Topic 3.2: Water Allocation at Basin Level Frank Jaspers

Water Rights

What is the effect of a water right? Water right establishes a legally enforceable expectation of an individual or a group of individuals to use or own water and, if necessary, to exclude other individuals or groups from this ownership or use. It involves duties to respect and means to redress violations.

What is the purpose of a water right system for society? To deal with scarcity Priorities Demand management To create equity and social acceptance To create predictability and to secure investments Administrative clarity (registration) Flexibility and transfer arrangement Environmental management Conservation Social and economic planning and development Cost recovery principle for development and management

Factors of influence for the many different water right systems? Scarcity (sub-tractibility) Physical characteristics Culture and religion Political history and political environment Legal tradition Customary law (everywhere) Roman (civil) law, Common law Islamic law Hindu and Buddhist law

Water right system characteristics (developing countries) Customary water sharing arrangements (nomadic and early sedentary distribution) Imposed (colonial) national water laws (e.g. riparian system, prior appropriation) Post-colonial but similar public systems Influence of privatization efforts (structural adjustments) Stakeholders based systems (“back to the roots”)

Water in the hydrologic cycle

How can a (contemporary) water right be acquired How can a (contemporary) water right be acquired? Systems of acquisition Law Custom Beneficial use (through time) Court order Trade or via the market Government allocation River basin plan Combinations

Legitimate water uses (subject to righting) Consumptive: Drinking Other Domestic Livestock Irrigation Industry Cooling Aquaculture Non-consumptive: Power Generation Transport Recreation Environment&Nature Fishery

Types of water rights Absolute ownership right Absolute right of use ‘Ius utendi et abutendi’ Only restricted by law Absolute right of use Restricted by law, but no ownership Relative right of use Conditions: restricted transfer, effective use, specification of use, attachment to land etc. Permit, concession, license Through administrative allocation

Legal consequences Type Consequence Ownership Right Absolute Use Relative Use Permit, License Trade, transfer Inheritance Collateral Investments Conditions Time restrictions Charges

Legal consequences Type Consequence Ownership Right Absolute Use Relative Use Permit, License Trade, transfer Yes Difficult No Inheritance Some Collateral Investments Conditions Time restrictions Charges

Possible conditions to relative rights or permits Drought regimes Restrictions of proportionality or priority of use Water reservations and water shortage areas Minimum flow requirements Emergency legislation Suspension in times of war/civil strife Effective or beneficial use ‘use it or loose it’ Attachment to land or abstraction point Time restrictions

Water Allocation

Systems of Water Allocation Traditional or evolutionary Appropriation Public allocation Economic allocation Stakeholders based

Traditional water allocation principles Res nullius or ‘water belongs to nobody’ Typical for primary requirements Typical for a nomadic culture Restricted to beneficial and effective use: ‘take or leave it’ Res communis omnium or ‘water belongs to everybody’ Typical for early sedentary agricultural communities Typical for little scarcity Restricted to beneficial and effective use Example: ‘riparian doctrine’ U.K., South Africa Contiguous principle (groundwater)

Appropriation Real estate or ownership rights Water is part of the immobile property. If you own the property you also own the water on it or under it. Typical for communities with well defined and registered properties Vertical real estate perspective Government or state ownership

Appropriation Prior appropriation (in the time) Reaction on scarcity and water shortage Not necessarily attached to land or restricted to beneficial and effective use Involves the legal actions of appropriation and often registration Often involves infrastructure and abstraction points Two systems: Priority of date (1) ‘First come, first served’ Priority of sector/use (2) Hierarchy: e.g.: 1. Drinking water 2. Energy 3. Industry 4. Agriculture Environmental flows: Reserve

Public allocation Proportionality Correlation Typical for water shortage Equity principle Government allocation In volume (through storage) In flow (through abstraction or diversion) Correlation Typical for complex systems of water use (irrigation schemes) Water shortage, effective use, government allocation Criteria: area, crop, family size, number of cattle Equity and efficiency principle

Water allocation principles (continued) Public negotiation Planning by stakeholders Through river basin or irrigation plan Public authorization and granting of permits Market allocation Water as full economic good which can be traded Allocation by highest economic use Combinations!!! Simultaneous application of principles Legal pluralism!!

Legal Pluralism: Multiple systems of informal (legal) instruments are developing in line with the need of the of social entities that are using them in order to deal with growing complexity. Many different systems are in use concurrently in different segments of society or arenas and should be appraised on their functionality. The emphasis is on the informal arrangements that are ruling human relations without formal enforcement mechanisms of a state organization. Key-words: complexity, customary institutions, functionality, plurality, consensus, self-control.

Legal Positivism The state is considered as the lawful organization to exert law enforcement. Only one all inclusive legal system is applied at the same time. Customary law, traditional norms, informal jurisdictions are considered to be part of the legal system as far as binding and consequently enforceable. The State Law is considered as a reflection of societal consensus, is uniform, equally generally binding for governments and citizens, subject to repeatable application and should as such be enforced. Key-words: codification, uniformity, legal security, general binding, enforcement

Expression of water rights Absolute volume Volume per time Abstraction time or time shifts Percentage of flow Water height Water depth N.B. The same water might be subject to various rights, based on different allocation principles (drawing)!!!

Proportional distribution Seasonal agriculture Economic allocation Prior appropriation Forestry Citrus Drinking water industry Mining Priority of use (Primary) Domestic Environment DAM CAPACITY SHARING RESERVOIR 50% probability 70% 80% 90% Fig1: Example of capacity sharing (public private partnership)

Economic Allocation

Relation between price and demand (open market)

Decreasing elasticity for crucial uses

Relation between demand and water price?

Important Statement Water has a social and economic value and should be considered as an economic good in its competing uses?! Cf. Economic allocation of water after reservation for domestic uses and environmental flows (South Africa)

What aspects are applicable to international rivers?

Trans-boundary water allocation Right to an equitable and reasonable share (UN Convention: art 5) Duty not to cause significant harm (UN Convention: art 7) Consistent with the Rio Declaration (1992): “States have … the sovereign right to exploit their own resources pursuant to their own environmental and development policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States

Equitable utilization (art. 6) Natural characteristics of the watercourse Social and economic needs of the states concerned Population dependent on the watercourse Effects of the users in one State on another Existing and potential uses of the watercourse Conservation, protection, development and economy of the water uses; and the costs of measures involved The availability of alternatives, of comparable value, to a particular planned or existing use

Water sharing Criteria: Equal share per country Equal share per unit area Equal share per person. Key parameters: Consider not only the availability of "blue" water, but also of "green" water Establish a “Reserve” of water as a basic entitlement of each country

Water sharing Most equitable: consider all (blue and green) water resources and use basin population as main allocation variable Reach agreement over: 1. The value of green water relative to blue water 2. The fraction of “reserved” water Once basic entitlements have been established any additional water transfers can be negotiated bilaterally.

Sharing benefits Benefit sharing: sharing benefits from optimally used water rather than distributing scarcity! Hydro-solidarity: an acknowledgement by riparian states, water users groups and individuals that they all are dependent on each other, not only now but also in future. It is rational to cooperate!! (The cost of conflict are higher than the benefit from water)