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The Human Right to Water in Israel: A Case Study of the Unrecognised Bedouin Villages in the Negev

  • Sharmila L Murthy (a1), Mark Williams (a1) and Elisha Baskin (a1)

In the case 9535/06 Abadallah Abu Massad and Others v Water Commissioner and Israel Lands Administration (2011), the Israeli Supreme Court ruled that the right to water deserves constitutional protection under Israel's Basic Law: Human Dignity and Freedom. The Court also found support for the right to water under both international human rights law and Israeli statutory law. At the same time, the Court held that the right to water is not absolute but must be balanced against the rights of the state. The case was brought by residents of unrecognised Bedouin villages in the Negev, a desert region in southern Israel, who do not have access to household water. The Court found that in exercising its discretion regarding additional water access points, the Israeli Water Authority could consider the ‘illegal’ nature of these villages. Applying the criteria of reasonableness and proportionality, the Court ultimately affirmed the Israeli Water Authority's policy in unrecognised villages in the Negev. Despite this administrative deference, the invocation of constitutional and international human rights law raises the level of scrutiny that should be applied to a review of the Israeli Water Authority's exercise of discretion. The Court's opinion is coloured and influenced by long-standing land disputes between the indigenous Bedouin population and the State of Israel. Drawing on empirical research conducted in December 2011, the analysis attempts to place the Abu Massad decision in its proper historical and political context. The dispute over land in the Negev can be traced back to the days of the Ottoman Empire. More recent efforts by the Israeli government as set out in the Goldberg Report and the Prawer Plan, and the international community's response to these efforts, are discussed. In light of the history and current political context, it may be prudent for the Israeli Water Authority to re-assess the effectiveness of its existing water policy in unrecognised Bedouin villages in the Negev.

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Deborah F Shmueli and Rassem Khamaisi , ‘Bedouin Communities in the Negev’ (2011) 77 Journal of the American Planning Association 109

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Keren Weinshall-Margel , ‘Attitudinal and Neo-Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel’ (2011) 8 Journal of Empirical Legal Studies 556, 577

Ronen Shamir , ‘Suspended in Space: Bedouins under the Law of Israel’ (1996) 30 Law and Society Review 231–57, 243

Ghazi Falah , ‘How Israel Controls the Bedouin in Israel’ (1985) 14 Journal of Palestine Studies 3551, 43

S James Anaya , ‘Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law. Keynote Address: Indigenous Peoples and their Mark on the International Legal System’ (2006) 31 American Indian Law Review 257, 260–61

S James Anaya , ‘European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society by Paul Keal’ (2005) 99 American Journal of International Law 306, 306

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
  • URL: /core/journals/israel-law-review
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