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Equity of Water Resources Allocation in the International Law

January 15, 2007

The real conflict of the beach is not between sea and shore, for theirs is only a lover's quarrel, but between man and nature. On the beach, nature has achieved a dynamic equilibrium that is alien to man and his static sense of equilibrium. Once a line has been established, whether it be a shoreline or a property line, man unreasonably expects it to stay put.

~G. Soucie, Smithsonian 1973

 

It is often the case that both the Palestinians and Israelis ground their arguments in the negotiation over water allocation on principles of international law. A key question, which is related to the issue of sovereignty over water resources of the region, is: who has the right to what resources? The major international laws deemed tangible to the Arab-Israeli water dispute are the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and the Helsinki Rules of 1966 (Wolf, 1999). International law is an area of great controversy, however. Although binding on all nations, the applicability of many elements of these laws to the Arab-Israeli dispute is denied by Israel (Rouyer, 2000). Regardless of what international law is applicable to this conflict, the issue of far reaching interest is related to the question of equity.

Common water allocation practice is based on either hydrographical or chronological grounds. The hydrographical argument, referred to as "the doctrine of absolute sovereignty," is pertinent to the origin of a river or aquifer and how much of its boundary falls within each riparian state. This argument is often made by upstream riparians who claim, based on the Harmon Doctrine, absolute sovereignty of water falling in their boundary (Spiegel, 2005). Conversely, the chronological argument, referred to as "prior appropriation," reflects the historical use of water that is, first in time, first in right (Wolf, 1996). Downstream riparians rely on this argument to support their claim of historic rights to water (Wolf, 1999).

Legal principles of international law fall into two main categories; extreme principles, such as "the doctrine of absolute sovereignty," referred to as "the Harmon Doctrine," "the doctrine of absolute riverian integrity," and "prior appropriation doctrine," and moderated principles, such as "the doctrine of limited territorial sovereignty," "the Helsinki Rules of 1966," and "the 1997 UN Convention on the Non-navigational Uses of Watercourses" (Wolf, 1999). Extreme legal principles address issues pertinent to sovereignty, absolute river integrity, and historic rights, whereas moderated principles focus on issues of equitable use and the obligation not to cause significant harm. International law introduced various measures to promote water-sharing equity. These measures, including rights-based measures, needs-based measures, and measures based on economic grounds or efficiency, evolved over time. The applicability and effectiveness of these conflicting doctrines on the Middle East disputed water resources is questionable.

Pertaining to the question of rights-based equity, international law gives priority to both "existing" and "historical" uses of water (Kally, 1993). However, trends of past agreements show a pattern of underscoring the significance of historical and geographical considerations in international water disputes (Wolf, 1999). Based on that, the Palestinians assert that their historical rights to the water were always protected during the Ottoman, British, Egyptian and Jordanian Rules. They further make the claim that only under the Israeli occupation have these rights been summarily denied (Rouyer, 2000). The heart and sole of the Palestinian legal claim to water resources of the Gaza Strip and the West Bank rests on the international law of "belligerent occupation". Based on international law, the Palestinians criticize both the existence of Israel in the Gaza Strip and the West Bank and Israel’s practice of exploiting surface and groundwater in these territories as being illegal. Conversely, attempting to indemnify their actions, the Israelis often deny the applicability of these laws equating their argument with the denial of the term "occupation".

The Helsinki Rules of 1966, which put emphasis on the right to "beneficial use" rather than the right to water per se (Housen-Couriel, 1994), provided eleven factors pertinent to hydrographic and socio-political criteria (Wolf, 1999). Those factors were suggested to be considered as a whole to resolve water allocation conflicts.

The 1997 UN Convention on the Non-navigational Uses of Watercourses provided general guidelines that both the Arabs and Israelis could very well benefit from. The two main principles introduced in the 1997 UN Convention are "equitable and reasonable utilization", set forth in Article 5, and "no significant harm" to other watercourse states, set forth in Article 7 (Diabes-Murad, 2004). It further gives "special regards" to the "requirement of vital human needs" (Wolf, 1999). Although the concept and guidelines for "reasonable and equitable" sharing of common waterways were introduced in the Helsinki Rules of 1966, as well as the 1997 UN Convention, no clear definition of this concept was provided (Caponera, 1985). This makes it easy for disputing entities to interpret the law differently according to their own perceptions and desires, which tends to generate a great deal of conflict (The European Platform for Conflict Prevention, 2000).

In handling the conventional long-standing dispute between upstream and downstream riparians and existing and future uses, the international law provides more protection for the downstream users and existing uses (Wolf, 1999). This practice is often conducted with little regard for environmental concerns. Although it laid some ground rules to manage the sharing of the disputed water resources, international law seems ambiguous and in many cases contradictory (Wolf, 1996). In addition, the law does not have teeth in the sense that it does not provide a clear enforcement mechanism to ensure the applicability of its rules. Nonetheless, Israel, not fulfilling its obligations as a belligerent occupier, has been unilaterally in control of all water resources of the Gaza Strip and the West Bank. The current utilization of the international water resources of the Middle East does not by any means comply with the international law, namely the "equitable and reasonable utilization" and the "no harm" principles (Diabes-Murad, 2004).The application of equitable water-sharing to disputed water resources in the Middle East is of paramount importance in enticing hydropolitical stability. Equitable sharing of water resources therefore tends to induce cooperation among nations involved in high tension political agons, which sets the stage for peaceable relationships among disputing states. Equity in water resources allocation and the ongoing pursuit of sustainable peace in the Middles East are inextricably linked.

The applicability of the international law to the volatile watercourses of the Middle East is inconclusive and should take a more proactive turn. Enforcing the law is crucial in this regard. Without clear and puissant enforcement mechanisms, the situation could easily escalate into chaos, where little hope for peace is left. It is imperative to point out that international law provided general rules to allow room for flexibility and adaptability for states to more easily find solutions for various cases. However, in the case of the Arab-Israeli conflict, this flexibility caused more disagreements among disputed parties over the meaning and interpretation of the law to justify and legitimize their positions. Aside from these laws, the focus should be on finding common ground for equitable distribution of water resources based on real needs of the population, which should stem from water rights, rather than the desire of the riparian states. Regardless of water ownership entitlement, satisfying the urgent need for domestic and potable water should have priority over agricultural application. The international law is necessary, yet not sufficient by itself. Good will on both sides, the intervention of a third party, and an ongoing negotiation and cooperation process are warranted for the success of effective and environmentally sound water allocation practice.

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