Introduction

Water services in South Africa have started a hot debate. On one hand, the state is often regarded as being at the forefront in terms of water services provision particularly due to its explicit acknowledgement of the human right to water and its Free Basic Water (FBW) Policy. On the other hand, South Africa is a country suffering from extreme inequalities. Its GINI index is extremely high with 57.8. Also, access to water is extremely uneven, a legacy of the apartheid era. Historically ‘white’ suburbs account for more than 50 per cent of residential water use with ‘whites’ just comprising roughly 10 per cent of the population. A great number of people still lack access to water services, mostly marginalised and vulnerable groups of society. Many more suffer from high prices and the use of unsafe water. These inequalities in access to safe and affordable water have caused much resistance against water service commercialisation, privatisation and cost recovery on which the government mainly relies to expand services.

This chapter tries to achieve a balanced view from a human rights perspective recognising the country's achievements, but also taking a close look at the challenges in the implementation of the right to water. It analyses the implementation of the human right to water in South Africa in regard to the obligations borne by the state that correspond to the right to water under the common tripartite distinction between obligations to respect, protect and fulfill.

Introduction

The right to water has been recognised as a human right under various international human rights instruments. On the other hand, various international legal instruments to protect nature have led government institutions to reserve enough water for protected areas, for instance wetlands designated under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (the Ramsar Convention). These international legal obligations may conflict with each other, giving rise to legal problems not only within a country, but also between countries. The latter is the case when two or more countries use the same river as a source of drinking water and for ecological purposes (such as protection of a wetland). In theory, the principle of reasonable and equitable use and the concept of common river basin management, as laid down in the Convention on the Law of the Non-navigational Uses of International Watercourses 1997 (UN Water Convention), are considered to offer a way out of this potential conflict. However, the question is whether, in practice, these principles really are the solution to the conflict between the right to water and the duty to protect wetlands of international importance, and if so, under what conditions do they function adequately.

This chapter consists of a theoretical and an empirical part. The theoretical part (Section 2) will start with an analysis of the international legal instruments on the right to water and the obligation to protect wetlands.

The present chapter seeks to examine the state of the formal Water User Associations that has been created in India through a series of state legislations in recent years from an essentially rights-based perspective. Given the bias in the legal system that recognises statutory rights to the exclusion of almost any other form of rights, the passing of these laws presents an opportunity to these Associations to see what effective rights have come their way through these laws. This has provided the immediate provocation for this chapter. The discussion below is premised in a larger context where first some conceptual links between decentralised water governance and rights are explored in the Indian context. This is followed by a brief comment on how the rights are a function of law making and whether the water users and the farmer identifies and owns the rights created for them and vested in them. The chapter then proceeds to examine the formal rights available to the Water User Associations in different states today and more particularly in Andhra Pradesh and Chhatisgarh while focusing on both their ‘internal and external rights’. It also suggests whether and how far they are precipitating a ‘group rights regime’ while tracing its inevitable linkage to the critical question of water entitlements and the state of the irrigation systems.

Introduction

In India, the use of natural resources and their associated technologies and laws have their origin in a base of traditional jurisprudence. The governance of important natural resources such as village water resources was decentralised, having its legal basis almost entirely in custom. A custom is law not written but established by long usage and consent of our ancestors. In a legal sense, a custom means a long-established practice considered as an unwritten law. In another sense, a custom depicts a long practice or usage having the force of law. Customs mostly take the place of law and regulate the conduct of men in the most important concerns of life. At times, customs die away or are abolished or suspended by statutory law. Nevertheless, customs have been a source of law independent from known sources, namely religious or ethical doctrine, texts or royal decrees, as far as traditional Indian jurisprudence is concerned. We can observe that many of these customary practices are even now in vogue in land-holding patterns, traditional water technologies, forest use, agriculture and fisheries. The legal frameworks based on customs provide a wealth of information on sustainable resource use and management.

Food security plays a crucial role in addressing the needs of a growing population and it is inextricably linked to poverty alleviation. Water is a crucial input for enhancing crop production and providing food security.

