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Review of Water Legislation from the Pre-British Mandate Period through the Israeli Occupation

Introduction

Water holds a high ecological value, as it constitutes the basic factor of life in its continuity and essence. Since water is an integral part of human life, emphasis should be placed on developing, sustaining, and protecting it from pollution and misuse. This requires full government support in enforcing its national laws to maintain water resources. Full cooperation from all countries is needed to preserve the mutual riverbeds and courses.

The aim of this study is to expand knowledge of water laws and legislation in Palestine, especially in relation to recent serious political divides between peace and violence. Thus, water issues are examined through the legislation imposed and implemented and by exploring the different political bylaws and regimes of Palestine during the last century.

This study highlights water legislation beginning in the Ottoman Era from the mid-19th century, followed by the British Mandate's water laws and decrees from 1917 to 1948, the Jordanian Rule in the West Bank and the Egyptian Administration in the Gaza Strip up to 1967, and finally the Israeli occupation with its decrees and military orders related to water through 1996. The main objective is to raise the level of knowledge about water laws implemented in Palestine during the last century.

The Ottoman Era: Mid-19th Century until 1917

One of the most important laws found in the Ottoman Era was the Juridical Provision Journal for the year 1293 Hijri. The Journal didn't have many articles on water related issues except for that related to utilization of potable water. The journal also highlighted the fact that water was the property of no one, (article 1235); and recognized the right of the river bed and water course which do not harm or damage properties of people, (Articles 1224, 1228, 1229 and 1232).

The digging of private wells on individual properties was also mentioned in the Articles 1286, 1287 and 1288. Article 1236 pointed to allowing for the digging of public wells, on the basis that these were dug for the benefit of everyone and not monopolized for use by one specific person.

The Land Law of 1374 Hijri included a water-related article (Article 128) mentioning that "if the river course passing through the land of a specific farm is damaged in any way, the people living in the farm are the ones responsible of fixing the damage"1. The Ottoman legislation specified use of water for the benefit of social purposes, which highlighted the right of drinking and of preemption. This was due to the feudal system presiding in that era and was based on ownership of agricultural lands and livestock. This system stressed the fact that water should be used for household, drinking and agricultural purposes and did not specify other usages per Articles 1262, 1263 and 1265.

The British Mandate Period: 1917-1948

Many laws, bylaws and amendments on water were found for this period. An important law was the Law for Protecting Public Water Plans and its amendments. This dealt with public water plans, locations, announcements and their maintenance, and prohibited any individual from working in these locations for any reason without direct consent from the authority in charge. It provided the right for people who suffered damage to appeal to the authority of specialization to receive compensation if they could provide proof of damage.

The law also clarified the means of obtaining licenses to implement public water plans. The governor of the district was directly responsible for providing licenses. Furthermore, the law mentioned the sanctions and punishments that would be suffered by any person breaking the license regulations or performing illegal operations in water plan locations. The British Mandate gave more importance to implementation of water plans benefiting water resources such as the digging of wells for water collection and digging of canals to transport water (e.g., Al Aroub canal and Solomon's pools, transporting Capri's spring water to Akka2).

Another important law was the 1942 Law for Surface Water Drainage. This law shaped specialized provisions for monitoring surface water drainage and issues related to draining areas. It specified the allocation of a water supervisor referred to today as "the Water Authority." The law identified drainage locations and empowered the water supervisor to eliminate obstacles and prohibit agricultural water drainage locations, and to issue orders on how plans should be prepared for water drainage facilities. The law also provided people, who suffered damage from any water plan the right to appeal in writing, within one month of the plan's announcement. It defined methods for fee collection from beneficiaries and the returns that should be earned from landowners in the budgeting of the plan, insisting on the full collection of the fees. Article 19 of this law mentioned the management of animal crossings and vehicles near the water drainage facilities, prohibiting their passage through that area. The law also allowed the Higher Commissioner to issue bylaws needed for the water drainage plans3.

The Mandate also determined municipal bylaws, mandating the cleaning of sewages and the digging of toilet facilities away from the municipality areas; explaining that the responsibility for sewage cleaning or drainage was with municipal workers for fees set out by the municipal council4.

Jordanian Control over the West Bank and Egyptian Administration Control over the Gaza Strip: 1948-1967

After the 1948 Nakba, Jordan annexed the West Bank. Jordanian laws and bylaws were introduced as part of the West Bank's becoming Jordanian territory. At the same time, Egypt imposed its sovereignty on the Gaza Strip, implementing its own administrative decisions.

