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From Water to Water Resources Law andBeyondBernard J. Wohlwend aa chemin du Rondeau , 1261 Trélex, Vaud, SwitzerlandPublished online: 22 Jan 2009.

To cite this article: Bernard J. Wohlwend (1981) From Water to Water Resources Law and Beyond, WaterInternational, 6:1, 2-15, DOI: 10.1080/02508068108685888

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From Water to Water Resources *

Law and Beyond by Bernard J. Wohlwend chemin du Rondeau 1261 Trilex, Vaud Switzerland

Editorial Introduction.

To initiate this new Section of the Journal, your Subject-Editor has been requested to present a brief description of the ‘State of the art”on water law and administration, a careful description of the content of the subject and all the different themes in which the main subject can be subdivided so as to show future writers in this Secion the themes on which they can write, an enunciation of the inter-disciplinary links of the subject with other water related sciences and techniques, management problems connected with the subject, and references to recent bibliography on the subject as well as to interna- tional organizations (governmental or not) active in the field.

Readers will no doubt appreciate the difficulty of meeting such objectives within the space allotted for the purpose. Nevertheless, your Subject-Editor has attempted a free generalization in the form of the following article which has been meant as a thought- provoking overview - past, present and future - of our subject on the basis of his own personal views, This article is not intended to raise controversies, but an open debate on the numerous issues, by no means exhaustively covered therein, constitutive of the sub- stance of our subject.

In addition, and by special arrangement with the Executive Board of IWRA, this Section of our Journal will, starting with this issue, serve as well as a news-letter to the members of the International Association for Water Law (AIDA), a non-governmental scholarly body enjoying consultative status with ECOSOC, FAO and UNESCO and having established institutional relationships with, among others, IWRA and the Inter- national Council for Environmental Law (ICEL).

AIDA was founded in 1967 in order to carry on studies and to foster publications for the exchange of information tending to a ) progress in the science of water law, and b ) the development of national water legislation and of the legal aspects of national water ad- ministration and institutions. While its regular members are lawyers specialized in water law, engineers, geologists, agronomists, managers, hydrologists, meteorologists or others who have specialized in water or hydraulic matters have joined, and are invited to join, as associated members.

BERNARD J. WOHLWEND, Section Editor Water Law and Administration

INTRODUCTION

As the set of rules governing man’s use of water resources, the origin of water law can, in fact, be traced back to that of Humanity. Ever since, con- flicts have periodically arisen between the Law of Nature, which water is bound to obey, and the law$ of man which regulate the relationships among the members of ever evolving societies,

their use of natural resources and the effect thereof on their immediate environment.

While the Law of Nature remains immutable, man-made laws have historically developed away from their original natural model to suddenly revert to it shortly before the fall of the civiliza- tion in which they found their expression. This cyclic movement, or cybernetics of the law as one author puts it, is particularly illustrative of the

Water International, 6 (1981) 2-15 0 Elsevier Sequoia S.A., Lausanne - Printed in The Netherlands

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rise and fall of the so-called great hydraulic civili-

za%gay7s rediscovery of the hydrologic cycle and revailing preoccupations with the human en- vironment would seem to indicate that such a re- versidn towards a coiincidence between man-made wate’ and other natural resources laws and the

It may thus be opportune at this juncture to briefly review such an evolution in law making and its main relationships with non-legal disci- pline! so as to take stock of the legal and institu- tional means currently at our disposal and try and foresee corresponding, trends in the coming forms of water resources management.

d Law i f Nature is taking place again.

WATER LAW: A LEGACY

Water as an element of Nature Water is a fascinating commodity. Conceptual-

ly, it has traditionally been considered, together with air, fire (or energy) and earth as one of the four dements constitutive of our Universe. Unlike the other three, the water element distinguishes itself ‘by its plasticity which allows for its trans- migration, as a liquid (precipitation, run-off and percolation), from the state of a quasi-solid (snow) and a solid (ice) to that of a gas (evaporation), or vapours collecting in the atmosphere. Throughout the hydrologic cycle, water is used either as a natural resource such as in streams, lakes or aquifers, or as a product of its combination with other elements such as atmospheric water resources

Reversion towards a coincidence between man-made water and other natural resources laws and the Law of Nature is taking place again

in combination with air, geothermal water re- sources in combination with energy or as soil moisture in combination with earth, or land re- sources. Furthermore, water constitutes the vital element of the biosphere as the sustainer of plant, animal and human life. As a basic natural resource, water constitutes in addition the habitat of other naturial resources such as aquatic plant and animal life. Water may thus be considered simultaneously as a consumer good, a means of production, a primary and a derivate natural resource. As a

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resource, however, water escapes man’s reach; and its treatment, at law, has consistently varied in time in line with the specific nature recognized in it by the legislator in different societal contexts.

Civilizations do however not succeed each other in a linear way. At any given time, there are dif- ferent civilizations, each having reached a particu- lar stage of its development cycle. Neither do two civilizations possess identical life cycles, be it in time or space, so that the coexistence of different legal systems governing water and water resources is by no means surprising.

Water as a common resource In the early stages of development of any given

civilization, man is bound to live in harmony with his environment. Water is recognized as divine or quasi-divine in nature and, rather than trying to vest the resource in his patrimony, man submits to the Law of Nature. Water is thus not subject to appropriation but to community, or public, use. As such, water needs no legal definition, and what is regulated by law are only the modes of using water as it occurs naturally and by reference to the interests of the whole community dependent on the same source of supply. Taking the use of water for irrigation as an example, the stream flow is diverted into a command area within which irrigators form a natural community where- in land and water use rights are allocated on the basis of a pre-established, seasonal, cultivation plan. Each user holds a temporary right to a spe- cific water allocation determined quantitatively and qualitatively as a function of crop/land, irri- gated surface and watering time requirements. As the availability of water to the fields com- mands the membership in the irrigators’ commun- ity, this system may be considered both as consti- tuting and as being regulated as a well defined microecosystem.

Where several intakes on a stream are regulated conjunctively, each command area is then treated as one water user; if the same management system is applied to their aggregate, individual cultivation plans then become the constitutive elements of a larger and integrated, or master, water manage- ment plan.

