Summing up the Ottoman Period

Land categories: Mulk, Miri, Waqf, Matruka, and Mewat. Important Articles: 6 and 103, 59, 68, and 78. Impact of the OLC. Impact of the Ottoman prohibitions. Nascent conflict between peasant tenants and an expanding Jewish-Zionist land purchasing apparatus and, subsequently, a World Zionist Organization (Epstein?).

The Mandate Land Regime

Legal Systems and Land Regimes in the Context of Governing Regime Change (1918, 1948, 1967)
* Continuity and change.

* Regime interests, governing framework, and limiting factors. * Governing framework and limiting factors in the service of regime interests.

Periodizing the Mandate Land Regime

1918-1939 Colonial land reform policy. 1918-1919 1920-1929 1929-1936 1936-1939
1940-1948 The White Paper policy.
Problems with historical scholarship on the Mandate land regime

Late Ottoman Empire

1917

British Mandate

1948

State of Israel 1967 (1948-67)

State of Israel (1967-2008)

State Land Law

1. 2. 3. 4. 5. 6. Legal geopolitical work by the two national movements. Relationship between government and the national groups. Prevalent conceptions of property rights. Imperial/Colonial Rule vs. Local Administration. Key role of violence. Key role of regime changes.

The Jewish-Arab Conflict over Eretz Israel / Palestine

The Dual Obligation

Art. 6 of the Mandate Charter (July 1922)

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

Ottoman Law in Force on 1 November 1914

The principle of status quo ante bellum.
Convenience. Political considerations. International Law.

Art. 43 of the Hague Regulations (1907)

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and [civil life], while respecting, unless absolutely prevented, the laws in force in the country.

Art. 46 of the Palestine Order in Council (1922)

The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine on November 1st, 1914, and Subsequent enactments. Common law and doctrines of equity in force in England .

Land and Government In the Early Days of the Mandate

The colonial legacy of the British Mandate government. What guided British land policy during the first years of the Mandate? Institution of proper and efficient governance. Creation of a free market in land. Efficient taxation. Identifying and securing state land. Zionist pressure to undertake a land survey to identify state lands and waste lands for the Jewish national home (although this pressures impact on the British is in doubt).

The Main Thrust of Mandate Land Policy

Establishment of proper and effective governance and improvement of the economy of Palestine by means of a program of reform aimed at clarifying, strengthening, and registering all land rights in the country.

Transformation of Palestines Land Regime during the Mandate

The British maintained the laws in force but nonetheless made extensive changes Stemming from translation. Stemming from ideology, worldview, and basic conceptions. Through legislation. Through administrative changes. Through case law (judicial doctrine evolution). Through overall reform of the land regime.

Art. 2 of the Palestine Order in Council (1922) "Public Lands" means all lands in Palestine which are subject to the control of the Government of Palestine by virtue of Treaty, convention, agreement or succession, and all lands which are or shall be acquired for the public service or otherwise.

The Mahlul Land Ordinance, 1920

All those holding land which had become mahlul due to lack of cultivation must inform the authorities within three months. The government will take no action against those who comply with the ordinance and will lease them the land. Individuals and mukhatir who do not inform the authorities of their possession of mahlul will be punished in accordance with the law (fine or imprisonment).

The Mewat Land Ordinance, 1921

Struck the last section of Art. 103 of the O.L.C., which read: Anyone who is in need of such land can with the leave of the Official plough it up gratuitously and cultivate it on condition that the legal ownership (raqaba) shall belong to the TreasuryBut if anyone has broken up and cultivated land of this kind without leave, there shall be exacted from him payment of the tapou value of the piece of land which he has cultivated and it shall be granted to him by the issue of a title deed.

And replaced it with: Any person who without obtaining the consent of the Administration breaks up or cultivates any waste land shall obtain no right to a title deed for such land and further, will be liable to be prosecuted for trespass. Any person who has already cultivated such waste land without obtaining authorization shall notify the Registrar of the Land Registry within two months of the publication of this Ordinance and apply for a title deed.

Sir Ernest MacLeod Dowson

1900-1923 Held key positions in the British colonial administration in Egypt in survey, economic, and land reform. 1923 and onward Served as the chief land reform advisor in a plethora of territories throughout the British empire. 1923 Acceded to High Commissioner Herbert Samuels request to advise the Government of Palestine on land regime issues.

Land Laws During the Mandate

The Political Framework: The Dual Obligation The Legal Framework: Laws in Force + changes Changes stemming from translation, ideology, and basic conceptions. Changes through legislation. Changes through reform of the Land regime. Changes through case law.

Free Market and State Land

Dowsons Land Reform

Main underlying goal: Establishment of proper and effective governance and improvement of the economy of Palestine by means of a program of reform aimed at clarifying, strengthening, and registering all land rights in the country.

Guiding Principles: a) Western perspective. b) Securing state land. c) Centrality of the felahin. d) Revolution via evolution.

Mandate Land Settlement, 1928-1948

Land (Settlement of Title) Ordinance, 1928 Settlement Officer with broad administrative and judicial powers. Declaration of settlement areas which are surveyed and divided into blocs. Submission of private and state claims (Schedule of Claims). Under Sec. 29: all land to which no private rights established registered in the name of the state. Legal investigation of claims within each bloc, with claims providing basis for demarcation of parcels (Schedule of Rights). Clearly established unassailable rights of ownership for each parcel registered in a modern easy-to-navigate land registry.

The Administrative Structure of British Land Settlement

Dept. of Surveys

Lands Dept.
Dept. of Land Regist. Land Settlement Dept.
Settlement Officer
Appeals Until 1939

Supreme Court
Until 1939

After 1939

Land Courts

Doing Away with Split Ownership

Settlement of Title was used to do away with the Ottoman system of split ownership, or the practical distinction between mulk and miri. After settlement, settled miri and mewat were held in full ownership, with no cultivation requirements. In this way, by undertaking settlement in accordance with the O.L.C. (Art. 78 and Art. 103) the British emptied it of its content. Division of land between private holders (cultivated) and the state (uncultivated). Evolution of a new form of state land from theoretical title to full rights of ownership and usfruct (although theoretically, the distinction between raqaba and tasarruf remained).

The Role of Judicial Doctrine

Examples:

What constitutes revival for the purposes of Art. 103 of the O.L.C. (mewat)? What constitutes cultivation for the purposes of Art. 78 (miri)?
How to apply the registration clause of the Mewat Land Ordinance, 1921?

Reading for Sunday

Forman and Kedar Colonialism, Colonization and Land Law.

Recommended: Adler The Tenants of Wadi Hawarith.