Iran's Legal Approach Towards Neighboring Countries Regarding Adherence to Common Waters Requirements

Document Type : Research Paper

Authors

1 Tehran university/Tehran/Iran.

2 Tehran university/Tehran/Iran

3 professor of international law, Faculty of Law and Political Science, University of Tehran

10.22099/jls.2024.45170.4846

Abstract

Exploiting shared or transboundary water resources is not inherently challenging among countries. The primary challenge arises when countries encounter difficulties in exploiting these resources due to scarcity. This problem often occurs in the exploitation of common water resources by countries adjacent to the watershed. The Middle East is a region known for significant tensions regarding shared water resources. To address this, international legal rules and the approaches of international judicial authorities in the region have been analyzed to deduce relevant legal principles and rules.
Key agreements examined include the 1975 Agreement on the Use of Border Rivers Water, the 1975 Iran-Iraq Agreement regarding shipping regulations in Shat al-Arab (Arvandroud), the 1926 Convention on the Use of Border Waters between Iran and the Soviet Union, the 2014 Ashgabat Convention, the 1351 Iran-Afghanistan Agreement regarding Hirmand, the 1992 Convention on Biological Diversity, the Ramsar Convention, and the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. These agreements have helped establish fundamental principles and rules for distributing common water resources among watershed countries.
A crucial principle is the consideration of fairness and justice in water resource distribution. This comprehensive principle encompasses a set of international legal rules. For example, factors such as population, potential, actual, and future needs of each country should be taken into account. Additionally, the principles of non-discrimination and equality in the use of common water resources must be observed. Countries in equal conditions should benefit equally from shared water resources. Cooperation regarding common water resources takes priority over conflict resolution. Participation among watershed countries can be highly beneficial, and transparency can resolve misunderstandings. Access to information can foster a common understanding among countries in a shared watershed. Prioritizing vital needs can be a determining criterion for countries in the allocation of common water resources, especially in the absence of treaties or customs. These factors lead to the recognition of limited sovereignty and the principle of common use as two criteria for exploiting common water resources today. Regional unity among Middle Eastern countries is also a decisive factor.
The Middle East has historically been a center of numerous challenges between neighbors over economic resources, leading to political tensions and conflicts. In a region with significant diversity, unity can be achieved only through convergence. Europe, despite its conflicts and historical events like World War I and II, ultimately found solutions in unity and convergence. In the Middle East, convergence among governments means aligning influential regional powers. Prioritizing "power within the region" over "power over the region" can prevent many tensions and conflicts. These countries share strategic positions, natural resources, commonalities, historical-cultural links, population structures, and international unions, which can be summarized as political, security, economic, and cultural factors. The realization of "convergence" instead of "divergence" among influential regional powers can foster greater unity in the Middle East.
Despite Iran's continuous efforts to observe the principles of good neighborliness and cooperation in exploiting common water resources, it has not always been successful with all its neighbors. While observed with Turkmenistan, violations have occurred in relations with Turkey. Iran has established permanent mixed technical commissions with neighbors like Iraq, which is crucial for preventing disputes and reducing judicial and arbitration cases. Shifting disputes from the local to the international level and involving a government as a mediator can lead to international recognition of the dispute, as seen in the relationship between Iran and Afghanistan.
In many cases, Iran has concluded treaties with its neighbors primarily to manage existing political currents. However, treaty-making should not solely aim to end political trends but should consider all legal aspects, including dispute resolution methods. Iran should avoid silence and passivity towards its neighbors in theory and practice. Agreements should be concluded with flexibility for adaptation to various conditions and situations. Iran's past practice of silence and passivity towards its neighbors can encourage unilateralism by those neighbors.
When concluding agreements with neighbors, Iran must consider all legal aspects and employ expert advice. Legal documents should be drafted with flexibility for interpretation and application in different conditions. Iran's stance towards its neighbors in case of treaty violations is also crucial. A passive stance can lead to escalation by the violating government and even violations by other neighbors. The silence of the victim government can signal to others that their unilateralism will go unchallenged, encouraging them to seek maximum benefits and violate existing regulations.
A comprehensive contract encompassing all agreements can prevent many disputes. Such a contract provides a framework that aligns with the general realities of the region, including political, economic, and geographical factors. This creates procedural unity among countries, fostering belief in the binding nature of laws and regulations governing common waters. As a result, customary practices may emerge in the allocation of common water resources, contributing to the development of rules and regulations. This can minimize violations of these rules, requiring good governance within each country. Good governance is achieved through transparency, accountability, participation, and legality, which necessitates increased cooperation among governments, the public, non-governmental organizations, and the private sector. Clarifying and evaluating the legitimacy of operations like dam building and canal creation on common waters by each country can facilitate cooperation and mutual respect for rights and interests.

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References

 
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