Addressing Adaptive Law in the Context of Irrigation ... · Republic of Kazakhstan, United Nations...
Transcript of Addressing Adaptive Law in the Context of Irrigation ... · Republic of Kazakhstan, United Nations...
Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan
University of Eastern Finland Law School
MDP in Environmental Policy and Law
31 October 2017
Writer: Aziya Taalaibekkyzy 277196
Supervisor: Niko Soininen
II
Abstract
UNIVERSITY OF EASTERN FINLAND
Faculty
Social Sciences and Business Studies
Unit
Law School
Author
Aziya Taalaibekkyzy
Name of the Thesis
Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan
Major
Environmental and Climate
Change Law
Description
Master’s thesis
Date
31
October
2017
Pages
62
Abstract
This thesis focuses on Kazakhstan’s irrigation law, which is facing challenges in adapting to climate
change impacts. Adaptive law is brought forward as a theoretical framework to assess the adaptive
capacity and potential for further improvement in the face of climate change induced changes in
available water quantity used for irrigation practices. This is an important issue in Kazakhstan, as
agriculture is becoming an economic priority for the country for its development. Adaptive law
criteria is developed to address how adaptive is irrigation law in Kazakhstan, and whether it is
possible for it to be effective in an established legal system. My analysis finds Kazakhstan’s
irrigation law to be maladaptive overall, but containing some elements of adaptive capacity that can
be developed. Primary barriers for adaptivity include the centralized nature of governance, which
does not enable multi-stakeholder decision-making and an iterative process to inform decision-
makers. Moreover, the lack of enforcement and relevant safeguard standards in the law poses as a
fundamental challenge for it even at this time, as enforcement is one of the most important features
for adaptivity in regulation to work. Importantly, the lack of transparency and information available
in managing of water resources undermines the use of adaptive law, as it would only worsen current
conditions as a result of enabled opportunity for corruption. Nevertheless, there are elements of
adaptive capacity already in place, which offer an opportunity in the future for it possible become
more adaptive. These are overall substantive goals that focus on water basin approach, and
procedural features, such as access to justice, permit systems and other elements. Brief
recommendations focus on improving these elements and paving way for more dramatic changes in
the governance and regulation of water resources in agricultural practices. Nevertheless, without the
state’s willingness and capacity to achieve this, it is unlikely that adaptive law can be fully
implemented.
Key words
Water law, irrigation, adaptive law, climate change, Kazakhstan
III
TABLE OF CONTENTS
ABSTRACT ............................................................................................... II
LIST OF ABBREVIATIONS .................................................................. IV
REFERENCES .......................................................................................... V
1 INTRODUCTION .................................................................................. 1
1.1 Background and Rationale ........................................................................... 1 1.2 Theoretical Framework ................................................................................ 2 1.3 Methods........................................................................................................ 5
2 ADAPTIVE LAW AS A WAY FORWARD ......................................... 7
2.1 Definition and need for adaptive law ........................................................... 7 2.2 Critique of adaptive law ............................................................................. 12 2.3 Developing criteria for measuring adaptive law ........................................ 15 2.4 Criteria of assessment ................................................................................ 23
3 REGULATION OF IRRIGATION IN KAZAKHSTAN .................... 25
3.1 Contextualization of irrigation issues in Kazakhstan ................................. 25 3.2 Legislation on irrigation ............................................................................. 30
3.2.1 Legal set up ................................................................................. 30
3.2.2 Institutional set up ....................................................................... 31
3.2.3 Water Code ................................................................................. 33 3.2.4 Land Code ................................................................................... 36
3.3 Discussion .................................................................................................. 38
4 ANALYSIS OF LEGAL ADAPTIVITY ............................................. 42
4.1 Assessment against established adaptivity criteria .................................... 42
4.1.1 Goals ........................................................................................... 42 4.1.2 Structure ...................................................................................... 44 4.1.3 Methods....................................................................................... 47
4.1.4. Processes .................................................................................... 49 4.2 Strengths and gaps ..................................................................................... 52
4.2.1 Identified strengths...................................................................... 52 4.2.2 Capacity and limitations ............................................................. 54
5 CONCLUSIONS AND RECOMMENDATIONS ............................... 58
IV
LIST OF ABBREVIATIONS
CWR Committee for Water Resources
EU European Union
GEF Global Environmental Facility
IWRM Integrated water resource management
MOA Ministry of Agriculture
NGO Non-governmental organization
SDGs Sustainable Development Goals
UN United Nations
UNDP United Nations Development Programme
UNECE United Nations Economic Commission for Europe
UNFCCC United Nations Framework Convention on Climate Change
USD United States Dollar
V
REFERENCES
LITERATURE
Adaptive law literature
Allen, C. R. – Gunderson, L. H.: Pathology and failure in the design and
implementation of adaptive management. 92 Journal of Environmental
Management 2011, p.1379-1384.
Arnold, Craig Anthony – Gunderson, Lance: Adaptive Law. In Allen, Craig R. and
Garmestani, Ahjond S. Social-Ecological Resilience and Law. Colombia
University Press 2014, p. 317-364.
Arnold, Craig Anthony – Gunderson, Lance: Adaptive Law and Resilience. 43
Environmental Law Reporter News and Analysis 2013.
Biber, Eric: Adaptive Management and the Future of Environmental Law. 4 Akron
Law Review 2013, p. 933-962.
Clarvis, Margot Hill – Allan, Andrew – Hannah, David. M.: Water, resilience and the
law: From general concepts and governance design principles to actionable
mechanisms. 43 Environmental Policy and Law 2014, p. 98-110.
Committee on Endangered and Threatened Fishes in the Klamath River Basin,
National Research Council: Endangered and Threatened Fishes in the
Klamath River Basin: Causes of Decline and Strategies for Recovery. The
National Academies Press 2004.
Craig, Robin Kundis: “Stationarity is Dead” - Long Live Transformation: Five
Principles of Climate Change Adaptation Law. 34(1) Harvard Environmental
Law Review 2010, p. 9-75.
Craig, Robin Kundis – Ruhl, J.B.: Designing Administrative Law for Adaptive
Management. 67(1) Venderbilt Law Review 2014, p. 1-87.
Djalante, Riyanti – Holley, Cameron – Thomalla, Frank: Adaptive Governance and
Managing Resilience to Natural Hazards. 2(4) Int. J. Disaster Risk Sci. 2011,
p. 1-14.
Eckstein, Gabriel: Water Scarcity, Conflict, and Security in a Climate Change World:
Challenges and Opportunities for International Law and Policy. 27 (3)
Wisconsin International Law Journal 2009, p. 409-461.
VI
Folke, C. - Hahn, T. - Olsson, P. – Norberg. J.: Adaptive governance of social-
ecological systems. 30 Annual Review of Environmental Resources 2005, p.
441–473.
Green, O.O. – Garmestani, A. S. – van Rijswick, H. F. M. W. – Keessen, A. M.: EU
Water governance: Striking the Right Balance between Regulatory Flexibility
and Enforcement. 18 (2) Ecology and Society 2013.
Gunningham, Neil – Holley, Cameron: Next-Generation Environmental Regulation:
Law, Regulation, and Governance. 12 Annual Review of Law and Social
Science 2016, p. 273-293.
Holley, Cameron – Gunnigham, Neil – Shearing, C.: The New Environmental
Governance. Abingdon UK: Earthsean 2012.
Keessen, A. M. and van Rijswick, H. F. M. W.: Adaptation to Climate Change in
European Water Law and Policy. 8 (3) Utrecht Law Review 2012, p. 38-50.
Keessen, A. M. – Hamer, J. M. – van Rijswick, H. F. M. W. – Wiering, M.: The
concept of resilience from a normative perspective: Examples from Dutch
adaptation strategies. 18(2) Ecology and Society, 2013.
Lockwood, M. et al: Governance Principles for Natural Resource Management. 23
Society & Natural Resources 2010, 986-1001.
Pahl-Wostl, Claudia: Transitions towards adaptive management of water facing and
global change. 21(1) Water Resources Management 2007, 49-62.
Ruhl, J.B.: Thinking of Environmental Law as a Complex Adaptive System: How to
Clean up the Environment by Making a Mess of Environment Law. 34(4)
Houston Law Review 1997, p. 933-1002.
Ruhl, J.B.: Climate Change Adaptation and the Structural Transformation of
Environmental Law. 40 Environmental Law 2010, 363-431.
Ruhl, J.B.: General Design Principles for Resilience and Adaptive Capacity in Legal
Systems: Application to Climate Change Adaptation Law. 89 North Carolina
Law Review 2011, p. 1373-1401.
Ruhl, J. B.: Designing Administrative Law for Adaptive Management. 67 Vanderbilt
Law Review 2014, p. 1-87.
Soininen – Platjouw: Resilience of Aquatic Environmental Law in the EU – An
evaluation and comparison of the WFD, MSFD, and MSPD. In D. Langlet and
R. Rayfuse Ecosystem Approach in Ocean Governance and Planning. Brill
(forthcoming) 2018.
VII
Termeer, Catrien – et al: The regional governance of climate adaptation: A
framework for developing legitimate, effective, and resilience governance
arrangements. 2 Climate Law 2011, p. 159-179.
Walters, C. T. – Holling, C. S.: Large-Scale Management Experiments and Learning
by Doing. 71 (6) Ecology 1990, p. 2060-2068.
Willams, B. K. – Brown, E. D.: Technical challenges in the application of adaptive
management. 195 Biological Conservation 2016, p. 255-263.
Williams, B. K.: Adaptive management of natural resources – framework and issues.
92 Journal of Environmental Management 2011, p. 1346-1353.
Literature on Kazakhstan
Al-Fati, I.: Policy Planning and Implementation. 12 (1, 2) Eastern and Central
European Journal on Environmental Law 2008.
Beisembin K. R.: Rational use of water resources in Kazakhstan. 11 (31) Scientific
Research Publications 2015.
Global Water Partnership: Central Asia and Caucasus. Regional Review. Water
Supply and Sanitation in the Countries of Central Asia and Southern Caucasus
2009.
Fay, M. - et al: Adapting to Climate Change in Europe and Central Asia. World Bank
Washington DC 2009.
Libert, Bo: Water management in Central Asia and the activities of UNECE. In
Rahaman, M. M. and Varis, O. Central Asian Waters. TKK and Libert 2008.
McKinney, D. C.: Chapter 9 Cooperative Management of Transboundary Water
Resources in Central Asia. In Burghart, D. and Sabonis-Helf, T. Water
Security in Central Asia: Solving a Rubic’s Cube. Washington DC National
Defence University 2003, p. 187-220.
Petrakov – Kenshimov: Parts 1 and 2 Practical guide on implementation of provisions
from the Water Code 2012.
Riccardo, P. – Baris, O. – Janenova, S.: Objective or Perception-based? A debate on
the ideal measure of corruption. 50(77) Cornell International Law Journal
2017, p. 77-106.
VIII
Stucki, V. - Sojamo, V.: Nouns and numbers of the water-energy-security nexus in
Central Asia. 28(3) International Journal of Water Resources Development
2012, p. 399–418.
Wegerich, Kai et al: Water Security in Syr Darya Basin. 7(9) Water 2015, p. 4647-
4684.
Ziganshina, Dinara: International Water Law in Central Asia: Commitments,
Compliance and Beyond. 20 Water Law 2009, p. 96-107.
OFFICIAL SOURCES
National documents
Ministry of Environment and water resources of the Republic of Kazakhstan - United
Nations Development Prgoramme (UNDP) in Kazakhstan - Global
Environmental Facility (GEF): III-VI National Communication to UN
Framework Convention on Climate Change (UNFCCC). Astana 2013.
Blinov, Y.V.: Technial Report. Assessment of the impact of climate change on water
resources of Kazakhstan. Ministry of Environment and water resources of the
Republic of Kazakhstan, United Nations Development Prgoramme (UNDP) in
Kazakhstan and Global Environmental Facility (GEF) 2012.
Ministry of Agriculture of the Republic of Kazakhstan: Governmental Program for
Agro-Industrial Complex Development for 2017-2021 2017, under
Presidential Decree of the Republic of Kazakhstan from 14th February 2017
No. 420.
Ministry of Environment and Water Resources of the Republic of Kazakhstan:
Governmental Program for water resources governance of the Republic of
Kazakhstan for 2014-2040 2014, under Presidential Decree of the Republic of
Kazakhstan from 19th March 2010 No. 957.
United Nations documents
FAO: Irrigation in Central Asia in Figures. AQUASTAT Survey. Frenken, Karen,
Food and Agriculture Organization of the United Nations 2012.
UNECE 2011, ECE/MP.WAT/35. Strengthening Water Management and
Transboundary Water Cooperation in Central Asia: the Role of UNECE
IX
Environmental Conventions.
UNDP 2010, Regional Project Document. Central Asian Multi-Country Programme
on Climate Risk Management (CA-CRM).
INTERNET SOURCES
CA-Water Info: Database. Ziganshina, D. Comparative analysis of national water
regulation of Central Asian countries in light of IWRM implementation.
Published in 2006. [http://www.cawater-
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The Official Internet Resource of the Ministry of Agriculture of the Republic of
Kazakhstan: Territorial Subdivisions. Published in 2017.
[http://mgov.kz/ru/ministerstvo/territorial-ny-e-podrazdeleniya] (accessed
October 17, 2017). a
The Official Internet Resource of the Ministry of Agriculture of the Republic of
Kazakhstan: State support measures. Published in 2017.
[http://mgov.kz/ru/podderzhka-i-uslugi/mery-gosudarstvennoj-podderzhki/]
(accessed October 17, 2017). b
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Kazakhstan: Verification of private entrepreneurs. Published in 2017.
[http://mgov.kz/ru/proverka-sub-ektov-chastnogo-predpri/] (accessed October
17, 2017). c
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Leader of the Nation, N. A. Nazarbaev. Published in 2012.
[https://strategy2050.kz/ru/multilanguage/] (accessed October 29, 2017).
Transparency International: Kazakhstan overview. Published in 2017.
[https://www.transparency.org/country/KAZ] (accessed October 28, 2017).
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[https://www.transparency.org/research/cpi/cpi_2008/0] (accessed October 28,
2017).
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October 17, 2017).
X
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To=EUR] (accessed October 29, 2017).
