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National and International Water Law

Water laws - which link water policy and water rights - have been in existence for many years. They are needed for the implementation and enforcement of policy, and to provide effective administrative and regulatory mechanisms at appropriate levels. The importance of water law was emphasised in Agenda 21.

Rights to water tend to be viewed differently in different societies, leading to a variety of water laws. Laws may be needed to protect the water rights of individuals - for example, access to a clean and adequate supply of water for basic needs - but can also be used to restrict water use or proprietary control and to introduce new policy initiatives deemed to be for the public good. The right to use water is a concept distinct from the ownership of water, and this distinction must be taken into account in the development of water law and the management of water resources.

Water laws also need to reflect changing circumstances. Permanent protection of historic rights will often not allow fair and efficient re­allocation of water. Priorities may also vary over time within states and regions, or depend on the level of economic development.

Water laws can take two forms: written and unwritten. Unwritten law is ‘customary law’ which has evolved over the centuries from social customs and traditions designed to govern relationships between individuals. Unwritten law can also take the form of ‘common law’, where a body of precedent informs the judicial decision taken in a given dispute. Such law is not ‘passed’ or ‘enacted’ by any legislative body, but forms a group of general legal principles upon which judges rely in making their decisions. Written ‘statutory’ law or ‘legislation’ is promulgated by a duly authorised law-making body.

In many countries several bodies are empowered to make legislation relating to water. A water law establishes fundamental principles and distributes powers relating to the management of water. As a general rule, matters which do not relate to fundamental policy, principles or rights, but which need to be governed by detailed regulations are not included in the main water law and instead form subsidiary legislation or regulations.

The main task of any government in revising or drafting new legislation is to make sure that it will be socially acceptable and administratively feasible. In deciding who shall have the ultimate authority to control and distribute water and how existing laws and customs should be modified, consideration needs to be given to a wide variety of political, social, economic and administrative aspects. National water laws must also take into account any International Conventions (see below) accepted by that country.

Water legislation should result from, rather than be imposed upon, the situation prevailing in a given country. This is especially true of a law that deals with fundamental issues, such as the respective rights of individuals and government in land and water, and which is thus basic to the particular society’s structure. Preparation of water law must involve technical experts, for example, hydrologic, engineering and economic experts, as well as lawyers.

The primary task of a water law is to give the Government or its appointed agencies sufficient power to undertake various tasks relating to the investigation, use, control, protection, management and administration of water. At the same time the rights of individual users to take and use water should be defined and protected.

A water law, therefore has two basic functions:

  1. It must confer certain powers for control of water and land upon the Government, whilst preserving or granting such rights to individual users as are consistent with the social, political, economic and developmental goals of the country.
  2. It must establish a basic administrative framework and the necessary institutions to execute the various functions assigned under the law.

The areas which should be covered by a water law, are therefore as follows:

Rights in natural waters

These provisions should establish the relative rights, powers and duties of individual users, private operators and the Government over naturally occurring water in its various forms. It should define those sources and matters subject to administrative control and those which are free of administrative intervention. Responsibilities for service provision should be distinct from those relating to resource management or regulation.

Necessary powers relating to land

Certain ancillary powers to undertake or control acts on land are essential to effective water management. Action may be necessary to protect the beds and banks of rivers and lakes, and to prevent erosion or pollution of adjacent land.

Registration and licensing of rights to use water

In order to formulate realistic plans for the sustainable development of water resources, information is needed about the availability of water. This information should cover quantity and quality, existing utilisation, and future requirements. It is therefore important to make provision for the proper certification, protection and measurement of the various consumptive uses of water. Other uses such as effluent disposal also have to be controlled.

Administrative structure

It is necessary to designate the administrative agencies responsible for developing and controlling water, to define their aims and objectives, to award them the necessary powers and to provide for their organisation.

Other issues

Water laws should address many issues apart from water rights, including: protection of the environment, waste and misuse of water, recycling and re-use of water, health promotion and pollution control.

