33 ELR 10207 | Environmental Law Reporter | copyright © 2003 | All rights reserved

A Water Solution for the Middle East Conflict

Itzchak E. Kornfeld

Mr. Kornfeld is in private practice in Philadelphia, Pa. He received his J.D. from Tulane Law School and his B.S. (Geology) and M.A. (Geochemistry) from the Brooklyn College of the City University of New York. His area of concentration is environmental law and security of environmental resources. He is admitted to practice in Louisiana, New Jersey, and Pennsylvania. Mr. Kornfeld was previously with the U.S. Environmental Protection Agency and Texaco, Inc., where he addressed issues relating to drilling in the swamps of southern Louisiana, Mississippi, and along the eastern seaboard. He also teaches environmental law at a number of institutions, and has taught at Temple University's Beasley School of Law.

The author extends his thanks to Prof. David Hodas of Widener Law School (Wilmington) for early discussions on the subject and for his encouragement to publish this Article in the Environmental Law Reporter, to Prof. John Dernbach of Widener Law School (Harrisburg) for his advice, and to Maria L. Barracca and Evan Kornfeld for their observations and comments on early drafts of this manuscript. The author can be reached by e-mail at kornfeldgroup@aol.com.

[33 ELR 10207]

Introduction

The key issue is no longer resource development and water quantity but resource allocation and water quality.1

The United Nations (U.N.) has recognized that "water stands today as one of the most critical dangers, one of the most critical breakdowns of peace between nations. It has replaced the threat of war over oil."2 Urbanization, urban sprawl, climate change,3 and droughts worldwide4 are stressing groundwater systems and sources. There are "three main causes of the impending … water crisis"5:

1. Rapid urban population growth, increasing at the rate of 170,000 persons per day in developing countries [and hundreds per day in Arizona, California, and Florida];

2. Fifty percent of all potable water is being wasted or lost in the developed world [and much is lost in the developed world due to aging infrastructure and wastefulness]; and

3. Pollution, with over [two] million tons of human excrement and an ever-increasing volume of untreated discharge going into urban water supplies everyday [as well as nitrogen and phosphorous from fertilizers, fecal matter flowing into streams in the U.S. and internationally].6

Additionally, "in the developing world, more than 1 billion people do not have access to clean drinking water, and 1.7 billion people lack access to adequate sanitation facilities. The U.N. [notes] that dirty water causes 80 percent … of diseases in the developing world and kills 10 million people annually."7

Similarly, over the past few years the United States has seen farmers fighting for water with fishermen and environmentalists,8 and farmers in southern California's Imperial Valley fighting with adjacent cities for this most precious resource. Water has become a resource and strategic asset under stress and a cause for antagonism and turmoil. Accordingly, conflicts are developing in the United States and abroad over how much of the water pie each segment of daily life—people, industry, and agriculture—are entitled. This Article focuses on water resources in the Middle East's Jordan River Basin.

The Middle East's Inexorable Water Problem

The Middle East is "the most concentrated region of [water] scarcity in the world."9

As the Bush Administration, the European Union, and combatants flounder in the midst of the second Intifada—the most recent conflagration between Israel and the Palestinians—the Middle East is in the throes of a four-year-old record drought that has been wreaking havoc with the area's water resources. The current torridness has placed front and center the omnipresent issue of water apportionment between the region's disparate sovereigns and peoples. The problem, however, is not new. Nevertheless, it can serve as a case study for other water disputes and allocation schemes.

Since biblical times, the Middle East, specifically the Jordan River Valley, which comprises modern Israel, Jordan, Lebanon, Syria, and the West Bank,10 has been assailed by a profound shortage of water. A number of these events are [33 ELR 10208] chronicled in the Book of Genesis. The inaugural narrative details Abram's coming into the land from his homeland in Haran. "And there was a famine in the land; and Abram descended to Egypt to sojourn there, for the famine was severe in the land."11 Similarly, Lot, Abram's cousin, could not maintain his flocks due to lack of water.12 Likewise, Abraham's grandson, Jacob, and his sons persevered through a drought that afflicted the entire earth, and they too traveled to Egypt.13

Today, as was true for the past three millennia, this region has found itself strewn into the most constricted area of water scarcity in the world. Furthermore, due to mounting demands on the region's water resources in the late 20th and early 21st centuries, water remains a very precious commodity that cannot continue to support the current population or the ever-increasing one.

The Jordan River Basin

Current Sources of Water in the Jordan River Basin

The Jordan River Valley extends from the Golan Heights and Mount Hermon in the north to the Dead Sea in the south and includes Israel, Jordan, Lebanon, Syria, and the West Bank (see Table I). The river's "watershed drains 18,300 [square kilometers (km2)]"14 in these political entities and includes Lake Kinneret, also known as the Sea of Galilee.15 Eighty percent of the basin, however, is in Israel, Jordan, and the West Bank, which do not have other significant surface water sources, and have only limited groundwater resources.16 The physical geography of the Jordan River riparian states is quite varied. The northern mountains of Lebanon have precipitation levels that exceed 1,000 millimeters (mm) per year and receive large amounts of snow during the winter.17 Yet over 50% of the land areas in Israel, Jordan, and Syria consist of hot dry lands with precipitation levels below 250 mm per year.18 Jordan relies on the basin's surface waters for 75% of its water needs, while Israel relies on the surface water for only 30% of its water consumption because it has a larger aquifer from which to draw the remainder of its water requirements.19 And because the Euphrates River and other small basins fall within Syria's borders, it relies on the Jordan River Basin minimally.20 The combined renewable water resources for Israel and the Palestinians is 1.4 billion cubic meters per year (BCM/yr), "with an additional 450 [million cubic meters per year (mcm/yr)] captured by Israeli water reuse and rainwater collection for a total of about 2 BCM/yr."21 Not surprisingly, "a deficit of water exists between what is used and what is available in the environment. In 1994, Israel and the Palestinian territories used approximately 2.1 BCM[/yr] of water."22

Climatically, Gaza, Israel, and the West Bank range from subtropical in the northern Galilee to arid in the Negev, 300 miles to the south. Rainfall sweeps the gamut from a high of over 40 inches (1,000 mm)23 in the Galilee to a minimal 0.8 inches (20 mm) in the Israeli Negev city of Dimona, south of Be'er Sheba.24

Additionally, variations in rainfall develop over short distances. For instance, the Gaza Strip is barely 27 miles long from north to south, but annual rainfall fluctuates from 18 inches (440 mm) in the north, near Jabaliya, to 6 inches (150 mm) in the south near Rafah.25 Thus, recharge26 of the hydrologic system does not and cannot replenish the depletion of freshwater from surface and subsurface sources or from evaporation.