The Asia-Pacific region lacks a continent-wide regional association and an overarching regional framework is yet to evolve in the region. Currently there are several dialogue forums and conclaves which, among other things, discuss the desirability of an integrated region. This is usually expressed in terms of an emerging Asian community. The phrase ‘evolving Asian regionalism’ therefore should be defined in line with the community-building effort that is underway in the region. The countries from East Asia, Southeast Asia and some from South Asia meet regularly and propose measures that will foster closer regional integration and lead towards an Asian regional community. External powers with a strong interest in regional affairs are also part of such conclaves. Some of these forums are anchored and driven by the Association of Southeast Asian Nations (ASEAN). Prominent among them are the ASEAN Regional Forum (ARF), ASEAN+3 (APT), Asia-Europe Meeting (ASEM), Shangri-La Dialogue, and East Asia Summit (EAS). They hold wide ranging discussions on strategic, economic, environmental and non-traditional cross border security issues such as human trafficking, terrorism and pandemics. The participating states are aware that such cross border threats can only be tackled through collective action which is propelling Asian countries to coordinate their activities more closely. Economic interdependence is a fairly evident phenomenon triggering the need for greater coordination of policies. It is believed that the 1997/1998 regional economic meltdown was a turning point that ‘underscored Asia's integration and shared interests and exposed the weaknesses in the global policy architecture.

Introduction

The globalisation of the world economy has set in motion economic processes that conventional units of the international political order and the territorial states find a challenge. This challenge, they assume can be met better by entering into regional agreements with neighbours. However, the extent to which regional cooperation can be realised in practice depends on a host of security and political considerations. Even in the most advanced regional frameworks of integration such as the European Union (EU), national interests and security concerns remain paramount, and EU members are often unable to reach consensus on foreign threats and challenges. This was demonstrated most dramatically at the time of the first and second Gulf wars. Even in less challenging situations, EU member states continue to behave nationalistically while for all practical purposes, EU citizens can now settle down and work in any of the member states. Their economic integration is almost irreversible. With regard to social development, the EU adopted a Social Charter (in 1961 and revised in 1996) which upholds welfare rights of citizens and immigrants. It requires the signatures as well as ratification of EU members for full implementation. A mechanism for complaints has also been set up with the EU Secretary receiving such complaints in the first instance. Being mostly rich, industrial countries, the EU members have been able to achieve social development through internal economic growth and reform, but poorer members such as Greece, the Irish Republic and now the central and eastern European countries receive handsome economic help from a common fund.

Expenditure Poverty

Since April 2007, SAARC has had eight members with Afghanistan joining in. In December 1985, the seven founder members were Bangladesh, Bhutan, India, Nepal, Maldives, Pakistan and Sri Lanka. Definitions of South Asia often vary, such as on inclusion of Iran and Myanmar, especially if a Greater Middle East region is conceived, or based on geographical (countries that are on the Indian plate) or historical (the British colonial legacy) ground. However, for all practical purposes, SAARC can be used as a synonym for South Asia.

Data made available through various surveys establishes SAARC to be a poor region. Table 3.1 shows summary of such surveys conducted in SAARC nations during different periods from 1995–96 to 1999–00. Those surveys, as prevalent in many countries of the world, are based on expenditure and not income, which is somewhat unreliable.

Table 3.1 indicates that:

• data are not available for countries like Afghanistan, Bhutan and Maldives,

• computation of head count ratios on poverty requires household surveys. As the table shows, surveys are often dated. These surveys suffer from the mismatch or under-reporting problem, in the sense that the aggregate of consumption expenditure obtained through household surveys falls short of the aggregate of consumption expenditure obtained through national accounts. Down the years, this gap has increased rather than being decreased. This raises a conceptual concern. How can one hope to correlate the trickle-down benefits of growth on poverty reduction if the growth is captured in the national accounts data, but not in the survey data?

• […]

Introduction

With a population of approximately 1.6 billion, South Asia represents nearly 24 per cent of the world's total population spread over less than 4 per cent of the world's surface. South Asia is dominated by India from a demographic point of view, which alone has a population approximating 1.17 billion, along with two other densely populated countries in the region – Pakistan and Bangladesh, with populations of 164 and 159 million respectively in 2007. South Asia also includes countries with small populations such as Bhutan, with only 658,000 inhabitants and the Maldives with just 306,000. The demographic challenges confronting South Asia are those of developing countries faced with a major population increase. When South Asia tries to meet ambitious poverty reduction goals, their growing industrial, commercial and transport sectors and urban and middle-income consumers use energy at an unprecedented rate.

