Table of Contents
Introduction, Philippe Cullet
Part 1: Water Law, Policy and Institutional Reforms in India
1. Water and Questions of Law: An overview, Ramaswamy R. Iyer
This paper aims at presenting a general overview of some of the important legal questions that arise in the course of the current international debates on water. It is not a detailed technical paper meant for a scholarly audience but a broad presentation, in simple terms, for the interested general reader; and all of us fall into that category. It is explanatory in nature, but it is also partly prescriptive, and in the latter aspect it is a personal statement. It draws upon Indian experience, but is not India-specific.
2. Water Law - Evolving Regulatory Framework, Philippe Cullet
In India, water law is made of different components. It includes international treaties, federal and state acts. It also includes a number of less formal arrangements, including water and water-related policies as well as customary rules and regulations. This chapter maps out the relevant legal framework concerning water in India. The first section delineates water law as it evolved until recently. The second section then examines proposed and ongoing water law reforms that are in the process of redrawing India’s water legal framework.
3. Discourses in Water and Water Reform in Western India, Priya Sangameswaran
This chapter discusses two major water discourses: the GEM discourse with its messages of scarcity and the importance of treating water as an economic good, and the rights-based discourse with its central message of everyone being entitled to water. Each of these discourses has varying implications for different aspects of water such as ownership, delivery, and pricing; further, they have also had different degrees of influence on water (and water-related) policies and legislation of nation-states. This chapter seeks to bring out how the two water discourses work at the international and domestic levels, focusing on one particular aspect of water viz., delivery of water services. The reforms undertaken in this realm in India not only reflect the influence of these discourses, but also the dominant role of the GEM discourse. Evidence for this is offered by the analysis of the reform process in the water sector in the state of Maharashtra in western India, and in particular, by the analysis of the concepts of decentralization and entitlements in the new legislation. The co-existence of different (and sometimes contradictory) trends such as decentralization, centralization, and privatization in Maharashtra is also another indication of the inter-play of different water discourses as well as the hegemonic influence that some discourses (such as the notion of water as an economic good) have over others (such as the concept of right to water).
4. The Slow Road to the Private - A Case Study of Neo-Liberal Water Reforms in Chennai, Karen Coelho
This chapter outlines the structure, patterns and implications of neoliberal water reform orthodoxies through a case study of reforms pursued by Chennai’s Metrowater over a twenty-five year period, based on archival documents from the agency and interviews with agency personnel. It provides an instance of how the World Bank’s agenda of putting water supply in Third World cities into the hands of the private sector is achieved through gradual, incremental and ‘rational’ steps that have become commonsense in the water sector. Beginning with the formation of an autonomous water board which removed the service from its local government auspices, Chennai’s water utility moved on to commercialise all operations and privatise as many components as possible. Social and political relations encasing the water service were transformed as the utility adopted ‘institutional strengthening’ measures that focused on enhancing its financial health and building professional management systems modeled on the commercial sector. The World Bank simultaneously pushed the utility to implement tariff reforms aimed at full cost-recovery, reduce cross subsidies from industrial to domestic consumers, and, crucially, to roll back its obligation to serve the poor populations of the city who did not contribute to its revenues.
The chapter shows how the neoliberal compulsions of demand-responsiveness and consumer satisfaction pull against the agency’s mandate to protect and ensure the long-term sustainability of the resource. The institution of ‘modern water rights’ – individual, tradeable rights over groundwater – emerges as a crucial strategy through which utilities attempt to assure endless supply to metropolitan centers through extraction from peri-urban acquifers.
Part 2: Ongoing irrigation and groundwater reforms in India
5. Canal Irrigation, Water User Associations and Law in India - Emerging Trends in Rights based Perspective, Videh Upadhyay
A number of States have now passed laws creating Water Users Associations in recent years from a rights based perspective. Given the bias in the legal system that recognises statutory right to the exclusion of almost any other form of rights, the passing of these laws presents an opportunity to these Associations to see what effective rights have come their way through these laws. This chapter begins with a discussion that is premised in a larger context where first some conceptual links between decentralised water governance and rights are explored in the Indian context. The chapter also explores how the rights are a function of law making and whether the water users and the farmers identified and owns the rights available to the water users associations in different states today and particularly in Andhra Pradesh and Chhatisgarh while focussing on both their 'internal and external rights'. It also suggests whether and how far they are precipitating a 'group rights regime' while tracing its inevitable linkage to the critical question of water entitlements and the state of the irrigation systems.
