Introduction to Water and Introduction to Water and Water Law in the Jordan Water Law in the Jordan

ValleyValley

Joseph W. DellapennaJoseph W. Dellapenna

Villanova University School of LawVillanova University School of Law

dellapen@law.villanova.edudellapen@law.villanova.edu

Transboundary Water around the Transboundary Water around the WorldWorld

Cooperative ContextsCooperative Contexts United States Border WatersUnited States Border Waters The Rhine BasinThe Rhine Basin The Danube BasinThe Danube Basin The Rio de la Plata BasinThe Rio de la Plata Basin

Conflictual ContextsConflictual Contexts The Indus Valley The Indus Valley The Mekong ValleyThe Mekong Valley The Nile ValleyThe Nile Valley The Tigris-Euphrates ValleyThe Tigris-Euphrates Valley

Water in the Middle EastWater in the Middle East

The largest dry region The largest dry region on the planeton the planet

Rivers originate Rivers originate outside the driest outside the driest parts of the regionparts of the region The rivers are “exotic”The rivers are “exotic” A history of empires A history of empires

built around the control built around the control of waterof water

Many regions rely on Many regions rely on “fossil” water“fossil” water

The Jordan RiverThe Jordan River

Arises from the springs on the Arises from the springs on the slopes of Mt. Hermon—slopes of Mt. Hermon—considerable dispute as to in considerable dispute as to in which country the springs are which country the springs are locatedlocated

Three smaller rivers join to Three smaller rivers join to form the Jordan just above a form the Jordan just above a natural reservoir—the Sea of natural reservoir—the Sea of Gallilee (Lake Kinneret, or Gallilee (Lake Kinneret, or Lake Tiberias)Lake Tiberias)

Flows down into the rift valley Flows down into the rift valley to end in a sink (the Dead Sea)to end in a sink (the Dead Sea)

Receives one major tributary—Receives one major tributary—the Yarmukthe Yarmuk

Fully exploited, perhaps over Fully exploited, perhaps over exploitedexploited

Other Water Sources in the Jordan Other Water Sources in the Jordan ValleyValley

Nearby RiversNearby Rivers The LitaniThe Litani

• Entirely within LebanonEntirely within Lebanon• Arises in the Bekaa Valley from Arises in the Bekaa Valley from

the rain over the Lebanese the rain over the Lebanese Mountains and Mt. HermonMountains and Mt. Hermon

The OrontesThe Orontes• Arises in the Bekaa ValleyArises in the Bekaa Valley• Flows down to Syria and TurkeyFlows down to Syria and Turkey

The AquifersThe Aquifers The “Mountain Aquifer”The “Mountain Aquifer”

• Generally viewed as three Generally viewed as three aquifers, with a common sourceaquifers, with a common source

• All fed from rainfall on the Judean All fed from rainfall on the Judean or Palestinian hillsor Palestinian hills

• Not yet fully exploited, but Not yet fully exploited, but vulnerable to pollutionvulnerable to pollution

The “Coastal Aquifer”The “Coastal Aquifer”• Some dispute whether it is one or Some dispute whether it is one or

several aquifersseveral aquifers• Today overexploited and suffering Today overexploited and suffering

from salt water intrusionfrom salt water intrusion

The Economic ContextThe Economic Context IsraelIsrael

A semi-arid landA semi-arid land A burgeoning populationA burgeoning population European standards of consumptionEuropean standards of consumption

JordanJordan An arid landAn arid land A burgeoning population burdened with masses of refugeesA burgeoning population burdened with masses of refugees Consumes about one-third as much water as Israel with a similar populationConsumes about one-third as much water as Israel with a similar population

LebanonLebanon Arguably a water-surplus stateArguably a water-surplus state A burgeoning population burdened with masses of refugeesA burgeoning population burdened with masses of refugees Plagued by political instabilityPlagued by political instability

PalestinePalestine A semi-arid landA semi-arid land A burgeoning populationA burgeoning population Water consumption levels even lower than in JordanWater consumption levels even lower than in Jordan The Jordan River unusable by the time it reaches the Palestinian territoriesThe Jordan River unusable by the time it reaches the Palestinian territories Water usage never under Palestinian controlWater usage never under Palestinian control Large quantities within the occupied territories consumed by Israeli settlementsLarge quantities within the occupied territories consumed by Israeli settlements

SyriaSyria Historically not dependant on the waters of the Jordan or the YarmukHistorically not dependant on the waters of the Jordan or the Yarmuk Now seeks some of this water to supply the growing city of DamascusNow seeks some of this water to supply the growing city of Damascus Well placed to interfere with water usage in the other national communitiesWell placed to interfere with water usage in the other national communities

The Problem of Water Sharing in The Problem of Water Sharing in the Jordan Valleythe Jordan Valley

Early plans for water developmentEarly plans for water development Early appraisalsEarly appraisals The Lowdermilk PlanThe Lowdermilk Plan The Johnston PlanThe Johnston Plan The National Water CarrierThe National Water Carrier Eighty years of covert cooperationEighty years of covert cooperation

Alternative sources of waterAlternative sources of water ConservationConservation RecyclingRecycling Importing waterImporting water DesalinationDesalination Weather modificationWeather modification

The Current SituationThe Current Situation The Israeli-Jordanian Peace Treaty (1994)The Israeli-Jordanian Peace Treaty (1994)

