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

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. This article is categorized under: Human Water > Water Governance Human Water > Rights to Water

Automated summary

This article explores the evolution of legal knowledge on private property rights in water worldwide and how these rights are embedded in existing legal constructions. It argues that while most states have placed water in the public domain, the difficulty of abolishing past statutory systems of water rights has led to successful demands by Indigenous peoples for recognition and reclamation of their water rights. States are reallocating water rights through statutory mechanisms, but this has also created confusion and affected the state's ability to adaptively govern water resources.