The importance and actuality of this system should not be overlooked; it is still operating today in such different areas as rural India and China, the Middle East and North Africa, or Spain, for instance, as it was operating in Pre- Columbian South and North America. Millions of people, if not the majority of the World’s population, still traditionally consider water as a gift of Nature in the use of which every man has an equal right.

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Wat r as a commodity I all traditional water law systems, a distinc-

tion is, however, made between water in motion, in a non-measurable quantity, and

from its natural source and con- receptacles. In this case, in-

dee’ , a specific quantity of water is temporarily sep rated from the natural process of the hydro- logi cycle and, having become quantifiable, ac- qui es the status of a legal thing and qualifies for pri ate appropriation. From a natural resource, wat r has, however, become a commodity, and he wh i owns it enjoys, by definition, an exclusive right of use thereon.

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The private dominion over water resources It is this assimilation of water with a commer-

cial) commodity which progressively allows for ownership rights, and hence for exclusive use rights, to ripen and crystalize at the expense of the^ community, or public, interest. The necessity of assigning quantitative limits to the object of legal property thus leads to the institutionaliza- tion - by means of a legal fiction of the tempo- rary coincidence of water with the appurtenant lan into the permanent legal attachment there- of to the under- or overlying riparian estate, a coacept known as Riparianism. Present in all legal systems, this concept is, however, not uniform and suffers a variety of limitations. From a traditional environment, as carried on in English Common Law, for instance, wherein riparianism entails the enjoyment of exclusive use, and not ownership rights, to full ownership, as in the Civil Law sys- tem, wherein water rights intimately attach to riparian land property, this concept has allowed for the institutionalization of the Prior Appropri- ation doctrine of the American West. According to this doctrine water is owned by him who first appropriates it, and this independently of the legal status of the riparian land; accordingly, water rights in this system are transferable sepa- rately from the land on or under which it occurs. To’ express this difference in the legal relationship between land and water resources, an Islamic Law maxim states that either “land and water are married” or that “land and water are single”.

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The public dominion over water resources There have historically been two types of limi-

tations to the individual’s freedom in exercising water rights. All legal systems recognize that, if not all, certain waters are, either by nature or because of their destination, of public use and cannot be abandoned to private appropriation; at the) same time, there must be certain limitations to 1 exclusive individual uses of waters to which

several riparian users have a right. In Roman Law, for instance, water resources were classified either as public waters (res publica) or as community waters (res communis) not subject to private ap- propriation, as unknown property (res nullius) on which use rights and, ultimately, property rights could become perfected by acquisitive prescription or, finally, as private waters (res privata). The Common Law and Civil Law sys- tems have retained a dual classification of public (tidal waters and those subject to public naviga- tion and fishing) and of private waters, while Islamic Law, for instance, still recognizes a cate- gory of community waters (those occurring on Mewat or unknown land, and on Waqf or reli- gious endowment land). In Common Law, public waters have traditionally been considered to vest, as a trust, in the Crown and individual uses there- of made subject to preferential public navigation and fishing rights, while private water rights have

These systems hold in common their negative consequences, . . . they have caused a juridical split between surface and underground water management

been limited by the “natural flow” doctrine and their exercise subjected to the “reasonable use” and “beneficial use” criteria. In Civil Law, how- ever, water uses for public navigation and floating have been appropriated by the State and incorpo- rated into the Public Domain, individual uses thereof being made subject to the prior authori- zation, or Permit System, while ownership rights on private waters were made to remain subject to the private law regime of easements and servitudes. In the United States, a mixed sys- tem of State Public Domain and of Federal Reserved Water Rights was institutionalized for public waters (State and Interstate navigable waters and waters occurring on Federal lands), Riparianism and Prior Appropriation being main- tained for private water uses, respectively, in the Eastern and Western States.

The use-oriented approach There is no intrinsic preference to be given to

one system over the other as each one developed according to particular situations of fact in which it finds its justification. Riparianism has allowed for a flexible and self-regulated water rights ad-

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mini tration under private law within regions wherein water was plentiful; without the entre- preneurial drive inherent in Prior Appropriation, the merican West as well as other water-short areas of the World wherein this doctrine already prevailed much earlier, might never have been developed. What these systems do however hold in c mmon is their negative consequences. They have favoured the individualistic appropriation of a common natural resource; they have allowed for the institutionalization of the public and private water dichotomy; they have caused a juridical split 1 between surface and underground water management; they have dissected the unity of the hydrologic cycle; they have artificially produced concurrent and competitive use-oriented legisla- tions and institutions.

Industrialization, technological development and the transfer from a subsistence to a market economy have thus been conducive to a multipli- catioh of concurrent and competitive water uses which, ultimately, have called for new corrective measures. As water resources were developed and used at an exceedingly fast rate, the water demand increased suddenly; and as water users realized that ‘their resource was becoming quantitatively limittd and qualitatively deteriorated, conven- tional private law rernedies proved inadequate for an effective protection of existing water rights. These factors, together with an increase in devel- opment costs and in private litigation, have called for a more stringent intervention by the State, a slow and difficult process aiming at taking the water- resource further away from the monopoly of the individual user in order to safeguard the public interest.

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State control over water resources Numerous techniques, though all based on a

wider application of the public interest criterion, have been more or less successfully used to this end. With the exception of the Spanish Law system which has traditionally considered that, in addi- tion to Public Domain waters proper, all waters acquire a public status when used for navigation, floating, agriculture and industry, in Civil Law countries the tendency has been to gradually ap- propriate more water into the Public Domain. In France, for instance, a new category of “mixed watercourses” has recently been institutionalized in which water acquires a public status indepen- dently of Public Domain waters on the basis of the public character of its use; in Belgium, owner- ship rights over private surface waters have lately been abolished altogether and replaced by pro- tected use rights, underground waters having however been maintained in their dual public and

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private ownership status; in the Soviet Union, finally, not only water but all natural resources having been made to fall under State ownership, the State operates as the major water producer, supplier and user. In the Common Law countries, and except for a number of States in the United States which have adopted the Public Domain concept of Civil Law, riparianism is similarly being replaced by the Permit System, though not

State control aver water resources use has remained essentially more politically than scientifically oriented

under the State ownership concept, but in accor- dance with that of the Public Trust, itself based on the public interest criterion. I t is on the basis of this concept that water resources have recent- ly been excerpted from the private dominion in such different countries as Israel, Iran, Peru, Tunisia and Indonesia, for instance. As to those South American countries in which water re- sources could not be fully nationalized, agrarian reforms have instituted the so-called “social function” of private ownership, a technique al- lowing for ownership ri to be deprived of their individualistic and e nt.

