Water Rights and Social Justice in the Mekong Region

Kate Lazarus, Bernadette P. Resurreccion, Nga Dao, Nathan Badenoch

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136538865
• Edition: 1
• Topic: Ciencias biológicas
• Subtopic: Ecología

The Mekong Region has come to represent many of the important water governance challenges faced more broadly by the mainland Southeast Asian region. This book focuses on the complex nature of water rights and social justice in the Mekong region. The chapters delve into the diverse social, political and cultural dynamics that shape the various realities and scales of water governance in the region, in an effort to bring to the forefront some of the local nuances required in the formulation of a larger vision of justice in water governance. It is hoped that this contextualized analysis will deepen our understanding of the potential of, and constraints, on water rights in the region, particularly in relation to the need to realize social justice.

The authors show how vitally important it is that water governance is democratized to allow a more equitable sharing of water resources and counteract the pressures of economic growth that may pose risks to social welfare and environmental sustainability.

1

Water Governance and Water
Rights in the Mekong Region

Nathan Badenoch, Kate Lazarus,
Bernadette P. Resurreccion and Nga Dao

The Mekong region has come to represent many of the important water governance challenges faced more broadly by the mainland Southeast Asia region. The development and environment issues raised in this complex arena of economic growth and integration highlight the importance of water, at all levels: locally, nationally and regionally. While technology and engineering dominated the period of rapid growth in the 1980s and 1990s, moving into the 21st century there has been increased awareness among researchers of the urgent need to refocus thinking on the processes of decision-making through which the region’s waters are utilized, developed, transported, degraded or conserved (Lebel et al, 2007b; Molle et al, 2009). Despite macroeconomic figures suggesting that the region is well on the way to poverty eradication, a disaggregated look at socio-economic development indicators tells a story of inequality across sectors of society (ADB, 2007a,b; UNDP, 2009; CIE, 2010). The need for access to clean water at predictable times is common to all in society, but access to the resource is predicated on access to the processes of governance that determine who gets water, in what quality and quantity, and at what time. Demands on the water resources have grown (ADB, 2007a,b), creating new situations of scarcity that are dependent not only on topography and climate, but also the capacity of societies to manage claims on the flows of water. Research has shown that when water crises occur, it is most frequently a result of continual mismanagement and insufficient governance (Biswas, 2010).

This book is concerned with the governance of water resources in the Mekong region, which is considered in its broadest sense here to include the countries of Burma/Myanmar, Cambodia, China, Laos, Thailand and Vietnam (see Box 1.1). Taking a wide regional frame of reference makes sense from the social, economic and hydrological perspectives, as it recognizes the inter-linkages between people and nature beyond the watershed level. But some of the steepest challenges arise from the politics of transboundary cooperation, coordination, decision-making and problem solving. There is a range of institutions involved in trying to address regional governance in the Mekong, all with differing mandates (see IUCN et al, 2007; Osborne, 2009; Lee and Scurrah, 2009). For example, there is continued debate over the effectiveness and relevance of the Mekong River Commission (MRC), a regional body with a mandate over the ‘lower’ Mekong part of the region, but lacking the membership of China (IUCN et al, 2007; Dore and Lazarus, 2009; Lee and Scurrah, 2009), while national governments push on with the support of projects and programmes bilaterally and through the Asian Development Bank’s Greater Mekong Subregion Initiative that directly or indirectly affect the region’s water resources and those who depend on them.

BOX 1.1 THE MEKONG REGION AND THIS BOOK

The Mekong region covers the territories, economies, politics and peoples of Burma/ Myanmar, Cambodia, China, Laos, Thailand and Vietnam and is home to over 325 million people. Major rivers include the Irrawaddy, the Nu-Salween, the Chao Phraya, the Lancang-Mekong and the Red River. These rivers provide lifelines to numerous peoples whose language, religion and culture have been heavily shaped by the dynamic nature of the region.

The region is home to a range of natural habitats. Upper catchments provide livelihood opportunities for small-scale agriculture. The rich biodiversity within the region, especially the inland fisheries in the Mekong River, is fundamental to the viability of natural resource-based rural livelihoods of the people. These livelihoods are founded on the integrated use of a wide range of natural resources that have adapted to the seasonal changes of the region. However, knowledge of the region’s rich human and natural diversity is still considered rudimentary as scientists continue to discover new languages and animal species (WWF, 2008). Moreover, the Mekong region is slated to be significantly impacted by climate change in the future (WWF, 2009; TKK and SEA START RC, 2009). As the economy and people are intrinsically linked to the natural resource base, the consequences of climate change add pressure to the impacts also expected from infrastructure development projects that will have huge impacts on the people of the region in the short to medium term (Keskinen et al, 2010).

