H 2 O AFTER OSLO II: LEGAL ASPECTS OF WATER IN THE OCCUPIED TERRITORIES

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H 2 O AFTER OSLO II: LEGAL ASPECTS OF WATER IN THE OCCUPIED TERRITORIES

in The Palestine Yearbook of International Law Online

References

1 See Bar-El, The Long Term Water Balance East and West of the Jordan River (1995), . The statistical tables which accompany this paper are at . A similar warning that, given projected water demand, Israel and the occupied Palestinian and other Arab territories would be in water deficit by the year 2000 was made by the UN Economic and Social Commis- sion for Western Asia, Report on Israel Land and Water Practices in the Occupied Palestinian and Other Arab Territories, [hereinafterWAsia E.S.Comm.], A/46/263 and E/1991/88 (1991) at 5, para.9. Others take a less pessimistic view of the situation, arguing that the substitution of water-expensive indige- nous agricultural production though the importation of "virtual water" in foodstuffs grown in more humid regions could eradicate the problem; see, for instance, Allan, Middle East Water: Local and Global Issues, . The Government of Israel also maintains a World Wide Web site, which mirrors the site, at the following address - . The contents of these directo- ries overlap but are not identical. All Internet references in this paper are cited in accordance with the protocols set out in Fletcher and Greenhill, Academic Referencing of Internet-based Resources 47 ASLIB Proceedings 245 (1995), with the amendment that I have enclosed site addresses within angled parentheses thus . 2 Israel Foreign Ministry, Moscow Session Background Paper, Multilateral Issues: Water in the Middle East (1992), . 3 Hereinafter Oslo II. The full text of this agreement may be found at the following Internet site: . The body of the Oslo II agreement, but without the annexes which are indispensable in the analysis of water rights, is reproduced as a special supplement to Palestine Report, 13 October 1995, at 15. * See text infra at 353 Ed. 4 Reproduced 7 Palestine, Y.B. Int'l L. 232 (1992/94), 28 Israel L.Rev. 442 (1994) and 4 Euro.J.Int'1 L. 572 (1993); and on the Internet at , and also at . For commentaries on the Declaration of Principles, see Benvenisti, The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement 4 Euro.J.Int'1 L. 542 (1993); Calvo-Goller, L'Accord entre Israel et l'OLP: le r�gime d'autonomie prévu par la Déclaration de Princips du 13 Septembre 1993 39 A.F.D.I. 435 (1993); Shihadeh, Can the Declaration of Principles Bring About a "Just and Lasting Peace"7 4 Euro.J. Int'l L. 555 (1993); and Singer, The Declaration of Principles on Interim Self-Government Arrangements: Some Legal Aspects (1994), . This article was also published by the International Association of Jewish Lawyers and Jurists in 1 Justice 4 (1994).

5 7 Palestine Y. B. Int'l L. 243 (1992/94; The full text, including annexes, is reproduced at 33 LL.M. 622 (1994) and 28 Israel L.Rev. 452 (1994), and may also be found at . 6 These provisions correspond to Articles IV and V.4 of the Declaration of Principles, which provide: IV. Jurisdiction of the Council will cover West Bank and Gaza Strip territory, except for the issues that will be negotiated in the permanent status negotiations. The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period. V.4. The two parties agree that the outcome of the permanent status negotiations should not be preju- diced or preempted by agreements reached for the interim period. On these provisions of the Declaration of Principles, Benvenisti, supra, note 4, at 548 and 550-551 argues that they are ambiguous. He claims that it is not ex facie clear whether the Israeli redeployment of military forces and transfer of competence to the Palestinian authorities during the interim period entails a termi- nation of Israel's belligerent occupation of the Occupied Territories. Given this doubt in the literature, it has been decided to analyse the issue in the light of Oslo II, rather than simply rely on the assumption that the occupation will only terminate with the entry into force of a permanent status agreement which clearly establishes an independent Palestine.

