A Breakthrough at Long Last?

 

Introduction

This summer, unrest around the Temple Mount/al-Haram ash-Sharif in Jerusalem has hit the headlines. Despite the religious overtones of these events, the Israeli-Palestinian conflict is fundamentally about territorial issues. The agenda of future peace talks will include geostrategic questions such as the Jewish settlements, Palestinian refugees, the status of Jerusalem, borders and security, as well as resource issues. Water plays a key role in this context. Equitable access to natural resources is linked closely to questions concerning economic development, population growth as well as health and sewerage. The scarcity of the occurrence of natural water resources in the Middle East and the conflict potential this is frequently attributed to give greater significance to these questions.

One look at the geological map shows that water does not recognise borders. The key water sources – the Jordan River and the Mountain Aquifer – extend across parts of both Israel and the Palestinian West Bank. If no mutually acceptable way to divide the water can be found, this could destabilise the region even further. However, the cross-boundary aspect could also be used constructively to noticeably improve the living conditions of the people between the Mediterranean and the Jordan today whatever the final status negotiations will bring. As there are currently no indications of serious regional and international efforts being made to reactivate the peace process, the resource issue should be given particular attention.

The developments over the last few months indicate that some work has been done in this area behind closed doors. After a six-year hiatus, the Israeli–Palestinian Joint Water Committee was reconvened this January. Since the signing of the 1995 Interim Agreement (Oslo II) between the Palestine Liberation Organisation (PLO) and Israel, the committee has been responsible for approving infrastructure projects relating to water and waste water in the West Bank. In 2010, the Palestinians withdrew their cooperation in the Joint Water Committee, as Israel was making the approval of Palestinian applications dependant on the approval of infrastructure projects for the Israeli settlements, which are illegal according to international law. This dependence mechanism put the Palestinian side under increasing pressure, as every approval of an Israeli project could have been construed as retrospective recognition of the settlers’ activities. The newly signed agreement has overcome this point of contention by determining new sets of rules for the Joint Water Committee. One of these states that only Palestinian applications are to be dealt with in the future; and certain projects will be exempted from the obligation of obtaining a permission altogether. In parallel, Jason Greenblatt, who is in charge of international negotiations in U.S. President Donald Trump’s government, has taken action in support of this new rapprochement in the water sector. While visiting Jerusalem in July, he announced a new deal under which Israel will supply an additional 32 million cubic meters of water to the Palestinians in the West Bank and the Gaza Strip.

The article takes this latest Israeli-Palestinian rapprochement as a launching point to investigate whether it was an intervention on the management level or a real break-through in the water sector, and will examine more closely the Israeli-Palestinian Joint Water Committee. To this end, the authors first examine the Interim Agreement of 1995, as well as the regulatory framework of the Joint Water Committee and its implementation up to 2010. Subsequently, the content of the new agreement and the reasons for the revival of the Joint Water Committee are discussed. The article concludes with a discussion about the possible consequences, opportunities, and risks the new agreement entails.

 

Water – a Contested Resource

The Six-Day War of 1967 ended with Israel’s victory over its neighbouring Arab states. Its end signified the beginning of the occupation of the West Bank (including East Jerusalem), the Gaza Strip, the Golan Heights and the Sinai Peninsula. With the conquest of these areas, Israel gained control not only over the land and its inhabitants but also the resources present there. This includes the natural water reserves in the West Bank, which represent an important strategic resource in view of the low amounts of rainfall in the region. To this day, Israel utilises water resources for its own needs that are located entirely or partly outside the 1967 borders and therefore on territory claimed by Palestinians as their own. The Palestinians, on the other hand, still do not have adequate access to the groundwater under the West Bank.

 

One could argue that this is in part due to the 1995 Interim Agreement, the most comprehensive set of contractual arrangements between the PLO and Israel to date. The agreement initiated a five-year transitional period, during which competences and territories were to be gradually transferred to the Palestinian Authority (PA), which had been set up a year previously, in preparation for Palestinian statehood. Soon, however, events such as the assassination of Israeli Prime Minister Yitzhak Rabin in 1995, the election of the conservative politician and Oslo critic Benjamin Netanyahu as his successor the following year, the ongoing expansion of Israeli settlements in the occupied territories and a wave of terror by radical Palestinian organisations resulted in planned measures being delayed and ultimately the envisaged timeframe being abandoned.

