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COMPENSATION AS PART OF EQUITABLE UTILIZATION IN THE ISRAELI-PALESTINIAN WATER CONTEXT.

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. Prior to the development of a more detailed understanding of the relationship of surface waters and ground waters, most international theory focussed on the use of waterways that either served as boundaries or crossed them. States holding an upper riparian position on such watercourses might argue the notion of "absolute territorial sovereignty," claiming the sovereign right to take any action upon a watercourse located within their boundaries regardless of the effect upon a downstream neighbor. [4] States in a lower riparian position might argue the notion of "absolute territorial integrity," claiming an inviolable right to continuous flows from upstream without the interference of any upper riparian. The absolute nature of these doctrines makes them both equally unworkable. As demonstrated by Jerome Lipper in his comprehensive study of the acceptance by states of limited territorial sovereignty and the development of the notion of equitable utilization, absolute theories can no longer be considered part of international law, if they ever were. [5] States now generally accept that they must take into consideration the rights of co-basin states to any shared watercourse or drainage basin. [6] Thus, the notion that states recognize each others' rights to a reasonable use of shared waters has resulted in the acceptance of the notion of limited territorial sovereignty. [7] A cornerstone of the doctri ne of limited territorial sovereignty is the notion that each state sharing in a water system must be allowed equitable use of the resources. Equitable, of course, does not necessarily mean equal, and how states determine equitable use among themselves may vary, with a variety of factors taken into consideration. Consequently, the doctrine of equitable utilization has evolved into the notion that states must balance a variety of factors relating to use of a shared basin or watershed. [8]

Although the notion of limited territorial sovereignty is now generally accepted as a part of international water law, in certain situations the even broader notion of communal interest appears to have taken hold. Under the communal interest doctrine, the notion of sovereignty may more fully succumb to the notion of optimal use of a basin. Joint development schemes, where the locations of water-related projects within the basins are determined more by optimal functionality rather than borders, arguably represent an expression of communal interest, particularly when the sovereigns agree to use the territory of one state to provide a benefit to the other. [9]

EQUITABLE UTILIZATION AND SIGNIFICANT HARM

Attempts to distill the notion of limited territorial sovereignty (and to a more limited extent the doctrine of communal interests) into a rough codification of international water law exist in the Helsinki Rules adopted by the International Law Association in 1966 [10] and the Convention on the Non-Navigational Uses of International Watercourses adopted by the UN General Assembly in 1997. [11] By design, neither set of rules purports to override existing international water agreements. While the Helsinki Rules provide a set of recommendations for binding states to the principle of limited sovereignty, the Convention, as a result of recalcitrance among UN General Assembly member states, was adopted as a guiding framework for state conduct rather than a series of binding rules. The UN Convention and the Helsinki Rules are not the only attempts at codifying the international law of non-navigational transboundary waters based on the concept of equitable utilization. For example, in 1987, a group of internationa l water law scholars produced the Bellagio Draft Treaty as another model for states to follow in concluding transboundary water agreements. [12] All of these codification efforts, in attempting to solidify the present understanding of limited territorial sovereignty, have among their core provisions the principle of equitable utilization. [13]

In simple terms, the principle of equitable utilization requires states to take into consideration all relevant factors and circumstances when working toward an obligation to utilize transboundary waters in an equitable and reasonable manner. The UN Convention, the Helsinki Rules and the Bellagio Draft Treaty all list different and overlapping relevant factors, but in each case, these lists are illustrative only, thereby anticipating the consideration of other factors. For discussion purposes here, the illustrative factors in an equitable utilization analysis listed by the Helsinki Rules and UN Convention are set forth in the table below.

Both the Helsinki Rules and the UN Convention provide that none of the factors are to be given inherent priority over the others but that the "weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors." [14]

Somewhat distinct from the doctrine of equitable utilization under both the Helsinki Rules and the UN Convention is the principle of avoidance of significant harm. Under the significant harm principle pursuant to the UN Convention, states must "take all appropriate measures to prevent the causing of significant harm to other watercourse states." [15] Under the Helsinki Rules, the significant harm principle is incorporated under a complementary rule adopted by the ILA in Seoul in 1986 requiring a basin state to "refrain from and prevent acts or omissions within its territory that will cause substantial injury to any cobasin state." [16] The treatment of the significant harm principle as a separate element in comparison with the factors listed within the equitable utilization doctrine, and the fact that measurements of harm might be more concretely evaluated than an ambiguous weighing of other factors, has led some scholars to conclude that harm should be given greater consideration than any factor included in an equitable utilization analysis. [17] However, such an analysis serves to undermine the flexibility of the doctrine of equitable utilization that has led to its general acceptance as the "least common denominator" in developing norms of international water law. [18] Furthermore, although both the Helsinki Rules and the UN Convention arguably separate the principle of significant harm from the list of factors relevant in an equitable analysis, both suggest that the issue of harm must be reviewed without departing from the principles of equitable utilization. [19]

Although the strength of the equitable utilization doctrine (with the incorporation of the significant harm principle) lies in its flexibility and the capability of the doctrine to be molded to a variety of circumstances, its weakness lies in its difficulty in application where basin states regard water issues in zero sum terms. Because the doctrine gives no priority to any of the balancing factors, it enables states to stress as most important those factors that favor its position vis-a-vis co-basin states. [20] This result is evident in the current posturing of the Israelis and the Palestinians who, based on the boundaries established in 1949, share a number of different water sources in a water-scarce land. These shared sources include primarily (i) the Jordan River system, (ii) the mountain aquifer primarily underlying the West Bank and including the subcomponents of the western, northern, and possibly eastern aquifers, and (iii) the coastal aquifer, which the Palestinians and Israel presently debate may or may not be a shared water source depending on how the aquifer is associated with what is known as the Gaza aquifer. [21]

EQUITABLE UTILIZATION IN THE ISRAELI-PALESTINIAN CONTEXT

The principle of equitable utilization of joint water resources was acknowledged by the Israelis and the Palestinians in the Declaration of Principles on Interim Self-Government Arrangements (hereinafter "DOP.") [22] DOP Annex III, a Protocol on Israeli-Palestinian cooperation in Economic and Development Programs, provides that the parties agree to establish a Continuing Committee for Economic Cooperation, focussing inter alia on:

Cooperation in the field of water, including a Water Development Program prepared by experts from both sides, which will also specify the mode of cooperation in the management of water resources in the West Bank and Gaza Strip, and will include proposals for studies and plans on water rights of each party, as well as on the equitable utilization of joint water resources for implementation in and beyond the interim period. [23]

While this commitment to 'study' and 'plan' the application of equitable utilization is not a direct pledge to implement equitable utilization, it is at the very least an acknowledgement by both parties of the applicability of the international norm as well as a recognition of the rights of each party to their joint water resources. [24] The commitments in the DOP serve as the framework for the Israeli-Palestinian Interim Agreement, [25] which incorporates the DOP in its preamble as a goal of implementation. [26] Although the Interim Agreement sets forth general principles of water cooperation, recognizes "Palestinian water rights in the West Bank," and provides an agreed estimate of "future needs of the Palestinians in the West Bank," it expressly leaves discussion of the definition of "rights" and "ownership" of water sources "in the West Bank" [27] as a subject for the permanent status negotiations. [28] Similarly, although it does not expressly reference the principle of equitable utilization as a basis for those negotiations, the Interim Agreement treats the DOP as an overriding precursor in several references, including the Interim Agreement's provisions on water. Consequently, the use of the principles of equitable utilization as a basis for discussion in the final status talks is already implied.

Viewing the initial list of balancing factors under an equitable utilization and significant harm analysis within the context of fresh waters that are already being consumed to the greatest extent possible poses significant difficulty. Advocates of greater respect for Palestinian water rights will stress the geographic contributions of Palestinian territory (particularly the West Bank) as a catchment for shared underground water resources while also arguing for a riparian-based share of the Jordan River system. [29] Palestinians will also argue that the present gap in consumption between Israelis and themselves, under the social and economic factors of an equitable utilization analysis, may entitle Palestinians to a greater share of the transboundary resources than the Israelis, whose developed economy more easily allows for obtaining resources through alternate means. [30] When viewing the situation within the zero sum confines of existing resources and capability, however, Israelis will argue that their ex isting and prior uses must have priority and that no allocation of water resources to the Palestinians may result in harm to Israel's water resources. [31] Interestingly, the preferred arguments of both sides can cut both ways. For example, Israeli advocates may argue that a natural attribute analysis favors Israel, given its upper riparian position in the Jordan River system and the fact that a significant amount of the mountain aquifer is stored east of Israel's "green line" border. [32] Conversely, Palestinian advocates have argued that the significant harm principle, in keeping with a respect for social and economic needs under the equitable utilization doctrine, may be invoked to prevent one basin state user from harming another through a denial of resources. [33]

Although the multi-factored balancing test of the doctrine of equitable utilization (in conjunction with the significant harm principle) may be difficult to apply in any situation, it is particularly difficult to apply in a situation including extreme scarcity where scarcity forces opposing parties into non-compromising positions. In the Israeli-Palestinian context it is also particularly difficult to reach an acceptable conclusion using only the factors enumerated in the Helsinki Rules and the UN Convention as none of these factors directly addresses perhaps the most relevant factor in the conflict -- the conquest of Palestine. Because it is the historical and practical context of this conquest that drives the present dispute between the parties, the context of the conquest also drives the dispute regarding waters.

