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Environmental Aspects of the Cairo Agreement on the Gaza Strip and the Jericho Area

Published online by Cambridge University Press:  04 July 2014

Moshe Hirsh
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Environmental resources and hazards do not recognize political boundaries. The basic fact that the people of Israel and of the new Palestinian entity in the West Bank and the Gaza Strip share several important natural resources compels the parties to co-operate in the protection of these resources. Neither party is solely able to manage these essential resources (e.g., water) and any attempt to act unilaterally in this sphere might harm the interests of both parties. A quick reading of the Agreement on the Gaza Strip and the Jericho Area (“the Cairo Agreement”) shows that the parties were indeed aware of this, and the agreement includes numerous environmental provisions in various sections.

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Articles
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Israel Law Review , Volume 28 , Issue 2-3: The Peace Process , Spring–Summer 1994 , pp. 374 - 401
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 See, e.g., the general statement of Cheng: “On the spectrum of third-world ecosystem, colonial plunder is the primary cause of environmental degradation …” Cheng, L. P., “The Legislation and Implementation of International Environmental Law and the Third World: the Example of China”, in Weiss, E. Brown (ed.), Environmental Change and International Law: New Changes and Dimensions (The United Nations University Press, Tokyo, 1992) 179Google Scholar. Later on he restates the view, prevailing among numerous Third World scholars, with respect to the link between underdevelopment, environmental protection and the past practice of developed states: “Underdevelopment and lack of environmental sensitivity are the main explanations for third-world contribution to environmental problems. The underdevelopment results from the prolonged colonial plunder, control exploitation, and oppression to which they have been subjected. As a result, their natural resources and environments were seriously harmed and wasted”. Ibid., at 187.

2 See, e.g., Rinat, Z., “The Palestinian Nature”, Ha'aretz, 14 September 1994, p. B–4Google Scholar.

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4 (1976) 15 I.L.M. 290, and see Article XI of the Protocol Concerning Withdrawal of Israeli Military Forces and Security Arrangements.

5 This conclusion is reinforced in our context by the fact that several environmental provisions included in the Agreement correspond to the accepted customary rules in international environmental law. As to the application of international law to the 1993 Declaration of Principles between Israel and the PLO, see Benvenisti, E., “The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement”, (1993) 4 European J. Int'l L. 542, at 544–545CrossRefGoogle Scholar.

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8 In this judgment the Arbitral Tribunal made the famous statement that later became the cornerstone of the present international environmental law: “Under the principles of international law … no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein,…” Trail Smelter Case (U.S. v. Canada) (1941) 3 Reports of International Arbitral Awards 1907, at 1965. The roots of this statement can be found, inter alia, in several decisions of the U.S. Supreme Court, and particularly Georgia v. Tennessee Copper Co., 206 U.S. 1038. See also Corfu Channel Case (U.K. v. Albania), (1949) International Court of Justice Reports 4, at 22; Birnie, P. W. & Boyle, A. E., International Law and the Environment (Clarendon Press, Oxford, 1992) 89–90Google Scholar; Kiss & Shelton, supra n. 6, at 121-129; Sands, P., Chernobyl: Law and Communication (Grotius Publications, Cambridge, 1988) 7–15Google Scholar.

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12 It is clear that contemporary law of international responsibility does not require that the acting person will have some intention as a precondition to the imposition of responsibility; see, e.g., de Arechaga, J., “International Responsibility”, in Sorensen, M., (ed.), Manual of Public International Law (Macmillan, N.Y., 1968) 531, at 535Google Scholar; Birnie & Boyle, supra n. 8, at 141-142.

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14 Birnie & Boyle explain the term “due diligence” as follows: “In general terms, ‘due diligence’ requires the introduction of legislation and administrative control applicable to public and private conduct which are capable of effectively protecting other states …, and it can be expressed as the conduct to be expected of a good government”. Birnie & Boyle, supra n. 8, at 92; see also, Kiss & Shelton, supra n. 6, at 129-130.

