The utilization of the waters of an international drainage basin raises many problems with respect to both international relations and international law. Water rights have been the subject of state concern ever since the earliest appearance of any form of state organization. In the light of the most recent research it may not even be going too far to say that the organization of the state as it has been known over the last six thousand years had its origins in water rights. The history of water legislation in the Middle East goes back to antiquity and appears in extant ancient Talmudic, Muslim, and Ottoman law as well as in modem water laws (Hirsch, 1957, 2). It is only in the last century since the increased development of systematic irrigation planning, domestic and industrial consumption, and hydro-electric power that water relations between states have become a complex legal problem. This problem still contains many uncertainties and unsolved questions and is, in view of the ever increasing shortage of water throughout the world, one of the most important fields of research in international law at the present time.
In the area of management of international water bodies, the geopolitical considerations and hydropolitical implications for the co-basin countries cannot be divorced from the technical, legal, economic and environmental issues. When water becomes scarce and is considered to be a strategic national resource, hydropolitics needs to be taken into account for the national management of international water bodies
(Biswas, 1993,179).
Law, an instrument which can be used to smooth out conflicts of interest in the sharing of water resources, provides guidelines for ordering future conduct. Law can be determined by a court action which may set a precedent that becomes a "guideline" for future cases but may also come from legislation by an administrative body, for example a government, which passes a statute when it sees a need. According to Barrow (1987), in many countries the state constitution affects water rights and water management because it binds legislation and common law or its equivalent (Barrow, 1987, 68).
International rivers are of two general categories: those that flow between the land territories of two or more states (contiguous or boundary rivers), and those that flow from the territory of one state into the territory of another state (successive rivers). In the case of a successive river one state is in complete physical control of the river as it passes through its territory, while in the case of contiguous rivers, there is dual physical control of the waters. The sources of both successive and contiguous rivers bring them
into physical contact with the land territory of two or more states and one type of river is no more a separate physical unit than the other. Even the geographic distinction between the two kinds of rivers can, in some cases, be more apparent than real, for a river may be both successive and contiguous. For example, it may flow through the territories of two states and, at some point, between their territories as well (Garretson & Haydon, 1967,
17). The Helsinki rules define an international drainage basin as "a geographical area
extending over two or more states determined by the watershed limits of the system of water, including surface and underground waters, flowing into a common terminus. A basin state is a state or territory which includes a portion of an international drainage basin” ( United Nation, 1977, 78). The International Law Commission (ILC), has provided a different definition of an international river. "International watercourse means a watercourse, parts of which are situated in a different state. Watercourse means a system of surface and underground waters constituting, by virtue of their physical relationship, a unitary whole and flowing into a common terminus” (Environment Policy
and Law 21 May 1991, 249). The difference between a river, tributary, watercourse or
stream is largely one of degree measured by the size, length and breadth of the watercourse; but, in the legal sense, there is no particular difference between them.
The state located uppermost in the drainage basin of an international river is normally in a position to exercise its control over the waters first. Generally, there can be only one such "upper basin state" since all other states within the drainage basin are "lower basin states" with respect to that state, although, in turn, some may be "upper basin states" with respect to others. In the case of an international drainage basin composed of a tributary stream in addition to the principal river, there may be more than one upper basin state relative to all other co-basin states (Garretson & Haydon, 1967,1).
State territory, which is a principal sphere of "essentially domestic" matters, undoubtedly includes those waters flowing within it, which are so-called "national waters". As a result of its physical qualities, water which is in the territory of one state today and therefore a part of its state territory, will flow, into the territory of another down stream state tomorrow and become part of that state's territory. According to Berber (1955) the fact that one part of state territory (in contrast to the definition of territory), is movable and, even naturally, a fluid element, gives it a characteristic similarity to the most mobile elements of nature such as the clouds and the winds, despite its association with the most stable of all elements, the land. This contradictory character of flowing water raises complicated questions in international law. By definition it belongs to the domestic jurisdiction of the territorial sovereign; but the territorial sovereign acts to the full extent of its powers, and interferes with the legitimate expectations of the lower riparian. Contemporary international law is based
on the distinction between internal matters, which are only concerned with the individual state, and matters of international importance, over which no single state has exclusive jurisdiction. The boundary between the two is fluid (Berber, 1955, 4). In general, the rights of any country with respect to a river pertain only to that section that lies within its territory and under its sovereignty. More precisely, the rights of the country pertain to the river bed rather than to the water, since it is limited by international law in what it may do with the water; and what it can do with the water may be done only as long as the water is in that part of the river bed in that particular state's territory. A river that crosses the borders of a country remains under that country's jurisdiction only as far as the border of the next country, where the river becomes part of
the territory of a different state (Hirsch, 1956a, 207).
In the Middle East today, five elements of water legislation are discernible and they are based upon:
1) Local customs, based in part on legal principles perhaps dating back to earlier antiquity, which may still dominate the water relationships in many parts of the area.