Whether based on the State ownership or on the Public Trust concepts, State control over water resources use has nevertheless remained essential- ly more politically than sc While allowing for the maxi ment benefits, it has in pcrystalizing a pragmatic and use-oriented manage- ment favouring the depletion and degradation of the resource under the shadow of a “beneficial use” criterion limited to fiinanci benefits. In addition, the rather vague content of the public interest criterion and its generally un- restricted application by States has favoured a feeling of insecurity on the part of water users which is depriving development prospects of their entrepreneurial initiative.

International wafer law Until recently, international water law did not

provide a better water resources management framework. As long as the uses of rivers and lakes remained limited to navigation, floating and fishing, few conflicts of interest pre- vailed, so that the international community could

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establish the principle of “freedom initially restricted to the main-

States, and later extend it and to non-riparian States

ith the advent of hydropower and of con-

in their

municipal land ownership) when located upstream, doctrine of “absolute terri-

international law equivalent natural flow doctrine in municipal law)

downstream; as for States riparian rivers, they divided them among

the deepest navigation channel river was navigable, or along the

if it was not navigable, not to mention introduced in colonial times con-

of one State riparian to a contiguous river sovereignty over the whole width thereof. too, the fiction according to which the

of water is assimilated to that of the riparian land has been conducive, on the basis of the^ principle of equality of right, to apportion- ment treaties as if river water were a permanent and stable commodity.

WATER ECONOMY: A NEW FOUNDATION

The resource-oriented approach Meanwhile, water resources engineers and,

more particularly, water resources economists and planners actively contributed to the develop- meht of the water economy concept which ap- prebends water resources in their entirety and according to which their multiple uses are no longer planned, developed and regulated in isolation but as an integrated whole. Considering the inter- dependance prevailing among all uses of the same water resource and the physical interconnection among atmospheric, surface and underground waters, this concept provides for the establish- ment of water balances, that is the matching of the overall availability of the resource with the global water demand. As a consequence, the con- cept of water management has gradually out- grown that of mere water use practices to englobe the greater part of the hydrologic cycle. From a usel-oriented framework, water management has thus become “resource-oriented”.

The fundamental consequence of this develop- ment has been the recognition of the “unity of the hydrologic cycle” principle and of the surface watershed, later expanded to the drainage basin incorporating both surface and interconnected underground waters, as its physical management unit. As a corollary, water resources planning has assumed the hydrogeographical dimensions of the basin to take the form of a basin plan, or master water resources development plan, which consti- tutes the basic instrument of integrated water resources management.

Institutionally, this approach has allowed for the development of two apparently contradictory tendencies. On the one hand, water resources management has become centralized in parallel with the growing awareness of the national signif- icance of water resources. Such a tendency has usually favoured the vesting of corresponding management prerogatives either with one of the major water user ministries, with a newly created water ministry, or with an interministerial coordi- nation commission or board operating through an independent agency or institute. On the other hand, water resources management has been de- centralized at the basin level with the creation of autonomous basin authorities. In the first case, centralized management has largely failed to be responsive to local realities and needs; in the second case, regional and national requirements have often been sacrificed in favour of local inter- ests. A number of countries have followed either one or the other tendency; few of them have been able to reconcile centralization with decen- tralization; none seems to have resolved the vexing problem of jurisdictional conflicts of competences between water resources management and local or regional administrative areas of jurisdiction.

Such a situation has thus contributed to casting a doubt on the adequacy of the drainage basin as the appropriate water resources management unit. Other factors, such as the occurrence of sur- face water bodies without definable surface water- shed limits, the non-coincidence of certain under- ground water resources with surface basins or their underlying more than one surface watershed, the existence of natural, as well as the develop- ment of artificial inter-basin transfers of water, have led to the reality of the drainage basin con- cept being further challenged.

The natural resources-oriented approach If the necessity of approaching water resources

management on an integrated basis is still general- ly recognized, it has also become evident that water development projects have both direct and indirect effects on the other natural resources, in

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particular on such resources as soil, flora and fauna. A recent tendency has therefore witnessed a move away from the resource-oriented approach in favour of a new “natural resources-oriented” approach.

The merits of this recent development undoubt- edly, find their expression in a greater awareness, on the part of States, of the need for comprehen- sive i management of the national wealth, of the interaction among renewable natural resources and for a streamlining of corresponding policies and plans. A number of States have indeed estab- lished in the recent past centralized institutions such as natural resources ministries, institutes or agencies for this purpose. I t is, however, too early to evaluate the impact of such a trend and, more specifically, the way in which conflicts of compe- tences between such natural resources institutions and ‘existing sectoral ministries, as concern policy forniulation and plan implementation, are being resolved.

Another problem resides in the fact that, as a matter of course, the natural resources-oriented apprbach disregards the watershed or the drainage basin as the basic planning and management unit. While this approach certainly affords an adequate support to rational (development planning at the national and, possibly, at the regional level, the expectancy that a single ministry or agency can effedtively manage the whole spectrum of natural resources at the national level remains to be demonstrated. Decentralization, evidently, consti- tutes the answer but, instead of resting on natural geogfaphical areas or zones, this process is being made to follow an administrative decentralization pattern in fact not dissimilar to that of the earlier use-oriented approaclh.

The environment-oriented approach While the large majority of nations is still

striving at a transfer from a prevailing use-oriented to the resource-oriented management framework, current preoccupations for the protection of the natiqnal natural wealth against the depletion and degradation brought about by unrestrained development have led to the institutionalization of the even more recent “environment-oriented” approach.

No new concept would appear to have generated so soon and so strong an opposition which, in this case, has crystallized into an apparently in- superable “conservation versus development” dilemma. It is most probably true that if the natural resources-oriented approach is likely to lead t o an operational stalemate because it is too

reality of nature, the same undoubtedly holds I ambitious in scope and largely unrelated to the

I Vol. 6(1981) 1 i

true of the environment-oriented approach. If the debate is still going strong as to what natural resources actually are, a definition of the environ- ment as the object of management has little chance of ever being found.

