A precise definition of the term "water rights" is not easy.
The publication titled "Modern water rights- theory and practice" prepared by Stephen Hodgson for Food and Agriculture Organization (FAO), a United Nations (UN or UNO) agency, looks at the theory and practice behind the emerging concept of "modern water rights". While much of the work relates to this concept, the publication is also useful in understanding "traditional" water rights in the two currently dominant legal traditions (civil law & common law).
The publication also provides a definition of the term "water rights" as generally understand. Hodgson states (pages 13-14) "Indeed the term "water right" is actually used in different contexts and different jurisdictions to mean quite different things". He explains this is so because each country has its own unique needs and argues "What is normal and reasonable in one country as regards both the use and regulation of water may appear quite strange or even irrational elsewhere". He argues separately (page 17) that the terms "water rights" and "right to water" are broadly unrelated.
Hodgson starts with a simple definition: "So just what is a water right? In its simplest conception a water right is frequently understood to be a legal right to abstract and use a quantity of water from a natural source such as a river, stream or aquifer".
Hodgson goes on to mention other factors including the flow of water and "non-consumptive" rights. He thus arrives at a complex but more inclusive definition:
"Thus, depending on the specific legal rules in force in a given jurisdiction a water right may be necessary:
· to divert, restrict or alter the flow of water within a water course;
· to alter the bed, banks or characteristics of a water course, including the construction (and use) of structures on its banks and adjacent lands
· including those related to the use and management of water within that water course;
· to extract gravel and other minerals from water courses and the lands adjacent to them;
· to use sewage water for irrigation;
· to undertake fishing and aquaculture activities;
· for navigation; and/or
· to discharge wastes or pollutants to water courses"
Because water rights depend to a great extent on the applicable legal system, a brief study of legal systems is in order.
The sources of law are generally categorized as:
· Natural law (or natural justice) based on inherent natural aspects (and therefore universal)
· Religious law (sometimes called "canon law") derived from religious text, rulings & practices
· Customary law based on traditions & customs
· Constitutional law (statute law) as codified in the respective constitutions and systems derived from the constitution
There are several overlaps or contradictions. Customs and religious practice often influence each other. Several statutes in the civil law tradition codify traditional practices.
It needs to be emphasized here that most national legal systems include elements from one or more sources. The above classification is therefore important but not adequate for the purpose of this study.
While every nation has its own set of laws, these can be broadly categorized into one of the below legal traditions:
· Civil law
· Common law (sometimes called the English common law)
Both these traditions originated in Europe (ancient Greece & the Roman empire) and gained adherence as nations developed. Common law is believed to have emerged in England & Wales between the end of the Roman rule and the Norman conquest. This explains the widespread use of Latin terminology in common law.
Common law is prevalent in England & Wales as well as most of the former English colonies. North of Hadrian's Wall, Scotland developed a separate indigenously developed common law. A small group of nations (e.g. South Africa) follow a hybrid of civil law and common law traditions. Most other countries follow the civil law tradition.
It needs to be noted that the legal systems adopted by individual nations vary quite a bit. All civil law countries for instance do not necessarily follow the same law. An interesting example is Germany, a leading civil law nation and Israel that follows English common law use the jus sangunis principle of nationality determination as distinct from the jus soli principle followed by the rest of the world.
The difference between the two traditions is quite deep. A full examination of these differences is not necessary to the current study. It is sufficient to acknowledge that civil law is subject to a great degree of codification while common law is driven primarily by stare decisis (precedent). In other words, the difference between the two traditions is about law making, not laws.
It has been argued that the two traditions are converging in today's changing world. Common law jurisdictions do have extensively codified statutes. Civil law regimes have of late started recognizing precedent. While this argument has a good deal of merit, the differences persist at the time of writing.
For the purpose of this study, I decided to examine water rights in important religious laws and both the major legal traditions.
The collection titled "The Evolution of the Law and Politics of Water" edited by Joseph W. Dellapenna & Joyeeta Gupta includes a chapter (# 10) on "India: Evolution of Water Law & Policy" written by Phillippe Cullet & Joyeeta Gupta. This chapter is made available by the International Environmental Law Research Center (IELRC).
Cullet & Gupta write (page 3):
"The Laws of Manu (ca 200–100 BCE), within this tradition, provide indications of the water law of the time. Water was considered indivisible. Those who could were obligated to develop water works for the benefit of others (chapter IV, §§226, 229). Kings should protect public waters and collect fees for crossing waters (chapter VIII, §§61, 69; chapter IX, §§264–266, 281). Diversion or obstruction of waters was discouraged (chapter III, §151) and the laws imposed a system of social reprimands and punishments for those who polluted the water or who stole or diverted (chapter IV, §§46, 48, 56; chapter XI, §174; chapter VIII, §309; chapter IX, §281). Destruction of embankments was illegal. The law encouraged the use of water bodies as boundaries between villages to ensure that as many villages as possible had access to water (chapter VII, §§4–7). Water bodies of enemies, however, could be destroyed in times of war (chapter IX, §28). A water controller was in charge of water administration".