Even after the interim period had officially elapsed in 1999, Oslo II continued to be used for reference. The supposedly temporary political system of the PA and the transition rules for bilateral relations between Ramallah and Jerusalem have remained in place ever since. Over time, the Oslo II agreement came to be viewed more critically, particularly by the Palestinians. The first PA president Yasser Arafat was thus said to have a tendency to make ad-hoc changes to his negotiating teams and to not rely sufficiently on specialist expertise. By contrast, Israel went into the negotiations with clear objectives and was intent, for instance, on avoiding any agreements in the interim period that could be considered precedents during the subsequent final status negotiations. The outcome was a reality, created with the approval of the PLO, that in many respects reflected the preceding occupation regime.

This process can be illustrated through the example of the sets of rules for the water sector, which are stated in Article 40 of Annex III of the Interim Agreement. During the negotiations, water issues threatened to undermine the entire set of agreements, placing the Palestinian delegation under considerable pressure. At the same time, Palestinian representatives were largely excluded from the concluding rounds of negotiations and were only represented by one delegate who did not have relevant expertise. While Israel recognised the Palestinians’ water rights in the West Bank, these rights were to be specified only during final status negotiations. It was further stated in the agreement that the existing volumes of water used by Israelis in the West Bank should be maintained throughout the duration of the interim period. As the final status negotiations never took place, the application of these transitional rules continues.

 

The Interim Agreement also determined fixed extraction volumes for the PA. The volume of water entering the groundwater through West Bank territory each year is put at 679 million cubic meters (679 cubic hectometers) in the Interim Agreement. The PA is permitted to extract 118 cubic hectometer per year, which corresponds to the volume the Palestinians extracted during the period before the agreement. It was further stated in the agreement that the PA would require an additional 80 cubic hectometers per year to cover future demand. Most of this water was to be extracted via new wells in the West Bank. The Interim Agreement therefore considered neither climatic nor demographic changes, nor the fact that the contractual status quo would determine reality if the peace process were to fail.

The two sides quote different figures in the analysis of current extraction volumes: Israel argues that the volume extracted by the Palestinians has increased considerably since the Interim Agreement was signed, stating that the digging of dozens of wells has been approved and existing systems have been handed over to the PA. In addition, the PA is said to have drilled numerous unapproved wells in the West Bank, from which some ten cubic hectometer of water were supposedly extracted in 2009. Palestinian authorities, on the other hand, maintain that the actual extraction volume dropped to an all-time low of 87 cubic hectometers in 2011 because of technical and bureaucratic obstacles. According to these figures, the volume of 106,9 cubic hectometers extracted in 2013 still fell considerably short of the allocated share. Even over twenty years after the signing of the Interim Agreement, the issue of Palestinian water rights has therefore lost hardly any of its explosive force. On the contrary: the analysis of the conflict has become even more complex because of the discrepancies in the reported key figures.

 

A Joint Water Committee – but only for the West Bank

The right to equitable and reasonable utilisation of shared water resources is a generally recognised principle of international law. However, the Palestinian territories do not constitute an independent state under international law. The PA can therefore not fall back on the legal remedies that would be required to enforce its claims. That said, international law does provide guidelines for standards and principles that can also be applied to the relations between Israel and the PA.

The region has three shared main water resources, for which both the PA and Israel have a right to equitable and reasonable utilisation and for which cooperation seems a sensible course of action. In the case of the Coastal Aquifer along the Mediterranean coast, the PA and Israel have control of their respective section; there is no formal cooperation. Such cooperation would, however, be essential for controlling excessive utilisation of the aquifer. The Gaza Strip has been governed by Hamas since 2007 and is therefore beyond the PA’s control. Because of limited supplies of water from Israel, the population depends on water abstracted from the aquifer, and because of overuse, the groundwater level is dropping continuously. Because of increasing infiltration of seawater, there is a risk of the water from the aquifer becoming totally unsuitable for human consumption within the next few years. Where the Jordan is concerned, the PA is not included in any of the regional regulation mechanisms. By the time the river reaches the West Bank, Israel and the neighbouring Arab countries have already diverted up to 95 per cent of the original flow, leaving only a contaminated trickle.

