Defining water
rights
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"
An overview of legal
systems
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.
Hindu water law
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
Jewish water law
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".
Islamic water law
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