The authors go on to discuss Kautilya's Arthashastra on page 4. They state "Arthashastra discusses the use of water for the development of water works, irrigation, and transport, specifying that all water belonged to the king and that users were to pay a water tax to withdraw water from irrigation systems installed by the king (Kautilya ca 300 BCE–300 CE: 73–74)".
According to Cullet & Gupta, there were limited provision for private ownership of tanks & embankments. While these rights were somewhat akin to property rights (for instance the "owners" could sell these), the "ownership" was limited to use & maintenance. Rights lapsed if tanks were not used for five years.
With respect to irrigation Cullet & Gupta write "The Arthashastra stated that in irrigating one’s own field, no harm is to be caused to others. It prohibited the release of water from dams without a legitimate reason, the obstruction of the legitimate use of water by others, the obstruction or diversion of the watercourse, and the building of water works on the land belonging to someone else. Where damage was caused to another party as a result of overflowing waters, compensation was owed to the other party. The Arthashastra provides a list of damage types and the corresponding compensation or penalty due".
It may be worth noting that Manu is a law giver while the Arthashastra is a guide to statecraft. As such it is more appropriate to defer to Manu's prescription. However this is not serious in the present context as there are no apparent contradictions between the two scholars on water rights.
Hindu water law may be briefly summarized as below:
· Water is considered to be indivisible
· Water is to be used for the benefit of the general public
· Water is owned by the state (or king)
· Limited water rights to private individuals subject to continuous beneficial use
· Water users should cause no harm to other users
· Compensation or penalties for damages caused to others
Halakha (Jewish law) does not provide much material on water rights. None of the 613 mitzvahs (commandments) directly relate to water rights. This may be because the law is primarily addressed towards individuals.
The Book of Genesis is the first section of the Hebrew Bible, covering the creation of the world. Genesis 2.6 can be translated as "streams came up from the earth and watered the whole surface of the ground". Ecclesiastes, a book of writings presented as the autobiography of an unknown teacher named Koheleth, is another section of the Hebrew Bible. The book is considered alternatively as an embodiment of wisdom or a way of life. Ecclesiastes 1:7 can be translated as "All streams flow into the sea, yet the sea is never full. To the place the streams come from, there they return again". These verses are often interpreted to determine the ancient Hebrews had a good knowledge of the water cycle.
Dr. Daniel Eisenberg, a Talmudic scholar specializing in Jewish medical ethics, wrote an article called "Rationing Health Care" for the Jewish Law Commentary. The article relates in part to the subject of water shortages. This section can be used to understand the stance of Judaism on water rights.
Dr. Eisenberg cites the Talmud (Nedarim 81a) that describes a scenario in which two cities share a water supply that originates with the city at the top of a hill. He writes "Talmud rules that the upstream community takes precedence if there is only enough water to provide drinking water to one community, because the water "belongs" to the upstream community".
He goes on to raise a much more difficult question:
"But what if the upstream community wants to use the water to bathe and wash clothes, and the result will be a shortage of drinking water for the downstream community? In this case, the Talmud has a disagreement. While the majority opinion forbids the first city to hoard water for bathing and washing clothes if the second city will lack drinking water, there is an opinion of Rabbi Yossi that permits the upstream city to keep the water at the expense of the downstream community.
What possible rationale could there be for depriving a city of drinking water so that others may wash clothes? The opinion makes sense when we understand that Rabbi Yossi accepts the opinion of a physician-Rabbi in the Talmud who felt that abstaining from bathing and washing clothes could result in the development of life-threatening illnesses. Therefore, according to this opinion, one may put the second city's welfare in present danger in order to save the first city from a grave future danger".
Dr. Eisenberg argues Rabbi Yossi's view is based on the fundamental Jewish principle of not unnecessarily endangering oneself on behalf of another. Returning to his main subject, he however cautions that healthcare rationing is a much more complex matter than the hypothetical situation answered by Rabbi Yossi.
On balance, it may not appropriate to treat Rabbi Yossi's view as representative of Jewish water law. Firstly the argument is based on an individual perspective. More importantly, his is clearly a minority view. The unambiguous portion of Nedarim 81a may therefore be considered to represent Jewish water law acceptable to all scholars.
