Thirty-eighth session
Agenda item 75
ISRAEL'S DECISION TO BUILD A CANAL LINKING THE
MEDITERRANEAN SEA TO THE DEAD DEA
Report of the Secretary-General
1. This report is submitted in pursuance of General Assembly resolution 37/122 of
16 December 1982 entitled "Israel's decision to build a canal linking the Mediterranean Sea to the Dead Sea", the operative part of which reads as follows:
"The General Assembly,
…
2. It will be recalled that, pursuant to an earlier resolution of the General Assembly (36/150), three United Nations experts visited Israel and Jordan in the latter part of May 1982. Following these visits, the experts prepared a study, which was annexed to the report submitted by the Secretary-General on 30 June 1982 to the General Assembly and the Security Council (A/37/328-S/15277).
3. The environmental aspects of the Israeli project were further examined in a study prepared under the auspices of the United Nations Environment Programme in pursuance to a resolution adopted by the Governing Council of UNEP on 18 May 1982. That study is contained in a report submitted by the Executive Director of UNEP to the Governing Council on 23 February 1983 (UNEP/GC.11/3/Add.4 and Supplement of 8 April 1983).
4. On 29 March 1983, the Under-Secretary-General of the Department of Technical Co-operation for Development addressed letters to the Permanent Representatives of Israel and Jordan. Referring to the report of the Secretary-General mentioned in paragraph 2 above, he requested such further information as may be relevant in light of the provisions of General Assembly resolution 37/122.
5. In a note verbale dated 23 May 1983, the Permanent Mission of Israel replied that no new substantive information had come to light since the visit of the group of experts in 1982.
6. Meanwhile, on 19 May 1983, the Under-Secretary-General addressed further letters to the Permanent Representatives of Israel and Jordan in which he stated that he had asked a small team of experts to assist in the preparation of the report requested of the Secretary-General under resolution 37/122 and, in particular, to travel to the area to gather pertinent information in light of the provisions of the resolution. He requested their Governments, as in the preceding year, to provide the team with access to sites that they might need to visit and to arrange contacts they might require with the officials directly concerned.
7. In a letter dated 26 May 1983, the Permanent Representative of Jordan replied that his Government would be glad to receive the team and would provide it with all available information and would extend to it all possible assistance to enable it to discharge its investigations in an efficient manner.
8. In a letter dated 27 May 1983, the Permanent Representative of Israel replied that since the visit in the preceding year of a similarly authorized United Nations team of experts there had been no additional developments in the areas subject to professional clarifications between United Nations authorized experts and those of Israel. To avert an unproductive and inconclusive meeting between the experts of Israel and the team proposed by the United Nations, his Government sought detailed clarifications on the following points:
9. In his reply, dated 9 June 1983, the Under-Secretary-General referred to the scope of resolution 37/122 and stated that he felt that certain aspects could still receive expanded treatment in the report which the Secretary-General had been asked to prepare. With respect to the three points on which the Permanent Representative of Israel had requested clarifications, the Under-Secretary-General noted that the terms of reference of the team of experts were embodied in the text of resolution 37/122, and that the objective of the mission would be to try to provide information additional to that made available the previous year. With respect to the other two points, he expressed the hope that the mission could seek answers to these questions during its visit to Amman.
10. In a letter dated 20 June 1983, the Permanent Representative of Israel responded that the proposed meeting between United Nations and Israeli experts might prove both unproductive and inconclusive. There might be room for further examination of the matter, he wrote, if and when specific professional clarifications were presented by the Government of Jordan.
11. From 28 June to 6 July 1983, four United Nations experts travelled to Jordan and held discussions with Government officials and others concerned. They visited various areas on the Dead Sea, particularly the potash works at its southern end.
12. The report prepared by the experts is annexed to the present report.
ANNEX
Report of the experts
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I. II. III. IV. V. VI. VII. VIII. |
INTRODUCTION LEGAL DIMENSIONS IMPACTS ON POTASH PRODUCTION IMPACTS ON AGRICULTURE IMPACTS ON SETTLEMENTS IMPACTS ON INFRASTRUCTURE, RECREATION AND HEALTH CARE FACILITIES, AND ARCHAEOLOGICAL SITES ENVIRONMENTAL CONCERNS OBSERVATIONS |
1 – 2 3 – 17 18 – 33 34 – 38 39 – 41 42 – 46 47 – 49 50 – 54 |
7 7 11 16 17 18 19 20 |
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Appendix. List of persons who met with the mission |
24 |
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I. INTRODUCTION
1. In the light of General Assembly resolution 37/122, the mission tried to adopt a broad perspective in its investigations. Inevitably, limitations of time and data availability made a comprehensive evaluation impossible. The mission took into account the findings of the 1982 report by the earlier consultant mission (A/37/328 and Corr.1-S/15277 and Corr.1, annex) in its discussions with Jordanian authorities, and to the extent possible tried to integrate the information gathered last year. It is believed that the results of the investigations undertaken by the mission do help to shed light on the nature, magnitude and significance of several potential impacts, and that they indicate more clearly the kinds of studies that need to be carried out if a full appreciation of such consequences is to be attained.
