Until the end of the 19th century, the streams were only used for transportation. Over time, both the emergence of new technologies in agriculture and the development of industry haveresulted in diversification of usage and have increased the need for water. Moreover, in the context of the changing global political setting after the First World War (WWI) and especially the Second World War (WWII), new borders were formed with the emergence of new nation states. A stream that had previously been within the borders of an empire was now within the borders of multiple states.[1]
Geographical and political changes have also led to change in the meaning of the concept of how to share a stream. The lack of consensus on an international agreement about this issue created a big legal gap and caused perennial debates. However three concepts concerning the classification of common waters come to the fore in time. These are:
- National Waters
- International Waters
- Transboundary Waters
Basically “national water” is defined as “streams born in the country, which also end in that country”. This country has the right to establish full sovereignty over the stream.[2] But the main problem remained unresolved regarding the distinction between international water and transboundary water and the rights of the neighboring countries.
The Permanent Court of International Justice defined the concept of “international river” in the wake of the Oder river event in 1929. According to this decision, international waters should have two characteristics:
- It must be sufficient for transportation.
- It must pass through the lands of two or more states or create borders.[3]
But, as it is mentioned before, streams have been used for different purposes other than transportation. And the demand for water increased as water storage technology developed since the 20th century. In the new development projects and investments, the downstream countries of the water basin claimed that the upstream countries were holding water through dams, that they did not leave enough water for themselves, although they had the common sovereign right over the water. The upstream countries, on the other hand, claimed that it’s them who had the sovereign right over water flowing from their own lands.
Transboundary waters are the water that passes through the borders of more than one country from the beginning of the stream source to the end.[4] By definition, there is no difference between the concept of “international” and “transboundary” waters. But the term of “international” implies the intervention of third parties. The term transboundary, on the other hand, implies only conflicting parties.
The famous jurist Sauser Hall said, “Common sovereignty over transboundary waters cannot be maintained for long periods of time. There is no equal sovereignty with the countries where water comes out.”[5]
Over the course of the unending legal and academic discussions, it is not surprising to see a water tension in the Middle East, especially in the Euphrates-Tigris basin. The parties of the tension regarding the basin are Turkey, Syria and Iraq. As an upstream country, Turkey has huge developmental and agricultural projects concerning the rivers.
Iraq and Syria have objected to every single dam that Turkey has built since the 1960s on accounts of damage, pollution and lack of water. Besides, the most important problem between Syria and Turkey in the 80s and 90s was the support of Syria for the terrorist organizations in Turkey. Syria has used terror in water negotiations to support for ASALA and some leftist terrorist organizations, especially the PKK. Despite the turbulent political environment, many agreements were signed on water sharing. The most important one is the 1987 Protocol. According to this Protocol: “Turkey shall guarantee a minimum flow of the Euphrates River of 500m3/s during the filling of the reservoir of the Atatürk Dam and in the final allocation of the water of the Euphrates between the three countries. Turkey agrees to make up the difference in the following month in cases where the monthly flow falls below 500m3/s.”[6]
The Republic of Turkey accepts the 1987 protocol on water sharing and obeys the provision. Turkey also abides by the concept of the transboundary water. As a matter of fact, it refused to establish common sovereignty over the Euphrates and Tigris rivers, which originated from its own lands. It has defended the doctrine of “equitable and reasonable utilization” and the principle of “significant harm”.[7] However, Syria and Iraq have said that the protocol applies only to the Atatürk Dam.
Syria and Iraq have “internationalized” the issue concerning the three countries by bringing these objections and complaints to the agenda of both the Arab League countries and the United Nations.
Syria sent a note to Turkey which criticizes its water policy with the support of influential countries in the region such as Saudi Arabia and Egypt in 1995. Then the seven Arab countries published the Damascus Declaration on the sharing of the Euphrates waters.
In the late 90s and early 2000s, the efforts of Iraq and Syria, find the support of the Western countries. The British Foreign Minister told a newspaper in 1995 that Turkey's Ilısu Dam, which was built in 1997, would destroy the Kurdish civilization.
The international agreements such as the United Nation’s Convention on Non-navigational Uses of International Watercourses in 1997 do not seem to solve these mutilateral water problems. Turkey voted against this convention because it did not carry the objective criteria since it was inadequate and deficient. Although the convention was adopted in 1997, after 20 years of preparation, it entered into force on 17 August 2014. Only 35 out of 190 countries ratified the convention. The convention was not a solution to both conceptual complexity and it is not compatible with the new paradigms of the 21th century.[8]
If the countries cannot compromise on an international agreement concerning the basic issues about the solution of the problem, the problem of water share will continue to be an issue for political bargaining, especially for the regions experiencing water famine like Middle East and Africa.
