Frontier Treaty. 73 Art. 2 1992 Almaty Agreement. 74 Ibid., art. 12. 75 Art. 5 1998 Syrdarya Agreement.

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the parties shall allow observers from other contracting parties access to water management facilities in the Syrdarya river basin operation area.76 Although a compliance control system is yet to be established in the sub-region, the activities of the ICWC and its executive bodies appear to provide a basis on which such a system can be built. Although the ICWC does not have a mandate to monitor compliance, its practice helps to establish a collective and transparent forum for preventing and addressing controversies. A recent development of subregional and national information systems on water and environmental issues under the aegis of the ICWC (discussed above) is one such example. VIII. Dispute Settlement Finally, in line with article 2 (3) of the UN Charter, states are under an obligation to settle their disputes, if these arise, by peaceful means. Dispute settlement mechanisms relating to transboundary waters are largely undeveloped in the Aral Sea basin treaties. The 1992 Almaty Agreement refers any dispute that could arise between the parties to the Ministers of Water Resources of the five CARs. In other words, disputes shall be resolved internally within the ICWC, the body comprised of the five water ministers and responsible for the implementation of this agreement. No dispute has been formally referred to the ICWC under this dispute settlement clause so far, most likely due to the fact that all controversial issues in the basin relate to inter-sectoral use of water. Accordingly, the ICWC acts to prevent and resolve emerging controversies and provides a forum where representatives of the five basin states can meet, discuss, and make binding decisions on contentious issues. The 1992 Agreement further states that “if necessary, an impartial third party can be involved”77 but fails to detail the procedure for such a dispute settlement, and further measures if a dispute cannot be resolved in this manner. Article 9 of the 1998 Syrdarya Agreement uses stringent language to prescribe that “[a]ny dispute or controversy under this agreement is subject of negotiation and consultations. If the dispute cannot be resolved in this manner, the issue shall be submitted to an ad hoc arbitral tribunal.” However, the agreement does not specify the rules and procedures by which such a tribunal shall operate. The sub-regional agreements do not contain a compromissory clause, providing for dispute resolution by the ICJ; neither have the countries accepted the ICJ jurisdiction or registered their sub-regional agreements on water with the UN

76 Protocol between the Governments of the Republic of Kazakhstan, the Kyrgyz Repub­ lic, and the Republic of Uzbekistan on the Use of Water and Energy Resources of the Naryn-Syrdarya Cascade in 2001 (signed 20 May 2001), available at: (in Russian). 77 Art. 13 1992 Almaty Agreement.

procedural system of transboundary water cooperation 301 Secretariat according to article 102 of the UN Charter78 in order for the Aral Sea basin countries to invoke them before the ICJ (or any other UN organ). IX. Transboundary Water Cooperation in the Aral Sea basin: A Way Forward Despite the challenging geopolitical and socio-economic environment, the CARs can mark the 20th anniversary of their transboundary water cooperation with some good results, the most prominent being the establishment of an institutional framework for cooperation under the umbrella of IFAS. The creation of ICWC in 1992 that was put forward and endorsed by the region’s water ministers is a good example of the cooperative spirit prevailing in transboundary water interactions in the basin. Over the years, ICWC and other IFAS bodies have played a prominent role in providing a forum for ongoing interactions and mutual learning between riparian states. Nevertheless, the need for improvement of the existing institutional framework is also evident. Surely, proactive collaborative efforts of riparian countries are at the core of any change but a coordinated and coherent effort from development partners and international organizations is also instrumental. The cooperative spirit in which ICWC and IFAS were born, pushed by the countries themselves, should be strengthened and supported, whereas unwise interventions that can cement divides should be avoided. It is also necessary to reach out to epistemic communities and bring together science and policy through capacity building initiatives and regional projects. Technical cooperation might demonstrate practical benefits of better water management and sow the seed of trust among riparian countries. Importantly, since no institutionalised framework for transboundary water cooperation that would also involve Afghanistan currently exists in the Aral Sea basin, capacity building initiatives and technical cooperation can bring about a rapprochement between Afghanistan and its neighbours on water related issues. International law, through its channels of peaceful communication and deliberation, is another important means of building trust and reaching shared understandings in the region that could be used more actively. As the analysis in this contribution has demonstrated, for the most part customary and treaty law create the obligations for the Aral Sea basin countries to exchange information with riparian states, to consult with each other, to notify regarding proposed activities, to conduct transboundary impact assessments, and to work together in emergency situations in stringent terms while leaving the content of these obligations as applied to the transboundary waters in the Aral Sea basin less defined. For example, a general minimum requirement on information exchange 78 Art. 102 Charter of the United Nations (signed 26 June 1945, entered into force 24 Octo­ ber 1945), Stat. 59 (1945), 1031.

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is set forth clearly as a matter of customary law, whereas the sub-regional agreements seem to fall short of indicating detailed provisions on information about specific characteristics of the region’s watercourses that would enable more effective implementation of the equitable and reasonable use rule in the basin. Similarly, the sub-regional treaties, which are mostly framework agreements, impose a set of obligations for the parties to exercise ‘coordinated management’ and prevent them from acting unilaterally rather than specifying a procedural system concerning planned measures in the basin. More consistent endeavours are required to ensure that impact assessment procedures for activities that may have transboundary impacts are set up on a reciprocal and equivalent basis either in national laws or in international instruments, such as the 1991 Espoo Convention. This would allow the countries to have the same minimum standards to be followed in the case of planned measures. It is unfortunate that relevant procedural provisions, if these exist, are scattered in various instruments, which are poorly connected to each other on their own. Inconsistencies in the formulation of the obligations are also widespread which does not increase the clarity of the norms. The different thresholds to trigger the obligations of notification and impact assessment and the lack of clarity and coherence in the documents defining an institutional structure of cooperation are illustrative in this regard. These shortcomings impede the ability of the countries to ascertain the required standards of their conduct and, ultimately, the ability of the law to generate behavioural (normative) expectations as its core function. Beyond the basic procedural rules related to notification, consultation and exchange of information, specific legal norms related to compliance and dispute settlement are relatively limited in the Aral Sea basin. The review of the compliance provisions embedded in sub-regional, regional, and global water-related agreements shows that much remains to be done if a sound compliance regime for transboundary water resources management is to be developed. This overview of the procedural system of transboundary water cooperation in the Aral Sea basin is not meant to be exhaustive but rather indicative of the scope of efforts already undertaken by the countries and further required to be pursued to tackle transboundary water challenges in the region. The good news is that at least there is an initial cooperative framework between the CARs on how to use and manage their shared waters. What is needed now is the goodwill to encourage more collaborative efforts and accelerate the process of effective communication and dialogue towards lasting cooperation between coun­tries and across communities.

