Water: International Law

The relevant international law distinguishes between Israel's obligations as an Occupying Power to the population under its military control and the use of Palestinian-Israeli shared water sources, which are considered international waters.

PROHIBITION ON MAKING PERMANENT CHANGES NOT BENEFITING THE LOCAL POPULATION

Two major international conventions, which Israel has signed, deal with the rights and obligations of an Occupying Power vis-a-vis the local population: The Hague Convention of 1907 and the Fourth Geneva Convention of 1949. The commentary of the International Committee of the Red Cross (ICRC) explicitly states that "the occupation of territory in wartime is essentially a temporary, de facto, situation". The temporary nature of occupation limits the Occupying Power from creating permanent facts in the Occupied Territory. Article 55 of the Hague Regulations stipulates that:

"The Occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the Occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

The term usufruct indicates limited use, insofar as the Occupier may not exploit real estate to a degree greater than normal use. This rule applies, in one form or another, to all natural resources in the Occupied area, including water. Therefore, the wells drilled by Israel in the mountain aquifer in the West Bank to supply water to the Israeli settlements breaches this principle of international law. As the Occupying Power, Israel is only allowed to administer the underground water of the occupied territory, and to benefit from it (as described above), and is prohibited from utilising these resources for its citizens who reside there, other than for purely military needs.

THE OBLIGATION TO SUPPLY THE NEEDS OF THE OCCUPIED POPULATION

The Fourth Geneva Convention includes two articles that obligate Israel to supply a suitable quantity and quality of water to the protected population in the Occupied Territories. Article 55 stipulates: To the fullest extent of means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if requirements of the civilian population have been taken into account.

This article prevents Israel from using water resources in the West Bank for the Israeli settlers. Where there is a water shortage in the Occupied Territories, Israel is required to supply the settlers with water from its own sources.

Israel's failure to supply enough water to Palestinian residents of the West Bank to meet their needs and Israel's use of the water from local wells for the needs of Israeli settlers there contravene international law. The principles established in the human rights instruments and in humanitarian law obligate Israel to take all necessary measures to ensure that the Palestinians have access to water in the quantity and quality required to maintain basic health and hygiene.

PROHIBITION ON DISCRIMINATION

Israel's preferential treatment of the Israeli settlements over Palestinian towns and villages in supplying water in the Occupied Territories blatantly violates the principle of equality, which is unequivocally required under the Hague Regulations and the Fourth Geneva Convention. The prohibition on discrimination is a basic principle in defending human rights.

As regards the distribution of water in the Occupied Territories, Israel distinguishes between two populations in the West Bank - Palestinians and Israeli settlers - solely on the basis of nationality. Establishing two separate infrastructures for the distribution of water and giving priority of access to water to the settlers grossly breach the prohibition on discrimination.

USE OF INTERNATIONAL WATERS

The mountain aquifer and the Jordan basin comprise, under international law, international waters subject to the shared use of Israel and the Palestinians. In addition to Israel and the Palestinians, the Jordan basin is shared by Lebanon, Syria and Jordan.

The founding instrument of international law on the subject of water was prepared in 1966 by the International Law Association and is known as the Helsinki Fair-Use Principles. Since then, agreements and conventions have been added that have reinforced and expanded its principles. The instrument mentions four main factors to be considered in dividing shared water resources:

1. CURRENT OR PREVIOUS USE

As long as the division of water with the Palestinians has been a subject of international interest, Israel has utilised the principle of "current or previous use" to justify its claims for a larger portion of the shared waters. This is also the most salient principle in the interim agreements signed between the parties. The greater use by Israel in the past results from the policy of restrictions Israel implemented on the Occupied Territories. Israel responds that, except for the use by the Israeli settlers, the quantities drawn by the two sides from the mountain aquifer have not changed since the 1950s. This criterion credits Israel with 83 percent of the underground water of the mountain aquifer.

2. NATURAL CHARACTERISTICS OF THE WATER SOURCE

This principle is based on the absolute sovereignty theory regarding resources upon or beneath the sovereign land of a state. Under this principle, the Palestinians are credited with some 80-90 percent of the aquifers waters. As regards the Jordan basin, the primary beneficiaries under this principle are Lebanon and Syria, which control the source of the aquifer.

3. SOCIAL AND ECONOMIC NEEDS

This principle is based on the fundamental assumption that, regarding water for household needs, the basic principle of division must be equal allocation to every user in accordance with current and future needs. Only after these needs are met can allocation for agricultural and industrial use be considered. Under the this principle, the Palestinians are entitled to much higher quantities than they currently receive.

4. ACCESS TO ALTERNATIVE SOURCES

Israel's favorable technological and economic position, in comparison to that of the Palestinians, facilitates Israel's access to alternative sources (import of water, treatment of sewege water, and desalination of salt water), with the option of expenses incurred being shared with the Palestinians.

In sum, even accepting the Israeli argument that it is entitled to a higher quota of water than the Palestinians from the shared sources, based on its higher use in the past, the other factors dictate a re-division of the shared water sources in favor of the Palestinians.