Compensation as Part of Equitable Utilization in the Israeli-Palestinian Water Context

By El-Hindi, Jamal Laurence | Arab Studies Quarterly (ASQ), Spring 2000 | Go to article overview

Compensation as Part of Equitable Utilization in the Israeli-Palestinian Water Context


El-Hindi, Jamal Laurence, Arab Studies Quarterly (ASQ)


ALTHOUGH PARTIES WITH GRIEVANCES against one another are more likely to settle such grievances by emphasizing forward steps toward common interests rather than dwelling on past animosities, the failure to account adequately for past grievances will undermine the acceptability of any resolution between the parties. Resolution of disputes between Israel and the Palestinians, as well as Israel and other Arab countries, should be no exception. Now that the disputants have displayed enough forward vision to arrive at the negotiating table, they must have the courage and the patience to parse out past facts and address, wherever possible, delicate issues involving accountability for past wrongs or inequities.

The situation regarding the use of transboundary water resources in Israeli and Palestinian territory provides a workable paradigm for addressing how compensation for past inequities can be incorporated into a plan for the future. Although issues concerning water are of a critical nature, as evidenced by their inclusion among the other issues that are to be resolved in final status negotiations, an analysis of rights to compensation in the water arena involves fewer emotional issues than discussing compensation for the loss of real or personal property or resolving the dilemma of refugee resettlement. Water under the bridge, so to speak, is simply that. Moreover, a suitable legal framework for analyzing the application of compensation issues in the case of water exists in the confluence of (i) developing norms of international water law, and (ii) other established norms concerning concepts such as belligerent occupation, restitution and state responsibility.

This essay is not meant to be an exhaustive review of the legal status of Israeli and Palestinian water resources. [1] Instead, it attempts to demonstrate succinctly the legal framework under which compensation issues should be incorporated into a resolution of current water disputes, thereby providing Israeli and Palestinian negotiators with a threshold point for seriously and practically addressing compensation concerns more generally. The introduction provides by way of background a brief overview of the international legal theories regarding transboundary water sources, focussing on the doctrines of equitable utilization and avoidance of significant harm as currently espoused by the international community. It then addresses the acceptance and application of these doctrines in the Israeli-Palestinian context, demonstrating how the particular historical context of the Israeli-Palestinian dilemma, arising from Israel's conquest, complicates the analysis. Finally, it raises the notion of rights to compensat ion as a factor to be included in an allocation of water rights under the doctrine of equitable utilization. The second part provides a legal framework for establishing rights to compensation through (i) an analysis of Israeli wrongs under the norms regarding belligerent occupation, and (ii) the establishment of Palestinian rights to compensation in a less normative context. The third section discusses the practicality of folding rights to compensation into an application of the equitable utilization doctrine in the Israeli-Palestinian context, discussing the various forms of compensation that may be feasible. The final section provides a brief discussion of the ramifications this analysis might have on final status negotiations.

INTRODUCTION

While criticism of any international legal regime as merely tangential to decisions and practices determined by global power politics (particularly in the Middle East) may be warranted, it is difficult to deny that most states, weak or strong, at most times, consider international norms and obligations in conducting their inter-statal relations. [2] In the transboundary water context, international law continues to develop. [3] Gradually, states and international law theorists have moved away from strict applications of territoriality in water conflicts to the notion of limited sovereignty and respect for shared usage. …

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