In our discussion, in chapter 2, of the environment of conflict, we described the political landscape in the Jordan basin. We suggested that the roots of conflict over the waters of the river system lay in the convergence of two phenomena: (1) the fact of resource scarcity in Palestine, and (2) Zionist efforts to establish a Jewish national home in Eretz Yisrael, where there lived an indigenous Arab population. We then outlined the various efforts at land and water development in the Jordan basin from the beginning of Jewish immigration to Palestine until mid-century. We noted that immediately following the 1948–49 war, both Israel and Jordan experienced massive influxes of population. The resource bases of the two newly founded states were strained considerably.

In the aftermath of the war, the concurrence of three critical factors — (1) the absolute need of both Israel and Jordan to develop land and water resources, (2) the fact of water scarcity in the basin relative to needs, and (3) adversarial relations among the riparian states — extended the scope of the Arab—Jewish conflict and crystallized what was to become a central issue in the Jordan waters dispute: on what basis should the waters of the Jordan system be shared? How much water should go to each side, and according to what principle?

In this chapter, we focus on the first, and perhaps, most important episode of riparian dispute in the Jordan basin in the post-1949 period: the United States-sponsored Johnston mission to the Middle East.

As in the Jordan River basin, in the Euphrates, Indus, and Nile basins, there has been conflict among the riparian states over the allocation and utilization of the rivers' waters. All four riparian disputes are located in arid or semi-arid regions, where resource scarcity is a fact of life. In all four cases and for some or all of the riparians, dependence on the river system is great. The basin states have very important agricultural sectors; they depend on the river primarily for irrigation water. For at least some of the states in each basin, unimpeded access to the water resources is linked to national security concerns. As noted in chapter 1, basin-wide, integrated development has been advocated as the optimal means for sharing the waters of an international river, especially in situations of acute need. However, in none of the cases have the basin states elected this approach.

While the three cases share with the Jordan dispute certain basic similarities, there are significant differences in conditions and variables that account for the variation in outcomes. First, in the Nile basin, there is no protracted conflict over multiple issues among the riparian states as there is in the Jordan, Indus, and to a somewhat lesser extent, Euphrates basins.

The following is drawn from a report on the Cotton Plan in the National Archives of the State of Israel, Foreign Ministry document (Record Group 93), box 3688, file 2.

Main features of Plan:

1. a comprehensive plan — not limited to resources of the hydrographic basin, “but includes all resources which can be beneficially integrated into a regional plan”

2. achieves an irrigated area (2,600,000 dunum) almost three times that of the Main Plan (940,000 dunum)

3. allocation of full quantity of water required for irrigation of all the irrigable areas within the Jordan, Litani, and Yarmouk basins; only the excess water would be allocated for the Coastal Plain and southern regions of Israel

Inclusion of Litani River

In this chapter, we shift the focus back to the cognitive variables at play in the Jordan basin. We begin by discussing the relationship that has developed between Israel and Jordan since 1967. To evaluate the potential for cooperation among adversarial states, we link Jordan's attitude toward its avowed enemy to three factors: (1) relative power or, more specifically, Israel's overwhelming (military) capability, (2) a long, shared border with Israel and hence, both geographic proximity and a number of common problems, and (3) acute need for unimpeded access to shared water supplies. In light of the geopolitical environment in the central Middle East, domestic needs and national interest have encouraged Jordan to seek a highly delimited, yet implicitly cooperative, relationship with Israel. Next, we consider the contrasting impressions of Israelis and Jordanians with regard to the persistence of riparian dispute. We highlight the salience in perceptions of both resource need and relative power, and provide an explanation for the variation in perceptions not unlike that for cooperation in international river basins.

Israel and Jordan: challenges and constraints

In order to make sense of the very particular relationship that has developed between Jordan and Israel, it would be necessary first to analyze each of the two states in terms of their strengths and weaknesses, internal and external constraints.

