«Managing Blue Gold New Perspectives on Water Security in the Levantine Middle East Mari Luomi (editor) Managing Blue Gold New Perspectives on Water ...»
Islam is often described as a value system, which prescribes a way of life that goes beyond the performance of religious rituals. The Arabic word for religion, dīn, appears 90 times in the Quran and, in essence, it describes an integrated code of behaviour which deals with various topics. Islam provides a holistic approach to existence and it does not distinguish between the sacred and the secular. Therefore, there is also no differentiation between human beings and nature. 243 The Arabic word ma’, water, is mentioned 63 times in the Quran and has a specific religious significance for Muslims through wudu, ablution, and ghusl, bathing.244 In the ethical foundation of Islam there are three basic principles which can collectively be seen as providing the basis of an Islamic conservation practice. They are tawhid, mizan and khalīfa. Tawhid means unity of the Creator and His creation and forms the basis of the holistic approach. Mizan is the principle that every aspect of creation holds together because there is a balance. Maintaining natural systems (mentioned in the Quran in verses 13:8, 15:21 and 25:2) can therefore be understood as maintaining mizan. Khalīfa has generally been understood by Muslims to mean ‘vice-regent’, thus referring to stewardship or trust, amanat, and identifies the responsibility and the role of the human being as a vice-regent of the earth. Within the hierarchy of creation, the Quran accords humans a special status as God’s khalīfa.
244 Hussein A. Amery, ‘Islam and the Environment’, in Naser I. Faruqui, Asit K. Biswas, and Murad J. Bino (eds.) Water Management in Islam (Tokyo: United Nations University Press, 2001), pp. 39-48.
FIIA REPORT 25/2010 99 will (taqwa) and are thus accountable for their actions. Humans will accordingly be held accountable for any acts of destruction committed against the earth (2:205, 7:85). Wastefulness, overconsumption and hoarding are also forbidden (7:31). The protection and regulation of water and watercourse are central requests in the Quran and are to be regarded as common property (54:28). 245 Among the important hadiths concerning water are Prophet Muhammad’s prohibition to his followers to waste water, even in situations where it is abundant or when it is used for holy purposes (Musnad ii, 22), and his saying: ‘Muslims have [a] common share in three things: grass (pasture), water and fire (fuel)’ (Abu-Dawood
3470) is telling.246 Prophet Muhammad also decreed that no more than an ankle depth of water could be taken for irrigation. One ankle was to be sufficient for one season. According to the hadith of Muslim (553), Muhammad forbade urination into stagnant water. Muslim scholars have annexed penalties to the misuse of water, including the pollution or degradation of clean water. This could lead to the punishing or fining of acts of pollution through modern contemporary legislation.247 General concepts in sharia with explicit references to the environment are harim and hima. The institution of the protected zone, harim, prohibits the development of certain areas, mainly riverbanks, for the purposes of protecting watersheds. A related institution is preservation, hima, which usually entailed the protection of trees and wildlife. Some traditional harims and himas still exist today, but they are greatly reduced from former times and are on the wane. 248 There are two clear principles regulating water demand management in the Quran. The first is that the supply of water is fixed (40:18) and the second is that water should not be wasted (7:31). The interpretation is that water demand must at some point be managed because supplies cannot be increased indefinitely. There are two hadiths which illustrate this even more clearly. According 245 Richard C. Foltz, ‘Ecology and Religion: Ecology and Islam’, in Lindsay Jones (ed.) Encyclopedia of Religion, Second Edition (Detroit: Thomson Gale, 2005), pp. 2651-2654.
246 Naser I. Faruqui, ‘Islam and Water Management: Overview and Principles’, in Faruqui et al.
(eds.) Water Management in Islam (Tokyo: United Nations University Press, 2001), pp. 1-32.
