Thursday, February 9, 2012

Week # 1: Israeli Legal Background on Water Rights by J.K.

Recently, the Israeli Supreme Court, sitting as the Court for Civil Appeals, released a landmark decision in the area of water rights. In Abadallah Abu Massad v. Water Commissioner, the Court held that while the right to water is a basic human right, undeniable to all individuals, that right is not absolute, and must be balanced against the interests of the state.

The appellants, a collection of Bedouins who lived in communities that Israel considers illegal settlements, appealed to the high court a denial by the Israel Water Authority (IWA) of their request for water connections to be placed near their homes. The appellants argued that the method in which they received water, which was to travel to “water centers” in which they could buy water and transport it themselves to their communities, was so onerous as to violate their basic right to human dignity. The court has previously held that, for unrecognized communities, “direct” connections may only be established when justified by “special humanitarian concerns.”

The Court first held that the right to water is an inherent part of the right to human dignity, a right codified in the Basic Law on Human Dignity and Liberty. (FN: Israel does not have a formal constitution in the vein of the United States, and its basic laws serve as its constitution). However, the Court cautioned, this right is not absolute; it must be balanced against the state’s legitimate interests.

The Court’s standard in assessing whether or not the appellants’ right outweighed the interest of the state in denying their appeal to the IWA was that of reasonability and proportionality. The Court invoked Israel’s policy of relocating Bedouins to planned communities, calling it a valid state interest. The Court went on to speak of the problems inherent within illegal Bedouin settlements, including challenges in the areas of planning and construction, issues with the protection of property, and the disregard for the law. The Court especially focused on the latter point, holding that “a civilized and well-managed country cannot accept a situation where a group of people make a law for themselves, which opposes the rules of public order and law, and exceeds the realms of a normal society.” Therefore, the Court held that the broad policy of the IWA “withstood the test of relevance, reasonableness and proportionality.” This test is analogous to, in the United States, determining that the state’s purported interest has met the “legitimate government interest” prong of the rational basis test.
The Court then went on to examine each appellant’s case in its particular individualized context, to determine whether or not the particular circumstances outweighed the state’s interest. The Court held that three of the appellants’ claims did not, while three needed additional examination in order to properly decide.
There is interesting dicta at the end of the opinion which speaks of the dilemma that the state of Israel faces in regard to the Bedouin. On the one hand, the court says, the Bedouin are human beings who are entitled to the right to human dignity. But on the other hand, the phenomenon of illegal settlements is one which defies the law of the state of Israel. The court illustrates this dilemma by writing:
“...the State is responsible for ensuring the basic access of a person to water sources in Israel, even if he resides on land that is not his...even if he has violated the foundations of the rule of law. One must find the balance between the demand for keeping the law and its appropriate enforcement and the concern for a person’s basic and existential need for water, even if he does not abide by the law.”

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