Telangana river waters, irrigation & agriculture-5 (Water rights: other perspectives)

Harmon "doctrine"

Harmon "doctrine", more correctly the assertion of "absolute territorial sovereignty", is attributed to the former US Attorney General Judson Harmon. This assertion is sufficiently important to this study to warrant a brief discussion.

Stephen C. McCaffrey in his work "The Harmon Doctrine One Hundred Years Later: Buried, Not Praised" offers insights into the origin of the "doctrine" as well as its applicability.

McCaffrey explains (page 3) absolute territorial sovereignty as a concept "according to which a state could do virtually as it pleased with the portion of an international watercourse within its territory- at least short of changing its course so it entered the downstream state at a different location- irrespective of the harmful consequences in the downstream state".

The assertion is traced to Harmon's 1895 opinion in response to the Department of State's request on the dispute raised by Mexico over the waters of Rio Grande.

McCaffrey quotes (page 17) Harmon: "The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory". He argues (page 20) Harmon's premise is based on a misinterpretation and selective reading of the supreme court's decision.

As it turns out, the Harmon opinion was not used by the US Government in its response to the Rio Grande dispute. McCaffrey writes (page 33): "In a number of instances the United States has taken positions inconsistent with the Harmon Doctrine. The arguments of the United States in these cases tend to reinforce the conclusion that the Harmon Doctrine represented advocacy in a particular case rather than a statement of what the United States objectively regarded as a principle of international law".

Even though the "doctrine" that McCaffrey calls "perhaps the most notorious theory in all of international natural resources law" has never been used to determine water rights anytime, it has been invoked on several occasions. Karnataka invoked this indirectly (and unsuccessfully) before the Cauvery Water Disputes Tribunal (CWDT). Peter Gleick in his article "Whose water is it? Water rights in the age of scarcity" calls the three countries (China, Turkey & Burundi) that voted against Convention on the Law of the Non-navigational Uses of International Watercourses "upstream nations who want to apply the Harmon doctrine on their major rivers to the detriment of their downstream neighbors".

The theoretical opposite of the Harmon "doctrine" is the principle of "absolute territorial integrity". We will encounter this in one form or the other later in the study.

"Modern" water rights

Having started the discussion on water rights with Hodgson's definition, it may be fitting (or ironic?) that I return to Hodgson's main focus i.e. "modern" water rights towards the end of the discussion on this subject.

Hodgson provides a variety of reasons for the origin of modern rights. These include the inadequacy of land based approaches, the transition from socialist to market economics etc. He also delves briefly into the associated concept of "transferable water rights" (TWR) that are amenable to trading. A detailed discussion on these factors as well as most of the details in Hodgson's publication is beyond the needs of this study.

Hodgson describes (pages 46-47) the "nationalization" of water resources (including ground water) as the first step towards the establishment of "modern" water rights. This effectively takes out water from the "negative community" and bestows the "ownership" and/or "control" in the state. He cites examples of several countries that enacted laws or issued "water codes" to formalize the change. Most of the examples relate to the period after 1989.

Hodgson demonstrates the next step of institutionalizing water resources management in some detail. He proceeds to describe the other steps such as assignment of rights and involvement of stakeholders. He includes examples of Albania, Uganda, Victoria, Italy, Morocco and several other countries.

The details of Hodgson's commendable work are unnecessary to the purpose of this study. It is sufficient to acknowledge the following:

·         The "modern" rights regime is expected to recognize all "existing" rights

·         The only reference to India relates to the selling of ground water that Hodgson acknowledges has "nothing to do with water rights or the trade in water rights except to demonstrate that farmers and other water users understand that water has an economic value"

The former is not surprising given similar "grandfather clauses" are common in most transitions. The latter is also on expected lines based on the widely prevalent notion of "negative community" in India. It may be noted here the National Water Policy, 2002 (NWP) issued the Ministry of Water Resources (MoWR), India, does not take up either "nationalization" of water resources or the "economic value" of water.

In summary, the emerging concept of "modern" water rights is by no means established well or widely accepted. In the Indian context, it could be much more difficult for this to evolve. The concept is likely to face fierce resistance from those who portray water as a "commons". Given that these scholars dominate the water discourse in contemporary India, it is doubtful if the concept will be relevant to Indian water scenario anytime in the near future. The idea, especially the possibility of trading water rights, is nevertheless interesting for future thinking.

