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Towards an interdisciplinary approach to water basin analysis and the resolution of international water disputes

3.1. Introduction
3.2. The nature of water conflicts
3.3. Paradigms for analysis of international water conflicts
3.4. An interdisciplinary approach to water basin analysis and conflict resolution

Till taught by pain, men know not water's worth.— Byron


In chapter 2, I presented the hydropolitical background of the Jordan River watershed, which has been described as "having witnessed more severe international conflict over water than any other river system in the Middle East" (E. Anderson in Starr and Stoll 1988, 10). I concluded the chapter with the question "What is to be done?" In this chapter, I develop a framework to try to answer that question.

Just as natural water flow ignores international boundaries, so, too, does the evaluation of water resources transcend the analysis of any single discipline. Water, by nature, necessitates an interdisciplinary analysis. Through its physical components, we measure the quantity, quality, and variability of water sources. Because we need to develop an infrastructure to harness water for human use - storage and delivery systems, for example - an engineering component should be incorporated into the analysis. Furthermore, because water can be owned, bought, sold, and traded, its analysis takes on legal, economic, and political aspects as well. Finally, because water is a resource that, when scarce, can induce both conflict and cooperation, water can become a subject for alternative dispute resolution (ADR).

After a short description of the particular nature of international water conflict, and of water as a unique strategic resource, this chap ter explores separately how each of several disciplines treats water as a resource and as a subject of conflict. The disciplines offered are the physical sciences, law, political science, economics, game theory, and ADR.

In the final section, "An Interdisciplinary Approach to Water Basin Analysis and Conflict Resolution," I try to bring together lessons learned through each discipline in a single framework for evaluation. The technical and policy options that might be proposed for any watershed are listed, and a method for evaluating each option, dependent on three measures of viability - technical, economic, and political - is described. In chapter 4, I apply this "interdisciplinary approach" specifically to the Jordan River watershed.

The nature of water conflicts

As a nation reaches and surpasses its hydrologic limits, impetus toward either international conflict or cooperation may increase. For the purposes of this work, I define "competition" as two or more entities, one or more of which perceives a goal as being blocked by another entity (what Frey [1992] refers to as an "issue"). If power is exerted to overcome the perceived blockage, I refer to this as "conflict." If there is coordination of behaviour among entities to realize at least some common goals, I (after Frey 1992) refer to this as "cooperation." The strategies one might employ to further any of these ends are discussed in later sections. To understand how this competition/cooperation dichotomy may diverge, however, we should delve briefly into the nature of water conflict.

To begin with, we might draw parallels between evolution and conflict resolution to see what lessons nature may provide. As species evolve, they become more efficient in their use of the scarce resources they need for survival. If the resource becomes more scarce, the species must either become adept at competing with other species, or it must learn to cooperate and develop symbiotic relationships in order to survive. Maruyama (1963), in his discussion of the "second cybernetics," gives the case of a moth and its predator as an example of resource competition, which, itself, becomes more efficient as the interspecies deviation amplifies - that is, as the differences between them are enhanced. The moth develops better camouflage to avoid its predator, which in turn becomes more adept at discovering the moth's camouflage.

Competition seems to be the more common strategy in human re source conflicts, and, as in nature, once the path towards competition is chosen, Maruyama's "deviation-amplification" would tend to increase.

On the other hand, nature provides lessons in cooperation, as well. A rainforest plant that hosts an ant population, for example, secretes a glucose-rich liquid on which the ants thrive and they, in turn, trim back other plants and vines that compete for sunlight with their host. Such true examples of symbiosis may seem rare, unless one considers that each individual in nature is made up of single cells, which cooperate to achieve the most efficient distribution of scarce resources within that individual.

As in nature, human conflict over resources at its most basic level can be dealt with through either competition or cooperation. Returning to the lessons of cybernetics, both options might be seen as positive feedback loops regarding relations with neighbouring states, in that each aspect reinforces the other : however, only the latter case can truly be seen as "positive." Competition begets ill will, which increases competition, while, conversely, cooperation encourages better relations, thus creating an environment conducive to increased cooperation.

