The Quest for Standard Tests in Prioritizing Water Use Rights in Ethiopia: Reasonable Use, Beneficial Use or ?Beyond'
| Author | Zbelo Haileslassie Embaye |
| Position | Zbelo Haileslassie Embaye (BA in Sociology, LLB, LLM in Tax and Investment Laws); Lecturer at Mekelle University, School of Law. Email: zbelo40@gmail.com |
| Pages | 177-216 |
177
The Quest for Standard Tests in
Prioritizing Water Use Rights in Ethiopia:
Reasonable Use, Beneficial Use or ‘Beyond’
Zbelo Haileslassie Embaye
Abstract
The use of water is a basic and universal human right while the right to use water
is one of the most contested rights. There are common problems and debates in
relation to setting the order of priority to promote equitable utilization aligned with
equitable allocation under water resources governance. This article examines
different literature, theories, laws and policies to search the standard tests. There
are priorities related to conflicting interests. Moreover, there are problems of
depletion, pollution, water grabbing, wastage of water, and water crisis that are
attributable to lack of comprehensive regulations, or confusions in putting policy
options. The regulatory tools lack clarity and sufficiency with regard to the
incorporation of standard tests. There is thus the need for a relatively exhaustive
order of priorities that embody human rights to water and other situational and
policy justifications. The justifications are expected to reinforce the reasonable-
beneficial use standard tests with due flexibility in re-ordering priorities where
they are incompatible. The technical application of the standard tests in ordering
priorities can control water grabbing and wastage of water. This requires policy
options that are helpful to avoid water grabbing and water wastage thereby
facilitating the attainment of the ‘highest social and economic benefits’.
Key terms
Water use, reasonable use, beneficial use, priority, Ethiopia, standard test, water
grabbing, water wastage
DOI http://dx.doi.org/10.4314/mlr.v10i1.6
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Introduction
Water is one of the most essential, shared, and scarce natural resources that
cause conflict and politically contested processes in relation to it s use in
international, national, and local settings.1 There are different understandings as
Zbelo Haileslassie Embaye (BA in Sociology, LLB, LLM in Tax and Investment Laws);
Lecturer at Mekelle University, Scho ol of Law. Email: zbelo40@gmail.com
1 Mollinga P.P. (2008), ‘Water, politics and development: Framing a political sociology of
water resources management’, Water Alternatives 1(1) pp, 7-23. See also, for example,
Zemede Abebe et al. (2011), ‘Water Futures: Assessing pathways, synergies & trade offs
in alleviating poverty through sustainable ecosystem services in Sub-Saharan Africa’,
178 MIZAN LAW REVIEW, Vol. 10, No.1 September 2016
to how the basic natural resources including air, land and water are governed. It
is stated that “….air is unowned and unownable; land is as fully privatize-able
as the law allows, and water is publicly owned but amenable to private rights of
use or a usufruct, to give it its formal name”.2 However, water has been
historically used, since the early civilizations, for different uses and tools; all
societies had their own approaches in regulating access to water and conceptions
of water rights.3 Most human rights activists argue that water law and water
rights are highly associated with the universal human right instruments, and
domestic laws adopt the human rights to water.4 Water rights can be widely
defined and applied as “the right to use or enjoy the flowing water in a stream”.5
The proponents of the human rights approach to water rights suggest the need
for ‘innovative response’ through separate water laws dealing with specific and
technical issues even if it is a duplication of effort and wastage of resource.6
Although early water use laws solely regulated issues linked to navigational
uses of shared water resources,7 later developments have necessitated the
regulation of the non-navigational uses of shared water resources.8 This shows
the need for ‘substantive water law reforms’ in general.9
Under different national laws, the types of water use and water use rights
maybe defined differently. “Water law, and thus water rights, reflect economic,
Proceedings of the Situational Analysis 3 Ethiopia & the River Awash Basin, RIPPLE
Office, Addis Ababa (Ethiopia) & the Water Futures Consortium, p, 20. Within River
Awash Basin, “...Conflicts and disputes have also arisen as a result of irrigation
development in the Middle and Lower Valleys that have displaced the ‘Afar’ grazing
lands.”