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21 Dupuy, P. M., “The International Law of State Responsibility: Revolution or Evolution?”, (1990) 11 Mich. J. Int'l L. 105, at 108, 118Google Scholar. See on a similar trend in the tort law in municipal systems, Tune, A., International Encyclopedia of Comparative Law, Vol. XI - Torts, Part 1, (Nijhoff, the Hague, 1983) 60–61Google Scholar.

22 See, in particular, Articles 35(a) and (b) of the Protocol on Civil Affairs and Articles VII(13) and IX(5) of the Protocol on Economic Relations.

23 See, e.g., Restatement, supra n. 17, Comment e. to Article 601; Barron, supra n. 18, at 657.

24 UNEP Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 1978, reprinted in Hohmann, H. (ed.), Basic Documents of International Environmental Law, Vol. 1 (Graham & Trotman, London, 1992) 68Google Scholar; Principle 18 of the Rio Declaration on Environment and Development, supra n. 7; Article 9 of the 1974 OECD Principles Concerning Transfrontier Pollution, (1976) 14 I.L.M. 242; Article 7 of the International Law Association Rules of International Law Applicable to Transfrontier Pollution, supra n. 7; Article 19 of the Legal Principles on Environmental Protection formulated by the Experts Group on Environment Law, supra n. 7, at 116.

25 See, e.g., Article V (6) of the 1991 Agreement between U.S.A. and Canada on Air Quality, reprinted in Brown Weiss, E., Szasz, P. C. and Magraw, D. B. (eds.), International Environmental Law: Basic Instruments and References (Transnational Publishers, U.S.A., 1992) 263Google Scholar; Article 198 of the 1982 U.N. Convention on the Law of the Sea, (1982) 21 I.L.M. 1261; Article 13 of the 1989 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, (1989) 28 I.L.M. 657; the 1986 International Atomic Energy Agency Convention on Early Notification of a Nuclear Accident, (1986) 25 I.L.M. 299.

26 See also Article VII (3)(d) of the Protocol on Economic Relations with respect to outbreak of animal and plant diseases.

27 Report of the Sixtieth Conference of the International Law Association, Montreal (1982) 173Google Scholar; Kiss & Shelton, supra n. 6, at 133; Birnie & Boyle, supra n. 8, at 121; Restatement, supra n. 17, Article 601, Comment e.; Experts Group on Environmental Law, supra a. 17, at 116-117; Lammers, J. G., “International and European Community Law Aspects of Pollution of International Watercourses”, in Lang, W., Neuhyold, H. and Zemanek, K., Environmental Protection and International Law (Graham & Trotman, London, 1991) 115, at 128Google Scholar; Beyerlin, U., “Neighbor States”, in Bernhardt, R. (ed.), Encyclopedia of Public International Law, Vol. 10 (North-Holland Publishers, Amsterdam, 1987) 310, at 313Google Scholar. Woodlife expresses some doubt whether the duty of emergency notification is part of the present customary law but he holds that there exists such a customary obligation in the sphere of shared natural resources: Woodlife, J., “Tackling Transboundary Environmental Hazards in Cases of Emergency: the Emerging Legal Framework”, in White, R. & Smyth, B., Current Issues in European and International Law (Sweet & Maxwell, London, 1990) 105, at 113–114Google Scholar.

28 Kiss & Shelton, supra n. 6, at 116.

29 See, e.g., Restatement, supra a. 17, Article 601, Comment d.

30 Principle 18 of the Rio Declaration provides as follows: “States shall immediately notify other States of any natural disasters or other emergency that are likely to produce sudden harmful effects on the environment of those States …” Rio Declaration, supra n. 7.

31 The Corfu Channel Case, supra n. 8.

32 Ibid., at 22.

33 See, e.g., current threats of marine pollution from land based sources or to tropical forests from the process of urbanization.