7 See, for instance, Blum, The Missing Reversioner. Reflections on the Status of Judea and Samaria, 3 Israel L.Rev. 279 (1968), at 281-294; Mallison & Mallison, The Palestine Problem in International Law and World Order, at 240-275(1986), Falk and Weston, The Relevance of International Law to Israeli and Pales- tinian Rights in the West Bank and Gaza, in Playfair, ed., International Law And The Administration Of Occupied Territories 125 (1992), at 130-132; Roberts, Prolonged military occupation: the Israeli-Occupied Territories 1967-1988, in Playfair, id. 25, at 46-47; and Shamgar, The Observance of International Law in the Administered Territories, 1 Israel Y.B.Hum.Rts. 262 (1971), at 263-266. At the time he wrote this arti- cle, Shamgar was the Israeli Attorney-General. 8 For instance, see Boyd, The Applicability of International Law to the Occupied Territories, 1 Israel Y.B. Hum.Rts. 258 (1971) passim: Dinstein The lnternational Law of Belligerent Occupation and Human Rights, 8 Israel Y.B. Hum.Rts. 104 (1978), at 107-108; Falk and Weston, supra, note 126, 132-133; and Roberts, supra, note 126, 47 et seq, especially at 52. The International Committee of the Red Cross has repeatedly affirmed that Geneva Convention IV is applicable to the territories; see, for instance, the letter reproduced in Labour and Conservative Middle East Councils, Towards a Strategy for the Enforcement of Human Rights In the Israeli Occupied West Bank And Gaza: A Working Symposium (1989), at vii-viii. State practice has also generally taken the form of affirmations that Geneva Convention IV is applicable, often in the context of declaring illegal the Israeli settlement policy. The European Community has dismissed the Israeli arguments as "without merit"; see United Kingdom Materials on lnternational Law, 59 Brit Y.B. Int'l L. 421 (1988), at 574, and further for statements by both the United Kingdom and the Community id. 61 Brit Y.B. Int'l L. 463 (1990), at 622 et seq; id. 62 Brit Y.B. Int'l L. 535 (1991), at 691 et seq; id. 63 Brit Y.B. Int'l L. 615 (1992), at 816-817; id. 64 Brit Y.B. Int'l L. 579 (1993), at 723-724. For the United States position, which on occasion has expressly rejected the "missing reversioner" argu- ment, see Dig.U.S.Prac.Int'l L. 1976 at 634-635, 710; Dig.U.S.Prac.Int'l L. 1977 at 922 et seq; Dig.U.S.Prac.Int'1 L. 1978 at 1575 et seq; Dig.U.S.Prac.Int'l L. 1979 at 1752 et seq; and Boyd and Nash, Contemporary Practise of the United States Relating to lnternational Law, 72 Am.J.Int'1 L. 879 (1978), at 908 et seq. The November 1976 Security Council consensus statement also affirmed that the territories were under belligerent occupation; see Dig.U.S.Prac.Int'l L. 1976, 711 at 712. 9 If nothing else, Article 31.3.b of the 1969 Vienna Convention on the Law of Treaties provides that the sub- sequent practice of the parties in the application of a treaty has interpretative weight.

10 See McNair and Watts, The Legal Effects of War at 377-378 (1966, 4th edn); and Schwarzenberger, Inter- national Law as Applied by International Courts and Tribunals. Vol. II: The Law of Armed Conflict at 324 (1968). 11 Oppenheim, International Law: A Treatise. VOLII.- Disputes, War and Neutrality 435 (Lauterpacht, ed., 1952, 7th edn) Ihereinafter Oppenheim-Lauterpacht]: see also Re Lepore 13 Annual Digest Of Public International Law Cases [hereinafter Ann.Dig] 354 (Supreme Military Tribunal, Italy: 1946) at 355; Dis- ability pension case 90 Int'l L.Rep. 400 (Federal Social Court, FRGermany: 1985) at 403; and von Glahn, The Occupation of Enemy Territory: A Commentary on The Law and Practice of Belligerent Occupation at 28-29 (1957). 12 Hereinafter the Hague Regulations, reproduced in Roberts and Guelff, eds., Documents on the Laws of War (1989, 2nd edn). 13 Oppenheim-Lauterpacht, supra, note 11, 436.

14 90 Int'l L.Rep. 400, at 403 and 404 15 von Glahn, supra, note 12, at 257. 16 Article X.5 provides: For the purpose of this Agreement, "Israeli military forces" includes Israeli Police and other Israeli secur- ity forces. 17 Article XX.5 provides: For the purpose of this Agreement, "Israelis" also includes Israeli statutory agencies and corporations reg- istered in Israel.

18 The Legal Adviser to the Israeli Ministry of Foreign Affairs is of the opinion that, under the Declaration of Principles, "the Palestinian Council will not be independent or sovereign in nature." Moreover: "[T]he military government will continue to be the source of authority for the Palestinian Council and the powers and responsibilities exercised by it in the West Bank and Gaza Strip." Singer, supra, note 4.

19 Singer sees the exclusion of foreign relations capacity as crucial in denying Statehood to the Palestinian entity pending the outcome of permanent status negotiations; see Singer, Aspects of Foreign Relations under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and Gaza, 28 Israel L. Rev. 268 (1994), at 269-273. A version of this article is available at . 20 An extended analysis of water rights in the Occupied Territories under the regime of belligerent occupa- tion which takes into account the relevant provisions of the Cairo and Oslo II Agreements may be found in my paper entitled Natural Resources and Belligerent Occupation: Mutation through Permanent Sove- reignty which is to be published in Bowen, ed., The Occupied Territories: Human Rights Protection and Political Change (forthcoming 1996). 21 For instance, see Amon et al v Attorney-General et al (HC 507/72) 9 Israel Y.B. Hum.Rts. 334 (1979), at 336; Ayub et al vMinister of Defence et al (HC 606/78)2 Palestine Y. B. Int'l L. 134 (1985); the Elon Moreh case, 1 Palesinte Y. B. Int'l L. 134 (1984); and Affo v Commander Israel Defence Force in the West Bank (HC 785/87) 83 Int'l L.Rep. 122 at 165. For an overview of the High Court's jurisprudence, see Qupty, The Application of lnternational Law in the Occupied Territories As Reflected in the Judgments of the High Court of Justice in Israel, in Playfair, ed., International Law and the Administration Of Occupied Territories 87 (1992). 22 For instance, Ayub 9 Israel Y.B. Hum.Rts. 337 (1979), at 341; Elon Moreh id. 345 at 348; Affo 83 Int'i L.Rep. 122, at 150-151 and 165; and El Nazer et al v Commander of the Judea and Samaria Region et al (HC 285/81) 13 Israel Y.B. Hum.Rts. 368 (1983), at 369.

