Water Rights (original) (raw)
Related papers
Which Rights are Right? Water Rights, Culture, and Underlying Values
Water Nepal, 2003
Over the past decade there has been increasing alarm worldwide about water scarcity, which, it is feared, will lead to massive malnutrition and famines, thirst, and unhygienic dwelling conditions as well as to violent clashes among different users and even wars between nations. Consequenly, as a way of mitigating possible conflicts over increasingly scarce water resources there has been increased attention on clarifying what water rights entail. This in itself has raised another conflict: a conflict over the way in which water rights are defined. Much of the international debate has posed the issue as a simple dichotomy between economic efficiency and basic welfare or human rights. A ctoser look at the multiple forms of water rights derived from state, customary, local, and religious laws, however, reveals more complexity in the principles and values underlying how rights are defined, both in terms of abstract and specific situations as well as in terms of how they are actualised or put into practice by different parties. Both water rights and the laws from which they are derived are linked to wider cultural meanings and values associated with water and notions about what is fair and just or equitable.
Developing a New Philosophy of Water Rights
California Law Review, 1950
N o sURvEY of the Central Valley Project can be complete without an examination of the California water law, particularly developments since the 1928 amendment to Article XIV of the constitution including the important recent decision of the United States Supreme Court in the case of United States v. Gerlach Live Stock Co.' Congress in authorizing various portions of the Central Valley undertaking has provided that the reclamation law will govern the project. 2 Reclamation law declares:8 That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with thelaws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof. To fully understand the California law, one must know its involved background as developed in endless bitter litigation." But for the purpose of this paper it may be said that the 1928 amendment to the constitution was the culmination of a long struggle between the common law riparian rights philosophy and the miners' custom of appropriation. The riparian rights doctrine, developed where lands were * Member of the San Francisco bar; author of ANNOTATED CONSnTUTIon OF CAL1-roRmA (6th ed. 1931); TiE CAT LE KING (2d ed. 1950). 1339 U.S. 725 (1950). 2 E.g. 61 STAT. 475 (1947). 332 STAT. 390 (1902), as amended, 43 U. S. C. § 383 (1946). 4 See WIEL, WATER RIGnTS n-TE WESTmu STATES (3d ed. 1911); Shaw, The Development of the Law of Waters in the West, 10 CALM. L. REv. 443 (1922). Tulare Dist. v. Linsay-Strathmore Dist., 3 Cal. 2d 489, 45 P. 2d 972 (1935) is an example of the complexity of such litigation. The case first came before the Supreme Court on its merits 18 years after its commencement and was then sent back for retrial. The first trial had consumed 200 court days and the record included a reporter's transcript of 26,936 pages and 678 exhibits. Counsel consumed over five years in preparing the appellate briefs.
The Journal of Legal Pluralism and Unofficial Law, 2015
In this paper we assess the impact of Franz von Benda-Beckmann’s work in the field of water rights. We argue that his contributions to understanding water, a field dominated by engineers and economists, cannot be overestimated. Over the years, Franz’s nuanced and empathic anthropological attitude, his suspicion of universals, and his critical stance towards mainstream development thinking have developed into a rich conceptual repertoire for understanding how norms, rules, and laws co-shape water flows to produce highly uneven waterscapes. His ideas have been particularly influential in re-thinking water as property, opening up for investigation the relation between “the legal” and human behaviour through a layered conceptualization of property. There is now increasing recognition of the idea that water use situations are often governed by a plurality of rules, norms, and laws that come from different sources. The impact of such insights on engineering-dominated water studies is growing. Indeed, law and notions of legal pluralism are increasingly mobilized for the purpose of better regulation of water. The instrumental use of legal pluralism may, however, result in a watering down of descriptive-analytical concepts. These concepts may thus lose their analytical power and become linked to the very forms of identity-based politics, neoliberal ideologies, and modernist-legalist interventions that critical legal pluralism studies intend to challenge.