2. The principle features of the Israeli project have already been indicated in the report of the 1982 mission (ibid.). The present report deals successively with legal questions, potential impacts on potash production, agriculture, settlements, and on infrastructure, recreational and health care facilities, and archaeological sites; and a number of environmental concerns. It concludes with a number of observations.
II. LEGAL DIMENSIONS
3. It is a fundamental principle of international law that a State has the unfettered right to perform acts in its own territory which do not have an effect outside that territory. However, in the case of the Israeli Mediterranean-Dead Sea Project, the proposed operations (a) are not to be carried out solely in Israeli territory and (b) would have effects in territory not belonging to Israel. The legal dimensions of the question, must, therefore, be examined within these parameters.
A. Acts Performed in an Occupied Territory –
The Law of Belligerent Occupation
4. Important components of the Israeli project, i.e. the intake system and "rectangular canal", underground pumping-station and approximately seven kilometres of pressure pipe, are to be located in the Gaza Strip, a territory at present under belligerent occupation. A belligerent occupation has no rights of sovereignty in an occupied territory. Its authority is limited to transitional and temporary powers of a purely military and administrative nature.a/
5. It does not have the right to treat occupied territory as its own or to make changes in the territory beyond those necessitated by the immediate needs of the occupation. Resources of the occupied territory are only to be used for (a) expenses of administering the territory, (b) military needs of the army of occupation, and (c) direct benefit of the indigenous inhabitants.b/
6. The rights of a belligerent occupation with respect to property in an occupied territory are primarily governed by the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention No. IV of 18 October 1907.c/ These Hague regulations are universally recognized as stating the general international law on the subject and as being binding on all States, whether or not they are parties to the Convention. Private property cannot be confiscated (art. 46) and may only be requisitioned for the needs of the army of occupation (art. 52). Considering these limitations, it is difficult to see how privately-owned lands in the Gaza Strip could be legally used for the purposes of the Israeli project. The same applies to lands owned by municipalities which are to be treated as private property (arts. 52 and 56).
7. With respect to State-owned property, an occupying State is only an administrator and usufructuary of public lands. It must safeguard the capital of such properties and administer them in accordance with the rules of usufruct (art. 55). A usufructuary, who is in a sense a tenant, in principle, may use the property but without detriment to its substance. He is entitled to the fruits but not the capital itself. Some national codes expressly provide that a usufructuary must use the property in the state in which he has received it and according to the object for which it was intended or in the customary manner.d/ Applying the rules of usufruct to a belligerent occupant, it has been said that it is not permissible to exploit immovable property beyond normal use e/ or to permanently alienate public resources.f/
8. The application of article 55 has been the subject of considerable discussion particularly with respect to mineral resources.g/ There is less material directly relevant to the present project. On the one hand, it might be argued that since most of the installation will be underground and the surface in time will be restored to its original conditions, there will be no impairment of capital.h/
9. On the other hand, a State's title in land is not limited to the surface but extends to the subsoil as well. It would be difficult to reconcile the use of public land for a permanent installation with the limited authority of an occupant provided by article 55. It is even more difficult when the purpose of the installation is the improvement of the home economy of the occupant and has nothing to do with the needs of the occupation.i/ The difficulty is further compounded when such permanent installation is of a character requiring continuous supervision and maintenance.
B. Effects in the territory of others
10. The Israeli Mediterranean-Dead Sea project would have effects in Jordan and the Occupied West Bank. The Dead Sea into which the proposed canal would empty, is a shared natural resource and only approximately one fourth of its shoreline and waters are in Israel. The remaining three-fourths belong to Jordan and the West Bank (see fig. 1). The question of the rights of riparians, therefore, arises.
11. There is a fundamental principle of law that one must use his own property so as to do no injury to another, usually expressed by the Roman maxim sic utere tua ut alienum non laedas.j/ This principle has found expression in international instruments practice and adjudication and can be said to be part of international law relating to the fundamental rights and duties of States.k/
12. While often stated in absolute terms,l/ recent formulations – particularly in the context of water resource development – have distinguished between slight or minor damage on the one hand and substantial, significant, material or major damage on the other.m/ The line between the two and the criteria for drawing it are not easy to find. The term "appreciable" damage has found special favour and would now seem to be the prevailing criterion.n/ It is more flexible and less demanding than "substantial" and something more than "de minimis". Under this approach, but sometimes with certain exceptions, the consent of interested States in a shared resource would be required before a project expected to cause appreciable damage in their territory might be carried out.
