The Challenge of Sustainability
- New Horizons in Environmental and Energy Law series
Chapter 14: Grundnorms Underlying Water Resources Development
THE RANGE OF APPROACHES (a) Introduction The foundations of any legal system comprise the constitutional, doctrinal, strategic and institutional arrangements within each state. While it is useful to deal with them separately, each impacts upon the others in similar fashion to the interrelation between the legislative, executive and judicial functions of a state. Let us begin by considering the fundamental principles which guide the use and development of water resources within a state. Some assume the form of constitutional instruments while others may be in statutory or doctrinal forms. What we are looking for, in essence, are the Grundnorms of the water resources governance system in question. It may be a public domain regime or one based on individual water rights. At which end of the doctrinal spectrum do we begin? The notion of the public domain and its associated rights and duties or a focus upon the rights and duties of individuals. For reasons that are both theoretical and practical, each is a counterpoint to the other. According to one view: One of the basic issues in water law is that of rights: what are the rights of the people and what are the rights of the state. The whole edifice of water law rests upon this basic issue of rights. The extent of the state’s obligations to the people and the people’s obligations to each other cannot be determined unless the legal framework of the related rights in water is clear.1 In other words, rights and obligations are...
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