I. rights. However, the ultimate distribution of water

I.                  
Introduction

In 1967, Israel began occupying
the West Bank and through a variety of discriminatory water-sharing sharing
agreements, laid claim to Palestine’s water resources. These agreements sheltered
planning and permit regimes that have restricted Palestine’s ability to maintain
or develop their fresh water infrastructure. Although the agreements did
provide some acknowledgement of Palestine’s right to water, they did so through
the lens of dependency on Israel. As a result, thousands of Palestinians have
been unable to access adequate water supplies. Water has become Israel’s next
frontier for domination.1

By all geographical
estimations, Palestine should not be water-poor: the West Bank includes the Jordan
River, as well as the Mountain Aquifer which underlies the both the West Bank
and Israel. The river and the aquifer are transboundary. As such, international
law requires that Israel and Palestine share the them in an equitable and reasonable
manner. Yet Israel makes the claim that because Palestine is not a sovereign
state, it cannot seek the protections of international law.2

In recent months, Israel,
Jordan, and the Palestinian Authority signed a water-sharing agreement that would
allow the Palestinian Authority to purchase more freshwater from Israel. Although
it has been hailed as “historic” by Israel and the United States, it cements Israel’s
control over water resources in the West Bank.3

This paper will first,
outline the context surrounding the Israeli-Palestinian water conflict. This
will include an examination of (i) Palestine’s access to freshwater; (ii) historic
bilateral agreements between Israel and Palestine; and (iii) water rights under
customary and international law. The paper will then make two contentions: (i) that
Palestine is able to seek the protections of customary and international law,
whether it is defined as a sovereign state or not; and (ii) the new
water-sharing deal does not relieve the water crisis. Rather, it tightens
Israel’s control over Palestinian waters.

II.               
Access to Water in the Israel-Palestine Region

Palestinians in the West
bank consumer only 70 liters of water per capita, per day. This is only 70% of
what the World Health Organization recommends as a minimum.

III.            
Historic
Israeli-Palestinian Water Agreements

Since Israel’s occupation
of the West Bank began in 1967, a patchwork of legal instruments have been
deployed in the hopes of resolving the Israeli-Palestinian water conflict. It
is true that these historic bilateral agreements recognized Palestinian water
rights. However, the ultimate distribution of water rights has been ascribed the
role of a “final status” issue, not be resolved until a two-state solution had
come to pass.4
Although many believe the peace process to have broken down in 2001,5 an understanding of the
region’s historic water agreements provides context for the current state of
the water conflict.

a.     
Jordan
Valley Unified Water Plan (“The Johnston Plan”)

In 1953, President Dwight
D. Eisenhower appointed Eric Johnston a “Special Representative of the
President of the United States” to resolve the then escalating water conflict
between the Arab states of the Jordan basin and Israel.6 At the time, Israel and
the Kingdom of Jordan had their own plans for water development, however each
objected to the other’s proposal.7 Johnston hoped to reach a
unified deal through negotiations with Israel and the Arab state of the Jordan basin.
The Jordan Valley Unified Water Plan (which would come to be known as the
“Johnston Plan”) called for two dams to be built on the Yarmuk river, as well
as a proposal for the distribution of the Jordan River waters between Israel,
Lebanon, Jordan, Syria, and Palestine. The Johnston Plan has become the de facto customary law in the region.8

b.     
Cairo
Agreement on Gaza and Jericho (“Gaza-Jericho Accord”)

The Gaza-Jericho Accord
was signed on May 4, 1994 by Yasser Arafat and then Israeli Prime Minister
Yitzhak Rabin, as part of the Oslo Process. While the Accord officially created
the Palestinian Authority—of which Yasser Arafat would become the first
president—it also obligated the Palestinian Liberation Organization (“PLO”) to
formally recognize Israel’s water policies in the Gaza Strip. 9

The Gaza-Jericho Accord stated
that the water systems and resources in the Gaza Strip and the Jericho Area
would be operated, managed, and developed by the Palestinian Authority.10 However, existing supply
systems for the Settlements and the Military Installation Area would continue
to be operated and managed by Mekorot Water Co.—the national water company of
Israel.11 Further, the Settlements
and the Military Installation Area would continue to appropriate the same
quantities of freshwater; the Palestinian Authority could not adversely affect
these quantities.12 Limiting as those
obligations were, the most damning provision of the agreement required the Palestinian
Authority to pay Mekorot for the cost of water supplied from Israel, and for
the expenses Mekorot incurred in supplying water to Palestine.13 The Gaza-Jericho Accord enshrined,
for the first time, the idea that water is not a resource to be shared amongst
Israelis and Palestinians. Rather, Israel controls and then allocates water to
Palestinians.  

1 http://www.aljazeera.com/news/2016/06/israel-water-tool-dominate-palestinians-160619062531348.html

2 http://www.aljazeera.com/news/2016/06/israel-water-tool-dominate-palestinians-160619062531348.html

3 http://www.aljazeera.com/indepth/features/2017/07/water-deal-tightens-israel-control-palestinians-170730144424989.html

4 Julie
Niehuss article page 14

5 https://www.vox.com/cards/israel-palestine/peace-process

6 http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.582.6330=rep1=pdf
Page 298

7 http://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/johnston-plan-1953

8
Gamal Abouali, Natural Resources Under Occupation: The Status of Palestinian
Water Under International Law, 10 PACE INT’L L. REV. 411, at 537 (1998)

9
Agreement on the Gaza Strip and the Jericho Area (“Gaza-Jericho Accord”), May
4, 1994, Isr.-PLO, available at
http://www.usembassy-israel.org.il/publish/peace/peaindex.htm

10
Agreement on the Gaza Strip and Jericho Area, Annex II, Article 31 (1)

11
Agreement on the Gaza Strip an Jericho Area, Annex II, Article 31 (2)

12
Agreement on the Gaza Strip and Jericho Area, Annex II, Article 31 (3).

13
Agreement on the Gaza Strip and Jericho Area, Annex II, Article 31 (5)