Instruments for the Peaceful Settlement of Iraqi-Iranian Water Disputes

Introduction 

 Water conflicts in today’s world are increasing day by day, especially in the Middle East which is one of the most water scarce regions in the world. Iraq and Iran, as two countries in the region, are not exempt from this issue. The conflicts on water between the two states affect the political and legal and economic domains. Therefore, in the case of any conflict between the states, to avoid the possibility of war and conflict, which will lead to long term instability and destruction of the economic infrastructure of both countries, it is better to resort to negotiation and a peaceful method of conflict resolution. International law has given particular importance to the use of peaceful means of resolution and has established a variety of instruments for this purpose, including diplomatic instruments such as negotiation, goodwill, mediation investigations, settlements and joint commissions and judicial instruments, including international mediation and international arbitration. Considering the development of the water dispute between Iraq and Iran and to avoid the risk of long-term war and tension, it is more beneficial for both countries to take advantage of the peaceful means of resolving the dispute. For this purpose, based on the bilateral agreements between the two countries, this article will discuss the peaceful instruments included in those agreements that both countries can rely on to resolve their water disputes. 

Instruments for conflict resolution in International Law 

 Article 2 of the United Nations charter emphasizes the prohibition of the use of force as a principle of international law and encourages members to resort to peaceful solution when dispute arises (1). Article 33 of the charter mentioned above imposes on member states that in the event of any conflict that threatens international peace and security they shall use one of the methods of negotiation, mediation, or resort to one of the international or regional organizations or agencies and other peaceful means (2). Moreover, article 1 section 2 of the 1982 Manila Declaration on the Peaceful Settlement of International disputes emphasizes that states shall resolve their international disputes by peaceful means only and in such a way as not to endanger international peace and security and justice (3).

 If we go back to the 1997 United Nations Convention on the Law of the Non-Navigational uses of International Watercourses, we see that article 33 emphasizes on the resolution of conflict by peaceful means. The article envisages a range of tools for this purpose including negotiation, mediation settlement, joint waterway institutions, recourse to mediation or to the International Court of Justice  (4). Regional water agreements also provide for peaceful means on conflict resolution, such as the 1992 southern African development coordination conference and the 1992 Helsinki convention in Europe preventing pollution in international watercourses and lakes, which included means of peaceful settlement ranging from negotiation to recourse to arbitration mechanism in the international court of justice. In addition, the Helsinki convention and the berlin convention offer diplomatic and judicial tools for resolving water disputes. Thus, international water disputes are not distinguished from other international disputes, and therefore states resort to the same diplomatic and judicial tools that they rely on (5). Thus, we can observe that international documents and agreements emphasize on the peaceful settlement of all sorts of disputes including water disputes, hence in any event of water disputes, Iran and Iraq as two member states in the United Nations according to the UN charter should rely on the general principles of international law and take peaceful means to resolve disputes. 

Means of peaceful Settlement of disputes between Iraq and Iran

 Up until a century ago, Iraq was a part of the ottoman empire and it inherited most of the border between Iran and the ottomans. In modern times and following the expansion of the use of international waterways, the conflict between Iraq and Iran has become broader and it is still ongoing. In order to point to the possible effective means of conflict resolution between Iraq and Iran we have to go back to the bilateral agreements between the two countries. In 1975 Iraq and Iran signed the Treaty concerning the State frontier and neighbourly relations to solve the historical issues of border areas and waterways. The treaty has two complementary agreements on international waterways between the two countries: the agreement between Iraq and Iran on the use of border waterways, signed on the 26th of December 1975 in Baghdad, and the agreement on the rules of navigation in the Shatt al-Arab, signed on the same day in Baghdad. In these agreements, after defining and describing a set of waterways between the two countries, the share of each country is described. Article 6 of the agreement states that in the event of any dispute in the interpretation or application of this agreement, the parties shall resolve such dispute in accordance with the provisions of Article 6 of the 1975 Treaty concerning the State frontier and neighbourly relations. Moreover, article 21 of the agreement between Iraq and Iran on the rules of navigation in the Shatt al-Arab , also states that in the event of any disputes in the application of the agreement, the parties shall resolve such dispute in accordance with the provisions of Article 6 of the 1975 Treaty concerning the State frontier and neighbourly relations. As we can see, in the two treaties that are specific to the waterways between the two countries (that are still valid under international law), both state that for the peaceful settlement of any conflict regarding waterways, both states must go back to the 1975 Treaty concerning the State frontier and neighbourly relations in which article 6 mentions three main instruments for the peaceful settlement of disputes. The three instruments are as follows:

