Middle Eastern and North African Hydropolitics: From Eddies of Indecision to Emerging International Law

Georgetown International Environmental Law Review, Spring 2006 by Burleson, Elizabeth

I. INTRODUCTION

The groundwater shared by Israelis and Palestinians is not sufficiently covered by international water law, leaving open the issue of reasonable and equitable water use as it relates to the Middle Eastern and North African peace process. The death of Yasser Arafat, election of Hamas, removal of Saddam Hussein, passage of United Nations security Council Resolution 1483,' and conflict in Sudan significantly alter the geopolitics of the region. In 1991, Julio Barberis suggested that international law of transboundary groundwater might follow rules on oil and gas that allocate shares in proportion to the volume of the natural resource underlying each state.2 Recent codification efforts have provided a broader framework with which co-aquifer states can address transboundary natural resources through flexible water use provisions, equitable distribution of water benefits, and strong dispute resolution mechanisms.3 The United Nations International Law Commission (ILC) has taken on the task of codifying shared natural resources provisions for groundwater, oil, and gas. In 2005, the DLC's third report proposed a Draft Convention on the Law of Transboundary Aquifers4 that seeks to codify established and emerging rules on the use and protection of transboundary groundwater.

This article analyzes Middle Eastern and North African hydropolitics in light of emerging international law. Part II applies the multifactor balancing test of the Draft Convention on the Law of Transboundary Aquifers to the Israeli-Palestinian conflict. The transparency achieved by bringing these factors together and addressing them collectively can help Israelis and Palestinians build consensus. Part III addresses various means by which integrated aquifer collaboration can occur. International law consists of the accretion of co-aquifer agreements as well as international treaties. Existing co-aquifer arrangements can be helpful in resolving Israeli-Palestinian water enmity. Switzerland and France might not shed light on how to transition away from occupation to normalized state relations but can model state practice of collaborative water monitoring by a joint commission. While recharging and non-recharging aquifers require distinct considerations, North African fossil aquifer agreements offer Palestinians and Israelis examples of state practice between countries emerging from armed conflicts that have marred recent foreign relations. Part IV concludes that emerging water standards and multifactor balancing can enable Israelis and Palestinians to achieve sustained peace and security.

II. ILC FACTORS WITH WHICH ISRAELIS AND PALESTINIANS CAN ADDRESS TRANSBOUNDARY GROUNDWATER

As basin-wide needs are clarified, transboundary water agreements can enhance security. Israelis and Palestinians can use the ILC's international framework as a guide in Grafting a regional water-sharing agreement.5 According to Article 6 of the Draft Convention on the Law of Transboundary Aquifers, co-aquifer states should assess the following factors: (A) natural condition of an aquifer, (B) social and economic needs, (C) population, (D) impact on co-aquifer states, (E) existing and potential use, (F) development and conservation, and (G) alternative water sources.6 Addressing these factors can facilitate good faith negotiations between Israelis and Palestinians. Mutual benefit leads to an array of interactions between governments and nongovernmental actors across economic, legal, and scientific fields. These relations can help sustain cooperative conservation and use of Israeli-Palestinian groundwater.

A. THE NATURAL CONDITION OF THE AQUIFER OR AQUIFER SYSTEM

Israeli-Palestinian water cooperation depends upon a sound understanding of natural conditions. The Draft Convention on the Law of Transboundary Aquifers clarifies that l"[a]quifer' means a permeable [water-bearing] geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation."7 Israelis and Palestinians share the coastal aquifer, which extends from Mount Carmel in the north down the Mediterranean coastline to Gaza. They also share the Mountain Aquifer System, including the western, northern, and possibly eastern aquifers. The Mountain Aquifer basin underlies the West Bank and Israel.8 The recharge of the Mountain Aquifer occurs primarily within the West Bank while most of the aquifer's high quality water naturally flows into Israel.9 The United Nations Educational, Scientific and Cultural Organization (UNESCO) notes that from a hydrological perspective, groundwater extraction is relatively easy over the foothills and lower mountain slopes of Israel, while engineering capacity needed to drill from the mountain tops of the West Bank would be technically possible but would necessitate deeper wells that would produce less water at a higher cost.10

Approximately twelve percent of the Gaza Strip and West Bank is desert, eroded, or saline land.11 Scarcity of water increases the need for strong dispute resolution mechanisms between Israelis and Palestinians. The natural condition of the region does not fit easily within the 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses,12 which defines a watercourse as "a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus."13 Based upon current hydrological understanding, this definition appears to exclude both the Mountain and Coastal Aquifers because an aquifer must be physically related to a surface body of water to meet the Convention's definition.14 Furthermore, the Mountain Aquifer flows toward three divergent termini rather than the common terminus required by the Convention. According to Eckstein and Eckstein the intermittent streams that flow into the Coastal Aquifer do not supply consistent or sufficient recharge for the surface and groundwater to constitute a hydrological system.15 Irrespective of the degree to which existing international law covers Israeli-Palestinian hydrological systems, a regional water-sharing agreement could address the given natural conditions.