23 The French text reads: "L'autorit6 du pouvoir legal ayant pass6 de fait entre les mains de 1'occupant, cclui- ci prendra toutes les mesures qui dependent de lui en vue de r6tablir et d'assurer, autant qu'il est possible, l'ordre et la vie publics en respectant, sauf emp'echcmcnt absolu, les lois en vigeur dans le pays." 24 See von Glahn, Taxation under Belligerent Occupation, in Playfair, ed., International Law and the Adminis- tration of Occupied Territories 341 (1992), at 347 et seq and his Obiter Dictum on a tax judgment rendered by Israel's High Court in 4 Palestine Y. B. Int'l L. at 210 (1987/88); Greenwood, The Administration of Occupied Territory in International Law id. at 246; Playfair, Playing on Principle? Israel's Justification for its Administrative Acts in the Occupied West Bank, id. at 207; and Schwenk, Legislative Power of the Mili- tary Occupant under Article 43, Hague Regulations, 54 Yale L.J. 393 (1944-45), at note 1 and at 398. 25 See Schwenk, supra, note 24, at 393 note 1 and 398. 26 See Greenwood, supra, note 24, at 246. 27 Playfair, supra, note 24, at 207: see also Schwenk, supra, note 24, at 399-400. 28 Greenwood, supra, note 24, at 247. 29 For instance, von Glahn, supra, note 11, at 96-97; and Schwenk, supra, note 24, at 399 et seq. The Israeli High Court's interpretation of Article 43 has been criticised on the ground that it attenuates unduly the restrictions placed on legislative competence, substituting administrative convenience for the criterion of necessity; see Playfair, supra, note 24, at 211 et seq; Qupty, supra, note 21, at 91 et seq. On the other hand, Cassese finds merit in the approach adopted by the High Court; see Cassese, Powers and Duties of an Occupant in relation to Land and Natural Resources, in Playfair, ed., International Law And The Administration Of Occupied Territories 419 (1992) at 423 et seq; and see also Singer, supra, note 19, at 275-277. Singer's exegesis of Article 43 ignores the point that only factual authority, but not sovereignty, passes to the occupant. t.

30 Schwenk, supra, note 24, at 400. 31 Cassese, supra, note 29, at 426-427; von Glahn, supra, note 24, at 349; Greenwood, supra, note 24, at 263; Roberts, supra, note 7, at 33-34; and Schwenk, supra, note 24, at 401. 32 von Glahn, supra, note 11, at 99. 33 The relevant Israel Defence Force Orders are reproduced 5 Palestine Y.B. Int'l L. 346 (1989), at 348 et seq. 34 On the changes in general, see Dichter, The Legal Status of Israel's Water Policies in the Occupied Territo- ries 35 Harv.Int'l L.J. 565 (1994) at 570-572, 579-581; Dillman, Water Rights in the Occupied Territories, 19 J.Palestine Stud. 1 46 (1989) at 52-53; Musallam, Israeli Water Policies in the West Bank, 1967-90: A Cri- tigue (unpublished MA dissertation, University of London, 1990) at 12-13; Rowley, The West Bank: Native Water-resource Systems and Competition, 9 Pol.Geography Q. 39 (1990) at 48-49; Shehadeh, Occupier's Law: Israel and the West Bank 153-154 (rev.ed. 1988); World Bank, Developing the Occupied Territories: An Investment in Peace. Vol. 5: Infrastructure 46-47 (1993); and UN Committee on the Exercise of the Ina- lienable Rights of the Palestinian People, Water Resources of the Occupied Palestinian Territory, [herein- after UN Palestine Committee], A/AC.183/- (1992), at 36-43. 35 This results from the combination of the definition of "The Water Provisions" and of "Officer in Charge" in Article 1, and the specification of his powers in Article 2; see 5 Palestine Y.B.Int'l L. (1989) at 348-349. 36 Article 1 defines the "Prescribed Day" as 7 June 1967, id. at 348. 37 Id. at 350.

