- Palestinian-Israeli crossfire on

August 5, 2002 Edition 29

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>< “Rights cannot be dismissed” - by Ghassan Khatib
It is simply not possible to solve one aspect such as water, while excluding others.

>< “Israel as a regional water supplier” - by Yossi Alpher
How should Israel exploit its advantage to encourage regional stability?

>< “The question of “Prior Use”” - by Rami Shehadeh
The disparities remain blatantly inequitable and unreasonable.

>< “If only there were quiet, the Palestinians have numerous opportunities” -interview with Noah Kinarty
The plans are ready, but you can't build under fire.

Rights cannot be dismissed

by Ghassan Khatib

ALTHOUGH THE Palestinian-Israeli conflict has been dominated by ideology and politics, there are some very significant “side” issues that could very well maintain and prolong the conflict if they are not duly solved. One of these is economics and especially tourism, both of which tie directly to the problem of Jerusalem and its status. Another is the dispute over water, a rare regional commodity, and an issue tied significantly to the territorial component of the Palestinian-Israeli conflict.

Since the beginning of the Israeli occupation, access to water and the areas under which sit the main existing water reservoir have been an important guiding principle for Israel as it mapped out its settlement policy--and then later strategized over its negotiations policy in official or non-official talks. Certainly, maintaining access over water reserves has also been a factor in determining the map for “unilateral withdrawal” that some Israelis believe is a way out of the current conflict. Palestinians, on the other hand, believe that they have the right to regain not only the territories occupied in 1967 according to international law, but also the water resources in those areas, again in accordance with international law.

Palestinians, too, raise another dimension to the water problem that stands apart from the need to solve the problem of equitable access to water according to the existing body of international law that addresses water issues. That other, even more pressing dimension is the current grave and damaging inequality in water use rights. Israel’s occupation of the East Bank and Gaza has allowed it to control the management and use of water in such a way that independent studies show that Israelis, including illegal settlers in the occupied territories, use 20 times more water than Palestinians in the occupied territories are allowed to use. That adds to the suffering of the Palestinian people and can only be considered collective punishment by Israel in its attempt to slow down Palestinian development to facilitate its occupation. These policies are easily described as racist in origin.

Those who want to solve this conflict must understand that its complexity and multi-dimensional nature make it impossible to do so by singling out certain aspects--like security, for example--and making their resolution a precondition for talking about the other issues. Palestinian rights should be dealt with in a comprehensive manner, and in reciprocation, Israeli rights will be dealt with in totality.

It is simply not possible to solve one aspect such as water, while excluding others. Take territory or economics or settlements--all are tied inextricably to access to water. That is why the only possible approach to solving this conflict once and for all is the most simple and most legal: to end the Israeli occupation and its control over all aspects of Palestinian daily life, including their access to water. If the water is shared in full accordance with international law, Israel can expect to demand and receive a comprehensive full peace, security and prosperity.-Published 2/8/02©

Ghassan Khatib is minister of labor in the new Palestinian Authority cabinet. He has served for many years as a political analyst and media contact.

Israel as a regional water supplier

by Yossi Alpher

Israel and its neighbors--West Bank Palestinians, Jordan and southern Syria--are all increasingly thirsty for new sources of water. Israel has two distinct advantages over these neighbors: a well situated Mediterranean coastline where desalination plants could be located, and considerable technological know-how in the field of desalination and water transport.

Israel's Arab neighbors have a number of longstanding demands regarding rectification of alleged past injustices in the use and distribution of existing water resources like Lake Kinneret (the Sea of Galilee) and the Yarkon-Taninim (Western Samarian) Aquifer. Understandably, these are disputed by Israel, which can make a strong case under international law for its historic rights and its use of the water.

But even if Israel were to accept the Arab case and redivide its existing resources, the resultant increase in water supply to the Arabs would be so small, and the pace of population growth in the region so fast, that both Israel and its neighbors would continue to require desalinated water. The question is, how should Israel exploit its advantage with regard to desalination in order to encourage regional stability?

