One of the remaining unresolved issues between the Israelis and
Palestinians is the shared use of the Mountain Aquifer, the major
portion of the recharge area of which lies under the occupied
territories, but which flows naturally into Israeli territory, both
to the northeast and to the west. Most of its groundwater has been
utilized within Israel from springs, rivers and wells for many
years.
In this paper, I have assumed that, as an outcome of the Oslo
agreements to which the present Government of Israel is officially
committed, some form of Palestinian self-rule, autonomous entity or
independent state will evolve in stages in all or part, of the
occupied territories. Based on this assumption, it is apparent that
the Mountain Aquifer will be considered under international law as
a shared body of trans-boundary groundwater (Caponera, 1992) with
claims and counterclaims by both sides as to its future utilization
and control, which must be resolved by a peace agreement.
The Mountain Aquifer
The Mountain Aquifer covers the central area of the occupied
territories on both sides of the Judean and Samarian mountain
range, and extends, generally, from the Jezreel Valley (near Afula)
in the north to the Beersheba valley in the south, and from the
foothills of the Judean Hills near the Mediterranean in the west to
the Jordan River in the east. The Mountain Aquifer can be divided
schematically into three general zones: the western basin
(Yarkon-Taninim), the northeastern basin (Schehem/Nablus-Gilboa)
and the eastern basin, as shown in Figure 1 (Shuval 1992;
Gvirtzman, 1994).
Starting some 80 years ago, Jewish farmers and water companies
actively started draining swamps and developing the water resources
of the western and northeastern zones of the Mountain Aquifer for
Jewish agricultural development in the pre-State period up to 1948,
with the full approval of the British Mandatory authorities. Water
resource development expanded rapidly after the founding of the
State of Israel in 1948, and the western and northeastern sections
of the Mountain Aquifer were fully exploited by Israel, within the
boundaries of Israel, well before 1967.
It is true that after the occupation of the West Bank in 1967,
Israel prevented any further utilization of the aquifer by the
Palestinians; however, there appears to be no evidence that there
were any constraints on the development and utilization of the
natural water resources of the Mountain Aquifer by the Palestinian
Arab population under the Ottoman, British or Jordanian
administrations, between the turn of the century and the end of the
Jordanian administration of the West Bank in 1967. However, during
this period, intensive Arab development of the groundwater
resources of the Mountain Aquifer would have required heavy
investments in hydrogeological investigations, modem deep-well
drilling technology, costing much more than available to the
individual Palestinian landowners/farmers or municipalities.
Israel, thus, has a strong legal claim of prior historic use for
that share of the aquifer it presently uses within Israel, which is
firmly supported by the principles of international law.
While the source may indeed be mainly from rainfall over the
Palestinian populated areas of the West Bank, Israel's prior use of
the water, whose natural flow is into Israel, is fully accepted by
international law as legitimate use of a shared resource. It is
incorrect to claim that such prior use of the shared aquifer within
Israel is "stealing" water from the Palestinians; for example, 100
percent of the Nile River flow used by Egypt emanates from sources
outside the country. Nevertheless, it must be recognized that, from
a historical, national and social perspective, the Palestinians are
indeed a deprived people in the area of water-resource development
and availability, but not because of any major external legal or
political constraints. Israel has officially recognized that,
despite Israel's prior use of the shared aquifer, the Palestinians
do have distinctive water rights to the aquifer, which were
articulated in the Oslo II agreement.
The eastern basin of the Mountain Aquifer is fundamentally
different than the western and northeastern basins which can
clearly be considered shared trans-boundary international water
resources. Almost all of the feed area of the eastern basin is in
areas of the West Bank, except for a small portion in and around
Jerusalem and the Jerusalem Corridor.
From a very preliminary analysis, it would appear that today, of
the estimated 700 million cubic meters/year (MCM/Yr) of potential
safe yield of the Mountain Aquifer, 415 MCM is now and has been
utilized within Israel's borders prior to 1967, with much of its
use going back some 60 - 80 years. Some 115 MCM/Yr is currently
used by the Palestinians, while another 65 MCM/Yr is pumped by
Israel from new wells drilled since 1967 within the West Bank,
mainly for use by the new Israeli civilian settlements there. It is
estimated that there may be about another 110 MCM/Yr of unutilized
water in the Eastern Aquifer which might be tapped as sweet water
through deep wells. This source is specifically mentioned in the
Oslo II agreement for potential supplemental water supplies for the
Palestinians. In addition, the Palestinians pump some 100 MCM/Yr
from the Gaza Aquifer.
The total available water for the Palestinians in 1996 was about
215 MCM/Yr. Thus, assuming that these estimates are correct;
without reducing Israel's pre-1967 water withdrawal from the
Mountain Aquifer within the borders of Israel, the potential water
increases that might be available to the Palestinians (including
compensation for the current Israeli water withdrawal within the
West Bank) might be some 175 MCM/Yr.
