An Introduction

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.