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Table of Contents Page

CHAPTER ONE: OVERVIEW AND INTRODUCTION OF WATER LAW

Introduction
1.1. Few Points on Water …………………………………………………………………1
1.2. Classification of water resource………………………………………………………3
1.3. Uses of water……………………………………………………………………….....8
1.4. Water and society……………………………………………………………………11
1.5. Need for water policy, legislation and administration………………………………12
1.6. Development of water law ……………………………………………………….....15
1.6.1. Development of earliest water law principles ……………………………………18
1.6.2. Existing systems …………………………………………………………...……..32
i. water law in early roman law ………………………………………………….33
ii. Water law in civil law countries………………………………………………34
iii. Water law in the common law legal system………………………………….37
1.7. Scope of water law………………………………………………………………......40
1.8. Land tenure and water rights…………………………………………………….......42

CHAPTER TWO: THEORIES OF WATER RIGHTSSECTION ONE

: RIPARIAN DOCTRINE
2.1. Riparian Doctrine……………………………………………………………………50
2.2. Riparian rights to natural flow………………………………………………………52
2.3. Reasonable use and riparian rights …………………………………………….......53
2.4. Evolution and Current Practices of Riparian Rights ………………………………..54
2.5. Riparian land and watercourses subject to riparian rights…………………………..56
2.6 Nature of riparian rights……………………………………………………………...57
2.7. Limits of riparian rights……………………………………………………………..59
2.8. Losses of riparian rights……………………………………………………..………61

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SECTION TWO: PRIOR-APPROPARIATION DOCTRINE

2.9. The doctrine of prior appropriation………………………………………………62

2.10. Waters subject to appropriation…………………………………………............65
2.11. Transfer and Loss of appropriative Water rights………………………………..66

CHAPTER THREE: INTERNATIONAL WATER RESOURCE LAW

3.1. General overview on international water resource law…………………………….69

3.2. Definitions and historical review …………………………………………………..71
3.3. Sources of international water resource law………………………………………..75
3.3.1. International conventions …………………………………….…………………..76
3.3.2. International customary water law …………………………………...…………..79

3.3.3. General principles of international water resources law ……………….………....81

3.3.4. Resolutions of intergovernmental organizations……………………….…...........82
3.3.5. Judicial decisions …………………………………………………….………….83
3.3.6. The work of the institute of international law ………………………….………..87
3.3.7. The work of the international law association ………………………….………..88
3.3.8. The work of the Asian African legal consultative committee ………….………..89

3.4. Major issues in international water resources law…………….…………..………..90

3.4.1. Boundary demarcation ……………………………………………….…............90

3.4.2. Navigation ………………………………………………………………..……….94

3.4.3. non-navigational uses of water…………………………………….………...........97
3.4.4. State succession and the legal status of international water rivers………………103
3.5. Cases of agreements involving major issues in international water resources…….107
3.6. Water and conflict………………………………………………………….............122
3.6.1. How is Water Linked to Conflict?.........................................................................123
3.6.2. Water Conflict in the Middle East …………………………...………………… 124

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CHAPTER FOUR: ETHIOPIAN WATER LAW

4.1. Water resource in Ethiopia……………………………………………………….131

4.2. . Uses and demands of water resource in different sub –sectors in Ethiopia…….136
4.3. Water sector development program (WSDP)……………………………………142
4.4. Ethiopian water resource management policy …………….…………………….143
4.5. Water resource management in Ethiopia………………………………...………150
4.6. Resolving water use disputes: the case of Ethiopia……………………………...160
4.7. Traditional Water Resource Management practices in Ethiopia………………...165

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Teaching Material on Water Law

CHAPTER ONE: OVERVIEW AND INTRODUCTION OF

WATER LAW

INTRODUCTION

The concept and application of water law has been given a topic in Property Law classes
in Ethiopian Law Schools. Despite its importance, it has never been given the proper
emphasis on the discussions undertaken. Due to that, students have been told only few
points about the theories of water rights. However, this cannot suffice. To understand the
whole concept of water rights and their applications, students should study the facet of
water and water law in detail. Therefore, in this chapter references will be made to the
nature and development of water laws and regulations.

1.1. FEW POINTS ON WATER

The oldest law books defined water as a movable, wandering thing which because of its
nature must remain common property subject to usufruct rights only. For all life, water is
necessary. We pay great attention to the clouds in the air, as rain on the soil, and as
streams back to the ocean. We know that water is the most abundant liquid on the earth.
Always we use or fight its tendency to find its own level. In considering its use and
abundance and properties, however, we must keep in mind this main fact: water is needed
for life. It is a simple truth that “water is life”. There is almost no living thing that could
have life without water. Water, as basic resource, is vulnerable to pollution, evaporation
and deterioration. Water has a great economic value for power generation, irrigation,
industrial activities, domestic use, recreation and so many countless activities which play
a great role for continuation of life on earth. Demands to water resources continue to
increase and so does the need for conservation and more efficient uses. The world
community has been passing through lots of political, economical, technological and
industrial changes and advancements. All of these changes are sharply outlined water-law

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developments. Its multifaceted uses and the increasing demand towards the resource
result in continuous and unsettled disputes and disagreements between and among
individual and sovereign states. Therefore, Water, having a chemical formula of H2O, is
one of the most abundant, widely distributed and essential substance on the surface of the
earth. It occurs in nature in the solid, liquid, gaseous states as ice or snow, water and
water vapor respectively. Water is a necessary constituent in the cells of every animal and
vegetable tissues and in the crystal of many minerals.1

Sea water contains on the average about 3.5% by weight of dissolved substances,
particularly Sodium Chloride, Magnesium Chloride, Magnesium Sulfate, Calcium
Sulfate, and Potassium Chloride. Snow is probably the purest natural resource of water
and rain the next purest, although the later contains dissolved gases of the air as well as
traces of carbon dioxide, chlorides, sulfates, nitrates and ammonia, with organic and
inorganic dust held in suspension. Water from streams and lakes in mountain districts is
relatively free from organic impurities but may contain dissolved inorganic salts, while
that from lowland rivers and lakes may be highly polluted. Water from springs and wells
has filtered through the ground and has been more or less purified from organic
contamination but may contain inorganic salts. 2

The oceans cover about 140,000,000 square miles or over 70% of the earth’s surface. The
areas are the primary source of moisture as it passes endlessly through the water cycle of
nature, but sea water because of its high mineral content is not directly usable by man
except for very limited purposes. The supply of water available to mankind over, on, and
within the land masses of the globe in the from of fresh water is an extremely small part
of the earth’ supply- about 3% of the quantity found in oceans. This land-related supply is
estimated to be about 33 trillion acre-feet, of which three- fourth is frozen within glaciers
or polar regions. The remainder upon which human life dependent is fund in the
atmosphere, in lakes and rivers, and in and below the soil covering the earth’s crust.

1
Robert, Emmet, Clark, Water and Water Rights, Vol.1,Indiana, (1967), Pp. 9
2
Ibid, Pp. 10

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1.2. CLASSIFICATION OF WATER RESOURCE

Having said the above points as to the nature, location and magnitude of supplies of water
resource, now we are going to discuss about classifications of water resources. The
scientific and legal classifications of water vary based on the different approaches of
classifying it. The hydrologist generally considers all water as moving through the
hydrologist cycle regardless of its location on the surface or beneath the ground.
Considering its location, water resource can be classified into surface water and ground
water; whereas considering issues related to ownership, it can be classified into public,
private, nobody’s water (res nullius) and common water. 3

1. Public water

Public waters are those which are considered to be either the property of the state or held
in trust by the state or the public authority. Normally, these waters are inalienable, i.e.,
they cannot be given away permanently, but only be the object of an administrative
permission. Public waters are also imprescriptibly, i.e., in spite of long use they do not
confer upon the user any right whatsoever. This legal status is to be found in civil law
countries, where public water is generally considered as belonging to the public domain;
that is a category of things which, in the public interest, are said to be the property of the
state. As a consequence, only the sate has the right to grant to others the right to use
them. Public waters may be such either because they have been so defined by the law
establishing the public domain or because they have been so declared subsequently.
Generally, the criteria to identify public waters vary from country to country and may
include their navigability or floatability, their being of public interest or their likelihood
to become so.

2. Private Waters

3
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992), Pp
138

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Private waters are those which the legislation considers to be object of private ownership.
This notion stems from the concept of land ownership to which it is closely attached. It is
particularly relevant in the case of groundwater, on the basis of the legal maxim that the
owner of the land owns everything located above and below his land, including
groundwater. Generally, private surface water ownership is limited to rain water and to
springs or waters located within ones land. Private ownership of water is either so defined
in the legislation, or most generally, derives from the legal framework prevailing in
anyone country. The concept of private ownership of water, whether surface or
underground, can create problems where the achievement of rational water resources
management is concerned.

3. Res Nullius

Waters not belonging to anyone (res nullius) should be considered as nobody’s water,
which, however, are still subject to the possibility of appropriation. In some countries, the
legal framework allows for the existence of this legal status of water.

4. Common Waters: Community or Tribal Waters

Common waters (res communis omnium) are those waters considered as the common
entitlement of the whole community. This is the doctrine followed by common law
countries; the doctrine includes waters because of their transitory, elusive nature, which
defies ordinary concepts of ownership. In such countries, the expression “water
ownership” is avoided in legislative texts, which instead declare generally that the state
has the power to control water utilizations. Community or tribal waters are those
belonging to a given community or tribe at the local level. This legal status exists under
customary law in many countries, and sometimes recognized by modern water
legislation. It also applies at the municipal level.

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It is by considering issues related to ownership that we have classified water into the
above categories. We may have different categories considering the location where it
situates, i.e., Surface Water and Ground Water.

I. Surface Water

Surface water is water in a river, lake or fresh water wetland. Surface water is naturally
replenished by precipitation and naturally lost through discharge to the oceans,
evaporation, and sub-surface seepage. Surface waters may include; diffused surface
waters, surface waters in ponds and lakes, spring waters and waste waters. Diffused
surface waters, collections of still water wholly upon the land of one person and captured
waters in private ditches and reservoirs have common characteristics. They rarely
dedicated to pubic use and are subject to the proprietary rights of the owner of the land
upon which they arise. Their source may be intermittent rainfall, melting snows,
seepages, springs, or overflow water that becomes separated permanently from its stream
source. 4

Diffused surface waters differ from natural streams in that they are vagrant, spread over
the surface of the ground without observable channels or breaks, and have no predictable
flow. Unlike pond, swamp or marsh waters, they move from higher to lower ground, pass
across the lands of various persons and may even serve as a source of supply for natural
stream.

Vagrant surface waters and inter-tract reservoirs and ponds, not being publc juris,
generally belong to the person who captures or retains them upon his own land. Such
person has a proprietary rather than a usufructuary right, and may divert water for any
private or commercial use. His rights are limited only by the well known maxim sic utere
tuo that he refrain from malicious or unnecessary harm to those below him.

4
Clyde O., Martz, Rights Incident to Possession of Land, USA , Pp. 185

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Regarding liabilities in the unnecessary use of surface water there are two doctrines
applicable in the common law legal tradition and in the civil law tradition. The common
enemy doctrine is applicable in the common law legal system while the rule of natural
servitude is applicable in the civil law tradition. By the common law view, recognized in
half of the states, diffused surface waters are the common enemy of man. One is
privileged to dam against them, throw them back upon upper lands, or deflect them in
artificial channels upon adjoining lands, so long as he does not collect them in unusual
quantities and discharge them with force upon such properties. The reasonable
interference rule is a modification of the common enemy doctrine. It permits the lower
landowner to obstruct and deflect natural surface drainage, but only so far as is
reasonable, considering both the needs of his own land and the potential injury which his
interference will cause to the properties of others. It merely requires him to use his land
in such a way as to avoid unnecessary or disproportionate harm to his neighbors.

By the civil law doctrine, recognized by almost half of the states, lower lands are servient
to the natural surface drainage from those above to the same extent that they are
everywhere serveint to the flow of natural streams. Accordingly, one cannot obstruct or
deflect such waters to the injury of others unless the servitude across his land has been
surrendered by grant or destroyed by adverse use. As the servitude exists only for natural
drainage, however, the proprietor of the upper land is forbidden by the strict view from
channeling the drainage or otherwise changing its natural flow in any way.

II. Ground Waters

Water can be found beneath the ground almost everywhere. About 97 percent of the
world's fresh water is ground water. Major reservoirs of ground water are referred to as
aquifers . Ground water is fresh water located in the pore space of soil and rocks. It is
also water that is flowing within acquires below the water table. It is found in spaces
between soil particles and rocks, and within cracks of the bedrock. Some ground water
can be found beneath the land surface in most cases. Because of its availability and
general good quality, ground water is widely used for household needs and other water

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purposes.5 Ground water is often taken for granted, but recent circumstances indicate that
ground water is seriously vulnerable to pollution and depletion. Contaminants which
threaten people's health have been found in many important ground water reservoirs.

Most people are more familiar with surface water than ground water. Surface water
bodies such as lakes, streams and oceans can be seen all around, but not ground water
bodies. Some important differences between ground water and surface water bodies are
worth noting. Groundwater usually moves much slower than surface water. Water in a
stream may move several feet per minute, but water in an aquifer may move only several
feet per month. This is because ground water must overcome more friction or resistance
to move through small spaces between rocks and soil underground. There are exceptions
to this rule. An example is underground streams in limestone caverns where the water
may move relatively fast.

The exchange of water between surface water bodies and aquifers is important. Rivers
usually start as small streams and get larger as they flow downstream. The water they
gain is often ground water. Such a stream is called a gaining stream. It is also possible for
streams to lose water to the ground at some points. In these cases, aquifers are
replenished or recharged by water from the losing stream. A stream which flows near the
surface of an aquifer will lose water to the aquifer if the water surface in the stream is
higher than the water table of the aquifer. A stream will gain water if the water surface of
the stream is lower than the water table in the adjacent land. The natural input to ground
water is seepage from surface water. The natural outputs from ground water are springs
and seepage to the oceans.

Occurrence of Ground Water

Occurrence and movement of groundwater are governed by the laws of physics and local
geological conditions. Although most groundwater can occur in the form of underground

5
David H.Getches, Water Law in a Nut shell, (1997), Pp. 237

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streams, most ground water is percolating water stored in the pores, or interstices of rock
formations. The size of these interstices varies with the size of the rock particles; a bed of
gravel has interstices visible to the naked eye, but clays have very minute particles and
interstices. Interstices may be formed by geological processes at the time the rock was
formed or created later by cracking or erosion. 6

Porosity is the measure of the amount of open space within rock. It is defined as the
percentage of the rock’s total volume occupied by pore space. Other factors being equal,
the greater the porosity, the more freely water can move through the rock and the more
water that can be stored within. The force of gravity can cause water to move downhill
through rock formation. Slowing this movement are the forces of molecular attraction is
proportional to the surface area of the rock particles, which increases as their size
decreases.

1.3. USES OF WATER

Water is one of the most vital natural resources for all life on Earth. The availability and
quality of water always have played an important part in determining not only where
people can live, but also their quality of life. Even though there always has been plenty of
fresh water on Earth, water has not always been available when and where it is needed,
nor is it always of suitable quality for all uses. Water must be considered as a finite
resource that has limits and boundaries to its availability and suitability for use.

Reconsider the following assertion: The availability and quality of water always have
played an important part in determining not only where people can live, but also their
quality of life. How? Discuss.

The balance between supply and demand for water is a delicate one. The availability of
usable water has and will continue to dictate where and to what extent development will
occur. Water must be in sufficient supply for an area to develop, and an area cannot

6
Ibid

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continue to develop if water demand far outstrips available supply. Further, a water
supply will be called upon to meet an array of off-stream uses (in which the water is
withdrawn from the source) in addition to in-stream uses (in which the water remains in
place).

The Water-Use Cycle

Water is constantly in motion by way of the hydrologic cycle. Water evaporates as vapor
from oceans, lakes, and rivers; is transpired from plants; condenses in the air and falls as
precipitation; and then moves over and through the ground into water bodies, where the
cycle begins again.

The water-use cycle is composed of the water cycle with the added influence of human
activity. Dams, reservoirs, canals, aqueducts, withdrawal pipes in rivers, and groundwater
wells all reveal that humans have a major impact on the water cycle. In the water-use
cycle, water moves from a source to a point of use, and then to a point of disposition. The
sources of water are either surface water or groundwater. Water is withdrawn and moved
from a source to a point of use, such as an industry, restaurant, home, or farm. After
water is used, it must be disposed of (or sometimes, reused). Used water is either directly
returned to the environment or passes through a treatment processing plant before being
returned.7

Uses of Fresh Water

Uses of fresh water can be categorized as consumptive and non-consumptive (sometimes

called "renewable"). A use of water is consumptive if that water is not immediately
available for another use. Losses to sub-surface seepage and evaporation are considered
consumptive, as water is incorporated into a product (such as farm production). Water

7
Solley, W. B., Pierce, R. R., and Perlman, H. A., Estimated Use of Water in the United States in 1995,
U.S. Geological Survey Circular 1200 (1998).

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that can be treated and returned as surface water, such as sewage, is generally considered
non-consumptive if that water can be put to additional use.8

We use water in a lot of different ways. We use water for recreation such as swimming.
We use water to wash objects. Water is used for electricity and irrigation. It is used to
water plants; sprinklers also use water. Water is used for farming and growing crops.

Categories of Water use

Commercial water use: includes fresh water for motels, hotels, restaurants, office
buildings, other commercial facilities, and civilian and military institutions.

Domestic Water use: includes water that is used in the home every day, including water
for normal household purposes, such as drinking, food preparation, bathing, washing
clothes and dishes, flushing toilets, and watering lawns and gardens. Domestic water use
is probably the most important daily use of water for most people.

Industrial water use: Water is a valuable resource to the nation's industries for such
purposes as processing, cleaning, transportation, dilution, and cooling in manufacturing
facilities. Major water-using industries include steel, chemical, paper, and petroleum
refining. Industries often reuse the same water over and over for more than one purpose.

Irrigation water use: water can artificially be applied to farm, orchard, pasture, and
horticultural crops, as well as water used to irrigate pastures, for frost and freeze
protection, chemical application, crop cooling, harvesting, and for the leaching of salts
from the crop root zone.

8
Perlman, Howard, Water Use in the United States, (Water Science for Schools, U.S. Geological Survey)
<http://ga.water.usgs.gov/edu/wateruse.html>, as referred on September 2008.

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1.4. WATER AND SOCIETY

The importance of water in all aspects of human activities is well known; one basic
condition for human, animal and plant survival is the availability of water. It is through
the combination of water with one or more basic natural resources that other resources
are made available. Water, combined with land, provide plants and forests, which in turn
are, indispensable to sustain human and animal life. Water is also an important element
for social stability and the economic development of any community, country or
civilization depends largely on its availability. 9

Water resources are not evenly distributed, so that while in some areas of the world there
may be excess water, in other areas there may be a shortage. On the other hand, the
amount of water available in any state, area or basin is invariable, while water demands
increase continually. Water demands for drinking purposes grow in parallel with
population growth, while modern standards of living require increased amounts of water
for domestic uses such as gardening and recreational purposes. Likewise, the increased
world population necessitates more water for irrigation and livestock in order to satisfy
increasing food requirements.

In all countries, agricultural and industrial development makes the construction of

hydraulic works, such as irrigation systems, reservoirs and tanks, necessary. Industry
particularly, that based on chemical processing, utilizes considerable quantities of water:
oil refining, the manufacture of synthetics and paper making, to name a few. Thus, the
availability of water is a prerequisite and the limiting factor to the agricultural and
industrial development of any country.

In developing the use of water resources for various purposes, human activities have
direct or indirect effects on the environment. Changes on the environment caused by
over-exploitation of natural resources (land, water, forests, etc), in turn contribute to

9
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992), Pp.
1

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further destruction of land and the spread of deserts. The indiscriminate dumping of
urban and industrial wastes turns rivers into sewage canals, with the result that at a
certain point the water is lost for further use. Irrigation practices not sustained by
adequate drainage may cause soil erosion and the loss of previously good lands. Excess
chemicals in the form of weed killers or fertilizers causes water contamination with
disastrous consequences for downstream domestic, agricultural, fishing and industrial
uses and the contamination of groundwater. Inadequate sewerage or drainage systems
have made waters carries of water-borne diseases. The reduction of the discharge of
rivers into the sea caused by excessive domestic, agricultural and industrial uses may lead
to the increase of infiltration of brackish water into deltaic groundwater areas.

On the other hand, excessive floods, which may be caused by lack of watershed
protection measure and by mismanagement of lands and forests, can destroy or render
less usable what was once high production potential land. Radioactive contamination and
toxic wastes spoil atmospheric water and cause air pollution, acid rain and endanger
human, animal and plant life. Any water use, if not adequately planned and managed,
both quantitatively and qualitatively, may cause detrimental side –effects to the water
itself and to other natural resources. Since these negative effects can be avoided through
the enhancement of adequate water legislation and the establishment of an appropriate
water administration, it may be said that the success of the development and conservation
of water resources in any country depends to a large extent on the effectiveness of its
water laws. 10

1.5. NEED FOR WATER POLICY, LEGISLATION AND ADMINSTRATION

As a consequence of the above-mentioned realities, the needs is being increasingly felt

for more careful consideration of all the problems related to the use of water resources,
among which, in first rank, are the legal and administrative aspects involved. The need
for formulating policies in water resource development programs and activities is also

10
Ibid, Pp. 2

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felt. The overall objective of a water policy is to achieve the maximization of benefits
deriving from available water resources and the most rational management.

A sound and well-balanced water resource policy should be viewed, as the case may be,
at the national, basin, regional, and local project levels. It should be framed according to
the existing situation and requirements in any particular state, region or basin, and be
concerned with finding ways and means to satisfy existing and future water demands for
different purposes on the basis of availability of water, existing uses, estimates of
population growth and technical and financial possibilities. This requires proper planning
for the allocation and management of the available water and financial resources at every
level.

Just as a national water resource policy must be viewed within the context of a national
overall development plan, as it may constitute either a catalyst or a barrier to such
national plans, a water administration as part of a national infrastructure may act either as
a stimulus or as a constraint upon the national development process. Likewise, a well
conceived water legislation may constitute a means to implement water policy decisions
and facilitate the rational utilization of water resources, while an inadequate water
legislation can act as a hindrance to their utilization.

In many cases, existing legislation to mange and meet water demands and conserve the
supply of water has come down from the days when the resource was considered
inexhaustible. Time has overtaken the laws, which give users a free hand on waters, and
advances in knowledge and technology have outdated many early types of control. The
search for new sources has led to the extensive use of groundwater to trans-basin
transfers, to storage and distribution schemes formerly under named size, to the
recharging of aquifers, to the recycling of water and to the use of wastewater, since the
existing laws may have no provisions for regulating these new sources or for controlling
such projects.

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To meet these new needs, innovative water laws must be designed, not only to facilitate
and achieve efficient allocation or reallocation of resources and environmental protection,
but also to aim towards the attainment of social, economic and other national goals.
Water law reform may accompany land reform, in that the redistribution of land may call
the redistribution of the water rights appurtenant to that land. Settlement schemes to open
up new land to irrigation or to turn nomadic or pastoral people to farming may require
special provision in water laws or special organizations to manage or distribute water.
Programmes for the betterment of indigenous populations may need special provisions to
enable them to compete with proposals for industrial development or commercial
irrigation projects. Future holders of water rights may have different degrees of
sophistication that require different treatment. Much free choice might be given to
landowners and industrialists in developed countries, but a more paternalistic approach
may be required for those whose introduction to what we call civilization is quite recent,
whose transition to modern commercial life is incomplete, who may be recent graduates
from nomadic or pastoral life or who may have been raised in a tribal or communal
system to which some notions of law and property are foreign.

Modern planning, development and management of water resources must be based on

water law principles which are implemented by legal procedures that authorize and
facilitate these processes. It is important to recall in early days water laws referred mainly
to legal rules governing the relationships among water uses, such as the riparian doctrine
or the prior appropriation doctrine.11 Nowadays, the objectives and interests of
governments must also be taken into consideration. As a result, the system must regulate
the relationship of water users vis-à-vis the state and clearly identify and define the
powers of the state concerning all uses of water, both public and private.

What issues are regulated under water law? What is water law all about?

Water law is the field of law dealing with the ownership, control, and use of water as a
resource. It is most closely related to property law, but has also become influenced by

11
You will be clear with these doctrines in the coming chapter

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environmental law. Because water is vital to living things and to a variety of economic
activities, laws attempting to govern it have far-reaching effects. Water has unique
features that make it difficult to regulate using laws designed mainly for land. Water is
mobile, its supply varies by year and season as well as location, and it can be used
simultaneously by many users. As with property (land) law, water rights can be described
as a "bundle of sticks" containing multiple, separable activities that can have varying
levels of regulation. For instance, some uses of water divert it from its natural course but
return most or all of it (eg. hydroelectric plants), while others consume much of what
they take (especially agriculture), and still others use water without diverting it at all (eg.
boating). Each type of activity has its own needs and can in theory be regulated
separately. There are several types of conflict likely to arise: absolute shortages;
shortages in a particular time or place; diversions of water that reduce the flow available
to others; pollutants or other changes (such as temperature or turbidity) that render water
unfit for others' use; and the need to maintain "in-stream flows" of water to protect the
natural ecosystem.

Water law involves controversy in some parts of the world where a growing population
faces increasing competition over a limited natural supply. Disputes over rivers, lakes and
underground aquifers cross national borders. Although water law is still regulated mainly
by individual countries, there are international sets of proposed rules such as the Helsinki
Rules on the Uses of the Waters of International Rivers and the Hague Declaration on
Water Security in the 21st Century.

Long-term issues in water law include the possible effects of global warming on rainfall
patterns and evaporation, the availability and cost of desalination technology, the control
of pollution, and the growth of aquaculture.

1.6. DEVELOPMENT OF WATER LAW

History shows the intimate connection between economic and social development of a
society and adequacy and dependability of water. Once ancient peoples settled around a

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water supply area, the need for institutions and regulations for bringing water under
control were immediately felt. Civilizations grew and prospered whenever their
regulatory controls imposed upon water were efficient, and civilizations often declined or
disappeared as a consequence of the softening or ineffectiveness of such regulatory
controls.12

The earliest codifications may be found in the Egyptian Pharaonic Water Regulations, in
the Hindu Laws of Manu, in the Babylonian Hammurabi Code, in the Chinese Water
Regulations and in Roman and Moslem law. In the Mesopotamian region, the
Hammurabi Code, formulated 4000 years ago, bears witness to the early importance that
the settlers of the Tigris and Euphrates valleys attached to regulating water use and
waterworks protection.13

Like the Nile, and the Tigris and Euphrates, the Indus and Ganges civilizations came to
birth upon their banks around 3000 B.C. Documents relating to water laws are contained
in the Manava-Dharma-Shastra or Laws of Manu 1300 B.C14., which quote important
water regulations.

This has rightly led many authors to define the first developed social groupings as
hydraulic civilizations.15 Often, these civilizations are referred to by the name of the river
valley around which they developed. Thus the Egyptian civilization is civilization of the
Nile; the Hindu is the civilization of the Indus; the Chinese is the civilization of the
Huang-Ho. Civilizations which developed during other and more recent historical period
and which had great social impact also grew around important water points; such is the

12
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp11
13
Detail will be made on these documents and codifications in the coming sub topics.
14
The Manu Smriti was written as the words of the original creator, the “Imperishable One,” or “Brahmā”.
By attributing the words to supernatural forces, the text takes on an authoritative tone as a statement on
dharma, in opposition to previous texts in the field, which were more scholarly.
15
Also known as a hydraulic despotism or water monopoly empire, is a social or government structure
which maintains power and control through exclusive control over access to water. It arises through the
need for flood control and irrigation, which requires central coordination and a specialized bureaucracy.
Most of the first civilizations in history, such as Anceint Egypt, Sri Lanka, Mesepotamia, Chaina and pre-
Columbian Mexico and Peru, are believed to have been hydraulic empires.

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case of the pre-Columbian, Peruvian and Meso American civilizations around the coastal
valleys of Central and South America, the Khmer Civilization around the Mekong river,
the Elam and Suziana civilizations around the Dez river (in South-West Iran) the
Helmand civilization along the Helmand river between present Afghanistan and Iran, etc.
Arabic civilizations, which originated in deserted areas, also developed and expanded
from oases to river valleys, i.e., from well-watered points to better watered ones.16

All major human migrations and the birth of towns and communities have been closely
correlated with the search for and the settlement around naturally irrigated areas and
valleys adequately supplied with water. Early transportation was facilitated by waterways
with consequent benefits derived from trade and interchanges.

Civilizations developed wherever the valleys in which people settled were subject to
recurring floods which, in turn, brought natural flood irrigation on areas into which the
rivers carried, together with water, fertile alluvial soil particularly suitable for agricultural
development.

As soon as human groups settled around a water point or a river valley, the need arose for
minimum water control in order to satisfy water demands and to ensure an equitable
water distribution between different uses and users. It is from this need that the earliest
water law systems developed. Their growth, persistence and character varied and were
dependent upon many factors, such as local geo-physical and climatic conditions, socio-
economic and managerial situations, and the religious-philosophical beliefs of the
populations concerned.

In regions where water was abundant, water control was largely directed towards defense
against harmful effects of water such as flood warning and control and fight against water
invasion, land reclamation and embankment. In areas where water was scarce, this
control developed towards the conservation of water supplies and adequate distribution of

16
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp11

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the little water available; water regulations were more detailed and restrictive. It must be
pointed out that, in early water regulations, the religious character of water, either as a
gift, a reward or as a punishment by nature, God or the gods, is always present, possibly
with some exceptions. Furthermore, the amount of labor required for successful water
resources development and conservation activities is an important factor which
determined and influenced the socio-economic organization and growth of the hydraulic
civilizations.

It may also be said that the development and growth of early hydraulic civilizations were
closely related to the degree of effectiveness of the administrative-managerial, religious
and legal controls imposed on water use. So it can be noted that the diminished social
concern over the management of water has been one of the main causes of the subsequent
decay, and some times disappearance of early hydraulic civilizations. A typical example
is the disappearance of the Mesopotamia civilization as a consequence of diminished
administrative control over the canals which became burdened with silt. Likewise,
throughout history, the intervention of external invaders with the destruction of
waterworks and disruption of existing water management also made certain hydraulic
civilizations disappear.

1.6.1. Development of Earliest Water Law Principles

The very nature of water presented two precisely opposite challenges to the evolving
early hydraulic civilizations: how to convey it to the land for irrigation where it was
needed, and how to control it where it threatened men or was likely to cause damage. In
the first instance, hydraulic civilizations developed where natural and recurring floods
brought water and alluvial soil to the lands; at a later stage man-made aqueducts and
irrigation canals provided for such need. In order to fight against harmful effects of water,
dykes, dams and artificial hydraulic structures were built. As regards to the second
aspect, the harmful effects of recurring floods obliged populations to pool their efforts

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and organize themselves. These two physical aspects of water brought about the first
quest and development of water law principles.17

The incalculable amount of labor necessary to ensure water control obliged a whole
community to work for a common end, and, as a consequence of the union of efforts in
water activities, a decisive step took place toward the elevation of a community to the
level of a state. In fact, defense and divine worship constituted the combined action for
this progression. Hydraulic civilizations necessitated and authority which planned the
works, supervised their execution and brought them by coercion to successful
completion. Such coercion must have taken place by means of water regulations under an
appropriate water administrative authority. Government control over agriculture and
commerce was subsequent to the construction of canals and navigation structures.

At the earliest stage of development of law, the chief valuable was land including water,
cattle and slaves (for which water was needed), ships or boats (utilizing water) and the
rest of movable items (food, household furniture, equipment), etc. However, unlike
movables, land accompanied by the availability of water was, and is, the essential source
of life in all the phases of human society. Land is fixed in extent, and all members of the
community must have access to it in appropriate quantities. This is to how the rights-
duties relationship of land and waters developed. Public interest of the community in land
and water gave rise to their becoming public property. Individuals with in hydraulic
civilizations practiced a certain mode of conduct towards the use of community; in most
places it developed so as to give rise to the notion that all lands and waters belonged to
the community and that the rights of individuals or groups were either dependent or
partial. In those communities where there was no land property, what vague notion
existed with respect to land ownership probably went in the direction of communal
property under various forms: tribal, property of groups intermediate between the tribe
and the family, cases where land and water were vested in the chief, or a combination of
all of these.

17
Ibid Pp. 13

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i. Ancient Egyptian Water Regulations and Management

Earliest Dynasties (3400-2650 BC)

Very little is known of the water regulations of ancient Egypt, although Egyptian records
relate that they existed. The most important codifications referred to are those of
horemheb at Kamak. None of these regulations seem to have survived. However, reliable
records describe in detail the hydraulic structures built and the water administration
through different periods, from which it may be assumed that a whole body of water
regulations must have existed.

