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Approaches to the Legal Aspects of the Conflict on Water
Rights in Palestine/Israel
Jonathan Kuttab and Jad Ishaq
Applied
Research Institute - Jerusalem
PO Box 680
Bethlehem,
West Bank
Table of Contents
Law can play a positive role in the
resolution of water disputes between the Israelis and
Palestinians. While International Law relating to water
resources is not fully developed, it does indicate a proper
procedure for resolving these issues and it does have a number
of specific provisions which relate to the water situation
which ought to be respected as a first step towards the
complex process of resolution contemplated in the developing
law on the subject.
The conflict between Palestinians and
Israelis, and to a lesser degree the conflict between Israel
and the Arab Countries, has centered around the issue of land
and water. As the parties move towards substantive discussions
of a possible resolution of the conflict, it is important to
understand the specific details of the problem involved and to
obtain a proper handle on methods of its resolution. The
academic and scientific community has a primary obligation in
this regard since the alternative leaves the situation in the
hands of others who are guided either by the logic of power or
the passions of political partisanship.
For the purpose of legal analysis, three
major clusters of issues regarding water resources in the
Occupied Palestinian Territories can be delineated:
- The first relates to water resources that originate and
are discharged completely in the Palestinian Occupied
Territories. The most obvious example of this sort is the
Eastern aquifer resulting from rains falling East of the
hydrological line that crosses the West Bank towards the
Ghor Valley.
- The second relates to the riparian waters which feed
into the Jordan river. These resources are shared by the
Occupied Territories as a unit together with Jordan, the
State of Israel and Syria. Despite the absence of clear
precision, there are sufficient guidelines in international
law as it pertains to surface riparian rights that can and
should fully govern the allocation and distribution of the
waters of the Jordan river among Israel, the Palestinians
and other parties as will be shown below.
- The third problem pertains to water resources resulting
from rainfall in other areas which falls West and North West
of the hydrological line and which feed two main aquifers
that are shared with the State of Israel. The vast majority
(about 80%) of the waters in these aquifers originate in the
West Bank catchment area (1),
and the aquifer itself flows and actually straddles the
border between the two areas with the majority of it found
in the West Bank and Occupied Territories.
The International Law pertaining to
underground aquifers is less clear and specific as to the
required allocation of water resources between two areas which
share the same underground aquifer, and the simple analogy
from surface waters of rivers flowing into a lake is
scientifically unsound since ground waters are far more
complex.
Another problem under this classification
relates to the harmful effect of Israeli drilling just off the
borders of the Gaza Strip in raising the water table to
harmful levels.
A further complication to a strictly legal
analysis arises from the existence of exclusive Jewish
settlements in the Occupied Territories. These are individuals
and communities that have been illegally implanted into the
Occupied Territories contrary to the provisions of
international law. While relatively small in numbers, these
exclusive enclaves in fact utilize the water resources of the
Occupied Territories massively for their own use. Judging by
Israeli figures alone, the settlers in the Occupied West Bank
and Gaza use approximately 90 million cubic meters per year
out of exclusively Palestinian water resources as compared to
about 200 million cubic meters allocated for the indigenous
Palestinian population (2).
While maintaining the necessary scientific skepticism about
these figures, it must be acknowledged that the settlers thus
constitute a major and not insignificant consumer of water in
the Occupied Palestinian Territory which must be reckoned
with.
A further complication arises from the
absence of a clear legal entity entitled to represent the
Palestinian people in International Law. The Palestinian
Occupied Territories are not yet a state, and Palestinian
water rights at present are dealt with more under the
principles relating to belligerent occupation than the
principles governing the allocation of water resources among
contiguous riparian states. This distinction, while most
relevant for the present and past practices, is only a formal
problem for any forward - looking analysis that wishes to
consider future utilization and water allocations between
Israelis and Palestinians.
The first task of neutral and objective
academicians in this sphere is to delineate the parameters of
the problem as objectively as possible and to obtain the
factual data on the water situation in all its aspects. This
does not only mean outlining the climatic and topographic
nature of the area but also the water resources available,
their location, movement, quality and origin. Detailed facts
must be obtained as to the location of the aquifers, the
geological nature of the ground in which they are located, the
direction of their movement, the degree of salinity and the
purity of the water. There also must be data which permit a
reasonable assessment of the actual consumption, as well as
potential requirements, needs and priorities of the different
peoples in the area. One of the first requirements of the
Helsinki Rules, described below, is the free sharing of such
information (3).
In the case of the conflict at hand, there is
a major problem that has not been dealt with sufficiently.
