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Administration
Administration
National and International
Dante A. Caponera
3rd Edition, revised and updated by
Marcella Nanni
Cover Illustration:
The Nile: A Source of Life, watercolour by Alleyne Caponera
Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2019 Taylor & Francis Group, London, UK
Typeset by Apex CoVantage, LLC
All rights reserved. No part of this publication or the information contained herein may
be reproduced, stored in a retrieval system, or transmitted in any form or by any means,
electronic, mechanical, by photocopying, recording or otherwise, without written prior
permission from the publishers.
Although all care is taken to ensure integrity and the quality of this publication and the
information herein, no responsibility is assumed by the publishers nor the author for any
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or the information contained herein.
Library of Congress Cataloging-in-Publication Data
Names: Caponera, Dante Augusto, 1921–2003, author. | Nanni, Marcella, author.
Title: Principles of water law and administration : national and international /
Dante A. Caponera (1921–2003).
Description: 3rd edition / revised and updated by Marcella Nanni. |
Boca Raton : CRC Press/Balkema, [2019] | Includes bibliographical references and index.
Identifiers: LCCN 2019005622 (print) | LCCN 2019007140 (ebook) |
ISBN 9780429465703 (ebook) | ISBN 9781138610569 (hardcover : alk. paper)
Subjects: LCSH: Water—Law and legislation. | Water conservation—Law and legislation. |
Water resources development—Law and legislation.
Classification: LCC K3496 (ebook) | LCC K3496 .C37 2019 (print) |
DDC 346.04/691—dc23
LC record available at https://lccn.loc.gov/2019005622
Published by: CRC Press/Balkema
Schipholweg 107c, 2316 XC Leiden, The Netherlands
e-mail: [email protected]
www.crcpress.com – www.taylorandfrancis.com
ISBN: 978-1-138-61056-9 (Hbk)
ISBN: 978-0-429-46570-3 (eBook)
DOI: https://doi.org/10.1201/9780429465703
Contents
Acknowledgements xix
Biographical notes xxi
Preface xxiii
1 Introduction 1
1.1 Water and the society 1
1.2 The need for a water policy, legislation and administration 2
1.3 The interdisciplinarity of the subject 4
1.4 The physical context 5
1.4.1 The hydrologic cycle 5
1.4.2 Definition and analysis of precipitation 5
1.4.3 Analysis of flow 6
1.4.4 Groundwater and its behaviour 6
1.4.5 The notion of aquifer 7
1.4.6 Weather modification 8
1.4.7 Climate change 8
1.4.8 Integrated water resources management (IWRM) 9
1.5 The socio-economic context 9
1.5.1 Water demand 10
1.5.2 Water pricing 10
1.5.3 Externalities 11
1.5.4 Cost analysis 11
1.6 The purpose of the book 11
References 12
2 Earliest water regulations and management 13

2.1 The importance of water regulations throughout history 13
2.2 The difficulty of studying early water regulations 14
2.3 The development of earliest water law principles 15
2.4 Ancient Egyptian water regulations and management 16
2.4.1 Earliest dynasties (3400–2650 BC) 16
2.4.2 Later dynasties (2650–300 BC) 17
vi Contents
2.5 Ancient Mesopotamian water regulations and management 17

2.5.1 Historical development 17
2.5.2 The Hammurabi Code 18
2.5.3 Subsequent codifications 19
2.5.4 Detailed water regulations 20
2.6 Ancient Hindu water regulations and management 21
2.6.1 The Hindu legal system 21
2.6.2 The water regulations in the Code of Manu 22
2.7 Ancient Chinese water regulations and management 23
2.7.1 Introduction 23
2.7.2 Water regulations 24
2.7.3 Basic principles 25
2.8 Hebrew water regulations and management 25
2.8.2 The importance of water 25
2.8.3 Water law principles 26
2.8.4 Conclusion 27
2.9 Pre-Columbian water regulations and management 28
2.9.1 Coastal Peru (Inca) 28
2.9.2 Meso-America (Maya-Aztec) 28
2.10 Other early systems of water regulations and management 29
2.11 General conclusion 29
References 30
3 Roman and intermediate period 33

3.1 Introduction 33
3.2 Roman water law principles 34
3.2.1 The origins and Regal period (1000–500 BC) 34
3.2.2 The Republican period (509–27 BC) 35
3.2.2.1 The classification and ownership of water 36
3.2.2.2 The right to use water 37
3.2.2.3 Protection from harmful effects of water and control of
waterworks and structures 38
3.2.2.4 Water administration 38
3.2.3 The Principate (27 BC–286 AD) 39
3.2.3.3 Protection of existing water rights: the interdicta 43
3.2.4 The Absolute Monarchy or Late Empire (286–565 AD) 48
Contents vii

3.3 Intermediate water law principles in Europe (565–1812) 52
3.3.1 First period (fifth century AD–1158) 52
3.3.1.1 Introduction 52
3.3.1.2 Principles of water law under Roman-Barbaric rule 54
3.3.1.3 The feudal system 54
3.3.1.4 Water law principles under the feudal system 55
3.3.2 Second period (1158–1812) 56
3.3.2.1 Introduction 56
3.4 Intermediate water law principles in Ibero-America 59
3.4.1 Early legal principles 59
3.4.2 Water regulations 59
References 60
4 Definition and sources of water law 61

4.1 Introduction 61
4.2 The content and concept of water law 61
4.3 The relationship between water law and other legal disciplines 63
4.3.1 Constitutional law 63
4.3.2 Administrative law 63
4.3.3 Civil law 63
4.3.4 Criminal or penal law 63
4.3.5 Agrarian law 63
4.3.6 Mining law 64
4.3.7 Natural resources and/or environmental law 64
4.3.8 Public health law 64
4.3.9 Other legal disciplines 64
4.4 Sources of water law 64
4.5 Legislation in general 65
4.6 International and interstate agreements 66
4.7 Customary law 67
4.8 Case law and arbitral awards 68
4.9 Doctrine, or scholarly opinion 69
4.10 Common law 70
4.11 Conclusion 71
References 71
5 Existing systems 73
5.1 Introduction 73
viii Contents
5.2 Original Roman water law principles and their influence in

subsequent legislation 74
5.3 Customary water law: its importance 74
5.4 Water law principles in the Islamic system 76
5.4.2 The origin and sources of Islamic water law 77
5.4.3 Water ownership and the right of use 78
5.4.4 Groundwater law 79
5.4.5 The process of codification and the Ottoman Civil Code ‘Mejelle’ 80
5.4.5.1 The Ottoman Civil Code ‘Mejelle’ 80
5.4.5.2 The legal status of water 81
5.4.5.4 Maintenance of waterways 81
5.4.5.5 The harim 82
5.4.6 Islamic water administration 82
5.4.6.1 Customary water administration 82
5.4.6.2 Recent developments in the administration of water 84
5.4.6.3 Government action in Moslem countries 84
5.5 Water law principles in civil law countries 85
5.5.2 The legal status of water resources 87
5.5.3 The right to use water 87
5.5.4 Water quality and pollution control 88
5.5.5 Water administration 89
5.5.6 Conclusion 90
5.6 Water law principles in common law countries 91
5.6.5 Recent developments of the common law system 95
5.7 Water law principles in the former Soviet system 97
5.7.1 Fundamentals of Soviet water law 97
5.7.2 The legal status of water 98
5.7.4 Order of priorities 99
5.7.5 Harmful effects of water 99
5.7.7 Enforcement 100
5.7.8 Centralized inventory and planning 101
5.7.10 Evolution and trends 101
Contents ix
5.8 Water law principles in the Hindu subak system in Bali 103
5.8.1 Legal-historical background 103
5.8.2 Definition and origin 104
5.8.3 Organization 105
5.8.8 The water distribution system 107
5.8.9 Financial aspects 108
5.8.10 Water law implementation 108
5.8.11 The settlement of disputes 108
5.8.12 The statutory subak 108
5.8.13 Conclusion 109
References 109
6 Development by region 111

6.1 Africa 111
6.1.2 Customary law 112
6.1.3 Countries following principles of the civil law system 113
6.1.4 Countries following principles of the common law system 115
6.1.5 Countries following principles of other systems 116
6.1.6 Countries influenced by principles of the Islamic water law system 118
6.2 Asia and the Pacific 118
6.2.2 Countries following principles of the civil law system 119
6.2.3 Countries following principles of the common law system 120
6.2.3.1 Australia 120
6.2.3.2 Bangladesh 121
6.2.3.3 India 122
6.2.3.4 Sri Lanka (Ceylon) 123
6.2.3.5 Other countries 123
6.2.4 Countries following principles of other systems 124
6.2.4.1 People’s Republic of China 124
6.2.4.2 Japan 125
6.2.4.3 The Philippines 125
6.2.4.4 Other countries 126
6.3 Central and South America 129
6.3.2 Central and South American water law principles 130
6.3.2.1 Latin American countries 130
6.3.2.2 Other countries of Central and South America 132
x Contents

6.3.6 Legislation on water use, quality and pollution control 134
6.4 Europe 137
6.4.2 The legal status and the right to use water 138
6.4.4 Institutional framework 141
6.4.4.1 Federal states in Europe 142
6.4.4.2 Unitary states in Europe 144
6.4.4.3 States undergoing a process of decentralization 146
6.4.4.4 Basin level 147
6.4.5 The process of transposition of the European legal framework 149
6.4.5.1 Background 149
6.4.5.2 Developments 152
6.5 United States of America 154
6.5.2 Federal water law principles 155
6.5.3 State water law principles 158
6.5.3.1 Riparian water law 159
6.5.3.2 The appropriation doctrine 160
6.5.3.3 Groundwater management 162
6.5.3.4 The conjunctive use of surface and underground water 164
References 165
7 Possible contents of and reasons for water law 167

7.1 Introduction 167
7.2 The contribution of the lawyer 168
7.3 General considerations 168
7.4 Water policy 170
7.5 Collection and use of data and information 171
7.6 Water resources planning 172
7.7 Ownership or other juridical status of water 173
7.7.1 Public waters 173
7.7.2 Private waters 174
7.7.3 Res nullius 174
7.7.4 Common waters: community or tribal waters 174
7.8 The right to use water 175
7.8.1 Basic concepts 175
Contents xi
7.8.2 Legal régimes governing the right to use water freely or by virtue
of a simple declaration/registration 176
7.8.2.1 The free use of water 176
7.8.2.2 Declaration/registration 176
7.8.3 The permit system 176
7.8.3.1 Applicability 177
7.8.3.2 Different types of permit 177
7.8.3.3 The procedure for granting permits 178
7.8.4 Characteristics of permits and concessions 179
7.8.4.1 The difference between permits and concessions 179
7.8.4.2 Common characteristics of permits and concessions 179
7.8.5 Recognition or reallocation of pre-existing water rights 180
7.8.5.1 Customary and riparian rights 181
7.8.5.2 Rights under the appropriation doctrine 181
7.8.5.3 Powers of the administration 181
7.8.5.4 The reallocation of water 182
7.8.6 Water markets 182
7.9 Limitations to the right to use 183
7.10 Priorities 184
7.11 Beneficial uses 185
7.11.1 Water and other natural resources 185
7.11.2 Domestic and municipal uses 185
7.11.3 Agricultural uses 186
7.11.4 Industrial uses 186
7.11.5 Hydropower production 187
7.11.6 Setting of minimum flow requirements 187
7.11.7 Other public uses 187
7.12 The right to water 188
7.13 Harmful effects of water 190
7.14 Water quality and pollution control 191
7.14.1 Waste and misuse of water 191
7.14.2 Recycling, reuse of water and recharging of aquifers 192
7.14.3 Wastewater and effluent control 192
7.14.4 Health preservation 192
7.14.5 Pollution control 192
7.15 Environment protection: the ‘greening’ of water law 195
7.16 Underground waters 197
7.16.1 General considerations 197
7.16.2 Exploration or prospecting permits 198
7.16.3 Drillers’ licences or permits 199
7.16.4 Groundwater found incidentally 199
7.16.5 Metering 199
xii Contents
7.16.6 Groundwater pollution control 199

7.16.7 Reservation of good quality groundwater for drinking purposes 200
7.16.8 Zoning mechanisms 201
7.17 Control and protection of waterworks and structures 201
7.18 Protected zones/areas 202
7.19 Legislation on financial aspects 203
7.20 Implementation of water legislation 204
7.20.1 General remarks 204
7.20.2 Judicial and administrative control over water ownership, use and
distribution 205
7.20.3 Protection of individual rights and water rights 205
7.20.4 Administrative procedures for claims against the water
administration 205
7.20.5 Water tribunals or courts 206
7.20.6 Penalties and sanctions 206
7.21 The interconnection between water law and other legal enactments
relevant to water law 207
7.22 Customary water law and institutions 207
7.23 Water users’ associations 208
7.24 National water resources administration 208
References 208
8 Water resources planning and water law 211

8.1 The rationale of water resources planning 211
8.2 Objectives of a water resources plan 213
8.3 Types and characteristics of plans 214
8.4 The relationship between water resources planning and economic and
social sectors 216
8.5 Methods for planning processes 217
8.6 Relevant administrative and institutional issues 217
8.6.1 Administrative and institutional issues 218
8.6.2 Other factors contributing to a better administration and
planning of water resources 219
8.7 Water resources planning under the European Water Framework Directive 220
References 221
9 National water resources administration 223

9.2 Different types of water resources administration 223
9.2.1 Institutions according to their powers 223
9.2.2 Institutions according to their functions 224
9.2.3 Institutions according to uses 225
9.2.4 Institutions according to their territorial level of jurisdiction 225
Contents xiii
9.2.5 Institutions according to their legal régime 227

9.2.6 Special water development agencies 227
9.2.7 Water users’ associations 228
9.3 Major issues of water resources administration 229
9.3.1 The need for coordination 229
9.3.2 The question of centralization, decentralization and
deconcentration of the water administration 230
9.3.3 The water rights administration 231
9.3.4 The need for a water resources ‘regulatory’ institution 232
9.3.4.1 Definitions 232
9.3.4.2 Major objectives and functions of a regulatory institution 232
9.3.5 The role of water law in institution building 234
9.4 A possible institutional solution 234
9.4.1 Institutions at the national level 234
9.4.1.1 A national water resources council 235
9.4.1.2 A national water committee or commission 235
9.4.1.3 A central water administration 235
9.4.2 Institutions at the regional, basin, sub-basin and local levels 236
9.4.2.1 At the regional level 236
9.4.2.2 At the basin or sub-basin level 236
9.4.2.3 At the aquifer level 237
9.4.2.4 At the local level 237
9.4.2.5 At the international level 237
References 239
10 International water resources law in general 241