38 !d. at 351. 39 Mekoroth is one of the main institutions that comprise the Israeli Water Commission Administration. It is a corporation owned jointly by the Israeli government, Histadrut (the national trade union movement), the Jewish Agency and the Jewish National Fund. See Dellapenna, Water in the Jordan Valley: The Poten- aal and Limits of Law, 5 Palestine Y.B.Int'l L. 15 (1989) at 34; Dillman, supra, note 34, at 54; Musallam, supra, note 34, at 15-16; and UN Palestine Committee, supra, note 34, at 42. 40 See Dichter, supra, note 34, at 571; Musallam, supra, note 34, at 13; Rowley, supra, note 34, at 43; World Bank Report, supra, note 34, at 46-47; UN Palestine Committee, supra, note 34, at 22-23, 41-42. 41 See Dichter, supra, note 34, at 572; Dillman, supra, note 34, at 52-53; and UN Palestine Committee, op cit note 34, at 40-41. 42 Reproduced 5 Palestine Y.B.Int'l L. (1989) at 359 et seq. Before the promulgation of Order No. 498, the governing law was Order No. 360 of 1 November 1970. This re-issued, in an amended form, the Safeguard- ing of Public Water Supplies Ordinance which was first enacted by the British High Commissioner for Pal- estine in 1937; see id. at 368 note 7. 43 Article 1, id. at 360.

44 Id. at 359. 45 Id. at 360. 46 Id. at 363. 47 Id. at 364. 48 Id. at 365. 49 Article 28, id. at 366.

50 UN Palestine Committee, supra, note 34, at 37. 51 For a comparison of the institutional arrangements under pre-occupation and occupation law, see, in par- ticular, the commentary contained in the editorial notes appended to the relevant Israeli military orders in 5 Palestine Y.B.Int'l L. (1989) at 348 et seq. 52 HCJ 337/71 in 2 Israel Y.B. Hum.Rts. 355 (1972). 53 UN Palestine Committee, supra, note 34, at 23. 54 See Jerusalem District Electricity Company, Ltd v (a) Minister of Energy and Infrastructure, (b) Command- er of the Judea and Samaria Region (HC 351/80) 11 Israel Y.B. Hum.Rts. 354 (1981) at 357; and Green- wood, supra, note 24, at 260. The integration of the utility services of the Occupied Territories and Israel must be distinguished from plans under discussion in the multilateral track of the Middle East Peace Process to integrate regional electricity grids. States are free to consent to the integration of utilities as an exercise of their sovereignty whereas integration was imposed on the Occupied territories. On the proposed regional integration of electricity grids, see Israel Foreign Ministry, The Multilateral Middle East Peace Talks: Update following the Fourth Round, October-November 1993 (1993), . It has been estimated that integration would save Israel $700 million per year; see Briefing by Deputy For- eign Minister Yossi Beilin, 8 December 1993 (1993), . Interconnection of the Israeli-Jordanian electricity grids in the Eilat-Aqaba area is provided for in Article 19 of the 1994 Israel-Jordan Treaty of Peace, 34 I.L.M. 43 (1995) at 52. This is also reproduced at the menu.

55 A different regime applies to privately owned property. For analyses, see von Glahn, supra, note 11, Chap- ters 13,14 and 16. 56 For accounts of the doctrine in Roman law, see Buckland, A Textbook of Roman Law from Augustus to Justinian 269 et seq (Stein, ed., 3rd ed., 1963) and Nicholas, An Introduction to Roman Law 144 et seq (1962). 57 Feilchenfeld, The International Economic Law of Belligerent Occupation 55 (1942); von Glahn, supra, note 11, at 176-177; and Oppenheim-Lauterpacht, supra, note 11, at 397-398. 58 Feilchenfeld, supra, note 57, at 56; von Glahn, supra, note 11, at 177 note 4; Oppenheim-Lauterpacht, supra, note 11, at 619 note 1; and Schwarzenberger, supra, note 10, at 313. 59 1940 Manual - Hackworth, Digest of International Law, vol.6 (1943), at 412; 1956 Manual - Whiteman, Digest of International Law, vol.10 (1968), at 576.

60 Administrvtion of Waters and Forests v Falk, 4 Ann.Dig. 563 (1927-28). See also Roushdy, Egypt's Rights over Oil Resources under the Rules of Belligerent Occupation, 36 R.Egyptienne D.D.I. 101 (1980), at 114-115. 61 Emphasis added. 62 Cristescu, The Right to Self Determinvtion: Historical and Current Development on the Basis of United Nations Instruments, E/CN.4/Sub.2/404/Rev.l (1981) at 78, para.464. At 71 et seq, para.438 et seq, Cristescu elaborates in detail the development of the doctrine of permanent sovereignty within various UN fora; see also Sloane, Study of the Implications, under International Law, of The United Nations Resolutions on Per- manent Sovereignty Over Natural Resources, on the Occupied Palestinians and Other Arab Territories, and on the Obligations of Israel Concerning its Conduct in These Territories, A/38/262 and E/1983/85 (1983), reproduced 5 Palestine Y.B.Int'1 L. 369 (1989), at 370 et seq, para.l et seq. On the linkage between permanent sovereignty and self-determination, see also for instance, Guinea-Bis- saulSenegal arbitrvl award (1989) 83 Int'l L.Rep. 1 at 24, para.37; Brownlie, Legal Status of Natural Resources in International Law (Some Aspects), 162 Receuil des cours 253 (1979-1), at 255-256; and Gros-Espiell, The Right to Self Determination: Implementation of United Nations Resolutions, E/CN.4/Sub.2/405/Rev.l (1980), at 26, paras.136 and 138. 63 Birnie and Boyle, International Law and the Environment at 113-114 (1992).

