Water in the Peace Process:
by Advocate Jitzchak P. Alster from Shimoni, Alster & Rasiel
Part I of this Article described the background of the issues surrounding water In the Middle East from the historical and legal perspective and portrayed in detail the provisions relating to water in the Jordan Israel Peace Treaty.
Part 2 of this Article will concentrate on the water issues between Israel and Syria and between Israel and the Palestinians. The factor common to both situations is that no final water agreement has been reached although with respect to the Palestinians the Parties have already entered into an interim agreement.
The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (the "Interim Agreement" or, as popularly known, the "Oslo ’B’ Agreement") which followed in sequence the Agreement on the Gaza Strip and the Jericho Area, has transferred some of the powers and responsibilities in the sphere of water and sewage in the West Bank to the Palestinians. In addition the Agreement contains a recognition of Palestinian water rights in the West Bank which will be negotiated in the permanent status negotiations and settled in the permanent Status Agreement relating to the various water resources. The Interim Agreement also contains specific provisions relating to the current and future uses of water by the Palestinians and established a strict enforcement mechanism over the quantum of current and future withdrawals from the groundwater aquifers.
As described in detail in Part I of this Article, the relations between Israel and Syria in the pre-1967 era deteriorated at times because of disputes over the control and utilization of water resources. This fact should not come as a surprise, as the 1949 Armistice Line between Israel and Syria was drawn partially along the Jordan River while the 1923 International Boundary (between the then French Mandates over Syria and Lebanon on the north and the east, and the then British Mandate over Israel to the south and the west) left the water resources on the west (i.e. the Israeli) side of the boundary by drawing the line east of and at a certain distance from the River. Whereas the 1923 International Border determined that the Jordan River, its tributaries the Dan and most of the Baniyas, the Huleh Lake as well as all of Lake Tiberias were to be on the Israeli side of the border. the Armistice Agreement provided that at some places the Armistice Lines would be along the Jordan River itself. Although at some places the Armistice demarcation did not follow the 1923 International Border, no Syrian troops were permitted west of the international border and no Israeli troops on its eastern side as the areas between the International Boundary and the Armistice Lines were designated as demilitarized zones.
Israel and Syria specifically stipulated in the Armistice Agreement that the Armistice Line should not be interpreted as having any relation whatsoever to ultimate territorial arrangements affecting Israel and Syria. Notwithstanding the above, between 1949 and 1967 Syria claimed riparian rights wherever it had access to the water, i.e. on certain parts between its formation at the confluence of the Dan, Hazbani and Baniyas southeast from the town of Kiryat Shemona and until north of Lake Tiberias.
With respect to Lake Tiberias itself, both the 1923 International Boundary demarcation as well as the 1949Armistice Line provided that the whole of the Lake was to be on the Israeli side of the lines and for that purpose the line was drawn 10 meters east from the high water line at the northeastern part of the Lake from the inlet of the Jordan River to a point north of Kibbutz Ein-Gev. While at times Syrian fishermen entered the Lake with their fishing boats, Syria never had any riparian status on Lake Tiberias.
The Golan Heights
The Golan Heights, as part of the Hermon geological formation, form the basis for a significant part of the sources of the Jordan River. This includes the Baniyas (Hermon), Wazani and Hazbani Rivers as well as various smaller tributaries, both perennial as well as seasonal ones, which flow directly into the Jordan River and into the Lake Tiberias.
The sovereignty over the Golan Heights has therefore not only the much publicized military significance but determines as well the physical control over a considerable part of Israel’s major surface water resources. The control over these resources has particular significance due to a number of factors. First and foremost, the physical control over these resources by Syria could enable their diversion and storage, as was indeed attempted by the Syrians in the 1960’s when Syria commenced works for the diversion of the Baniyas and the Wazani .2 Second, but not less important, the sovereignty over the Golan Heights determines the river basin rights of the Upper Part of the Jordan River. With Israeli control over the Golan Heights Israel is in fact the major basin country of the Upper Jordan River with Syria having no water interests on the Upper Jordan River System.3 A Syrian controlled Golan will place it as a basin state on sources of the Jordan River as well as a direct riparian on some its eastern tributanes. A border in the thalweg of the Jordan River will have Syria as a direct riparian on the Jordan River itself.