13. The International Law Commission is currently engaged in the codification and progressive development of the international law relating to the non-navigational uses of international watercourses. While it has not yet reached definitive conclusions, note may be taken of article 9 in the latest Special Rapporteur's report (A/CN.4/367). This article reads as follows:
14. Mr. Jens Evensen, the Special Rapporteur, in his comment to this article, states that the principle laid down in the article is a "basic rule of international law pertaining to international watercourse systems" and thus "a codification of a prevailing international law principle".n/
15. In the following chapter of his report, the Special Rapporteur suggests principles and procedures for co-operation and management in regard to international watercourse systems, including provisions for notification in cases of projects which may cause appreciable harm, time-limits for reply, and consultations and negotiations in order to verify and determine the harm. If a State does not reply to a notification within the time-limits provided, then the notifying State may proceed with the project. Failure to object could be taken as acquiescence, although this is not stated.
16. The test of "appreciable" damage and procedures of notification and consultation similar to those outlined in the preceding paragraph have been particularly proposed in the context of a watercourse system where the "unity" of the system is emphasized. There might seem to be reason to apply more stringent standards to a proposing State when water is to be introduced from outside the system. It may be argued that in such circumstances consent of an interested State is required if there are to be any effects, excepting perhaps
de minimus, within its territory of the shared resource.
17. The following sections examine the nature and possible magnitude of the effects that the Israeli-Mediterranean Dead Sea project would have on Jordan and the West Bank.
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Figure 1: Route of project
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III. IMPACTS ON POTASH PRODUCTION
18. The largest single impact on Jordan of the proposed project is likely to be that associated with the inundation of the production facilities of the Arab Potash Company at Safi at the southern end of the Dead Sea. These facilities, costing an estimated $US 450 million, have been in operation since September 1982.o/ Production has now reached a total of about 500,000 tons per annum and will amount to 1.2 million tons per annum when full capacity is attained.
19. Potash mining ranks as the most important industry in Jordan, contributing 20 per cent of the value of the commodity exports and 60 per cent of the revenues obtained from the mining sector. (The remaining 40 per cent of the revenues are obtained from phosphate.) Any stoppage or reduction in potash production would have an important bearing on the national economy as well as the planned development of an integrated chemical industry. The goal set in the five-year plan of Jordan is to increase income from the mining and manufacturing sector to $US 1 billion in 1985.p/
20. The rise of the water level to -390 metres above mean sea level (m MSL) as a result of the diversion scheme would cause flooding of the brine intake pump-station, the brine canal from the Dead Sea to the salt pan, where the first precipitation starts (crystallization of sodium chloride), carnallite pans (for crystallization of potassium and magnesium chloride), dikes around the salt pan and carnallite pans, brine transfer stations, and the flood channel as shown in figure 2.q/ A more detailed display appears in figure 3.
21. To maintain production, therefore, according to the Arab Potash Company authorities, it would be necessary to build a completely new brine system and to raise the crest levels of about 60 km of dikes. The cost of building this system with deeper intake facilities is estimated at $US 50 million.
22. According to the Arab Potash Company, the crest levels of dikes 1 and 2 will, under existing conditions, have to be raised approximately 3 m every 10 years due to 20-30 cm sodium chloride accumulation per year in the salt pan. The present crest levels will be adequate until 1990, at which time an increase of about 3 m is planned.r/ An accumulation of sodium chloride will also occur in pan PC-1 but at a much slower rate than in the salt pan (about 10 cm per year). Present dike crest levels will be adequate until the year 2000 when only dike 5 will need to be raised about 1 m. It will be necessary, therefore, to raise dikes 1 and 2 by 5 to 6 m for a distance of about 15 km, and dike 5 about 1 m for a distance of 5 km by the year 2000 due to accumulation of salt in the salt pan and carnallite pan PC-1.