Competition - cooperation

The choice between ever-increasing conflict or cooperation in hydropolitics is discussed by Frey (1992). Frey cites the "Catastrophe Theory" of sociology (E. Zeeman, cited in Frey 1992), which describes how small changes in a social structure, once begun, can develop and increase quickly, much like the effects of resonating sound waves amplifying to shatter a wineglass:

The tension and threat (of transnational water shortage) can apparently be resolved either by sharply escalating the conflict or by accepting the necessity of some form of cooperation. Dire conditions promote cooperation, but those same conditions also make severe conflict more likely. (Frey 1992)

How salient is water as an issue of conflict? Maslow (1954) categorizes and ranks basic human needs according to their level of motivating behaviour. From inner to outer, these are (1) physiological needs, (2) safety needs, (3) belongingness and love, (4) esteem, and (5) self actualization. Water for personal consumption is clearly a most basic human need, as would be water for subsistence agriculture. Water allocated to export, or cash-crop agriculture, or industry, would probably fall within safety needs still a fairly fundamental issue. Water is occasionally used as an esteem item, in elaborate fountains or private swimming pools for example, and even for self-actualization, in baptisms and other ritual purification.

Because of the properties inherent to human water needs, competition over water as a scarce resource, when it occurs, can be especially intense:

At the individual level, the demand for water is highly inelastic, although fairly readily satiable. Personally, we do not need much, but we need that small amount urgently and reliably ... The sinister corollary of this, however, is that if such basic needs are not met, they override more sophisticated interests and become absolute and obsessive. (Frey and Naff 1985)

Along with water's particular salience, it has other singular and elusive characteristics that differentiate it as a unique strategic resource. Like timber or agriculture, fresh water is usually treated as a renewable resource. Next year's rains are counted on as inevitable, albeit allowing for some deviation in amount. Much water, however, particularly fossil groundwater, is nonrenewable, more like oil or minerals. Unlike most other renewable and nonrenewable resources, however, property rights for water, surface or ground, are far from clear.

This is complicated by the fact that water, like air resources, is both pollutable, from point and non-point sources, and mobile, adding another possible point of contention between states. Moreover, water is creatable, or at least purifiable, with the input of enough energy. This adds economic ambiguity to legal ambiguity, by the need to know both from where the water comes and to what use it will be put, before determining efficient allocation.

Water, in short, seems to share only the most contentious characteristics with other resources, particularly in the international setting, making analysis of international water conflicts especially difficult.

Paradigms for analysis of international water conflicts

3.3.1 Physical sciences and technology
3.3.2 Law
3.3.3 Political science
3.3.4 Economics
3.3.5 Game theory
3.3.6 Alternative dispute resolution (ADR)

It is a truism of conflict analysis that there will never be a lack of subjects to study. Conflicts abound, from interpersonal to international, and approaches to solving them are almost as numerous. As we have seen, water conflicts are particularly difficult to define, evaluate, and resolve.

What follows is a brief description of how various disciplines approach conflict in general, and international water conflict in particular.

Physical sciences and technology

The technical implementers of water policy are the physical scientists, who have traditionally borne the responsibility for making sure that water supply meets demand. These hydrologists, hydrogeologists, engineers, and chemists manage the supply, delivery, storage, and quality of each entity's water to match the needs of each user. On the demand side, agricultural researchers develop new delivery systems, greenhouse technology, and bioengineered crops to lower the need for water on the farm. This section examines the contribution of the physical sciences to alleviation of the water conflict in the Middle East by offering possibilities both to increase supply and to decrease demand.