In the pyramid texts, the God Osiris is identified with the Nile waters. According to
tradition, Menes, the legendary first of the Pharaohs, dammed the Nile to control floods.
As early as the period of the first two dynasties (about 3400-2980 BC) there was a
‘Constructor of the King’ (Medeh Nisout) providing for public works. From that time the
Nile was measured and recorded on the Palem Stone. During the third dynasty (2980-
2900 BC) the water administration under the Constructor of the King developed into two
departments, at the head of which were a Master of Canals and a Master of Lakes. While
no changes occurred during the fourth dynasty (2900-2750 BC), under the fifth dynasty
(2750-2625 BC) a ‘Master of Water Castles’ was added to the water administration, and
the state organization developed even further.18

The civil status of the population, the cadastre of lands, the registrar of all deeds, the
water administration and the public works department were coordinated by the Central
Chancery. Branch offices of these services were scattered all over the country, and
officers recorded everything on papyrus conserved in the state archives. Through this
organization and from the records, the state could assess and collect taxes through its
revenue services. Under the fifth and sixth dynasties a larger degree of decentralization of
services developed, together with a diminished concern for water works construction and

18
Ibid Pp.14

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maintenance. It is during this last period that the civilization decayed; the deltaic towns
became for a while small autonomous states governed by a oligarchy.

Later Dynasties (2650-300 BC)

During the twelfth dynasty, the centralization of water administration was renewed. The
district governors of the Old Kingdom had as their chief title ‘Digger of Canals’ and were
responsible for the upkeep of canals and dykes, for patrolling and inspecting the banks
when water reached its height and for organizing aid when disaster threatened. In the case
of floods a state of emergency was declared, and obligatory corves were organized to
fight against water invasion. A larger network for measuring the height of the Nile (in
Nilometers) developed, the records of which were used to compare with past records and
to forecast possible floods downstream. The deterioration of dykes and canals was
regarded as an offence punishable by death, and this principle continued to be maintained
up to and after the Romans.

In ancient Egypt land and water belonged to the Pharaoh19 who, as a living god on earth,
granted its temporary use practically to whom he liked. Every community had to provide
the Pharaoh with the produce of the soil through its Xerp or public officers in charge of a
district. Water works were carried out by group of 1000, 100, 10 or 5 men organized
under a farm leader in working groups to whom a plot of land was granted for cultivation.
The income deriving from cultivated land was controlled and assessed for taxation by
public treasury officers who were themselves secretly controlled by the Pharaoh.20
Although the Scribes recorded everything, it is unfortunate that, so far, no written water
regulations have come to light, probably, as some authors have suggested, because the
Pharaoh needed no law other than his own.

ii. Ancient Mesopotamian Water Regulations and Management

19
Ibid
20
Pharaoh is a title used in many modern discussions of the ancient Egyptian rulers of all periods. In
antiquity this title began to be used for the ruler who was the religious and political leader of united ancient
Egypt, only during the New Kingdom, specifically, during the middle of the eighteenth dynasty.

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The ancient Mesopotamian civilization was basically a fluvial civilization. The rivers of
Mesopotamia21 provided water for irrigation and at the same time were means of
transport. The distribution of water was one of the main concerns of the governors during
the time of the first Babylonian dynasty, in which many important legal and
administrative documents were elaborated as sources of the Acadian-Sumerian law.22

A series of records in the form of inscriptions are available concerning water regulations
in the Babylonian23, Assyrian24, Hittite25 and related civilizations, and new ones are being
discovered even today.

Among the legal documents available, the Hammurabi Code deserves special attention.
The Sumerians worshipped the god of inundation, and the Sumerian King Gudea (2492
BC) is reported to have ‘Constructed a new canal and maintained in an excellent state of
repair the irrigation system of smaller canals.’ The Babylonian god Num personified the
idea that water is the source of life, of all blessing and the element of creation. During
this period a codified law was developed under Shulgi, the second king of the third
dynasty, which laid down the basis of the Hammurabi Code. This code and the royal
letters to local governors giving instructions for the upkeep of waterworks and canals
constituted the basis for most of the water legislation in Mesopotamia, even when issued
subsequently under new forms of codification.

21
Mesopotamia (from the Greek meaning "land between the rivers") is the area of the Tigris-Euphrates
river system, along the Tigris and Euphrates rivers, largely corresponding to modern Iraq, as well as some
parts of northeastern Syria, some parts of southeastern Turkey, and some parts of the Khūzestān Province
of southwestern Iran.
22
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp15
23
Babylonia was a state in Lower Mesopotamia (Iraq), with Babylon as its capital. Babylonia emerged
when Hamurabi created an empire out of the territories of the former kingdoms of Sumer and Akkad.
24
Assyria is located in north Mesopotamia and spans four countries: In Syria it extends west to the
Euphrates river; in Turkey it extends north to Harran, Edessa, Diyarbakir, and Lake Van; in Iran it extends
east to Lake Urmi, and in Iraq it extends to about 100 miles south of Kirkuk. This is the Assyrian heartland,
from which so much of the ancient Near East came to be controlled.
25
The Hittites were an ancient Anatolian people who spoke a language of the Anatolian branch of the Indo-
European language family, and established a kingdom centered at Hattusa in north-central Anatolia (on the
Central Anatolian plateau) ca. the 18th century BC.

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The Hammurabi Code26

The prologue of the Hammurabi Code contains 26 reasons for praising the king, of which
half except one refer to his activity as water ordained.27 In the introduction of this code,
King Hammurabi describes himself as ‘the gracious arbiter who has allotted… watering
places to Lagash and Girsu…’ and ‘the giver of the water abundance to… drink.’28

Water is considered as possessing a divine character, and as means of punishment for

various offences. Articles 53 to 56 are those dealing specifically with water control. Thus,
Article 53 states that if a man has been slack in maintaining the bank of his fields and has
not strengthened them and a breach has occurred whereby the waters carry away the
harvest on the land, the man in whose land such breach has occurred shall replace the
corn which he has caused to be lost. If he is not able to replace the corn, he and his goods
shall be sold and the tenants of the water-land whose sesame the waters have carried
away shall divide the proceeds from the sale (Article-54). A similar punishment is
provided for in Article 55 in the case in which ‘a man has opened his trench for irrigation
and has been slack and has let the waters carry away the soil on his neighbor’s land, he
shall pay corn corresponding to his neighbor’s loss.’ Article 56 provides that if a man has
released the waters and in so doing has caused the waters to carry away the works on his
neighbor’s field, he shall 10 gur of corn for every bur of land. 29

26
The Code of Hammurabi is one of the earliest known examples of human laws being defined and written
down in an orderly way. Little is known about Hammurabi himself; he ruled Babylon nearly four millennia
ago, from roughly 1792-1750 B.C. The code has 282 entries covering all sorts of civil interactions, from
inheritance to theft to slave ownership. Some of the laws are general (anyone caught committing a robbery
shall be put to death) and others quite specific ("If any one hire an ox-driver, he shall pay him six gur of
corn per year"). The code's best-known dictum is "If a man put out the eye of another man, his eye shall be
put out" -- commonly quoted as "An eye for an eye."

27
Dante A. Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp15
28
Ibid
29
Dante A.,Caponera, Principles of Water Law and Administration, National and International, (1992), Pp
16

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Finally, the Code ends with a supplication to various divinities to punish any one who
would not comply with the regulations set forth. King Hammurabi exclaims: ‘May Ea,
the great prince… stop his river at the source, and cause bread-corn, the life of the
people, fail to grow on his soil…’ and ‘…may Ada, the lord of ever-flowing wealth, the
controller of heaven and earth, my helper, deprive him of the rains from heaven and the
flood water from the source, may he bring his land to ruin by famine and hunger, may the
thunder in rage against his city turn his land into a heap left by the flood…’ The Code
ends up stating: ‘I made it possible for my people to recline on well irrigated fields.’

iii. Water Law in Hindu legal System

The hydraulic civilization of the Mohan-Jo-Daro (about 5000 BC) and the Indus Valley
Civilization (about 3000 BC) which developed in the Indus Valley have many features
similar to those of the Nile and Tigris-Euphrates civilizations: recurring annual floods, a
strong bureaucratic water administration, a large number of water works and divine
character of the waters. 30

A glance at some of the elements of the Hindu doctrine will help as understand the legal
system established by this civilization, as it was deeply influenced thereby. Hinduism, or
Brahmanism, is considered by its followers neither as a philosophy nor as a religion, but
as a living tradition expressing one form of the universal Truth. The Hindu doctrine is
that of the supreme knowledge, of which all that is perceptible, materially or otherwise, is
a component.

Man is considered both as a whole made of parts, and as a member of the community.
Similarly, communities are seen as necessary components of Humanity, which, in the
same way as minerals, plants and animals, is an element of the World, itself considered as
a microcosm in relation to the Universe, or Cosmos, regarded as the substantial and
formal expression of Truth. The Hindu, whatever his race, caste or personal degree of

30
Ibid Pp.18

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perception of the Supreme Knowledge, is well aware of his effective participation

therein, together with his environment, as a necessary element of Universal Harmony.

This concept of universal Harmony implies a necessary correspondence between the

cosmic and human orders. As the Cosmos is represented as Manu or the prototype of
Man (manava), such correspondence is necessarily present within the structure of every
human community, all social groups having organs and functions similar to those of the
human body. Harmony is achieved only when man’s action, or Karma, corresponds to the
functions assigned to him by his very nature. The same applies to communities, to
Humanity, and to the total order of the Universe.

To the integral harmony resulting from conformity with the above described hierarchy
corresponds, free of any moral connotations, the Dharma, or eminent principle of order,
‘Law’ around which the world accomplishes its revolution. In this sense, it constitutes the
Sanatana Dharma, or Primordial Tradition and is regarded both as the fundamental
Principle of the Hindu doctrine, or Brahma, the Divine Will and supreme Master of the
Universe, and as the substance of the doctrine as a whole.

As Principle, the Dharma governs all levels of the cosmic and human order, and
embodies the necessary conformity of all elements of the Universe with their very nature
and purpose. In this sense, it is possible to envisage a Dharma specific to each being
(swadharma), to each collectivity or to the whole humanity, for the full duration of its
cycle of existence. In this case, the Dharma appears as the specific Law or Norm of each
particular cycle, as formulated from its origin by the Manu which governs it, i.e., by the
Cosmic Intelligence reflecting in this world the divine will be expressed as the Universal
Order. 31

As substance of the doctrine, the Dharma constitutes the content of the Sacred Books as a
whole; in a restricted sense, however, it also expresses the legislative aspects of the
doctrine as applicable to the social order The traditional Hindu scriptures constitute the

31
Ibid

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Veda. The scared Books are, however, of two kinds: the Shruti, which emanate directly
from the divine revelation, and the Smriti, containing the collection of the traditional
Hindu commentaries.

The Shruti contains the four Vedas, or Fundamental Books, and the six Darshanas, or
‘points of view’ (branches) of the doctrine. The last Darshanas, entitled Vedanta (end
and ultimate purpose of the Veda), contains the precepts of the Santana Dharma (Lex
Perennis), as synthesized in the Brahma-sutras. The penultimate Darshanas, known as
Mimansa or Karmal Mimansa, refers to the field of action (Karma), and represents one of
the sources from which the principles of Hindu jurisprudence were developed.

The Smitri inter alia, contains, various treaties on the six fundamental sciences and four
Practical Sciences or Arts, the Shivaite and the Vishnuite commentaries or books, and the
Dharma-Shastra, or codes of law, which represent the Law of Manu as applicable to the
social order.

iv. The Water Regulations in the Code of Manu

The most important documents relating to water law are those contained in the Mnava-
Dharma-Shastra or Code of Manu,32 the Ancient origin of which has subsequently been
recorded in later texts.

For the Hindu, the Laws of Manu represent the expression of the divine will or principle
of universal order, as the necessary norms of correspondence between the essential nature
of man (Dharma) and his deeds (Karma). According to Rig-Veda belief, the Goddess
Sarasvati gave birth to the rivers; she was the peacock-riding wife of the four-headed
Brahma, creator of all things.

Chapter III, Sect. 151 of the Code states. ‘Let him not entertain at a sradda (dinner)… he
who diverts water courses and he who delights in obstructing them…’ In Chapter IV,

32
Ibid Pp.19

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Article 226 reads, ‘…a rich man must always without avoiding it and with faith, do
charitable works as constructing a reservoir or a well or building a public fountain…’ and
Article 229: ‘He who gives water obtains satisfaction.’

In these regulations we find the concept of public waters: ‘…Water’ along with other
things ‘they declare to be indivisible’33. In the same order of idea we find that kings used
to collect rights of way for crossing rivers34 and that the law imposed upon the king
special obligations with respect to public water such as to ‘organize vigilance and guards,
both stationary and patrolling, and spies…’ on waters and on ‘houses where water is
distributed’.35

The emphasis of economic and social concern placed on water in this code may be seen
by checking the rigorous punitive system by which the common utilization of public
waters was ensured. We find thus a moral sanction to consider ‘as a matter for exclusion
from the society of the good people the sale of a consecrated reservoir’36; then, the
obligation to punish with death ‘he who breaks the dam of a reservoir and causes loss of
water by drowning him in the water or have his head cut off.’ The offender ‘may repair
the damage but he shall have to pay the highest fine’37. But he ‘who shall take away the
water, must be made to pay the first (or lowest) fine’38. Furthermore, ‘the fine of gold
Masha and the obligation to restore everything to its original state’ shall be imposed upon
anyone who ‘destroys a public fountain’39. Finally, the unlawful appropriation of the
water of a well or cistern shall be punished by a ‘lunar penance’ – a minor one.40. Waters
were also considered an element of purification, as well as means to ascertain the
culpability of a person for certain crimes. Special ceremonials had to be performed in this
latter case. The control over water utilization and distribution was under the

33
Chapter IX, Sect. 219
34
Chapter VIII, Sect. 404
35
Chapter IX, Sect. 264-266
36
Chapter VIII, Sect. 61 and 69
37
Chapter IX, Sect. 279
38
Chapter IX, Sect. 281
39
Chapter VIII, Sect. 309
40
Chapter XI, Sect. 164

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responsibility of powerful water administration headed by a water superintendent; this

high official was vested with full and undisputed power on all questions related to water.

iv. Ancient Chinese Water Regulations and Management

The water regulations of the Chinese hydraulic civilization evolved together with the
particular legal, administrative, philosophic and political framework of China. Ancient
Chinese legal thought was based on the belief in a close interconnection between the
human social order and the natural cosmic order. This concept was particularly relevant
with respect to water ownership, distribution, utilization and administration. Harmony
and unity, prevailing throughout creation, were believed to be reflected in human
behavior towards oneself, the neighbors, the family, the group, the society and emperor.
Therefore, the foundation of social order was not necessarily the law (fa), but the li, a
term variously translated as rules of propriety, rituals or customs, prescribing to everyone
a behavior in harmony with the natural order. These are the views of the Confucian
theory41, out of which Chinese legal thought developed.

Around 200 BC, these doctrines, based on moral and ethical influence as opposed to law
enforcement, were for a time fought by the so-called school of Legalists who held that the
law (written and known) to which everyone was subject, governed the relationships
between human beings. It was the combination of the Confucianists ‘and Legalists’
theories or, as it has been said, the Confucianization of the law (fa) that gave birth to the
Chinese legal system.

41
Confucius was a Chinese thinker and social philosopher, whose teachings and philosophy have deeply
influenced Chinese, Korean, Japanese, Taiwanese and Vietnamese thought and life.His philosophy
emphasized personal and governmental morality, correctness of social relationships, justice and sincerity.
These values gained prominence in China over other doctrines, such as Legalism or Taoism (道家) during
the Han Dynasty (206 BC – 220 AD). Confucius' thoughts have been developed into a system of
philosophy known as Confucianism It was introduced to Europe by the Jesuit Matteo Ricci, who was the
first to Latinise the name as "Confucius."

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Regarding the development of water regulations, it is closely followed the evolution of

this legal history and philosophy.

The first reliable records on Chinese water law are to be found in the Li-Chi, or treatise
on ceremonial rules, in which interesting and suggestive passage refer to the behavior of
the ruler in the administration and regulation of water resources, in harmony with the
natural behavior of nature and recurring seasons. As an example we may quote, ‘…In
spring, all life starts and rains of heaven fall on earth, and therefore, let the waters run and
irrigate the fields…;’ in the summer months, ‘built dams and dykes and store the waters
for later consumption…;’ in the winter months, life ceases and therefore hardship arrives
‘…let inspection of works and collection of water rates and taxes be undertaken… punish
offenders,’ etc.

From these regulations, it appears that no private ownership of water existed, and the
government administration was responsible for the construction, repair and maintenance
of hydraulic works, including bridges, navigation and fishing. Local officials derived
their authority from the will of the emperor and cold issue orders and regulations in
compliance with the behavior of natural order. Labor was provided by the people
concerned under a system of corves as part of their yearly obligations towards the state.
Under shih-Huang-Ti; the first emperor of the Ch’in Dynasty (249-207 BC), the
influence of the legalists was at its peak; the centralized administration enacted a uniform
and publicized system of codification.

The subsequent Han Dynasty (200 BC-618 AD) codified the previous Ch’ in system of
laws, but again introduced the Confucian li (rules of propriety, custom) in the fa (law –
punishment), or, as it has been said, humanization of law occurred. An ordinance on
waters was enacted in 111 BC, and a new principle of ‘water equalization’ appeared in
this text. Land and water resources were under the on control of a director of agriculture,
and a court architect was responsible for water control. The mountains and the seas,
including lakes, streams, rivers swamps…. Are storehouses of heaven on earth and their
ought to belong to the office of Shu-fu’ (Secretary of the Treasury).

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Under Chinese water law principles the concept of private water ownership never
appeared; the individual’s duties in water matter would eventually lead to and enhance
public without monopolizing the resource. The water administration was always in
charge of all water activities, including navigation, flood control, floating, waterworks
construction and upkeep, bridge control and water policing, while individual irrigation
and fishing could be practiced provided thy fit into a collective pattern. The obligations
with respect to opening and closing ditches and canals, cleaning and upkeep of
waterways, and ‘turns of duty conscription,’ or corvees, had to follow the natural
seasonal variations and requirements according to the natural order. Punishment was
provided for in the case of offences under the water codes, ordinances and regulations.

V. Hebrew Water Regulations and Management

The Hebrews, once comprising a loose federation of tribes of mixed origin, have left us
an invaluable code of early law, partly influenced later (400 BC) by contact with
Babylon. The basic principles of this code are contained in the Bible, which today serves
both Jews and Christians. But in the matter of water law the Christians have adapted
themselves and accepted first the rules enacted by the Romans and subsequently those of
the countries where they live. The Jews evolved their own legal doctrines and opinions
from the Bible. These are contained in the Talmud a consolidated and unified digest of
Jewish law, written between the fifth and third centuries BC. With respect to water
regulation the Talmud includes a few references, which are the development of the basic
principles contained in the Torah, or revelation of Biblical texts.

Water is a divine gift for the subsistence of human, animal and plant life: ‘He sendeth the
springs in to the valleys, which run among the hills. They give drink to every beast of the
field: the wild asses quench their thirst. By them shall the fowls of the heavens have their
habitation, which sing among the branches. He Watered the hills from his chambers….
He causeth the grass to grow for the cattle and the herb for the service of men….’

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As a consequence of the benefits that water provides to all living creatures, water
resources seem to be excluded from private ownership. Thus, under Talmudic Law:
‘Rivers and streams forming springs, these belong to every man.’ The existence of wells
belonging to the public domain and the right for every traveler to use them is also
recognized. Servitudes and rights of way limited the use of water on privately owned
lands, and the principle of compensation for the use of water also existed:’ And the
children of Israel said unto Him,’ We will go by the highway, and if I and my cattle drink
of thy water , then I will pay for it only, without doing anything else, go through on my
feet.’

Water utilized for domestic and irrigation purposes was subject to a certain order of
preference. In the case of several irrigators receiving water from a common well, the one
closest to the well conduit filled his cistern first, and the other irrigators did so in
descending order. In the case of irrigation water coming from a stream, including the
right of upstream riparian to divert the flow, Talmudic law does not seem to provide a
definite principle. One authority gives priority to downstream users, another to upstream
riparian. 42 Maimonides, a famous Jewish author, rules with the latter but adds that’ the
stronger one’s right is superior’ in any dispute between riparian.43 In another instance, a
distinction is made between the law in Palestine, where the upper riparian has priority,
and the laws in Babylon, which consider as the criterion the ease with which the
respective owner may use the water.

As for the use of a spring owned and utilized by a town for domestic purposes such as
drinking, watering of animals, laundering, etc., the order of priorities is established as
follows: ‘A sprig owned by the people of the city, their lives and the lives of others:
their lives take precedence over those of others; their beasts and the beasts of
others: their beasts take precedence over the beasts of other; their laundering and
the laundering of others; their laundering takes precedence over the laundering of

42
Dante A., Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp22
43 Ibid

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others; the lives of others and laundering: the lives of others take precedence over
their laundering.

For the maintenance of a well or of an irrigation ditch, all riparians shall assist those
closer to the source of water; thus, ‘The most downstream owner repairs with all other
riparians but repairs his own portion by himself.’ In the case of drainage operations it is
the most downstream riparian who benefits from the help of all; the most upstream
riparian, being the sole beneficiary of the most upstream segment of the drainage conduit,
is alone responsible for its maintenance.44

1.6.2. Existing Systems

To truly understand the existing systems of water law in individual countries it is

necessary to know to some extent their political, religious, social and legal backgrounds
together with other technical, physical, economic and related aspects. Water resources
policies, administrations and laws have developed through intercultural and
interdisciplinary contacts and largely reflect the influence of history and physical factors.
A short description of some of the major water law systems is necessary as a starting
point for a closer scrutiny of the existing situation in any one country.

In the eighteenth century, the French scholar Montesquieu made a wise statement when
he said, ‘Civil and Political laws must be so fitted to the country for which they were
enacted that it is a real coincidence if those of one nation apply to another.’45 While
earlier water regulations and administrations related mostly to one simple use or harmful
effect of water and to penalties for offences in water activities, with the increase in
different utilizations new concepts of water resources policy, administration and
legislation have evolved.

44
Ibid
45
Dante A.,Caponera, Principles of Water Law and Administration, National and International, (1992), Pp
65

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Present water administration and regulation derive from the original legal systems
prevailing in each individual country together with more modern concepts or
interpretations which have often been superimposed on pre-existing regulations, local
uses and customs. Generally, throughout the world, water law and administration derive
from one or a combination of more than one of the following legal principles and
systems: Customary law; Roman law, with its two main derivations, common law of
England (and new USA doctrines) and civil law; Islamic law; and Soviet law. Discussion
will be made on Water Law in Roman legal Systems, Common Law Legal systems and
Civil Law legal systems.

I. Water Law in Early Roman Law

Early Roman law recognized three classes of water rights: (i), private, which entailed
unlimited and unrestricted use subject to sale, acquisition or transfer of the land over or
under which the waters are located; (ii) common, entailing the right to use of such water
to everyone for any purpose, without limit or permission; and (iii)) public, when owned
by the State, their use being subject to State control.

Roman law has exerted great influence on the legislation of practically all modern
nations, and, in the course of history, the water law principles have taken three major
directions.

The approach which confers a privileged position on the owners of land adjacent to
watercourses, was one of the elements of Roman water law which in turn had a major
influence on conceptions of water rights in the influential European legal traditions, prior
to the introduction of modern water rights regimes. Indeed some of these influences can
still be observed. For example, Roman law denied the possibility of private ownership of
running water. The Institutes of Justinian published in A.D. 533-34 held that running
water was a part of the “negative community” of things that could not be owned along
with air, the seas and wildlife. At the same time it was recognized that things in the

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negative community could be used and that the right to use the advantage of the resource
needed to be regulated to provide order and prevent over-exploitation.

Roman law distinguished the more important, perennial streams and rivers from the less
important seasonal water bodies. The former were considered to be common or public
while the latter were private. The right to use a public stream or river was open to all
those who had access to them. Roman law, however, recognized the right of the
government to prohibit the use of any public water and required an authorization for
taking water from navigable streams. 46

In Roman law the right of ownership and use of water recognized to the landowner was
necessarily limited both by similar rights of neighboring landowners and by the rights
acquired by or granted to third persons by the state. As to the rights of neighbors, Roman
law, which regarded water as a constituent part of the land, left the owner entirely free to
dispose of all the water found on his land without any consideration for his neighbors but
made him liable to suffer similar treatment at their hands.

II. Water Law in Civil Law Countries

Water law principles in code countries are those which were codified by the Napoleonic
Code and found similar treatment in the water laws of France, Spain, Holland, Portugal,
Italy, etc. It is important to know that the feudal system, in which there was no concept of
private ownership of water, and the feudal lords and the king, had full control over land
and water within their jurisdiction, definitively ended with the French Revolution; a new
social class, the bourgeoisie, emerged with new economic interests. They have strongly
influenced the water laws of countries all over the world that were once under their
cultural influence. According to "code countries" theories, waters may be either public or
private.

46
Teclaff, L.A. 1985. Water Law in Historical Perspective, William S Hein Company, Buffalo, New
York,Pp26

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As a consequence of the new economic and political order, the Napoleonic Code
classified water in to two categories: private waters and public waters. According to this
definition, private waters were those located below, along or on privately owned land ;
public waters were those which were considered to be ’navigable’ or ‘floatable,’ this is
understandable, as under the new setup introduced by the French Revolution every object
necessarily had to belong to someone, either a private person, or the state or public
domain. The third legal status of water, i.e., the concept of waters common to every body
(res comunis omnium) which existed under Roman law, was eliminated from the new
legislation, contrary to what was retained in the common law of England.. Likewise, the
former pre-Revolutionary feudal system of land and water ownership disappeared. This
constituted an important departure from the original Roman system which considered
three types of ownership: private, common and public.

This distinction between public and private waters long retained an influence in the
countries of the civil law tradition. Generally speaking, while an administrative
permission was necessary for the use of public waters this was not necessary in the case
of private waters. The distinction was maintained by the French Civil Code - the Code
Napoleon - promulgated in 1804 after the French Revolution. Public waters were those
which were considered to be “navigable” or “floatable” and belong to the public or
national domain. Their use required a government permit or authorization.47

Private waters, which were those located below, along or on privately owned land, could
be freely utilized subject to certain limitations of a statutory nature such as servitudes,
rights of way etc. The right to use such private waters, both surface and underground,
derived from land ownership which recognized the right of the owner to use at pleasure
the water existing upon his land without any limitation. Similarly, the Spanish Water Act
of 1886 considered all surface waters that spring on a privately owned parcel, as well as
rainfall on that land, as private property, but only for its use on that land parcel (or the
estate of which that land parcel formed a part).

47
Ibid

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According to the civil law system, water may be public or private. Public waters are those
belonging to the public or national domain, and their utilization is subject to a
government permit, authorization or concession. In France, up to the law of 8 April,
1910, only ‘navigable and floatable’ waters belonged to the public domain. From that
date, other types of water could be included in this category if acquired by the state for
the purpose of public works. With the law of 16 December 1964, other waters were
included in the public domain, such those necessary for domestic water supply,
navigation, agricultural and industrial production.

The regime of underground waters under this system is rather ambiguous. According to
Article 552 of the French Civil Code, for example, ‘The ownership of land includes the
ownership of anything above and below. The owner may undertake underground …any
research which he wishes and abstract the relevant products there from…’ Water, as an
accessory of land, is one of those products. However, the landowner only owns the water
he is able to abstract; he has no rights on the aquifer itself, so that if his well dries up
because of the activities of a neighboring user, he can claim no compensation. This
situation arises in most countries which follow the civil law system.

Under the civil law system, one or more basic legal texts (constitution, land law, civil
code, rural code, or other legal enactment) define the public domain, i.e., a category of
goods which cannot be the object of private ownership. Generally, this category includes
‘public waters.’ As a consequence, the utilization of ‘public domain waters’ is subject to
administrative authorization, permit or concession. Land laws, water laws or other legal
enactments regulate the administrative regime of these waters.

Privately owned waters (i.e., those not being public waters) can be freely utilized, subject
to certain limitations of a statutory nature, such as servitudes, rights of way, etc. The right
to use such private waters, both surface and underground, derives from land ownership
(possession), which recognizes to the owner (possessor) the right to use at pleasure the
water existing upon his land without any limitation (ius utendi et abutendi). Yet the
practice of the courts has limited this absolute right of use by making it subject to

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numerous restrictions, particularly as regards the prohibition to pollute water, the care to
be exercised like the ‘father of the family’ and the protection of the use of water
belonging to the inhabitants of a village.

Finally, any right to use water under a permits system is subject to the payment of a water
rate. Fees may also be collected in the case of water-related activities such as, inter alia,
the extraction of gravel from river beds and for river crossings.

III. Water Law in the Common Law Legal System

The common law of England continued to apply the old Roman concept that water was
"res communis" and could not be the object of ownership, not even by the State or the
Crown. Any limitation to the use of water is to be declared through regulation. Recently
these uses have been brought under State control. This system has exerted immense
influence in the Eastern States of the USA, and on all recent water regulations enacted on
those countries once under English cultural Influence (Australia, New Zealand, India,
Pakistan, Sri Lanka, Burma, Hong Kong, Singapore, Malaysia, etc.). Subsequently, in
some Western States of the USA a new theory developed, the so-called "appropriation
doctrine". According to the appropriative system, a water right is created in favour of the
first who claims and uses the waters.

Within the USA, this doctrine of the Western States collided with Mexican water law
principles, giving rise to the new theories of "correlative rights" and of the "beneficial
uses of waters"

In Australia, the original principles had to be modified and adapted to the conditions of
water scarcity and under population of the country. A detailed legislation was enacted in
order to extend the right to use water to non-riparian, thereby encouraging irrigation in
the hope of achieving a closer settlement upon the land.

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In many countries following the common law system, many laws, ordinances, regulations
or other legal enactments (principal or subsidiary) are issued for administering or
regulating specific subjects related to water. Since they have sprung from needs arising
from local conditions, water enactments deriving from the common law of England are
not global, but pertain to a special region and often to a particular watercourse. Under the
common law system, of which the riparian doctrine is the expression, there can be no
ownership of or right of property in the running water of streams, rivers or natural
channels. Such water, regarded as transient and fugitive, is res comunis, public ijuris, i.e.,
it is common to all who can claim a right of access to it, and may be used in a reasonable
manner by a riparian landowner. Only the water which accumulates or falls on one's land
and is collected in artificial or natural drains and reservoirs may be privately owned; such
private ownership is limited to the time of possession. The same principle applies to
underground waters, which become the property of the person who abstracts them and
retains them in his possession.

The concept of ownership is relevant only in relation to the bed or to the banks of a river
and differs according to whether the river is tidal or non-tidal. According to court
decisions, a river is tidal only as to such lengths as are within the regular ebb and flow of
the highest tides; the bed of the river in those lengths, and of any estuaries, vests prima
facie in the Crown as far up the river as the tide flows and up to the high water marks of
ordinary tides along the shores of estuaries. The bed, however, may be the object of
statutory title, or the Crown's title may be granted to an individual. In any event,
ownership is subject to the respect of public fishing and Navigation rights as well as
Crown's titles. As regards non-tidal rivers, there is a presumption, in the absence of
evidence to the contrary, that the ownership in the bed vests in the owners of the adjacent
land up to the middle of the river. The owner of land on both sides of the river is
presumed to own the whole bed thereof. The public has no right to fish in such a river,
except with the license or consent of the riparian owner, but a non-tidal river which is
navigable is subject to a public right of navigation. The owner or occupier of land
adjacent to a natural stream is entitled jure naturae (i.e., by the law of nature) to the use
and enjoyment of the water flowing past his land as an incident of his ownership or

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occupation of such land. Such use takes place minister rio legis, i.e., by virtue of the law,
without the administrative interference of the responsible authorities. The right to the use
of flowing water is known as 'riparian doctrine. 'Furthermore, every landowner whose
property abuts on the banks of a stream or body of water is entitled to have the water pass
his land (or maintain a natural lake level) undiminished in quantity and not modified in
quality. This is the natural flow' doctrine.

While the riparian owner has the right to use the water flowing through his land for a
purpose not inconsistent with the rights of other riparian owners upstream and
downstream, an upstream landowner cannot diminish the quantity or injure the quality of
water which would otherwise descend, nor can a downstream proprietor block the natural
water flow without his license or consent. Any unreasonable and unauthorized
interference with the use of the water by a person entitled to it may be subject to an action
for damages and may be restrained by injunction, even if there has been no actual damage
to the plaintiff. The right of access to a stream includes, for a riparian owner whose land
abuts on a navigable river, the right to moor vessels alongside his frontage.

By the end of the nineteenth century and the beginning of the twentieth, conditions were
suited for a change from the riparian system throughout the British dominions. Indeed, it
is possible to' relate the development of irrigated agriculture to the abandonment of
riparianism and the introduction of a permit system. For instance, in the period
immediately preceding the First World War the State of Victoria, first among the
Australian states to abandon riparianism, became much more advanced in this sector than
its neighbors S01,lth Australia and New South Wales, which were slow in changing their
laws. At the beginning of the twentieth century, the Canadian Provinces of Alberta,
Saskatchewan and British Columbia vested all rights on water in the Crown, preserving
only domestic and pre-existing riparian rights. For other purposes, a license was required.

In England and Wales a permit system was systematically introduced by statute in 1963.
In other common law countries attempts are being made to establish a permit system, but
difficulties of implementation are being encountered for lack of adequate legislation,

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availability of manpower, extended size of the countries and, finally, for the resistance by
the populations to the introduction of any control over their water activities, often based
on customary rights. It is worth mentioning the attempts made in the United Kingdom
during 1990 to privatize the water industry, i.e., to transfer the ten water authorities of the
country to the private sector. It is possible that this policy is followed in other countries.

