PRINCIPLES OF WATER LAW AND ADMINISTRATION

Transcription

1 PRINCIPLES OF WATER LAW AND ADMINISTRATION National and international DANTE A.CAPONERA A. A. BALKEMA / ROTTERDAM / BROOKFIELD /1992

2 Table of contents ACKNOWLEDGEMENTS XDC CHAPTER 1: INTRODUCTION 1 1 Water and the society 1 2 Need for a water policy, legislation and administration 2 3 Interdisciplinary of the subject 4 4 Physical context The hydrologic cycle Definition and analysis of precipitation Analysis of the flow Weather modification 6 5 Socio-economic context Water demand Water pricing Externalities Cost analysis 9 6 Purpose of the book 9 References 9 CHAPTER 2: EARLIEST WATER REGULATIONS AND MANAGEMENT 11 1 Importance of water regulations throughout history 11 2 Difficulty of studying early water regulations 12 3 Development of earliest water law principles 13 4 Ancient Egyptian water regulations and management Earliest dynasties ( BC) Later dynasties ( BC) 14 5 Ancient Mesopotamian water regulations and management Historical development The Hammurabi Code Subsequent codifications Detailed water regulations 17 vn

3 VIH Principles of water law and administration 6 Ancient Hindu water regulations and management General Hindu legal system The water regulations in the Code of Manu 19 7 Ancient Chinese water regulations and management Introduction Water regulations Basic principles 21 8 Hebrew water regulations and management Introduction Importance of water Water law principles Conclusion 23 9 Pre-Columbian water regulations and management Coastal Peru (Inca) Meso-America (Maya-Aztec) Other early systems of water regulations and management General conclusion 25 Notes 25 References 27 CHAPTER 3: ROMAN AND INTERMEDIATE PERIOD 29 1 Introduction 29 2 Roman water law principles Origins and Regal period ( BC) Republican period ( BC) Classification and ownership of water Right to use water Protection from harmful effects of water and control on waterworks and structures Water administration ThePrincipate(27BC-286AD) Classification and ownership of water Right to use water Protection of existing waterrights:the interdicta Protection from harmful effects of water and control on waterworks and structures Water administration The Absolute Monarchy or Late Empire ( AD) Classification and ownership of water Right to use water Protection from harmful effects of water and control on waterworks and structures Water administration 43 3 Intermediate water law principles in Europe ( ) First period (fifth century AD-1158) 43

4 Table of contents DC Introduction Principles of water law under Roman-Barbaric rule The feudal system Water law principles under the feudal system Second period ( ) Introduction Classification and ownership of water Right to use water 48 4 Intermediate water law principles in Ibero-America Early legal principles Water regulations 49 Notes 49 References 53 CHAPTER 4: DEFINrnON AND SOURCES OF WATER LAW 55 1 Introduction 55 2 Content and concept of water law 55 3 Relationship between water law and other legal disciplines Constitutional law Administrative law Civil law Criminal orpenal law Agrarian law Mining law Natural resources and/or environmental law Public health law Other legal disciplines 58 4 Sources of water law 58 5 Legislation in general 59 6 International and interstate agreements 60 7 Customary law 61 8 Case law and arbitral awards 62 9 Doctrine, or scholarly opinion Common law Conclusion 64 References 64 CHAPTER 5: EXISTING SYSTEMS 65 1 Introduction 65 2 Original Roman water law principles and their influence in subsequent legislation 65 3 Customary water law. Its importance 66 4 Water law principles in the Islamic system Introduction Origin and sources of Islamic water law Water ownership andrightof use 69

5 X Principles of water law and administration 4.4 Groundwaterlaw The process of codification and the Ottoman Civil Code 'Mejelle' The Ottoman Civil Code 'Mejelle' Legal status of water Therightto use water Maintenance of waterways The harim Islamic water administration Customary water administration Recent developments in the administration of water Government action in Moslem countries 74 5 Water law principles in civil law countries Introduction The legal status of water resources Therightto use water Water quality and pollution control Wateradministration Conclusion 79 6 Water law principles in common law countries Introduction The legal status of water resources Therightto use water Water quality and pollution control Recent developments of the common law system Wateradministration 84 7 Water law principles in the former Soviet system Fundamentals of socialist water law Legal status of water Therightto use water Order of priorities Harmful effects of water Water quality and pollution control Enforcement Centralized inventory and planning Wateradministration Evolution and trends 88 8 Water law principles in the Hindu subak system of Bali Legal-historical background Definition and origin Organization The legal status of water resources Therightto use water Order of priorities Water quality and pollution control The water distribution system Financial aspects Water law implementation 93

