13 June 2012

Israelis, Palestinians, and Water Rights

The water discourse
Water, like air, is a basic human need, and is nearly universally accepted as a basic human right. However, what is accepted as a human right in theory does not always translate to its availability in practice. Nowhere is the division between the concept of human rights and how they are applied in practice more clear than in the Middle East, and nowhere in the Middle East as much as the contested, occupied West Bank and Gaza Strip, because of the location, history, and strategic importance. In the current dialogue, water control is incorrectly framed as a zero-sum game, where if one party wins the other loses, and each side of the water debate has their own version of the facts. Israel and Palestine, locked into the relationship they are in by mutual antagonism, appear to be at a stalemate. However, it is possible that this stalemate can be broken from within Israel's legal system. Water has been part of the regional discourse since before Israel became a state, and there has long been conflict over water and the possession of natural resources there. In 2001, former United Nations Secretary-General Kofi Annan ominously warned that competition for fresh water “may well become a source of conflict and wars in the future." 

This sentiment is not new; in 1985, Dr. Boutros Ghali, then the U.N. Secretary-General, famously said that the next war fought in the Middle East would not be about politics but about water. But water is politics. The politics of land, especially in the arid desert regions of Israel and the Palestinian territories, is always the politics of water, as well; the disparity in quality of life is starkly illustrated in photos taken at the lands' ever-changing borders, where the neat green terraces of unauthorized Israeli settlements give way to the dusty, disheveled roads of Palestine. The difference between the two territories are due to various mechanisms of conflict and hegemony, but water and lack thereof illuminate them and make them visible. The story of water in the West Bank and Gaza is a microcosm of water politics, and as such it is incredibly complex, a shifting spiral of conflict and counter-conflict that stretches back to the creation of Israel. While it is very rare that actual full-blown wars erupt with water as a trigger, shortages or enforced scarcity does have a major role in many conflicts; the reason that these conflicts do not bloom into actual war is that water is so integral to human survival and so inextricably tied up in power structures that a full-scale war would mean a loss for both sides. Because of water's relationship to power, the stronger state inevitably acts as water's gatekeepers, and the weaker state takes what it is given because it has no alternative, in what water conflict theorists call “water hegemony."

The West Bank

The West Bank sits atop an enormous supply of underground fresh water known as the Mountain Aquifer, which supplies about a quarter of Israel's water and nearly all of Palestine's. Currently, Israel controls all the water in the West Bank.  The daily per-capita use by Israeli settlers is far greater than Palestinians in the same area. However, it is difficult to measure exactly how much more water is used as Israel, citing security concerns, does not release many statistics on water usage in the occupied territories – estimates are anywhere from three to ten times higher. According to the humanitarian group B'Tselem, Israel's per-capita water consumption ranges between 200 and 250 liters per day, but Palestine's is about 102, dropping down to 20 liters per day in some parts of the West Bank. The recommended minimum daily use for drinking, cooking, and sanitation is 100 liters per day, or about ten flushes of an American toilet.  According to a report from Amnesty International, the half-million Israelis who occupy the West Bank use as much or more water than the Palestinian population of more than two million. Israel could not exist the way it does today without the water supplied by the Mountain Aquifer.

Gaza

Tiny, heavily populated Gaza consists mostly of Palestinian Arabs – only a small part of its population are Jewish settlers. It is much drier than the West Bank, and its only source of fresh water is an aquifer known as the Coastal Aquifer or the Gaza Aquifer. Palestinians extract far more than they replace every year. As a result of this overextraction, the water tables are dropping and seawater rushes in to replace the fresh water; in many places, the water is saline, which damages crops and soil. Additionally, many of the people in Gaza live in refugee camps, which adds another dimension to the groundwater: contamination. Water experts from the United Nations and within Gaza say that complete environmental disaster is pending, and without more mitigating measures, it will quickly become uninhabitable. While much of the problem is certainly the population density in Gaza, another aspect of it is the Israeli government's subsidization of water use among settlers there, which naturally causes overuse and misuse.

Water, water everywhere?  

The justification for settling British Palestine may have come from a very different mindset about water than the one that prevails today. From the time Palestine was under British rule until the creation of the state of Israel in 1948, the reigning discourse was one of water abundance. Water rights closely followed land rights; a person owned the water on their land and only that much. The idea that the arid land concealed vast aquifers was integral to the discourse of Israel's“absorptive capacity."  “Absorptive capacity” meant the land's ability to accept Jewish immigrants, which was projected as high as 15 million – a discourse from which Palestinians themselves were conspicuously absent. Wells could be drilled, said water scientists; the geology of British Palestine indicated great hidden aquifers. This discourse quickly dried up after 1950, when the newly-created state of Israel repealed the Ottoman-era water rights laws and declared all surface water, such as rivers and lakes, public property.

At the same time, the ideas of water abundance and water potential were replaced by those of the current dialogue, water scarcity. Although it is rarely mentioned in the context of Palestinians, it appears that Palestinians shaped the narrative and discourse of water scarcity even as they were absent from it just as they did abundance: Israel used scarcity as one of its justifications for transferring water from the River Jordan out of its basin to irrigate other lands, which went against customary water laws. As Israel's government grew stronger and more centralized, it distanced itself more and more from the once-vaunted discourse of abundance. There is no doubt that today, given the agricultural lifestyle and growing population of Israel and Palestine, water is indeed scarce.