Irrespective of such apparent contradictions, including that of the “transnational resources” versus the “State sovereignty” concepts, the environment-oriented approach is nevertheless contributing immensely to the fundamental change of mentality prerequisite to a reinstate- ment of harmony between Man and Nature. This approach is indeed tending towards intro-

Law is being recognized as the instrument of water resources policy implementation and as the necessary means for the institutionalization of the corresponding organizational and administrative structure

ducing anew a long forgotten qualitative dimen- sion into the dynamics of economic development and is helping Man to remember that, if he is the rightful manipulator of his environment, the human community itself constitutes as well one natural resource.

In the meantime, a number of States have al- ready established environment-oriented institu- tions such as ministries of natural resources and the environment or autonomous environment protection commissions or boards with national standard setting and control prerogatives. The case of Colombia is of particular interest in this connection.

Of a more immediate interest, however, is the new dimension being assumed by the “beneficial use” criterion which, in addition to positive and negative development costs, is now to integrate as well in cost/benefit analyses such intangibles as environmental impact on scenic, cultural and other social values. Furthermore, as water pollu- tion control plays a fundamental role within an environment-oriented management framework, and as qualitative water balances cannot but be established within precise hydrologic units, this approach is in fact contributing to re-establishing the drainage basin as the logical foundation for an integrated management of water resources.

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WATER RESOURCES LAW: A PERSPECTIVE

en slow at adapting to these vari- s and, where it has done so to a it has been more on an essentially

n on a pre-established conceptual hy Law has often appeared more

to, than as an instrument of, ecent tendencies have, however,

to a new multidisciplinary ap-

onding legal and institutional aspects are sively finding their place. While the water has had to learn and become familiar with

the basic principles of water resources gy and of water economy, the water re-

consisted not only in a mere set of pro- paralysing development, but was to

resources management in which

necessary supporting element in the f modern water resources management. to regulating water uses, Law is thus

and as the neces-

organizational and administrative

L w has thus necessarily to be structured in conf rmity with the policy option selected within each national environment. The choice to be made is, h wever, not easy in view of the various prevail- ing 1 pproaches which, it can be safely asserted, do not constitute absolute alternatives but merely tend k ncies, all of which present limitations as well as ositive contributions. The water resource- orie ted approach, for instance, has quantitative- ly d fined the drainage basin as the natural object

is, t ough, not of universal application; the natural reso rces-oriented approach has in turn under- line the fundamental inter-relationship between water and other natural resources, but has thereby lost) to management well defined operational

limits; and while adding further to such a lack of defi ition, the environment-oriented approach has, however, restituted a qualitative and human dimgnsion to water resources management.

of i later resources management, a concept which

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Water resources management T ere is still no consensus today on a defini-

tion of the water resources management concept. Suc a definition is, however, essential if there is to b I any cohesion among its various constitutive elements and if the concept is to find any effec- tive application. The multidisciplinary overture brought about with the abandonment of the use-

oriented approach has nevertheless cast a new light on this fundamental problem which might find its solution in the recent “rational manage- ment” formula. Accordingly, rational manage- ment is to consist in the whole of the measures required to ensure the balanced “conservation, development and use” of water resources.

Though of a cryptic formulation, such a defi- nition has precise implications. In the first place, by including conservation with water resources development and use, the inter-relationship between the qualitative and quantitative aspects of water use is being duly recognized; secondly, what has heretofore been “maximum”deve1op- ment and use becomes “rational” management in relation not only to technical and economic, but to social and cultural factors as well; thirdly, the establishment of quantitative and, more par- ticularly, of qualitative water balances as the texture of water resources planning implies well defined hydrologic areas, or eco-systems, as basic planning units; and, finally, as water bal- ances constitute the dynamic foundation of water resources planning, the basin plan becomes the basic instrument of such a rational water resources management.

The drainage basin as basic management unit Viewed in such a perspective, the object of

management becomes adequately defined as the whole of the water resources occurring within the drainage basin which, as a physical container of its own hydrologic cycle, can be institution- alized as the resting point of current tendencies towards a regionalization of water resources management and as the centralization versus de- centralization alternative.

While it is evident that the drainage basin con- cept does not liave universal application, in partic- ular to such cases as coastal streams not showing precise watershed limits or as underground water resources not connected with a surface basin for instance, the same approach remains equally valid in the sense that water balances for their integrated whole necessarily rest, in the first instance, on the water economy of the component basins or corresponding water resources management areas or zones. Applied with flexibility, the concept is neither invalidated in the case of sub-basin man- agement units, provided corresponding manage- ment plans constitute, in their aggregate, a true reflection of the basin water economy.

The basin plan thus assumes a double nature: as the balance-sheet of the basin water economy, it constitutes, on the one hand, the technical basis on which policy decisions are made and, once ap- proved, on the other hand, it then serves as the

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frame of reference for policy implementation. In other words, the basin plan - or its equivalent - fundtions as the frame of reference both for activ- ities~ preparatory to management and to manage- ment operations proper.

If i the basin plan ultimately constitutes the sub- stance of the basin water resources policy, its actu’ lization requires a corresponding legal and institutional framework. And here too, it is the basin plan that affords the adequate frame of reference to a water rights administration con- sistent with rational water resources management objectives.

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The legal rkgime of water resources and water righ ts

If water rights are to be administered, the re- source on which these are exercised necessarily requires, one way or the other, to enter the realm of a definition. Until now assimilated to the riparian land, water resources have in fact acquired a dual legal status of public and private property whiah, on the basis of the public interest criterion, tends to be unified under the public status at the expense of private ownership or quasi-ownership rights. While such a tendency is almost unanimous- ly recognized by national authorities as justified today, it is at the same time strongly resisted by water users who tend to feel deprived of their resource in favour of an anonymous and concur- rent authority, the State, apparently vested with discretionary powers.

