by Sharif Elmusa
Water is a central ingredient, perhaps only second to land, of the Palestinian¬Israeli conflict. It may become - although it need not if Israel can muster the political attitude and will - a serious obstacle to concluding a peaceful settlement. The core of the conflict lies in Israel’s highly asymmetrical appropriation of the water resources that are common to it and the West Bank and Gaza (and other Arab countries), as well as the encroachment of the settlers on the endogenous Palestinian water resources.
For example, Israel, according to TAHAL (Israeli Water Planning Authority), extracts 94% of the waters of the common western (Yarqun¬Tanninim) aquifer and 85% of the northeastern (also common), both of which are recharged essentially from the West Bank. In the Jordan Basin, it utilizes 75% more water than was allotted to it in the Johnston Plan, negotiated by the American emissary Eric Johnston in 1955. In the meantime, the West Bank gets nothing from the River in spite of being allocated 140 million cubic meters per year (mcmy) from it, aside from the water of the side streams. Finally, the 100-120 thousand settlers appropriate by Israeli estimates 45-50 mcmy from the eastern (endogenous Palestinian) and the northeastern aquifers and 7 mcmy of the freshest water from Gaza’s coastal aquifer, a profligate level of consumption that was criticized by the Israeli State Comptroller. Unfortunately, the Israeli negotiators in Cairo, perhaps to appease the settlers, insisted on maintaining this skewed status quo, and the Palestinians relented.
Israel has been able to sustain its water privilege mainly through the control of water institutions in the Occupied Palestinian Territories (OPT), and, in the case of the Jordan River, through the control of much of the headwaters after 1967. The Military Government (which was subsequently renamed the Civil Administration) abrogated to itself the legal and executive powers over the production, distribution and use of water in the OPT, denying the Palestinians a voice in decision making. It issued a series of Military Orders (MOs are the primary legislative form for the Palestinians under occupation) that invest in the Israeli "water officer" non-negotiable powers over granting licenses to drill wells or initiation of any water project, and over the amount of water Palestinians can draw from their wells. These powers have been extensively taken advantage of to suppress Palestinian water demand.
To consolidate its control, Israel "transferred" in 1982 the management of water resources in the West Bank for forty-nine years to the parastatal Israeli water company, Mekorot. This coincided with the annexationist policy of the Likud government which viewed the Palestinians as mere "residents" in Erelz Yisrael (Land of Israel) with no rights over land or water.
Mekorot turned its institutional and legal hegemony into a substantial physical reality as well by drilling large numbers of wells and laying a pipe network that spans the entire West Bank. It has thus added one more hurdle in the way of resolving the water conflict and with it the larger conflict. For if Israel decides to withdraw, institutional control may be removed as a matter of course, not so the pipe network and various equipment.
The Israeli-Palestinian Water Gap
The net result of Israel’s unilateral behavior is a substandard level of water use for Palestinians in the OPT as well as a wide water gap between them and Israelis. A few statistics starkly illustrate the situation. The per-capita aggregate water supply in Israel is 3-4 times as much as in the OPT, and the same is true for household supply (see Table). Palestinian household supply is small, 20-30 cubic meters per year (cmy) per person, or about 15-20 gallons a day (one toilet flush is the equivalent of 4 gallons). Actual use is also less than the supply, especially in the household sector, thanks to the losses in the antiquated pipe network that reach 50% of the supply in some areas. Also the water supply is erratic, particularly in the summer months when it is most needed. In spite of the inferior quantities and service, Palestinians in the West Bank are charged, relative to their per-capita income, 8 times as much per unit of household water as in Israel and 20 times as much as settlers pay.
Quantities apart, the water in Caza is highly saline for human consumption, and often polluted with nitrates and other hazardous wastes from the return water of human consumption and agriculture. The meager quantities and inferior quality have had a deleterious impact on health conditions and quality of life. The water system in Caza has been managed by Israel for twenty-seven years; it cannot wash its hands of the problem by blaming it, as it does, on the Egyptian administration before the occupation.