A water property right inventory of 60 countries
Review of European, Comparative & International Environmental Law, 2021
The history of water law is the history of the struggle to control water'. 1 Over 4,000 years, diverse property theories have developed that apply specifically to water. In national legal regimes today, the right to use water is defined 'in terms of the relationship of the use to the water source'. 2 These rights are often characterized as property rights: 3 they can be treated as a species of common property (each common owner can use water, with no collective decision making, considering the rights of other users), private property (similar to other forms of private property) and public property (different water users collectively manage water). Over time, concepts crystallized around riparian use, prior appropriation, water use permits and, more recently, tradable water rights. 4 In recent decades, the gap between the demand for and supply of water and climate variability and change have made States conscious of the urgency of improving water allocation systems. Countries worldwide are reforming water law, including by introducing some sort of 'modern' permit system. 5 While the literature assesses case studies and theories, there is little systematic comparative analysis of laws on property rights in water and the role of permits in them, especially in the global South. Hence, this article addresses the question: How have property rights in water evolved including through granting water use permits in Anglophone and Francophone Africa and Asia? Permits are water allocations or entitlements granted by the State subject to specific conditions and are grounded in national laws. This article does not assess the 1
Oxford University Research Archive, 2021
In the space of ten years, a number of novel and unique legal developments have arisen in different jurisdictions around the world with one element in common: a declaration of the Rights of Nature, and a direct attribution of this jurisprudence to watercourses in their respective contexts. This thesis uses a hydro-socio-legal approach to analysing three of these developments as case-studies, identifying why they have occurred, the tensions involved, and the institutional and governance issues that they seek to address or are responding to. This work frames the analysis around an evaluation of environmental constitutionalism, and legal personhood, which informed their selection. This evaluation is prefaced by a prior discussion of key ideas in the theoretical discourse pertaining to the appropriate form of a right for non-human entities, and whether natural objects can have identifiable, and representable, interests. This work concludes that sufficient sophisticated recognition and processing of information about socio-hydrologies in respective contexts can innovate water law to enable responsive governance regimes, and the achievement of this depends on whether jurisdictions are prepared to open themselves to new approaches, legitimate stakeholder relationships with watercourses, and technological solutions that can enrich empirical understandings of fair resource allocation and utilisation for both nature and society.
The Human Right to Water: Critiques and Conditions of Possibility
WIREs Water, 2015
This Advanced Review analyzes recent debates over the human right to water. While accepting critiques from scholars that the right to water risks entrenching unequal and unjust forms of water governance, the paper nevertheless takes a more sympathetic view of the potentials within struggles for the right to water. Recognizing that such struggles can take many different forms, we urge scholars to adopt more nuanced and geographically sensitive analyses of the conditions out of which movements for the right to water have emerged. We reject the claim that the right to water depoliticises struggles for water justice and we instead find conditions of possibility for deeper and more lasting changes to water governance within struggles for the right to water.
Liquid Relations. Contested Water Rights and Legal Complexity
Liquid Relations. Contested Water Rights and Legal Complexity, 2005
Water management plays an increasingly critical role in national and international policy agendas. Growing scarcity, overuse, and pollution, combined with burgeoning demand, have made socio-political and economic conflicts almost unavoidable. Proposals to address water shortages are usually based on two key assumptions: (1) water is a commodity that can be bought and sold and (2) "states," or other centralized entities, should control access to water. Liquid Relations criticizes these assumptions from a socio-legal perspective. Eleven case studies examine laws, distribution, and irrigation in regions around the world, including the United States, Nepal, Indonesia, Chile, Peru, Ecuador, India, and South Africa. In each case, problems are shown to be both ecological and human-made-the locally specific outcomes of social, political, and environmental histories. The essays also consider the ways that gender, ethnicity, and class differences influence water rights and control. In the concluding chapter, the editors draw on the essays' findings to offer an alternative approach to water rights and water governance issues. By showing how issues like water scarcity and competition are embedded in specific resource use and management histories, this volume highlights the need for analyses and solutions that are context-specific rather than universal. ________________________________________
The social life of water rights: towards a contractual approach
Legal Pluralism and Critical Social Analysis, 2024
Superseding the ambiguous distinctions between formal and informal or between de facto and de jure rights developed in water studies, the study of water rights got a new lease on life when Franz and Keebet von Benda-Beckmann proposed a distinction between categorical and concrete rights. While this approach apparently explains the social embodiment of state, customary, or local normative formulations, a closer examination shows that water rights are not enacted as enforceable entitlements but constantly (re)negotiated at every water turn. Thus, the fluid and contingent social life of water rights in Farmer-Managed Irrigation Systems (FMIS) is best understood in terms of their contractual character.