Increasing supply - New natural sources

No new "rivers" will be discovered in the Middle East, but increased catchment of winter flood water anywhere along an existing river system can add just as well to the water budget. This applies to small wadis as well as to large storage projects such as the Maqarin Dam, which alone could contribute a saving of about 330 MCM/yr by storing winter run-off that otherwise is lost to the Dead Sea. When it is possible to store water underground through artificial groundwater recharge, even more water is saved - that not lost to evaporation in a surface reservoir. Less evaporation also means less of a salinity problem in the remaining water. Israel currently stores 200 MCM/yr from its National Water Carrier project by this method (Ambroggi 1977, 25).

Underground is the only place to look for any major new water supplies within the basin. In 1985, Israel confirmed the discovery of a large fossil aquifer in the Nubian sandstone underlying the Sinai and Negev deserts. Israel is already exploiting 25 MCM/yr from this source and is investigating the possibility of pumping 300 MCM/yr in the twenty-first century (Issar 1985,110). Jordan has also been carrying out a systematic groundwater evaluation project in recent years, and has begun to tap the fossil Disi aquifer along the Saudi border for 80 MCM/yr (E. Salameh in Garber and Salameh 1992, 114).

Increasing supply - New sources through technology

Projects such as iceberg-towing and cloud-seeding, though appealing to the imagination, do not seem to be a likely emphasis for future technology: the former involves great expense and the latter can be, at best, a small part of a very local solution. Although a representative of Israel's water authority claims that 15 per cent of Israeli annual rainfall is due to their cloud-seeding programme (Siegel 1989), this has been documented only within the northern Galilee catchment and results seem not to have the consistency necessary for reliable planning.

The three most likely technologies to increase water supply for the near future are desalination, waste-water reclamation, and water imports.


The Middle East has already spent more on desalinating plants than any other part of the world. The region has 35 per cent of the world's plants with 65 per cent of the total desalinating capacity, mostly along the Arabian peninsula (E. Anderson in Starr and Stoll 1988, 4). Israel, too, included plans for both conventional and nuclear desalination plants in its water planning until 1978, when they were abandoned as "technologically premature and economically unfeasible" (Galnoor 1978, 352).

It is this problem of cost that makes desalinated water impractical for most applications. Although drinking-water is a completely inelastic good - that is, people will pay almost any price for it - water for agriculture, by far the largest use in the Middle East, has to be cost-effective enough for the agricultural endproduct to remain competitive in the market-place. The present costs of about US$0.80-$1.50/m3 to desalt sea water and about $0.30/m3 for brackish water (L. Awerbuch in Starr and Stoll 1988, 59), do not make this technology an economic water source for most uses. Efforts are being made, however, to lower these costs through multiple use plants (getting desalinated water as a byproduct in a plant designed primarily for energy generation), increased energy efficiency in plant design, and by augmenting conventional plant power with solar or other energy sources.

One additional use of salt water is to mix it with fresh water in just the quantity to leave it useful for agricultural or industrial purposes, effectively adding to the freshwater supply. This method was used in Israel in the 1975/76 season to add 141 MCM/yr to the water budget (Kahhaleh 1981, 40).


The other promising technology to increase supply is cleaning and reusing waste water. Two plants in Israel at the time of writing treat 110 MCM/yr or 40 per cent of the country's sewage for reuse, and projections call for treating 80 per cent by 1990 (State of Israel 1988, 8). The treated water is currently used to irrigate some 15,000 hectares - mostly cotton (Poster 1989b, 42). It is anticipated that full exploitation of purified waste water will eventually constitute 45 per cent of domestic water needs (State of Israel 1988, 147). This type of project could be developed throughout the region (a World Bank loan helped to finance the Israeli project). The obvious limit of this technology is the amount of waste water generated by a population.


Other sources of water could come from neighbouring watersheds that currently have a water surplus. At one time or another, Israel has eyed the Litani and the Nile, Jordan has looked to the Euphrates, and all of the countries in the area have been intrigued by the "Peace Pipeline" proposed by Turkey in 1987. The western line of this project would deliver 1,200 MCM/yr from the Seyhan and Ceyhan rivers to Syria, Jordan, and Saudi Arabia (C. Duna in Starr and Stoll 1988, 119). Despite Prime Minister Özal's belief that "by pooling regional resources, the political tensions in the area can be diffused," at a cost of US$20,000 million this project probably will not be diffusing tensions in the near future.