10.2 The concept of ‘international water resources’ and other definitions 242
10.2.1 A historical review 242
10.2.2 The drainage basin concept 244
10.2.3 The expression ‘international water resources’ 245
10.3 The sources of international water resources law 246
10.3.2 International conventions 246
10.3.2.1 General conventions 247
10.3.2.2 Particular conventions 249
10.3.3 International customary water law 250
10.3.4 The codification of international water resources law 251
10.3.5 The law-making activity of the European Union 251
10.3.6 General principles of international water resources law 253
10.3.7 Resolutions of intergovernmental organizations 254
10.3.8 Judicial decisions 255
xiv Contents
10.3.8.1 Decisions of international courts 255

10.3.8.2 Arbitral awards 257
10.3.8.3 Decisions of national tribunals 258
10.3.9 Contributions of publicists and international
non-governmental organizations 259
10.3.9.1 The work of the Institute of International Law 259
10.3.9.2 The work of the International Law Association 260
10.3.9.3 The work of the Inter-American Bar Association 261
10.3.9.4 The work of the Asian-African Legal Consultative
Committee 262
10.3.9.5 The work of the Pan American Union 262
10.3.9.6 The work of the Council of Europe 262
10.3.9.7 The work of the International Association for
Water Law 263
References 263
11 International water resources law: major issues 265

11.1 Boundary demarcation 265
11.1.2 The boundary on a successive river 265
11.1.3 The boundary on a contiguous river 266
11.1.3.1 The boundary at the banks (river res nullius) 266
11.1.3.2 The boundary at the banks (river res communis) 266
11.1.3.3 The boundary at one of the banks 266
11.1.3.4 The boundary at the median line 267
11.1.3.5 The boundary at the thalweg 267
11.1.4 Natural modifications of the boundary on a contiguous river 268
11.1.5 The boundary on a bridge over a contiguous river 268
11.2 Navigation 269
11.2.1 Origins 269
11.2.2 The internationalization of navigation 269
11.2.3 The Congress of Vienna (1815) 270
11.2.4 The Treaty of Paris (1856): the régime of the Danube 272
11.2.5 The navigation régime after 1856 273
11.2.6 The Act of Berlin (1885) 273
11.2.7 The régime after World War I 274
11.2.8 The régime established at Barcelona (1921) 274
11.2.8.1 The administration of international waterways 275
11.2.8.2 Evaluation 276
11.2.9 Developments after Barcelona 276
11.2.10 The régime after World War II 277
Contents xv
11.3 Non-navigational uses of water 278

11.3.2 The theory of absolute territorial sovereignty 278
11.3.3 The theory of absolute territorial integrity 279
11.3.4 The theory of limited territorial sovereignty and integrity 279
11.3.5 The shared natural resources concept 280
11.3.6 Equitable and reasonable utilization and participation 280
11.3.7 Obligation not to cause significant harm 281
11.3.8 Floating 282
11.3.9 Production of energy and industrial uses 282
11.3.10 Procedural rules 284
11.3.11 Conclusions 286
11.4 Harmful effects of water 287
11.4.1 Definition 287
11.4.2 Evolution 287
11.4.3 The emerging rule 289
11.5 Quality control of water 290
11.6 Armed conflict 297
11.6.2 Precedents 298
11.7 Environmental aspects 299
11.7.1 Definitions 299
11.8 The right to water in international law 306
11.8.1 Definitions 306
References 309
12 Developments in the law of transboundar y aquifers 311

12.2 Sources and evolution of international groundwater law 312
12.3 The experience of federal countries 320
12.4 The codification of the law of transboundary aquifers 320
12.5 Institutional issues 323
12.6 The emerging rules 325
12.7 Conclusion 325
References 326
xvi Contents
13 International water resources administration 329

13.2 Institutional developments 329
13.2.1 Institutional developments in Europe 329
13.2.1.1 The Rhine Commissions 331
13.2.1.2 The Danube Commissions 332
13.2.1.3 Other commissions 332
13.2.2 Institutional developments in the Americas 333
13.2.2.1 The International Joint Commission between the
USA and Canada 333
13.2.2.2 The International Boundary and Water Commission
between USA and Mexico 334
13.2.2.3 The Plata River Basin 336
13.2.3 Institutional developments in Africa 337
13.2.3.1 The Nile Commission 337
13.2.3.2 Post-1960’s basin institutions 338
13.2.3.3 The Liptako-Gourma Authority 340
13.2.3.4 Institutional framework for cooperation in
Southern Africa 340
13.2.3.5 The contribution of regional economic integration
organizations 341
13.2.4 Institutional developments in Asia 342
13.2.4.1 The Mekong River Commission 342
13.2.4.2 The Indus Commission 343
13.2.4.3 Joint commissions between Nepal and India 344
13.2.4.4 The India-Bangladesh Joint Commission 344
13.2.4.5 Institutional arrangements for the Aral Sea basin 344
13.2.4.6 The Helmand River Commission 345
13.3 Evaluation of existing arrangements 346
13.4 Objectives and purposes 348
13.4.1 Technical responsibilities 348
13.4.2 Economic and financial responsibilities 349
13.4.3 Legal and administrative responsibilities 350
13.4.4 Possible options 350
13.5 Duration, constitution and decision-making procedures 350
13.5.1 Duration 350
13.5.2 Constitution 350
13.5.3 Procedures for decision making 351
13.5.4 Legal status 351
13.6 Territorial competence 351
13.7 Functions and powers 353
Contents xvii
13.8 Form 353

13.9 Major institutional requirements for rational international water
resources administration 354
13.10 Economic and financial requirements 355
13.11 Prevention and settlement of disputes 355
13.12 Conclusion 356
References 356
Index 357
Acknowledgements
Acknowledgements to the second and the present editions

As the redactor of the second and the present editions of the book, Principles of Water Law
and Administration, National and International, I wish to acknowledge the support and edi-
torial advice so graciously offered to me by Mrs Alleyne Caponera for the enhancement of
the text.
Marcella Nanni
Rome, 2018
Acknowledgements to the first edition

Before going to press, it is my pleasant duty to express a few words of acknowledgement and
gratitude to Prof. ir W.A. Segeren, Director of the International Institute for Hydraulic and
Environmental Engineering (IHE) of Delft, where I have been teaching for many years, and
particularly to Prof. Mr. J. Wessel, Director of the Centre for Comparative Studies on River
Basin Administration (RBA Centre), who provided facilities for me to concentrate on the
finishing of the text and without whose personal interest and encouragement this publication
might not have seen the light.
The IHE was established in 1957 to offer international post-graduate education princi-
pally to developing countries in civil and environmental engineering. The RBA was created
in June 1989 at the Delft University of Technology as a research centre in the field of both
theoretical and practical studies on river basin administration. Both of these institutions also
deal with legal and administrative aspects of water resources management, hence their inter-
est in the publication of this book.
Dante A. Caponera
Rome, 1992
Biographical notes
The Author: Dante A. Caponera (1921–2003)

Dante A. Caponera began his career in the field of water law and administration in the
1950’s, undertaking missions for the Food and Agriculture Organization of the United
Nations and other UN agencies. He became Chief of the FAO Legislation Branch, which,
thanks to his efforts, is now a provider of legal assistance to developing countries, not only
in water law but also in all of the fields in which FAO is involved. He was the initiator of the
FAO Legislative Studies series.
As a consultant, Dr. Caponera assisted governments and international basin institutions
in the drafting of water legislation and international water agreements, leading to water
codes embodying principles such as those of river basin management and users’ participa-
tion and improved river basin management institutions. He used a methodological approach
which he developed and which is now known world-wide. A firm believer in the importance
of law in the management of water resources, he also promoted training in the field of water
law and administration as a vehicle for dialogue and cooperation leading to improved legal
and institutional frameworks.
A prolific writer, Dr. Caponera also published a collection of selected writings in 2003.
The Reviser: Marcella Nanni

Marcella Nanni is a recognized international expert in water law and administration and
related disciplines. She has provided consultancies to a number of governments, river basin
institutions and regional bodies for projects financed by international organizations such as
FAO, the European Union, the World Bank, the Asian Development Bank and by bilateral
donors. This advice has covered the drafting of water policies, legislation and international
agreements, the development of proposals for the approximation of legislation of EU
accession countries to the EU water acquis, the restructuring of water resources management
institutions, water law implementation requirements and the formulation and conduct of
capacity-building programmes.
Dr. Nanni is a member of the board of directors of the International Association for
Water Law/Asociación Internacional de Derecho de Aguas (AIDA) and is the editor of the
association’s newsletter, ‘Aquaforum.’ She collaborated with Dr. Caponera for the research
on the first edition of this book and produced the second revised edition of the same.
Preface
Over time, water law and associated institutional mechanisms have evolved in response to
specific challenges. The earliest water regulations catered to the need to construct, oper-
ate and maintain irrigation networks, facilitate water distribution and organize the defence
against floods. With socio-economic development, population growth, urbanization and
technological progress, the need arose for more elaborate legal and institutional frameworks.
Initially, during the modern era, water legislation was mainly use-oriented; that is, it dealt
with specific water uses or with the harmful effects of water. Subsequently, growing indus-
trialization generated the need to introduce rules to prevent and fight against water pollution.
More recently, the concern for the state of the environment, coupled with the recognition of
the interdependence of all its elements and of the relationship between a healthy environ-
ment and the life and well-being of people, have brought about the ‘greening’ of water law,
i.e., the integration into it of environmental considerations with a view to finding a balance
between water demands and environmental sustainability.
Because of the challenges imposed by the overexploitation and increasing deteriora-
tion of water resources, climate change, environmental and health issues and technological
progress, water laws and institutions have reached an unprecedented level of complexity.
However, since more challenges lay ahead, they should not be considered as static tools that,
once in place, function effectively under all circumstances. Rather, they follow an evolution-
ary process as required by changing needs. Accordingly, a number of developments have
taken place since the second edition of this book in 2007, and further developments are to be
expected in the years to come.
Already in its first edition, the book emphasized that most countries, including those
following the civil law tradition according to which the landowner owns the water located
on or under his land, have shifted to public ownership of all water resources, whether surface
or underground. Thus, the state as the owner or trustee of these resources has the authority
to allocate or reallocate them by issuing permits or concessions. The first edition further
explained that the power of the state to grant permits has expanded to all the activities that
may cause water pollution. In parallel with this, it called attention to the need to consider
water not in isolation from other natural resources and the broader environmental context.
The concept of integrated water resources management (IWRM), which promotes the
coordinated development and management of water, land and other natural resources within
hydrological and hydrogeological units, i.e., by river basin or aquifer, has now gained the
support of countries worldwide, as is highlighted in this edition of the book. Legislation
recently enacted or to be enacted prescribes that water resources are to be managed by river
basin and calls for the development of river basin plans setting clear objectives in terms
xxiv Preface
of water quantity and quality, and having binding effects on governmental decisions. Par-
ticularly in European countries, integration tends to be sought between river basin plans
and flood management plans. Water legislation further provides for the establishment of
institutional mechanisms for basin planning and management and for the participation of
stakeholders in the planning process.
Environmental considerations are increasingly being absorbed into water legislation.
Among other things, this translates into the requirement to assess the impact of water resources
development on the environment, either through provisions embedded in the relevant texts,
or, by reference, to environmental protection legislation. A further ‘green’ element of contem-
porary water legislation is the ecosystem approach, which considers the relationship between
water and related resources and promotes their conservation and sustainable use in view of the
benefits that society may derive from them. Thus, the setting of minimum flow requirements
to preserve aquatic ecosystems and protect living resources is gradually becoming a feature of
water legislation, alongside a high rank being assigned to the environment in the order of pri-
orities among competing water uses. Some countries have gone as far as recognizing juridical
personality and autonomous rights to rivers, and even to nature. These new elements, which
were not present in the second edition of the book, are illustrated in this edition, which shows
that water law is expected to become ‘greener and greener’.
Finally, water legislation normally accords top priority to the satisfaction of drinking
and domestic water needs. However, recent enactments go further, by providing for the res-
ervation of water in sufficient amounts and of a suitable quality for the satisfaction of these
needs. A human right to water is now recognized in a number of national constitutions and
in an increasing number of water statutes, particularly in developing countries. This new
development is also considered in this edition of the book.
This book also shows that those which once were challenges for only industrialized
countries are now spreading to the developing world, so that the water legislation recently
enacted in a number of developing countries presents features common to that of industri-
alized countries. Thus, this legislation supports IWRM within a river basin context, seeks
to provide the flexibility needed to adapt to the effects of climate change and, to varying
degrees, addresses environmental issues.
International water law has also undergone steady development since the second edi-
tion of this book, which placed emphasis on the progressive consolidation, as a result of
consistent state practice, of the principle of equitable and reasonable utilization, of the obli-
gation not to cause significant harm and of the general obligation of states to cooperate.
Together with procedural rules concerning the exchange of information and the notification
of planned measures with possible adverse effects, these basic tenets were enshrined in the
UN Watercourses Convention, which was adopted in 1997 and entered into force in 2014.
They may be considered as the pillars of international customary water law and are now
being incorporated into a growing number of international water agreements worldwide.
Both the convention and existing agreements consider groundwater only in so far as it is
connected to surface water. Only few agreements deal specifically with groundwater, although
their number might increase in the near future. The most recent of these agreements was con-
cluded between Jordan and Saudi Arabia in 2015 and concerns the Al-Sag/Al-Disi Layer. In
2008, the International Law Commission (ILC) of the United Nations adopted the Draft Arti-
cles on the Law of Transboundary Aquifers, of which the UN General Assembly took note in
the same year, at its sixty-third session. Although not legally binding as such, the Draft Articles
Preface xxv
represent an authoritative statement of the law of shared groundwater resources, since they
reflect prevailing international customary water law as applicable to transboundary aquifers.
Therefore, when seeking to reach agreement on the management of their transboundary aqui-
fers, countries are now inclined to take them into consideration, as evidenced by the reference
made to them in the preambles to the Guarani Aquifer Agreement (2010) and to the Memoran-
dum of Understanding for the Iullemeden, Taoudeni/Tanezrouft Aquifer System (2014). These
are new developments with respect to the second edition of this book, but the law of trans-
boundary aquifers is still going through a process of evolution and the question as to whether
the Draft Articles should be turned into a convention remains open.
Like domestic water law, international water law is undergoing a ‘greening’ process
which translates into the obligation to prevent, reduce and control pollution and, in general,
to prevent transboundary harm, and into the obligation to conduct environmental impact
assessments when planned developments are likely to cause significant transboundary harm.
These obligations may now be considered as part of international customary water law, as
evidenced by consistent state practice and case law. Another emerging principle which is
being absorbed into an increasing number of treaties refers to the duty to protect and pre-
serve ecosystems, including through the release of minimum ecological flows from dams.
Given the growing concern for the environment, there is little doubt that, in the future, envi-
ronmental law elements will be integrated into international water law to a greater extent
than they were before.
Until recently international water law was not concerned with the right to water. This
right was to be derived from international legal instruments dealing with human rights.
Although mention of it was made on a number of occasions, such as at the 1977 UN Water
Conference of Mar del Plata and other international discussion fora, it is with General Com-
ment No. 15 of 2002, interpreting Articles 11 and 12 of the 1966 International Covenant on
Economic, Social and Cultural Rights, that the right to water was brought to the attention of
the international community and the debate was ignited as to its existence as a self-standing
human right. The right to water was explicitly recognized by the UN General Assembly and
by the Human Rights Council in 2010, but many countries abstained from voting the rele-
vant resolutions. This, together with the very few contemporary water agreements acknowl-
edging it as a self-standing human right, leads to the conclusion that the debate is still open.
This new development was not considered in the second edition of this book.
It is worth noting that although international water law does not require the establish-
ment of institutional mechanisms for the management of transboundary water resources,
countries now recognize that these mechanisms can play a crucial role for the definition of
what is equitable and reasonable, the prevention of adverse transboundary impacts and the
prevention of water disputes. Thus, a vast majority of contemporary water treaties require
the setting-up of international institutional mechanisms.
To conclude, water law is in constant evolution. As law in general, it is influenced by
physical, social, economic, climatic, political, religious and other factors. Since circum-
stances change over time, it is subject to continuous adjustments; therefore it needs to be
conceived as a dynamic and flexible tool capable of addressing new challenges when they
arise.
Marcella Nanni
Rome, December 2018
xxvi Preface
Preface to the second edition

