GIVEN THE PRIME importance of water in all human activities, available water resources need to be protected, conserved, and managed in terms of both quantity and quality, for which water legislation becomes critical. Two important issues water law deals with are the ownership of water resources and the nature and distribution of water rights (which are usually usufructuary rights).
Early codifications related to water are found in the Pharaonic Water Regulations (of ancient Egypt), in the Laws of Manu (or Manava-Dharma-Shastra) in India, in the Hammurabi Code (of Babylon), in Chinese water regulations, and in Roman and Moslem law. The philosophy of the early water regulations depended (as it still does today) on geo-climatologic and physical factors, as well as on the social, technical, economic, and political situation of the countries or areas concerned. Thus, in regions where water was abundant, water regulations were largely directed toward defense against the harmful effects of water (e.g., flood control); in areas where water was scarce, regulations were concerned with the need to conserve available water supplies and with efficiency in allocation.
The old water codifications are not just of historical interest, but have also had considerable influence on current legal regimes in water. For instance, the principles of early Chinese water law (which are based on a belief of a close inter-connection between the human order and the natural cosmic order) have influenced water regulations in China, Japan, Korea, and Vietnam, at least until recently. But it is ancient Roman law that has exerted the greatest influence on the legislation of practically all modern nations. Hence, it is useful to briefly consider the form that it took.
Early Roman law recognized three classes of water rights—private, common and public. Under private rights, the owner of the land owned everything located above and below the land. This was the precursor to the riparian doctrine now followed in many countries, according to which use of such waters was private, unlimited and unrestricted, subject to sale, acquisition or transfer of the land over or under which the waters are located. That is, the riparian doctrine links control over water to control over land. Common rights permitted the use of water that was not yet occupied or without any owner to everyone without any limit or permission. In the case of public water (i.e., water owned by the state), use was subject to the state’s control.
The doctrine of public trust, which is found today in some countries, is derived from this. The idea here is that the particular characteristics of water resources (e.g., its unbounded nature) and its importance in different facets of life mean that it is not justified to make it an object of private ownership. Instead, water should be included under the public domain, which implies that the state should protect the resource for enjoyment by the general public, rather than permit its use for private ownership or commercial purposes.
These early Roman principles took three major directions. The first is found in a number of European countries such as Spain, France, and Italy as well as Cambodia, Laos, and Indonesia. Water law in these countries derives from the Napoleon Code (a code of law adopted in France in 1804). Water could be public (subject to government control) or private (freely utilizable on the basis of the riparian doctrine).
The second variant is the water law of the “Common Law” countries, which is derived from the English application of the original Roman law. This Common Law of England is found in the United Kingdom (at least until recently), the eastern United States, and many former British colonies. Here, the original principles of Roman law are basically followed, although the use of water could be limited via court decisions, administrative ordinances, or regulation.
The third direction that Roman law took was the so-called new American doctrine of prior appropriation, which is found in some of the western states of the United States. According to this, water rights are vested with the first claimant and user. Judicial decisions in the United States have now limited this doctrine by the provisions of “correlative rights” and “beneficial uses of water.” Some of the tenets included under this are: Water is not to be obtained for speculation or let run to waste, that the end use must be generally recognized and socially acceptable, that water is not to be misused, and that the current use must be reasonable as compared to other uses. Since the relevance of water rights is related to the availability of the resource, many water laws (other than those in the western United States) now have provisions that require the effective use of water. For instance, the notion that water rights risk forfeiture if not used according to the terms of a license or permit and is found in the laws of a number of countries such as Germany, Spain, and Mexico, although the terminology varies.
These different legal regimes have varying implications for equity. For instance, riparian rights—as traditionally constituted—usually have a negative impact on downstream users, in spite of the requirement that upstream riparians should not reasonably interfere with their rights. Similarly, the doctrine of prior appropriation is unfair to latecomers.