64 See for instance, Libyan American Oil Co v Libya (1977) 62 Int'l L.Rep. 140 at 187 et seq [Liamco]; Texa- co Overseas Petroleum ColCalifornia Asiatic Oil Co (Topco) v Libya 17 I.L.M. 1 (1978) at 27 et seq [Topco]; Sedco Inc v National Iranian Oil Co and the Islamic Republic of Iran 84 Int'l L.Rep. 484 [Sedco], Interlocutory Award of 27 March 1986, 521 at 525 et seq; Brownlie, supra, note 62, at 261 et seg; and Cris- tescu, supra, note 62, at 71 et seq, para.438 et seq. 65 See Liamco 62 Int'l L.Rep. 140 at 189; Topco 17 LL.M. 1 (1978) at 30; Sedco 84 Int'l L.Rep. 484, 521 at 526 and 527; and Government of Kuwait vAmerican Independent Oil Co (1982) 66Int'1 L.Rep. 518 at 588. 66 The customary status of permanent sovereignty is so entrenched in international legal thought that it is difficult to find authority for this specific proposition, but see Intemational Association of Machinists and Aerospace Workers v OPEC (US District Court, District of California: 1979) 63 Int'l L.Rep. 284 at 291- 292 ; Birnie and Boyle, supra, note 63, at 113; Cristescu, supra, note 62, at 78, para.465; and Sloane, supra, note 62, at 373, para.I2.

67 On the Martens Clause, see Detter de Lupis, The Law of War at 326-329 (1987); Miyazaki, The Martens Clause and International Humanitarian Law, in Swinarski, ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet at 433 (1984); Singh And McWhin- ney, Nuclear Weapons and Contemporary International Law 46 et seg (2nd rev. edn. 1989); and Strebel, Martens Clause, in Bernhardt, ed., Encyclopedia of Public International Law (1982) vol. 3, at 252. 68 Miyazaki, supra, note 67, at 436-437; Singh and McWhinney, supra, note 67, at 46-47; and Strebel, supra, note 67, at 252. 69 In re Krupp (1948) 15 Ann.Dig. 620 at 622.

70 Cristescu, supra, note 62, at 78, para.466; and see also Sloane, supra, note 62, at 374, para.15. 71 In Gaza, Military Order No.498 first introduced a comprehensive regulatory system, therefore recourse must be made to permanent sovereignty over aquifers. 72 Compare Dichter, supra, note 34, at 582. 73 For technical accounts of the hydrology of the West Bank and Gaza, see Schwarz, Water Resources in Judea, Samaria, and the Gaza Strip, in Judea, Samaria and Gaza: Views on the Present and Future 81 (Ela- zar ed. 1982); and W.Asia E.S.Comm., supra, note 1, at 9-11. 74 See Dellapenna, supra, note 39, at 21; Dichter, supra, note 34, at 570; Schwarz, supra, note 73, at 87-88; and World Bank, Developing the Occupied Territories, An Investment in Peace. Vol.4 : Agriculture (1993), Annex 2, at 53.

75 Dellapenna, supra, note 39, at 19. UN Palestine Committee, supra, note 34, states at 10: An annual report of the Bank of Israel indicates that 37 per cent of Israel's water supply comes from the Jordan River and Lake Tiberias, 38 per cent from two large aquifers and 25 per cent from other small aquifers below the West Bank and Israel. 76 Statistics on this point vary: Dichter, supra, note 34, at 569 claims 14-18 % of the annual water resources is made available for the West Bank Arab population; Rowley, supra, note 34, at 43 cites a claim that the water potential of the West Bank is exploited in a ratio of 4.5% to the West Bank and 95.5% to Israel; the World Bank Report, supra, note 74, Annex 2, at 54 claims 15-20 % of the annually available water is used by West Bank Palestinians; and the UN Palestine Committee, supra, note 34, at 6 claims that only 5% of transboundary water resources originating in the West Bank is used by Palestinians and at 55 that, of all the fresh water resources originating in the Occupied Territories, over two-thirds is consumed in Israel or in Israeli settlements in the West Bank and Gaza. 77 Dellapenna, supra, note 39, at 30; Dichter, supra, note 34, at 568; Dillman, supra, note 34, at 47; Musallam, supra, note 34, at 11; Rowley, supra, note 34, at 43; and World Bank Report, supra, note 74, Annex 2, at 54. 78 In 1980 Schwarz (supra, note 73, at 93) warned: "Continued over-pumpage is likely to cause saline water intrusion to the main pumpage areas of the aquifers, particularly in the plains adjoining Judea and Samaria." For a clear non-technical account of saline intrusion, which causes permanent damage to aquifers, see Pearce, Wells of Conflict on the West Bank, New Scientist (1 June 1991) at 36-38. See also Musallam, supra, note 34, at 6-7; UN Palestine Committee, supra, note 34, at 29 and 63-64. 79 See generally Dellapenna, supra, note 39, at 32 et seq; Dillman, supra, note 34, at 55 et seq; UN Palestine Committee, op cit note 34, at 3, 27 et seq, and 55 et seq; and W.Asia E.S.Comm., supra, note 1, at 22-23. 80 Statistics on per capita water consumption vary: see Dichter, supra, note 34, at 569-570, especially at 570 note 28; Dillman, op cit note 34, at 47-48; Musallam, supra, note 34, at 14; UN Palestine Committee, supra, note 34, at 34 and 57-58; and W.Asia E.S.Comm., supra, note 1, at 4, Table 1. 81 Dichter, supra, note 34, at 571; Dillman, supra, note 34, at 55-56; Musallam, supra, note 34, at 16-17; Row- ley, supra, note 34, at 46-48 provides specific examples; Shehadeh, supra, note 34, at 154; and UN Palestine Committee, supra, note 34, at 31 et seq. 82 Dichter, supra, note 34, at 572; Dillman, supra, note 34, at 56-58; Musallam, supra, note 34, at 17; Rowley, supra, note 34, at 49; Shehadeh, supra, note 34, at 154; UN Palestine Committee, supra, note 34, at 28-31; and W.Asia E.S.Comm., supra, note 1, at 21, para.55. The deleterious effect is generally attributed to the drilling of deep wells to supply settlements: Rowley, supra, note 34, at 43-45 explains their hydrological impact.

