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Water law in British-ruled Palestine

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Abstract

This article surveys the water law of Palestine under British rule, identifying the legal norms governing the use of water and explaining some of the factors shaping the development of this area of the law. It argues that despite their lack of official lawmaking power, Arabs and Jews succeeded in decisively shaping the course taken by water law in this period. After surveying the Ottoman water law in force when the British took power in 1917, the article examines influential court decisions in a case brought by the Arab residents of the village Artas against government expropriation of water, and explains the significance of this litigation for the subsequent development of Palestine’s water law. It then discusses British initiatives meant to reform water law and subject the country’s water to state control, plans frustrated by the opposition of Zionist groups fearful of increased government regulation. It closes by noting that water law was made in this colonial context neither by imposition from above nor by resistance from below, but by intervention of subject peoples at the highest levels of official lawmaking.

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Notes

  1. For instance, the Safeguarding of Public Water Supplies Ordinance, 1937 and Water Survey Ordinance, 1938, remain in force in Palestine, and the Municipal Corporations (Sewerage, Drainage and Water) Ordinance, 1936 remains in force in Israel. Under both the Palestinian and Israeli Water Laws all water resources are considered public property, in line with the 1940 Order in Council and draft ordinances discussed in Parts IV and V below (Water Law No. 3/2002, Preamble and arts. 1, 3; Water Law, 5719-1959, secs. 1–2).

  2. Arab newspapers consulted include Al Dafaa', Al Karmil, and Falastin. For more on Arab attitudes and law, see “Conclusion.”

  3. Art. 17 of the Palestine Order in Council empowered the High Commissioner to pass "Ordinances" after consulting his Advisory Council. In some cases approval of the Colonial Secretary was also required, and in all cases ordinances could be disallowed by the Colonial Secretary.

  4. In the Balfour Declaration of 1917 the British government undertook to facilitate the establishment in Palestine of a national home for the Jewish people, and the preamble and Article 2 of the League of Nations Mandate for Palestine (1922) made the Great Britain responsible for doing the same.

  5. The Mandate preamble declared that "nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine," and Article 2 made the Mandatory responsible for "safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion."

  6. This seems to have been the import of a decision of the Ottoman Court of Cassation (1912), finding no legal remedy against a person who had widened a channel from a river dam to his factory, thereby cutting off the water to another factory.

  7. In the case of public land the new well had to be outside a small buffer zone of 40 arshins (cubits) for a well, 500 arshins for a spring; an arshin corresponded to 0.748 meters (arts. 1281–1282, 1288; Caponera 1954). For lands already held in private ownership (mulk) no buffer was required (art. 1291).

  8. A 1921 agreement granted Rutenberg an exclusive concession for the use of the waters of the Auja Basin (covering much of central Palestine, including the Jaffa-Tel Aviv area) for electricity generation and irrigation for 32 years. A 1926 agreement granted the PEC (of which Rutenberg was the Chairman) a 70-year concession to the waters of the Jordan Basin (the main surface-water source for Palestine and Transjordan) for electricity generation, along with the power to condemn water rights of existing users. The concession further obligated the government to enact legislation prohibiting uses of Jordan Basin waters that would conflict with the company's generation activities. The relevant provisions are clause 2 of the Auja concession and clauses 3, 11, and 11A of the Jordan concession, set out in the Schedule to the Electricity Concessions Ordinance, 1927.

  9. This article retains the historical British spelling when referring to the Urtas Springs Ordinance, but otherwise uses the current Artas when referring to the village.

  10. The Artas case has been noted as a precedent in international law (e.g. Knoll 2006), examined as a precursor to constitutional judicial review in Israel (Likhovski 1998), and considered as an episode in the development of Palestinian nationalism (Lemire 2011). A planned further article, based on new archival research, will flesh out the legal aspects the case.

  11. Article 16E was eventually (and ironically) put into force in Israel in 1950 (Declaration Giving Force to Palestine (Amendment) Order in Council, 1940), by a government whose members had fought so hard against the policy embodied in the amendment in the years preceding independence.

  12. Regarding her research on contemporary norms for water distribution in a Palestinian village, Trottier (1999) reports (pp 116–117):

    Villagers rarely admit the existence of a customary law regulating the sharing of spring water. Most often, the rules in use must be reconstructed from answers to questions such as “What do you do when a water shareholder dies? Who gets his share?” When the existence of a regulation is recognized, it is most often designated as Muslim law. Studying Muslim water law, however, shows us that it does not correspond to the law that is in force, which is in fact a local customary law that varies from village to village.

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Acknowledgments

Landon Derentz, Bill Gutterman, Shira Hantzis, Rachel Jacobson, Adi Levitski, MJ Muwassi, Yael Nomkin, Waseem Omar, Ariel Pariente, and Ben Soloway all provided critical research assistance. Dan Bitan, Nandini Chatterjee, Assaf Likhovski, Amer Marei, Assaf Selzer, Bob Varady, an anonymous reviewer, and participants in the faculty seminar at Tel Aviv University Faculty of Law supplied helpful comments at various stages. Research funding was provided by the Israel-Palestine Scientific Organization; the Israel Science Foundation (grant no. 1108/11); the University of Plymouth’s Judging Empire travel fellowship; the David Berg Foundation Institute for Law and History and the Cegla Center Interdisciplinary Research of the Law, both at Tel Aviv University; and the US National Endowment for the Humanities. Any views, findings, conclusions, or recommendations expressed in this article do not necessarily reflect those of the National Endowment for the Humanities or any other funder.

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  1. Faculty of Law, Tel Aviv University, 69978, Tel Aviv, Israel

    David Schorr

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Schorr, D. Water law in British-ruled Palestine. Water Hist 6, 247–263 (2014). https://doi.org/10.1007/s12685-014-0103-9

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