Water rights for water governance

Opportunities and challenges of regulation in developing countries

Rights and entitlements at the societal level are some of the resources for water governance. Viewing water rights from a legal perspective helps to analyse the policy debate on rights of access to water. There are three principal legal forms of a right to water – a human right, a property right and a contractual right.

'Tap end' or 'river end' right?

Debates on water rights tend to focus on water services and the human right of access to water supply at the 'tap end'. However, research by the Overseas Development Institute in the UK on the liberalisation of markets in water services has highlighted that, in many developing countries, domestic regulation of water access is insufficiently developed or absent altogether.

As a result, attempts to 'fast-track' regulation are likely to go badly wrong. Without strong regulation, there is a danger of 'political capture': bias towards people who are wealthier, better educated and politically more powerful.

Policymakers should pay more attention to property rights for water resources at the 'river end'. It is at the water source that competition for water resources in bulk occurs. This is competition between water-using sectors (such as urban users, agriculture and industry) and between water users within each sector. For example, permissions to abstract water from surface and ground water sources are commonly formed as property rights (and may be granted for long periods).

The third legal form of rights is contractual: the right to water under contracts for supply of water services. These exist between a service provider (public or private) and a user, or household of users. The nature of contractual rights and obligations depends on each contract's terms in the specific country or municipal context, including how the rights are regulated.

Regulating 'river end' rights

Existing empirical studies show contrasting approaches to river-end property rights in water. In some instances, many international agencies promote formalised water rights to govern access to water resources. These are centrally administered systems of regulatory rules and procedures to decide between competing claims over water. There are calls from some researchers to register formalised water rights in the same way as land rights, and separated from them. This would promote investment and trading, attract more capital for funding water infrastructure, and encourage the reallocation of water to 'higher economic value' uses (such as irrigation).

However, other researchers favour settling competing claims over water access through negotiation. These processes are dynamic and gradual, often advancing through trial and error. Supporters of this approach caution against the abrupt introduction of formalisation systems into developing countries. These formalised rights are conceived in developed countries, but the capacity to administer and regulate them in developing countries is limited, with greater risk of political capture by powerful interest groups.

Tom Slaymaker and Peter Newborne
Overseas Development Institute, 111 Westminster Bridge Road, London, SE1 7JD, UK
p.newborne@odi.org.uk
t.slaymaker@odi.org.uk

Sources

Water and the GATS: Mapping the Trade-Development Interface, Briefing Paper, Overseas Development Institute, October 2005 (PDF)
www.odi.org.uk/wpp/publications_pdfs/BP_Water_GATS.pdf

Right to Water: Legal Forms, Political Channels, Briefing Paper, Overseas Development Institute, July 2004 (PDF)
www.odi.org.uk/wpp/publications_pdfs/BP_ODI_right_to_water.pdf

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