6. Water Law and Conflict

Learning Objectives

• Identify different  types of laws that apply to water resources.
• Describe the legal pluralism interactions between the different types of laws.
• Analyze the role of power and inequality  in shaping these conflicts and the application of law to this resolution.

Key Concepts

Water conflicts, transboundary waters, international law

1. The relationship between rights and poverty

This short video outlines how property rights regimes can be connected to normative goals of reducing socio-economic poverty.

2. Different types of law

Just as there are many different water rights, there are numerous types of laws which frame these rights. Many scholars of legal pluralism focus on a clash of laws (often between state and customary) and their result. For example traditional emacequians in the United States South West or discussing the state and local courts. However, the issue is broader than this. These types of laws discussed here include state, international, religious, customary and local, and project or private.

State legal systems are the most commonly referred to and root their legitimacy in the political process (though not necessarily a democratic one). As between states there are certainly different definitions and emphasis given for specific rules (such as the economic value of agricultural water) or for broader normative concepts such as equality. For many scholars or policy makers who take a legal centralism focus, state law is the only type which is legitimate. International law can include regulations specific to water and those which may cover groups of people or types of transactions. These types of laws can emanate from soft approaches such as the declaration, binding resolutions, or from treaties and similar instruments. This soft approach can be seen in the well-discussed Dublin Principles, the Rio Summit, or the the United Nations Declarations on the Rights of Indigenous People.  However, these do not generally result in actual binding decisions. A strong approach with binding treaties can be seen in the 2014 treaty on transboundary watercourses. Although less engaged in this discussion, a number of religions have strong relationship to water resources, connected to water’s sacred nature (and thus deserving of protection) or being critical for human life. This can be a complicated, at times parsing the different types of water rights. For example, in the Hindu tradition, lower castes have use rights for drinking and essential needs, but higher castes have decisions making rights.

The second group of these types of laws represent more frequently marginalized interests, reflecting that they are more often co-opted because they are more adaptable. Customary law is often poorly defined by outside groups and is often misidentified or its existence is denied.  This type of law has been defined as “non-formal norms and behaviors that are accepted by the community” (Iza & Stein, 2009).  Many scholars have treated customary law with a colonial approach – considering it inadequate or poorly defined – and are dismissive of this type of law.  Local laws can be a complicated mix from many other parts of law; “state, project, religious, and customary” (Pradhan & Meinzen-Dick, 2003).  At this level, it can be difficult (if not impossible) to make clear distinctions between these sources of law. Similarly, it is at this level they are most felt by residents. Locals, on the other hand, do not have the same difficulties as outside observers in understanding local law. For them, a collection of disjointed, unwritten, or conflicting regulation is perfectly sensible in  a similar way that the civil code might be comprehensible to a western audience.

Legal pluralism scholars are aware of questions of complexity arising with these types of laws. For example, local / customary law is not to be confused with the myriad of regulations in local ordinances, such as urban zoning or regulations on wastewater. These, though at a local level, emanate from the state’s authority.  Similarly, indigenous and peasant systems of law can be more complicated than a state structure. First, they are based on a different type of rights allocations. As has been well noted, in contrast to state structured rights which in many places focus on the individual, indigenous or peasants water rights are often focused on groups and membership in collectives.  Therefore there is a great deal of variety as between persons. Second, the nature of these rights is not tied to one single object or law, but rather rest on a number of collective obligations and rights. Third, the systems of rights and responsibilities are not uniform across an area but vary depending on the town or irrigation system. This shifts the scale by which water governance questions can be raised. Fourth, these local systems make use of the close relationship between the scale in which they are managed and their users because they have more flexibility than a state system.

Next submodule: Resistance, Social Movements, & Community Building Around Water