Adapted from parts of the introduction to A Proposal for the
Development of a Regional Water Master Plan prepared by a joint
Israeli-Palestinian team: Karen Assaf, Nader al Khatib, Elisha
Kally and Hillel S1zuval, published by the Israel/Palestine Center
for Research and Information (IPCRI), Jerusalem, October
1993.
Adequate supplies of good quality water are an essential element
for the survival, economic welfare and prosperity of both Israelis
and Palestinians and a major cause of deep concern and fears for
the future on both sides. For better or for worse, the Israelis and
Palestinians, who are currently searching for a peaceful resolution
to their long-standing conflict, are bound together by a common
geography and hydrology in their shared use of the transboundary
water resources of the area. This common geography ties their fate
together and requires that they find a common solution to their
joint needs. It is assumed that both parties are committed to the
peace process according to which, after an interim period, some
form of Palestinian entity will be established in the Occupied
Territories.
One of the existential concerns of the Palestinians is to obtain
adequate supplies of water to assure their economic and social
development and meet the needs of the expected major increase in
population. Israel is no less concerned that its future water needs
be assured. There are already claims and counterclaims about water
rights concerning the shared use of the transboundary waters common
to Israel and the Occupied Territories. A solution to these water
issues will be one of the preconditions for the successful
conclusion of the peace process.
Failure to find a solution to the water problem that will meet the
legitimate current and future human needs of both peoples can place
a serious road-, block on the road to peace. A proposal for a just
and equitable solution to the water issues which holds out a real
hope for sufficient water supplies for both sides can provide an
attractive motivation to help promote the peace process.
There are three major transboundary water resources shared by the
Israelis and the Palestinians involved in the common dispute. Prior
to the Israeli occupation of 1967 these shared water resources
would have been defined by international law as shared
international water resources.
1. The Mountain Aquifer
Most of the waters of this aquifer, derived from rainfall over the
West Bank, flow naturally from the hilly regions of the West Bank
to the west and northeast into Israeli territory where it has been
utilized within the present boundaries of Israel by Jewish farmers
going back as far as seventy years, in addition to its use by
Palestinian farmers. To the east of the hydrological divide the
water flows toward the Jordan Valley and for all practical purposes
is not considered transboundary water since its flow is almost
entirely within the West Bank.
The Palestinians, who claim priority in utilization of the mountain
aquifer since most of its flow is derived from rainfall over the
West Bank, accuse Israel of severely over-pumping the western basin
of the mountain aquifer and of wastefully using the highly
subsidized water to grow non-economic crops which threaten the
future of this vital shared resource. They see such use of the
natural resources of the Occupied Territories as contrary to
international law. They point in particular to the eastern aquifer
which is totally within the West Bank. They accuse the Israeli
authorities of preventing them from digging a sufficient number of
additional wells for their own essential urban and agricultural
needs, according to the principles of international water
law.
Israel bases its claim for the continued use of most of the flow of
the mountain aquifer, which naturally drains into Israel, on its
prior historic de facto use of the aquifer for essential human
needs and economic purposes going back some seventy years, long
before any major Palestinian use of the aquifer was initiated. They
note that the British Mandatory Government granted Pinhas
Ruttenberg a concession for unrestricted use of the Yarkon (Uja)
River in 1927. Palestinians challenge the legitimacy of the
concession. The Israelis say they have not increased their
utilization of the western or northeastern aquifers since 1967 as
they were being fully utilized prior to that date. They claim to
base themselves on the internationally accepted practice of
recognizing historical use such as the case of Egyptians'
internationally recognized claim on the use of the Nile River,
although none of it falls as rain over Egyptian territory. Within
the limits of allowable safe yields of the mountain aquifer, Israel
claims that the Palestinians have been granted permission to
utilize water resources and dig new wells in the West Bank.
2. The Jordan River Basin
The flow of the upper regions of the Jordan and Yarmouk Rivers
emanates from, or passes through Israel, Syria, Lebanon and Jordan,
while the flow of the lower reaches of the Jordan and Yarmouk
Rivers passes along the lower Jordan Valley areas of the West Bank.
Thus, here too, Israelis and Palestinians find themselves sharing
in the use of a transboundary water resource.
The American Johnston Plan of 1955, though never formally approved,
served as the de facto basis for the division of the Jordan and
Yarmouk Rivers between Israel and Jordan.