83 UN Palestine Committee, supra, note 34, at 3. 84 Dellapenna, supra, note 39, at 35 states: "One estimation has found that the entire increase in water con- sumption in Israel since 1967...can be accounted for only in this fashion." See also id. at 29; and Dichter, supra, note 34, at 571; Dillman, supra, note 34, at 59; and UN Palestine Committee, supra, note 34, at 6, 8-9, 55, and 58. 85 UN Palestine Committee, supra, note 34, at 63-64: notes omitted. See also Dillman, supra, note 34, at 57-58; and Schwarz, supra, note 73, at 93. 86 See Dichter, supra, note 34, at 571; Dillman, supra, note 34, at 53; and UN Palestine Committee, supra, note 34, at 8 and 55. 87 Since the beginning of the intifadah in 1987, the Israeli authorities lost control of the drilling of new wells and about 1500 new wells have been sunk; see Kuhail and Zoarob, Potable Ground Water Crisis in the Gaza Strip (1987-1994) (1994) at 1 and 38. This is the first comprehensive analysis of the water quality of the sixty drinking water wells supplying Palestinians in Gaza, id. at 3-4. 88 See Schwarz, supra, note 73, at 96 (hydrology), and UN Palestine Committee, supra, note 34, at 61 (water use). 89 Kuhail and Zoarob, supra, note 87, at 2-3; and Schwarz, supra, note 73, at 95-96.

94 World Bank Report, supra, note 74, Annex 2, at 54, and supra, note 34, at 52; and UN Palestine Commit- tee, supra, note 34, at 61-62. However, in relation to Gaza, Annex Ill (Protocol concerning Civil Affairs), Schedule 11, Article 3 of Oslo II provides, in part: All pumping from water resources in the Settlements and the Military Installation Area shall be in accor- dance with existing quantities of drinking water and agricultural water. Without derogating from the powers and responsibilities of the Council, the Council shall not adversely affect these quantities... 93 Dichter states that extraction by Israeli settlements has been estimated at between 4% and 23-46% of the annual total water use in Gaza - supra, note 20, at 573. See also Kuhail and Zoarob, supra, note 87, at 2; and UN Palestine Committee, supra, note 34, at 8, 28, 55 and 60-62. Petch, supra, note 91, comments at 67: Major new wells in the West Bank and Gaza areas have been exclusively for Jewish use. In 1984 there were estimated per capita consumptions in Gaza of 2,000m3 for the Jewish and 115m3 for the Arab popu- lation. The disparity is less in the West Bank but is still in the ratio of 4:1. 92 Schwarz, supra, note 73, at 96: see also Kuhail and Zoarob, supra, note 87, at 1. 91 See Dichter, supra, note 34, at 572; Kuhail and Zoarob, supra, note 87, at 40; Petch, Water in Israel and the Occupied Territories, in Altered States? Israel, Palestine and the Future note 65 at 68 (N.Berschorner and StJB Gould eds. 1991); Schwarz, supra, note 73, at 99-100; World Bank Report, supra, note 74, Annex 2, at 54; UN Palestine Committee, supra, note 34, at 63; W.Asia E.S.Comm., supra, note 1, at 9, para.26 and 23, para.59.d. The Israeli Development Options Version IV (August 1995), , is an update of a document submitted to the October 1994 Casablanca Economic Summit and forms part of Israel's preparatory work for the Amman Conference. It states that, due to over-pumping, seawater has intruded 1.5 km into the coastal aquifer in the Gaza Strip with the result that roughly 60% of the regional water supply now contains more than 400 mg/l of salt; see . 90 Al-Agha, Water Crisis in the Gaza Strip: Problems and Solutions, unpublished paper presented to the European Association for Middle East Studies Conference, July 1993, University of Warwick, at 4; and Schwarz, supra, note 73, at 95.