A satisfactory and lasting result in the water context cannot be achieved and should not be attempted by wholly divorcing consideration of the overriding conflict. Not only does the overriding conflict resulting from conquest dictate the way in which the parties must come to terms with one another in the abstract, it is also embedded directly within several of the enumerated factors in an equitable utilization context. At the most obvious level, conquest has directly determined the geographic boundaries at issue. It has also directly affected the dependent populations, and, in turns the economic and social needs extant, specifically through the general removal, relocation and restriction of the Palestinian population. Conquest has also determined the development of Israel's prior and existing uses. [34]

In international relations parlance, dealing on an ideological level with the conquest of Palestine might be considered a matter of "high politics," i.e. a fundamental, ideological matter of overriding concern between the disputants, while dealing with the practical allocation of waters in an equitable fashion is a matter of "low politics," i.e. involving determinations as to how disputants will relate to one another on a practical/functional level. [35] This method of description is not intended to deny (i) that both ideological and functional issues are of critical importance, or (ii) that in times of absolute water necessity adversaries might be able to function through a modicum of cooperation without addressing the overriding ideological conflict. [36] What the high politics/low politics distinction demonstrates, however, is that somehow within the context of equitable utilization, the Palestinians and Israelis must address the fundamental and ideological issue most particular and most relevant to their conflict - the Israeli conquest of Palestine.

Addressing the impact of conquest on the water dispute can be achieved by incorporating into the equitable utilization analysis the notion of compensation for the Palestinian water losses resulting from Israeli conquests. Providing compensation for these losses through the rubric of equitable utilization enables an adjustment of allocations that is in the interests of both parties. In a water security sense, Israel can benefit from the stability that compensation may bring to a settlement of disputed rights. For Palestinians, compensation can lead to a more satisfactory allocation of water resources and/or its economic equivalent as well as the satisfaction of establishing with finality the legitimacy of rights that they perceive have been denied them for more than 50 years.

There are two different frameworks under which a Palestinian legal right to water compensation may be established. Rights to compensation can be established through the demonstration of a "wrong" for which Israel must be held accountable. Rights to compensation may also be established in a less normative framework by confirming the existence of past Palestinian rights that have yet to be recompensed under a straightforward condemnation or expropriation analysis. In the impassioned environment of the Palestinian-Israeli conflict, the difference between these two approaches may appear to involve mere semantics, as Israel's advocates tend not to concede that Israel has committed any wrongs, while Palestinian advocates tend to argue that Israeli actions vis-a-vis the Palestinians are entirely wrong. Nevertheless, this bifurcated approach in determining rights to compensation in a water-related context proves useful in analyzing appropriate forms of compensation, as discussed infra.

ESTABLISHING WRONGS IN THE OCCUPATION CONTEXT

There may be several methods of demonstrating water-related wrongs for which Israel may be held accountable to the Palestinians. While the general Palestinian accusation of Israeli "stealing" of Palestinian water is often readily dismissed, [37] more structured arguments are harder to refute. Arguments of Israeli violations of international norms may be demonstrated in a human rights context, [38] or through an application of customary international water law. [39] For the sake of simply demonstrating the efficacy of compensation for a wrong within the confines of this brief paper, however, a more focused approach is warranted. Such focus is available through a study of Israeli water-related practices within the occupied territories of the West Bank and Gaza, and a demonstration of how these practices amount to violations of international law governing belligerent occupations.

When Israel occupied the West Bank and Gaza Strip in 1967, it assumed certain rights and duties imposed on an occupant under the 1907 Hague Regulations Respecting the Laws and Customs of War on Land. [40] Israel is also arguably bound by the constraints of the 1949 Fourth Geneva Convention Relative to Protection of Civilian Persons in Time of War, which imposes broader restrictions on an occupant. [41] Because Israel continues to deny the applicability of the Fourth Geneva Convention to the Occupied Territories (outside of Israel's voluntary, de facto application of its humanitarian provisions), only the more broadly accepted Hague Regulations will be analyzed here, with the understanding that violations under the Hague Regulations would likely amount to violations under the Fourth Geneva Convention. [42]

In general, the international law of belligerent occupation, as reflected in the Hague Regulations, requires states occupying territory as a result of war to abide by the core principle that an occupant may administer the territory that it occupies in a manner that fulfills the needs of the occupying force, acquiring de facto but not sovereign authority over the occupied territory while respecting the interests of the occupied inhabitants. [43] This simplified statement represents a distillation of a variety of conceptual principles in the doctrine. [44]

The Hague Regulations do not include express references to an occupier's rights and obligations regarding the use of water resources. Nevertheless, certain provisions of the Regulations will apply to water resources depending on how they are classified on the basis of ownership (private vs. state) and inherent characteristics (movable vs. immovable, i.e. attached or not attached to real property as a function of value.) [45] Under analyses of customary regional water law, Islamic law, the Ottoman Code and more recent state codification, water and rights to use water have been demonstrated to be private property, public property, state property, and potentially amalgams of all three. [46] As for the movable-immovable distinction, most theorists, noting the inherent connection of water resources to land and the treatment in international tribunals of comparable resources such as oil fields, believe that water resources are best classified as an immovable property. [47] Although there is arguably some room for treating water itself (as opposed to the more general notion of water resources) as a movable property, such treatment would only seem to apply in situations where the water was already captured and stored in a manner removing it from association with real property. Bottled water or water in transportable tanks might thus be construed as movable property in the same manner that oil pumped from the ground and stored in barrels would be considered movable, despite the fact that oil still in the ground is clearly considered immovable property. [48] In addition, there is arguably some room for the treatment of water as a movable property in certain circumstances where it might be considered war materiel. [49]

The most straightforward of the relevant Hague Regulations applies in the case of water or water rights treated as private property, the confiscation of which is expressly and flatly prohibited by Article 46. [50] Despite this prohibition, the Regulations under Article 52 make allowances for requisitions demanded from the occupied inhabitants to meet the necessities of the army of occupation. Article 52 nevertheless mandates that such requisitions be in proportion to the territory's resource capacity and that the inhabitants must be compensated for the requisitioned items. [51] In addition to Article 52, Article 53 allows an occupying force to requisition private movable property, which may serve as war materiel, provided that the property be "restored at the conclusion of peace, and indemnities paid." [52] Thus, under The Hague Regulations any Israeli taking of private Palestinian property -- including water, in and of itself, and the right to water -- is strictly proscribed. The taking of such property for purposes other than those necessary for the army of occupation is forbidden; furthermore, such property taken for the needs of the occupying forces or as war materiel must entail compensation. This result applies whether the private water property taken is considered movable or immovable.

Although the situation for water resources or rights to water if considered state property under the Hague Regulations is not as straightforward as the situation for private property, the proscriptions against an occupier's requisitions are similar. Under Article 55 of the Hague Regulations, an occupying state obtains the right to administer a state's immovable properties such as public buildings, real estate and forests "in accordance with the rules of usufruct." [53] While the Hague Regulations provide no express definition of usufruct, the term is generally defined as "the right of using and enjoying the property of other people without the detriment to the substance of the property." [54] Article 55 places no express limit on how the occupant may use the property, unlike Articles 52 and 53, which are specifically linked to the needs of an occupying force or military uses. Nevertheless, the general intent behind the Hague Regulations, according to the Preamble of the Hague Convention itself, is "to dimini sh the evils of war; as far as military requirements permit." [55] Consequently, the occupier's usufructuary right can arguably only be applied to the extent that it assists the occupant in bearing the expenses of the occupation in a manner consistent with the other restrictions placed on the occupier's use of state-owned property. [56] While some theorists argue that there are no bounds on an occupier's right to usufruct other than a commitment to prevent the destruction of the property, [57] it is generally accepted that the principle of usufruct entails only the "normal use" of the property. [58] Within this concept is the notion that an occupant may only use the immovables that have already been developed, and only to the extent that they were used previously. Thus, a farm producing foodstuffs may still produce foodstuffs and an administrative public building may still serve a public function. In addition, the occupant is restricted to using the state-owned immovables as they existed at the outset of the occupation. Thus, an occupant may not tap new resources or increase the rate of extraction of such resources under the doctrine of usufruct. [59]

In contrast to Article 55's treatment of state immovable properties, Article 53 enables an occupying force to appropriate state movables to the extent that those materials may be used for military operations. The appropriation of such state movable property entails no compensation as does an appropriation of private movable property. There is debate as to whether the language of Article 53 is intended to limit only the materials subject to appropriation or also the types of uses to which they may be put. [60] As in the case of Article 55, however, Article 53 must be read in light of the general intent of the Hague Convention to lessen the impact of war as far as military requirements permit. [61]

Thus, although the Hague Regulations permit an Israeli taking of state water and water resources to a greater extent than private waters, substantial restrictions nevertheless exist. For immovable water resources, Israel's usufructuary right enables only the use of resources to the extent existing at the beginning of the occupation, within the confines of normal use in the area. For movable state-owned water stores taken at the time the occupation began, there appear to be few restrictions other than the requirement that such stores can only be taken to meet Israel's military needs. [62]

ISRAELI PRACTICES ANALYZED UNDER OCCUPATION LAW

Israeli occupation practices with regard to water have been broadly addressed by several scholars. [63] Regardless of the viewpoints of these scholars, all agree on at least two points which may serve the present goal of illustrating the efficacy of compensation based on violation of the norms concerning belligerent occupation. No scholars dispute (i) that Israel pumped underground water sources from within the West Bank and Gaza for use in Jewish settlements located within the occupied territories, and (ii) that Israel as an occupier imposed restrictions on Palestinian use of water supplies.

