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Changing conceptions of rights to water

What do we really mean when we talk about a right to water? A human right to water is a cornerstone of a democratic society, but what form that right should take is hotly debated.

irrigationArticle by Bettina Lange and Mark Shepheard, from the Oxford University Press blog

Recently 1,884,790 European Union (EU) citizens have signed a petition that asks the EU institutions to pass legislation which recognizes a human right to water, and which declares water to be a public good not a commodity.

But a right to water has various facets. It includes rights of economic operators, such as power stations and farmers to abstract water from rivers, lakes, and groundwater sources. The conundrum here is that an individual human right to water, including a right to drinking water and sanitation, can be in conflict with the rights of economic operators to water. More importantly such human rights to water may be in conflict with a right to water of the environment itself. The natural environment needs water to sustain important features such as habitats that support a wide range of animals and plants.

There is a growing trend under the label of ‘environmental stewardship’ that prompts us to think not in terms of trade-offs between different claims to water, but to change how we think about what a right to water entails. Environmental stewardship means that human uses of water – by individual citizens, consumers and economic operators – should pay greater attention to the needs of the natural environment itself for water. This raises some thorny issues that go to the heart of how we think about fundamental rights in contemporary democracies. Should we abolish the possibility to own natural sources, such as water and thus limit the scope of private property rights? Should we develop ideas of collective property, which involves state ownership of natural resources exercised on behalf of citizens? Should we simply qualify existing private property and administrative rights to water through stewardship practices? It is the latter approach that is currently mainly applied in various countries. How does this work? Water law can impose specific legal duties, for instance on economic operators to use water efficiently, in order to promote stewardship practices. Whether this will be of any consequence, however, depends on what those who are regulated by the legal framework think and do.

recent study therefore explored how English farmers think about a right to water and its qualification through stewardship practices. The study found that three key factors shape what a right to water means to farmers.

First, the institutional-legal framework that regulates how much water farmers can abstract through licences issued by the Environment Agency defines the scope of a right to water.

Second – and this struck us as particularly interesting – not just the law and the institutions through which water rights are implemented matter, but also how natural space is organized. The characteristics of farms and catchments themselves, in particular whether they facilitated the sharing of water between different users, influenced how farmers thought about a right to water. Water sharing could enable stewardship practices of efficient water use that qualified conventional notions of individual economic rights to water.

Third – and this touches upon key debates about the ‘green economy’ – the economic context in which rights to water are exercised has a bearing on how ideas about rights to water become qualified by environmental stewardship.

In particular ‘green’ production and consumption standards shape how farmers think about a right to water. There are a range of standards that have been developed by the farming industry, independent certification bodies, such as the Soil Association, as well as manufacturers of food stuffs to whom farmers sell their produce and supermarkets. These standards prompt farmers to consider the impact of their water use on the natural environment. For instance, the Red Tractor standard for potatoes asks farmers to think of water use in terms of a strategic plan of environmental management for the farm, which also addresses ‘accurate irrigation scheduling’, ‘the use of soil moisture and water application technology’, as well as ‘regular and even watering’. These are voluntary standards, but they matter. They can render farmers’ practices in relation to water stewardship more transparent and thus also promote accountability for the use of natural resources.

Supermarket standards were considered as most influential by farmers, particularly in water scarce areas of the United Kingdom such as East Anglia. But these standards revealed an interesting tension between their economic and environmental facets.

Somehow paradoxically green consumption and production standards could also reinforce significant water use by farmers, such as spray irrigation in order to achieve good product appearance. For instance, some manufacturers of crisps seek to reduce the impact on water use of the crops they source for their products. But farmers who want to sell their potato crops to crisp manufacturers still have to achieve ‘good skin finish’, because ‘nobody wants scabby potatoes’!

So, next time you go grocery shopping ask how your consumer choice shapes a right to water.

Dr Bettina Lange is an Associate Professor in Law and Regulation at the Centre for Socio-Legal Studies, Oxford University. Her research draws on social theory and qualitative empirical methods in order to understand how political and economic contexts shape how environmental legal rules are interpreted and implemented. Dr Mark Shepheard is a postdoctoral fellow at the School of Law at the University of New England, Australia. His research interests are natural resource stewardship, regulation and governance, virtue ethics as well as land and water management obligations. Together, they are the authors of ‘Changing Conceptions of Rights to Water? An Eco-Socio-Legal Perspective‘, which won the 2014 JEL annual Richard Macrory best article prize and is available to read for free for a limited time in the Journal of Environmental Law.

 

Prize-winning article on Changing Conceptions of Rights to Water

Congratulations to Dr Bettina Lange at the Centre for Socio-Legal Studies who has been awarded the Annual Richard Macrory Prize for the Best Article in the Journal of Environmental Law.

The article “Changing Conceptions of Rights to Water?—An Eco-Socio-Legal Perspective” investigates the meaning of a ‘right’ to water, focussing on water use for agricultural production.

The authors explore how the concept of private property rights to water relates to the idea of water stewardship, which obliges stakeholders to protect water resources for the benefit of the wider public.

The article highlights changes to environmental regulation in the UK in recent years where there has been a greater emphasis on water stewardship aimed at tackling the risks of water scarcity. For example, water abstractions have been further regulated through the Water Act 2003 and the draft Water Bill (now the Water Act 2014).

