A basic assumption here is that non violent access to water rights is based on the principle of human justice, upon which it’s logically put forward a method of water right classification by the types of concrete justice principle of water rights empowerment. It’s defined the water rights meta type which means the basic constituent element of water rights system determined by the basic justice principles for water right empowerment. Justice is the primary value of social institution (Rawls, 1988). As a basic social system, the core value of property right system also lies in justice. The justice principles is the intrinsic basis of property right establishment. The same is true for water rights systems empowerment. By summarizing the existing water rights cases, five justice principles of water rights empowerment have been confirmed. And the corresponding water rights meta types have been identified.
1) The principle of spatial vicinity and riparian rights
The spatial vicinity means that water rights was empowered based on the justice principle of spatially adjacent to water sources. This principle was already reflected in the Napoleonic Code of 1804. Article 664 stipulated how to obtain the right to use water resources: “A property owner of real property (land) adjacent to a moving body of water (river), if the body of water is not public property, can take water from the river course that flows through his land and use it to irrigate his land.” It was incorporated into English Common law and formed the riparian principle which was recognized by the law. The acquisition of riparian water rights depended on the spatial position of the land along the bank of the river. Naturally, the owners of land along the river bank hold complete rights of the water on the condition that they do not harm older users’ rights of using the water (Kinyon, 1936). These rights are still adopted by regions with abundant water resources, such as England, France, and the eastern United States. However, riparian rights have a limitation, as they are only associated with riverside land ownership. The owners usually hold equal rights and do not have priority orders, except during dry periods when the users residing in upper-river catchments may be prioritized owing to the superior location. Moreover, the owners will not be deprived of their riparian rights for not using the water but will lose the rights for unreasonable usage, for example, allowing people without riparian rights to dig ditches and draw water (Samuel, 1918).
2) The principle of temporal sequence and priority water rights
The principle of temporal sequence means that property rights was empowered according to the order in which property was obtained. In the Roman legal system, the basic principle was that the ownerless property belongs to the first prior possessor. This principle was also recognized by many Roman jurists. For example, Gaius pointed out: “Objects which not belonged to anyone belonged to the first possessor by natural reason” (Gaius, 1996). This principle was also used in the water rights empowerment and formed the meta type of priority water rights. Priority water rights are assigned by temporal order––whoever used the water first owned the priority water rights (also called “first in time, first in right”) (Tarlock, 2000). This type of water rights originated following the resource exploitation practices occurring in the western United States during the 19th century. Such water rights practices have been institutionalized to the present day in these areas (Joseph, 2005). Different from riparian rights, owners of this right have been given a clear priority order over time. The owners will lose their priority water rights if they do not use the water in a given period of time, which is usually five years. The owners must ensure "beneficial use" of the water; otherwise, their water rights will be taken away.
3) The principle of human water demand and demand-weighted water rights
Water resources is one of the essential material conditions for human survival. The right to clean drinking water is a fundamental human right (United Nations, 2010). So water rights empowered under the principle of human water demand can ensure the human’s basic rights and the fair distribution of water resources. The demand-weighted water rights distribute water rights depend on the demand for water. The water quota is allocated proportionally based on the predicted demand or actual usage in each area during a certain period. For example, under the “87 Yellow River water allocation plan” in China, water resources were distributed according to the human water demand. In order to alleviate water conflicts, the State Council has issued the “87 Yellow River water allocation plan” (State Planning Commission of China, Ministry of Water Resources and Electric Power, 1987). According to the actual use of water in 1980 and the predicted water resources demand in 2000, the available water resources were distributed proportionally among nine provinces (Qinghai, Sichuan, Gansu, Ningxia, Inner Mongolia, Shanxi, Shanxi, Henan, and Shandong) within the basin as well as two provinces (Tianjin and Hebei) external to the basin (Wang, Dong, Wang, & Liu, 2008).
4) The principle of spatial location and time requirement combination and rotation water rights
The principle of spatial location and time requirement combination means that water rights are empowered by a combination of space location and time requirement. Different parts of the river basin or irrigation district can use the water resources on a rotational time order - always starting from the lower end and ending at the upper end of the irrigation district in one round of irrigation, and the time period allocated for each user are corresponding to water requirement related to irrigation area. As per the literature, the oldest rotational water rights system dates to 1158 AD in the Xianghu irrigation district in Xiaoshao county, East China (Huang, 2012). This type of water rights system was designed to restrict the time required for irrigation and the size of the canal outlet based on the area of the land to be irrigated. An irrigation water quota would be allocated to each district, from higher to lower areas, on a sequential (rotational) basis, such that all areas would receive fair irrigation water. One type of rotation right is known as the equal-water right (Jun Shui Quan). This doctrine is used in many irrigation districts of China even today (Shen, 2004). In the Heihe river basin in Gansu province of China, equal-water rights systems (Jun Shui Zhi) have been implemented since the Qing dynasty. The canal outlets upstream are closed at the same time to produce intensive discharge downstream to guarantee water supply for downstream activities in a fixed period. However, the equal-water rights system has changed considerably. The old equal-water rights systems did not consider water used for ecological purposes, so the environments of downstream areas deteriorated seriously. To protect the ecological environment by considering the ecological use of water, a water allocation plan is stipulated.