The third shared water resource is the Mountain Aquifer between the West Bank and Israel. Oslo II established the Israeli–Palestinian Joint Water Committee as the coordination mechanism for this resource. Its task is to implement the provisions of Article 40 in the West Bank. In the first instance, this means approving planned infrastructure measures in the water sector. Although the committee has an equal number of Palestinian and Israeli representatives, a look at the geographic situation reveals an imbalance in favour of Israel.

Fig. 1: Water Resource Jordan and Aquifers

 

The key characteristic of shared water resources is that they are not limited to one administrative area, but extend over the territories of several parties. But in the case of the Mountain Aquifer, the area covered by the Joint Water Committee is only limited to the section beneath the West Bank. Most Israeli pumping stations above the Mountain Aquifer are located outside the West Bank and are therefore not subject to decisions by the Joint Water Committee. Although the Mountain Aquifer is fed predominantly by rainfall across the West Bank, only 14 per cent of the abstracted volume was utilised by the Palestinians in 2015 while Israel used the rest. Even though the Joint Water Committee has often been described as a coordinating body, this must be judged with caution due to its limited geographic coverage. While Israel has a right to have a say in decisions about projects in the West Bank, the PA has no legal remedy to control the utilisation of the shared aquifer on Israeli state territory.

The political topography of the West Bank creates another geographic peculiarity. The Interim Agreement divided the West Bank into Areas A, B, and C. Areas A and B are subject to full PA control for civil matters; in Area A, the PA also has responsibility for security. The majority of the Palestinian population lives in these (semi-)urban centers, which occupy some 40 per cent of the West Bank. Area C comprises the remaining 60 per cent of the West Bank, which are under complete Israeli control. Here, 300,000 Palestinians live side by side with close to 600,000 Jewish settlers, who are spread across some 250 settlements and outposts. Due to environmental and expediency factors, important components of a Palestinian water infrastructure need to be located within the thinly populated Area C, as there is insufficient space for them in the PA-controlled Areas A and B. In practice, this means that the PA has had to go to the Joint Water Committee for approval of any new projects or maintenance measures in Areas A, B and C. If it wishes to operate in Area C, it also needs to obtain permits from the building and planning committee of the Israeli Civil Administration, the Israeli Army body that administers the occupied territories.

 

Implementation of the Joint Water Committee until 2010

The geography-related imbalance in favour of Israel was strengthened further in the period up to 2010 through the establishment of Israeli interpretations of vague guidelines. The dimensions determining whether infrastructure projects required approval were, in fact, not clearly specified to start with. It was not u

ntil the Joint Water Committee had begun operating, for instance, that a rule became established according to which pipelines exceeding five centimeters (two inches) in diameter or 200 m in length would require approval. This interpretation corresponds to the modus operandi applied before the Interim Agreement was signed; at that time, projects exceeding these dimensions needed to be approved by the Israeli Civil Authority.

 

It was also initially assumed that Article 40 only covered the Palestinian water sector in the West Bank. However, Israel soon began submitting applications of its own, which related to connecting up settlements to the Israeli water network. It became established practice to make the approval of Palestinian projects dependent on the approval of Israeli applications. By 2010, over 100 infrastructure projects had been approved that predominantly served to supply Israeli settlements. In practice, Israel frequently ignored the approval process and unilaterally realised projects in Area C, which it controlled, without waiting for a decision by the Joint Water Committee. The PA does not have a similar option as Israel consistently prevents unauthorised Palestinian construction activities.

In the everyday work of the Joint Water Committee, it soon became clear that Israeli projects were treated more favourably. Of the 135 Israeli applications submitted up to 2008 just one was rejected. Israeli applications took around 70 days on average to be processed. There are no comprehensive statistics available for the 602 Palestinian applications submitted in the same period, but the available figures indicate a substantially lower approval rate. Only 33 to 66 per cent of 188 applications for renovating or extending existing wells and drilling new ones were approved. There were also delays, sometimes lasting years, particularly with the approvals for the 32 applications for new wells. Eight wells applied for in 1996 were not approved by the Joint Water Committee until 25 months later. A further eight wells approved in 2001 did not receive planning consent from the Israeli Civil Authority until 2009, and only partial consent at that.

