Water rights, in the context of water law, refer to the right of a user to use water from a water source (in the agricultural context) to irrigate his or her land and to provide water to livestock. This water stems from surface or groundwater resources. Where water is abundantly available and where only few users depend on the surface or groundwater for their livelihoods, water rights normally cause no or very few problems. However, in an environment of many users combined with water scarcity, which may be aggravated by climate change, the right to abstract water for irrigation purposes becomes a major issue of concern. In particular, already polluted water resources as a result of water use pose significant challenges for legal protection of water users. Because the legal frameworks for water resources are subject to various forms of legal regimes, water rights have become a complex issue in development practice.
Origins and development of water law
A growing body of literature has been devoted to the legal frameworks surrounding water resources from the 1990s onwards. In the development context, water law was traditionally of minor concern, as opposed to land and tenure law due to the prevailing conflicts of access to land for (often smallholder) farmers. However, due to a growing demand for water resources at a time of uncertainty secondary to climate change, the role of water law and tenure rights for water/water use has gained a prominent role amongst decision-makers and development experts, especially in its spatial dimension. While water law is closely associated with property law (environmental law has also decisively influenced it), the right of an individual to use water from a water source is a water right. Property law is the law that governs the various forms of ownership and tenancy in real property; environmental law regulates human interaction with nature.
Throughout history, different societies have had their own individual approaches to regulate water access. Water laws have been decisively influenced by the Western world. Water laws in vast parts of the world have applied the Romano-Germanic civil law tradition (continental Europe, Latin America, large parts of Africa, Indonesia, former Soviet Union countries and Japan). The other tradition that has been widely applied is the Anglo-Saxon legal approach (common law), as in the United States, India, Australia, New Zealand, Canada, Pakistan and Singapore. The main difference between these two legal traditions is the role of the courts (“judge-made law”) in common law as opposed to the role of the codification of law in civil law. As a third tradition, water laws in the Islamic world have been influenced by the Hadiths of Islam in Sharia law.
All law traditions have perceived water as a public resource (publici juris) that cannot be owned by any individual or specific group. Air, the seas and wildlife are also traditionally regarded as such. However, when it pertained to using water for agricultural production, the legal traditions differed when exercising the law. The “doctrine of riparianism” emerged in common law after decades of court decisions in which riparian users were permitted to make “reasonable use” of the water acquired with the land beneath the watershed. In cases where many farmers are dependent on the same water basin and where water availability is less abundant, the flexible term “reasonable” may be debated and need further clarification. In the US, the flexible application of the common law led to the “prior appropriation doctrine”, which held that those farmers (or miners) who first used the land connected to the water resources were allowed to make “reasonable use” of the water resource.
Customary or local law
Throughout history, societies governed water abstraction according to their own unique perceptions. Such influences are still found in customary or local water law. Customary or local law on the African continent, which previously influenced and was often manipulated by tribal chiefs and other influential actors, continues even today to cause further problems for farmers and other stakeholders. Although the legal traditions of the old colonial powers were “received” in most parts of Africa, the law hardly ever “trickled down” to the countryside where farmers are based and water is managed. In particular, when water is also intended to be used by other sectors (such as the energy sector), the application of local customary law poses severe problems for sustainable strategies aimed at using water in an economic and efficient way.
Islamic water law
In Afghanistan, the legal framework for water law is defined by customs and practices in accordance with Islamic law that honours local customs, as long as they do not collide with the principles of the divine Shari’ah law which lays out the duties of Muslims. As Camponera (2007) notes, “In Sunnite doctrine, community rights apply only to large bodies of water (Ali ibn Muhammad 1903–8, 313). A distinction must be made between lakewater, which can be used for all irrigation purposes without any objection; riverwater, which can be used for irrigation provided that it does not harm the community; and rainwater which, falling on land without an owner, is at the disposal of anyone for irrigation. The owner of the nearest cultivated plot has first priority. If there are several cultivated plots near the water, no order of priority is observed; however, the owner whose crops are most urgently in need of water takes first turn”.
As mentioned above, most water laws were designed at a time when population was much lower than today and pressures on water resources were minimal. The current problems of water law reflect the rather recent role of water in the global economy. Only the past two or three decades have placed water law on the agenda of local, national, international decision-makers and the development community.
The Dublin Principles
The growing need for new forms of regulations is the catalyst for moving towards a new system of modern water law. Water conflicts over water resources and the difficulties in ensuring effective management of less abundantly available water resources have both acted as the main drivers for new approaches. The Dublin Principles in 1992 ascribed an economic value to water resources: the economic value of water has now been taken into account in new forms of water regulation. Further, in November 2002, the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 15, which was formulated by experts as a comment on articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights. In this document, water is recognised not only as a limited natural resource and a public good, but also as a human right. The adoption General Comment No. 15 is seen as a decisive step towards the recognition of water as universal right, even though the document has no legally binding power (World Water Council 2012).