Moreover, like southern Israel and the Gaza Strip, Jordan is an arid country bereft of freshwater. Precipitation ranges from an excess of 600 mm per year along the Syrian border in the north to 300 mm per year in the south along the TransJordan Plateau, which rises steeply from the rift valley in the western portion of the country. Annual precipitation in the Jordan Valley (which contains the Jordan River) is less than 250 mm.27 In the southwestern portion of the country, in the environs of the Gulf of Aqaba, annual rainfall is less than 50 mm per year. "Overall, 80.6 percent of the country receives less than 100mm/annum [4 inches/year]."28

Lake Kinneret is the principal aboveground storage reservoir in the basin with a surface area of 170 km2 (102 square miles (miles2)) and a volume of approximately 4,000 MCM. In 2001, the Kinneret's water level had fallen to a depth of 4 to 6 meters deep, a drop of more than 213 meters below sea level.29 Water in Lake Kinneret derives from three sources just within Israel's border:

The Hasbani, rising in Lebanon with an average annual flow across the border of 125 MCM/yr, the Banias in the [33 ELR 10209] Golan Heights, averaging 125 MCM/yr, and the Dan, the largest spring at 250 MCM/yr and originating in Israel. The streams from these springs converge 6 [kilometers (km)] into Israel and flow south to the Sea of Galilee at 210 [meters] below sea level ….30

South of the Kinneret lies the confluence of the Jordan, Yarmouk, and Zarqa Rivers. The Jordan collects water from springs and intermittent tributaries along its 320-km trip to its terminus at the Dead Sea, which lies 410 meters below sea level. In addition, the Hasbani River, which lies entirely in Lebanon but is a source for tributaries that feed the Dan and Banias Rivers, is an indirect source of the Jordan.31

The Yarmouk forms the border between Jordan and Syria. It has tributaries in both Jordan32 and Syria33 and enters Jordan 10 km south of Lake Kinneret. The Yarmouk supplies 425 MCM of water to the basin.34 "Syria is constantly constructing storage reservoirs on the Yarmouk, which directly reduce the discharge of the river remaining for Jordan and Israel (the natural flow of the river is reduced from around 450 MCM to 270 before it reaches the Jordanians and Israelis)."35 Due to a paucity of storage capacity on the Yarmouk River, "an estimated 60-150 MCM/yr of winter floods still flow unused to the Dead Sea via the Lower Jordan."36 During the 1950s some 1,400 MCM/yr of water was emptied into the Dead Sea; today only 250-300 MCM/yr flow into the Dead Sea, however this flow is exceptionally saline.37

The Zarqa River's headwaters and its flow do not cross any national border and are entirely in Jordan.38 It has an annual median volume of about 50 MCM.39 The river is believed to be the biblical Jabbok (or Yabok) River.40 Along with numerous springs,41 the Zarqa discharges 322 MCM/yr into the Jordan.42 Both the capital city of Amman and the city of Zarqa enjoy the river's flow.43 The Zarqa is the third largest river in the Jordan River Valley, exceeded only by the Jordan and the Yarmouk.44 The river's watershed is about 3,900 km2.45

In aggregate, "Israel diverts 640 MCM/yr from the entire Jordan River Basin. Syria diverts approximately 170 MCM/yr from the Yarmouk River, and Jordan receives 140-150 MCM/yr from the Yarmouk basin and 40 MCM/yr from the Lower Jordan. The West Bank does not receive any water from the Jordan [River Basin]."46 Any agreement involving water resource apportionment in the Middle East would govern surface water from the Jordan River, Lake Kinneret, and the Yarmouk River, as well as the Hasbani, Litani, Dan, and Banias Rivers.

Subsurface or Groundwater Resources

Subsurface water sources in Israel and the West Bank include the Yarkon-Tanninim or Mountain Aquifer, the Coastal Aquifer, and the Gaza Aquifer.

The Yarkon-Tanninim/Mountain Aquifer47

In June 1967 during the Six Day War, Israel acquired East Jerusalem and the West Bank from Jordan. In so doing, Israel now controls the entire Yarkon-Tanninim Aquifer, which is a plentiful source of groundwater, providing one-third of its potable water supply.48 The Yarkon-Tanninim Aquifer "lies primarily under the West Bank and consists of three basins: (1) the west; (2) northeast; and (3) east. [Eighty-three] percent of the recharge areas for these basins lie within the West Bank."49 This subsurface source is thought to provide over 3.2 million gallons per day (MGD). This figure, however, may be overly optimistic.50

The Coastal and Gaza Aquifers

The Coastal Aquifer extends below the Mediterranean seashore in Israel and the Gaza Strip. Its northern reach is in the Israeli city of Haifa and the aquifer's southern boundary lies near Rafah in Gaza. The aquifer covers an area of 2,200 km2 (1,320 miles2), of which 400 km2 (240 miles2) lies beneath Gaza.51 However, the Gaza portion is independent of the Israeli section because of the Coastal Aquifer's east-west direction of water flow. The Coastal Aquifer's estimated water yield is 250 MCM/yr, and that of the Gaza Aquifer is 55-65 MCM/yr.52 Nevertheless, "total well output amounts to 120 MCM per year, twice the safe yield."53

The total water resources and reuse in MCM/yr is shown below in Table I.54

[33 ELR 10210]

Table I

Water Asset(NEW COLUMN)Annual(NEW COLUMN)Israeli(NEW COLUMN)Settler(NEW COLUMN)Palestinian(NEW COLUMN)Total Water

(NEW COLUMN)Recharge(NEW COLUMN)Water Use(NEW COLUMN)Water Use(NEW COLUMN)Water Use(NEW COLUMN)Use

Mountain Aquifer(NEW COLUMN)362(NEW COLUMN)344(NEW COLUMN)10(NEW COLUMN)22(NEW COLUMN)376

(west)

Mountain Aquifer(NEW COLUMN)145(NEW COLUMN)103(NEW COLUMN)5(NEW COLUMN)30(NEW COLUMN)138

(northeast)

Mountain Aquifer(NEW COLUMN)172(NEW COLUMN)40(NEW COLUMN)35-50(NEW COLUMN)69(NEW COLUMN)144-159

(east)

Coastal Aquifer(NEW COLUMN)250(NEW COLUMN)260(NEW COLUMN)0(NEW COLUMN)0(NEW COLUMN)260

Gaza Aquifer(NEW COLUMN)55(NEW COLUMN)0(NEW COLUMN)5-10(NEW COLUMN)110(NEW COLUMN)120

Jordan River(NEW COLUMN)1311(NEW COLUMN)685(NEW COLUMN)10-20(NEW COLUMN)0(NEW COLUMN)1334-1340

Wastewater Reuse(NEW COLUMN)450(NEW COLUMN)450(NEW COLUMN)0(NEW COLUMN)0(NEW COLUMN)450

Total(NEW COLUMN)2,745(NEW COLUMN)1,882(NEW COLUMN)65-100(NEW COLUMN)231(NEW COLUMN)2,822-2,843

The Clash Over Jordan Valley Water

The extreme scarcity of water in the Middle East [makes it] a key component in the pending conflict versus peace process ….55

The conflict over water in the region has been raging for over 80 years, beginning with the Balfour Declaration of November 191756 and the succeeding mandate over Palestine granted to Britain by the League of Nations in 1922. Since then, conflict has raged and waned and raged again.

Israel and Jordan face a critical issue: each has more people than its respective available water supplies can support. Over the past two decades, both have found themselves in a state of chronic water scarcity. Similarly, Lebanon and Syria are barely managing their water budget; and both the Gaza Strip and the West Bank are also in a state of water deficit.57 Add to each of these jurisdictions the logarithmic expansion of population and the situation today is acutely more dire than it was during biblical times.

