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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