Synthesis Note for Theme 3 Legal Issues for IMT

Theme coordinator: Ilja Betlem, FAO, Development Law Service

The legal framework for IMT includes a wide variety of issues. The main issues were pointed out in the Theme Note. Contributions to the e-mail conference have helped to illustrate these and have also raised some additional relevant issues. The purpose of the legal framework is to create a transparent set of relations between the irrigation administration and the farmers that clearly define the respective rights and obligations in order to make IMT possible. The Theme Note was divided into three main topics:

1. the legal framework for irrigation management transfer,
2. the characteristics of WUAs and
3. issues related to water rights.

The main issues related to the legal framework for IMT concern the type and nature of management responsibilities that are transferred, as well as the legal instruments that can be utilised to effectively implement IMT (agreement, contract, act of parliament, regulation). It has been pointed out that the tasks and responsibilities of both the government and WUAs (or other responsible counterparts in IMT) in the management of irrigation facilities and services should be clearly spelled out, and that the relationship between governments and WUAs should be characterised by a degree of reciprocity. Governments have responsibilities and liabilities towards WUAs, and vice versa. What legal instruments should be available to either party to effectively enforce the respective obligations? Enforcement through the court system can be ineffective, time-consuming, costly, and may have undesired side-effects. Alternative means should be developed and studied.

Another relevant question raised concerns about the exact scope of the legal framework for IMT. Should irrigation and drainage be managed separately or jointly? The relevance lies in the fact that the drainage of irrigation water raises a number of separate legal questions regarding the responsibilities and consequent liabilities of a WUA. Also, to what extent should the characteristics of water resources affect the legislation? Should IMT legislation comprise both surface and groundwater resources? These problems deserve further analysis.

Moreover, some cases reported by participants highlight the difficulties in implementing IMT, even when the legislative framework has been completed and established. A continuous interest in and attention by governments to the development of IMT programs could provide a significant help and would reflect a continued political commitment. The engagement of governments in IMT, and, to a certain extent, in regulation of WUAs and provision of support services to them is necessary to ensure a smooth progress in the implementation of IMT programs. What form should this involvement take? Any regulatory powers over WUAs by a government administration should be carefully laid down in legislation. It would form an important part of the relationship between the government and WUA's. Such regulation should be fully accepted by the WUAs.

Another relevant issue is the settlement of disputes among WUAs and other water users in dry periods. This would likely be part of the larger legal framework for water allocation and water rights. What should be the role of the government?

Various aspects of the functions and internal operation of WUAs have been mentioned by participants. A significant problem connected to the development and consolidation of WUAs is their internal dynamics. It is not clear, however, how the legislative framework of WUAs could better reflect the social and religious environment of WUAs, or how it should better incorporate customary law systems regarding the management of water resources and water rights. This is an issue that needs further investigation.

Another issue raised is related to the financing of WUAs. Financial resources of WUAs should not be limited to only the water charges that they collect. However, it is advisable that WUAs have an effective role in the setting of the rates of fees and charges to be levied on their membership. WUAs would need to be in the position not only to effectively collect dues and charges from their membership but also to mobilise and receive additional financial resources such as bank loans, donations, tax exemptions, etc. A clear financial setting, including the provision of financial incentives at the formation stage of WUAs, is also important for the establishment of WUAs. In terms of the legal framework, all these considerations are connected to the legal status of WUAs. Related to this is the question of whether WUAs should have full legal capacity and whether they should be established under private or public law.

WUAs need to be actively involved in the decision-making process as well as the implementation of policies at the river basin level. Participation of WUAs in policy making and implementation should be supported by the legislative framework, probably within the larger framework of water management and water rights legislation. The option of forming federations of WUAs would play an important role in this regard. These issues deserve further investigation.

The advantages and disadvantages of restrictive eligibility criteria for WUA membership, including the relevant implications on the allocation of financial and other responsibilities between the landowner and the tenants, need to be taken in due consideration when trying to create effective WUAs. The membership criteria of WUAs are closely linked to issues of equity and effectiveness within the functioning of a WUA. The legal framework must also address and define the enforcement powers a WUA must have in relation to its members; what kinds of sanctions could WUAs impose on their members for non-payment, non-performance of other essential duties or for violating the internal rules of the association?

Finally, issues related to water rights and IMT call for further discussion and examination as an effective IMT program requires a clear and comprehensive system for water allocation. The question whether irrigation schemes would function more effectively if water rights were granted to WUAs collectively instead of to single members of the association is a topic that requires further consideration.

Contact: imt-moderator@fao.org