However, there are rich resources beneath the arid land. The West Bank contains the Mountain Aquifer, which is the largest source of replenishable underground freshwater in Israel-Palestine. That this aquifer stretches beneath the West Bank throws the disparity in water usage between Israelis and Palestinians into even sharper relief. In 1995, the Oslo II agreements established a Joint Water Committee and produced an agreement on a fixed amount of aquifer water for both Israeli and Palestinian use.  But as it turns out, the agreements did not quite reflect the reality. While the language of Oslo II appears to entitle Palestinians in the West Bank to a certain amount of water from the Mountain Aquifer via springs and wells, the reality of the situation is somewhat different. Palestinians do get water, but only if they pay for it. Israel's national water company, Mekorot, collects water from the aquifers to sell to Palestinians, but Palestinians are not permitted to collect water without permits. Their requests for permits to drill wells or build cisterns are routinely denied. Meanwhile, Israeli settlers are still seizing lands and springs in the West Bank, which further separates Palestinian families from sources of their drinking water and keeps farmers from irrigating and cultivating their crops.

Israel presently controls the aquifer and its basins in the West Bank, which supplies a quarter of the country's water and nearly all the water for Palestinians there. Palestinians in the West Bank have to apply for permits in order to drill for water, which are rarely issued and often revoked without notice. In fact, in the Western Aquifer, which is one of the Mountain Aquifer's basins, there have been no new well permits issued since 1967. Furthermore, a complicated network of security checkpoints stagger the landscape of the West Bank, often separating Palestinians from their farmland as well as sources of water and making the trip from home to water an all-day affair. Israel also demolishes rainwater-collecting cisterns as a matter of course, which is tremendous blow to farmers in the West Bank as the extra water is crucial to grow their crops and feed their animals. Palestinian people must make money to pay for their water, but they must pay for their water in order to make a living. By controlling the water collection and forcing Palestinians to buy back water harvested from Palestinian property, Israel is doing far more than simply making people thirsty. Chronic water shortages also mean chronic disease – some estimates show that up to 60 percent of Palestinians living in the West Banks suffer from diarrhea, and in Gaza, the high saline content is blamed for chronic kidney problems and hypertension.  Further, limiting water supply controls, and in some cases destroys, entire enterprises and economies in what the United Nations has condemned as “denial of the Palestinians' right to self-determination” and a violation of international human rights laws.
Israel argues that while it is bound by international law, the Palestinian Territories are not yet a sovereign state and therefore cannot be treated as such. For this reason, Israel says, international human rights laws do not apply to Palestinians as they are stateless. Furthermore, say researchers, many of the arguments and assertions used by human-rights organizations and non-governmental organizations are flawed from the start. In a recent paper written by a member of Israel's Water Authority Council, Haim Gvirtzim, the gap in water consumption between Israelis and Palestinians simply does not exist – it is the result of poor census records and ongoing discrepancies in the official population counts, there there has not been an imbalance in water usage since 1967, and Palestinian demands for more water are unjustified. Furthermore, he says, Israel has held up its end of the Oslo II Agreements, but Palestinians' refusal to built sewage treatment plants along with ongoing drilling of unauthorized and unlicensed wells in the West Bank to get even more water signifies clear breaches of that agreement. It is time, Gvirtzim argues, to put aside past hostilities and begin working on water projects together for the sake of the entire region, and part of that, he says, involves letting go of a call for nebulous and undefined “water rights” and beginning to work with the facts as they stand. This, he says, begins with a signed, binding agreement between Israelis and Palestinians, as with Oslo II.

New precedents

  So, where would the legal process to create a new binding agreement between Israel and Palestine begin? The key may lie, improbably, with a completely different group of people about a hundred miles to the south, in the middle of the Negev desert. Negev is a harsh and dusty land, and its story from a legal and political standpoint is a complicated one; while it is not exactly the same as Palestine's, it has distinct parallels. Bedouins, seminomadic desert-dwelling people who fall under the umbrella term of “Israeli Arabs,” claim that the land of the Negev belongs to them. Israel's assertion is that the land is Israel's and does not belong to the Bedouins, because they did not register it under the British Mandate or the Ottoman Empire before the state of Israel's creation (Murthy et al 5-6). Because of this, Israel has been “encouraging” Bedouins through a combination of expropriation, force, and neglect to move to permanent cities and townships since the 1950s, calling the temporary dwellings of their peripatetic lifestyle “illegal settlements” and treating Bedouins as they do Palestinians: razing their homes, cutting off supplies, and attempting to develop the land that Bedouins claim are theirs by rights.

One of the tactics Israel has used for years to push Bedouins out of their settlements and into townships is the policy of not connecting water to villages deemed unauthorized, which eventually propels Bedouins into townships and municipalities created for them by the Israeli government. This parallels the case of Palestinians in the West Bank in that Israel has long used a combination of force, development, and lack of resources – including water – to push Palestinians out of lands that they consider their own. Bedouins, like Palestinians in the West Bank, are cut off from pipelines or cisterns in the desert, prevented from drilling wells deep enough to find water, or are “resettled” in areas away from aquifer springs.