Jordanian Rule

One of the most important Jordanian laws on water was the 1952 Law for Settlement of Lands and Water no. 40. This provided a definition of the word "water" in Article 2, stating that the law settles all issues and disputes related to the right of ownership, disposal and utilization. It included management of a water registry, providing every piece of land with water resources with the right of ownership of this water, per Article 17. Accordingly, Article 24 stated rights of owners of water wells, caves and river beds in the "announced and settled for" locations in the boundaries of their lands or the neighboring lands. Consequently, Article 25 included policies of fee collection and returns for the settlement of lands and water.

Another Jordanian legislation was the 1953 Law for the Control of Water No. 31. The law defined the management and monitoring of irrigation plans, and the ways of submitting applications to apply for irrigation development plans, determining construction fees, and reasons for cutting water or diminishing its supply. It also addressed the reasons for diminishing the quantity of water used for agricultural lands, defining timetables for water supply and the share of water for each agricultural land, as well as the reasons for amendments, if necessary. Furthermore, it also provided rights to cut water supply in the event that any individual missed a fee payment, providing an article on utilization of water for household and agricultural purposes such as irrigating plants and watering animals or for industrial utilization.

Law no. 51, issued in 1959, defined the notion of water as: "all the surface and ground water resources including rivers, streams, valleys, lakes, pools, tanks, springs and rain water." This law was issued to allow the "Water Authority" to develop water resources, provide research and study plans, implement them and sign contracts, according to the Law for the Water Utilization on the use of water for household, agricultural, and industrial usage and for producing electricity5.

Bylaws for the municipalities were also developed. These bylaws set forth the right of sewage passage, providing municipalities with remote lands for sewage drainage networks and defined the length of the sewage networks. Jordanian Rule defined the bylaws related to water plans and their supply to some Palestinian cities, including the best practices for handling their implementation, water monitoring bylaws and ground water basins, as well as the ways to acquire licenses for digging ground water wells.

Egyptian Administration

The Egyptian Administration in the Gaza Strip took an interest in developing water plan bylaws prepared by the municipalities, approved by the Egyptian general governor. These bylaws addressed water plans for Gaza, developing sewage networks and different ways to maintain them. In addition to the approaches undertaken to submit applications for water plan development, the bylaws included water equipment installation and their fees, the size of water pipes needed for the networks and the requirements for approval, and the costs. These bylaws also showed how to contract with the particular municipal council that was hosting the plan. Furthermore, different steps in the installation of public taps were identified, as well as clauses prohibiting allocation of waste dumping sites near water networks. Issues of waste water and the ways of diminishing the pollution of the water networks were identified. The bylaws also defined responsibilities of the municipal councils for installing and maintaining water meters, the role of beneficiaries in the plans, the fees to be paid and how they would be collected, and sanctions on any one who violated these bylaws6.

The Israeli Occupation of the West Bank and the Gaza Strip 1967-2014

The Israeli Civil Administration issued several military orders related to water, including its distribution, ways of utilizing water resources, management and development of water and water plans in the area. It prohibited their Palestinian counterparts, whether individuals or organizations, from developing any plan or project related to water, unless given permits by the Israeli Civil Administration on rare and limited occasions.

A significant military order related to developing water resources, especially ground water, was Order 2, issued in 1967. This order declared that all water resourses in the Occupied Palestinian Territories belonged to the state of Israel. Another was Order 93, issued in 1967 immediately after the occupation of the Palestinian Territories, providing full power and authority over water resources to an Israeli officer appointed by the regional military commander. This order provided the officer with the necessary powers to control and manage water resources by providing licenses for the already built water facilities and the ones to be built; the ways of operating these facilities; and the power to appoint employees for the Water Authority.

The officer also possessed the right to issue other military orders dealing with the ownership of water resources, overlooking the right of ownership of water resources by Palestinians.

Order 389, issued in 1970, identified the investment of natural wealth, especially water resources, and showed how to apply for a water supply license. The Israeli occupation has implemented many decisions affecting Gaza, including water standards, water types and ways of treating and testing water. The occupation has implemented municipal laws related to sewage, waste water and water in Khan Yunis and Rafah, developing a Water and Sewage Authority for Bethlehem, Beit Sahour and Beit Jala. It also issued an order which decreased water quotas for agriculture in Gaza by 10%7.

The Israeli Civil Administration entrusted the management of water resources in the West Bank and the Gaza Strip to Mekorot, the Israeli water company. In return, Mekorot marginalized the role of Palestinian water organizations built before 1967 and turned them into administrative organizations. This gave all technical responsibilities and water policies to Israeli governmental bodies, which limited development of the Palestinian organizations and their capabilities8.

Mekorot is still in charge of operating and managing the ground water, despite the fact that article 2/b/31 of the 2nd attachment of Oslo Agreement states that the Palestinian Authority is responsible for operating, managing and developing all water and waste water resources and networks including the digging of wells in a way that doesn't damage water resources. However, Israel has made it impossible to incorporate this clause in the Agreement, thereby inhibiting Palestinian control over water resources. The Israeli company continues to operate and manage the existing water networks which supply the settlements with water. Furthermore, Mekorot is still responsible for most of the water resources provided to the Palestinians and the settlements, while not granting Palestinians their right to manage their own water resources. Mekorot also controls articles related to any harm that may occur to the water resources by the Palestinians in the West Bank.