1
1 INTRODUCTION
1.1 Background and Rationale
Agriculture remains Kazakhstan’s important economic sectors, as the government
sees a lot of potential for economic growth and overall development in this area.1
Consequently, the government has been steadily investing in agricultural industry, and
has introduced a newly updated Program for Agro-Industrial Development for 2017-
2021. Grain is its primary production focus, whereas, cotton and rice production
grown in the south are the most water usage intensive.2
However, current irrigation practices have heavily impacted land quality, reducing
usable land for irrigation by almost 8% between 2011 and 2015.3 In 2015, 68% of
available water has been directed towards agricultural use, and almost 79% of that
water was used in irrigation of crops.4 With increasing impacts of climate change,
there will be less water available for the agriculture and water users in Kazakhstan.5
Present practice of irrigation is considered extremely wasteful as a result of lack of
systematization of institutional governance, problematic enforcement of the law,
inefficient monitoring and transparency, limited finances; lack of incentives to use
water resources efficiently; and lack of technical support towards degrading water
facilities and efficient new irrigation technologies.6 Improved water management in
agricultural sector has been identified as a vulnerability and in need for adaptation
measures, particularly, not only with crop diversification and using drought resilient
cultivars, but also with improvements in irrigation methods, such as the installment of
drip irrigation systems. 7 Kazakhstan’s National Communication III-VI to United
Nations Framework Convention on Climate Change (UNFCCC) highlights heavy
1 Ministry of Agriculture of the Republic of Kazakhstan 2017, Section 2, p. 3-4. 2 Blinov, Y.V. 2012, p. 27. 3 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.2, p. 9-10. 4 Ibid. section 3.7, p. 22-28. 5 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –
GEF 2013, p. 12 6 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7, p. 22-28; Ministry of
Environment and Water Resources of the Republic of Kazakhstan 2014, p.13-15, p. 26-31. 7 UNDP 2010, p. 10.
2
impact of climate change on the economy, particularly the agricultural sector, where
irrigation practices and drinking water supply remain most vulnerable.8
All of these solutions must be reinforced by clear institutional arrangements supported
by the robust legal frameworks. However, existing water law related to irrigation is
rigid in terms of coordination issues and lack of transparency, especially considering
public participation and access to basic information regarding compliance and
monitoring reports. Moreover, the law does not establish clear responsibilities for
implementing agencies, and the result is lack of coherency in management. This thesis
assesses the adaptivity of Kazakhstan’s water regulation in the agricultural sector in
general, and the regulation of irrigation management in specific. Water management
and regulation in the agricultural sector is an important area of climate adaptation for
Kazakhstan, as the country is extremely vulnerable to desertification and drought.9
Law needs to support climate adaptation in agriculture through adaptation to novel
management practices and environmental conditions.
Main questions:
• How adaptive is the water regulation managing irrigation in Kazakhstan to the
changing climate environment and climate change impacts?
• How the legislation should be improved to better address adaptation to climate
change and droughts in the agricultural sector?
1.2 Theoretical Framework
Climate change brings about uncertainty in dealing with the regulation of agricultural
irrigation, and there is a need for the legal framework to facilitate learning in order to
adapt to the new conditions. This learning should be based on scientific evidence that
informs the regulation, for instance predicting decrease in water flow or rainfalls and
putting forward laws and standards that address sustainable and less wasteful use of
water resources. Environmental law needs to improve its management capacity over
its subject matter through learning in order to be adaptive.10
8 Ministry of Environment and water resources of the Republic of Kazakhstan – UNDP Kazakhstan –
GEF 2013, p. 12. 9 Ibid. p. 12 and p. 191. 10 Ruhl 1997, p. 989.
3
Adaptive law is an example of new environmental governance, which is defined as a
collaboration of agencies and organizations involved in common decision-making of
an environmental matter for a common goal (such as private, public,
nongovernmental, and other stakeholders). 11 Sustainable uses and overall
management of natural resources, in this case water use in agriculture, have been
encouraging changes in governance and its design for the economical, environmental
and social benefits. Such collaborative governance encourages interdependency and
greater interaction among a wide range of actors. In turn this offers a greater variety
of knowledge.12 As a result, collaborative governance, particularly in the form of
adaptive management in legal context, offers opportunities to address uncertainty,
complexity and interdependency that stem from governance of natural resources in
the face of climate variations. This leads to the need for decentralized governance to
withstand such changes. In practice, normative guidance is much needed for the
design of such systems.
Adaptive law theory offers an innovative solution to transform a rigid centralized
legal system into a resilient and adaptive decentralized system of laws that allows an
iterative process and a feedback system to improve impact and effectiveness of the
laws by paying higher attention to and incorporating learning. When referring to
adaptivity of the law I draw from adaptive management and resilience theories.
Adaptive management in a legal context is a “structured decisionmaking method, the
core of which is a multistep, iterative process for adjusting management measures to
changing circumstances or new information about the effectiveness of prior measures
or the system being managed”.13 In turn, legal system that is resilient is consistent “in
overall behavioral structure notwithstanding continuous change of external and
internal conditions”. 14 Therefore, I am interested in a process and design
configuration of a legal system responding to climate change impacts, such as
droughts, that allows an extent of administrative and managerial flexibility. This
would be based on continuous learning process encouraged by assessments and
evaluations of subject matter to inform decision-making process. Examples of such
11 Holley et al. 2012, p. 4. 12 Lockwood et al 2010, p. 986-990. 13 Ruhl 2014, p. 1 14 Ruhl 2011, p. 1379.
4
processes are reviews addressing potential for environmental and legislative
effectiveness, for changes in substance of the law (ex. in land use plans), monitoring,
capacity building, consistent sectoral meetings and other mechanisms. Certain
features could inform the law better, such as availability of data and information, and
long-term planning instruments among others. This will be further elaborated in
Chapter 2.
It’s important to consider the relevance of adaptive law to water management in
agricultural sector in Kazakhstan. Apart from providing a quick legal response to the
quickly changing environmental conditions in the irrigation system, in this case
resource availability and quality, it’s important to consider whether adaptive law is
actually necessary and useful. Craig and Ruhl have identified where adaptive law is
not needed: where long-term stability in decisions is paramount, where implemented
decisions cannot be easily changed, and where the agency’s final authority towards a
decision is essential.15
As has been highlighted so far, the scope of this study is the analysis of Kazakhstan’s
national water laws in the agricultural sector. I’m interested in how the law can be
adaptive to increase adaptation capacity to climate change impacts, specifically
looking at Kazakhstan’s water regulation and management in agricultural sector in
relation to irrigation. The research objective is to assess whether the law is adaptive or
not with specific set of adaptivity criteria. There are limitations to be considered when
engaging with this study. First, whether irrigation law needs to be adaptive at all, and
this will be more closely discussed later. Second, whether the need for transparency in
adaptive law can be weakness for its applicability in this study. Risk for corruption is
a very real problem in Kazakhstan and remains an important challenge.16 Such risk
poses a question of necessity of adaptive law in Kazakhstan, as it requires a
functioning and a transparent legal system to have an effect. Moreover, adaptive law
has drawn criticism towards its practicability and efficiency, predominantly its limits
to reduce uncertainty, its cost, and its ability to improve natural resource
management.17 These arguments will be further addressed in Chapters 2 and 3. I am
15 Craig – Ruhl 2014, p. 13. 16 Transparency International 2015. 17 Biber 2013, p. 939-956.
5
interested in applying the methodology of adaptive law that was briefly outlined
above and further explored in my research below, and general law design principles
that deal with resilience, in order to emphasize the work done at national level to
adapt to climate change.
1.3 Methods
The scope of this research is analysis of regulation relevant to irrigation practices,
specifically addressing water uses derived from surface water. I am only addressing
water quantity issues, relating to distribution, access and ongoing challenges with
water related extreme events. Importantly, I am excluding analysis of international
obligations and transboundary agreements on water management in Kazakhstan,
despite significant impact on water management and irrigation practices. This is
because they portray different challenges to climate change adaptation than national
water laws. Primary law relevant to this assessment is Kazakhstan’s legislation on
water is outlined in the Water Code No. 481-II from 1993, and the Land Code No.
442 from 2003. I will also look at relating legislation, such as the Presidential Decree
on “Approval of governmental program on development of agro-industrial complex of
the Republic of Kazakhstan for 2017-2021” 2017 No. 420. Particular attention is also
given to Normative decrees of the Committee for Water Resources (CWR) under the
Ministry of Agriculture (MOA). Ministry of Environment and Water Resources has
been dismantled in 2013, and environmental issues have been distributed between
different ministries. For our context, water management has been particularly taken
over by MOA, which has formed a CWR, which is responsible for management of
water in agricultural sector in Kazakhstan.
Among identified problems that feed into the maladaptive state of the regulation,
corruption may present itself as one of the biggest barriers to successful adaptivity
processes. Another potential issue is that the current legislation may not take into
account long term, mid-term and short-term changes to the environment as a result of
climate change, which significantly affects local areas. I intend to highlight the need
to implement and incorporate resilience and adaptive elements in the criteria
explained above into legislation. This is central because it emphasizes the importance
of legislative quality, and in particular, the benefits of adaptive and resilient
6
legislation facing fast-paced climate change impacts. General recommendations from
this analysis may provide insight for future developments.
Overall, this is an analysis of the potential effectiveness of the legal system to respond
to water security risks evoked by climate change. I aim to use integrated criteria
drawn from relevant research and literature on adaptive management and principles of
resilience (some of which have been stated earlier) to assess irrigation laws in
Kazakhstan. The overall focus is on the adaptive capacity of laws on water
management and use in relation to the impacts of climate change.
My research starts with addressing literature on adaptive law and management, and
principles of resilience. This is to primarily narrow down and determine criteria that
would assess how adaptive and resilient water and environment regulation is to
climate change impacts. Once the criteria or methodology of assessment is established
(see Chapter 2), I will continue with interpret relevant national laws (see Chapter 3),
and apply criteria to measure against the level of adaptivity of the law to climate
change impacts in Chapter 4.
With the ongoing legal development in environmental sphere, my objective is to
assess how adaptive and how resilient water law is in the agricultural sector to the
effects of climate change. I wish to offer an insight into the level of legal resilience
over environmental changes, highlight strength and/or weaknesses found in the
current legislation, and offer recommendations.
In the following sections I will firstly address adaptive law, its advantages and
limitations and potential practical applications and examples, from which I will
present a criteria of assessment for our analysis. Secondly, I will identify and interpret
primary laws and policy processes that oversee management and usage of water in
agricultural sector in irrigation, and outline strengths, gaps and barriers of its design
and effective management. Thirdly, I will use criteria of assessment to analyze
whether the laws in place are adaptive, and whether adaptive law theory is applicable
to water management in agriculture in Kazakhstan. Finally, my concluding thoughts
will also provide general recommendations based on my evaluation.
7
2 ADAPTIVE LAW AS A WAY FORWARD
2.1 Definition and need for adaptive law
The aim of this chapter is to elaborate on adaptive law and establish a methodology
for my analysis based on adaptive law theory. The output of this chapter is the
proposed criteria of assessment for legislation related to water management in the
agricultural sector in Kazakhstan.
With the rapid climate change related risk that has been most devastating in the past
few years, legislation needs to keep up with continuing impacts. Legislative stationary
and reliable attributes in managing the environment have been derived from “a
decision-making process that depends heavily on a culture of comprehensive rational
planning and prescriptive evaluations”.18 This approach to environmental law relies
on fixed and comprehensive analytical tools prior to a legal decision, and on the
assumption to comprehensively predict and assess impacts of this decision. 19
However, this approach constraints legislative flexibility due to its strict pre-
determined system of actions that does not take into account continuous large-scale
changes in the environment, and limit administrative capacity to adjust their
processes. As a result, this rigid nature could be less suited to manage fluctuations in
environment, especially in the context of climate change. It presumes static and
particular conditions in the environment, whereas in reality fluctuations in
ecosystems, management of natural resources and the impacts of climate change are
not easily managed by inflexible structures of law.20
Adaptive law reflects the ability of regulation to maintain resilience by its ability and
capacity to respond to changing environments while maintaining intended aims and
functions, and continuously reflecting available scientific knowledge to inform the
function of the management system.21 This form of adaptive management in natural
resources use has been referred to as a pursuit of management and learning, where
learning by doing and adjusting management to reflect the learning and new facts are
18 Craig – Ruhl 2014, p. 4. 19 Ibid. 20 Arnold – Gunderson 2013, p. 2-5. 21 Soininen – Platjouw 2018 (Brill, forthcoming), p. 3.
8
key ideas.22 The core idea of this decision-making processes is through structured
“multistep, iterative process for adjusting management measures to changing
circumstances or new information about the effectiveness of prior measures or the
system being managed”.23 Adaptive law does not necessarily take away from the
front-end regulation, but it aims to add to it by allowing iterative decision-making
processes 24 , which enhance management adjustments. Importantly, an adaptive
system in a regulation can also include elements from direct regulation, economic and
voluntary instruments, striking the balance between the rule of law and policy
instruments. These can include economic and voluntary tools, which can encourage
and enable innovation from versatile and polycentric system of management, and the
trick here is to maintain coherence among these different aspects, tools and regulatory
instruments.25 Adaptive law requires information in order to function, as it is relying
on different sources regarding environmental, economic and social feeds. It
encourages involved agencies to make decisions freely and more frequently,
following a structured protocol comprised of multiple steps.
Principles and primary traits for adaptive management have been identified as:
flexibility to deal with change; subsidiarity and connectivity in the form of openness
to enable participation and multi-level governance and management; and iterativity
where structures promote learning and adaptivity.26 Specifically, principled flexibility
can be described as flexibility that recognizes the distinction between uncontrollable
climate change and anthropogenic climate change, and implements consistent
principles for adaptation strategy. In other words it deals with uncontrollable climate
change impacts to achieve general adaptation goals addressing principles first 27 .
Therefore, adaptivity would require substantive flexibility of the law for the managers
to adjust their decisions, as well as procedural iteration and enabled learning for
planning and management. Hence, both substantive and procedural elements are
needed for adaptive law to function effectively.28 Substantive mechanisms refer to
22 Walters – Holling 1990, p. 2060-2062; Williams – Brown 2016, p. 255; Williams 2011, p. 1346,
Termeer el al 2011. 23 Craig – Ruhl 2014, p. 1. 24 Ibid. p. 7. 25 Soininen – Platjouw 2018 (Brill, forthcoming), p. 8; Arnold – Gunderson 2013, p. 13-18. 26 Clarvis – Allan – Hannah 2014, p. 99. 27 Craig 2010, p. 17, 64. 28 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4,10.
9
clear goals that reflect available scientific knowledge, such as established standards
for water use or guiding principles.29 These goals require diverse consideration for
environmental, social and economic features and aspects, and would either require
narrow scope with a set of adjustable exemptions or a broad scope with strong
environmental safeguard system in place.30 Substantive elements of the law can be
found in goals and aims of the legislation, which should also outline principles and
justified substantive standards.
Procedural mechanisms refer to specific tools through an iterative process involving
monitoring and feedback loop systems to enforce and implement these goals.31 These
would not only ensure rights for information access, for participation and access
justice, but also connectivity towards implementation of substantive goals through an
established long term planning process.32 This iterative multi-step process towards
adaptivity is outlined as: (1) definition of the problem, (2) determination of goals and
objectives for management, (3) determination of the baseline, (4) development of
conceptual models, (5) selection of future actions, (6) implementation and
management actions, (7) monitoring, and (8) evaluation. 33 Such steps begin a
continuous revision of the subject matter and systematically reducing uncertainty,
which is precisely what is needed in managing water resources in the context of
impacts resulting from climate change.
An iterative process could be a costly and time-consuming process, yet it offers a
solution from the start, which arguably may be less costly than managing impacts that
are much worse in the future. Adaptive management is increasingly emphasized to be
valuable in cases of uncertainty that poses risks for the subject matter of the
legislation. As a result, the triggered system of adaptive management will rely on an
iterative process to ease management of natural resources and environmental issues
by systematically reducing uncertainty aspects. This also enables information
production and management decisions made concurrently34, making it more feasible
29 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4 30 Ibid. p. 7 31 Ibid. p. 4 32 Ibid. p. 7 33 Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research
Council 2004, p. 332-335; Craig – Ruhl 2014, p. 7. 34 Biber 2013, p. 942.
