Water law at the UK Supreme Court

Nandini Chatterjee recently posted at Imperial & Global Forum on an exhibition opening today at the UK Supreme Court in London, "A Court at the Crossroads of Empire: Stories from the Judicial Committee of the Privy Council", which she is co-curating. The exhibition website explains that it:

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uses a range of case studies to explore how the JCPC served as an evolving hub of the British Empire - both shaping and shaped by a wide range of different cultures and communities - and how the judges serving on the JCPC applied the common law to both translate and mediate at the crossroads of Britain's colonial interests.

The exhibition includes panels created by my colleague Assaf Likhovski and me on the development of water law and constitutional law in Mandate Palestine through the 1926 Urtas Springs case (Jerusalem-Jaffa District Commissioner v Murra).

I also wrote about the case in a recent article:

Serious objections were raised... [to] the transfer of water from the village of Artas (spelled “Urtas” in the official documents of the time), south of Bethlehem, to Jerusalem. Arab opposition to the attempt of the Jerusalem Water Supply Department to ameliorate the shortage by pumping water from Artas led to a fiercely fought legal battle....

Realizing that the water plan was open to legal attack, the Palestine government enacted legislation, known as the Urtas Springs Ordinance, 1925, empowering the High Commissioner to authorize the Jerusalem municipality to take water from the Artas spring for a period of up to 12 months. Water sufficient for the Artas inhabitants’ domestic uses, animal watering, and irrigation of tree plantations was immune to taking. While water used for irrigating annual crops could be taken for the Jerusalem system, the Ordinance ordered that compensation be paid for damage to crops and for losses from inability to plant crops due to the reduction in water available to the village. Disputes between Artas residents and the Jerusalem water department over the level of compensation were to be decided by an arbitrator to be appointed by the High Commissioner, with no appeal from his decision.

Moghannam E. Moghannam, the plaintiffs' attorney

With a statute explicitly authorizing the water diversion, the only possible legal arguments available to the Artas residents were of the constitutional type, impugning the validity of the legislation itself. The Artas petitioners contended that the Urtas Ordinance violated their civil rights by taking private property—water—and providing an inadequate compensation mechanism, with no right of recourse to the regular courts of the land. Such a taking was in violation, they argued, of Article 2 of the League of Nations Mandate, which made the Mandatory responsible for “safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” Since Palestine Order in Council (Article 17(I)(3)) provided that “no Ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate”, they claimed, this violation of the Mandate invalidated the legislation in question.

In the summer of 1925 the Supreme Court of Palestine ruled for the petitioners. Article 17 of the Order in Council was held to incorporate the Mandate’s requirement that the civil rights of the inhabitants be safeguarded, and property rights in water were held to be civil rights of the sort protected by the Mandate. While the power to legislate necessarily included the power to infringe on property rights, held the court, the responsibility to safeguard civil rights meant that takings of property had to be fully compensated. If the compensation mechanism were lacking, as it was in this case, the ordinance as a whole would be held void.

This ruling was appealed by the government to the Judicial Committee of the Privy Council in London, the highest judicial tribunal of the British Empire. The Privy Council held that the Palestine Supreme Court was correct in its understanding of the relationship of the Mandate to ordinances enacted by the Palestine government. It disagreed, however, with the Palestine court on whether the Urtas Springs Ordinance violated the terms of the Mandate. According to the British court, the Mandate’s direction in Article 2 that the Mandatory be responsible for “safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion” meant simply that the Palestine government could not discriminate based on race or religion. This, thought the Privy Council, the Urtas ordinance did not do. The court agreed that in cases of expropriation of property full compensation should typically be paid, but this, it held, was not a question of civil rights, but rather of principles of justice and sound legislation, a matter not within the purview of courts of law. Moreover, it went on to rule, the compensation mechanisms established by the Urtas statute were not deficient, and thus did not violate the civil rights of the inhabitants, even were these to be considered constitutionally protected by the Mandate through the Order in Council.

If you're in London this summer, you may want to check out the exhibit; it's open till September 26 and admission is free.