The Role of International Water Law
International water law is not binding or enforceable by some
supra-national authority; however, it does carry considerable moral
weight as the manner in which peace-loving countries resolve their
water conflicts.
This enlightened and peaceful approach is summed up in the Helsinki
Rules of 1966 and the draft recommendations of the International
Law Commission of the UN (Caponera, 1992). These propose that water
disputes be settled by negotiations. Article IV of the Helsinki
Rules states 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 basin." These rules
further provide for taking into account, among other means,
possible alternative water sources that might be available to one
of the parties, the possibility of economic compensation and the
economic and social needs of each state. Most of the effective
international water treaties provide for the establishment of joint
commissions for inspection, monitoring, control and management of
shared water resources, so that all parties can be assured that the
terms of the agreement are in fact being adhered to.
If we are to accept the point of view of the experts in
international law, we would come to the following conclusions: The
position 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. Similarly, there is
little legal basis in international water law to support the claim
of others that they have exclusive 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 water law. Thus, based on modem
principles of international water law, both the historic riparian
rights of Israel as the downstream user, and the water rights of
the Palestinians as the upstream party on a shared body of water,
must be considered on the basis of equity and legitimate
needs.
The Palestinians claim that any water extraction within the West
Bank after 1967 for Israeli civilian settlements is illegal and in
violation of the Geneva Convention concerning the rights and
obligations of what is defined as ''belligerent occupier"
(Al-Hindi, 1990). Under the Geneva Convention, the utilization of a
territory's natural resources by a "belligerent occupier" for
civilian purposes is not allowed (Benvenisti, 1994). In this case,
Israel will not be able to claim prior historic use, since all of
the wells were drilled under the authority of the Israel Military
Administration after the 1967 occupation of the West Bank. During
this period, the Israeli authorities prevented the Palestinians
from developing those very same water resources to meet their
needs. The fate of these major Israeli water extractions, mainly in
the eastern basin of the Mountain Aquifer, will have to be
determined as part of the final stage of the Israeli-Palestinian
negotiations based on the Declaration of Principles (DOP).
One overriding principle of international water law that is almost
universally recognized is that, regardless of all other factors, a
nation on a shared water basin has the right to expect that its
minimal needs for water for domestic uses required for its survival
be met. This concept is specifically mentioned in the Israel-Jordan
peace agreement and has thus been accepted, in principle, by
Israel. We shall consider the possible implications and
applications of this principle in the Israeli-Palestinian dispute
over the Mountain Aquifer.
Proposed Concepts for Peaceful Cooperation between Israel and the
Palestinians
The basic concept proposed in this paper aims at providing the
parties to the dispute with a yardstick for their consideration as
one possible approach to assuring the minimal human needs of the
parties which could meet the criterion of a "reasonable and
equitable share," as formulated under the Helsinki Rules, which are
accepted as one of the cornerstones of international water law
(Caponera, 1992).
It is generally agreed that the minimum water requirements (MWR) to
meet basic human needs are those quantities needed for drinking
water or 80 "domestic consumption." In a modem industrial/urban
community, the amount of water used in the home for domestic
consumption may vary between 100-250 liters/person/day or 35-88
cubic meters/person/year (CM/P/Yr). This does not include the
additional amounts of water that must be supplied to a city for
public use (schools, hospitals, parks, green belts, playing fields,
etc.), commercial use (stores, workshops, laundries, offices,
etc.), and industries which usually require the same potable water
quality. In most industrialized countries, the amount of water of
potable quality that is supplied to meet all domestic, commercial,
public and industrial needs varies from 100-200 CM/P/ Yr. I have
suggested that the MWR to meet basic human needs for survival in a
modem urban/industrial Israeli and Palestinian society (Shuval,
1994), including all the water required for
domestic/urban/commercial/industrial purposes be based on the
current and future estimated use by Israel of125CM/P/Yr
(Braverman/Tahal, 1994). While the current Palestinian
domestic/urban/industrial use is much lower than this due to the
current lower level of socioeconomic development, as well as
external constraints such as water shortages, I propose as a matter
of principle that the estimated water requirements for the year
2030 which should serve as the basis for estimating the future
needs of each people be assumed as being equal, since the concept
of equity is an essential element in conflict resolution (Shuval,
1994). This assumption is also correct professionally since, with
time, economic development and greater water availability, the
Palestinian economy will develop and domestic/urban needs will
increase accordingly, as has happened with all other developing
nations.
Based on the estimated MWR and the future population by the year
2030 of Israel of about 10 million, and of the Palestinians of
about five million, we can estimate that the MWR for Israel by that
time will be about 1,250 MCM/Yr, and the needs of the Palestinians
will reach some 625 MCM/Yr.