1.7. SCOPE OF WATER LAW

Having the concept of the meaning and development of water law, it seems logical here
to discuss the scope of water law. What issues are really covered under water law? The
concept of the juridical status of water, including ownership, may be relevant for
establishing successful control over the rights connected with the use of waters. The right
to use waters is a concept distinct from water ownership; very often, however, such a
distinction does not appear in existing water legislations. It is very important with respect
to the administration of water resources, whether their use is exercised over publicly or
privately owned waters. In any case, where waters are public property, any use may be
subject to government authorization, permit, license or concession.

Procedures for the issuance of water use permits or authorizations may be more or less
detailed, according to the administrative and economic situation of a country. They
include provisions concerning the authority competent for the issuance of water use
permits or authorizations, as well as kind, character, duration, reasons for forfeiture,
suspension, renunciation, abandonment, renewal, extension and modification of such
permits, procedures for the administrative determinations and claims against the issuance
or refusal of permits.

Water law addresses also the problems of (i) waste and misuse of water, (ii) recycling and
re-use of water, (iii) health preservation, and (iv) pollution control. These problems may
be, to a large extent, taken care of through ad hoc provisions, obligations and limitations
inserted in the permits, authorizations and concessions for water use, and the contracts
attached thereto.

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Provisions relating specifically to groundwater law may include (i) the establishment of
areas, or districts, in which the search for, extraction and utilization of underground water
are subject to control by the water administration; (ii) the licensing of drillers, (iii)
obligations to recharge groundwater aquifers, (iv) limitations of consumption through
various means, including the installation of water meters by the water administration, (v)
procedures and requirements in the case of water found incidentally, and (vi) interference
with minerals and oils.

In zones which have been declared as protected, restricted or rationed, the water
administration may impose, by public announcement, limits to water withdrawals or
diversions, prohibition of certain uses, priorities among uses and other limitations or
obligations dictated in the public interest.

Water administrations is also another aspect water law. Planning the development and
conservation of water resources requires a comprehensive and unified approach in order
to have as much detailed knowledge as possible of: (i) the availability of water
(inventory) both with regard to quantity and quality; (ii) existing utilizations; (iii) future
needs and requirements on the basis of population growth. These, in turn, require that
water be brought under a unified or coordinated administrative management.

Water law addresses this problem at every level, and it purports to define the duties,
powers, functions and degree of decentralization of that administration, down to, and
including, the associations of water users and special and autonomous water development
agencies.

Water law further encompasses the international aspects of water resources

administration, as it seeks coordination among national water policies and
administrations affecting international drainage basins or simply the international
sections of rivers and lakes.

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1.8. LAND TENURE AND WATER RIGHTS

1.8.1. General Overview

Throughout history, in many societies and legal traditions rights to use water and land
have been closely inter-linked. Sometimes, particularly in arid areas, the right to use land
depended on the application of water. More commonly, the right to use water depended
on the use or ownership of land or structures built on such land. In a sense, this is not
surprising as most water rights, apart from those relating to hydro-power generation, and
so-called “in-stream rights”, relate to the use of water on land. So discussing water and
water rights separately from land and land rights does not help students to grasp the idea.
Therefore, this section is concerned with the interface between land tenure rights and
water rights. The relationship between these two resources is of equal significance. Water
is necessary for most productive uses of land. In a growing number of countries with arid
climates the main constraint to agricultural growth is the availability of water rather than
land. At the same time the use of land has major impacts on both the quality and quantity
of water resources. In other words, decisions regarding the use and allocation of one
resource impact directly or indirectly on the use and allocation of the other. To ensure
sustainability, the need for an integrated approach to the use and management of these
resources is increasingly recognized.

The principal mechanism for the allocation of land and water resources is the institution
of legal rights: land tenure rights and water rights. The substance of such rights and the
manner in which they are allocated have major implications for the use and management
of land and water resources as well as for the social and economic development of states
and their citizens, with particular impacts on the livelihoods of the poor.

At the outset it is important to recognize the fundamentally important role that land
tenure rights have played throughout history in the socio-economic development of states
and nations, a role that they continue to play. A primary production factor, source of
employment and repository of personal wealth, land performs an economic function of

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paramount importance. In many societies, both social status and power depended, and
indeed continue to depend, on the size and structure of land holdings. What form land
tenure rights should take and how those rights are or should be allocated therefore raise
questions that are fundamentally political in nature. The answers to those questions, in
the shape, form, content and allocation of land tenure rights, land tenure regimes and
reforms to such regimes are themselves symptomatic of what are ultimately ideological
expressions of the relationship between humans and the land.

In many jurisdictions, water rights have for a long time been considered as a subsidiary
component of land tenure rights, a right to use water often being dependant on the
existence of a land tenure right. In contrast to land tenure rights, however, debate over
water rights and their reform has tended to be less concerned with ideology than with
hydrology, with hydraulic engineering than with social reform. In short, water rights have
had a much lower popular profile than land tenure and land rights.

However, in jurisdictions with arid climates or in times of drought and water shortage
water rights rapidly climb national political and socio-economic agendas. The traditional
response to water shortages has been an engineering response, through the construction
of dams to store water and canals and pipelines to convey it to those places where it is
needed. An increased awareness of the environmental costs of this kind of approach and a
growing reluctance on the part of governments to meet the financial costs, together with
the fact that in many cases the cheaper and easier schemes have been constructed, means
that increased focus is being placed on the better management and allocation of available
water resources.

Indeed as the world's water resources come under increased pressure, the importance of
water rights is likely only to increase. Already, around one third of the world's population
live in countries that suffer from moderate to high water stress. Continued population
growth and the effects of climate change, a phenomenon whose eventual impacts are not
yet fully understood, suggest greater pressure still: it is reckoned that the demand for
water will increase by around 50 percent in the next 30 years and that around 4 billion

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people, one half of the world's population will live in conditions of severe water stress by
2025.

Largely, as a response to increased concerns about the quality and quantity of water
resources, the last thirty or so years have seen many countries undertaking substantial
reforms to water sector legislation and thus to water rights. In contrast to the trend
towards private ownership and private rights in the land tenure sector, reforms to water
legislation have seen the assertion of state control over water resources and the
introduction of complex regulatory mechanisms for the allocation of administrative water
rights. Furthermore, in a number of jurisdictions, such water rights have become fully
tradable and there is currently much speculation as to the extent to which this approach
may be replicated elsewhere.

1.8.2. What Are Land Tenure Rights and Water Rights?

First of all, land tenure rights and water rights are legal rights. As such they are capable
of being asserted against the state and third parties in a court of law. In the case of a
dispute, a right holder can legitimately expect a valid right to be upheld by a court and as
necessary enforced through the machinery and coercive power of the state. Loss of, or
damage to, a land right or a water right is prima facie subject to the payment of
compensation and the right to such compensation is enforceable in the courts.

Second, land tenure rights and water rights have the same basic purposes. From the
perspective of society they permit the orderly allocation of valuable resources. From the
perspective of the right holder, they confer the necessary security to invest in the resource
or activities entailing its use. When rights are secure and tradable the holder may also be
able to use them as collateral through a mortgage to raise credit.

Third, while most societies since ancient times have had their own rules concerning rights
to use land and water, modern conceptions of formal land tenure rights and water rights
are both overwhelmingly influenced by European notions of land and water as reflected

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through the two European legal traditions: the civil law tradition and the common law
tradition.

Having considered their status, purpose and background the question what are land tenure
rights and water rights? Needs to be answered, here.

Land Tenure Rights: As regards the substance of land tenure rights, a definition of
“land tenure” proposed by FAO seems a logical place to start.48 It is:
A legal right which defines the relationship, whether legally or customarily
defined, between people, as individuals or groups, with respect to land.

The definition first suggests that land tenure rights are “legal rights” that define the
relationship between people, whether as individuals or groups and land. However, it then
goes beyond formal legal rights to include customary rights. Thus an examination of land
tenure “rights” that addresses only formal rights will risk omitting coverage of a large
aspect of the concept of land tenure.

Another definition notes that the expression “land tenure” is originally a legal term that
means the right to hold land rather than the simple fact of holding it. The word “tenure”
derives from the Latin term for “holding” or possession and its use in this context derives
from the English feudal period when, following their conquest of England in 1066 the
Normans declared all previous land rights void and replaced them with grants from the
new King. As such the concept applied to the terms on which land was held, in particular
the rights and duties of the holder.

Both of the main European legal traditions distinguish between property rights relating to
land and those that relate to other goods. “Immovable” property rights in the civil law
tradition and “real” property rights (or “realty”) in the common law tradition that relate to
land are distinguished from “movable” or “personal” property, sometimes described as

48
http://www.fao.org, as referred on May 2008

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“chattels”.49 As it will be seen below, many ongoing reforms currently seek to promote
the concept of private property rights, specifically rights of land ownership. But while
important, ownership is not the only type of land tenure right.

The other principal type of land holding envisaged under the European legal traditions is
leasehold tenure whereby land is rented by a “tenant”, someone other than the owner, for
a specified period, usually in return for the payment of “rent”. The owner may be a
private landowner or the state and rent can be payable either in money or in kind. While
leases created in respect of certain types of land or premises may be subject to specific
statutory provisions that restrict, for example, the level of rent that can be charged or the
circumstances under which the lease can be determined or even extended, the parties to a
leases are otherwise free to agree on the level of rent payable and indeed the term of the
lease, which may last from a few weeks to a thousand years. Such an agreement, the
“lease” or “lease agreement”, will usually specify the use or uses to which the land will
be put and will also specify the mutual obligations of the parties. Of course the parties to
a lease must also comply with any prescribed legal formalities concerning the form or
content of a lease. 50

Land tenure is, however, concerned with far more than ownership, lease and use rights.
The unique and immovable nature of land means that it is frequently subject to numerous
simultaneous uses, claims and legal rights. Take, for example, a single parcel of privately
owned land. Part of this land may be subject to a lease. The remainder of the land may be
subject to a legal charge or mortgage, whereby money is lent against the security
provided by the land. An owner of an adjacent parcel of land may hold a right of way
over part of the land parcel (an “easement” or “servitude”) or rights to use part of that
parcel for a specific purpose, such as a right to graze livestock or to gather timber (a use

49
In the common law tradition a land parcel includes any buildings or structures attached to that land and
they are thus included in the category of “real property”. Buildings and structures are similarly classed as
immovable property in the civil tradition, although in some jurisdictions a building may be owned
separately to the parcel of land on which it is situated.
50
Quan, J, Land Tenure, Economic Growth in Sub-Saharan Africa (Eds) Evolving land rights, policy and
tenure in Africa , DFID/IIED/NRI London, (2000), Pp. 33.

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right or right of usufruct). At the same time the land parcel may benefit from a similar
right over an adjacent parcel.

These kinds of relationships are all the subject of land tenure legislation, regulated either
in the relevant code, in the civil law tradition, or in the other laws and on the basis of
court decisions in the countries that follow the common law tradition. One way or
another, such rules and principles have generally followed the spread of European
concepts of land tenure.

Water rights: Modern water rights, by contrast, are not subject to multiple subordinate
rights, even though the water that is the subject such rights is quite likely to be subject to
multiple uses. So what are water rights?

The first point to emphasize is that water rights, as the term is commonly understood,
have nothing to do with the so-called “right to water”, a putative human right which is
claimed to exist either as a right in itself or as an ancillary aspect of the “right to food”
created by article 11 of the International Covenant on Economic, Social and Cultural
Rights.51 Nor should water rights be confused with provisions contained in progressive
constitutions such as the “right of access to water” found in that of South Africa.

Instead water rights are concerned with the removal (and subsequent use) of water from
the natural environment or its use in that environment. In essence a water right is a legal
right: to abstract or divert and use a specified quantity of water from a natural source; to
impound or store a specified quantity of water in a natural source behind a dam or other
hydraulic structure; or to use water in a natural source.

51
Article 11 of the International Covenant on Economic, Social and Cultural Rights, provides that everyone
has a right to an adequate standard of living for himself and his family including adequate food, clothing
and housing. The “Right to water” was developed in General Comment 15 on the Covenant by the
Committee on Economic, Social and Cultural Rights. Such “General Comments” constitute authoritative
interpretations of the provisions of the Covenant to clarify the normative contents of rights, States parties’
and other actors’ obligations, violations and implementation of the rights at national level.

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But water rights frequently go beyond an entitlement to a mere quantity of the simple
chemical compound which is water: the flow of the water is also an important component
of a water right.

A “natural source” includes a stream, river or lake, a reservoir created by the damming of
a river, a swamp or pond as well as groundwater from a natural spring or a well.
Historically, much of the focus of water law, and thus conceptions of water rights, has
been based on rights to abstract and use water from streams and rivers, more specifically
from the abundant and perennial streams and rivers of Europe.52 This, as will be seen, has
had, and indeed continues to have, implications for the export of European notions of
water rights to countries with vastly different climatic and hydrological conditions.
The main uses to which water abstracted on the basis of a set water right are agricultural
(for irrigation and livestock watering), industrial including its use as a coolant in thermal
power stations, and urban including use for domestic drinking water, household and
commercial purposes. Rights to impound water are either a precursor to abstraction (for
example where water is held in a reservoir prior to its use for irrigation) or relate to the
use of water for hydro-power generation.

As to their legal form, while in some jurisdictions (such as the western states of the
United States of America in which the “prior appropriation” doctrine applies) water rights
are still created by operation of law, water rights are mostly now created on the basis of a
legal instrument issued by the state agency responsible for water resources management
(the “water administration”). Such instruments are variously described in legislation as
“licenses”, “permissions”, “authorizations”, “consents” and “concessions”.

The question arises here is are they property rights? Arguably they are. The fact that they
gain their existence from an administrative or regulatory procedure does not by itself
preclude them from being property rights. After all, intellectual property rights in the

52
For practical reasons water in streams and rivers has tended to play a more important role than water in
lakes and ponds as far as water rights are concerned as the gradient of flowing water makes it easier and
cheaper to abstract. Water from a lake or pond must generally be pumped as the surrounding land will
usually be above the level of the water body’s surface

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form of trademarks and patents are usually acquired through an administrative procedure.
A full discussion of this matter is beyond the scope of this material. The key point to note
is that although water rights are now generally created under public or administrative law
on the basis of legal provisions, they have, as will be seen, many but not all of the
attributes of private property rights, such as land tenure rights. Indeed without such
attributes, a water rights system simply would not be able to function effectively.

REVIEW QUESTIONS

1. Discuss the development of Water Law. Try to address its development in early
documents and in the two prominent legal traditions.

2. Water law addresses different issues and problems related to water use and
administration. Discuss the scope of water law in detail.

3. Throughout history, in many societies and legal traditions rights to use water and
land have been closely inter-linked. Discuss.

4. Define and discuss land rights and water rights.

5. Define surface water and groundwater.

6. How does groundwater occur?

7. Discuss the reason for the water conflict of water use in the Middle East and the
endeavors taken to solve the problems.

8. Briefly discuss the reasons for the conflict of water in the Nile Basin.

9. How do you see the application of 1959 agreement between Egypt and Sudan in
light of the international water laws?

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CHAPTER TWO:THEORIES OF WATER RIGHTS

INTRODUCTION

Demands on water resources continue to increase and so does the need for conservation
and more efficient uses. So more focus should be given on how to allocate and use water
resources in a manner which can meet the increasing demands of the world community.
Countries and states in different jurisdictions may set up different ways of allocating
water rights to citizens. Prominently, all legal system follow either the riparian doctrine
or the prior appropriating doctrine and some the hybrid one. In this chapter, students will
be clear with the concept of water rights and their applications to different kinds of
waters in different legal systems.

SECTION ONE: RIPARIAN DOCTRINE

2.1. RIPARIAN DOCTRINE

Water rights have four important dimensions;

1. Acquisition: How do you acquire the water right?
2. Enjoyment: What restrictions are on the water rights?
3. Loss: Under what conditions are water rights extinguished?
4. Transfer: Where, when, and to whom can you transfer water rights?

The doctrine of riparian water right encompasses lots of theories to entertain all the above
dimensions. So what are riparian rights?

The original definition of "riparian" was derive from its Latin origin, ripa, meaning "bank
of a stream." But in law, the term "riparian" may refer to land different than what
geographically extends away from the stream. Legal definitions may be as inclusive as all
the land under the continuous title of the same landowner whose ownership begins beside
the stream. This doctrine may have originated in early English water law, which was

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borrowed in part from Roman Civil Law. The doctrine recognizes the right of a riparian
owner to make reasonable use of the stream’s flow, provided the water is used on
riparian land. Riparian land is that which is contiguous to a stream or other body of
surface water.

Land ownership accompanies the right of access to, and use of, the water, and this right is
not lost by nonuse. Riparian rights are a form of real property, a part of land law. The
rights are appurtenant to the land; that is, they are attached to it in the sense that a person
who purchases or inherits riparian land automatically acquires the water right. Under this
doctrine, the law gives equal rights to the use of water to owners (possessors) of land
which borders upon or touches a stream or watercourse. A riparian right to the use of
water exists whether the use is made or not; hence, a riparian owner can initiate a use at
any time and insist that his rights be accommodated with other uses or that a share of the
water be allotted to him.

The nature of the right is usufructuary - the riparian does not own the water, but owns
only the right to use it on his riparian land and to have it flow to his land so that it may be
used. Riparian law seems to be based upon an unspoken premise that if rights to use are
restricted to those persons that have access to the water through the ownership of the
banks, and if those persons will restrict their demands on the water to reasonable uses,
there will be enough for all.

The principle on which early riparian theory rested was that, land owners with property
neighboring to a stream or body of water, had natural rights which enabled them to share
equally in the privilege and benefits of the fortuitous location. The use of stream water,
hence, is restricted to owners of land which is riparian to the stream. The right of such
owner is said to arise from ownership of the land. No water right existed without
landownership was, therefore, the premise from which the riparian theory preceded. If it
is made clear that such rights arose automatically with the ownership of riparian land, one
must emphasize the old maxim-use does not create, nor disuse abrogate the right.53 That

53
Bontu, Tokuma, Water Law in Ethiopia, AAU, (1987), Pp.21

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means, Land ownership accompanies the right of access to, and use of, the water, and this
right is not lost by nonuse.

As we can understand from the above paragraph, the right to use water is a property right
which says only persons who own land that is in actual contact with inland waters such as
streams, rivers or lakes are granted riparian rights. Swamps and overflow lands are
excluded; only land that is snowed under at the average high tide is considered to be
riparian land.

An owner or possessor of land that abuts a natural stream, river, pond, or lake is called a
riparian owner or proprietor. Water laws give riparian owners certain rights to water that
are incident to possession of the adjacent land.

Second, riparian owners may be entitled to the "reasonable use" of a watercourse. States
that recognize the reasonable use doctrine found the natural flow doctrine too restrictive.
During the industrial revolution of the nineteenth century, some U.S. courts applied the
natural flow doctrine to prohibit riparian owners from detaining or diverting a
watercourse for commercial development, such as manufacturing and milling, because
such development impermissibly altered the water's original condition.

2.2. RIPARIAN RIGHTS TO NATURAL FLOW

The natural flow concept is tied with the maxim applied since 1625 that water runs and
ought to run, as it has been accustomed to run. According to this doctrine, the
fundamental right of each riparian owner on a watercourse is to have the body of water
maintained in the natural state not diminished quantitatively or impaired qualitatively.
The stream must be returned to its original course on leaving riparian land. On the other
hand, it is stated that the riparian user may exhaust the entire flow if necessary to satisfy
his domestic needs. He is also allowed to make use of water for artificial or commercial
uses as long as he doesn’t make substantial changes in its natural conditions. Therefore,
the riparian doctrine allowed the riparian proprietor to enjoy the usufructory right to the
ordinary flow along or over his land, in its customary channel, undiminished in quantity
and unimpaired in quality except as changed by act of God. That means riparian owners

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have a right to enjoy the natural condition of a watercourse, undiminished in quantity or

quality by other riparian owners. Every riparian owner enjoys this right to the same
extent and degree, and each such owner maintains a qualified right to use the water for
domestic purposes, such as drinking and bathing. However, this qualified right does not
entitle riparian owners to transport water away from the land abutting the watercourse.
Nor does it permit riparian owners to use the water for most irrigation projects or
commercial enterprises. Sprinkling gardens and watering animals are normally
considered permissible uses under the natural flow doctrine of riparian rights.

Theoretically, this natural flow guaranteed each riparian owner the same rights
irrespective of claims made by other riparian as, for example, where a riparian took the
whole flow for natural resources, i.e , those arising from the necessities of life, and left
nothing in the stream for the lower riparian. In other words, when a riparian owner’s
natural right was impaired he had to show his injury.54

2.3. REASONABLE USE AND RIPARIAN RIGHTS

The reasonable use test applied to the purpose of the use of riparian doctrine and it
determines whether a riparian has received a fair share as, for example, where there are
two riparians on opposite sides of a stream. Unlike the natural flow doctrine, which seeks
to preserve water in its original condition, the reasonable use doctrine facilitates domestic
and commercial endeavors that are carried out in a productive and reasonable manner.
Here the rights of a riparian is qualified only by the correlative rights of other riparians
made by certain paramount rights of the public, to use the water for boating, bathing,
hunting, fishing and recreation.

When two riparian owners assert competing claims over the exercise of certain water
rights, the doctrine tries to measure the economic value of the water rights to each owner.
It also try to evaluate the prospective value to society that would result from a riparian
owner's proposed use, as well as its probable costs. Lots of factors may be considered.

54
Clark, Robert, Emmat, Water and Water Rights, Vol.1, (1967), Indiana Pp.289-292

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The test of reasonableness is also applied to pollution problems where riparians have
conflicting claims to purity and utility. The test is also applicable where the flow of the
stream has been changed by dams, flood prevention structures, or where the current is
changed. The test of reasonableness has great flexibility but it is also difficult to apply
within the framework of the two sets of variables, the “utility of the use” weighed against
“gravity of the harm”. The reasonable-use test has been criticized on the ground that it
does not in fact produce results which are different from those reached under natural flow
theory.

2.4. EVOLUTION AND CURRENT PRACTICES OF RIPARIAN RIGHTS

The origin of the riparian doctrine is the subject of sharp disagreement. Some believe it is
a product of the civil law; others maintain it has its roots in the English common law. The
disagreement exits not only between the prominent legal traditions, but also between
countries. For instance, many American writers asserted that there are many precedents in
France and England, but riparian right, as of them, is essentially an American doctrine.
There is also a difference markedly as to when did the doctrine occur. One point of view
is that the common law of watercourses is not the ancient result of the English law, but is
a modern French doctrine received into English law only through the influence of two
eminent American Jurists, Story and Kent. The other thesis rejects the conclusion that the
common law has been riparian in character from early times, and that American law,
even before Story and Kent, was Riparian. 55

With all the disagreements, many writers and published works stated that in Roman times
the law was that people could obtain temporary usufractuary rights for running water.
These rights were independent of land ownership, and lasted as long as use continued.56
In Medieval times, however, the common law of the day treated a stream as static,
meaning landowners owned parts of rivers, with full accompanying rights. Land owners
could also seek damages for loss of water diverted upstream. Non-land owners did not
55
Clark, Robbert, Emmet, Water and Water Rights, V-I, (1967), USA, Pp.60
56
Guerin, K., Property Rights and Environmental Policy: A New Zealand Perspective, New Zealand,
(2003).

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have us rights, except by obtaining a prescription. Over time, rights evolved from being
land based to use based, allowing land owners to hold enforceable rights. That means a
reasonable use right has evolved.57

Riparian doctrine, becoming part of the common law of England, it is developed there.
England developed a regular system of courts and lawyers only after the Norman
Conquest. Prior to 1066, English society is largely decentralized, and disputes concerning
water were apparently settled locally. The early English law of water rights resembled the
modern prior appropriation system (See the next section on prior appropriation). One
who has made use of a stream for long period of time was entitled to continue even if the
use deprived others of the natural flow of the stream. In the 18th century, the England
courts modified this doctrine of “ancient use” and substituted a test of “prior use”. Under
this test, one could not use or divert water if the effect would be to deprive a prior user of
water. The principle protected earlier mills from interference with their water supplies by
newer mills.

The prior use test was short-lived. In the 1820s the English courts began to accept a
“natural flow” under which every riparian land owner, including important industrial
users, had an equal right to use water in the stream a duty not to diminish the quantity of
water otherwise flowing to proprietors lower in the stream. The principle of natural flow
theory remained a law in England for a few decades until the English judges incorporated
the “reasonable use” theory into English riparian doctrine. Application of reasonable use
principle modified the natural flow theory by allowing each riparian the right to make all
reasonable uses of the waters so long as those uses did not interfere with the reasonable
use of others.58

In the United States, there are two divergent systems for determining water rights.
Riparian water rights are common in the East (all those East of Texas, except
Mississippi) and prior appropriation water rights (developed in Colorado and California)

57
Ibid
58
Getches, David, H., Water Law in a Nut Shell, 3rd ed., USA, 1997, Pp.18

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are common in the West. Each state has its own variations on these basic principles, as
informed by custom, culture, geography, legislation and case law. California law, for
example, includes elements of both systems.

Currently, in the United States, all riparian states have adopted some form of the
reasonable use doctrine, departing from early riparian doctrine. Thought some courts
continue to use “natural flow” language, most actually apply some variant of reasonable
use doctrine.

2.5. RIPARIAN LAND AND WATER COURSES SUBJECT TO RIPARIANRIGHTS

This section defines what constitutes riparian land and the type of water bodies in which
the owner of adjacent land may hold rights.

What are Riparian lands?

We may say that all land is a riparian land due to the fact that all landmasses are
surrounded by bodies of water. However, we cannot manage water rights in this way. For
the sake of feasible administration of water rights and water resource management, there
should be an artificially created concept of ownership (possession) of land that
distinguish between riparian and non riparian. Only the owner of a parcel of land sharing
a border with the water courses (touching the watercourse) has riparian rights. Riparian
rights to use water attach only to riparian land and do not extend to any portion of the
tract that is outside the immediate watershed of the water body.59

Watercourses Subject to Riparian Rights

Only certain waters are subject to riparian rights. Riparian rights only attach to water in
watercourses and not in diffuse surface waters. Diffuse surface waters are waters that are
spread over the surface, whereas a watercourse has a definite natural channel and a bed

59
Getches, David, H., Water Law in a Nut Shell, 3rd ed., USA, (1997), Pp 23

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with banks. Diffuse waters are generally storm or flood drainage, and these do not
constitute riparian rights. Waters subject to riparian rights, therefore, are Streams, Lakes,
Ponds, Springs and other water bodies Streams are watercourses which flow in a
reasonably definite natural channel. Different from streams, lakes and ponds are static by
their nature. Lakes rest at depressions and they are reasonably permanent. Ponds are
relatively smaller bodies of water with an abundance of aquatic life. A spring is a
concentrated flow of water coming to the surface from underground. Whether the owner
of land with a spring on it has riparian rights depends upon the source of the spring. The
riparian doctrine usually applies to springs emanating from definite underground
watercourses, landowners being entitled only to make reasonable use of the waters from
the springs.

2.6. NATURE OF RIPARIAN RIGHTS

Under the riparian doctrine rights attach to riparian land; i.e., land bordering on a natural
stream or lake, by virtue of its location. The riparian landowner does not actually own the
water body, but does own numerous rights in it. In this sense the owner of the riparian
land has a significant property interest in the water body.

The owner’s rights include

• The right to flow of the stream

• the right to make a reasonable use of the water body provided reasonable uses of
other riparians are not injured
• the right of access to the water body
• the right to fish
• the right to wharf out
• the right to prevent erosion of the banks
• the right to purity of the water
• the right to claim title to the beds of non-navigable lakes and streams

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The ownership of riparian land not only creates rights it also creates duties. Each riparian
land owner has a duty to refrain from interfering with the rights of fellow riparians.
Riparian rights are further limited by public rights to use the surface of certain
waterways. At common law all persons had the right to travel any navigable river and
the associated rights to hunt and fish along the river. Today public uses include not only
navigation but recreation, and public rights have been extended to non-navigable waters
in many states.

Preference for Natural Uses

Riparian law distinguishes between natural uses and artificial uses. Natural uses include
those that meet the domestic needs of the riparian landowner such as drinking, washing
and watering small gardens or a few livestock. Under the natural flow rule a riparian
could use water for natural (i.e. domestic) purposes even if it diminished the flow to the
harm of lower riparian.

The reasonable use doctrine also reflects a preference of natural uses. In most countries,
particularly in most states of the United States, any riparian can make natural uses of the
water in the adjacent stream regardless of the consequences to lower riparian, while
artificial uses such as for irrigation and industrial purposes are subject to reasonable
restrictions.

There are practical reasons for the preference for natural uses. First, such uses are
unlikely to consume enough water to injure lower riparian. Second, enforcement of any
restriction on domestic uses is difficult. Finally, such uses as are necessary to sustain life
are bound to be reasonable. Irrigation, industrial and mining uses are artificial uses. So
all these activities are subject to reasonable use doctrine.
Any riparian doctrine has the following characteristics: 60
• Riparian rights are of equal priority

60
Bontu,Tokuma, Water Law in Ethiopia, (Unpublished), AAU, (1987)

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• Ownership of land which is riparian to a stream confers rights to the use of waters
of this stream
• An owner of such land may use the water only on the riparian tract of land and
may not use it himself or sell it to others (it cannot be transferred)
• Between themselves riparian owners, on a given stream, may be subject to one of
the two principle allocation theories; natural flow and reasonable use. Natural
flow and reasonable use are two separate and distinct concepts recognized under
the riparian doctrine relating to the right to use water.
• The Right is not quantified, rather it extends to the amount of water which can be
reasonably and beneficially used on the riparian parcel
• Riparian rights are correlative, during times of water shortage; the riparian
proprietors share the shortage
• Water may be used only upon that portion of the riparian parcel which is within
the watershed of the water source
• The riparian right does not extend to seasonal storage of water
• The riparian rights remains with the land when riparian lands are sold
• A riparian right is not lost by non-us

2.7. LIMITS OF RIPARIAN RIGHTS

i. Reasonable Use Limitation

All riparian states follow some variant of the reasonable use doctrine. The reasonable use
rule allows riparian landowners to use adjacent water if the use does not interfere with the
reasonable uses of other riparians. Reasonableness thus is determined in comparison with
the uses of other riparians. Riparian countries may have specific rules to deal with
specific problems. They include preferences for some type of uses over others and rules
governing municipal uses.61

61
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Under theoretical limits of the natural flow rule, each riparian had right to stream flow
undiminished in quality and quantity and the right to make only limited uses of the water
as it flowed past. The rule was empirical because a riparian landowner could obtain an
injunction against any person who depleted the water flowing past the land, even if the
landowner was not injured. Thus reasonable use principles prevailed.

Particularly in United States, disputes between riparians will be determined by comparing

the reasonableness of the riparian with the reasonableness of the uses of other riparians.
There is an analytical framework which should be followed by courts to decide over such
questions. The determination of the reasonableness of a use of water depends upon a
consideration of the interests of the riparian proprietor making the use, of any riparian
proprietor harmed by it and of society as a whole. Factors that affect the determination
include the following:

• the purpose of the use

• the suitability of the use to the watercourse or lake
• the economic value of the use
• the extent and amount of the harm it causes
• the practicality of avoiding the harm by adjusting the use or method of use of one
proprietor or the other
• the practicality of adjusting the quantity of water used by each proprietor
• the social value of the use
• the protection of existing values of water uses, land, investments and enterprises;
and
• the justice of requiring the user causing harm to bear the loss

ii. Limitations to non-riparian uses

Most countries laws restrict use of water to riparian land. As it is stated before, riparian
lands are only the portions of parcels that abut a watercourse that are within the same
watershed. Because non-riparian uses are unreasonable per se, they are adverse to the

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other riparian. A non-riparian use that is relatively more valuable to society than
conflicting riparian uses presumably should be allowed.

2.8. LOSSES OF RIPARIAN RIGHTS

Riparian water rights cannot be lost through non-use and are indefinite in duration.
Therefore, a riparian landowner does not lose hisher riparian right by not putting the
water to use. This is because, riparian rights attach only to riparian land, it follows that
the owner of a riparian parcel also owns riparian rights in the adjacent water body
whether those rights are exercised or not. Use cannot create the right and disuse cannot
destroy it. Riparian rights can, however, be lost through prescription. Prescription, mostly
found in common law legal traditions, is a process of involuntary transfer from one party
to another. Under prescription, a party making open use of water for the proper time
period, gains title to the water right superior to that of the original holder.

The second doctrine in water appropriation is the doctrine of Prior-Appropriation. So in

the next section we will make detailed discussions on water rights acquired through prior
appropriation.

SECTION TWO: PRIOR-APPROPRIATION DOCTRINE

2.9. THE DOCTRINE OF PRIOR APPROPRIATION

The prior appropriation, or “first in time-first in right”, developed in the Western United
States in response to the scarcity of water in the region, i.e., to serve the practical
demands of nineteenth century water users in the Western United States. The doctrine
evolved during the California gold rush when miners in California needed to divert water
from the stream to locations where it was needed to process ore. Customs and principles
relating to water diversions developed in the mining camps in 1848, and disputes were
resolved by simple priority rule. The main features of this doctrine states that priority of
rights must be based upon actual use. The California Supreme court recognized the

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doctrine in 1855. The court held that the parties were trespassers on the public domain
and could not have riparian rights, but that the customs of the miners should prevail. 62

Though the legal details about the theory of prior appropriation vary from country to
country; however, the general principle is that water rights are unconnected to land
ownership, as in riparian doctrine, and can be sold or mortgaged like other property. The
first person to use a quantity of water from a water source for a beneficial use has the
right to continue to use that quantity of water for that purpose. Subsequent users can use
the remaining water for their own beneficial purposes provided that they do not impinge
on the rights of previous users. Therefore, Priority of rights is the distinguishing feature
of appropriation doctrine.