Detailed information does exist both in Israel and the
Palestinian Occupied Territory because the Israeli authorities
have investigated the problem thoroughly, have undertaken
exhaustive and continuous research and have accomplished
centralized control over all the water resources which are
heavily regulated. They occasionally dig exploration wells at
great costs to determine the quality and quantity of
subterranean water resources at different locations and have a
myriad of legal and administrative units monitoring and
regulating water use. This thorough regime of regulation and
control was also implemented in the Palestinian Occupied
Territory where the Israelis have placed meters on existing
wells to determine and control with great precision and
specificity the exact amount of use (4).
This regime resulted in a very high level of centralization
and control as well as sufficient data to permit short and
long term planning on a grand scale.
Yet this regulation has also been combined
with an obsessive level of secrecy. Information pertaining to
water is considered in Israel as sensitive as the movement of
troops and as such must pass the rigorous censorship before
figures are released (5).
Even the relatively robust Hebrew press has strict standing
orders to submit any water - related articles to the censor
before publication. Israeli academics acknowledge that certain
information is not available to them either (6).
In point of fact, throughout my research in this area. Almost
no data is available pertaining to Israel and the West Bank
that was not specifically released by Israeli official
sources. A close analysis of the figures reflects some glaring
inconsistencies, and the figures only represent summary
conclusions and do not provide a verifiable break down. There
is no access allowed to primary data and all academicians must
rely on the official highly censored version of the facts (7).
No international or even independent academic
Israeli verification exists. Yet despite this, the scientific
community has shown a pointed absence of scientific curiosity
and skepticism and has tended to accept the official Israeli
figures at face value. In this , I believe the academic
community is remiss.
This is all the more disturbing, since tools
exist, such as satellite surveillance to obtain more reliable
data, or at least broad verification of facts. In the absence
of sharing full information, the entire discussion becomes
either meaningless, or directed by partisan Israeli interests
and perspectives. Having outlined the types of problems that
may arise in the three major areas of water use and conflict
between Palestinians and Israelis, it would be helpful to
discuss the different approaches to dealing with these
problems from a strictly legal point of view.
This approach is facilitated by the ongoing
hostilities and the absence of peaceful negotiations and
agreements. It is also further enhanced by the absence of
international mechanisms for the enforcement of international
law and its obligations and a proper forum in which such
issues can be litigated. To a lesser degree, this approach is
also aided by the lack of precision and clarity as to some of
the provisions of international law as they pertain to shared
water resources and allocation, particularly of subterranean
waters. Even where there is a clear principle relating to
riparian rights, few scholars and even fewer precedents exist
to accept such a principle as binding where subterranean
waters are concerned. Even where there is a clear principle
relating to surface water rights, few scholars, and fewer
precedents exist to accept the application of such a principle
where subterranean waters are concerned.
Under this approach, each party or country
grabs whatever water resources are within its military reach
and exercises its military and political leverage to impose
its interests and to deny others, particularly its enemies, of
what would be their rightful share of the water resources.
This approach includes not only utilizing exclusively
available water resources without care for the consequence to
other individuals or groups or the quality or quantity of
water that is left to them after exhausting one's own needs;
but it also includes forcibly capturing, diverting and
controlling water resources that falls within the territory of
others. It also includes the use of military power to destroy
wells and water works prepared by others and using force or
threat of force to prevent others from digging wells or
utilizing their own resources, or imposing their own
restriction on their use of water.
While many nations and peoples can be accused
of acting according to this approach, Israel as the dominant
military power in the area has been the most flagrant
practitioner of this approach and has used it with respect to
the Palestinian and other Arab territory and population under
its control as well as with Jordan, Syria and Lebanon. In the
60's, Israeli Prime Minister Levi Eshkol publicly announced
that any attempt by the Syrians to utilize their water
resources in a way that would reduce the flow into Israel,
would constitute a causus belle. On other occasions, Israel
used its military power to physically destroy Jordanian and
Lebanese waterworks in the Yarmouk and Jordan rivers. Even
before 1967, Israeli soldiers conducting cross-border raids
into then Jordanian-held territory in the West Bank always
took care to destroy water wells, thereby insuring continued
flow of water Westward towards their own territory. The claim
that this, or even that 1948 border gives Israelis, through
prior use, a valid claim over Palestinian rights in the water
of the aquifer that were utilized before 1967 begs the
question. Palestinians have always asserted their historical
rights to all of Palestine and their rejection of the Zionist
Conquest of their homeland. Acceptance of Resolutions 242 and
338 dose not include a renunciation of their legitimate rights
in Palestine water resources in what is now Israel. Such
rights, together with other thorny issues need to be
negotiated and settled within the framework of political
agreements - not by sheer force and imposition de facto of one
side's will upon the other.