This is why Syria, since it lost the water-rich Golan Heights—the mountainous area in the northeastern corner of Israel and the southwestern portion of Syria—to Israel during the Six Day War in June 1967, has steadfastly fought for their return. Additionally, during negotiations in the 1930s through the mid-1950s between the Arab populations and Israel (or its pre-statehood Zionist fathers), the Golan Heights have always been part of any British or American plan allocating water resources among Jews and Arabs.58

Although recently the focus has been on the relationship between Israel and the Palestinians on the one hand, and to a lesser extent between Israel and Syria on the other, the water war has been slowly fomenting between others in the area.

Syria Versus Jordan

For a number of decades, Syria and Jordan have been embroiled over the building of a dam on their common border, the Yarmouk River. For example, since the Six Day War of 1967, Syria is reported to have built over 25 dams on the Yarmouk River in the area north and south of Izra—which lies approximately 70 km south of Damascus on the eastern flank of the Golan Heights—to capture water that is draining to the south. These dams divert water from use by Jordan.

Additionally, in 1987, Jordan and Syria signed the Unity Dam Agreement. Ten years later, in October 1997, the Syrians demanded assurances from the Jordanians regarding a water diversion project that the Jordanians were co-constructing with the Israelis.59 A focal point of these discussions was a joint Israeli-Jordanian project that was to be constructed on Israeli territory captured from Syria during the 1967 Six Day War in the Al Hamaa (Hama) area (generally in the vicinity of the Golan Heights). Syria threatened to sabotage the project unless it received territorial "givebacks" from Israel.60 The Syrians sought these territorial givebacks because they had been seeking a return of the entire Golan Heights since 1967. However, in the end no territorial [33 ELR 10211] concessions were made because Israel objected to a World Bank grant to fund the dam's construction. Yet the Syrian ultimatum that it receive territorial givebacks from Israel demonstrates how intertwined and plaited the water situation is.

Lebanon Versus Israel

Israel is the recipient of water from the Dan and Banias Rivers, which flow across its border from Lebanon. They are fed by the Wazzani Springs. The Wazzani Springs are a tributary of the Hasbani River and run for 40 km in Lebanon before crossing the Israeli border and joining with the Banias and Dan Rivers where they then drain into the Jordan River. Lebanon, therefore, is an upper riparian of the Hasbani and its tributaries, whereas Israel is a lower riparian.

In March 2001, Lebanon laid a four-inch wide pipeline and installed a pump at the source of the Wazzani River in order to provide water to residents of a nearby village.61 That effort led to a harsh Israeli response, which included veiled threats that the diversion of water from the river could be a reason for war.62 Five months following the March pipeline installation, a Lebanese farmer placed a small pump on the Hasbani near the Israeli border in order to water his fields. Although the move was not made by the Lebanese government, it again drew heavy Israeli flak. The chairman of Israel's national water company, Mekorot,63 asserted at the time that disputes over water often led to war. Israel's ire stems from the fact that the Hasbani supplies between 20-25% of the water in Lake Kinneret, which is Israel's main source of drinking water.64

In early September 2002, Lebanon laid a new 16 km, 16-inch-wide pipeline (4 times the diameter of the 4-inch pipeline laid in March 2001) in order to provide 20 Lebanese villages with water. Israel has objected to the new pipeline and the diversion. Lebanon currently pumps approximately 7 MCM of water annually from the Hasbani and Wazzani Rivers. That quantity will rise to 9 MCM if the project is implemented.

On September 21, 2002, the Lebanese government rejected a request by the United States—who attempted to cool down the situation—to suspend work on the pipeline. That act sparked a fresh dispute between the two already hostile neighbors. In turning down the request, Lebanese Prime Minister Rafik Hariri stated his government's position that the decision to begin pumping water from the Wazzani Springs was final and irreversible. In response, Israel's Prime Minister, Ariel Sharon, warned that the project constitutes grounds for war. Both sides claimed that their position was legitimate based on a water allocation plan produced by U.S. Ambassador Eric Johnston in the early 1950s.65 However, that plan was never adopted. At the time this Article was written, the situation appeared to have no resolution, as neither side would back down. With the prospect that the United States will be going to war with Iraq, it has requested both Israel and Lebanon to arrest this dispute for now.

Nevertheless, on December 16, 2002, U.N. Secretary General Kofi Annan met with Shaul Mofaz, Israel's Minister of Defense. During the meeting the Wazzani pumping issue was raised. According to news reports, Secretary General Annan conveyed a Lebanese proposal "for the two countries to reach an agreement that would allow Lebanon to continue pumping water from the Wazzani Springs … but would introduce a meter to guarantee that the amount pumped would not exceed a certain level."66 Mofaz apparently told the Secretary General that the "proposal was unacceptable, on the grounds that Lebanon was attempting to make the suggestion seem to be a unilateral step."67 He did, however, urge the United States to work on resolving the impasse.68

Israel Versus Syria

As has been noted previously, Israel and Syria have had a running battle over water. Nevertheless, in 1995, Israel and Syria, hosted by the United States, embarked upon negotiations over water and territory. These negotiations ended abruptly as a result of violent terrorist acts in February and March 1996. No common position was reached prior to the cessation of negotiations.

Water Allocation Principles

According to recent estimates, the amount of water appropriated for various uses in society, out of the total volume that circulates in the hydrological cycle, is slightly more than 50% …. Overexploitation … of [water] is already noticeable, for instance, [in] the Middle East.69

Nine Decades of Unacceptable Water Allocation Plans

Numerous plans for water allocation of Jordan River Basin waters have been suggested over the past nine decades.70 One of the first proposals was the Franghia Plan for water management, introduced in 1913 by the Ottoman Turkish Empire. Due to World War I and the demise of the empire in 1917, the plan never got off the ground. In 1922, following the League of Nations' grant of a mandate over Palestine to Britain, the latter realized that water management and allocation were critical for the region.

Thus, in 1930, the British government commissioned Sir John Hope-Simpson to evaluate the potential for hydroelectric power and irrigation in Palestine. Hope-Simpson's focus was a quantification of the potential for Jewish immigration [33 ELR 10212] into Palestine, as well as the absorption capacity of the land for that immigration, without unduly effecting the then-existing Arab population. Unfortunately, his study did not adequately assess the region's hydrology, and therefore, was of little use.

A Flurry of Activity in the 1930s

During the 1930s, a number of allocation formulas were proposed. As ambitious as these allocation proposals were, however, none were accepted by both sides. Three of the more compelling ones are discussed below.

In 1937, a second survey of water resources—this time focusing specifically on the Jordan River Basin—was assigned to M. Ionides, a British employee of the Trans-Jordanian government. Ionides' survey concluded that at the time there were insufficient water resources in the Jordan River Basin to sustain a Jewish state. He also proposed a scheme of water diversion for the Yarmouk River that was later partially adopted by the Jordanian government.

Another plan was developed during the mid-1930s by the newly established Jewish Water Company, Mekorot, to supply water to western Galilee, the region that lies west of Lake Kinneret. This plan later became that company's first construction project.