This second edition of ‘Principles of Water Law and Administration, National and Interna-
tional,’ aims at highlighting the developments which have taken place in the field of water
law and administration since the book was first published in 1992, as well as present trends.
As it was conceived in 1992, the book remains unique, in that it deals with a wide range of
legal and institutional issues and discusses them without losing sight of the context in which
these issues arise. Ample coverage is provided in the first chapters to the sources of water
law and to the historical evolution of the existing legal systems, as Dante A. Caponera, the
author and an eminent scholar, firmly believed that a legal system may not be fully under-
stood if due attention is not paid to its roots. In turn, he felt that it is impossible to develop a
new law without taking into account the context in which it will have to be implemented and
that, besides the legal system, non-legal aspects, including geographic, physical, climatic
and socio-economic elements, should be carefully considered.
These considerations also apply to the development of legal and institutional frame-
works for the management of international river basins and aquifers, but in this case the situ-
ation may be more complex because the basin and/or aquifer states concerned may present
differences as to their geography, hydrology (or hydrogeology), climate and socio-economic
conditions. Traditions and religion also play an important role, as they may influence inter-
national relations considerably.
It was my privilege to know Dante A. Caponera, to cooperate with him in a number of
undertakings relevant to water law and administration and to participate in the development
of some of the ideas which were incorporated in the first edition of the book. Therefore, I
feel a few words deserve to be written about the spirit which was – and is - behind this book.
Dante A. Caponera was of the opinion that there is a need for people acquainted with
principles of water law and administration and able to advise governments and international
organizations and institutions on how to handle the legal issues arising in connection with
water resources management. Mainly for this reason he decided to write a book on this com-
plex subject, through which he could share his vast experience with others, whether they be
lawyers or non-lawyers.
Water law is a multidisciplinary subject, but it is difficult for the lawyer, who sees water
as a liquid flowing from the tap, to fit it into a non-legal – hydrologic, engineering, socio-
economic – context. On the other hand, the engineer is likely to address water management
issues through physical solutions – dams, hydropower plants, canals – without taking into
consideration the individual rights and legitimate interests at stake. These considerations
were a major stimulus in the process of preparation of the book and resulted in a text that
was, and still is, palatable to all, including water resources policy makers, planners and water
administrators. After a few years in circulation, the book became a ‘bible’ for many govern-
ment officials at various levels, to be resorted to in order to arrive at informed decisions, and
has continued to play this role. Indeed, no other text is more comprehensive than ‘Principles
of Water Law and Administration.’
Given its clear language and the fact that it refrains from using a strictly ‘legalese’
jargon when dwelling on the various topics, the book may also be considered as a manual
of easy access to anyone enrolling in a course on water law and administration. At present,
courses of this kind and seminars on the subject are becoming more and more frequent, as
the demand for an enhanced knowledge of the legal issues involved in the management of
Preface xxvii
water resources is growing on a par with the threats to which these resources are increasingly
exposed.
This second edition maintains the same logic and the spirit of the first one, although
acknowledging the developments that have occurred since 1992. In particular, it covers
progress in the codification of international water law, including the work of the Interna-
tional Law Commission on a possible new groundwater convention, and legal developments
in the European Union, which are also relevant for countries applying for membership. Fur-
thermore, it analyzes the new laws and institutions of the countries of the former Soviet
Union, keeping in mind that the situation is still fluid and subject to change. In addition, it
strives to update information relating to national water laws, institutional developments and
legal and institutional arrangements for international river and lake basin management and
transboundary aquifers in Africa, Asia and Latin America.
Dante A. Caponera passed away in 2003. This edition of the book intends to be a trib-
ute to him and to the experience that he accumulated during his vast and successful career,
which he left behind for the benefit of future generations of water lawyers and non-lawyers
with a stake in water law and administration.
Marcella Nanni
Rome, January 2007
Chapter 1
Introduction
1.1 Water and the society

The importance of water in all aspects of human activities is well known; one basic condition
for human, animal and plant survival is the availability of water. It is through the combina-
tion of water with one or more basic natural resources that other ‘secondary’ resources are
made available. Water, combined with land, provides plants and forests, which, in turn, are
indispensable to sustain human and animal life. Water is also an important element for social
stability, and the economic development of any community, country or civilization depends
largely on its availability.
Water resources are not evenly distributed, so that while in some areas of the world there
may be excess water, in other areas there may be a shortage. On the other hand, the amount of
water available in a state, area or basin is invariable, while water demands increase continually.
Water demands for drinking purposes augment at a faster pace than population growth,
since higher standards of living require increased amounts of water for food production and
other water-consuming activities, such as the watering of lawns and gardens, and for hydro-
power generation and recreational purposes (golf courses, swimming pools, etc.).
In all countries, agricultural and industrial development requires the construction of
hydraulic works, such as irrigation systems, reservoirs and tanks. Industries, particularly
those based on chemical processes such as oil refineries, the manufacturers of synthetic
materials and paper mills, utilize considerable quantities of water, in spite of water-saving
technologies. Air-conditioning and air-cooling plants also use considerable amounts of
water. Thus, the availability of water is both a prerequisite of and the limiting factor to the
economic development of a country.
Human activities involving the use of water have direct or indirect effects on aquatic
ecosystems and on the environment, which may lead to a loss of biodiversity. Changes in the
environment caused by overexploitation of natural resources such as land, water and forests
in turn contribute to further destruction of land and the spread of deserts. The indiscriminate
dumping of urban and industrial wastes turns rivers into sewage canals, with the result that at
a certain point the water is lost for further use. Landfills and waste disposal into the subsoil
lead to the same result and to environmental degradation.
Irrigation practices not sustained by adequate drainage may cause siltation, soil erosion
and the loss of previously good lands. Excess chemicals in the form of weed killers or fertil-
izers cause water contamination with disastrous consequences for downstream domestic,
agricultural, fishing and industrial uses and the contamination of groundwater. Inadequate
sewerage or drainage systems, or, even worse, the absence of such systems, have made water
2 Principles of Water Law and Administration
bodies carriers of waterborne diseases. The reduction of the discharge of rivers into the sea
caused by excessive domestic, agricultural and industrial uses may lead to the increase of
infiltration of brackish water into deltaic groundwater areas.
On the other hand, excessive floods, which are often caused by lack of watershed pro-
tection measures and by the improper use of land and forests, can destroy or render less
useable what was once high-production potential land. Radioactive contamination and toxic
wastes spoil atmospheric water and cause air pollution and acid rain, endangering human,
animal and plant life. Finally, the overpumping of groundwater may cause its exhaustion and
the intrusion of seawater in coastal areas.
Most countries have reached the end of the era during which water was considered an
unlimited resource and are at the beginning of a new era in which it must be used more thrift-
ily and protected from pollution. It may be said that no country, region or basin in the world
can be fully satisfied with the quantity or quality of water at its disposal to meet present and
foreseeable future water demands.
If not adequately planned and managed, both quantitatively and qualitatively, water use
may cause detrimental side effects to the water itself and to other natural resources. Since
these negative effects can be avoided through the enactment of adequate water legislation
and the establishment of an appropriate water administration, it is safe to say that success in
the development, protection and conservation of water resources in a country depends to a
large extent on the effectiveness of its water laws and institutions. Moreover, where supplies
are scant or almost fully utilized, pressures of new demands require greater efficiency in
use and legal mechanisms for the reallocation of the available water from polluting and less
productive uses to new and more desirable ones.
1.2 The need for a water policy, legislation and

administration
As a consequence of these realities, the need is being increasingly felt for more careful
consideration of all the problems related to the use of water resources, among which, in first
rank, are the legal and administrative aspects involved. The need for formulating policies in
support of water resources development programmes and activities is also felt.
The overall objective of a water policy is to achieve the maximization of benefits deriv-
ing from available water resources and to promote their rational and sustainable management.
A sound and well-balanced water resources policy should be viewed, as the case may
be, at the national, basin, regional, local or project levels. It should be designed in line with
the existing situation and requirements in any particular state, region or basin, and be con-
cerned with finding ways and means to satisfy existing and future water demands on the
basis of water availability, existing uses, water quality, estimates of population growth and
technical and financial possibilities. This calls for proper water resources management plan-
ning and the allocation of financial resources where needed.
Just as a national water resources policy must be viewed within the context of an overall
development plan, as it may constitute either a catalyst or a barrier to plan implementation,
the institutional setup for water resources management may act either as a stimulus or as a
constraint upon the national development process. Likewise, a well conceived water legisla-
tion may constitute a means to implement water policy decisions and facilitate the rational
utilization of water resources, while an inadequate water legislation can act as a hindrance
to this utilization.
Introduction 3
In many cases, water legislation has come down from the days when the resource was
considered to be inexhaustible. Time has overtaken the laws which gave users a free hand
on waters, and advances in knowledge and technology have outdated many early types of
control. The search for new sources has led to the extensive use of groundwater, to trans-
basin water transfers, to water storage and distribution schemes of formerly undreamed size,
to the recharging of aquifers, the recycling of water and the use of treated wastewater. Many
countries have no laws which provide for the management of these new sources or for con-
trolling these projects.
To meet new water needs, innovative water laws must be designed, not only to facilitate
and achieve efficient allocation or reallocation of resources and environmental protection,
but also to aim towards the attainment of social, economic and other national and interna-
tional goals. Water law reform may accompany land reform, in that the redistribution of
land may call for a redistribution of the water rights appurtenant to that land. Settlement
schemes to open up new land to irrigation or to turn nomadic or pastoral people to farming
may require special provisions in water laws or special organizations to manage or distribute
water. Programmes aiming at the welfare of indigenous populations may need special provi-
sions to enable them to compete with proposals for industrial development or commercial
irrigation projects. Future holders of water rights may have different degrees of sophistica-
tion that require different treatment.
Modern planning, development and management of water resources must be based on
water law principles which are implemented through legal procedures that authorize and
facilitate these processes. It is important to recall that in earlier days ‘water laws’ referred
mainly to legal rules governing the relationships among water uses, such as the riparian
doctrine or the prior appropriation doctrine. Nowadays, the interests and objectives of gov-
ernments must also be taken into consideration. As a result, the system must regulate the
relationship between water users and the state and clearly identify and define the powers of
the state concerning all uses of water, both public and private.
In some countries there may be a need for abolishing riparian rights and for adopting a
system of state control over water. In others, the existing controls should be modernized in
order to adapt the existing water rights to new priorities. Constitutional questions may need
to be handled in connection with the termination of private water rights or the taking over
of private waters by the state. Government institutions and agencies may have to undergo
changes, this giving rise to political and legal problems when interjurisdictional conflicts for
the sectorial management of water resources arise.
Due to the wide range of water utilizations, harmful effects and quality aspects, many
government ministries, autonomous institutions, private corporations and individuals are
involved, concerned, interested or users of water. On the other hand, legal enactments often
purport to govern specific water uses, harmful effects or misuses, and each of these laws may
be administered by a different ministry or department without apparent or enforced coordi-
nation. The results of this situation are the overlapping of responsibilities, inadequate or poor
planning and coordination, a sectorial approach to water projects, detrimental effects of one
project on another, waste of natural, financial and human resources, insecurity in the rights
to use waters and uncertainty as to the successful implementation of projects.
Often water resources projects, though they may have been technically and economi-
cally well conceived, have been hampered, delayed or doomed to failure as a consequence
of inadequate water legislation or other legal constraint. Investors and international agencies
underwriting large projects now seek from the law the security once provided by a seemingly
inexhaustible stock of water. In fact, any water development or conservation project needs
capital, the investment of which is only feasible if the legal rights are well defined, water is
allocated in volume, time and quality to satisfy the demand and the recovery of the capital
originally invested is secured.
In the case of international drainage basins, the lack of adequate conventions and insti-
tutional arrangements renders the development of water resources projects problematic and,
sometimes, is a cause of international water disputes.
For these reasons, a rational water resources policy must take into consideration the legal
and institutional aspects of water resources management, both with respect to their implica-
tion in the technical, economic and social aspects and at every level of water resources man-
agement, including data collection and processing, planning, the implementation of policies
and decisions and the monitoring of such implementation.
The issues connected with water administration and legislation are being increasingly
dealt with by the United Nations system of agencies for the benefit of member countries.
The Food and Agriculture Organization of the United Nations (FAO) was the first to initiate
water law studies in 1951; the United Nations and its Economic Commissions for Asia and
the Pacific (ESCAP, formerly ECAFE), for Europe (ECE) and for Latin America and the
Caribbean (ECLAC) all undertake studies and activities in this field. The same applies to the
United Nations Educational, Scientific and Cultural Organization (UNESCO), which, inter
alia, has assisted the International Law Commission (ILC) in the preparation of the Draft
Articles on the Law of Transboundary Aquifers. Through these and other organizations and
financing institutions, such as the European Union, the World Bank and the Asian Develop-
ment Bank, technical assistance is provided to countries wishing to modernize their water
administration and legislation and for formulating national water policies.
1.3 The interdisciplinarity of the subject