The Public Trust and the community interest criteria: At the basin level, however, the public interest significance of water resources is better unddrstood by water users who, as they depend on the same source of supply, can recognize themselves as the members of an identified basin community. As a result, the Public Trust concept currently developed at the national level could find an immediate application at the basin - or other water resources management area - level, and the public interest criterion given the readily unddrstandable and practical limits of the “basin community interest”. By adding a reasonable degree of people’s participation in basin manage- ment, water users would also be bound to feel diredtly concerned with the necessity of achiev- ing the rational management of a natural resource which they de facto, and could therefore de jure,

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The beneficial use criterion: Once the resource is recognized as having a Public Trust status, it is no longer subject to appropriation, be it private or public, but to rights of use exclusively. It is

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generally accepted that, to be recognized and protected, water rights are to be beneficial. Whereas, so far, the beneficial character of water rights has been measured by reference to the economic benefits they generate, and although more recently their environmental impact is being taken into account as well, related procedures have usually remained more a function of political incidences than of technical and economic reali- ties. If measured against a basin plan however, the beneficial use criterion acquires a completely new dimension in which, though certainly not totally absent, the political bias is nevertheless strongly conditioned by clearly identified tech- nical, economic and socio-cultural requirements.

An immediate consequence of such an intimate connection between the beneficial character of each water use and a pre-existing basin plan is that, instead of legally attaching either to the riparian land or to the person of the user, water rights are made to attach to the very purpose of their use. In other words, water rights become established and protected as soon and for as long as they conform to the beneficial character of the particular use for which they are exercised, and this not on an arbitrary basis but in accordance with planned objectives.

The prior authorization or Permit System: Ideally, every single use of water within the basin or water resources management area ought thus to come under permanent control so that its beneficial character could be monitored. It is, though, evident that, on consideration of mere administrative convenience, such a proposal would not be realistic. It is generally recognized as well that limited individual uses of water for domestic and household purposes are bound to have an insignificant effect on the water resources of the basin so that the existing riparian system, if limited to water use rights, need not be sub- stantially modified. Nevertheless, since the aggregate of such uses may, in certain cases, have an effect on the water economy of the basin, these should all the same be subject to basin com- munity interest limitations. To this end, their registration, though declaratory and not constitu- tive of right in this case, with the water resources authority, should nevertheless be provided for so that, if commanded by water balance require- ments, these can similarly be interfered with.

As to all other water uses, whether consump- tive or not, the only way to effectively monitor their beneficial character is by subjecting them to the prior authorization, or Permit System, a pro- cedure tending in fact toward finding general ap- plication in most countries. If implemented in

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with the basin interest criterion and of the water economy concept, such can no longer be identified with what

to by those who oppose it as disposal of water re- the case in the early

Not only does from a quasi-

therkfore in the fact that the determinent criterion of deneficial use cannot any longer be applied arbitrarily, but that it finds its consistence in each

by reference to a pre-established basin plan the case may be, to a sub-basin or even to a

plan which, however, necessarily conforms pre-existing basin plan. By virtue of its

based equity and of its inherent permit system applied within such a

constitutes the adequate instrument for a water rights administration con- sistent with rational water resources management objectives.

The terms and conditions o f waterrights: Given the fast changing conditions which characterize a dyn mic water resources management process, the b eneficial character of water uses is nonethe- less bound to vary both in time and substance. It necessarily follows that water rights cannot be allowed to acquire a permanent nature, nor can they be maintained unaltered when the particular conditions and circumstances on the basis of whi h they were allocated have become sub- stan ially modified.

T L e conditions governing water rights are inti- mately related to the corresponding purpose of use and cover, among other things, the type, mode, place, quantity and quality of use. The per- mit ought therefore to stipulate corresponding data and norms, not only to ensure the beneficial character of the use concerned, but also to pre-

e

vent in general terms the misuse, waste or pollu- tion of water and to promote the reuse thereof in order to achieve maximum efficiency in basin water resources management. The water use per- mit is in addition to provide beneficiaries with the necessary information as to when, on the basis of what circumstances and under what conditions their rights may be suspended, modified or can- celled, with o i without compensation, as to water pricing conditions where applicable, and as to the penalties sanctioning the non-observance of these conditions of use.

With respect to the duration of water rights, most permit systems provide for medium as well as for long-term uses, depending on the particular circumstances and on imperatives of administra- tive convenience, and for the conditions govern- ing their renewal and transfer. It should be re- membered in this connection that the respon- sible administrative authority is itself bound by the terms of the corresponding basin plan and that, conversely, water users depend on that same plan as the means to ensure the protection of their rights and interests. Security of right is thus achieved with maximum flexibility in that admin- istrative interference with existing rights needs to be justified and that water right holders are simul- taneously entitled to the modification of the terms and conditions of their authorized use whenever justified or to have their permit renewed when- ever the conditions and circumstances on the basis of which their right was granted have not been substantially modified.

Finally, as water rights attach to the established purpose of use, it follows that water use permits ought to be freely transferable in time or space to the extent that their original purpose of use is not substantially modified thereby.

Water pollution control and environment pro- tection

The recent and alarming degradation of water resulting from the excessive use of the resource, be it for beneficial use or for the disposal of wastes, has contributed significantly to adding a qualitative dimension to those measures constitu- tive of rational water resources management. Water pollution has, however, soon appeared to be a problem of a relative nature, one of different quality levels the acceptance whereof is bound to vary in time and place as well as with the various types of water use. As the only practical means to determine such quality levels consists in the com- putation of water quality balances, the drainage basin or water resources management area has necessarily been recognized as the corresponding hydrologic management base.

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In addition to the quantitative limits imposed on water uses so as to contain an ever increasing water demand, water quality control imperatives have 1 thus provided the State with a further and better understandable means of intervention. As water pollution originates essentially from man's use of the resource, ift follows that each individual water use ought to be controlled, and this not only , for necessary quality monitoring purposes, but also with a view to the prevention of future, as well as the abatement of existing, water pollution.

If the permit system allows for the quantita- tive oontrol of water resources use, it can similar- ly serve water quality management objectives. States which have launched water pollution con- trol programmes have, in fact, institutionalized a system of effluent discharge authorizations, licences or concessions. It has, however, soon been recognized that water pollution control measures, if applied restrictively, are bound to have an un- desirable paralysing effect on economic develop- ment, so that their objective ought to bear less on the reintegration of polluted water resources into their natural quality than on the regulation, with maximum flexibility, of permissible pollution levels. In addition to effluent discharge authori- zations which, therefore, should be governed by terms and conditions similar to those of water use permits, it is nonetheless essential that water use permits themselves contain in their terms and conditions of use such provisions as are required to ensure that their beneficial use character is inclusive of the required qualitative dimension.