Also in the mid-1930s, the United States commissioned an independent study by W.C. Lowdermilk of the U.S. Soil and Conservation Service. There have been suggestions that Zionists in the United States, who were alarmed by Ionides' report, pushed the American government to undertake the Lowdermilk study. Regardless of whether these suggestions are true or not, one of Lowdermilk's major contributions was creating a comprehensive plan for the development of water resources in the entirety of Palestine and for calculating the number of people, specifically Jewish refugees, that could be absorbed by the land.

The 1940s: More Activity

Some years later, the World Zionist Organization (WZO) enlisted James B. Hayes, an engineer who had worked for the Tennessee Valley Authority (TVA), to formulate a plan for development based on Lowdermilk's vision. Hayes accepted Lowdermilk's estimate of the absorption capacity of population in Palestine, and in 1948 he published his plan and a book, T.V.A. on the Jordan.71 His plan had seven elements, five of which included: (1) developing groundwater resources; (2) recovery of the Jordan River's winter flow for irrigation of the coastal plain in what is now Israel; (3) diverting the Yarmouk into the Sea of Galilee for storage; (4) developing the Upper Jordan River's summer flow in order to irrigate nearby lands, which included diverting the Hasbani River in Lebanon; and (5) using flood waters to irrigate the Negev, which lies south of Be'er Sheba in Israel.

Disagreements, however, remained regarding the number of people that the region could maintain, as well as the types of water projects needed to provide water to all of the inhabitants of the Jordan River Basin. The Lowdermilk Plan was shelved after the U.N. partition plan of 1947 and the subsequent Israel War of Independence in 1948, both of which set the stage for the inevitable conflicts over water for the next few decades.

The 1950s: Further Attempts

In 1952, the United Nations Relief and Works Agency (UNRWA) approached the TVA to develop a unified plan. The TVA, in turn, tasked the consulting firm of Charles T. Main, Inc., with producing a unified plan, combining the previous proposals. The Main Plan was based on irrigation by restricted flow within each river's watershed.72 Essentially, he borrowed the principal portions of the earlier Ionides proposal. Like the other plans, the Main Plan included draining of the Hula swamps,73 storage in the Sea of Galilee of Yarmouk River waters, a Med-Dead Canal proposal,74 and dams on the Hasbani and Yarmouk Rivers for both irrigation and hydro-power. President Dwight D. Eisenhower later based a number of his proposals to Israel and the Arab states on the Main Plan.

Meanwhile, Israel, feeling besieged by Arab forces all around it, began a unilateral development of the Jordan River in 1953. These efforts included construction of a national water carrier intake at a site in the demilitarized zone of the Sea of Galilee. Feeling that it could not, under hostile circumstances, negotiate a regional water plan, Israel undertook this action. In response, Syria moved troops to the border, and they opened artillery fire on the Israeli construction site. Syria also protested to the U.N., which resulted in a Security Council order that the work in the demilitarized zone be halted. Although the price for the national water carrier intake would double, Israel moved it to its shores of the Sea of Galilee. This move on Israel's part caused a temporary diffusion of regional conflict.

In 1953, with a lull in the hostilities, the U.S. Congress seized the moment and sought to resolve the post-1948 Palestinian refugee problem as well as the water issue. It flexed its muscle and pressured President Eisenhower to appoint a special ambassador to lead a mission focusing on a unified water development plan for the Jordan River Basin. President Eisenhower named Ambassador Johnston.

Ambassador Johnston employed the technical features of the Main Plan, later called the Johnston Plan,75 and presented a set of proposals to Israel and the Arab states. His hope was that these proposals would set the stage for future discussions for a unified development of the Jordan River. The Johnston Plan had five key elements, whose details would be hammered out in subsequent negotiations. These included: (1) use of the Sea of Galilee as a storage facility; (2) use of the River Jordan's waters and other watersheds, mainly in the southern portion of Israel, known as the Negev; (3) grafting of the Latani River onto the Jordan River Basin system; (4) setting of mutually favorable water quotas; and (5) international supervision of any project or projects. Since both Israel and the Arabs objected to the Main proposal, each submitted a counterproposal: (1) the [33 ELR 10213] Cotton/Hayes plan by the Jewish inhabitants of Palestine; and (2) the Arab Technical Committee Plan by the Arabs.

Johnston continued to mediate the water rationing throughout 1954 and 1955. In October 1955, he concluded his negotiations with a plan that was more favorable to Israel than the Main Plan. Israel's share rose from 394 MCM/yr of water in Main's original proposal to 565 MCM/yr, and Jordan's fell from 774 MCM/yr to 720 MCM/yr.

In submitting his proposal, Johnston advised President Eisenhower that each of the parties made it clear that the technical and engineering aspects of the plan were satisfactory to them. However, the plan was never implemented for two primary reasons: (1) Arab distrust of Israel; and (2) Israel's opposition to U.N. involvement on the grounds that the involvement was an infringement of its sovereignty. A summary of the allocation formulas for the four dominant plans is summarized in Table II.

Table II: Summary of Water Allocation Plans

Country(NEW COLUMN)Cotton/(NEW COLUMN)Arab Tech.(NEW COLUMN)Main Plan(NEW COLUMN)Johnston

(NEW COLUMN)Hayes Plan(NEW COLUMN)Comm. Plan(NEW COLUMN)(NEW COLUMN)Plan

Israel(NEW COLUMN)1,290 MCM(NEW COLUMN)200 MCM(NEW COLUMN)394 MCM(NEW COLUMN)565 MCM

Jordan(NEW COLUMN)575 MCM(NEW COLUMN)861 MCM(NEW COLUMN)774 MCM(NEW COLUMN)720 MCM

Lebanon(NEW COLUMN)450.7 MCM(NEW COLUMN)35 MCM(NEW COLUMN)___(NEW COLUMN)___

Syria(NEW COLUMN)30 MCM(NEW COLUMN)132 MCM(NEW COLUMN)45 MCM(NEW COLUMN)45 MCM

Total(NEW COLUMN)2,345.7 MCM(NEW COLUMN)1,228 MCM(NEW COLUMN)1,213 MCM(NEW COLUMN)1,330 MCM

Where Can They Go From Here?

The Johnston Plan is still viable, and during the Israel-Lebanon conflict over the Wazzani Springs, discussed above, both sides referred to the plan to support their respective view of whether the Wazzani Springs could be diverted. If the parties do not adopt the Johnston Plan, it appears that hereafter their only option for a Jordan River Basin allocation will have to be based on international water law. However, international water law, as a branch of international law, has no clear mandates or legal authority. There exists no international body that establishes or formulates water laws that are binding on all states. Albeit, a number of formulations do exist such as a state's customary practice, the actions of international tribunals, and writings of various legal institutions.76 Those standards, however, are binding on a state only if it has accepted the standard or if a particular practice is considered as general customary law. Moreover, if a state that considers itself injured is unwilling or unable to prove a violation of such a standard of conduct, and if one assumes that "no other state can or will bring the claim, that standard of conduct can be, and often is, violated with impunity."77

Although generally nonbinding on uninvolved states antecedent or former, actions of other states may afford a fundamental structure for germinating an international water allocation plan that all of the parties in the Jordan River Basin can accept.78

The Development of Equitable Principle of Water Use

Water has always been critical for human habitation. However, as populations have increased and the resource has come under greater pressure and, therefore, is more critical, there has been a concomitant evolution of both water law and international law governing water use between states.79 A myriad number of legal doctrines exist in the sphere of water allocation and utilization. The most common principle, encountered in international conventions, is the doctrine of equitable utilization.