Example of issues relating to groundwater to include in a water law:
  1. Designation of areas in which the search for and extraction of underground water is subject to control;
  2. Licensing of drillers;
  3. Obligations to recharge groundwater aquifers;
  4. Limitation of consumption through various means, including the installation of water meters;
  5. Procedures and requirements in the case of water found incidentally;
  6. Interference with mineral and oil deposits.

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

 

International water law

The need for effective regulation of international waters has become increasingly acute as supplies from water sources shared between two or more countries become stretched and quality deteriorates. Water can be a significant source of conflict between neighbouring states; equally, however, as nearly half of all river basins in the world are shared, the rationale for finding modalities for water-sharing and water protection between riparian states is compelling. Although there is a large body of law on international watercourses, no universal legal principles have yet been agreed.

Until recently, the legal basis for most negotiation on international rivers has been The Helsinki Rules on the Uses of the Waters of International Rivers. The Rules were formulated in 1966 by the International Law Association, an NGO, and the International Law Commission, a subsidiary organ of the UN General Assembly. The Helsinki Rules embrace the concept of the international watercourse, for which water resources, whether passing international boundaries or entirely within one country, are treated as the common property of all basin states. The Rules contain two substantive principles: a prohibition of appreciable harm by way of deprivation of water rights, pollution or other means; and the right of each basin state along an international waterway to a reasonable and equitable utilisation of its waterway.

More recently, Agenda 21 set out a general statement of principles for protecting the quality and supply of freshwater. The UN Economic Commission for Europe established the Convention on the Protection and Use of Transboundary Watercourses and International Lakes which came into force in Europe in 1996. In May 1997 the UN General Assembly adopted the Convention on the Law of the Non-navigational Uses of International Watercourses which drew on the earlier European Convention. This Convention remains open for signature by countries until the year 2000 and requires 35 signatories to enter into force. Further information on the Convention can be obtained from the Office of Legal Affairs, UN, New York.

There are numerous regional agreements for specific river basins or lakes, including the Indus, Niger, Zambezi and Lake Victoria. The Global Environment Facility provides assistance for transboundary water projects in order to protect international waters.

There are also other International Agreements of importance to water resources management. These include those on Climate Change, Biological Diversity, Wetlands (see Ramsar Convention, in Chapter 12), and Desertification/Drylands.

The Convention on Law of Non-navigational Uses of International Watercourses

While the Convention represents an important step towards international agreement on the use of transboundary waters, many states with strong vested interests either abstained or voted against it. The main disagreement occurs on the balance between the rights and obligations of upstream and downstream states. Some States felt the provisions for the settlement of disputes and regarding groundwater were unsatisfactory.

The Convention aims to ensure the promotion of optimal and sustainable utilisation of international watercourses. It states that countries along international watercourses shall utilise such waters in an ‘equitable and reasonable manner’. This requires that all relevant factors and circumstances be taken into account including geographic, hydrographic, hydrological, climatic, ecological and the social and economic needs of the states concerned. The effects of use in one state should take into account uses in another, as well as protection for the whole watercourse and the costs and availability of alternatives to a planned or existing use. The Convention requires prior notification of measures that are expected to alter the watercourse, and arbitration should states disagree on any planned measure.

Fundamental to preparing legal agreements between states is the need for improved scientific understanding, information dissemination and research; in many countries, little is known of the hydrological or other scientific aspects of water resources. The differing capabilities of co-riparian states for regulation and monitoring can be a hindrance to effective agreement. The Convention recognises the need for water to be treated as an economic good and states that no water use enjoys inherent priority over other uses unless there are agreements or customs to the contrary.

Obtaining international agreement over watercourses is difficult but essential to equitable and sustainable use of shared waters. Doctrines such as absolute sovereignty over water within a state (prior appropriation or a first-come-first-served system), or its opposite (downstream users have the right to full flow of water of natural quality), are untenable. Countries need to adopt new principles outlined in the Convention, such as the doctrine (sic utere) that one should not use one’s property to injure others. The essence of this principle is that State A is entitled to exercise its rights, but cannot ignore the interests of State B. This principle was used to form the basis of an agreement between France and Spain on the use of transboundary water for hydropower.

Further information: Guidelines on water and sustainable development: principles and policy options, UNESCAP, 1996.International Agreements, World Bank, 1997.

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