Israel argues that the low level of use in the OPT reflects the level of income. Income does affect the level of use, but there is no rule or formula that specifies the level of use from the level of income. For example, Mexico and Malaysia have nearly similar income levels, but in Malaysia the household use per person is twice as that in Mexico; Egypt has a much lower per capita income than Oman, but the household water use per person in Egypt is higher than in Oman. The reason for these seeming incongruities is that household water use is affected also by factors other than income, such as the supply conditions, availability of sewage system (which is underdeveloped in the OPT) and price (high relative to the income level and reflects Israeli cost and price structure). The 1993 World Bank report on the OPT concluded that household water use there was low relative to that of other countries with comparable incomes.
Iestimate that Palestinian unsatisfied or latent household water demand is equal to the existing demand; in other words, the household demand ought to have been at least double what it is at present. Were the level of water use determined by income, one would expect that the Palestinians would be tapping relatively more water for irrigation than Israel. That is because agriculture is more central in the Palestinian economy (33% of the COP) than in the Israeli (less than 3°/" of the COP), and because its technical efficiency, or output per cubic meter, is somewhat lower. Yet, the total irrigated area in Israel is 10 times as much as in the OPT, and 4-5 times per person, depending on the figure one uses for the Palestinian population. Moreover, Israel has been able to irrigate 95% of its irrigable land, compared to the West Bank’s one-fourth to one-third. Above and beyond the irrigated area within its own borders, Israel has allowed the settlers in the West Bank and Caza to irrigate 47 thousand dunums of confiscated land, with water allocations per unit area nearly double that on Palestinian land.
Israel heavily subsidizes irrigation water, selling it to farmers at one-third or less of the average cost of producing it. This encourages them to irrigate extensive areas of crops such as cotton and wheat. These crops and others like them would probably lose money were they to be charged the actual cost of water. Cotton, for example, is a water-guzzler: it takes one thousand cubic meters to produce one ton of cotton, even more than for one ton of bananas. True, Israel has of late reduced the area of cotton under the pressures of drought and economics, but the area was still 126 thousand dunums in 1991, or 25% larger than the entire irrigated area in the West Bank, which fluctuates around 90 thousand dunums.
Irrigation water supply stagnated in the West Bank since the occupation.
Whereas in Gaza there would have been natural constraints on the water supply, in the West Bank demand was suppressed by the iron-clad restrictions on licensing and quotas. All the increase in supply, a mere 20 mcmy compared to 200-250 mcmy in Israel, was earmarked for household use. The inability of Palestinians to augment their irrigation water supply has been a major constraint on the horizontal expansion of Palestinian agriculture: the area of irrigated land remained constant since the late 1960s, in spite of the presence in the West Bank of more than 170 thousand dunums of first class land that can be readily reclaimed. On the other hand, Israel extended its irrigated area by 340 thousand dunums in the two decades, 1970-90.
Equitable Allocation in Accordance with International Water Law
The conflict over water rights (in the sense of allocations) in the common waters can be achieved through direct negotiations between the two sides, arbitration or mediation. Direct negotiations are preferable, except that the signals that have been coming from the Israeli side are not encouraging. Moreover, mediation could subject Palestinians to undue pressure based on considerations of power rather than fairness. In the end, arbitration, as Egypt and Israel did to resolve the dispute over Taba, may be the most viable Palestinian option. Whichever procedure the two sides opt for would need a guide for devising a new sharing regime.
The best available guide is international water law as promulgated by such international organizations as the non-governmental International Law Association (ILA) and the International Law Commission (ILC) of the United Nations. In particular, Palestinians and Israelis may wish to adapt for the groundwater sources the 1989 Bellagio (after Bellagio, Italy) Draft Treaty. This treaty is not international law but a model treaty drafted by a multidisciplinary team of experts for the management of shared ground water resources. The treaty was drafted specifically as a model for the sharing and joint management of underground water sources. There are numerous international treaties concerning surface water management that can be benefited from in the joint management of the Jordan Basin.