It may be argued that Dr. Eisenberg is not a water rights scholar and his reference to water is incidental to the article on healthcare rationing. While this may be correct, the article was considered on the basis of the Talmudic reference without any undue weightage to the author's medical ethics. As there does not appear to be any other Jewish material contradicting the above, this can be considered as reflecting Jewish tradition on water rights.
Jewish water law may thus be briefly summarized as below:
· Water "belongs" to the originating (i.e. upper riparian) user subject to "a hierarchy of benefits"
· Water is to be used for the benefit of the general public
· Water may be shared on "equally beneficial use" basis
· Water users should not cause significant harm to others
The last point is not directly mentioned but can be inferred based on the fact that the majority of the scholars forbid the upper riparian community from hoarding water. It is reasonable to interpret the restriction as relating to significant harm rather than "any harm".
Water law in Islam does not appear to be derived directly from the Qur'an. None of the 114 suras directly cover water rights.
Most Islamic jurists accept hadith and sunnah as being supplementary to the Qur'an. Hadith, narratives about Prophet Mohammed (peace be upon him) including his quotations as cited by early Muslims, are in particular treated as essential to understanding the Qur'an and/or Islamic jurisprudence. While there are thousands of hadith in circulation, scholars such as Bukhari & Muslim classified various hadith based on their authenticity. The highest classification is referred to as sahih i.e. authentic. A sahih hadith is one that meets five stringent conditions including trustworthiness of the narrator (or everyone in the chain of narrators) and non-contradiction with another already established hadith.
There is only one sahih hadith directly relating to water rights. As this is classified as authentic by the reputed scholar Bukhari, this may be treated as a crucial element of Islamic water law.
Hadith 3:548 (sahih al-Bukhari) is reproduced below:
"Narrated 'Abdullah bin Az-Zubair:
An Ansari man quarreled with Az-Zubair in the presence of the Prophet about the Harra Canals which were used for irrigating the date-palms. The Ansari man said to Az-Zubair, "Let the water pass' but Az-Zubair refused to do so. So, the case was brought before the Prophet who said to Az-Zubair, "O Zubair! Irrigate (your land) and then let the water pass to your neighbor". On that the Ansari got angry and said to the Prophet, "Is it because he (i.e. Zubair) is your aunt's son?" On that the color of the face of Allah's Apostle changed (because of anger) and he said, "O Zubair! Irrigate (your land) and then withhold the water till it reaches the walls between the pits round the trees". Zubair said, "By Allah, I think that the following verse was revealed on this occasion": "But no, by your Lord They can have No faith Until they make you judge In all disputes between them". (4.65)"".
Hadith 3:543 (sahih al-Bukhari) recognizes the concept of "right to water" for humans as well as water. This has been termed as "right of thirst" by Naser Faruqui (as quoted by Cullet & Gupta) that gives humans and animals the right to quench their thirst from any available water point. It may be noted the miraculous Zamzam well was discovered by the thirsty infant Ismail.
"Narrated Abu Huraira:
Allah's Apostle said, "Do not withhold the superfluous water, for that will prevent people from grazing their cattle"".
Hadith 4:538 (sahih al-Bukhari) also supports the concept of "right of thirst".
"Narrated Abu Huraira:
Allah's Apostle said, "A prostitute was forgiven by Allah, because, passing by a panting dog near a well and seeing that the dog was about to die of thirst, she took off her shoe, and tying it with her head-cover she drew out some water for it. So, Allah forgave her because of that"".
There are several hadith relating to the use of water including the need to conserve water.
Cullet & Gupta cover Islamic water law briefly (pages 4-5). They cite Thomas Naff to the effect that "water is a gift of God, that no individual or ruler can own water". While they do not provide a reference, these can be interpreted/inferred from several texts both in the Qur'an and various hadiths. They also quote Naff & Dellapenna "everyone should have access to water" that appears to be related to or derived from hadiths 3:543 and 4:538.
Islamic water law may be briefly summarized as below:
· Water is not owned by any individual
· Water is to be used for the benefit of the general public including both man & beast
· Limited water rights subject to beneficial use
· Water users should cause no harm to others
"यापो दिव्या उतावा स्रवंति खनित्रिमा उतावा या स्वयार्ण जा
समुद्रार्था या सूचय पावकास्ता आप देवी इह ममावान्तु"
(Yaapo divyaa utavaa sravanti khanitrimaa utavaa yaa swayarn jaa/samudraartha yaa soochayapaavakaasta aap devi iha mamavantu)
"The waters which are from heaven and which flow after being dug and even those that spring by themselves, the bright pure waters which lead to the sea, may those divine waters protect me here": Rig-Veda VII 49.2