At the heart of any legal debate over an alternative Islamic banking system lies the definition of the word riba. The word is mentioned several times in the Qur'an. In a concise form, the rule can be stated thus: ‘God has forbidden riba’ (Q :II, 275). Depending on the domain subsumed under the word, a number of financial, commercial and legal transactions will be included in, or excluded from, the Qur'anic prohibition. The issue is complicated by the distinction, which appears in the hadith, between riba annasi'a and riba al-fadl.

Riba an-nasi'a is the classical form of riba, which entails – as in a loan – a fixed increase (riba comes from the root verb raba, yarbu, to increase) in the amount of money over a time period. Riba al-fadl, which occurs in a contract of sales when there is an increase in the terms of exchange themselves, is also prohibited following the Prophet's injunction. A hadith mentions six commodities which constitute the object of riba al-fadl (the exchange riba): ‘Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, each kind for each kind, in hand: he who increases or asks for an increase commits riba (arba), alike whether he gives or takes.’

In the modern banking world, it is the first riba, riba an-nasi'a, which is the main source of contention. If riba is defined as usury, then there is little problem in charging interest on transactions in the way of conventional banking.

Text of the official Foreign Ministry formulation of the Prime Minister's proposals

The four-point plan

(1) The Camp David partners – reconfirmation of the commitment to peace

Ten years ago, the peace treaty between Israel and Egypt was concluded on the basis of the Camp David accords. When the accords were signed, it was expected that more Arab countries would shortly join the circle of peace. This expectation was not realized. The strength of Israeli–Egyptian relations and the co-operation between the three partners to the accords have a decisive influence on the chances for Middle East peace, and the Israeli–Egyptian treaty is the cornerstone to the building of peace in the region.

Therefore, the Prime Minister has called on the three countries whose leaders affixed their signatures to the Camp David accords, the USA, Egypt and Israel, to renew, 10 years later, their commitment to the agreements and to peace.

(2) The Arab countries – from a state of war to a process of peace The Prime Minister urged the USA and Egypt to call on the other Arab countries to desist from hostility towards Israel and to replace belligerency and boycott with negotiation and co-operation. Of all the Arab countries, only Egypt has recognized Israel and its right to exist. Many of these states actively participated in wars against Israel by direct involvement or indirect assistance. To this day, the Arab countries are partners in an economic boycott against Israel, refuse to recognize it and refuse to establish diplomatic relations with it.

As a result of the June 1967 war, Israeli armed forces gained control of the Palestinian-populated territories of the West Bank and Gaza Strip, the Egyptian Sinai Peninsula and the Syrian Golan Heights. Pending legitimate endorsement of their status, these territories were subjected to what is technically termed ‘belligerent occupation’ i.e., were subject to international law, in particular to the Hague regulations of 1907 and the Fourth Geneva Convention of 12 August 1949 which specify that the basic duty of the occupying power is to preserve the existing situation.

As a result of the 6 October 1973 war, what became known as ‘Kissinger's shuttle diplomacy’ began, launched on 21 December in the ceremonial opening of a Middle East peace conference in Geneva, co-sponsored by Dr Kissinger on behalf of the US government and Mr Gromyko on behalf of the Soviet government. Invitations to participate were accepted by Egypt, Jordan and Israel, but declined by Syria, which established its position in a statement published on 22 December:

In fact, the Syrian position was already clear to Kissinger, when he visited Syria in connection with the invitation to the conference – the first visit by an American Secretary of State for eighteen years. Israel had objected to three paragraphs in the invitation.

Assistance to Israel

Arms supplies are a major factor in US strategy toward the Middle East. ‘Security assistance and arms sales improve our forward defense and help our friends to defend themselves’. Secretary of Defense Weinberger explained in testimony before the House Foreign Affairs Committee on 9 February 1984. ‘These military assistance programs are the overseas counterparts of our defense efforts and represent no less an investment in US national security than the programs for the Department of Defense itself. It is an essential instrument of overall US defense strategy and foreign policy.’