10
to enable flexibility. The processes can be passive and active, where active adaptive
management requires experimentation and duplications, while passive is reliant on
desk analysis. Active adaptive management encourages the use of diverse strategies of
management techniques.35 For this to be practical and effective, procedural safeguards
are needed in order to establish a loop system for easy decision-making and hold
relevant managers accountable. 36 Examples can include review processes and
standards. This can be done with high levels of monitoring of the environment in
order to collect data and analyze results.
Adaptive management in law results in a resilient legal system that is consistent “in
overall behavioral structure notwithstanding continuous change of external and
internal conditions”37, which can be interpreted both in the context of legal design,
addressing structure and processes, and the stability of overall substantial context. In
other words, a resilient system has the capacity to maintain to a certain extent the
same function and structure, while it is undergoing change caused by external
influences and disturbances. Applying resilience principles in the normative context
may be challenging, but it is crucial. Ruhl has made sense of resilience theory that is
first derived from natural and social sciences, and now interpreted in the context of a
legal design.38 A prominent feature of resilience highlighted by Ruhl is “the capacity
to maintain high level of consistency of behavioral structure in the face of a dynamic
environment of change”.39 Principles and primary traits for adaptive management
have been identified as: flexibility, subsidiarity, connectivity and iterativity,40 hence it
can concluded that adaptive management is expected to enhance resilience of a legal
system to disturbances on various scales.
Adaptive management is a very difficult and different system to the current front-end
type of legal management of issues. As a result, it is important to first address the
current system’s potential and risks, and assess whether the benefits of using adaptive
management in a certain legal context are bigger than costs. In order for adaptive
management to be successful and efficient, there needs to be certain features and
35 Biber 2013, p. 946. 36 Soininen – Platjouw 2018 (Brill, forthcoming), p. 6; Keessen – van Rijswick 2012, p. 40-41, 46. 37 Ruhl 2011, p. 1379. 38 Ibid. p. 1373. 39 Ibid p. 1375. 40 Clarvis – Allan – Hannah 2014, p. 99-100.
11
conditions to the system of management. First condition is the balance between high
uncertainty and controllability and the low risk of a management problem in a system.
Uncertainty refers to decision-maker’s level of knowledge, understanding of
information with regards to the context of regulation responding to environmental
changes. Controllability refers to the level of control the decision-makers has over
regulatory environment. Risk refers to the possibility of backfiring and adverse
consequences in intervention and experimentation of the problem in management.41
The aim is to reduce uncertainty using the iterative process mentioned above, and if
uncertainty is low, then investment of time and resources is not necessary. If
controllability is low, then the chances of management effectively affecting the
system in an intended manner are low. If the risk is high, then this could lead to
backfire of investment and resources.42 This is a very clear and simplified requirement
to consider before weighing the costs and benefits of adaptive management in law. I
will also assess these conditions in my case study.
Second condition is the decision-making environment. This refers to both practical
and political suitability. For practical application of adaptive management we need:
clear goals for design management, monitoring and evaluation of alternative
governance options; enabling environment for implementation of its core features,
such as monitoring methods; available set of management and governance
possibilities, which enable testing and comparison for better decision-making; and the
matching time for both policy timeframes and adaptive management
implementation.43 For political environment, the agency needs to have continuous
reliable resources for monitoring, experimentation and assessment of the environment
and decisions. This is demonstrated through continuous financial and political
support, as well as active stakeholder engagement.44 Craig and Ruhl also highlight
that adaptive management in law can also compliment front-end regulation in order to
facilitate overall priorities of the policy.45
41 Allen – Gunderson 2011, p. 1380-1383. 42 Craig - Ruhl 2014, p. 19-20. 43 Ibid. p. 23. 44 Ibid. p. 23. 45 Ibid. p. 25.
12
Adaptivity is a broad concept, and in order for me to successfully assess Kazakhstan’s
water legislation applicable to agricultural use, specific criteria of assessment is
needed based on the existing research. The following are some of the outlined criteria
of assessment I have identified: iterativity, flexibility, connectivity, subsidiarity as
primary principles for adaptive management 46 , and maladaptive vs. adaptive law
features comparative table47. I’m intending to combine these criteria in Chapter 2.3,
with the structured focus on Arnold and Gunderson’s table in order to determine a
precise set of analytical tools to measure adaptivity in water regulation.
2.2 Critique of adaptive law
Criticism towards adaptive law has focused on the following themes: its ability to
handle uncertainty, its cost to change management practices, and its ability to improve
resource management. Biber has highlighted these problems; in addressing issues
with uncertainty, Biber has identified limits of large-scale environmental concerns,
problematic necessity of longer time to manage and apply adaptive management,
limits towards necessary monitoring requirements, needed institutional continuity and
patience, and problems of learning if dynamics of an environmental resource is too
high and not useful. 48 All of these issues require full attention of responsible
authority, which is difficult to achieve in practice, yet it can be worth the time and
attention if deemed to benefit from adaptive management techniques. When referring
to costs, direct costs of adaptive management refer to needed resources (time, money,
attention and consideration of decision-makers) and lost opportunities of regular
management by changing to adaptive management system.49 But it’s important to
consider that the intention of adaptive management in law is that benefits of these
costs will outweigh the costs of not taking action. Costs to flexibility comprise of
uncertainty for investors and developers and particularly local communities, creating
social, economic and psychological costs. Moreover, the risk of abuse by authorities
is higher as a result of flexibility and discretion allowed by adaptive management.
This is also in combination of reduced procedural requirements for decisions to be
made, which can take away public participation and judicial review.50 All of these
46 Clarvis – Allan – Hannah 2014. 47 Arnold - Gunderson 2014. 48 Biber 2013, p. 940-945. 49 Ibid. p. 945-946. 50 Ibid. p. 948-949.
13
problems with flexibility are valid risks, and it is important to be very careful when
adjusting the management options towards adaptive management. Finally, Biber
brings up the limits to the ability of adaptive management to improve management in
face of environmental uncertainties at all. This is emphasized in his point that
adaptive management cannot solve disputes over an issue that stem from
disagreements in values or conflicts, and instead are suitable for issues where there is
an understanding of shared and common priorities and goals.51 This an interesting
insight in assessing the relevance of adaptive management in legal context as it
emphasizes the importance to assess whether adaptive law can be useful in addressing
a certain environmental concern. In response to these problems Biber has concluded
with solutions in a form of relevant criteria for adaptive management to work. In
order to not undermine its own objectives, processes and address an environmental
uncertainty, adaptive law needs:
(1) a scale of time and place that enables multiple management and regulatory
options and/or monitoring of these options
(2) sufficient time to provide information before making groundbreaking
decisions
(3) institutional and legal structures that ensure high monitoring quality and are
stable over a longer period of time
(4) evidence that ensures that benefits outweigh the cost of adaptive management
(5) flexibility, which does not offer unacceptable levels of uncertainty for society,
and does not undermine adaptive management because of political issues and
pressures
(6) sufficient agreement on management and regulatory goals
(7) dynamism and uncertainty that justify adaptive management need52
Moreover, it is important to consider how these identified conditions can improve the
level of adaptiveness if facing challenges. Lawmakers need to assess how these
conditions can improve adaptivity in law through a careful consideration to what is
missing in their current set up and how additional systemic and conditional features in
their legal processes can move away from current problems with rigidity. To answer
challenges of adaptive management and law, Craig and Ruhl have highlighted that
51 Biber 2013, p. 956. 52 Ibid. p. 957.
14
adaptive management is not suitable to replace all law and cannot be applied in all
contexts; specific circumstances where adaptive law is not applicable have been
identified as: where long-term stability in decisions is paramount, where implemented
decisions cannot be easily changed, and where the agency’s final authority towards a
decision is essential.53 Therefore, adaptive law should be implemented in instances
where it benefits the subject matter of the law and enhances managerial effectiveness
of the law. This is seemingly most matter-of-fact explanation, yet it is important to
emphasize that adaptive law is not applicable to everything.
As a result, it’s important to ask whether the law should be adaptive for a certain
circumstance. This is answered by assessing the way that the law operated over its
subject matter, and analyzing the subject matter itself in order to define the level of
uncertainty, the costs of installing adaptive management options, and whether this
would benefit the case at all. More importantly, as emphasized earlier, it is very
important to assess and confirm that adaptive management tools will benefit the
practice of the law over management of natural resources. This assessment of the
system itself and whether it can use adaptive management and the results are foreseen
to be reliable, then it is most advisable to apply adaptive law. In cases where this
assessment bears more costs than benefits, then it is concluded that adaptive law
would not be useful and would spur further issues. As a result, changing the
management of the system of laws is a groundbreaking and costly at first step, yet if it
can prove its potential, then the risk is worth taking.
More criticism has been coming from applying adaptive law in practice. There are not
many examples of adaptive law in practice, and based on available literature and
assessment, most have not showed effectively the benefits of adaptive law due to its
challenging nature. The complex institutional and value requirements for adaptive law
can hardly inspire success if they are not firmly in place. Moreover, the complex
nature of adaptive law and the challenge of taking into consideration multitude of
relevant actors among other complexities and multimodalities make it difficult to
implement adaptive law in practice on a large scale perfectly. For instance, in the
European Union (EU) the Water Framework Directive, the Floods Directive and the
53 Craig and Ruhl 2014, p. 13.
15
Water Scarcity and Drought Strategy are considered to be resilient and adaptive
towards the impacts of climate change.54 Although there are weaknesses highlighted
that emphasize the challenges of implementing adaptive law in practice: complexity
of harmonizing legislation in the context of “institutional and procedural autonomy of
the Member States”. Precisely this feature has led towards an insufficient regulation
on sustainable use of water resources, and on freshwater resources distribution, which
hinders the balance of water right and use between and within societal groups.55 The
resulting challenge identified in EU water law with regards to resilience and
adaptivity is in managing differing interest groups in a complex system of governance
of autonomic states. This suggests that even with a proper institutional set up,
balancing empowered interest groups in a complex environment does not ensure a
clear solution. Finding ways to enforce the law is as important as its design and
institutional functioning. Nevertheless, EU water law offers a mixture of authorities
and inclusive of administrative set up per river basin, as well as a strong disclosure
and public participation clauses, which set up adaptive and resilient institutional
settings of the water law. Not only these requirements enable monitoring, assessment
and public involvement, but they also enforce a 6-year long planning cycle that
enables a change in the law that meets environmental and societal needs.56 Primary
EU water law offers an example of a regulation that actively uses adaptive
management and resilience theories, and therefore is considered to be an example of a
functioning adaptive law system, with a few considerable challenges in its design and
implementation. The EU case demonstrates the value of strong foundation for
institutional organization, and it is important to consider whether adaptive law can
function in a country with risks of corruption and brittle institutional setting. In
Chapter 4 I will discuss how Kazakhstan would face these challenges and what could
be done to improve an enabling environment for adaptive law.
2.3 Developing criteria for measuring adaptive law
Therefore, adaptive law is defined by a process and design configuration of a legal
system responding to environmental changes that allow an extent of administrative
flexibility. In other words, in order for the law to be adaptive, we need to look at the
54 Keessen and van Rijswick 2012, p. 49. 55 Ibid. p. 41. 56 Ibid. p. 41.
16
structure and processes of the law, and entirely the substance. For example, on
managing water quantity in agricultural sector, factors such as the potential for
monitoring, availability of data and information, potential to change land-use plans,
long-term planning instruments, capacity building, consistent sectorial meetings and
others, could ease legal capacity to adapt to environmental changes. Moreover,
scholars have argued that the law has to be adaptive in order to be effective against
climate change impacts.57 But how do you measure the level of adaptivity, what does
the answer tell us about the legislation?
Importantly, adaptivity of law is very difficult to measure and apply to context and, as
a result, it is written in very broad definitions, which is one of its biggest flaws, as it
does not provide for legislative certainty, and also its biggest strength, as it allows that
flexibility aspect suitable in environmental governance. Ruhl has argued that in order
for environmental law to be adaptive it needs to embrace and take the most out of
structural aggregation of organizations, efficient and informative information flows,
capacity for flexibility and nonlinearity, diversity in encouraged learning of the
system, and self-criticism on its ability to adapt, and this would mean to rely less on
details and propose guiding principles, which would inform the law on how to act and
behave in response to a changing subject matter. 58 Ruhl argues for sustainable
development, adaptive management and maintaining of biological diversity as the
guiding principles for adaptive environmental law.59 In order to measure adaptive
management approach we need information.
In developing criteria of assessment of adaptivity for water regulation in agricultural
sector in Kazakhstan, I will draw on literature and leading scholars of adaptive law.
The criteria of assessment will be a combination of proposed features of effective
adaptive law models and propositions, which would be the first one applicable to a
developing country. I will take into account that Kazakhstan is an economy in
transition and may have other challenges than the experience of developed countries.
In choosing criteria my aim is to pick up on most valued and relevant features of
adaptive law that would benefit the adaptivity of water law in agricultural sector.
57 Ruhl 2013, Craig 2014, Djalante and Holley 2011, Eckstein 2009, Folke 2005, Green 2013, Pahl-
Wostl 2007. 58 Ruhl 1997, p. 991. 59 Ibid. p. 992-999.
17
Scholars have identified some of the guidelines for principles and features on how
adaptivity criteria should be designed, such as: iterativity, flexibility, connectivity,
subsidiarity60, resilience evaluation criteria61 and maladaptive vs. adaptive law table62,
which specifically assesses the law’s adaptivity based on four aspects of assessment in
the laws: goals, structure, methods and processes. I am also referring to Soininen and
Platjouw for additional guidance relating to overall formulation of the general
direction of adaptivity criteria. 63 Importantly, these criteria highlight not only
substantive and procedural elements of adaptive law, but also present implementation
and compliance tools that ensure enforcement. Iterativity, flexibility, connectivity,
subsidiarity criteria addresses both substantial and procedural requirements for
adaptive law, and is relevant to both direct regulation and other policy instruments.
Resilience evaluation criteria and maladaptive vs. adaptive law table both engage
direct regulation, and elaborates on both substantive and procedural features of the
law. I will elaborate more on each set of criteria below.
Principles of iterativity, flexibility, connectivity, and subsidiarity are as follows:
iterativity relates to the generation and application of information and knowledge.
Flexibility addresses the capacity to change and adjust to the overall changing
conditions as a result of climate change. Connectivity relates to networks between
sectors for mobilization and collaboration. Subsidiarity is about implementation of at
ground level.64 All four become primary aspects of adaptive governance are reiterated
in literature in some form or another. 65 Clarvis, Alan and Hannah have clearly
outlined primary features of processes and mechanisms of adaptive governance in
water resources management drawn from analysis of success stories and discussed
experiences drawn from experiences all over the world below.
