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Utilization of International Rivers in the Middle East

A Study of Conventional International Law*

Published online by Cambridge University Press:  28 March 2017

Abraham M. Hirsch
Abraham M. Hirsch*
Affiliation:
Columbia University
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Extract

In recent years, increased attention has been focused on international conflicts of interest with respect to international rivers of the Middle Bast. The creation of new political units in the area after the first World War, their attainment of independence, and the creation of new states in the years following the second World War, fragmented the areas irrigated by most of the Middle East’s rivers.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 1 , January 1956 , pp. 81 - 100
Copyright
Copyright © American Society of International Law 1956

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Footnotes

*

The author wishes to express his grateful appreciation to Professors Jacob C. Hurewitz and Oliver J. Lissitzyn of Columbia University for their helpful criticism of this paper.

References

1 The term Middle East as used in this paper refers to the area from Turkey to Afghanistan, from Pakistan to Israel. Egypt and the Sudan—hence the Nile and Gash Eivers—are not included in the scope of this study.

Major Middle Eastern river disputes have involved the Jordan-Yarmuk Basin, the Indus River Basin, and the Helmand River. Lesser tensions, past or present, have involved the Orontes, the Kweik, the Euphrates and the Tigris, as well as a number of lesser streams. It must be remembered that of all the major rivers in the area, only the Litani River in Lebanon and the Seyhan, Ceyhan, Kizilirmak, and some other rivers in Turkey, flow entirely, from source to sea, through the territory of a single state.

2 Political units created after World War I out of the dismembered Ottoman Empire were (besides Turkey) Syria, Lebanon, Iraq, Palestine and Transjordan—all Class “A” League of Nations Mandates. Iraq alone became independent in the inter-war period, in 1932.

3 Syria and Lebanon achieved formal independence in 1943, real independence in 1946. Transjordan, today the Hashemite Kingdom of Jordan, became independent in 1946. Pakistan was created in 1947 when British rule over the Indian sub-continent ended. Israel became a state in 1948, when most of Arab Palestine was absorbed by Jordan.

Of the above states, all except Israel have accepted the international treaty obligations of the Mandatory period (or of the British India period, in the case of Pakistan). “Israel does not inherit the international treaties signed by the United Kingdom as mandatory power. …” Statement by Abba Eban, Oct. 30, 1953, U.N. Security Council, 8th year, Official Records, 633rd meeting, p. 26, par. 125. See Anthony Leriche, “Aspects formels de la devolution d’obligations résultants de traités dans le cas d’un nouvel Etat (Cas de quelques Etats du Moyen-Orient,” 2 Revue de Droit Int. pour le Moyen-Orient 105 (1953); Shabtai Rosenne, “Israël et les traités internationaux de la Palestine,” 77 Journal du Droit Int. 1140 (1950); and idem, Israel’s Armistice Agreements (Tel Aviv, 1951). The Armistice Agreements signed by Israel and the four adjoining Arab states in 1949 (texts in 42 U.N. Treaty Series (hereinafter cited as U.N.T.S.) 251–351) are not political treaties, and the Armistice Demarcation Lines are not political boundaries, even where they coincide with the old Palestinian border.

4 See, for instance, H. A. Smith, “The Waters of the Jordan: a Problem of International Water Control,” 25 Int. Affairs 415 (1949); M. G. Ionides, “The Disputed Waters of the Jordan,” 7 Middle East Journal 153 (1953); see also J. F. Hostie, “Problems of International Law concerning Irrigation of Arid Lands,” 31 Int. Affairs 61 (1955).

5 For a good survey of various international river disputes, see H. A. Smith, The Economic Uses of International Rivers (1931); James Simsarian, The Diversion of International Waters (1939); Pierre Joubert, De l’Aménagement International des Forces Hydrauliques (1938); J. Andrassy, “Les Relations Internationales de Voisinage,” 79 Recueil des Cours 77 (Hague Academy, 1951, II); G. Sauser-Hall, “L’Utilisation Industrielle des Fleuves Internationaux,” 83 ibid. 471 (1953, II). River cases between States of federations are discussed in Willard B. Cowles, “International Law as Applied between Subdivisions of Federations,” 74 ibid. 659 (1949, I); for cases between units of British India, see Indus Commission Report (India, 1942). A digest of principles applied (mostly in Europe) to certain aspects of international river utilization can be found in United Nations Economic Commission for Europe, Committee on Electric Power, Legal Aspects of Hydro-Electric Development of Rivers and Lakes of Common Interest (Geneva, January, 1952, Doc. No. E/ECE/136).