Other recent proposals include bringing Turkish water to Israel in barges (Starr 1991), or towed in plastic "Medusa bags," each with a volume of 1 MCM (Cran 1992). Boaz Wachtel (1992) has devised a branch of the "mini-peace" pipeline to come from Turkey, through Syria, to the Golan Heights. This last branch would be in an open canal, doubling as an antitank barricade, then dropping water to both Jordan and Israel for hydropower.

Some proposals have focused on economic incentives as a means of overcoming the political reluctance to transboundary water transfers. Countries upstream to Egypt may have a legal say in any transfer of Nile water, for example. Dinar and Wolf (1992) suggested a technology-for-water exchange between Israel and Egypt, and calculated the economic "pay-off" that would be generated to induce such co operation. Another cost-cutting option might be to use facilities that are already in place, such as the TAP line, an abandoned oil pipeline that extends from Lebanon to the Persian Gulf.

Once additional water is introduced to the Jordan basin, arrangements can be made for exchanges within the basin from one region to another for the most efficient overall distribution. Nile water, for example, could be brought to Gaza and/or the Israeli Negev Desert for less expense than most alternative sources (Kelly 1989; Dinar and Wolf 1991). Increased water from the northern Jordan could then be made available to other parts of Israel, the West Bank, or Jordan. Similar exchanges could be arranged for Litani or Turkish water as well.

Decreasing demand

The guiding principle to decrease demand for any scarce resource should be, "Can it be used more efficiently?" This does not always work, however, especially when there is an emotional value associated either with the resource itself or with the proposed solution. Unfortunately, when dealing with water, emotions usually charge both aspects of the issue. For example, one way to cut long-term demand for Middle East water is to limit population growth in the region. However, in an area where each national group and religious and ethnic subgroup seems to be locked in a demographic race for numerical superiority, this is not very likely to occur. Many of the sectors most susceptible to efficient restructuring are also those most laden with emotion.

Some aspects of decreasing agricultural water demand are noncontroversial and have made the region a showcase for arid-agriculture water conservation. Technological advances such as drip-irrigation and micro-sprinklers, which reduce water loss by evaporation, are about 20-50 per cent more efficient than standard sprinklers and very much more so than the open-ditch flood method used in the region for centuries (Hillel 1987). Computerized control systems, working in conjunction with direct soil moisture measurements, can add even more precision to crop irrigation.

Other water savings have come through bioengineered crops that exist on a minimal amount of fresh water, on brackish water, or even on the direct application of salt water (C. Hodges in Starr and Stoll 1988, 109-118).

As a result of using a combination of these conservation methods, Israel's irrigated area has increased from 172 million hectares in 1973 to 220 million hectares in 1988, with total production increasing by 100 per cent, while water consumption for agriculture remained nearly constant (State of Israel 1988, 144). It has been speculated that the irrigated area in the West Bank could, similarly, be doubled without increasing the demand for water (Heller 1983,130). Meanwhile, these techniques have been spreading throughout the region, and it is reasonable to assume that increased water efficiency will continue to be an important aspect of Middle East agriculture.

Encouraging cooperation in research and development between the countries in the region, possibly in cooperation with other areas facing similar problems, such as the arid south-west United States, can help with this diffusion of technology. Some such programmes exist, but they usually exclude pairing of any two countries with hostile relations, creating a serious technological barrier precisely where the free flow of information and technology is most important. Starr and Stoll (1988) have advocated regional research centres for the Middle East, sponsored by the United States.

Emotional charge enters into the water debate when it is suggested by economists or planners that greater hydrologic efficiency might be gained if less water were used in agriculture in general, as described in the section on economics, below.