23. If the Mediterranean-Dead Sea project were built, all the dikes would have to be raised by the year 2003 to the -390 m MSL level. This would involve the raising of crest level of dikes 1 and 2 to -390 m MSL by the year 2003 instead of the year 2016, which is the year at which this crest level would other wise be required if there were no inflow of water from the Mediterranean. According to the Arab Potash Company (see figure 4), dikes 4, 5 and 6 would also have to be raised in the year 2003 as opposed to the originally envisaged year 2074 for the same reason. It may be noted that dikes 1 and 2 would need to be raised by 2 m over a total length of 15 km, dike 5 by 6 m over 8 km; all other dikes by 7 m over a total length of 37 km (see figure 3). The estimated cost of raising the level of the dikes is about $140 million, as indicated in the report of the 1982 mission.s/
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Figure 2: Arab Potash plant
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Figure 3: Detailed layout of Arab Potash plant
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Figure 4: Crest level required for all perimeter dikes
if Mediterranean-Dead Sea project is built
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24. Jordanian experts have expressed concern that the inflow of Mediterranean water would reduce the salinity and would change the characteristics and chemical composition of the Dead Sea. If the salinity were reduced, the cycle of precipitation of sodium chloride, magnesium chloride and potassium chloride would be changed, more volume of brine would need to be pumped, and the brine intake would have to be from levels 40 to 50 m deeper, where composition and concentration of the brine would not be greatly affected by the mixing. According to the Arab Potash Company, there would be a reduction of about 15 per cent in the production of potash from the plant.
25. As a result of mixing Mediterranean and Dead Sea brines, calcium sulphate and calcium carbonate precipitation described as "whitening" may occur. According to Jordanian authorities this would reduce evaporation rates and cause alteration of the water balance, possibly leading to a curtailment of production. The degree to which whitening, if it were to take place, would affect the evaporation rate and production cannot yet be determined; considerably more information is needed to evaluate the effect of "whitening".t/
26. Other possible effects of the project, according to the Arab Potash Company, would be as follows:
(a) As the proposed Dead Sea level would be higher than the carnallite production pans, the waste bitterns could not be discharged by gravity; instead pumping-stations would be required at each pan;
(b) The possible precipitation of sodium chloride in the Truce Line waste channel might block it, affecting the potash operations on both sides. Mediterranean brine could be used to flush the waste channel to avoid sodium chloride deposition, but continuous exposure to Mediterranean brine might undermine the dikes, causing damage;
(c) Unpredicted meteorological conditions might cause an unexpected overflow of rain leading to flooding, damage or a collapse of the dikes.
27. The Arab potash project has been in operation since September 1982 and the Jordanian Government is now considering new projects to be integrated with potash production. According to the five-year plan of Jordan, the most important of these projects is doubling the capacity of the existing potash mine. A comprehensive study is currently being conducted.
28. Other projects under consideration by the Jordanian Government include the production of bromine and its derivatives, magnesium oxide and refractory bricks, table salt, potassium sulphate, dicalcium phosphate, soda ash, and nitrogen, phosphate and potassium fertilizers.
29. Some of these projects are in the pre-feasibility stage, while feasibility studies for others have been completed. Most of the projects are included in the five-year plan for economic and social development of Jordan.
30. Implementation of the Mediterranean-Dead Sea project could affect the selection of sites for the above-mentioned projects and would have implications for the feasibility studies. Final conclusions on feasibility cannot be reached based on unknown or changeable factors resulting from the Mediterranean-Dead Sea project.
31. In summary, the Jordanian authorities informed the mission that the proposed Mediterranean-Dead Sea project could result in major adverse effects on the Arab Potash works at Safi, measured both in damage to physical plant and loss of production. Not only would reconstruction be expensive but also loss of output of the potash works would be serious for the Jordanian economy, and would limit the development of an integrated chemical industry now being planned by the Jordanian Government.
32. While the mission was able to identify and estimate the likely physical impacts with some confidence, it was less confident about a number of other key aspects, notably the effects of the introduction of water from the Mediterranean Sea on the chemical composition of the Dead Sea. This is a matter on which there is a need for much more detailed investigation.
33. Regardless of whether the project is undertaken, consideration should be given to the maintenance of an optimum level of the Dead Sea for potash and other mining purposes. There is an enormous potential for production from the brine that is available in the sea, estimated at over 2 billion tons of potassium chloride alone. Officials of the Arab Potash Company and others in the mining industry in Jordan emphasized the importance of maintaining the level of the Dead Sea at -401 m MSL.
IV. IMPACTS ON AGRICULTURE
34. Agriculture accounts for 14 per cent of Jordan's gross domestic product and 22.6 per cent of the nation's exports.u/ It has also been noted that substantial progress has been made in recent years in increasing the amount of land under cultivation and in raising productivity, particularly through the adoption of sophisticated techniques of irrigation and water conservation.
35. From information provided to the 1983 mission it appears that the overall impact of inundation from the proposed diversion scheme would be relatively small, either with respect to existing development or that planned for the future. The total land area at present under irrigation in Jordan amounts to some 38,000 hectares. The 1982 mission had already estimated that the raising of the Dead Sea level could affect some 330 hectares on the eastern shore of the Sea, principally in Ghor Safi and near Mazra to the southeast of the Dead Sea. Damage would be sustained in part by developments that are located partially within the area below -390 m MSL and in part by those which would suffer from salt water
intrusion and drainage problems beyond that zone. The 1982 mission, however, was unable to provide an estimate of the value of the losses within and beyond the inundated area.
