Routledge Handbook of Water Law and Policy

Alistair Rieu-Clarke, Andrew Allan, Sarah Hendry, Alistair Rieu-Clarke, Andrew Allan, Sarah Hendry

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138121201
• eBook ISBN: 9781317309123
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Water plays a key role in addressing the most pressing global challenges of our time, including climate change adaptation, food and energy security, environmental sustainability and the promotion of peace and stability. This comprehensive handbook explores the pivotal place of law and policy in efforts to ensure that water enables positive responses to these challenges and provides a basis for sound governance.

The book reveals that significant progress has been made in recent decades to strengthen the governance of water resource management at different scales, including helping to address international and sub-national conflicts over transboundary water resources. It demonstrates that 'effective' laws and policies are fundamental drivers for the safe, equitable and sustainable utilization of water. However, it is also shown that what might constitute an effective law or policy related to water resources management is still hotly debated. As such, the handbook provides an important and definitive reference text for all studying water governance and management.

PART 1

Comparative national water law and policy

1
CUSTOMARY WATER RIGHTS AND LEGAL PLURALISM

Barbara van Koppen

Introduction

Customary (or ‘local’) water law governs the water investments and uses by the majority of citizens in low- and middle-income countries. These are the rural and peri-urban small-scale water users with diversified agriculture-based livelihoods. They depend in many ways on water. Since time immemorial, they have invested in water infrastructure and institutional arrangements to adjust to the vagaries of climate and use water throughout the seasons for their multiple domestic and productive water needs. Yet, hardly any low- or middle-income country recognizes customary water arrangements in their statutory water laws. Bolivia is a rare exception to a rule of formal denial, forced conversion and erosion of customary law by statutory law (Roth et al. 2005; Boelens et al. 2007).

Paradoxically, the opposite holds in high-income countries: wherever customary water law occurs, this is recognized as functional, accepted and nurtured. An example is the Water Tribunal of Valencia in Spain, which was constituted more than 1,000 years ago. The same holds at much larger scales, as Bruns (2005) writes:

Acceptance of traditional water rights, even when these have not been formally registered, has been a key principle underlying river management in Japan. Existing users were not forced to register merely to defend their access. Instead, the law established the principle that they have legal standing to protect their interests when necessary. The River Laws of 1896 and 1964 provided a formal basis in state law, through which agencies and courts could take account of existing rights. The principle of being ‘deemed to have obtained permission’ illustrates one way of reducing conflicts between state and local law without forcing local rules to explicitly conform to the criteria and formulations of state law.

This chapter aims to unravel this paradox, with a focus on permit systems. Permit systems (or license or concession systems; all terms refer to the same tool) are widely promoted across the globe as the supposedly most effective form of statutory law amidst plural water laws. While already almost universally adopted across low- and middle-income countries in Latin America and Africa, more Asian states and countries have also started adopting permit systems as a strongly promoted core ingredient of integrated water resource management (IWRM) (Van Koppen et al. 2014b).

In disentangling this paradox, we acknowledge legal pluralism as the co-existence of several, often overlapping normative frameworks according to which people interact with each other with regard to a bundle of rights and obligations vis-à-vis water resources (Von Benda-Beckmann et al. 1998). Society’s sources of legitimacy of these frameworks vary, and reflect power relations (Boelens and Dávila 1998). Accordingly, water laws include customary (or ‘local’ or ‘community-based’), religious, statutory and so-called ‘project law’. The latter are the – often implicit – bundle of rights and obligations that public infrastructure projects create (Meinzen-Dick and Nkonya 2007).

The various regimes can blend. For example, customary and religious law can overlap. ‘Customary law’ can also refer to a formal codification of local arrangements as perceived by officials. Codification risks ‘freezing’ vital elements of local arrangements (Boelens et al. 2005). In order to avoid confusion about such blends, many scholars prefer the terms ‘living customary law’ or ‘local law’ (Hellum et al. 2015). Moreover, unlike the terms ‘customary’ or ‘traditional’, the term ‘local law’ captures the highly dynamic nature of small-scale water users’ livelihoods and investments and community-based institutional arrangements. This chapter will refer to ‘local’ law. Blending also occurs as so-called ‘forum shopping’, in which people combine elements of each framework to best suit their interests. For example, women may refer to their constitutional rights to contest exclusion from prevailing male-dominated customary arrangements. Blending is contested when one normative framework, including claims to ownership, is imposed, even with violence, at the expense of the other. Thus, small- or large-scale users with a formal permit can claim lawful access to water in areas with customary arrangements and use physical force to actually prevent local contesters from accessing the same sources (Van Eeden 2014).