The authors conducted research on how farmers in England think about their right to access and use water and how this understanding is changing in light of developments in UK water regulation. They develop a eco-socio-legal perspective for understanding how conceptions of rights to water are generated.

The article is now available for free online here

From rights to results in rural water services

New evidence to translate the human right to water into measureable results in rural Africa is presented in a new report funded by UK Department for International Development and led by Oxford University.

rural water suply

 

Institutional transformations are required if Africa is to deliver the universal Human Right to Water to 275 million rural people without improved water services. Improving the reliability of one million handpumps which should deliver drinking water to over 200 million rural Africans will be a major contribution to translating water rights into measureable results. This study tests a new maintenance service model over a one year period in rural Kenya using mobile-enabled data to improve operational and financial performance by reducing risks at scale.

The report, produced by the Smith School Water Programme, highlights results that have led to:

  • a ten-fold reduction in handpump downtime (days not working),
  • a shift to 98 per cent of handpumps functioning,
  • a fairer and more flexible payment model contingent on service delivery,
  • new and objective metrics to guide water service regulatory reform,
  • a revised financial architecture shaped by an output-based payment model.

The model outlines a new and replicable framework for policy and investment behaviour informed by rural water users’ more expansive views of the design and delivery of rural water institutions than currently prescribed.

Report launched at ‘Smart Handpump’ day

The report was launched at an event at Kellogg College on 5 March  hosted by the Oxford Centre for Affordable Healthcare Technology, Smith School of Enterprise and the Environment, School of Geography and the Environment and Department of Engineering Science.

Attendees from DFID, ARM, Sequoia Technology, Oxfam and ESRC were invited to meet the ‘Smart Handpump’ that has been installed in the college grounds. Smart Handpumps use a mobile-enabled transmitter which sends data on pump usage, rapidly detecting any failures and enabling repairs to be made. The technology is currently being piloted in rural Kenya and feeds into ongoing work at Oxford University on improving institutions to measurably reduce poverty.

Researcher Patrick Thomson demonstrating the handpump to Nick Liddington (MD of Sequoia Technology Group) Steve Sydes (Commercial Director of Sequoia Technology Group).

Researcher Patrick Thomson demonstrating the handpump to Nick Liddington and Steve Sydes (Managing Director and Commercial Director of Sequoia Technology Group).

Download the full report

Economic Rights and Regulatory Regimes: is there still a ‘right’ to water?

On Tuesday 19 March, a workshop at Oxford University gathered 55 participants from the Department for the Environment, Food and Rural Affairs (Defra), the Environment Agency, the National Farmers’ Union, water companies, along with academic experts to discuss the right to water in the light of increasing regulatory intervention.

 

The event was convened by Dr. Bettina Lange, Centre for Socio-Legal Studies, Oxford University and Dr. Mark Shepheard, McGill University, in association with the Foundation of Law, Justice and Society and Wolfson College.

The workshop’s theme was inspired by increasing concerns about water scarcity issues in the face of pressures from climate change and reforms to the abstraction licensing system currently being discussed for England and Wales.

The first panel, which invited speakers to ‘rethink’ water rights through stewardship, was opened by Professor Karen Morrow from Swansea University who provided an extensive overview of the common law applicable to water regulation. Morrow highlighted the links that water regulation has not only with property law but also with administrative environmental and human rights law. She introduced the new and more radical approach of granting rights to nature to protect water resources. Dr. Bettina Lange and Dr. Mark Shepheard shared their findings from empirical socio-legal research which mapped how farmers think about a right to water and identified key factors that shape such conceptions.

Henry Leveson-Gower, Head of Defra’s Future Water Resource Management Project, opened the second panel which explored the use of market mechanisms for promoting water stewardship. He explained the need for a reform of the current water abstraction licensing system, highlighting that the current system is not flexible enough to respond to alternating floods and droughts due to climate change. Leveson-Gower urged the need for more efficient use of water resources and outlined three economic incentive-based options currently being considered by the government. 

Alice Piure, Strategy & Policy Analyst at Anglian Water, presented interesting findings from a research project that explored the use of various types of water trading and their contribution to promoting water stewardship. Finally, Jon Stern from City University London discussed market-based approaches to dealing with periodic water scarcity, in particular the sale of raw water from one region to another.

The third panel offered academic perspectives on state regulatory approaches to water stewardship. Donald McGillivray of Sussex University gave a historical overview of the approach taken by the common law to regulate water stewardship. He argued that the current regulation gives mixed legal messages about water rights and sustainability as there is no real clarity regarding the regulatory goals.

Prof. Bill Howarth of Kent University pointed to the significant advances that have been made in regulation to anticipate and manage the risks of unpredictable events such as floods or droughts, but argued that much more must be done to effectively enhance ‘water security’.  Dr. Sarah Hendry from Dundee University closed the session with some contrasting insights from Scottish water regulation.

The final panel involved a round-table discussion regarding the future research agenda in water stewardship. Various themes were raised, including the challenge of reconciling potentially different competing regulatory goals, specifically ‘water security’ and ‘food security’, as well as challenges to and opportunities for developing cross-disciplinary perspectives on water stewardship.

By Sebastián Castro, DPhil Student, Centre for Socio-Legal Studies, Faculty of Law, University of Oxford.

View workshop presentations and podcasts