1. Topic 3.2: Water Allocation at Basin Level
Frank Jaspers

2. Water Rights

3. 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.

4. 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

5. 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

6. 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”)

7. Water in the hydrologic cycle

9. 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

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

11. 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

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

13. 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

14. 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

15. Water Allocation

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

17. 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)

18. 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

19. 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

20. 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

21. 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!!

22. 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.

23. 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

24. 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)!!!

25. 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)

26. Economic Allocation

31. Relation between price and demand (open market)

32. Decreasing elasticity for crucial uses

33. Relation between demand and water price?

34. 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)

35. What aspects are applicable to international rivers?

36. 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

37. 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

39. 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

40. 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.

42. 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)