Apart from changes in the basic regimes of water rights over time, the content and scope of water legislation has also undergone change over time. Older water laws tended to promote water utilization, and were more concerned with punishing those who would harm existing uses or structures. For instance, an ancient article of water law traceable to the Code of Hammurabi of the Babylonian era (dated around 1700 b.c.e.) reads: “If anyone opens his irrigation canals to let in water, but is careless and the water floods the field of his neighbor, he shall measure out grain to the latter in the proportion to the yield of the neighboring field.” However, as a result of population growth and technological progress, water laws have begun to deal with newer questions such as priorities across different uses, setting of quality standards, conservation of water, and prevention and regulation of pollution. For instance, the policies of the 1992 Mexican Water Law include the preservation of water quality and the promotion of sustainable development. In the United States, the Safe Drinking Water Act of 1974 directs the Human Health Sub-Committee of the U.S. Environmental Protection Agency to ensure that both public and noncommunity water systems meet minimum standards for protecting public health.
Note that water law usually differs in the case of surface water and groundwater. In general, legislation pertaining to surface water has been most clearly and explicitly articulated. In the case of groundwater, the traditional Roman rule or English rule (that the owner of surface land was also the owner of the water under the ground) is usually followed. But with the advent of modern technology and the consequent overexploitation of groundwater, many countries have begun to regulate and control groundwater too as public property or by invoking the police power of governments.
Water law, whether dealing with surface water or groundwater, with questions of ownership and allocation, or regulation of use, varies not only across different nations, but also often within nations. This is especially true in those cases where provincial or local governments have jurisdiction over water. Furthermore, different kinds of water issues are also often divided under different ministries such as environment, agriculture, industry, health, and so on. As a result, many countries now have a plurality of laws relating to water, often conflicting with each other and known only to the administration of a particular agency of water resources development. In spite of this plurality of laws, provision to deal with various aspects—such as ownership, pollution, and coordination between different uses—is still inadequate, and/or the institutional structure necessary to ensure effective implementation of the laws is missing.
Apart from water legislation at the national level and within nation-states, water laws are also formulated at the international level. International water law derives from a number of sources: Conventions (bilateral or multilateral treaties over sharing of water resources), international customs (general principles of international behavior recognized by most nations), and judicial decisions. Two important principles found in many water treaties at the international level are: (1) the principle of equitable utilization, which states that the uses and benefits of a shared watercourse should be divided in an equitable manner, and (2) the requirement that a state—through its actions affecting an international watercourse—may not significantly harm other states. Both principles are found in the 1966 Helsinki rules governing the uses of waters of international rivers, and the Convention on the Law of Non-Navigational Uses of International Watercourses (adopted by the United Nations General Assembly in 1997). There is also a settled requirement under international law (which would also include the law on international watercourses) that states cooperate, consult, and negotiate in cases where the proposed use of a shared resource may have a negative impact on their rights and interests.
Apart from statutory law (the body of law laid down in acts of legislature and in subordinate legislation), water law (like any other law) also derives from other sources such as local uses and customs. Such laws and rules which are based on long-standing practice, and are not codified in written form, are called customary law. It is important to take these into account while preparing formal legislation, as otherwise customary users could be marginalized.
At present, water legislation is in a state of flux in many countries, partly as a response to the perception of a water crisis, but more often as part of a larger reform agenda (such as structural adjustment programs at the macro level). One important change is that state ownership as well as state involvement in development and distribution of the resource is slowly giving way to private decision-making. This in turn is leading to new kinds of rights such as the nonconditioned water rights in Chile, which do not have the requirement of effective and beneficial use. Another recent and important landmark in water legislation is found in South Africa, where an explicit right to water in the constitution is matched with an explicit right in implementing legislation (the Water Services Act of 1997 and the National Water Act of 1998).
Prior Appropriation; Riparian Rights; Water Conservation; Water Demand; Water Harvesting; Water Markets.
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