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

Sharmila L. Murthy, Carr Center for Human Rights Policy, Harvard Kennedy School
Mark K. Williams, Carr Center for Human Rights Policy, Harvard Kennedy School
Elisha Baskin

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This paper has been accepted for publication and will appear in a revised form, subsequent to peer review and/or editorial input by Cambridge University Press, in Israel Law Review, Volume 46, Issue 1 (2013), which is published by Cambridge University Press under the auspices and management of the Minerva Center for Human Rights at the Law Faculty of the Hebrew University of Jerusalem

Abstract

In the case, 9535/06 Abadallah Abu Massad, et al. versus Water Commissioner & 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 Liberty. The Court also found support for the right to water in international human rights law and under 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 unrecognized 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 reasonability and proportionality, the Court ultimately affirms the Israeli Water Authority’s policy in unrecognized 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 colored 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 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 forth 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 unrecognized Bedouin villages in the Negev.