Variability in supply and demand

It should be emphasized that an analysis of such a fragile "hydropolitical" situation as exists in the Middle East is actually more complicated than so far discussed, because of tremendous variability in the system. Some fluctuation is natural. Even in "normal" years, rainfall is extremely variable in both space and time. Almost all of the year's rain falls in the four winter months, and varies from the lush Mount Hermon and Golan Heights, to the desert areas around the Dead Sea. Further, average annual rainfall can vary from year to year by as much as 40 per cent (Stanhill and Rapaport 1988). These fluctuations introduce tremendous challenges to water managers and the water delivery and storage infrastructure on which they rely.

Middle East hydropolitics are made even more difficult to plan for by human-induced variability. Aside from the volatile nature of politics in general, and Middle East politics specifically, two other factors complicate the present precarious situation - one climatic, and one demographic.


Many climatologists are currently investigating what changes will occur in regional weather patterns, given an anticipated rise in average global temperature (see, for example, Lonergan and Kavanagh 1991). One possible climatic scenario is a northward shift in the distribution of winter rainfall, away from the Jordan Basin. Difficult though they are to predict on a regional scale, the effects of shifting annual precipitation patterns in the Middle East could have profound impacts on the politics of the region, depending on how dramatic the changes are that actually develop. As global, and finally regional, modelling and forecasting improve, this subject will have to be investigated further in order for appropriate planning measures to be taken.


A second, more imminent, change is already beginning to occur in the region, which could dramatically affect issues of water distribution and usage. Israel expects at least a million Soviet immigrants in the coming decade, possibly two million (Bank of Israel 1991). Jordan recently absorbed 300,000 Palestinians who left Kuwait in the aftermath of the Gulf War. Furthermore, if political negotiations were to result in an autonomous Palestine on the West Bank, that entity might absorb a percentage of the 2.2 million Palestinians registered worldwide as refugees (Jaffee Center 1989). Heller (1983) has suggested that 600,000 refugees might immigrate to the West Bank under such conditions.

Based on current domestic consumption, Israel would require an additional 94 MCM/yr, or a little over 5 per cent of the current water budget, just to provide for personal use by one million immigrants. Jordan would need 17.5 MCM/yr additional supply for its refugees, and the West Bank would need an additional 15 MCM/yr, or a 14 per cent increase in its water budget, to provide for the personal water needs of 600,000 immigrants.

Admittedly, these numbers represent simple extrapolations based on current water use. However, given not only that hydrologic limits are being reached but also that annual supplies are routinely being surpassed, questions as to the absorptive capacity of the region's water resources for immigrants and refugees should at least be asked.


Water supply in general, and groundwater availability and flow in particular, are difficult to evaluate. Estimates of rainfall, evaporation, transpiration, run-off, and percolation to the water-table each can be in error, even by orders of magnitude. Because each measurement adds reliability to available data, the difficulty in measuring and evaluating water resources may add impetus to dialogue within a watershed. Both Kolars (1992) and Starr (1992) have suggested cooperative water data gathering and sharing as an important starting point for regional cooperation.


Authors who have specifically addressed international water law include Caponera (1985), Cano (1982; 1989), and Bilder (1975), while Utton (1982), Hayton (1982), and Hayton and Utton (1989) have focused on the law of international aquifers.

What follows is a brief description of the current state of international water law, the legal ambiguities inherent to Jordan River hydropolitics, and some alternative approaches that others have taken to resolve similar disputes. One procedural note: the critique that follows is of the applicability and enforceability only of the international legal structure - not of treaties. It is argued that, while a legal code can offer general guidelines, it is precisely a treaty, born out of the process of conflict resolution, that offers an appropriate means for agreement.

International water law

The Charter of the United Nations stipulates that states in dispute have an obligation to "first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." Of the options presented, only "judicial settlement" refers specifically to law. According to Alheritičre (1985), "states not uncommonly still prefer to bring their dispute to an ad hoc arbitral forum rather than settling it in well established courts." When one examines the painstakingly incremental movement of the international legal structure to grasp and incorporate hydrologic complexities, this lack of legal emphasis in conflict resolution is not surprising.