36. The 1982 mission also noted that there would be flooding in the area to the northwest of the Dead Sea, namely, in the Jordan Valley, which has been developed in part by irrigated agriculture sustained by water from the East Ghor Canal. The 1982 mission, however, was unable to establish the extent of potential inundation or determine its likely impacts on production or income.
37. The 1983 mission faced many of the same difficulties as its predecessor, particularly through the lack of information readily available in a form that would indicate precisely the farmlands that would be inundated or otherwise affected, and the type and value of income derived therefrom. It is evident, however, from maps and other data furnished by the Jordan Valley Authority that production capabilities of land in the area liable to be flooded are limited. Most of it is in Class 6, the lowest of all the categories used in the Jordanian agricultural land classification. Moreover, it was pointed out by officials of the Authority that, since there is insufficient water to service all the potentially irrigable land, attention is more likely to be paid to the most productive categories,
leaving marginal lands undeveloped.
38. In summary, the 1983 mission accepted the estimate of the 1982 mission that some 330 hectares would be inundated in the southern region. Its own investigations suggested that in addition some 100 hectares may be inundated in the northern area, and another 200 hectares affected by seepage and drainage problems.
V. IMPACTS ON SETTLEMENTS
39. The flooding that would accompany the completion of the project would result inevitably in the displacement of people from their homes and/or work places. The major impacts in this connection would be on farm settlements, principally at the southern end of the Dead Sea, notably in the Ghor Safi and Mazra areas, and to a more limited extent along the north-east shore. Based on preliminary surveys undertaken by the mission, it is estimated that some 600 individuals would have to move from existing farm settlements and additional numbers would be displaced from lands that are now being settled or are planned for development in the near future.
40. Other possible displacements would occur in the Safi area where the Arab Potash Works are located. Depending upon assumptions as to the ability of the works to withstand various increases in the level of the Dead Sea, a number of individuals might lose their jobs, at least temporarily. The mission was told by Jordanian officials that as many as 1,000 workers might have to be relocated. As far as the mission was able to determine, most, if not all, of the workers at present live outside the area that would be flooded. The town that has been built to house the workers, in particular, is well above the flood line.
41. Displacement of workers elsewhere in the Dead Sea area is likely to be minor.
It is possible that operators of parks and recreational areas would be displaced.
These, however, are few in number. In addition, inhabitants of health care
facilities, notably at Swameh would have to be moved elsewhere. No estimate of the
numbers involved is available.
VI. IMPACTS ON INFRASTRUCTURE, RECREATION AND HEALTH
CARE FACILITIES, AND ARCHAEOLOGICAL SITES
42. Rising levels of the Dead Sea would adversely affect some parts of the infrastructure, as well as recreation and health care facilities and archaeological sites. Particularly important would be the inundation of parts of the road along the Jordanian shore of the Dead Sea. This is a major communications artery, linking northern Jordan with the south, and serving the economic needs of the Jordan Valley, the Dead Sea region and the Araba and Aqaba Valleys. Information provided by the Jordanian authorities indicates that the road would be inundated, and that some 3.5 km of highway would have to be relocated. In some instances, such relocation is likely to be extremely expensive because tunnelling and bridge construction would be required. No estimates of costs of reconstruction are at
present available, nor is there any information on the volume of traffic that would be affected by the severing of this communications corridor.
43. A number of existing or planned sites along the eastern shore of the Dead Sea would also be inundated. These are located mostly in the north-eastern part of the region. No precise figures are available as to the likely effects at each individual site, such as costs of facilities, the number of visitors, or expenditures of the latter on goods and services at the sites.
44. There are plans for the construction of a number of health care facilities on the eastern shore of the Dead Sea. One scheme, which Jordanian authorities state is scheduled for construction in the near future, is estimated to cost over $US 80 million. It would be exposed to inundation. No figures, however, are available as to costs of relocation, the value of income that would be lost, or the number of individuals that would be displaced.
45. It is probable that a number of archaeological sites would be inundated by rising Dead Sea levels. This possibility was pointed out by the 1982 mission, but little information was available as to the location or the significance of the sites. This deficiency still prevails. However, the leader of a Harvard University archaeological team, which is at present exploring in the Safi area, indicated that there are at least four sites in that region, involving settlements and burial grounds dating back as far as 600 B.C. Of these, a Napotean fort with large farms and extensive water control works was regarded as especially significant.
