New Article and Response: Elsana and Hwang, Application of the Customary Land Rights Model on the Arab-Bedouin Case in Israel

Elsana, Morad. “The Recognition of Indigenous Peoples’ Land: Application of the Customary Land Rights Model on the Arab-Bedouin Case in Israel.” Georgetown Journal of Law & Modern Critical Race Perspectives 7.1 (2015): 45-67.

Hwang, Julie H. “Reaction to: The Recognition of Indigenous Peoples’ Land: Application of the Customary Land Rights Model on the Arab-Bedouin Case in Israel.” Georgetown Journal of Law & Modern Critical Race Perspectives 7.1 (2015): 69-70.

 

URL: https://articleworks.cadmus.com/geolaw/mcr00116.html

 

Excerpt

Based on the Australian experience, this paper introduced the idea of recognizing Bedouin land rights based on the recognition of their customary law. To illustrate this idea, this paper introduced the recognition of Aboriginal land in Australia and then applied the Australian model on the Bedouin case in Israeli. The recognition of Aboriginal land rights in Australia relies mainly on the existence of three elements. The first is the existence of a system of law, such as Aboriginal customary law; the second is the existence of a connection to land, which means the existence of a traditional land rights system; the third element is the existence of a legal recognition option for these elements in the state legal system. One such option is the native title doctrine in Australia. This last element is a bridge that connects the indigenous peoples’ customary law with the state law and enables the state to recognize indigenous peoples’ customary law and their rights under their customary system.

The second part of this paper addressed Bedouin land recognition. This part applied the Australian model of land recognition on the Bedouin case. It mainly showed the existence of the three elements for recognition in the Bedouin land case in Israel. First, it demonstrated the existence of the Bedouin traditional system of law; second, the existence of Bedouin connection to the land; and then it introduced the third element, which is the recognition option or the “bridge” that demonstrates how the Israeli legal system includes two options that could work as a connection to Bedouin customary law. The first bridge option is through Tribal Courts Regulations and the second is the principle of custom as a source of law.

In conclusion, similar to Australia and other countries that have recognized indigenous land rights, the legal system in Israel includes sufficient legal elements that can lead to the recognition of Bedouin traditional law that would bring recognition of their traditional land rights.

Excerpt from Hwang’s response: Perhaps judicial resolution is not the most promising course of action in asserting land rights for the Bedouins. Sarah Matari suggests that the power imbalance and historical mistreatment of Arab Bedouins in Israel make a courtroom battle a highly unsuccessful option for the Bedouins.9 Instead, she suggests a series of mediation as a possible way for the Negev Bedouins to discuss with the Israeli government to negotiate their rights to the land. 1O Although there is serious doubt as to the efficacy of any mediation due to the historical hostility between the Negev Bedouins and Israelis, I think mediation may be a more hopeful option for the Bedouins because the native title doctrine approach has its limitation when applied to the Negev Bedouins in Israel.