Mr. Frederiksen, formerly head of the Water Resources Advisory Unit for the World Bank’s South and East Regions following management positions in two international consulting firms, is a private consultant in the field of water resources.
There is increasing pressure to resolve the Israel-Palestine conflict. The fundamental issue has been the form of the Palestine entity: an independent sovereign state, an “autonomous” region under Israeli sovereignty or an integral part of a binational Israel. Israeli leaders and the conservative parties seek the goal of a Greater Israel having a common border with the Kingdom of Jordan. Others in Israel pursue an agreement creating a subservient entity under Israel that would evolve into a fully incorporated area of Israel. The Palestinians seek a viable, sovereign State of Palestine, independent of Israel, which would be free to direct the development and utilization of its resources and engage with the international community.
The 1947 UN General Assembly Resolution 181specified a division of historical Palestine into two independent sovereign states: a Jewish state and a Palestinian state. Provisions stipulated that there would be no biases. No other options were debated.
Even the legitimacy of the UN resolution to divide this long-settled land was accepted by a margin of only one vote.
International politics — particularly actions — and the acquiescence of the international community over decades have granted Israel de facto power to decide the fate of the resident Palestinians. Today the international community must face its responsibility to resume its indisputable role and to decide this basic issue — and then resolve the associated issues equitably. Otherwise, the deteriorating human and security situation in these lands and the bordering countries will produce prolonged and severe repercussions.
Two options will be described that represent different forms of a Palestinian entity: one the goal of Israel, the other that of the Palestinians. Any program to settle the Israeli-Palestinian conflict also must fully address other issues affecting Jordan, Lebanon, Syria and the occupied territories. The return of land and water re- sources and compensation for the burden of refugees driven out by Israel will be discussed with other measures included in the proposal calling for the federation of a sovereign State of Palestine with the Kingdom of Jordan.
60 YEARS UNDER ISRAELI APARTHEID
Israel methodically pursues an alternative to a viable sovereign State of Pales- tine. This has been evident in its long-term strategy and in the provisions of the most recent Israeli proposals for a settlement with the Palestinians.1 The ultimate objective is the permanent expansion of Israel’s long-established apartheid condition of Israeli Arab citizens beyond Israel’s current borders to include those living in the occupied territories.2 The consequences of this option warrant a clear understanding of Israel’s Basic Laws and their application to areas under Israeli control.
These Israeli laws violate provisions of the 1947 U.N. Resolution 181. Part I states that the Future Constitution must include “guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms. . .. The Constitutions of the States shall embody Chapters 1 and 2 of the Declaration. . ..” Declaration, Chapter 2: “No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex. All persons within the jurisdiction of the State shall be entitled to equal protection of the laws.” Chapter 3 prohibits States from enacting biased citizenship laws: “1. Citizenship: Palestinian citizens residing in Palestine. . ., as well as Arabs and Jews who, not holding Palestinian citizenship, residing in Palestine. . .shall, upon the recognition of independence, become citizens of the State in which they are resident and enjoy full civil and political rights. . . .”3
Nevertheless, once the State of Israel was established, it adopted legislation to withdraw basic rights from its Arab citizens and expropriate their assets. Of greatest consequence, the Basic Laws established two levels of "citizenship" for residents of Israel based on religion and race. Only those Basic Laws relating to the land and water rights of non-Jewish citizens of Israel will be summarized below.
Israel’s Basic Laws are equivalent to the constitution of Israel and include the “social and political rights” of Israel’s inhabitants. The Law of Return, the Law of Citizenship, the Entrance to Israel Law, and the Status Law effectively created two types of status for Israeli inhabitants: Israeli “citizenship” (citizens) and Jewish “nationality” (nationals). “Citizenship (erzahut) may be held by Arabs as well as Jews while nationality (le’um), which bestows significantly greater rights than citizenship, may be held by Jews alone.”4
“The Law of Return (1950) grants every Jew, wherever he or she may be, the right to come to Israel as an ‘oleh’ (a Jew immigrating to Israel) and become an Israeli citizen and a national. For purposes of this Law, ‘Jew’ means a person ….”5 Christian and Muslim Arabs remaining within its borders at the conclusion of the War of 1948 are only eligible for Israeli citizenship.
The rights associated with these status distinctions are not clearly defined in any one law. Instead, it is through the connections among the country’s Basic Laws that these become evident. For example, the Status Law of 1952 established a joint authority between the Israeli government and certain national institutions operating inside Israel and extraterritorially. These national institutions include the World Zionist Organization (WZO), the Jewish Agency (JA), and, through the Jewish Agency, the Jewish National Fund (JNF) and its subsidiaries. Bound by their respective charters, these national institutions may only serve Jewish people/nationals.