South Asia's strong economic growth has led to increase in the consumption of energy and thus increase in the demand for energy. Yet the prevailing impressive economic growth rate is constrained by significant shortages in energy supply in the region. Recent studies on energy requirements in South Asia reveal that India, Pakistan, Bangladesh, Sri Lanka and Afghanistan have energy demand surpassing their domestic supply, while Bhutan and Nepal have energy resources, hydropower in particular, far in excess of their domestic needs that can be traded within the region. Moreover, Bangladesh, India and Pakistan have potential for significant electricity and gas trade within South Asia.

Introduction

SAARC has completed 23 years of its formal institutional existence. This is a long period in the history of any international organisation to show its results. SAARC can claim considerable success in conceptual evolution and laying down of theoretical ground work, where a number of creative ideas on identifying South Asia's challenges and ways to address them through cooperative regionalism have been formulated, articulated and endorsed. The above is true for fields of trade and investments, in relation to developmental goals like poverty alleviation and food security, and even fighting terrorism. The Group of the Eminent Persons' Report; SAARC Social Charter; two reports of the Plan of Action on Poverty Alleviation by the specially established Commissions for the purpose; the SAARC Regional Convention on Suppression of Terrorism (conceived and concluded initially much before the 9/11 events) etc. may be recalled here. SAARC has also succeeded in stirring up regional consciousness of cooperation and collective action on various economic and social fronts across the borders in South Asia. This has resulted from a number of professional SAARC groups, of lawyers and doctors, journalists and academics, businessmen and entrepreneurs, and politicians and parliamentarians, engaging and interacting with each other beyond national boundaries under the SAARC flag raised outside the official meetings. SAARC's record however is still very unimpressive when it comes to translating the creative ideas and energies so unleashed, into concrete policy decisions and implementing them. Despite this, there is progress on South Asian Free Trade Area/ Agreement (SAFTA) and growing trade among its members.

Introduction

SAARC was an initiative conceptualised by the then President of Bangladesh Ziaur Rahman who envisioned a trade bloc consisting of South Asian countries. The countries in South Asia had a long common historical heritage, and until the middle of the last century, movements of goods and people across the region was taken for granted. Trade flourished through these traditional movements, and the common ethnicity of the region, the congruence of consumption patterns and daily habits, provided a natural incentive to trade across different regions in South Asia.

The inter-regional commonalities in consumption behaviour as well as social practices continue even to date. Food habits in the southern districts of Tamil Nadu and Kerala resemble those in Sri Lanka very closely. Attire and clothing is very similar, and there are several social practices that are identical. West Bengal and Bangladesh share common cuisines and habits, and there is considerable similarity in the two Punjabs. It is therefore natural to expect that there should be free flow of goods and services across these regions. There is more in common between the two Punjabs than there is between Punjab and Kerala. Economic integration of the South Asian countries should have been a natural phenomenon, not an exception. Therefore the concept of regional trading block that would encompass the South Asian countries, most of which had been part of a unified administration until 1947, was recognition of the inherent historical advantages of regional trade and development.

The idea of planning a series of seminars on the South Asian Association for Regional Cooperation (SAARC) and putting together the seminar presentations in the form of a book was conceived by the Director of the Institute of South Asian Studies Professor Tan Tai Yong and the Senior Research Fellow Ambassador See Chak Mun. I am thankful to them for entrusting me with the responsibility to execute this project. The question that naturally arose was why study SAARC? Though it has produced formidable intellectual rationale and documented profuse rhetoric of political promises for development cooperation in South Asia region, has delivered very little even after more than twenty years of its existence. There is a two way answer to this question. One is that over the past more than a decade, the SAARC agenda has been somewhat hijacked by the economists who have explored the potential of what SAARC can achieve in the field of economic cooperation, particularly trade. In the process, other aspects of SAARC activities have been neglected. Therefore, there was need to look at SAARC in all its aspects, covering not only trade and economic dimension but also the security, political and cultural aspects of regional cooperation among the South Asian countries.

Secondly, over the past five years, small but significant changes have been taking place in South Asia having decisive impact on the process of regional cooperation.

Efforts to promote sub-regional economic cooperation within the SAARC are almost a decade old. These took shape in the 9th SAARC Summit at Male in 1997. The Summit endorsed the promotion of a South Asia Growth Quadrangle (SAGQ) within the SAARC framework. The SAGQ comprises the four South Asian countries of Bangladesh, Bhutan, India and Nepal (BBIN). The BBIN growth quadrangle was expected to create a facilitating environment for growth and development through identification and implementation of specific projects.