In the event of any disputes regarding the interpretation or application of the treaty or the three protocols and their equivalents, the disputes shall be first settled by direct bilateral negotiations within two months from the date of the request of either party. In the event of no agreement between the two parties within three months, they will resort to requesting the efforts of a friendly third state. In the event of refusal by one of the parties to resort to the goodwill of a third state or breach of procedure, mediation shall be used to resolve the disputes within a period that does not exceed one month from the date of refusal or breach. If the parties do not agree on the method of arbitration, one of the parties may refer the matter to the arbitration tribunal within 15 days of the agreement. The decision of the tribunal will be forced on both parties (7). Thus, we see that both countries, in accordance with the existing border treaty between them, have established three peaceful means to resolve their disputes: direct bilateral negotiations, the friendly efforts of a third state, and international tribunals. 

The possibilities of Iraq resorting to the International Court of Justice (ICJ)

 We often hear in the media and even from Iraqi officials that Iraq is going to take its water disputes with Iran to the International Court of Justice. For example, the Iraqi minister of water resources Mahdi Rashid Hamadani says in an interview “To reopen the waterways to Iraq, on the principle of sharing the losses, we have repeatedly requested assistance from Iran. But unfortunately, the Iranian have not given us any replies.  We have also called for another treaty on the matter of waterways in addition to the political treaty signed in 1975, we have not been given any replies for that either. Hence, we have made the decision to take the issues of water with Iran to the international community and the international courts.” (8). The Minister of Water Resources further said that the Iraqi Foreign Ministry is now finalizing their efforts to take the issue to the international court of justice (9). 

What can be seen from the words of the Iraqi Minister of water resources is that according to Article 62 Section 2-A in the Vienna Convention on the Law of Treaties (1969), if a treaty is to define borders, it cannot be unilaterally revoked by a change of circumstances (10). Regarding to the effect of the 1980 to 1988 war between Iraq and Iran, according to rules of the international laws of armed conflict, the war has no effect on this treaty and its counterparts and the provisions of the 1975 treaty are valid until the signing of a new agreement or the cancellation or amendment of this treaty (11). Therefore, the words of the Minister of water resources have no strong legal basis and the only active treaty that exists to date is the 1975 treaty and its counterparts and until the signing of a new agreement, it would be more beneficial for the state of Iraq to rely on the 1975 treaty to guarantee at least some of its rights. Iraq’s reluctance to rely on that treaty at the moment will cause more harm than good and it is certainly in the interests of the other side. On the other hand, Article 92 of the UN Charter states that the International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter (12). Appeals before this court are for states only and in their own discretion. In other words, the principle is no appeals will be taken if it is not made by the state itself, this is known as the principle of subsidiarity. The Court has emphasised on my occasions that the consent of states is a prerequisite for the settlement of disputes through the ICJ. For example, in the Mavrommatis case in 1924 and the Corfu channel case in 1948, this means that the lack of consent prevents the issue to be taken to the ICJ (13). According to article 36 of the statute of the International Court of Justice, the jurisdiction of the court shall extend to all questions raised by the applicants, as well as specific questions specifically mentioned in the UN Charter and the conventional treaties. The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

The interpretation of a treaty
Any questions of international law 
The existence of any fact which, if established, would constitute a breach of an international obligation
The nature or extent of the reparation to be made for the breach of an international obligation. 

The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court (14).

Therefore, according to what we have discussed above, in order to file a claim against Iran in the ICJ, Iraq has to refer to the bilateral agreements with Iran or any other international and regional agreements to which both states are members in that requires them to bring any disputes related to water resources and waterways to the International Court of Justice (15). If we return to the 1975 Treaty concerning the State frontier and neighbourly relations between Iraq and Iran, which is the legal basis between the two states in these regards, then as we mentioned earlier the three instruments of settlement of disputes are 1. Direct negotiation 2. The generous efforts of a friendly third state 3. Taking the matter of dispute to the arbitration court. There is no mention of resolving the dispute through the ICJ. Therefore, according to Article 6 of the treaty the only judicial tool that both states can resort to is the arbitration court in line with the procedures mentioned in the said treaty and not the ICJ. 

