Answer to a Question
The Shari’ah Rules for Dealing with Rivers
Question:
Are there Shari’ah rules regarding the management of rivers, whether they flow entirely from source to mouth within the Khilafah State, or pass through it and other countries? May Allah reward you with Khayr.
Answer:
In Islam, there are solutions for every problem that has occurred, is occurring, or will occur. Allah (swt) perfected this Deen:
الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ لَكُمُ الْإِسْلَامَ دِينًا
“This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion.” (QS Al-Ma'idah [5]: 3)
He (swt) made it obligatory for us to refer to Shari’ah law in every matter, small or large, saying:
وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ وَاحْذَرْهُمْ أَنْ يَفْتِنُوكَ عَنْ بَعْضِ مَا أَنْزَلَ اللَّهُ إِلَيْكَ
“And judge between them by what Allah has revealed and do not follow their inclinations and beware of them, lest they tempt you away from some of what Allah has revealed to you.” (QS Al-Ma'idah [5]: 49)
The word “Ma” (what), as is known, is a form of generality (umum). Thus, Allah (swt) made it obligatory to rule by Islam in every matter without exception—that is, without fragmentation: “and beware of them, lest they tempt you away from some of what Allah has revealed to you.” Allah, the Almighty, the All-Wise, did not leave any problem facing people in this world without clarifying its solution in Islam, either through a direct text or by deduction (istinbat) according to the rules of Shari’ah principles (Usul al-Fiqh). Allah (swt) created us and clarified for us what rectifies our affairs, for He is the Most Kind, the All-Aware:
أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ
“Does He who created not know, while He is the Subtle, the Acquainted?” (QS Al-Mulk [67]: 14)
Therefore, yes, there are Shari’ah rules for dealing with rivers, whether they are within the Khilafah State or pass through it and other countries... I will mention some of these matters to you briefly, and they will be implemented in full, Allah willing, upon the establishment of the Khilafah State, which we pray to Allah will be soon; indeed, Allah is Almighty and All-Wise:
- Great rivers are Public Property (Milkiyyah ‘Ammah). They fall under two types of public property. Firstly, they are considered community utilities, as indicated by the saying of the Prophet (saw):
الْمُسْلِمُونَ شُرَكَاءُ فِي ثَلَاثٍ: فِي الْكَلَإِ، وَالْمَاءِ، وَالنَّارِ
“The Muslims are partners in three things: pastures, water, and fire.” (Narrated by Abu Dawood)
Secondly, they are among the substances whose natural formation prevents individuals from possessing them exclusively, derived from the Hadith of the Prophet (saw):
مِنًى مُنَاخُ مَنْ سَبَقَ
“Mina is the stopping place for whoever arrives first.” (Narrated by At-Tirmidhi)
The details of all this are found in the book Funds in the Khilafah State and in The Economic System in Islam, so please refer to them.
- It has been understood by Muslims from the time of the Prophet (saw) until our current era that great rivers like the Tigris, Euphrates, and Nile are public property; no one can exclusively own them or their benefit. The State enabled people to benefit from great rivers for drinking and domestic use, watering livestock (known as shafah), irrigating crops (known as shirb), and for travel and transportation. The State used to maintain the riverbanks and clean the rivers (known as kary al-anhar) so that people could benefit from them. All of this is clear when reviewing history books and Islamic Fiqh books. I will mention some Fiqh texts that demonstrate the Muslims' concern for great rivers and facilitating their use:
- It is stated in the book Tuhfat al-Fuqaha by As-Samarqandi (died approx. 540 AH):
(...The great rivers like the Euphrates, Tigris, Jayhun, and others: no one has an exclusive right to them; rather, they are the right of the public. Everyone who is able to irrigate their land from them has the right to do so. The same applies to installing watermills, waterwheels (daliyah), and the like, provided it does not cause harm to the great river. If it causes harm, it is prohibited. Furthermore, the dredging (kary) of great rivers is the responsibility of the Sultan (the State) using funds from the Bayt al-Mal (Public Treasury), because the benefit returns to the general public, so the expense for that is from the public funds, which is the Bayt al-Mal...) End quote.
- It is stated in the Kuwaiti Fiqh Encyclopedia:
(Kary: Removing silt from the riverbed, digging it, and repairing its banks. The cost of dredging and all necessary repairs come from the Bayt al-Mal of the Muslims because it is for the public interest. If there is nothing in the Bayt al-Mal, the ruler obliges the people to repair the river if they refuse, in order to prevent harm and achieve the public interest...
Dredging public rivers like the Nile, Tigris, and Euphrates is the responsibility of the Sultan from the Bayt al-Mal of the Muslims, because the benefit of dredging is for the general body of Muslims, so its expense is from the Bayt al-Mal, based on the saying of the Prophet (saw): "Revenue is tied to liability" (Al-Kharaj bi al-Daman)... and if there is a fear of flooding from these rivers, the Sultan must repair their embankments from the Bayt al-Mal.)
- It is stated in the book Durar al-Hukkam fi Sharh Majallat al-Ahkam:
- ([Article 1238] Unowned Public Rivers)
Article (1238) - (Public rivers that are not owned—meaning rivers that have not entered into private channels or the property of a group—are also permissible for all, such as the Nile, the Euphrates, the Danube, and the Tundzha). Public rivers that are not owned, which are those that have not entered into the private channels of a group, are not the property of anyone, just like seas and lakes. Rather, they are permissible (mubah), and therefore everyone has the right to benefit from them provided it is not harmful to the public, as explained in Article (1254). This includes opening a canal and running water from it to his land, irrigating his land, setting up a mill, and establishing a waterwheel or a landing place (mashra'ah).