247 Faruqui, ‘Islam and Water’, pp. 3-4.
248 Foltz, ‘Ecology and Religion’, p. 2652.
100 FIIA REPORT 25/2010 to al-Bukhari (1.200), the Prophet used to perform ablution with one mudd (approximately two-thirds of a litre) and used to take a bath equal to 2-3½ litres. Water was not to be wasted even when the ablution was performed on the bank of a large river (al-Tirmidhi 427).
Considering these clear references, contemporary Muslim societies could promote water conservation more widely. 249
Water distribution priorities
Over time, three specific water rights have been established. The first of these is the law of thirst or the right of humans to drink or slake their thirst; the second is the right of cattle and household animals;
and the third is the right of irrigation. The legal texts contain detailed instructions on the distribution of water resources.
In the Levant, water allocation patterns are heavily biased: 80% to the agricultural sector, 10% to industry and 10% to the domestic sector. Despite heavy and often inefficient irrigation, the reality is that most countries in the Levant do not have sufficient water for national food self-sufficiency. According to Naser I. Faruqui, one of the world’s leading researchers in the field of water management, the priority should therefore shift from national food self-sufficiency to national food security or to regional food self-sufficiency. The link to Islamic law is the rule that irrigation comes third in the hierarchy, after humans and cattle. As the rapid population growth in the region forces states to renegotiate their water priorities, intersectoral reallocation of water according to Islamic law would be one option.250 The low coverage of water supplies in the MENA region is problematic also from the Islamic point of view. The reliance on informal supplies of water bought from private vendors increased the water price in the 1990s from ten to twenty times more per litre than the rates paid by residents receiving a piped water service. In some municipalities the price rose in the 1990s to eighty or one hundred times more than regular water rates. This is due to informal settlers in and around cities that live in unplanned communities, as well as the legal or political restrictions imposed on public utilities. The strong
249 Faruqui, ‘Islam and Water’, pp. 5-6.250 Ibid., p. 16.
FIIA REPORT 25/2010 101 sense of equity in Islam is clearly not being fulfilled and the right to slake one’s thirst (haq al shafa) is being compromised.251 Water distribution has clear-cut legislation in Islam. In general terms, the rules are based on the principle of benefiting all those who share the watercourse, which includes groundwater and wells. Water rules are laid down according to the origin of the water source and these are divided according to the size of the source, the kind of water it provides and its usage. The sources are divided into rivers, water springs, wells and rainwater. Rivers are divided into natural rivers, large and small rivers, human-dug canals and irrigation channels.
Large public rivers (anhūr ‘amma) such as the Tigris, the Euphrates and the Nile belong, according to the standard textbooks of Islamic law, to the entire community and everyone can benefit from them, providing that no harm is caused to others. The right of flowing water (haqq al-majra) is recognized and protected in Islam.252
Water cannot be privately owned in its natural state since it is considered common property and a gift from God. Restrictions on common use increase with the growing scarcity but possessors with usufruct rights, according to Islam, may not withhold water that is surplus to their own needs. Farmers who develop land for irrigation agriculture have the right to a fair share of the available water.
Irrigation water may not be withheld from livestock unless damage to irrigation facilities or failure of crops is likely to result. 253 Even though water cannot be privately owned in the strictest sense, three categories of water ownership have developed based on the conclusions of Muslim scholars. Since it is better according to a hadith (Muslim 1727) to go to the woods and cut and sell timber than it is to beg people for help, individuals and groups have the right to use, sell and add value costs to most categories of water. If the water 251 Ibid., pp. 4-5.
252 Dien, ‘Islam and the Environment’, pp. 55-56.
253 Othman Abd-Ar-Rahman Llewellyn, in Richard C. Foltz, Frederick M. Denny & Azizan Baharuddin (eds.) ‘The Basis for a Discipline of Islamic Environmental Law’, Islam and Ecology.
A Bestowed Trust (Cambridge: Harvard University Press, 2003), pp. 185-247.
