CENG145 Lecture 3

HISTORY OF WATER LAW
• In areas where water supply is inadequate to meet needs of

potential users, water is a commodity of considerable value.
• System of laws has been developed to determine who has the
right to water when shortages occur
• Water law can also play a major role in economic aspect of
water development since limitations on who may develop
water often control how it is developed and utilized
The most developed record of these laws is found in
Mesopotamia where vast amounts of records of
contracts and legal cases have been excavated by
archeologists.
Code of Hammurabi (1738 BCE) - Codes of laws
inscribed on steles. These laws reveal a process of
communal management, although the actual
provisions of the various codes were limited to liability
for flooding a neighbor’s fields (Kornfeld 2009: pp. 29-
33).
• The ancient Hindu Ar-thashastra (ca. 300 BCE)
(Rangarajan 1992) - are similarly limited,
providing that the water belonged to the king but
authorizing private uses on payment of a tax so
long as the private actor properly maintained the
infrastructure with severe penalties for causing
injury to another water use or water user (Cullet &
Gupta 2009: 160).
• The Law of Moses (ca. 1000 BCE) - was gradually
elaborated in the rabbinical tradition, but remained
focused on a few simple rules of rights to use water and
the duty to protect its purity (Laster et al. 2009).
• The idea of sovereignty did not play a role in this period.
• Water law developed in a highly contextual manner
reflecting the history, geography and political systems
of the countries concerned.
• As a result, today there are almost 200 different
national water law systems, each with country specific
characteristics.
HOW WATER LAW SYSTEMS SPREAD ACROSS
THE PLANET
Several processes served to spread principles of water law from their place
of origin to different parts of the world.
1. the spread of civilizations or cultures (Kornfield 2009);

2. the spread of religion (Naff 2009, Laster et al. 2009);
3. the impact of conquest and colonization, including the
spread and decline of Communism.
4. the widespread codification of legal principles in the
nineteenth century.
5. the rise of engineering and of epistemic
communities.
6. the rapidly spreading influence of
environmentalism.
7. the second wave of globalization.
• Today the almost 200 national legal regimes define
the right to use water in terms of the relationship
of the use to the water source (Gupta &
Dellapenna 2009).
• The resulting rights to use water are often
characterized as property rights, which allow a
some-what different typology of water rights.
• They might be a system of:
1. common property
2. private property
3. community or public property
THE EVOLUTION OF SUPRANATIONAL WATER
LAW
In a very real sense, the creation of supranational water law systems is as old as the earliest
recorded bodies of formal water law.
Supranational – having power or influence that transcends national boundaries or governance

• These supranational systems generally
imposed imperial rules on certain limited
questions of water management while
deferring to local customs or laws for the
day-to-day management of water
resources.
• Today, the European Union is the
leading example of supranational
water law (Canelas de Castro 2009).
• In the first phase (1973-1988), water policy and law
focused on water quality issues and standards (e.g.,
Directives on: Drinking Water; Bathing Water; and the
Quality of Fresh Waters Needing Protection or
Improvement in Order to Support Fish Life).
• In the second phase (1988-1995), the focus shifted to
emission standards (manure disposal) and water
treatment (e.g., Directives on: Cadmium;
Hexachlorocyclohexane; Nitrates; Integrated Pollution
Pre-vention and Control; and Urban Waste Water).
• In the third phase, the European
Union created a comprehensive
policy through its Water
Framework Directive 2000.
THE EVOLUTION OF INTERNATIONAL WATER
LAW
• International water agreements can be traced
back at least 800 years. A true international water
law developed only in the last two centuries.
International law in general provides the
institutional framework and rules for treaty
making, interpretation, and dispute resolution, for
countries to work together peacefully (Shaw
2008).
• Customary international law today includes three
principles.
– First, the principle of limited territorial sovereignty over
national waters that limits the rights of states and requires
them to consider the needs of other riparians (Dellapenna
2001).
– The second principle is the no-harm principle that emerges
from the Roman law maxim, sic utero tuo ut alineium non
laedes—“Do not use your property so as to injure the
property of another” (Del-lapenna 2008a).
– The third principle is the obligation to settle disputes
peacefully. Some states also claim historic rights, i.e.,
the right to use the quantity of water they have been
using (Brunnée & Toope 2002).
• Helsinki Rules on the uses of International Rivers
(ILA 1994).
• Berlin Rules on Water Resources
WATERS
• as used in the Water Code, refers to water under

the ground, water above the ground, water in the
atmosphere and the waters of the sea within the
territorial jurisdiction of the Philippines
OBJECTIVES OF THE WATER CODE IN PHILIPPINES
• To establish the basic principles and framework relating to the appropriation,

control and conservation of water resources and to achieve the optimum
development and rational utilization of these resources
• To define the extent of the rights and obligations of water users and owners
including the protection and regulation of such rights;
• To adopt a basic law regarding the ownership, appropriation,
utilization, exploitation, development, conservation and protection of water
resources and rights to land related thereto
• To identify the administrative agencies which will enforce the Water Code.
UNDERLYING PRINCIPLES
1. All waters belong to the State;
2. All waters that belong to the State cannot be subject to acquisitive prescription;
3. The State may allow the use or development of waters by administrative
concession;
4. The utilization, exploitation, development, conservation and protection of
water resources shall be subject to the control and regulation of the
government through the Natural Water Resources Council;
5. Preference in the use and development of waters shall consider current usages
and be responsive to the changing needs of the country
WATERS THAT BELONG TO THE STATE
 Rivers and their natural beds
 Continuous or intermittent waters of springs and brooks running in their
natural beds and the beds themselves
 Natural lakes and lagoons
 All other categories of surface waters such as water flowing over lands,
water from rainfall whether natural or artificial, and water from agricultural
run-off, seepage and drainage
 Atmospheric water
 Subterranean or ground waters
 Seawater
ARTICLE 6: The owner of the land where the water is
found may use the same for domestic purposes without
securing a permit, provided that such use shall be
registered, when required by the National Water
Resources Council. The Council, however, may regulate
such use when there is (1) wastage, or (2) in times of
emergency
ARTICLE 7: Subject to the provisions of the Water
Code, any person who captures or collects water by
means of cisterns, tanks or pools shall have
exclusive control over such water and the right to
dispose of the same

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HISTORY OF WATER LAW

• In areas where water supply is inadequate to meet needs of

1. the spread of civilizations or cultures (Kornfield 2009);

Supranational – having power or influence that transcends national boundaries or governance

• as used in the Water Code, refers to water under

• To establish the basic principles and framework relating to the appropriation,

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