Elements of water law (A2.01)


The integrated management of water resources, ideally across the entire basin, requires the consideration of a range of legal issues – from international water law to domestic legislation and administrative procedures. When devising a legal framework for managing and regulating water resources (at the international or national level) it is important to recognize water to be a finite and vulnerable resource, an economic good, and a natural resource (Dublin Statement 1992).

In this regard, the framing of water-related laws should include provisions and operational mechanisms that authorize regulating multiple uses and aimed also at promoting the conservation and protection of the resource. The law must balance economic, environmental, ecosystem, social and cultural demands, and establish norms and standards for the optimal regulation and sustainable management of water resources.

To achieve some of these objectives, legal frameworks should address the following areas:

Water rights and allocation – Water is a fugitive resource. Thus, a water right is the right to use water, not to own it. Who is entitled to use what water, when, where and how are challenging issues of law that must be covered in legal frameworks under provisions dealing with water rights and allocation. At the international level, the governing rule is that each and all watercourse States that share the waters of an international watercourse have correlative duties and legal entitlements. Under international water law, it is rule of customary and widespread treaty law that each State, up or downstream of a water course, is entitled to an equitable and reasonable use of the waters of an international watercourse. Guidance on how this is to be achieved is offered under the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses, in force since 2014, and also under the 1992 Helsinki Convention. At the national level, concepts of property law have been used in the management of water resources to ensure certainty and consistency of water use, in the form of water rights. However, it is also recognized that water is different from land and water rights are different to land rights. Because the resource must be shared among multiple users, water rights are correlative rather than exclusive. Water rights at the national level are managed through water allocation regimes, with government bodies acting as trustees or regulators of water sources. While these regimes have been based upon ownership of land, or prior usage, or a customary system, modern water allocation regimes often use some form of licenses or permitting’s to establish a water right. Water allocation regimes determine levels of abstraction, and potentially create markets for the trade of water rights. Water rights and the allocation regimes have implications ranging from water for basic human needs to ecosystem protection. Transferability of such water rights through Economic Instruments (C7) such as Water Markets (C7.02) form part of the regulatory purview in jurisdictions where this is permitted and can play an important role in climate change adaptation.

Water quality – The legal framework for water quality relates to the biological and chemical composition and physical condition of raw water quality. Raw water quality is affected by human activities that can be grouped into two categories: point source and diffuse pollutions. Legislation can regulate such activities through prohibiting contaminants, the use of licenses, permits or authorizations, and zoning of protection areas (e.g. discharge zones). Licenses or permits may use waste stream discharge standards, environmental receiving water or aquifer quality standards, and technical specifications. Economic Instruments (C7) such as Pollution Charges (C7.04) are used in some countries to control raw water quality. In national law, licensing regimes, and the standards they incorporate, require sufficient regulatory resources to ensure enforcement, as well as adequate scientific evidence to formulate the standards. There is also a need to ensure integration between water management and environmental protection. Once again, it must be noted that the legal regime for managing water quality at transboundary scale differs from national water law, but is always evaluated at national levels – with national governments responsible for meeting agreed international legal regimes.

Water services – Water services in this context refer to the supply of water for domestic or industrial needs and for sanitation (see Tools B2). It includes the abstraction, treatment and distribution of water as well as the collection, treatment and disposal of sewage through a sewerage system or direct on-site sanitation. The provisions for legislating and regulating water services include the structure, ownership and control of the industry, specification of duties to supply and standards of supply, economic regulation of tariffs, customer services, and water efficiency. Economic regulation must consider both social and environmental goals. Additional aspects include governance arrangements (within the public, private and public/private partnerships sectors), both within the service providers and in relation to their regulation, to ensure transparency, accountability and participation. Water laws in this area may seek to address equity issues, i.e. through legislation that upholds human rights in this area, by mandating provisions for providing water necessary to satisfy basic human needs.

Land-use – The impact of land use on water resources is related to flooding drainage and flooding in both urban and rural areas, especially on the availability and quality of water. Land use planning and regulation is vital for safeguarding environmentally vulnerable areas, such as wetlands and riverine ecosystems. Some of the regulatory measures in place include zoning, building regulations and construction permits, nature preservation areas, specific soil protection and erosion control measures, water quality protection measures. This area takes us well beyond the remit of “water law” and into a number of related legal structures. However, it can be seen, that countries are beginning to integrate land use and water resources planning and regulation.

Protecting freshwater ecosystem resources – Water-related natural resources can be considered as functioning units which provide a variety of ecosystem services. All human activities have environmental repercussions that impact freshwater ecosystems and the value of protecting ecosystem functions and services is widely recognized. Protection requires regulation with respect to all aspects of human impacts on water-related resources in order to take into account flow regime, water quality, land use and freshwater fauna and flora. Legislation regulating these aspects includes permits, quotas, and restrictions on harvesting methods, endangered species protection, habitat protection and regulation against invasive species. These instruments are slightly beyond water law and require some integration with other legal frameworks in relevant fields.

Lessons learned

  • Water rights refer to rights in water usage, i.e. who is entitled to use what water, when, where and how. Having the right to use a resource is not to be confused with owning that resource.
  • The legal elements on water quality is interlinked with the scientific capacity of coming up with relevant and appropriate standards.
  • Law on discharge must set standards on both point source and diffuse pollutions.
  • The legal provisions on water services must discuss the structure, ownership and control of the industry, specification of duties to supply and standards of supply, economic regulation, customer services, and water efficiency.
  • Water quality and quantity will be largely affected by its surrounding lands. Legal elements should be made so that land-use does not contradict water security.
  • Water laws should have explicit sections on the protection of freshwater and its related ecosystem resources from human activities.
  • National water laws must take into account any international obligation under bilateral/multilateral agreements or conventions. Setting up transboundary organisations for the international water management (B3.01) can provide support in this regard.