Through the joint authority, these national organizations administer a number of Israel’s social programs and own and/or control most of Israel’s state water, power, infrastructure and land.
Thus, “[t]he government, serving a ‘citizen’ constituency, can at any time, give the Jewish Agency, or a like group, authority to deliver the services to its ‘national’ constituency.”6 In this manner, there are two levels of services (including water) for Israeli citizens, depending on that person’s ethnicity and religion.
The Absentees’ Property Law (1950)
… applied to the land of any Palestinian who fled or was forced to leave their property during the 1948 war.The same law was later applied to Palestinians in the West Bank and Gaza after the 1967 war. The property rights were transferred to the Custodian of Absentee Property, without compensation to the property owner or provision … to appeal…. Those who fled in 1948 and in 1967 were prevented by Israel from returning to their property.7
Absentee property could then be legally transferred to Israel’s Custodian for Absentees’ Property under the control of the Israel Land Administration. All land (and associated water) under the Israel Land Administration is state land according to the Basic Law on Israel Lands, adopted in 1960.
The basis of the law is the special relationship between the People of Israel and the Land of Israel and its redemption. The law ensures that the state lands, which constitute about 90 percent of the lands in the state, should remain national property. The Law prohibits the transfer of owner- ship over lands owned by the State, the Development Authority of the Jewish National Fund, either by sale or any other means, with the exception of types of land or transactions, that have been specified in the law.8
The use of this land is allowed through 99-year renewable leases, which are offered only to Israeli inhabitants of Jewish nationality and issued by the state, the JNF or the Land Development Authority. Many leases stipulate that any employment opportunities occurring on state lands be filled by Jewish nationals. Thus, Palestinians may not lease or, for the most part, work on Israeli land, which constitutes 93 percent (as of the mid-1980s) of the land in Israel. By these laws, Israel expropriated essentially all land and associated water resources without compensation for use by its “nationals” — Jews within Israel and all new Jewish immigrants.
Susan Nathan has lived in South Africa and England, but moved to Israel in 1999 to experience what she assumed others had when they moved to this Jewish land. After she developed a concern with what she encountered during work in Tel Aviv and observations elsewhere, she relocated to an Arab town of 25,000 to teach English.
Two years later, she wrote a book about the conditions:
Now, after more than five decades of aggressive land confiscation policies toward Palestinian citizens, 93 percent of the Israeli land is owned either by the state or the Jewish National Fund … This, in itself unremarkable, is significant because the land is held by the state not for the benefit of its citizens, all Israelis, but in trust for the Jewish people around the world…The rest, 7 percent, is split between private Jewish and Arab owners. Even so, much of the 3 percent … held by the country’s Arab population has been put under the jurisdiction of Jewish regional councils, which refuse to give Arab citizens permits to develop it.9
Today there are hundreds of settlements exclusively for Jews across Israel, part of what the state terms its “Judaization” programs; moving Jews into traditionally Arab areas so that Arab communities can be brought under Jewish dominion.10
“The 93 percent of the land owned by the state and the JNF is leased to communities like the kibbutzim, moshavim and mitzpim — the backbone of the apartheid system identified by Uri [Davis].”11 (Dr. Davis has been actively engaged in Arab property disputes with Israeli bodies. He was born in Israel but has relocated to the UK.)
More than 100,000 Arab citizens, or one in ten of the Arab population, are classified under the Planning and Building Law as living in what the state considers ‘unrecognized villages.’ …about 70,000 Bedouin, live in appalling conditions in the Negev Region … forced to live in tents or tin shacks, because anything more permanent would be demolished by the authorities.12
Though the Arab population continues to increase, Arab villages may not expand. Israel does not allow any new Arab villages, and there is no space for additional houses or businesses.13 Arabs citizens of Israel may not join the Israeli military for reasons of security. However, this also prevents Arab youth from participating in the college-education and other support programs provided to reserve and active IDF members.14
Ali Abunimah in an op-ed in the December 26, 2006, Wall Street Journal describes some Israeli apartheid actions. Non-Jewish schools receive a fraction of the funding received by their Jewish counterparts. A Jewish person from anywhere in the world may settle in Israel, yet family members of Arab citizens, even those refugees living in neighboring countries or refugee camps, may not set foot in Israel.
The laws of Israel provide irrefutable information on what would evolve under arrangements for a state of Palestine that is in any manner directly or indirectly linked to Israel: apartheid for the Palestinians.