6 For a study of Middle East practice with respect to the definition of the frontier in boundary streams, see Hirsch, “River Boundaries in the Middle East: A Study of their Definition in Conventional International Law,” 4 Revue de Droit Int. pour le Moyen-Orient (1955).

7 See infra, the Syria-Jordan Convention on the Yarmuk, 1953.

8 37 U.N.T.S. 281.

9 See note 54 infra.

10 This agreement is described in detail below, in the section on International Organization.

11 Text in Oliver B. St. John, Beresford Lovett, Euan Smith, 1 Eastern Persia; An Account of the Journeys of the Persian Boundary Commission, 1870-71-72, pp. 410–414; summaries of the Award appear in E. Hertslet, Treaties, &c., concluded between Great Britain and Persia, and between Persia and other Foreign Powers 63 (1891), quoting from 6 Aitchison’s Treaties 343 (2nd ed., 1876).

12 78 British and Foreign State Papers 270.

13 Note III, Afghanistan-U.S.S.E. Frontier Agreement of June 13, 1946, 31 U.N.T.S. 158.

14 9 League of Nations Treaty Series (hereinafter cited as L.N.T.S.) 401.

15 English text in 1 L. Shapiro, Soviet Treaty Series 314 (1950).

16 Id. at 324. H. A. Smith, The Economic Uses of International Rivers 216, errs in stating that the agreement excludes the Aras from its provisions; the Aras is excluded only from one of the articles of the agreement (Art. 11) dealing with matters of frontier policing, and regulating frontier water use by individuals.

17 New York Times, Sept. 16, 1953, p. 10.

18 France, Rapport à la Société des Nations sur la situation de la Syrie et du Liban, Année 1930, p. 177; translation by this writer. No further agreement on the subject seems to have been concluded.

19 Great Britain, Treaty Series No. 7 (1930) Cmd. 3488.

20 22 L.N.T.S. 365. It was ratified on March 7, 1923, and is sometimes cited as of this date. The Jordan was not a boundary river in this agreement.

21 54 L.N.T.S. 197.

22 73 British and Foreign State Papers 97.

23 33 Martens, Nouveau Recueil Général de Traités (2ème série) 561.

24 The text of the Commission’s protocols has apparently not been published, although it was deposited in the Archives of the League of Nations Secretariat (see League of Nations Official Journal, 1935(2), p. 207). The information here given is based on Appendix III(D) to the “Request of the Iraqi Government …,” ibid., p. 213 (Doc. No. C.531(1).M.242(1).1934.VII), ana Persian Legation to Iraqi Foreign Ministry, Note 2573, Sept. 20, 1931, quoted there. C. H. D. Ryder, “The Demarcation of the Turco-Persian Boundary in 1913–14,” 66 Geographical Journal 227 (1925), gives interesting background information on the Commission’s work, but includes little, if anything, of a substantive nature.

25 22 L.N.T.S. 355.

26 These provisions recall Rule 11(7) of the Madrid Eules of 1911; see James Brown Scott, Resolutions of the Institute of International Law 168 (1916).

27 Great Britain, Report to the Council of the League of Nations on … Palestine and Trans-Jordan for … 1931, p. 207 (1932).

28 54 L.N.T.S. 179.

29 28 L.N.T.S. 12.

30 The provisions of this article are similar to those of Arts. 309 and 310 of the Treaty of Peace with Austria (Treaty of St.-Germain), Sept. 10, 1919.

31 54 L.N.T.S. 197. Little, if anything, seems to have been done along these lines. In fact, by the late twenties, according to Professor George Haddad of the Syrian University (in a letter to the author, June 9, 1955), the Turks were making “almost exclusive use of the waters” of the Kweik. According to Arab Palestine Committee, Commentary on Water Development in the Jordan Valley Region, p. 18, note 1 (Beirut, 1954), the Turks, about 1940, stopped the flow of water of the Kweik entirely.

32 37 U.N.T.S. 281.

33 It must be remembered, in this connection, that Syria straddles more than 400 miles of the Euphrates, and controls a section of the Tigris to the thalweg, as pointed out above.