The pumping of water by the Israelis for use in civilian settlements presents a violation of the Hague Regulations if placed within any of the previously addressed contexts. Since the underground resources in question are generally understood to be immovable property, the public/private dichotomy should be addressed first. If the water taken was private property, [64] its confiscation was prohibited under Article 46. Article 52 allowing for the requisition of private property to serve the needs of the army of occupation or its military operations does not apply in the case of a taking of the water for use in civilian settlements. Even accepting the Israeli position that the civilian settlements serve a military purpose, Article 52 requires compensation for and/or restoration of the taken waters. Thus, Israel's failure to provide such compensation leads to a violation of the Hague Regulations even if Article 52 applies. If any of the waters taken for the settlements were state-owned, a violation would arise u nder Article 55, as Israel's practices have largely gone beyond the principles of usufruct within The Hague Regulations context. The drilling of new wells to provide water to settlements in the West Bank and Gaza involves the exploitation of previously untapped resources. In addition, the increased use by the settlements of up to 60 million cubic meters per year exceeds the normal use constraints imposed by the concept of usufruct as it represents a far greater rate of consumption per person than normal for the area.65 Moreover, these resources are not going to the needs of the army of occupation, as required by the general framework of the Hague Regulations as well as the express specifications of Articles 52 and 53. [66] Thus, the civilian use of the water would entail a violation of the Hague Regulations under Article 52 or 53 even if, as may be argued by some scholars, the underground water may be deemed private or state movable property. [67]

In contrast to the relatively straightforward Hague Regulation violations found in Israel's extraction of water for use in Israeli settlements, the situation regarding Israel's restrictions on Palestinian uses is more complicated, but violations may still be found. For the purposes of discussion here, two instances of restriction are considered: Israel's prevention of Palestinian use of the Jordan River and Israeli restrictions on Palestinian drilling in the mountain aquifer.

When Israel occupied the West Bank in 1967, it seized the western bank of the Jordan River as a military buffer zone and prevented Palestinian use of its waters for agriculture. As the water was not to be used in the occupied territory, Israel's increased diversion of waters in the northern Jordan basin from 1967 onward enabled it to absorb for internal Israeli purposes much of the riparian allotment contemplated for the West Bank under the US-inspired Johnston plan of the mid-1950s. [68] Although the seizure of the land along the West Bank of the Jordan for strictly military purposes can be rationalized under the Hague Regulations, if the property taken was private property, compensation and restoration are due to the owners. Although the Hague Regulations do not expressly allow for the taking of private immovable property such as land, an occupant may arguably take temporary possession of privately owned immovables for the purpose of quartering members of the armed forces and administration. [69] Neverthel ess, rights to compensation for the use of the property arise as if the taking were a requisition under Article 52, with the understanding that the occupant may not acquire title to the property and cannot sell it. The value of the riparian rights attached to the occupied land may be measured by the increased Israeli use of the river upstream and the continued use by settlers in the Jordan valley. Such use, involving a taking from the occupied civilian populace for the purposes of the occupant's civilian uses within Israel and the occupied territory, appears to be a violation of the Hague norms in that it goes beyond the requirements of the army of occupation. Even if this "use" violation is disregarded, further violations arise in Israel's failure to provide compensation for the riparian rights.

For land along the west bank of the Jordan River deemed to be state property, Israel's use of the riparian rights would be circumscribed under the concept of usufruct found in Article 55. [70] Israel has gone beyond the constraints of Article 55 in that it has used the riparian rights for civilian purposes rather than support of its army. In addition, because Israel has shifted use of much of the water away from the West Bank, it has arguably deviated from the normal use principles associated with usufruct. [71]

Israeli restrictions on Palestinian pumping in the mountain aquifer may also be viewed as a violation of the Hague Regulations. Where the right to pump water from the aquifer was a private right, under Ottoman and Jordanian law before the occupation began, [72] Israeli measures to apply Israeli law de facto and declare all groundwater public property may be considered a requisition of private property. Subject to Article 52, such requisitions (i) may only be taken for the needs of the army of occupation, (ii) must be in proportion to the resources of the area, and (iii) must entail compensation. [73] In addition, Israel's changing of local law to make water a public commodity may also classify as an ultra vires act under Article 43, which requires an occupant to take measures necessary for ensuring public order and civil life while "respecting the laws in force" prior to the occupation "unless absolutely prevented." Israel's advocates may argue with some validity that the scarcity of resources in the region required administrative control to prevent damage to the water table, thus qualifying Israel's actions as a means of preserving public order. This argument is weakened, however, by Israel's decision to allow substantial extractions of the mountain aquifer by settlements while capping Palestinian use at a level insufficient for development purposes. [75]

Under Article 55 of the Hague Regulations, Israel may have standing to curtail pumping of waters where such rights to pumping are state property. Arguably, Israel could be viewed as an occupant choosing not to exercise its usufructuary right. However, where laws prior to the occupation allowed for certain uses of water, Israel is under the constraints of Article 43 if it acted to change those laws. Moreover, as an occupant, Israel is under the general obligation to ensure public order and civil life. To the extent that Israel's refusal to grant permission to use the aquifer detracts from such goals, it is arguably a violation in spirit of the Hague Regulations. The existence of such a violation may be even clearer when Israel's actions are motivated by the need to ensure its own water supply as opposed to the water supply of the Palestinians.

Israel's motivations in restricting Palestinian uses clearly stem from the transboundary nature of much of the mountain aquifer and the need that Israel perceives in maintaining its own water consumption. Some have argued that the transboundary nature of these resources prevents the simple application of the laws of belligerent occupation in the absence of broader principles under international water law. [71] When international law regarding transboundary waters is applied in the case of a belligerent occupancy, the outcome is an application of the equitable utilization doctrine. Even under this tempered approach to viewing Israel's occupation practices framework, Israel's unilateral actions and the inequities resulting between Palestinian and Israeli water consumption warrant scrutiny. [77]

Having demonstrated Israeli violations of belligerent occupation norms in the context of water resources, addressing the basis for redress involves a fairly straightforward analysis. In instances where Israel's violations arise from a taking of private property without compensation, such as under Articles 52 and 53, the violation may be corrected if such compensation is provided and accepted. Where compensation is not called for under the violated regulation itself, such as in the case of Israel's abuse of its usufructary responsibilities over state properties or a taking in violation of Article 46 not permitted by Articles 52 or 53, Article 3 of the Hague Convention makes a violating state liable to pay compensation for any violation of the Regulations "if the case demands." A review of the drafting history of the Hague Convention indicates the intention that Article 3 be invoked by private citizens for damages suffered in violation of the Regulations. [78] Nevertheless, it has been usual state practice to avoid individual claims and instead rely upon lump sum settlement agreements as part of a peace treaty between belligerents. [79]

Even if Article 3 is deemed an inappropriate basis for asserting Israel's liability for compensation, customary international law on state responsibility (as presently codified in the UN Draft Convention on State Responsibility) serves as a back-up basis for a compensation claim in light of Israel's violations of the Hague Regulations. Put simply, the international law of state responsibility holds states accountable for their wrongful actions, demanding among other results the cessation of wrongful conduct and the provision of reparations or compensation as warranted. [80] Any state conduct characterized under international law as wrongful entails the responsibility of the state. This principle--one of the most strongly upheld in international law--is reinforced by state practice and judicial decisions. [81] Under the principle of state responsibility, an injured state is entitled to obtain from the state that has committed the wrongful act compensation for the damage caused by the act, if and to the extent that the damage is not made good by restitution in kind. [82] Thus, a violation of the Hague Regulations gives rise to an independent basis for holding Israel responsible for its actions as well as a basis for compensation.

ISRAELI TAKINGS UNDER A NON-NORMATIVE ANALYSIS

In addition to an analysis of compensation based on accountability for violations of international occupation law, it is also necessary to consider the merits of water-related compensation for Palestinians under the more general theory of compensation for property taken as a result of war. Such an analysis provides an opportunity to consider compensating Palestinians for water rights taken through appropriation by Israel within Israel's post-1949 boundaries. Whereas the previous discussion of the rules of belligerent occupation focussed on a demonstration of Israeli wrongs, the present analysis requires more focus on clarifying Palestinian rights, which were expropriated--either rightfully or wrongfully--as a result of Israel's conquests and then determining whether compensation (or even restitution) is now owed by Israel for the "taking" of those rights.

Although the illegality of territorial acquisition through force is generally recognized under international law, this maxim arguably did not become firmly entrenched until the adoption of the United Nations Charter in 1945, with Article 2.4 of that instrument expressly proscribing members of the United Nations from using "force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." [83] Nevertheless, the UN member states have in certain instances acquiesced, at least temporarily through inaction against an aggressor state, to situations in which the aggressor has taken property through force. [84] Such acquiescence in the case of Israel's expansion of its borders beyond those determined under the 1948 UN partition plan, at least as concerns its expansion from 1948 through the beginning of 1949, can in some part be explained by Israel's (and Palestine's) lack of membership status in the United Nations at the time . [85] Regardless of this de facto acceptance of Israel's territorial expansion between 1948 and 1949, international law requires some form of compensation to the Palestinian victims of the Israeli expansion. Although the practice of states to pay compensation for seizures of property after conquest is spotty, it is generally accepted that states must compensate for the expropriation of alien peoples' property. [86] In addition, as discussed below, there have been instances where conquered peoples have been offered compensation based on attempts at effecting equity.

