1. Introduction to Water and Water Law in the Jordan Valley Joseph W. Dellapenna Villanova University School of Law dellapen@law.villanova.edu

2. Transboundary Water around the World  Cooperative Contexts United States Border Waters United States Border Waters The Rhine Basin The Rhine Basin The Danube Basin The Danube Basin The Rio de la Plata Basin The Rio de la Plata Basin  Conflictual Contexts The Indus Valley The Indus Valley The Mekong Valley The Mekong Valley The Nile Valley The Nile Valley The Tigris-Euphrates Valley The Tigris-Euphrates Valley

3. Water in the Middle East  The largest dry region on the planet  Rivers originate outside the driest parts of the region The rivers are “exotic” The rivers are “exotic” A history of empires built around the control of water A history of empires built around the control of water  Many regions rely on “fossil” water

4. The Jordan River  Arises from the springs on the slopes of Mt. Hermon— considerable dispute as to in which country the springs are located  Three smaller rivers join to form the Jordan just above a natural reservoir—the Sea of Gallilee (Lake Kinneret, or Lake Tiberias)  Flows down into the rift valley to end in a sink (the Dead Sea)  Receives one major tributary— the Yarmuk  Fully exploited, perhaps over exploited

5. Other Water Sources in the Jordan Valley  Nearby Rivers The Litani The Litani Entirely within LebanonEntirely within Lebanon Arises in the Bekaa Valley from the rain over the Lebanese Mountains and Mt. HermonArises in the Bekaa Valley from the rain over the Lebanese Mountains and Mt. Hermon The Orontes The Orontes Arises in the Bekaa ValleyArises in the Bekaa Valley Flows down to Syria and TurkeyFlows down to Syria and Turkey  The Aquifers The “Mountain Aquifer” The “Mountain Aquifer” Generally viewed as three aquifers, with a common sourceGenerally viewed as three aquifers, with a common source All fed from rainfall on the Judean or Palestinian hillsAll fed from rainfall on the Judean or Palestinian hills Not yet fully exploited, but vulnerable to pollutionNot yet fully exploited, but vulnerable to pollution The “Coastal Aquifer” The “Coastal Aquifer” Some dispute whether it is one or several aquifersSome dispute whether it is one or several aquifers Today overexploited and suffering from salt water intrusionToday overexploited and suffering from salt water intrusion

6. The Economic Context  Israel A semi-arid land A semi-arid land A burgeoning population A burgeoning population European standards of consumption European standards of consumption  Jordan An arid land An arid land A burgeoning population burdened with masses of refugees A burgeoning population burdened with masses of refugees Consumes about one-third as much water as Israel with a similar population Consumes about one-third as much water as Israel with a similar population  Lebanon Arguably a water-surplus state Arguably a water-surplus state A burgeoning population burdened with masses of refugees A burgeoning population burdened with masses of refugees Plagued by political instability Plagued by political instability  Palestine A semi-arid land A semi-arid land A burgeoning population A burgeoning population Water consumption levels even lower than in Jordan Water consumption levels even lower than in Jordan The Jordan River unusable by the time it reaches the Palestinian territories The Jordan River unusable by the time it reaches the Palestinian territories Water usage never under Palestinian control Water usage never under Palestinian control Large quantities within the occupied territories consumed by Israeli settlements Large quantities within the occupied territories consumed by Israeli settlements  Syria Historically not dependant on the waters of the Jordan or the Yarmuk Historically not dependant on the waters of the Jordan or the Yarmuk Now seeks some of this water to supply the growing city of Damascus Now seeks some of this water to supply the growing city of Damascus Well placed to interfere with water usage in the other national communities Well placed to interfere with water usage in the other national communities

7. The Problem of Water Sharing in the Jordan Valley  Early plans for water development Early appraisals Early appraisals The Lowdermilk Plan The Lowdermilk Plan The Johnston Plan The Johnston Plan The National Water Carrier The National Water Carrier Eighty years of covert cooperation Eighty years of covert cooperation  Alternative sources of water Conservation Conservation Recycling Recycling Importing water Importing water Desalination Desalination Weather modification Weather modification

8. The Current Situation  The Israeli-Jordanian Peace Treaty (1994) Recognizes that the available water is insufficient to meet all needs Recognizes 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 cooperate to develop new sources Promise not to manage or develop water in a way that harms the other party and to cooperate to develop new sources Small re-allocations of water resources Small re-allocations of water resources  The Oslo Accords (1993 to present) Oslo I—The Declaration of Principles (1993) Oslo I—The Declaration of Principles (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—The Interim Agreement (1994) Oslo II—The Interim Agreement (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 continueExisting 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 operationsA Joint Water Committee to approve policies and Joint Supervision Teams to supervise operations Reinforces Palestinian dependence of Israeli facilitiesReinforces Palestinian dependence of Israeli facilities Under the infitada (1999 to present) Under the infitada (1999 to present)  The Tripartite Agreement (1996)

9. What Lessons Can International Law Teach?  Only riparian states have a legal claim upon a water resource  Traditional (competing) theories Absolute Territorial Sovereignty Absolute Territorial Sovereignty Absolute Riverine Integrity Absolute Riverine Integrity Equitable Utilization Equitable Utilization  States are developing a new governing paradigm - joint, basin-wide management (sometimes called “equitable participation”)  The Berlin Rules on Water Resources available at www.ila- hq.org/pdf/Water%20Resources/Final%20Report%202004.pdf 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 regarding water resources Approved by the ILA, 21 August 2004 as a summary of contemporary international law regarding 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

10. Selected International Rules Applicable to All Waters  Participatory Management A right of access to water A right of access to water A right to a voice in decisions affecting one’s life A right to a voice in decisions affecting one’s life Access to education Access to education Protection of particularly vulnerable communities Protection of particularly vulnerable communities A right to compensation A right to compensation Access to legal remedies Access to legal remedies  Sustainability and the Minimization of Environmental Harm Ecological integrity Ecological integrity Ecological flowsEcological flows Alien speciesAlien species Pollution prevention or control Pollution prevention or control Hazardous substances Hazardous substances Prior assessment of impacts Prior assessment of impacts Precautionary principle Precautionary principle Least net environmental harm Least net environmental harm Compensation for injuries (“polluter pays”) Compensation for injuries (“polluter pays”)

11. International Rules Applicable to Internationally Shared Waters  International cooperation Exchange of information Exchange of information Notification of programs, projects, or activities Notification of programs, projects, or activities Consultations Consultations Harmonization and coordination of national policies Harmonization and coordination of national policies Establishment of joint management institutions Establishment of joint management institutions  Equitable utilization—having “due regard” to the avoidance of harm No a priori preferences—except for “vital human needs” No a priori 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 other State;The effects of actual or proposed uses in one State upon actual or proposed uses in the 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 utilization