In 2011, Israel's Supreme Court heard a case brought by residents of unrecognized Bedouin villages in Negev. The plaintiffs in Abdallah Abu Massad et al. v. Water Commissioner and Israel Lands Administration contended that access to water was a basic human right (Murthy et al). Because of the ongoing resettlement campaign and Israel's denial of cisterns and refusal to pipe water out to the nomads' settlements, the Bedouins of Negev accused Israel of denying them this right. However, while Israel's Basic Law and Water Law both say that access to clean, fresh water is a basic human right, Israel's reigning water discourse is “needs, not rights,” at least in the settlements it considers illegitimate. Israel also says it does not deny water to anybody willing to pay for it; this is absolutely true, but Bedouins – once again, like Palestinians – are among the poorest people of the region.

In one sense, the case was a failure. Resettlement of the Bedouins continues apace and on the surface, very little has changed. However, the Supreme Court's ruling – that water is a basic human right – provides an important legal precedent that may be applied to future rulings. Justice Ayala Procaccio wrote in the ruling,

....the State is responsible for ensuring the basic access of a person to water sources in Israel, even if he resides on land that is not his, has built a house that is defiant of the laws of planning and construction, has trespassed on another person's property, violated that person’s proprietary rights, and even if he has violated the foundations of the rule of law by all these. One must find the balance between the demand for keeping the law and its appropriate enforcement and the concern for a person's basic and existential need for water, even if he does not abide by the law. The solution to this dilemma must be found in the balance between contradicting values, as required by a law abiding state that acts in the spirit of human rights (Abdallah abu Massad v. The Water Commissioner and The Israel Lands Administration, ¶53)

As Murthy et al note in their analysis, this is a subtle yet important change:

Because the Court invokes the right to water, it finds that despite the “illegality” of the unrecognized villages, the IWA still had an obligation to provide “reasonable accessibility to minimal quality water” (¶54). In doing so, the Court establishes a precedential framework to ensure the Bedouins’ basic right to water is upheld.

This framework, which invokes international laws as well as Israeli water and human rights laws, could be used as a precedent and applied to future situations, including the land that Israel occupies in the West Bank. The situation of Bedouins in Israel diverges from that of Palestinians in one important, basic aspect: Bedouins are considered Israeli citizens, whereas Palestinians are “permanent residents” at best and illegal interlopers at worst, especially in the areas that are supposedly governed by the Palestinian Authority but are being settled by Israelis. However, as those parts of the West Bank is considered occupied territory by Israel's courts, it means Palestinians are either “permanent residents” of Israel or its subjects and thus, by definition, Israel's own human rights ruling as written would apply to Palestinian non-citizens as well as Bedouins.

This ruling has also provided an important place for international law to gain a toehold, at least in the realm of water rights; it is now up to the international community to follow the precedents and encourage Israel to implement measures to ensure that basic right. The Abu Massad case, as recently as March 2012, has been used by the Association for Civil Rights in Israel as a precedent. The Palestinian town of al-Aqaba, which is in a part of the West Bank under Israeli control, suffers the same lack of water infrastructure as the Bedouins of Negev. Lawyers from the ACRI are using the decision and statements in Abu Massad as a legal argument to provide water to villages in the West Bank's occupied Area C, noting that to deny Palestinians of water violates not only international law but Israel's own ruling. That case is currently under review.

A change in the tone

Does this ruling signify a sea change in the way Israel defines public resources? In the past, Israel has stopped short of defining water as a basic human right. Article 1 of Israel's Water Law states, “The water resources of the State are public property; they are subject to the control of the State and are destined for the requirements of its inhabitants and for the development of the country.” That leaves the interpretation of what furthers the development of the country or what, indeed is required by its inhabitants wide open.  In 2010, the United Nations General Assembly voted on an historic resolution recognizing access to clean water and sanitation as a human right. The vote passed with 122 in favor and 41 abstentions; Israel was one of the countries that abstained from voting on the resolution. Israel did not specify why it abstained.

The 2011 Israeli Supreme Court ruling on the Bedouins' water issues is important for the West Bank and beyond, in part because of its neat avoidance of the tangled mess of land rights issues therein. By ruling that water is recognized as a basic human right deserving protection under the 1959 Water Law, it has potentially changed the discourse on water from one of “needs” to one of “rights.” As water scientist Mark Zeitoun points out, water does not necessarily have to be a zero-sum game. By including all people in the region in a dialogue instead of continuing down a policy of animosity, the discourse can be changed from “one wins, one loses” to a dialogue of co-operation for the greater good, which in this case is the purity and relative abundance of the water supplied by the Mountain Aquifer. There are ways that Israelis and Palestinians can work together to benefit one another without draining each others' water resources, and a legal framework is already there, waiting to be used. In light of dropping water tables, increasing salinity, and pollution while fresh water drains from severed pipes and smashed cisterns against a backdrop of accelerating climate change, now is the time to do so.

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