It is increasingly recognized by managers, technicians and economists that water resources
legislation and institutions play a key role in the planning, operation and maintenance of
projects connected with water resources development, conservation and protection. The
inadequacies in the laws are considered as constraints in the development of water resources,
and because these constraints are usually encountered, not by legally trained people but by
water managers (water engineers, hydrologists, hydrogeologists) and economists, the exact
content, spirit, implications and extent of water legislation are either not well known or
overlooked altogether.
On the other hand, lawyers generally lack the knowledge of basic hydrologic, technical
and economic data which are indispensable for dealing with water management. Therefore,
they are not always equipped to provide the legal and institutional solutions sought by water
technicians and economists responsible for water management.
The science of water resources policy, administration and law is a relatively new one,
necessitating an interdisciplinary approach. Starting from the technical aspects of water
(hydrologic cycle, different types of uses, single or multi-purpose projects, etc.) it purports
to provide water resources planners and managers with those legal and institutional tools
necessary to overcome the constraints encountered by the technicians and economists.
In addition to technical aspects, socio-economic elements should be considered by the
lawyers having responsibilities in the field of water resources management. These aspects
are explained in the following two sections.
Introduction 5
1.4 The physical context

Whenever dealing with water law, one should take into consideration the natural context of
water and the way in which it occurs. Because the purpose of water law is to regulate the use,
conservation and protection of water, it is necessary to know what the subject of regulation is.
1.4.1 The hydrologic cycle

The hydrologic cycle is, in broad terms, the cyclic movement of water in the globe, from the
sea to the atmosphere, from the atmosphere to the earth and subsequently back to the sea.
With the heat of the sun, water evaporates from the oceans and other bodies of water
and rises into the atmosphere. Atmospheric water condenses in clouds which are moved
by the wind and then descends to the earth in the form of rain, snow, hail or dew, part of
which evaporates immediately, some is absorbed by plants (evapo-transpiration), part of it
infiltrates into the ground to form underground aquifers, and some of it flows on the surface
(water flow) forming watercourses, rivers, lagoons, wetlands, etc., which in turn flow into
the seas. From the seas, the hydrologic cycle starts again.
Both surface and underground water flowing into the sea are part of the hydrologic
cycle. Some underground waters, however, are trapped in the subsoil and do not participate
in the hydrologic cycle.
In certain areas, periods of drought or flood may occur, during which one might think
that the cycle has ended. This is, however, only the result of local or regional situations; the
hydrologic cycle continues and is a dynamic phenomenon.
The imaginary line which connects all the points of higher elevation on the surface of
land within which all the water flows into a common terminus, either to the sea or to an inter-
nal body of water, forms a river basin, a drainage basin or a watercourse system.
Presently, in terms of law and administration, man’s control over water is limited to
that part of the cycle when water falls to the earth. Activities relating to non-renewable
groundwater, the recharge of aquifers and water desalinization are not adequately controlled,
although groundwater is increasingly being scrutinized by lawmakers and scholars. Like-
wise, the behaviour of atmospheric water, which can be influenced, thanks to modern tech-
niques such as cloud seeding to produce weather modifications, is rarely controlled by law.
1.4.2 Definition and analysis of precipitation

Precipitation is a general term describing all forms of water falling from the atmosphere to
the earth. The factors contributing to the production of precipitation are humidity, the rise of
humid air, cooling and condensation.
The amount of water available, whether it be surface, underground or atmospheric, is
not always possible to know, because different institutions deal with these aspects. Meteo-
rologists are only interested in atmospheric water, hydrologists and their institutions deal
with surface water, while groundwater is handled by hydrogeologists and their institutions.
In most countries, therefore, three separate bodies of specialists deal with the same resource.
For one it is only a mineral, for another a matter of weather forecasting and yet another is
interested in the surface flow.
From the viewpoint of water administration, when contemplating land use planning,
soil erosion control, forest conservation and watershed management, it is indispensable to
know the amount of flow at any required level: regional, basin, national, international. This
is in order to allocate water among various users.
Furthermore, the question of the relationship of water with other natural resources
arises, in connection with land management, soil erosion, salinization, floods, coastal areas
and ocean management, for instance. In addition, water has a direct influence on fauna and
flora. If possible, it is necessary to determine an ecological balance for the use of water.
Therefore, when preparing a water law, one must coordinate and interconnect water law
and administration with the legislation concerning other natural resources, because prob-
lems may arise when uses of different natural resources are licenced separately, by different
authorities, without coordination being sought.
1.4.3 Analysis of flow

All hydrologic phenomena are aleatory: their future behaviour cannot be accurately cal-
culated on the basis of mathematical laws. However, they can be predicted on the basis of
statistical analysis that takes into account historical data. One can also analyze these phe-
nomena by using mathematical probabilities.
Flow is the precipitation that remains on the earth before returning to the sea. It may
remain on the surface of the ground, infiltrating the soil or gathering in lakes or ponds, or it
may encounter a river and flow naturally towards a sea or inland water body. This flow will
influence the type of vegetation, soil and gradient of the land.
Rivers are classified according to their velocity of flow and continuity and may be peren-
nial, intermittent or recurrent. For water allocation purposes, it is important to calculate the
monthly or annual average of the river flow.
1.4.4 Groundwater and its behaviour

General awareness of the importance of groundwater has notably increased in recent times,
due to the fact that surface water resources have become insufficient to meet the numerous
needs stemming from population and economic growth. The attention of governments and
international organizations has been drawn to groundwater, the utilization of which is funda-
mental in order to satisfy basic needs, particularly in densely populated areas and in the pres-
ence of conditioning factors such as the lack of surface water in arid and hyper-arid regions.
Facilitated by modern technology, groundwater exploitation has greatly expanded,
causing a number of problems. In fact, if not adequately controlled, abstraction activities
may cause, inter alia, the depletion of aquifers, the deterioration of groundwater quality,
salt water intrusion in coastal areas and land subsidence. Activities other than groundwater
abstraction, such as mining activities, the discharge and disposal of solid and liquid wastes,
the use of fertilizers and pesticides in agriculture and other land uses can be responsible for
the deterioration of groundwater quality.
For a better understanding of the legal problems which may arise in connection with
these activities and of the consequent need for subjecting them to public control, it is neces-
sary to shed light on non-legal aspects of groundwater, along with some definitions.
The expression ‘groundwater’ includes all waters located below the land surface. The
question as to whether or not a spring is a ‘groundwater’ remains open and left for the deci-
sion of hydrologists and hydrogeologists. Groundwater is meant to include two large catego-
ries. To the first belong those groundwaters which are directly connected to the hydrologic
Introduction 7
cycle, i.e., those which derive from, and are replenished by, rainfall, snow, hail and sur-
face water. If underground waters of this kind are withdrawn faster than they are naturally
recharged, the groundwater level will be lowered, and the groundwater will be gradually
exhausted. In this case, the legal regime should ensure the application of the principle of
‘safe yield.’ Such expression designates the quantity of water that may be extracted from an
aquifer annually without producing detrimental consequences to the yield or to the quality
of the water, and therefore to the community at large.
To the second category belong those groundwaters which are not part of the hydrologic
cycle and consequently are not replenished. They are to be found in aquifers receiving neg-
ligible contemporary recharge and are located mainly in arid regions.1 These groundwaters
are not connected with surface water and do not reach the surface by natural processes. In
other words, they are in storage and are usually a relic of past climatic régimes. If abstracted
they are depleted and eventually will be exhausted.2 Thus, to a certain extent3 they have to
be treated as minerals, i.e., water which, after use, is no longer available. A legal régime dif-
ferent from that of renewable groundwater has to be applied.
Hydrogeologists have used many names to designate the various types of groundwater,
such as, phreatic to designate those generally connected to the hydrologic cycle; and fossil,
magmatic, juvenile, etc., to designate those which are apparently not renewable.
These definitions are quite relevant from a legal viewpoint, as they have repercussions
on the different legal régimes applicable to each category of groundwater. For example, is
a groundwater ownership right confined to the groundwaters to be found by the landowner
immediately beneath his land, or does it include fossil, magmatic and juvenile groundwater?
Likewise, depending on whether the groundwater under consideration is renewable or non-
renewable, a different legal régime as regards its use may apply.
Although they follow different routes, surface and underground waters originate from
the same source. Thus, whenever feasible they must be managed and exploited jointly. Sur-
face water is used in preference for agricultural and industrial purposes, while groundwater
is generally used only for domestic supply.
1.4.5 The notion of aquifer

Another important definition is that of ‘aquifer.’ An aquifer is a geologic formation receiving,
retaining and storing groundwater. All aquifers are characterized by a flow component and a
storage reserve. Since the storage of an aquifer is often remarkably large, the time employed
by the water to flow from the area of recharge to that of discharge may be extremely long,
also considering the fact that groundwater moves slowly. During this time frame, the flow
1 Such as the Nubian Sandstone Aquifer System and the North-Western Sahara Aquifer System. According to
scientists, ‘non recharging’ aquifers are those which receive less than 200 mm annual rainfall; ‘contemporary’
refers to a 100 year time span.
2 Matthews, O.P. (1984) Water Resources Geography and Law. Washington, DC, Association of American Geog-
raphers, 6.
3 Non-renewable groundwater differs from mineral resources because (a) in arid regions it may be the only source
of water supply to satisfy vital human needs and (b) unlike minerals, it may become polluted and therefore unfit
for use. See Nanni, M. & Foster, S. (2005) Groundwater Resources – Shaping Legislation in Harmony with Real
Issues and Sound Concepts. Water Policy 7:5.
(and the discharge) may be influenced as a result of human activities. If an aquifer is hydrau-
lically connected to one or more other aquifers, we are in the presence of an aquifer system.
The notion of aquifer is also important as regards water pollution, because what is pol-
luted is not only the water, as non-specialists may think, but the aquifer itself, and this is a
pollution which can be eliminated with difficulty and only over a long period of time. Due
to the complexity of groundwater flow and the time lag between the occurrence of pollution
and when the effects are felt, it is technically difficult to prove liability for pollution. Finally,
it is essential to identify the linkage between aquifer recharge, which is practiced to increase
the volume of water that may eventually be exploited, and land use, because urban and agri-
cultural development may radically modify recharge rates.
Aquifers are underground water reservoirs and must be managed as hydrologic units;
their indiscriminate exploitation must not be allowed.
1.4.6 Weather modification

Since the 1950’s, studies have been carried out in the United States concerning rainfall artifi-
cially increased through cloud seeding. This process only confirms the fact that the dynamic
physical factors that intervene in the natural rain process are far from simple. The idea of
modifying the weather is not new; man has often tried to do this because rain is directly
linked to the social and economic development of the society.
The matter of weather modification raises many legal issues: there may be conflicts among
users, both at the national and international level if it is not adequately controlled by law.
1.4.7 Climate change

Climate change entails long-term continuous change to the global earth climate or to regional
climates. Such change may be due to processes inherent to our planet, to external influences,
or to human activities typical of the modern era, i.e., of the last 150 years. In the latter case,
we are in the presence of anthropogenic climate change, brought about by greenhouse gas
emissions originating in human activities.
The United Nations Framework Convention on Climate Change (1992) employs this expres-
sion to designate climate change due to human activities (anthropogenic change) only, while it
uses the expression ‘climate variability’ to designate climate change due to natural causes.
Nowadays nobody would deny the fact that human actions are susceptible to bring about
climate change. The extent and effects of this change are the subject of heated debate, even
among experts in this area. Depending on regions, the effects of climate change may range
from the increase of extreme natural phenomena such as floods and droughts, to seasonal
variations in rain patterns, and may lead to an acceleration of the hydrologic cycle.
Human actions relating to water, such as water abstraction, pumping, water diversions,
drainage, irrigation, water supply, wastewater treatment and discharge have certainly con-
tributed to climate change, whether directly or indirectly, either because of a higher energy
demand for different purposes of water use, or because of a higher incidence of economic
activities producing greenhouse gases, which allow greater productivity in the agricultural,
industrial and tourism sectors.
On the other hand, water may serve the purpose of mitigating the effects of climate
change. For instance, hydropower generation may provide clean energy, provided that the
context in which it takes place is favourable and that certain conditions are met. By the same
Introduction 9
token, navigation may constitute an ‘ecological’ mode of transportation of merchandise

whenever modern fleets are employed. By regulating or promoting certain practices, water
law and administration may influence the anthropogenic causes of climate change. Water
law may have an influence on water demand and water quality, promote efficiency in water
use and water recycling. By balancing efficiency and equity, it may provide the flexibility
needed to adapt to climate change, as well as security in the tenure of water rights.
Water law and administration may promote modern water resources management
principles, such as integrated water resources management, stakeholder participation, the
‘polluter-pays’ and ‘user-pays’ principles, education and capacity building. As far as the rela-
tions among states are concerned, climate change challenges may only be addressed through
enhanced international cooperation. International water law plays therefore a particularly
important role.
1.4.8 Integrated water resources management (IWRM)

According to the Global Water Partnership (GWP), a non-governmental organization, inte-
grated water resources management (IWRM) is ‘a process which promotes the coordinated
development and management of water, land and related resources in order to maximize
economic and social welfare in an equitable manner without compromising the sustainabil-
ity of vital ecosystems.’ This notion, which was the subject of extensive discussions after
the International Conference on Water and the Environment in Dublin, 1992, entails that
all water resources, whether surface, underground or atmospheric, all water uses and water
quality aspects are to be considered and managed together in an integrated manner, tak-
ing into consideration the relationship between these resources, other natural resources and
related ecosystems. By implication, the ideal unit for IWRM is the river basin.
This holistic approach requires the rejection of the traditional fragmentation of laws and
sector-by-sector, top-down, resource management approaches, and the adoption of compre-
hensive water legislation and supporting institutional frameworks.
1.5 The socio-economic context