34 78 British and Foreign State Papers 219, 245, 270–271.

35 Loc. cit. note 13 supra.

36 See 11 Aitchison’s Treaties 64, 74 (5th ed., 1929–33). The March 7,1867, agreement with the Sultan of Lahej provided for the construction of an aqueduct from Sheikh Othman to Aden; the Sultan of Lahej was to receive one-half of the monies realized from the sale of the water in Aden. The April 11, 1910, accord with the Sultan of the Abdali gave the British the permanent right of use of a 110-acre plot of land along the Wadi As Sagair, where they could sink wells; the Sultan of the Abdali was to receive a monthly payment in return. There have been reports recently that the Sheikh of Kuwait has reached agreement with Iraq on the construction of a pipeline to convey water from the Shatt-al-Arab to Kuwait; a 43-inch pipe is to carry an initial flow of 25 million gallons per day. See E. A. V. De Candole, “Developments in Kuwait,” 42 Royal Central Asian Journal 21 (1955).

37 54 U.N.T.S. 45. See also note 57 infra.

38 League of Nations Official Journal, 1935(2), p. 201.

39 Ibid. at 237.

40 56 L.N.T.S. 81. In September, 1953, Gen. V. Bennike, Chief of Staff of the U.N. Truce Supervision Organization in Palestine, expressed the view, in a letter to the Security Council (U.N. Doc. S/3122, Annex III, par. 8), that this treaty’s provisions continued to represent the pattern of rights to the Jordan’s waters. This also was indicated as the Syrian viewpoint by Mr. Farid Zeineddine, Nov. 10, 1953, U.N. Security Council, 8th year, Official Records, 636th meeting, pp. 3, 19, pars. 11 and 87. Mr. Abba Eban of Israel rejected this view in his statement on Oct. 30, 1953, ibid., 633rd meeting, pp. 26–27, pars. 125–126; he based the Israeli position on his country’s non-acceptance of the treaties of the Mandatory period (see note 3 supra) and on the very nature of the 1926 agreement and the premise—good neighborly relations—upon which it is based. He added on Nov. 18, 1953, ibid., 639th meeting, pp. 19–20, pars. 83 and 87, that Israel took a more or less similar view of the earlier 1922 (ratified in 1923) agreement (see note 20 supra), but stated that Israel was “willing, ex gratia, to accept all the rights and obligations which would be incumbent upon it in this respect [i.e., with respect to the Jordan’s waters] if the [earlier] treaty were still valid.”

Conflicting claims as to fishing rights on Lake Tiberias formed the background of the intensified Israel-Syria tension which the U.N. Security Council began to consider at its 707th meeting, Dec. 16, 1955.

41 14 L.N.T.S. 67.

42 154 L.N.T.S. 350.

43 The two villages dealt with in this exchange of notes are so small that only the most detailed maps show their location. The approximate position of Dokalim is latitude 35°18.3’N., longitude 71°32.9’E.

44 9 L.N.T.S. 401.

45 112 L.N.T.S. 350.

46 176 L.N.T.S. 301.

47 League of Nations Official Journal, 1935(2), p. 197.

48 190 L.N.T.S. 256.

49 It is not clear whether the drafters of this treaty meant to identify thalweg with medium filum aquae; if they meant this, then their definition of thalweg is incorrect, at least according to the Report of Sept. 10, 1932, of the Commission entrusted by the Council of the League of Nations with the Study of the Frontier between Syria and Iraq (League of Nations Doc. No. C. 578.M.285 (1932.VI)), which defined the thalweg as “the line of the deepest depression of the river-bed.” This definition seems to be the only formal one specifically connected with the Middle East. “The thalweg bears no necessary relationship to the median line of the river. In most rivers, the thalweg and the median cross each other at many points.” Stephen B. Jones, Boundary-Making 117 (1945).

What the drafters of this treaty probably referred to here was not an equation of thalweg with medium filum aquae, but rather the fact that while the 1913 protocol used the term medium filum aquae for that part of the frontier beyond the area where the line was revised by the 1937 treaty, they themselves used the more modern thalweg definition in that area where they revised the 1913–14 boundary.

A report in Etelaat (Tehran), Dec. 8, 1954, indicates that an Iran-Iraq Commission is working on still another revision of the Shatt-al-Arab boundary.