In 2005, Israel confirmed its intent to apply its Basic Laws to the Arabs in the occupied territories too. As reported by Haaretz January 20, 2005, the government applied the Absentee Law to West Bank farmers from Bethlehem and Beit Jala whose properties were isolated on the Israeli side of the Israeli-built barrier wall in East Jerusalem. “The state’s response stated that the lands ‘no longer belong to them, but have been handed over to the Custodian for Absentee Property’. At stake are thousands of dunam of agricultural land on which the Palestinians grew olives and grapes throughout the years.” There will be no compensation.
The toleration by the United States and the international community of Israel’s blatant violation of international law and the most basic human rights underlies the Palestinians’ firm rejection of any link to Israel — and their 2006 vote. Have we forgotten the history of South Africa?
WATER CRISIS
The equitable resolution of the Israeli- Palestinian conflict must be an integral part of the settlement of issues between Israel and its neighbors. Two aspects of the dispute are involved. One is the imposition on Gaza, the West Bank, Lebanon, Syria and Jordan of the 3.9 million Palestinian refugees Israel forced out of their villages and off their lands in Israel. This equals 60 percent of the entire present population of Israel. The second is the direct loss of land and water resources taken by Israel from the occupied territories and the three neighboring countries.
The expulsion15 — 750,000 in 1948-49 and 200,000 in 1967 — had wide-ranging impacts. By 2002, a total of 3.93 million refugees were registered, 1.86 million still living in refugee camps constructed after the 1949 and 1967 events. Gaza and the West Bank have 1.47 million refugees, Lebanon and Syria have close to 400,000 each, and Jordan has 1.7 million.16 In every case, they burden meager resources land and water — as well as services and infrastructure. The human costs are far greater, triggering outrage and violence.
The severity of the water crisis in these countries is a measure of the conflict’s impact. A report by the World Water Council provides estimates of the quantity of annual renewable water available per capita (expressed as cm/y/ cap) in the 20 Arab countries in the years 1990 and 2025.17 The Arab countries constitute the most water-deficient group in the world. The present Palestinian water shortages are or soon will be matched or exceeded by the neighboring three countries as indicated in Table 2.
The United Nations classifies a quantity of 1700 cubic meters of water per capita as “periodic” stress. 1000 cm/y/cap is classified as “chronic” stress, and 500 cm/y/cap as “absolute” stress. These quantities per capita are to satisfy all of a country’s water demands: industrial, commercial, agricultural, environmental and domestic. Jordan was already in a condition of absolute water stress in 1990, consuming more water than is replenished, by over-pumping its groundwater. Lebanon is entering the level of periodic stress and will be under chronic stress by 2025, with Syria approaching a level of absolute stress in 2025. The estimates for Syria do not fully reflect Turkey’s increasing retention of Euphrates water.
Further, these quantities are average annual values. The supply during pro- longed droughts for most Middle East countries will be substantially less, an inevitable human and economic crisis of unimaginable proportions. The adverse effects of global warming are already documented in Morocco.
The second impact of the conflict multiplies the consequences of the refugee problem. Through military actions, Israel has taken control of critical sources of water that were formerly under the sovereignty of Syria, Jordan, Lebanon and the West Bank. Syria lost the Golan Heights and access to the Jordan River and Lake Tiberius. Lebanon has lost land adjacent to Mt. Hermon and the Litani River. The Palestinians of the occupied territories have lost control of their aquifers underlying Gaza and the West Bank and their equitable allocation of the Jordan River. The refugees driven from their Israeli homes and lands lost the water that underpinned their economic activities and their well-being.
There is no water available from outside the Jordan Basin. Turkey is well along in its construction of the massive Southeast Anatolia Project. It will retain over 50 percent of the Euphrates flow, reducing the supply to Syria by 40 percent and to Iraq by 60-80 percent. Some estimates predict even greater reductions.18 Historically, these downstream riparians depended upon this source for their agricultural and urban supply. A similar reduction will occur on the Tigris with a smaller impact on Syria but substantial consequences for Iraq. Strained relations due to these changes affect Syria, Iraq and Turkey. Given this antagonism, there will be no remedial supply to the Jordan basin countries from Turkey, Iran or Iraq. Indeed, the Euphrates is the primary supply for the Sunnis living in the western region of Iraq — another grievance souring their attitude towards the “new” Iraq.
There can be no permanent Middle East peace without the return of captured land and water resources to the Palestinians, Jordan, Lebanon and Syria and the water expropriated from the Palestinian refugees now living in camps or as citizens in these four countries.
FEDERATION WITH THE RETURN OF RIGHTS, LAND AND WATER
It is proposed that a sovereign State of Palestine be created and that it join in a federation with the Kingdom of Jordan.
