Legal agreements

There is no single legal instrument to enable basin-wide transboundary water management in Jordan, Israel, and Palestine, only bilateral treaties, such as the peace treaty between Israel and Jordan,19 as well as the Oslo Accords20 between Palestine and Israel, provide the only legal basis for water diplomacy.21

Treaty of peace

A unique part of the 1994 peace treaty between Jordan and Israel was the inclusion of agreed arrangements for the utilization of shared water. Water Annex II22 has most shaped the situation of the lower section of the JR. Article III emphasizes the protection of water resources. It states that both Jordan and Israel “protect, within their own jurisdiction, the shared waters of the Jordan and Yarmouk Rivers and shared groundwater against pollution, contamination, harm or unauthorized withdrawal of each other’s allocations.”23 Although the treaty succeeded in preventing military conflict over water, it failed to preserve the lower section of the JR and the Dead Sea ecosystems.24 In fact, the quality and quantity of water in the lower section of the JR deteriorated at a higher rate after the treaty was signed due to increased river access by both countries.25 Further, the arrangements and provisions are insufficient to manage severe changes in climate conditions, including recent droughts.26

The absence of Palestine from the Water Annex II is a glaring shortcoming in the treaty, with no specifications of Palestine’s access to JR water. Violations of international water law, unfair and harmful policies, and the lack of political will to uphold the principles of equitable practice on the JR have denied Palestinians access to the river and their water rights.27 There is also an observed bias in the 1994 peace treaty to satisfy Israel’s demands at the expense of other riparian countries, which adversely affects the water quantity and quality available to neighboring states.28 Further developments and migrations into the JR basin, which have prompted significant governance reform and infrastructure development to meet basic water needs in Jordan,29 would also warrant the reconsideration of the water annex terms.30 Further, the institutional arrangements within the agreement, discussed later, have not fulfilled the Article III mandate to protect shared waters.

The Oslo Accords

The 1995 Oslo II Accords is the central legal arrangement between the government of Israel and the Palestinian Authority that sets out

Case study in Jordan, Israel, and Palestine 185 principles for managing shared water. Article 40 of Annex II defines allocations of groundwater resources and principles to “prevent any harm, pollution, or deterioration of water quality of the water resources,” and sets out institutional arrangements for shared management of regional groundwater resources between the two parties.31 Allocations of surface water were not included in the agreement, excluding Palestinian rights to the JR. While Oslo guarantees future resource development by Palestine, the institutional arrangements— discussed in the section ahead—both minimize the optimized basin use and further entrench Israeli control of resources. Further, since the signing of the agreement, quantity projections for Palestinian future needs are now outdated due to population changes.

Grassroots and community-led action

Coalitions or partnerships between Palestinian and Israeli activists, communities, and organizations have employed actions that attempt to change or challenge existing legal arrangements both formally— through legal petitions—and informally—through acts of civil disobedience. A noteworthy example of the former is the case of Battir, a historical Palestinian village in the West Bank settled along productive springs of the Mountain Aquifer and known for its centuries-old terraces and irrigation methods. In response to Israel’s plans to build a separation wall through the town’s terraces, which would disrupt and disconnect water sources and agricultural lands, the community of Battir, with the support of a regional nongovernmental organization (NGO), EcoPeace Middle East, petitioned this decision in the Israeli High Court. The case led to a temporary injunction to stop the barrier from proceeding, and also successfully secured Battir as a UNESCO World Heritage Site.32 With the lack of regional, legal instruments to ensure water access and protect environmental lands and groundwater flows, this form of joint, legal action secures a small victory for the alternative form of water diplomacy.

The second form of grassroots, legal-based action happens informally through various measures of civil disobedience. Activists engage in various forms of civil disobedience to find alternatives where water rights cannot be achieved due to existing de facto and de jure legal arrangements. For example, in May 2019, a coalition of Palestinian and Israeli activists rehabilitated an access road for emergency water trucks to a group of small villages in the southern West Bank; the Israeli military declared the area a closed military zone on the day of the roadwork. By actively refusing military orders, 17 activists were arrested, which drew public attention to the implications ofdiscriminatory legal arrangements on water access and water rights for Palestinians.33 Alternatively, in Nabi Saleh, Palestinian community leaders and activists organize weekly marches to the village’s historical groundwater spring, which has been taken over by a neighboring Israeli settlement. International and Israeli activists support Nabi Saleh in confronting the legal arrangements that limit water access by participating in these protests.34 These informal modes of civil resistance bring public attention to the key issues, though they have not provoked major shifts in legal arrangements for water management. These forms of action are received with broad and divergent levels of support from the general public.35 Nonetheless, trends indicate that the occurrence and scale of these forms of action are growing,36 which illustrates the lengths to which local communities are willing to go in order to meet basic needs and advance their rights where formal platforms are failing.

Legal water diplomacy—is it sufficient?

Although relevant legislation and agreements exist, implementation of the environmental clauses of the Jordanian-Israeli peace treaty and the water and environmental clauses of the Palestinian-Israeli Oslo II Accords are lacking due to inefficiencies, inequities, and limited political buy-in to the institutional arrangements developed to implement the agreements. In addition, the exclusion of Palestine as a riparian in any legal arrangement with Jordan, and the subsequent dismissal of its rights to water, remains a significant issue. Efforts to protect shared resources are stunted by territorial disputes and security concerns. Meanwhile, a growing community of activists and communities is finding alternative pathways to jointly confront the failures on the legal level, despite resistance from their own communities and governments.

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