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Water Law for the Twenty-First Century - National and International Aspects of Water Law Reform in India

In the face of growing freshwater scarcity, most countries of the world are taking steps to conserve their water and foster its sustainable use. Water crises range from concerns of drinking water availability and/or quality, the degradation or contamination of freshwater, and the allocation of water to different users. To meet the challenge, many countries are undergoing systemic changes to the use of freshwater and the provision of water services, thereby leading to greater commercialization of the resource as well as a restructuring of the legal, regulatory, technical and institutional frameworks for water.

The contributions to this book critically analyse legal issues arising under international law, such as environment and human rights provisions, concerning the economic, environmental and social consequences of proposed water regulatory changes and their implementation at the national level. The book examines the situation in India which is currently in the midst of implementing several World Bank led water restructuring projects which will have significant impacts on the realisation of the right to water and all other aspects of water regulation for decades to come. In analysing the situation in India the volume is able to detail the interactions between international law and national law in the field of water, and to ask broader questions about the compliance with international law at the national level and the relevance of international law in national law and policy making.

Editors: Philippe Cullet,
Alix Gowlland-Gualtieri,
Roopa Madhav,
Usha Ramanathan
Hardback edition (2010): ISBN
Paperback edition (2011): ISBN



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Table of Contents

1. Introduction, Philippe Cullet, Alix Gowlland-Gualtieri & Roopa Madhav

Part 1. Background and Historical Development

2. An Overview of Common Trends in the Water Legislation of Selected Jurisdictions, Andrés Olleta

Recent national legislation seeks to update older water legislation in a comprehensive way, incorporating the conclusions of recent international debates on water issues and avoiding the legal overlaps caused by years of regulating different aspects of water in separate instruments.  As such, they provide us with a glimpse of ongoing changes in national water policy around the world, now oriented towards a more integrated and sustainable management of the resource.

The global trends in water legislation that can be noticed around the world have to do with the reception of the right to water in the domestic legal order, the increased control of the state over water resources, the involvement of users in water management and water services provision, the participation of the private sector, and the stress put on environmental concerns. In general, current domestic water legislation is a reflection of those broad ideas; however, the challenge for the sector is to come up with policies along those lines that suit the specific needs of each country, to defend them against extraneous interferences, and not to fail at the implementation level due to institutional deficiencies.

3. International Aspects of Water Law Reforms, Irina Zodrow

Water is the precondition for human life. Thus, ensuring access to clean and sufficient water for all, including through comprehensive laws and policies regulating the use and management of water, must be a priority of any government authority involved in the development or implementation of water management systems. Nevertheless, there is still a striking global lack of access to water, a phenomenon which is not necessarily based on the growing water scarcity that has recently attracted increasing international attention, but to a large part on the lack of efficient water management.

To address this situation, many countries such as India have started to introduce water law and water sector reforms with support from international financial institutions. However, their implementation has often proved difficult. One of the main obstacles is the lack of a comprehensive international legal framework governing national authorities to take all the dimensions of water, namely the environmental, economic and trade, human rights, conflict and governance dimensions, into account in their efforts to develop effective water management systems.

The chapter gives an overview over the existing international instruments and principles addressing the different dimensions of water and applicable to national authorities when instituting water sector reforms with a particular view on water law reforms.

4. Legal Implications of Trade in ‘Real’ and ‘Virtual’ Water Resources, Alix Gowlland-Gualtieri

This chapter addresses some of the legal issues that are emerging with respect to a growing international trade in water resources, whether water is traded directly or as part of the production of traded goods. As interest is increasing in the potential profits stemming from trading water as a good in itself, water transfers in different forms are becoming increasingly prevalent which raises questions under the General Agreement on Tariffs and Trade (GATT).

With trade in water being put forth as one answer to the increasing threat of global water scarcity, the discourse on water still appears dominated by the policies of the international and trade institutions, with the social and environmental values of water often put to the side. The perception of water as a good falling under the international trade rules can be viewed as strengthening the commodification of water resources which has largely informed recent water sector and water law reforms in countries such as India. In turn, the legal treatment of water under the international trade rules has become one additional means through which water can be more easily treated as an economic and tradable good at the national level, including when drinking water is concerned, and reflects the growing influence of the international economic institutions on water policies in the South. As they stand, the international trade rules do not integrate sufficiently non-trade considerations, in particular those related to water. The traditional conflicts which have occurred in the trade regimes between economic and environmental goals thus take on a new dimension when water is concerned, begging the question of whether certain considerations specific to the problematic of freshwater resources should constrain the market perspective.