50 However, during the days of the British Mandate over Palestine, the Palestine Electrie Company’s concession area and installations at Jisr el Majamie (Naharayim) straddled the Jordan, i.e., the boundary between Palestine and Transjordan. See Great Britain, Report to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the Tear 1927, p. 75 (1928).

51 In Recueil des Accords Internationaux conclus par la Syrie depuis 1946 (Bureau des documentations syriennes et arabes, Damascus, 1953), where the French translation of the Arabic text of the treaty appears. Translation from the French by this writer.

52 Sections of Arts. 4, 6, and 12 of the present treaty bear strong resemblance to parts of Arts. 20 and 23 of the United States-Mexico Treaty on the Utilization of Waters of the Colorado and Tijuana Eivers and of the Rio Grande, Feb. 3, 1944, U. S. Treaty Series No. 994.

53 The main reservoir (at Makaren) alone is to hold 300 million cubic meters of water (Art. 7), while the flow from the reservoir is to be of 10 cubic meters per second minimum (Art. 2), which equals a yearly flow of at least 315.36 million cubic meters of water per year. The Yarmuk’s normal flow of water is about 460 million cubic meters per year.

54 An explanation is certainly in order on the inclusion of the Bank proposal in a study of conventional law. The International Bank entered the Indus Basin dispute after the two countries of the lower Indus Basin accepted the Bank’s offer of good offices. In February, 1954, the Bank submitted its proposals, and in the following months the two governments, after sonre hesitancy, agreed to have their representatives meet with the officials of the Bank in Washington in the fall of 1954, in order to perfect the Bank’s plan, which was agreed to in principle. The Bank’s plan can thus be viewed as embryonic conventional law. The final form of the plan was expected to be ready by October, 1955; see New York Times, Dec. 10, 1954, and May 13, 1955. But negotiations were not completed by that time. The agreement to negotiate was extended to March 31, 1956, by which time, it is hoped, the final form of the plan will be ready. See International Bank for Reconstruction and Development, Press Release, Oct. 15, 1955.

The Bank’s plan, Proposal by the International Bank Representative for a Plan for the Development and Use of the Indus Basin Waters, Feb. 5, 1954, appears as Appendix I to International Bank for Reconstruction and Development, Press Release No. 380, Dec. 10, 1954.

55 The Beas is the only one of these rivers which is entirely in India; it is a tributary of the Sutlej River.

56 “Although the Indus River has its source outside Pakistan in Tibet and flows for a considerable length before entering Pakistan, the mountainous topography is unfavorable for irrigation development. Therefore, the unhindered use by Pakistan of its waters seems assured.” The Bank apparently does not consider it possible for the Chinese to divert the waters of the upper Indus for the irrigation of less mountainous and more irrigable Tibetan or other Chinese areas, or in connection with the application of political pressure on Pakistan.

The possibility of increased Afghan use of the Kabul River (a tributary of the Indus River, which contributes about 16% of the waters of the Basin) is not mentioned in the Bank’s plan, despite the fact that Afghan projects on the Kabul River are known to be already under construction.

57 The Punjab Partition (Apportionment of Assets and Liabilities) Order, 1947, and the Arbitral Award which followed it, provided inadequately for the question of water flow from India to Pakistan; but a Standstill Agreement, concluded Dec. 18, 1947, reaffirmed the status-quo-ante-Paxtition with respect to the water. After this agreement expired, it was replaced by the May 4, 1948, Inter-Dominion Agreement (54 U.N.T.S. 45), which again continued the status quo, but allowed Indian East Punjab gradually to reduce the amount of water flowing across the boundary to Pakistan. Pakistan denounced this agreement as of Aug. 23, 1950 (85 U.N.T.S. 356) because it felt it had been forced into the agreement by duress.

58 The Jordan River with its tributaries, the Helmand, the Kweik, the Murghab, and the Amu-Darya are “closed” basins. Outside the Middle East, international “closed” basins are rare. Lake Titicaca and its Rio Mauri in South America, the Gash River and Lake Chad in Africa, and the Ili River in Central Asia may well be the only other major international “closed” basins. Traditionally, international law has regarded international rivers as highways to the sea, and has granted them special status on this account. Within the body of international fluvial law, these “closed” basins must be considered as forming a distinct category, which of course does not necessarily mean that their treatment under international law need be different.

59 E.g., the Beas River, the Kushka River.