In a primitive and small attempt of the same
kind, the Palestinian Resistance Movement (Fateh) initiated
its own military operations against Israel by attacking and
attempting to blow up one of the Israeli water works on
January 1, 1965. Perhaps this was symbolic of the use of the
first approach to the water question as merely any object for
the exercise of power and influence unrelated to international
law and principles.
Unfortunately, this approach has never lacked
for professional academicians who provide some scholarly
justifications to what is otherwise a lawless approach of
selfish interests. Some of the advocates of the "Prior use"
theory often turn out to be mere post facto apologists for the
users of the brute power approach by attempting to give
legitimacy and justification to clearly illegal practices as
if such a theory could grant retroactive legitimacy to what is
otherwise clearly illegitimate acquisition of water use
through force.
While international law has its lacunae,
particularly where it pertains to shared subterranean
aquifers, there are none the less sufficient explicit
provisions of international law that impact the current
situation and which are worthy of support for their
implementation. While academicians usually are powerless to
impose or enforce provisions of international law, they have
the obligation to place their moral weight and authority in
favor of accepting and implementing already existing
provisions in relevant international law, as well as
developing it in helpful directions.
Those who insist on developing and
extrapolating a new principle of law will do well to first
insist on strict compliance with already existing accepted
principles of law.
As it pertains to the water disputes between
Israelis and Palestinians, there are several broad concepts of
international law that are applicable both to the existing
situation and past practices of the parties; and as guidelines
for future allocations of water resources. The first and most
obvious principles are the provisions of international law
pertaining to Israel's conduct in the Occupied Territories.
These include Articles 52, 53 and 55 of the Hague Regulations
of 1907; the Fourth Geneva Convention of 1949, and
particularly Article 54 of Protocol 1 of that Convention, and
numerous resolutions of the General Assembly and the Security
Council of the United Nations which specifically address
Israel's conduct in the Occupied Territories.
It is the universal opinion of the
international community, which is also supported by the
highest Israeli legal body, the Supreme Court, that the status
of Israel in the Occupied Territories is that of a
"belligerent occupier" (8).
The Laws of belligerent occupation are found in their most
comprehensive form both in the Hague conventions and more
specifically in the Geneva conventions and their protocols.
The State of Israel accepts the application of the Hague
convention as part of customary international law but has
employed a variety of legal arguments to avoid the application
of the more detailed Geneva conventions which Israel has
signed.
No international legal authority outside
Israel accepts any of the Israeli attempts to avoid the
applications of the Geneva conventions and Israel itself
claims that it is in fact applying de facto these conventions.
It avoids the de jure application through the following
devices:
a. The Israeli high court has claimed that
these conventions are not customary, but treaty law which have
not been specifically incorporated into the Israeli legal
system by Knesset ratification. Therefore as a domestic court,
it is not empowered to enforce them even though Israel may
have been signatory and therefore obligated under
international law to obey them.
b. The argument is made that the Geneva
conventions are only applicable to territories that have been
aptured from another recognized sovereign. Here Israelis argue
that only two countries, England and Pakistan have ever
recognized Jordanian sovereignty over the West Bank, and
therefore, given the doubt over Jordanian sovereignty in the
West Bank and Gaza, Israel is not obliged to respect the
applicability of the Geneva Conventions.
No international authority accepts this
argument because even assuming that there is any question
about Jordanian sovereignty in the West Bank, the issue is
irrelevant since the protection of the Geneva Conventions is
extended to every population that falls under the control of a
government other than their own during time of belligerency
(Article 3) and it is irrelevant who the previous sovereign or
controller was. The argument is also disingenuous since Israel
never bothered to respect the Geneva Convention in the Golan
Heights, whose previous Syrian sovereignty was never disputed.
c. Some Israeli politicians have argued that
land captured in a defensive war is exempted from the
application of the Geneva Conventions, which only apply to
territory captured by offensive operations. Apart from the
absence of universal agreement as to whether the '67 war was
defensive or offensive, the issue is again totally irrelevant
since the Geneva Conventions make no such distinction but only
apply the regime of belligerent occupancy to a situation that
follows on the heels of hostilities.
At any rate, as it pertains to water
resources the conceptual and philosophical basis of
belligerent occupation, whether under the Hague or the Geneva
conventions is the same: The occupying power acts as a
usufruct or trustee over the occupied territories until such a
time a peace treaty resolves the issues in dispute and the
territory is returned to its proper sovereign. Both the Hague
and Geneva conventions attempt a delicate balance between the
military needs of the occupying army and the rights of the
occupied civilian population, prohibiting the alteration of
the status quo except within limited boundaries.
