Water Rights in 21st Century Continental Law: Current Trends, Contradictions and Problems in Theory and Practice

MARTÍN, LIBER

Boulder

Mesa redonda; Colloquium at Law School.; 2012

Natural Resources Law Center. Colorado University at Boulder.

Theoretical legal principles of water usage position water as a public good, dictate administrative permit allocation systems, define water rights as property rights, and acknowledge public interest in water rights as a legal requirement. In practice, these principles often conflict with, rather than complement, one another. This presentation aims to define and interpret the contradictions and problems that emerge when these theoretical principles are applied to real world water usage. An analysis of the ways in which these theoretical principles have governed and continue to govern water rights law in Spain, Argentina and Chile indicates that they are somewhat malleable. By examining the ways in which these major legal principles have supported different laws in different contexts and discussing beneficial/effective use and water rights forfeitures as well as water rights terms and conditions and in-stream flows, this talk begins to unpack the discrepancies that frame contemporary controversies in Continental Water Rights law. More importantly, this analysis reveals a permanent tension between theoretical principles and the ways that we apply them as different national water rights law continue to evolve. Therefore, we conclude that, in most countries, water rights evolve in a very difficult and changeable balance between public and private property, interests, and values. Ultimately, this presentation argues that, notwithstanding the differences, observing the similarity between the theoretical bases that dictate usage and permit systems in continental law and the US, the same permanent tension between theory and applications dictate US water law, especially in the West. This presentation encourages American water law experts to broaden their analytical scope to include more international comparative studies and more consistently seek out dialogue with their peers in other countries.