Hodgson (2016, n.p.) proposes a useful distinction between formal and informal water rights regimes, or, as he calls it, formal and informal ‘water tenure’. He defines water tenure as ‘the relationships, whether legally or customarily defined between people, as individuals or groups, with respect to water resources’. He proposes an exhaustive identification of various typologies of ‘water tenure’ that, moreover, explicitly seeks the inputs of many more disciplines than lawyers alone. His typology of tenure arrangements includes:

• those that are defined by formal law (‘traditional’ formal water rights, ‘modern’ formal water rights, regulatory licensing, agency control, water supply contracts, commonhold water tenure, investment contracts, de minimis uses, exempt commercial uses and reserves/minimum flow requirements), as well as

• those that are not defined by formal law (customary or local law water tenure, water tenure under religious law, informal tenure, assumed and impossible tenure and unrecognized tenure).

Governance of water tenure, and also water tenure itself, are elements of water governance as a whole. Unlike Hodgson, we propose to explicitly include human rights to water as one of the various formal legal frameworks that govern people’s mutual relationships with regard to water. The links between human rights framework and water governance are increasingly invoked (Hellum et al. 2015).

The analysis by Shah (2007) is particularly relevant for tracing why local water law is the dominant law for the majority, but denied in permit systems in low- and middle-income countries (although cherished for a minority in high-income countries’ water laws). He makes the more encompassing distinction between formal and informal institutional arrangements within low-, middle- and high-income economies at large, and water economies in particular. As shown in Figure 1.1, the nature of the water economies and their institutional arrangements are inextricably linked to economic development. In low-income countries, most water users are primary water users directly taking water from the source and investing in small-scale water infrastructure for self-supply. Local institutional arrangements are embedded in the prevailing feudal or tribal environments. In this context, the preoccupation of the state and development partners used to be, and should continue to be, support to infrastructure development in a welfare mode.

Figure 1.1 Community-based water law and water resources management reform in developing countries

Source: Shah (2007)

In contrast, in high-income formalized economies, water provision is largely organized by state-regulated parastatals and companies as a business. In urban areas, and even in rural areas, most water users are known, well organized and able to pay for the (often partially subsidized) water services. Only a few per cent of the population are farming and irrigating, and these are often well organized, self-regulating and reachable by the water administration.

Shah’s analysis points at the inevitable mismatch when supposedly generic, blanket water governance measures borrowed from high-income countries with formalized economies are imposed on low- and middle-income countries with informal water economies (with local law). The following section will briefly sketch these informal water economies. The third section will trace the very different histories and current implications of permit systems that are promoted as a blanket legal tool, to illustrate how permit systems are a clear example of precisely that risk. Human rights frameworks will appear a useful reference to analyze these implications. The conclusions and recommendations will present an alternative formal perspective, based on human rights, on water tenure in low- and middle-income.

Local legal frameworks for the management of water resources

Informal local water tenure in informal water economies can be characterized by ten features that are commonly reported in the literature, in particular from Nepal (Ostrom 1992; Yoder and Martin 1998; Von Benda-Beckmann and Von Benda-Beckmann 2000), Latin America (Boelens and Dávila 1998; Boelens et al. 2005; Roth et al. 2005; Boelens et al. 2007); India (Shah 2007) and Sub-Saharan Africa (Ramazotti 1996; Sokile 2006; Derman et al. 2007; Van Koppen et al. 2007; Komakech 2013).