Conclusion

Throughout the last century, water legislation in Palestine has reflected the political agenda of the governing regime. During the Ottoman Era water resources were considered private property, in the form of ground water wells, springs and the utility of surface water, and these regulations are still valid. Legislation during the British Mandate period can be divided into two levels, the regulation level (licensing, taxation), which was under the control of the high commissar, and the level of the local management, which included the allocation of water resources, distribution and pricing under municipal control. During the Jordanian period, water legislation was issued to improve domestic and agricultural sectors in the West Bank; in addition, governmental water institutions were established in order to control and sustain water resources. Finally, Israeli military orders since 1967 have aimed to control the allocation, development and use of water resources in Occupied Palestinian Territories (OPT). These Israeli orders have been especially aimed at limiting the use of water for agricultural purposes in the OP. These orders have indirectly given Mekorot, the Israeli semi-governmental company, the right to explore, distribute and develop water resources in the OP solely for the advantage of Israel and the Jewish settlers.

Acknowledgment

This study was funded by the UNESCO/Water History project.


Endnotes
1S.R. Baz, "Explanation of the Juridical Provision Journal," 576-578, 586; "Ottoman Laws, Civil Law, Juridical Provision Journal for the year 1293 H., (a)1224-1236, 1286-1288 (l). Legislative and Juridical Organization in Palestine, "The Land Law of 1374 Hijri."
2"Law for Protecting Public Water Plans No. 17 for the year 1937," Palestine Gazette 711 (1937): 239. National Palestinian Information Bank (2009).
3"The Law for Surface Water Drainage No. 15 for the year 1942," Palestine Gazette 1204 (1942): 73; "The Land Law No. 24 for the year 1943."
4"The Law for Settlement of Lands and Water No. 40 for the year 1952," Jordan Gazette 1113 (1952): 279.
5"The Law for the Control of Water No. 31 for the year 1953," Jordan Gazette 1134: 528; "The Law of Water No. 51 for the year 1959," Jordan Gazette 1465: 4.
6"Bylaws Relating to amendment of the gaza municipal water supply (Amendment) (bylaws 1938) 1966," Palestine Gazette 281: 7; Bylaws of Khan Younis municipal water supply for the year 1967," Palestine Gazette 311 : 3
7T. Ben Khadra. Conflict on Water between Arabs and Israel (2004), 155. G. Al Masri. Studies on the Occupied Land Affairs: Israeli Greed over Arab Water (1996), 48-56. "Order No 2 for the year 1967," "Order No.93 for the year 1967, "Order No. 389 for the year 1970."
8S. Al Mousa. Water in the Palestinian-Israeli Negotiations (1997), 29.

References
S.R. Baz, "Explanation of the Juridical Provision Journal," 576-578, 586; "Ottoman Laws, Civil Law, Juridical Provision Journal for the year 1293 H., (a)1224-1236, 1286-1288 (l). Legislative and Juridical Organization in Palestine, "The Land Law of 1374 Hijri."
"Law for Protecting Public Water Plans No. 17 for the year 1937," Palestine Gazette 711 (1937): 239. National Palestinian Information Bank (2009).
"The Law for Surface Water Drainage No. 15 for the year 1942," Palestine Gazette 1204 (1942): 73; "The Land Law No. 24 for the year 1943."
"The Law for Settlement of Lands and Water No. 40 for the year 1952," Jordan Gazette 1113 (1952): 279.
"The Law for the Control of Water No. 31 for the year 1953," Jordan Gazette 1134: 528; "The Law of Water No. 51 for the year 1959," Jordan Gazette 1465: 4.
"Bylaws Relating to amendment of the gaza municipal water supply (Amendment) (bylaws 1938) 1966," Palestine Gazette 281: 7; Bylaws of Khan Younis municipal water supply for the year 1967," Palestine Gazette 311 : 3
T. Ben Khadra. Conflict on Water between Arabs and Israel (2004), 155. G. Al Masri. Studies on the Occupied Land Affairs: Israeli Greed over Arab Water (1996), 48-56. "Order No 2 for the year 1967," "Order No.93 for the year 1967, "Order No. 389 for the year 1970."
S. Al Mousa. Water in the Palestinian-Israeli Negotiations (1997), 29.
Palestinian Water Authority Report. (2000)/ Al Nabulsi, T. Israeli Occupation of the Arab Lands. P.107.
Legislative and Juridical Organization in Palestine - Al Muktafi.

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