|Central Eurasian Water Crisis: Caspian, Aral, and Dead Seas (UNU, 1998, 203 pages)|
|Part IV: The Dead Sea|
|10. Principles for confidence-building measures in the Jordan River watershed|
One problem at the heart of Middle East water conflicts is the fact that there is no internationally accepted definition of water-sharing equity. International water law is ambiguous and often contradictory, and no mechanism exists to enforce principles that are agreed upon.
According to Cano (1989), international water law did not begin to formulate substantially until after World War I. Since that time, organs of international law have tried to provide a framework for increasingly intensive water use. The concept of a "drainage basin," for example, was accepted by the International Law Association in the Helsinki Rules of 1966, which also provides guidelines for "reasonable and equitable" sharing of a common waterway (Caponera, 1985). Article IV of the Helsinki Rules describes the overriding principle.
Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.
Article V lists no fewer than 11 factors that must be taken into account in defining what is "reasonable and equitable."4 There is no hierarchy to these components of "reasonable use." Rather, they are to be considered as a whole. One important shift in legal thinking in the Helsinki Rules is that they address the right to "beneficial use" of water, rather than to water per se (Housen-Couriel, 1992, p. 5).
The International Law Commission, a body of the United Nations, was directed by the General Assembly in 1970 to study "Codification of the Law on Water Courses for Purposes Other Than Navigation." It is testimony to the difficulty of marrying legal and hydrologic intricacies that the International Law Commission, despite an additional call for codification at the UN Water Conference at Mar de Plata, Argentina, in 1977, has not yet completed its task. After 20 years and 9 reports, only several articles have been provisionally approved. And, once the details are worked through, the principles would not have the force of law until approved by the UN General Assembly (Solanes, 1987). Even then, cases are heard by the International Court of Justice only with the consent of the parties involved; no practical enforcement mechanism exists to back up the Court's findings, except in the most extreme cases. A state with pressing national interests can, therefore, disclaim entirely the Court's jurisdiction or findings (Caponera, 1985; Cano, 1989).
Treaties and river commissions
In contrast to the development and application of a general law code, treaties and river commissions have been established and perpetuated for water systems throughout the world. According to Rogers (1991) there are more than 200 river basins shared by two or more countries. This accounts for more than 50 per cent of the land area of the earth. More than 280 treaties have been negotiated to resolve these trans-boundary water conflicts. Treaties are brought about either directly between the parties involved, i.e. by negotiation, or with the help of a third party, i.e. by mediation. Once ratified, a treaty has the force of law and is the highest precedent recognized by the International Court of Justice (Cano, 1989).
Treaties and river commissions have reached a certain level of success, probably because they fill precisely the gaps left in generalized international water law. They address only local conditions and incorporate the vested interests of the specific parties in conflict. The initial process still requires a certain amount of good will on both sides or, barring that, particularly strong encouragement from a third party. The challenge is to get the parties together initially and, once there, to induce ongoing cooperation. This is a process best served by alternative dispute resolution strategies, as addressed in the following sections. But, as professor of law Robert Hayton concludes, "just as war is too important to be left to the generals, water law is too important to be left to the lawyers" (1982, p. 132).
The legal challenges of Jordan River hydropolitics
Shifting riparian positions
Given the difficulty of defining the rights of riparians in international law, one can imagine the compounded complications of applying such a code where the riparian positions, and resulting legal claims, continue to shift over time. Lebanon, Syria, and Jordan were all upper riparians between 1948 and 1967, and their corresponding legal claim, therefore, was mostly of "absolute sovereignty" of the Jordan River. This conflicted, during the Johnston negotiations (1953-1955), with the US desire for "optimum development" and with the Israeli claim to its "riparian rights." Because Jordan was somewhat restrained, being also a lower riparian further downstream, a compromise Arab claim was of rights to water allocation proportional to a territory's contribution to its source (Lowi, 1985).
From 1964 to 1967, Syria and Lebanon began building a diversion of the Jordan headwaters, again claiming "absolute sovereignty," to thwart a downstream Israeli diversion that threatened the Jordanian water supply. Jordan challenged the Israeli plan to move water out of-basin, arguing that it was entitled to the river's "absolute integrity" and that first priority should be given to in-basin uses (Naff and Matson, 1984). After 1967, Israel became the upper, and predominant, riparian and moved towards a claim of "absolute sovereignty," although remaining, for the most part, within the confines of the (unratified) Johnston allocations.
Complicating riparian positions even further has been the unresolved issue of groundwater. Israel currently receives about 30 per cent of its water budget from aquifers that recharge in the West Bank. Ownership and rights to this water are in conflict, with Israel claiming "prior appropriation," limiting Palestinian groundwater development in the West Bank. Palestinians have objected to this increasing control. Legal arguments often refer, at least in part, to the Fourth Geneva Convention's discussion of territories under military occupation (see, for example, Dillman, 1989; El-Hindi, 1990). In principle, it is argued, the resources of occupied territory cannot be exported to the benefit of the occupying power. Israeli authorities reject these arguments, usually claiming that the Convention is not applicable to the West Bank or Gaza because the powers these territories were wrested from were not, themselves, legitimate rulers. Egypt was itself a military occupier of Gaza and only Britain and Pakistan recognized Jordan's 1950 annexation of the West Bank. Also, it is pointed out that the water Israel uses is not being exported but rather flows naturally seaward, and, because Israel has been pumping that water since 1955, it has "prior appropriation" rights to the water. Both Israel and Jordan insist that any further allocation to the West Bank must come out of the other's share.
Recognition of state sovereignty
As mentioned previously, an international legal code is applicable only to states that adhere to a court's jurisdiction. This principle, however, runs into two types of problems in the Jordan watershed:
1. States. Arab state recognition of Israel's
right to exist has come only recently. One reason given for the collapse of the
Johnston negotiations was that ratification would have implied recognition of
Israel's legitimacy (Wishart, 1990). Israel, in turn, has not, until recently,
recognized the national aspiration of Palestinians, who, in the absence of
sovereign territory, have been relegated to observer status in most
2. Jurisdiction. As mentioned above, Palestinians have claimed that much of Israeli action on the West Bank, including control of water resources, violates the Geneva Convention protecting civilians under military occupation (Ataov, 1981). Israel rejects the applicability of the Convention to these territories, claiming that, since Jordanian annexation of the West Bank in 1950 was not widely recognized in the international community, the Israeli presence is, thus, not legally "occupation."
Thus, submission of the dispute over the Jordan River to the international legal system would strain existing interpretation and enforcement well past their current limits.