The first feature was mentioned above. While livelihoods diversify with migration and urbanization, large proportions of the rural and even peri-urban population continue to depend to a significant extent on water-dependent agriculture-based livelihoods and agriculture’s forward and backward linkages. They need water for a range of uses: drinking, other domestic uses, livestock, fishing or aquaculture, cropping, horticulture, crafts, small-scale enterprise and cultural uses. Informal arrangements prevail: in rural Sub-Saharan Africa, 90 per cent of the territory is governed under customary arrangements for land tenure and related water and other natural resources (Hodgson 2004).

Second, people eke out an agriculture-based living in often harsh conditions of highly variable and unpredictable availability of water resources. Their age-old coping strategies to buffer against this variability are based on directly using and reusing multiple water sources, or protecting against too much water, in the local water cycles: precipitation, run-off, ponds, wetlands and groundwater. In their coping strategies, people move to the water resources or make the water move to them.

A third feature is that people make rules. When moving to the water resources – for example, rivers – water for domestic uses is taken upstream of places for livestock watering. On a much larger scale, settlement patterns follow seasonal flooding. Similarly, people move to and manage wetlands for cropping, grazing and fisheries.

When people move the multiple water sources to themselves for self-supply or to protect and drain too much water, infrastructure is key. As individual or collective primary water takers, they invest in infrastructure, building weirs and diverting rivers and run-off; storing water; retaining or draining soil moisture; using the fertility that floods bring to temporarily inundated and vacated land; and digging groundwater wells and recharging those, for household uses, livestock and irrigation. As a rule, people design multi-purpose infrastructure for as many uses as possible to meet the fullest range of their needs. Single-use designed infrastructure is the exception – for example, in the case of groundwater wells in distant fields. This differs from the planners and engineers in either the irrigation or water, sanitation and hygiene sectors, who design infrastructure for the single uses of their sectoral mandates. Not surprisingly, users immediately transform these single-use-designed schemes into de facto multiple-use schemes (Van Koppen et al. 2014a).

Fourth, these water arrangements are highly dynamic. The recent availability of plastics, pvc pipes, motorized pumps and rural electrification has considerably accelerated these informal investments. Within only a few decades, informal groundwater irrigation has outstripped formal surface irrigation in, for example, India. Growing population pressure on smaller plots or new market opportunities in urbanizing economies are other drivers for these investments. In urbanizing areas, specialized informal water service providers fill the void of unmet water needs, particularly in poorer neighbourhoods. Investments are positively and negatively affected by the broader rapidly changing rural landscapes of remittances, rural transport and energy infrastructure, communication technologies and rapidly increasing numbers of young people, but also forced displacements and conflicts. With the predicted greater variability and more extreme events under climate change, these age-old and ever-changing responses to nature’s and man-made water resource fluctuations will become even more important.

A fifth feature of local water law is the important link between water entitlements and investments. Individuals and groups who invest in the infrastructure tend to have strongest claims to the water conveyed. This process of ‘hydraulic property rights creation’ (Coward 1986) is continuously confirmed through contributions to infrastructure maintenance. Except for the small quantities of water to ‘quench one’s thirst’, investors may exclude others (which may not always be feasible). Inheritance, land transfers, scheme extensions or new schemes upstream or downstream incrementally alter the precise claims.

Sixth, within communal schemes, a wide range of water sharing arrangements has been documented. Transparent member organizations with a relatively accountable leadership set and implement these rules. A specialized and modestly compensated water guard often implements the rules set. An illustration of these rules from an irrigation association in Nepal is that the owner of a plot that is to be irrigated by the water guard is not allowed to be present during that period, as that would inevitably lead to negotiations, if not intimidation or bribery of the water guard.

Water sharing arrangements also exist between schemes, sometimes over long river stretches. At agreed times, upstream users close their intakes, leaving water for downstream users. Relatives living hundreds of kilometres upstream of major flood plains might inform their relatives in the temporary settlements in the flood plains about rising river levels and flooding of the plain a few days later. Sharing arrangements are flexible principles that can be adjusted to any specific situation. In case of water sca...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Notes on editors and contributors
• Introduction
• Part 1 Comparative national water law and policy
• Part 2 Transboundary water law and policy
• Part 3 Cross-cutting issues
• Conclusions
• Index