Water rights are not to be confused with the human right to safe drinking water and sanitation. Water rights can be defined as the claims, entitlements and related obligations among people regarding the use and disposition of a scarce resource. The introduction of water rights depends on the institution that stands behind them. Water rights are key assets, as they determine the distribution of benefits. Furthermore, water rights clarify who can use and manage water, as well as what responsibilities water users may have. Such a definition is, however, based on Western legal perceptions that may only be applied in countries where either the civil law or common law tradition prevail.
The majority of water management takes place on the grass-roots level of decision-making in rural areas. As a result, there is no universally agreed definition of water rights; it has different meanings and is used and applied in different contexts and jurisdictions around the world. The problem of de facto and de jure water rights pose significant challenges, as traditional/customary water rights are usually not written down, but rather orally defined.
Traditional/customary water rights
In the Sahel zone, the right to use water for an irrigation plot has been subject to oral definition within small units of a society by the tribal leaders or chiefs . Water rights are often connected with land rights or tenure rights in developing countries; hence the right to withdraw water is connected with land allocation and ownership. Fair procedure, however, is often subject to local power relationships within societies, where influential men often prevail over other users of water, womenin particular, regarding agricultural water use. Thus, the right to use water often affects gender and social justice, especially in areas affected by general or seasonal water scarcity. As well, there are sharp differences according to the legal tradition and geographical area. In the Sahel, the ability of smallholders in pastoralist contexts to access water rights depends on the ability to access rangeland and water provision sources for livestock production. In other contexts, such as in Islamic countries (e.g. Afghanistan), the rights to use water is managed and monitored by the community itself.
Modern water rights
Modern water rights are in their substance administrative or “usufractory” rights. In Australia and Chile, water users have to obtain a special permit to make use of the national water resources. Several forms of water allocation via administrative forms of regulations have emerged. One form is a command-and-control approach, taken in countries such as South Africa or Zimbabwe, where water rights are allocated by state authorities providing permissions to users. A second form is water markets, such as in Australia, which were developed to allocate water rights in a capitalist manner to efficiently govern water resources.
A third form, lead to the creation of Water Users Associations (WUAs) which were developed to allow users to democratically decide in a participatory way regarding the use of water resources for agricultural production. GIZ advises governments on how to transition the delegation of water rights from a top-down administrative approach to a community-based approach based on the Institutional Analysis Development framework by Elinor Ostrom (see water governance article). The transition process of water law is, however, still subject to various challenges due to dichotomic applications of traditional and modern law in the watersheds. The role of water rights affects German development cooperation at both the national and local level. Influential water rights’ holders are a significant challenge in advisory services to WUAs and Integrated Water Resource Management (IWRM), as the role of powerful social actors may complicate water sector reform.
- ↑ 1.0 1.1 1.2 1.3 FAO/Cotula, Lorenzo (edt.) (2006): Land and Water Rights in the Sahel. Rome: FAO.
- ↑ 2.0 2.1 2.2 2.3 Food and Agriculture Organisation of the United Nations (2006): Modern Water Rights: Theory and Practice. Rome: FAO.
- ↑ Hunt, Janin, and Kahlmeyer, Andre (2007): Islamic law: the Sharia from Muhammad's time to the present. Jefferson: McFarland and Company.
- ↑ Camponera, Dante (2007): Ownership and transfer of water and land in Islam. Landpedia (online). http://www.landpedia.org/landdoc/Analytical_materials/ILP_water=land.pdf [2012-08-17]
- ↑ 5.0 5.1 5.2 GIZ/Höllinger, Frank and Kasper, Albrecht (2000): Bodenordnungen und Wasserrechte. Eschborn: GIZ.
- ↑ 6.0 6.1 IFPRI/Meinzen-Dick, Ruth (2009): Drivers of Global Change: Implications for Water Management. IFPRI: Washington D.C.
- ↑ Guenther, Nadine (2010): Management and Utilisation of Natural Resources in Afghan Mountain Villages: a Study of Common Property Regimes and Rural Livelihood Systems in the Hindu Kush. Unpublished.
- ↑ Varzi, Manijeh Mahmoudzadeh and Wegerich, Kai (2008): Much ado about nothing – sub-basin working groups in Kunduz River Basin. (online). Water and Development Publications - Helsinki University of Technology.fckLRhttp://www.water.tkk.fi/English/wr/research/global/material/CA_chapters/05-CA_Waters-Varzi&Wegerich.pdf#fckLR[2012-08-18].
GIZ (2011): Assessing the contractual arrangements of large-scale land acquisitions in Mali with special attention to water rights.
GIZ/Deutsches Institut für Menschenrechte (2010): Water and sanitation - Ensuring access for the urban poor in Kenya. http://star-www.giz.de/dokumente/bib-2010/gtz2010-0455en-promising-practice-kenya.pdf [2013-02-14].
GIZ/Höllinger, Frank and Kasper, Albrecht (2000): Bodenordnung und Wasserrechte. Eschborn: GIZ.
GIZ/Meintzen-Dick, R. (2000): Property rights and maintenance of irrigation systems.Washington/Eschborn: GIZ.