Water Rights And Water Law Flashcards
What is the definition of Water Law?
Water law, thus water right, reflect economic socio-political and cultural perceptions of water therefore a water law is different globally (Hodgson, 2006)
From Jampels lecture:
- Water Law is an instrument for institutionalising values into principles and instruments to achieve a specific objective
- it has a long historical development
- results from negotiation processes in which certain values and instruments may emerge as more important, this can results beneficial for society and reach its goal or not
- water law is influenced by envrionmental law, contract law and investment law etc.
- water law is fragmented between nations and within
From chatgpt
Refers to the body of legal principles, rules, and regulations (institutions) that govern the use, management, allocation and protection of water resources, encompassing a wide range of legal issues (including water rights)
What is Water Right?
According to Hogson (2006):
- Used in different context to mean different things
- Because water law varies, thus water rights, reflect economic social and cultural perceptions of water
Simplest conception = the legal right to abstract and use a quantity of water from a natural source such as a river, stream or aquifier. However, it is not solely about the quantity but also about the flow of water and humans may use water as a precursor to abstraction (non-consumptive use)
Complex due to:
- Dynamic Complexity of the qualitative and quantitative aspects of the hydrologic cycle, human intervention in that cycle and the many historical, social, ecological, economic and political circumstances that influence the use of water resources
- Water Law/Rights reflect economic, social and cultural perceptions of water that are in turn shaped by a range of factors
- Geography, climate, availability of water resources
- Each country faces unique water issues
Water Rights are necessary for different things since they are can be part of different water rights regimes.
- the reason lies in the fundamental degree to which such activities are inter-connected
- It’s about water flow rather than quality
- Affect on other water uses
- there can be overlapping regimes..
determined by the different legal systems around the globe. Therefore it is necessary to look at a nation legal systems when looking at water rights
Lecture
- 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 he 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 course 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
What is the difference between The Human Right to Water and Water Rights?
The human right to water is a universal entitlement to access safe and clean water for personal and domestic use (applies only to basic needs). It ensures that everyone, regardless of their socio-economic status, has access to an adequate amount of water for basic needs
Vs
Water Rights are legal entitlements that govern the use and management of water resources for various purposes.
They primarily address allocation, management and utilization of water resources among different actors
What are Modern Water Rights?
According to Hodgson (2006):
The introduction of formal and explicit water rights that clearly specify the volume of water that is subject to each right
- not tied to land
- often transferable, traded on a temporary or permanent basis
Neolib. Approach of letting the market decide the value type of bs
What is the status of Water Rights?
Hodgson, 2006
- Legal Rights: Created pursuant to a country’s formal legal system and have therefore legal consequences
- Capable of being asserted against the state and third parties
- In a dispute a right holder has the right to go to court and it can be enforced through the state’s jurisdiction
- someone without a right is subject to legal action from the right holder and possibly criminal/administrative proceedings
What is a Contractual Water Right?
If a modern water right is a right to remove water from the natural environment, a contractual water right creates an entitlement to receive a delivery of water through artificial structures, water that has previously been removed from the natural environment’
- it follows that the introduction of private expertise and financing in the urban water supply and sanitation through public-private partnerships has l direct relation to the water rights issue
Hodgson, 2006
Explain Traditional Land-Based Approaches to Water Rights
Developed from the European concession
-
Common Law Tradition
- Originated in England, diffused in U.S, Australia, etc.
- Relies on judicial decision and precedents to interpret and develop legal principles
- makes no difference between public and private waters however, it recognises that flowing waters are public
Doctrine of riparianism
governs water rights for landowners whose property borders a river, stream, or other water body. Riparian landowners are entitled to reasonable use of the water on their land, with rights shared proportionally among all riparian owners. The use of water must be reasonable, the
purpose for which it is taken must be connected with the abstracter’s land and the water must be restored to the watercourse substantially undiminished in volume and un-altered in character.
Prior-appropriation Doctrine
allocates water rights based on the principle of priority of beneficial use. Those who first put water to beneficial use have superior rights over later users during times of scarcity. Criticism of this doctrine is that 1. It discourages water savings and 2. Users can continue to seize water as long as a single drop remained in the stream or acquifier
For groundwater under common law
Sometimes the doctrine of capture applies
allows landowners to capture and extract water from underground sources beneath their property without regard to its impact on neighboring users. It contrasts with the principles of reasonable use and correlative rights found in other water rights doctrines. They specify the amount of water that can be substracted (similarity with modern water rights)
California is an example of a state in which both doctrines apply
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Civil Law Tradition
Legal tradition based on Roman law, predominant in most of Europe, japan. It emphasizes comprehensive legal codes and the role of legislation in defining rights and obligations
- makes a differentiation between public and private water
Public = bodies of water considered to be owned by the government and held in trust for public use, everything that is navigable and big lol
Private = lost force during time due to difficulties of accommodating different and competing uses becoming subject to alot of restrictions. water resources located on private property, subject to the control and management of the property owner. Water located below, along or upon privately owned land, freely utilised under certain limitations of statutory nature.