6. Customary Rights And Their Relevance In Modern Tank Management: Select Cases In Tamil Nadu, A. Gurunathan and C.R. Shanmugham
Village tanks play a vital role as an important water resource for the livelihood of the rural communities. These unique and indigenous water harvesting and storage systems and their management have been declining in recent years due to many reasons, the major one being the centralization of the tank administration. Both the state and the community are facing a critical situation through the deteriorating tanks, forcing the marginal and small farmers into a cycle of deprivation and debt, due to the vagaries of monsoon. The tanks have multiple other uses besides irrigation, such as a drinking water source for people and livestock, for fish culture, recharge of ground water as well as multiple stake holders. Therefore equitable and sustainable use and management of tanks require an appropriate, functional and creative governance framework to accommodate their interests and activities.
Natural resource use in India and its associated technologies, institutions and law have their origin in a much earlier and entirely different jurisprudential base. Custom constituted a source of law, independent from all other known sources. The co-existence of the dual framework of custom and formal law is sometimes fraught with tension and contradictions, with adverse impact not only on societal relationships but also on the natural resource base. This paper explores the relevance of customary rights in the management of irrigation tanks and presents a synopsis of a few cases of conflict on sharing water and usufruct rights, and encroachment eviction along with the way forward, based on the importance of water reforms for the overall development of these small scale water bodies.
7. Groundwater - Legal Aspects of the Plachimada Dispute, Sujith Koonan
Plachimada is a village in Kerala State- a southernmost state in India. Today, the name ‘Plachimada’ symbolises a debate and discussion on legal and administrative framework of groundwater in India. Particularly for lawyers and law students, ‘Plachimada’ exposes various facets of groundwater legal regime in India such as basic legal principles regulating groundwater use, power and responsibility of the government, role of local bodies and rights of individuals and the community. Apart from this, it also involves a discussion on legal and institutional framework addressing groundwater pollution. ‘Plachimada’ has become as indispensable part of a discussion on the groundwater legal regime in India after a petition was filed in the Kerala High Court on the issue of groundwater depletion allegedly caused by the over-exploitation of groundwater by the Coca-Cola Company in Plachimada. In this background this chapter records the factual background which led to litigations. It also discusses and analyses legal issues addressed by the Kerala High Court. Since a discussion of case law is unlikely to reveal nuances completely, legal issues other than those discussed by the Kerala High Court such as pollution are also analysed. The chapter discusses the Kerala Ground Water Act, 2002 and major contentions filed in the pending appeal in the Supreme Court in a futuristic perspective.
Part 3: Perspectives on privatisation
8. Tirupur Water Supply and Sanitation Project - A Revolution in Water Resource Management?, Roopa Madhav
The New Tirupur Area Development Corporation Limited (NTADCL) is the first public private partnership, set up in 1995 primarily to supply industrial water to Tirupur, a major export centre for knitwear, in India. This water supply and sewerage project is also the first project to be structured on a commercial format; first concession by a state government to a public limited company to draw raw water for domestic and industrial uses and to collect revenues. Said to “herald a water revolution” in India, it is also the first water project backed by IFC in India. This BOOT experiment, which began functioning in 2005, is responsible for transmission, treatment of water supply, distribution of water to industries and the municipality for domestic consumption, and treatment of the collected sewage, and maintenance of the sewage treatment plants.
However, NTADCL’s water supply scheme typifies an incongruity in water resource management and prioritization. Pollution caused due to industrial waste continues to plague Tirupur, even as state of the art technology is being installed to extract and transport from distant sources, clean water for the textile industry. This case study examines this new initiative from the broader perspective of sustainable water management and conservation. It must be noted that though the bulk of the water supplied under this project is for industrial purposes, the scheme also supplies water for domestic use to limited urban and rural populace. Further, this case study seeks to examine the functioning of the water supply scheme- both domestic and industrial, and the new and emerging legal arrangements in promoting public-private partnerships, in the water sector.
9. The World Bank's Influence on Water Privatisation in Argentina : The Experience of the City of Buenos Aires, Andrés Olleta
The privatisation of public services is one of the central reforms sponsored by International Financial Institutions for reducing public deficit and stimulating economic growth in developing countries. Since the late 1980’s, the World Bank has supported in particular the privatisation of urban water and sanitation services. It has forwarded this policy to indebted countries through conditionality and has assisted them with its implementation on the ground. This chapter underlines the role of World Bank in the water sector, explains the policies that it encourages in said sector, and clarifies its reasons for promoting private participation in water management and water services provision. The chapter then explores the part that the Bank played in the decision to privatise drinking water and sanitation provision in the city of Buenos Aires and reviews chronologically a number of key developments that led to the cancellation of the contract and the return of the services to public hands. This work purports to uncover intrinsic deficiencies in the privatisation process of water services in Buenos Aires as well as to examine the Bank’s conduct throughout it. It also aims at determining whether the Bank and the Argentinean authorities have learnt any lessons from the failure and, on that note, the chapter addresses the current regulatory framework for water services in Buenos Aires in an attempt to assess whether it remedies the shortcomings of the previous one.