5) The principle of ecological protection and ecological water rights
In the past, the water required by ecological environment was not given much priority (Cong and Ni, 2006; Zhang and Zhang, 2008). In the peak period of water use, the water use for ecological environment was always allocated after satisfying other urgent uses. The effects of the alteration or halt of water for ecological environment may take longer to show damages, and it would be too late once the damages occurred. These damages may lead to high costs or may even be irreparable (Li & Xie, 2003). In order to protect the ecological environment on which people live, the principle of ecological protection was put forward. Ecological water rights are empowered based on this principle. It emphasizes the minimum amount of water required for maintaining the balance of an ecosystem and protecting the ecological environment from deterioration (Cao et al., 2011). Many governments have recognized the importance of ecological water rights. In China, in the second half of the 1990s, the State Council decided that some excessive occupation of water use for ecological environment must be returned to the ecosystem for aiding the rehabilitation of the damaged ecology in the northwest inland basins, including Heihe, Talimuhe, and Shiyanghe river basins (Jia et al., 2012). In Heihe river basin which has the prominent contradiction of water resources in history, the State Development Planning Commission approved “The water allocation scheme in 1992” in order to restore the ecological environment of the Ejina River (Gong, 2002). And in 1997, the State Council approved “The water quantity allocation scheme of Heihe trunk stream” that particularly considered the ecological water requirements of the downstream (Zhong et al., 2014). The task of delivering water resources to downstream and restoring the ecosystem of downstream have been accomplished preliminarily.
The hierarchical system of water rights: water rights meta type, unit water rights system, and mixed water rights system
The water rights system in reality is a complex hierarchy system which can be divided into three levels. Water rights meta types are the most basic elements of complex water rights systems. There are five water rights meta types base on the justice principles of empowerment: riparian rights by spatial vicinity, priority water rights by time sequence, demand-weighted water rights by human water demand, rotation water rights by spatial location and time requirement combination, and ecological water rights by ecological protection.
Further, unit water rights systems are the smallest actual, uniform, independent water right management units and are composed of either a single or several kinds of water rights meta types. There are four common types of unit water rights systems (riparian, priority, rotation, and quantity proportion) for water distribution to terminal users. The riparian rights system is merely constituted by the riparian rights meta type. Basins with relatively abundant water resources, such as basins in Britain, Canada, and the eastern United States, have adopted the riparian rights system. Priority water rights system are composed of the single priority rights meta type. These were originally derived from the occupied areas in the western United States and are still the main water rights system in the basins there (Tarlock, 2000). The rotation water rights system is composed of the rotation water rights meta type. It has been adopted in many irrigation districts in which the irrigation sequence is from the end to the head of the canal or the inverse, with limitations in the time for each branch.
Compared with the above unit water rights systems, the quantity proportion water rights system is more complex and may empower water rights partly based on the historic priority rights, or according to the combination of human demand-weighted and ecological water rights meta types, or according to agreements made on the whole-basin level, which may inherit various types of historical water rights and consider future requirements. For example, the “87 water allocation plan” in Yellow River basin in China allocated water proportionally based on the principle of water resources demand, meanwhile considering the water resources requirement of ecological environment. In the Arkansas river basin, water resources were allocated proportionally among the states in the basin according to the “Contract among states” in 1949 and “Arkansas river basin contract between Kansas and Oklahoma” in 1965 (Harjo, 2016). It is worth noting that the rotation water rights system is generally implemented in irrigation areas or small basins. So the main unit water rights systems studied in this paper contain three types––the riparian rights system, priority water rights system, and quantity proportion water rights system.
Finally, the mixed water rights system is the mixture of unit water rights systems within one jurisdictional unit or big basin. It may present as the parallel or mosaic structure of unit water rights systems in one large basin/region, but without overlapping. For example, in the United States, the eastern part implements the riparian rights system, whereas the western part implements the priority water rights system. While in the Colorado River basin, the quantity proportion water rights system is implemented at the level of the whole basin between Mexico and the United States, as well as between several states within the United States; however, the priority water rights system is also adopted within some sub-basins.
The relationship among water rights meta types, unit water rights systems and mixed water rights systems is similar to the relationship among atom, molecule and mixture. The water right meta type is similar to atom which constitutes the molecule. The unit water rights system composed of water rights meta types is similar to molecule. While the mixed water rights system is similar to mixture matter which is composed of unit water rights systems.