Iraq’s Constitutional Mandate to Justly Distribute Water: The Implications of Federalism, Islam, International Law and Human Rights

Abstract

With the impending water crisis in Iraq as a backdrop, this article examines the implications of Iraq’s constitutional mandate to ensure the “just distribution” of water. In 2005, Iraq adopted a new Constitution with a federal structure that was intended to balance power between its Shia, Sunni and Kurdish communities. Water is a unique case study for understanding Iraq’s federal structure because under the Constitution, power over water is shared between Iraq’s federal and regional governments, but not with governorates not incorporated into regions. Because water is not equally distributed across Iraq, jurisdictional disputes over this increasingly scarce resource could exacerbate the fragile ethnic-sectarian tensions that had led Iraq to adopt a federal system of government in the first place. This article suggests that such conflicts could be mitigated by Iraq’s constitutional mandate to ensure the “just distribution” of water. Islamic law and international law, both of which are referenced in Iraq’s constitution, offer guidance on how the “just distribution” obligation should be interpreted. This article concludes that Iraq should develop a domestic policy that embraces the principles of “equitable and reasonable utilization” in international transboundary water law. Drawing on Islamic and human rights law, Iraq should also should interpret its “just distribution” requirement as incorporating a human right to water.

Keywords: Iraq, Tigris, Euphrates, Water, Human Rights, Islam, International Law