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Integrated Water Resources Management: Legal Framework

JoyeetaUNESCO-IHE

Gupta

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Presentation Outline

Law, Governance and Institutions Water Governance: From Principles

to Concepts International water agreements National legal setting

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LawRights: Protection

Responsibilities: Enforcement

Pow

ers

Priv

ileg

es

Prin

ciple

s

Engineermanager

Policymakerhousewife

Studentpolitician

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Law in the domestic context

Separation of powers Influenced by custom, religion and

conquests Now increasingly by knowledge Domestic bargaining between

different interests International commitments

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Sources of International Law

Custom Convention Principle

Judicial Decision Codification Declarations Arbitral Awards Publications

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GeneralAssembly

ECOSOC SecurityCouncil

TrusteesshipCouncil

Secretariat InternationalCourt ofJusticeILO

FAOUNESCO

WHOWBIMF

ICAOUPUITU

WMOIMO

WIPOIFAD

UNIDOIAEAWTO

The United Nations System

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Modern International Law Process

Idea

ResearchPrinciple

Soft law

Harder

Treaty

TreatiesCustom

Hard law

Critique

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Institutions and Governance

Institutions: social practices through repetition become institutions;

Organisations: are bodies with funds, secretariat and staff;

Governance: social practices that regulate social behaviour

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Multi-level Governance: Relationships

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History of water managementLocal, Regional, National, Fluvial, Global

Ancient

1200 A.D.

1900

1990s

Future

Community

Basicmanagement of water quantity

Sectoralmanagement of water quantity and qualityinstitutional fragmentationspatial fragmentationlocal co-ordination

Integratedmultifunctional useriver basin as unitinstitutionalised cooperation

Multi-level Comprehensive Governance

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Conferences

Stockholm Conference 1972 Mar Del Plata 1977 UNCED 1992 WSSD 2002 Third World Water Forum 2003

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International law principles Sovereignty Absolute territorial

sovereignty Absolute integrity of

state territory Permanent sovereignty

over natural resources Limited territorial

sovereignty Community of

interests in water

Reciprocity Good neighborliness Cooperation Peaceful settlement of

disputes

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Environmental & Resource Use Principles Prevention Precaution Stand-still Best available

technology BATNEEC Polluter Pays

principle Cost-effectiveness

Minimum flow Prior appropriation Priority of use Maximum

sustainable yield

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Dublin principles elaborated

Finite– Holistic approach; has natural limits; is affected by

humans; upstream-downstream linkages,institutional approach

Participatory– Real participation, not just consultation, need for

achieving consensus, participation mechanisms, lowest appropriate level

Women– Involvement of women, women as water users, gender

awareness

Economic good– Value and charge are different; (GWP 2000)

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Gradations in involvement

Ignored

Controlled or manipulated

Informed

Self-management

Consulted

Dialogue

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The Rio Declaration 1992

1. Humans at centre

2. sovereignty& responsibility

3. sustainabledevelopment

4. integrationof environment

5. removepoverty

6. priority tovulnerable countries

7. common butdifferentiated responsibilities

8. consumption & demographic

patterns

9. capacity building and tech. transfer

10. subsi-diarity

11. effective environmental

legislation

12. open inter-national economic

system

13. liability and compensation

14. prevent relocation

15. precau-tionary

approach

16. polluter pays principle

17. E.I.A. 18. disasternotification

19. plannedmeasures

20. women21. youth22. indigenous

23. oppressedpeople

24. protect environmentduring wat

25. peace,development &

environment

26. disputeresolution

27. cooperationin good faith

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Sustainable development principles Common but differentiated responsibilities Poverty alleviation Sustainable use of resources Good governance Participation by all Precautionary principle Interrelationship and Integration (ILA

2002)

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Multi-Level Sustainable Development Governance Water as economic good & cultural

heritage; Sustainable development principles;

– including integration as elaborated further;– including participation & role of women;– including equity in water sharing;

Vertical linkages and subsidiarity; Capacity building and utilisation and

technology cooperation;

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Subsidiarity

Functional decentralisation; Establishment of river (sub)basin authorities Platform of stakeholders Participation in decision making / consultation Participation in management / monitoring Equitable representation of relevant stakeholders Development of adequate by-laws, working rules Introduction sub-basin level, if necessary Accurate formulation of functions (source: Jaspers

2002)

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Strategies and Tools

Integrated planning– Embody in national law

Demand management Supply management Decentralization

– devolution of powers,– subsidiarity – Increased participation

Commercialization– water pricing and cost

recovery– Polluter pays principle– Corporatization– Private sector

participation Water markets

– Water trading ?