If water pollution control imperatives have been among the chief elements to prompt the envirdnment-oriented approach, they have cer- tainly not been the only ones. The natural harm- ful effects of water such as floods, soil erosion and salination, for instance, and those caused by man as a consequence of large-scale water re- sources development projects have not contrib- uted the least to the understanding of the impact that the inter-play among natural resources directly or indirectly has, or can have on the en- vironment. Whereas protection measures against natural ecological degradations such as flood con- trol, embankment protection, land reclamation or watershed managemeint works for instance have always constituted an integral part of water re- sources development activities, it is only recently that the negative effects of technically and eco- nomically feasible and apparently innocuous de- velopment projects have come to be taken into consideration as well. The elaboration of environ- mentdl impact statements prior to the implemen- tation of such projects is in fact becoming of gen- eral application.

While the merits of current environment pro- tection preoccupations are beyond doubt, a prac- tical difficulty nevertheless arises in connection with the fact that, on the one hand, impact state- ments limited to the immediate vicinity of a par- ticular project are bound to ignore more remote but nonetheless important ecological distortions and that, on the other hand, in most cases the consideration of all related environmental ele- ments does render the analysis incapable of being contained within reasonable spatial and economic limits.

Considering not only the principle of the unity of the hydrologic cycle, but that within such a cycle or sub-cycle water resources constitute a real physical link among almost all, if not all, natural resources comprised within a defined geo- graphical extension, it may not be unreasonable to suggest that environmentalists give due consid- eration to the convenience of envisaging the drainage basin, be it only conceptually, as a com- prehensive eco-system and as the basic frame of reference for both micro and macro ecological management. This is, however, not to suggest that ecological management should substitute the still evolving resource-oriented approach; although the possibility should not be excluded for the future, prevailing technological and economic considera- tions would nevertheless suggest that, in the meantime, the rational management of each natural resource, or of a simple combination thereof, including appropriate ecological consid- erations, will adequately contribute, in the aggre- gate, to the maintenance of an acceptable human environment.

The institutional framework In the large majority of cases, it would appear

that defective water resources management rests more on the lack of an appropriate institutional framework than on that of legislative provisions. The problem is, though, fundamental in that, if legislation is needed to translate policy decisions into action, the law will remain dead-letter unless there are adequate institutions empowered to implement it.

As a matter of fact, institutional reforms have often preceded improvements of substantive law. These reforms have taken a variety of forms, characterized, however, by their essentially admin- istrative nature. With the emergence of State con- trol over water resources, the management func- tions hitherto assumed in parallel by a variety of sectoral government departments was, in a first stage, centralized into a single organizational structure or unit charged with the formulation and implementation of a national water resources

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onceived at the national level, such a , however, often ignore local needs and

ances so that, in a second stage, local pressures called for a decentralization resources management. An administra-

in turn allowed for con- central and local govern-

rities to crystallize and, in a third stage, lization to be sought as a means to

with decentralization. ever, followed two com-

rent directions. On the one hand, es management has been institution- tate or provincial level, that is, with- as of jurisdiction grouping a num-

local governments; on the other hand, alization has been based on the river, or ge, basin area and water resources manage-

Recent advances in international law doctrine.. . have served as a conceptual model for the development of the basin water resources management approach

entrusted to technical basin agencies operat- of political boundaries. If the

ignored the reality of the second one has given rise to

conflict of competences and these newly

Th basin water resources management organi- zat on: As an essentially technical and objective ins I rument for the balanced administration of

water rights, the basin plan should similarly serve as the frame of reference for the organization and functioning of the corresponding institutional framework. While the unity of the hydrologic cycle concept logically calls for the corollary prin- ciple of the “unity of the water resources admini- stration”, unity should, however, not be conceived in terms of structure, but functionally. According- ly, and although the rational management of basin water resources ought to devolve upon a single basin agency, activities preparatory to man- agement - that is, plan formulation-and manage- ment operations proper-that is, plan implementa- tion-should therefore involve the active participa- tion of all technical, administrative as well as poli- tical units concerned with the water resources of the basin. Furthermore, to be consistent with the now generally accepted principle of “people’s par- ticipation”, public and private interests concerned should be adequately represented, and their parti- cipation in basin management institutionalized according to what one author has labelled the “water parliament” concept.

Based on such premises, the basin water re- sources management organization should thus consist of a basin agency, a multidisciplinary co- ordinating board or commission, all local govern- ment units and in local water users’ organizations concerned, each institution being vested with one or more specific management activity. The basin agency should be primarily responsible for the coordination and integration of all sectoral inputs into a basin plan which it should then refer to the coordinating board or commission prior to the submission thereof to the competent political authority. It is such a board or commission that should integrate all representatives of the techni- cal, economic, social, political and local interests concerned. Once the plan has been approved, each local government unit, public and private interest group concerned should then be entrusted with the implementation, under the technical control of the basin agency, of that part of the plan that falls within its respective field of com- petence and area of jurisdiction. Within such a framework, the basin agency operates thus es- sentially as a planning and regulatory body and not as a concurrent development agency, except that it is then called upon to perform any addi- tional activity not otherwise undertaken by an existing institution, such as, for instance, water rights administration.

By clearly separating the planning, policy- making and plan implementation functions, it is therefore possible to make use of the basin plan as the frame of reference for the definition of cor- responding functions and powers and to achieve,

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with such an organization, a balance between functional centralization and administrative de-

while contributing significantly to of competences as well as of

Hori ’ ontal integration: Rational water resources management at the river basin, drainage basin or statutory water resources management area level consfitutes but one element of economic develop- men4 planning at the local, state or provincial and natidnal level. Furthermore, if conflicts of juris- diction are present within individual basins, the same holds even truer in the case of inter-provincial or inter-state basins.

Hqrizontal integration calls for individual basin plans to be integrated into the relevant local, provincial or state economic development plan ; conversely, individual basin plans ought to be formulated in accordance with corresponding policies. Institutionally, these requirements call for some form of organizational link between the various basin organizations and the local, provin- cial or state and national planning authorities con- cernqd. As a matter of fact, basin water resources management organizations can afford substantial readd-made inputs to local provincial or state and natiohal economic development planning.

