THE IMPORTANCE OF WATER LAW AND INSTITUTIONS
FOR SUSTAINABLE DEVELOPMENT

Dante A. Caponera*

1. The importance of water law

History shows the intimate connection between economic and social development of a society and adequacy and dependability of water.

Once ancient peoples settled around a water supply area, the need for institutions and regulations for bringing water under control were immediately felt. Civilizations grew and prospered whenever their regulatory controls imposed upon water were efficient, and civilizations often declined or disappeared as a consequence of the softening or ineffectiveness of such regulatory controls.

The earliest codifications may be found in the Egyptian Pharaonic Water Regulations, in the Hindu Laws of Manu, in the Babylonian Hammurabi Code, in the Chinese Water Regulations and in Roman and Moslem law.

In the Mesopotamian region, the Hammurabi Code, formulated 4000 years ago, bears witness to the early importance that the settlers of the Tigris and Euphrates valleys attached to regulating water use and waterworks protection.

Like the Nile and the Tigris and Euphrates, the Indus and Ganges civilizations came to birth upon their banks around 3000 B.C. Documents relating to water laws are contained in the Manava-Dharma-Shastra or Laws of Manu 1300 B.C., which quote important water regulations.

In the basin of the Yellow River, the Chinese cleaned and drained the land, providing a system of irrigation as early as 3000 B.C.; a water code was enacted in about 500 B.C.

In ancient Greece also, in spite of the prevailing feeling of regionalism, irrigation was handled by the different city-states. The Anfictionias, especially those of Delphos, were bound to set up special interstate tribunals dealing with the legal conflicts created by irrigation.

2. Water law from ancient times to the present

(a) Early Roman law recognized three classes of water rights: (i), private, which entailed unlimited and unrestricted use subject to sale, acquisition or transfer of the land over or under which the waters are located; (ii) common, entailing the right to use of such water to everyone for any purpose, without limit or permission; and (iii)) public, when owned by the State, their use being subject to State control.

Roman law has exerted great influence on the legislation of practically all modern nations, and, in the course of history, the water law principles have taken three major directions.

(b) Water law principles in code countries are those which were codified by the Napoleonic Code and found similar treatment in the water laws of France, Spain, Holland, Portugal, Italy, etc. They have strongly influenced the water laws of countries all over the world that were once under their cultural influence.

According to "code countries" theories, waters may be either public or private. Public waters are those of which the utilization is subject to government administrative permits. Private waters are those which may be freely utilized on the basis of the riparian doctrine.

(c) The common law of England continued to apply the old Roman concept that water was "res communis" and could not be the object of ownership, not even by the State or the Crown. Any limitation to the use of water is to be declared through regulation. Recently these uses have been brought under State control.

This system has exerted immense influence in the Eastern States of the USA, and on all recent water regulations enacted on those countries once under English cultural Influence (Australia, New Zealand, India, Pakistan, Sri Lanka, Burma, Hong Kong, Singapore, Malaysia, etc.).

(d) Subsequently in some Western States of the USA a new theory developed, the so-called "appropriation doctrine". According to the appropriative system, a water right is created in favour of the first who claims and uses the waters.

Within the USA, this doctrine of the Western States collided with Mexican water law principles, giving rise to the new theories of "correlative rights" and of the "beneficial uses of waters"

(e) Islamic water law purports to ensure to all members of the Moslem community the availability of water. According to the Holy Koran and the Hadithes (traditions), all waters are deemed to be the common entitlement of the whole community, and water legislation considers water resources as either belonging to the State or as part of the public domain, signifying the whole community.

(f) Early Hindu water law principles, now prevailing only in Ball, are those contained in the Manava-Dharma-Shastra or Laws of Manu, which are a religious and administrative nature.

According to these principles, water is deemed to be public property, indivisible, to be controlled by the ruler's administration, and of a religious character. These Hindu principles, subsequently evolved and superseded by the Dhammathats of Bhuddist ethics and philosophy, have influenced the customary water laws of Burma, Cambodia, Sri Lanka, Laos, Thailand and, to some extent, Japan and India, in spite of more recent written codifications.

(g) In the Chinese legal system the basic concept of water law, deriving from the combination of the legalists and the Confucian theoreticians, stresses the supremacy of collective interests over private ones, and, while private ownership of water cannot be traced in its long legal history, the principle of water equalization among all co-riparians was the basis on which this hydraulic civilization had its roots for almost 5000 years. The provisions set forth in modern water law codifications have maintained the same ideas.

