A fresh look at Israeli/Palestinian freshwater issues

With meaningful effort from both sides, the EcoPeace proposal can be a stepping stone for a long-term solution to water problems in the region.

By WENDY B. JACOBS, ROBERT C. BORDONE, HRAFNHILDUR BRAGADOTTIR
December 19, 2016 20:35
3 minute read.
Teddy Park’s fountain water show

Cooling off in Teddy Park’s fountain water show. (photo credit: FUN IN JERUSALEM)

 
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Economic growth and success depend on innovative and resourceful management of natural resources. In Israel and Palestine, among the world’s most arid regions, where high population growth strains natural resources, finding ways to cooperate around water quality and quantity issues is imperative. Cooperation is essential for public health and safety from untreated sewage and agricultural runoff and to meet everyone’s increasing needs for safe water.

Water quality and quantity depends on cooperation precisely because water flows without regard to political boundaries. Some joint management exists already between the Israelis and the Palestinians but it is not adequate to protect their shared waters. As elsewhere in the world, traditional theories of absolute territorial sovereignty and absolute territorial integrity will not effectively solve disputes over water use. Due to the complex and dynamic nature of water, more balanced concepts have emerged, including the concept of equitable utilization, which is based on the idea that while each state has a sovereign right over its water resources, it has to respect the correlative rights of other states.

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In recent decades, international law has evolved around the idea of common management systems that take into account the varying interests and needs of the peoples who share water resources and build on their mutual interest in sustaining the quality and quantity of their shared water. In the end, everyone benefits more from working together than working alone to manage the shared water.

The non-profit organization EcoPeace Middle East has developed a structure for an Israeli-Palestinian water management agreement that, in line with the advancement of international water law, focuses on flexibility and resilience and includes mechanisms for raising and resolving conflicts on an ongoing basis. The desideratum is to create a system capable of achieving results that are equitable and address the interests of both peoples. This cannot be done when the right to water is simply allocated on a fixed and permanent basis. Not only is such an approach too rigid to meet the dynamic needs of all people in the region, but it also does not address the imperative need for everyone involved to share responsibility for preserving the quality of the water and properly managing waste material and pollution.

EcoPeace’s proposed joint water management system represents an approach that can be economically efficient, socially and politically equitable, ecologically sustainable and practicably implementable. It provides a solid conceptual and practical basis for further negotiations. But the proposal is only the first step. Ahead lies the demanding task of putting meat on the bones and creating the level of predictability needed for political and public acceptance. That includes working out procedural details and elaborating substantive rules and principles that will guide joint decision-making on shared water issues. Specifically, more details are needed to clarify how priorities will be set and how compromise will be achieved and then enforced.

For example, the Palestinians and Israelis will likely bring different perspectives on the concepts of economic efficiency and social equitability to the table. While Israelis are likely to place more weight on economic factors and practicability, Palestinians may express a greater need for prioritizing social and political equitability. Ultimately, however, moving this proposal forward is important because both Israelis and Palestinians have equal interests in ensuring ecological sustainability and the protection of their shared water bodies.

Albert Einstein once said that “the significant problems we have cannot be solved at the same level of thinking with which we created them.” The key to creating a lasting framework for cooperation, flexible enough to deal with all imaginable – as well as unimaginable – differences over shared water is new thinking. The proposal put forward by EcoPeace provides just that. With meaningful effort from both sides, the proposal can be a stepping stone for a long-term solution to water problems in the region.

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Wendy B. Jacobs is the Emmett Clinical Professor of Environmental Law and director of the Harvard Law School Emmett Environmental Law and Policy Clinic; she is a lawyer who has practiced with the federal government and in the private sector representing a variety of interests and perspectives on natural resources.

Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and the director of the Harvard Law School Negotiation & Mediation Clinical Program.

Hrafnhildur Bragadottir is an environmental lawyer and consultant who has worked for the government of Iceland and in the private sector on environmental issues and natural resources management. She has an LL.M. degree and a certificate in environmental law from Duke University.

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