46. The lack of information about impacts on infrastructure, recreation sites, health care facilities and archaeological sites highlighted a major difficulty in appraising the likely effects of inundation. Not only are data on locations and physical impacts sparse, but information on costs, values, and alternative opportunities are generally non-existent. The absence of such information precludes a full assessment of impacts which may affect the overall functioning of the Jordanian economy or the preservation of irreplaceable assets which have values not readily expressed in economic terms.
VII. ENVIRONMENTAL CONCERNS
47. Jordanian authorities expressed serious concern to the mission about several potential adverse environmental consequences. These were also referred to in the report of the Executive Director of UNEP (UNEP/GC.11/3/Add.4 and Supplement). Four were mentioned in particular, namely:
The Jordanian officials were also apprehensive about two other possible sources of environmental disruption, namely:
48. Each of these matters is considered either in the report of the 1982 mission (A/37/328-S/15277, annex) or that of the Executive Director of the United Nations Environment Programme (UNEP/GC.11/3/Add.4 and Supplement). Some, notably those concerning the effects of introduction of Mediterranean waters on the chemical composition of the Dead Sea, and possibilities of salt water intrusion into aquifers in the region, have been referred to earlier in this report. It was evident, however, from discussions with various individuals in Government agencies and in the private sector in Jordan that there is considerable debate in the local scientific community as to the nature and likely magnitude of such effects. In some cases, studies have produced highly conflicting evidence.
49. Inability to identify and quantify precisely environmental impacts should not be taken to indicate that such effects are unimportant. In many ways the Dead Sea is a unique natural resource with an alleged "lifelessness" that limits the range of species of biota that are supported by it. There are fears that the introduction of sea water from the Mediterranean may destroy this delicate ecological balance. The general conclusion reached by the mission was that not enough is known about a number of potential environmental impacts to permit a clear appraisal.
VIII. OBSERVATIONS
50. From the evidence available to the 1982 mission it appears that the Israeli proposal to divert water from the Mediterranean Sea into the Dead Sea is, from a strictly technical point of view, feasible. Given engineering techniques already available, safeguards could probably be built into the project to minimize the risk of rupture of the conduit through seismic activity, and consequent leakage into aquifers through which the pipeline would pass.
51. However, in so far as the proposed route crosses the Gaza Strip, which is currently occupied territory, well-established principles of international law relating to belligerent occupation would be applicable. Specifically, a permanent installation constructed in occupied territory for the benefit of the home economy of the occupying State would encounter what has been described in another case involving the use of occupied territory as "unsurmountable legal obstacles".v/
52. The mission is also of the view that at least with respect to its vital potash industry, Jordan would suffer appreciable harm if the Israeli project were put into operation. It would seem that, under prevailing legal views, Jordan's consent would be an essential pre-condition for implementation of the project.
53. Losses in other sectors appear very difficult to assess except in broad qualitative terms. A full evaluation of the likely consequences awaits more profound investigation and, in some cases, the results of research either ongoing or yet to be undertaken. Specific attention is drawn to uncertainties relating to such matters as the potential effects of the mixing of the waters of the Mediterranean with those of the Dead Sea and impacts on agriculture.
54. Finally, the mission concludes that the optimum use of the resources of the Dead Sea is likely to be attained only with a broadening of perspective. Thus far political realities have focused attention upon single purposes, individual projects and independent development. Proponents have been concerned principally with the benefits they would receive and opponents have drawn attention mostly to the losses they would sustain. A broader approach would make possible a much higher level of use and the net gains of each co-riparian would be much greater than is likely to result from the present approach.
Notes
a/ See L. Oppenheim, International Law, 7th ed., H. Lauterpacht, ed., (London/New York/Toronto, Longmans, Green and Co., 1952), vol. II, pp. 433-443; Krzysztof Skubiszewski in Manual of Public International Law, Max Sorensen, ed., (London, MacMillan Press Ltd., 1968), p. 833. See also U.S. Department of State "Memorandum of Law", 1 October 1976, in International Legal Materials, vol. XVI, (1977), pp. 734-735 and authorities cited in footnote 1 of the Memorandum. Israel has questioned the application of the law of belligerent occupation to the territories which it has occupied since 1967. However, the applicability has been overwhelmingly affirmed by the international community in numerous resolutions and decisions of the General Assembly and of the Security Council.
b/ See statement of Alfred L. Atherton, U.S. Assistant Secretary for Near Eastern and South East Asian Affairs before a U.S. House of Representatives Sub-Committee in Digest
of United States Practice in International Law, (Washington, D.C., U.S. Government Printing Office, 1977), pp. 922-924.
c/ See English text in Supplement 1 to the American Journal of International Law, vol. II, 1908, p. 90.
