Ground Water Resources and International Law in the Middle East Process

Next to issues of land, water resources are the major bone of contention in the peace negotiations between Israel and the Palestinian Arabs. The objective of negotiations is de facto setting the clock back to the eve of the Israel War of Independence, when the Jews accepted the 1947 UN resolution of partition, while the Arabs rejected it. The Arabs now accept the principle of territorial partition, but at the same time, they demand re-apportioning of resources, mainly of water. The Palestinians contend that the facts created on the ground unilaterally by Israel during the last 50 years, namely the agricultural development and the high water consumption by the Israeli urban sector, leave them without resources necessary for their development as a modern society. Per capita annual renewable freshwater resources in the region is among the lowest in the world. Approximately 600 million m3, or about one-third of the regional fresh groundwater consumption, is annually abstracted from aquifer systems recharged at the uplands of the Upper Cretaceous partly karstified carbonate formations of Judea and Samaria, terrenes often referred to as the West Bank. Israel and the Israeli agricultural settlements established within Judea and Samaria use 495 million m3/year (or 82.5 percent) of the abstracted water, leaving to the Palestinians the remaining 105 million m3/year. Thus, while the recharge zone to the Judean and Samarian aquifer systems are within the territories with an overwhelmingly Palestinian majority, most of the discharge occurs through water wells within the Israeli administration. The situation is reversed in the Gaza Strip, where Israel allows underflow of only 7 million m3/year of groundwater across the border, a less than 10 percent contribution to the nearly 80 million m3/year overdrawn water budget of the area. The issue of water is complicated by glaringly wide disparity in per capita water consumption between the two nations. While lines on the ground may separate two nations with conflicting territorial ambitions, apportioning of groundwater between Israel and the future Palestinian State proves to be one of the most intractable issues in the Middle East Peace Process. Moreover, neither international nor domestic law provides an adequate answer to questions of ownership or rights

International Water Law, Groundwater Resources and the Danube Dam Case

International water law is generally applied to disputes between states concerning surface bodies of water crossing international borders. Disputes and policy-making over transboundary ground water resources, however, have traditionally been determined on an ad hoc basis or based on regional custom. This disparate treatment stems primarily from the misunderstood nature of ground water and its relationship to surface water among government officials, policy-makers, jurists, and others. The result often has been the degradation of subsurface waters on both sides of political boundaries, and unwittingly, of numerous international surface bodies of water. International concern over regional and global availability and quality of fresh water resources has recently generated reexamination of water use and allocation. As a consequence, there is now a growing belief that international water law should be applied to surface as well as subsurface water resources equally. This trend has been encouraged, in no small part, by the growing understanding of the indissociable relationship between surface and ground water resources. In the recent World Court decision in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), the International Court of Justice considered, among other claims, allegations of transboundary environmental harm to both surface and ground water resources stemming from the construction and operation of the Gabcikovo Dam and Danube River diversion channel. While the Court addressed the two states\u27 conduct and relations during the dispute, it gave only cursory mention to the environmental concerns presented. Specifically, the Court did not fully consider the consequences to the region\u27s ground water resources or the applicable law, but rather reached its conclusion based solely on state obligations as defined by treaty and international law. In so doing, the Court artfully skirted the sophisticated but vexing issues of potential environmental harm and applicable laws, including the implication of international water law to subsurface water resources. Notwithstanding the decision, the facts of the case provide an interesting scenario on which to consider both the relationship between transboundary surface and ground water resources, as well as the applicable international law

A Hydrogeological Approach to the Status of Transboundary Ground Water Resources Under International Law [abstract]

2 pages. Contains footnotes

A Hydrogeological Approach to Transboundary Ground Water Resources and International Law

Ground water resources have long been the neglected stepchild of water law. While agreements focusing on transboundary rivers and lakes have been relatively common, there is a paucity of treaties and international norms squarely addressing shared ground water resources. As a result, the rules governing the use, management, and conservation of transboundary ground waters is unclear at best. This dearth is, in large part, the result of a deficit of scientific understanding among legislators, policymakers, and the judiciary. This is evidenced in many international and domestic laws and policies that have little or no scientific underpinning. Accordingly, there is a significant need to demystify ground water and its relationship to surface water. Moreover, there is a need to inject hydrogeologic concepts and understanding into legal and political discourse and to assist in the development of sound, science-based laws and policies. In an effort to infuse science into legal understanding, Julio Barberis, in his well-known study, identified four cases where ground water forms part of an international water system. While these cases are generally accepted among legal scholars (including the drafters of the UN Watercourse Convention), the cases are incomplete and imprecise and require refinement to conform to the current knowledge of the science of ground water. Adapting and building on Barberis\u27s study, the authors propose six models in which ground water resources can have international implication. These models are based on basic hydrogeological principles and actual examples. They are intended to help in the evaluation of the applicability and scientific soundness of proposed and existing rules governing shared ground water resources. Through such analyses, it is hoped that the models assist in the development of clear, logical, and appropriate norms of state conduct

