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INTERNATIONAL YEAR OF FRESHWATER
2003
UNITED NATIONS 1997 WATERCOURSES CONVENTION AND THE
EUPHRATES-TIGRIS RIVERS.
The United Nations
Convention on the Non-Navigational Uses of International
Watercourses adopted by the United Nations General Assembly in
March by 104 votes in favour, 3 against and 26 abstentions
brings new dimensions to the dispute over the sharing of the
waters of the Euphrates and Tigris Rivers between Turkey, Syria
and Iraq. The Convention also brings the International Law
Commission's task to an end.
The emphasis of the UN Watercourses Convention is on Agreement
between watercourse states to avoid conflict with its key axiom
being Article 5. Article 5 provides that watercourse states
shall in their respective territories utilise an international
watercourse in an Equitable and Reasonable Manner. Article 6
provides that in pursuing these ends all Relevant Factors and
Circumstances are to be taken into account and contains a list
of Factors and Circumstances that come within that category.
Article 7, furthermore, provides that:
1. Watercourse States shall, in utilising an international
watercourse in their territories, take all appropriate measures
to prevent the causing of Significant Harm to other watercourse
states.
2. Where Significant Harm nevertheless is caused to another
watercourse state, the state whose use causes such harm shall,
in the absence of agreement to such use, take all appropriate
measures having due regard for the provisions of Articles 5 and
6, in consultation with the affected state, to eliminate and
mitigate such harm, and where appropriate discuss the question
of Compensation.
Article 7 is an attempt to offer limits on the balancing of
interests by imposing a threshold on tolerable behaviour. The
threshold provided is the principle of No Significant Harm. The
convention provides for water quality by reverting the
watercourse states back to the balancing of interests under the
Principle of Equitable Use. Article 8 calls watercourse states
to the obligation to co-operate on the basis of sovereign
equality, territorial integrity, mutual benefit and good faith
through joint mechanisms or commissions. Article 9 calls for the
exchange of hydrological data, Article 11 calls the states to
inform each other of planned measures. Article 29 calls the
watercourse states that in the event of armed conflict,
international watercourses and related installations shall not
be used in violation of those principles and rules. Article 33
calls the states to settle their disputes by peaceful means, by
direct negotiations, third party mediation or through the
International Court of Justice.
The transition is clear; the Convention entails a transition
from the prudence of a single watercourse state to the shared
prudence of watercourse states. To many analysts, this is one
essence in which the convention imposes constraints on
Unilateral Development raising the old question of water and
sovereignty (Unlimited Territorial Integrity and Unlimited or
Absolute Sovereignty theories). The Convention's emphasis is on
the point that if watercourse states can agree, they are free to
regulate their relations as they wish. The Convention specifies
a number of general Due Diligence Obligations, obligations that
states by virtue of customary international law should respect.
These are obligations to co-operate, to inform, to consult and
where necessary to negotiate, to protect and to preserve the
ecosystems.
The Convention provides very little intuition into how they may
be implemented. The Convention is in clear contrast to the
Sovereignty oriented Helsinki Convention produced by the
International Law Association (ILA) in 1966 which was seen as a
regional framework adopted by the United Nations Economic
Commission for Europe. The Convention does not offer a
relatively weaker watercourse state significant protection,
ultimately leaving watercourse states with the situation in
which they are to balance their interests in good faith, without
any significant guidance, by way of substantive obligations, on
how such balancing is to take place. The consultation procedure
offers the following main aspects:
1. That it is primarily up to the state planning the measure to
determine which other watercourse state may experience a
significant harm.
2. That although the procedure requires that available data and
information of a technical nature shall be submitted, it does
not include a duty to generate certain types of information.
3. That the list of the types of measures that would require
consultation could have included the building of dams and
divergence of water beyond a certain scale.
4. That no legal consequences are attached to the failure of a
state to respond to a request for notification, a disincentive
for states to engage in consultations.
5. That a state can request the establishment of an independent
fact-finding commission where there is a dispute. If a party to
the dispute fails to appoint a member of the commission within
three months, the Secretary General to appoint a single member
commission. Such a commission could provide weaker states with
protection. In the same token, as access to territory is given
to the commission, the procedure may expose weaker states to
uncertain outcomes, and this way contribute to the reluctance of
weaker states to have recourse to the fact-finding commission.