According to Article 33 of the 1997 United Nations Convention on the Law of the Non-Navigational uses of International Watercourses, a proposed tool for peaceful settlements of disputes is to resort to the ICJ. Although Iraq is a member of this convention since 2001, Iran has not yet become a member of this convention and therefore Iraq cannot make Iran comply with this instrument. 

Iraq resorting to the Security Council 

According to Article 34 of the UN Charter, the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. According to Article 35 of the mentioned charter, Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. Article 37 of the same charter states that if the means of peaceful settlement provided in article 33 fail, the dispute shall be referred to the security council which if   the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall recommend such terms of settlement as it may consider appropriate (16). So, it appears that the Security Council has the jurisdiction to issue directions to resolve disputes and that Article 36 of the UN Charter has not obliged the Council to transmit all legal disputes to the ICJ (17). 

If we return to similar examples, we can see that Egypt and Sudan, based on Article 35 of the UN Charter, submitted a request to the Security Council regarding the issue between the two states and the state of Ethiopia over the Nahdha Dam built on the Nile River. The Security Council held a session on this issue on the 8th of June 2021. The Security Council instructed the African Union to pursue negotiations between the said countries to resolve the issue over the Nile waterway in accordance with Article 33 of the UN Charter which describes the role of regional organisations to peacefully resolve conflicts that threaten international peace and security (18). With regards of the legal strength of these orders issued under Chapter VI of the UN Charter, the orders are not legally binding, but they possess a more literary value that can benefit the position of the state whose in favour they are issued and that can lead to the strengthening of their international position and they can on that basis devise future scenarios (19). After the failure of all the means of peaceful settlement in the bilateral agreement between Iraq and Iran, Iraq being a member of the United Nations can take the issue to the Security Council, but it is expected to have the same outcome Egypt and Sudan had, although this declaration is not obligatory on Iran, but it can strengthen Iraq’s position on the international level. 

Conclusion 

 In this research we have discussed the means of peaceful settlement of the issues in international law and then by referring to the 1975 Treaty concerning the State frontier and neighbourly relations between Iraq and Iran and two attached agreements that are specific to international waterways which are  “The agreement between Iraq and Iran on the use of border waterways, signed in 1975” and The agreement on the rules of navigation in the Shatt al-Arab, signed in 1975”, we reached the conclusion that similar to the UN Charter and the 1997 United Nations Convention on the Law of the Non-Navigational uses of International Watercourses, and many other similar treaties and agreements, Iraq and Iran have made constructed instruments of peaceful settlement of disputes. Iraq and Iran in the bilateral agreements have pointed out many instruments of peaceful settlement of disputes which include: direct negotiation, the efforts of a third state, and arbitration court, but we can see that Iraq has not made enough attempts in an organized and planned way to use the instruments and means of peaceful settlement as given in the 1975 bilateral agreement, and has rather just used the direct negotiation option. Moreover, on the option of taking the issue to the ICJ, we reached the conclusion that Iraq cannot legally take the issue to the said court currently, but by using the Articles 34 and 35 of the UN Charter, Iraq can take its water disputes to the Security Council as a dispute that can endanger international peace and security. 

Recommendations 

It is better for Iraq to take more organised and planned attempts to take advantage of the peaceful means of settlement provided in the 1975 treaty concerning the State frontier and neighbourly relations between Iraq and Iran to solve the water disputes. 
As stated in Article 2 of the agreement between Iraq and Iran on the rules of navigation in the Shatt al-Arab, the two states have decided to establish a joint coordination office between the two sides of Shatt al-Arab. We recommend the reestablishment of this office and a joint commission for all the joint waterways between the two states to cooperatively resolve disputes and manage the routes. 
As Iran is not willing to become a member in the 1997 United Nations Convention on the Law of the Non-Navigational uses of International Watercourses, it is better for Iraq to arrange a new agreement with Iran for the usage of waterways. 
As a last step, Iraq can, according to Chapter VI of the UN Charter, Articles 33-38, take its water disputes with Iran and Turkey to the Security Council as a dispute that endangers international peace and security.  

References

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