The complexity of the management of water resources through law is shown by its relation-
ship with almost all the sectors of human life. Water is used for domestic purposes, water
supply in municipalities and rural areas, and for agricultural purposes. When formulating
legislation, decisions are to be made as to whether small gardens should be treated in the
same way as large irrigation areas, or if the watering of a few animals should be treated dif-
ferently from the watering of a herd. Hydropower production, generation and distribution
is per se a water use, which differs from the use of water for mining, agro-allied industries,
cooling and washing. In some developing countries, water mills constitute an industrial use.
Water is utilized for transportation, navigation and timber floating, uses which compete with
one another. Water is utilized for medicinal and thermal purposes, recreational purposes,
public bathing, swimming pools and fishing purposes. We now have uses for geothermal
energy production. Legislation enacted in recent decades recognizes that water also serves
an ecological purpose. Therefore, it requires the maintenance of a minimum flow in water
bodies, or the constitution of a water ‘reserve,’ such as is the case in South Africa.
If not adequately controlled by law, the uses of water may cause pollution and con-
sequently health hazards and waterborne diseases. The question arises as to whether the
control of pollution should be the responsibility of the water administration or of the health
authorities. Water pollution may also be brought about by certain land uses and other activi-
ties which fall under the control of different authorities. Thus, the issue of coordination with
the water administration arises.
Generally speaking, there are many laws and regulations which deal with the sectorial
aspects of water resources management. There are, as well, various administrations deal-
ing with the same public functions. The above-mentioned examples show the complexity
of water resources management; any decision on specific aspects has repercussions on the
whole social context, which is why governments are often reluctant to take measures con-
cerning them.
1.5.1 Water demand

The demand for water varies in proportion to population density and the price that one has to
pay for it. When water prices are low, the quantity of water utilized will be correspondingly
high. On the contrary, as the price of water increases, there will be, up to a certain point,
a decrease in the quantity requested. The relationship between price and quantity is called
‘price elasticity.’
Water demand is different from water requirement; the latter is fixed and immutable and
does not depend upon the price or the quantity of water available. For example, the water
requirement for plants relates directly to the amount of water that plants need to survive.
Water demand is affected by a number of socio-economic implications, such as the legal
system, the institutional framework, customs and traditions, religious beliefs and economic
and financial considerations prevailing in any one country. Climate is another factor affect-
ing water demand: dry areas will require more water than humid ones. Finally, water demand
is influenced by water quality; thus, water containing a high percentage of salt will not be of
great domestic or agricultural use.
Water demand for irrigation purposes is affected by soil characteristics: the texture, den-
sity, structure, permeability, fertility, salinity, drainage effectiveness and topography of the soil.
Water is directly linked to the economy. When prognosticating, decisions must be made
on the amount of capital and equipment to be allocated for the creation of new facilities.
Three factors may intervene to increase the amount of available water to meet future
water demand. Firstly, there may be an improvement in the use of water through the elimi-
nation of water losses; secondly, the authorities may reallocate water; finally, new water
projects may be constructed and new water sources discovered. New water projects should
always be a factor for more equitable water distribution and for economic growth.
1.5.2 Water pricing

Water resources, like any other natural resource, have a price.
Water pricing is a political issue which requires the collaboration and consultation of
the government departments involved in water resources management. It is obvious that
the hypothetical water price is the one resulting from free competition on the market. Such
hypothetical price reflects production costs and optimal water allocation. However, the real
price of water is not explicitly determinable. While the cost of production of water may be
high, the price the consumer pays for it is often very low. Thus, the price paid for drinking
water is not directly connected to the production cost.
Introduction 11
It is generally felt that, in the case of towns, the users are in a position to pay for water
and electricity. In areas where irrigation is practiced, this is not always true. In some coun-
tries, irrigators can pay for water, but for newly irrigated areas in developing countries one
cannot expect immediate payment for water. Thus, those who are in a position to pay for a
particular use will do so, subsidizing the water price for other uses.
1.5.3 Externalities
When the activity of one economic unit directly affects the utility or the welfare of other
economic units, economists will say that there is an ‘externality.’ To eliminate or ‘internal-
ize’ this externality produced by the use or pollution of water, it is necessary to intervene in
the price charged for water. Intrinsicly, this means that all the users must recognize the influ-
ence that they have on other users. For instance, if user A, being located upstream, creates
problems to user B in the use of water or in the pollution of the river, the idea is that user A
has to pay for or diminish the water use (or pollution) corresponding to the prejudice caused
to user B.
Similar situations may arise in the use of groundwater. According to the economists, any
activity creating an externality has to be considered a ‘diseconomy.’
Various ways are available to respond to these situations: payment of a corresponding
fee, rationing, or, in the case of industrial installations, the abstraction of waters downstream
and the return of them upstream, so that the waters must be treated before their use.
This can be achieved through sound economic analyses and legislation which promotes
flexibility and minimizes the damages that may occur.
1.5.4 Cost analysis

If one tries to allocate water in accordance with its maximum cost benefit, i.e., at its highest
price, then water would have to be assigned to those users who would be able to pay the
most. This system would only be adequate if all users had the same monetary capacity. It is
obvious that domestic water allocation cannot be linked to users’ incomes.
In the neo-classic approach, prices are connected to the forces of the market. In such
context, offer and demand for goods do not depend upon political and social factors, but
determine the price of goods directly. Thus, the market is an objective and natural mecha-
nism where economic intervention is prohibited.
Water prices are based on many criteria, including social, religious, cultural, politi-
cal, economic and legal elements. Therefore, the neo-classic economic analysis cannot be
applied here. The law must take into consideration these factors.
1.6 The purpose of the book

The purpose of this book is to provide a tool for dealing with the legal and institutional
aspects of water resources management to those who are called upon to carry out functions
within the context of water resources administrations and to face the legal issues raised by
water management.
These issues are generally encountered not by lawyers, but by water administrators,
who are, of course, aware of the problems of the allocation of water for various uses, but
usually do not know how to solve the issues, as these are of a legal nature. On the other
hand, lawyers generally do not know exactly what water is. For them, it is something liquid
flowing from the tap. Unfortunately, lawyers trained in the field of water resources are a rare
commodity.
This book purports to be multidisciplinary in nature and considers general issues of
water law and administration. In addition, it intends to indicate problems that may arise and
guidelines for considering possible alternative solutions. Sometimes, only a brief description
of or guidelines concerning particular topics will be offered, since an exhaustive treatment of
the subject would require more than one volume.
References
Biswas, A.K. (2004) Integrated Water Resources Management: A Reassessment. Water International
29 (2): 8.
Burke, J.J. & Moench, M.H. (2000) Groundwater and Society: Resources, Tensions and Opportuni-
ties. Themes in Groundwater Management for the Twenty-First Century. New York, United Nations
Publications ST/ESA/265.
Caponera, D.A. (1976) Outline for the Preparation of a National Water Law Inventory. Background
Paper No. 7. Rome, FAO.
Duckstein, L. (1975) The Role of New Technologies for Improved Water Management and Related
Effects on Water Law Systems. Proceedings of the Conference on Global Water Law Systems.
Valencia.
Grays, L. & Nobe, C.K. (1975) Water Resources Economics, Externalities and Institutions. Proceed-
ings of the Conference on Global Water Law Systems. Valencia.
Maas, A. et al. (1962) Design of Water Resources Systems. Cambridge, Mass., Harvard University
Press
Matthews, O.P. (1984) Water Resources Geography and Law. Washington, D.C., Association of Amer-
ican Geographers.
Sewell, W.R.D. (1974) Water Resources Planning and Policy Making Challenges and Responses,
Chapter 13. Priorities in Water Management, F.M. Laversedge, Western Geographical Series,
Vol. 8, Dept. Of Geography, University of Victoria, Victoria, B.C.
World Resources Institute (1986) World Resources 1986. Washington, D.C., Basic Books.
Chapter 2
Earliest water regulations and

management
2.1 The importance of water regulations throughout history

A quick perusal of history demonstrates the intimate connection between the economic and
social development and the stability of a group of people, and the availability and reliabil-
ity of water supply. This has rightly led many authors to define the first developed social
groupings as hydraulic civilizations. Often, these civilizations are referred to by the name
of the river valley around which they developed. Thus the Egyptian civilization is the civi-
lization of the Nile, the Assyro-Babylonese or Mesopotamian is the Tigris and Euphrates
civilization, the Hindu is the civilization of the Indus, the Chinese is the civilization of the
Huang-Ho. Civilizations which developed during other and more recent historical periods
and which had great social impact also grew around important water points; such is the case
of the pre-Columbian, Peruvian and Meso-American civilizations around the coastal valleys
of central and South America, the Khmer civilization around the Mekong River, the Elam
and Suziana civilizations around the Dez River (in south-west Iran) and the Helmand civili-
zation along the Helmand River between present Afghanistan and Iran. Arabic civilizations,
which originated in desertic areas, also developed and expanded from oases to river valleys,
i.e., from well-watered points to better-watered ones.
All major human migrations and the birth of towns and communities have been closely
correlated with the search for and the settlement around naturally irrigated areas and valleys
adequately supplied with water. Early transportation was facilitated by waterways with con-
sequent benefits derived from trade and interexchanges.
Civilizations developed wherever river valleys were subject to recurring floods which,
in turn, brought natural flood irrigation to areas into which the rivers carried, together with
water, fertile alluvial soil suitable for agricultural development.
As soon as human groups settled around a water point or a river valley, the need arose
for minimum water control in order to satisfy water demands and to ensure an equitable
water distribution between different uses and users. It is from this need that the earliest water
law systems developed. Their growth, persistence and character varied and were dependent
upon many factors, such as local geo-physical and climatic conditions, socio-economic and
managerial situations, and the religious-philosophical beliefs of the populations concerned.1
1 For a description of earliest hydraulic civilizations: Pan American Union (1955) Irrigation Civilizations, a
Comparative Study. Washington D.C.; Steward, J. (1949) Cultural Casualty and Law: A Trial Formulation of
In regions where water was abundant, water control was largely directed towards
defence against harmful effects of water such as flood warning and control and fight against
water invasion, land reclamation, embankment and dyke construction and maintenance. In
areas where water was scarce, this control developed towards the conservation of water
supplies and adequate distribution of the little water available; water regulations were more
detailed and restrictive. It must be pointed out that, in early water regulations, the religious
character of water, either as a gift, a reward or as a punishment by nature, God or the gods,
was always present, possibly with the exception of China.
Furthermore, the amount of labour required for successful water resources development
and conservation activities was an important factor which determined and influenced the
socio-economic organization and growth of the hydraulic civilizations.
It may also be said that the development and growth of early hydraulic civilizations
were closely related to the degree of effectiveness of the administrative-managerial, reli-
gious and legal controls imposed on water use; on the other hand, diminished social concern
over the management of water was one of the main causes of the subsequent decay, and
sometimes disappearance, of early hydraulic civilizations.2 A typical example is the disap-
pearance of the Mesopotamian civilization as a consequence of diminished administrative
control over the canals, which became burdened with silt. Likewise, throughout history,
the intervention of external invaders with the destruction of waterworks and disruption of
existing water management also made certain hydraulic civilizations disappear. Examples
include the destruction by Tamerlane of the retention works on the Helmand River in the
fourteenth century AD in the lower valley of present Afghanistan, which caused the Hel-
mand valley community to disappear and the desertification of the area; the destruction of
the canalizations in the Neghev, of the Roman aqueducts by the barbarians and of the Sin-
ghalese waterworks.
2.2 The difficulty of studying early water regulations

The sources for the study of ancient law in general are many; for the analysis of ancient
water law in particular, three sources seem to be relevant. The first are the observations by
past and present authors on the life and laws of ancient people; the second consists of the
ancient texts and compilations commonly referred to as ‘codes’ and which are a continuance
of the historical development of primitive law; the third is represented by legal or other
relevant documents which have come down to us, especially those embodying legal transac-
tions and administrative or managerial instructions.
However, this study is difficult, as it involves the interpretation and analysis of scattered
passages of ancient texts. It is even more difficult to abstract basic principles from them. A
thorough knowledge of the works in their entirety would be necessary, not only from trans-
lated, deciphered or transliterated texts, but also from direct sources. This task presupposes
Development of Early Civilizations. American Anthropologist 51, 1; Steward, J. (1953) Evolution and Progress.
Anthropology Today. Chicago, University of Chicago Press; Wittfogel, K. (1957) Oriental Despotism. Yale Uni-
versity Press; Drower, M.S. (1956) Water Supply, Irrigation and Agriculture. A History of Technology, Vol. I.
Oxford Clarendon Press.
2 For a description of this situation see: Caponera, D.A. (1978) Water Laws in Hydraulic Civilizations. Festschrift
für Karl Wittfogel, Society and History. The Hague, Paris, New York, Mouton Publishers.
Earliest water regulations and management 15
the knowledge of ancient languages, and those who know these languages are seldom law-
yers. To these difficulties may be added the need to regard the legal and institutional aspects
of water ownership, utilization and administration within a historical framework, which
includes the political, religious and geo-hydrographical background of the period, in rela-
tion to the regions and civilizations within which they originated, developed and eventually
disappeared. Therefore, a thorough and scientific legal analysis of ancient texts to ascertain
or abstract irrefutable legal principles on water laws of early times would require the coop-
eration not only of lawyers but also of anthropologists, linguists, philosophers, theologists,
historians, political scientists, sociologists, economists and water technicians, qualities very
seldom found in one person.
On the other hand, the importance of considering the values of primitive water regula-
tions and institutions within the overall framework of the society in which they developed
cannot be overlooked. A general knowledge of the background of the historic and socio-
economic situation of primitive hydraulic civilizations is therefore a prerequisite for under-
taking these studies. Finally, in the eyes of a modern writer the administrative and legal
concepts of ancient civilizations may appear somewhat different and have diverse meanings
if considered in the light of our current institutions within which our scientific, technological
and legal preparation have developed.
2.3 The development of earliest water law principles 3