60 Clarvis– Allan – Hannah 2014, p. 98-110. 61 Keesan – van Rijswick 2012, p. 40-41. 62 Arnold – Gunderson 2014, p. 317-364. 63 Soininen – Platjouw 2018 (Brill, forthcoming). 64 Clarvis– Allan – Hannah 2014, p. 102. 65 Lockwood et al. 2010, p. 991-997; Craig 2010, p. 40-70.
18
Table 1. Governance mechanisms identified for adaptive and flexible governance systems
This table highlights the four principles of adaptive governance that balance
flexibility of these approaches and provide actual mechanisms that demonstrate each
principle. These governance mechanisms have also been weighted against their
potential for dealing with uncertainty. Primary water governance mechanisms
identified for adaptive management from the table above are procedural tools for
adaptive law: water management review periods, varied rights to water use and
access, established water use permit system, use of entitlements as share of resource,
administrative requirements, water rights trading, coordination between sectoral
management authorities, and consultation processes.66 Substantive tools identified are
primarily standards: locally appropriated standards (secondary legislation),
qualitative, quantitative and monitoring standards.67 These offer concrete examples
that can be reflected into practice, and introduce a starting point to decision-makers to
incorporate relevant instruments to make the laws more adaptive. In order to measure
these criteria, I will assess assign each instrument against goals, structure, methods
and processes of the law from Arnold and Gunderson’s maladaptive vs. adaptive law
table.
66 Clarvis– Allan – Hannah 2014, p. 104, 106. 67 Ibid.
19
Moreover, as emphasized earlier, adaptivity of the law needs substantive flexibility
and adaptive procedural safeguards to be effective. Thus, I will also look for duty to
give reasons, access to justice, monitoring standards, continuous review periods,
availability of multi-sourced data. Importantly, coherence among available
instruments and tools is key to ensure intended functions of adaptive law.68 In the
context of water management in irrigation, not every proposed method is relevant, and
an equivalent of some of them might need to be developed when assessing the case
study in Kazakhstan. I will use these highlighted mechanisms that encompass primary
features of adaptive management in law and are drawn from practical examples as
some of the indicators of adaptivity in the assessment of water law in irrigation
practices in Kazakhstan.
Keessen and van Rijwick have developed a resilience evaluation criteria to assess how
resilient and adaptive is EU water law. The criteria establishes guiding elements and
features to consider when assessing the law based on its resilience, and it showcases a
simple logic in understanding how these are demonstrated in practice.
Figure 1: Resilience evaluation criteria69
The figure above is based on adaptivity and resilience research and reflects principles
outlined by Clarvis, Alan and Hannah on iterativity, flexibility, connectivity and
subsidiarity. This criteria also adds an additional layer of balancing flexibility and
legal certainty, which is can be demonstrated in goals, objectives and exemptions that
provide clear justifications, expert opinions where necessary, disclosure and flexible
standard setting in both substantive and procedural obligations.70 It highlights access
to justice and participation in decision-making processes by the public and relevant
68 Soininen – Platjouw 2018 (Brill, forthcoming), p. 9. 69 Keessan – van Rijswick 2012, p. 49. 70 Ibid. p. 44-46.
20
actors and stakeholders. 71 Importantly, resilience evaluation criteria focuses on
effectiveness of the legislation, where the legal framework enables achievements of is
goals by providing conditions necessary such as enforcement mechanisms and
implementation paths.72 All of these structural and purposeful features of an adaptive
and resilient law must be assessed in a structured way in order to establish clarity in
understanding how the legal framework can withstand climate change disturbances.
Arnold and Gunderson have developed maladaptive vs. adaptive features comparative
table (see Table 1), which lays out features of maladaptive and adaptive law based on
environmental change of conditions, and against goals, structure, methods and
processes of the law. This approach offers a complex yet systematic outline on how to
assess the system of law.
Table 2. Features of Maladaptive and Adaptive Law73
71 Keessan – van Rijswick 2012 p. 42-44. 72 Ibid. p. 47-49. 73 Arnold - Gunderson 2014, p. 6.
21
First feature focuses on aims and goals of the law that would need to build resilient
capacity for the environment and the society with equal regard. In other words,
Arnold and Gunderson have identified this feature as a poly-resilient legal system,
which emphasizes the need to focus on adaptive capacity of both institutions (federal
and non-federal) and ecosystems. Moreover, a poly-resilient legal system also serves
as a bridge between science, policy and people. In order for this to be effective, the
law has to emphasize and focus on co-benefits for environment, society and law74,
which would serve as an incentive for involved stakeholders, communities and
decision-makers to uphold environmental standards set up by adaptive management.
This is especially important for the adaptive law itself to recognize, facilitate and
enforce co-benefit mentality into its governance. Therefore, goals are intended to
offer a holistic vision and intent to manage subject matter, in our case water law in
irrigation. In my research, I can draw this from the Water Code’s objectives in the
general section, and preliminary documents of the law drafting. I will be looking at
links and information on the focus of the law and any connection to co-benefit system
or emphasis on poly-resilience.
Second feature refers to adaptive law structure, referring to polycentricism with a
focus on multimodal and multiscalar responses. Polycentricism is identified by
multiple sources of authority and decision-making, where emphasis is drawn from
both governmental and non-governmental sources; direct regulation and economic
and voluntary instruments play a large role here. Arnold and Gunderson argue that
polycentricism is beneficial for resilience and adaptivity of the law because it allows
experimentation and innovation, enables risk diversification, characterized by
redundancy of resources, and enables better problem solutions based on diversified
scales, scopes and speeds of problems.75 This feature can also be referred to as a
decentralized system of decision-making, which is one of the defined features of
emergence of new environmental governance I addressed earlier. Multimodality refers
to the use of multiple methods in addressing policy goal in an integrative manner,
which draws from facilitation of multiple actors’ methods and tools to address a
problem. 76 Multiscalar responses refer to the multiple scales of ecosystems and
74 Arnold - Gunderson 2014, p. 9-12. 75 Ibid. p. 13-14. 76 Ibid. p. 14-15.
22
institutions, such as environmental, social, legal, economical, local, national, regional
etc. The need for nuanced multiscalar strategies and structures is emphasized.77 In my
research, I will look for indications of poly-centrism, and multimodal and multiscalar
qualities of the law in the Water Code, secondary legislation and ministry documents.
Third feature in assessing adaptivity of law refers to methods, which are meant to
facilitate resilience through adaptation to changing conditions, standards that rely on
context, tolerance for uncertainty, flexible discretionary decision-making. The
following methods have been highlighted, which would balance flexibility:
discretionary decision-making governed by standards and context; adaptive planning
and management; and evolution of the law in discussion.78 Arnold and Gunderson
highlight that discretion is not the problem, it is the standards appropriated to relevant
context that is lacking for it to perform as needed. These standards should consider
environmental and social context and the long-term impact. When addressing
adaptive planning and management accountability mechanisms are highlighted. In
terms of the context, the evolution of a particular law that is important to the problem
to the changing conditions is important to consider when achieving resilience.79 In my
research, I will look for indications of these methods and qualities of the law in the
Water Code, secondary legislation and ministry documents.
Finally, the fourth feature refers to processes of adaptive law, focusing on an iterative
process with feedback loops and accountability mechanisms. Feedback loops inform
decision-makers on whether the decision is adaptive or not by monitoring, assessing
and learning from and adapting to the decision. It is important to highlight here that
this process is continuous, and the need to evaluate impacts over time is necessary. It
is also important to define standards and boundaries that can be accountable for and
can have an impact on the level of resilience. 80 In my research, I will look for
indications of an iterative process of decision-making and accountability mechanisms
in the Water Code, secondary legislation and ministry documents. The formulation of
these goals is very important to inform resilience of structures, methods and processes
of the law.
77 Arnold - Gunderson 2014, p. 17. 78 Ibid. p. 18. 79 Ibid. p. 21-23. 80 Ibid. p. 23-29.
23
2.4 Criteria of assessment
These key features are very difficult to measure in practice, and would need further
analysis based on the legislation. To combine these criteria I will take away the
structure of comparison table, key governance mechanisms from principles, key
principles for climate change adaptation law, and key limitations needed for adaptive
management to function in legal context. Importantly, the table below reflects
substantive and procedural elements of adaptive law, compliance and enforcement
tools, as well as safeguard features of these processes. Overall coherence needs to be
kept in mind in order to follow through and along adaptive and resilient processes of
the regulation.
Thus, precise set of analytical tools for this assessment is outlined in Table 3 below.
Each set of instruments and features of adaptive law have been aligned against goals,
structure, methods and processes of the law. As a result, the goals and structure of the
law refer to more substantive feature, while methods and processes refer to procedural
features. When addressing the feature of the irrigation law in Kazakhstan, I will assess
whether it has any of the relevant processes and instruments listed to the right. The
law will be considered overall adaptive if it fits more than half of the criteria or at
least 2 of the features are evident. In that situation the less adaptive features of the law
will be discussed and a set of general recommendations based on those will be
revealed in the final chapter.
Adaptive Feature Demonstrated by the following tools and
items in the regulation Substantive
element:
Goals
• Resilience with co-
benefits and attention to
adaptive capacity
• Goals with either wide or narrow scope
and exemptions (outlined in general
section of the law)
• Duty to provide reasons to changes in
the law using scientific knowledge for
justification
• Coherent and complimentary goals in
relating regulation and instruments
Procedural
element:
Structure
• Polycentric and utilizes
multimodal and multi-
scalar responses
• Multiple sources of authority for
decision-making enabling autonomy and
effective coordination via consistent
sectoral meetings
• Availability of multi-sourced data and
information
• Complimented by policy level and
economic instruments
24
• Law governs hydrological boundaries
(ex. river basins) and not administrative
boundaries
Procedural
element:
Methods
• Adaptation to changing
conditions
• Standards relating to
contexts
• Flexible discretionary
decision-making
• Consideration for environmental and
social context and the long-term impact
through long term planning instruments;
• Quantitative standards, including locally
appropriate standards
• Permit systems: time limited licensing
• Consultation processes
• Enabling of a learning environment
Procedural
element:
Processes
• Iterative process with
feedback loops
• Accountability
mechanism
• Procedural flexibility and
safeguards
• Enforcement and
compliance mechanisms
• Review periods and overall monitoring
of multiple indicators, which enables
scientific and social learning (lessons
learned)
• Disclosure and participation in decision-
making for all actors
• Access to justice
• Clear coordination, enforcement
procedures and implementation paths
• Non-compliance processes
• Binding obligations
Table 3. Adaptivity criteria for assessment of the law
25
3 REGULATION OF IRRIGATION IN KAZAKHSTAN
3.1 Contextualization of irrigation issues in Kazakhstan
This section elaborates further on Kazakhstan’s current situation regarding climate
change, water management and security, and legislative issues that are in place.
Climate change poses important consequences for water governance both in law and
policy, especially in the perspective of environmental protection, social and
institutional protection and in maintaining sustainable development goals; in the
context of Kazakhstan, these environmental changes cause an even bigger challenge
to the already problematic management and use of water resources.
This is visible in water quantity reduction and challenging institutional arrangement
affecting water use. Central Asian continental climate conditions establish Kazakhstan
as one of the driest country in Asia. Its water resources, both groundwater supply and
surface water supply, are highly affected by agricultural practices, municipal
watershed practices, industry activities and quality of transboundary water flow in the
country. The rate of desertification in the country is 66% of the land, which is further
impacted by expected climate change effects. 81 Kazakhstan’s National
Communication III-VI to UNFCCC highlights heavy impact of climate change on the
economic growth, particularly the agricultural sector, where irrigation practices, and
available drinking water supply remain most vulnerable.82 This is especially volatile
as the country’s agricultural activities took up over 2,5 million hectares of land in
2000, and bad practices have degraded the land of which 40% has been deemed
unusable anymore in 2013.83 Agricultural activities take up only 4.8% of the GDP84
and approximately 73% of the total water demand is in irrigation85. The government is
intending to increase its agricultural capacity and contribute more to its economic
development 86 , yet there are few signs indicating consideration of institutional
improvement over water management, of environmental impact on land and water,
and of climate change adaptation strategies in an already struggling water
management system.
81 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 14. 82 Ministry of Environment and water resources of the Republic of Kazakhstan - UNDP Kazakhstan -
GEF 2013, p. 12. 83 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 14. 84 The World Bank Group 2016. 85 Global Water Partnership 2009, p. 10. 86 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 4.
26
Average air temperature has been increasing annually with the speed of 0.28 ºС every
10 years,87 and already expected environmental impacts include decrease of water
resources. Extreme weather events related to water have been steadily on the rise
affecting population and the economy, which has cost the government approximately
68.6 million USD between 2002-2011 that primarily were in the form of droughts,
floods and landslides. 88 Moreover, as a result of bad agricultural and irrigation
practices, land degradation and desertification processes increased; 66% of the total
area of Kazakhstan is prone to desertification.89 Considering bad water use practices,
the current expected water usage, and negative climate change impacts, the
government expects decrease of water flow by 11.43 km/ year out of 44 km/ year by
2040. 90 Kazakhstan has 8 primary river basins among which administrative
governance has been split. Each river basin is spread across several oblasts (states) of
the country, where local executive bodies (akimats) are responsible for further
implementation and offering information for CWR. Among 8 river basins there is a
total of 22.8 km3 /year of water resources available, of which 12.2 km3 /year is used
for irrigation.91 Groundwater supply is heavy, approximately 15.4 km3 /year in 2013,
but the usage is untapped to its full potential as a result of limited development and
differing uses between regions. 92 Overall, current water resources are not used
efficiently, and with increasing climate change impacts and inefficiency, Kazakhstan
will face major issues in the future.
To elaborate on water shortages issue, I will briefly outline regional environmental
landscape. This is not the focus of my research, but it is important to consider the
weight of the sensitive situation regarding water flow decrease and an important for
effective management. With the increasing impacts of climate change, Kazakhstan is
a vulnerable region to droughts and floods; which can be seen through rapid changes
of water flows in the Syr Darya river basin and shrinking of the Aral Sea.93 The
87 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –
GEF 2013, p. 14. 88 Ibid. p. 12 89 Ibid. p. 15 90 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7, p. 22-28. 91 Ibid. 92 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 10. 93 McKinney 2003, Wegerich et al 2015.
27
literature highlighting vulnerability of Central Asian region to heightened impacts of
droughts also emphasizes human-made contributions to the ongoing struggle to
maintain stable water levels.94 Kazakhstan is a downstream country, where 50% of the
total surface water comes from China, Russia, Uzbekistan and Kyrgyzstan. 95
Specifically to water quantity issues, upstream countries Kyrgyzstan and Tajikistan
are directing that water for hydroelectric dam operation, restricting water flows to the
other countries that use water for irrigation.96 While downstream countries heavily
depend on water supply from those rivers, which is inefficient and over-extensive.
With increasing climate change impact in melting of ice sheets in the mountains and
increase in temperature have facilitated increased river flows and desertification.97 As
a result, Kazakhstan is both facing possible water scarcity as a downstream country,
which makes this a political issues, and due to dry conditions and surface water
management issues. As a result, Kazakhstan is facing a problematic challenge in
managing its water resources, not only with maintaining its regional water politics and
transboundary water agreements, but also with internal management of water use,
particularly for agricultural purposes.