Chapter Fourteen

The Jordan River: Legal and Institutional Aspects Marwan Haddad*

I. Introduction River basin water management at present is not limited to drinking water supply, navigation, irrigation, and flood management; it has been expanded dramatically to include more management components such as inter alia consideration of environmental and human uses, legal and institutional-administrative questions, water quality management, ecosystem needs, land and water use, harmonization of surface and groundwater use. In addition, it is important to note that the management of the environment within river basins is under increasing pressure to conserve ecosystems and to pursue a sympathetic approach to river management.1 The Jordan river basin (JRB) is shared by five riparian countries/sides2 including: Lebanon, Syria, Jordan, Israel, and Palestine3 (see Figure 1). Contention and * Email: [email protected], [email protected]. 1 M. Newson, Land, Water and Development: Sustainable Management of River Basin Systems, 2002, 1 et seq. 2 Sides was listed because Palestine is not yet an acknowledged/recognized state before the UN. According to UN GA Resolution on the “Status of the Occupied Palestinian Territory, including East Jerusalem”, UN Doc. A/RES/58/292 of 17 May 2004, Palestine is not a state yet and the status of the Palestinian territory occupied since 1967, including East Jeru­salem, remains one of military occupation. It affirms, in accordance with the rules and principles of international law and relevant resolutions of the UN, including Secu­ rity Council resolutions, that the Palestinian people have the right to self-determination and to sovereignty over their territory and that Israel, the occupying power, has only the duties and obligations of an occupying power under the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. 3 The UN GA voted on the 29 of November 2012 to grant Palestine non-member observer state status at the UN, while expressing the urgent need for the resumption

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dispute over the JRB includes inter alia issues of land, water allocation and use, refugees, water management, water needs, and political sovereignty. Furthermore, contention and dispute over the JRB has led to instabilities, uprisings, and wars between riparian countries/sides in the region making its sustainable management extremely difficult. Population growth, economic development, and changing regional values have intensified competition over water resources worldwide, leading to predictions of increased future conflicts over shared water supplies.4 In the region under discussion potential for conflict also stems from very unequal distribution of water resources—between the different riparian parties as well as between different population groups. This inequity is due in part to natural and climatological factors but also largely to the political and economic situation. Resulting water use conflicts are closely related to the political situation. Conflict resolution almost always has a political component or political implications.5 Since the end of the 19th century there has been Jewish immigration to Palestine which continues until the present time.6 Alongside this immigration, the demand of Jewish immigrants for water, including that of the JRB, has increased for various purposes, including domestic, agricultural and industrial. This has introduced a new riparian and has led to a decrease in control over the JRB waters and land resources on the part of the Palestinians as well as other JRB riparians. Since 1901 and continuing until the present many water plans and projects7 have been developed and presented to resolve and/or manage the JRB water

of negotiations between Israel and the Palestinians leading to a permanent two-state solution. Cf. UN Doc. A/RES/67/19 of 4 December 2012. 4 UNEP, Atlas of International Freshwater Agreements, 2002, 1, available at: ; V. Shiva, Water Wars, 2002, 72 et seq. 5 T. Allan, “Virtual Water Eliminates Water Wars? A Case Study from the Middle East”, in: A. Y. Hoekstra (ed.), Virtual Water Trade, Proceedings of the International Expert Meeting on Virtual Water Trade, 2003, 137; A. Jägerskog, “The Sanctioned Discourse—A Crucial Factor for Understanding Water Policy in the Jordan River Basin”, School of Oriental and African Studies (SOAS) Occasional Paper 41, 2001, 1, available at: . 6 A. Mohammad, Jordan River and the Zionist Conspiracy, 1964, 54 (published in Arabic); L. Schmida, “Israel’s Drive for Water”, The Link 17 (1984), 1 (3); A. M. Garfinkle, Israel and Jordan in the Shadow of War: Functional Ties and Futile Diplomacy in a Small Place, 1992, 39–40, 164–169, 184–185; T. Naff / R. C. Matson (eds), Water In The Middle East: Conflict or Cooperation?, 1984, 43–47, 50–53; S. Lonergan / D. Brooks, Watershed: The Role of Fresh Water in the Israeli-Palestinian Conflict, 1994, 151–195. 7 Mohammad, supra note 6, at 54; Schmida, supra note 6, at 1 (3); M. Haddad / N. Mizyed, “Water Resources in the Middle East: Conflict and Solutions”, Proceedings of the European



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conflict and to reach partial or full agreement among the riparian parties.8 A list of the main water plans for the JRB is presented in Table 1. However, the concerned parties never sat around one table to discuss and settle the JRB water problems. Also the plans and projects did not consider Palestinians and their rights. The so-called Eric Johnston Mission and plan has been the most serious effort so far to resolve the conflict and manage the JRB.9 The Eric Johnston Mission conducted four round visits to the region between 1953–1955 to negotiate an equitable allocation of the flow of the Jordan river and its tributaries between the riparian states based on the amount of irrigable land within the watershed for each state. Johnston intended to promote cooperation among riparians and economic stability in the JRB. The Johnston plan, listed in Tables 1 and 2, was accepted by all technical committees of the four riparians (Palestinians were not involved). However it failed mainly because it did not get approval from the Arab League. In general, alternative solutions to present and future water shortages in the JRB region consist of improving water demand management practices, including: technical, financial, economic, institutional, legal, and educational measures; enhancing wastewater treatment and reuse; enhancing runoff management and various water harvesting techniques; bringing water from outside the region through water transport by land or sea or producing new and additional water resources by desalinating Table 1: Main Water Plans for the JRB Source/Plan Main Plan, 1953 Arab Plan, 1954 Cotton Plan, 1954 Johnston Plan, 1955

Lebanon – 35 450.7 35

Water allocation (mcm/yr) Syria Jordan 45 132 30 132

774 698 575 720

Israel

Total

394 182 1290 400

1213 1047 2345.7 1287

Data Source: Hudes 2006,10 and Haddadin 2004.11

Association of Middle Eastern Studies (EURAMES) Conference, Warwick University, 8–11 July 1993, 1–13. 8 M. Haddadin, Diplomacy on the Jordan River, 2004, 19–241; S. Attitli, Israel and Pales­ tine: Legal and Policy Aspects of the Current and Future Joint Management of the Shared Water Resources, 2004, 5; A. Wolf / J. Newton, Case Study of Transboundary Dispute Resolution: The Jordan River, available at: . 9 Haddadin, supra note 8. 10 K. Hudes, “Shared Water Resources in the Jordan River Basin”, Gonz. J. Int’l L. 1 (1997). 11  Haddadin, supra note 8.