The pertinent aspect of international water law is the doctrine of "equitable apportionment," or equitable distribution. (The Oslo DOP stipulates that there would be an equitable allocation of the joint water resources between the Palestinians and Israelis.) The doctrine specifies a set of "factors" that must be weighed in working out a sharing regime. These factors include (1) the natural attributes of the water source; (2) prior or existing use; (3) social and economic needs; (4) alternative resources and their comparative costs; and (5) the avoidance of appreciable harm.
In spite of the nonbinding nature of international water law and lack of an enforcement mechanism, it may be the "best we’ve got" as a guide for negotiations. The factors are based on treaties and conventions ratified by governments, customs, generally accepted principles, decisions of the judiciary and the opinions of qualified persons; they contain certain "checks and balances" that, if approached in good faith, would protect the interests of both sides.
Israelis, when they accept to refer to international water law, usually insist on one factor: prior or existing use. Israel, however, did not give Jordan prior notification, as international water law requires, when it began in the mid-1960s to extract substantial amounts of water from the joint aquifers. And in the case of the waters of the Jordan, it neither informed Jordan nor any other Arab party when it exceeded its share of the Johnston Plan. Laying claims to shares taken unilaterally is self-serving; it is hard to think of it other than being another instance of Israel’s long-standing practice of faits accomplis.
Authorities on international water law stress that all factors must be weighed and prior use is not paramount. Israel should also consider itself lucky that the prevailing social and economic conditions before 1967 did not permit Palestinians to extract more water from the common aquifers or draw their share from the Jordan River. Now that it has exploited those very waters successfully to spur its economic development, it is time that Palestinians be given the chance to develop their own economy, a process hamstrung by, among other things, lack of water. Indeed, in some of the rules of equitable distribution, the stage of economic development is deemed as one of the factors to be weighed. In any case, prior use remains a de facto condition and does not acquire legitimacy or become de jure, unless the co-riparian agrees to it. The Palestinians cannot be expected to accept a grossly unfair status quo in which Israel appropriates 85% or so of the common waters.
If it is a matter of arbitrary interpretation of international water law, Palestinians could insist that the only factor to weigh is the natural attributes of the water sources. This would give them 80%-90% of the waters of the western and northeastern aquifers, because they are preponderantly replenished from the West Bank. This, however, would not be acceptable to Israel. The way out of such a deadlock is for the two sides to adhere to the letter and spirit of the doctrine of equitable apportionment and agree to weigh all the factors.
All factors weighed, Palestinians would be entitled to a larger share of the common water sources than Israel, certainly to a much larger share than today’s. That is because Israel has access to relatively greater quantities from sources other than those common with the OPT that can satisfy its basic water needs and more. It also has potentially greater quantities of, and greater economic and technical capabilities to tap, yet untapped resources.
The Negev, for example, sits on a tremendous aquifer, which, according to some Israeli scientists, could satisfy the water needs of that region for a hundred years, and could even be used to irrigate crops in the coastal area. True, the water is brackish (or somewhat saline) to saline, but it can be desalinated at prices competitive with current costs. In addition, Israel has a broad sea front on the Mediterranean from which it can draw practically limitless amounts of water for desalination. Israel possesses desalination technology which it also sells worldwide. Israel also has been recycling water, and is planning to double the present volume of 200 mcmy within twenty years.
By contrast, alternative sources are extremely limited in the landlocked West Bank, and Gaza has a limited sea front. Also, the income level in Gaza would make the cost of desalinated sea water burdensome, if not prohibitive, for the consumer. Moreover, the Palestinians have barely begun to construct an operative sewage system; building a tangible water treatment and recycling capability is many years away.