Incidentally, the government has sought to achieve more efforts in mitigation front,
with no explicit mention of adaptive policy or regulation planned in the country
frameworks for developments.98 Water security issues do not stem only from lack of
usable water resources, but also from institutional arrangements, management and
regional political context.99 Trends suggest poor management in place: water use
decreased to approximately 35% in 2013 based on 1990 levels of water available for
agriculture. 100 For instance, Presidential Decree on “Approval of governmental
program on development of agro-industrial complex of the Republic of Kazakhstan
for 2017-2021” from 2017 No. 420 has highlighted some of the primary issues in
using water in agriculture: lack of efficient standards for irrigation technologies,
which cause low quality irrigational systems where water leakage is common; low
94 Ziganshina 2009, Libert 2008, McKinney 2003, Wegerich et al 2015, Fay et al 2009. 95 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 5-6. 96 UNECE 2011, Wegerich et al 2015. 97 UNECE 2011. 98 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan –
GEF 2013, p. 16. 99 Stucki - Sojamo 2012, p. 399–418. 100 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 13.
28
water prices for users as a result of heavy government subsidies, causing inefficient
water uses; lack of regulation regarding condition standards of irrigation water
facilities and no requirements for technology maintenance. 101 A potential future
problem that may develop as a result of these challenges is food security concerns as
water usage is increasing and water supply depleting, unless water practices and
management in agriculture are changed. Bad practices stem from not only institutional
limitations but also budgetary limitations and ineffective legislation, which have been
identified by the government as one of the 10 issues in managing water resources in
agriculture.102 There has been a lack of financial support to monitor and control of
water usage.103 Specifically, the institutional arrangement over water management has
not been clearly outlined by neither the Water Code, the Land Code, nor CWR under
MOA. As a result, existing institutional arrangements and lack of clarity and capacity
only contribute the already questionable water situation in Kazakhstan that is
increasingly susceptible to the rise of temperatures. For instance, there is a significant
lack of coordination between responsible institutions, particularly where several cover
the same river basin; this is the result of the lack of transparency regarding all water
management issues in the face of regulatory compliance. 104 Sound institutional
arrangements are key in maintaining good management practices.
Nevertheless, current legislation is imperfect to address these encompassing problems
in a holistic manner. The existing water law is rigid in terms of coordination issues
and lack of transparency, especially considering public participation and access to
basic information regarding compliance and monitoring reports. Moreover, the law
does not establish clear responsibilities for implementing agencies, and the result is
lack of coherency in management. Another potential issue is that the current
legislation may not take into account long term, mid-term and short-term changes to
the environment from of climate change.105 For instance, Governmental decree on
water management active 2014-2016 has outlined current situation with water use,
causes of problems and institutional challenges. This is done by CWR from Ministry
of Agriculture and has been approved by the president in 2014, but unfortunately was
101 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 102 Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 26-31. 103 Ibid. 104 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 105 Ibid.; Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p. 26 -31.
29
deemed inactive based on lack of precise guidance ahead. As a result a new
agricultural development decree has been issued as a replacement to emphasize use of
water in agriculture to improve industry performance, where water resources plan has
been addressed, but primary steps have been traded in favor of economic development
of agricultural sector.106
It is important to perceive whether the current irrigation laws are adaptive enough in
the face of clear water issues heightened by climate change. Adapting the system
decreases vulnerability to climate change, and approaching it from a legislative is key
for institutional and management resilience. Moreover, the assessment of adaptivity of
national laws aims at assessing the capacity of the country to adjust their internal
legislation, whereas assessing adaptivity of Kazakhstan international obligations
depends on a negotiation process, which takes into account another country’s interests
and would go beyond the straightforward analysis of adaptive capacity. As was
emphasized earlier, an important condition is the balance between high uncertainty
and controllability and the low risk of the issues of water management in agricultural
sector in Kazakhstan. This is to be measured by addressing the system of irrigation in
place, strength of governance management in contrast with climate change and other
social or environmental impacts affecting water management. The level of uncertainty
is measured by scientific information on variation of climate change impacts in highly
irrigated regions in Kazakhstan. High controllability is measured by the standards and
interventions the law imposes, and by the level of managerial flexibility established.
The low risk is measured by assessing impacts of intervention in management of
irrigation. This is very difficult to measure now, and this is not precisely the aim of
my research, yet it is important to point out that the conditions adaptive management
in law can yield most successful results.
I am interested in how climate change impacts are affecting legal developments and
legal capacity to cover issues arising from fast paced changes in governance,
economy and society at national level. To this end, in assessing irrigation and water
laws in Kazakhstan I am also looking at water management. My aim is to understand
what mechanisms these national laws on water management in agricultural sector
106 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.
30
contain to allow for water management practices to change and adapt to such trends in
Kazakhstan, and how adaptive law can improve them. If adaptive law is requires then
a set methods for measuring adaptivity needs to be developed. I will then analyze the
national legislation, and draw conclusions on ways to develop the national legislation
from an adaptive law perspective.
3.2 Legislation on irrigation
3.2.1 Legal set up
The following addresses primary laws and processes applicable to water law in
agricultural sector, specifically relevant to irrigation of agricultural land. The purpose
of this chapter is to present national water law instruments that contradict climate
change adaptation in irrigation and water use, in both their intention and effectiveness.
As a result of Kazakhstan not establishing a direct legislation towards climate change
adaptation 107 , water law in irrigation must have processes that prepare it to the
inevitable changes. Kazakhstan is a civil law state, which means that its hierarchy of
laws is clearly defined as per Article 10 of the Law on Legal Acts No. 480-V. I will
begin with a closer look at articles in national Water Code, which offer a
comprehensive direction in managing water use in agriculture. I will then look at the
adjacent laws, acts, decisions, governance structures of the law and processes that
stem from the Water Code, in order to understand how the law is designed and what
are the processes involved. I will also link with national adaptation plans and
intentions, which align with water usage priorities of Kazakhstan. Finally, I will offer
my brief assessment of the design of the regulation and its consideration for climate
change impacts.
Here are most relevant laws to water management in irrigation listed in hierarchical
order based on Article 10 of the Law on Legal Acts No. 480-V:
• Codes: primarily the Water Code 2003 No. 481-II and Land Code 2003 No.
442-II
• Laws
• Presidential decrees
107 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan
– GEF 2013, p. 16.
31
My assessment focuses primarily on Water Code and Land Code while references to
other related laws and presidential decrees will be stated as an action derived from
these codes.
3.2.2 Institutional set up
Kazakhstan’s Water Code is a sector specific consolidated normative law, outlining
use and ownership rights with regards to water and water facilities. It has been
divided into the general section and the special section, where it addresses more
specific condition of water use and management. The State exclusively owns all water
bodies and land occupied by them (Article 7): CWR is an authorized body of the
MOA established to manage all water resources in usage and protection, highlighting
very centralized focus of water governance in Kazakhstan.108 CWR is charged with
implementation and control of water use and protection, as well as with issuing
permits and approvals for water use.109
MOA has issued a decree on the CWR’s range of responsibilities 2014 No. 19-5/519,
where its main tasks are to ensure coordination in implementation governmental
policy in water resources governance and control in management of water resources.
Importantly, decisions on provision of water for irrigation purposes are decided by
CWR. This law outlines 24 total functions of the CWR, among which are
development of water use and protection schemes, monitoring of quality and use,
development of informational database available for interested persons, issue decrees
relevant to the Committee’s competency, determine yearly water use limits, ensure
compliance with international agreements on transboundary waters. As a result, CWR
is the primary responsible governmental body that addresses implementation and
management of water resources based on national legislation. It has the authority to
issue laws based on consolidated information gathered from local administrative
authorities: 14 oblasts, municipalities and city akimats, responsible for water supply,
planning and program implementation based on local budgets.110 The role of CWR is
very important when assessing irrigation management, especially when considering
how much weight the Water Code puts on CWR to implement most of its clauses.
108 Al-Fati 2008, P. 152. 109 Ibid. P. 153. 110 Al-Fati 2008, p. 154.
32
Importantly, the Water Code is firmly reliant upon basin management approach,
which has been streamlined into the law in 2004. Chapter 7 Articles 40-43 outline
functions and aims of CWR’s regional bodies, also called basin management
organizations, to carry out management of use and protection of water in basins.
There are a total of eight basin inspection organizations around eight primary basins
in Kazakhstan: Aral-Syr Darya, Balhash-Alakol, Ertiss, Esil, Zhaik-Caspian, Nura-
Sarysu, Tobol-Torgai, and Shu-Talas basin organizations. 111 These basin
organisations are primarily responsible for control and administrative approval of
water user’s declarations and payments, and for reporting and planning to CWR
(Article 40). Moreover, basin agreements are established between basin organizations,
local executive bodies and other entities to coordinate water management activities in
the basin (Article 40).
Article 43 establishes Basin Councils as advisory bodies that are responsible for
consulting and advising participants of the basin agreement, and consist of local
representative and executive bodies, which can cover several oblasts depending on the
basin, territorial bodies, water users and stakeholder representatives. Importantly,
Basin Councils represent the only platform for non-governmental organizations
(NGOs) and other water user representatives to partake in overall decision-making
and governance in a specific basin on management of water112. Article 63 states
provision on activities by public associations in water resources use and protection
that are to be carried out based on the statues reviewed by the government authorities.
Representatives of these organizations are part of the Basin Councils, where they can
express their views and offer recommendations. They are allowed to conduct public
control of water resources use and protection, and base their recommendations on
those findings (Article 63). As a result, there is very limited representation of the
water users in the reports to the CWR, and the crosscutting issues and factors in water
use is lacking. The Basin Council serves only as an advisory role to basin authorities
(Article 43); no other means to reach water governance is available to users, as
government authorities centralize decision-making.
111 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017a. 112Al-Fati 2008, p. 152.
33
Governmental Decree on establishing rules on relations between different oblasts No.
21 states seven rules, which reinstate Water Code articles and add that the Basin
Councils are only formed after basin agreements have been established, and the basin
authority takes their recommendations every year before issuing a decision. The issue
that has been flagged is the lack of coordination and weak communication between
different water resources authorities over functions and management.113 Moreover,
CWR has criticized that it does not have enough authority, independence and capacity
to manage other water bodies in an effective way,114 and limiting budgets have been
distributed so far, both to CWR and river basin organizations.115 As a result, the
implementation of the basin approach has not yet reached its potential due to lack of
clarity in the law on the structure of governance between local authorities and CWR,
and few non-state representatives involved in management of the water resources.
3.2.3 Water Code
The aim of the Water Code is outlined in Article 3 is to achieve and maintain safe and
optimal level of water use and protection in order to protect and improve living
conditions and consider the environment. This based on the new approach on
integrated water resource management and uses, and on sustainable development
principles.116 Integrated water resource management (IWRM) has founds its way in
Kazakhstan’s policy objectives through World Summit on Sustainable Development,
Johannesburg in 2002117, while sustainable development have been streamlined in
Kazakhstan 2030 Strategy118 . As a result, Presidential Decree on the Concept of
Transitioning towards Green Economy No. 577 was developed in May 2013,
highlighting necessary problems with water management and establishing policy
goals towards development of improved water management practices and institutional
arrangements. Moreover, IWRM is also strengthened by the basin approach
established in Chapter 7 of the Water Code, further highlighting Kazakhstan’s path
towards integrated management of water resources. The Water Code also puts
importance to coordination of tasks between different bodies within the boundaries of
113 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 157, 114 Al-Fati 2008, p. 157, 115 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 152,
Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014. 116 Petrakov – Kenshimov 2012, p. 18. 117 Beisembin 2015, p. 16. 118 Strategy 2050 of the Republic of Kazakhstan 2017.
34
a centralized system of governance, which is a step further towards implementation of
IWRM.119 This aspect has been stated in the law but no enforceable procedures or
monitoring systems for communication have been established. Nevertheless, the
presence of IWRM in the law demonstrates State’s commitment to improve
governance of water resources. IWRM definition is in the law, and the aim to achieve
it is established; yet no other enforcement or structural changes have been done. There
is no clear plan of action for this to be implemented in practice in the governance of
local authorities, and very little can be achieved with current uncoordinated system
between different authorities in place.
The role of the Water Code in this endeavor is to direct development of the water
sector and establish priority of water use, as well as clearly stating the role of
implementing agencies and bodies.120 Article 2 of the Water Code specifically states
its purpose to provide a good legal “framework to support and develop sustainable
water use”; manage “use and protection of water resources, irrigation and drainage
systems and water management facilities”; and “development of irrigation and hydro-
technical melioration of lands”. With regards to disaster management, Article 39
paragraph 7 of the Water Code states that local government organizations are
responsible for organizing activities for disaster management, such as droughts. While
Article 40 paragraph 8 states that water management organisations are responsible for
managing consequences from natural and human induced disasters. Moreover, in
relation to use in irrigation, Article 7 allows privatization of state owned lands of the
water fund that have water facilities such as irrigation and water facilities systems of
regional and district significance. This can also be in the form of common ownership
between two or more users, and it is regulated by the Land Code (Article 133). As a
result, water funds remain in the ownership of the government (Article 8), while water
fund’s territory and irrigation facilities can be privatized. Article 29 establishes that
the water facilities for agricultural use are state property, but can be used as common
use if leased or sold to the water users or their associations. Most of these cases the
areas are taxed when used. Regarding common use, MOA’s Ministerial Decree on the
rules of common water use No. 19-1/252 establishes public use of water resources and
facilities without restrictions. Specials zones are established by local authorities to
119 Al-Fati 2008, p. 153. 120 Petrakov – Kenshimov 2012 Part 1, p. 20.
35
separate public water use to agricultural services. Article 29 of the Water Code also
states that certain users can be responsible for maintaining the standards irrigation
facilities under the conditions established by the law. Unfortunately, the maintenance
can be extremely costly and would need approval from the government. Territories
with these agricultural systems that are of special strategic importance to the
government can be partially financially supported regarding maintenance fees.
Chapter 18 of the Water Code Special Section is on the use of water bodies and
facilities in agriculture. It specifically elaborates on the uses in irrigation, where based
on the water use planning documents of water users downstream, the upstream water
users need to prepare annual applications in order to get the necessary water volumes
for their use. Water management authorities shall set water use limits to them (Article
95 paragraph 2). Specialized government agencies conduct monitoring and
assessment of irrigated lands using available budget (paragraph 7). The Water Code
also establishes governmental support to water users in agricultural sector by
introducing water use subsidies (Article 135), which are managed by local executive
bodies of oblasts and akimats (Article 39). MOA’s Ministerial Decree on Establishing
standards for governmental services regarding subsidy provision to water use for
agricultural industries No. 6-4/1072, and Ministerial Decree on the Rules of
subsidizing services for water provision for agricultural needs No. 6-3/597 outline
basic subsidy rules. If the water fee goes over 0.20 tenge/m3 or 0.000515 euro (1 euro
= 388 tenge121). The water price for agricultural use is extremely low, and government
is willing to provide additional subsidies if it goes over 0.20 tenge/m3. Importantly,
water services are already virtually free, and governmental support to reduce the costs
even further provides even less incentive to use water resources responsibly. This
factor emphasizes a clear gap in efficiency of water management, and will be further
addressed in Chapter 4.
