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Article Excerpt
With increasing recognition of a global crisis in water resources, it becomes relevant to ask whether existing legal systems can make serious contributions to the management of the earth's water resources. This article examines the evolution of national water law and its key features, the coevolution of international water law, and a new focus in the twenty-first century to develop global water law against a backdrop of growing pluralism in water governance. In the past, national and international water law has generally reflected prevailing social beliefs and state practice rather than shaped them. However, contemporary developments in national and international water law suggest that an emergent global law is increasingly shaping practice instead of merely reflecting it. This global law seeks proactively to influence future water management, rather than being limited by past decisions. Keywords: international law; water law; water history; water governance.
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Contemporary water governance results from complex historical evolutionary processes. While the preceding article in this special issue focuses on current global water governance, our analysis examines the evolution of water law from ancient to current times and from local to global levels. We explore first the history of water law, next contemporary features of national-level systems worldwide, and then developments in international water law, before drawing some broader conclusions regarding the emergence of global law on water.
The fundamental question we ask is whether existing legal systems are capable of making serious contributions to the management of the earth's water resources and whether movement toward a global law on water would address shortcomings in prevailing arrangements. In considering these questions, we draw on a literature analysis, experience of collaborating with water specialists in the International Law Association (ILA), and efforts to teach students from across the world about water management.
We argue that while legal systems can potentially create a legitimate framework for national and international cooperation to address common problems, water is a very special case. First, unlike other issues, governance systems on water go back 5,000 years and are highly contextual in nature. Second, water governance has been subject to international influences for centuries already. However, this history shows that external impacts on water law and governance do not automatically generate better, more relevant, and more effectively implemented policies. In recent years, too, where scientific concepts receive rapid worldwide marketing, the implementation deficit for exported water laws is often high because some of these concepts are not tailored to the contexts to which they are transferred. National water law systems are undergoing major redesigns both to incorporate the latest context-neutral insights and to confront increasing domestic water challenges. However, to become truly effective, these systems need to modify international principles to fit diverse national contexts.
Yet this diversity does not preclude the development of a global law on water. True, one could argue that international water treaties that address specific water basins (as Ines Dombrowsky discusses in her article in this issue) do not constitute a global water law regime. However, the Helsinki Rules of 1966 manifest a certain global character, having inspired the design of many interstate agreements and the United Nations Watercourses Convention of 1997 (not yet in force). A spirit of global law is also apparent in initiatives to promote a human right to water. Recent work of the ILA on water law--specifically the 2004 Berlin Rules--brings together the latest insights on water, environmental, and human rights law to show that a global legal system for water is possible in the coming decades.
Water Law in History
In many countries, local customs and religious beliefs have shaped the rules applied to water. Such local laws can be traced back more than 5,000 years. In India, for example, the Indus Valley civilization, which flourished around 2500 BC, developed water rules that were further developed in later centuries, as recorded in the Arthashastra. Similarly in ancient Egypt, rules to manage floods and to promote irrigation developed early. One of the early Chinese emperors, Yu the Great, is remembered as China's first water manager.
Water rules in prehistoric periods (when floods, irrigation, and health were key issues) evolved into systems that focused on ownership and rights. Since the Industrial Revolution, more attention has gone to ownership issues. In the late twentieth century, the focus of water regulation shifted to pollution. Today, as elaborated in Dombrowsky's article, the emphasis of water governance is shifting to integrated water resources management and sustainable development. This latest focus is seen in the Global Water Partnership since 1996, (1) the triennial World Water Forum meetings since 1997, and the 2002 World Summit on Sustainable Development. (2)
The historical evolution of rights and responsibilities in respect of water implies a certain path dependency. It is not easy to change historically acquired rights and responsibilities. Indeed, in India some court cases regarding water have continued for over 700 years, showing that people have long memories regarding their property rights!
Although water law is very much shaped by its particular context, six general features can be identified. (3) One is the cultural origins of water law, as influenced by the geographic and hydrological conditions that shaped the growth of the early civilizations along riverbanks. In general, regions that were water rich had little need to develop rules, while water-poor regions had great need to do so. This tendency is evident to this day in the different parts of the United States, where water law is less developed in the humid eastern states and more developed in the drier western states.
In the period between 500 BCE and 1600 CE, a second general feature--the religious influence--becomes more apparent. Through the spread of Hinduism, Buddhism, Judaism, Christianity, and Islam to different parts of the world, the water-related rules in each religion began to penetrate domestic legal systems. In some versions of Hindu law, for example, private ownership of water is not recognized, and water is seen as something that passes on and moves continuously. This perspective moved from the Indian subcontinent to Bali. In some versions of Islamic law, water cannot be commercialized because it is a gift of God, although limited ownership is recognized where individuals have taken specific measures to create access to water--for example, through the construction of a well. (4) Rules concerning water are very important in Islam, because the faith was born in an arid region. The word for law in Islam--sharia--means path to the watering place. In contrast, Roman law developed in a relatively water-rich area. The Roman tradition recognized three types of water ownership: private ownership, community ownership, and public ownership. (5)
In a third historical turn, from around 1000 to 1950, legal ideas regarding water spread across the world through conquest and colonization. Sometimes these processes transferred religious principles (e.g., in conquests by Islamic rulers). Sometimes they spread secular laws (e.g., through colonial conquests from Europe). Sometimes they promoted ideologically based laws (e.g., the spread of state ownership of water in the communist countries in the early twentieth century).
From the 1950s, a fourth trend--international codification--emerged. This process involved the identification and articulation of common principles for...
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