The tension between state ownership and private quasi‐property rights in water

Abstract

A critical legal issue in water governance is who owns and who holds property rights in water. Hence, we address the question: How has the state of legal knowledge on private property rights in water evolved worldwide, and how are these rights embedded in the current existing legal constructions? In answering the question, this article reviews the legal literature to: (i) understand the current state of water ownership and water property rights in the main legal systems, (ii) understand and capture how private water "property" rights are embedded in the existing legal constructions; and(iii) reflect on the application of these rights in practice. We conclude:(a) While most states have placed water in the public domain, past statutory systems of water rights are difficult to abolish, and increasingly Indigenous peoples are successfully demanding recognition of, and reclaiming their water rights. (b) States are (re)allocating water rights through statutory mechanisms, including clearly defined bundle-of-rights. And (c), while the state ostensibly controls the water, the allocation of water through historic and new statutory instruments "encroaches" on state water ownership, and has created confusion affecting the state's power to adaptively govern the water. This confusion reflects the tension between the need of states to own and govern water in the public interest, the rights of Indigenous peoples to their water, with the need of agriculture and industries to have reliable supplies of water, leading to water use rights that imply "quasi-property" rights in water.

Water law

“…Also, legal comparison between countries or regions is common (Burchi, 2019;Macpherson, 2022) as well as analysing the relationship between the legal rules of water use and water protection (Tanzi, 2020). In recent years, water use has been discussed, for example, in relation to the principles of international water law (Meshel, 2020), priority between different uses (Zheng and Spijkers, 2021), benefit-sharing (Fatch et al, 2022), property and water rights (Bosch and Gupta, 2022), human right to water (Hildering, 2020), climate change adaptation (Bigelow and Zhang, 2018), hydropower energy and dams (Meshel, 2020;Puharinen, 2022), water markets (Womble et al, 2022), circular economy (Di Marco, 2022) and water-energy-food-ecosystems nexus (Belinskij et al, 2020). Also, groundwater use has gained prominence in water law publications (Milanés-Murcia, 2019;Viljoen, 2020;Cuadrado-Quesada and Joy, 2021).…”