The right of individual Palestinians to compensation for their losses of private property is readily accepted by scholars [87] and was explicitly mandated by the United Nations in General Assembly Resolution 194 of 11 December 1948. [88] At paragraph 11, Resolution 194 resolves "that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property, which under the principles of international law or in equity, should be made good by the Governments or authorities responsible." [89] Although Resolution 194 has not yet been referenced by any agreements between Israel and the Palestinians, its implementation, and in particular the implementation of paragraph 11, has repeatedly been called for by the UN General Assembly in its discussions of the work of the United Nations Relief and Works Agency for Palestine and the United Nations Conciliation Commission for Palestine. [90]

The matter of obtaining compensation for public or communal property is not as clear as the matter of obtaining compensation for the private property of individuals. The failure to provide compensation to the German State at the end of World War II for territory ceded to Poland provides an often-cited example of the refusal of conquering states to provide compensation to the conquered state. Nevertheless, historical examples of such compensation exist. The Treaty of Guadeloupe Hidalgo ending the U.S.-Mexican War in 1848 included a lump sum payment to Mexico "in consideration of the extension acquired by the boundaries of the United States." [91] A component of West Germany's payments to Israel and world Jewry under the terms of the Luxembourg Treaty of 1952, also known as the Shilumim Agreement, was intended to cover payment for collective Jewish claims involving heirless communal property lost during World War II and the Holocaust. [92] Even the United States' notorious treatment of indigenous American Indi ans involved certain instances of state and federal compensation or quasi-restitution for the taking of native lands, although any instances of fair compensation were the exception rather than the norm. [93] Each of these situations involved voluntary payments rather than payments mandated by international law in a doctrinal sense. Nevertheless, each situation underscores a sense of obligation arising with the need of a state to seek legitimacy in the international community. West Germany's concern for restoring its stature after the abuses of the Third Reich is obvious. In the United States, the Indian Claims Commission Act of 1946 was in part compelled by American reflections on Hitler's justification of the invasion of Czechoslovakia and Poland by invoking the example of the United States' treatment of indigenous American Indians during the period of manifest destiny. [94] Thus, the international community of nations exerts certain moral pressures on states to compensate for the takings from other nations.

Applying the Palestinian rights to compensation for takings in the water context involves an analysis of which water rights may have been lost as a result of the confrontations in 1948. As Israel's expansion of its boundaries enabled it to use more of the transboundary groundwater resources underlying the foothills of the West Bank, the mountain aquifer provides a useful point of focus. The accounts of several scholars suggest that maximal use of the westward flowing waters from the mountain aquifer was achieved sometime in the 1950s, thus implying that there was an increase in usage from 1948 up until that point. [95] Had Israel not extended its boundaries beyond those designated in the UN partition plan, the amount of water available for such increased use would have been subject to equitable allocation between the parties under principles of international water law. As both Jews and Arabs were pumping water from underground sources prior to 1948, [96] an allocation of this increased capacity generated fro m 1948 through the 1950s would have been divided more equitably between the parties in the absence of Israel's conquests. Thus, although Israel's advocates claim with apparent justification that westward flow of the mountain aquifer was unaffected by Israel's occupation of the West Bank beginning in 1967 and that Israel has not, in effect "stolen" water from underneath the Palestinians through the occupation, it appears that the uncompensated "taking" of a certain portion of water occurred as a result of Israel's conquests in 1948. Such a taking may enter the rubric of compensation owed to Palestinians, whether the water was of a public or private nature as there is support in international practice for the compensation of both types of property. Similar analyses can be applied in the case of the coastal aquifer. Israel presently does not consider the coastal aquifer to be a shared resource, although it would have been under the UN partition plan. As Israel's alleged exclusive control over this water source w as obtained through conquest, proper water-related compensation to the Palestinians must also take into consideration how the aquifer's waters would have been allocated equitably in the absence of conquest.

FITTING COMPENSATION INTO THE EQUITABLE UTILIZATION FRAMEWORK

Having demonstrated the basis for compensation in a water-related context, it is now appropriate to address how compensation may fit into the framework of equitable utilization. The notion of compensation may be worked into the doctrine either directly or indirectly in the Israeli-Palestinian context. A direct approach might involve adding a separate factor for consideration to the lists provided by the Helsinki rules and UN Convention. The "factor" could be a non-normative analysis addressing first, the degree to which the historical relationship between the co-basin states may have affected allocation of waters, and second, whether an adjustment is required to effect a more equitable result. A more focused, but still non-normative approach might involve inquiry into the degree to which any of the basin states has directly injured another co-basin state in a water-related context with the understanding that the injury must be addressed before an equitable result can be achieved. A more normative approach, i nvolving an inquiry into the degree to which one basin state committed a wrong against another in a water-related context is a third option, but because this approach would focus on blaming a wrongfull actor, it might dissuade that actor from entering into negotiations based on equitable utilization. [97]

Alternatively, the notion of compensation does not have to be inserted into the doctrine of equitable utilization through the designation of a separate factor, but instead could be considered as a sub-component to each of the presently enumerated factors. Focusing on the factor of past and existing uses of water, for example, Israeli claims in this regard would be balanced with consideration of how Israel's past and existing uses were established through conquest without compensation. This balancing would likely result in a discounting of Israel's prior use claims vis-a-vis the Palestinians, whose own abilities to establish similar claims were altered by Israel's actions. In this context, the present stalemate between Israel's claims based on prior use and Palestinian claims based on territorial and economic and social needs may give way to further concessions to the Palestinians, based on the treatment of Israel's prior use claims within a historical context. With regard to the territorial considerations in an equitable utilization context, discussion of what water sources should actually be characterized as transboundary should depend not simply on what boundaries were established in 1949, but also on how those boundaries were established by conquest without compensation. One result of such consideration might be a clearer understanding between the parties of the soundness of treating the coastal aquifer as a joint resource, despite the present controversy concerning its relationship to the water underlying Gaza. [98] Another potential result would be the recognition of a historically established Palestinian right to receive water from the coastal aquifer. Such a right would serve as a balance to the recognized Israeli right to certain resources from the mountain aquifer. Providing the legal basis for the Palestinian right to a portion of the coastal aquifer may help quell Palestinian fears of depending solely on Israeli generosity or "best efforts" in the event that some component of the ultimate solution bet ween the parties involves the supply of certain Palestinian areas with water from Israel's water system as provided in the Interim Agreement. [99]

Because the doctrine of equitable utilization provides ample flexibility, the incorporation of a compensatory element into its framework can be done in a variety of ways with a myriad of potential results. All that is important at the outset, however, is the recognition by both parties that the notion of compensation for conquest must be included in the discussion and that it be given its relatively important weight in relation to the other factors.

FORMS OF COMPENSATION

Once the notion of compensation is accepted by the parties as part of their means to negotiating and solving their water disputes, a variety of methods may be broached for implementing such compensation, including the possibility of working out cash payments for past and/or future compensation, concessions regarding the reallocation of particular resources in the future, and even restitution or repayments-in-kind for past takings. As discussed below, there may be overlap in the practical application of each of these notions as monetary payments may arise under several different approaches. Furthermore, because of the complexity of the compensation issue and the need to take into consideration practical realities, it is likely that an optimal outcome for both the Israelis and the Palestinians may involve a combination of the above approaches. Such a result is anticipated in the doctrine of equitable utilization, which encourages flexibility in deriving solutions.

It is beyond the scope of this paper to determine precise values of water-related compensation owed to Palestinians. Nevertheless, the topic may be addressed on a conceptual basis. Some scholars have suggested that Israel agree to make cash payments for the water taken from Palestinians in the past. [100] The amount of such payments would inevitably be a matter of controversy. One simple approach would involve a calculation of how much water Israel has obtained and used as a result of its conquests and a determination of the value of that water. The analysis is complicated, however, by the fact that the water might be valued through different measurements. Value might be determined based on (i) the price Israelis paid their government for the water, (ii) the price Palestinians might have charged for the water had the transfer occurred under arms-length market conditions, or (iii) the price Israel would have had to pay for the water had it been obtained through internal means, i.e., something akin to a replac ement cost. [101] The analysis is also complicated by the notion that takings from different sources of water and under different circumstances might require different determinations of compensation. In discussions of compensatory justice, scholars have argued that the context of a taking must have a bearing on compensation. Where a taking is based strictly on dire necessity, the level of compensation required to achieve a just result might be different than a situation involving a taking based not on dire circumstances, but instead on a desire for profit. [102] Along these lines, there is arguably a distinction between Israel's takings resulting from its conquests in 1948 and its takings during the occupation-era, particularly with regard to the water taken for Jewish settlements. While the situation of the Jewish people in Palestine in the aftermath of the near eradication of European Jewry during World War II and the Holocaust may or may not have been tantamount to that of the oft-cited example of a freezi ng hiker breaking into private property for the sake of survival, it is certainly closer to that scenario than the situation surrounding the Jewish settlement movement beginning in earnest during the early 1970s. In the case of the latter, it seems appropriate that a compensatory element include not only the value of the water taken per se, but also an amount to account for the profits derived from what is generally recognized as illegitimate use based, as demonstrated above, upon a "wrong" under the norms associated with belligerent occupation. [103]

Cash payments might also be useful in providing a resolution to any future takings (or Israeli uses) anticipated by the parties. Such payments might not necessarily be associated with one lump sum, but could arguably consist of annual payments based on use or the right to usage. The case of the settlements provides a useful example. Should the settlements continue to exist by agreement after the final status negotiations under Israeli administrative rule, but without a cession of Palestinian sovereignty over the land and resources underlying them, Israel and a future state of Palestine might agree to an annual payment by Israel to compensate Palestine for the right of the settlements to pump water from the primarily Palestinian resources, such as the eastern portion of the mountain aquifer. Such payments would continue on something akin to a rental basis for the time in which the settlements continued to be under Israeli administration. [104]

In the equitable utilization context outside of the notion of monetary compensation, Palestinian rights to compensation may also strengthen the legal basis for a reallocation of certain resources in the event that the parties intend to clarify and separate use of those resources. As compensation for previous takings, Israel may consider conceding sole use of certain transboundary resources to the Palestinians. For example, some scholars note that clear division of the mountain aquifer may provide a useful result, with the Palestinians taking sole possession of the eastern and northern aquifers. [105] Although the eastern aquifer is considered an endogenous Palestinian resource by some scholars, [106] others have classified it as a transboundary resource because a small portion of its recharge area may lie to the west of the "green line" border between Israel and the West Bank. [107] The northern aquifer is categorically a transboundary resource. While its recharge area lies almost entirely in the West Bank, the springs and wells tapping the resource are presently in Israel. [108] Under a plan postulated by one scholar, both the eastern and northern aquifers could become sources reserved for and solely controlled by Palestinians in return for an understanding that the western aquifer be solely controlled and used by Israel. [109] Such a plan would more than double the amount of mountain aquifer water presently available to Palestinians, while still allowing Israel to use the bulk of the mountain waters without providing further compensation for such use. [110] Although Israel may be unlikely to agree to such a plan as an act of unilateral "generosity," when the water-related compensation owed to the Palestinians is considered, such a reallocation may be seen more easily as an Israeli obligation in return for previous takings. Moreover, Israeli water security and environmental concerns could be addressed in conditions imposed upon Palestinian uses (including, potentially, the market-rate sale of water, or "rental" of water rights, to settlements) that would be beneficial to both sides. [111] A framework involving compensation, thus provides an important legal underpinning for the transferring of transboundary resources to sole use by one party. The same compensation based rationales may be applied in the context of a reallocation of the Jordan River waters as well. Although providing sole control to a portion of the river is not possible given the existence of other riparian states, the notion of compensation strengthens the argument that Palestinians are entitled to an increased amount of water from this source, even if delivered through the Israeli water system.