As to the institutional problem posed by inter- provibcial or inter-state basin management, it is said to have reached a particular degree of com- plexity in federal States because of the sovereign or quasi-sovereign status of their component prov- inces or states. In practice, however, the situation is not conceptually different in unitary States wherein local governments have often proved to be in a position to render central government intervention or mediation ineffective. Neverthe- less, it is the experience of federal States that has been instrumental in the institutionalization of the drainage basin as the means to technically contdin vested political interests in inter-provin- cia1 or inter-state water resources management. Unlike unitary States wherein the solution to conflicting local water resources management interests has generally been for the State to simply take over multi-jurisdictional basin man- agement as a central government undertaking, in federal States the conclusion of inter-provincial or inter-state agreements or compacts has been the necessary solution, a procedure more respect- ful of local interests and of the “water parlia- ment” concept. As this procedure constitutes in fact a projection of the regular basin water re- sources management framework at the multi- jurisdictional basin level, there would apparently be no1 reason why the same approach could not be

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followed by unitary States, provided however inter-jurisdictional basins are similarly institution- alized as technical management units indepen- dently of local areas of administrative jurisdiction and that central government arbitration is made compulsory only upon failure on the part of the local governments concerned to reach a negotiated settlement.

Vertical integration: If the drainage concept allows for a flexible horizontal integration of the water resources management function, the cor- responding organization could similarly satisfy vertical integration requirements. As the meeting point of technical needs and political interests, the drainage basin unit constitutes as well the focal point at which local and national water re- sources management requirements meet.

A prerequisite to vertical integration is for water resources management functions and powers to be adequately defined as well, both at the local and at the national level. For the sake of consistency, the basin water resources organiza- tion should here too serve as the institutional model. At the local level, water users ought to be organized into water users’ associations with a general meeting of members operating as the policy-making authority and with a commis- sioned manager, or water master, entrusted with the planning and implementation of relevant water use plans. At the national level, one gov- ernment unit ought to be correspondingly insti- tutionalized as the central water resources planning and regulatory agency, while an inter-depart- mental board or commission duly representing as well relevant public and private interest groups ought to be established and entrusted with water resources policy-making functions.

Vertical integration provides then for national planning to be consistent with regional and local needs, and for water resources management plans to be implemented at the local and regional level in harmony with national economic development policies.

International water resources law If, at an early stage, international water law did

borrow from municipal law concepts, recent ad- vances in international law doctrine and, even more recently, in positive international water resources law, have in fact served as a conceptual model for the development of the basin water resources management approach. This has been due to the work of such scholarly bodies as the Institut de droit international and, more particu- larly, the International Law Association which, in 1966, adopted the now famous Helsinki Rules on the use of international water resources.

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lthough the Helsinki Rules cannot be consid- les of international law proper as they

te from a private organization and not authorized body representative of the

onal community, they do nevertheless el guidelines which have actually been recently by several international basin

d which the International Law Commis- ations is now actively consid-

rt of its work on the codification of

ef among these Rules are those defining, at onal drainage basin and the qual- f “equitable utilization”, as op- titative one of equitable appor-

with its underlying concept of est”, as opposed to absolute ty or integrity, thereby mark-

international water to inter- rces law. The weaknesses of

inki Rules remain, however, the exclusion of underground waters not surface waters of the basin,

lure to include water quality among the ts constitutive of the equitable utilization

and of formally institutionalizing the n as the frame of reference for the de-

ter ination of the beneficial character of basin wat r resources utilizations, and the absence of pro isions on institutional requirements for in- ter ational water resources management.

S‘nce 1966, however, the ILA has been pur- sui g its work in formulating further rules on

sources and on the legal rCgime of international wat r resources management, in particular in such fie1 s as flood control, the pollution of coastal are s from inland sources, underground water util’zations and the interconnection between water and other natural resources utilizations.

the 1 I administration of international water re-

i CO CLUDING REMARKS: TOWARDS A NEW LA t D USE PLANNING FRAMEWORK

The last three decades have witnessed a funda- me tal conceptual shift in water resources man- age ent which, although prompted by necessities of technical and economic nature, is deeply af- fect’ng corresponding legal and institutional fra eworks. The extremely rapid pace at which diff rent management approaches have come into bei g to apparently cancel each other has how- eve created a state of flux in which it has become diff 1 cult to identify adequate legal concepts.

While none of these approaches can be said to con titute absolute solutions to current water re- sources management problems, all of them are b

nevertheless contributing to transforming earlier legal and institutional frameworks resting essen- tially on grounds of administrative convenience into a conceptual management system legally consistent with prevailing technical and economic realities.

A major common tendency has been to rein- state water resources into the natural legal con- text of a common good and thus to give the ob- ject of management a precise legal definition in conformity with the scientific reality of the hydrologic cycle. As a consequence, the concept of the Public Trust is gaining momentum by op- position to that of private and public ownership in water resources; the public interest criterion is being reduced to that of the community “in the water” interest; the beneficial use criterion is acquiring an enlarged dimension consistent with water quality and environment protection re- quirements; and water use rights are progressive- ly becoming free of their real or personal bond to attach to their purpose of use in accordance with a pre-established water resources management plan which, itself, is to serve as the frame of reference for corresponding State control mea- sures.

While the basin approach is rightly said not to have universal application, the fundamental ad- vantage of the drainage basin or statutory water resources management area concept nevertheless affords water resources management a natural and self-contained operational base which can, to a large extent, adequately accommodate both the inter-relationship between water and the other natural resources as well as corresponding en- vironment protection requirements. As a matter of fact, the drainage basin could well constitute the ideal eco-system needed as the so far undefined operational base of the natural resources-oriented, or even of the environment-oriented approaches.

Whether these approaches can be conducive to operational reality in the near future still remains to be demonstrated. In the meantime, however, a growing economic imbalance between urban and rural areas of zones has led to the revival of the land use planning concept which tends to inte- grate urban planning with the improvement of land use practices into a regional physical plan- ning perspective. The process is not new, but while it was originally used to foster urban and industrial development, it is now turning towards rural space conservation and environment pro- tection.