Chapter 18 Articles 96-101 also refer to irrigation and related technical facilities
condominium, which is when the land can be owned by private or legal person, while
the system of technical water facilities belong under common right of use (Article 96).
It also refers to rights of formation and termination of it, as well as participation rights
121 XE Currency Converter 2017.
36
and responsibilities. This is to connect irrigated lands with agricultural technical
facilities, such as irrigation canals and facilities that the State has established.122 This
is also to specify rights and responsibilities of private landowners that use and
maintain these facilities. Therefore, the Water Code Section 4, Chapter 13 elaborates
on water rights; regarding irrigation Article 66 on special water use states that permits
are required in order to access and use water and relating water facilitates. Special
procedures are established to receive permits. Article 71 and 72 establish right and
responsibilities of water users. The Law on Governmental regulation of agro-
industrial complex and agricultural lands development No. 66-III also states
responsibilities and rights of different levels of government authorities, and regulation
of development and maintenance of current systems in place. With regards to
irrigation the law goes in more detail on aspects of irrigation system monitoring and
maintenance by authorities. The government has recognized the importance of the
water sector, and has launched several programs to address limitation in the law.
Moreover, Ministerial programs on irrigation improvement have also been launched,
but little information is available on those at all, and no positive results have been
reflected so far. 123 Moreover, MOA and CWR are not transparent enough and
information is not communicated well between local authorities, such as akimats.
Also, very little information about the work and decisions made is available to the
public; hence it is difficult to assess how governance of irrigation practices and water
management is done.
3.2.4 Land Code
The primary relation of the Land Code to irrigation has to do with land plot ownership
of irrigated areas. The Land Code outlines the rights of landowners in relation to
irrigation practices. Article 64 states that land owners and users have the right to
conduct irrigation works according to the established demands in consideration of
sanitary, environmental and other standards. Guaranteed sustainable access to water
rights are extremely important for irrigation practices124, and the Land Code states
that territories used in agriculture must have a working irrigation system, connected
with water supply (Article 97). Irrigated land and water facilities for irrigation must
122 Petrakov – Kenshimov 2012 Part 2, p. 69. 123 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7. 124 CA-Water Info: Database. Ziganshina, p. 7
37
be assessed in close connection to each other. Article 97 of the Land Code specifically
states that the off-flow of water provision must not be lower than 75 percent within
existing system efficiency. This means that in the case where the state-owned water
facilities are leased, sold or donated has to be done within the norms of the Land Code
Article 98, paragraph 4, which requires that it has to be based on preliminary planning
and available information from soil examinations, survey etc.
Moreover, Article 99 of the Land Code outlines the use and maintenance of irrigated
areas with access to facilities, which emphasises the role of the authorities to decide
on the extent of use and maintenance of irrigated lands. The Land Code regulates the
rights of use to the irrigated land, and the state may grant and transfer areas of
irrigated lands to private persons (Article 97). Monitoring on the state of irrigated
lands is also established in Article 99, where if lands are transferred to private persons
and legal person, they must comply with existing plans to maintain all of the irrigation
system and facilities. This is an important feature, as it emphasises that the land
owners must comply with the state plan of irrigated lands and maintain the irrigated
facilities themselves. It has been established that the state of these facilities and
irrigated lands has been in low conditions, which is the result of poor practices and
technologies in place.125 Therefore, it is evident that the State must upgrade its plans
and invest into updating local irrigation systems and facilities, because private owners
do not have their own authority or own capacity to improve their practices. The
centralised nature of this again highlights the problem of governance, where the state
has overlooked some aspects of management of irrigated lands, which led to
inefficiency of use.
The Water Code is the primary legislation that governs irrigation practices, users
rights, and establishes a governance mechanism over water management. The Water
Code also governs water facilities, but the irrigation lands and their quality are stated
in the Land Code. The two laws are complimentary to each other in terms of irrigation
law, as they establish certain synergies and coherence between each other. Both codes
are a basis for additional laws on irrigation passed.
125 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.
38
3.3 Discussion
The water basin approach highlights the strengths of the Water Code, and demonstrate
potential for adaptive capacity of the legislation. But this concept has not been fully
integrated into the law and governance of water in irrigation. There is a lack of full
enforcement features of these concepts, and little evidence is available on the
efficiency of these measures. For example, water use plans and basin agreements
developed by the basin organizations contain little involvement of users and NGOs,
and their issues or information is not reflected in government activities. These yearly
plans and basin agreements lack crosscutting issues not only in irrigation, but also
within whole water sector in Kazakhstan.126
The governance structure and management system of the laws described support the
centralized nature of the water law in Kazakhstan. Considering limited budget and
capacity in place based on current issues highlighted in Chapter 1.1, such centralized
systemic structure is inefficient without proper investment and time attributed to the
development of operations the water management in agriculture. These budget
constraints undermine implementation of these water management plans127, and little
information is available on the progress of these plans and basin meetings. MOA
Decree № 19-5/519 does state the responsibility of the CWR to share information
with the public and make it easily available upon request, yet little information is
available at all.
The current water use fees are very cheap and government is heavily subsidizing them
as well, providing little incentive for the user to protect, save or maintain water
quantity. The collected water fees then are used to maintain water facilities in the
country128, which are now in very poor condition. Moreover, there has been little
maintenance of the drainage network since 1990, and some parts of the agricultural
drainage are outdated and need upgrading, FAO estimates 90% of the vertical
drainage systems are not used as a result of high costs.129 These issues in structure,
technology and maintenance of irrigated systems are very important to ensure no
water leakages and better water quality available.
126 Al-Fati 2008, p. 153 127 Al-Fati 2008, P. 153 128 FAO 2012, p. 65 129 Ibid. p. 70
39
Suitable laws should be present to ensure public incentives to save and protect
available water used for agriculture, by changing fixed water price system and
introducing different subsidy scheme. The law should also allow for more
communication between responsible authorities and more information available to the
public. Water users representatives should have a more active part in decision-making
and planning in the water sector by participating strongly in the basin organizations,
not just in Basin Councils. Most of these issues are somewhat addressed in the law,
users rights and responsibilities are stated at length, yet there is little enforcement in
place due to lack of clarity in the law. If CWR, basin organizations and local
authorities were more decentralized, the lack of clarity would encourage a diversity of
actions implemented based on the conditions and context of the water use and
irrigation practices. But the centralized system gives little room for interpretation for
the authorities who do not have the capacity to implement and enforce.
There are no explicit adaptation commitments in the regulatory system, as the country
has been heavily focusing on mitigation efforts, but some adaptive elements are
embedded in the legislation. In order to strengthen their impact, legislation needs to
explicitly highlight these adaptive efforts and processes, or already contain the
processes and methods in its legislation. But so far, in the context of climate change
measures, overall, Kazakhstan’s water legislation has not demonstrated in practice
active actions towards climate change adaptation or involved particularly strong
features for adaptation in the law in general due to heavily centralized nature of the
law lack of transparency. This is clearly evident with already challenging legal
processes in water management, and less so with the lack of national adaptation
strategy policy. Current institutional organization, measures and standards of the
water law demonstrate little evidence for the potential to withstand increasing
problems with climate change impacts. As has been stated in the governmentally
approved program on agricultural development, natural disasters in the form of
droughts and floods have damaged numerous agricultural facilities and have taken a
lot out of the budget provided to maintain current structures.130 There is a need for the
130 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7.
40
government to prepare adaptation mechanisms or improve those already in place in
the law to address impacts of climate change.
Nevertheless, the existing water law is rigid in terms of coordination issues and lack
of transparency, especially considering public participation and access to basic
information regarding compliance and monitoring reports. Moreover, the law does not
establish clear responsibilities for implementing agencies, offering duality of
responsibilities and no boundaries available. The result is lack of coherency in
management. Another potential issue is that the current legislation, particularly the
Water Code, does not take into account long term, mid-term and short-term changes
to the environment as a result of climate change, how is law maladaptive and
importance of international rivers. There is no mention of these possibilities in the
Code, and the government only recently started to develop governmental programs on
sectoral development (to be discussed in Chapter 4). This undermines effective water
management in an already stressed environment and poses questions how the law can
manage in the future. However, Kazakhstan’s water law has the potential to improve
its adaptivity and effectiveness by further developing water basin approach in its
legislation. This means we can build upon these foundations towards a more adaptive
and resilient water law.
As was indicated in Chapter 1, adaptive law is needed where long-term stability in
decisions is paramount, where implemented decisions cannot be easily changed, and
where the agency’s final authority towards a decision is essential.131 In the case of
irrigation law in Kazakhstan, the only feature that does not welcome adaptive law is
the centralized nature of the regulation of water resources. Otherwise, there is a
potential to build more capacity to enable changes in the legislation regarding
decisions, relying on the importance of overall importance of long-term stability in
the substantive goals of the Water Code. Adaptive law can benefit Kazakhstan’s
irrigation law and support its resilience in the face of increased droughts, floods and
landslides, as well as overall changes temperature. It can offer a flexible and iterative
decision-making based on scientific knowledge available empowering stakeholders
and enabling efficient and smart regulation design in place. The challenge for this
131 Craig – Ruhl 2014, p. 13.
41
remains in the face overall cost to implement this in practice. More will be discussed
in Chapter 4. As a result, we need to evaluate Kazakhstan’s adaptive capacity of the
water law in the forthcoming environmental changes in an already challenged water
management regulation and sensitive regional water situation. The following chapter
will outline a proposed adaptive law theory and a criteria of assessment of the above
mentioned regulation.
42
4 ANALYSIS OF LEGAL ADAPTIVITY
4.1 Assessment against established adaptivity criteria
4.1.1 Goals
The goals of an adaptive regulation are holistic and reflective of complimentary legal
instruments, providing exemptions if too broad; refer to duty to provide reasons for
changes using scientific knowledge for justification; and offer co-benefits for
involved stakeholders and interlink with benefits for the environment, society and
law.
On holistic and reflective goals, the Water Code establishes a broad approach towards
facilitation of resilience by outlining substantive goals as “achieving and maintaining
environmentally safe and economically optimal level of water use” in Article 3.
Overall, these substantive goals remain coherent throughout the legislation.
Exemptions are only referred to in the context of ownership of land near water and
water facilities that are of strategic significance to the government, which are not
available for private ownership (Article 25). No other exemptions are cited
establishing a broad nature of the Water Code. To compliment this broad focus of the
goals, the Water Code is supported by a set of specialized laws that cover more
focused matters of regulation. Specifically, on water use and irrigation practices the
Law on Governmental regulation of agro-industrial complex and agricultural lands
development No. 66-III, Presidential Decree No. 420 on agricultural development,
MOA’s Ministerial Decree on the rules of common water use No. 19-1/252, MOA’s
Ministerial Decree on Establishing standards for governmental services regarding
subsidy provision to water use for agricultural industries No. 6-4/1072, and
Ministerial Decree on the Rules of subsidizing services for water provision for
agricultural needs No. 6-3/597 and others. Importantly, these related legal instruments
build on existing information in the Water Code (and Land Code), and offer further
elaboration inclusive of exemptions to the codes. For example Articles 36, 37, 38, 54
and others explicitly state that certain notions are exempt and are referred to a
different legal instrument. All of these demonstrate that special laws act almost as
exemptions if they contradict the Water Code. The Land Code itself demonstrates
how coherent the irrigation legislation is, as it offers further elaboration on irrigation
43
management from the perspective of land ownership (Articles 64, 97-99). This
demonstrates a level of substantive coherency in complimentary legislation. The goals
overall compliment each other and offer an understanding of the legislation’s role in
managing water use, which is continuously referred back and forth between other
related laws.
On justifications for changes in the law, the Water Code emphasizes that standards
and limitations of water use must be based on scientific knowledge available, but it
does not require duty to provide reasons for changes in the law to be based on
available scientific knowledge. For instance, Article 36 paragraph 6 explicitly states
that limitations of water use should be based on scientific standards, and Article 46
states “schemes for the integrated use and protection of water resources shall be
developed by the authorized body together with the scientific and specialized project
organizations with participation of the concerned government agencies”. The role of
national sources of scientific information and research is to inform the state on the
ongoing changes in the water standards and use (Article 46). Nevertheless, there is no
explicit article requesting duty to provide reasons to the changes in the law, instead it
states that scientific information provided by relevant scientific research authorities is
available to inform the state on any changes. As a result, substantively there is not
enough information offered on the duty to provide reasons for the changes in the law.
This shortage of available information for the public demonstrates a lack of
transparency, indicating a lack of adaptive capacity in this regard.
Co-benefits are continuously emphasized in the goals of the Water Code. This is
demonstrated by the need for sustainability, and emphasis on both environment and
society throughout the legislation. For instance, the emphasis on the water basin level
approach offers an element of adaptive capacity for stakeholders to receive co-
benefits, as well as to emphasize the need for a more resilient system updated by
existing scientific knowledge (Articles 40-43). Substantively, the law highlights the
need to maintain these benefits with the established procedures (Chapter 7). This
demonstrates an element of resilience in the substantive goals, and attention to
adaptive capacity in the Water Code.
Overall the adaptive capacity is somewhat present in the gals of the legislation, but it
44
is not backed up with enough features in order for it to be effective on a substantive
level. There is potential for adaptive capacity, but further elements of adaptivity, such
as clear information available to what justifies changes in the law and more
elaboration on the extent of scientific knowledge involved in these changes.
4.1.2 Structure
The structure of the law needs to reflect polycentric elements, and utilize multimodal
and multi-scalar responses. In practice, this is demonstrated by multiple sources of
authority; multiple integrative ways in addressing goals using multi-sourced data and
information; multiple scales addressed, such as geographical, environmental, social or
legal; complimentary policy level and economic instruments; and the law governing
hydrological boundaries (ex. river basins) and not administrative boundaries.
On sources of authority, as was found earlier, the Water Code is strictly centralized.
In terms of structure of the legislation, several sources of authority are present for
decision-making in the Basin Councils, but this is only enabled through advisory
purposes to CWR and local authorities (Article 48). These councils need to be further
empowered in order for this to be considered as an adaptive feature of the law; with
the established advisory role, the decision-making power remains with the CWR and
local authorities, and it is evident that the representation of stakeholders is not as
diversified as necessary. 132 Non-governmental entities have some level of
participation in decision-making in managing water use through a yearly set of
recommendations given to CWR for information. It is clear that there is an attempt to
include water users but there is no clear statement about water users association and
representatives that engage in discussions in Basin Councils. While, coordination is
done in the context of water basin approach, which in essence puts significance to
different stakeholders, although does not fully empower them in decision-making.
Basin council meetings occur every year, which result in a yearly recommendation
paper sent to the authorities. No information is available on the kind of
recommendations given, the kind of user representation is presented in these
recommendations, or how CWR or local authorities have used these recommendations
in their work. CWR Ministerial Decree No 19-5/519 states the role of CWR to
132 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7; Al-Fati 2008, p. 157
45
establish environmental standards and limits of use for the users, but no information
on how these decisions are made. It can only be assumed that these are partly based
on the Basin Council recommendations and information offered by scientific
establishment. This significant lack of transparency is a set back to the progress of the
irrigation legislation towards adaptivity and resilience.