The very nature of water presented two precisely opposite challenges to the evolving early
hydraulic civilizations: how to convey it to the land for irrigation where it was needed, and
how to control it where it threatened men or was likely to cause damage. In the first instance,
hydraulic civilizations developed where natural and recurring floods brought water and allu-
vial soil to the lands; at a later stage man-made aqueducts and irrigation canals provided for
such need. As a defence against harmful effects of water, dykes, dams and artificial hydraulic
structures were built. As regards the harmful effects of recurring floods, populations were
obliged to pool their efforts and organize themselves. These two physical aspects of water
brought about the first quest and development of water law principles.
The incalculable amount of labour necessary to ensure water control obliged a whole
community to work for a common end, and, as a consequence of the union of efforts in water
activities, a decisive step took place toward the elevation of a community to the level of a
state. In fact, defence and divine worship constituted the combined action for this progres-
sion. Hydraulic civilizations necessitated an authority which planned the works, supervised
their execution and brought them by coercion to successful completion. Such coercion must
have taken place by means of water regulations under an appropriate water administrative
authority. Government control over agriculture and commerce was subsequent to the con-
struction of canals and navigation structures.
3 For the development of primitive law systems: Diamond, A.S. (1935) Primitive Law. London, Longmans, Green
and Co.; Armijo, Nolde & Wolff (1938) Recueil d’etudes sur les sources du droit, 3 vol. Publ. en L’honneur de
F. Geni; Maine, H.S. (1906) Ancient Law and Early Law and Custom. With regard to primitive water regulations
and administration, Pan American Union, op. cit.; Von Ihering, R. (1897) The Evolution of the Aryan, translated
from German by A. Drucker. London, Swan Sonnenschein and Co. Ltd.
At the earliest stage of development of law, the chief valuable was land, including water,
cattle and slaves (for which water was needed), ships or boats (utilizing water) and the rest of
movable items (food, household furniture, equipment), etc. However, unlike movables, land
accompanied by the availability of water was, and is, the essential source of life in all phases
of human society. Land is fixed in extent, and all members of the community must have access
to it in appropriate quantities. This is how the rights-duties relationship of land and waters
developed. Public interest of the community in land and water gave rise to their becoming
public property. Individuals within hydraulic civilizations practiced a certain mode of conduct
towards the use of communal land and water for drawing, for transit, hunting, fishing, etc., and
this behaviour came to be considered the right of any member of the community. Such public
rights varied according to the character of the land and water and the socio-economic structure
of the community; in most places development gave rise to the notion that all lands and waters
belonged to the community and that the rights of individuals or groups were either dependent
or partial. In those communities where there was no land property, what vague notion existed
with respect to land ownership probably went in the direction of communal property under
various forms: tribal, property of groups intermediate between the tribe and the family, cases
where land and water were vested in the chief, or a combination of all of these.
2.4 Ancient Egyptian water regulations and management 4
2.4.1 Earliest dynasties (3400–2650 BC)