International Water Law, Groundwater Resources and the Danube Dam Case

International water law is generally applied to disputes between states concerning surface bodies of water crossing international borders. Disputes and policy-making over transboundary ground water resources, however, have traditionally been determined on an ad hoc basis or based on regional custom. This disparate treatment stems primarily from the misunderstood nature of ground water and its relationship to surface water among government officials, policy-makers, jurists, and others. The result often has been the degradation of subsurface waters on both sides of political boundaries, and unwittingly, of numerous international surface bodies of water. International concern over regional and global availability and quality of fresh water resources has recently generated reexamination of water use and allocation. As a consequence, there is now a growing belief that international water law should be applied to surface as well as subsurface water resources equally. This trend has been encouraged, in no small part, by the growing understanding of the indissociable relationship between surface and ground water resources. In the recent World Court decision in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), the International Court of Justice considered, among other claims, allegations of transboundary environmental harm to both surface and ground water resources stemming from the construction and operation of the Gabcikovo Dam and Danube River diversion channel. While the Court addressed the two states\u27 conduct and relations during the dispute, it gave only cursory mention to the environmental concerns presented. Specifically, the Court did not fully consider the consequences to the region\u27s ground water resources or the applicable law, but rather reached its conclusion based solely on state obligations as defined by treaty and international law. In so doing, the Court artfully skirted the sophisticated but vexing issues of potential environmental harm and applicable laws, including the implication of international water law to subsurface water resources. Notwithstanding the decision, the facts of the case provide an interesting scenario on which to consider both the relationship between transboundary surface and ground water resources, as well as the applicable international law

Transboundary Aquifers: Conceptual Models for Development of International Law

More than one-half of the world\u27s population is dependent on ground water for everyday uses such as drinking, cooking, and hygiene. In fact, it is the most extracted natural resource in the world. As a result of growing populations and expanding economies, many aquifers today are being depleted while others are being contaminated. Notwithstanding the world\u27s considerable reliance on this resource, ground water resources have long received only secondary attention as compared to surface water, especially among legislatures and policymakers. Today, while there are hundreds of treaties governing transboundary rivers and lakes, there is only one international agreement that directly addresses a transboundary aquifer. Given that many of the aquifers on which humanity so heavily relies cross international borders, there is a considerable gap in the sound management, allocation, and protection of such resources. In order to prevent future disputes over transboundary aquifers and to maximize the beneficial use of this resource, international law must be clarified as it applies to transboundary ground water resources. Moreover, it must be defined with a firm basis in sound scientific understanding. In this paper we offer six conceptual models is which ground water resources can have transboundary consequences. The models are intended to help in assessing the applicability and scientific soundness of existing and proposed rules governing transboundary ground water resources. In addition, we consider the development of international law as it applies to ground water resources and make recommendations based on the models and principles of hydrogeology. The objective is the development of clear, logical, and science-based norms of state conducts as they relate to aquifers that traverse political boundaries

A Hydrogeological Approach to Transboundary Ground Water Resources and International Law

Ground water resources have long been the neglected stepchild of water law. While agreements focusing on transboundary rivers and lakes have been relatively common, there is a paucity of treaties and international norms squarely addressing shared ground water resources. As a result, the rules governing the use, management, and conservation of transboundary ground waters is unclear at best. This dearth is, in large part, the result of a deficit of scientific understanding among legislators, policymakers, and the judiciary. This is evidenced in many international and domestic laws and policies that have little or no scientific underpinning. Accordingly, there is a significant need to demystify ground water and its relationship to surface water. Moreover, there is a need to inject hydrogeologic concepts and understanding into legal and political discourse and to assist in the development of sound, science-based laws and policies. In an effort to infuse science into legal understanding, Julio Barberis, in his well-known study, identified four cases where ground water forms part of an international water system. While these cases are generally accepted among legal scholars (including the drafters of the UN Watercourse Convention), the cases are incomplete and imprecise and require refinement to conform to the current knowledge of the science of ground water. Adapting and building on Barberis\u27s study, the authors propose six models in which ground water resources can have international implication. These models are based on basic hydrogeological principles and actual examples. They are intended to help in the evaluation of the applicability and scientific soundness of proposed and existing rules governing shared ground water resources. Through such analyses, it is hoped that the models assist in the development of clear, logical, and appropriate norms of state conduct

Ground Water Resources and International Law in the Middle East Process

Next to issues of land, water resources are the major bone of contention in the peace negotiations between Israel and the Palestinian Arabs. The objective of negotiations is de facto setting the clock back to the eve of the Israel War of Independence, when the Jews accepted the 1947 UN resolution of partition, while the Arabs rejected it. The Arabs now accept the principle of territorial partition, but at the same time, they demand re-apportioning of resources, mainly of water. The Palestinians contend that the facts created on the ground unilaterally by Israel during the last 50 years, namely the agricultural development and the high water consumption by the Israeli urban sector, leave them without resources necessary for their development as a modern society. Per capita annual renewable freshwater resources in the region is among the lowest in the world. Approximately 600 million m3, or about one-third of the regional fresh groundwater consumption, is annually abstracted from aquifer systems recharged at the uplands of the Upper Cretaceous partly karstified carbonate formations of Judea and Samaria, terrenes often referred to as the West Bank. Israel and the Israeli agricultural settlements established within Judea and Samaria use 495 million m3/year (or 82.5 percent) of the abstracted water, leaving to the Palestinians the remaining 105 million m3/year. Thus, while the recharge zone to the Judean and Samarian aquifer systems are within the territories with an overwhelmingly Palestinian majority, most of the discharge occurs through water wells within the Israeli administration. The situation is reversed in the Gaza Strip, where Israel allows underflow of only 7 million m3/year of groundwater across the border, a less than 10 percent contribution to the nearly 80 million m3/year overdrawn water budget of the area. The issue of water is complicated by glaringly wide disparity in per capita water consumption between the two nations. While lines on the ground may separate two nations with conflicting territorial ambitions, apportioning of groundwater between Israel and the future Palestinian State proves to be one of the most intractable issues in the Middle East Peace Process. Moreover, neither international nor domestic law provides an adequate answer to questions of ownership or rights