Water Ownership Rights [Archives:1998/08/Law & Diplomacy]

Dr. Salah Haddash,
Yemen Times

The basic regulations of water rights in the Republic of Yemen are embodied in the Constitution, civil law and customs. These sources of the legal system contain numerous regulations which deal with the various aspects of water rights and which may be grouped into four categories as follows:

a) Water Ownership Rights: cover the legal status of water in general and the conditions for water ownership;
b) Water Diversion Rights: cover the basis for initiation of the diversion rights, changes in the rights (by selling or transferring), and the conditions for losing the rights;
c) Water Usage Rights: in terms of priorities of usage, quantity used, place of usage, and burden-sharing during times of water shortages; and
d) Water Administration: covers the water allocation system, the operation and maintenance, the organization of users, quantity and quality protection measures, conflict resolving procedures, and law enforcement procedures.

The first of the above categories is discussed in this article. The other three will be dealt with in the following issues of Yemen Times. Each of the above four categories of water rights regulations will be assessed in terms of the Sharia’ah, Constitution, civil and customary rules, while simultaneously highlighting the variations due to differences in the types of sources.

Water Ownership Rights
Water ownership rights refer to two related aspects of water rights; namely: the legal status of water, and the conditions under which water may be owned.
a) The Legal Status of Water:
Article 8 of the Constitution establishes the legal status of water as property of the State (belongs to the public domain) which oversees its utilization/exploitation in such a way that public welfare is served.

Constitution Article 8: ‘All types of natural resources and sources of energy, whether above ground, underground, in territorial waters, on the continental shelf or the exclusive economic zone, are property of the state, which assures their exploitation for the public welfare.’
Several justifications for giving the state the ownership right of natural resources may be deduced from the articles of the Constitution. For instance, article (9) points out that ‘the state’s economic policy should ensure optimum exploitation of all resources. . .’
According to Sharia’ah, water is a non-salable, publicly owned commodity to which everyone has a right. That is, it is res nullius or “Mubah” (i.e., of no body). Hence, free access to water is the right of all people and the community as a whole.
Prophet Mohammed (P) declared that: “people are partners in three (things): water, fire and grass”. The most conservative interpreters of this saying proclaim that water selling is absolutely prohibited, period. The prevailing view; however, is that water selling is prohibited unless it is appropriated, by carrying or transporting it inside a receptacle.
Article 1366 of the civil law stipulates the Islamic view point with respect to the legal status of water (as res nullius or Mubah).

Civil Article 1366: water is originally res nullius for all (Mubah)…

However; it should be emphasized that this non-salability feature of water is true only when the water is “not appropriated,” and provided that the water is needed for drinking and/or domestic use. Obviously, it is only logical to declare as illegal the selling of something which the seller doesn’t own. That is why placing the water in a privately owned container or receptacle makes it a private property which then makes it salable, or tradable in general. Also, the free nature of water access doesn’t apply to all uses. That is, water is not “mubah” for irrigation if the new user will harm the senior benefactor.
There are no customary rules which explicitly define the legal status of water. However, the fact that the Document of Seventy Rules gives a water-well owner the right to cut down wood (for well construction or for repair) from publicly or privately owned trees indirectly indicates that the water (for drinking and domestic use) is “mubah” to all.

Clearly, therefore, it appears that there is some contradiction between the constitutional point of view which considers that water isn’t freely accessible (mubah) but rather a public property whose use should be organized so as to serve public interest, and the Sharia’ah/ civil law’s point of view which would extend the res nullius status of water to groundwater aquifers. In the latter case, an aquifer is freely accessible, with no control, to anyone who owns the overlying land and can afford the cost of drilling a well.

b) Conditions for Water Ownership:
Constitutionally, water cannot be owned. Instead, it is considered a property of the state (article 8). Furthermore, article 18 of the Constitution states that:
‘the awarding of concessions related to the exploitation of natural resources and public facilities cannot be done except by law. The law defines the situations and ways to (dispose of) grant the State’s property freely (donating it), and the underwriting of its transferable property, and the rules and procedures to regulate this . . .’

Thus, a law must be issued to regulate the awarding of concessions to exploit natural resources. This means that the on-going exploitation of water resources is a kind of “concession” and that a water law must be issued to regulate this exploitation.
Further emphasis of this point is found in Article 19 of the Constitution which points out that public funds and public properties have “horma”; i.e., are inviolable. Meaning that they are not res nullius; i.e., they cannot be taken or used without any control.

Constitutional Article 19: “…Public treasury (funds) and property are inviolable….”.

According the Sharia’ah, four types of water or water sources are distinguished; namely:
a) water enclosed in “man-made” receptacles (containers or buckets);
b) water in wells, cisterns and springs;
c) water in small rivers or streams which belongs to a specific group of people; and
d) water in large rivers.

Thus, unless the water is appropriated by placing it inside a privately owned container or receptacle which sets it separate from the source, then it cannot be owned. That is, it is “mubah” to all. This rule is explicitly stated in civil law’s Article 1336:

Civil Article 1366: water is not owned as a private property except when transported or contained in receptacles, or the like… the drilling of a well to receive water is considered an appropriation by containment (and hence an ownership), provided that the water comes from a res nullius (source) and it passed in the (natural) waterway.

One explanation for the prohibition of selling of water in a stream or river, for instance, is that the buyer doesn’t know exactly what he is buying, while water in a container or under transportation is well defined.
The legal status of a well as a container makes the water inside the well a private property. This, despite the fact that the quality of water which a person gets when buying a well is not precisely known to the buyer like it would with any other container. Again, the declaration of wells as receptacles contradicts the Constitution since it makes this natural resource (groundwater) a private property, which is against its declaration as a state property. However, it should be pointed out that the Hanafi school is the only Islamic school which doesn’t recognize wells as receptacles.
Nationally recognized customs regarding water ownership are also only implicitly indicated in the Document of Seventy Rules, in rule number 58. This rule defines the protection radius around a (hand-dug) well as equaling its depth. This means that any landowner may drill a well and access the groundwater as long as he is at least 500 m away. Presently, most regions of the country recognize a 500 m radius around drilled wells.

* Ph. D. in law (France), Yemen Times Managing Editor, Assistant Professor at Sanaa University.
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