According to Cano (1989), international water law did not substantially begin to be formulated until after World War I. Before that time, human consumption, industrial waste, and diversion for irrigation, were not deemed major issues. Rivers were used primarily for navigation and log flotation, both of which were covered for Europe in the Congress of Vienna of 1815.

During this century, organs of international law tried to provide a framework for increasingly intense water use. The concept of a "drainage basin," for example, was accepted by the International Law Association in the Helsinki Rules of 1966, which also provided guidelines for "reasonable and equitable" sharing of a common waterway (Caponera 1985). Article IV of the Helsinki Rules describes the overriding principle:

Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.

Article V cites all of the factors that must be taken into account for "reasonable and equitable" use, including, but not limited to, the following (cited in Caponera 1985, 567; Housen-Couriel 1992, 5): (a) the basin's geography and the extent of the drainage area in the territory of each basin state; (b) the basin's hydrology, including the contribution of water by each basin state; (c) the climate affecting the basin; (d) past and existing utilizations of basin waters; (e) economic and social needs of the basin states; (f) population dependent on the waters of the basin within each basin state; (g) comparative costs of alternative means of satisfying (e); (h) availability of other resources; (i) the avoidance of unnecessary waste in the use of the waters; (j) the practicability of compensation as a means of adjusting conflicts among users; (k) the degree to which a state's needs may be satisfied, without causing substantial injury to a co-basin state. There is no hierarchy to the above components of "reasonable use"; rather, they are to be considered as a whole. One important shift in legal thinking in the Helsinki Rules is that they address rights to "beneficial use" of water, rather than to water per se (Housen-Couriel 1992, 5).

The International Law Commission, a body of the United Nations, was directed by the General Assembly in 1970 to study "Codification of the Law on Water Courses for Purposes other than Navigation" (Cano 1989). It is testimony to the difficulty of marrying legal and hydrologic intricacies that the Commission, despite an additional international call for codification at the UN Water Conference at Mar de Plata in 1977, has not yet completed its task. After 20 years and nine reports, only a few articles have been provisionally approved.

The final product, which also only establishes general principles for, for example, "equitable use and apportionment" and "prohibition of considerable, substantial, or appreciable harm," would not have the force of law until approved by the General Assembly (Falken-mark 1987; Solanes 1987). The general principles being codified include (after Caponera 1985):

  1. Common water resources are to be shared equitably between the states entitled to use them, with related corollaries of
  1. limited sovereignty,
  2. duty to cooperate in development, and
  3. protection of common resources.
  1. States are responsible for substantial transboundary injury originating in their respective territories.

The problems arise when attempts are made to apply this reasonable but vague language to specific water conflicts. According to Rogers (1991), there are at least five, often conflicting, doctrines for sharing water in international basins:

  1. Absolute sovereignty. A state has absolute rights to water flowing through its borders.
  2. Riparian rights. Any territory along a riverway has rights to a relatively unchanged river.
  3. Prior appropriation. "First in time, first in right."
  4. Optimum development of the river basin. The basin is considered a single hydrologic unit, and it is incumbent upon states to develop it accordingly.
  5. Reasonable share or equitable use. Provides rights dependent on some or all of the above criteria, but is difficult to interpret.

More locally to the region in question, both Talmudic and Islamic law each address water rights, the latter in somewhat more detail. Talmudic law mentions only surface water, and that only in the context of irrigation, providing that an upper riparian should have rights to divert for irrigation prior to downstream neighbours. Not surprisingly, given its roots in arid regions and in societies so dependent on wells and oases, the most sophisticated historical treatment of groundwater came out of Islamic law. The Islamic code grants ownership to the person who digs a well, provides a surrounding "prohibited area" to prevent drawdown, and obligates the owner to share domestic (although not irrigation) water with others (Hayton 1982). Bedouin code likewise provides for an order for watering at a well, with the largest family having first rights.

