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Land and Water – STUDY the Rights Interface 84 FAO LEGISLATIVE Land and water – STUDY the rights interface 84 S. Hodgson for the Development Law Service FAO Legal Office FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Rome, 2004 The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. ISBN 92-5-105214-X All rights reserved. Reproduction and dissemination of material in this information product for educational or other non-commercial purposes are authorized without any prior written permission from the copyright holders provided the source is fully acknowledged. Reproduction of material in this information product for resale or other commercial purposes is prohibited without written permission of the copyright holders. Applications for such permission should be addressed to the Chief, Publishing Management Service, Information Division, FAO, Viale delle Terme di Caracalla, 00100 Rome, Italy or by e-mail to [email protected] © FAO 2004 TABLE OF CONTENTS FOREWORD ................................................................................................. v 1 INTRODUCTION ............................................................................... 1 2 WHAT ARE LAND TENURE RIGHTS AND WATER RIGHTS? .................................................................... 7 2.1 Land tenure rights ........................................................................... 8 2.2 Water rights ................................................................................... 13 3 LAND TENURE RIGHTS AND WATER RIGHTS REGIMES COMPARED .................................................................. 19 3.1 Security ........................................................................................... 19 3.1.1 Duration .......................................................................... 19 3.1.2 Enforcement against third parties ............................... 21 3.1.3 Enforcement against the state ..................................... 22 3.2 Substance ....................................................................................... 23 3.2.1 Land ownership rights .................................................. 23 3.2.2 Other land tenure rights ............................................... 25 3.2.3 Water rights .................................................................... 25 3.2.4 Conditions and security ................................................ 27 3.3 Administration .............................................................................. 28 3.3.1 Measurement and monitoring ..................................... 28 3.3.2 The active role of water rights administrations ......... 30 3.3.3 The reactive role of land tenure rights administrations .................................................... 33 3.3.4 Enforcement ................................................................... 35 3.4 Charging ......................................................................................... 36 3.4.1 Water abstraction and use charges .............................. 36 3.4.2 Charging mechanisms and land tenure rights ........... 37 3.5 International law ........................................................................... 38 3.5.1 Land tenure rights and international law ................... 38 3.5.2 Water rights regimes and international law ............... 38 3.6 Markets and tradability ................................................................. 39 3.6.1 Land tenure rights and markets ................................... 39 3.6.2 Trades and water rights ................................................. 40 3.7 Sector reform ................................................................................. 42 3.7.1 The objectives of water rights reforms ...................... 42 3.7.2 The objectives of land tenure reforms ....................... 44 3.7.3 Reform objectives compared ........................................46 3.8 Concluding observation ............................................................... 47 iv Table of contents 4 THE ‘LOST’ CONNECTION BETWEEN LAND TENURE RIGHTS AND WATER RIGHTS ............. 47 4.1 Roman law ..................................................................................... 47 4.2 The historical approach of the civil law tradition .................... 48 4.3 The historical approach of the common law tradition ........... 49 4.4 The benefits and limitations of the historical approaches ..... 51 5 THE RIGHTS INTERFACE ......................................................... 53 5.1 Formal and informal linkages ..................................................... 54 5.2 Planning the uses of land and water .......................................... 57 5.3 The interface: the role and importance of land tenure rights .......................................................................... 58 6 KEY ASPECTS OF THE RIGHTS INTERFACE .................. 62 6.1 Irrigation ......................................................................................... 62 6.1.1 Water rights and irrigation ............................................ 64 6.1.2 Land tenure rights and irrigation ................................. 69 6.1.3 The effects of non-co-ordination ................................ 71 6.2 Groundwater ................................................................................. 73 6.2.1 The risks to groundwater resources ............................ 75 6.2.2 The legal treatment of groundwater ........................... 76 6.2.3 The limitations of the regulatory response ................ 79 6.3 Rights created under customary law .......................................... 83 6.3.1 The background ............................................................. 83 6.3.2 What is meant by customary law? ............................... 84 6.3.3 What are the issues? ...................................................... 88 6.3.4 Rights and pastoralists .................................................. 90 6.3.5 Non-pastoralists ............................................................. 93 6.4 Tradable water rights .................................................................... 94 6.4.1 Background ..................................................................... 94 6.4.2 Implications for land tenure rights and water rights .............................................................. 95 6.5 Rights, poverty and gender ......................................................... 98 7 CONCLUSION AND RECOMMENDATIONS .................. 100 7.1 Customary law – the fuzzy interface ...................................... 104 7.2 Irrigation Management Transfer – moving beyond a rigid interface .............................................. 106 7.3 Groundwater – the tightly bound interface ........................... 108 7.4 Concluding Remarks ................................................................. 109 Bibliography ................................................................................................. 111 FOREWORD For rural livelihoods and for the pursuit of a wide range of development objectives, water and land are obviously closely related resources. Yet in many parts of the world, the policy, regulatory and administrative frameworks governing these resources have evolved in relative isolation from one another, reflecting sectoral concerns and traditions at the expense of a more integrated approach. The resulting lack of harmonization and coordination may have negative social, economic and environmental consequences, particularly in contexts where economic and agricultural transitions are putting natural resources under intense pressure. Despite the existence of huge literatures on both land tenure and water rights, a comparative analysis of these two subjects is underdeveloped, and the linkages are poorly understood. The result is the absence of analytical tools for assessing the potential benefits of better alignment and for identifying practical approaches to obtain synergy when implementing land and water policies. As a contribution to the development agenda of FAO and of other international and national institutions, a number of services and programmes within FAO, including, in particular, the Livelihoods Support Programme with funding provided by the United Kingdom of Great Britain and Northern Ireland's Department for International Development, have pooled their resources in a bid to jointly explore various aspects of the interface between water rights and land tenure. The first step in this process has been this publication, which is intended to synthesize and assess current learning on the interface between land tenure and water rights, to define salient issues and to propose fruitful approaches for further investigation. This study has been written by Mr S. Hodgson, working under contract and in collaboration with the concerned technical units in FAO. Ali Mekouar Paul Munro-Faure Chief Chief Development Law Service Land Tenure Service Pasquale Steduto Chief Water Resources, Development and Management Service 1 INTRODUCTION This paper is concerned with the interface between land tenure rights and water rights. Such rights relate to what are arguably the most important natural resources of the modern nation-state. Land, in the form of territory,
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