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marwan haddad Table 2: Johnston Plan Water Allocation of the JRB by Source Lebanon

Hasbani Banias Jordan Yarmuk Side Wadis Grand total

35

Water allocation (mcm/yr) Syria Jordan 20 22 90

100 377

Israel

Total

375 25

35 20 497 492 243 1287

Source: Murakami 1995.12

brackish and sea water;13 and using a joint integrated approach for maximum future water management and resource sustainability, equality among riparians, and peace and stability in the basin and the region, such as the one presented by the author in the last section of this contribution. All these alternatives could be successfully implemented individually by each riparian country or side, although, for better peace and stability, efficiency, equity, and benefit, it would be preferable to implement on a basin wide scale. To prevent further water scarcity and instability within the JRB, it is important to reach a political settlement and water management agreement on JRB water among all JRB riparians. Such an agreement would help consolidate peace and stability within the JRB and the region as well as enhance regional cooperation among the riparians; enhance environmental protection and conservation in and within JRB; foster economic growth within the JRB and the region leading to better socio-economic conditions and quality of life for people; and minimize the pressure exerted on groundwater resources within the JRB. II. JRB Hydrology and Water Balance The JRB is 360 km long and extends over a catchment area of about 18,300 km²; about 82 % of this area is located within Arab territory (Lebanon, Syria, Jordan and Palestine). Hydrographically, the JRB is divided between the upper Jordan river, lake Tiberias, the Yarmuk river, and the lower Jordan river. Tributaries

12 M. Murakami, Managing Water for Peace in the Middle East, 1995, 236. Reproduced with the courtesy of M. Murakami. 13 M. Haddad / K. Lindner, “Sustainable Water Demand Management Versus Develop­ ing New and Additional Water in the Middle East: A Critical Review”, Water Policy 3 (2001), 143.



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Source: Map of the Jordan River Basin, reproduced with the courtesy of the Palestinian Authorities.14 Figure 1. JRB General Location and Watersheds

14 Friends of the Earth Middle East (FoEME), “Regional Master Plan for the Lower Jordan River”, available at: .

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north of lake Hula are called the upper Jordan river while the part from lake Tiberias to the Dead Sea is called the lower Jordan river.15 The most important tributaries of the JRB are the Hasbani in Lebanon, the Banias in Syria, and the Jordan river which flows from the north of historic Palestine. The Yarmuk river which originates in Syria enters the Jordan river south of lake Tiberias. The JRB system includes a series of wadi flows from the eastern and western side of the river. The JRB has an average total annual flow of 1,471 mcm/ yr (see Figure 1 and Table 3 below). The Jordan valley is a 130 km stretch between the Yarmuk river in the north and the Dead Sea in the south. Its altitude varies from 200 m (in the north) to over 400 m (in the south) below sea level, and its climate is semi-arid in the north and arid in the south.16 There are different estimates of total renewable water resources in the JRB. Yet, so far no official, verifiable data that is agreed upon by all riparians is available. Published data (e.g. see Table 3) indicates that the JRB water balance ranges from 1,256 to 1,850 mcm/yr with a difference of +/– 15 %.17 III. Water Availability versus Uses The JRB riparian countries as well as the Middle East region are experiencing moderate to high water stress and it is expected that by 2040, the whole population will be under high water stress.18 Accordingly, water is the most important and binding constraint for any future development in the JRB and the region.19 If present rates of natural and induced population growth and economic growth, 15 H. Al-Naser, “Jordan River Basin”, Proceedings of the Water Issues Conference: at Arabic and Regional Level, organized by Arab Thought Forum, Amman, Jordan, 31 March– 1 April 2010; J. Sosland, Cooperating Rivals: The Riparian Politics of the Jordan River Basin, 2007, 28. 16 J. Venot et al., “Dealing with Closed Basins: The Case of the Lower Jordan River Basin”, Paper prepared for the Stockholm World Water Week, August 2006, 3, available at: . 17 Ibid., at 3–7; N. El-Khateeb, Water Resources in the West Bank, 1989, 32–182; M. Haddad, “Water Scarcity and Degradation in Palestine as Challenges, Vulnerabilities and Risks for Environmental Security”, in: H. Brauch et al. (eds), Coping with Global Environmental Change, Disasters and Security—Security Threats, Challenges, Vulnerabilities and Risks, 2011, 409; Al-Naser, supra note 15; UN Doc. A/46/263- E/ 1991/88 of 19 June 1991; UN Doc. E/C.12/2002/11 of 20 January 2003; M. Zeitoun, Power and Water in the Middle East—The Hidden Politics of the Palestinian-Israeli Water Conflict, 2008, 136. 18 This water stress will drive the region into water unavailability for economic develop­ ment, lead to food shortages, and could consequently increase economic and political instability. 19 Haddad / Lindner, supra note 13; M. Haddad / N. Mizyed, “Non-Conventional Options for Water Supply Augmentation in the Middle East: A Case Study”, Water International 29 (2004), 232; M. Haddad, “Overview of Available Water Resources and Uses in the Jordan Valley”, in: H. Hoetzl et al. (eds), The Water of the Jordan Valley: Scarcity and Degradation of Ground Water and its Impact on the Regional Development, 2009, 465.



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Table 3: JRB Average Annual Water Budget Source 1.  Upper Jordan Dan Spring Hasbani Banias Subtotal (1): at Hula Loses/Use at Hula 2. Lake Tiberias Local/Surface runoff water at Banat Yacoub bridge Subtotal at lake Tiberias Local/Surface runoff water entering lake Tiberias from surrounding watershed Evaporation at lake Tiberias Subtotal discharge of lake Tiberias 3. Lower Jordan Yarmuk river Local/Surface runoff water entering the river from eastern and western surrounding slopes Annual basin balance 4. Dead Sea Net discharge to Dead Sea

Water Budget in mcm/yr Recharge Losses 245 138 121 504

100

140 544 200 474

270

492 505 1,871

370

1,471

Data Source: Al-Nasser 2010.20

including agricultural and industrial development within the JRB continue, within the near future all of the JRB water will be needed for drinking water demands only. Annual per capita water availability for the JRB riparians has been ranging from 188 m3 to 1,017 m3 (see Table 4 below). This availability in most JRB countries is projected to fall below 500 m3 in 2025 due to a high population growth rate and increased urban and rural water use. From the data of present and projected future water withdrawals of the JRB riparian countries and sides (see Table 4 below), it is evident that water will not be available for all sectors and that in particular the demands of the agricultural sector need to be reduced dramatically in order to fill the water demand gap. This means that the JRB riparians could eventually be importing more food instead of producing it. While importing more food is a viable option for countries with high earnings such as Israel, it will impose additional burdens on others such as Jordan and Palestine, leading to more poverty, political and economic instability, and possibly conflicts over water. Yet current water scarcity in JRB is not only natural (supply-induced) and technical (demand-induced), particularly for the Palestinians who are prohibited, by Israel’s use of military force, from reaching their land and water resources in the JRB. The current water situation in the JRB is characterized by prolonged Israeli

20 Al-Naser, supra note 15.

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marwan haddad Table 4: Water Supply and Demand among Jordan River Basin Riparians