The Convention is about avoiding disputes between watercourse
states, but is it? Once again, as a result of the Convention,
the Euphrates and Tigris Rivers are receiving increasing media
attention. It was hoped that a treaty in the form of the UN
Watercourses Convention would finally bring disputing riparians
all over the world to co-operate. In the case of the
Euphrates-Tigris Rivers, Turkey has not ratified the treaty and
both Syria and Iraq have protested. Turkey's massive
South-Eastern Anatolia Project (GAP) which withdraws huge
amounts of water from the Euphrates and Tigris for irrigation
and hydropower is the 'exclusive' reason behind Turkey's
decision. Turkey's refusal moved the water dispute into new
heights adding more tensions to an already tense region, with
Arab suspicions at a high.
The dispute over the waters of the Euphrates and Tigris rivers
is now more volatile than ever - with water merely being one
issue among the several issues between the riparians. At
present, current demand of their waters indicates that the
rivers have substantial water supply, but the question is the
predicted future demand and competition for water when supply
starts diminishing as upstream Turkey increases the utilisation
of water for irrigation and hydropower requiring an estimated
10,104 Million Cubic Meters (MCM) of water.
Although it is very unlikely that Turkey will fail in meeting
its 1987 commitments of 500 Cubic Meters per Second (CMS) of
Euphrates water at the Syrian border (700CMS during dry
periods), the question is: How will the Euphrates River by 2005
(after Turkey's 14,000MCM withdrawls) deliver Syria's needs
estimated at 13,000MCM and Iraq's estimated 26,000MCM when the
total estimated natural yield is 32,000MCM! Where will the
21,000MCM deficit come from? This is unrealistic and downstream
Syria and Iraq should not expect Turkey to sign cheques that
will bounce!
The Convention has failed in bringing the three riparians
together, and their own failure over the years in reaching a
comprehensive trilateral water agreement on the long-term
division and use of these waters continues the atmosphere of
mistrust providing ideal grounds for conflict with irrigation
dependent Iraq suffering most. Turkey accuses downstream of
inflexibility, but for downstream, Turkey's refusal to ratify
the Convention will cause further frustrations over potential
scarcity and quality of water, and Arab over-dependence for
water upon Turkey could develop into armed conflict with water
becoming an objective of military action. The people of the
middle East have heard more than one leader voice the
possibility of going to war over water.
In parallel to this pessimism, there is the inkling that
downstream will continue to make the economic and political
adjustments necessary to avoid conflict because Turkey has the
control over the waters, has a larger and stronger army and is
in NATO and that neither the Syrians nor the Iraqis would dare
to attack Turkey and its water infrastructure. Turkey must not
take this present advantage position for granted. This is also
not the way forward. Next month's joint naval exercises between
Turkey and Israel that will include the United States are to be
held just 20 miles off the Syrian coast - said to be only search
and rescue operations raises the question of, why? Alarmed and
anxious by this burgeoning military partnership between Turkey
and Israel, Syria and Iraq have turned to each other, and their
water dispute with Turkey in the equation. However, what now
comes into this new equation is Iraq's strategic pipeline to the
Mediterranean through Syria, which at full capacity will mean an
end to Iraq's
dependency on its pipeline through Turkey. Political
calculations in the Middle East are changing; NATO is changing,
and the Kurdish question does not disappear by eliminating
hard-line Kurdish separatist demands.
So why so much water is needed? To produce food, to feed the
increasing populations is the obvious answer. Why then the
conflict with Turkey? Why not buy the food from Turkey, the
region's future food basket? This is Virtual Water, isn't it?
Why not develop on this idea?
Amid this confusion, some clear ideas have come forward; most
important of them is Virtual Water. To put the idea in simple
words, Syria and Iraq need the waters from Turkey to produce
their much-needed food; they can save spending on massive
irrigation schemes with exorbitant price tags and untold
environmental effects and buy this food from Turkey, who has a
better agriculture by any regional standard. The water that is
used in producing the food is Virtual Water. Virtual Water is
indeed an ideal economic and an environmentally friendly
solution where both Syria and Iraq can save on massive water
projects, more often causing nothing but more salinity problems,
and instead divert such huge investments toward
industrialisation. The approach is simple and has been gaining
momentum in some circles. Syria and Iraq can purchase the food
or barter for it, anyway, this is already taking place, what is
needed is to expand it. Syria and Iraq and indeed a number of
other Arab states should not throw cold water ov
er this idea, that is if Turkey economically and successfully
produces and delivers the food assuring downstream of their food
security. The question is: Does Turkey know the water
calculations, namely, how much water? In general, fruits and
vegetables require less water per ton of harvested yield (as
they are mostly water) than more nutritious rice, wheat, or corn
do. Turkey is showing from Turkey are encouraging, so it could
be done.