Unlike a riparian right, an appropriative right exists without regard to the relationship
between the land and water. An appropriative right is generally based upon physical
control and beneficial use of the water. These rights are entitlements to a specific amount
of water, for a specified use, at a specific location with a definite date of priority. An
appropriative right depends upon continued use of the water and may be lost through non
use. Different from riparian rights, these rights can generally be sold or transferred, and
long-term storage is not only permissible but common. Another feature of an
appropriative right is that the water may be used in connection of non-riparian as well as
riparian lands. The water right as shown earlier is separate from rights in land although it
may be declared to be appurtenant to specific lands. However, it may be served from
particular land. The water right is generally subject to transfer to a different place and to a
new or different use.

The appropriation system creates two kinds of users; Senior and Junior Appropriators. A
senior appropriator is a user whose appropriation is prior to all others. The rights that a
senior appropriator possesses are impressive. The amount of water that a senior
appropriator is authorized to use is dependent upon whether a particular state uses a

62
Robert Emmet Clark, Water and water rights, Indiana, (1967), PP. 293

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permit system. In states without a permit system, the senior appropriator is entitled to a
fixed amount of water equal to the amount that was originally withdrawn when the use
first became vested. Some countries have established a permit system by which the senior
appropriator is entitled to the amount of water specified by the permit. In these states, this
amount is derived through a mathematical formula that incorporates many of the
variables that determine the amount of water needed. These variables include water
quantity limitations, conditions of transmissions, location of land, degree of slop, depth
and character of soil, length of growing season, nature of crops and climate. The holder
of such permit is perpetually entitled to the right to use this water allotment as long as the
63
water is used beneficially. Appropriators who enter into the inappropriate supply of
water after the senior appropriators are known as junior appropriators. Senior
appropriators who want to withdraw more water than their vested amount are considered
to be junior appropriator for that additional withdrawal.

In this doctrine, priority is given to those with older water rights. Here the question is
how can we establish older water rights? The right of individuals to use water under the
prior appropriation system is based on application of a quantity of water to a beneficial
use. Therefore, the date of the appropriation determines the user’s priority to use water,
with the earliest user having a superior right. If water is insufficient to meet all needs,
those early in time of appropriation (senior appropriators) will obtain all of their allocated
water; those who appropriated later (junior appropriators) may receive only some, or
none, of the water to which they have rights.

There are four essential elements of the prior appropriation doctrine: intent, diversion,
beneficial use and priority of water rights. That means, the cornerstone of the doctrine of
prior appropriation is that a valid claim for water rights must be based on evidence of
intent to withdraw water, the construction of a diversion, and putting the water to
beneficial use. Let us discuss them one by one.

63
Andrew, A. Dzurik & david A., Theriaque, water Resource Planning, London, pp.29

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Intent: The Doctrine of Prior Appropriation entails that the acquisition of water requires
that the appropriator demonstrate an intent to appropriate the water. Thus, one who
diverts water away from its normal flow pattern in order to prevent flood damages is not
an appropriator. Historically, intent was indicated by on-the-ground acts such as site
surveys, land clearing, preparation of diversion points, and most importantly, posting of
notice. Today, however, intent is generally indicted by the application of a permit. The
appropriator is expected to demonstrate his/her intent to appropriate water and make
beneficial use by filing of an application to appropriate and adherence to the requirements
of the permit system. 64

Diversion: Another essential component of a prior appropriation water right is diversion.

A common method of diversion is to build a dam across a stream, directing water into a
cannel or ditch. Other methods of diverting water include reservoir, flumes, pumps, and
even water wheels. However, some argue that physical diversion of water has been
diminished as lots of states have been implemented various instream flow programs. A
point of diversion, however, is still an essential element of a consumptive use water right.
The diversion requirement historically provided notice to present and prospective
appropriators that water had been appropriated. The capacity of diversion works could be
used to define the quantity of water appropriated. These functions of the requirement are
not important where there is a permitting system. Thus, this requirement of diversion is
clear particularly before the introduction of permit system. During that time an
appropriation was made by taking some physical act of reducing the water to the
dominion and control of the appropriator.

Beneficial Use: Beneficial use is perhaps the most important characteristic in defining a
prior appropriation water right. It is used to determine whether a certain use of water will
be recognized and protected by law against later appropriations. The justification of
beneficial use criteria is to prevent waste of water, which is an important consideration in
areas of water shortage. Water rights can be lost for nonuse, as articulated "use it or lose
it." Therefore, countries must determine what uses of water are acceptable. Countries

64
Getches, David, H., Water Law in a Nut Shell, 3rd ed., USA, (1997).

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which follow prior appropriation consider domestic, municipal, agricultural, and

industrial uses to be beneficial uses. Recognized types of beneficial uses may be defined
and elaborated by countries laws.

Priority of Water Rights: The final essential feature of the prior appropriation doctrine
is the priority of a water right. As described above, the first appropriator on a water
source has the right to use all the water in the system necessary to fulfill his water right.
A junior appropriator cannot use water to satisfy his water right if it will injure the senior
appropriator. Senior appropriators, however, cannot change any component of the water
right if it will injure a junior appropriator. Therefore, if a senior wants to change his place
of use and this change will adversely affect a junior’s interest, the junior can stop the
senior from changing the water right. Any change of a water right (a change in time of
use, place of use, purpose of use, point of diversion, etc) cannot cause harm to another
water uses, regardless of priority.

2.10. WATERS SUBJECT TO APPROPRIATION

Water resources subject to appropriations differ from countries to countries and from
states to states. Some countries make lakes and streams subject to the right while others
not. However, taking usual instances, we can make some points regarding the subjects of
the right. Surface waters, for they are public waters, owned by the state and held in trust
for the public and are open to appropriation. Appropriation doctrine also applies in most
countries to lakes and streams. Diffused surface is not generally subject to appropriation.
Ground water resources generally are not subject to appropriation. Generally, waters
subject to appropriation can be classified into two:

1. Watercourses- which include Streams, Lakes, Ponds and Springs and

2. Water Made Available by Human Effort (in some instances)- Waters grouped here are
Foreign (imported) waters and Salvaged waters. Imported or foreign water is not part of
the stream and thus is not subject to appropriation. One an importer ceases using
imported waters, they are similar to abandoned personally. They can be taken and used

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by others. Salvaged waters are distinguished from foreign waters. The latter would not
naturally be in a stream but for human effort. Salvaged water is recovered from existing
uses or losses within the watershed. For instance, if seepage or evaporative looses are
prevented by human effort, fuller use could be made of it. But it is not new to the
stream in the sense that imported water is. Thus, salvaged water is subject to
appropriation.

In addition to these, if groundwater is hydologically connected with the stream, it is

subject to appropriation as part of the stream.

2.11. TRANSFER AND LOSS OF APPROPRIATIVE WATER RIGHTS

As we have discussed earlier, the doctrine of water rights states acquisition, enjoyment,
loss and transfer of water rights. In the above paragraphs we have seen methods of
acquisition of water rights and how can the appropriator enjoy those right in prior
appropriation doctrine.

Regarding transferability of water rights, generally speaking, appropriative water rights

are transferable property. There are, however, three major requirements which inhibit the
transfer of an appropriative water right:

1. Though an appropriative right does not depend on land ownership, some countries
do require that the water is appurtenant to the land on which it is used. So in time
of transfer, the rules prohibiting the severance of water right from the land on
which the water is appurtenant should be considered,
2. Showing that there will be no jury to other appropriators; and
3. Establishing the extent of the water right for transfer

The traditional means of losing appropriative water rights are non-use or abandonment.
Loss through abandonment is a consequence of the essential role that “use’ plays in the
definition of the right. The right does not come into existence without application of

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water to beneficial use and cannot continue to exist without the continuance of beneficial
use. Non-use in itself, however, does not always does not always constitute abandonment.
A finding of abandonment often requires a determination of an intent to relinquish the
water right. In other words, a appropriative right can be lost through non-use when intent
to abandon can be demonstrated, or when the water right has not been used for a
specified number of years.

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REVIEW QUESTIONS

1. Discuss the relationship between riparian rights and riparian land.

2. Natural flow and reasonable use are two separate and distinct concepts recognized
under the riparian doctrine relating to the right to use water. Discuss.

3. Discuss riparian rights with reasonable use.

4. State and discuss types of water resources subject to riparian rights.

5. Discuss the limits on riparian rights.

6. What does prior appropriation doctrine mean?

7. Discuss the difference between riparian rights and prior appropriation doctrine.

8. The concept of prior appropriation was developed by the California miners.

Discuss the development of prior appropriation doctrine briefly.

9. .What are the advantages of the prior appropriation system? What are the
disadvantages?

10. What are the advantages of raiparianism? What are the disadvantages?

11. Which System of water rights is use in Ethiopia for surface water? For
groundwater?

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CHAPTER THREE:INTERNATIONAL WATER RESOURCE LAW

INTRODUCTION
Water resources, whether atmospheric, surface or underground, are not respectful of
political boundaries. An appreciation of this fact will help us understand the tangentially
international character of water and the need for adequate rules to regulate water use,
conservation and management at the international level. International River law is one of
the most unsettled areas of international law; it is an area where there are few rules of
general applicable or validity. Whatever rules there are on the subject are contained
largely in bilateral or in some cases multilateral river treaties, i.e., the Barcelona
Convention of 1921 regarding navigation of international rivers which infact are regional
in nature. Rules regarding the use of international rivers for non-navigational purposes
are relatively undeveloped. The Helsinki Rules on the Uses of the Waters of International
Rivers, adopted by the International Law association in 1966, have yet to be accepted by
States. The same is true of the Institute of International law Resolution on the Utilization
of Non-Maritime International waters, adopted in 1961

Therefore, this chapter will discuss the principles and controversies in relation to
international water resources. Particular emphasis will be made on laws and practices of
Transboundary Rivers like Blue Nile (Abay).

3.1. GENERAL OVERVIEW ON INTERNATIONAL WATER RESOURCE

LAW65

Due to its fluidity and the mobility of its nature, water cannot always be viewed in a
purely national context. In fact, it may happen that the bed of a river or lake serving as
the boundary between two or more states will shift as a result of erosion or avulsion, with
consequences for the exact determination of the international boundary. Or it may be that

65
Dante A. Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp184

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the use by one state of water belonging to an international basin jeopardizes the use that
another state is making or may wish to make of the same water within its own territory.

For example, a dam built in the territory of one state for irrigation or power generation
purposes may affect the natural flow of the river downstream on the other side of the
border, or, conversely, may flood the territory of an upstream neighboring state. An
upstream state may render the waters of a river unsuitable for certain uses in the territory
of a downstream state by discharging pollutants. Many other examples could be cited.

Difficulties may arise not only on the main course of the river or around the banks of a
lake, but also on the whole system of tributaries in the catchments area or international
drainage basin concerned. The substantial unity of river/lake systems of a drainage basin
is due to the fact that they are nearly always a component element of one and the same
hydrologic cycle, and any action taken by a state which modifies the natural water regime
within its territory, either quantitatively or qualitatively, will have repercussions on the
waters of the same basin located in the territory of another state sharing the same water.

Likewise, the same negative repercussions may arise in the case of omission of any
action by one state concerning the waters of an international basin which, if taken, could
have alleviated or prevented an injury to the waters or other interests in the territory of
another state; the best examples are those relating to the duty to warn about the arrival of
floods or about other accidental events.

In the case of international ground waters, i.e., those waters extending across and below
the territory of two or more states, the problem is more complex. Unlike surface waters,
ground waters are not readily visible and it is difficult to determine without a specialized
survey their exact location and characteristics. Underground water tables lie at different
depths and may have an extension which does not respect the political demarcation lines
and, in addition, may reach well inside the territory of different states. The use by any
state of water belonging to one or another water table should be determined keeping in
mind the international character of the underground basin.

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At the beginning of its development, the law relating to international water resources, as
it shall be defined below, was concerned mainly with the question of boundary
demarcation between sovereign states; the regulation of water resources for domestic
purposes, irrigation, timber floating, fishing, and other traditional water uses were limited
to the national law of each state, or to bilateral agreements between bordering states.
Only navigation on the main courses of the international waterways was the object of
consideration at the international level, in view of the commercial interests involved.
Thus, it is with reference to navigation that the law of international rivers and lakes
developed. From the beginning of the twentieth century, new forms of water utilization
have evolved on 'international' rivers, particularly for hydropower generation and
irrigation; new international treaties have been concluded for the exploitation of water
resources common to two more states. More recently, other treaties have seen the light
for the prevention of the harmful effects of water, such as those caused by erosion or
floods or for protection from natural disasters. Even more recently, the protection of
water from pollution has become of major concern, and a number of treaties have been
concluded for this purpose. Finally, the most recent world-wide concern for the
protection of the environment has caused international action in the preparation of treaties
for the protection of water resources in all of its forms and of other elements of the
environment: air, space, oceans, land, forests and other natural resources directly linked
with water. As a consequence, it may be said that the evolution of international water
resources law has closely followed the economic, technical and social development of
nations.

3.2. DEFINITIONS AND HISTORICAL REVIEW

Simply stated, international water resources law, or international river law to the
exclusion of the law of the sea, is that branch of international public law governing the
relations among states, or between states and international organizations, in water
resources matters.

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Many definitions of international water resources, or international rivers or waterways,

have been adopted by state practice and proposed by learned writings in the past,
following the progress in the understanding of the nature and potentiality of inland waters
for many uses and the damage that such waters could cause.

It is important to point out that the expression 'international river' includes two aspects:
one geographic and the other legal.

According to classical theories, from a geographical point of view a river is 'international'

if in the navigable portion of its course it is of interest to two or more states. From a legal
standpoint, always according to international law, a river is 'international' when a riparian
state ceases to have on the same the totality of the powers or competences which
normally belong to a state on the navigable portion of a river located within its own
territory or under its jurisdiction.
.
Generally, a river which is geographically international is also legally international; but it
may happen that certain rivers are geographically national and at the same time are
subject to an international legal regime. Thus, a river geographically national could not
be international from a legal standpoint if it were not navigable.

Until recently, the theories of international water law have been unanimous in
recognizing that a river may be international in two ways: either because it separates two
or more states serving as a boundary, and in this case it is called contiguous international
river, or because it crosses successively the territory of two or more states, of which some
are called upstream and other downstream states, and in this case the international river is
called successive.

The evolution of the expressions international 'river,' 'watercourse,' 'waterway,' 'river

system' and 'drainage basin' shall be briefly indicated here below.

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In the late eighteenth century, watercourses common to several states were referred to as
common rivers or watercourses.66 During the nineteenth century, the same were
frequently described as international rivers or lakes. An expression enshrined in Article
108 of the Final Act of the Congress of Vienna of 1815. 67 Such expression refers to
navigable waterways of concern to two or more states, either successive or contiguous, or
to lakes crossed by a frontier or surrounded by several riparian states (' international' or
'frontier lakes'). The Act of Berlin of 18854 also referred to the rivers Congo and Niger as
international rivers.

The peace treaties following the First World War (1919), however, used the Expression
Rivers declared international. This meant that national waterways crossing the territories
of the defeated powers could be considered international waterways and consequently
subjected to freedom of navigation by the winning powers.

Another expression used in the Barcelona Convention of 1921 namely waterway of

internl1tional concern, reflected the need for extending the principle of freedom of
navigation to all flowing waters, whether international or national, provided, however,
that the states concerned agreed thereon. This showed the growing interest of the
international community in the freedom of communication.

Later on, the expression international rivers or lakes system acquired relevance in inter-
national practice, making it possible to extend the international rules to tributaries, canals
and secondary courses as well to main streams. The expression was broad enough to
include lakes and lake sources connected to main streams, though only concerning
surface water. Underground waters were not covered.68

By the end of the 1950's, mainly as a result of studies carried out by the International
Law Association (ILA), it was proposed to adopt the expression international drainage

66
Reichdepulations-Hauptschlaus of 25 February, 1903
67
Text in:Herstlet, E., Commercial Traties, a Collection of Treaties and Conventions between Great Britain
and Foreign Powers, Vol. I.
68
Caponeram D.A., The Law of International water Resource, :Legislative Study, (1980), Pp. 5

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basin. A precise definition was given by Article 2 of the Helsinki Rules adopted by the
ILA in 1966, whereby. 'An international drainage basin is a geographical area extending
over two or more States determined by the watershed limits of the system of waters,
including surface and underground waters, flowing into a common terminus.’69 Such
concept, which is wider than those adopted in the past, connotes the entire system of
main streams, tributaries and lakes, including ground waters.

The multiple and intensive uses to which water resources can be put, together with the
rapid development of hydraulic engineering techniques and the latest economic theories
of integrated river basin development, have necessitated the revision of the traditional
criterion of 'navigability' of a river to designate it as international.

It has been realized that what is of international concern is not only the main course of a
river, but also all the waters belonging to the same river basin or .system, and that any
human interference with the waters located in one part of a basin or system may affect
waters located in another part of it, directly or indirectly.

If a state ignores this situation and behaves as if it had full sovereign jurisdiction over the
waters located within its territory, disputes with neighboring states may ensue. The
potential for disputes increases as the importance of water for the satisfaction of
economic and social needs grows.70

The 'international drainage basin' concept is based on the consideration that the unity of
the physical fact corresponds to a community of interests. This entails the need for
avoiding a unilateral regulation by the individual states participating in the use of water
resources belonging to the same international drainage basin, and the resulting
fragmentary legal regime of the said water resources. Thus, the concept seems to offer a
rational basis for planning the development of water resources, as within the basin all
natural resources (land, water, fauna, flora) can be quantified.

69
Text in: The International Law association, Report of the fifty-second Conference , Helsinki, (1966).
70
Pufendorf, S., Book 3, Pp. 233

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The notion of 'international drainage basin 'has given rise to perplexities and doubts by
some states. For this reason the International Law Commission of the United Nations
(ILC), charged with the study of the subject in order to prepare a codification thereof, has
maintained the expression 'international watercourses,' thereby designating rivers, lakes,
glaciers and underground waters, and has adopted in addition the new concepts of
'international watercourse system,' constituting, by virtue of their physical relationship a
unitary whole, and that of 'shared natural resource.

These two new expressions underline the substantial natural homogeneity of international
water resources and the necessary interdependence of the states participating in their use.
The reference to the 'system' allows to define the international character of the relations
between states, not only on the basis of a physical circumstance, i.e., on the fact that the
common river or lake is located in the territory of two or more states, but also on the
circumstance that the use by one state of international water resources might have
repercussions in the territory of another state or might limit the use the latter may wish to
make of the same resources. It is therefore to the interdependence in the use of shared
water resources that the attention of the lawyer is drawn.

3.3. SOURCES OF INTERNATIONAL WATER RESOURCE LAW

In order to find the legal position of a particular situation or issue which arises in connection with
the management of international water resources, it is necessary to know the sources from
which the legal position of such a situation or issue derives. As shall be seen, these
sources are various. They are indicated by Article 38 of the Statute of the International
Court of Justice, which is the world court where international disputes in general,
including water disputes, are handled. This article indicates the basis on which the Court
shall decide the cases submitted to it. In the course of its proceedings and according to
Article 38 of its Statute, the Court shall apply:
‘a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting States;

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b) International customs, as evidence of a general practice as accepted as law; .

c) the general principles of law recognized by civilized nations; .
d) ... judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.’
It is to be noted that, as a consequence of the time when the Statutes of the International Court
of Justice were drafted (just after the Second World War), Article 38:
(i) Speaks about principles of law recognized 'by civilized nations; 'the expression
'civilized nations' can no longer be considered valid;
(ii) does not consider the law-making activities of some subsequently created
international bodies such as the European Economic Community (EEC) or those of other
similar institutions possessing supranational powers, ·such as several other regional
organizations (the Senegal Basin Authority, the Kagera Basin Authority, the Great Lakes
Community of Central Africa, etc.);
(iii) does not consider the procedures constituting a quasi-legislative activity of
international organizations such as the Security Council of the United Nations, the United
Nations General Assembly, etc., and the 'final acts' of ad-hoc international
intergovernmental conferences, such as the Stockholm Conference of 1972 and the UN
Water Conference of Mar del Plata of 1977.

3.3.1. International Conventions

The expression' international convention' corresponds to the terms: treaty, agreement, protocol,
pact, charter, compromise, exchange of notes, final act, or other international instruments.
International law does not prescribe any specific form for conventions or agreements.
However, international agreements are generally written and constitute the most common
procedure for creating rules of conduct and binding obligations between sovereign states.
According to Article 2 of the Convention on the Law of Treaties, 14 the term 'treaty' means: 'an
international agreement concluded between States in written form and governed by inter-
national law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.'

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International agreements generally take one of the following forms:

(i) Agreements open to signature and ratification by the contracting parties;
(ii) Agreements not subject to ratification (' in simplified form '), which enter into force upon
signature or upon a supervening given set of circumstances;
(iii) Exchanges of notes, which enter into force on a specified date or upon the actual exchange
taking place, i.e., upon receipt and confirmation by one state of the note transmitted by
another state; and
(iv). Instruments of a less formal nature

Article 38 of the Statute of ICJ distinguishes between general and particular international
conventions.

General Conventions

General conventions are multilateral agreements codifying rules of conduct in a given sector.
They may be of universal or regional application. Among the general conventions of Universal
application concerning international water resources, the following may be mentioned, the
main content of which shall be indicated under each relevant subject:

i. General Treaty of Vienna, 9 June, 1815, which internationalized the rivers of Europe71
ii. Convention and Statute on the Regime of Navigable Waterways of International
concern, Barcelona, 20 April, 1921, the purpose of which is to facilitate navigation.
iii. Convention relating to the Development of Hydraulic Power affecting more than one
State, Geneva, 9 December, 1923, which aimed at facilitating the transmission of of
electric power among states
iv. Convention on Transit of Land-Locked States, New York, 8 July, 1965. The purpose of
which was to facilitate the transit of goods of land-locked states on the sea, thus
recognizing the right of such states to free access to the sea.

The following are examples of conventions of regional applications

71
Caponera, The Law of International Water Resources, (1981), Pp. 173

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i. African Convention on the Conservation of Nature and Natural Resources, Algiers, 15

September 1968.
ii. Act of Asuncion on the Use of International Rivers (Argentina, Bolivia, Brazil,
Paraguay, Uruguay), 3 June 1971.
iii. European Agreement on the Restriction of the Use of Certain Detergents in Washing
and Cleaning Products, Strasbourg, 16 September 1968.

Particular Conventions

Particular conventions are those tending to regulate a specific aspect of international water
resource management. They may be multilateral or bilateral. From the standpoint of form and
substance, multilateral agreements may be divided into the following groups:

i. agreements relating to the general development of an international water resource

(river, basin, aquafire)
ii. agreements relating to a specific utilization or development of an international water
resource or basin;
iii. agreements resulting from cooperation between States within the framework of institu-
tions established for the purpose of utilizing international water resources;
iv. agreements concerning technical and financial assistance between donors (States, inter-
national organizations or institutions) on the one side, and riparian States on the other,
for the development of international water resources. '
Most of the existing agreements, however, are bilateral. Given the variety of possible forms, it
is difficult to undertake an exhaustive classification. A United Nations study classifies them as
follows: 72
(i) Framework agreements, i.e., agreements usually concluded in respect of contiguous
watercourses, setting up a joint commission designed to facilitate the exchange of
information and consultation;

72
Text in: International Law Reports, (1957), 101

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(ii) Agreements for the integrated management of an international basin or water

resource;

(iii) Agreements for the study of potential uses and development of an international basin
or water resource;

(iv) Agreements for a specific use (navigation, timber floating, fishing, irrigation, hydro-
power production, etc.) of an international basin or water resource;

(v). Agreements for the control of harmful effects of water (floods, erosion, salinization)
of an international basin or water resource;

(vi). Agreements for the control of water quality (pollution, contamination) and
environmental protection of international waters;

(vii) Technical and/or financial assistance agreements between donor States or

international organizations and basin States;

(viii) Agreements calling for the harmonization of national laws governing water
resources with a view to avoiding discrimination against users of different nationalities.
Normally, in such cases, municipal legislation, i.e., the national law, is introduced and
referred to as 'parallel' legislation, and the preparatory work is often done by a joint
institution appointed by the States concerned.

3.3.2. International Customary Water Law

International custom is mentioned by Article 38 of the Statute of the International Court

of Justice as the second source of international law. It is generally recognized that
international custom is constituted by:
(i) The constant and uniform conduct by states (inveterata consuetudo - usus),
together with

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(ii) Their conviction as to the obligatory nature of such conduct as being in

conformity with a juridical norm (opinio juris sive necessitatis).

The two element, just mentioned have undergone criticism by some authors who have
stated that opinio juris may conceivably not be one of necessity, and the time taken for
custom to establish itself may not necessarily be a matter of centuries; in fact, a number
of international rules have come into being in a very short period of time.

International custom may be general, i.e., binding upon all states, or particular, binding
only upon a given group of states.

The identification of a rule of customary law of international validity governing inter-

national water resources is difficult International state practice (conventions concluded
between states, declarations of principle of international organizations, international
judicial decisions and the most recent learned opinion) must be analyzed in order to
assess the existence of a conformity in the states' conduct Such conformity may be taken
as a proof of the existence of a general rule of conduct .

In this connection, there is a clear affirmation of the general customary rule whereby the
rights of states are limited in relation to any shared resource. The Permanent Court of
International Justice, in its decision concerning the territorial competence of the River
Odder Commission, recognized this rule by noting that 'when consideration is given to
the manner in which States have regarded the concrete situations arising out of the fact
that a single waterway traverses or separates the territory of more than one State, and the
possibility of fulfilling the requirements of justice and the considerations of utility which
this fact places in relief, it is at once seen that a solution of the problem has been sought
not in the idea of a right of passage in favor of upstream States, but in that of the
community of interests of the riparian States. This community of interests in a navigable
river becomes the basis of a common legal right, the essential features of which are the
perfect equality of all riparian States in the uses of the whole course of the river and the

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exclusion of any preferential privilege of any of the riparian States in relation to the
others. '

International custom has provided some of the most important rules for the use of shared
water resources. The following may be mentioned:
(i) Duty to cooperate and to negotiate with a genuine intention of reaching an
agreement;
(ii) Prohibition of management practices likely to cause substantial and lasting
injury to other states;
(iii) Duty of prior consultation;
(iv) Equitable utilization of shared water resources.73

3.3.3. General Principles of International Water Resources Law

The ‘general principles of law' represent the third source of international law, to be
resorted to in the absence of international conventions or customary rules. An analysis of
general principles helps in the task of ascertaining whether or not international rules exist.
Such a reconstruction has been made through judicial decisions and in learned writings.
Which, in their attempt to affirm limitations to the sovereignty of states sharing common
water resources, have been mainly based on certain principles outlined below:

(i) The principle that there shall be no abuse of rights (sic utere tuo ut alienum non
laedas).

Whenever a state makes use of its own territory in an arbitrary fashion thereby causing
unjustified loss or damage in another state, such action should be deemed to be contrary
to international law. Presently, almost all national legislations recognize this principle.
Differences arise, however, as to the degree and scope of the rights acknowledged, and

73
Text in: International Law Association, Report of the Forty-Seventh Conference, Dubrovnik, London,
(1957), pp.241

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the degree to which abuses are prohibited. The laws of most countries prohibit intentional
or culpable harm to others in the exercise of their rights.

(ii) The principle that co-basin states shall act in a way consonant with good neighborly
relations.

Under the good-neighborliness principle, no state may engage on its own territory in
activities likely to have negative repercussions on the territory of another state. Territorial
propinquity obviously facilitates greater collaboration.

(iii) The principle that the national water laws of the basin states should be applied
harmoniously in mutual disputes.74 Almost all national water laws provide for a
balancing of rights between competing users. Such principle informs, though without any
marked determining force, the criteria of equitable apportionment and use of waters
among the states concerned.

3.3.4. Resolutions of Intergovernmental Organizations

Article 38 of the Statute of the International Court of Justice, having been adopted prior to
the emergence of the phenomenon, takes no account of the resolutions of
intergovernmental organizations containing' declarations of principles' of conduct in the
relations between states.

Since then, many resolutions have been adopted by the United Nations General Assembly
in the field of natural resources, of which water resources are a component.

Similarly, declarations and recommendations of major significance have been adopted at

the conclusion of intergovernmental conferences convened by the United Nations
General Assembly. Among these, the following may be cited:

74
Berber, F.J.A., Report on Food Control of the International Law Association, New York, 1972.

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(i) Declarations of the United Nations Conference on the Human Environment,

Stockholm, I 6 June, 1972.75
(ii) Declarations and Resolutions of the United Nations Water Conference, Mar del Plata,
March, 1977 .76
(iii) Declarations of the United Nations Conference on Desertification, Nairobi, 9
September,1977.77

Finally, a great number of resolutions, recommendations and declarations have been

adopted by the United Nations Economic and Social Council, the Economic Commission
for Europe and, outside the United Nations system, by the Organization for Economic
Cooperation and Development (GECD), by the Organization of the American States
(GAS), by the Council of Europe, and by the Asian-African Legal Consultative
Committee.

The legal value to be given to these resolutions, recommendations, etc., especially where
'declarations of principles' are concerned, given the universal vocation of the United
Nations, has been the object of lengthy doctrinary discussions. Neither actual state
practice nor the preparatory works leading to them warrant an affirmative reply as to their
legal status as full-fledged legislative or quasi-legislative sources of international law.
However, these resolutions, recommendations and declarations have considerably
influenced the processes of formation of general rules of international law. Likewise,
'they have had the function of crystallizing opinions and state practice whence
international customary rules take their origin and develop.

3.3.5. Judicial Decisions

Water law principles regulating the relations among co-basin states have also been
developed through judicial decisions by courts and arbitral tribunals. Judicial decisions
may be classified into:

75
International Law Association, Helsinki Rules, Article 9
76
European Conference on Water Pollution, UN Doc. E/ECE/311,4
77
See the Trial-Smelter Dispute in the Canadian Yearbook of International Law, 1973, PP.213

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i. judgments and advisory opinions of the international courts;

ii. awards rendered by arbitral tribunals; and
iii. Decisions of national tribunals.

i. Decisions of International Courts

The expression 'judicial decisions' contained in Article 38 of the Statute of the

International Court of Justice covers, inter alia, the decisions of the International Court of
Justice and those of its predecessor, the Permanent Court of International Justice.

However, Article 59 of the Statute of the International Court of Justice provides that 'the
decision of the Court has no binding force except between the parties and in respect of
that particular case.' Thus, the decisions of international tribunals have no force of
precedent.

In spite of this, the Court's decisions not only expressly recognize the evolution of inter-
national law when determining the law to apply in a specific case, but, through the
interpretation of the international law in force and its application, they clarify that law,
thereby paving the way for its progressive development.

Moreover, the jurisprudence of the Court plays an important role in the codification of
international law, as the International Law Commission submits its draft articles to the
General Assembly of the United Nations together with a commentary which includes a
full summary of the precedents and other relevant material, including the judicial
decisions of the Court.

Among the cases submitted to international courts in the field of water resources, the
following deserve to be mentioned: 78

78
Dante A. Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp192

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(i) The case relating to the territorial jurisdiction of the International Commission of the
River Odder, Judgment of 10 September, 1929. It was decided that the powers of the
Commission extended to the sections of the tributaries of the Odder, Warthe and
Netze situated in Polish territory.

(ii) The Oscar Chinn Case, Judgement of 12 December, 1934.79 This case, between the
United Kingdom and Belgium, dealt with an alleged violation by Belgium of the
principle of freedom of navigation.

(iii). The diversion of water from the Meuse, Judgment of28 June, 1937. While in the
case concerning the diversion of water from the Meuse the decision was based on
particular treaties concluded between the parties, in the case relating to the
territorial jurisdiction of the International Commission of the River Oder, the Court
invoked the principle of community of interests of riparian states, which could be
considered as one of the customary rules of international law.80 In the Oscar Chinn
Case, the decision was based on the Convention of Saint Germaine, which confined
the principles of freedom of navigation and freedom of trade.

Regarding advisory opinions, those of the International Court of Justice are only open to
international organizations, have consultative nature and are not binding on the
requesting bodies. An example of advisory opinion requested by the Council of the
League of Nations to the Permanent Court of International Justice in the field of water
resources is the one concerning the jurisdiction of the European Commission of the
Danube between Galatz and Braila,45 delivered on 8 December, 1927.

ii. Arbitral Awards

The contribution to international water resources law made by arbitral awards has been
significant. Among the cases submitted to arbitration, the following may be cited:

79
Declaration of Montevido concerning the industrial and agricultural use of international rivers, Art. 2
80
Principle 21 of the Stockholm Declaration, 16 June, 1972

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• Helmand River Delta Case, Arbitral Awards of 19 August, 1872, and 10 April,
1905.
• San Juan River Case, Arbitral Award of22 March, 1888.
• Kushk River Case, Arbitral Award of 22 August - 3 September, 1893.
• Faber Case, Award of 1903.
• Tacna-Arica Case, Award of 4 March, 1925.
• TraiI-SmelterCase, Awards of 16 April, 1938, and 11 March, 1941.
• Zarurnilla River Case, Arbitral Award of 14 July, 1945.
• Lake Lanoux Case. Award of 16 November, 1957.
• Gut Dam Case. 15 January, 1968, 12 February, 1968, and 27 September, 1968.