The occupying forces are restricted in their
exercise of authority to issues required by their security and
the maintenance of public order. They are prevented from
altering the existing legal and administrative structure in
the occupied territories and their use of the resources is
equally restricted.
One element that determines the degree of
restriction on the use of resources is largely governed by
whether these resources are movable and immovable resources.
Movable resources, particularly those with military
application such as means of transportation can be confiscated
and used by the occupying powers under certain conditions,
provided the use is for the military forces themselves, and
that proper compensation is paid. Use of immovable resources
is even further restricted. The issue of whether subterranean
water sources are movable or unmovable property therefore
becomes significant.
The precedents and international opinion has
held on more than one occasion that subterranean oil resources
are to be included as immovable resources and not movable
ones. Several international cases related to oil resources in
the Philippines and more recently in the Sinai Peninsula
pointed in this direction and held that it is not permitted
for an belligerent occupation to utilize previously untapped
subterranean oil fields, and that to the extent that it is
necessary to utilize one of these resources for the military
use of the occupation forces, it needs to be compensated, and
it cannot depleted (9).
The principle of usufruct is well known
principle by which the occupation trustees can utilize the
replenishable fruits of existing resources (trees, timber,
etc.) without exhausting the principal source or depleting it
to the point where it will become unusable upon the return of
the territory to its former or proper status.
Israeli water policy in the Palestinian
Occupied Territory has been clearly violative of these
principles. Israel altered the existing water laws by passing
military orders 89 and 157 giving it complete and full control
over these resources including the metering of existing wells
and the prevention of granting necessary permits for Arab
water works including the improvement of existing wells or the
digging of new ones. More dangerously, Israel used this
regulatory power to confiscate, divert and utilize the
existing water resources not of the benefit of the existing
population, or for its military use, but to pump the water to
Israel itself and to provide for its civilian settlers. No
compensation was paid or offered for the acquisition of these
water rights.
A second major violation was the introduction
into the Occupied Territories of Israel's own population in
the form of exclusive Jewish settlements. Here international
public legal opinion is unanimous. With no exception, not even
the United States, the world community has condemned the
building of civilian Jewish settlements as illegal and
contrary to international law. The Geneva conventions clearly
prohibit such activities as well as resolutions of the United
Nations Security Council and General Assembly. Therefore, the
use of any of the water resources of the Occupied Territories
by the Israeli settlers is patently illegal and void and it is
very clear that such illegal use cannot give rights to future
water rights under any conceivable settlement.
A third violation is the expropriation of a
portion of the water rights attributable to Palestinian
"absentees" and the transference of those water rights and
allocations to Jewish settlers or to Israel itself.
In all the above cases, Israel has been
acting in its own interests as a full though undeclared
sovereign in the Occupied Territories, rather than as a
trustee and usufruct acting for the public order or the
interest of the local population, or for the needs of its
military forces.
Looking forward to the future and away from
these previous and existing violations, one can look to
international law for some guidance for the proper allocation
of shared water rights between a new Palestinian entity and
the State of Israel. Here the controversial legal issue only
relates to the shared water resources on the western part of
the West Bank. Under existing international principles, the
water which falls on the West Bank and is discharged there is
fully the sovereign property and entitlement of that
territory. International law is not sufficiently clear,
however, on the allocations of water resources which fall or
begin in one territory but eventually make their way through
subterranean channels into a shared aquifer. Movement seems to
be away from a strict sovereignty approach, but even a limited
sovereignty approach would still guarantee Palestinians in a
West Bank State or entity entitlement to substantial portions
of the water resources originating in their territory, and
which can be utilized by them, were it not for the enforced
restrictions. The forcible exploitation of these resources by
the Israeli authorities, does not create for them rights
therein, nor does the enforced low utilization of these
resources by the Palestinians negate their legal rights to
their fair share of such resources.
A third and most constructive approach to
this conflict is built on seeking agreements based, not on
brute force, nor on sovereign rights held in an adverserial
zero-sum context, but in a reasonable attempt to arrive at a
fair and equitable solution. Such an approach is increasingly
gaining acceptance, and is reflected in the practice of states
in a number of disputes. It is becoming codified as a result
of the painstaking efforts of the International Law
Association, under the name of the Helsinki Principles. These
principles have not yet been fully adopted into binding legal
obligations and norms, although they are most useful as tools
for furthering the prospects of negotiated agreements between
contenders for shared resources without the danger of being
down in legalistic disputes over contentions texts and
controversial political stands. This approach, by contrast is
more pragmatic and result - oriented.
