The idea of environmental legal advocacy and specific environmental
legislation is a relatively recent phenomenon in Palestine.
Although individual citizens and local authorities have been
concerned with sanitation, particularly with respect to solid
waste, historically, there has not been a concerted effort to
address all types of pollution in an organized and comprehensive
manner.
The absence of an effective infrastructure to deal with sewage,
water and wastewater treatment and solid waste has exacerbated the
environmental situation. Air pollution, open sewers drainage,
uncontrolled discharge of wastewater, litter in the streets and the
open-air burning of garbage are all indicative of the state of the
environment in Palestine.
Naturally, when discussing the development of legal advocacy and
legislation in Palestine, the past 30 years of Israeli occupation
must be taken into consideration. This period accounts for the
absence of any environmental legislation applicable to the
residents living under occupation. Military orders issued by the
Israeli government only indirectly dealt with environmental issues,
usually related to the imposition of taxes on garbage collection
and the prevention of utilization of water resources.
Since 1967, the environmental situation has steadily deteriorated
with the growth of the Palestinian population, the lack of any
indigenous central authority to plan or develop laws considering
the interests of the inhabitants, and the inability of
municipalities to meet the increased service demands. During this
period, the main legal framework which could be said to govern
environmental issues in the West Bank was the Jordanian Law of
Public Health #43 (1966). This law dealt with issues such as
garbage dumping, sewage, the protection of water resources and
ensuring that drinking water is fit for human consumption.
Various West Bank municipalities have developed regulations based
upon Jordanian law dealing with such matters as nuisance, disposal,
collection of wastes and enforcement. The latter was done through
the use of municipal and Ministry of Health inspectors, whose work
overlapped. Upon discovering a violation, citations were issued to
correct the situation and in the absence of correction, the matter
was brought before municipal or sulah courts. This process of
enforcement with regard to mostly solid waste has been utilized
with varying degrees of success by municipalities, constrained,
however, by a lack of resources and manpower.
The situation in Gaza is even less developed, on the legislative
level, than the West Bank. Legislation in Gaza has not advanced
since the time of the British Mandate, leaving municipalities to
develop regulations based upon laws issued during the Mandate
period which ended in 1948. Regarding environmental concerns, those
regulations address some issues of solid waste management,
protection of water resources and enforcement. However, the
existing legal framework is wholly inadequate in addressing the
environmental requirements of Gaza, especially in light of the high
population growth, the desire for economic development and the very
limited natural resources available.
Oslo and Post-Oslo
The Declaration of Principles of 1993 (Oslo I) addressed
environmental issues, stating that both Israel and the Palestinian
Authority would adopt, apply and ensure compliance with
internationally recognized standards regarding land, air, water and
sea pollution, as well as disposal of solid and liquid wastes. Oslo
I mentioned a Palestinian Environmental Protection Authority
(PEPA), and a draft environmental law was prepared by the Applied
Research Institute of Jerusalem (ARIJ) and the Environmental Law
Institute of Washington, D.C., in January 1995, with the
prospective creation of PEPA in mind.
The ARIJ draft law was a comprehensive one. It dealt with
environmental ¬impact assessments, licensing of regulated
facilities, water-quality protection, air-quality protection,
prevention and abatement of noise pollution, management of
hazardous substances, emergency preparedness and response,
workplace and worker protection, management of solid waste, and
management of domestic and municipal sewage, among other
issues.
This draft law was in many respects based upon the environmental
laws of the United States. In that sense, it was highly developed,
complicated and required extensive enforcement capabilities of the
implementing authority.
The ARIJ draft law was intended to create a discussion on a legal
regime for the environment of Palestine. In the ensuing discussion,
it became apparent that the law was much too developed for the
realities of Palestine, in particular the absence of effective
governmental enforcement mechanisms. Moreover, the discussion of
environmental regulations raised concerns about possible
impediments to economic development, highlighting the Palestinian
commitment to accelerated development, with a minimum of
obstacles.
The negotiation and signing of the Oslo II agreement in September
1995 between Palestinians and Israelis brought environmental issues
to the fore. Environmental protection is specifically addressed in
Article 12 of the agreement. Both parties recognized the
unsatisfactory situation of the environment in the West Bank
(though curiously, Gaza was not mentioned), and declared a mutual
interest in improving this situation, in part through active,
ongoing Israeli assistance to the Palestinians. Both sides
recognized the need to protect the environment and to utilize
natural resources on a sustainable basis pursuant to their own
environmental and developmental policies. In particular, sewage,
solid waste, water, pest control, pesticides and hazardous
substances, planning and zoning, noise control, air pollution,
public health, mining and quarrying, and landscape preservation
were mentioned. Other articles in Oslo II are also related to
environmental concerns, including forestry management, petroleum
and gas exploration, nature reserves and park management. However,
the Palestinians were given responsibility for these environmental
issues as applied only to Area "A." The vast majority of land in
the West Bank and Gaza is designated as Area "C" and remains under
Israeli environmental control.