There are two possibilities. One is for Israel to take the initiative and build, with international financing that it should be able to recruit, a huge desalination reserve of, say, 500 million cubic meters annually (Israel has currently begun construction of a first coastal desalination plant for its own use, that will produce 50 million cubic meters). We could then offer our neighbors, on advantageous terms that could constitute an Israeli contribution to their economies, ample water supplies. Conceivably we could recruit international participation in subsidizing the price of desalinated water for Arab consumers.

Obviously, supply of the water would require the laying of considerable pipeline infrastructure, and Syria and possibly the Palestinians would balk at the very notion of such cooperation prior to ending their conflict with Israel. But the availability of relatively cheap and abundant desalinated water could, if managed well, constitute an added incentive toward making peace (in Syria's case), reducing violence (in the Palestinians' case), and improving relations (in Jordan's case).

Would this arrangement make our Arab neighbors more dependent on Israel, and is this a good thing? Some would argue that, even assuming the existence of ironclad international guarantees to assure the Arabs that Israel would never turn off the spigot at a time of crisis in order to exert pressure, Arab dependency on our water would ensure improved relations. Others might argue that in any case Israel would be forbidden by the rules of basic humane behavior (and by international pressure) from ever reducing the flow of water, hence the potential Arab consumer countries, Syria, Jordan and Palestine (the West Bank; Gaza could have its own desalination capacity) could at some point in the future, if relations deteriorate, afford to take the water and refuse to pay, thereby conceivably further degrading rather than improving relations.

This danger points to a third option: encouraging the international community to build, along Israel's coastline and on land donated by Israel, the requisite water desalination capacity, and to undertake to supply the water to Israel's Arab neighbors in a manner that is independent, both commercially and diplomatically, from any connection to Israel. In this way at least some of the advantages of water interdependence might accrue to Israel, thereby enhancing regional stability, while it could avoid having to deal with the "headache" of ensuring timely payment of Arab water bills. On the other hand, one can conceive here of a scenario whereby the international community supplies the water and the Arab countries accept it gladly, yet they then proceed to ignore Israel's role and maintain, at best, a cold peace with Jerusalem, thereby effectively neutralizing Israel's gesture.

Underlying all of these possibilities is the fact that Israel, despite all its current economic woes and the ongoing conflict with the Palestinians, is far better equipped than its neighbors to deal with its growing water shortage and its water requirements for the future. Once active peace talks are resumed, it should ensure that water is not allowed to work to its disadvantage, that water solutions contribute to regional peace and integration, and that the international community's general readiness to assist the region in solving its water problems is integrated into the overall fabric of peace.-Published 5/8/02©

Yossi Alpher is an Israeli strategic analyst. He is former Director of the Jaffee Center for Strategic Studies, Tel Aviv University.

The question of “Prior Use”

by Rami Shehadeh

The Middle East is one of the world’s most water-stressed regions, and the deteriorating quality and limited capacity of the region’s water resources are of paramount importance to all residents of the area.

Since much of the freshwater that is available in Israel and the Palestinian Occupied Territories comes from shared sources i.e., groundwater and surface water, water has been a subject of several Israeli-Palestinian agreements namely: the Declaration of Principles of 1993, the Gaza-Jericho Accord of 1995, and the Interim Agreement on the West Bank and the Gaza Strip of 1995 (hereinafter “Interim Agreement”). As a number of issues related to water were not resolved definitively in the Interim Agreement, water was listed as one of the main subjects to be negotiated in the permanent status negotiations.

Until the Interim Agreement, the water resources of the Occupied Territories were under the direct control of the Israeli military government, which in turn was guided in its policies by domestic Israeli government institutions, including the Water Commission. The Commission drastically limited Palestinian access to and use of freshwater from aquifers in the Occupied Territories. In contrast, however, it has allowed illegal Israeli settlements in the Occupied Territories vastly greater consumption of the same water sources. On average, when including Israelis living inside the Green Line, Israelis consume more than four times as much water as Palestinians on a per capita basis.

Under the Interim Agreement, the situation did not improve much for the Palestinians. Israel retains veto power over Palestinian development not only of groundwater that is shared with Israel but also that which is wholly Palestinian, in the sense that it does not flow from the territories into Israel. The disparities remain blatantly inequitable and unreasonable.