The State of Palestine would be independent of Israel and would have sovereignty over the lands comprising the entire area within the boundaries existing before the 1967 war. Its water resources and those of its neighbors would be fully restored, and the water of the Palestinian refugees confiscated by Israel would be reallocated to the neighboring countries in which they reside. Negotiations would address the other issues stemming from the conflict. The required measures can be readily identified, and mechanisms to ensure equitable treatment of issues have been defined by international instruments.
No independent international agency has completed a thorough study to ascertain the minimum attributes of a viable sovereign State of Palestine. Total freedom from outside political, economic and military pressures, plus land and water resources adequate for a robust economy and future growth, are essential. These, in turn, largely determine the acceptable decisions regarding most other issues. The evolution of the Palestine situation, obviously, has created many particularly emotional issues.
INDEPENDENCE FROM ISRAEL
The first question of viability pertains to the structure of a State of Palestine. There must be a two-state solution as called for in UN Resolution 181. A fully sovereign self-sufficient nation of Palestine was the intent of the United Nations and the countries that signed the resolution.
The Palestinians have demonstrated their desire for and ability to function as a democracy — if they were free from external interventions.
The behavior of Israel and the United States, however, has never been directed toward that goal, as is evident in the statements of Israeli officials and agencies.19 It is demonstrated by Israel’s Basic Laws and its actions within Israel, as well as in its continuing violations of international laws. A linkage, regardless of its form, of Palestine with Israel would ensure widening instability within the Middle East and far beyond.
Israel has proposed a transfer of West Bank lands to Jordan and, in May 1968, discussed it with King Hussein in London. The proposal was a compromise among Israeli factions. One opposed an Israeli annexation of the entire West Bank. Other ideological factions wanted Israel to incorporate all of the West Bank into “Greater Israel.” The resulting West Bank area offered to the king contained “those lands not needed by Israel.” This would have altered the boundary to an extent unacceptable to King Hussein. West Bank leaders had the same reaction to the “autonomy” offered earlier by Israel.20 The Palestinians wanted their land and their independence.
A State of Palestine can only survive by owning and managing all its land and water resources and guiding its own economic policies and development.
Palestine must be able to attract outside investments and international assistance. It must have open and free access for international commerce, particularly to allow its products to reach regional markets in a timely manner. Jordan would gain direct access to the Mediterranean by way of Gaza, strengthening the economies of both Jordan and Palestine.
Israel will, of course, express its security concerns in ways that have proven so effective for obtaining blanket support for its belligerent actions. These concerns can be answered by the proposed federation. The people of Palestine and Jordan have much in common. Importantly, a federation would allow both entities better economic opportunities in terms of investments, development and markets. The security and freedom gained by the Palestinians would facilitate the pursuit of a coherent joint foreign policy.
Land Resources
The basic land resources necessary to sustain an economically healthy and secure country in the particular setting of the occupied territories are substantial.
Today’s population of the West Bank and Gaza, the registered Palestinian refugees in the three neighboring countries, and a realistic future population growth of Palestine are involved. The question has been conveniently ignored in the proposals made by Israel and the United States.
There can be no question that the area defined by borders before the 1967 war would be an absolute minimum for a viable Palestine. This is a mountainous dry area, much of it with shallow soils and rock outcrops. It will require a multi-billion-dollar investment in land reclamation to remedy damage from settlements, roads and wastes shipped in from Israel (Haaretz, April 4, 2005) and the removal of all barrier walls constructed within the territories.
This allocation to Palestine would still leave Israel with 77 percent of historic Palestine, the long coastal access, the most productive lands and the potential for economically desalting a limitless supply of seawater.
The issues of “right of return” and restitution for confiscated Palestinian assets can be pursued in parallel. This will help restore hope and support among Palestinian refugees within the camps and among the Palestinian diaspora and provide a desperately needed source of investment funds. It will calm the violence.
Israel has devised methods to deter- mine the values of property expropriated under war conditions. A report by Diaspora Affairs Minister Natan Sharansky is discussed by Amiram Barkat in Haaretz on March 29, 2005, noting the value of pre-war Jewish property in Poland. Several assessments by the U.S. and other governments of Jewish property expropriated during World War II may be referenced.
Indeed, current Israeli property values are available. Israeli real estate is booming, and even Donald Trump is investing, along with other foreigners, as reported in BusinessWeek.com, December 27, 2006. Israel’s Kfar Shalom advertises land in Yavne’el Valley near Lake Tiberius for home development. This is located in a marginal agricultural area that Vice Premier Shimon Peres believes will soon see tourist projects and industrial parks (kfarshalom.com, January 1, 2007). A comprehensive 1999 study on refugee claims exists.21
Water Rights and Access
The water issues, though of fundamental importance, are physically and financially easier to resolve than any other issues in dispute. Professor Arnon Soffer says:
Dr. Martin Sherman of Tel Aviv University … ascribes to the importance of water in connection with the Arab-Israeli conflict and states that Israel is liable to transfer between 750 and 1,000 million cubic meters of water (MCM), or 65% of Israel’s entire potable water potential to the Arabs. He feels that desalination should begin immediately and that an annual amount of 50 MCM per year is not enough.22
Other Israeli officials also recognize that Israel will have to return expropriated rights and that desalination will be Israel’s major source of supply in the future.
