A comparative analysis of the Israeli and Arab water law traditions and insights for modern water sharing agreements.

• Author: Civic, Melanne Andromecca

INTRODUCTION

Rules of water use among early Jewish tribes date back as far as 3000 B.C.E. when Semetic groups settled at Ur in Mesopotamia.(1) Water,(2) a natural resource critical to all life and to human, social, economic, and industrial development, is scarce in the arid Middle East. The main sources of freshwater in this region include the Jordan and Yarmouk Rivers, and a number of underground aquifers, all of which have had to be shared by various communities with different religious, cultural and, in modern times, national identities. Yet, as stated by scholar Leif Ohlsson, "A river does not know any boundaries,"(3) and a river or other water source that flows through public or private property or crosses Israeli, Jordanian, Syrian, Lebanese or Egyptian borders must somehow be shared by all users.

Modern water law in Israel,(4) specifically, and in the Middle East, generally, addresses competing interest among users and usage, and more recently, among nations. It is the result of centuries of local customs and multiple political, religious and historical influences, including the ancient Jewish and Islamic religious and social laws, the laws of the Greco-Roman Empires, the Ottoman Empire and colonial Mandatory rule, and most recently, international principles of apportionment. Even where the Roman, and later the British empires ruled over the region, water law remained closer to the traditional Jewish and Islamic doctrines--most notably honoring a communal approach to water use, and close community or state control over water resources--than to the laws of the conquerors.(5)

This article examines the evolution of water law in Israel, and compares it to the development of Arab water law. First, it presents a discussion on water law of the ancient religious systems: Jewish law of the Talmud,(6) and Islamic law of the Holy Koran.(7) Next, it reviews water regulation under Ottoman rule when the Mejelle Code, a unified legal system, was enforced over the entire Middle East region. The article proceeds with a discussion of the impact on Israeli and Arab water law under British Mandatory rule. Finally, it examines the development of national water systems in the modern State of Israel and, as a means of comparison with a modern Moslem nation, the Hashemite Kingdom of Jordan.(8)

As an initial note, the historical legal systems(9) discussed in this article exert no legal authority either in the modern State of Israel or the modern Kingdom of Jordan. As part of the historical tradition of these nations, they remain relevant to law and custom at the local level, as well as to the legal and cultural perspective of the modern inhabitants. Finally, this author argues that water law development in Israel, and in the Arab countries bordering Israel, share a common historical theme. The legal and cultural perspectives of water ownership, use and regulation common to Israel and its neighbors, and distinctive to this region, may and should contribute in a positive and productive way to discussions on the present conflicts concerning the equitable division and sharing of water among the Middle East nations.

THE ANCIENT WATER LAW REGIMES

Certain fundamental similarities exist between the water rights and duties described in the religious law of both Judaism and Islam. Principally, both communities conceive of water as a gift of God's creation, belonging to all members of the community.(10) Access to water, at least for the purpose of human sustenance, is considered to be a right of all persons, within and without the community, and whether on private or publicly held property.(11)

Jewish Water Law(12)

Jewish religious and civil law is documented and commented upon in the Talmud, including rules on water rights and priorities(13) of usage. Jewish water law flourished from approximately 930 B.C.E. through 332 B.C.E, the beginning of the Greco-Roman Empires.(14) During this period,(15) the first centralized municipal water supply management system was instituted.(16) Jewish law and legal principles, to the extent that they did not conflict with the laws of their conquerors, continued to be followed(17) during the Greco-Roman,(18) and successive conquests, until the institution of the Mejelle Code under the Ottoman Empire.(19)

The fundamental Talmudic water law established that water was the common right of all people: "Rivers and Streams forming springs, these belong to every man."(20) Thus, all naturally occurring bodies of water, whether located on or adjoining private property, or whether flowing from one village to another, were the right of all--not just of the private property owner or of the community members. This scheme permitted no legal interest to exclude another from water use, although it recognized a system of priorities of use.(21)

Jewish law established a descending order of priority for certain types of water usage, and for villagers versus non-community members, or outsiders. At the top of the hierarchy was the "Right of Thirst"(22) -- no person could be denied the right to quench his thirst, regardless of whether he was a member of the community or whether the water was on public or private land.(23) Use by outsiders could be restricted, however, until the needs critical to the life of community members were satisfied.(24) Thus, villagers' drinking use attained priority over outsiders' satisfying their thirst, and then villagers' irrigation and livestock needs came before community outsiders' watering their animals: "A spring owned by the people of the city: their lives and the lives of others -- their lives take precedence over those of others; their beasts and the beasts of others -- their beasts take precedence over the beasts of others...."(25)

Lower on the water use hierarchy, the community's non-life sustaining, casual water use had priority over outsiders' casual use, but was subjugated to outsiders' life-sustaining needs. Thus, the community's laundering needs would be satisfied before those of outsiders, but an outsider could drink or water his animals before the community could use water for laundering: "[T]heir laundering and the laundering of others -- their laundering takes precedence over the laundering of others; the lives of others and their laundering -- the lives of others takes precedence over their laundering."(26)

Similarly, riparian landowners retained no right to exclude others from the reasonable use of the water of rivers and streams flowing through their property or wells located on their property,(27) although, the owner of the land did maintain a right of compensation for access across his land, and for use of the water: "And the children of Israel said unto Him, `We will go by the highway and if I and my cattle drink of thy water, then I will pay for it only, without doing anything else, go through on my feet.'"(28)

Among several landowners upon whose property a natural source of water flowed, priority of right to use the water varied according to locality.(29) Thus, in Palestine, the upper riparian landowner had priority over lower riparians,(30) and the landowner whose land was located nearest to a well had prior rights to the other riparians.(31) In Babylon, priority was determined principally on the basis of who could most easily make use of the water source.(32)

The owner of private property likewise had a legal property interest in any man-made water conduits or holding devices. The landowner had a right to restrict, but not to exclude, the use of wells, springs, or underground water sources. The owner of the land which was located closest to an underground source feeding a well had priority of use over all others.(33) He also had the responsibility for maintaining the well, but all riparian landowners using the well had a duty to assist him.(34)

Thus, under Talmudic law, water use could be regulated by the community, or the private landowner, upon whose property water flowed or springs formed. A system of priorities was established, but in no case did the property interest give the community or the landowner a complete right to exclude. Water use for human sustenance was available to all people from all sources. This perspective of water as a communal resource is mirrored in Islamic religious law(35) and later, in modified form, in Arab and Ottoman civil law.

Traditional Islamic Water Law

The Koran conceived of water as a gift from God,(36) and commentaries to the Koran, similar to Jewish Talmudic law, established a right of all men to use water, including a right to drink, to water one's animals, and a right to irrigate one's land, within a system establishing certain priorities of usage and user.(37)

Sharing water was considered a holy duty. Like Talmudic law, both Sunni and Shi'ite(38) law recognize a Right of Thirst, and denying water was considered to be an offense against God: "Anyone who gives water to a living creature will be rewarded.... To the man who refuses his surplus water, Allah will say: `Today I refuse thee my favo[]r, just as thou refused the surplus of something that thou hadst not made thyself.'"(39) Like Jewish law, Islam law held that all natural sources of water, including lakes and streams, belonged to all people.(40) Top priority was given to water for drinking purposes, then for domestic purposes, including watering one's animals, and then for other uses. Upper riparians and upstream users had priority over lower riparians and downstream users.(41)

While Jewish law allowed compensation for...