Finally, even a restitution analyses may enter the equation for providing redress to Palestinians. Although some scholars argue the impossibility of restitution in the context of the Israeli-Palestinian dispute, particularly regarding the right of Palestinians to repossess their homes in what is now Israel, [112] these arguments are based less on legal rights and more on what are perceived to be practical impossibilities. State practice in the aftermath of international disputes resulting in massive relocations of populations has often been to eschew claims for restitution and compensation as a practical matter. [113] However, where restitution is practically possible, it must be considered. Restitution or quasi-restitution in the context of indigenous people's claims in the United States, Canada and Australia has been deemed feasible in instances when tracts of land remain available to be returned to native peoples. [114] Similarly, in Eastern Europe, efforts to return real property, such as apartments, to individuals after the downfall of communism have also involved restitution efforts. [115] Where the rights to be returned are more intangible, such as rights to water use in the Israeli-Palestinian context, restitution may also be feasible. Although the transfer of real estate within Israel to Palestinians may now be impossible, as a practical matter, Israel may restore Palestinian water rights in any and all components of the Israeli-Palestinian watershed, regardless of the location of any individual source. Thus, Israel may feasibly restore Palestinian rights to water wholly within the confines of Israel itself without undertaking the practical impossibility of returning the underlying territory to Palestinian sovereignty. Although Israelis may initially scoff at the notion of returning such rights, similar attitudes were held in the United States, Canada and Australia prior to more recent attempts to correct past injustices. Moreover, were Israel to restore such Palestinian water rights, it would increase the likelihood of Palestinian respect for Israeli rights to transboundary resources.

FINAL STATUS RAMIFICATIONS

As outlined in the previous section, a variety of forms of compensation may be considered in the Israeli-Palestinian water context. Lump sum payments for previous water takings, continuing payment for ongoing takings, recognition of sole jurisdiction by either party over various components of the water resources in the region, and the restitution of water rights to the Palestinians. Each and all of these types of compensation may play a significant role in how the parties choose to conduct and implement the final status negotiations pertaining to water. The compensation rationale, within the context of equitable utilization, can serve as the legal underpinning for both an equitable separation of the water sources between the parties, [116] or the truly joint management of the water sources, where Palestinians and Israelis both participate in the administrative control of all water sources regardless of their location in an effort to effect optimal use through adherence to the principle of communal interests. [117] Such joint management on a more even scale than presently included in the Interim Agreement [118] would be based on an Israeli recognition of Palestinian water rights through the process of restitution described previously. At the very least, accepting the notion of compensation serves to push Israel toward an acknowledgement of not only the Palestinian needs behind, but also the legal rationale for a reallocation of the water sources presently dominated by Israel.

Perhaps more important in the final status negotiations than the particular payment or water reallocation formulas that might be derived from the above concepts, however, is the overriding value attached to the direct address by the parties of compensation for Israeli conquests and Palestinian losses. Within the notion of compensation, both parties acknowledge rights of the other. In accepting compensation, Palestinians recognize the fact that some of their losses are final and that it is not possible to restore Palestine to its status prior to 1948. In offering compensation, Israel recognizes the existence of certain Palestinian rights that heretofore have been a difficult subject for Israelis to address. In building a new nation-state, regardless of the justifications for such a state, Israel has been remiss in addressing the price that was paid by another people. The general lack of empathy within the Israeli political establishment for the plight of the Palestinians (particularly surprising given the his torical suffering of the Jewish people) has served as an obstacle to progress in the negotiation and implementation of peace. Israeli recognition of and compensation for vanquished Palestinian rights would signal the reversal in Israeli attitudes necessary to ensure a peace suitable for both parties.

The final agreement between the two peoples must encompass the past rather than ignore it. Using water as a platform for discussing the delicate issue of compensation can serve as a springboard for similar discussions in other areas where past rights and ownership must be established, analyzed and valued. Only by approaching such issues in a manner that recognizes past and present Palestinian rights may the parties achieve an agreement that has practical and palatable meaning to the peoples of both nations. Israel cannot secure and the Palestinians cannot accept a peace agreement that is wholly on Israel's own terms, without any recognition of past Palestinian grievances.

Jamal L. El-Hindi is an attorney practicing in Washington, D.C., at the law firm of Patton Boggs LLP. The views expressed in this article are solely the author's.

ENDNOTES

(1.) Among the many works that provide noteworthy discussion of the issue are: Eyal Benvenisti and Haim Gvirtzman, "Harnessing International Law to Determine Israeli-Palestinian Water Rights," National Resources Journal, vol. 33 (Summer 1993) p. 543; Sharif Elmusa, "Dividing Common Water Resources According to International Water Law: The Case of the Palestinian-Israeli Waters," National Resources Journal, vol. 35 (Spring 1995), 223; Jeffrey Diliman, "Water Rights in the Occupied Territories," Journal of Palestinian Studies, vol. 19, no. 1 (Autumn 1989) 46; Jonathan Kuttab and Jad Isaac, "Approaches to the Legal Aspects of the Conflict on Water Rights in Palestine/Israel," in Water and Peace in the Middle East, eds. Jad Isaac and Hillel Shuval (Amsterdam: Elsevier 1994); Gamal Abouali, "Continued Control: Israel, Palestinian Water and the Interim Agreement," Palestine Yearbook of International Law, vol. 9 (1996-97), 63; and Aaron Wolf, Hydropolitics along the Jordan River: Scarce Water and its Impact on the Arab-Israeli Conflict, (Tokyo: United Nations University Press 1995).

(2.) Oscar Schacter, International Law In Theory and Practice, Developments in International Law, V. 13, (Kluwer 1991), 7.

(3.) International law on any given topic can arise from a variety of sources including agreements, conventions or practices among states; generally recognized principles; scholarly writings; and judicial decisions.

(4.) This doctrine, also known as the Harmon Doctrine after US Attorney General J. Harmon espoused it in a conflict between the United States and Mexico over the Rio Grande in the late 1800s, is no longer considered a rational approach to transboundary water analyses. See Jerome Lipper, "Equitable Utilization" in The Law of International Drainage Basins, ed. Albert Garretson (Dobbs Ferry: Oceana 1967), 15-64 [hereinafter Lipper].

(5.) Lipper, 23.

(6.) As the understanding of the inter-connection of surface river systems and underground resources has increased, both have generally been incorporated into the notion of an international watercourse or drainage basin.

(7.) Lipper, 23-38 (convincingly demonstrating his point through a thorough analysis of state action, adjudications, inter-statal agreements and commentary).

(8.) Within this balancing of factors, the underlying tenets of absolutist theories continue to manifest themselves. For example, emphasis on certain geographic factors of a drainage basin, such as the amount of drainage area or source contribution within a state's boundaries, harkens to the doctrine of absolute territorial sovereignty. Emphasis on protecting the chronological past use of a downstream state reflects the notion of absolute territorial integrity. Elmusa, "Harmonizing Equitable Utilization and Significant Harm: Comments on the 1997 ILC Convention," paper delivered at Conference on Water Dispute Prevention and Development: South Perspectives, American University, Washington, DC, 12-13 1998 reprinted at gurukul.ucc.american.edu/maksoud/water98/present7.htm. (Hereafter, Elmusa Comments at American University).

(9.) Lipper, 40.

(10.) Helsinki Rules on the Uses of the Waters of International Rivers, Adopted by the International Law Association at its 52nd Conference, Helsinki 1966 reprinted in Water Resources and Conflict in the Middle East, ed. Nurit Kliot (New York: Routledge Publishers 1994), 277.

(11.) A culmination of the long-term efforts of the International Law Commission, the UN Convention was adopted by a vast majority of the UN General Assembly on 21 May 1997. Although its adoption by the General Assembly provides it with a certain amount of authority, the convention has not yet entered into force and will not do so until at least 35 countries have ratified it. To date only 6 countries including Jordan, Lebanon and Syria have ratified the convention. UN Doc. A/S 1/869, reprinted at http://www.un.org./ law/ilc/texts/nonnav.htm.

(12.) Robert Hayton and Albert Utton, "Transboundary Groundwaters: The Bellagio Draft Treaty," 29 Natural Resources Journal, vol. 29 (Summer 1989), 663.

(13.) UN Convention, Article 5; Helsinki Rules, Article 4; Bellagio Draft Treaty, Article 2.