Desalting seawater is already economically viable for Israel’s coastal centers.2
“Various areas … contain tens of millions of cubic meters of brackish water which can be desalinated at 20-50 cents per cubic meter.”24
Currently, Israel allows the 3.6 million Palestinians in the occupied territories less than 5 percent of the water used by Israel and Palestine together. Israel’s 6.7 million people receive over 95 percent. When including Israel’s large unexploited aquifer in the Negev25 and its unlimited access to the Mediterranean for economically desalted water supplies, Israel allows the Palestinians an insignificant percentage of the total water available.
In 1999, Israel used 59.6 percent of its water supply in its highly subsidized agriculture. Yet this sector produced an insignificant 1.6 percent of Israel’s GDP, employs 3 percent of its workforce and contributes only 2.2 percent to its ex- ports.26 Israel uses many times more water for this minor economic activity than it allows the Palestinians for their total needs. Israel’s irrigation serves as a mechanism for Israel to lay claim to this water while choking the Palestinians’ economy and imposing harsh living conditions. The alignment of Israel’s “security” wall inside the West Bank indicates that one of its purposes is to install deep wells to expropriate the Palestinians’ access to their key groundwater and quality agricultural land.27
Disputed water rights in the Jordan River basin can be physically transferred with limited infrastructure and costs. This also is true of the aquifers serving the occupied territories. It is mostly a matter of Israel’s reducing or halting surface diversions and groundwater extraction. It will have to disconnect its export lines drawing groundwater from the West Bank.
The transfer of water rights to refugees now living in the occupied territories and neighboring countries can be provided in a similar manner, though it will require substantial infrastructure investments in Lebanon, Syria and Jordan. A fair resolution of water rights may provide a means to partially address the issues of “right of return” and “restitution” for confiscated assets and foregone income. There are no legitimate constraints to these adjustments. It is a question of political realism. Indeed, the remedial actions can proceed in parallel with a final agreement.
As part of the agreements, Israel should be given an equitable source of water for its people and maintenance of a healthy, productive economy. A comprehensive accounting of all available resources — primary renewable freshwater sources, reused urban and irrigation water, and potential sources such as economically viable desalination of saline aquifers and sea water and Israel’s unexploited aquifers — should be compiled for the negotiations.
The water-related negotiation would be a foundation for the broader actions inherent in UN Security Council Resolution 1405, adopted on April 19, 2002. Among other matters, UN 1405 reconfirms UN 242, requiring a return to the positions held by all parties prior to the 1967 war. Eleven specific water-related measures are identified.
- Return Jordan River headwaters to Lebanon and Syria. (Israel made an incursion into Lebanon in 1982, ostensibly to strike at terrorists, in the process of which it captured and retains control of additional Lebanese and Syrian headwaters of the Jordan River and a portion of the Litani.)
- Return Jordan River access and the Golan Heights and the associated water resources to Syria. (The 1967 war was launched by Israel as the means to take international water held under a UN agreement and capture the water associated with the Syrian lands along the Jordan River and the Golan Heights while preventing the planned use of this water by Syria and Jordan.28)
- Restore equitable Jordan River water allocations among all riparians. (The primary supply of the Jordan River originates from Mount Hermon, lying entirely within Lebanon and Syria. The contributions to the river’s discharge are as follows: Syria, 50 percent; Jordan, 25 percent; Lebanon, 20 percent; and 2.5 percent, from Israel and the West Bank. (The major tributary arising within Israel also receives its entire supply from Mt. Hermon. Before partition, Lebanon, Syria, Jordan and historical Palestine relied upon these waters to meet their then-existing needs and to serve as a source for their future growth.)29
- Construct Maqarin Dam on the Yarmuk River for Syria and Jordan. (Israel pressed Jordan and Syria to construct a very small reservoir on their part of the Yarmuk River instead of the Maqarin, which would have provided much-needed long-term water storage for their use.)
- Halt Israeli export of water from West Bank aquifers. (Israel currently exports over 80 percent of the West Bank resources, another 1967 war objective.30 And now the route of Israel’s wall deviates significantly from the 1967 border alignment, to incorporate into Israel Palestinian areas that are the most productive for tapping the mountain aquifers.)