The awards rendered in these cases reveal a tendency towards the construction of the
rights of riparian states in terms of limited territorial sovereignty in respect of shared
water resources. The principle of the innocent use of rivers which emerged during the
Faber Case can be regarded as yet another principle of international water resources law
that has gained currency.

iii. Decisions of National Tribunals

National courts have also contributed to the evolution of international law. Such courts,
particularly those of federal states in their decisions concerning water disputes, have
invoked a variety of highly relevant concepts.81 In the United States, in one of its first
water disputes (Kansas v. Colorado), the Supreme Court upheld the principle of equality
of rights between the two states.82 In other cases, the Supreme Court has applied the
theory of equitable apportionment.83 Such theory was also upheld in India in 1941, in the
case of Sind against Punjab concerning the Indus waters.84

81
Caponera, International River Law, Pp. 179
82
Dante A. Caponera, Principles of Water Law and Administration, National and International, (1992), Pp
194
83
Nebraska V. Wyoming (1945), New Jersey V. New York (1931)
84
Report of the Indus Commission, 1942, Pp.10

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As regards Europe, in the judgment of the German Staatsgerichtsh of on the Donauver-

sinkung case the principle of equitable apportionment was resorted to, while in another
case (Wurttemberg v. Baden) the German Supreme Court based its decision on the
principle of equitable utilization. In Switzerland, the equality of rights between cantons
for the use of public watercourses was affirmed, and in Italy the Court of Cassation
recognized the principle of community of ownership (Electricite de France v. Compagnia
Imprese Elettriche di Liguria).

The question arises as to whether municipal law, i.e., the law applied by national
tribunals, can be transformed into customary international law concerning water
resources. The only method by which municipal law can be transformed into
international law is through its recognition as 'general principles of law.' Therefore, in
order to establish this, one must prove its consistent application in international practice.

In some countries such as Germany, constitutions recognize international law as part of

the law of the country, but even in such cases, the decisions of national courts do not
constitute a source of international law. If in municipal disputes the court expresses the
principle of the equitable apportionment of water, it might imply that the solution was
based on law and equity (ex aequo et bono). One may only state that in almost all
national water law systems will be found the principle that one state by using water must
take into account the needs of neighboring states. Such a principle, however, is identical
to the principle of customary law.

3.3.6. The work of the Institute of International Law

The Institute of International Law has, since the end of the last century, given attention to
international river law. Among its resolutions, one may mention the following:
- International Regulation on River Navigation, Resolution of Heidelberg, 9
September, 1887:
- International Regulation regarding the Use of International Watercourses for
Purposes other than Navigation, Declaration of Madrid, 20 April, 1911;

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- Regulation governing Navigation on International Rivers, Resolution of Paris, 19

October, 1934;
- Resolution on the Use of International Non-Maritime Waters, Salzburg, 11
September, 1961;
- Resolution on the Pollution of Rivers and Lakes and International Law, Athens,
12 September, 1979.

3.3.7. The work of the International Law Association

The largest professional organization devoted to international law, the International Law
Association (ILA), has made a notable contribution to the development of international
water resources law through:
- Statement of Principles, Resolution of Dubrovnik, 1956;
- Resolution on the Use of the Waters of International Rivers, New York, 1958;
- Recommendations on the Procedures concerning Non-Navigational Uses,
Hamburg, 1960;
- The Helsinki Rules on the Uses of the Waters of International Rivers, Helsinki,
1966;
- Articles on Rood Control, New York, 1972;
- Articles on Marine Pollution of Continental Origin, New York, 1972;
- Maintenance and Improvement of Naturally Navigable Waterways separating or
- Traversing several States, New Delhi, 1974;
- Resolution on the Protection of Water Resources and Water Installations in Times
of
- Armed Conflict, Madrid, 1976;
- Resolution on International Water Resources Administration, Madrid, 1976;
- Regulation of the Flow of Water of International Watercourses, Belgrade, 1980;
- Articles on the Relationship between Water, Other Natural Resources and the
- Environment, Belgrade, 1980;
- Rules on International Ground waters, Seoul, 1986;
- Complementary Rules Applicable to International Water Resources, Seoul, 1986.

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Special attention has to be paid to the Helsinki Rules, as they embody principles that have
been formally accepted by many countries cooperating in the integrated development of
international basins in Asia, Africa and Latin America.

It is in the Helsinki Rules that the concept of equitable utilization has received its
definitive formulation. Article 4 stipulates that 'each basin State is entitled, within its
territory, to a reasonable and equitable share in the beneficial uses of the waters of an
international drainage basin. ' In quantifying this reasonable and equitable share, due
weight must be given to all relevant factors in each specific case. These factors are
indicated in Article 5; the choice, however, is not limited to them. No use, or group of
uses, must be granted priority according to subjective criteria.

In accordance with the principle of equitable utilization, states 'must prevent any new
form of water pollution or any increase in the degree of existing water pollution in an
international drainage basin which would cause substantial injury in the territory of a co-
basin State.' Article 9 of the Helsinki Rules defines the term 'water pollution' as 'any
detrimental change resulting from human conduct in the natural composition, content, or
quality of the waters of an international drainage basin.' Basin states should take all
necessary steps to eliminate existing pollution, so as not to cause substantial damage in
the territory of a co-basin state.

Finally, the Helsinki Rules recommend that information be exchanged between states and
procedures be established for the prevention and settlement of disputes.

3.3.8. The work of the Asian-African Legal Consultative Committee

The Asian-African Legal Consultative Committee has undertaken the study of the legal
aspects of water resources. This body, which includes specialists in water law from Asian
and African countries, has produced a set of very relevant 'propositions.' These

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propositions, formulated in New Delhi on 18 January, 1973,85 contain rules which were
inspired by the Helsinki Rules of the International Law Association.

After defining the term' drainage basin,' as a result of which a basin state is entitled,
within its territory, to a reasonable and equitable share in the beneficial uses of the waters
of an international drainage basin, the propositions affirm that such reasonable and
equitable share is to be determined on the basis of all the relevant factors in each
particular case.

3.4. MAJOR ISSUES IN INTERNATIONAL WATER RESOURCES LAW

3.4.1. Boundary Demarcation

An important issue concerning international water resources law is the one which relates
to the demarcation of boundaries on rivers which separate or cross the territories of two
or more sovereign states. This question is one of the first to have arisen in the
development of international water law and has given birth to a number of disputes
between states, sometimes leading to armed conflict.86

Some of these disputes arise even in the absence of formal international agreements and
for a number of reasons: modification of an original border, dubious validity of treaties
establishing a boundary, colonial character of some of the agreements, caducity of some
of the provisions contained in the treaties or for other reasons.

International court decisions and arbitral awards have also been rendered on questions of
boundary demarcation. The learned jurists who have dealt with these questions are not
always in agreement with the solutions to the issues at stake. State practice and the
various solutions which have evolved in connection with boundary demarcation are
briefly analyzed below.

85
Text in: Asian-African Legal consultative Committee, Report on the 14th Cession, New Delhi, (1973), Pp
7
86
The conflict which has arisen between Iran and Iraq as regards the border on the estuary of the shatt-al-
Arab river can be mentioned.

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1. Boundary on a Successive River

The fixation of a boundary on a successive river or watercourse, i.e., a river crossing the
territory of two or more states, does not pose great problems as regards the actual
determination of the boundary itself. The frontier runs along an imaginary straight line
which cuts the river or watercourse and joins at the two banks the extreme limits of the
land frontier between the two states. The river in this case is cut in as many sections as
there are states crossed by the river. In this case, legal difficulties may come about in
connection with the right of passage for navigation purposes on the river or on the right to
cross the river for other uses such as timber floating, etc. Other questions may arise
concerning the level of the water flow at the river boundary and the quantity or quality of
the water crossing river boundary. However, these questions do not belong to the issue of
boundary demarcation on rivers, rather, to those arising from the uses of the river for
navigation or for other purposes. Where the interests of the upper and lower riparian
states are not similar, and between the interests of the riparian and non-riparian states in
the case of navigation.

2. Boundary on a Contiguous River

The fixation of a boundary on a contiguous river, i.e., on a river separating the territories
of two or more sovereign states, has always had controversial aspects for a number of
reasons. This may of a physical-geographic nature, as the size, the nature and the
behavior of the river water vary considerably, and of a legal nature, in that the issues can
only be settled on the basis of an agreement between the states concerned, as no clear-cut
rule of international law exists in this respect.

Problems may arise even when an international boundary agreement exists; in this case,
the dispute may relate to a number of questions such as: the inflexibility of a treaty as
compared to a new physical solution; the interpretation, the application or the particular

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relevance of a treaty or indeed to its own total or partial validity; or to a number of other
legal questions.

As to the ways in which the boundaries on a contiguous River have been fixed
throughout history, these are indicated here below.

Boundary at the Banks (River Res Nullius)

A medieval theory set the boundaries at the banks of the river, while the river itself was
considered res nullius, i.e., belonging to nobody. This was stated in the Latin Maxim:
Rheuns est una ripa Galliae et altera Germaniae limes, one bank of the Rhine belonged
to Gaul and the other Germany. However, this practice only prevailed during Middle
Ages, as the Rhine then constituted the border between Roman and Germany worlds.

Boundary at the Banks (river res comunis)

There have been cases in which the boundary has been fixed at the banks of river, while
the river itself was considered res comunis, i.e., the common and undivided property of
the two riparian states. This was the case, inter alia, of a treaty between Prussia and
Netherlands of 7 October 1816, dealing with the Rhine, the Moselle and others. This
regime also applied to that portion on the Moselle river separating Luxemburg and
Germany.

Boundary at one of the Banks

This is the case when the boundary of one state extends up to the bank of the opposite
riparian state, and its territorial jurisdiction includes the whole river. There are many
treaties which have fixed this type of river boundary, among which one of the first was
the Treaty of Osnabruck of 24 October, 1648, concerning the Oder River. At present the
same situation applies to various international rivers on the basis of treaties signed,

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generally, between strong colonial power and a less strong independent state. This was
the case, for instance, of the boundary fixed on the Shatt-al-arab, which gave to Iraq
sovereignty over the whole river up to the bank of Iran, thus allowing Iraq to control and
collect tolls from the traffic entering the Shatt-al-Arab (modified by the Algiers
Agreement of 6 march, 1975).

3. Natural Modifications of the Boundary on a Contiguous

It is possible that a natural modification of a contiguous river may cause a disruption in

the existing boundary.

Ancient Roman law distinguished between sudden modifications due to violent causes
and gradual modifications due to process of sedimentation; in the first case, the boundary
remained fixed on the old line of demarcation, while in the second case it followed the
low shifting of the watercourse.

The legal effects of the shifting of the bed of a contiguous river as a consequence of
natural factors can only be determined on the basis of the will of the concerned states, as
expressed in agreement. If changes occur after a boundary has been conventionally fixed,
said states have to resort to a second convention if they want to amend the provisions
concerning the boundary.

Any modification or interpretation of an existing boundary treaty should be the object of

an agreement between the states concerned. Thus, Article 30 of the Treaty of Peace of
Versailles following the Second World War states:
'It shall be the duty of the boundary commission established by the present Treaty
to indicate if the boundary line shall follow, in the case of shifting, the course of
the channel now so defined, or if it shall be determined in a permanent manner
according to the position of the watercourse or the canal at the moment of the
entry into force of the present Treaty.

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4. Boundary on a Bridge over a Contiguous River

The legal questions raised by the ownership, construction, operation and maintenance of
bridges crossing contiguous rivers are many. Here we are concerned only with the
determination of the boundary on the bridge in relation to the existing boundary on the
river, median line or thalweg.

Generally, it is the median line which determines the border on the bridge.5 However,
difficulties arise when the boundary on the river is determined by the thalweg. In this
connection, the Treaty of Versailles of28 June, 1919, at Article 66 declared that the
sovereignty over the bridges crossing the Rhine belonged to France up to the German
bank, although the border on the river was fixed on the thalweg. This clause was
modified in 1930 by an agreement which determined the border at the middle of the
bridge. Other agreements have been concluded during recent years concerning bridges
which cross contiguous rivers.

No rule of international water law exists concerning the boundary to be fixed on

international bridges; the riparian or basin states should determine between themselves
the legal regime of the bridge by means of an international agreement.

3.4.2. Navigation

Ancient civilizations did not consider the possibility of navigating on rivers, which were
considered as sacred; express prohibitions to navigate on rivers were contained in the
laws of Persia and Egypt. According to Roman law, rivers were res comunis, i.e.,
common to everyone. The state had only the right to control and to collect taxes for the
maintenance of watercourses; navigation was free.

During the Middle Ages navigation was made subject to all sorts of harassments and
fiscal measures which hindered development, even to the point of certain waterways

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being closed by treaty, as in the case of the Scheldt by the Treaty of Munster of 30
January, 1648.

After the feudal period, in the sixteenth century, Grotius, who is known as the father of
international law, introduced the principle of freedom of innocent passage, i.e., the
principle according to which rivers should be open for transit for legitimate purposes;
however, a person intending to exercise the 'right of innocent passage had to apply for
permission. A permission could only be denied for well stated reasons; otherwise a
violent reaction could be Justified.

This conception was restricted by Ziegler, a commentator of Grotius, who asserted that
unless a servitude allowed for it expressly, an agreement was necessary to establish a
right of passage.87 According to Pufendorf, a famous Swedish jurist and follower of
Grotius, a right of transmit must be granted when requested for honest and necessary
reasons, in conformity with the law of natures another author, Wanel, asserted that the
right of passage was an imperfect right, since its request left to the grantor the freedom of
deciding whether or not the right had to be accorded. 88

Internationalization of Navigation

It was with the peace Treaty of Westphalia (Munster) of 1648 after the war between
France and Germany that navigation became a matter of international concern. Article 9
of the Treaty provided that rivers be given their ancient freedom and security and be so
maintained forever, as they had been before the war, although before the Treaty there had
been neither freedom nor security on international rivers. In addition, the declared
principle of freedom was contradicted by the closure of the river Scheidt by the United
Provinces (the Netherlands) by virtue of the above-mentioned Treaty of Munster.

87
Dante A. Caponera, Principles of Water Law and Administration, National and International, (1992),
Pp205
88
Ibid

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A large number of bilateral treaties according freedom of navigation to the contracting

parties were concluded between 1648 and 1800.

The inhibitory system prevailing throughout the Middle Ages was strongly shaken by the
French Revolution. A Decree of the interim Executive Council of the French Republic of
16 November, 1792. declared:

1. That the difficulties and obstacles to which navigation and commerce, both on the
Scheidt and on the Meuse, have been subject are contrary to the fundamental principles
of natural law that the French people have undertaken to respect.

2. That the course of rivers is common, inalienable property of all riparian land ... ' Based
on these considerations, the Council instructed the chief general of the French army
during the Belgian expedition to take all measures and to employ all means available to
ensure freedom of navigation and transport on all courses of the Scheidt and the Meuse
rivers.89

During the following years, such principle was incorporated in various conventions,
among which we may quote the treaty of 16 May, 1795, between France and the Batavian
Republic concerning navigation on the Rhine, Scheidt and Moselle, and the
Campoformio Peace Treaty of 17 October, 1797, between France and the Austro-
Hungarian Empire. Here, also, freedom of navigation was restricted to riparian states
only.

In 1798 at the Congress of Rastadt concerning the peace between France and the German
Empire, the French plenipotentiaries proposed absolute freedom of navigation on the
Rhine for all flags, including those of non-riparian states, subject to the condition that
consent be granted thereto by France and the Empire. The proposal was not accepted, and
the Congress ended with the murder of the French plenipotentiaries. This shows the

89
Decree of the Provisional Council of the Convention, 16 November, 1972.

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animosity surrounding this issue, which continued to be debated during the successive
two centuries.

A convention relating to the right to navigate on the Rhine was concluded between
France and the German Empire at Paris on 15 August 1804. This convention, which at
least implicitly excluded non-riparian from the enjoyment of such right, was inspired by
the concept of community of interests to the benefit of riparian and created a Franco-
German administration for the collection of taxes.

Progress in the regulation of international rivers was made with the conclusion of the
Treaty of Paris of 30 May 1814, which established that navigation and commerce on the
Rhine be open (free) to all flags, with the possibility for riparian states to levy certain
tolls. In addition, the Treaty provided that the extension of this regime to other
international rivers be studied during the future Congress of Vienna.

3.4.3. Non-Navigational uses of Water

Since ancient times, civilization and development have been based on the availability and
use of water resources for domestic, agricultural and commercial purposes. Many ancient
civilizations developed along rivers: the TIgris and the Euphrates, the Nile, the Huang
Ho, the Indus, the Ganges and the Tiber. Even then, conflicts arose on the allocation and
use of waters flowing through two or more political units. People felt the need for a body
of rules governing water use. At the same time, two principles were recognized, i.e., that
of the sovereignty of the states on the territory where water resources of interest to other
states were located, and that of international cooperation and solidarity as a basis on
which to organize the joint use of water resources.

The historical development of international water law has followed closely that of
political, economic, technical and social needs. According to such needs, on which
depends the prevailing of one water use over another, the development process is more or
less marked.

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If, in the past, conflicts were primarily related to navigation and small-scale uses, today
they cover a much wider spectrum. Water diversions by one riparian state may have
negative effects on the uses that another state intends to make of the same water.

As far as the non-navigational uses of water are concerned, they include irrigation,
floating, domestic uses, fishing, hydroelectric power production and industrial uses.
We shall now investigate the latest theories concerning these uses for which the river
basin concept is particularly relevant.

1. Absolute Territorial Sovereignty

Nowadays, few accept the thesis according to which a state is the absolute master of its
own territory, empowered to use the resources it encounters therein without any
consideration for the effects it may cause beyond its frontiers. Such thesis was sustained
by the Attorney General of the United States, M. Harmon, in 1895, in a controversy
between the United States and Mexico concerning the diversion and use of water from
the Rio Grand Rejecting the Mexican claim to the effect that prior agreement between the
two countries was necessary on the grounds that the United States could not make use of
the river water in such a way as to markedly reduce the flow, Harmon stated,
'The fundamental principle of international law is the absolute sovereignty of
every Nation as against all others within its own territory, all exceptions,
therefore, to the power of a Nation within its own territory must be traced up to
the consent of the Nation itself. They can flow from no other legitimate source.'

On this premise, 'the rules, principles and precedents of international law impose no
liability or obligation upon the United States.90

90
Moore, Digest of International Law, The Law of International Water Resource, Legislative Study, (1980),
Pp.7

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This theory is known as 'absolute territorial sovereignty' and is favored by upstream

states. It is an extreme theory which ignores the rights of the downstream states. In the
1950's the USA renounced the principle as not conducive to cooperative arrangements,
and it was never applied. The Advocate General of East Punjab, India_ referred to tl,e
principle in the wake of the Indus dispute. However, the 1960 Indus Treaty does not
reflect this principle. In the case of the Ganges dispute, for quite some time India
subscribed to the notion that the Ganges, if not an Indian river, is 'essentially an Indian
river.' The theory fails to appreciate the dual character of a state, namely, that territorial
sovereignty is a source of obligations as well us of rights.

2. Absolute territorial integrity

The theory of 'absolute territorial integrity' is upheld by lower riparian states and
corresponds to the 'theory of natural flow,' whereby a state is entitled to expect that the
same volume of water, uninterrupted in quantity and unimpaired in quality, flow into its
territory. The concept of the natural flow theory likewise awards 'rights without duties' to
the lower riparian states. It includes a right of veto against any upstream water utilization
that is likely to disturb the natural flow. This theory was never accepted in international
law and practice, since it was conceived as unworkable. It was retained by Egypt,
Pakistan and Bangladesh in the 1950's, which are downstream states.

3. Limited Territorial Sovereignty and Integrity

The two aforementioned territories, territorial sovereignty and territorial integrity, are
unworkable and may lead to lengthy discussion among the co-riparian. Instead, limited
territorial sovereignty and integrity is based on the assertion that every co-riparian is free
to use the waters of shared rivers within its territory on condition that the rights and
interests of all the other co-riparian states are taken into consideration. In this ca>e,
sovereignty over shared waters is relative and qualified. The co-riparians have reciprocal
rights and duties in the use of the waters of common rivers. Physical unity creates a

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unique legal unity leading to the formulation of a 'community of interests, ' and the
waters of the shared rivers so become res comunis.

This theory is well accepted in international law, as it was recognized by the Permanent
Court of International Justice (PCIJ) in 1929, in its judgment on the territorial
competence of the River Oder Commission, when it affirmed that states have a common
legal right to the resources of a shared river, not only a right of passage, the essential
characteristic being the community of interests of all the parties in the use of the river and
the exclusion of preferential privilege of any riparian state in relation to others.

4. Shared Natural Resources Concept

This theory, which has emerged during the last twenty years. starts from the UN General
Assembly resolutions on the permanent sovereignty over natural resource by the states.
That sovereignty is limited by the similar rights of countries sharing the same basin. It
reinstates the community of interest approach and attributes a positive duty to render
active cooperation in the rational development and utilization of the shared water
resources.

4. Equitable Utilization, Apportionment, Participation

The latest theory concerning the use of international waters for purposes different from
navigation has been referred to as 'equitable utilization,' 'apportionment' or 'participation.'
It is derived from the work of the International Law Commission of the United Nations,
which in different instances has designated such cooperation in this way.
It is to be noted that the equitable and reasonable utilization theory derives from the
Helsinki Rules and states that the right of a co-basin state is to be regarded in the light of
a similar right of another co-basin state. It does not purport to identify clearly the
respective share of a basin state in the waters; this has to be ascertained on a case-by-case
basis.

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Equitable apportionment, on the contrary, is a notion favored by engineers, who like to

'apportion' waters. However, this apportionment approach is more difficult to achieve in
view of the various interests involved and the need to quantify the water of the basin in
order to reach agreement This is the case of Egypt.

The expression 'equitable participation' corresponds to that of 'equitable utilization.' This

is an obvious development of a legal principle appreciating the physical facts of water,
the sovereignty claims, the shared natural resources concept and the community
approach. It is a flexible rule which provides scope to establish justice and fairness on the
basis of circumstantial factors. The principle was initially developed by federal courts in
various countries.

The reciprocity of respective rights and duties of states sharing a common basin acquires
the force of a rule of conduct generally applicable to the relations between such states.
The rule includes the obligation to refrain from causing substantial damage to other states
concerned with the same international water resources. Emphasis is placed on the
'seriousness' of the damage, as it is only in such case that the violation of a rule of
international law may be envisaged. This duty entails the further obligation to take all
necessary preventive measures in order that the question of damage or appreciable harm
shall not arise in international relations where water resources are concerned.

6. Procedural Rules

The general rules governing the conduct of states summarized so far constitute
substantive law. In addition, procedural rules have to be taken into account A procedural
rule of general applicability, not limited to hypothetical situations where damage or harm
might arise, is the one requiring that stares shall inform and consult each other.

Such obligation was the object of consideration by the International Law Association in
1956. According to Article 6 of the Resolution of Dubrovnik of that year, 'A State which
proposes new works (construction. diversion, etc) or change of previously existing use of

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water which may affect the utilization of water by another State, must first consult with
the other State. In case agreement is not reached through such consultation, the States
concerned should seek the advice of a technical commission; and if this does not lead to
agreement, resort should be had to arbitration.’ 91Ten years later this position became less
rigid. The Helsinki Rulesof1966, in fact. recommend that each basin state 'furnish
relevant and reasonably available information to the other basin States' concerning the
waters of a drainage basin within its territory, the relevant water uses and the intended
projects. The fixation of a deadline for submitting views or raising objections is also
provided for.92 Similarly, in 1979 the Institute of International Law affirmed the existence
of a duty to cooperate, through exchange of information and data, consultations and
scientific cooperation, in international water resources pollution manners,93 The
International Law Commission has fixed the deadline for objection at six months.

The rule of reciprocal information and consultation, together with that governing the con-
duct of states with regard to the management of international water resources, has been
embodied in a number of international instruments, such as the Convention of 1923
relating to the Development of Hydraulic Power Affecting more than one State, the
Declaration of Montevideo of 1933, and also, more recently, in Article 3 of the Charter of
the Economic Rights and Duties of States, which reads, 'In the exploitation of natural
resources shared by two or more countries, each State must cooperate on the basis of a
system of information and prior consultations in order to achieve optimum use of such
resources without causing damages to the legitimate interests of others.'

It should, however, be noted that the obligation to consult does not imply the
corresponding powers of veto. It does not mean that one state is obliged to obtain the
consent of all interested states, and by that token to conclude an agreement with them
before it may proceed. Such an obligation would conflict with the sovereignty principle

91
Text in : International Law Association, Report of the Forty-Seventh Conference, Dubrovnik, (1956),
London, Pp.241
92
Article 29
93
Institute of International Law, Resolution on the pollution of rivers and lakes and international law,
(1972), Pp. 197

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and with the principle of equality of rights and community of interests. Both of these
being looked upon as an expression of the priorities of today's international community.

3.4.4. State Succession and the Legal Status of International Water Rivers 94

The problem of utilization of the waters of international rivers has several aspects.
Among them state succession and the legal status of international rivers are the most
important aspect of the problems. In essence, the question concerns the extent to which
the legal status of an international river which is one or more of the State party to the
treaty of another state.

State Succession in General

States are international persons. They are subjects of international law and as such have
rights and obligations under international law. There are various ways whereby a state
comes into existence: as a result of gaining independence from a colonial power,
secession from an already existing state, secession of a part of a state to another State,
dissolution of a state into two or more new States; or the uniting of two or more States
into one. In all this cases, the original international personality of the state disappears and
a new international personality of international rivers and lakes, London, 1981, person
appears on the scene. In other words, there occurs a succession of one international
person (the state) by another. Such an occurrence is by no means infrequent, although it
is less frequent than changes of government.

The concept of succession of states is one of the most controversial areas of international
law and for this reason very few general principles of international law have emerged.
Analogies drawn from municipal law concepts of succession are frequent in the writings
of jurists and are sometimes also to be found in state practice. A natural tendency also
manifests itself among writers and in State practice to use the word “succession” as a
convenient term to describe any assumption by a state of rights and obligations with
94
Raph Zacklin, Gerald, Grham, The legal regime of International Water Resources

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respect to territory which has come under its sovereignty, without consideration of
whether this is succession by operation of law or merely a voluntary arrangement of the
State concerned. This approach is to be viewed cautiously, for it neglects fundamental
differences and may lead to unjustifiable conclusions derived from municipal law.

The subject to State succession has been on the agenda of the International law
Commission (ILC) for over twenty years. The commission has divided the topic in to two
parts: State succession in respect of treaties, and Sate Succession in respect of matters
other than treaties. A draft convention on the first part of the topic was finalized and
submitted to a conference of plenipoten-treties in Vienna in 1977. Due to the intense
debate generated by a number of articles in the draft convention, a second session was
required in order to complete the work in August 1978.

The approach adopted by the ILC at the Vienna Conference was to consider “succession
of States” as denoting simply “a change in the responsibility for the international
relations of territory, thus leaving aside from the definition all questions of the rights and
obligations as a legal incident of that change”. Hence, a clear distinction must be made
between on the one hand the replacement of one State by another, and, on the other hand,
the transition of rights and obligations.

Succession in Respect of Treaties

Once a succession of states, i.e., a replacement of one State by another, has occurred, the
question is what impact such an occurrence has on the treaties concluded between the
Predecessor State and other States (or international organizations). In respect of treaties
generally, the question is whether the successor State inherits all of the treaties concluded
by the predecessor state, some of them, or none of them. There are essentially two
schools of thought in this regard. The first is that a successor State does not inherit by
operation of law any of the treaties concluded by its predecessor; in other words, it starts
with a clean state –hence this schools of thought is called “Clean State Principle of State
Succession”. The second schools of thought rejects this principle in part and argues that

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there are certain types of treaties which devolve upon the successor State under
international law. Although the absolute clean sate principle has its adherents, it is
generally rejected as being unrealistic. Among the newly independent States that have
emerged over the past three decades or so, only one or two have openly stated that they
inherit none of the treaties of their predecessors, in effect expounding the absolute clean-
state principle. The theory that a successor inherits all the treaties of its predecessor is
regarded as equally unrealistic. 95

In preparing the draft convention on succession of States in respect of treaties, the

International Law Commission adopted the clean-state principle as a basic principle of
the entire draft. Article 16 of the convention provides that:

A newly independent state is not bound to maintain in force, or to become a party

to, any treaty by reason only of the fact that at the date of the succession of States
the treaty was in force in respect of the territory to which the succession of State
relates.

In its commentary on the draft of this article, the Commission stated that the majority of
writers took one view, supported by state practice, that a newly independent state begins
its life with a clean state, except in regard to “local” or “real” obligations. The claen state
is generally recognized to be the traditional view of the matter. It has been applied to
earlier cases of newly independent states emerging either from former colonies (the
United States, the Latin American republics) or from a process of either secession or
disbursement (Belgium, Panama, Ireland, Finland). This view was also expressed in the
legal opinion given by the United Nations Secretariat in 1947 concerning Pakistan’s
position in relation to the Charter of the United Nations. Assuming that the situation was
one in which part of an existing state had broken off and become a new state, the
Secretariat advised the General Assembly and the Security Council that ‘the territory
which breaks off, Pakistan, will be anew state, it will not have the treaty rights and

95
Ibid Pp. 179

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obligations of the Old State, and will not of course, have membership in the UN.’ In
general the clean state principle is:

A convenient way of expressing the basic concept that a newly independent state
begins its international life free from any obligation to continue in force treaties
previously applicable with respect to its territory simply by reason of that fact.96

But, as indicated earlier, this rule is not accepted in its absolute sense and there is a
category of treaties which is unaffected by a succession of states, including what are
variously described as treaties of a “territorial”, “dispositive”, “real” or “localized”
character.

Dispositive or Localized Treaties

A number of international lawyers advance the theory that real, dispositive or localized
treaties are binding on the territory affected notwithstanding any succession of states. But
it has always been difficult to define such category of treaties. Most writers regard
dipositive treaties as not being of a political character. It is argued that they relate to a
particular territory and are real treaties. That is why they are transmissible in the case of
state successions and from an exception to a clean-state principle. Such arguments are by
no means new.

Treaties may be localized if they:

a. are in the nature of objective territorial regimes created in the interests of one
nation or the community of nations;
b. are applied locally in virtue of territorial application clauses
c. touch or concern a particular area of land97

96
Ibid 159
97
International Law Association, The Effect of Independence of Treaties, Pp. 352

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The fundamental notion of localized treaties is that a territory is impressed with a status
which is intended to be permanent (or relatively so) and which is independent of the
personality of the State exercising the faculties of sovereignty. The restrictions imposed
by the treaty are less of a controversial character than they are equities in favor of the
beneficiary State. A dispositive treaty is thus more a conveyance than an agreement, and
as such is an instrument for the delimitation of sovereign competence within the
impressed territory.

3.5. CASES OF AGREEMENTS INVOLVING MAJOR ISSUES IN

INTERNATIONAL WATER RESOURCES

With forgoing as background, we may now examine specific international agreements

and consider them from the point of the major issues in relation to international water
resources; like navigation, boundary demarcation and state succession.

3.5.1. THE CASE OF NILE RIVER

I. General Description of Nile River

The Holy Bible in the Old Testament calls it felege ghion. The Egyptian Pharaos used to
praise it as one of their goddess hapy. The ancient Greeks and Romans call it nilus. The
Ethiopians call it Abay. 98 The Nile which is shared by 10 river basin countries, is the
main vital water artery in the North-Eastern region of Africa. The countries are: Burundi,
The Democratic Republic of Congo (DRC), Egypt, Eritrea, Ethiopia, Kenya, Rwanda,
Sudan, Tanzania and Uganda of which the DRC and Eritrea lie to a lesser extent in the
basin. Egypt, the most downstream. The river has two main tributaries, the white Nile
originating in Burundi, and the Blue Nile rising in Ethiopia. These are joined by the
Atbara River North of Khartoum, Sudan.

98
Zewdie G/Silassie, Social Study on the international aspect of Nile Basin problems, (2005), Pp. 2

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Nile is longest river that encompasses ten riparian countries from river Cogra in Burundi
and Rwanda and the Lake Tana in Ethiopia to its delta in Egypt on the Mediterranean
Sea. The basin area covers around 3 million square KM or nearly 10% of the landmass of
the African continent. While the Nile is 5, 584 KM long flowing northwards from lake
Victory through Uganda and into the Sudan where, it meets Blue Nile in Khartoum. The
Blue Nile also covers a distance of 1,529 KM from its source in Lake Tana to Khartoum
contributing more than 86% of the water in the Basin. Ethiopia contributing more than
86% of the Nile waters from three major tributary rivers namely the Abbay, Tekeze, and
Baro which originate from the central highlands, in the North West and South West of
the country respectively.

In terms of population number, the basin area is one of the most populated areas where
the growing number of population in the riparian countries increases the demand for
water in areas like agriculture, drinking water, and hydraulic energy and for other vital
economic sectors. According to the current UN report, within the next 25 years the
population in the basin is expected to double.

Abbay (Nile) as a transboundary river involves the national interest of all riparian
nations. Because of this, several battles have been fought; numerous diplomatic and
political engagements have been made throughout history, in order to secure their interest
on Nile. Egypt, a country almost devoid of rainfall throughout the year, badly needs the
waters for survival. The Sudan is the other riparian country that needs the water of Nile
for irrigation, agriculture and power generation. These two countries especially Egypt
took the issue of Nile very seriously.

