Modern Water Rights

The vital importance of water to human activity is such that most societies and cultures have sought to establish legal rules over its use and allocation. In most jurisdictions legal rights to water have been linked to land tenure and ownership rights. A number of countries have recently undertaken substantive water law reforms, usually involving the introduction of formal and explicit water rights that clearly specify the volume of water that is subject to each right ("modern water rights"), together with institutional arrangements for their allocation, registration, monitoring and enforcement. Modern water rights are not intrinsically tied to specific land plots, are often transferable and available to be traded on a temporary or permament basis. This book reviews international experiences of the introduction and use of modern water rights. It is based on a survey of relevant primary and secondary legislation, published literature, internet sources and practical experience.

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Water resources were central to England's precocious economic development in the thirteenth and sixteenth centuries, and then again in the industrial, transport, and urban revolutions of the late eighteenth and early nineteenth centuries. Each of these periods saw a great deal of legal conflict over water rights, often between domestic, agricultural, and manufacturing interests competing for access to flowing water. From 1750 the common-law courts developed a large but unstable body of legal doctrine, specifying strong property rights in flowing water attached to riparian possession, and also limited rights to surface and underground waters. The new water doctrines were built from older concepts of common goods and the natural rights of ownership, deriving from Roman and Civilian law, together with the English sources of Bracton and Blackstone. Water law is one of the most Romanesque parts of English law, demonstrating the extent to which Common and Civilian law have commingled. Water law stands as a refutation of the still-common belief that English and European law parted ways irreversibly in the twelfth century. Getzler also describes the economic as well as the legal history of water use from early times, and examines the classical problem of the relationship between law and economic development. He suggests that water law was shaped both by the impact of technological innovations and by economic ideology, but above all by legalism.

"Water is not only a source of life and culture. It is also a source of power, conflicting interests and identity battles. Rights to materially access, culturally organize and politically control water resources are poorly understood by mainstream scientific approaches and hardly addressed by current normative frameworks. These issues become even more challenging when law and policy-makers and dominant power groups try to grasp, contain and handle them in multicultural societies. The struggles over the uses, meanings and appropriation of water are especially well-illustrated in Andean communities and local water systems of Peru, Chile, Ecuador, and Bolivia, as well as in Native American communities in south-western USA. The problem is that throughout history, these nation-states have attempted to 'civilize' and bring into the mainstream the different cultures and peoples within their borders instead of understanding 'context' and harnessing the strengths and potentials of diversity. This book examines the multi-scale struggles for cultural justice and socio-economic re-distribution that arise as Latin American communities and user federations seek access to water resources and decision-making power regarding their control and management. It is set in the dynamic context of unequal, globalizing power relations, politics of scale and identity, environmental encroachment and the increasing presence of extractive industries that are creating additional pressures on local livelihoods. While much of the focus of the book is on the Andean Region, a number of comparative chapters are also included. These address issues such as water rights and defence strategies in neighbouring countries and those of Native American people in the southern USA, as well as state reform and multi-culturalism across Latin and Native America and the use of international standards in struggles for indigenous water rights. This book shows that, against all odds, people are actively contesting neoliberal globalization and water power plays. In doing so, they construct new, hybrid water rights systems, livelihoods, cultures and hydro-political networks, and dynamically challenge the mainstream powers and politics."--Publisher's description.

Scarcity of water, floods and erosion caused by climate change have made the management of water resources a challenge to national and international actors worldwide. States have also initiated water projects to improve social welfare, often with significant impacts on the environment. This book combines close analysis of the legal structures of water rights with consideration of the modes of water management projects to illustrate current water-related problems in terms of practical solutions in a global context.

This paper seeks to answer a number of basic questions. First of all just what are land tenure rights and water rights? Second, how do the respective regimes compare? Third what linkages, if any, are there between land tenure rights and water rights and, if there are none, does this matter, either in general or as regards specific aspects of the interface? A key objective of the paper is to examine which aspects of the rights interface merit further research. In comparing the two regimes a final subsidiary objective of this paper is to try and identify which areas, if any, in one sector can shed light on areas for future research in the other.