It should be noted that one aspect of water law in today's Middle East - the issue of ownership - is somewhat more clear within each nation than it is, for example, in the United States. In all of the countries riparian to the Jordan River, as well as in most of Europe, water within a nation's borders is nationalized. What users gain rights to is the use of water, not ownership of the water itself.

As might be imagined, issues of international groundwater have been especially perplexing. Before the Helsinki guidelines, international agreements referred only to specific wells and "in no event is there any manifestation that a whole international aquifer was intellectually comprehended, much less embraced by treaty" (Hayton 1981).

Since the Helsinki Agreement, which mentions "under-ground water" in passing, some progress has been made, particularly linking ground and surface water, and allowing for pollution control. Nevertheless, discussion of international groundwater still takes place "'on the frontier,' if not in no man's land" (Hayton 1981). Probably as a consequence, as of 1982, international courts have issued no decisions specifically on the question of groundwater (Utton 1982).

Even given a detailed law code and a more authoritative court, initial negotiations would still be required, or at least somewhat conciliatory relations would be necessary, between the states involved. The International Court of Justice refers to the following guidelines, in order of precedence, for its rulings (Cano 1989):

  1. The law of treaties and conventions ratified by governments,
  2. Customs,
  3. Generally accepted principles,
  4. Decision of the judiciary and doctrines of qualified authors.

Moreover, the Court can hear cases only if the parties involved consent.

To summarize, then, general guidelines, although not binding law, are the best that can be expected from the legal structure, for the following reasons (after Caponera [1985] and Cano [1989]):

  1. International law is founded on the consent of the nations that participate in the system. A state with pressing national interests can therefore disclaim the court's jurisdiction or findings.
  2. There is no superpower or supralegal authority interested in, or capable of, dictating and enforcing international law, except in the most extreme cases.
  3. Hydrologic complexities, which are site specific and often poorly understood, preclude the application of sweeping legal generalities.

The legal challenge of Jordan River hydropolitics


Given the difficulty of defining the rights of riparians in international law, one can imagine the compounded complications of applying such a code where the riparian positions themselves, and resulting legal claims, continue to shift over time. Lebanon, Syria, and Jordan were all upper riparians between 1948 and 1967, and their corresponding legal claim, therefore, was mostly of "absolute sovereignty" of the Jordan River. This conflicted, during the Johnston negotiations (1953-1955), with the United States' desire for "optimum development," and the Israeli claim to its "riparian rights." Because Jordan was somewhat restrained, being also a lower riparian further downstream, a compromise Arab claim was of rights to water allocation proportional to a territory's contribution to its source (Lowi 1985).

From 1964 through 1967, Syria and Lebanon began building a diversion of the Jordan headwaters, again claiming "absolute sovereignty," to thwart a downstream Israeli diversion that threatened Jordanian water supply. The Jordanians challenged the Israeli plan to move water out-of-basin, arguing that it was entitled to the river's "absolute integrity," and that first priority should be given to in-basin uses (Naff and Matson 1984).

After 1967, Israel became the upper, and predominant, riparian and moved towards a claim of "absolute sovereignty," although remaining, for the most part, within the confines of the (unratified) Johnston allocations (Naff and Matson 1984).

Complicating riparian positions even further is the unresolved issue of groundwater. Israel currently receives about 30 per cent of its water budget from aquifers that recharge in the West Bank. Ownership and rights to this water are in conflict, with Israel claiming "prior appropriation," limiting Palestinian groundwater development in the West Bank. Palestinians have objected to this increasing control. As mentioned earlier, legal arguments often refer, at least in part, to the Fourth Geneva Convention's discussion of territories under military occupation (see, for example, Dillman 1989; El-Hindi 1990). In principle, it is argued, the resources of occupied territory cannot be exported to the benefit of the occupying power. Israeli authorities reject these arguments, usually claiming that the Convention is not applicable to the West Bank or Gaza because the powers that these territories were wrested from were not, themselves, legitimate rulers (El-Hind) 1990). Egypt was itself a military occupier of Gaza and only Britain and Pakistan recognized Jordan's annexation of the West Bank in 1950. Furthermore, it is pointed out that the water that Israel uses is not being exported but, rather, flows naturally seaward and, because Israel has been pumping that water since 1955, it has "prior appropriation" rights to the water. Both Israel and Jordan insist that any future allocation to the West Bank must come out of the other's share (Naff and Matson 1984).