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UN Law on The Non-Navigable Uses of International Watercourses 1997

ObjectiveArt. 1

DefinitionArt. 2

Right toParticipate

Art. 3, 4

EquityPrinciplesArt. 5,6

Duty not tocause harm

Art. 7

Duty to co-

OperateArt. 8, 9

No priority of useArt. 10

Planned measuresArt.11-19

International

Duty to protectArt.23

RegulationinstallationsArt. 24-26

EmergencySituationsArt. 27, 28

DisputeSettlement

Art. 33

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Law on the Non-Navigable Uses of International Watercourses Purpose: Protection, Preservation and

Management Art 3 & 4: defines when a watercourse

agreement can be entered into;– Does not affect previous agreements;– Should be harmonised;– Riparians may enter into agreement– Can be about a part of the water unless it affects other

riparians;– This protects the rights of those not parties to existing

agreements;– Every watercourse state is entitled to participate

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Equity and reasonable utilisation Equitably and reasonably, for optimal and

sustainable use consistent with protection; Equity:

– Geo, hydrographic, hydrological, climatic and ecological;– Social and economic needs– Population dependent on the water– Effects of the uses– Existing and potential uses– Conservation etc and costs– Alternatives– Weights

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Environment

Obligation to protect and preserve Obligation to reduce pollution through

harmonisation of policies, setting joint water quality objectives and criteria, techniques and practices, developing lists of substances;

Not introducing alien species Protection of marine environment

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Organisations

Joint Management Mechanism Regulation and costs Installations Action in case of emergency

situations Protection during armed conflict

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The Global Challenge

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The EU Water Framework Directive Preamble:

– water is not commercial but a heritage;– Policy must be based on scientific,

technical data, environmental conditions, economic and social development of the Community, benefits and costs of action;

– Specific solutions for diverse conditions– Protection of acquatic ecosystems;– Subsidiarity and sustainable use

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Preamble (contd.)

Eliminate priority hazardous substances and achieve conc. In the marine environment near background values.

Exception: infeasible or unreasonably expensive

Polluter pays principle, etc.

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Purpose: General (Art 1)

prevent further deterioration and enhance aquatic ecosystems;

sustainable use enhanced protection and improvement through

progressive reduction of discharges .. progressive reduction of pollution of ground

water mitigate effects of floods and droughts..

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The European Challenge

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Why are national water systems different?

Regional/ Fluvial Based on local customs Determined by changing bargaining power Historical circumstances and evolving

uses of the water body.

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Why are water principles so alike?Families: Islamic Hindu

Roman British

Communist

Codification

Knowledge development

Spread: Through conversion

Through conquest in Europe colonisation in the South

Through ideology development

Through legal techniques

Through bureaucratic and epistemic networking

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Legal and Institutional Pluralism Customs Laws of colonisers New imported ideas

– Case study of Tanzania and India DOES IT WORK?

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National Water Law

Constitution Tort law Property Law Agricultural Law Environmental Law Customary law in rural areas Etc.

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The National Challenge

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Institutional Challenge

Incorporating new concepts in a new legislation with: – Links with other sectors– Links with other administrative levels– Links with other regulations

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Zimbabwe

National Water Authority Bill - no IWRM

Zimbabwe Water Bill - Art 6a. Integrated water

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South Africa Water Bill The main object of the Bill is to provide for the management of the nation's water resources so as

to enable the achievement of sustainable use of water for the benefit of all water users. To that end it is necessary to provide for the protection of the quality of water resources and for the integrated management of water resources with delegation of powers to institutions at regional or catchment level so as to enable everyone to participate in the processes. The Bill accordingly seeks to provide for the protection, use, development, conservation, management and control of the nation's water resources, taking into account the need to ‑(a) meet the basic human needs of present and future generations; (b) promote equitable access to water; (c)redress the results of past racial and gender discrimination; (d) promote the efficient, sustainable and beneficial use of water in the public interest; (e)facilitate social and economic development; (f) provide for growing demands for water use; (g) protect aquatic and associated ecosystems and their biological diversity; (h) reduce and prevent pollution and degradation of water resources;

(i)meet international obligations; (j) promote dam safety; and (k) manage floods and droughts.

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PRESENTSITUATIONAND TRENDS

DESIRED IWRMSITUATION FUNCTIONS:

CONSTITUTIONALORGANISATIONALOPERATIONAL

POLITICALREQUIREMENTSSOCIETY AT LARGESTAKEHOLDERS

MONITORING & EVALUATIONPERFORMANCE INDICATORSEVALUATION CRITERIA

INTERVENTIONS

ANALYTICAL FRAMEWORK FORTRANSITION TO INTEGRATED WRMAND INSTITUTIONAL REFORM

IDEAL IWRMSITUATION

Source: Hofwegen and Jaspers

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Conclusion

Multi-level sustainable development/ integrated water resource governance systems are very complicated.

Tailor it to your needs. KISS (Keep it simple, stupid) to keep

it effective