The Yarmouk River
The Yarmouk River presents a unique situation. The River borders Syria, Jordan and Israel but has never been the subject of a signed basin agreement between all of the riparians. Absent direct relations between Israel and Syria separate agreements were concluded between Israel and Jordan on the one hand and between Jordan and Syria on the other. Syria and Jordan concluded bilateral agreements in 1953 and in 1987 on the damming of the Yarmouk River and the utilization of the river waters stored in the dam as well as on the utilization of upstream tributaries wells and springs. The Peace Treaty between Israel and Jordan contains specific provisions on water allocations between the Parties .4
The sources of the Yarmouk River include a number of tributaries in Jordan and Syria with the majority of these sources located in Syria. The Yarmouk initially forms the border between Jordan and Syria until the tripartite border (Israel, Jordan, Syria) at El-Hamma (Hamat Gader) south-east of Lake Tiberias, and forms, from that point, westward and downstream, the border between Israel and Jordan until the Yarmouk’s confluence with the Jordan River at Naharayim.
The EI-Hamma area and westward until a point near the village of Zemach at the southern end of Lake Tiberias, also known as the El-Hamma enclave, was designated a demilitarized zone in accordance with the terms of the 1949 Armistice Agreement between Israel and Syria as it was between the Tripartite International Boundary at El-Hamma on the east and the Armistice Line on the west. No Syrian forces were permitted in this demilitarized zone and the enclave was to be under Israeli administrative control. In fact parts of the enclave were taken by force and under Syrian Army control, in contravention of the Armistice Agreement of 1949, until the six-day war of 1967 when Israel took possession of the Golan Heights.
The Syrian-Jordanian Agreement of 1953 provided in its pertinent part the framework for the construction of a dam on the Yarmouk River at a site near to Maquarin on the JordanSyrian border east of El-Hamma, which allows for the catching of the upstream tributaries of the Yarmouk River with the exception of the waters of the Roqad which flows into the Yarmouk River west of the proposed dam site. In addition, the 1953 agreement provided for a division of waters between Jordan and Syria for the utilization of springs and wells as well as for the construction of Syrian dams on the various upstream tributaries of the Yarmouk River. In fact the part of the Agreement relating to the construction of the Maquarin Dam was never fulfilled.
In a massive economic development plan initiated by Syria in the early 1980’s a large number of dams and reservoirs were constructed by Syria on the tributaries of the Yarmouk River thereby reducing the base flow of the River, well in excess of the quantities permitted by the 1953 Agreement. As a consequence thereof the waters in the Yarmouk River available for potential downstream utilization were reduced significantly. Following contacts between the Syrians and the Jordanians a second agreement on the Yarmouk River was concluded in 1987. The second Agreement also called for the construction of a dam at Maquarin, called the Unity Dam, albeit with a reduced storage capacity resulting from the Syrian development plans. The Agreement also provided for the utilization of wells and springs and permitted the construction of dams on the tributaries of the River. The Maquarin Dam has not been constructed inter alia for lack of international financing.5
The Jordan-Israel Peace Treaty makes no reference to the Syrian water uses and solely regulates the water uses between Israel and Jordan. However, any agreement between Jordan and Syria on the Yarmouk, which are the upstream users of the River, will have to take into account, at a minimum, Israel’s rights as a downstream riparian on the Yarmouk River and is subject to the terms of the Jordan-Israel Peace Treaty which stipulates that artificial changes in the Yarmouk River can be made only by mutual agreement.
No final settlement regarding water has been reached between Israel and the Palestinians. As mentioned in the first part of this Article, the groundwater resources west of the Jordan River serve Israel as well as the Palestinian population of the West Bank. In this context two aquifers are to be mentioned:
a. The Mountain Aquifer, also known as the Yarkon-Taninim Aquifer which extends beneath the western part of the West Bank and the Coastal Area and has its natural outlets at the Rosh Ha’ayin and Taninim Springs;
b. The North-East (Shechem-Gilbo’a) Aquifer which extends from the Shechem (Nablus) area and north-east toward the Gilbo’a Mountain range and has its natural outlets in the Yizrael Valley.