d/ See Articles 985-995, Egyptian Civil Code Promulgated by Law 131 of 1948,
(Alexandria, Le Journal du commerce de la marine, 1952); and Jordanian Law No. 43, Civil Code, Official Gazette, No. 2645, 1 August 1976.
e/ Gerard von Glahn, The Occupation of Enemy Territory (Minneapolis, University of Minnesota Press, 1957), p. 177.
f/ Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public
Order (New Haven/London, Yale University Press, 1961), pp. 812-813.
g/ See Edward R. Cummings, "Oil resources in occupied Arab territories under the law of belligerent occupation", Journal of International Law and Economics, vol. 9 (1974), pp. 533-593; Antonio Crivellaro, "Oil operations by a belligerent occupant: The Israel- Egypt dispute", The Italian Yearbook of International Law, vol. 3 (1977), pp. 171-187; Allan Gerson, "Offshore oil exploration by a belligerent occupant: The Gulf of Suez dispute", American Journal of International Law, vol. 71 (1977), pp. 725-733; Brice M. Clagett and O. Thomas Johnson, Jr., "May Israel as a belligerent occupant lawfully exploit previously unexploited oil resources of the Gulf of Suez?", American Journal of
International Law, vol. 72, (1978), pp. 558-585; Panel of American Society of International Law, Proceedings of 72nd Annual Meeting, (Lancaster, Pa., Lancaster Press, 1951), pp. 118-142. See also United States and Israeli Memoranda of Law, International Legal
Materials, vol. 16 (1977), pp. 733-753 and vol. 17, (1978), pp. 432-444.
h/ However, as indicated in the report of the Secretary-General of 30 June 1982 (A/37/328-S/15277, annex) some surface areas would remain permanently occupied (atop the underground pumping-station, for instance). This would apparently also apply to about a kilometre of "rectangular canal".
i/ Article 55, unlike article 52, has no express provision limiting use to "the needs of the army of occupation". However, in the aftermath of World War II it has been clarified that this limitation applied to property under article 55 as well as under other articles of the Hague Regulations. See resolution of the London International Law Conference of 1943 reproduced in Gerard von Glahn, op.cit., pp. 194-195; and Trial of the Major War Criminals before the International Military Tribunal, (Nuremburg, International Military Tribunal, 1947), vol. I, pp. 238-9; and Annual Digest and Reports of International Law Cases, (London, Butterworth and Co., 1946), vol. 13, p. 203 and pp. 214-5. For discussion see Brice M. Clagett and O. Thomas Johnson, Jr., op cit., pp. 580-582.
j/ "Report of the International Law Commission on the work of its thirty-second session", Official Records of the General Assembly, Thirty-fifth Session, Supplement No. 10 (A/35/10), p. 314, see also p. 305; Natural Resources/Water Series No. 1, Management of
International Water Resources: Institutional and Legal Aspects, Report of the Panel of
Experts on the Legal and Institutional Aspects of International Water Resources Development (United Nations publication, Sales No. E. 75.II.A.2), p. 25; Stephen M. Schwebel, Third
Report on the Law of the Non-Navigational Uses of International Watercourses, International
Law Commission document A/CN/4.348 (11 December 1981), para. 113 ff and authorities cited therein; Council of Europe 1965 "Report on fresh water pollution control in Europe", Yearbook of the International Law Commission, 1974, vol. II (United Nations publication, Sales No. E.75.V.7 Part II), Part Two, p. 340, para. 370.
k/ See Stephen M. Schwebel, op cit. Judge Schwebel states (para. III): "It is difficult today to find dissent from the general proposition that a state may not use, or allow persons under its jurisdiction or control to use, its territory in such a way that harm is caused to the territory or interests of another state". The classic case is the Trail Smelter Arbitration between Canada and the United States, United Nations Reports of
International Arbitral Awards, vol. III (United Nations publication, Sales No. E.49.V.2), pp. 1905-1982. Also the Lake Lanoux arbitral award indicated that if Spanish rights had been damaged either through reduction in flow or harmful chemical composition of the waters received, the Spanish claim would have been sustained. United Nations Reports of International Arbitral Awards, vol. XII, (United Nations publication, Sales No. E.63.V.3),
p. 281. See comment in A/CN.4/348 para. 142 and in A/CN.4/274 para. 370, Yearbook of the
International Law Commission 1974, vol. II, Part Two, (United Nations publication, Sales No. E.75.V.7.Part II), p. 370. The Harmon Doctrine in accordance with which a State may use water resources flowing through its territory without regard to rights and interests of other riparian States is almost universally rejected today. See A/CN.4/274 paras. 357 and 370, Yearbook of the International Law Commission 1974, vol. II, Part Two, (United Nations publication, Sales No. E.75.V.7.Part II), pp. 340-341; A/CN.4/348, para. 54 ff.
