Water law (national and international) serves three key functions:
- It defines and identifies the legal rights and obligations of public and private water users tied to water use (broadly defined) and provides the prescriptive parameters for resource development and management to promote the public interest;
- It provides tools for ensuring the continuous integrity of the regime – that is, through governance structures, mechanisms for monitoring, evaluating and facilitating compliance, and dispute prevention, and settlement; and
- It allows for modifications of the existing regime, in order to be able to adapt to changing needs and circumstances.
This topic can be examined more fully under the following four headings:
- Key Elements of a Legal Framework (A2.01);
- Implementation and Enforcement Mechanisms (A2.02);
- The Role of Customary Law in IWRM (A2.03);
- Integration of Legal Frameworks with other Natural Resources Areas (A2.04);
When approaching the Tools within this section, it is important to simultaneously consider Regulation and Compliance (B1) and Coordination and Facilitation (B3) that will correspond to the legal framework within the water governance system that will be developed. Additionally, given the broad range of sectors that deal with water resources management, it is important to have a cross-sectoral overview of all laws that apply in order to avoid conflicting rules. This is sometimes a difficult exercise. The following are few key considerations and reminders on approaching legal frameworks:
- Legal frameworks (national and international) are an important and integral part of effective integrated water resources management (IWRM).
- Legal frameworks, ideally, should deal with the entire water body all a country’s or basin’s water resources, whether it is surface or ground water. Thus, legal regimes should be devised at a range of scales – from international (where the water body is shared by more than one State), regional (where regional legal regimes apply, such as, for example, within the European Union); and national (i.e. within nation States, where domestic legislation applies).
- Legal frameworks should be transparent, flexible and capable of evolving to meet changing circumstances. Water laws should recognise the access to water as a human right (UN General Assembly GA/10967, 28 July 2010) and water to be a finite and vulnerable resource, an economic good, and a natural resource having cultural, social, and environmental values.
- Law making is a political and socio-economic activity and should be concerned with both efficiency and equity. Legal frameworks thus need to take into account customary law and find ways to reconcile customary practices and statutory rights and obligations if they want to be effective and equitable.
- Implementation and enforcement mechanisms should be selected to accommodate differences in national circumstance, recognising the complexity of water management, and be aimed at facilitating compliance. Dispute avoidance and settlement mechanisms are part of the implementation/enforcement spectrum.