Israel does not attempt to justify its disproportionate share of the international water resources such as the Mountain Aquifer and the Jordan River Basin under the doctrine of equitable utilization. Instead, to the extent that Israel has attempted to justify its conduct on legal grounds at all, it has relied on its prior use of the water resources. The prior use or historic use doctrine states that a pattern of use of water in an international watercourse gives rise to a right to such use. This argument is baseless for two fundamental reasons:

One of the most fundamental principles of international law is that no benefit can be derived from an illegal act (ex injuria non oritur jus). Israel’s belligerent occupation of the West Bank and Gaza since 1967 is unlawful. Even if its occupation were not unlawful, Israel’s conduct in administering the Occupied Territories and exploiting Palestinian natural resources violates its obligations as an occupying power under the law of “belligerent occupation” (the 1907 Hague Regulations and the Fourth Geneva Convention of 1949), and also violates the principle of Permanent Sovereignty over Natural Resources.

With regard to water from the Jordan River, Israel’s unlawful military actions have enabled it to appropriate more than an equitable share of the waters of the Jordan River basin. Its occupation of the Golan Heights and, until recently, the “security zone” in southern Lebanon, contrary to United Nations Security Council resolutions, have resulted in Israeli control of many of the headwaters of the Jordan River. Furthermore, Israel expelled Palestinians from the area of the West Bank bordering the Jordan River, destroyed Palestinian wells (including wells built pre-1967), denied access by Palestinians to Jordan River water resources, and established settlements (most of which are agricultural) in the strip of land bordering the River, all in violation of the law of belligerent occupation and laws on the use of international watercourses. These unlawful actions have enabled Israel to divert water, drill wells, and otherwise appropriate water to which it would otherwise not have been entitled. International law does not permit Israel to profit from its illegal actions.

As mentioned, Israel has defended its present allocation of water on the ground of “prior use.” But if prior use conferred absolute rights, as Israel appears to claim, states such as Turkey and the United States would have been sharply restricted in the development of their international watercourses, in particular the Euphrates and the Rio Grande respectively, and Ethiopia would be virtually precluded from any development of the Blue Nile. But this is not the law.

According to international law, the fundamental principle is that international watercourses must be used in an equitable manner. Article 6 of the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, (1997) included “existing” uses as one of the factors that may be relevant in determining equitable utilization--i.e. in the present case, in arriving at an equitable apportionment of waters shared between Palestine and Israel. Although “existing” uses may also be “prior” uses, neither of these circumstances is automatically entitled to a particular weight in the balancing process that is employed to arrive at an equitable apportionment.

For the above-mentioned reasons, the present allocation of water from sources shared by Israel and the Palestinians violates the rules of international law. Israel’s use is inequitable because it cannot be justified according to the factors relevant to equitable and reasonable utilization. The West Bank is the recharge source of much of Israel’s water (80-85 percent of rainwater entering into the shared aquifers). The Palestinian population in the Occupied Territories is more than half that of Israel, yet Israel permits Palestinians to consume much less water per capita than Israelis. In addition, Israel’s use is unreasonable because much of it is subsidized or otherwise wasteful, and because it has been accomplished largely through the forcible prevention of the Palestinians from gaining access to their rightful share.

If the Palestinian and Israeli people are going to live as “equal neighbors,” the principles of equity and equality must form part of the peace process itself. A peace agreement that is made at the further expense of the Palestinian people’s rights and needs will not achieve that result--on the contrary, it will only serve to strengthen the sense of injustice and national grievance among the Palestinian people, and would not therefore produce a meaningful, durable and sustainable peace

Rami Shehadeh is a Palestinian human rights activist and a legal advisor to the PLO Negotiations Affairs Department.

If only there were quiet, the Palestinians have numerous opportunities

an interview with Noah Kinarty

bitterlemons: What is your forecast regarding the water shortage in the Palestinian Authority?