Country

Jordan Israel Syria

Surface area in km2

Population

Annual per capita water withdrawal (m3) Domestic

Industrial

Agricultural

Total

1990

2025

1990

2025

1990

2025

1990

2025

1990

2025

2025 as % of AWR

89.2 21.1

4.3 4.7

12.2 7.9

54 65

54 126

7 20

15 41

185 322

145 229

246 407

214 396

292 141

185.2

12.3

33.3

41

41

20

23

956

642

1017

706

90

Lebanon

10.4

2.6

4.5

124

124

18

36

302

161

444

321

32

Palestine

5.9

1.9

6.2

38

50

0

0

150

140

188

190

NA

Note: (1) Assuming current Israeli military occupation of Palestinian land and water continues. AWR = Available Water Resources NA = Not Available Data Source: World Resources-WRI, 1996/1997.21

military occupation and one-sided control of large portions of the JRB recharge area and its water; lack of adequate water management actions; unilateral water management steps of the riparian countries, over withdrawal by some riparian countries; very unequal distribution of water resources in the region—between the different riparian states as well as between different population groups;22 lack of environmental conservation and protection of the JRB; lack of overall JRB political and water management agreement; and the limited hydrologic contribution of the natural and supplementary water resources within the JRB to the total water balance. Therefore, the initial and basic problem in the JRB is the political competition and control of JRB land and water. IV. Who Controls/Uses JRB Water? 1. Israeli Side Since the foundation of the State of Israel and the signing of the armistice agreement with the Arab countries in 1949, Israel has carried out the following projects:23

21  World Resources Institute (WRI) et al., World Resources—A Guide to Global Environ­ ment: The Urban Environment 1996–1997, 1996, 306–313, available at: . 22 Allan, supra note 5, at 137; Jägerskog, supra note 5. 23 Al-Naser, supra note 15.



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• Diversion of 145 m³ of the Jordan river water through a channel between lake Hula and the Sea of Galilee (lake Tiberias) after drying marshlands between 1953 and 1956; • Since 1956 conveyance of 70–110 mcm/yr from lake Tiberias to the southwest areas of the lake (Kinneret-Nissan channel project); • Diverting about 450–550 mcm/yr from the Jordan river—lake Tiberias to the Negev desert through the National Water Carrier, which originates at the northwest corner of lake Tiberias and has a length of 130 km; • Diverting about 10–15 mcm of salt water annually generated into the lake and around it to the lower Jordan river. Moreover, Israel has built 12 dams and ponds in the Golan Heights to collect rain water.24 2. Syrian Side • Syria has built about 46 dams during the period 1984–2009, with a storage capacity of about 200 mcm; • In addition to drilling about 7,000 wells in the Yarmuk basin, which is the main tributary of the lower Jordan river.25 3. Jordanian Side • In 2005, Jordan built the Unity Dam (Al-Wehdah in Arabic) with a storage capacity of 110 mcm, alongside drilling about 220 wells in addition to two desert earth dams to collect flood waters during winter; • For the last ten years Jordan has been diverting 100 mcm/yr of the Yarmuk river water to the King Abdullah canal; • Jordan has built a series of dams along the eastern side valleys of the Jordan river with a total storage capacity of about 112 mcm.26 Accordingly, the Yarmuk river basin is highly developed by the riparian states, such that its water sources are not sustainable and are subject to depletion and salinization.

24 See . 25 Wolf / Newton, supra note 8, at 3–12; H. Namrouqa, “Yarmouk Water Sharing Violations Require Political Solution”, The Jordan Times, 28 April 2012, available at: . 26 Wolf / Newton, supra note 8, at 3–12; D. Phillips et al., “The Water Rights of the Coriparians to the Jordan River Basin”, in: I. Khatib et al. (eds), “Water Values and Rights”, Proceedings of the International Conference on Water Values and Rights held in Ramal­ lah, Palestine, 2–4 May 2005, 728–750; F. Hof, “Dividng the Yarmuk’s Waters: Jordan’s Treaties with Syria and Israel”, Water Policy 1 (1998), 81–94.

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Source: Al-Nasser 2010. Figure 2. Yarmuk River Development

4. Lebanese Side Lebanon develops less than 10 mcm/yr of water from the Wazzani which is one of the tributaries of the Hasbani river.27 5. Palestinian Side28 Up to 1967, the Palestinians withdrew about 10 mcm/yr from the lower Jordan waters, and maintained 140 pumping stations. At present, the Palestinian side does not receive any water from the river Jordan and has no access to the river due to the prolonged military occupation by Israel. The Palestinian area along the river is considered a military/security zone by the Israeli army to prevent Palestinians from entering it and developing/cultivating their lands.29

27 Haddad / Mizyed, supra note 7. 28 Al-Naser, supra note 15. 29 Haddad / Mizyed, supra note 7.



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Table 5: Comparison of Historical and Current Water Recharge of the JRB Source To Dead Sea Yarmuk river Out of lake Tiberias Surface Runoff from Wadis (West and East)

Historical Recharge mcm/yr

Current Recharge mcm/yr

1,471 492 474 505

~100 ~35 ~15 ~60

Data Source: Al-Naser 2010.30

V. Alteration from Historical Recharge In comparing historical water recharge of the JRB with the present one, one can see that all hydrologic/recharge components of the JRB have altered greatly and to a detrimental level (see Table 5 above). With time, this condition could lead to a highly negative environmental quality of the JRB as well an unsustainable depletion of its resources. In addition, water supply to domestic and agricultural sectors will also be greatly impacted with regard to quality and quantity. So far the riparians have basically been developing water resources unilaterally. This has not only resulted in a water shortage throughout the region but also in a decrease in recharge to the Dead Sea and the drop of about 1 m/yr of sea level, reaching a serious level (below 430 m below sea level) and causing the creation of many sink halls and of substantial reduction in sea area. VI. Basin’s Legal Status Whereas there is to date no agreement between all riparians covering the basin in its entirety, there are some bilateral agreements applicable to parts of the basin. There is no agreement which relates to sharing the waters of the upper JRB, yet the following agreements have been concluded between the riparians of the lower JRB. 1. Agreements between Jordan and Syria Jordan and Syria have signed several bilateral agreements to develop the Yarmuk river. The riparians reached their first agreement in 1953, to construct several dams along the Yarmuk in an attempt to store irrigation water and generate