(14.) Identical language exists in both instruments at UN Convention, Article 6 and Helsinki Rules, Article 5.

(15.) UN Convention, Article 7.

(16.) Article I, Complementary Rules Applicable to International Resources, Adopted by the International Law Association at its 62nd Conference, Seoul 1986 reprinted in Kliot, 285. Arguably, the original Helsinki Rules also included the notion of significant harm through their factors acknowledging the importance of past utilization and avoidance of "substantial injury" to co-basin states.

(17.) Benvenisti and Gvirtzman, 546-547. The World Bank has apparently taken a similar approach. Raj Krishna, "International Watercourses: World Bank Experience and Policy," in Water in the Middle East: Legal, Political and Commercial Implications, eds. J.A. Allan and Chibli Mallat (London: I.B. Tauris Publishers), 43-45.

(18.) Jorg Barandat and Ayttll Kaplan, "International Water Law: Regulations for Cooperation and the Discussion of the International Water Convention," in Water in the Middle East: Potential for Conflicts and Prospects for Cooperation, (Berlin: Springer 1998), 19.

(19.) Seoul Rules, Article 1; UN Convention, Article 72.

(20.) Elmusa, Comments at American University.

(21.) Palestinians assert that there exists a natural underground flow of parts of the coastal aquifer into the area underlying Gaza and that Israel has taken steps to inhibit this flow. Israel asserts that no such natural flow exists. For a more detailed description of these water sources, see Elmusa, Water Conflict, Chapter 1.

(22.) Declaration of Principles on Interim Self-Government Arrangements, Washington, DC, 13 September 1993, reprinted in Occasional Document Series, no. 7, Jerusalem Media & Communication Center (August 1996); see also 7 Palestine Y.B. Int'l L. 243 (1992/94). The DOP is sometimes referred to in other literature as Oslo I.

(23.) Id. at Annex III (emphasis added).

(24.) Given the general acceptance in the international community of the equitable utilization doctrine and the understanding that transboundary waters exist in the Israeli-Palestinian context, the reference to equitable utilization in DOP, Annex III might be construed by either party as a delicately worded implied pledge to abide by the doctrine even in the event of no further agreement between the parties.

(25.) Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Washington, DC, 28 September 1995, reprinted in Occasional Document Series no. 7. Jerusalem Media & Communications Center (August 1996); see also 8 Palestine Y.B. Int'l L. 353 (1994/95). The Interim Agreement is sometimes referred to in other literature as Oslo II.

(26.) The preamble to the Interim Agreement states that the parties are "desirous of putting into effect the Declaration of Principles on Interim Self-Government Arrangements signed at Washington, DC on 13 September 1993 and the Agreed Minutes thereto." The Interim Agreement, although it expressly supersedes the Gaza-Jericho Agreement of May 1994 and the Transfer of Powers agreements of August 1994 and August 1995, does not supersede the DOP, but instead treats it as an overriding precursor in several references, including the Interim Agreement's provisions on water. See e.g., Interim Agreement Preamble, language under the heading "Following"; Interim Agreement, Art. XVII.1.

(27.) Interim Agreement, Annex III, Article 40, Principles 1, 5 and 6. Although the text of the agreement repeatedly uses the term "in the West Bank," under the principles of international water law a geographic limitation of such rights is not possible. Just as rights to water "in Israel" include water located outside of Israel, discussion of the rights to water, "in the West Bank," necessarily includes common water sources outside of the West Bank. The upper Jordan River as discussed infra serves as an example here.

(28.) For a more complete discussion of the water-related provisions of the Interim Agreement, see Abouali, 101 (1996-97); Greg Shapland, Rivers of Discord: International Water Disputes in the Middle East (London: Hurst & Company 1997), 23, 30.

(29.) H. Zarour and Jad Isaac, "A Novel Approach to the Allocation of International Water Resources," in Water and Peace in the Middle East, eds. Jad Isaac and Hillel Shuval (Amsterdam: Elsevier 1994), 389.

(30.) Sharif Elmusa, Dividing Common Water Resources, 242.

(31.) Benvenisti & Gvirtzman, 547-549; Martin Sherman, The Politics of Water in the Middle East: An Israeli Perspective on the Hydro-Political Aspects of the Conflict, (New York: St. Martin's Press 1999), Chapter 10.

(32.) Benvenisti & Gvirtzman, 557.

(33.) Elmusa, Dividing Common Water Resources, 240; Elmusa, Comments at American University.

(34.) This is particularly true within the context of the mountain aquifer, largely underlying the West Bank. Although more passive Jewish use of the western section of the mountain aquifer began in the 1920s, several scholars have indicated that the more substantial Israeli use of these waters at roughly the same rate as today did not begin until the 1950s. See e.g., Daniel Hillel, Rivers of Eden: The Struggle for Water and the Quest for Peace in the Middle East, (Oxford University Press 1994), 204; Benvenisti & Gvirtzman, 561. Consequently, this use was wholly or partiality facilitated on the basis of Israel's conquests prior to 1949.

(35.) For a thorough discussion of how ideological and other fundamentally statist concepts impede upon the cooperation of co-basin states to attain maximal regional developments, see Miriam Lowi, Water & Power: The Politics of a Scarce Resource in the Jordan River Basin, 31 Cambridge Middle East Library, (Cambridge: University of Cambridge Press 1993).

(36.) Id., at Chapter 7, discussing Israeli-Jordanian water relations after 1967.

(37.) Sherman, 60-66.

(38.) Abouali, 89-101.

(39.) Elmusa, Water Conflict, 311, arguing that Israel committed a wrong in its unilateral implementation of water projects affecting a transboundary resource without prior notification to other basin states.

(40.) 1907 Hague Regulations Respecting the Laws and Customs of War on Land, reprinted in Charles Bevans, Treaties and Other International Agreements of the United States of America 1776-1949, vol. 1 (Washington, DC: Department of State Publications 1968), 631-653. Although Israel is not a party to the Fourth Hague Convention, the Hague Convention and corresponding regulations are broadly accepted in the international community as customary law, imposing an obligation on all states to abide by the treaty's dictates. Gerhard von Glahn, "Taxation Under Belligerent Occupation" in International Law and the Administration of the Occupied Territories, ed. Emma Playfair (Oxford: Clarendon Press 1992) (hereinafter Playfair), 344, citing Trial of Major War Criminals before the International Military Tribunal, 1:253-4, reprinted in Federal Rules Decisions, vol. 6 (1946), 69, 130. Israel accepts the status of the Hague Regulations as customary international law and Israeli courts have applied the Regulations in the Wes t Bank and Gaza despite the Israeli Government's official position that the Regulations apply on a de facto and not de lure basis. See, Harold Dichter, "Israel's Water Policies in the Occupied Territories," Harvard Int'l L. Journal, Vol. 35, no. 2 (Spring 1994) 565, 574, n. 67; Eyal Benvenisti, The International Law of Occupation, (Princeton: Princeton University Press 1993) 108-111. The occasional Israeli argument that the Hague Regulations were not meant to apply to prolonged occupations, or at least must be interpreted in light of evolving circumstances, is explored and largely refuted by Adam Roberts, "Prolonged Military Occupation," in Playfair, 25 and by Antonio Cassese, "Powers and Duties of an Occupant in Relation to Land and Natural Resources," in Playfair, 419.

(41.) Fourth Geneva Convention Relative to Protection of Civilian Persons in Time of War, 6 UST-3516, TIAS No. 3365, 75 UNTS 287 [hereafter, Fourth Geneva Convention].

(42.) Although the Fourth Geneva Convention delineates greater powers to an occupier, it also imposes stricter duties upon the occupier in terms of respect for the rights of the occupants. Benvenisti, International Law of Occupation, 98-106; Dichter, 578. For a discussion of how the Fourth Geneva Convention and Protocol to the Fourth Geneva Convention might apply in the West Bank water issue, see Jamal EI-Hindi, "The West Bank Aquifer and Conventions Regarding the Law of Belligerent Occupation," Mich. J. Int'l L. vol. 11 (Summer 1990), 1400, 1406-1418.

(43.) Article 43 of the Hague Regulations referencing an occupier's obligation to administer order with respect for existing laws can be viewed as a cornerstone of international occupation law. Eyal Benvenisti, Law of Occupation, 7. Article 43 states that "[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and [depending on translation, "safety" or more appropriately "civil life,"] while respecting, unless absolutely prevented, the laws in force in the country."

(44.) For a fuller description of these principles, see, e.g. Cassese, 420; Roberts, 27-28; Gerard von Glahn, Law Among Nations, 7th ed. (Boston: Allyn & Bacon 1995), Chapt. 25.

(45.) Abouali, 85; Dichter, 575; El-Hindi, 1409-1417.

(46.) Rapporteurs on the situation in Palestine in 1946 determined that the Ottoman Civil Code, i.e. the Mejelle, provided (i) a legal basis for private and public surface waters, and (ii) an implied right to private ownership of wells with a state interest in regulation. A Survey of Palestine Prepared in December 1945 and January 1946 for the Information of the Anglo-American Committee of Inquiry, vol. 1 387 (1946; reprint Ann Arbor: Braun-Brumfield / Institute for Palestine Studies 1991). Other scholars have addressed the concept of communal propety (mubah) in the water context. Communal water yet-to-be-captured, although distinct from private property (mulk), is arguably not the property of the state. Abouali, 71-72. For a contrary view see Dante Caponera, Water Laws in Moslem Countries, (Rome: United Nations Food and Agriculture Organization 1973), 37, 99 (partially equating mubah with public waters vested in the state, but acknowledging a difference between the two in the case of Jordanian Law No. 40 of 1952 on Settlement of Land and Water Rights, whereby all unregistered waters are acquired by the state).

