جستجوی مقالات مرتبط با کلیدواژه « حقآبه » در نشریات گروه « فقه و حقوق »

Based on Article 45 of the Constitution, public waters are considered part of the Anfal, but according to the opinion of the jurists of the Guardian Council that it is against Sharia to count the waters as Anfal, Article (1) of the Law on the Equitable Distribution of Water is set in such a way that public waters are considered part of the commons. he does. On the other hand, the examination of the opinions of jurists and different jurisprudential approaches in the field of the nature of public waters shows that it is possible to pursue different approaches to the exploitation of public waters based on considering public waters as part of public waters. According to the legal status of irrigation rights, the question arises as to what is the optimal jurisprudential approach in the challenges of using rights in public waters. The findings of this research with a descriptive-analytical approach from the base of reference to library sources showed that there are the necessary jurisprudential foundations to consider public waters as enfal, but considering public waters as part of the public commons, as well as the state of their being enfal, the legal confrontation with the rights in Cases such as the definition of the right to irrigation or the legal effects of the reduction of traditional rights by the government in order to modify the pattern of water consumption in the laws of the five-year development plans, should not be based on the argumentative approach of considering public waters, which allows any amount of private ownership in public waters.

The use of water resources in Islamic jurisprudence has certain rules and regulations. The water right is one of the legal titles that has been discussed in the jurisprudence of tejārah (trade), ijārah (leasing) and iḥyā’ mawāt (reviving dead land). This article tries to examine the ways to transfer the water right property and the ways of establishing it in Islamic jurisprudence with a comparative approach. The water right is one of the financial rights that can be transferred implicitly or independently through payment or free of charge. The Common-pool resource is one of the guarantees of the water right, which is based on the fact that the public is equal in using it. The acquisition of water resources and transfer the water right property through the denotation that is known in Islamic jurisprudence as muāyāt, inheritance and will, are among other ways to transfer the water right property.

Due to its predominantly arid and water-deficient climate, Iran faces the challenge of dehydration. The rate of exploitation and consumption of water resources plays some role. Iranian civil law, which is the first law governing the processes of water resources exploitation, inspired by Shi’i  law, has based its relevant rules on theories such as absolute ownership of land, priority, privacy, and acquisition. The theoretical bases of the legal system of water resources management is thus based on private property, which along with the development of new technologies of drilling and exploitation has led to uncontrolled consumption of water resources. Therefore, the revision of these theoretical foundations is necessary in order to limit and regulate the exploitation of water resources. The first theory listed above, absolute ownership of land,  crystallized in Article 96 of the Civil Code, holds that whoever owns a piece of land has the absolute ownership of the water resources under it and can use them however he wishes without any restrictions. Apart from giving rise to disputes among, A second theory, the right of precedence, regulates the use of  water resources based on the date of first discovery and exploitation, which is an implication of the precedence rule in Shi’i law according to which prearrangements for reclamation of resources is a basis for priority in possession. . A third theory, territory of land (harim), is another basis granting the owner of a piece of land  surrounding a surface water source such as a river or lake the right to own and exploit these water resources. Accordingly, the ownership of water is a function of the land ownership, and there is no right to transfer the ownership of water, independent of the adjacent lands. Some jurists in these cases have relied on the rule ‘Al-Aqrab fa al-Aqrab’ (‘Who is closer takes priority’), based on the fact that whoeveris closer to the water stream, is superior to others, and Article 156 of the Civil Code has been influenced by this theory. But the theory of attainment,which has more supporters in Shi’i law, is based on the possession of water., According to this everyone owns any amount of water that he or she obtained through the possession and branching of surface water or digging wells and aqueducts. Article 149 of the Civil Code regarding the possibility of acquiring surface water and Article 160 of the same Code governing the digging and acquisition of wells and aqueducts have been taken from this theory.  These theories, which have led to the private ownership and management of water resources, have led to the development of mechanized methods of exploitation and, in turn, to the destruction of water resources. Articles of civil law and other regulations that are influenced by the aforementioned theories, on the one hand, and a tendency towards a state-centered view of public ownership, on the other, as in the Law of Equitable Distribution of Water, which recognizes the government as the owner of water, by applying proprietary behaviors, makes it an instrument for its economic and social policies, has permitted the unwarranted exploitation and has exacerbated the water crisis. Therefore, based on the environmental needs and the international trends viewing water as a national asset belonging to future generations, this article seeks  a theory that can be based on environmental, jurisprudential and legal principles and provides grounds for  revising laws and regulations governing the ownership and management of water resources, in particular Articles 149 to 160 of the Civil Code, which make water a common property that is open to free acquisition and private ownership.  Accordingly, Article 1 of the Law of Equitable Distribution of Water, enacted in 1982, which is influenced by Article 45 of the Iranian Constitution, has a great potential to change the approach to the ownership of water, based on the concept of public trust, private ownership to one based on the concept of trust. The article relies on the explicit use of the word trust in the Law to lead to more effective policies and regulations in the protection of water resources and in the issuance of licenses for its exploitation, and to prevent unrelenting competition in the consumption of this common resource and uncontrolled harvesting and drastic reduction ofthe country's water reservoirs. This article uses an analytical and descriptive research. Relying on library resources it studies different perspectives in order to answer the question what is the basis of the right to use water resources in the jurisprudential andlegal system of Iran and which theoretical bases can be selected for it. to ensure protection and preservation of water resources. It first suggests and examines various theories, and then seeks to formulate, under the final theory which is based on the concept of public trust, a view in accordance with environmental conditions and water resources crisis based on Islamic legal principles. By amending existing laws and regulations, water can be used as a trust in the hands of the government in the public interest.