The commonality of these two aquifers is the fact that part of their catchment areas are in the Judea-Samaria (West Bank) region and their outlets in pre-1967 Israel. Consequently any additional wells in or withdrawals from these aquifers in the mountainous regions is likely to reduce the quantity of water flowing at the natural outlets. Unsupervised increase of well drillings and subsequent withdrawals could seriously jeopardize the ability of the downstream water users to withdraw water hitherto used by them. An arrangement had therefore to be found whereby water needs in the regions under Palestinian control would be satisfied albeit without harming the Israeli uses with the understanding that most known water resources are fully utilized. The experience in Gaza has been that numerous unauthorized water drillings have taken place since the Israeli withdrawal causing harm to the groundwater aquifer of Gaza. The difference between Gaza and the West Bank is that overutilization of the Gaza Aquifer has effects on the Gazan users only whereas overutilization of the Mountain and North-East Aquifers will harm the lower-end users in Israel.
The discussions and agreements between Israel and the Palestinians on the usage of groundwaters in the areas under control of the Palestinian Authority have to be viewed against this factual background.
The Gaza-Jericho Agreement
The Agreement regarding the Gaza Strip and the Jericho region was concluded in Cairo on May 4, 1994.
The arrangements regarding water issues in Gaza and Jericho are relatively straightforward. The Agreement provides that all water and sewage systems and resources in the Gaza Strip and the Jericho Area serving the Palestinians shall be operated, managed and developed (including drilling) by the Palestinian Authority in a manner which shall prevent any harm to the resources. The Israeli Settlements and Military Installations shall continue to be served by the Israeli water company, Mekorot. Water to be supplied by Mekorot shall be paid for by the Palestinians and specific provisions therefor were concluded.
Since utilization of the Gaza groundwaters apparently does not affect groundwaters used by Israel no specific arrangements regarding the Gaza groundwaters were required. Groundwaters in Gaza are also relatively easily accessible because of the high water tables in the region. A yielding borehole can be dug practically overnight and does not require sophisticated equipment for operation. The media has reported that since the transfer of authority in Gaza hundreds of private, unauthorized, wells have been dug by the Palestinian population, causing thereby a reduction in the quantities of water available for consumption as well as a deterioration of the overall water quality due to the salinization of the wells.
In Jericho, the Palestinians obtained the right to utilize the local springs, conduits and wells which had also prior thereto served the town. Since these springs, like the Gaza groundwaters are at the lower end of the Aquifer, the utilization of these spring waters is likely not to affect other users.
The Interim Agreement
In the negotiations leading to the Interim Agreement (the socalled "Oslo ’B’ Agreement"), the Parties sought a balance between principles and practicalities. The questions on the negotiating table apparently dealt with water rights in the West Bank as well as with the satisfying additional water needs of the Palestinians. They dealt with strictly controlling the usage of water as well as with additional quantities of drinking water to be supplied to the Palestinians. Israel was apparently also concerned that the Gaza experience of unauthorized water withdrawals should not repeat itself, since such could affect the Israeli usage.
The result of the deliberations is recorded in the Interim Agreement.
The arrangement regarding water in the Interim Agreement is based on the following three principles, (1) an Israeli recognition of Palestinian Water Rights in the West Bank which is to be negotiated in the permanent status negotiations and settled in the Permanent Status Agreement relating to the various water resources, (2) a joint recognition that there is a need to develop additional water for various uses and (3) an agreement to coordinate the management of water and sewage resources and systems in the West Bank with the formation of bodies to execute such coordination.
In the first principle Israel "recognizes the Palestinian water rights in the West Bank." The principle, however, continues and provides that "These will be negotiated in the permanent status negotiations and settled in the Permanent Status Agreement relating to the various water resources." This section seems an obvious compromise between the Palestinian desire to obtain Israel’s political recognition of its water rights, on the one hand, and Israel’s position concerning these waters, which in addition to the general principle regarding the legal status of the groundwater, could have far-reaching practical negative effects on Israel’s utilization of its groundwater resources. The first principle will, together with the recognition embodied in the second principle that there is a need to develop additional water resources for various uses, provide the framework for the permanent status negotiations in which the various water resources are likely to feature high on the priority list.
