Stephanie Hawkins PhD researcher, Strathclyde Centre for Environmental Law and Governance
Introduction and Background
As an international governance framework for transboundary water management, international water law is often analysed in the context of water conflict and cooperation between states (Dinar, Dinar, McCaffrey, & McKinney, 2007; Vinogradov, Wouters, & Jones, 2003; Wolf, 1998). However, existing studies primarily focus on the substantive rules of 'equitable and reasonable use', and 'no significant harm', with an emphasis on water sharing and allocations (e.g. Lautze and Giordano, 2006; McIntyre, 2013; Mimi and Sawalhi, 2003; Richmond, 2013; Wolf, 1999). Thus, water is usually treated as the root of conflict, that is, for the acquisition or securitization of water. This focus ignores the dimension of using water as a 'tool' in conflict for achieving further political aims (Gleick, 2011; also see Elver, 2005; Meehan, 2013; Zeitoun et al., 2014), and there is scarce analysis of the use of international water law as a tool in response to this dimension.
This paper analyses the Israeli Civil Administration's recent declaration of almost 4,000 dunums (1,000 acres) of Palestinian land in the Bethlehem district as 'State Land', using legal justifications based on manipulated Ottoman Law. The Israeli leadership intends to build a new settlement-city on this land, connecting the existing settlements and blurring the 1967 Armistice 'Green Line'. This planned activity will directly affect five Palestinian villages that will be surrounded by the new settlements, blocking their future expansion. Existing settlements close to the villages already significantly affect the recharge rate of the underlying aquifers that are relied upon for Palestinian agriculture. As a result, the villages suffer from a dramatic decrease in spring water available to work the land. The new settlement construction on the confiscated land will further exacerbate the already scarce water supply, threatening the existence of the village itself.
This research 'reverse engineers' an analysis of land confiscation by looking at the water resources. Firstly, this analysis helps to further understand the various elements involved in the systematic process of the Israeli occupation of Palestine, and the implications this has on the viability of a Palestinian state. Secondly, the breaches of international law in relation to water resources are highlighted, with particular focus on the procedural rules of international water law. This analysis reveals an opportunity to investigate how procedural rules can be used as a tool in preventing the 'creeping annexation' of Palestinian land and resources. This can reveal to what extent a procedural focus can help achieve substantive obligations of international water law. Most importantly, investigating where international law fits into this case reveals a new understanding of the way international law can be used in response to this systematic process.
The research is conducted through a legal analysis of the facts surrounding the recent land confiscation in the Bethlehem district. The analysis draws upon international law relating to water resources, with a primary focus on international water law in regard to the procedural processes undertaken by states. A limit to this approach lies in the ambiguity of Palestinian statehood and the lack of legal agreements to draw upon regarding state obligations. However, this research focuses on the legal implications for the future, vis-Ã -vis the viability of a Palestinian state, and will ground the legal authority in accepted customary international law with a view to exploring the opportunities and limitations of those principles.
Fact finding for this research is based upon field-trips, discussions with key informants as well as existing affidavits and documentation.
Results and Discussion
Firstly, this confiscation of land represents a process whereby among other techniques, control over water resources facilitates a process of 'creeping colonization'. Through the use of Ottoman law code whereby one must cultivate the land for at least ten years in order to formally register the land as private property, land that has not been cultivated for three successive years is declared as 'State Land' (B'tselem, 2012). As water is fundamental to the farmers' ability to cultivate their land, this paper demonstrates how Israeli control over the Palestinian villages' water resources has contributed to the recent land confiscation. Moreover, the recent land confiscation will lead to further control of water resources, with implications for the entire area of Palestinian land in the Bethlehem Governorate West of the Separation Barrier.
Secondly, this research finds that an emphasis on procedural rules of international water law is important in resisting further land confiscation. It is recognised that fair processes do not necessarily lead to fair outcomes, particularly when there is an underlying assumption of equality. However, while the substantive principles of international water law are highly interpretable, procedural requirements are static and unambiguous. Thus engaging States in some kind of procedural process creates stronger obligations, revealing unambiguous breaches of international law. Israel has thus far failed to adhere to procedural requirements in regard to the planned settlements and their effect on the Palestinian villages' water resources. However, any procedural engagement will add facts to the situation, as well as highlighting any non-cooperation. Such documentation of this process is important in framing the facts to the international community, to explain the broader process of colonisation through a common language of international law and the sensitivity of natural resources.
This paper argues that attempting to engage Israel in procedural processes creates stronger obligations according to international law. Documenting the procedural breaches of international water law is consequently an important tool in delegitimising the justifications for Israel's land confiscation policy, which is rooted in a manipulation of Ottoman law. However, it is important to recognise that holding Israel accountable to international water law will not change the current structures of the occupation and the resulting breaches. Instead, documenting breaches is important for increasing pressure on both Israel and the international community, to stop the settlement policies and increased destruction that threatens the existence of the affected Palestinian communities, and consequently the viability of a future Palestinian state. 1. BÂtselem. (2012). Under the Guise of Legality: IsraelÂs Declarations of State Land in the West Bank. Jerusalem.
2. Dinar, A., Dinar, S., McCaffrey, S., & McKinney, D. (2007). Bridges Over Water: Understanding Transboundary Water Conflict, Negotiation and Cooperation (p. 468). World Scientific Publishing Company.
3. Elver, H. (2005). Facts, Rights, and Remedies: Implementing International Law in the Israel/Palestine Conflict Sponsored by the Toda Institute for Global Peace and Policy Research: Palestinian/Israeli Water Conflict and Implementation of International Water Law Principles. Hastings International and Comparative Law Review, 28, 421Â448.
4. Gleick, P. (2011). Water Conflict Chronology. Oakland, CA: Pacific Institute.
5. Lautze, J., & Giordano, M. (2006). Equity in Transboundary Water Law: Valuable Paradigm or Merely Semantics? Colorado Journal of International Environmental Law and Policy, 17(1), 89Â122.
6. McIntyre, O. (2013). Utilization of shared international freshwater resources Â the meaning and role of "equity" in international water law. Water International, 38(2), 112Â129.
7. Meehan, K. M. (2013). Tool-power: Water infrastructure as wellsprings of state power. Geoforum. doi:10.1016/j.geoforum.2013.08.005
8. Mimi, Z. a., & Sawalhi, B. I. (2003). A Decision Tool for Allocating the Waters of the Jordan River Basin between all Riparian Parties. Water Resources Management, 17(6), 447Â461.
9. Richmond, L. (2013). Incorporating indigenous rights and environmental justice into fishery management: comparing policy challenges and potentials from Alaska and HawaiÂi. Environmental Management, 52(5), 1071Â1084.
10. Vinogradov, S., Wouters, P., & Jones, P. (2003). Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law.
11. Wolf, A. (1998). Conflict and cooperation along international waterways. Water Policy, 1(2), 251Â265. Retrieved from http://www.transboundarywaters.orst.edu/publications/conflict_coop/
12. Wolf, A. (1999). Criteria for equitable allocations: the heart of international water conflict. Natural Resources Forum, 23(1), 3Â30.
13. Zeitoun, M., Eid-Sabbagh, K., & Loveless, J. (2014). The analytical framework of water and armed conflict: a focus on the 2006 Summer War between Israel and Lebanon. Disasters, 38(1), 22Â44.