102 FIIA REPORT 25/2010 is in personal containers, treatment plants, distribution systems or reservoirs, it is considered private property and the owner has the right to use, sell or trade it. The second category of water ownership is restricted private property, which includes lakes, streams and springs located on private land. The owner has special rights and can trade water within these limits, but also has certain obligations towards others. Public property is the third form of water ownership and refers to the water in rivers, lakes, glaciers, aquifers and seas, and from snow and rainfall. This kind of water in its natural state cannot be bought or sold. However, if infrastructure and knowledge have been invested in withdrawing it, then the water becomes private property.254 Since recovering costs for providing water is allowed in Islam, a problematic question is what a fair tariff would then be. According to Islam, a fair tariff will lead to greater equity across society. At the same time, full-cost pricing is allowed in accordance with the religion. Different countries have solved this in various ways and, for example, in Iran irrigation water must be sold at the average cost price with both operation and maintenance costs and capital depreciation included.255 In Islam, riparian landowners have senior usufruct rights in the case of a naturally occurring water source that is not sufficiently plentiful to allow unrestricted use. The upstream riparian user may take the amount of water allocated to his crops and release the surplus water to the next user downstream, who in turn releases his surplus to the next and so on until the needs of all farms are satisfied or the flow has been exhausted. If a new farm is cultivated upstream, the farms that were first established take priority and the new farm receives a share only after the previously established farms have been irrigated. This is meant to ensure that future users will not harm a farmer’s investment in the resource.256 It does not, however, mean that upstream riparian states can ignore downstream states. When it comes to large public rivers, all communities along the river have the right to benefit from the water.
254 Faruqui, ‘Islam and Water’, p. 12.
255 Ibid., pp. 13-14.
256 Llewellyn, ‘The Basis for a Discipline’, pp. 204-205.
Islam and international law Water management principles should not only guide interactions between individuals but also between sovereign states due to the simple fact that water does not follow national boundaries. On an international level, the International Law Commission (ILC) drafted an outline of thirty-three articles concerning global water management, which was approved by the United Nations General Assembly in 1997. The Convention on the Law of the Non-Navigational Uses of International Watercourses (A/RES/51/229) is still awaiting ratifications by member states before it can enter into force. Among its central principles are the equitable and reasonable utilization of international rivers (article 5), the avoidance of significant harm and compensation (article 7), cooperation among riparian states (article 8), and the protection and preservation of international rivers and associated eco-systems (articles 5, 8, 20 and 21). 258 These international law principles are in accordance with Islam because they are based on universal values. Moreover, the selfsame values are embodied in the Islamic understanding of water as a gift from God and hence that all creatures have the right to drink, that water should be apportioned equitably for other uses, and that no one has the right to withhold surplus water from others. The concept of avoiding significant harm to others is illustrated by the hadith ‘he who eats to his fill while his neighbour goes without food is not a believer’ (Shu’ab Al-Imam-Baihaqui), which can be applied to drink as well as food. The word ‘neighbour’ here can be understood as an individual or a neighbouring state. If harm occurs, according to Islamic law, it carries a liability and the one against whom it is committed must be compensated. In addition, relevant universal values are embodied
257 Ibid., p. 205.258 Faruqui, ‘Islam and Water’, p. 21.
104 FIIA REPORT 25/2010 in the emphasis of Islam on protecting and preserving water and its ecosystems by avoiding fassad (mischief or harm).259 However, universal values and international conventions can at best only serve as non-enforceable guidelines when states decide to act otherwise. Many international water-sharing conflicts currently exist, including the disputes between Syria, Iraq and Turkey on the sharing of the Euphrates and the Tigris. Because international law-based water management principles are strongly and explicitly supported by Islam and since Islam can be argued to be a potentially important basis for settling disputes, an Islamic council authorized to mediate and judge in such cases could be a viable option for predominantly Muslim nations to consider, as Faruqui has suggested.
Islamic law has a considerable amount of legislation that could provide a possible basis for international arbitration when disagreements and disputes arise.260