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close this bookHydropolitics along the Jordan River. Scarce Water and Its Impact on the Arab-Israeli Conflict (UNU, 1995, 272 pages)
close this folder3. Towards an interdisciplinary approach to water basin analysis and the resolution of international water disputes
close this folder3.3. Paradigms for analysis of international water conflicts
View the document(introduction...)
View the document3.3.1 Physical sciences and technology
View the document3.3.2 Law
View the document3.3.3 Political science
View the document3.3.4 Economics
View the document3.3.5 Game theory
View the document3.3.6 Alternative dispute resolution (ADR)

3.3.2 Law

Authors who have specifically addressed international water law include Caponera (1985), Cano (1982; 1989), and Bilder (1975), while Utton (1982), Hayton (1982), and Hayton and Utton (1989) have focused on the law of international aquifers.

What follows is a brief description of the current state of international water law, the legal ambiguities inherent to Jordan River hydropolitics, and some alternative approaches that others have taken to resolve similar disputes. One procedural note: the critique that follows is of the applicability and enforceability only of the international legal structure - not of treaties. It is argued that, while a legal code can offer general guidelines, it is precisely a treaty, born out of the process of conflict resolution, that offers an appropriate means for agreement.

International water law

The Charter of the United Nations stipulates that states in dispute have an obligation to "first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." Of the options presented, only "judicial settlement" refers specifically to law. According to Alheritière (1985), "states not uncommonly still prefer to bring their dispute to an ad hoc arbitral forum rather than settling it in well established courts." When one examines the painstakingly incremental movement of the international legal structure to grasp and incorporate hydrologic complexities, this lack of legal emphasis in conflict resolution is not surprising.

According to Cano (1989), international water law did not substantially begin to be formulated until after World War I. Before that time, human consumption, industrial waste, and diversion for irrigation, were not deemed major issues. Rivers were used primarily for navigation and log flotation, both of which were covered for Europe in the Congress of Vienna of 1815.

During this century, organs of international law tried to provide a framework for increasingly intense 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 provided 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 cites all of the factors that must be taken into account for "reasonable and equitable" use, including, but not limited to, the following (cited in Caponera 1985, 567; Housen-Couriel 1992, 5): (a) the basin's geography and the extent of the drainage area in the territory of each basin state; (b) the basin's hydrology, including the contribution of water by each basin state; (c) the climate affecting the basin; (d) past and existing utilizations of basin waters; (e) economic and social needs of the basin states; (f) population dependent on the waters of the basin within each basin state; (g) comparative costs of alternative means of satisfying (e); (h) availability of other resources; (i) the avoidance of unnecessary waste in the use of the waters; (j) the practicability of compensation as a means of adjusting conflicts among users; (k) the degree to which a state's needs may be satisfied, without causing substantial injury to a co-basin state. There is no hierarchy to the above 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 rights to "beneficial use" of water, rather than to water per se (Housen-Couriel 1992, 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" (Cano 1989). It is testimony to the difficulty of marrying legal and hydrologic intricacies that the Commission, despite an additional international call for codification at the UN Water Conference at Mar de Plata in 1977, has not yet completed its task. After 20 years and nine reports, only a few articles have been provisionally approved.

The final product, which also only establishes general principles for, for example, "equitable use and apportionment" and "prohibition of considerable, substantial, or appreciable harm," would not have the force of law until approved by the General Assembly (Falken-mark 1987; Solanes 1987). The general principles being codified include (after Caponera 1985):

  1. Common water resources are to be shared equitably between the states entitled to use them, with related corollaries of
  1. limited sovereignty,
  2. duty to cooperate in development, and
  3. protection of common resources.
  1. States are responsible for substantial transboundary injury originating in their respective territories.

The problems arise when attempts are made to apply this reasonable but vague language to specific water conflicts. According to Rogers (1991), there are at least five, often conflicting, doctrines for sharing water in international basins:

  1. Absolute sovereignty. A state has absolute rights to water flowing through its borders.
  2. Riparian rights. Any territory along a riverway has rights to a relatively unchanged river.
  3. Prior appropriation. "First in time, first in right."
  4. Optimum development of the river basin. The basin is considered a single hydrologic unit, and it is incumbent upon states to develop it accordingly.
  5. Reasonable share or equitable use. Provides rights dependent on some or all of the above criteria, but is difficult to interpret.

More locally to the region in question, both Talmudic and Islamic law each address water rights, the latter in somewhat more detail. Talmudic law mentions only surface water, and that only in the context of irrigation, providing that an upper riparian should have rights to divert for irrigation prior to downstream neighbours. Not surprisingly, given its roots in arid regions and in societies so dependent on wells and oases, the most sophisticated historical treatment of groundwater came out of Islamic law. The Islamic code grants ownership to the person who digs a well, provides a surrounding "prohibited area" to prevent drawdown, and obligates the owner to share domestic (although not irrigation) water with others (Hayton 1982). Bedouin code likewise provides for an order for watering at a well, with the largest family having first rights.

It should be noted that one aspect of water law in today's Middle East - the issue of ownership - is somewhat more clear within each nation than it is, for example, in the United States. In all of the countries riparian to the Jordan River, as well as in most of Europe, water within a nation's borders is nationalized. What users gain rights to is the use of water, not ownership of the water itself.

