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Integrated Water Resources Management: Legal Framework
JoyeetaUNESCO-IHE
Gupta
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Presentation Outline
Law, Governance and Institutions Water Governance: From Principles
to Concepts International water agreements National legal setting
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LawRights: Protection
Responsibilities: Enforcement
Pow
ers
Priv
ileg
es
Prin
ciple
s
Engineermanager
Policymakerhousewife
Studentpolitician
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Law in the domestic context
Separation of powers Influenced by custom, religion and
conquests Now increasingly by knowledge Domestic bargaining between
different interests International commitments
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Sources of International Law
Custom Convention Principle
Judicial Decision Codification Declarations Arbitral Awards Publications
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GeneralAssembly
ECOSOC SecurityCouncil
TrusteesshipCouncil
Secretariat InternationalCourt ofJusticeILO
FAOUNESCO
WHOWBIMF
ICAOUPUITU
WMOIMO
WIPOIFAD
UNIDOIAEAWTO
The United Nations System
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Modern International Law Process
Idea
ResearchPrinciple
Soft law
Harder
Treaty
TreatiesCustom
Hard law
Critique
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Institutions and Governance
Institutions: social practices through repetition become institutions;
Organisations: are bodies with funds, secretariat and staff;
Governance: social practices that regulate social behaviour
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Multi-level Governance: Relationships
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History of water managementLocal, Regional, National, Fluvial, Global
Ancient
1200 A.D.
1900
1990s
Future
Community
Basicmanagement of water quantity
Sectoralmanagement of water quantity and qualityinstitutional fragmentationspatial fragmentationlocal co-ordination
Integratedmultifunctional useriver basin as unitinstitutionalised cooperation
Multi-level Comprehensive Governance
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Conferences
Stockholm Conference 1972 Mar Del Plata 1977 UNCED 1992 WSSD 2002 Third World Water Forum 2003
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International law principles Sovereignty Absolute territorial
sovereignty Absolute integrity of
state territory Permanent sovereignty
over natural resources Limited territorial
sovereignty Community of
interests in water
Reciprocity Good neighborliness Cooperation Peaceful settlement of
disputes
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Environmental & Resource Use Principles Prevention Precaution Stand-still Best available
technology BATNEEC Polluter Pays
principle Cost-effectiveness
Minimum flow Prior appropriation Priority of use Maximum
sustainable yield
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Dublin principles elaborated
Finite– Holistic approach; has natural limits; is affected by
humans; upstream-downstream linkages,institutional approach
Participatory– Real participation, not just consultation, need for
achieving consensus, participation mechanisms, lowest appropriate level
Women– Involvement of women, women as water users, gender
awareness
Economic good– Value and charge are different; (GWP 2000)
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Gradations in involvement
Ignored
Controlled or manipulated
Informed
Self-management
Consulted
Dialogue
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The Rio Declaration 1992
1. Humans at centre
2. sovereignty& responsibility
3. sustainabledevelopment
4. integrationof environment
5. removepoverty
6. priority tovulnerable countries
7. common butdifferentiated responsibilities
8. consumption & demographic
patterns
9. capacity building and tech. transfer
10. subsi-diarity
11. effective environmental
legislation
12. open inter-national economic
system
13. liability and compensation
14. prevent relocation
15. precau-tionary
approach
16. polluter pays principle
17. E.I.A. 18. disasternotification
19. plannedmeasures
20. women21. youth22. indigenous
23. oppressedpeople
24. protect environmentduring wat
25. peace,development &
environment
26. disputeresolution
27. cooperationin good faith
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Sustainable development principles Common but differentiated responsibilities Poverty alleviation Sustainable use of resources Good governance Participation by all Precautionary principle Interrelationship and Integration (ILA
2002)
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Multi-Level Sustainable Development Governance Water as economic good & cultural
heritage; Sustainable development principles;
– including integration as elaborated further;– including participation & role of women;– including equity in water sharing;
Vertical linkages and subsidiarity; Capacity building and utilisation and
technology cooperation;
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Subsidiarity
Functional decentralisation; Establishment of river (sub)basin authorities Platform of stakeholders Participation in decision making / consultation Participation in management / monitoring Equitable representation of relevant stakeholders Development of adequate by-laws, working rules Introduction sub-basin level, if necessary Accurate formulation of functions (source: Jaspers
2002)
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Strategies and Tools
Integrated planning– Embody in national law
Demand management Supply management Decentralization
– devolution of powers,– subsidiarity – Increased participation
Commercialization– water pricing and cost
recovery– Polluter pays principle– Corporatization– Private sector
participation Water markets
– Water trading ?