The Syrians never agreed to this division and diverted the Yarmouk
River within southern Syria far beyond the proposed Johnston Plan
allocation. The Jordanians and Palestinians claim that Israel pumps
more than its allocation so as to promote the irrational export of
water-intensive crops at the expense of basic Palestinian
needs.
As part of the allocation to Jordan, the Johnston Plan allocated
water for use by the Palestinians in the West Bank.
The actual plan to divert this water to the West Bank from the
Yarmouk River was never carried out and the Palestinians claim this
allocation is still due to them. The Jordanians claim that this is
impractical because of the Syrian diversion of the Yarmouk River
and since the Jordanians have absorbed hundreds of thousands of
Palestinian refugees after the 1967 and Gulf wars.
Prior to 1948 the Palestinians used water from the lower Jordan
River directly for irrigation and water supplies all along the
Jordan Valley. The diversion of major flows of the Jordan River
into the Israel National Water Carrier in 1961 reduced the overflow
from Lake Tiberias to a minimum in the summer. Other causes for the
drying up of the lower Jordan River were the diversion of the
Yarmouk waters by Syria and Jordan.
As for Israel, its claim to the existing waters of the Jordan River
Basin is based on the Ruttenberg Concession of 1927, the de facto
Johnston Plan allocation, and its natural riparian rights under
international law. The Palestinian claim to this water is founded
on de facto historic use prior to 1948 (taken away from them
without their consent) and their natural riparian rights under
international law, as well as the Johnston Plan allocation of water
to the West Bank.
3. Surface and Groundwater in the Gaza Strip
Israelis and Palestinians are also involved to a limited extent in
sharing the surface and groundwater flow in the Gaza region. The
Gaza aquifer is essentially a part of the coastal aquifer in
Israel. There has been severe over¬pumping of the groundwater
in Gaza for the past forty years, particularly during the period of
the Egyptian administration from 1948-67, resulting in severe
salination of most of the wells. Overpumping exceeds the natural
rate of replenishment and in many areas the water is unfit for
agriculture and drinking. This most severe and urgent water crisis
could cause the total salination of the aquifer in a few years time
without sufficient additional water to replace the
overpumping.
The shallow sandy sandstone aquifer is fed almost entirely by
direct local rainfall. The Palestinians point out that post-1967
Israeli settlements in Hevel Katif within the Gaza Strip pump much
water from the over-pumped aquifer, and that Israeli drilling of a
series of wells on the Israeli side of the border to the east of
the Strip has greatly reduced the flow into the Strip and caused
more salination of the wells.
Israel denies these charges, claiming that the salination is mainly
the result of years of unregulated overpumping within the Gaza
Strip. Recognizing the seriousness of the situation, Israel has
taken some steps to alleviate it, including introduction of more
water from the Israel National Water Carrier and the building of a
small plant to desalinate brackish water at one of the refugee
camps.
The above summary shows that water rights and water quality in the
three transboundary resources must be resolved and regularized in
the framework of a peace treaty dealing with sharing water and its
management, environmental protection and control.
The Role of International Law in the Water Dispute
A comprehensive system of principles and practice in international
law has been evolved over the years. Thus international water law
has been accepted by many nations as legally binding, based on the
consistent practice of peaceful states in dealing with shared water
resources. However, there is no supra-national authority which can
compel unwilling members of the international community to abide by
such rules.
Though international agreements, guidelines and precedents can
assist negotiators in water disputes, in the final analysis only an
agreement based on consensus between the partners can provide a
binding solution. Severe conflicts, and even war, have resulted
from shared international bodies of water and claims for sovereign
rights by both upstream and downstream countries.
Evolving mainly from surface water issues, international law today
also covers transboundary groundwater questions, with the status of
the latter well established in key documents.
In the current era, when the sharing of resources is hopefully
becoming the normative pattern in international relations, new
views on international water laws have developed. The "Helsinki
Rules" of 1966 state that "each basin state is entitled, within its
territory, to a reasonable and equitable share in the beneficial
uses of the waters on an international drainage basis". Other
factors to be taken into account include possible alternative water
sources available to one of the parties, economic compensation and
the economic and social needs of each state. The needs of the
communities sharing the common resource must be balanced. Despite
their moral right, the principles of international water law, some
nations have not yet fully accepted them. The law is considered by
experts to apply equally to ground and to surface water, but this
acceptance is less universal among the nations of the world.
