Water Law

Given the prime importance of water in all human activities, available water resources need to be protected, conserved, and managed in terms of both quantity and quality, for which water legislation becomes critical. Two important issues water law deals with are the ownership of water resources and the nature and distribution of water rights (which are usually usufructuary rights).

Early codifications related to water are found in the Pharaonic Water Regulations (of ancient Egypt), in the Laws of Manu (or Manava-Dharma-Shastra) in India, in the Hammurabi Code (of Babylon), in Chinese water regulations, and in Roman and Moslem law. The philosophy of the early water regulations depended (as it still does today) on geo-climatologic and physical factors, as well as on the social, technical, economic, and political situation of the countries or areas concerned. Thus, in regions where water was abundant, water regulations were largely directed toward defense against the harmful effects of water (e.g., flood control); in areas where water was scarce, regulations were concerned with the need to conserve available water supplies and with efficiency in allocation.

The old water codifications are not just of historical interest, but have also had considerable influence on current legal regimes in water. For instance, the principles of early Chinese water law (which are based on a belief of a close inter-connection between the human order and the natural cosmic order) have influenced water regulations in China, Japan, Korea, and Vietnam, at least until recently. But it is ancient Roman law that has exerted the greatest influence on the legislation of practically all modern nations. Hence, it is useful to briefly consider the form that it took.

Early Roman law recognized three classes of water rights—private, common and public. Under private rights, the owner of the land owned everything located above and below the land. This was the precursor to the riparian doctrine now followed in many countries, according to which use of such waters was private, unlimited and unrestricted, subject to sale, acquisition or transfer of the land over or under which the waters are located. That is, the riparian doctrine links control over water to control over land. Common rights permitted the use of water that was not yet occupied or without any owner to everyone without any limit or permission. In the case of public water (i.e., water owned by the state), use was subject to the state's control.

The doctrine of public trust, which is found today in some countries, is derived from this. The idea here is that the particular characteristics of water resources (e.g., its unbounded nature) and its importance in different facets of life mean that it is not justified to make it an object of private ownership. Instead, water should be included under the public domain, which implies that the state should protect the resource for enjoyment by the general public, rather than permit its use for private ownership or commercial purposes.

These early Roman principles took three major directions. The first is found in a number of European countries such as Spain, France, and Italy as well as Cambodia, Laos, and Indonesia. Water law in these countries derives from the Napoleon Code (a code of law adopted in France in 1804). Water could be public (subject to government control) or private (freely utilizable on the basis of the riparian doctrine).

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