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UN Law on The Non-Navigable Uses of International Watercourses 1997
ObjectiveArt. 1
DefinitionArt. 2
Right toParticipate
Art. 3, 4
EquityPrinciplesArt. 5,6
Duty not tocause harm
Art. 7
Duty to co-
OperateArt. 8, 9
No priority of useArt. 10
Planned measuresArt.11-19
International
Duty to protectArt.23
RegulationinstallationsArt. 24-26
EmergencySituationsArt. 27, 28
DisputeSettlement
Art. 33
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Law on the Non-Navigable Uses of International Watercourses Purpose: Protection, Preservation and
Management Art 3 & 4: defines when a watercourse
agreement can be entered into;– Does not affect previous agreements;– Should be harmonised;– Riparians may enter into agreement– Can be about a part of the water unless it affects other
riparians;– This protects the rights of those not parties to existing
agreements;– Every watercourse state is entitled to participate
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Equity and reasonable utilisation Equitably and reasonably, for optimal and
sustainable use consistent with protection; Equity:
– Geo, hydrographic, hydrological, climatic and ecological;– Social and economic needs– Population dependent on the water– Effects of the uses– Existing and potential uses– Conservation etc and costs– Alternatives– Weights
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Environment
Obligation to protect and preserve Obligation to reduce pollution through
harmonisation of policies, setting joint water quality objectives and criteria, techniques and practices, developing lists of substances;
Not introducing alien species Protection of marine environment
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Organisations
Joint Management Mechanism Regulation and costs Installations Action in case of emergency
situations Protection during armed conflict
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The Global Challenge
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The EU Water Framework Directive Preamble:
– water is not commercial but a heritage;– Policy must be based on scientific,
technical data, environmental conditions, economic and social development of the Community, benefits and costs of action;
– Specific solutions for diverse conditions– Protection of acquatic ecosystems;– Subsidiarity and sustainable use
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Preamble (contd.)
Eliminate priority hazardous substances and achieve conc. In the marine environment near background values.
Exception: infeasible or unreasonably expensive
Polluter pays principle, etc.
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Purpose: General (Art 1)
prevent further deterioration and enhance aquatic ecosystems;
sustainable use enhanced protection and improvement through
progressive reduction of discharges .. progressive reduction of pollution of ground
water mitigate effects of floods and droughts..
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The European Challenge
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Why are national water systems different?
Regional/ Fluvial Based on local customs Determined by changing bargaining power Historical circumstances and evolving
uses of the water body.
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Why are water principles so alike?Families: Islamic Hindu
Roman British
Communist
Codification
Knowledge development
Spread: Through conversion
Through conquest in Europe colonisation in the South
Through ideology development
Through legal techniques
Through bureaucratic and epistemic networking
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Legal and Institutional Pluralism Customs Laws of colonisers New imported ideas
– Case study of Tanzania and India DOES IT WORK?
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National Water Law
Constitution Tort law Property Law Agricultural Law Environmental Law Customary law in rural areas Etc.
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The National Challenge
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Institutional Challenge
Incorporating new concepts in a new legislation with: – Links with other sectors– Links with other administrative levels– Links with other regulations
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Zimbabwe
National Water Authority Bill - no IWRM
Zimbabwe Water Bill - Art 6a. Integrated water
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South Africa Water Bill The main object of the Bill is to provide for the management of the nation's water resources so as
to enable the achievement of sustainable use of water for the benefit of all water users. To that end it is necessary to provide for the protection of the quality of water resources and for the integrated management of water resources with delegation of powers to institutions at regional or catchment level so as to enable everyone to participate in the processes. The Bill accordingly seeks to provide for the protection, use, development, conservation, management and control of the nation's water resources, taking into account the need to ‑(a) meet the basic human needs of present and future generations; (b) promote equitable access to water; (c)redress the results of past racial and gender discrimination; (d) promote the efficient, sustainable and beneficial use of water in the public interest; (e)facilitate social and economic development; (f) provide for growing demands for water use; (g) protect aquatic and associated ecosystems and their biological diversity; (h) reduce and prevent pollution and degradation of water resources;
(i)meet international obligations; (j) promote dam safety; and (k) manage floods and droughts.
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PRESENTSITUATIONAND TRENDS
DESIRED IWRMSITUATION FUNCTIONS:
CONSTITUTIONALORGANISATIONALOPERATIONAL
POLITICALREQUIREMENTSSOCIETY AT LARGESTAKEHOLDERS
MONITORING & EVALUATIONPERFORMANCE INDICATORSEVALUATION CRITERIA
INTERVENTIONS
ANALYTICAL FRAMEWORK FORTRANSITION TO INTEGRATED WRMAND INSTITUTIONAL REFORM
IDEAL IWRMSITUATION
Source: Hofwegen and Jaspers
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Conclusion
Multi-level sustainable development/ integrated water resource governance systems are very complicated.
Tailor it to your needs. KISS (Keep it simple, stupid) to keep
it effective