The Doctrine of Equitable Utilization

Equitable utilization permits a waterway's water to be used by any riparian to the extent that its use does not harm other riparian countries. The principle has been interpreted to require all sides of a dispute to be flexible and base water requests on population and the needs and development of their societies and economies.80

[33 ELR 10214]

The doctrine of equitable utilization was first codified in the Helsinki Rules.81 The Helsinki Rules comprise the foundation for a majority of modern negotiations regarding nonnavigational uses of international watercourses.82 The doctrine provides: "Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of waters of an international drainage basin."83 There are 11 relevant factors that "are to be considered" under Article V of the Helsinki Rules.84

Notwithstanding that the Helsinki Rules are codified "they are not legally binding" on any party to a dispute.85 Moreover, there is a paucity of judicial analysis of what constitutes equitable utilization. Thus, "the principles in the rules have had few legal tests."86 Notwithstanding, the doctrine reflects the "norm of international law."87

The 11 factors in the Helsinki Rules' Article V could provide a means, or at least a first step, for water allocation between all of the riparians of the Jordan River Basin. However, each of the parties would need to feel that its interests are being met and that the process will be equitable and just.

A Model for a Unified Plan

In 1909, the United States and Great Britain, on behalf of Canada, entered into the Boundary Waters Treaty.88 The treaty's purpose is to delineate and settle the parties' rights, obligations, and interests in the Great Lakes and the rivers along their common border. In 13 short articles, Secretary of State Elihu Root and Ambassador James Bryce sought to limit the diversion of water, assure each country's rights of navigation, and curb pollution—a far-reaching concept for the early 1900s. The Boundary Waters Treaty's initial term was for 5 years, and it provided that notice of termination of the treaty was to be given within 12 months of the date a party sought to terminate. Ninety-three years later, the treaty is still in force.

To fix and regulate their rights and obligations, the treaty's signatories created the International Joint Commission (IJC). This body consists of six commissioners, three representing each government. The IJC has three dominant responsibilities: (1) To arbitrate specific disputes arising between the two governments; (2) to conduct studies of certain issues or problems at the request of either government; and (3) to approve applications for the diversion or obstruction of streams and rivers that affects the level or flow of the boundary waters.

Through the years, a host of agreements governing navigation and diversion of water have been adopted. Additionally, 23 years ago, the United States and Canada entered into an accord entitled the Great Lakes Water Quality Initiative. This bi-national agreement initiated the management of the Great Lakes as a complete ecosystem.

One of the stellar accomplishments in international law has been the IJC's ability to set aside partisan bickering in an effort to achieve protection over the entire water budget within its jurisdiction. Clearly, the contracting parties, Canada and the United States, were not in a state of conflict or hostility when they entered into the treaty. Nevertheless, with over 3,000 miles of common frontier and the many waterways the treaty governs—and the numerous possibilities for conflict—it is a tribute to the IJC that its work has been singularly successful and essentially unheralded by the public.

The joint commission arrangement—with its various enforcement mechanisms—has stood the test of time. Therefore, it should come as no surprise that in hammering out a settlement between Israel and Jordan, on the one hand, and a proposed settlement between Israel and the Palestinians on the other, the Clinton Administration adopted the joint commission concept from the U.S. arsenal of working treaties. However, there is a critical difference between the Boundary Waters Treaty and an accord governing the Jordan River Basin. While the Boundary Waters Treaty has only two parties, an accord governing the Jordan River Basin would be a multiparty agreement and would require a water allocation [33 ELR 10215] plan that meets each party's needs. Nevertheless, the Israel-Jordan and Israel-Palestinian accords demonstrate how fractious parties can arrive at meaningful allocation plans while employing the joint commission model.

The Israel-Jordan Peace Treaty

On October 26, 1994, Israel and Jordan signed a peace treaty.89 The agreement is comprehensive in that it addresses the mutual concerns of both states, including the allocation of water. The water agreement was the last issue to be worked out and it required many all-night meetings between the respective negotiators, Noah Kinarti for Israel, and Dr. Munther Haddadin for Jordan.

The water accord is embodied in Article 6 of the treaty, which sets out how each of the countries' water relations will proceed. Annex II addresses: "Water Related Matters." Each of the seven articles in Annex II deals with a specific issue.90

The accord also covers two distinct geographic areas: north and south. The northern facet includes the Jordan River from its confluence with the Yarmouk River (below the Sea of Galilee) to a point some distance to the south, where the Jordan River meets the northern border of the West Bank. The southern part includes the Dead Sea and extends down to the northern point of the Red Sea at Eilat, in Israel, and at Aqaba, in Jordan.

The parties agreed to a formula allocating water between them from the Yarmouk and Jordan Rivers. For example, the water allocation from the Yarmouk River is as follows: "Summer period—15 May to 15 October each year, Israel pumps (12) MCM and Jordan gets the rest of the flow." For the Jordan River's allocation: "In Winter, the period from October 16 to May 14 each year, Jordan is entitled to store for its use a minimum average of (20) MCM of the floods in the Jordan River south of its confluence with the Yarmouk."91

Article 6's opening statement demonstrates the breadth of the agreement, providing that it is "with the view to achieving a comprehensive and lasting settlement of all the water problems between them … the parties agree to mutually recognize the rightful allocations of both of them …." According to some reports, Israel and Jordan saw this agreement as a final one. However, the negotiators did not mean for it to be static. Anticipating future issues and the need for flexibility, they created a Joint Water Committee (JWC) as a permanent body. "For the purpose of the implementation of the Annex, the Parties … establish a [JWC] comprised of three members from each country."92 It is the JWC's charge to implement the treaty and to resolve all future water-related concerns.

Since Syria is a riparian of the Yarmouk, it is a significant force in any water allocation scheme. Construction of storage reservoirs and/or dams on the Yarmouk in Syria will critically impact the quantity of water discharging into remaining segments of the river in Jordan and Israel. Thus, any future agreements between Israel and Syria will significantly affect the flow of the Jordan River, causing a possible decrease in the allocation scheme between Israel and Jordan. Therefore, as in Johnston's day, a unified approach to sharing water, including Syria and Lebanon, appears to be the best alternative.

The Oslo II Israeli-Palestinian Water Agreement

The Israelis and Palestinians have yet to sign a peace treaty. Albeit, in September 1995, they signed an interim agreement, denominated as Oslo II.93 Article 40 of that accord's Annex III is entitled: "Water and Sewage."94 It was the first portion of the overall interim agreement to be concluded by the two sides.