- Construct Israeli desalting plants on the Mediterranean to serve its coastal cities and adjacent plains. (Israel can tap a potentially unlimited supply of water by constructing desalting plants on the sea. As reflected in Israeli plans, this is an economically viable source for its cities and the coastal plain. This option is not avail- able to the interior of other countries or the West Bank, which would incur excessive additional costs to pump and distribute the desalted Mediterranean water to mountainous regions inland. Fortunately, these areas overlie groundwater sources that are to be returned.)
- Curtail Israeli irrigation. Israel pursues irrigated agriculture on 186,000 hectares [450,000 acres] by subsidizing the excessively high pumping costs, unaffordable by the agricultural industry, which in 1999 consumed 59.6 percent of Israel’s total water supply.
- Halt diversion of Israeli salt springs to the Jordan River. (A series of large salt- water springs arise in the area to the west of Lake Tiberius that historically dis- charged into the lake, which diluted their discharge. To remove this contribution to the lake’s salt content, Israel diverts the water into the Jordan River downstream from the lake. Israel agreed with Jordan several decades ago to halt this practice because it renders the remaining Jordan River water unsuitable for any use.)
- Develop Israel’s Negev aquifer. (One Israeli official indicated that the Negev water was of a quality equal to that of Lake Tiberius and of a quantity equal to 125 to 250 years’ safe supply from the Mountain Aquifer.)
- Recycle wastewater. (Israel already recycles some wastewater and has plans for much more.)
- Transfer refugee water rights, originally a part of their lands in the areas comprising Israel and the territory it occupies, to the present countries of residence of those refugees. (Israeli irrigation and urbanized areas on those lands are a measure of the expropriated water rights. Compensation for the loss of assets by the refugees would be addressed separately.)
INTERNATIONAL INSTRUMENTS
Three groups of international instruments would apply to formulating an equitable resolution of the water-resources issues. Most aquifers and all surface streams involved are international bodies of water, and all parties involved in the situation are subject to the provisions of these instruments. The instruments will not be discussed in detail, but their application is evident within the instruments them- selves and has been cited in several documents.
- Those instruments relative to military actions include the following:
- The Hague Convention on War (1907),
- The United Nations Charter (1945),
- The International Court of Justice (1945),
- The Fourth Geneva Convention on War (1949),
- United Nations General Assembly Resolution 181 (1947) and others,
- The International Covenants for Economic, Social and Cultural Rights (1966).
Actions that are part of a first step must be taken to restore resources expropriated by military force. Three examples are these:
- The Geneva Convention on War prohibits the taking of resources by occupying powers.
- UN General Assembly Resolution 1803 prohibits the violation of a people’s rights to sovereignty over their natural resources.
- The Covenant of Rights prohibits interference in the use of another people’s natural resources.
- Those instruments relative to disputes over international water resources are the following:31
- The ILA Helsinki Rules on the Uses of the Waters of International Rivers (1966),
- The ILA Seoul Rules on International Groundwater (1987) augmenting the Helsinki Rules,
- The Bellagio Draft Treaty on Ground- water (1989),
- The UN Law of International Water Courses (1997).
The adopted Helsinki Rules and the UN Law of the Non-Navigable Uses of International Waters confirm the principles bearing on the responsibilities of the countries riparian to an international body of water. Riparians must observe fundamental principles such as these:
- Exchange all water-related data, respect the equity of use by other riparians, and act to protect the environment.
- Meet the obligation to not cause significant harm to other basin states.
- Refrain from transferring water out of a basin without a resolution of the concerns and needs of all other riparian countries.
- Facilitate the submission of conflicts to the UN International Court of Justice for resolution.
- UN Resolution 181 and numerous additional UN resolutions (http:// domino.un.org/unispal.nsf/fRecRes) since then have been directed towards the conflict or actions by the parties. UN Resolution 181 set forth the partition of historical Palestine. Though not stated in explicit provisions on water (there were none), the land and water assets of the residents of the area were protected. Provisions of UN Resolution 181 that pertain to land ownership and water rights include the following:
- Residents could remain in the resulting state with ownership of their assets and full rights held prior to partition.
- Water rights would remain with individual landowners.
- Residents would be fully compensated if they requested relocation.
- International instruments and principles apply to all disputes.
RESOLVING THE SITUATION
The International Court of Justice (ICJ) is the principal venue for resolving conflicts among members of the United Nations and conflicts between two parties, one of which is a UN member. The Law of International Watercourses calls for arbitration or submittal of a dispute to the ICJ. Three articles of the UN Charter describe the status of the Court.