5. The Role of the World Bank in Water Law Reforms, Andrés Olleta

This chapter examines the ways in which the World Bank and regional multilateral development banks have over the last couple of decades developed new policies for the water sector and encouraged their implementation in developing countries through their lending services. The chapter focuses on the water sector reforms cautioned by the World Bank that have led to modifications of domestic water legislation. It introduces World Bank lending policies and discusses how it succeeds in incorporating its preferred policies in the domestic legal and regulatory frameworks of borrowing countries. It also examines three main policies that the World Bank favours in water management and water services provision and thus attempt to provide a comprehensive picture of how the World Bank has moulded the current water sector reforms that are noticeable worldwide.

Part 2. Water Law Reforms in India

6. Context for Water Sector and Water Law Reforms in India, Roopa Madhav

This chapter reviews the present status of water sector and water law reforms in India. In explaining the context for these reforms, it seeks to briefly map the history of the water sector administration and water law. In laying out the trajectory in the development and progress of the water sector, it points specifically at the paradigm shifts in institutional and legal frameworks that are being adopted by the present day reforms. As an overarching chapter, it analyses and examines these changes in a bid to understand policies and principles that underlie the current law and institutional reforms being carried out in the country.

7. Institutional Reforms for Water, Priya Sangameswaran & Roopa Madhav

Institutional reforms, aided by legislative changes, have been a major focus of water sector reforms in India after the mid 1990s. This chapter gives a brief overview of three sets of institutional changes – regulation, decentralization and privatization and points out a number of problems in their conceptualization. Firstly, there are ambiguities in the division of labour between different actors involved in the reforms and this in turn has implications for questions of accountability. Secondly, there are limits to the extent to which the reforms have actually increased rights and powers of users/local bodies. Thirdly, many dimensions of the reforms are not compatible with a right to water. The chapter concludes, therefore, with a call to take stock of the impact of the already introduced reforms before making any further changes in the water sector. 

8. Drinking Water Reforms, Philippe Cullet

Drinking water is the most fundamental component of any water law and policy framework because it is intrinsically related to the realization of the human right to water. It also deserves separate treatment in the context of water law reforms because it has been not given significant attention in the new laws introduced as part of water law reforms. This is not due to the fact that other specific laws have been adopted for drinking water in recent years but to the fact that drinking water has in fact not been a ‘real’ priority in the reforms. While all documents linked to water sector reforms reiterate the position that drinking water is the first charge of the water sector, the laws that have been and are being adopted are not specifically concerned with drinking water. Yet, this does not mean that no reforms have been undertaken concerning drinking. On the contrary, since at least the middle of the 1990s, sweeping reforms to drinking water supply have been introduced. This chapter examines the policy changes that have been introduced over the past two decades in drinking water supply and gives special emphasis to the situation in rural areas.

9. Legal Regime Governing Groundwater, Sujith Koonan

Groundwater plays a major role in meeting irrigation, industrial and drinking water needs. Groundwater in India largely remains as a part of private property right. This facilitates uncontrolled extraction of groundwater for various purposes. The subsidized power supply for agricultural purposes also catalyses the large scale extraction of groundwater. The purity and consistency in availability of groundwater coupled with the insufficiency of surface water promote the uncontrolled extraction of groundwater. Hence the growing needs, the ‘favourable’ legal framework and availability of technology seem to have caused the deterioration of quantity and quality of groundwater across the country. One of the major reasons for this continuing deterioration can be attributed to the existing law and policy framework. India, even after independence, followed the colonial laws and principles related to groundwater use and management. As a result, groundwater largely remained as a part of land right. The right over groundwater was considered as, more or less, a real property right. This legal framework made groundwater a resource that could be enjoyed by the propertied class in an uncontrollable manner. The technological development and policies of the government such as electricity pricing and lending policy also facilitated the indiscriminate extraction of groundwater. A shift in this legal regime started recently. One of the major features of the evolving legal regime is the shift from uncontrolled private regime to government control. This shift could be traced from the model bill prepared by the Ministry of Water Resources in 1970. Subsequently, several states have enacted separate groundwater laws. This process is not yet complete because some states are in the process of enacting separate laws while some other states do not feel it necessary to enact such laws. Apart from the statutory framework, there are policy documents, principles and doctrines forming part of the groundwater legal regime in India. In this background of multiplicity of laws, policies and institutions, this paper attempts to analyse the groundwater legal regime in India.