34 On this Committee, see Article I of the Protocol on Civil Affairs.

35 Article 32(e) of the Protocol does not expressly provide that the Palestinian Authority is bound to provide the requested information, but unless such a meaning is attributed to the terms of this provision, the reference to such a request will be pointless. Thus, it is clear that the Palestinian Authority is under an obligation to deliver the relevant information concerning planning schemes.

36 Principle 17 of the Rio Declaration, supra n. 7; Article 6 of the OECD Principles Concerning Transfrontier Pollution, supra n. 24; Article 6 and 7 of the UNEP Declaration on Shared Resources, (1978) 17 I.L.M. 1094; Article 5 of the International Law Association Rules Applicable to Transfrontier Pollution, supra n. 7.

37 See, e.g., Article 206 of the 1982 Law of the Sea Convention, supra a. 25; Articles 5 and 8 of the 1979 ECE Convention on Long-Range Transboundary Air Pollution, (1979) 18 I.L.M. 1442; Article V(2) of the U.S.-Canada Agreement on Air Quality, supra n. 26. See also, Francioni, F., “International Co-operation for the Protection of the Environment: The Procedural Dimension” in Lang, W., Neuhold, H. and Zemanek, K. (eds.), Environmental Protection and International Law (Graham & Trotman/ Nijhoff, London, 1991) 203, at 205Google Scholar.

38 Francioni, supra n. 37, at 205; Lammers, J. G., Transfrontier Pollution and International Law, (Nijhoff, Dordrect, 1986) 90, 112Google Scholar; Experts Group on Environmental Law, supra n. 17, at 99; Beyerlin, supra n. 27, at 313. As to this rule in international watercourse law, see, Lammers, Environmental Protection in International Law, supra n. 27, at 129.

39 See, e.g., the Israeli Planning and Building Regulations (Environmental Impact Statements) 1982, 5742 K.T. 502; and the 1985 EC Council Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment, Official Journal No. L 175 of 5/7/85.

40 See, e.g., Articles 19(2)(c) and 20(3)(a) of the 1985 Association of South East Asian Nations (ASEAN) Agreement on the Conservation of Nature and Natural Resources, reprinted in Brown Weiss, Szasz and Magraw, supra n. 25, at 215; Article 206 of Law of the Sea Convention, supra n. 26; Convention on Environmental Impact Assessment in a Transboundary Context, 1991, (1991) 30 I.L.M. 800.

41 See, e.g., OECD Resolution on The Assessment of Projects with Significant Impact on the Environment, 8 May 1979, reprinted in Hohmann, H., Basic Documents of International Envrionmental Law, vol. 1, (Graham & Trotman, London, 1992) 400Google Scholar; Article 7(2) of the International Law Association Rules on Transfrontier Pollution, supra n. 7.

42 See, e.g., Article 19(2)(e) of the ASEAN Agreement, supra n. 40; Article 9 of the 1980 Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources, (1980) 19 I.L.M. 869. For more treaties with similar provisions, see Experts Group on Environmental Law, supra n. 17, at 105-107.

43 See, e.g., Article 7 of the OECD Principles Concerning Transfrontier Pollution, supra n. 24; Article 6 of the International Law Association Rules of International Law Applicable to Transfrontier Pollution, supra n. 7; Article 6(b) of the UNEP Declaration on Shared Resources, supra n. 24.

44 Lammers, in Environmental Protection in International Law, supra a. 27, at 132; Experts Group on Environmental Law, supra n. 17, at 104.

45 See, e.g., Gundling, L., “Prior Notification and Consultation”, in Handl, G. & Lutz, R. E. (eds.), Transferring Hazardous Technologies and Substances: The International Legal Challenge (Graham & Trotman, London, 1989) 63, at 81Google Scholar.

46 Francioni, supra n. 37, at 210.

47 Francioni, supra n. 37, at 212; Bruhacs, J., The Law of Non-Navigational Uses of International Watercourses (Nijhoff, Dordrecht, 1993) 178Google Scholar; Report of the Sixtieth Conference of the International Law Association, Montreal (1992) 173Google Scholar.