6 Table of contents XI 8.11 The settlement of disputes The statutory subak Conclusion 94 Notes 94 References 95 CHAPTER 6: DEVELOPMENT BY REGION 97 1 Africa Introduction Customary law 9g 1.3 Countries following principles of the civil law system Countries following principles of the common law system Countries following principles of othersystems Countries influenced by principles of the Islamic water law system Asia and the Pacific Introduction Countries following principles of the civil law system Countries following principles of the common law system Australia Bangladesh India Sri Lanka (Ceylon) Other countries Countries following principles of other systems People's Republic of China Japan The Philippines Other countries Wateradministration 108,> 3 Central and South America Introduction Central and South American water law principles Latin American countries Other countries of Central and South America Legal status of water resources Therightto use water Order of priorities Legislation on water use, quality and pollution control Wateradministration Europe Introduction Legal status andrightto use water Water quality and pollution control Institutional framework Federal states Unitary states 118

7 XII Principles ofwater law and administration States undergoing a process of decentralization Basin level United States of America Introduction Federal water law principles State water law principles Riparian water law Appropriation doctrine Groundwatermanagement Conjunctive use of surface and underground water 130 Notes 130 References 132 CHAPTER7: POSSIBLE CONTENTS OF AND REASONS FOR WATER LAW Introduction The contribution of the lawyer Genera] considerations Waterpolicy Collection and use of information Water resources planning Ownershiporotherjuridicalstatusofwater Public waters Private waters Resnullhis Common waters: Commmunity or tribal waters Conclusion Therightto use water Basic concepts Legal regimes governing therightto use waterfreely or by virtue of a simple declaration/registration Free use of water Declaration/registration The permit system Applicability Different types of permit Procedure for granting permits Characteristics of permits and concessions Difference between permits and concessions Common characteristics of permits and concessions Recognition or reallocation of pre-existing water rights Customary and riparian rights Rights under the appropriation doctrine Powers of the administration Reallocation of water Limitations to therightto use Priorities 147

8 Table ofcontents XHI 11 Beneficial uses Water and other natural resources Domestic and municipal uses Agricultural uses Industrial uses Hydropower production Other public uses Conclusion Harmful effects of water Water quality and pollution control Waste and misuse of water Recycling, re-use of water and recharging of aquifers Wastewater and effluent control Health preservation Pollution control Environment protection Underground waters Control and protection of waterworks and structures Protected zones/areas Legislation on financial aspects Implementation of water legislation General remarks Judicial and administrative control over water ownership, use and distribution Protection ofindividualrightsand water rights Administrative procedures for claims against the water administration Water tribunals or courts Penalties and sanctions Interconnection between water law and other legal enactments relevant to water law Customary water law and institutions Water users' associations National water resources administration 160 Notes 160 References 160 CHAPTER 8: WATER RESOURCES PLANNING AND WATER LAW Therationaleof water planning Objectives of a water resources plan Types and characteristics of plans Relationship between water planning and economic and social sectors Methods for planning processes Relevant administrative and institutional issues Administrative and institutional issues 166

9 XTV Principlesof waterlawandadministration 6.2 Other factors contributing to a better administration and planning of water resources 167 Note 167 References 168 CHAPTER 9: NATIONAL WATER RESOURCES ADMINISTRATION Introduction Different types of water administration Institutions according to their powers Institutions according to their functions Institutions according to uses Institutions according to their territorial level of jurisdiction Institutions according to their legal regime Special water development agencies Water users'associations Major issues of water resources administration The need for coordination The question of centralization, decentralization and deconcentration of the water administration The waterrightsadministration The need for a water resources 'regulatory' institution Definitions Major objectives and functions of a regulatory institution The role of water law in institution building A possible institutional solution Institutions at the national level A national water resources council A national water committee or commission A central wateradministration Institutions at the regional, basin, sub-basin and local levels At the regional, basin or sub-basin levels At the local level At the international level Conclusion 181 Notes 181 References 181 CHAPTER 10: INTERNATIONAL WATER RESOURCES LAWIN GENERAL Introduction The concept of'international water resources'and other definitions Historical review The drainage basin concept The expression'international water resources' The sources of international water resources law 186