l/ See, for example, the Declaration of Montevideo (Seventh Inter-American Conference, 1933), para. 2 of which provides: "The States have the exclusive right to exploit, for industrial or agricultural purposes, the margin which is under their jurisdiction of the waters of international rivers. This right, however, is conditioned in its exercise upon the necessity of not injuring the equal right due to the neighbouring State on the margin under its jurisdiction. In consequence, no State may, without the consent of the other riparian State, introduce into watercourses of an international character, for the industrial or agricultural exploitation of their waters, any alteration which may prove injurious to the margin of the other interested State." See Natural
Resources/Water Series No. 1, (United Nations publication, Sales No. E.75.II.A.2), p. 24. Similar ideas have more recently been expressed in relation to other fields, for example, Principle 21 of the Declaration of the United Nations Conference on the Human Environment
(A/CONF.48/4/Rev.1); UNEP draft principles on conduct for the guidance of States in the conservation and harmonious utilization of shared natural resources (UNEP/IG.12/2) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX)). In a paper submitted by the Government of Hungary to the United Nations Interregional Meeting of International River Organizations held at Dakar, Senegal, in May 1981, Professor E. Prehoffer notes that there is a remarkable concurrence of content between the principle in these documents and articles of Agreements regarding frontier waters that establish
so-called "general obligations". Natural Resources/Water Series No. 10, (United
Nations publication, Sales No. E.82.II.A.17), pp. 349-352.
m/ For studies of the law relating to international watercourses see Yearbook of
the International Law Commission 1974, vol. II, Part Two (United Nations publication, Sales No. E.75.V.7 Part II) (A/5409) and (A/CN.4/274); Natural Resources/Water Series No. 1,
op. cit., and Natural Resources Water Series No. 10, op. cit., and the Reports of the Special Rapporteurs of the International Law Commission on the Non-Navigational Uses of International Watercourses (A/CN.4/295), (A/CN.4/320), (A/CN.4/332), (A/CN.4/348) and (A/CN.4/367).
n/ See (A/CN.4/348), paras. 130-141; see also study prepared by the Economic
Commission for Europe, Yearbook of the International Law Commission 1974, vol. II, Part Two (United Nations publication, Sales No. E.75.V.7.Part II), p. 330.
o/ Ali Khasawneh and Marvan Khoury, "Jordan: APC's first steps into the potash market", Phosphorous and Potassium, No. 125 (May-June 1983), p. 20.
p/ National Planning Council, Five-Year Plan for Economic and Social Development
1981-1985 (Amman, Jordan, Royal Scientific Society Press, 1980).
q/ Arab Potash Co., Ltd., "Arab potash plant" (Amman, Arab Potash Co., Ltd., 1980).
r/ W. N. Stanley, "Mediterranean-Dead Sea project: Effects on Arab Potash Company Operations" (Safi, Jordan, Jacobs International Limited, Inc., 1982).
s/ (A/37/328-S/15277, annex) para. 43.
t/ W. N. Stanley, op. cit., and (A/37/328-S/15277, annex) paras. 36 and 37.
u/ Rami G. Khouri, The Jordan Valley (London, Longman, 1981).
v/ The problem of development in an occupied territory was addressed, for example, by the Supreme Court of Israel in the Elon Moreh Settlement Case, International Legal
Material, vol. 19 (1980), pp. 176-177, namely, how is it possible to establish a permanent settlement on land which has been seized only for temporary use? The Court's reply was that such establishment "encounters a legal obstacle which is unsurmountable".
APPENDIX
List of persons who met with the mission
Government
Ministry of Foreign Affairs
His Excellency Marwan Al Qasem, Foreign Minister
His Excellency Saleh Kabariti, Ambassador
Mr. Abdulla R. Hamadneh, Officer, Research Department
Mr. Awn Khasawneh, Legal Adviser
Jordan Valley Authority
Dr. Monther Haddadin, Director-General
Natural Resource Authority
Mr. Yousef F. Nimri, Director-General
Arab Potash Company Ltd.
Mr. Ali Khasawneh, Chairman and Managing Director
Mr. Nasi Samawi, Operations Manager
Mr. Morgan Locke, Vice President/Works Manager
Mr. W. N. Stanley, Technical Manager
United Nations Development Programme
Mr. Adnan Raouf, Resident Representative
Mr. Khalid A. Jinini, Administrative Officer
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Document Type: Report
Document Sources: General Assembly
Subject: Agenda Item, Economic issues, Land
Publication Date: 31/10/1983