2 Joseph L. Sax, (2012) ‘Reserved Public Rights in Water’, Vermont Law Review, Vol.
36:535, p. 535.
3 Stephen Hodgson (2006) Modern water rights, Theory and practice, Food and Agriculture
Organization of the United Nations, FAO Legislative Study 92, p. 9.
4 International Human Rights Law Clinic, (May 2013) The Human Right to Water Bill in
California, University of California, Berkeley, School of Law, p, 6. Citing Legislative
Intent—Assembly. Bill No. 685, ASSEM. J. 6817 (2011-2012 Reg. Sess.) The bill’s
legislative intent was “to create a state policy priority and direct state agencies to explicitly
consider the human right to water within their relevant administrative processes, measures
and actions.”
5 Anthony Scott and Georgina Coustalin, (1995), ‘The Evolution of Water Rights’, Natural
Resources Journal, Vol 36, pp, 821-979.
6 International Human Rights Law Clinic, supra note 4, p. 1.
7 Salman M. A. Salman, (2007). ‘The Helsinki Rules, the UN Watercourses Convention and
the Berlin Rules: Perspectives on International Water Law’, Water Resources
Development, Vol. 23, No. 4, pp 625–640.
8 Id., p. 625.
9 Stephen Hodgson, supra note 3, p. 1.
The Quest for Standard Tests in Prioritizing Water Use Rights in Ethiopia 179
social and cultural perceptions of water”.10 The types of water uses in a given
state may vary depending on existing situations of the state. In day-to-day
parlance, water use right may be the right to use the water for consumptive and
non-consumptive uses. Common uses of water from both types can be stated as
the use of water for drinking, other domestic uses, irrigation of land and
agricultural uses, industrial uses for electricity production other industrial uses,
aquaculture, recreational uses, navigation and water transportation. Other uses
may be stated impliedly as the common ty pes of water uses and water use
rights.11
Under Ethiopian Water Law, water use is defined as the “… use of water for
drinking, irrigation, industry, power generation, transport, animal husbandry,
fishing, mining and uses of water for othe r purposes”.12 The author mainly
argues that clear and sufficient orders of priorities should be embodied under
water policies and laws in establishing relative use rights because such clarity is
necessary to avoid water use problems and to facilitate the attainment of the
objectives of the law, i.e., “highest social and economic benefits”.13 This article
deals with the issue of whether the reasonable or beneficial use; or the
combinations of both supported by other principles is/are incorporated under
Ethiopia’s policies and laws. It also examines whether the policy and legal
instruments are clear and sufficient in embodying standard tests and orders of
priorities. The article forwards potential options on how the standard tests may
be used to prioritize orders of water use rights. It highlights the manner in which
the standard14 tests avoid conflicting interests, ‘water grabbing’, and wastage of
water with a view to facilitate the attainment of the law’ s objective. In doing so,
it examines the interplay of different conceptual frameworks.
Among the potential standard tests, ‘reasonable use’ is one of the minimum
standard tests referred to in this article because it strikes a balance of interests in
the regulation of riparian rights and duties.15 The ‘beneficial use’ as one of the
water use right restrictions under the prior appropriation doctrine is referred to
10 Id., p. 4.
11 Id., p.53. Citing, Article 65 of the Act 29/198, Spanish Water Law.
12 FDRE Council of Ministers Ethiopian Water Resources Management Regulations No.
115/2005, Art 2(6).
13 FDRE Water Resources Management Proclamation 197/2000, para.1 of its preamble. The
main objective of the proclamation is to reach the “highest social and economic benefits”.
14 A. Rambow et al. (1967) ‘Methodology in Establishing Water Quality Standards’, Journal
(Water Pollution Control Federation), Vol. 39, No. 7, pp, 1155-1163. “A standard is
proposed as an objective to be a chieved or maintained immediately or within a short
period from the time of its establishment. Setting of a standard implies consideration of
the present limiting factors of technology, economics, and public policy.”
15 Anthony Scott and Georgina Coustalin, supra note 5, 871.
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