To date, the prevailing water policy regulating the distribution of water among the
countries of the Nile Basin is a bilateral 1959 agreement attributing the largest share of
the river’s flow to Egypt, the down stream, non-contributing country, with the rest
allocated to Sudan, leaving other countries in the Nile Water shade without specific
shares. The high rate of population growth in the region propels governments to
continuously seek food, and thus water security, to match increasing demand.

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Agricultural development in other basin countries could be enhanced with more adequate
distribution of water resources. Measures have been proposed to alleviate potential water
shortages, including improved utilization of water in Egypt, and construction of nacreous
dams and canals. There are, however, disagreements with particular countries rejecting or
accepting these plans depending on which country will benefit most. 99

II. Conflicts in the Nile Basin

The Nile basin experienced a long period of conflict spanning the ancient Egyptian
civilization, the colonial reign, and continuing to the modern day. Historically, the river
provided the Egyptian with almost all their fresh water, and has long been regarded as the
cultural symbol of Egypt dating back to the time of the Pharaohs. The Egyptian were
always concerned that the Nile’s waters may stop reaching them and, as a result, have
tried to bring the entire Nile valley under their rule, invading Sudan during the reign of
Queen Sheba, the Roman rule of Nero, and at numerous other instances.

Colonialism marked the beginning of the modern history of the Nile conflict in the 20th
century by realizing the significance of the Nile water for the prosperity of the colonies,
particularly Egypt. Upon reconquering Sudan in 1898, the British removed vegetation
that was obstructing navigation along the river, creating alternative drainage paths to
divert and improve the flow. Signing an agreement with Ethiopia in 1902 was necessary
to ensure the security of the water supply, since Ethiopia provides 80% of the Nile water
and the British had no control of the Ethiopian portion. Britain also had to negotiate with
France and Italy to prevent their intervention with its dominance over the Nile basin. In
1929, Britain sponsored the Nile water Agreements on the river. The bilateral agreement
divided the Nile’s Water between the two most downstream countries, without consulting
any of the other involved parties. Egypt was provided with the monopoly over the
resource and Sudan was allocated a mere 5% of the river’s flow.100

99
M.EI-Fadel, Y.El-Sayegh and D. Korbothly, The Nile River basin a Case Study in Surface Water Conflict
Resolution.
100
All African.com, Inventory of Conflict and Environment, (May 2008).

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Following the independence from colonialism, disputes between countries in the Nile
River basin became inter-stated and assumed internationally debatable dimensions. The
most comprehensive treaty that addresses sharing the Nile’s water remains the 1959
water Agreement on the Full Utilization of the Nile River Water, between Egypt and
Sudan. Many countries of the Basin including Ethiopia were not consulted over the final
terms of the 1959 agreement and their water rights have not been expressly mentioned.
As a result these countries have been invalidating the agreement and requesting the
recognition of its contents to take their own interests into account. These disadvantaged
countries, including Ethiopia, claim their right to equitable water distribution because the
Nile represents the only renewable water resource in the region, hence leading to an
ongoing debate regarding the most appropriate and efficient management strategy of its
waters.

Although Ethiopia possesses population nearly the size of Egypt’s, the later continues to
argue that the bilateral agreement is irrevocable since its population growth is likely to
double by 2025, and access to this volume of water is vital to its ability to support the
growing population. Furthermore, Ethiopia has been left out of the negotiations because
the two lower basin countries have traditionally claimed that the country can sustain itself
solely through rain- fed agriculture. However, successive drought-induced famines in the
last decades have proven otherwise. Despite its substantial natural resources and potential
for agricultural production, Ethiopia is one of the poorest countries of the world with
food insecurity as a major problem. It has so far been able to develop very few part of its
irrigation and hydropower potential through its share of the Nile system. One avenue for
moving toward poverty reduction and increased food security may be through developing
the country’s vast arable land, which requires more water. Egypt feels threatened by the
potential demand of Ethiopia for more water. In this context, even the construction of
small dams using only101 0.5 BCM of the river’s annual flow triggered Egypt to use its
diplomatic influence in the 1990s to block an African Development Bank loan to
Ethiopia.

101
Ibid

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At present, the only regulatory instrument among Nile riparians is a 1959 agreement
between Egypt and Sudan. This agreement, drawn up after the building of the Aswan
Dam, does not take into account either projected needs or the present political situation,
and necessary cooperation among states seems unlikely in the current climate.
Competition for Nile water is thus likely to increase, as is the potential for future conflict.

In addition to potential problems with neighbors over future water supplies, Egypt also
faces severe internal problems over water use and management. In Cairo, for example, an
open canal of effluent runs through residential areas to a large lake converted into an
open cesspit. It is drained by a further canal into the Mediterranean Sea, contaminating
both the Mediterranean and its beaches, and killing fish and wildlife.102

Recent efforts toward cooperation were portrayed in 1998 when all countries, except
Eritrea, joined in a dialogue to create a regional partnership to facilitate the common
pursuit of sustainable development management of the Nile’s waters. They jointly
adopted an inclusive transitional mechanism for cooperation until a permanent
cooperative framework is established. In May 1999, the overall process was officially
named as the Nile Basin Initiative.

III. International Agreements on the Nile Basin

There are several agreements on the Nile, the most important being the 1929 Agreement,
later replaced by the 1959 agreement. Though many agreements and treaties have been
made at different times, all of them lack all inclusiveness and failed to provide mutual
benefits. Besides, the parties to the agreement were not the real riparian themselves. For
instance, the colonial masters like Great Britain, Italy, Belgium and France, representing

102
Edmund O'Sullivan, Environment Debate Gathers Momentum, Middle East Economic Digest, May 29,
(1992), Pp. 19.

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their colonies have signed in postcolonial era. Even those agreements that were signed in
postcolonial era lack all inclusiveness and impose onerous obligation on the other state.

1. The 1902 Agreement

This agreement was signed between Britain and Ethiopia in Addis Ababa on May 15,
1902. The agreement was made to delimit the boundary between Ethiopia and the then
Anglo Egyptian. Article III of the agreement is very much controversial as there is a
discrepancy between the Amharic and English version. The English version states that:

His majesty Emperor Minilik the II King of Kings of Ethiopia, engages himself
towards the government of his Britannic Majesty not to construct or allow to be
constructed any work across the Blue Nile, Lake Tana or the Sobat which would
arrest the Nile Water except in agreement with his majesty’s Government and
Government of Sudan.

The major controversy lays in the word “arrest”, in the Amharic Version; this word is put
in such a way that could give meaning as “not to stop fully the flow of the waters of
Nile”. However, in the English version the word arrest is put to give the meaning of “not
to use” the water of the Nile without the prior agreement with the British government.
Ethiopia, a major source of Nile water has a natural right to use its natural resources
found within its territorial limit, but this agreement does not say anything about the
reciprocal right Ethiopia has rather the English version imposes an obligation that
prohibit Ethiopia from using the Nile without the consent of the government of Great
Britain. As it imposes an onerous obligation on Ethiopia, forgoing all rights reserved to
Britain makes the agreement to be null and void according to international law. 103

Furthermore, there are several grounds on the basis of which one could argue that the
agreement could either be invalidated or should be re-negotiated. Firstly, the International

103
Seife, Ayalew, The Nile Water Crises: a Demand for Justice (the NBI: a Way Towards a Basin Wide
Legal Arrangement),(unpublished), (1999), Mekelle, Pp. 11

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Law Commission expects riparian states to update previous agreements in light of the
principles enunciated in the draft submitted to the Generally Assembly.104

Ethiopia can also invoke the principle of clausula rebus sic stantibus: a fundamental
change of circumstances. It is almost a century now since the treaty was concluded.
Having regard to the population growth, technological development, need of water for
drinking and sanitation, the situation has fundamentally changed since the treaty was
concluded. It is possible to say that had the parties then foreseen the present need for
water of booth upper and lower riparian states, they wouldn’t have entered into the type
of treaty. There has been a fundamental change of circumstances. It has been provided in
the 1969 Convention on the Law of Treaties that a fundamental change of circumstances
can invalidate an existing treaty.

Ethiopia may also invoke other grounds. By 1902, Ethiopia was a very weak and
backward state compared with the great European states that were interested in this part
of Africa. In the 1906 tripartite treaty, Britain, France and Italy settled questions directly
involving Ethiopia by themselves without consulting it. That was the period where the
colonial powers were in a position to impose their will on Emperor Menelik. It is,
therefore, possible to argue that the treaty was an imposed one. Imposed treaties being
contrary to the very principle of sovereignty of states needs re-negotiation in light of the
principle of sovereignty and equality of states which now prevails and underlies the
relationships of states. Germany, France and England, for example, had imposed their
treaty over China at around the same period. China invoked this principle and made the
other sides agree for the renegotiation of those treaties. 105

Fourthly, as stated above, the treaty imposes on Ethiopia only duties and confers on Great
Britain all the rights derived from the treaty. So is a one sided treaty and such a treaty is
called a leonine treaty-one side takes the lion’s share of the benefits to be derived from
the treaty. Such a treaty also needs re-negotiation. When the Vienna Convention on Law

104
Getachew Abera, Politics of Nile, chora.virtualave.net/egyptandnile.htm, Accessed on February 2009
105
Ibid

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of Treaties was negotiated, there was an understanding that such treaties need re-
negotiation. 106

2. The 1919 Agreement on the Lake Tana107

The increasing demand for the production of cotton in the world market in the early
1900s put pressure on cotton plantations in Sudan and Egypt. Especially after World War
I, it became clear that the growing interest of British over the Nile Basin particularly
Egypt and Sudan. It is because of such development that the 1919 and the 1929
agreements were signed.

Britain and Italy have signed an agreement in 1919 over Lake Tana of Ethiopia.
According to this agreement in respect to Great Britain’s interest to control the Lake Tana
region, Italy offers to support Great Britain to get from Ethiopia the concession to carry
out works of barrage in the Lake itself. Following this in 1925, an exchange of notes
modified this agreement in such a way that could expand British claim of controlling the
Lake Tana region. The Article reads:

Italy recognizes the prior hydrological right of Egypt and Sudan…..not to

construct, on the head of the Blue Nile and the White Nile (Sobat) and, in their
tributaries any work which might sensibly modify its flow in to the main river.

Ethiopia opposed this agreement and notified its position to the government of Italy and
Britain.

3. The 1929 Agreement108

The 1929 Nile Waters Agreement was concluded between Great Britain and Egypt, the
former as the colonial power responsible for the Sudan (It is called the Anglo Egyptian

106
Ibid
107
Ibid
108
Ibid

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Condominium over Sudan). The agreement was made mainly to secure the Nile water for
Egypt by limiting the rights of the Sudan and rejecting that of the remaining lower
riparian. Under the term of this agreement Egypt acquired the right to control or veto any
construction on the Nile that could affect her interest in terms of quality or quantity.
Egypt also acquired the right to use 48 billion cubic meters of the Nile flow per year and
only 4 billion cubic meter was allocated to the Sudan. In addition to this, Sudan gave
recognition of Egypt’s historical and natural rights with respect to the water of Nile. This
agreement was meant to establish a prior appropriation right for Egypt and to a limited
extent to Sudan. This agreement could not have any validity, since, it is made between
the two states, Egypt and Britain on behalf of the Sudan which does not include any of
the upper riparian.

This was a colonial agreement that was made during the colonial era. And it is an unfair
agreement since riparian countries are asked to be bound by an agreement to which they
are not a party.

4. The 1959 Agreement for the Full Utilization of Nile

This agreement was signed between Egypt and Sudan for the Utilization of the Nile
Water on November 8, 1959. Change of regime in Sudan marked the beginning of the
demand to revise the 1929 agreement as it got its independence in 1956. Besides, Egypt
has this plan of building the Aswan dam and before that it was important to make a new
deal of water allocation and on the way to get the recognition of the international
community in order to get fund to finance the project of Aswan dam. Because of this the
1959 agreement was signed between the two down stream nations; Egypt and Sudan.
This agreement effectively bought Sudan’s approval for the dam by greatly increasing the
amount of water under its control and allowed Egypt to undertake a serious of Nile
development projects. The validity of such an agreement starts to be questionable. The
name of the agreement, i.e., “Full utilization of the Nile Water”, by itself entails that as if
Nile water starts in the Sudan and ends in Egypt and left no room for the other riparian.

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According to this agreement, among the 74 billion cubic meter as measured in Aswan
55.5 was allocated to Egypt. They also agreed to divide proportionally the evaporation
and sea passages.

As the previous agreements, this one is also considered to be null and void for other
riparian countries. Because, it made only between two down stream nations so it should
be applicable to them. This treaty is only a bilateral treaty. As a bilateral treaty, it is only
binding upon the Sudan and Egypt. It cannot in anyway bind Ethiopia or any other state
that is not a party to the treaty. Therefore, Ethiopia wouldn’t be obliged to respect it.109

Ethiopia had registered two notable protests in 1956 and 1957 against the conclusion of
the agreement between the Sudan and Egypt even before the agreement between the
Sudan and Egypt even before the treaty was concluded. Ethiopia’s aim for protesting was
to quash any possible thought by the Sudan and Egypt that they were giving rise to
customary international law. Most importantly, Ethiopia’s protest was aimed at not
recognizing any existing benefits or prior appropriations which would result from the
1959 agreement.

IV. What Does International Law Say about the Conflict on the Nile River?

International water laws address the basic interests of the international community to
maintain global peace and security. Their application nevertheless remains limited, since
they still lack maturity, sophistication, clarity and enforceability, and hence are rendered
powerless when a country chooses to ignore the laws in question.

The law of international rivers deals with two kinds of rivers. The first one governs
Boundary Rivers while the second deals with successive rivers. Boundary Rivers occur
along the boundary of two or more sovereign states. There is, therefore, common/joint
sovereignty over Boundary Rivers. This common sovereignty determines the law
applicable to the waters of Boundary Rivers. The law developed together with the need to

109
Getachew Abera, Poletics of Nile, chora.virtualave.net/egyptandnile.htm, Accessed on February 2009

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delimit and ultimately demarcate state boundaries. The law of Boundary Rivers
developed much earlier than the law relating to successive rivers. There are well-settled
rules of international law regarding Boundary Rivers. Nevertheless, as regards successive
rivers, as each segment of the successive river occurs within the sovereign territory of a
state, the territorial state is absolute and exclusive sovereignty on that segment. This
sovereign power can, of course, be limited by the state’s consent given either in the form
of treaties or customs.110 So the rights of lower riparians depend on bilateral agreements
concluded with the upper riparian and the right given to them nature itself, the fact that
they are lower riparians.

In theory, international waters are to be distributed fairly and rationally among countries
within the river’s watershed. The Helsinki Rules on the Uses of the Waters of
International Rivers, adopted by the International Law Association in 1966, provide a
guideline for the proper utilization and administration of international rivers in cases
where no specific agreements or traditional understanding prevail. It sets equitable
allotments to countries in a basin not by equal shares but according to specific variables
that help prioritize their various needs, such as:

Topography of the basin, particularly the size of the river’s drainage area in each country;
• Climate conditions governing the basin
• History of water utilization up to present-day usage
• Population
• Comparative costs of alternative means of satisfying the economic and social
needs of each country
• Availability of other water resources to each basin country and
• The avoidance of undue waste and unnecessary damage to other countries.

Although these rules are generally accepted, they are nonbonding in international law. If
applied to the Nile Basin case, there is no doubt that Ethiopia, Sudan and particularly all
the equatorial countries rank higher than Egypt and almost all variables, entitle them to a

110
Ibid

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larger portion of the Nile water. This emphasizes the strong interrelation between
political and international water conflicts, whereby the politically and economically
dominant country generally prevails and controls an international water resource.

Later, upon the request of the UN, the International Law Commission (ILC) produced a
draft convention on non navigational use of international watercourses and was adopted
on May 21, 1997 by the General Assembly. Upon its adoption, 103 voeted in favor, 3
against, 27 (including Ethiopia and Egypt) abstained. To bring the document into force,
35 instruments of ratification are expected but only 16 are found to ratify it. This
convention serve as general framework to ensure utilization, development, management,
conservation and protection of international watercourse. The Convention defines the
term international watercourse in a broader manner as ‘a system of surface waters and
ground waters constituting by the virtue of the physical relationship as a unitary a whole’.

In its part II the convention sets the principle regarding equitable utilization of
international watercourses in relation to other riparian states. Article 5 states that there
should be equitable and reasonable utilization and participation. This article introduces a
new concept about equitable participation, in order to encourage state parties to take part
in the utilization of shared resources among riparian states. The ICJ ruling in the
Gabcikovo Vs Nagymaros, a case between Czechoslovakia and Hungary support the
provision of this convention (Article 5(2)). ICJ states the obligation of equitable
participation and to establish a joint regime of cooperation between for the utilization,
protection and conservation of the water resource.

In its Article 6, the convention tries to discuss as to what does equitable and reasonable
utilization mean. The article puts illustrative list to determine the equitability of use with
different physical, environmental, economic and demographical factor.

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Article 6: Factors Relevant to Equitable and Reasonable Utilization

Utilization of international watercourse in an equitable and reasonable manner within
the meaning of article 5 requires into account all relevant factors and circumstances,
including,
a. Geographic, Hydraulic, climatic, ecological and other factors of a natural
character
b. The social and economic needs of the watercourse states concerned
c. The population dependent on the Water course State
d. The effects of the uses of the watercourses in one watercourse state on the other
watercourse state
e. Existing and potential use of the watercourse state
f. Conservation, protection, development and economy of use of the water resource
of the watercourse and the costs of measures taken to that effect
g. The availability of alternatives, of comparable value, to a particular planned or
existing use

Article 7: Obligation not to Cause Significant harm

1. Watercourse state shall, in utilizing an international watercourse in their territories,

take all appropriate measures to prevent the causing of significant harm to other
watercourse states.

The no significant harm principle (stated in article 7) creates a controversy as to how it s

going to be determined and implemented. For instance, Ethiopia an upstream nation
wants to develop a hydraulic projects on the Nile and downstream nations on the other
side objects on the ground that this project would substantially harm their established use.
Currently there are two understanding regarding equitable utilization and no harm
principle.111 Some argue that in this part of the convention, the overriding principle is the
no harm principle. In such a case , Egypt and Sudan may show occurrence of significant
harm on the established right, since there is going to be a change in the water quantity

111
Ibid Pp.24

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when it is used for irrigation and domestic conception. Others argue that even if the
convention strikes a balance, it favors an equitability principle.

Article 10 of the Convention also state as no state can claim priority of use over the other
riparian in international watercourse. This seems a challenge to the doctrine of prior
appropriation.

Generally speaking, there is neither Customary International Law nor a treaty that
entitles Egypt to Nile Waters within Ethiopian territory.

V. Initiatives towards Cooperation: From HYDROMET to NBI

In spite of the above mentioned problems on the Nile Basin area, different attempts have
been made to take an integrated action to use the water resource of the Nile between the
riparian states. 112

The first Nile based organization was HYDROMET (the Hydro Metrological Survey of
the Equatorial Lakes), which was established to make a hydro metrological survey
around the lake found in the equatorial region. It was established with the sole purpose of
collecting and analyzing hydro metrological data to manage the water balance of the
upper Nile catchments and to give prediction as to the occurrence of flooding. As this
initiative failed to incorporate the issue of water allocation, Ethiopia did not join the
organization until 1971 and later joined as an observer. Its failure to incorporate Ethiopia,
the major source of the Nile Waters, as a paramount member made the organization to be
weak and lack all inclusiveness.

In 1983, Undugu replaced the Hydromet under the primary objectives of promoting trade,
infrastructure development, and environmental protection among its member states.
Similarly, Ethiopia, Kenya and Tanzania excluded themselves from being an active

112
Seife, Ayalew, The Nile Water Crises: a Demand for Justice (the NBI: a Way Towards a Basin Wide
Legal Arrangement),(unpublished), 1999, Mekelle, Pp. 6

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member and assumed an observer status. Again, this initiative did not take into account
major issues like, water allocation.

TECONILE (Technical Cooperation Commission for the Promotion and Development on

Nile) is the third regional organization that replaced the Udungu. TECONILE is an
extended version of Hydromet initiative, which is established by the Nile Council of
Ministers Agreement in 1992 in Kampala, Uganda. Upon the agreement of Nile-COM
(Nile Council of Ministers of Water Resources) six of the ten riparian states namely the
DRC, Egypt, Sudan, Tanzania and Uganda were represented as a permanent members
while later on Ethiopia, Eritrea, Kenya and Burundi opted to participate as observers. Its
main concern was environmental protection and water quality control but later when the
Nile Basin Action Plan was drafted in 1995, it incorporated the issue of equitable
entitlement of the Nile water to all riparian states as the agenda. Beside this, TECONILE
played an important role in organizing “Nile Conference” back in 1993. Following this,
consecutive conferences have been made almost in all riparian nations. This forum has
created venues to the basin States, International Organizations, Leaders and politicians to
develop common understanding of the water problem of the basin. However, the main
problem related with TECONILE is its ambitious projects that were estimated to cost 100
Million US dollar. The money actually raised was too small to cover the intended
projects.113

Finally, the Nile Basin Initiative (NBI) succeeded the TECONILE in February 1999. The
NBI during its inauguration in Dares Salem, Tanzania, raised the issue of “Water
Entitlements” as its primary agenda. Because of this, all the basin states, including
Ethiopia, that were not active members in the previous initiatives become members. The
NBI is currently governed by the highest decision organ called the Nile-Com that is
composed of Ministers of Water affairs of all riparian States.

113
Ibid Pp.7

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3.6. WATER AND CONFLICT

Ismail Serageldin, former vice president of the World Bank, echoed a then commonly-
held belief when he warned in 1995 that “the wars of the next century will be about
water”. 114
Several characteristics of water could support such gloomy prediction. First,
water is a fundamental resource, indispensible to all forms of life on earth. Reliable
freshwater resources are crucial to human and environmental health, as well as economic
development: almost every sector of human activity depends on water resources, through
agriculture, industrial production or power generation. Second, there is no direct
substitute for water, unlike other resources such as oil. And third, fresh water is becoming
scarce. Even though fresh water is renewable to some extent, supplies are not infinite and
its availability is diminishing due to population growth, economic development, and
increasing pollution. Access to water is, therefore, a question of life or death, which
easily becomes an emotionally charged debate. The facts that water also plays an
important role in many traditional and religious customs deepens its emotional value.

Nevertheless, with a single exception in 2500 B.C., a war has never been fought over
water, and a broad majority of experts support the view that such wars are not likely.
However, competing demands for water resource that cross international boundaries have
led a persistent tensions and often hampered economic development. For example we can
take tension among Turkey, Syria and Iraq has constrained construction of the Southerner
115
eastern Anatolia project. By threatening political and social stability, incidents of
interpersonal violence can become national or international concerns.

In his topic we will explore some points on how conflicting interests in and lack of access
to adequate water resource can lead to political tensions and water disputes, which can
contribute to instability, and ultimately increase the threat of conflict on both the intra-
and interstate levels.

114
Woodrow Wilson International center for Scholarships, Water and Conflict.
115
Ibid

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3.6.1. How is Water Linked to Conflict?

Access to adequate Water and Conflict

The most direct link between water and conflict lies in disputes over access to water of
adequate quantity and quality. While these disputes arise on all geographic scales, from
the local to the international level, they are likely to contribute to conflict only on the
local and interstate level.

Competing claims for scarce water supplies are the most obvious cause of water-related
conflict. Tension over water allocation can increase when water is scarce, but even when
the resource is not severely limited, its allocation among users and uses can highly be
contested. The coexistence of variety of users and uses makes the emergence of
conflicting interests over water unavoidable: parties claiming their share of water often
belong to different sectors, such as agriculture or industry, or to different population
groups, such as different clans or ethnic groups. But conflicts also emerge within these
groups, for example between subsistence and commercial producers or between rural and
urban population. As cities often withdraw water from, and release wastewater to, areas
outside their administrative boundaries, thus affecting a mostly rural population, If
competing claims for the use of a water resource are not settled in a way that is
acceptable to all stakeholders, they can lead to a dispute and even to a violent conflict,
between the parties or with state authorities. For example, conflicting rural and urban
water need led to violent protests in the province of Shandong, China, in the downstream
section of the Yellow River Basin. In July 2000, thousands of farmers clashed with
police, protesting the government’s plan to divert water to cities and industries from a
reservoir that provided irrigation for local farmers. Several people died in the riots. In
Owens Valley, California, farmers bombed a pipeline supplying water to Los Angeles in
the 1920s. 116

116
Ibid

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Water quantity also is one of the main issues in disputes between upstream and
downstream water users. Diverting water for irrigating fields or to supply drinking water
to large cities can reduce the amount of water that flows downstream. The timing of
water flow is also important; thus, the operation of dams is also contested. For example,
upstream users might release water from reservoirs in the winter for hydropower
production

3.6.2. Water Conflict in the Middle East

Water ownership, management, and use are among the most critical problems
confronting the modern Middle East. These water problems have become interwoven
with deep-seated political, demographic, economic, and even religious conflicts, making
it difficult to isolate technological and legal issues that, on their own, might be equitably
resolved Reducing regional political tensions is thus a prerequisite for reaching
agreements and promoting cooperative efforts among states sharing mutual resources.
The Jordanian-Israeli agreements on water sharing may set an important precedent for the
region, inspiring confidence that cooperation rather than conflict can relieve tensions and
resolve long-standing problems.117

1998: Continued Syrian development on the upper Yarmuk leads to increased salinity in
the lower Yarmuk and Jordan Rivers, lower water levels in the Dead Sea, and reduced
irrigation water for Jordan's East Ghor development project. In addition, up to 40 percent
of the Yarmuk's waters have been diverted. Jordan's access to the Yarmuk, one of its
principal sources for irrigating the Jordan Valley, is threatened, as is Israel's downstream
flow. Jordan faces a devastating crop failure as a result. Jordanian diplomatic protests,
echoed by Israel, are ignored by Syria, which threatens military action against Jordan if
its development plans suffer interference.

2005: Turkey has fully implemented its GAP (Southeastern Anatolia Project) project,
with disastrous impact on Syria's available Euphrates water, the flow of which is reduced

117
Mary e. Morris, Studies in Conflict & Terrorism, Jan-Mar (1997), Vol. 20 Issue 1, p1, 13

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by 40 percent. The impact on Iraq is even worse--it now receives only one-eighth of its
1989 supply. An increasing rate of population growth in both Syria and Iraq, agricultural
catastrophe in the form of crop failure in Syria, and increased indebtedness on the part of
both countries, leads to a destabilization of domestic political and strategic positions. The
deprivation of Euphrates water is the last straw for Iraq and Syria: They see Turkish dams
built to improve the Turkish economy as a major security threat as well as an attempt by
the West to use its ally, Turkey, as a weapon against Arabs. In addition, focus on Turkey
serves internal purposes for both Syria and Iraq as a means of solidifying internal support
against an external enemy.

Thus, despite their mutual antagonism, Syria and Iraq form an uneasy alliance against
Turkey. They pursue a series of diplomatic and military actions to isolate Turkey, citing
human rights violations as well as water exploitation and misuse to gain support from
both Turkey's NATO allies and from Arab states who may be willing to support an oil
embargo against any NATO state coming to Turkey's aid. Reports are received that a
joint Iraqi-Syrian force is planning an attack on Turkey's southernmost dams.118

These scenarios are not as fanciful as they might appear. In a region where water ranks
above oil as the most precious resource, water ownership, management, and use are some
of the most difficult and serious problems that the modem Middle East confronts. They
are eminently solvable if considered and resolved on their own terms as legal and
technological problems. In the Middle East, however, water problems are entangled with
unresolved border issues, massive population increases, diminishing agricultural
resources, increasing industrialization, and changing living standards, in addition to
geographic reality and issues of religion, culture, politics, and tradition. All of these
elements complicate a difficult multinational resource management problem in a region
where inter- and intrastate hostilities prevail. With no binding international law regarding
shared resources and no measures of enforcement, water is already a fundamental
political weapon in this region. It has also been used as a military weapon, a dangerous
precedent for a region plagued by long-standing, corrosive differences.

118
http://www.mideastweb.org/strategy.html, May, 2008

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Destruction or spoliation of natural resources has been a military tool throughout history.
Armies have poisoned wells, salted the earth, and destroyed crops, from the Punic Wars
to the Gulf War. Not surprisingly, then, the militarization of water conflicts in the Middle
East has occurred in the past and may well continue into the future. Armistice agreements
signed in 1949 between Israel and the Arab states, for example, did not deal with water,
nor was the postwar atmosphere congenial to cooperation. Each of the riparians along the
Jordan River system moved to utilize the water unilaterally. In the absence of cooperative
efforts and in the presence of unresolved political and security disputes among riparians,
the only viable means to access or secure water rights was frequently seen as military
force. The 1994 agreements between Israel and Jordan over ownership and use of
mutually shared water resources may point the way toward future resolution of water
problems, but vast areas of disagreement remain throughout the region.

While water issues in the Middle East are primarily matters of scarcity, allocation, use,
and management--and thus most properly internal state matters--water has become both a
legitimate source of friction between regional states and a mask for other underlying
tensions. Syrian, Jordanian, and Israeli disputes in the 1950s and 1960s, for example,
illustrate instances where water was a primary source of conflict. Iraq's 1980 attack on
Iran over the control of the Shatt al-Arab, a disputed boundary between the two countries
since 1639, illustrates the use of water as a surrogate issue. Competition for fresh water
factors into many regional political controversies as well, including the Israeli-Palestinian
dilemma, tensions among Syria, Iraq, and Turkey, and potential problems among
Ethiopia, the Sudan, and Egypt.

The Jordan River system has witnessed more severe international conflict over water than
any other river system in the Middle East. Prior to the signing of the Jordanian-Israeli
peace accord in 1994, the Jordan River area was the most likely water conflict flashpoint
in the region, since both Israel and Jordan had moved into full use--and subsequent

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shortage conditions. The 1994 agreements, however, have, at least for the present,
defused the situation, replacing confrontation with negotiation.119

The main source of water for Jordan is the Yarmuk River, a major tributary of the Jordan
River that flows through the East Ghor Canal. Other sources of water for Jordan include
aquifers of limited potential, such as the now nearly depleted Azraq Oasis that supplies
Amman. The East Ghor Canal, designed by Jordan in 1957, was to be the first section of
an ambitious plan, the Greater Yarmuk Project, itself an outgrowth of the water sharing
agreement developed in the early 1950s by U.S. envoy Eric Johnston. The project was to
include the construction of two dams on the Yarmuk, including the Unity Dam on the
border between Jordan and Syria, construction of a West Ghor Canal with a siphon across
the Jordan River to connect it with the East Ghor, construction of seven dams to utilize
seasonal flow on side wadis flowing into the Jordan, and drainage facilities. The United
States agreed to finance the building of the Unity dam and the two irrigation canals, as
well as Israel's National Water Carrier system, which was to divert water from the Jordan
River as well. Israel was to provide Jordan annually with 100 million cubic meters of
water from the Sea of Galilee.

In 1964, however, Israel effectively annexed the waters of the Sea of Galilee by damming
its southern outlet without international agreement and extending the National Water
Carrier to the south. In retaliation, an Arab League summit conference decided to divert
the northern Jordan River's tributaries, the Hasbani River and Wazzani springs in south
Lebanon and the Banias River on Syria's Golan Heights, through Syria and down to the
Yarmuk. The Arab headwater diversion project began in 1965; Israel responded with a
series of aircraft and artillery attacks on the diversion project, which in 1967 culminated
in raids into Syria and an increase in water related hostility that set the stage for the 1967
Arab-Israeli War. Israel's search for water security can be considered one of the principal
causes of the 1967 war.

119
Ibid

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The 1967 Arab-Israeli War resulted in an Israeli victory that increased existing Israeli
fresh water reserves and ground aquifers (in the West Bank) and riparian rights over
upstream tributaries to the Jordan by almost 50 percent. It disrupted work on the East
Ghor Canal as well, since the ceasefire lines gave Israel control over half of the length of
the Yarmuk River, compared to 10 km before the war. Further development of the
Yarmuk was thus dependent upon Israeli consent. The Jordanian-Israeli peace accord of
1994, however, may alleviate much of this problem, since it provides for the building of
the East Ghor Canal and the reapportionment of at least some of the disputed water
between the two countries.120

With the emergence of the Palestine Liberation Organization (PLO) after the 1967 war,
the struggle for water took on an increasingly political cast. The PLO mounted intensive
campaigns against Israeli settlements in the Jordan Valley, peaking in 1968-1969 with
raids against Israeli water installations. Israel's initial response was a series of military
efforts to stop PLO activities. By 1969, however, the Israeli cabinet changed its methods:
In an attempt to pressure King Hussein to move against the PLO, Israel attacked the East
Ghor Canal several times, causing extensive damage to Jordanian irrigation.121 In 1970-
1971, King Hussein expelled the PLO from Jordan and the Canal was rebuilt, although
the master plan has never been implemented. While perceptions of mutual interest
between Jordan and Israel have led to amicable resolution of potential crises in the last 20
years, further development work on the East and West Ghor Canals effectively has come
to a standstill. Full utilization of the Canal has been hampered by the presence of silt and
debris; past efforts to remove the debris have been halted by Israel for fear that the level
of the Jordan River would be affected. Even if the East Ghor Canal was fully utilized,
however, it could not meet the needs of Jordan's rapidly increasing population, which is
doubling every 18 years.