The SAGQ was conceived to be developed through the active institutional support and technical assistance of the Asian Development Bank (ADB). This led to the launching of the South Asia Sub-Regional Economic Cooperation (SASEC) Programme in September 2000. The SASEC emphasises on project-based development in the SAGQ. There are six priority sectors. These include – transport, energy and power, tourism, environment, trade, investment, and private sector cooperation, and information and communications technology.

Till now, SAGQ is the only sub-regional initiative exclusive to the SAARC framework. South Asia has experienced the growth of other sub-regional initiatives like the BIMSTEC. However, BIMSTEC is a ‘SAARC plus’ arrangement as it includes members from East Asia as well. In that sense, the SAGQ is conceptually identical to similar initiatives in Southeast Asia that include the Indonesia–Malaysia–Singapore Growth Triangle (IMS-GT) or the Brunei–Indonesia–Malaysia–Philippines (BIMP) sub-grouping.

An Indian Perspective

A large number of plurilateral organisations have been formed in the past half century, responding to political, economic and strategic needs of member countries. The limitations of the United Nations have also encouraged groups of countries to look for more limited platforms for mutual interaction. Some have a largely economic agenda, focused on trade, while others have a larger political agenda. Some are based on the principle of geographical contiguity, hence are ‘regional’ groups, others are based on a shared economic, political or security interest. Almost all such plurilateral associations invite Observers to attend some part of their Summit meetings. Typically, such Observers have some interest in the agenda of the group and so value this status.

The role of Observers would, therefore, vary from one group to another. Typically there would be three types of Observers:

• first, who wish to become members;

• second, with no interest in membership, but interested in keeping a tab on the proceedings; and,

• third, who may wish to be present at gatherings not to observe what members are doing, but to observe other Observers!

Myanmar was invited to be an Observer in ASEAN in 1996, prior to its eventual induction as a member in 1997. This is an example of ‘Observer status as a prelude to membership’. Several Observers at EU summits have subsequently become members.

Dimensions of Security

External security threat perceptions with politico-ideological and military undertones were among the factors influencing the creation of the Association of South East Asian Nations (ASEAN) in the 1960s. As the Singapore Minister of Defence, Teo Chee Hean commented on 3 June 2007 at the 7th International Institute of Strategic Studies (IISS), Asian Security Summit (the Shangri-La Dialogue) in Singapore, ‘the original ASEAN 6 (Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand) were all anti-Communist and sought close ties with the West’. However, only Philippines and Thailand (and Pakistan from South Asia) were among signatories to the South East Asia Collective Defence Treaty in 1954 leading to the establishment of the anti-Communist South East Asia Treaty Organisation (SEATO) which was dissolved by 1977. At the Bali Summit in October 2003, ASEAN Concord II was signed announcing the concept of ASEAN as a Security Community.

On the other hand, in the neighbouring region of South Asia, at its first Summit in 1985, the ‘fundamental goal’ of the SAARC, in accordance with its founding Charter, was declared to be ‘accelerating economic and social development’. Perestroika was gradually emerging in Moscow by then and rigid ideological confrontations were easing. All seven founder member states of SAARC were also members of the Non-Aligned Movement.

At the same time, for most of the South Asian states there certainly were security concerns, though not primarily of an external nature.

The articles in this book clearly acknowledge a strong and effective intellectual infrastructure prepared for SAARC. This framework spans across economic, strategic and security as well as social dimensions of regional cooperation in South Asia. The problem has largely been at the level of implementation. There are signs that political will is being slowly but steadily inducted into gearing the pace of streamlining SAARC as a viable instrument of regional peace, development and stability. SAFTA has been put on the move and there is a noticeable improvement in regional trade and overall atmosphere for mutually advantageous economic engagement. In the area of economic arrangement, efforts need to be made to initiate processes of financial integration and investment flows. Energy security appears to be both a promising and a challenging task. Politics has to be set aside in establishing energy linkages (be they in the form of oil and gas pipelines or electric power grid and transmission lines) and ensuring that region's abundant energy potential, particularly hydropower, is optimally harnessed and judicially accessed.

SAARC also deserves to be complimented for drafting and adopting an excellent Social Charter. Its implementation had been marred until recently by the lack of democratic processes in some of the member countries. There is a radical change in this respect as a new democratic wave has swept through the whole of South Asia during the past four to five years.