30 Al-Naser, supra note 15.

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hydropower.31 The Maqarin Dam (or ‘Unity Dam’)32 was the largest of the planned hydrological structures with the capacity to store 480 mcm and generate hydropower.33 It was first proposed in 1952 by Miles Bunger, an American attached to the Technical Cooperation Agency in Amman. The stored water was intended to irrigate lands in Jordan and Syria, while 75 % of the generated hydropower would go to Syria and 25 % to Jordan.34 According to article 9 of the agreement, Jordan was responsible for financing 95 % of the construction costs as well as the majority of the operation and maintenance costs. The agreement failed to specify a fixed quantitative allocation of the Yarmuk’s waters between Jordan and Syria and appears moreover to be strikingly unequal with regard to obligations and rights.35 While it acknowledges Syria the right to use the waters of all springs feeding the tributary and the main branch of the Yarmuk below Maqarin, Jordan is only entitled to use the “overflow from the reservoir” plus any “water superfluous to Syrian needs”.36 Finally the agreement also contained stipulations with regard to the formation of a Joint Syro-Jordanian Commission to supervise the execution of the agreement.37 Due to political constraints, caused in particular by the 1967 June War38 and Israel’s protest,39 the plans in the treaty were never fully implemented, rendering the treaty meaningless.40 On 3 September 1987, Syria and Jordan gave the implementation of their Yarmuk projects another try and signed the Agreement on the Yarmuk River, basically renewing the 1953 Treaty.41 They reaffirmed the necessity to build a joint unity dam at Maqarin. In particular this agreement stipulated that: (1) Syria and Jordan shall both have the right to water and electricity from the Unity Dam and

31  Agreement between the Republic of Syria and the Hashemite Kingdom of Jordan con­ cerning the Utilization of the Yarmuk Waters (signed 4 June 1953, entered into force 8 July 1953), UNTS Vol. 184 No. 2437. 32 Al-Wehdah in Arabic. 33 Wolf / Newton, supra note 8. 34 Cf. art. 8 (c) 1953 Yarmuk Water Treaty, supra note 31. 35 Cf. G. R. Pring / D. E. Frick, “Jordan River”, in: R. Wolfrum (ed.), Max Planck Encyclope­ dia of Public International Law, 2008 (online edition), available at: . 36 Cf. art. 8 (a), (b) 1953 Yarmuk Water Treaty. 37 Cf. art. 10 1953 Yarmuk Water Treaty. 38 The 1967 June War between Israel and the Arab States resulted in the Israeli occupation of the West Bank, Gaza and Syrian Golan Heights, cf. S. M. Akram / M. Lynk, “ArabIsraeli Conflict”, in: Wolfrum, supra note 35. 39 Israel feared that the realization of the projects would imperil its water supply by sig­ nificantly diminishing the flow of the Yarmuk, cf. R. Kharouf-Gaudig, Le Droit Interna­ tional de L’Eau Douce au Moyen-Orient Entre Souveraineté et Coopération, 2012, 258. 40 Cf. ibid.; N. Kliot, Water Resources and Conflict in the Middle East, 2005, 526. 41  Agreement Concerning the Utilization of the Yarmuk Waters (signed 3 September 1987), UNTS Vol. 1870 No. 31937.



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to use its lake, (2) Jordan will construct the Unity Dam and Syria has the right to use all springs that originate from its land situated in the Yarmuk basin, except those upstream of the dam with a water level less than 250 m, (3) Syria has the right to use 6 mcm of the Yarmuk river downstream of the dam to irrigate land along the riverbank when the dam reaches its maximum capacity of 110 mcm, and (4) Jordan has the right to use water that flows from the dam and from the producing electricity centre.42 Yet this agreement was also faced with difficulties in its implementation. The project works were again delayed due to contentions with Israel and also political tensions in Jordan and Syria.43 It has been noted that since the agreement was signed in 1987, the number of Syrian small earth dams increased from 26 to 48, while around 3,500 wells were drilled to pump water from the river basin.44 As a result, downstream flow of the river has dramatically decreased from 16 m³/s to 1 m³/s. In 2001, Syria and Jordan reached a third bilateral agreement over the Yarmuk river and construction of the Unity Dam.45 Due to financial and technical constraints the new agreement foresees a significant reduction in the dam’s size and storage capacity from 300 mcm in the 1987 Agreement to 110 mcm in the 2001 Agreement. The dam construction finally started in 2004, completed in September 2010, and launched in early 2011, with a smaller storage capacity (110 mcm). Moreover, a Joint Syro-Jordanian Commission was established. It was given independent administrative status and authority including conflict resolution powers (pending the final approval of both governments). Yet, due to increased upstream consumption in Syria and consecutive droughts, the dam’s reservoir remains unfilled.46 2. Peace Agreement between Jordan and Israel (1994) On 26 October 1994 Israel and Jordan signed the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan.47 In this treaty, Israel and Jordan inter alia agreed on allocations of water from the Jordan and Yarmuk rivers and from Araba/Arava groundwaters. The treaty’s water-related article 6

42 Cf. arts 2, 3, 8 1987 Yarmuk Water Treaty. 43 Kharouf-Gaudig, supra note 39, at 260. 44 Namrouqa, supra note 25. 45 D. Rosenberg, “The Yarmouk River Agreements: Jordan-Syrian Transboundary Water Management, 1953–2004”, The Arab World Geographer 9 (2006), 23–39. 46 N. Zawahri, “Governing the Jordan River System: History, Challenges, and Outlook”, JTWR 1 (2010), 125, available at: ; Hof, supra note 26. 47 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (signed 26 October 1994, entered into force 10 November 1994), UNTS Vol. 2042 No. 35325.

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stipulates at the very beginning that “the parties agree mutually to recognize the rightful allocations of both of them” over their shared waters. It is remarkable that the agreement sets forth, in article 6 (2) the no-harm rule (with respect to water quality and quantity aspects) to be applied to both sides. Moreover it refers to the fact that water and water-related issues can and should be used as mean of advancing cooperation.48 The article goes on to specify this cooperation, calling on the parties to help each other in times of water shortage, jointly protect the resource from pollution, exchange information, and conduct joint research on how to enhance the potential for water resources development.49 More specifically, the details regarding the implementation of article 6 and the allocation quotas are provided for in Annex II: (1) both countries agreed that Israel will take 25 mcm/yr (12 mcm in summer and 13 mcm in winter) from the Yarmuk river, (2) Israel will transfer to Jordan in the summer period 20 mcm/yr stored in lake Tiberias from winter flows in the Yarmuk, (3) Jordan can take an annual quantity of 10 mcm of desalinated water from about 20 mcm of saline springs that are diverted to the Jordan river, (4) operation and maintenance costs of all transfers are financed by Israel, and (5) both countries agreed on establishing a Joint Water Committee (JWC) of three members from each country that may have a number of specialized sub-committees for solving technical tasks and water management.50 Particulars regarding the JWC are laid down in article VII of Annex II.51 The JWC was given the responsibility of implementing the peace treaty as well as providing a forum for cooperation to, for example, facilitate information exchange.52 Yet it could also provide an environment for resolving water-related disagreements. It should be noted that there is no outside or third party involvement in the JWC. Although Israel and Jordan set out to implement the agreement, problems quickly arose due to lack of clarity regarding several of its provisions.53 Several regional and international news sources wrote that the agreement was clear in purpose but ambiguous in detail.54 In particular, there was a disagreement between the two sides about the additional water quantities/resources promised

48 Arts 6 (2), I (2) (c) Annex II 1994 Peace Treaty. 49 Art. 6 (4) 1994 Peace Treaty. 50 Arts I, II, VII Annex II 1994 Peace Treaty; on the treaty, see also Jägerskog, supra note 5, at 1; M. Manna, Water and the Treaty of Peace between Israel and Jordan, 2006, 1–7. 51  Art. VII Annex II 1994 Peace Treaty. 52 Art. VI 1994 Peace Treaty. 53 Pring / Frick, supra note 35. 54 See for example D. Rudge, “Water Pact Difficult to Implement”, The Jerusalem Post, 11 May 1997.