On multiple integrative ways in addressing goals using multi-sourced data and
information, and multiple scales addressed, such as geographical, environmental,
social or legal the Water Code identifies varied methods in addressing policy goals,
for instance in implementing sustainability targets the Water Code refers to other
legislation across sectors that address the same sustainability targets for their sector
that compliments and offers a different method in the water sector (Article 3, Article
34, Article 40, Article 72). Nevertheless, methods within implementation of the Water
Code substantive goals are not explicitly diversified. The general attribute of the
Water Code allows for related other laws to pick up on a notion and expand to further
elaborate on the methods used (such as MOA’s Ministerial Decree on the rules of
common water use No. 19-1/252). But this is not clearly stated in the law. On the
scales of responses, the Water Code establishes different levels of focus when
addressing water issues such as addressing water uses for cities, agriculture,
industries, leisure, transport, human health etc. Regarding all these different scales of
water use, the Water Code divides the purposes and assigns a type of water body
responsible and an appropriate authority to manage it. Ecosystems are not diversified
explicitly, but referred to as protected water body areas, special use water areas, and
common water areas that are available to the public. Overall, multiscalar responses
need to be further improved by offering further details on the extent of the responses.
Policy and economic level instruments are incorporated in into the Water and Land
codes. An example of a leading policy program implemented by MOA is Presidential
Decree on “Approval of governmental program on development of agro-industrial
complex of the Republic of Kazakhstan for 2017-2021” from 2017 No. 420. This
policy document outlines a short-term plan of the development of agricultural sector,
outlining different areas of work inclusive of water use management, which is revised
at the end of the program before a new program is put forward (section 3.7). This
policy document goes hand in hand with the Water Code and Land Code by outlining
46
current problems and setting standards for improvement in the next 5 years. The target
of the program is to inform the industry, legislation, science and people on how
agricultural services can be improved, drawing direct links with issues in the
legislation. An example of an economic instrument is Ministerial Decree on the Rules
of subsidizing services for water provision for agricultural needs No. 6-3/597, which
outlines irrigation water costs for water users. Importantly, water services are already
virtually free, and governmental support to reduce the costs even further provides
even less incentive to use water resources responsibly. This demonstrates that this
economic instrument is not well aligned with the target of the Water Code and
promotes irresponsible water use. As a result, this element is not in line the adaptive
theory because it does not offer versatile use of policy instruments and it is not in line
with climate change adaptation goals.
As mentioned earlier, the Water Code strictly follows the water basin approach
(Chapter 7), which confirms its commitment to hydrological boundaries and not
strictly administrative boundaries. This is an adaptive feature of the Water Code, as it
ensures sectorial and environmental boundaries, taking into account a systemic
approach to governance of water resources. In irrigation practices, water basin
approach helps define the amount of water permitted to use for irrigation from a
selected water body. The Water Code outlines general responsibilities of basin
management organizations that are part of CWR in Articles 40 and 43, which include
monitoring and organizational practices. Article 40 also states that these CWR
organizations establish the government’s control over water resources management,
which include permit issues and establishment of limits. Importantly, paragraphs 17
and 18 states that these organizations are responsible for reporting on abuse of the
water legislation to the law enforcement, as well as filing claims for any damage to
state owned water properties. Overall in terms of water basin approach, the Water
Code highlights the process of basin management approach, emphasizing the need to
consider hydrological systems. This is also demonstrated by the management
operations conducted by CWR’s basin organizations, and as a result, this is an
important adaptive feature.
Overall, the structure of the Water Code is somewhat coordinated and contains the
right scales of water management in the form of water basin management. But it
47
remains strictly centralized, which is a maladaptive feature, restricting innovative
responses. Moreover, supporting legislation and economic policy instruments are not
all coherent or complimentary to the Water Code, particularly economic instruments
that go against its principles and goals. The structure would need to evolve in order to
efficiently manage changes in the water management, such as the impacts of climate
change.
4.1.3 Methods
The methods of the law need to demonstrate adaptive capacity to changing conditions,
standards of water use reflective of contexts, tolerance of uncertainty and flexible
discretionary decision-making. This is demonstrated by long term planning
instruments and an enabled learning environment, and available variety of standards,
a permit system and consultation processes.
There is consideration for environmental and social context and the long-term impact
through planning instruments. The Water Code states that water objects are provided
to entities through special, joint and solitary use for short-term use (5 years) and long-
term use (5-45 years). Article 61 allows for planning in longer terms to achieved
optimal use of water resources, reinstates available information for water users.
Moreover, Article 61 highlights that water authorities may develop a national water
resources database. For this, water users need to deliver needed information to keep
the database updated (Article 62). Apart from these articles, the Water Code does not
elaborate any further on long-term planning instruments. This database of information
for national analytical system is not available to the public, and no information is out
regarding how updated it is and how government goes about using this database for its
long-term programs. Governmental program on Agri-industrial development for
2017-2021 approved by the Presidential Decree No. 420 offers a 5-years program for
the development of water management in agriculture as well. This is supported by
indicators, standards and current available information sourced from MOA and local
authorities dealing with water management. Such program is an example of long term
planning instruments in policy that are enabled by the Water Code. Overall, these
long-term planning instruments are allowed but not encouraged or reinforced
48
anywhere else in the Water Code. Therefore, long-term impact does not have as
strong of an influence in the legislation.
Entitlements enable water resource sharing between users according to established
guidelines and rules. In the Water Code Articles 17-20 state different water objects
and rules on their use. For example, for water objects for joint use downstream
owners have the priority for their interests, while still taking into account interests of
upstream users. Water objects of special state significance are those that influence
environment and economy, and they require special attention in the regulation. In
terms of rights to use Article 22 states short and long term rights provisions.
Moreover, with regards to water used for irrigation, water facilities are key in
maintaining good irrigation practices and avoiding leakage. The Water Code outlines
various rights to use related to water facilities related to irrigation, particularly to do
with maintenance (Chapter 4, Articles 24-32). Moreover, for irrigation purposes, users
need to submit an application to local authorities on the amount of water they require
for irrigation yearly, for which they receive permits (Article 95, paragraph 2). In this
regard, different entitlements are provided, split between different uses of water
bodies, for example in agriculture, and different uses of water facilities in irrigation.
Permits systems for water use in irrigation is also in place, which is submitted to local
authorities133 and reviewed against yearly water use plans established by CWR based
on MOA’s Decree No. 19-5/519 Article 14, paragraph 18. These systems are in place,
which confirms this procedural element of adaptivity.
Quantitative standards put in place for irrigation and water use are outlined in the
Land Code Article 97, where it states that the off-flow of water provision to the
irrigation systems must not be lower than 75% within the limits of existing system,
while within preliminary studies and planning establishment, as well as continuous
examinations and maintenance. In other words, areas used of irrigation must have
75% of water flow available, but would still need to be within established limits and
reviews. This is an adaptive feature that quantifies how much water can be used for
irrigation from the source, while noting the importance of planning, review and
monitoring of water and soil conditions, as well as the state of water facilities. There
133 Al-Fati 2008, p. 153.
49
are no further guidelines on this, and no available information on how this is being
managed.
Consultation processes in place refer to the discussion on the Basin Councils, which
offer advisory and consultative role to the water basin organizations established and
maintained by CWR. It is evident that the consultations platform is available, but no
information is given to what extent it offers a dialogue to stakeholders and whether
they are empowered in the decision-making. This once again demonstrates
maladaptive features of the Water Code.
4.1.4. Processes
The processes need to reflect an iterative process with feedback loops, accountability
mechanism, procedural flexibility and safeguards, and enforcement and compliance
mechanisms. This is demonstrated by review periods, overall monitoring of multiple
indicators, disclosure and contribution to decision-making for all actors, access to
courts, coordination, enforcement procedures and implementation paths, non-
compliance processes and binding obligations.
Accountability mechanism in place in the Water and Land codes refer to related laws
on, for example, monitoring soil quality, water facility uses and maintenance, water
quantity in rivers and other bodies. These elaborate specifically on how monitoring
should occur and what environmental conditions and facilities should be in place.
Moreover, the Water Code establishes CWR and local authorities responsible for
conducting state monitoring of water bodies (Article 60). The state is responsible for
all monitoring and processing of information based on various scientific indicators of
water bodies and their condition. Monitoring occurs together with relevant authorities
to provide more insight on the substance of the legislation, such as together with
water authorities for mineral resources use and study, and while considering
information on use of water resources provided by water users and scientific bodies
(Articles 58 and 59). The state also is responsible for submitting timely
recommendation for prevention of harmful effects. No details are provided on the
methodologies used or how often these recommendations are submitted and how they
are taken into account. As stated earlier, the Land Code encourages review and
50
monitoring of the water used for irrigation in Article 97, but no further elaboration is
provided. No particular monitoring standards are established and only yearly
timeframes are mentioned for this to occur, lead by CWR (CWR based on MOA’s
Decree No. 19-5/519 Article 14).
On disclosure and participation in decision-making for all actors, it is not clear that
they are able to publicly access the information on Basin Council meetings. It can be
assumed that when these meetings are planned, relevant stakeholders are identified by
the water basin organizations and invited to participate. Nevertheless, the fact that no
information is available on how these stakeholders are involved in decision-making,
despite a set system in place, emphasizes a point where the legislation can be
improved. In terms of information availability, the Water Code states that authorized
bodies may create information system for water resource users, for which water users
provide necessary information (Article 61). In practice this information system is not
available anywhere, although government authorities are required to provide
information when requested (Article 9). As indicated earlier, information on water use
is hard to come by; all of the information is collected by the state from CWR and
local authorities yet no information is available on the ministry website of any other
database. In most cases, a user must request official access using a special application
form and even then the request must comply with governmental interests in order for
it to receive approval.134 This points towards maladptivity of the law due to lack of
binding requirements for availability of information to water users.
Regarding water disputes and public access to justice, Article 137 of the Water Code
states that these disputes resulting from between water users relating to water bodies
and facilities. These are to be resolved using negotiations or in courts. As a result, the
water users are encourages to first attempt use of negotiation options with the support
of government authorities, but judicial intervention is a viable option as well. Having
access to justice available to water users is encouraging, yet in the case where water
users are damaging state owned water bodies and facilities, water basin organizations
submit materials on abuse of the legislation to the law enforcement agencies and the
courts for compliance and claims for damages. Therefore, water basin organizations
134 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017b.
51
are empowered to provide legal information of non-compliance. Water users are
entitled to access justice and courts, while water basin authorities in line with CWR
are charged with monitoring and filing of non-compliance to the legislation. This
process affirms a feature of an adaptive legislation in the Water Code.
Interestingly, MOA offers information based on inspections as a result of non-
compliance to the standards based on information provided by basin organisations and
local authorities, primarily referring to the amount of fines issued with no
specification on the kind of non-compliance detected.135 This information is limited,
but it is in direct compliance to CWR based on MOA’s Decree No. 19-5/519 Article
14, where CWR is responsible for provided information for water users.
Unfortunately, this is one of the few available to the public reports on water
management and use. Evidently, not all necessary provisions are stated in a binding
manner, which creates problems with compliance and enforcement. Most of the more
flexible provisions state general suggestions on how to manage water use in irrigation,
and this as a result gives discretion for both government authorities and water users on
how they use water resources.
Available enforcement and coordination procedures are often linked to other laws. For
example, Article 55 of the Water Code states required standards of maintenance and
condition for water facilities, including irrigation facilities based on the standards
outlined in Environmental Code, Land Code and others in reference to the
environmental standards and rules of protection (such as sanitary-epidemiological
standards, rational use of water resources) and considering environmental
consequences. Moreover, more specific provisions in the Water Code refer to non-
compliance procedures in the form of a ban and a fine in case of non-compliance for
special water use, which can be applied to irrigation practices as well (Article 75).
Overall, non-compliance procedures follow state administrative regulation by
initiating law enforcement bodies (Article 51). Overall, processes in place in the
irrigation laws are somewhat adaptive but lack considerable enforcement, and require
further development. Primary issues derive from not entirely clear processes that refer
to monitoring, disclosure of information and lack of binding requirements.
135 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017c.
52
4.2 Strengths and gaps
4.2.1 Identified strengths
Overall, regulation attributed to irrigation is adaptive in relevance to few aspects of
the law. The Water Code demonstrates substantive elements that are positive and
enable further opportunities for adaptvitiy using, for instance, water basin approach
and strengthening this concept by outlining major principles into action with, for
example, the existence of basin management organizations. Substantively, the law is
very general and broad, with few procedural and monitoring standards in place.
Another positive attribute is the availability and enabling of access to justice for water
users. The Water Code establishes water basin organizations as hubs for monitoring
and information storage and analysis, whereas water users are able report and engage
with the authorities in the case of non-compliance. The law encourages negotiations
first, but court systems are explicitly mentioned, and water users have this option.
Another positive adaptive element of irrigation law is its presence and significance in
the national short-term programs that are reviewed every 5 years, such as the
Presidential Decree on “Approval of governmental program on development of agro-
industrial complex of the Republic of Kazakhstan for 2017-2021” from 2017 No. 420,
which not only provides a substantive analysis of the current state of irrigation
practices and water uses, but also offers short term target and indicators for MOA to
follow and develop better management practices. These types of programs highlight
lessons learned from previous practices and encourage the responsible bodies with a
step-by-step process for improvement. Importantly, these are policy programs and are
not binding, so the level of incentive is significantly lower. Nevertheless, such
programs offer coherence and direction for authorities and water users.
In terms of compliance, enforcement is operating on basis of fines and permit
removals. Water users must apply for permits and licenses in order to use water for
irrigation purpose, be it private individuals or organizations, and the government can
even lease irrigation facilities to them. Yet with yearly inspections undertaken by
water basin organizations under the mandate of CWR, water use and irrigation
facilities are checked against established standards. These binding obligations for the
users to maintain water use and facility maintenance standards against yearly
53
requirements demonstrate a flexible system of water entitlements, where water use
rights can be also be transferred and requested. Moreover, each year water users must
apply for the permit to use water for irrigation with a specific quota, for which the
CWR will assess the extent of available for distribution water. These processes are
supported by the fact that CWR is meant to continuously monitor and update
available scientific information.
Another adaptive element found in the irrigation law is the substantive coherence
between primary laws on irrigation in the context of short-term and long-term goals.
This refers to the notions of sustainability, IWRM and basin environmental protection
and management standards across available legislation on irrigation. This sense of
coherence is partially spread to some policy instruments. Notably, the only exception
is the Ministerial Decree on the Rules of subsidizing services for water provision for
agricultural needs No. 6-3/597 outline basic subsidy rules. The Land Code is
complimentary to the Water Code in its irrigation provisions, and stands as the most
complimentary major legislation in Kazakhstan. It offers a perspective from soil and
land ownership, and consciously refers to the Water Code on water management
concerns.