Israel would have a chance to develop those resources without sustaining "appreciable harm." For example, it would cost Israel only an extra US$ 200-300 million annually for desalinating 400 mcmy instead of pumping them from the aquifers or from Lake Tiberias. Even more significantly, the Israeli economist Gideon Fishelson estimated that Israel could reduce its irrigation use by one-half and its GOP would drop by 2% only. His estimate was for 1982-83 when agriculture contributed 6% of the GOP. Today, the impact would be appreciably smaller; it can even be further reduced if Palestinians, whose demand cannot be expected to rise abruptly, would agree to sell Israel the excess water they are entitled to until such a time when their demand absorbs all their water share.
Moreover, this is not a zero-sum game, where Israel would have to give up, or rather give back, water. First, Palestinians would have an incentive to properly manage the headwaters of the mountain aquifer, and Israel would be serving its own interest. Second, in the context of a peaceful settlement and regional cooperation, Israel stands to gain a great deal in the water sector as well as water-related technology trade. Israelis have been proposing a variety of mega projects for generating hydroelectric power in order to reduce the costs of desalination (energy is the input that drives desalination costs) by taking advantage of the differential elevation between the Mediterranean and Red Seas, on the one hand, and the Jordan Rift, on the other. Such schemes can be financed by international lending agencies only if Jordan and Palestine agree to them. Finally, one can safely assume that Israel is keen to sell its desalination technology in the Middle Eastern desalination market, the largest such market in the world.
Changing Attitudes about Water
Israel then can afford to concede to the Palestinians their fair share of the water that it has exploited for so long. To be sure, there are vested and political interests who would oppose such an act. Many in the Israeli water establishment seem to have gotten used to the notion that these waters are theirs. The right wing can be expected to resort to scare tactics about Israelis going thirsty and their landscape turning into a wasteland. There are also Israeli strategists who claim that if Palestinians took control of the headwaters of the western and northeastern aquifers they would severely pollute and dry up the extensions of the aquifers in Israel. To ward off such an outcome, they call for the retention of a strip of the West Bank along the western and northern borders with Israel that amounts to 20% of the area of the region. (Imagine if such expansionist thinking were to prevail with respect to the hundreds of shared joint water sources around the world.)
Fortunately, there are also countervailing trends. Water in Israel has been losing its status as an emotional issue. That status is said to have been engendered by the water’s link to agriculture which early Zionists saw as a source of redemption of, and rootedness in, the land. But things have changed. Today Israel is 90% urban; agriculture contributes less than 3% of the GDP and employs nearly the same percentage of the labor force; agricultural operations are mostly mechanized; and a good deal of agricultural labor is done by Palestinians.
It is difficult to fathom how agriculture under these circumstances can be a source of redemption or rootedness, except perhaps as an atavistic reflex among a few and among the small minority engaged in it. The ideology of redemption has come under scrutiny in Israel itself. For instance, a 1991 editorial in the Jerusalem Post "What to Do About Water" dubbed that ideology "anachronistic," and "irrelevant in a sovereign state." In a similar vein, an increasing number of Israeli water experts have begun to advocate that water be viewed as an economic resource, and be subject to economic, rather than political, calculus. The fading of the emotional symbolism of water should give the Israeli government a freer hand to make the necessary compromises on the water front, should it become so inclined.
Summary of Indices of the Israeli-Palestinian Water Gap
Consumption per capita:
Aggregate: 100 Palestinian, 300-400 Israel
Domestic: 100 Palestinian, 300-400 Israel
Price per cubic meter:
Domestic 100* Palestinian, 100 Israel
Agriculture 100 Palestinian,80 Israel
Relative to GNP /capita:
Domestic 100* Palestinian, 12 Israel
Land area per capita 100 Palestinian, 400 Israel
Irrigated/ cultivated 100 Palestinian,1000 Israel
Irrigated/ irrigable 100 Palestinian,400-600 Israel
• Palestinian consumers pay in absolute tenns three times as much as the settlers who pay subsidized prices, or more than 20 times in relative tenns.