Very little is known of the water regulations of ancient Egypt, although Egyptian records
relate that they existed. The most important codifications referred to are those of Horemheb
at Karnak. None of these regulations seem to have survived.
However, reliable records describe in detail the hydraulic structures built and the water
administration through different periods, from which it may be assumed that a whole body
of water regulations must have existed.
In the pyramid texts, the god Osiris is identified with the Nile waters. According to tradi-
tion, Menes, the legendary first of the Pharaohs, dammed the Nile to control floods. As early
as the period of the first two dynasties (about 3400–2980 BC) there was a ‘Constructor of the
King’ (Medeh Nisout) providing for public works. From that time the Nile was measured and
recorded on the Palerm Stone.5 During the third dynasty (2980–2900 BC) the water adminis-
tration under the Constructor of the King developed into two departments, at the head of which
were a Master of Canals and a Master of Lakes. While no changes occurred during the fourth
dynasty (2900–2750 BC), under the fifth dynasty (2750–2625) a ‘Master of Water Castles’ was
added to the water administration, and the state organization developed even further.
The civil status of the population, the cadastre of lands, the registrar of all deeds, the
water administration and the public works department were coordinated by the Central
4 On primitive Egyptian laws and institutions: Pirenne, J. (1952) Archives d’histoire de droit oriental, Vol. 1–4;
Pirenne, J., Histoire des institutions anciennes d’Egypte, Vol. 1–3; Revillut, E. (1903) Précis de droit Egyptien
comparé aux autres droits de l’antiquité, Vol. I. Paris, Giard et Brière editeurs.
5 Borchardt, L. (1906) Nielmesser und Niels marken. Preuss. Akad. Wiss. phil. hist. Abh. nicht zur Akadgehör,
Gelehrter, No. 1, Berlin.
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most amazing judgments pronounced on them by critics whose
judgment on other subjects is excellent.[19] The reason of this tardy
recognition of Dostoievsky in his own country is that he was one of
those men whose innate sense of fairness and hatred of cant
prevent them from whole-heartedly joining a political party and
swallowing its tenets indiscriminately, even when some of these
tenets are nonsensical and iniquitous. He was one of those men who
put truth and love higher than any political cause, and can fight for
such a cause only when the leaders of it, in practice as well as in
theory, never deviate from the one or the other. He was between two
fires: the Government considered him a revolutionary, and the
revolutionaries thought him a retrograde; because he refused to be
blind to the merits of the Government, such as they were, and
equally refused to be blind to the defects of the enemies of the
Government. He therefore attacked not only the Government, but the
Government’s enemies; and when he attacked, it was with
thunderbolts. The Liberals never forgave him this. Dostoievsky was
unjustly condemned to spend four years in penal servitude for a
political crime; for having taken part in a revolutionary propaganda.
He returned from Siberia a Slavophil, and, I will not say a
Conservative, as the word is misleading; but a man convinced not
only of the futility of revolution, but also of the worthlessness of a
great part of the revolutionaries. Nor did the Liberals ever forgive him
this. They are only just beginning to do so now. Moreover, in one of
his most powerful books, The Possessed, he draws a scathing
picture of all the flotsam and jetsam of revolution, and not only of the
worthless hangers-on who are the parasites of any such movement,
but he reveals the decadence and worthlessness of some of the
men, who by their dominating character played leading parts and
were popular heroes. Still less did the Liberals forgive him this book;
and even now, few Liberal writers are fair towards it. Again,
Dostoievsky was, as I shall show later, by nature an antagonist of
Socialism and a hater of materialism; and since all the leading men
among the Liberals of his time were either one or the other, if not
both, Dostoievsky aroused the enmity of the whole Liberal camp, by
attacking not only its parasites but its leaders, men of high principle
such as Bielinsky, who were obviously sincere and deserving of the
highest consideration and respect. One can imagine a similar
situation in England if at the present time there were an autocratic
government, a backward and ignorant peasantry, and a small and
Liberal movement carried on by a minority of extremely intellectual
men, headed, let us say, by Mr. Bernard Shaw, Lord Morley,
Professor Raleigh, and Sir J. J. Thomson. I purposely take men of
widely different opinions, because in a country where there is a fight
going on for a definite thing, such as a Constitution, there is a
moment when men, who under another régime would be split up into
Liberals and Conservatives, are necessarily grouped together in one
big Liberal camp. Now, let us suppose that the men who were
carrying on this propaganda for reform were undergoing great
sacrifices; let us likewise suppose them to be Socialists and
materialists to the core. Then suppose there should appear a
novelist of conspicuous power, such as George Meredith or Mr.
Thomas Hardy or Mr. H. G. Wells, who by some error was sent to
Botany Bay for having been supposed to be mixed up with a
revolutionary propaganda, and on his return announced that he was
an Anti-Revolutionary, violently attacked Mr. Shaw, wrote a book in
which he caricatured him, and drew a scathing portrait of all his
disciples,—especially of the less intelligent among them. One can
imagine how unpopular such an author would be in Liberal circles.
This was the case of Dostoievsky in Russia. It is only fair to add that
his genius has now obtained full recognition, even at the hands of
Liberals, though they still may not be able to tolerate his book, The
Possessed. But considering the magnitude of his genius, this
recognition has been, on the whole, a tardy one. For instance, even
in so valuable a book as Prince Kropotkin’s Ideals and Realities in
Russian Literature, Dostoievsky receives inadequate treatment and
scanty appreciation. On the other hand, in Merejkowsky’s Tolstoy
and Dostoievsky, Merejkowsky, who is also a Liberal, praises
Dostoievsky with complete comprehension and with brilliance of
thought and expression.
II
Dostoievsky’s Life
Dostoievsky was the son of a staff-surgeon and a tradesman’s
daughter. He was born in a charity hospital, the “Maison de Dieu,” at
Moscow, in 1821. He was, as he said, a member of a stray family.
His father and five children lived in a flat consisting of two rooms and
a kitchen. The nursery of the two boys, Michael and Fedor, consisted
of a small part of the entrance hall, which was partitioned off. His
family belonged to the lowest ranks of the nobility, to that stratum of
society which supplied the bureaucracy with its minor public
servants. The poverty surrounding his earliest years was to last until
the day of his death.
Some people are, as far as money is concerned, like a negative
pole—money seems to fly away from them, or rather, when it comes
to them, to be unable to find any substance it can cleave to.
Dostoievsky was one of these people; he never knew how much
money he had, and when he had any, however little, he gave it away.
He was what the French call a panier percé: money went through
him as through a sieve. And however much money he had, it was
never he but his friends who benefited by it.
He received his earliest education at a small school in Moscow,
where a schoolmaster who taught Russian inspired him and his
brother with a love of literature, of Pushkin’s poetry and other writers,
introduced him also to the works of Walter Scott, and took him to see
a performance of Schiller’s Robbers. When his preliminary studies
were ended, he was sent with his brother to a school of military
engineers at St. Petersburg. Here his interest in literature, which had
been first aroused by coming into contact with Walter Scott’s works,
was further developed by his discovery of Balzac, George Sand, and
Homer. Dostoievsky developed a passionate love of literature and
poetry. His favourite author was Gogol. He left this school in 1843 at
the age of twenty-three, with the rank of sub-lieutenant.
His first success in literature was his novel, Poor Folk (published in
1846), which he possibly began to write while he was still at school.
He sent this work to a review and awaited the result, utterly hopeless
of its being accepted. One day, at four o’clock in the morning, just
when Dostoievsky was despairing of success and thinking of suicide,
Nekrasov the poet, and Grigorovitch the critic, came to him and said:
“Do you understand yourself what you have written? To have written
such a book you must have possessed the direct inspiration of an
artist.”
This, said Dostoievsky, was the happiest moment of his life. The
book was published in Nekrasov’s newspaper, and was highly
praised on all sides. He thus at once made a name in literature. But
as though Fate wished to lose no time in proving to him that his life
would be a series of unending struggles, his second story, The
Double, was a failure, and his friends turned from him, feeling that
they had made a mistake. From that time onward, his literary career
was a desperate battle, not only with poverty but also with public
opinion, and with political as well as with literary critics.
Dostoievsky suffered all his life from epilepsy. It has been said that
this disease was brought on by his imprisonment. This is not true:
the complaint began in his childhood, and one of his biographers
gives a hint of its origin: “It dates back,” he writes, “to his earliest
youth, and is connected with a tragic event in their family life.” This
sentence affords us an ominous glimpse into the early years of
Dostoievsky, for it must indeed have been a tragic event which
caused him to suffer from epileptic fits throughout his life.
In 1849 came the most important event in Dostoievsky’s life. From
1840 to 1847 there was in St. Petersburg a group of young men who
met together to read and discuss the Liberal writers such as Fourier,
Louis Blanc and Prudhon. Towards 1847 these circles widened, and
included officers and journalists: they formed a club under the
leadership of Petrachevsky, a former student, the author of a
Dictionary of Foreign Terms. The club consisted, on the one hand, of
certain men, followers of the Decembrists of 1825, who aimed at the
emancipation of the serfs and the establishment of a Liberal
Constitution; and, on the other hand, of men who were predecessors
of the Nihilists, and who looked forward to a social revolution. The
special function of Dostoievsky in this club was to preach the
Slavophil doctrine, according to which Russia, sociologically
speaking, needed no Western models, because in her workmen’s
guilds and her system of mutual reciprocity for the payment of taxes,
she already possessed the means of realising a superior form of
social organisation.
The meetings of this club took place shortly after the revolutionary
movement which convulsed Western Europe in 1848. The Emperor
Nicholas, who was a strong-minded and a just although a hard man,
imbued with a religious conviction that he was appointed by God to
save the crumbling world, was dreaming of the emancipation of the
serfs, and by a fatal misunderstanding was led to strike at men
whose only crime was that they shared his own aims and ideals.
One evening at a meeting of this club, Dostoievsky had declaimed
Pushkin’s Ode on the Abolition of Serfdom, when some one present
expressed a doubt of the possibility of obtaining this reform except
by insurrectionary means. Dostoievsky is said to have replied: “Then
insurrection let it be!” On the 23rd of April 1849, at five o’clock in the
morning, thirty-four suspected men were arrested. The two brothers
Dostoievsky were among them. They were imprisoned in a citadel,
where they remained for eight months. On the 22nd of December,
Dostoievsky was conducted, with twenty-one others, to the public
square, where a scaffold had been erected. The other prisoners had
been released. While they were taking their places on the scaffold,
Dostoievsky communicated the idea of a book which he wished to
write to Prince Monbelli, one of his fellow-prisoners, who related the
incident later. There were, that day, 21 degrees of frost (Réaumur);
the prisoners were stripped to their shirts, and had to listen to their
sentence; the reading lasted over twenty minutes: the sentence was
that they were to be shot. Dostoievsky could not believe in the reality
of the event. He said to one of his comrades: “Is it possible that we
are going to be executed?” The friend of whom he asked the
question pointed to a cart laden with objects which, under the
tarpaulin that covered them, looked like coffins. The Registrar
walked down from the scaffold; the Priest mounted it, taking the
cross with him, and bade the condemned men make their last
confession. Only one man, of the shopkeeper class, did so: the
others contented themselves with kissing the cross. Dostoievsky
thus relates the close of the scene in a letter to his brother:
“They snapped swords above our heads, they made us put on the
long white shirts worn by persons condemned to death. We were
bound in parties of three to stakes to suffer execution. Being third in
the row, I concluded that I had only a few minutes to live. I thought of
you and your dear ones, and I managed to kiss Pleshtcheev and
Dourov, who were next to me, and to bid them farewell.”
The officer in charge had already commanded his firing party to
load; the soldiers were already preparing to take aim, when a white
handkerchief was waved in front of them. They lowered their guns,
and Dostoievsky and the other twenty-one learned that the Emperor
had cancelled the sentence of the military tribunal, and commuted
the sentence of death to one of hard labour for four years. The carts
really contained convict uniforms, which the prisoners had to put on
at once, and they started then and there for Siberia. When the
prisoners were unbound, one of them, Grigoriev, had lost his reason.
Dostoievsky, on the other hand, afterwards affirmed that this episode
was his salvation; and never, either on account of this or of his
subsequent imprisonment, did he ever feel or express anything save
gratitude. “If this catastrophe had not occurred,” said Dostoievsky,
alluding to his sentence, his reprieve and his subsequent
imprisonment, “I should have gone mad.” The moments passed by
him in the expectation of immediate death had an ineffaceable effect
upon his entire after-life. They shifted his angle of vision with regard
to the whole world. He knew something that no man could know who
had not been through such moments. He constantly alludes to the
episode in his novels, and in The Idiot he describes it thus, through
the mouth of the principal character:
“I will tell you of my meeting last year with a certain man; this man
was connected with a strange circumstance, strange because it is a
very unusual one. He was once led, together with others, on to the
scaffold, and a sentence was read out which told him that he was to
be shot for a political crime. He spent the interval between the
sentence and the reprieve, which lasted twenty minutes, or at least a
quarter of an hour, with the certain conviction that in a few minutes
he should die. I was very anxious to hear how he would recall his
impressions. He remembered everything with extraordinary
clearness, and said that he would never forget a single one of those
minutes. Twenty paces from the scaffold round which the crowd and
the soldiers stood, three stakes were driven into the ground, there
being several prisoners. The first three were led to the stakes and
bound, and the white dress of the condemned was put on them. This
consisted of a long white shirt, and over their eyes white bandages
were bound so that they should not see the guns. Then in front of
each stake a firing party was drawn up. My friend was No. 8, so he
went to the stake in the third batch. A priest carried the cross to each
of them. My friend calculated that he had five minutes more to live,
not more. He said that these five minutes seemed to him an endless
period, infinitely precious. In these five minutes it seemed to him that
he would have so many lives to live that he need not yet begin to
think about his last moment, and in his mind he made certain
arrangements. He calculated the time it would take him to say good-
bye to his comrades; for this he allotted two minutes. He assigned
two more minutes to think one last time of himself, and to look round
for the last time. He remembered distinctly that he made these three
plans, and that he divided his time in this way. He was to die, aged
twenty-seven, healthy and strong, after having said good-bye to his
companions. He remembered that he asked one of them a
somewhat irrelevant question, and was much interested in the
answer. Then, after he had said good-bye to his comrades, came the
two minutes which he had set aside for thinking of himself. He knew
beforehand of what he would think: he wished to represent to himself
as quickly and as clearly as possible how this could be: that now he
was breathing and living, and that in three minutes he would already
be something else, some one or something, but what? and where?
All this he felt he could decide in those two minutes. Not far away
was the church, and the cathedral with its gilded dome was glittering
in the sunshine. He remembered that he looked at the dome with
terrible persistence, and on its glittering rays. He could not tear his
gaze away from the rays. It seemed to him somehow that these rays
were his new nature, and that in three minutes he would be made
one with them. The uncertainty and the horror of the unknown, which
was so near, were terrible. But he said that during this time there
was nothing worse than the unceasing thought: ‘What if I do not die?
What if life were restored to me now? What an eternity! And all this
would be mine. I would in that case make every minute into a
century, lose nothing, calculate every moment, and not spend any
atom of the time fruitlessly.’ He said that this thought at last made
him so angry that he wished that they would shoot him at once.”
Dostoievsky’s sentence consisted of four years’ hard labour in the
convict settlement in Siberia, and this ordeal was doubtless the most
precious boon which Providence could have bestowed on him. When
he started for prison he said to A. Milioukov, as he wished him good-
bye: “The convicts are not wild beasts, but men probably better, and
perhaps much worthier, than myself. During these last months (the
months of his confinement in prison) I have gone through a great
deal, but I shall be able to write about what I shall see and
experience in the future.” It was during the time he spent in prison
that Dostoievsky really found himself. To share the hard labour of the
prisoners, to break up old ships, to carry loads of bricks, to sweep up
heaps of snow, strengthened him in body and calmed his nerves,
while the contact with murderers and criminals and prisoners of all
kinds, whose inmost nature he was able to reach, gave him a
priceless opportunity of developing the qualities which were
especially his own both as a writer and as a man.
With the criminals he was not in the position of a teacher, but of a
disciple; he learnt from them, and in his life with them he grew
physically stronger, and found faith, certitude and peace.
At the end of the four years (in 1853) he was set free and returned
to ordinary life, strengthened in body and better balanced in mind.
He had still three years to serve in a regiment as a private soldier,
and after this period of service three years more to spend in Siberia.
In 1859 he crossed the frontier and came back to Russia, and was
allowed to live first at Tver and then at St. Petersburg. He brought a
wife with him, the widow of one of his former colleagues in the
Petrachevsky conspiracy, whom he had loved and married in
Siberia. Until 1865 he worked at journalism.
Dostoievsky’s nature was alien to Socialism, and he loathed the
moral materialism of his Socialistic contemporaries. Petrachevsky
repelled him because he was an atheist and laughed at all belief;
and the attitude of Bielinsky towards religion, which was one of
flippant contempt, awoke in Dostoievsky a passion of hatred which
blazed up whenever he thought of the man. Dostoievsky thus
became a martyr, and was within an ace of losing his life for the
revolutionary cause; a movement in which he had never taken part,
and in which he disbelieved all his life.
Dostoievsky returned from prison just at the time of the
emancipation of the serfs, and the trials which awaited him on his
release were severer than those which he endured during his
captivity. In January 1861 he started a newspaper called the
Vremya. The venture was a success. But just as he thought that
Fortune was smiling upon him, and that freedom from want was
drawing near, the newspaper, by an extraordinary misunderstanding,
was prohibited by the censorship for an article on Polish affairs. This
blow, like his condemnation to death, was due to a casual blunder in
the official machinery. After considerable efforts, in 1864 he started
another newspaper called the Epocha. This newspaper incurred the
wrath, not of the Government censorship, but of the Liberals; and it
was now that his peculiar situation, namely, that of a man between
two fires, became evident. The Liberals abused him in every kind of
manner, went so far as to hint that the Epocha and its staff were
Government spies, and declared that Dostoievsky was a scribbler
with whom the police should deal. At this same time his brother
Michael, his best friend Grigoriev, who was on the staff of his
newspaper, and his first wife, Marie, died one after another.
Dostoievsky was now left all alone; he felt that his whole life was
broken, and that he had nothing to live for. His brother’s family was
left without resources of any kind. He tried to support them by
carrying on the publication of the Epocha, and worked day and night
at this, being the sole editor, reading all the proofs, dealing with the
authors and the censorship, revising articles, procuring money,
sitting up till six in the morning, and sleeping only five out of the
twenty-four hours. But this second paper came to grief in 1865, and
Dostoievsky was forced to own himself temporarily insolvent. He had
incurred heavy liabilities, not only to the subscribers of the
newspaper, but in addition a sum of £1400 in bills and £700 in debts
of honour. He writes to a friend at this period: “I would gladly go back
to prison if only to pay off my debts and to feel myself free once
more.”
A publishing bookseller, Stellovsky, a notorious rascal, threatened
to have him taken up for debt. He had to choose between the
debtors’ prison and flight: he chose the latter, and escaped abroad,
where he spent four years of inexpressible misery, in the last
extremity of want.
His Crime and Punishment was published in 1866, and this book
brought him fame and popularity; yet in spite of this, on an occasion
in 1869, he was obliged to pawn his overcoat and his last shirt in
order with difficulty to obtain two thalers.
During all this time his attacks of epilepsy continued. He was
constantly in trouble with his publishers, and bound and hampered
by all sorts of contracts. He writes at this epoch: “In spite of all this I
feel as if I were only just beginning to live. It is curious, isn’t it? I have
the vitality of a cat.” And on another occasion he talks of his stubborn
and inexhaustible vitality. He also says through the mouth of one of
his characters, Dimitri Karamazov, “I can bear anything, any
suffering, if I can only keep on saying to myself: ‘I live; I am in a
thousand torments, but I live! I am on the pillory, but I exist! I see the
sun, or I do not see the sun, but I know that it is there. And to know
that there is a sun is enough.’”
It was during these four years, overwhelmed by domestic calamity,
perpetually harassed by creditors, attacked by the authorities on the
one hand and the Liberals on the other, misunderstood by his
readers, poor, almost starving, and never well, that he composed his
three great masterpieces: Crime and Punishment in 1866, The Idiot
in 1868, and The Possessed in 1871-2; besides planning The
Brothers Karamazov. He had married a second time, in 1867. He
returned to Russia in July 1871: his second exile was over. His
popularity had increased, and the success of his books enabled him
to free himself from debt. He became a journalist once more, and in
1873 edited Prince Meschtcherki’s newspaper, The Grazjdanin. In
1876 he started a monthly review called The Diary of a Writer, which
sometimes appeared once a month and sometimes less often. The
appearance of the last number coincided with his death. This review
was a kind of encyclopædia, in which Dostoievsky wrote all his
social, literary and political ideas, related any stray anecdotes,
recollections and experiences which occurred to him, and
commented on the political and literary topics of the day. He never
ceased fighting his adversaries in this review; and during this time he
began his last book, The Brothers Karamazov, which was never
finished. In all his articles he preached his Slavophil creed, and on
one occasion he made the whole of Russia listen to him and applaud
him as one man. This was on June 8, 1880, when he made a speech
at Moscow in memory of Pushkin, and aroused to frenzy the
enthusiasm even of those men whose political ideals were the exact
opposite of his own. He made people forget they were “Slavophils”
or “Westernisers,” and remember only one thing—that they were
Russians.
In the latter half of 1880, when he was working on The Brothers
Karamazov, Strakhov records: “He was unusually thin and
exhausted; his body had become so frail that the first slight blow
might destroy it. His mental activity was untiring, although work had
grown very difficult for him. In the beginning of 1881 he fell ill with a
severe attack of emphysema, the result of catarrh in the lung. On
January 28 he had hæmorrhage from the throat. Feeling the
approach of death, he wished to confess and to receive the Blessed
Sacrament. He gave the New Testament used by him in prison to his
wife to read aloud. The first passage chanced to be Matthew iii. 14:
“But John held Him back and said, ‘It is I that should be baptized by
Thee, and dost Thou come to me?’ And Jesus answered and said
unto him, ‘Detain Me not; for thus it behoves us to fulfil a great
truth.’”
When his wife had read this, Dostoievsky said: “You hear: Do not
detain me. That means that I am to die.” And he closed the book. A
few hours later he did actually die, instantaneously, from the rupture
of an artery in the lungs.
This was on the 28th of January 1881; on the 30th he was buried
in St. Petersburg. His death and his funeral had about them an
almost mythical greatness, and his funeral is the most striking
comment on the nature of the feeling which the Russian public had
for him both as a writer and as a man. On the day after his death, St.
Petersburg witnessed a most extraordinary sight: the little house in
which he had lived suddenly became for the moment the moral
centre of Russia. Russia understood that with the death of this
struggling and disease-stricken novelist, she had lost something
inestimably precious, rare and irreplaceable. Spontaneously, and
without any organised preparation, the most imposing and
triumphant funeral ceremony was given to Dostoievsky’s remains;
and this funeral was not only the greatest and most inspiring which
had ever taken place in Russia, but as far as its inward significance
was concerned there can hardly ever have been a greater one in the
world. Other great writers and other great men have been buried
with more gorgeous pomp and with a braver show of outward
display, but never, when such a man has been followed to the grave
by a mourning multitude, have the trophies and tributes of grief been
so real; for striking as they were by their quantity and their nature,
they seemed but a feeble and slender evidence of the sorrow and
the love to which they bore witness. There were deputations bearing
countless wreaths, there were numerous choirs singing religious
chants, there were thousands of people following in a slow stream
along the streets of St. Petersburg, there were men and women of
every class, but mostly poor people, shabbily dressed, of the lower
middle or the lower classes. The dream of Dostoievsky, that the
whole of Russia should be united by a bond of fraternity and
brotherly love, seemed to be realised when this crowd of men,
composed of such various and widely differing elements, met
together in common grief by his grave. Dostoievsky had lived the life
of a pauper, and of a man who had to fight with all his strength in
order to win his daily bread. He had been assailed by disease and
hunted by misfortune; his whole life seemed to have rushed by
before he had had time to sit down quietly and write the great ideas
which were seething in his mind. Everything he had written seemed
to have been written by chance, haphazardly, to have been jotted
down against time, between wind and water. But in spite of this, in
his work, however incomplete, however fragmentary and full of faults
it may have been, there was a voice speaking, a particular message
being delivered, which was different from that of other writers, and at
times more precious. While it was there, the public took it for
granted, like the sun; and it was only when Dostoievsky died that the
hugeness of the gap made by his death, caused them to feel how
great was the place he had occupied both in their hearts and in their
minds. It was only when he died that they recognised how great a
man he was, and how warmly they admired and loved him.
Everybody felt this from the highest to the lowest. Tolstoy, in writing
of Dostoievsky’s death, says: “I never saw the man, and never had
any direct relations with him, yet suddenly when he died I
understood that he was the nearest and dearest and most necessary
of men to me. Everything that he did was of the kind that the more
he did of it the better I felt it was for men. And all at once I read that
he is dead, and a prop has fallen from me.” This is what the whole of
Russia felt, that a support had fallen from them; and this is what they
expressed when they gave to Dostoievsky a funeral such as no king
nor Captain has ever had, a funeral whose very shabbiness was
greater than any splendour, and whose trophies and emblems were
the grief of a nation and the tears of thousands of hearts united
together in the admiration and love of a man whom each one of them
regarded as his brother.
III
Dostoievsky’s Character
Such, briefly, are the main facts of Dostoievsky’s crowded life.
Unlike Tolstoy, who has himself told us in every conceivable way
everything down to the most intimate detail which is to be known
about himself, Dostoievsky told us little of himself, and all that we
know about him is gathered from other people or from his letters;
and even now we know comparatively little about his life. He disliked
talking about himself; he could not bear to be pitied. He was modest,
and shielded his feelings with a lofty shame. Strakhov writes about
him thus:
“In Dostoievsky you could never detect the slightest bitterness or
hardness resulting from the sufferings he had undergone, and there
was never in him a hint of posing as a martyr. He behaved as if there
had been nothing extraordinary in his past. He never represented
himself as disillusioned, or as not having an equable mind; but, on
the contrary, he appeared cheerful and alert, when his health
allowed him to do so. I remember that a lady coming for the first time
to Michael Dostoievsky’s (his brother’s) evenings at the newspaper
office, looked long at Dostoievsky, and finally said: ‘As I look at you it
seems to me that I see in your face the sufferings which you have
endured.’ These words visibly annoyed Dostoievsky. ‘What
sufferings?’ he said, and began to joke on indifferent matters.”
Long after his imprisonment and exile, when some friends of his
tried to prove to him that his exile had been a brutal act of injustice,
he said: “The Socialists are the result of the followers of
Petrachevsky. Petrachevsky’s disciples sowed many seeds.” And
when he was asked whether such men deserved to be exiled, he
answered: “Our exile was just; the people would have condemned
us.”
The main characteristics of his nature were generosity, catholicity,
vehement passion, and a “sweet reasonableness.” Once when he
was living with Riesenkampf, a German doctor, he was found living
on bread and milk; and even for that he was in debt at a little milk
shop. This same doctor says that Dostoievsky was “one of those
men to live with whom is good for every one, but who are
themselves in perpetual want.” He was mercilessly robbed, but he
would never blame any one who took advantage of his kindness and
his trustfulness. One of his biographers tells us that his life with
Riesenkampf proved expensive to him, because no poor man who
came to see the doctor went away without having received
something from Dostoievsky. One cannot read a page of his books
without being aware of the “sweet reasonableness” of his nature.
This pervaded his writings with fragrance like some precious balm,
and is made manifest to us in the touching simplicity of some of his
characters, such as the Idiot and Alexis Karamazov, to read of whom
is like being with some warm and comforting influence, something
sweet and sensible and infinitely human. His catholicity consists in
an almost boundless power of appreciation, an appreciation of
things, persons and books widely removed from himself by accidents
of time, space, class, nationality and character. Dostoievsky is
equally able to appreciate the very essence of a performance got up
by convicts in his prison, and the innermost beauty of the plays of
Racine. This last point is singular and remarkable. He was universal
and cosmopolitan in his admiration of the literature of foreign
countries; and he was cosmopolitan, not because he wished to cut
himself away from Russian traditions and to become European and
Westernised, but because he was profoundly Russian, and had the
peculiarly Russian plastic and receptive power of understanding and
assimilating things widely different from himself.
When he was a young man, Shakespeare and Schiller were well
known, and it was the fashion to admire them. It was equally the
fashion to despise the French writers of the seventeenth century. But
Dostoievsky was just as enthusiastic in his admiration of Racine and
Corneille and all the great classics of the seventeenth century. Thus
he writes: “But Phèdre, brother! You will be the Lord knows what if
you say this is not the highest and purest nature and poetry; the
outline of it is Shakespearian, but the statue is in plaster, not in
marble.” And again of Corneille: “Have you read The Cid? Read it,
you wretch, read it, and go down in the dust before Corneille!”
Dostoievsky was constantly “going down in the dust” before the
great masterpieces, not only of his own, but of other countries, which
bears out the saying that “La valeur morale de l’homme est en
proportion de sa faculté d’admirer.”
Dostoievsky never theorised as to how alms should be given, or
as to how charity should be organised. He gave what he had, simply
and naturally, to those who he saw had need of it; and he had a right
to this knowledge, for he himself had received alms in prison. Neither
did he ever theorise as to whether a man should leave the work
which he was fitted by Providence to do (such as writing books), in
order to plough fields and to cut down trees. He had practised hard
labour, not as a theoretic amateur, but as a constrained professional.
He had carried heavy loads of bricks and broken up ships and swept
up heaps of snow, not out of philosophy or theory, but because he
had been obliged to do so; because if he had not done so he would
have been severely punished. All that Tolstoy dreamed of and aimed
at, which was serious in theory but not serious in practice, that is to
say, giving up his property, becoming one with the people, ploughing
the fields, was a reality to Dostoievsky when he was in prison. He
knew that hard labour is only real when it is a necessity, when you
cannot leave off doing it when you want to; he had experienced this
kind of hard labour for four years, and during his whole life he had to
work for his daily bread. The result of this is that he made no
theories about what work a man should do, but simply did as well as
he could the work he had to do. In the words of a ballade written by
Mr. Chesterton, he might have said:
“We eat the cheese,—you scraped about the rind,
You lopped the tree—we eat the fruit instead.
You were benevolent, but we were kind,
You know the laws of food, but we were fed.”
And this is the great difference between Dostoievsky and Tolstoy.
Tolstoy was benevolent, but Dostoievsky was kind. Tolstoy theorised
on the distribution of food, but Dostoievsky was fed and received
alms like a beggar. Dostoievsky, so far from despising the calling of
an author, or thinking that it was an occupation “thin sown with aught
of profit or delight” for the human race, loved literature passionately.
He was proud of his profession: he was a great man of letters as well
as a great author. “I have never sold,” he wrote, “one of my books
without getting the price down beforehand. I am a literary proletarian.
If anybody wants my work he must ensure me by prepayment.”
There is something which resembles Dr. Johnson in the way he
talks of his profession and his attitude towards it. But there is,
nevertheless, in the phrase just quoted, something bitterly ironical
when one reflects that he was a poor man all his life and incessantly
harassed by creditors, and that he derived almost nothing from the
great popularity and sale of his books.
“Dostoievsky,” writes Strakov, “loved literature; he took her as she
was, with all her conditions; he never stood apart from literature, and
he never looked down upon her. This absence of the least hint of
literary snobbishness is in him a beautiful and touching
characteristic. Russian literature was the one lodestar of
Dostoievsky’s life, and he cherished for it a passionate love and
devotion. He knew very well that when he entered the lists he would
have to go into the public market-place, and he was never ashamed
of his trade nor of his fellow-workers. On the contrary, he was proud
of his profession, and considered it a great and sacred one.”
He speaks of himself as a literary hack: he writes at so much a
line, three and a half printed pages of a newspaper in two days and
two nights. “Often,” he says, “it happened in my literary career that
the beginning of the chapter of a novel or story was already set up,
and the end was still in my mind and had to be written by the next
day.” Again: “Work from want and for money has crushed and
devoured me. Will my poverty ever cease? Ah, if I had money, then I
should be free!”
I have said that one of the main elements of Dostoievsky’s
character was vehement passion. There was more than a vehement
element of passion in Dostoievsky; he was not only passionate in his
loves and passionate in his hates, but his passion was unbridled. In
this he resembles the people of the Renaissance. There were
perilous depths in his personality; black pools of passion; a seething
whirlpool that sent up every now and then great eddies of boiling
surge; yet this passion has nothing about it which is undefinably evil;
it never smells of the pit. The reason of this is that although
Dostoievsky’s soul descended into hell, it was purged by the flames,
and no poisonous fumes ever came from it. There was something of
St. Francis in him, and something of Velasquez. Dostoievsky was a
violent hater. I have already told how he hated Bielinsky, the
Socialists and the materialists whom he attacked all his life, but
against Tourgeniev he nourished a blind and causeless hatred. This
manifests itself as soon as he leaves prison, in the following
outburst: “I know very well,” he writes, “that I write worse than
Tourgeniev, but not so very much worse, and after all I hope one day
to write quite as well as he does. Why, with my crying wants, do I
receive only 100 roubles a sheet, and Tourgeniev, who possesses
two thousand serfs, receives 400 roubles? Owing to my poverty I am
obliged to hurry, to write for money, and consequently to spoil my
work.” In a postscript he says that he sends Katkov, the great
Moscow editor, fifteen sheets at 100 roubles a sheet, that is, 1500
roubles in all. “I have had 500 roubles from him, and besides, when I
had sent three-quarters of the novel, I asked him for 200 to help me
along, or 700 altogether. I shall reach Tver without a farthing. But, on
the other hand, I shall shortly receive from Katkov seven or eight
hundred roubles.”
It must not be forgotten that the whole nature of Dostoievsky, both
as man and artist, was profoundly modified by the disease from
which he suffered all his life, his epilepsy. He had therefore two
handicaps against him: disease and poverty. But it is his epilepsy
which was probably the cause of his dislikes, his hatreds and his
outbreaks of violent passion. The attacks of epilepsy came upon him
about once a month, and sometimes, though not often, they were
more frequent. He once had two in a week. His friend Strakov
describes one of them thus: “I once saw one of his ordinary attacks:
it was, I fancy, in 1863, just before Easter. Late in the evening, about
eleven o’clock, he came to see me, and we had a very animated
conversation. I cannot remember the subject, but I know that it was
important and abstruse. He became excited, and walked about the
room while I sat at the table. He said something fine and jubilant. I
confirmed his opinion by some remark, and he turned to me a face
which positively glowed with the most transcendent inspiration. He
paused for a moment, as if searching for words, and had already
opened his lips to speak. I looked at him all expectant for fresh
revelation. Suddenly from his open mouth issued a strange,
prolonged, and inarticulate moan. He sank senseless on the floor in
the middle of the room.”
The ancients called this “the sacred sickness.” Just before the
attacks, Dostoievsky felt a kind of rapture, something like what
people say they feel when they hear very great music, a perfect
harmony between himself and the world, a sensation as if he had
reached the edge of a planet, and were falling off it into infinite
space. And this feeling was such that for some seconds of the
rapture, he said, you might give ten years of your life, or even the
whole of it. But after the attack his condition was dreadful, and he
could hardly sustain the state of low-spirited dreariness and
sensitiveness into which he was plunged. He felt like a criminal, and
fancied there hung over him an invisible guilt, a great transgression.
He compares both sensations, suddenly combined and blended in a
flash, to the famous falling pitcher of Mahomet, which had not time to
empty itself while the Prophet on Allah’s steed was girdling heaven
and hell. It is no doubt the presence of this disease and the
frequency of the attacks, which were responsible for the want of
balance in his nature and in his artistic conceptions, just as his
grinding poverty and the merciless conditions of his existence are
responsible for the want of finish in his style. But Dostoievsky had
the qualities of his defects, and it is perhaps owing to his very illness,
and to its extraordinary nature, that he was able so deeply to
penetrate into the human soul. It is as if the veil of flesh and blood
dividing the soul from that which is behind all things, was finer and
more transparent in Dostoievsky than in other men: by his very
illness he may have been able to discern what is invisible to others.
It is certainly owing to the combined poverty and disease which
made up his life, that he had such an unexampled insight into the
lives and hearts of the humble, the rejected, the despised, the
afflicted, and the oppressed. He sounded the utmost depths of
human misery, he lived face to face with the lowest representatives
of human misfortune and disgrace, and he was neither dispirited nor
dismayed. He came to the conclusion that it was all for the best, and
like Job in dust and ashes consented to the eternal scheme. And
though all his life he was one of the conquered, he never ceased
fighting, and never for one moment believed that life was not worth
living. On the contrary, he blessed life and made others bless it.
His life was “a long disease,” rendered harder to bear and more
difficult by exceptionally cruel circumstances. In spite of this,
Dostoievsky was a happy man: he was happy and he was cheerful;
and he was happy not because he was a saint, but because, in spite
of all his faults, he radiated goodness; because his immense heart
overflowed in kindness, and having suffered much himself, he
understood the sufferings of others; thus although his books are
terrible, and deal with the darkest clouds which can overshadow the
human spirit, the descent into hell of the human soul, yet the main
impression left by them is not one of gloom but one of comfort.
Dostoievsky is, above all things, a healer and a comforter, and this is
because the whole of his teaching, his morality, his art, his character,
are based on the simple foundation of what the Russians call
“dolgoterpjenie,” that is, forbearance, and “smirenie,” that is to say,
resignation. In the whole history of the world’s literature there is no
literary man’s life which was so arduous and so hard; but
Dostoievsky never complained, nor, we can be sure, would he have
wished his life to have been otherwise. His life was a martyrdom, but
he enjoyed it. Although no one more nearly than he bears witness to
Heine’s saying that “where a great spirit is, there is Golgotha,” yet we
can say without hesitation that Dostoievsky was a happy man, and
he was happy because he never thought about himself, and
because, consciously or unconsciously, he relieved and comforted
the sufferings of others. And his books continued to do so long after
he ceased to live.
All this can be summed up in one word: the value of Dostoievsky’s
life. And the whole reason that his books, although they deal with the
tragedies of mankind, bring comfort to the reader instead of gloom,
hope instead of despair, is, firstly, that Dostoievsky was an altruist,
and that he fulfilled the most difficult precept of Christianity—to love
others better than oneself; and, secondly, that in leading us down in
the lowest depths of tragedy, he shows us that where man ends,
God takes up the tale.
IV
Poor Folk and the Letters from a Dead House
In his first book, Poor Folk, which was published in 1846, we have
the germ of all Dostoievsky’s talent and genius. It is true that he
accomplished far greater things, but never anything more
characteristic. It is the story of a poor official, a minor clerk in a
Government office, already aged and worn with cares, who battles
against material want. In his sombre and monotonous life there is a