The Palestinians artfully succeeded in including an explicit reference to "water rights," as opposed to the Jordanian's agreement that only addresses "water allocations." The agreement states: "Israel recognizes the Palestinian water rights in the West Bank. These will be negotiated in the permanent status negotiations and settled in the Permanent Status Agreement relating to various water resources."95

Acknowledging that, as in the case of Jordan, their water resources are in jeopardy, "both sides recognized the necessity [of] developing additional water resources [and] maintaining existing quantities of utilization from the resources in the sphere of water and sewage in their respective areas."96 Additionally, the signatories, recognizing that their water assets need to be guarded against pollution, agreed to take "all necessary measures to prevent harm to water resources, including those used by the other side."97 They also agreed to "treating, reusing or properly disposing of all domestic, urban, and agricultural sewage"98; "and to take all necessary measures to prevent any harm to the water and sewage systems in their respective areas."99

Echoing the Israeli-Jordan Peace Treaty's framework on setting "quotas" for future water needs, subarticles 7-10 address the Palestinian freshwater needs for domestic use. Both sides agreed, among other additional allocations, "that the future needs of the Palestinians in the West Bank are estimated to be between 70-80 MCM/year."100 Israel also committed to "additional suppl[ies] to Hebron and the Bethlehem area, including the construction of the required pipeline—1 MCM/year."101

As in the Israel-Jordan Peace Treaty, the parties agreed that "in order to implement their undertakings under this Article, the two sides will establish [a] permanent [JWC]."102 [33 ELR 10216] The JWC's function will be to "deal with all water and sewage related issues" including, inter alia: "Coordinated management of water resources …; protection of water resources and water and sewage systems …; [and] resolution of water and sewage related disputes."103

Furthermore, the Israelis and Palestinians added an enforcement mechanism and established Joint Supervision and Enforcement Teams, the structure, role, and mode of operation of which is detailed elsewhere in the agreement.104 The agreement demonstrates that the parties believe that they can carry out its principles in good faith.

The Israel-Jordan Peace Treaty and the Israel-Palestinian Water Agreement both use the Boundary Waters Treaty's JWC precept as a "management" body for allocating water and for governing future disputes and allocations. This model has functioned with excellent results for 93 years. Although its use has been limited to two-party accords, there is absolutely no reason why it cannot be employed for multistate water allocation and management, especially in the Middle East.

Current Status

To this day the Johnston model is the most workable plan. His plan addressed water allocations and quotas between all the parties to the conflict. That plan, which was never outwardly rejected either by the Arabs or the Israelis, can serve as a basis for allocation of the Jordan River Basin's water between all riparians (Israel, Jordan, Lebanon, Syria, and the Palestinians). However, the situation as it stands today is considerably different from the one in 1953. The growth in the region's population, industrialization, urbanization, and decreasing agricultural use of the land must be taken into account, and the allocations of the 1950s must be recalculated. One consideration must include reducing reliance on water-intensive crops.

Accordingly, Amikam Nachmani, a water expert from Israel's Bar-Ilan University's Center for Strategic Studies, recently stated that "by exporting water intensive avocado, cotton, citrus and mango to Western European countries, Israel is in effect exporting water to places which have it in abundance.105"

Similarly, J.A. Allan of the University of London's School of Oriental and African Studies has developed the concept of "virtual water." At a paper he gave at Yale University in 1997, Professor Allan stated that "the region's economies are already dependent on imported water as they are on the renewable waters of the region, and that dependence is likely to increase over the coming decades."106 He looked at the amount of water needed for the production of wheat and the exponential increase of wheat flour and cereal consumption from 1965 to 1990. Allan notes that Egypt "introduced wheat subsidies (to begin a shift away from cotton)."107 He found that the per-capita annual water consumption for three uses are as follows: (1) drinking water: 1 cubic meter; (2) municipal and industrial uses: 100 cubic meters; and (3) food production: 1,000 cubic meters.108 Consequently, to produce 1 metric ton of wheat, the amount of water input is 1,000 times more than a person's individual consumption of water.

Given that many other countries, e.g., Canada and the United States, are prolific wheat producers and have more than adequate supplies of water, it does not make sense that middle eastern countries should divert water to agricultural use as opposed to human consumption: a higher and better use of the resource. It is, therefore, also critical that experimentation with less water-intensive or demanding crops must be undertaken. For example, Israel, which has developed novel irrigation methods, e.g., drip irrigation and the use of treated sewage effluent for irrigation purposes, could team up with its neighbors to refine and advance this technology, which would be exportable to other "dry" countries and regions. The World Bank and the International Monetary Fund, among others, whose current policies—in the region and elsewhere—support and encourage profligate water use, need to demand immediate and stringent water conservation efforts.

Conclusion

Having suffered through a devastating drought over the last few years and an engulfing cycle of violence, the time may be ripe for a multilateral water agreement in the Middle East's Jordan River Basin. The protagonists need to use a tried and true paradigm: a multilateral model using a joint commission or JWC formula that has worked for the United States and that three of the parties have already employed (the Israel-Jordan and Israel-Palestinian agreements). Each state may select three commission members and two outside or neutral groups or nations, contributing three members each. This is an excellent archetype for preserving the rights of each state. Moreover, if their governments imbue these commissioners with independence, they can rise above partisan interests and protect the water in the Jordan River Basin: a resource worth protecting. Additionally, Canada, the United States, and other countries who are endowed with water-rich climates for water-intensive crops should be encouraged to work out a grain subsidy and other subsidy programs with the basin's sovereigns. Thus, precious water resources in this very arid region of the world can be used to quench peoples' thirsts, rather than diverting them to water-intensive crops.

1. R. MARIA SALETH & ARIEL DINAR, WATER CHALLENGE AND INSTITUTIONAL RESPONSE: ACROSS-COUNTRY PERSPECTIVE iii (World Bank Group 1999), available at http://www.worldbank.org [hereinafter WATER CHALLENGE].

2. Wally D'Now, Secretary General of the United Nations, Habitat II Conference in Istanbul (June 1996), quoted in Stephen C. Lonergan, Forces of Change and the Conflict Over Water in the Jordan River Basin, in WATER IN THE MIDDLE EAST. A GEOGRAPHY OF PEACE 52-53 (Hussein A. Avery & Aaron T. Wolf eds., 2000).

3. This Year Was the 2nd Honest, Confirming a Trend, U.N. Says, N.Y. TIMES, Dec. 19, 2001, at A-5; Robert Henely, The Drought Is Official, but No Restrictions Are Imposed, N.Y. TIMES, Dec. 20, 2001, at A-6.

4. See, e.g., U.S. Department of Agriculture, World Agricultural Highlights (July 12, 2000), at http://www.usda.gov/agency/oce/waob/jawf/wawh/0007wawh.pdf (last visited Oct. 25, 2002) (severe drought in Manchuria and South Korea).

5. Lonergan, supra note 2, at 53.

6. Id. (citing WORLD RESOURCES INSTITUTE, WORLD RESOURCES, 1996-1997 (Oxford Univ. Press 1996)).

7. Id.

8. Timothy Egan, As Thousand of Salmon Die, Fight for River Erupts Again, N.Y. TIMES, Sept. 28, 2002, at A-1.

9. SANDRA POSTEL, LAST OASIS: FACING WATER SCARCITY (1992), cited in STEPHEN C. LONERGAN & DAVID BROOKS, WATERSHED: THE ROLE OF FRESH WATER IN THE ISRAELI-PALESTINIAN CONFLICT 5 (1994) [hereinafter WATERSHED].

10. The West Bank is nominally governed by the Palestinian National Authority (PNA). However, since September 2000 with the initiation of the second Intifada and its concomitant terrorism, Israel has reimposed certain controls over major portions of the territory.

