Groundwater Governance: A Global Framework for Country Action - Thematic Paper 6: Legal and Institutional Frameworks

Legal frameworks play a crucial role for effective groundwater governance. They provide the basis and starting point for policy development and they turn policy decisions into rights and obligations. This paper discusses key challenges that have to be addressed if legal rules are to make an effective contribution to getting a handle on aquifer depletion and degradation – both with respect to the domestic and the international plane. At the domestic level there is worldwide a tendency to modernize water laws and to pay more attention to groundwater management and protection in domestic legislation. With the exception of a few jurisdictions groundwater resources now tend to be vested in the state or put under state control although this may not be felt at the local level. Government administered legislation tends to replace property minded doctrines and permit-based access to groundwater resources has become a standard approach. Such administrative water rights systems work very well in high-income countries with highly formalized water economies where also registration, metering, charging and other obligations are easy to implement. Yet, highly complex requirements such as those of the EU Water Framework Directive and its daughter directive on groundwater remain challenging even for EU member states. Such approaches have often failed in other regions such as Asia with high population density, de facto open access to groundwater, little information about the characteristics of aquifers and multitudes of tiny private users. In much of Asia and Africa local and customary rules shape individuals’ approaches to groundwater. It is a key question how to incorporate de minimis abstractions, customary water uses and local level institutional arrangements within a formal water management framework. Key factors for laws that work in practice are high quality of the legal provisions, which address all relevant issues and are fair, equitable, coherent and enforceable; well-sequenced and planned processes of transition and change; operational capacity of the water administration to implement the law; social consensus that supports compliance; stakeholder participation in legislative, planning and management processes, including user groups; and coherent and supportive wider socio-economic trends and policies. Ample experience from around the world has made it abundantly clear that water law only works if it is flanked by supporting policies, awareness raising, technical solutions and, very importantly, the human, administrative and financial structures for its implementation. For many countries and situations this is a tall order with important socio-economic and financial implications. These costs need, however, to be offset against the costs of inaction that will often still be higher – and most likely be borne by those who are already disadvantaged. For the governance of transboundary aquifers the development of International law has only lately picked up pace. While until a few years ago it offered very little guidance on how to manage and protect transboundary aquifers, recently developments at the global, regional and transboundary aquifer level have marked the beginning of a phase in which international law might begin to play a bigger role in governing these resources. Nonetheless a shift at the transboundary level from notions of sovereignty to the notion of a shared resource is yet to take hold in many regions. Important inroads are being made with regard to specific transboundary aquifers and also at the regional and global level. These developments seem to herald acceptance of the shared nature of problems, whether they be of overdraft or of pollution or both, or the mere anticipated threat of them, across the borders. States have geared up to deal with them in cooperative or coordinated fashion in a number of ways from informal arrangements to a few bi- and multilateral treaties for specific aquifers. With respect to tangible governance outcomes and immediate benefits to be realized cooperation at the aquifer level is most desirable, ideally guided by regional and global instruments, including most notably the landmark draft 2008 Articles on the Law of Transboundary Aquifers developed by the International Law Commission.