Article 92: “The International Court of Justice shall be the principal judicial organ of the United Nations.”
Article 93: “1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. 2. A state which is not a member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.”
Article 94: “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
The politics and complexity of undertaking an equitable resolution to the Israeli- Palestinian conflict have overwhelmed the present dysfunctional arrangements. Sixty years of failure to address the conflict in an unbiased timely manner rule out (a) the General Assembly (the UN applied its “power” to execute UN I81, yet refuses to enforce 181 or any of the other numerous resolutions issued subsequently), (b) mediation (the United States has tolerated the deteriorating situation, ignored international instruments and helped fund Israel’s unhelpful actions) and (c) direct negotiations by Israel and the Palestinians (Israel unabashedly and aggressively seeks all of Palestine and the subservience of the Palestinians).
Unfortunately, ICJ Article 93 contains a potential obstacle. Since the Palestinians do not now have a “state,” they cannot — and Israel will not — submit a request for an ICJ hearing. In such circumstances, the Security Council is to decide whether a request should be submitted on their behalf. The United States, however, has threatened to veto it, precluding an approach through the customary UN procedures. Indeed, in 2006, the United States campaigned to abolish the ICJ.
The international community as a whole will have to face up to what it has created. Through the United Nations, or outside it if vetoes prevail, it will have to engage the ICJ. This is the only venue where facts can be introduced, fair judgment sought and politics avoided. To accelerate the process, the community could immediately assemble a small commission to proceed with investigations and preparation of findings for presentation to the ICJ. This use of the ICJ will require a dedicated leadership in the community, needless to say.
CLOSING COMMENTS
After approving the partition of the Palestinians’ lands in 1947, the international community abdicated its responsibility to create a viable State of Palestine in the area remaining to them. It prohibited a Palestinian hearing in the ICJ of this unprecedented UN act of partition. It has given Israel the power to dictate the future of the Palestinians. The offers by Israel and the U.S.-mediated solutions will not lead to peace. Professors Mearsheimer and Walt have documented the power of the Israeli lobby and its immense influence on U.S. foreign policy. This will continue no matter which political party is in power.32
King Abdullah II of Jordan governs a country suffering from the surrounding Middle East conflicts. His is a voice of reason that seeks a solution to the crisis affecting the region’s people. In a November 26, 2006, ABC News interview, he stated:
…We’re juggling with the strong potential of three civil wars in the region, whether it’s the Palestinians, that of Lebanon or of Iraq …. The issue is, we have not been able to deal with the core problem of the Middle East. … For the majority of us living in this part of the world, it has always been the Israeli-Palestinian, the Israeli-Arab problem. … If we don’t solve the Israeli- Palestinian problem, then how can we ever solve the Israeli-Arab problem?
A vigorous, broad and immediate program by the international community that leads directly to a viable, sovereign State of Palestine and a full settlement of claims of neighboring countries is the most urgent task facing the world community today. There can be more “transitions.” The imposition of hundreds of thousands Iraqi refugees on Syria and Jordan only worsens the situation. Without an immediate and dramatic reversal of its past silence, the world community will leave an unconscionable, destabilizing legacy with ramifications far beyond Israel, Pales- tine and the greater Middle East.
1 Harald Frederiksen, “Water: Israeli Strategy, Implications for Peace and the Viability of Palestine,” Middle East Policy, Vol. 10, No. 4. Winter 2003, p. 72
2 The Likud Party Platform, provisions; The Palestinians: Self Rule … The Jordan River as a Permanent Border available on the Israeli government site, found at www.knesset.gov.il/elections/knesset15/elikud_m.htm Accessed 12/15/06.
3 United Nations, General Assembly Resolution 181, November 29, 1947.
4 Roselle Tekiner, “Israel’s Two-tiered Citizenship Laws Bar Non-Jews from 93 Percent of Its Lands,” Washing- ton Report on Middle East Affairs, January 1990. Available on www.washington-report.org/backissues/0190/ 9001020.htm. Accessed 1/12/07, p. 20. See also Roselle Tekiner, “Jewish Nationality Status as the Basis for Institutionalized Racial Discrimination in Israel,” Middle East Policy, No. 17, Summer 1986.
5 World Conference Against Racism — Durban, “Acquisition of Israeli Nationality,” Israel Ministry of Foreign Affairs, August 20, 2001 found at www.mfa.gov.il/MFA/MFAArchive/2000_2009/2001/8/ Acquisition%20of%20Israeli%20Nationality. Accessed 1/12/07.