Despite discussion of the social and environmental impacts of large-scale water infrastructure projects, development of water resources maintains a central place in the economic vision of the region’s national-level decision-makers. But concerns over the social, environmental and economic outcomes of interventions in the water sector, bolstered by an increasingly high profile debate about water for livelihoods, persist among researchers, activists and many groups who might potentially be affected. In taking up ‘social justice and water rights’ at a regional level, this book seeks to explore different aspects of the relationship among people and the processes of governance. Water governance is more than just about water and related services but involves issues of access to decision-making and information, participation and justice, and ethnicity and gender. Equally important are the linkages between the processes of governance, the outcomes of the decisions taken and the possibilities that are created at different levels and scales by actors in specific contexts.

The chapters of this volume draw their analyses and perspectives from a broader range of water governance challenges faced by the region: large-scale infrastructure projects to impound or move large quantities of water, impacts of market transition on agriculture and aquaculture, competition between industrial and domestic water uses, and the vast uncertainties associated with climate change. These analyses are indicative of a number of the most important challenges facing a region where national economies show dynamism but the political status quo remains firm. From this point of view, one practical question is whether the comparatively conservative governance characterized by the nation states of the Mekong region is able to recognize the challenges, define the agenda and make the necessary adaptations to meet the needs of an economically dynamic but volatile regional economy. The allocation and enforcement of rights among sectors of society forms a foundation for the establishment of predictable and equitable social relations, especially with regards to claims on resources. If nested within robust governance processes, rights can provide a framework for resilience in the face of uncertainties that accompany socio-economic development.

WATER AND RIGHTS

In development discourse, there is a tension between ‘water as a right’ and ‘water as an economic good’. The question of water rights has held a central position within efforts to reform the legal and institutional frameworks around the globe (Bruns and Meinzen-Dick, 2005). Despite this global trend, the Mekong region as a whole has not made a decisive move towards clear legal frameworks that define rights over access to and management of water. Rights in this sense are construed as legally recognized and backed claims over a resource.

Water rights are established and maintained through processes of negotiation. Bruns and Meinzen-Dick (2001) offer four areas in which rights play a central role in the negotiation of water resources: 1) renegotiating rights, which involve intervention and reorganization of regimes; 2) formalization of rights, strengthening existing claims and regimes; 3) basin governance, comprising the negotiation of users linked in natural systems; and 4) inter-sectoral transfers, which entail negotiation across systems. Indeed, the area of water rights is one in which pluralistic legal frameworks are essential to capturing the complex dynamics of interaction among competing claims (Neef et al, 2006).

One neoliberal approach to addressing the problems of water allocation in an age of growing competition has been to design water-pricing schemes. This essentially entails promoting the commodification of a resource that in many settings was previously treated as a common property resource not managed by market-based mechanisms. The economic principle of allocating water according to capacity to pay assumes much about the social aspects of resource management. Observing the adverse impacts that this allocational principle had on the rural poor and other marginalized sectors of society, a global response within civil society to the perceived problems of this type of neoliberal intervention in the water sector led to a rush to a ‘water as a human right’ banner. While legal rights assuring access to water are surely an important part of any effort to reform water governance, critics argued that asserting a human right at the global or regional level did very little to improve the situation of access to water or the decisions that affect water. An analytically more nuanced and strategically more sound approach, it was argued, would be a shift back to a framework that treats water not as an inherent right of humanity and not a commodity, but as a common-property resource (Bakker, 2007).

The authors in this book take a broad approach to water rights, writing about not only rights directly associated with access to water but including other rights that affect people’s ability to access the areas of governance, through formal and informal means, that affect water resources decision-making. It is also necessary to examine how rights are created, negotiated, asserted, contested, ignored or denied at various levels of decision-making, especially for those that are adversely affected. An improved understanding of these key dynamics should be clearly linked to the social equity and justice outcomes that are observed. This means moving beyond the legalistic exercise of creating laws and decrees, and moving to an analysis that is more firmly rooted in real-life, real-time challenges of implementing, adapting and revising these arrangements for water rights, among the sectors of society that face the most serious barriers to exercising those rights. This perspective underscores the importance of outcomes in terms of equity rather than efficiency.

EQUITY AND SOCIAL JUSTICE

With equity at the forefront of our analytical focus, we are working with a theoretical concept of social justice, in a region with vastly differing economic development trajectories, diverse political traditions and administrative systems, and complex mosaics of human and biological diversity. Social justice is not concerned with merely a narrow conception of the benefits to individuals, but rather with what is good for the society as a whole. This requires an inclusive approach that examines a broad range of actors and interests (Capeheart and Milovanovich, 2007). Nonetheless, in a region where state-driven models of resource-based development have been dominant, we also see a need to give special focus to those sectors of society that are marginalized from the critical areas of governance. In his recent critique of the mainstream philosophy of justice expounded by Rawls (1971), Sen has argued for a more realistic ‘idea of justice’ – one that focuses on eliminating injustices, to replace past conceptions that were concerned more with finding an ideal form of justice. Although the authors of this volume do not seek to propose any models of social justice for the region, Sen’s (2009, p106) assertion that ‘a theory of justice must have something to say about the choices that are actually on offer, and not just keep us engrossed in an imagined and implausible world of unbeatable magnificence’, offers a challenge to unpack the prescriptive and theoretical frames of governance principles such as participation and access, and move beyond legalistic approaches to mediating not only the interactions between people and their environments, but between people who share a resource as well.