However, if this is harmful to the public—such as the water overflowing and ruining people's rights or preventing the passage of ships—then all people have the right to prevent it. This applies to rivers. As for the sea, it may be used even if it causes harm, as stated by Al-Quhistani, and this will be discussed in the explanation of Articles (1263 and 1264).
All people have the right of shafah (drinking/domestic use) in these public rivers, whether it is harmful to the public or not. Unowned public rivers are like the Nile River flowing in the Egyptian region, the Euphrates River flowing in Iraq, the Tigris, the Shatt al-Arab (which results from the confluence of the Tigris and Euphrates), the Danube River (Tuna), a part of which is in Romania, and the Tundzha River, also called the Maritsa, which flows in the city of Edirne. These great rivers are not the property of anyone because ownership, according to Article (1249), is achieved through acquisition and taking possession, and acquiring these rivers and taking possession of them is impossible. As long as these rivers cannot be acquired, they are shared among the people according to Article (1234), and the right of benefit is established for all people according to Article (1265)...
[(Article 1265) Everyone has the right to irrigate their land from unowned rivers]
Article (1265) - (Everyone has the right to irrigate their land from unowned rivers, and has the right to dig a canal or a channel to irrigate their lands and to set up a mill, but it is stipulated that there is no harm to others. Therefore, if the water overflows and harms the people, or the river water is completely cut off, or the passage of ships is halted, it is prohibited.)
Everyone has the right of shirb (irrigation) and shafah in unowned rivers; that is, he can irrigate his lands. Thus, if someone revives dead land near the said river, he has the right to dig a canal and run the river water to his revived land. This applies if the place from which the canal is opened is his property. Everyone also has the right to drink water from the said river, perform wudu from it, wash their clothes, and dig a canal or channel in their property or in dead land, whether new or as an addition to irrigate their land and set up a mill...
Similarly, if there is a large unowned river near someone's vineyard, and the owner of the vineyard wants to set up a waterwheel on the river to irrigate his vineyard and there is no harm to others, the owners of vineyards and waterwheels located downstream from his vineyard have no right to prevent him based on their lack of consent.
You undoubtedly know that the Majallat al-Ahkam was what was applied in the Ottoman State, meaning that these rulings mentioned above were applied and adopted by the State. All of this indicates how the Islamic State deals with the utilization of great rivers...
If the great river is located entirely from its source to its mouth within the authority of the Islamic State, there are no issues in utilizing its water and navigating it according to the Shari’ah rulings, some of which we mentioned above. It does not matter if the river flows through multiple provinces (wilayat), because all provinces are within the State's authority, and their division within specific geographical boundaries is an administrative matter. If the utilization of great rivers requires certain arrangements between different provinces, the Khalifah adopts the administrative coordination measures that ensure the utilization is achieved by the various provinces in the best possible manner.
If organizing the use of a great river and benefiting from its waters requires the State to intervene by setting detailed regulations, the State will establish administrative systems to regulate irrigation, transportation, and other matters. In light of current material and technological development, it is most likely that the State will be the one to organize irrigation projects, deliver water to homes and farms, and organize travel and movement on rivers. The State may impose fees for these uses and benefits, provided it places the resulting profit in the Bayt al-Mal of the Muslims under the chapter of public property revenues.
If parts of the great river are located outside the authority of the Islamic State, the State, if necessary, enters into bilateral agreements with the relevant countries according to Shari’ah rulings to regulate the use of the river without prejudice to the interests of the Islamic State and in accordance with the Shari’ah rulings related to public properties. If other countries commit aggression by preventing the great river's water from reaching the Islamic State or by exploiting it in a way that harms the interests of Muslims, the State takes political, economic, and military measures that enable it to remove the harm caused by other countries, even if it reaches the point of taking the right by waging war against the aggressing state.
I draw attention to the fact that riparian states on great rivers did not, in previous ages, prevent each other from benefiting from the waters of the great river (the international river). Rather, all riparian states used to benefit from the river without issue. International river problems only appeared in the era of Western colonialism, which used them as a means of colonization and for exercising political and economic pressure on other countries.
The right to public property belongs to the subjects of the Islamic State and not to other countries. Therefore, the State imposes fees on other countries' use of rivers located within the authority of the Islamic State, and it may sell them water or electricity produced from them or the like. It places the profits realized from that in the Bayt al-Mal to be spent in the manner permitted by Shari’ah rulings.
In the regulations it sets for benefiting from great rivers, dividing their waters, and navigating them, the State takes into account that these rivers do not dry up, their courses are not interrupted, their waters are not polluted, and no other harm occurs. It immediately seeks to remove any harm that occurs unintentionally. It adopts water policies characterized by justice in dividing water shares and, at the same time, by preserving these water sources in the best possible way. All of this is inseparable from the general economic and environmental policies drawn up by the State.
Related to what has been mentioned is the State’s regulation of the utilization of fisheries in great rivers and enabling people to fish, etc.
I hope this brief answer is sufficient... and the full details will be manifest at the appropriate time, Allah willing.
12 Safar 1438 AH 12/11/2016 CE