Human
Rights and Poverty Reduction Realities, controversies
and strategies
Final
Meeting Report: Tuesday 22 March 2005
Rights to water: strengthening the claims of poor people to
improved access
Speakers:
Lyla Mehta,
Research Fellow, IDS and 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.
You'll
need Windows Media Player to listen to these clips.
You can download the correct version here
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 (see presentation)
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 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 (see
paper), 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 (see presentation)
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 a, b).
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