10. Linkages between Access to Water and Water Scarcity with International Investment Law and the WTO Regime, Francesco Costamagna and Francesco Sindico
This paper aims to examine the relationship between two branches of international economic law and water-related issues. In particular, it analyses the impact of international investment law and international trade law on, respectively, State’s capacity in ensuring universal access to water services and fighting against water scarcity. The main objective of the paper is to define State’s rights in relation to water supply and how these rights can be protected and enforced within the international investment and/or WTO regime. First, the analysis focuses on certain features of the investment system that may affect the balance between State’s right to regulate for strengthening access to water and foreign investments’ protection. The dispute settlement mechanism, which allows private investors to challenge regulatory measures directly before an international arbitral tribunal, and the uncertain definition of basic substantive provisions are the elements considered in this regard. The second part of the paper examines whether and how the WTO regime may deal with water transfers. In particular, the goal is to assess the relationship between water exporting and water importing countries, which are not always balanced should a strict interpretation of WTO norms and exceptions be adopted. The paper concludes that the application of international economic rules to water-related issues requires the development of a flexible approach to strike a fair balance between the economic interests and the fundamental social needs at stake in this field.
11. More Drops for Hyderabad City , Less Crops For Farmers: Water Institutions and Reallocation in Andhra Pradesh, Mattia Celio
When water becomes scarce, competition between water sectors takes place for appropriating the available resource. Nowadays, this phenomenon is best exemplified by growing urban areas claiming supplies from the old established agriculture. This paper takes as a case study Hyderabad, a fast growing city of some seven million inhabitants in the state of Andhra Pradesh (South‑India), and analyses the way in which the existing water institutional set‑up deals with water transfers from agriculture to the city. It is shown that notwithstanding intersectoral water use and allocation is a major concern of policy makers in Andhra Pradesh, the existing institutions (that is policies, law, and administration) are only marginally addressing water transfers, and have proven inefficient to ensure a smooth reallocation. Policy provisions don’t provide for clear guidance when it comes to reallocation, and urban water conservation policies in Hyderabad have had limited effect. Existing law vests overwhelming water powers on the state government and the scope for participation of water users in the decision-making process and implementation of water transfers from agriculture to the city is extremely limited. Eventually, the administrative set‑up for sharing water between agriculture and Hyderabad provides for a too limited decision‑making power to the Hyderabad Metropolitan Water Supply and Sewerage Board that is in charge of the city water supply.
Part 4: Environment and Human Rights
12. Balancing Development And Environmental Conservation And Protection of the Water Resource Base - The 'Greening' of Water Laws, Stefano Burchi
Balancing the goals of development with those of environmental protection and conservation is at the heart of many contemporary water resources laws. Environmental and conservation requirements of freshwater bodies, both surface and underground, increasingly tend to be treated in water resources legislation on a par with the development exigencies of society. The “greening” of water laws is borne out by the consistent recourse of the latest generation of water laws to distinct regulatory and other mechanisms. Minimum environmental flows of rivers, environmental water trades and water trusts, environmental impact assessment requirements, the national “reserve” and protected areas and zones, ecosystem service payment schemes and the specific safeguard of aquifers in recognition of their ecosystem support function, all point in the direction of the ever-increasing currency environmental protection and conservation goals have been gaining with policymakers and lawmakers in regard to the dwindling water resource base. The paper will explore and illustrate these mechanisms as they feature in the comparative legislation of selected countries.
13. The Right to Water as a Human Right or a Bird's Right - Does Co-operative Governance Offer a Way Out of a Conflict of Interests and Legal Complexity?, Jonathan Verschuuren
The right to water has been recognised as a human right under various international human rights instruments. These legal instruments primarily focus on access to safe drinking-water, disregarding the need to wetlands designated under the Ramsar Convention. In theory, the principle of reasonable and equitable use and the concept of common river basin management, as laid down in the Convention on the Law of the Non-navigational Uses of International Watercourses, offer a way out of this potential conflict. However, these theoretical concepts are not easy to implement in practice. A vast amount of legal rules applies to any given area: international law, regional law (EU, SADC), national law and local or provincial law in all countries involved, not only on water, but also on other issues such as environmental protection. National legislation should regulate the balancing of the various interests involved, especially the right to water and the duty to protect aquatic ecosystems.
A co-operative governance approach, where all relevant stakeholders together try to figure out how the available water is to be reasonably and equitably shared, is an important mechanism to achieve an outcome that is acceptable for all. To achieve such an outcome, the stakeholders temporarily withdraw from the legal specifics and focus on the main principles of the relevant international law. Although often successful at first, the process may run into legal complexity once the carefully reached agreements are to be consolidated into legal decision-making at all levels of government, in all countries involved.