By 1995, the Environmental Planning Directorate (EPD) was
established within the Ministry of Planning and International
Cooperation (MOPIC). A succession of draft laws provided the basis
for a series on inter-ministerial workshops, where comments were
provided and revisions were suggested. The main issues that arose
in discussing the law were the perceived conflict between increased
economic development and environmental protection, as well as the
ability of the implementing agency to undertake inspection,
licensing, monitoring and enforcement activities. These functions
require resources and manpower, which are currently lacking and
will remain so for the foreseeable future.
Early in 1998, the EPD was integrated into a new independent
agency, the Palestinian Environmental Authority (PENA). PENA is now
in the process of developing a number of specific environmental
policies. In particular, work is currently being carried out on the
development of Environmental Impact Assessment procedures.
Environmental Sensitivity
Environmental concerns have also been incorporated into the
physical planning activities of the Palestinian Authority. In
1995-96, MOPIC developed an Emergency Natural Resources Protection
Plan (ENRP). This plan divided the land area of Gaza and the West
Bank into three areas of varying environmental sensitivity. The
three areas of high, medium and low environmental sensitivity were
based upon studies of the areas' importance with regard to
biodiversity, nature reserves, water resources, agricultural land
and landscape preservation. The purpose of the plan was to guide
development away from environmentally sensitive areas to ones of
less sensitivity. This was to be accomplished by the regulations of
the plan, which provided procedures for specific, listed projects
and developments and which forbade any of the listed projects from
being established in the most environmentally sensitive areas. It
also required that an Environmental Impact Study (£IS) be
performed before listed projects could be established in medium
sensitivity areas. In the least sensitive areas, an Environmental
Review was to be performed on listed projects to determine whether
an EIS should be performed.
Public hearings were held in most municipalities describing the
content and purpose of the plan. These hearings were advertised on
television, radio and in newspapers. What became apparent during
the public hearings was the public's interest in protecting their
environment, along with a concern about the effect environmental
regulations may have on economic development. The public was also
more immediately concerned about the solid waste in their streets
and land.
Though the ENRP was formally recommended by the Higher Planning
Council, it was not formally adopted by the Legislative Council.
Currently, MOPIC is incorporating the ENRP land designations into
its Regional Plan for the West Bank and Gaza. Other governmental
authorities have also developed legislation and policies, aspects
of which apply to the environment. The Palestine Water Authority
(PWA) has developed a "water policy," which provides the basis for
water-sector legislation. Included in the policy is that all
citizens have a right to water of good quality for personal
consumption at affordable costs; damage to water resulting from
pollution should be paid by the polluter; water supply must be
based on the sustainable development of all available water
resources; water supply and wastewater management should be
integrated at all administrative levels; protection and pollution
control of water resources should be ensured; and conservation and
optimum utilization of water resources should be promoted and
enhanced.
The Future
Since the signing of Oslo I and II in 1993 and 1995 respectively,
there has been a recognition of the importance of the environmental
condition of the West Bank and Gaza. The Palestinian Authority is
now committed to developing legal and administrative frameworks
through which to plan for and protect the environment.
The ARIJ draft environmental law, the recent work of EPD and the
ongoing work of PENA on environmental legislation, the ENRP
developed by MOPIC, the work of other ministries and authorities
such as PWA, all have made real and productive attempts at creating
legal frameworks for addressing environmental problems and
challenges in Palestine. However, to make any legal regime for the
environment effective there are a number of prerequisites.
First, the basic infrastructure for pollution control must be
created. Donor countries interested in making a contribution to
Palestine's environment should look to the development of water and
wastewater treatment plants, sewage systems, and solid and
hazardous waste management systems. Laws and regulations alone will
be ineffective without the necessary infrastructure for dealing
with waste and pollution.
Second, institution building with the assistance of donors must be
continuous and patient. The state of flux in the Palestine
Authority, as exhibited by the anticipation of PEP A, the creation
of the EPD, and the EPD's eventual integration into the newly
created PENA can be frustrating and confusing. Donors must involve
themselves in a sustained and long¬term endeavor to build the
expertise and administrative structures necessary to undertake
inspection, licensing monitoring and enforcement activities in both
the West Bank and Gaza. Existing structures for enforcement, in
particular municipalities, local authorities and the existing court
system, must be fully developed and utilized.
Finally, increased public awareness of the need to protect the
environment and to promote sustainable development is essential.
Future laws affecting the environment will benefit from the
public's informed support for their enactment.