(47.) Cassese, 431; Dichter, 582. For a theoretical basis to accord an apparently movable property with the protections typically associated with an immovable property based on economic principles, see Athanassios Yiannopoulos, "Movables and Immovables in Louisiana and Comparative Law," Louisiana Law Review, vol. 22, 517, 518 (1962).

(48.) United States Department of State Legal Advisor, Memorandum of Law, 1 October 1976, reprinted in International Legal Materials, vol. 16 (1977), 733, 742.

(49.) For a discussion of the strategic significance of water and its potential use as a weapon through deprivation, see Morris Greenspan, The Modern Law of Land Warfare, (Berkley: University of California Press, 1959), 3 16-317.

(50.) Article 46 reads in full: "Family honors and rights, individual lives and private property, as well as religious convictions and liberty must be respected. Private property cannot be confiscated."

(51.) Article 52 reads in part: "Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.... Contributions in kind shall as far as possible be paid in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible."

(52.) Article 53 reads in full: "An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations," (emphasis added).

(53.) Article 55 reads in full: "The occupying State shall be regarded only as an administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

(54.) Clagett & Johnson, "May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Resources of the Gulf of Suez," American Journal of International Law, vol. 72 (1978), 558, 566.

(55.) Hague Convention, preamble, fifth paragraph (emphasis added).

(56.) Cassese, 429-430, citing the holdings of several tribunals as support for a non-literal reading of the text. For an analysis of differing conclusions in this regard, see Dichter, 583.

(57.) Gerhard von Glahn, Law Among Nations, 7th ed., (Boston: Allyn & Bacon, 1995), 687.

(58.) Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary of the Law and Practice of Belligerent Occupation (Minneapolis: University of Minnesota Press, 1957), 177.

(59.) The often cited example of Israeli moves to tap previously unexploited Egyptian oil reserves in the Gulf of Suez during the final stages of Israel's occupation of the Sinai engendered the generally accepted response of the United States that a usufructuary's right to natural resources existed only to the extent that it matched previous rates of exploitation through projects already in existence at the time the usufruct began. United States Dept. of State Legal Advisor, Memorandum of Law, 1 October 1976, reprinted in International Legal Materials, vol. 16 (1977), 733, 736.

(60.) Dichter, 582.

(61.) See Note 55 and accompanying text.

(62.) The taking of movable water stores by the Israeli occupying forces would be insignificant in comparison with the taking of immovables.

(63.) Elmusa, Water Conflict, Chapt. 2; Abouali, 75-89; Dichter, 568-573; Sherman, Chapts. 2, 8.

(64.) For an analysis concluding the vast majority of water located beneath the West Bank constitutes private property, see Abouali, 85-86. This conclusion is also bolstered by the fact that any mubah property (communal property not owned by the state) might best be characterized as municipal property if not private. Under the Hague Regulations at Article 56, municipal property is accorded the same protections as private property.

(65.) Elmusa, Water Conflict, 252; Hisham Matar, "Exploitation of Land and Water Resources for Jewish Colonies in the Occupied Territories," in Playfair, 453. Any Israeli argument that "compensation" has been provided to the Palestinians through the relative increase in Palestinian water consumption (domestic use only) during the period of Israel's occupation fails to take into consideration the fact that Palestinians are charged for such consumption and that much of the development budget for the Occupied Territories is derived from international aid and not the Israeli budget. For a general discussion of Israel's financial administration in the West Bank and the notion of Israel's negative financial burden in this regard, see Hisham Jabr, "Financial Administration of the Israeli-Occupied West Bank," in Playfair, 394, citing Meron Benvenisti, West Bank Data Project: 1986 Report (Washington: American Enterprise Institute for Public Policy Research), 18.

(66.) Cassese, 432.

(67.) E.g., Yoram Dinstein, "The International Law of Belligerent Occupation and Human Rights," Israel Yearbook on Human Rights, vol. 8 (1978), 130-131. Dinstein argues that oil in a natural underground reservoir might constitute a movable property as does oil in an artificial container located above ground. Under Dinstein's rationale, it is clear that underground liquid resources may be converted into a movable property, much the same way that immovable forest can be hewn into movable timber. Nevertheless, the Hague Regulations maintain an express difference between movables and immovables based on the association of a valuable economic item to land as well as its state of being at the time the occupation began. Thus, the ability of an occupier to convert an immovable into a movable should not undermine the protections accorded the immovable property in the first instance.

(68.) Named after Eric Johnston, the special emissary under the Eisenhower administration sent to help the Jordan River basin states derive an acceptable framework for dividing shared waters as a prelude to peaceful coexistence among the Arab states and Israel, the Johnston plan suggested an allocation of the Jordan River that would include delivery of certain amounts of water to the West Bank as part of a plan to re-settle Palestinian refugees on the western and eastern sides of the river. Lowi, 82, 83, 93. Viewed in hindsight, the plan was arguably an attempt to derive allocations based on principles that would be contained within today's doctrine of equitable utilization. Although the plan was never officially accepted, Jordan and Israel abided by its general terms and allocations from 1956 to 1967. Id., 107. After 1967, Israel increased its extraction from the Jordan River system beyond the Johnston quotas, in part, on the basis of its control over the West Bank. Elmusa, Water Conflict, 303. Based on cal culating a percentage of the Johnston plan's rough allotment to Jordan through a comparison of the irrigable land located in both the West Bank and the East Bank, it has been estimated that the Palestinian share to the Jordan River should be about 215 million cubic meters (mcm)/year. Id., 232. See also Elmusa, Negotiating Water Israel and the Palestinians, Final Status Issues Paper (Washington: Institute for Palestine Studies 1996), 67-68.

(69.) Dinstein, 134, citing Lassa Oppenheim, International Law (7th ed. Hersch Lauterpacht) 1952, 403-404. Israel's activities in using some of the seized property for agricultural rather than military purposes appear to violate this norm.

(70.) See notes 53 through 59 and accompanying text.

(71.) Although Israel's advocates may argue that the normal use principle is adhered to as long as the riparian rights are used for irrigation purposes (albeit in a different location), the concept of normal use itself is rooted in the usufructuary notion of preserving the corpus of the property. See von Glahn Occupation of Enemy Territory, 177. The wholesale removal of the waters from the lands associated with the riparian rights is in a sense a destruction of the corpus of the property. Such destruction is akin to the destruction that would be associated with the wholesale felling of a state-owned forest, an activity clearly beyond the rights of a usufructuary, and distinct from the continued use of a coal mine, for example, at the same rate of extraction existing before the beginning of the occupation.

(72.) Abouali, 75-76.

(73.) See Note 51 and accompanying text.

(74.) See Note 43.

(75.) Meron Benvenisti, The West Bank Data Project, A Survey of Israel's Policies, (Washington: American Enterprise Institute for Public Policy Research 1984), 14. While acknowledging that water supplies to Palestinians have been allowed to increase by over 20 percent since 1967, Benvenisti notes that significant population increases and greater needs for development make such an increase insufficient.

(76.) Dichter, 581.

(77.) Eyal Benvenisiti, Occupation Law, 129.

(78.) Fritz Kalshoven, "State Responsibility for Warlike Acts of the Armed Forces," International and Comparative Law Quarterly, vol. 40, (October 1991), 827. Under US case law, Article 3 has been held not to provide a basis for individual claimants seeking damages from the US Government arising from the US invasion of Panama. These holdings however, do not necessarily undermine the obligations that a state may face to provide compensation through diplomatic or legislative means. See Jacques Semmelman "International Decisions, Sovereign Immunity [and other concepts...] Arising Out of the Invasion of Panama," American Journal of International Law, vol. 87 (1993), 288,290.

(79.) Kalshoven, 837.

(80.) Draft Articles on State Responsibility, International Law Commission, Draft Art. 1 (state responsibility), Draft Art. 41 (cessation of wrongful conduct), Draft Art. 42 (reparation), Draft Art. 43 (restitution in kind), Draft Art. 44 (compensation). See International Law Commission Report, 1996, Chapter III, State Responsibility, available online at www.un.org/law/ilc/reports/ 1996/chap03.htmdoc38.

(81.) Commentary on Draft Articles on State Responsibility adopted by the International Law Commission on First Reading, Art. 1, available online at www.law.cam.ac/UK/ILCSR/arts.htm. The commentary to Article 1 establishes the customary law of state responsibility through a lengthy analysis of state practice and judicial decisions, including seminal determinations by the International Court of Justice. Similar commentary is provided as background to Article 44 concerning compensation.

(82.) Draft Articles on State Responsibility, Art. 44.

(83.) von Glahn, Law Among Nations, 304. UN Charter Art. 2.4.

(84.) von Glahn, 304, discussing ongoing disputes between Russia and Japan (Kurile Islands); Chad and Libya (Aouzous Strip border region); Indonesia -- East Timor (self-determination for East Timor); Israeli-Palestinian dispute (status of East Jerusalem); and Israel-Syria (Golan Heights). It is interesting to note that international pressure through non-recognition of an annexation has led to ongoing discussions in each of these disputes, and that resolution is perhaps near in many of them, with East Timor serving as a current example.

(85.) Israel did not become a UN member state until 11 May 1949, at which time it was clearly obliged to abide by Article 2.4 of the UN Charter. Arguably, Israel's actions prior to becoming a member state, however, would still be restricted indirectly through the requirement under UN Charter, Article 2.6 that the United Nations ensure that states which are not members act in accordance with the principles of Article 2.