In addition to water received from the Yarmuk River and West Bank aquifers, Israel
derives over 20 percent of its water from the disputed Golan Heights, which contains the

120
Ibid
121
Thomas Naff and Ruth C. Matson, Water in the Middle East: Conflict or Cooperation? Boulder, CO:
Westview Press, 1984, p.45

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headwaters of the Jordan River that supplies both Jordan and Israel. Together, the West
Bank and the Golan Heights contain up to two-thirds of the water Israel uses. Israeli and
Syrian negotiations over the Golan Heights thus involve more than strategic issues; for
both countries, access to scarce water resources is also a consideration.

Israel's military presence since 1978 in south Lebanon also has real or perceived water
implications: The Israeli presence guarantees the uninterrupted flow of the Wazzani
Springs and the Hasbani River, which originate in Lebanon and flow into Israel. Lebanon
has also long suspected Israel of designs on the Litani River, which originates in
Lebanon's central mountains and flows into the sea 40 miles south of Beirut. Despite
consistent Israeli denials of interest in the Litani because of the expense involved to
successfully divert Litani waters into Israel, many Lebanese remain convinced that the
Litani is the real reason for the continued Israeli occupation of southern Lebanon.
However, the waterway of real issue to Israel is not so much the Litani (which has a
much reduced flow by the time it reaches southern Lebanon), but the Wazzani Springs,
which feed into the Hasbani River. The Hasbani, along with the Banias Springs, empties
into Lake Tiberias (Lake Kinneret), providing water for the Negev Desert via the Israeli
National Water Carrier.

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REVIEW QUESTIONS

1. Discuss the reason for the water conflict of water use in the Middle East and the
endeavors taken to solve the problems.

2. Briefly discuss the reasons for the conflict of water in the Nile Basin.

3. How do you see the application of 1959 agreement between Egypt and Sudan in
light of the international water laws?

4. Explain the difference between boundary rivers and successive rivers. Do you
think there exists a universally accepted International Law regarding the
utilization of successive and contiguous rivers?

5. Briefly discuss the absolute territorial sovereignty in relation to utilization of

water resources by upper and lower riparians. What rights do you thing the
lower riparian states can exercise?

6. The utilization of International Successive rivers by lower riparians depends

upon the comity of upper riparians. Comment.

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CHAPTER FOUR:ETHIOPIAN WATER LAW

INTRODUCTION

The country, Ethiopia, located on the horn of Africa, is a mountainous country and five
times the size of the United Kingdom. It is bordered by Sudan, Eritrea, Djibouti, Somalia
and Kenya. Regarding the water budget, the climate of the country is characterized by a
pronounced rainfall variability. Annual rainfall varies from less than 100 mm along the
border with Somalia and Djibouti, to 2400 mm in the southwestern highlands, with a
national average is 144 mm per year. In the southern and eastern highlands, there is
marked bi-modal rainfall distribution, with the first and smaller rains (belga zenab)
peaking in April and the second in September (keremt zenab). The main dry season
extends from October to February, being longer and drier in the north. Rainfall
variability is very important particularly in the lower rainfall areas of the North-East
highlands where the recurrence of drought is a common phenomenon. Considering the
hydrology of the territory, most rivers are seasonal and about 70 per cent of the total
runoff takes place during the months of June and August. Dry season flow originates
from spring and provides base-flow for small-scale irrigation. Ethiopia known to be the
“water tower” of Northeast Africa is subdivided into 12 river/drainage basins. In this
chapter we will discuss about the laws and policies of the country on water resource
management.

4.1. WATER RESOURCE IN ETHIOPIA

With its current per-capital freshwater resources estimated at 1,924 m3 , Ethiopia is

endowed with one of the largest surface freshwater resource in Sub-Saharan Africa.
However, only 2% of the potential is annually utilized, 86% of that going to irrigated
agriculture. On the other hand, Ethiopia’s land resource potential for irrigation
development, disregarding available water, is very large. Ethiopia, with its different
geological formations and climate changes, is endowed with considerable water resources

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and wetland ecosystems, including 12 river basins, about 14 major lakes, and some
manmade reservoirs. About 123 billion cubic meters of water runs off annually from the
above sources. Most of them are trans-boundary Rivers

A review of master-plan studies and related river-basin surveys shows that the aggregate
annual runoff from the 9 river basins amounts to 122 billion m³. The 3 largest river basins
(Abbay, Baro-Akobo, and Omo-Gibe) contribute 76% of the total runoff from a
catchment area comprising only 32% of the total area of the country. Those 3 river basins
have much larger specific discharges than the other 7 river basins, as table 1-2 shows.
Their large runoff stems from the fact that the river basins occupy the western and
southwestern parts of Ethiopia, where the highest concentration of rainfall occurs. The 3
Eastern River basins are dry. They include Afar-Danakil, Aysha, and Ogaden.122 The
three largest basins (Abbay, Baro-Akobo and Omo-Gibe) contribute 76% of the Nile
River flow from a watershed area comprising 32% of the country’s territory. The country
contributes to about 85% of the Nile River flow. On the other hand, Afar-Dankil, Aysha
and Ogaden basins are dry revealing the spatial and temporal distribution of water
123
resource in Ethiopia. The distribution of water resource in the Country is directly
related to the prevailing rain pattern that has become increasingly erratic. 70-80 % of the
runoff comes from the rainy season ranging from July to September. Of the total annual
runoff about 83% originates from Abbay (Blue Nile), Baro Akobo, Tekeze (Atbara) and
Omo Gibe river basins limiting the contribution of other eight river basins about 17%.

Regarding surface water quality, River water in Ethiopia is, with a few exceptions,
generally good quality with respect to suitability as a source for drinking and for
irrigation with respect to salinity hazards and chemical pollution. However, treatment
will be required against biological contamination and turbidity which is very high in
almost all the river waters. The exceptions to this are rivers in the Rift Valley Lakes
system and the River Akaki in the vicinity of Addis Ababa. Most of the lakes in the Rift
valley Basin have poor water quality owing to the presence in the valley of extensive

122
FDRE, Ministry of Water Resource, water Resource Development program Main report, 2002, page 12
123
Getachew Abdi Zerfu, Management Aspects of Rural water Sustainability in Ethiopia, International
Institute for Infrastructural, Hydraulic and Environmental Engineering, (February 2002), Pp.9

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saline and alkaline springs .The rivers flowing out of such lakes are also contaminated. In
some cases, the saline springs join the rivers directly and affect their quality. Industrial
effluent from big cities, such as Addis Ababa, can quickly and severely impair water
quality. Water quality has been analyzed at Aba Samuel Reservoir on the Akaki River,
downstream of Addis Ababa, which has been affected by 26 industrial discharges. These
industries are discharging their industrial effluents in the Little and Greater Akaki Rivers
which finally join the Aba Samuel Reservoir.124

Table 4-1. Surface-water resources of major river basins125

No. River basin Catchment area Annual runoff Specific discharge

(km2) (BM3) (l/s/km2)
1 Abbay 199 812 52.6 7.8
2 Awash 112 700 4.6 1.4
3 Baro-Akobo 74 100 23.6 9.7
4 Genale –Dawa 171 050 5.80 1.2
5 Mereb 5 700 0.26 3.2
6 Omo-Gibe 78 200 17.90 6.7
7 Rift Valley 52 740 5.60 3.4
8 Tekeze 89 000 7.63 3.2
9 Wabe Shebele 200 214 3.15 0.5
10 Afar-Danakil 74 000 0.86 -
11 Ogaden 77 100 0 -
12 Aysha 2 200 0 -
Total 1 136 816 122.00

Surface water resources, as we can see from the table, are ample though their distribution
limits their availability. The Country is also known for its ground water, though its
126
potential has not been assessed in detail. However, it is widely reported that Ethiopia
possesses a groundwater potential of approximately 2.6 billion m³. Not only are the yield
levels of water wells too low (less than 5 liters per second) but wells are generally too

124
Zewdie Abate, water resources Development in Ethiopia, an Evaluation of Present Experience and
Future Planning Concepts, A management Method for Analyzing a key Resource in a Nations Development
(1994), Pp. 41
125
Ibid
126
Federal democratic Republic of Ethiopia Ministry of Water Resources, http://www.mowr.gov.et ,
11/15/2008

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deep to justify economic exploitation of groundwater resources for irrigation purposes in

Ethiopia.

Ethiopia has abundant surface and groundwater resources potential of which groundwater
has a lion share. With regard to groundwater, the exact potential of the country is
unknown so far. However, it is widely reported that Ethiopia posses an extractable
groundwater resources potential of approximately 2.6 billion metric cube mostly in its
Western, Southern, Southwestern, and Central low lands. The preliminary estimated
amount of yearly groundwater recharge of the country is about 2.6 billion metric cube.
127
Recent studies indicated that the potential is much greater than this amount. Most of
the developed groundwater resources are mainly used for domestic and industrial water
supply.

Ground waters in unconsolidated aquifers are usually of excellent quality, being naturally
flittered. The water is normally clear, colorless and normally free from microbar
contamination and thus requires minimal treatment. As a consequence of the slow travel
times in the flat plains and due to the long contact time with the sediment, the ground
water often contains significant qualities of minerals in solution. High concentration of
fluoride are common in most of the rift valley boreholes and springs. The concentrations
are above 1.5 parts per million (PPM) which is over the limits of drinking water
established by the World Health Organization.

Table 4.2. Groundwater Potential, Average annual runoff the major river basins
and corresponding surface area and runoff percentages128

No River Basin Area in Annual Groundwater Surface Annual

Km Runoff Potential in area of runoff as a

127
Getachew Abdi Zerfu, Management Aspects of Rural water Sustainability in Ethiopia, International
Institute for Infrastructural, Hydraulic and Environmental Engineering, (February 2002), Pp.9

128
Ibid Pp.11

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square Metric Cube River percentage

Basin as of the total
percentage annual
of the total runoff (%)
area (5)
1. Abay (Blue Nile) 210,846 52.62 1.8 18.6 42.6
2. Awash 112,696 4.6 0.14 9.9 3.7
3. Baro-Akobo 74,102 23.55 0.31 6.5 19.0
4. Genale-Dawa 171,042 5.88 0.03 15.1 4.8
5. Tekeze 90,001 8.13 0.2 7.9 6.6
6. Wabi-Shebele 202,697 3.16 0.04 17.9 2.6
7. Omo-Gibe 78,213 17.96 0.1 6.9 14.6
8. Mereb 5,7000 0.15 0.05 0.5 0.1
Rift Valley 52,739 5.63 0.1 4.6 4.6
9. Dankil 62,882 0.86 5.5 0.7
10. Ogaden 72,121 6.4
11. Aysha 2,223 0.86 0.2 0.7
Total 1,135,262 123.4 2.77 100 100

Table 4.3. Water Supply coverage in Ethiopia129

Regional Sate Population (x 106) Water Supply Coverage in

percent total population of
respective
Urban Rural Urban Rural
Tigray 622 3072 59 29
Afar 99 1117 44 14
Amhara 1690 14615 96 23
Oromia 2648 19706 76 24

129
Ibid, Pp.14

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Diredawa 229 89 68 37
Harari 97 63 25 17
Somali 560 3138 14
SNNPR 958 11557 83 24
Gambella 36 175 35 14
Benshangul- 47 490 27
Gumuz
Addis Ababa 2495 0 70 0

4.2 . USES AND DEMANDS OF WATER RESOURCE IN DIFFERENT SUB –

SECTORS IN ETHIOPIA

I. Irrigation
Irrigation systems are supplied from run-off, from river flows or from storage releases by
pumping or diverting from weirs and by cutting through river banks. There are very few
dams to store surplus supplies for use at low flow periods.130 Irrigated farmlands
countrywide in 1991 comprised some 64,000 small-scale schemes and 112,105 medium-
and large-scale schemes. Ethiopia’s Ministry of Water resource reports that the total area
under irrigation increased from 176,105 in 1991 to 197,250 in 1998. Most of that
increase, a total of about 21,145 hectares of modern small-scale irrigation schemes,
stemmed from growth in small-scale irrigation in the various regions. Little or no
development occurred in medium- and large-scale irrigation during that period. Irrigation
coverage has not grown significantly since then.131

On a per capita basis, Ethiopia has developed irrigation over an area of a mere 0.3 ha per
100 people, vis-à-vis its potential of about 4.0 hectares per 100 people. Despite the vast
potential, irrigation infrastructure has remained underdeveloped while Ethiopia has

130
Zewdie, Abate, Water Resource Development in Ethiopia, An Evaluation of of Present Experience and
Future Developing Concepts, 1994, Pp. 47
131
FDRE, Ministry of Water Resource, water Resource Development program Main report, 2002, page 13

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endured persistent drought and famine. There are 4 categories of irrigation schemes
countrywide. They include traditional schemes, modern communal schemes, modern
public schemes, and modern private schemes.132

Traditional small-scale schemes: up to 100 hectares in area, built and operated by

farmers in local communities. Traditionally, farmers have built small-scale schemes at
their own initiative, with Government technical and material support. They manage them
in their own users’ associations or committees, irrigating areas of 50 to 100 ha, the
average ranging from 70 to 90 hectares. A total of 1,309 such schemes existed in 2000,
covering an estimated 60,000 hectares. Farm families use traditional systems in irrigating
such crops as cereals, pulses, oilseeds, sugarcane, vegetables, fruits, and chat, over areas
ranging from 0.2 to 0.5 hectares. The average farm size for current planning purposes has
been set at 0.25 hectares.

Water users’ associations have long existed to manage traditional schemes. They are
generally well organized and effectively operated by farmers who know each other and
are committed to cooperating closely to achieve common goals. Typical associations
comprise up to 200 users who share a main canal or branch canal. They may be grouped
into several teams of 20 to 30 farmers each. Such associations handle construction, water
allocation, operation, and maintenance functions.

Modern communal schemes: up to 200 ha, built by Government agencies with farmer
participation. Normally the government constructs communal schemes with farmer
participation for areas extending from 20 to 200 ha. Modern communal schemes were
developed after the catastrophic drought of 1973 as a mean to improve food security and
peasant livelihoods by providing for cash income through production and marketing of
crops. There are 288 modern communal schemes in Ethiopia that are capable of irrigating
a total of approximately 30,000 ha.

132
Ibid

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Modern communal schemes are generally based on run-of-river diversion of streams and
rivers, and may also involve micro-dams for storage. Beneficiary farmers usually operate
and maintain them through users’ associations with, in some regions, on-farm support
from zonal departments of agriculture and support for headwork and main canals by
zonal departments of water, mines, and energy. Irrigation commissions or authorities
provide technical support in such regions as Amhara, the Southern Nations Nationalities
and Peoples Region (SNNPR), Oromiya, Tigray, and Affar.

Modern private schemes: up to 2,000 hectares, owned and operated by private investors
individually, in partnership, or as corporations. Private estates pioneered the development
of medium and large-scale irrigation projects in the Upper Awash region during the
1950s and 1960s. They were unexpectedly nationalized in the mid-1970s. During the
1990s some private schemes, mostly in the form of limited companies, re-emerged with
the adoption of market-based economic policy but have expanded relatively slowly.
Currently 18 modern private irrigation projects are operating in some form over a total
area of 6,000 hectares. They are located in the Oromiya, SNNPR, and Affar regions.

Public schemes: over 3,000 ha, owned and operated by public enterprises, as state farms.
The history of public involvement in large-scale irrigation is relatively recent, having
started late in the 1970s. Others, notably Gode West, Omo Ratti, and Alwero-Abobo,
began late in the 1980s and early in the 1990s, but have not yet been completed. Most
large-scale schemes, except the Finchaa Sugar Estate (currently operating successfully),
have been suspended because public involvement was withdrawn as a result of
Government changes. The recently issued water management policy has, however,
committed the Federal Government to small- and large-scale project development in the
new millennium.

Large-scale schemes being operated by public enterprises extend over an area estimated
at 61,000 ha. Two regions, Oromiya and Affar, account for nearly 87 per cent of all
public irrigation schemes, with 73 per cent being located in the Awash Valley. The
SNNPR and Somali regions contain 9.9 and 3.3 per cent, respectively, of public schemes.

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II. Hydroelectric power

Sub-sector overview Ethiopia is endowed with vast energy resources. The gross
hydropower potential of the country is estimated at 650 TWh per year of which 25 per
cent could be exploited for power. Over 70 billion m³ of natural gas, more than 1,000
MW of geothermal power, and several hundred millions of tons of coal and oil shale
constitute the energy potential so far estimated.133 In spite of very substantial hydropower
potential, Ethiopia has one of the lowest levels of per capital electric energy consumption
in the world. Traditional energy resources such as fuel wood, dung, crop-residues, and
human and animal power are estimated to generate 95 per cent of the energy actually
consumed. Electricity and oil products supply the remaining 5 per cent. The electricity
supply is generated domestically, with hydroelectricity accounting for over 90 per cent of
supply. Oil is imported in the form of refined products.

Annual energy consumption is about 25 kWh per capita for electricity, 16 kgoe
(kilograms of oil equivalent) per capita for petroleum, and 276 kgoe per capita for other
sources, mainly of biomass origin. Per capita electricity consumption is among the lowest
in the world, while petroleum consumption is much below the world average of about
600 kg per capita per annum.

The major consumer of the energy is the household sector, which accounts for 82 per cent
of the total energy supplied. The transport sector utilizes more than 70 percent of the
imported oil, while agriculture consumes only 3 percent. Therefore, Ethiopia’s huge
hydroelectric generation potential has barely been exploited. About 160 GWh/year could
be produced if 1 quarter of the potential could be exploited economically by today’s
technologies. That estimate agrees with the estimate in studies by Water and Power
Consultancy Services (WAPCOS). WAPCOS refers to the “technical” potential (although
it would be more appropriate to say the “economic potential”) and gives the parallel
figure of about 145 GWh/year. The WAPCOS study considered water regulation options

133
Ibid

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that require dam/diversion weir lengths of less than 750 meters and dam heights below
120 meters in establishing “technical” or “economic” potential. The installed capacity,
corresponding to 145,000 GWh/year output at an average plant utilization factor of 0.6,
would be about 27,000 MW. The supply system itself is currently capacity-constrained,
with hydroelectric generation capacity hard put to meet demand in terms of peak power
and annual energy output. The situation is exacerbated by low rainfall. Reservoir siltation
in older plants has reduced storage capacity, thereby accentuating spillage requirements
in flood situations and water shortage in dry years.

III. Fisheries and in land Navigation

Conservative estimates put the potential yield of fish resources at 96,000 tons per annum
including over 64,000 tons from the national water in the Red Sea and over 30,000 tons
from inland waters. Recent study has identified nine major rivers and tributaries (Abbay,
Awash, Omo-Ghiba, Genale-dawa, Wabi Shebelle, Baro-Akobo, Tekeze, Mereb and
Barka) that, if harnessed for irrigation and hydropower, could also used for fish
production.134 In addition, the lakes of, for example, the Rift Valley, as well as the
existing reservoirs (Koka, Fincha, Melka Wakana and Gilgel Gibe) have large potential
of fishery development.

The FAO study (1986) defined the fish-farming zones and species suitable or these zones,
based on water temperature, local climate conditions and water quality. Accordingly, the
hot low lands are found to be suitable for warm-water species like tilapia, claries and
prawns. The highland perimeter and central highlands are suitable for cold-water fish
such as trout.135 However, it has been concluded that other species could also be
developed selectively on the basis of detailed studies on cost benefits, biotechnology and
utility criteria as there are over 100 species of fish reported to be found in Ethiopia. In
spite of the tremendous potential for their development fisheries play a minimal role in
water resources development project. Ethiopian river flow towards the lowlands on

134
Zewdie, Pp. 55
135
Ibid

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precipitous slopes through deep canyons. River navigation thus of limited potential and is
practiced only on the River Baro during the rainy season. In conclusion, it is appropriate
to consider the development of fisheries as part of the water resources development
projects and to increase the production of fish in the country in order to meet the
increasing demand of food.

The transportation potential of Ethiopian waterways and water bodies has not been fully
exploited for economic development. The socio-economic impact of water transport at
the regional or local level may be significant in areas where road transport is difficult.
The income to be generated especially from tourism is not negligible, if modern and
efficient transport systems are organized. Some rivers, for example the Baro-Akobo, are
navigable. The Baro River is a good case in point: the Gambella Regional Government
has undertaken the Baro River Transportation Study. Lake Tana is the water body used
for transportation purposes between Bahir Dar and several islands as far as Gorgora.

IV. Drinking water Demand

The urban and rural drinking-water demands depend on many factors such as climate,
socio-economic conditions, the quality of water and its cost. The urban water supply
standards vary from town to town. In Africa, the demands range from 80 to 145 liters per
capital per day. Apart from the domestic water supply demands, there are a number of
other uses by the urban population. These are mainly of public services, commercial
applications and fire-fighting. The commercial use include hotels, offices, business and
trade establishments. The public services include public bathrooms, swimming-pools,
street flushing and park maintenance. In large cities, the total non-domestic use may be
50% higher than the domestic demand. Leakage is an important factor affecting the
effectiveness of water distribution. From the point of the maintenance of good standards
of health and sanitary conditions, the present domestic water supply status in the towns
and cities of Ethiopia is inadequate.136

136
Ibid pp.52

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4.3. WATER SECTOR DEVELOPMENT PROGRAM (WSDP)

The Water Resources Management Policy is one among the key policies emphasized in
economic development policy. To realize policy objectives, strategies were formulated
that have emanated directly from the sector development policy and are consistent in
indicating the ways and means of concretely implementing the policy objectives. The
Government of Ethiopia has approached the formulation of the WSDP within an
integrated policy and strategic framework. As water is multidimensional in nature,
linkages with other sectoral policies and strategies have become inevitable, such as
Disaster Prevention and Management, Energy, Health, and Conservation policies and
strategies which have been prepared and put in place since 1993.137 In addition there is a
legislative framework to support these policies and strategies. More specifically, the
principles put forward by the Ethiopian Water Resources Management Policy are
explicitly linked to a broader policy framework at Regional and Federal levels. Similarly,
the water policy has given rise directly to the National Water Strategy that in turn forms
the basis for the development of WSDP. It is crucial that these linkages between the
various levels of policy and planning are explicit.

WSDP is the instrument for implementing the water resources management policy. It
follows the already identified and accepted strategy for water-resources management in
the country. It identifies priority intervention areas in a 15-year time horizon and includes
priority projects identified through various sources. Major list of projects came from
river-basin master plans, where resource potentials and their priority areas for long-term
(30–50 years) interventions are identified on the basis of individual river basins. The
WSDP, therefore, provides a fertile ground for the development of individual projects
within its priority intervention areas.

A classical Integrated Water Resources Management (IWRM) framework, inter-alia,

contains a national policy, strategy and legislation, and an investment plan either at the
national or basin level. Other important elements of the framework are coordination,
137
FDRE, Ministry of Water Resource, water Resource Development program Main report, 2002, page25

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financing and monitoring mechanisms to implement the plans; governance mechanisms

to ensure transparency and accountability, and a unique organization responsible for the
whole thing. With the preparation of WSDP, Ethiopia is about to complete the first part
of the IWRM framework. At the same time, the WSDP provides guidelines as how to
move ahead with the second part of the framework.

4.4. ETHIOPIAN WATER RESOURCE MANAGEMENT POLICY

In 1999, one of the major tasks of the Ministry of Water Resources (MoWR) was the
formulation of a comprehensive and integrated water resources management policy. The
major goal of the policy is to enhance and promote all national efforts that seek to
efficiently and optimally use the available water resources for sustainable socioeconomic
development. The policy contains two sections addressing three sub-sectoral issues,
namely water Supply and Sanitation (WSS), Irrigation, and Hydropower.

The water resources policy underpins various national efforts, including the:

• Development of water supply and sanitation services, including livestock

watering
• Development of irrigated agriculture
• Development of hydroelectric power
• Development of inland water transport
• Development of fisheries and aquatic resources
• Protection and conservation of water resources

Objectives of the Water Resources Policy: The major objectives of water Resource
policy are to:

• Develop the water resources of the country for the benefit of the people, for
strategic planning and national wellbeing, and for sustainable security
• Conserve and enhance water resources and the overall aquatic environment of the
country and protect the resources from degradation, pollution, depletion, waste
and misuse on a sustainable basis.

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• Ensure the provision of basic water needs at the household level.

• Allocate and apportion water based on comprehensive and integrated plans and
optimum allocation principles that incorporate efficiency of use, equity of access
and sustainability of the resource.
• Manage and combat drought and famine as well as other slow on-set disasters
through the efficient allocation, redistribution, transfer, storage and use of water
resources.
• Combat floods through sustainable mitigation, prevention, rehabilitation and
related measures.
• Maintain, improve, regulate and monitor the quality of all water resources.
• Utilize, protect and conserve the country's trans-boundary water resources for the
socioeconomic development of all the peoples of Ethiopia.

Policy Principles

The following are the fundamental policy principles that guide the sustainable and
efficient management of water resources in Ethiopia:

• Water is the common and indivisible natural endowment and asset of all the
peoples of Ethiopia.
• Every Ethiopian citizen has the inalienable right to access to sufficient water of
acceptable quality to satisfy basic human needs.
• Water shall be recognized both as an economic and a social good as well as a
private and public good for all-around, viable, fair, and sustainable management.
• The development of water resources shall be underpinned by an integrated
framework needs assessment and objective-oriented and capacity-based planning.
• Management of water resources shall recognize and incorporate social equity
norms, including equitable access.
• Economic efficiency in water resources management shall be insured.
• System reliability and sustainability shall form the basis of plans, programs,
projects, infrastructures and schemes in water resources.

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• Environmental integrity shall constitute a central part of water resources

management.
• The participation of stakeholders (including communities and women) in the
relevant aspects of water resources management shall be promoted and ensured
and the participatory approach--involving users, decision- and policymakers,
planners, implementers, and donors--shall be promoted.
• The principle of "some for all, not all for some" shall be adopted and promoted

The water resource management policy covers most of the issues that need to be
considered in the overall water resource management of the country. To give a few
examples:

➢ Article 2.2.5.A.1. mentions the recognition of water as economic good ,

➢ Article 2.2.2. States that the pricing of water supplies shall aim at full cost
recovery, while rural tariff settings need to be prepared on the objective of
recovering operation and maintenance costs. However, conditions are forcing to
apply full cost recovery tariffs in the rural areas at the moment,
➢ Article 4.1.1. States that the management of water supply systems shall be ensured
to be at the lowest and most efficient level of institutional set up, which provides
for the full participation of users and to promote effective decision making at the
lowest practical level. This is in accordance with the agreement to the United
Nations Development Program and Vision 21,
➢ In Article 2.3.1.2.1. the policy talks about sustainable water supply services to all
the peoples of Ethiopia, as much as conditions permit is clearly stated as an
objective.

Water policies should including the following four main objectives: (i) ensure the
availability of water to all elements of society, including the poor and the
underprivileged, and to take into account the particular needs of women and children; (ii)
develop a legal and regulatory environment that will help the process of decentralization
and sound environmental management that will improve the investment climate for the

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private sector in water development and management, (iii). bring institutional changes
that will help decentralize the management of water resources and enhance the role of
women in the water development, and (iv) develop a state of knowledge and capability
that will enable the country design future water resources management plans by itself
with economic efficiency, gender equity, social justice and environmental awareness.

In general terms, the Ethiopian water Resource Management Policy addresses almost all
the aforementioned issues by calling for an integrated approach; the incorporation of
cross-sectoral interests; the special treatment of women, the disadvantaged, the
unprivileged and rural communities; the participation of the private sector; a
decentralized approach (rural-centered); prioritization of water uses; and the adoption of
a basin approach.

Discuss the points that the policy fails to address?

Although the private sector has been mentioned here and there in the policy document, it
failed to robust enough to attract and involve the sector. Implicitly, it seems that the
policy is inclined to sustain the status quo under which the State will serve as the sole
investor, implementer and manger of water projects in the country.

The policy also failed to mention and underline the need for the establishment of a
permanent legal and institutional framework on shared river basins, most particularly on
the Blue Nile (Abbay), which could entitle Ethiopia to equitable and reasonable share of
the common water resources. It is incumbent upon any future water policy or the revision
thereof to take this framework in to consideration.

The policy is developing giving due attention to general, cross-cutting and sectoral issues.
Inland water transportation, aquatic resources and tourism and recreation issues have
been addressed under the general aspects of the policy. Issues related to water allocation
and apportionment, environment, watershed engineering, water resources management
information system, monitoring, assessment and auditing, water cost pricing (economics

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of water), ground water resources, disasters, emergencies and public safety,

transboundary waters, gender; research and development; water quality management; and
enabling environment have bee dealt under the umbrella of cross cutting issues. The
sectoral part of the policy discusses specific issues in areas of water supply and
sanitation, irrigation and hydropower.

Among the issues raised in the policy, let us make some highlights on issues related to
water allocation, integration of developments, basin development, transboundary water,
water pricing and tariff setting.

Water Allocation and Apportionment138

Regarding water allocation and apportionment, the policy sets detail principles on how
water should be allocated and apportioned:

1. Recognize that the basic minimum requirement, as the reserve (basic

human and livestock needs, as well as environment reserve) has the
highest priority in any water allocation plan.
2. Ensure that water allocation gives highest priority to water supply and
sanitation while apportioning the rest for uses and users that result in
highest socio-economic benefits.
3. Enhance and encourage water allocation that is based on efficient use of
water resources that harmonizes greater economic and social benefits.
4. Ensure that water allocation shall be based on the basin, sub-basin and
other hydrological boundaries and take into consideration the needs of
drought prone areas.
5. Adopt the principle that water allocation shall not be made on permanent
basis, but rather on an agreed time horizon that fits best with the
socioeconomic development plans, especially pertinent to water resources,
subjected to appraisals and revisions in light of new developments.

138
Taye, Assefa, Digest of Ethiopia’s National Policies, Strategies and Programs, 2009, Pp. 318

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To what extent these principles are reflected in the Water Resource Management
proclamation?

Integration Developments

The water resource management policy document underlies the importance of ‘integrated
approach to water resource development for optimal utilization of the Country’s water
resources’. An integrated water resource management (IWRM) promotes the coordinated
development and management of water, land and related resources to maximize the
economic and social welfare in an equitable and sustainable manner. The concept of
IWRM, which seeks an efficient blend of all available resources (fresh surface water,
ground water, precipitation and drainage water) to meet demands of the full range of
water users (including agriculture, municipalities, industry and in-stream flows), is
adopted in the management of water demand as well as water supply.

Basin Developments

The water policy has recognized and adopted the hydrologic boundary or basin as the
fundamental planning unit in water resource management domain. It also indicates that
water resources amendment need to be compatible and integrated with other natural
resources as well as river basin development pals and with goals of other sectoral
developments in health, mines, energy, agriculture, etc.

Transboundary water issues

The policy addresses issues related to Transboundary waters in the following ways:
• Study on sustainable basis Ethiopia’s stake and national development interests in
the allocation and utilization of transboundary waters;
• Promote the establishment of an integrated framework for joint utilization and
equitable cooperation and agreements on transboundary waters;

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• Ascertain and promote Ethiopia’s entitlement and use of transboundary waters

based on those accepted international norms and conventions endorsed by
Ethiopia,
• Foster meaningful and mutually fair regional cooperation and agreements on the
joint and efficient use of transboundary waters with riparian countries based on
equitable and reasonable use principles
• Comply with those international covenants adopted by Ethiopia and mange
Transboundary waters accordingly.139

Compare these principles of the policy with the case of Nile, what initiatives have taken
to implement the principles of the policy on trnasboundary water issues?

Water Pricing and Tariff Setting

The policy relating to water pricing commits to:

• recognize water as a natural resource with an economic value and ensure that fees
are paid for services rendered,
• recognize water as vulnerable and scarce natural resource and ensure that all
pricing systems and mechanisms should be geared towards conservation,
protection and efficient use of water as well as promote equity of access.
• ensure that the price for water should neither be too high to discourage water use
or nor too low to encourage abuses and overuse of water
• promote the tariff setting shall be site specific, depending on the particulars of the
project, location, the users, the cost and other characteristics of the schemes,
• ensure that the basic human needs of water for disadvantaged rural communities,
who cannot afford to pay for development of water systems, shall be borne by the
government, as appropriate, and in so far as the communities are able and willing
to cover the operation and maintenance cost of their own,
• ensure that pricing for urban water supplies shall aim at full cost recovery,

The policy has also specific stipulations pertaining to tariff setting. These are to:
139
Taye, Assefa, Digest of Ethiopia’s National Policies, Strategies and Programs, 2009, Pp. 319

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• ensure that Tariff structures are site specific and determined according to
circumstances,
• ensure that the rural tariff settings are based on the objective of recovering
operation and maintenance costs while urban tariff structures are based on full
cost recovery,
• ensure that tariff structures in water supply systems are based on equitable and
practical guidelines criteria,
• establish a ‘social tariff’ that enables poor communities to cover operation and
maintenance costs,
• establish progressive tariff rates in urban water supplies that are tied to
consumption rates,
• develop flat rate tariffs for communal services like hand pumps and public posts.