As mentioned previously, international legal code is applicable only to states that adhere to a court's jurisdiction. This principle runs into two types of problems in the Jordan watershed:

  1. States. Except for Egypt, no Arab state has recognized Israel's right to exist. One reason given for collapse of the Johnston negotiations was that ratification would have implied recognition of Israel's legitimacy (Wishart 1990). Israel, in turn, does not recognize the national aspiration of Palestinians who, in the absence of sovereign territory, are relegated to observer status in most international forums.
  2. Jurisdiction. As mentioned above, Palestinians have claimed that much of Israeli action on the West Bank, including control of water resources, violates the Geneva Convention protecting civilians under military occupation (Ataov 1981). Israel rejects the applicability of the Convention to these territories, claiming that, since Jordanian annexation of the West Bank in 1950 was not widely recognized in the international community, Israeli presence is not legally "occupation."

As seen, submission of the dispute over the Jordan River to the international legal system would strain the existing state of interpretation and enforcement well past its current limits.

Alternate legal venues: Treaties and river commissions

In contrast to the development and application of a general law code, treaties and river commissions have been established and perpetuated for water systems throughout the world. They were created through direct or indirect agreements, negotiation, or mediation, even between hostile states.

According to Rogers (1991), there are more than 200 river basins shared by two or more countries. This accounts for more than 50 per cent of the land area of the earth, and more than 280 treaties have been negotiated to resolve the inevitable water conflicts. Treaties are brought about either directly between the parties involved (ne gotiation) or with the help of a third party (mediation). A treaty, once ratified, has the force of law and is the highest precedent recognized by the International Court of Justice (Cano 1989).

Negotiating a treaty is often the first step in ongoing conflict resolution. Onethird of all international agreements contain compulsory dispute settlement clauses (Alheritičre 1985). One method of providing a forum to resolve disputes is through the establishment of a river commission. For friendly nations, this process might take place directly, between only the parties involved. A good example is the Rhine River Commission, established in 1831 after a lengthy process dating back to 1785. The Commission, with representatives from six nations, provides consultation and technical assistance, although it can also undertake research and make non-binding recommendations. Commissions exist for the Danube, for US-Canadian joint waters, and for dozens of shared waterways throughout the Americas, Europe, and Africa (Caponera 1985).

If relations are less friendly, commissions can be established through the "good offices" and sponsorship of an interested third body. One example is the Indus River Treaty of 1960, which established the Permanent Indus Commission between India and Pakistan with heavy involvement of the World Bank (Caponera 1985). Under the terms of the treaty, the basin was divided and developed, giving each nation exclusive rights to its own tributaries. Any cooperative measure requires unanimity among the Commission members (Saliba 1968). Another example is the Committee for the Lower Mekong River, established in 1957 between Cambodia, Laos, Thailand, and Viet Nam, with close cooperation with the United Nations. Along with hydrologic and management achievements, the Committee deserves special mention for operating uninterruptedly since its inception, despite political differences and occasional armed conflict (Caponera 1985).

Treaties and river commissions have reached a certain level of success, probably because they fill precisely the gaps left in generalized international water law. They address only local conditions and incorporate the vested interests of the specific parties in conflict. In this context, it is not surprising that most law schools in the United States now offer courses in environmental negotiation (Falkenmark 1987). The initial process still requires a certain amount of good will on both sides or, barring that, particularly strong encouragement from a third party. The challenge is to get the parties together initially and, once there, to induce ongoing cooperation. This is a process best served by ADR strategies, as addressed in the following sections. Nevertheless, as Robert Hayton (1982), a professor of law himself, concludes, "just as war is too important to be left to the generals, water law is too important to be left to the lawyers."

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