In this case too, current trends seem to follow more an ad hoc and administrative, than a pre- planned and scientifically based course consonant with natural requirements. Indeed, zoning is

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usualy enforced at random and made to coincide with local political areas of jurisdiction rather tha with the physical limits of natural eco-sys- tems. Considering, on the one hand, the intimate con ection between land and water resources and, on the other hand, that these two natural re- sou ces constitute the physical base on which human life and activities necessarily rest, it fol- low that their conjunctive management would bettl t r support regional development planning.

An extension of the rational water resources management concept to the conjunctive man- agement of land and water resources could thus provide land use planning with a sound opera- tional base. In this case, the basin agency would become a land use planning agency operating on the basis of an integrated land and water re- sources management plan. And the subsequent addition to such an agency of similar manage- ment functions in respect of other natural re- sources such as flora and fauna would progress- ively lend itself to reaching the objective im- plicit in the natural resources-oriented approach as well as in the environment-oriented approach.

n n 4

SELECTED BIBLIOGRAPHY

1

2

3

4

5

6

7

8

9

10 11

12

13

14

15

, 16

I

I

Legal Aspects of the Hydroelectric Development of Rivers and Lakes of Common Interest, United Nations, Doc. E/ECE/136, Geneva, Switzerland, 1952 Integrated River Basin Development, United Nations, Doc. E/3066. New York, U.S.A., 1958 Lagislative Texts and Treaty Provisions Concerning the Utiliza- tion of International Rivers for Other Purposes Than Naviga- tion, United Nations, Doc. ST/LEG/SER.B/12, New York, U.S.A., 1963 Apercu de legislation sanitaire Compare': Lutte contre la pol- lution de l'eau, WHO, Geneva, Switzerland, 196 7 The Law o f International Drainage Basins, New York Uni- versity School of Law, Oceana Publ. Inc., Dobbs Ferry, New York,U.S.A., 1967 (A. H.Garretson et a1.) The River Basin in Law and History, Nighoff Publ., The Hague, 1967 (L. A. Teclaff) Ist International Conference on Water Law and Administra- ti n, AIDA Annales Juris Aquarum I, Mendoza, Argentina, 1468 Water Legislation in Asia and the Far East, Vol. 1 & 2, United Nations, ECAFE, Bangkok, Thailand, 1967 & 1968 (D. A. Caponera) Water Resources Law and Policy in the Soviet Union, Water Resources Centre, The University of Wisconsin Press, Madison, Milwaukee and London, 1971 (I. R. Fox & 0. Kolbazov) River Basin Management, United Nations, New York, 1971 Guidelines for the Drafting of Water Codes, United Nations, ECAFE, Bangkok, Thailand, 1973 (S. D. Clark) A Summary Digest of State Water Laws, National Water Com- mission, Arlington, Na., U.S.A., 1973 Water Laws in Moslem Countries, FAO Irrigation and Drainage Paper No. 20/1 & 20/2, Rome, Italy, 1973 & 1976 (D. A. Caponera) Water Legislation in the Member Countries of the Andean Pact, Logan University, Utah, U.S.A., 1974 National Systems of Water Administration, United Nations, New York, U.S.A., 1974 Abstraction and Use of Water: A Comparison of Legal Re'-

gimes, United Nations, Doc. ST/ECA/154, New York, U.S.A., 1975 (L. A. Teclaff)

17 Legislation de Aguas en America Central, Caribe y Mexico, FAO Legislative Study No. 8, Rome, Italy, 1975

18 Water Law in Selected European Countries, Vol. 1, FAO Legislative Study No. 10, Rome, Italy, 1975

19 El Derecho y la Administracion de Aguas en Ibero America, Conference on Global Water Law Systems, Valencia, Spain, 1975 (J. Lopez)

20 A Legal and Institutional Framework for Natural Resources Management, FAO Legislative Study No. 9, Rome, Italy, 1975(G.Cano)

21 Management o f International Water Resources: Institutional and Legal Aspects, United Nations, Doc. ST/ECA/5, New York, U.S.A., 1975 (R. D. Hayton)

22 Proceedings of the Conference on Global Water Law Systems, Vol. I - IV, Valencia, Spain, Publ. Colorado State University, Fort Collins, Colorado, U.S.A., 1976 (G. E. Radosevich)

23 2nd International Conference on Water Law and Administra- tion, AIDA Annales Juris Aquarum I I , Vol. I - III, Caracas, Venezuela, 1976

24 Legal and Institutional Response to Growing Water Demand, FAO Legislative Study No. 14, Rome, Italy, 1977 (L. A. Teclaff)

2 5 Report of the United Nations Water Conference, Mar del Plata, Argentina, United Nations Doc. I/CONF.70/29, New York, U.S.A., 1977

26 Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, FAO Legislative Study No. 15, Rome, Italy, 1978

27 Proceedings of the Inter-Regional Seminar on Water Resources Management, New Delhi, India, United Nations, New York, U.S.A., 1979

28 Water Law in Selected African Countries, FAO Legislative Study No. 17, Rome, Italy, 1979

INTERNATIONAL ORGANIZATIONS ACTIVE

MINISTRATION IN THE FIELD OF WATER LAW AND AD-

1 United Nations Secretariat, Center for Natural Resources Energy and Transport (CNRET) and the Regional Economic Commissions:

water for energy, transport and industry, underground waters, international water resources (CNRET); water resources law inventories (ESCAP, ECLA, ECA); water pollution and international water resources in Europe (ECE).

codification of the law relating to international water 2 United Nations International Law Commission:

resources. 3 Svecialized Aaencies of the United Nations:

I

FAO : water resources law inventories, interna- tional water resources, water resources use for food and agriculture WHO : water pollution control, water resources for domestic and municipal uses UNESCO : international hydrological decade, science and education in water resources matters WMO IAEA UNDP : legal and institutional aspects of interna- tional water resources development projects IBRD : legal and institutional aspects of water re- sources development financing

Committee on the use of international water resources

legal and institutional aspects of national water resources management

6 International Union for the Consewation o f Nature (IUCN): water and the environment

7 International Council for Environmental Law (ICEL): water and the environment

: water in the atmosphere : water and the use of radioisotopes

4 International Law Association (ILA):

5 International Association for Water Law (AIDA):

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