Two main aspects of justice (Capeheart and Milovanovic, 2007) are helpful here: distributive and retributive justice. The two are clearly linked and necessary for a comprehensive conception of social justice, but separation of the two assists us in identifying the entry points of discussing justice in concrete and contextualized terms. Distributive justice is ‘how rewards and burdens are distributed’, that is to say an interactive set of decisions about what is fair and what is not, in effect the processes of negotiating values by which outcomes are assessed. Retributive justice is the ‘mechanisms of accountability’, meaning the interactions that take place within a set field of values to ensure that fairness is maintained. The idea of distributive justice is considered a dynamic, process-oriented framework that allows us to explore a number of different cases. Thus the practical concern with social justice discussed by this book’s authors seeks to uncover some of the ‘choices on offer’, examining them within the socio-economic, cultural and political realities of the Mekong region.

WATER GOVERNANCE AND WATER RIGHTS

‘Water governance’ is the arena in which these issues are played out. The Global Water Partnership definition of water governance, which has been widely cited, is the range of political, social, economic and administrative systems that are in place to develop and manage water resources, and the delivery of water services, at different levels of society (Global Water Partnership, 2002). We also refer to water governance as:

the ways in which society shares power with respect to decisions about how water resources are to be developed and used, and the distribution of benefits and involuntary risks from doing so. It includes the full spectrum of influences from shaping agendas and deliberating options through the design of institutions and laws through the way these are implemented in the practices of day-to-day management of water. (Lebel et al, 2010)

Water governance has been widely studied by academics and development researchers, with particular emphasis on the role that institutions play, who has access and who participates in decision-making realms (e.g. Biswas et al, 2005; Lebel et al, 2005; Molle and Wester, 2009; and Dore and Lebel, 2010).

Yet, in reality, modes of water governance are highly contested across sectors of society (Molle, 2008). Managing water resources for the socio-economic well-being of people and the robust functioning of ecosystems is a complex challenge. Stakeholders are diverse and have competing demands for water, as well as being highly differentiated in terms of influence over decision-making. Insufficient frameworks for information provision at the national and regional level limit the scope for inclusive governance processes surrounding water decision-making.

Furthermore, significant imbalances in economic and political power colour the reality of water decision-making. Scale and level politics play a role in defining who participates and with what role in deliberations around water decision-making (Dore and Lebel, 2010). The end result is that trade-offs are not well calculated, risk is distributed to sectors of society that cannot bear the consequences (Lebel and Bach, 2009) and the long-term viability of socio-economic development founded on the region’s water resources is threatened. Inevitably, how these complex interactions play out is a product of the governance structures and processes through which decisions over water management and development are made.

In particular, spaces for participation by local people are not neutral but are shaped by power relations that both surround and enter them (Cornwall, 2004). Building on the concept of negotiation spaces, there is a need to look closely at levels of power in terms of how spaces are created, the levels of engagement within these spaces and the degree in which power relations play a role within them (Hickey and Mohan, 2004). Participation spaces for poor people are constantly opening and closing, thus creating a dynamic relationship between and among stakeholders as one asserts and determines their human right to manage and access water. However, in practice, the emphasis on the economics imposed by national development plans means that the principle of efficiency dominates and the principle of equity falls victim to the forces of the market. Concerns of this type were addressed in the UNDP 2006 Human Development Report that looked ‘beyond scarcity’, and highlighted the poverty–power nexus in decision-making over water resources.

It is commonly argued that the role of water rights in contributing to basic livelihood security and social justice is of eminent importance (Bessette, 2006). This book takes livelihood security as a departure point for its exploration of justice and rights, given the prominent position of poverty alleviation within the socio-economic development plans and programmes implemented by national government with the support of international development agencies, bilateral development assistance, and non-government organizations. Many of the decisions taken at this level have direct and indirect impacts on people’s access to water. There are great imbalances of power between the mechanisms of the state and the voices of the citizens embodied in the decision-making structures, governance processes and flows of resources involved in national development efforts. However, it is important to keep in mind that non-state actors are diverse within countries and across the region, especially as regards those sectors of soc...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Figures, Tables and Boxes
• Contributors
• Preface: About M-Power
• Acknowledgements
• Acronyms and Abbreviations
• 1 Water Governance and Water Rights in the Mekong Region Nathan Badenoch, Kate Lazarus, Bernadette P. Resurreccion and Nga Dao
• PART I – PARTICIPATION IN DECISION-MAKING
• PART II – SOCIAL DIFFERENCES AND ACCESS
• PART III – COMPETING DEMANDS AND PROTECTING THE RIGHTS OF THE MARGINALIZED
• PART IV – CLIMATE CHANGE AND THE RIGHTS OF THE VULNERABLE
• Part V – CONCLUSION
• Index