Under the mantle of cooperation and with the apparently willing consent of the PA, Israel obtained approval for developing the infrastructure of Jewish settlements. At the same time, the country blocked the development of the Palestinian water sector and cemented the inequitable access to water resources. The PA condoned this practice for well over the official five-year interim period. This was most likely due to the pressure on the PA to make projects happen because of the poor state of the Palestinian water infrastructure. By 2015, seven per cent of Palestinian households still had no access to a water network. 80 out of 524 Palestinian communities also have no connection whatsoever to a proper sewage system. The way the PA approached its involvement in the Joint Water Committee did not change until Shaddad Attili was made Head of the Palestinian Water Authority in 2010. After the Palestinian side first refused to sign the committee’s minutes, it finally withdrew its cooperation.

 

After a Six-Year Hiatus: New Rules for the Joint Water Committee

The approach pursued by the PA changed again in 2014, once Mazen Ghoneim had been nominated Head of the Palestinian Water Authority. During the four-year boycott, the Joint Water Committee and its sub-committees had met sporadically, above all in cases of emergency, to discuss important matters relating to water projects that had already been approved. Under the new head, negotiations about a formal revival of the Joint Water Committee were initiated.

These negotiations extended over several years and took place away from the public eye and without the presence of international representatives. At a press conference held on 15 January 2017, the Palestinian Minister of Civil Affairs and the Israeli Head of the Coordination of Government Activities in the Territories announced the signing of a new agreement as well as the resulting reactivation of the Joint Water Committee. Reporters were tentative in commenting on the agreement and its content, mainly because the text was initially not made public. However, it has since been made available to relevant international representatives and organisations.

 

The agreement comprises just one page of text and redefines succinctly the types of projects that will require approval by the Joint Water Committee in the future. Three key messages seem to be of particular relevance.

 

 

 

 

1. In contrast to the original wording of Article 40, the new agreement explicitly refers to the Palestinian Water Authority as the only body that can submit applications. Everything points to the idea that the Joint Water Committee will no longer deal with Israeli projects.
2. All projects that will affect the groundwater level will continue to require approval from the Joint Water Committee. This includes all work relating to wells, as well as measures that will increase the abstraction of water beyond the volumes specified in the Interim Agreement. Israel therefore reserves the right to continue regulating Palestinian utilisation of natural water resources.
3. Apart from a few other restrictions, many projects appear to be exempted from the obligation to obtain approval from the Joint Water Committee before realisation. It appears that the expansion of the distribution network in particular will now be free from this political obstacle. However, the wording of the agreement is rather vague and offers wide scope for interpretation.

Factors Conducive to the New Water Agreement

At the same time as the new water agreement was signed on 15 January, representatives from 70 countries and international organisations met in Paris for discussions about a new attempt to restart the peace efforts, to which the Palestinians and Israelis were not invited. Israel had already made its disapproval of the conference clear several weeks earlier. The fact that the two events coincided was therefore probably not just a matter of chance. Instead, the temporal correlation indicates that the Israeli side at least in part intended to contrast the conference with an example of successful regional cooperation. But this was definitely not the only factor contributing to the signing of the new agreement.

Where technology is concerned, seawater desalination has transformed Israel from a country with serious concerns about future water shortages to a potential water exporter. The country, 60 per cent of which is covered by desert, already exports water-related technologies and expertise worth 2.2 billion U.S. dollars. Since Israel commissioned the first desalination plant in 2005, capacities have been expanded continuously. With the upcoming commissioning of the fifth plant, the country is set to desalinate 582 cubic hectometers of water a year, corresponding to some two thirds of domestic consumption. Thanks to this development, the strategic significance of the water resources in the West Bank is diminishing for Israel, at least theoretically. On top of this, the desalination plants also enable the country to increase the amounts of water it shares with its neighbours.

