A Comparative Analysis of the Israeli and Arab Water Law Traditions and Insights for Modern Water Sharing Agreements
Civic, Melanne Andromecca, Denver Journal of International Law and Policy
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. …