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to Jordan in article III of Annex II which had not been specified in space or time. Another point of contention concerned the quality of water transferred from lake Tiberias and the Yarmuk in 1997. Jordan blamed Israel for apparently supplying the former with contaminated water. As it turned out, the contamination in fact came from a Jordanian treatment plant.55 Accordingly and under pressure, the Jordanian government resigned.56 A third crisis arose in January 1999 when there was a severe drought due to shortage of rainfall. Israel consequently requested a reduction of its water deliveries to Jordan, which Jordan rejected.57 Both Israel and Jordan were exchanging accusations of breaching the agreement. However, throughout these three events and since 1994, the treaty was in effect, including both the operation of the JWC and other water and financial commitments, and both Israel and Jordan positively and pragmatically worked out their differences. 3. Palestinian-Israeli Accords On 15 May 1992, subsequent to peace talks in Madrid in 1991, Israel, Jordan and the Palestinians agreed to cooperate on hydrological data sharing, which had previously been withheld from the Palestinians, in the framework of the so-called Middle East Multilateral Working Group on Water in Vienna, Austria.58 On 13 September 1993, Israel and the PLO signed the so-called Oslo I Agreement, by which the two sides inter alia agreed to establish an ‘Israeli-Palestinian Continuing Committee for Economic Cooperation’, focusing, among other things, on cooperation in the field of water.59 This included the preparation of a water development program by experts from both sides, which was to specify the mode of cooperation in the management of water resources in the West Bank and Gaza Strip, as well as proposals for studies and plans on water rights and the equitable utilization of joint water resources.60 The signing of the agreement was a major breakthrough, with Israel for the first time accepting equitable utilization of joint water resources. In article VII of the agreement, Israel granted the Palestinian elected Legislative Council to establish among others a Palestinian Water Administration Authority.

55 Pring / Frick, supra note 35. 56 J. Halaby, “Jordanian Cabinet Resigns, King Designates New Prime Minister”, The Asso­ ciated Press, 19 August 1998. 57 Pring / Frick, supra note 35. 58 H. Lindholm, “Water and the Arab-Israeli Conflict”, in: L. Ohlsson (ed.), Hydropolitics: Conflicts over Water as a Development Constraint, 1995, 88. 59 Annex III, art. 1 on water, Israeli-Palestinian Declaration of Principles on Interim SelfGovernment Arrangements (signed 13 September 1993). 60 Ibid.

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Shortly after the signing of the Oslo I Agreement and as a follow-up thereto, Israel and the PLO signed the Gaza-Jericho Agreement in Cairo on 4 May 1994,61 which dealt with the water issue in the context of environmental protection and prevention of environmental hazards. Its focus was more on the ‘no harm principle’ and the continuation of current water entitlements than on other substantive or procedural rules. On 18 September 1995, the PLO and Israel then signed the so-called Oslo II Agreement.62 Article 40 of the agreement’s annex III, was devoted to “water and sewage”. In the article, Israel acknowledged, for the first time, Palestinian water rights in the West Bank. Yet the agreement did not mention or provide any provision allowing the Palestinian side to develop and/or access and reach the Palestinian area of the JRB. Yet both sides agreed to cooperate in the field of water and for this purpose to establish a JWC and a Joint Supervision and Enforcement Mechanism (JSET). It was stipulated that all JWC decisions were to be “reached by consensus, including the agenda, its procedures, and other matters”. The article estimated the Palestinian future water needs on the West Bank to be between 70–80 mcm/yr. Both sides agreed to “take all necessary measures” for the prevention of water quality deterioration and pollution, and Israel agreed to supply 28.6 mcm/yr of additional water to the Palestinians for immediate needs in the domestic sector, as a priority. These waters were to be drawn from the Eastern Aquifer and other agreed sources in the West Bank. Also, these quantities included an additional 5 mcm/yr allocated to the Gaza Strip.63 The Oslo I and the Oslo II Agreements were both signed as temporary agreements that were intended to last for five years.64 Final water allocations, rights, and other water management issues were to be determined in the so-called ‘final status negotiations’ between the two sides. No such negotiations have since been successfully carried out. Since the Oslo II Agreement, only a total of 24.4 mcm/yr has been made available. Other items related to water development, such as the Palestinian right to develop 70–80 mcm/yr, was not made possible by Israel.65 Moreover, the consensus mechanism of decision-making of the JWC agreed upon in article 40 (14) of the Agreement has created a power-imbalance as it practically gave Israel veto power over all Palestinian water projects and activities. This is more striking considering that there was no mention of third party involvement or arbitration

61  Agreement on the Gaza Strip and the Jericho Area (signed in Cairo, 4 May 1994) ILM 33 (1994), 622. 62 Israeli-Palestine Interim Agreement on the West Bank and the Gaza Strip with Annexes I to VII (signed and entered into force 28 September 1995), ILM 36 (1997), 557. 63 Art. 40 paras 1, 3, 6, 7, 11, 17 Israeli-Palestinian Interim Agreement; Attitli, supra note 8. 64 This is a big difference from the Jordanian case where the agreement is final and permanent. 65 Attitli, supra note 8, at 8–9.



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or mediation mechanisms for dispute management and/or resolution. Consequently, the JWC has never really functioned well. Israel, as a military occupier, maintained all its water activities and plans in the Palestinian authority area by using military overpower. Moreover, many JWC meetings were postponed and meetings were held irregularly and to suit the Israeli side. It was reported that out of 406 applications made by Palestinians to the JWC, only 123 were approved and implemented.66 The number of JWC and JSET members from each side was not determined in article 40 of the Oslo II Agreement. Most JWC meetings were attended by a substantially different number of members from each side leading to imbalanced discussions. It is also evident that both sides are having difficulties working together to manage water and that trust between the two groups within the JWC is still shaky.67 Overall, it could be said that Israel misuses its decision-making power within the JWC. This was, for example, the case with the construction of a wastewater treatment plant in Salfit, which was supposed to be funded by the German Development Bank (Kreditanstalt für Wiederaufbau), where Israel made its approval in the JWC conditional on connecting the largest Israeli settlement in the West Bank to the plant.68 It should be mentioned that although the Oslo II Agreement does not talk about financial support and funding of water projects, it opened the door for foreign donors to assist in water and sanitation infrastructure enhancement and development. Many water and sanitation projects were accordingly implemented in the West Bank and Gaza Strip with the support of the USA, Germany, the European Union, and UNDP.69 According to article 40 of the Oslo II Agreement, water in all forms, including wastewater in the Palestinian Authority area, continues to be under the full control of Israel. The Palestinian side is considered as a user, not an owner, until the final status negotiations are concluded between the two sides. In regard to compliance discussed above, it is important to note that although article 40 of the Oslo II Agreement has some generalities and articles subject to different

66 World Bank, “Westbank and Gaza: Assessment of Restrictions on Palestinian Water Sector Development”, Report No. 47657-GZ, 2009, available at: . 67 A. Berland, The Water Component of the Peace Process between the Israelis and the Pal­ estinians, 2000, (Master’s thesis), available at: . 68 Emergency Water Sanitation and Hygiene Group (EWASH) in the Occupied Palestinian Territory, “Down the Drain: Israeli restrictions on the WASH sector in the Occupied Palestinian Territory and their Impact on Vulnerable Communities”, EWASH Report, 2012; Centre on Housing Rights and Evictions (COHRE), Policies of Denial: Lack of Access to Water in the West Bank, 2000, 22. 69 Phillips et al., supra note 26, at 728–750.