The MWR calculation does not include any other direct allocation of
fresh water for agriculture, but does assume that additional water
for agriculture and/or other industrial or urban non-potable uses
can be made available through the recycling and reuse of some 65
percent of the water allocated for domestic/urban/industrial use.
In other words, there will be, in effect, the possibility of
generating another 80 CM/P/Yr if an effective, total
water-recycling program is introduced. Thus, the total effective
availability of water could reach 205 CM/P/Yr (125 CM/P/Yr from
fresh water sources and 80 CM/P/Yr from recycled wastewater).
Based on the estimated current water resources available to the
Palestinians of 215 MCM/Yr, it is clear that, unless there is a
major increase in the availability of water supplies, the
Palestinians will suffer in the future from serious water
shortages. Assuming for the moment that they have available only
the water resources that they currently use, then their per-capita
water use would be reduced from 86 CM/P/Yr in 1996 to an
intolerably low level of 43 CM/P/Yr in the year 2030. The total
amount of additional water required just to meet the MWR of the
Palestinians in the year 2030 is thus estimated at some 415
MCM/Yr.
Where will the additional amount of water required by the
Palestinians for minimum social and human needs come from? Will
Israel agree to allow the Palestinians to increase their water
withdrawals from the shared Mountain Aquifer with a similar
reduction of withdrawal by Israel? These are questions that will
have to be determined in the final stage of the Oslo negotiations
between Israel and the Palestinians. Alternatively, will the
Palestinians obtain additional water by desalination of sea water
at Gaza or by pipeline projects from relatively water-rich Arab
neighbors, such as Syria and Lebanon?
I have assumed that the Palestinians can develop an additional 110
MCM/Yr from yet-untapped sources in the Eastern Aquifer. In
addition, for the purpose of this discussion, I have assumed that
Israel will find its way to compensate the Palestinians for the
amount of water that it withdraws from the wells that Israel dug in
the West Bank after 1967, for the use of civilian settlements
concerning which Israel cannot claim prior historic use. Based on
these assumptions, the Palestinians may thus have at their
disposal, in the coming years, an additional 175 MCM/Yr and should
be able to meet their minimum water requirements for the next 10-15
years or so. However, the additional amount of water required by
the Palestinians by 2030 would still be some 250 MCM/Yr. Israel's
current official position has been that it has no legal obligation
to reduce its legitimate historic use of the western and
northeastern zones of the Mountain Aquifer currently pumped within
the borders of Israel. Will Israel be able to make a generous offer
to increase the Palestinians' share of the Mountain Aquifer, which
means a similar reduction in its share?
One possible innovative approach to evaluate this question,
developed by the Harvard Middle-East Water Project, is based on an
economic model which estimates the monetary value of the water in
dispute. According to Fisher, if Israel decided as a good-will
gesture to further the peace process by allocating the water
required, or even 50 percent of the Palestinians' ultimate needs
for additional water from its share of the Mountain Aquifer - that
is, about 125-250 MCM/Yr - the cost to Israel's economy would be
about $25,000,000-50,000,000/year, based on today's value of the
water to the Israeli economy. Israel might suggest that any
additional water required by the Palestinians above that amount be
developed from new, non-conventional sources, such as sea-water
desalination, just as Israel will be obliged to do in some 20-30
years from now. Even if, in the year 2030, Israel would have to
replace the water given to the Palestinians with desalinated sea
water, the cost to the Israeli economy, at that time, would be
about $100,000,000-200,000,000/year. According to Fisher, even this
amount of money "is small enough to negotiate over rather than to
fight over." It represents only some 0.1 percent of Israel's
economy, with a GDP of some $80 billion/year in 1996. Such an
increased allocation of water to the Palestinians would represent
an ultimate reduction of some 8-16 percent of Israel's total fresh
water resources.
It is beyond the scope of this paper to predict the outcome of the
negotiations, but my own personal feeling is that it is in Israel's
interest to see to it that its Palestinian neighbors can live side
by side with it in peace and prosperity, with a sense that an
equitable and just peace has been established. Israel should be
interested to assure that the Palestinians have enough water, not
only to survive, but to thrive as good neighbors, with a sense of
well-being and security, stemming from a peace settlement that has
recognized their legitimate needs. This can be achieved by Israel
giving up some of its resources, but not at an unreasonable
price.
While providing a solution to the water conflicts in the
Palestinian-Israeli dispute, including that over the Mountain
Aquifer, is not a sufficient condition for peace, it is undoubtedly
a necessary condition. The major powers should help to broker the
peace process in the Middle East by sponsoring a Water-for-Peace
Plan with an assured major infusion of funds for the benefit of all
the partners. A bold and generous Water-for-Peace Plan not only
removes an important obstacle on the path to peace, but can provide
a real motivation for peace which will enable the partners to the
dispute to solve urgent problems for the social welfare and
economic benefit of all.
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