COMPENSATION AS PART OF EQUITABLE UTILIZATION IN THE ISRAELI-PALESTINIAN WATER CONTEXT.

• Author: El-Hindi, Jamal Laurence

ALTHOUGH PARTIES WITH GRIEVANCES against one another are more likely to settle such grievances by emphasizing forward steps toward common interests rather than dwelling on past animosities, the failure to account adequately for past grievances will undermine the acceptability of any resolution between the parties. Resolution of disputes between Israel and the Palestinians, as well as Israel and other Arab countries, should be no exception. Now that the disputants have displayed enough forward vision to arrive at the negotiating table, they must have the courage and the patience to parse out past facts and address, wherever possible, delicate issues involving accountability for past wrongs or inequities.

The situation regarding the use of transboundary water resources in Israeli and Palestinian territory provides a workable paradigm for addressing how compensation for past inequities can be incorporated into a plan for the future. Although issues concerning water are of a critical nature, as evidenced by their inclusion among the other issues that are to be resolved in final status negotiations, an analysis of rights to compensation in the water arena involves fewer emotional issues than discussing compensation for the loss of real or personal property or resolving the dilemma of refugee resettlement. Water under the bridge, so to speak, is simply that. Moreover, a suitable legal framework for analyzing the application of compensation issues in the case of water exists in the confluence of (i) developing norms of international water law, and (ii) other established norms concerning concepts such as belligerent occupation, restitution and state responsibility.

This essay is not meant to be an exhaustive review of the legal status of Israeli and Palestinian water resources. [1] Instead, it attempts to demonstrate succinctly the legal framework under which compensation issues should be incorporated into a resolution of current water disputes, thereby providing Israeli and Palestinian negotiators with a threshold point for seriously and practically addressing compensation concerns more generally. The introduction provides by way of background a brief overview of the international legal theories regarding transboundary water sources, focussing on the doctrines of equitable utilization and avoidance of significant harm as currently espoused by the international community. It then addresses the acceptance and application of these doctrines in the Israeli-Palestinian context, demonstrating how the particular historical context of the Israeli-Palestinian dilemma, arising from Israel's conquest, complicates the analysis. Finally, it raises the notion of rights to compensat ion as a factor to be included in an allocation of water rights under the doctrine of equitable utilization. The second part provides a legal framework for establishing rights to compensation through (i) an analysis of Israeli wrongs under the norms regarding belligerent occupation, and (ii) the establishment of Palestinian rights to compensation in a less normative context. The third section discusses the practicality of folding rights to compensation into an application of the equitable utilization doctrine in the Israeli-Palestinian context, discussing the various forms of compensation that may be feasible. The final section provides a brief discussion of the ramifications this analysis might have on final status negotiations.

INTRODUCTION

While criticism of any international legal regime as merely tangential to decisions and practices determined by global power politics (particularly in the Middle East) may be warranted, it is difficult to deny that most states, weak or strong, at most times, consider international norms and obligations in conducting their inter-statal relations. [2] In the transboundary water context, international law continues to develop. [3] Gradually, states and international law theorists have moved away from strict applications of territoriality in water conflicts to the notion of limited sovereignty and respect for shared usage. Prior to the development of a more detailed understanding of the relationship of surface waters and ground waters, most international theory focussed on the use of waterways that either served as boundaries or crossed them. States holding an upper riparian position on such watercourses might argue the notion of "absolute territorial sovereignty," claiming the sovereign right to take any action upon a watercourse located within their boundaries regardless of the effect upon a downstream neighbor. [4] States in a lower riparian position might argue the notion of "absolute territorial integrity," claiming an inviolable right to continuous flows from upstream without the interference of any upper riparian. The absolute nature of these doctrines makes them both equally unworkable. As demonstrated by Jerome Lipper in his comprehensive study of the acceptance by states of limited territorial sovereignty and the development of the notion of equitable utilization, absolute theories can no longer be considered part of international law, if they ever were. [5] States now generally accept that they must take into consideration the rights of co-basin states to any shared watercourse or drainage basin. [6] Thus, the notion that states recognize each others' rights to a reasonable use of shared waters has resulted in the acceptance of the notion of limited territorial sovereignty. [7] A cornerstone of the doctri ne of limited territorial sovereignty is the notion that each state sharing in a water system must be allowed equitable use of the resources. Equitable, of course, does not necessarily mean equal, and how states determine equitable use among themselves may vary, with a variety of factors taken into consideration. Consequently, the doctrine of equitable utilization has evolved into the notion that states must balance a variety of factors relating to use of a shared basin or watershed. [8]

Although the notion of limited territorial sovereignty is now generally accepted as a part of international water law, in certain situations the even broader notion of communal interest appears to have taken hold. Under the communal interest doctrine, the notion of sovereignty may more fully succumb to the notion of optimal use of a basin. Joint development schemes, where the locations of water-related projects within the basins are determined more by optimal functionality rather than borders, arguably represent an expression of communal interest, particularly when the sovereigns agree to use the territory of one state to provide a benefit to the other. [9]

EQUITABLE UTILIZATION AND SIGNIFICANT HARM

Attempts to distill the notion of limited territorial sovereignty (and to a more limited extent the doctrine of communal interests) into a rough codification of international water law exist in the Helsinki Rules adopted by the International Law Association in 1966 [10] and the Convention on the Non-Navigational Uses of International Watercourses adopted by the UN General Assembly in 1997. [11] By design, neither set of rules purports to override existing international water agreements. While the Helsinki Rules provide a set of recommendations for binding states to the principle of limited sovereignty, the Convention, as a result of recalcitrance among UN General Assembly member states, was adopted as a guiding framework for state conduct rather than a series of binding rules. The UN Convention and the Helsinki Rules are not the only attempts at codifying the international law of non-navigational transboundary waters based on the concept of equitable utilization. For example, in 1987, a group of internationa l water law scholars produced the Bellagio Draft Treaty as another model for states to follow in concluding transboundary water agreements. [12] All of these codification efforts, in attempting to solidify the present understanding of limited territorial sovereignty, have among their core provisions the principle of equitable utilization. [13]

In simple terms, the principle of equitable utilization requires states to take into consideration all relevant factors and circumstances when working toward an obligation to utilize transboundary waters in an equitable and reasonable manner. The UN Convention, the Helsinki Rules and the Bellagio Draft Treaty all list different and overlapping relevant factors, but in each case, these lists are illustrative only, thereby anticipating the consideration of other factors. For discussion purposes here, the illustrative factors in an equitable utilization analysis listed by the Helsinki Rules and UN Convention are set forth in the table below.

Both the Helsinki Rules and the UN Convention provide that none of the factors are to be given inherent priority over the others but that the "weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors." [14]

Somewhat distinct from the doctrine of equitable utilization under both the Helsinki Rules and the UN Convention is the principle of avoidance of significant harm. Under the significant harm principle pursuant to the UN Convention, states must "take all appropriate measures to prevent the causing of significant harm to other watercourse states." [15] Under the Helsinki Rules, the significant harm principle is incorporated under a complementary rule adopted by the ILA in Seoul in 1986 requiring a basin state to "refrain from and prevent acts or omissions within its territory that will cause substantial injury to any cobasin state." [16] The treatment of the significant harm principle as a separate element in comparison with the factors listed within the equitable utilization doctrine, and the fact that measurements of harm might be more concretely evaluated than an ambiguous weighing of other factors, has led some scholars to conclude that harm should be given greater...