(86.) The traditional view is that the acceptance of the international lawfulness of an expropriation of alien property is conditioned upon the obligation to make compensation. Ben Wortley, Expropriation in Public International Law, (New York: Arno Press 1977), 83. See also Richard Lillich, ed., The Valuation of Nationalized Property in International Law (Charlottesville: The University Press of Virginia 1972), xi, stating in his preface that the right to compensation in an expropriation is generally accepted, although questions arise as to the appropriate valuation of such compensation.

(87.) Eya! Bevenisti and Eyal Zamir, "Private Claims to Property Rights in the Future Israeli-Palestinian Settlement," American Journal of International Law, vol. 89, no. 2 (April 1995), 295, 326.

(88.) GA Res. 194 (III). Palestine-Progress Report of the United Nations Mediator, 3 UN GAOR, Resolution, 21-25, UN Doc. A/810 (1948) reprinted in, John Moore, ed., 3 The Arab-Israeli Conflict (Princeton University Press: Princeton 1974), 373.

(89.) Id. Note that the statement, referencing principles of international law and equity, serves as a basis for demonstrating an obligation under international law for the compensation of property lost as a result of conquest. It is also important to note that although Resolution 194 was initially rejected by Arab states due to its implied acceptance of the State of Israel, the resolution now serves as the basis for recent Palestinian claims to compensation. Sydney Bailey, How Wars End, vol. 2 (Clarendon Press: Oxford 1982), 234.

(90.) See e.g., UN General Assembly Resolution 53/46, 3 December 1998.

(91.) Treaty of Peace, Friendship, Limits and Settlement between the United States and Mexico; signed at Guadeloupe Hidalgo, 2 February 1848; entered into force 30 May 1848, Article XII. 9 Stat 922; TS207; 9 Bevans 791. Also available online at www.yale.edu/lawweb/avalon/diplomacy/guadhida.htm.

(92.) Nicholas Balabkins, West German Reparations to Israel, (New Brunswick: Rutgers University Press 1971), 155. Balabkins points out that the Shilumim Agreement, unlike a reparation agreement, did not involve coercion of a defeated nation, but instead a voluntary payment between two governments that had never been at odds with one another. Id., 151. The German payments to Israel also provide a precedent in the international arena for payments to a state coming into existence subsequent to the damages giving rise to compensation. Wortley, 64.

(93.) See generally, Nell Jessup Newton, "Compensation, Reparations & Restitution: Indian Property Claims in the United States," Georgia Law Review, (vol. 28, no. 2, winter 1994), 453,459.

(94.) Id., 468.

(95.) See Note 34.

(96.) Elmusa, Water Conflict, 81-82, contradicting the common Israeli assertion that only Jews used springs and wells for irrigation. Employing a comparison of irrigated areas as a proxy for actual water consumption where the latter is impossible to calculate, Elmusa notes that while Arabs and Jews irrigated similar amounts of land for orange groves, Arabs irrigated nearly three times more land than Jews for vegetables. Id.

(97.) Benvenisti and Zamir note that requiring a state to concede its aggression in a reparations context makes it more difficult to proceed in all but the clearest cases of aggression and absolute defeat, such as in World War II or Iraq's invasion of Kuwait. Benvenisti and Zamir, 319.

(98.) See Note 2l.

(99.) According to the Interim Agreement, Israel is to provide 4.5 million cubic meters ("mcm") of water per year to the West Bank areas of Hebron/Khaleel, Bethlehem, Ramallah and Nablus and 5 mcm/year to Gaza. Interim Agreement, Annex III, Article 40, Principle 7. The agreement does not specify where this water must come from, but for at least the near future it can be presumed to come from the highly integrated Israeli water system.

(100.) Abouali, 108-110; Elmusa, Water Conflict, 359.

(101.) Determining value of expropriated property under international law has always been problematic. Roger Smith, "Real Property Valuation for Foreign Wealth Deprivations," in The Valuation of Nationalized Property in International Law, ed. Richard Lillich (Charlottesville: The University Press of Virginia 1977), 133. Generally, economists recognize three approaches in measuring value in the context of a taking: the value to the taker, the value to the owner and market value. Among the evidence that might be used in deriving value are indicators of (i) sales of similar property in the vicinity, (ii) the original purchase price of the property, (iii) imputed rental value, (iv) assessment for tax purposes, (v) replacement cost (to either the expropriator or the individual expropriated from), (vi) amount of insurance on property, and/or (vii) offers to purchase the property. Id., 167. For a discussion of valuing water in the present context through replacement costs to Israel, see Thomas Stauffer, "Water and War in the Middle East: The Hydraulic Parameters of Conflict," Information Paper No. 5 (Washington, DC: The Center for Policy Analysis on Palestine 1996), 12.

(102.) Gerald Gaus, "Does Compensation Restore Equality," in Compensatory Justice, ed. John Chapman (New York: New York University Press 1991), 60-74.

(103.) As noted earlier, discussion of Israel's actions through a bifurcated approach involving compensation for wrongs and compensation for a taking of Palestinian rights is thus necessary in analyzing amounts of compensation owed.

(104.) The rental concept provides a variety of benefits to both Israel and the future Palestinian State. For Israel, the benefit is the prospective legitimization of the settlements' water use under a system that is more likely to vest the Palestinians in the existence of the settlements. Providing the Palestinians a financial stake in the settlements is preferable to accepting the simmering resentment existing today and certainly to exist in the event that the settlements are ceded to Israel, regardless of the amount of any lump sum negotiated. The rental concept obviously applies to the settlements on a broader basis than simply that concerning water. As a further note, the rental basis might even be used to address the situation involving water and land conquered by Israel prior to 1967. For the sake of making a final agreement palatable to Palestinians who refuse to accept the concession of territory taken in 1948, Palestinian negotiators may choose not to concede sovereignty while at the same time agre eing with Israel not to attempt to effect such sovereignty in return for the payment by Israel of "rent." As the property and resources at issue have provided an underpinning to the Israeli gross domestic product, an annual payment figure might be linked to a reasonable percentage of Israeli annual GDP. While certainly a novel approach likely to raise at least eyebrows on both sides of the negotiating table, such a result would again serve the purpose of vesting the Palestinians in "peace" after the conclusion of the "process" and provide a formal mechanism both for ensuring the existence of Israel's peace dividend (the savings obtained by Israel in the likely downsizing of its national defense and security expenditures as a result of peace) and a formal means of sharing the dividend with the Palestinians. Linking the rental payment to GDP provides a continuing rationale for both parties to remain at peace. As Israel's economy is likely to perform better within a context of regional stability, it would be in the Palestinian State's direct interest to act in a matter that would enhance a "peace bonus" rather than jeopardize it. This approach might also appeal to third party donor countries, such as the United States, which could readily accept the notion of Israel's annual payments in lieu of Israel's demands for outside funds to solve the Palestinian problem. Although the ongoing nature of the payments admittedly strays from the obvious Israeli desire to end the Palestinian problem with finality, it may be that standard notions of finality are not possible in the Israeli-Palestinian context, and that more flexible and ambiguous approaches are, in the end, more likely to be workable.

(105.) Arnon Soffer, Rivers of Fire (Rowman & Littlefield Publishers: Boston 1999), 194.

(106.) E.g., Abouali, 104.

(107.) Benvenisti & Gvirtzman, 556.

(108.) Id.

(109.) Soffer, 194. Although Soffer suggests that the green line border between Israel and a Palestinian state would need to shift eastward to place the western aquifer wholly in Israel, such a result is not necessary if Palestinians provide Israel with a means of guaranteeing Israel's sole use. Moreover, under this analysis if the green line were shifted eastward in one area for Israel's sake to protect the western aquifer, it would have to be shifted westward in the Jerusalem area to protect the eastern aquifer for the Palestinians. It is unlikely that Israel would concede to a shifting of borders around Jerusalem solely for the sake of protecting Palestinian water.

(110.) According to the Annex III, Schedule 10 of the Interim Agreement, of the 679 mcm/year recharge in the mountain aquifer, 317 mcm/year are available in northern and eastern aquifers. The Interim Agreement presumes, however, the existence of roughly 80 mcm/year of previously untapped resources in the eastern aquifer. However, these waters, according to Elmusa, have been discovered to be brackish and may be difficult to collect and put to use. Elmusa, Water Conflict, 41.

(111.) One framework for implementing a mandatory sale of Palestinian water resources might be based on an agreement by the Palestinians to sell to Israelis at market rates any water beyond the minimum amount needed by Palestinians to the extent that such amount is needed to meet minimum Israeli needs. For a discussion of how the "minimum water requirement" might apply in a regional context, see Hillel Shuval, "Proposed Principles and Methodology for Equitable Allocation of Water Resources Shared by the Israelis, Palestinians, Jordanians and Syrians," in Water and Peace in the Middle East, eds. Jad Isaac and Hillel Shuval (Amsterdam: Elsevier 1994), 481, 487.

(112.) Benvenisti and Zamir, 321-329.

(113.) Id. citing mass movements of population in settling disputes in Europe at the end of both World Wars and in the context of the Hindu-Muslim conflict in India/Pakistan in 1947.

(114.) Since 1970, the United States has restored more than 540,000 acres of public domain lands to various indigenous American Indian tribes. Newton, 477. For discussion of developments in Canada and Australia, see Richard Bartlett, "Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia," Western Australian Law Review, vol. 20 (1990), 453, 479-486.

(115.) Newton, 455.

(116.) See notes 105 through 110.

(117.) See Note 9 and accompanying text for a discussion of communal interests in an international water law context.

(118.) The Interim Agreement presently provides for joint administration of the entire Mountain Aquifer (regardless of the flow of each of its three subcomponents) while providing for no Palestinian involvement in the administration of the Jordan River or the Coastal Aquifer.
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Author:El-Hindi, Jamal Laurence
Publication:Arab Studies Quarterly (ASQ)
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Date:Mar 22, 2000
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