Introduction to Water and Water Law in the Jordan Valley

1. Introduction to Water and Water Law in the Jordan Valley Joseph W. Dellapenna Villanova University School of Law dellapen@law.villanova.edu

2. Transboundary Water around the World • Cooperative Contexts • United States Border Waters • The Rhine Basin • The Danube Basin • The Rio de la Plata Basin • Conflictual Contexts • The Indus Valley • The Mekong Valley • The Nile Valley • The Tigris-Euphrates Valley

3. The largest dry region on the planet Rivers originate outside the driest parts of the region The rivers are “exotic” A history of empires built around the control of water Many regions rely on “fossil” water Water in the Middle East

4. Arises from the springs on the slopes of Mt. Hermon—considerable dispute as to in which country the springs are located Three smaller rivers join to form the Jordan just above a natural reservoir—the Sea of Gallilee (Lake Kinneret, or Lake Tiberias) Flows down into the rift valley to end in a sink (the Dead Sea) Receives one major tributary—the Yarmuk Fully exploited, perhaps over exploited The Jordan River

5. Nearby Rivers The Litani Entirely within Lebanon Arises in the Bekaa Valley from the rain over the Lebanese Mountains and Mt. Hermon The Orontes Arises in the Bekaa Valley Flows down to Syria and Turkey The Aquifers The “Mountain Aquifer” Generally viewed as three aquifers, with a common source All fed from rainfall on the Judean or Palestinian hills Not yet fully exploited, but vulnerable to pollution The “Coastal Aquifer” Some dispute whether it is one or several aquifers Today overexploited and suffering from salt water intrusion Other Water Sources in the Jordan Valley

6. The Economic Context • Israel • A semi-arid land • A burgeoning population • European standards of consumption • Jordan • An arid land • A burgeoning population burdened with masses of refugees • Consumes about one-third as much water as Israel with a similar population • Lebanon • Arguably a water-surplus state • A burgeoning population burdened with masses of refugees • Plagued by political instability • Palestine • A semi-arid land • A burgeoning population • Water consumption levels even lower than in Jordan • The Jordan River unusable by the time it reaches the Palestinian territories • Water usage never under Palestinian control • Large quantities within the occupied territories consumed by Israeli settlements • Syria • Historically not dependant on the waters of the Jordan or the Yarmuk • Now seeks some of this water to supply the growing city of Damascus • Well placed to interfere with water usage in the other national communities

7. The Problem of Water Sharing in the Jordan Valley • Early plans for water development • Early appraisals • The Lowdermilk Plan • The Johnston Plan • The National Water Carrier • Eighty years of covert cooperation • Alternative sources of water • Conservation • Recycling • Importing water • Desalination • Weather modification

8. The Current Situation • The Israeli-Jordanian Peace Treaty (1994) • Recognizes that the available water is insufficient to meet all needs • Promise not to manage or develop water in a way that harms the other party and to cooperate to develop new sources • Small re-allocations of water resources • The Oslo Accords (1993 to present) • Oslo I—The Declaration of Principles (1993) • Promises to cooperate regarding water on the basis of equitable utilization • Not clear if it was intended to be legally binding • Oslo II—The Interim Agreement (1994) • A limited transfer of authority over water to the Palestinian Authority • Water to be allocated according to law • Existing Israeli uses within the occupied territories to continue • The Second Interim Agreement (1995) • Four of eleven schedules deal with water • 70-80 MCM of water to be made available to the Palestinians • A Joint Water Committee to approve policies and Joint Supervision Teams to supervise operations • Reinforces Palestinian dependence of Israeli facilities • Under the infitada (1999 to present) • The Tripartite Agreement (1996)

9. What Lessons Can International Law Teach? • Only riparian states have a legal claim upon a water resource • Traditional (competing) theories • Absolute Territorial Sovereignty • Absolute Riverine Integrity • Equitable Utilization • States are developing a new governing paradigm - joint, basin-wide management (sometimes called “equitable participation”) • The Berlin Rules on Water Resources available at www.ila-hq.org/pdf/Water%20Resources/Final%20Report%202004.pdf • Approved by the ILA, 21 August 2004 as a summary of contemporary international law regarding water resources • The New Paradigm (all waters): • Participatory management • Conjunctive management • Integrated management • Sustainability • Minimization of environmental harm • The New Paradigm (internationally shared waters): • Cooperation • Equitable utilization • Avoidance of transboundary harm • Equitable participation

10. Selected International Rules Applicable to All Waters • Participatory Management • A right of access to water • A right to a voice in decisions affecting one’s life • Access to education • Protection of particularly vulnerable communities • A right to compensation • Access to legal remedies • Sustainability and the Minimization of Environmental Harm • Ecological integrity • Ecological flows • Alien species • Pollution prevention or control • Hazardous substances • Prior assessment of impacts • Precautionary principle • Least net environmental harm • Compensation for injuries (“polluter pays”)

11. International Rules Applicable to Internationally Shared Waters • International cooperation • Exchange of information • Notification of programs, projects, or activities • Consultations • Harmonization and coordination of national policies • Establishment of joint management institutions • Equitable utilization—having “due regard” to the avoidance of harm • No a priori preferences—except for “vital human needs” • Factors to be considered: • Natural features; • The social and economic needs of the States; • Each State’s dependence on the waters in question; • The effects of actual or proposed uses in one State upon actual or proposed uses in the other State; • The extent of conservation or economy of use in each State; • Existing and potential uses; • The availability of alternatives to the planned or existing use; • The sustainability of proposed or existing uses; and • The minimization of environmental harm. • Avoidance of transboundary harm—having “due regard” to equitable utilization