Kinarty: The water shortage in Gaza is catastrophic. The quality of water is also catastrophic. In the Gaza Strip they need an additional 30 to 40 million cubic meters of water a year for drinking. Nothing will help but desalinating seawater or brackish water and building an advanced water system, and establishing a modern sewage system. We know where the desalination plant will be located, and American funds for construction have been allocated, including for a central distribution pipeline the length of the Strip. The plans are ready, but you can't build under fire. You don't even need peace, just a ceasefire. The cost to Palestinians (operation and maintenance costs, without capital return) will be 35-40 cents per cubic meter if the Americans build the installation as a grant.

bitterlemons: And in the West Bank?

Kinarty: South of Jerusalem there is a shortage of water, and many villages are not hooked up to water systems. In our extended talks with the Palestinians they were presented with proposals for increasing supply immediately: some 30 wells to be drilled in the area of the "nature reserve" transferred under the Wye agreement, which would supply 25 million cubic meters a year to the Hebron and Yatta regions. Here again, the drilling is not taking place due to the Intifada. The plans and permissions were delivered to the Palestinians in January 2001. The Americans have to drill the wells, which are deep and expensive and require peace and quiet. Israel is prepared to give all the technical support. There are additional reserves of water in the Judea area.

North of Jerusalem there are no more unexploited water sources and there is no solution but to bring desalinated water from the Mediterranean Sea. I have proposed that the international community build a desalination plant at Hadera with a supply pipeline to the northern West Bank. The Americans will build the facility and the additional donor countries perhaps will lay the distribution pipes for the Palestinians. Israel will allocate the land and give the international consortium the right of way for the pipeline. This solution supplies unlimited quantities of quality water; even the sewage created by using this water will be of an improved quality that is more suitable for purification and recycling for agriculture. In view of international involvement the Palestinians will have no fear of Israel stopping the flow due to an emergency situation, and no dependency on Israel. The cost will be about 50 cents per cubic meter, including delivery, on condition that the international community builds the installations as grants, compared to 50-60 cents the Palestinians pay today to Israel's Mekorot company.

bitterlemons: What is delaying this solution for the northern West Bank?

Kinarty: If the Palestinians say yes, the Americans are prepared to request the funds. With the Europeans it's more a matter of talk at this point. But there is no agreement with the Palestinians because some of them are still insisting on water rights from aquifers that in any case are empty and becoming saline. In other words, some of the Palestinians who deal with this issue are in the ideological phase, not the phase of pragmatic solutions.

bitterlemons: Can this desalination solution help Jordan too?

Kinarty: Yes. We can enlarge the facility at Hadera and extend the pipeline to Jordan.

bitterlemons: How do you relate to the proposal to import water from Turkey?

Kinarty: Importing from Turkey is still problematic because the use of oil tankers for transporting drinking water still has to be tested. If the experiments of a certain Israeli company succeed in producing alternative means of importing drinking water via the sea, we'll have another option. Water from Turkey for Jordan and the Palestinians will cost some 30 cents per cubic meter, less than the cost of desalinated water (without capital return). Perhaps for a period of time the Turks won't charge the Palestinians and Jordanians for the water, as aid to fellow Muslim countries.

bitterlemons: Can sewage recycling be solved the way water issues are dealt with?

Kinarty: Sewage purification and recycling and prevention of contamination of water supplies are no less important than water supply itself. The problems involved in operating sewage recycling plants are greater than managing water systems. So the international community will not only have to build these plants for the Palestinians as grants, but subsidize operations as well for several decades. We in Israel are most interested in sewage purification in the West Bank because of the flow down from there into our water sources. But recycling in Gaza is no less important.

bitterlemons: Finally, in view of the Intifada, what is the current status of cooperation on water issues between Israel and the Palestinians?

Kinarty: The cooperation framework set up between the two sides is a good one. It is holding firm even under fire. The commitment each side gave the other, to help one another even under difficult conditions is, in general, working. There are repairs, there is instruction, spare parts are delivered and water is distributed--all in the spirit of good will prevailing since the interim agreements.-Published 5/8/02©

Noah Kinarty was born and lives in Kibbutz Kineret, near Tiberias. He headed the Israeli water team in peace talks in 1992-6 and signed the water agreements with Jordan and the Palestinians. He participated in the peace talks with Syria and the Palestinians. He is currently Advisor to the Minister of Defense on Water Issues.

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