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Principles of Water Law and

Administration National and

Principles of International Law Concise Hornbook Series

Principles of International Investment Law Ursula

Energy Law in Europe: National, EU and International

Water Law, Policy and Economics in Italy: Between

International law and armed conflict fundamental

Principles of International Criminal Law 4th Edition

Principles of International Environmental Law 4th

Privacy Law Enforcement and National Security 3rd

National and International

Routledge is an imprint of the Taylor & Francis Group, an informa business

2 Earliest water regulations and management 13

2.5 Ancient Mesopotamian water regulations and management 17

3 Roman and intermediate period 33

3.2.4.3 Protection from harmful effects of water and control of

4 Definition and sources of water law 61

5.2 Original Roman water law principles and their inﬂuence in

6 Development by region 111

6.3.3 The legal status of water resources 132

7 Possible contents of and reasons for water law 167

7.16.6 Groundwater pollution control 199

8 Water resources planning and water law 211

9 National water resources administration 223

9.2.5 Institutions according to their legal régime 227

10 International water resources law in general 241

10.3.8.1 Decisions of international courts 255

11 International water resources law: major issues 265

11.3 Non-navigational uses of water 278

12 Developments in the law of transboundar y aquifers 311

13 International water resources administration 329

13.8 Form 353

Acknowledgements to the second and the present editions

Acknowledgements to the first edition

The Author: Dante A. Caponera (1921–2003)

The Reviser: Marcella Nanni

Preface to the second edition

1.1 Water and the society

1.2 The need for a water policy, legislation and

1.3 The interdisciplinarity of the subject

1.4 The physical context

1.4.1 The hydrologic cycle

1.4.2 Definition and analysis of precipitation

1.4.3 Analysis of flow

1.4.4 Groundwater and its behaviour

1.4.5 The notion of aquifer

1.4.6 Weather modification

1.4.7 Climate change

token, navigation may constitute an ‘ecological’ mode of transportation of merchandise

1.4.8 Integrated water resources management (IWRM)

1.5 The socio-economic context

1.5.1 Water demand

1.5.2 Water pricing

1.5.4 Cost analysis

1.6 The purpose of the book

Earliest water regulations and

2.1 The importance of water regulations throughout history

2.2 The difficulty of studying early water regulations

2.3 The development of earliest water law principles 3