An interesting point in Hodgson's publication is that it does not prescribe how water rights should be assigned. This may be because it would vary between nations based on law, custom and needs. The major focus is on the management of rights and this needs to be welcomed. The fact that some countries have implemented the concept of "water as an economic good" is incidental and not integral to the process.

Nature of water

As the previous section on "modern" water rights touches on water as a tradable commodity, it is important we delve slightly deeper into the subject. This requires us to understand the intrinsic nature of water as applied to human endeavors.

KK Lahiri has authored a work titled "The Genesis and Evolution of the Inter-State River Waters Disputes Act, 1956- a Study”. The introduction and first part (titled "Proprietorial and other Rights in Flowing or Running Waters") is available as an article made available by the Indian Law Journal. Lahiri citing Roscoe Pound on the evolution of res communes. Pound is quoted as saying:

“Pufendorf rests his whole theory upon an original pact. He argues that there was in the beginning a “negative community”. That is, all things were originally res communes. No one owned them. They were subject to use by all. This is called a negative community to distinguish it from affirmative ownership by co-owners. He declares that men abolished the negative community by mutual agreement and thus established private ownership. Either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of negative community was conceived to be a further necessary implication”.

Lahiri demonstrates that land ceased to be a negative community while running water, air & light continue to remain so. He concludes "Thus, unlike land, no individual, state or government can own running waters like land or territories".

R. Ramaswamy Iyer, former MoWR secretary and a prolific scholar on water matters, summarizes three popular alternate views about the nature of water in the article "Water: from Problems and Issues to Questions of Law" (keynote address at the IELRC 2006 workshop on "Water, Law and the Commons"):

·         Water as a basic right

·         Water as an "economic good"

·         Water as "Common Pool Resource (CPR)"

Iyer reiterates the "negative community" status of flowing water and postulates the public trust doctrine that holds "water and other natural resources are not owned by the state but held by it in trust for society". He suggests the doctrine should not be limited to state vs. society alone but needs to extended (e.g. between present & future generations).

Nirmal Sengupta in the article "Common Property Water–a Comparative Perspective" (another keynote address at the IELRC 2006 workshop) posits the "pre-eminence of state" doctrine. He explains this is why the government, when starting an irrigation project, acquires land for "public purpose" but does not feign to formally acquire water rights.

Joseph Dellapenna in his article "Markets for Water: Time to Put the Myth to Rest?" (published by the Journal of Contemporary Water Research & Education) summarizes his own arguments against the concept of water markets.

He begins by observing markets in flowing waters have been extremely rare. He asks "If markets for water are so good, why are they so seldom used?" He writes that economists and other water market proponents have no reasonable answer "except to denigrate their critics as holding cultural, religious, even mystical prejudices about water". He concludes "This attitude, however, overlooks that water is not like other resources".

Dellapenna captures the two essential qualities of a "public good" like flowing water: indivisibility and "publicness". He defines indivisibility as meaning "goods cannot be divided among the consuming public so as to allow some consumers access to the resource while excluding other potential consumers". Publicness means "the resource is shared freely (if not equally) among the group—consumption by one person does not, at least under most circumstances, interfere with consumption by others". He concludes a public good as "one that all within the relevant public must enjoy more or less equally, or none will enjoy the good at all".

Dellapenna colorfully asks "How much can one charge others for viewing the blue sky over one’s property?" He goes on to answer "The only costs, if any, associated with a public good are the costs of capture, transportation, and delivery, not a cost for the good itself".

Dellapenna obliquely refers to the CPR angle by citing "the tragedy of the commons” that led to obliteration of precious resources. He cites other options including "water banks" and the "public property option".

The differences of opinion between two eminent experts (Iyer & Dellapenna) provide interesting clues about the future dimensions the water debate is likely to take. Some of the positions are nuanced to a good extent. For the purpose of this study, it is sufficient to acknowledge the Indian situation of public trust should not result in the tragedy Dellapenna warns us of.

Turning to water pricing, Iyer argues against the extreme positions of "water free for everyone" and "full cost recovery". Without making any firm recommendations, he cites factors that are suggestive of a via media. He is pragmatic on full pricing and writes: "At the same time, the principle of economic pricing is valid not merely in the case of economic uses such as irrigation or industry, but even in respect of domestic water supply to the relatively more prosperous and of course the rich. There is no reason why the middle and upper classes should not be charged the full economic price for the water that the public system delivers to them".

"Boundaries don't protect rivers, people do": Aristotle