There are principles on all transboundary waterways, be they surface or of the aquifer type and they are taken into account in the United Nations Watercourses Convention Article 5, as the Convention states that utilization of an international watercourse equitably and reasonably accounts for all relevant factors and circumstances, including :
- Geographic, hydrographic, hydrological, climatic, ecological and other elements of a natural character
- The social and economic needs of the watercourse in the concerned States
- The population dependent on the waterway in the concerned State;
- The effects of the use or uses of the watercourse in one State on other States;
- Existing and potential uses of the watercourse;
- Conservation, protection, development and economy of the water resources of the watercourse and the cost of measures taken to that effect; and
- The availability of alternatives, of comparable value, to a particular planned or existing use. The availability of other options, of equal value, to a specific intended or existing service.
The following essay by Raquella Thaman is a summary of her recently published monograph (under the same title), which appears in Brill Research Perspectives in International Water Law. In effect, the author reviews possible Implications for the Future Directions of International Water Law and concludes that the need for concerted global intervention to maintain the livability of Earth and increase resilience in the face of the rapidly changing availability of resources is vital.
The picture above is for illustration purpose and is that of the Nile bassin (the other watercourse controversy) with indication of the Grand Ethiopian Renaissance Dam (GERD) location.
The Ilisu Dam and its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law
27 January 2021
The fate of the Mesopotamian Marshes of Iraq provides us with a case study on the functional deficits of the existing body of international water law in managing conflict over transboundary watercourses. This monograph argues that international collaboration over transboundary watercourses is imperative for maintaining peace and stability and should force us into thinking of new ways to address these newly emerging and growing challenges in the field.
Water is a transient and finite resource. Moving through the hydrologic cycle, each molecule may find its way from a transboundary watercourse on one continent to a municipal water supply on another, and then back again. It is often said that every drop we drink has already been consumed by one life form or another.
One of the more perilous side effects of climate change is its threat to the water supply of hundreds of millions of people. In many regions the seasonal absence of rain has historically been compensated for by meltwater from glaciers and winter snowpack across international borders in distant mountain ranges. When these glaciers disappear, so will the water supply during the dry season.
As these pressures increase, the need for effective legal regimes to address the sharing of transboundary watercourses likewise increases. In some cases, the existing law governing the utilization of this ephemeral resource has proven inadequate to prevent conflict and ensure access to water and its benefits for people and ecosystems no matter where they lie along the length of the watercourse.
The history and ecology of the Tigris-Euphrates Basin, and the issues surrounding Turkey’s recent impoundment of water behind the Ilisu Dam on the Tigris, provide an example highlighting such challenges. While the need for collaborative approaches to sharing transboundary watercourses is evident, barriers to such collaboration are complex and sometimes deeply entrenched. Additionally, the responsibility of the international community for helping at risk communities maintain access to adequate water supplies cannot be overlooked.
The first few chapters of the monograph set forth the context of the problem. Chapter one briefly introduces the hydrologic cycle and current state of Earth’s ecological systems underlying the need for new developments in international water law. The second chapter is an overview of the Tigris-Euphrates river basin including its hydro-geography, climate and early history of water use. The third chapter describes the significance of the Mesopotamian Marshes themselves as a harbinger for the well-being of the people of Iraq. The fourth chapter examines the water projects that affect the Tigris-Euphrates Basin including controversy surrounding Turkey’s most recent filling of the Ilisu dam and the flooding of Hasankeyf.
Chapter five of the monograph outlines the law governing the Tigris-Euphrates Basin. The stance of the Tigris-Euphrates Basin states and their seeming embrace of outdated and conflicting approaches to resource allocation are examined. Existing agreements between the states, both colonial era and post-WWII, and the application of the UN Watercourses Convention are then examined. Finally, other approaches to managing conflict over ecological conditions are examined including a brief analysis of the Rhine Salt Case and the human right to water recognized by the UN General Assembly in 2010.
Chapter six discusses the topic of collaborative water management using the illustrative example of the Senegal River Basin. Three examples of conflict over transboundary watercourses, one historical and two current, are then provided in order to illuminate some of the barriers to collaboration. The first is a nineteenth century dispute between the United States and Mexico over the water of the Rio Grande, which resulted in the production of the Harmon Doctrine. The second provides an example of upstream hydro-hegemony in an overview of the problems arising from China’s development of the upper Mekong River and its impact on those living in the lower Mekong Basin. The third example outlines the problem of downstream hydro-hegemony in the dispute between Ethiopia and Egypt, its downstream neighbor on the Nile, over the building of Ethiopia’s Grand Ethiopian Renaissance Dam.
In conclusion, the need for concerted global intervention to maintain the livability of Earth and increase resilience in the face of the rapidly changing availability of resources will be explored and the clear need for a unified collaborative approach to such intervention reiterated.
The monograph is dedicated to Ms. Fadia Daibes Murad (1966-2009); in recognition of the courage, rigor, and dynamic intellect with which she advocated both for fairness in access to water resources and for gender equity in Palestine and the Middle East.
Ms. Thaman is an attorney and teacher in California. She can be reached at r_thaman @ u.pacific.edu.