14. South Africa's Water Law and Policy Framework: Implications for the Right to Water, Alix Gowlland-gualtieri
South Africa’s law and policy framework for water is noteworthy particularly because it entrenches the right to water at the constitutional level. Its study provides insights on broader developments taking place in the context of renewed interest for the formalisation of a right to water in international law, where there has been an evolving recognition that access to safe drinking water is a fundamental human right and must be addressed within a legal framework. The increasing references to the right to water in human rights instruments both as a component of other human rights and as a self-standing right highlights the growing importance of this issue in the international community. Both on the national and the international levels, however, tensions have emerged between on the one hand the enunciation of a human rights approach to water, evidenced by explicit reference to the right, and on the other by the economic approaches to water which have become prevalent particularly as a result of the application of the policies of international financial institutions. While South Africa has some of the most progressive water policies on paper and has attempted to implement a free entitlement to drinking and domestic water, there remain huge disparities in access to basic water services and allocation of water. This highlights the urgent need in international law to determine more precisely the contours of states’ obligations in relation to access to safe drinking water.
15. Respect, Protect, Fulfil: The Implementation of the Human Right to Water in South Africa, Inga T. Winkler
The South African Constitution recognises that everyone has the right to have access to water. Yet, a great number of people still lack access. South Africa has adopted a legislative framework and policies aiming to overcome this deficit such as its Free Basic Water (FBW) Policy.
There are, however, a number of challenges to the implementation of the right to water. These will be analysed under the framework of the common tripartite distinction between obligations to respect, protect and fulfil. Obligations to respect require states to refrain from interfering with the enjoyment of human rights thus aiming to ensure that existing access to water is not infringed, while obligations to protect refer to the duty of states to prevent third parties from interfering with the enjoyment of human rights therefore being of particular importance in the context of water services privatisation. Obligations to fulfil require states to adopt the necessary measures directed towards the full realisation of human rights.
A number of concerns are raised: Increases in water tariffs, the disconnection of water services and the installation of prepayment metres refer to the obligation to respect and to protect depending on the type of service provider. In regard to the obligation to fulfil, achievements in the extension of infrastructure and the FBW Policy are acknowledged, but a number of challenges must not be overlooked. Finally, it is argued that the minimum core approach would oblige the state to immediately fulfil the basic water needs of all indigent people.
Part 5: Comparative Perspectives on Reforms
16. Learning from Water Law Reform in Australia, Poh-Ling Tan
Parts of Australia are going through a period where rainfall is the lowest since records were collected. The drought has brought water issues to the forefront of national concern. Since 1994 Federal and state governments in Australia have embarked on an ambitious agenda for reform. The reforms were based on two main objectives – to introduce a water market while at the same time protecting environmental uses of water. Water entitlements were required to be specified in order to be traded. In 2004 the Council of Australian governments confirmed the direction for reform and agreed on a further reform agenda called the National Water Initiative (NWI). In this new phase, the tensions between the two main objectives of trade and sustainable management continue to be resolved through water planning processes.
Reform has made progress for example the establishment of reliable registers of water entitlements which are roughly based on registers of land title. Water planning is in place in all jurisdictions and processes have improved. However significant challenges exist - overallocation of water has not been satisfactorily addressed; water plans are still not based on sustainable management; climate change brings new risk factors that need to be assessed in planning; decision-making in planning needs to be made more transparent; engagement with stakeholders, particularly Indigenous communities, need improving; and the structure of legal entitlements to water needs refining.
17. Law and 'development' discourses about water: Understanding agency in regime changes, Radha D'souza
Understandings of structure-agency relations in social theory point to the ways in which social structures and social agency constrain and enable social change. What is less understood is the role of concepts and ideas that mediate the actions of social agents in structural change. For example critical responses to neo-liberal transformations from scholars and activists juxtapose states and markets as antithetical institutions. In doing so, do they mirror the conceptual frameworks of neo-liberal transformations albeit from different ends of the binaries? And, do they end up facilitating the very neo-liberal regime changes that the critical voices oppose? This wider question is examined in this chapter by interrogating two events: the setting up of World Commission on Dams in March 1997 and the adoption by the UN General Assembly of the Convention on Non-navigational Uses of International Watercourses in May 1997. The two events occurred during a critical moment in the neo-liberal transformations of water regimes for the ‘Third World’ in the context of critical voices and protests for water justice and access to water. This chapter interrogates the contexts within which the two events occurred, the conceptual frameworks that informed the two discourses about the two events and the social outcomes in the water sector that followed for the ‘Third World’.
Keywords: Law and development, social agency, regime changes, state regulation, market regulation, water regimes, World Commission on Dams, UN Convention on Non-navigational Uses of International Watercourses, neo-liberal transformations, international organisations.
18. Marginal Remarks Concerning Water Policy Regimes; Governance, Rights, Justice, and Development - An Epilogue, Upendra Baxi