In the face of growing water scarcity, most countries of the world are taking steps to use their water resources in a more sustainable way. The water crisis ranges from concerns of drinking water availability and/or quality, the degradation or contamination of freshwater resources, and the allocation of water resources to different users. To meet the challenge, many countries are undergoing systemic changes to the use of water resources and the provision of water services.
This project proposes to analyse the framework associated with the changing policy context for water use. The legal regime for the allocation of water covers a number of areas including water distribution to households, irrigation, industrial use and wastewater treatment. This is dealt with from a range of perspectives - human rights to agriculture development and trade - and from the local to the national and international levels. This project will provide a theoretical framework for understanding the place of water in law and in particular, the tension between the focus on water as an economic good and the focus on water as a human right. The project aims to contribute to a deeper understanding of the multi-faceted water related legal frameworks that govern water resources use at the local, national and international levels.
International Context
Crucial problems arise from the policy contradictions and conflicts that are being created by the ongoing negotiations at the international level regarding basic issues of water use and the access by all sections of civil society to adequate water services. While policy shifts towards privatization and commercialization of water services in developed economies are often based on national decisions and regulations, developing countries are increasingly subject to international commitments compelling the implementation of privatization measures. The IMF, the World Bank and the regional development banks have played a key role in the restructuring of public-owned services including privatization of the water sector in low-income countries a condition of loans and debt relief.
The re-orientation of the role of public and private entities in the water sector has also been reinforced as a result of the development of international trade law where the liberalization of trade in goods has been joined by negotiations towards the progressive liberalization of trade in services under the World Trade Organisation (WTO) and its General Agreement on Trade in services (GATS). The aim of GATS is to progressively liberalise trade in services, removing restrictions and internal government regulations considered barriers to trade in the area of service delivery, including education, health care, tourism, transport, waste collection and water. Despite calls by civil society at the WTO's Cancun Ministerial Conference for WTO members to clearly exclude basic services such as water from the scope of GATS, WTO members are engaged as part of the Doha mandate in negotiations to further liberalise trade in services. There is an urgent need to clarify the applicable GATS provisions so that they are interpreted consistently with existing human rights and environmental rules. Further, several attempts at exporting water beyond national boundaries has resulted in considerable debate over whether water is a "tradable good" under the General Agreement on Tariffs and Trade (GATT) or other regional agreements such as the North American Free Trade Agreement (NAFTA).
While international investment and trade law are increasingly enabling foreign entities to acquire rights to access water resources and services in other countries, other branches of international law are in the process of creating rights to secure equitable distribution of water, and set boundaries to the way in which water privatization measures are implemented at the national and local levels. The basic principles of international watercourse law are incorporated in the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses. On the regional level, the 1992 Convention of the Protection and Use of Transboundary Watercourses and International Lakes is intended to strengthen national measures for the protection and ecologically sound use of transboundary surface waters and ground waters. At the cross-roads between environmental and human concerns, the 1999 Protocol on Water and Health to the Convention establishes the first major international legal framework for the prevention, control and reduction of water-related diseases in Europe. A number of international declarations have linked the human rights discourse with developmental and environmental ones viz, Chapter 18 of Agenda 21, Rio de Janeiro; the plan of implementation adopted at the 2002 World Summit on Sustainable Development, the Bonn Recommendations for Action issued at the 2001 International Conference.
While human rights are neutral on privatization generally, since they do not prescribe who should provide essential services, they set important safeguards when privatization measures are decided and implemented by countries. The right to water as a basic human right has been derived from several other fundamental rights entrenched in international rights instruments, such as right to life, the right to an adequate standard of living, including sufficient food and shelter, and the right to physical and mental health. The right to water is seen as requiring governments to ensure that populations have safe, affordable and adequate access to drinkable water through policies and strategies that create economic, social and ecological conditions for such access, whether or not they are undertaken by private entities. In its General Comment No.15 on the right to water, the UN Committee on Economic, Social and Cultural Rights set forth several factors that must be present for the adequacy of water required for the right to water, including availability, quality, non-discriminatory accessibility, and information dissemination.