48 As stated above, this expression refers also to the obligation not to harm the environment of the other party.

49 Francioni, supra n. 37, at 212.

50 Lake Lanoux Arbitration (1957), 24 International Law Reports 101, at 128–130Google Scholar.

51 Bruhacs, supra n. 47, at 181; Bourne, C. B., “The Right to Utilize the Waters of International Rivers”, (1965) 3 Canadian Yrbk. of Int.'l L. 187, at 227Google Scholar; Griffin, W. L., “The Use of Waters of International Drainage Basins under Customary International Law”, (1959) 53 Am. J. Int'l L. 50, at 79CrossRefGoogle Scholar; and see Article 8 of the 1961 Resolution of the Institute of International Law on Utilization of Non-Maritime International Waters, 49 (II) Annuaire of the Institute de Droit International 381.

52 See, e.g., Kiss & Shelton, supra n. 6, at 139; Francioni, supra n. 37, at 210-211;

53 Bruhacs, supra n. 47, at 181.

54 See, e.g., Article 30 of the International Law Commission's Draft Articles on State Responsibility, 1980 International Law Commission Yearbook 33 (vol. II, part 2)Google Scholar.

55 Article I(3) of the Protocol on Civil Affairs.

56 See Section II C. (2).

57 See article 26 of the 1969 Vienna Convention on the Law of Treaties, (1969) 8 I.L.M. 679.

58 See in detail, on the principle in the law of treaties, Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals (Grotius Publishers, Cambridge, 1987) 106et seq.Google Scholar

59 See Section II C. (2).

60 See, for instance, in the Section II A.(4) which deals with the standard of care for extra-hazardous activities.

61 See Section II B. (1) above.

62 Following the completion of this article, a Treaty of Peace was concluded between Israel and Jordan (26 October 1994). Article 18 of the Treaty provides that the parties will cooperate in matters relating to the environment and that they “will negotiate an agreement on the above, to be concluded not later than 6 months from the exchange of the instruments of ratification of this Treaty”. Annex IV elaborates the subjects to be addressed in the future negotiations between the parties, and they include protection of nature, air quality control, and marine environment. This Annex also provides that the parties will “take necessary steps … to cooperate” in several areas, including “[e]nvironmental planning and management, including conducting Environmental Impact Assessment (EIA) and exchanging of data on projects possessing potential impact on their respective environments” (Art. B).

63 Some multilateral negotiations on environmental protection in the region have already started in the framework of the Middle East Peace Process Environmental Group (one of the five multilateral working groups established in the framework of the Madrid Peace Conference in 1991). This Working Group identified five fields for regional cooperation: watre, marine and coastal environment, air, waste management and desertification. On the work of the Environmental Working Group, see Peleg, I., “Challenges and Tasks of the Ministry of the Environment in the Peace Process” (1994) 23 The Biosphere 2Google Scholar.

64 Future regional agreements, of course, will not exclude bilateral environmental arrangements between the parties in the region, but their role will be to complement the regional regime in particular bilateral issues.

65 See, e.g., on the financial assistance in the Mediterranean Action Plan, Raftopoulos, E., “The Mediterranean Action Plan: Appraisal of a Model for Regional Cooperation”, in Sandler, D. and others, eds., Protecting the Gulf of Aqaba: A Regional Environmental Challenge, (Environmental Law Institute, Washington, D.C., 1993) 315, at 341–342Google Scholar.

66 Financial assistance may be employed not only as an instrument to encourage implementation by less-developed parties, but also as an important mechanism to monitor implementation, see Hirsch, M., “Implementation Mechanisms in the Future Environmental Agreements in the Middle East: Emerging Principles”, (1996) 14 Tel-Aviv Studies in Law (forthcoming).Google Scholar

67 Weiss, E. Brown, “Global Environmental Change and International Law: The Introductory Framework”, in Weiss, E. Brown, ed., Environmental Change and International Law: New Changes and Dimensions, (The United Nations University Press, Tokyo, 1992) 3, at 20Google Scholar.