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interpretations by the two sides, the main reason which caused Israel to behave one-sidedly and as a military controller of Palestinian water resources and to neglect the signed agreement is the freeze in political negotiations between Israel and the Palestinian Authority (or PLO)70 since the year 2000. 4. Appraisal After reviewing all relevant existing international treaties as well as regional bilateral and multilateral agreements that may have an influence on the ownership, governance or operation of the JRB waters, it was found that legally, there is one bilateral long-term agreement (Jordan-Israel) and one interim water agreement (Israel-PLO) between the riparians of the JRB. Yet, there is no overall basin agreement signed on the use, allocation, pollution control, and/or development of the JRB between the five riparian countries/sides: Syria, Lebanon, Palestine, Jordan, and Israel. This reflects two elements: (1) the ongoing conflict and the illegal, one-sided measures taken and practiced by some riparians, and (2) the need for a binding international legal mechanism and body supported with power and authority to solve transboundary water courses conflicts such as in the JRB. An overall basin agreement is important not only to maintain equity and equality among riparians and to retain sustainable water management of the JRB but also to achieve comprehensive peace and stability of the basin and consequently, in the region. VII. International Legal Dimension To qualify as a subject under the traditional definition of international law, a state has to be sovereign: it needs a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. Palestinians, as a riparian to the JRB, still do not have full sovereign statehood,71 leading to delays in or ignoring of their water rights in the JRB by Israel as a military occupier. When analyzing the international legal dimension of the JRB conflict, this particular situation requires a distinction in application between different bodies of law.72 On the one hand, these are the rules of international water law and, on the other hand, for the Occupied Palestinian Territory (OPT), distribution and access to water resources is also governed by humanitarian law. Finally, also the human rights dimension should be addressed.

70 The negotiations on behalf of the Palestinian Authority are led by PLO. 71  Cf. supra note 2. 72 Kharouf-Gaudig, supra note 39, at 209.



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1. International Water Law There are a set of principles in international customary law which play a role in protecting the JRB riparians’ rights and interests; they can be found in treaty and soft law including: • The International Law Association’s (ILA) Helsinki Rules on the Uses of the Waters of International Rivers of 1966 and Berlin Rules on Water Resources of 2004 (Helsinki Rules);73 • The UN Convention on the Law of Non-Navigational Uses of International Watercourses of 1997 (UN Watercourse Convention).74 According to Rahaman,75 five principles and obligations are inherent to the joint management of shared water bodies including the: • Principle of reasonable and equitable utilization; • Obligation not to cause significant harm; • Principles of notification, consultation and negotiation; • Principles of cooperation and information exchange; • Peaceful settlement of disputes. The Helsinki Rules, considered as an expert summary of the relevant customary international law and a first attempt to codify international water law,76 are not a treaty and were not intended to be ratified. The Helsinki Rules have now been replaced by the Berlin Rules, also a soft law instrument not binding on states/ sides. The UN Watercourse Convention which was based on a draft prepared by the UN ILC, is designed as a universally applicable treaty that establishes rules

73 Committee on Water Resources, “Helsinki Rules on the Uses of the Waters of Interna­ tional Rivers”, in: International Law Association (ILA), Report of the Fifty-Second Confer­ ence (Helsinki 1966), 1967, 484 (Helsinki Rules); Committee on Water Resources, “Water Resources Law—Fourth Report”, in: ILA, Report of the Seventy-First Conference (Berlin 2004), 2004, 334 (Berlin Rules). It should be noted that these instruments do not con­ stitute binding legal instruments. They may however be reflecting rules of customary international law. 74 Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted and opened for signature on 21 May 1997, not yet entered into force), ILM 36 (1997), 700; the UN Watercourses Convention was based on a draft prepared by the ILC, see ILC, Draft Articles on the Law of Non-Navigational Uses of International Watercourses and Commentaries Thereto, UN GAOR 49th Session, Supp 10, UN Doc. A/49/10 (1994), 195. 75 M. M. Rahaman, Shared Water- Shared Opportunities: Associated Management Principles, 2009, 15–19. 76 Cf. J. Dellapenna, “The Customary International Law of Transboundary Fresh Waters”, Int. J. Global Environmental Issues 1 (2001), 264 (273).

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for all states that are party to it.77 Jordan, Syria, and Lebanon have signed and ratified the UN Watercourse Convention. Israel did not approve or sign it, thereby eventually escaping potential international legal pressure to abide by its terms. Palestine has so far not been able to ratify international treaties and hence has not ratified the Convention. However large parts of the UN Watercourse Convention are regarded as codifying international customary law,78 generally binding for all riparians of the JRB. Both the Helsinki Rules of 1966 and the UN Watercourse Convention are vaguely worded, which might invite states to manipulate them, but they also retain flexibility allowing for their principles to be adapted to a range of different cases. Two of the most prominent principles codified in these documents are the ‘principle of equitable and reasonable utilization’ of water resources and the ‘principle not to cause significant harm’ to other watercourse states,79 which determine the relationship between states sharing a watercourse. They have occasionally been criticized as ultimately failing to integrate adequately the environmental and/or ecological concerns within international water law.80 In contrast, the more recent Berlin Rules take up (more) environmental concerns and develop the existing rules. Moreover, they also address human rights concerns relating to water.81 International customary water law only offers a framework, which means that it is not comprehensive but leaves room for states to find specific arrangements. A difficulty in the JRB and the Palestinian/Israeli water dispute in particular, is that the conflicting sides need to agree on how to use and implement the principles of customary international water law to resolve their water differences. They are often interpreted differently by each riparian side and legally and administratively there is no implementing and enforcement mechanism available in the legal regime of the JRB to resolve disputes between the riparian sides. Even though the principles of international customary and treaty law are mandatory, they have to be enforced by the riparian states/sides. In addition, the weakness of international law is that it can easily be rendered impotent when a state ignores the laws in question.82 77 It should be noted that the UN Watercourse Convention is however not yet in force since it still lacks the required number of ratifications, cf. . 78 S. C. McCaffrey, “International Watercourses”, in: Wolfrum, supra note 35. 79 See arts 5, 7 UN Watercourses Convention, art. IV Helsinki Rules, and arts 12, 16 Berlin Rules. 80 Dellapenna, supra note 76. 81  See in particular art. 17 of the Berlin Rules. 82 J. Isaac, “The Essentials of Sustainable Water Resource Management in Israel and Palestine”, available at: .