95 Kuhail and Zoarob, supra, note 87, at 13. At 10 the World Health Organisation standards are set out and at 13 et seq they give the results of their analysis for each specific contaminant. In particular, no wells in Gaza meet the standards on nitrate contamination (at 15) and alkalinity (at 26), and only 10.34% meet the standard for hardness, with none in Gaza City passing this test. 96 Al-Agha, supra, note 90, at 5 el seg; at 2, he claims that roughly 80% of groundwater in Gaza is harmful for human and animal consumption; Dillman, supra, note 34, at 58; Kuhail and Zoarob, supra, note 87, at 40 note that the nitrate contamination of groundwater is mainly due to sewage infiltration; Musallam, supra, note 34, at 6 and 8; Petch, supra, note 91, at 68; Schwarz, supra, note 73, at 96-100; World Bank Report, supra, note 74, Annex 2, at 54, and supra, note 34, at 49; and UN Palestine Committee, supra, note 34, at 6 and 62-63. 97 Greenwood, supra, note 24, at 247.

98 Israeli National Section of the lnternational Commission of Jurists, The Rule of Law in the Areas Adminis- tered by Israeli at 59-60 (1981). 99 In particular Orders No. 158 (30 October 1967) and 291 (19 December 1968); see the editorial commentary at 5 Palestine Y.B.Int'l L. (1989) at 351 et seq. The methods of acquisition of territory for settlements is a matter beyond the scope of this paper and have received scholarly attention elsewhere - for instance, by Cassese, supra, note 29, passim. A more sustained analysis is Shehadeh, The Law of the Land: Settlements and Land Issues under Israelis Military Occupation (1993). 100 The Christian Society for the Holy Places v Minister of Defence (HC 337171) 2 Israel Y.B. Hum.Rts. 354 (1972). 101 Id., at 355.

102 El Nazar et al v (a) Commander of the Judea and Samaria Region, (b) Administrator of Governmental Property, (c) Chairman of the Objections Committee (HC 285/81) 13 Israel Y.B. Hum.Rts. 368 (1983). 103 Id. at 369. 104 Article 49 provides: "If, in addition to the taxes mentioned in [Article 48], the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army of or of the administra- tion of the territory in question." On an occupant's powers to tax, see von Glahn, supra, note 24, passim. Taxation became a contentious issue in the Occupied Territories as a result of the application of Israeli value added tax legislation. The Israeli High Court held this to be legitimate; see the Value Added Tax case (Abu Aita et al v Commander of the Judea and Samaria Region et al and Kanzyl v Commander of the Gaza Strip Region et at) 13 Israel Y.B.Hum.Rts. 348 (1983) and 4 Palestine Y.B.Int'l. L. 186 (1987-88). The latter gives a fuller account of the single judgment delivered in these joined proceedings, and is fol- lowed (at 210) by von Glahn's commentary on the case, entitled Obiter Dictum: An Unofficial Expression of Opinion on the VAT Case Judgment. An early account of taxation policy, prepared by a senior staff officer in the Israeli Advocate General's Department, made it clear that the aim of the Military Administration was, inter alia, to integrate the economies of the Occupied Territories into that of Israel; see Shefi, Taxation in the Administered Territo- ries 1 Israel Y.B.Hum.Rts. 290 (1971).

105 Dig.U.S.Prac.Int'1 L. 1977 at 924.

106 Hereinafter, for the sake of convenience, references to provisions of Annex III, Appendix I will simply be to the specific article in issue. 107 This recognition was first recorded in an agreement signed on 24 August 1995 by the Israeli Agriculture Minister Ya'akov Tsur and the chief Palestinian negotiator Abu Alia. See the Israel Line report of 25 August 1995, prepared by the Consulate General of Israel in New York, at . 108 Article 40.11: the functions of this Committee are amplified in Article 40.12-15 and in Schedule 8.

110 Article 40.14. 109 Article 40.12.

111 See, for instance, Birnie and Boyle, supra, note 63, at 89 et seq; Hirsch, Environmental Aspects of the Cairo Agreement on the Gaza Strip and the Jericho Area, 28 Israel L.Rev. 374 (1994) at 378-379; Korbut and Baskin, Protection of Water Resources under lnternational Gaw in Butler, ed., Perestroika and Internation- al Law 197, at 201 (1990); and Weston, Falk and D'Amato, International Law And World Order 976 et seq (1980). 112 For an overview of the Middle East Peace Process which takes into account Oslo II, see Israel Foreign Minis- try, The Middle East Peace Process: An Overview (November 1995), . 113 Loc cit. This linkage has come to the fore in the Israel-Syria bilateral talks. The Israel Line news service reported on 31 January 1996: Syria will not discuss water issues during bilateral negotiations, but rather only in the framework of multi- lateral negotiations, said Syrian Information Minister Muhammad Salman...Salman said the water issue involves Syria, Jordan, Lebanon and Israel, and therefore should be discussed during multilateral negotia- tions, and not during current bilateral peace talks.

