Prior to World War I, the use of water in Lebanon, Iraq, Saudi Arabia, and Yemen was governed by Islamic law. Majallat al-Ahkam al-Adlia (Majallat), which can be described as the codification of Islamic civil law under the Ottoman Empire, devoted several articles to the issue of water rights, including the use of water in agriculture.
Since the end of World War I a number of laws and regulations dealing with water have been enacted in each of the above-mentioned countries.
II. Legal Framework
A. Islamic Law Related to Water Rights
In many respects the basic principles set out in the Majallat are still in effect in the four jurisdictions. Book X of the Majallat, which deals with joint ownership, contains several provisions devoted to water rights and use. Article 1234 declares a general principle that water is free and jointly owned by the public. Some exceptions to this general principle are described thereafter. Article 1235 declares that water flowing underground is not the “absolute” property of any particular person, implying that certain rights may be acquired over such water supplies. Article 1236 provides that wells that have not been made by the labor of any particular person are free property of the public, implying that a well drilled by an individual shall be his property. In terms of rivers, article 1239 makes a distinction between those with continuous flow and those with flow that is exhausted after passing through a limited number of properties. Rivers in the first category cannot be privately owned while those in the second categories can be privately owned.
The right to take possession of water for drinking or irrigation is discussed in Section IV of Chapter IV of Book X. Article 1266 provides that all persons and animals have the right to take water for drinking. Articles 1267 and 1268 specify that this right extends to water over which other persons have absolute ownership and, under certain circumstances, allow people to enter the property of others for the purpose of taking such water.
The right to take water for irrigation is more restrictive. Article 1265 provides that everyone may irrigate his lands from rivers that are not owned by others and may dig canals for this purpose and construct mills; however, if the water used overflows and causes damage to other people, or if it is cut off completely and navigation becomes impossible, then such use shall not be permitted.
B. Current Laws
The above provisions of the Majallat are still in force in Lebanon. The Civil Code (Obligations and Contracts Law) of 1932 did not alter these provisions. Pursuant to article 1106 of this Code the only provisions of the Majallat that are abrogated are those that contradict or are incompatible with the present Code.
Article 2(17) and (18) of Yemeni Law No. 33 of 2002 concerning water defines water rights as those acquired through customary practices or under Islamic law; article 6 provides that the owners of such rights shall continue to exercise them over water resources in a manner that does not wrongfully affect these resources or the right of others. Articles 27 to 29 essentially incorporate the same basic provisions of the Majallat. For example, article 27 specifically provides that all water rights acquired before or after the issuance of the law shall be preserved and protected and cannot be infringed upon except in extreme circumstances and for fair compensation. Article 28 specifically addresses the right over water harvested from rain and flood water by stating that traditional irrigation rights related to such waters shall be maintained in accordance with local customary practices. Article 29 provides that traditional rights of usufruct over waters flowing from springs and other natural sources such as wells not deeper than 6o meters shall continue to be maintained and protected and shall be transferred with the land; if the land is divided the water right shall be prorated accordingly.
3. Saudi Arabia
In Saudi Arabia, article 1 of the Regulation Concerning the Protection of Water Sources issued by Royal Decree No. M/34 of the year 1400 hijri states that all sources of water are public property provided that rights established according to Islamic law are not infringed upon.
Articles 1052 to 1058 of the Iraqi Civil Code of 1951 codify the rights under Islamic law of land owners to use water for irrigation.
III. Powers of Government Authorities in Charge of the Management of Water Resources
Each of the four jurisdictions manages the use of water, including in agriculture, through different and varied government authorities. For example, Lebanese Law No. 221 of 2000 has organized the water management through the Ministry of Energy and Water and four separate public establishments.
It may be argued that provisions giving the government or any of its subsidiary authorities in these jurisdictions the power to allocate water rights, such as article 3 of the Iraqi Irrigation Law of 1962 and article 4 of the Saudi Royal Decree No. M/34, can be interpreted as only applying to new water resources and that they must be applied in a manner consistent with the rights mentioned above.
The four jurisdictions are consistent in requiring that owners obtain permits for water well drilling. This is provided for in articles 24 to 46 of Yemeni Law No. 33 of 2002 and articles 6 to 8 of Saudi Royal Decree M/34 of 1400 hijri. In Lebanon, requirements and a sample permit application are available on the website of the Ministry of Energy and Water. In Iraq, information on the website of the Ministry of Water Resources indicates that the Ministry is in charge of supervising the drilling process.
Prepared by Issam M. Saliba
Foreign Law Specialist
 Al-Majallah al-Ahkam al-Adaliyyah (The Majelle) – The Civil Code of the Ottoman Empire (Hanafi), available at http://www.global-islamic-finance.com/2009/07/al-majallah-al-ahkam-al-adaliyyah.html (in English).
 Law No. 33 of 2002 (Yemen), available at http://www1.umn.edu/humanrts/arabic/Yemeni_Laws/ Yemeni_Laws72.pdf (in Arabic).
 Royal Decree No. M/34, Regulation Concerning the Protection of Water Sources (Saudi Arabia), http://www.boe.gov.sa/ViewSystemDetails.aspx?lang=ar&SystemID=112 (in Arabic).
 Civil Code of 1951 (Iraq), available at http://www.iraq-ild.org/LoadLawBook.aspx?SP=IDX&SC =120120013721926&Year=1951&PageNum=1 (in Arabic).
 Law No. 221 of 2000 (Lebanon) available at http://www.energyandwater.gov.lb/adminpages/page/ DownloadPageFile.asp?PageFile_ID=24 (in Arabic).
 Irrigation Law of 1962 (Iraq), available at http://www.iraq-ild.org/LoadLawBook.aspx? SP=REF&SC=101120053458875&Year=1962&PageNum=1 (in Arabic).
 Requirements for Drilling Wells Deeper than 150 Meters for Various Uses, Ministry of Energy and Water, http://www.energyandwater.gov.lb/pages.asp?Page_ID=68 (last visited Aug. 13, 2013).
Last Updated: 09/16/2014