2) Principles of religious law (or civil-law provisions of religious law codes) often provide a theoretical super- structure which has an independent legal existence overshadowed by ancient customs, on the one hand, and more recent legislation on the other.
3) Ottoman law which has survived in many parts of the Middle East and remains an important factor for water laws.
4) The independent states of the region which have also passed more recent legislation, some of it enacted after these states attained independence (Hirsch,
1956, 147).
5) International law, founded on the concept of the nations that participate in the system.
International law comes from international agreements, international custom, and general principles of law and its principles are based up on equity and natural justice. However, while international law cannot provide all the needed answers, it is, nevertheless, essential if legitimate answers are to be found. There are several aspects of international rivers that are legally relevant and they are: water use; water allocation; water pollution and joint development (Solanes, 1992, 116). Hypothetically, legal principles can be effective devices for settling problems which arise over the competing uses of water. These principles are fairly well developed in legal theory, but the institutional machinery for applying them is still rudimentary, especially in the international arena. International legislation can result from new approaches to settling
water conflicts but it cannot, a priori, direct the search for a solution (Naff & Matson,
1984, 4).
In pursuing their claims for the water resources of an international river, riparian countries have pressed certain theories into service which have received varying degrees of acceptance over the years. Reviewing the principles which govern the use of waters flowing through more than one state, one finds that there are several similarities in the approach taken by the scholars. Berber (1955), Garretson & Haydon (1967) as well as Rogers (1991) and Solanes (1992) define four basic principles:
1. Absolute territorial sovereignty 2. Absolute territorial integrity 3. Limited territorial sovereignty 4. Community use of the waters.
1. Absolute territorial sovereignty. This principle favours only the upper riparian and is the most controversial of the theories. It derives from the complaint by Mexico about the flow of the Rio Grande on the United States side of the border (Harmon Doctrine) and claims the right to the free disposal of water within a state's territory but without the right to demand free flow from other countries. According to this other riparians do not have any rights to constrain a country's use of a river within its own boundaries. This doctrine, which contradicts international law, was rejected by the U.S.A after it was used only a few times.
2. Absolute territorial integrity. This principle appeals only to lower riparians who are more powerful and, where there are several riparians, only to the lowest. The basic principle of the theory states that sovereign rights are limited by the duty not to injure the interests of other members of the international community. The consideration one state must take will also express itself in relation to the advantage gained by one to the injury caused to the other. Furthermore, no state is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring state. This theory is no longer accepted.
Neither of these principles provide a solution regarding the personal, chauvinistic and conflicting interests of the upper and lower riparians. However, the absolute territorial sovereignty doctrine and the theory of absolute territorial integrity constitute two extreme positions, between which there are other two more pragmatic concepts.
3. Limited territorial sovereignty. This is a restriction of the free usage of the water and is the most appropriate principle for a fully developed legal community; but there is
still a question about whether such a community exists. There is a distinction made between boundary rivers and successive rivers according to this principle.
a. Boundary rivers. So far, boundary rivers have been treated as successive rivers but the application of this law goes beyond its application to successive streams probably because of the establishment of boundaries between states and due to an awareness of the geographic facts which may deprive either state of a natural advantage over the other in regard to these waters. It is a general rule of international law that boundary water is divided among the states sharing the streams as a boundary, with each being subject to the equal rights of the other.
b. Successive rivers. There is a corresponding duty not to injure the interests of a neighbouring state and the sovereignty of each of the riparians acts to guarantee the reciprocal restriction of the actions of each towards the other. Treaties between states respecting successive rivers have one common element - the recognition of the shared rights of the signatory states to utilize the waters of an international river (Garretson &
Haydon, 1967, 33). Where many states are involved in resolving a legal dispute, there is
a legal basis which they all believe necessitates such conduct.
4. Community of water. This principle appeals for the common cooperation of all the riparians involved in sharing the waters in an acceptable way. This is a modification of the third principle and is applicable to a less advanced level of international integration (Berber, 1955, 14). This approach considers that the geography of the river often has little (if any) relationship to the political frontiers which divide it and, in order to make optimum use of the waters, it is often necessary to develop a more integrated program for the entire drainage basin. The ideal location for such an installation as a dam for harnessing basin waters for hydroelectric use, for instance, may be within the territory of a riparian state which is not interested in such a use when a less desirable location might be inside the interested state. There are two approaches to this issue. The first prefers to separate the development programmes of each riparian, but permits the use of the territory of a co-riparian state for varying purposes. The second, more advanced approach, considers that a joint effort made by the riparians might best develop the basin for joint benefit without interference to state borders (joint planning, construction, management and maintenance) (Garretson & Haydon, 1967, 39). The best expression of the principle of communal water utilization can be found in the Dubrovnik draft (1956), the Helsinki rules (1966) and the ILC draft (1991), which have become the accepted legal foundation for the utilization of international rivers.
It is an assumption of international law that the allocation of scarce resources requires legal adjudication if conflict is to be avoided. International law recognises the community of property among riparian states as a customary rule of law, that is, each of