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2. Humanitarian Law The Fourth 1949 Geneva Convention sets comprehensive rules intended to protect civilians in times of war, including by ensuring their public health, water supply and sanitation, protecting civilian assets and territory, and minimizing the harm inflicted on civilians by armed conflict. This section on civilians’ living conditions obliges Israel, as the occupying power, to enable safe and ample water supply to civilian populations under its military occupation. It does not allow Israel to develop the occupied civilian populations’, here Palestinians’, water resources to establish and supply its own population. This includes Jewish colonies in the occupied land. Currently, there are 194 countries party to the 1949 Geneva Conventions, including Israel. Israel, as a signatory to the Fourth Geneva Convention must respect the Convention under all circumstances. However, Israel is not complying with the provisions of the Convention; moreover it argues, quite ambiguously, that the Fourth Geneva Convention is on the one hand not applicable to the OPT, while, on the other hand, it claims compliance with the humanitarian provisions of the Convention.83 As stated by the Harvard Program on Humanitarian Policy and Conflict Research,84 there seems to exist a very broad international consensus rejecting the Israeli argument and supporting the applicability of the Fourth Geneva Convention to the OPT. The position of all other state parties to the Geneva Conventions,85 various UN bodies including the General Assembly,86 Security

83 See ; D. Kretzmer, “Israel”, in: D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, 2008, 273 et seq. 84 Harvard Program on Humanitarian Policy and Conflict Research International Human­ itarian Law Research (HPCR), Review of the Applicability of International Humanitarian Law to the Occupied Palestinian Territory, 2004, available at: . 85 UN GA Resolution “Report of the Secretary-General Submitted in Accordance with GA Resolution ES-10/2”, UN Doc. A/ES-10/6, S/1997/494 of 26 June 1997, para. 21. 86 Most recent resolutions include inter alia: UN GA Resolution UN Docs A/RES/54/80 of 22 February 2000, A/RES/55/131 of 13 July 2000, A/RES/56/56 of 14 February 2002, A/RES/56/62 of 14 February 2002, A/RES/56/59 of 14 February 2002, A/RES/56/60 of 14 February 2002, A/RES/56/61 of 14 February 2002, A/RES/56/204 of 21 February 2002, A/RES/ES-10/10 of 7 May 2002, A/RES/ES-10/11 of 10 September 2002, A/RES/57/188 of 6 February 2003, A/RES/57/121 of 24 February 2003, A/RES/57/124 of 24 February 2003, A/RES/57/125 of 24 February 2003, A/RES/57/126 of 24 February 2003, A/RES/57/127 of 24 February 2003, and A/RES/57/269 of 5 March 2003.

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Council,87 Economic and Social Council,88 and the (former) Commission on Human Rights,89 the International Committee of the Red Cross,90 as well as international Non-Governmental Organizations91 is that the Geneva Conventions are applicable de jure to the OPT. Therefore, it is of great importance to establish the involvement of a third independent party or group which will encourage riparians to get together and facilitate a negotiation process which will result in a basin water management agreement, granting all riparians access to water. 3. Human Rights Law The right to access water is a fundamental human right that was explicitly mentioned as a human right at the 1977 UN Water Conference (Mar del Plata Conference) and most recently on 28 July 2010 explicitly recognized as the “human right to water and sanitation” by UN GA Resolution 64/292, also acknowledging that 87 See UN SC Resolution UN Docs S/RES/452 of 20 July 1979, S/RES/465 of 1 March 1980, S/RES/468 of 8 May 1980, S/RES/469 of 20 May 1980, S/RES/471 of 5 June 1980, S/RES/476 of 30 June 1980, S/RES/478 of 20 August 1980, S/RES/484 of 19 December 1980, S/RES/497 of 17 December 1981, S/RES/592 of 8 December 1986, S/RES/605 of 22 December 1987, S/RES/607 of 5 January 1988, S/RES/636 of 6 July 1989, S/RES/641 of 30 August 1989, S/RES/672 of 12 October 1990, S/RES/681 of 20 December 1990, S/RES/694 of 24 May 1991, S/RES/726 of 6 January 1992, S/RES/799 of 18 December 1992, and S/RES/904 of 18 March 1994. 88 See UN Economic and Social Council Resolutions, UN Docs E/RES/1988/25 of 26 May 1988, E/RES/1989/34 of 24 June 1989, E/RES/1991/19 of 30 May 1991, E/RES/1992/57 of 31 July 1992, E/RES/1992/16 of 30 July 1992, E/RES/1993/15 of 27 July 1993, E/RES/1997/67 of 28 July 1997, E/RES/1998/10 of 27 July 1998, E/RES/2001/2 of 23 August 2001, and E/RES/2002/25 of 13 August 2002. 89 See UN Commission on Human Rights Resolutions, UN Docs E/CN.4/RES/1993/2 of 19 February 1993, E/CN.4/RES/1996/3 of 11 April 1996, E/CN.4/RES1997/1 of 26 March 1997, E/CN.4/RES/1997/3 of 26 March 1997, E/CN.4/RES/1998/1 of 27 March 1998, E/CN.4/RES/1998/3 of 27 March 1998, E/CN.4/RES/1999/5 of 23 April 1999, E/CN.4/ RES/1999/7 of 23 April 1999, E/CN.4/RES/2000/8 of 17 April 2000, E/CN.4/RES/2000/7 of 17 April 2000, E/CN.4/S-5/1 of 19 October 2000, E/CN.4/RES/2001/7 of 18 April 2001, E/CN.4/RES/2001/8 of 18 April 2001, E/CN.4/RES/2001/6 of 18 April 2001, E/CN.4/ RES/2002/7 of 12 April 2002, E/CN.4/RES/2002/8 of 15 April 2002, E/CN.4/RES/2002/90 of 26 April 2002, E/CN.4/RES/2003/6 of 15 April 2003, E/CN.4/2003/L.10/Add.8 of 16 April 2003. E/CN.4/Sub.2/RES/1996/6 of 20 August 1996, E/CN.4/Sub.2/RES/1995/9 of 18 August 1995, and E/CN.4/Sub.2/1993/45 of 25 October 1993. 90 The official statement of the International Committee of the Red Cross on 5 Decem­ ber 2001, on the occasion of the Conference of High Contracting Parties to the Fourth Geneva Convention, available at: . 91  Amnesty International, Israel and the Occupied Territories: The Issue of Settlements Must Be Addressed According to International Law, available at: