Speakers:

Lyla Mehta, Research Fellow - IDS

Bruce Lankford, Senior Lecturer, Natural Resources - University of East Anglia

Chair:

Peter Newborne, Research Associate, Water Policy Programme - ODI

1. The ninth and final meeting of the series was held on Tuesday 22 March 2005 at the Overseas Development Institute. The meeting was chaired by Peter Newborne. The two speakers were Lyla Mehta and Bruce Lankford.

2. Peter Newborne introduced the meeting by noting that the discussion of water rights would emphasise rights "in action": the cases to be presented by the speakers were practical examples of implementation of the human right and contractual/property rights to water.

3. Lyla Mehta began by warning that realising the right to water was full of challenges and contradictions. It was still unclear what a human right to water meant in terms of its implementation and, more generally, what economic, social and cultural rights meant for poor people who were often denied access to these rights. A significant challenge was the tension on the ground between a commitment to the market and a commitment to rights.

4. While the right to water was not explicitly mentioned in the Universal Declaration of Human Rights (1948), commentators agreed that since water was a key right and necessary for the realisation of many of the rights listed in the Declaration, it was implicitly included. In 1989, the right to water was explicitly included in the Convention on the Rights of the Child. The UN General Comment no. 15 (http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument) of November 2002 on the Right to Water declared that it was indeed a human right and that the duty of provision of sufficient, safe, affordable water to everyone, without discrimination, rested with the state. The right to water was nevertheless disputed in some quarters, for example by those who saw water as an economic good, rather than a human right.

5. Mehta introduced the case of South Africa, which stood out internationally in that it had endorsed the constitutional right to water. In 2001, South Africa introduced the "Free Basic Water" (FBW) policy which stipulated that each household was entitled to 6,000 litres of safe water per month free of charge, equivalent to 25 litres per day for everyone regardless of income or poverty levels. This policy was based on Section 27 of Constitution and the Water Services Act 108 (1997) and the cost was Rand 3 billion per year.

6. Despite the progress made in South Africa in realising the right to water, it was still a case of a national water regime "dancing to two tunes", that of rights on the one hand, and markets on the other. The IFIs and 'behind the border' policy convergences (e.g. cost recovery, user fees, state as regulator rather than provider, privatisation) had had a significant impact on South Africa's policies. This was most noticeable in the shift from the Reconstruction and Development Programme (RDP), which had clear commitments to welfare and entitlements, to the Growth, Reconstruction, Employment and Redistribution' (GEAR) macro policies. Since 1997, there had been a significant increase in the number of disconnections (from 250,000 to 10 million) and substantial increases in water tariffs. This had proved to be highly controversial, especially as the disconnections had particularly affected single mothers in poorer areas, and led to widespread protests in townships, as well as debates on the legality of them in the light of the FBW policy. Many commentators considered that the right to a basic level of water existed regardless of the ability to pay for it.

7. Mehta then focused on the implementation of the FBW policy in the Eastern Cape province of South Africa. In this region, implementation rested with the local authorities or specially designated water services providers who interpreted the policy according to the resources and capacities available. This province included areas, such as the former Transkei, where the policy had proved difficult to implement due to the legacy of apartheid combined with poor financial and institutional resources. In these cases, cost recovery was simply not realistic.

8. The positive impacts of the FBW policy included improvements in women's lives because more time was freed from the burden of water collection, plus health benefits for the whole community. Negative impacts included the lack of standardised response to the FBW policy and its implementation. About 50% of poor people in South Africa still did not enjoy FBW and many were not aware of their constitutional right to water. This raised the question of whether it was actually a 'right' if people were not aware of it. Finally, the 25 litres per day per person was only for domestic supply and was inadequate for livelihood security, cultural events and poverty reduction.

9. The key lessons and challenges which emerged from this case study were that despite currency in rights-based approaches, many marginalised people still lacked access to basic rights. In many cases, poor states often lacked the resources, capacity or will to prioritise the right to water. The case highlighted the central question of how to finance the human right to water where there was low cost recovery, low budgetary allocation and decentralisation. Despite a lack of information on rights, there was civic mobilisation around disconnections and people's right to water, particularly in urban areas.

10. Mehta concluded by recommending that, when promoting the right to water, it was important to look at several issues: the resource implications; institutional capacity and, crucially, political will.

11. Bruce Lankford described how, as part of an approach to Integrated Water Resource Management (IWRM), a system of rights to water resources had been designed in Tanzania. Lankford's particular case study was based in the Ruaha area in southern Tanzania, which accounted for 50-60% of all hydropower and for about 40% of rice production (see papers on integrating formal and informal water rights in river basin management and formal water rights in rural Tanzania).

12. In Ruaha, water was shared between a number of users and sectors. In-stream users included domestic use, livestock, fisherpeople. The water was also necessary for the ecosystems and livelihoods in Ihefu wetland in Usangu and ecosystems in the Ruaha National Park and, downstream, the water was used by the Kidatu dam for hydropower for urban and rural Tanzania. Under the current IWRM, both the inter- and intra-sectoral allocation was managed through formal water rights issued by the Basin Water Office. These 'rights' aimed to curtail upstream water abstraction so that it provided an over-flow for downstream users. However, abstraction was affected by number, design and capacity of water intakes, with adjustment influenced by informal and ad hoc negotiations.

14. There had been a significant change from traditional to modern intake design in both form and function. This change had important links to the shift in the World Bank's programme from informal to formal rights. These formal rights were expressed in flow rates for abstractors of water for productive uses. The rationale for introducing water rights was the enhancement of water fees, an incentive for water conservation and a source of funds for water regulation activities.

15. Lankford described ten 'faultlines' which he and his fellow researchers had observed in the design of the rights system - the shift to use a World Bank-supported formalised rights regime. These included the failure to recognise existing customary rights, to accommodate swings in water supply and to provide measuring structures. In addition, it bore no practical relation to discharge capacities of new intakes, to the demand of irrigation systems or the overall supply of the river system. Furthermore, the permissions to take water were unavailable to those which were not abstractors e.g. fisherpeople and cattle keepers. It was also very difficult to update the system in a constantly changing water availability context.

16. Lankford argued that the formal water rights system legitimised the increased abstraction of water from upstream intakes, which had the effect of reducing the amount of water for downstream users, which resulted in increased conflict. It became increasingly difficult to accommodate informal rights and customary agreements and the system was more expensive to administer than the income received. In short, it failed as a cost recovery, water management and registration tool. However, it was unlikely that the Government would throw out this complex paper system of water rights and so, in practice, the important issue was how to refine and adapt the system to make it workable.

17. A suggested framework for building on the existing World Bank-promoted system of water rights in Tanzania to accommodate formal and informal rights was then presented. This involved the three water flow phases of setting goals and managing water: 'bulk water', 'scarce water' and 'critical water' sharing. Using this framework, Lankford said it was possible to build on the formal water rights by engaging water users in ways which would support and develop water arrangements at the catchment level and match river basin allocation challenges, allocating water permits to the catchment rather than to individual intakes and re-tune the design of irrigation intakes so they could support allocation of water during bulk and scarce phases.

18. This new framework would combine formal water permits with informal water agreements to allow for better inter- and intra-sectoral water allocation and the reduction of conflict. It would also set seasonally-applied volumetric and proportional caps for managing irrigation abstractions and the sharing of water in river basins.

19. Lankford concluded by stating that it was important to distinguish between rights as guiding principles in water management, rights as village solutions for critical water, rights as a part of water management subsidiarity (customary rights as management in scarce phase) and rights as a formal tool for water management (formal permits for bulk water management). The process of distilling water rights into IWRM operational strategies was important but it was also important to be guided by rights principles while focusing on resource manageability and problems.

20. The discussion was wide-ranging. The role and regulation of multinationals (TNCs) in water management was highlighted. The speakers noted that most water was still in public hands but that, in 2000, the World Water Movement called for TNCs to be regulated. This issue had stalled and, in fact, many TNCs were trying to get out of water service contracts in many developing countries after difficult experiences.

21. The question of whether South Africa's FBW policy was the most effective way to deliver the right to water was posited, in particular whether a targeted policy, based on ability to pay, would be better than a universal one. The Government had considered targeting but thought it too complicated and expensive to administer.

22. As the case of Sudan illustrated, water could contribute to conflict in countries. Although there were usually a number of complex social reasons for conflict, technical solutions (boreholes, storage in bulk water season for national use, etc) were often required as part of the conflict-resolution process.

22. The Tanzanian framework was discussed and the importance of the design of intakes (the infrastructure) was noted. This was unrelated to paper water rights but made significant changes to the allocation of water. This was recognised as being a key issue after the local people were engaged in dialogue and they requested changes to the intakes. Also, the role of both formal and informal rights in the framework was challenged in terms of how it would work in practice, particularly the shift between using formal rights in scarce periods and informal rights in bulk periods.

23. Linking this final session in the series to the first session, the question of whether a rights or development discourse (i.e. MDGs) generated greater change was raised. While the MDGs had gained momentum, many local people were unaware of them, whereas a rights language had given teeth to local struggles over the right to water, in particular given the option of making a legal claim. Although many poor people would be unable to claim their rights in formal judicial procedures, the option reinforced social mobilisation. The meeting concluded by noting that many macroeconomic processes impinged on economic, social and cultural rights and it was still unclear how the human rights machinery could resolve this problem.

Zaza Curran
March 2005