4.5. WATER RESOURCE MANAGEMENT IN ETHIOPIA

4.5.1. Development of Water Resource Management in Ethiopia

Water resource development approaches and organizations in Ethiopia have evolved over
time. Prior to the mid-50s, only a small portion of Ethiopia’s water resources was
developed and the government’s administrative role was minimal. In 1956, a Water
Resource Department was established under the Ministry of Public Works and
communications to handle multi-purpose investigation of the Blue-Nile (Abbay) basin.
Over the years, it undertook river basin studies and water well drilling programs. Parallel
to this the Awash Valley Authority (AVA) was established in 1962 assuming
responsibilities for all water activities in the Awash valley. Its mandates include water
planning, development and operation, including water rights demonstration, in the
valley.140

140
Ibid, Pp. 314

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Due to the growing need for water in many parts of Ethiopia, a national Water Resource
Commission (NWRC) was established in 1971 and received responsibility for all aspect
of water use and development in the country, especially water supply for domestic
purpose was the National Water Resource Commission (NWRC). In addition to other
responsibilities this Commission was further entrusted to provide institutional and
managerial facilitation for a clean and adequate water supply for domestic use and
livestock watering purposes. The commission’s powers were broad but were not fully
exercised and implemented due to financial and organizational constraints as well as lack
of commitment and willingness of public authorities to accept a national authority over a
water resource development and management. As a result, the Ethiopian water Resource
Authority (EWRA) was established in 1975 under the Ministry of Mines, Energy and
water Resources. Three agencies namely, Land and water Studies Agency, Rural water
Development Agency and Urban water Sewerage Agency were established under the
umbrella of the Authority. The AVA, however, retained its responsibilities for the Awash
Valley.

In another measure of recognition, the Valleys Agriculture Development Authority

(VADA) was established in 1977. It had similar powers and duties as AVA except that its
jurisdiction was extended to water resources encompassing the whole country. In order to
avoid conflict with AVA, VADA created the Awas Valley Development Agency
(AVDA). However, the latter has admitted powers compared to those that were enjoyed
by AVA.

A further recognition took place in the water sector when a new National resources
Commission (NWRC) was established in 1981 by incorporating VADA and AVDA
under the Water Resource Development Authority (WRDA). The NWRC, in fact, was
composed of the Water Resource Authority, the water Resource Supply and Sewerage
Authority (WASSA), the Ethiopian Water Works Construction Authority (EWWCA) and
Meteorological Services (NMS).

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After about decades of operation, NWRC was dissolved and all the aforementioned
Authorities, save EWWCA, were made accountable to the Ministry of Natural Resources
and Environmental Protection (MNREP), which was established in 1993. Following the
dissolution of MNREP in 1995, water resources management in Ethiopia has been
elevated to a ministerial level in the same year when the government established the
Ministry of water Resources (MoWR) as a Federal Institution for the water sector by
Proclamation No. 4/95. 141

At present, the Regional Administrations are responsible for the development, operation
and maintenance of urban and rural water supply systems in their Region. In 1992, the
Water Supply and Sanitation Authority’s functions (WSSA) were transferred to the
Regions and water development became decentralized. Until then, the WSSA was the
principal agency responsible for water development in rural and urban areas (except
Addis Ababa). But, under Proclamation No.7/1992, the Transitional Government of
Ethiopia drew a new administrative map of the country according to the new organization
of the territory. The new map set out the borders of 14 Regions on the basis of ethnic and
linguistic criteria. The number of Regions was subsequently cut back to nine by
combining nine member states and the capital Addis Ababa, also as a Region.142

WSSA has been absorbed into the Ministry of Water Resources (MoWR) and became the
Department of Water Supply and Sanitation (DWSS). However, the relationship between
the MoWR and the Regional Administrations appears rather unclear. How the
decentralization of water management will be carried out in practice needs to be spelt in
more detail and lack of comprehensive water legislation should be addressed. The local
authorities, on one hand, have the opportunity to determine the needs of their areas. The
Central Government cannot adequately plan what is beneficial for each local zone. Local
Authorities are closer to the people and can understand their needs better. On the other
hand, the Regional bureaus responsible for water management are short of trained and
technical staff.

141
Ibid Pp. 315
142
Caral Corona, Integrated Water Resource Management and Politics: the Case of Ethiopia: Pp. 1

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Ministry of water resources is responsible for formulating policies for the water sectors at
national level, for long term planning strategies, the setting of generic standards and for
the coordination of projects and their funding together with foreign donor agencies. It is
also responsible for legislation with regard to utilization and protection of water resources
as well as the allocation of water between regional governments. It also provides
technical assistance and advice upon request to the regional governments of the country.

Generally, the powers and duties of MoWR that are outlined in Proclamation No. 4/95
and No. 471/2005 include:

• Undertake basin studies and determine the country’s ground and surface water
resource potential in terms of volume and quality and facilitate their utilization
• Determine conditions and methods required for the optimum and equitable
allocation and utilization of water bodies that flow across or lie between more than
one Regional States among various uses,
• Undertake studies and negotiations for treaties pertaining to the utilization of
boundary and transboundary water bodies and follow up the implementation of
same,
• Carry out the study, design and construction works to promote the expansion of
medium and large scale irrigation dams
• Issue permits and regulate the construction and operation of water works relating to
water bodies,
• Administer dams and hydraulic structures constructed with federal budget unless
they are entrusted to the authority of other relevant bodies
• Ensure the provision of meteorological services

Table. 4.4. Water Supply and Sanitation Institution Roles and Responsibilities143

143
Teshome, A. Performance and Future Prospect of Water Supply and Sanitation in Ethiopia (Part II),
P.5

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Institution Responsibility

Federal • Policy setting: preparation &

enforcement of policies, standards, and
regulations
• Technical assistance to regional bureau
for big projects
• National database development
• Coordination and resource mobilization
for the Water Fund
Regional water • Preparation of regional policies, and
bureaus regulations
• Study, design, supervision and
regulation of water supply projects
• Construction of schemes: spring
developments, small & large gravity
schemes, motorized schemes, boreholes
and shallow wells
• Contract out to the private sector
• Build the capacity of zonal and woreda
water offices
• Set water tariffs

Zonal water offices • Capacity building and technical support

to the woreda
• Implementation and monitoring
assignments from regional bureau
• Operation and maintenance in complex
cases
• Woreda water desks
• Construction and maintenance of hand-
dug wells and spring developments
• Monitoring construction done by
regional bureau or private contactors
contracted by the bureau
• Simple operation & maintenance
• Peasant associations/kebeles
• Community mobilization and
contributions of labor and/ or cash
• Site selection

Each of the 9 regions and the Dire Dawa Administrative area has a Regional Water
Bureau (RWB). RWBs roles include project implementation and scheme operation, but
this has changed to one of program planning, management, coordination and capacity

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building in the region. RWBs are now responsible for approving the Woreda programs as
well as consolidating M&E reports of the Woredas for transmittal to MOWR. The
planning and management of town water supply and sewerage services are the
responsibility of Town Water Boards who are expected to contract out operation and
maintenance services to Town Water Utility Operators under performance or service
contracts. Addis Ababa Water Supply and Sewerage Authority (AAWSA) has the
responsibility for management of water and sewerage services in Addis Ababa.

4.5.2. Legislations on Management of Water Resources in Ethiopia

Provisions related to water use and administrations are primarily incorporated in the
1960’s Ethiopian Civil Code. Among other issues, the Civil Code sets many principles on
Water use and administration. Though priority shall be given to the community regarding
the usage of all running and still water144, water can also be owned privately.145
Regarding use of water, the code classified Domestic use,146 Irrigation,147 Industrial
Use.148

Priority of domestic use, riparian doctrine and underground water as a public domain
are the prominent features of water law in the Civil Code’s provisions.

Currently, working provisions on water resource management are found in Water

Resource Management Proclamation No. 197/2000 and its implementing regulation no.
115/2005. Therefore, the provisions of the Civil Code on Water Law are repealed if they
are not consistent with the provisions of the proclamation and the regulation.

For a country to protect and utilize its water resource in a way it produces the highest
social and economic benefit to the community, production of strong legal instrument is

144
Article 1228(1)
145
Article 1229
146
Articles 1232- article 1235
147
Articles 1236-1241
148
Article 1242-1243

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really mandatory. Considering this a proclamation on Water resource Management has

been issued with objective of protecting and utilizing the water resource in a way it can
secure the highest social and economic benefits of the peoples of Ethiopia. Article 3 of
the Proclamations affirms this point.

The purpose of the Proclamation is to ensure that the water resources to the
country are protected and utilized to the highest social and economic benefit of
the people of Ethiopia, to follow up and supervise that they ale duly conserved,
ensure that harmful effects of water are prevented, and that the management of
water resources are carried out properly.

From the readings of this provision we can identify two important concepts as the
purpose of the proclamation:
1. Protection and utilization of the Country’s water resource for the highest social and
economic benefits of the people of Ethiopia.
The following questions may be derived from the above statement:
• What does protection of Water Resource mean?
• What methods are employed for the protection of water resource for the highest
economic and social benefit?
• How can we utilize water resource?
• What methods are stated in the proclamation on the utilization of water resources?

Among other things, the proclamation sets some fundamental principles.

Article 6- Fundamental principles

1) The Integrated Basin Master Plan Studies and Water Resources legislative
framework shall serve as point of reference and ensure that any water resource is
put to the highest social and economic benefit to the people of Ethiopia
2) The social and economic development programmes, Investment plans and programmes
and water resources development activity of any person, shall be based on the

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country's Water Resources policy, the relevant basin Master Plan Studies and Water
Resources laws .
3) The Supervising body shall ensure and administer that the management of any water
resource is put to the highest social and economic benefit of the Ethiopian people In
accordance with the provisions of the Ethiopian Water Resources Policy, Basin
Master Plan Studies and Water Resources laws
4) Management of the water resources of Ethiopian shall be In accordance with a permit
system.

The Purpose of the proclamation

As in the Civil Code, the proclamation also adhere the principle of priority of domestic
users. According to Article 7 of the proclamation, preference shall be made among users.
Domestic use shall have priority over and above any other water use. Domestic use
means the use of water for drinking, cooking, sanitation or other domestic purposes.

In line with the principles of the Constitution, the proclamation introduces the public
ownership of water resource of the country. As of Article 40 (3) of the FDRE
Constitution, ownership of urban and rural land other natural resource is exclusively
vested in the sate and in peoples of Ethiopia. Similarly, the proclamation also states as
water resource is the common property of the state and peoples of Ethiopia.

Different from previous water laws of the country, the proclamation has introduced
permit system in setting the means in which water resource can be used. Accordingly,
any person who wants to construct waterworks, or supply water, or transfer water which
she/he abstracted from a water resource or received from another supplier, or release or
discharge waste water into water resource needs a permit to do so from the supervising
body. 149 Any application for water use permit must be presented to the supervising body
with the necessary details. The application should contain the following information150

149
Article 11 of the Proclamation
150
Article 3 of Water Resource management Regulation No. 115/2005

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• The name and permanent address of the applicant

• The location of the water resources and the intended place of use
• The intended use of water resource
• The volume of water required monthly and annually
• The intended method and manner of use of the water resource
• Where appropriate, investment certificate
• Feasibility studies and maps reasonably required by the supervising body

After analyzing the application, the supervising body will issue the permit within sixty
days, where the proposed use of water doesn’t infringe any person’s legitimate interest
or entail pollution or harmful effects on the water resource and the environment. The
supervising body, with justified and written reasons, may deny the permit. It can also
revoke or suspense the permit where the holder of the permit fails to observe or fulfill
his/her obligations. In this case, the dissatisfied party may bring complaints against the
decisions first to the supervising body and then he/she can also appeal to the competent
court with in sixty days as of the date on which the decision was given.151

Water use and allocation (particularly in rural areas) faces lots of disputes and
disagreements. Disputes have been observed between permit holders and between a
permit holder and a third party concerning rights or obligations arising from permits. In
principle it is the supervising body which is given the power to settle disputes in such
cases. Water use disputes will be taken to the court of competent jurisdiction in the form
of appeal only.152 Whereas, when the dispute is related to the permit and when the parties
are the supervising body and the permit holder, the controversy is expected to be solved
through negotiations. In the event that agreement cannot be reached through negotiations,
the case shall be settled by arbitration.153 The subsequent regulation sets the detail on
how arbitration is going to take place.

Article 36 of Regulation No. 115/2005 sates the following:

151
Article 18 Regulation No. 115/2005
152
Article 9 (1) &(2) of Proclamation No. 197/2000
153
Article 9 (3 &4) of Proclamation No. 197/2000

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1. Subject to Article 9 (2) of the Proclamation pending disputes arising

between the supervising Body and the permit holder which could not
amicably be settle within 60 consecutive days either party may request to
solve the dispute through arbitration. Thereby:
a. each party shall nominate two arbitrators and inform the other
party
b. the arbitrators nominated by the parities shall nominate a third
arbitrator as presiding one in case the parties failed to agree
accordingly the application shall be as provided in the civil code
of Ethiopia
c. the arbitrators shall be governed by the relevant laws of the
regional and federal governments
d. the parties shall have the obligation to provide information
demanded by the arbitrators and cooperate there with
e. the party against whose a decision is given shall have the
obligation to be bound thereby, however, a party disfavored shall
have the right to appeal to the court having jurisdiction.
2. The sit the arbitration shall be in the town where the head quarto r of the
supervising body is located.
3. The parties shall the obligation to cover the expenses necessary to the
arbitrators
4. The provisions of the Ethiopian Civil Code and Civil procedure Code
shall be applicable on matters which are not covered by this article.
As the proclamation states, the provisions of the civil code are still applicable to the
extent that they are in agreement with the provisions of the proclamation.154

Which provisions of the civil code do you think are in agreement with proclamation and still in
effect?

154
Article 32 (2) of Proclamation No. 197/2000

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4.6. RESOLVING WATER USE DISPUTES: THE CASE OF ETHIOPIA

Disputes between individuals, between states, and between states and individuals over
water use is very common in all parts of the world. These conflicts will grow in number,
because the demands that spawn them will continue to increase with the swelling
population. In Ethiopia, where agriculture takes the lion share in the country’s economy
and where there is serious shortage in Water supply, disputes over water use are not
uncommon particularly in the rural regions. Countries employee different mechanisms in
their water laws to resolve disputes which arise from water uses. Among the methods, the
following are the most common:

1. Prioritize Use: As we have discussed in the previous chapters, water has diverse us. It
has domestic us, industrial uses, irrigation, fishing, hydropower, recreational us and
others. Individuals may need water for different purposes. One may need it for
domestic use and the other for industrial. The government may want to establish a
hydroelectric plant while its citizens are in desperate need of drinking water. In a
situation where there is shortage of water resource, protecting all these interests may
not be possible. In that case, dispute will arise. To resolve such kinds of conflicts,
countries have introduced rules of prioritization. In most cases, domestic use has given
priority. This is a method of allocating a fluctuating supply on the demand side, that is
to prioritize the use or user. The historic rights doctrine does this by giving
progressively lower priority to progressively more-recent users, regardless of how the
water is put to use. Prior uses are generally protected in international treaties, although
more recent uses are not put at risk of losing their supply.

Countries give highest priority for drinking water for humans, followed by drinking water
for animals both of these uses are sacrosanct and neither may be denied anyone for any
reason at any time. The next priority is irrigation water which flows through the canal
system. The last priority is irrigation water brought to land through modern means. A

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villager might use a pump to bring new lands into cultivation, for example, but his or her
lands would be the first to be cut off in years of low flow.

If this is the case in international law and practice, how do you see Ethiopia’s right over
Nile?

On the Nile dispute between Ethiopia and Egypt, it is difficult to rationalize Ethiopia's
not being able to develop its water resources for drinking or food crops so that Egypt can
continue to grow cotton for export. In this context, it is also troublesome to justify Israeli
swimming pools at the expense of Palestinian drinking water.

The Ethiopian civil code adheres priority of domestic use. Look at the following
provisions:

Art. 1233. - 2. Right of neighbors

A landowner who has water in excess of what he requires for domestic purposes shall
give his neighbors the water indispensable for their domestic use, where they cannot get
water elsewhere except at exaggerated costs.

How do you see the applicability of this provision in light of the current land policy
(laws) of the country?

Art. 1237. - 2. Priority of domestic use.

(1) Where the use of water for purposes of irrigation is or may be detrimental to persons
downstream who use such water for purposes other than domestic, the said persons may,
where they show the existence of vested rights to their benefit, object to the water being
used for irrigation.
(2) There shall be deemed to be vested rights on the use of water for purposes other than
domestic where apparent or notorious works or installations have been done on the
ground with a view to using the water for such purposes.

2. Allocate time, not quantity: In cases of shortage of water resource, countries usually
allocate time duration through which the water will reasonably be allocated among users.

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This method takes no consideration of the quantity that the user is going to consume. For
instance, within the time given the farmer, in case of irrigation, may use the water in
unlimited quantity. International water agreements generally allocate shared water as an
absolute quantity in volumetric terms. The Transboundary Freshwater Dispute Database
includes a collection of 150 water-related treaties investigates the 49 of those which
delineate a water allocation between nations, finding that nine simply divide water
equally while the other 40 have specific volume allocations. This latter arrangement
requires that one nation bear the full brunt of a fluctuating supply. In the unratified
Johnston arrangements between the riparian states of the Jordan River, for example,
Israel was to receive the remainder of the river's flow after each nation had received its
set allocations. Generally, it is the upper riparian which receives this burden; it is easier
to plan for delivery of a set amount to a lower riparian than it is for an upper riparian to
try and consume a fixed amount and deliver the fluctuating remainder downstream.

This principle entails that when we allocate water we should allocate by time, not
quantity. This is true whether the allocation is between villages, between lineages (large
extended family units), or between individual users. Some examples of how this works at
different levels: Generally, if two villages share a canal, each village is allocated set days
of the week four days for the upstream riparian and three for the downstream riparian, for
example.

Allocating by time allows for two benefits. The first is that it relegates micro-
management of the fluctuations of the river to the smallest possible management unit the
individual user thus spreading risk as broadly as possible. For example, when one has
rights to one hour of irrigation, the irrigator himself plans for greater and lesser supply at
the most local level. The alternative method of allocating a set volumetric amount would
concentrate risk among those users selected to bear the burden of fluctuation. In a prior
appropriation setting, for example, risk would be concentrated among the most-recent
irrigators; in an international arrangement, all of the risk would fall to the users of one
country. The second benefit of time- over volume-allocations has to do with the potential
of water markets. Economists have long advocated a degree of market structure for water
resources to encourage greater efficiency of use. Allocating by a riparian rights doctrines,

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or by a historic rights doctrine with clauses to "use or lose" one's allocated water, provide
no incentive for a user to conserve. However, if one is able to sell that portion of one's
allocation which is saved through conservation measures for a greater price than the cost
of conservation, it is argued that the "invisible hand" can then guide water to its most
efficient use.155

➢ Do you think that this rule is advantageous for the right of Ethiopia over the Nile
River?
➢ What do you think on the position of the civil code on this principle?

3. Protect downstream and minority rights: In the absence of a treaty, upstream

riparians have a hydrological advantage in developing the water. Particularly, the case is
sensitive in case of Transboundary Rivers. In the absence of political constraints to the
contrary, these upstream riparians have occasionally abused this advantage. For inistance,
India was able to divert a disproportionate amount of the Ganges River to flush the port
of Calcutta for years, for example, even to the objection of downstream Bangladesh.
Similarly, the Turkish Southeast Anatolia Project on the Euphrates and US development
of the Colorado proceeded despite the objections of downstream riparians on each
respective stream. 156

When two villages share a major canal for example, the canal itself is manifestation of an
agreement where delivery to the downstream village is explicit downstream investment in
irrigation infrastructure clearly depends on a guarantee of future deliveries. As
mentioned above, the villages divide water by time perhaps four days per week for the
upstream village, three days to the downstream village. These agreements are so
imbedded in history that deviation from them would be immediately harmful.

155
Aaron T. Wolf, Indigenous approaches to water conflict negotiations and implications for international
waters, International Negotiation: A Journal of Theory and Practice.Volume 5:2, December 2000.

156
Ibid

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Usually, the concept of equity and the protection of the rights of the weak. One story
explains this, after two brothers divided a parcel of land, a well was found on one of the
parcels. When the well-less brother insisted on a portion of the water, the two brought
their plight to a local judge who found that, while the well belonged solely to the one
brother, they should share the water for the sake of peace in the family. This tale was
used to explain that solutions are not solely about right and wrong, but also about
preserving honor, pride, and peace amongst all the disputants.

This is generally true in the international community as well. Recognition and protection
of downstream rights is present in most treaties abuse generally comes about only in the
absence of an agreement.

Do you think that water law in Ethiopia adequately protect rights of downstream?

Refer to the following provision:

Art. 1236. - Irrigation. - 1. Right of owner

(1) An owner whose land is crossed or bordered by running water may use such water for
irrigating his land.
(2) Such right may not be exercised to the detriment of those who, on the land or
downstream, use such water for domestic purposes or to water their cattle.

4. Alternative dispute resolution: Alternative Dispute Resolution (ADR) refers to "a

wide variety of consensual approaches with which parties in conflict voluntarily seek to
reach a mutually acceptable settlement".157 It generally seeks to move parties away from
zero-sum, or distributive, solutions, towards those in which all parties gain positive-sum
or integrative.

ADR distinguishes between unassisted negotiations, those between the parties of a

dispute alone, and assisted negotiations, where an individual is designated as the
facilitator, mediator, or adjudicator.

157
Ibid

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One of the greatest gaps in international water dispute resolution is the lack of just such
recognized authority. One writer describes the elaborate process by which the
International Law Commission, the United Nations legal body, has taken to design a draft
code for international waters. The 24-year effort, only recently approved by the General
Assembly, includes terms defined by politics rather than science, vague and contradictory
doctrines, and no enforcement mechanism. Even approved, international law applies
only to States, and therefore ignores many of the ethnic minorities who might claim water
rights. Furthermore, the International Court of Justice requires not only that both parties
to a dispute agree to the Court's jurisdiction, but also that they agree to the specific point
of law to be decided. Given these constraints both on legal guidelines and on the venue
for legal resolution, it is hardly surprising that water treaties are rarely explicitly informed
by general legal principles, or that the International Court of Justice has decided only a
single case regarding international water law. 158

Alternative Dispute Resolution theory describes a toolbox of "process techniques", the

methods by which a facilitator or mediator helps guide negotiations through to an
acceptable agreement. Many of these techniques, generally described in the ADR
literature as modern, Western, methods, apparently, have been used by indigenous people
for centuries if not millennia.

The application of ADR in Ethiopia will be discussed in the coming topic.

Can we use ADR for resolving water use disputes in Ethiopia?

4.7. Traditional Water Resource Management Practices in Ethiopia

4.7.1. Importance of Customary Water Law

Customary water law and administration exists all over the world and still plays an
important role in water management, particularly at the users’ level. Customary practices
are either local, regional or tribal, and they may derive from well established rules. Often

158
Ibid

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they have persisted in spite of the introduction of subsequent water institutions and legal
systems. Custom and traditional uses have often determined, and still continue to
determine, water rights and their administration. Traditional customary water rights are
generally not written nor registered, but are transmitted orally from generation to
generation.

Custom has been defined as the spontaneous expression of the formation of a right, while
the written law represents its codified form. Historically, it is also the first and exclusive
source of juridical rules; we have seen how customary law has been based on the constant
and uniform observance of rules of conduct accomplished by the members of a social
community with the conviction that it corresponds to a legal need or obligation. From
early times custom has had a decisive influence in the formulation of an objective right.
When legislation came into being, it considered custom as an important source, either
autonomous or parallel to other sources. As the out put of written legislation increased,
the state took over the power to enact legal precepts and, as a consequence, custom has
slowly been superseded by written legislation.

While written codification has lessened the importance of custom as a source of law, the
influence of custom is still felt in many fields, particularly in those relating to the use of
land and water resources at the local level.

Generally, customary water law deals with subjects such as:

(i) Customary legal status of water;
(ii)
Customary water right distribution and management;
(iii)
Customary procedures for the settlement of disputes among water users;
(iv)
Customary water administration.

Some countries have neither written water laws nor adequate water administration. These
countries have to rely on local uses and customs, which vary from region to region,
instead of written legislation and a modern water administration. One advantage of
customary and traditional law over written law is its flexibility, making adaptation to

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local needs at a particular moment easier. At the users’ level it is a system generally well
known, respected and followed. Sometimes it is the only system known by the
population; therefore, it cannot be ignored or overlooked. As an example, we may quote a
particular case in Africa. An official of the water department of the capital went to a
village in order to carry out an inspection of a water distribution system. He was badly
received by the traditional customary water administration, which ignored completely his
official function. On the other hand, customary law has the character of uncertainty since
its limits are often not well defined or determined. Furthermore, its modification is a slow
process and cannot always keep pace with modern developments in water utilization
which often necessitate profound and rapid transformations.

In the process of modernizing water resources management and before introducing or

implementing modern concepts of water resources policy, administration and legislation,
there is the need to undertake a preliminary analysis of the existing legal practices,
including the prevailing customs. This survey is necessary in order to define and
delimitate clearly the existing customary and traditional water tights.

The advantage of a written codification is that it gives the society to which it refers the
assurance of a well defined quantity and quality of water, and a clear delimitation of
individual rights.

In countries possessing written water legislation with an adequate water administration,

local usages and customs are generally left as they are only for minor water utilizations
and in cases where the codified law lacks specific provisions relating to them. Traditional
customary rights are usually recognized by subsequent water regulations on the basis of
detailed procedures. These generally include a preliminary inquiry and their subsequent
recognition in the manner prescribed by the water law. The written recording or
registration of existing customary water rights is one of the main characteristics of
practically all modern water regulations. It is obvious that these procedures for adapting
customary and traditional water rights to modern requirements necessitate an adequate
institution responsible for undertaking the administration of the regime of water rights.

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In the arid region of Northern Africa and the Middle East, where water is scarce and
precious, orally transmitted regulations are prevalent and strictly adhered to by the users
on the basis of the principles of Islamic water law, in spite of more recent water
regulations which are often less known or ignored.

The same situation prevails, particularly at the users’ level, in countries deriving their
water regulations and administrations from the Chinese system of law (China, Japan,
Korea, Vietnam). In these countries, despite more recent water administrations and
written legislations sometimes copied from the west, the traditional Chinese water
management practices still represent the known and respected water rules at the users’
level.

To some extent, the Hindu and Buddhist principles of law have influenced and are still
represented in the customary water laws of Bali, Myanmar (Burma), Kampuchea
(Cambodia), Sri Lanka, Laos, Vietnam, Thailand, and, to lesser degree, India.

In Africa South of the Sahara, customary law has great relevance and is still respected,
particularly for water use and distribution. This customary law is specifically recognized
by statute in many countries, in spite of subsequently adopted legislation of a western
type. Private ownership of water is unknown and the principle of ‘community of
interests’ exists, whereby an individual has only a right to use land and water. These
traditional and customary water administrations and institutions coexist with government
administration.

In several countries of Latin America, where large American Indian communities exist,
pre-Colombian customary and traditional water regulations and institutions deriving from
Inca, Aztec and Maya civilizations continue to govern water at the users’ level.

The difficulty of adapting modern system of water resources policy administration and
legislation to traditional and customary regulations and institution must not be

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overlooked. Since they are well known and respect at the users’ level, these customs
often become a major concern when changes are required in modern water resources
planning and management. An effective policy in this respect must be formulated in order
to bring them gradually under administrative control. As has been said, customary law
cannot be ignored when introducing new legislation. It is also necessary to set up by
legislation an appropriate administrative machinery to recognize as far as possible the
provisions of customary law.

4.7.2. The Ethiopian Case

The water resources endowment of Ethiopia exhibits tremendous spatial and temporal
variability and poses significant development and management challenges. People in the
rural areas depend on scarce water supply. Consequently, both intra- and inter-ethnic
conflicts over the use of natural resources arc common in most of rural areas in the
country. To resolve these water conflicts, the people have developed different traditional
mechanisms. For instance we can take the Traditional Dispute Resolving Mechanisms on
Water Resource Management in the Borena Zone, Oromiya Region and Enderta Woreda,
Tigray Region.

The traditional mechanism of resolving conflicts and managing natural resources (land,
water and forests) in the Borena Zone is derived from the Oromo institutions of Gadaa,
Aadaa, Seera and Safuu and the associated cultural administrative structure. The Oromo
society in general and the Borena in particular have their own indigenous water resource
management system. This includes on how to effectively utilize available water resource
and administer it. The water rights depend on the scarcity of water and the labor spent.
Surface water, such as a river or water found in natural depressions or pools after a
rainstorm, is regarded as a gift of God for all to use. Waters accumulated in a haroo
(pond) or an ella (traditional dug well) dug manually or by machine, is regarded as
property of a particular group (sub-clan or clan) with respect to the cost of maintenance.
Downpour accumulated in harros that are manually dug is subject to serious regulations.

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Generally, those who have dug improved or maintained the water resources have priority
of access.

The Boren’s ella is administered by abba Hireegaa (Father or administrator of the ella),
who has the responsibility to oversee the operation and maintenance of the ella.
Everybody who comes to water their livestock have to participate in desalting the haroo
and ella. The pastoralists Borenas are fully aware of how to utilize their scarce water
resources. During their rainy season they utilize lolaa (flood water) while they fetch
water from haroos and ellas during the dry season. They have their own program of
watering their animals during the dry season.

The rangeland of the Borenas is arranged according to the availability of seasonal water
resources. They divide their grazing land into fora (dry season) rangeland and warra (wet
season grazing land). Though people are not paying cash for the use of traditional ponds
and dug wells, they cooperate in digging and maintenance activities and abide to the
instructions of Abba Hireega. There is a clear sense of ownership and organization. Any
intervention shall take such indigenous water resource management traditions into
consideration. 159

The traditional water resource management systems in Tigray Regional Government,

Enderta Woreda is also noticeable. The main source of surface water basins in Tigray
Region are Tekeze Basin, Mereb Basin and Afar Depression.

River basin Catchments area Annual runoff Specific discharge

(km2) (BM3) (l/s/km2)
Mereb 5 700 0.26 3.2
Tekeze 89 000 7.63 3.2
Afar-Danakil 74 000 0.86 -

The Regional Bureau of Water Resource is the responsible organ for the total
administration of water resource in the region. There are also Water Resource Bureaus at
159
Getachew Abdi Zerfu, Management Aspects of Rural water Sustainability in Ethiopia, International
Institute for Infrastructural, Hydraulic and Environmental Engineering, February 2002, Pp 46

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the Woreda level. Among the Woredas the Enderat Woreda is the most important one for
our discussion. In Enderta Woreda, Tabia Hagere Selam, there are dams for irrigation
purposes and wells for drinking water purposes. Due to the shortage of water and the
communities’ reliance on the available water in the Woreda, lots of conflicts have been
recorded.

Irrigation

In Woreda Enderta there are three dams which have been constructed for irrigation
purpose, the dams are Hizat Wedi Cheber (in Tabia Dediba), Cheleko Ma’ihel (in Tabia
Cheleko) and Gereb Adamharai (in Tabia Freselam). When disputes arise
between/among upper riparian and lower riparian in using the irrigating water, the
community has established traditional institution called Abo Mai (the father of water) for
disputes on small scale irrigation; and Abo Gereb (the father of River) for disputes on
large scale irrigation.

While discussing the methods to be employed to resolve water disputes, we have stated
the method of “allocate time not quantity” as the most usual ones in different countries.
The principle entail that when we allocate water we should allocate by time, not quantity.
Similar to this principle, the Abo Mai in Tigray allocate the time (regardless of the
quantity) to the community around the dams. Riparian farmers in the community are
expected to use the water for irrigation within the time limit they are allowed to do so. If
one crosses another’s time and use the water, he will be sanctioned (fined) as a
consequence. According to the customary practice, a person will be fined by 50 Birr per a
cross. The Woreda’s social court execute the decisions of the Abo Mai. Incases where
the dispute cannot be resolved by the Abo Mai and the social court, the issue will be
brought to the attention of Woreda’s Bureau of Water Resource.160

Drinking Water

160
Mahider Teka, Head of Water Resource Regulation Department, Bureau of water resource at Enderta
Woreda, Interview on 23 July 2009.

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To tackle the problem regarding shortage of drinking water, different endeavors have
been employed by the Tigray regional government. Construction of wells and other
drinking water projects can be cited to this effect. Considering the wells in the region, the
wells in Enderta Woreda are remarkable. Due to shortage of drinking water in the Region
and lack of detailed laws for settlements of water disputes, water conflicts while using the
wells are very inevitable. The following can be considered as source of conflicts
regarding drinking water in Enderta Woreda:
• Questions related to ownership of waters in the water point are the main sources
of conflicts. Sometimes, according to Mahider,161 no water catchments has been
marked while digging the wells so people disagree on questions related to
ownership of the water,
• Individuals may not keep their turn while fetching the water,
• Water users may quarrel with the guards at the water point,

To resolve these and other related conflicts over a water point, the community around the
water point established a committee consists of six individuals; three females and three
males, who are called Drinking Water Committee. The structure of the committee is:
• Chair Person
• V/President
• Auditor
• Casher
• Property Administrator
• Water sanitation
The committee collects money from the community in monthly basis and that will be
used for the administration of the water point (like to cover guard’s salary and
constructing fences). The committee has established Water Day, which is celebrated
monthly. It is on that day that the committee gathers and listens to complaints and
conflicts. After listening to the disputants, the committee will pass on a decision basing
their customary practice. The decision then will be communicated to the Tabia. If the
161
Head of Water Resource Regulation Department, Bureau of water resource at Enderta

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conflict cannot be resolved through these organs, the case will be brought to the attention
of the Woreda’s Bureau of water Resource.

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REVIEW QUESTIONS

1. Discuss the development of Ethiopian Water Law.

2. Identify the provisions of the Civil Code on Water law which are still in
force.

3. Discuss traditional dispute resolving mechanisms on water conflicts in

your community.

4. Discuss the subjects of customary water law in detail.

5. Explain the means through which water can be privately owned according
to Ethiopian Law.

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