Case Study: The Euphrates
and the Tigris Rivers as
Political and Legal Structures
Joseph W. Dellapenna
Villanova University
dellapen@law.villanova.edu
A Few Facts
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The Euphrates
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The Tigris
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An exotic river
Average flow at Hit—32 BCM, range 10-48 BCM
98% of flow from Turkey; 2% from Syria
Traditionally, 90% of use in Iraq
Not an exotic river
Average flow at Mosul—23 BCM
Average flow at Kut—49 BCM, range 20-60 BCM
Traditionally less developed uses
The Marshes and the Shatt al Arab
– Largest wetland in southwestern Asia
– With the Marshes holding the water, an avearge of only 20 BCM reached the
Gulf
– Traditional home of the Ma’adan (Marsh Arabs)
– Destroyed after 1991 uprising in order to preclude resistance to the Baghdad
regime
The Legal Structure of the Rivers
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Upstream development challenges Iraqi uses
– Syrian construction of the Tabqa Dam nearly results in war with Iraq in 1975
– Turkey’s Southeast Anatolia Project curtails water for both Syria and Iraq
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Few and limited agreements between the States
– Most of the basin was within the Ottoman Empire until 1918
– Treaties by the mandatory powers merely promised consultation on the use of
the rivers
– 1930 Iraqi-Turkish Treaty—Turkey promised not to alter the river without Iraq’s
consent
– 1946 Iraqi-Turkish Treaty—Turkey agreed to allow Iraq to build dams in Turkey to
manage the river (never built)
– By 1965, Iraq, Syria, and Turkey established two consultative committees
– In 1983, the three countries established the Trilateral Consultative Committee on
the Tigris and the Euphrates
– In 1990, Turkey pledged to deliver 500 cms of Euphrates water at the Syria
border (equivalent to 9 BCM annually)
– Iraqi-Syrian agreement of 1990 agreed 42% of Euphrates to Syria, 58% to Iraq
– No consultations on the rivers after the Gulf War of 1991
The Nature of Customary
International Law
• Two requirements to prove customary
international law:
– A consistent practices by States
– Out of a sense of legal obligation (opinio juris)
• Consider customary law in local settings
– Consider a trail between villages
– Many real world examples
– In good measure, the common law is customary law
Milestones in International Water
Law
• State practice crystallizes for trans-boundary
water resources (1900-1950)
• The Helsinki Rules approved (ILA, 1966)
• The UN Convention on Non-Navigational Uses
of International Watercourses approved (1997)
• The Gabcikovo-Nagymoros Decision (1997)
Customary Rules of International
Water Law
• Only riparian states have a legal claim
upon a water resource
• Traditional (competing) theories
– Absolute Territorial Sovereignty
– Absolute Riverine Integrity
– Equitable Utilization
The Codified Law of
Transboundary Waters and Beyond
• Helsinki Rules - equitable utilization is the only
rule that matters
• UN Convention - major debate regarding the
relation of equitable utilization to the “no harm
rule”
• Needed: adequate coordination of international
environmental law, international human rights
law, and international water law
• States are developing a new governing
paradigm - joint, basin-wide management
(sometimes called “equitable participation”)
The Berlin Rules as a New
International Law of Water Rights
• Why the Berlin Rules?
– The UN Convention might never come into effect
– The UN Convention says little or nothing about most of the
questions posed here
– Even when the UN Convention does address a point, it provides
only a very general framework
• The New Paradigm
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The Duty to Cooperate
Conjunctive Management
Integrated Management
Equitable Utilization
Sustainable Use
Minimization of Environmental Harm
Accessing the Berlin Rules
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Go to www.ila-hq.org
Click on “Committees”
Click on “List of Committees”
Scroll down the list to “Former Committees Which Have
Completed Their Work in 2000, 2002, and 2004”
• Click on “Water Resources Law” to go to the
Committee’s Homepage
• You will find four relevant documents:
– “The 2004 Final Report” (the Berlin Rules)
– “The 2004 Resolution English” (the resolution approving the final
report)
– “The 2004 Resolution French” (the resolution approving the final
report)
– “The Sources of the 2004 Final Report” (a collection of
representative excerpts from international legal instruments that
support the provisions of the Berlin Rules)
Participatory Water Management
Systems
• Cooperation between states
• Including affected populations
• Including all relevant dimensions of the
water cycle
– even today little clear law regarding
groundwater
– UN Convention says very little about this
• Integrating water resources with other
environmental management processes
Equitable Utilization
• No a priori preferences
• Allocation based on:
– natural features of the drainage basin
– past, present, and foreseeable future needs
– alternative means for satisfying needs
– the sustainability of use
– the avoidance of unnecessary harm
– the possibility of compensation for injuries
Sustainability and Minimization of
Environmental Harm
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Ecological Integrity
Prior Assessment of Impacts
Precautionary Principle
Least Net Environmental Harm
Harmonization and Coordination of
National Policies
• Compensation for Injuries (“Polluter Pays”)
Applying Equitable Utilization to the
Two Rivers
• Differing degrees of reliance on the two rivers
– The two rivers provide 45% of the water available to
Turkey
– The two rivers provide 80% of the water available to
Syria
– The two rivers provide 98% of the water available to
Iraq
• The “Peace Pipeline”
• And what of ecological needs?
An Aside on Shari’a
• Did Allah give Turkey the water?
• What does shari’a teach about water?
– The “path to the watering place”
– Water is a communal resource:
• Under most schools of shari’a, water in nature cannot be
owned or sold
• One can own the instruments by which water is exploited (a
well, dam, ditch, or canal)
• Chafa—the right of satisfy thirst
• Chirb—the right to irrigate
– Customary rights within particular communities are
recognized and enforced
What Next?
• Cooperative management or conflict?
– Disputes over water are common
– Actual military conflicts over water are rare
– Water is too important to fight over
• Can States cooperative over water without
cooperating on other matters?
– At the very least, cooperative water management
regimes create experiences of cooperation
– Water management must be integrated with the
management of other resources