6 Roselle Tekiner, “Israel’s Two-tiered Citizenship,” p. 20.
7 Samar Assad, “Reviving the Absentee Property Law: Another Step in Consolidating the Occupation,” Media Monitors Network, 1/27/2005, found at: http://usa.mediamonitors.net/headlines reviving_the_absentee_property_law_another_step_in_consolidating_the_occupation. Accessed 1/12/07. See also: “Laws of the State of Israel: Authorized Translation from Hebrew,” Vol. 4. (Government Printing Office, 1948-1987), pp. 68-82. Found at: www.geocities.com?savepalestinenow/isrealilaws.fulltext/ absenteepropertylaw.htm. Accessed 1/12/07.
8 The State of Israel, “The Existing Basic Laws: Summary.” Found at: www.knesset.gov.il/description/ eng_mimsha;_yespd2.htm#2. Accessed 1/12/07.
9 Susan Nathan, The Other Side of Israel: My Journey across the Jewish/Arab Divide (Random House, 2005), p.144.
10 Ibid, p. 144.
11 Ibid, p. 148.
12 Ibid, p. 144.
13 Ibid, p. 152.
14 Ibid, p. 111.
15 Nur Masalha, The Expulsion of the Palestinians; The Concept of “Transfer” in Zionist Thought, 1882-1948 (Institute of Palestine Studies, 1992), p. 179.
16 Andrew Cockburn, “Lines in the Sand,” National Geographic Magazine, Vol. 202, No. 4, October, 2002, pp. 102-104.
17 Mahmoud Abu-Zeid and Atef Hamdy, Water Vision for the Twenty-First Century in the Arab World, (World Water Council, 2002), p. 30.
18 See also Diane Ward, Water Wars: Drought, Flood, Folly, and the Politics of Thirst (Penquin Putnam Inc., 2002), pp. 177-178.
19 See notes pp. 1 and 2.
20 Avi Shlaim, The Iron Wall: Israel and the Arab World (W. W. Norton & Company, 2001), pp. 262-263.
21 See Terry Rempel, “The Ottawa Process: Workshop on Compensation and Palestinian Refugees,” Journal of Palestine Studies, Autumn 1999.
22 Arnon Soffer, “Mapping Special Interest Groups in Israel’s Water Policy,” Efficient Use of Limited Water Resources, Making Israel a Model State, Barry Rubin, ed., (Begin-Sadat Center for Strategic Studies (BESA), Bar-Ilan University, December 2001), p. 146. See also Harald Frederiksen, “Water in the Israeli / Palestinian Conflict: A History with Few Options.” 5th IWHA Conference Tampere, Finland 2007, Pasts and Futures of Water, pp. 12-13.
23 Peter Wiseburgh, Preface to Rubin’s Efficient Use of Limited Water Resources. See also Pinhas Glueckstern, “Desalination: Current Situation and Future Prospects,” in the same book.
24 Joshua Schwarz, “Water Resources Development and Management in Israel,” in Efficient Use of Limited Water Resources.
25 Discussion by Professor E. Adar at a meeting of the San Diego American Associates of Ben Gurion University, San Diego Jewish Press-Heritage, December 29, 2002. See also A. Issar, “The Water Resources of Israel, Past, Present and Future — A Comprehensive Outline,” Palestine Center for Regional Studies, 2000.
26 Arie Sheskin and Arie Regev, Israeli Agriculture: Facts and Figures, Second Edition, (Jerusalem, Ministry of Agriculture and Rural Development, December, 2001), p. 7.
27 Clemens Messerschmid, “Separation Wall and Water Resources Perspectives,” authorized English version, originally published in German in the quarterly Informationsstelle Naher und Mittlerer Osten (INAMO), (http:// www.inamo.org:8080/inamo/backlist/34), 2003.
28 Harald Frederiksen, “Water: Israeli Strategy, Implications for Peace. . .,” pp. 78-81.
29 Harald Frederiksen, “The World Water Crisis: Ramifications of Politics Trumping Basic Responsibilities of the International Community,” International Journal of Water Resources Development, Vol. 19, No. 4, December 2003, pp. 607-609.
30 Harald Frederiksen, “Water: Israeli Strategy, Implications for Peace. . .,” pp. 78-81.
31 Stephen McCaffrey, The Law of International Watercourses: Non-Navigational Uses (Oxford University Press, 2001), See also: Joseph Dellapenna, “Water in the Jordan Valley: The Potential and Limits of Law” The Palestine Yearbook of International Law, (al-Shaybani Society of International Law), and Harald Frederiksen, The World Water Crisis: Ramifications of Politics Trumping Basic Responsibilities of the International Community.
32 John Mearsheimer, and Stephen Walt, “The Israel Lobby and U.S. Foreign Policy,” Middle East Policy, Vol. 13, No. 3, Fall 2006.
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