The US commitment to assist Israel in economic and military terms is based upon what is perceived as its value as a strategic asset in the Middle East; and support for Israel is rooted in perceived common cultural, religious and political values. The fact that some Arab countries are also supplied with weaponry in an attempt to improve their capability to meet threats from Iran or elsewhere – but excluding Israel – and to deter what was seen then as Soviet expansionism, poses a problem for the US in that it could also increase the potential Arab threat against Israel. Israel is therefore always provided with more assistance than the Arabs not only to maintain the balance, but also in the hope that by thus providing it with a cushion of security, Israeli pre-emptive attacks on the Arab states can be prevented.

The Palestinian decision to attend a peace conference to launch direct negotiations with Israel represents an important step in the search for a comprehensive, just and lasting peace in the region. The United States has long believed that Palestinian participation is critical to the success of our efforts.

In the context of the process on which we are embarking, we want to respond to your request for certain assurances related to this process. These assurances constitute US understandings and intentions concerning the conference and ensuing negotiations.

These assurances are consistent with United States policy and do not undermine or contradict United Nations Security Council Resolutions 242 and 338. Moreover, there will be no assurances provided to one party that are not known to all the others. By this we can foster a sense of confidence and minimize chances for misunderstandings.

As President Bush stated in his March 6, 1991 address to Congress, the United States continues to believe firmly that a comprehensive peace must be grounded in United Nations Security Council Resolutions 242 and 338 and the principle of territory for peace. Such an outcome must also provide for security and recognition for all states in the region, including Israel, and for legitimate political rights of the Palestinian people. Anything else, the President noted, would fail the twin tests of fairness and security.

The process we are trying to create offers Palestinians a way to achieve these objectives. The United States believes that there should be an end to the Israeli occupation which can occur only through genuine and meaningful negotiations.

In the preceding chapters, the relevance of the Shi'i schools of law for the modern constitutional debate, as well as the most direct sources at the origin of the present Iranian Constitution, primarily Muhammad Baqer as-Sadr's 1979 studies, have been presented. With these contributions in mind, this chapter will analyse some of the constitutional issues which have recently unfolded in the system. Occasionally, a comparative perspective will be introduced to shed more light on the problems that the Iranian institutions face.

In the widest acceptation of government, the quintessential constitutional question is about who ultimately holds the power to say what the law is. In view of the centrality of the shari'a in the definition of an Islamic state, this issue represents the essential problem of contemporary Islamic law.

A guiding perspective to the analysis of this chapter is offered by the celebrated exchange between Humpty Dumpty and Alice: ‘“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less”. “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that's all”’; or, as in a sermon preached two centuries ago: ‘Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.’

The independent Sovereign state of Jordan: some historical considerations

After the First World War Palestine passed from the Ottoman yoke straight into Britain's sphere of influence. So it remained, until 29 September 1922 when the Mandate, allocated to Britain by resolution of the League of Nations on 16 September, was confirmed by the Council of the League. Two Articles of the Mandate are relevant to this study.

Article 2 specified that the national home of the Jewish People was to be established in Palestine and that the Mandatory was under obligation to safeguard the civil and religious rights of all the inhabitants of Palestine irrespective of race or religion. To the Jews this meant their right of return to ‘Eretz Israel’ or ‘Biblical Israel’, after their dispersal by the Romans in 135 AD. To the Arabs – Christians and Moslems – it meant an alien intrusion into what they regarded as their homeland for the past thirteen centuries. As divine promises have no standing in international law, the Jews' biblical rights were regarded by the Arabs as a fanciful ‘allegation’ to further political ends.

Article 25 of the Mandate stressed that ‘In the territories lying between the Jordan and the eastern boundary of Palestine, as ultimately determined, the Mandatory shall be entitled with the consent of the League of Nations to postpone or withhold applications of such provisions of this Mandate as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18 [relating to religious freedom and the open door economy]’.