What are Customary or Local Water Laws?
It refers to the legal systems and norms that have developed within specific communities or cultures over time, governance is based on traditional practices, customs, and community agreements (informal).
Unlike formal water rights, Local rights are not legally recognized, are not formally codified by government authorities, and have no regulatory framework
Wtf is Mar del Plata meeting?
The UN water Conference in 1977, a landmark event focuse specifically on water-related issues.
1. Global focus on water issues
2. Declaration of water as a human right,
- for the first time recognized explicitly that access to clean water and sanitation is essential for fulfilling basic human needs and promoting dignity, health, and well-being.
3. Emphasizes the need for Integrated Water Resources Management (IWRM)
4. Launch of the UNWaterProgram
Why is there a need for legal rules over water use and allocation? What does this lead to?
Lecture
- it runs through all human activites and must be regulated
- it leads however, to incompatibility with traditional legal approaches
What does the current water sector reform strive for?
From hodgson 2006:
Water reform stem from the complex dynamic of water as a resource, due to it’s fluidity and constant renewal of the hydrologic cycle + the increasing pressures on water resources => limiting the appropriateness of traditional legal approaches
Formal and explicit water rights clearly specifying the volume of water that is subject to each right, not tied to land and transferable
How did the Human Right to Water develop?
From Gleick 2007
From implicit > explicit
Development Water as a human rights
Covenants and declarations started identifying and declaring human rights
- 1948 Universal Declaration of Human Rights (UDHR)
- 1966 International Covenant of Economic, Social and Cultural Rights (ICESCR)
- 1966 INternational Covenant on Civil and POlitical Rights (ICCPR)
- InterAmerican Convention on Human rights etc. Etc.
All recognized human rights implicitly stating an human right to water
- rights to life
- Rights to enjoyment of a standard of living adequate for health and well-being
- Rights to protection from disease
- Rights to adequate food
Containing evidence supporting the conclusion of water being a fundamental right + a derivative right (Part of other rights)
- water is a necessary condition to meeting other rights
More binding covenants developed
- ICESCR and ICCPR 1966
- Each state should undertake the necessary legislative or other measures to give them practical effect
Explicit recognition of water as a human right
- beginning 1970s
- For example 1977 Mar del PLata water meeting
- Recognised the right to access to water for basic needs
Authors answer
- international human rights laws must be interpreted to include the right to sufficient water at appropriate quality, to satisfy the explicit right to life and broader rights to health and well-being
- This human right to water is strongly supported by General Comment 15 of the United Nations 2002
What are the benefits of an human right to water? And the implications?
5 reasons to acknowledge human right to water
- It encourages the international community and individual governments to renew their efforts to meet basic water needs of their populations
- It pressures to translate the right into specific national and international legal obligations and responsibilities are more likely to occur
- Maintains attention on the state of water management
- It helps focus attention on the need to widely address international watershed disputes and to resolve conflicts over the use of shared water by identifying minimum water requirements and allocations for all basin parties
- It can help set specific priorities for water policy
******************Implications of explicit human rights to water******************
- it doe not imply an unlimited amount if water
- Water is not provided freely
- Water availability is limited by resource constraints, the need to mantains natural ecosystems and economic and political factors
Conclusion = human right to water applies only to basic needs
Drinking, cooking and fundamental domestic uses
Recognized by different covenants and declarations
- 1977 Mar del Plata
- 1986 UN right to Development
- 1992 Earth Summit in Rio de Janeiro
In determining vital human needs special attention is to be paid to providing sufficient water to sustain human life
Is there an human right to water?
Yes, - 28 July 2010: right to safe and clean drinking water and sanitation was recognized by the united nation general assembly UNGA as a human right
- October 2010: the Human Rights council adopts resolution 15/9 affirming “The human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity”
What are the rights of water?
- indigenous water rights
- The Rights of River Approach
- Rivers granted legal personhood
- Example is the 2017 - Whanganui River in New Zealand
- Magpie River with rights including the right to flow, maintain biodiversity be free from pollution and to use