10. Law and Policy Reforms for Irrigation, Roopa Madhav

The global policy shift in irrigation development introduced the decentralized/empowerment model of reform in many parts of the world. The irrigation sector in India, influenced by this new paradigm, has been experimenting with reforms at a measured pace. The principal thrust of the reform process is to revamp the existing institutional set up by reducing the role of the state, creating water users associations and water regulatory authorities, and encouraging greater private sector participation in the irrigation sector. Legal reforms aid the structuring of a new framework that enables to set up water users associations and permits the devolution of powers to them. In examining the experience in India, this chapter highlights that though the empowerment model is adopted, its working is limited by many factors such as elite capture, caste dynamics and resistant bureaucracies. 

Part 3. Human Rights, Social, Health and Environmental Aspects

11. International Human Rights Aspects of Water Law Reforms, Alix Gowlland Gualtieri

The human rights dimension of water appears one of the core concerns from a legal perspective. The interest in entrenching the right to water in law and achieving its international recognition as a basic and self-standing human right can be viewed as having developed in parallel to the trend towards commodification of the water sector. A rights-based approach is increasingly perceived as effective means to address potential problems of scarcity and ensure the water supply needs of the population as a whole, including the poorest and most marginalized groups.

This contribution addresses the need for greater analysis of the practical implications of the recognition of a right to water from the perspective of the state and of the compatibility of water law reforms with international human rights obligations. It focuses on the way in which the international human rights framework deals with those most pressing and problematic issues that have emerged in recent water law reforms, namely the economic thrust of reforms, privatisation, devolution of responsibilities by the state, implications of cost recovery policies and the need to prioritise domestic uses. The perspectives examined in this chapter should be set within the broader framework of international law applicable to water. At the international level only certain aspects of water law have been developed and there is to date no international water law treaty. While the 2002 adoption of General Comment No. 15 is noteworthy in that it responded to the need for water law to be addressed from the perspective of human rights law, and while it provides firm grounding for the main components of a right to water, international human rights law often does not provide a comprehensive enough framework to address the most pressing and indeed controversial aspects of water law reforms.

12. Water Sector Reforms and Principles of International Environmental Law, David Takacs

During the past two decades, powerful international actors have expressed deep concern about the growing global scarcity of water.  To mitigate this environmental problem, they have not turned to environmental politics, policy, and law. Instead, water sector reforms have focused on political restructuring based on economic principles.  Under pressure, Southern governments increasingly abandon their roles as water providers, and turn over water services to private actors, who commodify and commercialize water. The resulting changed regulatory environment may seriously impact the physical environment that supports human and nonhuman life. In this chapter, I focus on water sector reforms cornerstone principles and resulting policy edicts. I emphasize in particular the World Bank, which has driven economic and political solutions to problems of environmental scarcity, and explain how these principles and policy solutions have played out in India.  To assess how these solutions do or don’t adhere to principles of environmental law, I will examine sources of that law including constitutions, international water law, and customary international environmental law.  Throughout I offer ideas on how water sector reform might change to align solutions to water scarcity and inequitable distribution with principles of environmental law.

13. Water, Health and Water Quality Regulation, Sujith Koonan & Adil Hasan Khan

Access to safe water is an essential factor determining the achievement of public health goals. Access to safe water could be considered as a significant step towards realisation of guaranteed human rights such as human right to water and right to health. The unavoidable link between access to safe water and public health and other established human rights makes a regulatory framework governing water quality necessary or imperative. In India, there is no specific binding legal instrument addressing all aspects of water quality issue in a holistic manner. Instead, water quality regulatory regime mainly consists of guidelines, manuals and administrative orders which are legally not binding. Owing to this reason, there is no consistency and uniformity so far as water quality regulation in India is concerned. This fragmented nature of law, policy and institutional framework results in overlapping normative and institutional framework both vertically and horizontally. In this background, this chapter seeks to describe and analyse critically the existing legal and institutional framework governing water quality in India.

14. Final Remarks, Philippe Cullet, Alix Gowlland-Gualtieri & Roopa Madhav