Israeli-Palestinian Water Rights

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The Israeli-Palestinian bilateral negotiations in the 1990s resulted in three signed agreements that related, inter alia, to water: the Declaration of Principles of September 1993; the Cairo Agreement of May 1994 (Oslo I); and the Interim Agreement of September 1995 (Oslo II).[1] Oslo II included Article 40 – 'Water and Sewage'.[2] These agreements, like all agreements relating to the Oslo process were in favor of Israel and in prejudice to all Palestinian rights, including water rights. First, they neglected the Palestinian water rights in the Jordan River which is a trans-boundary river,[3] and were geographically limited to only those parts of the Mountain Aquifer that underlie the West Bank, while the other water resources in the OPT remained under unilateral Israeli management.[4] Second, the agreements were about the Palestinian use of water inside the West Bank and gave Israel the veto over any water development projects through the Joint Water Committee (JWC),[5] which was established according to the Oslo II to implement the agreement and govern management of aquifers shared by Israel and Palestinians.[6] Third, although they recognized the Palestinian water rights, the terms were broad and there was no elaboration on the nature of these rights or the principles governing the rights and obligations of both sides.[7] While Israel has in principle recognized Palestinian water rights, its conduct suggests otherwise, and the Oslo Accords did not result in greater access for the Palestinians to the water resources of the OPT.[8] The agreements stipulated that Israel would provide an additional 70-80 MCM/Y in order to satisfy 'future Palestinian needs'.[9] However, of this quantity which was supposed to be provided by Israel, only 28.6 MCM/Y has been received by Palestinians, who were allowed to extract this quantity from the eastern aquifer over which Israel has no claim.[10] In fact, Palestinian water supplies have dropped from 118 MCM/Y prior to the Oslo Accords to 98 MCM/Y in 2010.[11] Water is inherent in each issue to be discussed in the permanent status negotiations, which were supposed to be completed by May 1999, be it borders, settlements, Jerusalem or the viability of the Palestinian state.[12] The Oslo process did not come close to fulfilling Palestinian water rights and needs or meeting the Palestinian call for the implementation of international law to solve such a dispute.[13] They even perpetuated Israel's control over water resources in the OPT.