By contrast with these positive developments, the critical situation of inadequate sewage systems and poor general water supply in the West Bank and the Gaza Strip persists. According to figures from the Palestinian Central Bureau of Statistics, the number of households connected to a sewage system in the north of the West Bank was around 34 per cent, in the central region around 48 per cent and in the south around 36 per cent in 2015. During the same year, some 66 cubic hectometers of waste water was produced in the West Bank, only 15 cubic hectometers of which went into the existing sewage systems. Only around ten cubic hectometers was partially treated; the remainder seeped into the ground or ran off untreated. Together with the partly untreated waste water from Israeli settlements, this scenario represents a clear challenge to the part of Israel located downstream. Interested parties regularly call attention to the potential consequences of environmental pollution. As recent as May 2017, State Comptroller Joseph Shapira issued a dramatic statement warning that if the authorities continued to fail to take action against the pollution, this could lead to consequences for human health and the environment as well as the country’s “political-security situation”.

As long as the Joint Water Committee takes no decisions, the danger is that this dire situation will deteriorate further. Thus, there is a risk of the number of projects in the Palestinian water sector funded by international organisations and foreign states decreasing as time goes on. While donor organisations have still conducted some projects in 2017, these had already been approved by the Joint Water Committee before 2010. Without new approvals, these organisations are likely to shift their attention to other regions or sectors in coming years. Unsurprisingly, international organisations have regularly called upon both sides to resume work in the Joint Water Committee.

The water issue also has serious security implications that deserve consideration. For years, there have been growing concerns about the gloomy economic prospects for the West Bank – growth is expected to be around 3.5 per cent this year, unemployment stands at 27 per cent, the PA’s budget deficit is set to grow to 1.35 billion U.S. dollars – and a deterioration of the security situation. To counter these developments, the Israeli Coordination of Government Activities in the Territories is making efforts to raise the living standards of the Palestinian communities. Following the announcement of a 3G mobile radio network, plans for faster international mail deliveries and a deal to settle Palestinian debts to Israeli electricity companies, the water agreement is already the fourth agreement made within two years. However, the implementation of the agreement – and therefore a noticeable improvement in the daily lives of the population – is slow to materialise.

In view of these factors, the new compromise appears to be attractive to Israel for a number of reasons. The revival of the Joint Water Committee will allow new infrastructure projects to be initiated in the Palestinian water sector. That has the potential to both reduce risks to human health and the environment for Israeli citizens and help to lower the conflict potential in the West Bank. Israel will incur little direct costs in this connection as the funding will come mainly from the PA. One important task will be to ensure that the international community of states will continue its development cooperation consistently at the same high level, as the Palestinian Authority will remain reliant on donor funding as long as the prospects for economic development and improvements in foreign trade remain poor. At the same time, Israel will retain legal control over the volumes abstracted from the aquifers by the PA under the new rules.

 

Possible Consequences of the New Agreement

After an interval of over six years, the Israeli-Palestinian Joint Water Committee convened once again for the first time on 16 May. The meeting was chaired by the heads of the Palestinian and Israeli water authorities. Only very scarce information about the meeting itself made it into the public domain. It was merely reported that the committee had discussed several topics of mutual interest. No decisions were taken about any water-related projects, nor did the committee agree on a fixed schedule of meetings.

 

On the side of the Palestinian Water Authority, the hope is that the new agreement will result in the go-ahead for the rapid realisation of numerous projects. It is said that a total of 97 projects are in the pipeline since 2010, waiting for approval by the Joint Water Committee. According to information from the Palestinian Water Authority, potential international donors are ready to provide funding and implementation assistance for most of the projects. That said, there must be some doubt purely from a technical perspective as to whether many of these projects can actually be realised without lengthy delays. Major projects generally require long planning phases; after years of delay, many projects will also very probably need new feasibility studies to be carried out due to changed economic and demographic circumstances.

 

Besides technical requirements, the vague wording of the new agreement could also continue to hamper infrastructure projects. One outstanding question centers around which projects will in fact be exempt from the need to make an application. Amongst other things, the agreement points out that “cross-boundary” waste water projects will continue to require approval. This wording is so vague that the international organisations interviewed for this article did not feel able to make a prognosis about how to interpret that passage. There also remains the question as to the rules applying to Area C of the West Bank, which is under Israeli control. The new agreement also appears to exempt many projects planned in this area from the need for approval by the Joint Water Committee. There is hope on the Palestinian side that it will now be possible to realise projects within the Palestinian communities in Area C in particular. However, one must assume that all infrastructure projects in this area too will continue to require permits from the Israeli Civil Authority and from its building and planning committees. Consequently, Israel will probably continue to be able to obstruct undesirable projects in Area C through bureaucratic measures.