Closely related to this approach are the
proposals to resolve the conflict by "enlarging the pie" '
that is by importing or creating new water resources from
outside the Area, rather than facing the difficult task of
making choices, and determinations between differing claims.
The principles outlining this approach are
found in the Salzburg resolutions of 1961, entitled The
Utilization of Non- Maritime International Waters, adopted by
the Institute of International Law, and The Helsinki Rules of
1966 on the Uses of the Waters of International Rivers,
developed by the International Law Association.
Article #3 of the Salzburg Resolution states
that disagreements will be resoled 'on the basis of equity,
taking particular account of the respective needs, as well as
other pertinent circumstances". Article 4 requires that no
state utilize its water sources in a way which "seriously
affect" the possibility of utilizing the same sources by other
states".
Article 4 of Helsinki states that " each
state is entitled within its territory, to reasonable and
equitable share in the beneficial uses of the waters of an
international drainage basin". This right comes with the
proviso that it does not cause "significant" or "substantial"
harm to others, either in terms of the quantity or quality of
water left over for the use of other, usually downstream
users.
One problem with this approach is that it
leaves vast room for interpretation, and opposing claims as to
what are "equitable", "reasonable share", "needs" of each
party, the potential needs? What constitutes "significant or
substantial" harm? What level of development is permitted
given a limited resource? Who will be permitted access to
easily available sweet water, and who must contend with the
expense and uncertainty of importing water from afar or of
desalinating brackish or sea water or altering agricultural
practices to utilize reclaimed sewage?
In the context of the Israeli Palestinian
conflict over water rights, the appeal to equity, and
proportionality must avoid the following pitfalls:
- That this approach be used to negate water rights
clearly established under existing legal standards such as
the rightful share of surface waters and other riparian
rights.
- Giving weight to the "rights" or entitlements of Jewish
settlers in the occupied territories, whose very presence is
illegal.
- Accepting a false symmetry in assessing potential needs,
and population growth between returnees, and refugees
returning to their families and homes after a forced exile,
and between Zionists making "alia" for ideological or other
reasons.
- Taking as a yardstick the present level of water
consumption by Palestinians, when such figures have been
artificially frozen at 1967 levels, by force and coercion,
and even reduced by drilling deeper Israeli wells next to
Arab springs.
- Taking as a yardstick the present level of water
utilization by Israelis, to the extent that that level of
use resulted from mining Palestinian sources, and illegally
overpumping shared aquifers while prohibiting Palestinians
from normal utilization.
- Neglecting to provide Palestinians compensation for the
decades of illegal exploitation of their resources, which is
also a form of "affirmative action" to enable them to
compensate for past deprivations.
- Granting legitimacy to previous violations by accepting
a "prior use" approach.
It must be noted here that if Equity and
Equitable principles are followed, no weight or recognition
can be given to advantage obtained by illegitimate means .
Equity requires clean hands, and water usage arrived at by
coercion and force of arms does not give rise to any
"equitable " claims.
There are sufficient principles for resolving
water issues between Israelis and Palestinians; but they must
be applied in a legal and equitable fashion. Otherwise, they
will degenerate into a scholarly and judicial cloak for naked
aggression and justification for the lawless domination of the
strong over the weak. The inevitable outcome of such neglect
of Palestinian rights would be undermining the possibility of
wider regional cooperation on water, and ultimately the
absence of security and stability.
- J. Moore, Water-Sharing Regimes in Israel
and the Occupied Territories - A Technical Analysis,
Department of National Defense, Canada, Ottawa, 1992.
- R. Padhotzer, Water in Conflict,
Haaretz, 24 April 1989.
- International Law Committee, Annual
Report, 1984, Vol. 2, Part 1, Pages 176-177.
- R. Shehadeh, Occupier's Law: Israel and
the West Bank, Kuwait University, Beirut, 1990.
- Office of the Chief Censor, Government
of Israel, Circular to Al-Fajar English Language Newspaper,
Jerusalem, March 1991.
- Israel/Palestine Center for Research and
Information, Roundtable Forum on Water, Fall 1992.
- E. Kally, Options for Solving the
Palestinian Water Problem in the Context of Regional Peace,
Israel Palestinian Peace Research Project, Working Paper
Series No. 19, The Harry S. Truman Research Institute for
the Advancement of Peace, Jerusalem, 1992.
- E. Playfair (ed.), International Law
and the Administration of the Occupied Territories, Al-Haq
Symposium, Clarendon Press Oxford, 1992.
- J. L. El Hindi, The West Bank Aquifer
and Conventions Regarding Laws of Belligerent Occupation,
Michigan Journal of International Law, Vol. 11, No. 4,
Summer 1990.
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