2.2.1. The Role of the JWC

Under article 40 of Oslo II, which pertains to water and sewage management in the West Bank, any water project implemented in the West Bank must receive prior unanimous approval from the Joint Water Committee (JWC), which comprises representatives of both the Israeli Water Authority and the Palestinian Authority (PA).[14] The JWC's role is to implement Article 40, including water allocation and project appraisal, but only in the West Bank.[15] The PA must obtain the JWC's consent even for projects responding to emergency water needs.[16] Israel, through the JWC, not only refuses projects on a technical level but also uses its power of veto as a political bargaining chip.[17] In order to avoid the Israel’s veto, the PA must often compromise its core principles and long-term interests.[18] When seeking to acquire approval for projects that are necessary to mitigate ongoing and imminent humanitarian crises, the PA must frequently agree to service illegal Israeli settlements in the West Bank.[19] For instance, in 1998, the Palestinian Water Authority received funding from KfW (the German government-owned development bank) to build a wastewater treatment plant in the Salfit Governorate.[20] The JWC made approval of the project conditional upon connecting the largest West Bank settlement, 'Ariel', to the treatment plant.[21] The Palestinian Water Authority rejected any act recognizing settlements, so the project was frozen and the donor withdrew.[22] Israel has frustrated Palestinian water sector development in the West Bank through its de facto veto authority over all West Bank water projects by the JWC and the Civil Administration.[23] Whilst theoretically Israelis and Palestinians are given equal rights and responsibilities under the JWC, the JWC de facto discriminates against Palestinians.[24] This is primarily because the Palestinians are the party that needs major infrastructure development in the water and sanitation sector that has been badly neglected by the occupation authorities since 1967.[25] As of July 2008, 145 Palestinian projects were pending the JWC's approval, including projects to rehabilitate old water supply networks, build new pipelines to connect communities un-served by the water network, and build cisterns for rainwater harvesting.[26] All proposed water projects in the West Bank must receive approval from the Israeli representatives in the JWC, while there is no analogous check on projects proposed by Israeli authorities within that country’s own borders or inside the West Bank although article 40 requires Israeli authorities and settlements in the West Bank to obtain prior approval from the JWC.[27] In addition, the absence of a dispute resolution mechanism leaves the Palestinians without recourse to challenge JWC's rejection of their proposals.[28] Israel's control of extraction of water from the shared aquifers is not limited to its veto power in the JWC over new drillings.[29] In addition to receiving the JWC's approval, all proposed water projects that could impact Area C (a geographic region encompassing roughly sixty percent of the West Bank which is under full Israeli control according to the Oslo Accords) must obtain the Israeli Civil Administration's approval.[30] Obtaining the Civil Administration's approval entails a lengthy and protracted bureaucratic process and many Palestinian applications are rejected.[31] In many cases, project proposals receive approval from the JWC, but they are rejected by the Civil Administration as presenting a 'security risk', among other reasons.[32] Even if the Civil Administration agrees to authorize a proposal, it may require certain modifications of the original plan, which the PA must then re-submit for approval by the JWC.[33] When projects may ultimately win approval from both the JWC and Civil Administration, the lengthy process and procedural barriers obstruct and delay development of the Palestinian water sector in the West Bank.[34] Of the 236 projects overall approved by the JWC 1996-2008, 151 have been implemented.[35] Israel wants the JWC to continue as a permanent institution. It wants to force the Palestinians through the JWC's measures to reduce agricultural water, to stop drilling additional wells, and not to impact the current Israeli utilization of water.[36] In conclusion, the mechanism created by Oslo II in the form of the JWC has perpetuated Israel's exclusive control over the water resources of the West Bank, and limited Palestinian access and ability to develop new water projects.[37] In reality, the Oslo II water regime maintained of Israel’s exclusive control over e water resources in the OPT.[38] The Palestinians are systematically denied building and/or drilling permits for water structures, while Mekorot is allowed to drill into water sources in a manner that dries out existing wells that serve the Palestinian population.[39]
[1] B'Tselem, 'Thirsty For A Solution The Water Crisis In The Occupied Territories And Its Resolution In The Final-Status Agreement' (2000) 51. [2] Al Haq, 'Water for One People: Discriminatory Access and "Water Apartheid" in the OPT' (2013)35. [3] Amjad Aliewi, 'Management Aspects of Transboundary Waters between Palestinians and Israel' (House of Water and Environment 2008) 1 [4] Al Haq, 'Water for One People: Discriminatory Access and "Water Apartheid" in the OPT' (2013)36. [5] Amjad Aliewi, 'Management Aspects of Transboundary Waters Between Palestinians And Israel' (House of Water and Environment 2008) 1. [6] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [7] Elizabeth G Matthews, The Israel-Palestine Conflict (Routledge 2011) 128. [8] Al Haq, 'Water for One People: Discriminatory Access and "Water Apartheid" in the OPT' (2013) 36 [9] David B Brooks and Ozay Mehmet, Water Balances in the Eastern Mediterranean (IDRC 2000) 79. [10] David B Brooks and Ozay Mehmet, Water Balances in the Eastern Mediterranean (IDRC 2000) 79. [11] Al Haq, 'Water for One People: Discriminatory Access and "Water Apartheid" in the OPT' (2013) 36. [12] Elizabeth G Matthews, The Israel-Palestine Conflict (Routledge 2011) 129. [13] Elizabeth G Matthews, The Israel-Palestine Conflict (Routledge 2011) 130. [14] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [15] World Bank, 'Assessment of and Restrictions on Palestinian Water Sector Development' (2009) 51. [16] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [17] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 22. [18] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [19] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [20] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 22. [21] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 22 [22] World Bank, 'Assessment of and Restrictions on Palestinian Water Sector Development' (2009) 41. [23] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 181. [24] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 21. [25] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 21-22. [26] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008)22. [27] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 182. [28] Centre on Housing Rights and Evictions, 'Policies of Denial: Lack of Access to Water in the West Bank' (2008) 22. [29] B'Tselem, 'Thirsty For A Solution: The Water Crisis in the Occupied Territories and Its Resolution in the Final-Status Agreement' (2000) 33. [30] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 182. [31] B'Tselem, 'Thirsty For A Solution: The Water Crisis in the Occupied Territories and Its Resolution in the Final-Status Agreement' (2000) 33. [32] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 182. [33] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 182. [34] Jeffrey D. Stein, 'Waging Waterfare: Israel, Palestinians, and the Need for a New Hydro-Logic to Govern Water Rights under Occupation' (2011) 44 NYU International Law and Politics, 182. [35] World Bank, 'Assessment of and Restrictions on Palestinian Water Sector Development' (2009) 52. [36] Hillel Shuval and Hassan Dweik, Water Resources In The Middle East (Springer-Verlag Berlin Heidelberg 2007)27. [37] Malvina Khoury, 'Construction and Rehabilitation of Water Sources in Area C: An Overview of the Applicable Legal and Permit Regime' (Norwegian Refugee Council 2013) 10. [38] Al Haq, 'Water for One People: Discriminatory Access and "Water Apartheid" in the OPT' (2013) 17. [39] Malvina Khoury, 'Construction and Rehabilitation of Water Sources in Area C: An Overview of the Applicable Legal and Permit Regime' (Norwegian Refugee Council 2013) 10.
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