3. Elements of water law

(a) Basic provisions

The concept of the juridical status of water, including ownership, may be relevant for establishing successful control over the rights connected with the use of waters.

The right to use waters is a concept distinct from water ownership; very often, however, such a distinction does not appear in existing water legislation. It is very important with respect to the administration of water resources, whether their use is exercised over publicly or privately owned waters. In any case, where waters are public property, any use may be subject to government authorization, permit, licence or concession.

Procedures for the issuance of water use permits or authorizations may be more or less detailed, according to the administrative and economic situation of a country. They include provisions concerning the authority competent for the issuance of water use permits or authorizations, as well as kind, character, duration, reasons for forfeiture, suspension, renunciation, abandonment, renewal, extension and modification of such permits, procedures for the administrative determinations and claims against the issuance or refusal of permits.

Priorities vary in time and depend upon the stage of economic development. They may vary also within each state from region to region. It seems therefore not advisable to legally crystallise priorities.

Water law addresses also the problems of (i) waste and misuse of water, (ii) recycling and re-use of water, (iii) health preservation, and (iv) pollution control.

These problems may be, to a large extent, taken care of through ad hoc provisions, obligations and limitations inserted in the permits, authorizations and concessions for water use, and the contracts attached thereto.

Provisions relating specifically to groundwater law may include (i) the establishment of areas, or districts, in which the search for, extraction and utilization of underground water are subject to control by the water administration; (ii) the licensing of drillers, (iii) obligations to recharge groundwater aquifers, (iv) limitations of consumption through various means, including the installation of water meters by the water administration, (v) procedures and requirements in the case of water found incidentally, and (vi) interference with minerals and oils.

In zones which have been declared as protected, restricted or rationed, the water administration may impose, by public announcement, limits to water withdrawals or diversions, prohibition of certain uses, priorities among uses and other limitations or obligations dictated in the public interest.

(b) Water administration

A water administration may be perceived either at different levels (national, regional, basin-wide or local) or according to the different functions which it must perform (political, executive, technical, legal), or according to the type of beneficial use or harmful effect or quality aspect it is supposed to control or administer. Often, many ministries, departments or other autonomous authorities are responsible for only specific sectors of water resources, without adequate coordination among them.

Planning the development and conservation of water resources requires a comprehensive and unified approach in order to have as much detailed knowledge as possible of: (i) the availability of water (inventory) both with regard to quantity and quality; (ii) existing utilizations; (iii) future needs and requirements on the basis of population growth. These, in turn, require that water be brought under a unified or coordinated administrative management.

Given its unique nature, water must be considered in its entirety. Coordination among agencies dealing with water, or a unified water administration at the national and at the local - departmental or basin - level is a mandatory pre-requisite for the rational management of water resources and for ensuring sustainable growth.

Water law addresses this problem at every level, and it purports to define the duties, powers, functions and degree of decentralization of that administration, down to, and including, the associations of water users and special and autonomous water development agencies.

Water law further encompasses the international aspects of water resources administration, as it seeks coordination among national water policies and administrations affecting international drainage basins or simply the international sections of rivers and lakes.

4. Current experiences and trends

Due to the fact that the problems connected with water resources legislation and administration are generally encountered not by legally trained people but by water technicians and economists, the exact content, spirit, implications and extent of water law and administration are either overlooked or not well known.

On the other hand, lawyers, in general, lack in their legal training the knowledge of basic hydrologic, technical and economic data which are indispensable for dealing with water law, and therefore are generally not equipped to provide those legal and institutional solutions sought by technicians and economists.

Water law and administration is, by definition, and interdisciplinary science, relatively now and necessitating an inter-disciplinary approach.

Education, research and training in water law and administration has thus become a subject of international concern. It figured prominently on the agenda of the Second Conference on Water Law and Administration (AIDA II) held by the International Association for Water Law in Caracas, 1976, and in the U.N. Water Conference of 1977.

Recently the Agenda 21 of the Dublin Conference of 1992 emphasized the importance of water law, and the subsequent Rio Conference introduced the idea of sustained development of water resources.

In conclusion, the teaching of water law must be given adequate consideration. Training centers and institutions for the legal aspects of water resources management should be established with an eye to the needs of developing countries.