Iraq was once the granary of the ancient world; this is no more,
why? Salinity, that is why. Syria's and Iraq's problem today is
to find how the ancients were able to keep land irrigated and
under production for century after century before it became too
saline, or toxic. When modern massive irrigation methods have
been applied to some of Iraq's less well-drained areas, the
capillary action of the water on the saline subsoil has caused
the surface to salt so badly it has had to be abandoned within
five years. But the question is this: Even if Iraq takes on the
Virtual Water approach as a solution to its food demand and
diverts investment, what will happen when the industries do not
develop or they fail to export and the last barrel of oil is
pumped and the earth drained? It is for this precise reason that
Iraq wants to become food self-sufficient. It is here when
Virtual Water can become Virtual Control.
The parallel argument to all this is that if Iraq supplemented
water from the Tigris River to the Euphrates River through the
Tharthar Project, Syria will be able to have more water and
therefore reduce the demand on Turkey. The problem is that
Iraq's agricultural heartland is dependent on the Euphrates
River and that such substitutions through the Thartar Project
will cause salinity. For Iraq, the waters of the Euphrates from
Syria are a must. Realistic Arabs and Turks know well that there
will be no rapid settlements; the road ahead has many booby
traps and challenges abound.
The only way to avoid conflict between millions of people is by
peaceful negotiations and through international law and
long-term economic arrangements in the hope that each riparian
state will listen to the concerns of the other and to what can
realistically be achieved for the good of all in an atmosphere
of mutual trust. To do this, a framework must first be offered
to them, the Convention is one such possibility where the
Collective Rights of all three riparians could be discussed.
International actors including NGOs must participate in the
Euphrates-Tigris dispute. Turkey should be invited to reconsider
its position. The policy makers in the three riparian states
must recognise that the waters of the Euphrates and Tigris
cannot be treated solely as their own internal affairs. The
ongoing dispute on whether the Euphrates and Tigris present two
independent river basins or one must also be settled as the
argument cannot go on forever. Here, Turkey and Syria view the
rivers as a single transboundary wa
tercourse and not as two separate international rivers as Iraq
views them. Also, and while not yet part of the dispute, one
cannot fail not mentioning the water from the Euphrates, thought
to be 160MCM/Yr, that Iraq gives to North Jordan in order to aid
Jordan overcome its increasingly grave water deficit. Will
Jordan be dragged into this dispute?
In my view, international law theories of Absolute Territorial
Sovereignty and Integrity are direct routes to conflict. It is
time for both Turkey and Syria to prudently and as good
neighbours come to listen to Iraq, for Iraq remains to be the
major claimant for it has historical and acquired rights that
cannot be ignored nor denied. The facts are that until 1974,
about 90 percent of the Euphrates water streamed towards Iraqi
territory, about 7 percent were used by Syria and the remainder
by Turkey. Also, for nearly forty years, Turkey was not
interested in developing South-East Anatolia, an untended region
populated mostly by Kurds, and real work only started in 1986
(except for Keban Dam). In the same token, Iraq must face the
realities of hydropolitics and must understand that Turkey will
develop Anatolia. The mutual mistrust and vociferous criticism
must end. Turkey's dams are not there to withhold water from the
Arabs; they are also there to regulate the flow, to guarantee
stable riverflow. These
are advantages, if used properly; they can produce miracles for
all to benefit from, for the rivers and the land alone have no
future, it is the people of these mighty rivers who need the
future.
In order to implement international law, which basically calls
for co-operation between the riparians, there must be a basic
reliable hydrological data on the amount of water naturally
flowing in the rivers. In the case of the Euphrates, and as far
as Syria and Iraq are concerned, any figure after 1974 when
Turkey began to fill the reservoir behind Keban Dam, and Syria
began to fill the reservoir behind Tabqa Dam, is a guess work
for it has no independent sanction.
Engineers and statisticians cannot solve water problems.
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