Legal regimes governing groundwater and access to drinking water: The cases of Switzerland, India, and South Africa

In an era of increasing water scarcity, property regimes governing water basins play a crucial role in determining access to this vitally important resource. For local populations, their survival depends on the availability of water, an availability that is often imperilled by and competes with the demands of agriculture and industry. As 30 per cent of the world’s fresh water is contained in groundwater basins and only 1 per cent is visible surface water (the remaining 69 per cent is captured in ice), the legal regime governing the management and distribution of groundwater also has a major impact on the water and food security of the population. During the past century, governments all over the world have come under public pressure to reform the existing property regimes in order to ensure access to water for all people and sustainable resource management. This chapter's hypothesis is that private control of groundwater is not compatible with universal access to water. The chapter seeks to prove this statement by comparing the groundwater regimes in Switzerland, India and South Africa and their respective socio-economic impacts. Over the course of the twentieth century, Switzerland’s legal groundwater regime has changed. While the system of public/private ownership of water is upheld, the Federal Court has substantially limited the scope of private ownership of groundwater. In India, even though water law reforms try to address some of the issues of water management, groundwater, which is the single most important source of drinking and irrigation water in India, remains in the hands of private landowners. South Africa recently undertook fundamental changes to its groundwater regime through the enactment of the National Water Act 36 of 1998, which introduced the public trust doctrine as the basis for water management.