10 Table ofcontents XV 3.1 Introduction International conventions General conventions Particular conventions International customary water law Codification of international waterresourceslaw The law-making activity of the European Economic Community General principles of international water resources law Resolutions of intergovernmental organizations Judicial decisions Decisions of international courts Arbitral awards Decisions of national tribunals Contributions of publicists and international non-governmental organizations The work of the Institute of International Law The work of the International Law Association The work of the Inter-American Bar Association The work of the Asian-African Legal Consultative Committee The work of the Pan American Union The work of the Council of Europe The work of the International Association for Water Law 196 Notes 197 References 199 CHAPTER 11: INTERNATIONAL WATER RESOURCES LAW- MAJOR ISSUES Boundary demarcation Introduction Boundary on a successive river Boundary on a contiguous river Boundary atthe banks (riverresnullius) Boundary at the banks (river rescomunis) Boundary at one of the banks Boundary at the median line Boundary at the thalweg Natural modifications of the boundary on a contiguous river Boundary on a bridge over a contiguous river Navigation Origins Internationalization of navigation The Congress of Vienna (1815) The Treaty of Paris (1856): The regime of the Danube The regime after TheActofBerlin(1885) The regime after World War I TheregimeestablishedatBarcelona(1921) 209

11 XVI Principles ofwater law and administration Administration of international waterways Evaluation Developments after Barcelona: The Danube The regime after World War H Non-navigational uses of water Introduction Absolute territorial sovereignty Absolute territorial integrity Limited territorial sovereignty and integrity Shared natural resources concept Equitable utilization, apportionment, participation Floating Production ofenergy and other industrial uses Procedural rules Conclusions Harmful effects of water Definition Evolution The emerging rule Quality control of water Definition Evolution The emerging rule Armed conflict Definition Precedents Emerging rule Environmental aspects Definitions Evolution Emerging rules 225 Notes 226 References 227 CHAPTER 12: INTERNATIONAL WATER RESOURCES ADMINISTRATION Introduction Recent institutional developments Institutional developments in Europe The Central Commission for the Rhine The European Commission of the Danube Other commissions Institutional developments in the Americas The International Joint Commission between the USA and Canada The International Boundary and Water Commission between USA and Mexico 232

12 Table afsontgnts XVU The Plata River Basin Other commissions Institutional developments in Africa The Nile Commission Recent basin institutions The Liptaco-GourmaAuthority Other African basin institutions Institutional developments in Asia The Mekong Committee The Indus Commission Mixed commissions between Nepal and India India-Bangladesh Joint Commission The Helmand River Commission Other commissions Evaluation of existing arrangements Objectives and purposes Technical responsibilities Economic and financial responsibilities Legal and administrative responsibilities Possible options Duration, constitution and decision-making procedures Duration Constitution Procedures for decision making Legal status Territorial competence Functions and powers Form Major institutional requirements forrationalinternational water resources administration Economic and financial requirements Prevention and settlement of disputes Conclusion 245 Notes 245 References 246 CHAPTER 13: LEGAL AND INSTITUTIONAL ASPECTS OF GROUNDWATER MANAGEMENT Introduction National level Existing situation Legal needs Metering Exploration or prospecting permits Drillers'licences orpermits 251

13 XVffi Principles ofwater law and administration 2.2 A Modification of existing legislation Water found incidentally International level Introduction Sources and evolution of international groundwater law Major institutional issues Emerging rules Pollution control Existing situation Legal needs Special measures for groundwater pollution control Classification of watercourses and water bodies into categories Permit and concession system Reservation of good quality groundwater for drinking purposes Prohibition of discharges into waters Prohibition of activities on banks and shores Establishment of protected zones or areas Sanitary or public health measures Financial provisions 258 Notes 258 References 260