LSP Working Paper 10 LSP Working Paper 10

Access to Natural Resources Sub-Programme


Land and water - the rights interface

Stephen Hodgson

March 2004


FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS

Livelihood Support Programme (LSP)
An inter-departmental Programe for improving support for enhancing livelihoods of the rural poor.

Table of Contents

This paper was prepared under contract with the Food and Agriculture Organization of the United Nations (FAO). The positions and opinions presented are those of the author alone, and are not intended to represent the views of FAO.

This paper was prepared for FAO’s Water Resources, Development and Management Service (AGLW), Development Law Service (LEGN), and Land Tenure Service (SDAA), together with Sub-programme 3.1 ("Access to natural resources") of the Livelihood Support Project.

The paper is also available as "FAO Legal Papers Online #36"
http://www.fao.org/legal/prs-ol/lpo36.pdf

The Livelihood Support Programme

The Livelihood Support Programme (LSP) evolved from the belief that FAO could have a greater impact on reducing poverty and food insecurity, if its wealth of talent and experience were integrated into a more flexible and demand-responsive team approach.

The LSP, which is executed by FAO with funding provided by DfID, works through teams of FAO staff members who are attracted to specific themes being worked on in a sustainable livelihoods context. These cross-departmental and cross-disciplinary teams act to integrate sustainable livelihoods principles in FAO’s work, at headquarters and in the field. These approaches build on experiences within FAO and other development agencies.

The programme is functioning as a testing ground for both team approaches and sustainable livelihoods principles.

Email: lsp@fao.org

Access to natural resources sub-programme

Access by the poor to natural resources (land, forests, water, fisheries, pastures, etc.), is essential for sustainable poverty reduction. The livelihoods of rural people without access, or with very limited access to natural resources are vulnerable because they have difficulty in obtaining food, accumulating other assets, and recuperating after natural or market shocks or misfortunes.

The main goal of this sub-programme is to build stakeholder capacity to improve poor people’s access to natural resources through the application of sustainable livelihood approaches. The sub-programme is working in the following thematic areas:

1. Sustainable livelihood approaches in the context of access to different natural resources
2. Access to natural resources and making rights real
3. Livelihoods and access to natural resources in a rapidly changing world

This paper contributes to the first thematic area by analysing the linkages between rights to land and water. These natural resources are usually administered within different sectors and under different legal frameworks yet rural livelihoods of the poor are often dependant on access to both water and land.


TABLE OF CONTENTS

1 Introduction

2 What are land tenure rights and water rights?

2.1 Land tenure rights
2.2 Water rights

3 Land tenure rights and water rights regimes compared

3.1 Security

3.1.1 Duration
3.1.2 Enforcement against third parties
3.1.3 Enforcement against the state

3.2 Substance

3.2.1 Land ownership rights
3.2.2 Other land tenure rights
3.2.3 Water rights
3.2.4 Conditions and security

3.3 Administration

3.3.1 Measurement and monitoring
3.3.2 The active role of water rights administrations
3.3.3 The reactive role of land tenure rights administrations
3.3.4 Enforcement

3.4 Charging

3.4.1 Water abstraction and use charges
3.4.2 Charging mechanisms and land tenure rights

3.5 International law

3.5.1 Land tenure rights and international law
3.5.2 Water rights regimes and international law

3.6 Markets and tradability

3.6.1 Land tenure rights and markets
3.6.2 Trades and water rights

3.7 Sector reform

3.7.1 The objectives of water rights reforms
3.7.2 The objectives of land tenure reforms
3.7.3 Reform objectives compared

3.8 Concluding observation

4 The ‘lost’ connection between land tenure rights and water rights

4.1 Roman law
4.2 The historical approach of the civil law tradition
4.3 The historical approach of the common law tradition
4.4 The benefits and limitations of the historical approaches

5 The rights interface

5.1 Formal and informal linkages
5.2 Planning the uses of land and water
5.3 The interface: the role and importance of land tenure rights

6 Key aspects of the rights interface

6.1 Irrigation

6.1.1 Water rights and irrigation
6.1.2 Land tenure rights and irrigation
6.1.3 The effects of non-co-ordination

6.2 Groundwater

6.2.1 The risks to groundwater resources
6.2.2 The legal treatment of groundwater
6.2.3 The limitations of the regulatory response

6.3 Rights created under customary law

6.3.1 The background
6.3.2 What is meant by customary law?
6.3.3 What are the issues?
6.3.4 Rights and pastoralists
6.3.5 Non-pastoralists

6.4 Tradable water rights

6.4.1 Background
6.4.2 Implications for land tenure rights and water rights

6.5 Rights, poverty and gender

7 Conclusion and recommendations

7.1 Customary law - the fuzzy interface
7.2 Irrigation Management Transfer - moving beyond a rigid interface
7.3 Groundwater - the tightly bound interface

Bibliography

Further information about the LSP

LSP Working Papers to June 2004