To test the limits of the new agreement, Palestinian authorities may try to realise individual projects without prior approval by the Joint Water Committee over the coming months. But in case of doubt, they will not have much chance of enforcing their interpretation of the agreement. Israeli authorities, on the other hand, have proved on various occasions in the past that they do not shrink back from preventing projects they deem illegal, if necessary by deploying Israeli security forces. Th

is also poses potential political challenges to international donor organisations. Donors are generally only willing to help realise capital-intensive infrastructure projects if permits by the Israeli authorities are on hand. Whether they will be prepared to realise projects even without explicit Israeli approval is questionable as long as there is the possibility of a retrospective Israeli veto. A recent decision by the European Union indicates that things are changing in the EU’s approach to dealing with investments in Area C: in future, EU-funded measures will be implemented in Area C if they have not been vetoed by the Israeli Civil Authority within 18 months from submission of a master plan. So far, this approach has been pursued by the EU and a few of its member states. It remains unclear, however, whether this can also be an option for larger infrastructure projects. The German government continues to implement projects in Area C only once Israeli approval has been obtained.

Aside from the discussion about the practical implementation of the new agreement, one should not forget that the power ratio within the Joint Water Committee has not changed fundamentally. The new agreement will probably enable the PA to avoid one bureaucratic hurdle during the realisation of certain projects. However, it will still not be possible to pump additional water through new pipes without Israeli approval.

 

Political Implications for Water Cooperation in the Region

Around the world, sought-after resources have the potential to trigger conflicts and to cause existing tensions to escalate. They can, however, also do the opposite: The scarcity of natural resources and the fact that natural, climate-related and manmade environmental disasters do not stop at political borders can also promote integration and help to resolve conflicts.

It is therefore a welcome sensible development that some progress appears to have been made with respect to the Israeli-Palestinian water conflict. Assuming that the latest decisions will be implemented promptly, the inhabitants of the West Bank can hope for an improved water supply. In the Gaza Strip, the humanitarian situation has seriously deteriorated at the same time after three bouts of armed conflicts between Hamas and Israel over the last nine years. The UN warns that the coastal strip that is home to two million people will become unliveable by 2020 and that the environmental damage done by then will be irreversible. The water situation is particularly worrying here, as 95 per cent of the only source of fresh water – the Coastal Aquifer – are contaminated and therefore no longer suitable for use as drinking water. This not only increases the risk of epidemics and diseases but also the strategic dependence on water imports. Israel is also affected by 90 million liters of virtually untreated waste water from Gaza flowing into the Mediterranean because the sewage treatment plants, which are small in number as it is, can no longer operate due to acute and recurring power crises: Beaches regularly need to be closed and the operation of the desalination plant in the city of Ashkelon north of Gaza had to be temporarily shut down on several occasions in the past. Given this situation, courses of action involving cooperation between Israelis and Palestinians can be viewed as contributions to mitigate the potential humanitarian catastrophe in Gaza. An agreement brought about in July with the USA acting as mediator could provide a cautious message of hope for the inhabitants of the Gaza Strip: Israel declared itself prepared to sell ten of the additional 32 cubic hectometers of water promised to the Palestinians to the Gaza Strip for some 75 cents per cubic meter.

The rapprochement in this specific sector illustrates that the Israelis and the Palestinians are prepared to take some pragmatic steps. However, the veneer is stripped off this decision by the fact that the most recent agreement merely increases allocation limits unilaterally instead of granting the PA the right to utilise its own water resources. There have been no fundamental changes to the rules in the water sector. On the contrary, the status quo of the Israeli-Palestinian conflict has been cemented: ‘nothing is agreed until everything is agreed’. The most recent agreement was made at the management level, while confirming the imbalance of power unquestioningly. The outlook for a return to peace negotiations – or even just the willingness on both sides to resume them – remains as poor as ever.

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Marc Frings is Head of the Konrad-Adenauer-Stiftung’s office in the Palestinian Territories.

Johannes Lutz is Program Manager at the Konrad-Adenauer-Stiftung’s office in the Palestinian Territories.

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