Annexes
Annex
7:
Administrative
and
institutional
water
framework
Framework
Reference
to
Shari’ah
or
customary
rights
Customary
&
Strong
Traditional
Rights
Shari’ah
Law
Constitution
Islamic
Shari’ah
is
the
source
of
all
legislation
(art.
3)
Civil
Code
Strong;
water
use
must
never
conflict
with
the
Shari’ah
law
(art.
1359)
Water
Law
No
mention
of
Shari’ah
law
but
does
recognize
traditional
rights
and
pre-‐existing
customs
Framework
A.
Water
ownership
right
#Legal
status
of
water
ownership
Customary
&
#Res
communis
#Private
ownership
of
contained
water
Traditional
Rights
Shari’ah
Law
#Mubah
or
res
nullius,
water
is
of
nobody.
#Free
access
for
all
people
and
community
#non-‐salable
#public-‐owned
principle
and
non-‐salability
do
not
apply
when
water
is
appropriated
for
drinking
and
domestic
purposes
#water
may
be
contained
in
wells
and
pipes
and
sold
Constitution
State
is
owner
of
all
natural
resources
to
use
for
‘common
good’
(art.
8)
Civil
Code
#Mubah
or
res
nullius,
water
is
nobody’s
#Water
is
originally
for
all
(Art.
1366)
#Water
may
not
be
sold
(originally)
#Water
may
be
appropriated,
if
needed
for
drinking
and
domestic
use.
#Water
may
be
contained
(wells,
pipers)
and
sold
#
#In
relation
to
irrigation
Water
is
entitled
to
whoever
reaches
it
first
(art.
1360)
Water
Law
#Public
property,
subject
to
administration
by
State
#No
ownership
possible
but
through
means
of
conveyance
or
acquisition
(Art.
6)
#streams
of
the
valleys
are
common
property
(art.
5)
#Private
property
subject
to
State’s
administration
(art.
6)
Framework
Conditions
for
water
ownership
Customary
&
Traditional
Rights
Shari’ah
Law
#Four
types
of
water
sources:
a.
water
enclosed
in
man-‐made
receptacles,
b.
water
in
wells,
cisterns
and
springs,
c.
water
in
small
rivers
or
stream
which
belongs
to
a
specific
community,
d.
water
in
great
rivers.
#Only
water
in
privately
owned
containers
separated
from
source
may
be
owned.
-‐The
rest
is
publically
owned
Constitution
#Private
ownership
is
not
possible
as
its
owned
by
the
State
#exploitation
and
utilization
of
water
resources
is
subject
to
permissions
and
regulations
by
the
State
Civil
Code
#Water
is
not
owned
as
private
property
except
when
transported
or
contained
in
receptacles
taking
water
from
its
source
(art.
1336)
Water
Law
#Only
use
rights
are
given
based
on
the
laws
itself
and
permits.
#The
States
distinguishes
between:
a.
right
to
use
water
in
a
aquifer
or
a
reservoir,
b.
traditional
rights
to
the
water
use,
c.
traditional
rights
to
water
of
natural
springs.
Framework
B.
Water
Diversion
and
usufruct
#Acquisition
of
diversion
right
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