Indian Context
The water situation in India is difficult to summarise given the significant variations that exist from one end of the country to the other in terms of water supply and water availability. Since most agriculture remains rainfed, monsoons still play a crucial role in many basic respects, from the success or failure of crops to the replenishment of ground water sources used as drinking water and animal farming. Huge variations in surface water availability in different regions of the country have led to the proposal for a massive river interlinking project which would seek to link some of the major river basins to ensure a better distribution of water resources throughout the country. Excessive mining of groundwater has also necessitated a review of the policy relating to groundwater usage, and the need to regulate it.
The legal framework concerning water resource use is relatively intricate. Surface water has generally been seen as a common property resource or held in public trust, whose development has been largely undertaken by government agencies. Ground water on the other hand has been deemed to belong to the owner of the land and ground water is recognized as a chattel attached to the landed property. While surface and ground water has been managed separately in practical and legal terms, this assumption has been challenged in recent times, noteworthy of which is the Plachimada case. The sharing of waters is an issue impacting not only groundwater, but also the river water between states. The dispute concerning the sharing of the Narmada waters between Gujarat, Madhya Pradesh and Maharashtra, and the dispute between Karnataka and Tamil Nadu concerning the river Cauvery, illustrates the tensions that water allocation has generated for many years.
In recent years, there has been significant pressure for revisiting the legal arrangements providing the basis for water resource use. This is, for instance, reflected in the revision of National Water Policy in 2002. It clearly provides a significant role for the public sector in fostering more sustainable water use while at the same time calling for stronger private sector participation and further use of participatory approaches in water resource use.
India has been building experience with water restructuring projects over the past decade and is currently in the midst of implementing several water restructuring projects which will have significant impact on the realization of the right to water and all other aspects of water regulation for decades to come. Some of the states that have already restructured their water sector include Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu. A similar effort is also on in Madhya Pradesh, Rajasthan and Uttaranchal. It is therefore of the utmost importance to examine in more detail the interactions of the international and national dimensions of water reforms and to compare existing and proposed legal frameworks in different developing countries. Further, it is critical to study the water regulatory frameworks in a comparative perspective given the increasingly important role played by international institutions in setting up water regulatory frameworks as well as multinational companies in the provision of water services.
Objectives
The main objectives of the project can be summarised as follows:
- To critically analyse legal issues arising under international law, such as environment and human rights provisions, concerning the economic, environmental and social consequences of proposed water regulatory changes and their implementation at the national level.
- To study the broader impacts of water sector restructuring, including regulatory, environmental (water quality), and human rights aspects, as well as other related issues such as the links between water and agriculture.
- To examine the situation in India regarding the social, environmental and economic problems stemming from water restructuring.
- To develop practical and innovative suggestions to the problems identified with existing water restructuring projects, including enhancing participation and transparency in national and international decision-making processes.
- To formulate specific proposals applicable to the situation in India in the framework of water resources use.
Research Problem
The proposed study if the legal framework associated with the changing policy context for water use will be structured in two general parts.
The project will firstly focus on a critical examination of the issues arising under international law concerning water sector reforms and their implementation at the national level. The main research questions are:
- How do current international rules address the need for sound use of increasingly scarce water resources;
- What are the different demands established by different and competing branches of international law in terms of water sector reforms; and
- How do the varying international standards impact on water use decision-making at the national or local levels.
Building on the findings on the first part, the second part of the project will seek to provide practical and innovative solutions to address the social and environmental and economic problems stemming from water sector reforms at the national level, particularly in India.
Significance of the project
The project will contribute to a deeper understanding of the multifaceted water-related legal frameworks that govern water resource use at the local, national and international levels. The analysis of the complex issues related to water laws needs to be undertaken in specific contexts so as to understand the full conceptual and practical implications of the proposed changes. There is little work that has been carried out in India on the interactions between the national and international law on the impacts of international legal developments on law and policy at the national level. The focus of this project on the Indian situation will provide a way to examine in detail the interactions of international law with national law, questions of compliance with international law at the national level and the relevance of international law in national law and policy making. |