Recognizes that the available water is insufficient to meet all needsRecognizes 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 Promise not to manage or develop water in a way that harms the other party and to

cooperate to develop new sourcescooperate to develop new sources Small re-allocations of water resourcesSmall re-allocations of water resources

The Oslo Accords (1993 to present)The Oslo Accords (1993 to present) Oslo I—Oslo I—The Declaration of Principles The Declaration of Principles (1993)(1993)

• Promises to cooperate regarding water on the basis of equitable utilizationPromises to cooperate regarding water on the basis of equitable utilization• Not clear if it was intended to be legally bindingNot clear if it was intended to be legally binding

Oslo II—Oslo II—The Interim Agreement The Interim Agreement (1994)(1994)• A limited transfer of authority over water to the Palestinian AuthorityA limited transfer of authority over water to the Palestinian Authority• Water to be allocated according to lawWater to be allocated according to law• Existing Israeli uses within the occupied territories to continue Existing Israeli uses within the occupied territories to continue

The Second Interim Agreement (1995)The Second Interim Agreement (1995)• Four of eleven schedules deal with waterFour of eleven schedules deal with water• 70-80 MCM of water to be made available to the Palestinians70-80 MCM of water to be made available to the Palestinians• A Joint Water Committee to approve policies and Joint Supervision Teams to supervise A Joint Water Committee to approve policies and Joint Supervision Teams to supervise

operationsoperations• Reinforces Palestinian dependence of Israeli facilitiesReinforces Palestinian dependence of Israeli facilities

Under the Under the infitada infitada (1999 to present)(1999 to present) The Tripartite Agreement (1996)The Tripartite Agreement (1996)

What Lessons Can International What Lessons Can International Law Teach?Law Teach?

Only riparian states have a legal claim upon a water resourceOnly riparian states have a legal claim upon a water resource Traditional (competing) theories Traditional (competing) theories

Absolute Territorial SovereigntyAbsolute Territorial Sovereignty Absolute Riverine IntegrityAbsolute Riverine Integrity Equitable UtilizationEquitable Utilization

States are developing a new governing paradigm - joint, basin-wide management States are developing a new governing paradigm - joint, basin-wide management (sometimes called “equitable participation”)(sometimes called “equitable participation”)

The Berlin Rules on Water Resources available at The Berlin Rules on Water Resources available at www.ila-hq.org/pdf/Water%20Resources/Final%20Report%202004.pdfwww.ila-hq.org/pdf/Water%20Resources/Final%20Report%202004.pdf

Approved by the ILA, 21 August 2004 as a summary of contemporary international law Approved by the ILA, 21 August 2004 as a summary of contemporary international law regarding water resourcesregarding water resources

The New Paradigm (all waters):The New Paradigm (all waters):• Participatory managementParticipatory management• Conjunctive managementConjunctive management• Integrated managementIntegrated management• SustainabilitySustainability• Minimization of environmental harmMinimization of environmental harm

The New Paradigm (internationally shared waters):The New Paradigm (internationally shared waters):• CooperationCooperation• Equitable utilizationEquitable utilization• Avoidance of transboundary harmAvoidance of transboundary harm• Equitable participationEquitable participation

Selected International Rules Selected International Rules Applicable to All WatersApplicable to All Waters

Participatory ManagementParticipatory Management A right of access to waterA right of access to water A right to a voice in decisions affecting one’s lifeA right to a voice in decisions affecting one’s life Access to educationAccess to education Protection of particularly vulnerable communitiesProtection of particularly vulnerable communities A right to compensationA right to compensation Access to legal remediesAccess to legal remedies

Sustainability and the Minimization of Environmental HarmSustainability and the Minimization of Environmental Harm Ecological integrityEcological integrity

• Ecological flowsEcological flows• Alien speciesAlien species

Pollution prevention or controlPollution prevention or control Hazardous substancesHazardous substances Prior assessment of impacts Prior assessment of impacts Precautionary principlePrecautionary principle Least net environmental harmLeast net environmental harm Compensation for injuries (“polluter pays”)Compensation for injuries (“polluter pays”)

International Rules Applicable to International Rules Applicable to Internationally Shared WatersInternationally Shared Waters

International cooperationInternational cooperation Exchange of informationExchange of information Notification of programs, projects, or activitiesNotification of programs, projects, or activities ConsultationsConsultations Harmonization and coordination of national policiesHarmonization and coordination of national policies Establishment of joint management institutionsEstablishment of joint management institutions

Equitable utilization—having “due regard” to the avoidance of harmEquitable utilization—having “due regard” to the avoidance of harm No No a priori a priori preferences—except for “vital human needs”preferences—except for “vital human needs” Factors to be considered:Factors to be considered:

• Natural features;Natural features;• The social and economic needs of the States;The social and economic needs of the States;• Each State’s dependence on the waters in question;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 The effects of actual or proposed uses in one State upon actual or proposed uses in the

other State;other State;• The extent of conservation or economy of use in each State;The extent of conservation or economy of use in each State;• Existing and potential uses;Existing and potential uses;• The availability of alternatives to the planned or existing use;The availability of alternatives to the planned or existing use;• The sustainability of proposed or existing uses; andThe sustainability of proposed or existing uses; and• The minimization of environmental harm.The minimization of environmental harm.

Avoidance of transboundary harm—having “due regard” to equitable utilizationAvoidance of transboundary harm—having “due regard” to equitable utilization