The Water Code states the importance of scientific information to inform the
legislation. Although, nothing further is elaborated on that, the Article 59 states that
an water authorities have to provide information to individuals and legal entities when
requested. This suggests that the authorities are required to provide information when
requested, yet this is not publically available for scrutiny. In essence the fact that the
law allows information access through a certain request procedure is a positive
direction towards transparency in water management. The state is responsible for all
monitoring and processing of information based on various scientific indicators of
water bodies and their condition, as well as for submitting timely recommendation for
prevention of harmful effects (Article 60). This highlights a notion that a notion of an
iterative process is partially present, but no specific methodology or other details are
available.
Consultation processes are also lingering in the legislation, where relevant
stakeholders and actors are encouraged to participate in advisory platforms for water
54
basin organizations. These Basin Councils are established as a result of basin
agreement developed by CWR, which offer some platform for participation in
decision-making. There are adaptive elements and a lot of potential overall, yet some
limitations apply that poses significant barriers towards legislation’s adaptive
capacity.
4.2.2 Capacity and limitations
Irrigation laws in Kazakhstan maintain maladaptive features regardless of how much
adaptive potential it has. Importantly, transparency remains one of the bigger setbacks
in the criteria of adaptivity. Information on water use and management is not readily
available, and even if the law allows information analysis systems they are not public.
Information from the data bases that MOA and CWR use for analysis and monitoring
is very selected and limited. This demonstrates the lack of binding obligations
established by the law to allow its water users understand water use and management,
as well as any scientific data collected from yearly monitoring and inspections results.
One of the few ways to access this information is by submitting special forms, which
would first need to be clarified that the question in mind refers to the relevant water
user at hand.136 Despite the mandate of CWR to offer information to the public on
water statistics and, there is nothing available. Therefore, transparency is a
fundamental barrier for adaptivity in the law, as there is a disconnection between
water users and authorities, as well as between authorities in different water basins.
Another barrier to adaptivity in the face of climate change is the centralized nature of
the legislation. The state owns all water bodies and has the sole decision-making
responsibility on how to manage it. In the case of irrigation, the state decides how
much water is permittable for use in irrigation and where that water is sourced.
Moreover, the established Basin Councils play an advisory role that does not
guarantee that their views are represented in the decision-making. No information is
available on how this decision-making involves recommendations from participating
stakeholders, as none of these documents are made public. As a result, even between
involved stakeholders they could be uninformed on the extent of water use and
management that is applicable to them or the history and science behind it, which
136 The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan 2017b.
55
makes it that much harder to be able to participate with a stronger voice in a limited
platform available. The centralized nature of the laws puts a lot of responsibility on
the state to manage very complex matters, and as has been established by research, the
state does not have enough manpower or streamlined investment to guarantee
adaptive and smart decision-making in water management137. The law also maintains
that CWR and local authorities must operate under provided budget, and practical
examples demonstrate that budget is not high enough to maintain irrigation
systems138. As a result, the issue of implementation and compliance with the law also
remains to be a maladaptive feature as it is evident that there is not enough capacity
for the state to carry this scale of enforcement.
Regarding standards for water quantity available and the state of irrigation facilities,
the law regulates that these should be maintained up to established standard. The law
itself provisions this, but does not enforce it fully as at the moment most of irrigation
systems in Kazakhstan are not looked after. Water leakage is common, and irrigation
facilities are in bad conditions139. The law entrusts local authorizes to maintain these
facilities, or private users to do so, but in practice these are very expensive to
maintain. Importantly, there is a link with the subsidies for irrigation use, as profits
used for this are directed towards maintenance of irrigation facilities. Considering the
poor sate of these facilities, it makes sense that there is no capacity for the state to
manage that. Broadly speaking, enforcement and safeguards also remain as the
biggest barrier for adaptivity of irrigation laws. It is not enough that the law states
certain standards and principles. For the whole system to maintain resilience towards
climate change, the enforcement procedures need to be stated more clearly, while
compliance regulated more thoroughly.
Economic instruments put in place are evidently not coherent with the substantive
targets of the irrigation laws. At the moment, water users lack economic incentives to
preserve water because water used for irrigation is heavily subsidized and is
extremely cheap. The intention of the Water Code is to maintain water quantity as a
healthy level, and increase efficiency of water uses, but in practice this notion is not
137 Stucki - Sojamo 2012, p. 399–418. 138 Ministry of Agriculture of the Republic of Kazakhstan 2017, p. 13 139 Ibid.
56
enforced by complimentary economic policies. An adaptive system would require
supporting policies for it to operate efficiently, and in this case there is much to be
improved. Coherence between relevant laws on irrigation is only partially applicable.
Crucially, it is important to assess whether adaptive law can function in Kazakhstan,
particularly considering existing high corruption scores. 140 Kazakhstan’s current
corruption rank based on Transparency International is 131, which has decreased from
145 in 2008141, highlighting a slow improvement towards a more transparent system.
Nevertheless, rank 131 is a high corruption rank and this risk heavily sabotages
adaptivity potential of irrigation laws in Kazakhstan. The problems with adaptive law
require certain conditions in place for it to be effective and useful. As was highlighted
in earlier chapters, adaptive law requires a functioning transparent legal system to
have an effect and this can be a challenge. Without transparency in place, the law
cannot easily adapt to the changing environment as a result of climate change,
because it needs to enable free information flow between decision-makers, which
include key stakeholders and the public. This is to guarantee that the decisions are
assessed based on all information available and that these decisions are the best
possible based on the available information. Without transparency, certain actors are
not able to benefit from the decisions made, and certain issues are not brought to light
to inform the law.
Kazakhstan has slowly climbed down towards less corrupt ranking so far, and this is
partially a result of strong governmental intent to reduce corruption in the country.
The Law on Counteraction of Corruption No. 410-V from 2015 enforces anti-
corruption standards and limitations, outlines restrictive actions applicable for
government authorities, establishes anti-corruption agencies for monitoring, and states
a variety of compliance mechanisms that vary from fines, to property confiscation, to
prison sentences (Articles 7, 10, 19-24, 27). This is binding upon all and remains an
important topic of discussion in the government. Moreover, internal corruption
monitoring agencies, such as the Institute of Public Policy, have attempted to develop
and apply various methodologies based on national context to estimate the level of
140 Transparency International 2017. 141 Transparency International 2008.
57
corruption across sectors and over time in Kazakhstan.142 A different set of criteria for
assessing corruption levels is developed, which demonstrate the commitment for
reducing and studying corruption.143 All of this demonstrates a significant political
intent to address this issue. The corruption regulation has reflected itself in the slow
improvement of the country’s transparency ranking. This suggests a potential for
adaptive law to be effective in Kazakhstan’s water resources management regulation
if the state’s initiative continues to bear positive results. Nevertheless, the state
remains strictly centralized, which can counteract corruption counteraction efforts.
It’s important to consider whether adaptive law is actually necessary and useful. Craig
and Ruhl have identified where adaptive law is not needed, particularly where the
agency’s final authority towards a decision is essential.144 In the case of Kazakhstan,
this is the case, and it can be argued that adaptive law is not needed and will not work.
On the other hand, Craig and Ruhl have also identified that adaptive law is not needed
where long-term stability in decisions is paramount, and where implemented
decisions cannot be easily changed. This is not the case in Kazakhstan, as the Water
Code has emphasized the importance of substantive goals, rather than longevity of
decisions, and the importance of the available scientific information for the decisions
made. As a result, adaptive law has the potential to be developed in the legal context
of Kazakhstan over management of water resources in irrigation, but the centralized
nature of the law and extreme lack of transparency, leading to high corruption risks,
pose as important challenges for the law to improve and be able to adapt to climate
change impacts. In irrigation law, these aspects are extremely relevant, and highlight
the need for the state to work better.
142 Pelizzo – Baris – Janenova 2017, p 77. 143 Pelizzo – Baris – Janenova 2017, p 106. 144 Craig - Ruhl 2014, p. 13.
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5 CONCLUSIONS AND RECOMMENDATIONS
Kazakhstan’s irrigation law faces challenges with climate change impacts on available
water resources for agricultural use. Kazakhstan’s agricultural sector is emerging as
the policy focus for the country’s economic development, and the country needs to
foresee already existing impacts of climate change on irrigation practices. Available
water is already decreasing as a result of unsustainable and wasteful use, extreme
weather in events, such as droughts, and overall decrease of available water resources.
The theory of adaptive law can help irrigation laws in Kazakhstan to improve and
adjust to the changing environments using an iterative process towards decision-
making that allows for continuous adaptive changes in the legal design. The
developed adaptivity criteria of assessment focuses on four features of the law: goals,
structure, methods and processes. Substantively, Kazakhstan goals demonstrate
positive elements that enable adaptivity in the law, such as the embracing of the water
basin approach, IWRM and sustainability. These also highlight overall coherence in
terms of substantive goals with other legislative instruments, such as the Land Code.
Moreover, the presence of national 5-year strategic development programs that are
reviewed after 5 years demonstrate the intention of the state to review water
management practices, water conditions and standards in place, and adjust how they
can be improved. These policy documents one again highlight a general coherence
and intention of the laws to uphold the overall substantive goals of water resource
management in irrigation.
Moreover, the Water Code outlines some enforcement mechanisms for water users
such as permits and fines in irrigation, as well as mandates yearly inspections to
monitor the current state of water use and irrigation facilities by the water
management organizations under CWR. This is also supported by the recognition and
acknowledgment of the Water Code towards importance of scientific information to
inform the legislation. Finally, water resources management in irrigation is also
informed by the Basin Councils that offer advisory services to the basin management
organizations under CWR, which represent a variety of water users. As a result, there
is some form of an iterative process present in the irrigation law, which can foresee
major challenges in water availability and use, which should trigger the law to
respond.
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Nevertheless, the irrigation law in Kazakhstan faces significant challenges in its
design when it comes to major aspects of adaptive law. An important challenge is the
lack of transparency and available information to the public and between relevant
authorities. This is problematic for adaptive law, as it relies on transparency and
constant review and scrutiny processes by relevant actors in the water resource
management. The transparency informs the decisions of stakeholders, and enables a
learning process through available scientific information. Furthermore, a fundamental
challenge arising from the lack of transparency is the risk of corruption. Kazakhstan
remains one of the higher scoring countries in the world when it comes to corruption
levels, and this can significantly undermine the benefits of an adaptive law system in
place. This also questions the need for adaptive law in irrigation law in Kazakhstan
due to the heavy negative implications of corruption on the adaptive design of the
legal system. This can be improved by incorporating anti-corruption provisions more
closely to the Water Code, and strengthening governmental capacity to maintain an
adaptive system in place once it has been put forward.
Another challenge is the centralized nature of the Water Code, which puts a lot of
responsibility on managing water resources to the state and does not involve
stakeholders and other relevant actors in water use to be part of decision-making. The
Basin Council provide a platform for these stakeholders to participate, but linking
back to the lack of transparency, no information is available on who is participating,
how the recommendations from the Basin Councils have been incorporated in the
decision-making of CWR, and what decisions have been made. All of this highlights
that some crucial information from the water users is missing from the reports from
CWR, which could inform and improve water management in irrigation. Involving
more stakeholders could also help the state finance improvement of irrigations
systems, including irrigation facilities, as it has been found that they are in poor
condition and the state does not have enough manpower, capacity or budget to
improve them at this stage. This is also a problem of enforcement, as the state does
not have the capacity to enforce the provisions of the law to maintain irrigation
systems and carry out this scale of enforcement.
Moreover, coherence of the irrigation goals with economic instruments remains a
challenge. Overall, as has been stated earlier, substantive goals are more or less
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coherent with other relevant laws and policy instruments, but specifically the lack of
economic incentives to preserve and maintain sustainable water use is missing. This is
the result of heavily subsidized available water for irrigation, which needs further
improvement from the state’s side.
The major weakness of adaptive law is the requirement for it to have a specific system
in place for it to bear any benefit, and this can be done my improving the current
design. It has been established that Kazakhstan’s irrigation law is largely maladaptive,
but it still contains some potential for adaptivity in its regulatory design. These
involve, firstly, to improve enforcement measures of the current irrigation’s
legislative provisions, such as direct capacity improvement over current basin
management organizations of CWR to monitor and support irrigation systems and
water uses. This involves strengthening monitoring standards and conducting more
frequent reviews and evaluation of current water use in irrigation, as well as harsher
penalties and overall transparency for the public to understand consequences of
wasteful water use.
Secondly, to involve relevant stakeholders in the decision-making regarding irrigation
management by the water users during Basin Councils, as well as empowering Basin
Councils to not only provide advisory services, but also making sure that all relevant
stakeholders are considered and heard, and their decisions are more strongly
incorporated with the decision-making of CWR. This would result in more
collaborative governance of water resources, which would help address uncertainty
and interdependency of irrigation management. Water users could freely participate in
decision-making, and be able to reflect their experiences.
Thirdly, adjust economic instruments to reflect the Water Code’s goals and irrigation
targets in order to incentivize sustainable use of water in irrigation practices and avoid
wasteful water uses. This can be taken further by enabling economic instruments to
adjust to different regions of water use in agriculture in order to reflect the conditions
in place. Overall, this would only benefit current system by reducing water leakage
and incorporating other legal and policy instruments.
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Fourthly, improve current system of available information by binding the authorities
to release all relevant information on water use in irrigation using water management
organizations or CWR official website as a platform for transparency between
relevant authorities and water users. This would improve decision-making for relevant
stakeholders, and bring forward issues that have not been addressed before. The
enabled dialogue can serve as a safeguard for authorities’ decision-making, assuming
relevant stakeholders are more actively involved in overall management of water
resources in each water basin.
Finally, with regards to corruption risk there is a need to strengthen the link to
irrigation laws and develop a better regulatory design in the Water Code to respond
better to anti-corruption provisions, such as involving more monitoring, improving
access to justice system and complaint system. This is to enable a safe environment
for water users and authorities to practice adaptive water resources management.
Moreover, the state is already on its way towards addressing current issues of
corruption, and this needs to be further encouraged by enabling better corruption
counteraction methods and overall adjusting of the legal system towards it. Enforced
transparency in the management of water resources can assist in addressing this risk.
Overall, for adaptive law to be effective there needs to be a significant capacity in
place and willingness of the state and relevant authorities to maintain this system. At
the moment, the state does not streamline enough budget and overall attention
towards improving water resources management in agriculture. This is primarily done
by non-binding 5-year programs are yet to be effective. If adaptive law is indeed the
method to manage irrigation law in Kazakhstan, MOA, CWR, water basin
organizations and Basin Council need to be strengthened institutionally. They would
require not only continued support towards activities on monitoring, evaluation,
research and implementation, but also towards maintaining overall purpose and focus
on the fundamental elements of adaptive law. These can dramatically improve current
irrigation management, preparing the legal and institutional set up for increased
climate change impacts. Although, these fundamental changes in systematizing
irrigation law are difficult to both maintain and achieve, it can be possible if the state
using its centralized nature can put this in place.
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This analysis has presented basic maladaptive elements of the irrigation law, and has
offered general recommendations on how to improve. In practice, elements of
adaptive law can improve certain processes in managing irrigation law, but overall it
is unlikely that all of the assessed features of the law can be easily transformed. This
would require commitment and capacity from the state. It remains to be seen how
current legal system on water management in irrigation will develop with increasing
presence of climate change impacts.