Israeli-Palestinian water literature's misplaced dependence upon customary international law.

• Author: Silverbrand, Ian J.

1. INTRODUCTION II. RELEVANT SOURCES OF INTERNATIONAL WATER LAW A. Principles of International Water Law B. Customary International Water Law 1. The Helsinki Rules (1966) 2. The Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) C. Regional Treaty Water Law 1. The Declaration of Principles 2. Jordan-Israel Peace Treaty 3. The Interim Agreement III. RELIANCE UPON CUSTOMARY INTERNATIONAL WATER LAW AND RESTRICTED TERRITORIAL SOVEREIGNTY A. The Literature's Focus B. Customary International Water Law Does Not Apply to the Israeli-Palestinian Water Problem C. Pleas to Apply Restricted Territorial Sovereignty Ignore the Principle's Vagueness and the Parties' Preference for Other Principles IV. CONCLUSION I. INTRODUCTION

   During Biblical times, the Jordan Valley (1) was compared to a divine garden replete with flourishing trees and wildlife; (2) in more recent years, however, the Jordan Valley has been described as a desolate wasteland. (3) Despite this decline, the Jordan Valley is still widely perceived as an oasis. (4) In a desert-like environment such as the Middle East, (5) the Jordan River basin is presumed to provide much opportunity for agricultural and economic development and for personal use. However, like most oases, the basin has not lived up to its perceived promise. More than a decade ago, the Jordan River basin naturally discharged 1.1 billion cubic meters of water annually. (6) This is a meager volume relative to the demand for water. Sadly, today the situation is even more dismal as the Jordan River's natural discharge continues to decline as a consequence of both human intervention and natural diminishment. (7) Likewise, the nearby West Bank Aquifer, (8) which has a sustainable natural yield of approximately 300 million cubic meters (MCM) of water annually, is being overpumped by approximately twenty-five percent annually, (9) and its natural yield will decline as a result.

   Even with this nonefficient overconsumption of water resources, (10) the annual per capita water consumption in the region is shockingly low compared to other countries' water consumption. (11) For example, Israel only affords 350 cubic meters of water per year per capita, (12) and the Palestinian territories are afforded less than 250 cubic meters of water per year per capita. (13) By comparison, "First World" countries like the United States, Canada, and Japan are typically afforded in excess of 1,000 cubic meters of water per year per capita. (14) These figures suggest that, given the region's significant dependence upon these resources (15) and the inevitable increases in population, the potential for a catastrophic humanitarian disaster, beyond the violence that has marred the region for centuries, is severe. (16)

   Indeed, humanitarian disaster has already begun. Due in part to the increasing demand for water resources caused by a rapidly increasing population, (17) the region's riparians have consumed the available water resources at a rate beyond the natural replenishment rate. (18) Environmental studies have consequently shown that the quantity and the quality of the region's water resources have dramatically declined in recent years. (19) Likewise, this overconsumption has already adversely affected the ecology of the watershed, (20) and has indirectly affected the strength of the Israeli and Palestinian economies. (21) Even worse, however, overconsumption has not sufficiently met the region's water needs. Israel still faces an annual shortage of 475 MCM of water and the Palestinian territories face an annual deficit of 35 MCM. (22)

   According to many water law theorists, these calamitous results could be avoided by applying customary international law's embrace of restricted territorial sovereignty to the Israeli-Palestinian allocation of water. (23) However, most of these theorists disregard that customary international water law is very abstract and does not provide a conclusive determination of how to resolve the situation. Likewise, these authors have failed to consider that application of the articulations of customary international water law upon which they focus to the Israeli-Palestinian problem would be inappropriate for a variety of reasons. Consequently, the literature, while well intentioned, will likely have limited application and contribution to the ultimate resolution of the Israeli-Palestinian water distribution problem.

   This Comment considers the shortcomings of customary international law's application to the problem of Israeli-Palestinian water resource management. In Part II, this Comment explores the relevant customary international water law and regional treaty water law. In doing so, this section introduces and explains Professor F.J. Berber's hydrological constructs and demonstrate how the recent regional treaty water law has drawn upon them. In Part III, this Comment demonstrates that the reliance upon customary international water law is largely misplaced and unhelpful. Part IV concludes by explaining how international water law can be harnessed more effectively to the benefit of the resolution of this problem. By identifying these alternative solutions, it is the author's hope that future literature will depart from the current trend of suggesting that customary international water law's principles be applied to the problem.

2. RELEVANT SOURCES OF INTERNATIONAL WATER LAW

   1. Principles of International Water Law

      When settling conflicts over competing uses of water, riparians can rely upon a wide range of theoretical authority. (24) Professor F.J. Berber synthesized this authority and articulated that there are "four alternative principles which govern the use of waters flowing through more than one state." (25) These principles are absolute territorial sovereignty, absolute territorial integrity, community of property in water, and restricted territorial sovereignty. (26) Each of these constructs has been drawn upon, to varying degrees, during the historical negotiations related to usage of the Jordan River watershed resources. (27)

      Absolute territorial sovereignty is based upon the belief that a riparian should be able to freely dispose of waters flowing through its territory and that no riparian has a right to demand the continued free flow from other riparians. (28) A prime example of the theory's application can be found in the conflict between the United States and Mexico's usage of the Rio Grande. (29) As a result of the use of Rio Grande waters by farmers and ranchers in Colorado and New Mexico, Mexican communities near Ciudad Juarez were deprived of the use of quantities of Rio Grande water to which they had historical access for hundreds of years before farmers and ranchers arrived in New Mexico. (30) A legal dispute resulted, and it was referred to United States Attorney General Judson Harmon, who, in 1895, issued an opinion that has become known as the Harmon Doctrine. (31) In it, Harmon wrote:

      The fundamental principle of international law is the absolute Sovereignty of every nation, as against all others, within its own territory.... The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.... The immediate as well as the possible consequences of the right asserted by Mexico show that its recognition is entirely inconsistent with the sovereignty of the United States over its national domain. (32) Although the United States eventually abandoned the Harmon Doctrine and resolved the Rio Grande dispute by an agreement to apportion the waters of the Rio Grande equitably, (33) absolute territorial sovereignty--the driving principle behind the Harmon Doctrine--has since been argued by numerous other countries in water disputes with varying degrees of success. (34) Those disputes support the supposition that because absolute territorial sovereignty tends to typically favor the highest upstream riparian, the theory is typically advanced by upper riparians. (35)

      Conversely, absolute territorial integrity suggests that "a state has the right to demand the continuation of the natural flow of waters coining from other countries, but [a state] may not for its part restrict the natural flow of waters flowing through its territory into other countries." (36) According to this construct, every riparian must allow its watershed to follow its natural course. (37) This forces a state, when exercising control over its portion of an international basin, to consider the effects of this usage on its co-riparians. (38) Consequently, this construct most widely appeals to the lowest riparian who is in possession of where the river ends and empties into another body. (39)

      By contrast, community of property in water suggests that water "rights are either vested in the collective body of riparians or are divided proportionally." (40) Subsequently, no riparian can "dispose of the waters without the positive co-operation of the others." (41) Because this principle requires significant collaboration, it is best applied to a situation where there is "a fully developed legal community" (42) and where the riparians have amicable diplomatic relations. For example, community of property in water was invoked by then-United States Secretary of State Thomas Jefferson to President George Washington in 1792 with respect to navigation of the then Spanish-controlled lower Mississippi River. (43)

      Lastly, restricted territorial sovereignty prohibits detrimental increases in usage and prohibits detrimental alterations to the nature of the body's flow. (44) Thus, restricted territorial sovereignty suggests "all states riparian to an...