The Development of Palestinian Environmental Law and Legal Advocacy
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.