In the second principle Israel and the Palestinians recognize that additional water has to be developed for both of them. This principle recognizes that the currently available water resources are not sufficient for both parties and that additional waters for both of them are to be derived from new, hitherto undeveloped, sources.
The third principle acknowledges the interdependence of the water and sewage resources in the West Bank between Israel, Israeli users and the Palestinians and provides that coordinated management of water resources and sewage is required. The third principle further details a number of important elements of such coordination including the maintaining of existing quantities of utilization. The quantities of the existing extractions, utilizations and estimated potential of the three aquifers (Eastern Aquifer, North-Eastern Aquifer and the Yarkon-Taninim Aquifer) are specified in a separate schedule, part of the Interim Agreement.
Transfer of Authority
Israel undertook to transfer to the Palestinians the powers and responsibilities in the sphere of water and sewage related solely to the Palestinians hitherto held by the Israeli military government and the Civil Administration. These powers and responsibilities do not include issues which will be negotiated in the permanent status negotiations. It should be noted however that the powers and responsibilities are subject to the rights afforded to the Palestinians pursuant to the Interim Agreement. This will include, inter alia, the quantities which may be extracted and which are listed in a separate schedule as annual average quantities.
The Parties agreed that the future needs of the Palestinians in the West Bank are estimated to be 70-80 MCM. The Parties further agreed that the immediate need for fresh water for domestic use was 28.6 MCM and agreed to make the said quantity available during the interim period by specifying in detail the ways and means by which such be accomplished. Thus, Israel agreed, inter alia, to provide to the Palestinians additional supplies of water mainly for some of the towns in the West Bank and Gaza as well as to drill an additional well in the Jenin Area. The Palestinians took upon themselves to drill a well in the Nablus area and to develop additional resources from the Eastern Aquifer. Any water purchased is to be paid for at the full real cost to the supplier.
Joint Water Committee
A Joint Water Committee ("JWC" entrusted with the implementation of the water provisions of the Interim Agreement was established by the Parties. The JWC deals inter alia with the coordinated management of water resources while maintaining the existing utilization of the water resources (which was specified numerically in a separate schedule), and taking into consideration the quantities of additional waters for the Palestinians as agreed. The JWC deals also with the protection of the water and sewage resources and with the overseeing of the supervision and enforcement mechanism as well as with other functions relating to water and sewage. Thus, for example, the JWC has to approve all licensing and or drilling of new wells as well as the increase of extraction from existing water resources.
Supervision and Enforcement
The enforcement of the water provisions of the Interim Agreement has been the subject of extensive provisions.
Pursuant to a specific Schedule to the Interim Agreement the parties agreed to establish Joint Supervision and Enforcement Teams (JSET), each composed of at least two representatives of each side to monitor, supervise, enforce and rectify the implementation of the water provisions of the Interim Agreement concerning, inter alia, such matters as unauthorized drillings, unauthorized connections to the supply system and water uses. The JSETs were granted free and unrestricted access to all water systems, including privately owned ones, for the fulfillment of their functions.
1 See also Prof. Moshe Braver, Israel’s Boundaries, Tel Aviv 1988.
2 The Syrian plan called for the diversion of these rivers across the Golan Heights into a storage dam on the Yarmouk River at Muheibe.
3 Since Syria controls a part of the catchment area of the Yarmouk River it is an upstream riparian on the Yarmouk River.
4 See part I of this Article, Justice, Issue 9, P. 11.
5 The media reported in late August 1996 that the Jordan-Syrian Water Committee had resolved to further the Unity Dam Project.
Advocate Alster is a partner in the Tel-Aviv law firm of Landau, Alster, Shimoni & Co. and is a consultant to the Water Commission, as such he serves as legal advisor to the Israeli delegation to the Israel - Jordan Joint Water Committee. Advocate Alster serves as well as the Legal Expert to the EU Water Resources Management and Agricultural Productivity (WARMAP) Program in the Central Asian Republics. The views expressed in this Article are the author’s and do not necessarily represent the views of the Government of Israel. The author wishes to express his gratitude to Mr. Moshe Yizraeli for his valuable comments to a draft of this article.
Originally published in JUSTICE - The International Association of Jewish Lawyers and Jurists, No. 10, September 1996.
© All rights reserved