As might be imagined, issues of international groundwater have been especially perplexing. Before the Helsinki guidelines, international agreements referred only to specific wells and "in no event is there any manifestation that a whole international aquifer was intellectually comprehended, much less embraced by treaty" (Hayton 1981).

Since the Helsinki Agreement, which mentions "under-ground water" in passing, some progress has been made, particularly linking ground and surface water, and allowing for pollution control. Nevertheless, discussion of international groundwater still takes place "'on the frontier,' if not in no man's land" (Hayton 1981). Probably as a consequence, as of 1982, international courts have issued no decisions specifically on the question of groundwater (Utton 1982).

Even given a detailed law code and a more authoritative court, initial negotiations would still be required, or at least somewhat conciliatory relations would be necessary, between the states involved. The International Court of Justice refers to the following guidelines, in order of precedence, for its rulings (Cano 1989):

  1. The law of treaties and conventions ratified by governments,
  2. Customs,
  3. Generally accepted principles,
  4. Decision of the judiciary and doctrines of qualified authors.

Moreover, the Court can hear cases only if the parties involved consent.

To summarize, then, general guidelines, although not binding law, are the best that can be expected from the legal structure, for the following reasons (after Caponera [1985] and Cano [1989]):

  1. International law is founded on the consent of the nations that participate in the system. A state with pressing national interests can therefore disclaim the court's jurisdiction or findings.
  2. There is no superpower or supralegal authority interested in, or capable of, dictating and enforcing international law, except in the most extreme cases.
  3. Hydrologic complexities, which are site specific and often poorly understood, preclude the application of sweeping legal generalities.

The legal challenge 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 themselves, 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 United States' desire for "optimum development," and 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 through 1967, Syria and Lebanon began building a diversion of the Jordan headwaters, again claiming "absolute sovereignty," to thwart a downstream Israeli diversion that threatened Jordanian water supply. The Jordanians 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 (Naff and Matson 1984).

Complicating riparian positions even further is 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. As mentioned earlier, 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 that these territories were wrested from were not, themselves, legitimate rulers (El-Hind) 1990). Egypt was itself a military occupier of Gaza and only Britain and Pakistan recognized Jordan's annexation of the West Bank in 1950. Furthermore, it is pointed out that the water that 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 future allocation to the West Bank must come out of the other's share (Naff and Matson 1984).

RECOGNITION OF STATE SOVEREIGNTY.

As mentioned previously, international legal code is applicable only to states that adhere to a court's jurisdiction. This principle runs into two types of problems in the Jordan watershed:

  1. States. Except for Egypt, no Arab state has recognized Israel's right to exist. One reason given for collapse of the Johnston negotiations was that ratification would have implied recognition of Israel's legitimacy (Wishart 1990). Israel, in turn, does not recognize the national aspiration of Palestinians who, in the absence of sovereign territory, are relegated to observer status in most international forums.
  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, Israeli presence is not legally "occupation."

As seen, submission of the dispute over the Jordan River to the international legal system would strain the existing state of interpretation and enforcement well past its current limits.

Alternate legal venues: 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. They were created through direct or indirect agreements, negotiation, or mediation, even between hostile states.

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, and more than 280 treaties have been negotiated to resolve the inevitable water conflicts. Treaties are brought about either directly between the parties involved (ne gotiation) or with the help of a third party (mediation). A treaty, once ratified, has the force of law and is the highest precedent recognized by the International Court of Justice (Cano 1989).

Negotiating a treaty is often the first step in ongoing conflict resolution. Onethird of all international agreements contain compulsory dispute settlement clauses (Alheritière 1985). One method of providing a forum to resolve disputes is through the establishment of a river commission. For friendly nations, this process might take place directly, between only the parties involved. A good example is the Rhine River Commission, established in 1831 after a lengthy process dating back to 1785. The Commission, with representatives from six nations, provides consultation and technical assistance, although it can also undertake research and make non-binding recommendations. Commissions exist for the Danube, for US-Canadian joint waters, and for dozens of shared waterways throughout the Americas, Europe, and Africa (Caponera 1985).

If relations are less friendly, commissions can be established through the "good offices" and sponsorship of an interested third body. One example is the Indus River Treaty of 1960, which established the Permanent Indus Commission between India and Pakistan with heavy involvement of the World Bank (Caponera 1985). Under the terms of the treaty, the basin was divided and developed, giving each nation exclusive rights to its own tributaries. Any cooperative measure requires unanimity among the Commission members (Saliba 1968). Another example is the Committee for the Lower Mekong River, established in 1957 between Cambodia, Laos, Thailand, and Viet Nam, with close cooperation with the United Nations. Along with hydrologic and management achievements, the Committee deserves special mention for operating uninterruptedly since its inception, despite political differences and occasional armed conflict (Caponera 1985).

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. In this context, it is not surprising that most law schools in the United States now offer courses in environmental negotiation (Falkenmark 1987). 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 ADR strategies, as addressed in the following sections. Nevertheless, as Robert Hayton (1982), a professor of law himself, concludes, "just as war is too important to be left to the generals, water law is too important to be left to the lawyers."