From the point of view of experts in international law, the
conclusions are as follows: the position of some, that only by the
physical occupation of territories which serve as a source of its
water resources can a country assure its water rights, is not
generally supported by the normal practice of peaceful nations or
international water law. Neither is there a legal basis in the
claim of others that they have exclusive or absolute rights over
the use of water derived from sources within their territory. The
claim that prior historical use assures immutable water rights is
also not absolute in terms of international law.
The legitimate and growing human needs of the Palestinians to a
just and equitable solution must take into account both the
historic riparian rights of Israel as one of the de facto users of
the shared transboundary water of the Jordan and Yarmouk Rivers,
the mountain aquifer and the groundwater and surface run-off in the
Gaza area, as well as the legitimate rights and growing human needs
of the Palestinians to their just allocation of these shared
international waters. Though these terms are not clearly defined in
international law, direct negotiations on "equitable apportionment"
and "community of interest" are preferable to an attempted
enforcement of a solution by some supra-national authority.
Whether or not international law is actually binding, the community
of nations will expect Israel and the Palestinians to honor the
principle of "equitable apportionment" so as to meet the legitimate
needs of each partner sharing the transboundary water
resources.
Proposed Basic Principles for Peaceful Cooperation between the
Partners to Shared Water Resources
1. Water rights should not be taken or changed by force or without
mutual agreement.
2. The "Minimum Water Requirements" (MWR) of the partners to the
Israeli¬Arab conflict should be assured in the spirit of
international water law based upon the principle of equal
apportionment of the shared water resources and the other water
resources available to each. In order to meet the minimum
legitimate human and social needs of each partner, they should be
assured a minimum of an equal water allocation per person per year
for domestic, urban, industrial and minimal fresh food use required
for survival.
3. Water resources within the territory of a partner will first be
allocated to meet the present and future MWR of that partner, and
after that, the other water uses within the same territory.
4. Historical de facto water usage from shared resources should be
maintained and normalized through negotiations and mutual agreement
on condition that the MWR can be met for each partner from sources
within each territory sharing the water resource, or from adjacent
sources to which the territory has obtained the right of use
through agreement with another entity. If water is transferred from
one entity to another to help meet its minimal needs (MWN), the
amount that will be transferred at any given time will only be that
amount required to meet the actual current domestic / urban /
industrial demands at the given time.
5. All data and information about water resources should be freely
available to all the partners on a shared international water
resource basis.
Dr. Elisha Kelly proposed as a sixth principle that each entity on
a shared international water resource should cover its own costs of
water development and they should not be charged to another
entity.
Guidelines for Action
1. Unused water, in one or more of the territories on a shared
international drainage basin that can meet all of its own present
and future MWR from its own local sources, should be the prime
candidate for negotiations and agreements aimed at the sale and/ or
transfer of water to its neighbors on the same international
drainage basin who cannot meet their MWR from local or available
sources which it has historically used or has gained the legal
rights to use through agreement.
2. In the case where there are more than two entities sharing water
resource and one or more of them cannot meet all of their present
and future MWR and two or more of the other entities can meet their
own MWR, then the degree of liability of potential donors to assist
the water-short entity shall be proportional to the extent of the
potential donors' unused water resources and/or to the excess water
above the amount needed to meet their own MWR.
3. A non-contiguous territory in the immediate region that can meet
its own present and future MWR from its own local resources should
also be considered as a potential candidate donor to water sale and
transfer to its neighbors in need of water as a function of its own
unused water resources, or the excess water above the amount needed
to meet its own MWR.
4. The permanent or temporary transfer of water and/or water rights
from one territory to another should be arranged through
negotiations and mutual agreement. Compensation for transferred
water or water rights must be determined through negotiation and
agreement.
5. Every agreement involving the establishment of allocations,
normalization, transfer or re-allocation of water or water rights
on a shared water resource, should include appropriate factors such
as financial or other forms of compensation, water exchange or
water import from external sources. Other factors in such
agreements should include assured agreements for environmental
protection and pollution control of the watersheds of shared
international water resources, uniform enforcement of agreed upon
environmental standards and guidelines, information and
data¬sharing, joint commissions for inspection, joint programs
of hydrological and environmental surveys and studies, monitoring
and control of both quantity and quality of water on both sides of
the border and agreed upon methods of settling disputes including
arbitration and/ or adjudication.