114 On these negotiations see, for instance, 25 July 1994 Washington Declaration, ; 26 October 1994 Israel-Jordan Treaty of Peace, 34 LL.M. 43 (1995) and 28 Israel L.Rev. 552 (1994). The text is also available on the menu. See also Israel Foreign Ministry, Completion of Signing of Israeli-Jor- danian Agreements (January 1996), . 115 Reproduced . 116 Articles 1.1 and 1.3 respectively. * See text of the Jordanian-Israeli Treaty, infra at 353 Ed., 117 Annex II, Article VII. 118 For an analysis of the water provisions of this Treaty, see Wenig, Water and Peace: The Past, the Present, and the Future of the Jordan River Watercourse: An International Gaw Analysis 27 New York J.Int'i L.&Pol'y 331 (1995). At 364, Wenig concludes that the Israel-Jordan Peace Treaty water regime "imple- ments the requirements of the principle of equitable utilization."

119 Paragraph breaks suppressed: Israel Foreign Ministry, The Environment in the Peace Process: The Multi- lateral Track (1995), . 120 On the legal status of soft law and gentlemen's agreements see, for instance, Aust, The Theory and Practice of Informal International Instruments 35 Int'l & Comp.L.Q. 787 (1986); Bothe, Legal and Non-Legal Norms - A Meaningful Distinction in International Relations? 11 Neths.Y.B. Int'l L. 65 (1980); Chinkin, The Challenge of Soft Law: Development and Change in lnternational Law 38 Int'i & Comp.L.Q. 850 (1989); Lauterpacht, Gentleman's Agreements in Internationales Recht und Wirlschaftsordnung: Festschrift fur F.A.Mann Zum 70. Geburtstag Am ll.August 1977 (Flume et al eds. 1977) at 381; Schachter, The Twi- light Existence bf Nonbinding International Agreements 71 Am.J.Int'l L. 296 (1977) and Non-Conventional Concerted Acts in Bedjaoui, ed., lntemational Law: Achievements and Prospects 265 (1991). 121 See Benvenisti, supra, note 4, at 554; Birnie and Boyle, supra, note 63, at 219 et seq; J.Bruhdcs, The Law of Non-Navigational Uses of International Watercourses 36, and 155 et seq (1993); and Wenig, supra, note 118, at 344 et seq. At its 1994 session, the International Law Commission [hereinafter ILC] submitted draft articles on the non-navigational uses of international watercourses to the UN General Assembly, and recommended that these form the basis of a treaty. In essence, these articles deal primarily with surface watercourses, defined as "a system of surface waters and groundwaters constituting by virtue of their physical relationship a uni- tary whole" (draft article 2). The fundamental principles embodied in these draft articles are equitable utilisation (draft article 5) and the obligation not to cause significant harm to other riparian States (draft article 7). See McCaffrey, The International Law Commission Adopts Draft Articles on International Watercourses, 89 Am.J.Int'1 L. 395 (1995). By resolution 49/52 (9 December 1994), the General Assembly decided to accept the ILC recommendation to draft a convention; see id. at 403; and Rosenstock, The Forty-Stxth Session of the International Law Commission, id., 390 at 392.

122 McCaffrey, supra, note 121, at 402-403. 123 See, for instance, Birnie and Boyle, supra, note 63, at 114 et ten Fox, Joint Development of Offshore Oil and Gas (1989); Lagoni, Oil and Gas Deposits across National Frontiers 73 Am.J.Int'l L. 215 (1979); Miyo- shi, The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf, 3 Int'l J.Coastal & Estuarine L. 1 (1988); and Onorato, Apportionment of an International Common Petroleum Deposit 17 Int'l & Comp.L.Q. 85 (1968). 124 Joint management has been advocated by a number of analysts, for instance by Benvenisti, supra, note 4, at 554; Dellapenna, supra, note 39, at 35 et seq, and the World Bank, supra, note 34, at 62. 125 See Israel Foreign Ministry, The Middle East Peace Process: An Overview (November 1995), . 126 See loc. cit. and Israel Foreign Ministry, Multilateral Working Group on Water Decides on Regional Pro- jects (June 1995), . The latter notes: "The Nether- lands is examining an investment of $7 million to build a dam in Nahal Besor/Wadi Aza, in order to enrich the Gaza Strip's aquifer."

127 This Declaration is available at . 128 deShazo and Sutherlin, Reassessing the Middle Eastern "Peace Pipeline" in the Aftermath of the Gaza-Jeri- cho Agreement (1994), . This provides the text of the article. To obtain the notes, substitute the final extension with , and with to obtain the bibliography. 129 See Reality and Rhetoric: David Makovsky Interviews Foreign Minister Shimon Peres, Jerusalem Post International Edition 8 (26 August 1995). 130 Government of Israel, Development Options Version IV (August 1995), .

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