11. Genesis 12:10.

12. Id. 13:6 ("And the land was not able to bear them …."). Most biblical scholars interpret this sentence to mean that "there was insufficient pasturage and water for their numerous herds." See, e.g., J.H. HERTZ, THE PENTATEUCH 48 n.6 (1960).

13. Genesis 43:1.

14. AARON T. WOLF, HYDROPOLITICS ALONG THE JORDAN RIVER: SCARCE WATER AND ITS IMPACT ON THE ARAB-ISRAELI CONFLICT (1995) [hereinafter HYDROPOLITICS].

15. Israel refers to the Sea of Galilee as "Lake Kinneret" or "Kinneret," as well as "Lake Tiberias." Since the Sea of Galilee falls within Israel proper it will be referred to as Lake Kinneret. Lake Kinneret has dropped almost 20 feet since 1998. "The reason is a combination of drought and overuse …." Serge Schmemann, Israel Waits for Sea of Galilee's Low Tide to Turn, N.Y. TIMES, Sept. 10, 2002, at A4.

16. Woodrow Wilson School of Pub. & Int'l Affairs, Princeton Univ., Water Rights in the Jordan Valley, at http://www.wws.princeton.edu/-wws401c/ (last visited Dec. 23, 2002) [hereinafter Water Rights in the Jordan Valley].

17. Hussein A. Avery & Aaron T. Wolf, Water, Geography, and Peace in the Middle East: An Introduction, in WATER IN THE MIDDLE EAST: A GEOGRAPHY OF PEACE 7 (Hussein A. Avery & Aaron T. Wolf eds., 2000).

18. Id.

19. Water Rights in the Jordan Valley, supra note 16.

20. Id.

21. Id. One cubic meter is equal to 1.31 cubic yards (3.93 cubic feet). Thus, 100 MCM = 131 million cubic yards or 393 million cubic feet.

22. Id.

23. U.S. equivalent measurements and metric equivalents will be used interchangeably.

24. WATERSHED, supra note 9.

25. Id.

26. "Groundwater recharge can be defined as the entry into the saturated zone [the zone below the water table whose pores are filled with water] of water made available at the water-table surface, together with the associated flow from the water table within the saturated zone." R. ALLAN FREEZE & JOHN A. CHERRY, GROUNDWATER 211 (1979) (emphasis in original).

27. Avery & Wolf, supra note 17, at 7.

28. Peter Beaumont, Conflict, Coexistence, and Cooperation: A Study of Water Use in the Jordan Basin, in WATER IN THE MIDDLE EAST: A GEOGRAPHY OF PEACE 19, 21 (Hussein A. Avery & Aaron T. Wolf eds., 2000).

29. Water Rights in the Jordan Valley, supra note 16.

30. HYDROPOLITICS, supra note 14.

31. For a more thorough description of the Hasbani, see the discussion on the water conflict between Israel and Lebanon infra.

32. The Zarqa is the major Jordanian tributary, it lies to the south and the east of Lake Kinneret, flowing east to west in Jordan.

33. The Delhamiah and Rokad Rivers are the major tributaries from the southwest from Syria.

34. Water Rights in the Jordan Valley, supra note 16.

35. Id.

36. Id.

37. Id.

38. Jens Neuberger, Brandenburg University of Technology Cottbus Profile Online, NR 43 (Nov. 2000), at http://www.tu-cottbus.de/BTU/TU-Profil/Nr43/A034.html.

39. JORDANIAN MINISTRY OF WATER & IRRIGATION ET AL., OVERVIEW OF MIDDLE EAST WATER RESOURCES; WATER RESOURCES OF PALESTINIAN, JORDANIAN, AND ISRAELI INTEREST 35 (1998) available at http://exact-me.org/overview/p35.pdf.

40. See, e.g., SIGNBOARD, Gilboa Institute of the Humanities, Pictures of Tulul al-Dhahab (the Golden Hill) (Mar. 27-28, 2000), at http://www16.0038.net/gilboa/Mahanaim.html.

41. Hashemite Kingdom of Jordan, Water Resources, at http://www.mwi.gov.jo/water%20Resources.htm (last visited Jan. 6, 2003).

42. WATERSHED, supra note 9, at 44. See also Table II.

43. Beaumont, supra note 28, at 24.

44. JORDANIAN MINISTRY OF WATER & IRRIGATION ET AL., supra note 39.

45. Id.

46. Water Rights in the Jordan Valley, supra note 16.

47. Since Israel is in control of most of this aquifer its terminology will be used.

48. The Yarkon-Tanninim is a subsurface limestone water reservoir trending north to south. The aquifer's southern extent is in the vicinity of the Israeli city of Be'er Sheba. Its northern boundary is near the West Bank cities of Qalqilia and Tul Karem. The Israeli city of Afula is its western edge: the eastern extent of the aquifer is near Jericho.

49. Water Rights in the Jordan Valley, supra note 16.

50. Id.

51. Id.

52. Id.

53. Id.

54. Reproduced from Water Rights in the Jordan Valley, id.

55. Jan Lundqvist, Avert Looming Hydrocide, 27 AMBIO 428, 432 (1998) (emphasis in original).

56. During World War I, the British government became committed to the idea of establishing a Jewish homeland in Palestine. Following discussions in the British Cabinet and consultation with Zionist leaders, British Foreign Secretary Arthur James Balfour, wrote a letter to Lord Rothschild, who represented the Zionists in Britain, declaring that "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people …." See Israel Ministry of Foreign Affairs, The Balfour Declaration, at http://www.mfa.gov.il/mfa/go.asp?MFAH00pp0 (last visited Oct. 25, 2002); see also John Cornelius, The Balfour Declaration and the Zimmerman Note: A Possible Explanation for Britain's Betrayal of the Palestinians, WASH. REP. ON MIDDLE E. AFF., Aug./Sept. 1997, at 18-20, available at http://www.washington-report.org/backissues/0897/9708018.html (last visited Oct. 25, 2002).

57. In comparison to the Jordan Valley jurisdictions, of the remaining countries in the Middle East, only Qatar and Saudi Arabia are worse off than Jordan. Egypt, Iran, Lebanon, and Morocco are better off than Israel, and Iraq and Turkey fare the best.

58. See discussion on allocation plans infra.

59. ArabicNews.Com, Syria to Jordan: You Will Bear Heavy Price if You Play With Water Supply (Oct. 9, 1997), at http://www.arabicnews.com/ansub/Daily/Day/971009/1997100943.html.

60. The Israel-Jordanian water project had nothing to do with Syria, other than the fact that the land the project was to be situated upon was Syrian territory that Israel had annexed 20 years before.

61. Ha'aretz Staff & Agencies, Lebanon Nixes U.S. Request to Halt Work on Hasbaniani Pipeline, at http://www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=210990&contrassID=1&subContrassID=0&sbSubContrassID=0 (last modified Sept. 22, 2002).

62. Id.

63. "Mekorot" means "sources" in Hebrew.

64. The United States has urged Israel to abandon its reliance on the Wazzani and Hasbani and apply its energies into desalinization plants. Personal Communication from Rabbi Leonard Gordon (Nov. 13, 2002).

65. The Johnston Plan is more fully elaborated upon in the section on water allocation principles infra.

66. Amos Harel & Aluf Benn, Ha'aretz Online, Mofaz Rejects Lebanon Proposal for Pumping From Wazzani. (Dec. 17, 2002), at http://www.haaretzdaily.com.

67. Id.

68. Id.

69. Lundqvist, supra note 55, at 432.

70. This discussion is not comprehensive. Rather it seeks to introduce the most salient plans.

71. JAMES B. HAYES, T.V.A. ON THE JORDAN (1948).

72. For Main's allocation figures, see Table II.

73. The Hula swamps and Lake Hula lie to the north of Lake Kinneret.

74. The Med-Dead Canal envisions sea water from the Mediterranean flowing from a pipe, situated on the coast of Israel, to the Dead Sea, which lies some 400 meters below sea level. The flow would be used to generate hydroelectric power and to replenish the Dead Sea because it receives little water from the Jordan River.

75. For Johnston's allocation figures, see Table II.

76. See, e.g., Statute of the International Court of Justice, art. 38, 59 Stat. 1055 (June 26, 1945).

77. Karen A. Baim, Come Hell or High Water: A Water Regime for the Jordan River Basin, 75 WASH. U. L.Q. 919, 930 (1997); See also LOUIS HENKIN ET AL., INTERNATIONAL LAW 1354 (1993).

78. See, e.g., HENKIN ET AL., supra note 77, at 1354 (addressing customary or previous actions of uninvolved states). This practice is similar to that in contract law, where industrywide practice is employed where no contract or term addressing a subject exists.

79. According to Henkin:

The four primary principles of water management are (1) absolute territorial sovereignty, (2) absolute territorial integrity, (3) common jurisdiction, and (4) equitable jurisdiction.

Id. For a comprehensive examination of these and related principles and categories, see generally HYDROPOLITICS, supra note 14, at 96-99; DANIEL HILLEL, RIVERS OF EDEN: THE STRUGGLE FOR WATER AND THE QUEST FOR PEACE IN THE MIDDLE EAST 270-78 (1994); NURIT KLIOT, WATER RESOURCES AND CONFLICT IN THE MIDDLE EAST 5-7 (1994); and Julio Barberis, The Development of International Law of Transboundary Groundwater, 31 NAT. RESOURCES J. 167 (1991).

Henkin also states:

The principle of absolute territorial sovereignty sanctions a state's use of the water contained within it without regard for any other state. HILLEL [supra] at 270; KLIOT [supra] at 5. The United States asserted absolute territorial sovereignty over the Rio that the U.S. could do what it pleased with the Rio Grande in total disregard of downstream repercussions. After almost universal condemnation, and after finding itself a downstream riparian of the Columbia River, which begins in Canada, the United States abandoned that position. Id. Today, the principle has little application in international law. KLIOT [supra] at 5.

The second principle, absolute territorial integrity, protects the water claims of the downstream riparian. Under this principle, no action may be taken by any riparian which would damage the territory of another. Id. Absolute territorial integrity is often tied to past appropriations, and thus maintains the status quo. Id. The perpetuation of the status quo may be the basis for the principle's modern disuse.

The third principle, common jurisdiction, requires the cooperation of all the riparians in the management of the entire international river system. Id. at 6. This type of regime grants ownership in common of the entire river to all of the parties, allows only for mutual development, and requires consultation of all parties on all water-use projects. Id.

The fourth principle, equitable utilization, is discussed [above] in the text.

Baim, supra note 77, at n.92.

80. Id. at 931. "The principle of equitable utilization began developing in the 1950s with the Lake Lanoux arbitration between France and Spain …. Although the arbitrator refused to allow one riparian to object when the water's flow was merely altered, the arbitrator protected each party's right to equitable use of the water system…." Id.

81. The Helsinki Rules on the Uses of the Waters of International Rivers, 52 INT'L L. ASS'N, 484-533 (1966) (codifying international laws on waters of international rivers), available at http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.htm (last visited Oct. 25, 2002) [hereinafter Helsinki Rules]; see id. at 499, cmt. (B) (equitable utilization); HENKIN, supra note 77, at 97.

The Helsinki Rules were adopted in 1966 by the International Law Association (ILA). They were supplemented in 1986 with the Seoul Rules on International Groundwater (available on the Internet at http://www.internationalwaterlaw.org/IntlDocs/Seoul_Rules.htm).

82. KLIOT, supra note 79, at 6.

83. Helsinki Rules, supra note 81, art. IV, Equitable Utilization of the Waters of an International Drainage Basin. See also KLIOT, supra note 79, at 6.

84. Article V of the Helsinki Rules states:

(1) What is a reasonable and equitable share within the meaning of Article IV is to be determined in the light of all the relevant factors in each particular case.

(2) Relevant factors which are to be considered include, but are not limited to:

(a) the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State;

(b) the hydrology of the basin, including in particular the contribution of water by each basin State;

(c) the climate affecting the basin;

(d) the past utilization of the waters of the basin, including in particular existing utilization;

(e) the economic and social needs of each basin State;

(f) the population dependent on the waters of the basin in each basin State;

(g) the comparative costs of alternative means of satisfying the economic and social needs of each basin State;

(h) the availability of other resources;

(i) the avoidance of unnecessary waste in the utilization of waters of the basin;

(j) the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and

(k) the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.

(3) The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Helsinki Rules, supra note 81, at 488.

85. HENKIN, supra note 77, at 933.

86. Id.

87. Id.

88. Treaty Between the United States and Great Britain Relating to Boundary Waters Between the United States and Canada, Jan. 11, 1909, 36 Stat. 2448, T.S. No. 548.

89. Israel-Jordan Peace Treaty, Annex II, Water Related Matters, at http://www.usembassy-israel.org.il/publish/peace/annex2.htm and http://www.us-israel.org/jsource/Peace/annex2.html (last visited Oct. 25, 2002).

90. Id. art. I (Allocation (Between the Parties and Rivers—Jordan and Yarmouk), art. II (Storage of Water), art. III (Water Quality Protection), art. IV (Groundwater.in Emek Ha'araavi/Wadi-Araba), art. V (Notification and Agreement), art. VI (Cooperation), and art. VII (Creates the Joint Water Committee).

91. Id. (emphasis in original).

92. Id. art. VII, § 1 (emphasis supplied).

93. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, at http://www.israel-mfa.gov.il/mfa/go.asp?MFAH00qa0 and http://www.pna.org/mininfo/key/oslo2.htm (last visited Oct. 25, 2002).

94. See id. Annex III.

95. Id. art. 40.1.

96. Id. art. 40.2, 40.3.a.

97. Id. art. 40.3.e.

98. Id. art. 40.3.f.

99. Id. art. 40.3.h.

100. Id. art. 40.6.

101. Id. art. 40.7.a.1.

102. Id. art. 40.11.

103. Id. art. 40.12.1.a, .c, .f.

104. Id. art. 40.17.

105. Liat Collins & Etgar Lefkovits, To the Last Drop, JEWISH TRIB., Dec. 1-7, 2000, at 12, 13.

106. J.A. Allan, Virtual Water: A Current and Future Solution, 103 YALE FORESTRY & ENVTL. STUD. J. 667 (1997).

107. Id. at 669.

108. Id.

33 ELR 10207 | Environmental Law Reporter | copyright © 2003 | All rights reserved